LAWYERS

Columbus Bar Winter 2019

QUARTERLY Education Law In this issue, Columbus Bar Lawyers Quarterly explores topics all about education law, including articles about law school graduation numbers, student loan debt, Title IX developments and more. Plus, this issue will entertain you with pieces about limited guardianships, immigration law updates, navigating difficult workplaces and more.

A publication of the Columbus Bar Association â€˘ www.cbalaw.org

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Table of

LAWYERS

Contents

QUARTERLY

Winter 2019 President’s Page

Here We Are: 150 Years Later Sam Peppers

Bar Insider

6 9

Theme: The Heart of Your Legal Writing Mark Kitrick and Mark Lewis Lawyer Discipline Cases in the Supreme Court of Ohio Nelson E. Genshaft

Better Lawyer

Toxic v. Hostile Workplaces: When Does It Cross the Line? Alexis V. Preskar

Buy American and Hire American: An Executive Order with Immigration Consequences Payam Yazdani

Paralegal Pointers

PACO Affiliations: Paralegal Opportunities Local to National Brittany Hays and Callie Kessler

Points of Practice

24 26 30

Putting a Stop to the “Drop and Swap”? Commercial Real Estate Loophole May Soon Close Adam R. Todd The Empty Chair Doesn’t Need to be an Empty Opportunity: Apportioning Fault to Immune Employers Phillip M. Sarnowski The Four Cs of the “Limited Guardianship for Mental Health Care Purposes” Phillip Fierst

A Deep Divide: How Executive Order 13769 Changed Immigration Law Mazen Rasoul

Columbus Bar Association Editorial Board

Four Things Your Mediator Wishes You Would Do Shawn K. Judge

Chair

Winter ‘19: Education Law

Janyce Katz

Board Members Melanie Tobias Amy Koorn Ashley Johns Garth Rowbotham

Law Schools: The Real Employment Numbers for the Law Class of 2017 Jason M. Dolin

Guarding the Schoolhouse Gate: Protecting Privacy Rights for Transgender Students Hannah L. Botkin-Doty

Editor

Navigating Student Loan Debt Shalyn Smith and Laura Soltis

Design/Production

Rural Education Advocacy in Appalachian Ohio Lucy Schwallie

College Sex and Climate Change Leslie Albeit

Life Outside the Law

Eating Disorders Affect Lawyers, Too Scott R. Mote

Acadia National Park Has Something for Everyone Hon. David E. Cain

Lawyers with Artistic License: David Shroyer Heather G. Sowald

Brianna Antinoro

Sarah Curran

Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org

Advertising Burgie MediaFusion (614) 554-6294 leslie@burgiemediafusion.com

Jury Verdicts

Civil Jury Trials, Franklin County Common Pleas Court Monica L. Waller

NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.

Presidentâ€™s Page

Here We Are: 150 Years Later by SAM PEPPERS In 1869, Ulysses S. Grant was sworn in as President, the Cincinnati Red Stockings were founded as the first professional baseball team and Jesse James, the outlaw, was beginning his ignoble career throughout the Midwest. The Columbus Bar Association was also established in 1869, when six or so lawyers met together above a tavern in downtown Columbus to conceive an association that would advance their understanding of the law and better the members of their profession. That original gathering of lawyers has grown into an organization that now has almost 5,000 attorney and associate members; that has become diverse in the gender and ethnic makeup; and is recognized nationally as a progressive Bar association that provides innovative programs and services to lawyers throughout the state of Ohio and the local community. The Columbus Bar Association, born 150 years ago, still exists today to uphold the laws of our state and county; to improve the standards and competence of every lawyer; to promote civility, fellowship and networking among our members; to make legal services available to everyone; to aid the public in its understanding of the law; and to aid in the administration of justice.

150 years

1869-2019

COLUMBUS BAR ASSOCIATION

The Columbus Bar Association does this through its continuing legal education courses, its annual law specific institutes, its inc program that provides new lawyers with space and assistance in setting up their practices, its community forums (such as Constitutional Conversations) and its professional insurance programs â€“ to name a few of the services provided to our members and the community. The CBA takes its duties to its members and the community seriously as we continue to look for ways to improve the legal services provided and make access to those services universal. Another way the Columbus Bar Association has come a long way is in the diversity of the lawyers who make up the CBA Board of Governors and who make up the Bar. The Board has had members from the judiciary, from small firms, from large firms, sole practitioners, inhouse counsel, young and more seasoned practitioners, law professors and male and female lawyers. In the last few years, the Board has been almost evenly divided between men and women in its makeup. Since the year 2000, nine female lawyers and four African-American lawyers have served as president of the Board.

The CBA will continue to do what it can to provide opportunities for all who want to be a part of the Bar and to increase the access to justice for all who live in our community. 4 | Columbus Bar L aw yers Quarterly Winter 2019

In 1869, members met in the Franklin County Courthouse.

Image: www.courthousehistory.com

Further, the CBA is celebrating the 17th Anniversary of the Managing Partners Diversity Initiative this year. This initiative was created to increase the number of minority lawyers among the members of the Bar and has grown from 20 original law firm members to over 30, now including government offices and private employers. One way that diversification of the bar is being accomplished is through the CBAâ€™s Minority Clerkship Program, which most of the members of the MPDI participate in. The Clerkship Program gives minority law students a real-world legal experience by giving them employment as summer clerks at local law firms, government offices and private businesses. The CBA has been making a concerted effort to make sure the CBA Board of Governors and the members of the Bar reflect the diversity of our community. There is still much to be done to make sure that underrepresented segments of our community see themselves represented among the members of the Bar. The arrival in our community of immigrants from many parts of the world has made this task even more of a challenge. But the CBA will continue to do what it can to provide opportunities for all who want to be a part of the Bar and to increase the access to justice for all who live in our community. In the remaining part of my term as President, we will be focusing on these issues, diversity and access to justice, as well as the health and wellness of our members. 2019 promises to be a busy and productive year. As for the CBAâ€™s 150th Anniversary, the staff of the CBA have been planning events and celebrations to be held throughout the year 2019 for its Sesquicentennial. Please be on the lookout for those activities.

J.W. Baldwin, 1st president of the association

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Samuel A. Peppers, III, Esq.

Dinsmore & Shohl, LLP sam.peppers@dinsmore.com

5 | Columbus Bar L aw yers Quarterly Winter 2019

Bar Insider

Theme: The Heart of Your Legal Writing Law & Literature Series, Part 3 bY Mark Kitrick and Mark Lewis What do you care about when you’re immersed in reading a good story? Better, as a writer, what do you want your readers to care about when reading your stories? Better still, what lasting values, emotions or enduring feelings do you hope to inspire in your readers? Answer these questions—no easy task—and we might find some understanding of that notoriously obscure but most vital of story ingredients - theme. It is the organizing principle, the emotional core and the value-laden heart of all great writing. This is especially true of persuasive legal writing. Theme drives and organizes emotional engagement. A well-crafted theme works beneath the surface, unspoken and implicit, where its persuasive appeal nudges or taps our subconscious, the place from which we decide most matters in our lives.

But theme doesn’t tell us how to live well, relate to others or make the right decisions. It shows us the way. It reveals what’s relevant. It evokes meaning. It is inherent, generative and implicit. So, the first rule of theme is not to talk about theme in your legal writing—at least not explicitly. A surefire way to imperil theme is to call it out directly. We’ve all seen the familiar and often ill-advised opening, “This case is about . . . .” Although we can usually summarize our cases in tidy opening lines that encapsulate moral or emotional cornerstones, be wary of doing so automatically. Most of us don’t enjoy being told how to think at the outset of writing intended to persuade us. As you know from our earlier Law-Lit articles, we recommend showing readers the way through character, conflict and arc. It follows that the second rule of theme is to let theme emerge, at least in part, organically from your writing. In other words, let the act of writing extract or suggest possible themes. Close attention to the important facts will often help theme emerge. Ask yourself which facts are the most crucial to your legal story, and why? Your answers will not only focus your legal argument, but also likely suggest the emotional

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core of the story. As always, be sure to consider the other side’s best facts too. Still, you may want to use certain professional writing techniques, especially if you’re not so comfortable with the organic emergence of theme. We recommend five useful prompts and thought experiments that will help you develop theme in your writing. 1. If you’ve read our earlier Law-Lit articles, then you know to expect our calling card: character, conflict and arc. These often induce theme. Famed playwright Lajos Egri promotes this structural approach, advising us to devise theme with the same three story ingredients in mind. For example, the theme “frugality leads to waste” implies a frugal character, suggests conflict through the verb phrase “leads to” and reveals a likely ending with “waste”.1 Not only does this theme contain the three story ingredients, but it also shares universality of appeal and applicability, making it far more likely that your readers will grasp its meaning. Aim for thematic approaches that echo cherished values or cultural norms about right and wrong. Novelty is rarely necessary to build theme. Your theme must also

hew closely to the facts and arguments you present. Logical and factual inconsistencies might not ruin your story, but they will almost surely kill your legal arguments. 2. Give your writing a story title at the very start to orient you to its essence, to drive your narrative or argument. Your title should aim for the emotional center and value conflict inherent in your case. This may seem like tepid advice, or even ill-suited at the outset of any writing project, but effective theme-driven titles can serve as the most useful early organizing principle. They demand an overarching sense of your intentions as a writer, along with your best wishes for your reader’s interpretation. Keep in mind that your title/theme may change as your writing ensues. Be willing to change, again keeping in mind that your creativity and thinking will surely evolve through the act of writing. 3. Come up with a theme statement: one or two sentences that capture the core emotional meaning and value at stake. One helpful thought experiment is to imagine sitting around the kitchen table with family and friends enjoying coffee during an honest, open talk. They ask you what your legal writing is really about, what matters most in what you’re working on. Now, give your answer in less than 10 seconds. Work to crystallize this answer into a universal value statement true to both the particulars of your writing and the nature of the world in which we live. A tall order, we know. But this is what makes themes so compelling – their jointly universal and personal appeal.

screen writing coach Robert McKee.2 In searching for this irreducible meaning, concentrate on finding the right verb, preferably a transitive one with a direct object. This shows causality. And causality is crucial to theme because it shows your reader how the world works and what they can do to influence it. For instance, “Actions speak louder than words,” demonstrates the potency of the one-sentence theme reduction with a crisp, simple verb. 5. Collaborate with someone on theme by asking another what your writing is all about, whether it’s your colleague, friend or imaginary ideal legal audience. Whether we write with theme in mind at the outset, or allow it to grow more organically out of our writing, or a little of both, these five techniques offer us meaningful choices as legal writers who care about our readers, who value the quality of our prose and who seek to move others through our written word. 1

Egri, Lajos, The Art of Dramatic Writing: Its Basis in Creative Interpretation of Human Motives (Touchstone/Simon & Schuster, 1942), 8-9. Many of these examples and prompts draw also from Storycraft: The Complete Guide to Writing Narrative Nonfiction, Jack Hart (The University of Chicago Press, 2011), 143-45. Hart, too, relies on Egri’s pioneering work in narrative structure. 2 Story: Substance, Structure, Style, and The Principles of Screenwriting, Robert McKee (ReganBooks, 1997), 114-17.

Mark M. Kitrick, Esq.

Mark D. Lewis, Esq.

Kitrick, Lewis, & Harris, Co., LPA Kitrick, Lewis, & Harris, Co., LPA mlewis@klhlaw.com mkitrick@klhlaw.com

4. Similar to this last technique, but more focused still: find the one sentence that expresses your writing’s irreducible meaning or controlling idea, a phrase made popular by

One helpful thought experiment is to imagine sitting around the kitchen table with family and friends enjoying coffee during an honest, open talk. They ask you what your legal writing is really about, what matters most in what you’re working on. Now, give your answer in less than 10 seconds. 7 | Columbus Bar L aw yers Quarterly Winter 2019

Bar Insider

Lawyer

Discipline Cases in the Supreme Court of Ohio by NELSON E. GENSHAFT This article will highlight significant cases on lawyer discipline decided by the Ohio Supreme Court in recent months. Each of the cases noted below were presented to a panel of the Board of Professional Conduct and then reviewed by the Ohio Supreme Court. I have focused on discipline cases that involve contested issues under the Rules of Professional Conduct and sanctions. I have not included cases that involve motions, default judgments, resignations or reinstatements after a suspension, since those cases typically do not involve contested issues under the Rules.

1. Disciplinary Counsel v. Gold, Op. No. 2018-Ohio-3238, Decided Aug. 14, 2018. (Mismanagement of trust account; frivolous litigation; suspension). John Walter Gold of Hinckley, Ohio was charged with professional misconduct based on misappropriation of client funds, failure to comply with an agreed court order to hold funds in trust and engaging in a pattern of dishonesty and misrepresentation to conceal his misappropriation. Gold was engaged by a client to recover about $51,000 in unclaimed funds held by

the State. He filed a complaint in State court seeking declaratory judgment that his client was entitled to the funds. However, because the client had a 2010 discharge in bankruptcy, Gold notified the bankruptcy trustee of the claim. The trustee intervened in the State court case and filed an adversarial complaint in the re-opened bankruptcy case in which the trustee claimed that he was entitled to the entire amount. The parties stipulated in an agreed order that Gold would hold the funds until the Bankruptcy Court determined which party was entitled to funds and how the funds should be divided. Over the next year, Gold withdrew almost the entire amount of funds held in trust and distributed those funds to his client and to himself for fees, with no consent to these distributions from the Court. After considerable litigation, including an appeal to the 6th Circuit, the trustee and the client agreed on a distribution of the funds. The Bankruptcy Court approved the settlement and Gold was ordered to remit about $33,000 to the trustee. When he failed to pay, the trustee moved to hold Gold in contempt. After more proceedings, including a Chapter 7 filing by Gold, the Bankruptcy Court ordered Gold to pay the balance of the $33,000 as a fine, plus a sanction of $1600, the trusteeâ€™s legal fees and a daily fine for his continued noncompliance. In the discipline case, the parties stipulated to the facts and the Board found violations based on Goldâ€™s mismanagement of his trust account and his misconduct. The Supreme Court then decided on the appropriate sanction. The Board recommended that Gold be suspended for two years, with the second year stayed; Gold argued for a two-year suspension, fully stayed. The Court found that Gold misappropriated

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funds from a client and engaged in frivolous litigation in an attempt to conceal his misconduct. It found no basis that would warrant a fully-stayed suspension, and it suspended Gold for two years, with the second year stayed on the condition that he comply with his OLAP contract, pay all restitution and fines ordered by the bankruptcy court, engage in no further misconduct and serve a one-year monitored probation upon his reinstatement. On Oct. 26, the Court found Gold in contempt for failure to turn in his Supreme Court registration card and failure to file an affidavit of compliance with the Order of Suspension by Sept. 13.

2. Cincinnati Bar Association v. Fernandez, Op. No. 2018-Ohio-3828, Decided Sept. 25, 2018. (Neglect of client matters; improper fees; failure to cooperate; indefinite suspension). Justin Enrique Fernandez of Cincinnati was charged with neglect of client matters, improper retention of fees paid by those clients, overdrafts in his IOLTA and failure to respond in the disciplinary investigation of those grievances. The parties entered into stipulations and Fernandez testified at a hearing before a panel of the Board. The panel found violations and recommended an indefinite suspension, with reinstatement on certain conditions. The Board adopted the findings of the panel and recommended an indefinite suspension. It found that Fernandez obtained clients from a paralegal organization based in California, Morgan Drexen, Inc. Morgan Drexen referred clients to Fernandez, handled all communications with clients and managed client trust accounts where fees were deposited. In April 2015, a California federal court enjoined Morgan Drexen’s business and froze its assets. Morgan Drexen then filed a bankruptcy action and informed all clients that they should look to the attorneys that were retained for all further information on their cases. For his part, Fernandez was supposed to file bankruptcy actions for clients. He failed to do any of the required work and failed to return fees to the clients. Fernandez also failed to respond to letters from the Bar Association

asking about overdraws in his trust account. Fernandez objected to the Board’s recommended sanction, and urged the Court to impose the lesser sanction of a oneyear suspension. Fernandez based his request on the claim that he lacked a dishonest and selfish motive. He also asked the Court to take notice of his mental health issues, including a gambling addiction, and that as a homeless attorney, he demonstrated poor decisionmaking capabilities. The Court rejected these objections and determined that Fernandez was overwhelmed with up to 400 clients as a sole practitioner and demonstrated a selfish motive in not managing his practice properly. It held that Fernandez was indefinitely suspended, and that his reinstatement would be conditioned on full restitution of fees owed to clients, additional CLE, an examination by a mental healthcare professional and no further misconduct. Upon reinstatement, Fernandez is to submit to a two-year monitored probation.

3. Columbus Bar Association v. Okuley, Op. No. 2018Ohio-3857, Decided Sept. 26, 2018. (Violence after road incident; pattern of deceit; oneyear suspension with six months stayed). John Joseph Okuley of Columbus was charged with multiple violations stemming from an incident involving a confrontation between Okuley and a bicyclist, Eric Hansen, which then expanded to include a bystander, John Bahling. Okuley believed that Hansen hit his car while Okuley was stopped in traffic. Okuley pursued Hansen, who was on a bicycle, and pulled in front of Hansen, who collided with Okuley’s car. Bahling stopped and was videotaping the incident when Okuley demanded that he stop. Okuley then took Bahling’s phone, which was damaged during the struggle. All this resulted in a criminal misdemeanor charge against Okuley and a civil suit brought by Bahling. After Okuley’s misdemeanor conviction, the Relator filed a complaint against him. A panel of the Board heard evidence from Okuley, Hansen and Bahling. It concluded that Okuley created a danger for Hansen on the highway, acted violently against Bahling and engaged in a pattern of deceitful conduct in his

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Each of the cases noted below were presented to a panel of the Board of Professional Conduct and then reviewed by the Ohio Supreme Court. actions with law enforcement, the courts and Relator. It recommended a one-year suspension with six months stayed. However, the Board felt that Okuley’s conduct required a more severe sanction and recommended to the Court a two-year suspension, with the final year stayed. Okuley objected to the Board’s recommended sanction and urged the Court to adopt the findings and recommended sanction of the panel. The Court found that the panel’s evaluation was more appropriate. It considered the fact that even though Okuley did not accept responsibility for his actions, he suffered other consequences through his misdemeanor conviction and the restitution he paid to Bahling, plus settlement of the civil action brought by Bahling. The Court sanctioned Okuley with a one-year suspension, with the final six months stayed, conditioned on his compliance with the terms of his OLAP contract and no further misconduct.

