A Belated Update So I Don’t Trigger 8.4(c) By Saying I Blog “Regularly”

Hi folks!

The problem with telling the whole world that you blog regularly about legal ethics is that you have to actually do it. And when you’ve got an elections practice in an election month, and you teach dentists, and then you take a spring break trip, and then your kid takes up soccer, and then you end up with a nasty cold, and also you have your actual work, “regularly” becomes aspirational, rather than actual.

So, I am bringing an update of a case I first wrote about in July. The update itself is tardy. So it goes.

I first wrote about the Nathan DeLadurantey disciplinary matter not for its content (it was a sexual harassment matter resulting in a public reprimand) but for the process issues—the Court spent several pages tearing the referee report apart for not properly supporting factual findings behind the no contest plea, and then upping the referee’s recommended discipline from a private reprimand. However, a few days later, the Court sua sponte withdrew the opinion, for reasons I couldn’t determine at the time.

Now we know: the referee had actually submitted “errata pages for his report that eliminated much of the legal basis for [the Court’s] initial opinion.” The errata pages were only discovered later, and the Court asked for supplemental submissions. Last month, the Court issued a new opinion (still a public reprimand based on the conduct). I took note of Footnote 13:

This case is a cautionary tale for referees and lawyers who appear in attorney disciplinary proceedings. When a respondent attorney decides to enter a no-contest plea, the lawyers and the referee need to be clear regarding what universe of facts will serve as the factual basis for the plea, especially when the record contains disputes as to the underlying events or the context of those events. Moreover, one cannot agree to have one set of facts (e.g., the allegations of the complaint) serve as the factual basis for a no-contest plea and then ask the referee to consider a broader set of conflicting factual assertions (e.g., the record as a whole) in making a recommendation as to the appropriate level of discipline. In the context of a no-contest plea, a referee cannot make factual findings from disputed record evidence to support a discipline recommendation without a hearing at which the referee can assess witness credibility, especially when those factual findings conflict with the facts used to support the plea. Finally, both referees and practicing lawyers need to understand that clarity as to the facts relied on by referee to accept a no-contest plea is necessary to permit this court to review the referee's acceptance of the plea and to write a full opinion deciding the case.

Now, I am always grateful when I have had absolutely nothing to do with the case that becomes a cautionary tale. But anyway, stipulations in disciplinary proceedings are always a bit fraught because while a disciplinary case is not a criminal case (with its 6th Amendment and other constitutional concerns), it’s not a civil case (where the parties can basically agree to whatever resolution they want) either. For awhile, when trying to negotiate stipulations in disciplinary cases, I’d gotten some pushback from OLR counsel about suggestions that would normally fly in a civil case—“we disagree on everything except the amount of money that needs to come out of the defendant’s bank account and go into the plaintiff’s bank account to make this whole thing go away” is dandy in civil cases. We can’t do that in disciplinary cases. Going forward, “Respondent does not contest this allegation” is probably going to be as good as we can get (and expressions of dispute, even if paired with acquiescence, may not carry the day).

I do wonder if this caution is going to create reluctance to stipulate to certain things—respondent attorneys are sometimes willing to take their lumps but don’t want to be seen as admitting or giving up on a particular sticking point. And unlike in a criminal proceeding, there is no plea bargaining; the OLR can’t agree to dismiss a particular count in exchange for accepting responsibility for the others. So, where does this leave us? Stay tuned, I guess.*

*Weasel words this time. I make no promises about timely follow-up.