Opinion

Dayton Bar Assn. v. Daly

  • 2025 Ohio 1624
Court
Ohio Supreme Court
Filed
May 8, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 35.2%

The opinion

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Dayton Bar Assn. v. Daly, Slip Opinion No. 2025-Ohio-1624.]

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. 2025-OHIO-1624

DAYTON BAR ASSOCIATION v. DALY.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Dayton Bar Assn. v. Daly, Slip Opinion No. 2025-Ohio-1624.]

Attorneys—Misconduct—Attorney violated Prof.Cond.R. 1.6(a) by twice revealing

confidential client information to a police officer with knowledge that doing

so could cause his former client serious legal harm—Eighteen-month

suspension, stayed on conditions.

(No. 2024-1399—Submitted January 7, 2025—Decided May 8, 2025.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2024-005.

__________________

The per curiam opinion below was joined by DEWINE, DETERS, HAWKINS,

and SHANAHAN, JJ. KENNEDY, C.J., concurred in part and dissented in part, with

an opinion joined by FISCHER, J. BRUNNER, J., did not participate.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, William Thomas Daly, of Port St. Lucie, Florida,

Attorney Registration No. 0069300, was admitted to the practice of law in Ohio in

1998.1

{¶ 2} In a January 2024 complaint, relator, Dayton Bar Association,

charged Daly with 12 violations of the Rules of Professional Conduct arising from

his representation of a single client. In July 2024, the parties entered into

stipulations of fact, misconduct, and aggravating and mitigating factors. In those

stipulations, Daly admitted that his conduct violated Prof.Cond.R. 1.6 (prohibiting

a lawyer from revealing confidential client information without the client’s

informed consent). The parties jointly requested the dismissal of all other rule

violations alleged in relator’s complaint and agreed to withdraw all pending

motions and objections. They further agreed that the appropriate sanction for

Daly’s misconduct is a conditionally stayed 18-month suspension.

{¶ 3} Daly was the only witness to testify at the hearing before a three-

member panel of the Board of Professional Conduct. After the hearing and

consistent with the parties’ stipulations, the panel unanimously dismissed 11 of the

12 alleged rule violations. The panel later issued a report finding by clear and

convincing evidence that Daly had violated Prof.Cond.R. 1.6(a) and recommending

that a conditionally stayed 18-month suspension be imposed for that misconduct.

The board adopted the panel’s findings of fact, conclusions of law, and

recommended sanction.

{¶ 4} No objections have been filed. However, Daly filed motions “to

restrict public access to the dismissed ethics complaint counts” and “to adopt the

current and standing prior court orders sealing those documents.” He subsequently

1. Daly’s state bar admissions also include New York and North Carolina.

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filed what purports to be an affidavit in support of those motions. Relator filed a

motion to strike that affidavit, and Daly responded to that motion.

{¶ 5} After reviewing the record and our precedent, we adopt the board’s

findings of misconduct and recommended sanction. Relator’s motion to strike

Daly’s affidavit is granted, and Daly’s motions to restrict public access and to adopt

the sealing orders of other courts are summarily denied.

MISCONDUCT

{¶ 6} Daly began representing S.H. in April 2016, after she was indicted on

a burglary charge in the Montgomery County Common Pleas Court. At that time,

S.H. was a single mother in her early twenties who was having financial difficulties

and battling drug addiction. Under a plea deal negotiated by Daly, S.H. pleaded

guilty to a reduced burglary charge and was sentenced to community control in July

2016.

{¶ 7} In August 2018, the trial court issued a notice for a community-

control-sanction-revocation hearing in S.H.’s criminal case based in part on her

failure to abstain from using illegal drugs. Daly represented S.H. at the hearing. In

September 2018, S.H. was reinstated to community control and assigned to the trial

court’s Women’s Therapeutic Docket, a court program designed to closely monitor

and aid women in need of intensive therapeutic services for drug addiction and

mental-health issues.

