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

Warren Cty. Bar Assn. v. Brenner, Slip Opinion No. 2020-Ohio-142.]

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. 2020-OHIO-142 

WARREN COUNTY BAR ASSOCIATION v. BRENNER.

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

may be cited as Warren Cty. Bar Assn. v. Brenner, 

Slip Opinion No. 2020-Ohio-142.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct, 

including failing to act with reasonable diligence in representing a client 

and failing to keep a client reasonably informed about the status of a 

matter—Conditionally stayed six-month suspension.

(No. 2018-0822—Submitted May 8, 2019—Decided January 22, 2020.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the 

Supreme Court, No. 2018-018. 

__________________ 

Per Curiam. 

{¶ 1} Respondent, Andrew Jay Brenner, of Mason, Ohio, Attorney 

Registration No. 0085066, was admitted to the practice of law in Ohio in 2009. 

{¶ 2} In a complaint certified to the Board of Professional Conduct on April 

17, 2018, relator, Warren County Bar Association, charged Brenner with 

professional misconduct arising from his neglect of a legal matter, his failure to 
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2 

reasonably communicate with his clients regarding that matter, and his failure to 

cooperate with relator’s investigation. Brenner did not participate in relator’s 

investigation and failed to answer the complaint. Consequently, his default was 

certified to this court. 

{¶ 3} Although Brenner timely responded to our June 15, 2018 show-cause 

order, we imposed an interim default suspension on August 7, 2018. Warren Cty. 

Bar Assn. v. Brenner, 155 Ohio St.3d 1280, 2018-Ohio-3116, 121 N.E.3d 393. We 

also granted Brenner’s motion for leave to answer the complaint and remanded the 

case to the board for further proceedings. 153 Ohio St.3d 1456, 2018-Ohio-3118, 

103 N.E.3d 834. On remand, the board granted relator’s motion to file an amended 

complaint and a panel of the board later considered the cause on the parties’ 

consent-to-discipline agreement, see Gov.Bar R. V(16). 

{¶ 4} The parties stipulated that in June 2016, Larry Buchanan, the principal 

for Security Self Storage, Inc. (“Security”), retained Brenner to represent the 

company in a small-claims case that Buchanan had filed in municipal court against 

one of Security’s former tenants. 

{¶ 5} Although Brenner participated in the litigation and discussed the 

defendant’s discovery requests with Buchanan, he did not complete the discovery 

responses or produce them to the defendant. Brenner also failed to inform 

Buchanan that the defendant had filed motions to compel discovery and to deem its 

requests for admissions admitted. In the absence of responses to those motions 

from Brenner, the court granted the motions and ordered Security to provide its 

discovery responses by a set date. 

{¶ 6} Because Brenner did not comply with the court’s order, the defendant 

filed a motion to find Security in contempt, and the court set a date for the contempt 

hearing. Brenner did not appear at the contempt hearing and the court found 

Security in contempt of its discovery order, dismissed Security’s complaint with 

prejudice, and entered a judgment of $10,092.50 plus $1,455 in attorney fees on a 
January Term, 2020 

3 

counterclaim the defendant had filed. Brenner did not notify Buchanan of that 

judgment. Buchanan received notice of the judgment through other sources and 

paid it in full; he then filed a disciplinary grievance and also filed a malpractice 

action against Brenner in common pleas court. The court entered a default 

judgment against Brenner in the malpractice action on January 5, 2018. 

{¶ 7} The parties stipulated and the board found that Brenner’s conduct 

violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in 

representing a client), 1.4(a)(3) (requiring a lawyer to keep a client reasonably 

informed about the status of a matter), and 8.1(b) (prohibiting a lawyer from 

knowingly failing to respond to a demand for information from a disciplinary 

authority). Relator agreed to dismiss six additional alleged rule violations. 

{¶ 8} The parties stipulated that the only aggravating factor present is 

Brenner’s failure to cooperate in the disciplinary process. See Gov.Bar R. 

