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In re Nwakanma

Supreme Court of Kansas

July 7, 2017

In the Matter of Uchechi Okechukwu Nwakanma, Respondent.

         ORIGINAL PROCEEDING IN DISCIPLINE Disbarment.

          Stanton A. Hazlett, Disciplinary Administrator, argued the cause and was on the formal complaints for the petitioner.

          Respondent did not appear.

          Per Curiam:

         This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Uchechi Okechukwu Nwakanma, of Houston, Texas, an attorney admitted to the practice of law in Kansas in 2003.

         On October 1, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on October 23, 2013. On February 3, 2016, the Disciplinary Administrator filed an amended formal complaint. After filing a motion for extension of time to file an answer, which was granted by the panel on February 25, 2016, respondent filed an amended answer on March 25 and 28, 2016. Upon motion granted June 27, 2016, the Disciplinary Administrator amended the formal complaint to add an allegation that the respondent violated KRPC 3.4 (2017 Kan. S.Ct. R. 345).

          A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on July 25-29, 2016, where the respondent appeared in person without counsel. Because the respondent possesses a Kansas license, the hearing panel analyzed both Kansas and Texas rules as they relate to the respondent's misconduct. The hearing panel determined that respondent violated Texas Disciplinary Rules of Professional Conduct: 1.01 (competence and diligence); 1.03 (communication); 1.04 (fees); 1.14 (safekeeping property); 1.15 (declining or terminating representation); 3.04 (fairness in adjudicatory proceedings); 8.01 (bar admission, reinstatement, and disciplinary matters); and 8.04 (misconduct) and the following Kansas Rules of Professional Conduct: 1.1 (2017 Kan. S.Ct. R. 287) (competence); 1.3 (2017 Kan. S.Ct. R. 290) (diligence); 1.4 (2017 Kan. S.Ct. R. 291) (communication); 1.5 (2017 Kan. S.Ct. R. 292) (fees); 1.15 (2017 Kan. S.Ct. R. 326) (safekeeping of property); 1.16 (2017 Kan. S.Ct. R. 331) (termination of representation); 3.4 (2017 Kan. S.Ct. R. 345) (fairness to opposing party and counsel); 8.1 (2017 Kan. S.Ct. R. 377) (bar admission and disciplinary matters); 8.4 (2017 Kan. S.Ct. R. 379) (misconduct); and Kansas Supreme Court Rule 207 (2017 Kan. S.Ct. R. 246) (cooperation).

         Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact
. . . .
"License History
"43. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on September 26, 2003. The respondent's license to practice law in Kansas has been suspended for failing to comply with the annual requirements on six occasions:
a. On October 8, 2008, the Court entered an order suspending the respondent's license to practice law for failing to pay the attorney registration fee and continuing legal education fee. The Court reinstated the respondent's license to practice law on October 22, 2008.
b. On October 6, 2009, the Court entered an order suspending the respondent's license to practice law for failing to pay the continuing legal education fee. On January 14, 2010, the Court reinstated the respondent's license to practice law.
c. On October 18, 2010, the Court entered an order suspending the respondent's license to practice law for failing to pay the continuing legal education fee. The Court reinstated the respondent's license to practice law on October 25, 2010.
d. On September 14, 2012, the Court entered an order suspending the respondent's license to practice law for failing to fulfill the annual continuing legal education requirements. On December 18, 2012, the Court reinstated the respondent's license to practice law.
e. On October 6, 2015, the Court suspended the respondent's license to practice law for failing to pay the attorney registration fee and the continuing legal education fee. The Court issued an order reinstating the respondent's license to practice law on December 18, 2015. However, the check that the respondent provided to pay the attorney registration fee and late fees was returned for insufficient funds. Additionally, the check that the respondent provided to pay the continuing legal education fee and late fee was also returned for insufficient funds. During the hearing, the respondent blamed his nonlawyer assistant for the suspensions and the submission of bad checks. Shortly after the amended formal complaint was filed on February 3, 2016, the respondent provided funds to cover the bad checks.
f. On October 6, 2016, the Court suspended the respondent's license to practice law for failing to pay the annual attorney registration fee, for failing to comply with the annual continuing legal education requirements, and for failing to pay the annual continuing legal education fee. As of this writing, the respondent's license remains suspended.
"44. While the respondent was licensed to practice law in Kansas, he has never practiced law in Kansas. The respondent's practice has been exclusively in Houston, Texas.
"45. The respondent has never been licensed to practice law in the state courts of Texas. The respondent took and failed the Texas bar examination 'about two times.'
"46. Based upon his Kansas license, the respondent was admitted to practice in the United States District Court for the District of Kansas, the United States immigration courts, the United States District Court for the Southern District of Texas, and the United States Court of Appeals for the Fifth Circuit. The current status of the respondent's license to practice law in every jurisdiction where he has been admitted is relevant. K.S.A. 60-409(b)(4) provides that '[j]udicial notice may be taken without request by a party, of . . . specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.' Additionally, judicial notice may be taken of matters of public record in other courts or governmental bodies. See Cities Service Gas Co. v. State Corporation Commission, 192 Kan. 707, 714, 391 P.2d 74 (1964); Board of County Com'rs of Shawnee County v. Brookover, 198 Kan. 70, 76, 422 P.2d 906 (1967). The hearing panel therefore takes judicial notice of the records of United States District Court for the District of Kansas, the United States District Court for the Southern District of Texas, and the United States Court of Appeals for the Fifth Circuit, as set forth in Documents 84, 85, and 86. Those records reflect:
a. In 2003, the United States District Court for the District of Kansas admitted the respondent to the practice of law in its court. However, since 2003, the respondent has not paid any registration fees. Accordingly, the United States District Court for the District of Kansas terminated the respondent's license to practice in its court in 2004.
b. On December 10, 2015, based on the 2015 suspension of his Kansas license to practice, the Board of Immigration Appeals entered an order indefinitely suspending the respondent's license to practice law in immigration courts. As a result of the suspension order, the respondent may not practice before the immigration courts, the Board of Immigration Appeals, and all offices of the Department of Homeland Security.
c. The respondent's license [] to practice in the United States District Court for the Southern District of Texas expired on November 7, 2013.
d. The respondent's license to practice before the United States Court of Appeals for the Fifth Circuit expired on February 6, 2011.
"DA11473 - Representation of U.I.
"47. On June 25, 2009, the United States Attorney filed a criminal complaint against U.I. in the United States District Court for the Southern District of Texas, Houston Division. Thereafter, on July 23, 2009, a grand jury returned a criminal indictment against U.I. On October 19, 2009, a grand jury returned a superseding indictment against U.I. and on March 25, 2010, a grand jury returned a second superseding indictment charging U.I. with 55 felony counts of health care fraud, mail fraud, and money laundering. In the second superseding indictment it was alleged that U.I. and other defendants billed Medicare and Medicaid for fraudulent claims and, as a result, received thirty million dollars.
