2016 WI 9
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP7-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Michael J. Hicks, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Michael J. Hicks,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST HICKS
OPINION FILED: February 17, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 9
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP7-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Michael J. Hicks, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
FEB 17, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Michael J. Hicks,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of the referee,
Attorney James J. Winiarski, who found that Attorney Michael J.
Hicks had committed 35 counts of professional misconduct and
recommended that Attorney Hicks' license to practice law in
Wisconsin be suspended for a period of two years.
¶2 The first issue we must address is the status of
Attorney Hicks' appeal and the nature of our review. After the
referee filed his report and recommendation, Attorney Hicks
No. 2014AP7-D
filed a notice of appeal on February 6, 2015. On that same
date, pursuant to its standard practice, the clerk of this court
issued a notice to the parties acknowledging the filing of the
notice of appeal, informing Attorney Hicks of the need to file a
statement on transcript, and advising him of the briefing
schedule. Attorney Hicks did not file either a statement on
transcript or an opening brief. On April 9, 2015, the clerk's
office issued an order on behalf of the court advising Attorney
Hicks that his opening brief was delinquent and that, unless he
filed the opening brief or a motion for an extension of time
within five days, the disciplinary case would be resolved
summarily. Attorney Hicks did not respond. On June 15, 2015,
the Office of Lawyer Regulation (OLR) formally moved for the
dismissal of Attorney Hicks' appeal. Attorney Hicks still did
not respond. Thus, despite being notified on multiple occasions
that his failure to respond might result in the dismissal of his
appeal and/or the court's consideration of the referee's report
on a summary basis (without the filing of appellate briefs as if
no appeal had been filed), Attorney Hicks still failed to file
an opening brief or otherwise respond.
¶3 Appeals in attorney disciplinary cases are subject to
the rules of appellate procedure for civil cases. Supreme Court
Rule (SCR) 22.17(3). Sanctions for failing to comply with those
rules are likewise available as they would be in other civil
appeals. See Wis. Stat. § (Rule) 809.83(2); In re Disciplinary
Proceeding Against Crandall, 2011 WI 21, ¶13, 332 Wis. 2d 698,
798 N.W.2d 183. Those sanctions include "dismissal of the
2
No. 2014AP7-D
appeal, summary reversal, striking of a paper, imposition of a
penalty or costs on a party or counsel, or other action as the
court considers appropriate." Wis. Stat. § (Rule) 809.83(2).
¶4 In ordinary civil cases, dismissal of an appeal with
prejudice is a drastic action because "in many cases it imposes
a finality to both issues and claims." State v. Smythe,
225 Wis. 2d 456, 469, 592 N.W.2d 628 (1999). When an ordinary
civil appeal is dismissed by the court of appeals, the circuit
court's final judgment or order stands without any consideration
of the merits. Consequently, this court has authorized
dismissal of civil appeals only where the appellant "has
demonstrated bad faith or egregious conduct, or there must be a
common sense finding that the appeal has been abandoned." Id.
¶5 Whether Attorney Hicks' failure to file any brief in
this court can be characterized as "egregious" or "bad faith"
are issues we need not reach. A stronger argument can be made
that Attorney Hicks has abandoned his appeal. In addition to
the notice provided in the rules of appellate procedure that he
must file a brief, see Wis. Stat. § (Rule) 809.19(1), he twice
received notices from the clerk of this court that reminded him
of his obligation to file a brief. Indeed, the April 9, 2015
order issued through the clerk's office explicitly stated that
his brief was delinquent and that he had five days to file his
brief or to seek an extension. That order did not spur Attorney
Hicks to any action, even though it advised him that failure to
comply would result in the court resolving his case in a summary
manner. Attorney Hicks' failure to take any action in the face
3
No. 2014AP7-D
of the court's order is a clear indication that he had decided
to abandon his appeal. That intention was confirmed when the
OLR subsequently filed a motion to dismiss his appeal, and
Attorney Hicks failed even to file a response to the motion.
Thus, this court has received not one communication from
Attorney Hicks since he filed his short notice of appeal.
Common sense would seem to require characterizing this pattern
of conduct as clearly demonstrating an intent to abandon the
appeal.
¶6 At a minimum, Attorney Hicks has failed to file any
brief even after being informed in April 2015 that this court
would summarily resolve his case if he failed to file a brief
within five days. His prolonged course of inaction and failure
to communicate with this court constitutes a forfeiture of his
right to file a brief, even if we do not formally dismiss his
appeal.
