The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Halligan, Slip Opinion No. 2019-Ohio-3748.]
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. 2019-OHIO-3748
DISCIPLINARY COUNSEL v. HALLIGAN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Halligan, Slip Opinion No.
2019-Ohio-3748.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to act with reasonable diligence in representing a client,
failing to provide competent representation to a client, and engaging in
conduct that is prejudicial to the administration of justice—Two-year
suspension, with 18 months stayed and with conditions that include 18
months of monitored probation.
(No. 2018-1090—Submitted January 9, 2019—Decided September 19, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct
of the Supreme Court, No. 2017-060.
_______________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Brian Joseph Halligan of Ashland, Ohio, Attorney
Registration No. 0024113, was admitted to the practice of law in Ohio in 1983.
{¶ 2} In a complaint certified to the Board of Professional Conduct on
December 1, 2017, relator, disciplinary counsel, charged Halligan with multiple
violations of the Rules of Professional Conduct arising from his convictions of two
alcohol-related offenses, his conviction for driving while his license was under
suspension, his attempt to represent a client in court while under the influence of
alcohol, his lack of diligence in representing one client, his incompetent
representation of and failure to reasonably communicate with another client, and
his failure to refund unearned fees to two clients.
{¶ 3} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors. Based on those stipulations and evidence
presented at the June 7, 2018 hearing, the board found that Halligan engaged in the
charged misconduct and recommended that he be suspended from the practice of
law for two years with 18 months stayed on conditions. The board also
recommended that certain conditions be placed on Halligan’s reinstatement to the
practice of law and that he be required to serve 18 months of monitored probation.
{¶ 4} We accept the board’s findings and suspend Halligan from the
practice of law for two years with 18 months stayed on the conditions recommended
by the board. We also adopt the board’s recommendations regarding the conditions
for Halligan’s reinstatement and require him to serve 18 months of monitored
probation upon reinstatement.
Misconduct
Count One: Under the Influence of Alcohol
{¶ 5} In November 2016, Halligan was appointed to represent Johnnie
Rossi, who had been indicted on five felony charges in the Ashland County Court
of Common Pleas. However, on December 16, 2016, Halligan was charged with
2
January Term, 2019
misdemeanor offenses of operating a vehicle while under the influence of alcohol
(“OVI”) and failing to stop within an assured clear distance ahead after he collided
with a vehicle at a traffic light. He was granted limited driving privileges on
December 21, 2016.
{¶ 6} Rossi’s case was set for a jury trial on January 31, 2017. That
morning, Rossi noticed that Halligan smelled of alcohol and was slurring his words.
Court personnel overheard Rossi accuse Halligan of being intoxicated, noticed that
Halligan smelled of alcohol, and alerted the judge. When the judge asked Halligan
if he had consumed alcohol that morning, he stated that he had not—but at his
disciplinary hearing he acknowledged that he had not volunteered that he drank a
significant amount of alcohol the night before. The judge went on the record and
noted that court personnel had smelled alcohol and that Halligan refused to submit
to a breath-alcohol test. He removed Halligan from the case and continued Rossi’s
jury trial.
{¶ 7} Halligan left the courthouse. Law-enforcement officers responding to
a report of Halligan’s apparent intoxication found him seated in the driver’s seat of
his car and observed signs of his intoxication. He admitted to having had several
alcoholic beverages the night before but denied that he had consumed any alcohol
that morning.
{¶ 8} Law-enforcement officers arrested Halligan and drew his blood for a
blood-alcohol test approximately four hours after Rossi’s jury trial had been
scheduled to start. Although Halligan claimed that he did not feel that he was
impaired that morning, his blood-alcohol concentration was .108 grams by weight
of alcohol per 100 milliliters of whole blood.1 Halligan was charged in Ashland
1. For purposes of a violation of R.C. 4511.194 for having physical control of a vehicle while under
the influence, a person is under the influence of alcohol if the person has a concentration of at least
.08 percent but less than .17 percent by weight per unit volume of alcohol in the person’s whole
blood. See R.C. 4511.19(A)(1)(b) and 4511.194(A)(2).
