REMOTE SESSION BAR EXAM

In a startling announcement, The Supreme Court of Ohio announced yesterday that it will conduct the next bar exam remotely in light of coronavirus concerns for safety. In May, the exam, originally scheduled for the end of July, 2020, was postpone until September. The new announcement postpones the exam yet again for one month, until October 5 and 6, 2020. Historically, the Ohio bar exam is held at the end of July and at the end of February. However, COVID-19 has thrown this year’s exam schedule completely off.

Those with applications pending to take the September exam will automatically be rolled over to take the October exam. For those wishing to opt out of the automatic roll over admission, the deadline to withdraw is September 28, 2020.

There is good news for applicants who withdrew their applications when the bar exam was moved from July to September. While they were prohibited from taking the September bar exam, they will be permitted to resubmit their applications to take the October bar exam remotely.

More good news for those granted Recent Graduate Practicing Pending Admission under the Supreme Court’s May 14, 2020 order. Their temporary authority to practice law will not expire on October 1, 2020 if they opt to transfer to take the February bar exam. Instead, it will continue until February 1, 2021.

For more information, see the Supreme Court of Ohio’s website at http://www.courtnewsohio.gov/happening/2020/barExamPostponement_072220.asp#.Xxmsip5KhaQ

Watch What You Charge; And Watch What You Say

In his third time through the disciplinary system in 9 years, attorney Timothy Shimko of Westlake was indefinitely suspended from the practice of law on July 18, 2019, for charging a clearly excessive fee and for revealing confidential attorney-client information.

Richard Berris hired Shimko to represent him on a limited basis regarding a commercial claim he filed with Nationwide Insurance after a fire destroyed Berris’s house. Berris did not reside in the house but told Shimko that he conducted business out of the basement. Shimko advised that under those facts Nationwide would not pay on the claim. Berris also filed a claim with Allstate, his homeowner’s insurance company.

Nationwide requested that Berris submit to an examination under oath (“EUO”).  Berris testified at the EUO that he did not conduct business out of the house.

Shimko quoted Berris an hourly rate of $385 for the limited representation and estimated that it would require approximately 6 hours and that he would expect the fee to be about $2,300.00.  After the EUO, Shimko sent Berris a bill for $4,350.  Berris indicating he was satisfied with the representation but objected to the amount of the bill. He offered to pay Shimko $3,300 in $500 monthly installments with no interest.  Shimko charged 1-1/2% interest on amounts not paid within 30 days. Shimko rejected Berris’s offer.

Shimko filed suit to collect the $1,050 balance of his fees plus interest on the unpaid portion.  Shimko told Berris’s counsel that he would be filing a Motion for Summary Judgment, which would reveal the client’s misstatement at the EUO.  If the client wanted to avoid this, he should settle the matter prior to that filing.  The court found that, although the amount of time Shimko spent on the representation was reasonable, his $154 charge for an initial telephone consult and his $539 charge for an email regarding the fee agreement were unreasonable.  The court did not award interest on the fee bill.

The Supreme Court found that Shimko’s $154 and $539 charges were clearly excessive in violation of Prof.Cond.R. 1.5.  The former because Shimko told Berris that he would not charge for the consultation and the latter because it was merely a fee agreement with no legal analysis.  Also violating that rule was Shimko’s interest charge since there was nothing in the fee agreement that alerted Berris that Shimko would charge interest on unpaid balances.

The Court also found that Shimko’s threat to reveal confidential information and then actually disclosing it in the Motion for Summary judgment in the civil case violated Prof.Cond.R. 1.9(c)(1) (using confidential information to the disadvantage of a former client); Prof.cond.R. 1.9(c)(2) (prohibiting use of information related to the former representation of a client except as required or permitted by law); and Prof.Cond.R. 8.4(h) (conduct adversely reflecting on the attorney’s fitness to practice law). The Court rejected Shimko’s argument that revealing the information came within the Prof.Cond.R. 1.6(b)(5) exception to establish a claim in a controversy between lawyer and client.

This case raises a whole host of interesting questions.  Shimko was sanctioned for violating conflict of interest rules stemming from a violation of the attorney-client privilege.  However, no Prof.Cond.R. 1.6 violation was charged, although the Supreme Court did find that it occurred.

Shimko claimed that Berris lied in the EUO, a fact that both the Panel and the Board flat out rejected.  Berris testified at the hearing that he and Shimko spent a considerable amount of time in preparing for the EUO to discussing “how Mr. Berris might successfully navigate his way through the [EUO], without destroying coverage and without perjuring himself.” Disciplinary Counsel v. Shimko, 2019-Ohio-2881, par. 39.

Shimko’s statement that Berris lied about a factual issue at the EUO would invoke Shimko’s duty under Prof.Cond.R. 4.1 to rectify the misstatement.  Comment [3] makes clear that an attorney may not assist a client in conduct the lawyer knows is illegal or fraudulent.  An attorney is required “to disclose a material fact, including one protected by the attorney-client privilege, when the disclosure is necessary to avoid the lawyer’s assistance in the client’s illegal or fraudulent act.”  The only way that Shimko could have been justified in revealing his client’s confidential information is by following Prof.Cond.R. 4.1, which he clearly did not do.

