2019-SC-000089-KB

RACHELLE NICHOLE HOWELL TO BE PUBLISHED

V. IN SUPREME COURT

KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER

Pursuant to SCR 3.480(2), 1 Movant, Rachelle Nichole Howell, moves this

Court to enter a negotiated sanction resolving the pending disciplinary

1 SCR 3.480(2) reads:

The Court may consider negotiated sanctions of disciplinary

investigations, complaints or charges prior to the commencement of a hearing before a Trial Commissioner under SCR 3.240. Any member who

is under investigation pursuant to SCR 3.160(2) or who has a complaint

or charge pending in this jurisdiction, and who desires to terminate such

investigation or disciplinary proceedings at any stage of it may request

Bar Counsel to consider a negotiated sanction. If the member and Bar

Counsel agree upon the specifics of the facts, the rules violated, and the

appropriate sanction, the member shall file a motion with the Court

which states such agreement, and serve a copy upon Bar Counsel, who

shall, within 10 days of the Clerk's notice that the motion has been

docketed, respond to its merits and confirm its agreement. The

Disciplinary Clerk shall submit to the Court within the 10 day period the

active disciplinary files to which the motion applies. The Court may

approve the sanction agreed to by the parties, or may remand the case

for hearing or other proceedings specified in the order of remand.proceeding against her (KBA File No. 17-DIS-0147) by imposing a thirty-day

suspension. The KBA has no objection. Finding this sanction to be the

appropriate discipline for her misconduct, we grant Howell ’ s motion.

Howell was admitted to the practice of law in the Commonwealth of

Kentucky on October 7, 2003. Her Kentucky Bar Association (KBA) number is

89867 and her current bar roster address is 305 Circle Drive, Shepherdsville,

Kentucky 40165.

Howell ’ s disciplina r

y history includes a private admonition in 2010 for

failing to act with reasonable diligence and promptness in representing several

clients and failing to keep those clients reasonably informed about the status of

their matters. Further, she had a private admonition in 2015 for failing to act

with reasonable diligence and promptness in representing a client, for

disobeying an obligation under the rules of a tribunal, and for improperly

providing financial assistance to a client for pending litigation. A private

admonition with conditions was also issued in 2016 for failing to act with

reasonable diligence and promptness in representing a client, for failing to

promptly comply with a reasonable request for information, and for failing to

take reasonable steps to protect the client ’ s interest upon termination of

representation by failing to refund the unearned advance-fee payment.

This Court rendered an opinion regarding Howell, Kentucky Bar

Association v. Rachelle Nichole Howell, 2018-SC-000438-KB, on March 14,

2019. In that case, we found Howell guilty of violating numerous Supreme

Court Rules. Therein, the KBA consolidated ten files (a total of thirty-one

2counts) against Howell, and we found that she violated numerous ethical rules.

We suspended Howell for one-hundred-eighty-one days due to those violations.

She is to remain suspended pursuant to that order until such time she is

reinstated to the practice of law by order of this Court pursuant to SCR 3.510.

I. BACKGROUND

Turning to the facts of the case at bar, in February 2017, Leighana

Skaggs hired Howell to file an action to establish custody and visitation for a

minor child ahead of a planned relocation. Howell quoted a fee of $1,000 to

Skaggs, who paid Howell a total of $925. Howell neither deposited the

payments into an escrow account nor obtained a signed fee agreement with

Skaggs as required by SCR 3.130(1. 5)(f). 2 On February 15, 2017, Howell filed a

custody petition in Jefferson Family Court. Her attempts to serve the opposing

party were unsuccessful. Until Howell stopped returning her messages, Skaggs

maintained regular contact with Howell regarding the status of service on the

opposing party and provided Howell with the party ’ s work address to aid with

service. Howell took no action.

On April 10, 2017, Howell requested Skaggs pay $75 to hire a special

bailiff and Skaggs asserts she made the payment. Howell did not hire the

bailiff. Although Howell does not dispute that Skaggs paid for a special bailiff,

2 SCR 3.130(1.5) reads:

A fee may be designated as an advance fee. An advance fee agreement

shall be in a writing signed by the client evidencing the client's informed

consent, and shall state the dollar amount of the retainer, its application

to the scope of the representation and the time frame in which the

agreement will exist.

3Howell insists she does not recall receiving the payment. The last

communication Skaggs received from Howell was an email dated April 10,

2017. On April 26, 2017, after not hearing from Howell, Skaggs went to the

address where she believed Howell ’ s office was located. Upon arriving at the

address, Skaggs was informed that although Howell ’ s website stated her office

was at that location, Howell had not worked there since late 2015.

Skaggs emailed Howell on April 26 and April 27, 2017. In the April 27

email, she requested a refund and informed Howell that she had a new

attorney. Howell did not respond to either email. Skaggs filed a bar complaint

on May 1, 2017, and Howell filed a response on August 11, 2017.

The Inquiry Commission issued a five-count charge against Howell on

June 25, 2018. Count I alleged Howell violated SCR 3.130(1.3) by failing to

have the opposing party served with the custody petition and/or by failing to

hire the special bailiff. Count II alleged Howell violated SCR 3.130(1.4)(a)(3) by

failing to respond to her client ’ s attempts to reach her after April 10, 2017.