3
SUPREME COURT OF OHIO
Municipal Court with a misdemeanor offense of having physical control of a
vehicle while under the influence of alcohol. As a result of the new charge, the
driving privileges the court had granted in his earlier OVI case were revoked on
February 14, 2017, but Halligan did not receive notice of that revocation.
{¶ 9} When Halligan appeared for a hearing on his physical-control charge
on March 13, 2017, court-security and law-enforcement personnel noticed that
Halligan again smelled of alcohol. The police department also received
information that Halligan had driven himself to the courthouse despite the fact that
he might not have had driving privileges. Following the hearing, Halligan left the
courthouse, got into his car, and drove out of the parking lot. A law-enforcement
officer then stopped him. The officer observed signs of intoxication, and Halligan
admitted that he had consumed vodka the night before, but he denied having had
any alcoholic beverages recently. Halligan was charged with OVI and driving
under suspension. Analysis of a blood sample obtained from Halligan that day
showed that he had a blood-alcohol concentration of .037 grams by weight of
alcohol per 100 milliliters of whole blood.
{¶ 10} In August 2017, Halligan pleaded guilty to the charge of having
physical control of a vehicle while under the influence of alcohol and the charge of
driving under suspension; the March OVI charge was dismissed. The judge
sentenced him to 30 days in jail, all suspended on the condition that he complete a
one-year period of probation, and to pay a fine for the physical-control conviction,
and 60 days in jail with 57 days suspended on the condition that he complete one
year of probation for driving under suspension.
{¶ 11} In September, Halligan pleaded guilty to his December OVI charge.
The court dismissed the remaining charge and sentenced Halligan to 180 days in
jail with 177 days suspended, ordered him to pay a fine, and suspended his driver’s
license for one year.
4
January Term, 2019
{¶ 12} Based on this conduct, the parties stipulated and the board found that
Halligan violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent
representation to a client), 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of justice).
They also agreed that Halligan’s use of alcohol, his pattern of alcohol-related traffic
offenses, and his court appearances on behalf of himself and his clients while under
the influence of alcohol were sufficiently egregious to support an additional finding
that his conduct adversely reflected on his fitness to practice law in violation of
Prof.Cond.R. 8.4(h). See Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-
Ohio-3998, 997 N.E.2d 500, ¶ 21.
Count Two: Neglect and Failure to Refund Unearned Fee
{¶ 13} Halligan agreed to represent Ted Kyser in a small-claims matter for
a flat fee of $200 plus the filing fee. On August 11, 2016, he sent Kyser a text
message stating, “I will prepare the small claims complaint on your behalf and you
file it. I will appear at the trial and try it on your behalf.” Kyser paid the $200 flat
fee that day. Ten days later, Halligan notarized Kyser’s signature on the complaint.
Kyser called multiple times to inquire about the status of the filing. Halligan did
not always respond, but when he did, he stated that the complaint had not been filed
or that he was verifying whether it had been filed.
{¶ 14} In October, Kyser asked Halligan to send him a copy of a letter that
Halligan had purportedly sent to the defendant’s attorney and to refund his money
because Halligan had not yet filed the complaint. Halligan told him, “I will
represent you at the trial * * * I will get it done.” He told Kyser that that he would
personally file the complaint the next day, but he waited more than one month to
complete the filing. Although court documents identified Halligan as Kyser’s
counsel, Halligan told Kyser that Halligan’s presence was not required for a
scheduled conciliation and pretrial hearing. Kyser attended the hearing without
5
SUPREME COURT OF OHIO
counsel and later informed Halligan that the court had scheduled a February 15,
2017 trial.
