[Cite as Disciplinary Counsel v. Willard, 123 Ohio St.3d 15, 2009-Ohio-3629.] 

DISCIPLINARY COUNSEL v. WILLARD. 

[Cite as Disciplinary Counsel v. Willard, 123 Ohio St.3d 15, 2009-Ohio-3629.] 

Attorneys — Misconduct — Partnering with nonlawyer organization — Six 

violations of the Disciplinary Rules — License suspension, partially 

stayed. 

(No. 2009-0465 — Submitted June 16, 2009 — Decided July 30, 2009.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 08-042. 

–––––––––––––––––– 

MOYER, C.J. 

{¶ 1} Respondent, John Thaddeus Willard of Hamilton, Ohio, Attorney 

Registration No. 0002125, was admitted to the practice of law in Ohio in 1966. 

The Board of Commissioners on Grievances and Discipline recommends that we 

suspend respondent’s license for one year, staying the suspension upon 

conditions, for his conduct in partnering with a nonlawyer organization to 

represent clients and for representing them with very little preparation or 

communication. We agree that respondent committed the misconduct found by 

the board and find two additional violations of the Disciplinary Rules. We also 

conclude that respondent’s reproachable acts warrant a harsher punishment than 

that recommended by the board and accordingly suspend respondent for one year 

with six months stayed. 

I. Procedural History 

{¶ 2} Relator, Disciplinary Counsel, filed a complaint against 

respondent, alleging violations of six Disciplinary Rules based on respondent’s 

conduct in representing numerous clients referred to him by a foreclosure 

assistance service. A panel of the Board of Commissioners on Grievances and 
SUPREME COURT OF OHIO

2 

Discipline heard the case and concluded that respondent had committed four 

violations of the Code of Professional Responsibility, but that there was a lack of 

clear and convincing evidence that respondent had committed the other two 

alleged violations. The panel recommended a suspension from the practice of law 

for one year, with the entire suspension stayed. The board adopted the panel’s 

findings and sanction, recommending a stayed suspension of one year. 

{¶ 3} Relator filed objections to the board’s decision, arguing that there 

was sufficient evidence to support finding violations of the remaining two 

Disciplinary Rules and that respondent should be given a one-year suspension 

with only six months stayed. 

II. Misconduct 

A. Introduction 

{¶ 4} Respondent was contacted by Foreclosure Alternatives in 2004 to 

represent customers in foreclosure actions. Foreclosure Alternatives is a company 

that solicits clients who are defendants in pending foreclosure proceedings by 

offering to intervene on their behalf and negotiate with the foreclosing lender. 

The company is not owned by attorneys, and to the parties’ knowledge, it has no 

attorney employees. 

{¶ 5} Foreclosure Alternatives sends direct-mail advertisements to these 

individuals. Any customers who respond are contacted by an employee to 

schedule a meeting, and a packet of information is sent to the customer. The 

packet includes a mediation agreement, which lays out the company’s fees, and 

instructions for the customer to deposit money in an account on a monthly basis to 

demonstrate to the lender the customer’s ability to make payments. A limited 

power of attorney is also included in the packet, which provides authority to an 

unnamed attorney to take legal action on the customer’s behalf. None of the 

information provided discloses the fee that will be paid to the attorney out of the 

general fee paid to Foreclosure Alternatives. The information does state that the 
January Term, 2009 

3 

company is “here to make this dreadful process go away,” and the panel found 

that customers understood this phrase to mean that the company would resolve all 

foreclosure issues in their best interests. 

B. Respondent’s Protocol for Cases from Foreclosure Alternatives 

{¶ 6} Respondent agreed to limited representation of customers referred 

by Foreclosure Alternatives for a fixed fee of $150 per case. His representation 

was limited to filing responsive pleadings, because the company retained 

authority to negotiate with the lender. Respondent participated in a minimum of 

28 cases referred by Foreclosure Alternatives. 

{¶ 7} Under respondent’s usual protocol for these cases, he would 

receive a copy of the foreclosure complaint filed against the client and the limited 

power of attorney from Foreclosure Alternatives. He would then file an answer to 

the complaint or a motion to strike and send a copy to the client along with a letter 

stating: “This is a response I filed on your behalf. I had a referral from 

Foreclosure Alternatives. If there are any other defenses you can think of, feel 

free to call me.” This letter was the first communication with the client, and, in 

fact, usually the first occasion for the client to learn the name of his attorney. Out 

of the 28 or more Foreclosure Alternatives clients, respondent discussed cases 

with only three or four of them. 

