                                                               2016 WI 9

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2014AP7-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Michael J. Hicks, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Michael J. Hicks,
                                  Respondent-Appellant.

                             DISCIPLINARY PROCEEDINGS AGAINST HICKS

OPINION FILED:          February 17, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                               2016 WI 9
                                                                      NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.    2014AP7-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-Respondent,
                                                                      FEB 17, 2016
      v.
                                                                        Diane M. Fremgen
                                                                     Clerk of Supreme Court
Michael J. Hicks,

            Respondent-Appellant.




      ATTORNEY      disciplinary          proceeding.        Attorney's          license

suspended.



      ¶1    PER    CURIAM.     We   review       the    report      of   the    referee,

Attorney James J. Winiarski, who found that Attorney Michael J.

Hicks had committed 35 counts of professional misconduct and

recommended   that    Attorney      Hicks'    license         to    practice     law     in

Wisconsin be suspended for a period of two years.

      ¶2    The    first    issue   we    must    address       is    the    status      of

Attorney Hicks' appeal and the nature of our review.                           After the
referee    filed   his     report   and    recommendation,            Attorney      Hicks
                                                                    No.    2014AP7-D



filed a notice of appeal on February 6, 2015.                       On that same

date, pursuant to its standard practice, the clerk of this court

issued a notice to the parties acknowledging the filing of the

notice of appeal, informing Attorney Hicks of the need to file a

statement      on    transcript,      and   advising    him    of   the    briefing

schedule.      Attorney Hicks did not file either a statement on

transcript or an opening brief.                 On April 9, 2015, the clerk's

office issued an order on behalf of the court advising Attorney

Hicks that his opening brief was delinquent and that, unless he

filed the opening brief or a motion for an extension of time

within     five     days,   the     disciplinary     case   would    be    resolved

summarily.        Attorney Hicks did not respond.             On June 15, 2015,

the Office of Lawyer Regulation (OLR) formally moved for the

dismissal of Attorney Hicks' appeal.                 Attorney Hicks still did

not respond.        Thus, despite being notified on multiple occasions

that his failure to respond might result in the dismissal of his

appeal and/or the court's consideration of the referee's report

on a summary basis (without the filing of appellate briefs as if
no appeal had been filed), Attorney Hicks still failed to file

an opening brief or otherwise respond.

      ¶3     Appeals in attorney disciplinary cases are subject to

the rules of appellate procedure for civil cases.                   Supreme Court

Rule (SCR) 22.17(3).          Sanctions for failing to comply with those

rules are likewise available as they would be in other civil

appeals.     See Wis. Stat. § (Rule) 809.83(2); In re Disciplinary

Proceeding Against Crandall, 2011 WI 21, ¶13, 332 Wis. 2d 698,
798   N.W.2d      183.      Those   sanctions     include     "dismissal    of   the
                                            2
                                                                    No.     2014AP7-D



appeal, summary reversal, striking of a paper, imposition of a

penalty or costs on a party or counsel, or other action as the

court considers appropriate."            Wis. Stat. § (Rule) 809.83(2).

       ¶4   In ordinary civil cases, dismissal of an appeal with

prejudice is a drastic action because "in many cases it imposes

a    finality    to    both    issues    and   claims."     State      v.   Smythe,

225 Wis. 2d 456, 469, 592 N.W.2d 628 (1999).                    When an ordinary

civil appeal is dismissed by the court of appeals, the circuit

court's final judgment or order stands without any consideration

of    the   merits.           Consequently,     this   court     has   authorized

dismissal       of    civil    appeals   only    where    the    appellant      "has

demonstrated bad faith or egregious conduct, or there must be a

common sense finding that the appeal has been abandoned."                    Id.

       ¶5   Whether Attorney Hicks' failure to file any brief in

this court can be characterized as "egregious" or "bad faith"

are issues we need not reach.              A stronger argument can be made

that Attorney Hicks has abandoned his appeal.                    In addition to

the notice provided in the rules of appellate procedure that he
must file a brief, see Wis. Stat. § (Rule) 809.19(1), he twice

received notices from the clerk of this court that reminded him

of his obligation to file a brief.                Indeed, the April 9, 2015

order issued through the clerk's office explicitly stated that

his brief was delinquent and that he had five days to file his

brief or to seek an extension.             That order did not spur Attorney

Hicks to any action, even though it advised him that failure to

comply would result in the court resolving his case in a summary
manner.     Attorney Hicks' failure to take any action in the face
                                          3
                                                                          No.   2014AP7-D



of the court's order is a clear indication that he had decided

to abandon his appeal.                 That intention was confirmed when the

OLR   subsequently        filed    a     motion    to    dismiss   his    appeal,    and

Attorney Hicks failed even to file a response to the motion.

Thus,      this   court    has     received        not    one    communication      from

Attorney     Hicks   since        he    filed     his    short   notice    of   appeal.

Common sense would seem to require characterizing this pattern

of conduct as clearly demonstrating an intent to abandon the

appeal.

      ¶6     At a minimum, Attorney Hicks has failed to file any

brief even after being informed in April 2015 that this court

would summarily resolve his case if he failed to file a brief

within five days.          His prolonged course of inaction and failure

to communicate with this court constitutes a forfeiture of his

right to file a brief, even if we do not formally dismiss his

appeal.

