KENTUCKY BAR ASSOCIATION V. DANIEL ALAN NIEHAUS

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TO BE PUBLISHED ~uprtntt .dtnurl nf ~tnfurku 2018-SC-000148-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 (the Board) as a defaul~ case under Supreme Court Rule (SCR) . 3.2l-O after Respondent, Daniel Alan Niehaus,· failed to respond to a charge of four separate violations of the Kentucky Rules of Professional Conduct. The Board found Niehaus guilty of violating all four rules and recommende_d to this. Court. that _Respondent. be permanently disbarred. We agree ~th, and adopt, the Board's recommendation to permanently disbar Respondent. I. FACTUAL BACKGROUND Respondent Daniel Aian Niehaus was admitted to the. practice of la"Y in the Commonwealth of Kentucky on January 19, 2012. His KBA Member No. is 94639 a.pd his last known address is listed on the bar roster as 5294 Madison Pike, #201, Independence, Kentucky, 41501. In October 2016, Respondent represented Daniel Snowball at a mediation conference regarding Snowball's personal injury claims against several defendants. Upon conclusion of the mediation, Snowball and another · plaintiff accepted~ aggregate settlement payment of $22,500.00, from which , \ $9,166.66 would be paid to Humana Insurance Company to retire its subrogation claim against the defendants. Defendant, State Farm Insurance Company, agreed to issue a check in the amount of $22,500.00 payable to both Snowball and Respondent. From · that check, Humana's subrogation payment and Respon.dent's fee were to be deducted. The check was issued in November 2016 and sent to Snowball. Snowball endorsed the check and delivered it to Respondent's legal assistant. By January 2017, Humana had ·not been paid, prompting its legal co~nsel to email Respondent repeatedly seeking payment .. After receiving no response, Humana filed a Motion to Enforce Settlement Agreement in Kenton Circuit Court. On January 27, 2017, the Kenton Circuit Court entered an Order to Enforce Settlement, requiring Respondent to pay Humana within fourteen days. Four days later, Respondent sent Humana's counsel an email · seeking verification of the payee. Humana responded with the payee information the same day. Neither Snowball nor Humana has yet received their ·respective portions of the $22,500.00 settlement. 2 In March 2017, Snowball's. new attorney, Todd McMurtry, sent . I Respo_ndent a demand for 'Snowball's portion of the $22,500.00 settlement. He also inquired about Humana's subrogation payment. Resporident never responded. Because- of the above actions, the Inquiry Commission (Commis:::;ion) filed a four-coun.t charge alleging ~he following violations. Count I charges that· Respondent violated- SCR 3.3130(1. lS)(b) (S¢ekeepirig Property), which states. that . "[u]pon receiving funds . ~ '.' a lawyer shall promptly notify the client. "I . Count II charges that Respondent violate~ SCR 3.130(~.16)(d) (Declining or Terminating Representation), which states that "[u]pon 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 .... "2 . . Counts III and IV charge that Respondent violated SCR 3.130(3.4)(c) (Fairness . . . . . . .. to Opposing Party and Counsel). 3 I SCR 3.130(1. lS)(b): "Upon receivl.ng funds or other property in which a client has interest, a lawyer shall promptly. notify the client. Except as stated in this Rule or otherwise permitted by law or by agreement with the client a lawyer shall promptly deliver to the clierit any funds or other property that the client is entitled to receive. and, _upon request by the client, shall. promptly render a full accounting regarding such property." an 2 SCR 3.130(1.16)(d): "Upon termination of representation, a lawyer shall take steps to.the extent reasonably practicable to protect a client's iriterests, such as giving reasonable notice to the client, allowing. time for employment of other counsel, · surrendering 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 th_e extent permitted by other la~.,,. . a SCR 3.130(3.4)(c):· "A laWyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal b~sed on an assertion that no valid obligation exists." · The Coinmission's charge was ·m~led to Respondent in August ·2017. It was returned stamped "Return to Sender - No Such Street - Unable to Forward." Several unsuccessful attempt&. to serve Respondent were made by the Kenton. County Sheriffs Department. Respondent was constructively . .. . . ser.Ved via the KBA Executive Director, pursuant to SCR 3.175(2), on September 13, 2017. Respondent filed no answe'r to the charge. II. PRIOR DISCIPLINE in January of 201 7, ·the Board of Governors suspended Respondent from . . . the pr~ctice of law for failure .to pay bar dues and for non-compliance with his continuing legal education requireme~ts. He remains suspended as of this date . . Recently, by Opinion and Order of this Court datedFebruar.Y 15, 2018, this Court suspended Respondel'l:t from the practice of law for 181 days and · ordered hi;m to pay $2,500.00 in restitution to his former client. 4 . . On November 4, 2016, a complaint alleging four violations of professional. conduct ~a~ filed by the Disciplinary Counsel of the sU:preme Court· of O~io. As a result, the Ohio Supreme Court suspended Respondent from the· practice of law in Ohio. See Disciplinary Counsel v. David Alan Nzehaus, 201 7 -Ohio472. 4 KBA v. Niehaus, 539 S.W.3d 35 ,(Ky. 2018). 4 III. ANALYSIS Due to Respondent's failure to respond to the current charge, the · Commission submitted .the matter to the Board of Governors under SCR 3.210(1);our rule for processing default cases. Following a discussion of the ch~ges, the Board, by a vote of .14-2, recommended that Respondent be permanently disbarred from the practice of law. The Board also considered a recommended discipline of a five (5) year suspension from the practice of law with completion of EPEP. Having reviewed the record, we agre~ that the Board reached the appropriate conclusions as to Respondent's guilt. Respondent has not filed a notice to this Court to review the Board's decision,. and we do not elect to review the decision of the Board under SCR 3.370(8). Accordingly, the decision of the Board is hereby adopted under SCR 3.370(9). For the foregoing reasons, it is hereby ORDERED: 1. Respondent, David Alan Niehaus, is found guilty of violating SCR 3.. 130 (1.15)(b); SCR 3.130 (1.16)(d)(2); and SCR 3.130 (3.4)(c) (two counts). 2. Respondent, David Alan Niehaus, KBA Member No. 94639, is . perm~ently f disbarred from the practice of law in the Commonwealth of Kentucky; 3. As required by SCR 3.390, Respondent shall notify, by letter duly placed with the United States .Postal Service, all courts or tribunals in which he has· matters pending, and ajl his clients of his inability to represent them and of the necessity and urgency of promptly retaining new counsel. Respondent 5 shall simultaneously provide a copy of all such letters of notification to the Office of Bar Counsel. Respondent s~all immediately advertisements to the extent possible and s~all cancel any pending terminate any advertising activity. 4. In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $266.36, for which execution may issue from this Court upon finality of this Opinion and Order. All sitting. All concur. ENTERED: June 14, 2018. J CHIEF JUSTICE 6 L

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