Office of Lawyer Regulation v. Roger G. Merry

                                                             2024 WI 16

                  SUPREME COURT OF WISCONSIN
CASE NO.:              2022AP35-D


COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Roger G. Merry, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Roger G. Merry,
                                 Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST MERRY

OPINION FILED:         April 24, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
Per curiam. ZIEGLER, C.J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, HAGEDORN, KAROFSKY, and PROTASIEWICZ,
JJ., joined.
NOT PARTICIPATING:



ATTORNEYS:
                                                                        2024 WI 16

                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.   2022AP35-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,
                                                                APR 24, 2024
      v.
                                                                 Samuel A. Christensen
                                                                Clerk of Supreme Court
Roger G. Merry,

           Respondent.




      ATTORNEY     disciplinary       proceeding.       Attorney's           license
revoked.



      ¶1   PER CURIAM.        We review the report of Referee Edward

E. Leineweber, issued after an evidentiary hearing, in which he

concludes that Attorney Roger G. Merry committed two counts of

professional     misconduct    as   alleged   by     the    Office      of    Lawyer

Regulation (OLR).     Referee Leineweber recommends that the court

suspend Attorney Merry's license for a period of one year and
                                                                        No.    2022AP35-D



that we order Attorney Merry to pay the full costs of this

disciplinary proceeding.

      ¶2      Neither party has appealed from the referee's report

so we review this matter pursuant to Supreme Court Rule (SCR)

22.17(2).1     After completing our review, we approve the referee's

findings and conclusions.            With respect to the discipline to be

imposed, we consider the recommended one-year suspension to be

too   light    a    sanction.       Revocation      is    in    order    for   Attorney

Merry's egregious misconduct.               We order Attorney Merry to pay

the full costs of this proceeding.                       We accede to the OLR's

conclusion that restitution is not warranted.

      ¶3      Attorney      Merry    was    admitted       to    practice       law   in

Wisconsin in 1981.          He has a lengthy disciplinary history.                     In

1990, Attorney Merry was privately reprimanded for engaging in a

conflict of interest.           Private Reprimand, No. 1990–26.2               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




      1SCR 22.17(2) provides: "If no appeal is filed timely, the
supreme court shall review the referee's report; adopt, reject
or modify the referee's findings and conclusions or remand the
matter to the referee for additional findings; and determine and
impose appropriate discipline.    The court, on its own motion,
may order the parties to file briefs in the matter."
      2   Electronic version not available.

                                            2
                                                                           No.     2022AP35-D



Reprimand of Roger G. Merry, No. 1993–3.3                           In 1994, Attorney

Merry was privately reprimanded for failing to keep a client

reasonably    informed     about     the       status    of    a    matter.         Private

Reprimand, No. 1994–8.4            In 1999, Attorney Merry was publicly

reprimanded for engaging in a conflict of interest.                                  Public

Reprimand of Roger G. Merry, No. 1999–1.5                           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.       2008–9.6        Attorney

Merry's     law    license     is     also        subject          to      administrative

suspensions for failure to pay Wisconsin State Bar dues and

failure to file a trust account certification.

    ¶4      This    disciplinary       matter      concerns          Attorney       Merry's

publication of a book regarding his former client, M.S.                                 This

matter    began    with    three     counts,      one     of       which    the     referee

dismissed before the evidentiary hearing at the OLR's request.




    3  Electronic          version          available          at
https://compendium.wicourts.gov/app/51417a2b8d566b1c706f83303424
783b34565c38.continue.
    4    Electronic version not available.
    5  Electronic          version          available          at
https://compendium.wicourts.gov/app/12575b0f2a8b1a496c420a41151a
8e486b127922.continue.
    6  Electronic          version          available          at
https://compendium.wicourts.gov/app/334e1203175d7659478d85166513
148f3883286a.continue.

