Columbus Bar Association v. LaFayette.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Columbus Bar Assn. v. LaFayette, Slip Opinion No. 2017-Ohio-9205.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2017-OHIO-9205

COLUMBUS BAR ASSOCIATION v. LAFAYETTE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Columbus Bar Assn. v. LaFayette, Slip Opinion No.

2017-Ohio-9205.]

Failure to provide competent representation—Failure to act diligently—Failure to

inform client of lack of liability insurance—Six-month suspension stayed on

condition.

(No. 2015-2010—Submitted August 29, 2017—Decided December 28, 2017.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2015-052.

_______________________

Per Curiam.

{¶ 1} Respondent, Eric Lee LaFayette, of Gahanna, Ohio, Attorney

Registration No. 0077662, was admitted to the practice of law in Ohio in 2004. The

Board of Professional Conduct recommends that we suspend him from the practice

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of law for six months, with the entire suspension stayed. For the reasons explained

below, we adopt the board’s recommended sanction.

Procedural Background

{¶ 2} In 2015, relator, Columbus Bar Association, charged LaFayette with

professional misconduct for, among other things, failing to provide competent

representation in two client matters and, in one of those cases, filing court

documents on which he had forged his client’s signature. The parties initially

entered into a consent-to-discipline agreement recommending that we sanction

LaFayette with a conditionally stayed one-year suspension. Although the board

accepted the agreement, we rejected the recommended sanction and remanded to

the board for further proceedings, including consideration of a more severe

sanction. Columbus Bar Assn. v. LaFayette, 146 Ohio St.3d 1485, 2016-Ohio-

5529, 57 N.E.3d 1166.

{¶ 3} On remand, relator amended its complaint and withdrew the

allegation that LaFayette had filed forged court documents. LaFayette stipulated

to most of the charged misconduct in the amended complaint, and after a hearing,

the board issued a report finding that he engaged in the stipulated misconduct. In

its report, the board noted that relator’s additional investigation on remand resulted

in a conclusion that LaFayette’s conduct had not amounted to forgery. For that

reason, the board recommended that we sanction him with a stayed six-month

suspension―a lesser sanction than it had previously endorsed when approving the

parties’ consent-to-discipline agreement. The parties do not object to the board’s

report and recommendation.

Misconduct

{¶ 4} LaFayette is a solo practitioner in Franklin County, and this matter

commenced after his mishandling of two separate client matters.

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Count One—the Rapalo Enamorado matter

{¶ 5} According to the parties’ stipulations, Abel Rapalo Enamorado, a

Honduras citizen, entered the United States without authorization or documentation

in 2000. In 2003, he married Martha Rapalo Enamorado, who is a United States

citizen. In 2006, the couple retained LaFayette to help them legalize Abel’s

presence in the United States. At that time, LaFayette had not handled any similar

immigration matters.

{¶ 6} In February 2006, LaFayette filed a petition seeking to have Abel

classified as an alien relative of a United States citizen. Immigration authorities

approved the petition in July 2006 and requested that Abel travel to Honduras for

consulate processing. Abel, however, declined to return to Honduras. At that point,

LaFayette was unsure of the next steps to take and essentially abandoned the alien-

relative petition. In 2008, approval of that petition was canceled for lack of action.

{¶ 7} In the interim, LaFayette applied for a green card for Abel. Relator

and LaFayette later stipulated, however, that because Abel had entered the United

States without documentation, he was ineligible to apply for a green card. After

Abel’s application was denied, LaFayette filed a futile appeal, which was also

rejected. LaFayette was later notified that Abel’s green-card application could be

processed overseas, but LaFayette failed to respond to the notice.

{¶ 8} In 2008, Abel and Martha asked LaFayette to file an application for

temporary protected status. Relator and LaFayette later stipulated, however, that

Abel did not meet the eligibility requirements for such status. Nevertheless,

LaFayette filed the application, and in doing so, he mistakenly applied the

eligibility standards for a citizen of El Salvador rather than Honduras. In 2010,

Abel’s request for temporary protected status was denied. At that point,

immigration authorities commenced deportation proceedings against him. In lieu

of deportation, Abel agreed to voluntarily leave the country. The parties stipulated,

however, that LaFayette failed to file any requests for relief that Abel may have

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been eligible to receive. After Abel departed, LaFayette filed another petition to

classify Abel as an alien relative, which was granted in 2012. But by that point,

Martha had decided to retain a different attorney, and she later filed a grievance

against LaFayette.

{¶ 9} The parties stipulated and the board found that LaFayette’s conduct

in representing Abel and Martha Rapalo Enamorado before February 1, 2007,

violated DR 6-101(A)(1) of the Code of Professional Responsibility (prohibiting a

lawyer from handling a matter that he is not competent to handle without obtaining

assistance from a lawyer who is competent to handle it)1 and that his conduct after

February 1, 2007, violated Prof.Cond.R. 1.1 (requiring a lawyer to provide

competent representation to a client), 1.3 (requiring a lawyer to act with reasonable

diligence in representing a client), and 3.1 (prohibiting a lawyer from bringing or

defending a proceeding, or asserting or controverting an issue in a proceeding, that

is unsupported by law or fact). In addition, the parties stipulated that LaFayette

failed to notify his clients that his malpractice insurance lapsed in 2009.

