Office of Lawyer Regulation v. Nathan E. DeLadurantey ( 2022 )

2022 WI 66SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1616-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Nathan E. DeLadurantey, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Appellant,
v.
Nathan E. DeLadurantey,
Respondent-Respondent.
DISCIPLINARY PROCEEDINGS AGAINST DELADURANTEY
OPINION FILED: July 8, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam. ANN WALSH BRADLEY, J., filed a concurring opinion.
NOT PARTICIPATING:
ATTORNEYS:
2022 WI 66NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1616-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Nathan E. DeLadurantey,
Attorney at Law:
FILED
Office of Lawyer Regulation,
JUL 8, 2022
Complainant-Appellant,
Sheila T. Reiff
v. Clerk of Supreme Court
Nathan E. DeLadurantey,
Respondent-Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
appeals Referee Robert E. Kinney's report recommending that the
court dismiss the disciplinary complaint filed against Attorney
Nathan E. DeLadurantey alleging one count of offensive
personality in violation of the Attorney's Oath, Supreme Court
Rule (SCR) 40.15,1 enforced pursuant to SCR 20:8.4(g).2
1SCR 40.15 (Attorney's Oath) provides in relevant part: "I
will abstain from all offensive personality . . .."
No. 2020AP1616-D
¶2 The OLR maintains that Attorney DeLadurantey's conduct
to Attorney H.M., an associate in his law firm, constituted
offensive personality and that a private reprimand is
appropriate. Attorney DeLadurantey asks the court to accept the
referee's recommendation and dismiss the offensive personality
charge such that no costs would be imposed. Alternatively, if
the court concludes that he committed misconduct, Attorney
DeLadurantey seeks a private reprimand and asks the court to
significantly reduce the costs, which are $20,530.47 as of
November 4, 2021. The OLR maintains that full costs are
appropriate.
¶3 We have no difficulty concluding that Attorney
DeLadurantey's conduct to H.M., as alleged in the complaint,
constituted offensive personality in violation of SCR 40.15, as
enforced pursuant to SCR 20:8.4(g). Constrained by prior
precedent, we elect to impose a public reprimand rather than a
more severe sanction. We take issue with several aspects of the
referee's report and for the reasons explained herein we reduce
the costs by $2,960.37 and direct Attorney DeLadurantey to pay
costs of $17,570.10. Restitution is not at issue; because this
case solely concerns Attorney DeLadurantey's offensive conduct,
there are no funds to restore.
¶4 Attorney DeLadurantey was admitted to practice law in
Wisconsin in 2007 and practices in Brookfield. He has not
2SCR 20:8.4(g) provides: "It is professional misconduct
for a lawyer to violate the attorney's oath."
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No. 2020AP1616-D
previously been disciplined. Attorney DeLadurantey and H.M.,
the grievant, graduated from the same law school, which is not
American Bar Association (ABA) accredited. They met at an
alumni event. In 2012, Attorney DeLadurantey, by then an
established attorney, hired H.M. as a junior associate.
Attorney DeLadurantey's busy consumer litigation practice
required both Attorney DeLadurantey and H.M. to work evenings
and weekends and required extensive travel for interviews,
depositions, and litigation.
¶5 It is undisputed that Attorney DeLadurantey and H.M.
developed a friendship and that they socialized, exercised
together, communicated frequently by text message, went on
social outings during work travel, and generally spent a lot of
time together. H.M. worked at the firm until October 2017.
About five months after her departure, H.M. filed a grievance
with the OLR alleging that her departure was due to Attorney
DeLadurantey's pattern of inappropriate behavior toward her that
at times constituted sexual harassment.
¶6 The complaint alleges that in 2014, H.M. spoke to
Attorney DeLadurantey about the need to maintain clear
boundaries in their social and professional relationship. In
July 2015, Attorney DeLadurantey asked H.M. to travel with him
to Door County to prepare for an upcoming trial. H.M. agreed
and went to Door County with him but alleged this request made
her uncomfortable, although she did not communicate this to
Attorney DeLadurantey. When Attorney DeLadurantey suggested a
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No. 2020AP1616-D
second trip for further trial preparation, H.M. told Attorney
DeLadurantey that she would not join him on a second trip.
¶7 Later in 2015, Attorney DeLadurantey and H.M. had a
trial scheduled in Florida. Attorney DeLadurantey rented a two
bedroom Airbnb accommodation for them. During their stay in
Florida, on one occasion H.M. took a nap on the couch in the
common space and when she awoke, Attorney DeLadurantey was
napping on the same couch and told her he did not want to be
alone. On the same trip, while shopping together, Attorney
DeLadurantey suggested H.M. purchase some "lucky underwear" for
the forthcoming trial and gave her some money. H.M. reported
that these incidents made her uncomfortable.3
¶8 The complaint alleged that in 2015 while they were
traveling together on an airplane, Attorney DeLadurantey
suggested H.M. put her legs across his lap. H.M. declined.
