Attorney Grievance Comm'n of Md. v. Cocco
| Decision Date | 23 February 2015 |
| Docket Number | Misc. Docket AG No. 1, Sept. Term, 2014. |
| Citation | 109 A.3d 1176,442 Md. 1 |
| Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Darlene M. COCCO. |
| Court | Court of Special Appeals of Maryland |
Lydia E. Lawless, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.
No argument on behalf of Respondent.
Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.
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 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.
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 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) (). 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.”
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:
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:
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).”
“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).
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 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) (). 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...
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