Case Number(s): 05-O-01072; 05-O-02293; 05-O-03143; 06-O-10627
In the Matter of: Richter Wong Kong, Bar #, A Member of the State Bar of California, (Respondent)
Counsel For The State Bar: Manuel Jimenez, Bar # 218234
Counsel for Respondent: Vicki H. Young, Bar # 73261
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 16, 1980.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 12 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.
<<not>>checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
Attachment language begins here (if any):
I. Misconduct
Marlyn Toy Matter (05-0-01072)
On April 23, 1998, fourteen days before the statute of limitations would run out, complainant Marlyn Toy employed respondent to handle a personal injury matter. Subsequent to getting the file from her previous attorney, respondent failed to file a complaint before the statute of limitations. In and between April 1998 through March 2001, complainant wrote and telephoned respondent numerous times. Respondent failed to respond.
By recklessly failing to perform legal services with competence, respondent wilfully violated Rules of Professional Conduct, rule 3-110(A). By failing to keep his client reasonably informed of significant developments in a matter in which he had agreed to provide legal services, respondent wilfully violated Business and Professions Code section 6068(m).
Villa Randolph Matter (05-0-02293)
On May 27, 1996, complainant Villa Randolph hired respondent to represent her daughter, Maxine Preston, in a personal injury matter. Mr. Kong had successfully settled the claim of Mitchell Preston, who was also injured in the accident. In and between November 11, 1996 and September, 2000, representatives from the National American Insurance Companies of California ("NAICC") contacted respondent via phone and letter, offering to settle the matter for $15,000, which represented the policy limits of the policy of the insured. In response to the first offer to settle, respondent informed the representative of NAICC that he wanted to do a background check on the driver/insured to determine his assets. In August 1998, respondent called NAICC and asked if he would need to get a minor’s compromise to settle the case. Subsequently, respondent failed to respond to repeated requests to settle the case. Respondent failed to respond to numerous inquiries by the complainant. Respondent ceased working on the case after August 22, 1998, until the complainant contacted the State Bar of California.
By recklessly failing to perform legal services with competence, respondent violated Rules of Professional Conduct, rule 3-110(A). By fail.ing, upon termination of employment, to take reasonable steps to avoid foreseeable prejudice to his client, respondent wilfully violated Rules of Professional Conduct, rule 3-700(A)(2). By failing to respond promptly to reasonable status inquiries of a client, in a matter in which respondent agreed to provide legal services, respondent wilfully violated Business and Professions Code, section 6068(m).
Beth Hopwood Matter (05-0-03143)
Respondent represented Peno Nguyen in a personal injury matter. Peno Nguyen filed a worker’s compensation claim on his own behalf. In June 2001, respondent settled the personal injury matter for $5000. In July, 2001 respondent signed a lien with Ward North America ("Ward"), a worker’s compensation carrier, and agreed to set aside $1,380, pending conclusion of Nguyen’s worker’s compensation case. Ward reduced its lien to $1,000. In February 2003, the worker’s compensation matter concluded. On March 24, 2003, Beth Hopwood, counsel for Ward, sent respondent a copy of the Worker’s Compensation Appeals Board judge’s order, and requested payment of the lien. Respondent paid Nguyen $380.38, representing the difference between the amount respondent held and the compromised lien. On April 30, May 13, June 3 and October 1, 2003, Hopwood called respondent and left messages requesting return telephone calls. Respondent failed to respond. On February 10, July 2 and July 19, 2004, and March 17 and April 14, 2005, Hopwood sent letters to respondent requesting payment of the lien. Respondent did not respond, or pay the lien. On May 16, 2006, Hopwood filed a complaint with the State Bar. On July 14, 2006, respondent sent a check for $1,000 to Hopwood.
During the period in and between November 2004 and June 2005, respondent failed to transfer earned funds from the CTA, and issued checks drawn upon his CTA to pay personal expenses, and also made three cash withdrawals. By failing to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive, respondent wilfully violated Rules of Professional Conduct, rule 4-100(B)(4). By depositing or commingling funds belonging to respondent in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, respondent wilfully violated Rules of Professional Conduct, rule 4-100(A).
II. Pending Proceedings
The disclosure date referred to on page 1, paragraph A(7), is March 19, 2008. As of this date, there are no other pending proceedings.
