Bd. of Prof'l Responsibility, Wyo. State Bar v. Hinckley

• Decision Date: 02 February 2022
• Docket Number: D-21-0003
• Citation: 2022 WY 18
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. BECKET BENEDICT HINCKLEY, WSB #6-3434, Respondent.
• Court: Wyoming Supreme Court

2022 WY 18

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. BECKET BENEDICT HINCKLEY, WSB #6-3434, Respondent.

No. D-21-0003

Supreme Court of Wyoming

February 2, 2022

Original Proceeding for Attorney Discipline

Representing Petitioner: Mark W. Gifford, Bar Counsel Wyoming State Bar.

Representing Respondent: Stephen H. Kline, Cheyenne, Wyoming.

Before FOX, C.J., and DAVIS ^{[*] [**]} , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ JUSTICE.

[¶1] The Wyoming State Bar (Bar) charged attorney Becket Benedict Hinckley (Mr. Hinckley) with violations of the Wyoming Rules of Professional Conduct for Attorneys at Law (Rule or Rules). A hearing panel from the Bar's Board of Professional Responsibility (BPR) conducted a hearing and submitted a Report and Recommendation for Disbarment pursuant to Wyoming Rule of Disciplinary Procedure (W.R.D.P.) 15(b)(3)(F).

JURISDICTION AND STANDARD OF REVIEW

[¶2] Wyoming statutes charge this Court with adopting rules establishing "practice and procedure for disciplining, suspending, and disbarring attorneys." Wyo. Stat. Ann. § 5-2-118(a)(iii) (LexisNexis 2021). Disciplinary proceedings are "necessarily incident to the inherent power of courts to control properly their own affairs." State Bd. of Law Examiners v. Brown, 53 Wyo. 42, 49, 77 P.2d 626, 628 (1938). As a result, this Court has "the power, the duty, and the corresponding jurisdiction to supervise the conduct of all Wyoming attorneys, each of whom is an officer of the court." Meyer v. Norman, 780 P.2d 283, 288 (Wyo. 1989).

[¶3] "The purposes of the state bar disciplinary procedures are to maintain the integrity of the bar, to prevent the transgressions of an individual lawyer from bringing its image into disrepute and to protect the public and the administration of justice." Bd. of Pro. Responsibility v. Richard, 2014 WY 98, ¶ 51, 335 P.3d 1036, 1051 (Wyo. 2014) (citations and quotation marks omitted). See also, ABA Standards for Imposing Lawyer Sanctions § 1.1 (ABA Standards). In disciplinary proceedings, the responsibility of this Court is not to punish, but to inquire into and gauge a lawyer's continued fitness to practice law. This inquiry is conducted with a view to safeguarding the interests of the public, the courts, and the legal profession. See ABA Standards, Methodology ("The purpose of the disciplinary proceeding is not punitive but to inquire into the fitness of the lawyer to continue in that capacity for the protection of the public, the courts, and the legal profession."); State ex rel. Okla. Bar Ass'n v. Wintory, 2015 OK 25, ¶ 15, 350 P.3d 131, 135 (Okla. 2015) ("The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession."). To this end, the Wyoming Supreme Court adopts and promulgates rules governing the professional conduct of attorneys, organizing the bar association, and establishing the procedure for attorney discipline. See Bd. of Pro. Responsibility v. Custis, 2015 WY 59, ¶ 18, 348 P.3d 823, 828 (Wyo. 2015) (citing § 5-2-118).

[¶4] The Bar, through its Bar Counsel, initiates attorney disciplinary proceedings by filing charges with the BPR. W.R.D.P. 13(a). The BPR then appoints a hearing panel to conduct a hearing and issue a report to this Court. W.R.D.P. 15(a)(2) ("Upon the filing of a formal charge, . . . the BPR Clerk (in consultation with the BPR Chair) shall appoint a Hearing Panel of three members of the BPR, two of whom shall be attorneys and one of whom shall be a non-attorney, for purposes of a hearing in the matter."); W.R.D.P. 15(b)(3)(F) ("If the Hearing Panel finds the charges have been proved by clear and convincing evidence and that public censure, suspension or disbarment is warranted, it shall issue a report and recommendation with its findings of fact, conclusions of law, and recommended discipline and file such report with the clerk of the Court."). When, as here, we receive such a report, W.R.D.P. 16(b) provides our standard of review: "The Court will give due consideration to the findings and recommendations of the Hearing Panel, but the ultimate judgment in proceedings under these rules is vested in the Court. Accordingly, the Court will examine the evidence, make findings, determine whether there has been an infraction of the Wyoming Rules of Professional Conduct, and impose the discipline which the Court considers appropriate." The Bar must prove violations of the Rules of Professional Conduct by clear and convincing evidence. W.R.D.P. 15(b). "The Court conducts a de novo review of all aspects of attorney discipline." Custis, ¶ 36, 348 P.3d at 832. Because the Court conducts a de novo determination in attorney discipline cases, it should not "adopt" BPR reports but make its own findings based on the record. We bear the ultimate responsibility for deciding whether misconduct has occurred and, if so, what discipline is warranted. Neither the BPR's findings of fact nor its view of the evidence or the credibility of witnesses binds this Court, although we give due consideration to those findings, if any. The same is true when the parties stipulate to misconduct and a recommendation for discipline. See State ex rel. Okla. Bar Ass'n v. Moon, 2012 OK 77, ¶ 6, 295 P.3d 1, 5 (Okla. 2012).

