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The Respondent, Andrew Salentine, lives in
San Francisco, California.
On September 18, 2007, the Office of Lawyer
Regulation (OLR) received a submission from
a circuit court judge regarding conduct by
the Respondent that the judge believed
violated Supreme Court Rules governing
candor toward a tribunal. The conduct
reported by the judge took place in the
context of a civil action that, at the time,
was pending in the judge’s court.
Respondent graduated from Marquette
University Law School in 1992 and was
admitted to practice in Wisconsin on May 18,
1992. After graduation from law school,
Respondent moved to California and has lived
there ever since. Respondent maintained his
status as an active member of the Wisconsin
bar until October 31, 2001, when he was
suspended for non-payment of dues.
Respondent was reinstated from his
administrative suspension on February 15,
2006 and he has had an active Wisconsin law
license since that time. Respondent is also
licensed to practice law in California.
Respondent’s mother and his two sisters
owned a Limited Liability Corporation
(LLC). For several years, the LLC had
employed a man as an independent
contractor. The man was also a personal
friend of the Respondent’s family.
According to Respondent, the relationship
between the man and some of his family
members began to deteriorate in 2006, and
the man started a competing travel business
with some other LLC employees while still
employed by the LLC. As a result, the LLC
terminated the man and some other employees
and commenced a lawsuit against them on
November 3, 2006.
On November 3, 2006, Respondent signed a
sworn affidavit in support of the LLC’s
complaint. In the affidavit, Respondent
stated, “I am the Business & Legal Advisor
to [LLC], which does business under the name
of [company name].” The LLC’s complaint
also described Respondent as the
LLC “Business and Legal Advisor.”
A series of emails in 2003 between or among
Respondent and the man, his sisters and his
mother illustrate Respondent’s involvement
in advising the LLC with respect to business
and legal matters. For example, a May 6,
2003 email from Respondent to the man
transmits Respondent’s final draft of a new
employee contract. In the email, Respondent
states, in part:
This essentially is a 2 year guaranteed
contract for her and we can only terminate
her for cause. That is OK because I think
she is worth it. I did not change the
language on the health insurance but let me
know if I need to do so.
Another example is a March 14, 2003 email
from Respondent to the man and his family
members on the subject of a specific
contract. In the email, Respondent
stated, “Here are my redlined changes for
your review. Let me know if anything else
needs to be changed.”
A number of 2006 emails further exemplify
Respondent’s participation in the LLC’s
business affairs and legal matters. For
example, a series of emails in July 2006
refer to or contain advice from Respondent
about possible drug use by an employee and
how to deal with it. Another group of
emails in July 2006 involve Respondent’s
opinion and advice about an agreement having
to do with the LLC’s liability for certain
telephone charges.
Additionally, between July 2006 and October
2006, Respondent was included in numerous
email exchanges involving various LL C
business issues and decisions. One of many
examples is a July 31, 2006 email from
Respondent to the man with a subject
line “RE: Profitability.” In the email,
Respondent made several statements,
including:
I have not seen all the numbers or done
the
comps. But if your numbers are correct, then
I have several concerns…
-we have to make operations profitable on
their own without overrides and that is not
the case right now
-the money from [a business] and [a
business] should really be additional bonus
money for paying off debt and acquisitions…
-I have no visibility of when I will get
paid back on the remainder of my note from
July of 2003.
We need to get $10m in revenue. Where is
the plan of how we are going to bring in new
sales and new acquisitions???...
Please call me to discuss.
In an August 22, 2006 email to the man,
Respondent talked about setting up weekly
management meetings in which Respondent
would be included. In an October 19, 2006
email to the man, Respondent again mentioned
the money the LLC owed him. In the email,
Respondent states, “At a minimum, my records
are correct and show that the gross amount
still owed to me is 88K taking into account
the principle and interest owned to me per
the note I have with [LLC].”
On February 27, 2007, the man and some of
the other defendants in the lawsuit filed a
third-party complaint against Respondent,
his mother and his sisters.
On May 8, 2007, Respondent, through his
attorney, filed a motion to dismiss the
third-party complaint against him for lack
of personal jurisdiction over him under
§801.05 Wis. Stats.
On May 4, 2007, Respondent signed a sworn
affidavit which was filed on May 8, 2007 in
support of his motion to dismiss. In the
affidavit, Respondent attested, among other
things:
I am not, nor have I ever been,
personally
an employee, shareholder, officer or
director of [LLC].
I have never had an office at [LLC], nor
a
business card, an e-mail address, nor any
other connection which would affiliate me
with [LLC] or its division, [company name].
I do not presently, nor have I ever,
received any income from [LLC].
I do not personally own or control any
property within the State of Wisconsin…
-
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Emphasis added.
A hearing was held on Respondent’s motion to
dismiss. The hearing commenced on June 15,
2007 and concluded on August 1, 2007.
Respondent testified by telephone on August
1, 2007. The above-referenced emails, in
addition to other emails, were introduced at
the hearing. Most of the emails were
adverse counsel’s exhibits, although a few
were offered by Respondent’s attorney.
At the August 1, 2007 hearing, evidence was
adduced that Respondent signed a July 2,
2002 mortgage note with his parents, secured
by a mortgage on his parents’ Wisconsin
home. A July 2, 2002 quit claim deed from
his parents as grantors to his parents and
Respondent as grantees was also introduced
at the hearing. Both the mortgage and the
quit claim deed were adverse counsel’s
exhibits.
At the August 1, 2007 hearing, Respondent
testified that he cosigned for his parents’
mortgage. During direct testimony,
Respondent’s attorney asked him, “Do you pay
any bills on that house?” Respondent
responded “No.”