4. Columbus Bar Association v. Rieser, Op. No. 2018-Ohio-3860, Decided Sept. 26, 2018. (Excessive fees; mismanagement of trust funds; two-year suspension with one-year stayed). David Paul Rieser of Columbus, a lawyer who has been disciplined in the past, was charged with multiple ethics rule violations by the Columbus Bar Association. In this case, Rieser represented a psychiatrist who was indicted for felony charges for workers’ compensation fraud, theft and tampering with records. Although there was no written fee agreement, Rieser and the client agreed on an initial deposit of $30,000, but the client continued to send Rieser monthly checks that ultimately came to nearly $108,000. Rieser put $50,000 of these funds in his client trust account, deposited $23,000 in his business account and endorsed two checks for approximately $25,000 to a local art gallery. Rieser did not maintain a client ledger or conduct periodic reviews of his trust account. Rieser advised the client to settle the criminal case by pleading to a misdemeanor, thus avoiding a felony conviction that would put the client’s medical license in jeopardy. The client had no complaints about the legal work performed or the

result, but filed a grievance solely on a claim that the fee was excessive. The parties stipulated to the facts, the allegations of misconduct and an agreed sanction of a two-year suspension with the second year stayed. The panel adopted the parties’ stipulations of fact and misconduct, but recommended a sanction of indefinite suspension, which was adopted by the Board. Rieser objected to the Board’s recommended sanction, and both Rieser and the Relator urged the Court to adopt the parties’ agreement. The Court reviewed its precedent in other cases involving a previously disciplined attorney, charges of excessive fees, mismanagement of client trust funds and failure to inform his client that he did not carry malpractice insurance. The Court determined that the mitigating factors made this case closer to others involving a suspension for a definite term, and it sustained Rieser’s objections. It suspended Rieser for two years, with the second year stayed on conditions and ordered Rieser to pay restitution of the $50,000 he had in his trust account to the client.

5. Disciplinary Counsel v. Harter, Op. No.. 2018-Ohio-3899, Decided Sept. 27, 2018. (Misappropriation of client funds; failure to cooperate; disbarment). Brian Wade Harter of Delaware was charged by Disciplinary Counsel with violations involving five clients. The charges included allegations that Harter misappropriated client funds, revealed confidential client information, failed to deposit and account for client funds in a trust account, failed to reasonably communicate with clients and was dishonest and failed to cooperate during Relator’s investigation of these charges. The parties entered into stipulations and the matter was tried to a panel of the Board. The panel found violations of all but two of the 28 violations charged and recommended permanent disbarment. The Board agreed and recommended disbarment to the Court. The Court went through the details of Harter’s conduct with each of the five clients. It found that he misappropriated and failed to account for funds, that he lied repeatedly

10 | Columbus Bar L aw yers Quarterly Winter 2019

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throughout his depositions and the hearing and that he failed to cooperate during Relator’s investigation of the case. The Court found that the normal sanction for misappropriating funds is disbarment, and the aggravating factors in this case, including Harter’s prior disciplinary record, required no less a sanction. Harter was permanently disbarred and ordered to make restitution to his clients.

6. Disciplinary Counsel v. Bennett, Op. No. 2018-Ohio-3973, Decided Oct. 2, 2018. (Failure to provide competent representation; non-refundable fees; dishonesty; one-year suspension). In 2010, Clyde Bennett II of Cincinnati was indefinitely suspended from the practice of law based on a felony conviction for intentionally structuring financial transactions to avoid federal reporting requirements for transactions in excess of $10,000. He was reinstated in 2011. In this case, Disciplinary Counsel charged Bennett with multiple violations in his representation of John Kelly, a convicted felon, related to post-conviction relief. Bennett agreed to represent Kelly on appeal for

a flat fee of $5,000. The fee was not paid by the time the 45-day period for direct appeal to the Supreme Court had expired, and Bennett did not file the appeal. After receiving additional funds from Kelly and his family, Bennett filed a Motion for Delayed Appeal. The motion represented that Bennett had only recently been retained to represent Kelly but failed to disclose the background on his talks with Kelly’s family. When the Supreme Court denied the motion, Bennett informed the Kelly family that his representation was now at an end. Kelly retained new counsel. The Supreme Court again denied a Motion for Delayed Appeal, and a federal court dismissed Kelly’s habeas corpus petition on other grounds. The Board charged Bennett with four counts that included failure to provide competent representation, failure to keep a client reasonably informed, advising a client that the fee was earned upon receipt and was nonrefundable and conduct involving dishonesty, fraud, deceit or misrepresentation. A panel of the Board found that Bennett committed all violations charged and recommended that Bennett be suspended for six months. The Board accepted the panel’s findings and recommended a six-month suspension. The Court disagreed, finding that Bennett’s prior suspension involved a felony conviction and dishonest conduct,

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and that a mere four years later he was found to have committed new violations that also involved dishonesty and misrepresentation. The Court concluded that a more severe sanction was warranted and suspended Bennett for one year.

7. Trumbull County Bar Association v. Large, Op. No. 2018-Ohio-4074, Decided Oct. 11, 2018. (Neglect of client matters; dishonesty; multiple discipline matters; disbarment). John Harold Large of Warren was previously disciplined for misconduct, once in 2009 for failing to file income tax returns for several years and again in 2012 for neglecting matters for three clients. In this complaint, Relator charged Large with neglecting matters for two clients. Large denied the charges and the matter went to hearing before a panel of the Board. As to one of the clients, the panel found that Large failed to act with reasonable diligence and failed to communicate with his client. As to the other client, the panel found that Large failed to inform and consult with the client and that he brought a frivolous action. The panel recommended an indefinite suspension, but the Board, based on recent precedent of the Court, recommended permanent disbarment. The Court agreed with the Board and found that Large’s prior discipline was for similar types of misconduct. It also found that Large displayed a dishonest or selfish motive by failing to notify his clients of adverse developments, he engaged in a pattern of misconduct that harmed his clients and he refused to acknowledge the wrongful nature of his conduct. The Court found no mitigating circumstances and ordered that Large be permanently disbarred and make restitution for the losses caused by his conduct.

8. Cleveland Metropolitan Bar Association v. Moody, Op. No. 4071, Decided Oct. 11, 2018. (Failure to act diligently; failure to comply with discovery; advice to client to lie; indefinite suspension). Steven Jerome Moody of Cleveland was charged with multiple violations stemming from his representation of his client, Elton Barrios, in an employment discrimination case against Barrios’ former employer, PNC, Inc. PNC was represented by counsel from Boston, MA, who removed the case to federal court in the Northern District of Ohio. PNC’s counsel served discovery requests and a notice of deposition

on Moody, who failed to pass on the requests to Barrios and failed to respond to discovery. When PNC’s counsel came to Cleveland to take Barrios’ deposition, neither Barrios nor Moody appeared. PNC brought a motion to compel, and after a conference with a magistrate, Barrios was ordered to respond to discovery and appear for a deposition. In preparation for his deposition, Barrios secretly recorded Moody, who disclosed that he had intentionally avoided PNC’s discovery requests and failed to show at the scheduled deposition. He also advised Barrios to lie and say that he was aware of the scheduled deposition. The Board charged Moody with allegations that he failed to act with reasonable diligence, failed to keep his client reasonably informed, intentionally failed to comply with reasonable discovery requests, knowingly made false statements to opposing counsel and a tribunal and advised his client to give false deposition testimony. A panel found that Moody committed misconduct and recommended that he be suspended indefinitely. The Board agreed and recommended that the Court indefinitely suspend him. Moody objected to the recommended sanction saying that the Board failed to weigh the evidence properly and that an indefinite suspension was unwarranted. The Court overruled Moody’s objections and found that his conduct raised questions about his integrity and his ability to conduct himself in a manner that engenders respect for the law and the profession. The Court ordered that Moody be indefinitely suspended.

9. Disciplinary Counsel v. Turner, Op. No. 2018Ohio-4202, Decided Oct. 18, 2018. (Failure to act diligently; sexual relationship with client; mismanagement of IOLTA; two-year suspension with six months stayed). Trent Reynard Turner of Columbus was charged with misconduct, engaging in a sexual relationship with a client and misusing his client trust account. The parties stipulated to the facts and misconduct, but did not agree on a sanction. The Board found that Turner committed misconduct and recommended a two-year suspension with the last six months stayed. The facts involved a client who retained Turner to seek a judicial release of a prisoner. Turner delayed filing the motion, did not return phone calls from the client and ultimately filed the same motion that was previously filed by another attorney. Turner failed to inform the client when the Court denied the motion. Turner also represented

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the same client in a civil matter. After a hearing in the matter, Turner invited the client to his home, where they had consensual sex. Turner did not have a personal bank account and did not deposit this client’s retainer in his trust account. He used his trust account to pay personal expenses. The violations charged included failure to act with reasonable diligence, failure to keep a client reasonably informed, engaging in a sexual relationship with a client, failure to refund an unearned fee, engaging in conduct that involved dishonesty, fraud, deceit or misrepresentation and improper recordkeeping and management of his client trust account. The Court reviewed aggravating and mitigating circumstances, including the sexual relationship with the client. It determined that the public was adequately served with the sanction recommended by the Board. Turner was suspended for two years, with the last six months stayed, on the condition that he attend AA meetings, complete his contract with OLAP, take additional CLE in law office management, make restitution to the client of the fee paid and, upon reinstatement, submit to a twoyear monitored probation.

10. Disciplinary Counsel v. Holmes and Kerr, Op. No. 2018-Ohio-4308, Decided Oct. 25, 2018. (Breach of client confidentiality; 6-month stayed suspensions). Thomas Charles Holmes and Ashleigh Brie Kerr, both of Aurora, Ohio, were charged with ethical violations for improperly disclosing confidential client information. They met at a conference in 2014 and began a personal relationship. They both practiced in the same area of law, representing public school

districts. Over the course of the next two years they exchanged more than a dozen emails in which they disclosed confidential client information. They were not in the same law firm, did not jointly represent the clients and the disclosures were not authorized by the clients. In some cases, Holmes completed Kerr’s work for her clients. In June 2016, Holmes’ law partners discovered that he had been sending confidential information to Kerr. They removed Holmes from the firm and filed a grievance against him with Disciplinary Counsel. The lawyer for Holmes’ firm notified Kerr’s employer of the situation, and she admitted what had been going on. Notwithstanding this admission, Kerr continued to send Holmes confidential client information, and he continued to assist her in preparing documents. Several months later, Kerr resigned from her law firm. The parties stipulated to the misconduct, breaching client confidentiality and conduct that adversely reflects on the lawyer’s fitness to practice. The parties also reached consent-to-discipline agreements which called for stayed six-month suspensions. The Board recommended that the Court approve the agreements. The Court reviewed other cases involving a breach of client confidentiality. It concluded, based on the absence of harm to clients, the respondents’ cooperation and their clean records, that the recommended sanctions were appropriate. The Court issued stayed six-month suspensions to Holmes and Kerr on the condition that they engage in no further misconduct.

Nelson E. Genshaft, Esq.

Strip Hoppers Leithart McGrath & Terlecky Co., LPA neg@columbuslawyer.net

13 | Columbus Bar L aw yers Quarterly Winter 2019

Toxic v. Hostile

Workplaces: When Does It Cross the Line? BY ALEXIS V. PRESKAR Did you just endure a horrible holiday party? Get slighted on your bonus or promotion? Maybe the thought of staying at your job any longer makes you shudder in despair. If so, join the club. LinkedIn and Ask a Manager are filled with horror stories of co-workers, managers and workplaces gone awry (if you want to feel better about your job, read a few entries on AAM). When the conduct spreads from an isolated incident into the corporate culture, it’s often described as a “toxic” workplace. Toxic workplaces are marked by incivility, gossip, bullying and an overall lack of trust and transparency. But is a toxic workplace the same as a hostile one? The short answer is: it depends. Well, that’s the lawyerly answer. So, how to distinguish between a toxic workplace and a hostile one? For starters, one is legally actionable while the other is usually just a miserable place to work. In order to prove a claim, an employee must meet several elements.

First, the unlawful practice must be based on “race, color, religion, sex, military status, national origin, disability, age, or ancestry.”1 A situation with merely conflicting personalities without any basis in one of these protected categories is likely not actionable. Second, the conduct must be severe enough to affect the terms of employment.2 Some things courts consider include: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; and whether it unreasonably interferes with the employee’s work performance.3 Another related element is whether the conduct was welcome. This is judged on both a subjective — by the POV of the claimant — and objective — would a reasonable person find it objectionable — standard. Finally, the employer must know or should have known of the conduct and failed to take corrective action. Beyond the legal elements, employees also have to consider practical implications of bringing a claim for hostile work environment, or sometimes even reporting

an incident to HR. Do they need the job? Will reporting follow as a mark on their employment? Is company HR effective or simply a paper-pusher (or worse)? These questions are unfair, and no one should have to endure an abusive environment, but they are realistic considerations. Knowing this, here are some steps to take when faced with an unpleasant work environment:

Step 1: Document it. All too often, employment claims are recast as “disgruntled employee makes up reasons for getting fired/not getting a promotion/etc.” In order to combat this archetype, some of the best evidence is contemporaneous, written accounts of the events. Send yourself an email to and from a personal account (that way there’s no question about when it was written as compared to a handwritten diary) detailing the conduct: note who was present and what steps you took to report it, use exact words if possible and try to keep the tone factual. As bad as it sounds, imagine the email being read back to you in a deposition. It’s natural to be upset, but try to keep name-calling and emotional language out so there’s no later claim that you were simply “unhinged” or on a vendetta. Document events even if you’re not sure if you want to bring a claim; it’s better to have the evidence now than realize you need it later. Audio-recording conversations in a workplace may be done legally; however, it’s tricky and might not be worth it. Ohio is a one-party consent state (meaning only the recorder has to consent to the recording). But there are issues if people are discussing sensitive or confidential information, if another party is out of state (such as on a conference call) or depending on professional standards and obligations (like HIPAA and ethics rules).

Step 2: Report it. (In writing and in-person. But really in writing.) One of the requirements to prove a hostile work environment claim is that the employer has to know (or should have known) about the problem. It is paramount to follow the chain of command and report per company guidelines (and note when you did and who you spoke with). Most employers have a handbook which contains the structure of conflict resolution and discipline. If they don’t, they should, and the lack of one is a red flag that the operation may be questionable (or at least doing things on the cheap). Typically, employees are asked to resolve the situation among themselves, and then

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escalate up the chain to supervisors, HR and owners or final decision-makers. Good handbooks also note that this process can be suspended or skipped when the harassing or problematic party is the very party employees are advised to report to. Be thoughtful about how and when you report as well. Note any excuses given to explain a situation (“oh that’s just how Steve is; we don’t have the manpower or budget to fix this; we know there is a problem but cannot solve it”). Also note any past promises to address the problem and what the final resolution was – was the problematic employee written up or reprimanded? Does the punishment fall in line with the steps outlined in the handbook? And if internal reporting backfires, employees may also have a claim for retaliation.

Step 3: Remain as professional as possible.

You say, I am acting like an adult. And everyone around me is supposed to be an adult, maybe even a “fancy” adult with a serious title or real political pull. But they’re still giving me the silent treatment/harassing co-workers/ insert any other bad or unprofessional behavior. Still, don’t be petty. It is incredibly tempting to respond in kind, and, frankly, sometimes it might work in the short

15 | Columbus Bar L aw yers Quarterly Winter 2019

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term to deal with a bully. And this is not to say that all employees should play along and pretend nothing is wrong. If someone is being completely unreasonable, it can help to show management how their conduct affects the team. For example, “Since Samantha stopped speaking to me, I don’t know what my assignments are and I am afraid to ask given her past conduct.” If employers want to keep a problematic employee, let them understand the scope of that decision. But you do want to “take the high road” wherever possible, so there are no counter-allegations.

For employees, workplace claims are difficult to prove but oftentimes more difficult to endure. The best solution is typically finding a new job and quietly leaving the employer to deal with an imploding situation. 1

R.C. § 4112.02(A). See Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 176-77 (2000). See Chapa v. Genpak, LLC., 10th Dist. No. 12AP-466, 2014-Ohio-897, ¶ 34. 4 See Michael Housman and Dylan Minor, Toxic Employees, Harvard Business Review (November 2015), available at http://www.hbs.edu/faculty/Publication%20 Files/16-057_d45c0b4f-fa19-49de-8f1b-4b12fe054fea.pdf 5 Id. 2 3

Businesses shouldn’t relax just because their culture doesn’t tick all the boxes to be considered hostile, or consider it safe to “only” be toxic. Toxic culture results in disengaged employees, high turnover and lack of productivity. And in case that isn’t clear enough, all of those things mean lost money.4 Employers should have a handbook, enforce it and consider letting go of problematic employees – such as those who scare other employees off – as it actually costs less to fire a toxic, but productive employee than to keep them.5

Alexis V. Preskar, Esq.

