2020-SC-000072-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
MARK PATRICK NIEMI RESPONDENT
OPINION AND ORDER
Mark Patrick Niemi, Kentucky Bar Association (KBA) Number 87573, was
admitted to the practice of law in the Commonwealth of Kentucky on October
20, 1998, and his bar roster address is listed as 33318 Coldstream Drive,
Lexington, Kentucky, 40514. The Board of Governors recommends this Court
find Niemi guilty of violating SCR 3.130-3.4(c), 5.5(a), 5.5(b)(2), and 8.1(b). For
these violations, the Board voted 17-0 to recommend Niemi be suspended from
the practice of law for 181 days to run consecutively to all current suspensions,
directed to successfully complete the Ethics and Professionalism Enhancement
Program (EPEP), and ordered to pay all associated costs. For the following
reasons, we adopt the Board’s recommendation. I. BACKGROUND
Niemi did not participate in the underlying proceedings; therefore, the
matter is before this Court as a default case pursuant to SCR 3.210. Niemi
failed to comply with continuing legal education requirements for the 2009-
2010 educational year and was suspended on that basis in 2011. ,Niemi never
sought reinstatement to the practice of law following that suspension. In spite
of the suspension, in October 2018, Niemi sent a letter on letterhead reading
“Mark Niemi Law Offices, P.S.C.” In the letter, written to World of Beer, Niemi
stated, “I represent Local Trivia Action in connection with their contract to
provide trivia services to World of Beer.” Niemi claimed his client was “entitled
to $500.00 in trivia show fees following the World of Beer’s cancellation of [the]
agreement.” Niemi asked World of Beer to contact him “to discuss a solution to
this matter short of going to court.” The KBA’s Board of Governors also pointed
out in its findings of fact that Niemi held himself out to be engaged in the
practice of law on both his Facebook and LinkedIn pages.
In January 2019, the Office of Bar Counsel mailed a bar complaint via
certified mail to Niemi’s bar roster address of 33318 Coldstream Drive. The
complaint was returned undelivered a month later. Following unsuccessful
delivery at Niemi’s bar roster address and further investigation, the Office of
Bar Counsel discovered that Niemi’s bar roster address was invalid. Office of
Bar Counsel (through the United States Postal Service, Fayette County Sheriffs
Department, and the Fayette County Property Valuation Administrator’s office)
determined that Niemi’s correct address was actually 3318 (rather than 33318)
2 Coldstream Drive. As the Board noted, it appears that the postal service had
also discovered Niemi’s correct address and attempted delivery there, but was
unsuccessful.
In April 2019, the Office of Bar Counsel transmitted the bar complaint to
the Fayette County Sheriff’s Office to attempt personal service on Niemi at his
correct address. After twelve unsuccessful delivery attempts, the complaint
was returned undelivered. Finally, in May 2019, Niemi was served with the
complaint through service upon the KBA Executive Director pursuant to SCR
3.035(2).
The Inquiry Commission issued a four-count charge against Niemi in
June 2019. The Disciplinary Clerk attempted service on Niemi at his correct
address, but it was returned undelivered a month later. The Fayette County
Sheriff’s Office then attempted to personally serve Niemi on fourteen occasions
but was unsuccessful. The Sheriff’s Office returned the charge in September
2019, and service was completed upon the Executive Director pursuant to SCR
The Inquiry Commission’s charge asserted Niemi violated:
Count I: SCR 3.130(3.4)(c): “A lawyer shall not. . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”
Count II: SCR 3.130(5.5)(a): “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”
Count III: SCR 3.130(5.5)(b)(2): “A lawyer who is not admitted to practice in this jurisdiction shall not. . . hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” 3 Count IV: SCR 3.130(8. l)(b): “[A] lawyer in connection with ... a disciplinary matter, shall not. . . knowingly fail to respond to a lawful demand for information from an administrative or disciplinary authority, except that this Rule does not require disclosures of information otherwise protected by Rule 1.6.”
