ATTORNEY GRIEVANCE COMM'N v. GAGE-COHEN
Issue: What sanction should the Court impose upon an attorney who accepts a retainer to perform legal work, abandons the client without doing so, fails to return the unearned fee, and fails to cooperate with the ensuing disciplinary investigation?Holding: Because such actions demonstrate a lack of
competence and diligence, reflect
a failure to communicate with the client, involve an improper
termination of the attorney-client relationship, misappropriate client
funds, and are prejudicial to the administration of justice, disbarment
is the appropriate sanction.
Alleged Violations: Maryland Lawyers’ Rules of Professional Conduct 1.1 (competence), 1.2(a) (scope of representation and allocation of authority between client and lawyer), 1.3 (diligence), 1.4 (communication), 1.5(a) (fees), 1.15 (safekeeping property), 1.16(a) and (d) (declining or terminating representation), 8.1(b) (bar admission and disciplinary matters), and 8.4(a), (c), and (d) (misconduct); Maryland Rules 16-604 (trust account – required deposits), 16-606.1 (trust account recordkeeping), and 16-609 (a) (prohibited transactions); and Maryland Code, Business Occupations and Professions Article § 10-306 (misuse of trust money).
Citation: Misc. Docket AG No. 25, September Term 2013
Opinion
PANEL: Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts JJ.Opinion by McDonald, J.Page 1
This attorney discipline matter concerns an attorney who accepted $2,500 from a client as a retainer for a divorce case, had no further communication with her client, performed no work on the matter, and apparently abandoned her Maryland law practice. The attorney, who did not maintain a separate trust account, deposited the client's payment into a general account and never returned the unearned fee to the client. The attorney did not cooperate with Bar Counsel's disciplinary investigation, failed to respond to the disciplinary charges later filed against her, and did not participate in the proceedings before the hearing judge or our Court. As a result, we have no information that would mitigate the sanction for her misconduct. We hold that she violated multiple provisions of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") as well as related rules and statutes and, based on those violations, disbar her.
As noted above, neither party excepted to the hearing judge's findings of fact concerning the alleged violations. We accept those findings as established. See Maryland Rule 16-759(b)(2)(A). Those findings concerned Ms. Gage-Cohen's failure to follow Page 3 through with her agreement to represent a client in a divorce case, her mishandling of funds related to that representation, and her lack of responsiveness to Bar Counsel's inquiry. On March 14, 2012, Mary L. Turner paid Ms. Gage-Cohen $2,500 with the understanding that Ms. Gage-Cohen would seek a Limited Divorce Agreement and eventually an Absolute Divorce on Ms. Turner's behalf. Ms. Turner also gave Ms. Gage-Cohen several documents, including financial statements and a separation agreement. Ms. Gage-Cohen did not deposit Ms. Turner's $2,500 payment into a client trust account, and did not obtain Ms. Turner's informed, written consent to make other arrangements. The hearing judge found Ms. Gage-Cohen did not maintain an attorney trust account at all in 2012. After accepting Ms. Turner's payment, Ms. Gage-Cohen apparently abandoned Ms. Turner's case. Ms. Turner called and emailed Ms. Gage-Cohen repeatedly over several months, with no response. Eventually, Ms. Turner attempted to terminate the representation and sought a refund of her payment and the return of her documents. But Ms. Gage-Cohen did not respond and did not return Ms. Turner's documents or the unearned fee. Ms. Turner filed a complaint with the Commission on June 14, 2012. On June 22, July 20, and August 17, 2012, Bar Counsel sent letters to Ms. Gage-Cohen at the address on file with the Client Protection Fund requesting her response to the complaint. Ms. Gage-Cohen did not answer any of those requests. Beginning on August 30, 2012, Commission Investigator Dennis Biennas attempted to contact Ms. Gage-Cohen personally. Page 4 She did not answer Mr. Biennas' phone calls, but agreed to speak with him when he arrived unannounced at her office on September 25, 2012. She admitted receiving the letters from the Commission, ascribed her lack of response to "personal issues," and promised to respond within three days. She never responded. In November 2012, Bar Counsel sent Ms. Gage-Cohen a final request, soliciting the following information and records: (1) a response to Ms. Turner's complaint, (2) her reasons for failing to respond to Bar Counsel's earlier requests, (3) her entire client file for Ms. Turner, (4) a statement about Ms. Gage-Cohen's then-pending traffic citations in the District Court, and (5) her attorney trust account records for the period March 2012 through October 2012. Ms. Gage-Cohen neither responded to the letter nor produced any of the requested information or records. She did return Ms. Turner's documents at some point after the Commission's investigation and apparently left Maryland for Tennessee, where she was ultimately served with the charges in this case.