{¶ 15} As the trial date approached, Kyser sent Halligan several text
messages—one reminding him of the trial date and asking if they needed to meet,
a second asking if Halligan was “good for Wednesday [the day of trial],” and a
third, just two days before trial, stating, “Guess we’ll do this without your council
[sic], I’ll get with you about refund of money paid for representation.” Halligan
did not receive or respond to the messages because law-enforcement officers had
seized his cell phone during his January 31, 2017 arrest and kept it for
approximately three months. Halligan effectively withdrew from the representation
when he failed to appear at the trial. And he did not refund any portion of his flat
fee.
{¶ 16} The parties and the board agreed that this conduct violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client) and 1.16(e) (requiring a lawyer to promptly refund any
unearned fee upon the lawyer’s withdrawal from employment).
Count Three: Incompetent Representation, Failure to Keep Client Reasonably
Informed, and Failure to Refund Unearned Fee
{¶ 17} In December 2016, MHP Management, L.L.C., retained Halligan to
file an eviction action against one of its tenants. In January, Halligan filed a
complaint seeking to evict the tenant and recover $1,483 in damages for unpaid rent
and fees. The next day, an entry was issued in the case stating that the check that
Halligan had issued for MHP’s filing fee was one dollar short and that it was
returned to Halligan with a statement of costs for $111.2 However, Halligan had
billed MHP $961 for his representation and the $111 filing fee, and the company
had paid him in full.
2. The numerical portion of the check was written for “$110.00,” but in words, the amount on the
check stated, “One hundred and eleven dollars 00/100.”
6
January Term, 2019
{¶ 18} Neither the parties nor Halligan appeared at a February hearing on
MHP’s complaint. Consequently, the court dismissed the case, ordered MHP to
pay the costs associated with the case, and ordered MHP or Halligan to pay the
delinquent filing fee within ten days. Halligan admitted that he failed to
communicate with MHP after he missed the scheduled hearing or to inform the
company that its case had been dismissed. After receiving notice of the dismissal
from the court, and despite having already remitted the filing fee to Halligan, MHP
paid the $111 filing fee directly to the court. At Halligan’s disciplinary hearing, he
admitted that he owed the company restitution of $111 for that fee.
{¶ 19} The parties and the board agreed that Halligan’s conduct in MHP’s
case violated Prof.Cond. R. 1.1, 1.4(a)(3) (requiring a lawyer to keep the client
reasonably informed about the status of a matter), and 1.16(e).
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.
{¶ 21} The parties stipulated that four aggravating factors are present:
Halligan acted with a dishonest or selfish motive, engaged in a pattern of
misconduct, committed multiple offenses, and failed to make restitution to the
clients harmed by his misconduct. See Gov.Bar R. V(13)(B)(2), (3), (4), and (9).
{¶ 22} Based on Halligan’s testimony at the disciplinary hearing, the board
found that two additional aggravating factors are present. First, the board found
that Halligan failed to take full responsibility for his misconduct based on the fact
that his testimony at the disciplinary hearing often conflicted with his stipulations.
See Gov.Bar R. V(13)(B)(7). For example, Halligan maintained that he was not
under the influence of alcohol on the morning of Rossi’s scheduled jury trial even
though he stipulated to the facts surrounding his alcohol-related offenses and the
7
SUPREME COURT OF OHIO
uncontroverted evidence of his blood-alcohol concentration that day. Halligan also
insisted that the $200 fee he charged Kyser covered only filing the complaint—
even though he stipulated that he had agreed to file the complaint and represent
Kyser at trial for that flat fee. Furthermore, Halligan attempted to downplay his
own responsibility for his actions by suggesting that Rossi had accused him of being
intoxicated as part of a plan to terminate his representation, that he faced criminal
charges because the police were after him, and that a magistrate who had previously
been his landlord had “drummed this stuff up.”
{¶ 23} The board also expressed concern about Halligan’s use of alcohol.
