Office of Lawyer Regulation v. Eichhorn-Hicks (In re Disciplinary Proceedings Against Tracy R. Eichhorn-Hicks)

Citation406 Wis.2d 364,2023 WI 23,986 N.W.2d 835
Docket Number2022AP304-D
Decision Date28 March 2023
Parties 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.
CourtWisconsin Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license suspended indefinitely.

PER CURIAM.

¶1 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, 951 N.W.2d 742 (Minn. S. Ct. 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-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 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, 951 N.W.2d 742 (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 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-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...

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