MLRPC 1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." A lawyer who takes "no action whatsoever" in representing a client violates this rule. Attorney Grievance Comm'n v. Shakir, 427 Md. 197, 205, 46 A.3d 1162 (2012); see also De La Paz, 418 Md. at 554.
MLRPC 1.4 states, in pertinent part, that "[a] lawyer shall ... keep the client reasonably informed about the status of the matter; [and] promptly comply with reasonable requests for information..." As in the instant case, conduct that violates the diligence and Page 6 promptness standard of MLRPC 1.3 often also violates the communication standard of MLRPC 1.4. See Attorney Grievance Comm'n v. Pinno, 437 Md. 70, 80, 85 A.3d 159 (2014); Attorney Grievance Comm'n v. Kremer, 432 Md. 325, 336, 68 A.3d 862 (2013).
MLRPC 1.5(a) states, in pertinent part, that "[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." When an attorney charges a fee but does no work, the fee is per se unreasonable. Attorney Grievance Comm'n v. McLaughlin, 372 Md. 467, 502, 813 A.2d 1145 (2002); Attorney Grievance Comm'n v. Chapman, 430 Md. 238, 275, 60 A.3d 25, 48 (2013); Attorney Grievance Comm'n v. Stinson, 428 Md. 147, 184, 50 A.3d 1222 (2012). It is irrelevant that the fee is "initially reasonable" if the attorney fails to perform any of the services for which the attorney was paid. Attorney Grievance Comm'n v. Lawson, 401 Md. 536, 580, 933 A.2d 842 (2007).
MLRPC 1.16(a) provides, with an exception not pertinent here, that "a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: ... (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged." Section (d) of that rule provides that "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense Page 7 that has not been earned or incurred." When an attorney does nothing to advance the client's interest, and then abandons the client without notice and without returning unearned fees, the attorney violates MLRPC 1.16(d). Kremer, 432 Md. at 336; Attorney Grievance Comm'n v. Park, 427 Md. 180, 193, 46 A.3d 1153 (2012); see also Attorney Grievance Comm'n v. Costanzo, 432 Md. 233, 255, 68 A.3d 808 (2013).
MLRPC 8.4(a) states that "[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers' Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another[.]"
Ms. Gage-Cohen accepted $2,500 to represent Ms. Turner in a divorce case, but took absolutely no action to advance Ms. Turner's case. This failure to act amounted to incompetent representation in violation of MLRPC 1.1, was inconsistent with her client's decisions in violation of MLRPC 1.2, and fell well short of the diligence and promptness required by MLRPC 1.3. Ms. Gage-Cohen's communication with Ms. Turner was not just inadequate, it was non-existent. She never contacted Ms. Turner after the initial consultation. Nor did she respond to Ms. Turner's repeated calls and emails requesting information. Her lack of communication violated MLRPC 1.4. Ms. Gage-Cohen's $2,500 fee, for which she evidently performed no work, was unreasonable under MLRPC 1.5. Ms. Gage-Cohen abandoned the representation without notifying Ms. Turner, without allowing her to obtain other counsel in a timely manner, and without refunding any of the unearned fee. Ms. Gage-Cohen only returned Ms. Turner's documents at some point shortly before Bar Counsel Page 8 filed charges against her. She thus failed to terminate the representation in the manner required under MLRPC 1.16. Because Ms. Gage-Cohen violated numerous provisions of the MLRPC, she also violated Rule 8.4(a).
(a) A lawyer shall hold property of clients ... that is in
a
lawyer's possession in connection with a representation separate from
the lawyer's own property. Funds shall be kept in a separate account
maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and
records shall be created and maintained in accordance with the Rules in
that Chapter.... Complete records of the account funds and of other
property shall be kept by the lawyer and shall be preserved for a
period of at least five years after the date the record was created. ... (c) Unless the client gives informed consent, confirmed in
writing, to a different arrangement, a lawyer shall deposit legal fees
and expenses that have been paid in advance into a client trust account
and may withdraw those funds for the lawyer's own benefit only as fees
are earned or expenses incurred. [A]ll funds, including cash, received and accepted by an
attorney
or law firm in this State from a client or third person to be delivered
in whole or in part to a client or third person, unless received as
payment of fees owed the attorney by the client or in reimbursement for
expenses properly advanced on behalf of the client, shall be deposited
in an attorney trust account in an approved financial institution. MLRPC 8.4(c) states, "It is professional misconduct for a lawyer to:
... (c) [e]ngage in conduct involving dishonesty, fraud, deceit or
misrepresentation[.]" When an attorney misappropriates client funds,
the attorney violates MLRPC 8.4(c). Costanzo, 432
Md. at 256; McCulloch, 404 Md. at 400; see also Attorney
Grievance Comm'n v. Kreamer, 404 Md. 282, 298, 946 A.2d 500
(2008). Maryland Rule 16-609(a) states, "An attorney or law firm may not
borrow
or pledge any funds required by the [Maryland Rules] to be deposited in
an attorney trust account, ... or use any funds for any unauthorized
purpose." BOP § 10-306 states, "A lawyer may not
use trust money for any purpose other than the purpose for which the
trust money is entrusted to Page 10
the lawyer." Because "the statute and the Rule have the same
requirement," a
violation of Rule 16-609 is a violation of BOP § 10-306.
