Unsecured Children Conviction Draws Agreed-Upon Suspension

The Wisconsin Supreme Court accepted a stipulated three-year suspension of an attorney with a record of relatively minor prior discipline.

The misconduct

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 roadway. The children were transported to a hospital, treated, and identified. Police then went to Attorney Horsch’s residence to speak with him.

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.

He was charged with eight felonies. 

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.

As to the agreed sanction

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 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.

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.

Fox News 6 reported on the criminal case

According to a criminal complaint, on May 1, around 7:30 p.m., officers were called out to the area near 8th and Indiana for a report of two children who fell from the back of a van — and the van did not stop. Multiple 911 calls came in from several witnesses at the scene.

Police made contact with two witnesses who were holding the children — a 22-month-old and a 3-year-old. The 3-year-old was found to have abrasions on his chin, his back and his buttock area. He was completely naked, with no clothing or diaper. The complaint said the children “were extremely frantic and upset.” They were taken to the hospital — where it was determined the 3-year-old suffered road rash, abrasions to his chin and a chipped front tooth. The 22-month-old suffered road rash, a skull fracture, scalp swelling and a small hematoma. The complaint noted the skull fracture was determined to be “a significant injury that requires specialists, including a neurologist.”

Numerous witnesses were interviewed by police.

One said the van approached the roundabout near 8th and Indiana and as it was passing north around the roundabout, “the back door of the van was open and she observed two toddlers tumble out of the vehicle.” She said she “immediately got out of her vehicle to see if they were OK, picked them up, and got them in a blanket.” The driver kept going without stopping or applying the brakes. Two other witnesses offered the same version of the events…

Online court records show Horsch was charged with operating while revoked out of Sheboygan County in January 2018.

In April of 2015, Horsch pleaded no contest to OWI, fourth offense within five years — a felony charge. This, in addition to a misdemeanor charge of operating while revoked (due to alcohol/controlled substance/refusal). He was ordered to utilize an ignition interlock device for 36 months, and his license was revoked for 36 months. Additionally, he was ordered to serve eight months in jail.

Supreme Court of Wisconsin records showed Horsch was suspended as a lawyer in December after not reporting his prior offense. In 2013, he closed his law practice to become a stay-at-home dad.

(Mike Frisch)