The Florida Bar v. Nowacki

697 So. 2d 828, 22 Fla. L. Weekly Supp. 492, 1997 Fla. LEXIS 1061, 1997 WL 417274
CourtSupreme Court of Florida
DecidedJuly 17, 1997
Docket86586
StatusPublished
Cited by21 cases

This text of 697 So. 2d 828 (The Florida Bar v. Nowacki) 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. Nowacki, 697 So. 2d 828, 22 Fla. L. Weekly Supp. 492, 1997 Fla. LEXIS 1061, 1997 WL 417274 (Fla. 1997).

Opinion

697 So.2d 828 (1997)

THE FLORIDA BAR, Complainant,
v.
K. Kristine NOWACKI, Respondent.

No. 86586.

Supreme Court of Florida.

July 17, 1997.
Rehearing Denied September 24, 1997.

*829 John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jan Wichrowski, Bar Counsel, Orlando, for Complainant.

K. Kristine Nowacki, Daytona Beach, Respondent, pro se.

PER CURIAM.

We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by K. Kristine Nowacki. We have jurisdiction. Art. V, § 15, Fla. Const.

The Bar filed a five-count complaint against Nowacki in October 1995 alleging a failure to keep several clients reasonably informed or act with reasonable diligence and promptness in dealing with them, as well as an instance of dishonest conduct regarding the payment of a former employee for time worked in Nowacki's law office. Circuit Court Judge Bill Parsons was appointed referee and a final hearing was held in July *830 1996. The referee entered his final report on November 18, 1996, detailing factual findings as to guilt and making recommendations as to discipline for the five counts charged in the complaint.

FACTS

The referee's report reveals the following facts and determinations as to guilt. In late 1994, and through 1995, Nowacki underwent significant trauma and treatment for breast cancer, but kept her sole practitioner law practice open during this time by hiring a paralegal and associates to whom she delegated the day-to-day running of the office. Nowacki was available to her staff and clients only for emergencies during her treatment.

Count I involves Nowacki's representation of William Ludecker beginning in March 1994 in connection with a dissolution of marriage action. Nowacki charged Ludecker $2000 for her services, which proved to be minimal. Following a temporary hearing in Mr. Ludecker's case in May 1994, the referee found that Nowacki took little further action on Mr. Ludecker's behalf, despite receiving numerous letters from her client, including one in August 1994, advising that he wanted to obtain immediately a change of custody order, in which his wife concurred, that would grant him custody of the couple's minor child. In addition, and contrary to Nowacki's assertions at the hearing that Mr. Ludecker's dissolution case had to be set for a trial due to the failure of the parties to agree on a settlement, Nowacki received a letter from opposing counsel suggesting a settlement in June 1994. The sum total of Nowacki's efforts in representing Mr. Ludecker consisted of merely reviewing the temporary support order, receiving the numerous letters for her client, and eventually withdrawing from the representation in December 1994. Nowacki contends that she also made repeated phone calls to Ludecker, but was unsuccessful in speaking to him because he did not give her a valid telephone number. Nevertheless, she acknowledges that Ludecker's letters to her each contained a return address and she failed to offer any evidence of written communication with her client. Finally, the referee specifically found that Nowacki's illness was not a mitigator to this conduct as Ludecker's representation occurred prior to the illness.

As to count I, the referee recommended that Nowacki be found guilty of violating the following Rules Regulating the Florida Bar: rule 4-1.3 (failing to act with reasonable diligence and promptness in representing a client), and rule 4-1.4 (failing to keep a client reasonably informed about the status of a matter, failing to promptly comply with reasonable requests for information, and failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation).

Count II involves Nowacki's undue delay in paying a former employee, Ann Rogers, for time worked, and subsequent failure to pay her for several days of work during Ms. Rogers' last week of employment. Ms. Rogers initially worked for Nowacki as a paralegal, secretary and receptionist, and later became an associate lawyer in Nowacki's office after being admitted to The Florida Bar. The referee found that Nowacki issued Ms. Rogers an office account check in January 1995, but the check could not be cashed and was returned to Nowacki's financial institution twice because of insufficient funds. The check to Ms. Rogers was finally honored more than a year later in February 1996. The subsequent salary dispute stemmed from Nowacki's refusal to pay Ms. Rogers for two days of work during her last week of employment on grounds that Ms. Rogers had not worked those days and was not entitled to payment. Nevertheless, Nowacki indicated in a response to the Bar's inquiry about the salary dispute in May 1995, that she had regularly paid her associate for time Ms. Rogers did not work. The referee concluded that under these circumstances, Nowacki owed Ms. Rogers' wages for the disputed days of work during Rogers' last week, and further found that after Ms. Rogers opened her own law practice, and was opposing counsel in a case handled by Nowacki, Rogers was unable to contact Nowacki because she had set up a call blocking system to prevent Rogers from contacting her about the salary dispute.

*831 As to count II, the referee recommended that Nowacki be found guilty of violating rule 4-8.4(c) for engaging in conduct involving dishonesty.

Count III involves Nowacki's representation of Franklin E. Burns in a personal bankruptcy action. Shortly after Mr. Burns' initial consultation with Nowacki in January 1995, Nowacki underwent treatment for breast cancer and delegated Mr. Burns' and her other clients' needs to a newly hired associate. Nowacki failed to inform her clients of her situation and was available to her associate by telephone on an emergency basis only. When Mr. Burns learned that Nowacki would not be able to provide him timely personal representation, he requested a refund and refused to allow Nowacki's new associate to proceed further with the matter. Nowacki's associate rejected Mr. Burns' request and called the local police department to the law office to settle the dispute with Mr. Burns. While Nowacki maintains that Mr. Burns is not entitled to a refund of his fees because her office did prepare the necessary paperwork for his petition, she acknowledges that the work was done solely by her new associate and without her participation. She further acknowledges that she should have contacted each of her clients and informed them of her need to take medical leave.

In light of Nowacki's admitted lack of communication with her client, and wholesale delegation of her caseload to a new associate, the referee recommended that as to count III, Nowacki be found guilty of a second violation of rules 4-1.3 and 4-1.4(a), as well as violating rule 4-5.1(b) (having direct supervisory authority over another lawyer and failing to make reasonable efforts to ensure that lawyer conform to the Rules of Professional Conduct).

Count IV involves Respondent's representation of Mr. Perry White regarding a Chapter 7 individual bankruptcy filing. Shortly after his initial meeting with Nowacki and paying her the $350 retainer fee, Mr. White became concerned about how such a filing would impact his status as an illegal alien in the United States. When he called to inquire about the specific legal issues affecting his immigration status, respondent refused to answer his questions. Consequently, Mr.

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Bluebook (online)
697 So. 2d 828, 22 Fla. L. Weekly Supp. 492, 1997 Fla. LEXIS 1061, 1997 WL 417274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-nowacki-fla-1997.