                                                                 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.

                                    2
                                                                       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


                                            3
                                                           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.

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                                                                        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
                                             6
                                                               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.
                                       7
                                                                         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
                                            8
                                                                             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
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                                                                    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



                                             1
                                                         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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