Office of Lawyer Regulation v. Scott E. Selmer

2021 WI 16, 955 N.W.2d 170, 396 Wis. 2d 1

• Court: Wisconsin Supreme Court
• Decided: March 3, 2021
• Docket: 2015AP002303-D
• Status: Published

Opinion

2021 WI 16

SUPREME COURT OF WISCONSIN CASE NO.: 2015AP2303-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Scott E. Selmer, Attorney at Law:

Office of Lawyer Regulation, Complainant, v. Scott E. Selmer, Respondent.

ATTORNEY SELMER REINSTATEMENT PROCEEDINGS Reported at 371 Wis. 2d 377,882 N.W.2d 815 PDC No:2016 WI 71 - Published

OPINION FILED: March 3, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT:

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

JUSTICES: Per Curiam. NOT PARTICIPATING:

ATTORNEYS: 2021 WI 16 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP2303-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings Against Scott E. Selmer, Attorney at Law:

Office of Lawyer Regulation, FILED Complainant, MAR 3, 2021 v. Sheila T. Reiff Clerk of Supreme Court Scott E. Selmer,

Respondent.

ATTORNEY reinstatement proceeding. Reinstatement granted

with conditions.

¶1 PER CURIAM. We review a report filed by Referee L.

Michael Tobin recommending that the court reinstate the license

of Scott E. Selmer to practice law in Wisconsin with conditions.

No appeal has been filed from the referee's report and

recommendation, so our review proceeds pursuant to Supreme Court

Rule (SCR) 22.33(3). Upon careful review of the matter, we

adopt the referee's findings of fact and conclusions of law and

agree that Attorney Selmer's petition for reinstatement should be granted, upon two conditions, as set forth herein. We No. 2015AP2303-D

reserve the question whether the costs of this reinstatement

proceeding, should be paid by Attorney Selmer, pending receipt

of additional information.1

¶2 Attorney Selmer was admitted to the practice of law in

Wisconsin in 1978, and admitted to practice law in Minnesota in

1984. Attorney Selmer has received professional discipline in

both jurisdictions; his Minnesota law license remains suspended.

¶3 Attorney Selmer's Wisconsin disciplinary history

consists of the following:

 A 1990 private reprimand for filing documents with the Pierce County Circuit Court and Wisconsin Court of Appeals during a time when his license was suspended for failure to meet continuing legal education requirements. Private Reprimand No. 1990-23 (electronic copy available at https://compendium.wicourts.gov/app/raw/000021.html).

 A 1995 public reprimand for failure to promptly provide his client in a personal injury matter a full accounting of funds he received on her behalf, charging and suing that client to collect an unreasonable fee, abusing the discovery process in that action, and failing to maintain proper trust account books and records, falsely certifying that he had done so, and commingling personal and client funds in his trust account. In re Disciplinary Proceedings Against Selmer, 195 Wis. 2d 687, 538 N.W.2d 252 (1995).

 A 1999 one-year suspension imposed as discipline reciprocal to that imposed in Minnesota for engaging in a pattern of frivolous and harassing conduct by filing counterclaims alleging racial discrimination in actions brought against him by his creditors and by filing claims in state and federal courts alleging racial discrimination, knowingly offering false and misleading

1 On February 8, 2021, Referee Tobin filed a supplemental report recommending the court exercise discretion under SCR 22.24(1m)(f) and 22.29(5), and impose no costs in this proceeding. This matter remains pending. 2 No. 2015AP2303-D

evidence in response to discovery requests, failing to supplement incomplete and misleading responses to discovery requests, failing to comply or make reasonably diligent efforts to comply with legally proper discovery requests, making false statements of fact in attempts to advance his own interests, and engaging in dishonest conduct in those actions. In re Disciplinary Proceedings Against Selmer, 227 Wis. 2d 85, 595 N.W.2d 73 (1999).

 A 2009 public reprimand imposed as discipline reciprocal to discipline imposed in Minnesota for failing to comply with terms of probation, failing to file timely individual income tax returns, and a fifth-degree assault conviction. In re Disciplinary Proceedings Against Selmer, 2009 WI 15, 315 Wis. 2d 650, 761 N.W.2d 6.

 A 2016 one-year suspension imposed as discipline reciprocal to that imposed in Minnesota for engaging in a pattern of frivolous and harassing litigation, failure to obey court orders and a failure to comply with legally proper discovery requests. In re Disciplinary Proceedings Against Selmer, 2016 WI 71, 371 Wis. 2d 377, 882 N.W.2d 815.

¶4 On April 8, 2020, Attorney Selmer filed a petition

seeking reinstatement from the one-year license suspension,

which expired in July 2017. The Office of Lawyer Regulation

(OLR) filed a response on October 22, 2020, stating that based upon its investigation it would not oppose Attorney Selmer's

reinstatement, but would recommend his reinstatement be subject

to certain conditions, namely entering into a payment plan for

outstanding unpaid costs, and mentoring by another attorney.

