Clarifying the Reinstatement Burden: Minnesota Endorses “High-Probability” Clear-and-Convincing Standard and Requires Corroborated Proof of Competence

Introduction

In In re Petition for Reinstatement of Scott Selmer, 19 N.W.3d 457 (Minn. 2025), the Minnesota Supreme Court denied the reinstatement petition of attorney Scott Selmer, who has a lengthy disciplinary history in Minnesota and Wisconsin. The court’s per curiam opinion does more than decide a single lawyer’s fate: it tangibly refines how petitioners must prove moral change and competence to practice law, subtly adjusts how tribunals should articulate the clear-and-convincing evidence burdens in reinstatement proceedings, and underscores that out-of-state, discipline-free practice—without concrete, corroborated proof—will not carry the competency element.

Key issues included whether the petitioner:

• Proved “moral change” by clear and convincing evidence, including genuine remorse, acceptance of responsibility, and a demonstrable change in the state of mind that corrects past misconduct.
• Proved “competence to practice law” (the court’s updated term for “intellectual competency”) by clear and convincing evidence.
• Met additional procedural and conditional requirements for reinstatement under Rule 18 of the Minnesota Rules on Lawyers Professional Responsibility (RLPR).

Parties: Petitioner Selmer (represented by counsel) and the Director of the Office of Lawyers Professional Responsibility (OLPR), who opposed reinstatement. A divided Lawyers Professional Responsibility Board (LPRB) panel recommended denial; the dissent would have reinstated under stringent conditions.

Summary of the Opinion

• The Supreme Court upheld the panel’s factual findings under clear-error review and conducted an independent review of whether reinstatement standards were met.
• Holding: Selmer did not prove by clear and convincing evidence either (1) moral change or (2) competence to practice law. Petition denied.
• Doctrinal refinements:
  • Terminology: The court will refer to the second reinstatement element as “competence to practice law” (rather than “intellectual competency”).
  • Standard of proof: The court “encourage[s]” use of the simpler Houge formulation of clear and convincing evidence—requiring a “high probability that the facts are true”—instead of the more stringent, older phrasing in Gassler (“unequivocal, intrinsically probable and credible, and free from frailties”).
  • Moral change: The court reaffirmed a holistic, time-of-hearing focus and clarified that panels may consider the recency of asserted change as one factor. The court distinguished, rather than expanded, its earlier reinstatement decision in Trombley.
  • Competence: Uncorroborated, generalized testimony and a discipline-free stretch of practice (especially in another jurisdiction) are insufficient; petitioners should supply specific, verifiable evidence of current legal skills and case-management competence.

Background and Procedural History

Selmer was admitted in Wisconsin (1978) and Minnesota (1984). His disciplinary history spans decades:

• 1990 (WI): Private reprimand for practicing while suspended.
• 1995 (MN—Selmer I): Public reprimand and probation for discovery abuse and misusing litigation to harass a client; reciprocal discipline in WI with trust-account monitoring.
• 1997 (MN—Selmer II): 12-month suspension for frivolous discrimination claims to avoid paying debts, knowingly false statements, and discovery violations; reciprocal suspension in WI.
• 2001 (MN—Selmer III): Reinstated with five-year probation, including addressing tax liens and judgments.
• 2008 (MN—Selmer IV): Public reprimand and continued probation for probation violations, late tax filings, and a misdemeanor assault conviction; WI reciprocal public reprimand.
• 2015 (MN—Selmer V): Indefinite suspension (min. 12 months before petition) for a pattern of harassing and frivolous litigation, rule violations, and defiance of court orders across multiple forums; WI reciprocal 12-month suspension.

Conditions for a future Minnesota petition included satisfying sanctions/costs, proposing a payment plan, passing the professional responsibility (PR) exam, and complying with CLE requirements. After a failed and withdrawn prior petition, Selmer filed the present petition in February 2023. Following a two-day hearing in March 2024, a divided LPRB panel recommended denial. The Director agreed; Selmer sought Supreme Court review.

