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In re Hicks

Supreme Court of Wisconsin

April 29, 2016

In the Matter of Disciplinary Proceedings Against Michael J. Hicks, Attorney at Law: Office of Lawyer Regulation, Complainant,
Michael J. Hicks, Respondent

          Attorney's license suspended.


         [368 Wis.2d 109] ATTORNEY disciplinary proceeding.

          PER CURIAM

          [¶1] We review the report of the referee, Attorney James J. Winiarski. Based on the change of Attorney Michael J. Hicks' answer to a no contest plea pursuant to SCR 22.14(2), the referee concluded that Attorney Hicks had committed each of the 19 counts of professional misconduct alleged in the complaint filed by the Office of Lawyer Regulation (OLR). Referee Winiarski recommends that the court suspend the license of Attorney Michael J. Hicks for a period of one year consecutive to the two-year suspension imposed in Case No. 2014AP7-D, In re Disciplinary Proceedings Against Hicks, 2016 WI 9, 366 Wis.2d 512, 875 N.W.2d 117 (Hicks II), and that the court [368 Wis.2d 110] order Attorney Hicks to pay the full costs of this disciplinary proceeding, which were $2,717.14 as of October 14, 2015.

          [¶2] Because no appeal from the referee's report has been filed, we proceed with our review of this matter pursuant to SCR 22.17(2).[1]

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After completing our review, we agree with the referee that the allegations of the OLR's complaint, which Attorney Hicks now does not contest, establish that he committed 19 counts of professional misconduct. While many of the acts that form the basis for this complaint also occurred during the time span at issue in Hicks II, we further agree that Attorney Hicks' license should be suspended for an additional period of one year, subsequent to the suspension imposed in Hicks II. We do not impose any restitution obligation on Attorney Hicks, but we do require him to pay the full costs of this disciplinary proceeding.

          [¶3] Attorney Hicks was admitted to the practice of law in this state in June 1984. He most recently practiced in West Allis.

          [¶4] Attorney Hicks has been the subject of professional discipline on two previous occasions. In 2012 this court publicly reprimanded him based on his stipulation that he had committed nine counts of professional misconduct arising out of three client representations. In re Disciplinary Proceedings Against Hicks, 2012 WI 11, 338 Wis.2d 558, 809 N.W.2d [368 Wis.2d 111] 33 (Hicks I). For each representation, Attorney Hicks stipulated that he had failed to act with reasonable diligence or promptness, in violation of Supreme Court Rule (SCR) 20:1.3, that he had failed to communicate adequately with the client, in violation of SCR 20:1.4(a)(2), (3) and (4) and SCR 20:1.4(b), and that he had failed to provide a timely response to the grievance filed with the OLR, in violation of SCR 22.03(2) and (6), which are enforced via SCR 20:8.4(h).

          [¶5] In February 2016 this court suspended Attorney Hicks' license to practice law in Wisconsin for a period of two years, effective March 18, 2016. Hicks II, 366 Wis.2d 512, ¶ 62. In that proceeding, Attorney Hicks was again found to have committed four counts of failing to act with reasonable diligence or promptness, five counts of failing to communicate adequately with his clients, and 12 counts of failing to submit timely written responses to OLR grievance investigations. In addition, he was found to have failed on multiple occasions to notify his clients, opposing counsel, or the relevant courts of the two temporary suspensions of his license. Indeed, Attorney Hicks was found to have appeared in court on at least 12 occasions despite the temporary suspensions of his license. He also was found to have submitted false affidavits to the OLR regarding his compliance with rules regarding his temporary suspensions. The general time frame for the actions underlying these violations was from mid-2011 through 2013.

          [¶6] The OLR commenced this disciplinary proceeding by filing a complaint alleging 19 counts of professional misconduct. Attorney Hicks initially filed an answer in which he denied 53 out of 72 numbered paragraphs of the OLR's complaint and all of the allegations of professional misconduct. He alleged as [368 Wis.2d 112] affirmative defenses that he had experienced symptoms from significant health problems in 2012 and 2013 and that he had also experienced a heavy caseload from late 2011 through early 2013, including a substantial number of cases where he was successor counsel to one or more prior attorneys and had difficulties establishing and continuing attorney/client

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relationships and in defending the clients against pending criminal charges.

          [¶7] Attorney Hicks subsequently withdrew his answer and filed a written plea of no contest to all of the counts alleged in the OLR's complaint. He agreed that the referee could use the facts stated in the complaint as a basis to determine violations of the Rules of Professional Conduct for Attorneys.

          [¶8] In Hicks II we described the general pattern of Attorney Hicks' misconduct. Hicks II, 366 Wis.2d 512, ¶ 12. Attorney Hicks focused his practice primarily on representing indigent defendants in criminal cases through appointments either by the Office of the State Public Defender (SPD) or the court in which the case was pending. After acknowledging the appointment, Attorney Hicks often ignored his clients' requests for information for substantial periods of time and often failed to follow through on necessary actions for the clients' defense. When a grievance was subsequently filed with the OLR, Attorney Hicks either failed to provide any initial response to the OLR or he failed to respond to the OLR's requests for further information.

