Office of Lawyer Regulation v. Michael J. Hicks

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2012 WI 11 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP2448-D 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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: February 10, 2012 2012 WI 11 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP2448-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Michael J. Hicks, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, FEB 10, 2012 v. A. John Voelker Acting Clerk of Supreme Court Michael J. Hicks, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 PER CURIAM. We review the stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Michael J. Hicks, regarding Attorney Hicks' professional handling of three client matters. misconduct in the The OLR and Attorney Hicks stipulate that Attorney Hicks committed professional misconduct in his handling of the matters and that he should be publicly reprimanded for his misconduct. The OLR is not seeking costs. No. 2011AP2448-D Upon careful consideration, we adopt the stipulated facts and impose a public reprimand. ¶2 Attorney Hicks was admitted to practice Wisconsin in 1984 and practices in Milwaukee. law in He has no prior disciplinary history. ¶3 Public In May 2008 Attorney Hicks was appointed by the State Defender's postconviction office and (SPD) appellate to represent proceedings. C.B. Attorney in Hicks received transcripts from parts of C.B.'s case in July 2008 but took no action on the case and did not contact C.B. Beginning in October 2008, C.B. complained to the SPD that he had not heard anything from Attorney Hicks. The SPD sent a number of letters to Attorney Hicks asking for a response. Attorney Hicks failed to respond. ¶4 In June 2009 C.B. filed a grievance against Attorney Hicks with the OLR. the OLR Attorney regarding Hicks In July 2009 the SPD filed a grievance with Attorney failed to Hicks' respond responses to the two grievances. order to show cause in January handling to the of OLR's C.B.'s case. requests for After this court issued an 2010, Attorney Hicks finally responded to the OLR. ¶5 alleging On October that 21, Attorney 2011, Hicks the OLR engaged in filed three a complaint counts misconduct with respect to his handling of C.B.'s case: [Count I] By failing to timely pursue [C.B.'s] postconviction or appellate interests in [C.B.'s case], or to timely close the case, file a no-merit report or withdraw from the case so that [C.B.] could 2 of No. represent himself or violated SCR 20:1.3.1 hire counsel, [Attorney] 2011AP2448-D Hicks [Count II] By failing to communicate in any way with [C.B.] between May 28, 2008 and July 2, 2009, [Attorney] Hicks violated SCR 20:1.4(a)(2), (3) and (4)2 and SCR 20:1.4(b).3 [Count III] By failing to timely file a response to grievances filed by [C.B.] and [the SPD], and doing so only after OLR obtained an order to show cause, [Attorney] Hicks violated SCR 22.03(2) and (6)4 via SCR 20:8.4(h).5 1 SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." 2 SCRs 20:1.4(a)(2), (3), and (4) state as follows: 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; (4) promptly comply with reasonable requests by the client for information; . . . . 3 SCR 20:1.4(b) states "[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." 4 SCRs 22.03(2) and (6) provide as follows: (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. 3 No. ¶6 The complaint second 2011AP2448-D in the matter detailed Attorney involved client Hicks' representation OLR's of K.K. Attorney Hicks was appointed by the SPD to represent K.K. in appealing his convictions in May 2008. Attorney Hicks took no action on K.K.'s case, nor did he contact K.K. K.K. complained to the SPD that he had not heard from Attorney Hicks. wrote to letter. Attorney Hicks directing him to respond The SPD to K.K.'s Attorney Hicks failed to respond to the SPD. ¶7 The The SPD filed a grievance with the OLR in July 2009. OLR notified Attorney requested a response. Hicks of the investigation Attorney Hicks failed to respond. court issued an order to show cause in January 2010. and This Attorney Hicks responded saying he did not dispute the grievance. Following receipt of the response, the director conduct further investigation and may compel respondent to answer questions, furnish documents, present any information deemed relevant to investigation. may the and the . . . (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. 5 SCR 20:8.4(h) states 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); . . . ." 