TO BE PUBLISHED
2018-SC-000438-KB
KENTUCKY BAR ASSOCIATION MUVA'NT
V. IN SUPREME COURT
RACHELLE NICHOLE HOWELL RESPONDENT
OPINION AND ORDER
Appellee, Rachelle Nichole 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. Her disciplinary record 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,1 and for improperly providing financial assistance to a client
for pending litigation. Finally, a private admonition with conditions was issued
1 Howell allowed herself to be a surety on a bail bond. 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.
Based on ten consolidated KBA files, the Board of Governors
unanimously recommends this Court find Howell guilty of violating SCR 3.130
1.3 (nine counts); 3.130-1.4(a)(3); 3.130-1.4(a)(4) (nine counts); 3.130-1.15(e);
3.130-1.16(d) (ten counts); and 3.130-8.1(b).
For these violations, the Board recommends this Court suspend Howell
for ninety days with an additional ninety-one days to be probated for a period
of two years with conditions. The recommended terms of Howell’s probation
are: (1) continuing her monitoring agreement with Kentucky Lawyers
Assistance Program (KYLAP); (2) obtaining, at her expense, at least three hours
of continuing legal education on topics relevant to law office management
within the next twelve months; (3) attending, at her expense, the next
scheduled Ethics and Professionalism Enhancement Program (EPEP); (4)
making restitution within the two-year period of her probation; and (5) paying
the costs associated with this proceeding in accordance with SCR 3.450. For
the following reasons, we agree with the Board that Howell committed the
following ethical violations, but reject the Board’s recommended sanction.
2 I. BACKGROUND
The current case spans ten consolidated KBA files. We will address each
in turn.
A. KBA File Number 16-DIS-24112 Habib Bousso paid Howell $1,500 to represent him in divorce
proceedings. Howell filed motions for a case management conference and fpr
the appointment of a mediator. However, she did not appear in court when the
motions were scheduled to be heard. Howell did not complete Bousso’s
representation, and her level of communication with opposing counsel and
Bousso in the divorce proceeding was lacking. When a bar complaint was filed,
Howell responded to Bar Counsel’s letter, claiming she had issued a partial
refund check to Bousso. Howell testified that she was not able to locate
Bousso’s file and that she did not recall obtaining a copy of the alleged refund
check. She further stated she did not recall responding to Bar Counsel’s letter
requesting information concerning her claim by indicating a partial refund had
been issued.
Ultimately, the Inquiry Commission issued a two-count charge, alleging
Howell had violated SCR 3.130(1.16)(d) (by failing to protect Bousso’s interests
by giving him reasonable notice and by failing to refund any unearned fee) and
3.130(8.1) (b) (by knowingly failing to respond to a lawful demand for
information from an admissions or disciplinary authority).
3 B. KBA File Number 16-DIS-24256
William Stogner hired Howell to seek the dismissal of criminal charges
and to have his record expunged of those charges. He paid Howell $500 for
this service. Howell obtained the dismissal, but failed to keep Stogner informed
and to complete the expungement process. Stogner had to obtain another
attorney for the expungement proceedings.
The Inquiry Commission filed a four-count charge against Howell related
to Stogner’s case, alleging Howell had violated: (1) SCR 3.130-1.3 (by failing to
act with reasonable diligence and promptness in representing Stogner); (2)
3.130-1.4(a)(3) (by failing to keep Stogner reasonably informed about the status
of his case); (3) 3.130-1.4(a)(4) (by failing to promptly comply with Stogner’s
reasonable requests for information); and (4) 3.130-1.16(d) (by failing to protect
Stogner’s interest by giving him reasonable notice, surrendering his file, and
returning any unearned fee).
C. KBA File Number 16-DIS-24286
John Rader II paid Howell a total of $1,400 to represent him in a divorce
matter. While Howell filed the Petition for Dissolution of Marriage and a Motion
to request a case management conference, she failed to communicate the
status of the matter to Rader. He was unable to reach Howell for three
months. Howell acknowledged that she did not complete the representation,
did not timely communicate with Rader, and failed to return his file. She
acknowledged she owes Rader $247, the unearned balance due from his
retainer.
