disciplinary handbook: volume v - Supreme Court - State of Ohio

Harwood, Cincinnati Bar Assn. v.
125 Ohio St.3d 31, 2010-Ohio-1466. Decided 4/7/2010.
Case Summaries- 114
Respondent disregarded his duty to exercise independent professional judgment on behalf of clients who were
facing foreclosure and failed to inform his clients that he did not maintain professional- liability insurance.
Respondent and relator entered into a consent-to-discipline agreement. Respondent, a sole practitioner, worked
from home, from the beginning of August 2008 through the end of January 2009 and failed to inform any of
the clients he did not maintain professional liability insurance. In September 2008, respondent accepted a
position with American Foreclosure Professionals, Inc., and Foreclosure Assistance USA, Inc. (―foreclosure
companies.‖) The foreclosure companies solicited persons facing foreclosure and representing they could
save their homes by negotiating with a lender. The foreclosure companies referred clients from Ohio, West
Virginia and California to respondent, who had signed a document agreeing to the procedures that the
foreclosure companies expected him to follow in the representation of their customers. The companies charged
between $900 and $1200 which included the legal representation arranged by and paid for, in part, by the
companies. The companies asked the customers to execute a request for legal services and forwarded the
request and contact information to respondent who received $100 to file an answer in each case. Usually
more than a month before filing an answer, respondent sent each client a letter asking them to contact him
regarding whether they contested the alleged mortgage payment default and had any defenses. If no answer,
respond sent another status letter repeated the question and sending a copy of an answer denying the
foreclosure allegations. If a motion of summary judgment were filed, he would send another letter with a
copy of the motion, again asking if they had any defense and he warned them that if they did not he had no
basis to defend and the court would enter a judgment against the client. If the client did not respond to the
letter, he did not oppose the motion or appear. If he received a notice that summary judgment had been
entered, he sent a letters to the clients notifying them of the judgment, the scheduling of a sheriff‘s sale and
the concluding steps of foreclosure. He explained they should contact the foreclosure company concerning
negotiation with the lender. He did not participate in negotiations with the lender. Respondent voluntarily
terminated his relationship with the foreclosure companies in January 2009; terminated his relationship with
the referred client having a pending or open matter; and sought leave to withdraw from all pending cases.
That same month the Ohio Attorney General filed a complaint against the foreclosure company, alleging inter
alia, violations of the Ohio Consumer Sales Practice Act. None of the foreclosure employees are admitted to
the practice of law. The panel and board accepted the consent-to-discipline agreement of violations of
Prof.Cond.R. 1.1, 1.3, 1.4(c), 5.4(a), and 5.5(a) and a six-month, stayed suspension. In aggravation, there
was a pattern of multiple offenses against vulnerable clients. BCGD Proc.Reg. 10(B)(1)(c), (d), and (h). In
mitigation, there was no prior disciplinary record, a lack of a dishonest or selfish motive, a timely effort to
rectify the situation, and full cooperation. BCGD Proc.Reg. 10(B)(2)(a), (b), (c), and (d). In addition, he
reported his misconduct and he no longer engages in private practice. He works as a staff attorney for a court
of appeals judge in Kentucky. The court has considered disciplinary cases where a lawyer enters a joint
arrangement with an attorney company to represent clients in mortgage-foreclosure proceedings and sanctions
have ranged from a public reprimand for an inexperienced attorney to a stayed suspension for more
experienced attorneys to a partially stayed suspension for other attorneys: Patterson (2009), Willard (2009),
Palombaro (2009), and Mullaney (2008). The Court noted that the failings of these associations like
respondent‘s alliances signal a surrender of the attorney‘s ability to exercise independent personal judgment on
a client‘s behalf. Unlike Patterson who received a partially stayed suspension, respondent had no prior
discipline, but unlike Mullaney, who received a public reprimand, respondent was not a new associate
constrained by the practices at a law firm. The court accepted the consent-to discipline agreement and so
ordered a six-month stayed suspension.
Rules Violated: Prof.Cond.R. 1.1, 1.3, 1.4(c), 5.4(a), 5.5(a)
Aggravation: (c), (d), (h)
Mitigation: (a), (b), (c), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed