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Andrew Francis Hiblar Jr. (WSBA No. 7648, admitted 1977), of University Place, was suspended for nine months, effective August 1, 2010, by order of the Washington State Supreme Court following approval of a stipulation. This discipline resulted from conduct involving trust account irregularities and failing to produce records in response to a subpoena.
Mr. Hiblar is a solo practitioner who practiced primarily in the area of family law. Since at least 2002, Mr. Hiblar personally made all deposits to and withdrawals from his trust account, and maintained all trust account records. The Association's auditor conducted an audit of Mr. Hiblar's trust account covering the time period August 15, 2006, through December 31, 2008 (audit period). During that time period, Mr. Hiblar often received advance fee deposits and advance cost deposits.
Between December 28, 2006, and January 30, 2009, four checks in amounts ranging between $23 and $750 were presented for payment against Mr. Hiblar's trust account. Two of the checks were dishonored and returned by the bank due to insufficient funds in the account. Two other checks were paid by the bank, but resulted in negative trust account balances. One of the returned checks was presented a second time for payment, paid by the bank, and resulted in a negative trust account balance. In March 2008 and May 2008, two merchant withdrawals, for $65 and $25 respectively, were presented for payment against insufficient funds in Mr. Hiblar's trust account. In February 2009, two instruments, each in the amount of $25, were presented for payment against Mr. Hiblar's trust account and were dishonored by the bank due to insufficient funds in the account. With the exception of one of the overdrafts, Mr. Hiblar did not report any of the overdrafts to the Association required by ELC 15.4(d).
During the audit period, Mr. Hiblar did not maintain a check register or client ledgers for his trust account. At his February 13, 2008, deposition by the Association, Mr. Hiblar produced a check register for January 2008 and two client ledgers. However, Mr. Hiblar did not maintain check registers before or after January 2008, and he created the client ledgers in response to the Association's subpoena. Mr. Hiblar did not continue to maintain any client ledgers after the deposition. He acknowledged that, for his trust account, he has not maintained client ledgers or reconciled check registers to his bank statements since 2002. Mr. Hiblar further acknowledged that he has never reconciled check registers to client ledgers, maintained documents supporting deposits to his trust account, or maintained complete records supporting disbursements from his trust account. During the audit period, Mr. Hiblar did not maintain records that allowed determination of the ownership of all funds in his trust account at all times.
On November 29, 2007, the Association sent Mr. Hiblar a letter notifying him that his handling of client funds violated the Rules of Professional Conduct. The letter directed Mr. Hiblar to review specific rules and the Association's publication Managing Client Trust Accounts. After receiving the letter, Mr. Hiblar continued to follow his usual practice and did not bring his trust account records into compliance with the rules.
During the audit period, Mr. Hiblar wrote 57 checks, totaling $22,530, payable to "Cash." He did not maintain records identifying the recipients of the cash withdrawals or the client matters for which the disbursements were made. On eight occasions during the audit period, Mr. Hiblar deposited a check to his trust account and immediately received cash back from the bank. On two occasions, in October 2006 and December 2006, Mr. Hiblar's trust account was short in client funds. Because of Mr. Hiblar's failure to maintain adequate trust account records, the Association's auditor was unable to determine whether Mr. Hiblar's trust account had shortages on other occasions and was unable to ascertain whether Mr. Hiblar delivered to clients and third parties all funds that they were entitled to receive.
During the audit period, Mr. Hiblar withdrew fees from his trust account without first notifying clients in writing that he intended to withdraw the funds. He did not maintain complete records showing the amount of fees earned, the amount of fees disbursed from his trust account, or the clients for whom the fees were disbursed. On nine occasions during the audit period, Mr. Hiblar deposited his own funds in the form of rent checks totaling $7,878 to his trust account and deposited earned fees to his trust account when clients paid outstanding fees by credit card. During the audit period, Mr. Hiblar paid personal and business expenses directly from his trust account, failed to maintain records demonstrating that he was entitled to funds he disbursed from his trust account, and failed to maintain records identifying the client matters for which the funds were purportedly earned.
Mr. Hiblar also failed to promptly and fully respond to the Association's requests for information and records during the grievance investigation, requiring the Association to subpoena Mr. Hiblar for five depositions. At each deposition, Mr. Hiblar agreed to produce information requested by the Association following his deposition, but did not do so. To date, Mr. Hiblar has not fully responded to the Association's requests.
Mr. Hiblar's conduct violated RPC 1.15A(c)(1), requiring a lawyer to hold property of clients and third persons separate from the lawyer's own property and to deposit and hold in a trust account funds subject to this Rule pursuant to the rules; RPC 1.15A(h)(1), prohibiting a lawyer from depositing funds belonging to the lawyer in a trust account except as allowed by the rules; RPC 1.15A(h)(2), requiring a lawyer to keep complete records as required by Rule 1.15B; RPC 1.15A(h)(3), allowing a lawyer to withdraw trust account funds when necessary to pay client costs, and to withdraw earned fees from the trust account only after giving reasonable notice to the client of the intent to do so through a billing statement or other document; RPC 1.15A(h)(4), requiring receipts to be deposited intact; RPC 1.15A(h)(5), requiring all withdrawals to be made only to a named payee and not to cash, and to be made by check or by bank transfer; RPC 1.15A(h)(6), requiring trust account records to be reconciled as often as bank statements are generated or at least quarterly pursuant to Rule 1.15B(a)(2); RPC 1.15A(h)(8), prohibiting disbursements on behalf of a client or third person from exceeding the funds of that person on deposit or the funds of a client or third person being used on behalf of anyone else; RPC 1.15B, requiring a lawyer to maintain current trust account records, in electronic or manual form, for at least seven years and to include certain minimum requirements in the maintenance of the records; and RPC 8.4(l), prohibiting a lawyer from violating a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter (here, failing to notify the Association of the overdraft and failing to cooperate with the Association's investigation).
Marsha Matsumoto represented the Bar Association. Mr. Hiblar represented himself. Jane B. Risley was the hearing officer. |