"48. On July 7, 2009, K.A., U.I.'s business manager, approached the respondent about representing U.I. in the criminal case. The respondent agreed to meet with U.I. On July 8, 2009, the respondent met with U.I. at the Joe Corley Detention Center. At that time, the respondent had less than 6 years' experience practicing law. Following their meeting, despite the respondent's inexperience having not yet tried a jury trial nor handled a Medicare or Medicaid fraud case, the respondent agreed to represent U.I.
"49. At the hearing on this matter, the respondent initially testified that he had not tried any jury trials. Later, he asserted that he had tried one jury trial, however, he could not remember his client's name, the nature of the case, or when it was tried. If the respondent had actually tried one and only one jury trial in his life, the hearing panel believes that he would have some memory of that case.
"50. The respondent advised U.I. that the case was complex and that he intended to associate with other counsel. The respondent told U.I. that if no other counsel was found to represent U.I., the respondent's firm would represent U.I. The respondent told U.I. that he would require a fixed $3, 000, 000 nonrefundable fee. The respondent told U.I. that the fee would cover all investigative costs and attorneys' fees charged by other counsel the respondent would retain to represent U.I.
"51. On July 9, 2009, the respondent returned to the Joe Corley Detention Center with a fee contract. The respondent and U.I. signed the contract. The contract provided, in pertinent part, as follows:
'3. SCOPE OF REPRESENTATION: Prince & Associates and Client agree that Prince & Associates will select, interview and hire suitable Law firms, attorneys, investigators, and other experts in representing and defending client in the pending case. Prince & Associates will associate, coordinate and supervise other lawyers, Law firms and other entities it hired in reviewing, negotiating, preparing for trial and in trying said case. If Prince & Associates is unable to find a suitable law firm or attorneys to associate with in the litigation of pending matter, Prince & Associates is allowed to represent client solely and alone using Prince & Associates in-house attorneys.
'4. FEES: Clients agrees that it will pay Prince & Associates the sum of $3 million (three million) U.S. dollars in GOOD AND LAWFUL FUNDS as retainer for representing client in the pending case. Client agrees and understands that the fees quoted above are only legal fees, and does not include ancillary costs, such as the costs of filing fees, long distance calls, or communications, investigations, depositions, transcripts, copies, expert witness, etc. Client agrees that the above fees do not include appeals or costs associated with appeals, court litigation or services other than one listed above. Client shall reimburse Prince & Associates for any expenses incurred in this matter such as long-distance calls, mailing costs, copying costs, etc [sic] as applicable. Incase [sic] of appeal, client understands and agrees that he has the right to retain any attorney of his choice to appeal his case and does not have to retain Prince & Associates in his appeal. However, if client further retains Prince & Associates for appeal, client agrees that new fees will be charged.
'5. NON-REFUNDABLE FEES: Client agrees that the pending case has gathered lots of media publicity and it is very complex. Client agrees that said case will be extremely time consuming and requires lots of attention. Client further agrees that in the process of representing client, Prince & Associates and other attorneys involved in this case will have to reject potential businesses and clients in order to give the required attention and time involvement in his case. Client agrees that he does not want to plead guilty to the charges on the indictment and that he is authorizing Prince & Associates in conjunction with other lawyers or Law firms to prepare his case for trial. Client further acknowledges that such trial preparation will be time consuming and may lead to potential economic loss to Prince & Associates, P.C [sic] and or its associates or lawyers. Therefore by affixing his signature below, CLIENT UNDERSTANDS, AGREES AND CONSENTS that the THREE MILLION DOLLARS retainer fees is NON-REFUNDABLE AND WHOLLY EARNED SO LONG AS Prince & Associates or in conjunction with other lawyers and or other Law firms complete the pending matter with the U.S [sic] District Court for the Southern District of Texas. However, should Prince & Associates and or any of his associates, attorneys or other Law firms Prince & Associates hires to represent client BE TERMINATED by client in WRITING for any reason prior to the completion of client's representation or trial, Prince & Associates, P.C [sic] will bill for the services it so far rendered at the rate of $500 per hour and will account and refund any unused or unearned retainer fees to enable client [sic] hire a different attorney to complete his case.
'6. NO OBLIGATION TO PAY OTHER LAWYERS: Client understands and agrees that he has no other obligation to pay any retainer fees or attorney fees to any other lawyers, attorneys or Law firms that Prince & Associates has hired to represent client or to help in the pending matter. Client consents and agrees that Prince & Associates will share its retainer fees with these lawyers, attorneys, associates or Law firms. However, Prince & Associates, P.C [sic] will not be responsible for any attorney fees incurred by any other lawyers that Prince & Associates, P.C [sic] did not hire or select in connection with the pending case.
. . . .
'10. KEEPING CLIENT INFORMED: Prince & Associates, P.C [sic] and or its associates will make periodic visitation to client in detention to keep client informed of all updates on his case. Upon client's authorization, Prince & Associates will keep client's families updated on client's case and will answer any questions client or his family may have regarding client's case.'