¶7 Ultimately, we choose not to formally dismiss Attorney
Hicks' appeal, but merely to proceed to consider the matter
without the benefit of briefs. This choice, however, will have
no real effect on how we proceed in this disciplinary case. In
either case, because this is an attorney disciplinary matter
that has come to us via a referee's report and recommendation
rather than a lower court "judgment" that we could simply affirm
without consideration of the merits, we must proceed to review
the referee's report and recommendation on the merits. Because
there are no briefs and no specific issues presented for our
review, we will still proceed with our review as if no appeal
4
No. 2014AP7-D
had been filed, which means that we will still review the
referee's findings of fact and conclusions of law and will
determine an appropriate level of discipline for any misconduct
that is found. See SCR 22.17(2).1
¶8 We will affirm the referee's findings of fact unless
they are found to be clearly erroneous, but we will review the
referee's conclusions of law on a de novo basis. In re
Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5,
305 Wis. 2d 71, 740 N.W.2d 125. If professional misconduct is
found, we will determine the appropriate level of discipline to
impose given the particular facts of each case, independent of
the referee's recommendation, but benefiting from it. In re
Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44,
261 Wis. 2d 45, 660 N.W.2d 686.
¶9 After reviewing this matter, we accept the referee's
findings of fact and legal conclusions that Attorney Hicks
committed 35 counts of professional misconduct. Given the
pattern of Attorney Hicks' misconduct, the number of clients
affected, and his cavalier attitude toward the lawyer regulation
system and the resulting temporary suspensions of his license,
1
SCR 22.17(2) states:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
5
No. 2014AP7-D
we determine that a two-year suspension of his license to
practice law is appropriate. We further require Attorney Hicks
to pay the costs of this disciplinary proceeding, which were
$10,572.49 as of February 4, 2015.
¶10 Attorney Hicks was admitted to the practice of law in
this state in June 1984. He most recently maintained a private
law practice in West Allis.
¶11 Attorney Hicks has been the subject of professional
discipline on one prior occasion. In 2012 he received a public
reprimand after stipulating to nine counts of professional
misconduct. In re Disciplinary Proceedings Against Hicks,
2012 WI 11, 338 Wis. 2d 558, 809 N.W.2d 33.
¶12 As the referee noted, there is a general pattern to
Attorney Hicks' misconduct. His practice focused primarily on
representing indigent defendants in criminal cases through
appointments by the Office of the State Public Defender (SPD) or
by a court. While Attorney Hicks would usually send an initial
letter to the client notifying him/her of the appointment and
his representation, he would largely ignore the client for
extended periods of time. At times, Attorney Hicks would fail
to follow through on necessary actions. At some point the OLR
would receive a grievance, which they would send to Attorney
Hicks for a written response. Attorney Hicks would either never
respond, or he would provide an initial response that the OLR
deemed inadequate and he would then fail to respond to the OLR's
requests for further information.
6
No. 2014AP7-D
¶13 On two occasions, the OLR moved for the temporary
suspension of Attorney Hicks' license due to his willful failure
to cooperate with the OLR's investigations. The first such
motion was filed on June 14, 2012. This court then issued an
order directing Attorney Hicks to show cause in writing by
July 5, 2012, why his license should not be temporarily
suspended. On July 17, 2012, Attorney Hicks filed a late
response asserting that he had submitted a response to the
grievance to the OLR. The OLR, however, stated that Attorney
Hicks' response was insufficient and asked him to provide
additional information. The OLR twice asked this court to
postpone suspending Attorney Hicks' license to allow Attorney
Hicks more time to provide a complete response to the OLR's
requests for information. When the OLR reported that Attorney
Hicks had failed to provide any additional information, this
court finally temporarily suspended his license on September 27,
2012. Only after the temporary suspension of his license did
Attorney Hicks submit a response to the grievance that provided
the information the OLR was seeking. The court then reinstated
Attorney Hicks' license on October 16, 2012.
¶14 The OLR was forced to file a second motion for
temporary suspension on November 29, 2012, when Attorney Hicks
failed to provided adequate responses in other grievance
investigations. This court again issued an order to show cause.
Attorney Hicks did not respond to the order, and this court then
temporarily suspended his license again on February 12, 2013.
Once that suspension had been ordered, Attorney Hicks began to
7
No. 2014AP7-D
cooperate with the OLR's investigations. The OLR notified the
court of that fact, and we reinstated Attorney Hicks' license to
practice law in this state on March 11, 2013.
¶15 We now turn to the specific factual findings and
conclusions of professional misconduct.
Representation of D.S.
¶16 In June 2011, Attorney Hicks was appointed to
represent D.S. in a criminal case pending in the Milwaukee
County circuit court. Attorney Hicks did meet with D.S. on at
least two occasions and also met with D.S.'s wife to discuss
various issues related to the defense of the case, including the
execution of a search warrant and a possible motion to suppress
evidence. Attorney Hicks and D.S. did not agree on several
aspects of the motion. Attorney Hicks did file a motion to
suppress, but the November 9, 2011 hearing on the motion was
adjourned to January 26, 2012, because a witness for the state
was not present. On November 9, 2011, and in a letter mailed
the next day, D.S. asked Attorney Hicks to amend the suppression
motion to add additional arguments, to subpoena additional
witnesses for the hearing, and to investigate what D.S. believed
was a faulty affidavit. The referee found that Attorney Hicks
did not subpoena the additional witnesses requested by D.S.
because he believed they would be detrimental to D.S.'s chance
of obtaining suppression and that he did not pursue the
additional arguments raised by D.S. because he believed them to
be without merit. Attorney Hicks, however, did not communicate
with D.S. between November 16, 2011, and the adjourned hearing
8
No. 2014AP7-D
on January 26, 2012, when Attorney Hicks' motion to withdraw as
D.S.'s counsel was granted by the circuit court.
