Office of Lawyer Regulation v. Michael J. Hicks

2016 WI 31

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2818-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Michael J. Hicks, Attorney at Law:

Office of Lawyer Regulation,
Complainant,
v.
Michael J. Hicks,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST HICKS

OPINION FILED: April 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
 2016 WI 31
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2818-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,
APR 29, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Michael J. Hicks,

Respondent.

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. We review the report of the referee,

Attorney James J. Winiarski. Based on the change of Attorney

Michael J. Hicks' answer to a no contest plea pursuant to SCR

22.14(2), the referee concluded that Attorney Hicks had

committed each of the 19 counts of professional misconduct

alleged in the complaint filed by the Office of Lawyer
Regulation (OLR). Referee Winiarski recommends that the court
 No. 2014AP2818-D

suspend the license of Attorney Michael J. Hicks for a period of

one year consecutive to the two-year suspension imposed in Case

No. 2014AP7-D, In re Disciplinary Proceedings Against Hicks,

2016 WI 9, 366 Wis. 2d 512, 875 N.W.2d 117 (Hicks II), and that

the court order Attorney Hicks to pay the full costs of this

disciplinary proceeding, which were $2,717.14 as of October 14,

2015.

¶2 Because no appeal from the referee's report has been

filed, we proceed with our review of this matter pursuant to SCR

22.17(2).1 After completing our review, we agree with the

referee that the allegations of the OLR's complaint, which

Attorney Hicks now does not contest, establish that he committed

19 counts of professional misconduct. While many of the acts

that form the basis for this complaint also occurred during the

time span at issue in Hicks II, we further agree that Attorney

Hicks' license should be suspended for an additional period of

one year, subsequent to the suspension imposed in Hicks II. We

do not impose any restitution obligation on Attorney Hicks, but
we do require him to pay the full costs of this disciplinary

proceeding.

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.

2
 No. 2014AP2818-D

¶3 Attorney Hicks was admitted to the practice of law in

this state in June 1984. He most recently practiced in West

Allis.

¶4 Attorney Hicks has been the subject of professional

discipline on two previous occasions. In 2012 this court

publicly reprimanded him based on his stipulation that he had

committed nine counts of professional misconduct arising out of

three client representations. In re Disciplinary Proceedings

Against Hicks, 2012 WI 11, 338 Wis. 2d 558, 809 N.W.2d 33 (Hicks

I). For each representation, Attorney Hicks stipulated that he

had failed to act with reasonable diligence or promptness, in

violation of Supreme Court Rule (SCR) 20:1.3, that he had failed

to communicate adequately with the client, in violation of SCR

20:1.4(a)(2), (3) and (4) and SCR 20:1.4(b), and that he had

failed to provide a timely response to the grievance filed with

the OLR, in violation of SCR 22.03(2) and (6), which are

enforced via SCR 20:8.4(h).

¶5 In February 2016 this court suspended Attorney Hicks'
license to practice law in Wisconsin for a period of two years,

effective March 18, 2016. Hicks II, 366 Wis. 2d 512, ¶62. In

that proceeding, Attorney Hicks was again found to have

committed four counts of failing to act with reasonable

diligence or promptness, five counts of failing to communicate

adequately with his clients, and 12 counts of failing to submit

timely written responses to OLR grievance investigations. In

addition, he was found to have failed on multiple occasions to
notify his clients, opposing counsel, or the relevant courts of
3
 No. 2014AP2818-D

the two temporary suspensions of his license. Indeed, Attorney

Hicks was found to have appeared in court on at least 12

occasions despite the temporary suspensions of his license. He

also was found to have submitted false affidavits to the OLR

regarding his compliance with rules regarding his temporary

suspensions. The general time frame for the actions underlying

these violations was from mid-2011 through 2013.

¶6 The OLR commenced this disciplinary proceeding by

filing a complaint alleging 19 counts of professional

misconduct. Attorney Hicks initially filed an answer in which

he denied 53 out of 72 numbered paragraphs of the OLR's

complaint and all of the allegations of professional misconduct.

He alleged as affirmative defenses that he had experienced

symptoms from significant health problems in 2012 and 2013 and

that he had also experienced a heavy caseload from late 2011

through early 2013, including a substantial number of cases

where he was successor counsel to one or more prior attorneys

and had difficulties establishing and continuing attorney/client
relationships and in defending the clients against pending

criminal charges.