Attorney DeLadurantey then pulled H.M.'s legs over his lap.
When H.M. removed her legs, Attorney DeLadurantey attempted to
pull H.M.'s head onto his shoulder. H.M. alleges that several
times between late summer and December 2015 Attorney
DeLadurantey placed his hand on H.M.'s leg above her knee while
3 H.M. explained that she did not feel comfortable
confronting Attorney DeLadurantey because she was concerned for
her employment security. The complaint alleged that Attorney
DeLadurantey would tell H.M. she was lucky to have a job with
him because it was unlikely another law firm would hire her or
pay her what she was earning with his firm, because she (like
Attorney DeLadurantey) was not a graduate of an ABA accredited
law school. The complaint alleged Attorney DeLadurantey told
H.M. she did not possess the skills to manage her own law firm.
4
No. 2020AP1616-D
they were driving together. The complaint alleges that during
this same period, on several occasions, Attorney DeLadurantey
took and held H.M.'s hand. The complaint further alleges that
in December 2015, H.M. expressed discomfort about unwelcome
physical contact and asked Attorney DeLadurantey to respect
"clear boundaries." She says Attorney DeLadurantey apologized
and agreed to modify his behavior.
¶9 In February 2016, Attorney DeLadurantey and H.M.
traveled to San Francisco, California for depositions. Attorney
DeLadurantey rented a two bedroom Airbnb accommodation; each had
their own bedroom. One evening, H.M. was watching television in
a common area when Attorney DeLadurantey approached her and
began rubbing her back and rubbing his arms up and down her arms
and legs in a suggestive manner. H.M. alleges she was upset and
scared, left the common area and went to her bedroom. Attorney
DeLadurantey then texted H.M. from within the accommodation,
asking: "Can I try and fix the awkwardness?" H.M. responded by
text: "I'm pretty sure I'm going to throw up shortly - I'm
struggling not to."
¶10 Later that same evening, H.M. and Attorney
DeLadurantey spoke together in the kitchen and Attorney
DeLadurantey told H.M. he wanted to take her upstairs to her
bedroom and "hold her." H.M. said no. Attorney DeLadurantey
left the kitchen. When H.M. went to her bedroom later, she
found Attorney DeLadurantey lying in her bed. H.M. told
Attorney DeLadurantey she was not going to share a bed with him
and Attorney DeLadurantey left H.M.'s bedroom. The next
5
No. 2020AP1616-D
morning, Attorney DeLadurantey admitted to H.M. that his actions
the previous night had been inappropriate, attributed them to
intoxication, and apologized. Attorney DeLadurantey does not
dispute this incident occurred.
¶11 H.M. and Attorney DeLadurantey agree that thereafter,
their personal and working relationship deteriorated. Conflicts
arose regarding H.M.'s vacation time and her responsibilities to
the firm while she was on vacation. H.M. alleged that Attorney
DeLadurantey was more critical of her work. She says he made it
clear that he preferred her to wear makeup, and commented she
looked like "trash" when she did not. Once in 2016, Attorney
DeLadurantey told H.M. she could not attend a luncheon with a
third party because she was not wearing makeup. In October
2017, H.M. told Attorney DeLadurantey she had applied for a
position with another firm. They ultimately negotiated a
severance package and H.M. left the firm in late October 2017.
¶12 On September 29, 2020, the OLR filed a complaint
against Attorney DeLadurantey alleging that by subjecting H.M.
to physical contact and sexual advances, and to inappropriate
comments regarding her physical appearance, in each instance
Attorney DeLadurantey violated SCR 20:8.4(i)4 (sexual harassment)
4 SCR 20:8.4(i) provides: "It is professional misconduct
for a lawyer to harass a person on the basis of sex, race, age,
creed, religion, color, national origin, disability, sexual
preference or marital status in connection with the lawyer's
professional activities." The OLR dismissed this charge. The
court is perplexed as to why the OLR elected to dismiss the
sexual harassment charge on this record, but that issue is not
before us.
6
No. 2020AP1616-D
and did not abstain from offensive personality in violation of
the Attorney's Oath, SCR 40.15, enforced via SCR 20:8.4(g). The
OLR sought a private reprimand.
¶13 Attorney DeLadurantey filed an answer admitting some
but not all of the factual allegations, providing context for
others, and denying he committed professional misconduct.
Referee Kinney was appointed on December 10, 2020. Extensive
discovery ensued. Hundreds of pages of exhibits, photographs,
and text messages were produced, as well as Attorney
DeLadurantey's and H.M.'s deposition transcripts.
