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Robert J. Lincoln (WSBA No. 15170, admitted August 5, 1985), of King County, has been suspended for 12 months pursuant to a stipulation approved by the Disciplinary Board on January 15, 1999 and by the Supreme Court on February 9, 1999. The suspension is based on multiple acts of misconduct.
First Matter: Mr. Lincoln represented a father in a residential placement dispute in Chelan County Superior Court. Prior to the trial, the client’s mother, Mrs. S, was involved in an altercation with the children’s mother. Based on this altercation, Mr. Lincoln filed a motion to have the children reside primarily with the father. In support of this motion, Mr. Lincoln submitted Mrs. S’s declaration. Mr. Lincoln signed Mrs. S’s name to this declaration and placed his initials next to the signature. Mr. Lincoln believed that his initials were legible. Neither opposing counsel nor the judge recognized Mr. Lincoln’s initials. Mr. Lincoln did not tell opposing counsel or the judge that he signed the declaration. Mrs. S stated that she did not know that Mr. Lincoln was signing the declaration for her. Although Mr. Lincoln believed that the declaration was accurate, Mrs. S stated that it had some inaccuracies. During the trial, Mrs. S testified that she did not sign the declaration. Mr. Lincoln then explained to the Court that he signed the declaration.
By filing with the court a declaration containing negligently false statements, and signing his name on behalf of a witness without bringing this fact to the Court’s and opposing counsel’s attention, Mr. Lincoln violated RPC 3.3, prohibiting making a false statement of fact to a tribunal.
Second Matter: In April 1995, Mr. Lincoln agreed to represent a client in a dissolution. The client paid Mr. Lincoln $500. Mr. Lincoln’s fee agreement stated that $500 was the fee for an uncontested dissolution proceeding. The fee agreement also stated that the fee for a contested case was $3,000, and that it became due immediately. The following handwritten definition of "contested" was included in the fee agreement: "any disagreement or dispute in which the attorney must intervene, mediate or defend, including the intentional act of one spouse to avoid service of process, or any other lack of cooperation, delay, or failure to promptly produce records or documents, or the hiring of an attorney by the other spouse. The word "contested" also includes the client’s behavior in which the client fails to heed the advice of the attorney, compounds problems, or makes the attorney’s efforts more complex or difficult."
The client decided to serve the pleadings on her husband to save the cost of a process server. She left the pleadings and some of her husband’s belongings with a Navy officer, with instructions to deliver the items to her husband. The client also paid Mr. Lincoln a $120 filing fee, which he did not deposit to his trust account. Shortly after this, the client instructed Mr. Lincoln not to proceed with the dissolution and to return all of her fees and costs. Originally, Mr. Lincoln wrote to the client, stating that he would not return any of her money, including the unused filing fee. Mr. Lincoln wrote that the client’s husband had evaded service and, therefore, she owed him the $3,000 contested fee, less the amounts she had already paid. The client filed suit in small claims court. The Court found that all of the fees and costs, including the unused filing fee, were reasonable and allowed Mr. Lincoln to retain the client’s funds. Mr. Lincoln returned the unused filing fee despite the court order.
By failing to place the client’s advance costs into his trust account and by applying these funds to his fees, Mr. Lincoln’s conduct violated RPC 1.14, requiring that advances for costs be deposited into the trust account and that the lawyer preserve the identity of client funds.
Third Matter: Mr. Lincoln agreed to represent the husband in a dissolution action. Mr. Lincoln used the same fee agreement with the $3,000 contested fee clause, but this agreement also set an hourly rate of $125. The client paid $2,500 in fees, in installments, and also exchanged a jewelry box for $500. Mr. Lincoln prepared the petition and summons in late September 1994 and signed the pleadings in mid-October. The petition was filed on November 17, 1994. After many phone calls to Mr. Lincoln, some answered and some not, the client sent Mr. Lincoln a certified letter asking about the status of his case. Mr. Lincoln did not respond to the client’s letter. On December 14, 1994, at a temporary orders hearing, the court awarded $1,000 per month to the wife in child support and maintenance payments, retroactive to November 1, 1994. At this hearing, the court did not have the client’s financial information, because Mr. Lincoln had misfiled this information and had not delivered working copies to the court. Although the client told Mr. Lincoln he could not afford these payments, Mr. Lincoln took no steps to reduce them. The Office of Support Enforcement began garnishing the client’s wages, and eventually he was forced to give up his apartment and move in with friends. In February 1995, the client retained a new lawyer, who successfully reduced the support and maintenance payments.