4 In this file, the Inquiry Commission filed a three-count charge against
Howell, alleging she had violated: (1) SCR 3.130-1.3 (by failing to act with
reasonable diligence and promptness in representing Rader); (2) 3.130-1.4(a)(4)
(by failing to promptly comply with Rader’s reasonable requests for
information); and (3) 3.130-1.16(d) (by failing to protect Rader’s interests by
giving him reasonable notice, surrendering his file, and refunding any
unearned fee).
D. KBA File Number 16-DIS-24311
Walter Brennan hired Howell to represent him in a child custody and
child abuse case pending in juvenile court. He paid her a $1,500 retainer. The
juvenile court proceeding was successfully completed. However, Howell failed
to appear in three court proceedings. Brennan attempted to reach Howell by
phone and email to no avail. Howell refunded the retainer and admitted that
she failed to deposit Brennan’s advance-fee payment in her escrow account.
The Inquiry Commission filed a four-count charge against Howell,
alleging she had violated: (1) SCR 3.130-1.3 (by failing to act with reasonable
diligence and promptness in representing Brennan); (2) 3.130-1.4(a)(4) (by
failing to promptly comply with Brennan’s reasonable requests for information);
(3) 3.130-1.15(e) (by failing to deposit fees and expenses that had been paid in
advance into a client trust account); and (4) 3.130-1.16(d) (by failing to protect
Brennan’s interests by giving him reasonable notice and surrendering his file).
5 E. KBA File Number 16-DIS-24312
A third party (Kim Sills) paid $250 for Howell to represent Rickey
Crockett. Crockett asked Howell to assist him in stopping his estranged wife’s
harassing communications. After the harassment came to an end, Crockett
hired Howell to represent him in a divorce action. Howell performed various
services for Crockett regarding the divorce proceedings. She was paid $4,500
for these services. Shortly thereafter, Sills and Crockett were unable to reach
Howell by text messages, emails, or phone calls. Crockett terminated the
representation and asked Howell to provide an itemized statement. Howell
failed to provide said statement, and Sills filed a bar complaint. Howell then
prepared a billing statement which indicated a total fee of $1,550. Howell
agrees that Crockett is due a refund of $2,950 of the $4,500 retainer
Ultimately, the Inquiry Commission filed a three-count charge against
Howell related to Crockett’s case, alleging Howell had violated: (1) SCR 3.130-
1.3 (by failing to act with reasonable diligence and promptness in representing
Howell); (2) 3.130-1.4(a)(4) (by failing to promptly comply with Crockett’s
reasonable requests for information); and (3) 3.130-1.16(d) (by failing to protect
Crockett’s interest by giving him reasonable notice, surrendering his file, and
refunding unearned fee).
F. KBA File Number 16-DIS-24322 Jason Roberts paid Howell $2,000 to represent him in a divorce
proceeding. Howell made two court appearances on Roberts’s behalf.
However, she failed to appear for the third court date and after that, Roberts
6 was unable to reach her. Howell later appeared for the rescheduled hearing
date and acknowledged that she did not comply with the court’s instruction to
schedule a mediation. The court fined Roberts $350. Roberts then terminated
Howell’s representation. Roberts requested a refund of his retainer and Howell
did not comply. Roberts requested his file, which Howell provided eight or nine
months later.
Roberts sued Howell in Jefferson District Small Claims Court. Howell
neither appeared nor participated in the proceeding. Roberts then filed a bar
complaint, after which time Howell refunded the $2,000 retainer. Howell
admitted to her “problematic conduct” in connection with her representation of
Roberts.
The Inquiry Commissioner filed a three-count charge against Howell
related to his case, alleging Howell had violated: (1) SCR 3.130-1.3 (by failing to
act with reasonable diligence and promptness in representing Roberts); (2)
3.130-1.4(a)(4) (by failing to promptly comply with Roberts’s reasonable
requests for information); and (3) SCR 3.130-1.16(d) (by failing to protect
Roberts’s interests by giving him reasonable notice and surrendering his file).
