Attorney Grievance Commission v. Kirwan

Getty, J. 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 ⁴⁵⁴ 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) (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 ⁴⁵⁵ 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. 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 ⁴⁵⁶ 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.

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 ⁴⁵⁷ 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 13, 2014, indicating it did not receive a response and requesting a response by December 1, 2014. Ms. Kirwan received the letter 2 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. ⁴⁵⁸ 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)(l). 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 , 46 A.3d 1169 (2012) (quoting Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 , 44 A.3d 344 (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 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. ⁴⁵⁹ 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 , 135 A.3d 390 (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 , 46 A.3d 1169 (citing Attorney Grievance Comm’n v. Gisriel, 409 Md. 331, 371 , 974 A.2d 331 (2009)). The hearing judge concluded that Ms. Kir-wan’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.) (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 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 , 102 A.3d 344 (2014).

We have stated, “It is beyond cavil that an attorney violates MLRPC 1.4 when he or she ignores ⁴⁶⁰ client requests for information and communicates nothing to the client regarding the status of the case.” Garrett, 427 Md. at 224 , 46 A.3d 1169 (citing Attorney Grievance Comm’n v. Fox, 417 Md. 504, 532 , 11 A.3d 762 (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 , 50 A.3d 1222 (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 divoree/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 ease 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 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: ⁴⁶¹ 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 , 46 A.3d 1163 (2012) (stating a lawyer violates 1.16(d) when