Thursday, December 21, 2017

Drunk Driving And Bar Discipline

One area of attorney discipline where the sanctions can vary widely from jurisdiction is drunk driving.

The approach of the Wisconsin Supreme Court is on the light side, today imposing a 60-day suspension with reinstatement on conditions of an administratively suspended attorney for a fourth offense.

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.

Before the referee

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.

The court rejected the jurisdictional argument and opined on sanction

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.

Conditions will be imposed if he seeks reinstatement.

A tad light according to Justice Abrahamson

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.

There are places that disbar attorneys for such a pattern of offenses. A single felony offense results in disbarment in New York. (Mike Frisch)

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