         At the hearing on this matter, the respondent testified that all expenses were to be paid out of the $3, 000, 000 attorney fee. The respondent further testified that the provision in the contract to the contrary was in error.

"52. At some point, U.I. also retained Kenneth Nnaka to represent him. U.I. and Mr. Nnaka entered into a fee agreement and U.I. agreed to pay an initial advance fee of $20, 000. Further, U.I. agreed to pay for subsequent representation after the initial advanced fee was exhausted. Mr. Nnaka commenced the representation and U.I. issued a check in the amount of $10, 000. Mr. Nnaka traveled to Nigeria on behalf of U.I. to handle U.I.'s business affairs. Upon Mr. Nnaka's return from Nigeria, U.I. stopped payment on the $10, 000 and refused to pay Mr. Nnaka for his time and expenses incurred in traveling to Nigeria on behalf of U.I. Mr. Nnaka sued. Later, Mr. Nnaka's motion for summary judgment was granted.
"53. Between July 14, 2009, and February 12, 2010, U.I. paid the respondent a total of $2, 170, 808.49, as follows:

July 14, 2009

$200, 000.00

August 11, 2009

$200, 000.00

September 24, 2009

$20, 000.00

November 5, 2009

$749, 927.38

November 12, 2009

$550, 927.11

February 5, 2010

$200, 000.00

February 12, 2010

$249, 954.00

TOTAL

$2, 170, 808.49

There are many references in the record that U.I. paid a total of $1, 950, 000 to the respondent. However, the evidence clearly establishes wire transfers from U.I. to the respondent for a total of $2, 170, 808.49. U.I. did not pay the balance of the fee agreed to in the fee agreement.
"54. Throughout the representation of U.I., the respondent met with and interviewed a variety of lawyers and retained a number of lawyers on behalf of U.I. to assist with the defense of the criminal charges.
"55. Additionally, while U.I.'s charges were pending, the respondent assisted U.I. with a variety of personal matters-including keeping U.I.'s family informed regarding the status of the case, paying bills for U.I. out of the attorney fees received by the respondent, permitting U.I. to make telephone calls to Taiwan and Nigeria from jail through the respondent's law office, and providing the various attorneys representing U.I. with information regarding the nuances of the Nigerian culture. Most of these services, however, were not included in the scope of the representation as detailed in the fee agreement. The scope of the representation was limited to locating attorneys, coordinating attorneys, providing legal representation, and updating U.I. and his family regarding the status of the representation, all in the criminal case.
"56. During the period of time the respondent represented U.I., the respondent was unable to accept certain representations. However, the respondent continued to actively represent many other clients. The respondent asserted that he was unable to attend to other business matters. However, it is clear that the respondent continued to be active in the management of a number of businesses in which the respondent had an ownership interest.
"57. The respondent made contact with Esteban Pena, a 35-year-old attorney practicing in the same building as the respondent. The respondent asked Mr. Pena if he had previously represented defendants in federal criminal matters. Mr. Pena told the respondent that he had not, but that he knew an attorney who did have that type of practice. Mr. Pena recommended that the respondent contact Ralph Martinez.
"58. The respondent asserted that he hired Mr. Pena to represent U.I. as part of the defense team. Specifically, the respondent alleged that he paid Mr. Pena $50, 000 in the form of a cashier's check for the representation, prior to Mr. Pena's death from a heart attack. The respondent asserted that the $50, 000 came from the respondent's personal funds held in cash in his safe. However, Mr. Pena's widow, who served as the office manager for Mr. Pena's solo practice, testified as follows:
'Q. Was-was there an occasion where Mr. Pena referred a case to Mr. Nwakanma concerning Medicare fraud?
'A. 'Um, he didn't refer the case to Prince, Prince came to my husband and asked my husband if he did federal criminal defense. Steven told him he did not, but his mentor and really good friend, Ralph Martinez, was a really good attorney that did a lot of federal work. And so he referred the case. You know, he told him if you need a really good attorney, this is the person you should hire.
'Q. Do you know if Mr. Martinez took the case?
'A. He did take the case, but it was very briefly. I think he probably had one court hearing, that I remember-that I remember of, 'um, which was, like, a bond hearing. And shortly after Prince didn't want to pay his-his retainer and he was fired from the case.
'Q. Do you know if Mr. Pena ever went with Mr. Martinez to go see that client up at the Joe Corley Facility?
'A. Yes, he did. Yes, he did.
'Q. Why did he go with him?
'A. Because Ralph was going to teach him how to do these federal cases.
'Q. So he was kind of shadowing. Is that-
'A. Exactly. Yes, ma'am.
'Q. Was Mr. Pena hired to work on [U.I.]-was that the defendant's name, [U.I.], the client?
'A. Yeah. No, ma'am.
'Q. I'm sorry.
'A. He was not hired.
'Q. He was not hired to work on that case?
'A. No. No, ma'am.
'Q. And just for clarification, was [U.I.] the defendant that had the federal case that we're talking about that Mr. Prince hired Mr. Martinez on?
'A. Yes, ma'am.
'Q. Okay. And so Mr. Pena was never hired to work on that case. Is that what you're saying?
'A. No, ma'am.
'Q. Now, Mr. Nwakanma said that he paid Mr. Pena $50, 000 to represent-- or to work on [U.I.]'s case. Is that true?
'A. No, ma'am.
'Q. And how would you know that?
'A. Well, because I dealt with all accounts receivables. 'Um, Steven
never was an attorney of record, and I doubt that he paid Steven $50, 000, if he didn't even pay the actual attorney that he hired to do the case. I think he-I think we were charging-or Ralph was charging about 40, 000, if I remember. I don't remember exactly the numbers, but I think he only paid him 12 to 13, 000, if I remember correctly. 'Um, Steven was highly embarrassed because he was the one that recommended Mr. Ralph Martinez to Prince, okay, and Prince didn't finish paying the retainer.
'Q. If a $50, 000 was paid to Mr. Pena, would you have known about it?
'A. Absolutely.
'Q. Would that have been a lot of money for the Pena Firm?
'A. It would have been a lot of money and I wouldn't have struggled burying my husband September the 4th when he passed away because I would have had that money in the account.'
Additionally, on cross-examination, Ms. Pena testified:
'Q. Okay. Ma'am, can we establish the fact that you cannot sit out here and testify you knew everything that happened in your husband's life?
