Attorney Grievance Commission v. Cocco

Attorney Grievance Commission of Maryland v. Darlene M. Cocco, Miscellaneous Docket
AG No. 1, September Term, 2014.

ATTORNEY DISCIPLINE — SANCTIONS — DISBARMENT: Respondent, Darlene
M. Cocco, violated the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)
while representing Robin L. Jones. Cocco knowingly issued and served an invalid
subpoena, misrepresented to third parties to an unfiled lawsuit that they were required to
comply with the invalid subpoena, threatened the third parties with personal suit if they
failed to comply, and refused to respond to Bar Counsel during the course of its
investigation. Such conduct violated MLRPC 3.4(c); 4.1(a)(1); 4.4(a); 8.1(b); and 8.4(a),
(c), and (d). Taken together, Cocco’s violations warrant disbarment.
Circuit Court for Calvert County
Case No.: 04-C-14-383
Argued: January 13, 2015
IN THE COURT OF APPEALS

OF MARYLAND

Misc. Docket AG No. 1

September Term, 2014

ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND

v.

DARLENE M. COCCO

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

JJ.

Opinion by Adkins, J.

Filed: February 23, 2015
 Petitioner, Attorney Grievance Commission of Maryland (“AGC”), acting through

Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Respondent,

Darlene M. Cocco.1 Bar Counsel charged that Cocco, in connection with her representation

of Robin L. Jones, engaged in professional misconduct by issuing an invalid subpoena and

threatening third parties with suit if they did not comply. Bar Counsel alleged that in the

course of her representation of Jones, Respondent violated a number of Maryland Lawyers’

Rules of Professional Conduct (“MLRPC”).2

As permitted by Maryland Rule 16-752(a), we referred the Petition to the Honorable

Mark S. Chandlee of the Circuit Court for Calvert County to conduct an evidentiary hearing

and make findings of fact and conclusions of law. After Cocco failed to file an answer,

Bar Counsel filed a Motion for Order of Default on June 26, 2014. Approximately two

weeks after the court granted the Motion, Cocco filed a Motion to Vacate Order of Default

and Motion to Dismiss and Request for Punitive Damages Against Plaintiff and Attorney

for Plaintiff Lydia Lawless (“Motion to Vacate”).3 Cocco neither filed an answer to the

1
The complaint of Christopher R. Dunn, an attorney for Wal-Mart Stores, Inc.,
triggered the AGC’s investigation of Cocco.
2
Bar Counsel charged that Respondent violated the following MLRPC: (1) Rule 1.1
(Competence); (2) Rule 3.4 (Fairness to Opposing Party and Counsel); (3) Rule 4.1
(Truthfulness in Statements to Others); (4) Rule 4.4 (Respect for Rights of Third Persons);
(5) Rule 8.1 (Bar Admission and Disciplinary Matters); and (6) Rule 8.4 (Misconduct).
3
In her Motion to Vacate, Cocco alluded to an ongoing medical condition with
which she was afflicted, stating that she had not practiced “in years” and that it was her
intention “to contact the bar to request that [her] status be officially changed to inactive
status.” Although Bar Counsel prepared and sent a Joint Petition for Inactive Status to
Cocco on July 2, 2014 and wrote again on July 16, 2014 to inquire about Cocco’s desire to
dispose of the matter in this way, Cocco did not respond. When contacted by an
Petition nor responded to Bar Counsel’s requests for admissions. She did not attend the

hearing conducted on August 8, 2014 by Judge Chandlee. At the hearing, Bar Counsel

filed a motion pursuant to Maryland Rules 16-756 and 2-424(b) to have the requests for

admissions deemed admitted, which the Circuit Court granted. After the hearing, the court

denied Cocco’s Motion to Vacate and issued the findings of fact and proposed conclusions

of law set forth below.

THE HEARING JUDGE’S FINDINGS OF FACT

Cocco was admitted to practice law in Maryland on June 15, 2004. Robin L. Jones

retained Cocco to pursue claims against a Walmart located in California, Maryland,

sometime after sustaining injuries in an accident at the store on May 4, 2009. Although

she and Jones agreed to file suit in St. Mary’s County, Cocco never filed a lawsuit on behalf

of Jones in any court.

In July 2009, Cocco attempted to obtain a copy of surveillance video of the May 4

incident from Walmart employees, but was informed that a subpoena was required.

