                                                              2014 WI 26

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2011AP2326-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:          May 23, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                                      2014 WI 26
                                                                             NOTICE
                                                              This opinion is subject to further
                                                              editing and modification.   The final
                                                              version will appear in the bound
                                                              volume of the official reports.
No.     2011AP2326-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,                                                    MAY 23, 2014
      v.                                                                        Diane M. Fremgen
                                                                             Clerk of Supreme Court
Tracy R. Eichhorn-Hicks,

             Respondent.




      ATTORNEY reinstatement proceeding.                       Reinstatement granted.


      ¶1     PER    CURIAM.     We        review      a       report    filed      by    referee

James   G.    Curtis    recommending             that      the       court     reinstate       the

license of Tracy R. Eichhorn-Hicks to practice law in Wisconsin.

After   careful     review     of    the        matter,        we    agree     that     Attorney

Eichhorn-Hicks'       license       should       be     reinstated.             Although       the

referee      recommends       that        the     costs         of     the      reinstatement

proceeding     be    reduced,        we    find       it       appropriate         to    require

Attorney Eichhorn-Hicks to pay the full costs of the proceeding,
which are $3,159.37 as of November 22, 2013.
                                                                          No.     2011AP2326-D



       ¶2    Attorney Eichhorn-Hicks was licensed to practice law

in Minnesota in 1975, and became licensed to practice law in

Wisconsin in 1984.         He practices primarily in Minnesota.

       ¶3    On August 21, 2000, the Supreme Court of Minnesota

suspended Attorney Eichhorn-Hicks' license for a period of one

year due to professional misconduct, including misuse of his

trust account, failure to maintain proper trust account records,

temporary       misappropriation          of         funds,         making        a     false

certification      on      his    attorney        registration           statements,       and

making false statements to the director of the Minnesota Office

of    Lawyers   Professional        Responsibility.                In    re     Disciplinary

Action      Against     Eichhorn-Hicks,           615 N.W.2d 356          (Minn.        2000).

Attorney Eichhorn-Hicks did not report the suspension to the

Office of Lawyer Regulation (OLR), as he was required to do.

See SCR 22.22(1).           The OLR learned of the suspension through

other    sources      in   June    of   2011.        During        the    period      of   the

Minnesota suspension, Attorney Eichhorn-Hicks did not practice

law in either Minnesota or Wisconsin.
       ¶4    Effective      February      8,       2002,     the    Supreme        Court    of

Minnesota       reinstated        Attorney         Eichhorn-Hicks'              license     to

practice law in Minnesota, subject to the condition that he be

placed on supervised probation for three years.                               The terms of

his    probation      included     supervision         by    a     licensed        Minnesota

attorney; maintenance and review by the supervising attorney of

certain     client,     file,     and   fee       records;    maintenance          of   trust

account records and compliance with any requests to review those
records by the director of the Office of Lawyers Professional
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Responsibility;             and    abstinence          from    alcohol         and     other     mood-

altering chemicals.

      ¶5        On     June    23,       2009,     the    Supreme        Court       of    Minnesota

publicly        reprimanded            Attorney    Eichhorn-Hicks              for     professional

misconduct involving his receipt on two occasions of advanced

fee payments in a client matter in which there was no written

fee agreement, his failure to deposit such funds into a client

trust account, and his failure to disclose during a disciplinary

investigation the full amounts of payments he had received for

the   representation              of    a    client.          In   re    Disciplinary            Action

Against      Eichhorn-Hicks,                767 N.W.2d 20          (Minn.      2009).            Again,

Attorney Eichhorn-Hicks failed to timely inform the OLR of this

public reprimand.

      ¶6        In addition to the 2009 public reprimand, the Supreme

Court      of    Minnesota         also       placed      Attorney        Eichhorn-Hicks               on

probation for two years with a number of conditions.                                      Under the

terms   of       the    Minnesota           order,     the     period       of    probation           was

scheduled        to     expire         in   June     of   2011.           As     with      the    2000
suspension, the OLR learned of the 2009 public reprimand in June

of 2011 through other sources.

