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Attorney Grievance Commission of Maryland v. O'Leary

Court of Appeals of Maryland

July 10, 2013

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
GINA M. O'LEARY

Circuit Court for Baltimore County Case No. 03-C-12-005723

Bell, C.J., Harrell, Battaglia, Greene, Adkins, Barbera, McDonald, JJ.[*]

Battaglia, J.

Gina M. O'Leary, Respondent, was admitted to the Bar of this Court on December 12, 2001.[1] On May 21, 2012, the Attorney Grievance Commission, acting through Bar Counsel ("Bar Counsel"), pursuant to Maryland Rule 16-751(a), [2] filed a "Petition For Disciplinary or Remedial Action" against O'Leary, charging numerous violations of the Maryland Lawyers' Rules of Professional Conduct, including Rules 1.7(a)(2) (Conflict of Interest: General Rule), [3] 1.8(i) (Conflict of Interest: Current Clients: Specific Rules), [4]

1.16(a)(1) (Declining or Terminating Representation), [5] 4.2(a) (Communication with Person Represented by Counsel), [6] 8.1 (Bar Admission and Disciplinary Matters), [7] and 8.4(a), (c), and (d) (Misconduct).[8]

The factual bases of these charges arose out of O'Leary's representation of Wayne Joseph Cosgrove in Cosgrove v. Cosgrove, a divorce and child custody action initiated by his wife, Diana Cosgrove. Bar Counsel alleged that O'Leary entered into a romantic relationship with Mr. Cosgrove, repeatedly communicated with Ms. Cosgrove about the subject matter of the case without the consent of her counsel, David Nowak, and repeatedly misrepresented to Mr. Nowak that she did not represent Mr. Cosgrove. The Petition also alleged that O'Leary, during the course of Bar Counsel's investigation, knowingly made false statements to Bar Counsel and knowingly failed to respond to lawful requests for information. In an Order dated May 23, 2012, this Court referred the matter to Judge Sherrie R. Bailey of the Circuit Court for Baltimore County for a hearing, pursuant to Rule 16-757.[9]

On June 6, 2012, O'Leary was personally served with the Petition, as well as Bar Counsel's Request for Admission of Facts and Genuineness of Documents and attached exhibits, First Set of Interrogatories, and First Request for Production of Documents. O'Leary did not respond, and Judge Bailey entered an Order of Default on July 13, 2012; a hearing was scheduled for August 20, 2012.

On August 7, 2012, O'Leary filed an Answer to the Petition, a Motion to Vacate the Order of Default and a Request for Postponement. Bar Counsel did not oppose O'Leary's request to postpone the hearing, which was granted by Judge Bailey; the hearing was rescheduled for September 27, 2012.

On August 30, 2012, Bar Counsel filed a Motion for Sanctions pursuant to Rules 2-432 and 2-433, [10] claiming that O'Leary had failed to respond to interrogatories, requests for admissions and request for documents. Bar Counsel also filed a supplement, on September 13, 2012, after O'Leary failed to appear for her deposition on September 11, 2012; O'Leary did not respond. Judge Bailey granted Bar Counsel's Motion for Sanctions and ordered that each of Bar Counsel's Requests for Admission of Fact be deemed admitted, each document attached to Bar Counsel's First Request for Admission of Fact and Genuineness of Documents be deemed genuine and that O'Leary be precluded at trial from presenting any documents, calling any witnesses, presenting any testimony or evidence contradictory to Bar Counsel's Requests for Admission of Facts and Genuineness of Documents, or testifying on her own behalf, except in mitigation.

After the hearing, Judge Bailey issued written Findings of Fact and Conclusions of Law. She found that O'Leary began a romantic, then intimate relationship with Mr. Cosgrove while she represented him in Cosgrove v. Cosgrove, a divorce case, and that the two of them moved in together and contributed child support payments to Diana Cosgrove. The findings also recognized that O'Leary repeatedly acknowledged to opposing counsel, Mr. Nowak, that due to her personal relationship with Mr. Cosgrove, her employer, Mark W. Howes, would be representing Mr. Cosgrove. Judge Bailey further found that O'Leary personally communicated with Ms. Cosgrove about the case while Ms. Cosgrove was represented by Mr. Nowak, who never consented to O'Leary's communications with his client. It was not until Ms. Cosgrove obtained a temporary peace order against O'Leary, in July of 2011, that Mr. Nowak learned of O'Leary's communications with his client.

Judge Bailey further found that O'Leary never terminated her representation of Mr. Cosgrove. The hearing judge found that O'Leary was fired by Mr. Howes in May of 2011 and was directed to strike his name and his firm's name from Cosgrove v. Cosgrove, which O'Leary did not do. O'Leary continued to engage in settlement negotiations with Mr. Nowak on behalf of Mr. Cosgrove and signed the resulting Consent Order as "Attorney for the Defendant, " Mr. Cosgrove, in June of 2011. Judge Bailey also found that O'Leary repeatedly misrepresented, during Bar Counsel's investigation, that she signed the Consent Order because Mr. Howes was unavailable and that she failed to respond to three valid requests for information. Judge Bailey concluded that O'Leary's conduct violated, by clear and convincing evidence, Rules 1.7(a), 1.8(i), 1.16(a), 4.2(a), 8.1(a) and (b), and 8.4(a), (c), and (d) and that O'Leary failed to prove any facts in mitigation by a preponderance of the evidence.[11] Judge Bailey's Findings of Fact and Conclusions of Law stated:

FINDINGS OF FACT AND CONCLUSIONS OF LAW[12]

PROCEDURAL HISTORY

This attorney disciplinary matter was transmitted to this Court by the Court of Appeals by Order dated May 23, 2012 to make findings of fact and conclusions of law. On June 6, 2012, the Respondent was personally served with the Order of the Court of Appeals dated May 23, 2012, the Petition for Disciplinary or Remedial Action, Summons of the Circuit Court for Baltimore County dated May 31, 2012, Petitioner's First Set of Interrogatories, Petitioner's First Request for Production of Documents and Electronically Stored Information and Property and Petitioner's First Request for Admission of Facts and Genuineness of Documents and attached Exhibits. In its Petition for Disciplinary or Remedial Action, Petitioner alleged that Respondent violated the following Maryland Lawyers' Rules of Professional Conduct ("MRPC"): 1.7 (conflict ...

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