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Attorney Grievance Commission of Maryland v. Kirwan

Court of Appeals of Maryland

November 21, 2016

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
SUSAN MYRA GELLER KIRWAN

          Argued: October 11, 2016

         Circuit Court for Baltimore City Case No. 24-C-15-005773 AG

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          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 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 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 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 respond to Bar Counsel's lawful demand for information in ...


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