2017 WI 105
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1928-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: December 21, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ABRAHAMSON, J. concurs and dissents (opinion
filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 105
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1928-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,
DEC 21, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
Robert W. Horsch,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of Referee Richard M. Esenberg that Attorney Robert W. Horsch be
publicly reprimanded for professional misconduct and that he pay
the full costs of this proceeding, which are $1,797.03 as of
February 7, 2017. The Office of Lawyer Regulation (OLR) asked
that, in addition to the public reprimand, the court impose
various conditions on Attorney Horsch. The referee recommended
that implementation of the conditions be suspended for a period
No. 2015AP1928-D
of 90 days following this court's order imposing discipline.
The referee made this recommendation because it appeared that
Attorney Horsch wanted to voluntarily resign from the practice
of law. The referee recommended that if, during the 90-day
period, Attorney Horsch voluntarily resigned from the State Bar,
the conditions would not need to be implemented.
¶2 We conclude that Attorney Horsch's felony conviction
for fourth offense operating while intoxicated (OWI) warrants a
60-day suspension of his license to practice law rather than a
public reprimand. Attorney Horsch has now indicated that he
does not want to resign from the practice of law. However, his
license is currently administratively suspended so he is not
practicing law. Under the circumstances, we deem it appropriate
to order that the conditions proposed by the OLR would take
effect in the event Attorney Horsch ever resumes the active
practice of law. We also deem it appropriate, as is our custom,
to impose the full costs of this proceeding against Attorney
Horsch.
¶3 Attorney Horsch was admitted to practice law in
Wisconsin in 2003. His Wisconsin law license has been suspended
since 2013 for failure to pay State Bar dues, noncompliance with
continuing legal education (CLE) requirements, and failure to
submit the required trust account certification to the State
Bar. Attorney Horsch's prior disciplinary history consists of a
private reprimand imposed for a criminal conviction for OWI,
third offense, and practicing law while his license was
suspended. Private Reprimand No. 2015-5 (electronic copy
2
No. 2015AP1928-D
available at
https://compendium.wicourts.gov/app/raw/002761.html).
¶4 On September 21, 2015, the OLR filed a complaint
alleging that Attorney Horsch had committed three counts of
misconduct. The complaint alleged that on the evening of
September 28, 2014, a citizen called to report a person passed
out in a vehicle in the middle of the road. Sheboygan police
responded and found Attorney Horsch leaned over in the driver's
seat of his vehicle, sleeping. An officer woke Attorney Horsch
and noted that he did not seem to know where he was. Attorney
Horsch said he was tired and that he was not safe to drive. He
had consumed alcohol.
¶5 Because of his three prior OWI convictions, Attorney
Horsch was not to operate a motor vehicle with an alcohol
concentration greater than 0.02 percent. An analyst from the
State Lab of Hygiene subsequently tested a sample of Attorney
Horsch's blood taken in connection with the September 28, 2014
incident and reported that Attorney Horsch's blood alcohol level
was 0.24 percent.
¶6 As of September 28, 2014, Attorney Horsch's driving
privileges had been revoked. He had an occupational license,
but he was operating outside of his approved hours when the
officer found him.
¶7 On April 23, 2015, Attorney Horsch appeared before
Judge Bourke in Sheboygan County circuit court and entered no
contest pleas to fourth offense OWI, a Class H felony, and
operating while revoked, an unclassified misdemeanor. Judge
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No. 2015AP1928-D
Bourke found Attorney Horsch guilty of both offenses and
sentenced him to serve eight months in jail with Huber release
for work and child care, plus fines and court costs, a 36-month
revocation of his license to drive, and other conditions.
Attorney Horsch never reported his convictions to the OLR or to
the clerk of this court.
¶8 On January 7 and February 10, 2015, the OLR sent
letters to Attorney Horsch seeking information about the case
and advising him of his duty to cooperate with the OLR's
investigation under SCRs 21.15(4), 22.03(6) and other applicable
Supreme Court Rules. Attorney Horsch never responded to either
letter.
¶9 The OLR's complaint alleged the following counts of
misconduct:
Count One: By engaging in conduct leading to his
conviction for the felony offense of OWI 4th and a
misdemeanor conviction for Operating While Revoked,
Attorney Horsch violated SCR 20:8.4(b).1
Count Two: By failing to report his conviction for
the felony offense of OWI 4th and his misdemeanor
conviction for Operating While Revoked to the OLR and
the Clerk of the Supreme Court of Wisconsin, Attorney
Horsch violated SCR 21:15(5)2 and SCR 20:8.4(f).3
1
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."
