In re Petition for Reinstatement of Scott Selmer, a Minnesota Attorney, Registration No. 156024
Opinion text
STATE OF MINNESOTA
IN SUPREME COURT
A23-0265
Original Jurisdiction Per Curiam
Took no part, Procaccini, J.
In re Petition for Reinstatement of Filed: April 16, 2025
Scott Selmer, a Minnesota Attorney, Office of Appellate Courts
Registration No. 156024.
________________________
James C. Selmer, J. Selmer Law, P.A., Minneapolis, Minnesota, for petitioner.
Susan M. Humiston, Director, Office of Lawyers Professional Responsibility, Saint Paul,
Minnesota, for respondent.
________________________
SYLLABUS
1. The findings of the Lawyers Professional Responsibility Board panel are not
clearly erroneous or inconsistent with our case law.
2. Based on our independent review of the record, the petitioner has not met his
burden of proving moral change or competence to practice law as required for
reinstatement.
Petition denied.
OPINION
PER CURIAM.
In 2015, we indefinitely suspended petitioner Scott Selmer from the practice of law.
Selmer petitioned for reinstatement in February 2023. Following a hearing, a divided panel
1
of the Lawyers Professional Responsibility Board recommended against reinstatement,
determining that Selmer failed to prove by clear and convincing evidence that he had
undergone moral change and was competent to practice law. The dissenting member of
the panel found that Selmer had proven his moral change and that he “can be relied on.”
The Director of the Office of Lawyers Professional Responsibility (the Director) agrees
with the recommendation of the panel to deny reinstatement. Selmer contests the panel’s
findings, conclusions, and recommendation to deny reinstatement.
We determine that the panel’s findings are not clearly erroneous or inconsistent with
our case law. Based on our independent review of the record, we conclude that Selmer has
failed to prove by clear and convincing evidence that he has satisfied the requirements for
reinstatement. We therefore deny his petition for reinstatement.
FACTS
Selmer was admitted to the Wisconsin Bar in 1978 and the Minnesota Bar in 1984.
Since his admission to practice, Selmer has had a lengthy disciplinary history.
Prior Discipline
Selmer was first disciplined in 1990, when the Wisconsin Supreme Court privately
reprimanded him for practicing law with a suspended license.
Five years later, in 1995, we publicly reprimanded Selmer and placed him on two
years’ probation for several violations of the Minnesota Rules of Professional Conduct,
including abusing the discovery process and misusing litigation “to harass his client.” In re
Selmer (Selmer I), 529 N.W.2d 684, 685–88 (Minn. 1995). The Wisconsin Supreme Court
publicly reprimanded Selmer and required that he furnish the Board of Attorneys
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Professional Responsibility a copy of his trust records quarterly. In re Selmer, 538 N.W.2d
252, 253–55 (Wis. 1995).
In 1997, we revoked Selmer’s probation for new disciplinary violations. See In re
Selmer (Selmer II), 568 N.W.2d 702, 705 (Minn. 1997). These violations included
asserting frivolous claims of racial discrimination against creditors to avoid paying his
debts, knowingly making false and misleading statements to support these claims, and
failing to respond to discovery requests. Id. at 704–05. As discipline for the new
violations, we suspended Selmer from the practice of law for 12 months and provided that,
if reinstated, he would be placed on supervised probation for five years. Id. at 705. The
Wisconsin Supreme Court also suspended Selmer from the practice of law for 12 months
as reciprocal discipline. In re Selmer, 595 N.W.2d 373, 374–75 (Wis. 1999).
Three years after we suspended Selmer, he filed a petition for reinstatement. In re
Selmer (Selmer III), 636 N.W.2d 308, 308 (Minn. 2001). In 2001, we granted the petition,
reinstating Selmer to the practice of law and placing him on probation for five years. Id.
at 309. The conditions of Selmer’s probation required him to respond in a timely manner
to the Director’s communications and requests, make a good-faith effort to satisfy
outstanding tax liens and civil judgments, and satisfy a Wisconsin disciplinary judgment.
Id. at 308–09. Just before Selmer’s probation ended, the Director filed a petition to revoke
Selmer’s probation and impose further discipline. See In re Selmer (Selmer IV),
749 N.W.2d 30, 33 (Minn. 2008). The petition alleged that Selmer failed to comply with
the terms of probation, failed to timely file individual income tax returns, and was
convicted of fifth-degree assault in violation of Minn. R. Prof. Conduct 8.4(b). Id. A
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referee held a disciplinary hearing and recommended that we publicly reprimand Selmer
and release him from probation. Id. at 35. We concluded that the recommendation that
Selmer receive a public reprimand was appropriate; however, we rejected the referee’s
recommendation that Selmer be released from probation because Selmer had not fulfilled
all of the probationary conditions we had imposed. Id. at 36–37. Consequently, in addition
to the public reprimand, we placed Selmer on unsupervised probation. Id. at 41. The
Wisconsin Supreme Court reciprocally disciplined Selmer by publicly reprimanding him.
In re Selmer, 761 N.W.2d 6, 7 (Wis. 2009).
Selmer’s next disciplinary matter—which resulted in his current
suspension—occurred seven years later.
Current Suspension
In 2015, we indefinitely suspended Selmer, with no right to petition for
reinstatement for a minimum of 12 months, based on his conduct in several lawsuits
stemming from the suspension of operations of an organization where Selmer served as
president and CEO from 2008 to 2011. In re Selmer (Selmer V), 866 N.W.2d 893,
900–01 (Minn. 2015). His conduct included a pattern of harassing and frivolous litigation,
failure to abide by court orders, and refusal to comply with discovery requests. Id. at
894–95. We observed that Selmer’s dispute with the organization “spanned a significant
number of court files at the state district, federal district, and state appellate levels, all of
which were dismissed based either on the frivolity of Selmer’s arguments or because
Selmer failed to comply with court rules.” Id. at 900. And we concluded that Selmer’s
abuse of the litigation process constituted “serious” misconduct and emphasized that it
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formed a pattern of misconduct occurring over several years. Id. The Wisconsin Supreme
Court reciprocally disciplined Selmer by suspending him from the practice of law for
12 months. In re Selmer, 882 N.W.2d 815, 820 (Wis. 2016).
Our 2015 decision provided that Selmer could petition for reinstatement following
the 12-month suspension if he satisfied the following conditions: (1) made a good-faith
effort to satisfy $11,312 in court-ordered sanctions and costs resulting from the
organizational litigation; (2) provided the Director with a payment plan for satisfying the
judgments against him; and (3) complied with the requirements of Rule 18, Minnesota
Rules on Lawyers Professional Responsibility (RLPR), including successfully completing
the professional responsibility portion of the state bar examination and satisfying
continuing legal education (CLE) requirements, pursuant to Rule 18(e), RLPR. Id. at 901.
Our decision also required Selmer to pay $900 in costs, pursuant to Rule 24, RLPR, and to
comply with Rule 26, RLPR, which requires notice of suspension to clients, opposing
counsel, and tribunals.