{¶ 8} Negotiations with the lender were conducted by Foreclosure 

Alternatives; respondent was not even informed of their progress. The next action 

respondent would take was to notify the company when he received a motion for 

summary judgment filed by the lender. If the client had no defense, respondent 

sent a letter to the client stating: “A motion for summary judgment was filed. I 

suggest that you consider a Chapter 13 bankruptcy or a bankruptcy.” Respondent 

did not otherwise personally communicate with the client. 

C. The Chandlers’ Case 
SUPREME COURT OF OHIO

4 

{¶ 9} The foreclosure on the home of David and Annette Chandler led to 

this professional grievance. The Chandlers contacted the company after receiving 

an advertisement. They then received the typical packet of information and 

subsequently submitted a copy of the complaint filed against them by their lender, 

Wells Fargo, the signed power of attorney, and the signed mediation agreement. 

{¶ 10} After the Chandlers wrote a check for $450, half of the total fee, 

Foreclosure Alternatives notified them that the “attorney has filed plea [sic] and 

answered the complaint in your foreclosure case,” although the letter did not 

identify the attorney, and no answer was ever filed. The company did not actually 

refer the case to respondent for another two months. By the time respondent 

received the file, in October 2006, the court had already entered a default 

judgment against the Chandlers and had ordered that their house be sold. Instead 

of contacting the clients, however, respondent told the company that it was too 

late to help the Chandlers; he agreed, however, to do “something” and accepted 

the fee. Respondent filed a motion to strike the complaint and eventually 

contacted Wells Fargo. The lender’s representative informed respondent that the 

sale of the Chandlers’ home would go forward as scheduled on October 23. 

{¶ 11} The Chandlers learned of the sale of their home through a 

newspaper notice only two weeks prior to the scheduled date. Upon contacting 

Foreclosure Alternatives, the company informed them that everything was fine. 

But on October 20, Foreclosure Alternatives told the Chandlers that their situation 

was hopeless. The Chandlers were not notified that a motion to strike had been 

filed, and they never received a copy of the motion. The foreclosure sale took 

place as scheduled on October 23. It was only in early December that the 

Chandlers learned respondent’s name by examining court documents. The 

Chandlers wrote to respondent and requested that he forward their file to another 

attorney, who subsequently filed the grievance against respondent along with a 

civil suit against respondent and Foreclosure Alternatives. 
January Term, 2009 

5 

D. Disciplinary Rule Violations 

{¶ 12} The board first found respondent to have violated DR 2-103(C) (In 

general, a lawyer shall not request a person or organization to recommend or 

promote the use of the lawyer’s services). We agree with the board’s finding. 

Respondent entered into an oral agreement with Foreclosure Alternatives whereby 

the company, which did not employ any attorneys, would solicit business from 

customers and refer the cases to respondent. The company does not qualify as an 

authorized referral service as described in DR 2-103(C)(1). Respondent had no 

contact with the clients prior to the referral, and he obtained the business only 

because of this agreement with the company. In fact, the clients did not even 

know the identity of their attorney before he began work on their cases. 

{¶ 13} The board also found respondent to have violated DR 3-101(A) (A 

lawyer shall not aid a nonlawyer in the unauthorized practice of law). “We have 

held that by advising debtors of their legal rights and the terms and conditions of 

settlement in negotiations to avoid pending foreclosure proceedings, laypersons 

engage in the unauthorized practice of law.” Cincinnati Bar Assn. v. Mullaney, 

119 Ohio St.3d 412, 2008-Ohio-4541, 894 N.E.2d 1210, ¶ 20, citing Cincinnati 

Bar Assn. v. Telford (1999), 85 Ohio St.3d 111, 707 N.E.2d 462. Though 

respondent provided in-court legal representation by filing pleadings on behalf of 

the Chandlers and other clients, all negotiations with creditors were performed by 

Foreclosure Alternatives. This arrangement was part of the agreement between 

respondent and the company. It is not contested that Foreclosure Alternatives 

does not employ any attorneys. 

{¶ 14} The board next found a violation of DR 3-102(A) (In general, a 

lawyer shall not share legal fees with a nonlawyer). The Chandlers and other 

customers paid a set fee to Foreclosure Alternatives to handle negotiations with 

foreclosing lenders and to provide advice regarding their situation. This work 

amounts to the practice of law. See Mullaney, 119 Ohio St.3d 412, 2008-Ohio-
SUPREME COURT OF OHIO

6 

4541, 894 N.E.2d 1210, at ¶ 20. The company then transferred $150 of the set fee 

paid by customers to respondent for each case he handled. Because Foreclosure 

Alternatives does not employ attorneys, by his participation in this arrangement, 

respondent shared legal fees with a nonlawyer. 

