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Disciplinary Counsel v. Shimko

Supreme Court of Ohio

July 18, 2019

Disciplinary Counsel
v.
Shimko.

          Submitted January 29, 2019

          On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2017-047.

          PER CURIAM.

         {¶ 1} Respondent, Timothy Andrew Shimko, of Westlake, Ohio, Attorney Registration No. 0006736, was admitted to the practice of law in Ohio in 1976.

         {¶ 2} In June 2009, Shimko was censured by the Supreme Court of Arizona for representing clients with potential conflicts of interest and entering into a business relationship with those clients without obtaining their informed consent and for charging clearly excessive fees by billing a law clerk's work at lawyer rates. Six months later, we imposed reciprocal discipline for that misconduct in the form of a public reprimand. Disciplinary Counsel v. Shimko, 124 Ohio St.3d 1201, 2009-Ohio-6879, 918 N.E.2d 1007. In December 2012, we imposed a fully stayed one-year suspension on Shimko for falsely accusing a trial judge of dishonesty and claiming that the judge harbored improper motives for his rulings. Disciplinary Counsel v. Shimko, 134 Ohio St.3d 544, 2012-Ohio-5694, 983 N.E.2d 1300.

         {¶ 3} In a complaint certified to the Board of Professional Conduct on October 5, 2017, relator, disciplinary counsel, alleged that Shimko violated four professional-conduct rules by charging a clearly excessive fee, threatening to disclose confidential information to compel payment of that fee, and then disclosing that information to the potential detriment of his former client.

         {¶ 4} After conducting a hearing, a three-member panel of the board issued a report finding that Shimko had engaged in the charged misconduct and recommending that he be suspended from the practice of law for two years with the second year stayed on the condition that he engage in no further misconduct. The board accepted the panel's findings of fact and misconduct. Finding that Shimko had threatened to disclose and actually disclosed confidential client information in an effort to collect an excessive legal fee, failed to acknowledge the wrongful nature of his misconduct, and failed to show any remorse in this-his third disciplinary case in just nine years-the board recommends that we suspend Shimko for two years with no stay.

         {¶ 5} Shimko has raised seven objections to the board's findings and recommendation. He contends that the panel inaccurately described and failed to disclose to the board critical evidence and relevant law that undermines the panel's findings of fact and misconduct and supports his position that his disclosure of client information was permitted by the Rules of Professional Conduct and our precedent. Shimko also argues that he should be permitted to charge a client for the preparation of his retainer agreement when the client subsequently used his services to commit fraud. In addition, Shimko argues that his misconduct does not warrant a two-year suspension and that the panel erroneously denied his motion for leave to file a motion for summary judgment.

         {¶ 6} Based upon our independent review of the record, we find that Shimko's objections are without merit. Because the board's findings of fact and misconduct are supported by clear and convincing evidence, we accept them. We find, however, that an indefinite suspension is the appropriate sanction in this case.

         Background

         {¶ 7} In July 2015, fire destroyed a house that Richard Berris had been building for approximately 17 years. Berris, an engineer by trade, did not reside in the house, but he stored instruments, data, and books in its basement. At the time of the fire, Berris had two insurance policies. The first was a Nationwide commercial-property policy that covered his residence but provided only limited coverage for off-premises equipment. At his examination under oath ("EUO"), Berris acknowledged that he had filed a $500, 000 claim under that policy for "business related items" destroyed in the fire but that Nationwide had offered him only $10, 000 on that claim. The second policy was an Allstate homeowner's policy that covered the fire-damaged premises but excluded coverage for business property. Berris filed a fire-related insurance claim with Allstate, which then arranged to examine Berris under oath in October 2015.

         The Board's Findings of Fact

         {¶ 8} On October 8, 2015, Berris telephoned Shimko seeking his representation at the EUO. During that phone call, there was no discussion of Shimko representing Berris beyond the EUO.