Approximately two months later, in September 2009, Cocco returned to the store and

“demanded that the Wal-Mart employees immediately provide her with a copy of the

surveillance videotape[, threatening] that, if the Wal-Mart employees did not comply with

her demand to produce a copy of the surveillance videotape, a lawsuit would be filed.” At

this time, Cocco presented to the employees a knowingly invalid subpoena from the Circuit

Court for St. Mary’s County. Although the subpoena was signed by the clerk and bore the

investigator with the AGC in an effort to execute the Joint Petition, Cocco requested that
the AGC not contact her again.
2
seal of the court, Judge Chandlee found the subpoena to be invalid because “no lawsuit had

been filed, it was not addressed to any individual and it requested immediate production of

evidence.” See Md. Rule 2-510(c) (“Every subpoena shall contain: (1) the caption of the

action, [and] (2) the name and address of the person to whom it is directed[.]”). When the

employees questioned the subpoena’s validity, Cocco threatened to sue them personally if

they did not comply immediately. As a result of these threats and the subpoena, the

employees gave the video to Cocco. Cocco’s representation of Jones was later terminated

by the client before suit was filed.

Bar Counsel began its investigation in response to a complaint filed by Christopher

R. Dunn, an attorney for Walmart. Cocco responded to Bar Counsel’s initial inquiry,

arguing both that the complaint should be dismissed due to the statute of limitations or

estoppel and that the subpoena was used to obtain pre-trial evidence to which Jones was

entitled. Bar Counsel replied to Cocco, indicating that she had failed to respond to Dunn’s

core allegation: that she had presented a knowingly invalid subpoena and threatened the

store’s employees with suit if they did not immediately comply with her demands for the

surveillance video. Cocco again responded, writing: “Give[n] that the alleged behavior

happened on 9/17/09 it is well past the 3 year Statute of Limitations[;] accordingly I have

nothing else to say on this matter.” Bar Counsel notified Cocco that the complaint had

been docketed, informed her that attorney disciplinary matters are not subject to statutes of

limitations, and requested a response to its most recent letter. Cocco responded that she

“was unable to recall any additional information about the September 17, 2009 incident.”

3
 THE HEARING JUDGE’S CONCLUSIONS OF LAW

Judge Chandlee found, by clear and convincing evidence, that Cocco violated

MLRPC 3.4(c); 4.1(a)(1); 4.4(a); 8.1(a) and (b); and 8.4(a), (c), and (d).

MLRPC 3.4(c) provides that a lawyer shall not “knowingly disobey an obligation

under the rules of a tribunal except for an open refusal based on an assertion that no valid

obligation exists.” The court concluded that Cocco violated Rule 3.4(c) when she

“knowingly issued and served an invalid subpoena in violation of Maryland Rules 2-404,

2-411, and 2-412 and demanded immediate compliance.”

MLRPC 4.1(a)(1) provides that “[i]n the course of representing a client a lawyer

shall not knowingly . . . make a false statement of material fact or law to a third person.”

The court concluded that Cocco violated Rule 4.1(a)(1) when she “misrepresented to Wal-

Mart employees that they were required to comply with the invalid subpoena.”

MLRPC 4.4(a) provides that “[i]n representing a client, a lawyer shall not use means

that have no substantial purpose other than to embarrass, delay, or burden a third person,

or use methods of obtaining evidence that the lawyer knows violate the legal rights of such

a person.” The court concluded that Cocco violated Rule 4.4(a) when she presented the

invalid subpoena and misrepresented to the employees that they were obligated to comply.

MLRPC 8.1 provides:

An applicant for admission or reinstatement to the bar, or a
lawyer in connection with a bar admission application or in
connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a
misapprehension known by the person to have arisen in the

4
 matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority[.]

The court concluded that Cocco violated Rule 8.1(a) when she “misrepresented to Bar

Counsel that the subpoena was a valid means of obtaining pretrial discovery” and 8.1(b)

when she “failed and refused to respond to Bar Counsel’s requests for information

regarding the issuance of the subpoena and the communications between [Cocco] and Wal-

Mart employees.”

MLRPC 8.4 provides in part:

It 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;

***

(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration
of justice[.]