{¶ 15} Finally, the board found a violation of DR 3-103(A) (A lawyer 

shall not form a partnership with a nonlawyer if any of the activities of the 

partnership consist of the practice of law). As we have explained, the actions of 

respondent and Foreclosure Alternatives constituted the practice of law by 

representing debtors facing foreclosure. Respondent partnered with the company 

to provide these legal services, with respondent filing formal pleadings on the 

clients’ behalf and the company advising the clients and negotiating with lenders. 

Respondent has not filed objections to these findings, and we agree with the board 

that respondent violated these four Disciplinary Rules. 

{¶ 16} But the board found a lack of clear and convincing evidence to 

support alleged violations of both DR 6-101(A)(2) and 7-101(A)(1), and relator 

has now objected to their dismissal. The objections are well taken. 

{¶ 17} DR 6-101(A)(2) prohibits a lawyer from handling a legal matter 

without adequate preparation. The parties stipulated that respondent’s conduct 

violated this rule, but the board concluded that even a more prepared attorney 

could not have done more for the Chandlers because default judgment had already 

been entered against them. The board assumed that the Chandlers’ circumstances 

did not allow for any form of relief from the default judgment. But though a 

default judgment had been entered, respondent still accepted the case from 

Foreclosure Alternatives and filed a motion to strike without contacting his clients 

to learn about their situation and any possible defenses. An attorney cannot be 

adequately prepared to represent clients if he has never even bothered to contact 

them. 
January Term, 2009 

7 

{¶ 18} The board’s analysis of DR 6-101(A)(2) also ignored the other 

clients whom respondent represented on referral from Foreclosure Alternatives. 

The stipulated facts show that respondent typically filed an answer to a 

foreclosure complaint against clients without contacting them. His initial contact 

involved a copy of the answer and a cover letter that put the burden on the clients 

to put forth any additional legal defenses. Respondent discussed cases with only 

three or four actual clients, and he did not negotiate with the clients’ lenders. 

When a motion for summary judgment was filed against his clients, he simply 

sent a letter to the client notifying them of that fact and suggesting that they file 

bankruptcy. These facts show a lack of preparedness in violation of the 

Disciplinary Rules for all Foreclosure Alternatives clients. We hold that 

respondent violated DR 6-101(A)(2), as the parties stipulated. 

{¶ 19} DR 7-101(A)(1) prohibits a lawyer from intentionally failing to 

seek the lawful objectives of his client. The board’s finding that this alleged 

violation is not supported by clear and convincing evidence is incorrect. With 

respect to the Chandlers, respondent failed to seek their objectives by not 

contacting them to discover whether there remained any means to aid them in 

avoiding the pending foreclosure. With respect to the other clients, respondent 

violated this rule by “surrendering [his] professional judgment to” the company. 

Mullaney, 119 Ohio St.3d 412, 2008-Ohio-4541, 894 N.E.2d 1210, at ¶ 23. In 

Mullaney, we noted that “[c]ounseling debtors in financial crisis as to their best 

course of legal action requires the attention of a qualified attorney.” Id. at ¶ 24, 

citing Columbus Bar Assn. v. Flanagan (1997), 77 Ohio St.3d 381, 383, 674 

N.E.2d 681. Here, however, respondent was involved in the cases only to the 

extent that he filed responsive pleadings in court. All advising and negotiation 

were left to Foreclosure Alternatives. Respondent “failed to evaluate [his] clients’ 

situations and develop a strategy to meet their individualized needs.” Id. at ¶ 27. 

We hold that respondent also violated DR 7-101(A)(1). 
SUPREME COURT OF OHIO

8 

III. Sanction 

{¶ 20} The proper sanction for violations of the Disciplinary Rules is 

determined by consideration of “the duties violated, respondent’s mental state, the 

injury caused, the existence of aggravating or mitigating circumstances, and 

applicable precedent.” Disciplinary Counsel v. Evans (2000), 89 Ohio St.3d 497, 

501, 733 N.E.2d 609. Each factor is addressed below. 

