I Could Write A Book (And Get Revoked)
An attorney with a “lengthy disciplinary history” (but no prior suspensions) had his license revoked by the Wisconsin Supreme Court
This disciplinary matter concerns Attorney Merry’s publication of a book regarding his former client, M.S. This matter began with three counts, one of which the referee dismissed before the evidentiary hearing at the OLR’s request. The referee’s report and the exhibits received at the evidentiary hearing may be summarized as follows.
Attorney Merry served as M.S.’s defense attorney in her 2006 trial on charges including first-degree intentional homicide. M.S. was convicted and sentenced and remains in prison to this day.
In November 2013, Attorney Merry sent M.S. a letter, received into evidence at the evidentiary hearing, stating the following:
There remains a debt for my representation of you of approximately $19,000.00. I am willing to call it even if you would sign a release so the public defender could give me their copy of the transcript, and also sign a waiver of attorney/client privilege. 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. Accordingly, if this meets with your approval, please sign both originals before a witness, have the witness sign it, and return it to me in the enclosed, self-addressed stamped envelope. The extra copies are for your file.
Attorney Merry enclosed with this letter an “Authorization for Release of Transcripts” from the State Public Defender’s Office (SPD) to him, as well as a “Waiver of Attorney-Client Privilege,” which called for M.S. to “waive all attorney-client privilege” and to “authorize my former attorney, Roger Merry, to publish any and all information he has regarding me, including, but not limited to, everything I have said to him which might have been privileged by the attorney-client relationship.” M.S. did not sign either document.
In March 2015, Attorney Merry sent the SPD’s Office a letter, received into evidence at the evidentiary hearing, stating that he knew the SPD’s Office considered transcripts to be the property of its clients; that he wanted a copy of M.S.’s trial transcripts; that she “did not consent to give me a copy since I obtained a judgment against her 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.” He asked where the transcripts might be, and whether the SPD’s Office “had a preferred method of delivery to me pursuant to an execution.” Attorney Merry copied M.S. on this letter.
The SPD’s Office responded with a letter, received into evidence at the evidentiary hearing, informing Attorney Merry that it could not send documents from M.S.’s file without her permission.
Respondent self-published the book; the referee found the publication caused significant harm to the former client.
Violation
Our ethical rules make clear that attorneys owe a duty of confidentiality to both current and former clients. Supreme Court Rule 20:1.6, titled “Confidentiality,” prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent, or the disclosures are impliedly authorized to carry out the representation, or the disclosures are authorized by SCR 20:1.6(b) or (c).
Sanction
Attorney Merry improperly revealed M.S.’s confidential information and used it to her disadvantage, causing her 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 her. This was an intentional, self-benefitting violation of client confidences within the meaning of the standard. We therefore make an initial determination that revocation is the appropriate sanction in this case, subject to modification as a result of aggravating or mitigating factors.
The court weighed the factors and imposed revocation.
Further, the court denied a petition for voluntary license surrender.
ANNETTE KINGSLAND ZIEGLER, C.J. (concurring).
I concur in the court’s order revoking Attorney Merry’s license to practice law in Wisconsin. I write separately to point out that in Wisconsin the “revocation” of an attorney’s law license is not truly revocation because the attorney may petition for reinstatement after a period of five years. See SCR 22.29(2). I believe that when it comes to lawyer discipline, courts should say what they mean and mean what they say. We should not be creating false perceptions to both the public and to the lawyer seeking to practice law again.
…I believe there may be rare and unusual cases that would warrant the permanent revocation of an attorney’s license to practice law. See S. Ct. Order 19-10 (issued Dec. 18, 2019) (Ziegler, J., dissenting).
I am authorized to state that Justices REBECCA GRASSL BRADLEY, BRIAN HAGEDORN, JILL J. KAROFSKY, and JANET C. PROTASIEWICZ join this concurrence.
The Wisconsin Court of Appeals affirmed the grant of summary judgment in a defamation claim brought against Respondent for statements made in the book.
Merry’s book, published in 2020, discusses the events relating to the murder of Ardelle Sturzenegger, whose body was found in 2005 in a field behind the home that Sidoff and his then-wife, Mary Sidoff, were renting in Green County. Mary Sidoff was found guilty of Sturzenegger’s murder at a jury trial in 2006. Merry is the attorney who represented Mary Sidoff at the trial, and in his book he states that it was Sidoff, not Mary Sidoff, who killed Sturzenegger.
(Mike Frisch)