Lawyer suspended for disclosing client info in 'vindictive' bid to collect fees
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The Ohio Supreme Court has suspended a lawyer for threatening to disclose confidential information in a bid to collect a fee and then carrying out the threat.
The nature of Shimko’s conduct was “unreasonable and vindictive,” said the court, which rejected a recommendation for a lesser, two-year suspension.
The ethics case stems from a fee dispute between Shimko and an engineer who hired the lawyer to represent him regarding his insurance claims for fire damage. A home the engineer had been building for about 17 years had burned down, along with the instruments, data and books he stored in the basement. The engineer wanted Shimko to represent him during an examination under oath.
Shimko had informed the engineer his rate was $385 an hour and he anticipated his total bill for reviewing the policies, preparing the engineer and representing him at the examination would be somewhere in the range of $2,300. After Shimko completed the work, he sent the engineer a bill for $4,350.
The engineer informed Shimko he would pay only $3,300 in $500 monthly installments, then did as he said. Shimko sued for the rest of the fees.
When the engineer’s new lawyer asked Shimko to drop the complaint, Shimko responded that the engineer had made false statements under oath that he had not worked or conducted business on the premises before they were destroyed by fire. The engineer’s policy on the fire-damaged premises excluded coverage for business property.
“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,” Shimko wrote to the engineer’s lawyer. “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 unring that bell.”
In a later brief in the suit for fees, Shimko said the engineer had conducted a significant amount of business at the premises, but claimed he didn’t run a business when he was examined under oath.
After weighing conflicting testimony, a hearing panel of the Ohio Board of Professional Conduct rejected Shimko’s claims that the engineer lied under oath, the Ohio Supreme Court said.
“Ultimately, the panel was convinced—as are we—that the sole purpose of Shimko’s threats and subsequent exposure of confidential information was not to prevent [the engineer] from using his legal services to commit insurance fraud,” the court said, “but to compel [the engineer] to pay his fee.”
The court found that Shimko violated a disciplinary rule that generally bars lawyers from using information relating to the representation of a former client to the disadvantage of the former client.
The court also said Shimko had violated the disciplinary rules by charging an excessive fee.
Shimko had told the engineer he wouldn’t be charged for an initial telephone conference, yet he billed him $154 for the call. At his disciplinary hearing, Shimko testified, “My word is my bond until I change it, I guess.”
He also charged $539 to prepare an email memorializing a fee agreement and charged a 1.5% interest rate on the unpaid fee. The hearing panel had found both to be excessive.
Shimko had been disciplined twice in the past. In June 2009 he was censured in Arizona for representing clients with potential conflicts of interest and charging an excessive fee. In 2012 he received a stayed suspension in Ohio for accusing a trial judge of dishonesty.
Shimko didn’t immediately respond to a request for comment by the ABA Journal.