Office of Disciplinary Counsel v. Ng ( 2013 )


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  •                                                      Electronically Filed
    Supreme Court
    SCAD-12-0000414
    01-MAR-2013
    02:26 PM
    SCAD-12-0000414
    IN THE SUPREME COURT OF THE STATE OF HAWAI#I
    OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
    vs.
    WING C. NG, Respondent.
    ORIGINAL PROCEEDING
    (ODC 09-002-8725)
    ORDER OF SUSPENSION
    (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ.
    and Intermediate Court of Appeals Associate Judge Ginoza,
    assigned by reason of vacancy)
    Upon consideration of the Report and Recommendation of
    the Disciplinary Board of the Supreme Court of the State of
    Hawai#i, the briefs submitted by Respondent Wing C. Ng and the
    Office of Disciplinary Counsel, and the record, this court finds
    by clear and convincing evidence, after de novo review of the
    entire record, see Office of Disciplinary Counsel v. Breiner, 89
    Hawai#i 167, 171, 
    969 P.2d 1285
    , 1289 (1999), Respondent Ng filed
    the Chapter 11 bankruptcy proceeding and the adversarial
    proceeding in United States Bankruptcy Court for the District of
    Hawai#i for the improper purpose of delaying ongoing litigation
    in federal court in California, in light of the timing, effect,
    and underlying details of the petition. See In re Silberkraus,
    
    336 F.3d 864
    , 868 (9th Cir. 2003) (“‘[C]ourts may infer the
    purpose of a filing from the consequences of a pleading or
    motion’”) (quoting In re Start the Engines, Inc. 
    219 B.R. 264
    ,
    270 (Bankr.C.D. Cal. 1998)).   The court further finds Respondent
    Ng was inexperienced in bankruptcy law at the time of the filing.
    The court further finds, however, that, upon the dismissal of the
    Chapter 11 petition and the related adversarial proceedings,
    Respondent Ng was on notice of Judge Faris’s rulings that (1) the
    dispute underlying the alleged tax liabilities and ownership of
    the implicated assets was between two parties, (2) while the
    bankruptcy court has, by statute, authority to address tax
    liabilities, it was not the appropriate venue to address either
    the question of tax liabilities or ownership of the underlying
    assets, particularly as those issues were being capably addressed
    by the federal litigation in California, and (3) consequently
    Judge Faris viewed the filing of bankruptcy petitions in his
    court, having as their nexus the two parties, the underlying
    assets, and the ownership of those assets, as bad faith attempts
    to further delay the California litigation.   This court finds,
    therefore, Ng’s filing of the Chapter 7 petition as (1) a bad
    faith attempt to further delay the California litigation, (2) in
    light of the bankruptcy court’s previous rulings, as a failure by
    Respondent Ng to comprehend the functioning of the judicial
    process and a failure to competently represent his client, and
    (3) brought with the intent to unduly burden and harass the
    opposing party in the California litigation by frivolously
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    increasing the cost and difficulty of litigation, in violation of
    Rules 1.1, 3.1, and 4.4 of the Hawai#i Rules of Professional
    Conduct (HRPC).    See Matter of Burns, 
    657 N.E.2d 738
    , 739
    (Indiana, 1995); In re Comfort, 
    159 P.3d 1011
    , 1020 (Kansas,
    2007); In re Disciplinary Action Against Plunkett, 
    432 N.W.2d 454
    , 455 (Minn. 1988); In re Snyder, 
    35 S.W.3d 380
    , 385 (Mo.
    2000).   This court further finds (1) the continued filing of
    documents by Respondent Ng in the appeal of the dismissal of the
    Chapter 7 petition after Respondent Ng unequivocally no longer
    represented the petitioner and, hence, lacked standing to file
    such documents, (2) his continued failure to understand the
    implications of his conduct, and (3) his appeal to the United
    States Court of Appeals for the Ninth Circuit of the finding by
    the United States District Court for the District of Hawai#i that
    his appeal of the Chapter 7 petition’s dismissal was frivolous
    and lacked merit, violated HRPC Rules 1.1 and 3.1.    We further
    find Respondent Ng’s failure to understand, in the instant
    disciplinary proceedings, despite being so informed in writing by
    the Disciplinary Board, that he had the right to call expert
    witnesses to testify in his defense and, instead, his continued
    insistence that the absence of tax or other financial experts at
    the disciplinary hearing was not of his own making but the fault
    of the Board, is the incompetent practice of law, in violation of
    HRPC Rule 1.1.    See In re W.D.P., 104 Hawai#i 435, 438, 
    91 P.3d 1078
    , 1081 (2004).
    In aggravation, this court finds Respondent Ng has
    committed multiple ethical violations and refuses to acknowledge
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    the wrongful nature of his conduct.    In mitigation, we note the
    absence in the record of any prior discipline against Ng.
    Therefore, it appearing that suspension is appropriate,
    IT IS HEREBY ORDERED that Respondent Ng is suspended
    from the practice of law in this jurisdiction for a period of one
    year and one day, effective 30 days after the date of entry of
    this order, as provided by Rules 2.3(a)(2) and 2.16(c) of the
    Rules of the Supreme Court of the State of Hawai#i (RSCH).
    IT IS FURTHER ORDERED that, in addition to any other
    requirements for reinstatement imposed by the Rules of the
    Supreme Court of the State of Hawai#i, Respondent Ng shall pay
    all costs of these proceedings as approved upon the timely
    submission of a bill of costs, as prescribed by RSCH Rule 2.3(c).
    IT IS FURTHER ORDERED that Respondent Ng shall, within
    ten days after the effective date of his suspension, file with
    this court an affidavit in full compliance with RSCH Rule
    2.16(d).
    DATED:   Honolulu, Hawai#i, March 1, 2013.
    /s/ Mark E. Recktenwald
    /s/ Paula A. Nakayama
    /s/ Simeon R. Acoba, Jr.
    /s/ Sabrina S. McKenna
    /s/ Lisa M. Ginoza
    4