[Cite as Disciplinary Counsel v. Brenner, 122 Ohio St.3d 523, 2009-Ohio-3602.]




                        DISCIPLINARY COUNSEL v. BRENNER.
                      [Cite as Disciplinary Counsel v. Brenner,
                        122 Ohio St.3d 523, 2009-Ohio-3602.]
Attorneys — Misconduct — Engaging in conduct involving fraud, deceit,
        dishonesty, or misrepresentation — Conduct adversely reflecting on
        fitness to practice law — Conduct prejudicial to the administration of
        justice — Two-year suspension, with one year stayed.
      (No. 2008-2438 — Submitted April 7, 2009 — Decided July 29, 2009.)
    ON CERTIFIED REPORT of the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 07-086.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Todd A. Brenner of Columbus, Ohio, Attorney
Registration No. 0051839, was admitted to the practice of law in Ohio in 1991. In
June 2008, relator, Disciplinary Counsel, filed an amended two-count complaint
against respondent alleging several instances of professional misconduct arising
out of respondent’s representation of two clients in separate personal-injury
actions.
        {¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we suspend respondent’s license to practice for two years, with
one year stayed. The recommendation is based on the board’s findings that
respondent violated ethical standards by engaging in an extended pattern of fraud
and deception. We agree that respondent engaged in this professional misconduct
and that a two-year suspension of his license, with one year stayed, is appropriate.
                                       Misconduct
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       {¶ 3} The parties stipulated to many of the material facts in this case. As
will be set forth more fully below, respondent admitted that in each count, he
concealed fee agreements from his law firm and retained funds of which the firm
was unaware. He also stipulated that in each case, he wrote, or directed to be
written, checks from the firm’s operating account for expenses that he attributed
to his representation of those clients. Respondent stipulated that those checks
actually represented payment for personal expenses incurred by respondent or his
family members.
       {¶ 4} The complaint alleged in both counts that respondent had violated
DR 1-102(A)(4) (a lawyer shall not engage in conduct involving fraud, deceit,
dishonesty, or misrepresentation), 1-102(A)(5) (a lawyer shall not engage in
conduct that is prejudicial to the administration of justice), and 1-102(A)(6) (a
lawyer shall not engage in conduct that adversely reflects upon his fitness to
practice law). The complaint additionally alleged, as to Count II only, violations
of DR 2-106(A) (a lawyer shall not enter into an agreement for, charge, or collect
a clearly excessive fee) and DR 5-101(A)(1) (except with the consent of a client
after full disclosure, a lawyer shall not accept employment if the exercise of
professional judgment on behalf of the client will be or reasonably may be
affected by the lawyer’s financial and personal interests).
                                      Count I
       {¶ 5} In 2002, respondent was retained by Mary Stailey, his
stepgrandmother, to represent her in a personal-injury case. Despite what appears
to be a computer-generated description of the matter as “contingency/personal
injury/flat fee,” respondent stated that there was no written fee agreement between
the two because she was a close family member and he was not seeking a fee.
       {¶ 6} Respondent settled the case for approximately $35,000.          After
speaking with Stailey and her son (respondent’s stepfather), it was agreed that she
would receive $25,000 immediately. Respondent would keep the balance in his




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law firm’s client trust account for the payment of any medical bills that were
outstanding. It is undisputed that Stailey directed him to keep whatever funds
remained after the payment of her medical bills — regardless of the amount — as
a token of appreciation.
       {¶ 7} Respondent did not tell his law firm about this arrangement or the
approximately $10,000 that he retained in the client trust account pursuant to that
agreement. Respondent quickly transferred nearly $5,000 from the client trust
account into the office operating account. Over the next four months, respondent
either wrote or directed office personnel to write three checks from the operating
account, and he recorded them as expenses related to Stailey’s case.         These
checks — totaling almost $9,650 — were written to three different payees but
were not related to her case. Instead, the checks were actually payment for
personal expenses incurred by respondent or his wife. Respondent additionally
billed the office account for over $400 in travel expenses that he alleged were
related to Stailey’s case but that respondent never actually incurred.
                                      Count II
       {¶ 8} In 2004, Linda Weaver hired respondent to represent her in a
personal-injury matter. The two entered into a written contingent-fee agreement
in which the firm would receive one-third of any settlement proceeds. Eight
months later, respondent settled Weaver’s case for $23,500.
       {¶ 9} Respondent met with Weaver to discuss fund disbursement.
Pursuant to the contingency agreement, slightly more than $7,800 was owed to
respondent’s law firm.     There were also some outstanding medical bills that
would require payment, and respondent discussed two options with Weaver. The
first was for her to take the balance of the settlement money and pay the bills
herself. The second option was for her to take an agreed-upon portion of the
proceeds and for respondent to retain the rest to pay for known bills that he hoped
to negotiate to a lower amount. Weaver agreed to the latter. She elected to take




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$6,000 and additionally told respondent that she wanted him to keep whatever
amount was left after all her medical bills were paid.       The veracity of that
arrangement is not in dispute. None of this agreement, however, was reduced to
writing or disclosed to respondent’s law firm.
       {¶ 10} Respondent ultimately settled Weaver’s outstanding medical bills
for approximately $2,100. Respondent met with her again and they agreed that
she would take an additional amount of approximately $2,700.           His client,
however, was apparently concerned that a medical provider might submit a last-
minute invoice, and so it was also agreed that respondent would continue to retain
the remaining approximately $4,790 until the statute of limitations on her
personal-injury action passed.      Once that deadline passed, Weaver instructed
respondent to keep the remaining funds, irrespective of amount. Ultimately, no
further medical bills were submitted.
       {¶ 11} Respondent did not tell his firm about this fee. Instead, he wrote,
or had written for him, four checks from the operating account totaling $4,790
that he attributed to Weaver’s case. Once again, however, the checks were for
respondent’s personal bills.
                               Disciplinary Proceedings
       {¶ 12}    Respondent stipulated that in both counts, his actions violated
DR 1-102(A)(4) and (6). He did not stipulate to the other violations alleged;
those charges, along with the appropriate sanction to be imposed, were the focus
of a hearing before a panel of the Board of Commissioners on Grievances and
Discipline.
       {¶ 13} Respondent, at the hearing, emphasized that neither client was
harmed by his misconduct.         In each case, his retention and personal use of
settlement proceeds was at the express directive of his clients. When asked why
he nevertheless concealed portions of these fee agreements and funds from his
firm, his response was two-fold. Respondent first testified that he considered the




