          IN THE SUPREME COURT, STATE OF WYOMING

                                    2016 WY 105

                                                            October Term, A.D. 2016

                                                                November 1, 2016

BOARD OF PROFESSIONAL
RESPONSIBILITY, WYOMING
STATE BAR,

Petitioner,
                                                D-16-0008
v.

ROBERT W. HIATT JR., WSB #
6-2951,

Respondent.

                         ORDER OF PUBLIC CENSURE

[¶1] This matter came before the Court upon a “Report and Recommendation for
Order of Public Censure,” filed herein October 18, 2016, by the Board of Professional
Responsibility for the Wyoming State Bar, pursuant to Rule 12 of the Wyoming Rules of
Disciplinary Procedure (stipulated discipline). The Court, after a careful review of the
Board of Professional Responsibility’s Report and Recommendation and the file, finds
that the Report and Recommendation should be approved, confirmed, and adopted by the
Court, and that Respondent Robert W. Hiatt, Jr. should be publicly censured for his
conduct. It is, therefore,

[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s
“Report and Recommendation for Order of Public Censure,” which is attached hereto and
incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted
by this Court; and it is further

[¶3] ADJUDGED AND ORDERED that Robert W. Hiatt, Jr. is hereby publicly
censured for his conduct, which is described in the Report and Recommendation for
Order of Public Censure. The Wyoming State Bar may issue a press release consistent
with the one set out in the Report and Recommendation for Order of Public Censure; and
it is further
[¶4] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary
Procedure, Mr. Hiatt shall reimburse the Wyoming State Bar the amount of $50.00,
representing the costs incurred in handling this matter, as well as pay the administrative
fee of $750.00. Mr. Hiatt shall pay the total amount of $800.00 to the Wyoming State
Bar on or before December 1, 2016; and it is further

[¶5] ORDERED that the Clerk of this Court shall docket this Order of Public Censure,
along with the incorporated Report and Recommendation for Order of Public Censure, as
a matter coming regularly before this Court as a public record; and it is further

[¶6] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary
Procedure, this Order of Public Censure, along with the incorporated Report and
Recommendation for Order of Public Censure, shall be published in the Wyoming
Reporter and the Pacific Reporter; and it is further

[¶7] ORDERED that the Clerk of this Court cause a copy of this Order of Public
Censure to be served upon Respondent Robert W. Hiatt, Jr.

[¶8]   DATED this 1st day of November, 2016.

                                                BY THE COURT:

                                                /s/

                                                E. JAMES BURKE
                                                Chief Justice
                                                                           IN THE SUPREME CUM
                                                                             STATE 0",-- WYOMING
                                                                                   FILED
                          BEFORE THE SUPREME COURT
                              STATE OF WYOMING                                   OCT 1 8 2016
In the matter of
ROBERT W. HIATT JR.,
WSB # 6-2951,                                               WSB No. 2016-035

       Respondent.


                         REPORT AND RECOMMENDATION
                         FOR ORDER OF PUBLIC CENSURE


       THIS MATTER came before the Board of Professional Responsibility on the 1 1'
                                                                                  'I day of

October, 2016, for consideration of the Stipulation for Public Censure submitted pursuant to

Rules 9 and 12 of the Wyoming Rules of Disciplinary Procedure, and the Board having reviewed

the Stipulation, the accornpanying affidavit of factual basis and being fully advised in the prem-

ises, FINDS, CONCLUDES and RECOMMENDS as follows.

       1.      Respondent was adrnitted to practice in Wyoming in 1998, and maintains a law

practice in Rock Springs, Wyoming.

       2.      This matter arises from a complaint which was submitted to Bar Counsel in Feb-

ruary 2016 by Respondent's former client, James M. Snyder ("JMS"). JMS was first represented

by Riverton lawyer, John Blomstrom, in a 2013 divorce action in Fremont County in which

JMS's wife was (and continues to be) represented by Collin Hopkins of Riverton ("Hopkins").

A stipulated decree of divorce was entered in August 2013 and Blomstrom subsequently with-

drew. Problems arose almost immediately with respect to JMS's visitation with the parties mi-

nor son. JMS is an oilfield worker and spends much of his time out of state. On October 31,

2013, Hopkins filed a motion to suspend visitation on behalf of the mother.
        3.      JMS hired Respondent in February 2014, signing a "Request for Contract for Le-

gal Services" re: "modification of decree of divorce change in custody within the legal systems

of the Ninth Judicial District Court, Fremont County, Wyoming." The document provided for a

"non-refundable flat fee of $5,000.00."

        4.      Respondent commenced efforts to earn the fee in early April 2014 when Re-

spondent filed a Petition to Modify Decree of Divorce and related pleadings on behalf of JMS.

