In re Petition for Disciplinary Action against Tracy R. Eichhorn-Hicks, a Minnesota Attorney, Registration No. 0026128.
Original Jurisdiction Office of Appellate Courts
M. Humiston, Director, Timothy M. Burke, Deputy Director,
Jennifer S. Bovitz, Senior Assistant Director, Office of
Lawyers Professional Responsibility, Saint Paul, Minnesota,
F. Kautzer, Ruvelson & Kautzer, Ltd., Roseville,
Minnesota; and Joshua S. Casper, Casper Law, P.L.L.C.,
Roseville, Minnesota, for respondent attorney.
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).
Based on the circumstances of this case, the appropriate
discipline is an indefinite suspension with no right to
petition for reinstatement for 120 days.
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.
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.
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.
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.
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.
was charged with two felonies related to the sale and
possession of controlled substances. 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). Eichhorn-Hicks does not dispute the
referee's factual findings or conclusions of law with
respect to the fee agreement.
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
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.
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.
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
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.
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.,
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 ...