Bd. of Prof'l Responsibility v. Hiatt

• Citation: 422 P.3d 940
• Decision Date: 11 June 2018
• Docket Number: D-18-0001
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Robert W. HIATT, Jr., WSB # 6-2951, Respondent.
• Court: United States State Supreme Court of Wyoming

422 P.3d 940

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,

v.Robert W. HIATT, Jr., WSB # 6-2951, Respondent.

D-18-0001

Supreme Court of Wyoming.

June 11, 2018

ORDER OF 30-DAY SUSPENSION

[¶1] This matter comes before the Court upon a Report and Recommendation for Order of Public Censure filed on February 9, 2018, by the Board of Professional Responsibility of the Wyoming State Bar (BPR), and Bar Counsel’s Objections to Report and Recommendation filed on February 27, 2018. The BPR concluded that Mr. Hiatt violated Rules 1.3, 1.4, 1.5, and 1.16 of the Wyoming Rules of Professional Conduct and recommended public censure and payment of costs and fees. Bar Counsel objects, contending that the appropriate sanction should include a 30-day suspension because Mr. Hiatt has been publicly censured for similar conduct in the past. Having considered the report and recommendation and Bar Counsel’s objections, having reviewed the BPR’s record and the transcript of the hearing before the BPR, and being fully informed in the premises, this Court finds and concludes that the record before the BPR establishes by clear and convincing evidence that Mr. Hiatt violated the Wyoming Rules of Professional Conduct. We reject the BPR’s recommendation for censure, impose a 30-day suspension, and require Mr. Hiatt to reimburse unearned fees to his client and pay fees and costs to the State Bar.

ISSUES

[¶2] 1. Does the record contain clear and convincing evidence that Mr. Hiatt violated Rules 1.3, 1.4, 1.5, 1.15, or 1.16 of the Wyoming Rules of Professional Conduct?

2. What is the appropriate discipline?

FACTS

[¶3] Mr. Hiatt has been licensed to practice law in Wyoming since 1998, and he maintains a law practice in Rock Springs, Wyoming. This matter arises from his representation of Kyle Dudzik, who contacted Mr. Hiatt in early February 2016 regarding his desire to obtain custody of his son. On March 2, 2016, Mr. Hiatt entered an attorney-client relationship with Mr. Dudzik. They executed an Attorney-Client Fee Agreement under which Mr. Hiatt agreed to perform the work for a $3,000.00 "non-refundable flat fee." The agreement provided that Mr. Dudzik would "pay $250.00 per week by Friday of each week, until the $3000.00 BALANCE IS PAID IN FULL." Mr. Dudzik fell behind in his payments and ultimately paid the balance due after Mr. Hiatt threatened to withdraw from the case.

[¶4] Mr. Hiatt did not wait until the fee was paid to commence work on Mr. Dudzik’s matter. On March 22, 2016, he filed a petition to modify the decree of paternity which sought custody of Mr. Dudzik’s son. Mother hired attorney Bobby Pineda, and on April 7, 2016, he delivered to Mr. Hiatt a filed answer and counterclaim, along with a proposed temporary visitation agreement. On April 14, 2016, Mr. Hiatt filed an answer to the counterclaim, an emergency motion for temporary custody, and a motion for expedited temporary motions hearing. Four days later, Mr. Pineda sent an email to Mr. Hiatt regarding his filings and the use of a guardian ad litem (GAL):

Rob,

I received your motion for an emergency hearing. I don't believe there is any emergency at this point. The majority of your allegations relate to matters prior to the birth of the minor child and are not reflective of the current situation.

However, it being a Judge James case, she is going to require a Guardian Ad Litem prior to any hearing on temporary custody. Who would you suggest? I would be fine with Tim Eagler or Rob Spence. I don't think Tammy Harris is taking new cases at this point. Maybe if we finished Salgado she would take this one on.

Thanks,

Bobby

On April 25, 2016, Mr. Hiatt replied:

I met with my Client and expressed your concerns about a GAL. I did not know [R]ob Spence was doing GAL work. No motion for GAIL [sic] is pending but my motion is. [I] still want a hearing scheduled to get all of that resolved. I have not heard from the court yet on possible hearing dates but [I] will let you know when I do. [T]hanks Rob H.

On May 19, 2016, Mr. Hiatt again contacted Mr. Pineda regarding the use of a GAL:

Bobby [I] just met with my client and we would prefer to use [T]im [E]agler as [GAL] if we have to go that direction, which it appears we do. Thanks Rob H

Mr. Hiatt did not serve initial disclosures 30 days after he received Mother’s answer, as required by W.R.C.P. 26(a) (1.3). Consequently, on June 16, 2016, Mr. Pineda sent Mr. Hiatt a letter requesting he do so. The letter also enclosed combined interrogatories, requests for production and requests for admission to be answered by Mr. Dudzik. Initial disclosures were prepared and were signed by Mr. Dudzik on July 14, 2016. Mr. Dudzik and Mr. Hiatt also prepared answers to Mother’s interrogatories, requests for production, and admissions. Mr. Dudzik hand-delivered his initial disclosures, his confidential financial affidavit, and his answers to Mother’s discovery requests to Mr. Pineda’s office on August 3, 2016. That day, Mr. Pineda and Mr. Hiatt exchanged emails confirming receipt of the discovery and discussing the possibility of a GAL.

