“Driven By Pure Greed, And A Hardwired, Vindictive Personality”

Dan Trevas has a summary of an attorney discipline matter up for oral argument bef ore the Ohio Supreme Court tomorrow

Disciplinary Counsel v. Thomas A. Shimko, Case no. 2018-1438
Cuyahoga County

A Cuyahoga County attorney objects to a proposed two-year suspension, with one-year stayed, based on allegations that he attempted to extort an attorney fee from his client that was $2,000 more than estimated.

The Board of Professional Conduct is recommending that the Supreme Court suspend Timothy A. Shimko based on multiple violations of the rules governing the conduct of Ohio lawyers, including charging a clearly excessive fee and engaging in conduct that adversely reflects on his fitness to practice law.

Shimko claims the board disregarded the Court’s 2010 Squire, Squire, Sanders & Dempsey LLP v. Givaudan Flavors Corp. decision when it found that he violated the rules while attempting to resolve a fee dispute. He claims his actions are permissible and that he shouldn’t be suspended, or that his suspension be fully stayed.

Client Seeks Help with Insurance Claim
In July 2015, Richard Berris, an electronics engineer, filed an insurance claim for a fire that destroyed a home he was constructing while living elsewhere. He told local media that he stored an estimated $1 million of equipment in the home and the equipment was used to design and build test instruments.

Berris had two insurance policies related to the property, one for the business equipment and a homeowner’s policy with Allstate Insurance. Allstate requested that Berris appear for an examination under oath (EUO) regarding his claim. Twelve days before the October 2015 EUO, Berris called Shimko and asked if he would be interesting in representing him at the EUO. Following the call, Shimko sent a letter to Berris stating he would represent him at the EUO, his fee was $385 per hour, and he wanted to meet the day of the EUO to prepare.

Berris sent Shimko an email that included a request for a free “intake interview,” and a written copy of Shimko’s fees and services. Shimko eventually responded stating:

• • He wouldn’t charge Berris for the initial phone call.
  • He understood Berris had two insurance policies.
  • His assignment was to represent him up to and during the EUO.
  • He estimated a bill in the range of $2,300.

The day after the EUO, Shimko sent Berris a bill for $4,350. He wrote that he completed the work and closed by stating: “If you require any further services in the future, it would be my privilege to represent you.”

Berris wrote to Shimko, indicating he was satisfied with the representation but not the bill. He noted there was a $154 charge for the initial phone call, a $539 charge to prepare the email explaining his billing practices, and a 1.5 percent interest charge that was not previously disclosed. Berris offered a compromise to pay $3,300 in $500 monthly installments, and included a $500 check. He then paid the $3,300 in monthly installments in full.

Lawyer Sues Client
Shimko sent a letter to Berris rejecting the compromise and indicating he didn’t give free consultations for business matters, and he expected to analyze one insurance policy, not two. He suggested that Berris didn’t “clearly inform” him of the magnitude of work he wanted completed. Shimko told Berris that if the bill was not paid in 10 days, he would sue, “lien your property and foreclose on it if I have to.” Shimko didn’t cash Berris’ checks sent to settle the matter.

A month later Shimko filed a lawsuit against Berris in Cuyahoga County Common Pleas Court, seeking $4,738, which included interest and filing fees on top of his original requested fee. He also stated he suffered damages of more than $15,000, which prompted Berris to hire attorney Bryan Carr to represent him. As the fee dispute proceeded in court, Allstate denied Berris’ claim, and Berris hired another attorney, not Shimko, to challenge the insurance denial.

Carr wrote to Shimko to resolve the case, and Shimko rejected the offer. He told Carr to “remind Mr. Berris that the attorney-client privilege is ineffective in a fee dispute between attorney and client.” He also stated that Berris committed perjury during the EUO, and that information could be included in a filing Shimko would make, which would be a public record, if Berris didn’t pay the full amount owed. Carr stated his first reaction was that this was a “shakedown,” and he contacted the Office of the Disciplinary Counsel.

When Shimko presented his case at trial, he didn’t mention that Berris allegedly lied at the EUO, but the issue came up during questioning. The trial court found most of Shimko’s time spent on the Berris case was reasonable, but the charge for the phone call or the time to prepare the email wasn’t reasonable. The court ruled that Shimko was entitled to $3,657.50, which was $357.50 more than Berris had paid.

Board Finds Rule Violations
Based on Shimko’s handling of the fee dispute, the professional conduct board found that Shimko charged an excessive fee in three ways, including intentionally charging for the phone call. It also found he violated the rule against using confidential information against the client without taking steps to limit access to the information to only those who need to know.

In proposing the suspension, the board cited the disciplinary counsel’s statement that Shimko was “driven by pure greed, and a hardwired, vindictive personality,” and he sought to blackmail Berris by threatening to sabotage his claim against Allstate unless Berris paid his full fee.

Lawyer Claims Rules Followed
Shimko argues the board ignored the Squire, Sanders decision, which recognized an attorney’s right to reveal confidential information shared between an attorney and a client when the attorney is providing support for his fee claim. He also argues the information wasn’t “confidential” because Berris went public with the alleged false statements under oath when he told the media he did experimental tests at the house while denying it to Allstate’s representatives during the examination. Shimko said Carr also shared Berris’ alleged false statement under oath with the disciplinary counsel after receiving Shimko’s rejection of a settlement, which also lifted the confidentiality requirement.

Shimko concludes that because the trial judge awarded him most of his requested fee, and he didn’t disclose confidential information, he didn’t commit the rule violations.

(Mike Frisch)