Kohrman Jackson & Krantz LLP avp@kjk.com 16 | Columbus Bar L aw yers Quarterly Winter 2019

Upcoming Events

What’s Happening @ the Bar? For a complete list of events, CLE programs and meetings, visit www.cbalaw.org.

WINTER 2019

january

2019 MLK Symposium: A History of Hate The 7th Annual MLK Jr. Civil Rights Symposium examines how the 1st and 14th amendments deal with hate - particularly as it affects education, the LGBTQ community, and immigration. We’ll conclude the afternoon session with one man’s efforts to erase hate. This CLE will be presented in two parts— register for one or both!

february

Rock ‘n Bowl • 11:00am-2:30pm • Columbus Square Bowling Palace

february

Real Property Law Institute • 10 CLE Hours (3.0 Prof. Conduct)

february

Committees & Cocktails • 5:00-7:00pm @ the CBA

7-8 20

CBF is a presenting Sponsor for Rock ‘n Bowl 2019, with proceeds to benefit The Center for Family Safety and Healing at Nationwide Children’s Hospital. Teams can request a celebrity judge or magistrate to bowl with their team. A reception with the judges and magistrates begins at 11:00am

Sponsored by Dinsmore and Brewdog Full of cutting edge content, this CLE has everything the serious real property law practitioner needs to know to stay current - including smart contracts, the future of Airbnb, and more. Day 1 includes a cocktail/beer tasting event.

This free monthly event gives members from all committees and practice areas a chance to meet, network and make valuable business contacts in a casual, relaxed atmosphere. The CBA provides beer, wine, soft drinks and light hors d’oeuvres. RSVP to donna@cbalaw.org.

march

Columbus Bar Foundation and Association Gala

march

Committees & Cocktails • 5:00-7:00pm @ the CBA

COMMITTEES

and

COCKTA LS COLUMBUS BAR ASSOCIATION

This year’s Gala features the entertainment of The Cleveland Keys Dueling Pianos. This interactive, world-class dueling piano show will rock the house! Plus, we’ll have dinner, dancing and plenty of time to mingle with colleagues and friends. Proceeds from the Gala support the Columbus Bar Foundation’s programs and projects. This free monthly event gives members from all committees and practice areas a chance to meet, network and make valuable business contacts in a casual, relaxed atmosphere. The CBA provides beer, wine, soft drinks and light hors d’oeuvres. RSVP to donna@cbalaw.org.

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17 | Columbus Bar L aw yers Quarterly Winter 2019

Buy American and Hire American:

An Executive Order with Immigration Consequences BY Payam Yazdani The landscape of employment-based immigration in America shifted on April 18, 2017, when President Trump signed an executive order branded as “Buy American and Hire American.” The “Hire American” portion of the order aimed to raise wages and employment opportunity for American workers through rigorous enforcement of immigration laws and new policy making. The order directed the Secretaries of State, Labor and Homeland Security, as well as the Attorney General, to propose new rules and issue new guidance in the administration of the immigration system.

The order resulted in a new set of policies, issued by the Department of Homeland Security, Citizenship and Immigration Services. These new policies very quickly increased immigration processing times, excessive evidentiary requests and the cost associated with sponsoring foreign nationals for employment opportunities in the U.S. The changes were sudden, and they created a disruptive lack of clarity resulting in frustration for many immigration practitioners, U.S. trained foreign nationals looking for employment and the employers looking to fill the gap in their labor needs. Employers and their immigration attorneys suddenly found themselves in a new maze of bureaucracy, struggling to find ways to defend petitions that were previously deemed approvable.

18 | Columbus Bar L aw yers Quarterly Winter 2019

Without foreign workers, tech superstars such as Google, Apple, Netflix, Amazon and Uber would not benefit from the innovations that have led to their exponential growth, and the American workers would not benefit from the opportunities created for them by such success stories. Among the changes, a new policy by Citizenship and Immigration Services set forth that the agency would no longer give deference to its own prior adjudications. This means that a petition to extend a visa for a professional to continue to work at the same position, with the same requirements and same conditions as previously approved, could now be denied on the premise that the job or the professional cannot qualify for the visa.

Changes to the H-1B program started on March 31, 2017, shortly before the executive order was signed, when the Citizenship and Immigration Services issued a policy memorandum rescinding an earlier policy memorandum from 2000. The earlier memorandum had directed the adjudicators to consider that computer programmer and some other computerrelated occupations generally qualified as specialty occupations, meeting the requirements for H-1B visas.

Another major change specifically targeted adjudication of H-1B visa petitions, a critical component of the employment-based immigration process for collegeeducated foreign national professionals.

Immediately after the President’s executive order was implemented, following the submission of cap-subject H-1B petitions in 2017, a wave of notices challenging eligibility and requesting additional evidence were received by immigration practitioners. The notices primarily raised a few principal issues. One issue raised with some frequency, especially in relation to petitions for IT-related positions was that the proposed entrylevel position was not a specialty occupation and thus did not qualify for the visa. Another highlighted issue was that an entry-level wage for some entry-level positions were inappropriate given the complexity of the job duties.

H-1B visas are primarily granted to those seeking employment in a specialty occupation. The regulations define a specialty occupation as an occupation that requires theoretical and practical application of a body of highly-specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty. U.S. employers who seek to sponsor an H-1B worker must pay the higher of the prevailing wage for the occupation, and the actual wage paid to similarly employed workers. Employers must comply with the wage requirements to ensure that foreign workers are paid at a rate appropriate for the occupation, in an effort to protect the American workforce and prevent abuse. Congress has mandated that government wage surveys create four wage levels. The Department of Labor’s Prevailing Wage Determination Policy provides a step by-step procedure to guide employers through the mathematical calculation to arrive at the appropriate wage level for a specific occupation. A specialty occupation, meeting H-1B requirements, can be performed at any appropriate wage level, including an entry level for the specific occupation.

The notices ignored that an appropriate wage level is focused on the requirements for the position, rather than the complexity of the duties, and that specialty occupations include entry level positions. The Department of Labor’s Wage Guidance provides that wage determination should start from wage level one and commensurate with experience, education and skills required for the position. The instructions for calculating wage levels also set forth that the basic understanding that warrants a level one wage is any education or experience required for entry into the field.

19 | Columbus Bar L aw yers Quarterly Winter 2019

In fact, most professionals start their careers in entrylevel positions within their fields. For many occupations, entry into the occupation, compensated at an entrylevel wage or wage level one, requires many years of formal education in a specific field, recognized upon the attainment of a bachelorâ€™s degree or higher. As an example, a physician entering practice can be paid an entry-level wage, or wage level one, for the specific specialty. That corresponds to the requirements for entering the labor market, not the complexity of the duties. There is no inherent inconsistency between an entry-level position and a specialty occupation. The entry level does not detract from the years of formal education required to enter the field, does not change the character of the occupation and does not preclude a finding that the position is in a specialty occupation. Yet, these issues were raised by the agency, in an effort to implement the executive order, forcing practitioners to relitigate basic matters previously established. Many other changes followed, and, while the laws were not changed, the executive order significantly impacted the employment-based immigration process. This has had real life consequences for many. Suspension of premium processing adjudication, which guarantees a quick turnaround, and the extra requests and challenges have prolonged the adjudication process to a point that some recent graduates may need to temporarily stop working as their authorization to work lapses while their visa petitions remain pending. This burdens not only the workers and their families, but also the employers and the continuity of their business. While the executive order and the new regimen of immigration policymaking was marketed as a tool to protect the American workers, the data does not support that such changes are necessary. Data from the Bureau of Labor Statistics shows that in 2017, the unemployment rate in the professional and related occupations for which most H-1B petitions were filed was just 2.3 percent, while the overall national

unemployment rate was at 4.4 percent. Same data for 2016 shows a 2.5 percent unemployment rate for professional and related occupations, while the overall unemployment rate was at 4.9 percent. The Citizenship and Immigration Serviceâ€™s own data shows that average H-1B worker in 2017 earned over $92,000 per year, and nearly half of all H-1B workers earned well above $100,000 per year. It is evident that there are plenty of need for workers in specialty occupations, and to meet the need the employers are not importing cheap labor, as the common rhetoric claims. Although the number of filings still outweighs the number of available visas several times over, the uncertainly of the process and the extra burden created as a result of the recent changes may have contributed to a decrease in the number of cap-subject H-1B filings in 2018 compared to 2017. Still, the employmentbased visa process is extremely popular, and in most cases will yield successful results. And this is critical to the overall growth of employment opportunities in America. Without foreign workers, tech superstars such as Google, Apple, Netflix, Amazon and Uber would not benefit from the innovations that have led to their exponential growth, and the American workers would not benefit from the opportunities created for them by such success stories. The Buy American and Hire American executive order may have an attractive message, but its implementation is misguided as it undermines the very process that supports the growth of American industries.

Payam Yazdani, Esq.

Yazdani Law, LLC payam@yazdanilawfirm.com

20 | Columbus Bar L aw yers Quarterly Winter 2019

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21 | Columbus Bar L aw yers Quarterly Winter 2019

Paralegal Pointers

PACO Affiliations: Paralegal Opportunities

Local to National BY Brittany Hays and Callie Kessler More for less is the motto most people like to follow. The Paralegal Association of Central Ohio, known as PACO, maximizes this motto for their members by offering three association memberships for the price of one. In addition to the PACO membership, members become affiliated with the Columbus Bar Association and the National Federation of Paralegal Associations, or NFPA. These membership affiliations maximize the resources available to PACO members and create an opportunity for leadership within their community. A few PACO resources to pinpoint are the networking events throughout the year, opportunities for CLE credits and general membership meetings that can be attended in-person or from a live feed that is offered by Anderson’s Reporting Services, a PACO Sustaining Member. These events are ongoing through the year and are a great way for members to stay involved and network. The CBA associate membership for PACO members allows access to free legal research, numerous committees

that can be joined relative to paralegal’s employment area and many discount benefits which include insurance coverage, legal forms and other discounts tailored for the member’s needs.

t h e

The NFPA membership promotes a global presence for members and paralegal associations by monitoring legislation and case law, providing position statements for the legal community and working closely with the American Bar Association, the American Association for Paralegal Education and the International Paralegal Management Association. PACO is an association member of NFPA, which means that we are able to provide additional benefits to our members; this includes webinars, CLEs and the opportunity for PACO to have a NFPA primary and secondary representative presence at the national level. An NFPA representative gives local associations the opportunity to implement both the association’s and members’ views for an evergrowing legal field. Some duties of the NFPA primary and secondary representatives are to attend the Annual Joint Conference, Annual Convention and regional meetings.

Anyone who has successfully completed a paralegal program, be it a post baccalaureate or two-year degree, can say they are certified; however, being an NFPA-certified paralegal takes this process and education a step further. 22 | Columbus Bar L aw yers Quarterly Winter 2019

These particular meetings vary in discussion and agenda by need, but the main focuses are to: direct the promotion and advancement of the paralegal profession for the ongoing legal field; discuss any position statements that should be implemented for guidance in the legal profession; collaborate with other paralegal associations; and address any additions or revisions to the NFPA bylaws that may be needed. There are 47 paralegal associations within NFPA that participate in these meetings, which are divided into five regions across the United States. PACO is a member of Region III, which consists of 12 paralegal associations within Ohio, Kentucky, Georgia, Florida, Indiana and Tennessee. Our NFPA primary and secondary representative recently had the privilege to attend the annual convention in Seattle, Washington on Oct. 24-28, which was hosted by the Washington State Paralegal Association. The convention had 15 discussion and agenda topics to be reviewed. In addition to the topics, there were also new NFPA Board candidates presented to the policy floor for approval to the Board. The entire first day at the NFPA convention was dedicated to various educational CLE tracks offered throughout the day; these programs were related to certain practice areas such as immigration, litigation or ethics. The second day of the convention included regional meetings, culminating with the board meeting in the evening which all members and delegates were welcome to attend. The final two days of the convention was dedicated to the policy floor, with discussion and voting on the various policy topics presented to the delegates. NFPA has also established great opportunities for paralegals from the two paralegal certification exams that the association created, developed and adopted: the Paralegal CORE Competency Exam, or PCCE, and the Paralegal Advanced Competency Exam. The Paralegal CORE Competency Exam, or PACE, shows that the paralegal has mastered what they learned in school and is designed for those who are new or in the early years of their career. The test itself focuses on two areas: the paralegal practice and substantive areas of the law. Upon passing this exam, one is certified as a COREregistered paralegal.

the formal education requirements. Much of the subject matter is the same as that of the PCCE exam; however, it is organized differently. It is also a more advanced view of each subject matter, instead of the broad overview of the PCCE exam. The administration of client legal matters and the development of client legal matters are examples of the sections that have been added to the more advanced PACE test. Upon passing the PACE exam, a paralegal earns the designation of registered paralegal. NFPA utilizes these two credentialing exams as another tool to promote the profession of paralegals. Anyone who has successfully completed a paralegal program, be it a post baccalaureate or two-year degree, can say they are certified; however, being an NFPA-certified paralegal takes this process and education a step further. The criteria to take the certification exams are based on your formal education and professional experience as a working paralegal. These exams are voluntary and take a commitment of both time and money. Once credentialed through one of these exams, there are continuing education requirements that must be met every two years to maintain your certification. A registered paralegal must complete 12 hours (including one Ethics hour) of continuing education, whereas a CORE-registered paralegal must complete eight hours (including one Ethics hour). As the roles of paralegals continue to evolve, PACO, the CBA and the NFPA play an important part as they are dedicated to increasing the awareness of paralegal roles and their importance in the legal community.

If you are interested in becoming a PACO member, or have additional questions on the affiliations mentioned herein, feel free to reach out to PACOâ€™s NFPA Primary Representative, Brittany Hays or PACOâ€™s NFPA Secondary Representative, Callie Kessler. Brittany Hays

Central Ohio Primary Care Physicians Inc. bhays@copcp.com

Callie Kessler

Reminger Co., L.P.A. ckessler@reminger.com

The Paralegal Advanced Competency Exam is for those paralegals who are further along in their career and meet 23 | Columbus Bar L aw yers Quarterly Winter 2019

Points of Practice

Putting a Stop

to the “Drop and Swap”? Commercial Real Estate Loophole May Soon Close by ADAM R. Todd Selling real estate through a limited liability company currently has advantages. However, due to contemplated legislation in Ohio, the so-called “LLC Loophole” may soon close. When a county auditor accepts a conveyance statement for an arms-length sale of real property, it reassesses the property’s taxable value based upon the sale price. This typically results in increased property taxes. Ohio law also permits county auditors to charge conveyance fees on non-exempt real estate transfers. An Ohio county may charge up to $4.00 per $1,000 of the sale price. In high-dollar transactions, conveyance fees may be substantial. Ohio real estate investors discovered that using an LLC as an intermediary to transfer property allows them to avoid both: 1. An increase in property taxes due to reassessments based upon the sale price; and 2. Paying conveyance fees.

Here is how the LLC Loophole works. When a property owner transfers real property to an LLC he owns as a capital contribution and there is no exchange of money, the transfer may be exempt.1 The auditor does not collect a conveyance fee and there is no sale price on which to base a reassessment. With the above in mind, consider this example. John and Susan enter into a real estate purchase contract and agree that Susan will pay John $1 million to purchase John’s real property known as Blackacre. John forms a new LLC he calls Blackacre, LLC (a new entity ensures there are no existing liabilities, liens, judgments, etc.). John transfers Blackacre to Blackacre, LLC as a capital contribution. In other words, the property serves as his investment to provide value to the LLC. The transfer is exempt from the conveyance fee as John owns all of the membership interest in Blackacre LLC. The county auditor does not reassess the property’s tax value because no “sale” occurred. At the closing of John and Susan’s transaction, Susan pays John $1 million and John transfers all the membership interest in Blackacre, LLC to Susan. Susan now owns Blackacre through Blackacre, LLC. Many in the central Ohio area refer to the abovedescribed transaction as a “drop and swap.” (To most tax professionals, the term “drop and swap” actually refers to a 1031 exchange mechanism, where a real estate interest goes from an LLC or corporation to an individual and the individual trades that interest to avoid capital gains tax.) No matter how the transactions are labeled, they have cost Ohio counties countless dollars in lost conveyance fees and especially increased assessments. County auditors, school boards and other property tax funded organizations are keenly aware of the issue.

24 | Columbus Bar L aw yers Quarterly Winter 2019

When a county auditor accepts a conveyance statement for an arms-length sale of real property, it reassesses the property’s taxable value based upon the sale price. This typically results in increased property taxes. A proposed new bill seeks to change Ohio law, close the LLC loophole and put an end to the “dropping and swapping.” View the proposed bill and analysis by the Ohio Legislative Service Commission at https://www.scribd.com/document/370187443/LLCLoophole-LSC-Analysis-and-Bill. If passed, the new law would require parties who transfer property indirectly through an LLC to report the sale and pay conveyance fees just as the property transferred directly. Whether or not Ohio passes the present bill, the LLC loophole will likely face continued scrutiny. To clarify, the use of an LLC to transfer property is, at the time of this article, both legal and legitimate. Until Ohio law changes, parties need not pay a conveyance fee and most likely will avoid property tax reassessment when using the LLC Loophole. However, sellers, buyers and lenders funding these “drop and swap” transactions should pay attention to the proposed new bill and contact competent legal counsel when using the LLC Loophole to ensure they correctly complete all steps of the transaction. 1

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25 | Columbus Bar L aw yers Quarterly Winter 2019

Points of Practice

The Empty Chair Doesn’t Need to be an Empty Opportunity: Apportioning Fault to Immune Employers by Phillip M. Sarnowski This article considers the current status of Ohio case law on the ability of tortfeasors to seek an apportionment of liability to nonparty employers who are immune under Ohio’s workers’ compensation laws. In addition, this article examines the laws concerning allocation of fault to a non-party, whether a legally viable theory of liability is required for allocation of fault against non-party, the limited case law on this issue and the possibility of bringing a contribution claim against the non-party employer. The plain language of the applicable statutes allows for a jury to consider the fault of a non-party employer in a tort action, regardless of the immunity that the employer may enjoy. To be sure, there is a split of authority on this issue. However, the proper analysis coincides with the clear language and corresponding legislative intent, which explicitly allows for juries to apportion fault to non-party immune employers. Finally, Ohio’s workers’ compensation statutory framework forecloses any right

of contribution or indemnity from such non-party employers—whether or not that employer committed an intentional tort.