      ¶7     Ultimately, we choose not to formally dismiss Attorney

Hicks' appeal, but merely to proceed to consider the matter
without the benefit of briefs.                  This choice, however, will have

no real effect on how we proceed in this disciplinary case.                           In

either case, because this is an attorney disciplinary matter

that has come to us via a referee's report and recommendation

rather than a lower court "judgment" that we could simply affirm

without consideration of the merits, we must proceed to review

the referee's report and recommendation on the merits.                          Because

there are no briefs and no specific issues presented for our
review, we will still proceed with our review as if no appeal
                                            4
                                                                               No.     2014AP7-D



had   been   filed,       which       means   that       we    will   still      review       the

referee's     findings      of    fact    and       conclusions         of    law     and    will

determine an appropriate level of discipline for any misconduct

that is found.       See SCR 22.17(2).1

      ¶8     We will affirm the referee's findings of fact unless

they are found to be clearly erroneous, but we will 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.                   If professional misconduct is

found, we will 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.

      ¶9     After reviewing this matter, we accept the referee's

findings     of    fact    and    legal       conclusions        that        Attorney       Hicks

committed     35   counts        of    professional           misconduct.            Given    the

pattern of Attorney Hicks' misconduct, the number of clients
affected, and his cavalier attitude toward the lawyer regulation

system and the resulting temporary suspensions of his license,

      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.


                                              5
                                                                           No.   2014AP7-D



we    determine    that    a    two-year          suspension   of    his    license    to

practice law is appropriate.                 We further require Attorney Hicks

to pay the costs of this disciplinary proceeding, which were

$10,572.49 as of February 4, 2015.

       ¶10   Attorney Hicks was admitted to the practice of law in

this state in June 1984.              He most recently maintained a private

law practice in West Allis.

       ¶11   Attorney Hicks has been the subject of professional

discipline on one prior occasion.                   In 2012 he received a public

reprimand    after      stipulating          to    nine   counts     of    professional

misconduct.        In     re    Disciplinary         Proceedings     Against      Hicks,

2012 WI 11, 338 Wis. 2d 558, 809 N.W.2d 33.

       ¶12   As the referee noted, there is a general pattern to

Attorney Hicks' misconduct.               His practice focused primarily on

representing      indigent          defendants       in   criminal    cases      through

appointments by the Office of the State Public Defender (SPD) or

by a court.       While Attorney Hicks would usually send an initial

letter to the client notifying him/her of the appointment and
his   representation,          he    would    largely     ignore     the    client    for

extended periods of time.               At times, Attorney Hicks would fail

to follow through on necessary actions.                     At some point the OLR

would receive a grievance, which they would send to Attorney

Hicks for a written response.                Attorney Hicks would either never

respond, or he would provide an initial response that the OLR

deemed inadequate and he would then fail to respond to the OLR's

requests for further information.


                                              6
                                                                                      No.    2014AP7-D



    ¶13     On    two    occasions,           the    OLR    moved          for    the       temporary

suspension of Attorney Hicks' license due to his willful failure

to cooperate with the OLR's investigations.                                      The first such

motion was filed on June 14, 2012.                         This court then issued an

order    directing      Attorney          Hicks     to    show    cause          in     writing      by

July 5,    2012,       why     his       license         should       not        be    temporarily

suspended.        On    July       17,    2012,      Attorney         Hicks       filed       a    late

response    asserting        that        he   had    submitted         a    response          to    the

grievance to the OLR.                The OLR, however, stated that Attorney

Hicks'    response      was     insufficient             and     asked       him       to     provide

additional      information.              The   OLR      twice    asked          this       court    to

postpone suspending Attorney Hicks' license to allow Attorney

Hicks more time to provide a complete response to the OLR's

requests for information.                 When the OLR reported that Attorney

Hicks had failed to provide any additional information, this

court finally temporarily suspended his license on September 27,

2012.     Only after the temporary suspension of his license did

Attorney Hicks submit a response to the grievance that provided
the information the OLR was seeking.                        The court then reinstated

Attorney Hicks' license on October 16, 2012.

    ¶14     The    OLR       was     forced       to     file     a    second          motion       for

temporary suspension on November 29, 2012, when Attorney Hicks

failed     to    provided       adequate            responses         in     other          grievance

investigations.         This court again issued an order to show cause.

Attorney Hicks did not respond to the order, and this court then

temporarily suspended his license again on February 12, 2013.
Once that suspension had been ordered, Attorney Hicks began to
                                                7
                                                                                  No.    2014AP7-D



cooperate with the OLR's investigations.                              The OLR notified the

court of that fact, and we reinstated Attorney Hicks' license to

practice law in this state on March 11, 2013.

      ¶15        We    now     turn    to    the       specific      factual      findings     and

conclusions of professional misconduct.

      Representation of D.S.

