Office of Lawyer Regulation v. Michael J. Hicks , 368 Wis. 2d 108 ( 2016 )

2016 WI 31SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2818-D
COMPLETE TITLE: 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: April 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 31NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2818-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Michael J. Hicks, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
APR 29, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Michael J. Hicks,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of the referee,
Attorney James J. Winiarski. Based on the change of Attorney
Michael J. Hicks' answer to a no contest plea pursuant to SCR
22.14(2), the referee concluded that Attorney Hicks had
committed each of the 19 counts of professional misconduct
alleged in the complaint filed by the Office of Lawyer
Regulation (OLR). Referee Winiarski recommends that the court
No. 2014AP2818-D
suspend the license of Attorney Michael J. Hicks for a period of
one year consecutive to the two-year suspension imposed in Case
No. 2014AP7-D, In re Disciplinary Proceedings Against Hicks,
2016 WI 9, 366 Wis. 2d 512, 875 N.W.2d 117 (Hicks II), and that
the court order Attorney Hicks to pay the full costs of this
disciplinary proceeding, which were $2,717.14 as of October 14,
2015.
¶2 Because no appeal from the referee's report has been
filed, we proceed with our review of this matter pursuant to SCR
22.17(2).1 After completing our review, we agree with the
referee that the allegations of the OLR's complaint, which
Attorney Hicks now does not contest, establish that he committed
19 counts of professional misconduct. While many of the acts
that form the basis for this complaint also occurred during the
time span at issue in Hicks II, we further agree that Attorney
Hicks' license should be suspended for an additional period of
one year, subsequent to the suspension imposed in Hicks II. We
do not impose any restitution obligation on Attorney Hicks, but
we do require him to pay the full costs of this disciplinary
proceeding.
1
SCR 22.17(2) states:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
2
No. 2014AP2818-D
¶3 Attorney Hicks was admitted to the practice of law in
this state in June 1984. He most recently practiced in West
Allis.
¶4 Attorney Hicks has been the subject of professional
discipline on two previous occasions. In 2012 this court
publicly reprimanded him based on his stipulation that he had
committed nine counts of professional misconduct arising out of
three client representations. In re Disciplinary Proceedings
Against Hicks, 2012 WI 11, 338 Wis. 2d 558, 809 N.W.2d 33 (Hicks
I). For each representation, Attorney Hicks stipulated that he
had failed to act with reasonable diligence or promptness, in
violation of Supreme Court Rule (SCR) 20:1.3, that he had failed
to communicate adequately with the client, in violation of SCR
20:1.4(a)(2), (3) and (4) and SCR 20:1.4(b), and that he had
failed to provide a timely response to the grievance filed with
the OLR, in violation of SCR 22.03(2) and (6), which are
enforced via SCR 20:8.4(h).
¶5 In February 2016 this court suspended Attorney Hicks'
license to practice law in Wisconsin for a period of two years,
effective March 18, 2016. Hicks II, 366 Wis. 2d 512, ¶62. In
that proceeding, Attorney Hicks was again found to have
committed four counts of failing to act with reasonable
diligence or promptness, five counts of failing to communicate
adequately with his clients, and 12 counts of failing to submit
timely written responses to OLR grievance investigations. In
addition, he was found to have failed on multiple occasions to
notify his clients, opposing counsel, or the relevant courts of
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No. 2014AP2818-D
the two temporary suspensions of his license. Indeed, Attorney
Hicks was found to have appeared in court on at least 12
occasions despite the temporary suspensions of his license. He
also was found to have submitted false affidavits to the OLR
regarding his compliance with rules regarding his temporary
suspensions. The general time frame for the actions underlying
these violations was from mid-2011 through 2013.
¶6 The OLR commenced this disciplinary proceeding by
filing a complaint alleging 19 counts of professional
misconduct. Attorney Hicks initially filed an answer in which
he denied 53 out of 72 numbered paragraphs of the OLR's
complaint and all of the allegations of professional misconduct.
