IN THE MATTER OF STEPHEN GARY MERRILL

VSB Docket No. 00-022-3088

This matter came on to be heard on September 28, 2001, before a panel of the Disciplinary Board consisting of John A. Dezio, Chair, William C. Boyce, Jr., Donna A. DeCorleto, Joseph R. Lassiter, Jr., and Roscoe B. Stephenson, III. The Virginia State Bar ("VSB") was represented by Richard E. Slaney, Assistant Bar Counsel. The respondent, STEPHEN GARY MERRILL, was present and proceeded pro se. Donna T. Chandler, Chandler & Halasz, Registered Professional Reporters, P.O. Box 9349, Richmond, VA 23227, 804/730-1222, recorded the hearing. The Chair polled the panel to determine whether any member would be prevented from hearing the matters because of a conflict, actual or perceived. Each member, including the Chair, responded in the negative. Upon the conclusion of the misconduct phase, the panel deliberated and reached a finding that misconduct had occurred, after which the panel reconvened and heard further evidence, after which the panel again deliberated and returned its decision. The VSB pre-filed exhibits in the case, and Respondent offered exhibits during the proceedings. No objection was raised to any of the exhibits, and all were received into evidence.

• During all times relevant hereto, Respondent, Stephen Gary Merrill, was an attorney licensed to practice law in the Commonwealth of Virginia.
• In late April, 1999, local law enforcement officials became aware that a possible marijuana patch was being tended on land belonging to Respondent in Isle of Wight County, Virginia.
• In early July, 1999, law enforcement officials placed the suspect property under video surveillance. Several days later, those law enforcement officials conducted in person surveillance and observed Respondent watering the marijuana plants. They arrested Respondent and a consensual search of his residence revealed a small amount of marijuana.
• The marijuana patch consisted of approximately 180 individual marijuana plants growing in seven mounds of dirt in a plot approximately 10 feet by 12 feet.
• Respondent was charged with the felony of manufacturing marijuana or possessing marijuana with the intent to manufacture same, but not for the accused's own use, a violation of Virginia Code Section 18.2-248.1.
• At the first hearing of the matter in the Isle of Wight General District Court, Respondent entered a guilty plea to possession of marijuana with intent to distribute, not more than one-half an ounce, a violation of Virginia Code Section 18.2-248(a)(1), a Class 1 misdemeanor. He was sentenced to six months in jail with all six months suspended, and ordered to pay a $2,500.00 fine.
• The Respondent filed a Reply to the VSB's allegations set forth above, admitting the allegations as stated above.






• Among the property seized, according to the incident report from the investigation, were 180 marijuana plants, 4 rolls of wire and 1 roll of barbed wire, plant food, potting soil, wood mulch and pruning tools.



II. NATURE OF MISCONDUCT

From these findings, the Board concludes that the respondent has violated the following disciplinary rules:

DR 1-102 Misconduct.

(A) A lawyer shall not:

• Commit a crime or other deliberate wrongful act that reflects adversely on the lawyer's fitness to practice law.
III. DETERMINATION OF SANCTIONS

Having found misconduct, the Board then heard evidence and argument in regard to sanctions. The VSB introduced Respondent's prior disciplinary record, which included a dismissal with terms which was imposed in 1995 involving a matter which occurred in 1992, and another matter which is currently on appeal to the Virginia Supreme Court. Neither matter was drug related nor involved criminal conduct.

Following deliberation the Board determined that the proper sanction for this misconduct is a 90 day suspension. The prior disciplinary record is not extensive and does not appear to be of particular relevance to the matter before this panel. This misconduct is not alleged to have caused immediate harm to Respondent's clients, as might be the case in a situation involving lawyer impairment. Respondent admits that his conduct was wrong and stupid, but argues that it caused no harm to others. However, the deliberate growing of a substantial quantity of an illegal substance by an attorney on his own property, with his active participation, constitutes criminal conduct which reflects adversely on his fitness to practice law, and brings disrepute to the Bar as a whole.

Respondent, a solo practitioner, requests delay in the imposition of the suspension of his license, in order that he might get the affairs of his practice in order and avoid harm to his clients, to which VSB does not object.

It is therefore ORDERED that the Respondent's license to practice law in the Commonwealth of Virginia is hereby SUSPENDED for the period of ninety (90) days, commencing November 1, 2001.

It is further ORDERED pursuant to the provisions of Part Six, Section IV, 13(K)(1) of the Rules of the Supreme Court of Virginia, that the Respondent shall forthwith give notice by certified mail, return receipt requested, of this suspension of his license to practice law in the Commonwealth of Virginia, to all clients for whom he is currently handling matters and to all opposing attorneys and the presiding judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters now in his care in conformity with the wishes of his clients. The Respondent shall give such notice within fourteen (14) days of the effective date of this suspension order, and make such arrangements as are required herein within forty-five (45) days of the effective date of this order. The Respondent shall furnish proof to the Bar within sixty (60) days of the effective date of this Order that such notices have been timely given and such arrangement for the disposition of matters made. Issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Disciplinary Board, which may impose additional sanctions for failure to comply with the requirements of this subparagraph.





It is further ORDERED that Respondent shall furnish true copies of all of the notice letters sent to all persons notified of the suspension, with the original return receipts for said notice letters, to the Clerk of the Disciplinary System, on or before December 31, 2001.

It is further ORDERED that pursuant to Part Six, ßIV, � 13(K)(10) of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs.

It is further ORDERED that the Clerk of the Disciplinary System send an attested copy of this Order to STEPHEN GARY MERRILL at his current address of record with the Virginia State Bar, 2019 Llewellyn Avenue, Norfolk, Virginia, 23517, by certified mail, return receipt requested, and by regular mail, and that a copy be mailed to Richard E. Slaney, Assistant Bar Counsel.

ENTERED this ____ day of ______________, 2001.

VIRGINIA STATE BAR DISCIPLINARY BOARD





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By: John A. Dezio, Chair