{¶ 8} In addition to the criminal case, Daly represented S.H. in a child-

custody matter in the Montgomery County Juvenile Court. In August 2018, he filed

a motion on S.H.’s behalf seeking sole custody of her minor child, child support, a

protective order against the child’s father, and supervised parenting time for the

father. Daly also defended S.H. against the father’s claim for full custody, in which

the father alleged that S.H. was abusing drugs and was unfit to care for the child.

{¶ 9} During his representation of S.H., Daly came to believe that S.H. had

stolen a necklace from his car. He tried, without success, to pressure her into

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returning the necklace. On October 31, 2018, S.H. sought and obtained an ex parte

civil protection order against Daly. Since that time, Daly has disputed the validity

of the facts alleged by S.H. in support of that order and also maintained that the

facts alleged by S.H. did not warrant the issuance of a civil protection order against

him.

{¶ 10} On November 1, 2018, Daly filed a motion to withdraw from

representing S.H. in her custody case. The next day, he met twice with Officer

Steven Perfetti of the Riverside Police Department, seeking assistance in

recovering the missing necklace.

{¶ 11} During his first meeting with Officer Perfetti, Daly acknowledged

that S.H. had obtained a civil protection order against him. Daly told the officer

that S.H. was homeless, but he identified the house where S.H. was staying with a

person who was actively and illegally dealing “pills and weed.” He claimed that

S.H. had admitted to him that she was having sex daily with that drug dealer so that

she would have a place to stay. Daly also told the officer that S.H. was engaging

in prostitution out of that house and that she was using heroin, marijuana, and

“roxys” and other pills. Daly gave the officer two phone numbers for S.H.,

explaining that one of them was the number the officer would call if he wanted

“weed, pills, Vicodin, ‘roxys,’ or Percocets.” He asked Officer Perfetti to contact

S.H. quickly because he was worried that she would get high later and would not

respond.

{¶ 12} During his second meeting with Officer Perfetti, Daly told the officer

that S.H. was driving a vehicle that had tags registered to another person, and he

explained that that was how S.H. got away with driving without a license. Daly

admitted at his disciplinary hearing that he had learned the facts he related to Officer

Perfetti solely from his confidential attorney-client communications with S.H.

{¶ 13} Prof.Cond.R. 1.6(a) prohibits a lawyer from “reveal[ing]

information relating to the representation of a client, including information

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protected by the attorney-client privilege under applicable law, unless the client

gives informed consent, the disclosure is impliedly authorized in order to carry out

the representation, or the disclosure is permitted by division (b) or required by

division (d)” of the rule.

{¶ 14} However, Prof.Cond.R. 1.6(b) permits a lawyer to “reveal

information relat[ed] to the representation of a client, including information

protected by the attorney-client privilege . . . , to the extent the lawyer reasonably

believes disclosure is necessary” to achieve certain enumerated objectives. Among

those objectives are:

• preventing death, substantial bodily harm, or the commission of a crime;

• mitigating the damage to the financial interests or property of others when the

client has used the lawyer’s services to further an illegal or fraudulent act;

• securing legal advice about the lawyer’s compliance with the professional-

conduct rules;

• permitting the lawyer to establish a claim or defense in controversies between

the lawyer and the client or to defend himself in civil or criminal matters based

on conduct involving the client;

• permitting the lawyer to respond to allegations in any proceeding, including

disciplinary proceedings, regarding the lawyer’s representation of the client;

• permitting the client to comply with other law or a court order; and

• detecting and resolving conflicts of interest in the event of changes in the

lawyer’s employment or firm composition.

See Prof.Cond.R. 1.6(b).

{¶ 15} In contrast, Prof.Cond.R. 1.6(d) requires a lawyer to reveal

information related to the representation of a client to the extent the lawyer

reasonably believes the disclosure is necessary to comply with Prof.Cond.R. 3.3

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(regarding candor toward the tribunal) or Prof.Cond.R. 4.1 (regarding the

truthfulness of a lawyer’s statements to others).