2
SCR 21.15(5) provides:
An attorney found guilty or convicted of any
crime on or after July 1, 2002, shall notify in
writing the office of lawyer regulation and the clerk
(continued)
4
No. 2015AP1928-D
Count Three: By failing to respond to the OLR's
investigative letters of January 7 and February 10,
2015, Attorney Horsch violated SCR 22.03(2)4 and
SCR 22.03(6).5
of the Supreme Court within 5 days after the finding
or conviction, whichever first occurs. The notice
shall include the identity of the attorney, the date
of finding or conviction, the offenses, and the
jurisdiction. An attorney's failure to notify the
office of lawyer regulation and the clerk of the
supreme court of being found guilty of his or her
conviction is misconduct.
3
SCR 20:8.4(f) provides: "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
4
SCR 22.03(2) provides:
Upon commencing an investigation, the director
shall notify the respondent of the matter being
investigated unless in the opinion of the director the
investigation of the matter requires otherwise. The
respondent shall fully and fairly disclose all facts
and circumstances pertaining to the alleged misconduct
within 20 days after being served by ordinary mail
request for a written response. The director may
allow additional time to respond. Following receipt
of the response, the director may conduct further
investigation and may compel the respondent to answer
questions, furnish documents, and present any
information deemed relevant to the investigation.
5
SCR 22.03(6) provides: "In the course of the
investigation, the respondent's willful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."
5
No. 2015AP1928-D
The OLR asked that this court publicly reprimand Attorney
Horsch. It also asked that the court impose the following
conditions:
Within 60 days of the Court's final order,
Attorney Horsch must provide to the OLR signed
medical releases of confidentiality for each
treatment provider who has provided or is
providing alcohol-related or substance abuse-
related treatment, assessment or services to
Attorney Horsch during the past five years, so
that the OLR and each provider can share
pertinent information related to Attorney Horsch,
such releases to remain in effect for two years
from the date Attorney Horsch signs the releases;
Within 60 days of the Court's final order,
Attorney Horsch must, at his own expense,
participate in an alcohol and other drug abuse
(AODA) and mental health assessment by a person
of the OLR's choosing, which shall make specific
written recommendations, if appropriate, for
Attorney Horsch's treatment or maintenance. The
assessment must be provided to the OLR;
Attorney Horsch must submit to monitoring within
30 days of the date of the assessment, as
directed by the OLR; and for a period of two
years beginning on the date of his entry into a
monitoring program must comply with all
monitoring requirements, including all
requirements determined to be appropriate by the
Wisconsin Lawyers' Assistance Program (WisLAP) or
the OLR's designated monitor;
Attorney Horsch must refrain from the consumption
of alcohol and any mood-altering drugs without a
valid prescription while subject to monitoring.
¶10 Attorney Horsch filed an answer on November 23, 2015.
He admitted receiving the letters sent by the OLR and further
admitted that he did not report his convictions to either the
OLR or the clerk of this court. He said he did not believe he
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No. 2015AP1928-D
was required to report the convictions or respond to the OLR
because he is not a lawyer since his license to practice law was
administratively suspended in 2013.
¶11 The referee was appointed on January 5, 2016. Both
Attorney Horsch and the OLR moved for summary judgment. The OLR
claimed it was entitled to summary judgment because Attorney
Horsch did not deny committing the alleged violations. Attorney
Horsch argued the case should be dismissed because he no longer
practices law, is currently administratively suspended from
practice, and does not intend to ever practice again. Attorney
Horsch continued to argue that he was not an attorney and is no
longer subject to the supreme court rules governing the conduct
of attorneys. Accordingly, Attorney Horsch claimed that the OLR
has no jurisdiction over him.
¶12 The referee issued his report and recommendation on
January 20, 2017. The referee rejected Attorney Horsch's claim
that because he is already administratively suspended, he is not
an attorney and is not subject to discipline. The referee
pointed out that SCR 21.15(1) provides that an attorney
"admitted to practice law or practicing law in Wisconsin is
subject to the lawyer regulation system . . .." The referee
also noted that SCR 10.03(7), which governs voluntary
resignation from the bar, requires an attorney to make a request
for resignation and provides that such a resignation is not
accepted until this court determines if the attorney seeking
resignation is subject to any pending grievances,
investigations, or proceedings. The referee opined that
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No. 2015AP1928-D
voluntary resignation would not be subject to regulation or
procedural requisites if it could be accomplished by simply
ceasing to practice law.
¶13 The referee went on to say the conclusion that
Attorney Horsch is not yet free of the regulatory system is also
supported by SCR 10.03(3)(1), which provides that membership in
the state bar consists of all persons licensed to practice law
in the state. The referee said Attorney Horsch is one of those
persons, even though his license has been suspended for failure
to pay dues and fulfill CLE requirements.