      ¶16        In     June     2011,       Attorney         Hicks     was     appointed       to

represent        D.S.     in    a     criminal     case       pending      in   the     Milwaukee

County circuit court.                 Attorney Hicks did meet with D.S. on at

least two occasions and also met with D.S.'s wife to discuss

various issues related to the defense of the case, including the

execution of a search warrant and a possible motion to suppress

evidence.             Attorney Hicks and D.S. did not agree on several

aspects of the motion.                      Attorney Hicks did file a motion to

suppress, but the November 9, 2011 hearing on the motion was

adjourned to January 26, 2012, because a witness for the state

was not present.               On November 9, 2011, and in a letter mailed

the next day, D.S. asked Attorney Hicks to amend the suppression
motion      to    add        additional       arguments,        to    subpoena        additional

witnesses for the hearing, and to investigate what D.S. believed

was a faulty affidavit.                  The referee found that Attorney Hicks

did   not    subpoena          the    additional         witnesses      requested        by   D.S.

because he believed they would be detrimental to D.S.'s chance

of    obtaining         suppression          and       that   he     did    not    pursue      the

additional arguments raised by D.S. because he believed them to

be without merit.               Attorney Hicks, however, did not communicate
with D.S. between November 16, 2011, and the adjourned hearing
                                                   8
                                                    No.   2014AP7-D



on January 26, 2012, when Attorney Hicks' motion to withdraw as

D.S.'s counsel was granted by the circuit court.

    ¶17     On December 24, 2011, D.S. mailed a grievance letter

to the OLR regarding Attorney Hicks' representation.      The OLR

twice communicated by letter with Attorney Hicks and asked him

to respond to D.S.'s grievance.     When Attorney Hicks did not

respond, the OLR included Attorney Hicks' failure to cooperate

as a basis for its first motion for a temporary suspension.

    ¶18     On the basis of these facts, the referee concluded

that the OLR had not proven to the requisite standard of clear,

satisfactory, and convincing evidence that Attorney Hicks had

violated SCR 20:1.32 by failing to act with reasonable diligence.

The referee also determined that the OLR had failed to prove

violations of SCRs 20:1.4(a)(2) and (4)3 and 20:1.4(b),4 but he


    2
       SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
    3
         SCR 20:1.4(a), as relevant here, provides that 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; [and]

         (4) promptly comply with reasonable requests by
    the client for information.
    4
       SCR 20:1.4(b) provides that "[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation."


                                9
                                                                   No.   2014AP7-D



did find that the OLR had proven a failure to communicate with

D.S.,    in    violation    of    SCR   20:1.4(a)(3).      In   addition,       the

referee       concluded    that   Attorney     Hicks'    failure    to   file    a

response to D.S.'s grievance until this court had temporarily

suspended       his     license     had    constituted     a    violation        of

SCR 22.03(2) and (6),5 which are enforced via SCR 20:8.4(h).6




     5
         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 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.
     6
       SCR 20:8.4(h) provides that it is professional misconduct
for a lawyer to "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)."


                                          10
                                                                         No.     2014AP7-D



      Representation of C.N.

      ¶19     In the fall of 2011, Attorney Hicks was appointed to

represent client C.N. in a criminal appeal before the United

States Court of Appeals for the Seventh Circuit.                           The opening

brief in the appeal was due on November 14, 2011, but Attorney

Hicks did not file any brief.                   Over the next six weeks, the

Seventh Circuit issued two separate orders to show cause why

C.N.'s appeal should not be dismissed for want of prosecution.

Attorney Hicks did not respond to either of the two orders.

Finally, in an order dated April 19, 2012, the chief judge of

the Seventh Circuit discharged Attorney Hicks from C.N.'s appeal

and ordered him to show cause why he should not be censured,

fined, suspended, or disbarred from practicing in the Seventh

Circuit     due    to    his   defiance    of    the    court's      orders      and   his

abandonment of his client.               The Seventh Circuit ultimately did

disbar Attorney Hicks from appearing before it.

      ¶20     The OLR sent several letters to Attorney Hicks seeking

a response regarding his actions in the C.N. representation.
After the second OLR letter, Attorney Hicks asked for a short

extension to submit his response, but he did not respond.                          After

the third OLR letter, Attorney Hicks submitted another letter in

which he merely asserted that his trial schedule had prevented

him   from    completing       his   response,         that   he   was     working      on

compiling the necessary documents and information, and that he

would   try       to    complete   his    response      as    soon    as    he    could.

Attorney Hicks, however, never filed a substantive response.                            He


                                          11
                                                                               No.     2014AP7-D



also did not respond to this court's order to show cause, which

led to the second temporary suspension described above.

       ¶21      The     referee      determined      that       these    facts        supported

three counts of misconduct.                   First, Attorney Hicks' failure to

file       a   brief,    seek     an   extension      of      time,     or    withdraw     from

representing          C.N.     had     constituted       a     lack    of     diligence,      in

violation        of     SCR   20:1.3.         The    referee      also       concluded     that

Attorney Hicks had violated SCR 20:3.4(c)7 by failing to respond

to     the     Seventh        Circuit's       multiple        orders     to     show     cause.

Finally,        Attorney       Hicks'     failure        to    respond        to   the   OLR's

requests for a response had violated SCR 22.03(2) and (6), which

are enforced via SCR 20:8.4(h).

       Representation of R.C.

       ¶22      Attorney       Hicks    was    appointed        to     represent       R.C.   in

post-conviction           proceedings         or    on       appeal     following        R.C.'s

criminal conviction.              Attorney Hicks never had any contact with

R.C. and failed to take any action on his behalf, causing R.C.'s

appeal rights to expire without his consent.                                 Ultimately, the
SPD was forced to appoint new counsel for R.C.

