TO BE PUBLISHED
2019-SC-000089-KB
RACHELLE NICHOLE HOWELL
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 disciplinary 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
2 counts) 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.
3 Howell 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.
4 The 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 one-
hundred-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.
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TO BE PUBLISHED
2019-SC-000089-KB
RACHELLE NICHOLE HOWELL
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 disciplinary 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
2 counts) 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.
3 Howell 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.
4 The 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 one-
hundred-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
5 reinstated. 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.
6 In 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.
7 4. 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.