He alleged as affirmative defenses that he had experienced
symptoms from significant health problems in 2012 and 2013 and
that he had also experienced a heavy caseload from late 2011
through early 2013, including a substantial number of cases
where he was successor counsel to one or more prior attorneys
and had difficulties establishing and continuing attorney/client
relationships and in defending the clients against pending
criminal charges.
¶7 Attorney Hicks subsequently withdrew his answer and
filed a written plea of no contest to all of the counts alleged
in the OLR's complaint. He agreed that the referee could use
the facts stated in the complaint as a basis to determine
violations of the Rules of Professional Conduct for Attorneys.
¶8 In Hicks II we described the general pattern of
Attorney Hicks' misconduct. Hicks II, 366 Wis. 2d 512, ¶12.
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No. 2014AP2818-D
Attorney Hicks focused his practice primarily on representing
indigent defendants in criminal cases through appointments
either by the Office of the State Public Defender (SPD) or the
court in which the case was pending. After acknowledging the
appointment, Attorney Hicks often ignored his clients' requests
for information for substantial periods of time and often failed
to follow through on necessary actions for the clients' defense.
When a grievance was subsequently filed with the OLR, Attorney
Hicks either failed to provide any initial response to the OLR
or he failed to respond to the OLR's requests for further
information.
¶9 At two separate points in time this court temporarily
suspended Attorney Hicks' license due to his willful failure to
cooperate with the OLR's grievance investigations. See Hicks
II, 366 Wis. 2d 512, ¶¶13-14. The first such suspension ran
from September 27, 2012, through October 16, 2012. The second
temporary suspension ran from February 12, 2013, through March
11, 2013. In each case, after the temporary suspension had been
imposed, Attorney Hicks began to cooperate with the OLR and to
provide the information and documents the OLR had requested.
The OLR then informed the court of Attorney Hicks' cooperation
and requested the reinstatement of Attorney Hicks' license to
practice law in Wisconsin, which this court granted.
¶10 The first seven counts in this proceeding relate to
Attorney Hicks' representation of client R.A. in two criminal
cases. During these representations, Attorney Hicks' license
was temporarily suspended twice, as discussed above. Attorney
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No. 2014AP2818-D
Hicks failed to notify R.A., the court, or opposing counsel of
either of the temporary suspensions.
¶11 In one of the cases, Attorney Hicks filed a motion on
R.A.'s behalf in September 2012 to withdraw his pleas. The
court held an evidentiary hearing on the motion on December 19,
2012. At the conclusion of that hearing, in response to a
question from the court, Attorney Hicks responded that he wanted
to submit argument on the motion in writing. The court then
established a briefing schedule. Attorney Hicks, however, did
not file a post-hearing brief on R.A.'s behalf, nor did he
inform the court that he would not be doing so. Thus, Attorney
Hicks did not make any argument on the motion, either orally or
in writing, after the evidentiary hearing. When no brief was
filed on R.A.'s behalf, the state eventually filed its own
written argument.
¶12 In a series of letters R.A. sent to Attorney Hicks in
December 2012 and January 2013, R.A. asked Attorney Hicks about
matters concerning the expected post-hearing brief. He also
expressed concern that Attorney Hicks had not been in contact
with him since the December 19, 2012 evidentiary hearing and
that he had failed to respond to either R.A.'s letters or his
parents' efforts to prod Attorney Hicks to communicate with R.A.
Attorney Hicks did not respond to R.A.'s letters except to
provide certain documents to R.A. without any substantive
comment. Attorney Hicks did not disclose to R.A. that he had
decided not to file a post-hearing brief on the motion.