{¶ 16} The parties stipulated that the information Daly disclosed to Officer

Perfetti was confidential client information that he knew from representing S.H.

and that no exception set forth in Prof.Cond.R. 1.6 either permitted or required Daly

to disclose it. In addition, the parties acknowledged that Daly’s disclosure of S.H.’s

confidential client information could have resulted in serious consequences for

S.H., including the potential for new criminal charges, revocation of the

community-control sanction imposed under the plea deal in her criminal case, and

adverse rulings in her custody case.

{¶ 17} On these facts, the board found by clear and convincing evidence

that Daly had violated Prof.Cond.R. 1.6(a). We adopt the board’s finding of

misconduct.

SANCTION

{¶ 18} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the ethical duties that the attorney violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

{¶ 19} The parties stipulated and the board found that four aggravating

factors are present in this case. First, Daly acted with a selfish motive by disclosing

S.H.’s confidential client information in retaliation for her allegedly taking a

necklace from him and obtaining an ex parte civil protection order against him. See

Gov.Bar R. V(13)(B)(2). Daly also engaged in a pattern of misconduct and

committed multiple offenses by disclosing S.H.’s confidential client information in

two separate meetings with Officer Perfetti. See Gov.Bar R. V(13)(B)(3) and (4).

And finally, Daly initially denied his misconduct and was generally uncooperative

in the disciplinary process. See Gov.Bar R. V(13)(B)(5). Although the board found

that the stipulated facts and evidence demonstrate that S.H. was clearly a vulnerable

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client, it concluded that Daly’s disclosures of S.H.’s confidential client information

ultimately had no effect on her criminal or custody cases.

{¶ 20} As for mitigation, the parties stipulated and the board found that

Daly has no prior discipline and that he eventually cooperated in the disciplinary

proceedings and admitted that his conduct violated Prof.Cond.R. 1.6(a). See

Gov.Bar R. V(13)(C)(1) and (3).

{¶ 21} The parties stipulated that a conditionally stayed 18-month

suspension is the appropriate sanction for Daly’s misconduct. But in his closing

argument at the disciplinary hearing, Daly withdrew his agreement to that sanction

and argued in favor of a conditionally stayed 12-month suspension.

{¶ 22} In support of its recommended sanction, relator advanced two cases

that involve Prof.Cond.R. 1.6(a) violations: Cleveland Metro. Bar Assn. v. Heben,

2017-Ohio-6965, and Disciplinary Counsel v. Holmes and Kerr, 2018-Ohio-4308.

{¶ 23} In Heben, an attorney revealed a client’s confidential information in

an affidavit submitted with a publicly filed motion to withdraw from the

representation; he did so in apparent retaliation for the client’s alleged failure to

pay his legal fees, thereby committing a single violation of Prof.Cond.R. 1.6(a).

The judge presiding over the client’s case struck Heben’s affidavit from the record

because his disclosures were inappropriate and unnecessary for purposes of seeking

withdrawal. Aggravating factors consisted of Heben’s selfish motive and initial

failure to acknowledge the wrongful nature of his conduct. Heben at ¶ 14. In

mitigation, Heben had no prior disciplinary record and made full and free

disclosures to the board and exhibited a cooperative attitude toward the disciplinary

proceedings. Id. at 16. He also submitted numerous letters from judges, attorneys,

and laypersons attesting to his good character and reputation, as well as his

community and charitable services. Id.

{¶ 24} Distinguishing the facts of Heben from those of Akron Bar Assn. v.

Holder, 2004-Ohio-2835—in which we imposed a two-year suspension with 18

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months conditionally stayed on an attorney who disclosed client confidences or

secrets without authorization and committed other misconduct, including

groundlessly suing his client for fraud, violating conflict-of-interest rules, and

engaging in dishonest conduct—we concluded that a fully stayed one-year

suspension was the appropriate sanction for Heben’s misconduct. Heben at ¶ 18-

19, 23.

