2014 WI 30
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP3009-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Roger G. Merry, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Roger G. Merry,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST MERRY
OPINION FILED: June 4, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 18, 2013
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., concur/dissent.
(Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs by
Christopher T. Kolb and Halling & Cayo, S.C., Milwaukee, and
oral argument by Christopher T. Kolb.
For the Office of Lawyer Regulation, there was a brief by
Kim M. Kluck, Sun Prairie, and oral argument by Kim M. Kluck.
2014 WI 30
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP3009-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Roger G. Merry, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
JUN 4, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Roger G. Merry,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Complaint dismissed.
¶1 PER CURIAM. Attorney Roger G. Merry appeals a
referee's report recommending that he be publicly reprimanded
for failing to cooperate with an Office of Lawyer Regulation
(OLR) investigation. We conclude the record does not support a
failure to cooperate that warrants discipline. We therefore
dismiss the complaint.
¶2 Attorney Merry was admitted to practice law in
Wisconsin on June 4, 1981. He has been disciplined on five
No. 2011AP3009-D
prior occasions.1 This matter arose following Attorney Merry's
representation of plaintiffs in a neighborhood property dispute.
The underlying controversy involved a private road that crossed
the backyards of adjacent residential properties in the Village
of New Glarus. J.F., the eventual defendant, lived near the
midpoint of the road. J.F. partially blocked the private drive
where it crossed his property. His neighbors, the eventual
plaintiffs, wanted to be able to use the full length of the
drive. They retained Attorney Merry.
¶3 On October 4, 2007, Attorney Merry filed a lawsuit on
behalf of the plaintiffs seeking a declaration of their rights
to the drive. Foster v. Fabish, Green County Case
No. 2007CV342. The width of the easement became important in
the case. Attorney Merry's clients asserted that an easement
width of 14 feet was needed to accommodate fire department and
1
In 1990 Attorney Merry was privately reprimanded for
engaging in a conflict of interest. Private Reprimand,
No. 1990-26. In 1993 Attorney Merry was publicly reprimanded
for client fund and trust account violations, as well as making
at least six intentional misrepresentations to the former Board
of Attorneys Professional Responsibility, the OLR's predecessor.
Public Reprimand of Roger G. Merry, No. 1993-3. In 1994
Attorney Merry was privately reprimanded for failing to keep a
client reasonably informed about the status of a matter.
Private Reprimand, No. 1994-8. In 1999 Attorney Merry was
publicly reprimanded for a conflict of interest. Public
Reprimand of Roger G. Merry, No. 1999-1. In 2008 Attorney Merry
was publicly reprimanded for making a false statement to a
tribunal; offering false evidence; and engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation.
Public Reprimand of Roger G. Merry, No. 2008-OLR-09.
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No. 2011AP3009-D
emergency medical service (EMS) vehicles and personnel. The
plaintiffs eventually lost their case on summary judgment.
¶4 On January 23, 2009, the defendant, J.F., filed a
grievance with the OLR. He alleged that Attorney Merry had
misrepresented facts to the court regarding the purported
requirement of a 14-foot easement for EMS vehicles.
¶5 During the OLR's ensuing investigation, Attorney Merry
refuted the claim that he offered false testimony. He provided
a copy of a letter he received from the New Glarus EMS during
the underlying litigation. The New Glarus EMS letter described
a dirt pile and barricades on the road in question that, in the
opinion of the New Glarus EMS, needed to be removed to increase
accessibility. The letter made no explicit reference to a 14-
foot easement requirement.
¶6 Attorney Merry also met with the OLR's district
committee. At a meeting on November 11, 2009, he was asked
about the source of the information for the purported requests
from the fire department and EMS for a 14-foot easement.
Attorney Merry claimed he did not recall any specific individual
who provided this information. In other responses, he stated
that "everyone knew" that the EMS and fire department requested
14-foot wide easements.
¶7 On December 29, 2011, the OLR filed a complaint
alleging that Attorney Merry knowingly made a false statement of
fact or law to a tribunal or failed to correct a false statement
of material fact or law previously made to the tribunal in
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No. 2011AP3009-D
violation of SCR 20:3.3(a)(1)2 (Count One), and that he violated
SCR 22.03(6)3 and SCR 20:8.4(h)4 by failing to cooperate with the
OLR's investigative committee (Count Two). The OLR sought a 60-
day suspension and full costs, which total $13,727.71 as of
September 27, 2013.5
¶8 Referee John Decker conducted a one-day evidentiary
hearing on September 11, 2012, and rendered a report on
January 2, 2013.6
2
SCR 20:3.3(a)(1) states a lawyer shall not knowingly "make
a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer; . . . ."
3
SCR 22.03(6) provides:
In the course of the investigation, the
respondent's wilful failure to provide relevant
information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a
disclosure are misconduct, regardless of the merits of
the matters asserted in the grievance.
4
SCR 20:8.4(h) states it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by
SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or
SCR 22.04(1); . . . ."
