This Court finds that the facts elicited during the trial of this matter establish by clear and convincing evidence a violation of Rules 1.7; 1.8; 1.16(a); 4.2; 8.1 (a) and (b); 8.4(a), (c) and (d) (misconduct). 8.4 (a) through (d) as stated above.
"This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland." Attorney Grievance v. Chapman, 430 Md. 238, 273, 60 A.3d 25, 46 (2013), quoting Attorney Grievance v. Seltzer, 424 Md. 94, 112, 34 A.3d 498, 509 (2011). "We accept the hearing judge's findings of fact as prima facie correct unless shown to be clearly erroneous." Attorney Grievance v. Rand, 429 Md. 674, 712, 57 A.3d 976, 998 (2012), quoting Attorney Grievance v. Stern, 419 Md. 525, 556, 19 A.3d 904, 925 (2011). We conduct an independent, de novo review of the hearing judge's conclusions of law, pursuant to Rule 16-759(b)(1).
Bar Counsel has filed no substantive exceptions to Judge Bailey's Findings of Fact and Conclusions of Law. O'Leary did file exceptions, in which she challenges the discovery sanctions imposed by Judge Bailey against her, several findings of fact, including the determination that she did not prove mitigation, and all of the conclusions of law.
O'Leary challenges the sanctions imposed by Judge Bailey for O'Leary's failure to respond to discovery requests and to appear at her deposition. She argues that given "the significance of the matter, namely [her] ability to practice law, " O'Leary should have been permitted to fully participate in the evidentiary hearing, by introducing her own evidence and calling her own witnesses. O'Leary did, however, cross-examine every witness, testify as to mitigation and call Mr. Cosgrove as a witness in mitigation.
We recognize that the hearing judge "is entrusted with the role of administering the discovery rules and, as such, is vested with broad discretion in imposing sanctions when a party fails to comply with the rules." Attorney Grievance v. Kreamer, 404 Md. 282, 342, 946 A.2d 500, 535 (2008). Utilizing this standard, we have chosen not to disturb sanctions for the failure to respond to discovery requests. In Attorney Grievance v. James, 385 Md. 637, 870 A.2d 229 (2005), an attorney filed late, unresponsive answers to Bar Counsel's interrogatories, request for admissions of facts and genuineness of documents, and request for production of documents. After Bar Counsel filed a motion for sanctions, which was granted by the Circuit Court Judge, the sanctions "foreclosed the Respondent from putting on any evidence that was requested in the Petitioner's Interrogatories and Requests for Production of Documents, " and, "[a]s a result, Petitioner's Requests for Admission of Facts and Genuineness of Documents were admitted." 385 Md. at 647, 870 A.2d at 235. We approved the sanctions as "proportionate to the discovery abuse." Id. at 661, 870 A.2d at 243.
In another case involving sanctions, albeit not in the attorney grievance area, Rodriguez v. Clarke, 400 Md. 39, 926 A.2d 736 (2007), the plaintiffs failed to make available for deposition their expert witnesses, who were necessary to prove a prima facie case and we approved of the imposition of a sanction based upon the "continuous failure to cooperate with [the defendants'] repeated requests for dates of depositions of their experts, especially out-of-state witnesses." Id. at 68, 926 A.2d at 753. The Circuit Court granted the defendants' motion to preclude the plaintiffs from presenting expert testimony at trial and, thereafter, the defendant's motion for summary judgment, and we affirmed, concluding that the sanctions were warranted based upon the plaintiffs' failure to comply with discovery, which "evidenced a complete lack of good faith in providing access to the discoverable information." Id.
O'Leary repeatedly failed to respond to Bar Counsel's discovery requests, initially by not answering the interrogatories, request for production of documents, and request for admissions of fact and genuineness of documents. After an order of default was entered against her, O'Leary filed a motion to vacate the order of default, claiming that she was not aware of the discovery deadlines and that she needed time to prepare her defense and collect documents. When the default order was vacated and the evidentiary hearing was rescheduled, O'Leary never responded to Bar Counsel's requests for documents, admissions of facts and genuineness of documents, and she failed to appear for her deposition. The sanctions imposed by Judge Bailey were certainly proportionate to O'Leary's failures to respond to discovery.
