Complaint of Chester Mack against Wife’s attorney at the Minnesota Office of Lawyers Professional Responsibility board
Complaint #1 Attorney Kang Ming tried to trick my server into not serving the Answer to her divorce petition.
Attorney Su-Mei Kang Ming served me with a divorce petition on March 8, 2011 while I was temporarily living apart from my wife, Rose Fen Mack. The petition stated: “You are hereby summoned and required to serve upon petitioner’s attorneys an answer to the petition that is served upon you together with this summons within thirty (30) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in this petition.”
I prepared an Answer and, on March 25, 2011, had a friend, Alan J. Nelson, deliver its document to the law office of attorney Kang Ming at 8xxx Wayzata Boulevard, suite 320, Golden Valley, MN 55426. I sat in a car in the parking lot of the attorney’s office building as my friend brought the papers inside. In five to ten minutes, Mr. Nelson returned to the car with the papers unserved. Ms. Kang Ming had left the office. However, she had told Mr. Nelson on the telephone that it was not necessary to serve the Answer since the case had advanced beyond that point. A settlement conference was already scheduled. My server, Joe Nelson, therefore, returned to the car.
I knew that my wife and I had not yet agreed to settle. I asked Mr. Nelson to go back to the attorney’s office and make sure that the Answer was delivered. It was left with a person in the office named Judy Laise. I realized that the consequence of not serving the Answer within thirty days was that the court might grant the petition by default. Attorney Kang Ming seemed to be employing trickery with respect to a man untrained in the law to attempt to achieve that result.
Applicable rule 4.1 “TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law.” Comment: The false statement of fact was to tell the server that the case was close to settlement when it was not. Ms. Kang Ming had already rejected my settlement proposal. See also rule 8.4 regarding dishonesty and misrepresentation.
Complaint #2 Attorney Kang Ming repeatedly sought to meet with me privately to negotiate a settlement knowing that I was in the process of hiring an attorney to represent me in the divorce.
Nevertheless, Ms. Kang Ming repeatedly attempted to get me to meet with her privately in her office to negotiate a settlement without the advice of an attorney. From her email on March 28th at 10:14 a.m.: “When would you like to come into my office?” I respond at 10:29 a.m. on March 28th: “I think a visit would have to come after I meet with Mr. Smith on Wednesday morning.”
Nevertheless, Ms. Kang Ming wrote in an email at 10:57 a.m. on March 28th: “If you wanted to come in before or after meeting your potential attorney, then this is fine. Please schedule a time with me so I can book the conference room. We are both in agreement to move quickly so everyone can move on with their lives, and hopefully be friends again ... thus a conference would be good.” At 2:28 p.m., on March 28th, I wrote: “Please let me confer with the attorney first. Thanks.”
Nevertheless, Ms. Kang Ming was still asking me to set up a meeting. She wrote on March 29th at 1:35 p.m. “Do you wish to discuss with your potential attorney prior to setting a time to meet with me? Or would you rather set a time to meet with me now, but at a date some time after meeting the attorney?” I told her at 3:09 p.m. that day that I would be meeting with my attorney on the following morning, March 30th. Ms. Kang Ming’s message sent on the morning of March 30th was to suggest that I might meet with her that morning; otherwise, on Thursday at 10:00 a.m.
The point is that attorney Kang Ming would not wait until I had had a chance to ask my prospective attorney what to do. She wanted to rush a meeting with me privately. Technically, I had not yet hired Mr. Smith, but I had clearly indicated that I wished to defer discussion of the divorce until I had an opportunity to talk with him. I believe that such maneuverings by an attorney to speak directly with a client who had engaged an attorney’s services or seriously contemplated such might be a violation of professional ethics.
RULE 4.2: “COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” Comment: Technically, I was not then represented but Ms. Kang Ming knew of my intention to hire Frederick Smith and my desire to defer negotiations until I was represented.
Complaint #3 Instead of doing proper discovery, Attorney Kang Ming has encouraged her client to take personal financial documents, computer records, and other items from me without my knowledge or permission and she refuses to give an accounting of what has been taken.
My wife had me arrested on trumped-up charges of domestic assault on February 18, 2011; and, on March 8, 2011, she filed for divorce. The resulting no-contact order banned me from my home. My wife said that her attorney, upon considering whether to take the case, had asked for evidence to support certain allegations that she had made in seeking the attorney’s services. While I was living in another house, tenants in my vacated home said they heard people walking about in my office. It turned out that, while I was gone, my wife removed my present and past check registers (pertaining to an account which I alone used for personal and business purposes) and perhaps other documents such as computer files, real-estate deeds, stock and certificates, and took them to attorney Kang Ming’s office for photocopying. Several other items such as my digital camera, my passport, and a recording device later came up missing. Attorney Kang Ming produced a stack of photocopied pages from my check registers as evidence both at the Mediation session on October 17, 2011, and subsequently as exhibits to her motion for temporary relief presented on January 5, 2012. My requests for an accounting of what was taken (and, hopefully, return of the documents themselves) have been rebuffed.
On November 16, 2011, I wrote in an email to attorney Kang Ming: “You are using information stolen from me and I am quite unhappy about that. At the pre-trial hearing, you displayed a stack of documents which I understood to be photocopies of my check register. Your husband, who I have learned is an accountant, also implied at this hearing that I had cheated on my income-tax return.” She replied: “This information is not stolen, again these accusations are unnecessary. Please stop giving Ms. Johnson money and then keeping good records of doing so. I can see that all you will do is sling speculation and conjecture at me, thus I will stop reading here. “
Again, on November 30, 2011, I wrote in an email to Ms. Kang Ming: “Much of the information which you have used in your draft is presumably based on documents taken from me without my knowledge and consent. I do not know which documents were taken. I do not know if you retain the originals of documents which I might need. It will be difficult for me to evaluate this information unless I know its source. For one thing, I need to know if the information came from me. Please give me a list of all the documents belonging to me which you received outside the normal scope of discovery.”