'A. What I can sit down and testify is that I knew every penny that came into our practice, because at the end of the day I took accounting of account receivables, and I was his wife. Before he took one dime out of any accounts, I already knew about it.
'Q. So if my secretary testified they give a check actually to your husband and come to testify. Would that be correct?
'A. I can hear anything, but if you can prove to me that you give him a $50, 000 check, then I would be extremely surprised.'
Based upon all the evidence presented, the hearing panel finds that the respondent did not retain Mr. Pena or pay him $50, 000 to represent U.I.
"59. Mr. Pena introduced Mr. Martinez to the respondent. Mr. Martinez agreed to represent U.I. through the complete resolution of the case for $40, 000. Thereafter, Mr. Martinez and Mr. Pena met with U.I. in the prison. When they arrived at the prison to meet with U.I., the respondent was also present. On September 4, 2009, Mr. Pena suffered a heart attack and died.
"60. The respondent initially paid Mr. Martinez $10, 000 of the agreed fee.
Later, the respondent paid Mr. Martinez an additional $5, 000. The respondent failed to pay Mr. Martinez any additional fees.
"61. Mr. Martinez represented U.I. at the bond hearing. In addition to Mr. Martinez, other attorneys that the respondent had retained for U.I. were also present at the bond hearing but did not participate in the hearing, as Mr. Martinez was counsel of record. The court denied the request for bond and U.I. remained in detention.
"62. U.I. was dissatisfied that he remained in prison without bond and directed the respondent to replace Mr. Martinez. The respondent contacted Abraham Fisch. Mr. Fisch agreed to represent U.I. On behalf of U.I. the respondent provided Mr. Fisch with a cashier's check in the amount of $250, 000 for the representation.
"63. By this time, U.I. had expressed some amount of dissatisfaction with the respondent's services. It appears that U.I. believed that the respondent was 'cheating' him. In an email message, the respondent stated that if U.I. continued to feel that same way, the respondent would be exiting the case immediately. At the hearing on this matter, the respondent testified that U.I. was satisfied with the respondent's assistance until he was convicted at trial. Relying on the respondent's email message, the hearing panel concludes that the respondent's testimony in this regard to be false.
"64. After Mr. Fisch was retained to represent U.I., Mr. Fisch told U.I. that in return for payment of a large fee, an associate would pay off a government official in Washington, D.C. Mr. Fisch promised U.I. that the criminal charges would be dismissed.
"65. In November 2009, U.I. deposited a total of $1, 300, 854.49 into the respondent's attorney trust account. See ¶ 53, above. If U.I. is to be believed, the $1, 300, 854.49 was to be used to pay off the governmental official to obtain a dismissal of the charges against U.I.
"66. Thereafter, Mr. Fisch called Mr. Martinez and informed him that he had been retained to represent U.I. Then, Mr. Martinez called the respondent and the respondent told Mr. Martinez that his services were no longer needed. Mr. Martinez told the respondent that only U.I. could terminate the representation. Mr. Martinez traveled to the prison and met with U.I. U.I. terminated Mr. Martinez' representation.
"67. Following his meeting with U.I. in prison, on December 4, 2009, Mr. Martinez filed a motion to withdraw from the representation of U.I. On December 15, 2009, the court granted Mr. Martinez' motion to withdraw. Mr. Martinez provided his file to Mr. Fisch.
"68. When Mr. Fisch was also unable to get U.I. released from prison, U.I. became dissatisfied with Mr. Fisch's representation. The respondent continued to look for other attorneys to represent U.I.
"69. As an aside, Mr. Fisch also made similar promises to other individuals facing criminal charges. Later, Mr. Fisch was charged with obstruction of justice, money laundering, conspiracy to commit money laundering, and failure to file tax returns. Mr. Fisch was convicted and sentenced to prison.
"70. Ultimately, in February 2011, the respondent retained Dick Deguerin and Sean Buckley to represent U.I. Mr. Deguerin had extensive experience in Medicare and Medicaid fraud defense. Additionally, Mr. Buckley had significant experience representing federal criminal defendants, having represented criminal defendants in approximately 20 federal criminal jury trials.
"71. Mr. Deguerin's fee letter, read, understood, and agreed to in writing by U.I., provided:
'You have asked that I represent you in a federal indictment alleging health care fraud in the United States District Court for the Southern District of Texas, Houston Division. We have agreed upon a non-refundable contract fee of $250, 000 for me to handle your case. This fee does not include the cost of out-of-pocket expenses, and we have agreed that you will provide a $100, 000 deposit through attorney Prince Uche Nwakanma, for out-of-pocket expenses. I will continue to associate Attorney Prince Uche Nwakanma, to assist with your defense, but you will be responsible for his attorney's fees.
. . . .
'When I say that I will "handle your case, " I mean that I will represent you once through the trial court level of this case, including post-verdict motions if and when they are necessary. . . .
. . . .
'Normally, I require that my contract fee and the expense deposit be paid in full before I begin my representation. However, given that I sympathize with your financial situation and trust you, I am making a very rare exception. You and I have agreed to the following payment arrangements:
You have paid $200, 000 of the fee now, and upon receipt of that payment I am immediately beginning work on your case. The remainder of the fee, plus the expense deposit, must be paid within 45 days from the date of this letter. If the remaining fee and expense deposit are not timely paid, I reserve the right to keep all money paid me and to either withdraw from your case or to reassign it to another lawyer within my firm.'
When Mr. Deguerin calculated the fee, Mr. Deguerin and Mr. Buckley anticipated that U.I.'s trial may last a month. The respondent paid $200, 000 on behalf of U.I. to Mr. Deguerin out of the monies received from U.I. Neither the respondent nor U.I. paid Mr. Deguerin any additional fees nor did they pay the $100, 000 expense deposit.
"72. Because the respondent did not pay Mr. Deguerin's total fee, Mr. Buckley, took over U.I.'s representation. While Mr. Buckley relied on the respondent to explain the cultural nuances of the Nigerian community and to assist Mr. Buckley in interfacing with witnesses in the Nigerian community, Mr. Buckley did not anticipate, need, or rely on any assistance from the respondent in representing U.I.
"73. On September 14, 2010, U.I. wrote to the respondent. In the letter, U.I. stated:
