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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 reserve the question
whether the costs of this reinstatement
proceeding, should be paid by Attorney
Selmer, pending receipt of additional
information.
¶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:
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• 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/0000
21.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 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 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). 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. 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.
¶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."
¶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/publicatio
ns/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 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.
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.
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¶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.
(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,
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.
¶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; 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.
¶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.
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