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

Disciplinary Counsel v. Gernert, Slip Opinion No. 2024-Ohio-1946.]

 

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. 2024-OHIO-1946

DISCIPLINARY COUNSEL v. GERNERT.

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

may be cited as Disciplinary Counsel v. Gernert, Slip Opinion No. 

2024-Ohio-1946.]

Attorneys—Misconduct—Violations of Rules of Professional Conduct—

Conditionally stayed two-year suspension.

(No. 2024-0173—Submitted March 12, 2024—Decided May 23, 2024.)

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

Court, No. 2023-013.

______________

Per Curiam.

{¶ 1} Respondent, Brian Nicholas Gernert, of Bucyrus, Ohio, Attorney 

Registration No. 0089507, was admitted to the practice of law in Ohio in 2012. On 

October 8, 2021, Gernert was appointed as the interim law director for the city of 

Bucyrus. After winning the primary election in May 2023, he ran unopposed and 

was elected as the Bucyrus law director in November 2023.
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2

{¶ 2} In a June 2023 complaint, relator, disciplinary counsel, charged 

Gernert with two ethical violations arising from his use of alcohol, which had 

resulted in his conviction on two separate counts of operating a vehicle while 

intoxicated (“OVI”) as well as two parole violations. Gernert’s alcohol use also 

had resulted in the dismissal of a driving-under-suspension case for which Gernert 

served as the prosecutor. In his answer to relator’s complaint, Gernert admitted 

every allegation.

{¶ 3} The parties submitted stipulations of fact, misconduct, and 

aggravating and mitigating factors as well as 21 stipulated exhibits, and the matter 

proceeded to a hearing before a three-member panel of the Board of Professional 

Conduct. Based on the stipulations and Gernert’s testimony, the panel found that 

Gernert committed the charged misconduct. The panel recommended that Gernert

be suspended from the practice of law for two years, fully stayed on conditions

intended to foster his recovery and sobriety. The board adopted the panel’s report 

and recommendation, and no objections have been filed. After a thorough review 

of the record and our precedent, we adopt the board’s findings of misconduct and 

the recommended sanction.

MISCONDUCT

First OVI Offense—May 2022

{¶ 4} On May 4, 2022, Gernert was driving his orange Honda SUV in 

Bucyrus. Around 10:10 p.m., another driver called 9-1-1 to report a possible 

intoxicated driver in an orange Honda SUV traveling westbound on West Mansfield 

Street in Bucyrus. The caller observed Gernert’s vehicle veering off Holmes Center 

Road into a ditch, striking a utility pole, and then driving away from the scene. The 

caller followed Gernert’s vehicle until a Crawford County sheriff’s deputy located

it and initiated a traffic stop near Bucyrus High School.

{¶ 5} As the deputy approached Gernert’s vehicle, he noticed that it had 

sustained heavy damage to the passenger side. The deputy spoke with Gernert, who 
January Term, 2024

3

was the only occupant in the vehicle, and smelled the odor of alcohol emanating 

from inside the vehicle. After having Gernert exit the vehicle, the deputy asked 

how much Gernert had had to drink. Gernert replied, “A drink or two.” The deputy

attempted to have Gernert perform field sobriety tests; however, Gernert lost his 

balance during the horizontal-gaze nystagmus test. Gernert was arrested on 

suspicion of OVI.

{¶ 6} After the deputy secured Gernert in the back of a cruiser, he and a 

second deputy observed an open beer can in the center console and a bottle of 

Crown Royal Black on the driver’s-side floorboard. They also noticed a large 

chunk of wood, presumably from the utility pole, protruding from the passenger’sside door and fender. The passenger’s-side mirror was missing from the vehicle,

and the adjacent window was shattered. A third deputy found a black Crown Royal 

bag and the broken passenger’s-side mirror from Gernert’s vehicle at the scene of 

the crash on Holmes Center Road.

