Office of Lawyer Regulation v. Tracy R. Eichhorn-Hicks

2014 WI 26

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2326-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Tracy R. Eichhorn-Hicks, Attorney at Law:

Office of Lawyer Regulation,
Complainant,
v.
Tracy R. Eichhorn-Hicks,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST EICHHORN-HICKS

OPINION FILED: May 23, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
2014 WI 26
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2326-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Tracy R. Eichhorn-Hicks, Attorney at
Law:

Office of Lawyer Regulation, FILED
Complainant, MAY 23, 2014
v. Diane M. Fremgen
Clerk of Supreme Court
Tracy R. Eichhorn-Hicks,

Respondent.

ATTORNEY reinstatement proceeding. Reinstatement granted.

¶1 PER CURIAM. We review a report filed by referee

James G. Curtis recommending that the court reinstate the

license of Tracy R. Eichhorn-Hicks to practice law in Wisconsin.

After careful review of the matter, we agree that Attorney

Eichhorn-Hicks' license should be reinstated. Although the

referee recommends that the costs of the reinstatement

proceeding be reduced, we find it appropriate to require

Attorney Eichhorn-Hicks to pay the full costs of the proceeding,
which are $3,159.37 as of November 22, 2013.
No. 2011AP2326-D

¶2 Attorney Eichhorn-Hicks was licensed to practice law

in Minnesota in 1975, and became licensed to practice law in

Wisconsin in 1984. He practices primarily in Minnesota.

¶3 On August 21, 2000, the Supreme Court of Minnesota

suspended Attorney Eichhorn-Hicks' license for a period of one

year due to professional misconduct, including misuse of his

trust account, failure to maintain proper trust account records,

temporary misappropriation of funds, making a false

certification on his attorney registration statements, and

making false statements to the director of the Minnesota Office

of Lawyers Professional Responsibility. In re Disciplinary

Action Against Eichhorn-Hicks, 615 N.W.2d 356 (Minn. 2000).

Attorney Eichhorn-Hicks did not report the suspension to the

Office of Lawyer Regulation (OLR), as he was required to do.

See SCR 22.22(1). The OLR learned of the suspension through

other sources in June of 2011. During the period of the

Minnesota suspension, Attorney Eichhorn-Hicks did not practice

law in either Minnesota or Wisconsin.
¶4 Effective February 8, 2002, the Supreme Court of

Minnesota reinstated Attorney Eichhorn-Hicks' license to

practice law in Minnesota, subject to the condition that he be

placed on supervised probation for three years. The terms of

his probation included supervision by a licensed Minnesota

attorney; maintenance and review by the supervising attorney of

certain client, file, and fee records; maintenance of trust

account records and compliance with any requests to review those
records by the director of the Office of Lawyers Professional
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No. 2011AP2326-D

Responsibility; and abstinence from alcohol and other mood-

altering chemicals.

¶5 On June 23, 2009, the Supreme Court of Minnesota

publicly reprimanded Attorney Eichhorn-Hicks for professional

misconduct involving his receipt on two occasions of advanced

fee payments in a client matter in which there was no written

fee agreement, his failure to deposit such funds into a client

trust account, and his failure to disclose during a disciplinary

investigation the full amounts of payments he had received for

the representation of a client. In re Disciplinary Action

Against Eichhorn-Hicks, 767 N.W.2d 20 (Minn. 2009). Again,

Attorney Eichhorn-Hicks failed to timely inform the OLR of this

public reprimand.

¶6 In addition to the 2009 public reprimand, the Supreme

Court of Minnesota also placed Attorney Eichhorn-Hicks on

probation for two years with a number of conditions. Under the

terms of the Minnesota order, the period of probation was

scheduled to expire in June of 2011. As with the 2000
suspension, the OLR learned of the 2009 public reprimand in June

of 2011 through other sources.

