ENTERED: February 15, 2018.
OPINION AND ORDER
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 respond to a charge of
three separate violations of the Kentucky Rules of
Professional Conduct. The Board found Niehaus guilty of
violating all three rules, SCR 3.130(1.3),
(1.4)(a)(3), and (1.16)(d), 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.
FACTUAL AND PROCEDURAL HISTORY.
agreed to represent Owen Burns 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 how paid Niehaus an
additional $2, 500.
days later, Burns alerted Niehaus to the double charge. After
repeated inquiries by Burns, repeated false assurances from
Niehaus, and a bounced check for $2, 500 given by Niehaus,
Burns finally received the extra $2, 500 on January 22, 2016,
three months after the initial double charge.
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 Burns with
opposing counsel's discovery requests and receiving the
requested information from Burns sufficiently in advance of
the deadline to achieve timely production. On November 24,
2015, Burns 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 purportedly filed on Burns's
behalf. But in addition to failing to respond to opposing
counsel's discovery requests by the mid-November
deadline, 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 discovery opposing counsel
requested of Niehaus but never received.
Burns felt nervous and unprepared for the March 21, 2016,
hearing, Burns sent a text message to Niehaus seeking a
meeting to prepare for the hearing on March 16. Niehaus
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 responded to the motion by
sending the judge's secretary an email indicating he was
available on June 9. However, Niehaus did not inform Burns of
the rescheduled hearing despite several requests from Burns
for an update on his case and whether a specific date had
been set for the hearing.
24, 2016, Burns'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
Burns's wages each pay period. Burns immediately reached
out to Niehaus demanding an explanation. Niehaus stated that
he had no knowledge of the garnishment and that it was an
administrative error. Burns told Niehaus that the garnishment
was entered during a June 9 hearing on Burns's case.
Niehaus falsely stated that he knew nothing about a June 9
June 24 and July 14, 2016, Niehaus prevaricated about his
actions on Burns'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 Burns's child support obligation
while Niehaus worked on getting the garnishment overturned;
ho such payments were made.
14, 2016, Burns 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; Burns has yet to receive any refund. After
August 9, 2016, Burns's text messages to Niehaus bounced
back as undelivered and Burns's several calls to Niehaus
went unanswered. Burns has not received any contact from
Niehaus since August 9, 2016.
August 16, 2016, Burns's new counsel filed a Motion 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.
actions recounted above resulted in a 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
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.
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 additional
address. On February 21, 2017, Niehaus signed the green card
indicating proof of service at the alternate address sent by
the Executive Director. The Charge was also forwarded to the
Kenton County Sheriff ...