An attorney disciplinary case before the Ohio Supreme Court raises an unusual ethics-related question about how romantically involved lawyers deal with client information.
The Ohio high court is set to review a proposed disciplinary sanction against two education law attorneys, Thomas Holmes and Ashleigh Kerr, who are engaged to one another and admitted to exchanging emails that included work product and confidential client information.
Although Holmes and Kerr focus on similar types of law—namely the representation of public school districts—they have never shared clients and they worked at different firm. Holmes practiced most recently at Day Ketterer in Hudson, Ohio, and Kerr practiced at O’Toole McLaughlin Dooley & Pecora in Sheffield Village, Ohio.
In a disciplinary complaint lodged in December against the couple, the Ohio Supreme Court’s board of professional conduct said the two have lived together since October 2015 and became engaged in November of that year. From January 2015 to November 2016, the disciplinary complaint alleged, the two exchanged information related to their client representations on more than a dozen occasions.
“Generally,” the board alleged, “Kerr forwarded Holmes an email exchange with her client in which her client requested a legal document (i.e. a contract, waiver or opinion). In response, Holmes forwarded Kerr an email exchange with his client which attached a similar legal document that he had drafted for his client. More often than not, Holmes ultimately completed Kerr’s work relative to her particular client.”
Of the two, Holmes has been a practicing lawyer for a longer time—he was admitted to the Ohio bar in 2001, while Kerr was admitted in 2009. Their conduct allegedly violated a professional conduct rule requiring lawyers to maintain attorney-client privilege and a rule prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law, according to the board.
Following the disciplinary complaint in December against Holmes and Kerr, the Ohio board of professional conduct on June 11 recommended a six-month suspension for each of the lawyers that would be fully stayed as long as neither engages in any other misconduct—a sanction that Holmes and Kerr have consented to.
The board’s recommendation noted that both Kerr and Holmes maintained a cooperative attitude during the disciplinary case and that neither of them had prior discipline. Those factors weighed in favor of a lighter sanction, while the board cited the ongoing nature of the information exchanges as an aggravating factor. Ultimately, the board said a stayed six-month suspension was an appropriate sanction.
Under the Ohio attorney discipline process, the board’s recommendation of a stayed suspension is subject to review by the Ohio Supreme Court.
A lawyer who represented Holmes in the disciplinary case, Jonathan Coughlan, declined to comment on the disciplinary case. He said, however, that Holmes has departed Day Ketterer alongside two other colleagues and the trio is in the process of starting a new firm. The departure had nothing to do with the disciplinary case, said Coughlan.
George Jonson of Montgomery Rennie Jonson, who represented Kerr in the disciplinary case, declined to comment on the case but said that Kerr is no longer with the O’Toole McLaughlin firm.