¶14 On May 17, 2021, shortly before the scheduled
evidentiary hearing, the OLR dismissed the sexual harassment
charge, SCR 20:8.4(i), and Attorney DeLadurantey agreed to enter
a "no contest" plea to the offensive personality charge,
SCR 40.15 enforced pursuant to SCR 20:8.4(g). Referee Kinney
agreed that the complaint provided a sufficient factual basis
for the offensive personality charge and accepted Attorney
DeLadurantey's no-contest plea. No evidentiary hearing was
held. The only remaining issue was discipline; both parties
requested a private reprimand. The referee ordered briefing on
the question of appropriate discipline.
¶15 Following receipt of the briefing regarding
discipline, the referee filed a 23-page report concluding that
Attorney DeLadurantey committed the alleged misconduct5 but,
Finding #3 of the referee's report explicitly confirms the
5
referee's previous determination that that the complaint
provides an adequate factual basis for the offensive personality
charge.
7
No. 2020AP1616-D
based on the referee's own "additional findings,"6 the referee
recommends we dismiss the complaint and/or impose no discipline
on Attorney DeLadurantey. The OLR appeals.
¶16 On an appeal from a referee's report, we will affirm a
referee's findings of fact unless they are found to be clearly
erroneous and we review the referee's conclusions of law on a
de novo basis. In re Disciplinary Proceedings Against Inglimo,
2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine
the appropriate level of discipline given the particular facts
of each case, independent of the referee's recommendation, but
benefiting from it. In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶17 The referee's report is concerning in several
respects. It is internally inconsistent, contains superfluous
and in some instances clearly erroneous factual findings,
reflects an incorrect application of law, and expresses the
concerning opinion that Attorney DeLadurantey's inebriated
sexual advances to his employee in San Francisco violates no
rule of professional conduct and merits no discipline. First,
the referee's report is internally inconsistent. The referee
explicitly finds that the complaint forms an adequate factual
basis for Attorney DeLadurantey's no contest plea to offensive
personality, but then inconsistently states that Attorney
DeLadurantey's conduct was not offensive and thus recommends we
6Finding #4 of the referee's report states that
"[a]dditional findings appear below." Those "additional
findings" are recounted in a narrative form.
8
No. 2020AP1616-D
dismiss the charge and/or impose no discipline. A referee can
reject a previously accepted no contest plea and recommend
dismissal of a previously admitted violation. See In re
Disciplinary Proceedings Against Clark, 2016 WI 36, 368
Wis. 2d 409, 878 N.W.2d 662 (following attorney's entry of a no
contest plea to charge in a disciplinary complaint, the referee
concluded that the OLR had failed to meet its burden of proof
with respect to that charge). That is not what the referee has
done here. Rather, the report contains conflicting and thereby
confusing findings of fact and conclusions of law as to whether
Attorney DeLadurantey engaged in offensive personality.
¶18 The referee's narrative recounting of "additional
findings" is also problematic. Most of these additional
findings pertain to whether Attorney DeLadurantey engaged in
sexual harassment in violation of SCR 20:8.4(i). However, the
OLR dismissed that charge.7 Unaccountably, the referee
nonetheless proceeded to make a number of wholly superfluous
factual findings regarding whether Attorney DeLadurantey's
conduct legally constituted sexual harassment. These findings
include various credibility determinations that far exceed the
scope of the complaint, which was the agreed upon basis for
Attorney DeLadurantey's no contest plea to a violation of the
Attorney's Oath.
¶19 In making these additional findings, the referee
purported to distill what he deems "uncontroverted facts" from
7 See supra at ¶14.
9
No. 2020AP1616-D
the voluminous discovery record. Yet, many of these findings
are not derived from "uncontroverted facts." Rather, the
referee offers his opinion and interpretation of many disputed
factual events despite the absence of any stipulation or witness
testimony on which to base his implicit credibility
determinations. There was no reason for the referee to
undertake a lengthy legal analysis of a claim that the OLR had
dismissed, and the expansive scope of the referee's "additional"
findings of fact far exceed what was necessary to confirm an
adequate factual basis or to recommend a sanction. Moreover the
"additional" factfinding resulted in the referee turning the
tables and blaming the victim seemingly for being present during
Attorney DeLadurantey's several incidents of inappropriate,
harassing, offensive, and boorish behavior.
¶20 We will overturn a referee's factual findings if those
findings are clearly erroneous. Several of the referee's
"additional findings" are also clearly erroneous. In re
Disciplinary Proceedings Against Boyle, 2015 WI 110, ¶41, 365
Wis. 2d 649, 872 N.W.2d 637.
¶21 The referee found that Attorney DeLadurantey "asked"
to escalate the relationship with H.M. in San Francisco. This
finding is clearly erroneous. A law firm owner drunkenly
groping a subordinate attorney is not a request, nor is getting
into a subordinate attorney's bed on a business trip without her
consent.