Mr. Lincoln’s failure to act diligently violated RPC 1.3, requiring lawyers to diligently represent their clients. By failing to answer his client’s questions regarding the status of his case, Mr. Lincoln violated RPC 1.4, requiring that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with the client’s reasonable requests for information. By using a fee agreement allowing Mr. Lincoln to unilaterally determine whether fees would be increased, Mr. Lincoln violated RPC 1.5, requiring reasonable fees.
Fourth Matter: Mr. Lincoln agreed to represent the husband in a dissolution action. He met with the client and his parents. Mr. Lincoln told the client that his fee would be $3,000. This fee would cover legal service up to one year, excluding trial. The client paid Mr. Lincoln $650 in cash, and the parents wrote two checks for $1,175 each, postdating the second. The fee agreement was similar to the one used in the other matters and included the statement "client agrees to pay all expenses including any balance due before entitled to client file." On May 17, 1996, the client and his parents attended a court hearing in the dissolution case. Apparently, the opposing counsel prepared the order and Mr. Lincoln did not explain the order to the client’s and parents’ satisfaction. Over the next two weeks, the client became dissatisfied with Mr. Lincoln’s services, terminated Mr. Lincoln, and requested a refund of unearned fees. The client’s mother stopped payment on the postdated check, without notice to Mr. Lincoln. Mr. Lincoln wrote to the mother in an attempt to collect the additional $1,175. His letter stated that he had the option of taking legal action to collect the check, but he did not follow through.
By failing to adequately explain the court order, Mr. Lincoln violated RPC 1.4, requiring a lawyer to explain a client’s matter to the extent reasonably necessary to permit the client to make informed decisions. By failing to place disputed fees in his trust account, Mr. Lincoln violated RPC 1.14(b)(2), requiring lawyers to place funds belonging in part to the lawyer and in part to the client in the lawyer’s trust account, and to take prompt steps to resolve the dispute. By using a fee agreement allowing Mr. Lincoln to unilaterally determine whether fees would be increased, Mr. Lincoln violated RPC 1.5, requiring reasonable fees.
Fifth Matter: Mr. Lincoln agreed to represent the wife in a dissolution action. The client signed a fee agreement which set a fee of $650 for legal service up to one year, exclusive of trial. The agreement stated that the fee for trial would be $6,500. The client paid Mr. Lincoln $725. The client told Mr. Lincoln that her primary concern in the dissolution was the parenting plan, because her spouse had been arrested for making obscene phone calls to the children’s babysitter. The client requested that the court determine if the spouse was stable enough to have visitation, that this visitation be limited, increase gradually, and that the outcome of the criminal proceeding be considered. The client stated that she had to repeat these fact requests each time she spoke with Mr. Lincoln. Additionally, the client states that she provided Mr. Lincoln with multiple copies of the same documents, including pay stubs and daycare receipts. Mr. Lincoln stated that the client never gave him complete financial information. Mr. Lincoln met with the client in July 1996 in a Bellevue restaurant. The client states that Mr. Lincoln gave her a parenting plan drafted by the opposing lawyer to review, and then he moved to another table to meet with another client. The client stated that although she had questions about the parenting plan, she signed it and dropped it off with Mr. Lincoln, to avoid interrupting his meeting with another client. In August 1996, the client met with Mr. Lincoln to sign the final parenting plan. Apparently, when the client stated that the parenting plan did not address her husband’s arrest, Mr. Lincoln told the client that he believed she was refusing to sign the parenting plan to punish her husband and that this was not proper. Two days later, Mr. Lincoln notified the client in writing that he was withdrawing from her case. The client retained a new lawyer and the court accepted the unchanged parenting plan.
By failing to adequately explain the parenting plan to the client, Mr. Lincoln’s conduct violated RPC 1.4, requiring a lawyer to explain a matter to the extent necessary to permit the client to make an informed decision. By failing to place disputed fees in his trust account, Mr. Lincoln’s conduct violated RPC 1.14(b)(2), requiring lawyers to place funds belonging in part to the lawyer and in part to the client, in the lawyer’s trust account and to take prompt steps to resolve the dispute. By using a fee agreement allowing Mr. Lincoln to unilaterally determine whether fees would be increased, Mr. Lincoln violated RPC 1.5, requiring reasonable fees.