O'Leary now seeks to do that from which she has been prohibited by sanctions. Before us, she contends that she has evidence that is contradictory to her admissions or not in the record, which show that several of Judge Bailey's findings of fact are clearly erroneous. O'Leary, however, cannot avoid the sanctions imposed by the hearing judge by trying to do an "end run." In Attorney Grievance v. Powell, 369 Md. 462, 800 A.2d 782 (2002), an attorney failed to respond to Bar Counsel's interrogatories, requests for admissions of fact and genuineness of documents, and request for production of documents. After Bar Counsel moved for sanctions, the circuit court judge entered an order directing that the
Request for Admission of Facts and Genuineness of Documents be admitted, that the responsive pleading filed by Respondent be stricken, that Respondent be prohibited from introducing at trial any evidence to oppose the claims of [Bar Counsel] as set forth in the Petition for Disciplinary Action, and that judgment by default be entered against the Respondent and in favor of [Bar Counsel] finding that the Rules of Professional Conduct have been violated as alleged in the Petition for Disciplinary Action.
369 Md. at 466, 800 A.2d at 784. We concluded that the failure to file timely responses to the discovery requests, in order to "stonewall Bar Counsel's efforts to gain discovery, " meant that we "consider this case on the present state of the record and the findings of fact and conclusions of law of the hearing judge . . . ." Id. at 473-74, 800 A.2d at 789.
Similarly, Attorney Grievance v. McLaughlin, 372 Md. 467, 813 A.2d 1145 (2002) involved an attorney who failed to respond to Bar Counsel's request for admissions of fact. After Bar Counsel asked for sanctions, the hearing judge ordered that the admissions of fact be deemed admitted, upon which he relied in rendering his Findings of Fact. Before us, the attorney sought a new evidentiary hearing to contradict the hearing judge's findings, specifically that the attorney had charged significant fees for work he had not done. We denied the attorney's request, concluding that the attorney had "exhausted his entitlement to further judicial proceedings." Id. at 494, 813 A.2d at 1161. The sanctions imposed were not an abuse of Judge Bailey's discretion, so before us, O'Leary 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.
The sanctions did not prevent O'Leary from testifying as to mitigation and, thus, we may consider her exception to Judge Bailey's finding that she failed to prove, by a preponderance of the evidence, any mitigation. With respect to mitigating factors, we consider:
Absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.
Attorney Grievance v. Brown, 426 Md. 298, 326, 44 A.3d 344, 361 (2012). O'Leary contends that she suffered from insomnia, migraines and a miscarriage during the course of her representation of Mr. Cosgrove, without establishing any nexus to her misconduct. She also asserts that Judge Bailey should have considered her current decline in health, financial situation due to unemployment, anxiety problems and inability to secure independent counsel for the evidentiary hearing in September of 2012, as mitigation. While an illness or a traumatic event may serve as a mitigating factor in determining sanctions, they may do so only when there is some nexus to the misconduct. Attorney Grievance v. Zimmerman, 428 Md. 119, 146 n.13, 50 A.3d 1205, 1221 n.13 (2012), citing Attorney Grievance v. West, 378 Md. 395, 418, 836 A.2d 588, 601 (2003) and Attorney Grievance Commission v. Breschi, 340 Md. 590, 605, 667 A.2d 659, 666-67 (1995); see also Attorney Grievance v. Vanderlinde, 364 Md. 376, 414, 773 A.2d 463, 484-85 (2001).
O'Leary also excepts to the fact that Judge Bailey did not find that there was an absence of "testimony that Mr. Cosgrove, the actual client, was in anyway [sic] harmed." O'Leary obviously misconstrues her burden with respect to mitigation, in this regard. It was her burden to prove mitigation, rather than rely on a presumption that the absence of evidence should be construed in her favor. We overrule the exception.
