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Kentucky Bar Association v. Niehaus

Supreme Court of Kentucky

June 14, 2018

KENTUCKY BAR ASSOCIATION, MOVANT
v.
DANIEL ALAN NIEHAUS, RESPONDENT

          OPINION AND ORDER

         This matter came before the Board of Governors of the Kentucky Bar Association (the Board) as a default case under Supreme Court Rule (SCR) 3.210 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 recommended to this Court that Respondent be permanently disbarred. We agree with, and adopt, the Board's recommendation to permanently disbar Respondent.

         I. FACTUAL BACKGROUND

         Respondent Daniel Aian Niehaus was admitted to the practice of law in the Commonwealth of Kentucky on January 19, 2012. His KBA Member No. is 94639 and 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 an 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 Respondent'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 hot been paid, prompting its legal counsel 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.

         In March 2017, Snowball's new attorney, Todd McMurtry, sent . Respondent a demand for Snowball's portion of the $22, 500.00 settlement. He also inquired about Humana's subrogation payment. Respondent never responded.

         Because of the above actions, the Inquiry Commission (Commission) filed a four-count charge alleging the following violations. Count I charges that Respondent violated SCR 3.3130(1. l5)(b) (Safekeeping Property), which states that "[u]pon receiving funds . . ., a lawyer shall promptly notify the client."[1]Count II charges that Respondent violated SCR 3.l3O(l.l6)(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 HI and IV charge that Respondent violated SCR 3.l3O(3.4)(c) (Fairness to Opposing Party and Counsel).[3]

         The Commission's charge was mailed to Respondent in August 2017. It was returned stamped "Return to Sender - No Such Street - Unable to Forward." Several unsuccessful attempts to serve Respondent were made by the Kenton County Sheriffs Department. Respondent was constructively served via the KBA Executive Director, pursuant to SCR 3.175(2), on September 13, 2017. Respondent filed no answer to the charge.

         II. PRIOR DISCIPLINE

         In January of 2017, the Board of Governors suspended Respondent from the practice of law for failure to pay bar dues and for non-compliance with his continuing legal education requirements. He remains suspended as of this date.

         Recently, by Opinion and Order of this Court dated February 15, 2018, this Court suspended Respondent from the practice of law for 181 days and ordered him to pay $2, 500.00 in restitution to his former client.[4]

         On November 4, 2016, a complaint alleging four violations of professional conduct was filed by the Disciplinary Counsel of the Supreme Court of Ohio. As a result, the Ohio Supreme Court suspended Respondent from the practice of law in Ohio. See Disciplinary Counsel v. David Alan Niehaus, 2017-Qhio-472.

          I ...


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