{¶ 25} In Holmes and Kerr, two attorneys who represented public-school

districts while working in separate law practices commenced a personal

relationship. In more than a dozen emails exchanged over a period of nearly two

years, they revealed confidential client information to each other. Moreover, the

misconduct continued even after the attorneys’ respective law firms discovered

their actions and after disciplinary counsel commenced his investigation. But in

contrast to the attorney in Heben, the attorneys in Holmes and Kerr did not disclose

damaging client information in a publicly filed document. In addition to finding

that Holmes and Kerr’s conduct violated Prof.Cond.R. 1.6(a) as Daly has in this

case, we also found that their conduct violated Prof.Cond.R. 8.4(h) (prohibiting a

lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to

practice law). See Holmes and Kerr, 2018-Ohio-4308, at ¶ 6.

{¶ 26} The sole aggravating factor in Holmes and Kerr was that the

attorneys had engaged in a pattern of misconduct. Id. Mitigating factors consisted

of their clean disciplinary records, cooperative attitudes toward the disciplinary

proceedings, and evidence of their good character. Id. On those facts, we adopted

the parties’ consent-to-discipline agreements and imposed conditionally stayed six-

month suspensions on both Holmes and Kerr. Id. at ¶ 10-11.

{¶ 27} In this case, Daly represented a young, troubled, single mother who

was struggling with drug addiction and the possibility that she could lose custody

of her child. S.H. needed to be able to freely discuss her problems with her attorney

and be confident that he would use that information to advise her in her legal

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matters, rather than use the information against her. On two separate occasions,

however, Daly deliberately disclosed S.H.’s confidential client information to a

police officer, and he did so with the knowledge that his disclosures could cause

S.H. serious legal harm. In his disciplinary-hearing testimony, Daly explained that

he made the disclosures to Officer Perfetti because he had been trying for ten days

to recover a necklace from S.H. that he believed she had stolen from him and

because he felt “stymied” when she obtained an ex parte civil protection order

against him based on what he believed to be false evidence. He described his state

of mind as “[f]rustrated; angry; upset; humiliated; [and] disappointed.” He

acknowledged, however, that his feelings of frustration were not an excuse for his

misconduct.

{¶ 28} In his closing argument at the disciplinary hearing, Daly sought to

distinguish his misconduct in this case from the misconduct that was at issue in

Heben, noting that Heben had attempted to justify his disclosure of confidential

client information and never really took responsibility for his misconduct. Daly

argued that he should be credited for offering no such excuses for his actions and

for eventually acknowledging that what he did was wrong. Asserting that Heben’s

conduct was worse than his own, Daly argued that he should receive a sanction no

greater than the fully stayed 12-month suspension this court imposed in Heben.

{¶ 29} The board noted, however, that in his closing argument, Daly had

overlooked the fact that Heben had presented significant evidence of his good

character and reputation, while Daly offered none. Moreover, the board found that

the confidential client information Daly had divulged to Officer Perfetti was

“intentionally degrading and belittling” to S.H. and that its disclosure could have

caused S.H. to be incarcerated or to lose custody of her child. The board rejected

Daly’s argument for a lesser sanction and found that his misconduct warranted a

more serious sanction than that imposed in Heben. The board therefore

recommends that we suspend Daly from the practice of law for 18 months with the

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entire suspension stayed on the conditions that he commit no further misconduct

and that he be assessed the costs of these disciplinary proceedings.

{¶ 30} “A fundamental principle in the attorney-client relationship is that

the attorney shall maintain the confidentiality of any information learned during the

attorney-client relationship.” Kala v. Aluminum Smelting & Refining Co., Inc.,

1998-Ohio-439, ¶ 12. The purpose of this confidentiality is “to encourage full and

frank communication between attorneys and their clients and thereby promote

broader public interests in the observance of law and administration of justice.”

