CHARLESTON – The West Virginia Supreme Court of Appeals has imposed sanctions on a Keyser attorney for alleged violations of misconduct.
Timothy M. Sirk’s law license will be suspended for three years, according to the Feb. 15 court opinion.
“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,” Justice Margaret Workman wrote in the majority opinion. “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.”
Sirk was admitted to the West Virginia Bar in 1983 and had previously had no disciplinary history.
The matter involves two formal charges filed against Sirk that proceeded to hearing before the Hearing Panel Subcommittee in May and several witnesses testified, including the two complainants, as well as Sirk, who appeared pro se.
The HPS filed its report with the Supreme Court on September.
The first complainant, known as Client #1, had been friends with Sirk for more than 50 years and had previously retained Sirk for a variety of legal matters. Following the sale of Client #1’s mother’s home, Sirk opened a trust account at M&T Bank in Keyser and deposited $30,068 from the sale of the home in August 2013.
Client #1 and Sirk had a verbal agreement at the time the account was opened that Sirk could borrow from the account as long as he repaid the money, however, they never discussed the specific terms of the agreement and Sirk did not advise Client #1 to seek legal counsel, nor did Client #1 provide written consent for Sirk to withdraw funds.
Client #1 visited the bank in January 2014 and discovered that Sirk had withdrawn approximately $16,800 from the account and he left to go to Sirk’s office to confront him.
Sirk informed Client #1 that he was dealing with personal problems, including children battling drug addictions and that he would repay the money. In July 2014, he returned $16,000 and, approximately one month later, paid the remaining $800.
At the hearing held before HPS, Sirk expressed remorse and apologized to Client #1 and 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 and he turned to gambling and contemplated divorce.
In September 2013, the second complainant, known as Client #2, retained 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 and Sirk was still working on the matter ot that there were cases ahead of hers that he would get to it soon.
In September 2014, Sirk met with Client #2 and assured her that they were reading 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 Sirk advising that he was “winding down” his practice and would be closing the office soon.
In the letter, 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.
In December 2014, Client #2 texted Sirk to inform him that if she did not hear back from him soon, she would file a civil suit against him and she received a voicemail the following day that he did not file bankruptcy for her that he did not have the money to give back to her at that time for her retainer fee.
Client #2 filed a suit against Sirk in magistrate court and he confessed judgment and he eventually returned half of the retainer fee, but failed to return the rest and failed to answer her telephone calls.
The HPS concluded that Sirk violated multiple rules and ordered Sirk to repay the remainder of Client #2’s retainer fee.
The Office of Disciplinary Counsel filed a brief on Nov. 22 and agreed with the HPS’s recommended sanctions. On Jan. 10, the ODC moved the Supreme Court to enhance the previously requested sanctions because it felt Sirk committed an additional aggravating factor when he failed to file a brief in the case.
The Supreme Court imposed a three-year suspension on Sirk’s law license.
“Further, we adopt the remaining recommendations made to this Court by the HPS,” Workman wrote. “We believe these sanctions will accomplish the goals of our disciplinary system by punishing Mr. Sirk, restoring public confidence in the ethical standards of our profession and serving as a deterrent to other members of the State Bar.”
W.Va. Supreme Court case number: 16-1179