¶22 The referee found that Attorney DeLadurantey's sexual
advances to H.M. in San Francisco were not "unwelcome" and that
10
No. 2020AP1616-D
H.M. could not have experienced a hostile or toxic work
environment based on certain information the referee gleaned
from the record. This "information" consisted of photographs of
H.M. and Attorney DeLadurantey taken while they stayed at
"various beach accommodations" on business trips;8 the fact that
H.M. was well compensated; that Attorney DeLadurantey gave H.M.
more than the usual amount of professional authority, including
management consultation; and that after the incident in San
Francisco, H.M. remained employed at the firm for almost 20
months. The referee's apparent assumption that a preexisting
friendship, pleasant surroundings, or a decent salary precludes
an employee from being subjected to offensive, hostile, or
unwelcome conduct by one's boss is clearly erroneous.9
¶23 Compounding these erroneous "additional findings" is
the fact that on this record, it was unnecessary for the referee
The record contains a number of photos that show Attorney
8
DeLadurantey and H.M. and occasionally another firm employee at
various client locations and vacation spots smiling at a camera.
None depict any intimate contact.
The referee also found that Attorney DeLadurantey's
9
comments to H.M. regarding her dress and use of makeup could not
support a charge of "offensive personality." Because we
determine that the incident in San Francisco, standing along,
was sufficient to substantiate the offensive personality charge,
we need not decide whether these allegations, standing alone,
might also constitute offensive personality. However, it is
troubling that the referee scoured the record to independently
decide that Attorney DeLadurantey's comments to H.M. "appear to
have been 'couple's banter' made in the context of a private,
personal relationship." The referee then engaged in
inappropriate speculation, concluding that the "real" reasons
H.M. eventually left the firm was due to a "break-up" that the
referee attributed to tension over H.M.'s frequent vacations.
11
No. 2020AP1616-D
to make them at all. It appears they stem from the referee's
incorrect assumption that legally, a violation of SCR 40.15
(violation of the Attorney's Oath) requires that the attorney's
challenged conduct also violated SCR 20:8.4(i) (sexual
harassment).10 This is incorrect. These are separate rule
provisions. A violation of SCR 20:8.4(i) is not a required
element for a violation of the Attorney's Oath, SCR 40.15
enforced pursuant to SCR 20:8.4(g). As such, the referee's
lengthy sexual harassment analysis, including his assessment of
the "welcomeness" of Attorney DeLadurantey's conduct, and the
additional findings pertaining to that analysis are misplaced
and we reject them.
¶24 The referee also erroneously assumed that the
discussions H.M. and Attorney DeLadurantey had about
"boundaries" pertained only to travel housing arrangements.
However, the record shows that in December 2015, Attorney
DeLadurantey acknowledged that:
[T]here was a discussion of the two hand holding
occasions. At that time, [H.M.] did indicate she
wasn't comfortable with it, that he was married, and
that their mutual faiths . . . wouldn't approve of
such contact. [H.M.] indicated that the hand holding
should stop before something happened. Mr.
DeLadurantey agreed, apologized for having held her
hand, and never did it again.
10The referee queried, "[i]f DeLadurantey's conduct was
welcome (which, presumably, was the primary basis for [OLR's]
dismissal of the sexual harassment charge), how could the same
conduct be offensive?" (Emphasis in original omitted).
12
No. 2020AP1616-D
¶25 The referee also erroneously accuses H.M. of "moving
the goal posts", that is, being inconsistent with respect to
permissible "boundaries." The referee apparently faults H.M.
because she initially expressed discomfort about staying in a
shared Airbnb lodging but later she agreed to and approved
various Airbnb accommodations for business travel. However, as
noted above, the record does not support the finding that H.M.'s
reference to "boundaries" only pertained to travel lodging. We
see no evidence that H.M.'s position regarding unwanted sexual
contact ever changed, nor that she conceded her "boundaries"
changed. Therefore, we deem clearly erroneous the referee's
finding that H.M. "conceded the goal posts seemed to
move . . . ." We accept and affirm only factual findings 1-3 in
the referee's report.11
11The first three findings in the referee's report state as
follows:
1. The respondent was licensed to practice law in
the State of Wisconsin on April 18, 2007. He operates
his own law firm, located in Brookfield, Wisconsin.
2. On May 17, 2020, the respondent entered a plea
of "no contest" to the charge of "offensive
personality" contained in OLR's Complaint filed on
September 29, 2020. Before and at the time the plea
was entered the respondent was represented by counsel,
and he fully understood the rights he was waiving by
entering the plea, as the record of the proceedings
shows.
3. Upon my independent review of the allegations
contained in the Complaint, I find that the Complaint
contains an adequate factual basis for the charge of
"offensive personality."