The ‘Empty Chair Defense’, generally Ohio Revised Code 2307.23 allows for the allocation of fault to anyone, whether or not they were named as parties to the cause of action. Specifically, the Code allows for an “Empty Chair Defense,” meaning the jury may consider the actions of a non-party and apportion fault to the “Empty Chair” accordingly. However, a defendant bears the burden of raising, proving and persuading the “Empty Chair Defense.” A defendant seeking this defense must “raise the ‘empty chair’ as an affirmative defense, present evidence regarding contributory fault and submit proposed jury instructions or interrogatories to the trial court regarding the liability of others.”1 The statute provides that any party may raise this defense “at any time before the trial of the action.” Conversely, this affirmative defense is not waived if it is omitted from the defendant’s initial answer.2

The plain language of the applicable statutes allows for a jury to consider the fault of a non-party employer in a tort action, regardless of the immunity that the employer may enjoy. To be sure, there is a split of authority on this issue. 26 | Columbus Bar L aw yers Quarterly Winter 2019

Rather, under state law, there must only be notice of the identity of the non-party and the defendant’s intention to present comparative fault evidence against the non-party.3

The plain language of the statutes is clear and must control

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There is no requirement that a legally viable theory of liability is required for a jury to allocate fault to a non-party under the broad definitions in the aforementioned statutes. Specifically, there is nothing in the wording of the statutes that forecloses a defendant from pursuing the “Empty Chair” defense against a non-party that enjoys immunity from liability.4 Read together, R.C. 2307.23 and 2307.011 cement this interpretation. First, R.C. 2307.23 sets out how the jury may allocate fault: “In determining the percentage of tortious conduct attributable to a party in a tort action ... the jury in a jury action shall return a general verdict accompanied by answers to interrogatories, that shall specify all of the following: (1) The percentage of tortious conduct that proximately caused the injury or loss to person or property or the wrongful death that is attributable to the plaintiff and to each party to the tort action from whom the plaintiff seeks recovery in this action; (2) The percentage of tortious conduct that proximately caused the injury or loss to person or property or the wrongful death that is attributable to each person from whom the plaintiff does not seek recovery in this action.” Second, R.C. 2301.011 defines “whom the plaintiff does not seek recovery in this action,” used in R.C. 2307.23(A) (2) above, as follows: “(1) Persons who have entered into a settlement agreement with the plaintiff; (2) Persons whom the plaintiff has dismissed from the tort action without prejudice; (3) Persons whom the plaintiff has dismissed from the tort action with prejudice;

Rebekah Smith CPA, CFF, CVA, MAFF Director of Forensic & Dispute Advisory Services rsmith@gbq.com

Keith Hock CPA, CFF, MAFF, CVA Director of Forensic & Dispute Advisory Services khock@gbq.com

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(4) Persons who are not a party to the tort action whether or not that person was or could have been a party to the tort action if the name of the person has been disclosed prior to trial.” Finally, “Persons” as used throughout this section refers to “an individual, corporation, business trust, estate, trust, partnership, and association.”5 Under the plain language of the statutes, there are no restrictions or requirements for the consideration of a non-party person, corporation or other entity other than the discovery and disclosure of the non-party’s name prior to trial. Accordingly, an immune non-party is available for consideration during the allocation of fault deliberations. Despite the seemingly clear-cut statute’s language detailed above, there are two combating Courts of Appeals in Ohio that take up the issue of whether an employer, who enjoys negligence immunity, may be considered in the allocation of fault deliberations.

27 | Columbus Bar L aw yers Quarterly Winter 2019

First, Romig v. Baker Hi-Way Express, Inc., 2012-Ohio321 stands for the proposition that employers may not be considered in the allocation of fault under R.C. 2703.23 because the use of the “Empty Chair” defense against an employer conflicts with, and frustrates, the policy rationale behind the Workers’ Compensation system.6 There, the Fifth District Court of Appeals discovered the apparent contradiction between these two statutes: “[i]t appears there is no way to reconcile R.C. 2307.23’s failure to exclude employer negligence with the present Workers’ Compensation statutes.”7 The court then tries to determine which statute prevails over the other by citing the correct standards (R.C. 1.51, 1.52) but neglects to apply those very same tests.8 The court focuses on the lawmakers’ intention that the workers’ compensation system is the sole remedy for an employee’s workplace injury, despite the absence of any argument to the contrary. Neither party in the litigation sought a remedy from the employer in Romig. Rather, the defendant merely sought the inclusion of the employer in the allocation of fault deliberations—not a monetary award against the employer. This distinction separates the court’s flawed analysis in Romig from that of its rival cases: Fisher v. Beazer E., Inc., 8th Dist. Cuyahoga No. 99662, 2013-Ohio5251; Root v. Stahl Scott Fetzer Co., 8th Dist. No. 104172, 2017-Ohio-8398, 88 N.E.3d 980; Jester v. Utilimap Corp., 1st Dist. Hamilton No. C-170576, 2018-Ohio-4755. The second case that analyzes this issue (Fisher v. Beazer E., Inc.) held that the statutes’ language is clear

and direct, controlling the outcome. The Eighth District Court of Appeals focused on the absence of any employer exceptions in the allocation of fault statutes, despite the ease with which one could have been included.9 Moreover, the court highlighted the legislator’s definition of “[p]ersons from whom the plaintiff does not seek recovery in this action” described above, which includes the ability to consider a non-party “whether or not that person was or could have been a party.”10 The court held that the jury may properly consider a plaintiff’s employers’ tortious conduct in their apportionment of liability, regardless of their immunity to any award arising therefrom. The third case (Root v. Stahl Scott Fetzer Co., 8th Dist. No. 104172, 2017-Ohio-8398, 88 N.E.3d 980) comes from the Eighth District Court of Appeals as well. Not surprisingly, the court affirms itself and parrots the analysis of Fisher.11 Additionally, the court recognized the split in authority between the Eighth District and the Fifth District, but the Root court stressed the clear language of the law: “[t] he statute is unambiguous that all persons, whether recoverable or not, are included in the allocation under R.C. 2307.23. Accordingly, we do not agree with the Fifth District’s inability to reconcile R.C. 2307.23 and 4123.74.”12 The Root court conclusively held non-party employers may be attributed fault by the jury under R.C. 2307.23. The fourth case comes from the First District Court of Appeals.13 There, the Court not only held that a jury should consider an employer’s negligence when apportioning fault, but it held that a court’s failure to allow

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such consideration will result in reversable error.14 Moreover, the Court specifically discarded Romig and aligned itself with the Eighth District’s Fisher and Root holdings.15 Indeed, the Court held “a defendant can raise the empty-chair defense with respect to an injured’s employer under R.C. 2307.23, and a jury can apportion fault to that employer under R.C. 2307.23, even if that employer is entitled to immunity under workers’ compensation statutes.”16 Despite the clear ability to include employers in the jury’s allocation of liability or fault under the language of the statutes, the practical effect may be minimal. If a non-employer defendant is assigned more than fifty percent at fault for the plaintiff’s injuries, then he will be held jointly and severally liable for all of plaintiff’s economic damages. The jointly and severally liable defendant is barred from seeking contribution from the non-party employer for the non-party employer’s share of the economic damages. The non-economic damages portion of an award that is apportioned to the non-party employer will be wholly unrecoverable by the plaintiff— from both the party defendant17 and the non-party employer.18 As a result, the Empty Chair Defense is a worthwhile affirmative defense in many circumstances based on potential non-economic damages alone. On the other hand, if the employer committed an intentional tort, then no immunity applies.19 However, an injured plaintiff is the only party that may raise, plead or prove an employer’s intentional tort. In Romig, the court analyzed other instances in which defendants attempted to bring an intentional tort claim against the plaintiff’s employer after a finding of liability against the defendants. However, in each instance, and in the one before it, the court agreed that “[a] third-party tortfeasor has no standing to bring an indemnification claim against an employer, acting in compliance with the Ohio workers’ compensation law, for damages suffered by an employee in the course of or arising out of his employment.”20 As discussed above, the Fisher, Root, and Jester analyses are sound. R.C. 2307.23 was enacted after 4123.74 and fails to make mention of the very likely scenario presented in the Romig, Fisher, Root, and Jester cases. Rather, the clear wording of the statute should control, just as it did in Fisher, Root, and Jester.

Still, defendants may be left holding the bag. Unless the jury apportions over 50 percent of fault to the nonparty employer, the defendant will still be on the hook for 100 percent of the plaintiff’s economic damages in addition to the defendant’s proportionate share of the plaintiff’s non-economic damages. The inverse is also true; a plaintiff risks incomplete recovery—of primarily non-economic damages, but also possibly economic damages as well—when a defendant seeks apportionment under the Empty Chair Defense, creating value for defendants during pre- and post-trial negotiations. 1

See Fisher v. Beazer E., Inc., 8th Dist. Cuyahoga No. 99662, 2013-Ohio-5251. See Simpson v. Stieber Bros., 6th Dist. Huron No. H-12-012, 2013-Ohio-4089, ¶ 24. 3 Id.; Simpkins v. Grace Brethren Church of Delaware, 5th Dist. No. 13 CAE 10 0073, 2014-Ohio-3465, 16 N.E.3d 687, ¶ 55, rev’d on other grounds, 149 Ohio St.3d 307, 2016-Ohio-8118 (2016); But see Express Energy Services Operating, L.P. v. Hall Drilling, LLC, S.D. Ohio No. 2:14-CV-204, 2015 WL 3743795, 5–6 (holding, under the Federal Rules of Civil Procedure, the failure to plead the affirmative defense until after the discovery deadline was prejudicial to the plaintiff and was, therefore, waived). 4 See R.C. 2307.23; 2301.011; Fisher, 2013-Ohio-5251, ¶ 37 (holding R.C. 2307.23 does not “exclude any party who may be entitled to immunity or who otherwise could not be made a party.”). 5 See R.C. 1.59(C). 6 See 5th Dist. Tuscarawas No. 2011AP-02-0008, 2012-Ohio-321, ¶ 46. 7 Id. at ¶ 37. 8 The court notes, “If statutes enacted at the same time or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.” Id. at ¶ 40 (quoting R.C. 1.52) (emphasis added). Yet, the court failed to apply this test or discuss the enactment dates of either statute. Rather, the court moved on to the constitution to discuss policy rationales. If the court were to inquire, it would have discovered R.C. 2703 was enacted ten years after 4123, showing an awareness and clear intention of the legislators to omit any mention of an employer exception to the allocation of fault statute. 9 Id. at ¶ 37. 10 The court mistakenly cites section (J) in its opinion for the definition contained in section (G) of the statute. 11 Id. at ¶ 80. 12 Id. 13 Jester v. Utilimap Corp., 1st Dist. Hamilton No. C-170576, 2018-Ohio-4755. 14 Id. at ¶ 41. 15 Id. at ¶ 28. 16 Id. at ¶ 41. 17 Under R.C. 2307.22(B), which states “[i]n a tort action in which the trier of fact determines that two or more persons proximately caused the same injury or loss to person or property or the same wrongful death, each defendant who is determined by the trier of fact to be legally responsible for the same injury or loss to person or property or for the same wrongful death shall be liable to the plaintiff only for that defendant’s proportionate share of the compensatory damages that represent noneconomic loss.” 18 Under R.C. 4123.74, which states “[e]mployers . . . shall not be liable to respond in damages at common law or by statute for any injury . . . received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition . . . .” 19 See, e.g., Conley v. Brown Corp. of Waverly, 82 Ohio St.3d 470, 1998-Ohio-194, 696 N.E.2d 1035 (1998); R.C. 2745.01(A). “In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee . . . the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.” R.C. 2745.01(A). 20 Id. at ¶ 49; See also Conley v. Brown Corp. of Waverly, 82 Ohio St.3d 470, 1998-Ohio-194, 696 N.E.2d 1035 (1998). 2

Phillip M. Sarnowski, Esq.

Collins, Roche, Utley & Garner LLC psarnowski@cruglaw.com

29 | Columbus Bar L aw yers Quarterly Winter 2019

Points of Practice

The Four Cs of the

“Limited Guardianship for Mental Health Care Purposes”: Confidentiality, Cooperation, Control and Compliance by Phillip Fierst Although there is nothing new about limited guardianships, the Franklin County Probate Court, under the leadership of Judge Robert Montgomery, has developed a new category of guardianship: a limited guardianship for mental health care purposes only. This new type of guardianship, while currently exclusive to Franklin County, could soon become a model for other counties throughout the state. Revised Code §2111.02 sets the framework around which this new type of guardianship was created. Subsection (B)(1) states that a probate court “may appoint…a limited guardian with specific limited powers.” The Ohio Guardianship Guide defines a limited guardianship as one set for a “short time or specific purpose.” In addition, the Guide states that the “ward retains full control over all other aspects of his life” and over “powers not granted to the guardian.” The Franklin County Probate Court elaborated on subsection (B)(1) to create a standardized form of limited guardianship in Franklin County with certain defining characteristics. A limited guardianship for mental health care purposes differs from more traditional categories of guardianship in that the guardian cannot make living arrangements and non-mental health care medical decisions for the ward (as with a guardianship of a person). In addition, the guardian cannot make decisions concerning the ward’s finances (as with a guardianship of the

estate). The guardianship is limited to the mental health care treatment of the ward and, as such, is defined as “a Court ordered guardianship with specific powers limited to the mental health care treatment of a person pursuant to R.C. 2111.02(B)(1).”1

Confidentiality:

Arguably, the most significant feature of this new type of guardianship is that the court records concerning the proceedings can become confidential. This differs from person, estate and other types of guardianships, which are typically public information. An “Application to Limit Public Record Access and Make File Confidential” is included in the limited guardianship application available through the Franklin County Probate Court. The reasoning behind the creation of a new category of guardianship containing categorical confidentiality is “to ensure the Prospective Ward receives proper medical treatment, including proper mental health care and treatment, while remaining a productive member of the community.”2 There is valid concern among guardians and wards alike that public knowledge of a ward’s mental health diagnosis, treatment and even of the existence of a guardianship can lead to stigmatization of the ward, or even jeopardize the career or education of the ward. Franklin County helps facilitate continued success in the ward’s career and education, preventing such stigmatization by allowing the court files for this type of guardianship to remain private during the time the mental health case is active.

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There is valid concern among guardians and wards alike that public knowledge of a ward’s mental health diagnosis, treatment and even of the existence of a guardianship can lead to stigmatization of the ward, or even jeopardize the career or education of the ward. Cooperation:

Another objective of this new type of guardianship is that it facilitates cooperation between the proposed ward and guardian applicant. This new type of guardianship is directed toward parents who wish to “stay involved in their children’s mental health care needs after they turn 18.”3 However, children transitioning to adulthood may have difficulty accepting their parents’ continued care and may feel resentful that they are still being treated as children and not as adults. The proposed ward may feel embarrassed and the relationship could become combative. This new type of guardianship allows for cooperation between the ward and guardian because the ward becomes responsible for their own financial affairs, housing decisions and non-mental health care-related medical decisions. Much of the opposition to the establishment of a guardianship comes from a fear

that the ward will not be in control of their own finances, or that their estate will be abused or misappropriated. This new type of guardianship helps to allay those fears, because the guardian applicant does not handle the finances of the ward.

Control:

Another feature of this type of limited guardianship is that the ward retains control over all areas of their life not affected by mental health care. R.C. §2111.02(B) (1) states that “An incompetent or minor for whom a limited guardian has been appointed retains all of the incompetent’s or minor’s rights in all areas not affected by the court order appointing the limited guardian.” The ward retains decision-making power with regard to housing placement decisions, non-mental healthcarerelated medical decisions and financial decisions. All of these help foster a sense of confidence for the ward because they maintain a very significant level of decision-making power.

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Compliance:

The last significant feature of this new type of guardianship is that the guardian retains the ability to help ensure that the ward will comply with their mental health care treatment. This newest type of limited guardianship “only comes into effect when parents are dealing with the mental health care needs of their child…”4 This new type of guardianship is targeted to those who have a history of noncompliance with their mental health care treatment plans. And, although the guardian would have the power to direct every aspect of the ward’s mental health care treatment, hypothetically the only time that the guardian would need to act on this power is when the ward no longer complies with their mental health care treatment plan. Therefore, even in this area in which the ward technically loses control, they may in essence be gaining some control because they could still help direct their own day-to-day mental health care treatment with the guardianship in place as a safeguard. This type of limited guardianship will help ensure that a ward with a history of episodic non-compliance will receive needed treatment before it’s too late.

