In re Petition for Disciplinary Action against Selmer, No. A06-2254.

CourtSupreme Court of Minnesota (US)
Writing for the CourtPer Curiam
Citation749 N.W.2d 30
Docket NumberNo. A06-2254.
Decision Date22 May 2008
PartiesIn re Petition for DISCIPLINARY ACTION AGAINST Scott E. SELMER, a Minnesota Attorney, Registration No. 156024.
749 N.W.2d 30
In re Petition for DISCIPLINARY ACTION AGAINST Scott E. SELMER, a Minnesota Attorney, Registration No. 156024.
No. A06-2254.
Supreme Court of Minnesota.
May 22, 2008.

[749 N.W.2d 33]

Timothy Michael Burke, St. Paul, MN, for Petitioner OLPR.

Allen H. Gibas, Minneapolis, MN, for Respondent Selmer.

Laurie A. Savran, Minneapolis, MN, for Amicus Rosalie E. Wahl.

Heard, considered, and decided by the court en banc.

OPINION

PER CURIAM.


In November 2001, we placed Scott E. Selmer on supervised probation for 5 years subject to a number of conditions, including making good faith efforts to reduce or satisfy liens and judgments and paying an outstanding Wisconsin disciplinary judgment. On November 28, 2006, the Director of the Office of Lawyers Professional Responsibility ("Director") filed a petition seeking the revocation of Selmer's probation and imposition of further discipline. The petition identified three violations: failure to comply with the terms of probation in violation of Minn. R. Prof. Conduct 3.4(c), 8.1(a) and (b), and 8.4(c) and (d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR); failure to timely file individual income tax returns in violation of Minn. R. Prof. Conduct 8.4(b) and (d); and a fifth-degree assault conviction in violation of Minn. R. Prof. Conduct 8.4(b). Selmer answered the petition, and a hearing was held before a referee, who recommended that Selmer be released from probation with a public reprimand. We conclude that the appropriate discipline is a public reprimand and 1 year of unsupervised probation. Selmer will be automatically released from probation when he has submitted proof of payment of the Wisconsin disciplinary judgment. If Selmer has not satisfied the Wisconsin disciplinary judgment by the end of 1 year, Selmer will be automatically suspended from the practice of law until he has satisfied that judgment.

Selmer was admitted to the practice of law in Minnesota in 1984. In 1995, he was disciplined twice. He received a private admonition for improperly charging a client for copies of the client's file made for Selmer's own benefit. Additionally, Selmer was publicly reprimanded and put on probation for 2 years for the following

749 N.W.2d 34

violations: failing to promptly provide an accounting of the distribution of an arbitration award, charging an unreasonable fee, abusing the discovery process, failing to maintain proper trust account books and records, falsely certifying that he maintained proper trust account records, and commingling personal and client funds. In re Selmer, 529 N.W.2d 684 (Minn.1995). After being privately admonished, publicly reprimanded, and placed on probation, Selmer was also subject to reciprocal disciplinary proceedings in Wisconsin, where he had been admitted to the bar in 1978, for the same conduct. In re Selmer, 195 Wis.2d 687, 538 N.W.2d 252 (1995). The Wisconsin Supreme Court publicly reprimanded Selmer and required him to submit his trust account records quarterly for a period of 2 years. Id. at 255. Selmer was also ordered to pay the costs stemming from the Wisconsin disciplinary proceeding. Id.

Approximately halfway through Selmer's 2-year probationary period, the Director filed a petition for revocation of probation and for further disciplinary action. In re Selmer, 568 N.W.2d 702, 702-03 (Minn.1997). Pursuant to this petition, we suspended Selmer in 1997 for 1 year for engaging in "a pattern of frivolous and harassing litigation" and a pattern of "repeated misrepresentation, nondisclosure and lack of candor" throughout the disciplinary process, and we required Selmer to petition for reinstatement. Id. at 704. The Wisconsin Supreme Court suspended Selmer for 1 year based on Selmer's misconduct in Minnesota. In re Selmer, 227 Wis.2d 85, 595 N.W.2d 373, 374-75 (1999). Selmer was ordered to pay the costs of the disciplinary proceedings in Wisconsin. Id. at 379-80.

On November 28, 2001, we reinstated Selmer to the practice of law and put him on probation for 5 years subject to a number of conditions.1 In re Selmer, 636 N.W.2d 308, 309 (Minn.2001). These conditions included full cooperation with probation, compliance with the rules of professional conduct, supervision by and regular contact with a licensed attorney, various reporting requirements, initiation of proper office procedures, payment of the outstanding Wisconsin disciplinary judgment, good faith efforts to reduce or satisfy the liens and judgments against him, and creation of a business plan. Id. at 308-09. The judgments and liens against Selmer included past-due tax liabilities and a judgment from a civil suit in Hennepin County District Court ("Schurstein judgment"). Since his probation began, Selmer has met some of the conditions of his probation: he has satisfied the Schurstein judgment and his federal tax liens.

Since 2001, the Director has supervised Selmer's probation. The Director's supervision consisted primarily of written correspondence with Selmer. The Director requested a wide variety of information generally pertaining to the terms of Selmer's probation. Selmer frequently responded to the Director's requests late, but usually provided the information requested. Over the course of the probationary period, the Director's requests became more sweeping. For example, in one letter in the last year of Selmer's probation, the Director instructed him to provide detailed information of his monthly household income and expenses, including thorough documentation of 30 different income- and expense-related items.

