Opinion
2020-SC-0425-KB
01-21-2021
Shameka Lynn O'NEIL, Movant v. KENTUCKY BAR ASSOCIATION, Respondent
OPINION AND ORDER
Pursuant to Supreme Court Rule (SCR) 3.480(2), Movant, Shameka Lynn O'Neil, moves this Court to enter a negotiated sanction resolving the pending disciplinary proceeding against her (KBA File No. 19-DIS-0425) by imposing a public reprimand with conditions. The Kentucky Bar Association has no objection. Finding this sanction adequate, we grant O'Neil's motion.
O'Neil was admitted to the practice of law in the Commonwealth of Kentucky on October 19, 2017. Her KBA number is 95090, and her current bar roster address is 1229 Shelby Street, Louisville, Kentucky 40203.
I. BACKGROUND
Shalonda Meaux hired O'Neil to represent her in a racial discrimination claim against the Kentucky Department of Revenue, where Meaux worked as a revenue program officer. The engagement agreement the parties signed provides: "Client hereby engages Attorney to represent her state court lawsuit—racial discrimination hiring preference." The agreement references a nonrefundable retainer of $1,850. It later refers to the $1,850 as a "flat fee." The agreement also provides that O'Neil's rate is $150/hour and that Meaux may be required to "replenish" her engagement fee by making additional payments.
Meaux paid O'Neil $1,900, which included the filing fee for her case. O'Neil filed Meaux's verified complaint in Jefferson Circuit Court against the Kentucky Department of Revenue and the manager of her department. However, O'Neil failed to serve either the attorney general or assistant attorney general, as required by CR 4.04. Building on these errors, O'Neil also filed the suit in the wrong forum, as the claim should have been filed with the Kentucky Claims Commission. Defendants’ counsel filed a motion to dismiss the case on the grounds of insufficiency of service of process, lack of subject matter jurisdiction, failure to state a claim upon which relief could be granted, and improper venue. When O'Neil failed to appear at the hearing on the motions, the Jefferson Circuit Court continued the matter and gave O'Neil additional time to respond. The court also noted that O'Neil had yet to cure the service of process errors.
O'Neil again failed to respond to the various motions or appear at the hearing and the matter was submitted for final adjudication, with the court dismissing the case with prejudice. More than a week later, O'Neil filed a motion stating she had been out of town when the motions were filed and served by mail. In the motion, she asked the trial court to alter, amend, or vacate its order dismissing the case with prejudice and alleged she had cured the service defects. The trial court altered its order and dismissed the case without prejudice due to a lack of subject matter jurisdiction. O'Neil failed to communicate the case's dismissal to Meaux. In fact, Meaux did not learn her case had been dismissed until she consulted another attorney who, in turn, called O'Neil to check on the status of Meaux's case. O'Neil then informed Meaux she could no longer represent her, as the action would have to be filed in Frankfort. O'Neil took no further action in Meaux's case.
O'Neil sent Meaux an invoice indicating she spent 16 hours on her case at the rate of $150 per hour, for a total of $2,400, of which Meaux had paid $1,900. A significant portion of the time was devoted to O'Neil's attempts to overcome the motion to dismiss, which she was unable to do. O'Neil did not return any of the $1,900 Meaux paid her. The engagement agreement, at least in one place, referred to Meaux's payment as a "flat fee," but then the invoice indicated she owed an additional $500. O'Neil charged this fee in spite of the fact that none of O'Neil's time benefited Meaux in the least—due largely to O'Neil's lack of preparation and research on the case and her lack of diligence in the case and the dearth of communication with her client.
