Columbus Bar Lawyers Quarterly Spring 2020

Page 1

LAWYERS

Columbus Bar Spring 2020

QUARTERLY

This issue looks through a microscope at

Health Care

LAW

health care law. Peek inside for articles on mental health, how HIPAA compliance can protect your business data, medical negligence litigation and more. Plus, check out perspectives from law students and retired attorneys, advice on selling your skills, ethics cases and more.

A publication of the Columbus Bar Association • www.cbalaw.org


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© 2020

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Table of

LAWYERS

Contents

QUARTERLY

Spring 2020 President’s Page

4

Timing is Everything. Luck Favors the Prepared? Amy B. Koorn

Message from the Executive Director

6

Staying Connected. Staying Relevant. Staying Strong. Jill Snitcher

Bar Insider

Bar Happenings

34

Photo Gallery and Calendar of Events

Spring ‘20: Health Care Law

36

HIPAA Compliance 2020 Lisa Pierce Reisz

40

Disability Insurance: Protecting Your Income When You Need It Most John Susie

8

How Our Inner “Press Secretary” Tells Delusional Stories Mark Kitrick and Mark Lewis

42

Medical Negligence Litigation: Who Cares for the Healthcare Professional? Angie Blevins

12

Lawyer Discipline Cases in the Supreme Court of Ohio Nelson E. Genshaft

46

Service is the Connection Between CBA and OhioHealth Lindsay Ford Ellis

Better Lawyer

20

Thoughts from a OnceDepressed Lawyer: Asking for Help is a Strength Anonymous

It’s a Small World Are You Selling 22 What Your Clients?

Student Section

50

Life Outside the Law

54

Don’t Call It Retirement It’s the Next Wave! Rosemary Ebner Pomeroy

58

Lawyers with Artistic License: Judith McInturff Heather G. Sowald

60

Australia is Welcoming: From Urban to Outback (Part 2 of 2) Hon. David E. Cain, Ret.

Bradley Miller

Points of Practice

26

Caveat Emptor: How to Protect Your Record-And Your Case-From the Dangers of Artificial Intelligence Angie Starbuck

30

The Ohio Condominium Reserve Contribution Conundrum Robin Strohm

The Greatest Professor Liz Helpling

Columbus Bar Association Editorial Board Chair

Janyce Katz

Board Members Melanie Tobias Amy Koorn Ashley Johns Garth Rowbotham

Editor

Brianna Antinoro

Design/Production 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

66

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.


President’s Page

Timing is Everything.

Luck Favors the Prepared? by amy koorn I’m not sure which of these clichés fits these times best or complements my year as President. Perhaps neither of them? The world as we knew it took a sharp and unexpected turn when COVID-19 landed. It took us from the hustle and bustle of downtown commuting when we wore suits for court appearances to the sanctuary of our homes and sweatshirts for Zoom conferences. And while I continue to count my blessings (first among them the health and wellness of my family, the continued employment our household enjoys, and the pause that these circumstances have given us to reflect on what truly what matters), I recognize the paradigm has shifted and things will never go back to how they were. Exactly what that looks like remains to take shape. But as we navigate this brave new world with masks, I offer the following reflections from my experience that I find applicable to the situations we face as lawyers and as members of the legal profession.

First, your family—they are our best ally. So, with both levity and a straight face, I can say to all the singles reading: choose your spouse keeping in mind you may be locked at home with them for an extended time and will need to truly partner with that person to survive. By extension, this applies to law partners, as some of you will certainly attest. Nor could I overlook the law school experience. I find sometimes we just need to put our time in and buckle down. For right now, that means we stay home and embrace technology. And to help keep things in perspective: Spring 2020 is not as long as your first semester! Lastly, when I reach back to my triathlon racing days, I am reminded to always have an energy (toilet paper?) reserve and be able to assess and adapt to the conditions. As a lawyer, it means learning how to service clients at a socially safe distance. As president of the CBA, it has meant responding quickly to an association with shifting needs and managing economic developments. Our agility has allowed us to offer a refreshed online Practice Management Center, where members can find advice to help transition through the complexities of working remotely. The CBA has scrambled to assemble and disseminate information that affects our members, which has ranged from conversations with courts to technology advice. We have also strengthened our Lawyer Referral Service to bolster access for individuals who need legal advice in these trying times. Our Traditional CLE Easy Pass is now available to be transitioned into an Online CLE Easy Pass, and the committee meetings have gone virtual. (As an added bonus—there are no challenges with parking!)

