[Until this opinion appears in the Ohio Official Reports advanc e 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 f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are requested to p romptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front St reet, Columbus, Ohio 43215, of any typographical o r other formal errors in the opinion, in order that corrections may be made be fore the opinion is published.

S LIP O PINION N O
. 2020-O HIO -142

W ARREN C OUNTY B AR A SSOCIATION v . B RENNER . [Until this opinion appears in t he Ohio Official Reports advanc e 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.)
O N C ERTIFIED R EPORT 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 admitte d to the practice of law i n Ohio in 2009. {¶ 2} In a complaint certified to the Board of Professional Conduct o n April 17, 2018, relator, Warren County Bar Association, charged Brenn er with professional misc onduct arising from his neglect of a legal mat ter, his failure toS UPREME C OURT OF O HIO

2 reasonably communicate with his clients regarding that matter, and his failure to cooperate with relator’s inves tigation. Brenner did not partic ipate 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-cau se order, we imposed an interim default suspension on August 7, 20 18. 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 boa rd later considered the cause o n the parties’ consent-to-discipline agreement, see Gov.Bar R. V(16). {¶ 4} The parties stipulated that in June 2016, Larry Buchanan, the p rincipal for Security Self Storage, Inc. (“Security”), retained Brenner to represent the company in a small-claims case that Buchanan had filed in munic ipal court against one of Security’s former tenants. {¶ 5} Although Brenner participated i n the litigation and discussed t he defendant’s discovery requests w ith Buchanan, he did not comple te the discovery responses or produce them to the defendant. Brenner also faile d to inform Buchanan that the defendant had filed motions to compel discove ry 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 Securit y to provide its discovery responses by a set date. {¶ 6} Because Brenner did not comply with the court’s order, the defe ndant filed a motion to find Security i n contempt, and the court set a date for the contempt hearing. Brenner did not appear at the contempt hearing and th e court found Security in contempt of its disc overy order, dismissed Security ’s complaint with prejudice, and entered a judgment of $10,092.50 plus $1,455 in attorney fees on aJanuary Term, 2020

3 counterclaim the defendant had f iled. Brenner did not notify B uchanan of that judgment. Buchanan received no tice of the judgment through oth er sources and paid it in full; he then filed a disciplinary grievance and als o filed a malpractice action against Brenner in comm on pleas court. The court entere d a default judgment against Brenner in t he malpractice action on January 5 , 2018. {¶ 7} The parties stipulated and the board found that Brenner’s condu ct violated Prof.Cond.R. 1.3 (requiri ng a lawyer to act with reaso nable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to keep a client reasonably
informed about the status of a m atter), and 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a demand for information from a disciplinary authority). Relator agreed to di smiss six additional alleged r ule 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 Br enner does not have a prior disciplinary record, did not act with a dishonest or se lfish motive, did not personally gain from his misc onduct, demonstrated a cooperative attitude in this proceeding during his interim su spension, and presented evidenc e 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 Assistan ce 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 l aw for six months with the entire suspension s tayed 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 o f his initial failureS UPREME C OURT OF O HIO

4 to answer the disciplinary charges against him but later grante d Wilcoxson’s motion to terminate the interim suspension and remanded the case to th e board. We ultimately found that Wilcoxson—lik e Brenner—neglected a client ’s legal matter, failed to keep the client informe d about the statu s of that mat ter, and then failed to respond to the ensuing disciplinary investigation. But Wilcoxs on notably also failed to take reasonably practicable steps to protect the clie nt’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 dis honest or selfish motive, Wilco xson’s payment of restitution, and evidence of his good character and reputation. We adopted the parties’ consent-to-discipline agreement and suspended Wilcoxso n for six months, all stayed on the condition that he engage in no further miscon duct. {¶ 11} Based on the foregoing, we agree that Brenner’s conduct violate d Prof.Cond.R. 1.3, 1.4(a)(3), and 8.1(b) and that a six-month su spension, all stayed on the recommended conditions, is the appropriate sanction for that misconduct. We therefore accept the parties’ consent-to-discipline agreemen t. {¶ 12} Accordingly, Andrew Jay Brenner is suspended from the practice of law in Ohio for six months, with the entire suspension stayed o n the conditions that he (1) comply with his November 5, 2018 OLAP contract, (2) foll ow 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 j udgment interest accruing from January 5, 2018, (4) serve a one-year term of mon itored 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 sta y 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 Br enner may resume the practice of law, however, he must apply for reinstatement a nd demonstrate thatJanuary Term, 2020

