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Michael J. Wicks (WSBA No. 16950, admitted 1987), of Phoenix, Arizona, was ordered to receive a reprimand, effective January 31, 2005, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of the State of Arizona. This discipline was based on his conduct in 2003 involving trust account irregularities.
In August 2003, the State Bar of Arizona received an insufficient-funds notice from Wells Fargo Bank regarding Mr. Wicks's client trust account. The notice indicated that a check in the amount of $190 had attempted to clear when the balance in Mr. Wicks's client trust account was only $169.55. Wells Fargo paid the check and charged a $29 overdraft fee, thereby overdrafting the trust account by $49.45. The State Bar of Arizona sent to Mr. Wicks a copy of the insufficient-funds notice with a letter requesting that he submit an explanation. Mr. Wicks explained that the overdraft was a result of a combination of bookkeeping and deposit errors. His explanation disclosed the following:
• Believing that there was a possibility that he could be required to refund fees in three client matters, Mr. Wicks deposited "earned-upon-receipt" fees into his client trust account;
• In one instance, Mr. Wicks erroneously deposited a $1,300 fee into his operating account instead of his client trust account. Mr. Wicks subsequently refunded $300 from the trust account to the client, not realizing that the offsetting funds were not on deposit in the client trust account, resulting in a $300 shortage;
• In one instance, after accepting a $3,000 fee from a client, Mr. Wicks issued a trust-account check in the amount of $140 in payment of costs, but failed to record the disbursement in a check register. Mr. Wicks subsequently issued a partial refund of $1,000 to the client and a check to himself in the amount of $2,000. Mr. Wicks did not remember that he had previously issued a trust-account check for costs, resulting in a shortage of $140.
In October 2003, the State Bar of Arizona requested additional information from Mr. Wicks. Mr. Wicks's response was incomplete, because his bookkeeping system was not properly maintained. Mr. Wicks was unable to completely account for the total balance of funds in the trust account and unclear as to the balance of any personal funds being maintained in the trust account to cover bank service charges. Available records reflected a total balance below what should have been in the account for three clients.
Mr. Wick's conduct violated ER 1.15 of the Arizona Rules of Professional Conduct, requiring a lawyer to properly safeguard client funds, to keep the lawyer's funds separate from client funds on deposit in the trust account, and to maintain complete trust account records for a period of five years; Rule 43 of the Rules of the Supreme Court of Arizona (Ariz. R. S. Ct.), requiring a lawyer to properly maintain complete trust account records for a period of five years, exercise due professional care and proper internal controls in the maintenance of client trust accounts, to record all transactions to the trust account promptly and completely, and to conduct a monthly reconciliation of the trust account as required by the rule; and Ariz. R. S. Ct. 44, requiring that client funds be held in a trust account as regulated by the rule.
Felice P. Congalton represented the Bar Association. Mr. Wicks represented himself. |