¶7 In October of 2011, the OLR filed a complaint against

Attorney Eichhorn-Hicks alleging that, by virtue of having

received public discipline imposed by the Supreme Court of

Minnesota, he was subject to reciprocal discipline in Wisconsin

pursuant to SCR 22.22. The complaint also alleged that by

failing to notify the OLR of either the 2000 suspension or the

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No. 2011AP2326-D

2009 public reprimand, Attorney Eichhorn-Hicks violated

SCR 22.22(1).

¶8 On March 1, 2012, this court ordered that Attorney

Eichhorn-Hicks be publicly reprimanded for the misconduct

leading to the 2009 public reprimand in Minnesota. It also

ordered that his license to practice law in Wisconsin be

suspended effective April 2, 2012, for a period of one year, as

reciprocal discipline to that issued by the Supreme Court of

Minnesota. Attorney Eichhorn-Hicks was further ordered to

comply with the provisions of SCR 22.26. In re Disciplinary

Proceedings Against Eichhorn-Hicks, 2012 WI 18, 338 Wis. 2d 753,

809 N.W.2d 379.

¶9 On May 13, 2013, Attorney Eichhorn-Hicks filed a

petition for the reinstatement of his license to practice law in

Wisconsin. The OLR filed a response on September 20, 2013. In

its response, the OLR suggested that the referee might wish to

explore Attorney Eichhorn-Hicks' understanding of his obligation

to strictly and fully comply with supreme court rules and may
also wish to explore the accuracy of declarations contained in

his reinstatement petition. Specifically, the OLR expressed

concern that Attorney Eichhorn-Hicks may have practiced law

after the effective date of the suspension of his Wisconsin law

license. Attorney Eichhorn-Hicks' possible practice after the

suspension of his license involved his representation of C.K.,

an Illinois resident, on a Wisconsin OWI charge in Barron

County.

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No. 2011AP2326-D

¶10 A public hearing on Attorney Eichhorn-Hicks' petition

for reinstatement was held on October 15, 2013. The referee

filed his report and recommendation in the matter on November 4,

2013.

¶11 Supreme Court Rule 22.31(1)1 provides the standards to

be met for reinstatement. Specifically, the petitioner must

show by clear, satisfactory, and convincing evidence that he or

she has the moral character to practice law, that his or her

resumption of the practice of law will not be detrimental to the

administration of justice or subversive of the public interest,

and that he or she has complied with SCR 22.26 and the terms of

the order of suspension. In addition to these requirements,

SCR 22.29(4)(a)-(4m)2 provides additional requirements that a
1
SCR 22.31(1) states:

The petitioner has the burden of demonstrating,
by clear, satisfactory, and convincing evidence, all
of the following:

(a) That he or she has the moral character to
practice law in Wisconsin.

(b) That his or her resumption of the practice of
law will not be detrimental to the administration of
justice or subversive of the public interest.

(c) That his or her representations in the
petition, including the representations required by
SCR 22.29(4)(a) to [(4m)] and 22.29(5), are
substantiated.

(d) That he or she has complied fully with the
terms of the order of suspension or revocation and
with the requirements of SCR 22.26.
2
SCR 22.29(4)(a) through (4m) provides that a petition for
reinstatement shall show all of the following:

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No. 2011AP2326-D

(a) The petitioner desires to have the
petitioner's license reinstated.

(b) The petitioner has not practiced law during
the period of suspension or revocation.

(c) The petitioner has complied fully with the
terms of the order of suspension or revocation and
will continue to comply with them until the
petitioner's license is reinstated.

(d) The petitioner has maintained competence and
learning in the law by attendance at identified
educational activities.

(e) The petitioner's conduct since the suspension
or revocation has been exemplary and above reproach.

(f) The petitioner has a proper understanding of
and attitude toward the standards that are imposed
upon members of the bar and will act in conformity
with the standards.

(g) The petitioner can safely be recommended to
the legal profession, the courts and the public as a
person fit to be consulted by others and to represent
them and otherwise act in matters of trust and
confidence and in general to aid in the administration
of justice as a member of the bar and as an officer of
the courts.