13
No. 2020AP1616-D
¶26 The referee's faulty analysis caused the referee to
conclude that Attorney DeLadurantey's conduct did not, as a
matter of law, constitute offensive personality under SCR 40.15
and SCR 20:8.4(g). In the referee's view, H.M. and Attorney
DeLadurantey had a lengthy platonic relationship which involved
occasionally sharing hot tubs, mutual back rubs, and hand
holding, which he deemed to be all voluntary, "welcome" conduct.
The referee thus concludes that the San Francisco incident could
not have been unwelcome and therefore was not "offensive" as
that term is used in SCR 40.15. In short, the referee assumes
that because H.M. had enjoyed spending time with Attorney
DeLadurantey and was comfortable with sharing a hot tub at a
hotel and shoulder rubs12 it was not offensive for Attorney
DeLadurantey to suggest his employee purchase "lucky trial
underwear" while they were shopping during a business trip, or
to drunkenly run his "hands up and down her arms and legs" or,
after she informed him this overture made her nauseous, to climb
into her bed a few hours later. We flatly reject the referee's
In her deposition, H.M. testified there were a few
12
occasions she asked Attorney DeLadurantey for "a shoulder rub."
H.M. described this conduct as friendly, not flirtatious. In
other words, H.M. did not consider a shoulder rub to be sexually
suggestive physical contact.
14
No. 2020AP1616-D
characterization of these events.13 A subordinate attorney who
befriends the boss should not be assumed to "welcome" the boss's
drunken sexual overtures when the employee has unequivocally
rejected such advances.
¶27 The referee's analysis fails because a failure to
abstain from offensive personality under the Attorney's Oath
does not require that the attorney's conduct constitute sexual
harassment under SCR 20:8.4(i). Additionally, it fails because
the referee disregards the critical fact that Attorney
DeLadurantey was, at all times, H.M.'s employer.14
¶28 What then is required to constitute a failure to
abstain from offensive personality under the Attorney's Oath?
Our profession requires attorneys to maintain certain standards
of conduct. See, e.g., SCR 20:3.1; SCR 20:8.4; and SCR 62.02.
The Attorney's Oath taken by every lawyer when admitted to
practice requires attorneys to "abstain from all offensive
personality" and we have disciplined attorneys for failing to do
The OLR notes that even if the "welcomeness" of Attorney
13
DeLadurantey's conduct is deemed relevant (which it disputes),
an objective, reasonable and prudent person would have no
trouble ascertaining that H.M.'s consistent rejection of
Attorney DeLadurantey's physical advances signaled that those
attempts were not welcome. We agree. The record is clear that
H.M. clearly and repeatedly signaled that Attorney
DeLadurantey's drunken sexual overtures in San Francisco were
unwelcome, and any finding to the contrary is clearly erroneous.
Referencing Attorney DeLadurantey's comments about H.M.'s
14
appearance, the referee opines, "it is likely that these
comments were not made to [H.M.] as an employee but were instead
made to [H.M.] as a female friend and traveling
companion . . .."
15
No. 2020AP1616-D
so.15 We have stated, moreover, that an attorney may violate the
Attorney's Oath by conduct that occurs out of court as well as
by in-court conduct. See In re Disciplinary Proceedings
Against Johann, 216 Wis. 2d 118, 574 N.W.2d 218 (1998).
However, its application is restricted to conduct that reflects
adversely on a person's fitness as a lawyer. Johann 216
Wis. 2d at 122.
¶29 The referee is correct that we must take care that the
term "offensive personality" not be read to include conduct that
the court, acting on behalf of the state, has no legitimate
interest in prohibiting. We also take care to limit the scope
and application of the Attorney's Oath so that it does not reach
constitutionally protected conduct or significantly inhibit an
attorney's exercise of the right of free speech. In re
Disciplinary Proceedings Against Sommers, 2012 WI 33, 339
Wis. 2d 580, 811 N.W.2d 387. The conduct we regulate by this
rule transcends mere incivility. However, the provisions of
that oath are expressly incorporated into the rules promulgated
by this court governing the professional conduct of attorneys.
Under those rules a violation of the Attorney's Oath constitutes
professional misconduct. SCR 20:8.4(g).
¶30 We have previously ruled that sexually inappropriate
language and conduct may constitute offensive personality in
This court has upheld the constitutionality of the
15
"offensive personality" phrase in the Attorney's Oath as applied
to an attorney's professional conduct. See In re Disciplinary
Proceedings Against Beaver, 181 Wis. 2d 12, 510 N.W.2d 129(1994).
