[Cite as Disciplinary Counsel v. Lapine, 128 Ohio St.3d 87, 2010-Ohio-6151.] 

DISCIPLINARY COUNSEL v. LAPINE. 

[Cite as Disciplinary Counsel v. Lapine, 128 Ohio St.3d 87, 2010-Ohio-6151.] 

Attorneys — Misconduct — Reciprocal discipline — Suspension order from U.S. 

Securities and Exchange Commission that prohibits respondent from 

practicing before it but that reflects no finding or admission of 

wrongdoing is not a “disciplinary order in another jurisdiction” within 

the meaning of Gov.Bar R. V(11)(F)(1) — Reciprocal discipline not 

appropriate — Cause dismissed. 

(No. 2010-1291 — Submitted November 16, 2010 — Decided 

December 21, 2010.) 

ON CERTIFIED ORDER of the United States Securities and Exchange 

Commission, No. 3-13926. 

__________________ 

O’DONNELL, J. 

{¶ 1} This case concerns whether a suspension order entered by the 

United States Securities and Exchange Commission (“SEC”), in which an 

attorney licensed in Ohio has voluntarily agreed not to practice before the SEC for 

five years and which reflects neither an admission of wrongdoing by the attorney 

nor an affirmative finding of professional misconduct by the SEC, is a 

disciplinary order by another jurisdiction that requires this court to impose 

reciprocal discipline pursuant to Gov.Bar R. V(11)(F). Upon review, we 

conclude that the appropriate disposition is to dismiss this matter without 

imposing reciprocal discipline. 

{¶ 2} Respondent, Jay Marc Lapine, Attorney Registration No. 0005051, 

with a registration address in Duluth, Georgia, was admitted to the practice of law 

in Ohio in 1979. On July 22, 2010, in accordance with Gov.Bar R. V(11)(F)(1), 
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relator, Disciplinary Counsel, filed a certified copy of an order of the SEC 

suspending respondent from appearing or practicing before it as an attorney for a 

period of five years. 

{¶ 3} According to this suspension order, the SEC filed a complaint 

against respondent in the United States District Court for the Northern District of 

California in SEC v. Lapine, No. C-01-3650, alleging that respondent had 

participated in a fraudulent scheme to inflate the revenue of a publicly traded 

company in violation of generally accepted accounting principles by using 

concealed side letters and back-dated contracts. In particular, the complaint 

alleged that respondent had falsified documents and circumvented internal 

accounting controls and that he had aided and abetted his employers in the same 

violations as well as in their failure to maintain accurate books and records and 

their filing of materially false reports with the SEC. 

{¶ 4} The district court entered a final judgment by consent against 

respondent (1) permanently enjoining him from violating or aiding and abetting 

the violation of various sections of the Securities Exchange Act of 1934 and SEC 

rules, (2) ordering him to pay a civil penalty of $60,000, and (3) prohibiting him 

from acting as an officer or director of any entity issuing certain types of 

securities or having a duty to file certain reports with the SEC for five years. The 

court did not, however, obtain respondent’s admission to wrongdoing or make 

any findings of misconduct. 

{¶ 5} Part 201, Title 17, C.F.R. contains the Rules of Practice of the 

SEC. Section 201.102(e)(3)(i) provides: 

{¶ 6} “The Commission, with due regard to the public interest and 

without preliminary hearing, may, by order, temporarily suspend from appearing 

or practicing before it any attorney, accountant, engineer, or other professional or 

expert who has been by name: 
January Term, 2010 

3 

{¶ 7} “Permanently enjoined by any court of competent jurisdiction, by 

reason of his or her misconduct in an action brought by the Commission, from 

violating or aiding and abetting the violation of any provision of the Federal 

securities laws or of the rules and regulations thereunder.” 

{¶ 8} In its order of suspension, the SEC noted that respondent, in 

anticipation of additional proceedings against him pursuant to Section 

201.102(e)(3)(i)(A), submitted an offer of settlement to the SEC. The SEC 

accepted the offer and entered an order suspending respondent from appearing or 

practicing before it as an attorney for a period of five years. However, while 

respondent consented to the entry of the SEC order, he did not admit that he had 

engaged in misconduct, nor did the SEC make any affirmative findings of 

misconduct. 

{¶ 9} Gov.Bar R. V(11)(F)(4) provides that the court shall impose 

reciprocal discipline following the issuance of a disciplinary order in another 

jurisdiction unless the attorney proves by clear and convincing evidence either (1) 

that there was fraud or a lack of jurisdiction in the other jurisdiction’s disciplinary 

process or (2) that the misconduct established warrants a substantially different 

discipline in Ohio. Gov.Bar R. V(11)(F)(4)(i) and (ii). “In all other respects, a 

final adjudication in another jurisdiction that an attorney has been subjected to 

discipline shall establish conclusively the misconduct for purposes of a 

disciplinary proceeding in Ohio.” Gov.Bar R. V(11)(F)(5). 