Ms. Kang Ming refused my request, saying: “Everything Rose gave to me was left in plain view at your home. She owns that place with you equally. Nothing is outside what I would normally request in informal or formal discovery. Are you getting someone to tell you that it is? I'd like his or her name because this person does not know what they are talking about. A wife can bring me financial documents from her home, especially one who requires an interpreter and doesn't know what she's grabbing. If you want to do discovery, we most certainly can, but it will be mutual requests. I have been sitting here knowing you have been dishonest with me for a while. Please stop these games and let's get you and Rose divorced. I do have to say you keep nice records.”
RULE 4.4: “RESPECT FOR RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Comment: At the time that some of these documents were taken, I was a third party, being not yet a party to any divorce proceedings.
Complaint #4 Attorney Kang Ming has relentlessly made an issue of my “marital misconduct” as a basis for settling the divorce instead of focusing upon a just and equitable division of marital assets and liabilities. She often uses inflammatory language and misrepresents the situation.
While my wife was in China for three or four months in early 2011, she received treatment in a Beijing hospital to remove a cancerous tumor in her lower intestine. At some point during this period, my former wife, Joyce Johnson, visited my home and we had sexual relations. Ms. Johnson later said that she had become pregnant from that incident.
Having a child of my own had been a life-long dream. Wishing to prevent an abortion and protect the prospective mother’s health, I gave Ms. Johnson money for various purposes during the pregnancy. When a landlord evicted her, I allowed Ms. Johnson, then pregnant, to occupy first an efficiency apartment in my building at 1708 Glenwood Avenue in Minneapolis and then a three-bedroom apartment at 1702 Glenwood Avenue in Minneapolis, below where I lived. Ms. Johnson agreed to carry the pregnancy to term even if I would not divorce my wife and marry her. However, the fetus died and was removed from her body in early December 2011. When my wife returned to the United States in January, 2012, I told her about the pregnancy. She became enraged and later filed for divorce.
There are legitimate reasons for my wife to have become upset about this situation; however, Ms. Kang Ming has elevated and repeated them excessively. Minnesota is a no-fault divorce state. Since there were no children in this marriage, the division of marital assets and liabilities ought to be the center of divorce discussions. Ms. Kang Ming has made sure that it is not. She has repeatedly referred to Ms. Johnson as my “mistress” or “paramour” suggesting incorrectly that we had a frequent, ongoing sexual relationship. I can only recall that it happened only once.
Knowing that “the judge is a recovering cancer patient” (11/30/11 email), Ms. Kang Ming has stressed the conjunction of the sexual encounter and my wife’s cancer treatment. She has repeatedly suggested that the encounter took place while my wife was receiving treatment in the hospital - maybe I was even conscious of my wife’s hospitalization while having sex! - when, in fact, it could have happened weeks outside the period of her hospital stay. My wife and I had not slept in the same bed for months before she left for China so I was probably overly eager when the opportunity presented itself. This visit to China for several months was only one of several extended stays she has had in China for medical, touring, and other reasons during our marriage.
I have no doubt that the purpose of emphasizing marital misconduct is to derail discussion of property settlements and run up the attorney’s Chesterings. My wife has become persuaded that the court would ultimately make me pay a large share of her Chester. In a sarcastically romantic flourish, Ms. Kang Ming lists as Exhibit 8 in her 2012 motion for temporary relief: “2010 Chester Mack ’s Checkbook Ledger (hearts indicate Joyce Johnson)”. While I did lend Ms. Johnson money during the last two years, the loans were often for the purpose of asset preservation. She had a plausible plan to repay the money.
The arguments about marital misconduct and emotionally loaded language related to this have continued throughout the divorce proceedings. On April 19, 2011, my attorney, Frederick Smith, wrote Ms. Kang Ming after she had twice referred to Joyce Johnson as my mistress: “I would appreciate it very much if you would refrain from referring to Chester's ex-wife as his mistriss (sic). It serves no useful purpose in this case.” Yet, on April 21, she wrote Smith: “I believe your client has not been given the bad news, legally, of what happens when there's a mistress in the picture.” On June 22, she wrote: “there is a clear history of Chester giving money to his mistress and her family.”
In my wife’s prehearing statement issued October 10, 2011, attorney Kang Ming even inserted this extraneous passage into Section 5, under Real Estate assets, referring to the first floor apartment in the parties’ house: “4 bedroom + 1 bath = potential rental income is $1100 monthly. Ms. Johnson who is Mr. Mack ’s ex-wife (no spousal maintenance or equitable division of marital assets in their Decree) became Mr. Mack ’s paramour during Ms. Rose Mack ’s cancer treatments in 2010, Ms. Johnson has been staying in this residence at no cost and Mr. Mack has written extensive amounts of money to her and the 7-8 children Ms. Johnson has that are not biologically related to Mr. Mack .” She made sure that the judge was aware of the situation at all times.
I was led to believe that the Mediation session ordered for October 17, 2011, would be a serious discussion between the parties to try to reach a settlement. Instead, my wife and her attorney, aided by three interpreters, turned the occasion into a circus whose main act was to explore how much money I had given my ex-wife as a result of our “affair”. Ms. Kang Ming brought out her stack of pilfered documents and began her one-sided presentation. My attorney, Frederick Smith, and I tried to steer the discussion back to finances and a potential settlement. When we demanded that they make an offer, it was grossly disadvantageous to me. (Under court order, I am not at liberty to disclose the exact amount of this “confidential settlement offer”, but, rest assured, it was not a serious offer.) Not long afterwards, I realized that I could no longer afford to engage the services of my attorney and he withdrew from the case. Otherwise, the unproductive conversation about mistresses and misconduct might have continued for months.
Comment: No specific rule violation but, in emphasizing marital misconduct, Ms. Kang Ming violated the spirit of “no fault” divorce law which focuses upon an equitable property settlement.
Complaint #5 Attorney Kang Ming spent weeks negotiating arrangements for a Financial Early Neutral Evaluation (FENE) and then killed this procedure, falsely claiming that I opposed it.
