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
4
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
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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
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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).
8
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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