Free Supplement - District Court of Arizona - Arizona

1 Roger L. Cohen, #004409
Kathi Mann Sandweiss, #011078
2 JABURG & WILK, P.C.
3200 North Central Avenue, Suite 2000
3 Phoenix, Arizona 85012
4 (602) 248-1000
5 Attorneys for Defendants Ross
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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SHIMKO & PISCITELLI, etal.,
10 Case No: CIV—04-78-PHX-FJM
Plaintiffs,
ll ROSS DEFENDANTS’
v. SUPPLEMENTAL STATEMENT OF
12 FACTS IN SUPPORT OF MOTION TO
DAVID GOLDFARB; RICHARD ROSS, DISMISS CLAIMS AND MOTION FOR
13 et al. SUMMARY JUDGMENT
H 14 Defendants.
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§ g E § 16 Defendants Richard and Marcia Ross (the "Ross Defendants") submit the
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§ E § “° 17 following Supplemental Statement of Facts in Support of Motion to Dismiss Claims and
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§ E 18 Motion for Summary Judgment.
19 1. In his deposition on March 24, 2008, Plaintiff Timothy Shimko states that
20 "the real problem here was Goldfarb" and "Goldfarb is the one who is doing all the nature
21 of misrepresenting, okay, and Goldfarb was the one who’s insisting on paying the shill."
22 (Ex. A, attached hereto, p. 5 8). Shimko admitted that he told Mr. Ross and Mr.
23 Woodcock that their problems were different than the problems of Goldfarb:
24 Q. You were telling one of your clients that their problem
25 had to do with the con uct of another of your clients?
26 A. 1 recognize that to be the case, yeah.
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1 Q. And isn’t it true that that’s exactly the reason why there
is danger in taking on the multiple representation of parties in
2 litigation?
3 A. I don’t know about danger.
4 Q. Isn’t it true that if you had dug into the relationships
and the conduct a little more deeply back in November of
5 2001, you might have recognized that there were potentially
differin interests between Mr. Ross, for example, and Mr.
6 Goldf`arIi‘?
7 A. Well, if my arents had been Swedish, I might be
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8 Swedish. (Id, pp. 58 — 60).
2. Shimko admitted in his deposition that he never talked to the Ross
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Defendants about their personal financial situation, and had no knowledge of the
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individual def`er1dant’s relative financial strength to each other. (Id., pp. 52 — 53).
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3. Shimko never talked to Woodcock Guenther, Ross or Goldfarb about the
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advisability of having separate counsel to make separate agreements, and save their
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individual situations at the expense of the rest of the group. Shimko claimed that "these
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g __ were like the four musketeers. . . in for a penny and they were in for a pound." In fact,
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E gg Shimko acknowledged that he had no idea that each of the individual defendants had
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§ Q C; §?§ eventually hired separate counsel and cut separate deals. (Id., p. 54).
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2 2 E *2 4. Shimko did not recall, during his deposition, whether he ever even reviewed
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Arizona ethical rules pertaining to representing multiple parties in litigation. (Id., Ex. A,
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p. 56). Nor did he recall whether he explained to Mr. Ross the implications of common
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representation, as required by ER 1.7. (Id., p. 58).
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5. Shimko admitted during his deposition that he never discussed conflict
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issues with his former clients, because he "didn’t see any conflict issues to be discussed."
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(Id., p. 51). He never advised Mr. Ross that any confidential attorney/client
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communications they had would be shared or shareable with the other Defendants. (Id., p.
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52).
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6. At his deposition, Shimko could not recall whether there was a writing
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where the former clients agreed to repay the loan or where it was explained how and when
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ase 2:04-cv—00078-FJIVI Document 214 Filed 05/23/2008 Page 2 of 4

l the money would be repaid. (Id., p. 64). He admitted that he did not advise his former
2 clients to seek independent counsel. (Id).
3 7. With respect to the investment in Aztec Medical, Shimko undertook legal
4 work in exchange for a percentage of interest in the venture. (Id., p. 67). Shimko did not
5 recall whether he disclosed in writing to the clients the terms of the agreement, as required
6 by ER 1.8. (Id., p. 68). Nor did Shimko advise his former clients that this was a business
7 transaction with a client and that they needed to have the advice of independent counsel
8 before they agreed to it. (Id., p. 69).
9 DATED this K day of May, 2008.
10 JABURG & WILK, .c.
11 gi
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Roger L. Cohen
13 Kathi Mann Sandweiss
14 Attorneys for Defendants
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9203-2/KMS/KMSf656889_vl
Case 2:04-cv—00078-FJIVI Document 214 Filed 05/23/2008 Page 3 of 4

1 CERTIFICATE OF SERVICE
2 I hereby certify that on May Z5", 2008, I electronically transmitted the attached
3 document to the Clerk’s Office using the CM/ECF system for tiling, and for transmittal of
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5 a Notice of Electronic tiling to the following CM/ECF registrants:
6 David A. Welling
7 TIMOTHY SHIMKO & ASSOCIATES
2010 Huntington Building
8 925 Euclid Avenue
Cleveland, Ohio 441 15
9 Attorneys for Plaintiffs
10 David and Rhona Goldfarb
11437 N. 53' Place
11 Scottsdale, Arizona 8525
Pro Per Defendants Goldfarb
12 Richard J. McDaniel
13 11811 N. Tatum Blvd., Suite 1051
Phoenix, Arizona 85208
14 Attorney for Woodcock Defendants
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