II. BOARD’S RECOMMENDATION
The Board voted unanimously (17-0) to find Niemi guilty as to Counts I,
II, and IV. It found Niemi guilty on Count III by a vote of 11-6. The Board
considered Niemi’s prior disciplinary history in determining its recommended
sanction in this matter. Niemi’s prior discipline includes the suspension still in
effect for failure to comply with CLE requirements for the 2009-2010
educational year. Niemi also received a thirty-day suspension (to run
consecutively to the CLE suspension) for violating SCR 3.130-1.4(a), 1.16(d),
and 8.1(b). That sanction also included a requirement for Niemi to complete
EPEP. When Niemi had not completed EPEP in the given time, Niemi was
privately admonished after being found to have violated this Court’s order for
“failing to attend and complete [EPEP], failing to pay the costs of the
disciplinary case, and . . . continuing to practice law following his
administrative and disciplinary suspensions.”
After considering Niemi’s disciplinary history, the Board voted
unanimously to recommend Niemi be suspended from the practice of law for
181 days, to run consecutively to any current suspensions, that he be required
to successfully complete EPEP prior to reinstatement, and that he pay the
costs of this disciplinary action.
4 III. ANALYSIS
The current case comes before this Court upon the filing of the Findings
of Fact, Conclusions of Law, and Recommendation of the Board of Governors.
Pursuant to SCR 3.370(7), after the Board of Governors files its decision with
the Disciplinary Clerk, either Bar Counsel or the Respondent may file a Notice
for the Court to review the case. If no notice of review is filed by either party
(as is the case here), this Court has two options: 1) under SCR 3.370(8), we
may inform Bar Counsel and Respondent that we will review the decision and
thus order them to file briefs; or 2) under SCR 3.370(9) we may enter an order
adopting the decision of the Board. Based on our precedent, we adopt the
decision of the Board pursuant to SCR 3.370(9).
As to Count I of the Inquiry Commission charge, we agree that Niemi
violated SCR 3.130-3.4(c) when he knowingly disobeyed this Court’s orders.
We also agree that Niemi violated SCR 3.130-5.5(a) when he practiced law
while he was suspended from the practice of law in the Commonwealth of
Kentucky. As to Count III, we agree with the majority of the Board’s voting
members and find Niemi violated SCR 3.130-5.5(b)(2) when he held out to the
public that he was admitted to the practice of law in Kentucky through use of
his letterhead and the content of his Facebook and LinkedIn profile pages.
Finally, we agree with the Board’s findings as to Count IV. Niemi violated SCR
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2020-SC-000072-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
MARK PATRICK NIEMI RESPONDENT
OPINION AND ORDER
Mark Patrick Niemi, Kentucky Bar Association (KBA) Number 87573, was
admitted to the practice of law in the Commonwealth of Kentucky on October
20, 1998, and his bar roster address is listed as 33318 Coldstream Drive,
Lexington, Kentucky, 40514. The Board of Governors recommends this Court
find Niemi guilty of violating SCR 3.130-3.4(c), 5.5(a), 5.5(b)(2), and 8.1(b). For
these violations, the Board voted 17-0 to recommend Niemi be suspended from
the practice of law for 181 days to run consecutively to all current suspensions,
directed to successfully complete the Ethics and Professionalism Enhancement
Program (EPEP), and ordered to pay all associated costs. For the following
reasons, we adopt the Board’s recommendation. I. BACKGROUND
Niemi did not participate in the underlying proceedings; therefore, the
matter is before this Court as a default case pursuant to SCR 3.210. Niemi
failed to comply with continuing legal education requirements for the 2009-
2010 educational year and was suspended on that basis in 2011. ,Niemi never
sought reinstatement to the practice of law following that suspension. In spite
of the suspension, in October 2018, Niemi sent a letter on letterhead reading
“Mark Niemi Law Offices, P.S.C.” In the letter, written to World of Beer, Niemi
stated, “I represent Local Trivia Action in connection with their contract to
provide trivia services to World of Beer.” Niemi claimed his client was “entitled
to $500.00 in trivia show fees following the World of Beer’s cancellation of [the]
agreement.” Niemi asked World of Beer to contact him “to discuss a solution to
this matter short of going to court.” The KBA’s Board of Governors also pointed
out in its findings of fact that Niemi held himself out to be engaged in the
practice of law on both his Facebook and LinkedIn pages.
