Free Memorandum - District Court of Arizona - Arizona

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RICHARD J. MCDANIEL, P.C. ATTORNEY AT LAW 11811 N. TATUM BLVD., SUITE 1051 PHOENIX, ARIZONA 85028 Telephone (602) 953-8721 FAX (602) 953-8731 Richard J. McDaniel #013329 Attorney for Defendants Woodcock IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. CIV 04-78-FJM SHIMKO & PISCITELLI, Plaintiff, v. PAUL and BOBBI WOODCOCK, et. al. Defendants. DEFENDANT WOODCOCKS' MEMORANDUM RE: COMPLIANCE WITH ER 8.3

Pursuant to this Court's order of June 26, 2008, Defendants Woodcock and their attorney, Richard McDaniel, provide the following information showing compliance with ER 8.3. Defendants have been very reluctant to counterclaim against Shimko for legal malpractice or to file a bar complaint because they feared a vindictive counterattack. As described below, defendants' fear was not unreasonable. However, as evidence continued to mount of Shimko's repeated conflicts of interests and misrepresentations in federal courts, counsel was finally able to persuade his clients to allow bar complaints to be filed against Shimko and Welling. These

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complaints were filed with the State Bar of Arizona and the Office of Disciplinary Counsel in Columbus, Ohio on April 24, 2008. (Copy of complaint letter without exhibits attached as Ex. A) As the Woodcocks feared, Shimko was quick to threaten retaliation. On or about May 27, 2008, Shimko called defense counsel stating that because the Woodcocks had filed a bar complaint, the attorney-client privilege was now waived and he was free to talk to the prosecutor in the criminal case. Shimko added that he had "a lot to tell the prosecutor." (Copy of defense counsel's letter of May 27, 2008 to Shimko attached as Ex. B.) After Shimko's implicit, if not actual, threat, defense counsel sent a supplementary letter to the State Bar of Arizona and the Office of Disciplinary Counsel in Columbus, Ohio. (Copy attached as Ex. C.) The Arizona Bar responded that the matter is under investigation. (Ex. D) The Office of Disciplinary Counsel in Columbus responded that it would not pursue a matter while the parties are in litigation. (Ex. E) Dated this 27th day of June 2008. RICHARD J. MCDANIEL ATTORNEY AT LAW By /s/ Rich McDaniel Richard J. McDaniel 11811 N. Tatum, #1051 Phoenix, AZ 85028 Attorney for Defendants Woodcock

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Original electronically filed and copy sent electronically this 27th day of June 2008 to: David Welling Timothy Shimko & Associates 2010 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 Roger Cohen JABURG & WILK 3200 N. Central, 20 th Floor Phoenix, AZ 85012-2440 Attorney for Ross Copy mailed to: David and Rhona Goldfarb 11437 N. 53 rd Place Scottsdale, AZ 85254 Pro Per /s/ Rich McDaniel

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EXHIBIT A
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RICHARD J. MCDANIEL

April 24, 2008

State Bar of Arizona Attorney/Consumer Assistance Program 4201 N. 24th Street, Suite 200 Phoenix, AZ 85016-6288 Office of Disciplinary Counsel 250 Civic Center Dr., Suite 325 Columbus, Ohio 43215 Re: Attorneys Timothy Shimko and David Welling Dear Sir: I am an attorney in Phoenix, Arizona. I represent Paul and Bobbi Woodcock. The Woodcocks are defendants in an action pending in Federal District Court in Arizona, CIV04-PHX-FJM. Timothy A. Shimko, an Ohio attorney, has sued Paul Woodcock and three other limited partners for legal bills for which he claims they are personally responsible. Shimko is represented by David A. Welling, a member of his firm. Both attorneys have engaged in serious misconduct in violation of the Arizona and Ohio Rules of Ethics/Professional Responsibility. These claims are described below. Complaint Against Timothy A. Shimko David A. Welling Timothy A. Shimko & Associates A Legal Professional Association 2010 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 Background Timothy Shimko and Frank Piscitelli, two Ohio attorneys, began to represent CORF Licensing Services, L.P. and CORF Management Services, L.P., two Arizona limited 11811 N. TATUM BLVD., #1051 PHOENIX, ARIZONA 85028 PHONE: 602 953-8721· FAX: 602 953-8731 Case 2:04-cv-00078-FJM Document 219 Filed 06/27/2008 Page 5 of 27

