BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
ROBERT W. HIATT, JR., WSB # 6-2951, Respondent.
ORDER OF 30-DAY SUSPENSION
JAMES BURKE Chief Justice
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.
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?
is the appropriate discipline?
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.
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):
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.
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.
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
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.
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. 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:
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.
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
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
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.
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.
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.
Despite his September indication to his client that they
would try to proceed without a GAL, in his October 17, 2016
letter to Mr. Pineda (responding to Mr. Pineda's August
16 letter regarding the interrogatory confusion), Mr. Hiatt
wrote, "Additionally, we need a decision if we are going
to do a GAL (we still prefer Tim [Eagler]) or if we can just
set this for a final hearing." Mr. Pineda did not
respond to this letter, and there is nothing in the record to
indicate that Mr. Hiatt followed up with that communication.
Mr. Pineda testified that generally the party with "the
more urgent issue, " in this case, Mr. Dudzik (because
he was seeking the change in custody), would carry the
"burden to file the motion and get the process
going" to have a GAL appointed. That was never
From October through early November 2016, Mr. Hiatt and Mr.
Dudzik exchanged several emails discussing potential changes
in child support based upon a decrease in Mr. Dudzik's
income and job changes for Mother. On November 30, 2016, Mr.
Dudzik emailed Mr. Hiatt asking, "Anything new?"
Mr. Hiatt did not respond. On December 6, 2016, Mr. Dudzik
again emailed Mr. Hiatt, "Nothing from [B]obby yet? All
I see is them delaying more and more." Mr. Hiatt
responded, "Nothing from anyone." Mr. Dudzik
replied, "Anything you can do to try to get something
going? The no response by them for months at a time is pretty
old." Mr. Hiatt did not respond.
The record reveals no communications between Mr. Hiatt and
Mr. Dudzik and no work performed by Mr. Hiatt between
December 6, 2016 and February 8, 2017. On February 8, 2017,
Mr. Dudzik sent the following email to Mr. Hiatt:
Don't you think this has been going on long enough? It
has been months since anything has happened on Bobby's
end. Can we write him a letter? Reach out to the courts
saying we're not getting a response? Anything?
Again, Mr. Hiatt did not respond. Mr. Dudzik testified that
he called Mr. Hiatt on February 15, 2017, and left a
voicemail asking Mr. Hiatt to return his call as soon as
possible. As of February 20, 2017, Mr. Dudzik still had not
heard from Mr. Hiatt, so he sent Mr. Hiatt a letter
terminating his representation:
Dear Mr. Hiatt:
I am writing to inform you that I am no longer seeking your
counsel in the matter of my child custody case. The legal
relationship has been terminated, effective immediately.
You have been my attorney for more than eleven months and to
date I have spent $3, 000 and have seen very little to no
progress. I have emailed as recently as February 8, 2017 to
once again receive no response. I followed up with a phone
call on February 15, 2017 and to no avail had to leave a
message and have not received a call back or email. I feel
you have been completely uninvolved in this case and you have
put it on the backburner.
Due to my desire to protect my child, I felt it necessary to
obtain your counsel to fight for my desires, which has not
happened in a timely manner. I am requesting for you to send
my complete file to [Mr. Dudzik's address]. I am also
seeking FULL reimbursement of the balance. I feel this is
reasonable because all we have done is file a limited amount
of paperwork and exchange a few emails between yourself and
the other party's counsel. I also feel that because of
your lack of effort on my behalf over the last eleven months,
I have likely lost any chance of winning my case.
I am requesting to have my file and reimbursed fee of $3, 000
in my possession no later than the end of business day on
February 28, 2017.
On February 27, 2017, Mr. Hiatt responded:
I received your letter on Friday and called and left a
message. Your case is not on the back burner. As you are
aware, [J]udge James will not hold a hearing until a GAL has
done something regarding this matter.
There are a very limited number of practitioners in this area
that accept [GAL] work. I have spoken with them all and to
this point, no one has committed to accepting the
appointment. However, on Saturday, I heard back from an
attorney I had approached before, who indicated he now has
time in his work schedule to get going as a [GAL]. The terms
would be for both sides to deposit $1000.00 and schedule
meetings with him.
He is willing to accept your case and [B]obby [Pineda] has
already approved the selection in past conservations [sic],
so if you indicate to proceed, it can. I am willing to keep
you as a client and see this matter through. You know how
much time and effort I have put in so far getting all the
initial work although [sic] the complete discovery process.
Everything has been done that can be, except for a final
court hearing date and [GAL] report, neither of which I have
any control over. It is disingenuous of you to attempt to
claim that I have "filed a limited amount of paperwork
and exchanged a few emails". I have kept a copy of all
communications between us including cell messages and texts
and emails. All that aside, I am still willing to keep you
on, and protect your ability to proceed without being
disadvantaged by attempting to proceed pro se.
Bobby has indicated that you have contacted him, indicating
that you are going to proceed Pro Se, that is a big mistake
unless you are just willing to settle for shared custody now.
Let me know right away what you want to do. I need to file
the motion and order appointing so we can lock this in, but
it is up to you.
Mr. Dudzik responded the next day with an email questioning
the timing of a GAL's "sudden" availability
after "months" of no progress. Mr. Dudzik commented
that "[w]ith it almost being a year in, I see no
possibility of me getting full custody anymore. . . . So, I
don't see any use in hiring a GAL at this point."
Mr. Dudzik informed Mr. Hiatt that he had become aware of his
November public censure, that he was discouraged, and would
not be moving forward with Mr. Hiatt as his attorney.
