The Risk Manager, Fall 2018

Two Ohio lawyers face disciplinary action for sharing confidential client information. Thomas Holmes and Ashleigh Kerr, practicing in different firms, meet at a conference, began dating, moved in together, and became engaged. Both lawyers practiced school law and over a period of two years they exchanged confidential information over a dozen times. A typical exchange was a client email asking for a legal document that one of the lawyers would forward to the other asking for help. The receiving lawyer would then email back with an attachment of a relevant document prepared for a client without redacting client information. They were charged with violation of Ohio Professional Conduct Rule 1.6 – a lawyer shall not reveal information relating to the representation of a client; and Rule 8.1(h) – a lawyer shall not engage in conduct that adversely reflects on a lawyer’s fitness to practice law.

The lawyers stipulated to the facts and accepted discipline by consent. The Board of Professional Conduct noted that the lawyers had no prior discipline, had been cooperative, and had evidence of their good character. The Board also took into account the aggravating facts that the lawyers had made multiple disclosures over two years and continued to do so after their firms discovered the conduct. The Board recommended that the lawyers be given six-month suspensions, stayed on the condition of no further misconduct. The Ohio Supreme Court now has the case for consideration.

Several commentators on this disciplinary action observed that this was a novel case and that the lawyers’ misconduct was easily avoidable. Lawyers, as a professional courtesy, often assist non-affiliated lawyers with a legal question. As a matter of risk management, all one has to do is never identify or discuss clients when providing assistance. Carefully redact client information from any document given to a non-affiliated lawyer.

Disciplinary Counsel vs. Thomas Charles Holmes and Ashleigh Brie Kerr, Docket No. 2018-0818, Ohio Sup. Ct. 6/11/2018).