If you are considering establishing a guardianship for someone, a good candidate for this new type of limited guardianship would be someone who may still need assistance and support to comply with their mental health treatment plan, but who is mostly capable of maintaining their own life, including housing, financial and non-mental health care related medical decisions. By creating this new category of guardianship, Judge Montgomery has helped ensure that “children [will] make a successful transition into their next phase of life without putting them under the burdens or confines of a full Guardianship.”5 1

See Franklin County Form LG-17.1A–Limited Guardianship–Statement of Expert Evaluation 2 See Franklin County Form LG-15.10–Application to Limit Public Record Access and Make File Confidential 3 See “Judge Montgomery Develops New Guardianship Program to Help Parents Address Mental Health Needs with Children.” Article available through the Franklin County Probate Court website at https://probate.franklincountyohio.gov/ news/2018/judge-montgomery-develops-new-guardianship-program 4 Id. 5 Id.

Phillip Fierst, Esq. Fierst Law Office

32 | Columbus Bar L aw yers Quarterly Winter 2019

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Points of Practice

A Deep Divide: How Executive Order 13769 Changed Immigration Law BY Mazen Rasoul

Jan. 20, 2019, will mark the second anniversary of my private law practice. My office opened its doors on a historic, and deeply divisive, day—the day of President Trump’s inauguration. Like most Americans, it was difficult for me to comprehend how Trump could be our new president. I was certain that his term in office would be challenging for so many in the United States and around the world. I was also certain that my clients, friends, family and community would become a target of Trump’s new administration. These certainties compelled me to open my new practice and to serve those in communities that were hit hardest by Trump’s pledged agenda. My intuition was correct. After just seven days in office, Trump signed an executive order with the first version of his Muslim ban. This executive order attempted to prohibit immigrants from seven Muslimmajority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) from entering the United States.

This ban directly impacted many of my clients. The first iteration of the ban was, for the most part, held unenforceable due to the hard work of attorneys and activists across the country who immediately challenged the executive order. However, the practice of immigration law has still changed dramatically during Trump’s presidency. While the actual laws and regulations remain the same, the enforcement and interpretation of the laws have changed. This lack of consistency resulted in neither immigration attorneys nor immigration officers knowing how the law will be applied. It is difficult for immigration attorneys to provide clients with clear answers to many of their pressing concerns. This uncertainty is compounded by the introduction of new requirements in the immigration process. For example, a new form, known as Form DS-5535 (Supplemental Questions for Visa Applicants), was introduced as a method to comply with the President’s demand for what he called “extreme vetting” of most immigrants. The form asks for the following:

34 | Columbus Bar L aw yers Quarterly Winter 2019

1. Travel history during the last 15 years, including the source of funding for travel 2. Address history and employment history during the last 15 years 3. All passport numbers and country of issuance held by the applicant (even expired or lost passports) 4. Names and dates of birth for all siblings 5. Social media platforms and identifiers, also known as handles, used during the last 15 years 6. Phone numbers and email addresses used during the last 15 years Traditionally, the Department of State and U.S. Citizenship and Immigration Services asked for most of this information, but only for the prior five years. This new form expands the timeframe to 15 years. Once this form is requested by the Consular Officer (at the embassy handling the case), the applicant must complete it and return it to the embassy. Most embassies are refusing to accept delivery of this document in person from applicants at their interviews, and insist on email delivery.

Our immigration system is, in large part, based on promoting unification of families. However, the current policies significantly inhibit the unification process. Further complicating the process, even if an applicant can find and provide all the information requested, applications are often subjected to “Administrative Processing.” This additional processing can drag on for months, or even years, without the applicant receiving a decision on their case. Our immigration system is, in large part, based on promoting unification of families. However, the current policies significantly inhibit the unification process. Applying for a spouse, fiancé, child or parent is an unnecessarily exhaustive process. Traditionally, it took five to eight months to bring your fiancé to the country from abroad. Nowadays, it can exceed a year, and sometimes even much longer. Another area of immediate concern is the immigration court system. The immigration court system has been flawed for a long time, but under President Trump’s administration, the problems have become greatly exacerbated. Immigration courts are controlled by the Department of Justice. For the past two years, now-former Attorney General Jeff Sessions wielded his incredible power over immigration courts in unprecedented ways. He plucked cases from the courts to decide himself, he emphasized quantity over quality in performance reviews and, as of Oct. 1, even imposed case-closing quotas on

immigration judges. Even after the resignation of AG Sessions, the DOJ will likely continue in the same direction. The new policies implemented in immigration courts are in no way resolving the backlog of cases in these courts or providing individuals with their right to due process. Judges are no longer able to terminate cases if a respondent has a readily-available relief they could seek, as they traditionally did. Releasing people on bond is extremely difficult and even impossible in some courts. Asylum seekers must meet a much higher standard of proof than the law requires. Hostility to immigrants is evident on all levels of the process. As an attorney, I see the harm these policies are causing American families. Everyone deserves a fair day in court. That’s why I am calling on members of Congress to support the creation of an independent immigration court system. Immigration cases are often life-or-death matters. The current application of the immigration laws is a grave and unacceptable injustice.

Mazen Rasoul, Esq.

Rasoul Law Office rasoul.esq@gmail.com

35 | Columbus Bar L aw yers Quarterly Winter 2019

Points of Practice

Four Things

Your Mediator

Wishes You Would Do BY SHAWN K. JUDGE

An extern who was about to observe his first mediation asked the judge whether he would be using a directive, facilitative, or transformative mediation approach. The judge stopped outside the mediation rooms.

He looked at his extern and said, “This is a mediation: the clients are going to lie to their attorneys, the attorneys are going to lie to me, and I’m going to go back and forth between these two rooms and lie to everyone. And at some point, if everyone agrees, we’re going to call it justice.”

36 | Columbus Bar L aw yers Quarterly Winter 2019

That was probably not the sage explanation of how academic theories of mediation play out in the trenches that the extern was expecting. Setting aside whether the judge was joking, the exchange raises the question “Wouldn’t you want to be like that extern and really learn what your mediator was thinking?” Of course you would. It would better enable you to tailor your arguments, craft your strategic moves, and serve your client’s interests.

Don’t fail to consider that there might be other, creative ways at arriving where you want to be. In treating every exchange as an opportunity to learn something, an opportunity to open a path to productive and reasoned discussion, you serve your client better. Here are four things from a mediator’s perspective that attorneys can do to enhance the chances of a successful mediation.

Be better prepared. Knowing your facts and the applicable law is just foundation-level preparation. Truly prepared attorneys are going to learn the context within which their cases exist. In one mediation involving claims against a federal government entity, plaintiff’s counsel treated the negotiation as if he were up against an insurance company. He insisted that there was always “one more call to make” for increased authority, ignoring the fact that when the home office in D.C. says, “This is your budget,” there is rarely much, if any, wiggle room. When asked by the government’s attorney for any verdicts that countered the government’s damages evaluation—which was based on multiple, reported settlements and verdicts of local cases—plaintiff’s counsel confessed he had not researched such data and had no idea what range existed. Next-level preparation would have enabled an informed ask and could have produced a settlement.

Teach reality. If point one can be summarized as prepare yourself, point two is prepare your client. Regardless of your client’s level of sophistication, you are the client’s rational shepherd through a process that can turn on anything from a purely business decision to a purely emotional decision. It is job one to prepare your client for the mediation: to discuss the process fully, define the various actors’ roles in that process, and manage client expectations before the mediation itself.

Inexplicably, clients often don’t understand that the mediator will not be rendering a decision in their mediation. Or they expect a trial. Or they have an unrealistic view of what is possible. In one mediation, the mediator pressed the plaintiffs’ side to explain the massive damages they were demanding. The clients pulled out a cell phone and held up a listing for a house they wanted to buy, which, not coincidentally, was listed for the exact amount of the demand. The ask was wholly disconnected from the actual damages. In the hallway, the attorney confided that he hoped the mediator could reset the clients’ bloated expectations because he

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wanted to maintain a positive relationship with them. It is understandable that sometimes a mediator needs to offer a neutral reality check. Less understandable is when attorneys complicate that task and set up a likely failure by not teaching clients about the realities they face.

Leave clever back at the office. Attorneys love to be clever. They are trained manipulators with dual degrees in objectivity and argumentation, ready to outwit, outthink, and outmaneuver opposing counsel with every exchange in the mediation. Or so some attorneys seem to think. The reality is that “clever” rarely works well. Refusing to make an initial demand because you don’t want to “bet against” yourself is silly; someone has to start, and in all fairness, it probably should be the party who decided to ask for money (or relief) in the first place. Similarly, refusing to make a counter because the numbers are so unrealistic does not advance the ball. Nor does retreating from a prior settlement discussion demand or offer; unless you give the other side specific and credible reasons for why your position has changed by necessity as of the day of mediation, all you’re likely to accomplish is wasting the first hour(s) while your mediator needlessly works to repair goodwill and reopen productive dialogue. Too many attorneys defend a litany of missteps by explaining how clever their strategy was. In contrast, when counsel is open and direct, a funny thing happens— often, the other side drops its posturing, too, and positive things start to happen.

Be the change. Mahatma Gandhi said, “Be the change you wish to see in the world.” That’s a tall order; for present purposes, perhaps scale that back to an easier “be the change” in your next mediation. Don’t just raise problems; offer solutions. Attorneys often fall into the trap of quashing potentially promising avenues of discussion by reacting emotionally, not strategically, to a disappointing proposal or communication from the other side. Or, they reflexively take a hardline approach against a hard-case opponent. Mirroring unproductive conduct is not demonstrating strength, and it often ratchets up the level of tension and client frustration. If you react negatively, you both validate the other side’s behavior and teach your client to react 38 | Columbus Bar L aw yers Quarterly Winter 2019

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negatively as well. You are also asking your mediator to be a carrier pigeon of spiraling bad news instead of a neutral presenting a path forward.

jerk, at least you’ll probably live longer by refusing to engage in hostile sideshows that only raise your blood pressure.

Don’t fail to consider that there might be other, creative ways at arriving where you want to be. In treating every exchange as an opportunity to learn something, an opportunity to open a path to productive and reasoned discussion, you serve your client better. If all this agentof-change rhetoric sounds too abstract or touchy-feely, simply think of it this way: model the behavior you want from your client and from the other side.

Finally, two bonus suggestions that speak for themselves. First, focus at all times on your client and the effect that the mediation is having on the client. Too many attorneys ignore their clients’ interests while fighting for their clients’ positions. Second, contrary to the judge’s model that began this article, never, absolutely never, lie to the mediator.

You can’t control what you receive from the other side, but you can control your specific reaction. Replace responding with tit-for-tat pettiness or with matching nonsense. Instead, look for the why behind the displeasing conduct and offer a response targeted at addressing the why: the concern underlying the conduct. How to resolve a dispute often falls into place when at least one of the parties recognizes whatever (often sub-textual) concern is motivating the other side. And the worst-case scenario is that even if the other attorney is simply an irredeemable

Shawn K. Judge, Esq.

Isaac Wiles Burkholder & Teetor, LLC sjudge@isaacwiles.com

39 | Columbus Bar L aw yers Quarterly Winter 2019

Winter ‘19: Education Law

Law Schools:

The Real Employment Numbers for the Law Class of 2017 BY jason m. dolin

When an Increase is a Decrease Nationally, 66.2 percent of the graduates of the law class of 20171 found full time, permanent, JD-required (hereafter referred to as FTPJD) jobs.2 That’s an increase over the 61.8 percent for 2016’s graduating class. This is good news, right? Wrong. It’s a phantom increase. A mirage. That’s because while the number of FTPJD jobs for 2017’s law graduates increased slightly from 2016 - an 80-job increase in a national graduating class of 34,922, equal to less than a one percent increase - the size of the graduating class shrank by 2,202 students (or 5.9 percent) from 37,124 in 2016 to 34,922 in 2017.3 In other words, the only reason that the FTPJD employment percentage increased in 2017 was because there were 2,202 fewer law graduates in 2017 than in 2016. The number of actual jobs available to graduates was flat from 2016 to 2017.

Ohio’s 2017 Employment Numbers Over the years, Ohio’s law schools have regularly trailed the national law school graduate employment rate. That remained true again for Ohio’s Law Class

of 2017, with the national FTPJD rate at 66.2 percent for 2017 law graduates vs. 61.4 percent for Ohio’s law graduates. Six of Ohio’s nine law schools had FTPJD employment rates lower than the national average. Ohio’s law graduate unemployment rate also continued to be worse than the national rate (9.7 to 7.9 percent nationally), and its rate of those employed in FTPJD private practice (40.2 percent) continued to trail the national rate (47.1 percent). In addition, 4.7 percent of Ohio’s 2017 law grads went into solo practice, versus a national rate of 1.3 percent. Higher rates of graduates entering solo practice straight out of law school are typically viewed as a negative employment indicator on the assumption that law graduates default to solo practice only if they are unable to find FTPJD employment with established organizations. There was, however, some good news for Ohio’s 2017 law graduates. While Ohio’s 2017 graduating class shrank 3.3 percent versus 2016’s, the number of FTPJD jobs landed by those 2017 graduates increased by 8.3 percent. In other words, Ohio’s law class of 2017 made real gains in their FTPJD employment rate. In addition, the law school loan debt burden decreased for Ohio’s 2017 graduates at six of Ohio’s nine law schools. Locally, Ohio State had the highest FTPJD rate of any school in the state (at 76.4 percent) and the

History has shown us time and again that law schools have increased tuition (and, correspondingly, student debt burdens) when they could, because they could. Ditto for class size. 40 | Columbus Bar L aw yers Quarterly Winter 2019

lowest unemployment rate (at 3 percent). Capital Law School’s FTPJD increased to 53.8 percent after five years of straight line decline. Capital’s unemployment rate, at 12 percent, was four times that of Ohio State’s.

Problems Ahead Despite those bits of positive news, there are storm clouds ahead for Ohio’s future law graduates, and there’s no reason to believe that their employment prospects will improve to a healthy level any time soon. Ohio’s Bureau of Labor Management Information, the section of the Department of Job and Family Services that tracks employment trends, projects that through 2026, new jobs for lawyers in Ohio will increase at an average annual rate of 1.1 percent.4 That’s less than half of the two to four percent GDP growth rate that economists generally consider healthy for the overall economy.5 Because lawyers operate in a service economy, one would expect that growth in legal employment would at least roughly track the general economy. But the projections for lawyer employment in Ohio say otherwise. Projections for 1.1 percent employment growth for Ohio’s lawyers look anemic when compared with the Federal Reserve’s projections for median GDP growth over the next several years of 3.1 percent for 2018, 2.5 percent for 2019, 2.0 percent for 2020, and 1.8 percent for 2021.6 A 1.1 percent

growth rate for Ohio’s lawyer market falls woefully below even the lowest of those projections. Altman Weil, a firm that provides management consulting to law firms in the U.S. and internationally, also projects weak future demand for lawyer services. In 2018, Altman Weil polled 801 U.S. law firms with 50 or more lawyers about demand for their services and future prospects for improvement. They reported the following: “The overall demand for legal services (billable hours) has decreased in the aggregate since the recession, and all of the dynamics that affect hours available to traditional law firms clearly indicate a continuing downward trend. Commoditization, new technology tools, and ‘non-traditional’ competitors are all permanent changes to a post-recession market. Demand for law firm services will not return to prerecession levels - ever.” Further, according to Altman and Weil: “As a result, there are too many lawyers in many law firms. Average billable hours have shrunk by hundreds of hours per attorney since before the recession and are unlikely to rebound unless the oversupply of lawyers decreases significantly.”7

41 | Columbus Bar L aw yers Quarterly Winter 2019

Total Employment Rate: Akron Total 2017 Graduates (“Grads”)

120

Toledo

Capital

Case Western

Dayton

Ohio Northern

Totals

120

75.7% 53/70

52.1% 61/117

76.4% 126/165

55.3% 42/76

53.8% 63/117

60.1% 83/138

50.0% 48/96

71.2% 37/52

61.4% 584/951

2016=71.2%

2016=53.0%

2016=56.7%

2016=49.4%

2016=48.6%

2016=54.8%

7.5% 9/120

15.7% 11/70

16.2% 19/117

3.0% 5/165

6.6% 5/76

12.0% 14/117

7.2% 10/138

14.6% 14/96

9.6% 5/52

9.7% 92/951

2016=8.1%

2016=6.7%

2016=12.0%

2016=1.0%

2016=9.0%

2016=10.0%

2016=7.0%

2016=9.8%

2016=9.7%

2016=7.5%

Toledo

Capital

Case Western

Dayton

Ohio Northern

Totals

% of total grads employed 59.2% in full-time/permanent/JD 71/120 required (“FTPJD”) jobsTHE REAL EMPLOYMENT RATE National Average = 66.2% 2016=46.8% [total grads/# of FTPDJ jobs] (2016=61.8%) % of grads unemployed at any job 10 months after graduation (both seeking and not seeking employment) National Average = 7.9% (seeking only)* (2016=8.8%)

Cincinnati Cleveland St. Ohio State

2016=76.5% 2016=36.4% 2016=37.8%

Private Law Practice: Akron

Cincinnati Cleveland St. Ohio State

% of 2017 Grads in FTPJD Private Law Practice

44.2% 53/120 2016=35.5%

41.4% 29/70 2016=41.3%

39.3% 46/117 2016=45.3%

42.4% 70/165 2016=44.1%

40.8% 31/76 2016=27.3%

38.5% 45/117 2016=35.3%

41.3% 57/138 2016=36.4%

31.3% 30/96 2016=39.5%

40.4% 21/52 2016=29.2%

40.2% 382/951 2016=38.0%

Of Grads in FTPJD Private Law Practice, % in Solo Practice

5.7% 3/53 2016=6.8%

3.4% 1/29 2016=0.0%

4.3% 2/46 2016=5.7%

1.4% 1/70 2016=2.5%

3.2% 1/31 2016=4.2%

15.6% 7/45 2016=14.3%

0.0% 0/57 2016=0.0%

0.0% 0/30 2016=3.1%

14.3% 3/21 2016=9.5%

4.7% 18/382 2016=4.8%

Of Grads in FTPJD Private Law Practice, % in firms of Solo through 25 Attorneys (small practice)