¶17 On December 24, 2011, D.S. mailed a grievance letter
to the OLR regarding Attorney Hicks' representation. The OLR
twice communicated by letter with Attorney Hicks and asked him
to respond to D.S.'s grievance. When Attorney Hicks did not
respond, the OLR included Attorney Hicks' failure to cooperate
as a basis for its first motion for a temporary suspension.
¶18 On the basis of these facts, the referee concluded
that the OLR had not proven to the requisite standard of clear,
satisfactory, and convincing evidence that Attorney Hicks had
violated SCR 20:1.32 by failing to act with reasonable diligence.
The referee also determined that the OLR had failed to prove
violations of SCRs 20:1.4(a)(2) and (4)3 and 20:1.4(b),4 but he
2
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
3
SCR 20:1.4(a), as relevant here, provides that a lawyer
shall:
(2) reasonably consult with the client about the
means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the
status of the matter; [and]
(4) promptly comply with reasonable requests by
the client for information.
4
SCR 20:1.4(b) provides that "[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation."
9
No. 2014AP7-D
did find that the OLR had proven a failure to communicate with
D.S., in violation of SCR 20:1.4(a)(3). In addition, the
referee concluded that Attorney Hicks' failure to file a
response to D.S.'s grievance until this court had temporarily
suspended his license had constituted a violation of
SCR 22.03(2) and (6),5 which are enforced via SCR 20:8.4(h).6
5
SCR 22.03(2) and (6) provide:
(2) Upon commencing an investigation, the
director shall notify the respondent of the matter
being investigated unless in the opinion of the
director the investigation of the matter requires
otherwise. The respondent shall fully and fairly
disclose all facts and circumstances pertaining to the
alleged misconduct within 20 days after being served
by ordinary mail a request for a written response. The
director may allow additional time to respond.
Following receipt of the response, the director may
conduct further investigation and may compel the
respondent to answer questions, furnish documents, and
present any information deemed relevant to the
investigation.
. . . .
(6) In the course of the investigation, the
respondent's wilful failure to provide relevant
information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a
disclosure are misconduct, regardless of the merits of
the matters asserted in the grievance.
6
SCR 20:8.4(h) provides that it is professional misconduct
for a lawyer to "fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."
10
No. 2014AP7-D
Representation of C.N.
¶19 In the fall of 2011, Attorney Hicks was appointed to
represent client C.N. in a criminal appeal before the United
States Court of Appeals for the Seventh Circuit. The opening
brief in the appeal was due on November 14, 2011, but Attorney
Hicks did not file any brief. Over the next six weeks, the
Seventh Circuit issued two separate orders to show cause why
C.N.'s appeal should not be dismissed for want of prosecution.
Attorney Hicks did not respond to either of the two orders.
Finally, in an order dated April 19, 2012, the chief judge of
the Seventh Circuit discharged Attorney Hicks from C.N.'s appeal
and ordered him to show cause why he should not be censured,
fined, suspended, or disbarred from practicing in the Seventh
Circuit due to his defiance of the court's orders and his
abandonment of his client. The Seventh Circuit ultimately did
disbar Attorney Hicks from appearing before it.
¶20 The OLR sent several letters to Attorney Hicks seeking
a response regarding his actions in the C.N. representation.
After the second OLR letter, Attorney Hicks asked for a short
extension to submit his response, but he did not respond. After
the third OLR letter, Attorney Hicks submitted another letter in
which he merely asserted that his trial schedule had prevented
him from completing his response, that he was working on
compiling the necessary documents and information, and that he
would try to complete his response as soon as he could.
Attorney Hicks, however, never filed a substantive response. He
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No. 2014AP7-D
also did not respond to this court's order to show cause, which
led to the second temporary suspension described above.
¶21 The referee determined that these facts supported
three counts of misconduct. First, Attorney Hicks' failure to
file a brief, seek an extension of time, or withdraw from
representing C.N. had constituted a lack of diligence, in
violation of SCR 20:1.3. The referee also concluded that
Attorney Hicks had violated SCR 20:3.4(c)7 by failing to respond
to the Seventh Circuit's multiple orders to show cause.
Finally, Attorney Hicks' failure to respond to the OLR's
requests for a response had violated SCR 22.03(2) and (6), which
are enforced via SCR 20:8.4(h).
