                                                          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
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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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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."


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    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

                                         6
                                                                    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
                                            7
                                                                               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
                                                9
                                                                          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


                                              12
                                                           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


                                      13
                                                     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.




                                  14
                                                               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




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