64.2% 34/53 2016=64.2%

55.2% 16/29 2016=51.2%

56.5% 26/46 2016=58.5%

38.6% 27/70 2016=40.5%

67.7% 21/31 2016=66.6%

73.3% 33/45 2016=80.9%

43.9% 25/57 2016=38.9%

80.0% 24/30 2016=81.3%

71.4% 15/21 2016=81.0

59.1% 221/382 2016=59.6%

Of Grads in FTPJD Private Law Practice, % in “mega” firms of 501+

1.9% 1/53 2016=2.3%

20.7% 6/29 2016=23.3%

6.5% 3/46 2016=3.8%

30.0% 21/70 2016=24.1%

0.0% 0/31 2016=4.2%

0.0% 0/45 2016=0.0%

15.8% 9/57 2016=22.2%

10.0% 3/30 2016=3.1%

4.8% 1/21 2016=4.8%

11.5% 44/382 2016=11.5%

Toledo

Capital

Case Western

Dayton

Ohio Northern

Law Graduate Debt: Akron

Cincinnati Cleveland St. Ohio State

Totals

% of 2017 Grads with at Least One Law School Loan**

73%

81%

75%

81%

89%

84%

74%

86%

88%

759/951= 79.8%

Total Law School Debt for the Class of 2017+

$6,218,960

$3,820,596

$7,459,232

$12,145,492

$5,550,568

$11,427,976

$8,612,472

$9,492,129

$4,329,474

$69,056,899

Average Amount Borrowed by 2017 Grads**

$70,670

$67,028

$84,764

$90,638

$81,626

$116,612

$84,436

$114,363

$94,119

Average Amount Borrowed by 2016 Grads

$82,854

$75,512

$83,484

$88,301

$85,649

$123,432

$102,370

$108,724

$104,284

% Increase/Decrease in Average Amount Borrowed of 2017 Grads vs. 2016 Grads

14.7% Decrease

11.2% Decrease

1.5% Increase

2.6% Increase

4.7% Decrease

5.5% Decrease

17.5% Decrease

5.2% Increase

9.7% Decrease

See ABA data at http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2017_law_graduate_employment_data.authcheckdam.pdf

* The national percentage includes only those who are unemployed and seeking employment. This chart includes those unemployed who are also not seeking and whose start dates have been deferred as well. ** This was obtained at https://data.lawschooltransparency.com/costs/debt/?scope=schools + Calculated by multiplying total graduates at each school by the percentage of total graduates at that school with at least one law school loan (from Law School Transparency data) to determine the number of 2017 graduates at each school with at least one law school loan. The product of that multiplication was then multiplied by the average debt per student from that school who had at least one law school loan.

42 | Columbus Bar L aw yers Quarterly Winter 2019

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Doing the Wrong Thing... Again In prior columns I’ve discussed the structural un(der) employment that has for years plagued Ohio’s entering legal employment market: a structural un(der) employment fostered by Ohio’s too many law schools which continue to produce too many graduates for the available FTPJD jobs.8 And indeed, with the percentage of FTPJD jobs seeming to increase, some Ohio law schools are at it again; sniffing more tuition dollars from larger entering classes. History has shown us time and again that law schools have increased tuition (and, correspondingly, student debt burdens) when they could, because they could. Ditto for class size. Indeed, Cleveland State’s Law School has already increased the size of its 2018 entering class by 30 percent.9 The market may be flooded with too many entry-level lawyers drowning in debt, but what matters for law schools is the bottom line. They get their tuition up front. Their graduates’ financial prospects? Well... best of luck with that, and please remember to give to our annual alumni campaign. Don’t expect a moral awakening from the admissions office. James Leipold, the executive director of the National Association of Law Placement, a national not-for-

profit that reports on law school employment results, recently pointed out that while the law school applicant pool might be increasing, the number of jobs for new lawyers will continue to decrease. According to Leipold, “We’re in a perilous moment. There is a pushpull between admission offices and the job market. [Increasing law school enrollment] would be the wrong thing to do.”10 We’ve seen this law school horror flick before. It doesn’t end well. 2017 is the most recent graduating law class for which full data is available. Data for the Class of 2018 will not be compiled until the Spring of 2019. 2 See https://www.americanbar.org/content/dam/aba/administrative/legal_education _and_admissions_to_the_bar/statistics/2017_law_graduate_employment_data.pdf 3 Id. 4 Data from BLMI on file with the author. 5 See https://www.thebalance.com/what-is-the-ideal-gdp-growth-rate-3306017 6 See https://www.federalreserve.gov/monetarypolicy/files/fomcprojtabl20180926.pdf 7 See http://www.altmanweil.com//dir_docs/resource/45F5B3DD-5889-4BA3-9D05C8F86CDB8223_document.pdf 8 See https://issuu.com/columbusbarlawyersquarterly/docs/fall2017cblqpages2/10 9 See https://abovethelaw.com/2018/08/first-year-enrollment-is-way-way-up-atsome-law-schools/ 10 See https://abovethelaw.com/2018/04/experts-say-the-future-of-law-school-islooking-bleak/ 1

Jason M. Dolin, Esq.

jmdolin@sbcglobal.net

43 | Columbus Bar L aw yers Quarterly Winter 2019

Winter ‘19: Education Law

Guarding the Schoolhouse Gate: Protecting Privacy Rights for Transgender Students by HANNAH L. BOTKIN-DOTY We all recall the Tinker v. Des Moines Supreme Court case from law school that found that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This precedent has been used to shield students from otherwise unconstitutional and invasive actions by schools and educators. Over the last decade, the discussion of support and acceptance of transgender students has come to the forefront, with debates over bathroom use, gendered curriculum, Title VII, sports teams and more. All have been up for debate while these children continue to pursue their own academic careers. Now, the Ohio House of Representatives is putting yet another divisive bill on the docket in their “Parents Rights Act,” also known as House Bill 658.

This bill would require teachers, counselors and other professionals to notify parents immediately if their child identifies as transgender or is questioning their identity. More than that, it actually provides a claim against the state and felony criminal repercussions in the event that such disclosures are not made. The proposed legislation specifically states: “If a government agent or entity has knowledge that a child under its care or supervision has exhibited symptoms of gender dysphoria or otherwise demonstrates a desire to be treated in a manner opposite of the child’ s biological sex, the government agent or entity with knowledge of that circumstance shall immediately notify, in writing, each of the child’ s parents and the child’s guardian or custodian.” The Ohio Education Association, a union representing 125,000 teachers and education support professionals, has made statements

44 | Columbus Bar L aw yers Quarterly Winter 2019

publicly opposing the bill. The OEA president, Becky Higgins, said: “It is contrary to OEA’s belief that all persons, regardless of gender orientation, should be afforded equal opportunity and guaranteed a safe and inclusive environment within the public education system” This legislation was prompted after a court granted grandparents custody rights over a 17-year-old transgender boy after his parents tried to force him into conversion “therapy”, a practice that is widely upheld as traumatizing and ineffective by the American Psychological Association. In fact, Ohio made national news when a transgender teen from Cincinnati took her own life after being forced by her parents into conversion therapy. Her name was Leelah Alcorn. Hours after her death her suicide note was posted online which included her contempt for the “therapy” and the following: “The only way I will rest in peace is if one day

Requiring government personnel in public schools, juvenile prisons, children services agencies and even homeless shelters to expose youth they believe to be transgender or gender non-conforming or face criminal felony charges is not a productive use of the power from our state government. transgender people aren’t treated the way I was, they’re treated like humans, with valid feelings and human rights. My death needs to mean something.” Gender identity is a very contentious issue, even within the LGBTQ community. Many do not understand what gender dysphoria is and reject the idea outright. However, for those children and families that live with the distinction, being singled out by the government for continued harassment, exposure and fear will only lead to more tragic outcomes and unnecessary obstacles on an already-difficult path. In my practice, I have worked with many clients who identify as transgender, and each of them has their own story and struggle to share. They are seeking help and acceptance, whether it is an issue in their workplace, school, custody, housing or even the courts. There is help to be found. Equitas Health, a statewide LGBTQ health organization, has funded legal clinics to help transgender clients change their name and gender markers on government documents. Often these clients in particular have issues with local courts finalizing their petitions; this is especially true for minors wanting to change their names, even with both parent’s consent. HB 658 is expected to go before the Ohio General Assembly before the end of the year, and if it becomes law, then the real issues will begin. Requiring government personnel in public schools, juvenile prisons, and even homeless shelters to expose youth they believe to be transgender or gender non-conforming or face criminal felony charges is not a productive use of the state’s power. It protects no one; it serves only to create more barriers to inclusive environments in our society and it puts teachers, principals and other state employees in a precarious role of gender policing.

Transgender children should be free to express themselves. Their rights should not be shed at the schoolhouse gate. There is no justification for a bill that will create more fear and division when love, respect and kindness are most needed. House Bill 658 should be rejected outright, and the teachers, principals and counselors can get back to doing what they do best: their jobs.

Hannah L. Botkin-Doty, Esq.

Artz, Dewhirst & Wheeler, LLP hlbotkindoty@adwllp.com

45 | Columbus Bar L aw yers Quarterly Winter 2019

Winter ‘19: Education Law

Navigating

Student Loan Debt by Shalyn Smith and Laura Soltis You have dreamed about this for years, maybe since you were a child, and finally it’s a reality. You studied hard, passed your exams, graduated from law school, found your name on the Supreme Court bar pass list and landed a job. It’s time to enjoy the fruits of your labor. Then one day you open the mail to find that it’s time to start paying back your student loans. Amounts of student loan debt vary widely, but the average law school graduate owes somewhere in the range of $120,000. As the interest continues to accrue on that amount, repayment can seem overwhelming. Student loan debt factors into major life decisions

for many young people. Some wait longer to move out on their own, make major purchases such as homes and cars and even get married and have children. With that kind of impact, it is important to deal with your debt immediately and responsibly. As a law student, you may have gotten used to living on a budget, but you were expecting to have a little more freedom after getting that long-awaited job. You factored law school loan repayment into your budget and are keeping your belt tight. With your focus on your new job and freedom from classes and exams, you may have overlooked some opportunities to accelerate the repayment process, or even reduce the amount you have to pay. The following are some ways you can boost your income and reduce your expenses.

Make some extra money using what you already have One way to attack student loan debt is to make extra income that you can apply toward your loans. After working a full day as an attorney, however, it is nearly impossible to find extra time or energy for second job. But now, with the advent of technology, there are opportunities to use the resources you already have to your financial advantage. A few of these include: Sharing your home: People are always traveling to Columbus. Take advantage of this and make money by hosting guests that you can personally choose. One young attorney used the popular home sharing site Airbnb, and made over $10K in a single year, taking a big chunk out of her loan debt. Just be sure to save some of your income for taxes.

…Be sure to make time for rest and relaxation. You have accomplished a lot just to get to this point in your life. Remember that balance is often the key to happiness. 46 | Columbus Bar L aw yers Quarterly Winter 2019

Charging it up: Those scooters you see all over downtown Columbus run on electricity. Did you know that the companies will pay you to charge their scooters? You choose when you want to take them home, charge them and then return them to the street. Find out more about how to become a Bird Hunter and a Lime Juicer.1 Talk about an effortless way to earn extra cash! Getting paid to shop: Upload pictures of your receipts to the Receipt Hog app and agree to help marketing companies track your spending patterns.2 You can earn gift cards and prizes for taking photos of your daily receipts. Plus, there is the added benefit of having a photo of your receipt for that time you really need to return something but canâ€™t find the receipt! Saving effortlessly: Acorns is an investment app that allows you to turn on the automatic round-up option on your credit and debit purchases.3 The app then invests the spare change, allowing you to squirrel it away for whenever you need it. There are other spare change investment apps as well, so take a few minutes to determine if one of these is right for you. You likely wonâ€™t notice those few cents here and there, and they can really add up over time. You can use the funds to pay down your debt, or to treat yourself.

Commute differently Regardless of where you work, commuting expenses probably eat into your budget. The ever-increasing costs of gas, oil, maintenance and parking fees (not to mention the time spent in traffic) really add up. There are several ways to help trim these costs: COTA: The Central Ohio Transit Authority has an extensive bus system that runs express routes during rush hour, even to the outlying suburbs. A monthly COTA pass is only $62. However, if you work for a qualified company within the Capital Crossroads Special Improvement District, you may be eligible for a free pass.4 Rideshare: Websites like carpoolworld.com and ridesharing.com allow you to find others making the same journey to share both the expenses and the time.

Do you qualify for a loan forgiveness program? Although student loan debt can be overwhelming, there are several programs designed to assist those in traditionally lower-paying positions. Take the time to explore any and all of them to see if you can benefit. Federal Public Service Loan Forgiveness Plan: Starting in 2007, borrowers under this plan who meet strict criteria can have their student loans forgiven. There are three basic criteria:

47 | Columbus Bar L aw yers Quarterly Winter 2019

• • •

Your loans must be federal loans; Your employer must be a government organization; You must make 120 qualifying on time payments in an income driven or standard repayment plan.

Recently, many individuals in the program found that after 10 years their forgiveness was denied. The requirements are strict. Do your homework. If you decide to enroll, carefully review all the necessary criteria and complete all the steps so you can reap the benefits.5 To further assist eligible borrowers, the Department of Education has published a blog explaining common mistakes. Review this to help make sure you do everything correctly.6 Other Loan Forgiveness Options for Lawyers: Student Loan Hero provides a list of loan forgiveness resources for lawyers in addition to the one listed above. Take a look at this site to see if you qualify for any of the other forgiveness programs; a few minutes could save you a lot of money.7

Have a social life…without breaking the bank! Between trying to kickstart a new career, stick to a budget and pay down your student loan debt, you might feel like there is no time or money left for fun. Yet, there are many inexpensive and free things to do in and around Columbus. Here are just a few ideas to get you started: • The Columbus Museum of Art is free every Sunday, but it isn’t the only museum you can visit for free. You can tour comic books at Ohio State University or cars in German Village.8 • The Columbus Metroparks are always free options. Get some exercise, birdwatch, ice skate, encounter wildlife or even visit bison right here in central Ohio.9 • The Columbus Metropolitan Library is one of the best in the country. Many of the branches have free programs to enjoy. In addition to print books, you can borrow many audio and e-books at no charge – with a library card, of course.10 • The Columbus Bar Association has a free (for members) happy hour on the third Wednesday of each month called Committees and Cocktails. It is a great opportunity to network while having some fun with your colleagues who share your experiences. • Looking for an inexpensive way to eat out? Take

advantage of happy hour at one of the many local restaurants in Columbus. Meet some friends and, rather than have a whole meal, order a few halfpriced appetizers to share. Enjoy the ambiance for a fraction of the cost of dinner out. Check out one of the local weeklies like Columbus Alive for suggestions. The reality of student loan debt repayment is overwhelming at first. The above strategies should just be a starting point when you are looking for ways to boost your income and reduce your expenses. By making a few changes to your daily routine you can have even more of that hard-earned money to put toward reducing your debt. In addition, loan-repayment assistance - like financial aid - is out there, but you need to seek it out. The time you spend to find a program for which you qualify will be time well spent. In the meantime, be sure to make time for rest and relaxation. You have accomplished a lot just to get to this point in your life. Remember that balance is often the key to happiness. Find something you enjoy and people with whom you can share your enjoyment. There are so many free and inexpensive things to do in and around Columbus. Take advantage of them, because they will help you reach your financial goals, and since “the best things in life are free”, you will have more money to pay down those student loans. Bird: https://chargers.bird.co/join | Lime: https://web.limebike.com/juicer https://www.receipthog.com/ 3 https://www.acorns.com/ 4 https://www.cota.com/wp-content/uploads/2018/04/c-pass-building-list-4-col.pdf 5 https://studentaid.ed.gov/sa/repay-loans/forgiveness-cancellation/public-service 6 https://blog.ed.gov/2018/06/8-common-public-service-loan-forgiveness-mistakes 7 https://studentloanhero.com/featured/the-complete-list-of-student-loanforgiveness-programs/#lawyers 8 https://www.columbusonthecheap.com/discount-and-free-museum-days-in-columbus 9 http://www.metroparks.net/programs-and-activities 10 https://www.columbuslibrary.org 1 2

48 | Columbus Bar L aw yers Quarterly Winter 2019

Shalyn Smith, Esq. Laura Soltis, Esq.

lauras97@aol.com

Winter ‘19: Education Law

Rural Education

ADVOCACY

in Appalachian Ohio by Lucy Schwallie

Rural, remote public schools face challenges that their urban and suburban counterparts do not: significant transportation struggles, difficulty recruiting and retaining talented professional staff and the inability to provide a variety of educational settings for students who may not thrive in a traditional classroom environment. Combine these institutional challenges with a student population increasingly exposed to substantial trauma due to multi-generational poverty and the opioid epidemic, and you have a growing group of vulnerable children at risk of being unable to complete their education. As an attorney who represents rural low-income families in education matters for Southeastern Ohio Legal Services in Athens, Ohio, I see firsthand situations where children are prevented from getting an education: a formerly homeless student expelled after a search found a pocketknife in his backpack; a first-grade student suspended more than 15 days in a school year and referred to an alternative school for behavioral outbursts; a high-school student who has been the victim of large-scale bullying for reporting a sexual harassment incident; a disabled student with behavioral challenges removed from the three different schools she has

attended in the past year without a plan to continue her education. One client’s son, Randy*, was suspended from his elementary school after an emotional outburst where he overturned a desk in anger and poked a classmate in the hand with a pencil. Randy had been diagnosed by his physician with ADHD and severe PTSD from living with significant domestic violence in his home. Randy’s school told his mother he should be sent to an alternative school because of his increasing behavior issues.