G. KBA File Number 16-DIS-24323 Edward Harp retained Howell to represent him in a divorce proceeding.
Harp paid $500 of Howell’s retainer and a family member paid the remaining
$1,500. Howell filed a Petition for Dissolution for Harp. Harp later testified
that there were mistakes in the documents prepared by Howell and that little
was accomplished. Howell failed to appear at a scheduled case management
7 conference and Harp was unable to reach her through texts, emails, and social
media. Eventually, he requested his file and retained new counsel. The parties
agree that no refund is owed to Harp.
The Inquiry Commission filed a three-count charge against Howell
related to Harp’s case, alleging Howell had violated: (1) SCR 3.130-1.3 (by
failing to act with reasonable diligence and promptness in representing Harp);
(2) 3.130-1.4(a)(4) (by failing to promptly comply with Harp’s reasonable
requests for information); and (3) 3.130-1.16(d) (by failing to protect Harp’s
interests by giving him reasonable notice and surrendering his file).
H. KBA File Number 16-DIS-24375
Joseph Campbell paid Howell $1,500 to represent him in a divorce
proceeding. Howell admitted she was unable to provide representation to
Campbell. Further, she stated that she did not recall appearing in court for
him or otherwise communicating with him. She refunded Campbell’s retainer.
The Inquiry Commission filed a three-count charge against Howell
related to Campbell’s case, alleging Howell had violated: (1) SCR 3.130-1.3 (by
failing to act with reasonable diligence and promptness in representing
Campbell); (2) 3.130-1.4(a)(4) (by failing to promptly comply with Campbell’s
reasonable requests for information); and (3) 3.130-1.16(d) (by failing to protect
Campbell’s interests by giving him reasonable notice and surrendering his file).
I. KBA File Number 16-DIS-24376 Bradley Vaughn retained Howell to represent him regarding a domestic
violence petition filed by Vaughn’s wife, and then retained her to represent him
8 in a contemplated divorce proceeding. Howell was paid $2,000 for
representation of Vaughn in the divorce proceeding. After correspondence
between Vaughn and Howell to complete the Petition for Dissolution of
Marriage, Howell did not file the Petition. Vaughn was served with a Petition
for Dissolution filed by his wife. Vaughn then experienced difficulty reaching
Howell by email and text messages. Howell acknowledges that she is obligated
to refund Vaughn’s retainer.
The Inquiry Commission filed a three-count charge against Howell
related to Vaughn’s case, alleging Howell had violated: (1) SCR 3.130-1.3 (by
failing to act with reasonable diligence and promptness in representing
Vaughn); (2) 3.130-1.4(a)(4) (by failing to promptly comply with Vaughn’s
reasonable requests for information); and (3) 3.130-1.16(d) (by failing to protect
Vaughn’s interests by giving him reasonable notice, surrendering his file, and
refunding any unearned fee).
J. KBA File Number 16-DIS-24377
Kurt Pajel retained Howell to represent him in a divorce proceeding. A
$2,000 retainer was paid by a family member on Pajel’s behalf. Pajel was
unable to reach Howell with the exception of one text message from her.
Howell refunded the retainer.
Ultimately, the Inquiry Commission filed a three-count charge against
Howell, alleging she had violated: (1) SCR 3.130-1.3 (by failing to act with
reasonable diligence and promptness in representing Pajel); (2) 3.130-1.4(a)(4)
(by failing to promptly comply with Pajel’s reasonable requests for information);
9 and (3) 3.130-1.16(d) (by failing to protect Pajel’s interests by giving him
reasonable notice and surrendering his file).
Howell filed in forma pauperis affidavits pursuant to SCR 3.300 and was
appointed counsel for these proceedings. As noted, Howell has refunded
unearned retainers to four of her former clients.