¶7 Attorney Hicks subsequently withdrew his answer and

filed a written plea of no contest to all of the counts alleged

in the OLR's complaint. He agreed that the referee could use

the facts stated in the complaint as a basis to determine

violations of the Rules of Professional Conduct for Attorneys.

¶8 In Hicks II we described the general pattern of
Attorney Hicks' misconduct. Hicks II, 366 Wis. 2d 512, ¶12.
4
 No. 2014AP2818-D

Attorney Hicks focused his practice primarily on representing

indigent defendants in criminal cases through appointments

either by the Office of the State Public Defender (SPD) or the

court in which the case was pending. After acknowledging the

appointment, Attorney Hicks often ignored his clients' requests

for information for substantial periods of time and often failed

to follow through on necessary actions for the clients' defense.

When a grievance was subsequently filed with the OLR, Attorney

Hicks either failed to provide any initial response to the OLR

or he failed to respond to the OLR's requests for further

information.

¶9 At two separate points in time this court temporarily

suspended Attorney Hicks' license due to his willful failure to

cooperate with the OLR's grievance investigations. See Hicks

II, 366 Wis. 2d 512, ¶¶13-14. The first such suspension ran

from September 27, 2012, through October 16, 2012. The second

temporary suspension ran from February 12, 2013, through March

11, 2013. In each case, after the temporary suspension had been
imposed, Attorney Hicks began to cooperate with the OLR and to

provide the information and documents the OLR had requested.

The OLR then informed the court of Attorney Hicks' cooperation

and requested the reinstatement of Attorney Hicks' license to

practice law in Wisconsin, which this court granted.

¶10 The first seven counts in this proceeding relate to

Attorney Hicks' representation of client R.A. in two criminal

cases. During these representations, Attorney Hicks' license
was temporarily suspended twice, as discussed above. Attorney
5
 No. 2014AP2818-D

Hicks failed to notify R.A., the court, or opposing counsel of

either of the temporary suspensions.

¶11 In one of the cases, Attorney Hicks filed a motion on

R.A.'s behalf in September 2012 to withdraw his pleas. The

court held an evidentiary hearing on the motion on December 19,

2012. At the conclusion of that hearing, in response to a

question from the court, Attorney Hicks responded that he wanted

to submit argument on the motion in writing. The court then

established a briefing schedule. Attorney Hicks, however, did

not file a post-hearing brief on R.A.'s behalf, nor did he

inform the court that he would not be doing so. Thus, Attorney

Hicks did not make any argument on the motion, either orally or

in writing, after the evidentiary hearing. When no brief was

filed on R.A.'s behalf, the state eventually filed its own

written argument.

¶12 In a series of letters R.A. sent to Attorney Hicks in

December 2012 and January 2013, R.A. asked Attorney Hicks about

matters concerning the expected post-hearing brief. He also
expressed concern that Attorney Hicks had not been in contact

with him since the December 19, 2012 evidentiary hearing and

that he had failed to respond to either R.A.'s letters or his

parents' efforts to prod Attorney Hicks to communicate with R.A.

Attorney Hicks did not respond to R.A.'s letters except to

provide certain documents to R.A. without any substantive

comment. Attorney Hicks did not disclose to R.A. that he had

decided not to file a post-hearing brief on the motion.

6
 No. 2014AP2818-D

¶13 The circuit court had scheduled a conference for

February 8, 2013, at which it expected to issue its ruling on

R.A.'s motion. According to electronic docket records, Attorney

Hicks did appear on that date, but he did not arrange for R.A.

to appear. The court noted that Attorney Hicks had not filed a

brief or advised the court that he would not be doing so. The

court adjourned the matter until February 26, 2013, and ordered

that R.A. be produced in court on that date. It also ordered

Attorney Hicks to advise R.A. of the reason why the court had

not issued its decision on his motion on that date. Attorney

Hicks did send a letter to R.A. advising him of the new date for

the court's decision, but did not inform him that Attorney Hicks

had decided not to file a post-hearing brief on R.A.'s behalf.

¶14 On February 26, 2013, although he was subject to the

second temporary suspension of his license, Attorney Hicks

appeared in court for what was scheduled to be the issuance of

the court's oral ruling on R.A.'s motion to withdraw his pleas.

