# Reinstatement of Cooke

> Court of Appeals of Maryland · April 25, 2012 · 425 Md. 652

URL: https://www.frixlaw.com/law-library/cases/9751072

## Case

- **Full name:** In the Matter of Ira C. COOKE for Reinstatement to the Bar of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** April 25, 2012
- **Citations:** 425 Md. 652; 42 A.3d 610; 2012 Md. LEXIS 215; 2012 WL 1521988
- **Precedential status:** Published
- **Opinion:** Dissent by Adkins
- **Judges:** Bell, Adkins, McDonald
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751072

## How later opinions describe it (automated extraction)

- describing this Court’s “decision-making” relative to reinstatement

## Opinion text

ADKINS, J.,
dissenting, in which BATTAGLIA and McDonald, jj., join.
We are presented with Petitioner Ira C. Cooke’s petition for reinstatement to the Maryland bar. This petition addresses Cooke’s previous consent to disbarment, after being convicted in California of criminal conspiracy, grand theft, and commercial bribery. Cooke’s conviction was overturned in 2006 by the California Court of Appeal, because of a prosecutor’s improper evidentiary tactics.
The test for reinstatement under the Maryland Rules requires this Court to consider “the nature and circumstances of the petitioner’s original conduct, the petitioner’s subsequent conduct and reformation, the petitioner’s current character, and the petitioner’s current qualifications and competence to practice law.” Maryland Rule 16-781(g).
I respectfully dissent because I believe the first factor in our test, “the nature and circumstances of the petitioner’s original conduct,” requires further information and analysis. I believe the gaps in the record and the troubling accusations levied toward Cooke do not favor his reinstatement at this time.
As the Majority correctly notes, the overturning of Cooke’s conviction does not serve to completely wipe away the under *692 lying reasons for his consent to disbarment. The Majority recognizes that an attorney consenting to disbarment must acknowledge, “quite apart from the fact that [he] has been convicted, that ‘sufficient evidence could be produced to sustain the allegations of misconduct[.]’ ” 1 Maj. Op. at 671, 42 A.3d at 621 n. 16. The Majority uses this requirement of consent to “undermine any contention that the petitioner’s consent was conditioned ‘solely’ on the convictions[,]” as Petitioner had argued. Id.; see also id. at 679-80, 42 A.3d at 627 n. 20 (“[T]he reversal of the convictions did not mean that the petitioner did not engage in the conduct.... Consequently, the petitioner’s disbarment is not vitiated automatically. The petitioner did not consent to disbarment due to a conviction for conduct which was not a crime.”).
The Majority cites the case of former governor Marvin Mandel to say that if a conviction leading to disbarment is overturned on the merits, then there is no basis to support the disbarment. See Maj. Op. at 678-80, 42 A.3d at 626-27 n. 20. But the Majority acknowledges that the Mandel case is different, because unlike here, Mandel did not consent to disbarment. Without the consent, there was not the required admission by Mandel that “sufficient evidence could be produced to sustain the allegations of misconduct.” See Maryland Rule 16 — 772(b)(2)(B).
To be sure, had the evidentiary misconduct by the California prosecutor not occurred here, Petitioner might have never been convicted and thus never consented to this disbarment. The Majority correctly recognizes, however, that even “divorced from the disputed and erroneous evidentiary rulings, or inferences drawable therefrom” in the California trial court, a jury “could have found ... that [Cooke] committed the charged offenses[.]” Maj. Op. at 675, 42 A.3d at 624. Building on this, the Majority concludes that Cooke “engaged in the *693 misconduct that he admitted.” Maj. Op. at 677, 42 A.3d at 625. Building further, and incorporating the language of Cooke’s consent to disbarment, 2 the Majority concludes that Cooke’s “payments to his co-defendant, being in violation of Rule 8.4(c), involved dishonesty, fraud[,] deceitf,] or misrepresentationf,]” misconduct that “requires a serious and prompt response.” Maj. Op. at 681, 42 A.3d at 628. That response was Cooke’s consent to disbarment.
The Rules require that any attorney’s consent to disbarment contain language stating that he is “aware of the effects of the disbarment” to which he is consenting. Rule 16-772(b)(2)(E). Cooke’s petition contained such language, and surely he must have understood the consequences of admitting “criminal conduct” in a consent petition, especially considering our well-established principle that “the more serious the original misconduct was, the heavier is the burden to prove present fitness for readmission to the bar.” Maj. Op. at 662, 42 A.3d at 616 (citing In re Barton, 273 Md. 377, 380 , 329 A.2d 102, 104 (1974)).
