BBO summary: Oct. 15.

Byline: Mass. Lawyers Weekly Staff

Admonition No. 18-24

In 2015, the respondent agreed to represent a family member pro bono in a criminal matter pending in district court. The matter involved allegations that the family member had tampered with evidence during the course of an ongoing police investigation. After filing his appearance in the matter, the respondent filed a motion for discovery from the Commonwealth as well as a motion to dismiss the charges against his relative. In the motion to dismiss, the respondent argued that the Commonwealth would be unable to prove that any evidence had been tampered with.

The respondent should not have agreed to represent his relative due to a potential conflict of interest. Specifically, his relative was alleged to have tampered with evidence using the respondent's home internet network. For this reason, the respondent was personally connected to the alleged crime and potentially could have been charged as his relative's accomplice (along with any others having access to his network). Although the respondent disclosed this potential conflict to his relative and obtained his consent to the representation, this consent was not confirmed in writing. Moreover, and in any event, there was a significant risk that the representation would be materially limited by the respondent's personal interest in the legal proceeding and related events.

The respondent acknowledged his personal connection to the underlying events to the Court. Moreover, the relative was satisfied with the representation and did not complain of the conflict. In either event, shortly after filing the motion to dismiss, the respondent voluntarily withdrew from the matter due to the foregoing conflict of interest concerns. Successor counsel thereafter filed an amended motion to dismiss, which was allowed by the court.

By representing a client in circumstances where there was a significant risk that the representation would be materially limited by his own personal interests in the matter, the respondent violated Mass. R. Prof. 1.7(a)(2).

The respondent has been a member of the Massachusetts bar since 1985 and has received no prior discipline. He accordingly received an admonition for his misconduct.

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Admonition No. 18-25

The respondent received an admonition for unprofessional behavior toward a clerk magistrate.

In 2015, the respondent became agitated at the length of time it was taking for his client's arraignment. At side bar, the clerk magistrate advised the respondent the arraignment could not take place until an interpreter was present. As the respondent walked away, he muttered a profanity directed at the clerk magistrate.

As a result of the respondent's profane remark and the ensuing interaction with the clerk magistrate, the arraignment had to be further delayed and moved to another session to be heard by a judge.

The respondent's verbal abuse of the clerk magistrate was conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d) and conduct intended to disrupt a tribunal, in violation of Mass. R. Prof. C. 3.5(d).

The respondent was admitted to the Massachusetts bar on January 1, 1994, and has no prior disciplinary history. The respondent received an admonition for his conduct.

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Admonition No. 18-26

In March 2017, the respondent commenced to represent a client in a pending post-foreclosure summary process action. The parties agreed that the respondent would defend the summary process case for a flat fee of $7,500.00 plus a one-third contingency if there was any cash settlement or payment of damages. The client paid the flat fee of $7,500 in installments.

No written fee agreement was executed for either the flat fee portion of the case or the contingent fee portion. The respondent had experience representing hold-over tenants after foreclosure and typically had written fee agreements.

The respondent diligently represented the client in the summary process case. Ultimately, the case settled with a cash for keys agreement at $10,000.00. Upon receipt of the $10,000, the respondent prepared a settlement sheet showing receipt of the $10,000.00 and a fee of one-third. The client signed the settlement sheet and received his two-thirds.

On June 18, 2018, the client sent a written protest to the respondent, received on June 21, 2018. The client complained that he should not have to pay both a flat fee and a contingent fee for the same case. The respondent reviewed the file and found no written fee agreement. He then immediately agreed to refund the one-third fee in total. On July 16, 2018, the client signed a revised settlement sheet deleting the contingent fee. The client then received the refund.

The respondent's failure to reduce the fee agreement to writing violated both Mass. R. Prof. C. 1.5(b)(1) and 1.5(c).

The respondent was admitted in 1985 and has no prior discipline. The respondent received an admonition for his misconduct.

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The following summaries were compiled by the Board of Bar Overseers based on the record of proceedings before the board.

BBO Public Reprimand No. 2018-11

In Re: Charles S. Kirwan

201 Wayland Ave., Second Floor

Providence, RI 02906

Order (public...