5
The OLR has advised the court that it does not seek
restitution. Attorney Merry filed objections to the OLR's costs
on February 14, 2013, and October 3, 2013. We need not address
those objections in light of our disposition of this case.
6
We appointed Referee Decker on February 20, 2012.
Attorney Merry, initially proceeding pro se, moved for judgment
on the pleadings or, in the alternative, for summary judgment.
Both parties submitted affidavits, discovery responses, and
briefs. The referee conducted a hearing and denied
Attorney Merry's motion. Attorney Merry then retained counsel
and the matter proceeded to the evidentiary hearing.
4
No. 2011AP3009-D
¶9 The referee found that Attorney Merry did not make a
misrepresentation to the court when he stated that his clients
wanted an easement width of 14 feet for necessary access for
fire department and EMS vehicles and equipment.7 The referee
recommended dismissal of Count One. The OLR did not appeal this
recommendation and we accept the referee's findings and
recommendations relating to this count. Count One is therefore
dismissed.
¶10 The referee, however, determined that Attorney Merry
willfully failed to provide relevant information and answer
questions fully in the course of the OLR investigation, in
violation of SCRs 22.03(6) and 20:8.4(h), as alleged in Count
Two. He recommended a public reprimand and costs.
¶11 Attorney Merry appeals. The issue before us is
whether Attorney Merry failed to cooperate with the OLR's
investigation into his alleged misconduct and, if so, what
sanction is appropriate.
7
For example, on July 18, 2008, Attorney Merry filed a
brief in the circuit court in which he wrote the following:
In this case, the easement is established for ingress
and egress to the lands in question. Ingress and
egress include the necessity of accommodating
emergency services such as fire trucks and ambulances.
Accordingly, the easement should be established 14'
wide as the stated measure for efficiently conveying
ambulances and fire trucks into the neighborhood.
The referee found that this and other such statements were
made as a matter of Attorney Merry's belief at the time the
statement was made, and were based upon reasonably diligent
investigation.
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No. 2011AP3009-D
¶12 The OLR complaint alleged that Attorney Merry gave
four different answers when he was asked to identify the source
of the 14-foot easement request. Attorney Merry maintains that
he simply did not remember who told him that 14 feet was the
required width for EMS vehicles.
¶13 At the evidentiary hearing, the OLR presented the
telephone testimony of a district committee member who was
present at the November 2009 meeting. He recalled
Attorney Merry's failure to furnish a name in response to
questions about the source of the information pertaining to a
14-foot requirement for EMS vehicles and also recalled Attorney
Merry saying that "everyone knows" about the 14-foot easement
requirement. He stated that he thought Attorney Merry was
"evasive" when he failed to provide the name of any individual.
¶14 When asked whether Attorney Merry's responses to this
repeated question were "consistent with each other," the witness
answered, "No. On occasion they would vary from one question to
the next. That's about all I can remember with regard to whether
they varied or not."8
8
When pressed to explain how Attorney Merry's statements
were inconsistent, the witness testified:
A. The inconsistent statements were, one,
he didn't provide us with the names of
the persons who provided the
information to him, and then he made a
statement that everybody knows that the
easement is 14 feet wide. Those I
believe were inconsistent.
Q. So he could not remember the name of
particular people and everybody knows
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No. 2011AP3009-D
¶15 The referee acknowledged that the evidence offered in
support of this charge was "not extensive." He noted the OLR
had failed to show with any specificity that Attorney Merry had,
in fact, given "four different answers" during his meeting with
the committee, as alleged in the complaint. The referee deemed
Attorney Merry "generally cooperative" and "credible and
reliable" with respect to other testimony.
¶16 However, the referee stated, "I have not found
[Attorney] Merry's claim of a memory lapse to be credible, where
[as became apparent during the evidentiary hearing] his own
client in the underlying litigation was a principal source of
his information," pertaining to the need for a 14-foot easement.
Attorney Merry's client, K.F., had spent 17 years on the
New Glarus Fire Department. Accordingly, the referee concluded
it's 14 feet. How are those two
statements inconsistent?
A. I believed that he was being evasive in
not providing the names of the people.
Q. I understand what your conclusions
were. I'm looking for testimony about
the specific statements made by Mr.
Merry so that the Referee can determine
whether in fact he made inconsistent
statements. So I'm asking you in what
way were the two statements that you
ascribe to Mr. Merry inconsistent: One
being that he could not remember names
and the other being everybody knows
that 14 feet is required? How are
those inconsistent?
A. I think they were inconsistent in that
if everybody knows, then he would have
a name of a person who provided that
information to him.
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No. 2011AP3009-D
that "[Attorney] Merry willfully failed to provide relevant
information, and [willfully] failed to answer questions fully in
the course of an OLR investigation" and "failed to cooperate in
the investigation of a grievance filed with the OLR," thereby
violating SCRs 22.03(6) and 20:8.4(h).
¶17 We review a referee's findings of fact subject to the
clearly erroneous standard. See In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675
N.W.2d 747. We review the referee's conclusions of law de novo.