Since his suspension in 2015, Selmer has petitioned for reinstatement in Minnesota
three times: in 2018, 2019, and 2023. We dismissed Selmer’s 2018 petition for failure to
pay the filing fee. Selmer withdrew his 2019 petition after he failed the professional
responsibility examination. Selmer’s 2023 petition is at issue here.
Current Reinstatement Proceedings
Selmer filed his current petition for reinstatement in February 2023. In July 2023,
he appeared before a panel of the Lawyers Professional Responsibility Board for a hearing
and was represented by counsel. During that hearing, Selmer’s counsel planned to argue
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that some of the conduct that gave rise to Selmer’s 2015 suspension was not misconduct.
The panel chair explained that a reinstatement hearing was not the proper venue for
contesting the 2015 suspension and advised Selmer of the requirements for reinstatement,
including proving moral change and competence to practice law. Selmer requested a
continuance because his attorney was unprepared to address those requirements.
In March 2024, represented by new counsel, Selmer again appeared before the panel
for a hearing held over two days. At the hearing, Selmer testified about his moral change
and competence to practice law.
Selmer testified that he began to view his behavior differently in May 2023 when
he started therapy. He later clarified that he experienced this change closer to
September 2023, when he commenced therapy with his current therapist, whom he
continues to see. Selmer explained that he used to blame “the system” for the consequences
of his actions, but that his current therapist helped him realize that he is solely responsible.
He acknowledged that he had “repeatedly” harmed himself, his family, the court system,
taxpayers, and opposing counsel by engaging in a “pattern” of wasteful litigation.
Although Selmer could not identify the specific ethical rules he had violated, he agreed
that his misconduct involved “frivolous litigation,” “failing to diligently and competently
handle cases,” “[n]oncompliance with discovery rules and orders,” and “[d]isobeying court
orders.” Regarding his plan for returning to the ethical practice of law, Selmer testified
that he would reenter the legal field as a public defender and work toward becoming a civil
litigator. Selmer admitted that he did not have any written office procedures to facilitate
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his return to the ethical practice of law, but he stated that he would take more CLE seminars
and “start slowly and carefully rebuilding” his legal network.
Selmer also testified about his work history following his 2015 suspension. He
initially obtained a master’s degree in journalism from Columbia University but never
worked as a paid journalist. Then he held several temporary jobs, including one job as a
substitute teacher. But Selmer stopped teaching after his license expired. 1
Selmer filed a petition to be reinstated in Wisconsin in 2020. During his Wisconsin
reinstatement hearing, which was held in November 2020, Selmer testified that he had
problems only when he represented himself and that he “[did not] intend to put [himself]
in those positions.” The Wisconsin Supreme Court reinstated Selmer to the practice of law
on two conditions, that he: (1) enter into a payment plan with the Wisconsin Office of
Lawyer Regulation (WI-OLR) to pay his outstanding judgments and (2) obtain an attorney
mentor.
During his reinstatement hearing in Minnesota, Selmer testified that, following his
reinstatement in Wisconsin, he worked as a public defender with the Office of the
1
The disciplinary committee of the Minnesota Board of Teaching recommended that
the board revoke Selmer’s teaching license based on his failure to report to the board his
2015 suspension from the practice of law. Selmer demanded a contested hearing but failed
to appear for multiple prehearing conferences. Selmer’s license expired before the board
could hear his case. The board dismissed the matter as moot but determined that it had the
authority to revoke Selmer’s license based on immoral character or conduct. Selmer
appealed this determination to the Minnesota Court of Appeals, and the court of appeals
affirmed. In re Selmer, No. A16-1362, 2017 WL 3222321, at *1, *4 (Minn. App. July 31,
2017).
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Wisconsin Public Defender for approximately two years. He was a full-time public
defender from August 2021 until February 2022, but he resigned in lieu of termination due
to a conflict with his supervisor. Selmer then worked as a contract public defender from
February 2022 until September 2023, when he stopped representing clients due to an
illness. According to Selmer, during his time as a Wisconsin public defender, he worked
on hundreds of cases, complied with all court orders, did not receive any ethical complaints,
and did not miss any court hearings. Selmer also testified that he handled a few civil
matters after his reinstatement in Wisconsin, including some estate planning matters and a
business advising matter. The Director did not rebut Selmer’s testimony regarding his
post-reinstatement employment.
In addition to his own testimony, Selmer called four witnesses at the hearing: (1) his
life partner, (2) his friend and former attorney, 2 (3) his Wisconsin attorney mentor, and
(4) an ethics professor at the University of Minnesota Law School.
Selmer’s life partner testified that she had known Selmer for about 20 years and
considered him to be a person “of high integrity.” She also testified that Selmer was calmer
and more deliberate since he began therapy and that he no longer blamed others for his
misconduct. Selmer’s life partner did not provide testimony about Selmer’s competence
to practice law.
Selmer’s friend and former attorney testified that he had known Selmer since around
1980 and was once “jealous” of “how good [Selmer] was” at the practice of law. The
2
This is the same individual who represented Selmer at the July 2023 hearing on
Selmer’s reinstatement petition.
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friend testified that therapy had made Selmer more “present” and “relaxed” and had
equipped him with the skills to respond to challenges “rationally and analytically” instead
of from a place of trauma. Regarding Selmer’s competence to practice law, Selmer’s friend
testified that Selmer was “perfectly competent intellectually and functionally,” as
evidenced by his ability to “get a master’s degree from Columbia University.” Selmer’s
friend further testified that Selmer “knows how to analyze things” and “is very creative
and innovative in his approach to things.” But Selmer’s friend did not testify about
Selmer’s specific competence to practice law.
Selmer’s Wisconsin attorney mentor testified that he met Selmer around 1973, when
he and Selmer were attending the University of Wisconsin Law School, and that they
reconnected when Selmer asked him to serve as his Wisconsin attorney mentor. The
attorney mentor testified that, as Selmer’s mentor, he corresponded with Selmer over the
phone and via email and submitted quarterly reports to WI-OLR. Although Selmer’s
mentor testified that Selmer was “highly competent to practice” law, he admitted that this
opinion was not based on direct observation but on his “recollections of [Selmer’s]
communications and work over previous years.”
Finally, the law school ethics professor testified that he met Selmer around 2018,
when Selmer approached him to discuss the 2015 suspension. The professor testified that
Selmer “is an honest man” who has “made some serious mistakes” that he “acknowledges”
and “understands.” The professor further testified that Selmer was competent to practice
law because he is “honest” and “hardworking.” But he admitted that he was not particularly
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familiar with the conduct leading to Selmer’s suspension and that he had never worked
with Selmer or reviewed his work product.
Following the testimony of Selmer’s witnesses, the panel chair told Selmer and his
counsel that, given the recency of Selmer’s experience in therapy, which Selmer credited
for his moral change, it would be helpful for the panel to hear from Selmer’s therapist.
Selmer declined to call his therapist as a witness.