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partnerships, in or about December 2000. Paul Woodcock and one of the other limited partners knew Shimko from a previous matter and asked Shimko if his firm could review the comprehensive outpatient rehabilitation facility (CORF) consulting business the limited partnerships were starting up. Neither Shimko nor Piscitelli explained to their clients that they knew nothing about Medicare law and regulations concerning the operation of comprehensive outpatient rehabilitation facilities. Shimko's firm billed almost $8,000 to "look over" the business, but failed to provide an opinion, review, or guidance to its clients. In November 2001, Shimko and Piscitelli, appearing pro hac vice, began representing the CORP limited partnerships, the general partner, the four limited partners, and some officers and employees to address breach of contract and fraud complaints from clients of the CORF consulting service. S&P began representing at least eight clients, including the limited partners Woodcock, Ross, Goldfarb, and Guenther; CORF officers, Ritchie and Brill; and CORF Management Services, L.P., and CORF Licensing Services, L.P. Shimko did not explain to his clients the dangers and risks involved in his representing multiple clients. Shimko did not obtain his clients' consent to waive the potential conflicts. During his representation, Shimko did business transactions with the CORF entities without explaining the risks and potential conflicts and without letting the Woodcocks and some of the other individuals know what he was doing. Shimko lent $200,000$250,000 to one of the CORF entities without disclosing the details of the transactions to the Woodcocks or obtaining their consent. Shimko also acquired an ownership interest in Aztec Medical, a tissue bank venture, with some of the defendants in return for legal services without explaining the risks and potential conflicts. After the CORF partnerships went bankrupt in or about April 2003, Shimko started an action in federal court against the limited partners and officers claiming that, even though there was no written fee agreement, they were individually responsible for fees Shimko claimed he was still owed. The matter is set for trial for August 2008. Complaint Issues/claims related to Shimko's representation of the limited partners/individual defendants. 1. Shimko failed to provide competent legal services to the limited partners/individual defendants in his firm's initial review of the CORF consulting business because he and his firm's attorneys did not know Medicare law and regulations; failed to familiarize themselves with the relevant law and regulations; failed to advise their clients that they were not experienced in this area of practice; and failed to give their clients any guidance or opinion. 2. When Shimko's firm began to represent the partnerships, officers, and limited partners in fraud and breach of contract cases brought against them, Shimko failed

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to explain to the individual clients that he would hold them personally responsible for his legal bills if the partnerships were unable to pay the bills. 3. Shimko violated the ethical rules by failing to advise his clients of potential conflicts in his simultaneous representation of at least eight different clients including the limited partnerships, the general partner, the limited partners, and officers and employees. 4. Shimko violated the ethical rules by failing to obtain his clients' consent to the potential conflicts involved in the multiple representation. 5. Even when evidence arose of actual conflicts, Shimko still failed to advise his client of the risk or advise them that they might want to seek separate counsel. For example, when plaintiffs' lawyers in the underlying fraud litigations were offering to drop claims against some of the corporate officers in return for their testimony against the limited partners, Shimko did not warn his clients about the conflicts or advise them that they might want to seek separate counsel. 6. For example, even though one of the limited partners continued to make presentations at seminars that Shimko thought might increase the risk, number or likelihood of more fraud claims, Shimko did not advise the other limited partners that they might want to seek separate counsel. 7. Shimko made a loan of $200,000-$250,000 to one of the partnerships without advising the Woodcocks in advance, without disclosing the terms, and without obtaining their consent. 8. Shimko never explained to the Woodcocks or other individual clients that he might attribute payments coming from the CORF partnerships to repayment of the loan instead of toward payment for legal fees, thus increasing the risk that the Woodcocks and other individuals might end up footing the bill for his attorneys' fees. 9. Shimko entered into a venture, Aztec Medical, a Mexican tissue bank with some of the limited partners and partnerships without advising his clients of the risks or getting their consent. 10. Shimko did not explain the details and terms of how he came to acquire a seven percent or more interest in Aztec Medical thought it apparently involved his agreement to do some legal work in return for an ownership interest. 11. Shimko did not inform his clients of the potential risks of the business transaction even after he received a letter from one of the plaintiffs' lawyers in the underlying fraud litigations accusing Shimko of using Aztec Medical to fraudulently transfer money from the CORF partnerships to Mexico. 12. Shimko attempted to have the limited partners pledge their homes as collateral toward fees without warning them that this might cause them to lose the homestead exemption and without advising his clients to have outside counsel review the proposed transaction. Issues/claims related to Shimko and David Welling's conduct in their action in Federal District Court for Arizona and the Ninth Circuit Court of Appeals for attorneys' fees against the Woodcocks and other individual defendants/limited partners.