In January 2019, the Office of Bar Counsel mailed a bar complaint via
certified mail to Niemi’s bar roster address of 33318 Coldstream Drive. The
complaint was returned undelivered a month later. Following unsuccessful
delivery at Niemi’s bar roster address and further investigation, the Office of
Bar Counsel discovered that Niemi’s bar roster address was invalid. Office of
Bar Counsel (through the United States Postal Service, Fayette County Sheriffs
Department, and the Fayette County Property Valuation Administrator’s office)
determined that Niemi’s correct address was actually 3318 (rather than 33318)
2 Coldstream Drive. As the Board noted, it appears that the postal service had
also discovered Niemi’s correct address and attempted delivery there, but was
unsuccessful.
In April 2019, the Office of Bar Counsel transmitted the bar complaint to
the Fayette County Sheriff’s Office to attempt personal service on Niemi at his
correct address. After twelve unsuccessful delivery attempts, the complaint
was returned undelivered. Finally, in May 2019, Niemi was served with the
complaint through service upon the KBA Executive Director pursuant to SCR
3.035(2).
The Inquiry Commission issued a four-count charge against Niemi in
June 2019. The Disciplinary Clerk attempted service on Niemi at his correct
address, but it was returned undelivered a month later. The Fayette County
Sheriff’s Office then attempted to personally serve Niemi on fourteen occasions
but was unsuccessful. The Sheriff’s Office returned the charge in September
2019, and service was completed upon the Executive Director pursuant to SCR
The Inquiry Commission’s charge asserted Niemi violated:
Count I: SCR 3.130(3.4)(c): “A lawyer shall not. . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”
Count II: SCR 3.130(5.5)(a): “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”
Count III: SCR 3.130(5.5)(b)(2): “A lawyer who is not admitted to practice in this jurisdiction shall not. . . hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” 3 Count IV: SCR 3.130(8. l)(b): “[A] lawyer in connection with ... a disciplinary matter, shall not. . . knowingly fail to respond to a lawful demand for information from an administrative or disciplinary authority, except that this Rule does not require disclosures of information otherwise protected by Rule 1.6.”
II. BOARD’S RECOMMENDATION
The Board voted unanimously (17-0) to find Niemi guilty as to Counts I,
II, and IV. It found Niemi guilty on Count III by a vote of 11-6. The Board
considered Niemi’s prior disciplinary history in determining its recommended
sanction in this matter. Niemi’s prior discipline includes the suspension still in
effect for failure to comply with CLE requirements for the 2009-2010
educational year. Niemi also received a thirty-day suspension (to run
consecutively to the CLE suspension) for violating SCR 3.130-1.4(a), 1.16(d),
and 8.1(b). That sanction also included a requirement for Niemi to complete
EPEP. When Niemi had not completed EPEP in the given time, Niemi was
privately admonished after being found to have violated this Court’s order for
“failing to attend and complete [EPEP], failing to pay the costs of the
disciplinary case, and . . . continuing to practice law following his
administrative and disciplinary suspensions.”
After considering Niemi’s disciplinary history, the Board voted
unanimously to recommend Niemi be suspended from the practice of law for
181 days, to run consecutively to any current suspensions, that he be required
to successfully complete EPEP prior to reinstatement, and that he pay the
costs of this disciplinary action.
4 III. ANALYSIS
The current case comes before this Court upon the filing of the Findings
of Fact, Conclusions of Law, and Recommendation of the Board of Governors.