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No. 2014AP2818-D
¶13 The circuit court had scheduled a conference for
February 8, 2013, at which it expected to issue its ruling on
R.A.'s motion. According to electronic docket records, Attorney
Hicks did appear on that date, but he did not arrange for R.A.
to appear. The court noted that Attorney Hicks had not filed a
brief or advised the court that he would not be doing so. The
court adjourned the matter until February 26, 2013, and ordered
that R.A. be produced in court on that date. It also ordered
Attorney Hicks to advise R.A. of the reason why the court had
not issued its decision on his motion on that date. Attorney
Hicks did send a letter to R.A. advising him of the new date for
the court's decision, but did not inform him that Attorney Hicks
had decided not to file a post-hearing brief on R.A.'s behalf.
¶14 On February 26, 2013, although he was subject to the
second temporary suspension of his license, Attorney Hicks
appeared in court for what was scheduled to be the issuance of
the court's oral ruling on R.A.'s motion to withdraw his pleas.
Because of a communication error, R.A. was not produced for that
court date. The matter was therefore continued until April 5,
2013.
¶15 R.A. again sent a letter to Attorney Hicks expressing
concern at Attorney Hicks' failure to respond to his letters or
to the efforts of his family members to spur communication.
Attorney Hicks did not respond and still did not advise R.A.
that he had decided not to file any post-hearing brief in
support of R.A.'s motion.
7
No. 2014AP2818-D
¶16 Prior to the April 5, 2013 appearance, R.A. wrote to
the circuit court and asked for the appointment of new counsel.
The court allowed Attorney Hicks to withdraw on that date so
that the SPD could appoint new counsel for R.A. The court ruled
that successor counsel would be allowed to file a written
argument in support of R.A.'s motion to withdraw his pleas.
¶17 In March 2013 R.A. filed a grievance against Attorney
Hicks with the OLR. In April 2013 and again in December 2013,
the OLR asked Attorney Hicks for a response to R.A.'s grievance,
but Attorney Hicks did not respond. Only after the OLR had
filed yet another motion for a temporary suspension and this
court had issued an order to show cause did Attorney Hicks
finally submit a written response to R.A.'s grievance and
provide requested documents to the OLR.
¶18 The referee concluded that the allegations in the
OLR's complaint concerning R.A. adequately supported the
following seven counts of professional misconduct:
[Count One] By requesting to argue [R.A.'s] motion to
withdraw his plea in writing following the evidentiary
phase of the hearing on the motion, and then failing
to file any written (or oral) argument, [Attorney]
Hicks violated SCR 20:1.3.2
2
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
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No. 2014AP2818-D
[Count Two] By failing to respond to [R.A.'s]
repeated requests for information, [Attorney] Hicks
violated SCR 20:1.4(a)(4).3
[Count Three] By failing to provide [R.A.] with a
copy of the State's written argument brief and to
promptly advise [R.A.] of [Attorney] Hicks' decision
not to file a post-hearing argument brief, [Attorney]
Hicks violated SCR 20:1.4(a)(2) and (3).4
[Count Four] By failing to provide written notice to
[R.A.] of his . . . September 27, 2012 and February
12, 2013 suspensions, [Attorney Hicks] violated SCR
22.26(1)(a) and (b).5
[Count Five] By failing to provide written notice of
his September 27, 2012 suspension to the court and
opposing counsel in [R.A.'s two pending cases] and by
failing to provide written notice of his February 23,
2013 suspension to the court and opposing counsel in
3
SCR 20:1.4(a)(4) provides in part: "A lawyer shall . . .
promptly comply with reasonable requests by the client for
information . . . ."
4
SCR 20:1.4(a)(2) and (3) provide: "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 . . . .
5
Violations of SCR 22.26(1) for failing to provide written
notices of suspensions to clients, courts, and opposing counsel
are enforced via SCR 20:8.4(f), which provides that it is
professional misconduct for a lawyer to "violate a statute,
supreme court rule, supreme court order or supreme court
decision regulating the conduct of lawyers."