          [¶9] At two separate points in time this court temporarily suspended Attorney Hicks' license due to his willful failure to cooperate with the OLR's grievance investigations. See Hicks II, 366 Wis.2d 512, [368 Wis.2d 113] ¶ ¶ 13-14. The first such suspension ran from September 27, 2012, through October 16, 2012. The second temporary suspension ran from February 12, 2013, through March 11, 2013. In each case, after the temporary suspension had been imposed, Attorney Hicks began to cooperate with the OLR and to provide the information and documents the OLR had requested. The OLR then informed the court of Attorney Hicks' cooperation and requested the reinstatement of Attorney Hicks' license to practice law in Wisconsin, which this court granted.

          [¶10] The first seven counts in this proceeding relate to Attorney Hicks' representation of client R.A. in two criminal cases. During these representations, Attorney Hicks' license was temporarily suspended twice, as discussed above. Attorney Hicks failed to notify R.A., the court, or opposing counsel of either of the temporary suspensions.

          [¶11] In one of the cases, Attorney Hicks filed a motion on R.A.'s behalf in September 2012 to withdraw his pleas. The court held an evidentiary hearing on the motion on December 19, 2012. At the conclusion of that hearing, in response to a question from the court, Attorney Hicks responded that he wanted to submit argument on the motion in writing. The court then established a briefing schedule. Attorney Hicks, however, did not file a post-hearing brief on R.A.'s behalf, nor did he inform the court that he would not be doing so. Thus, Attorney Hicks did not make any argument on the motion, either orally or in writing, after the evidentiary hearing. When no brief was filed on R.A.'s behalf, the state eventually filed its own written argument.

          [¶12] In a series of letters R.A. sent to Attorney Hicks in December 2012 and January 2013, R.A. asked Attorney Hicks about matters concerning the expected [368 Wis.2d 114] post-hearing brief. He also expressed concern that Attorney Hicks had not been in contact with him since the December 19, 2012 evidentiary hearing and that he had failed to respond to either R.A.'s letters or his parents' efforts to prod Attorney Hicks to communicate with R.A. Attorney Hicks did not respond to R.A.'s letters except to provide certain documents to R.A. without any substantive comment. Attorney Hicks did not disclose to R.A. that he had decided

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not to file a post-hearing brief on the motion.

          [¶13] The circuit court had scheduled a conference for February 8, 2013, at which it expected to issue its ruling on R.A.'s motion. According to electronic docket records, Attorney Hicks did appear on that date, but he did not arrange for R.A. to appear. The court noted that Attorney Hicks had not filed a brief or advised the court that he would not be doing so. The court adjourned the matter until February 26, 2013, and ordered that R.A. be produced in court on that date. It also ordered Attorney Hicks to advise R.A. of the reason why the court had not issued its decision on his motion on that date. Attorney Hicks did send a letter to R.A. advising him of the new date for the court's decision, but did not inform him that Attorney Hicks had decided not to file a post-hearing brief on R.A.'s behalf.

          [¶14] On February 26, 2013, although he was subject to the second temporary suspension of his license, Attorney Hicks appeared in court for what was scheduled to be the issuance of the court's oral ruling on R.A.'s motion to withdraw his pleas. Because of a communication error, R.A. was not produced for that court date. The matter was therefore continued until April 5, 2013.

          [¶15] R.A. again sent a letter to Attorney Hicks expressing concern at Attorney Hicks' failure to respond [368 Wis.2d 115] to his letters or to the efforts of his family members to spur communication. Attorney Hicks did not respond and still did not advise R.A. that he had decided not to file any post-hearing brief in support of R.A.'s motion.

          [¶16] Prior to the April 5, 2013 appearance, R.A. wrote to the circuit court and asked for the appointment of new counsel. The court allowed Attorney Hicks to withdraw on that date so that the SPD could appoint new counsel for R.A. The court ruled that successor counsel would be allowed to file a written argument in support of R.A.'s motion to withdraw his pleas.

          [¶17] In March 2013 R.A. filed a grievance against Attorney Hicks with the OLR. In April 2013 and again in December 2013, the OLR asked Attorney Hicks for a response to R.A.'s grievance, but Attorney Hicks did not respond. Only after the OLR had filed yet another motion for a temporary suspension and this court had issued an order to show cause did Attorney Hicks finally submit a written response to R.A.'s grievance and provide requested documents to the OLR.

          [¶18] The referee concluded that the allegations in the OLR's complaint concerning R.A. adequately supported the following seven counts of professional misconduct:

[Count One] By requesting to argue [R.A.'s] motion to withdraw his plea in writing following the evidentiary phase of the hearing on the motion, and then failing to file any written (or oral) argument, [Attorney] Hicks violated SCR 20:1.3. [368 Wis.2d 116] [2]
[Count Two] By failing to respond to [R.A.'s] repeated requests for information, [Attorney] Hicks violated SCR 20:1.4(a)(4).[3]
[Count Three] By failing to provide [R.A.] with a copy of the State's written argument brief and to promptly advise [R.A.] of [Attorney] Hicks' decision not to file a post-hearing argument brief,

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[Attorney] Hicks violated SCR 20:1.4(a)(2) and ...

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