Representation of R.C.
¶22 Attorney Hicks was appointed to represent R.C. in
post-conviction proceedings or on appeal following R.C.'s
criminal conviction. Attorney Hicks never had any contact with
R.C. and failed to take any action on his behalf, causing R.C.'s
appeal rights to expire without his consent. Ultimately, the
SPD was forced to appoint new counsel for R.C.
¶23 The referee concluded that Attorney Hicks' lack of
action during the representation of R.C. supported two counts of
misconduct. First, Attorney Hicks failed to act with reasonable
diligence, in violation of SCR 20:1.3. Second, Attorney Hicks'
7
SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
12
No. 2014AP7-D
lack of communication with his client constituted violations of
SCRs 20:1.4(a)(2), (3), and (4) and 20:1.4(b).
Representation of L.B.
¶24 Attorney Hicks was also appointed to represent L.B. in
criminal post-conviction matters. In a July 30, 2012 order, the
circuit court ordered Attorney Hicks to file a brief in support
of a previously filed post-conviction motion by September 4,
2012. Attorney Hicks failed to file the brief as ordered or to
seek an extension of time prior to the temporary suspension of
his license to practice law in Wisconsin. Indeed, except for an
introductory letter to L.B. notifying him of Attorney Hicks'
appointment, Attorney Hicks did not meet with L.B., respond to
letters from L.B. requesting information about his case, or
otherwise keep L.B. informed about the status of his case. When
this court issued its first temporary suspension order against
Attorney Hicks in September 2012, Attorney Hicks failed to
notify L.B. of his suspension. Attorney Hicks also failed to
notify the circuit court or opposing counsel. Finally, as
occurred in other matters, Attorney Hicks promised the OLR that
he would provide a response to L.B.'s grievance, but he failed
to do so in a timely manner, responding only after this court
had issued its second temporary suspension order in February
2013.
¶25 The referee concluded that the OLR had not proven to
the requisite standard of proof that Attorney Hicks' failure to
file a written request for an extension of time to file the
post-hearing brief had constituted a violation of SCR 20:1.3.
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No. 2014AP7-D
The referee did find that Attorney Hicks had failed to properly
communicate with L.B., in violation of SCRs 20:1.4(a)(2), (3),
and (4) and 20:1.4(b). The referee also determined that
Attorney Hicks' failure to notify his client of his temporary
suspension had violated SCRs 22.26(1)(a) and (b)8 and 20:3.4(c).9
Similarly, Attorney Hicks' failure to notify the circuit court
and opposing counsel of the temporary suspension violated SCRs
22.26(1)(c)10 and 20:3.4(c). Finally, the referee concluded that
8
SCR 22.26(1)(a) and (b) provide that, on or before the
effective date of a license suspension, an attorney whose
license is suspended shall "[n]otify by certified mail all
clients being represented in pending matters of the suspension
or revocation and of the attorney's consequent inability to act
as an attorney following the effective date of the suspension or
revocation," and shall "[a]dvise the clients to seek legal
advice of their choice elsewhere."
9
As noted above, SCR 20:3.4(c) provides that a lawyer shall
not "knowingly disobey an obligation under the rules of a
tribunal, except for an open refusal based on an assertion that
no valid obligation exists." We question whether an attorney's
failure to notify the attorney's client, opposing counsel, or a
court of a temporary license suspension can constitute a
violation of SCR 20:3.4, which bears the title "Fairness to
opposing party and counsel." Multiple counts alleging
violations of SCR 22.26 also alleged violations of SCR 20:3.4(c)
in this matter. We need not decide this question, however,
because the failure to comply with the obligations in
SCR 22.26(1) to notify clients, opposing counsel, and courts of
an attorney's temporary license suspension clearly constitutes a
violation of SCR 20:8.4(f), which provides that it is
professional misconduct for a lawyer to "violate a statute,
supreme court rule, supreme court order or supreme court
decision regulating the conduct of lawyers."
10
SCR 22.26(1)(c) provides that, on or before the effective
date of a license suspension, an attorney whose license is
suspended shall:
(continued)
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No. 2014AP7-D
Attorney Hicks' failure to respond to L.B.'s grievance until
after this court had temporarily suspended his license had
violated SCR 22.03(2) and (6), which are enforced via
SCR 20:8.4(h).
Representation of E.B.
¶26 Attorney Hicks was representing E.B. at the time that
this court imposed both of the temporary license suspensions (in
September 2012 and in February 2013). The referee found that in
neither instance did Attorney Hicks notify E.B. of the license
suspension, in violation of SCRs 22.26(1)(a) and (b) and
20:3.4(c). The referee also found that Attorney Hicks failed to
notify the court and opposing counsel of his two license
suspensions, in violation of SCRs 22.26(1)(c) and 20:3.4(c).
Finally, the referee determined that Attorney Hicks had failed
to respond to E.B.'s grievance, in violation of SCR 22.03(2) and
(6), which are enforced via SCR 20:8.4(h).