At his disciplinary hearing, Halligan testified that he has had periodic issues with
alcohol for 10 to 15 years. He explained that after several years of sobriety, he
began drinking to help him sleep and to avoid using prescribed opiates following a
2015 surgery. Halligan testified that at the time of his disciplinary hearing, he had
not engaged in alcohol-related counseling for three to four years and had not
attended an Alcoholics Anonymous meeting for approximately two years. In the
months leading up to his disciplinary hearing he sought an alcohol assessment but
completed it just days before his disciplinary hearing. According to Halligan, the
counselor who conducted the assessment recommended that he acknowledge that
he is an alcoholic and commence weekly counseling sessions. The board found
that Halligan’s failure to begin treatment for his alcohol-related offenses before his
disciplinary hearing qualified as an aggravating factor.
{¶ 24} The board adopted three of the parties’ four stipulated mitigating
factors—Halligan had no prior disciplinary offenses, he presented evidence of his
good character and reputation, and he had had other penalties or sanctions imposed
for his criminal conduct. See Gov.Bar R. V(13)(C)(1), (5), and (6). The parties
also stipulated that Halligan made full and free disclosure of his conduct and
cooperated during the pendency of this matter. See Gov.Bar R. V(13)(C)(4). Citing
8
January Term, 2019
the conflicts between Halligan’s testimony and his stipulations, however, the board
found that his cooperation was limited to his prehearing disclosures.
{¶ 25} In determining the appropriate sanction for Halligan’s misconduct,
the board noted that Halligan was not forthcoming with the court about his use of
alcohol before Rossi’s trial, and it recognized the proposition that “an actual
suspension should be imposed for dishonest conduct, particularly when that
conduct is designed to ‘mislead a court or client,’ ” Disciplinary Counsel v. Rooney,
110 Ohio St.3d 349, 2006-Ohio-4576, 853 N.E.2d 663, ¶ 13, quoting Akron Bar
Assn. v. Holder, 102 Ohio St.3d 307, 2004-Ohio-2835, 810 N.E.2d 426, ¶ 43. In
Rooney, this court imposed a six-month suspension from the practice of law on an
attorney who had repeatedly assured his client that he was taking care of a probate
matter despite the fact that he never filed any documents in court.
{¶ 26} The board also considered our decision in Columbus Bar Assn. v.
Gill, 137 Ohio St.3d 277, 2013-Ohio-4619, 998 N.E.2d 1141. A judge suspected
that Gill, like Halligan, was under the influence of alcohol while he was
representing a client in court. Gill also pleaded guilty to a single count of reckless
operation of a motor vehicle after hitting a car on the highway, fleeing the scene,
and failing to report the accident. All told, Gill committed more than 40 rule
violations arising from nine grievances, with many of those violations arising from
his failure to have or use a client trust account, his failure to effectively
communicate with multiple clients, and his failure to respond to the relator’s
inquiries about those matters.
{¶ 27} Unlike Halligan, Gill had a history of prior discipline. Gill also
acknowledged the wrongfulness of his conduct and established that his alcoholism
and a recently diagnosed mental disorder qualified as mitigating factors with regard
to at least some of his misconduct. Gill had entered into a five-year contract with
the Ohio Lawyers Assistance Program (“OLAP”), had followed all of OLAP’s
treatment recommendations, and had been sober for nearly a year at the time of his
9
SUPREME COURT OF OHIO
disciplinary hearing. Given his significant history of alcohol-related relapses, we
suspended Gill from the practice of law for two years, with the second year stayed
on the condition that he wear an alcohol-monitoring device. To protect the public
and support Gill’s ongoing treatment, we also placed stringent conditions on his
reinstatement to the practice of law and ordered him to serve two years of monitored
probation.
{¶ 28} After comparing Halligan’s conduct and the relevant aggravating
and mitigating factors in this case to those in Gill, the board recommended that we
impose a two-year suspension with 18 months stayed on conditions for Halligan’s
misconduct, including a requirement that he submit to an OLAP assessment, that
we condition his reinstatement upon compliance with his court-ordered probation
and the terms of any contract recommended by OLAP, and that we require him to
serve 18 months of monitored probation.