In June 2014, Hopkins filed acceptance of service on behalf of the ex-wife. In July 2014, Hop-

kins filed an answer and counterclaim on behalf of the ex-wife; Respondent filed an answer to

counterclaim on behalf of JMS.

        5.      Nearly five months later, on December 24, 2014, Respondent filed a motion for

appointment of a Guardian ad Litem (GAL) for the minor son, along with a request for status

conference. A status conference was held on January 26, 2015. Judge Norman Young recom-

mended the appointment of Riverton lawyer, Aaron Vincent, to serve as the minor child's GAL.

However, Respondent failed to follow through on getting Vincent appointed as GAL.

       6.       Between February 2014 and March 2015 there were numerous ernails exchanged

by JMS and Respondent regarding various subjects, with JMS becoming increasingly agitated as

time dragged on with no apparent progress on the modification petition for which JMS hired Re-

spondent and for which Respondent accepted a $5,000.00 "non-refundable flat fee."

       7.      In April 2015, JMS hired Thermopolis lawyer, Hope Gebes, to represent him.

Gebcs wrote to Respondent requesting the file and a refund of the unearned portion of the $5,000

retainer. Respondent refused to release the file until JMS provided written notification of termi-

nation. On June 1, 2015, JMS sent an email to Respondent confirming termination and requested

that the file be sent to Gebes.




                                                2
       8.      On July 7, 2015, Respondent filed a motion to withdraw. Respondent's motion

was granted two days later.

       9.      On July 13, 2015, Gebes wrote to Respondent, again requesting the file and a re-

fund ofthe balance of the retainer. Respondent did not respond.

       10.     On August 4, 2015, JMS sent the following email to Respondent: "Mr. Hiatt this

is James Snyder my new attorneys have repeatedly asked you for all my paperwork and the rest

of my refund from the retainer I gave you in full, so now I'm asking you to send these things to

my attorneys asap." Respondent did not respond.

       11.     Respondent has conditionally adrnitted to multiple violations of Rule 1.3 (dili-

gence) and 1.4 (communication with client) of the Wyoming Rules of Professional Conduct. Re-

spondent has also conditionally admitted to multiple violations of Rule 1.16(d)(termination of

representation) in not responding to numerous requests from JMS and his new counsel following

Respondent's discharge by JMS, and in not refunding the unearned portion of the $5,000.00 fee.

As part of the stipulated resolution of this matter, Respondent has agreed to refund $3,000.00 to

JMS.

                                    ABA Sanction Standards

       12.    Respondent's violations of Rules 1.3 and 1.4 call into play Standard 4.4, "Lack of

Diligence," of the ABA Standards for Imposing Lawyer Sanctions. Standard 4.4 sets forth the

following guidelines:

       4.41   Disbarment is generally appropriate when:
              (a) a lawyer abandons the practice and causes serious or potentially seri-
                  ous injury to a client; or
              (b) a lawyer knowingly fails to perform services for a client and cause se-
                  rious or potentially serious injury to a client; or
              (c) a lawyer engages in a pattern of neglect with respect to client matters
                  and causes serious or potentially serious injury to a client.
       4.42   Suspension is generally appropriate when:



                                               3
       (a)a lawyer knowingly fails to perform services for a client and causes in-
          jury or potential injury to a client, or
       (b) a lawyer engages in a pattern of neglect with respect to client matters
           and causes injury or potential injury to a client.
4.43   Reprimand [i.e., "public censure" under Rule 9(a)(3) of the Rules of Dis-
       ciplinary Procedure] is generally appropriate when a lawyer is negligent
       and does not act with reasonable diligence in representing a client, and
       causes injury or potential injury to a client.
4.44   Admonition [i.e., "private reprimand" under Rule 9(a)(4) of the Rules of
       Disciplinary Procedure] is generally appropriate when a lawyer is negli-
       gent and does not act with reasonable diligence in representing a client,
       and causes little or no actual or potential injury to a client.

13.    Respondent's violation of Rule 1.16 implicates Standard 7.0, which provides:

Absent aggravating or mitigating circumstances, upon application of the factors
set out in Standard 3.0, the following sanctions are generally appropriate in cases
involving false or misleading communication about the lawyer or the lawyer's
services, improper communication of fields of practice, improper solicitation of
professional employment from a prospective client, unreasonable or improper
fees, unauthorized practice of law, improper withdrawal from misrepresentation,
or failure to report professional misconduct.

