Attorney Grievance Commission v. Kirwan , 450 Md. 447 ( 2016 )

Attorney Grievance Comm’n v. Susan Myra Geller Kirwan, Misc. Docket AG No. 52,
September Term, 2015.
ATTORNEY DISCIPLINE — SANCTIONS — INDEFINITE SUSPENSION. The
Court of Appeals indefinitely suspended an attorney who failed to competently and
diligently represent a client. The attorney did not pursue the client’s claim or take any
meaningful action towards pursuing the claim. The attorney abandoned the client after
failing to communicate over a span of ten months despite the client’s numerous attempts.
The attorney also failed to communicate with the client’s new attorney and Bar Counsel’s
numerous requests for information during its investigation. These actions violated the
Maryland Lawyers’ Rules of Professional Conduct Rules 1.1 (Competence), 1.3
(Diligence), 1.4(a)(2)-(3) and (b) (Communication), 1.16(d) (Declining or Terminating
Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) and (d)
(Misconduct).
Circuit Court for Baltimore City
Case No. 24-C-15-005773 AG
Argued: October 11, 2016
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 52
September Term, 2015
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
SUSAN MYRA GELLER KIRWAN
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
Opinion by Getty, J.
Filed: November 21, 2016
This attorney disciplinary matter concerns Ms. Susan Myra Geller Kirwan (“Ms.
Kirwan”), Respondent, a lawyer who was retained in October 2013 to represent a minor
child in a negligence case against Baltimore City Public Schools. Ms. Kirwan neglected
to pursue substantive action in furtherance of the child’s case after she was retained and
failed to respond to her client’s numerous requests for information.
The Attorney Grievance Commission (“Commission”), Petitioner, filed a Petition
for Disciplinary or Remedial Action with this Court alleging multiple violations of the
Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”). 1 After an evidentiary
hearing, the hearing judge issued written findings of fact and conclusions of law to this
Court, concluding that Ms. Kirwan violated MLRPC 1.1, 1.3, 1.4(a)(2)-(3) and (b), 1.16(d),
8.1(b), and 8.4(a) and (d) as charged by the Commission. We agree. Accordingly, we
suspend Ms. Kirwan from the practice of law indefinitely.
Background
A. Procedural History
On October 27, 2015, the Commission, through Bar Counsel, filed a Petition for
Disciplinary or Remedial Action with this Court against Ms. Kirwan. The Commission
charged Ms. Kirwan with violations of MLRPC 1.1 (Competence), 1.3 (Diligence),
1.4(a)(2)-(3) and (b) (Communication), 1.16(d) (Declining or Terminating
Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) and (d)
1
Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of
Professional Conduct (“MARPC”) and moved to Title 19, Chapter 300 of the Maryland
Rules. This opinion refers to the MLRPC, not the MARPC, because all relevant conduct
took place before July 1, 2016.
1
(Misconduct) arising out of her representation of Ms. T.S. (“Ms. S.”) and her minor child,
T.N.
Pursuant to Maryland Rule 16-752(a), the Court designated Judge Cynthia H. Jones
of the Circuit Court for Baltimore City to conduct an evidentiary hearing concerning the
alleged violations and make findings of fact and recommended conclusions of law.
The evidentiary hearing was conducted on April 4, 2016, at which several witnesses
testified including Ms. Kirwan. On May 12, 2016, the hearing judge issued a thorough
memorandum opinion in which she made detailed findings of fact concerning the alleged
violations, as well as findings concerning aggravating and mitigating circumstances. In
her recommended conclusions of law, the hearing judge concluded that Ms. Kirwan
committed all of the violations charged by the Commission.
Neither party filed any exceptions to the hearing judge’s findings of fact and
conclusions of law. On October 11, 2016, oral arguments were presented to this Court by
Ms. Kirwan and the Commission, which primarily focused on the appropriate sanction.
B. Facts
The hearing judge’s factual findings are uncontested since neither party filed any
exceptions. Therefore, we treat the hearing judge’s fact findings as established. Md. Rule
16-759(b)(2)(A). Those findings are summarized as follows.