The results here seem puzzling.  The confidential information that Shimko revealed was “that Berris’s testimony at the EUO was inconsistent with his confidential statements to Shimko — all the while knowing that the disclosure could damage Berris’s pending claim with Allstate.”  Id. par. 21.  This finding accepts Shimko’s statement as true that Berris’s testimony at the EUO was, indeed, inconsistent with his confidential statements to Shimko.  Yet, the Panel and the Board rejected Shimko’s position that Berris lied under oath at the EUO.  Id. par. 40.  If Berris’s testimony at the EUO was truthful, how could Shimko’s statements that Berris told him inconsistent confidential information, likewise,  be true?   Shimko’s statement would be a misrepresentation in violation of Prof.Cond.R. 8.4(c).  No such violation was pled or found.  Either Berris lied at the EUO and his testimony falls outside of the attorney-client privilege per Prof.Cond.R. 1.6(d), or Shimko lied in saying Berris’s testimony was inconsistent with privileged communication.  If Berris lied, there is no conflict of interest for Shimko revealing information that is not privileged.  If Shimko lied, there is no conflict of interest because the information he revealed is a lie and not a privileged communication.

The cautionary tale behind this case is that a client may well use an attorney’s services to perpetrate a fraud, as appears to have been done here.  Where the purpose of revealing the confidential information is to prevent the client from using the attorney’s legal services to do so, revealing the information is permitted.  Id. par. 40.  Where, however, the sole purpose for revealing the confidential information is to compel the client to pay the attorney’s fee bill, revealing attorney-client information is not permitted without taking steps to limit access to the confidential information only to persons needing to know it.  Id. pars. 40, 43.

Attorney’s Oversight Failure Leads to Discipline

Attorney D. William Davis was publicly reprimanded after his secretary embezzled $185,000 from his solo practice over 11 years.  Ultimately, the funds stolen were funds that would have been paid to Davis.  However, some of the funds were unearned retainers in Davis’s IOLTA account.  His secretary pleaded guilty to theft by deception and was sentenced to three years in prison. Davis reimbursed his IOLTA account for the client funds that had yet to be unearned.  Although Davis reviewed his bank accounts every month, he did not perform the required monthly reconciliation of the client ledgers.

The Supreme Court of Ohio determined that Davis violated “Prof.Cond.R. 1.15(a)(5) (requiring a lawyer to perform and retain a monthly reconciliation of the records of funds being held on a client’s behalf) and former DR 9-102(B)(3) (requiring a lawyer to maintain complete records of all client property coming into the lawyer’s possession and render appropriate accounts to each client). In addition, the parties stipulated and the board found that Davis failed to adequately supervise Sliva in violation of Prof.Cond.R. 5.3(b) (requiring a lawyer to make reasonable efforts to ensure that a nonlawyer employee’s conduct is compatible with the professional obligations of the lawyer) and former DR 1- 102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).”

Because it found no aggravating but several mitigating circumstances, the Supreme Court of Ohio publicly reprimanded Davis.  Among the mitigating circumstances were Davis’s full and free disclosure to relator and the Board and his extremely cooperative behavior during the disciplinary process. Davis’s clients lost no money in the theft and he and his partner have implemented protocols to ensure that such conduct does not recur.

The lesson to be learned is that monthly IOLTA reconciliations are crucial to an attorney’s duties under the Ohio Rules of Professional Conduct.

Private Attorney Conduct is Sanctionable

Solicitation of a prostitute and having sex with a client has resulted in a one-year suspension with six months stayed for attorney Thomas Mason of Ashland, Ohio.  Mason responded to a Craigslist advertising stating “Call me. We can help each other out.”  Mason and the woman met and had intimate relations on three occasions.  The police discovered Mason’s conduct as part of a sting operation.  Mason was charged with misdemeanor counts of soliciting sexual activity for hire, possession of criminal tools, intimidation of a witness, obstructing justice, and falsification. Mason entered an Alford plea to the solicitation charge for the dismissal of the remaining charges.  The Supreme Court of Ohio found his conduct violated Prof.Cond.R. 8.4(h) conduct adversely reflecting on an attorney’s fitness to practice law.

Mason also agreed to represent a woman in a divorce proceeding.  He visited the client at her home to complete paperwork and, subsequently, had sexual relations with her on multiple occasions.  Mason represented her throughout the divorce and thereafter, billing for his services, although his client never paid the bill.  Mason said he would not attempt to collect on the bill.  This conduct violated Prof.Cond.R. 1.8(j) prohibiting a lawyer from having sex with a client and Prof.Cond.R. 8.4(h) conduct adversely reflecting on an attorney’s fitness to practice law.

Ohio Is Getting A New Disciplinary Counsel

Last week, the Board of Commissioners on Professional Conduct announced that it is conducting a nationwide search for the position of Disciplinary Counsel.  On March 5, 2019, The Supreme Court of Ohio, acting on a Board recommendation, approved an amendment to Gov. Bar R. V to reinstate a 4-year term for that position.  The new term begins October 27, 2019.  Previously the term was for 6 years.  For the past 6 years, the position has been held by Scott Drexel, a former Bar Counsel from California.  The position will be posted or distributed through state and national publications.  It will likewise be posted to national organizations specializing in ethics such as the National Association of Bar Counsel, the Association of Professional Responsibility Lawyers and the National Counsel of Lawyer Disciplinary Boards.  Information about the position can be found on the Supreme Court’s career opportunities webpage.  Chairing the 7-member Panel of the Board conducting the search is Vice Chair Patricia Wise of Toledo.  Interviews will be conducted during the spring and summer and a recommendation will be made to the Board at its August 2, 2019 meeting.  The recommendation will be subject to the approval of the Supreme Court of Ohio.