The first effort to settle the divorce involved finding a neutral evaluator to investigate my wife’s and my financial situations and make a recommendation for a fair settlement. As early as April 6, 2011, attorney Kang Ming emailed her recommendation from the FENE list. On April 25, 2011, she agreed with the selection of Andrea Niemi as the evaluator. But then, after discussing this and other subjects for months, Ms. Kang Ming suddenly wrote in a letter to Smith on Jun 29, 2011: “My client has made it clear she does not want anyone to call the FENE evaluator until July 5th, 2011. It appears that Chester does not want to participate in the process.” This was totally untrue. I did fervently want the FENE because it would put the spotlight of the divorce proceedings upon our respective finances, where it properly belonged, and de-emphasize the marital misconduct.
An angry exchange of emails then took place between the two attorneys. On July 15, 2011, Ms. Kang Ming wrote: “Let’s discuss how to proceed with the dismissal of the FENE. My client does not want to participate and she told me your client does not either . . . actually . . . I have an e-mail from your client that states this.” Mr. Smith replied: “My client wants to have the FENE. It is Court-ordered and the parties cannot simply agree to do otherwise.”
On July 16, 2011, Ms. Kang Ming wrote: “Are you sure? Chester told Rose that you were not listening to him and running up his attorney’s Chester. He did not like that you charged so much, etc. Also, Rose is out of country. I believe that when both parties want the FENE dismissed, stipulate to it, especially when they intend to settle anyway, as clearly shown here, it can be by the court.” Mr. Smith replied: “Yes, I am sure. You are out of line to suggest that I am pushing for the FENE just to increase my billable hours. Making ridiculous settlement proposals and questioning my professional integrity gets us nowhere. Your client needs a good dose of reality that an FENE may provide.”
Several days later, on July 18, 2011, referee Susan Raleigh in a telephone conference with the two attorneys agreed that the FENE would not be ordered. I regarded this as a disaster. We had spent three months trying to make arrangements which suddenly disappeared. Of course, I wanted the FENE. Ms. Kang Ming did not have any emails from me to the contrary. Neither had I complained to my wife Rose that attorney Smith was not listening to me and his hourly rate was too high. These were pure lies. Yet, attorney Kang Ming was allowed to get away with them.
RULE 8.4: “MISCONDUCT It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Comment: There was deception in spending weeks negotiating the FENE and then at the last minute killing it. There was dishonesty in saying that I opposed the FENE when I did not.
Complaint #6 Attorney Kang Ming has repeatedly included erroneous statements of fact in her emails and filings and has refused to correct some even after the errors were pointed out to her several times.
When I responded in an email on November 26, 2011, that the figure was a loss (of $1,116 per month actually) rather than gain, Ms. Kang Ming replied: “The $1,400.00 is not a mistake. According to the report that your realtor prepared when you were to sell the 1708 Glenwood property a few years ago, you claimed his property generated income of $9,183.77 for 2008. I believe this report to be accurate as you would have no incentive to falsify information to your realtor. The $1,400.00 from your properties is a conservative estimate of the income your properties generate.”
The “realtor” whom she cites was Philip A. Reesnes of Michel Commercial as revealed in Exhibit 5 of the attorney’s filing for temporary relief on January 4, 2012. This man had come to me offering to sell the apartment building at 1708 Glenwood Avenue after estimating its sales price; I did not engage this man’s services. His numbers were not mine. Yes, our federal income-tax return for 2008 shows that the apartment at 1708 Glenwood Avenue earned a profit of $9,183.77 that year. However, there were three other properties on that tax return and they all had losses. Our tax return for 2008 showed an annual profit of $433.65 for the four properties together in the rental-property business. By 2010, this had become a $13,397 loss. Ms. Kang Ming, whose husband is an accountant, insisted on looking at only the nine-unit apartment building and claiming it was representative of the entire business.
Despite my best effort to set the record straight, Ms, Kang Ming has continued to claim that I have positive income from the rental properties. My wife’s affidavit signed January 4, 2012, stated: “Income: Chester receives at least approximately $40,000, net annually ... (including) 4. $24,000 from the rental properties.” Our 2010 federal tax return shows an adjusted gross income of $28,889 (including a one-time insurance settlement of
$14,000) but Ms. Kang Ming insinuates that the tax return signed by her client and me is incorrect.
The latest such claim comes in Revised Appendix A to Affidavit of Rose McGuaghey (sic) in support of Petitioner’s Motion Response 2, dated January 28, 2012. This highly flawed schedule, adapted from our 2010 tax return, claimed that the total expenses for the rental properties were only $47,826 against revenues of $85,929. The affidavit states: “I have seen Chester’s utility biis and I believe they are exaggerated on the tax returns (which she signed), because his tenants pay for just about everything, but maybe some gas, electric, water/sewer/garbage. Also, a lot of our tenants are Section 8 tenants who have utility vouchers.” I have two Section 8 tenants, out of thirteen total tenants. I pay all the water & sewer & garbage bills and the gas for all but one tenant.
Another error, which makes strategic good sense from Ms. Kang Ming’s point of view, was the claim in a settlement offer dated November 28, 2011, that “petitioner” (her client) has contributed $8,000 worth of labor into this property (their home at 1702 Glenwood Avenue) which has increased the rental value and resale of the residence.” And again, with respect to the nine-unit apartment building: “petitioner” (her client) has contributed labor to upkeep the property worth $15,000 which has improved the rental value of the property.”
Joe Nelson, who handles maintenance for my properties, submitted an affidavit on January 24, 2012 stating: “ As maintenance manager for Mr. Mack ’s properties, I can testify that, from my own observations over many years, his wife did not do any significant work in the buildings. I only saw her once in the apartment building at 1708 Glenwood Avenue and that was recently ... I do not believe that Rose Mackhas ever set foot in the two rented units of the four-plex at 1702 Glenwood Avenue.” Since I purchased both properties before the marriage, the obvious purpose of these erroneous statements was to establish what Ms. Kang Ming calls a “marital component” to the two properties.
