Merrell’s law license suspension put on hold with conditions

By on December 18, 2015

After a day and a half of testimony, the North Carolina State Bar agreed to a proposed settlement with local attorney Dan Merrell that resulted in a four-year stayed suspension subject to two conditions.

The stay means Merrell, the former town attorney for Kill Devil Hills, can continue to practice law as long as he complies with the terms agreed upon with the Bar’s Disciplinary Hearing Commission.

Merrell must take three extra hours of continuing education in ethics each year and must refrain from working as an attorney for any public entity, including municipalities, during the term of the agreement.

In return, Merrell admitted to violating two of the Bar’s rules related to revealing confidential information concerning the Town of Kill Devil Hills during and after his employment as town attorney.

The bulk of the testimony was Wednesday, with Town Manager Debbie Diaz, Assistant Town Manager Shawn Murphy, Town Clerk Mary Quidley, Police Chief Gary Britt and Assistant Police Chief Dana Harris taking the stand at the Raleigh office of the State Bar.

The bar panel was composed of two attorneys, Chair Renny Deese and Walter E. Brock Jr., and one non-attorney, Bradley Lail.

All three are members of the Bar’s Disciplinary Hearing Commission, which is chaired by Kill Devil Hills Town Attorney Steven Michael. The members of the commission were chosen by Michael’s law partner, Ron Baker, who is past president of the Bar, according to documents filed in another pleading by lawyers for Superior Court Judge Jerry R. Tillett.

Merrell was represented by Phillip Hayes, and the Bar, which filed the complaint, was represented by Patrick Murphy.

The Bar’s complaints centered on affidavits Merrell provided an attorney representing four Kill Devil Hills police officers and another submitted to attorneys for Judge Jerry R. Tillet. The Bar contends that Merrell included confidential town information.

The Voice was not present for Wednesday’s hearing, but this reporter was subpoenaed as a witness by Phillip Hayes and attended the Thursday session.

On Thursday, Hayes argued that the Merrell’s affidavits corrected errors in those submitted by town officials, allowing him to disclose those facts under Bar rules. Hayes also said that the same information had been released to the public through e-mails and statements issued by the town, as well as affidavits submitted by town officials that were widely reported in the media.

Hayes said that his interpretation of Bar rules allowed Merrell to use his discretion in correcting what he saw as inaccuracies or even perjurious statements by town officials, and in the few instances Hayes conceded confidentially may have been violated, he argued they were minor and immaterial.

Hayes also complained that the Wednesday testimony, which also included Dan Hartzog, the attorney who represented Kill Devil Hills in their defense of accusations and a suit filed by four former and current police officers, seemed to be more about Tillett, who is also facing disciplinary action by the Bar.

Murphy argued that anything Merrell learned while working for the town was confidential, no matter how many of those facts may have been repeated in the media or public records as filings and pleadings. He said the definition of confidentiality began as soon as information was “born” no matter how many people knew about it later.

That argument seemed to resonate with one member of the panel, Deese, who subjected Hayes to a withering litany of questions trying to tease out his interpretation of when confidentiality could be broken and when it was “sacrosanct.”

To outsiders, the nuances seemed small, but to the attorneys, what seemed to be trivial distinctions turned into a three-hour discussion of what confidentiality is.

Another quirk is how the adversarial system works in a Bar disciplinary hearing.

The Bar itself makes the complaint and empanels three members of the DHC to hear the defense, while appointing another attorney to argue the Bar’s case, essentially, in front of itself.

Thus, while Hayes was there to represent Merrell, he faced two sets of adversaries — Murphy and the DHC, which appeared more inclined to defend the Bar’s rules.

While Deese was far less aggressive in his questioning of Murphy’s argument, he did ask Murphy how an e-mail sent out by Shawn Murphy to this writer acknowledging that the police chief had been suspended and then re-instated and declaring he knew nothing about any investigation of the police department by the D.A. could be construed as confidential when “Mr. Lay was a known member of the press.”

He also questioned Murphy as to why the town’s admission of an internal investigation of the police chief, his suspension and re-instatement in a widely disseminated Jan. 25 press release would constitute a breach of confidentiality in an affidavit.

All of this discussion was triggered by Hayes’ motion for a directed verdict based on his belief that none of the complaints filed by the Bar rose to the level of requiring a full hearing or punishment.

While that motion was denied, and after two meetings and two recesses, the decision to settle was made between Murphy and Hayes, proposed to the DHC, and accepted.

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