II. ANALYSIS
Bar Counsel contends that the Trial Commissioner and Board erred in
their disciplinary recommendations. The Trial Commissioner recommended
that Howell be suspended for a period of one-hundred-and-eighty-one days,
with ninety days to serve and the remaining ninety-one days probated for a
period of two years upon the conditions that Howell: (1) continue her
monitoring agreement with KYLAP; (2) obtain, at her expense, at least three
CLE hours on law office management within twelve months of an order from
this Court; (3) attend, at her expense, the next scheduled EPEP; and (4) make
restitution in the amount of $1,500 to Bousso, $500 to Stogner, $247 to Rader,
$2,950 to Crockett, and $2,000 to Vaughn, plus interest thereon at the rate of
six percent per annum, calculated from July 1, 2016, to be paid within the
two-year period of her probation.
The Board adopted the entirety of the Trial Commissioner’s
recommendation, with the exception of the court costs. The Trial
Commissioner recommended Howell pay the costs associated with this
proceeding in accordance with SCR 3.450. The Board stated in its opinion that
as Howell proceeded in forma pauperis, this Court should determine whether
10 said costs should be assessed against and paid by Howell, as required by SCR
3.450.
Bar Counsel contends that the Trial Commissioner and Board erred in
determining that Howell should be suspended for a period of one-hundred-and
eighty-one days, with ninety days to serve and the remaining ninety-one days
probated for a period of two years upon conditions. We note that findings of
fact by trial commissioners and the Board are merely advisory to this Court.
SCR 3.360; Kentucky Bar Association v. Jones, 759 S.W.2d 61, 63 (Ky. 1988).
“Final decisions of guilt and punishment can only be made by the Supreme
Court, and it is done on the basis of a de novo consideration of pleadings and
trial review.” Kentucky Bar Association v. Jacobs, 387 S.W.3d 332, 337 (Ky.
2012) (quoting Jones, 759 S.W.2d at 63-64)). We now exercise this authority
and disagree with the Board that its recommended sanction is adequate.
Bar Counsel argues that this recommended sanction adopted by the
Board is not supported by substantial evidence and is clearly erroneous as a
matter of law as required by SCR 3.370(5)(a)(l). It further contends that the
suspension, which permits automatic reinstatement, unduly depreciates the
seriousness of Howell’s misconduct. We agree.
In mitigation, the Board considered testimony Howell offered as to her
good character. Howell also offered testimony as to her struggles with anxiety,
depression and alcohol addiction. Furthermore, she contended her gastric
surgery and relationship issues played a role in her misconduct. We are not
11 persuaded that these factors merit a lesser sanction for Howell’s numerous
acts of misconduct.
In Kentucky Bar Ass'n v. Thornton, 392 S.W.3d 399 (Ky. 2013), this Court
suspended Thornton from the practice of law for one hundred and eighty-one
days to be continued until reinstatement pursuant to SCR 3.510. Amongst
other charges, Thornton was found to have failed to provide competent
representation, failed to act with reasonable diligence and promptness, and
failed to keep a client reasonably informed about the status of the claim. In
contrast to Howell’s ten consolidated charges and thirty-one counts, Thornton
addressed three charges and fourteen counts.2
In light of this Court’s precedent, Howell’s previous admonitions, and the
current charges, we believe her reinstatement to practice law in the
Commonwealth must be contingent upon the approval of the Character and
Fitness Committee. Therefore, it is ordered that Howell shall be suspended for
a period of one hundred and eighty-one days and said suspension shall
continue until such time as she is reinstated to the practice of law by order of
this Court pursuant to SCR 3.510.3
Kentucky Supreme Court Rule 3.510(3) states:
If the period of suspension has prevailed for more than 180 days, the matter shall be referred to the Character and Fitness Committee for proceedings under SCR 2.300. The Character and
2 Thornton was found guilty of ten of these counts. 3 SCR 3.510(1) states, in part, that “[n]o former member of the [Kentucky Bar] Association who has been suspended for a disciplinary case for more than one hundred eighty (180) days shall resume practice until he/she is reinstated by order of the Court.”
