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
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