Because of a communication error, R.A. was not produced for that
court date. The matter was therefore continued until April 5,

2013.

¶15 R.A. again sent a letter to Attorney Hicks expressing

concern at Attorney Hicks' failure to respond to his letters or

to the efforts of his family members to spur communication.

Attorney Hicks did not respond and still did not advise R.A.

that he had decided not to file any post-hearing brief in

support of R.A.'s motion.

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 No. 2014AP2818-D

¶16 Prior to the April 5, 2013 appearance, R.A. wrote to

the circuit court and asked for the appointment of new counsel.

The court allowed Attorney Hicks to withdraw on that date so

that the SPD could appoint new counsel for R.A. The court ruled

that successor counsel would be allowed to file a written

argument in support of R.A.'s motion to withdraw his pleas.

¶17 In March 2013 R.A. filed a grievance against Attorney

Hicks with the OLR. In April 2013 and again in December 2013,

the OLR asked Attorney Hicks for a response to R.A.'s grievance,

but Attorney Hicks did not respond. Only after the OLR had

filed yet another motion for a temporary suspension and this

court had issued an order to show cause did Attorney Hicks

finally submit a written response to R.A.'s grievance and

provide requested documents to the OLR.

¶18 The referee concluded that the allegations in the

OLR's complaint concerning R.A. adequately supported the

following seven counts of professional misconduct:

[Count One] By requesting to argue [R.A.'s] motion to
withdraw his plea in writing following the evidentiary
phase of the hearing on the motion, and then failing
to file any written (or oral) argument, [Attorney]
Hicks violated SCR 20:1.3.2

2
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."

8
 No. 2014AP2818-D

[Count Two] By failing to respond to [R.A.'s]
repeated requests for information, [Attorney] Hicks
violated SCR 20:1.4(a)(4).3

[Count Three] By failing to provide [R.A.] with a
copy of the State's written argument brief and to
promptly advise [R.A.] of [Attorney] Hicks' decision
not to file a post-hearing argument brief, [Attorney]
Hicks violated SCR 20:1.4(a)(2) and (3).4

[Count Four] By failing to provide written notice to
[R.A.] of his . . . September 27, 2012 and February
12, 2013 suspensions, [Attorney Hicks] violated SCR
22.26(1)(a) and (b).5

[Count Five] By failing to provide written notice of
his September 27, 2012 suspension to the court and
opposing counsel in [R.A.'s two pending cases] and by
failing to provide written notice of his February 23,
2013 suspension to the court and opposing counsel in

3
SCR 20:1.4(a)(4) provides in part: "A lawyer shall . . .
promptly comply with reasonable requests by the client for
information . . . ."
4
SCR 20:1.4(a)(2) and (3) provide: "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 . . . .
5
Violations of SCR 22.26(1) for failing to provide written
notices of suspensions to clients, courts, and opposing counsel
are enforced via 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."

9
 No. 2014AP2818-D

[one of R.A.'s pending cases], [Attorney] Hicks
violated SCR 22.26(1)(c).6

[Count Six] By practicing law in Wisconsin at a time
when his license to practice law was suspended,
including by appearing on behalf of [R.A.] in [one of
R.A.'s cases], [Attorney Hicks] violated SCR 22.26(2).7

[Count Seven] By failing to timely file a response to
[R.A.'s] grievance, [Attorney] Hicks violated SCR
22.03(2) and (6),8 enforced via SCR 20:8.4(h).9

6
SCR 22.26(1)(c) provides: "On or before the effective
date of license suspension or revocation, an attorney whose
license is suspended or revoked shall do all of the
following: . . . (c) 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."
7
SCR 22.26(2) provides: "An attorney whose license to
practice law is suspended or revoked or who is suspended from
the practice of law may not engage in this state in the practice
of law or in any law work activity customarily done by law
students, law clerks, or other paralegal personnel, except that
the attorney may engage in law related work in this state for a
commercial employer itself not engaged in the practice of law.

Practicing law in violation of a suspension order by this
court and this court's rules would also appear to constitute a
violation of SCR 20:8.4(f).
8
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
(continued)
10
 No. 2014AP2818-D

¶19 Counts eight through twelve arise out of Attorney

Hicks' representation of L.S. during the early stages of his

criminal case in the first half of 2013. Less than a month

after his appointment to represent L.S., Attorney Hicks' license

was temporarily suspended for the second time. He failed to

notify L.S., the court, or opposing counsel of the suspension.