{¶ 7} The deputy who initiated the stop transported Gernert to the Crawford 

County Jail, where he offered Gernert the opportunity to submit to a breathalyzer 

test. Gernert refused. Gernert was charged with a first-degree misdemeanor OVI

under R.C. 4511.19(A)(1)(a) and a first-degree misdemeanor refusal to submit to 

chemical testing under R.C. 4511.19(A)(2).

{¶ 8} Due to Gernert’s position as the interim city law director, a special 

prosecutor and visiting judge were appointed to his case. On August 2, 2022, 

Gernert pleaded guilty to one count of OVI in violation of R.C. 4511.19(A)(1)(a), 

and the prosecutor dismissed the other charge. The visiting judge sentenced 

Gernert to 180 days in jail with 177 days suspended and two years of community 

control and ordered him to pay a fine and court costs. As conditions of his 

community control, the court prohibited Gernert from consuming or possessing any 

alcoholic beverages and required him to participate in the Ohio Lawyers Assistance 

Program (“OLAP”). Gernert’s driver’s license was also administratively 
SUPREME COURT OF OHIO

4

suspended for one year. However, the court granted him limited driving privileges 

to drive to and from work and medical, court, and counseling appointments.

Second OVI Offense—September 2022

{¶ 9} On September 2, 2022, at approximately 11:30 p.m., an Ohio State 

Highway Patrol trooper observed Gernert driving a Jeep northbound on Spring 

Street in Bucyrus. While following the Jeep, the trooper ran its license-plate 

number through the Law Enforcement Automated Data System (“LEADS”). He 

learned that Gernert owned the Jeep and that he had an active driver’s-license 

suspension with limited driving privileges. The trooper continued to follow the 

Jeep and observed it weaving in its lane and driving on the solid white line to the 

right. He activated his overhead emergency lights and pulled Gernert over to the 

side of the road.

{¶ 10} When the trooper approached the vehicle, he noticed Gernert in the 

driver’s seat and confirmed that his appearance matched the photo of the registered 

owner that he had seen on LEADS. The trooper immediately noticed a strong odor 

of alcohol coming from the vehicle and that Gernert’s speech was heavily slurred. 

In response to the trooper’s request that Gernert exit his vehicle, Gernert shut the 

driver’s-side window and stared straight ahead. The trooper knocked on the 

window and instructed Gernert to exit the vehicle, but Gernert opened the window 

slightly and shook his head to indicate that he would not comply. When the trooper 

asked how much he had had to drink that night, Gernert told him, “None.” And 

when asked again to exit the vehicle, Gernert said, “Call my parents.”

{¶ 11} After the trooper informed Gernert that he would be charged with 

obstructing official business if he did not exit the vehicle, Gernert opened the door 

and swung his legs out. He was not wearing any shoes, and he braced himself 

against the car frame to exit the vehicle. Due to Gernert’s unsteadiness, the trooper

assisted him back to the patrol car, where he administered the horizontal-gaze 
January Term, 2024

5

nystagmus test, which Gernert failed. Gernert refused to complete any additional 

tests.

{¶ 12} Gernert was arrested on suspicion of OVI and taken to the Crawford 

County Jail. There, he refused to submit to a breathalyzer test. He was charged 

with three first-degree misdemeanor offenses—OVI under R.C. 4511.19(A)(1)(a), 

refusal to submit to chemical testing under R.C. 4511.19(A)(2), and driving under 

suspension under R.C. 4510.14(A)—and a minor-misdemeanor seatbelt infraction. 

He was also charged with a probation violation in his May 2022 case. Again, due 

to Gernert’s position as the interim city law director, a special prosecutor and 

visiting judge were appointed to the case.

{¶ 13} After five days in custody, Gernert was arraigned and released on 

his own recognizance. Upon his release, he was required to wear a Secure 

Continuous Remote Alcohol Monitor (“SCRAM”) ankle bracelet that would alert 

the probation department of any alcohol consumption.

