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One Wisconsin Attorney’s misconduct ‘in a league of its own’

Office of Lawyer Regulation

One Wisconsin Attorney’s misconduct ‘in a league of its own’

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Homicide cases make for a great Hollywood drama — a scroll through TV listings of popular legal-related dramas will attest to that. But in real life, private details about a client should not be shared by their attorney — especially without approval, according to the Wisconsin Supreme Court rules.

For Roger G. Merry, a Monroe-based attorney, doing just that cost him his law license when the Wisconsin Supreme Court revoked his license on April 24, 2024, for writing a book about a client’s case without their approval.

After Referee Edward E. Leineweber determined Merry committed two counts of professional misconduct as alleged by the Office of Legal Regulation, the state’s top court decided his suggestion of revoking Merry’s license for one year did not go far enough. The court ruled his “misconduct here is in a league of its own” and that license revocation was a necessary step.

Merry could not be reached for comment about his revocation, but told the referee during the OLR hearing, “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.”

In 2006, Merry represented a client in a First-Degree homicide case. The client was convicted, sentenced and remains in prison. In 2013, Merry reached out to the client asking them to sign a release allowing the State Public Defender’s Office to provide him a copy of the trial transcript, and to sign a waiver of attorney/client privilege. In the letter, he said if the client did so, Merry would drop the remaining $19,000 owed to him for his work on the case.

“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,” Merry wrote.

The client declined to sign.

In March 2015, Merry wrote the SPD Office a letter asking for the transcripts even though he knew they were the client’s property. He said the client “did not consent to give me a copy since I obtained a judgment against (them) 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.”

The SPD declined to release the records, citing the client’s refusal to do so.

In August 2020, Merry self-published his book about his client’s case.

‘Lies for Her Master’ then became available at public libraries, a local bookstore, and an online book retailer.

Merry allegedly used information relating to his client’s representation to write the book. He drew the book’s information and details from his own review of court records and his recollection of events, including those not made in open court, or in the media coverage at the time of the prosecution and its immediate aftermath.

While publicity had subsided in the 14 years since the original criminal prosecution, the book’s publication revived attention about the events surrounding the crime. According to court documents, the client allegedly suffered from psychological harm as a result of Merry’s attempts to obtain consent to access the court transcripts and the publication of the book.

Previous disciplinary issues

This case is not the first time he’s been reprimanded. Since being admitted to the State Bar of Wisconsin in 1981, he was reprimanded three times publicly and twice privately for his behavior.

In 1990, he was privately reprimanded for engaging in a conflict-of-interest and again in 1994, for failing to keep a client reasonably informed about the status of a matter.

Merry’s public reprimands include one in 1993 for client fund and trust account violations and making at least six intentional misrepresentations to the former Board of Attorneys Professional Responsibility (OLR’s predecessor). His second public reprimand was in 1999 for engaging in a conflict-of-interest. He was also publicly reprimanded in 2008 for allegedly engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Merry’s license is also subject to administrative suspensions for failure to pay his State Bar of Wisconsin dues and failure to file a trust account certificate.

After the OLR filed its disciplinary complaint, Merry filed a petition Aug. 3, 2022, to voluntarily surrender his law license. The State Supreme Court denied that request, writing, “the harm caused by Attorney Merry’s improper use and very public revelation of (his client’s) confidences cannot be undone; that bell cannot be unrung. We therefore impose revocation as the next disciplinary step for Attorney Merry.”

Case details

By writing a book related to his representation of his client and sharing information that was not generally known, Leineweber said Merry violated SCR 20:1.9(c)(1). The referee further ruled that when Merry went forward without the client’s permission, he violated SCR 20:1.9(c)(2).

Merry argued the information shared in his book was “generally known” and fell outside of the rule. Leineweber disagreed, noting 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. He said that was not the case with the information revealed in the book.

Merry also said the book did not “disadvantage” his former client, as is needed for the SCR 20:1.9(c)(1) violation, since it asserted their innocence of the underlying crimes and because they allegedly suffered from mental health issues prior to the book’s publication.

The referee reasoned that regardless of Merry’s books or the client’s mental state before publication they were disadvantaged by the psychological harm suffered from Merry’s use of information relating to his representation. He also rejected Merry’s argument that information shared in the book fell outside the scope of attorney-client privilege.

The court also rejected Merry’s arguments: “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.

“Merry improperly revealed the client’s confidential information and used it to their disadvantage, causing them 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 them. This was an intentional, self-benefitting violation of client confidences,” the court continued.

As for imposing the license revocation instead of a shorter suspension as recommended by the referee, the court said Merry’s conduct “is considerably more serious, and his disciplinary history considerably more troubling” and “clearly shows that his misbehavior was not a one-off incident.”

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