OLR v. Roger G. Merry, 2022AP35-D, 4/24/24, per curiam decision of the Wisconsin Supreme Court (in its disciplinary capacity).
Although the “true crime” genre remains as big as ever, SCOW reminds lawyers to exercise caution in this area when dealing with one’s own case.
The attorney in this disciplinary case represented a client in 2006 with respect to a prosecution for first-degree intentional homicide. (¶5). In 2013, he decided to write a book about the case and asked his client to sign a waiver. (¶6). As his client owed him a sizable amount of unpaid fees, he indicated that he would “write off the bill” if his client signed the waiver. (Id.). If not, he indicated he would have no choice but to seek the fee via litigation. (Id.). She did not sign the waiver. (¶7). Ultimately, the attorney published the book anyway. (¶10).
The Office of Lawyer regulation filed a complaint, alleging that the attorney violated the ethical rules “by using information to write and publish a book relating to his representation of M.S. that was not generally known” and “revealing in the book information relating to his representation of M.S. without her permission.” (¶14). SCOW upholds the referee’s conclusion that the attorney violated his ethical obligations. Attorneys have a duty of confidentiality to their former clients which forbids the “use” of confidential information which disadvantages the client as well as the “revelation” of confidential information except as otherwise permitted by the rules. (¶¶ 24-25). Here, the attorney “used” the information to his former client’s disadvantage when he wrote a book that caused her “psychological harm.” (¶26). And he indisputably “revealed” confidential information by publishing the book at all. (Id.).
Notably, while attorneys may be permitted to reveal that which is “generally known,” SCOW accepts the referee’s conclusion that this exception does not apply here as it “was not widely recognized by members of the public in the relevant geographical area.” (¶27). And, while the attorney claimed that he did not use attorney-client confidences to write the book–but instead appears to have relied on police reports and other discovery as well as his memories of the trial–the rule governing “confidential” information is broader than the attorney-client privilege. (Id.). It also does not matter that the attorney’s book postulates that the client in question is innocent. (¶17). The public re-airing of this tragedy via the attorney’s book caused this mentally ill client psychological harm, and that is what matters when assessing whether the information was used to “disadvantage” her. (Id.). SCOW holds that this is an exceptionally serious ethical breach and therefore imposes revocation of the lawyer’s license. (¶38).
We don’t often cover attorney disciplinary cases, although readers may see more when those cases are relevant to this blog’s criminal defense focus. We bring this case to our readers’ attention, not to further publicize this attorney’s failings, but rather to illustrate the very strict rules criminal defense lawyers work under. While many of us have handled high-profile cases–including cases where we believe the jury got it wrong–this disciplinary decision illustrates the constraints placed on lawyers given our role as advocates for often mentally fragile individuals. Trial war stories may sometimes serve as a lingua franca, but we risk much if we too-freely publicize what we know–even if our knowledge is solely derived from other publicly-accessible documents–without our client’s clear permission.
Attorney speech rights become even more limited when their speech takes place during the pendency of a trial.
Important cases to know:
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). “An attorney’s duties do not begin inside the courtroom door,” Justice Anthony Kennedy wrote in his majority opinion. “He or she cannot ignore the practical implications of a legal proceeding for the client.” He also emphasized that Gentile made his statements months before the actual trial took place. Kennedy also noted that Gentile’s speech did not prejudice the actual trial that eventually took place – and which led to an acquittal of Gentile’s client.
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) court recognized that two Arizona lawyers had a First Amendment right to truthfully advertise their prices for low-cost legal services in a newspaper. The court emphasized that attorney advertising, a form of commercial speech, offered knowledge to persons who might really need legal assistance.
Ohralik v. Ohio State Bar Association, 436 U.S. 477 (1978) – the Supreme Court ruled that such direct face-to-face solicitation could be prohibited without running afoul of the First Amendment. The court focused on the potential coerciveness that might occur when a lawyer engages in such face-to-face solicitation.
BUT Florida Bar v. Went-For-It, Inc. (1995). In that decision, the U.S. Supreme Court narrowly upheld (5-4) a Florida Bar rule that prohibited lawyers from sending solicitation letters to accident victims until 30 days after their accident. The majority reasoned that the 30-day ban on such letters directly furthered the state’s substantial interests in protecting accident victims and preserving the reputation of the bar.
Likewise, watchout if you complain about judges. The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation Georgetown Law Journal, Vol. 97, p. 1567, 2009 arguing such criticism is to be viewed in light of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
National Institute of Family and Life Advocates v. Becerra, 585 US ___ (2018),court rejected the idea of the “professional speech doctrine” and wrote that “speech is not unprotected simply because it has been uttered by professionals.” In other words, the question is if there is no general lessened protection for professional speech, does it make sense to continue treating lawyer speech differently? Or Bridges v. California, 314 U.S. 252 (1941) – a case involving newspaper criticism of the judiciary – that “[t]he assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”
Interesting discussion, Attorneys have free speech rights. I’m suing to prove it.https://www.thefire.org/news/attorneys-have-free-speech-rights-im-suing-prove-it
SILENCE IS NOT GOLDEN: PROTECTING LAWYER SPEECH UNDER THE FIRST AMENDMENT 47 Emory LJ 859 (1998)