9
No. 2014AP2818-D
[one of R.A.'s pending cases], [Attorney] Hicks
violated SCR 22.26(1)(c).6
[Count Six] By practicing law in Wisconsin at a time
when his license to practice law was suspended,
including by appearing on behalf of [R.A.] in [one of
R.A.'s cases], [Attorney Hicks] violated SCR 22.26(2).7
[Count Seven] By failing to timely file a response to
[R.A.'s] grievance, [Attorney] Hicks violated SCR
22.03(2) and (6),8 enforced via SCR 20:8.4(h).9
6
SCR 22.26(1)(c) provides: "On or before the effective
date of license suspension or revocation, an attorney whose
license is suspended or revoked shall do all of the
following: . . . (c) Promptly provide written notification to
the court or administrative agency and the attorney for each
party in a matter pending before a court or administrative
agency of the suspension or revocation and of the attorney's
consequent inability to act as an attorney following the
effective date of the suspension or revocation. The notice
shall identify the successor attorney of the attorney's client
or, if there is none at the time notice is given, shall state
the client's place of residence."
7
SCR 22.26(2) provides: "An attorney whose license to
practice law is suspended or revoked or who is suspended from
the practice of law may not engage in this state in the practice
of law or in any law work activity customarily done by law
students, law clerks, or other paralegal personnel, except that
the attorney may engage in law related work in this state for a
commercial employer itself not engaged in the practice of law.
Practicing law in violation of a suspension order by this
court and this court's rules would also appear to constitute a
violation of SCR 20:8.4(f).
8
SCR 22.03(2) and (6) provide:
(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
(continued)
10
No. 2014AP2818-D
¶19 Counts eight through twelve arise out of Attorney
Hicks' representation of L.S. during the early stages of his
criminal case in the first half of 2013. Less than a month
after his appointment to represent L.S., Attorney Hicks' license
was temporarily suspended for the second time. He failed to
notify L.S., the court, or opposing counsel of the suspension.
While his license was suspended, he appeared at a scheduling
conference on behalf of L.S.
¶20 Attorney Hicks was removed as counsel for L.S. on May
31, 2013. During the roughly four months of the representation,
Attorney Hicks had not communicated with L.S. regarding trial
strategy or what Attorney Hicks was doing to prepare for trial.
¶21 Once again, Attorney Hicks did not respond to the
OLR's multiple requests for information after L.S. filed a
allow additional time to respond. Following receipt
of the response, the director may conduct further
investigation and may compel the respondent to answer
questions, furnish documents, and present any
information deemed relevant to the investigation.
. . . .
(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.
9
SCR 20:8.4(h) provides: "It is professional misconduct
for a lawyer to: . . . (h) 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) . . . .
11
No. 2014AP2818-D
grievance against him. Only after the OLR filed another motion
for a temporary suspension and this court issued an order to
show cause did Attorney Hicks finally file a response to L.S.'s
grievance.
¶22 On the basis of these facts, the referee concluded
that Attorney Hicks had committed the following five counts of
misconduct:
[Count Eight] By failing to consult with [L.S.]
regarding trial strategy and preparation prior to his
February 12, 2013 suspension or between March 12, 2013
and May 31, 2013, [Attorney] Hicks violated SCR
20:1.4(a)(2).
[Count Nine] By appearing on behalf of [L.S.] in
[L.S.'s criminal case] at a time when his license to
practice law was suspended, [Attorney] Hicks violated
SCR 22.26(2).
[Count Ten] By failing to provide written notice of
his February 12, 2013 suspension to [L.S.], [Attorney]
Hicks violated SCR 22.26(1)(a) and (b).
[Count Eleven] By failing to provide written notice
of his February 12, 2013 suspension to the court and
opposing counsel in [L.S.'s criminal case], [Attorney]
Hicks violated SCR 22.26(1)(c).
[Count Twelve] By failing to timely file a response
to [L.S.'s] grievance, [Attorney] Hicks violated SCR
22.03(2) and (6), enforced via SCR 20:8.4(h).