Law Practice
Ms. Kirwan was admitted to the Maryland Bar on December 30, 1983. At all times
from October 2013 through the present, Ms. Kirwan has maintained a law office in
Baltimore City.
2
Representation
On October 7, 2013, Ms. Kirwan was retained to represent T.N., a minor child who
suffered a broken wrist on a Baltimore City elementary school playground. T.N.’s mother,
Ms. S, retained Ms. Kirwan to pursue a claim against Baltimore City Public Schools for
the child’s injury. Ms. S. signed a retainer agreement and forms authorizing Ms. Kirwan
to have access to T.N.’s school and medical records. After the retainer was signed, Ms.
Kirwan maintained contact with Ms. S. for two months regarding T.N.’s case, and Ms.
Kirwan received a copy of T.N.’s medical records from Ms. S.
Beginning in December 2013, Ms. Kirwan became unresponsive to Ms. S. Between
December 5, 2013, and May 29, 2014, Ms. S. called Ms. Kirwan and left four messages
with Ms. Kirwan’s answering service. The messages asked Ms. Kirwan to return Ms. S.’s
calls, to provide an update on T.N.’s case and to notify her if Ms. Kirwan did not want to
handle T.N.’s case. On May 29, 2014, Ms. S.’s message stated she had called Ms. Kirwan
numerous times without receiving a call back.
Ms. S. then attempted to communicate with Ms. Kirwan through email. Ms. S.
emailed Ms. Kirwan twice on June 9, 2014, asking Ms. Kirwan to call her with an update
on her child’s case. Ms. Kirwan replied to Ms. S.’s email on June 10, 2014, indicating she
would be in touch with Ms. S. later that day or the following afternoon. Ms. S. responded
by providing her work and mobile phone numbers to facilitate this communication.
However, Ms. Kirwan failed to make the promised phone call. So, Ms. S. sent Ms. Kirwan
an email two days later stating she still had not received a call back and requesting Ms.
Kirwan call her that day. Again, Ms. Kirwan did not respond.
3
Ms. S.’s attempts to contact Ms. Kirwan continued. On June 12, 2014, Ms. S.
emailed Ms. Kirwan asking what work Ms. Kirwan performed and whether Ms. S. should
retain a new attorney. Ms. S. sent a second email on June 12, 2014, requesting an update
on the case. On July 18, 2014, Ms. S. left another phone message with Ms. Kirwan’s
answering service requesting an update on the case and indicating that the call was urgent.
Ms. Kirwan did not respond to Ms. S.’s emails or phone message.
On August 26, 2014, Ms. S. filed a complaint against Ms. Kirwan with the
Commission. Ms. S.’s complaint stated, “I have been calling and leaving messages. No
response!!! I don’t know what is going [on] with [T.N.’s] case against the Baltimore City
School system.”
In September 2014, Ms. S. unsuccessfully continued her attempts to reach Ms.
Kirwan by leaving another phone message and visiting Ms. Kirwan’s office in person,
where she slid a note under Ms. Kirwan’s office door.
Failure to Respond to Bar Counsel
On September 30, 2014, the Commission sent a letter to Ms. Kirwan indicating that
a complaint, unrelated to Ms. S.’s complaint, against Ms. Kirwan was dismissed. However,
the Commission issued a warning to Ms. Kirwan for failing to respond to Bar Counsel’s
lawful demand for information in relation to the complaint, and stated that this conduct was
a violation of MLRPC 8.1(b).
On October 9, 2014, the Commission sent Ms. Kirwan a letter indicating that Ms.
S. filed a complaint against her and requesting a written response within 15 days. Ms.
Kirwan did not respond to this request. The Commission sent a second letter on November
4
13, 2014, indicating it did not receive a response and requesting a response by December
1, 2014. Ms. Kirwan received the letter2 and did not file a response. The Commission sent
a third letter on January 22, 2015, indicating that Ms. S.’s complaint was reclassified as a
docketed complaint due to Ms. Kirwan’s failure to respond and requesting a response by
February 2, 2015. Ms. Kirwan did not respond.
