KENTUCKY BAR ASSOCIATION V. DANIEL ALAN NIEHAUS
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(_ CORRECTED: FEBRUARY 20, 2018 TO BE PUBLISHED 2017-SC-000579-KB KENTUCKY BAR.ASSOCIATION v. MOVANT IN SUPREME COURT DANIEL ALAN NIEHAUS RESPONDENT · OPINION AND ORDER This matter came before the Board of Governors of the Kentucky Bar . . Association as a default case under Supreme Court Rule (SCR) 3.210 after . . Daniel Alan Niehaus! failed to tespond to a charge of three separate violations of the Kentucky Rules of Pro~essional Conduct. The Board found Niehaus guilty 1 Daniel Alan l\Jiehaus, KBA Member No. 94639, was admitted to the practice oflaw in the Commonwealth of Kentucky on January 19, .2012, and his bar roster address is 5294 Madison Pike, #201, Independence, Kentucky 41051. Niehaus has no prior disciplinary history. However, on January 20, 2017, the Board of Governors vpted to suspend Niehaus for faillire to pay bar dues and for non-compliance with his continuing education requirements. of violating all three rules, SCR 3.130(1.3)2, (1.4)(a)(3)3, and (L16)(d)4, and recommended a 181-day suspension, to be served consecutively with any pending discipline; a _$2,500 payment in restitution to his client, and payment of the costs of the proceeding, $1,857.36, as required by SCR 3.450. We adopt the Board's recommendation and issue the recommended discipline. I. FACTUAL AND PROCEDURAL HISTORY. Niehaus agreed to represent Owen Bums in a post-divorce action regarding child custody and child support. Niehaus charged a $2,500 retainer, which Burns paid with a credit card. Four days later, Niehaus contacted Burns, claiming that Niehaus had to "re.,..run" Burns's credit card because the charge failed to process. However, the first charge had processed, meaning that Burns had now paid Niehaus an additional $2,500. Three ·days later, Bums alerted Niehaus· to the. double charge. After \ repeated inquiries by Burns, repeate<;i. false assurances from Niehaus, and a · .bounced check for $2,500 ~ven. by Niehaus, Burns finally received the extra ' $2,500 on January 22; 2016, three J;Ilonths after the initial double charge. "A lawyer shall act with reasonable diligence and promptness in representing a client." · 2 a."A lawyer shall: ... keep the client reasonably informed about the status of the matter." 4 "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrenderlng papers and property to which the client is entitled and refunding any .advance payment of fee or expense ·that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law." 2 ·' During the pendency of Burns~s case, Niehaus failed to respond to. opposing counsel's discovery requests that were due mid-November of 2015, despite having presented Bums with opposing counsel's discovery requests · and receiving the requested information from Bums suffici~ntly in advance of the deadline to achieve timely production. On November 24, 2015, Bums sent Niehaus a letter stating that the court had set a March 21, 2016, hearing date on Burns's case, attached copies of what purported to be the discovery responses to opposing counsel signed by Niehaus, and attached a Motion for Child Support purpor_tedly filed on Burns's behalf. But in addition to failing to respond to opposing counsel's discovery-requests by the mid-November· deadliil.e~ Niehaus never filed the Motion for Child Support. Niehaus's failure to respond to the discovery requests is highlighted by. the February 16, 2016, hearing on opposing counsel's Motion to Compel the discove:ty opposing counsel requested of Niehaus but never received. · ·Because Bums felt nervous and unprepared for the March 21, 2016, hearing, Burns s.ent a text message to Niehaus seeking a meeting to prepare for the hearing on March 16. N~ehaus responded by falsely claiming that the March 21 hearing date had been moved to early May 2016. Luckily for Niehaus, opposing counsel filed a motion to reschedule the hearing date to June 9, 2016. Niehaus respo_nded to the motion by sending the judge's secretary an email indicating he was available on June 9. Howt'.ver, Niehaus . did not inform Burris of the rescheduled hearing despite several requests from 3 Bums for an update on hi~ case.and whether a specific date·had been set for the hearing. On June 24, 2016, Bums's employer notified him that it received a court ordered wage garnishment for the payment of child support. The garnishment consumed approximately one-third of Bums's" wages each pay period. Bums immediately reached out to Niehaus demanding an expianation. Niehaus stated that he had no knowledge of the garnishment and that it was an administrative error. Bums told Niehaus that the gamishmen~ was entered during a June 9 · hearing on Burns's case. Niehaus falsely stated that he knew nothing about a June 9 hearing. Between June 24 and Juiy 14, 2016, Nieha~s prevaricated about his actions on Bums's case, falsely claiming he was filing an appeal of the garnishment order, that he had ordered transcripts of the June 9 hearing, and that he had filed a request for reconsideration ·of the garnishment order with the Kenton Circuit Court. Niehaus went so far as to promise Burns that Niehaus would pay Bums's child support obligation while Niehaus worked .on getting the garnishment overturned; ·ri.o such payments were made. On July 14, 2016, Bums.sent Niehaus a text and email ending the engagement and seeking a return of the $2,500 retainer. On July 19, 2016, Niehaus responded that a full refund was forthcoming; Bums has yet to receive any refund. After Augµst 9, 2016, Bums's text messages to Niehaus bounced back as undelivered and Burns's several calls to Niehaus went unanswered. Bums has not received any contact from Niehaus since August 9, 2016. 