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1. Shimko and Welling have misrepresented in pleadings, affidavits, trial testimony, and deposition testimony the amount paid to Shimko's firm. Shimko testified at trial and deposition that his firm received only $129,000 from the CORF entities; however, Shiko's firm's own records show that his firm was paid approximately $603,000. 2. Shimko may have preferentially applied payments from the CORF entities to repayment of a loan instead of toward attorneys' fees without the knowledge and consent of his individual clients. 3. Welling is Shimko's attorney and a member of Shimko's firm. Welling has suborned Shimko's perjury regarding payment received by failing to correct it and/or failing to withdraw from the case. 4. Shimko acknowledged at his deposition on March 24, 2008 that he has known since the summer of 2003 that his firm overbilled the CORP entities and partners for David Welling's work at the time as an unlicensed law clerk with his firm, charging $350 per hour instead of $125. This resulted in overcharging more than $78,000 of the $359,000 that Shimko claims his firm is owed. Even though Shimko and Welling have known for five years that the $78,000 should be subtracted from the $359,000, they have failed to do so. They have repeatedly averred in pleadings and affidavits to Judge Martone and Judge Sedgwick in Arizona District Court and to the Ninth Circuit Court of Appeals that Shimko's firm is still owed the full $359,000. This fraud upon the court has resulted in injustice as when Shimko and Welling argued in their Memorandum on the Guenther trial remand on March 3, 2008, that Guenther as one of four individual defendant, owed one-fourth of the full $359,000. These claims and issues are more fully discussed in Defendant Woodcocks' Amended Motion to Dismiss and Motion for Summary Judgment and the Amended Statement of Facts supporting the motion. Copies of both the motion and statement of facts are attached. Please contact me if you need additional information.

Richard J. McDaniel Attorney at Law

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EXHIBIT B
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RICHARD J. MCDANIEL

May 27, 2008

David Welling Timothy Shimko Timothy Shimko & Associates 2010 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 Re: Shimko v. Woodcock, et. al. Dear Tim: This will confirm our conversation of this morning, in which you told me that because Paul Woodcock had filed a complaint with the Arizona and Ohio Bar Associations, you no longer believe that the attorney-client privilege applied. You stated you would start cooperating with the federal prosecutor in the criminal case against Woodcock and the other defendants and that you "had a lot to tell the prosecutor." As I stated in our conversation, Paul Woodcock has not waived his attorney-client privilege. To the extent any attorney-client privilege may be waived by a bar complaint, it is at most waived only in regard to matters directly before the bar association. These matters include your violations of Ethical Rules 1.7 and 1.8; misrepresentations at trial and in deposition testimony about amounts your firm was paid; and repeated misrepresentations in pleadings and affidavits that your firm was entitled to $78,000 in excess billings. These matters focus on your responsibilities and ethical duties to your clients and have nothing to do with the defendants' alleged conduct in the CORF entities. I regard your comment that you have a lot to tell the federal prosecutor as an improper attempt at intimidation and possible blackmail. Moreover, if David Welling is acting as your attorney, he should be communicating with me and not you. You should continue to assert the Woodcocks' privilege in the criminal proceedings. You should contact Chris Dupont, Woodcock's public defender, at 602-344-0038, if you have any questions regarding your responsibilities.