'It's [sic] about 3 months you've failed to visit or keep in-touch with me over the phone. Last time we spoke on the phone was last June 23th [sic] 2010-night; reference to the scheduled court case on 06/24/10. And your answer to that was "you didn't know. [sic]
'There are a couple of reasons I'm writing this letter to you and it's absolutely important that you respond to it A.S.A.P.
'1, I will very much like to know about the pending case between Kenneth Nnaka, Attorney at Law-Plaintiff Vs. [U.I.] -Defendant.
'2, in reference to our continuous discussion last time you visited me here at Joe Corley Detention Facility, regarding [ ] of my legal money in your possession. I will very much like to get a certified receipt of how the money ($1.3m) One million three hundred thousand dollars was disbursed between Mr. Lloyd Williams and Abraham Fisch. Alternatively, [ ] will like to see all bank payment receipts showing how the total amount was disbursed in order to determine what line [ ] action to take in recovering the total balance of my money with you as the retained supervising/organiser [sic] of my pending alleged health care fraud case.
'3, I am also requesting for copies of all correspondences [sic] regarding all efforts made in recovering the total amount paid to both Mr. Lloyd Williams and Mr. Abraham Fisch [sic]
'Thanks for your continuous co-operation and understanding.
'I expect to see or read from you soon.'
The respondent denied receiving this letter and asserted that U.I. 'made up' the letter. As detailed in ¶ 160(b), the hearing panel finds that the respondent's testimony in this regard lacks credibility.
"74. The jury trial was held in May 2011. On May 27, 2011, the jury unanimously found U.I. guilty of 48 felony crimes. At the sentencing hearing, held in October 2011, the court sentenced U.I. to prison for 327 months. The court ordered U.I. to pay restitution of $27, 189, 349.76 to Medicare and $3, 027, 242.39 to Medicaid.
"75. On August 30, 2011, U.I. wrote to the respondent. That letter provided:
'It's been a while we haven't spoken, I hope all is well with you, family and business. The stressful three weeks trial has come and gone in favor of the government. Since then I have been expecting to see or hear from you, but to no avail.
'Thank you so much for the ($5, 000.00) five thousand dollars released to my son [] for my daughter [] school fees.
'Now let me start with the issue we both seem to get somewhat excited. First, I would like you to take a deep breath with your eyes closed in a private place, try meditating believing you are standing before our Heavenly Father God as a Christian (Head of family) in need with family "wife and children" to be specific. As you gently open your eyes, try recalling how it all began.
'I had previously on 09/14/2010 written to you requesting for a clear and detailed accounting statements of my legal fund in your custody, but as at this day you have not been able to furnish me with the statement and of course, showing the balance due to me. It is absolutely against the law. While I patiently wait for your early response to that effect, I like to remind not to deviate from your early promise of going to maintain payments of my house mortgage as well as the children's school fees and expenses. Essentially, the children needs a place they can recline after a hard days toil which has become part of life everywhere in the world- especially in the case of my poor children whose father has been incarcerated for over 2 years now. You can imagine the mental anguish the situation is causing them.
'In my other case also, let me take it a little backward-if you can recall. Sometime (2006) I retained you/your law firm as my immigration Attorney, I was working with you (Your Law Firm) regarding changing to my status citizenship which didn't end up well for laxity of follow-ups interview from your office, and not for nonpayment of the services as I paid you complete. But [] that never baized [sic] or impacted my mind in accepting [K.A.]'s choice of appointing you to manage/assist with finding a solution to my legal problems. I accepted his approval of you to handle the responsibilities without any doubt. Therefore, I pose question to you "what did I do wrong to warrent [sic] your nonchallant [sic] attitude." For over two years I have been incarcerated I have not been getting money from anywhere, and business I was about to establish in Nigeria before my case started is now stranded for nonavailable funds to back it up [sic] Any moment from now, my kids may be ejected or facing foreclosure problem and I requested you to back up on [sic] regular basis payment of the mortgage until accounting statements of my legal fund in your custody is reconciled. Knowing full well the amount of my money
still in your possession will definitely take care of my mortgage without one problem.
'Prince, while I'm waiting patiently believing that you will as a Christian have enough time to rebuild what you intentionally did to me and my family, outside the scope of your practice as a lincense [sic] Attorney.
'I pray every day that Almighty God will guide and protect us, so as to end up the same way we started without a third-party intervention.
'Extend my sincere greetings to you beloved wife and children. Expecting to see you at Joe Corley Detention Facility soon. Thanks for your co-operation and understanding.'
The respondent, again, asserted that he did not receive this letter because U.I. 'made up' the letter.
"76. On November 9, 2011, Tola Oresusi, an attorney retained by U.I. Wrote to the respondent regarding their mutual client, U.I. The letter provided:
'I write with respect to our clients [U.I.] & Family, who have retained the undersigned law firm to prosecute their complaint and cause of action regarding the above referenced matter. This letter constitutes our clients' third written request and demand form [sic] you for an accounting and return of money transferred to you in trust by [U.I.] The total amount you are to account for is $1.95 million, U.S. dollars. This is the last formal notice of complaint and demand for return of money pursuant to the Texas Deceptive Trade Practices Act. Please direct any and all communications, be they written or oral, about this matter to my attention. Please do not contact any of our clients, [U.I. and his] family.
'On numerous occasions, our clients have made attempts to resolve this matter with you but you have not been forthcoming, notwithstanding many promises made to fully refund the money left in trust with you.
'[U.I.] allegedly signed a contract with you but you have refused to give him a copy of that contract in violation of your ethical obligations. You also wrote bounced checks to the family from your IOLTA account, which in itself is a conduct unbecoming of any attorney licensed in any state in the union.
'The above complaint shows your breach of fiduciary duties to our clients. The complaint further constitutes misrepresentation, fraud and breach of the trust both at common law and under Texas Deceptive Trade Practices Act.
