In the Matter of Charles S. Kirwan

Supreme Court
In the Matter of Charles S. Kirwan. No. 2018-323-M.P.
ORDER
This matter is before the Court pursuant to a petition for reciprocal discipline filed by this
Court’s Disciplinary Counsel in accordance with Article III, Rule 14 of the Supreme Court Rules
of Disciplinary Procedure for Attorneys. The respondent, Charles S. Kirwan, was admitted to the
practice of law in this state on June 21, 1989. The respondent is also admitted to the practice of
law in the Commonwealth of Massachusetts.
On October 4, 2018, the Board of Bar Overseers of the Supreme Judicial Court of the
Commonwealth of Massachusetts issued an Order of Public Reprimand against respondent after
concluding that he had violated the Massachusetts Rules of Professional Conduct while
representing two clients in a civil action filed in the United States District Court for the District of
Massachusetts.1 A copy of that Order was forwarded by the Board of Bar Overseers to
Disciplinary Counsel on October 9, 2018.
Article III, Rule 14(a), entitled “Reciprocal Discipline,” provides, in pertinent part: “Upon
notification from any source that a lawyer within the jurisdiction of the [Disciplinary] Board has
been disciplined in another jurisdiction, [Disciplinary] Counsel shall obtain a certified copy of the
disciplinary order and file it with the court.” On November 26, 2018, Disciplinary Counsel filed
a certified copy of the order of discipline with this Court along with his request that we impose
reciprocal discipline.
1
The Massachusetts Rules of Professional Conduct are substantially similar, but not identical to,
Rhode Island’s version of those rules. As the conduct giving rise to these proceedings occurred in
Massachusetts, respondent’s conduct was subject to the Massachusetts rules.
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On December 18, 2018, we entered an order directing respondent to inform this Court
within thirty days of any claim he may have that the imposition of reciprocal discipline would be
unwarranted. Our order further informed respondent that his failure to show cause why identical
discipline should not be imposed would result in the entry of an order publicly censuring him.2
The respondent submitted a reply to our order and requested that we decline to impose public
discipline in this matter.
The respondent appeared before this Court at its conference on May 16, 2019, without
counsel, to present his claim why identical reciprocal discipline should not be imposed.
Disciplinary Counsel also appeared in support of his petition that reciprocal discipline is
warranted. Having heard the representations of respondent and Disciplinary Counsel, and having
reviewed the record of proceedings before the Board of Bar Overseers, we conclude that
respondent has failed to show cause, and that the imposition of reciprocal discipline is warranted
in this matter.
The facts giving rise to the Massachusetts Order of Public Reprimand are fully set forth in
a stipulation entered into between respondent and the Board of Bar Overseers, and related
attachments. The relevant facts are as follows.
In January 2014, respondent agreed to represent two brothers pursuing employment
discrimination and wage and hour claims against a former employer. The clients executed
contingent fee agreements that provided for payment of a one-third contingent fee upon any
recovery for damages and reimbursement for costs regardless of whether or not a recovery
occurred. The agreement also provided that respondent would charge the clients an hourly fee if
2
Rhode Island does not have a disciplinary sanction of a “Public Reprimand.” The functional
equivalent of a public reprimand for attorneys is a public censure as provided by Article III, Rule
3 of the Supreme Court Rules of Disciplinary Procedure for Attorneys.
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they rejected a settlement offer; if respondent terminated the representation; or if the clients
discharged respondent, even if for cause.
In September 2014, respondent filed a civil action on behalf of the clients in the United
States District Court for the District of Massachusetts. The respondent failed to comply with a
discovery order to file answers to interrogatories, and the defendants in that case filed a motion to
dismiss the clients’ claims and for sanctions. The respondent failed to timely oppose the motion
to dismiss and failed to appear at the scheduled court hearing on the motion. The court dismissed
the clients’ case and imposed a sanction in the amount of $3,000. The respondent filed a notice of
appeal with the United States Court of Appeals for the First Circuit and entered an appearance on
behalf of the clients. However, despite having been granted over ten extensions of time in which
to file a brief, he failed to do so. The appeal was dismissed for failure to file a timely brief.
The Office of the Bar Counsel filed a petition for discipline before the Board of Bar
Overseers alleging the above-noted facts and asserting that, through his conduct, respondent had
violated the following Massachusetts Rules of Professional Conduct: Rules 1.1;3 1.2;4 1.3;5 1.5;6
3
Mass. R. Prof. C. 1.1, entitled “Competence,” provides: “A lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the representation.”
