In the Matter of Charles S. Kirwan.
Petitioner: David D. Curtin, Esq. Chief Disciplinary Counsel
Respondent: Charles S. Kirwan, Pro Se
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia,
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.
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. A copy of that Order was forwarded by the
Board of Bar Overseers to Disciplinary Counsel on October 9,
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.
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.The respondent submitted a reply to our
order and requested that we decline to impose public
discipline in this matter.
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.
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.
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 they
rejected a settlement offer; if respondent terminated the
representation; or if the clients discharged respondent, even
if for cause.
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.
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; 1.2; 1.3; 1.5; and 3.4. Additionally, the petition
alleged that respondent had violated Massachusetts Rule
8.4(h),  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.
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.
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