      ¶7        In October of 2011, the OLR filed a complaint against

Attorney        Eichhorn-Hicks              alleging      that,     by     virtue         of     having

received        public      discipline         imposed        by    the     Supreme        Court       of

Minnesota, he was subject to reciprocal discipline in Wisconsin

pursuant        to    SCR     22.22.         The   complaint        also       alleged         that    by

failing to notify the OLR of either the 2000 suspension or the


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                                                                      No.    2011AP2326-D



2009     public      reprimand,         Attorney     Eichhorn-Hicks            violated

SCR 22.22(1).

       ¶8    On March 1, 2012, this court ordered that Attorney

Eichhorn-Hicks       be    publicly        reprimanded     for       the     misconduct

leading to the 2009 public reprimand in Minnesota.                                It also

ordered     that    his   license     to    practice     law     in     Wisconsin      be

suspended effective April 2, 2012, for a period of one year, as

reciprocal discipline to that issued by the Supreme Court of

Minnesota.         Attorney     Eichhorn-Hicks       was   further          ordered    to

comply with the provisions of SCR 22.26.                       In re Disciplinary

Proceedings Against Eichhorn-Hicks, 2012 WI 18, 338 Wis. 2d 753,

809 N.W.2d 379.

       ¶9    On    May    13,   2013,     Attorney     Eichhorn-Hicks          filed    a

petition for the reinstatement of his license to practice law in

Wisconsin.        The OLR filed a response on September 20, 2013.                      In

its response, the OLR suggested that the referee might wish to

explore Attorney Eichhorn-Hicks' understanding of his obligation

to strictly and fully comply with supreme court rules and may
also wish to explore the accuracy of declarations contained in

his    reinstatement      petition.        Specifically,       the     OLR    expressed

concern     that    Attorney    Eichhorn-Hicks       may   have        practiced       law

after the effective date of the suspension of his Wisconsin law

license.      Attorney Eichhorn-Hicks' possible practice after the

suspension of his license involved his representation of C.K.,

an    Illinois     resident,    on    a    Wisconsin     OWI    charge       in    Barron

County.


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                                                     No.    2011AP2326-D



     ¶10    A public hearing on Attorney Eichhorn-Hicks' petition

for reinstatement was held on October 15, 2013.            The referee

filed his report and recommendation in the matter on November 4,

2013.

     ¶11    Supreme Court Rule 22.31(1)1 provides the standards to

be met for reinstatement.        Specifically, the petitioner must

show by clear, satisfactory, and convincing evidence that he or

she has the moral character to practice law, that his or her

resumption of the practice of law will not be detrimental to the

administration of justice or subversive of the public interest,

and that he or she has complied with SCR 22.26 and the terms of

the order of suspension.        In addition to these requirements,

SCR 22.29(4)(a)-(4m)2   provides   additional   requirements   that   a
     1
         SCR 22.31(1) states:

          The petitioner has the burden of demonstrating,
     by clear, satisfactory, and convincing evidence, all
     of the following:

          (a) That he or she has the moral character to
     practice law in Wisconsin.

          (b) That his or her resumption of the practice of
     law will not be detrimental to the administration of
     justice or subversive of the public interest.

          (c) That his or her representations in the
     petition, including the representations required by
     SCR   22.29(4)(a)  to  [(4m)]   and   22.29(5), are
     substantiated.

          (d) That he or she has complied fully with the
     terms of the order of suspension or revocation and
     with the requirements of SCR 22.26.
     2
       SCR 22.29(4)(a) through (4m) provides that a petition for
reinstatement shall show all of the following:

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                                            No.    2011AP2326-D




     (a) The   petitioner    desires   to   have     the
petitioner's license reinstated.

     (b) The petitioner has not practiced law during
the period of suspension or revocation.

     (c) The petitioner has complied fully with the
terms of the order of suspension or revocation and
will   continue  to   comply   with them  until the
petitioner's license is reinstated.

     (d) The petitioner has maintained competence and
learning in the law by attendance at identified
educational activities.

     (e) The petitioner's conduct since the suspension
or revocation has been exemplary and above reproach.

     (f) The petitioner has a proper understanding of
and attitude toward the standards that are imposed
upon members of the bar and will act in conformity
with the standards.

     (g) The petitioner can safely be recommended to
the legal profession, the courts and the public as a
person fit to be consulted by others and to represent
them and otherwise act in matters of trust and
confidence and in general to aid in the administration
of justice as a member of the bar and as an officer of
the courts.

     (h) The petitioner has fully complied with the
requirements set forth in SCR 22.26.

     (j) The petitioner's proposed use of the license
if reinstated.