III. Costs of Disciplinary Proceedings
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent (with this stipulation) that as of March 19, 2008, the estimated prosecution costs in this matter or approximately $5,511.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in a final cost assessment. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
IV. Financial Difficulties: Respondent has provided documentation that he suffered severe financial difficulties in the years 1997 and 1998, during the time that he committed misconduct in the Toy and Randolph matters.
V. Authorities in Support of Discipline
A. The Standards
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession, the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 2.2(b) provides that culpability of a member of the commingling of entrusted funds or property or the commission of another violation of 4-100, Rules of Professional Conduct, none of which offenses result in willful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Standard 2.4(b) provides, that culpability of a member of willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of willfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6 provides that culpability of a member of a violation of...[Business and Professions Code section 6068]...shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
B. Case Law
The Court should also look at case authority in determining the appropriate level of discipline to determine whether the discipline is consistent or disproportional to prior decisions on the same set of facts. Snyder v. State Bar (1990) 49 Cal.3d 1302.
In determining the appropriate level of discipline, the court should look to the Standards for Professional Misconduct. In In re Morse (1995) 11 Cal.4th 184, 206, the California Supreme Court stated;
"To determine the appropriate level of discipline ... we... must first look to the standards for guidance. ’These guidelines are not binding on us, but they promote the consistent and uniform application of disciplinary measures. Hence we have said that ’we will not reject a recommendation arising from application of the standards unless we have grave doubts as to the propriety of the recommended discipline.’"
Despite the need to examine cases on an individual basis, it is a goal of disciplinary proceedings that there be consistent recommendations as to discipline, a goal that has been largely achieved through the application of the Standards of Attorney Sanctions for Professional Misconduct. (In the Matter of Marsh (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 291 .)
The standards provide guidance and deserve "great weight." (In re Morse, supra, 11 Cal.4th at p. 205; In re Naney (1990) 51 Cal.3d 186, 190; Van Sloten v. State Bar (1989) 48 Cal.3d 921,933, fn. 5.) "[A]dherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct." (In re Naney, supra, 51 Cal.3d at p. 190; see also In re Brown (1995) 12 Cal.4th 205; 220.) The California Supreme Court accepts a disciplinary recommendation resulting from application of the standards unless it has "grave doubts" about the recommendation’s propriety. (In re Morse, supra, 11 Cal.4th at p. 206; In re Lamb (1989) 49 Cal.3d 239, 245.)
Matter of Sullivan (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 608. Respondent, with no prior disciplinary record, was suspended for one year, stayed, sixty days actual, and three years probation for failing to communicate with clients in two matters, and of recklessly or repeatedly failing to provide competent legal services in four matters.
Case Number(s): 05--0-01072;-05-0-02293; 05--0-03143; 06-0-10627
In the Matter of: Richter Kong Wong
checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.
<<not>> checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for days or months or years or, the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker
determines that there has been a substantial change in respondent’s condition,
respondent or Office of the Chief Trial Counsel may file a motion for
modification of this condition with the Hearing Department of the State Bar
Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The
motion must be supported by a written statement from the psychiatrist,
psychologist, or clinical social worker, by affidavit or under penalty of
perjury, in support of the proposed modification.
<<not>> checked. c. Upon the request of the Office of Probation, respondent must provide the Office of Probation with medical waivers and access to all of respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court, who are directly involved with maintaining, enforcing or adjudicating this condition.
Other:
SIGNATURE OF THE PARTIES
Case Number(s): 05--0-01072;-05-0-02293; 05--0-03143; 06-0-10627
In the Matter of: Richter Wong Kong
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Richter Kong Wong
Date: 3-21-08
Respondent’s Counsel: Vicki H. Young
Date: 3-21-08
Deputy Trial Counsel: Manuel Jimenez
Date: 3-21-08
Case Number(s): 05--0-01072;-05-0-02293; 05--0-03143; 06-0-10627
In the Matter of: Richter Kong Wong
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule135(b), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: George Scott
Date: 4-7-08
[Rule 62 (b), Rules Proc.; Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of San Francisco, on April 9, 2008, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at San Francisco, California, addressed as follows:
VICKI HUI-WEN YOUNG
240 STOCKTON ST #400
SAN FRANCISCO, CA 94108 - 5306
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MANUEL JIMENEZ, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on April 9, 2008.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court