The Director, who opposed Selmer’s petition, submitted a report to the panel
containing 83 exhibits. In her report, the Director argued that Selmer should not be
reinstated to the practice of law in Minnesota for several reasons. The Director focused on
Selmer’s recent self-representation in several matters, despite his testimony during his
November 2020 Wisconsin reinstatement hearing that he no longer intended to represent
himself in legal matters. These matters included two conciliation court actions that were
brought against Selmer in January and February of 2020; a personal injury case that Selmer
brought against two individuals in August 2020; and a defamation case that Selmer brought
against four financial institutions in June 2022. The Director’s exhibits showed that Selmer
engaged in the same conduct in these more recent matters as he did in the litigation that
gave rise to his suspension. In the conciliation court actions, Selmer failed to file
appearances, resulting in judgments against him. Selmer failed to comply with court orders
and discovery requests in the personal injury case. His discovery violations included
failing to provide required disclosures, failing to provide an itemization of damages, and
failing to respond to interrogatories and requests for information. Finally, in the financial
institution litigation, Selmer failed to file affidavits of service; communicate with the court
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and the defendants; and appear at court hearings, including hearings on the defendants’
motions to dismiss. In that matter, the district court eventually dismissed Selmer’s claims,
concluding they were preempted by federal law.
The Director also submitted a screenshot of Selmer’s professional website.
According to the Director, the website was misleading in that it suggested to the public that
Selmer was licensed to practice law in Minnesota. The website front page stated, “Scott
Selmer Law, LLC, Trial Lawyers,” and it instructed visitors to “Contact Us for Criminal
Defense and Civil Litigation.” It listed a Minneapolis address and a Minnesota phone
number, but it did not provide any information about where Selmer was licensed to practice
or refer to a Wisconsin practice.
Finally, the Director noted that Selmer had failed to satisfy the financial conditions
of his reinstatement, which required him to set up a payment plan to satisfy his outstanding
sanctions and judgments and to make a good-faith effort to pay them. Selmer explained
that he made some payments to satisfy his outstanding sanctions but that he did not have
the income to make additional payments.
After the hearing, the panel issued findings of fact, conclusions of law, and a
recommendation. Two panel members recommended denial of Selmer’s reinstatement
petition. A dissenting member of the panel disagreed with the recommendation.
In a detailed 54-page decision, the majority panel members found that Selmer had
failed to prove by clear and convincing evidence that he had undergone moral change. The
panel’s primary concern was the recency of Selmer’s reported moral change. Additionally,
the panel found that Selmer had failed to prove by clear and convincing evidence that he
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was competent to practice law. The panel cited multiple facts to support this finding,
including the lack of “first-hand knowledge” about Selmer’s work performance and work
product. 3
The dissenting panel member disagreed with the panel’s finding that Selmer had
failed to prove his moral change by clear and convincing evidence. According to the
dissenter, the panel applied the wrong standard, imposing a higher burden on Selmer than
our case law requires. The dissenter found that Selmer proved his moral change by
showing that “through meaningful mental health care, [he] improved his moral position.”
Although the dissenter did not directly address Selmer’s competence to practice law, the
dissent noted that Selmer’s “discipline[-]free time” practicing in Wisconsin showed that
Selmer “can be relied on.” The dissenter recommended reinstatement, subject to several
conditions set out by the majority panel members. 4
Selmer ordered a transcript and now challenges many of the panel’s findings of fact
and conclusions of law. He asks us to reinstate him to the practice of law in Minnesota.
3
The panel also observed that, although Selmer had satisfied some of the conditions
for reinstatement, he had not paid all outstanding sanctions and judgments or set up a
payment plan to do so. Nonetheless, the panel recommended that we consider waiving the
financial conditions if we determine that Selmer has satisfied the other conditions for
reinstatement.
4
These conditions would require Selmer to: (1) enter into strict payment plans to
satisfy his financial obligations, (2) abstain from representing himself and his relatives in
legal matters, (3) meet all court deadlines and comply with all court orders, (4) submit to
an annual audit by the Director, and (5) remain on probation for the rest of his legal career.
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ANALYSIS
The aim of attorney discipline “is not to punish the attorney, but rather to protect
the public, safeguard the judicial system, and deter future misconduct by the disciplined
attorney and other attorneys.” In re Severson (Severson I), 860 N.W.2d 658, 671
(Minn. 2015). When a suspended attorney petitions for reinstatement, we conduct an
independent review of the record before determining whether to reinstate the attorney. In
re Kadrie, 602 N.W.2d 868, 870 (Minn. 1999). Although we consider a panel’s
recommendation regarding reinstatement, it is not binding; we are responsible for
determining whether an attorney will be reinstated. Id.
A significant concern in deciding whether to reinstate an attorney is whether the
attorney will again commit misconduct. See In re Mose (Mose II), 843 N.W.2d 570, 575
(Minn. 2014). In considering whether to reinstate an attorney, therefore, we look for “a
change in the lawyer’s conduct . . . that corrects the underlying misconduct that led to the
suspension.” Id. Stated otherwise, we consider whether the attorney has experienced
“moral change.” In re Mose (Mose III), 993 N.W.2d 251, 257 (Minn. 2023).
“[M]oral change is the most important factor” in determining whether to reinstate
an attorney. In re Stockman, 896 N.W.2d 851, 857 (Minn. 2017). An attorney seeking
reinstatement must prove moral change by clear and convincing evidence. In re Tigue,
960 N.W.2d 694, 700 (Minn. 2021). The attorney must generally “show remorse and
acceptance of responsibility for the misconduct, a change in the lawyer’s conduct and state
of mind that corrects the underlying misconduct that led to the suspension, and a renewed
commitment to the ethical practice of law.” Mose II, 843 N.W.2d at 575. Evidence of
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moral change must come not only from “an observed record of appropriate conduct,” but
from “the [attorney’s] own state of mind and his . . . values.” Stockman, 896 N.W.2d at
857 (citation omitted) (internal quotation marks omitted).
Moreover, to be reinstated, an attorney must prove by clear and convincing evidence
that the attorney is competent to practice law. Mose III, 993 N.W.2d at 260. Our case law
has often referred to this requirement as “intellectual competency to practice law.” See,
e.g., id. (emphasis added) (citation omitted) (internal quotation marks omitted). In the
interest of clarity, from this point forward we refer to this element as “competence to
practice law.”
In addition to proving moral change and competence to practice law, an attorney
seeking reinstatement must prove compliance with both the conditions of suspension and
the requirements of Rule 18, RLPR. 5 Id. at 261 n.5. Our case law has also articulated
additional factors that we consider when evaluating a petition for reinstatement: “the
attorney’s recognition that the conduct was wrong, the length of time since the misconduct
and suspension, the seriousness of the misconduct, [and] any physical or mental pressures
susceptible to correction.” Stockman, 896 N.W.2d at 856 (citation omitted) (internal
quotation marks omitted).
5
Rule 18, RLPR, sets forth the procedures and requirements for reinstatement to the
practice of law in Minnesota. To be reinstated, a suspended attorney must serve a copy of
the petition on the Director, file a petition for reinstatement with this court, and pay a filing
fee. Rule 18(a), RLPR. The attorney must also pass the bar examination, the professional
responsibility portion of the bar examination, and comply with state CLE requirements.
