Office of Lawyer Regulation v. Tracy R. Eichhorn-Hicks
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2012 WI 18 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP2326-D 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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: March 1, 2012 2012 WI 18 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: FILED Office of Lawyer Regulation, MAR 1, 2012 Complainant, A. John Voelker Acting Clerk of Supreme Court v. Tracy R. Eichhorn-Hicks, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly proceeding involves reprimanded and attorney's license suspended. ¶1 PER CURIAM. This disciplinary two reciprocal discipline matters. In the first, the Supreme Court of Minnesota in 2000 suspended the license of Attorney Tracy Eichhorn-Hicks to practice law in Minnesota for a period of one year. In the second, that same court publicly reprimanded Attorney Eichhorn-Hicks in 2009 and placed him on two years of probation. No. ¶2 In light of Attorney Eichhorn-Hicks' 2011AP2326-D admission of these impositions of public discipline in another jurisdiction, we impose a public reprimand and a one-year suspension as discipline reciprocal to that imposed by the Supreme Court of Minnesota. Given Attorney Eichhorn-Hicks' failure to notify the Office of Lawyer Regulation (OLR) of these instances of public discipline, we conclude that the one-year suspension should be prospective in nature and not retroactive to the date of his Minnesota suspension. resolved without Finally, because this matter is being the need to appoint a referee and incur substantial expenses, we do not require Attorney Eichhorn-Hicks to pay the costs of this proceeding. ¶3 Attorney Eichhorn-Hicks was licensed to practice law in Minnesota in September 1975. to practice furnished to law the in In July 1984 he became licensed Wisconsin. State Bar The of most Wisconsin recent is a address law he firm in complaint, an Minneapolis, Minnesota. ¶4 On October 5, 2011, the OLR filed a order to answer, and a motion requesting the court to direct Attorney Eichhorn-Hicks to inform the court in writing of any claim, predicated upon the grounds set forth in SCR 22.22(3),1 1 SCR 22.22(3) provides as follows: The supreme court shall impose the identical discipline or license suspension unless one or more of the following is present: (a) The procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process. 2 No. 2011AP2326-D that the imposition of discipline identical to that imposed in Minnesota would be unwarranted, and of the factual basis for any such claim. The court granted the OLR's motion and issued such an order. ¶5 Attorney Eichhorn-Hicks did not file a specific response to the court's order, but he did file an answer to the OLR's complaint, court's order. Attorney which we will treat as a response to the With the exception of one technical correction, Eichhorn-Hicks' answer admitted allegations of the OLR's complaint. all of the factual Attorney Eichhorn-Hicks' answer affirmatively alleged "in mitigation" that he had not practiced law in either Minnesota or Wisconsin during the term of his Minnesota suspension. He therefore contended that it would be punitive and a violation of public policy for this court now to impose a reciprocal suspension of his license to practice law in Wisconsin. ¶6 forth Given Attorney the facts as August 21, 2000, the Eichhorn-Hicks' alleged in Supreme the Court admissions, OLR's of we complaint. Minnesota set On suspended Attorney Eichhorn-Hicks' license for a period of one year due to Attorney Eichhorn-Hicks' professional misconduct, including (b) There was such an infirmity of proof establishing the misconduct or medical incapacity that the supreme court could not accept as final the conclusion in respect to the misconduct or medical incapacity. (c) The misconduct justifies different discipline in this state. 3 substantially No. 2011AP2326-D 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). The suspension was based on Attorney Eichhorn-Hicks' admission to his professional misconduct and his stipulation that a one-year suspension of his license to practice law in Minnesota was an appropriate level of discipline.2 Attorney Eichhorn-Hicks did not report this suspension to the OLR, as he was required to do. See SCR 22.22(1). The OLR learned of this suspension through other sources in June 2011. ¶7 On publicly June 23, 2009, reprimanded professional the Supreme Court of Attorney involving misconduct Eichhorn-Hicks (1) his Minnesota for receipt on his two occasions of advance fee payments in a client matter in which there was no written fee agreement without depositing such funds into a client trust account, and (2) his failure to disclose during a disciplinary investigation the full amount of payments he had received for the representation of a client. re Disciplinary (Minn. 2009). was based on Action Against Eichhorn-Hicks, 767 the In N.W.2d 20 Like the 2000 suspension, this public reprimand Attorney Eichhorn-Hicks' 2 Attorney Eichhorn-Hicks' license to Minnesota was reinstated on February 8, 2002. 