                                           3
                                                                         No.     2022AP35-D



The   referee's       report       and    the     exhibits        received        at     the

evidentiary hearing may be summarized as follows.

      ¶5     Attorney Merry served as M.S.'s defense attorney in

her   2006   trial    on   charges       including         first-degree      intentional

homicide.      M.S.     was    convicted        and    sentenced       and     remains   in

prison to this day.

      ¶6     In November 2013, Attorney Merry sent M.S. a letter,

received into evidence at the evidentiary hearing, stating the

following:

           There remains a debt for my representation of you
      of approximately $19,000.00. I am willing to call it
      even if you would sign a release so the public
      defender could give me their copy of the transcript,
      and also sign a waiver of attorney/client privilege.

           The reason I am willing to write off the bill in
      exchange for the above, is I am planning on publishing
      a book about the case.

           If you are unwilling to sign these two documents,
      I will have no choice but to sue your grandparents for
      the balance of the fee.     Accordingly, if this meets
      with your approval, please sign both originals before
      a witness, have the witness sign it, and return it to
      me in the enclosed, self-addressed stamped envelope.
      The extra copies are for your file.
      ¶7     Attorney       Merry        enclosed          with   this       letter       an

"Authorization for Release of Transcripts" from the State Public

Defender's    Office       (SPD)    to    him,        as   well   as    a    "Waiver     of

Attorney-Client Privilege," which called for M.S. to "waive all

attorney-client privilege" and to "authorize my former attorney,

Roger Merry, to publish any and all information he has regarding

me, including, but not limited to, everything I have said to him


                                            4
                                                                           No.    2022AP35-D



which       might      have     been      privileged       by     the    attorney-client

relationship."          M.S. did not sign either document.

       ¶8     In March 2015, Attorney Merry sent the SPD's Office a

letter,      received         into    evidence      at    the     evidentiary     hearing,

stating that he knew the SPD's Office considered transcripts to

be the property of its clients; that he wanted a copy of M.S.'s

trial transcripts; that she "did not consent to give me a copy

since I obtained a judgment against her in [circuit court] for

$18,000"; and that he was "hoping to execute the judgment and

obtain a copy or the original of the transcripts."                                He asked

where the transcripts might be, and whether the SPD's Office

"had    a    preferred        method      of   delivery     to     me   pursuant     to   an

execution."         Attorney Merry copied M.S. on this letter.

       ¶9     The      SPD's    Office       responded     with    a    letter,   received

into    evidence       at     the    evidentiary     hearing,       informing     Attorney

Merry that it could not send documents from M.S.'s file without

her permission.

       ¶10    Ultimately,            in   August    2020,       Attorney    Merry    self-
published a book about his representation of M.S.                           The book was

available at public libraries and for purchase at a local book

store       and   an    online        book     retailer.         Attorney    Merry     used

information relating to his representation of M.S. to write the

book.       To provide details about the case in the book, Attorney

Merry drew from his own review of court records located at the

circuit courthouse, as well as from his own recollection of

events, chambers discussions or sidebars, and discussions with
the     prosecutor,            other         attorneys,     experts,        or      private
                                                5
                                                                        No.     2022AP35-D



individuals——some of which might have occurred in the presence

of others, but were not made in open court or in media coverage

of the case at the time of the prosecution or its immediate

aftermath.7

     ¶11    While       the   crime        and     the     subsequent           criminal

prosecution had generated much publicity and discussion within

the local community, it had generally subsided in the 14 years

between    those    events         and    the     publication      of         the    book.

Publication of the book revived public discussion of the events

surrounding the crime and M.S.'s criminal prosecution.

