The Wisconsin Disciplinary Winds May Be Shifting

It’s been a busy few weeks for the Supreme Court of Wisconsin—like its federal counterpart, it releases a flurry of opinions before it quiets down for the summer (though unlike its federal counterpart, the Wisconsin Court does not have “Terms”). Although I do have an elections and political law practice, and there were a few opinions on which I have Thoughts, this blog isn’t about that, so I won’t be talking about those kinds of opinions unless there is a professional responsibility overlap.

Today, though, an interesting disciplinary opinion came out.* I am recounting it here not for its subject matter, which will likely be the focus of other coverage, but for the overall direction of the process and the opinion.

Disciplinary opinions are per curiam, so we don’t know who authored this one, but nonetheless. Briefly, the respondent lawyer, Nathan DeLadurantey, was charged with violations of SCR 20:8.4(1) (harassment on the basis of sex) and “offensive personality” in violation of the Attorney’s Oath, SCR 40.15, as enforced by SCR 20:8.4(g). The Office of Lawyer Regulation sought a private reprimand in its complaint.

The fact that this is a public complaint seeking a private reprimand is, in itself, worth mention, but sometimes it is unavoidable. Most private reprimands are done ahead of a formal complaint, and by consent, so the identity of the reprimanded lawyer remains private. If, however, the parties cannot come to an agreement, the OLR may file a complaint with the Supreme Court, which by Rule becomes public. That process acts as a disincentive for a respondent to fight a proposed consensual private reprimand—even if they win, the fact that they were prosecuted is still in the public record (even if the opinion is not published and the case disappears from the online court records, the rest of the Internet is forever).

Anyhow, during the referee proceedings, the OLR dropped the 20:8.4(i) violation and the attorney agreed not to contest the offensive personality count. The referee ordered briefing on the appropriate level of discipline. He then concluded that, while the attorney violated the Attorney’s Oath, that the complaint should be dismissed and/or no discipline should be imposed. If, however, the Supreme Court disagreed with that recommendation to dismiss, he indicated that a private reprimand should be the sanction.

Either side can appeal a referee report it does not like, and here, the OLR appealed. This is not common (although I don’t have statistics, I believe, more often, the OLR takes its L) but not unheard of. In briefing, the OLR argued for a private reprimand, and the attorney argued that if the Court did not agree with the referee’s recommendation to dismiss the charge, a private reprimand was appropriate.

Nonetheless, the Supreme Court, indicating it was “constrained by prior precedent,” imposed a public reprimand and not a “more severe sanction” (implying that if not for precedent, it might have considered a more serious sanction, which here would likely mean a suspension and/or conditions on practice). More notable to me, however, was the fact that the per curiam absolutely excoriated the referee report. As noted by Justice Ann Walsh Bradley in her concurrence, the majority “spend[s] more ink on addressing the perceived assumptions and conduct of the referee, rather than on the actual conduct of the lawyer.”

And, ink was certainly spent—starting at Paragraph 17, the opinion characterizes the report as “internally inconsistent, contains superfluous and in some instances clearly erroneous factual findings, reflects an incorrect application of law[.]” This criticism goes on for several pages. At one point (paragraph 34) the Court suggests that the attorney is “more mindful of his own culpability than the referee.”

So, what does that mean for those of us who defend lawyers accused of misconduct, and for those facing charges? There is less predictability than there was in the past; while previously, the Court did occasionally adjust recommended discipline upward (even absent an argument by OLR that it should be more serious), it seems to be happening more frequently and with greater consequence.

In this instance, I do not know whether the respondent attorney was offered a reprimand agreement ahead of a Supreme Court complaint and declined it (though, in my experience, the OLR has not pursued a reprimand in a complaint without first trying for an agreement, which makes sense economically). If he had, and the referee had approved it, the case would be done; under SCR 22.09, the Supreme Court does not get involved in private or public reprimands that are consented to prior to the filing of a formal complaint. While attorneys often stipulate to reprimands, particularly private ones, to avoid the cost, uncertainty, and publicity of a public complaint and referee proceeding, there may be an even greater incentive to do so now.

Also, as Justice Walsh Bradley’s concurrence indicates, referees may be a bit more on edge, particularly if they are leaning toward dismissal or relatively mild discipline. I’m not sure exactly how this is going to play out but we do need to be aware of the possibility.

And, finally, as of August 1, 2023, the winds may shift again, as Justice Roggensack is not running for re-election and there will be an open seat. I guess we’ll find out what that means for discipline in due time, as well. (This Blog Is Not About Politics so that’s all I’ll say about that.)

*As I’ve stated before, because I try to avoid disclosing who is and who is not my client, I make a policy of not commenting on Wisconsin disciplinary action unless the subject of the discipline is my client who directs me to comment, or it is very clear that I do not or will not represent the subject. Here, it’s the latter.

7/13/22 UPDATE: In another unusual move, the Court has now withdrawn its opinion and will issue a revision in due course.