When I first read some reporting about this decision from Ohio involving the indefinite suspension of a lawyer, I expected it to come across very much as an obvious case of a lawyer’s third strike leading to a steep punishment. But, the coming together of so many things with respect to this lawyer’s situation actually offers quite a story from which a lot of lawyers can learn a few things (or at least be reminded of some things they already knew). Thus, showing my age again, I’ve gone with The Police album rip-off title for this post.
So, yes, at the straightforward level, if you read this opinion, you will digest the story of a lawyer getting hit with his third strike. About nine years ago, Mr. Shimko engaged in some financial chicanery with some clients leading to a public censure in Ohio that was imposed as reciprocal discipline after Arizona had first done the same. Three years or so after that, he received a one-year suspension (but it was all stayed so he continued to practice) for disparaging a judge. Now, he’s received an indefinite suspension after he appealed a recommended two-year suspension for charging an excessive fee to a client and then unnecessarily disclosing confidential information about the client in connection with suing the client for the excessive fee amount (along with a bit of unsavory threatening to disclose the information in order to try to get the client to settle).
Most of his story is routine stuff that all lawyers know (or should know) they should not do. The last seven-or-so-pages of the opinion also offer a tangible example of why trying to throw every potential appellate argument into a mix — particularly in a disciplinary case — is not a very good strategy. But along the way, there are two real teachable nuggets here of things that a surprising number of lawyers sometimes don’t know, and there is also one big topic that the Court simply fails to mention which also is pretty important (and which it could have used to further skewer the lawyer’s scattershot allegations of error on appeal.)
Much the way my son tackles fast food; first we will tackle the nuggets:
Nugget #1: You just can’t bill your clients for time you spend drafting what amounts to your engagement letter. If it is a good engagement letter, you are substantially creating it for your own benefit and protection. At most, it is documentation that is partially being created for the client’s benefit. Don’t try to charge the client for that time.
Nugget #2: There is a second-level of consideration when a lawyer is proceeding under a self-defense exception to restrictions on the disclosure of confidential information. Not only do you have to be able to demonstrate that one of the specific exceptions under RPC 1.6(b) can be satisfied, which you can do if you are trying to pursue payment from the client as an example. But you also have to remember that the disclosures you make need to be no more than is reasonably necessary AND in a lot of circumstances you still have to make efforts to try to limit the number of people to whom the disclosure is made. The comments to RPC 1.6 lay out guidance about this in most jurisdictions in a very clear and helpful fashion. If you are litigating a fee dispute with a client, even though you can disclose confidential information to the Court in order to prevail on your claim or defeat the claim of your client/former client, you may very well have to also seek the entry of a protective order to try to prevent the information you are disclosing from becoming fully available to the public.
And the thing that was missing? Any discussion by the Court of why this Ohio lawyer’s arguments about how he was entitled to do what he did because the client was committing insurance fraud using his services are very hard to reconcile with one or two other ethics rules in Ohio (and elsewhere) – RPC 3.3 and RPC 4.1.
If the lawyer’s version of events regarding what the client had told him in advance of the examination under oath was to be believed, then under RPC 4.1 what the lawyer was required to do, at minimum, was to withdraw from the representation so as not to assist with the fraud. If representing someone in a pending insurance dispute during an examination under oath is somehow treated as a representation to a tribunal under Ohio law (which I would suspect is not the case), then RPC 3.3 in Ohio — patterned after the Model Rule — would have required the lawyer to speak up during the EUO about what was happening not after the fact.
The Court likely didn’t address those issues because it did not need to since the earlier rulings had found the lawyer’s assertions not to be credible, but even a footnote highlighting this issue for lawyers might have been a worthwhile piece of dicta.