A. Duties Violated and Injury Caused 

{¶ 21} Respondent’s representation of clients referred from Foreclosure 

Alternatives led to violations of six Disciplinary Rules. Respondent arranged for 

an organization to promote his services, partnered with a nonlawyer to aid the 

other in the unauthorized practice of law and share legal fees, assumed cases 

without adequate preparation, and failed to seek the objectives of his clients. He 

represented at least 28 clients with very little communication and little or no 

knowledge of each client’s particular circumstances. He relegated the negotiation 

of his clients’ legal matters to nonlawyers, possibly leading to foreclosures on his 

clients’ homes. Respondent’s misconduct may very well have resulted in clients’ 

losing their homes. 

B. Mental State 

{¶ 22} Because there has been no evidence presented to the contrary, we 

presume that respondent’s mental state was healthy during the relevant period. 

Disciplinary Counsel v. McCord, 121 Ohio St.3d 497, 2009-Ohio-1517, 905 

N.E.2d 1182, ¶ 45. 

C. Aggravating and Mitigating Circumstances 

{¶ 23} A nonexhaustive list of the aggravating and mitigating 

circumstances that may be considered in disciplinary cases is found in Section 

10(B) of the Rules and Regulations Governing Procedure on Complaints and 

Hearings Before the Board of Commissioners on Grievances and Discipline 

(“BCGD Proc.Reg.”). In mitigation, the board noted that respondent has no prior 
January Term, 2009 

9 

disciplinary record, that he displayed a cooperative attitude during the disciplinary 

process, that he lacked a dishonest or selfish motive, and that three letters were 

submitted to the panel attesting to respondent’s character and reputation. BCGD 

Proc.Reg. 10(B)(2)(a), (b), (d), and (e). On the aggravation side, the board 

acknowledged the vulnerability and resulting harm to the victims of respondent’s 

misconduct. BCGD Proc.Reg. 10(B)(1)(h). The Chandlers were lay people who 

relied on an unnamed attorney to protect their interests in court as Foreclosure 

Alternatives negotiated with the lender. Although respondent did not accept the 

case until after default judgment had been entered against the Chandlers, he still 

neglected to contact his clients, even after filing a motion to strike on their behalf. 

The Chandlers learned of the pending foreclosure sale of their home of 18 years 

through a newspaper notice. 

{¶ 24} The board found this aggravating factor alone to outweigh the 

mitigating factors, considering that many of the problems resulted from 

respondent’s initial agreement with Foreclosure Alternatives. We also find two 

additional aggravating factors. First, respondent committed multiple offenses in 

his representation of each individual client. BCGD Proc.Reg. 10(B)(1)(d). 

Second, respondent engaged in a pattern of misconduct because he represented at 

least 28 clients referred from Foreclosure Alternatives over a two-and-a-half-year 

period when his typical protocol resulted in disciplinary violations. BCGD 

Proc.Reg. 10(B)(1)(c). We adopt the aggravating and mitigating circumstances as 

found by the panel and board, with the addition of the two aggravating 

circumstances. 

D. Applicable Precedent 

{¶ 25} The primary precedent is Cincinnati Bar Assn. v. Mullaney, 119 

Ohio St.3d 412, 2008-Ohio-4541, 894 N.E.2d 1210. In that case, three attorneys 

were disciplined for representing a total of approximately 2,000 clients in the 

manner under review here. Id. at ¶ 5-18, 43-45. The attorneys entered an 
SUPREME COURT OF OHIO

10 

agreement with a company called Foreclosure Solutions, L.L.C., which similarly 

solicited customers that were defendants in foreclosure actions, offering to 

negotiate with the lender and provide an attorney to represent them in court. Id. at 

¶ 8. The company then referred a case to an attorney and transferred a portion of 

the fee paid by the customer. Id. 

{¶ 26} The attorneys would then send each client a brochure describing 

the foreclosure process and file boilerplate pleadings in response to the 

complaints filed against their clients. Id. at ¶ 15. Copies of those pleadings 

would also be sent to the clients. Id. The attorneys did not typically meet with 

the clients or otherwise attempt to determine the circumstances of each client’s 

case for possible legal defenses. Id. at ¶ 17. Instead, one of their standard letters 

asked whether the client knew of any available defenses, similar to respondent’s 

letters here. Id. When judgment was entered against a client, the attorneys would 

notify the client of the pending foreclosure sale and recommend contacting a 

bankruptcy lawyer. Id. at ¶ 15. 