       ¶23      The     referee      concluded      that      Attorney       Hicks'    lack   of

action during the representation of R.C. supported two counts of

misconduct.           First, Attorney Hicks failed to act with reasonable

diligence, in violation of SCR 20:1.3.                         Second, Attorney Hicks'

       7
       SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."


                                               12
                                                                No.     2014AP7-D



lack of communication with his client constituted violations of

SCRs 20:1.4(a)(2), (3), and (4) and 20:1.4(b).

    Representation of L.B.

    ¶24     Attorney Hicks was also appointed to represent L.B. in

criminal post-conviction matters.            In a July 30, 2012 order, the

circuit court ordered Attorney Hicks to file a brief in support

of a previously filed post-conviction motion by September 4,

2012.     Attorney Hicks failed to file the brief as ordered or to

seek an extension of time prior to the temporary suspension of

his license to practice law in Wisconsin.             Indeed, except for an

introductory letter to L.B. notifying him of Attorney Hicks'

appointment, Attorney Hicks did not meet with L.B., respond to

letters    from   L.B.    requesting    information    about   his     case,   or

otherwise keep L.B. informed about the status of his case.                  When

this court issued its first temporary suspension order against

Attorney    Hicks   in    September     2012,   Attorney   Hicks      failed   to

notify L.B. of his suspension.               Attorney Hicks also failed to

notify    the   circuit    court   or   opposing   counsel.     Finally,       as
occurred in other matters, Attorney Hicks promised the OLR that

he would provide a response to L.B.'s grievance, but he failed

to do so in a timely manner, responding only after this court

had issued its second temporary suspension order in February

2013.

    ¶25     The referee concluded that the OLR had not proven to

the requisite standard of proof that Attorney Hicks' failure to

file a written request for an extension of time to file the
post-hearing brief had constituted a violation of SCR 20:1.3.
                                        13
                                                          No.   2014AP7-D



The referee did find that Attorney Hicks had failed to properly

communicate with L.B., in violation of SCRs 20:1.4(a)(2), (3),

and   (4)   and   20:1.4(b).   The    referee   also   determined   that

Attorney Hicks' failure to notify his client of his temporary

suspension had violated SCRs 22.26(1)(a) and (b)8 and 20:3.4(c).9

Similarly, Attorney Hicks' failure to notify the circuit court

and opposing counsel of the temporary suspension violated SCRs

22.26(1)(c)10 and 20:3.4(c).   Finally, the referee concluded that

      8
       SCR 22.26(1)(a) and (b) provide that, on or before the
effective date of a license suspension, an attorney whose
license is suspended shall "[n]otify by certified mail all
clients being represented in pending matters 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," and shall "[a]dvise the clients to seek legal
advice of their choice elsewhere."
      9
       As noted above, SCR 20:3.4(c) provides that a lawyer shall
not "knowingly disobey an obligation under the rules of a
tribunal, except for an open refusal based on an assertion that
no valid obligation exists." We question whether an attorney's
failure to notify the attorney's client, opposing counsel, or a
court of a temporary license suspension can constitute a
violation of SCR 20:3.4, which bears the title "Fairness to
opposing   party  and   counsel."     Multiple   counts  alleging
violations of SCR 22.26 also alleged violations of SCR 20:3.4(c)
in this matter.     We need not decide this question, however,
because the failure to comply with the obligations in
SCR 22.26(1) to notify clients, opposing counsel, and courts of
an attorney's temporary license suspension clearly constitutes a
violation of 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."
      10
       SCR 22.26(1)(c) provides that, on or before the effective
date of a license suspension, an attorney whose license is
suspended shall:

                                                            (continued)
                                 14
                                                                              No.     2014AP7-D



Attorney Hicks' failure to respond to L.B.'s grievance until

after    this    court       had     temporarily      suspended        his    license      had

violated       SCR        22.03(2)     and    (6),     which         are     enforced      via

SCR 20:8.4(h).

    Representation of E.B.

    ¶26     Attorney Hicks was representing E.B. at the time that

this court imposed both of the temporary license suspensions (in

September 2012 and in February 2013).                      The referee found that in

neither instance did Attorney Hicks notify E.B. of the license

suspension,      in        violation    of     SCRs        22.26(1)(a)       and     (b)   and

20:3.4(c).       The referee also found that Attorney Hicks failed to

notify    the    court       and     opposing      counsel      of    his     two     license

suspensions,         in    violation    of    SCRs    22.26(1)(c)           and     20:3.4(c).

Finally, the referee determined that Attorney Hicks had failed

to respond to E.B.'s grievance, in violation of SCR 22.03(2) and

(6), which are enforced via SCR 20:8.4(h).

    Representation of V.B.

    ¶27     In       early    December       2011,    the    United        States    District
Court    for     the       Eastern     District       of     Wisconsin       (the     Eastern


         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.


                                              15
                                                                  No.    2014AP7-D



District) appointed Attorney Hicks to represent client V.B. in a

criminal case pending in that court.                   V.B.'s sentencing was

initially   scheduled    for   February     28,    2012.        Except    for   an

introductory    letter   informing    V.B.        of    his   appointment       and

despite V.B.'s multiple attempts at contact, Attorney Hicks did

not communicate with V.B. to discuss the case or prepare for the

sentencing hearing, causing V.B. to send a letter to that effect

to the federal court prior to the sentencing hearing.