While his license was suspended, he appeared at a scheduling

conference on behalf of L.S.

¶20 Attorney Hicks was removed as counsel for L.S. on May

31, 2013. During the roughly four months of the representation,

Attorney Hicks had not communicated with L.S. regarding trial

strategy or what Attorney Hicks was doing to prepare for trial.

¶21 Once again, Attorney Hicks did not respond to the

OLR's multiple requests for information after L.S. filed a

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.
9
SCR 20:8.4(h) provides: "It is professional misconduct
for a lawyer to: . . . (h) 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) . . . .

11
 No. 2014AP2818-D

grievance against him. Only after the OLR filed another motion

for a temporary suspension and this court issued an order to

show cause did Attorney Hicks finally file a response to L.S.'s

grievance.

¶22 On the basis of these facts, the referee concluded

that Attorney Hicks had committed the following five counts of

misconduct:

[Count Eight] By failing to consult with [L.S.]
regarding trial strategy and preparation prior to his
February 12, 2013 suspension or between March 12, 2013
and May 31, 2013, [Attorney] Hicks violated SCR
20:1.4(a)(2).

[Count Nine] By appearing on behalf of [L.S.] in
[L.S.'s criminal case] at a time when his license to
practice law was suspended, [Attorney] Hicks violated
SCR 22.26(2).

[Count Ten] By failing to provide written notice of
his February 12, 2013 suspension to [L.S.], [Attorney]
Hicks violated SCR 22.26(1)(a) and (b).

[Count Eleven] By failing to provide written notice
of his February 12, 2013 suspension to the court and
opposing counsel in [L.S.'s criminal case], [Attorney]
Hicks violated SCR 22.26(1)(c).

[Count Twelve] By failing to timely file a response
to [L.S.'s] grievance, [Attorney] Hicks violated SCR
22.03(2) and (6), enforced via SCR 20:8.4(h).
¶23 Counts thirteen through seventeen relate to Attorney

Hicks' representation of T.C. In December 2012 Attorney Hicks

was appointed as successor counsel for T.C. In January 2013

T.C. sent a letter to Attorney Hicks, in which he asked Attorney

Hicks to send him a copy of discovery materials received from
the state and raised concerns about his case. T.C. sent two

12
 No. 2014AP2818-D

more such letters to Attorney Hicks over the next approximately

seven months. Attorney Hicks sent T.C. two letters about the

rescheduling of T.C.'s trial, but did not communicate with T.C.

about the matters raised in his letters, did not discuss his

preparation or strategy for trial, and did not provide a copy of

the requested discovery.

¶24 At a meeting with Attorney Hicks on August 18, 2013,

T.C. repeated his request for a copy of the discovery materials

and raised a number of questions about his case. Attorney Hicks

promised T.C. that they would meet again prior to the trial to

discuss T.C.'s defense. Over the following two months, however,

Attorney Hicks did not provide T.C. with the requested discovery

nor did he communicate with T.C. regarding his trial preparation

and strategy.

¶25 On October 21, 2013, pursuant to Attorney Hicks'

advice to accept a plea agreement he had negotiated with the

prosecutor, T.C. pled guilty to the pending charges. After

entering the plea, however, T.C. began pursuing the withdrawal
of his plea. On January 23, 2014, Attorney Hicks was allowed to

withdraw as T.C.'s counsel.

¶26 During the time that Attorney Hicks represented T.C.,

his license to practice law was suspended for the second time.

Attorney Hicks, however, did not notify T.C., the court, or

opposing counsel of the suspension.

¶27 As had occurred in the other matters, Attorney Hicks

initially did not provide all of the documents and information
requested by the OLR, although in this instance he did provide
13
 No. 2014AP2818-D

some documents. Ultimately, Attorney Hicks filed the response

sought by the OLR after the OLR had moved for another temporary

suspension and this court had issued an order to show cause.

¶28 On the basis of these facts, the referee concluded

that there was a sufficient basis to support five counts of

misconduct:

[Count Thirteen] By failing between the date on which
he received [T.C.'s] letter in January 2013 and
February 12, 2013, between March 11, 2013 and August
16, 2013, and between August 18, 2013 and October 20,
2013, to communicate with [T.C.] regarding the issues
raised in [T.C.'s] January 2013 letter and to
otherwise consult with [T.C.] regarding trial strategy
and preparation, thereby preventing [T.C.] from
adequately understanding and participating in his own
defense, [Attorney] Hicks violated SCR 20:1.4(a)(2).