Representation of V.B.
¶27 In early December 2011, the United States District
Court for the Eastern District of Wisconsin (the Eastern
Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension or revocation. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.
15
No. 2014AP7-D
District) appointed Attorney Hicks to represent client V.B. in a
criminal case pending in that court. V.B.'s sentencing was
initially scheduled for February 28, 2012. Except for an
introductory letter informing V.B. of his appointment and
despite V.B.'s multiple attempts at contact, Attorney Hicks did
not communicate with V.B. to discuss the case or prepare for the
sentencing hearing, causing V.B. to send a letter to that effect
to the federal court prior to the sentencing hearing.
¶28 Without consulting V.B., Attorney Hicks sent a letter
to the court the day before the sentencing hearing, requesting
an adjournment of the hearing. In his letter, although he had
never spoken with V.B., Attorney Hicks stated that V.B. had
"expressed some concerns about my representation of him, and I
would like the opportunity to spend more time with [V.B.] to
discuss his case and address his concerns." On the same day,
Attorney Hicks sent a letter to V.B. notifying him that Attorney
Hicks had unilaterally sought the adjournment of the sentencing
hearing.
¶29 When Attorney Hicks still did not communicate with him
regarding the sentencing hearing, V.B. sent another letter to
the court asking for the appointment of new counsel. The court
responded that it would address V.B.'s request at the sentencing
hearing now scheduled for April 11, 2012. The day before the
sentencing hearing, however, Attorney Hicks again requested an
adjournment of the sentencing hearing without consulting or even
notifying V.B. The referee also found that Attorney Hicks had
16
No. 2014AP7-D
not done "any appreciable preparation for [V.B.'s] sentencing"
by that time.
¶30 The court adjourned the sentencing hearing, but
scheduled a status conference for April 19, 2012. Attorney
Hicks unsuccessfully attempted to have this status conference
adjourned. At the status conference, the Eastern District judge
removed Attorney Hicks from V.B.'s case and appointed successor
counsel.
¶31 V.B. filed a grievance with the OLR, which in turn
notified Attorney Hicks and asked for a response in a letter
dated July 24, 2012. Attorney Hicks requested an extension to
respond, but he failed to provide any response until after this
court had imposed the first temporary license suspension in
September 2012. The OLR then requested additional information
from Attorney Hicks regarding the V.B. representation. Long
after the deadline for his supplemental response, Attorney Hicks
faxed a letter to the OLR in late November 2012, claiming that
his trial schedule had prevented him from responding, but
assuring the OLR that he was compiling the documents and
information the OLR requested and promising the OLR that he
would complete the work on his supplemental response as soon as
he could. Attorney Hicks, however, failed to provide any
supplemental response until after this court had suspended his
license a second time due to his willful failure to cooperate
with the OLR's investigations.
¶32 Based on these facts, the referee concluded that
Attorney Hicks had violated SCR 20:1.3 due to his failure to
17
No. 2014AP7-D
prepare for and proceed with V.B.'s sentencing over a period of
more than four months, which ultimately resulted in his removal
from the case and the appointment of new counsel. Further, the
referee determined that Attorney Hicks' failure to communicate
with his client, both to advise the client of his actions and to
respond to the client's multiple requests for information, had
violated SCRs 20:1.4(a)(2), (3), and (4) and 20:1.4(b). In
addition, the referee again ruled that Attorney Hicks had
violated SCR 22.03(2) and (6), which are enforced via
SCR 20:8.4(h), by failing to provide timely responses to the
OLR's requests for information about V.B.'s grievance. The
referee, however, did not find that Attorney Hicks had
"engage[d] in conduct involving dishonesty, fraud, deceit or
misrepresentation," in violation of SCR 20:8.4(c), as charged in
the OLR's complaint.
Representation of J.M.
¶33 Attorney Hicks was appointed to represent client J.M.
in May 2012. During the period of Attorney Hicks' first
temporary suspension, he continued to make court appearances on
J.M.'s behalf. He also failed to properly notify J.M. of his
temporary suspensions. When the OLR notified Attorney Hicks of
J.M.'s grievance and asked for certain information and documents
in response to the grievance, Attorney Hicks failed to respond.
¶34 The referee concluded that Attorney Hicks' failure to
notify J.M. of either of the temporary suspensions had violated
SCRs 22.26(1)(a) and (b) and 20:3.4(c). He also determined that
Attorney Hicks had violated SCRs 22.26(2) and 20:3.4(c) by
18
No. 2014AP7-D
making court appearances on behalf of J.M. at a time when his
license had been temporarily suspended. Finally, Attorney
Hicks' failure to respond to the OLR's request for information
violated SCR 22.03(2) and (6), which are enforced via
SCR 20:8.4(h).
Representations of K.L. and F.W.
