Office of Lawyer Regulation v. Tracy R. Eichhorn-Hicks
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2023 WI 23 SUPREME COURT OF WISCONSIN CASE NO.: 2022AP304-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Tracy R. Eichhorn-Hicks, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Tracy R. Eichhorn-Hicks, Respondent. DISCIPLINARY PROCEEDINGS AGAINST EICHHORN-HICKS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: Per curiam. NOT PARTICIPATING: ATTORNEYS: March 28, 2023 2023 WI 23 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2022AP304-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 28, 2023 Complainant, v. Sheila T. Reiff Clerk of Supreme Court Tracy R. Eichhorn-Hicks, Respondent. ATTORNEY disciplinary proceeding. Attorney’s license suspended indefinitely. ¶1 has PER CURIAM. filed asking a this The Office of Lawyer Regulation (OLR) complaint under court suspend to Supreme Court Rule indefinitely the (SCR) 22.22 license of Attorney Tracy R. Eichhorn-Hicks due to a medical incapacity as a reciprocal action to a transfer to "disability inactive status" ordered by the Supreme Court of Minnesota in a pending disciplinary proceeding. In re Disciplinary Action against Eichhorn-Hicks, No. A20-1123, unpublished order (Minn. S. Ct. No. December 15, 2020). 2022AP304-D Having reviewed the OLR's complaint and the relevant documents from the Minnesota proceeding, we conclude that a reciprocal incapacity should indefinite be imposed suspension on Attorney due to medical Eichhorn-Hicks's license to practice law in Wisconsin. ¶2 Attorney Eichhorn-Hicks was admitted to the practice of law in Minnesota in 1975. He was admitted to the practice of law in Wisconsin in July 1984. He most recently practiced law in Minneapolis. ¶3 instances Attorney Eichhorn-Hicks has been the subject of three of public discipline in this state, all of which occurred as discipline reciprocal to that imposed by the Supreme Court of Minnesota. Minnesota In 2012, this court addressed two separate disciplinary actions by both publicly reprimanding Attorney Eichhorn-Hicks and imposing a one-year suspension of his Wisconsin license. In re Disciplinary Proceedings Against Eichhorn-Hicks, 2012 WI 18, 338 Wis. 2d 753, 809 N.W.2d 379 (Eichhorn-Hicks I).1 In 2019, pursuant to Attorney Eichhorn- The two underlying Minnesota disciplinary proceedings were In re Disciplinary Action Against Eichhorn-Hicks, 767 N.W.2d 20 (Minn. 2009) (public reprimand for (1) receipt of advance fee payments without a written fee agreement and without depositing the funds into a client trust account and (2) failing to disclose information during a disciplinary investigation), and In re Disciplinary Action Against Eichhorn-Hicks, 615 N.W.2d 356 (Minn. 2000) (one-year suspension for misconduct including misuse of client trust account, failure to maintain proper trust account records, temporary misappropriation of trust account funds, making a false certification on attorney registration statements, and making false statements to disciplinary authorities). 1 2 No. Hicks's stipulation, this court suspended 2022AP304-D Attorney Eichhorn- Hicks's license to practice law in Wisconsin for a period of 120 days and ordered him to comply with conditions imposed by the Supreme Court of Minnesota. In re Disciplinary Proceedings Against Eichhorn-Hicks, 2019 WI 91, 388 Wis. 2d 478, 933 N.W.2d 106 (Eichhorn-Hicks II).2 We concluded that the suspension and the requirement to comply with the Minnesota conditions were the best way to replicate the discipline imposed by the Supreme Court of Minnesota. Attorney Eichhorn-Hicks's license remains subject to this disciplinary suspension. ¶4 In addition to the continuing disciplinary suspension, Attorney Eichhorn-Hicks's license to practice law in Wisconsin is also currently suspensions. Wisconsin In license subject to October 2018, was a number Attorney administratively of administrative Eichhorn-Hicks's suspended due to his failure to pay his State Bar dues and to submit a signed client trust account certification. In June 2019, Attorney Eichhorn- Hicks's Wisconsin license was also administratively suspended for failure to comply with mandatory continuing legal education (CLE) reporting requirements. Those administrative suspensions have not been lifted. ¶5 and order This proceeding began with the filing of a complaint to answer. Attorney Eichhorn-Hicks subsequently submitted an admission of service, but he did not file an answer The underlying Minnesota disciplinary proceeding was In re Disciplinary Action Against Eichhorn-Hicks, 916 N.W.2d 32 (Minn. 2018). 