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Lawyer Disciplinary Board v. Sirk

Supreme Court of West Virginia

February 15, 2018

LAWYER DISCIPLINARY BOARD, Petitioner
v.
TIMOTHY M. SIRK, A MEMBER OF THEWEST VIRGINIA STATE BAR, Respondent

          Submitted: January 24, 2018

         Lawyer Disciplinary Proceeding

          Andrea J. Hinerman, Esq. Senior Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Attorney for Petitioner

          Timothy M. Sirk, Esq. Keyser, West Virginia Respondent

         SYLLABUS

         1. "A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

         2. "This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law." Syl. Pt. 3, Comm. on Legal Ethics of the W.Va. State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

         3. "A person named in a disciplinary proceeding before this Court, who, after the Hearing Panel Subcommittee has filed its Report with the recommended sanctions, commits a violation of the Rules of Professional Conduct related to the facts in the underlying complaint may be subject to an increased degree of discipline. Such subsequent misconduct may be relied upon by this Court as an aggravating factor that justifies enhancement of the recommended sanctions of the Hearing Panel Subcommittee." Syl. Pt. 7, Lawyer Disciplinary Bd. v. Grafton, 227 W.Va. 579, 712 S.E.2d 488 (2011).

         4. "In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession." Syl. Pt. 3, Comm. on Legal Ethics of the W.Va. State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

         5. "Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: 'In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors.'" Syl. Pt. 4, Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

          6. "Mitigating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify a reduction in the degree of discipline to be imposed." Syl. Pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         7. "Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses." Syl. Pt. 3, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         8. "Aggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify increase in the degree of discipline to be imposed." Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

          WORKMAN JUSTICE

         This lawyer disciplinary proceeding against Respondent Timothy M. Sirk was brought to this Court by the Office of Disciplinary Counsel ("ODC") on behalf of the Lawyer Disciplinary Board ("Board"). The Board's Hearing Panel Subcommittee ("HPS") determined that Mr. Sirk committed multiple violations of the West Virginia Rules of Professional Conduct ("Rules") and recommended that this Court suspend his law license for a period of one year, in addition to other sanctions. Based upon our review of the record submitted, ODC's brief and argument, [1] and the applicable legal precedent, we find Mr. Sirk committed numerous violations of the Rules. We disagree, however, with the HPS's recommendation that a one-year suspension is sufficient discipline. We find, instead, that Mr. Sirk's egregious misconduct warrants a three-year suspension from the practice of law and adopt the HPS's remaining recommended sanctions in full.

         I. FACTUAL AND PROCEDURAL HISTORY

         Mr. Sirk is a lawyer practicing in Keyser, West Virginia. He was admitted to the West Virginia State Bar in 1983. Prior to these proceedings, he had no disciplinary history.

          This matter involves two formal charges filed against Mr. Sirk that proceeded to hearing before the HPS in May 2017; several witnesses testified, including the two complainants, as well as Mr. Sirk who appeared pro se. In addition, ODC submitted several exhibits and the parties submitted Stipulated Findings of Fact and Conclusions of Law.[2] Based upon this evidence, the HPS filed its report with this Court in September 2017. The following is a brief summary of the complaints.

         A. Complaint of Client #1

         Client #1[3] and Mr. Sirk have been friends for more than fifty years; he previously retained Mr. Sirk to represent him in a variety of legal matters. When Client #1 became the executor of his mother's estate, he retained Mr. Sirk to represent him. Following the sale of Client #1's mother's home, Mr. Sirk opened a trust account at M&T Bank in Keyser, West Virginia, and deposited $30, 068 from the sale of the home in August 2013. Client #1 and Mr. Sirk had a verbal agreement at the time the account was opened that Mr. Sirk could borrow from this account as long as he repaid the money. However, they never discussed the specific terms of this agreement, Mr. Sirk did not advise Client #1 to seek legal counsel, nor did Client #1 provide written consent for Mr. Sirk to withdraw funds.

          Client #1 visited the bank in January 2014 and inquired about the balance of this trust account. He was shocked to learn that Mr. Sirk had withdrawn approximately $16, 800. After leaving the bank, Client #1 went to Mr. Sirk's law office to confront him. Mr. Sirk stated that he would repay the money, but it would take some time because he was experiencing financial problems and would need to take a second mortgage out on his home. Mr Sirk explained that he was dealing with personal problems, including children battling drug addictions. In July 2014, Mr. Sirk returned $16, 000 to Client #1 and approximately a month later, he paid the remaining $800.

         At the hearing held before the HPS, Mr. Sirk expressed remorse and apologized to Client #1. Mr. Sirk explained that he was suffering severe financial problems when he was supporting his grown son who is a heroin addict and was trying to secure drug rehabilitation. During this time, he learned that his other son was also a drug addict. Mr. Sirk testified that he was also caring for his elderly parents who were both very ill and dealing with his own personal health problems. Mr. Sirk stated that he turned to gambling and contemplated divorce. [4]

          In the matter involving Client #1, the HPS found that Mr. Sirk violated several of the Rules.[5] Specifically, the HPS concluded that Mr. Sirk violated Rule 1.8(a)[6]because Mr. Sirk withdrew money from a trust account containing money belonging to his client but did not disclose the transaction and terms in writing, did not advise the client to seek independent counsel, and did not obtain written consent to the various transactions. The HPS further found that Mr. Sirk violated Rule 8.4(c) and Rule 8.4(d)[7]because he wrongfully misappropriated and converted funds belonging to his client and/or to a third person to his own personal use.

         B. Complaint of Client #2

         In September 2013, Client #2 [8] retained Mr. Sirk to file a bankruptcy petition and paid him a $2, 500 retainer fee. For nearly a year, Client #2 contacted his office regularly to inquire about the status of her case and was told either that Mr. Sirk was still working on the matter or that there were cases ahead of hers and he would get to it soon. Client #2 met with Mr. Sirk in September 2014, and he assured her that they were ready to "go to court" and would receive a court date in the mail within the next month.

         However, in October 2014, Client #2 received a form letter from Mr. Sirk advising that he was "winding down" his practice of law and would be closing the office soon. In this letter, Mr. Sirk assured his clients that he would continue to work on pending cases for as long as possible until they were completed but that he was not accepting any new clients. The closure of Mr. Sirk's law office was sudden and the result of several reasons, primarily financial and health related; after the office closed, he no longer had access to the bankruptcy software or electronic filing, but he did not share this information with Client #2.

         In December 2014, Client #2 texted Mr. Sirk to inform him that if she did not hear back from him soon regarding her bankruptcy matter that she would file a civil suit against him. She received a voicemail the following day from Mr. Sirk who responded that he was "broke due to an illness, . . . did not file bankruptcy for [her] and did not have [her] money to give back to [her] at this time." Mr. Sirk acknowledged that he owed her the $2, 500 retainer fee, and suggested that she sue him and file a judgment lien against his house. Client #2 did file suit against Mr. Sirk in magistrate court and he simply confessed judgment. Mr. Sirk eventually returned half of Client #2's retainer fee, $1, 250, in December 2014, but he failed to return her file timely and then failed to answer her telephone calls. Client ...


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