5 he has fully complied with thi s court’s August 7, 2018 interim- default-suspension
order. Costs are taxed to Brenner. Judgment accordingly.
O’C ONNOR , C.J., and F RENCH , F ISCHER , D ONNELLY , and S TEWART , JJ.,

concur. F ISCHER , J., concurs, with an opinion joined by D ONNELLY , J.

K ENNEDY , J., dissents, with an opinion joined by D E W INE , J.

__________________ F ISCHER , J., concurring. {¶ 13} I join the majority opinion in this case accepting the parties’ consentto-discipline agreement. I write separately, however, to respe ctfully disagree with the viewpoint proposed in the dissenting opinion, which would r eject the consentto-discipline agreement based on the flawed conclusion that the Supreme Court Rules for the Government of the Bar require this court to impos e specific conditions on any term of monitored probati on in an attorney-discipline ca se. {¶ 14} As I have stated in Disciplinary Counsel v. Halligan , ___ Ohio St.3d ___, 2019-Ohio-3748, ___ N.E.3d ___, ¶ 31-35 (Fischer, J., conc urring), 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 n or decades of this court’s case law addressing a ttorney 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 dis agree 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 conclusi on that specific conditions mu st be attached to theS UPREME C OURT OF O HIO

6 monitored probation in Andrew Jay Brenner’s consent-to-discipli ne agreement. I join the majority opinion and agree that Brenner’s consent-to-d iscipline agreement is appropriate under the Supreme Court Rules for the Governmentof the Bar and this court’s precedent.

D ONNELLY , J., concurs in the foregoing opinion.

__________________ K

ENNEDY , J., dissenting. {¶ 16} Because the Rules for the Government of the Bar require this co urt to impose specific conditions whe never we impose a period of pr obation and because neither the consent-to-discipline agreement in this cas e nor the report of the Board of Professional Conduct includes any conditions for t he probation imposed on respondent, Andrew Jay Brenner, I would reject the c onsent-todiscipline agreement and remand this matter to the board for fu rther 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 re lies on Gov.Bar R. V(21) to provide the conditions of probation by default. Howev er, 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 f rom 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 condit ions 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 theJanuary Term, 2020

7 Supreme Court ” (emphasis added), provide repor ts to the relator “regarding t he status of the respondent and compliance with the conditions of probation,” and “[i]mmediately report to the relator any violations by the resp ondent of the conditions of probation.” And pur suant to Gov.Bar R. V(21)(D), probation may not be terminated unless all costs of the proceedings as ordere d by this court have been paid, “the respondent has complied with the conditions of probation, and no formal disciplinary proceedings are pending against the respond ent.” {¶ 19} Our conditions of probation are important because when a relato r has probable cause to believe t hat a respondent has committed “ a significant or continuing violation of the cond itions 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 fo r contempt” with the director of the board. If a panel of the board, after a he aring, finds “clear and convincin g evidence that the respondent is guilty of a significant or continuing violation o f 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 proba tion is violated.” 1989 Staff N otes to Gov.Bar R. V. Therefore, when a panel file s a certified report regarding a probation violation, we may issue “an order reinstating any period of suspension pre viously stayed by the Supreme Court, pending the e ntry of a final order by the Su preme Court,” Gov.Bar R. V(21)(I). But reinstating a suspension that was pre viously stayed is not the sole penalty available to the court for a probation violati on; after this court issues a show-cause order (and holds a hearing if any objection s 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 spec ific conditions of probation, Gov.Bar R. V(21) provides little guida nce for the day-today supervision, monitoring, and rehabilitation of the responde nt. Gov.Bar R.S UPREME C OURT OF O HIO

