Attorney Grievance Commission v. Christine Boco Gage-Cohen
Misc. Docket AG No. 25, September 2013 Term


Attorney Discipline – Abandonment of Client – Misappropriation of Client Funds –
Failure to Cooperate with Bar Counsel – Disbarment.
Disbarment is the appropriate sanction when an attorney accepts a retainer to perform agreed-
upon legal work, abandons the client without performing the work and without returning the
unearned fee, and fails to cooperate with the resulting disciplinary investigation. 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 and a
misappropriation of client funds, and are prejudicial to the administration of justice. MLRPC
1.1, 1.2(a), 1.3, 1.4, 1.5(a), 1.15(a) & (c), 1.16 (a) & (d), 8.1(b) and 8.4(a), (c), & (d).
Maryland Rules 16-604, 16-606.1, 16-609(a); Maryland Code, Business Occupations and
Professions Article, §10-306.
Circuit Court for Anne Arundel County
Case No. C-13-179338
Argued: September 3, 2014
                                         IN THE COURT OF APPEALS
                                                OF MARYLAND

                                             Misc. Docket AG No. 25

                                              September Term 2013


                                        A TTORNEY G RIEVANCE C OMMISSION
                                                 OF M ARYLAND


                                                       v.

                                          C HRISTINE B OCO G AGE-C OHEN


                                                     Barbera, C.J.
                                                     Harrell
                                                     Battaglia
                                                     Greene
                                                     Adkins
                                                     McDonald
                                                     Watts

                                                            JJ.


                                             Opinion by McDonald, J.


                                             Filed: October 21, 2014
       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.

                                        Background

Procedural Context

       On June 5, 2013, the Attorney Grievance Commission (“Commission”), through Bar

Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against

Christine Boco Gage-Cohen. The Commission charged Ms. Gage-Cohen with violating

MLRPC 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). She was also

charged with violating 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 (“BOP”), §10-306 (misuse of trust money).

        Pursuant to Maryland Rule 16-752(a), this Court designated Judge William C.

Mulford, II, of the Circuit Court for Anne Arundel County, to conduct a hearing and to

provide findings of fact and recommended conclusions of law. After several unsuccessful

attempts to locate Ms. Gage-Cohen, she was personally served in Tennessee on November

19, 2013. She did not respond to the summons and, on December 19, 2013, Bar Counsel

filed a Motion for an Order of Default. The motion was granted on December 27 and entered

on December 30, 2013; a hearing was scheduled for February 11, 2014. Ms. Gage-Cohen

did not move to vacate the order; nor did she attend the hearing.

        The hearing judge issued findings of fact and recommended conclusions of law on

March 4, 2014.     Neither party filed exceptions.   This Court heard oral argument on

September 3, 2014. Ms. Gage-Cohen did not appear.

Facts

        Ms. Gage-Cohen was admitted to the Maryland Bar in 1985. On March 13, 2013,

while this matter was under investigation, she was suspended for failing to pay the Client

Protection Fund assessment. See Maryland Rule 16-811.6(d).

        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



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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.



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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.

                                        Discussion

       The hearing judge found that Ms. Gage-Cohen committed all of the charged

violations. We review the hearing judge’s conclusions of law without special deference.

Maryland Rule 16-759(b)(1).

Abandonment of the Client

       MLRPC 1.1 states that “[a] lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation



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reasonably necessary for the representation.” In other words, a knowledgeable and skillful

attorney may nevertheless provide incompetent representation if the lawyer is not thorough

or is unprepared. Attorney Grievance Comm’n v. Brady, 422 Md. 441, 457, 30 A.3d 902

(2011); Attorney Grievance Comm’n v. McCulloch, 404 Md. 388, 397-98, 946 A.2d 1009

(2008); Attorney Grievance Comm’n v. Guida, 391 Md. 33, 54, 891 A.2d 1085 (2006). A

lawyer’s failure to prepare a case after accepting a fee violates MLRPC 1.1. Attorney

Grievance Comm’n v. De La Paz, 418 Md. 534, 553-54, 16 A.3d 181 (2011).

