In re Disciplinary Proceeding against Hicks

• Decision Date: 27 August 2009
• Docket Number: No. 200,606-0.,200,606-0.
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST S. Richard HICKS, an Attorney at Law.
• Court: Washington Supreme Court

214 P.3d 897

166 Wn.2d 774

In the Matter of the DISCIPLINARY PROCEEDING AGAINST S. Richard HICKS, an Attorney at Law.

No. 200,606-0.

Supreme Court of Washington, En Banc.

Argued June 9, 2009.

Decided August 27, 2009.

Scott G. Busby, Washington State Bar Association, Seattle, for Respondent.

ALEXANDER, C.J.

¶ 1 Attorney S. Richard Hicks appeals the recommendation of the Washington State Bar Association (WSBA) Disciplinary Board (Board) that he be suspended from the practice of law for a period of 24 months. The WSBA also asks us to reject the Board's recommended sanction and disbar Hicks. We adopt the Board's recommendation and order Hicks suspended for 24 months.

I

¶ 2 Hicks was admitted to the practice of law in Washington in 1976. In January 2005, the WSBA opened a grievance against Hicks as a result of an overdraft of his trust account. The overdraft occurred when Hicks wrote a check to a client. As part of its investigation, the WSBA requested that Hicks provide an explanation of the overdraft.

¶ 3 In response to the WSBA, Hicks provided a letter dated January 28, 2005. In it, he stated 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 and all payments were to or for the benefit of that client."

Clerk's Papers (CP) at 209. Based on the explanation that Hicks set forth in his letter, the WSBA dismissed the pending grievance.

¶ 4 A subsequent WSBA audit of Hicks' trust account was triggered by a series of overdrafts on Hicks' trust account between May and June 2005. The audit, which reviewed the time period of June 2004 through June 2006, revealed in part that:

5. Between January 2005 and July 2005, [Hicks] did not always maintain a check register during the audit period.

6. When [Hicks] did maintain check registers, they did not always identify transactions by client, did not always have a running balance, did not always contain entries for all transactions, and [Hicks] did not reconcile his check registers to the bank statements.

....

12. From January 2005 through July 2005, [Hicks] did not always maintain client ledgers.

13. Prior to August 2005 of the audit period, [Hicks] did not always reconcile his client ledgers to other records.

....

15. From May 2004 through July 2005, [Hicks] used his trust account for his personal and business expenses as well as for transactions involving client funds.

16. From June 2004 through July 2005, [Hicks] paid at least $38,000 of his personal expenses from funds in the trust account.

17. From June 2004 through July 2005, [Hicks] deposited at least $45,000 of personal funds into the trust account.

20. On one occasion ..., [Hicks] did not maintain client funds in the trust account.

Id. at 204-05; see Ex. 7.

¶ 5 In April 2007, the WSBA filed a formal complaint against Hicks. It alleged that Hicks committed six acts of professional misconduct, as follows:

¶ 6 Count 1: "By failing to maintain adequate records regarding client funds in his possession, Respondent violated former RPC 1.14(b)(3) [(2002)]." CP at 54.

¶ 7 Count 2: "By failing to deposit and/or maintain all client funds in trust (by failing to deposit advance fee or cost deposits, and/or by having a shortage in the account), Respondent violated former RPC 1.14(a)." Id. at 55.

¶ 8 Count 3: "By depositing lawyer funds into his pooled IOLTA [ (interest on lawyers trust account) ] trust account, Respondent violated former RPC 1.14(a)." Id.

¶ 9 Count 4: "By telling client SE that normally a lawyer deducts the lawyer's whole fee at the beginning of a series of payments, when such practice is prohibited by the RPC, Respondent violated [former] RPC 8.4(c) [ (2002) ]." Id. at 55-56.

¶ 10 Count 5: "By taking more fees than he was entitled to, Respondent violated [former] RPC 1.5 [ (1990) ]." Id. at 56.

¶ 11 Count 6: "By making a false statement to the Association in the January 28, 2005 letter, Respondent violated [former] RPC 8.4(c) and/or ELC 5.3(e)(1)." Id. at 57.

¶ 12 At the outset of a disciplinary hearing on the complaint, Hicks and the WSBA stipulated that Hicks violated the Rules of Professional Conduct as set forth in count 3. They also stipulated to certain facts, including that Hicks previously testified that he "`fudged things'" in his January 2005 letter responding to the WSBA and that the absence of a prior disciplinary record was a mitigating factor. Ex. 18, at 3. Following the hearing, the hearing officer entered findings of fact, four of which provided as follows:

57. At a deposition taken by Disciplinary Counsel on December 18, 2006 in connection with this grievance, Respondent testified that he "fudged things" when he responded to the Association's inquiry in January 2005.