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

{¶ 31} In this case, Daly violated that fundamental principal of the attorney-

client relationship by disclosing to a police officer confidential information about

S.H. that he had learned while representing her. He did so in a selfish effort to

recover property that S.H. had allegedly stolen from him. Daly’s unauthorized

disclosure of that information posed a significant threat to S.H.’s liberty and her

ability to maintain custody of her child—the two interests that Daly was hired and

duty bound to protect. Daly made those damaging disclosures in two separate

meetings with the officer, and he initially denied his misconduct and was generally

uncooperative throughout most of the disciplinary process. And although he

practiced law for approximately 20 years without discipline before engaging in the

above-described misconduct, in contrast to the attorney in Heben, Daly has not

offered any evidence to otherwise establish his good character and reputation.

{¶ 32} Based on our review of the record, we agree with the board’s

conclusion that a conditionally stayed 18-month suspension is the appropriate

sanction for Daly’s misconduct.

MOTIONS

{¶ 33} On January 30, 2025, Daly filed motions “to restrict public access to

the dismissed ethics complaint counts” and “to adopt the current and standing prior

court orders sealing those documents.” Nearly three weeks later, on February 18,

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Daly filed an affidavit in support of those motions. And on February 21, relator

filed a motion to strike Daly’s affidavit. Daly responded to that motion three days

later. We grant relator’s motion to strike Daly’s affidavit. Daly’s motions,

however, are summarily denied.

CONCLUSION

{¶ 34} Accordingly, William Thomas Daly is suspended from the practice

of law in Ohio for 18 months, with the entire suspension stayed on the conditions

that he commit no further misconduct and that he pay the costs of these proceedings.

If Daly fails to comply with either condition of the stay, the stay will be revoked

and he will serve the entire 18-month suspension. Relator’s February 21, 2025

motion to strike is granted, and Daly’s January 30, 2025 motions are summarily

denied.

Judgment accordingly.

__________________

KENNEDY, C.J., joined by FISCHER, J., concurring in part and

dissenting in part.

{¶ 35} This case is about respondent William Thomas Daly’s vindictive

breach of the attorney-client privilege. I agree with the majority that Daly’s

conduct violated Prof.Cond.R. 1.6(a) (prohibiting a lawyer from revealing

confidential client information without the client’s informed consent). I also agree

with the majority’s resolution of Daly’s motions. But I disagree with the majority’s

decision to adopt the Board of Professional Conduct’s recommendation to suspend

Daly from the practice of law for 18 months, with the entire suspension stayed on

the condition that he commit no further misconduct. Instead, our precedent

supports indefinitely suspending Daly from the practice of law.

{¶ 36} In the past, this court has held that “a lawyer’s duty to provide

undivided loyalty to a client is paramount.” Columbus Bar Assn. v. Ross, 2006-

Ohio-5, ¶ 29. That undivided loyalty includes maintaining the confidentiality of

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any information that the attorney learns during the attorney-client relationship. See

Kala v. Aluminum Smelting & Refining Co., Inc., 1998-Ohio-439, ¶ 12.

{¶ 37} Accordingly, because our caselaw supports indefinitely suspending

Daly from the practice of law, I dissent in part.

Law and Analysis

{¶ 38} “Each disciplinary case involves unique facts and

circumstances.” Gov.Bar R. V(13)(A). When we review cases involving similar

attorney misconduct and aggravating and mitigating factors, we apply our

precedent to ensure a fair and equitable disciplinary system. Disciplinary Counsel

v. Nowicki, 2023-Ohio-3079, ¶ 35 (Kennedy, C.J., concurring in part and dissenting

in part).

{¶ 39} “The primary purpose of attorney discipline ‘is not to punish the

offender, but to protect the public.’” Id. at ¶ 82 (Kennedy, C.J., concurring in part

and dissenting in part), quoting Disciplinary Counsel v. O’Neill, 2004-Ohio-4704,

¶ 53. “‘Protecting the public . . . is not strictly limited to protecting clients from a

specific attorney’s potential misconduct. Imposing attorney-discipline sanctions

also protects the public by demonstrating to the bar and the public that this type of

conduct will not be tolerated.’” (Ellipses in original.) Id. at ¶ 83 (Kennedy, C.J.,

concurring in part and dissenting in part), quoting Disciplinary Counsel v.