(h) The petitioner has fully complied with the
requirements set forth in SCR 22.26.

(j) The petitioner's proposed use of the license
if reinstated.

(k) A full description of all of the petitioner's
business activities during the period of suspension or
revocation.

(4m) The petitioner has made restitution to or
settled all claims of persons injured or harmed by
petitioner's misconduct, including reimbursement to
the Wisconsin lawyers' fund for client protection for
all payments made from that fund, or, if not, the
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No. 2011AP2326-D

petition for reinstatement must show. All of these additional

requirements are effectively incorporated into SCR 22.31(1).

¶12 When we review a referee's report and recommendation,

we will adopt the referee's findings of fact unless they are

clearly erroneous. Conclusions of law are reviewed de novo.

See In re Disciplinary Proceedings Against Eisenberg,

2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.

¶13 We conclude the referee's findings support a

determination that Attorney Eichhorn-Hicks has met his burden to

establish by clear, convincing, and satisfactory evidence that

he has met all of the standards required for reinstatement.

¶14 With respect to the concern raised in the OLR's

response to the reinstatement petition that Attorney Eichhorn-

Hicks may have practiced law during the term of his Wisconsin

suspension, the referee said that having heard Attorney

Eichhorn-Hicks' testimony and explanation at the hearing, the

referee was satisfied that Attorney Eichhorn-Hicks did not in

fact engage in the practice of law while he was suspended. The
referee said Attorney Eichhorn-Hicks credibly explained that he

anticipated C.K. would be engaging a new lawyer and that

Attorney Eichhorn-Hicks would be turning over the file to C.K.'s

new counsel. Attorney Eichhorn-Hicks explained that under

SCR 20:1.16(d), he had a duty, upon termination of the

representation, to take appropriate steps to protect his

petitioner's explanation of the failure or inability
to do so.

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No. 2011AP2326-D

client's interests. Attorney Eichhorn-Hicks explained that on

April 30, 2012, after his Wisconsin license had been suspended,

he made a call to the district attorney's office to ask if there

had ever been a response to a settlement proposal he had made on

March 31, 2012. Attorney Eichhorn-Hicks explained at the

hearing that he understood the case was over as far as his

involvement in it, and the purpose of his phone call was simply

to inquire if there had been a response to his settlement

proposal, as he anticipated forwarding information to C.K.'s new

attorney.

¶15 The referee said SCR 22.26 envisions an orderly

winding up of an attorney's practice upon suspension. The

referee concluded that Attorney Eichhorn-Hicks' phone call to

the district attorney's office was consistent with that

practice. The referee said he was satisfied that Attorney

Eichhorn-Hicks did not improperly engage in the practice of law

in Wisconsin during the term of his suspension.

¶16 The referee found that Attorney Eichhorn-Hicks
complied with the terms of the order of his suspension. While

the referee noted that Attorney Eichhorn-Hicks did not timely

file the affidavit required by SCR 22.26(1)(e), the referee

found this to be a technical violation and an insignificant

factor in assessing the request for reinstatement. The referee

found that Attorney Eichhorn-Hicks has maintained competence in

learning in the law by attending various educational activities,

and the referee found that Attorney Eichhorn-Hicks' conduct
since the suspension has been exemplary and above reproach.
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No. 2011AP2326-D

¶17 The referee also found that Attorney Eichhorn-Hicks

has a proper understanding of an attitude toward the standards

that are imposed upon members of the bar and that he will act in

conformity with those standards. The referee noted that in

addition to the 2000 suspension and the 2009 public reprimand

imposed by the Supreme Court of Minnesota, Attorney Eichhorn-

Hicks had a rather extensive history of discipline in Minnesota

which included multiple private admonitions and private

probations. In spite of this history, the referee noted that

the OLR acknowledged that "Minnesota's Office of Lawyers

Professional Responsibility continues to respond with reprimand

level and probationary actions, allowing Eichhorn-Hicks'

continued practice in Minnesota. His lengthy career and

Minnesota's reactions to his failures are persuasive evidence

that he does ultimately practice within standards sufficient to

safely represent the public." The referee noted that when

specifically asked at the hearing whether he could provide

assurances that from this point forward he would do his utmost
to abide by all of the technicalities, "Eichhorn-Hicks

acknowledged that in the past, he probably wasn't as focused on

the rules as he should have been but that recently he had been

very careful, and was much more tuned-in to the rules than he

had ever been. The assurance was given in a straight-forward

and credible fashion."