2 3 No. to the complaint. 2022AP304-D Attorney Eichhorn-Hicks also did not respond to the court's order asking him whether there were any grounds under SCR 22.22(3) for not imposing a reciprocal suspension for medical incapacity. We therefore take the allegations of the OLR's complaint as true. ¶6 The OLR's complaint and the attached certified records from the Supreme Court of Minnesota show that in August 2020 the Minnesota Office of Lawyers Professional Responsibility (MOLPR) filed a disciplinary proceeding against Attorney Eichhorn-Hicks. In re Disciplinary Action Against Eichhorn-Hicks, No. A20-1123 (Minn. S. Ct.) Eichhorn-Hicks The had MOLPR's complaint violated a alleged substantial that number Attorney of the Minnesota Rules of Professional Conduct in three separate client representations. Minnesota The complaint asked that the Supreme Court of suspend or disbar Attorney practice of law in that state. handwritten answer to the Eichhorn-Hicks from the Attorney Eichhorn-Hicks filed a MOLPR's complaint. In addition to responding to the allegations of the complaint, many of which Attorney Eichhorn-Hicks admitted, the answer contained two pages of narrative describing a series of medical problems that Attorney Eichhorn-Hicks had encountered over the preceding three years. ¶7 In response to that narrative, the MOLPR Director filed a motion to transfer Attorney Eichhorn-Hicks to disability inactive status under Rule 28(a) and (c)(1) of the Minnesota Rules on Lawyers Professional Responsibility (MRLPR), alleging that Attorney Eichhorn-Hicks was 4 not currently competent to No. represent clients. 2022AP304-D Rule 28(c)(1) of the MRLPR provides that in the event that a respondent lawyer in a disciplinary proceeding alleges that the lawyer is disabled and unable to assist in the defense of the proceeding, the Supreme Court of Minnesota may transfer the lawyer to "disability inactive status." Eichhorn-Hicks stipulated to the Director's Attorney motion. After reviewing the stipulation and the case file, the Supreme Court of Minnesota accepted the stipulation and transferred Attorney Eichhorn-Hicks to disability inactive status in that state. ¶8 In the context of a request for a reciprocal medical incapacity suspension, SCR 22.22(3) states that this court "shall impose the identical discipline or license suspension" for medical satisfied: was so incapacity unless one of two exceptions is either (1) the procedure in the other jurisdiction lacking in notice or opportunity to be heard as to constitute a deprivation of due process or (2) there was such an infirmity of proof in the other jurisdiction that this court could not accept jurisdiction.3 alleged that as final the determination of the other As noted above, Attorney Eichhorn-Hicks has not either of these exceptions applies to his situation. We have reviewed the documents from the Minnesota proceeding, and we conclude that neither exception applies. Moreover, it is important to remember that Attorney EichhornThere is a third exception in SCR 22.22(3), but it does not apply to medical incapacity situations. The third exception to the requirement to impose reciprocal discipline occurs when "[t]he misconduct justifies substantially different discipline in this state." SCR 22.22(3). 3 5 No. Hicks ultimately stipulated to inactive status in Minnesota. the transfer to 2022AP304-D disability Thus, we are required by our rules to impose an identical medical incapacity suspension in this state, and it is fair to do so. ¶9 We do note that there complication in this matter. is a potential procedural The Minnesota rule under which the supreme court of that state acted (MRLPR 28(c)) is predicated on the existence contemplates of that a pending the disciplinary indefinite suspension proceeding and will the stay disciplinary proceeding until the lawyer is determined to be fit to resume the practice of law. ¶10 This Minnesota rule is similar to SCR 22.16(4), which may apply when a respondent lawyer in a disciplinary proceeding "claims to have a medical incapacity that makes the defense of the proceeding impossible." In that event, the referee presiding over the disciplinary proceeding holds a hearing on the medical concerning prevents incapacity whether the the lawyer issue and lawyer from has being makes a able allegations of professional misconduct. findings medical to of incapacity defend against fact that the If the referee