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- 114Respondent disregarded his duty to exercise independent professional judgment on behalf of clients who werefacing 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, workedfrom home, from the beginning of August 2008 through the end of January 2009 and failed to inform any ofthe clients he did not maintain professional liability insurance. In September 2008, respondent accepted aposition with American Foreclosure Professionals, Inc., and Foreclosure Assistance USA, Inc. (―foreclosurecompanies.‖) The foreclosure companies solicited persons facing foreclosure and representing they couldsave their homes by negotiating with a lender. The foreclosure companies referred clients from Ohio, WestVirginia and California to respondent, who had signed a document agreeing to the procedures that theforeclosure companies expected him to follow in the representation of their customers. The companies chargedbetween $900 and $1200 which included the legal representation arranged by and paid for, in part, by thecompanies. The companies asked the customers to execute a request for legal services and forwarded therequest and contact information to respondent who received $100 to file an answer in each case. Usuallymore than a month before filing an answer, respondent sent each client a letter asking them to contact himregarding 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 theforeclosure allegations. If a motion of summary judgment were filed, he would send another letter with acopy of the motion, again asking if they had any defense and he warned them that if they did not he had nobasis to defend and the court would enter a judgment against the client. If the client did not respond to theletter, he did not oppose the motion or appear. If he received a notice that summary judgment had beenentered, he sent a letters to the clients notifying them of the judgment, the scheduling of a sheriff‘s sale andthe concluding steps of foreclosure. He explained they should contact the foreclosure company concerningnegotiation with the lender. He did not participate in negotiations with the lender. Respondent voluntarilyterminated his relationship with the foreclosure companies in January 2009; terminated his relationship withthe 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 interalia, violations of the Ohio Consumer Sales Practice Act. None of the foreclosure employees are admitted tothe practice of law. The panel and board accepted the consent-to-discipline agreement of violations ofProf.Cond.R. 1.1, 1.3, 1.4(c), 5.4(a), and 5.5(a) and a six-month, stayed suspension. In aggravation, therewas a pattern of multiple offenses against vulnerable clients. BCGD Proc.Reg. 10(B)(1)(c), (d), and (h). Inmitigation, there was no prior disciplinary record, a lack of a dishonest or selfish motive, a timely effort torectify the situation, and full cooperation. BCGD Proc.Reg. 10(B)(2)(a), (b), (c), and (d). In addition, hereported his misconduct and he no longer engages in private practice. He works as a staff attorney for a courtof appeals judge in Kentucky. The court has considered disciplinary cases where a lawyer enters a jointarrangement with an attorney company to represent clients in mortgage-foreclosure proceedings and sanctionshave ranged from a public reprimand for an inexperienced attorney to a stayed suspension for moreexperienced 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 likerespondent‘s alliances signal a surrender of the attorney‘s ability to exercise independent personal judgment ona client‘s behalf. Unlike Patterson who received a partially stayed suspension, respondent had no priordiscipline, but unlike Mullaney, who received a public reprimand, respondent was not a new associateconstrained by the practices at a law firm. The court accepted the consent-to discipline agreement and soordered 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: NOPublic Official: NO Sanction: Six-month suspension, stayed