¶18 The referee concluded that Attorney Eichhorn-Hicks can

safely be recommended to the legal profession, the courts, and
the public as a person fit to be consulted by others and to
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No. 2011AP2326-D

represent them and otherwise act in matters of trust and

confidence and in general to aid in the administration of

justice as a member of the bar and as an officer of the courts.

The referee stated:

From his demeanor and presentation at the
hearing, the Referee is persuaded that Eichhorn-Hicks
can safely be recommended to return to the active
practice of law in Wisconsin. After 38 years in
practice, he continues to work 60 to 70 hours per week
and enjoys trying cases. Many of his representations
are handled on a fixed-fee basis and he is willing to
devote the time and effort necessary to handle matters
properly. During the term of his Wisconsin
suspension, he maintained an active law practice in
Minnesota and there is no basis to question his
fitness to represent clients in Wisconsin matters.
¶19 This court has carefully evaluated whether Attorney

Eichhorn-Hicks has met the requirements for the reinstatement of

his license to practice law in Wisconsin, and we conclude that

he has. We agree with the referee that Attorney Eichhorn-Hicks

has met his burden of proof with respect to all elements needed

to justify his reinstatement.

¶20 Attorney Eichhorn-Hicks has objected to the OLR's
statement of costs and argues that it represents a fine or

penalty. He points out that when his Minnesota license was

suspended for one year in 2000, he did not practice in either

Minnesota or Wisconsin for that year and it was not until more

than ten years later that the OLR discovered the Minnesota

suspension and pursued reciprocal discipline which led to the

one-year suspension of Attorney Eichhorn-Hicks' Wisconsin law
license effective in April of 2012. The referee found this

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No. 2011AP2326-D

argument to be persuasive, saying Attorney Eichhorn-Hicks'

primary mistake was to fail to report his Minnesota discipline

to the OLR as required by SCR 22.22. The referee opines that if

Attorney Eichhorn-Hicks had reported the Minnesota discipline in

2000, it is likely that the Wisconsin suspension would have been

made coterminous with the suspension of Attorney Eichhorn-Hicks'

Minnesota license. The referee said, "Because of his failure to

comply with the notification requirements of SCR 22.22(1),

Mr. Eichhorn-Hicks has been subjected to a serious sanction and,

in effect, a second one-year suspension." For that reason, the

referee recommends that this court relieve Attorney Eichhorn-

Hicks from having to pay the fees and expenses of the OLR's

counsel in the reinstatement case, which would reduce the net

cost assessment to $1,594.65.

¶21 This court's general practice is to assess the full

costs against a respondent. SCR 22.24(1m). In order to award

something less than full costs, the court must find

extraordinary circumstances. We do not believe that this case
presents the sort of extraordinary circumstances necessary to

relieve Attorney Eichhorn-Hicks from having to bear the full

costs of the reinstatement proceeding.

¶22 IT IS ORDERED that the license of Tracy R. Eichhorn-

Hicks to practice law in Wisconsin is reinstated effective the

date of this order.

¶23 IT IS FURTHER ORDERED that within 60 days of the date

of this order, Tracy R. Eichhorn-Hicks shall pay to the Office

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No. 2011AP2326-D

of Lawyer Regulation the costs of this proceeding, which are

$3,159.37.

¶24 IT IS FURTHER ORDERED that compliance with all of the

terms of this order remain a condition of Tracy R. Eichhorn-

Hicks' license to practice law in Wisconsin.

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No. 2011AP2326-D