     ¶12    M.S. suffered psychological harm from Attorney Merry's

unsuccessful     attempt      to    obtain       her   consent     to    his        use   of

information concerning her case, as well as from his publication

of the book about her case without her consent.                     The effects of

the publication of the book included:

         damage to her relationships with her children, mother,

          siblings, and other family members who, previous to the

          publication of the book, were supportive of her;
         fear   that   the   book       would    be   available    in        the   prison

          library and be read and discussed by prison staff and



     7 We note that excerpts of Attorney Merry's book were
received into evidence at the evidentiary hearing.     In the
"Acknowledgements" section of his book, Attorney Merry wrote
that "[a]ll matters in this book not derived from my own
observation were taken from over five thousand pages of police
reports and over two thousand five hundred pages of court
reporter transcripts. All statements made by myself and others
were made in anticipation of litigation."

                                           6
                                                                         No.     2022AP35-D



          fellow       inmates,      disrupting       her     relationships       in     the

          institution and undermining her well-being there;

         revelation of intimate private details of her personal

          and family history;

         reviving the stress of events from the commission of the

          crime through her trial, conviction, and sentencing;

         concern       that   the     book       would     circulate     in   her      home

          community and subject her children and family to social

          ostracism or abuse; and

         concern that the publication of the book would adversely

          affect her chances of eventually obtaining some form of

          relief through further court proceedings.

    ¶13        M.S. sought and received psychological treatment to

address    the        emotional     trauma        caused    by     the   contacts       from

Attorney Merry prior to publication and from circulation of the

book in the community following the publication.

    ¶14        As pertinent here, the OLR's complaint alleges that:

         by using information to write and publish a book relating
          to    his    representation        of    M.S.     that   was   not     generally

          known, Attorney Merry violated SCR 20:1.9(c)(1) (Count

          1); and

         by    revealing      in   the   book      information      relating      to    his

          representation of M.S. without her permission, Attorney

          Merry violated SCR 20:1.9(c)(2) (Count 2).

    ¶15        After    holding      an   evidentiary         hearing,     the    referee

determined that the OLR had proven the misconduct alleged in
both counts.          The applicable Wisconsin Supreme Court Rule is SCR
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                                                               No.    2022AP35-D



20:1.9,    "Duties   to     former      clients."    That   rule     reads,   in

pertinent part:

         (c) A lawyer who has formerly represented a
    client in a matter or whose present or former firm has
    formerly represented a client in a matter shall not
    thereafter:

         (1)    use    information   relating   to    the
    representation to the disadvantage of the former
    client except as these rules would permit or require
    with respect to a client, or when the information has
    become generally known; or

         (2)   reveal    information  relating  to   the
    representation except as these rules would permit or
    require with respect to a client.
    ¶16     In disputing the claimed SCR 20:1.9(c)(1) violation

alleged in Count 1 before the referee, Attorney Merry argued

that the information relating to the representation of M.S. that

he relied upon in writing his book had become "generally known,"

and therefore fell outside the scope of the rule.                   The referee

disagreed, noting that in Wisconsin Formal Ethics Opinion EF-20-

02,8 the State Bar Professional Ethics Committee explained that

information is "generally known" for purposes of the rule only
if widely recognized by members of the public in the relevant

geographic    area     or      within    the    former   client's     industry,

profession, or trade.          Id. at 6 (citing American Bar Association

Standing   Committee      on    Ethics    and   Professional   Responsibility

Formal Opinion 479).            The referee wrote that "[a]t best the

    8  Full text of the Wisconsin Formal Ethics Opinion EF-20-02
is                           found                          here:
https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-
20-02%20Former%20Client%20Cross%20Examination%20-%20FINAL.pdf.

                                          8
                                                                           No.    2022AP35-D



record    in    this     matter       might   demonstrate        that      some    of    the

personal information and detail [used by Attorney Merry in the

book]    was    previously      known    by       some    others,    but     it   does    not

support a finding that it was 'generally known.'"

