[Cite as Disciplinary Counsel v. Lape, 130 Ohio St.3d 273, 2011-Ohio-5757.]
DISCIPLINARY COUNSEL v. LAPE.
[Cite as Disciplinary Counsel v. Lape, 130 Ohio St.3d 273, 2011-Ohio-5757.]
Attorneys—Misconduct—Neglect of legal matter—Failure to return clients’
property—Failure to cooperate in disciplinary investigation—Stayed six-
month suspension.
(No. 2011-1024—Submitted August 8, 2011—Decided November 10, 2011.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-050.
__________________
Per Curiam.
{¶ 1} Respondent, Lynn Ann Lape of Cincinnati, Ohio, Attorney
Registration No. 0068728, was admitted to the practice of law in Ohio in 1997.
We suspended Lape’s license in November 2009 for her failure to register for the
2009/2011 attorney-registration biennium. In re Attorney Registration Suspension
of Lape, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256. Her
registration was reinstated in December 2009. In re Reinstatement of Lape, 126
Ohio St.3d 1603, 2010-Ohio-4979, 935 N.E.2d 48. In June 2010, relator,
Disciplinary Counsel, filed a complaint charging Lape with violations of the Ohio
Rules of Professional Conduct arising from her neglect of a client’s bankruptcy
matter, failure to safeguard and return that client’s property, and failure to
cooperate in the ensuing disciplinary investigation.
{¶ 2} Although relator’s complaint was served by certified mail on June
15, 2010, at the address Lape has registered with the Office of Attorney Services,
Lape did not file a timely answer. On November 9, 2010, relator filed a motion
for default supported by documentary evidence, and on November 19, 2010, Lape
answered the complaint.
SUPREME COURT OF OHIO
{¶ 3} The parties submitted stipulated findings of fact and misconduct,
jointly recommended a six-month stayed suspension, and waived an evidentiary
hearing. The panel and board have adopted these stipulations of fact and
misconduct, as well as the jointly recommended sanction. We adopt the board’s
report and suspend Lape from the practice of law in Ohio for six months, all
stayed on conditions.
Misconduct
{¶ 4} The parties have stipulated and the board has found that Mr. and
Mrs. Mark Timerding retained Lape to represent them in a bankruptcy action and
provided Lape with various documents, including life insurance policies,
mortgage information, and approximately 12 savings bonds worth at least $1,000.
{¶ 5} The Timerdings’ bankruptcy petition was filed in August 2008,
and the discharge entry was filed on November 26, 2008. Following the
discharge, Mr. Timerding had a number of questions, but Lape would not answer
his telephone calls or e-mails. Nor did she respond to Mr. Timerding’s repeated
requests that she return the couple’s original documents to them.
{¶ 6} In February 2009, Mr. Timerding filed a grievance with relator.
Although Lape’s office staff signed for three certified letters of inquiry from
relator, Lape stated that she never saw the letters, and she did not respond to the
investigation.
{¶ 7} After Lape was personally served with a subpoena to appear for
deposition, she appeared at relator’s office and was deposed. Lape reported that
she had lost the Timerdings’ file. She agreed to answer their questions about their
bankruptcy and assist them in replacing the savings bonds. Lape never contacted
the Timerdings after her deposition. Although she did not act promptly after her
deposition, the Timerdings did eventually receive replacement bonds from the
United States Treasury Department.
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January Term, 2011
{¶ 8} Lape did not avail herself of an opportunity to respond to relator’s
notice of intent to file a formal complaint, although she personally signed for the
certified letter. Nor did she timely file an answer to the formal disciplinary
complaint. Despite having received personal service of a draft copy of relator’s
motion for default on November 3, 2010, Lape did not take any action until
November 10, 2010, when she received a time-stamped copy of the default
motion and called relator.
{¶ 9} The parties have stipulated, the board has found, and we agree that
based upon these facts, Lape has violated Prof.Cond.R. 1.3 (requiring a lawyer to
act with reasonable diligence in representing a client), 1.15 (requiring a lawyer to
preserve the identity of client funds and property and promptly deliver funds or
other property that the client is entitled to receive), 1.16(d) (requiring a lawyer
withdrawing from representation to take steps reasonably practicable to protect a
client’s interest), and 8.1(b) (prohibiting a lawyer from knowingly failing to
respond to a demand for information by a disciplinary authority during an
investigation) and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a
disciplinary investigation).
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
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SUPREME COURT OF OHIO
{¶ 11} As a mitigating factor, the parties have stipulated that Lape does
not have a prior disciplinary record, see BCGD Proc.Reg. 10(B)(2)(a), but she
was suspended in November 2009 for failing to comply with attorney-registration
requirements, and that suspension may be considered as an aggravating factor.
See BCGD Proc.Reg. 10(B)(1)(a); see also Disciplinary Counsel v. Mitchell, 124
Ohio St.3d 266, 2010-Ohio-135, 921 N.E.2d 634, ¶ 8, and Akron Bar Assn. v.
Paulson, 112 Ohio St.3d 334, 2006-Ohio-6678, 859 N.E.2d 932, ¶ 12 (both
holding that attorney-registration violations are disciplinary offenses pursuant to
BCGD Proc.Reg. 10(B)(1)(a)).
{¶ 12} The parties have stipulated and the board recommends that the
appropriate sanction for Lape’s misconduct is a six-month suspension, all stayed
on the condition that she commit no further misconduct. The board also
recommends the additional condition that she complete at least six hours of
continuing legal education (“CLE”) in office management during the stayed
suspension.
{¶ 13} In support of this sanction, the board cites Cleveland Metro. Bar
Assn. v. Zaffiro, 127 Ohio St.3d 5, 2010-Ohio-4830, 935 N.E.2d 836, and
Disciplinary Counsel v. Simon, 128 Ohio St.3d 359, 2011-Ohio-627, 944 N.E.2d
660. In Zaffiro, we publicly reprimanded an attorney who failed to inform his
clients that he did not carry malpractice insurance, failed to cooperate in a
disciplinary investigation, and made false statements by agreeing to provide a
copy of his malpractice insurance policy when no such policy existed. And in
Simon, the attorney had used his client trust account as though it were his personal
or law-office operating account, had failed to timely provide information
requested by relator, and had failed to cooperate in the disciplinary investigation.
We found that the presence of mitigating factors, including Simon’s lack of a
prior disciplinary record, the absence of a dishonest or selfish motive, his
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January Term, 2011
character and reputation, and the absence of any evidence of harm to his clients
weighed in favor of a fully stayed one-year suspension.
{¶ 14} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we agree that Lape’s conduct falls somewhere between that of Zaffiro and that of
Simon. Therefore, we conclude that a six-month suspension, fully stayed on the
conditions recommended by the board, is the appropriate sanction for Lape’s
misconduct.
{¶ 15} Accordingly, Lynn Ann Lape is suspended from the practice of
law in the state of Ohio for six months, all stayed on the conditions that during her
stayed suspension, she complete at least six hours of CLE in law-office
management, in addition to the CLE requirements set forth in Gov.Bar R. X, and
commit no further misconduct. If Lape fails to comply with the condition of the
stay, the stay will be lifted, and she will serve the full six-month suspension.
Costs are taxed to Lape.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,
Assistant Disciplinary Counsel, for relator.
Lynn Ann Lape, pro se.
______________________
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