With respect to the quit claim deed,
Respondent testified that while he knew he
was a “cosigner” on his parents’ mortgage, “…
I didn’t know I was on the deed, and the
first time I had seen that was when the
exhibits came back and I reviewed them.”
During questioning by adverse counsel about
Respondent’s parents’ home, the following
colloquy occurred:
Q. And could you – you’re on the
mortgage for that property?
A. Yeah, I believe I cosigned on the
mortgage like ten years ago or something,
but I’m not paying on it.
Q. You couldn’t deduct any portion of
the interest paid on the mortgage loan on
your income tax return unless you were an
owner, could you?
Q. Well, was that your judgment as a
lawyer, that it would be – you certainly
have a better chance of sustaining the
deduction if you were on the deed?
A. I don’t know, I’m not a tax attorney.
Q. And isn’t that why you asked your
parents to make you a co-owner of the
property?
[Respondent’s attorney] Objection,
foundation.
In a letter to an OLR intake investigator,
Respondent reiterated that he had not known
he was on the deed to his parents’ home when
he signed the May 4, 2007 affidavit and,
referring to the transcript of his August 1,
2007 testimony, stated:
I also explained to the court…that I have
never had any control over the home, I have
never lived in the home and my parents make
all decisions and payments regarding the
home.
In his response to questions from OLR staff
about whether Respondent deducted interest
paid on his parents’ mortgage loan on his
income tax returns, Respondent stated that
in 2002, when Respondent’s parents were
experiencing financial difficulties, he
agreed to act as a guarantor for their
mortgage loan. Upon request for more
detailed information about any mortgage
interest deductions, Respondent submitted
Schedule A from his 2002, 2003 and 2004
federal tax returns. Those documents show
that Respondent claimed itemized deductions
on his federal tax returns for 2002, 2003
and 2004 of $12,018, $12,891, and $11,832,
respectively, for interest he paid on his
parent’s mortgage. Respondent said he had
not made any mortgage payments on his
parents’ home since 2004 and reiterated that
he had not known he was on the deed to his
parents’ home when he signed the May 4, 2007
affidavit.
Respondent states that his testimony on
August 1, 2007 that he was “not paying” on
his parents’ mortgage and that his response
of “No” to the question, “[D]o you pay any
bills on that house?” was truthful because
he was not making payments on the home at
the time he made the statements. Likewise,
Respondent states that his statement to an
OLR intake investigator that his
parents “make all…payments regarding the
home,” was truthful because he was not
making mortgage payments for his parents at
the time he made the statement and had not
made any such payments since 2004.
In response to a request for a copy of the
note executed in connection with the loan
Respondent made to the LLC, which Respondent
mentioned in his July 31, 2006 and October
19, 2006 emails, Respondent said he was
unable to locate the note or documentation
that one was prepared, so his email
references to a note must have been in error.
Respondent did not disclose to the court
that, at the time he made his motion to
dismiss for lack of personal jurisdiction,
he was a licensed and active member of the
Wisconsin bar and that he had been admitted
to practice in Wisconsin in 1992.
At the conclusion of the hearing on August
1, 2007, the judge denied Respondent’s
motion to dismiss and stated that the motion
was frivolous. The judge found that
Respondent had substantial contacts with the
state, including numerous connections to the
LLC as an advisor and negotiator, ownership
of real property, a mortgage obligation, and
ownership of a note on which he was owed
interest.
Based on the court’s ruling, adverse counsel
made a motion for sanctions. Just prior to
the hearing on the sanctions motion, the
judge said he learned that Respondent was a
licensed active member of the Wisconsin bar
and had been admitted to practice in
Wisconsin in 1992.
At the hearing on the motion for sanctions,
the judge questioned Respondent’s attorney
extensively about Respondent’s Wisconsin bar
membership. The judge opined that
Respondent’s Wisconsin bar membership was
highly relevant, if not dispositive, to the
question of whether the court had personal
jurisdiction over Respondent.
At the conclusion of the hearing, the judge
awarded sanctions against Respondent and his
attorney, but found Respondent to be
primarily at fault, and therefore
apportioned the sanctions 75% and 25%
between them, respectively. In ruling, the
judge stated, in part:
I do find that the rule has been
violated,
that there has been an extraordinary lack of
candor by [Respondent] to this court,
bordering on fraud, I believe…He is licensed
with the privilege of representing clients
in this state. I do specifically find that
he was exercising his right to serve as an
attorney in this state, as a legal advisor
to [LLC] which he repeatedly stated was his
position both in affidavit and in pleadings,
which were submitted on his behalf.
His protestations to the contrary are
incredible. His protestations that he lacks
substantial and not isolated connections
with this state are incredible…
But my secondary holding is that even if
we
set that aside or if we add to that the fact
that this man owns a house in this state, he
is subject to a loan and a concomitant
mortgage related to that property, and that
he has loaned money to or on behalf of this
corporation upon which he is insisting on
repayment pursuant to a note, all of which I
find to be undisputed, or if disputed,
undisputed by credible evidence in this
record to be the facts on this case. And
that’s why I find [Respondent’s] testimony
here, his representations here, his position
in this case to be breathtaking in their
lack of candor to this court.
The judge supplemented his oral decision and
order regarding sanctions with a written
decision explaining why he ordered that the
adverse party be fully compensated for
having to defend against Respondent’s motion
to dismiss. In the written decision, the
judge stated:
Because the nature of the frivolous
conduct
by third-party defendant [Respondent]
involved multiple false statements in an
apparent attempt to mislead the court
affirmatively and by omission, his conduct
is about as egregious as can be found in a
court of law. It goes beyond simply
advancing arguments with no factual or legal
support, or good faith argument for
extension of the law. The lack of candor
bordering on fraud here poisons the search
for the truth, and makes a mockery of the
justice system. Such extreme conduct
requires the most extreme sanction.
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