     (k) A full description of all of the petitioner's
business activities during the period of suspension or
revocation.

     (4m) The petitioner has made restitution to      or
settled all claims of persons injured or harmed       by
petitioner's misconduct, including reimbursement      to
the Wisconsin lawyers' fund for client protection    for
all payments made from that fund, or, if not,        the
                           6
                                                                            No.      2011AP2326-D



petition for reinstatement must show.                        All of these additional

requirements are effectively incorporated into SCR 22.31(1).

      ¶12   When we review a referee's report and recommendation,

we will adopt the referee's findings of fact unless they are

clearly erroneous.           Conclusions of law are reviewed de novo.

See    In   re      Disciplinary              Proceedings           Against         Eisenberg,

2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.

      ¶13   We     conclude         the        referee's           findings         support      a

determination that Attorney Eichhorn-Hicks has met his burden to

establish by clear, convincing, and satisfactory evidence that

he has met all of the standards required for reinstatement.

      ¶14   With    respect        to       the       concern     raised       in   the      OLR's

response to the reinstatement petition that Attorney Eichhorn-

Hicks may have practiced law during the term of his Wisconsin

suspension,      the     referee            said      that       having    heard       Attorney

Eichhorn-Hicks' testimony and explanation at the hearing, the

referee was satisfied that Attorney Eichhorn-Hicks did not in

fact engage in the practice of law while he was suspended.                                    The
referee said Attorney Eichhorn-Hicks credibly explained that he

anticipated      C.K.    would      be       engaging        a    new     lawyer      and    that

Attorney Eichhorn-Hicks would be turning over the file to C.K.'s

new   counsel.         Attorney      Eichhorn-Hicks               explained         that     under

SCR 20:1.16(d),         he   had        a     duty,      upon       termination         of    the

representation,         to   take       appropriate              steps    to      protect     his


      petitioner's explanation of the failure or inability
      to do so.

                                                  7
                                                                            No.    2011AP2326-D



client's interests.               Attorney Eichhorn-Hicks explained that on

April 30, 2012, after his Wisconsin license had been suspended,

he made a call to the district attorney's office to ask if there

had ever been a response to a settlement proposal he had made on

March    31,       2012.        Attorney       Eichhorn-Hicks          explained         at    the

hearing that he understood the case was over as far as his

involvement in it, and the purpose of his phone call was simply

to    inquire      if    there     had   been       a    response      to   his    settlement

proposal, as he anticipated forwarding information to C.K.'s new

attorney.

       ¶15     The      referee       said    SCR       22.26    envisions        an     orderly

winding       up   of    an    attorney's      practice         upon    suspension.           The

referee concluded that Attorney Eichhorn-Hicks' phone call to

the     district         attorney's      office          was     consistent        with       that

practice.          The     referee     said    he       was    satisfied     that       Attorney

Eichhorn-Hicks did not improperly engage in the practice of law

in Wisconsin during the term of his suspension.

       ¶16     The       referee       found        that       Attorney      Eichhorn-Hicks
complied with the terms of the order of his suspension.                                   While

the referee noted that Attorney Eichhorn-Hicks did not timely

file    the    affidavit        required       by    SCR      22.26(1)(e),        the    referee

found this to be a technical violation and an insignificant

factor in assessing the request for reinstatement.                                The referee

found that Attorney Eichhorn-Hicks has maintained competence in

learning in the law by attending various educational activities,

and    the    referee         found    that    Attorney         Eichhorn-Hicks'          conduct
since the suspension has been exemplary and above reproach.
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      ¶17     The referee also found that Attorney Eichhorn-Hicks

has a proper understanding of an attitude toward the standards

that are imposed upon members of the bar and that he will act in

conformity with those standards.                   The referee noted that in

addition to the 2000 suspension and the 2009 public reprimand

imposed by the Supreme Court of Minnesota, Attorney Eichhorn-

Hicks had a rather extensive history of discipline in Minnesota

which     included     multiple          private      admonitions        and     private

probations.       In spite of this history, the referee noted that

the     OLR   acknowledged        that     "Minnesota's         Office      of   Lawyers

Professional Responsibility continues to respond with reprimand

level     and     probationary          actions,      allowing        Eichhorn-Hicks'

continued       practice    in     Minnesota.          His   lengthy        career   and

Minnesota's reactions to his failures are persuasive evidence

that he does ultimately practice within standards sufficient to

safely    represent    the       public."       The    referee     noted     that    when

specifically      asked     at    the    hearing      whether    he    could     provide

assurances that from this point forward he would do his utmost
to    abide      by   all    of     the     technicalities,           "Eichhorn-Hicks

acknowledged that in the past, he probably wasn't as focused on

the rules as he should have been but that recently he had been

very careful, and was much more tuned-in to the rules than he

had ever been.        The assurance was given in a straight-forward

and credible fashion."

