Office of Lawyer Regulation v. Nathan E. DeLadurantey

2022 WI 66

SUPREME 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 66
NOTICE
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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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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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.

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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
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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.

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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.

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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.

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 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.

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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
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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
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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).

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 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."

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¶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.

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 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 . . .."

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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).

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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
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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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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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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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