Selmer frequently responded in writing by questioning the Director's authority to

749 N.W.2d 35

require such information. The relationship between Selmer and the Director during Selmer's probationary period was often strained, at best. Although Selmer frequently told the Director in writing that he did not think the Director had the authority to request certain types of information, Selmer did not request any modifications to the conditions of his probation.2 Similarly, although the Director expressed frustration in his letters that Selmer did not always respond in a timely fashion, the Director did not seek revocation of Selmer's probation until just days before it was set to expire.

The Director's November 28, 2006, petition alleges three types of misconduct: (1) that Selmer failed to comply with the conditions of probation and made false statements to the Director; (2) that Selmer failed to timely file federal and state income tax returns; and (3) that Selmer committed fifth-degree assault when he punched a man who argued with Selmer's son at a school basketball game. Selmer filed an answer to the Director's petition denying that any violations warranted discipline, and we referred the matter to a referee for findings of fact and recommendations for disposition.

The referee found that Selmer furnished some, but not all of the information requested by the Director; Selmer failed to provide information showing compliance with the financial requirements of his probation; Selmer has no income; Selmer pleaded guilty to fifth-degree assault; and the Director did not prove that Selmer made false statements to the Director. The referee then concluded that Selmer violated the conditions of his probation. The referee concluded that Selmer's misconduct was aggravated by his past history of discipline but was mitigated by his financial problems. The referee also stated that Selmer's violations hurt no clients, but rather affected only Selmer and his family. The referee recommended that Selmer receive a public reprimand and be released from probation. The Director subsequently ordered a transcript of the hearing before the referee.

Because the Director has ordered a transcript of the referee hearing, the referee's findings "are not binding on this court." In re Peterson, 718 N.W.2d 849, 853 (Minn.2006); see also RLPR 14(e) (providing that if either respondent or the Director orders a transcript, the referee's findings of fact and conclusions of law are not conclusive). However, we will uphold a referee's factual findings if they have evidentiary support in the record and are not clearly erroneous. In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998). A referee's findings are clearly erroneous when we are "left with the definite and firm conviction that a mistake has been made." Peterson, 718 N.W.2d at 853 (internal quotation marks omitted).

Although the parties submitted over 100 exhibits to the referee and the referee heard testimony from Selmer and other witnesses, the referee made very limited factual findings. The material findings made by the referee are that Selmer "furnished some, but not all, of the information requested by the Director"; that Selmer "failed to provide information showing compliance with the financial requirements

749 N.W.2d 36

of his probation"; and that Selmer "has had no ability to comply with the financial terms of his probation." The referee concluded that Selmer violated the terms of his probation, thus violating the rules of professional responsibility, and that Selmer's conviction for fifth-degree criminal assault violated Minn. R. Prof. Conduct 8.4(b). Finally, the referee recommended that Selmer be publicly reprimanded and released from probation based on the mitigating factor of Selmer's financial problems and the fact that Selmer's misconduct hurt no clients.

Upon review of the record, we conclude that the referee's very limited factual findings have evidentiary support in the record. The exhibits introduced at trial indisputably establish that on multiple occasions Selmer did not respond to the Director on time, that Selmer has not paid the Wisconsin disciplinary judgment, that he filed his individual income taxes late for 2 years, and that he was convicted of fifth-degree assault while on probation.

Furthermore, we conclude that, based on the referee's findings, Selmer's conduct violated...

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27 practice notes
  • Chief Disciplinary Counsel v. Zelotes, No. 35867.
    • United States
    • Appellate Court of Connecticut
    • August 19, 2014
    ...further noted that “[o]ur sister states have found 8.4(4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn.2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla.2008) (failure to appea......
  • Henry v. Statewide Grievance Committee, No. 28916.
    • United States
    • Appellate Court of Connecticut
    • October 28, 2008
    ...804 A.2d 1027 (2002). Our sister states have found 8.4(4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn.2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla.2008) (failure to appea......
  • Chief Disciplinary Counsel v. Zelotes, AC 35867
    • United States
    • Appellate Court of Connecticut
    • August 19, 2014
    ...noted that "[o]ur sister states have found 8.4 (4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn. 2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla. 2008) (failure to appea......
  • Chief Disciplinary Counsel v. Zelotes, AC 35867
    • United States
    • Appellate Court of Connecticut
    • August 19, 2014
    ...noted that "[o]ur sister states have found 8.4 (4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn. 2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla. 2008) (failure to appea......
  • Request a trial to view additional results
27 cases
  • Chief Disciplinary Counsel v. Zelotes, No. 35867.
    • United States
    • Appellate Court of Connecticut
    • August 19, 2014
    ...further noted that “[o]ur sister states have found 8.4(4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn.2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla.2008) (failure to appea......
  • Henry v. Statewide Grievance Committee, No. 28916.
    • United States
    • Appellate Court of Connecticut
    • October 28, 2008
    ...804 A.2d 1027 (2002). Our sister states have found 8.4(4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn.2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla.2008) (failure to appea......
  • Chief Disciplinary Counsel v. Zelotes, AC 35867
    • United States
    • Appellate Court of Connecticut
    • August 19, 2014
    ...noted that "[o]ur sister states have found 8.4 (4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn. 2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla. 2008) (failure to appea......
  • Chief Disciplinary Counsel v. Zelotes, AC 35867
    • United States
    • Appellate Court of Connecticut
    • August 19, 2014
    ...noted that "[o]ur sister states have found 8.4 (4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn. 2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla. 2008) (failure to appea......
  • Request a trial to view additional results

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