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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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No.
94-1319-D
STATE OF WISCONSIN : IN SUPREME COURT
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In the Matter of Disciplinary Proceedings Against SCOTT E.
SELMER, Attorney at Law. |
FILED OCT
10, 1995 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
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
authorities disclosed that Attorney Selmer had not maintained proper trust
accounts, commingled personal and trust account funds, improperly retained in
his trust account some $1200 in fees due him and issued four trust account checks
payable to his employes. Further, one
of his trust accounts was a non-interest-bearing account, contrary to the
Minnesota rules.
Accepting
the Minnesota Supreme Court's findings of fact, the referee concluded that
Attorney Selmer's conduct in these matters violated the following rules: his failure to promptly provide his client
with an accounting of funds he received on her behalf, despite her requests
that he do so, violated SCR 20:1.15(b);[1]
his charging and suing to collect an unreasonable fee and his abuse of the
discovery process in litigation against his client violated SCR 20:1.5(a)[2]
and 3.1(a)(3);[3] his failure
to maintain proper trust account records, his false certification that he had
done so and his commingling of personal and client funds in his trust accounts
violated SCR 20:1.15(a), (d) and (g)[4]
and SCR 20:8.4(c).[5]
On
the basis of that misconduct, the Minnesota Supreme Court publicly reprimanded
Attorney Selmer and placed him on two years' probation on terms which included
that he maintain books and records concerning his law office income and
expenses and funds held on behalf of clients and make those books and records
available to the disciplinary authorities upon their request and provide copies
of all required monthly reconciliation and trial balances. The referee in this proceeding recommended
that the same discipline be imposed. The
referee further recommended that Attorney Selmer be required to pay the costs
of the proceeding, with an exception, to which the Board agreed, of the cost of
the client's travel to Wisconsin in connection with this proceeding.
We
adopt the referee's findings of fact and conclusions of law concerning Attorney
Selmer's professional misconduct in these matters. A public reprimand, together with the condition of submitting
trust account records to the Board, is appropriate discipline for that
misconduct.
IT
IS ORDERED that Attorney Scott E. Selmer is publicly reprimanded as discipline
for professional misconduct.
IT
IS FURTHER ORDERED that for a period of two years, commencing the date of this
order, Scott E. Selmer shall furnish to the Board of Attorneys Professional
Responsibility quarterly or as the Board may otherwise direct a copy of his
trust account records as specified by the Board.
IT
IS FURTHER ORDERED that within 60 days of the date of this order Scott E.
Selmer pay to the Board of Attorneys Professional Responsibility the costs of
this disciplinary proceeding as recommended by the referee, provided that if
the costs are not paid within the time specified and absent a showing to this
court of his inability to pay the costs within that time, the license of Scott
E. Selmer to practice law in Wisconsin shall be suspended until further order
of the court.
SUPREME COURT OF WISCONSIN
Case No.: 94-1319-D
Complete Title
of Case: In the Matter of Disciplinary
Proceedings Against
Scott E. Selmer,
Attorney at Law.
________________________________
DISCIPLINARY PROCEEDINGS AGAINST SELMER
Opinion Filed: October 10, 1995
Submitted on Briefs:
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS:
[1] SCR 20:1.15(b) provides, in pertinent
part: Safekeeping property.
. . .
(b) Upon receiving funds or other property in
which a client or third person has an interest, a lawyer shall promptly notify
the client or third person in writing.
Except as stated in this rule or otherwise permitted by law or by
agreement with the client, a lawyer shall promptly deliver to the client or
third person any funds or other property that the client or third person is
entitled to receive and, upon request by the client or third person, shall
render a full accounting regarding such property.
[2] SCR 20:1.5 provides, in pertinent part: Fees
(a) A lawyer's fee shall be reasonable.
[The
factors to be considered in determining the reasonableness of a fee are set
forth in subs. (1) through (8).]
[3] SCR 20:3.1 provides, in pertinent part: Meritorious claims and contentions
(a) In representing a client, a lawyer shall
not:
. . .
(3) file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the client when the
lawyer knows or when it is obvious that such an action would serve merely to
harass or maliciously injure another.
[4] SCR 20:1.15
provides, in part: Safekeeping
property.
(a) A lawyer shall hold in trust, separate from
the lawyer's own property, property of clients or third persons that is in the
lawyer's possession in connection with a representation. All funds of clients paid to a lawyer or law
firm shall be deposited in one or more identifiable trust accounts ... and no
funds belonging to the lawyer or law firm except funds reasonably sufficient to
pay account service charges may be deposited in such an account. ...
. . .
(d) When, in the representation, a lawyer is in
possession of property in which both the lawyer and another person claim
interests, the property shall be treated by the lawyer as trust property until
there is an accounting and severance of their interests. If a dispute arises concerning their
respective interests, the portion in dispute shall continue to be treated as
trust property until the dispute is resolved.
. . .
(g) A member of the State Bar of Wisconsin shall
file with the State Bar annually, with payment of the member's State Bar dues
or upon such other date as approved by the Supreme Court, a certificate stating
whether the member is engaged in the private practice of law in Wisconsin and,
if so, the name of each bank, trust company, credit union or savings and loan
association in which the member maintains a trust account, safe deposit box, or
both, as required by this section. Each
member shall explicitly certify therein that he or she has complied with each
of the record-keeping requirements set forth in paragraph (3) hereof. ...