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In re Disciplinary Proceedings Against Hicks

Supreme Court of Wisconsin

February 17, 2016

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

Page 118

Attorney's license suspended.

OPINION

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[366 Wis.2d 514] ATTORNEY disciplinary proceeding.

PER CURIAM.

[¶1] 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 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 [366 Wis.2d 515] 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 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). [366 Wis.2d 516] 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

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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 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.

[366 Wis.2d 517] [¶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 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 [366 Wis.2d 518] 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, we determine

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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 [366 Wis.2d 519] 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.

[¶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 [366 Wis.2d 520] 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 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

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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 [366 Wis.2d 521] 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 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 20:1.3[2] 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 did [366 Wis.2d 522] 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 ...


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