16
No. 2020AP1616-D
various scenarios: trading surreptitiously taken photographs of
nude minors without their consent, In re Disciplinary
Proceedings Against Bruckner, 161 Wis. 2d 385, 467 N.W.2d 780(1991); using the state's e-mail system to send and receive
sexually explicit e-mail messages and making inappropriate
comments to a county employee in a work environment; In re
Disciplinary Proceedings Against Beatse, 2006 WI 115, 297
Wis. 2d 292, 722 N.W.2d 385; repeatedly asking a woman divorce
client explicit questions about her sexual behavior; In re
Disciplinary Proceedings Against Heilprin, 168 Wis. 2d 1, 482
N.W.2d 908 (1992); and shouting obscenities at a female client,
Public Reprimand of Richard L. Jones, No. 1992-17.16
¶31 Here, the complaint alleges that, during a business
trip a law firm partner - while intoxicated – made unwelcome
sexual advances to a subordinate associate which were clearly
rebuffed, then the same evening the lawyer entered that
employee's separate bedroom without permission and climbed,
uninvited, into the employee's bed. We refuse to ignore such
behavior on the part of a supervising attorney with a
subordinate employee. To do otherwise would condone behavior
Electronic
16 copy available at https://compendium.
wicourts.gov/app/raw/000311.html). Sexually inappropriate
language and conduct is by no means the only type of behavior
that can constitute offensive personality under SCR 40.15 and
SCR 20:8.4(g). See, e.g., In re Disciplinary Proceedings
Against Blask, 216 Wis. 2d 129, 573 N.W.2d 835 (1998) (lawyer
committed offensive personality by engaging in a loud physical
confrontation with a 67-year-old man leaving the register in
probate's office and, in separate incident, shoving a high
school basketball referee over a game call).
17
No. 2020AP1616-D
that is detrimental to the reputation and integrity of the legal
profession. Because of Attorney DeLadurantey's position as
H.M's supervisor, he put H.M. in an impossible position.
Additionally, Attorney DeLadurantey held the keys to her
success. If she crossed him, she risked professional and
financial harm. Attorney DeLadurantey's offensive conduct to
H.M. in San Francisco, given the context of their employer-
employee relationship, clearly crossed the line separating the
personal from the professionally offensive, showed a lack of
trustworthiness and reflected poorly on his professional
judgment and ability, thereby reflecting adversely on Attorney
DeLadurantey's fitness to practice law.
¶32 Accordingly, we accept the referee's Finding #3 that
that the complaint contains an adequate factual basis for a
charge of "offensive personality" and his conclusion that the
allegations in the complaint demonstrate by clear, convincing,
and satisfactory evidence that Attorney DeLadurantey's conduct
in San Francisco violated the Attorney's Oath constituting
offensive personality, in violation of SCR 40.15, enforced
pursuant to SCR 20:8.4(g).
¶33 We now consider the appropriate sanction. We weigh
the seriousness, nature and extent of the misconduct; the level
of discipline needed to protect the public; the need to impress
upon the attorney the seriousness of the misconduct; and the
need to deter other attorneys from similar misconduct. In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, 269
Wis. 2d 43, 675 N.W.2d 747. Sources of guidance in determining
18
No. 2020AP1616-D
appropriate sanctions are: prior case law; aggravating and
mitigating factors; and ABA Standards for Imposing Lawyer
Sanctions. In re Disciplinary Proceedings Against Arthur, 2005
WI 40, 279 Wis. 2d 583, 694 N.W.2d 910.
¶34 Ironically, Attorney DeLadurantey appears more mindful
of his own culpability than does the referee, acknowledging that
his conduct in San Francisco was wrong. The referee, however,
suggests that Attorney DeLadurantey's conduct to H.M. merits no
discipline, citing In re Disciplinary Proceedings Against Johns,
2014 WI 32, 353 Wis. 2d 746, 847 N.W.2d 179 (finding no
SCR 20:8.4(b) violation despite an attorney's conviction for the
vehicular homicide of his brother in light of evidence showing
the exceedingly anomalous nature of the attorney's conduct and
his full acceptance of responsibility for its tragic
consequences). Johns was a very different case. Attorney Johns
was criminally prosecuted then charged with a violation of SCR
20:8.4(b), which states that it is professional misconduct to
commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other
respects. Attorney Johns was deeply remorseful and had served
prison time for his conviction. We concluded that the accident
did not reflect adversely on John's fitness as a lawyer. By
contrast, Attorney DeLadurantey was not criminally charged for
his misconduct. His misconduct involved a subordinate employee
at his law firm and does reflect on his fitness as a lawyer.
¶35 The referee points to ABA Comment [2] to ABA's Model
Rule 8.4, upon which SCR 20:8.4 was based, which states:
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Many kinds of illegal conduct reflect adversely on
fitness to practice law, such as offenses involving
fraud and the offense of willful failure to file an
income tax return. However, some kinds of offenses
carry no such implication. Traditionally, the
distinction was drawn in terms of offenses involving
"moral turpitude." That concept can be construed to
include offenses concerning some matters of personal
morality, such as adultery and comparable offenses,
that have no specific connection to fitness for the
practice of law. (Emphasis added.)