58. By "fudg[ing] things," [in his January 2005 letter,] Respondent meant that the information was inaccurate and that "the reading of [the letter is] different than, you know, the facts."

59. At hearing, Respondent acknowledged that he "wasn't being fully cooperative" when he wrote the letter.

....

63. Respondent submitted the inaccurate and incomplete information in the letter to avoid detection of his trust account violations.

CP at 210.

¶ 13 The hearing officer concluded that the WSBA had proved by a clear preponderance of the evidence the violations charged in counts 1-4 and 6 but did not prove the allegation set forth in count 5. The hearing officer concluded additionally, that the following aggravating factors were present: (1) "dishonest or selfish motive," (2) "a pattern of misconduct with regard to the trust account record keeping and commingling of funds," (3) "multiple offenses," and (4) "substantial experience in the practice of law." Id. at 215. Five mitigating factors, according to the hearing officer, were present: (1) "absence of a prior disciplinary record," (2) "personal or emotional problems," (3) "timely good faith effort to make restitution or rectify consequences of misconduct," (4) "character or reputation," and (5) "imposition of other penalties or sanctions." Id. Finally, the hearing officer recommended that Hicks should be suspended from the practice of law for a period of 24 months.

¶ 14 By a unanimous vote, the Board adopted the hearing officer's findings, conclusions, and recommendation. Hicks then appealed the Board's recommendation to this court.

II

¶ 15 "This court is ultimately responsible for lawyer discipline in the state of Washington and holds plenary authority in that regard." In re Disciplinary Proceeding Against Perez-Pena, 161 Wash.2d 820, 829, 168 P.3d 408 (2007) (citing In re Disciplinary Proceeding Against Whitney, 155 Wash.2d 451, 461, 120 P.3d 550 (2005)). "Unchallenged findings of fact made by the hearing officer and unchanged by the Board are viewed as verities on appeal." Id. "Conclusions of law are reviewed de novo and will not be disturbed if they are supported by the hearing officer's findings of fact." In re Disciplinary Proceeding Against Cramer, 165 Wash.2d 323, 331, 198 P.3d 485 (2008) (citing In re Disciplinary Proceeding Against Marshall, 160 Wash.2d 317, 330, 157 P.3d 859 (2007)).

III

¶ 16 Because Hicks does not challenge any of the hearing officer's findings of fact, we accept them as verities. Hicks also does not challenge the hearing officer's conclusions of law with regard to counts 1-5. Our review, therefore, is limited to determining (1) whether the hearing officer correctly concluded that the WSBA proved count 6 by a clear preponderance of the evidence and (2) whether the sanction recommended by the hearing officer and Board should be upheld.

CHALLENGED CONCLUSION

¶ 17 The hearing officer and a unanimous Board concluded that Hicks violated ELC 5.3(e)(1) and former RPC 8.4(c), as alleged in count 6, "[b]y making a statement to the Association in the January 28, 2005 letter, which was not a `complete and accurate' statement." CP at 213. Hicks challenges these conclusions. For reasons set forth below, we hold that the unchallenged findings of fact support the conclusions of the hearing officer and the Board that Hicks violated ELC 5.3(e)(1) and former RPC 8.4(c).

ELC 5.3(e)(1)

¶ 18 ELC 5.3(e)(1) provides that "[a]ny lawyer must promptly respond to any inquiry or request made under these rules for information relevant to grievances or matters under investigation. Upon inquiry or request, any lawyer must: (1) furnish in writing, or orally if requested, a full and complete response to inquiries and questions." (Emphasis added.)

¶ 19 Hicks does not dispute that he "acted dishonestly" and "submitted ... inaccurate and incomplete information" in his January 2005 letter to the WSBA. CP at 210. Nor does he argue that the letter was not "an [in]accurate and [in]complete response." Id. By Hicks' own admission, his letter "`fudged things'" and provided information that was "`different than, you know, the facts,'" and he "`wasn't being fully cooperative.'" Id. In light of the hearing officer's unchallenged findings in this regard, it is clear that Hicks did not make a "full and complete response" to the WSBA's inquiry. We hold, therefore, that he violated ELC 5.3(e)(1).

Former RPC 8.4(c)

¶ 20 Former RPC 8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." We have indicated that in determining whether or not an attorney violated former RPC 8.4(c), "we are tasked with determining simply `whether the attorney lied.'" In re Disciplinary Proceeding Against Poole, 156 Wash.2d 196, 213, 125 P.3d 954 (2006) (quoting In re Disciplinary Proceedings Against Dann, 136 Wash.2d 67, 77, 960 P.2d 416 (1998)).

¶ 21 Hicks' letter of January 2005 contained at least two falsehoods. First, he was not truthful when he asserted in his letter that at...