There are many other errors in the documents which Ms. Kang Ming has submitted. Among them, one finds these statements in Rose Mack ’s affidavit signed on January 4, 2012:
“I worked at Target for a few years, but I stopped working because I hurt my leg (at work). I wanted to get medical care here, but Chester did not want to pay for it, therefore, I went back to China and received medical care for my injury and had to quit my job.” Rose was covered by Workers Compensation through Target which did pay her medical bills related to the work-related injury. She went to China for other reasons.
Also, Ms. Kang Ming’s filings disclose that her client owns a condominium apartment in Beijing worth $220,000. They have consistently failed to mention that she also owns, or has a controlling financial interest in, another smaller apartment in Beijing.
RULE 4.1: “TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law.” RULE 8.4: “ MISCONDUCT It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Complaint #7 Attorney Kang Ming often uses insulting, abusive, or threatening language or unfounded harsh accusations in her emails to me. One would have to examine the entire exchange of emails between Ms. Kang Ming and me to judge the tone of our communications. Some examples:
From her email of November 30, 2011: “Are you asking me to lie to the court? ... I am an officer of the court. I will not conceal facts. The judge is a recovering cancer patient, might I add ... Perhaps there is a misunderstanding of what facts mean. It is not a way to conceal things that have happened in your life from the court.”
From her email of December 5, 2011: “You have confessed to me, without any attorney/client privilege that Ms. Johnson stole from you, hence she also stole from Ms. Mack... if you are covering this theft up then it is a criminal matter that you are also guilty of.”
From her email of December 16, 2011: I was not looking at anything or responding to anything you wrote on December 9's e-mail because you told me you had counsel. (I had said I would have an attorney review any proposed settlement agreement before it was submitted to the judge.) Based off of this first statement in this e-mail, I believe you are being rather contentious and I am declining to read the rest of this e-mail as well ... I have no personal interest in your divorce and your behaviorisms.”
From her email of December 16, 2011: “When a group of people sit down, who have no formal legal training, then ask the attorney to sign off on it, it will almost always have changes. Again, I feel you are purposefully wasting time ... Have you discussed the reason behind your rather bizarre payment schedule with my client? .. Do you have a genuine intention of paying when the divorce is finalized?” The final payment was to have been by personal check.
From her email of January 2, 2012: “I want to assist my client to settle her case, however, I do not appreciate being lied to ... Please stop playing games with me Mr. Mack. . . speculation, innuendo, and conjecture will not help this case.”
From her email of January 2, 2012: Mr. Mack , Everything is denied and this type of behavior increases the costs of my client's attorneys fees - unnecessarily. Please stop. You are wasting time ... I can substantiate my facts with documentation. I don't need to write a lengthy e-mail full of false accusations as you did.”
From her email of January 2, 2012: “Are you fishing for answers? Look it up.”
These excerpts alone will not prove an inappropriate tone of discussion but it would waste too much time here to provide context. Were, for instance, my emails to her equally insulting? If anyone wants to see the entire email correspondence, I have saved everything.
No specific rules violation except, possibly, RULE 8.4: “MISCONDUCT It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice.”
Complaint #8 Attorney Kang Ming has relentlessly opposed a settlement between me and my wife and even sabotaged agreements already reached.
When Frederick Smith became my lawyer, he tried to negotiate with Su-Mei Kang Ming. All she wanted to do was make comparisons with how much money I had given my “mistress”. On April 14, 2011, Smith wrote me: “Trying to work out a settlement at this point is getting to be a ridiculous waste of time and money. She is, in effect, asking you to negotiate against yourself. “ Five days later, we received the formal response: “Fred, Thank you for proposing a settlement offer. My client will decline, as it offers her basically nothing for the ten years that they have been married, keep in mind, Chester has rental income.”
My wife was then in China but we often spoke with each other on the telephone. On May 2, 2011, I wrote Smith that Rose wanted to “end World War III”, come back to America, and reach an amicable divorce settlement. Rose and I soon had agreed to a concrete settlement plan and I sold some of my premarital stock to meet the terms of the agreement. However, there was a small sticking point which prevented us from signing at that point. Nevertheless, attorney Smith communicated my offer to Kang Ming on June 14, 2011. We waited for a response. The response came in the form of a counter-offer made on July 14, 2011, which substantially increased the money I would have to pay and also added certain other, quite unreasonable terms. I promptly rejected this and withdrew my own offer.
Behind the scenes, based on discussions I had with my wife, it appeared that attorney Kang Ming had become the main obstacle to settlement. I wrote my own attorney on June 6, 2011: “My wife says that she will accept the language I proposed. Her attorney is against this settlement.” Rose said that her attorney urged her to hold out for more - possibly she could acquire some of my premarital property such as the apartment building. I regarded such moves as an attempt to increase billable hours of attorney time. There may also have been the appeal, from one woman to another, of protecting a vulnerable Chinese woman from the evil intrigues of an American man.
After July, not much happened other than to prepare for the mediation session. The FENE had fallen through. I was expecting that the mediation would focus upon a financial settlement. However, Ms. Kang Ming, my wife, and her crew of interpreters (my wife speaks fairly good English) wanted mainly to discuss marital misconduct. We pressed them to make an offer. All I can say is that their offer, when it came, was grossly unfair to me. Worse yet, I had spent $2,000 in legal and other fees for this meeting. Mr. Smith and I parted ways. Thanks to the approach taken by the other attorney, we had made little or no progress toward a settlement since the case was filed in March.
After Frederick Smith withdrew from the case, I represented myself. A potential breakthrough came on or around October 31, 2011. As I was picking my wife up from a medical appointment, she begged me to settle. I offered the same settlement terms that I had initially proposed in March. My wife promptly accepted. Next day, she added another requirement. Nevertheless, I accepted these changes. I typed a list of ten points of agreement and then drafted a proposed agreement based upon them which we might present to the court. My wife wanted to show them first to her attorney. I agreed. Let Ms. Kang Ming review my document to make sure it was fair to Rose and was put in proper legal form.