¶5 Referee Tobin conducted an evidentiary hearing on

November 19, 2020. The only witness at the hearing was Attorney

Selmer.

¶6 On December 30, 2020, Referee Tobin issued a report making detailed findings. Referee Tobin concluded that Attorney

3 No. 2015AP2303-D

Selmer had satisfied his burden of proof and had met all the

requirements for reinstatement set forth in SCR 22.31 and

22.29(4).2 The referee thereby recommended Attorney Selmer's

reinstatement to the practice of law on the two conditions

recommended by the OLR.

¶7 The referee found that Attorney Selmer has fully

complied with the terms of the order of suspension. Although he

has not fully paid the costs of prior disciplinary proceedings

for demonstrated financial reasons, he has stated his intent to

establish payment arrangements for any costs he may owe.3 The

referee notes that during his suspension, Attorney Selmer

resided primarily in Minnesota, working at various part-time

non-legal jobs, and attending school. Attorney Selmer testified

to difficulty finding and maintaining employment when employers

learned of his disciplinary history through internet searches.

2 Effective January 1, 2021, substantial changes were made to the rules pertaining to lawyer disciplinary procedures, including the reinstatement rules, SCR 22.29 through 22.33. See S. Ct. Order 19-06, 19-07, 19-08, 19-09, 19-10, 19-11, and 19-12, 2020 WI 62 (issued June 30, 2020, eff. Jan. 1, 2021). Because this reinstatement proceeding commenced prior to January 1, 2021, unless otherwise indicated, all references to the supreme court rules will be to those in effect prior to January 1, 2021. 3 According to the OLR, Attorney Selmer has not paid the $842.52 in costs from the 2016 disciplinary matter and owes $15,830.35 in costs imposed for previous disciplinary proceedings, exclusive of post-judgment interest. No restitution was ordered in the underlying reciprocal suspension order.

4 No. 2015AP2303-D

¶8 At the hearing, Attorney Selmer testified that some of

his prior misconduct occurred when he was representing himself

and that he has learned that he should advocate to the best of

his ability, but should pull back from future situations that

could arguably run afoul of ethical rules. Attorney Selmer also

indicated that he would seek advice from other attorneys, such

as through the State Bar's Ethics Hotline. If reinstated,

Attorney Selmer intends to engage in service work such as public

defender representation, mediation, arbitration, and document

review.

¶9 The referee noted that Attorney Selmer provided

positive written recommendations from five individuals who

recommended his reinstatement and who attest to Attorney

Selmer's "honesty and candor," "impeccable honesty," and "fair

and honest" character. In addition, Attorney Selmer provided

the testimony of ethics expert Professor Richard Painter, who

testified on Attorney Selmer's behalf in a 2019 Minnesota

reinstatement proceeding, describing Attorney Selmer as "very honest" and "very earnest."

¶10 In deciding whether to recommend reinstatement, the

referee acknowledged that Attorney Selmer's extensive

disciplinary history is a concern, but concluded that "the

entire record, including the age of some of this disciplinary

history, the expiration of the current suspension period in July

2017, and the strength of the current references, outweighs this

concern."

5 No. 2015AP2303-D

¶11 The referee then addressed whether conditions should

be imposed upon Attorney Selmer's reinstatement. The OLR

supported Attorney Selmer's reinstatement provided that Attorney

Selmer's return to practice be under the supervision of a

mentor, and that Attorney Selmer enter into a payment plan to

repay costs owed from this proceeding and prior Wisconsin

disciplinary proceedings. Attorney Selmer did not oppose the

payment plan condition, but he expressed strong reservations

about supervision by a mentor, and queried whether this

condition was influenced by racial bias. The referee

acknowledged Attorney Selmer's "strong opinions regarding not

only his personal history, but also the disparate treatment that

minorities encounter in the justice system" citing Ashley

Nellis, The Color of Justice: Racial and Ethnic Disparity in

State Prisons (2016),

https://www.sentencingproject.org/publications/color-of-justice-

racial-and-ethnic-disparity-in-state-prisons.

¶12 Ultimately, the referee found that nothing in this proceeding suggests that the OLR's recommendation is racially

motivated and that the extent and nature of Attorney Selmer's

disciplinary record - five separate disciplinary proceedings

involving abuse of legal process, frivolous filings, and failure

to file required reports and documents – support requiring

supervision by a mentor as a condition of his reinstatement.

The referee added that the appropriateness of a mentoring

condition is bolstered by the fact that it has been several years since Attorney Selmer has practiced law. Moreover, he is 6 No. 2015AP2303-D

likely to be a solo practitioner, at least initially, and

thereby not subject to a direct supervisor, as many attorneys

have as part of employment in a private firm or a government

agency.4 Attorney Selmer has indicated that although he

disagrees with a mentoring condition he will abide by it if

imposed. Having concluded that Attorney Selmer had met his

burden with respect to each of the requirements of

reinstatement, the referee recommended reinstatement, upon the

two conditions requested by the OLR.

