(_

CORRECTED: FEBRUARY 20, 2018 TO BE PUBLISHED

2017-SC-000579-KB

KENTUCKY BAR.ASSOCIATION MOVANT



## v. IN SUPREME COURT

DANIEL ALAN NIEHAUS RESPONDENT

· OPINION AND ORDER This matter came before the Board ofGovernors ofthe Kentucky Bar

. . Association as a default case under Supreme Court Rule (SCR) 3.210 after

. . Daniel Alan Niehaus! failed to tespond to a charge ofthree separate violations ofthe Kentucky Rules of**Pro~essional** Conduct. The Board found Niehaus guilty

1 DanielAlan l\Jiehaus, KBA Member No. 94639, was admitted to the practice oflaw in the Commonwealth ofKentucky onJanuary 19, .2012, and his barroster address is 5294 Madison Pike, #201, Independence, Kentucky 41051. Niehaus has no prior disciplinary history. However, onJanuary 20, 2017, the Board ofGovernors vpted to suspend Niehaus for faillire to paybar dues and for non-compliance with his continuing education requirements.ofviolating 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 ofthe costs ofthe 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.

2 "A lawyer shall act with reasonable diligence and promptness in representing a client." · a."A lawyer shall:
...keep the clientreasonablyinformed about the status ofthe matter." 4 "Upon termination ofrepresentation, a lawyer shall take steps to the extent reasonablypracticable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment ofothercounsel, surrenderlngpapers and property to which the client is entitled and refunding any.advance payment offee or expense·thathas not been earned orincurred. The lawyermayretain papers relating to the client to the extentpermitted by otherlaw." 2·'

Duringthe pendency 

### of**Burns~s** case, Niehaus failed to respond to. opposing counsel's discovery requests that were due mid-November of2015, despite havingpresented 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 ofwhatpurported to be the discovery responses to opposing counsel signed by Niehaus, and attached a Motion for Child Supportpurpor_tedly filed on Burns's behalf. But in addition to failing to respond to opposing counsel's discovery-requests bythe 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 ofNiehaus but neverreceived. · ·Because Bums felt nervous and unprepared for the March 21, 2016, hearing, Burns s.ent a text message to Niehaus seeking a meetingto prepare for the hearing on March 16.**N~ehaus** responded byfalsely claiming thatthe 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 thejudge's secretary an email indicating he was available onJune 9. Howt'.ver, Niehaus
. did not inform Burris ofthe rescheduled hearing despite several requests from

3Bums for an update on**hi~** case.and whether a specificdate·had been set for the hearing. On June 24, 2016, Bums's employer notified him that itreceived a court ordered wage garnishment for the payment ofchild support. The garnishment consumed approximately one-third ofBums's"wages each pay period. Bums immediatelyreached out to Niehaus demanding an expianation. Niehaus stated that he had no knowledge ofthe garnishment and thatit was an administrative
error. Bums told Niehaus thatthe**gamishmen~**was entered during a June 9

·hearing on Burns's case. Niehaus falsely stated thathe knew nothing about a June 9 hearing. BetweenJune 24 and Juiy 14, 2016,**Nieha~s** prevaricated about his actions on Bums's case, falsely claiminghe was filing an appeal ofthe garnishment order, that he had ordered transcripts ofthe June 9 hearing, and that he had filed a request for reconsideration·ofthe garnishment orderwith 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 ofthe $2,500 retainer. OnJuly 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.
4OnAugust 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. The actions recounted above resulted in**~** three count .Charge filed on February 16, 2017, by the Inquiry Commission, alleging.violations ofSCR

·. 3·.310(1.'3), (1.4)(a)(3), and (1.16)(d). The Complaintwas initially sentto Niehaus athis Bar Roster address by way ofcertified mail on September 20, 2016, butwas returned as unclaimed. The Complaintwas then sent to the Kenton County Sherifffor service, but the Sheriffs Office was unable to locate Niehaus. Niehaus was served via service on the KBA Executive Director pursuantto 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 ofthe Charge to Niehaus's barroster address ·and one a,dditional address. On February 21, 2017, Niehaus signed the green

card indicating proofofservice at the alternate address sent bythe Executive D
. Director. The Charge was also forniarded to the Kenton County Sherifffor service, but once again the Sheriffs Office was unable to locate Niehaus.- Niehaus did notfile an answer to the Charge. The Board ofGovernors unanimously, by a vote of 18-0 with one recused, found Niehaus guilty ofviolating 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
5the practice oflaw for 181 days, to be served consecutive with any pending**~scipline,** and pay $2,500 in restitution to Burns. JI. ANALYSIS. From the record, itis 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 hearingin Burns's case, and failed to protect his client from garnishment, among other wrongdoings. Regarding SCR 3.310(1.4)(a)(3), Niehaus blatantlylied to Burns and**altog~ther** failed to respond to**Burn~'s** inquiries aboutimportantmatters regarding Burns's case, includingfailing to inform Burns about a crucial hearing date resulting in garnishment ofBurns'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** notreturnedthe original retainerfee after agreeing to do so, and failed to respond to Burns's inquiries about the fee and in general. III. ORDER. Findingthe Board's findings and recommended sanctions appropriate, it is ORDERED that: 1. DanielAlan Niehaus is found guilty ofviolating SCR 3.310(1.3), l. (1.4)(a)(3), and (1.16)(d).

62. Niehaus is suspended from the practice oflaw for a period of 181 days to be served consecutivelywith any pending discipline. 3. Niehaus must payhis former client, Owen Burns, $2,500 in restitution. 4. Under SCR 3.450, Niehaus must pay:the costs ofthis 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 ofthis opinion and order, provide written notice to his dients ofhis inability to represent them; provide written notice to all courts 

## in which he has matters pending ofhis suspension from the practice of law; and furnish copies ofall letters ofnotice to the Executive**Direc~or** ofthe Kentucky BarAssociation. 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 MOVANT


## v. IN SUPREME COURT
DANIEL ALAN**NI~HAUS** 

### RESPONDENT
ORDER CORRECTING


### The Opinion and Order ofthe Court rendered February 15, 2018 is _corrected on its face by'substitution ofthe attached Opinion and Order in lieu ofthe original Opinion and Order. Said correction does not affect the holding ofthe original Opinion and Order ofthe Court. ENTERED: February 20, 2018

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