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-- 2-- Sincerely,

May 27, 2008

Richard J. McDaniel Attorney at Law C: Chris Dupont

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EXHIBIT C
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RICHARD J. MCDANIEL

May 27, 2008

Russel J. Anderson State Bar of Arizona Disciplinary Investigations Attorney/Consumer Assistance Program 4201 N. 24th Street, Suite 200 Phoenix, AZ 85016-6288 Office of Disciplinary Counsel 250 Civic Center Dr., Suite 325 Columbus, Ohio 43215 Re: Attorneys Timothy Shimko and David Welling, AZ Bar file nos. 08-0759, 080760 Dear Sir: This letter is in follow up to the earlier complaint filed by my clients Paul and Bobbi Woodcock against Ohio attorneys, Timothy Shimko and David Welling, acting pro hac vice in Arizona. As you will recall, Shimko acted as general counsel for a group of CORF related partnerships and simultaneously represented several individual defendants (limited partners Woodcock, Ross, Goldfarb, and Guenther; officers and employees Brill and Richie; and their spouses) in breach of contract and fraud suits brought against the partnerships, limited partners, and officers. After about a year and one-half, the partnerships became unable to pay Shimko's fees and he withdrew as counsel. Shimko subsequently sued his former clients in federal district court in Arizona alleging that he was owed approximately $359,000 in unpaid fees. The individual defendants eventually settled the underlying breach of contract and fraud suits, but the limited partners were charged in criminal complaints last year. Shimko's federal civil case is still pending with the matter set for trial in August 2008. The limited partners have filed for summary judgment based upon Shimko's violation of Ethical Rules 1.7 and 1.8; perjury/misrepresentations about amounts paid his firm; and his continuing representations that his firm is owed $78,000 in excess billings, which he 11811 N. TATUM BLVD., #1051 PHOENIX, ARIZONA 85028 PHONE: 602 953-8721· FAX: 602 953-8731 Case 2:04-cv-00078-FJM Document 219 Filed 06/27/2008 Page 13 of 27

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knows his firm is not owed. I have previously forward you copies of the Woodcocks' motion for summary judgment and statement of facts. I am enclosing with this letter, Shimko's response, affidavit, and statements of facts; Defendant Ross' reply and supplemental statement of facts; and Defendant Woodcock's reply and supplemental statement of facts. Shimko claims in his response that he did not violate ER 1.8 by lending the partnership $250,000 without following the requirements of the rule because he was merely doing a favor. Shimko claims he did not violate the rule when he took an ownership interest in Aztec Medical, a Mexican tissue bank, with some of his clients because it was unrelated to his representation of his clients. Shimko ignores the fact that one of the plaintiffs' attorneys in the underlying cases wrote Shimko a letter accusing him of using the company to hide CORF partnership money in Mexico and the fact that plaintiffs' attorneys asked Woodock and the other defendants at their depositions about the company. Shimko says he did not violate ER 1.7 because he never saw a possible or actual conflict in the defenses and interests of the business entities, four limited partners, and the company officers Brill and Richie. Shimko denies that he committed perjury at the Guenther trial and at his deposition when he testified that his firm had been paid only $135,000; however, confronted with his firm's own records of amounts received, which were not disclosed to defendants until last month, Shimko now concedes that his firm was paid at least $320,000. The actual amount paid to Shimko's firm is probably more in the range of $400,000 or $500,000. Shimko's billing records and statements are confusing and Shimko continues to give misleading statements to the courts and defendants. In responding to the motion for summary judgment Shimko claims that defendants gave him five checks totaling $250,000 to repay the loan, but $275,000 in checks bounced. However, if one looks at the records produced by Shimko to show amounts his firm received, there aren't five checks that would total up to the $250,000. Combining the five checks shown in Shimko's records totals $187,500. (Ex. G to Woodcocks' Amended SOF) Moreover, Shimko wrote a letter to defendants on 3/4/03, about one month after he tried to negotiate the last check, claiming that defendants had given him a total of $112,500 in bad checks. (Ex. A to Woodcocks' Supplemental SOF). In the response to summary judgment, Shimko and Welling offer no explanation why they have continued to assert claims for $78,000 in excess charges for work that Welling did as a law clerk. Shimko testified in his deposition that he has known since 2003 that Welling should have been billed at $125 per hour as an unlicensed law clerk instead of $350 per hour. Nevertheless, for the last five years, Shimko and Welling have represented before two federal district courts and the Ninth Circuit that their firm is entitled to the full alleged balance of $359,000. This morning, Shimko called me and stated that he now felt free to cooperate with and give information to the federal prosecutor in the criminal case against the Woodcocks and