Analysis

Precedents Cited and Their Role

• Selmer decisions:
  • Selmer I, 529 N.W.2d 684 (Minn. 1995); Selmer II, 568 N.W.2d 702 (Minn. 1997); Selmer III, 636 N.W.2d 308 (Minn. 2001); Selmer IV, 749 N.W.2d 30 (Minn. 2008); Selmer V, 866 N.W.2d 893 (Minn. 2015). These chart the petitioner’s long disciplinary history and frame the gravity and persistence of misconduct culminating in the 2015 indefinite suspension.
• Standards governing reinstatement:
  • In re Kadrie, 602 N.W.2d 868 (Minn. 1999): The Supreme Court conducts an independent review and is not bound by panel recommendations.
  • In re Stockman, 896 N.W.2d 851 (Minn. 2017): Moral change is “the most important factor”; panel findings are reviewed for clear error when a transcript is ordered.
  • In re Mose (Mose II), 843 N.W.2d 570 (Minn. 2014) and Mose III, 993 N.W.2d 251 (Minn. 2023): Define and emphasize moral change; competence to practice law must be proved by clear and convincing evidence; out-of-practice attorneys suspended for incompetence/lack of diligence must show legal reasoning/case management through work experience.
  • In re Severson (Severson I), 860 N.W.2d 658 (Minn. 2015) and Severson II, 923 N.W.2d 23 (Minn. 2019): Discipline’s purposes and the holistic moral-change inquiry.
  • In re Tigue, 960 N.W.2d 694 (Minn. 2021): The court is not bound by a panel’s recommendation on ultimate questions like moral change.
  • In re Dedefo, 781 N.W.2d 1 (Minn. 2010): Assess the petitioner’s conduct, mental state, and values “up to the time of the reinstatement hearing.”
  • In re Trombley, 947 N.W.2d 242 (Minn. 2020): A petitioner may prove recent moral change; focus must be at the time of the hearing, not solely at the time of misconduct. Distinguished here due to materially different facts.
  • In re Sand, 951 N.W.2d 918 (Minn. 2020): No categorical requirement for corroborating witness testimony to prove moral change.
  • In re Sanchez, 985 N.W.2d 352 (Minn. 2023): Reinstatement granted based on credited testimony showing moral change; emphasized case-specific nature of the inquiry.
  • In re Jellinger, 728 N.W.2d 917 (Minn. 2007); Trygstad, 472 N.W.2d 137 (Minn. 1991); Hanson, 454 N.W.2d 924 (Minn. 1990): Examples of competency showings and when CLE and related experiences suffice or do not suffice.
• Standards of proof:
  • Houge, 764 N.W.2d 328 (Minn. 2009): Clear and convincing evidence means a “high probability” that the facts are true. The court encourages using this articulation in reinstatement cases.
  • Gassler, 787 N.W.2d 575 (Minn. 2010): Older formulation—“unequivocal, intrinsically probable and credible, and free from frailties”—noted but disfavored for clarity.
• Standards of review:
  • Lyons, 780 N.W.2d 629 (Minn. 2010): Clear-error standard—findings are clearly erroneous only if the reviewing court has a firm and definite conviction a mistake was made.
• Rules of Professional Conduct implicated:
  • Rule 5.5(b)(2) (unauthorized practice/holding out as admitted in Minnesota); Rule 7.1 (false or misleading communications).
  • Rule 18, RLPR (reinstatement procedures/requirements); Rule 24 (costs); Rule 26 (notice of suspension).

Legal Reasoning and Application

The court’s approach proceeds in two layers: (1) review of the panel’s factual findings (clear error), and (2) independent determination of whether reinstatement criteria are met.

1) Upholding the panel’s factual findings

• Acceptance of responsibility “mixed.” The record showed recent conduct inconsistent with acceptance, including self-representation in new suits (2020–2022) with familiar rule violations, refusal to cooperate with OLPR (e.g., “charade” remark), and a desire at the first hearing to relitigate past misconduct. Not clearly erroneous.
• Misleading website. The site’s Minnesota address, phone, “Trial Lawyers,” and “Contact Us for Criminal Defense and Civil Litigation”—without licensure disclosure—would lead a reasonable consumer to believe Selmer was licensed in Minnesota during his suspension. This supports a Rule 5.5(b)(2)/7.1 concern and weighs against moral change.
• Self-representation before therapy still relevant. Moral change must be assessed holistically and near the hearing; pre-therapy conduct (2020–2023) with repeated litigation failings was properly considered alongside post-therapy behavior.
• Contradictory Wisconsin testimony. Selmer told the Wisconsin tribunal in November 2020 he would avoid self-representation but was then already pro se in an August 2020 personal-injury case and filed another pro se suit in 2022. The panel’s concern was warranted.
• Witness testimony on competence. Three supporting witnesses—friend/former counsel, Wisconsin mentor, and an ethics professor—lacked firsthand knowledge of current casework or work product. The panel did not “disregard” their evidence; it reasonably found it weak on core questions.
• Wisconsin public defender work. The panel credited Selmer’s testimony that he handled many cases and had no complaints, but found an absence of corroborating detail (e.g., motions, briefs, orders, supervisor evaluations, metrics of performance) to demonstrate current competence.

