Disciplinary Proceedings Against Selmer, Matter of, 94-1319-D

• Decision Date: 10 October 1995
• Docket Number: No. 94-1319-D,94-1319-D
• Citation: 538 N.W.2d 252,195 Wis.2d 687
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Scott E. SELMER, Attorney at Law.
• Court: Wisconsin Supreme Court

Page 252

538 N.W.2d 252

195 Wis.2d 687

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Scott E.

SELMER, Attorney at Law.

No. 94-1319-D.

Supreme Court of Wisconsin.

Oct. 10, 1995.

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded and condition imposed.

PER CURIAM.

We review the recommendation of the referee that Attorney Scott E. Selmer be publicly reprimanded and placed on two years' probation as discipline for professional misconduct. That misconduct consisted of his 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.

We determine that the recommended public reprimand is appropriate discipline to impose for Attorney Selmer's professional misconduct but do not accept the recommendation that he be placed on probation. The discipline recommended by the referee is identical to that imposed on Attorney Selmer by the Minnesota Supreme Court for Attorney Selmer's professional misconduct in these matters. However, the terms of probation imposed in Minnesota are merely requirements that he conform to specified rules of attorney professional conduct. Furthermore, we do not consider probation an appropriate form of discipline in misconduct cases. However, because of Attorney Selmer's trust account violations, we impose as a condition on his continued practice of law for a period of two years the requirement that he furnish the Board of Attorneys Professional Responsibility (Board) a copy of his trust account records quarterly or as the Board may otherwise direct.

Attorney Selmer was admitted to practice law in Wisconsin in 1978 and practices in Minneapolis. He has not previously been the subject of a prior disciplinary proceeding in Wisconsin. Based on a stipulation of the parties, the referee, Attorney Janet A. Jenkins, made a finding of those facts found by the Minnesota Supreme Court in the disciplinary proceeding there.

Attorney Selmer was retained to represent a client in a personal injury matter in Wisconsin, for which it was agreed that he would be paid a contingent fee of one-third of all amounts recovered at or prior to trial or 45 percent of all amounts recovered in the event an appeal was necessary. Attorney Selmer commenced an action in July, 1986 and the defendant insurer notified him it would seek a declaratory judgment of no coverage. The summons and complaint in the declaratory judgment action were served on the client but she was unsuccessful in reaching Attorney Selmer because he had resigned from his law firm and had not notified her. Consequently, no answer to the complaint was filed. When he learned that a motion for default judgment was set for hearing, Attorney Selmer requested a postponement but it was denied. Because he was delayed on his way to the court for the hearing, the insurer was granted default judgment.

Attorney Selmer appealed the default judgment to the Wisconsin Court of Appeals in June, 1989 but dismissed the appeal after filing a motion to vacate the judgment in the circuit court. Attorney Selmer consented to a private reprimand from the Board for having incompetently filed that appeal: his notice of appeal was captioned in federal district court and stated that the appeal was being made to the United States Court of Appeals. Moreover, at the time he filed that notice of appeal, Attorney Selmer was suspended from practice in Wisconsin for failure to comply with continuing legal education requirements.

The client's claim ultimately went to arbitration and the client was awarded $10,000. When he informed her of his receipt of that amount, the client asked Attorney Selmer to send her the check but he did not do so. He and the client corresponded thereafter on the question of how the proceeds of the settlement should be distributed and on November 5, 1990, the client wrote to him requesting an accounting.

On November 15, 1990, Attorney Selmer filed the first of three actions against his client for fees and costs asserted to be owing to him. The court dismissed the complaint on the ground that Attorney Selmer had not made a demand upon his client prior to initiating the action. Attorney Selmer then commenced a small claims action to recover the costs of collection and an action for attorney fees. Those actions claimed fees and expenses in varying amounts: the first action sought $4500, the amount to which he would have been entitled had the settlement been obtained after an appeal; in the second action, he sought $10,203.

In one of those actions, Attorney Selmer did not respond to interrogatories and a request for document production, despite frequent requests of opposing counsel to do so. He did respond, however, the day before the hearing on a motion to compel discovery. Thereafter, the client's attorney moved for a protective order and sanctions and the motion was granted. In November, 1991 the parties submitted the matter to fee arbitration, as the result of which the client was awarded $3338 and Attorney Selmer $6662.

The investigation of the client's complaint to the Minnesota disciplinary...