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Board of Professional Responsibility v. Jenkins

Supreme Court of Wyoming

June 29, 2016

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
CLAY B. JENKINS, WSB # 5-2249, Respondent.

          ORDER OF SUSPENSION WITH PROBATION

          E. JAMES BURKE Chief Justice

         [¶1] This matter came before the Court upon an "Amended Report and Recommendation for Order of Suspension with Probation, " filed herein June 13, 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 Amended Report and Recommendation and the file, finds that the Amended Report and Recommendation should be approved, confirmed, and adopted by the Court, and that Respondent Clay B. Jenkins should be suspended (with probation) for his conduct. It is, therefore, [¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's "Amended Report and Recommendation for Order of Suspension with Probation, " 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, effective immediately, Clay B. Jenkins is suspended from the practice of law for six months, with that suspension stayed in favor of six months of probation. Such stay is conditioned on the following probationary terms: (1) Respondent shall remain compliant with the WPAP Monitoring Agreement; (2) Respondent shall remain compliant with the terms of his unsupervised probation in Sheridan County; and (3) Respondent shall commit no further violations of the Wyoming Rules of Professional Conduct; and it is further

         [¶4] ORDERED that the Wyoming State Bar may issue a press release consistent with the one set out in the Amended Report and Recommendation for Order of Suspension with Probation; and it is further

         [¶5] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary Procedure, Mr. Jenkins 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. Jenkins shall pay the total amount of $800.00 to the Wyoming State Bar on or before August 1, 2016; and it is further

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

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

         [¶8] ORDERED that the Clerk of this Court cause a copy of this Order of Suspension with Probation to be served upon Respondent Clay B. Jenkins.

         [¶9] DATED this 29th day of June, 2016.

         BEFORE THE SUPREME COURT STATE OF WYOMING

         In the matter of J. CRAIG ABRAHAM, WSB No. 5-2249, Respondent.

         BPR No, 2015-120

         June 13, 2016

         AMENDED REPORT AND RECOMMENDATION FOR ORDER OF SUSPENSION WITH PROBATION

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

         THIS MATTER came before the Board of Professional Responsibility on the 7th day of June, 2016, pursuant to the Court's Order of Remand dated May 10, 2016, for consideration of the Amended Stipulation for Suspension with Probation submitted pursuant to Rules 9 and 12 of the Wyoming Rules of Disciplinary Procedure, and the Board having reviewed the Amended Stipulation, the accompanying Amended Affidavit of Factual Basis and being fully advised in the premises, FINDS, CONCLUDES and RECOMMENDS as follows:

         Respondent has been licensed to practice law in the State of Wyoming since 1984, and has maintained a practice in Sheridan, Wyoming. Respondent has a history of substance abuse, which he has addressed with varying success over the years.

         In 2013, this Court suspended Respondent for a period of one year from May 10, 2013, based upon this Board's recommendation and Respondent's admission that he had violated Rule 1.1 (competence), Rule 1.3 (diligence) and Rule 1.4 (communication with client) in his handling of a divorce matter, and that he had violated Rule 8.4(b) (committing a criminal act that reflects adversely on a lawyer's fitness to practice) of the Wyoming Rules of Professional Conduct. The Board of Professional Responsibility approved the stipulation and recommended same to the Wyoming Supreme Court. On July 31, 2013, the Court issued an order suspending Respondent from the practice of law for a period of one year from May 10, 2013, the date of his interim suspension.

         On May 12, 2014, Respondent filed a petition for reinstatement with the Court. Upon review, Bar Counsel stipulated to Respondent's reinstatement. Upon the recommendation of this Board, the Court issued an order reinstating Respondent to the practice law effective July 2, 2014. Respondent thereafter resumed his private practice in Sheridan.

         On June 29, 2015, Respondent was arrested in Sheridan for Driving While Under the Influence and driving without an interlock device on his car. Respondent submitted to field sobriety tests and a breathalyzer test which revealed a .12% alcohol level. This was Respondent's fourth DWUI arrest. Respondent reported the arrest to Bar Counsel, who suggested that Respondent contact the Wyoming Professional Assistance Program (WPAP), submit to an evaluation, and follow WPAP's recommendations regarding treatment and monitoring. Bar Counsel told Respondent he would hold off on any disciplinary action until after judgement and sentence had been entered on the criminal charges pending against Respondent.

         On November 5, 2015, Respondent entered into a General Terms Monitoring Agreement and related agreements with WPAP, hereinafter referred to collectively as "the Monitoring Agreement." The duration of the Monitoring Agreement is five years unless modified in writing. Pursuant to the Monitoring Agreement, Respondent is required to provide 15 random observed urine drug screens annually and three Soberlink breath samples daily. Respondent is also required to participate in 12 AA meetings monthly and submit monthly self-reports.

         Respondent pled guilty to the charges brought as a result of his June 29, 2015, arrest. On February 18, 2016, Judgment and Sentence was entered. Respondent was sentenced to 180 days in jail (150 suspended), placed on two years unsupervised probation, and ordered to com- ply with my Monitoring Agreement. Respondent promptly provided a copy of the Judgment and Sentence to Bar Counsel and authorized WPAP to share information with Bar Counsel and with Probation and Parole.

         Respondent conditionally admitted that his conduct set forth above violated Rule 8.4(b) (committing a criminal act that reflects adversely on a lawyer's fitness to practice) of the Wyoming Rule of Professional Conduct and agreed to a six month suspension to be stayed, conditioned upon compliance with the following terms of probation pursuant to Rule 9(c) of the Wyoming Rules of Disciplinary Procedure:

1. During the period of probation, which shall be a six month probation to run concurrently with the suspension, Respondent will remain compliant with the Monitoring Agreement.
2. During the period of probation, Respondent will remain compliant with the terms of his unsupervised probation in Sheridan County.
3. During the period of probation, Respondent shall commit no further violations of the Wyoming Rules of Professional Conduct.

         Respondent understands and acknowledges that if, during the period of Respondent's probation, Bar Counsel receives information that any condition may have been violated, Bar Counsel may file a motion with the Board specifying the alleged violation and seeking an order requiring Respondent to show cause why the stay should not be lifted and the six month suspension activated for violation of the condition.

         ABA Sanction Standards

         The American Bar Association's "Standards for Imposing Lawyer Discipline" (hereafter referred to as the "ABA Standards") state, "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 properly to discharge their professional duties to clients, the public, the legal system, and the legal profession." ABA Standard 3.0 lists the factors to be considered in imposing a sanction after a finding of lawyer misconduct:

(a) the duty violated;
(b) the lawyer's mental state;
(c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.

         1. The Duty Violated

         Within the analytical framework of the ABA Standards, Respondent violated a duty owed to the public. Standard 5.1 sets forth the sanction guidelines for lawyers who demonstrate a failure to maintain personal integrity and is applicable to situations in which lawyers have committed a violation of Rule 8.4(b) ...


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