2) Independent review: failure to prove moral change and competence

Moral change requires more than contrition; it requires proof of a deep shift in mindset and behavior that addresses the roots of the misconduct. The court found:

• Remorse and responsibility: While expressed, they were undermined by years of similar, recent conduct (noncompliance with court rules/orders; pro se litigation; failure to set up payment plans; a misleading website; resistance to OLPR’s process).
• Recency and genuineness: Therapy began in 2023 and was credited as positive, but the court was not persuaded that a clear, convincing, and durable change had yet taken hold given the trajectory from 2015–2023.
• Renewed commitment to ethical practice: Vague plans—“start slowly,” take CLEs, rebuild a network, consider public defense—without concrete systems (written office procedures, calendaring/docketing, supervisory or mentoring structures in Minnesota, compliance protocols) were insufficient under decisions like Klotz and Severson II.
• Trombley distinguished: Trombley involved one episode of misconduct, prompt therapy, and a clean record thereafter. Selmer’s multi-decade pattern, continued issues after suspension, and recent contradictions placed him far from the Trombley fact pattern.

Competence to practice law must be proved by clear and convincing evidence. The court emphasized that:

• Generalized assertions are not enough. Without examples of work product, court rulings reflecting advocacy quality, supervisor assessments, or other concrete indicia of performance, “hundreds of cases” as a Wisconsin public defender did not satisfy the high-probability standard.
• Recent pro se failings undercut the showing. Missed appearances, discovery noncompliance, and suits dismissed on legal grounds (including preemption) weigh against competence.

The Court’s Clarifications and Subtle Doctrinal Moves

• Terminological clarity: The court will use “competence to practice law” instead of “intellectual competency,” reducing the risk that “intellectual” be misread as a purely cognitive test rather than a holistic, practice-oriented inquiry into legal reasoning and case management.
• Clear-and-convincing standard: The court encourages the Houge “high probability” articulation in reinstatement matters, signaling a preference for clarity and practical application over Gassler’s more elaborate phrasing. Expect panels and litigants to adopt the Houge formulation.
• Moral change timing: Recency may be considered without violating Trombley. Panels should look holistically at conduct and mindset “near the hearing” while recognizing that recent behavioral shifts can be genuine—but must be proven by persuasive evidence, internal and external.
• Therapy evidence: There is no categorical requirement to present therapist testimony (see Sand). Panels may ask for it, and may consider its absence among other factors, but may not convert it into a rigid prerequisite.
• Marketing while suspended: The opinion spotlights how websites can “hold out” Minnesota licensure in violation of Rule 5.5(b)(2) and mislead under Rule 7.1. Clear licensure disclosures and jurisdictional limits are essential, especially for suspended lawyers practicing elsewhere.
• Out-of-state practice is not dispositive: Discipline-free work in another jurisdiction can help, but without corroborated, substantive evidence of current skills it will not meet the competence burden in Minnesota.

Likely Impact on Future Reinstatement Petitions and Legal Ethics Practice

• Proof package expectations will rise:
  • Moral change: Expect panels to ask for external corroboration—e.g., sustained compliance behavior, financial responsibility (sanctions/judgments payment plans), cooperation with OLPR, and if applicable, carefully framed therapist or mentor testimony.
  • Competence: Petitioners should anticipate the need for concrete proof—representative briefs/motions (redacted as needed), court orders reflecting advocacy outcomes, supervisor or mentor evaluations, case metrics, and descriptions of handled matter complexity.
• Standard-of-proof articulation: The Houge “high probability” language will likely become the default in reinstatement orders and panel decisions, aiding consistency and predictability.
• Website and public communications: Suspended attorneys must avoid any suggestion of Minnesota licensure. Explicit jurisdictional disclaimers and careful phrasing are critical to avoid 5.5(b)(2)/7.1 concerns.
• Recency of change: Recent therapy-driven change can suffice in the right case (Trombley), but where there is a long pattern or continuing violations up to the reinstatement period, recency will be a vulnerability without strong, corroborated evidence of transformation.
• Cross-jurisdictional reinstatement: Reinstatement in one state (e.g., Wisconsin) will not compel Minnesota to reinstate. Minnesota will independently assess the record under its own standards.
• Conditions can’t cure foundational shortfalls: Even with creative conditions (probation, audits, payment plans, restrictions on self-representation), the court will deny reinstatement if moral change and competence are not established by clear and convincing evidence.