       ¶17     The    referee       additionally         rejected    Attorney      Merry's

argument       that     his     use     of        information       relating       to    the

representation of M.S. in his book did not "disadvantage" M.S.,

as is required for an SCR 20:1.9(c)(1) violation, because the

book    asserted       her    innocence       of    the    underlying        crimes,     and

because she allegedly suffered from mental health issues prior

to     publication      of    the     book.         The    referee     reasoned         that,

regardless of the particulars of Attorney Merry's account of the

crimes in the book or the status of M.S.'s mental health prior

to   publication        of    the    book,    M.S.       was   disadvantaged       by    the

psychological         harm    she    suffered      from    his   use    of    information

relating to his representation of her.

       ¶18     The referee also rejected Attorney Merry's claim that

he neither used nor revealed former-client confidences under SCR
20:1.9(c) in that the information related to his representation

of M.S. in his book fell outside the scope of the attorney-

client    privilege.          The     referee      disagreed,       reasoning     that    an

attorney's ethical duty to keep client confidences is broader

than the evidentiary concern of attorney-client privilege.

       ¶19     Ultimately, the referee recommended that a one-year

suspension of Attorney Merry's law license is merited based on

his disciplinary history, the "egregious facts of this case,"


                                              9
                                                                               No.    2022AP35-D



the precedent cited by OLR in its briefing to the referee, and

the court's policy of progressive discipline.

      ¶20     Attorney Merry has not appealed the referee's report

and recommendation.           Accordingly, this court reviews the matter

pursuant to SCR 22.17(2), which provides that if no appeal is

timely   filed,      the     court    shall        review      the    referee's         report;

adopt, reject, or modify the referee's findings and conclusions

or remand the matter to the referee for additional findings; and

determine and impose appropriate discipline.

      ¶21     When we review a referee's report, we will affirm a

referee's findings of fact unless they are found to be clearly

erroneous, but 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          to    impose          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.

      ¶22     Upon   careful     review           of   the     matter,     we        adopt   the

referee's findings of fact and conclusions of law.                                     Attorney

Merry has not contested the facts found by the referee, and

after reviewing the record ourselves, we find no basis in the

record   to    conclude      that     the     referee's         findings        are     clearly

erroneous.      And for the reasons set forth below, we agree with

the conclusions of law that flow from the referee's findings of


                                             10
                                                                    No.    2022AP35-D



fact; namely, that the OLR established by clear and convincing

evidence that Attorney Merry violated SCR 20:1.9(c)(1) and (2).

     ¶23    Our ethical rules make clear that attorneys owe a duty

of confidentiality to both current and former clients.                      Supreme

Court Rule 20:1.6, titled "Confidentiality," prohibits a lawyer

from revealing information relating to the representation of a

client     unless   the      client    gives   informed      consent,       or   the

disclosures     are        impliedly    authorized      to    carry        out   the

representation,       or     the   disclosures    are     authorized        by   SCR

20:1.6(b)9 or (c).10          Supreme Court Rule 20:1.9, quoted above,

     9 SCR  20:1.6(b)   provides:     "A   lawyer shall reveal
information relating to the representation of a client to the
extent the lawyer reasonably believes necessary to prevent the
client from committing a criminal or fraudulent act that the
lawyer reasonably believes is likely to result in death or
substantial bodily harm or in substantial injury to the
financial interest or property of another."
     10   SCR 20:1.6(c) provides:

          (c) A lawyer may reveal information relating to
     the representation of a client to the extent the
     lawyer reasonably believes necessary:

          (1) to prevent reasonably                  likely        death    or
     substantial bodily harm;

          (2) to prevent, mitigate or rectify substantial
     injury to the financial interests or property of
     another that is reasonably certain to result or has
     resulted from the client's commission of a crime or
     fraud in furtherance of which the client has used the
     lawyer's services;

          (3) to secure legal            advice   about      the    lawyer's
     conduct under these rules;

          (4) to establish a claim or defense on behalf of
     the lawyer in a controversy between the lawyer and the
                                        11
                                                                   No.        2022AP35-D



extends    this     duty    of        confidentiality       to    former-clients'

confidential information.