"As to the conclusions of law of a judge, to whom we have assigned hearing duties in an attorney grievance case, our consideration is essentially de novo, even where default orders and judgments have been entered at the hearing level." Attorney Grievance v. Harrington, 367 Md. 36, 49, 785 A.2d 1260, 1267-68 (2001).
O'Leary excepts to the conclusion that she violated Rule 1.7(a)(2), which provides:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
* * * (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Judge Bailey determined that O'Leary knew she had a conflict of interest in violation of Rule 1.7(a), because her intimate relationship with her client, Mr. Cosgrove, provided her with a personal interest in Cosgrove v. Cosgrove that materially limited her representation. Judge Bailey also determined that O'Leary "may reasonably have been called as a witness on a variety of contested matters including child support, visitation and custody of the Cosgroves' minor children."
In her exception, O'Leary does not dispute that she had a personal interest and familiarity with the Cosgrove matter. Rather, she asserts, without citation to any authority, that a conflict of interest under Rule 1.7(a)(2) cannot arise unless litigation ensues and the attorney, having a personal interest in the matter, is called also as a witness. Bar Counsel disagrees.
A lawyer's intimate relationship with a client may constitute a violation of Rule 1.7. In Attorney Grievance v. Culver, 381 Md. 241, 849 A.2d 423 (2004), we considered whether nonconsensual sexual relations with a client, during the course of representation in "this domestic relations case, involving child custody, alimony, distribution of marital property, and divorce grounds, " id. at 266 n.11, 849 A.2d at 438 n.11, constituted a personal conflict of interest under Rule 1.7(b), which provided:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1)the lawyer reasonably believes the representation will not be adversely affected; and
(2)the client consents after consultation.
Culver was an attorney who engaged in sexual conduct with his client, while representing her in a divorce and child custody dispute. He acknowledged that the sexual conduct posed a personal conflict of interest but defended that his sexual relations were consensual, and therefore the client acceded to his continued legal representation after their sexual relationship began.
We rejected Culver's argument regarding consent and went further in our discussion of Culver's violation of Rule 1.7(b). We concluded, for purposes of determining a violation of Rule 1.7(b), that consent was not dispositive as to the effect of an intimate relationship between an attorney and client, in the context of a disputed divorce and child custody action. 381 Md. at 266 n.11, 849 A.2d at 438 n.11. We found guidance in the commentary to Rule 1.7, which provided that a sexual relationship with a client is an "impermissible conflict between the interests of the client and those of the attorney" if the sexual relationship poses a material limitation on the representation and the attorney's belief otherwise is unreasonable:
A sexual relationship with a client, whether or not in violation of criminal law, will create an impermissible conflict between the interests of the client and those of the lawyer if (1) the representation of the client would be materially limited by the sexual relationship and (2) it is unreasonable for the lawyer to believe otherwise. Under those circumstances, client consent after consultation is ineffective. See also Rule 8.4.
381 Md. at 269, 849 A.2d at 440. We relied on the fact that intimate relations with a client during the pendency of a divorce action may serve as grounds for adultery, under Section 7-103 of the Family Law Article, Maryland Code (1984, 1999 Repl. Vol., 2003 Supp.),  to enable the spouse to seek an immediate, absolute divorce, id. at 274, 849 A.2d at 443 ("When divorce is in issue, the lawyer who engages in sexual intercourse with the client may be supplying the client's spouse with grounds for an immediate divorce and may interfere with any possibility of a reconciliation."), and may be a factor for consideration in determining child custody. Id. at 274, 849 A.2d at 443 ("whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child's welfare, " quoting Robinson v. Robinson, 328 Md. 507, 516, 615 A.2d 1190, 1194 (1992)). With these considerations, we concluded that "in a domestic relations matter, when the grounds for divorce, child custody, alimony, or the distribution of marital assets are at issue, the attorney knows or should know that a sexual relationship with the client has the potential to jeopardize the client's case. In such circumstances, an attorney who engages in sexual relations with the client violates Rule 1.7(b)." Culver, 381 Md. at 275, 849 A.2d at 443.
