Offensive Personality And The Public’s Right To Know

The Wisconsin Supreme Court corrected its earlier opinion and issued a public reprimand to an attorney

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.

The court sets out at length the procedural mess.

No contest pleas in attorney discipline matters

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.

The OLR’s complaint involved Respondent’s relationship with an associate attorney who he had met at an alumni function at his law school

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 incident at issue occurred during a trip to San Francisco for depositions

On the evening of February 3, 2016, H.M. was in a common space watching television. Attorney DeLadurantey approached her and began to rub her back, arms, and legs in a suggestive manner. H.M. left the common area and went to her bedroom. H.M. was upset and afraid, to the extent that she felt physically ill.

Attorney DeLadurantey subsequently texted H.M. and attempted to explain his inappropriate behavior. In the ensuing text exchange between the two, Attorney DeLadurantey asked if he could “try and fix the awkwardness.” H.M. responded, “I’m pretty sure I’m going to throw up shortly – I’m struggling not to.”

Later in the evening, H.M. and Attorney DeLadurantey had a face-to-face conversation in the kitchen of the rental unit. Despite H.M.’s earlier expression of being upset due to Attorney DeLadurantey’s suggestive conduct, during the conversation Attorney DeLadurantey told H.M. that he wanted to “take her upstairs to her bedroom and hold her.” H.M. told Attorney DeLadurantey that would not happen. She also told him during the conversation that she may have to leave Attorney DeLadurantey’s law firm.

At the end of the conversation, Attorney DeLadurantey left the kitchen, went upstairs, and got into the bed in H.M.’s bedroom. When she discovered Attorney DeLadurantey in her bed, H.M. told him that she was not going to share a bed with him. He then left the bedroom.

The next morning, Attorney DeLadurantey admitted to H.M. that his actions the prior evening had been inappropriate, and he apologized for them.

The relationship “deteriorated” and H.M. left the firm; the OLR got involved.

He agreed to an “offensive personality” charge and an harassment charge was dropped

Unfortunately, neither the attorneys nor the referee specified on the hearing transcript precisely what facts the referee was to use as the factual basis for Attorney DeLadurantey’s plea.

Confusion followed as the referee rejected the pled violation

What we do find troubling is that, once the referee determined that the no-contest plea should not be accepted, he proceeded to make findings of fact that served as the basis for his ultimate legal conclusion of no “offensive personality” violations. As an initial matter, it is clear from the record of this case, both before the referee and on appeal, that the parties and the referee were not on the same page as to precisely what was the universe of facts that should serve as the factual basis for the plea. That would have been problematic even if the referee had continued to accept the plea.

The parties had urged the court not to remand again; the court agreed

there is no dispute that while on a business trip, a senior lawyer and employer, while intoxicated, made repeated sexual advances toward a subordinate attorney employee that were clearly and repeatedly rebuffed. Indeed, even after H.M. told Attorney DeLadurantey that his physical contact had made her physically ill and then had refused his request to go to her bedroom, Attorney DeLadurantey  still went into H.M.’s bedroom and crawled into her bed, which can be interpreted only as a persistent demand for sexual activity despite H.M.’s refusal to consent. We have no hesitation in holding that such conduct constituted “offensive personality” that not only reflected adversely on Attorney DeLadurantey’s professional judgment and fitness to be a member of the legal profession, but also reflected adversely on the reputation and integrity of the legal profession generally. Regardless of any personal relationship that had developed, H.M. was a subordinate attorney whose professional success and continued employment were, in large part, subject to Attorney DeLadurantey’s control. This was not a matter solely of Attorney DeLadurantey’s private affairs and personal morality. Consequently, Attorney DeLadurantey’s offensive conduct in pressuring a subordinate employee to engage in unwanted sexual activity during the San Francisco incident constituted a clear violation of the Attorney’s Oath and SCR 20:8.4(g).

The referee proposed sealing

There is nothing in this proceeding that mandates that the record be sealed. It is true that the filings in this proceeding may be embarrassing for everyone involved, but that is not a legal basis for sealing a case record. We recognize that keeping the record in the case open to the public may cause distress to H.M., but the public has a right to learn and understand the process by which this court renders decisions in attorney disciplinary proceedings and we have attempted to minimize the impact of this published opinion by using her initials. There is nothing in this case that overcomes the public’s right to observe its government in action.

The July 8, 2022 opinion is linked here. (Mike Frisch)