{¶ 14} On November 1, 2022, Gernert pleaded guilty to the OVI offense 

and the prosecutor dismissed the remaining charges. Gernert also admitted that his 

conduct violated the terms of his community-control conditionsimposed in his May 

2022 OVI case. The visiting judge sentenced Gernert to 180 days in jail with 157 

days suspended and credit for five days served. He also ordered Gernert to serve 

18 days of house arrest and two years of community control and to pay a fine and 

court costs. Gernert’s probation in his May 2022 case was extended to November 

1, 2024, and his driver’s license was administratively suspended for one year. 

Although Gernert was eligible for limited driving privileges, he did not apply for 

them and did not drive during that suspension.

Failure to Prosecute Crawford County Municipal-Court Case

{¶ 15} In his capacity as the interim city law director, Gernert was 

scheduled to prosecute a driving-under-suspension case before the Crawford 

County Municipal Court on May 19, 2023. Approximately ten minutes before the 
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6

trial was scheduled to start, Gernert telephoned the court clerk. The clerk had 

difficulty understanding Gernert because his speech was heavily slurred, but the 

clerk surmised that Gernert wanted to dismiss the charges based on his indication

that he would “call off” the police officer in the case. The clerk informed the 

magistrate presiding over the trial of Gernert’s call. The magistrate interpreted 

Gernert’s call as a request for a continuance, denied the request, and dismissed the 

case for failure to prosecute.

{¶ 16} Later that day, Gernert’s probation officer made an unannounced 

visit to Gernert’s home and found him “highly intoxicated.” Gernert admitted to 

having consumed alcohol, and there was a half-empty bottle of Wild Turkey 

present. As a result, Gernert was charged with a probation violation and ordered to 

wear a SCRAM device. He pleaded guilty to those violations, and the court 

extended his probation to November 1, 2025.

{¶ 17} Gernert relapsed again in September 2023. The following month, he 

freely reported the relapse to his probation officer and asked to be placed on a 

SCRAM monitor for a year while he participated in Alcoholics Anonymous (“AA”) 

and counseling. At his disciplinary hearing, Gernert testified that the SCRAM 

device was placed on his ankle on October 13, 2023, approximately six weeks

earlier, and that he had not consumed any alcohol since that time.

Findings of Misconduct

{¶ 18} The parties stipulated and the board found by clear and convincing 

evidence that Gernert’s conduct violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer 

from engaging in conduct that is prejudicial to the administration of justice) and 

8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the 

lawyer’s fitness to practice law). We adopt the board’s finding that Gernert’s 

conduct violated Prof.Cond.R. 8.4(d).

{¶ 19} A hearing panel must determine by clear and convincing evidence 

that an attorney has committed misconduct before a sanction may be imposed, 
January Term, 2024

7

Gov.Bar R. V(12)(I), and in Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 

2013-Ohio-3998, 997 N.E.2d 500, ¶ 21, we explained that in order to find a 

violation of Prof.Cond.R. 8.4(h), the evidence must demonstrate that either (1) the 

lawyer engaged in misconduct that adversely reflects on the lawyer’s fitness to 

practice law even though that conduct is not specifically prohibited by the rules or 

(2) the conduct giving rise to a specific rule violation is so egregious as to warrant 

an additional finding that it adversely reflects on the lawyer’s fitness to practice 

law. Although not specifically found by the board and although not specifically 

prohibited by another disciplinary rule, we find that Gernert’s two OVI convictions

and his failure, in his role as interim city law director, to prosecute a driving-undersuspension case due to his own intoxication adversely reflect on his fitness to 

practice law. We therefore adopt the board’s finding that Gernert violated 

Prof.Cond.R. 8.4(h).

SANCTION

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

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

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

imposed in similar cases.

Aggravating and Mitigating Factors

{¶ 21} In this case, the parties have stipulated and the board has found that 

two aggravating factors are present—a pattern of misconduct and multiple offenses. 

See Gov.Bar R. V(13)(B)(3) and (4). The parties also have stipulated and the board 

has found that five mitigating factors are present: Gernert (1) has no prior 

discipline, (2) made full and free disclosure to the board and exhibited a cooperative 

attitude toward the disciplinary proceedings, (3) submitted evidence of his good 

character and reputation, (4) had other penalties or sanctions imposed for his 

misconduct, and (5) has engaged in other interim rehabilitation. See Gov.Bar R. 