¶14 Attorney Horsch argued that this court should not care
about a person who is not practicing law. The OLR countered
that, if Attorney Horsch is correct, a lawyer could evade
responsibility for planned misconduct by strategically
orchestrating his or her suspension. The referee noted that a
lawyer who "resigns" by inactivity and suspension for failure to
pay dues and earn CLE credits can easily "un-resign" by paying
back dues and earning the necessary credits. The referee said,
"If inactivity and suspension blocks discipline, such a lawyer
will be returned to practice without facing professional
discipline for his or her past misconduct."
¶15 The referee went on to say, "Unlike a lawyer who is
seeking to become licensed for the first time, there would be no
examination of the character and fitness of someone who simply
catches up on her bar dues and CLE credits. Yet the public
ought to be protected from those attorneys whose conduct during
a period of inactivity calls their character and fitness into
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No. 2015AP1928-D
question." The referee also said, "Criminal conduct or a
decision to drive under the influence or addiction to drug or
alcohol, for example, is not irrelevant because an attorney was
not actively practicing at the time."
¶16 The referee further noted that this court has
routinely exercised jurisdiction over attorneys, like Attorney
Horsch, who have been suspended. The referee said, "[ ]Horsch
holds the key that will release him from 'imprisonment' within
the bar in his own hands. All he has to do is comply with the
legal requirements to resign from the bar." The referee said if
Attorney Horsch voluntarily resigns from the bar and later seeks
readmission, this court will be able to demand whatever proof it
deems necessary to protect the public. Accordingly, the referee
recommended that this court publicly reprimand Attorney Horsch
for the three counts of misconduct alleged in the OLR's
complaint. The referee further recommended that the
implementation of the conditions requested by the OLR be
suspended for 90 days and if, during that period of time,
Attorney Horsch voluntarily resigns from the Bar, then the
conditions need not be implemented and if, at any time during
the pendency of the conditions Attorney Horsch resigns from the
bar, the conditions need not be continued.
¶17 On May 15, 2017, this court issued an order directing
Attorney Horsch that, if he wished to resign his membership in
the State Bar of Wisconsin, he should file a petition to
voluntarily surrender his Wisconsin law license. Attorney
Horsch was informed that this court's consideration of the
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No. 2015AP1928-D
pending disciplinary matter would be held in abeyance for 20
days and in the event he filed a petition to voluntarily
surrender his license within that time, his request for a
voluntarily resignation from the State Bar would be considered
along with the pending disciplinary proceeding. Attorney Horsch
was informed that if he did not file a petition to voluntarily
surrender his license to practice law within that time, this
court would proceed with its review of Referee Esenberg's report
and recommendation.
¶18 On June 7, 2017, Attorney Horsch filed a response to
this court's May 15, 2017 order saying that he does not want to
voluntarily resign his membership in the State Bar of Wisconsin.
Rather, he requests to change his status with the State Bar from
active to inactive.6 In light of Attorney Horsch's response, the
referee's report and recommendation is now ripe for review.
¶19 This court will adopt a referee's findings of fact
unless they are clearly erroneous. Conclusions of law are
reviewed de novo. See In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. The
court may impose whatever sanction it sees fit, regardless of
the referee's recommendation. See In re Disciplinary
6
SCR 10.03(3) provides: " . . . The class of inactive
members includes those persons who are eligible for active
membership but are not engaged in the practice of law in this
state and have filed with the secretary of the association
written notice requesting enrollment in the class of inactive
members."
10
No. 2015AP1928-D
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660
N.W.2d 686.
¶20 We adopt the referee's findings of fact and
conclusions of law that Attorney Horsch violated the supreme
court rules as alleged in the three counts set forth above.
Upon careful consideration we conclude, however, that a 60-day
suspension, rather than a public reprimand, is an appropriate
level of discipline.
¶21 We note that in In re Disciplinary Proceedings Against
Brandt, 2009 WI 43, 317 Wis. 2d 266, 766 N.W.2d 194, (Brandt I)
an attorney was publicly reprimanded as the result of
convictions for third and fourth offense OWI in Wisconsin and
third offense OWI in Minnesota. In addition, Attorney Brandt
failed to adequately supervise an employee. In Brandt I, we
noted that the question of whether to impose another reprimand
or a suspension was a very close call but ultimately concluded
that another public reprimand, coupled with conditions that
Attorney Brandt undergo alcohol and drug assessment and refrain
from the consumption of alcohol and other non-prescription
drugs, was appropriate. Attorney Brandt had previously received
one private reprimand and two public reprimands.