4 admission practice of law his in No. and his stipulation to 2011AP2326-D professional misconduct the level of discipline. Attorney Eichhorn-Hicks also did not timely inform the OLR of this public reprimand. ¶8 In addition to the public reprimand, the Minnesota Supreme Court also placed Attorney Eichhorn-Hicks on probation for a period of two years with a number of conditions. Under the terms of the Minnesota order, the period of probation was scheduled to expire in June 2011. The OLR's complaint does not allege that Attorney Eichhorn-Hicks violated any of the terms of his professional probation or that the probationary period was extended for any reason. ¶9 Under SCR 22.22(3), this court shall impose the identical discipline imposed by the other jurisdiction unless one of three exceptions are present. involve other situations jurisdiction where the deprived The first two exceptions disciplinary the proceeding respondent process or suffered from a lack of proof. in the attorney of due SCR 22.22(3)(a)-(b). Attorney Eichhorn-Hicks' answer to the OLR's complaint does not contain any allegation of a lack of due process or a lack of proof in the two Minnesota disciplinary proceedings at issue in this matter. Indeed, in each case Attorney Eichhorn-Hicks admitted that his conduct violated the Minnesota professional responsibility rules and stipulated to the level of discipline. ¶10 The third exception to the imposition of reciprocal discipline applies where the misconduct justifies substantially different discipline in Wisconsin. SCR 22.22(3)(c). Attorney Eichhorn-Hicks does not allege that this court's prior decisions 5 No. 2011AP2326-D in cases involving similar types of misconduct would justify a lesser sanction than his 2009 public reprimand or his 2000 oneyear suspension. It is not the nature of the public reprimand or the length of the suspension that he challenges. would be hard for Attorney Eichhorn-Hicks to Indeed, it argue for a substantially less severe level of discipline in Wisconsin given that he stipulated to the level of discipline in both Minnesota disciplinary cases. does not rules, apply we in impose Thus, we conclude that the third exception this case. both a Accordingly, public pursuant reprimand and a to our one-year suspension in this state as discipline that is identical to the discipline imposed in Minnesota in 2009 and 2000.3 ¶11 The issue raised by Attorney Eichhorn-Hicks' answer is not really whether a public reprimand and one-year suspension are appropriate levels of discipline, but whether a one-year suspension whether it imposed should by this be court retroactive 3 should to be effective August 21, now 2000, or the Although the Supreme Court of Minnesota attached a twoyear period of probation to the 2009 public reprimand, we do not impose a similar period of probation. Probation is not one of the forms of discipline that this court generally imposes. In reciprocal discipline matters where the other jurisdiction has imposed a period of probation, we have approximated the effect of such probation by ordering the respondent attorney to comply with the probationary order entered in the other jurisdiction. See, e.g., In re Disciplinary Proceedings Against Moree, 2004 WI 118, 275 Wis. 2d 279, 281, 684 N.W.2d 667 (published order). We do not do so in this case, however, because the two-year Minnesota probationary period already expired in June 2011. Thus, there is no longer a probationary order in the other jurisdiction with which Attorney Eichhorn-Hicks must comply. 6 No. effective date of the Minnesota suspension 2011AP2326-D order. Attorney Eichhorn-Hicks contends that because he did not practice law in Wisconsin during the 2000-2001 period of his Minnesota suspension, it would be punitive to preclude him from practicing law in Wisconsin for a prospective period of one year. ¶12 whether We reject Attorney Eichhorn-Hicks' argument. or Wisconsin not he during voluntarily the chose period of not his to practice Minnesota First, law in suspension, Attorney Eichhorn-Hicks was not precluded from practicing law in this state due to any disciplinary suspension. Thus, if we were now to make his Wisconsin suspension retroactive to 2000, he would effectively have avoided any discipline in Wisconsin for his professional misconduct. Eichhorn-Hicks' Wisconsin Second, the fact that Attorney license was not suspended simultaneously with his Minnesota license results solely from Attorney Eichhorn-Hicks' own regulatory authorities of his failure to suspension. notify this See, e.g., state's In re Disciplinary Proceedings Against Nickitas, 2006 WI 20, ¶¶4, 6-7, 289 Wis. 2d 18, 710 N.W.2d 464; In re Disciplinary Proceedings Against Rhees, (published 2003 order). WI 110, Although 263 Wis. 2d 703, Attorney 665 N.W.2d 256 Eichhorn-Hicks asserts that he was unaware of his obligation to do so, his failure to ascertain his legal and ethical obligations to this state is no excuse. Had he notified the OLR of his Minnesota suspension immediately after it had been imposed, as he was obligated to do, it is possible that his Wisconsin suspension may have been made coterminous with his Minnesota suspension. 7 Given that the No. 2011AP2326-D OLR learned of his suspension from other sources more than a decade after it was imposed, we perceive no unfairness in making the one-year suspension prospective from a specific date in the near future that arrangements to will allow transfer or Attorney Eichhorn-Hicks conclude any to make representations in Wisconsin. ¶13 his Finally, because Attorney Eichhorn-Hicks' admission of misconduct and his public discipline in Minnesota has avoided the necessity for the appointment of a referee and a more involved disciplinary proceeding, we do not impose the costs of this proceeding against him. ¶14 IT IS ORDERED that Tracy R. Eichhorn-Hicks is publicly reprimanded for his professional misconduct addressed in In re Disciplinary Action Against Eichhorn-Hicks, 767 N.W.2d 20 (Minn. 2009). ¶15 IT IS FURTHER ORDERED that the license of Tracy R. Eichhorn-Hicks to practice law in Wisconsin is suspended for a period of one year, effective April 2, 2012, as discipline reciprocal to that imposed by the Supreme Court of Minnesota in In re Disciplinary Action Against Eichhorn-Hicks, 615 N.W.2d 356 (Minn. 2000). ¶16 IT IS FURTHER ORDERED that Tracy R. Eichhorn-Hicks shall comply with the requirements of SCR 22.26 pertaining to the duties of a person whose Wisconsin has been suspended. 8 license to practice law in No. 1 2011AP2326-D
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