4 No. ¶8 2011AP2448-D The OLR's complaint alleged the following counts of misconduct with respect to Attorney Hicks' representation of K.K.: [Count IV] By failing to timely pursue [K.K.'s] postconviction or appellate interests in [K.K.'s case], or to timely close the case, file a no-merit report or withdraw from the case so that [K.K.] could represent himself or hire counsel, [Attorney] Hicks violated SCR 20:1.3. [Count V] By failing to communicate in any way with [K.K.] between May 29, 2008 and July 1, 2009, [Attorney] Hicks violated SCR 20:1.4(a)(2), (3) and (4) and SCR 20:1.4(b). [Count VI] By failing to timely file a response to [the SPD's] grievance, and doing so only after OLR obtained an order to show cause, [Attorney] Hicks violated SCR 22.03(2) and (6) via SCR 20:8.4(h). ¶9 The complaint final involved postconviction and client Attorney appellate matter Hicks' detailed in representation proceedings. The Attorney Hicks in December certain actions in the case. of 2007 asking of SPD Attorney Hicks to represent C.S. in October of 2007. to the OLR's C.S. in appointed C.S. wrote that he take Attorney Hicks never responded to C.S., nor did he take any of the actions C.S. requested. C.S. complained to the SPD that he had not heard from Attorney Hicks. The SPD sent a letter to Attorney Hicks asking that he respond to C.S. Attorney Hicks failed to respond. ¶10 2009. the C.S. filed a grievance against Attorney Hicks in July The OLR notified Attorney Hicks of its investigation of C.S. documents. grievance and requested certain Attorney Hicks failed to respond. 5 information and This court issued No. an order to show cause in January 2010. 2011AP2448-D Attorney Hicks responded by saying he did not dispute the grievance. ¶11 The OLR's complaint alleged the following counts of misconduct with respect to Attorney Hicks' representation of C.S.: [Count VII] By failing to timely pursue [C.S.'s] postconviction or appellate interests in [C.S.'s case], or to timely close the case, file a no-merit report or withdraw from the case so that [C.S.] could represent himself or hire counsel, [Attorney] Hicks violated SCR 20:1.3. [Count VIII] By failing to adequately communicate with [C.S.] during the course of the representation, [Attorney] Hicks violated SCR 20:1.4(a)(2), (3) and (4) and SCR 20:1.4(b). [Count IX] By failing to timely file a response to [C.S.'s] grievance, and doing so only after OLR obtained an order to show cause, [Attorney] Hicks violated SCR 22.03(2) and (6) via SCR 20:8.4(h). ¶12 a On November 14, 2011, the OLR and Attorney Hicks filed stipulation whereby Attorney Hicks stipulated to the allegations contained in the OLR's complaint. The stipulation states the that Attorney Hicks fully understands misconduct allegations and the ramifications should the court impose the stipulated level of discipline. The stipulation also provides that Attorney Hicks understands his right to contest the matter and understands his right to consult with counsel, and that his entry into the stipulation was made knowingly and voluntarily and without the benefit of any negotiations for a reduction in either charges or sanctions. 6 No. ¶13 The OLR filed a memorandum in 2011AP2448-D support of the stipulation which states that in formulating the recommendation for a public reprimand, the OLR director considered a number of similar cases, including Public Reprimand of Jane Krueger Smith, 2006-5, Public Reprimand of Michael review of J. Masnica, 1999-7, and adopt the Private Reprimand 2006-1. ¶14 After stipulated facts reprimand. careful and find it the matter, appropriate to we impose a public We note that the public reprimand of Jane Krueger Smith involved facts very similar to those at issue here. Attorney Hicks, Attorney Smith was represent three criminal defendants appointed in by the postconviction Like SPD to matters and she took little or no action in any of those cases, failed to respond to repeated client inquiries, failed to respond to inquiries from the SPD, and failed to cooperate with the OLR's investigation into the grievances until this court ordered a temporary suspension of her law license. to impose similar discipline here. We find it appropriate Finally, because Attorney Hicks entered into a comprehensive stipulation under SCR 22.12, thereby obviating the need for the appointment of a referee and a full disciplinary proceeding, we do not impose costs in this matter. ¶15 IT IS ORDERED that Michael reprimanded for professional misconduct. 7 J. Hicks is publicly No. 1 2011AP2448-D