On March 4, 2015, Mr. Edwin P. Karr, a Commission investigator, spoke with Ms.
Kirwan on the phone and confirmed that Ms. Kirwan received all three letters sent by the
Commission. Mr. Karr advised Ms. Kirwan that her response was required within one
week, by March 11, 2015. Ms. Kirwan did not respond. The Commission’s Petition for
Disciplinary or Remedial Action followed.
Legal Malpractice Claim
On June 26, 2015, the Collins Legal Group LLC, through its counsel Ms. Tiffani S.
Collins, Esq., sent a letter to Ms. Kirwan stating that it had been retained by T.N., through
her mother Ms. S. The letter stated that the firm was representing T.N. in a legal
malpractice claim against Ms. Kirwan and requested Ms. Kirwan’s malpractice insurance
information. The letter also asked Ms. Kirwan to forward the letter to her malpractice
carrier. Ms. Kirwan did not respond.
2
This Commission’s November 13 letter was sent by certified mail, and a receipt from
November 14, 2014, contains the signature “S. Kirwan.” Ms. Kirwan denied that the
signature was hers and the trial court agreed with Ms. Kirwan. However, Ms. Kirwan
admitted receipt of the letter despite the fact that she did not personally sign the receipt.
5
Discussion
The hearing judge found by clear and convincing evidence that Ms. Kirwan violated
MLRPC 1.1, 1.3, 1.4(a)(2)-(3) and (b), 1.16(d), 8.1(b), and 8.4(a) and (d). We review
recommended conclusions of law without deference to the hearing judge. Md. Rule 16-
759(b)(1). For the reasons that follow, we agree with all of the hearing judge’s conclusions
of law.
A. Violations of MLRPC
MLRPC 1.1 (Competence)
MLRPC 1.1 states, “A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation.” A lawyer violates MLRPC 1.1
when he or she fails to act or acts in an untimely manner, which results in harm to his or
her client. Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 222 (2012) (quoting
Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 (2012)).
As the hearing judge stated, Ms. Kirwan’s failure to take any meaningful action
towards pursuing her client’s claim did not meet the standards of competent practitioners
and Ms. Kirwan was not adequately prepared, which resulted in harm to T.N. Ms. Kirwan
spoke with Ms. S. in the two months after the retainer agreement was signed and received
T.N.’s medical records, which were collected by Ms. S. Ms. Kirwan testified that she
began drafting a letter to the City Solicitor to place the City on notice of her client’s claim,
though she presented no evidence of this letter’s existence at the hearing. Ms. Kirwan also
did not present evidence of any other substantive work performed on behalf of T.N. The
6
hearing judge found that Ms. Kirwan’s failure to act harmed her client since the statute of
limitations lapsed and T.N. is now unable to pursue her claim against the City. 3 For these
reasons, the hearing judge found that Ms. Kirwan violated MLRPC 1.1. We agree. Ms.
Kirwan failed to take the necessary steps to further her client’s case. Therefore, Ms.
Kirwan violated MLRPC 1.1.
MLRPC 1.3 (Diligence)
MLRPC 1.3 states, “A lawyer shall act with reasonable diligence and promptness
in representing a client.” A lawyer also violates MLRPC 1.3 when his or her lack of
preparation or thoroughness violates MLRPC 1.1. Attorney Grievance Comm’n v. Moore,
447 Md. 253, 267 (2016). Furthermore, “an attorney’s failure to take fundamental steps in
furthering a client’s matter qualifies as neglect and inattentiveness to a client’s interest, and
thereby is a violation of MLRPC 1.3.” Garrett, 427 Md. at 223 (citing Attorney Grievance
Comm’n v. Gisriel, 409 Md. 331, 371 (2009)). The hearing judge concluded that Ms.
