Disciplinary Proceedings Against Selmer, In re, 98-0886-D

• Decision Date: 23 June 1999
• Docket Number: No. 98-0886-D,98-0886-D
• Citation: 227 Wis.2d 85,595 N.W.2d 373
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Scott E. SELMER, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Scott E. Selmer, Respondent-Appellant.
• Court: Wisconsin Supreme Court

Page 373

595 N.W.2d 373

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Scott E.

SELMER, Attorney at Law.

Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Scott E. Selmer, Respondent-Appellant.

No. 98-0886-D.

Supreme Court of Wisconsin.

Argued June 3, 1999.

Decided June 23, 1999.

For the respondent-appellant there were briefs by Scott Herrick and Herrick, Kasdorf, Dymzarov & Vetzner, Madison and oral argument by Scott Herrick.

For the complainant-respondent there was a brief and oral argument by William J. Weigel, counsel for the Board of Attorneys Professional Responsibility.

ATTORNEY disciplinary proceeding. Attorney's license suspended.

¶1 PER CURIAM.

Attorney Scott E. Selmer appealed from the referee's recommendation that the court suspend his license for one year as discipline reciprocal to that imposed on him by the Minnesota Supreme Court in 1997. He contended that the referee in the instant proceeding erred in denying his request for time to conduct additional discovery and in recommending that the motion of the Board of Attorneys Professional Responsibility (Board) for summary judgment be granted. Arguing that an evidentiary hearing is needed to determine the existence of any of the three grounds set forth in the Wisconsin reciprocal discipline rule, SCR 22.25(5), ¹ that would render improper the imposition of discipline identical to that imposed in Minnesota, he asked that the matter be remanded to the referee to hold a hearing after he takes the depositions of three persons connected with the Minnesota proceeding.

¶2 We determine that the referee's denial of Attorney Selmer's request for additional time to conduct discovery, which was implicit in her report recommending that summary judgment for the Board be granted, was proper and that the Board is entitled to judgment without an evidentiary hearing. Attorney Selmer failed to establish or demonstrate how additional discovery would establish any of the grounds that would make the imposition of reciprocal discipline inappropriate, that is, that the Minnesota disciplinary proceeding was so lacking in notice or opportunity to be heard as to have deprived him of due process, that there was such an infirmity of proof establishing his misconduct in that proceeding that the referee in the instant proceeding could not accept the Minnesota determination as final, or that his misconduct established in the Minnesota proceeding justifies substantially different discipline in Wisconsin. Accordingly, we suspend his license to practice law in Wisconsin for 12 months as discipline reciprocal to that imposed by the Minnesota Supreme Court for his professional misconduct.

¶3 The Minnesota referee concluded that Attorney Selmer had engaged 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 offered false and misleading evidence in response to discovery requests, failed to supplement incomplete and misleading responses to discovery requests, failed to comply or make reasonably diligent efforts to comply with legally proper discovery requests, made false statements of fact in attempts to advance his own interests, and engaged in dishonest conduct in those actions. Based on those conclusions, the referee in the instant proceeding concluded that Attorney Selmer violated the following Rules of Professional Conduct for Attorneys: SCR 20:3.1 ² by knowingly advancing claims, defenses, or factual positions that were frivolous; SCR 20:3.3 ³ by offering evidence he knew to be false; SCR 20:3.4 ⁴ by failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; SCR 20:4.1 ⁵ by knowingly making a false statement of fact to a third person.

¶4 Attorney Selmer was admitted to practice law in Wisconsin in 1978. His office is located in Minneapolis, Minnesota, and his current mailing address is in Golden Valley, Minnesota. He has been disciplined in Wisconsin twice previously: in 1990 the Board privately reprimanded him for failing to provide competent representation by filing papers that reflected a lack of knowledge of Wisconsin appellate procedure and tribunals and for filing documents with a circuit court and with the Court of Appeals while suspended from practice in this state for failure to comply with continuing legal education requirements. In 1995 the court imposed on him a public reprimand reciprocal to the reprimand imposed on him by the Minnesota Supreme Court for the following misconduct: failing 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, failing to maintain proper trust account books and records and falsely certifying that he had done so, and commingling personal and client funds in his trust account. In addition to that reciprocal reprimand, we conditioned Attorney Selmer's continued practice of law on his furnishing the Board quarterly, or as the Board might otherwise direct, for a period of two years a copy of his trust account records. Disciplinary Proceedings Against Selmer, 195 Wis.2d 687, 538 N.W.2d 252.