¶35 In August 2011, the Eastern District appointed
Attorney Hicks to represent K.L. in a criminal case pending in
that court.
¶36 On April 19, 2012, while K.L's case was still pending,
the Seventh Circuit removed Attorney Hicks as counsel for C.N.,
as noted above. It also removed his name from the list of
counsel eligible to receive appointments under the federal
Criminal Justice Act and disbarred him from practicing before
that court. The Seventh Circuit's orders, however, did not
remove him as counsel in federal district court cases where he
had already been appointed, nor did they terminate his
eligibility to practice in the Eastern District.
¶37 On July 25, 2012, K.L. sent a letter to the Eastern
District requesting that the court advise him of the date and
time for his next court appearance. The court subsequently
notified him that his change of plea hearing was scheduled for
September 6, 2012. Attorney Hicks, however, failed to appear
for that hearing, which led to a lengthy expression of
frustration by the district court judge. The judge stated that
this was the second time that Attorney Hicks had failed to
appear for a district court hearing following his Seventh
19
No. 2014AP7-D
Circuit disbarment, that Attorney Hicks apparently held the
mistaken view that the Seventh Circuit disbarment had also
suspended him from practicing before the Eastern District, and
that Attorney Hicks had not bothered to seek clarification from
the Eastern District before deciding not to appear for hearings
in which he represented the defendant. The judge noted that
Attorney Hicks' actions were causing disruptions with both the
U.S. Marshal's Service, which brings defendants from custody to
the district court for appearances, and the court's calendar.
The judge indicated that he would hold Attorney Hicks
responsible for some or all of the expenses connected with his
failure to appear because Attorney Hicks had been "totally
irresponsible in his obligations as an officer of this court in
not communicating not only with the Court but more significantly
with his clients." The district court terminated Attorney
Hicks' appointment for K.L. and appointed successor counsel.
¶38 On that same date, Attorney Hicks was also scheduled
to appear on behalf of client F.W., whom Attorney Hicks had been
representing since September 2008. Since the beginning of 2012
F.W. had sent three letters to the Eastern District complaining
that Attorney Hicks had not been responding to his requests for
information and to discuss his upcoming sentencing hearing. In
one such letter, F.W. requested that new counsel be appointed to
replace Attorney Hicks due to his inattentiveness. On
September 6, 2012, when Attorney Hicks failed to appear for
K.L.'s hearing, the district court also removed him from
representing F.W. and appointed successor counsel for F.W.
20
No. 2014AP7-D
¶39 Several weeks after Attorney Hicks was removed from
representing K.L. and F.W., the chief judge of the Eastern
District entered an order removing Attorney Hicks from the list
of attorneys eligible to receive appointments to represent
indigent defendants in the Eastern District.
¶40 When the OLR notified Attorney Hicks of its
investigation of his conduct in these matters in October 2012,
Attorney Hicks initially responded by asserting that he was
working on compiling the necessary documents and information,
that he had "limited time to work on the grievances," and that
he would try to complete his work on the responses as soon as he
could. He did not, however, submit a response until
February 26, 2013, after this court had imposed the second
temporary suspension of his license due to his failure to
cooperate with the OLR's investigations. When the OLR requested
additional information, Attorney Hicks again failed to respond.
¶41 The referee determined that the OLR had failed to
prove by clear, satisfactory, and convincing evidence that
Attorney Hicks had violated SCR 20:1.16(d)11 by failing to file
11
SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
21
No. 2014AP7-D
motions to withdraw from representing K.L. and F.W. The referee
did conclude, however, that the OLR had adequately proven two
counts of failing to provide timely responses to the OLR, in
violation of SCR 22.03(2) and (6), which are enforced via
SCR 20:8.4(h).
Representation of Q.W.
¶42 In March 2012 Attorney Hicks was appointed to
represent Q.W. in a criminal case pending in the Milwaukee
County circuit court. Over the next approximately eleven
months, Attorney Hicks sent only two letters to Q.W. One letter
advised Q.W. of Attorney Hicks' appointment. The second letter
responded to one of Q.W.'s concerns regarding the evidence
against him. Attorney Hicks, however, failed to respond to four
letters that Q.W. sent to him, failed to send specific
information that Q.W. had requested, and failed to keep him
informed of developments in his case, all of which resulted in
Q.W. not knowing the status of his case by February 2013.
¶43 In addition, during the time that Attorney Hicks
represented Q.W., his license to practice law was twice
temporarily suspended due to his failure to cooperate with OLR
investigations concerning other matters. Attorney Hicks failed
to notify Q.W. of either temporary suspension. He also failed
to notify the court and opposing counsel of the temporary
suspensions. In fact, during the second temporary suspension
Attorney Hicks participated in a hearing on a motion filed by
Q.W. seeking to terminate Attorney Hicks' representation and to
obtain new counsel. At no time during the hearing did Attorney
22
No. 2014AP7-D
Hicks indicate that his license was then suspended. Ultimately,
unaware of Attorney Hicks' license status, the circuit court
denied Q.W.'s motion and kept Attorney Hicks on Q.W.'s case.
