Thursday, July 18, 2019

"Pure Greed, And A Hardwired, Vindictive Personality"

The Ohio Supreme Court has indefinitely suspended an attorney

Given the unreasonable and vindictive nature of Shimko’s conduct in this, his third disciplinary matter, we overrule his sixth objection and find that an indefinite suspension—with the attendant requirement that Shimko petition this court for reinstatement and establish by clear and convincing evidence that he possesses the requisite mental, educational, and moral qualifications and is a proper person to be readmitted to the practice of law in Ohio—is necessary and appropriate to protect the public and to deter Shimko from engaging in further unethical behavior.

Dan Trevas summarizes the decision 

The Ohio Supreme Court today indefinitely suspended a Westlake attorney for threatening to reveal and actually disclosing confidential client information in an effort to collect a clearly excessive legal fee.

In a 4-3 per curiam opinion, the Supreme Court indefinitely suspended Timothy A. Shimko, who received his third disciplinary sanction in nine years. The Court determined that Shimko failed to acknowledge the wrongful nature of his actions, argued that he acted appropriately, and showed no remorse for his behavior. The sanction is greater than the two-year suspension recommended to the Court by the Board of Professional Conduct.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Melody J. Stewart joined the opinion. Justice Judith L. French dissented, stating she would suspend Shimko for two years. She was joined by Fifth District Court of Appeals Judge Earle E. Wise, sitting for Justice Michael P. Donnelly.

Representation for Insurance Claims Leads to Conflict

Shimko was censured by the Arizona Supreme Court in 2009 for violating several rules of professional conduct, including charging clearly excessive fees, and the Ohio Supreme Court issued a public reprimand for his acts in Arizona. In 2012, the Ohio Supreme Court imposed a fully stayed one-year suspension on Shimko for falsely accusing a trial judge of dishonesty.

The complaint at issue today was submitted by the Office of Disciplinary Counsel in 2017 based on Shimko’s representation of Richard Berris, whose house was destroyed in a 2015 fire.

Berris, an engineer by trade, did not reside in the house that burned, but stored instruments, data, and books in the basement. He had two insurance policies at the time of the fire, including a Nationwide commercial-property policy that covered the home he lived in with limited coverage for off-premises equipment. Berris filed a $500,000 claim with Nationwide for “business-related items” destroyed by the fire, but the insurer only offered him $10,000.

Berris’ second policy, which was with Allstate, covered fire damage for the house that burned, but excluded coverage for business property. When he filed a claim with Allstate, the insurer arranged for an “examination under oath” (EUO). Weeks before the EUO, Berris contacted Shimko by phone to seek his representation. The two discussed only representation at the EUO.

Shimko sent Berris a letter stating he would prepare him for the EUO and represent him there. Shimko told Berris he would like to meet beforehand to prepare, and he informed Berris that his standard legal fee was $385 per hour. Berris replied with an email asking Shimko to conduct a free “intake interview.” He requested a written copy of Shimko’s fee and services contract, and asked whether Shimko would handle the matter personally or assign it to another attorney at his firm.

Berris received no response to his email, and he sent Shimko another email stating his EUO was postponed. Shimko responded by email, writing the he would not charge Berris for the initial phone call, and estimated that between reviewing the insurance policies, prepping Berris for the EUO, and the actual examination, Berris’ bill would be about $2,300. Shimko acknowledged in the email that both agreed the scope of representation was only through the EUO. But he outlined the terms he would agree to if he were to handle the entire insurance claim, should Berris request that.

Shimko represented Berris at the EUO and the next day sent Berris a bill for $4,350. He concluded the bill with the statement: “If you require any further services in the future, it would be my privilege to represent you.”

Client Disputes Bill 

Berris wrote Shimko stating he was satisfied with the representation, but not the bill, which included a $154 charge for the initial phone call, a $539 charge for the email in which Shimko provided his estimated fees, and the addition of a 1.5% interest-per-month fee for any unpaid balance. Berris told Shimko he would pay $3,300 in monthly $500 installments without interest or penalty. He enclosed a $500 payment and made monthly payments until $3,300 was paid.

Shimko rejected the compromise and threatened to place a lien on Berris’ property to collect the rest of the money. In January 2016, Shimko filed a lawsuit in Cuyahoga County Common Pleas Court to collect the remaining fee. Berris hired an attorney to defend him, and that attorney asked Shimko to dismiss the case.

Shimko responded to the attorney by threatening to disclose confidential information Berris allegedly conveyed to him regarding the insurance matter. He told the attorney he may soon file a motion for summary judgment, a public record, which would state that he had to spend more time on the Berris case than estimated because of untruthful statements Berris made at the EUO.

The trial court found that Shimko spent a reasonable amount of time on the case and that his fee was justified. The court did exclude the $154 charge for the phone call, the $539 for the email, and the 1.5% interest rate charge.

Disciplinary Counsel Seeks Sanction

Based on Shimko’s handling of the matter, the disciplinary counsel charged him with violating several rules of professional conduct, including charging an excessive fee, using information from a former client to the disadvantage of the client, and engaging in conduct that adversely reflects on Shimko’s fitness to practice law.

Shimko challenged the charges, and a three-member panel of the board hearing the matter recommended a two-year suspension with one year stayed. The full board adopted the panel’s findings but recommended the Court impose the sanction requested by the disciplinary counsel—a two-year suspension with no stay. Shimko opposed the recommendation, arguing he deserved no penalty for his actions, and raised seven objections to the Court regarding the board’s handling of the matter.

The Court overruled all of Shimko’s objections, finding that there was no proof Berris committed fraud when he filed his insurance claim, and that Shimko could not provide any reasonable justification for disclosing confidential information he gained when representing Berris.

Court Calls for Greater Sanction

When considering  a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The opinion noted that Shimko has been disciplined twice before, acted with a selfish motive, and committed multiple rule violations. It found no mitigating factors.

The Court noted the hearing panel’s finding that, driven “by pure greed, and a hardwired, vindictive personality,” Shimko “sought to blackmail Berris by threatening to sabotage Berris’ claim against Allstate unless Berris paid his full fee.” In addition, the Court agreed with the panel’s assessment that Shimko exhibited a “confrontational and evasive attitude throughout the disciplinary proceedings.”

The Court indefinitely suspended Shimko from the practice of law and stated that should he petition for reinstatement he must “establish by clear and convincing evidence that he possesses the requisite mental, educational, and moral qualifications and is a proper person to be readmitted to the practice of law in Ohio.”

2018-1438Disciplinary Counsel v. ShimkoSlip Opinion No. 2019-Ohio-2881.

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