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other defendants. Shimko told me that he has a lot of damaging information he can give the prosecutor. He contends that the Woodcocks' bar complaint waived the Woodcocks' attorney-client privilege. I wrote back that the privilege had not been waived and his implicit threat was inappropriate. A copy of my letter is attached.

Richard J. McDaniel Attorney at Law

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EXHIBIT D
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Living Our Legacy 1933-2008

STATE BAR °FARIZONA
75th Anniversary

Assistant's Direct Line: (602) 340-7386 May 22, 2008 Richard J. McDaniel Attorney at Law 11811 N Tatum Blvd. Suite 1051 Phoenix, Arizona 85028-0001 Re: File No. 08-0760 Timothy A. Shimko, Respondent

Dear Mr. McDaniel: We have received your correspondence dated April 24, 2008, regarding possible ethical impropriety by the above-named lawyer. This lawyer is not licensed to practice law in Arizona. However, because he apparently is licensed elsewhere, and appears to be practicing law in Arizona, Mr. Shimko falls within the State Bar's jurisdiction for disciplinary purposes. I will be investigating your allegations. A file number has been assigned to this matter. Please use this number on any future communications with this office. If your complaint involved more than one lawyer, you will receive separate correspondence for each. I have forwarded a copy of your correspondence to the lawyer with a request that a prompt, written response be submitted. In most cases, I will send you a copy of the lawyer's response for your review and further comment. At the conclusion of the preliminary investigation, I will summarize the case and present it for review by all bar counsel. If, after this review, a determination is made that no ethical violation can be proven by clear and convincing evidence, the charge will be dismissed and you will be notified in writing. You are entitled to appeal a dismissal decision made by bar counsel. All recommendations other than dismissal will be referred to the Probable Cause Panelist, who may issue one of the following orders: stay of the proceedings, informal reprimand, or filing of a formal complaint. You will be notified of the Panelist's decision. If the Probable Cause Panelist orders that formal proceedings be initiated, bar counsel will be assigned to prosecute the lawyer on behalf of the State Bar. You, as a Complainant in this proceeding, are not a party. Decisions as to the disposition of the case are influenced by the quality and quantity of the available evidence, prior decisions and the ABA Standards for Imposing Lawyer Sanctions. Our burden of proof -- clear and convincing evidence -- is a heavy one that is always considered in making decisions about whether and how to proceed on a complaint.

Case 2:04-cv-00078-FJM Street ' Suite 219, Phoenix, AZ 85016-6288 Page 17 of 27 Filed 06/27/2008 4201 N. 24th Document 200 PH: 602-252-4804 · FAX: 602-271-4930 ' PUBLIC: www.azbar.org . MEMBERS: www.myazbar.org