During the next two months - November and December, 2011 - my wife’s attorney and I “negotiated” a settlement whose terms were agreed upon at the beginning. Ms. Kang Ming insisted upon adding new obligations for me. I went along with some, hoping to reach an agreement soon. Bowing to another demand, my “mistress”, the tenant downstairs, even agreed to live somewhere else for a time if that would aid the settlement process.
A pattern soon emerged during two months of negotiating the settlement draft: 1. Ms. Kang Ming would send me a proposed settlement agreement that was defective in several ways: (a) It did not reflect the terms of our agreement, (b) It included substantial misstatements of fact, and/or (c) It included extraneous language which I believed could cause serious problems for me. 2. I would reject the settlement proposal, stating my objections. 3. Ms. Kang Ming would then send me a new proposal. Sometimes this proposal would remove the offending passages or correct the erroneous facts; sometimes not. Invariably, however, new materials would be inserted into the text, raising new sets of problems. (I am not at liberty to go into details.) This went on and on during November and December, 2011. Five different proposals were reviewed. Finally, in an email dated January 3, 2012, I gave the other side an ultimatum: Either send me a clean document to sign by January 5th or I will withdraw my settlement offer.
The response came in the evening of January 4, 2012, when Ms. Kang Ming’s husband served me with a motion to pay my wife temporary relief. Settlement negotiations abruptly stopped. Now Ms. Kang Ming and I traded documents to be filed with the court. The month of January, 2012, was consumed with producing documents related to my wife’s request for temporary relief.
Referee Raleigh still hoped that the two sides could settle. I agreed to Ms. Kang Ming’s suggestion to come to her office to discuss a settlement face-to-face. We spent most of the time reviewing the statements of fact in one of her previous settlement drafts. A moment of truth came late in the session when attorney Kang Ming admitted that she was was not drafting a settlement agreement that represented the two parties’ wishes as I understood from my wife her role to be. Instead, she was continuing to represent her client aggressively as all good attorneys would do. If I wanted her to draft an honest document impartial to both parties, I would have to pay half of her fees.
Now it is the first week of February 2012, my wife and I have still made little progress toward settling the divorce. The first seven months, when I was represented by an attorney, succeeded only in depleting my assets and exhausting my credit. The next three have added new demands for temporary relief. Among those demands are that I pay $8,000 of my wife’s $9,000 new attorney bills related to the motion for temporary relief (because I am not an attorney and so may have wasted her time), and monthly spousal maintenance for my wife equal to my entire monthly income, plus my wife’s U.S. medical bills. Throughout this whole frustrating process, Ms. Kang Ming has prospered from a gusher of bills. I suspect that was the plan from the beginning.
RULE 1.2: “SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation ... A lawyer shall abide by a client’s decision whether to settle a matter.” Comment: My wife is afraid of her attorney who has convinced her that only she, being a lawyer, could convince a judge to sign the divorce decree.
Complaint #9 Attorney Kang Ming‘s profitable churning may be directly detrimental to her client’s health.
My wife, Rose, has had several operations in China related to breast cancer and intestinal cancer during the past several years. Once a heavy smoker, she may now have lung cancer. Rose sometimes says she will die soon. Although she will not give me the details of her medical condition, I am led to believe it is serious and real. Regardless of our divorce, I want her to be examined soon by doctors to see if her cancer has returned. A prompt examination could save her life.
In past years, Rose has received medical care in China because, having preexisting conditions, she does not have health insurance in the United States. Through my efforts, she was briefly enrolled in the Assured Access program, but this has lapsed. My assets and income disqualify her from enrolling in Medicaid. She has received medical care in China because she has some government assistance, the cost of care is significantly lower, the quality of care is not inferior to that in the United States, she has personal ties to some of the doctors, she has access to Chinese traditional medicine, and it is convenient for her to travel to and live in Beijing where she owns two apartments. Attorney Kang Ming has repeatedly claimed that Rose has gone to China for medical treatment because I am too cheap to buy her health insurance in the United States.
Rose has used her health costs as a weapon to have me settle the divorce on her terms. If I settled, she offered to continue to seek health care in China or cap my share of her medical expenses in the United States. The problem is that Rose has not allowed me to settle unless her attorney drafted the settlement agreement; and her attorney, Kang Ming, has refused to draft a reasonable agreement. In frustration, I have made repeated offers to give Rose $6,000 so she can go and receive immediate treatment in China before settling the divorce. Unfortunately, I am not in a financial position to offer to pay the tens or hundreds of thousands of dollars to receive equivalent treatment in the United States for an uninsured person. Rose has not taken me up on this offer.
As I realized that Ms. Kang Ming might only be pretending to draft a settlement. I framed the issue in these terms. Was it ethical for her to maximize her Chesterings when the resulting delay in settling the divorce could put her client’s life at risk?
My email to her on December 9, 2011, states: “Rose often predicts that her life may come to an end soon. She believes it is essential to settle the divorce soon so she can get medical treatment that may save her life. I strongly agree. Your paramount duty as an attorney is to respect the best interests of your client. Her interest at this point is to enjoy further life. You need to respect this need and stop quibbling over minor points. I have made every effort to propose how this case can be settled but you continue to throw up barriers. This is highly unprofessional. Consider this a warning that a quick and fair settlement is what your client needs and that to ignore this need for the sake of more income is a serious ethics violation.”
Ms. Kang Ming’s reaction to this warning was to write: “I read you have counsel. I can no longer speak to you.” (I had told Ms. Kang Ming that I had asked Frederick Smith to review any settlement agreement that we might reach through Ms. Kang Ming’s efforts before it was delivered to the judge. I did not say that I had rehired him.) Attorney Kang Ming pretends here that she cannot communicate directly with me - certainly not in regards to statements about Rose’s health with respect to her atttorney Chesterings.
