Ching v. State Bar of Nevada, 25557
| Decision Date | 25 May 1995 |
| Docket Number | No. 25557,25557 |
| Citation | 111 Nev. 779,895 P.2d 646 |
| Parties | Keith S.K. CHING, Petitioner, v. The STATE BAR OF NEVADA and Northern Nevada Disciplinary Board, Respondents. |
| Court | Nevada Supreme Court |
Petitioner Keith Ching is an attorney licensed to practice law in the State of Nevada. In February 1990, the California Board of Equalization reported Ching to the State Bar of California by filing a grievance. The grievance was based upon a series of transactions involving a corporation which Ching had fraudulently created to assist his clients in avoiding taxes which were due to the State of California. On August 8, 1991, Ching submitted to the California Bar a petition of resignation with charges pending. 1 On February 14, 1992, the California Supreme Court accepted Ching's resignation from practice with charges pending. In May 1992, Ching's resignation was reported in a California State Bar Report. According to the State Bar of Nevada (Nevada Bar), this was the first time it heard of the disciplinary proceedings against Ching in California.
On June 16, 1992, the Nevada Bar filed a request with the Nevada Supreme Court for reciprocal discipline pursuant to SCR 114. Concluding that "no disciplinary sanction predicated upon a finding of misconduct has been imposed in California against attorney Ching ... which can be reciprocally imposed in Nevada under SCR 114," this court dismissed the Nevada Bar's request without prejudice to bar counsel's right to investigate the underlying facts.
On December 2, 1993, the Nevada Bar filed a complaint against Ching for his fraudulent actions in California. The complaint charged Ching with three counts of misconduct: (1) violation of SCR 203(3) () and SCR 203(4) (); (2) violation of SCR 172(1) (); and (3) violation of SCR 114(1) ().
Ching filed a motion to dismiss, arguing that the complaint was barred by the applicable statute of limitation. The Northern Nevada Disciplinary Board subsequently denied Ching's motion. Ching then filed the instant petition for a writ of prohibition directing the Nevada Bar and the Northern Nevada Disciplinary Board to refrain from any further proceedings against Ching. Ching argues that any proceedings are barred by the statute of limitation, and that the charge of violation of SCR 114(1) is precluded by res judicata, inasmuch as this court previously dismissed charges under that rule. We hold that Ching's arguments are without merit and deny his petition.
SCR 106 provides, in pertinent part:
Formal disciplinary proceedings shall not be commenced against an attorney for alleged misconduct occurring more than 4 years prior to the filing of the complaint by bar counsel. In the event of fraud or concealment, the 4-year period begins on the date the fraud or concealment was discovered by the complainant, or on the date facts were known to him which should have lead him to discover the alleged misconduct.
(Emphasis added).
Ching argues that the Nevada Bar cannot be the complainant under SCR 106. According to Ching, the complainant is the person or entity actually harmed by an attorney's misconduct. Ching argues that in the instant case, the complainant is the California Board of Equalization and that the Board learned of his misconduct as early as August 8, 1985, when it began investigating the fraudulent transactions. Ching therefore concludes that any disciplinary action against him in Nevada was barred by SCR 106 after August 8, 1989.
Although Ching acknowledges that SCR 104 allows the Nevada Bar to file complaints sua sponte when it learns of attorney misconduct on its own, 2 he argues that this does not make the Nevada Bar a "complainant" under SCR 106. According to Ching, if the Nevada Bar were a complainant under SCR 106, the limitation period's commencement would turn on whether the defrauded entity complained to the Nevada Bar directly or whether the Nevada Bar learned of the fraud indirectly. Ching points out that if this reasoning is adopted, the Nevada Bar could learn of attorney misconduct 100 years after the fact and disciplinary proceedings would not be time-barred.
Although Ching's argument is legally sound, policy considerations dictate that his argument must fail. The Nevada Bar must be allowed to pursue fraudulent misconduct when it learns of the wrongdoing, since fraud, by definition, is concealed. 3 Otherwise, attorneys could escape disciplinary proceedings whenever the Nevada Bar is not timely informed of the fraudulent misconduct. As to Ching's concerns about the passage of 100 years before the commencement of disciplinary proceedings, if sufficient time has elapsed, the equitable doctrine of laches might apply to preclude disciplinary proceedings.
Ching also argues that although the Supreme Court Rules do not define "complainant," the Nevada Bar and the complainant must be separate entities. Ching relies on SCR 103(10) and SCR 105(2). SCR 103(10) provided that "a meeting may take place between the complainant, the attorney and three disciplinary board members to resolve the matter informally." 4 (Emphasis added). SCR 105(2) provides that "formal disciplinary proceedings are commenced by bar counsel filing a written complaint in the name of the state bar with the appropriate disciplinary board." According to Ching, under SCR 105(2), the Nevada Bar may only become a complainant after it files a formal written complaint against an attorney. Thus, Ching argues that since the SCR 103 meeting takes place before the Nevada Bar has filed a complaint against the attorney, the Nevada Bar cannot be the complainant referred to in SCR 103. However, we hold that SCR 103 applies when some entity other than the Nevada Bar is the complainant. Although SCR 103 envisions a complainant other than, or in addition to, the Nevada Bar, it does not preclude the Nevada Bar from being the complainant.
Ching further argues that SCR 107 and the comments to SCR 106 illustrate that the complainant is the individual or entity harmed by the attorney's alleged misconduct. In support of this argument, Ching points to SCR 107...
To continue reading
Request your trial
-
In re Discipline of Hall, No. 40728 (NV 7/15/2004)
...limitations period began when Hall's conduct was discovered by bar counsel, who could pursue a complaint. We specifically noted in Ching v. State Bar of Nevada5 that the Nevada Bar was a proper complainant because it is harmed whenever a Nevada lawyer violates the rules of professional cond......
-
In re Mccarty
...re Johnson, 2004 MT 6, ¶¶ 20–21, 319 Mont. 188, 84 P.3d 637;In re Siegel, 708 N.E.2d 869, 871–72 (Ind.1999); Ching v. State Bar of Nevada, 111 Nev. 779, 895 P.2d 646, 648–49 (1995); In re Wade, 168 Ariz. 412, 814 P.2d 753, 764 (1991); Harris v. State Bar of Cal., 51 Cal.3d 1082, 275 Cal.Rpt......
-
In re Discipline of Pallares, No. 42535 (NV 3/25/2005)
...187 (nonlawyer assistants) and 189 (unauthorized practice of law), but these charges were dropped before the formal hearing. 5. 111 Nev. 779, 895 P.2d 646 (1995) (holding that the state bar had standing as a "complainant" to file a bar complaint against an attorney). 6. ABA Compendium of Pr......
-
State v. Jones
...895 P.2d 643 ... 111 Nev. 774 ... The STATE of Nevada, Appellant, ... Roosevelt JONES, Jr., Respondent ... The STATE of Nevada, Appellant, ... Ricky H ... ...