    ¶28     Without consulting V.B., Attorney Hicks sent a letter

to the court the day before the sentencing hearing, requesting

an adjournment of the hearing.            In his letter, although he had

never spoken with V.B., Attorney Hicks stated that V.B. had

"expressed some concerns about my representation of him, and I

would like the opportunity to spend more time with [V.B.] to

discuss his case and address his concerns."                   On the same day,

Attorney Hicks sent a letter to V.B. notifying him that Attorney

Hicks had unilaterally sought the adjournment of the sentencing

hearing.
    ¶29     When Attorney Hicks still did not communicate with him

regarding the sentencing hearing, V.B. sent another letter to

the court asking for the appointment of new counsel.                    The court

responded that it would address V.B.'s request at the sentencing

hearing now scheduled for April 11, 2012.                 The day before the

sentencing hearing, however, Attorney Hicks again requested an

adjournment of the sentencing hearing without consulting or even

notifying V.B.    The referee also found that Attorney Hicks had


                                     16
                                                                                No.   2014AP7-D



not done "any appreciable preparation for [V.B.'s] sentencing"

by that time.

       ¶30     The     court    adjourned           the    sentencing          hearing,     but

scheduled a status conference for April 19, 2012.                                     Attorney

Hicks unsuccessfully attempted to have this status conference

adjourned.       At the status conference, the Eastern District judge

removed Attorney Hicks from V.B.'s case and appointed successor

counsel.

       ¶31     V.B. filed a grievance with the OLR, which in turn

notified Attorney Hicks and asked for a response in a letter

dated July 24, 2012.                Attorney Hicks requested an extension to

respond, but he failed to provide any response until after this

court   had     imposed       the    first    temporary          license       suspension    in

September 2012.             The OLR then requested additional information

from Attorney Hicks regarding the V.B. representation.                                    Long

after the deadline for his supplemental response, Attorney Hicks

faxed a letter to the OLR in late November 2012, claiming that

his    trial    schedule        had    prevented          him    from    responding,        but
assuring       the    OLR    that     he     was    compiling       the    documents        and

information the OLR requested and promising the OLR that he

would complete the work on his supplemental response as soon as

he    could.         Attorney       Hicks,    however,          failed    to    provide     any

supplemental response until after this court had suspended his

license a second time due to his willful failure to cooperate

with the OLR's investigations.

       ¶32     Based    on     these       facts,    the    referee        concluded      that
Attorney Hicks had violated SCR 20:1.3 due to his failure to
                                              17
                                                                         No.     2014AP7-D



prepare for and proceed with V.B.'s sentencing over a period of

more than four months, which ultimately resulted in his removal

from the case and the appointment of new counsel.                        Further, the

referee determined that Attorney Hicks' failure to communicate

with his client, both to advise the client of his actions and to

respond to the client's multiple requests for information, had

violated SCRs 20:1.4(a)(2), (3), and (4) and 20:1.4(b).                                  In

addition,     the    referee      again    ruled    that     Attorney      Hicks        had

violated     SCR     22.03(2)       and    (6),     which     are       enforced        via

SCR 20:8.4(h), by failing to provide timely responses to the

OLR's   requests      for   information         about    V.B.'s    grievance.           The

referee,     however,       did    not     find    that     Attorney       Hicks        had

"engage[d]    in     conduct      involving     dishonesty,       fraud,       deceit    or

misrepresentation," in violation of SCR 20:8.4(c), as charged in

the OLR's complaint.

      Representation of J.M.

      ¶33    Attorney Hicks was appointed to represent client J.M.

in   May    2012.      During      the    period    of    Attorney      Hicks'     first
temporary suspension, he continued to make court appearances on

J.M.'s behalf.        He also failed to properly notify J.M. of his

temporary suspensions.            When the OLR notified Attorney Hicks of

J.M.'s grievance and asked for certain information and documents

in response to the grievance, Attorney Hicks failed to respond.

      ¶34    The referee concluded that Attorney Hicks' failure to

notify J.M. of either of the temporary suspensions had violated

SCRs 22.26(1)(a) and (b) and 20:3.4(c).                  He also determined that
Attorney     Hicks    had   violated       SCRs    22.26(2)       and   20:3.4(c)        by
                                           18
                                                                             No.     2014AP7-D



making court appearances on behalf of J.M. at a time when his

license      had    been      temporarily          suspended.        Finally,       Attorney

Hicks' failure to respond to the OLR's request for information

violated      SCR       22.03(2)        and       (6),    which     are     enforced        via

SCR 20:8.4(h).

       Representations of K.L. and F.W.

       ¶35    In       August       2011,     the     Eastern      District        appointed

Attorney Hicks to represent K.L. in a criminal case pending in

that court.

