Office of Lawyer Regulation v. Deladurantey (In re Disciplinary Proceedings Against Nathan E. Deladurantey)

Citation406 Wis.2d 62,2023 WI 17,985 N.W.2d 788
Docket Number2020AP1616-D
Decision Date03 March 2023
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.
CourtWisconsin Supreme Court

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

PER CURIAM.

¶1 The Office of Lawyer Regulation (OLR) appeals Referee Robert E. Kinney's report, as amended, recommending that the court dismiss the remaining charges in the disciplinary complaint filed against Attorney Nathan E. DeLadurantey alleging that Attorney DeLadurantey violated the Attorney's Oath in Supreme Court Rule (SCR) 40.15,1 which is enforced via SCR 20:8.4(g),2 by failing to abstain from "offensive personality."

¶2 This court issued an initial opinion in this case on July 8, 2022. As explained below, because we were unaware of the referee's submission of errata pages for his report that eliminated much of the legal basis for our initial opinion, we withdrew that opinion by order dated July 12, 2022. The discovery of those errata pages caused us to further review the basis upon which the parties had requested the referee to accept Attorney DeLadurantey's no-contest plea and upon which the referee had made factual findings in his report. Having asked for and received responses from the parties regarding their agreement as the factual basis for the plea, and having reconsidered the record in this matter, we now issue this revised opinion. We conclude that Attorney DeLadurantey did engage in "offensive personality" in one incident that he admits, and we determine that the appropriate discipline for that misconduct is a public reprimand. We also determine that Attorney DeLadurantey should be required to pay costs of this disciplinary proceeding in the amount of $17,570.10.

¶3 In order to review the legal conclusion in the referee's amended report, we first need to clarify the procedural context in which this case comes to us on appeal because that informs what we are reviewing and how we can proceed. This further requires us to provide some background on the use of no-contest pleas in attorney disciplinary cases, and the procedural history of the proceedings before the referee in this case.

¶4 Supreme Court Rule 22.14(2)3 contemplates that in a respondent attorney's answer to a complaint filed by the OLR, the attorney may "plead no contest to allegations of misconduct in the complaint." Although this rule speaks only in terms of pleading no contest in the respondent's answer, we have regularly upheld the entry of a no-contest plea entered at any stage of the proceedings before the referee, even if the respondent attorney's answer initially denied some or all of the complaint's factual allegations and claims of misconduct. See, e.g., In re Disciplinary Proceedings Against Hammis, 2019 WI 55, 386 Wis. 2d 719, 927 N.W.2d 525 (no-contest pleas entered pursuant to stipulation after respondent attorney filed answers to original and amended complaints); In re Disciplinary Proceedings Against Hudec, 2019 WI 39, 386 Wis. 2d 371, 925 N.W.2d 540 (no-contest pleas entered pursuant to stipulation after respondent attorney filed unsuccessful motion to dismiss and an answer that denied all allegations of misconduct); In re Disciplinary Proceedings Against Heins, 2017 WI 93, 378 Wis. 2d 27, 902 N.W.2d 257 (referee construed stipulation entered after completion of discovery and just prior to final evidentiary hearing to be entry of no-contest pleas to all counts in complaint).

¶5 In the criminal context, a circuit court has discretion whether to accept a plea, be it a guilty plea or a no-contest plea. State v. Martin, 162 Wis. 2d 883, 904, 470 N.W.2d 900 (1991) ("... a court has discretion whether or not to officially receive or accept [guilty or no-contest] pleas ..."); State v. Erickson, 53 Wis. 2d 474, 476, 192 N.W.2d 872 (1972) ("The trial court earlier rejected a plea of nolo contendere [i.e., no contest], but it was within its discretion to do just that."); State v. La Pean, 247 Wis. 302, 308, 19 N.W.2d 289 (1945) ("The right of the court to refuse to accept a plea is an inherent power of all criminal courts."); Brozosky v. State, 197 Wis. 446, 222 N.W. 311, 313 (1928) (a plea of nolo contendere "is received at the discretion of the court"). Although an attorney disciplinary proceeding is a civil action, rather than a criminal case, we see no reason why this rule would not also apply to a referee in an attorney disciplinary proceeding. First, referees in such matters generally have the powers of a circuit court judge trying a civil action. Moreover, our rules both explicitly authorize the entry of no-contest pleas in attorney disciplinary proceedings and use language that tracks the rules for accepting pleas in criminal cases. See SCR 22.16(1) ("The referee has the powers of a judge trying a civil action ...."); SCR 22.14(2) (authorizing entry of no-contest pleas and providing requirements for accepting such pleas). Thus, it is logical to interpret the plea entry rule in disciplinary proceedings to give the referee the same discretion in deciding whether to accept a plea that a circuit court possesses in a criminal case.