¶23 Counts thirteen through seventeen relate to Attorney
Hicks' representation of T.C. In December 2012 Attorney Hicks
was appointed as successor counsel for T.C. In January 2013
T.C. sent a letter to Attorney Hicks, in which he asked Attorney
Hicks to send him a copy of discovery materials received from
the state and raised concerns about his case. T.C. sent two
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No. 2014AP2818-D
more such letters to Attorney Hicks over the next approximately
seven months. Attorney Hicks sent T.C. two letters about the
rescheduling of T.C.'s trial, but did not communicate with T.C.
about the matters raised in his letters, did not discuss his
preparation or strategy for trial, and did not provide a copy of
the requested discovery.
¶24 At a meeting with Attorney Hicks on August 18, 2013,
T.C. repeated his request for a copy of the discovery materials
and raised a number of questions about his case. Attorney Hicks
promised T.C. that they would meet again prior to the trial to
discuss T.C.'s defense. Over the following two months, however,
Attorney Hicks did not provide T.C. with the requested discovery
nor did he communicate with T.C. regarding his trial preparation
and strategy.
¶25 On October 21, 2013, pursuant to Attorney Hicks'
advice to accept a plea agreement he had negotiated with the
prosecutor, T.C. pled guilty to the pending charges. After
entering the plea, however, T.C. began pursuing the withdrawal
of his plea. On January 23, 2014, Attorney Hicks was allowed to
withdraw as T.C.'s counsel.
¶26 During the time that Attorney Hicks represented T.C.,
his license to practice law was suspended for the second time.
Attorney Hicks, however, did not notify T.C., the court, or
opposing counsel of the suspension.
¶27 As had occurred in the other matters, Attorney Hicks
initially did not provide all of the documents and information
requested by the OLR, although in this instance he did provide
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No. 2014AP2818-D
some documents. Ultimately, Attorney Hicks filed the response
sought by the OLR after the OLR had moved for another temporary
suspension and this court had issued an order to show cause.
¶28 On the basis of these facts, the referee concluded
that there was a sufficient basis to support five counts of
misconduct:
[Count Thirteen] By failing between the date on which
he received [T.C.'s] letter in January 2013 and
February 12, 2013, between March 11, 2013 and August
16, 2013, and between August 18, 2013 and October 20,
2013, to communicate with [T.C.] regarding the issues
raised in [T.C.'s] January 2013 letter and to
otherwise consult with [T.C.] regarding trial strategy
and preparation, thereby preventing [T.C.] from
adequately understanding and participating in his own
defense, [Attorney] Hicks violated SCR 20:1.4(a)(2).
[Count Fourteen] By failing to timely provide [T.C.]
with a complete copy of the discovery materials,
despite [T.C.'s] requests, [Attorney] Hicks violated
SCR 20:1.4(a)(4).
[Count Fifteen] By failing to provide a written
notice to [T.C.] of his February 12, 2013 suspension,
[Attorney] Hicks violated SCR 22.26(1)(a) and (b).
[Count Sixteen] By failing to provide written notice
to the court and opposing counsel in [T.C.'s pending
criminal case] that his license to practice law had
been suspended on February 12, 2013, [Attorney] Hicks
violated SCR 22.26(1)(c).
[Count Seventeen] By failing to timely file a
response to [T.C.'s] grievance, [Attorney] Hicks
violated SCR 22.03(2) and (6), enforced via SCR
20:8.4(h).
¶29 The last two counts alleged in the OLR's complaint
arise from Attorney Hicks' appointment to represent R.G. in a
criminal case. By the time of Attorney Hicks' appointment in
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No. 2014AP2818-D
August 2012, R.G. had been found guilty of three felonies in a
jury trial. During the time Attorney Hicks represented R.G.,
his license was temporarily suspended for the first time, but he
failed to provide the required notices.
¶30 The referee concluded that Attorney Hicks had engaged
in the following two counts of misconduct:
[Count Eighteen] By failing to provide written notice
of his September 27, 2012 suspension to [R.G.],
[Attorney] Hicks violated SCR 22.26(1)(a) and (b).