Our analysis in Culver regarding whether a conflict of interest, now under Rule 1.7(a)(2),  exists in a divorce matter when the attorney had an intimate relationship with the client was not dependent on whether Culver was called as a witness. We overrule O'Leary's exception. O'Leary's conflict of interest, by engaging in sexual relations with Mr. Cosgrove during the course of his contested divorce action is evident from the record, including Mr. Nowak's testimony that O'Leary "had admitted to the relationship with Mr. Cosgrove, that she had gotten pregnant" and that she "stated that my client [Diana Cosgrove] had killed her unborn child." She violated Rule 1.7(a)(2).
O'Leary's conduct also violated Rule 1.8(i), which provides that "[a] lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client . . . ." Judge Bailey found that O'Leary participated financially in paying the child support obligations of Mr. Cosgrove, while she negotiated the amount of child support that he was to pay Diana Cosgrove. Judge Bailey further found that O'Leary told Ms. Cosgrove that the amount of child support Ms. Cosgrove would be able to receive was related to payment of daycare services, stating to Ms. Cosgrove, while O'Leary was providing care, at times, for the Cosgrove children: "The reason you qualify for child support is the daycare you pay." O'Leary, thus, interjected her personal participation in caring for the children as a factor to advocate for a reduction of Ms. Cosgrove's child support, in which O'Leary had a financial interest.
The prohibition against a lawyer acquiring a proprietary interest in his or her client's action is "designed to avoid giving the lawyer too great an interest in the representation, " Comment 16 to Rule 1.8, because a lawyer's economic interest in the outcome of the client's case can erode the lawyer's independent judgment. See In re Computer Dynamics, Inc. v. Merrill, 252 B.R. 50, 64 (1997) (awarding a sanction, in favor of the debtor, where the creditor's attorney provided a hold harmless guaranty to his client, which constituted a prohibited conflict of interest, as a proprietary, financial interest in the outcome of his client's litigation, as well as "a simple example of why [the attorney] was totally incapable of exercising independent judgment in his oppressive desire to discredit, harass and embarrass [the opposing party]"); see also Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. McCullough, 468 N.W.2d 458, 461 n.3 (Iowa 1991) (reiterating that a conflict of interest, by acquiring a proprietary interest in a client's litigation, is in consideration of the interest on "the attorney's independent judgment"); In the Matter of Devine, 513 N.Y.S.2d 844, 845 (N.Y.App.Div. 1987) (determining that an attorney, who was part-owner of his client's farm, obtained a proprietary interest in his client's civil action on behalf of the farm, because "he would benefit if the [clients] were successful" in litigation).
Clearly, O'Leary acquired a proprietary interest in the domestic relations controversy between the Cosgroves, in violation of Rule 1.8(i), when she paid child support and attempted to reduce its amount based on her personal involvement. See Attorney Grievance v. Harris, 371 Md. 510, 538, 810 A.2d 457, 474 (2002) (concluding that an attorney's purchase of his client's home during a foreclosure sale, while representing the client in a bankruptcy action, constituted a proprietary interest, in violation of Rule 1.8(j),  because the bankruptcy action was brought "to forestall the foreclosure of [the client's] house").
Rule 1.16(a) provides that "a lawyer . . . shall withdraw from the representation of a client if: (1) the representation will result in violation of the Maryland Lawyers' Rules of Professional Conduct . . . ." O'Leary's failure to withdraw from the representation after having started her intimate relationship with Mr. Cosgrove violated Rule 1.16(a).