¶36 The referee argues this court should overlook Attorney
DeLadurantey's conduct on the grounds that an office
extramarital relationship is not necessarily an offense that
reflects adversely on a lawyer's fitness to practice law. This
perspective completely ignores the actual record before us.
Attorney DeLadurantey made unwanted sexual overtures to a
subordinate employee on a business trip, and that does reflect
adversely on his fitness to practice law.
¶37 The parties both request a private reprimand and the
referee agreed a private reprimand would be appropriate if we
decline to dismiss the case or impose no discipline. The
collective recommendation reflects an unfortunate historical
reality. Under past precedent, a lawyer's sexually offensive
language and conduct has often received no more than a private
or public reprimand. See, e.g., Private Reprimand No. 1991-6
(private reprimand imposed on lawyer who, while awaiting the
return of a jury, approached a female law enforcement officer at
a courthouse and made statements that she interpreted as
sexually aggressive, later grabbed her shoulders and attempted
to embrace her, and later approached a different female officer,
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pushed her against a wall and made suggestive and disparaging
remarks); Private Reprimand No. 2008-38 (private reprimand
imposed on an attorney who made sexually suggestive comments to
a co-worker over a period of several years and on one occasion,
kissed the co-worker without consent); Private Reprimand No.
2015-2 (imposing private reprimand on attorney who grabbed
breast of female employee of a bar, made several sexually
suggestive and offensive comments to her, followed her home, was
arrested, and charged with fourth-degree sexual assault). Past
precedent constrains us to impose no more than a public
reprimand on Attorney DeLadurantey, but we take this opportunity
to remind practitioners that we are applying increasing scrutiny
to attorneys' sexual misconduct. Compare In re Disciplinary
Proceedings Against Ritland, 2021 WI 36, 396 Wis. 2d 509, 957
N.W.2d 540. We do so because sexual harassment comes at a heavy
price for victims who can suffer significant psychological
effects as well as job-related costs, including job loss,
reputational harm, impairment of professional opportunities, and
irreparable damage to interpersonal relationships at work. At
the risk of redundancy, we emphasize that sexual misconduct by
attorneys, whether with clients or non-clients, is not taken
lightly. Ritland, 396 Wis. 2d 509, ¶39.
¶38 We turn to the question of costs, which are $20,530.47
as of November 4, 2021. Attorney DeLadurantey filed an
objection to costs, arguing that SCR 22.24(1m) merits reducing
the costs imposed on him. Supreme Court Rule 22.24(1m)
articulates six factors we consider when evaluating a costs
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challenge. First, we consider the number of counts charged,
contested, and proven. In Attorney DeLadurantey's view the
OLR's "major focus" was the sexual harassment charge that the
OLR eventually dismissed. He argues that because the OLR
dismissed this count, no costs should be assessed in connection
with the OLR's pursuit of this violation. Second, we consider
the nature of the misconduct. Attorney DeLadurantey says that
had the offensive personality been the only claim from the
outset, the costs incurred would have been substantially lower.
Third, we consider the level of discipline sought by the parties
and recommended by the referee. The parties and the referee
recommended a private reprimand or dismissal. Fourth, we
consider Attorney DeLadurantey's cooperation with the
disciplinary process. It is undisputed that Attorney
DeLadurantey cooperated throughout the disciplinary process.
Fifth, we consider prior discipline. Attorney DeLadurantey has
no prior disciplinary record. Finally, we consider "other
relevant circumstances." Attorney DeLadurantey contends that
the "sexual harassment claim was poorly based in fact from the
start and all costs in furtherance of the OLR's attempts to
satisfy that claim should not be assessed." He suggests we
impose ten percent of the total costs, or $2,053.05.
¶39 The OLR maintains that the sexual harassment and
offensive personality claims were intertwined; the OLR's counsel
spent time concurrently pursuing both. The OLR reminds us that
traditionally, costs are not reduced even when a respondent
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prevails on several counts, and cites several cases in support
of this assertion.
¶40 We agree with the OLR. We decline to deviate from our
long-standing disinclination to apportion costs on the number of
counts proven or unproven.17 We note, moreover, that the referee
found the pre-appellate costs to be both reasonable in amount
and necessarily incurred, stating:
Having read and made notes on the hundreds of pages of
exhibits provided by both counsel, and having
performed many hours of research, I am in a good
position to assess the work that went into this case.
I find that the sum of $18,311.47 is reasonable, and
the costs enumerated were necessarily incurred by the
[OLR] in this matter.
¶41 We acknowledge that Attorney DeLadurantey has, by all
accounts, cooperated completely with this disciplinary matter.