Count III alleged Howell violated SCR 3.130(1. 5)(a) by collecting $925 from her

client and failing to complete work beyond filing the petition, including failure

to complete service upon the opposing party. Count IV alleged Howell violated

SCR 3.130(1.15)(e) by failing to deposit the fee payments into an escrow

account in the absence of a client-signed advance fee agreement as required by

SCR 3.130(1. 5)(f). Count V alleged Howell violated SCR 3.130(1. 16)(d) by

failing to return the unearned portion of the fee to Skaggs upon termination of

representation. Howell admits she violated these rules.

4The parties have agreed to a negotiated sanction, which would result in

Howell ’ s suspension from the practice of law for thirty days suspension with

conditions including: a partial refund to Howell ’ s former client in the amount

of $425, which both parties assert she has already satisfied, and Howell ’ s

continued participation in KYLAP. The Motion also requests the suspension

take effect March 14, 2019, the date this Court suspended Howell for onehundred-eighty-one days. Agreeing with the parties that this sanction is

appropriate, we accept its terms and suspend Howell from the practice of law

for thirty days with conditions. The date of the suspension shall be retroactive

and will commence on March 14, 2019.

II. ANALYSIS

In agreeing to the negotiated sanction, the KBA cites three cases in

support of its adequacy: Kentucky Bar Association v. Pridemore, 439 S.W.3d

742 (Ky. 2014); Kentucky Bar Association v. Zimmerman, 365 S.W.3d 556 (Ky.

2012); and Kentucky Bar Association v. Justice, 198 S.W.3d 583 (Ky. 2006).

In Pridemore, the attorney violated SCR 3.130(1.3) (diligence), (1.4)(a)(3)

and (4) (communication), (1. 16)(d) (termination of representation), (8.1)(b)

(failure to respond to bar complaint), (8.4)(c) (dishonesty, deceit, fraud or

misrepresentation). Id. at 744. Pridemore represented a client in a divorce and

child-custody matter. Id. Upon appeal, Pridemore failed to respond to the

opposing party ’ s motion to dismiss. Id. Therefore, the appeal was dismissed.

Id. When the client contacted Pridemore, he informed the client that the

dismissal was a technical or clerical error and he would have the appeal

5reinstated. Id. Eventually, Pridemore admitted he could not set the dismissal

aside and stopped communicating with the client altogether. Id. We

suspended Pridemore for thirty days. Id.

In Zimmerman, the attorney violated SCR 3.130(1.3) (diligence), (1.4)(a)

(communication), (1. 16)(d) (termination of representation), and (8.1)(b) (failure

to respond to bar complaint). 365 S.W.3d at 557. Zimmerman abandoned the

client ’ s case and did not return the client ’ s calls in a timely manner.

Thereafter, Zimmerman failed to communicate with the client about the status

of her case. Id. Eventually, the client sent a certified letter terminating

Zimmerman ’ s representation and requesting her file be sent to her new

counsel. Id. The attorney failed to timely comply with this request and also

failed to respond to the bar complaint. Id. Furthermore, Zimmerman had two

prior disciplinary matters. Id. The sanction in the Zimmerman case was a

thirty-day suspension. Id.

In Justice, the attorney violated SCR 3.130(1.3) (diligence), (1.4)(a) and (b)

(communication), (1.15) (a) (commingling), and (1. 16)(d) (termination of

representation). 198 S.W.3d at 584. Justice was retained by two clients to file

a civil case. Id. at 583. Although Justice filed suit, he failed to file a response

to the defendant ’ s motion to dismiss and failed to appear when that motion

was heard. Id. at 584. The case was dismissed with prejudice. Id. Justice did

not tell his clients about the dismissal. Id. This Court held that a thirty-day

suspension was appropriate. Id.

6In review of this Court ’ s precedent, we agree with the terms of the

parties ’ negotiated sanction. Howell is currently suspended until such a time

as she is approved for reinstatement by the Character and Fitness Committee

and this Court. The Committee may consider this current discipline when

making its recommendation regarding her reinstatement.

III. ORDER

Agreeing that the negotiated sanction is appropriate, it is ORDERED that:

1. Rachelle Nichole Howell ’ s motion for this Court to impose a thirty-day

suspension with conditions detailed above (including repaying Skaggs $425 for

unearned legal fees and continued participation in KYLAP), is accepted.

2. Rachelle Nichole Howell is suspended from the practice of law in

Kentucky for a period of thirty days for her professional misconduct as set

forth herein. The suspension shall be retroactive to March 14, 2019 and shall

continue until she has complied with the requirements of this opinion and

order and is reinstated to the practice of law by Order of this Court pursuant to

SCR 3.510.

2. During the pendency of her suspension, Howell shall continue her

monitoring agreement with KYLAP.

3. If she has not already done so, pursuant to SCR 3.390, Howell shall

immediately cancel any pending advertisements; shall terminate any

advertising activity for the duration of the term of suspension; and shall not

allow her name to be used by a law firm in any manner until she is reinstated.

74. Pursuant to SCR 3.390, Howell shall not, during the term of suspension

and until reinstatement, accept new clients or collect unearned fees.

5. In accordance with SCR 3.450, Howell is directed to pay the costs of this

action in the amount of $125.01 for which execution may issue from this Court

upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: September 26, 2019.

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