Finally, Mr. Dudzik asked for a refund of the $3, 000 fee and
for a copy of his file. Mr. Hiatt responded with a letter
dated the same day:
I received your email response to my letter dated January 27,
2017. It is clear that there has been a breakdown of the
contracted attorney-client relationship. It is also clear
that the real reason your decision is based on assumptions
you are making concerning my public censure that you have no
knowledge about. It is also clear that you have not been
listening to the legal advice and guidance I have provided
through out [sic] your representation concerning the state of
the law and shared custody, from your comments in your
I need to file a motion to withdraw to formally get
permission from the court to be let out of your case, which
will end the representation.
I have the same paper file you have as you have [sic]. I have
provided copies throughout the representation to you of every
filing and correspondence between our side and Bobby Pineda
representing [Mother]. You provided any and all information
used to answer and provided discovery, so I am at a loss to
know why you keep stating to send "your" file to
Please refer to your contract to understand that you are not
due a refund. You have created a situation where I can no
longer represent you which is grounds to terminate our
written agreement in and of itself. Please refer to paragraph
numbered 8 of the contract which state [sic] "I agree
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." You have
been in violation of the agreement due to lack of payment of
the contract sum agreed to on 3/2/216 [sic], of which you did
not complete until after I wrote you a letter dated August
26, 2016 siting [sic] withdrawal by September 2, 2016 as a
consequence of continued non-payment. I [sic] took you five
months to pay an agreement you signed in March which took the
final warning about non-cooperation to get the bill paid. I
will send you a copy of the motion and order of withdrawal.
You are now pro se, with full acknowledgement and acceptance
of any risk, of all that means [sic].
The district court granted Mr. Hiatt's motion to withdraw
on March 7, 2017. Mr. Dudzik communicated directly with Mr.
Pineda and obtained a modification order granting him liberal
visitation and reducing his child support by over $150.00 per
On March 10, 2017, Mr. Dudzik submitted a complaint regarding
Mr. Hiatt to the office of Bar Counsel, and on August 23,
2017, following an investigation, Bar Counsel filed a Formal
Charge against Mr. Hiatt with the BPR. The charge alleged
that Mr. Hiatt violated Rules 1.3, 1.4, 1.5, 1.15 and 1.16 of
the Wyoming Rules of Professional Conduct. After a hearing,
the BPR concluded that Bar Counsel had carried his burden of
proving by clear and convincing evidence that Mr. Hiatt
violated Rules 1.3, 1.4, 1.5 and 1.16, but that the alleged
violation of Rule 1.15 had not been proven by clear and
convincing evidence. The BPR recommended that Mr. Hiatt
receive public censure, refund $1, 150.00 of Mr. Dudzik's
fee, and pay a $750.00 administrative fee, plus $3, 674.39 in
certified costs, to the Wyoming State Bar. Bar Counsel
objects to the BPR's recommendation, arguing that the BPR
failed to properly apply factors set forth in the ABA
Standards for Imposing Lawyer Sanctions, and suggesting that
a 30-day suspension would be the appropriate discipline under
the circumstances. Mr. Hiatt did not file a response.
"The purposes of the state bar disciplinary procedure
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 Prof'l Responsibility v. Richard, 2014 WY
98, ¶ 51, 335 P.3d 1036, 1051 (Wyo. 2014) (citing
Bd. of Prof'l Responsibility v. Casper, 2014 WY
22, ¶ 7, 318 P.3d 790, 793 (Wyo. 2014); Bd. of
Prof'l Responsibility v. Davidson, 2009 WY 48,
¶ 17, 205 P.3d 1008, 1015 (Wyo. 2009); In re
Clark, 613 P.2d 1218, 1221 (Wyo. 1980)). "The BPR
is an ancillary body structured by the Court and has no
independent power, jurisdiction, or authority other than that
specifically delegated to it in accordance with" the
Rules of Disciplinary Procedure. Rule 16(b), Wyoming Rules of
Disciplinary Procedure. In attorney disciplinary proceedings,
this Court "will give due consideration to the findings
and recommendations of the BPR, but the ultimate judgment in
[disciplinary] proceedings . . . is vested in the
Court." Id. Accordingly, this Court makes its
own determination of appropriate discipline, basing its
decision upon the evidence presented to the BPR. Bd. of
Prof'l Responsibility v. Custis, 2015 WY 59, ¶
19, 348 P.3d 823, 829 (Wyo. 2015); Casper, ¶ 8,
318 P.3d at 793-94.
Membership to the bar is by petition to the Wyoming Supreme
Court. Wyo. Stat. Ann. § 33-5-104 (LexisNexis 2013). The
Disciplinary Code for the Wyoming State Bar, § 1(a),
provides that attorneys are subject to the exclusive
disciplinary jurisdiction of this Court and the BPR.
"Disciplinary proceedings are 'necessarily incident
to the inherent power of courts to control properly their own
affairs.'" Richard, 2014 WY 98, ¶ 52,
335 P.3d at 1052 (quoting State Bd. of Law Examiners v.
Brown, 53 Wyo. 42, 49, 77 P.2d 626, 628 (Wyo. 1938)).
"The Board acts as an arm of this Court in taking
evidence and making findings and recommendations to this
Court." And, "[a]lthough we give due consideration
to the Board's findings and recommendations, the
'ultimate judgment in these cases is vested in the
Court.'" Id. (quoting Casper, 2014
WY 22, ¶ 8, 318 P.3d at 793-94 and citing Mendicino
v. Whitchurch, 565 P.2d 460, 466 (Wyo. 1977)); see
also Davidson, 2009 WY 48, ¶ 1, 205 P.3d at 1012.
We begin with an inquiry regarding whether the record before
the BPR contains clear and convincing evidence establishing
the charges against Mr. Hiatt. We ...