[Count Fourteen] By failing to timely provide [T.C.]
with a complete copy of the discovery materials,
despite [T.C.'s] requests, [Attorney] Hicks violated
SCR 20:1.4(a)(4).

[Count Fifteen] By failing to provide a written
notice to [T.C.] of his February 12, 2013 suspension,
[Attorney] Hicks violated SCR 22.26(1)(a) and (b).

[Count Sixteen] By failing to provide written notice
to the court and opposing counsel in [T.C.'s pending
criminal case] that his license to practice law had
been suspended on February 12, 2013, [Attorney] Hicks
violated SCR 22.26(1)(c).

[Count Seventeen] By failing to timely file a
response to [T.C.'s] grievance, [Attorney] Hicks
violated SCR 22.03(2) and (6), enforced via SCR
20:8.4(h).
¶29 The last two counts alleged in the OLR's complaint

arise from Attorney Hicks' appointment to represent R.G. in a
criminal case. By the time of Attorney Hicks' appointment in

14
 No. 2014AP2818-D

August 2012, R.G. had been found guilty of three felonies in a

jury trial. During the time Attorney Hicks represented R.G.,

his license was temporarily suspended for the first time, but he

failed to provide the required notices.

¶30 The referee concluded that Attorney Hicks had engaged

in the following two counts of misconduct:

[Count Eighteen] By failing to provide written notice
of his September 27, 2012 suspension to [R.G.],
[Attorney] Hicks violated SCR 22.26(1)(a) and (b).

[Count Nineteen] By failing to provide written notice
of his September 27, 2012 suspension to the court and
opposing counsel in [R.G.'s pending criminal case],
[Attorney] Hicks violated SCR 22.26(1)(c).
¶31 After Attorney Hicks filed his plea of no contest to

the factual allegations and claims of professional misconduct

summarized above, the referee held a hearing at which the OLR

and Attorney Hicks were offered the opportunity to submit

evidence and argument regarding the appropriate sanction,

including evidence and argument regarding mitigating and

aggravating factors.

¶32 In his report, the referee noted that in Hicks II,

Attorney Hicks had offered little explanation for his

misconduct. He had essentially claimed that his caseload had

been the cause for not communicating with his clients and for

failing to provide timely responses to the OLR's investigations

of the grievances filed against him.

¶33 The referee further stated that in the present case,

Attorney Hicks had provided little additional argument to
explain his actions. He did, however, point to the affirmative

15
 No. 2014AP2818-D

defenses in his initial answer to the complaint, where he had

alleged that during 2012 and early 2013, he had been suffering

from significant health problems. Attorney Hicks asserted that

those medical conditions had prevented him from working as many

hours as he needed to represent his clients properly. The

referee found, however, that aside from his personal testimony

at the sanction hearing, Attorney Hicks had not offered any

evidence to support his claims that he had suffered severe

medical problems and that those conditions had been a cause of

his failures to serve his clients properly.

¶34 The referee rejected Attorney Hicks' claim that his

medical conditions had prevented him from meeting his ethical

obligations to his clients. The referee noted that there was no

testimony that Attorney Hicks had been forced to take a leave of

absence or had been unavailable in his practice for extended

periods of time. On the other hand, there were extended periods

of time during these representations when Attorney Hicks had

little or no contact with his clients. Further, Attorney Hicks
also again claimed in his plea of no contest that he had an

overwhelming caseload during the relevant time period. The

referee noted that Attorney Hicks had been able to handle many

other criminal cases in which there were court hearings. Given

that fact, the referee could not accept that Attorney Hicks'

medical conditions had actually caused the lapses in diligence

and communication for the four clients whose cases were the

subjects of this proceeding.

16
 No. 2014AP2818-D

¶35 The referee also pointed to the disturbing patterns he

had discussed in his report in Hicks II. 366 Wis. 2d 512, ¶¶53-

55. Those patterns include largely ignoring clients after being

appointed to represent them, failing to keep his clients

reasonably informed about their cases, and failing to appreciate

the need to respond to grievances filed against him.