V(13)(C)(1), (4), (5), (6), and (8).
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8

{¶ 22} Gernert submitted nine character letters from attorneys, judges, and 

the mayor of Bucyrus. The authors of those letters attested to Gernert’s diligence, 

honesty, and professionalism. They also expressed their belief that with treatment, 

Gernert would continue to be a productive member of Bucyrus’s small legal 

community. Given his status as an elected official, Gernert issued a public apology 

in a local newspaper, taking full responsibility for his conduct and expressing his 

commitment to his treatment for his alcoholism.

{¶ 23} Following his first OVI offense in May 2022, Gernert voluntarily 

contacted OLAP and was referred to a substance-abuse treatment center.1 He 

completed a 30-day inpatient treatment program, followed by an intensive 

outpatient treatment program (with sessions four times a week for three hours), then

regular outpatient therapy for one and a half hours once a week. Gernert testified 

that he plans to participate in his outpatient therapy “in perpetuity.”

{¶ 24} Following his May 2023 relapse, Gernert wore a SCRAM device 

through July and completed another six to eight weeks of intensive outpatient 

therapy before resuming regular outpatient therapy. He also attended three AA 

meetings a week from May through September 2023. Throughout that time, 

Gernert checked in with and forwarded his treatment records to OLAP. Gernert 

testified that in addition to receiving a monthly shot to ease his alcohol cravings, he 

takes a low-dose antidepressant and sees a psychiatrist once a month to discuss 

stress management.

{¶ 25} Although there was substantial evidence regarding Gernert’s 

alcoholism and some evidence regarding his depression and stressors, the board 

noted that he did not offer a diagnosis of a disorder by a qualified healthcare 

professional. Therefore, the board found that the parties did not submit sufficient 

1. The board found Gernert’s testimony that he was unaware of the option to sign a contract with 

OLAP until February 2023 to be credible. Therefore, the board did not attribute any aggravating 

effect to his delay in entering into an OLAP contract.
January Term, 2024

9

evidence to establish the existence of a mitigating substance-use or mental disorder

under Gov.Bar R. V(13)(C)(7).

The Recommended Sanction and Precedent

{¶ 26} Relator recommended that Gernert be suspended from the practice 

of law for two years, fully stayed on conditions intended to assist his recovery from 

alcohol dependence and to protect the public. Gernert did not suggest a particular

sanction but acknowledged that a stayed suspension was appropriate.

{¶ 27} In determining the appropriate sanction to recommend for Gernert’s 

misconduct, the board considered nine cases in which we sanctioned attorneys and 

judges for misconduct that occurred while they were under the influence of alcohol 

or drugs. In two of those cases—Disciplinary Counsel v. Connor, 105 Ohio St.3d 

100, 2004-Ohio-6902, 822 N.E.2d 1235, and Cleveland Metro. Bar Assn. v. 

Strauss, 165 Ohio St.3d 45, 2021-Ohio-1263, 175 N.E.3d 516—we imposed fully 

stayed suspensions of one year or less.

{¶ 28} In Connor, a judge—who had previously been publicly remanded 

for an alcohol-related offense—was convicted of driving under the influence of 

alcohol in another state. Following that conviction, Connor entered into an OLAP 

contract, fully complied with that contract, and dedicated himself to recovery. He

completed an inpatient treatment program, strictly complied with his after-care 

program, and had a sustained period of abstinence prior to his disciplinary hearing. 

Noting Connor’s commitment to his recovery and the fact that his performance as 

a judge “remain[ed] above reproach,” we found that he posed no risk to the public 

or the good of the judicial system. Id. at ¶ 20. We imposed a conditionally stayed 

six-month suspension for Connor’s misconduct. Id. at ¶ 21.