¶22 Justice Ann Walsh Bradley dissented in Brandt I and
said the appropriate sanction would be a suspension in the range
of 60 days to six months, given Attorney Brandt's
acknowledgement that he was addicted to alcohol. Justice
Bradley's concerns were ultimately borne out since Attorney
Brandt was arrested for OWI in Minnesota less than eight months
11
No. 2015AP1928-D
after the 2009 public reprimand was imposed. See In re
Disciplinary Proceedings Against Brandt, 2012 WI 8, 338
Wis. 2d 524, 808 N.W.2d 687. (Brandt II). In Brandt II,
Attorney Brandt's license was suspended for four months.
¶23 Attorney Horsch's multiple OWI convictions are
unquestionably a serious failing that "reflects adversely on his
fitness as a lawyer in other respects." SCR 20:8.4(b).
Attorney Horsch's four drunk driving convictions evince an
irresponsible attitude toward the law. In addition, as Justice
Ann Walsh Bradley noted in her dissent in Brandt I, although
Attorney Horsch states that he has remained sober since
September 2014, there is no evidence in the record apart from
his own self-serving statements that he is indeed maintaining
sobriety. "Given the concept of progressive discipline, the
nature of the multiple offenses, and a record that leaves
unanswered questions about [Attorney Horsch's] sobriety," Brandt
I, 317 Wis. 2d 266, 289 (Bradley J., dissent), we conclude that
a 60-day suspension of Attorney Horsch's license to practice law
in Wisconsin is an appropriate sanction.
¶24 As to the conditions proposed by the OLR, given that
Attorney Horsch's license to practice law is currently
administratively suspended and he does not wish to voluntarily
resign his membership in the State Bar of Wisconsin, we deem it
appropriate to order that the conditions shall commence at such
time, if any, that Attorney Horsch's license to practice law is
reinstated. Finally, we deem it appropriate, as is our usual
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No. 2015AP1928-D
custom, to impose the full costs of the disciplinary proceeding
on Attorney Horsch.
¶25 IT IS ORDERED that the license of Robert W. Horsch to
practice law in Wisconsin is suspended for a period of 60 days,
effective the date of this order.
¶26 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Robert W. Horsch shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$1,797.03 as of February 7, 2017.
¶27 IT IS FURTHER ORDERED that, to the extent that he has
not already done so, Robert W. Horsch shall comply with the
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been suspended.
¶28 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
¶29 IT IS FURTHER ORDERED that in the event Robert W.
Horsch's license to practice to law in Wisconsin is reinstated,
and until further order of the court, he shall be subject to the
following conditions:
Within 60 days of his reinstatement, Attorney
Horsch must provide to the Office of Lawyer
Regulation signed medical releases of
confidentiality for each treatment provider who
has provided or is providing alcohol-related or
substance abuse-related treatment, assessment or
services to Attorney Horsch during the past five
years, so that the Office of Lawyer Regulation
and each provider can share pertinent information
related to Attorney Horsch, such releases to
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No. 2015AP1928-D
remain in effect for two years from the date
Attorney Horsch signs the releases;
Within 60 days of his reinstatement, Attorney
Horsch must, at his own expense, participate in
an alcohol and other drug abuse (AODA) and mental
health assessment by a person of the Office of
Lawyer Regulation's choosing, which shall make
specific written recommendations, if appropriate,
for Attorney Horsch's treatment or maintenance.
The assessment must be provided to the Office of
Lawyer Regulation;
Attorney Horsch must submit to monitoring within
30 days of the date of the assessment, as
directed by the Office of Lawyer Regulation; and
for a period of two years beginning on the date
of his entry into a monitoring program must
comply with all monitoring requirements,
including all requirements determined to be
appropriate by the Wisconsin Lawyers' Assistance
Program (WisLAP) or the Office of Lawyer
Regulation's designated monitor;
Attorney Horsch must refrain from the consumption
of alcohol and any mood-altering drugs without a
valid prescription while subject to monitoring.
¶30 IT IS FURTHER ORDERED that Robert W. Horsch's
administrative suspension for failure to pay State Bar dues,
noncompliance with continuing legal education requirements, and
failure to submit the required trust account certification to
the State Bar shall remain in effect.
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No. 2015AP1928-D.ssa
¶31 SHIRLEY S. ABRAHAMSON, J. (concurring in part and
dissenting in part). A criminal conviction of OWI by a
Wisconsin licensed lawyer does not in and of itself
automatically constitute professional misconduct. See State v.
Adent, 2016 WI 19, ¶18, 367 Wis. 2d 372, 877 N.W.2d 364
(Abrahamson, J., dissenting). Although I agree with many parts
of the per curiam, I conclude that imposing a 60-day suspension
in light of Attorney Horsch's prior disciplinary history,
including a private reprimand for a criminal conviction of OWI,
third offense, is an insufficient sanction.
1
No. 2015AP1928-D.ssa
1