I ended my email of December 16, 2011, to Ms. Kang Ming: “Again, I remind you that my wife believes it essential to get medical treatment soon. Your persistence in putting statements in the agreement which you know I will not accept is directly and substantially detrimental to my wife’s interests.” Her reaction was much the same as before: “Based off of this first statement in this e-mail, I believe you are being rather contentious and I am declining to read the rest of this e-mail as well.” I took this to mean that my ethical challenge was not something that she wanted to read. If she stopped her reading in the middle of the email, then she would not see the final sentence (quoted above) and would not have to respond to the issue about Rose’s health.
Therefore, attorney Kang Ming has continued on the same churning course as before. She continues to submit unsuitable documents posing as settlement agreements and charges her client accordingly. I continue to repeat my standing offer to pay Rose $6,000 so she can go immediately to China and have her health condition checked. Instead, Rose and her attorney have put additional financial pressure on me in arranging for Rose to seek medical treatment in the United States.
I repeated my offer to pay $6,000 in a telephone conference with referee Susan Raleigh and attorney Kang Ming that took place on January 18, 2012. Not long afterwards, on January 22, I received from Kang Ming this email: “You had offered in the telephone hearing $6,000.00 to my client to dismiss the motion hearing in its entirety? Is this correct?” Of course, it was not correct. I had offered $6,000 for my wife’s timely medical treatment, not to squash the hearing on temporary relief. This was yet another way to pretend that the issue of Ms. Kang Ming’s preference for legal fees to her client’s health did not exist. The unconscionable money chase continues.
RULE 1.3: “DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client.  ... A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client.” Comment: The client’s paramount interest lay in protecting her own health, not in pressing for every last dollar, especially if she might die soon. The attorney’s interest lay in maximizing legal fees.
Complaint #10 Attorney Kang Ming has tried to block my self-representation with respect to her motion for temporary relief by manipulating deadlines for service and perhaps even coaching her client to commit a crime.
The request was quite unnecessary. As my wife, Rose had free housing in our home at 1702 Glenwood Avenue. I paid most of the household expenses as well as those pertaining to the car. Additionally, she had use of a credit card whose Chester I paid - she spent nearly $800 in the month when the motion was filed - as well as her daughter’s credit card. I also regularly gave her cash. In other words, Rose was not strapped for funds. Her attorney’s motion was simply a harassment tactic.
The papers first were served by the attorney’s husband (an ineligible server) and then mailed so as to arrive on January 7, 2012 - 17 days before the scheduled hearing. They disclosed that I, as respondent, had only four days to file documents related to “new issues”. Meanwhile, whether or not by design, Rose began to spend large amounts of time at my computer so that I could not work on the case. She kept pestering me to respond instead to yet another flawed settlement offer made on January 4, 2012, when I should have been paying attention to the new motion. Not being an attorney, I might well have never realized the seriousness of the situation. Luckily I did, and I stayed up much of the night to draft my “new issues” answer while Rose was asleep and the computer was free.
In my inexperience and haste to compose the documents related to new issues, I had neglected to include a signature page. The self-help attorney at the Family Justice Center showed me how to put everything into proper form. I filed the “new issues” documents on January 12, 2012 - 12 days before the hearing - but I was assured that new issues motions filed 10 days before the hearing would meet the required deadline. The referee could decide of lack of a signature page - which was delivered on January 17, 2012 - would disqualify the submission. Attorney Kang Ming, of course, objected to the lack of timely service.
The hearing on her motion for temporary relief was scheduled for 3:00 p.m. on Tuesday, January 24, 2012. I was unable to represent myself then because I was then sitting in jail. On the preceding afternoon, Rose had accused me of striking her in the face. Despite having raised bail, the authorities arrested and detained me through the afternoon of June 24th.
Attorney Kang Ming denies having any part in this incident other than helping Rose find a translator. There is insufficient evidence in the police report to establish her role, if any, in this unfortunate set of events. The report says only that the arresting officer “was directed to the 4th precinct lobby regarding a domestic abuse victim ... Victim (Rose) also had an Asian female with her who stated she was her attorney ... Victim’s attorney called a language line that spoke mandarin Chinese.”
The police report also states: “While Rose was sifting through the papers in Chester’s room, Rose stated that Chester struck her in the face with a closed fist on her lips. I did not observe any welling, cuts, or redness on the face of Rose or on her lips. After Rose was struck she stated she left the house and came to the precinct. It should also be noted that Rose stated police were dispatched to this address during the day but it was not clear as to why. Rose requested that officers drive her home so she could retrieve some property.”
My version of the events is this: January 23rd was Chinese New Year and Rose became quite emotional. She kicked me, threw objects at me, and repeatedly demanded money from me - $600 was her minimum - as I sat on the sofa in my bedroom browsing through documents to be used in the divorce hearing that was scheduled for the next day. Suddenly, Rose lunged at the documents I was reading. I managed to retain them. Then I decided to call 911 from a telephone on a coffee table next to the sofa. As I was talking to the 911 operator, Rose grabbed a cordless phone and cut into the conversation. After 20 seconds or so, she relinquished the phone and walked out into the hallway saying she intended to visit her attorney. I waited at home until two officers arrived. After briefly describing the situation, I told the officers that I did not want Rose to be removed from the house or even have a police report made. At no time during this incident did I touch Rose. About two hours later, while I was outside shoveling snow from the sidewalk, a squad car pulled up. An officer arrested me for domestic abuse.
The complaint is that I struck Rose in the face. I deny this allegation. It is my word against hers. Evidence for my version lies in the lack of a visible injury and in the 911 recording in which Rose complains about not being given money rather than having been struck in the face. The matter will go to trial on March 26, 2012. From my perspective, this is a case of false testimony regarding domestic abuse. The question here is what role attorney Wing Ming played in aiding her client’s testimony made to police.
Whether or not attorney Kang Ming gave Rose advice on what to tell the police, it is clear that this incident was used to stunning effect in the divorce proceedings. It put me in jail and kept me there while the 3:00 p.m. divorce hearing was taking place at the Family Justice Center. Referee Raleigh refused to reschedule the hearing when attorney Kang Ming complained of the expense in bringing her people to the hearing. My friend, Joe Nelson, was not allowed to be in the room during the hearing so he could tell me what happened.
