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In re Petition for Disciplinary Action Against Eichhorn-Hicks

Supreme Court of Minnesota

July 25, 2018

In re Petition for Disciplinary Action against Tracy R. Eichhorn-Hicks, a Minnesota Attorney, Registration No. 0026128.

          Original Jurisdiction Office of Appellate Courts

          Susan M. Humiston, Director, Timothy M. Burke, Deputy Director, Jennifer S. Bovitz, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

          Edward F. Kautzer, Ruvelson & Kautzer, Ltd., Roseville, Minnesota; and Joshua S. Casper, Casper Law, P.L.L.C., Roseville, Minnesota, for respondent attorney.

         SYLLABUS

         1. The referee did not clearly err when he found (1) that respondent failed to communicate a plea offer to a client, in violation of Minn. R. Prof. Conduct 1.1, 1.2(a), 1.3, and 1.4(a)(1)-(3); and (2) that respondent signed his client's name on a medical-records release form, falsely claimed to have witnessed the client's signature, and then presented the signed release to a third party, in violation of Minn. R. Prof. Conduct 8.4(c)-(d).

         2. Based on the circumstances of this case, the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for 120 days.

          OPINION

          PER CURIAM.

         The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Tracy R. Eichhorn-Hicks. After an evidentiary hearing, the referee concluded that Eichhorn-Hicks committed professional misconduct by (1) not stating in a written fee agreement that the fee could be subject to a refund; (2) failing to communicate a plea agreement to a client; and (3) signing his client's name on a medical-records release form, falsely signing as a witness to his client's signature, and then presenting the signed release to a third party. The referee recommended that we suspend Eichhorn-Hicks for a minimum of 60 days, require Eichhorn-Hicks to petition for reinstatement under Rule 18(a)-(d), Rules on Lawyers Professional Responsibility (RLPR), and place Eichhorn-Hicks on probation for 1 year if he is reinstated.

         Eichhorn-Hicks challenges the referee's findings and conclusions concerning the communication of the plea agreement and the medical-records release form, and he argues that he should not have to petition for reinstatement. The Director urges us to adopt the referee's recommendations as to discipline.

         We hold that the referee did not clearly err when he found that Eichhorn-Hicks (1) had failed to communicate a plea agreement to a client, in violation of Minn. R. Prof. Conduct 1.1, 1.2(a), 1.3, and 1.4(a)(1)-(3); and (2) that Eichhorn-Hicks signed his client's name on a medical-records release form, falsely claimed to have witnessed the client's signature, and then presented the signed release to a third party, in violation of Minn. R. Prof. Conduct 8.4(c)-(d). We further hold that, based on the circumstances of this case, the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for 120 days.

         FACTS

         Respondent Tracy R. Eichhorn-Hicks was admitted to practice law on September 26, 1975, and has practiced predominantly criminal law for most of his career. Eichhorn-Hicks has been disciplined on eight prior occasions for similar, but unrelated, misconduct. He has received four admonitions-in 1994, 2004, and twice in 2005-for violating rules related to trust accounts, diligence, and communication with clients. He has also been placed on private probation twice; publicly reprimanded and placed on probation once, see In re Eichhorn-Hicks (Eichhorn-Hicks I), 767 N.W.2d 20, 21 (Minn. 2009) (order); and suspended from the practice of law for 1 year for violating rules related to trust accounts, temporarily misappropriating funds, and committing other misconduct involving false certification and false statements, see In re Eichhorn-Hicks (Eichhorn-Hicks II), 615 N.W.2d 356, 357 (Minn. 2000) (order).

         This disciplinary action concerns professional misconduct that occurred in three client matters between 2014 and 2016. We summarize the referee's findings of fact and conclusions of law below.

         A.

         F.F.-V. was charged with two felonies related to the sale and possession of controlled substances.[1] F.F.-V. fired his first attorney over a fee dispute. Eichhorn-Hicks agreed to represent F.F.-V. for a flat fee of $10, 000. The written retainer agreement did not include an explanation that the flat fee was subject to a refund under certain circumstances. The referee concluded that this omission violated Minn. R. Prof. Conduct 1.5(b).[2] Eichhorn-Hicks does not dispute the referee's factual findings or conclusions of law with respect to the fee agreement.[3]

         B.

         Eichhorn-Hicks represented C.S.-A. in a criminal case. C.S.-A. is a native of Ghana and became a lawful permanent resident of the United States in 2006. He is married to another lawful permanent resident and has four children, three of whom are United States citizens. C.S.-A. was the chief executive officer of a home health care services company that received reimbursements from the Minnesota Department of Human Services.

         In June 2013, C.S.-A. was charged with four felony counts of medical-assistance fraud for submitting false reimbursement claims. While represented by previous counsel, C.S.-A. accepted the prosecution's offer to plead guilty to two counts of theft to "limit the immigration consequences." At the plea hearing, C.S.-A.'s previous counsel and the court questioned C.S.-A. extensively about the potential immigration consequences of a guilty plea. C.S.-A. expressed his understanding that there were no guarantees regarding immigration consequences.

         After pleading guilty in 2014, C.S.-A. retained Eichhorn-Hicks, seeking to withdraw his plea. At a hearing that followed, the court set aside C.S.-A.'s guilty plea and remarked that the plea was "perhaps too generous" and that the court would not consider the deal again.

         C.S.-A. e-mailed Eichhorn-Hicks that he was still interested in a plea agreement because of the emotional and financial toll of the case. C.S.-A. wanted a deal with no jail time, restitution of $18, 000, and that did not "affect [his] immigration status." The prosecution offered a plea requiring C.S.-A. to plead guilty to one count of theft in exchange for a sentence of 60 days of jail time (stayed), 2 years of probation, and restitution of $9, 999. The prosecution e-mailed and mailed a written offer of that plea to Eichhorn-Hicks.

         Eichhorn-Hicks admitted never providing the written plea offer to C.S.-A. C.S.-A. claimed that Eichhorn-Hicks never told him about this plea offer. He testified that he did not learn of the offer until he picked up a copy of his case file after Eichhorn-Hicks's representation was over. C.S.-A. testified that he was "shocked" that Eichhorn-Hicks failed to advise him of the prosecution's offer and that he would have taken the offer.

         In response to C.S.-A.'s complaint, Eichhorn-Hicks told the Director that he had discussed the plea offer with C.S.-A. but did not specifically identify a date when this occurred. Eichhorn-Hicks explained that C.S.-A. was "not interested in entering into a plea negotiation" and "wished definitely to go to trial." C.S.-A., however, e-mailed

         Eichhorn-Hicks that any plea offer would need to include "nothing on [his] records because of [his] other businesses" and "[n]o publication of [his] case to any site." C.S.-A. asked Eichhorn-Hicks to negotiate with the prosecution regarding "the deal," which referred to the original deal that C.S.-A. had accepted. C.S.-A testified that he was interested in a plea ...


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