Richard J. McDaniel May 22, 2008 Page 2 Lawyer ethics and disciplinary procedures are governed by Rules of the Supreme Court of Arizona, found in Volume 17A of the Arizona Revised Statutes. See generally Rules 41 through 80, Arizona Rules of the Supreme Court. The State Bar is bound by those Rules in deciding whether a lawyer has committed an ethical violation and whether the lawyer can be sanctioned for that violation. If you have access to the Internet, the Arizona Rules of Professional Conduct may also be found at the Supreme Court's website at http://www.supreme.state.az.us (Opinions/Rules/Orders). If you intend to pursue the lawyer in civil or criminal proceedings, you should not delay because of the pending State Bar proceedings. At this point, your complaint is not open to the public. However, the State Bar may confirm to anyone inquiring that a complaint against the above-referenced lawyer has been received and is being investigated. When the State Bar has completed its investigation and a decision made on whether to pursue formal charges, then your submissions, the lawyer's submissions and, perhaps, other documents in the file become open to the public. Please be aware that anything you send to this office becomes the property of the State Bar of Arizona and cannot be returned to you. If you do request copies of any documents not otherwise provided to you by the State Bar of Arizona, you will be required to pay a copy charge of $.50 per page, payable in advance. If you want to keep a copy of any documentation you provide to the State Bar of Arizona, it is advisable to have copies made prior to sending it to the State Bar. The State Bar receives more than 2,000 complaints every year. We cannot give thorough consideration to each complaint without your patience and full cooperation. To help us conduct our investigations as quickly as possible, please limit your telephone calls and submit any additional information about the matter in writing. Thank you for bringing this matter to the attention of the State Bar. Please be assured that it will receive our careful consideration, and appropriate action will be taken within the rules and procedures established by the Supreme Court of Arizona. Sincerely,

Russell J. Anderson Staff Bar Counsel RJA/abd

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Living Our Legacy 1933-2008

Assistant's Direct Line: (602) 340-7386 May 22, 2008

Richard J. McDaniel Attorney at Law 11811 N. Tatum Blvd. Suite 1051 Phoenix, Arizona 85028-0001 Re: File No. 08-0759 David A. Welling, Respondent

Dear Mr. McDaniel: We have received your correspondence dated April 24, 2008, regarding possible ethical impropriety by the above-named lawyer. This lawyer is not licensed to practice law in Arizona. However, because he apparently is licensed elsewhere and appears to be practicing law in Arizona, Mr. Welling falls within the State Bar's jurisdiction for disciplinary purposes. I will be investigating your allegations. A file number has been assigned to this matter. Please use this number on any future communications with this office. If your complaint involved more than one lawyer, you will receive separate correspondence for each. I have forwarded a copy of your correspondence to the lawyer with a request that a prompt, written response be submitted. In most cases, I will send you a copy of the lawyer's response for your review and further comment. At the conclusion of the preliminary investigation, I will summarize the case and present it for review by all bar counsel. If, after this review, a determination is made that no ethical violation can be proven by clear and convincing evidence, the charge will be dismissed and you will be notified in writing. You are entitled to appeal a dismissal decision made by bar counsel. All recommendations other than dismissal will be referred to the Probable Cause Panelist, who may issue one of the following orders: stay of the proceedings, informal reprimand, or filing of a formal complaint. You will be notified of the Panelist's decision. If the Probable Cause Panelist orders that formal proceedings be initiated, bar counsel will be assigned to prosecute the lawyer on behalf of the State Bar. You, as a Complainant in this proceeding, are not a party. Decisions as to the disposition of the case are influenced by the quality and quantity of the available evidence, prior decisions and the ABA Standards for Imposing Lawyer Sanctions. Our burden of proof -- clear and convincing evidence -- is a heavy one that is always considered in making decisions about whether and how to proceed on a complaint.