{¶ 29} In Strauss, the attorney drove while intoxicated, struck a police 

vehicle that was parked at the scene of another accident, and continued driving. He 

later crashed into the median, abandoned his vehicle, and fled on foot. Strauss

pleaded no contest to six misdemeanor offenses arising out of that incident, 
SUPREME COURT OF OHIO

10

including OVI, resisting arrest, leaving the scene of an accident, and unsafe 

operation of a vehicle in the vicinity of an emergency vehicle. Mitigating factors 

consisted of Strauss’s clean disciplinary record, his full cooperation in the 

disciplinary proceedings, and the imposition of criminal penalties for his 

misconduct; no aggravating factors were found. Id. at ¶ 10-11. Notably, an 

assessment completed as part of Strauss’s criminal sanction found that he had no 

substance-use disorder. Id. at ¶ 16. We imposed a conditionally stayed one-year

suspension for Strauss’s misconduct. Id. at ¶ 18.

{¶ 30} The board also considered four cases in which we imposed 

conditionally stayed two-year suspensions on attorneys who had engaged in deceit 

or client-related misconduct while under the influence of drugs or alcohol: 

Disciplinary Counsel v. Ault, 110 Ohio St.3d 207, 2006-Ohio-4247, 852 N.E.2d 

727; Disciplinary Counsel v. Wineman, 121 Ohio St.3d 614, 2009-Ohio-2005, 906 

N.E.2d 1117; Disciplinary Counsel v. Scurry, 115 Ohio St.3d 201, 2007-Ohio4796, 874 N.E.2d 521; and Stark Cty. Bar Assn. v. Kelley, 164 Ohio St.3d 443, 

2021-Ohio-770, 173 N.E.3d 471.

{¶ 31} Ault, a judge, was convicted of two misdemeanor offenses for 

deceiving multiple doctors into prescribing narcotics to satisfy his addiction to 

painkillers, but there was no evidence that Ault’s addiction had compromised his 

professional performance. At the time of Ault’s disciplinary hearing, he had 

successfully completed a two-year OLAP contract and shown a sustained 

commitment to his recovery. Ault at ¶ 17. We imposed a two-year suspension for 

Ault’s misconduct and stayed that suspension on conditions designed to support his 

recovery—namely, that he enter into a new two-year OLAP contract and serve a 

two-year period of monitored probation. Id. at ¶ 25.

{¶ 32} In Wineman and Scurry we imposed two-year suspensions stayed on 

similar conditions on attorneys who handled—or attempted to handle—their 

professional affairs while intoxicated. Wineman attempted to represent two clients 
January Term, 2024

11

in court while he was intoxicated. He also met with a third client while obviously 

intoxicated and then represented that client at a municipal-court pretrial hearing and 

jury trial while he appeared to be under the influence of alcohol. Although the 

client was convicted of the charged offense, the court later vacated that conviction, 

in part because of Wineman’s possible intoxication during trial. Like Gernert, 

Wineman was found to have violated rules prohibiting attorneys from engaging in 

conduct that is prejudicial to the administration of justice and conduct that 

adversely reflected on the lawyer’s fitness to practice law. See Wineman at ¶ 5, 10. 

Unlike Gernert, however, Wineman was found to have failed to provide competent 

representation to one of his clients. See id. at ¶ 10.

{¶ 33} Scurry did not appear in court while under the influence of alcohol 

like Wineman, but he repeatedly met with clients, telephoned law-enforcement 

offices, and called the Madison County Municipal Court all while intoxicated to 

the point that he was incoherent. Like Gernert, Scurry was found to have engaged 

in multiple instances of conduct that adversely reflected on his fitness to practice 

law. See Scurry, 115 Ohio St.3d 201, 2007-Ohio-4796, 874 N.E.2d 521, at ¶ 3, 6, 

8, 11. But Scurry also violated two other rules requiring attorneys to maintain a 

respectful, dignified, and courteous attitude toward courts. Id. at ¶ 11.

