                                                            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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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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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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      ¶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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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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     ¶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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