The Florida Bar v. Nicnick

963 So. 2d 219, 2007 WL 2002590
CourtSupreme Court of Florida
DecidedJuly 12, 2007
DocketSC06-290
StatusPublished
Cited by5 cases

This text of 963 So. 2d 219 (The Florida Bar v. Nicnick) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Florida Bar v. Nicnick, 963 So. 2d 219, 2007 WL 2002590 (Fla. 2007).

Opinion

963 So.2d 219 (2007)

THE FLORIDA BAR, Complainant,
v.
David Samuel NICNICK, Respondent.

No. SC06-290.

Supreme Court of Florida.

July 12, 2007.

*220 John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Juan Carlos Arias, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.

*221 Kevin P. Tynan of Richardson and Tynan, PLC, Tamarac, FL, for Respondent.

PER CURIAM.

We have for review a referee's report recommending that David Samuel Nicnick be found guilty of professional misconduct and suspended from the practice of law for ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings and recommendations.

FACTS

The Florida Bar filed a complaint against David Samuel Nicnick alleging violations of Rules Regulating the Florida Bar 3-4.2 (violation of Rules of Professional Conduct is a cause for discipline); 3-4.3 (commission of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline); 4-3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 4-3.3(a)(2) (a lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client); 4-3.3(a)(4) (a lawyer shall not knowingly permit any witness to offer testimony or evidence that the lawyer knows to be false); 4-3.4(a) (obstructing another party's access to evidence); 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another); and 4-8.4(c) (a lawyer shall not engage in conduct involving misrepresentation). After considering stipulated facts and conducting a hearing to determine disputed facts, the referee issued a report in which the following findings and recommendations were set forth:

Nicnick represented a mother in a case involving child support arrearages. In that case, it was alleged that the child's father had fraudulently transferred stock to his mother to avoid a child support obligation. The mother-in-law retained counsel to provide representation for her in the litigation from June 1, 1999, through May 2, 2001, at which time counsel was allowed to withdraw. Nicnick was aware that the mother-in-law was represented by counsel during those dates.

The mother was approached by the mother-in-law's personal assistant. The personal assistant informed the mother that the mother-in-law wished to settle the litigation. The mother informed Nicnick of this development, and sought from him a written outline of a settlement agreement. Nicnick drafted this and a revision requested by the mother. Nicnick had no expectation that the documents he drafted would be returned to him executed.

On or about February 17, 2001, the personal assistant delivered an executed settlement agreement to Nicnick with a signature purporting to be that of the mother-in-law. At the same time, Nicnick and his law partner were meeting with the same personal assistant concerning legal representation; this personal assistant had been accused of stealing the mother-in-law's automobile and was asking Nicnick and his partner to provide his legal representation. Concerned about the personal assistant's damaged relationship with the mother-in-law, Nicnick decided not to proceed with the settlement agreement until the criminal case was resolved. Nicnick did not inform opposing counsel of the signed settlement agreement because he did not want him involved. Thus, opposing counsel had no knowledge of the agreement. Further, the mother did not see the mother-in-law sign the document. For the purposes of the disciplinary proceeding, the parties stipulated that an expert would have testified that *222 the signature on the settlement agreement was not that of the mother-in-law.

On August 28, 2001, the trial court held a hearing in the civil case. At that hearing, Nicnick informed the court that the settlement agreement appeared to be signed by the mother-in-law, but he had no independent confirmation of that fact. The mother-in-law denied signing the document, as well as a certified copy of a traffic citation which Nicnick used as a handwriting exemplar. Subsequent to the hearing, the trial court entered a Partial Finding of Fact and a Final Judgment for the mother, finding she and the mother-in-law entered into a valid settlement agreement that settled all matters in the case. Although the trial court's ruling has been challenged many times, it still stands.

The referee concluded that there were no violations of rules 4-3.3(a)(1), 4-3.3(a)(2), 4-3.3(a)(4), and 4-8.4(c) with respect to the actual use of the settlement agreement in the civil litigation because Nicnick made the appropriate disclosures to the trial judge. Also, the referee concluded that rules 3-4.2, 3-4.3, and 4-8.4(a) were inapplicable to the present case. However, the referee concluded that once Nicnick gave the settlement agreement to his client, the mother, with the understanding that it would be delivered to the mother-in-law, he had an obligation to share the document with opposing counsel. The referee found that, here, Nicnick failed to do so because he did not want opposing counsel to be involved at that time. By failing to share the settlement agreement with opposing counsel before presenting it to the mother-in-law, the referee concluded that Nicnick violated rules 4-3.4(a) and 4-8.4(c).[1]

The referee found that the following aggravating factors were present: (1) prior ten-day suspension for misconduct in Case No. SC01-274; and (2) substantial experience in the practice of law because Nicnick has been practicing since 1992. In mitigation, the referee found: (1) absence of a dishonest or selfish motive; (2) full cooperation with the Bar; (3) good character and reputation; (4) remorse; and (5) remoteness of prior offense.

The referee recommends that Nicnick: (1) be suspended from the practice of law for a period of ninety-one days; (2) complete a minimum of ten hours in ethics Continuing Legal Education courses within six months of the date of this Court's approval of the referee's report; and (3) payment of the Bar's costs in the amount of $3,711.56.

Nicnick petitioned for review of the referee's report, challenging the referee's recommendations as to guilt and discipline.

ANALYSIS

First, Nicnick challenges the referee's recommendations as to guilt. The party contending that the referee's findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. Fla. Bar v. Carlon, 820 So.2d 891, 898 (Fla.2002); Fla. Bar v. Vining, 761 So.2d 1044, 1047 (Fla.2000). Nicnick challenges the referee's conclusion that he violated rules 4-3.4(a) (Obstructing Another Party's Access to Evidence) and 4-8.4(c) (Engaging in Conduct Involving Misrepresentation).

*223 Rule 4-3.4(a) provides that a lawyer shall not

unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.

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Cite This Page — Counsel Stack

Bluebook (online)
963 So. 2d 219, 2007 WL 2002590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-nicnick-fla-2007.