Rule 4.2(a) provides that "in representing a client, a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or court order to do so." Judge Bailey found that O'Leary personally sent Ms. Cosgrove numerous text messages, to the point that Ms. Cosgrove obtained a temporary peace order; several of the messages concerned visitation and custody of the Cosgroves' children, as well as child support payments:
"The reason you qualify for child support is the daycare you pay. Your attorney needs to explain this to you."
"Call mr nowak asap he needs u to sign the consent order this afternoon."
"Joe [Mr. Cosgrove] is filing for full custody and asking that u see kids every other weekend. Talk to ur lawyer ..no judge will give u every weekend off. And if u get full custody we will only have them every other weekend. So either way we won't have them every weekend."
At no time did O'Leary obtain, or seek to obtain, Mr. Nowak's permission when she sent these text messages to Ms. Cosgrove. These communications went to the very heart of the divorce case, and O'Leary's advocacy regarding child support, custody and visitation in her communication with Ms. Cosgrove, in the absence of Mr. Nowak, violated Rule 4.2(a). See Attorney Grievance Commission v. Kent, 337 Md. 361, 377, 653 A.2d 909, 918 (1995), quoting In re McCaffrey, 549 P.2d 666, 668 (Or. 1976) (explaining that a purpose of the prohibition on contacting represented persons is to prevent "a person from being deprived of the advice of retained counsel by bypassing retained counsel").
With respect to Rule 8.1(a), which prohibits a lawyer in connection with a disciplinary matter from "knowingly mak[ing] a false statement of material fact, " Judge Bailey found that O'Leary knowingly made a false statement of material fact to Bar Counsel when she stated that Mr. Howes was Mr. Cosgrove's attorney. Judge Bailey further found that O'Leary misled Bar Counsel by stating that she signed the Consent Order because Mr. Howes was unavailable, in letters and during a meeting with Bar Counsel's investigator. O'Leary clearly violated Rule 8.1(a).
Rule 8.1(b) prohibits a lawyer in connection with a disciplinary matter from "knowingly fail[ing] to respond to a lawful demand for information from an admissions or disciplinary authority." On multiple occasions, O'Leary failed to respond to Bar Counsel's requests for information and documents during Bar Counsel's initial investigation. In October of 2011, Bar Counsel requested O'Leary provide, within ten days, copies of all text messages, email messages and further correspondence that she and Ms. Cosgrove exchanged between April of 2010 and October of 2011, as well as information to substantiate her statement that Mr. Howes was Mr. Cosgrove's attorney. O'Leary did not answer and, in November of 2011, Bar Counsel again requested that the information be provided in seven days, to which she did not respond. Her failure to timely respond to the October and November requests for information violated Rule 8.1(b). See Attorney Grievance v. Brown, 426 Md. 298, 323, 44 A.3d 344, 359 (2012).
Given O'Leary's multiple rule violations, she also violated Rule 8.4(a), which provides that it is professional misconduct for a lawyer to "violate or attempt to violate the Maryland Lawyers' Rules of Professional Conduct."
Rule 8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Judge Bailey determined, and we agree, that O'Leary's lies about Mr. Howes's role in the representation of Mr. Cosgrove and her continued representation in spite of her personal conflicts, some of which inured to her financial benefit, were dishonest. In Attorney Grievance v. Penn, 431 Md. 320, 65 A.3d 125 (2013), we determined that Brien Michael Penn violated Rule 8.4(c) when he concealed from his employer, a title insurance company, his self-dealing. Penn, acting on behalf of the company, retained and paid himself, as outside counsel, to perform legal work for the company, as well as assigned the company's interest in security deeds to himself. To hide his conduct from his employer, Penn created as a guise a Delaware-incorporated law firm. This concealment, we concluded, constituted "intentional, dishonest conduct" and violated Rule 8.4(c).
O'Leary similarly created the ruse that Mr. Howes was Mr. Cosgrove's attorney, in order to shield her continued involvement in Cosgrove v. Cosgrove from scrutiny. Her dishonesty concerning Mr. Howes, to both Mr. Nowak as well as Bar Counsel, therefore, violated Rule 8.4(c). See Attorney Grievance v. Harris, 403 Md. 142, 164, 939 A.2d 732, 745 (2008) ("We have said that Rules 8.1(a) and 8.4(c) are violated when an attorney acts dishonestly and deceitfully by knowingly making false statements to Bar Counsel.").