The court concluded that Cocco’s violation of several MLRPC provisions constituted a

violation of Rule 8.4(a). It also found a violation of Rule 8.4(c) from Cocco’s presentation

of the invalid subpoena and misrepresentation to the employees that they were obligated to

comply. In explaining that Cocco also violated Rule 8.4(d), the court summarized:

“[Cocco’s] conduct, taken as a whole including issuing and serving an invalid subpoena,

threatening Wal-Mart employees, . . . and refusing to respond to Bar Counsel’s requests

for information, brings the profession into disrepute and violat[es] Rule 8.4(d).”

5
 DISCUSSION

Standard Of Review

“In attorney discipline proceedings, this Court has original and complete jurisdiction

and conducts an independent review of the record.” Att’y Grievance Comm’n v. Bleecker,

414 Md. 147, 167, 994 A.2d 928, 940 (2010) (citations omitted). “We accept a hearing

judge’s findings of fact unless we determine that they are clearly erroneous.” Att’y

Grievance Comm’n v. Guida, 391 Md. 33, 50, 891 A.2d 1085, 1095 (2006).

Pursuant to Maryland Rule 16-759(b)(1), we review the hearing judge’s proposed

conclusions of law without deference. Thus, “the ultimate determination . . . as to an

attorney’s alleged misconduct is reserved for this Court.” Att’y Grievance Comm’n v.

Garfield, 369 Md. 85, 97, 797 A.2d 757, 764 (2002) (alteration in original) (citations

omitted). “In that regard, we examine the record to ascertain whether there was sufficient

evidence to support the hearing judge’s legal conclusions, by a clear and convincing

standard of proof.” Att’y Grievance Comm’n v. Tanko, 427 Md. 15, 27–28, 45 A.3d 281,

288 (2012) (citation and internal quotation marks omitted).

No Exceptions—Respondent’s Admissions

Neither Cocco nor Bar Counsel notes any exceptions to the hearing judge’s findings

of fact or conclusions of law.4 And, because Cocco filed no response to Bar Counsel’s

4
Although she filed no exceptions, Cocco did send a letter to the Court in October
2014, stating that she was “undergoing medical treatment for medical malpractice [that]
left [her] with neurological issues.” Cocco accused the AGC of harassing her while she
underwent medical treatment and contended that the confluence of her medical condition,
that she has not practiced law in over two years, and that she had not renewed her license
in the previous year should “make this matter moot until and if [she becomes] able to
6
requests for admissions, they are deemed admitted. Md. Rule 2-424(b); see Att’y

Grievance Comm’n v. De La Paz, 418 Md. 534, 542, 16 A.3d 181, 186 (2011) (“[Attorney]

failed to file an answer to Bar Counsel’s Petitions or respond to its Requests for Admissions

of Facts and Genuineness of Documents; thus, the factual averments in those Petitions were

deemed admitted.”). When an attorney has failed to respond to Bar Counsel’s requests for

admissions and attempted to challenge a Rule 2-424(b) admission for the first time before

this Court, we have denied the request. We have opined that an attorney “cannot challenge

the sufficiency of the evidence supporting the findings of fact by advocating for the

consideration of evidence that is contradictory to her admissions or not in the record.” Att’y

Grievance Comm’n v. O’Leary, 433 Md. 2, 31, 69 A.3d 1121, 1138 (2013); see Murnan v.

Hock, 274 Md. 528, 534, 335 A.2d 104, 108 (1975) (referring to unanswered requests

deemed admitted as “conclusively binding”). Thus, we do not disturb the factual findings

deemed admitted.

As to any findings not deemed admitted due to Cocco’s failure to respond to the

request for admissions, both parties were permitted to file “(1) exceptions to the findings

and conclusions of the hearing judge and (2) recommendations concerning the appropriate

disposition[.]” Md. Rule 16-758(b). Cocco filed no exceptions. Thus, we shall accept the

hearing judge’s “findings of fact as established for the purpose of determining appropriate

sanctions.” Md. Rule 16-759(b)(2)(A).

practice.” In her Motion to Dismiss, filed after the Court held oral argument, Cocco raised
many of the same unavailing arguments. Neither of these filings covered the allegations
addressed in the hearing judge’s Findings of Fact and Conclusions of Law. Thus, we will
deny her Motion to Dismiss.
7
 CONCLUSIONS OF LAW

We also agree with the hearing judge’s conclusions that Cocco violated MLRPC

3.4(c); 4.1(a)(1); 4.4(a); 8.1(b); and 8.4(a), (c), and (d). In knowingly presenting an invalid

subpoena in contravention of Maryland Rule 2-510,5 Cocco violated MLRPC 3.4(c). See

