Summary 2013 WY 92

Summary of Decision July 31, 2013

Order Suspending Attorney from the Practice of Law

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. CLAY B. JENKINS, WSB #5-2249

Docket Number: D-13-0004

URL: http://www.courts.state.wy.us/Opinions.aspx

This matter came before the Court upon a “Report and Recommendation for Suspension,” filed herein July 11, 2013, by the Board of Professional Responsibility for the Wyoming State Bar, pursuant to Section 16 of the Disciplinary Code for the Wyoming State Bar (stipulated discipline). After a careful review of the Board of Professional Responsibility’s Report and Recommendation for Suspension and the file, this Court finds that the Report and Recommendation for Suspension should be approved, confirmed and adopted by the Court; and that the Respondent, Clay B. Jenkins, should be suspended from the practice of law for a period of one (1) year. It is, therefore,

ADJUDGED AND ORDERED that the Board of Professional Responsibility’s
Report and Recommendation for Suspension, 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

ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation for Suspension, Respondent Clay B. Jenkins shall be, and hereby is, suspended from the practice of law for a period of one (1) year from May 10, 2013; and it is further

ORDERED that Respondent shall comply with Section 22 of the Disciplinary Code for the Wyoming State Bar. That Section governs the duties of disbarred and suspended attorneys; and it is further

ORDERED that, pursuant to Section 26 of the Disciplinary Code of the Wyoming State Bar, Clay B. Jenkins shall pay the administrative fee of $500.00. Mr. Jenkins shall pay that amount to the Clerk of the Board of Professional Responsibility on or before October 31, 2013; and it is further

ORDERED that, pursuant to Section 4 of the Disciplinary Code for the Wyoming State Bar, this Order Suspending Attorney from the Practice of Law, along with the incorporated Report and Recommendation for Suspension, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

ORDERED that the Clerk of this Court shall docket this Order Suspending
Attorney from the Practice of Law, along with the Report and Recommendation for Suspension, as a matter coming regularly before this Court as a public record; and it is further

ORDERED that the Clerk of this Court cause a copy of the Order Suspending Attorney from the Practice of Law to be served upon Respondent Clay B. Jenkins.

DATED this 31st day of July, 2013.

*Justice Davis took no part in the consideration of this matter. Retired Justice Michael Golden participated by assignment.

Follow this link to read the full Report and Recommendation for Suspension: http://www.courts.state.wy.us/Opinions.aspx

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2011 WY 37

Summary of Order March 2, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Board of Professional Responsibility, Wyoming State Bar v. Anderson

Citation: 2011 WY 37

Docket Number: D-11-0001

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461789

Order of Interim Suspension

Pursuant to Section 17 of the Disciplinary Code for the Wyoming State Bar, Bar Counsel for the Wyoming State Bar filed, on February 4, 2011, a “Petition for Interim Suspension of Attorney.” The Court, after a careful review of the Petition for Interim Suspension, concludes that the petition for interim suspension should be granted and that Respondent should be suspended from the practice of law pending resolution of the formal charge that has been, or will be, filed against Respondent.

Summary 2011 WY 17

Summary of Decision February 4, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Wyoming Department of Transportation v. Potvin

Citation: 2011 WY 17

Docket Number: S-10-0125

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461726

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Reposndent): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General; and Jackson M. Engels, Assistant Attorney General.

Representing Appellee (Petitioner): Gerard R. Bosch and Mark J. Longfield, Law Offices of Jerry Bosch, Wilson, Wyoming.

Date of Decision: February 4, 2011

Facts: The Appellant challenges a district court order which reversed an order of an independent hearing examiner to the effect that Appellee was required to surrender his driver’s license because he refused to submit to a chemical test for the purpose of ascertaining if his blood alcohol/controlled substance content exceeds the statutory limit. The district court reversed the hearing examiner’s decision on the basis that WYDOT failed to present substantial evidence at the hearing to establish that the police officers had probable cause to believe that Appellee had been driving, or was in actual physical control, of a motor vehicle upon a public street or highway while under the influence of alcohol.

Issues: Whether there substantial evidence to support the hearing examiner’s finding that there was probable cause to arrest Appellee for driving while under the influence of alcohol.

Holdings: Given the entirety of the facts and circumstances called to the hearing examiner’s attention, there was substantial evidence to support his ultimate finding that the police had probable cause to contact Appellee and to question him about a hit and run accident and eventually to request that he voluntarily submit to a chemical breath or blood test, which he refused. Likewise, the record contains substantial evidence to support the hearing examiner’s findings that Appellee and his roommate were not credible witnesses. The hearing examiner’s conclusions were not arbitrary and capricious in light of the evidence presented.