[Count Nineteen] By failing to provide written notice
of his September 27, 2012 suspension to the court and
opposing counsel in [R.G.'s pending criminal case],
[Attorney] Hicks violated SCR 22.26(1)(c).
¶31 After Attorney Hicks filed his plea of no contest to
the factual allegations and claims of professional misconduct
summarized above, the referee held a hearing at which the OLR
and Attorney Hicks were offered the opportunity to submit
evidence and argument regarding the appropriate sanction,
including evidence and argument regarding mitigating and
aggravating factors.
¶32 In his report, the referee noted that in Hicks II,
Attorney Hicks had offered little explanation for his
misconduct. He had essentially claimed that his caseload had
been the cause for not communicating with his clients and for
failing to provide timely responses to the OLR's investigations
of the grievances filed against him.
¶33 The referee further stated that in the present case,
Attorney Hicks had provided little additional argument to
explain his actions. He did, however, point to the affirmative
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No. 2014AP2818-D
defenses in his initial answer to the complaint, where he had
alleged that during 2012 and early 2013, he had been suffering
from significant health problems. Attorney Hicks asserted that
those medical conditions had prevented him from working as many
hours as he needed to represent his clients properly. The
referee found, however, that aside from his personal testimony
at the sanction hearing, Attorney Hicks had not offered any
evidence to support his claims that he had suffered severe
medical problems and that those conditions had been a cause of
his failures to serve his clients properly.
¶34 The referee rejected Attorney Hicks' claim that his
medical conditions had prevented him from meeting his ethical
obligations to his clients. The referee noted that there was no
testimony that Attorney Hicks had been forced to take a leave of
absence or had been unavailable in his practice for extended
periods of time. On the other hand, there were extended periods
of time during these representations when Attorney Hicks had
little or no contact with his clients. Further, Attorney Hicks
also again claimed in his plea of no contest that he had an
overwhelming caseload during the relevant time period. The
referee noted that Attorney Hicks had been able to handle many
other criminal cases in which there were court hearings. Given
that fact, the referee could not accept that Attorney Hicks'
medical conditions had actually caused the lapses in diligence
and communication for the four clients whose cases were the
subjects of this proceeding.
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No. 2014AP2818-D
¶35 The referee also pointed to the disturbing patterns he
had discussed in his report in Hicks II. 366 Wis. 2d 512, ¶¶53-
55. Those patterns include largely ignoring clients after being
appointed to represent them, failing to keep his clients
reasonably informed about their cases, and failing to appreciate
the need to respond to grievances filed against him.
¶36 The referee recognized that the misconduct at issue in
the present case occurred in roughly the same time period and
was of the same types as the misconduct at issue in Hicks II.
He therefore questioned whether the OLR in Hicks II would have
sought a suspension longer than two years if all of the
misconduct in this case had been included in that case.
Ultimately, he concluded that the additional 19 counts of
misconduct at issue here merited an additional one-year period
of suspension consecutive to the two-year suspension imposed in
Hicks II. He determined that if the OLR had "charged Attorney
Hicks with all of the counts in a single disciplinary complaint,
a three year suspension would have been reasonable and
appropriate." The referee also determined that the misconduct
found in this disciplinary proceeding, when considered by
itself, merited a one-year suspension. The referee indicated
that he believed a one-year suspension was justified by the
analyses set forth in two cases involving Attorney Patrick
Cooper. In re Disciplinary Proceedings Against Cooper, 2007 WI
37, 300 Wis. 2d 61, 729 N.W.2d 206 (imposing three-year
suspension due to 35 counts of misconduct); In re Disciplinary
Proceedings Against Cooper, 2013 WI 55, 348 Wis. 2d 266, 833
17
No. 2014AP2818-D
N.W.2d 88 (imposing two-year suspension, retroactive to and
consecutive to the expiration of the 2007 suspension as a result
of 42 counts of misconduct). The referee considered Attorney
Hicks' misconduct to be less egregious than Attorney Cooper's
misconduct, which would support a consecutive one-year
suspension in this case.