Randy’s mother consented, only to be surprised and concerned after learning her son would only receive one hour of educational instruction at this alternative school (the rest of the time was made up of behavior therapy). Two months into his placement at the alternative school, Randy’s mother wanted him back in the mainstream school because she was worried he was getting farther and farther behind academically. She was apprehensive, however, that when he returned he might have another behavioral outburst and they would be back in the same place. She contacted SEOLS for help.

Keeping students in the classroom and on track to complete their education is vitally important to breaking the cycle of poverty in our region, and I am grateful to be a small part of that. 49 | Columbus Bar L aw yers Quarterly Winter 2019

Reviewing Randy’s educational file, I believed a strong argument could be made that the District did not follow its “child find” obligation to identify, locate and evaluate all children with disabilities, regardless of the severity of their disabilities. We immediately requested the district conduct an expedited evaluation of Randy. He qualified for special education services, and we worked to place him on a comprehensive Individualized Education Program that considered his past trauma from exposure to domestic violence in the home. We worked to transition him back to his neighborhood school with supports, and eventually settled with the district to receive 60 hours of free tutoring over the summer to make up for lost instructional

time during the school year while he was at the alternative school. Randy is thriving in middle school now with his additional supports and was recently recommended to serve on his school’s student council. His teacher wrote on the recommendation that Randy was “kind and hardworking” with a “wonderful and positive attitude.” Randy only spent two months out of the classroom. Other clients of mine, however, have faced significantly longer removals. Research has found that one of the many factors contributing to the achievement gap for low-income, minority and disabled students is the significant amount of time students spend removed from the classroom. School removal pushes

50 | Columbus Bar L aw yers Quarterly Winter 2019

vulnerable students who are already behind academically even further behind, widening that gap. School exclusion also negatively affects families struggling financially. When parents need to pick up their child during the school day because of a behavioral issue, or if a disabled student is receiving only an hour of instruction at home because the school cannot provide the appropriate staff – those parents are losing income and increasing the chance they may lose their jobs altogether. How can an attorney help? Laws exist that protect our students from exclusionary discipline without adequate due process, require schools to provide appropriate special education services and

accommodations for students with disabilities and health conditions, and mandate School Boards create policies to address bullying and harassment. Parents have rights and options if they disagree with a school’s recommendation that their child enroll in an alternative school. And, importantly, a school is not excused from complying with state and federal law requiring disabled students be provided a free appropriate public education because of difficulty providing the required services in its rural location. Practicing parent-side education law in a rural legal aid context presents different challenges than private practice. If my clients disagree with a school’s placement decision, they do not have the resources to pay for a private placement while our due process complaint to the state is pending, even knowing they will be reimbursed if we are successful, and they rarely even have a suitable private placement option within a reasonable driving distance. My clients can be transitory because of financial constraints, and often work goes into getting an Individualized Education Program or getting a kid back in school, only to have the family relocate soon after. Simple things like client communication can be a struggle – I am often unable to contact a client because they are out of minutes on their cell phone and have no land line, or my clients have no cell phone service at their rural home. My clients frequently have no access to transportation, relying on case workers or friends to take them to school meetings because of lack of public transportation options.

Expect the Unexpected Legal issues often arise when you least expect them, and when they do, it is important to contact a law firm you can trust.

PERSONAL INJURY CRIMINAL DEFENSE CIVIL LITIGATION 536 S. High Street Columbus, OH 43215 614-221-1342 tyacklaw.com

While these challenges may seem daunting, the opportunity to help these resilient families keep their children in school is meaningful and fulfilling. Keeping students in the classroom and on track to complete their education is vitally important to breaking the cycle of poverty in our region, and I am grateful to be a small part of that. If you are interested in providing pro bono legal assistance to families who are facing an educational dispute with a school district, both the Legal Aid Society of Columbus and Southeastern Ohio

Legal Services can help pair you with a client in need. And if you encounter a low-income family who needs help on an education matter, although SEOLS and LASC do not have the staff to provide full legal representation for every lowincome student facing school push out or an educational dispute, we can give advice, provide materials on students’ rights and often can negotiate a resolution of the case. The services are always free for financially-eligible families. *Name changed.

Lucy Schwallie, Esq.

Southeastern Ohio Legal Services LSchwallie@seols.org 51 | Columbus Bar L aw yers Quarterly Winter 2019

Winter ‘19: Education Law

College sex

and climate change by Leslie Albeit

The sands are shifting again in the area of sexual misconduct investigations on college campuses. Under the Obama Administration, the pendulum swung toward protecting student victims of sexual misconduct. Now, new procedural rules are being proposed that would help protect the rights of the accused. Here is a quick look at the future of college sex investigations under the proposed rules.

Title IX Refresher Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in schools that receive public funding. With regard to institutions of higher education, the conversation turns controversial when speaking about how schools must react when they receive a complaint of sexual misconduct (including sexual assault, harassment, stalking or dating violence) occurring on campus or with a sufficient nexus to campus.

Previously, the Obama-era Department of Education issued a Dear Colleague Letter in 2011 which outlined specific requirements that schools must follow when investigating an incident involving sexual misconduct. This Letter was followed by a Questions and Answers document on Title IX and Sexual Violence released in 2014. Specifically outlined in those documents were a number of directives to schools on how to handle complaints of sexual

52 | Columbus Bar L aw yers Quarterly Winter 2019

misconduct. Most notably, and at the heart of the recent revisions, were procedure requirements for the related misconduct hearings. First, the 2011 directives indicated that investigations should be resolved within 60 days. Next, the standard of proof required to make a finding of responsibility (the college equivalent to a guilty finding in the court of law) was mandated to be set at a “preponderance of the evidence.” Preponderance of the evidence is synonymous with “fifty percent plus a feather,” meaning that the

Lawyers who routinely practice in this area understand that preparation of a viable defense occurs way ahead of a misconduct hearing, and is many times lost or won during the investigation phase. school had to find that the accused student was “more likely than not” to have committed sexual misconduct. Also, informal mediation between parties was prohibited as a resolution option. Finally, a “single investigator” model was permitted, whereby a school official or designee was responsible for both investigating the complaint and making the determination of responsibility. This model also allowed schools to conduct investigations without a hearing and without cross-examination of the accuser.

Changes Underway The 2011 guidance (and subsequent clarification in 2014) was rescinded by the current Department of Education. The 60-day timeframe for investigations has been discarded, making way for a more flexible “timely manner” requirement. Under the new proposed regulations, schools now have the discretion to apply either the preponderance of the evidence standard or a higher “clear and convincing” standard in order to determine responsibility. Clear and convincing is comparable to a 75 percent or higher finding that the alleged misconduct occurred, falling somewhere between the preponderance standard and the high “beyond a reasonable doubt” standard used in criminal cases. Informal mediation of sexual misconduct cases can now be permitted by colleges, if all parties voluntarily agree.

An interesting caveat to the cross-examination element is that if a student does not submit to crossexamination, the decision-maker cannot rely on any statement of that student when reaching the final decision on responsibility. Therefore, if an accuser does not participate in cross-examination, prior statements given during the investigation cannot be used to determine responsibility of the accused. This also has potential negative implications for the accused because an accused student may elect to withhold their own responses on cross-examination if a criminal investigation is ongoing during the school’s misconduct investigation, namely to avoid self-incrimination. This could now mean that no statement made by the accused could be used by the final decision maker, effectively penalizing the student for asserting rights under the Fifth Amendment.

The biggest departure from previous procedures is the introduction of a live hearing requirement. A student’s advisor would now have the opportunity to crossexamine the opposing party in a hearing. Previously, if schools permitted a student to have an advisor present during proceedings, the advisor was not permitted to speak on the student’s behalf or question witnesses at any time. Now, an advisor is required to conduct crossexamination. If a student does not have an advisor, the school must provide the student with an advisor to conduct the cross-examination. 53 | Columbus Bar L aw yers Quarterly Winter 2019

Case Law & The New Title IX

Practically Speaking

The proposed changes to Title IX are in line with the pendulum swing happening in the courtroom. In September 2017, a decision made by the Sixth Circuit Court of Appeals made headlines when the Court awarded a stay of a suspension of a student at the University of Cincinnati who was found responsible for sexual misconduct. This case involved a true “he said/ she said” situation, but the accuser failed to appear at the hearing in front of the university decision-making body. The university nonetheless found responsibility, basing their decision on prior hearsay statements made by the accuser during the investigation. The court ruled that cross-examination was a due process procedure that must be afforded to students accused of sexual misconduct in the educational area. Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2018).

For those in the business of defending accused students, these new proposed protections are no doubt helpful. However, lawyers who routinely practice in this area understand that preparation of a viable defense occurs way ahead of a misconduct hearing, and is many times lost or won during the investigation phase. A student that seeks advice or counsel prior to participating in any interviews or “conversations” with school officials is much more likely to present a thought out, organized version of events, and obtain a fair result, regardless of the hearing procedure. It is encouraging, however, that every student accused of sexual misconduct will be guaranteed the right to a live hearing and crossexamination, should either or both be needed. Mediation can also be a pragmatic way to resolve some cases, especially where both parties volunteer to participate.

Following and citing Doe v. Univ. of Cincinnati, the Sixth Circuit granted relief to a University of Michigan student accused of sexual misconduct who was not afforded the opportunity for a live hearing through the school. The Court ordered the school to provide the accused student a live hearing and the opportunity to crossexamine the accuser through a third party. Doe v. Univ. of Michigan, No. 2:18-CV-11776 (E.D.Mich. 2018).

Note: The new changes discussed in this article are under a public notice and comment period until January 28, 2019 and have not been formally adopted as of the date of writing.

Leslie Albeit, Esq.

Albeit Weiker, LLP leslie@awlawohio.com

54 | Columbus Bar L aw yers Quarterly Winter 2019

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Life Outside the Law

Eating Disorders

Affect Lawyers, Too BY scott r. mote, esq.

“I’m learning to let go of perfectionism. It’s probably what drove me to become a lawyer, it’s probably what makes me a good one, and it’s definitely played a part in my [eating disorder]. Needs are a difficult thing. Contending with your own is hard enough; working a job that mandates you take on the needs of others is another beast entirely. Throughout my experience, I’ve learned what I’ve always known but was never able to do: take care of me before I can take care of them. Once I was able to see that, once I was able to do that, it was clear to me how much more space I had to tackle other people’s problems. Because I am a healthier person, I am a better person. I am a better lawyer.”1 This is just one example of a lawyer who suffers from an eating disorder. A 2017 study of law student mental health from the Journal of Legal Education concluded that 27 percent of law students (18 percent of male respondents and 34 percent of female respondents) screened positive for eating disorders.2 The National Eating Disorder Association reports that up to 30 million people in the United States suffer from an eating disorder.3 Eating disorders, also known as anorexia nervosa, bulimia nervosa or binge-eating disorder, are illnesses that cause abnormal eating habits. Eating disorders are not a choice. They are mental illnesses that can cause serious danger to your health. They affect all people, even lawyers.

Types of eating disorders: ANOREXIA: People with anorexia see themselves as overweight and refrain from eating. Anorexia nervosa has the highest mortality rate of any mental disorder.4 Anorexics constantly weigh themselves and count calories. They only eat certain foods and are extremely underweight.

BULIMIA: Bulimia is a disorder in which people eat excess amounts of food until they are sick. They oftentimes make themselves vomit, take laxatives or exercise excessively to rid themselves of the food they devoured. They have a fear of gaining weight, but are not typically underweight.

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Eating disorders are not a choice. They are mental illnesses that can cause serious danger to your health. They affect all people, even lawyers. BINGE-EATING DISORDER: People with binge-eating disorder have no control over what and how much they eat. This leads to feelings of guilt and shame, which then leads them to binge-eat again. It is a vicious cycle. People who suffer from binge-eating disorder do not purge or exercise uncontrollably after an episode. They are usually obese or overweight. Eating disorders wreak havoc on a body and are often accompanied by other mental illnesses, such as anxiety and depression. Long-term disorders can lead to heart disease, tooth decay, stroke, hypertension and, among many other health problems, death.

Lawyers and eating disorders:

As lawyers, most of us are perfectionists. We have a very high regard for our image and the way others perceive us. We fear that showing any sign of weakness will lead others to believe that we are not competent or that we are vulnerable. But, as one lawyer who suffered from bulimia explains, being vulnerable “is something that is absolutely necessary in mental health recovery. Particularly eating disorder recovery. It may involve opening up the well of emotions that may date back over

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a lifetime that are holding you back from getting better. … [It is] [v]ery counter-intuitive to the projection of knowledge, competency, and strength in the profession.”5 Unfortunately, there is still a stigma that comes along with mental health disorders. A lawyer explains: “I felt completely stigmatized and alone in my eating disorder and did not feel that anyone, including [my psychiatrist] could understand or help. Adding to the stigma was my profession. Not only was I a male with an eating

disorder, I was a male lawyer with an eating disorder. How stigmatizing was that?”6 As with all mental health disorders, it is time for the legal profession to step up and recognize that these disorders are real, just like a diagnosis of cancer or multiple sclerosis is real. Learn the signs, and help our profession heal.

Signs of eating disorders:

These are only 10 of the many potential signs of eating disorders. This is by no means an exhaustive

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list, but if you notice a co-worker beginning to display a few or more of these symptoms, you may want to start a conversation with them to ensure that they are not heading down a dangerous road. • • • • • • • • • •

Dramatic weight loss An obsession with calories, diets, food and weight Having no control over when and how much you eat Strong need for control Eating in secret or hiding food Excessive exercise Using medication to suppress appetite Refusing to eat/denying hunger Laxative abuse Withdrawal from friends and family

Help is available: The Ohio Lawyers Assistance Program is always available to help, and it should be your first call. Remind yourself that if you are not well, then you are not the best advocate for your clients. “I … called my state’s lawyer support service. They honored my decision to enter treatment, validated my desire to withdraw from certain cases, and talked me through how to have conversations with my clients. When I expressed doubt about withdrawing, they reminded me that I might not be the most zealous advocate right now, and making space for myself might not only be in my best interests, but also my clients’…

“[Upon entering treatment], the relief I felt was immediate and palpable. I hadn’t been showing myself a lot of grace up until this point, but it didn’t take more than a day to realize that dropping these cases was the biggest act of self-care I could have shown myself. This step was necessary in order to make space for myself in treatment.” If you are a lawyer who exhibits even one of these signs, or if you are worried that a lawyer you know might have an eating disorder, please contact the Ohio Lawyers Assistance Program for help.

OLAP offers Ohio lawyers CONFIDENTIAL treatment options. For more information, go to ohiolap.org or call (800) 348-4343 or (614) 586-0621. Lawyerist, How my Eating Disorder Took Over my Law Practice and my Life, https://lawyerist.com/eating-disorder-took-law-practice-life/ 2 Jerome M. Organ, David B. Jaffe & Katherine M. Bender, Suffering In Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 Journal of Legal Education 116 (2016) 3 National Institute of Mental Health, www.nimh.nih.gov/health/topics/eatingdisorders/index.shtml 4 Id. 5 Brian Cuban, Eating Disorders: A Secret in the Legal Profession, https://www. briancuban.com/blog/eating-disorders-a-secret-in-the-legal-profession/ 6 Id. 1

Scott R. Mote, Esq.

Executive Director Ohio Lawyers Assistance Program smote@ohiolap.org

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Life Outside the Law

ACADIA National Park Has Something for Everyone BY hon. david e. cain Ocean waves bursting into white foam as they pound against granite seawalls. Carriage roads winding up mountainsides overlooking inland lakes. Beckoning bicycle and hiking trails, whale-watching and lobster-boat cruises, fine dining and a spot where one can be the first in the country to see a sunrise. Sightseeing by railroad, trolley, bus, catamaran boats, small airplanes and your own two feet. There’s something for everyone. The stout-hearted can rock climb or paddle kayaks from island to island.

The more sedate can enjoy a variety of museums and nature excursions. Such is Acadia National Park— about a thousand miles northeast of Columbus near the north end of the east coast of Maine—accessible in a couple days by car or a few hours by plane. My wife, Mary Ann, and I traveled in an RV with David and Debbie Smith of Lancaster. Debbie is Mary Ann’s cousin, and David is the former mayor of that city. We stopped at a small airport just west of Mt. Desert Island and picked up a rental car. The island holds Bar

Harbor (a municipality referred to as “downtown”) along with inland (deciduous and evergreen) forests and lakes, glamourous harbors, other quaint villages with delightful restaurants and shops, hotels, campgrounds and a seemingly unlimited number of spectacular overlooks. A good introduction to Mt. Desert can be experienced by driving the 27-mile-long (mostly one-way) Park Loop Road. You can make the trip in about an hour if you can resist stopping. A better plan calls for spending half the day on the drive. The loop begins at the Visitor’s Center at Hull’s Cove (but can be entered at many points along the way). The next stop would be Sieur de Monts Spring, site of the Wild Gardens of Acadia which holds the Abbe (archeological) Museum, the Park Nature Center and the spring itself. The next likely long pause would be at Sand Beach, so called because it is about the only place on the island where “sand” can be found. A small offshore island nearby breaks up the ocean waves and allows the sand to accumulate. The sand consists almost entirely of ground

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There’s something for everyone. The stout-hearted can rock climb or paddle kayaks from island to island. The more sedate can enjoy a variety of museums and nature excursions. Then, go back in a pre-dawn hour to be among the crowd sprinkled across the east side of the peak so that they can be the first people in the USA to see the sun rise that day. And expect an eerie cheer to echo through the darkness when the fiery orb first peaks through the yellow-orangepinkish glow shrouding the horizon.

up seashells. Although it has a spacious parking lot and restroom facilities, not too many people actually swim in the arctic waters. Go early in the morning to get the enchanting effect of mist and fog blanketing the cliffs and boulders. Just up the road is Thunder Hole, where waves sound like thunder claps when they hit a deep indenture in the granite bank. It’s a nice 1.5-mile hike from there to Otter Cliffs (a favorite for rock climbers). You’ll have to stop every few minutes for another breathtaking view of granite walls, blocks and boulders in an infinite variety of shapes and sizes rising from the spraying ocean waters far below. We watched a young man in a tuxedo helping a woman in a white wedding dress inch toward a cliffside where the marital vowels would be recited.