Complex Concepts Simplified

• Moral change: Proof that the lawyer has genuinely changed the mindset and habits that produced the misconduct. It typically includes:
  • Genuine remorse and acceptance of responsibility (no excuse-making or blame-shifting).
  • Behavioral change consistent with ethical duties (e.g., compliance with court orders, cooperation with regulators, responsible communications).
  • A concrete plan showing renewed commitment to ethical practice (procedures, mentoring, calendaring/docketing, conflicts and intake systems).
• Clear and convincing evidence: More persuasive than “more likely than not,” but less than “beyond a reasonable doubt.” In Minnesota, it means there is a “high probability” the facts are true.
• Competence to practice law: Not just knowledge of law; includes demonstrated legal reasoning, diligence, case management, and adherence to professional rules. Proof often includes work product, judicial feedback, supervisor or mentor evaluations, and continuing legal education.
• Independent review vs. deference to panel: The Supreme Court independently decides reinstatement. It accepts panel fact findings unless clearly erroneous but is not bound by the panel’s recommendation on the ultimate legal question.
• Rule 18, RLPR: Governs reinstatement procedures (petition, fees), and educational requirements (PR component of bar exam and CLE compliance). Separate from proving moral change and competence.
• Holding out (Rule 5.5) and misleading communications (Rule 7.1): Lawyers not admitted (or suspended) in Minnesota cannot suggest they are authorized to practice there. Any public communications about services must not mislead about licensure.

Practical Guidance for Future Petitioners

• Document moral change comprehensively:
  • Provide consistent, sustained post-misconduct conduct (e.g., meeting deadlines, complying with orders, transparent communications).
  • Show financial responsibility: enter payment plans, make documented good-faith payments, and coordinate with OLPR.
  • Consider corroboration: therapist letters or testimony (if appropriate), mentor reports, judicial or supervisor testimonials, and any verifiable indicators of changed behavior.
• Prove competence with specifics:
  • Submit recent work product (with redactions), case summaries describing legal complexity, and outcomes showing advocacy quality.
  • Gather supervisor/mentor appraisals, courtroom metrics (e.g., motion practice, trial experience), and CLE transcripts tailored to practice gaps.
• Avoid pitfalls:
  • Do not engage in pro se litigation that replicates past misconduct.
  • Ensure websites and marketing clearly and accurately state licensure jurisdictions; avoid any implication of Minnesota authorization during suspension.
  • Cooperate fully and respectfully with OLPR; do not attempt to relitigate underlying discipline in reinstatement proceedings.
• Present a concrete plan to practice ethically:
  • Written office procedures (docketing, conflicts, trust accounting), identified mentors/supervisors, proposed probationary conditions, and measurable checkpoints.

Conclusion

The Minnesota Supreme Court’s denial of reinstatement in Selmer is grounded in two decisive determinations: the petitioner did not show, by clear and convincing evidence, either moral change or competence to practice law. The opinion refines the doctrinal landscape in several useful ways. It standardizes terminology (“competence to practice law”), encourages the Houge “high probability” articulation of clear and convincing evidence for reinstatement matters, confirms that recent change can be considered but must be shown through robust evidence, and emphasizes that competence requires concrete, corroborated proof—not merely generalized assertions or unverified claims of case volume.

For petitioners and panels alike, Selmer delivers a practical blueprint: assemble a record that convincingly ties a petitioner’s internal transformation to sustained, externally verifiable conduct, and provide precise, work-based evidence of present-day competence. Without that showing, even stringent proposed conditions cannot substitute for the core prerequisites of moral change and competence. The decision thus reinforces the protective purposes of lawyer discipline—public protection, judicial integrity, and deterrence—while offering clearer guideposts for future reinstatement efforts in Minnesota.