DISCIPLINARY COUNSEL v. HOLMES and Kerr.
2018 Ohio 4308, 155 Ohio St. 3d 261, 120 N.E.3d 820 (2018)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An attorney's repeated, intentional disclosure of confidential client information to an attorney at another firm, even without evidence of direct client harm, constitutes a violation of professional conduct rules that warrants a stayed suspension, especially when the conduct continues after discovery.
Facts:
- Thomas Charles Holmes and Ashleigh Brie Kerr, attorneys practicing at separate law firms, began a personal relationship in November 2014.
- Both attorneys primarily represented public school districts in their respective practices.
- Between January 2015 and November 2016, Holmes and Kerr exchanged more than a dozen emails containing confidential client information, including information protected by attorney-client privilege and the work-product doctrine.
- Kerr would forward client requests to Holmes, who would then send her similar documents he had prepared for his own clients, and in some cases, Holmes completed Kerr's work for her.
- In June 2016, Holmes's law firm discovered the improper email exchanges and removed him from the firm.
- Kerr was also confronted by her firm's partners and admitted to the conduct.
- Despite their law firms discovering the misconduct and an investigation commencing, Kerr and Holmes continued to exchange confidential client information.
- In November 2016, Kerr resigned from her law firm.
Procedural Posture:
- The disciplinary counsel filed charges against Thomas Charles Holmes and Ashleigh Brie Kerr in December 2017.
- Holmes and Kerr entered into consent-to-discipline agreements with the disciplinary counsel, stipulating to the facts and rule violations.
- The Board of Professional Conduct reviewed the consent-to-discipline agreements and recommended that the Supreme Court of Ohio adopt them, including the proposed sanction of a stayed six-month suspension.
- The case then came before the Supreme Court of Ohio for a final decision on the board's recommendation.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an attorney's pattern of disclosing confidential client information to another attorney at a different law firm over a nearly two-year period violate professional conduct rules prohibiting the revelation of client information and conduct that adversely reflects on the fitness to practice law?
Opinions:
Majority - Per Curiam
Yes. An attorney's pattern of disclosing confidential client information over an extended period violates professional conduct rules. The court found that Holmes and Kerr violated Prof.Cond.R. 1.6(a) by revealing information relating to client representation and Prof.Cond.R. 8.4(h) by engaging in conduct that adversely reflects on their fitness to practice law. The court distinguished this case from those involving single, isolated incidents of mishandling confidential information, noting that Holmes and Kerr engaged in a pattern of improper disclosures over almost two years. The court found their conduct particularly egregious because it continued even after their respective law firms had discovered their actions. While acknowledging mitigating factors such as no prior discipline and a cooperative attitude, the court determined that the sustained pattern of misconduct warranted a more severe sanction than a public reprimand, but because there was no evidence of client harm, an actual suspension was not necessary.
Analysis:
This decision reinforces the seriousness of an attorney's duty of confidentiality under Prof.Cond.R. 1.6(a). The court signals that a sustained pattern of breaching confidentiality is a significant violation, even if no direct client harm is proven. The ruling establishes that continuing such misconduct after being discovered is a major aggravating factor. This case serves as a precedent that distinguishes between a single lapse in judgment, which might warrant a public reprimand, and a prolonged course of intentional misconduct, which justifies a stayed suspension.
