KENTUCKY BAR ASSOCIATION V. CHRISTOPHER S. HARWOOD COURTAnnotate this Case
AMENDED: JUNE 16, 2011
TO BE PUBLISHED
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KENTUCKY BAR ASSOCIATION
IN SUPREME COURT
CHRISTOPHER S. HARWOOD
KBA Member No. 92056
OPINION AND ORDER
The Respondent, Christopher S. Harwood, KBA Member No. 92056, was
suspended from the practice of law by the Ohio Supreme Court for a period of
six months, stayed upon the condition that he commit no further misconduct.
That suspension stemmed from Harwood's representation of clients referred to
him by two foreclosure companies which resulted in the violation of five rules of
professional conduct. The underlying facts, as set forth by the Supreme Court
of Ohio in Cincinnati Bar Association v. Harwood, 925 N.E.2d 965 (Ohio 2010),
are as follows:
In September of 2008, Respondent accepted an
offer to perform legal work for American Foreclosure
Professionals, Inc. and Foreclosure Assistance USA,
Inc. ("foreclosure companies"). Between October 2008
and January 2009, Respondent represented over fifty
clients whom the foreclosure companies referred to
him. These clients included persons who resided in
Ohio, as well as West Virginia and California.
Respondent signed a document agreeing to the
procedures that the foreclosure companies expected
him to follow in representing their customers. These
companies solicited persons who were facing
foreclosure and represented that they could save their
homes from foreclosure by negotiating with the lender.
The foreclosure companies charged between
$900 and $1,200 for the services they provided and
informed customers that the fee included legal
representation arranged for and paid by, in part, the
companies. The foreclosure companies asked their
customers to execute a request for legal services and
then forwarded the executed request and the client's
contact information and goals (e.g., keeping or selling
the property) to Respondent. Respondent received
$100 to file an answer in each case referred to him.
Upon receiving a referral and an executed
agreement for legal representation, and generally more
than a month before filing an answer, Respondent
would send a case-status letter with copies of a motion
for enlargement of time to respond. In the letter,
Respondent asked each client to contact him regarding
whether the client contested the alleged default in the
mortgage payment and whether the client had any
defenses. If Respondent received no answer, he would
routinely send another status letter repeating these
questions and would also send a copy of an answer
denying the foreclosure allegations.
If a motion for summary judgment was filed in
the foreclosure case, Respondent would send another
letter to the client with a copy of the motion. In the
letter, Respondent would again ask if the client had
any defenses and would warn the client that the
absence of any defenses meant that Respondent had
no basis to defend against the motion, and that the
court would enter a judgment for the mortgage
company against the client. If the client did not
respond, Respondent generally did not oppose the
motion or appear at any hearing.
When Respondent received notice that summary
judgment had been entered against a client in a
foreclosure case, he routinely sent letters notifying the
client of the judgment, the scheduling of a sheriff s
sale, and the concluding steps of the foreclosure.
Respondent would explain that it was important for
the client to contact the foreclosure companies
concerning negotiations with the lender. In cases in
which the lender negotiated with the foreclosure
companies concerning the mortgage default,
Respondent did not participate in the negotiations on
behalf of the client. Neither the president of the
foreclosure companies nor any of their employees is
admitted to the practice of law.
In January of 2009, Respondent voluntarily
terminated his relationship with the foreclosure
companies and stopped accepting their referrals.
Afterwards, Respondent terminated his relationship
with referred clients having a pending or open matter.
He also sought leave to withdraw from all pending
In that same month, the Ohio Attorney General
filed a complaint against the foreclosure companies in
the Hamilton County Court of Common Pleas alleging
violations of, inter alia, the Ohio Consumer Sales
Practices Act, R.C. 1345.01 et seq. The Attorney
General alleged that the foreclosure companies: (1)
failed to deliver services within the prescribed period of
time; (2) knowingly sold services to consumers that
carried no substantial benefit and resulted in
detrimental reliance by the consumer; and (3) made
false or misleading representations to consumers.
Respondent admitted, and the Board found, that
his conduct violated the following Rules of Professional
Conduct: 1.1 (requiring a lawyer to provide competent
representation to a client); 1.3 (requiring a lawyer to
act with reasonable diligence and promptness in
representing a client); 1.4(c) (requiring a lawyer to
inform a client that he does not maintain professionalliability insurance); 5.4(a) (prohibiting a lawyer from
sharing legal fees with a nonlawyer); and 5.5(a)
(prohibiting a lawyer from assisting another to practice
law in a jurisdiction in violation of the regulation of the
legal profession in that jurisdiction). We accept
Respondent's admission and the Board's finding of
Upon motion by the Kentucky Bar Association (the "KBA"), this Court
ordered Harwood to show cause, if any, why reciprocal discipline pursuant to
SCR 3.435 should not be imposed. In that motion, the KBA requested that this
Court suspend Harwood from the practice of law in Kentucky "for a period of
six (6) months, with the entire period probated on the condition that he commit
no further misconduct." In addition, the KBA requests that Harwood be
ordered to attend and successfully complete the Ethics and Professionalism
Enhancement Program ("EPEP") as a condition of his probation.