12 Fitness Committee will determine whether the application of a member who has been suspended 180 days or less but whose termination of suspension has been objected to, or a member who has been suspended for more than 180 days, should be approved. The Character and Fitness Committee shall file with the Director and the Clerk the entire record, including a written report and recommendation by the Character and Fitness Committee. Thirty days after the filing of the report, Bar Counsel and the applicant may each file briefs, not to exceed 30 pages in length. No further briefs may be filed. Upon motion of the parties or upon the Board's own motion, oral arguments may be scheduled before the Board. The Board shall review the record, report and briefs and recommend approval or disapproval of the application to the Court. The Court may enter an order reinstating the Applicant to the practice of law or deny the application.
Furthermore, Howell filed in forma pauperis affidavits pursuant to SCR
3.300 and was appointed counsel. The Trial Commissioner recommended
Howell pay the costs associated with this proceeding in accordance with SCR
3.450. However, the Board did not adopt this recommendation and stated that
this Court should determine whether the costs of this proceeding ($6,725.93)
should be assessed against and paid by Howell as she proceeded in forma
pauperis.
As required by SCR 3.450:
2) Every final order of the Court which adjudges the Respondent guilty of unprofessional conduct shall provide for the recovery of costs, which shall include the costs and expenses that a prevailing party in a civil action may recover pursuant to CR 54.04, and such other costs, including postage, certified mailing fees, service of process fees, and videographer charges, as may be ordered by the Supreme Court.
(Emphasis added).
“In common or ordinary parlance, and in its ordinary signification, the
term ‘shall’ is a word of command and . . . must be given a compulsory
13 meaning.” Black's Law Dictionary 1233 (5th ed. 1979). This Court held in
Roberts v. Kentucky BarAss'n, “[t]he word ‘shall,’ of course, denotes a
mandate.” 531 S.W.3d 15, 18 (Ky. 2017).
Therefore, the Board was mistaken when it stated that this Court should
determine whether said costs should be assessed against and paid by Howell.
We hold that Howell shall pay the costs of this proceeding.
III. CONCLUSION The recommended one-hundred-eighty-one-day suspension, with ninety
days to serve and ninety-one days probated for a period of two years, with
conditions, is inadequate. Howell is suspended from the practice of law for one
hundred and eighty-one days and this suspension shall continue until such
time as she is reinstated.
IV.ORDER
Therefore, it is ordered:
1. Appellee, Rachelle Nichole Howell, is suspended from the practice of
law in Kentucky for a period of one-hundred-eighty-one days for her
professional misconduct as set forth herein. The suspension shall
commence on the date of entry of this order and shall continue until
such time as she 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.
14 3. Before seeking reinstatement to the practice of law, Howell shall
obtain, at her expense, at least three hours of continuing legal
education on topics relevant to law office management, she shall also
attend, at her expense, the next scheduled (EPEP).
4. Howell shall immediately make refunds in the amount of $1,500 to
Bousso, $500 to Stogner, $247 to Rader, $2,950 to Crockett, and
$2,000 to Vaughn, plus interest thereon at the rate of six percent per
annum, calculated from and after July 1, 2016.
5. If she has not already done so, pursuant to SCR 3.390, Howell shall
promptly take all reasonable steps to protect the interests of her
clients, including, within ten days after the issuance of this order,
notifying by letter all clients of her inability to represent them and of
the necessity and urgency of promptly retaining new counsel and
notifying all courts or other tribunals in which Howell has matters
pending. Howell shall simultaneously provide a copy of all such
letters to the Office of Bar Counsel.
6. 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.
15 7. Pursuant to SCR 3.390, Howell shall not, during the term of
suspension and until reinstatement, accept new clients or collect
unearned fees.
8. In accordance with SCR 3.450, Howell is directed to pay the costs of
this action in the amount of $6,725.93 for which execution may issue
from this Court upon finality of this Opinion and Order.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting
All concur.
ENTERED: March 14, 2019.