The Merry Outlier

The Wisconsin Supreme Court imposed no discipline in a case where the attorney was exonerated of making a false statement to a tribunal but found to have failed to cooperate with the Office of Legal Regulation (OLR):

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.

Chief Justice Abrahamson concurred and dissented

I agree with the referee and the per curiam opinion that Count 1 of the complaint should be dismissed. 

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. 

 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. 

 Nothing in the record or the referee’s report warrants disregarding the referee’s carefully analyzed and carefully articulated credibility determination. 

 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. 

 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). 

 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. 

Justice Bradley joined the Chief Justice’s opinion. (Mike Frisch)