Schuman, 2017-Ohio-8800, ¶ 17.

The Attorney-Client Privilege

{¶ 40} The attorney-client privilege forbids an attorney from disclosing to

anyone knowledge “relat[ing] to the services for which he was employed, whether

it is gained from words or merely by observations.” Taylor v. Sheldon, 172 Ohio

St. 118 (1961), paragraph four of the syllabus. It is “is one of the oldest recognized

privileges for confidential communications.” Swidler & Berlin v. United States,

524 U.S. 399, 403 (1998).

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{¶ 41} We have acknowledged that the privilege “is very ancient, very

sacred, and universally admitted and approved.” Duttenhofer v. State, 34 Ohio St.

91, 92 (1877). At the time, “the bench and bar never complained of it, always

enforced it, and jealously guarded it.” Id.

{¶ 42} The attorney-client privilege is necessary “to permit complete

freedom of disclosure by a client to his attorney without fear that any facts so

disclosed will be used against him.” Taylor at 121. Essentially, attorneys must

keep client communications “‘as secret and inviolable as if the facts had remained

in the knowledge of the client alone.’” Foley v. Poschke, 137 Ohio St. 593, 595

(1941), quoting Dickerson v. Dickerson, 322 Ill. 492, 500 (1926).

Caselaw Supports Indefinitely Suspending Daly

{¶ 43} In each of the following cases, this court indefinitely suspended from

the practice of law attorneys who violated the attorney-client privilege.

{¶ 44} In Stark Cty. Bar Assn. v. Osborne, Osborne entered various real-

estate transactions with a physically and mentally incompetent client. 1 Ohio St.3d

140 (1982). The board found that the client lost money in each transaction and that

Osborne betrayed his client’s confidences by representing a third party with

interests adverse to the client’s. The board also found that Osborne had entered a

business relationship with a different client in which his personal interests would

affect his judgment, that Osborne used the client’s confidences to his own

advantage, and that Osborne’s conduct was prejudicial to the administration of

justice.

{¶ 45} The court did not explicitly state what Osborne revealed, but it is

implied that if an attorney enters a transaction with a client and the client loses

money, the attorney used the client’s confidences to the client’s detriment.

Findlay/Hancock Cty. Bar Assn. v. Filkins, 2000-Ohio-491, ¶ 56 (holding “that

where an attorney represents himself and his client in a business deal, and the client

loses money on the deal, a presumption arises that the attorney used client

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confidences to his client’s disadvantage”). Consequently, this court adopted the

board’s recommended sanction and indefinitely suspended Osborne. Osborne at

142-143.

{¶ 46} Next, in Greater Cleveland Bar Assn. v. Watkins, this court

indefinitely suspended an attorney who revealed confidential client information and

used that information to his advantage. 68 Ohio St.2d 11 (1981). In that case,

Watkins’s client disputed his legal fees and filed a complaint with the relator.

During the relator’s investigation, the client asked the relator to drop the complaint

because Watkins had contacted the client’s employer and threatened that if relator

did not stop its investigation, he would report the client and the client’s employer

to the authorities for paying the client “somewhat under the table.” Id. at 12.

{¶ 47} The client had shared with Watkins information about how his

employer paid him, but the client had not authorized Watkins to release that

information. This court adopted the board’s findings and recommended sanction

to indefinitely suspend Watkins from the practice of law. Id.

{¶ 48} Finally, in Cleveland Bar Assn. v. Fox, we indefinitely suspended an

attorney for violating the attorney-client privilege when he used confidential client

information to the client’s disadvantage. 1996-Ohio-250. Fox represented a driver

and passenger who had been in a car accident. The driver lost his claim in

arbitration and appealed. Fox then withdrew as the driver’s counsel and cross-

claimed against him on the passenger’s behalf. The board found that Fox, who did

not respond to the allegations against him, had failed to preserve a client’s secrets

by using the driver’s confidential client information against him in the cross-claim.