V(13)(B)(5). As mitigating factors, the parties agreed that Brenner does not have 

a prior disciplinary record, did not act with a dishonest or selfish motive, did not 

personally gain from his misconduct, demonstrated a cooperative attitude in this 

proceeding during his interim suspension, and presented evidence of his good 

character or reputation. See Gov.Bar R. V(13)(C)(1), (2), (4), and (5). Although 

the parties acknowledged that Brenner suffers from anxiety and depression and 

entered into a two-year contract with the Ohio Lawyers Assistance Program 

(“OLAP”) on November 5, 2018, they have not suggested that his disorders qualify 

as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7). 

{¶ 9} The board recommends that we accept the parties’ consent-todiscipline agreement and suspend Brenner from the practice of law for six months 

with the entire suspension stayed on the conditions recommended by the parties. 

{¶ 10} In support of that sanction, the parties and the board cite Dayton Bar 

Assn. v. Wilcoxson, 153 Ohio St.3d 279, 2018-Ohio-2699, 104 N.E.3d 772. We 

suspended Wilcoxson’s license on an interim basis as a result of his initial failure 
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to answer the disciplinary charges against him but later granted Wilcoxson’s motion 

to terminate the interim suspension and remanded the case to the board. We 

ultimately found that Wilcoxson—like Brenner—neglected a client’s legal matter, 

failed to keep the client informed about the status of that matter, and then failed to 

respond to the ensuing disciplinary investigation. But Wilcoxson notably also 

failed to take reasonably practicable steps to protect the client’s interest upon his 

withdrawal from the representation. Id. at ¶ 7. Just one aggravating factor was 

present—Wilcoxson’s failure to properly notify his client that he did not maintain 

professional-liability insurance. Mitigating factors included the absence of prior 

discipline, the absence of a dishonest or selfish motive, Wilcoxson’s payment of 

restitution, and evidence of his good character and reputation. We adopted the 

parties’ consent-to-discipline agreement and suspended Wilcoxson for six months, 

all stayed on the condition that he engage in no further misconduct. 

{¶ 11} Based on the foregoing, we agree that Brenner’s conduct violated 

Prof.Cond.R. 1.3, 1.4(a)(3), and 8.1(b) and that a six-month suspension, all stayed 

on the recommended conditions, is the appropriate sanction for that misconduct. 

We therefore accept the parties’ consent-to-discipline agreement. 

{¶ 12} Accordingly, Andrew Jay Brenner is suspended from the practice of 

law in Ohio for six months, with the entire suspension stayed on the conditions that 

he (1) comply with his November 5, 2018 OLAP contract, (2) follow any treatment 

and counseling recommendations arising from that contract, (3) make restitution to 

Security Self Storage, Inc., in the amount of $14,114.76 plus judgment interest 

accruing from January 5, 2018, (4) serve a one-year term of monitored probation in 

accordance with Gov.Bar R. V(21), and (5) engage in no further misconduct. If 

Brenner fails to comply with any condition of the stay, the stay will be lifted and 

he will serve the full six-month suspension. In addition, the interim default 

suspension imposed on August 7, 2018, is terminated. Before Brenner may resume 

the practice of law, however, he must apply for reinstatement and demonstrate that 
January Term, 2020 

5 

he has fully complied with this court’s August 7, 2018 interim-default-suspension 

order. Costs are taxed to Brenner. 

Judgment accordingly. 

O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ., 

concur. 

FISCHER, J., concurs, with an opinion joined by DONNELLY, J. 

KENNEDY, J., dissents, with an opinion joined by DEWINE, J. 

__________________ 

FISCHER, J., concurring.

{¶ 13} I join the majority opinion in this case accepting the parties’ consentto-discipline agreement. I write separately, however, to respectfully disagree with 

the viewpoint proposed in the dissenting opinion, which would reject the consentto-discipline agreement based on the flawed conclusion that the Supreme Court 

Rules for the Government of the Bar require this court to impose specific conditions 

on any term of monitored probation in an attorney-discipline case. 