The order of the district court must be reversed and determination made by the hearing examiner will be sustained. The matter is remanded to the district court with directions to the district court to further remand to the hearing examiner to accomplish this result.

J. Hill delivered the opinion for the court.

Summary 2010 WY 50

Summary of Decision issued April 22, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Board of Professional Responsibility, Wyoming State Bar v. William Daniel Elsom

Citation: 2010 WY 50

Docket Number: D-07-0004

Order Lifting Disciplinary Suspension and Order Denying Reinstatement to the Practice of Law

The matter came before the Court upon the “Supplemental Findings of Fact and Conclusions of Law” filed March 26, 2010, by the Board of Professional Responsibility for the Wyoming State Bar. In its supplemental findings, the Board of Professional Responsibility recommended that Elsom be reinstated to the practice of law. The Court agreed that Elsom satisfied the terms of his disciplinary suspension however, he has not resolved his CLE suspension.

The disciplinary action was lifted. Due to Elsom’s continuing suspension for failure to comply with the CLE requirements, he was restricted from being reinstated to the practice of law at this time.

The Orders can be found at the link below.

C.J. Voigt delivered the order for the court.

Link: http://tinyurl.com/263ea2r .

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summary 2009 WY 48

Summary of Decision issued April 7, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Board of Professional Responsibility, Wyoming State Bar v. Sue Davidson

Citation: 2009 WY 48

Docket Number: D-08-0003

Order Suspending Attorney from Practice of Law and Assessing Costs

The matter came before the Court upon a Report and Recommendation for Discipline filed September 19, 2008, by the Board of Professional Responsibility for the Wyoming State Bar. The Court reviewed the Board’s record and transcript of the hearing before the Board, read the parties’ briefs and heard oral argument. The Court concluded that Davidson violated the professional conduct rules by clear and convincing evidence as they relate to the allegation that Judge Arnold participated in improper ex parte communications with opposing counsel.

The Court ordered: That the Report and Recommendation be approved, confirmed and adopted. That Davidson be suspended from the practice of law for two months and that she pay to the Board, $6,676.67 plus $1,000.00 for an administrative fee.

C.J. Voigt delivered the order for the court.
J. Golden would have reduced the suspension to one month.
Judge Donnell sat in for J. Burke who recused himself in the matter.

Link: http://tinyurl.com/d99nc7 .

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summary 2007 WY 90

Summary of Decision issued May 30, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Peterson v. Wyoming DOT, Drivers’ License Division

Citation: 2007 WY 90

Docket Number: 06-209

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Petitioner): Mike Cornia, Evanston, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Assistant Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Issue: Whether the hearing examiner acted arbitrarily and capriciously in considering the breath test results.

Facts/Discussion: After being arrested for driving under the influence, the Wyoming DOT notified Peterson that his driver’s license would be suspended. Peterson requested and received a contested case hearing before the OAH who upheld the suspension. The district court also upheld the suspension.
Standard of Review: The Court reviewed the case as if it came directly from the administrative agency. Where both parties present evidence, the Court reviews the entire record to determine if the agency findings are supported by substantial evidence.
Peterson contended that because he was not strictly observed for fifteen minutes prior to having his breath analyzed for alcohol content, the hearing examiner should have excluded the breathalyzer test conducted at the police station. Wyo. Stat. Ann. § 31-6-105(a) sets forth the exclusive means and the mandatory procedure for determining an arrested suspect’s blood alcohol level. The Department of Health Rules and Regulations provides the subject must be observed for a minimum of fifteen minutes prior to testing to prevent residual mouth alcohol. The record showed that in compliance with the rule, the officer began observing Peterson at 1:25 am and continued to do so until at least 1:40 am. Because the first breath test occurred at 1:45 am, twenty minutes after the observation period began, Peterson contended he was not observed in accordance with the rules. The Court stated the record on appeal sufficiently established that Peterson was observed for the required amount of time. The machine was turned on, calibrated and relevant information entered between 1:39 and 1:45 am. The record did not indicate that the officer did not continue to observe Peterson while readying the machine. The Court noted that compliance does not require the officer to stare fixedly on the test subject.
The Court declined to adopt a strict compliance policy with the rules governing the administration of alcohol tests. Compliance is a question of fact to be decided under the circumstances of each case. The State’s prima facie showing of compliance with the regulation was sufficient.

Holding: The Court concluded that substantial evidence supported the hearing officer’s conclusion that the five minutes in question were allowable to prepare the machine and that the proposed suspension should be upheld.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/3yghaj .