Accordingly, the board determined that he also violated Prof.Cond.R. 1.4(c)

(requiring a lawyer to inform the client if the lawyer does not maintain professional

liability insurance and obtain a signed acknowledgment of that notice from the

client). We agree with the board’s findings of misconduct.

Count Two—the Coles-Morgan matter

{¶ 10} In May 2013, Ryan Morgan retained LaFayette to file bankruptcy on

behalf of his mother, Alpha Coles-Morgan, whose home was the subject of a

foreclosure proceeding, with a sheriff’s sale scheduled in nine days. LaFayette met

with Coles-Morgan at his office, and although she signed the bankruptcy petition,

she failed to sign other documents relevant to her case. LaFayette filed the

bankruptcy petition a day before the scheduled sheriff’s sale, but he failed to stop

1

On February 1, 2007, the Rules of Professional Conduct superseded the Disciplinary Rules of the

Code of Professional Responsibility.

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January Term, 2017

the sale because he arrived at the sheriff’s office after the property had been sold.

The court in the foreclosure case later vacated the order confirming the sale after

the plaintiff in that proceeding—not LaFayette—notified the court of Coles-

Morgan’s bankruptcy filing.

{¶ 11} The bankruptcy court notified LaFayette that his filings were

incomplete and included erroneous information. LaFayette filed amended

documents, but they did not include the appropriate signatures from his client. He

also failed to appear on time for the first meeting of creditors. Although the

bankruptcy court ultimately issued a discharge to Coles-Morgan, she filed a

grievance based on LaFayette’s representation of her.

{¶ 12} The parties stipulated and the board found that LaFayette failed to

provide competent representation to Coles-Morgan, in violation of Prof.Cond.R.

1.1. In addition, the board found that because LaFayette failed to have Coles-

Morgan sign a notice acknowledging that she was aware that he lacked malpractice

insurance, he also violated Prof.Cond.R. 1.4(c). We adopt these findings of

misconduct.

Sanction

{¶ 13} When imposing sanctions for attorney misconduct, we consider

several relevant factors, including the ethical duties that the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

Aggravating and mitigating factors

{¶ 14} The board found one aggravating factor—that LaFayette engaged in

multiple offenses. See Gov.Bar R. V(13)(B)(4). In mitigation, the board

determined that he has no prior disciplinary record, lacked a dishonest or selfish

motive, had a cooperative attitude toward the disciplinary proceedings, and

submitted positive character evidence. See Gov.Bar R. V(13)(C)(1), (2), (4), and

(5).

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Applicable precedent

{¶ 15} To support its recommended sanction, the board cited several cases

with sanctions ranging from a public reprimand to a stayed suspension for conduct

similar to LaFayette’s, including Columbus Bar Assn. v. Bhatt, 133 Ohio St.3d 131,

2012-Ohio-4230, 976 N.E.2d 870 (publicly reprimanding an attorney who

neglected two client matters and failed to notify those clients that his malpractice

insurance had lapsed; mitigating factors included the absence of prior discipline,

lack of a dishonest or selfish motive, and cooperation in the disciplinary process);

Cleveland Metro. Bar Assn. v. Thomas, 125 Ohio St.3d 24, 2010-Ohio-1031, 925

N.E.2d 959 (imposing a conditionally stayed six-month suspension on an attorney

who filed a misleading document in a client’s bankruptcy proceeding and neglected

another client’s case; mitigating factors included the absence of prior discipline and

cooperation in the disciplinary process); Cleveland Metro. Bar Assn. v. Sherman,

126 Ohio St.3d 20, 2010-Ohio-2469, 929 N.E.2d 1061 (adopting the parties’

consent-to-discipline agreement and imposing a nine-month stayed suspension on

an attorney who neglected a client’s matter, voluntarily dismissed that client’s case

without her knowledge, and failed to advise another client that he did not maintain

malpractice insurance; mitigating factors included the absence of prior discipline,

lack of a dishonest motive, and cooperation in the disciplinary process).

{¶ 16} Considering LaFayette’s misconduct and the relevant mitigating and

aggravating factors, we agree with the board that a stayed six-month suspension is

consistent with our precedent. We therefore adopt the board’s recommended

sanction.

Conclusion

{¶ 17} Eric Lee LaFayette is hereby suspended from the practice of law in

Ohio for six months, with the entire suspension stayed on the condition that he

commit no further misconduct. If LaFayette fails to comply with the condition of

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the stay, the stay will be lifted, and he will serve the entire six-month suspension.

Costs are taxed to LaFayette.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,

and DEWINE, JJ., concur.

_________________

Lori J. Brown, Bar Counsel, and A. Alysha Clous, Assistant Bar

Counsel; Bloomfield & Kempf and David S. Bloomfield; and Judith M.

McInturff, for relator.

Eric Lee LaFayette, pro se.

_________________

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