{¶ 29} We accept the board’s findings of fact, misconduct, and aggravating
and mitigating factors. We also find that the board’s recommended sanction is
consistent with the sanction in Gill and the sanctions we have imposed on other
attorneys who have attempted to represent their clients while under the influence of
alcohol. We agree that the recommended sanction is appropriate in this case. See,
e.g., Disciplinary Counsel v. Wineman, 121 Ohio St.3d 614, 2009-Ohio-2005, 906
N.E.2d 1117 (imposing a two-year suspension stayed in its entirety on an attorney
in the complete absence of any aggravating factors and the presence of multiple
mitigating factors, including the attorney’s full cooperation in the disciplinary
process and the absence of dishonesty); Disciplinary Counsel v. Scurry, 115 Ohio
St.3d 201, 2007-Ohio-4796, 874 N.E.2d 521 (imposing a two-year suspension
stayed in its entirety, with a five-year period of monitored probation, on an attorney
whose alcoholism qualified as a mitigating factor).
{¶ 30} Accordingly, Brian Joseph Halligan is suspended from the practice
of law in Ohio for two years with 18 months stayed on the conditions that he engage
10
January Term, 2019
in no further misconduct and that within 60 days of the date of this order, he (1)
submit proof that he has completed an OLAP assessment and executed the
necessary releases to authorize OLAP to discuss his case with relator and (2) make
restitution of $200 to Ted Kyser and $111 to MHP Management, L.L.C. As
conditions of reinstatement to the practice of law, Halligan shall be required to
submit proof that he has complied with the terms of his court-ordered probation in
the Ashland Municipal Court cases and that he has abstained from the use of
alcohol, that he is in compliance with the terms of any contract arising from his
OLAP assessment, and that he has paid the costs of these proceedings. Upon his
reinstatement to the practice of law, he shall serve 18 months of monitored
probation in accordance with Gov.Bar R. V(21). Costs are taxed to Halligan.
Judgment accordingly.
O’CONNOR, C.J., and FRENCH and DONNELLY, JJ., concur.
FISCHER, J., concurs, with an opinion.
STEWART, J., concurs in judgment only.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
_________________
FISCHER, J., concurring.
{¶ 31} I concur in the court’s decision, but I write separately to address the
dissatisfaction with this court’s order of a general term of monitored probation that
is expressed in an opinion concurring in part and dissenting in part. I
wholeheartedly agree with the assertion found in that opinion that monitored
probation is a valuable—I would say necessary—tool in Ohio’s attorney-discipline
system. See Disciplinary Counsel v. Sarver, 155 Ohio St.3d 100, 2018-Ohio-4717,
119 N.E.3d 405, ¶ 45-47 (Fischer, J., concurring in part and dissenting in part).
However, I do not agree that this court must set forth specific conditions every time
11
SUPREME COURT OF OHIO
that monitored probation is imposed. Neither the Rules for the Government of the
Bar nor this court’s case law supports such a requirement for specificity.
{¶ 32} This court has a duty to oversee the practice of law in this state under
Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio Constitution. As the final
arbiter of attorney discipline, this court makes the ultimate conclusion as to the facts
and imposes the ultimate sanction, if any, in disciplinary cases. See Cincinnati Bar
Assn. v. Heitzler, 32 Ohio St.2d 214, 220, 291 N.E.2d 477 (1972). The possible
sanctions include monitored probation. See Gov.Bar R. V(12)(A).