     ¶24   Supreme Court Rule 20:1.9(c)(1) governs an attorney's

use of former clients' confidential information.                    It prohibits

an   attorney       from      using      information         relating         to      the

representation of a former client "to the disadvantage of the

former client except as these rules would permit or require with

respect    to   a   client,      or    when   the    information        has        become

generally known."

     ¶25   Supreme Court Rule 20:1.9(c)(2) governs an attorney's

revelation of a former client's confidential information.                              It

prohibits an attorney from revealing information relating to the

representation of a former client "except as these rules would

permit or require with respect to a client."

     ¶26   Applying      these    provisions        to     the   referee's          well-

supported factual findings, it is clear that Attorney Merry both

revealed   M.S.'s    confidential        information       and   used    it    to     her

disadvantage.       He     did   the     latter     when    he   drafted       a     book
containing M.S.'s confidences after she refused to assist him in

     client, to establish a defense to a criminal charge or
     civil claim against the lawyer based upon conduct in
     which the client was involved, or to respond to
     allegations in any proceeding concerning the lawyer's
     representation of the client;

           (5) to comply with other law or a court order; or

          (6) to detect and resolve conflicts of interest,
     but only if the revealed information would not
     compromise the attorney-client privilege or otherwise
     prejudice the client.

                                         12
                                                                          No.   2022AP35-D



the    endeavor,          causing    her    psychological       harm.      As    for   the

former, he revealed the confidential information when he made

the book available for public distribution and purchase.

       ¶27    It     is    further    clear,      based   on    the     referee's   well-

supported factual findings, that none of the exceptions to the

duty    of        former-client       confidentiality          apply.       M.S.    never

provided informed consent to Attorney Merry's use or revelation

of     her    confidential          information.          The     "generally        known"

exception         allowing    use    of    confidential        information      does   not

apply given that, as found by the referee, the information used

by Attorney Merry was not widely recognized by members of the

public in the relevant geographical area.                          See State Bar of

Wisconsin Professional Ethics Committee, Formal Opinion EF-20-02

(June 25, 2020).              There has been no claim that any of the

exceptions contained within SCR 20:1.6(b) and (c) apply.                               See

n.9-10.       And the referee correctly observed that the scope of

information protected by the ethical duty of confidentiality is

broader      than     that    protected      by    the    evidentiary      doctrine     of
attorney-client privilege.11                 Thus, Attorney Merry's insistence


       11   See    SCR    20:1.6,    cmt.    3,   which    explains,       in   pertinent
part:

       The   attorney-client   privilege   and   work-product
       doctrine apply in judicial and other proceedings in
       which a lawyer may be called as a witness or otherwise
       required to produce evidence concerning a client. The
       rule of client-lawyer confidentiality applies in
       situations other than those where evidence is sought
       from the lawyer through compulsion of law.         The
       confidentiality rule, for example, applies not only to
       matters communicated in confidence by the client but
                                             13
                                                                      No.   2022AP35-D



to   the    referee      that    he   never     violated    the    attorney-client

privilege, even if true, does not prove that he satisfied his

more robust ethical duty of confidentiality.

      ¶28   We     therefore       conclude      that     this     record     clearly

establishes        that    Attorney        Merry      committed       the     charged

misconduct.        Our    rules    prohibited      him   from     revealing    M.S.'s

confidential information or using it to her disadvantage (he did

both) unless special circumstances apply (none do).

      ¶29   We turn now to the appropriate level of discipline to

impose.       Sources       of     guidance      in     determining       appropriate

sanctions include prior case law, the American Bar Association

Standards    for    Imposing      Lawyer    Sanctions,      and    aggravating     and

mitigating factors.             See Matter of Disciplinary Proc. Against

DeLadurantey, 2023 WI 17, ¶52, 406 Wis. 2d 62, 985 N.W.2d 788.