He entered a no contest plea to offensive personality, but the
referee undertook a lengthy analysis and issued a problematic
report, resulting in the OLR's appeal. The referee billed
$5,920.74 for the time spent writing his report which,
unfortunately has delayed and complicated this matter. We
reduce the costs billed for writing the report by 50 percent or
$2,960.37. We direct Attorney DeLadurantey to pay the remaining
17See, e.g., In re Disciplinary Proceedings Against
Eisenberg, 144 Wis. 2d 284, 423 N.W.2d 867 (1988) (declining
respondent's request to apportion costs according to the number
of misconduct counts that resulted in determinations of
professional misconduct); In re Disciplinary Proceedings Against
Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376 (rejecting
argument that costs not be assessed because he would have agreed
to a public reprimand, which the referee ultimately recommended
as discipline).
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costs of $17,570.10. Finally, we reject the referee's
unsupported recommendation that we "seal" this case.
¶42 IT IS ORDERED that, as discipline for his professional
misconduct and violation of SCR 40.15, enforced via
SCR 20:8.4(g), Nathan E. DeLadurantey is publicly reprimanded.
¶43 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Nathan E. DeLadurantey shall pay to the Office of
Lawyer Regulation $17,570.10 for the costs of this proceeding.
¶44 IT IS FURTHER ORDERED that the Office of Lawyer
Regulation shall advise this court if Nathan E. DeLadurantey
fails to comply with all conditions of this order. See
SCR 22.28(2).
¶45 BRIAN HAGEDORN, J., I concur only in the mandate.
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¶46 ANN WALSH BRADLEY, J. (concurring). I considered
joining only the mandate of this per curiam and writing nothing
more, as does my colleague Justice Brian Hagedorn. For me, that
would accomplish a total disassociation from the opinion's
discussion, a desired goal. Ultimately, however, I decided to
write separately to address some of the blatant infirmities of
the opinion.
¶47 First and foremost, I stress that this is a lawyer
discipline case. Nevertheless, the majority skews the focus,
spending more ink on addressing the perceived assumptions and
conduct of the referee, rather than on the actual conduct of the
lawyer. What started out as a case where the Office of Lawyer
Regulation was seeking only a private reprimand has certainly
escalated well beyond its modest beginning.
¶48 Referees serve at the pleasure of the court, as do
most of the court's appointees. The undertones of the per
curiam should issue an alert: Appointees beware, lest your
conduct become the focus of future public discussion. The
majority's skewed focus sets a dangerous precedent.
¶49 And speaking of precedent, the majority would have the
reader believe that Attorney Nathan DeLadurantey is actually
deserving of greater discipline than a mere public reprimand,
but its hands are tied. It asserts that because the court is
"[c]onstrained by prior precedent, we elect to impose a public
reprimand rather than a more severe action." Per curiam, ¶3.
Nonsense. One need look only to the recent case of In re
Disciplinary Proceedings Against Meyer to know that when the
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No. 2020AP1616-D.awb
court so desires, it can toss precedent to the wind, ignoring it
completely.1 The imposition of a public reprimand, one of the
lowest levels of attorney discipline, appears markedly at odds
with the court's discussion that takes the referee to task for
failing to recognize the serious nature of the offense. Id.,
¶¶34-36. Its claim that it is constrained by precedent here
appears disingenuous.
¶50 After setting forth the facts and the standard of
review, the per curiam directs its focus on the referee,
describing his report, among other things, as "internally
inconsistent." Id., ¶17. This brings to mind the adage that
one can see the splinter in a neighbor's eye, but not the log in
their own.
¶51 The per curiam is marred by internal inconsistency.
Detailing some of the cases, the per curiam ultimately
acknowledges that "[w]e have previously ruled that sexually
inappropriate language and conduct may constitute offensive
personality." Id., ¶30. Yet, at the outset of its discussion,
the per curiam takes the referee to task for making "wholly
superfluous factual findings regarding whether Attorney
DeLadurantey's conduct legally constituted sexual harassment."
Id., ¶18. The majority can't have it both ways: either a
discussion of sexually inappropriate language and conduct is
1 In a case released only a few weeks ago, In re
Disciplinary Proceedings Against Meyer, 2022 WI 39, ___ Wis. 2d
___, ___N.W. 2d ___, not only did the court fail to follow
existing precedent, it failed to cite any precedent whatsoever
that supported the level of discipline to be imposed.
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No. 2020AP1616-D.awb
relevant because it can constitute offensive personality subject
to discipline, or discussion of it by a referee is "wholly
superfluous." Which is it?
¶52 Because the per curiam is skewed in its focus,
disingenuous in its claim of being constrained by precedent in
its choice of the level of discipline to impose, and marred by
internal inconsistency, I respectfully concur.
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No. 2020AP1616-D.awb
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