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Richard J. McDaniel May 22, 2008 Page 2 Lawyer ethics and disciplinary procedures are governed by Rules of the Supreme Court of Arizona, found in Volume 17A of the Arizona Revised Statutes. See generally Rules 41 through 80, Arizona Rules of the Supreme Court. The State Bar is bound by those Rules in deciding whether a lawyer has committed an ethical violation and whether the lawyer can be sanctioned for that violation. If you have access to the Internet, the Arizona Rules of Professional Conduct may also be found at the Supreme Court's website at http://www.supreme.state.az.us (Opinions/Rules/Orders). If you intend to pursue the lawyer in civil or criminal proceedings, you should not delay because of the pending State Bar proceedings. At this point, your complaint is not open to the public. However, the State Bar may confirm to anyone inquiring that a complaint against the above-referenced lawyer has been received and is being investigated. When the State Bar has completed its investigation and a decision made on whether to pursue formal charges, then your submissions, the lawyer's submissions and, perhaps, other documents in the file become open to the public. Please be aware that anything you send to this office becomes the property of the State Bar of Arizona and cannot be returned to you. If you do request copies of any documents not otherwise provided to you by the State Bar of Arizona, you will be required to pay a copy charge of $.50 per page, payable in advance. If you want to keep a copy of any documentation you provide to the State Bar of Arizona, it is advisable to have copies made prior to sending it to the State Bar. The State Bar receives more than 2,000 complaints every year. We cannot give thorough consideration to each complaint without your patience and full cooperation. To help us conduct our investigations as quickly as possible, please limit your telephone calls and submit any additional information about the matter in writing. Thank you for bringing this matter to the attention of the State Bar. Please be assured that it will receive our careful consideration, and appropriate action will be taken within the rules and procedures established by the Supreme Court of Arizona. Sincerely,

Russell J. Anderson Staff Bar Counsel RJA/abd

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Living Our Legacy 1933-2008

STATE BAR ,.. oFARIZONA
75th Anniversary

Assistant's Direct Line: (602) 340-7386 June 2, 2008

Richard J. McDaniel 11811 N. Tatum Blvd., Suite 1051 Phoenix, Arizona 85028-0001 Re: File No. 08-0759 David A. Welling, Respondent

Dear Mr. McDaniel: Thank you for the latest information you have provided. We believe we have all the information we need to process the initial investigation. However, should we require any additional information, we will contact you at that time. Sincerely,

Russell J. Anderson Staff Bar Counsel RJA/aes

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www.azbar.org

MEMBERS:

Living Our Legacy 1933-2008

STATE BAR `? 0FARIZONA
75th Anniversary

Assistant's Direct Line: (602) 340-7386 June 2, 2008

Richard J. McDaniel 11811 N. Tatum Blvd Suite 1051 Phoenix, Arizona 85028-0001 Re: File No. 08-0760 Timothy A. Shimko, Respondent

Dear Mr. McDaniel: Thank you for the latest information you have provided. We believe we have all the information we need to process the initial investigation. However, should we require any additional information, we will contact you at that time. Sincerely,

Russell J. Anderson Staff Bar Counsel RJA/aes

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EXHIBIT E
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mtsciplti xrg Clmmsed
THE SUPREME COURT OF OHIO
DISCIPLINARY COUNSEL

JONATHAN E. COUGHLAN
FIRST ASSISTANT DISCIPLINARY COUNSEL

LORI J. BROWN

250 CIVIC CENTER DRIVE, SUITE 325 COLUMBUS, OHIO 43215-7411 (614) 461-0256 FAX (614) 461-7205 1-800-589-5256

ASSISTANT DISCIPLINARY COUNSEL

STACY SOLOCHEK BECKMAN ROBERT R. BERGER JOSEPH M. CALIGIURI CAROL A. COSTA HEATHER L. HISSOM PHILIP A. KING AMY C. STONE

June 6, 2008 PERSONAL AND CONFIDENTIAL Richard J. McDaniel, Esq. 11811 N. Tatum Boulevard #1051 Phoenix, Arizona 85028 Re: David Welling, Esq. ODC File No. A8-1224 Pending Case: Shimko & Piscitelli v. Woodcock, et al., U.S. District Court for the District of Arizona Case No. CIV 04-78-FJM