'Our clients wish to settle this matter amicably and request that you do the following:
1. If you desire to resolve this matter, please contact this office within sixty (20) [sic] days of your receipt of this letter, so we might avoid unnecessary time, expense and additional attorney fees in litigating this matter.
2. If this matter is unresolved within sixty (60) days form [sic] the date you receive this letter, our clients have instructed us to file a lawsuit against you. We shall have claims against you both at common law and under the Texas Deceptive Trade Practices Act. We shall seek the maximum damages allowed by law against you, plus attorney's fees and costs of court.
3. Attorney's fees, for this type of case, could be very significant.
'It is the intention of our clients and this firm that no binding settlement exists until any proposal and acceptance are both (i) reduced to a written settlement agreement approved by all parties to the settlement, and (ii) signed by all parties for which the settlement agreement contemplates signature, until all conditions or events requested by the settlement agreement are fully satisfied.
'Please contact the undersigned attorney at your earliest convenience so that we may discuss this matter. If I do not hear from you within the next sixty (20) [sic] days, I will assume that you do not wish to settle this matter out of court.'
"77. On November 14, 2011, the respondent sent Mr. Oresusi a message. The message provided:
'This is to advise you that I am in receipt of your letter dated 11-11-2011 wherein you are demanding for "return of money in trust" for [U.I.] family. According to your letter, you claimed that [U.I.] paid the sum of $1.95 million U.S. dollars for his representation and wanted a return of said money.
'I decided to write to explain a little bit more so that you can have a better picture of the issues involved here. As I stated, your client may have misrepresented the actual amount he paid to our firm to you. Also, we are not denying the funds he paid to us but it is our contention that we do not owe your client any monies or that the funds he paid to us was for any trust accounts. Instead, our records show he signed a non refundable retainer contract of 3 million U.S. dollars and did not even comply fully with the payment terms as agreed by both parties yet we completed the entire representation even though we lost. During your client's representation, we hired and paid other law firms large sums of money with the consent of your client to help in defending his matter. Our law firm lost so much money as we could not take other major cases due to the nature of your client's criminal charges. This case needed lots of attention and time involvement that my firm was basically shot [sic] down. We worked days, weekends, and nights. Your client clog [sic] our office and personal telephone lines with excessive calls from jail and excessive demands for oversee [sic] telephone connections and discussions. We paid huge amounts in phone bills as a result. We deposited so much money into your client's jail accounts for his personal use as he requested and we gave so much money for your client's children' [sic] school fees, school housing and mortgages. I even co-signed the housing agreement for your client's daughter. Just about 2 weeks ago, I gave his son $10, 000 to pay for your client's mortgages. I initially figured out that your client's case will be so involving [sic] that I explained this to him which he agreed to before he signed the non-refundable agreement. Counsel, I simply do not know where to start and where to end and I am glad I have so many witnesses ranging from attorneys, office staff, that will testify. And this representation went on for over TWO YEARS.
'Also, be aware that your client was convicted of 55 criminal count [sic] fraud indictment involving about $30 million dollars the government claimed he stole from medicare and medicaid. Your client was sentenced to about 27 years imprisonment as a result. It appears that U.S. Government either has a lien or will have a lien on your client's recoverable property and has already garnished some of your client's assets. Therefore any settlement will be going to U.S. government instead.
'Furthermore, It [sic] just came to my knowledge that your client still has major assets hidden in Nigeria which were acquired with portions of this money and I will encourage you as a lawyer and a Judge (as you claimed) to advise your client to disclose all these assets to the U.S. government immediately. I have already advised his son to have his father disclose these assets to U.S. government. Now I am glad you are his current lawyer and I know you will help in this. I am willing to disclose the source of my information and to work with you to formally advise the U.S. government about your client's hidden assets in Nigeria if you need my help. He has banks or some financially [sic] institutions in Nigeria that may be part of this as well. Additionally, you have indicated you will file a lawsuit to recover the alleged funds (if any), please when you do, make sure U.S. government's interest is protected in the lawsuit as well because if the court determines there are still monies owed to your client, I will make payment arrangements with U.S. governments and make sure the funds go to the U.S. treasury as the rightful recipients of such funds.
'Your letter appear [sic] highly threatening and you made it worse when you further stated to me this morning over the phone that you are a Judge and has [sic] practiced for over 20 years and that I will see what you will do. I am taking this matter very serious as well and will refer this case to my defense team for handling if we could [sic] not resolve this amicably. However, if it is your intension [sic] for us to sit down and discuss this matter amicably and to find better [sic] solution in lieu of possible litigation, I am open to that and if you let me know, I will arrange a meeting. But contrary to your client's assertion, the money he paid was not for any trust. It is for legal fees which was non-refundable due to the nature of his case and the fees were earned. Also, he did receive a copy of the contract he signed with me. But if you decide for us to meet, I will give you another copy and also give you a run down account of the expenses.' (Emphasis added.)
"78. Also on November 14, 2011, U.I. filed a complaint against the respondent with the disciplinary administrator.
"79. On April 30, 2012, the respondent forwarded a written response to U.I.'s complaint. Included in the respondent's written response was a summary of services rendered as well as a summary of expenses. The respondent's written response to the complaint as well as the summary of services rendered and summary of expenses contains many false statements. See ¶ 157, below.