Att’y Grievance Comm’n v. Mixter, ___ Md. ___ (2015), slip op. at 104–05 (No. 7,

September Term, 2013) (filed Feb. 2, 2015) (concluding attorney had violated MLRPC

3.4(c) when he disobeyed obligations under Maryland Rule 2-413(a)(2)). This

misrepresentation was also a clear violation of MLRPC 4.1(a)(1) and 8.4(c). See id. at 108,

111–13 (concluding attorney had violated MLRPC 4.1(a)(1) and 8.4(c) when

misrepresenting the enforceability of subpoenas to third parties). In presenting the invalid

subpoena, Cocco threatened Walmart employees with personal suit, a clear violation of

MLRPC 4.4(a). See id. at 109–11.

During the course of Bar Counsel’s investigation, Cocco failed repeatedly to

respond to the allegations that she had threatened third parties with an invalid subpoena.

This was a violation of MLRPC 8.1(b). See Att’y Grievance Comm’n v. Weiers, 440 Md.

292, 306–09, 102 A.3d 332, 341–42 (2014) (concluding attorney had violated MLRPC

8.1(b) when although he had responded to the AGC, he “fail[ed] to cooperate readily and

5
Maryland Rule 2-510 prescribes the proper use, issuance, form, and service of
subpoenas. As discussed supra, the subpoena with which Cocco threatened the Walmart
employees was invalid because no lawsuit had been filed and it was not directed to any
particular person. See infra for further discussion of Rule 2-510.

8
fully with Bar Counsel”).6 We also agree with the hearing judge’s conclusion that, overall,

Cocco’s conduct was “prejudicial to the administration of justice” and, consequently, an

8.4(d) violation. See Mixter, slip op. at 113–15 (discussing MLRPC 8.4(d) and concluding

that attorney had violated the Rule). Taken together, these violations also constitute a

violation of MLRPC 8.4(a). Att’y Grievance Comm’n v. Van Nelson, 425 Md. 344, 363,

40 A.3d 1039, 1050 (2012) (“Rule 8.4(a) is violated when other Rules of Professional

Conduct are breached.”).

Sanction

Bar Counsel recommends that Cocco be disbarred or, alternatively, placed on

inactive status. In its Recommendation for Sanction, Bar Counsel highlights Cocco’s use

of an invalid subpoena and her threats of suit to the Walmart employees if they did not

comply. Bar Counsel also draws the Court’s attention to Cocco’s prior unrelated reprimand

from the AGC in November 2010. This reprimand arose from a violation of MLRPC 8.4(d)

for presenting “inappropriately provocative and inaccurate accusations of misconduct by

an opposing counsel and [not following] appropriate procedures in pursuing her client’s

interests.”

As we recently discussed:

In selecting a sanction, we are cognizant of the principle that
attorney discipline proceedings are not instituted to punish an
offending lawyer, but rather to protect the public and the

6
Without deciding whether Respondent’s statement to Bar Counsel that the
subpoena was a valid means of obtaining pretrial discovery qualifies as a false statement
of material fact or mere advocacy—and, thus, whether this statement constitutes a violation
of MLRPC 8.1(a)—we conclude that the issue is not dispositive for our ultimate decision,
as will be apparent, infra.
9
 public’s confidence in the legal profession. Imposition of a
sanction protects the public in two ways: through deterrence of
the type of conduct which will not be tolerated, and by
removing those unfit to continue in the practice of law from the
rolls of those authorized to practice in this State. Our selection
of an appropriate sanction is guided by the nature and gravity
of the violation, the intent with which the violation was
committed, and the particular circumstances surrounding each
case . . . .

Att’y Grievance Comm’n v. Park, 427 Md. 180, 195, 46 A.3d 1153, 1161 (2012) (internal

citations and quotation marks omitted).

When determining the appropriate sanction, we must also consider any mitigating

factors. Att’y Grievance Comm’n v. Roberts, 394 Md. 137, 165, 904 A.2d 557, 574 (2006)

(“The appropriate sanction depends on the facts and circumstances of each case, including

any mitigating factors.” (citation omitted)). Here, the hearing judge found no mitigating

factors, and there is no reason to upset that finding. See Att’y Grievance Comm’n v. West,

378 Md. 395, 411, 836 A.2d 588, 597 (2003) (“On review, we keep in mind that the

findings of the trial judge are prima facie correct and will not be disturbed unless clearly

erroneous.” (citation omitted)).