Rule 18(e), RLPR.
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When an attorney petitions for reinstatement, a panel of the Lawyers Professional
Responsibility Board makes factual findings, conclusions, and a recommendation
regarding the petition. Rule 18(c), RLPR. However, either the Director or the attorney
may challenge the panel’s recommendation. Id. Based on our independent review, we
may agree with the panel’s recommendation or make our own determination as to whether
an attorney’s petition for reinstatement should be granted. See Kadrie, 602 N.W.2d at 870
(“The responsibility for determining whether a petitioner will be reinstated rests with this
court.”); see also Tigue, 960 N.W.2d at 699 (explaining that we are not bound by a panel’s
recommendation).
Where, as here, a transcript has been ordered, we will “uphold the panel’s factual
findings if they have evidentiary support in the record and are not clearly erroneous.”
Stockman, 896 N.W.2d at 856. Factual findings are clearly erroneous if, based on our
review of the record, we have a “definite and firm conviction that a mistake has been
made.” In re Lyons, 780 N.W.2d 629, 635 (Minn. 2010) (citation omitted) (internal
quotation marks omitted).
Against this legal backdrop, we now consider Selmer’s petition for reinstatement.
Selmer challenges the panel’s decision, arguing that the panel made clearly erroneous
factual findings and that it committed errors of law. He also asks us to independently
review the record and to conclude that he should be reinstated to the practice of law.
I.
We first consider Selmer’s challenges to the panel’s decision. These challenges fall
into two categories. First, Selmer challenges several factual findings as clearly erroneous.
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Second, citing our decision in In re Trombley, 947 N.W.2d 242 (Minn. 2020), Selmer
alleges that the panel committed errors of law.
A.
As noted, when a party orders a transcript of the panel hearing, we apply clear error
review in considering the panel’s factual findings. Stockman, 896 N.W.2d at 856. We will
uphold factual findings if the record supports them and they are not clearly erroneous. Id.
Selmer contends that the panel clearly erred by: (1) finding that the “evidence of
[Selmer’s] acceptance of responsibility is mixed”; (2) finding that Selmer’s website misled
the public into believing that Selmer was licensed to practice law in Minnesota;
(3) improperly considering Selmer’s self-representation between 2020 and 2023, which
occurred before he began therapy; (4) finding that Selmer was untruthful when he testified
at his Wisconsin reinstatement hearing that he would no longer represent himself in legal
proceedings; (5) “disregard[ing]” testimony about Selmer’s competence to practice law;
and (6) failing to sufficiently credit Selmer’s testimony regarding his recent practice as a
public defender in Wisconsin. We consider each of these alleged errors below.
1.
The panel found that Selmer’s “evidence of acceptance of responsibility [is] mixed.”
Selmer argues that this finding is clearly erroneous because he testified that he understood
“the particulars of his mistakes,” he was “embarrassed” by his past conduct, and he
“unequivocally acknowledged” that his 2015 suspension resulted from his own
misconduct.
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The record supports the panel’s finding. Selmer correctly notes that he testified
during the reinstatement hearing that he had accepted responsibility for his actions. But
there was also evidence from which the panel could infer that Selmer’s acceptance of
responsibility was mixed. Between 2020 and 2023, Selmer engaged in the same behavior
that resulted in his 2015 suspension, including failing to comply with court orders and court
rules, failing to respond to discovery requests, and filing frivolous actions. Selmer did not
satisfy his outstanding sanctions and judgments or work with the Director to create a
payment plan before seeking reinstatement. He did not comply with the payment plan
established in Wisconsin when he was reinstated there. When he petitioned for
reinstatement in Minnesota, Selmer refused to be interviewed by the Director’s office, and
his attorney at the time referred to the Director’s investigation as a “charade.” Selmer
served the Director with “requests for admission” regarding his underlying discipline going
back to 1995, and when the Director objected to responding, he moved to have his requests
for admissions admitted at the first scheduled reinstatement hearing. The panel denied this
motion because requests for admissions are not a tool provided for by Rule 18, RLPR. And
Selmer attended the first scheduled hearing in this matter planning to relitigate some of the
conduct underlying his suspension. Given this evidence in the record, the panel did not
clearly err in finding that Selmer’s acceptance of responsibility was “mixed.”
2.
The panel found that, for much of his suspension, Selmer “has maintained a website
that makes it appear as if he [is] a lawyer practicing law in Minnesota, which [is] a violation
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of the Rules of Professional Conduct since he [is] under suspension.” 6 Selmer contends
that his website did not mislead the public into believing that he was licensed to practice
law in Minnesota because it included true facts—that he had a Minnesota address and
phone number—and it did not explicitly state that he was licensed to practice in Minnesota.
We disagree. According to the record evidence, the website was titled, “Scott
Selmer Law, LLC, Trial Lawyers,” and it instructed visitors to “Contact Us for Criminal
Defense and Civil Litigation.” The only contact information the website provided was a
Minneapolis address, a Minnesota phone number, and Selmer’s email address. The website
did not contain any other information about Selmer or make any reference to Wisconsin.
Based on the information on Selmer’s website, an unwitting member of the public would
believe that Selmer was licensed to practice law in Minnesota when he was not. Therefore,
the panel did not clearly err in finding that Selmer’s website was misleading.
3.
Regarding Selmer’s period of self-representation between 2020 and 2023, the panel
stated:
In assessing the genuineness of [Selmer’s] moral change, the Panel cannot
ignore the fact that from 2020-2023, [Selmer] filed lawsuits in personal
6
The Minnesota Rules of Professional Conduct prohibit “[a] lawyer who is not
admitted to practice in Minnesota” from “hold[ing] out to the public or otherwise
represent[ing] that the lawyer is admitted to practice Minnesota law.” Minn. R. Prof.
Conduct 5.5(b)(2). Additionally, the rules prohibit a lawyer from “mak[ing] . . . false or
misleading communications[s] about the . . . lawyer’s services.” Minn. R. Prof. Conduct
7.1. “A communication is false or misleading if it contains a material misrepresentation of
fact or law, or omits a fact necessary to make the statement considered as a whole not
materially misleading.” Id.
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matters without following court rules or procedures, failed to respond to
discovery or attend hearings or conferences in those matters, and filed a
defamation claim which was preempted by federal law, many of the same
types of conduct that led to his 2015 suspension.
Selmer argues that the panel clearly erred in considering his self-representation during this
period because it occurred before he started therapy.
To the extent that Selmer is arguing that the panel committed an error of law in
considering his conduct between 2020 and 2023, we are not persuaded. Determining
whether an attorney petitioning for reinstatement has proven moral change requires a
holistic assessment, see In re Severson (Severson II), 923 N.W.2d 23, 30 (Minn. 2019), of
the attorney’s conduct during “the time period near the reinstatement hearing,” Trombley,
947 N.W.2d at 248. We have never defined this time period in months or years. But under
the circumstances here—where Selmer was suspended in 2015 and petitioned for
reinstatement in early 2023—the panel would have been remiss if it had ignored Selmer’s
pattern of concerning litigation conduct between 2020 and 2023. Evidence of moral
change must come from “an observed record of appropriate conduct” in addition to “the
[attorney’s] own state of mind and his . . . values.” Stockman, 896 N.W.2d at 857 (citation
omitted) (internal quotation marks omitted).