      ¶30   Turning first to our own prior case law, we discover

that the misconduct here is in a league of its own.                         In In re

Disciplinary Proceedings Against Harman, 2001 WI 71, 244 Wis. 2d

438, 628 N.W.2d 351, we imposed a six-month suspension on an
attorney for eight counts of misconduct that included revealing

his client's medical records to a prosecutor who was prosecuting

the client's cohabitant; we found a violation of the duty of

client confidentiality even though the records had been publicly

filed in a prior lawsuit.              The attorney had been reprimanded

three   times      previously.        In   In    re   Disciplinary        Proceedings


      also    to   all    information    relating                    to      the
      representation, whatever its source.

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                                                                           No.      2022AP35-D



Against    Marick,       204    Wis.    2d   280,     554    N.W.2d     204      (1996),    we

imposed     a    nine-month          suspension,       as    reciprocal          discipline

identical to that imposed by the Minnesota Supreme Court, for an

attorney's use of confidential information concerning a client's

proposed business acquisition to profit in the stock market.

The attorney had no prior discipline.                   Finally, in In re Peshek,

2011 WI 47, 334 Wis.2d 373, 798 N.W.2d 879, 881, we imposed a

60-day suspension, as reciprocal discipline identical to that

imposed     by    the     Illinois       Supreme      Court,     for      an     attorney's

misconduct that included writing blog posts about her job that

contained       confidential         information       about     her      clients,     whose

identities she made inadequate efforts to conceal.                             The attorney

had no prior discipline.

    ¶31      Here, Attorney Merry's conduct is considerably more

serious,        and     his     disciplinary          history      considerably          more

troubling, than that involved in Harman, Marick, and Peshek.                                It

is bad indeed for an attorney to share a client's confidential

medical information with another attorney (Harman), or to use a
client's    confidential            business      information      to     profit     from    a

stock transaction (Marick), or to expose client confidences in

personal blog posts (Peshek).                  But it is hard to imagine a more

flagrant    violation          of   20:1.9(c)(1)       and   (2)    than       an   attorney

attempting       to   both      publicize       and    profit      from    his      client's

confidences       against      the     client's     express     wishes,        as   Attorney

Merry did here.         Such actions destroy the trust that is vital to

the client-lawyer relationship and erode public confidence in
the integrity of the legal profession.                          And Attorney Merry's
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                                                                  No.     2022AP35-D



disciplinary history——which at five previous reprimands is more

extensive than any of those involved in the above cases——clearly

shows     that    his    misbehavior      was   not     a    one-off     incident.

Considerably more discipline is therefore merited than what we

imposed in Harman, Marick, and Peshek.

    ¶32        We turn next to the American Bar Association Standards

for Imposing Lawyer Sanctions ("ABA Standards").                 Although these

standards are in no way binding on this court, they provide

helpful     direction        in   assigning     an     appropriate       sanction.

Standard 4.21 applies here.            It reads:

    4.21 Disbarment is generally appropriate when a
    lawyer, with the intent to benefit the lawyer or
    another, knowingly reveals information relating to
    representation of a client not otherwise lawfully
    permitted to be disclosed, and this disclosure causes
    injury or potential injury to a client.
Annotated Standards for Imposing Lawyer Sanctions, Standard 4.21

(Ellyn S. Rosen ed., 2nd ed. 2019).                    The Annotation to ABA

Standard       4.21   explains    that   disbarment     is    warranted    when   a

lawyer    "knowingly     abuses"    the    client's     trust   and     "knowingly

reveals    confidential       client     information    improperly       with    the

intent    of     achieving    personal    benefit     and    causing    injury    or

potential injury to the client."