Kirwan’s failure to take any action toward pursuing her client’s claim demonstrated a
failure to act with diligence and promptness. We agree that Ms. Kirwan also violated
MLRPC 1.3.
MLRPC 1.4 (Communication)
The hearing judge found that Ms. Kirwan violated MLRPC 1.4(a)(2); (a)(3); and
(b). In relevant part, MLRPC 1.4 requires a lawyer to “keep the client reasonably informed
3
At the hearing, Ms. Kirwan testified that Maryland’s Local Government Tort Claims Act
requires notice of the claim within 180 days of the injury pursuant to Maryland Code,
Courts and Judicial Proceedings Article, § 5-304. The statute was amended in 2015 to
extend the notice period to one year though this change did not affect T.N.’s case.
7
about the status of the matter” and “promptly comply with reasonable requests for
information.” MLRPC 1.4(a)(2); (a)(3). A lawyer is also required to “explain a matter to
the extent reasonably necessary to permit the client to make informed decisions regarding
the representation.” MLRPC 1.4(b).
A lawyer’s repeated failure to return his or her client’s calls or requests for
information is a failure to communicate. See Attorney Grievance Comm’n v. Gelb, 440
Md. 312, 321 (2014). We have stated, “It is beyond cavil that an attorney violates MLRPC
1.4 when he or she ignores client requests for information and communicates nothing to
the client regarding the status of the case.” Garrett, 427 Md. at 224 (citing Attorney
Grievance Comm’n v. Fox, 417 Md. 504, 532 (2010)). Additionally, a lawyer violates
MLRPC 1.4(b) by failing to explain, to the extent reasonably necessary, that he or she does
not intend to appear as counsel. See, e.g., Attorney Grievance Comm’n v. Stinson, 428 Md.
147, 179 (2012) (“[Attorney] failed to explain, to the extent reasonably necessary to permit
the client to make informed decisions, that she did not intend to appear as counsel of record
in the divorce/annulment proceeding.”).
The hearing judge’s conclusions that Ms. Kirwan violated MLRPC 1.4(a)(2); (a)(3);
and (b) are supported by clear and convincing evidence in the record. Ms. Kirwan
responded to only one of Ms. S.’s numerous attempts to contact her from December 2013
to September 2014—the email on June 10, 2014, when Ms. Kirwan indicated she would
call Ms. S. but then failed to do so. Ms. Kirwan did not provide Ms. S. with an update or
any other information related to T.N.’s case as requested. We agree with the hearing
judge’s conclusions that Ms. Kirwan violated MLRPC 1.4(a)(2) and (a)(3) by failing to
8
keep her client reasonably informed and by failing to promptly reply to information
requests.
As to MLRPC 1.4(b), the hearing judge concluded Ms. Kirwan failed to provide
information reasonably necessary to permit her client to make informed decisions. In one
of Ms. S.’s phone messages, Ms. S. asked Ms. Kirwan whether she still wanted to handle
T.N.’s case or whether Ms. S. should hire another attorney, but Ms. Kirwan did not respond.
We agree with the hearing judge’s conclusion that Ms. Kirwan’s conduct prevented her
client from making an informed decision, which is a violation of MLRPC 1.4(b).
MLRPC 1.16(d) (Declining or Terminating Representation)
MLRPC 1.16(d) requires a lawyer protect his or her client’s interest at the
conclusion of the representation. The Rule states:
Upon termination of representation, a lawyer shall take steps
to the extent reasonably practicable to protect a client's
interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and
refunding any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers relating
to the client to the extent permitted by other law.
MLRPC 1.16(d). A lawyer’s failure to communicate with his or her client and to pursue
the client’s case constitutes abandonment of the representation in violation of MLRPC
1.16(d). See Attorney Grievance Comm’n v. Park, 427 Md. 180, 193 (2012) (stating a
lawyer violates 1.16(d) when he or she terminates the representation of a client “by
abandoning the matter before completion, failing to respond to [the client’s] messages,
failing to provide sufficient contact information, and failing to inform [the client] of his
9
intent to move (or close) his office.”). Additionally, a lawyer violates MLRPC 1.16(d) by
failing to provide a client with his or her file after the conclusion of the representation. See
Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 191 (2015) (“Failure to return
unearned fees and papers violates MLRPC 1.16.”).
