Office of Lawyer Regulation v. Robert W. Horsch

2020 WI 10
SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1775-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Robert W. Horsch, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Robert W. Horsch,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST HORSCH
OPINION FILED: February 7, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
NOT PARTICIPATING:
ATTORNEYS:
2020 WI 10
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1775-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Robert W. Horsch, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, FEB 7, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Robert W. Horsch,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed pursuant to
Supreme Court Rule (SCR) 22.121 by the Office of Lawyer Regulation
1 SCR 22.12 provides:
(1) The director may file with the complaint a
stipulation of the director and the respondent to the
facts, conclusions of law regarding misconduct, and
discipline to be imposed. The supreme court may consider
the complaint and stipulation without the appointment of
a referee, in which case the supreme court may approve
the stipulation, reject the stipulation, or direct the
parties to consider specific modifications to the
stipulation.
No. 2019AP1775-D
(OLR) and Attorney Robert W. Horsch. In the stipulation, Attorney
Horsch admits that he violated SCR 20:8.4(b)2 and agrees that a
three-year suspension of his law license is appropriate.
¶2 After careful review of the matter, we accept the
stipulation. Because Attorney Horsch entered into a comprehensive
stipulation prior to the appointment of a referee, we do not
require him to pay the costs of this proceeding.
¶3 Attorney Horsch was admitted to practice law in
Wisconsin in 2003. His law license has been suspended since June
2, 2014 for failure to comply with continuing legal education
(2) If the supreme court approves a stipulation, it
shall adopt the stipulated facts and conclusions of law
and impose the stipulated discipline.
(3) If the supreme court rejects a stipulation, a
referee shall be appointed and the matter shall proceed
as a complaint filed without a stipulation.
(3m) If the supreme court directs the parties to
consider specific modifications to the stipulation, the
parties may, within 20 days of the date of the order,
file a revised stipulation, in which case the supreme
court may approve the revised stipulation, adopt the
stipulated facts and conclusions of law, and impose the
stipulated discipline. If the parties do not file a
revised stipulation within 20 days of the date of the
order, a referee shall be appointed and the matter shall
proceed as a complaint filed without a stipulation.
(4) A stipulation rejected by the supreme court has
no evidentiary value and is without prejudice to the
respondent's defense of the proceeding or the
prosecution of the complaint.
2 SCR 20:8.4(b) provides: "It is professional misconduct for
a lawyer to commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects."
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No. 2019AP1775-D
requirements, since October 31, 2014 for failure to pay State Bar
of Wisconsin dues and certify trust account information, and since
December 21, 2017 for professional misconduct.
¶4 Attorney Horsch's disciplinary history consists of two
prior matters: (1) a 2015 private reprimand with consent, for
engaging in conduct leading to a criminal conviction in violation
of SCR 20:8.4(b); and practicing law while his license was
suspended in violation of SCR 22.26(2), enforceable via SCR
20:8.4(f). Private Reprimand 2015-5 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002761.html); and (2) a
60-day suspension of his license to practice law in Wisconsin
imposed in 2017 for engaging in conduct leading to a criminal
conviction in violation of SCR 20:8.4(b); failing to report the
conviction to the court and the OLR in violation of SCR 21.15(5),
enforceable via SCR 20:8.4(f); and failing to respond to the OLR's
investigative letters in violation of SCR 22.03(2) and
SCR 22.03(6), enforceable via SCR 20:8.4(h). In re Disciplinary
Proceedings Against Horsch, 2017 WI 105, 378 Wis. 2d 554, 905
N.W.2d 129.
¶5 The actions giving rise to this misconduct proceeding
occurred on May 1, 2018. Attorney Horsch was driving with five of
his children as passengers. He did not secure his two youngest
children into their car seats. The two children, 22 months and
three years old, fell out of the rear doors of the moving van and
were injured, one seriously. Attorney Horsch continued to drive,
unaware the children had fallen from the van. Other motorists
witnessed the incident and rescued the two children from the
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No. 2019AP1775-D
roadway. The children were transported to a hospital, treated,
and identified. Police then went to Attorney Horsch's residence
to speak with him.