         {¶ 9} Shimko sent Berris a letter stating that he would be happy to prepare him for, and represent him at, the EUO. Shimko stated that he would like to meet with Berris on October 20 and that his standard rate was $385 an hour. In response, Berris sent Shimko an e-mail in which he asked Shimko to conduct an intake interview at no charge, requested a written copy of Shimko's fee and services contract, and asked whether Shimko would be handling the matter personally or assigning it to another attorney in his firm.

         {¶ 10} On October 18, Berris sent Shimko another e-mail stating that he had rescheduled the EUO for mid-November, because he had not heard from Shimko. The following day, Shimko responded by e-mail, stating:

It is my recollection that we spoke at some length on the 8th of October, for which I have not and will not charge you. * * * I was expecting to receive and review your insurance policies before I prepared you. For that work, I quoted you an hourly rate of $385.00/hr.
Up to this point in time, you have requested only that I prepare you for and accompany you to your EUO. For those services, I charge $385.00/hr. I anticipate that it will take me @ 11/2 hrs. to review your policies. From what you told me, there are at least two policies to read and analyze. I anticipate that it will take 11/2 hrs. to prepare you for the EUO. My experience tells me that your examination will last 2-3 hours. Unless your deposition runs longer, and if those are all the services you ask me to perform, I would anticipate sending you a bill for somewhere in the range of $2, 300.

(Emphasis added.)

         {¶ 11} In that e-mail, Shimko acknowledged that Berris had not spoken to him about expanding the scope of his representation but also gave him a detailed explanation of the terms under which he would agree to handle the entire insurance claim.

         {¶ 12} Shimko appeared and represented Berris at his EUO on November 12, 2015. The next day, he sent Berris an e-mail with a $4, 350 bill for the services he had provided. At the conclusion of his message, he stated, "If you require any further services in the future, it would be my privilege to represent you."

         {¶ 13} Displeased by the amount of the bill, which was nearly double the original estimate, Berris wrote a letter to Shimko on December 11, 2015, stating that he was satisfied with Shimko's legal services, but not his billing practices. He explained that there were "[unexpected problems" with the bill, including a charge of $154 for the initial telephone conference, despite Shimko's representation that there would be no charge for that call, a $539 charge for Shimko's October 19 e-mail to Berris, and a previously undisclosed interest rate of 1.5 percent per month for fees not paid within 30 days. Berris stated that he would pay $3, 300 in $500 monthly installments "without penalty or interest." He enclosed the first check for $500 and continued to send a check each month until the entire $3, 300 had been sent. Shimko rejected Berris's proposed terms and threatened to place a lien on Berris's property and to foreclose on the lien if necessary.

         {¶ 14} In January 2016, Shimko filed suit against Berris in the Cuyahoga County Court of Common Pleas to collect the remainder of his fees. On July 14, 2016, Berris's counsel wrote to Shimko and asked him to dismiss his complaint with prejudice. In a July 18 letter to Berris's counsel, Shimko responded by threatening to disclose confidential information that Berris had purportedly conveyed to him during the underlying legal representation. In that letter, Shimko claimed that while preparing for the EUO, Berris had told him that he had "been conducting a substantial amount of business, doing significant development work and testing at the premises before" the fire. Shimko alleged that after he advised Berris that his insurance claims would be denied if he had used the premises for business purposes, Berris made false statements at his EUO to the effect that he had not worked or otherwise conducted business on the premises before they were damaged by the fire.

         {¶ 15} Shimko further asserted to Berris's counsel that those facts were relevant to explain why he spent more time on Berris's case than originally estimated and that the facts were therefore not protected by the attorney-client privilege. He concluded his letter by stating:

I suspect that my motion for summary judgment, a public record, which will not be long in coming, may have an impact beyond this litigation. Perhaps, Mr. Carr, it may have implications in your financial future, as well. I am giving your client his last break, and he would be wise to take it. After I file the motion for summary judgment, I cannot unwring [sic] that bell. ...

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