The hearing judge found that Ms. Kirwan violated MLRPC 1.16(d). Ms. Kirwan
did not respond to Ms. S.’s inquiries regarding whether she was still handling T.N.’s case,
which demonstrates a failure to give reasonable notice. Ms. Kirwan also did not respond
to T.N.’s new attorney, Ms. Collins. Ms. Collins requested Ms. Kirwan’s malpractice
insurance information, to pursue a legal malpractice claim on T.N.’s behalf, and T.N.’s
case file. At the hearing, Ms. Kirwan argued that she did not provide T.N.’s case file to
Ms. Collins because she did not have authorization from Ms. S. However, the hearing
judge found that this did not excuse Ms. Kirwan’s failure to respond. The hearing judge
found that Ms. Kirwan could have provided her malpractice information without breaching
client confidentiality and facilitated the signing of the necessary authorization forms to
provide any confidential information. We agree. Ms. Kirwan violated MLRPC 1.16(d) by
failing to take steps to protect T.N.’s interests.
MLRPC 8.1(b) (Bar Admission & Disciplinary Matters)
In relevant part, MLRPC 8.1(b) states, “[A] lawyer . . . in connection with a
disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for
information from [a] . . . disciplinary authority, except that this Rule does not require
disclosure of information otherwise protected by Rule 1.6.” A lawyer clearly violates
10
MLRPC 8.1(b) by failing to respond to Bar Counsel's inquiries with respect to a
disciplinary matter investigation. Park, 427 Md. at 193-94; Hamilton, 444 Md. at 192.
The hearing judge concluded that Ms. Kirwan violated MLRPC 8.1(b). We agree.
The Commission sent three letters to Ms. Kirwan requesting a response to Ms. S.’s
complaint, two of which referenced MLRPC 8.1(b): a lawyer shall not “knowingly fail to
respond to a lawful demand for information from a disciplinary authority.” Ms. Kirwan
acknowledged receipt of these letters. Ms. Kirwan also spoke with a Commission
investigator, who informed Ms. Kirwan that she was required to respond to the
Commission’s letters. Yet Ms. Kirwan failed to respond to all four of the Commission’s
demands for information regarding Ms. S.’s complaint. Ms. Kirwan’s actions were a
violation of MLRPC 8.1(b).
MLRPC 8.4(a) & (d) (Misconduct)
MLRPC 8.4(a) and (d) state, “It is professional misconduct for a lawyer to (a) violate
or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another; and (d) engage in
conduct that is prejudicial to the administration of justice.” Regarding MLRPC 8.4(d), we
have noted that:
[An attorney’s] failure to promptly, completely and truthfully
respond to Bar Counsel’s requests for information, to keep his
client advised of the status of the representation and to
diligently represent the complainant constitutes conduct which
tends to bring the legal profession into disrepute and is
therefore prejudicial to the administration of justice.
11
Brown, 426 Md. at 324-25 (quoting Attorney Grievance Comm’n v. Rose, 391 Md. 101,
111 (2006)).
The hearing judge’s conclusion that Ms. Kirwan violated MLRPC 8.4(a) is based
upon her violations of MLRPC 1.1, 1.3, 1.4(a)(2)-(3), 1.4(b), 1.16, and 8.1(b). This Court
has stated that “the same professional misconduct can overlap to implicate violation of
various provisions of the [MLRPC].” Attorney Grievance Comm’n v. Harris, 371 Md.
510, 549 (2002). Therefore, “where an attorney has violated one rule of the [MLRPC],
that attorney has often violated many, based on the combined whole of the attorney's
misconduct.” Id. By virtue of violating MLRPC 1.1, 1.3, 1.4(a)(2)-(3), 1.4(b), 1.16, and
8.1(b), Ms. Kirwan also violated MLRPC 8.4(a).
