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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 prior
occasions. 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 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.
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¶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 violation
of SCR 20:3.3(a)(1) (Count One), and that he
violated SCR 22.03(6) and SCR 20:8.4(h) 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.
¶8 Referee John Decker conducted a one-
day evidentiary hearing on September 11,
2012, and rendered a report on January 2,
2013.
¶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. 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.
¶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."
¶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 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).
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¶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 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 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.
¶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
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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