{¶ 14} As I have stated in Disciplinary Counsel v. Halligan, ___ Ohio St.3d 

___, 2019-Ohio-3748, ___ N.E.3d ___, ¶ 31-35 (Fischer, J., concurring), 

Disciplinary Counsel v. Harmon, ___ Ohio St.3d ___, 2019-Ohio-4171, ___ 

N.E.3d ___, ¶ 60 (Fischer, J., dissenting), and Dayton Bar Assn. v. Sullivan, ___ 

Ohio St.3d ___, 2020-Ohio-124, ____ N.E.3d ____, ¶ 40 (Fischer, J. concurring), 

neither the Supreme Court Rules for the Government of the Bar nor decades of this 

court’s case law addressing attorney discipline supports such a requirement. 

{¶ 15} While I agree that a more specific term of monitored probation can 

be useful and is in some cases necessary, see, e.g., Disciplinary Counsel v. Bennett, 

146 Ohio St.3d 237, 2016-Ohio-3045, 54 N.E.3d 1232, ¶ 19, I disagree with the 

dissenting opinion’s view that such specific conditions must be attached every time 

this court decides to order a sanction of monitored probation. Thus, I disagree with 

the dissenting opinion’s conclusion that specific conditions must be attached to the 
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6 

monitored probation in Andrew Jay Brenner’s consent-to-discipline agreement. I 

join the majority opinion and agree that Brenner’s consent-to-discipline agreement 

is appropriate under the Supreme Court Rules for the Government of the Bar and 

this court’s precedent. 

 DONNELLY, J., concurs in the foregoing opinion. 

__________________ 

KENNEDY, J., dissenting.

{¶ 16} Because the Rules for the Government of the Bar require this court 

to impose specific conditions whenever we impose a period of probation and 

because neither the consent-to-discipline agreement in this case nor the report of 

the Board of Professional Conduct includes any conditions for the probation 

imposed on respondent, Andrew Jay Brenner, I would reject the consent-todiscipline agreement and remand this matter to the board for further proceedings. 

For these reasons, I dissent. 

{¶ 17} Gov.Bar R. V(12)(A)(4) provides that when this court imposes a 

term suspension on an attorney, it may also impose “[p]robation for a period of time 

upon conditions as the Supreme Court determines.” (Emphasis added.) But rather 

than imposing those specific conditions itself, the majority relies on Gov.Bar R. 

V(21) to provide the conditions of probation by default. However, the probation 

procedures established in Gov.Bar R. V(21) were never intended to provide the 

tailored conditions of probation needed to protect the public from future misconduct 

while promoting the attorney’s rehabilitation. 

{¶ 18} Gov.Bar R. V(21)(A)(1), (3), (4), and (5) state that when this court 

has imposed probation, the relator is required to “[s]upervise the term and 

conditions of probation,” appoint and receive reports from one or more monitoring 

attorneys, and investigate reports of a violation of the conditions of probation. 

Gov.Bar R. V(21)(B)(1) through (3) direct a monitoring attorney to “[m]onitor 

compliance by the respondent with the conditions of probation imposed by the 
January Term, 2020 

7 

Supreme Court” (emphasis added), provide reports to the relator “regarding the 

status of the respondent and compliance with the conditions of probation,” and 

“[i]mmediately report to the relator any violations by the respondent of the 

conditions of probation.” And pursuant to Gov.Bar R. V(21)(D), probation may 

not be terminated unless all costs of the proceedings as ordered by this court have 

been paid, “the respondent has complied with the conditions of probation, and no 

formal disciplinary proceedings are pending against the respondent.” 

{¶ 19} Our conditions of probation are important because when a relator 

has probable cause to believe that a respondent has committed “a significant or 

continuing violation of the conditions of probation,” Gov.Bar R. V(21)(E) directs 

the relator to “file a petition for the revocation of probation, reinstatement of any 

stayed suspension, and citation for contempt” with the director of the board. If a 

panel of the board, after a hearing, finds “clear and convincing evidence that the 

respondent is guilty of a significant or continuing violation of the conditions of 

probation,” it reports the violation to this court. Gov.Bar R. V(21)(H). 