"80. On May 8, 2012, the respondent forwarded a letter to Mr. Oresusi. In the letter, the respondent asserted that U.I. continued to owe the respondent 'a large sum of money.' The respondent attached the summary of services rendered and a summary of expenses to the letter to Mr. Oresusi.
"81. On June 4, 2012, U.I. filed a petition against the respondent, alleging breach of contract, conversion, breach of fiduciary duties, misrepresentation, fraud, and deceptive trade practices in Harris County District Court, case number 2012-32324, for the respondent's failure to account for the monies paid by U.I. On May 14, 2013, the court granted the respondent's motion for summary judgment. On August 14, 2013, U.I. filed an appeal to the order granting the respondent summary judgment.
"82. Thereafter, on February 13, 2014, and shortly before the disciplinary administrator and counsel for the respondent were scheduled to travel to South Carolina to take U.I.'s deposition while he was housed in FCI Estille, the respondent and U.I. entered a settlement and release agreement, which provided:
'THE SETTLEMENT AND RELEASE AGREEMENT is made by and between Mr. [U.I.] and Attorney Prince Uchechi Nwakanma (Attorney), whom collectively are referred to as PARTIES. This Agreement covers all claims and disputes, whether or no [sic] such claims are now pending or have not been asserted between the PARTIES arising from or related to Attorney's representation of [U.I.] in Case No: H-09-426, United States of America v [U.I.], which was pending in the United States District Court for the Southern District of Texas and was resolved by a judgment entered on October 21, 2013.
'[U.I.] as used herein refers to and includes his heirs, representatives, agents, and all individuals or entities who had or have standing to assert a claim on his behalf. Specifically, it includes his son [], to whom [U.I.] has granted a General Power of Attorney and his present attorney of record, Attorney Tola Oresusi.
'Attorney as used herein refers to and includes his heirs, his law firm, or any other entity owned by Attorney or in which Attorney has or may acquire an interest, and which may potentially be exposed to liability arising from or related to the subject matter of this Agreement.
'THE PARTIES REPRESENT AND AGREE AS FOLLOWS:
'1. The PARTIES represent that they are adults, competent in all respects to enter this Agreement and do so, with the advice and consent of their respective independent counsel.
'2. [U.I.] represents that the funds expended by him for his defense of the case against him in the U.S. District Court was a bank loan advanced to him.
'3. [U.I.] has, subsequent to the judgment of the U.S. District Court for the Southern District of Texas, initiated a lawsuit against Attorney in Harris County, Texas. At the present time, [U.I.] is appealing a FINAL TRIAL COURT JUDGMENT in favor of Attorney, in connection with this lawsuit; 01-13-00699-CV.
'4. [U.I.] also initiated a Disciplinary Complaint against Attorney with the State Bar of Kansas, which is presently pending, DA11, 473.
'5. Attorney does not admit any liability for any or all of the claims of [U.I.] in any fora.
'6. The PARTIES have agreed to and now resolve any and every dispute within the scope of this Agreement on the following basis:
a. Attorney shall pay [U.I.] or his heirs, the sum of four hundred and twenty five thousand U.S. dollars (US $ 425k) for the final, full, and complete settlement of all claims within the scope of this Agreement and this payment is to be utilized to repay portions of the bank loan(s) which was obtained for [U.I.]'s legal fees.
b. [U.I.] shall DISMISS with PREJUDICE his pending appeal in Texas, and shall send a letter to the Kansas State Bar notifying the Bar that he has resolved all claims with Attorney, and shall no longer participate in any related proceeding. A sample of said letter shall be attached hereto and is herein incorporated by reference as part of this Agreement; c. The sequence of events related to the implementation of this Settlement Agreement shall be as follows: Attorney shall purchase two bank drafts of $100K each made out in the name of Attorney Tola Oresusi and [U.I.'s son] as Agent in Fact of [U.I.]; and shall also issued [sic] checks payable to the same persons in amounts of not less than $10K for the balance of the $225K. The first check and subsequent checks shall be due and payable on the last day of the month following the date on which the Kansas Disciplinary Action is terminated, or the last day of the month after the State Bar of Kansas acknowledges [U.I.]'s intent to dismiss the Kansas Proceedings, whichever occurs first in time.
d. [U.I.] and his agents shall prepare for filing a Motion to Abate in the Court of Appeals and a SIGNED COPY of the Kansas Dismissal Letter.
e. All of the bank drafts, payment checks, Motion to Abate and Dismissal Letter shall be delivered to Mr. James Okorafor. Upon confirmation of the filing of the Motion to Abate in the Court of Appeals and mailing of the Dismissal Letter to Kansas, the first $100k draft shall be delivered to Attorney Tola Oresusi. Upon confirmation or receipt of a letter of Termination of the Kansas Proceedings or of [U.I.]'s Dismissal Letter of the Kansas Proceedings by the State Bar of Kansas, the second $100k draft and ALL the payment checks shall be delivered to Attorney Tola Oresusi, who shall then file a Motion to Dismiss with Prejudice any [sic] Court of Appeals, Houston, Texas.
f. In the event, the State Bar of Kansas proceeds with the Disciplinary Complaint after its receipt and acknowledgment of [U.I.]'s Dismissal Letter, [U.I.] and\or his representatives shall give attorney a sworn statement attesting to the fact that Attorney does NOT owe [U.I.] any money in relating to the complaint and that [U.I.] does not expect any restitution to be paid to him.
g. Attorney also agrees to help [U.I.] and his family to recover an over payment of $75k in attorney's fees to Attorney Dick Deguerin of Houston, Texas by providing a sworn statement to [U.I.] confirming the amount Attorney Dick Deguerin promised to charge [U.I.] if he himself tried the case as against if an associates [sic] of his tried the case.
'7. Attorney agrees that as liquidated damage for any check(s) not negotiable on the due date, he shall pay an additional $25.00 per day, until fully paid.
'8. [U.I.] agrees to indemnify, defend, and hold harmless Attorney for any and all losses, claims, demands, causes of action, and any judgments, fees, expenses, cost of any nature whatsoever paid and incurred as a result of or arising within the scope of this Agreement.
'9. The PARTIES agree and understand that this Agreement constitutes a FINAL and complete settlement, release, payment in full, and accord and satisfaction of ...

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