The record references additional troubling accusations against Cooke, including a forgery lawsuit, which was apparently settled by the parties. Although the California Court of Appeal held evidence of such a lawsuit inadmissible in a criminal case to impeach Cooke’s credibility, 3 this Court may consider such evidence as bearing on Cooke’s character and fitness to practice law. The particulars of the forgery lawsuit and other allegations of misconduct are unclear from the record before us, which does not include transcripts from the criminal trial. The Majority opinion contains no analysis or evaluation of these allegations, as required by Rule 16-781(g)(6), bearing on whether the “petitioner currently has the requisite honesty and integrity to practice law[.]” The Major *694 ity views the allegations rather uncritically, despite the serious implications contained therein.
Cooke’s consent to disbarment precluded fact-finding proceedings here in Maryland, which further exacerbates the incomplete-record problem. As the Majority states, “the facts found by the jury or the findings it made as to the enhancements are not binding and certainly not conclusive.” Maj. Op. at 677, 42 A.3d at 625. The Majority observes that the lack of fact-finding in Maryland is a major contributing factor to the lean nature of the record before this Court. See id. at 667, 42 A.3d at 619 n. 11 (“Bar Counsel was not required to conduct an independent investigation of the facts and circumstances surrounding Cooke’s charges.”); id. at 671-72, 42 A.3d at 622 (“Accordingly, there was no occasion, nor need, for the [Attorney Grievance] Commission to develop the facts[.]”). 4
This Court would typically endeavor to learn these kinds of facts, rather than merely lament the lean record. The Maryland Rules provide for just this sort of problem. They allow us to order “further proceedings” in the course of reviewing reinstatement petitions. See Maryland Rule 16-781(h). 5 I submit that this is a more appropriate course of action regarding Mr. Cooke than reinstatement on this bare record. The gaps in the record are troubling, and it is within this Court’s power to order them filled. Furthermore, I believe Petitioner should provide all necessary information to Bar Counsel as listed in Maryland Rule 16-781(d). I disagree with Bar Counsel’s yiew that those provisions are inapplicable to Petitioner. This information would include Petitioner’s employment history, Petitioner’s financial records, civil actions *695 involving the Petitioner, and “any other information that the [P]etitioner believes is relevant to determining whether the [PJetitioner possesses the character and fitness necessary for reinstatement.” See Rule 16-781(d). Such information would be especially illuminating in this case, given the ambiguities in the record.
The Majority breezes by these record gaps as mere potholes on the road to Cooke’s deserved reinstatement, but I am unpersuaded. The Maryland Rules require anyone consenting to disbarment to admit a certain degree of misconduct, irrespective of any conviction in another state. Once that admission is made, I believe it incautious to allow the reversal of a conviction — in a separate proceeding — to conclusively silence a voluntary admission of misconduct, especially when other bad acts potentially bearing on a disbarred attorney’s overall character lurk in an undeveloped factual record.
For the foregoing reasons, I respectfully dissent.
Judges BATTAGLIA and McDONALD have authorized me to say that they agree with the views expressed in this opinion. Judge BATTAGLIA and I also agree with the views expressed in Judge McDONALD’s dissenting opinion.
. This is required under the Maryland Rules. The attorney who consents to disbarment must certify that he or she “knows that if a hearing were to be held, sufficient evidence could be produced to sustain the allegations of misconduct[.]” See Maryland Rule 16-772(b)(2)(B).
. Cooke’s consent petition certifies that his "conduct was criminal conduct adversely reflecting on his honesty, trustworthiness, and fitness as a lawyer[.]”
. See People v. Cumberworth, No. F047243, 2006 WL 3549939 , at *2-5, 2006 Cal.App. Unpub. LEXIS 11142, at *7-16 (Cal.Ct.App. Dec. 11, 2006).
. Puzzlingly, the Majority seems to throw up its hands and disregard the consent to disbarment because "there is no evidence of ... misconduct that would sustain the disbarment to which the petitioner consented!, 1” Maj. Op. at 691, 42 A.3d at 633, despite earlier in its opinion acknowledging that Cooke "engaged in the misconduct that he admitted!,]” Maj. Op. at 677, 42 A.3d at 625.
. In such further proceedings, Cooke would "have the burden of proving the averments of the petition [for reinstatement] by clear and convincing evidence.” Maryland Rule 16 — 781(i).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751072. Public record. Not legal advice.