DISCIPLINARY COUNSEL v. HOLMES and Kerr.

2018 Ohio 4308, 120 N.E.3d 820, 155 Ohio St. 3d 261
CourtOhio Supreme Court
DecidedOctober 25, 2018
Docket2018-0818
StatusPublished
Cited by2 cases

This text of 2018 Ohio 4308 (DISCIPLINARY COUNSEL v. HOLMES and Kerr.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DISCIPLINARY COUNSEL v. HOLMES and Kerr., 2018 Ohio 4308, 120 N.E.3d 820, 155 Ohio St. 3d 261 (Ohio 2018).

Opinion

Per Curiam.

*261 {¶ 1} Respondent Thomas Charles Holmes of Aurora, Ohio, Attorney Registration No. 0073794, was admitted to the practice of law in Ohio in 2001. Respondent Ashleigh Brie Kerr of Aurora, Ohio, Attorney Registration No. 0085992, was admitted to the practice of law in Ohio in 2010.

{¶ 2} In December 2017, relator, disciplinary counsel, charged Holmes and Kerr with violating the professional-conduct rules for improperly disclosing confidential client information. The Board of Professional Conduct considered the case on the parties' consent-to-discipline agreements. See Gov.Bar R. V(16).

{¶ 3} In their agreements, Holmes and Kerr stipulated that after meeting at a conference in November 2014, they commenced a personal relationship. At the time, they each primarily represented public school districts in their respective law practices. Between January 2015 and November 2016, they exchanged more than a dozen e-mails in which they revealed client information to each other, including information protected by the work-product doctrine or the attorney-client privilege, although they were not employed by the same law firm and did not jointly represent any clients. In general, Kerr forwarded to Holmes e-mails from her clients requesting legal documents. In response, Holmes forwarded to Kerr e-mails that he had exchanged with his clients that included similar documents he had prepared for them. Holmes and Kerr stipulated that in about one-third of these e-mail exchanges, Holmes had ultimately completed Kerr's work for her.

{¶ 4} In June 2016, Holmes's law firm discovered that he had disclosed confidential client information to Kerr and as a result, removed him from the firm. A partner in Holmes's former law firm also filed a grievance against him, and the law firm's counsel notified Kerr's employer of the e-mail exchanges. Kerr consequently admitted to the partners of her firm that she and Holmes had exchanged client information and that he had assisted her with her work.

*262 {¶ 5} Notwithstanding relator's commencement of an investigation, Kerr continued to send confidential client information to Holmes and he continued to assist her in preparing legal documents for her clients. In November 2016, Kerr resigned from her law firm.

{¶ 6} Based on this conduct, the parties stipulated that Holmes and Kerr violated Prof.Cond.R. 1.6(a) (prohibiting a lawyer from revealing information relating to the representation of a client, with exceptions not relevant here) and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely *822 reflects on the lawyer's fitness to practice law). As aggravating factors, the parties agreed that Holmes and Kerr each engaged in a pattern of misconduct. See Gov.Bar R. V(13)(B)(3). The stipulated mitigating factors were both attorneys' absence of prior discipline, cooperative attitudes toward the disciplinary proceedings, and evidence of good character.

{¶ 7} In recommending a sanction, the parties agreed that Holmes's and Kerr's misconduct fell somewhere between the attorney misconduct in Cleveland Metro. Bar Assn. v. Heben , 150 Ohio St.3d 335 , 2017-Ohio-6965 , 81 N.E.3d 469 , and Disciplinary Counsel v. Shaver , 121 Ohio St.3d 393 , 2009-Ohio-1385 , 904 N.E.2d 883 . In Heben , we imposed a stayed one-year suspension on an attorney who unnecessarily revealed attorney-client communications in a motion to withdraw as counsel-apparently in retaliation for the client's terminating him without full payment. In Shaver , we publicly reprimanded an attorney who left about 20 boxes containing confidential client files outside a dumpster near his former office.

{¶ 8} The parties here stipulated that Holmes's and Kerr's misconduct was less egregious than the misconduct in Heben because that attorney had disclosed damaging client information in a publicly filed document. However, the parties also noted that unlike the isolated incident of failing to protect the confidentiality of client files in Shaver , Holmes and Kerr engaged in a pattern of improper disclosures over an almost two-year period. The parties therefore recommended a stayed six-month suspension.

{¶ 9} The board concluded that the consent-to-discipline agreements conform to the requirements of Gov.Bar R. V(16) and recommends that we adopt the agreements. Regarding the Prof.Cond.R. 8.4(h) violation, the board specifically found that because Holmes and Kerr had improperly disclosed confidential client information over an almost two-year period, their conduct was sufficiently egregious to constitute a separate violation of that rule. See Disciplinary Counsel v. Bricker , 137 Ohio St.3d 35 , 2013-Ohio-3998 , 997 N.E.2d 500 . To support the recommended sanction, the board cited two cases in which we publicly reprimanded attorneys who had engaged in single incidents of improperly revealing client confidences. See *263 Geauga Cty. Bar Assn. v. Psenicka , 62 Ohio St.3d 35 , 577 N.E.2d 1074 (1991) ; Disciplinary Counsel v. Yurich , 78 Ohio St.3d 315

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2018 Ohio 4308, 120 N.E.3d 820, 155 Ohio St. 3d 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-holmes-and-kerr-ohio-2018.