The hearing judge also found that Ms. Kirwan violated MLRPC 8.4(d). Ms.
Kirwan’s failure to pursue T.N.’s negligence claim and to provide any information to Ms.
S. was prejudicial to T.N.’s case. As a result, the hearing judge concluded that this was
prejudicial to the administration of justice. Additionally, Ms. Kirwan’s failure to respond
to Ms. S.’s complaint through the lawful requests of the Commission also demonstrate a
violation of MLRPC 8.4(d). We agree that Ms. Kirwan’s actions violated MLRPC 8.4(a)
and (d).
B. Aggravating and Mitigating Factors
Aggravating Factors
The hearing judge found clear and convincing evidence that five aggravating factors
were present: pattern of misconduct, multiple offenses, bad faith obstruction of the
disciplinary proceeding by intentionally failing to comply with rules or orders of the
12
disciplinary agency, substantial experience in the practice of law and indifference to
making restitution.4 We agree with the hearing judge’s conclusions, which are summarized
as follows.
The hearing judge found that Ms. Kirwan’s failure to respond to the Commission
demonstrated a pattern of misconduct and multiple offenses. Ms. Kirwan received a
warning from the Commission in a letter dated September 30, 2014, for failure to respond
to Bar Counsel in relation to an unrelated complaint filed earlier in 2014. The letter stated
that Ms. Kirwan’s failure to respond to the Commission was a violation of MLRPC 8.1(b)
even though the complaint was dismissed. This letter was sent two weeks prior to the
Commission’s letter regarding Ms. S.’s case. As a result, the hearing judge concluded that
Ms. Kirwan’s actions supported a finding of a pattern of misconduct and multiple offenses.
The hearing judge concluded that Ms. Kirwan’s intentional failure to comply with
rules or orders of the disciplinary agency supported a finding of bad faith obstruction of
disciplinary proceedings. The hearing judge found that Ms. Kirwan intentionally failed to
4
This Court has identified potential aggravating factors as:
(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; and (j) indifference to making restitution.
Moore, 447 Md. at 271 n.4 (quoting Attorney Grievance Comm’n v. Bleecker, 414 Md.
147, 176-77 (2010)).
13
respond to the Commission since she spoke with the Commission’s investigator on the
phone and stated she would respond within one week, though she failed to do so. The
hearing judge found that Ms. Kirwan’s failure to respond to the numerous letters coupled
with the phone call by the Commission supported a finding that Ms. Kirwan intentionally
failed to comply with the rules of the disciplinary agency.
Next, the hearing judge found that Ms. Kirwan had substantial experience in the
practice of law and was familiar with the MLRPC. The hearing judge also noted that Ms.
Kirwan served as a Peer Review panelist in the disciplinary system.5
Finally, the hearing judge concluded that Ms. Kirwan was indifferent to making
restitution. This finding was supported by Ms. Kirwan’s failure to respond to requests for
information from Ms. Collins, the attorney retained to pursue the legal malpractice claim.
The hearing judge concluded that the only recourse Ms. S. and T.N. had after Ms. Kirwan
failed to file the negligence claim against the Baltimore City Public Schools was a legal
malpractice suit against Ms. Kirwan. Ms. Kirwan’s failure to cooperate was a hindrance
to the pursuit of the malpractice claim and demonstrated that she was indifferent to Ms. S.
and T.N.’s recovery of just compensation for T.N.’s injury.
5
The purpose of a Peer Review Panel is outlined in Maryland Rule 16-743(a), and is briefly
summarized as follows. When the Commission receives an attorney disciplinary
complaint, a Peer Review Panel considers the Statement of Charges and all relevant
information offered by Bar Counsel and the attorney. After the consideration of
information presented, the Panel will determine whether there is a substantial basis and
reason to believe that the attorney committed professional misconduct. If so, the Panel will
determine whether a Petition for Disciplinary or Remedial Action should be filed or
whether another disposition is appropriate.