{¶ 33} Though this court can order monitored probation as a sanction, we
are by no means required, as advocated in the opinion concurring in part and
dissenting in part, to attach specific conditions to the terms of the monitored
probation. Under Gov.Bar R. V(12)(A)(4), this court may order probation with
those conditions we deem necessary. Similarly, Gov.Bar R. V(12)(I), which allows
a disciplinary hearing panel to recommend a period of probation, requires that the
panel “include in its report any conditions of probation.” (Emphasis added.) The
language of these two rules indicates then that this court may impose a term of
probation without conditions. The failure to impose probation without specific
conditions is not, as the opinion concurring in part and dissenting in part concludes,
“an abdication of our duty under the Rules for the Government of the Bar.” Id. at
41. Rather, this court must tailor an attorney’s monitored probation to the specific
facts of each case and the needs of the attorney who is being disciplined.
{¶ 34} This court has ordered various types of monitored probation, ranging
from a general term of probation without specific conditions, see, e.g., Sarver, 155
Ohio St.3d 100, 2018-Ohio-4717, 119 N.E.3d 4717, at ¶ 32 (ordering “a two-year
period of monitored probation in accordance with Gov.Bar R. V(21)”), to a very
specific and detailed term of probation, see, e.g., Disciplinary Counsel v. Bennett,
146 Ohio St.3d 237, 2016-Ohio-3045, 54 N.E.3d 1232, ¶ 19 (ordering “a three-year
period of monitored probation during which [the respondent] must cooperate and
12
January Term, 2019
work with the monitor, who shall act as a mentor and provide guidance to [the
respondent] regarding the proper operation and management of a law practice” and
further requiring that “during the first 12 months of [the respondent’s] probationary
period, he must complete at least six hours of continuing-legal education courses
approved by relator on law-office management and operations”).
{¶ 35} This court’s longstanding practice has been to analyze each attorney-
discipline case on its own basis and to impose sanctions tailored to the particular
facts of each case. Doing so allows us to impose very specific conditions of
probation in cases in which an attorney’s misconduct involves a particular type of
action or inaction that can be addressed, in part, through specific monitoring. See
Akron Bar Assn. v. Parkin, 155 Ohio St.3d 596, 2018-Ohio-5093, 122 N.E.3d 1256,
¶ 36 (ordering “a two-year period of monitored probation in accordance with
Gov.Bar R. V(21) to ensure that [the respondent] has implemented law-office
management policies and procedures to comply with the Rules of Professional
Conduct”).
{¶ 36} In other cases, ordering a general term of probation without specific
conditions enables us to keep “ ‘on a short leash,’ ” see Sarver at ¶ 47 (Fischer, J.,
concurring in part and dissenting in part), a lawyer who has been investigated
numerous times but who has not been previously charged (perhaps because a relator
believed that the evidence presented was not clear and convincing evidence). A
general term of probation without specific conditions may also be appropriate in
cases in which this court, the Board of Professional Conduct, or the hearing panel
may not be privy to all the details of a respondent’s situation but may still believe
that some type of ongoing relationship, such as monitored probation, might be
helpful in protecting the public and assisting the attorney in his or her return to
practice. For example, a relator may know or believe, based on experience and the
facts developed in the case, that a respondent has an illness (such as an alcohol,
drug, or gambling addiction) that the respondent will not acknowledge or that the
13
SUPREME COURT OF OHIO
respondent has acted out of character while dealing with the death of a family
member or friend. In these and many other instances, imposing a general term of
probation without conditions enables this court to ensure that the respondent will
be monitored while also respecting the potentially sensitive nature of the case. The
public is then protected, and it may be that the life of the lawyer is made better as
well.
{¶ 37} The rules currently provide for the imposition of monitored
probation without specific conditions when appropriate. Even when no specific
conditions are imposed by this court, Gov.Bar R. V(21) lists several conditions for
probation. Because ordering a general term of monitored probation without
specified conditions is appropriate in a variety of cases, I respectfully disagree with
the conclusion of the opinion concurring in part and dissenting in part that this court
must set forth specific conditions every time that we impose monitored probation.