Sixth Matter: Mr. Lincoln met with a client and her father regarding a residential placement issue. The client signed, and the father initialed, a fee agreement setting a fee of $1,150 for a non-contested matter and $3,000 for a contested matter. This agreement used the same definitions of "contested." The fee agreement was similar to the one used in the other cases, but stated that Mr. Lincoln would "advise and assist in all aspects of the case." The father gave Mr. Lincoln a $1,175 check. The client was separated from her spouse, who lived in Florida. In October 1995, the client and her son visited the father in Florida. The parents fought and the client was charged with domestic violence. The father then obtained an injunction from a court in Florida awarding him temporary custody of the son. Mr. Lincoln told the client that he believed that if the father filed for dissolution in Florida, the client would have to litigate the case in Florida with Florida counsel. Over the next few weeks, Mr. Lincoln performed some legal research and spoke to the client and her parents a few times. In January 1996, the father filed for dissolution in Florida. On February 1, 1996, Mr. Lincoln met with the client and her father and told them that the client should retain counsel in Florida, and that he would assist in having the case moved back to Washington. The client and her father demanded all of their money back and Mr. Lincoln declined their request.
By failing to place disputed fees in his trust account, Mr. Lincoln violated RPC 1.14(b)(2), requiring lawyers to place funds belonging in part to the lawyer and in part to the client in the lawyer’s trust account and to take prompt steps to resolve the dispute. By using a fee agreement allowing Mr. Lincoln to unilaterally determine whether fees would be increased, Mr. Lincoln violated RPC 1.5, requiring reasonable fees.
Seventh Matter: Mr. Lincoln agreed to represent a client in an action to invalidate her marriage. The client signed a fee agreement setting the fee at $3,000. This fee agreement was similar to the others. In July 1996, the client retained Mr. Lincoln to represent her in an additional case filed against her by her husband and his parents. The client agreed to pay Mr. Lincoln $875 to appear in court and argue a protective order motion in this second matter. The client assisted by obtaining all of the necessary declarations for this motion. The Court ruled in the client’s favor on the husband’s motion and against her on the parent’s motion. The client believed that Mr. Lincoln was not prepared for the hearing. In December 1996, approximately 90 days before trial, Mr. Lincoln told the client that the invalidity case was headed to trial and that the client needed to pay the $6,500 fee. The client asked Mr. Lincoln to do what he could to avoid trial, or she would be forced to find another lawyer. As a result of this conversation, Mr. Lincoln withdrew from the case, effective January 15, 1997. Mr. Lincoln stated that the client expressly terminated his services. Mr. Lincoln did not respond to several motions filed by opposing counsel on January 7, 1997.
By failing to adequately communicate with his client, Mr. Lincoln violated RPC 1.4, requiring that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with the client’s reasonable requests for information. By using a fee agreement allowing Mr. Lincoln to unilaterally determine whether fees would be increased, Mr. Lincoln violated RPC 1.5, requiring reasonable fees. By failing to take adequate steps to protect his client in the motions filed prior to the effective date of his withdrawal, Mr. Lincoln’s conduct violated RPC 1.15, requiring that upon withdrawal, a lawyer take steps to the extent reasonably practicable to protect the client’s interests.
Eighth Matter: Mr. Lincoln agreed to represent the wife in a dissolution action. She signed a brief fee agreement setting the contested fee at $3,000. This fee would cover proceedings, exclusive of trial, for one year. The fee agreement also stated that the fee was "non-trust, non-refundable." The client paid Mr. Lincoln $1,000. Mr. Lincoln drafted the initial pleadings. The husband and wife simultaneously served each other with initial pleadings. The client called and asked Mr. Lincoln to explain the pleadings that had been served on her. Mr. Lincoln told the client that he could not see her right away. The client retained new counsel and asked for a refund of unearned fees. Initially, Mr. Lincoln refused to refund any fees. Later, he refunded $500 to the client.
By using a fee agreement allowing Mr. Lincoln to unilaterally determine whether fees would be increased, Mr. Lincoln violated RPC 1.5, requiring reasonable fees.
Joanne Abelson represented the Office of Disciplinary Counsel. Joseph Ganz represented Mr. Lincoln. The hearing officer was David Hoff.
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