Rule 8.4(d) provides that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice." "[P]ublic confidence in the legal profession is a critical facet to the proper administration of justice and conduct that negatively impacts on the public's image or the perception of the courts or the legal profession violates Rule 8.4(d)." Attorney Grievance v. Whitehead, 405 Md. 240, 260, 950 A.2d 798, 810 (2008). O'Leary's unauthorized contact with Ms. Cosgrove regarding child support, child custody and other matters of the case without the consent of Ms. Cosgrove's attorney and O'Leary's repeated lies to both Mr. Nowak and Bar Counsel about Mr. Howes erode the public's confidence in the legal profession; we conclude that she violated Rule 8.4(d). See also Attorney Grievance v. Nelson, 425 Md. 344, 362-63, 40 A.3d 1039, 1049-50 (2012) (concluding that attorney violated Rule 8.4(d) by failing to respond to Bar Counsel's requests for information during the initial investigation). In summary, we conclude that Judge Bailey's findings of fact were supported by clear and convincing evidence and that O'Leary violated Rules 1.7(a)(2), 1.8(i), 1.16(a), 4.2(a), 8.1(a) and (b) and 8.4 (a), (c), and (d).
We now turn to determining the appropriate sanction. Bar Counsel recommends disbarment. No mitigation was found.
We turn to Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions for guidance regarding the presence of aggravating circumstances:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution.
Attorney Grievance v. Bleecker, 414 Md. 147, 176-77, 994 A.2d 928, 945-46 (2010). Bar Counsel, in this case, argues that factors (b), (c), (d), (e), (f), (g), and (i) are implicated and support the ultimate sanction of disbarment.
Under factor (b), O'Leary's selfish and dishonest motive is evidenced by her continuously negotiating the terms of Mr. Cosgrove's divorce with his spouse, without her attorney's consent, while engaging in an intimate, co-habitational, financial relationship with Mr. Cosgrove, as well as her lies to Mr. Howes, Mr. Nowak and Bar Counsel to shield her behavior.
With respect to factor (c), "[a]n attorney can engage in a pattern of misconduct by committing a number of acts in order to achieve a common goal." Attorney Grievance v. Penn, 431 Md. 320, 345, 65 A.3d 125, 140 (2013), citing Attorney Grievance v. Coppola, 419 Md. 370, 406, 19 A.3d 431, 452-53 (2011). Although O'Leary acknowledged to Mr. Nowak that her intimate relationship with her client constituted a conflict of interest, she continuously misrepresented that she would terminate her representation, all while communicating with Ms. Cosgrove regarding the terms of child support and custody, without Mr. Nowak's consent. She fabricated Mr. Howes's role in Cosgrove v. Cosgrove to Mr. Nowak and Bar Counsel. O'Leary committed multiple ethical violations to achieve the common goal of securing for Mr. Cosgrove, and herself in part, a favorable settlement. O'Leary's repeated actions constituted a pattern of misconduct, under factor (c), as well as multiple offenses, under factor (d).
O'Leary's failure to respond to repeated requests for documents implicates factor (e), and her false statements to Bar Counsel clearly implicate factor (f). Attorney Grievance v. Dominguez, 427 Md. 308, 327, 47 A.3d 975, 985-86 (2012) ("Dominguez's false statement to Bar Counsel clearly implicates factor (f), and her failure to respond to subsequent, repeated requests for documents implicates factor (e)."); Nelson, 425 Md. at 364, 40 A.3d at 1050 ("Given Respondent's repeated failures to respond to Bar Counsel, aggravating factor (e) is applicable.").
As to factor (g), O'Leary has continued to refuse to acknowledge the wrongful nature of her conduct, citing instead "malicious lies told by Diana Cosgrove" as the cause for Bar Counsel's Petition.