       ¶36    On April 19, 2012, while K.L's case was still pending,

the Seventh Circuit removed Attorney Hicks as counsel for C.N.,

as noted above.               It also removed his name from the list of

counsel      eligible         to    receive       appointments      under    the     federal

Criminal Justice Act and disbarred him from practicing before

that court.            The Seventh Circuit's orders, however, did not

remove him as counsel in federal district court cases where he

had    already         been        appointed,      nor    did     they    terminate         his

eligibility to practice in the Eastern District.
       ¶37    On July 25, 2012, K.L. sent a letter to the Eastern

District requesting that the court advise him of the date and

time for his next court appearance.                           The court subsequently

notified him that his change of plea hearing was scheduled for

September 6, 2012.                 Attorney Hicks, however, failed to appear

for    that     hearing,           which    led      to   a   lengthy     expression         of

frustration by the district court judge.                         The judge stated that

this   was    the      second       time    that     Attorney     Hicks   had      failed    to
appear    for      a    district       court       hearing      following    his     Seventh
                                                19
                                                                               No.    2014AP7-D



Circuit      disbarment,       that    Attorney     Hicks     apparently             held    the

mistaken      view   that      the    Seventh     Circuit     disbarment             had    also

suspended him from practicing before the Eastern District, and

that Attorney Hicks had not bothered to seek clarification from

the Eastern District before deciding not to appear for hearings

in which he represented the defendant.                       The judge noted that

Attorney Hicks' actions were causing disruptions with both the

U.S. Marshal's Service, which brings defendants from custody to

the district court for appearances, and the court's calendar.

The    judge      indicated      that       he     would     hold        Attorney          Hicks

responsible for some or all of the expenses connected with his

failure      to   appear    because      Attorney        Hicks     had    been        "totally

irresponsible in his obligations as an officer of this court in

not communicating not only with the Court but more significantly

with   his     clients."        The     district     court        terminated          Attorney

Hicks' appointment for K.L. and appointed successor counsel.

       ¶38    On that same date, Attorney Hicks was also scheduled

to appear on behalf of client F.W., whom Attorney Hicks had been
representing since September 2008.                  Since the beginning of 2012

F.W. had sent three letters to the Eastern District complaining

that Attorney Hicks had not been responding to his requests for

information and to discuss his upcoming sentencing hearing.                                   In

one such letter, F.W. requested that new counsel be appointed to

replace       Attorney     Hicks      due    to     his     inattentiveness.                  On

September 6,       2012,    when      Attorney     Hicks     failed       to     appear      for

K.L.'s       hearing,    the    district         court     also    removed           him    from
representing F.W. and appointed successor counsel for F.W.
                                            20
                                                                                    No.       2014AP7-D



      ¶39       Several weeks after Attorney Hicks was removed from

representing          K.L.    and    F.W.,       the     chief      judge     of    the       Eastern

District entered an order removing Attorney Hicks from the list

of   attorneys          eligible         to    receive       appointments          to     represent

indigent defendants in the Eastern District.

      ¶40       When     the     OLR          notified         Attorney       Hicks           of     its

investigation of his conduct in these matters in October 2012,

Attorney        Hicks    initially            responded      by    asserting        that      he     was

working on compiling the necessary documents and information,

that he had "limited time to work on the grievances," and that

he would try to complete his work on the responses as soon as he

could.           He     did    not,           however,       submit     a     response             until

February 26,          2013,    after          this     court      had   imposed         the    second

temporary        suspension         of    his     license         due   to    his       failure      to

cooperate with the OLR's investigations.                            When the OLR requested

additional information, Attorney Hicks again failed to respond.

      ¶41       The    referee      determined           that     the   OLR    had        failed      to

prove      by    clear,       satisfactory,            and     convincing      evidence             that
Attorney Hicks had violated SCR 20:1.16(d)11 by failing to file
      11
           SCR 20:1.16(d) provides:

           Upon termination of representation, a lawyer
      shall take steps to the extent reasonably practicable
      to protect a client's interests, such as giving
      reasonable notice to the client, allowing time for
      employment of other counsel, surrendering papers and
      property to which the client is entitled and refunding
      any advance payment of fee or expense that has not
      been earned or incurred. The lawyer may retain papers
      relating to the client to the extent permitted by
      other law.


                                                  21
                                                                                  No.    2014AP7-D



motions to withdraw from representing K.L. and F.W.                                The referee

did conclude, however, that the OLR had adequately proven two

counts of failing to provide timely responses to the OLR, in

violation     of     SCR    22.03(2)       and       (6),    which     are    enforced        via

SCR 20:8.4(h).

      Representation of Q.W.

      ¶42     In    March        2012     Attorney          Hicks     was     appointed        to

represent     Q.W.    in    a     criminal        case      pending    in    the        Milwaukee

County    circuit      court.            Over     the     next      approximately          eleven

months, Attorney Hicks sent only two letters to Q.W.                                One letter

advised Q.W. of Attorney Hicks' appointment.                           The second letter

responded     to    one     of    Q.W.'s        concerns      regarding       the       evidence

against him.        Attorney Hicks, however, failed to respond to four

letters     that     Q.W.        sent     to    him,      failed      to     send       specific

information that Q.W. had requested, and failed to keep him

informed of developments in his case, all of which resulted in

Q.W. not knowing the status of his case by February 2013.

      ¶43     In   addition,        during        the     time      that    Attorney        Hicks
represented        Q.W.,    his         license      to     practice        law     was     twice

temporarily suspended due to his failure to cooperate with OLR

investigations concerning other matters.                         Attorney Hicks failed

to notify Q.W. of either temporary suspension.                               He also failed

to   notify    the    court       and     opposing        counsel      of    the        temporary

suspensions.         In fact, during the second temporary suspension

Attorney Hicks participated in a hearing on a motion filed by

Q.W. seeking to terminate Attorney Hicks' representation and to
obtain new counsel.              At no time during the hearing did Attorney
                                                22
                                                                        No.    2014AP7-D



Hicks indicate that his license was then suspended.                      Ultimately,

unaware of Attorney Hicks' license status, the circuit court

denied Q.W.'s motion and kept Attorney Hicks on Q.W.'s case.

