Board of Professional Responsibility, Wyoming State Bar v. Clay B. Jenkins, WSB 5-2249 ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 21October Term, A.D. 2016
March 1, 2017
BOARD OF PROFESSIONAL
RESPONSIBILITY, WYOMING
STATE BAR,
Petitioner,
D-16-0002
v.
CLAY B. JENKINS, WSB # 5-2249,
Respondent.
ORDER EXTENDING PERIOD OF SUSPENSION WITH PROBATION
[¶1] This matter came before the Court upon a “Report and Recommendation for
Order Extending Period of Suspension with Probation,” filed herein February 17, 2017,
by the Board of Professional Responsibility for the Wyoming State Bar. On June 29,
2016, this Court entered an “Order of Suspension with Probation,” which suspended
(with probation) Respondent from the practice of law for a period of six months. Board
of Professional Responsibility v. Jenkins, 2016 WY 64, 376 P.3d 477 (Wyo. 2016). Now,
after a careful review of the Board of Professional Responsibility’s Report and
Recommendation for Order Extending Period of Suspension with Probation and the file,
the Court finds that the Report and Recommendation should be approved, confirmed, and
adopted by the Court, and that Respondent, Clay B. Jenkins, should be suspended (with
probation) for an additional six months. It is, therefore,
[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s
“Report and Recommendation for Order Extending Period 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 December 30, 2016, 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 and the recommendations of his therapist; (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 Clerk of this Court shall docket this Order Extending Period
of Suspension with Probation, along with the incorporated Report and Recommendation
for Order Extending Period of Suspension with Probation, as a matter coming regularly
before this Court as a public record; and it is further
[¶5] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary
Procedure, this Order Extending Period of Suspension with Probation, along with the
incorporated Report and Recommendation for Order Extending Period of Suspension
with Probation, shall be published in the Wyoming Reporter and the Pacific Reporter;
and it is further
[¶6] ORDERED that the Clerk of this Court cause a copy of this Order Extending
Period of Suspension with Probation to be served upon Respondent, Clay B. Jenkins.
[¶7] DATED this 1st day of March, 2017.
BY THE COURT:*
/s/
E. JAMES BURKE
Chief Justice
*Justice Davis took no part in the consideration of this matter.
BEFORE THE SUPREME COURT
STATE OF WYOMING
IN THE SUPREME COURT
STATE OF WYOMING
FILED
In the matter of )
FEB 1 7 2017
CLAYB. JENKINS, )
WSB No. 5-2249, ) CAROL Ti-r PSON, CLERK
) D-16-0002
by CHEF DEPUTY
Respondent. )
REPORT AND RECOMMENDATION FOR ORDER
EXTENDING PERIOD OF SUSPENSION WITH PROBATION
THIS MATTER came before the Board of Professional Responsibility on the 14th day of
February, 2017, for consideration of the stipulated motion to extend the teiiii of Respondent's
Suspension with Probation, and the Board having reviewed the Stipulation, the accompanying
Affidavit of Factual Basis and being fully advised in the premises, FINDS and RECOMMENDS
as follows:
Respondent has been licensed to practice law in the State of Wyoming since 1984, and
has maintained a law practice in Sheridan, Wyoming. Respondent has a history of substance
abuse, which he has addressed with varying success over the years. Respondent's most recent
substance-related arrest occurred in Sheridan in June 2015, and was resolved with Respondent's
plea of guilty to DUI charges brought in the Circuit Court for the Fifth Judicial District. On
February 18, 2016, Judgment and Sentence was entered by Circuit Court Judge Shelley Cundiff.
Respondent was sentenced to 180 days in jail (150 days suspended), placed on two years unsu-
pervised probation, and ordered to comply with a Monitoring Agreement which Respondent had
voluntarily entered into with Wyoming Professional Assistance Program (WPAP). 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.
