Office of Lawyer Regulation v. Tracy R. Eichhorn-Hicks ( 2023 )

2023 WI 23SUPREME 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: March 28, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam.
NOT PARTICIPATING:
ATTORNEYS:
2023 WI 23NOTICE
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:
Office of Lawyer Regulation,
FILED
Complainant, MAR 28, 2023
v. Sheila T. Reiff
Clerk of Supreme Court
Tracy R. Eichhorn-Hicks,
Respondent.
ATTORNEY disciplinary proceeding. Attorney’s license
suspended indefinitely.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
has filed a complaint under Supreme Court Rule (SCR) 22.22
asking this court to suspend indefinitely the 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Eichhorn-Hicks, No. A20-1123, unpublished order (Minn.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. 2022AP304-D
December 15, 2020). Having reviewed the OLR's complaint and the
relevant documents from the Minnesota proceeding, we conclude
that a reciprocal indefinite suspension due to medical
incapacity should be imposed on Attorney 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 Attorney Eichhorn-Hicks has been the subject of three
instances of public discipline in this state, all of which
occurred as discipline reciprocal to that imposed by the Supreme
Court of Minnesota. In 2012, this court addressed two separate
Minnesota 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
1
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).
2
No. 2022AP304-D
Hicks's stipulation, this court suspended 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 subject to a number of administrative
suspensions. In October 2018, Attorney Eichhorn-Hicks's
Wisconsin license was administratively 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 This proceeding began with the filing of a complaint
and order to answer. Attorney Eichhorn-Hicks subsequently
submitted an admission of service, but he did not file an answer
2The underlying Minnesota disciplinary proceeding was In re
Disciplinary Action Against Eichhorn-Hicks, 916 N.W.2d 32 (Minn.
2018).
3
No. 2022AP304-D
to the complaint. 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.) The MOLPR's complaint alleged that Attorney
Eichhorn-Hicks had violated a substantial number of the
Minnesota Rules of Professional Conduct in three separate client
representations. The complaint asked that the Supreme Court of
Minnesota suspend or disbar Attorney Eichhorn-Hicks from the
practice of law in that state. Attorney Eichhorn-Hicks filed a
handwritten answer to the 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 not currently competent to
4
No. 2022AP304-D
represent clients. 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." Attorney
Eichhorn-Hicks stipulated to the Director's 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 incapacity unless one of two exceptions is
satisfied: either (1) the procedure in the other jurisdiction
was so 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 as final the determination of the other
jurisdiction.3 As noted above, Attorney Eichhorn-Hicks has not
alleged that 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 Eichhorn-
3There 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).
5
No. 2022AP304-D
Hicks ultimately stipulated to the transfer to disability
inactive status in Minnesota. 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 is a potential procedural
complication in this matter. The Minnesota rule under which the
supreme court of that state acted (MRLPR 28(c)) is predicated on
the existence of a pending disciplinary proceeding and
contemplates that the indefinite suspension will stay the
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 incapacity issue and makes findings of fact
concerning whether the lawyer has a medical incapacity that
prevents the lawyer from being able to defend against the
allegations of professional misconduct. 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 reinstatement of the
attorney's license under SCR 22.36." SCR 22.16(4)(d).
¶11 The complication in this matter is that there is no
pending disciplinary proceeding in this state to which SCR
6
No. 2022AP304-D
22.16(4)(d) could apply by its express terms. The only pending
disciplinary proceeding is in Minnesota and is based upon
allegations of misconduct that occurred in that state.
¶12 Another common procedure in this state for resolving a
question of a lawyer's medical incapacity is a proceeding
designed specifically for that purpose. See SCRs 22.34-22.341.
Under that procedure, the OLR files a complaint in a new stand-
alone 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." The lawyer may
file an answer to such a complaint, and 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. SCR
22.341. 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 until a petition for
7
No. 2022AP304-D
reinstatement is granted under SCR 22.36. The length of the
indefinite suspension and the procedure for reinstatement are
the same in both situations.
¶14 Consequently, although there was no separate
proceeding in Minnesota comparable to a medical incapacity
proceeding under SCRs 22.34-22.341 and although there is no
pending disciplinary proceeding in this state comparable to the
disciplinary proceeding pending in Minnesota to which we could
apply SCR 22.16(4)(d), we are satisfied that, in light of
Attorney Eichhorn-Hicks's stipulation to the transfer 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. The indefinite suspension shall
remain in effect until such 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 Court of Minnesota adopted by transferring
Attorney Eichhorn-Hicks's Minnesota license to inactive
disability status.
¶15 IT IS ORDERED that the license of Tracy R. Eichhorn-
Hicks to practice law in Wisconsin is suspended for an
indefinite period, commencing the date of this order and until
further order of the court. If at some point Attorney Eichhorn-
Hicks seeks to terminate this suspension, he shall file a
petition for reinstatement under SCR 22.36 and shall proceed
under that rule.
8
No. 2022AP304-D
¶16 IT IS FURTHER ORDERED that Tracy R. 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. Eichhorn-
Hicks, 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. 2022AP304-D
1