14
Mitigating Factors
The hearing judge did not find any mitigating factors6 and Ms. Kirwan did not offer
any evidence for this Court to reach a different conclusion. Therefore, we agree with the
hearing judge that there are no mitigating factors.
Sanction
In this case, our primary task is to determine Ms. Kirwan’s sanction since the facts
and violations are undisputed. As we have previously stated, the purpose of a disciplinary
proceeding is to protect the public and to ensure the integrity of the bar. Brown, 426 Md.
at 325. The purpose of sanctioning the erring attorney is not to punish him or her, but
rather to deter future offenses. Id. The appropriate sanction depends on the facts and
circumstances in each case as well as the nature of the ethical duties violated in light of any
aggravating or mitigating circumstances, the attorney’s prior grievance history, and our
past cases involving attorney discipline when imposing sanctions. Id.6
This Court has identified potential mitigating factors as:
[a] absence of a prior disciplinary record; [b] absence of a
dishonest or selfish motive; [c] personal or emotional
problems; [d] timely good faith efforts to make restitution or to
rectify consequences of misconduct; [e] full and free disclosure
to disciplinary board or cooperative attitude toward
proceedings; [f] inexperience in the practice of law; [g]
character or reputation; [h] physical or mental disability or
impairment; [i] delay in disciplinary proceedings; [j] interim
rehabilitation; [k] imposition of other penalties or sanctions; [l]
remorse; and [m] remoteness of prior offenses.
Moore, 447 Md. at 270 n.3 (quoting Bleecker, 414 Md. at 178).
15
Bar Counsel recommended an indefinite suspension without specifying a minimum
period of suspension. At oral argument, Ms. Kirwan asked us to consider a reprimand and
in support of her position cited the sanction imposed in Attorney Grievance Comm’n v.
Tolar, 357 Md. 569, 585 (2000).
We agree with Bar Counsel that the appropriate sanction is indefinite suspension.
Our decisions in prior attorney discipline cases support suspending Ms. Kirwan
indefinitely, with the right to apply for reinstatement. In cases similar to Ms. Kirwan’s,
where the attorney’s disciplinary violations do not involve dishonesty, the sanction has
often been indefinite suspension. See Attorney Grievance Comm’n v. Green, 441 Md. 80,
101-102 (2014) (collecting cases). We do not believe that Tolar is similar to Ms. Kirwan’s
case. In Tolar, a reprimand was the appropriate sanction because the attorney was
remorseful—a mitigating factor. Tolar, 357 Md. at 585. However, unlike Tolar, in this
case there was neither a finding nor any basis for mitigating Ms. Kirwan’s misconduct. See
Attorney Grievance Comm’n v. Kovacic, 389 Md. 233, 240 (2005). Indefinite suspension
ensures that Ms. Kirwan is not permitted to practice law until this Court is satisfied that
she is able to do so in a manner that is consistent with the MLRPC. We have reiterated
that indefinite suspension is not permanent, so Ms. Kirwan may apply for reinstatement
under Maryland Rule 19-752. However, we decline to set a minimum length for this
indefinite suspension because there is nothing in the record that would allow this Court to
“divine an appropriate minimum ‘sit-out’ period.” Green, 441 Md. at 102; Moore, 447
Md. at 274-75.
16
Conclusion
Ms. Kirwan violated MLRPC 1.1, 1.3, 1.4(a)(2)-(3) and (b), 1.16(d), 8.1(b), and
8.4(a) and (d). For these violations, we suspend Ms. Kirwan indefinitely from the practice
of law in Maryland.
IT IS SO ORDERED. RESPONDENT SHALL PAY
ALL COSTS AS TAXED BY THE CLERK OF THE
COURT, INCLUDING THE COST OF ALL
TRANSCRIPTS, PURSUANT TO MARYLAND
RULE 19-709, FOR WHICH JUDGMENT IS
ENTERED IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION OF MARYLAND
AGAINST SUSAN MYRA GELLER KIRWAN.
17