Cocco committed an egregious misrepresentation when she used an invalid

subpoena to threaten individual third parties into complying with her demand for

information. “A lawyer, as a member of the legal profession, is a representative of clients,

an officer of the legal system and a public citizen having special responsibility for the

quality of justice.” Md. Rule 16-812, Preamble: A Lawyer’s Responsibilities (emphasis

added). Despite a client’s expectation that an attorney be a zealous advocate, “[a] lawyer

should use the law’s procedures only for legitimate purposes and not to harass or intimidate

10
others.” Id. In knowingly presenting an invalid subpoena to Walmart employees and

threatening them with personal liability for failure to comply, Cocco failed to meet the high

bar of ethical behavior set for an attorney. See Att’y Grievance Comm’n v. Childress, 360

Md. 373, 381, 758 A.2d 117, 121 (2000) (“[A] lawyer, upon admission to the Bar, accepts

and agrees to be held to a higher standard of rules of conduct that are significantly more

stringent than the requirements of law held to society at large . . . .”). Cocco’s

misrepresentation, threats, and intimidation depart from this model of conduct and were a

grave transgression and an abuse of her role as an officer of the legal system.

So, too, was Cocco’s conduct harmful to the public perception of lawyers in general.

By her actions, Cocco posed a risk to the public perception of the integrity of attorneys in

general, and specifically of those serving a subpoena. Such misconduct is particularly

significant because lawyers, unlike other persons, may obtain signed blank subpoenas to

be completed as they see fit prior to service. See Md. Rule 2-510(b).7

An intentional misrepresentation—particularly one of this magnitude and with the

broader implications discussed supra—ordinarily will warrant disbarment:

Unlike matters related to competency, diligence and the like,
intentional dishonest conduct is closely entwined with the most
important matters of basic character to such a degree as to

7
Maryland Rule 2-510(b) provides:
On the request of a person entitled to the issuance of a
subpoena, the clerk shall issue a completed subpoena, or
provide a blank form of subpoena which shall be filled in and
returned to the clerk to be signed and sealed before service. On
the request of an attorney or other officer of the court entitled
to the issuance of a subpoena, the clerk shall issue a subpoena
signed and sealed but otherwise in blank, which shall be filled
in before service.
11
 make intentional dishonest conduct by a lawyer almost beyond
excuse. Honesty and dishonesty are, or are not, present in an
attorney’s character. Disbarment ordinarily should be the
sanction for intentional dishonest conduct.

Att’y Grievance Comm’n v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488 (2001)

(emphasis added).

Here, Cocco committed a misrepresentation in the name of the court in an attempt

to threaten and bully third parties who were unaware of the fallacious nature of the

subpoena. In so doing, she seriously abused her trusted position as an officer of the court.

Absent any mitigating factors, and with due consideration paid to the potential harm visited

upon the public perception of lawyers in general, Cocco’s transgressions warrant the

strictest sanction. Time and again, we have reached the conclusion that disbarment is the

appropriate sanction for intentional misrepresentations, particularly when they cast

disrepute upon the public perception of lawyers. See Att’y Grievance Comm’n v.

Goodman, 381 Md. 480, 499, 850 A.2d 1157, 1168 (2004) (disbarring an attorney for

intentional misrepresentation after reasoning that “[o]nly in the case of compelling

extenuating circumstances will we even consider imposing less than the most severe

sanction of disbarment in cases involving dishonesty and fraudulent conduct” (citation and

internal quotation marks omitted)); Att’y Grievance Comm’n v. Pennington, 387 Md. 565,

596, 876 A.2d 642, 660 (2005) (disbarring attorney for, among other misrepresentations,

“falsifying a supposed settlement of . . . claims with [an] insurer[ and] intentionally

misrepresenting matters in negotiations with third-party health care providers”).

Accordingly, we conclude that disbarment is the appropriate sanction.

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 IT IS SO ORDERED; RESPONDENT
SHALL PAY ALL COSTS AS TAXED
BY THE CLERK OF THIS COURT,
INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO
MARYLAND RULE 16-761.
JUDGMENT IS ENTERED IN
FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION
AGAINST DARLENE M. COCCO IN
THE SUM OF THESE COSTS.

13