¶37 The OLR did not request, and the referee did not
recommend, that the court require Attorney Hicks to pay
restitution to anyone as a result of his misconduct in this
case. The referee did recommend that the court impose the full
costs of this proceeding on Attorney Hicks, noting that there
did not appear to be any reason to depart from the court's
general practice of imposing full costs on attorneys found to
have committed misconduct.
¶38 When we review a referee's report and recommendation
in an attorney disciplinary case, we affirm the referee's
findings of fact unless they are found to be clearly erroneous,
but we review the referee's conclusions of law on a de novo
basis. In re Disciplinary Proceedings Against Inglimo,
2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine
the appropriate level of discipline to impose given the
particular facts of each case, independent of the referee's
recommendation, but benefiting from it. In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45,
660 N.W.2d 686.
¶39 Given Attorney Hicks' no contest plea, we accept the
referee's factual findings as taken from the OLR's complaint.
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No. 2014AP2818-D
We also agree with the referee that those factual findings are
sufficient to support a legal conclusion that Attorney Hicks
engaged in the professional misconduct set forth in the 19
counts described above.
¶40 The primary issue in this matter is what is the
appropriate level of discipline for the misconduct found in this
case and whether that discipline should be imposed concurrent
with or consecutive to the two-year suspension imposed in Hicks
II.
¶41 We confronted a similar issue regarding the timing of
discipline in In re Disciplinary Proceedings Against Osicka,
2014 WI 34, 353 Wis. 2d 675, 847 N.W.2d 333 (Osicka V). The
issue of whether the 60-day suspension recommended in that case
should be concurrent with or consecutive to another 60-day
suspension arose because the misconduct at issue (three counts
stemming from one representation and subsequent investigation)
occurred during the same time period that other misconduct
occurred, which was the subject of a separate disciplinary
proceeding, In re Disciplinary Proceeding Against Osicka, 2014
WI 33, 353 Wis. 2d 656, 847 N.W.2d 343 (Osicka IV). In other
words, all of the misconduct alleged and found in Osicka V
occurred prior to the filing of the complaint in Osicka IV and
could have been included in that proceeding. Further, the
referee, who handled both disciplinary proceedings, concluded
that if the OLR had brought all of the claims of misconduct in a
single proceeding, the proper sanction for all of the misconduct
would still have been a suspension of 60 days. This court
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No. 2014AP2818-D
agreed with that conclusion. Accordingly, the court imposed a
60-day suspension in Osicka V, but made it run concurrently with
the 60-day suspension imposed in Osicka IV.
¶42 The present case is different from Osicka V in at
least two crucial ways. Most importantly, the timing of the
misconduct and of the filing of the two complaints is different.
The complaint in Hicks II was filed on January 2, 2014, and the
complaint in the present case was filed approximately 11 months
later in December 2014. While much of the misconduct found in
this case occurred in 2012 and 2013, before the filing of the
complaint in Hicks II, some of the misconduct at issue here
continued into March 2014, after the filing of the Hicks II
complaint. Specifically, with respect to the investigation of
the grievances involving R.A., L.S., and T.C., the OLR was still
attempting to obtain information from Attorney Hicks in January
and February 2014.10 Indeed, letters requesting responses
regarding those grievances were served on Attorney Hicks on
January 24, 2014. When Attorney Hicks still did not respond,
the OLR moved this court for a temporary suspension of Attorney
Hicks' license on February 24, 2012. This court then issued an
order to show cause. Attorney Hicks' failure to cooperate with
10
The only counts relating to Attorney Hicks'
representation of R.G. involved Attorney Hicks' failure to
provide notice of his September 27, 2012 temporary suspension.
Thus, it is true that those counts were complete well before the
January 2, 2014 filing of the complaint in Hicks II and could
have been included in that complaint.