Based on O'Neil's actions (and inactions) in Meaux's case, the Inquiry Commission filed a five-count charge against her. The charge alleged O'Neil violated SCR 3.130 -1.1 (competence), SCR 3.130 -1.3 (diligence), SCR 3.130 -1.4(a)(3) (keeping client reasonably informed), SCR 3.130 -1.5(a) (unreasonable fee), and SCR 3.130 -1.5(b) (communication with client regarding fee). O'Neil admits she violated these rules, attempting to draw this matter to a close through the parties’ agreed-upon negotiated sanction of a public reprimand and O'Neil refunding $1,900 to Meaux within thirty days.
II. ANALYSIS
This Court's precedent supports the sanction agreed upon by the parties. For example, in Lutes v. Kentucky Bar Ass'n , 338 S.W.3d 278 (Ky. 2011), the attorney failed to work on a case and failed to communicate with his clients. 338 S.W.3d at 278. Lutes refunded his client's fee after a bar complaint was filed against him. Id. He admitted to violating SCR 3.130 (1.3) (failing to exercise reasonable diligence and promptness in dealing with a client), (1.4)(a) (failing to keep his client reasonably informed about the representation and failing to respond to reasonable requests for information), (1.15)(a) (failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property), (1.15)(b) (failing to notify the client upon receiving funds or other property in which a client has an interest), and (1.16)(d) (failing to return the case file after the termination of representation). Id. at 279. The sanction in the Lutes case was a public reprimand with the condition that he attend an Ethics and Professionalism Enhancement Program (EPEP). Id. Lutes had a disciplinary record consisting of one private admonition in 2009 for similar wrongdoing, and an ongoing suspension for failing to pay bar dues. Id.
In Riley v. Kentucky Bar Ass'n , 262 S.W.3d 203 (Ky. 2008), the attorney failed to communicate or return the client's phone calls about the progress of her uncontested divorce. 262 S.W.3d 203. He terminated his representation without contacting his client or refunding the advance fee. Id. Similar to Lutes, Riley had previously received a private reprimand for violating SCR 3.130 (1.3) (failing to exercise reasonable diligence and promptness in dealing with a client) and (1.4)(a) (failing to keep his client reasonably informed about the representation and failing to respond to reasonable requests for information). He admitted violations in the current case of SCR 3.130 (1.3), (1.4)(a), and (1.16)(d) (failing to return the case file after the termination of representation). Id. This Court publicly reprimanded Riley.
We acknowledge that O'Neil has no prior disciplinary history unlike Lutes and Riley. However, we note the extent of her misconduct in Meaux's case. O'Neil charged Meaux $1,900 and then filed her case in a court lacking jurisdiction. O'Neil failed to inform Meaux the defendants had filed a motion to dismiss—let alone that the trial court granted the motion and dismissed her case with prejudice (and then, later, without prejudice). Meaux did not discover the status of her case until she had another lawyer contact O'Neil to inquire about it. Then, O'Neil dropped Meaux as a client, telling her she could no longer prosecute the claim, as it needed to be filed in Frankfort. Finally, O'Neil sent Meaux an invoice showing that she still owed $500 for representation, as Meaux had previously paid $1,900 and O'Neil worked on her case for 16 hours at the rate of $150 per hour (only to have the case dismissed as she filed in a court lacking jurisdiction). We also note that this case is distinguished from Lutes in that Lutes returned his client's fee upon the filing of a bar complaint. O'Neil has yet to do so, though she now agrees to repay the entire fee.
For the foregoing reasons, we accept this negotiated sanction and publicly reprimand O'Neil, with conditions.
III. ORDER
ACCORDINGLY, IT IS ORDERED THAT:
1. Shameka Lynn O'Neil is publicly reprimanded.
2. O'Neil shall repay Meaux $1,900 within thirty days of the entry of this order; if she fails to do so, this Court may convert the public reprimand to a thirty-day suspension from the practice of law.
3. In accordance with SCR 3.450, O'Neil shall pay all costs associated with these disciplinary proceedings against her. Execution may issue from this Court upon finality of this Opinion and Order.
/s/ John D. Minton, Jr.
CHIEF JUSTICE
All sitting. All concur.