2019 Ohio 2881
Ohio2019Background
- Timothy A. Shimko (admitted 1976) represented Richard Berris at an examination under oath (EUO) after Berris’s house fire; Shimko quoted $385/hr and estimated ~$2,300 but billed $4,350 and included charges Berris contested.
- Berris paid a reduced amount by installments and disputed charges (including a $154 phone charge and $539 email charge); Shimko threatened liens/foreclosure and sued to collect fees.
- While litigating fees, Shimko told opposing counsel (and later filed publicly) that Berris had told him the premises were used for business and that Berris then testified inconsistently at the EUO; Shimko argued disclosure was necessary to defend his fee claim.
- A Board panel found Shimko charged a clearly excessive fee (Prof.Cond.R. 1.5(a)), threatened to disclose and disclosed confidential client information (Prof.Cond.R. 1.9(c)(1), 1.9(c)(2)), and engaged in conduct reflecting adversely on fitness to practice (Prof.Cond.R. 8.4(h)).
- The panel recommended a two-year suspension (one year stayed). The Board recommended a two-year suspension with no stay. The Supreme Court independently reviewed the record, overruled Shimko’s objections, adopted misconduct findings, and imposed an indefinite suspension.
Issues
| Issue | Plaintiff's Argument (Disciplinary Counsel) | Defendant's Argument (Shimko) | Held |
|---|---|---|---|
| Whether the panel report was fatally flawed/omitted critical evidence or law | Panel’s report properly stated facts and board had access to full record; omissions immaterial | Panel failed to disclose key evidence and cases (e.g., Squire) to board | Overruled; report not fatally flawed; board and Court reviewed full record |
| Whether the disclosed information was confidential/privileged | Information related to representation and not generally known; disclosure violated rules | Information was public/newspapered, revealed in EUO or waived, or involved fraud so not privileged | Held confidential; newspaper articles did not make the specific facts generally known; privilege not waived; fraud exception not shown |
| Whether disclosure was permitted to establish/defend fee claim (Prof.Cond.R.1.6(b)(5) / Squire) | Even if rule permits limited disclosure to establish fee claim, Shimko’s disclosures were unnecessary and overbroad | Shimko reasonably believed disclosure necessary to prove fees and defend against allegations | Held Shimko did not reasonably need to disclose the information for his fee claim, and in any event failed to limit disclosure as required |
| Appropriate sanction for charging excessive fee and disclosing confidential information | Multiple aggravating factors (prior discipline, selfish motive, multiple offenses, lack of remorse) warrant severe sanction | Sanction excessive; single fee dispute, no evidence misconduct will recur; two-year suspension unwarranted | Court imposed indefinite suspension (reinstatement only on petition and clear/convincing proof), overruling request for lesser discipline |
Key Cases Cited
- Squire, Sanders & Dempsey L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 937 N.E.2d 533 (Ohio 2010) (self‑protection exception permits disclosure of client communications to establish or defend attorney fee/malpractice claims)
- Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 982 N.E.2d 650 (Ohio 2012) (one‑year suspension for disclosure of confidential information to third party; aggravating factors considered)
- Akron Bar Assn. v. Holder, 102 Ohio St.3d 307, 810 N.E.2d 426 (Ohio 2004) (two‑year suspension with large portion stayed where attorney disclosed client secrets but showed remorse and mitigating evidence)
- Cleveland Metro. Bar Assn. v. Heben, 150 Ohio St.3d 335, 81 N.E.3d 469 (Ohio 2017) (stayed one‑year suspension for public filing that disclosed client confidences; failure to limit disclosure was sanction factor)
- Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 635 N.E.2d 331 (Ohio 1994) (attorney‑client privilege does not protect communications used to further future unlawful or fraudulent acts)
- Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193 (Ohio 1999) (Supreme Court conducts independent review of disciplinary records and is final arbiter of misconduct and sanctions)