The board also found that Fox accepted employment in which his personal interests

would impede his judgment and represented a third party with interests adverse to

his client’s. We adopted the board’s recommended sanction and indefinitely

suspended Fox from the practice of law. Id. at ¶ 6.

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{¶ 49} Daly’s violation of the attorney-client privilege is similar to the

violations in Osborne, Watkins, and Fox. S.H. was a vulnerable client—a single

mother battling a drug addiction and engaged in a child-custody dispute. Daly

vindictively attempted to use S.H.’s confidential client information—that she lived

with a drug dealer, engaged in prostitution, and drove without a license—to get her

in criminal trouble. His use of S.H.’s confidential client information did not come

close to falling within an exception to the disclosure of such information. See State

ex rel. Nix v. Cleveland, 1998-Ohio-290, ¶ 20 (holding that “[a] communication is

excepted from the attorney-client privilege if it is undertaken for the purpose of

committing or continuing a crime,” but “the mere fact that communications may be

related to a crime is insufficient to overcome the attorney-client privilege”). Daly

reported her to the police because he believed that S.H. stole a necklace from his

car—with no explanation as to why she was there, what she was doing there, or

how she got into his car in the first place.

{¶ 50} The attorneys in Fox and Osborne used confidential client

information to financially hurt their clients and benefit themselves, and this court

indefinitely suspended them. Fox at ¶ 2, 6; Osborne, 1 Ohio St.3d at 142-143. And

in Watkins, the attorney had merely threatened to use confidential client

information against the client, and this court indefinitely suspended him. Watkins,

68 Ohio St.2d at 12. If Watkins’s threat that he would use confidential client

information to get his client and the client’s employer in legal trouble warranted

imposing an indefinite suspension, certainly Daly’s going to the police and using

S.H.’s confidential client information to try to get her in legal trouble does too.

{¶ 51} For these reasons, Daly’s misconduct warrants an indefinite

suspension from the practice of law.

The Majority’s Cases Are Distinguishable

{¶ 52} To support Daly’s sanction, the majority relies on three cases:

Cleveland Metro. Bar Assn. v. Heben, 2017-Ohio-6965, Akron Bar Assn. v. Holder,

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2004-Ohio-2835, and Disciplinary Counsel v. Holmes and Kerr, 2018-Ohio-4308.

But the flagrancy of Daly’s conduct exceeds the misconduct in each of those cases.

{¶ 53} In Heben, the board found that Heben violated Prof.Cond.R. 1.6(a).

Heben represented a client in a divorce proceeding and withdrew as counsel by

filing an affidavit stating his reasons for withdrawing. He “recounted

communications he had had with [his client] about the scope of his representation

and his compensation, accused [his client] of refusing to pay his agreed-upon fees

‘without cause,’ and disclosed legal advice that he had given [his client].” Heben

at ¶ 5.

{¶ 54} At his disciplinary hearing, Heben claimed that he included that

information because of a fee dispute with the client. As for aggravating factors, the

board found that Heben had a selfish motive and that he did not acknowledge the

wrongful nature of his conduct. Id. at ¶ 14. In mitigation, the board found that

Heben had no disciplinary record, made full and free disclosure to the board,

cooperated in the disciplinary process, and submitted letters from the bench and bar

concerning his good character and reputation. Id. at ¶ 16. This court adopted the

board’s recommended sanction and suspended Heben from the practice of law for

one year, with the entire year conditionally stayed. Id. at ¶ 22.

{¶ 55} The board found that Daly, like Heben, acted selfishly. But unlike

the attorney in Heben, Daly’s misconduct was vindictive. Heben had a colorable

argument that he needed to include in his affidavit confidential client information

to resolve a fee dispute. See id. at ¶ 14-15; see also Squire, Sanders & Dempsey,

L.L.P. v. Givaudan Flavors Corp., 2010-Ohio-4469, paragraph one of the syllabus

(an attorney may testify about confidential attorney-client communications to

establish a claim for legal fees). Daly, however, had no reason to disclose S.H.’s

confidential client information to the police. He certainly had no reason to talk to

the police twice, and Daly has not shown any connection between his accusation

that S.H. stole a necklace from him and him telling the police that S.H. used drugs,

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worked as a prostitute, and drove without a license. Rather, revenge motivated him.