Moreover, the panel fully acknowledged that Selmer did not represent himself in
any legal matters after commencing therapy. The panel stated, “[Selmer] has not filed any
complaints on his own behalf since he began therapy in May of 2023.” It also
acknowledged Selmer’s testimony that he has learned from his therapy “to defer to legal
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counsel and to listen to other people” because he can “be emotional when directly involved
in some things.”
Under the circumstances here, we discern no error in the panel’s consideration of
Selmer’s conduct both before and after he began therapy. And because the record supports
the panel’s factual findings, they are not clearly erroneous.
4.
The panel found that Selmer’s period of self-representation between 2020 and 2023
was “particularly concerning” because Selmer testified in the Wisconsin reinstatement
proceeding “that he did not intend to represent himself any longer, even though he was at
the time representing himself in a frivolous matter and subsequently commenced another
frivolous matter in which he represented himself.” Selmer challenges this finding as
clearly erroneous because the self-representation occurred before he began therapy in
May 2023.
We disagree. In November 2020, Selmer testified at the Wisconsin reinstatement
hearing that he would avoid representing himself in the future. Selmer stated that he had
problems only when he represented himself and that he “[did not] intend to put [himself]
in those positions.” However, in August 2020, three months before the Wisconsin
reinstatement hearing, Selmer filed a personal injury action for injuries he allegedly
sustained during a car accident in August 2014. Selmer did not mention this litigation
during his Wisconsin reinstatement hearing. Moreover, in June 2022—after the Wisconsin
reinstatement hearing—Selmer filed another action against four financial institutions for
reporting his debts to credit reporting agencies (as they are required to do under the Fair
20
Credit Reporting Act, 15 U.S.C. § 1681s-2(a)(5)). Because Selmer testified that he would
avoid representing himself while he was representing himself in the personal injury matter,
and because Selmer represented himself again just two years later in the financial
institution litigation, the panel did not clearly err in finding that Selmer’s testimony that he
would avoid representing himself in the future was concerning.
5.
Selmer argues that the panel improperly “disregarded” the testimony of his
witnesses regarding his competence to practice law. Of Selmer’s four witnesses, three
addressed his competence: (1) Selmer’s friend and former counsel, (2) Selmer’s
Wisconsin attorney mentor, and (3) the legal ethics professor. Selmer’s friend testified that
Selmer was once a formidable attorney. The Wisconsin attorney mentor testified that he
had a general sense that Selmer was competent to practice law based on his memory of
Selmer’s previous work, but he acknowledged that he was not familiar with Selmer’s
current work. And the ethics professor testified that Selmer had the skills necessary to
practice law but admitted that he did not know Selmer’s work.
Contrary to Selmer’s assertion, the panel did not “disregard[]” the testimony of these
witnesses. The panel detailed the testimony of each witness and summarized its view of
the testimony. As to Selmer’s friend, the panel found that he was a sincere and credible
witness, but that his testimony was not helpful in assessing whether Selmer was currently
competent to practice law because he did not provide specific insight into Selmer’s current
ability to practice. Selmer’s Wisconsin attorney mentor testified that Selmer was
competent, but he admitted that he did not have the expertise to offer an opinion about the
21
public defender work that Selmer had performed in Wisconsin and that he had not reviewed
any of that work. The panel found the attorney mentor to be sincere. But it concluded that
the attorney mentor did not have firsthand knowledge regarding Selmer’s competence.
Finally, the panel found that because the ethics professor had not seen any of Selmer’s
work, his testimony about Selmer’s competence lacked sufficient foundation and factual
basis and was therefore not useful.
The panel also addressed the impact of the witnesses’ testimony on its conclusion
that Selmer had failed to establish his competence by clear and convincing evidence. It
stated, “[Selmer’s] character witnesses did not assist in satisfying his burden of proof
because none of them were able to testify about any specific legal work [Selmer] has
engaged in since 2015, nor did anyone testify to how any insights [Selmer] has gained in
therapy will likely transfer to his legal practice.”
Based on our review of the panel’s decision, we reject Selmer’s argument that the
panel “disregarded” the testimony of Selmer’s witnesses regarding his competence. The
panel considered the testimony of each witness. And the panel expressly factored the
witnesses’ testimony into its conclusion that Selmer had failed to satisfy his burden of proof
as to his competence to practice law.
6.
Relatedly, Selmer argues that, in considering his competence to practice law, the
panel failed to sufficiently credit his testimony about his recent work as a public defender
in Wisconsin. He contends that the panel did not give enough weight to his testimony that
he received no ethical complaints during this period. And, according to Selmer, the panel
22
held him to an impossibly high standard when it faulted him for not producing
corroborating evidence regarding his Wisconsin public defender work.
The panel made multiple factual findings regarding Selmer’s work as a public
defender in Wisconsin, which Selmer does not challenge. It found that Selmer worked as
a public defender in Hudson, Wisconsin from August 2021 until February 2022 when he
“chose to resign his position . . . in lieu of termination,” he worked as a contract public
defender until September 2023, and he handled “up to 250 cases” between February 2022
and September 2023. Moreover, the panel found that Selmer has not been disciplined in
Wisconsin since his reinstatement. It also noted Selmer’s testimony that he had received
no complaints from judges or clients while working as a public defender in Wisconsin.
Indeed, the panel stated that it credited Selmer’s testimony “on these subjects as true and
accurate.”
However, ultimately the panel was not convinced that Selmer’s testimony about his
work as a Wisconsin public defender was clear and convincing evidence of his competence
to practice law. In support of this conclusion, the panel cited other factual findings:
[Selmer] presented no evidence of the type of legal work he did, such
as writing briefs, arguing motions, or trying bench or jury trials. Nor did
[Selmer] offer examples of his written work product or court orders resulting
from his advocacy from which the Panel could assess the quality of his work
in order to determine his intellectual competence. The Panel does not know
whether the 250 cases [Selmer] handled in Wisconsin were all plea bargains
negotiated at a first appearance, or whether they represented efforts by
[Selmer] in complex cases with legal issues requiring extensive legal analysis
or whether they fell across a spectrum of legal difficulty.
Selmer does not challenge any of the panel’s factual findings regarding his work as
a Wisconsin public defender. Because the record supports these factual findings, they are
23
not clearly erroneous. Moreover, to the extent that Selmer is challenging the panel’s
ultimate conclusion that he is not competent to practice law, we are not bound by that
conclusion. See Tigue, 960 N.W.2d at 699. We consider Selmer’s competence to practice
law as part of our independent review of his petition for reinstatement. See infra Part II.
B.
In his second category of challenges to the panel’s decision, Selmer relies on our
decision in Trombley to argue that the panel committed errors of law. Before turning to
Selmer’s specific arguments, we summarize the Trombley decision.