{¶ 34} Compared to Gernert’s two aggravating factors, Scurry had just 

one—a history of prior discipline, id. at ¶ 14, and Wineman had none, Wineman, 

121 Ohio St.3d 614, 2009-Ohio-2005, 906 N.E.2d 1117, at ¶ 13. While Wineman 

shared several mitigating factors in common with Gernert, both Wineman and 

Scurry established their diagnosed alcoholism as a mitigating factor and had 

sustained periods of successful treatment and sobriety by the time of their 

respective disciplinary hearings. See Wineman at ¶ 13, 15; Scurry at ¶ 14-17.

{¶ 35} In Kelley, the attorney committed multiple ethical violations when 

he abandoned at least 15 clients during a substance-abuse and mental-health crisis. 

Thanks to the action of another attorney, Kelley’s affected clients’ cases were 
SUPREME COURT OF OHIO

12

quickly reassigned to other attorneys. Like Gernert, Kelley did not present 

sufficient evidence to establish his substance-use disorder as a mitigating factor, 

though he did present evidence that he was participating in treatment and was 

committed to his recovery despite several relapses. See Kelley, 164 Ohio St.3d 443, 

2021-Ohio-770, 173 N.E.2d 471, at ¶ 13-14, 17. We suspended Kelley for two 

years and stayed the entire suspension on conditions to support his recovery that 

were similar to those we imposed in Ault, Wineman, and Scurry. See Kelley at 

¶ 19.

{¶ 36} In addition to those decisions imposing conditionally stayed 

suspensions for substance-use-related misconduct, the board also considered 

several cases in which we imposed actual suspensions—specifically, two-year 

suspensions with 18 months conditionally stayed—for alcohol- or drug-related 

conduct that affected the attorney’s professional performance. However, the board 

distinguished those cases on their facts, noting that they all involved attorney 

misconduct that caused harm to clients. See Cincinnati Bar Assn. v. Washington, 

109 Ohio St.3d 308, 2006-Ohio-2423, 847 N.E.2d 435 (during periods of alcohol 

and cocaine use, attorney billed multiple clients for work he had not performed and 

converted retainer fees to his own use); Disciplinary Counsel v. Hoppel, 129 Ohio 

St.3d 53, 2011-Ohio-2672, 950 N.E.2d 171 (attorney accepted retainers from 

multiple clients, used that money to buy cocaine, and neglected his clients’ legal 

matters); Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005-Ohio-6045, 837 

N.E.2d 369 (while abusing alcohol and illegal drugs, attorney accepted retainers 

from numerous clients, neglected their cases, lied to conceal his neglect, and was 

slow to comply with requests for refunds of unearned fees).

{¶ 37} With the exception of the one incident before the Crawford County 

Municipal Court that resulted in a dismissal for Gernert’s failure to prosecute, 

Gernert’s alcoholism does not appear to have affected his practice of law. The 

board expressed concern that Gernert had not demonstrated a sustained period of 
January Term, 2024

13

successful treatment and had relapsed two months before his disciplinary hearing. 

However, citing the applicable mitigating factors—particularly Gernert’s voluntary 

outreach to OLAP, his commitment to working toward sobriety, his improved 

mental health, and the evidence of his good character and reputation—the board 

concluded that an actual suspension is not warranted in this case.

{¶ 38} The board therefore recommends that Gernert be suspended from the 

practice of law for two years, fully stayed on the conditions that he (1) remain in 

compliance with the terms of his February 13, 2023 suspension and extend that 

contract through the term of his stayed suspension, (2) complete, in addition to the 

requirements of Gov.Bar R. X, three hours of continuing legal education (“CLE”)

focused on alcoholism, substance abuse, or mental-health issues, (3) comply with 

his court-ordered probation, (4) serve a two-year period of monitored probation in 

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

The Court Adopts the Board’s Recommended Sanction

{¶ 39} In crafting the appropriate sanctions for attorneys who have engaged 

in misconduct, “ ‘we examine each case individually and impose the discipline we 

believe appropriate based on the unique circumstances of each case.’ ” Toledo Bar 

Assn. v. Hales, 120 Ohio St.3d 340, 2008-Ohio-6201, 899 N.E.2d 130, ¶ 21, quoting 

