The Supreme Court of Ohio today issued the Bucyrus city law director a two-year, fully stayed suspension for ethical violations arising from two separate drunken driving arrests and subsequent probation violations.

Brian N. Gernert was appointed Bucyrus’ interim law director in October 2021. His criminal convictions and professional conduct violations occurred before his election to the post in November 2023.

In a per curiam opinion, the Supreme Court found that Gernert has demonstrated a “commitment to working toward [his] sobriety.” After comparing Gernert’s conduct to that of other attorneys and judges who had committed alcohol-related offenses, noting the limited effect that Gernert’s alcohol use had on his professional performance and weighing the character letters submitted by others active in the Bucyrus legal community, the Court determined an actual suspension from practicing law was not necessary to protect the public.

Following a May 2023 probation violation, Gernert’s probation was extended until November 2025. The Court stated it would revoke the stay of Gernert’s disciplinary suspension and make him serve the full two-year suspension if he violated the terms of his probation again. The Court also placed other conditions on Gernert.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the per curiam opinion. Justice Jennifer Brunner did not participate in the case.

Twice Convicted Lawyer Also Violated Probation Terms
In May 2022, Gernert was driving his SUV in Bucyrus around 10 p.m. when another driver called 911 to alert police to a possible intoxicated driver. The caller saw an SUV veer into a ditch, strike a utility pole, and drive away. A Crawford County sheriff’s deputy located Gernert’s vehicle and noticed it sustained heavy damage to the passenger side. Gernert told the deputy he only had a “drink or two.” The deputy attempted to have Gernert perform a field sobriety test, but Gernert lost his balance during the gaze test, and he was arrested on suspicion of operating a motor vehicle while under the influence of alcohol or drugs (OVI).

Once Gernert was in the deputy’s cruiser, the officer observed an open beer can and a bottle of whiskey on the floorboard of Gerner’s SUV. He noticed a large chunk of wood protruding from the fender area of the passenger side, which he presumed was from the utility pole. Another deputy found the broken passenger-side mirror from Gernert’s vehicle at the scene of the crash.

Gernert refused to take a breathalyzer test and was charged with OVI and refusal to submit to chemical testing.

Because of his position as interim law director, a special prosecutor and visiting judge were appointed to his case. He pleaded guilty to OVI, and the other charge was dismissed. He was sentenced to 180 days in jail, with 177 days suspended, and placed on two years of community control. He was prohibited from consuming alcohol and required to participate in the Ohio Lawyers Assistance Program (OLAP). His driver’s license was suspended for one year, but the Crawford County Municipal Court allowed him to drive to and from work as well as to medical, court, and counseling appointments.

Four months later, an Ohio State Highway Patrol trooper observed Gernert’s SUV weaving as he drove through Bucyrus around 11:30 p.m. He learned that Gernert had a suspended license with limited driving privileges, so he pulled Gernert over.

Gernert initially refused to leave the vehicle and slurred his speech while speaking to the trooper. When asked to exit the vehicle, Gernert responded, “Call my parents.” When the trooper told Gernert he would be charged with obstructing official business if he did not get out of the vehicle, Gernert opened the door and swung his legs out. He was not wearing shoes and braced himself against his SUV to exit. The trooper escorted Gernert to his patrol car, where Gernert failed a gaze test and refused to complete any additional sobriety tests.

At the county jail, Gernert again refused further testing and was charged with OVI, refusing a chemical test, driving under suspension, a seatbelt infraction, and a probation violation.

After five days in custody, Gernert was released and required to wear an ankle bracelet that would alert the probation department of any alcohol consumption.

In November 2022, he pleaded guilty to the OVI offense and all other charges were dropped. His probation from the May 2022 case was extended to November 2024, and his license was suspended for another year. This time, he did not apply for driving privileges.

Law Director Calls Off Case; Found Intoxicated at Home
In May 2023, Gernert was scheduled to prosecute a person for driving under suspension. About 10 minutes before trial, he called the municipal court clerk, who had difficulty understanding Gernert. The clerk surmised that Gernert wanted to dismiss the charges when Gernert indicated that he would “call off” the police officer scheduled to testify in the case.

The magistrate handling the case interpreted the call as a request for a continuance, which was denied, and the case was dismissed for failure to prosecute.

Later that day, a probation officer made an unannounced visit to Gernert’s home and found him “highly intoxicated.” Gernert admitted to drinking and was charged with a probation violation that led to his probation being extended to November 2025.

Gernert relapsed again in September 2023 and reported the violation to his probation officer. Gernert, who attended Alcoholics Anonymous meetings and counseling, would later testify that he had not consumed alcohol since October 2023.

Lawyer Violated Professional Conduct Rules
Based on his convictions and probation violations, the Office of the Disciplinary Counsel filed a complaint against Gernert in June 2023 with the Board of Professional Conduct. The parties stipulated, and the board agreed, that Gernert engaged in conduct that was prejudicial to the administration of justice when he failed to prosecute the driving under suspension case. The board also found that his conduct adversely reflected his fitness to practice law.

The Court adopted the board’s findings of misconduct and specified that “Gernert’s two OVI convictions and his failure, in his role as interim city law director, to prosecute a driving-under-suspension case due to his own intoxication adversely reflect on his fitness to practice law.”

Supreme Court Considers Sanction
When recommending a sanction in a disciplinary case, the board considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. The board found Gernert engaged in a pattern of misconduct and committed multiple offenses. The board also reported that Gernert submitted nine character letters from attorneys, judges, and the Bucyrus mayor that conveyed Gernert’s diligence, honesty, and professionalism. The authors expressed the belief that with treatment, “Gernert would continue to be a productive member of Bucyrus’s small legal community,” the opinion stated.

The board noted that Gernert issued a public apology in the local newspaper following his second OVI arrest and contacted OLAP following his first arrest to start treatment. The board reported that Gernert has completed intensive inpatient and outpatient treatment programs.

The board indicated the letters from the Bucyrus legal community and mayor “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.”

The board recommended, and the Court agreed, to stay Gernert’s two-year suspension under the condition that he remain in compliance with his OLAP contract; complete three hours of continuing legal education focused on alcoholism, substance abuse, and mental health issues; engage in no further misconduct; and comply with his probation terms. He must also serve two years of monitored probation under the supervision of another attorney. The Court also ordered Gernert to pay the costs of the disciplinary proceedings.

2024-0173. Disciplinary Counsel v. Gernert, Slip Opinion No. 2024-Ohio-1946.

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