In 2018, we indefinitely suspended attorney Trombley from the practice of law, with
no right to petition for reinstatement for at least six months, for converting funds that
belonged to her stepfather while exercising power of attorney on behalf of her mother.
Trombley, 947 N.W.2d at 244–45. When Trombley’s mother became ill, Trombley
transferred $95,000 from her mother and stepfather’s joint bank accounts to her personal
bank account. Id. at 245. Following her mother’s death, Trombley did not return the funds,
even though they belonged to her stepfather, and she used a portion of the funds for herself.
Id. When an investigation into the missing funds began, Trombley returned the funds on
her own initiative. Id. We suspended Trombley for this misconduct. Id.
While she was suspended, Trombley continued to work for her employer in the
non-legal role of project manager. Id. at 244. Approximately seven months after her
suspension, she petitioned for reinstatement to the practice of law. Id. at 244–45. During
her reinstatement hearing, Trombley testified that she sought therapy after her suspension
and that her therapist helped her understand and accept responsibility for her misconduct.
24
Id. at 248. Trombley’s husband also testified at the hearing. Id. at 245. According to
Trombley’s husband, Trombley recognized her conduct as dishonest only “within these
past five months.” Id. at 247 (internal quotation marks omitted). Based on the evidence
presented at the hearing, the panel concluded that Trombley had not met her burden of
proving moral change, and it recommended denying reinstatement. Id. at 245. The
Director agreed with the panel’s recommendation. Id.
We reversed, determining that the panel erred in finding that Trombley had failed
to prove moral change. Id. at 246. Specifically, we held that the panel had improperly
focused on Trombley’s mental state at the time of the misconduct rather than at the time of
the reinstatement hearing, which is the relevant time period under our case law. Id. at
247–48; see also In re Dedefo, 781 N.W.2d 1, 9 (Minn. 2010) (“[W]e examine a
petitioner’s conduct up to the time of the reinstatement hearing and his or her mental state
and values at that time.”). Because the panel applied the incorrect law, we determined that
its conclusion that Trombley had failed to clearly and convincingly show that she was
remorseful and had accepted responsibility was clearly erroneous. Trombley, 947 N.W.2d
at 248–49. Then, based on our independent review of the record, we concluded that
Trombley had proven by clear and convincing evidence that she had undergone moral
change and had satisfied the other requirements for reinstatement. Id. at 250.
Throughout Selmer’s brief, he argues that the circumstances in his case are
substantially similar to those in Trombley because, like Trombley, he experienced moral
change within a relatively short period of time after commencing therapy. He suggests that
our decision in Trombley proves that the panel erred as a matter of law in recommending
25
denial of his reinstatement petition. However, we reject Selmer’s general comparison of
Trombley to the circumstances here. Trombley engaged in one instance of misconduct
immediately followed by a period of therapy and change. On the other hand, Selmer has
had an extensive disciplinary history spanning several decades and two states. He has been
suspended from the practice of law since 2015. And up until—and even during—the
reinstatement proceedings, Selmer continued to engage in questionable conduct, including
a pattern of irresponsible behavior in his pro se litigation; communicating, through counsel,
that the Director’s investigation was a “charade”; and planning to relitigate the conduct
underlying his 2015 suspension at the first hearing on his reinstatement petition. We
therefore disagree with Selmer that the panel’s recommendation to deny his petition for
reinstatement directly contravenes our decision in Trombley.
Based on our decision in Trombley, Selmer further contends that the panel erred in
(1) suggesting that he call his therapist as a witness regarding his moral change and then
drawing a negative inference from his decision not to call the therapist, (2) incorrectly
weighing the evidence that he presented regarding his moral change, and (3) improperly
focusing on the recency of his asserted moral change. We next consider each of these
challenges.
1.
Selmer argues that the panel improperly suggested that he should call his therapist
as a witness at the reinstatement hearing to prove his moral change. He further contends
that the panel drew a “negative” and “unfounded” inference from his decision not to call
the therapist.
26
As Selmer notes, we have never required a petitioner to present corroborating
testimony of moral change to be reinstated. See In re Sand, 951 N.W.2d 918, 923
(Minn. 2020). Our case law confirms that a petitioner can prove moral change and be
reinstated without such testimony. See id.; see also Trombley, 947 N.W.2d at 246–50
(concluding that the petitioner proved moral change based largely on petitioner’s
testimony).
On its face, the panel chair’s suggestion for Selmer to call the therapist was not
unlawful or inappropriate. Our case law does not prohibit such a request. Likewise, we
are not convinced that the panel made any improper inference from Selmer’s decision not
to call his therapist. Although the two panel members in the majority found it “concerning”
that Selmer was unwilling to call his therapist as a witness, this concern was one of many
that the panel identified regarding Selmer’s evidence of moral change.
Selmer argues that our decision in Trombley highlights the panel’s error in asking
him to call the therapist as a witness. He points out that, in Trombley, we determined that
moral change can be recent and based on less evidence than he presented. See Trombley,
947 N.W.2d at 248–49.
Although we did determine in Trombley that moral change can be recent and that
evidence from a single character witness may be sufficient to prove moral change, our
decision in Trombley is based on the factual circumstances presented there. Nothing in
Trombley suggests that certain evidence will always be sufficient to satisfy a petitioner’s
burden of proof. See id. at 246–50 (discussing moral change). Nor does Trombley hold
that a panel cannot request additional evidence of moral change during a hearing. See id.
27
We discern no error in the panel’s suggestion at the reinstatement hearing that
testimony from Selmer’s therapist would be helpful. Moreover, because the panel’s
findings and legal conclusions do not support Selmer’s related argument that the panel
drew an improper inference from his decision not to call the therapist, we likewise reject
that argument.
2.
Selmer contends that the panel erred in rejecting the testimony of his character
witnesses regarding his moral change. He again relies on Trombley, arguing that he
provided more evidence of moral change than the petitioner in that case by calling more
character witnesses.
We did not hold in Trombley, however, that a panel must always find moral change
based on a particular quantum of evidence. To the contrary, a panel must evaluate each
case based on the evidence presented. See Rule 18(c), RLPR (providing that a panel may
conduct a hearing and shall make findings of fact, conclusions, and recommendations to
this court); cf. Stockman, 896 N.W.2d at 856 (“[W]e uphold the panel’s factual findings if
they have evidentiary support in the record and are not clearly erroneous.”). 7
7
For the same reason, we reject Selmer’s argument that our decision in In re Sanchez
shows that Selmer had undergone moral change. 985 N.W.2d 352, 354 (Minn. 2023).
Sanchez petitioned for reinstatement after being indefinitely suspended from the practice
of law in Minnesota as reciprocal discipline for misconduct that occurred in Nevada. Id.
at 352–53. At the reinstatement hearing, Sanchez testified on his own behalf and presented
the testimony of two family members, who testified that Sanchez was remorseful and had
significantly changed his behavior since his suspension. Id. at 353–54. The panel credited
the witnesses’ testimony, found that Sanchez had proven moral change by clear and
convincing evidence, and recommended that Sanchez be reinstated and placed on
28
In any event, we are not bound by the panel’s ultimate conclusion regarding moral
change. See Tigue, 960 N.W.2d at 699. We consider whether Selmer proved moral change
by clear and convincing evidence as part of our independent review of his petition for
reinstatement. See infra Part II.
