Submitted: January 24, 2018
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
"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).
"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).
"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
"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).
"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).
"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).
"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
"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).
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,  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.
FACTUAL AND PROCEDURAL HISTORY
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.
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. Based upon this
evidence, the HPS filed its report with this Court in
September 2017. The following is a brief summary of the
Complaint of Client #1
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
#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
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
matter involving Client #1, the HPS found that Mr. Sirk
violated several of the Rules. Specifically, the HPS concluded
that Mr. Sirk violated Rule 1.8(a)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)because he wrongfully
misappropriated and converted funds belonging to his client
and/or to a third person to his own personal use.
Complaint of Client #2
September 2013, Client #2  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.
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.
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