[¶5] During the month of August, Mr. Hiatt and Mr. Dudzik exchanged emails concerning records of Mother’s convictions in Colorado and attempting to clarify answers to interrogatories that had been questioned by Mr. Pineda. Regarding the discovery issue, Mr. Pineda served an initial draft instead of the final draft of interrogatories that he had prepared; thus, when he read the answers, they did not align with his final draft. Accordingly, on August 16, 2016, he sent a letter to Mr. Hiatt describing his issues with the answers.¹ Mr. Hiatt forwarded the concerns to Mr. Dudzik, who responded in an email on August 29, 2016. In his response, Mr. Dudzik expressed frustration that Mr. Pineda was "trying to make [him] look bad" and stated that he is "ready for this to be in trial." That same day, Mr. Hiatt sent the following email to Mr. Dudzik:

Dear Kyle:

You are in breach of the employment contract with this firm. Payment terms as agreed to were:

1. I agree to pay The Firm its non-refundable flat fee in the amount of $3000.00. I understand The Firm has not accepted my case and will not act as my attorney until I have signed this agreement and paid the fee. Will pay $250.00 per week by Friday each week, until $3000.00 BALANCE IS PAID IN FULL.

And

8. I agree that The Firm is not required to complete work on my case and that it may withdraw as my attorney at any time if I fail to comply with the exact terms of this agreement. I understand The Firm will send written notice of intent to withdraw. The Firm shall recite as the basis for the withdrawal that there has been a breakdown in the attorney-client relationship.

Your payment should have been completed by 5/20/2016, however, your last payment towards your delinquent balance was made on 8/3/2016 which left a balance outstanding of $1150.00. [I]f the open balance of $1150.00 is not paid in full by the end of business on Friday September 2, 2016, I will file a motion to withdraw from this case as stated above.

Mr. Dudzik responded with an email the next day, indicating that he had obtained a loan and would be dropping off the remaining balance in Mr. Hiatt’s mailbox that evening. He testified that he made the payment as promised on the evening of August 30.

[¶6] On September 6, 2016, Mr. Dudzik emailed Mr. Hiatt asking him, "What’s the plan going forward?" In his September 7, 2016 response, Mr. Hiatt addressed the criminal records issues and then explained, "[T]he plan is to deal with [B]obby problems [interrogatory confusion] next week some time and to plan not to use a [GAL] and just go for a final hearing and show the judge her history and your testimony about how she is unfit to have custody." Mr. Dudzik responded the same day, asking "What are the chances we get a hearing without a [GAL]? And do you think that’s the best route?" On September 20, 2016, Mr. Dudzik again emailed Mr. Hiatt, inquiring, "What’s the latest? Interrogatories?" One week later, Mr. Dudzik again emailed Mr. Hiatt, questioning him, "What’s the latest with things?" Mr. Hiatt did not respond to any of these emails.

[¶7] As these events were unfolding, Mr. Hiatt was in negotiations with Bar Counsel regarding his conduct in representing a different client. On September 29, 2016, Mr. Hiatt signed an affidavit in which he conditionally admitted to violating Rules 1.3 (diligence), 1.4 (communication with client), and 1.16 (duties upon termination of representation). On November 1, 2016, this Court issued an Order of Public Censure containing the following press release:

The Wyoming Supreme Court issued an order of public censure of Rock Springs attorney Robert W. Hiatt Jr. The disciplinary order resulted from Hiatt’s representation of a client in a child custody and visitation modification matter. The client paid a $5,000.00 flat fee at the outset. Hiatt neglected to pursue the matter diligently and failed to maintain adequate communication with his client, who ultimately terminated Hiatt’s representation and retained other counsel. After the client discharged Hiatt, Hiatt failed to return the unearned portion of the fee and failed to cooperate with the client and his new counsel in transferring the file. Hiatt agreed that he committed multiple violations of Rule 1.3 (diligence) and Rule 1.4 (communication with client). He also agreed that he violated Rule 1.16 (termination of representation) in failing to return the unearned portion of the fee and in failing to cooperate with the transfer of the file to replacement counsel. Hiatt agreed to return $3000.00, representing the unearned portion of the fee, to the client. Hiatt stipulated to a public censure in the matter, which was approved by the Board of Professional Responsibility and submitted to the Court. In addition to receiving a public censure, Hiatt was ordered to pay an administrative fee in the amount of $750.00 and costs of $50.00 to the Wyoming State Bar.

[¶8]...