Finally, Heben presented evidence of his good character, but Daly did not. Heben

at ¶ 16.

{¶ 56} In Holder, this court suspended Holder from the practice of law for

24 months, with 18 months conditionally stayed. 2004-Ohio-2835 at ¶ 45. To

warrant that sanction, Holder represented clients with diverging interests, disclosed

to third parties a former client’s criminal record, and sent a complaint concerning

that same former client’s unpaid legal fees to uninvolved third parties. At his

disciplinary hearing, Holder argued that his client’s criminal record and the fee

dispute were public records, and therefore, he did not violate the attorney-client

privilege.

{¶ 57} This court rejected that argument, holding that “an attorney is not

free to disclose embarrassing or harmful features of a client’s life just because they

are documented in public records or the attorney learned of them in some other

way.” Id. at ¶ 39.

{¶ 58} To reach its recommended sanction, the board analyzed multiple

aggravating and mitigating factors. As aggravating factors, the board found that

Holder’s misconduct harmed the client, that he lacked remorse, and that he acted

selfishly. Id. at ¶ 33. In mitigation, the board found that Holder had no prior

disciplinary record, he directed his misconduct toward only one client, and he

cooperated in the disciplinary proceedings. Id. at ¶ 32.

{¶ 59} The egregiousness of Daly’s misconduct exceeds Holder’s.

Although the attorneys in each case acted with a selfish motive and lacked remorse

for their conduct, Holder released publicly available information while Daly

released confidential client information. And unlike Holder, Daly did not initially

cooperate in the disciplinary proceedings.

{¶ 60} Lastly, in Holmes and Kerr, the relator charged two attorneys who

worked at different law firms with improperly disclosing to each other confidential

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SUPREME COURT OF OHIO

client information over email. Kerr sent Holmes communications from her clients

in which they requested certain legal documents, and Holmes helped Kerr by

providing her with copies of his own clients’ documents that he prepared in similar

cases. The board found that both attorneys violated Prof.Cond.R. 1.6(a) and 8.4(h)

(prohibiting a lawyer from engaging in conduct adversely reflecting on the lawyer’s

fitness to practice law) multiple times but also that they had no prior discipline,

cooperated with the disciplinary proceedings, and presented evidence of good

character. Holmes and Kerr, 2018-Ohio-4308, at ¶ 6. In the end, we suspended

both attorneys for six months, with the suspensions conditionally stayed. Id. at

¶ 11.

{¶ 61} Unlike Holmes and Kerr, Daly violated only one rule, and he

violated that rule with respect to only one client, although he disclosed that client’s

confidences to the police twice. But Daly did not reveal S.H.’s confidences to help

her—he told his client’s secrets to the police in an effort to get her into trouble—

he did not initially cooperate in the disciplinary proceedings, and he did not present

positive-character evidence. Of course, the egregiousness of Daly’s misconduct

surpasses the misconduct that was at issue in Holmes and Kerr because Kerr at least

acted to benefit her clients. Here, Daly acted to his client’s detriment.

{¶ 62} At bottom, a comparison of this case’s facts with those in Heben,

Holder, and Holmes and Kerr demonstrates that the majority’s reliance on those

cases is misplaced. Consequently, Daly’s sanction goes against this court’s practice

of indefinitely suspending attorneys who breach the attorney-client privilege.

Conclusion

{¶ 63} The record does not justify departing from our precedent of

indefinitely suspending attorneys for disclosing confidential information to the

client’s detriment. I am unaware of any other case this court has decided in which

an attorney, motivated by revenge, revealed his client’s secrets to the police.

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{¶ 64} Therefore, I concur in part and dissent in part and would indefinitely

suspend Daly from the practice of law.

__________________

Roderer Law Office, L.L.C., and Paul B. Roderer Jr., for relator.

William T. Daly, pro se.

__________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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