Attorney Grievance
Comm'n v. Goff, 399 Md. 1, 30, 922 A.2d
554
(2007). Failure to deposit unearned fees into an attorney trust account
is a violation of Rule
16-609, and therefore of BOP § 10-306 as well. Costanzo,
432 Md. at 255. Ms. Gage-Cohen did not deposit the payment fees she received from
Ms. Turner into a separate trust account. Nor did she obtain Ms.
Turner's informed, written consent to an alternate arrangement, as
required by
MLRPC 1.15(c). The hearing judge found that Ms. Gage-Cohen did not
maintain
trust account records, and did not maintain a trust account at all in
2012.
This mismanagement of funds violated MLRPC 1.15(a) & (c), and
8.4(c),
Maryland Rules 16-604, 16-606.1, and 16-609, and BOP § 10-306. Page 11 From June
through November 2012, Bar Counsel sent Ms. Gage-Cohen four
letters requesting information about Ms. Turner's complaint and
advising her
of the severity of the matter. When the Commission investigator called
her,
she did not return his calls, and she only spoke with him when he
appeared
at her office unannounced. At that point, Ms. Gage-Cohen acknowledged
receiving Bar Counsel's letters and promised to respond, but she never
made
good on that promise. Accordingly, she violated MLRPC 8.1(b). As Ms. Gage-Cohen accepted payment from Ms. Turner without carrying
out the promised representation, seemingly abandoned the representation
of
Ms. Turner without returning the unearned fee, and failed to respond to
Bar Counsel's requests for information, she violated MLRPC 8.4(d). Attorney
Grievance Comm'n v. Rose, 383 Md. 385,
392, 859 A.2d 659
(2004) Page 12
("failure to promptly and sufficiently respond to Bar Counsel's
requests for
information is conduct prejudicial to the administration of justice"). Sanction
In short, the rule mandates that attorneys "maintain a separate account
to
safeguard funds of clients ... and ... deposit unearned fees into the
client
trust account, unless the client gives informed consent, confirmed in
writing, to a different arrangement." Attorney Grievance Comm'n v.
Tanko, 427 Md. 15, 32,
45 A.3d 281 (2012) (internal citations
omitted).
Maryland Rule 16-604 similarly provides, in part:
Consistent with MLRPC 1.15, this rule requires attorneys to keep all
client
funds in a trust account until earned as fees or otherwise distributed
in
accordance with the representation agreement. Attorney Grievance
Comm'n v.
Van Nelson, 425 Md. 344, 360, 40 A.3d
1039
(2012). Finally, Maryland Rule 16-606.1 sets forth the requirements for
creating and maintaining
attorney trust accounts, including detailed records of every
transaction in each client matter.
This Court has found disbarment appropriate in other cases involving similar "flagrant neglect." See, e.g., Attorney Grievance Comm'n v. Tinsky, 377 Md. 646, 655, 835 A.2d 542 (2003); Shakir, 427 Md. at 208 (attorney disbarred for accepting payment but failing to put money in client trust account or to perform any legal services); Attorney Grievance Comm'n v. Wallace, 368 Md. 277, 293, 793 A.2d 535 (2002) (disbarring attorney who lacked Page 13 diligence and preparation, did not communicate with his clients, charged unreasonable fees, misappropriated funds, lied, and failed to comply with Bar Counsel's requests). Ms. Gage-Cohen's neglect of her client and misappropriation of the client's funds violated MLRPC 1.1, 1.2(a), 1.3, 1.4(a) & (b), 1.5(a), 1.15(a) & (c), 1.16(a) & (d), and 8.4(a), (c) & (d), as well as related rules and statutes. This "egregious behavior is exacerbated by h[er] complete failure to respond to Bar Counsel's investigation, although reminded of h[er] obligation by [the Commission's] investigator, in violation of Rule 8.1(b)." Lara, 418 Md. at 365. Ms. Gage-Cohen has offered no mitigating evidence. Under these circumstances, disbarment is the appropriate sanction.
IT IS SO ORDERED. RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST CHRISTINE BOCO GAGE-COHEN.
- Decided on .