8 V(21)(C)(1) through (3) require the respondent to have in-perso n 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 waive r for use in verifying the respondent’s compliance rega rding medical, psychological, o r other treatment; and to cooperate with the monitoring attorney’s efforts to moni tor the respondent’s compliance with the conditions o f probation. But these three g eneric requirements cannot be expected to establish clear goals and expectations of monitoring for all forms of misconduct. Instead, c onditions tailored to the fact s and circumstances of a respondent’s misconduct must be imposed to protect the pub lic 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 dissentin g in part). The Rules for the Government of the Bar give this court—and only this cou rt—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 redempti on, 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 b oard as to the conditions of probation—conditions specifically designed by thi s court to protect the public and rehabilitate the r espondent—it undermines the ef fectiveness of the probation scheme established by Gov.Bar R. V(21). {¶ 23} For these reasons, “[a] term of probation should have sufficien t conditions tied to a respondent’s violations to protect the pub lic from further
violations of the Rules of Pro fessional Conduct” while also pro viding supervisory
activities “tailored to b enefit 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 opportuni ty to design the most a ppropriate conditions ba sed on the facts and c ircumstances of the case. The relator, which must s upervise the term of probation, and the respondent, who must serve it, share an inte rest in ensuring that the condi tions of probation promote the disciplined attorney’s rehabilitation while protect ing the public and making good use of the time and energy of the relator, the resp ondent, and the monitoring attorney. When the relator and the respondent enterinto a consent-todiscipline agreement stipulating that the sanction for the resp ondent’s misconduct should include monitored probati on, the parties need to include conditions of probation. Conditions are essential to mon itored probation and must be set by this court when probation is impose d, but neither the board nor this court has authority to modify a consent-to-discipline agreement to add conditions t hat 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 rep ort 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 t he board’s report includes any conditions of probation. I am ther efore 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. Appro priate conditions related to overseeing respondent’s office-management practices include the following: (1) respondent shall meet in person with his monitor ing attorney on a monthly basis as required by Gov.Bar R. V(21)(C)(1), (2) respon dent shall provide his monitoring attorney with a written release or waiver for us e 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,S UPREME C OURT OF O HIO

10 who shall act as a mentor and provide guidance to respondent re garding the proper operation and management of a la w practice, (4) respondent, wit h the relator or monitoring attorney, shall design a comprehensive plan to ensur e that he is reasonably diligent in the representation of his clients; in th e event respondent cannot act with reasonable diligence in representing his client s, the relator or monitoring attorney may limit the number of active cases respon dent may maintain, (5) respondent shall maintain an active-case list or a docketin g system and shall give the monitoring attorney an inventory of active cases each month, (6) respondent shall give the monito ring attorney access to nonconf idential client materials and files, ledgers, and account statements as needed to allow the monitoring attorney to review respondent’s active cases to ensu re his compliance
with the Rules of Pr ofessional Conduct, s ee Allen Cty. Bar Assn. v. Williams , 95 Ohio St.3d 160, 2002-Ohio-2006, 766 N.E.2d 973, ¶ 16, and (7) p rior to the termination of probation, as par t of his continuing-legal-educa tion requirements under Gov.Bar R. X, respondent s hall complete at least six hour s of continuinglegal-educati on courses on law-office management and operations

. {¶ 26} In some cases, making the stay of a suspension subject to condi tions is a sufficient method to compel compliance with our disciplina ry order and the
additional sanction of monitored probation is not necessary. ( The Rules for the Government of the Bar do not provi de any specific procedure for the relator or a monitoring attorney to supervise the conditions of a stayed sus pension.) 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 o f probation rather than conditions of the stay: (1) respondent shall comply with h is November 5, 2018 contract with the Ohio Lawyers Assistance Program, (2) responde nt shall follow any treatment and counseling recommendations arising from that contract, (3) respondent shall make restitution to Security Self Storage, Inc ., in the amount ofJanuary 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 Ru les
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 respo ndent’s term of probation, I dissent from th e court’s decision today.

D E W INE , J., concurs in the foregoing opinion.

__________________ Kenneth E. Peller, Bar Counsel, a nd Dwight A. Packard II, for r elator. Reminger Co., L.P.A., and Ia n D. Mitchell, for respondent.

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