Office of Lawyer Regulation v. DeLadurantey (In re DeLadurantey)
| Decision Date | 08 July 2022 |
| Docket Number | 2020AP1616-D |
| Citation | 976 N.W.2d 844,2022 WI 66 |
| Parties | 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. |
| Court | Wisconsin Supreme Court |
ATTORNEY disciplinary proceeding
Attorney publicly reprimanded
¶1 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
¶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 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 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 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 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) 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, 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...
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