     ¶44   Attorney Hicks again failed to respond to the OLR's

request for a response to the grievance that Q.W. subsequently

filed.

     ¶45   The referee concluded that the OLR had proven five

counts of misconduct regarding Attorney Hicks' representation of

Q.W. and his response to the OLR's investigation.                             Attorney

Hicks violated SCRs 20:1.4(a)(2), (3), and (4) and 20:1.4(b) by

failing to properly communicate with Q.W. regarding the status

of his case, developments in his case, and the means by which

Attorney Hicks intended to defend him.                   Attorney Hicks' failure

to   notify     Q.W.     of    his     two    temporary       license    suspensions

constituted     a      violation       of    SCRs    22.26(1)(a)       and    (b)     and

20:3.4(c).      Similarly, Attorney Hicks' failure to notify the

court and opposing counsel of those same license suspensions

also violated SCRs 22.26(1)(c) and 20:3.4(c).                          When Attorney
Hicks appeared on Q.W.'s behalf while his license to practice

law in Wisconsin was suspended, he violated SCRs 22.26(2) and

20:3.4(c).      Finally, Attorney Hicks' failure to submit a timely

response   to    Q.W.'s       grievance      violated    SCR   22.03(2)       and    (6),

which are enforced via SCR 20:8.4(h).

     Grievance Investigations Regarding M.W. and T.T.

     ¶46   Attorney       Hicks      was    appointed    to    represent      M.W.    and

T.T. in their respective cases.                   The referee's findings did not
involve      Attorney         Hicks'        representations       of     those        two
                                             23
                                                                         No.     2014AP7-D



individuals, but rather focused on Attorney Hicks' failure to

respond to their grievances.                   The referee concluded that by

failing to submit timely responses to their grievances and doing

so only after the court had temporarily suspended his license,

Attorney Hicks had violated SCR 22.03(2) and (6), which are

enforced via SCR 20:8.4(h).

       Conduct Following Second Temporary Suspension

       ¶47   Finally,     the     referee      addressed   a     series    of    alleged

violations stemming from Attorney Hicks' conduct following the

second temporary suspension of his license on February 12, 2013.

By    this   time,    Attorney        Hicks    had    already    been     through     the

process      of    having       his    license       temporarily    suspended         and

obtaining the reinstatement of his license.                        One requirement

imposed on an attorney whose license is suspended, even on a

temporary basis, is to submit an affidavit to the OLR listing

the   clients      involved     in    pending    matters    at    the     time   of   the

suspension and demonstrating the attorney's compliance with the

suspension        order   and    applicable       rules,   which        would    include
providing     proper      notice      to      clients,   opposing       counsel,      and

courts.      SCR 22.26(1)(e).12            On March 6, 2013, Attorney Hicks

       12
       SCR 22.26(1)(e) provides that, on or before the effective
date of a license suspension, an attorney whose license is
suspended shall:

            Within 25 days after the effective date of
       suspension or revocation, file with the director an
       affidavit showing all of the following:

            (i) Full compliance with the provisions of the
       suspension or revocation order and with the rules and
                                                      (continued)
                                            24
                                                                                   No.     2014AP7-D



filed    an    affidavit          pursuant       to    that    rule,       which     he    himself

purported to notarize, that claimed that he had mailed written

notice    of    his        temporary      suspension          to    all    of   his       clients,

notified the SPD, and notified each court in which he had a

pending case.          He included a list of 14 clients that he asserted

showed "all clients and pending court matters."

    ¶48        Attorney       Hicks'       affidavit          was     false        in     multiple

respects.        He had not provided proper notice to all of his

clients and to opposing counsel.                        He also had not notified a

number   of     judges       before       whom    he    had    pending       cases        that   his

license had been suspended.                      He also failed to list at least

nine pending cases in which he was counsel.

    ¶49        In addition, during his temporary suspension, Attorney

Hicks appeared in court of behalf of clients on at least 12

occasions.            He    did     not    advise       those       courts      that       he    was

ineligible to appear at that time.

    ¶50        When    the     OLR    asked       Attorney         Hicks    for     information

regarding his compliance with the post-suspension obligations
imposed by SCR 22.26, he again failed to respond.

    procedures             regarding      the     closing      of    the     attorney's
    practice.

         (ii) A list of all jurisdictions, including
    state, federal and administrative bodies, before which
    the attorney is admitted to practice.

         (iii) A list of clients in all pending matters
    and a list of all matters pending before any court or
    administrative agency, together with the case number
    of each matter.


                                                 25
                                                                             No.   2014AP7-D



       ¶51    The     referee       concluded       that       Attorney    Hicks'        post-

suspension conduct and his affidavit supported six counts of

misconduct.         On two counts, the referee concluded that Attorney

Hicks had violated SCR 20:8.4(c)—once for purporting to notarize

his own affidavit and once for making multiple false statements

of fact within that affidavit.                     The referee also found that by

failing      to   notify      his     clients      of    his     temporary    suspension,

Attorney      Hicks     had      violated       SCRs      22.26(1)(a)      and     (b)    and

20:3.4(c).        Similarly, by failing to provide notice to both the

applicable courts and opposing counsel, Attorney Hicks violated

SCRs    22.26(1)(c)        and      20:3.4(c).            Attorney       Hicks'    repeated

appearances in court on behalf of clients during his temporary

suspension        violated     SCRs     22.26(2)         and     20:3.4(c).        Further,

Attorney Hicks' failure to respond to the OLR's inquiries again

violated      SCR     22.03(2)         and    (6),        which    are     enforced        via

SCR 20:8.4(h).