{¶ 20} One purpose of imposing probation is to “provide the Court with a 

more immediate penalty if probation is violated.” 1989 Staff Notes to Gov.Bar R. 

V. Therefore, when a panel files a certified report regarding a probation violation, 

we may issue “an order reinstating any period of suspension previously stayed by 

the Supreme Court, pending the entry of a final order by the Supreme Court,” 

Gov.Bar R. V(21)(I). But reinstating a suspension that was previously stayed is not 

the sole penalty available to the court for a probation violation; after this court 

issues a show-cause order (and holds a hearing if any objections are filed), it “shall 

enter an order as it finds proper in accordance with [Gov.Bar R. V(17)],” Gov.Bar 

R. V(21)(K). 

{¶ 21} Therefore, because it is incumbent on this court to impose specific 

conditions of probation, Gov.Bar R. V(21) provides little guidance for the day-today supervision, monitoring, and rehabilitation of the respondent. Gov.Bar R. 
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8 

V(21)(C)(1) through (3) require the respondent to have in-person meetings with the 

monitoring attorney at least once a month during the first year of probation; to 

provide his monitoring attorney with a written release or waiver for use in verifying 

the respondent’s compliance regarding medical, psychological, or other treatment; 

and to cooperate with the monitoring attorney’s efforts to monitor the respondent’s 

compliance with the conditions of probation. But these three generic requirements 

cannot be expected to establish clear goals and expectations of monitoring for all 

forms of misconduct. Instead, conditions tailored to the facts and circumstances 

of a respondent’s misconduct must be imposed to protect the public and rehabilitate 

the respondent. 

{¶ 22} This court’s imposition of specific conditions of probation is 

therefore “essential to the scheme” of probation established by Gov.Bar R. V(21). 

Disciplinary Counsel v. Halligan, ___ Ohio St.3d ___, 2019-Ohio-3748, ___ 

N.E.3d ___, ¶ 43 (Kennedy, J., concurring in part and dissenting in part). The Rules 

for the Government of the Bar give this court—and only this court—the authority 

to impose those conditions, id. at ¶ 42, and the “failure to attach conditions to 

probation is more than a missed opportunity to set the criteria and goals for 

professional redemption, it is an abdication of our duty under the Rules for the 

Government of the Bar,” id. at ¶ 41. When this court does not provide guidance to 

the relator, the respondent, the monitoring attorney, and the board as to the 

conditions of probation—conditions specifically designed by this court to protect 

the public and rehabilitate the respondent—it undermines the effectiveness of the 

probation scheme established by Gov.Bar R. V(21). 

{¶ 23} For these reasons, “[a] term of probation should have sufficient 

conditions tied to a respondent’s violations to protect the public from further 

violations of the Rules of Professional Conduct” while also providing supervisory 

activities “tailored to benefit a respondent.” Halligan at ¶ 45 (Kennedy, J., 

concurring in part and dissenting in part). 
January Term, 2020 

9 

{¶ 24} In a consent-to-discipline case, the parties have the opportunity to 

design the most appropriate conditions based on the facts and circumstances of the 

case. The relator, which must supervise the term of probation, and the respondent, 

who must serve it, share an interest in ensuring that the conditions of probation 

promote the disciplined attorney’s rehabilitation while protecting the public and 

making good use of the time and energy of the relator, the respondent, and the 

monitoring attorney. When the relator and the respondent enter into a consent-todiscipline agreement stipulating that the sanction for the respondent’s misconduct 

should include monitored probation, the parties need to include conditions of 

probation. Conditions are essential to monitored probation and must be set by this 

court when probation is imposed, but neither the board nor this court has authority 

to modify a consent-to-discipline agreement to add conditions that the parties 

omitted, see Gov.Bar R. V(16)(B) and (C); Gov.Bar R. V(17)(D); see also Gov.Bar 

R. V(12)(I) (“If applicable, the panel shall include in its report any conditions of 

probation”). Therefore, consent-to-discipline agreements that include monitored 

probation but do not specify its conditions should be rejected by the board or, failing 

that, should be rejected by this court. 