Following entry of Judgment and Sentence, discussions between Respondent and Bar
Counsel culminated in a stipulated motion for a six month suspension to be stayed in favor of
six months of probation. On June 29, 2016, the Wyoming Supreme Court issued an Order of
Suspension with Probation which approved this Board's Amended Report and Recommendation
for Order of Suspension with Probation. The Court's order provided, in pertinent part:
[E]ffective 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 ***"
Although Respondent has been generally compliant with the November 15, 2015, Moni-
toring Agreement, Respondent had one positive Soberlink breath test on Saturday, March 5,
2016, prior to entry of the June 29, 2016, Order of Suspension with Probation. The positive
sample was given at 9:17 a.m. Respondent provided a negative sample at 2:09 p.m. Respond-
ent also provided a urine screen on March 7, 2016, which returned negative for alcohol metabo-
lites. Respondent discussed this incident with John Ordiway, WPAP's Clinical Director, and
agreed to schedule counseling regarding the incident. Mr. Ordiway did not recommend any
changes to Respondent's monitoring program as a result of the incident. At the time the Board
approved the stipulated motion for suspension with probation, and at the time the Court issued
the Order of Suspension with Probation on June 29, 2016, all other breath and urine drug
screens had tested negative.
According to regular reports provided to Bar Counsel by WPAP,Respondent maintained
his sobriety throughout his six month suspension with probation, until late December 2016. Re-
2
spondent visited his mother and siblings in Northfield, Minnesota from December 15, 2016, to
January 4, 2017. During that visit, Respondent had several positive and missed Soberlink tests.
These were reported to Bar Counsel via a January 4, 2017, letter from Candice Cochran, WPAP
Executive Director, stating, "During the Christmas holiday, Mr. Jenkins had numerous positive
and rnissed Soberlink tests. John Ordiway, MS, LPC, LAT [WPAP's Clinical Director] is at-
tempting to reach Clay to discuss these positives. We will be submitting a formal non-
compliance letter when that contact has been made."
By letter dated January 26, 2017, Ms. Cochran provided Bar Counsel with details re-
garding Respondent's lapse during his visit to Minnesota. Ms. Cochran reported that Respond-
ent was meeting with his therapist, Judee Anderson, LAT, LPC, LAC, and that Ms. Anderson
would be sending treatment recommendations.
By letter dated February 2, 2017, Ms. Cochran informed Bar Counsel that Ms. Ander-
son's treatment recommendations had been received and that WPAP supports the following
recommendations from Ms. Anderson:
1. Increase Respondent's individual therapy to bi-weekly at a minimum
2. Continued use of Soberlink monitoring
3. Continued attendance at AA
On February 10, 2017, Respondent and Bar Counsel met with Judge Cundiff and report-
ed Respondent's Christmas holiday lapse. Judge Cundiff was inforrned that Bar Counsel and
Respondent proposed to submit a stipulated motion to the Board extending Respondent's sus-
pension with probation for an additional six months. Judge Cundiff was supportive of the pro-
posal, and stated that Respondent has been doing well and is always a pleasure to have in her
court.
Accordingly, Bar Counsel and Respondent proposed and stipulated that Respondent's
period of suspension be extended for an additional six months, beginning December 30, 2016,
3
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 Moni-
toring Agreement and the treatment recommendations of Respondent's therapist and
WPAP.
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 viola-
tions ofthe 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 suspen-
sion activated for violation ofthe condition.
Respondent and Bar Counsel agree and stipulate that Respondent is unlikely to harm the
public during the period of probation and can be adequately supervised; that Respondent is able
to perform legal services and is able to practice law without causing the courts or the profession
to fall into disrepute; and that Respondent has not committed acts warranting disbarment. The
parties further agree and stipulate that the probation shall be for six months, to run concurrently
with the period of suspension. The Board finds that these stipulations are reasonable and sup-
ported by the record.
For the reasons stated in the Stipulation and based on the facts and admissions in Re-
spondent's Affidavit, the Board recommends that the Wyorning Supreme Court issue an order
4
for an additional six month suspension commencing December 30,2016,to be stayed pursuant to
a concurrent, six month probation in accordance with the terms set forth above.
DATED this 13 day of February, 2017.
J A.W. Studer, Chair
Board ofProfessional Responsibility
Wyoming State Bar
5