Near the end of the Park Loop Road is a turn off for Cadillac Mountain, the highest point on the Atlantic coast at 1,530 feet. You can hike up a four-mile trail to get there, but with more than a hundred miles of trails on the island, save your energy for spots not accessible by automobile and drive to the ample parking at the crest. Go during the day, when the views in all directions are spectacular. Since Cadillac Mountain is basically a colossal granite boulder, it holds very little vegetation to block the views – like the one overlooking Bar Harbor and the ocean beyond.

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The greatest manmade treasure of Acadia is the 57 miles of interconnecting gravel roadways designed by John D. Rockefeller, Jr., partly in response to the island being opened to automobiles. Rockefeller strictly prohibited any kind of motorized vehicles entering the carriage roads. His wishes are still being enforced. Not even electric bicycles are tolerated by the volunteer auxiliary rangers. That helps keep the roadways— meandering along the coast and mountainsides and across 17 original stone bridges—ideal for

walks, regular bicycles and leisurely horse-drawn carriage rides with drivers who give ongoing history lessons along the way. An added attraction are the granite blocks— each one with a little different shape— that serve as guardrails along much of the wooded and cliffside pathways. We spent three full days in Acadia. We did the whale watch trip the first day in case we didn’t see any whales and had to exercise the right to do another one free (pursuant to their guarantee) on one of the following days. The second day started on Cadillac Mountain followed by visits to Sand Beach and Thunder Hole. That afternoon, we enjoyed a carriage ride and a four-mile hike around Jordan Pond, another attraction along the Loop Road. The last day, we road our bicycles on a piece of the Carriage Roads and did some more hiking. Wildlife on the island includes snowshoe hares whose white color in the winter and brown color in the summer help protect them from foxes and coyotes. Whitetail deer are abundant but seldom seen. Beavers and loons have lodges and nests that can be seen on certain lakes and ponds. There are no poisonous snakes on the island, just harmless little garters. Acadia’s pink granite was formed by hot liquid magma rising from the depths of the earth, mixing with rocks and then cooling and solidifying as it reached the surface some 350 million years ago. Glaciers polished it and carved it for lakes and ponds, mountains and valleys. Boulder fields on granite domes are rocks that were once embedded in the ice.

France and England fought over the Maine Coast for 150 years beginning in the early 1600s. In 1688, the French governor of Quebec gave Mt. Desert Island to a French soldier, Sieur Antoine de la Mothe Cadillac. He and his bride came to the island to live, but left because of the ongoing war. Later, Cadillac founded Detroit and was the first governor of French Louisiana. Life on the island gradually changed from fishing and farming to a tourist-dominated economy. In the late 1800s, it became a summer haven for the wealthiest Americans, who built mansions along the coast that were called cottages. Threats of logging and development prompted many of the landowners to promote the establishment of a national park by acquiring and donating land for that purpose. Rockefeller alone donated 11,000 acres to Acadia National Park. Nowadays, more than two million people visit the small (total of 46,000 acres) national park each year. Most of them come in the summer, but October’s colors bring many in the Fall and the Carriage Roads can be used for cross country skiing in the Winter.

Hon. David E. Cain

Franklin County Court of Common Pleas David_Cain@fccourts.org

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Life Outside the Law

Lawyers with Artistic License:

David Shroyer BY HEATHER G. SOWALD He was nicknamed “Mr. Magic” by the crowd of excited children gathered around at train stops in India. He found that performing sleight-of-hand tricks helped him quickly meet the locals as he traveled with his wife, Judge Susan Brown. David Shroyer loves to break the ice and create friendships through his magic tricks, whether it is at a meeting, a deposition, a bar or while teaching. He can quickly create illusions with coins, tissues or even water bottles. His greatest pleasure is when he carries his grandfather’s

old battered black medical case, chock full of his props, including cylinders, ropes, balls and, of course, a multitude of many-colored silk scarves. David’s foray into magic tricks began, as it usually does, with a Christmas present to a young boy. David, of course, knew he had to master the simple magic tricks in the box, and has never stopped learning new tricks of misdirection to his audiences’ delight. While he has not invented any tricks, he has improved on others’ tricks. He attends magic conventions, searches books for old tricks and practices the subtleties of making his hand actions look natural, even

David enjoys performing, whether it is with his magic, in the courtroom filled with jurors or in a classroom of law students. 62 | Columbus Bar L aw yers Quarterly Winter 2019

if he has palmed an extra coin or card. His current repertoire, he says, consists of about 40 tricks. David grew up in Troy, Ohio, with a chemist father and school secretary mother. His uncle once advised him that “lawyers control the world,” and while law was not his original goal, he has never regretted his choice of profession. David has had a successful career beginning with the county, then federal prosecutor’s office and, since 1989, with the personal injury firm of Colley, Shroyer and Abraham. David says he once used a disappearing object trick as a prosecutor in a Juvenile Court hearing to underscore his message that “things aren’t as they always appear.” He won that case. David enjoys performing, whether it is with his magic, in the courtroom filled with jurors or in a classroom of law students. He has been an adjunct professor at Capital Law School, his alma mater (from which he graduated in 1980), for over two decades, teaching trial advocacy to more than 1,000 students. David has also served on the Columbus Bar Association Board of Governors and was president of the Ohio Chapter of American Board of Trial Lawyers.

Their son, Tyler, followed in his parentsâ€™ footsteps and is an assistant County Prosecutor, but did not follow in the path of learning illusions. David admits that he harbors hope of someday passing his tricks on to his son. David and Tyler recently partnered to create a free Federal Evidence Applied app, which took two years to develop. The app assists trial attorneys to quickly look up an evidentiary issue and follow through to determine whether a rule might apply. Davidâ€™s future will continue to be filled with his law practice, traveling the world with his wife and working on his illusions. When he retires, his goal is to immerse himself in improving his finger and hand dexterity, and to continue entertaining everyone along the way.

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com

Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER Verdict: $17,255.00. Automobile Accident. On Feb. 12, 2015, Plaintiff Joel Hachet was driving on Alum Creek Drive. As he passed the on-ramp to Interstate 270, his vehicle was struck on the driver’s side by a vehicle driven by Defendant Diana Sherrin-Topping. Sherrin-Topping was headed the opposite direction on Alum Creek Drive and had turned left toward the I-270 on-ramp. The force of the impact caused Hachet’s vehicle to roll down an embankment. Hatchet claimed injuries to his neck and back, but did not go to the hospital from the scene of the accident. Six days after the accident, he went to Mount Carmel St. Ann’s Hospital and was diagnosed with soft tissue injuries to his neck, mid and lower back. He followed up with his primary care physician and then underwent a month of physical therapy and a month of chiropractic care. Hachet was working at a call center at the time of the accident. He missed the first two weeks after the accident and then was told not to return. He was unemployed for another month. Hachet also withdrew from a class at a local community college after the accident. When he returned to work, he began suffering muscle spasms

in his lower back. He underwent additional physical therapy to treat these new symptoms. Hachet sued Sherrin-Topping, alleging that she negligently failed to yield the right of way and caused the accident. He sought past medical expenses, lost earnings and the loss of the money he spent on the community college class as well as non-economic damages. Sherrin-Topping did not dispute that she was negligent and that her negligence caused the accident. However, she disputed that Hachet lost his job as a result of the accident and argued that Hachet would not have required such lengthy treatment if he had completed his initial course of chiropractic treatment. The jury awarded Hachet $6,335.71 for past medical expenses, $1,104 for past lost wages, $815.58 for the lost investment in the community college course and $9,000 for pain and suffering. No settlement negotiation information was provided. Plaintiff’s Expert: Paul Valenti, D.C. (chiropractor). Defendant’s Expert: None. Length of Trial: two days. Counsel for Plaintiff: Chanda L. Brown. Counsel for Defendant: Lori E. Thomson. Magistrate Mark Petrucci. Joel Hachet, et al. v. Diana Sherrin-Topping, et al., Case No. 17 CV 000770 (2018).

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Verdict: $9,621.48. Automobile Accident. On Feb. 10, 2014, Plaintiff Sarah Newman was stopped on eastbound West Case Road just east of Dierker Road because of an accident. Two other vehicles were stopped behind Newman’s vehicle. Defendant Jayne Frilling was headed eastbound on West Case Road behind the line of stopped vehicles and failed to stop in time, colliding with the rear of the last vehicle in the line. The collision caused a chain reaction resulting in Newman’s vehicle being struck from behind. Newman incurred over $25,000 in medical expenses that she related to the automobile accident. Frilling admitted negligence, but disputed the reasonableness and necessity of Newman’s treatment. Last Settlement Demand: $35,000. Last Settlement Offer: $12,500. Plaintiff’s Experts: Joseph Ruane, D.O. (family practice and sports medicine); Richard C. Shugert, D.C. (chiropractor). Defendant’s Expert: Karl Kumler, M.D. (orthopedic surgeon). Length of Trial: three days. Counsel for Plaintiff: Mark G. Kafantaris and Matthew Zenko. Counsel for Defendant Jayne Frilling: Roula Allouch. Judge William Woods. Sarah Newman v. Jayne B. Frilling, Case No. 16 CV 001122 (2017).

Defense Verdict. Medical Malpractice. On Jan. 26, 2014, 48-year-old Kenneth Enderle appeared at the Galion Community Hospital ER with complaints of cough and chills with chest wall pain, nausea and vomiting. He was seen in the emergency room by Defendant Andrew Gerken, M.D. When Enderle arrived, his oxygen level was low and he had a fever. He was given oxygen, a breathing treatment and Tylenol. These treatments brought his oxygen level up and his fever down. Dr. Gerken also gave him a flu screen and chest x-ray. The flu screen was negative, but the chest x-ray was positive for pneumonia. Gerken discharged Enderle with a diagnosis of pneumonia, prescriptions for an antibiotic, steroids and an inhaler, and instructions to return to the ER if his symptoms did not improve. The next day, Enderle went to the ER at Hardin Memorial Hospital with a severe headache and shortness of breath. He was admitted with a diagnosis of pneumonia and hypoxia. Despite ongoing treatment, his condition deteriorated. Two days later, Enderle had to be intubated. At his family’s request, Enderle was transported to Riverside Hospital, where he received a second flu

screening, which was also negative. The next day, Enderle was transferred to the Ohio State University Wexner Medical Center for extracorporeal membrane oxygenation, a heartlung bypass treatment. The staff at OSU also performed a third flu screen. The third flu screen was positive for H1N1 influenza. Enderle was given Tamiflu. The treatment at OSU was not successful and Enderle died on Feb. 16, 2014. The administrator of Enderle’s estate filed suit against Gerken and Galion Community Hospital, as well as the ER physician and internist who treated Enderle at Hardin Memorial Hospital. Before trial, the estate resolved its claims against all of the defendants except Gerken, his practice group and Galion Community Hospital. Plaintiffs’ experts argued that Enderle was septic and volume-depleted in the ER and should not have been discharged. They also argued that Gerken should have given Enderle Tamiflu. Defense experts argued that it was reasonable for Gerken to conclude that Tamiflu was not indicated based on how long the symptoms had been present, the negative flu screen and the x-ray that was positive for pneumonia. The defense experts also argued that

administering Tamiflu and admitting Enderle would not have prevented his death. Plaintiff claimed a loss of net future earnings of $1,000,000, lost fringe benefits of $40,000 and $300,000 for the loss of the future household services that Enderle would have provided his spouse. The jury concluded that Gerken did not fall below the standard of care. Last Settlement Demand: $3,250,000. Last Settlement Offer: None. Plaintiff’s experts: Mark Cichon, D.O. (emergency medicine); David Goldstein, M.D. (infectious disease); David Boyd, Ph.D. (economist). Defendants’ Experts: David Talan, M.D. (emergency medicine and infectious disease); Keith Armitage, M.D. (infectious disease). Length of trial: seven days. Counsel for Plaintiff: David Shroyer. Counsel for Defendants Andrew Gerken, M.D. and New Century Physicians, Inc.: Gregory D. Rankin. Counsel for Defendant Avita Health System, d/b/a Galion Community Hospital: Donald J. Moracz and Erin Siebenhar Hess. Magistrate Ed Skeens. Dreama Enderle, Individually and as Administrator of the Estate of Kenneth A. Enderle, Deceased v. Andrew Gerken, M.D., et al., Case No. 15 CV 000956 (2017).

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Defense Verdict. Medical Malpractice. On Sept. 18, 2014, Mollie Florer fell from a top bunk bed at the Franklin County Jail and struck her head. She was taken to Mount Carmel Hospital where she had a CT scan that was interpreted by Defendant Kathryn Gardner, M.D. Dr. Gardner read the CT scan as normal, and Florer was discharged back to the Franklin County Jail. The next day, Florer had a seizure and was transported back to Mount Carmel Hospital. By the time she arrived at the hospital, Florer was exhibiting abnormal body posturing—a sign of significant neurological damage. A second CT scan was done, which revealed subdural hematomas on both sides of the brain. Florer’s condition continued to deteriorate and she died of a brain stem herniation. The first CT scan that had been interpreted by Gardner was re-interpreted and, in retrospect, showed a small sixmillimeter subdural hematoma. Plaintiff’s estate argued that Gardner fell below the standard of care in failing to recognize the subdural hematoma and argued that Florer’s death could have been prevented with appropriate treatment on Sept. 18. Defendants argued that Florer’s death would not have been prevented if the subdural hematoma had been diagnosed on Sept. 18. The jury concluded that Gardner was negligent in failing to recognize the subdural hematoma, but that her negligence did not cause Florer’s death. Last Settlement Demand: $850,000.00. Last Settlement Offer: $150,000.00. Plaintiff’s Experts: Lawrence McNamee, M.D. (radiologist); Leo Clark, M.D. (neurologist); Ron Smolarski, Ph.D. (economist). Defendant’s Experts: Michael Potchen, M.D. (neuroradiologist); Marc Malkoff, M.D. (neurologist).

Counsel for Plaintiff: Ethan Vessels, Brant Rhoad and Matthew Goff. Counsel for Defendants: Gerald Todaro and Zachary Lyon. Judge Stephen McIntosh. Cynthia Florer, Individually and as Administrator of the Estate of Mollie Caitlin Florer, et al. v. Kathryn G. Gardner, M.D., et al., Case No. 15 CV 4080 (2017).

Defense Verdict. Property Damage. On May 4, 2013, an unoccupied rental property owned by Alan K. Sheppard was struck by a 2004 Toyota Highlander. The vehicle was owned by Defendant Taylor N. Ashcraft. The night before the incident, Ashcraft was visiting her boyfriend at a home he shared with his mother and several other family members. Ashcraft spent the night and left the keys to her vehicle on a nightstand. When she awoke the next morning, she discovered that her keys and the vehicle were missing. When the vehicle was located at the rental property, Ashcraft’s purse was on the passenger side floor and there were beer cans inside the vehicle. The force of the collision moved the building a foot off of its foundation. The property was condemned so that it could either be repaired or demolished. The cost to repair the building exceeded the value of the property and the cost to demolish it. Therefore, Plaintiff chose to demolish it. Plaintiff sued both Ashcraft and her boyfriend. Plaintiff was granted a default judgment against the boyfriend. At trial, Plaintiff argued that Ms. Ashcraft was either driving the vehicle or negligently entrusted the vehicle to another. Plaintiff called the officer who investigated the incident. The officer testified that the vehicle must have been traveling 50 miles per hour when it struck the building. Evidence was also presented at trial

66 | Columbus Bar L aw yers Quarterly Winter 2019

that Plaintiff had previously rented the same property to Ashcraft’s boyfriend’s mother and evicted her just three weeks earlier for non-payment of rent. Ms. Ashcraft maintained that she was not in the vehicle at the time of the collision and did not know who had stolen her car keys. She explained that her purse was in the vehicle because she did not take it inside with her when she spent the night with her boyfriend. The jury was asked to determine whether Ashcraft was driving the vehicle and, if it was not Ashcraft, whether Ashcraft had negligently entrusted her vehicle to the driver. The jury concluded that Plaintiff had not met his burden of demonstrating that Ashcraft was negligent under either theory. Claimed Damages: $35,900. Last Settlement Demand: $35,900. Last Settlement Offer: None. Plaintiff’s Experts: None. Defendant’s Experts: None. Length of Trial: two days. Counsel for Plaintiff: David M. Neubauer. Counsel for Defendant: Mitchell M. Tallan. Magistrate Ed Skeens. Alan K. Sheppard, et al. v. Taylor N. Ashcraft, et al., Case No. 17 CV 3952 (2018).

Monica Waller, Esq.

Lane Alton & Horst, LLC mwaller@lanealton.com

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