{¶ 10} Upon relator’s filing of the SEC suspension order, we ordered 

respondent to show cause why we should not impose identical or comparable 

discipline in Ohio. See Gov.Bar R. V(11)(F)(2)(b). After respondent filed a 

response to the show-cause order and relator filed a reply, we directed the parties 

to file briefs addressing three issues: (1) whether the Supreme Court Rules for the 

Government of the Bar of Ohio require that “another jurisdiction” imposing 

discipline upon an attorney make affirmative findings of misconduct, comparable 
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to those required by Gov.Bar R. V(6)(J) and V(11)(A)(3)(c), before reciprocal 

discipline may be imposed pursuant to Gov.Bar R. V(11)(F), (2) whether the SEC 

is a “jurisdiction” within the meaning of Gov.Bar R. V(11)(F) for purposes of 

imposing reciprocal discipline, and (3) whether the respondent has been 

disciplined by the SEC as a reciprocal authority such that this court should impose 

reciprocal discipline pursuant to Gov.Bar R. V(11)(F). See Disciplinary Counsel 

v. Lapine, 126 Ohio St.3d 1588, 2010-Ohio-4639, 934 N.E.2d 358. 

{¶ 11} The parties dispute whether the SEC is a “jurisdiction” for 

purposes of Gov.Bar R. V(11)(F), and we have not before specifically addressed 

this question with respect to the SEC. However, we have previously recognized 

that a federal agency may be considered a jurisdiction for purposes of this rule. 

{¶ 12} In Disciplinary Counsel v. Rayve, 121 Ohio St.3d 1212, 2009-

Ohio-844, 901 N.E.2d 1292, Disciplinary Counsel v. Knuth, 119 Ohio St.3d 1201, 

2008-Ohio-3810, 891 N.E.2d 343, and Disciplinary Counsel v. Colitz, 99 Ohio 

St.3d 1216, 2003-Ohio-3308, 790 N.E.2d 788, we imposed reciprocal discipline 

on attorneys suspended from practice before the United States Patent and 

Trademark Office (“USPTO”). 

{¶ 13} While we did not provide our reasoning for recognizing that the 

USPTO is a jurisdiction for purposes of Gov.Bar R. V(11)(F), it is notable that 

only those practitioners who are registered with the USPTO Office of Enrollment 

and Discipline or who are given limited recognition pursuant to agency 

regulations may represent others before the USPTO. Section 11.10(a), Title 37, 

C.F.R. Applicants for admission to practice before the USPTO are required to 

pass a registration exam administered by the Office of Enrollment and Discipline, 

except in limited circumstances when a waiver applies. Section 11.7(b)(1)(ii), 

Title 37, C.F.R. Further, Section 11.19(a), Title 37, C.F.R. provides that all 

practitioners are subject to the disciplinary jurisdiction of the USPTO, and Section 

11.19(b)(1)(iv) states that practitioners may be disciplined for violations of the 
January Term, 2010 

5 

Mandatory Disciplinary Rules of the USPTO identified in Section 10.20, Title 37, 

C.F.R. The Office of Enrollment and Discipline has authority to investigate 

misconduct, Section 11.22(a), and may initiate disciplinary proceedings against a 

practitioner, Section 11.32, in which any violation of the disciplinary rules must 

be proven by clear and convincing evidence. Section 11.49. 

{¶ 14} By comparison, the SEC regulations do not limit appearance and 

practice before the SEC in a representational capacity to registered practitioners. 

Not only do the rules of practice allow a person to be represented by any attorney 

admitted to practice before the Supreme Court of the United States or the highest 

court of a state, but they also allow a partner to represent a partnership, an officer 

to represent a corporation, trust, or association, and an officer or employee to 

represent a state commission, department, or political subdivision. Section 

201.102(b), Title 17, C.F.R. 

{¶ 15} Thus, rather than imposing admission requirements, the SEC 

affords the privilege of appearing in a representative capacity to broad categories 

of individuals, with that privilege subject to subsequent suspension on the SEC’s 

finding of a lack of qualification to represent others, a lack of character or 

integrity, unprofessional conduct, or a violation of federal securities law. Section 

201.102(e)(1)(ii) through (iii). Notably, the SEC Rules of Practice do not set 

forth or incorporate by reference any rules of professional conduct or provide for 

disciplinary hearings in which misconduct must be proven by clear and 

convincing evidence. 

{¶ 16} Moreover, the definition of “practice” provided in the SEC Rules 

of Practice encompasses more than the practice of law and includes: 

{¶ 17} “(1) Transacting any business with the [SEC]; and 

{¶ 18} “(2) The preparation of any statement, opinion or other paper by 

any attorney, accountant, engineer or other professional or expert, filed with the 

[SEC] in any registration statement, notification, application, report or other 
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document with the consent of such attorney, accountant, engineer or other 

professional or expert.” (Emphasis added.) Section 201.102(f), Title 17, C.F.R. 

