Office of Lawyer Regulation v. Horsch (In re Horsch)

378 Wis.2d 554

905 N.W.2d 129

2017 WI 105

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Robert W. HORSCH, Attorney at Law:

Office of Lawyer Regulation, Complainant,

v.Robert W. Horsch, Respondent.

No. 2015AP1928-D

Supreme Court of Wisconsin.

OPINION FILED: December 21, 2017

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶1 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 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 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 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

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

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 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 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...