With regard to factor (i), O'Leary has had experience in the practice of law, having been admitted for more than 8 years at the time she commenced representation of Mr.
Cosgrove. Attorney Grievance Commission v. Kent, 337 Md. 361, 374, 653 A.2d 909, 915 (1995) (concluding that attorney's legal background was "significant, " in part because he had been admitted to the Bar for six years).
This conduct, in the absence of any mitigation, warrants disbarment. See Attorney Grievance v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488 (2001) ("[I]ntentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse.").
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST GINA M. O'LEARY.
Adkins, J., Concurring In Part and Dissenting In Part
There is no question that Maryland has taken a clear stance against a lawyer entering a sexual relationship with a client while representing that client in a matrimonial matter. See Attorney Grievance Comm'n v. Culver, 381 Md. 241, 274, 849 A.2d 423, 443 (2004). Thus, I agree with the Majority that Respondent should be disciplined for doing so, and join in most other respects with the Majority opinion. But, respectfully, I submit that the Majority is mistaken in accepting Bar Counsel's invitation to broaden the scope of Rule 1.8(i).
Rule 1.8(i) provides that a "lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client." The Majority finds this Rule applicable to O'Leary on grounds that she "participated financially in paying the child support obligations of Mr. Cosgrove, while she negotiated the amount of child support that he was to pay Diana Cosgrove." Maj. Slip Op. at 31. I disagree that her action in representing Mr. Cosgrove, while living with him and sharing expenses, constituted a violation of Rule 1.8(i), and believe this holding has broad implications for practicing attorneys.
Both Maryland and the American Bar Association explain the history and purpose of Rule 1.8(i) as follows:
Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. . . . [This] general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires.
Maryland Lawyers' Rules of Professional Conduct 1.8 cmt. 16 (emphasis added); American Bar Association, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005, 217 (2006) (emphasis added).
The concept of champerty originated in medieval England. Its initial purpose was to stop unscrupulous nobles and royal officials from lending their names to bolster the credibility of doubtful and fraudulent claims in return for a share of the property recovered. See Osprey, Inc. v. Cabana Ltd. P'ship, 532 S.E.2d 269, 273 (S.C. 2000); see also R . D . C o x, Champerty as We Know It, 13 Memphis State U.L. Rev. 139 (1983); Max Radin, Maintenance by Champerty, 24 Cal. L. Rev. 48 (1935); Percy H. Winfield, The History of Maintenance and Champerty 35 Law Q. Rev. 50 (1919). As times changed, the doctrine evolved away from lords and nobles, but retained its core focus on preventing strangers to litigation from obtaining a financial stake in a case. The legal encyclopedia Corpus Juris, for example, provides a helpful overview of the topic:
At common law, champerty is defined to be a bargain by the terms of which a person having otherwise no interest in the subject matter of an action undertakes to carry on the suit at his or her own expense, or to aid in so doing, in consideration of receiving, in the event of success, some part of the land, property, or money recovered or deriving some benefit therefrom. Champerty is an officious intermeddling in a suit by a stranger, by maintaining or assisting either party with money or otherwise to prosecute or defend it, and dividing the proceeds obtained in the suit between the party and the stranger. Champerty also has been defined as a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party's claim in consideration of receiving part of any judgment proceeds. An agreement is said to be "champertous" when a person without an interest in another's lawsuit undertakes to carry it on at his or her own expense, in whole or in part, in consideration of receiving, in the event of success, a part of the proceeds of the litigation.
14 C.J.S. Champerty and Maintenance § 1 (2006) (footnotes omitted). This text goes on to explain the limits of the doctrine:
It is necessary that the interference in the litigation is clearly officious and for the purpose of stirring up strife and continuing litigation. Officious intermeddling, as a necessary element of champerty, is offering unnecessary and unwanted advice or services or being meddlesome in a high-handed or overbearing way.