¶13 No appeal was filed so our review proceeds under

SCR 22.33(3). When we review a referee's report and

recommendation, we will adopt the referee's findings of fact

unless they are clearly erroneous. Conclusions of law are

reviewed de novo. See In re Disciplinary Proceedings Against

Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.

¶14 Supreme Court Rule 22.29(4) provides that a petition

for reinstatement must show all the following:

(a) The petitioner desires to have the petitioner's license reinstated.

(b) The petitioner has not practiced law during the period

of suspension or revocation.

4 Supervising attorneys have responsibility to make "reasonable efforts" to ensure ethical conduct by all attorneys under their supervision. See SCR 20:5.1(b) (Responsibilities of partners, managers, and supervisory lawyers).

7 No. 2015AP2303-D

(c) The petitioner has complied fully with the terms of the

order of suspension or revocation and will continue to comply

with them until the petitioner's license is reinstated.

(d) The petitioner has maintained competence and learning

in the law by attendance at identified educational activities.

(e) The petitioner's conduct since the suspension or

revocation has been exemplary and above reproach.

(f) The petitioner has a proper understanding of and

attitude toward the standards that are imposed upon members of

the bar and will act in conformity with the standards.

(g) The petitioner can safely be recommended to the legal

profession, the courts and the public as a person fit to be

consulted by others and to represent them and otherwise act in

matters of trust and confidence and in general to aid in the

administration of justice as a member of the bar and as an

officer of the courts.

(h) The petitioner has fully complied with the requirements

set forth in SCR 22.26. (j) The petitioner's proposed use of the license if

reinstated.

(k) A full description of all of the petitioner's business

activities during the period of suspension or revocation.

¶15 Supreme Court Rule 22.31(1)(c) provides that an

attorney seeking reinstatement has the burden of demonstrating

all of the above requirements by clear, satisfactory, and

convincing evidence. Supreme Court Rule 22.31(1) also provides that an attorney seeking reinstatement must show by clear, 8 No. 2015AP2303-D

satisfactory, and convincing evidence that he or she has the

moral character to practice law; that his or her resumption of

the practice of law will not be detrimental to the

administration of justice or subversive to the public interest;

and that he or she has complied with SCR 22.26 and the terms of

the underlying disciplinary order. See SCR 22.31(1)(a), (b),

and (d).

¶16 Upon review of the record and the excellent report

detailing Attorney Selmer's satisfaction of each of these

criteria, we adopt the referee's findings of fact and

conclusions of law and we agree that Attorney Selmer has

established by clear, satisfactory, and convincing evidence that

he has satisfied all the criteria necessary for reinstatement

and may be reinstated, upon conditions. We agree that Attorney

Selmer's disciplinary record supports the OLR's request and the

referee's recommendation that a payment plan should be required

and that an attorney should be appointed to mentor Attorney

Selmer during his transition back to the practice of law, to ensure protection of the public and to aid the administration of

justice.

¶17 Accordingly, we accept the referee's recommendation to

reinstate Attorney Selmer's license to practice law in

Wisconsin, subject to the conditions as set forth herein. We

reserve the question whether Attorney Selmer shall be required

to pay the full costs of this proceeding, pending receipt of

further information; the costs issue will be resolved by separate order. 9 No. 2015AP2303-D

¶18 IT IS ORDERED that the license of Scott E. Selmer to

practice law in Wisconsin is reinstated, effective the date of

this order, upon the following conditions:

(1) Scott E. Selmer shall, promptly upon reinstatement and

prior to his resumption of the practice of law,

identify an attorney approved by the Office of Lawyer

Regulation who shall be appointed to serve as a mentor

to Attorney Selmer and to oversee his practice of law

for a period of 18 months, and who shall provide

written quarterly reports to the Office of Lawyer

Regulation commencing three months after Attorney

Selmer's reinstatement, and continuing for a period of

18 months thereafter;5 and

(2) Scott E. Selmer shall, promptly upon reinstatement,

enter into a written agreement with the Office of

Lawyer Regulation to repay costs related to his prior

Wisconsin disciplinary proceedings together with any

costs imposed related to this proceeding, commensurate with his ability to pay. This agreement shall require

that Attorney Selmer provide the OLR with financial

information upon request to facilitate review of his

ability to repay these costs.

5 The OLR's pre-hearing written response to Attorney Selmer's petition recommended a two-year duration for this condition. The referee deemed 18 months sufficient and the OLR has not appealed this recommendation.

10 No. 2015AP2303-D

¶19 IT IS FURTHER ORDERED that the administrative

suspension of Scott E. Selmer's license to practice law in

Wisconsin, due to his failure to pay mandatory bar dues, for

failure to file Office of Lawyer Regulation trust account

certification, and for noncompliance with continuing legal

education requirements, will remain in effect until each reason

for the administrative suspension has been rectified pursuant to

SCR 22.28(1).

¶20 IT IS FURTHER ORDERED that the court reserves the

question of the payment of costs for this proceeding, pending

receipt of additional information; the costs issue will be

resolved by separate order.

11 No. 2015AP2303-D