In re Disciplinary Action Against Ruffenach, 486 N.W.2d 387, 390 (Minn.1992);

see also Gov.Bar R. V(13)(A). “We are ever mindful that the primary purpose of 

the disciplinary process is not to punish the offender but to protect the public from 

lawyers who are unworthy of the trust and confidence essential to the attorneyclient relationship.” Columbus Bar Assn. v. Kiesling, 125 Ohio St.3d 36, 2010-

Ohio-1555, 925 N.E.2d 970, ¶ 44, citing Disciplinary Counsel v. Agopian, 112 

Ohio St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10.

{¶ 40} After thoroughly reviewing the record and our applicable precedent, 

we agree with the board’s assessment that Gernert’s misconduct is more serious 

than the misconduct at issue in Connor and Strauss. Gernert’s misconduct 
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14

consisted of two OVI convictions and two separate violations of the terms of

probation imposed for his criminal conduct—in contrast to the single drivingunder-the-influence incident charged in Connor. Similarly, Gernert’s alcoholrelated misconduct spanned over a year and involved several relapses of an 

apparent alcohol-use disorder, in contrast to the misconduct at issue in Strauss, 

which occurred over a single drunken night that was apparently unrelated to any 

substance-use disorder. Regardless, Gernert is aware of his previous shortcomings 

and the insidious nature of his disorder, and he has voluntarily sought the assistance 

of a SCRAM device to keep him accountable as he continues to work through AA 

and counseling on his journey toward recovery.

{¶ 41} We also agree with the board’s determination that Gernert’s 

misconduct was less egregious than the misconduct at issue in Washington, Hoppel, 

Greco, and Kelley because Gernert caused no harm to clients through the 

conversion of client funds, the neglect of clients’ legal matters, or the complete 

abandonment of clients. And, to his credit, Gernert did not appear in court or 

attempt to represent any clients while he was intoxicated as the attorneys in

Wineman and Scurry had.

{¶ 42} Although Gernert was once intoxicated when he was scheduled to 

be in court to prosecute a driving-under-suspension case in his capacity as the 

interim city law director, he called to alert the municipal court that he was unable 

to proceed. While this conduct resulted in the dismissal of that case, there is no 

evidence to suggest that Gernert’s alcohol-use disorder otherwise impaired his 

professional performance. On the contrary, the character letters that Gernert

submitted—primarily from judges, attorneys, magistrates, and the mayor of 

Bucyrus—uniformly describe him as a prepared and effective attorney and 

expressly note that to the authors’ knowledge, his alcohol use had not caused any 

impairment or adverse consequences in the performance of his professional duties.
January Term, 2024

15

{¶ 43} On these facts, we conclude that a two-year suspension, stayed on 

the conditions recommended by the board, will both protect the public and support 

Gernert’s recovery.

CONCLUSION

{¶ 44} Accordingly, Brian Nicholas Gernert is hereby suspended from the 

practice of law in Ohio for two years, fully stayed on the conditions that he (1) 

remain in compliance with the terms of his February 13, 2023 OLAP contract and 

extend the term of that contract through the term of the stayed disciplinary 

suspension, (2) complete, in addition to the requirements of Gov.Bar R. X, three 

hours of CLE focused on alcoholism, substance abuse, or mental-health issues, (3) 

comply with the terms of probation imposed in his criminal cases, (4) serve a twoyear period of monitored probation in accordance with Gov.Bar R. V(21), and (5) 

engage in no further misconduct. If Gernert fails to comply with any condition of 

the stay, the stay will be revoked and he will be required to serve the full two-year 

suspension. Costs are taxed to Gernert.

Judgment accordingly.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and DETERS,

JJ.

BRUNNER, J., not participating.

_________________

Joseph M. Caligiuri, Disciplinary Counsel, and Benjamin B. Nelson, 

Assistant Disciplinary Counsel, for relator.

Coughlan Law Firm, L.L.C., and Jonathan E. Coughlan, for respondent.

_________________