[¶5] The BPR's "Report and Recommendation" contains numerous findings of fact and conclusions of law. Some of those are supported by clear and convincing evidence, while some are not. Some are relevant to the charges; others are not. The Report and Recommendation of the BPR contains no legal analysis of the applicable Rules, nor does it specify which facts, if any, supported its findings. It contains no findings or comment on credibility. Our ability to give due consideration to the BPR's findings and conclusions is hampered by the report's lack of a detailed legal analysis linking the rules, applicable law, findings and legal conclusions, as we have done herein. Our preference is that future reports provide this type of analysis.

STATEMENT OF THE CASE

Charges

[¶6] Mr. Hinckley was a prosecutor in the Teton County and Prosecuting Attorney's Office. The Bar filed formal charges (in a document titled Amended Formal Charge) against Mr. Hinckley accusing him of violating the Wyoming Rules of Professional Conduct while prosecuting Joshua Black (Mr Black) for aggravated assault and battery of Mr. Black's girlfriend, Kelly Windsor-Denin (Ms. Windsor). The Bar's allegations against Mr. Hinckley were as follows:

a. Violation of Rule 1.3 by

i. "failing to file a response to defendant's motion to compel;"

ii. "failing to file a response to defendant's motion to restrict testimony;"

iii. "failing to comply with the [trial] [c]ourt's deadline for filing witness and exhibit lists and jury instructions;"

iv. [b]eing "chronically late in responding to motions;" and

v. "failing to perform an adequate investigation regarding the availability of Facebook and Verizon records before he made representations on those subjects to the [trial] [c]ourt."

b. Violation of Rule 3.2 by "failing to seek production of the victim's Verizon and Facebook records as ordered by the [trial] [c]ourt."

c. Violation of Rule 3.3(a) by "misrepresenting the extent of his efforts to obtain the Verizon and Facebook records."

d. Violation of Rule 3.4(c) by

i. "failing to comply with the [trial] [c]ourt's order granting defendant's motion to compel;" and

ii. "making inappropriate and prejudicial arguments during the trial."

e. "Violation of Rule 3.6(a) by disseminating a letter … to the (press)."

f. Violation of Rule 3.8 by "failure to take immediate action to preserve the Verizon and Facebook records."

g. Violation of Rule 3.8(e) by "dissemination of the letter to the (press)."

h. Violation of Rule 5.3 by "failure to confirm that law enforcement sent timely preservation letters to Verizon and Facebook."

i. Violation of Rule 8.4(d) by "conduct as set forth above (in the formal complaint)."

[¶7] W.R.D.P. 13(a) states: "A disciplinary proceeding shall be initiated with the filing with the BPR Clerk of a formal charge which shall set forth clearly and with particularity the grounds for discipline with which the respondent is charged and the conduct of the respondent which gave rise to those charges." (emphasis added). See also, In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968) (a lawyer is entitled to procedural due process in a disciplinary proceeding, including fair notice of the charges and an opportunity to be heard); Procedural Due Process Violations in Bar Disciplinary Proceedings, 22 J.Leg.Pro. 351, 354-55 (1998) (an attorney's right to due process in a disciplinary action may be violated by a complaint "so vague as to deny the attorney notice of the underlying charges") (citations omitted).

[¶8] The Colorado Supreme Court interpreted its corresponding disciplinary procedure rule as requiring the charge to "contain statements of both the disciplinary rules violated by the respondent and the facts underlying the violations." People v. Richards, 748 P.2d 341, 347 (Colo. 1987) (en banc). This approach is consistent with the due process required whenever someone's property interest in his or her vocation is challenged. Cf. Slagle v. Wyo. St. Bd. of Nursing, 954 P.2d 979, 982-83 (Wyo. 1998) (discussing the statutory and constitutional due process requirements that licensees be given notice of the "facts or conduct" which warrant interference with professional licenses).

[¶9] It is important to focus on the specificity requirement in W.R.D.P. 13(a) at the outset of...