I accordingly concur fully in the court’s decision.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 38} I agree with the majority that in order to protect the public, an actual
suspension of respondent is warranted, and I concur in the following part of the
court’s order:
Brian Joseph Halligan is suspended from the practice of law in Ohio
for two years with 18 months stayed on the conditions that he engage
in no further misconduct and that within 60 days of the date of this
order, he (1) submit proof that he has completed an [Ohio Lawyers’
Assistance Program (“OLAP”)] assessment and executed the
necessary releases to authorize OLAP to discuss his case with relator
and (2) make restitution of $200 to Ted Kyser and $111 to MHP
Management, L.L.C. As conditions of reinstatement to the practice
14
January Term, 2019
of law, Halligan shall be required to submit proof that he has
complied with the terms of his court-ordered probation in the
Ashland Municipal Court cases and that he has abstained from the
use of alcohol, that he is in compliance with the terms of any
contract arising from his OLAP assessment, and that he has paid the
costs of these proceedings.
Majority opinion at ¶ 30.
{¶ 39} I part ways with the majority over the lack of detail regarding the
period of probation imposed by the court after respondent Brian Joseph Halligan’s
reinstatement to the practice of law. I agree that probation is appropriate but
disagree with the generic, standard-free way it is imposed in this case. The majority
opinion states, “Upon his reinstatement to the practice of law, he shall serve 18
months of monitored probation in accordance with Gov.Bar R. V(21).” This
nonspecific condition gives little guidance to Halligan or his monitor and does not
promote public confidence that the underlying causes of Halligan’s misconduct will
be addressed.
{¶ 40} Too often, this court issues orders for probation that lack specific
conditions—orders that state simply that a respondent is on probation for a set term.
See, e.g., Akron Bar Assn. v. DeLoach, 143 Ohio St.3d 39, 2015-Ohio-494, 34
N.E.3d 88, ¶ 20; Disciplinary Counsel v. Bartels, 151 Ohio St.3d 144, 2016-Ohio-
3333, 87 N.E.3d 155, ¶ 16, reinstated, 150 Ohio St.3d 1284, 2017-Ohio-4432, 82
N.E.3d 1171, ¶ 3; Disciplinary Counsel v. Jackson, 146 Ohio St.3d 341, 2016-
Ohio-1599, 56 N.E.3d 936, ¶ 9. In other instances, we have provided more detail
and imposed conditions concerning law-office management to improve a
respondent’s ability to ethically engage in the practice of law. See, e.g.,
Disciplinary Counsel v. Bennett, 146 Ohio St.3d 237, 2016-Ohio-3045, 54 N.E.3d
1232, ¶ 19; Akron Bar Assn. v. Bednarski, 148 Ohio St.3d 615, 2017-Ohio-522, 71
15
SUPREME COURT OF OHIO
N.E.3d 1093, ¶ 19-21; Cleveland Metro. Bar Assn. v. Gay, 153 Ohio St.3d 251,
2018-Ohio-2170, 104 N.E.3d 745, ¶ 15.
{¶ 41} We must establish conditions every time we impose probation.
Monitored probation is a valuable tool in Ohio’s discipline system; it enables us to
protect the public while educating the attorney and correcting the underlying
misconduct. But our 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.
{¶ 42} Only this court has the authority to set the conditions for probation;
we also have the duty to impose conditions when we impose probation. Gov.Bar
R. V(12)(A) provides that any judicial officer or attorney found guilty of
misconduct shall be disciplined. Gov.Bar R. V(12)(A)(4) provides that this court
may impose, in conjunction with an order of suspension, “probation for a period of
time upon conditions as the Supreme Court determines.” Those conditions define
the duties of the relator and the monitor in regard to probation. They also define
the expectations this court has of a respondent.