I was allowed 48 hours from the time of my release from jail to submit my answer to testimony and documents received during the hearing. Joe Nelson incorrectly believed I would be receiving something from the court. (Ms. Kang Ming’s documents arrived in the mail at my home four days after the hearing.) If I wished more precise information about those proceedings, I could order a court transcript on a rush basis, but, according to the referee, it would be “spendy”.
Much to some people’s surprise, I did meet the 48-hour deadline forcing attorney Kang Ming to submit another set of documents to the court responding to my timely submission. I submitted my answer. Ms. Kang Ming then sent me this email on February 1, 2012: “Mr. Mack , Please stop sending correspondences to the court. (In other words, she must have the last word even if she slipped new information into her brief.) Also, to clear up any confusion, it is not a courtesy that you send me exact copies of facts sent to the court, but mandatory.” I had always done that.
RULE 8.4: “MISCONDUCT It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (g) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status in connection with a lawyer’s professional activities.” Comment: Certain of these allegations depend upon whether Ms. Kang Ming knowingly assisted her client in making a false statement to the Minneapolis police and also, of course, whether her client’s statement was indeed false. They also depend upon whether this attorney assisted a court referee in denying my right to participate in a hearing. To the extent that arrests for domestic assault in Minneapolis show systemic gender bias, Ms. Kang Ming’s participation in events leading to my arrest may qualify as gender harassment. The time games that she has played may also be prejudicial to the administration of justice.
Note: The Office of Lawyers Professional Responsibility investigated one of the complaints - #3, which had to do with taking documents from my office while I was under a no-contact order barring me from the house - and found that such action was not improper. The investigator found that, since the documents were not under lock and key, they were available to anyone in the household. In particular, my wife had a right to look at them. The other complaints were not investigated.
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(A) The Board’s Denial of my Complaint
DETERMINATION THAT DISCIPLINE IS NOT WARRANTED
TO Complainant Chester H. T. Mack, Jr. and Eric Todd Cooperstein, Attorney for Respondent Su-Mei Kang Ming
Based upon the entire file the Director of the Office of Lawyers Professional Responsibility hereby determines that discipline is now warranted to Rule 8(d)(1), Rules on Lawyers Professional Responsibiltiy. the attached memorandum of the District Ethics Committee states the basis for this determination.
NOTICE TO COMPLAINANT OF RIGHT TO APPEAL
Dated June 18, 2012 Signed by Robin J. Crabb, assistant director
(B) Rationale for the Denial
Complainant Mr. Chester Mack
Respondent Ms. Su-Mei Kang Ming
The Complainant, Mr. Mack and his wife, Rose Mack, are getting divorced. The Respondent Attorney, Su-Mei Kang Ming is representing his wife. Mr. Mack said he was arrested for domestic abuse in February of 2011, and was gone from his house for a month because of a no-contact order. During that time a tenant in the building reported seeing people in his office going through things. The tenant said Mr. Mack’s wife was there, and possibly his wife’s attorney. Mr. Mack said Ms. Wong Sun had told his wife she needed financial documents, so the wife went through his office and took a lot of financial records without his permission (specifically, they seemed to be looking for documentation of a loan that Mr. Mack had made to a former wife). Later, at a mediation, Ms. Wong Sun produced a thick stack of financial records that Mr. Mack said he had not given to his wife. Mr. Mack also reports things were missing from his office, including his passport, a camera and a recording device. Mr. Mack said he repeatedly requested an account of what was taken from the office at that time and never received it. Mr. Mack stated Ms. Wing sun was totally contemptuous, very uncooperative and dismissive. He feels she did not have the right to tell his wife to go into his office and take his documents.
Ms. Wong Sun’s attorney, Eric Cooperstein, reports that Mr. Mack’s wife had complete access to the entire living unit during the time of their marriage. Mr. Mack was not forthcoming about his financial information during the divorce proceedings, and therefore Ms. Wong Sun had spoken with Mrs. Mack several times about obtaining documentation to verify Mr. Mack’s income. Ms. Mack gathered some records from Mr. Mack’s office and gave them to Ms. Wong Sun. Mr. Cooperstein reports that Mr. and Mrs. Mack shared the same password to the computer and that most of the information obtained was located in the desk, which was not locked. Mrs. Mack also printed some computer spreadsheets of tenant payments. Mr. Cooperstein reports that none of the documents were marked confidential and no steps were taken to hide any documents from Mrs. Mack (or anyone else’s) view in the office. All of the documents were completely accessible.
Rule 4.4(a) requires a lawyer, in representing a client, to not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. A lawyers may not disregard the rights of third persons, including unwarranted intrusions into privileged relationships. At the time Ms. and Mr. Mack were co-owners of the property and still married. None of the documents were marked confidential or locked away or hidden. Ms. Wong sun asked Mrs. Mack to gather proof of her husband’s income and she did so because the information was necessary for the divorce and was readily accessible in their office.
The investigator finds no unethical conduct in this matter.
(C) Appeal of the Board’s decision (June 20, 2012)
Dear Mr. Cole:
I have received a letter from your office dismissing the charges that I brought against attorney Su-Mei Kang Ming. I do wish to exercise my right to appeal.
First let me say that certain statements of fact supplied by Ms. Wong Sun’s attorney are incorrect. It is necessary to understand the time line of events.
February 18, 2011: I was arrested for domestic abuse. As I was standing in the hallway, the police officer immediately put me in handcuffs without asking any questions and led me to the squad car. I was released from jail around midnight of the same day under a “no contact” order that did not allow me to come back to my home or communicate with my wife in any way.
March 8, 2011: My wife files for divorce. I was served with papers at my temporary residence in Brooklyn Park.
March 16, 2011 (approximately): Ms. Wong Sun called me on the telephone. This was our first contact.
