                                                                               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.
                                               -1-
        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.
                                               -2-
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 * * *.”

                                                 -3-
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.”
                                               -4-
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.




                                                 -5-
Entered as an Order of this Court this 30th day of May 2019.


                                     By Order,




                                     ____________/s/_______________
                                     Clerk




                                      -6-
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)