      ¶18     The referee concluded that Attorney Eichhorn-Hicks can

safely be recommended to the legal profession, the courts, and
the public as a person fit to be consulted by others and to
                                            9
                                                                          No.    2011AP2326-D



represent     them   and    otherwise          act    in        matters    of    trust       and

confidence     and   in    general       to    aid     in       the   administration         of

justice as a member of the bar and as an officer of the courts.

The referee stated:

            From his demeanor and presentation at the
       hearing, the Referee is persuaded that Eichhorn-Hicks
       can safely be recommended to return to the active
       practice of law in Wisconsin.       After 38 years in
       practice, he continues to work 60 to 70 hours per week
       and enjoys trying cases. Many of his representations
       are handled on a fixed-fee basis and he is willing to
       devote the time and effort necessary to handle matters
       properly.     During   the   term   of   his  Wisconsin
       suspension, he maintained an active law practice in
       Minnesota and there is no basis to question his
       fitness to represent clients in Wisconsin matters.
       ¶19   This court has carefully evaluated whether Attorney

Eichhorn-Hicks has met the requirements for the reinstatement of

his license to practice law in Wisconsin, and we conclude that

he has.      We agree with the referee that Attorney Eichhorn-Hicks

has met his burden of proof with respect to all elements needed

to justify his reinstatement.

       ¶20   Attorney      Eichhorn-Hicks            has    objected       to    the     OLR's
statement     of   costs    and    argues      that        it   represents       a    fine   or

penalty.      He points out that when his Minnesota license was

suspended for one year in 2000, he did not practice in either

Minnesota or Wisconsin for that year and it was not until more

than   ten   years   later        that   the    OLR        discovered      the       Minnesota

suspension and pursued reciprocal discipline which led to the

one-year suspension of Attorney Eichhorn-Hicks' Wisconsin law
license effective in April of 2012.                         The referee found this


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                                                                 No.   2011AP2326-D



argument     to   be    persuasive,    saying     Attorney       Eichhorn-Hicks'

primary mistake was to fail to report his Minnesota discipline

to the OLR as required by SCR 22.22.             The referee opines that if

Attorney Eichhorn-Hicks had reported the Minnesota discipline in

2000, it is likely that the Wisconsin suspension would have been

made coterminous with the suspension of Attorney Eichhorn-Hicks'

Minnesota license.       The referee said, "Because of his failure to

comply     with   the   notification        requirements    of     SCR 22.22(1),

Mr. Eichhorn-Hicks has been subjected to a serious sanction and,

in effect, a second one-year suspension."                For that reason, the

referee recommends that this court relieve Attorney Eichhorn-

Hicks from having to pay the fees and expenses of the OLR's

counsel in the reinstatement case, which would reduce the net

cost assessment to $1,594.65.

    ¶21     This court's general practice is to assess the full

costs against a respondent.           SCR 22.24(1m).       In order to award

something     less      than   full    costs,      the     court       must   find

extraordinary circumstances.          We do not believe that this case
presents the sort of extraordinary circumstances necessary to

relieve Attorney Eichhorn-Hicks from having to bear the full

costs of the reinstatement proceeding.

    ¶22     IT IS ORDERED that the license of Tracy R. Eichhorn-

Hicks to practice law in Wisconsin is reinstated effective the

date of this order.

    ¶23     IT IS FURTHER ORDERED that within 60 days of the date

of this order, Tracy R. Eichhorn-Hicks shall pay to the Office


                                       11
                                                No.   2011AP2326-D



of Lawyer Regulation the costs of this proceeding, which are

$3,159.37.

    ¶24   IT IS FURTHER ORDERED that compliance with all of the

terms of this order remain a condition of Tracy R. Eichhorn-

Hicks' license to practice law in Wisconsin.




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    No.   2011AP2326-D




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