4 On August 16, 2016, Burns's new counsel filed aMotion to Reconsider the Garnishment with the Kenton Circuit Court, which overruled the motion and held that Burns's only recourse was to pursue an action against Niehaus. The actions recounted above resulted in ~ three count .Charge filed on February 16, 2017, by the Inquiry Commission, alleging .violations of SCR ·. 3·.310(1.'3), (1.4)(a)(3), and (1.16)(d). The Complaint was initially sent to Niehaus at his Bar Roster address by way of certified mail on September 20, 2016, but was returned as unclaimed. The Complaint was then sent to the Kenton County Sheriff for service, but the Sheriffs Office was unable to locate Niehaus. Niehaus was served via service on the KBA Executive Director pursuant to SCR 3.175(2) on December 2, 2016. No response was filed. Niehaus was served with a copy of.the Charge lodged against him through service upon the KBA Executive Director on February 16, 2017. The Executive Director mailed a copy of the Charge to Niehaus's bar roster address ·and one a,dditional address. On February 21, 2017, Niehaus signed the green card indicating proof of service at the alternate address sent by the Executive D . Director. The Charge was also forniarded to the Kenton County Sheriff for service, but once again the Sheriffs Office was unable to locate Niehaus.Niehaus did not file an answer to the Charge. The Board of Governors unanimously, by a vote of 18-0 with one recused, found Niehaus guilty of violating SCR 3.130(1.3), (1.4)(a)(3), and (1.16)(d). The Board voted 11-7 to recommend that Niehaus be suspended from 5 the practice of law for 181 days, to be served consecutive with any pending ~scipline, and pay $2,500 in restitution to Burns. JI. ANALYSIS. From the record, it is clear·that Niehaus violated SCR 3.310(1.3), (l.4)(a)(3), and (1.16)(d). Regarding SCR 3.310(1.3), Niehaus blatantly lied to Burns, .failed to respond to discovery requests in Burns's case, failed to remedy .'his failures, falsely portrayed activity and work on the case when no such activity or work occurred, missed a crucial hearing in Burns's case, and failed to protect his client from garnishment, among other wrongdoings. Regarding SCR 3.310(1.4)(a)(3), Niehaus blatantly lied to Burns and respond to Burn~'s altog~ther failed to inquiries about important matters regarding Burns's case, including failing to inform Burns about a crucial hearing date resulting in garnishment of Burns's.wages. Regarding SCR 3.310(L4)(a)(3), Niehaus has ---. taken no steps whatsoe~ef to protect Burns's interests after termination of their relationship, still h~s not returned the original retainer fee after agreeing to do so, and failed to respond to Burns's inquiries about the fee and in general. III. ORDER. Finding the Board's findings and recommended sanctions appropriate, it is ORDERED that: 1. Daniel Alan Niehaus is found guilty of violating SCR 3.310(1.3), l. (1.4)(a)(3), and (1.16)(d). 6 2. Niehaus is suspended from the practice oflaw for a period of 181 days to be served consecutively with any pending discipline. 3. Niehaus must pay his former client, Owen Burns, $2,500 in restitution. 4. Under SCR 3.450, Niehaus must pay:the costs of this proceeding, as calculated and certified by the Di~ciplinary Clerk, in the amount of $1,857.36. 5. Pursuant to SCR 3.390, Niehaus shall, within ten days from the entry of this opinion and order, provide written notice to his dients of his inability to represent them; provide written notice to all courts in which he has matters pending of his suspension from the practice of law; and furnish copies of all letters of notice to the Executive Direc~or of the Kentucky Bar Association. Furthermore, to the extent possible, Niehaus shall immediately cancel and cease any advertising activities in which he is engaged. All sitting. An concur. ENTERED: February 15, 2018. 7 .~upnm:e ~Inurf nf ~:enfudtu 2017-SC-000579-KB KENTUCKY BAR ASSOCIATION v. MOVANT IN SUPREME COURT DANIEL ALAN NI~HAUS RESPONDENT ORDER CORRECTING The Opinion and Order of the Court rendered February 15, 2018 is _corrected on its face by 'substitution of the attached Opinion and Order in lieu of the original Opinion and Order. Said correction does not affect the holding of the original Opinion and Order of the Court. ENTERED: February 20, 2018 i -
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