       MLRPC 1.2(a) states, in relevant part, that “a lawyer shall abide by a client’s

decisions concerning the objectives of the representation and, when appropriate, shall consult

with the client as to the means by which they are to be pursued.” We have held that “[w]hen

a lawyer fails to take any steps towards the client’s objective, the lawyer necessarily fails to

abide by the client’s decision concerning that objective.” Attorney Grievance Comm’n v.

Garrett, 427 Md. 209, 223, 46 A.3d 1169 (2012).

       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



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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



                                               6
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



                                               7
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).

Misappropriation of Client Funds

              MLRPC 1.15(a) and (c) state, in relevant part,

                      (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.

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).




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                 Maryland Rule 16-604 similarly provides, in part:

                 [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.

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.

       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



                                                  9
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.

Failure to Cooperate with Bar Counsel

       MLRPC 8.1(b) states, in pertinent part, that a lawyer “in connection with a

disciplinary matter, shall not: … (b) knowingly fail to respond to a lawful demand for

information from an admissions or disciplinary authority....” This Court has repeatedly held

that this rule requires an attorney to timely answer requests from the Commission regarding

a complaint in a potential disciplinary matter. Attorney Grievance Comm’n v. Gray, 436 Md.

513, 521, 83 A.3d 786 (2014); see also Attorney Grievance Comm’n v. O’Leary, 433 Md.

2, 39, 69 A.3d 1121 (2013).




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       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).

Conduct Prejudicial to the Administration of Justice

       Under MLRPC 8.4(d), “It is professional misconduct for a lawyer to: ... (d) engage

in conduct that is prejudicial to the administration of justice[.]” A violation of that provision

includes “conduct which erodes public confidence in the legal profession.” Van Nelson, 425

Md. at 362 (quoting Attorney Grievance Comm’n v. Carithers, 421 Md. 28, 56, 25 A.3d 181

(2011)). In Van Nelson, this Court held that charging an unreasonable fee, refusing to return

unearned fees, and failing to respond to Bar Counsel violated MLRPC 8.4(d). Id. at 362-63;

cf. Attorney Grievance Comm’n v. Gallagher, 371 Md. 673, 713, 810 A.2d 996 (2002)

(misappropriating funds violates MLRPC 8.4(d)).

       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




                                               11
A.2d 659 (2004) (“failure to promptly and sufficiently respond to Bar Counsel’s requests for

information is conduct prejudicial to the administration of justice”).

                                          Sanction

       The Commission recommends that we disbar Ms. Gage-Cohen. It notes that we have

disbarred attorneys “[i]n cases involving flagrant neglect of client affairs, including failure

to communicate with clients or respond to inquiries from Bar Counsel.” Attorney Grievance

Comm’n v. Lara, 418 Md. 355, 365, 14 A.3d 650 (2011). In Lara, the attorney accepted fees

from two clients for bankruptcy cases, but deposited the funds into a personal account and

performed no work on either case. Id. at 360-61. The attorney abandoned his law office and

ceased all communications with his clients. Id. He also ignored Bar Counsel’s investigation

until an investigator arrived at his home unannounced. Id. at 361. Although promising to

do so, the attorney never responded to Bar Counsel’s letters or refunded his clients’ fees. Id.

This Court held that his conduct violated MLRPC 1.3, 1.4(a) & (b), 1.15(a), (c) & (d),

1.16(d), 8.1(b), and 8.4(a) & (d), “warrant[ing] the gravest sanction, disbarment, for the

protection of the public.” Id. at 365, 367.

       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



                                              12
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.




                                            I T IS SO O RDERED. R ESPONDENT S HALL P AY
                                            ALL C OSTS AS T AXED BY THE CLERK OF THIS
                                            C OURT, P URSUANT TO M ARYLAND R ULE
                                            16-761, FOR WHICH S UM J UDGMENT IS E NTERED
                                            IN F AVOR OF THE A TTORNEY G RIEVANCE
                                            C OMMISSION A GAINST C HRISTINE B OCO
                                            G AGE-C OHEN.




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