¶44 Attorney Hicks again failed to respond to the OLR's
request for a response to the grievance that Q.W. subsequently
filed.
¶45 The referee concluded that the OLR had proven five
counts of misconduct regarding Attorney Hicks' representation of
Q.W. and his response to the OLR's investigation. Attorney
Hicks violated SCRs 20:1.4(a)(2), (3), and (4) and 20:1.4(b) by
failing to properly communicate with Q.W. regarding the status
of his case, developments in his case, and the means by which
Attorney Hicks intended to defend him. Attorney Hicks' failure
to notify Q.W. of his two temporary license suspensions
constituted a violation of SCRs 22.26(1)(a) and (b) and
20:3.4(c). Similarly, Attorney Hicks' failure to notify the
court and opposing counsel of those same license suspensions
also violated SCRs 22.26(1)(c) and 20:3.4(c). When Attorney
Hicks appeared on Q.W.'s behalf while his license to practice
law in Wisconsin was suspended, he violated SCRs 22.26(2) and
20:3.4(c). Finally, Attorney Hicks' failure to submit a timely
response to Q.W.'s grievance violated SCR 22.03(2) and (6),
which are enforced via SCR 20:8.4(h).
Grievance Investigations Regarding M.W. and T.T.
¶46 Attorney Hicks was appointed to represent M.W. and
T.T. in their respective cases. The referee's findings did not
involve Attorney Hicks' representations of those two
23
No. 2014AP7-D
individuals, but rather focused on Attorney Hicks' failure to
respond to their grievances. The referee concluded that by
failing to submit timely responses to their grievances and doing
so only after the court had temporarily suspended his license,
Attorney Hicks had violated SCR 22.03(2) and (6), which are
enforced via SCR 20:8.4(h).
Conduct Following Second Temporary Suspension
¶47 Finally, the referee addressed a series of alleged
violations stemming from Attorney Hicks' conduct following the
second temporary suspension of his license on February 12, 2013.
By this time, Attorney Hicks had already been through the
process of having his license temporarily suspended and
obtaining the reinstatement of his license. One requirement
imposed on an attorney whose license is suspended, even on a
temporary basis, is to submit an affidavit to the OLR listing
the clients involved in pending matters at the time of the
suspension and demonstrating the attorney's compliance with the
suspension order and applicable rules, which would include
providing proper notice to clients, opposing counsel, and
courts. SCR 22.26(1)(e).12 On March 6, 2013, Attorney Hicks
12
SCR 22.26(1)(e) provides that, on or before the effective
date of a license suspension, an attorney whose license is
suspended shall:
Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing all of the following:
(i) Full compliance with the provisions of the
suspension or revocation order and with the rules and
(continued)
24
No. 2014AP7-D
filed an affidavit pursuant to that rule, which he himself
purported to notarize, that claimed that he had mailed written
notice of his temporary suspension to all of his clients,
notified the SPD, and notified each court in which he had a
pending case. He included a list of 14 clients that he asserted
showed "all clients and pending court matters."
¶48 Attorney Hicks' affidavit was false in multiple
respects. He had not provided proper notice to all of his
clients and to opposing counsel. He also had not notified a
number of judges before whom he had pending cases that his
license had been suspended. He also failed to list at least
nine pending cases in which he was counsel.
¶49 In addition, during his temporary suspension, Attorney
Hicks appeared in court of behalf of clients on at least 12
occasions. He did not advise those courts that he was
ineligible to appear at that time.
¶50 When the OLR asked Attorney Hicks for information
regarding his compliance with the post-suspension obligations
imposed by SCR 22.26, he again failed to respond.
procedures regarding the closing of the attorney's
practice.
(ii) A list of all jurisdictions, including
state, federal and administrative bodies, before which
the attorney is admitted to practice.
(iii) A list of clients in all pending matters
and a list of all matters pending before any court or
administrative agency, together with the case number
of each matter.
25
No. 2014AP7-D
¶51 The referee concluded that Attorney Hicks' post-
suspension conduct and his affidavit supported six counts of
misconduct. On two counts, the referee concluded that Attorney
Hicks had violated SCR 20:8.4(c)—once for purporting to notarize
his own affidavit and once for making multiple false statements
of fact within that affidavit. The referee also found that by
failing to notify his clients of his temporary suspension,
Attorney Hicks had violated SCRs 22.26(1)(a) and (b) and
20:3.4(c). Similarly, by failing to provide notice to both the
applicable courts and opposing counsel, Attorney Hicks violated
SCRs 22.26(1)(c) and 20:3.4(c). Attorney Hicks' repeated
appearances in court on behalf of clients during his temporary
suspension violated SCRs 22.26(2) and 20:3.4(c). Further,
Attorney Hicks' failure to respond to the OLR's inquiries again
violated SCR 22.03(2) and (6), which are enforced via
SCR 20:8.4(h).