4
Mass. R. Prof. C. 1.2, entitled “Scope of Representation and Allocation of Authority Between
Client and Lawyer,” provides, in pertinent part: “(a) A lawyer shall seek the lawful objectives of
his or her client through reasonably available means permitted by law and these Rules.”
5
Mass. R. Prof. C. 1.3, entitled “Diligence,” provides: “A lawyer shall act with reasonable
diligence and promptness in representing a client. The lawyer should represent a client zealously
within the bounds of the law.”
6
Mass. R. Prof. C. 1.5, entitled “Fees,” provides, in pertinent part: “(a) A lawyer shall not enter
into an agreement for, charge, or collect an illegal or clearly excessive fee * * *.”
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and 3.4.7 Additionally, the petition alleged that respondent had violated Massachusetts Rule
8.4(h),8 for which there is no counterpart within the Rhode Island Rules of Professional Conduct.
On August 14, 2018, respondent entered a stipulation admitting the above-noted facts, admitting
that his conduct violated the rules as charged, and acknowledging that he would receive a public
reprimand for that misconduct.
The stipulation entered into between respondent and the Office of the Bar Counsel also
recognizes several mitigating factors relevant to the severity of the disciplinary sanction agreed
upon by the parties. Prior to the filing of any disciplinary complaint, respondent agreed to
compensate the clients, from his personal resources, for any loss they may have incurred due to
his negligent representation. The respondent has paid the clients $89,200. It was further stipulated
by the parties that respondent never received an unreasonable fee from the clients and never sought
to enforce any of the provisions of the parties’ fee agreement. The respondent has no prior
disciplinary history and fully acknowledged responsibility for the harm caused to his clients.
Additionally, there were extenuating personal and medical issues which mitigate, but do not
excuse, his conduct.
Despite having entered into a stipulation in Massachusetts admitting the facts,
acknowledging his rule violations, and agreeing to the imposition of public discipline, respondent
seeks to disavow portions of his stipulation and asks this Court to adopt a less severe sanction. We
conclude, however, that respondent has failed to persuade us that the imposition of reciprocal
7
Mass. R. Prof. C. 3.4, entitled “Fairness to Opposing Party and Counsel,” provides, in pertinent
part: “A lawyer shall not: * * * (c) knowingly disobey an obligation under the Rules of a tribunal
except for an open refusal based on an assertion that no valid obligation exists[.]”
8
Mass. R. Prof. C. 8.4, entitled “Misconduct,” provides, in pertinent part: “It is professional
misconduct for a lawyer to: * * * (h) engage in any other conduct that adversely reflects on his or
her fitness to practice law.”
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discipline is unwarranted. Rule 14(d) of the Rules of Disciplinary Procedure provides, in relevant
part:
“[T]his Court shall impose the identical discipline unless Counsel or
the respondent-attorney demonstrates, or this Court finds, that upon
the face of the record upon which the discipline is predicated, it clearly
appears:
“(1) that the procedure was so lacking in notice or
opportunity to be heard as to constitute a deprivation of
due process; or
“(2) that there was such an infirmity of proof establishing
the misconduct as to give rise to the clear conviction that
this Court could not consistently with its duty accept as
final the conclusion on that subject; or
“(3) that the imposition of the same discipline would
result in grave injustice; or
“(4) that the misconduct established has been held to
warrant substantially different discipline in this State.”
We are of the opinion that the stipulation entered into by the respondent, an experienced
litigator with over thirty years of experience, is dispositive of any claim he may have that reciprocal
discipline is unwarranted. We note that among the provisions contained in that stipulation is the
following: “[I]n consideration of this agreement, each party has forgone other allegations or
defenses and submission of evidence on the merits and disposition which might have been
advanced had the case been litigated.” The respondent received the benefit of his bargain in the
Massachusetts proceeding, and he is bound by his stipulation. He cannot now disavow that
stipulation before this Court.
Accordingly, we accept the recommendation of Disciplinary Counsel that we impose
identical reciprocal discipline, and the respondent is hereby publicly censured.
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Entered as an Order of this Court this 30th day of May 2019.
By Order,
____________/s/_______________
Clerk
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
ORDER COVER SHEET
Title of Case In the Matter of Charles S. Kirwan.
No. 2018-323-M.P.
Case Number
May 30, 2019
Date Order Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
N/A
Source of Appeal
N/A
Judicial Officer From Lower Court
For Petitioner:
David D. Curtin, Esq.
Attorney(s) on Appeal
Chief Disciplinary Counsel
For Respondent:
Charles S. Kirwan, Pro Se
SU‐CMS‐02B (revised November 2016)