3.
Again citing Trombley, Selmer argues that the panel erred in attempting “to pinpoint
an exact time when” his moral change occurred. He contends that the panel “placed undue
emphasis and speculation on the exact time when [he] underwent moral change.” Although
Selmer’s argument is unclear, we construe it as a challenge to the panel’s concern that
Selmer’s moral change was too recent to be genuine.
In Trombley, we determined that the panel had improperly focused on Trombley’s
mental state at the time of her misconduct rather than at the time of her reinstatement
hearing. 947 N.W.2d at 247–48. We further determined, based on the facts presented
there, that Trombley had undergone moral change during the period before her
reinstatement hearing. Id. at 250.
Selmer seems to argue that Trombley—where the attorney’s moral change occurred
within a relatively short period of time—created a rule of law that the timing of moral
change is irrelevant. And based on that premise, he suggests that the panel erred as a matter
of law in focusing on the timing of his purported moral change.
probation. Id. at 353. We agreed that Sanchez had met his burden of proving moral change,
and we reinstated him to the practice of law in Minnesota, subject to several conditions.
Id. at 354. Our decision in Sanchez is based on the particular factual circumstances in that
case.
29
We do not accept Selmer’s premise. Our case law is clear that whether an attorney
has experienced moral change is a fact-intensive and case-specific inquiry. See Severson II,
923 N.W.2d at 30. And, as noted, the facts in Trombley are vastly different from the facts
before us here. Accordingly, the panel did not err as a matter of law in considering the
recency of Selmer’s moral change among the other facts in evidence.
* * *
In sum, we reject Selmer’s challenges to the panel’s decision. The panel’s factual
findings are supported by the record and are not clearly erroneous. Moreover, the panel’s
decision did not misapply our case law.
II.
Selmer asks us to determine, based on our independent review, that he met his
burden of proving by clear and convincing evidence that he should be reinstated to the
practice of law in Minnesota. To be reinstated to the practice of law in our state, an attorney
must prove: “(1) moral change; (2) the . . . competence to practice law; (3) compliance
with the conditions of suspension; and (4) compliance with the requirements of Rule 18,
RLPR.” Mose III, 993 N.W.2d at 261 n.5. We also consider four other factors when
determining whether to reinstate an attorney: “the attorney’s recognition that the conduct
was wrong, the length of time since the misconduct and suspension, the seriousness of the
misconduct, and any physical or mental pressures susceptible to correction.” Id. We now
consider whether Selmer has satisfied the requirements for reinstatement.
30
A.
We first address whether Selmer has proven by clear and convincing evidence that
he has undergone moral change. We independently consider this question, deferring to the
panel’s underlying factual findings and credibility determinations if they have evidentiary
support but not to its ultimate recommendation as to whether the lawyer proved moral
change. See Tigue, 960 N.W.2d at 699. When evaluating moral change, “we examine a
petitioner’s conduct up to the time of the reinstatement hearing and his or her mental state
and values at that time.” Dedefo, 781 N.W.2d at 9. We also defer to a panel’s
determination that a petitioner’s testimony regarding moral change is or is not credible. Id.
Although Selmer testified at his reinstatement hearing that he regretted his past
conduct, we conclude that he has not met his burden of proving moral change.
Generally, to prove moral change, an attorney must show “remorse and acceptance
of responsibility for the misconduct.” Mose II, 843 N.W.2d at 575. An attorney shows
remorse and acceptance of responsibility when the attorney expresses “genuine regret and
moral anguish for his or her conduct and the effect it had on others.” Severson I,
860 N.W.2d at 670. Genuine remorse exists when an attorney “has gradually come to
realize the wrongfulness of his conduct and . . . has ceased blaming others and taken
full responsibility for his actions.” Trombley, 947 N.W.2d at 247 (quoting Dedefo,
781 N.W.2d at 9) (alteration in Trombley). But mere regret about the effect of the
misconduct on the attorney is not sufficient. See Severson I, 860 N.W.2d at 670; In re
Aitken, 787 N.W.2d 152, 163 (Minn. 2010).
31
Selmer did express remorse and accept responsibility for his misconduct during his
reinstatement hearing. However, given Selmer’s history—including the pattern of conduct
that resulted in the 2015 suspension, Selmer’s representation during the Wisconsin
reinstatement proceeding that he would not represent himself in the future and his failure
to keep that promise, his conduct during his recent self-representation, his plan at the first
reinstatement hearing to contest one of the incidents underlying the 2015 suspension, and
the recency of his expressed moral change—we are concerned about the genuineness of
Selmer’s remorse and acceptance of responsibility.
Based on these same facts, we also question whether Selmer has experienced a
change in his state of mind that corrects the misconduct leading to his suspension. See
Mose II, 843 N.W.2d at 575. Selmer’s conduct during the 2020 collection actions, the 2020
personal injury action, and the 2022 financial institution litigation resembled the
misconduct that resulted in his 2015 suspension. During his recent litigation, he failed to
file appearances, comply with court orders, respond to discovery requests, and
communicate with opposing counsel. Selmer also maintained a misleading website that
suggested he was licensed to practice law in Minnesota until at least June 2024, even after
the Director asked Selmer questions about the website and whether it “fully convey[ed] to
the public his practice/licensure status in Minnesota.” And Selmer never set up a payment
plan with the Office of Lawyers Professional Responsibility to satisfy his outstanding
sanctions and judgments in Minnesota, a large portion of which still has not been paid.
Selmer’s recent conduct, which is similar to his long history of misconduct, suggests that
his state of mind has not changed. Although Selmer’s participation in therapy and
32
expressions of regret about his past conduct are hopeful signs that he will undergo a true
change in his state of mind in the future, the evidence does not clearly and convincingly
show that this change has yet occurred.
Selmer likens his circumstances to those in Trombley, where we held—based solely
on the testimony of the attorney and her husband—that the attorney had experienced a
change in her state of mind soon before her reinstatement hearing. Trombley, 947 N.W.2d
at 249. Selmer argues that his moral change is likewise recent but genuine. He also points
out that several witnesses corroborated his testimony about his changed mindset.
However, as discussed, the evidence in Trombley and the factual circumstances here
are divergent. Trombley engaged in a single instance of misconduct, immediately followed
by a period of therapy and change. Selmer has an extensive disciplinary history, which
spans decades and two states. His 2015 suspension resulted from a pattern of misconduct
that occurred over several years. Selmer continued to engage in similar conduct after his
2015 suspension and until recently. And Selmer appeared to deny the wrongfulness of
some of the conduct that resulted in his suspension up until the first hearing held on his
current reinstatement petition. Given the substantial differences between the facts of the
two cases, Selmer’s comparison to Trombley is misplaced.