Id.
¶18 Our rules require an attorney being investigated for
professional misconduct to fully and fairly disclose all facts
and circumstances pertaining to the alleged misconduct.
SCR 22.03(6). This obligation exists "regardless of the merits
of the matters asserted in the grievance." Id. The fact that
Attorney Merry is exonerated of the claim that he made a false
statement to the court does not excuse him of his obligation to
cooperate with the OLR's inquiries. Cooperation with
disciplinary investigations conducted by district grievance
committees and the OLR is essential to the effectiveness of such
investigations, and a lawyer's failure to cooperate constitutes
serious misconduct.
¶19 Attorney Merry suggests that the referee's credibility
determination is clearly erroneous because it was based on an
inference derived from the fact that Attorney Merry's own client
had told him about the easement widths such that he must have
known the source of the information. He maintains that he
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No. 2011AP3009-D
responded to the district committee's questions as best as he
was able.
¶20 Ordinarily, we defer to a referee's findings of fact.
In re Disciplinary Proceedings Against Carroll, 2001 WI 130,
¶29, 248 Wis. 2d 662, 636 N.W.2d 718. While a close call, we
will not deviate from that practice here. The referee
unequivocally determined that Attorney Merry's explanation was
not credible. The referee inferred that Attorney Merry was
disinclined to aid the investigative committee with claims he
had deemed "absurd." We will not deem the referee's findings
clearly erroneous.
¶21 We remind Attorney Merry that our rules require
lawyers to cooperate with the OLR in its investigations, even
when, as here, the underlying grievance turns out to lack merit.
Frustration with an investigation the lawyer believes lacks
merit does not excuse noncooperation.
¶22 However, as the referee observed, this was a weak case
in many respects. There is evidence the district committee
thought the grievant, J.F., was not credible. At oral argument
to this court we pressed counsel for the OLR to explain why it
was so important to know who, specifically, told Attorney Merry
that a 14-foot easement was needed when, apparently, that
assertion was entirely correct, as confirmed by deposition
testimony of each of the chiefs of the New Glarus Fire
Department and New Glarus EMS in April 2012. The OLR's
explanation, that it pursued prosecution of Count One because
only one specific individual was authorized to communicate this
9
No. 2011AP3009-D
information to Attorney Merry, strikes us as hyper-technical and
unconvincing.
¶23 The weakness of the OLR's case makes it an outlier.
The OLR typically pursues claims of failure to cooperate in
cases where there is little dispute that the lawyer failed to
cooperate. Typically, the failure to cooperate charge
accompanies a determination that the lawyer engaged in some
underlying misconduct. Here, however, Attorney Merry is
exonerated of any underlying misconduct and the information he
allegedly withheld from the OLR——the name of the specific person
who told him an apparently correct piece of information——appears
to be of dubious relevance. While the referee correctly
concluded that a violation of SCRs 22.03(6) and 20:8.4(h)
occurred, we deem it a de minimis one, insufficient to warrant
imposing the recommended discipline with its attendant costs of
$13,727.71. We therefore dismiss the complaint.
¶24 IT IS ORDERED that the disciplinary complaint filed
against Roger G. Merry, is dismissed. No costs.
10
No. 2011AP3009-D.ssa
¶25 SHIRLEY S. ABRAHAMSON, C.J. (concurring in part and
dissenting in part). I agree with the referee and the per
curiam opinion that Count 1 of the complaint should be
dismissed.
¶26 The referee concluded that the OLR proved a violation
of Count 2, failing to cooperate with the OLR investigation. In
contrast, the per curiam opinion dismisses Count 2. I agree
with the referee. I part company with the per curiam opinion on
Count 2.
¶27 Attorney Merry is essentially asking this court to
believe him although the referee who saw and heard Attorney
Merry did not. Credibility is a finding of fact. The referee
said he didn't find Attorney Merry credible. The court must
accept the referee's findings of fact unless they are clearly
erroneous. See per curiam op., ¶17.
¶28 Nothing in the record or the referee's report warrants
disregarding the referee's carefully analyzed and carefully
articulated credibility determination.
¶29 Consequently, the per curiam opinion must and does
accept the referee's finding that Attorney Merry is not
credible. To avoid this factual finding, the per curiam opinion
declares the violation to be "de minimis" and "hyper-technical."
It dismisses the complaint.
¶30 A "de minimis" or "hyper-technical" violation is, in
my opinion, still a violation (whatever the meaning of these
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No. 2011AP3009-D.ssa
terms that appear to set gradations of violations or shades of
credibility).
¶31 I am persuaded that a public reprimand, recommended by
the referee, is appropriate in the present case (even though
Attorney Merry has been disciplined on five prior occasions).
The extent, nature, and circumstances of the violation are, as I
see it, relevant in determining the discipline to be imposed.
The referee has provided a thoughtful analysis and
recommendation. I would follow it.
¶32 For the reasons stated, I write separately.
¶33 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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No. 2011AP3009-D.ssa
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