{¶ 27} The facts in Mullaney are strikingly similar to those in the instant 

case. Two of the attorneys in Mullaney were found to have violated the very six 

Disciplinary Rules that respondent violated. Id. at ¶ 19-27. We also took note of 

nearly the same aggravating and mitigating circumstances in Mullaney. Id. at ¶ 

37-42. One attorney in Mullaney was given a public reprimand because we found 

him to be an inexperienced associate who devoted many hours to his clients, but 

was constrained by the standard policies in place at the firm for representing 

clients referred by Foreclosure Solutions. Id. at ¶ 40. An injunction was ordered 

against a second attorney, who was not admitted to practice in Ohio, prohibiting 

him from practicing pro hac vice in the state for two years. Id. at ¶ 42. The third 

attorney, an experienced practitioner most similar to respondent, was given a oneyear suspension, all stayed on the condition of no further misconduct. Id. at ¶ 41. 
January Term, 2009 

11 

{¶ 28} Despite the similarities to Mullaney, the current case is 

distinguishable in ways that warrant a harsher punishment for respondent. First, 

we adopted the recommendation of the board in Mullaney when neither party 

objected to it. Id. at ¶ 1, 4. The relator, here, did object to the board’s 

recommended sanction, asking us to hold that respondent had violated DR 6-

101(A)(2) and 7-101(A)(1), as we did above, and to order a one-year suspension 

with only six months stayed. 

{¶ 29} Second, respondent’s actions specifically relating to the Chandlers 

adds additional misconduct to the protocol followed with his other clients, which 

was nearly identical to that in Mullaney. Respondent testified that when he 

received the Chandlers’ case file from Foreclosure Alternatives, he concluded that 

it was too late to help them because a default judgment had already been entered 

against them. The problem is that respondent took the case anyway, accepted the 

fee, and filed a boilerplate motion to strike without even contacting the Chandlers. 

Respondent in fact never contacted the Chandlers during the entire period he 

represented them. This total lack of communication is more egregious than the 

conduct we found objectionable in Mullaney. 

{¶ 30} We have held that an actual suspension is warranted in somewhat 

similar cases involving attorneys who represented clients through arrangements 

with companies that employed nonlawyers and marketed living trusts to 

customers. Disciplinary Counsel v. Wheatley, 107 Ohio St.3d 224, 2005-Ohio6266, 837 N.E.2d 1188, ¶ 3, 40; Columbus Bar Assn. v. Fishman, 98 Ohio St.3d 

172, 2002-Ohio-7086, 781 N.E.2d 204, ¶ 1, 21; Cincinnati Bar Assn. v. Kathman

(2001), 92 Ohio St.3d 92, 93, 98, 748 N.E.2d 1091. But see Cincinnati Bar Assn. 

v. Heisler, 113 Ohio St.3d 447, 2007-Ohio-2338, 866 N.E.2d 490, ¶ 18, 21 

(ordering six-month stayed suspension of attorney that accepted referrals from a 

nonlawyer company that marketed estate planning services, where attorney 

personally interviewed clients and exercised independent judgment regarding 
SUPREME COURT OF OHIO

12 

each client’s circumstances). In each case, the attorney received referrals from 

the companies after nonlawyer employees collected information from the 

customer or completed the living-trust documentation, which was then forwarded 

to the attorney for final preparation or approval of the legal documents. Wheatley

at ¶ 4-14; Fishman at ¶ 2-8; Kathman at 93-94. The attorney had little or no 

direct communication with clients. Wheatley at ¶ 5, 13-15; Fishman at ¶ 2-7; 

Kathman at 93-94. Respondent’s conduct in the case before us similarly deserves 

an actual suspension. 

E. Determination 

{¶ 31} Respondent’s conduct in this case constituted violations of six 

Disciplinary Rules and warrants an actual suspension from the practice of law. 

We therefore decline to adopt the board’s recommended sanction and instead 

order that respondent be suspended for a period of one year, with six months 

stayed on condition that he commit no further misconduct. If respondent fails to 

comply with this condition, the stay will be lifted, and respondent will serve the 

one-year suspension. Costs are taxed to respondent. 

Judgment accordingly. 

LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur. 

 PFEIFER, O’DONNELL, and LANZINGER, JJ., dissent and would suspend 

respondent from the practice of law in Ohio for one year, all stayed on conditions. 

__________________ 

Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa, 

Assistant Disciplinary Counsel, for relator. 

Reminger Co., L.P.A., and Rick L. Weil, for respondent. 

______________________