¶36 The referee recognized that the misconduct at issue in

the present case occurred in roughly the same time period and

was of the same types as the misconduct at issue in Hicks II.

He therefore questioned whether the OLR in Hicks II would have

sought a suspension longer than two years if all of the

misconduct in this case had been included in that case.

Ultimately, he concluded that the additional 19 counts of

misconduct at issue here merited an additional one-year period

of suspension consecutive to the two-year suspension imposed in

Hicks II. He determined that if the OLR had "charged Attorney

Hicks with all of the counts in a single disciplinary complaint,

a three year suspension would have been reasonable and
appropriate." The referee also determined that the misconduct

found in this disciplinary proceeding, when considered by

itself, merited a one-year suspension. The referee indicated

that he believed a one-year suspension was justified by the

analyses set forth in two cases involving Attorney Patrick

Cooper. In re Disciplinary Proceedings Against Cooper, 2007 WI

37, 300 Wis. 2d 61, 729 N.W.2d 206 (imposing three-year

suspension due to 35 counts of misconduct); In re Disciplinary
Proceedings Against Cooper, 2013 WI 55, 348 Wis. 2d 266, 833
17
 No. 2014AP2818-D

N.W.2d 88 (imposing two-year suspension, retroactive to and

consecutive to the expiration of the 2007 suspension as a result

of 42 counts of misconduct). The referee considered Attorney

Hicks' misconduct to be less egregious than Attorney Cooper's

misconduct, which would support a consecutive one-year

suspension in this case.

¶37 The OLR did not request, and the referee did not

recommend, that the court require Attorney Hicks to pay

restitution to anyone as a result of his misconduct in this

case. The referee did recommend that the court impose the full

costs of this proceeding on Attorney Hicks, noting that there

did not appear to be any reason to depart from the court's

general practice of imposing full costs on attorneys found to

have committed misconduct.

¶38 When we review a referee's report and recommendation

in an attorney disciplinary case, we affirm the referee's

findings of fact unless they are found to be clearly erroneous,

but we 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. We 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.

¶39 Given Attorney Hicks' no contest plea, we accept the
referee's factual findings as taken from the OLR's complaint.
18
 No. 2014AP2818-D

We also agree with the referee that those factual findings are

sufficient to support a legal conclusion that Attorney Hicks

engaged in the professional misconduct set forth in the 19

counts described above.

¶40 The primary issue in this matter is what is the

appropriate level of discipline for the misconduct found in this

case and whether that discipline should be imposed concurrent

with or consecutive to the two-year suspension imposed in Hicks

II.

¶41 We confronted a similar issue regarding the timing of

discipline in In re Disciplinary Proceedings Against Osicka,

2014 WI 34, 353 Wis. 2d 675, 847 N.W.2d 333 (Osicka V). The

issue of whether the 60-day suspension recommended in that case

should be concurrent with or consecutive to another 60-day

suspension arose because the misconduct at issue (three counts

stemming from one representation and subsequent investigation)

occurred during the same time period that other misconduct

occurred, which was the subject of a separate disciplinary
proceeding, In re Disciplinary Proceeding Against Osicka, 2014

WI 33, 353 Wis. 2d 656, 847 N.W.2d 343 (Osicka IV). In other

words, all of the misconduct alleged and found in Osicka V

occurred prior to the filing of the complaint in Osicka IV and

could have been included in that proceeding. Further, the

referee, who handled both disciplinary proceedings, concluded

that if the OLR had brought all of the claims of misconduct in a

single proceeding, the proper sanction for all of the misconduct
would still have been a suspension of 60 days. This court
19
 No. 2014AP2818-D

agreed with that conclusion. Accordingly, the court imposed a

60-day suspension in Osicka V, but made it run concurrently with

the 60-day suspension imposed in Osicka IV.

¶42 The present case is different from Osicka V in at

least two crucial ways. Most importantly, the timing of the

misconduct and of the filing of the two complaints is different.