As Selmer’s brief acknowledges, our case law shows that there is no single formula
for proving moral change. See Sand, 951 N.W.2d at 923 (explaining that we have never
required a petitioner to produce “a specific type of evidence” to prove moral change but
rather have “considered the quality of a petitioner’s evidence”). Whether a petitioner has
presented clear and convincing evidence of moral change is a holistic and case-specific
33
inquiry. See Severson II, 923 N.W.2d at 30 (“The proper inquiry is whether, based on the
entire record, the attorney has met his or her burden of proving moral change by clear and
convincing evidence.”). While one attorney may be able to establish moral change based
solely on his own testimony, another may not. Likewise, while one attorney may be able
to prove moral change through his testimony and the testimony of one or more family
members, another may fall short.
Finally, we are not convinced that Selmer has demonstrated a renewed commitment
to the ethical practice of law. “We do not require that an attorney show an airtight plan to
return to the practice of law.” In re Klotz, 996 N.W.2d 165, 172 (Minn. 2023). But “an
attorney’s plan to return to the practice of law or implement systems to avoid future
misconduct are factors that may be relevant to whether an attorney has shown a renewed
commitment to the ethical practice of law.” Severson II, 923 N.W.2d at 32. When an
attorney’s plan to return to the practice of law is “vague and undefined,” we may conclude
that it does not demonstrate a renewed commitment to ethical practice. See Klotz,
996 N.W.2d at 172–73 (determining that the attorney’s plan to return to practice after an
indefinite suspension, which included seeking mentoring and building a professional
network, was “too vague and undefined” to show a renewed commitment to the ethical
practice of law).
Selmer testified that he would start practicing as a public defender and work toward
becoming a civil litigator. He told the panel that he would use CLE materials to learn “how
to manage law offices,” but he presented no formal plan. Selmer testified that he would
start rebuilding his legal network and lean on his brother and other attorneys for support.
34
He did not testify about specific plans to ethically manage his practice if he were to be
reinstated. We conclude that Selmer’s nonspecific ideas did not sufficiently demonstrate
his renewed commitment to the ethical practice of law.
We laud Selmer’s participation in therapy and his work to gain insight into his
conduct. But based on our independent review of the entire record, we conclude that
Selmer has not met his “heavy burden” of proving moral change by clear and convincing
evidence. Id. at 173. Stated otherwise, we are not convinced, based on the evidence in the
record, that there is a high probability that Selmer has experienced moral change. See In
re Houge, 764 N.W.2d 328, 335 (Minn. 2009). 8
B.
We next address whether Selmer has proven by clear and convincing evidence that
he is competent to practice law. As with moral change, we conclude that Selmer has not
met this burden.
An attorney petitioning for reinstatement must prove by clear and convincing
evidence that the attorney is competent to practice law. Mose III, 993 N.W.2d at 260. We
8
The dissenting panel member expressed concern about the panel majority’s use of
the clear and convincing evidence standard that we articulated in Gassler v. State,
787 N.W.2d 575 (Minn. 2010). In Gassler, we stated that “to prove a claim by clear and
convincing evidence, a party’s evidence should be unequivocal, intrinsically probable and
credible, and free from frailties.” Id. at 583 (citing Kavanagh v. The Golden Rule,
33 N.W.2d 697, 700 (Minn. 1948)). While the panel’s use of the Gassler standard was not
plainly erroneous, we encourage the use of a simpler definition: clear and convincing
evidence “requires a high probability that the facts are true.” Houge, 764 N.W.2d at 334.
The standard is higher than a preponderance of the evidence but lower than proof beyond
a reasonable doubt. Lyons, 780 N.W.2d at 635.
35
impose this requirement on petitioning attorneys “to protect the public, protect the judicial
system, and deter future misconduct.” Id. at 260 n.4 (citation omitted) (internal quotation
marks omitted). Although we have no fixed standard for determining a petitioner’s
competence to practice law, “[w]e generally consider the extent to which petitioner has
remained acquainted with legal matters.” Stockman, 896 N.W.2d at 863 (citation omitted)
(internal quotation marks omitted); see also In re Jellinger, 728 N.W.2d 917, 922
(Minn. 2007) (concluding that the petitioner had “current legal skills and knowledge,
demonstrated by his successful completion of the professional responsibility exam,
satisfaction of his CLE requirements, and his work as a paralegal”); Kadrie, 602 N.W.2d
at 873 (completion of CLE credits and work arranging contracts and assigning legal matters
to counsel was sufficient); In re Trygstad, 472 N.W.2d 137, 139 (Minn. 1991) (completion
of CLE credits and work as a paralegal was sufficient). “[W]ork experience that requires
legal reasoning and case management is one way to show competence to practice law.”
Mose II, 843 N.W.2d at 576. However, “[w]hen an attorney is suspended for incompetence
and lack of diligence, and has not practiced law for an extended period of time, the attorney
must not only pass the bar examination, but also demonstrate legal reasoning and case
management skills through paid- or volunteer-work experience.” Id. at 577; see also In
re Hanson, 454 N.W.2d 924, 926 (Minn. 1990) (CLE credits and work as personal
representative was not sufficient, in part, because petitioner had not practiced law for
35 years).
36
Selmer was admitted to practice law in Minnesota in 1984. After a long history of
misconduct, we suspended Selmer from the practice of law in 2015 due to a pattern of
misconduct related to his work as an attorney. Following his suspension, Selmer did not
practice law for approximately five years. Selmer was reinstated in Wisconsin in 2021,
and according to his testimony at the hearing, he practiced in Wisconsin for a couple of
years before seeking reinstatement here. 9
Notwithstanding Selmer’s testimony that his recent practice in Wisconsin
demonstrates his competence to practice, we have significant concerns. None of Selmer’s
witnesses were able to provide firsthand information regarding Selmer’s current
competence. Selmer’s testimony was the only evidence of competence to practice law. He
testified that since his reinstatement in Wisconsin, he had handled hundreds of cases while
working as a public defender and a few civil matters, including some estate planning
matters and a business advising matter. But Selmer did not provide any specific
information about the type of work that he performed while working as a public defender.
He also acknowledged resigning his public defender position in lieu of termination.
Additionally, Selmer’s conduct during the 2020 collection actions, 2020 personal injury
action, and 2022 financial institution litigation calls his competence into question. Given
these circumstances and based on our independent review of the record, we conclude that
Selmer has not met his burden of proving by clear and convincing evidence that he is
competent to practice law.
9
We have not required Selmer to pass a full bar examination to be readmitted.
37
* * *
Because Selmer did not prove by clear and convincing evidence his moral change
or competence to practice law, 10 we conclude that Selmer has not met his burden of proving
that he is entitled to reinstatement.
Petition denied.
PROCACCINI, J., took no part in the consideration or decision of this case.
10
Given our determination that Selmer failed to prove his moral change or competence
to practice law by clear and convincing evidence, we do not consider the four additional
factors for reinstatement identified in our case law. See Mose III, 993 N.W.2d at 260.
38