7.1    Disbarment is generally appropriate when a lawyer knowingly engages in
       conduct that is a violation of a duty owed as a professional with the intent
       to obtain a benefit for the lawyer or another, and causes serious or poten-
       tially serious injury to a client, the public or the legal system.
7.2    Suspension is generally appropriate when a lawyer knowingly engages in
       conduct that is a violation of a duty owed as a professional and causes in-
       jury or potential injury to a client, the public, or the legal system.
7.3    Reprimand is generally appropriate when a lawyer negligently engages in
       conduct that is a violation of a duty owed as a professional and causes in-
       jury or potential injury to a client, the public, or the legal system.
7.4.   Admonition is generally appropriate when a lawyer engages in an isolated
       instance of negligence that is a violation of a duty owed as a professional,
       and causes little or no actual or potential injury to a client, the public, or
       the legal system.

14.    ABA Standard 9.0, entitled "Aggravation and Mitigation," provides as follows:

9.1     Generally
       After misconduct has been established, aggravating and mitigating cir-
cumstances may be considered in deciding what sanction to impose.
9.2     Aggravation




                                         4
   9.21   Definition. Aggravation or aggravating circumstances are any consid-
          erations or factors that may justify an increase in the degree of disci-
          pline to be imposed.
    9.22 Factors which may be considered in aggravation. Aggravating factors
          include:
         (a) prior disciplinary offenses;
         (b) dishonest or selfish motive;
         (c) a pattern of misconduct;
         (d) multiple offenses;
         (e) bad faith obstruction of the disciplinary proceeding by intentional-
              ly failing to comply with rules or orders ofthe disciplinary agency;
         (f) submission of false evidence, false statements, or other deceptive
              practices during the disciplinary process;
         (g) refusal to acknowledge wrongful nature of conduct;
         (h) vulnerability of the victim;
         (i) substantial experience in the practice of law;
         (j) indifference in making restitution; and
         (k) illegal conduct, including that involving the use of controlled sub-
              stances.
9.3     Mitigation.
    9.31 Definition. Mitigation or mitigating circumstances are any considera-
          tions or factors that may justify a reduction in the degree of discipline
          to be imposed.
    9.32 Factors which may be considered in mitigation. Mitigating factors in-
          clude:
         (a) absence of a prior disciplinary record;
         (b)absence of a dishonest or selfish motive;
         (c) personal or emotional problems;
         (d) timely good faith effort to make restitution or to rectify conse-
              quences of misconduct;
         (e)full and free disclosure of disciplinary board or cooperative attitude
              toward proceedings;
         (f) inexperience in the practice of law;
         (g)character or reputation;
         (h)physical disability;
         (i) mental disability or chemical dependency including alcoholism or
              drug abuse when:
             (1) there is medical evidence that the respondent is affected by a
                  chemical dependency or mental disability;
             (2) the chemical dependency or mental disability caused the mis-
                  conduct;
             (3) the respondent's recovery from the chemical dependency or
                  mental disability is demonstrated by a meaningful and sus-
                  tained period of successful rehabilitation; and
             (4) the recovery arrested the misconduct and recurrence of that
                  misconduct is unlikely.



                                        5
                   (j) delay in disciplinary proceedings;
                   (k)imposition of other penalties or sanctions;
                   (1) remorse; and
                  (m)remoteness of prior offenses.
               9.4       Factors Which Are Neither Aggravating nor Mitigating.
               The following factors should not be considered as either aggravating nor
        mitigating:
                   (a) forced or compelled restitution;
                   (b) agreeing to the client's demand for certain improper behavior or result;
                   (c) withdrawal of complaint against the lawyer;
                  (d) resignation prior to completion of disciplinary proceedings;
                   (e) complainant's recommendation as to sanction; and
                   (f) failure of injured client to complain.

        15.     In Respondent's case, aggravating factors include:(1) a pattern of misconduct;(2)

multiple offenses; and (3) substantial experience in the practice of law. However, there are sig-

nificant mitigating factors, including:(1) absence of a prior disciplinary record and (2) refund of

a substantial portion of the fee to the client.

        16.     Respondent and Bar Counsel agree and stipulate that a public censure is an ap-

propriate sanction for Respondent's misconduct, and the Board finds that a public censure is ap-

propriate under the foregoing facts. In the event that the Court issues an Order of Public Censure

in accordance herewith, Bar Counsel and Respondent have agreed to 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. Af-
       ter 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 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 $3,000.00, 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 addi-




                                                  6
       tion 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.

       For the foregoing reasons, the Board of Professional Responsibility recommends that the

Court issue an Order of Public Censure in accordance with the terms of this report and recom-

mendation.

      DATED this      /2-    day of October, 2016.




                                            Ju     .W. Studer, Chair
                                            Board of Professional Responsibility
                                            Wyoming State Bar




                                              7