{¶ 19} Notably, the Supreme Court of Florida, the only court to consider 

whether the SEC is a jurisdiction for purposes of imposing reciprocal discipline, 

held that an SEC suspension order is not a final adjudication in a disciplinary 

proceeding by a court or other authorized disciplinary agency of another 

jurisdiction within the meaning of Florida’s reciprocal-discipline provisions. 

Florida Bar v. Tepps (Fla.1992), 601 So.2d 1174. While the court noted that the 

SEC has authority to temporarily or permanently deny any person the privilege of 

appearing or practicing before it, the primary purpose of this authority “is not to 

ensure the qualification, supervision or regulation of lawyers.” Id. at 1175. Cf. 

Stanley v. Ligon (2008), 374 Ark. 6, 11, 285 S.W.3d 649, fn. 4 (“While the 

[Social Security Administration] and [the Department of Veteran’s Affairs] are 

administrative agencies with authority to regulate who represents claimants before 

them, they are not regulating the practice of law when so doing. * * * Thus, 

when the SSA suspended Stanley from representing claimants for five years, that 

did not amount to a suspension from the practice of law [for purposes of 

reciprocal discipline]”). 

{¶ 20} Because the SEC does not admit or supervise attorneys or 

specifically regulate the practice of law, it should not be considered a jurisdiction 

for purposes of imposing reciprocal discipline on an attorney admitted to practice 

in Ohio. 

{¶ 21} Even if we were to consider the SEC a jurisdiction for purposes of 

reciprocal discipline, this matter should nonetheless be dismissed because as 

relator concedes, the SEC suspension order is not the result of a disciplinary 

proceeding and is therefore not a “disciplinary order” within the meaning of 

Gov.Bar R. V(11)(F)(1). 
January Term, 2010 

7 

{¶ 22} The Supreme Court Rules for the Government of the Bar generally 

contemplate that an attorney will either admit a disciplinary violation or be found 

by clear and convincing evidence to be guilty of professional misconduct before 

discipline is imposed. See Gov.Bar R. V(11)(A)(3)(c) and V(6)(J). This policy 

accords with the principle that an attorney’s license to practice law may not be 

arbitrarily revoked and that an attorney is entitled to procedural due process in a 

disciplinary proceeding. See, e.g., In re Ruffalo (1968), 390 U.S. 544, 550-551, 

88 S.Ct. 1222, 20 L.Ed.2d 117; Konigsberg v. State Bar of California (1957), 353 

U.S. 252, 262, 77 S.Ct. 722, 1 L.Ed.2d 810. 

{¶ 23} However, for purposes of imposing reciprocal discipline, a final 

adjudication in another jurisdiction that an attorney has been subjected to 

discipline conclusively establishes the misconduct for purposes of a disciplinary 

proceeding in Ohio, Gov.Bar. R. V(11)(F)(5), unless the attorney demonstrates 

fraud or a lack of jurisdiction in the other jurisdiction’s disciplinary process, 

Gov.Bar R. V(11)(F)(4)(a)(i). 

{¶ 24} The purpose of reciprocal discipline is to prevent relitigation of 

misconduct that has already been established in another jurisdiction and to protect 

the public from lawyers who commit such misconduct. Official Comment 1, 

Prof.Cond.R. 8.5; see also People v. Bode (Colo.O.P.D.J.2005), 119 P.3d 1098, 

1100 (the purpose of reciprocal discipline is “to enhance public confidence in the 

profession by preventing lawyers admitted to practice in more than one 

jurisdiction from avoiding the effect of discipline by simply practicing in another 

jurisdiction”). That purpose is not served, however, if the other jurisdiction has 

not actually established the underlying misconduct. 

{¶ 25} Here, respondent entered into a settlement agreement with the 

SEC, but he did not admit violating any law or committing any professional 

misconduct, and the SEC did not make an affirmative finding of misconduct 

based on clear and convincing evidence. Respondent therefore has not been 
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8 

disciplined by the SEC for professional misconduct as an attorney, but rather has 

voluntarily agreed not to practice before the SEC in order to settle a dispute with 

that agency. The suspension order thus cannot serve as a basis for imposing 

reciprocal discipline. 

{¶ 26} For these reasons, the SEC is not a “jurisdiction” for purposes of 

reciprocal discipline, it did not issue a disciplinary order within the meaning of 

Gov.Bar R. V(11)(F), and reciprocal discipline is not available in this case. 

Accordingly, the appropriate disposition is to dismiss this matter without 

imposing reciprocal discipline. 

Judgment accordingly. 

 BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

LANZINGER, and CUPP, JJ., concur. 

__________________ 

Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek 

Beckman, Assistant Disciplinary Counsel, for relator. 

Carpenter, Lipps & Leland, L.L.P., Jeffery A. Lipps, and David J. Leland, 

for respondent. 

______________________