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No. 2014AP2818-D
each of those three investigations, which was continuing
misconduct, did not end until the latter part of March 2014,
nearly three months after the OLR filed its complaint in Hicks
II. Thus, while it would have been possible for the OLR to have
waited a few more months so that it could have included all of
the counts of misconduct in one proceeding, it did not know in
January 2014 when or if Attorney Hicks would provide responses
to those grievances and whether any such responses might impact
which claims of misconduct it would then pursue in a formal
complaint. Unlike the proceedings involving Attorney Osicka,
this is not a situation where all of the misconduct was over
prior to the filing of the first complaint.
¶43 In addition, the nature and extent of the misconduct
in this case is different from the misconduct found in Osicka V.
In Osicka V, the OLR alleged, and the referee found, that
Attorney Osicka had engaged in three counts of misconduct
arising out of a single misrepresentation. Those three counts
were similar in nature and degree to the four counts of
misconduct alleged in Osicka IV. By contrast, in the present
case there are an additional 14 counts of misconduct relating to
the representations of four additional clients. We conclude
that the addition of these facts and counts of misconduct would
have changed the nature of Hicks II and would have called for a
suspension greater than two years.
¶44 In Hicks II, we cited In re Disciplinary Proceedings
Against Lucius, 2008 WI 12, 307 Wis. 2d 255, 744 N.W.2d 605, as
support for the two-year suspension we imposed on Attorney
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No. 2014AP2818-D
Hicks. While the nature of some of the misconduct was similar
(lack of diligence and failure to communicate), Lucius involved
10 counts of misconduct arising out of six client
representations. Hicks II involved findings of misconduct on 35
counts arising out of 12 client representations. This
demonstrates that each disciplinary proceeding must be
considered on its own facts and that there are no perfect
matches in terms of discipline between disciplinary proceedings.
¶45 Adding another 14 counts of misconduct and another
four clients, however, takes reliance on Lucius for a two-year
suspension beyond the breaking point. We conclude that if all
49 counts of misconduct would have been alleged in a single
case, the level of discipline would have been greater than the
two-year suspension we imposed in Hicks II.
¶46 Given that the nature of the misconduct in this
proceeding is similar, but that the number of clients involved
is less than in either Hicks II or Lucius, we conclude that an
additional one-year suspension is an appropriate level of
discipline to impose in this case. We make that one-year
suspension consecutive to the two-year suspension imposed in
Hicks II.
¶47 As was the case in Hicks II, we do not impose any
restitution obligation on Attorney Hicks. The OLR has not
sought restitution with respect to any of Attorney Hicks'
clients. See SCR 21.16(1m)(em) and (2m)(a)1 (the court may
impose restitution in instances of misappropriation or
misapplication of funds).
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No. 2014AP2818-D
¶48 Finally, we turn to the issue of costs. The OLR
requested $2,717.14 in costs, and the referee recommended that
the court follow its usual practice in requiring Attorney Hicks
to pay the full amount of costs. We agree that Attorney Hicks
should bear the full costs of this disciplinary proceeding.
While he did ultimately enter a plea of no contest with respect
to the 19 counts of misconduct, his initial answer denied most
of the substantive allegations in the OLR's complaint, requiring
the litigation of this matter for at least a period of time. In
addition, even once he entered a no contest plea, there still
remained the matter of the proper level of discipline, which
required a short hearing before the referee and the preparation
of a referee's report. Finally, Attorney Hicks has not objected
to the amount of costs requested by the OLR.
¶49 IT IS ORDERED that the license of Michael J. Hicks to
practice law in Wisconsin is suspended for a period of one year,
effective March 18, 2018, consecutive to the two-year suspension
imposed in Hicks II, 366 Wis. 2d 512, ¶62.
¶50 IT IS FURTHER ORDERED that Michael J. 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.
¶51 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Michael J. Hicks shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
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No. 2014AP2818-D
¶52 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
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No. 2014AP2818-D
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