makes a finding of such a medical incapacity and this court approves that finding, we "shall abate the misconduct proceeding and suspend the respondent's license to practice law for medical incapacity until the court orders attorney's license under SCR 22.36." ¶11 pending reinstatement of the SCR 22.16(4)(d). The complication in this matter is that there is no disciplinary proceeding 6 in this state to which SCR No. 22.16(4)(d) could apply by its express terms. disciplinary proceeding is in Minnesota 2022AP304-D The only pending and is based upon allegations of misconduct that occurred in that state. ¶12 question Another common procedure in this state for resolving a of a lawyer's medical incapacity designed specifically for that purpose. is a proceeding See SCRs 22.34-22.341. Under that procedure, the OLR files a complaint in a new standalone action alleging that a lawyer has a medical incapacity, which is defined in SCR 22.001(8) as "a physical, mental, emotional, social or behavioral condition that is recognized by experts in medicine or psychology as a principal factor which substantially prevents a person from performing the duties of an attorney to acceptable professional standards." file an answer to such a complaint, and The lawyer may there is a full litigation process in front of one of this court's referees. Ultimately, whether or not an appeal is taken from the referee's report and recommendation in such a proceeding, this court makes the final determination as to whether the attorney's license should be indefinitely suspended due to medical incapacity. 22.341. SCR A suspension imposed in such a stand-alone proceeding remains in effect until the respondent attorney petitions for reinstatement under SCR 22.36 and this court grants that petition. ¶13 Thus, whether the medical capacity suspension occurs in a pending disciplinary proceeding under SCR 22.16(4) or in a separate medical incapacity proceeding under SCRs 22.34-22.341, the suspension continues indefinitely 7 until a petition for No. reinstatement is granted under SCR 22.36. 2022AP304-D The length of the indefinite suspension and the procedure for reinstatement are the same in both situations. ¶14 Consequently, proceeding in proceeding under although Minnesota SCRs there comparable to 22.34-22.341 was a and no medical although separate incapacity there is no pending disciplinary proceeding in this state comparable to the disciplinary proceeding pending in Minnesota to which we could apply SCR Attorney 22.16(4)(d), we Eichhorn-Hicks's are satisfied stipulation to that, the in light transfer of of his Minnesota license to inactive disability status, it is proper to suspend Attorney Eichhorn-Hicks's Wisconsin license indefinitely due to his medical incapacity. remain in effect until such The indefinite suspension shall time as Attorney Eichhorn-Hicks files a petition for reinstatement under SCR 22.36 and that petition is granted by order of this court. This is the closest that we can come to imposing the "identical" license suspension as the Supreme Attorney Court of Minnesota Eichhorn-Hicks's adopted Minnesota by license transferring to inactive disability status. ¶15 Hicks to IT IS ORDERED that the license of Tracy R. Eichhornpractice law in Wisconsin is suspended for an indefinite period, commencing the date of this order and until further order of the court. Hicks seeks to terminate If at some point Attorney Eichhornthis suspension, he shall file a petition for reinstatement under SCR 22.36 and shall proceed under that rule. 8 No. ¶16 IT IS FURTHER ORDERED that Tracy R. 2022AP304-D Eichhorn-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. ¶17 IT IS FURTHER ORDERED that the existing 120-day disciplinary suspension imposed on Attorney Tracy R. EichhornHicks, see In re Disciplinary Proceedings Against Eichhorn- Hicks, 2019 WI 91, 388 Wis. 2d 478, 933 N.W.2d 106, will remain in effect until Attorney Eichhorn-Hicks is reinstated from that suspension pursuant to the requirements of SCR 22.28(2). ¶18 IT IS FURTHER ORDERED that the administrative suspensions of Tracy R. Eichhorn-Hicks's license to practice law in Wisconsin, due to his failure to pay mandatory bar dues, his failure to complete his trust account certification, and his failure to comply with mandatory CLE reporting requirements, will remain in effect until each reason for the administrative suspension has been rectified pursuant to SCR 22.28(1). 9 No. 1 2022AP304-D
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