{¶ 43} Gov.Bar R. V(21) establishes the basic procedures of probation, and
conditions are essential to the scheme. Gov.Bar R. V(21)(A)(1) states that “[i]f the
disciplinary order entered by the Supreme Court imposes a term of probation,” the
relator shall “[s]upervise the term and conditions of probation.” The specified
duties of the monitoring attorney are tied to the conditions set by this court: Gov.Bar
R. V(21)(B)(1) provides that the monitoring attorney shall “[m]onitor compliance
by the respondent with the conditions of probation imposed by the Supreme Court”;
Gov.Bar R. V(21)(B)(2) provides that the monitoring attorney shall “[f]ile with the
relator * * * written, certified reports regarding the status of the respondent and
compliance with the conditions of probation”; and Gov.Bar R. V(21)(B)(3)
provides that the monitoring attorney shall “[i]mmediately report to the relator any
violations by the respondent of the conditions of probation.” Under Gov.Bar R.
16
January Term, 2019
V(21)(E), “[t]he relator immediately shall investigate any report of a violation of
the conditions of probation by the respondent.” The respondent faces sanctions by
this court for failing to abide by the conditions of probation. Gov.Bar R. V(21)(K).
And pursuant to Gov.Bar R. V(21)(D), when applying for a termination of
probation, the respondent must include an affidavit “stating that the respondent has
complied with the conditions of probation.” This court orders the termination of
probation if all costs have been paid, no formal discipline proceedings are pending
against the respondent, and “the respondent has complied with the conditions of
probation.” Therefore, the probation procedure rests entirely on the conditions set
by this court.
{¶ 44} The efficacy of probation also rests on the conditions set by this
court. Without guidance as to the specific conditions of probation—conditions
specifically designed by this court to protect the public and rehabilitate the
respondent—a term of monitored probation has little value. In an instance of
monitored probation without conditions, who determines what the monitor is
monitoring? What is the focus of interactions between the disciplined attorney and
the monitor? What kind of access does the monitor have to the disciplined
attorney’s case files, to his or her billing records? And what constitutes a violation
of probation? In a case in which this court sets no conditions, answers to these
questions could result only from conditions imposed by someone other than this
court, which would be directly contrary to Gov.Bar R. V(12)(A)(4), which, again,
allows “[p]robation for a period of time upon conditions as the Supreme Court
determines.”
{¶ 45} 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. Supervisory activities should be tailored to benefit a
respondent. It is critical for the long-term success of a respondent who has been
disciplined that each case be evaluated on the facts and circumstances of the
17
SUPREME COURT OF OHIO
misconduct. Much like a trial-court judge who must impose individualized
sentencing for each defendant, this court should impose individualized conditions
for each term of monitored probation.
{¶ 46} Therefore, in this case, I would impose the following specific
conditions for the term of probation: (1) respondent must abstain from alcohol, (2)
if respondent has completed his contract with OLAP (if one is ordered), before the
term of probation imposed under this case ends, respondent shall purchase and wear
an alcohol monitor and execute a release with the provider of that monitor to allow
the probation supervisor—the relator or a monitoring attorney—to access the data
from the monitor, (3) respondent shall maintain an active-case list or a docketing
system and shall give the relator or monitoring attorney an inventory of active cases
each month, (4) each month, respondent shall give the relator or monitoring
attorney all the fee agreements, including flat-fee agreements, that he enters into
with clients so that the relator or monitoring attorney can review them, (5) each
month, the relator or monitoring attorney shall randomly review files of
respondent’s active cases to ensure his compliance with the Rules of Professional
Conduct, (6) prior to the termination of probation, as part of his continuing-legal-
education requirements under Gov.Bar R. X, respondent shall attend a continuing-
legal-education seminar that includes instruction on fee agreements and the
requirements for flat-fee agreements, (7) 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.
{¶ 47} 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. Because the majority imposes a term of
probation without conditions, I dissent in part.
18
January Term, 2019
DEWINE, J., concurs in the foregoing opinion.
_________________
Scott J. Drexel, Disciplinary Counsel, and Lia J. Meehan, Assistant
Disciplinary Counsel, for relator.
Brian Joseph Halligan, pro se.
_________________
19