The complaint in Hicks II was filed on January 2, 2014, and the

complaint in the present case was filed approximately 11 months

later in December 2014. While much of the misconduct found in

this case occurred in 2012 and 2013, before the filing of the

complaint in Hicks II, some of the misconduct at issue here

continued into March 2014, after the filing of the Hicks II

complaint. Specifically, with respect to the investigation of

the grievances involving R.A., L.S., and T.C., the OLR was still

attempting to obtain information from Attorney Hicks in January

and February 2014.10 Indeed, letters requesting responses

regarding those grievances were served on Attorney Hicks on

January 24, 2014. When Attorney Hicks still did not respond,
the OLR moved this court for a temporary suspension of Attorney

Hicks' license on February 24, 2012. This court then issued an

order to show cause. Attorney Hicks' failure to cooperate with

10
The only counts relating to Attorney Hicks'
representation of R.G. involved Attorney Hicks' failure to
provide notice of his September 27, 2012 temporary suspension.
Thus, it is true that those counts were complete well before the
January 2, 2014 filing of the complaint in Hicks II and could
have been included in that complaint.

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each of those three investigations, which was continuing

misconduct, did not end until the latter part of March 2014,

nearly three months after the OLR filed its complaint in Hicks

II. Thus, while it would have been possible for the OLR to have

waited a few more months so that it could have included all of

the counts of misconduct in one proceeding, it did not know in

January 2014 when or if Attorney Hicks would provide responses

to those grievances and whether any such responses might impact

which claims of misconduct it would then pursue in a formal

complaint. Unlike the proceedings involving Attorney Osicka,

this is not a situation where all of the misconduct was over

prior to the filing of the first complaint.

¶43 In addition, the nature and extent of the misconduct

in this case is different from the misconduct found in Osicka V.

In Osicka V, the OLR alleged, and the referee found, that

Attorney Osicka had engaged in three counts of misconduct

arising out of a single misrepresentation. Those three counts

were similar in nature and degree to the four counts of
misconduct alleged in Osicka IV. By contrast, in the present

case there are an additional 14 counts of misconduct relating to

the representations of four additional clients. We conclude

that the addition of these facts and counts of misconduct would

have changed the nature of Hicks II and would have called for a

suspension greater than two years.

¶44 In Hicks II, we cited In re Disciplinary Proceedings

Against Lucius, 2008 WI 12, 307 Wis. 2d 255, 744 N.W.2d 605, as
support for the two-year suspension we imposed on Attorney
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Hicks. While the nature of some of the misconduct was similar

(lack of diligence and failure to communicate), Lucius involved

10 counts of misconduct arising out of six client

representations. Hicks II involved findings of misconduct on 35

counts arising out of 12 client representations. This

demonstrates that each disciplinary proceeding must be

considered on its own facts and that there are no perfect

matches in terms of discipline between disciplinary proceedings.

¶45 Adding another 14 counts of misconduct and another

four clients, however, takes reliance on Lucius for a two-year

suspension beyond the breaking point. We conclude that if all

49 counts of misconduct would have been alleged in a single

case, the level of discipline would have been greater than the

two-year suspension we imposed in Hicks II.

¶46 Given that the nature of the misconduct in this

proceeding is similar, but that the number of clients involved

is less than in either Hicks II or Lucius, we conclude that an

additional one-year suspension is an appropriate level of
discipline to impose in this case. We make that one-year

suspension consecutive to the two-year suspension imposed in

Hicks II.

¶47 As was the case in Hicks II, 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).
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¶48 Finally, we turn to the issue of costs. The OLR

requested $2,717.14 in costs, and the referee recommended that

the court follow its usual practice in requiring Attorney Hicks

to pay the full amount of costs. We agree that Attorney Hicks

should bear the full costs of this disciplinary proceeding.

While he did ultimately enter a plea of no contest with respect

to the 19 counts of misconduct, his initial answer denied most

of the substantive allegations in the OLR's complaint, requiring

the litigation of this matter for at least a period of time. In

addition, even once he entered a no contest plea, there still

remained the matter of the proper level of discipline, which

required a short hearing before the referee and the preparation

of a referee's report. Finally, Attorney Hicks has not objected

to the amount of costs requested by the OLR.

¶49 IT IS ORDERED that the license of Michael J. Hicks to

practice law in Wisconsin is suspended for a period of one year,

effective March 18, 2018, consecutive to the two-year suspension

imposed in Hicks II, 366 Wis. 2d 512, ¶62.
¶50 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.

¶51 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.

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¶52 IT IS FURTHER ORDERED that compliance with all

conditions of this order is required for reinstatement. See

SCR 22.29(4)(c).

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