[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Holmes and Kerr, Slip Opinion No. 2018-Ohio-4308.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-4308
DISCIPLINARY COUNSEL v. HOLMES AND KERR.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Holmes and Kerr, Slip Opinion No.
2018-Ohio-4308.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including revealing information relating to the representation of a client—
Six-month stayed suspension.
(No. 2018-0818—Submitted June 26, 2018—Decided October 25, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-070.
_______________________
Per Curiam.
{¶ 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.
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{¶ 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 which 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.
{¶ 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
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January Term, 2018
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 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
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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 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, 677
N.E.2d 1190 (1997). Because Holmes and Kerr had disclosed multiple client
confidences over an extended period of time—and because they continued to
engage in the misconduct after their law firms had discovered their actions—the
board concluded that a more severe sanction was required here than in Psenicka
and Yurich. However, because there was no evidence that Holmes’s and Kerr’s
misconduct had harmed their clients and because they both have clean disciplinary
records, the board also determined that an actual suspension was not warranted.
{¶ 10} We agree that Holmes and Kerr engaged in the stipulated misconduct
and that based on our precedent, a stayed six-month suspension is appropriate. We
therefore adopt the parties’ consent-to-discipline agreements.
{¶ 11} Thomas Charles Holmes and Ashleigh Brie Kerr are hereby
suspended from the practice of law for six months, all stayed on the condition that
they engage in no further misconduct. If either Holmes or Kerr engages in further
misconduct, the stay of his or her suspension will be lifted and he or she will serve
the full six-month suspension.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEGENARO, JJ., concur.
DEWINE, J., not participating.
_________________
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January Term, 2018
Scott J. Drexel, Disciplinary Counsel, and Jennifer Bondurant, Assistant
Disciplinary Counsel, for relator.
Jonathan E. Coughlan, for respondent Thomas Charles Holmes.
Montgomery, Rennie & Jonson, L.P.A., and George D. Jonson, for
respondent Ashleigh Brie Kerr.
_________________
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