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.
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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
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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.
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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."
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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
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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).
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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,
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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.
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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.
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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.
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No. 2015AP2303-D
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