Submitted January 29, 2019
Certified Report by the Board of Professional Conduct of the
Supreme Court, No. 2017-047.
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
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
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.
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
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
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
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. ...