¶52 Thus, in total the referee found violations on 3513
separate counts involving 12 client representations. Three
counts were withdrawn by the OLR. On four other counts and on
part of a fifth count, the referee concluded that the OLR had
not satisfied its burden of proof.
¶53 The referee commented that there were "several
disturbing patterns" in Attorney Hicks' misconduct. First,
13
On one of those counts, the referee did find that
Attorney Hicks had committed only part of the misconduct alleged
by the OLR.
26
No. 2014AP7-D
Attorney Hicks failed to engage in the necessary communication
with his clients. He would often send initial letters advising
them of his appointment, but then would repeatedly ignore
letters and telephone calls from those clients, resulting in a
failure to advise the clients of his strategy or to answer their
questions and concerns. The referee rejected Attorney Hicks'
excuse that he was too busy with jury trials and a high case
load to communicate with his clients. While he may indeed have
been forced by economic circumstances to carry a large case
load, the referee indicated that he still must comply with his
ethical obligation to share information with and answer
inquiries from his clients.
¶54 The second disturbing pattern noted by the referee was
Attorney Hicks' disregard for his obligation to provide timely
responses to the OLR. Indeed, the referee noted that Attorney
Hicks generally waited for his license to be temporarily
suspended before submitting a response. The referee noted that
he asked Attorney Hicks for an explanation as to his failure to
promptly respond and that Attorney Hicks "had no good
explanation."
¶55 The third disturbing pattern was Attorney Hicks'
repeated disregard of this court's rules regarding temporary
license suspensions. He blatantly continued to represent
clients and to appear in court as if nothing had changed. He
did not notify his clients, opposing counsel or the courts that
his license had been suspended.
27
No. 2014AP7-D
¶56 The referee indicated he was at a loss to explain this
conduct of Attorney Hicks, who otherwise appeared to be an
intelligent and competent attorney. Nonetheless, the referee
agreed with the OLR that Attorney Hicks' repeated and willful
disregard of his clients, his intentional refusal to respond to
the OLR, his intentional and repeated practice of law after his
license had been suspended, and his repetition of misconduct
that led to the 2012 public reprimand warranted a lengthy
suspension. Ultimately, the referee recommended that Attorney
Hicks' license to practice law in Wisconsin be suspended for a
period of two years.
¶57 After reviewing this matter and in light of the lack
of any argument from Attorney Hicks to the contrary, we find no
basis to conclude that the referee's findings of fact are
clearly erroneous, and we therefore adopt them. We further
agree with the referee that those detailed findings support
legal conclusions that Attorney Hicks engaged in 35 counts of
professional misconduct.
¶58 The issue then becomes what is the appropriate
discipline that is warranted by this misconduct. In light of
the pattern of misconduct that Attorney Hicks has exhibited and
his disregard for both his vulnerable clients and his
obligations as an officer of the court, we determine that a two-
year suspension of his license is required to impress upon him
the seriousness of his misconduct. See In re Disciplinary
Proceedings Against Lucius, 2008 WI 12, 307 Wis. 2d 255,
744 N.W.2d 605 (imposing two-year suspension on attorney found
28
No. 2014AP7-D
to have lacked diligence and failed to communicate in
representing multiple indigent criminal defendants).
¶59 We next turn to the issue of costs. The referee
recommended that the court impose the full costs of this
proceeding on Attorney Hicks. Our general policy is to do so,
and we see no reason to divert from that policy in this case,
especially where Attorney Hicks has not challenged the OLR's
statement of costs.
¶60 Finally, we do not impose any restitution obligation
on Attorney Hicks. The OLR has not sought restitution with
respect to any of Attorney Hicks' clients. See SCR
21.16(1m)(em) and (2m)(a)1 (the court may impose restitution in
instances of misappropriation or misapplication of funds).
¶61 IT IS ORDERED that the motion filed on behalf of the
Office of Lawyer Regulation to dismiss the notice of appeal
filed by Attorney Michael J. Hicks is denied, but due to the
failure of Michael J. Hicks to file an opening brief, this
matter has been considered by the court on a summary basis
without the benefit of briefs.
¶62 IT IS FURTHER ORDERED that the license of Michael J.
Hicks to practice law in Wisconsin is suspended for a period of
two years, effective March 18, 2016.
¶63 IT IS FURTHER ORDERED that Michael J. Hicks shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
29
No. 2014AP7-D
¶64 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Michael J. Hicks shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶65 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
30
No. 2014AP7-D
1
Office of Lawyer Regulation v. Michael J. Hicks
Court: Wisconsin Supreme Court
Date filed: 2016-02-17
Citations: 366 Wis. 2d 512, 2016 WI 9
Copy CitationsCombined Opinion