    ¶33        That is precisely what happened here.             Attorney Merry

improperly revealed M.S.'s confidential information and used it

to her disadvantage, causing her extensive psychological harm——

all so that he could self-publish and sell a book devoted to his

musings about the case in which he represented her.                    This was an
intentional,       self-benefitting       violation    of    client    confidences

                                         16
                                                                            No.     2022AP35-D



within     the    meaning       of   the    standard.        We    therefore        make    an

initial      determination           that    revocation12        is   the     appropriate

sanction in this case, subject to modification as a result of

aggravating or mitigating factors.

      ¶34     Several      aggravating        factors      are    present.        As      noted

above, Attorney Merry has a considerable disciplinary history.

See   ABA    Standard          9.22(a).       His    motivation       was    selfish;       he

prioritized his interest in self-publishing a book above M.S.'s

confidentiality interest and his ethical duty to protect it.

See ABA Standard 9.22(b).                 He has not acknowledged the wrongful

nature      of    his     conduct,     see     ABA    Standard        9.22(g);       to    the

contrary, he portrayed himself to the referee as a past and

present victim of an unfair disciplinary system and insisted

that "I don't care what the likes of OLR or judges or lawyers

say   about       me     and    my   ethics    because      they're      wrong.           It's

motivated        for    improper     purposes,       and   it     doesn't     add    to    the

discussion.            And it, in fact, disgraces the practice of law."

M.S., as an inmate, was a vulnerable victim.                          See ABA Standard
9.22(h).         Finally, Attorney Merry had decades of experience in

the practice of law, and thus should have known better than to

act as he did.           See ABA Standard 9.22(i).

      ¶35     There is little on the mitigating side of the scale.

Attorney Merry appears to have generally cooperated with the OLR

during this disciplinary process.                      See ABA Standard 9.32(e).


       The ABA Standards use the term "disbarment"; Wisconsin
      12

uses the term "revocation." See SCR 21.16(1m)(a).

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And his disciplinary history is relatively remote in time.                       See

ABA Standard 9.32(m).

    ¶36     Although there is no mathematical formula for weighing

these factors, we conclude that the many aggravating factors

outweigh the few mitigating factors present in this case.                         We

therefore    conclude      that   revocation       is    appropriate    under    the

facts of this case.

    ¶37     We    note    that    this    result    is   consistent     with    that

reached in an out-of-state case with reasonably analogous facts.

In In re Smith, 991 N.E.2d 106 (Ind. 2013), the Indiana Supreme

Court disbarred an attorney who wrote a book that purported to

be a true account of his personal and professional relationship

with a former client, who was active in politics and at one

point held a high-level job in the federal government.                     See id.

at 107.      The attorney's professed motivation for writing the

book was at least in part to recoup legal fees the former client

owed him and money the former client had obtained from him over

the years.       Id.     The Indiana Supreme Court determined that the
attorney committed multiple ethical violations in writing the

book,   including        the   improper    disclosure      of   details    of    his

representation of the former client.               The court wrote:

         In the book, Respondent revealed personal and
    sensitive information about [the former client] that
    was obtained in confidence as her attorney, and its
    revelation had the potential of causing her public
    embarrassment and other injury, such as impairment of
    her employment opportunities.     Respondent's selfish
    motivation in deliberately attempting to reveal this
    confidential information to a wide audience for
    monetary gain, his false statements in the book and in

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    this disciplinary matter, and his lack of any remorse
    lead   us  to   conclude   that   that   disbarment is
    appropriate for Respondent's misconduct.
The court cited ABA Standard 4.21, discussed above, as support

for this result.        Id. at 110.

    ¶38     We acknowledge that all of Attorney Merry's previous

disciplinary     matters       resulted        in      reprimands,       not     license

suspensions.     Under different facts, a suspension, rather than

revocation, might be considered a reasonable next step in the

progressive discipline process.            But when the circumstances have
called for it, we have revoked an attorney's law license for

misconduct even where (quite unlike here) the attorney had no

prior disciplinary history.           In In re Disciplinary Proceedings

Against Wright, 180 Wis. 2d 492, 509 N.W.2d 290 (1994), for

example, we concluded that an attorney's conversion of client

funds warranted license revocation, even though the attorney had

never     been   disciplined        before.            Here,        Attorney    Merry's

misconduct was arguably far more serious than that involved in

Wright:     client funds can be replaced, but the harm caused by

Attorney    Merry's     improper    use    and      very     public     revelation     of
M.S.'s    confidences     cannot    be     undone;           that    bell     cannot   be

unrung.    We therefore impose revocation as the next disciplinary

step for Attorney Merry.

