Maryland’s top court Wednesday disbarred an attorney, by a vote of 5-2, for having an intimate relationship with her client in a divorce and child custody proceeding, having a financial interest in his child-support obligation, communicating directly with the opposing party and lying to bar counsel.
Gina M. O’Leary’s affair with client W. Joseph Cosgrove, which led to the other violations of Maryland Lawyers’ Rules of Professional Conduct, was unethical as it gave his estranged wife ammunition in her ultimately successful efforts to secure child custody, the Court of Appeals ruled.
“[I]ntimate 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, … to enable the spouse to seek an immediate absolute divorce, and may be a factor for consideration in determining child custody,” Judge Lynne A. Battaglia wrote in her majority opinion ordering disbarment. “[I]n 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.”
Frequent efforts to call O’Leary at her listed address Wednesday resulted in busy signals.
Bar Counsel Glenn M. Grossman, the state Attorney Grievance Commission’s chief prosecutor of wayward attorneys, declined to comment on the case.
O’Leary, in August 2010, agreed to represent Cosgrove in divorce and child custody and support litigation that Diana Cosgrove had filed against him that April in Baltimore County Circuit Court. O’Leary entered her appearance and that of her employer, the Law Offices of Mark W. Howes LLC in Annapolis, in November 2010, the same month she and Cosgrove became romantically involved.
In January 2011, Cosgrove moved in with O’Leary and they began sharing expenses — including his child support payments — while the litigation was pending, in violation of ethical rules barring attorneys from having a “proprietary interest” in a case, the high court said.
“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 … because a lawyer’s economic interest in the outcome of the client’s cases can erode the lawyer’s independent judgment,” Battaglia wrote. “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.”
The court also found ethical fault with O’Leary’s sending of text messages to the estranged wife, Diana Cosgrove, on several occasions despite knowing she was represented by attorney David D. Nowak, a Towson solo practitioner.
O’Leary’s text messages told Diana Cosgrove “the reason you qualify for child support is the daycare you pay. Your attorney needs to explain this to you,” to “call mr nowak asap he needs u to sign the consent order this afternoon” and that “Joe is filing for full custody and asking that u see kids every other weekend. Talk to ur lawyer,” according to the high court’s opinion.
“At no time did O’Leary obtain, or seek to obtain, Mr. Nowak’s permission when she sent those text messages to Ms. Cosgrove,” Battaglia wrote. “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).”
Mark Howes fired O’Leary in May 2011, and the law firm withdrew from the case in September 2011.
During the disciplinary investigation of her representation of Cosgrove, O’Leary “knowingly made a false statement of material fact” when she told bar counsel that Howes was the attorney of record in the case, the high court said. O’Leary also failed to respond in a timely fashion to bar counsel’s requests for information and documents in the case, the high court held.
Battaglia was joined in her opinion by Chief Judge Mary Ellen Barbera, Glenn T. Harrell Jr., Clayton Greene Jr. and Robert N. McDonald.
Judge Sally D. Adkins and retired Chief Judge Robert M. Bell concurred that O’Leary broke ethical rules but said the sanction should have been indefinite suspension rather than disbarment. The two judges added that the majority went too far in holding that O’Leary’s sharing of Cosgrove’s expenses gave her an unethical proprietary interest in the child support case.
“The informal sharing of income and expenses between a romantic couple in the payment of child support is not [unethical] because the living arrangement is not focused on, or motivated by, the litigation,” Adkins wrote for herself and Bell, who stepped down Saturday when he reached the Maryland Constitution’s mandatory retirement age of 70.
“Instead, the arrangement has different and broader general purposes relating to everyday life and how a couple decides to pay for their expenses.” Adkins added. “To the extent, therefore that O’Leary ‘acquired an interest’ in Mr. Cosgrove’s defense of his spouse’s child support claim, it was only incidental to their mutual pursuit of an intimate living arrangement.”
Nowak, Diana Cosgrove’s lawyer, filed the Attorney Grievance Commission complaint against O’Leary that ultimately led to her disbarment.
“Attorneys when representing people should deal with the other attorney” rather than directly with the opposing party, Nowak said. “It is our role to advocate for [our clients], protect them and speak for them.”
WHAT THE COURT HELD
Attorney Grievance Commission v.Gina M. O’Leary, CA Misc. AG No. 20 Sept. Term 2012. Reported. Opinion by Battaglia, J. Concurrence and dissent by Adkins, J. Argued May 2, 2013. Filed July 10, 2013.
Is disbarment appropriate for an attorney who has an intimate relationship with her client in a family law case, has a financial interest in his child support payments, communicates directly with the other side and lies to bar counsel?
Yes; those violations of ethical rules governing conflict of interest, communication with parties and candor with bar counsel warrant disbarment.
Lydia E. Lawless for petitioner; Gina M. O’Leary for respondent.
RecordFax # 13-0710-20