In his response to the show cause order, Harwood does not contest the
imposition of reciprocal discipline. Rather, he argues that any Kentucky
suspension should be applied retroactively, and that the EPEP should not be a
condition of his probation.
Any decision regarding retroactivity of Harwood's suspension lies within
this Court's sound discretion. KBA v. Katz, 317 S.W.3d 592, 594 (Ky. 2010).
In Katz, we declined to impose a period of suspension retroactively. We noted
particularly the fact that Katz had failed to report his out-of-state discipline to
the KBA, and that he did not respond to this Court's show cause order.
In KBA v. Marsick, the Respondent had already served a six-month
suspension imposed by the Ohio Supreme Court and requested this Court to
run any Kentucky suspension concurrently. 986 S.W.2d 899 (Ky. 1999). We
declined, noting that "[if Marsick] advised the Bar of his Ohio suspension in a
timely fashion, as required by SCR 3.435(1), and sought concurrent
suspension at that time, perhaps this Court would have granted the motion."
Id. Again, in KBA v. Whitehead, we refused to run a suspension concurrent to
discipline already imposed in Arizona. 302 S.W.3d 66 (Ky. 2010). We were
persuaded by the fact that Whitehead did not respond to this Court's show
cause order, and that he did not request that any suspension run
Conversely, in KBA v. Trainor, we granted a request to run an attorney's
suspension concurrently to a completed Ohio suspension. 145 S.W.3d 839
(Ky. 2004). The Ohio Supreme Court suspended Trainor for a period of six
months, to be stayed on the condition that he provide certain accountings of
clients' funds. He complied with the conditions and the stay expired. In its
motion for imposition of reciprocal discipline, the KBA requested that Trainor's
Kentucky suspension run concurrently to the already-served Ohio suspension.
We granted that request without specifically discussing the issue of retroactive
discipline. However, the opinion and order does note that Trainor's
misconduct, arising from inadequate accountings of IOLTA accounts, resulted
in no pecuniary loss to any client.
We cannot impose retroactive discipline if to do so would "unduly
depreciate the significance of our own disciplinary actions." Marsick, 986
S.W.2d at 899. As the Ohio Supreme Court noted, Harwood engaged in a
pattern of misconduct that involved multiple offenses and vulnerable clients
facing foreclosure. Harwood, 925 N.E.2d at 968. His actions would constitute
violations of five of Kentucky's Rules of Professional Conduct.
Though the KBA does not move for a retroactive sentence, as in Trainor,
it does emphasize several mitigating factors. Harwood reported his own
misconduct to the Cincinnati Bar Association. He fully cooperated in the Ohio
proceedings. He self-reported his suspension in a timely manner to the KBA.
Further, he has no prior disciplinary history in Kentucky or Ohio. The Ohio
Supreme Court, in its order of suspension, noted that Harwood "lacked a
dishonest or selfish motive." Harwood, 925 N.E.2d at 968. Finally, Harwood
has fully complied with the proceedings in Kentucky. Considering these
circumstances, we believe Harwood has shown sufficient cause why the
reciprocal suspension should be applied retroactively.
Harwood also argues that "reciprocal discipline," within the meaning of
SCR 3.435, would not include a requirement that he attend the EPEP, because
this condition is not available in Ohio. He asserts that the EPEP condition
qualifies as additional punishment, where SCR 3.435(4)(b) allows only for the
imposition of a lesser sanction. This argument must fail because attendance at
the EPEP does not constitute punishment.
Accordingly, it is hereby ORDERED as follows:
1. Christopher Harwood, KBA Member No. 92056, is hereby retroactively
suspended from the practice of law in Kentucky for a period of onehundred eighty (180) days, probated for one year, effective April 7,
2010. His suspension is to run concurrently with the six (6) month
probated sentence entered by the Ohio Supreme Court.
2. Harwood must attend and successfully complete the Ethics and
Professionalism Enhancement Program within one (1) year of the date
of this Order. Harwood must not apply for CLE credit of any kind for
attendance at the EPEP and will furnish a release and waiver to the
Office of Bar Counsel to review his records with the CLE Commission
for one year from the completion of the EPEP to verify that Harwood
has not reported any hours to the CLE Commission based on his
3. Harwood is directed to pay all costs associated with these disciplinary
All sitting. All concur.
ENTERED: March 24, 2011.
,i5uprrittr Gild of Tfirtifuritv
KENTUCKY BAR ASSOCIATION
IN SUPREME COURT
CHRISTOPHER S. HARWOOD
KBA Member No. 92056
ORDER GRANTING MOTION TO RECONSIDER
Kentucky Bar Association's motion to reconsider the Court's Opinion and
Order, entered on March 24, 2011, in the above-styled case, is hereby granted.
The Opinion and Order, entered on March 24, 2011, is hereby amended
by substituting the entire opinion as attached hereto. The amended Opinion
and Order attached hereto does not affect the original holding, but rather
clarifies the actual sanction to be imposed against the Respondent.
ENTERED: June 16, 2011.