¶6 The responding officer suspected that Attorney Horsch
was under the influence of a non-alcoholic intoxicant. Attorney
Horsch refused to perform field sobriety tests but submitted to a
breathalyzer test. A warrant was obtained, a blood test performed,
and the results showed an exceedingly high level of
dextromethorphan, a controlled substance commonly found in cough
medicine.
¶7 On September 10, 2018, Attorney Horsch was charged with
eight felonies, including neglecting a child resulting in great
bodily harm, neglecting a child resulting in harm, knowingly
operating a motor vehicle while revoked resulting in great bodily
harm and five counts of operating while intoxicated (OWI) for a
5th or 6th offense with a passenger under the age of 16. State v.
Horsch, Sheboygan County Circuit Court, No. 2018CF289.
¶8 On February 5, 2019, he pled guilty to and was convicted
of one felony count of neglect of a child resulting in great bodily
harm, and one felony count of operating a motor vehicle while
intoxicated (5th or 6th offense) with a passenger under the age of
16. Two charges (child neglect causing bodily harm and operating
while revoked) were dismissed but read in. The four remaining
charges were dismissed. Attorney Horsch was sentenced to three
years and six months prison, and five years of extended
supervision.
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No. 2019AP1775-D
¶9 On September 19, 2019, the OLR filed a disciplinary
complaint alleging that by engaging in the conduct leading to the
two felony convictions, Attorney Horsch violated SCR 20:8.4(b).
Supreme Court Rule 20:8.4(b) provides that it "is professional
misconduct for a lawyer to commit a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness or fitness as
a lawyer in other respects."
¶10 Attorney Horsch stipulated to the factual allegations in
the OLR's complaint, to the alleged misconduct, and to a three-
year suspension of his law license. The stipulation states that
it did not result from plea-bargaining. In the stipulation
Attorney Horsch states that he fully understands the misconduct
allegations; that he fully understands the ramifications should
the court impose the stipulated level of discipline; that he fully
understands his right to contest this matter; that he fully
understands his right to consult with counsel; that his entry into
this stipulation is made knowingly and voluntarily; that he has
read the complaint and the stipulation; and that his entry into
the stipulation represents his decision not to contest the
misconduct alleged in the complaint or the level and type of
discipline sought by the OLR's Director. Attorney Horsch notes
that he is incarcerated and is indigent and asks the court to waive
the costs of this proceeding.
¶11 We consider this stipulation without the appointment of
a referee. SCR 22.12. We first consider whether the felony
conviction constitutes a violation of SCR 20:8.4(b). The question
is whether the criminal act committed by Attorney Horsch reflects
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No. 2019AP1775-D
adversely on his honesty, trustworthiness, or his "fitness as a
lawyer in other respects." This is a fact dependent inquiry.
Indeed, in one instance we determined that a lawyer's felony
conviction for a deadly one-vehicle drunk driving accident did not
violate SCR 20:8.4(b). In re Disciplinary Proceeding Against
Johns, 2014 WI 32, 353 Wis. 2d 746, 847 N.W.2d 179 (holding that
lawyer's conduct did not violate SCR 20:8.4(b) in light of the
record evidence indicating the exceedingly anomalous nature of the
tragic incident with respect to Attorney Johns' overall conduct).
¶12 By contrast, this was not Attorney Horsch's first
criminal or disciplinary offense. A pattern of convictions
"evinces a serious lack of respect for the law and as such
relate[s] to [a lawyer's] 'fitness as a lawyer in other respects.'"
In re Disciplinary Proceedings Against Brandt, 2009 WI 43, ¶42,
317 Wis. 2d 266, 766 N.W.2d 194 (discussing a lawyer's multiple
OWI convictions). We agree that Attorney Horsch's commission of
the criminal act in this instance violated SCR 20:8.4(b).
¶13 The next question is the appropriate sanction for the
admitted misconduct. In support of the three-year suspension to
which the parties stipulated, the OLR emphasizes that Attorney
Horsch's misconduct was intentional, and that he has been convicted
four times previously for operating a vehicle while intoxicated.
The OLR cites several disciplinary cases in support of the three-
year suspension, including In re Disciplinary Proceedings Against
Evenson, 2015 WI 38, 361 Wis. 2d 629, 861 N.W.2d 786 (imposing 30-
month license suspension based on conviction for one felony count
of delivery of a controlled substance and two misdemeanor
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No. 2019AP1775-D
convictions for fourth-degree sexual assault, where the lawyer had
one prior public reprimand); In re Disciplinary Proceedings
Against Moore, 2013 WI 96, 351 Wis. 2d 332, 839 N.W.2d 605
(imposing three-year license suspension for mishandling of a
guardianship matter, and lawyer's conviction of misdemeanor
possession of a controlled substance (THC) and drug paraphernalia
where the lawyer had no prior disciplinary history); In re
Disciplinary Proceedings Against Woodmansee, 147 Wis. 2d 837, 434
N.W.2d 94 (1989) (imposing three-year license suspension for
conviction for fourth-degree sexual assault of a client where
lawyer had no prior disciplinary history); and In re Disciplinary
Proceedings Against Stokes, 2012 WI 105, 343 Wis. 2d 561, 818
N.W.2d 924 (revoking law license for conviction of one count of
felony theft for overbilling the State Public Defender's office of
over $19,000 in fees where lawyer had two prior reprimands).
¶14 We have some concerns that the three-year suspension to
which the parties stipulated is overly long, even considering that
the discipline imposed in lawyer misconduct cases is generally
progressive. See, e.g., In re Disciplinary Proceedings Against
Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d 501.
While the cases cited by the OLR bear some resemblance to this
case, each also involves some conduct that is quite distinct from
what occurred here. This is not a case in which the attorney
abused his professional status as a lawyer in committing a criminal
act. Attorney Horsch violated no practice norms, harmed no
clients, and did not benefit from his misconduct. He has been
arrested, convicted, sentenced, and is incarcerated for his
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No. 2019AP1775-D
actions. The OLR does not cite to the Johns case, which has some
parallels: both involved a lawyer driving under the influence,
with family in the vehicle, and with a tragic result. No
suspension was imposed in that case. Johns, 353 Wis. 2d 746. We
also find instructive In re Disciplinary Proceedings Against
Brandt, 2012 WI 8, 338 Wis. 2d 524, 808 N.W.2d 687, where we
imposed a four-month suspension on Attorney Brandt, consistent
with the parties' stipulation, after he received a felony
conviction in Minnesota of first-degree driving while intoxicated
within ten years of the first of three or more qualified prior
impaired driving incidents.
¶15 However, we recognize that the three-year suspension to
which the parties stipulated correlates roughly with the prison
sentence imposed on Attorney Horsch. A lengthy suspension is
appropriate to ensure that Attorney Horsch is precluded from
practicing law while incarcerated for a criminal conviction. See,
e.g., In re Paine, 625 S.E.2d 768 (Ga. 2006) (suspending attorney
from the practice of law until his probation on a felony conviction
is terminated). So, despite our concern that a three-year
suspension is excessive given the nature of the admitted
misconduct, we accept the parties' stipulation.
¶16 Considering all of the above, we accept the stipulation,
adopt the stipulated facts and conclusions of law, and we suspend
Attorney Horsch's law license for a period of three years. Because
this matter has been resolved by stipulation without the
appointment of a referee and the OLR has not sought the imposition
of any costs, we impose no costs. Therefore,
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No. 2019AP1775-D
¶17 IT IS ORDERED that the license of Robert W. Horsch to
practice law in Wisconsin is suspended for a period of three years,
effective the date of this order.
¶18 IT IS FURTHER ORDERED that if he has not already done
so, Robert W. Horsch shall comply with the provisions of SCR 22.26
regarding the duties of a person whose license to practice law in
Wisconsin has been suspended.
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No. 2019AP1775-D
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