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remainder of Stailey’s settlement proceeds to be a gift from her, and he implied
that he initially had a similar opinion of the Weaver funds. He also spoke,
however, of his lingering resentment over a partner’s handling of fees in a very
large personal-injury case and felt that those feelings may have clouded his
judgment.
        {¶ 14}     Respondent also presented witnesses and approximately 40
letters attesting to his good character. This was in addition to two stipulated
mitigating factors contained in BCGD Proc.Reg. 10(B)(2)(a) and (d) – the lack of
a prior disciplinary record and respondent’s full cooperation with the disciplinary
proceedings.
        {¶ 15}     Besides the stipulated violations, the panel also found that
respondent violated DR 1-102(A)(5) in both counts. It found no violation of DR
2-106(A) or 5-101(A)(1), and recommended that those charges be dismissed.
        {¶ 16}     In determining the sanction to be recommended, the panel
considered the stipulated mitigating factors and found a third mitigating factor – a
timely good-faith effort at restitution.1 It also found three aggravating
circumstances: (1) dishonest or selfish motive, (2) pattern of misconduct, and (3)
multiple offenses.       BCGD Proc.Reg. 10(B)(1)(b), (c), and (d).                It further
commented that “[a]n argument could be made that the funds Respondent stole
could have been utilized by his former law firm.”                  Ultimately, the panel
recommended that respondent be suspended from the practice of law for 18
months, with 12 months of that suspension stayed.
        {¶ 17}     The board adopted the panel’s findings of fact and conclusions
of law, but not its recommendation. Stressing respondent’s “extended pattern of




1. After respondent was expelled from his law firm, he tendered a check to Mary Stailey for an
additional $11,000 that she refused to cash. At about the same time, he also wrote a personal
check to Linda Weaver for $4,790.




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fraud and deception,” the board recommended that respondent be suspended for
two years, with one year of the suspension stayed.
       {¶ 18} Relator and respondent both filed objections to the board’s report.
Relator objected to the dismissal of DR 2-106(A) and 5-101(A)(1) in Count II.
Relator argued with respect to the former that respondent’s retention of the
remainder of Weaver’s settlement proceeds after her medical bills were paid,
when combined with the amount of the contingency fee, constituted a clearly
excessive fee.   With respect to the conflict-of-interest provisions of DR 5-
101(A)(1), relator asserted that respondent’s potential desire to maximize the
amount of funds left over after medical bills were paid could have compromised
his ability to negotiate the best possible medical billing outcome for Weaver.
       {¶ 19}    Respondent objected to the finding that he twice violated DR 1-
102(A)(5). He proposed that the rule required that the misconduct take place in
an administrative or judicial proceeding. He argued that because both of the cases
involved were settled without going to court, there was no violation of that
Disciplinary Rule.
       {¶ 20} Respondent also objected to the board’s proposed sanction. He
disputed the board’s characterization of his acts as exhibiting a pattern of
misconduct, describing them instead as simply isolated incidents. He stressed his
recognition of, and remorse for, the wrongfulness of his acts, as well as the
evidence of his good character. He reiterated the lack of harm to either client and
noted that he had made restitution to both individuals.
       {¶ 21}    We have thoroughly reviewed the record and are not persuaded
by either relator’s or respondent’s objections to the board’s conclusions of law or
recommendation. We accordingly adopt the board’s findings of fact, conclusions
of law, and recommendation. We find that an actual suspension is warranted,
based on previous decisions that have deemed this sanction to be appropriate
where an attorney has misappropriated law-firm funds. See Toledo Bar Assn. v.




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Crossmock, 111 Ohio St.3d 278, 2006-Ohio-5706, 855 N.E.2d 1215 (indefinite
suspension for attorney’s misappropriation of over $300,000 in law firm funds);
Disciplinary Counsel v. Yajko (1997), 77 Ohio St.3d 385, 674 N.E.2d 684
(indefinite suspension for misappropriating law firm funds on 20 occasions);
Disciplinary Counsel v. Crowley (1994), 69 Ohio St.3d 554, 634 N.E.2d 1008
(indefinite suspension for misappropriation of approximately $200,000 of law
firm funds); Columbus Bar Assn. v. Osipow (1994), 68 Ohio St.3d 338, 626
N.E.2d 935 (indefinite suspension for repeated failure to report fees to firm,
misrepresenting expenses, and misappropriation).
       {¶ 22} Respondent is hereby suspended from the practice of law in Ohio
for two years, with one year of the suspension stayed.       Costs are taxed to
respondent.
                                                          Judgment accordingly.
       LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and CUPP,
JJ., concur.
       MOYER, C.J., and PFEIFER, J., dissent and would suspend respondent from
the practice of law in Ohio for 18 months, with 12 months stayed.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger,
Assistant Disciplinary Counsel, for relator.
       The Anelli Law Firm, L.L.C., and Dianna M. Anelli, for respondent.
                          ________________________




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