A Monroe attorney who did not cooperate with an attorney discipline investigation violated the rules, but the violation was so minimal that it doesn’t require discipline, the Wisconsin Supreme Court ruled Wednesday.
Roger Merry faced a public reprimand because of statements he made to an Office of Lawyer Regulation district committee. The case against him was referred to the OLR by Jerome Fabish, a New Glarus resident who was sued by clients Merry represented over a private road dispute in 2009.
Fabish said Merry misrepresented information in the case, namely that New Glarus emergency responders needed a 14-foot easement in order to pass on the road. When district committee members asked Merry where he got that number, he said he could not remember who told him that, but said that “everyone knew.”
In 2011, the OLR charged him with knowingly making a false statement of fact or law to a tribunal, or failing to correct a false statement of material fact or law previously made to a tribunal, and failure to cooperate with the OLR’s investigative committee. A referee dismissed the first count but upheld the second count and recommended a public reprimand.
Merry appealed, and the state Supreme Court overturned the referee’s decision in a 5-2 opinion in which it declined to impose any costs.
The justices, in a per curiam decision, said Merry’s behavior in front of the board technically violated state Supreme Court rules, but was a “de minimus violation” that did not warrant a reprimand.
“Attorney Merry is exonerated of any underlying misconduct,” according to the decision, “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.”
The court cautioned Merry, though, that the “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,” according to the opinion.
Merry’s attorney, Christopher Kolb of Halling & Cayo SC, Milwaukee, said his client was happy to have the case put behind him.
“I said in oral arguments that people forget like that all the time,” Kolb said. “That doesn’t make you unethical. There’s no violation for not remembering who told you something.”
Kolb said this was the first case he has seen where the justices did not impose discipline, even if they found a violation.
He said the opinion reminded him of a “dismissal with caution,” which was an option for the court under the previous attorney discipline system under the Board of Attorneys Professional Responsibility. A “dismissal with caution” was pinpointed as unnecessary in an October 1999 study on the BAPR.
According to the study, “Since cautions do not constitute discipline, it is hard to see how they may be beneficial to the public in a meaningful sense. If a lawyer has violated the rules, then protection of the public dictates that the lawyer should receive some form of sanction, or be referred to the alternatives to discipline program …”
Under the current system, Kolb said, attorneys who think their clients committed a technical violation argue it early in the case, in the hopes their client will then receive a private reprimand or enter into a deferred prosecution agreement.
“It’s unusual,” he said, “for that argument to wind up in a decision in the end of the case.”
OLR Director Keith Sellen said state Supreme Court rules mandate, however, that those accused of dishonesty – such as Merry – cannot be referred to a diversion program.
Dean Dietrich, an attorney with Ruder Ware LLSC, Wausau, who handles attorney discipline cases, also said it’s rare for the court to dismiss a case despite noting that an attorney technically violated the rules. In such cases, he said, he more commonly sees diversion agreements, instead.
Merry also has offices in Baraboo, West Allis, Janesville and Stoughton. He has been publicly reprimanded three times and privately reprimanded twice since he was admitted to the State Bar in 1981.
In its opinion, the court noted “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,” according to the opinion. “Typically, the failure to cooperate charge accompanies a determination that the lawyer engaged in some underlying misconduct.”
Chief Justice Shirley Abrahamson, in a dissent joined by Justice Ann Walsh Bradley, wrote that she agreed with the majority’s decision in part, but disagreed that the minor violation did not warrant discipline.
“A ‘de minimis’ or ‘hyper-technical’ violation is, in my opinion, still a violation,” Abrahamson wrote. “I am persuaded that a public reprimand, recommended by the referee, is appropriate in the present case.”Follow @eheisigWLJ