¶5 At oral argument in this appeal, counsel for Attorney Selmer asserted that Attorney Selmer's license to practice law in Minnesota currently is suspended. He stated further that Attorney Selmer has not engaged in the practice of law in Wisconsin since the one-year license suspension was imposed in Minnesota in September 1997.

¶6 The facts of the instant proceeding are not disputed. At the outset of the proceeding, the referee, Attorney Janet Jenkins, entered a scheduling order that provided a two-month period for completion of discovery. Two weeks after that order was entered, counsel for Attorney Selmer wrote counsel for the Board, with a copy to the referee, asking him to stipulate to a proposed order allowing Attorney Selmer to conduct depositions of three persons connected with the Minnesota disciplinary proceeding, including the prosecutor. Asserting that he would have to seek an order from the referee before proceeding with those depositions, the letter stated that upon the Board counsel's stipulation to the depositions, he was requesting the referee to execute an enclosed order and notices of depositions; if the Board objected to the depositions, he was requesting the referee to schedule argument on his discovery request and to toll the discovery period pending resolution.

¶7 Board counsel declined to stipulate to the proposed depositions, stating, in part, that Minnesota would oppose the deposition of the person who prosecuted the Minnesota disciplinary proceeding on the ground that a court order from the appropriate Minnesota county was necessary to compel that person's testimony. Attorney Selmer's counsel never requested issuance of such a subpoena, nor did he reassert a request for discovery in the instant proceeding or ask the referee to extend the time to conduct discovery until more than three months after the discovery period set forth in the scheduling order had expired.

¶8 On November 5, 1998, after the Board had filed a motion for judgment on the basis of the pleadings and Attorney Selmer's responses to its interrogatories and demand for production of documents and after that motion had been fully briefed by both parties, Attorney Selmer filed with the referee a request for authorization to conduct the depositions of the three persons connected with the Minnesota disciplinary proceeding. The referee set a briefing schedule on the discovery motion, specifically directing Attorney Selmer to address her concerns regarding the untimeliness of the request, the pendency of the Board's summary judgment motion, and the relevance or materiality of the testimony of the proposed deponents. The referee requested "a fair amount of specificity about what [Attorney Selmer] believes that the testimony of these individuals will bring to the issue before us." After Attorney Selmer filed his brief on the discovery issue and the Board filed a responsive brief arguing that the discovery Attorney Selmer requested was untimely and unsupported, the referee filed her report recommending that the Board's summary judgment motion be granted, as there was no genuine issue of material fact and, consequently, the Board was entitled to judgment as a matter of law.

¶9 In support of its motion for summary judgment, the Board submitted by affidavit its interrogatories and requests for production of documents and Attorney Selmer's answers and responses to them, the transcript of the four-day disciplinary hearing in Minnesota, Attorney Selmer's brief, appendix, and reply brief filed with the Minnesota Supreme Court in his appeal of the Minnesota referee's decision, and the brief and appendix of the Minnesota Office of Lawyers Responsibility submitted in that appeal. For his part, Attorney Selmer submitted no affidavits or other evidence in opposition to the summary judgment motion and made no claim that he was unable to do so. Instead, he asserted that summary judgment should not be granted and that the referee should reserve judgment until he had a fair opportunity to develop at a hearing his full factual defense to the application of the Wisconsin reciprocal discipline rule. Significantly, Attorney Selmer did not raise in his brief the matter of the discovery depositions he had proposed in his June 3, 1998 letter to Board counsel.

¶10 The referee found that Attorney Selmer had been given the opportunity to develop his defense to the summary judgment motion and failed to demonstrate that there were genuine issues for hearing, as the only "facts" he submitted were his answers to the Board's interrogatories, which the...