¶6 Rule 22.14(2) states that when a no-contest plea is included in the answer (or offered later in the proceeding), the referee "shall make a determination of misconduct in respect to each allegation to which no contest is pleaded," but only if "the referee finds an adequate factual basis in the record" to support the plea. Id. This tracks the language in the statute that governs the entry of pleas in criminal cases, Wis. Stat. § 971.08(1)(b), which requires a circuit court, before accepting a guilty or no-contest plea, to "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged."

¶7 We have said in the criminal context that how a plea-taking judge makes that inquiry and what the judge uses in the record as the factual basis is left to the judge's discretion. See, e.g., State v. Thomas, 2000 WI 13, ¶¶19-22, 232 Wis. 2d 714, 605 N.W.2d 836. However the plea-taking judge makes the inquiry and whatever portion of the record the judge ultimately relies on, the judge must satisfy the two purposes of the factual basis requirement: (1) that the defendant is aware of the elements of the crime, and (2) that the defendant's conduct, as established by the record, meets those elements. Id., ¶22. Moreover, the plea-taking judge "must ensure that a defendant realizes that his or her conduct does meet the elements of the crime charged." Id., ¶21 (citing McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) ). We see no reason why those statements of the law of pleas in the criminal context would not apply to the requirement to find a "factual basis" for a no-contest plea in an attorney disciplinary proceeding. The use of similar language in the disciplinary rule regarding the need to establish a "factual basis" for a no-contest plea by an attorney supports this conclusion.

¶8 With this background in mind, we now turn to the facts of this case. Attorney DeLadurantey was admitted to practice law in Wisconsin in 2007. Since 2008, he has been the owner of DeLadurantey Law Office, LLC in Brookfield. Since 2013, the primary focus of Attorney DeLadurantey's law firm has been consumer litigation. Attorney DeLadurantey has not previously been disciplined.

¶9 The OLR's complaint in this proceeding focused on the relationship between Attorney DeLadurantey and H.M., the grievant, during the time period that H.M. worked as an associate attorney for Attorney DeLadurantey's law firm. Attorney DeLadurantey and H.M. graduated from the same law school and met at an alumni function. Attorney DeLadurantey subsequently hired H.M., and her employment with his law firm extended from February 2012 until October 2017.

¶10 The OLR's complaint alleged that the law firm's growing consumer litigation practice required H.M. and Attorney DeLadurantey to work evenings and weekends, and to often travel together for interviews, depositions, and court proceedings. The complaint further alleged that over the course of H.M.’s employment, Attorney DeLadurantey and H.M. "established a friendship outside the office, including going to a gym to work out, playing online games, sharing meals together when working, and participating in social activities while traveling for Firm business such as snorkeling, going to the beach, and watching Netflix." The complaint alleged, however, that during this time period Attorney DeLadurantey had "engaged in a pattern of behavior that was inappropriate and at times constituted sexual harassment." The OLR's complaint proceeded to allege a number of incidents and statements that were a part of the alleged pattern of inappropriate and harassing behavior. The complaint alleged multiple violations of two ethical rules arising from "each instance" of subjecting H.M. to physical contact, sexual advances, and comments regarding her physical appearance: (1) violations of SCR 20:8.4(i) (harassment),4 and (2) violations of the "offensive personality" clause in the Attorney's Oath in SCR 40.15. In other words, the complaint alleged that each instance of such conduct summarized in the complaint had violated both of those ethical rules. Consequently, although the OLR's complaint listed only a single count and the parties and the referee have often spoken of a single charge under each ethical rule in this case, the OLR's complaint actually alleged multiple counts of misconduct under each of two separate rules. We will therefore refer to "charges" in the plural for each rule.

¶11 Attorney DeLadurantey's answer to the complaint admitted that the two attorneys had worked together on evenings and weekends and had often traveled together. His answer denied that he had engaged in harassment prohibited by SCR...

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