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S. Richard Hicks (WSBA No. 6612, admitted 1976), of Normandy Park, was suspended for two years, effective August 27, 2009, by order of the Washington State Supreme Court following an appeal. This discipline resulted from conduct involving trust account irregularities, failure to maintain complete records of all client funds coming into his possession, and misrepresentation. For further information, see In re Disciplinary Proceeding Against Hicks, 166 Wn.2d 774, 214 P.3d 897 (2009). S. Richard Hicks is to be distinguished from Judge Richard David Hicks of Olympia.
Following a series of overdrafts on his trust account between May and June 2005, the Bar Association audit manager conducted an audit of Mr. Hicks’s trust account, covering the time period June 2004 through June 2006. During the audit period, Mr. Hicks was found to have failed to maintain adequate records regarding client funds in his possession, failed to deposit and maintain all client funds in trust (by failing to deposit into trust advance fees or cost deposits, and by having a shortage in the account), and deposited lawyer funds into his pooled IOLTA trust account.
In 1994, Mr. Hicks entered into a contingent fee arrangement with client S.E.; the terms of the agreement were one-third of the recovery plus costs. S.E.’s matter was settled for $10,000 in 1995 and the case was dismissed. In 1999, Mr. Hicks entered a judgment in favor of S.E. in the amount of $12,612.95. From 1998 until November 2004, Mr. Hicks collected sporadic payments, from which he disbursed two-thirds to S.E. and retained one-third for his fees. On an isolated occasion, in November 2004, client S.E. offered to let Mr. Hicks keep the entire payment of $600 received as his fees (two-thirds of which would be $400). In March 2005, Mr. Hicks received an additional payment and informed S.E., who informed Mr. Hicks that he wanted to return to the original payment arrangement; Mr. Hicks disbursed the payment per the agreement, two-thirds to S.E. and one-third as his own fees. In his March 29, 2005, letter to S.E., Mr. Hicks stated, inter alia: “Normally in a settlement such as this, the attorney deducts the whole fee at the front end....” In the same letter, Mr. Hicks disbursed a check representing two-thirds of the most recent payment. RPC 1.5(c) prohibits a lawyer from deducting the whole fee at the beginning of a series of payments. Mr. Hicks was unaware of RPC 1.5(c) in November 2004. During the course of the audit, Mr. Hicks was made aware that, despite the voluntary offer of client S.E., the retention of the $400 violated RPC 1.5(c). Mr. Hicks repaid the $400 at 12 percent interest to S.E. on December 16, 2006.
The Bar Association’s Office of Disciplinary Counsel (ODC) opened a grievance against Mr. Hicks as a result of a January 14, 2005, overdraft of his trust account. The Bar Association requested that Mr. Hicks provide an explanation of the overdraft. In response, Mr. Hicks provided a letter dated January 28, 2005, in which he stated that the overdraft occurred “as a result of an oversight, in failing to record into the computer a check drawn against the account and thereafter making a separate check payment to a client....” At the time of the overdraft, the only funds in the account belonged to one client (S.B.) and all payments were to or for the benefit of that one client. Also, Mr. Hicks did not record trust account transactions in the computer at that time and, by the January 14, 2005, overdraft or January 28, 2005, letter, there were no client funds in Mr. Hicks’s trust account. The funds in the trust account were Mr. Hicks’s own funds. The funds given to S.B. were unrelated to Mr. Hicks’s representation of her, and were paid as a result of Mr. Hicks’s personal obligation to S.B., not as payments to a client. At a deposition taken by disciplinary counsel on December 18, 2006, in connection with this grievance, Mr. Hicks testified that he “fudged things” when he responded to the Association’s inquiry in January 2005. By “fudg[ing] things,” Mr. Hicks meant that the information was inaccurate and that “the reading of [the letter is] different than, you know, the facts.” At hearing, Mr. Hicks acknowledged that he “wasn’t being fully cooperative” when he wrote the letter. Based on the January 2005 letter, the Association dismissed the pending grievance, which it would not have done if the auditor was aware that Mr. Hicks had no client funds in his account at the time of the overdraft.
Mr. Hicks’s conduct violated former RPC 1.14(a), requiring that all funds of clients paid to a lawyer or law firm be deposited into one or more identifiable interest-bearing trust accounts and no funds of the lawyer be deposited therein; RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds, securities, and other properties of a client coming into possession of the lawyer and render appropriate accounts to his or her client regarding them; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and ELC 5.3(e)(1), requiring a lawyer to furnish in writing, or orally if requested, a full and complete response to inquiries and questions [made under these rules for information relevant to grievances or matters under investigation].
Sachia Stonefeld Powell represented the Bar Association at hearing. Scott G. Busby represented the Bar Association on appeal. Mr. Hicks represented himself. Susan H. Amini was the hearing officer. |