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Jeffrey R. Bivens (WSBA No. 34100, admitted 2003), of Vancouver, Washington, was suspended for 18 months, effective August 21, 2008, by order of the Washington State Supreme Court following approval of a stipulation. This discipline is based on conduct in two matters involving charging unreasonable fees, conflicts of interest, failure to preserve the identity of clients' property, and dishonest conduct.
Matter No. 1: Mr. Bivens was hired by a client on April 28, 2004, to evict a woman from the client's estranged husband's house after the husband committed suicide. At the time, Mr. Bivens worked full-time as an associate for a law firm (the firm). The client paid the firm two advance fee deposits that totaled $1,550. The firm deposited the client's advance fee deposits in its trust account and debited against the funds for fees and costs until the funds were exhausted. Because the house was the separate property of the client's husband, the husband's estate needed to be admitted to probate and the client appointed personal administrator before she had the power to evict the tenant. Mr. Bivens filed a petition to have letters of administration of the husband's estate issued to the client, which petition was granted on May 11, 2004. Mr. Bivens filed an eviction action on July 15, 2004. The husband's house was vacated three days later and the client assumed control of it. Mr. Bivens used the firm's resources to prepare and file the probate and eviction actions.
When Mr. Bivens was retained, the firearm used by the client's husband to commit suicide was being retained in the Clark County Sheriff's Office evidence room. Mr. Bivens offered to purchase the firearm and credit the value of it to the client's account at the firm in lieu of fees. The client agreed and gave Mr. Bivens a release that allowed him to take possession of the firearm from the Sheriff's Office. Mr. Bivens kept the firearm and attempted, unsuccessfully, to sell it. Mr. Bivens did not credit the value of the firearm to the client's account at the firm and did not pay the client or the firm for the firearm. Mr. Bivens did not arrange for the client to receive any refund of the monies she had already paid the firm.
Matter No. 2: A husband and wife (clients) hired the firm to represent them in pursuing a bankruptcy. Mr. Bivens was assigned to handle the case and represented the clients until he left the firm in June 2005. The clients paid the firm a $900 advance fee deposit on March 14, 2005. The firm deposited this amount in its trust account and debited against it for fees and costs until it was exhausted. The clients did not pay any additional money to the firm and were not billed by the firm for any work in excess of that covered by the $900 advance fee deposit. The clients' home was mortgaged. After their bankruptcy action was filed, the mortgage company moved for relief from the automatic stay. Mr. Bivens replied to this motion on behalf of the clients. He told the clients they owed the firm the $209 filing fee in addition to the $900 they had already paid, and that responding to the motion for relief from stay cost $600 more. Mr. Bivens did not bill the $800 in additional fees to the clients through the firm. The clients told him they were unable to pay the additional fees and, in lieu of the $800, suggested they provide Mr. Bivens items from a pawn shop they owned. Mr. Bivens agreed. On June 7 and 9, 2005, Mr. Bivens took possession of the following items from the pawn shop, with a value totaling $807: a Winchester 1300 12-gauge pump-action shotgun; a Ruger .22 caliber semi-automatic rifle; a block of .22 caliber ammunition; a used gun bag; a DeWalt reciprocal saw; and a fly rod. Bivens did not turn these items over to or pay the firm the value of the items, and he did not credit $807 to the clients' trust ledger.
In both matters, under firm policy, Mr. Bivens was required to turn property that he accepted in lieu of the firm's fees over to the firm or pay the firm the value of the property so it could be credited to the client's account. The firm did not agree that Mr. Bivens could keep the items and not pay the value of them to the firm.
Mr. Bivens's conduct violated RPC 1.5(a), requiring that a lawyer's fee be reasonable; RPC 1.8(a), prohibiting a lawyer who is representing a client in a matter from entering into a business transaction with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client unless the transaction and terms on which the lawyer acquired the interest are fair and reasonable, the client is given a reasonable opportunity to seek the advice of independent counsel, and the client consents; RPC 1.14(b), requiring a lawyer to maintain complete records of all funds, securities, or other properties in the possession of the lawyer and render appropriate accounts to his or her client regarding them; and RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
M. Craig Bray represented the Bar Association. Timothy D. Blue represented Mr. Bivens. |