Office of Disciplinary Counsel v. Ng

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
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