{¶ 25} In this case, neither the consent-to-discipline agreement nor the 

board’s report includes any conditions of probation. I am therefore constrained to 

reject the consent-to-discipline agreement, and I would remand this matter to the 

board for further proceedings that would permit the imposition of specific 

conditions for the one-year term of monitored probation. Appropriate conditions 

related to overseeing respondent’s office-management practices include the 

following: (1) respondent shall meet in person with his monitoring attorney on a 

monthly basis as required by Gov.Bar R. V(21)(C)(1), (2) respondent shall provide 

his monitoring attorney with a written release or waiver for use in verifying 

compliance regarding medical, psychological, or other treatment as required by 

Gov.Bar R. V(21)(C)(2), (3) respondent shall cooperate and work with the monitor, 
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10 

who shall act as a mentor and provide guidance to respondent regarding the proper 

operation and management of a law practice, (4) respondent, with the relator or 

monitoring attorney, shall design a comprehensive plan to ensure that he is 

reasonably diligent in the representation of his clients; in the event respondent 

cannot act with reasonable diligence in representing his clients, the relator or 

monitoring attorney may limit the number of active cases respondent may maintain, 

(5) respondent shall maintain an active-case list or a docketing system and shall 

give the monitoring attorney an inventory of active cases each month, (6) 

respondent shall give the monitoring attorney access to nonconfidential client 

materials and files, ledgers, and account statements as needed to allow the 

monitoring attorney to review respondent’s active cases to ensure his compliance 

with the Rules of Professional Conduct, see Allen Cty. Bar Assn. v. Williams, 95 

Ohio St.3d 160, 2002-Ohio-2006, 766 N.E.2d 973, ¶ 16, and (7) prior to the 

termination of probation, as part of his continuing-legal-education requirements 

under Gov.Bar R. X, respondent shall complete at least six hours of continuinglegal-education courses on law-office management and operations. 

{¶ 26} In some cases, making the stay of a suspension subject to conditions 

is a sufficient method to compel compliance with our disciplinary order and the 

additional sanction of monitored probation is not necessary. (The Rules for the 

Government of the Bar do not provide any specific procedure for the relator or a 

monitoring attorney to supervise the conditions of a stayed suspension.) However, 

since the majority accepts the consent-to-discipline agreement, and given the way 

the agreement in this particular case is structured, we should also include the 

following requirements agreed to by the parties as conditions of probation rather 

than conditions of the stay: (1) respondent shall comply with his November 5, 2018 

contract with the Ohio Lawyers Assistance Program, (2) respondent shall follow 

any treatment and counseling recommendations arising from that contract, (3) 

respondent shall make restitution to Security Self Storage, Inc., in the amount of 
January Term, 2020 

11 

$14,114.76 plus judgment interest accruing from January 5, 2018, before 

respondent may apply to terminate probation, and (4) respondent shall engage in 

no further misconduct. 

{¶ 27} “An effective attorney-probation system—one that follows the Rules 

for the Government of the Bar—requires the considered input of this court in 

establishing the conditions of probation.” Halligan, ___ Ohio St.3d ___, 2019-

Ohio-3748, ___ N.E.3d ___, at ¶ 47 (Kennedy, J., concurring in part and dissenting 

in part). Because no specific conditions are imposed for respondent’s term of 

probation, I dissent from the court’s decision today. 

 DEWINE, J., concurs in the foregoing opinion. 

__________________ 

Kenneth E. Peller, Bar Counsel, and Dwight A. Packard II, for relator. 

Reminger Co., L.P.A., and Ian D. Mitchell, for respondent. 

________________________