March 18, 2011: I pled “guilty-continuance” to the domestic abuse charges and was allowed to return home. (I note that, after a second charge of domestic abuse was dismissed in March, 2012, charges against me in this earlier case were also dismissed in accordance with the plea.)
The time line is significant in terms of Mr. Cooperstein’s statement as reported under “Facts”: “Mr. Mack was not forthcoming about his financial information during the divorce proceedings, and therefore Ms. Wong Sun had spoken with Mrs. Mack several times about obtaining documentation to verify Mr. Mack’s income.”
1. The bulk of documents appear to have been taken while I was away from my house - most likely, in the period between February 20 and March 14, 2011. I did not have any conversations with Ms. Wong Sun about documentation to verify my income or anything else in the divorce proceedings until I took over the case in late October 2011. ( I engaged the services of attorney James Gurovitsch to represent me between April and October, 2011.) Therefore, the argument that the documents were taken because I was uncooperative with Ms. Wong Sun is patently false. The documents were likely taken before I had any conversations with her.
2. I have several email between October and December, 2011, showing that I voluntarily provided financial information to Ms. Wong Sun upon request. She, on the other hand, consistently refused to give me any information. Her answers to my interrogatories were delivered at 5:00 p.m. on April 30, 2012 - the day before we were scheduled to meet with Judge Reding to try to settle the case.
My wife and I filed joint income-tax returns. Although my wife evidently did not keep a separate copy of our tax return, she could easily have requested a copy from the IRS if she wished to verify my and our income.
The analysis emphasizes the fact that my wife and I were still married when the documents were taken. Yes, I suppose that the fact of marriage implies a certain commonality of interest. On the other hand, when my wife filed for divorce in March 2011, she became an adversarial party to a lawsuit. This fundamentally changed the nature of our relationship.
The rights and responsibilities of the parties in the divorce proceedings with respect to discovery are defined by the Minnesota Rules of Civil Procedure. Rule 26.01 states: “Parties may obtain discovery by one or more of the following methods: depositions by oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property; for inspection and other purposes; physical (including blood) and mental examinations; and requests for admission.” I do not see here that, among the approved discovery methods, an attorney or client can ransack the office of the other party in search of documents. I also do not see an exception made for discovery in divorce proceedings. These rules govern the process. My rights were violated when the rules were not followed.
The Office of Lawyers Professional Responsibility seems to think that such methods of extra-legal discovery are OK or, at least, are no “big deal” in divorce cases. I would ask you how far you would go with this theory? Is it all right for a wife to remove her husband’s financial documents if he is effectively unable to have evidence needed at trial? Is he not at least entitled to know what documents have been removed?
I would point out that I made several requests of Ms. Wong Sun for a list of documents that were taken and she consistently refused to supply such a list. I would also point out that I know of particular documents taken which were not returned. As the memorandum notes, several items of value - notably, my U.S. passport and my digital camera - have also come up missing.
I cannot prove that my wife or Ms. Wong Sun were responsible for their disappearance but such things had not happened before. I cannot prove that Ms. Wong Sun coached my wife to make a totally false allegation of domestic assault on January 23, 2012, though the police report indicates that she was present at the precinct station where the complaint was made and she used my absence (as a jail inmate) to advantage in the divorce hearing on the following day.
Mr. Cooperstein said that “none of the documents were marked confidential and no steps were taken to hide any of the documents from Mrs. Mack’s (or anyone else’s) view in the office. All of the documents were completely accessible.” No, before I was arrested for domestic assault on January 18, 2011, I had no reason to hide any documents from my wife, or mark them confidential, or put them in a locked storage place. But even if I had after knowing of my wife’s new motive, I could not have placed any documents in a secure place because the police officer immediately put me in handcuffs and led me away to jail (and to a month’s absence from my home) when he arrived to investigate my wife’s 911 complaint. It was physically impossible for me to have taken those precautionary steps then or in the following month.
Finally, I would point out that my complaint made to your office involved ten different types of ethical violation. You have chosen to look at only one of them. Personally, I would be included to forgive ethical lapses in a single instance but not where malice and deceit have been repeated exhibited in a variety of ways over a long period of time. Your approach seems to be different.
Your office’s ruling of “no unethical conduct in this matter” sends a message to Ms. Wong Sun that, because she is a licensed attorney, “anything goes”. It sends a message to me that your office is reluctant to discipline fellow “members of the club” especially when represented by a well-regarded attorney such as Mr. Cooperstein.
I think I have demonstrated in this letter that some of the factual assumptions supporting your decision are incorrect. There are right ways and there are wrong ways to do discovery. I would urge the board to overturn the decision.
(D) The Board’s Denial of my Appeal
July 4, 2012
Mr. Chester H.T. Mack, Jr.
Re. Appeal of Director’s Disposition in complaint of Chester H. T. Mack,Jr. against Su-Mei Kang Ming
Dear Mr. Mack:
I have carefully reviewed the file in the above matter and, pursuant to the Rules on Lawyers Professional Responsibility, hereby approve the disposition made by the Director. The reasons for my decision are as follows.
The Office of Lawyers Professional Responsibility is limited to investigating complaints of unethical conduct and taking disciplinary action against lawyers when appropriate. Lawyer conduct is governed by the Minnesota Rules of Professional Conduct which require clear and convincing evidence of a violation.
Based on the information in the file, I do not find clear and convincing evidence of a violation. Your Complaint #3, regarding the removal of various records, was specifically investigated for evidence of a violation. Because these records were freely available to the client, you had no expectation of privacy. Advising a client to obtain such documents is a common request in a divorce proceeding and does not constitute unethical behavior.
A lawyer has an obligation to zealously represent a client’s interests. A lawyer relies on facts, interpretations and legal strategies that are favorable to the client’s case. While you may disagree as the facts and be frustrated by actions taken during the course of this matter, there is no evidence that it rises to the level of an ethical violation.
My approval of the Director’s disposition means the matter is now closed.
Carol E. Cummins
cc Su-Mei Kang Ming c/o Eric T. Cooperstein
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