    ¶39     We   turn    now   to    the       issue    of     costs,    which    total

$16,853.92 as of December 20, 2023.                     Attorney Merry does not

dispute them.     As is our normal practice, we deem it appropriate

to impose the full costs of this proceeding on him.                             See SCR
22.24(1m).

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       ¶40   We note that the OLR does not seek restitution.                             None

is ordered.

       ¶41   Finally,       we    note     that,    on    August      3,    2022,    several

months after the OLR filed its disciplinary complaint against

him, Attorney Merry filed a petition to voluntarily surrender

his law license.            The court has not yet taken action on this

petition.         We    hereby         deny   it.        See    In     re     Disciplinary

Proceedings       Against        Snyder,      127   Wis. 2d 446,           380    N.W.2d 367

(1986) (voluntary resignation is an inappropriate disposition of

a disciplinary proceeding).

       ¶42   IT IS ORDERED that the license of Roger G. Merry is

revoked, effective the date of this order.

       ¶43   IT IS FURTHER ORDERED that Roger G. Merry's August 3,

2022   petition        to   voluntarily        surrender        his    law       license    is

denied.

       ¶44   IT IS FURTHER ORDERED that, within 60 days of the date

of this order, Roger G. Merry must pay to the Office of Lawyer

Regulation the costs of this proceeding totaling $16,853.92.
       ¶45   IT IS FURTHER ORDERED that Roger G. Merry shall comply

with the requirements of SCR 22.26 pertaining to the duties of a

person    whose    license        to    practice    law    in    Wisconsin         has     been

revoked.

       ¶46   IT    IS       FURTHER       ORDERED        that    the        administrative

suspensions of Roger G. Merry to practice law in Wisconsin for

failure to pay Wisconsin State Bar dues and failure to file a

trust account certification will remain in effect until each


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reason   for   the   administrative    suspension   has   been    rectified,

pursuant to SCR 22.28(1).




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      ¶47     ANNETTE    KINGSLAND       ZIEGLER,     C.J.        (concurring).          I

concur in the court's order revoking Attorney Merry's license to

practice law in Wisconsin.           I write separately to point out that

in Wisconsin the "revocation" of an attorney's law license is

not   truly      revocation   because      the      attorney      may     petition     for

reinstatement after a period of five years.                       See SCR 22.29(2).

I believe that when it comes to lawyer discipline, courts should

say what they mean and mean what they say.                        We should not be

creating false perceptions to both the public and to the lawyer

seeking     to    practice    law    again.          See     In    re      Disciplinary

Proceedings Against Moodie, 2020 WI 39, 391 Wis. 2d 196, 942

N.W.2d 302 (Ziegler, J., dissenting).                  And, as I stated in my

dissent to this court's order denying Rule Petition 19-10, In

the   Matter      of    Amending    Supreme      Court     Rules        Pertaining      to

Permanent Revocation of a License to Practice Law in Attorney

Disciplinary       Proceedings,      I    believe     there       may     be   rare    and

unusual cases that would warrant the permanent revocation of an

attorney's license to practice law.                    See S. Ct. Order 19-10
(issued Dec. 18, 2019) (Ziegler, J., dissenting).

      ¶48     I am authorized to state that Justices REBECCA GRASSL

BRADLEY,      BRIAN     HAGEDORN,    JILL      J.    KAROFSKY,          and    JANET    C.

PROTASIEWICZ join this concurrence.




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