Attorney found in contempt, has license suspended

CHARLESTON – The state Supreme Court of Appeals has suspended the license of an attorney and found him in contempt.

The opinion against Michael F. Niggemyer of Whitehall was filed Tuesday per curium by the Justices.

"A lawyer's failure to comply with an order of this Court is a serious breach of his/her professional responsibility," the Justices wrote. "Mr. Niggemyer has not once, but twice, blatantly disregarded this Court's admonitions.

"While we appreciate Mr. Niggemyer's apparent attempts to comply with our orders by tendering documentary evidence on the day of the case's submission, such efforts have been half-hearted, untimely, and suggest desperate attempts to mitigate the damage that has already been done by his noncompliance.

"Accordingly, we are left with no other choice but to hold Mr. Niggemyer in contempt of this Court for his failure to comply with this Court's orders of May 11, 2005, and November 29, 2006, and we immediately and indefinitely suspend Mr. Niggemyer's license to practice law in this state until such time as he has demonstrated full compliance with said orders and our opinion herein.

"Such discipline is necessary not only to punish Mr. Niggemyer for his misconduct but also to deter other lawyers from engaging in similar behavior.

The state Office of Disciplinary Counsel had sought to have Niggemyer's license suspended on March 14, but the saga began three years ago.

In 2004, the Investigative Panel of the Lawyer Disciplinary Board charged Niggemyer with mishandling client funds. As a result, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board recommended to the Supreme Court that Niggemyer be disciplined.

The Court reprimanded Niggemyer in May 2005 for mishandling client funds and ordered him to complete 12 hours of classes in ethics and office management.

The Justices ordered him to submit quarterly statements of client receipts and disbursement of the funds to the Office of Disciplinary Counsel for two years. They ordered him to submit annual reports from an outside accountant to the Office of Disciplinary Counsel for two years. They ordered him to pay the costs of his disciplinary proceedings.

He took the classes but did not obey the other orders.

On the anniversary of the reprimand, the ODC asked the Justices to hold Niggemyer in contempt.

Instead, the Justices forgave his failure to comply and granted 60 more days for him to hire an accountant and pay for the proceedings.

On Nov. 29, 2006, the Justices retroactively granted an 18-month extension of an order requiring Niggemyer to straighten out his accounts. Then, they rejected a petition of the ODC to suspend his license.

"The Court grants this extension to the respondent as a matter of grace and strongly cautions the respondent against further non-compliance or untimely compliance with orders of this Court ...," the Justices wrote then.

But again, Niggemyer failed to make any effort to comply with the order.

On Feb. 16, 2007, the ODC again request that Niggemyer "be found in contempt of this . . . Court's Order and that his license to practice law be immediately suspended."

In support of its petition, the ODC cited Niggemyer's utter disregard of the court order and his continued failure to take any steps to comply. The ODC said Niggemyer had not employed a CPA to review his receipt and disbursement of clients' funds and to issue a report thereon and that he had not provided the ODC with "'an itemized account of all receipts from clients for the three month period immediately preceding Jan. 31, 2007,'" It also said he has failed to make any further payments as restitution for the costs incurred in his disciplinary proceedings.

On Feb. 28, the Court issued a rule to show cause why Niggemyer should not be held in contempt.

Before oral arguments on March 14, Niggemyer faxed a letter explaining his office finances as well as assorted documents to the ODC and the Court.

The ODC said the documents complied with the Court's order, but that without the required audit of Niggemyer's financial records by a CPA, the ODC could not state with certainty whether he had fully complied with that part of the Court's order.

Niggemyer responded that he had been trying to do so, but "conceded that he had not fully complied therewith."

On March 14, the Justices issued an order holding Niggemyer in contempt and suspending his license immediately. They asked Marion Circuit Judge Fred L. Fox II to appoint a trustee to protect the interests of Niggemyer's clients.

In Tuesday's opinion, the Justices noted that the Supreme Court "is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law."

They called Niggemyer's actions were in "blatant disregard of this Court's two prior orders."

Also, they said his attempt to comply with earlier orders "was marginal and very tardy."

And the Court also noted that it had given him another chance to comply last year.

"Yet again, however, Mr. Niggemyer blatantly disregarded this Court's order and refused to cooperate with the ODC's efforts to compel his compliance," the Justices wrote. "That is until the wee morning hours of the day on which this Court was scheduled to hear arguments in the instant matter when Mr. Niggemyer submitted, by facsimile, partial documentation in an apparent attempt to comply with the quarterly report requirement."

In short, they said they had had enough.

"Although we have been quite lenient with Mr. Niggemyer for his past transgressions, we simply cannot allow such flagrant disregard of and utter lack of respect for this Court's orders to continue or to go unnoticed," they wrote, citing previous opinions.

"This Court views compliance with its orders relating to the practice of law to be among a lawyer's highest professional responsibilities," a 1994 opinion said.

The Justices also say Niggemyer still is expected to comply with their two previous orders, only modifying the time frames in which he is expected to comply..

So, Niggemyer is required to employ a CPA to conduct an audit of his office accounting records; provide to the ODC written notice of the employment of a CPA within 60 days; furnish to the ODC, by the CPA, a copy of the CPA's report of Niggemyer's records for the one-year period ending April 30, 2006, within 60 days; furnish a copy of the CPA's report of an audit of Niggemyer's records for the one-year period ending April 30, 2007, within 60 days; submit to the ODC on or before March 30 an itemized account of all receipts from clients for the three-month period immediately preceding Jan. 31; submit on or before May 1 an itemized account of all receipts from clients for the three-month period immediately preceding April 30; and pay the ODC the costs of all disciplinary proceedings in the matter.