Dear Mr. McDaniel: The purpose of this correspondence is to advise you of one of the policies of the Office of Disciplinary Counsel as it pertains to the grievance that you filed against Attorney David Welling. For various reasons it is not possible for an investigation to proceed beyond a certain point if there is litigation pending in the judicial system that involves the parties and is relevant to the facts alleged in the grievance or the circumstances surrounding the grievance. Although it may be possible to retain such grievances on an "active" status in this office by requesting the complainant, respondent, and/or the clerk of the court to provide us with periodic status updates, this practice would cause all parties to expend a disproportionate amount of time on procedural matters. It would also create a false impression regarding the amount of time the investigation is taking to complete. In order to prevent these problems while continuing to ensure that such grievances are thoroughly investigated when all judicial proceedings have been completed, the procedure set forth hereafter should be followed. When this office determines that a grievance has been received where there is closely related pending litigation, the file will be closed and the complainant and respondent so notified. When all related litigation has been completed, the grievance may be resubmitted for a determination on the merits.

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Richard J. McDaniel, Esq. Page Two June 6, 2008

In accordance with the foregoing, our file on your grievance against Attorney David Welling is closed and you may notify this office upon the conclusion (including appeals) of the above-referenced lawsuit. If you choose to resubmit your complaint, you must include copies of the final judgment entered in the aforementioned case and any entry that might address the issues raised in your complaint. Thank you for your cooperation. Sincerely,

Amy tone Assi to t Disciplinary Counsel ACS:Ij cc: David Welling, Esq.

Case 2:04-cv-00078-FJM

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Pizrip huxrg Teamed
THE SUPREME COURT OF OHIO
DISCIPLINARY COUNSEL

JONATHAN E. COUGHLAN
FIRST ASSISTANT DISCIPLINARY COUNSEL

LORI J. BROWN

250 CIVIC CENTER DRIVE, SUITE 325 COLUMBUS, OHIO 43215-7411 (614) 461-0256 FAX (614) 461-7205 1-800-589-5256

ASSISTANT DISCIPLINARY COUNSEL

STACY SOLOCHEK BECKMAN ROBERT R. BERGER JOSEPH M. CALIGIURI CAROL A. COSTA HEATHER L. HISSOM PHILIP A. KING AMY C. STONE

June 6, 2008

PERSONAL AND CONFIDENTIAL Richard J. McDaniel, Esq. 11811 N. Tatum Boulevard #1051 Phoenix, Arizona 85028 Re: Timothy Shimko, Esq. ODC File No. A8-1223 Pending Case: Shimko & Piscitelli v. Woodcock, et at, U.S. District Court for the District of Arizona Case No. CIV 04-78-FJM Dear Mr. McDaniel: The purpose of this correspondence is to advise you of one of the policies of the Office of Disciplinary Counsel as it pertains to the grievance that you filed against Attorney Timothy Shimko. For various reasons it is not possible for an investigation to proceed beyond a certain point if there is litigation pending in the judicial system that involves the parties and is relevant to the facts alleged in the grievance or the circumstances surrounding the grievance. Although it may be possible to retain such grievances on an "active" status in this office by requesting the complainant, respondent, and/or the clerk of the court to provide us with periodic status updates, this practice would cause all parties to expend a disproportionate amount of time on procedural matters. It would also create a false impression regarding the amount of time the investigation is taking to complete. In order to prevent these problems while continuing to ensure that such grievances are thoroughly investigated when all judicial proceedings have been completed, the procedure set forth hereafter should be followed. When this office determines that a grievance has been received where there is closely related pending litigation, the file will be closed and the complainant and respondent so notified. When all related litigation has been completed, the grievance may be resubmitted for a determination on the merits.

Case 2:04-cv-00078-FJM

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Richard J. McDaniel, Esq. Page Two June 6, 2008

In accordance with the foregoing, our file on your grievance against Attorney Timothy Shimko is closed and you may notify this office upon the conclusion (including appeals) of the above-referenced lawsuit. If you choose to resubmit your complaint, you must include copies of the final judgment entered in the aforementioned case and any entry that might address the issues raised in your complaint. Thank you for your coo peration. Sincerely, ci Am one Asst Disciplinary Counsel i r ACS:Ij cc: Timothy Shimko, Esq.

Case 2:04-cv-00078-FJM

Document 219

Filed 06/27/2008

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