Pursuant to SCR 3.370(7), after the Board of Governors files its decision with
the Disciplinary Clerk, either Bar Counsel or the Respondent may file a Notice
for the Court to review the case. If no notice of review is filed by either party
(as is the case here), this Court has two options: 1) under SCR 3.370(8), we
may inform Bar Counsel and Respondent that we will review the decision and
thus order them to file briefs; or 2) under SCR 3.370(9) we may enter an order
adopting the decision of the Board. Based on our precedent, we adopt the
decision of the Board pursuant to SCR 3.370(9).
As to Count I of the Inquiry Commission charge, we agree that Niemi
violated SCR 3.130-3.4(c) when he knowingly disobeyed this Court’s orders.
We also agree that Niemi violated SCR 3.130-5.5(a) when he practiced law
while he was suspended from the practice of law in the Commonwealth of
Kentucky. As to Count III, we agree with the majority of the Board’s voting
members and find Niemi violated SCR 3.130-5.5(b)(2) when he held out to the
public that he was admitted to the practice of law in Kentucky through use of
his letterhead and the content of his Facebook and LinkedIn profile pages.
Finally, we agree with the Board’s findings as to Count IV. Niemi violated SCR
3.130-8.1(b) when he failed to participate in the disciplinary process in the
current case.
5 We also agree that the Board’s recommended sanction of a 181-day
suspension from the practice of law to run consecutively to any current
suspensions, requirement to successfully complete EPEP, and order to pay the
costs associated with these proceedings is appropriate and in line with our
precedent. For example, in Kentucky BarAss’n v. Thornsberry, 414 S.W.3d
408 (Ky. 2013), we suspended Thornsberry from the practice of law for 181
days. We had previously suspended Thornsberry from the practice of law for
failing to pay his bar dues, but he continued to practice law by writing
opposing counsel on his law office’s letterhead, emailing a status update
regarding discovery to opposing counsel, participating in depositions, and filing
a motion with a court. Thornsberry had also failed to update his bar roster
address.
In another case, Kentucky BarAss’n v. Curtis, 437 S.W.3d 716 (Ky.
2014), we suspended Curtis for 181 days. Curtis had, like Niemi, been
suspended for failing to comply with CLE requirements. In spite of his
suspension, Curtis continued to file re-docketing request forms with district
court. Also like Niemi, Curtis failed to respond to the disciplinary complaint
and formal charge against him, failed to reside at his bar roster address, and
falsely held himself out to the public as being licensed to practice law.
6 IV. ORDER
Agreeing that the Board’s recommended sanction is appropriate, it is
ORDERED that:
1. Mark Patrick Niemi is found guilty of violating SCR 3.130-3.4(c), SCR
3.130-5.5(a), SCR 3.130-5.5(b)(2), and SCR 3.130-8.1(b); and
2. Niemi is suspended from the practice of law in the Commonwealth of
Kentucky for 181 days. The suspension imposed by this order shall
be served consecutive to any other suspensions; and
3. Niemi is ordered to attend, at his expense, the next scheduled Ethics
and Professionalism Enhancement Program (EPEP) offered by the
Office of Bar Counsel, separate and apart from his fulfillment of any
continuing legal education (CLE) requirement, within twelve months
after the issuance of this Order; Niemi must pass the test given at the
end of the program and will not apply for CLE credit of any kind for
his participation in the EPEP program; and Niemi will furnish a
release and waiver to the Office of Bar Counsel to review his records of
the CLE Department that might otherwise be confidential, such
release to continue in effect until after he completes his remedial
education; and
4. Pursuant to SCR 3.390, Niemi shall, within ten days from the entry of
this Opinion and Order, notify all Kentucky clients, in writing, of his
inability to represent them; notify, in writing, all Kentucky courts in
which he has matters pending of his suspension from the practice of
7 law; and furnish copies of all letters of notice to the Office of Bar
Counsel of the KBA. Furthermore, to the extent possible, Niemi shall
immediately cancel and cease any advertising activities in which he is
engaged; and
5. In accordance with SCR 3.450, Niemi is directed to pay all costs
associated with these disciplinary proceedings against him, said sum
being $376.80, for which execution may issue from this Court upon
finality of this Opinion and Order.
All sitting. All concur.