       ¶52    Thus, in total the referee found violations on 3513

separate     counts     involving        12   client       representations.              Three
counts were withdrawn by the OLR.                       On four other counts and on

part of a fifth count, the referee concluded that the OLR had

not satisfied its burden of proof.

       ¶53    The     referee         commented         that     there    were     "several

disturbing        patterns"      in    Attorney         Hicks'    misconduct.        First,


       13
       On one of those counts, the referee did find that
Attorney Hicks had committed only part of the misconduct alleged
by the OLR.


                                              26
                                                                            No.     2014AP7-D



Attorney Hicks failed to engage in the necessary communication

with his clients.         He would often send initial letters advising

them    of   his   appointment,         but     then    would        repeatedly         ignore

letters and telephone calls from those clients, resulting in a

failure to advise the clients of his strategy or to answer their

questions and concerns.            The referee rejected Attorney Hicks'

excuse that he was too busy with jury trials and a high case

load to communicate with his clients.                    While he may indeed have

been forced by economic circumstances to                        carry a large case

load, the referee indicated that he still must comply with his

ethical      obligation     to     share        information          with    and        answer

inquiries from his clients.

       ¶54   The second disturbing pattern noted by the referee was

Attorney Hicks' disregard for his obligation to provide timely

responses to the OLR.            Indeed, the referee noted that Attorney

Hicks     generally     waited     for     his     license       to    be        temporarily

suspended before submitting a response.                    The referee noted that

he asked Attorney Hicks for an explanation as to his failure to
promptly      respond     and     that        Attorney     Hicks        "had       no     good

explanation."

       ¶55   The   third    disturbing           pattern       was    Attorney          Hicks'

repeated     disregard     of    this    court's       rules    regarding          temporary

license      suspensions.         He     blatantly       continued          to     represent

clients and to appear in court as if nothing had changed.                                  He

did not notify his clients, opposing counsel or the courts that

his license had been suspended.


                                           27
                                                                               No.        2014AP7-D



       ¶56    The referee indicated he was at a loss to explain this

conduct      of   Attorney      Hicks,       who    otherwise       appeared         to       be   an

intelligent and competent attorney.                         Nonetheless, the referee

agreed with the OLR that Attorney Hicks' repeated and willful

disregard of his clients, his intentional refusal to respond to

the OLR, his intentional and repeated practice of law after his

license had been suspended, and his repetition of misconduct

that    led     to    the   2012      public       reprimand       warranted         a    lengthy

suspension.          Ultimately, the referee recommended that Attorney

Hicks' license to practice law in Wisconsin be suspended for a

period of two years.

       ¶57    After reviewing this matter and in light of the lack

of any argument from Attorney Hicks to the contrary, we find no

basis    to     conclude       that    the    referee's        findings        of        fact      are

clearly erroneous, and we therefore adopt them.                                     We further

agree    with     the    referee      that     those    detailed         findings         support

legal conclusions that Attorney Hicks engaged in 35 counts of

professional misconduct.
       ¶58    The      issue    then     becomes        what       is    the    appropriate

discipline that is warranted by this misconduct.                               In light of

the pattern of misconduct that Attorney Hicks has exhibited and

his     disregard       for     both     his        vulnerable          clients          and       his

obligations as an officer of the court, we determine that a two-

year suspension of his license is required to impress upon him

the    seriousness       of    his    misconduct.           See     In    re   Disciplinary

Proceedings          Against    Lucius,      2008      WI    12,    307     Wis.         2d     255,
744 N.W.2d 605 (imposing two-year suspension on attorney found
                                               28
                                                                              No.     2014AP7-D



to   have        lacked     diligence        and        failed    to    communicate           in

representing multiple indigent criminal defendants).

     ¶59     We    next    turn     to   the      issue    of    costs.        The    referee

recommended        that    the    court      impose       the    full       costs    of     this

proceeding on Attorney Hicks.                    Our general policy is to do so,

and we see no reason to divert from that policy in this case,

especially where Attorney Hicks has not challenged the OLR's

statement of costs.

     ¶60     Finally, 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).

     ¶61     IT IS ORDERED that the motion filed on behalf of the

Office of Lawyer Regulation to dismiss the notice of appeal

filed by Attorney Michael J. Hicks is denied, but due to the

failure     of    Michael    J.     Hicks    to    file     an    opening      brief,      this

matter    has     been    considered        by    the    court    on    a    summary       basis
without the benefit of briefs.

     ¶62     IT IS FURTHER ORDERED that the license of Michael J.

Hicks to practice law in Wisconsin is suspended for a period of

two years, effective March 18, 2016.

     ¶63     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.


                                             29
                                                        No.    2014AP7-D



    ¶64   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.

    ¶65   IT   IS   FURTHER   ORDERED   that   compliance     with   all

conditions of this order is required for reinstatement.              See

SCR 22.29(4)(c).




                                 30
    No.   2014AP7-D




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