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...as we navigate this brave new world with masks, I offer the following reflections from my experience that I find applicable to the situations we face as lawyers and as members of the legal profession. While none of this has been easy, it has been made easier by the tremendous team we have working very hard to keep our association on course and offer our members a network of support to allow you to remain connected. I admit I have missed more than anything else as president the opportunity to meet with our members and connect on a personal level at our gatherings, which have been suspended to accommodate safety. Yet, I feel fortunate to have faced the challenges with you. With all of this, I close my final President’s Page with positivity. We have so much to be grateful for, despite the difficulties, when we choose

NEW

Welcome MEMBERS Khaled Abouseada Jennifer Anne Adair Trista Adams Carl A. Aveni, II Martin N. Baba Adam T. Barney Zeboney N. Barranada Shelly M. Bean Vladimir P. Belo Adam R. Bennett Rebecca Bradley Sam G. Brinker Rebecca K Brown Sharayera Bridjette N. Brown Jon M. Browning Adam G. Burke Amanda Burton Kevin Callinan Lindsay N. Cardwell Evan C. Cochran Elizabeth Y. Collis Todd W. Collis Matthew Coon Catherine C. Costello D.Michael Crites Garry Thomas Davis Stephanie Bostos Demers Anita DiPasquale Caroline E. Diwik

Matthew Richard Dixon Heidi W. Dorn William Todd Drown Michael Brendan Dunlevy Lindsay F. Dunn Jodi Diewald Dyer Courtney Dygert Jeff W. Eaton Brandon Neil Edwards W. Joseph Edwards Matthew Eldridge Charles Elsea Amgad Fahmy Michael J. Ferrara Andrew M. Ferris Jill Fleishman Nancy E. Forman Kirsten R. Fraser Adrian L. Frederick Benjamin S. Friedman Christopher Gawronski Mark J. Gayetsky Michael D. Gefvert Jerri J. Gibson Christian Gonzalez Andrew S. Good Gilbert J. Gradisar Joshua A. Gropp Joshua D. Grossman

to use our most valuable asset—our minds—for the greater good and solve problems with new methods and tools but old resolve. So, as we embrace our future with the conditions we have, I encourage all of you to be ready to grow and look forward to the time when we meet again.

Amy Koorn, Esq.

Ohio Department of Youth Services amy.koorn@dys.ohio.gov

David D. Guerrieri Matthew Gutierrez Christopher M. Hammond Victoria Hanohano-Hong David Harbarger Kelli L. Hayes Lindy J. Hazel Brandon C. Hendrix Jan E. Hensel Thomas W. Hess Nicci H. Hicks Christen S. Hignett Mary Jo Hudson Chris A. Johnson Rebecca J. Johnson Brian D. Joslyn Marc T. Kamer Frederic R. Kass ZEINAB M. KASSAB Kevin Ross Kelleher Steven Andrew Keslar Jeffrey T. Kluesener Nancy Krueger Ian R. Labitue Robert J. Leon Drew Linnenbom John A. Lloyd Sarah E. Lynn Amanda Jean Mahoney Thomas H. Mallory, Jr. Tristan A. McCormick Andrew Meinert Jenifer Christine Merrill Beth M. Miller Summer A. Moses Robert W. Myers Lindsay M. Nichols Catherine L. Nicklas Jennifer Nimer Charles Whitney Noble Sarah J. Padgett Aubrey F. Patterson

Cynthia L. Peterson Kirstin Peterson Eric J. Plinke Sue Porter Katherine Rasmussen Jacqueline Rau Abigail Riffee Nicole Root Marcus A. Ross Jennifer L. Routte Melissa R. Santiago Patrick R. Schlembach William Joseph Schmidt Frank Schuckmann Jennifer A. Schuster Frederick A. Sewards Erin Rose Shaeffer Justin C. Sheridan Myrl Howard Shoemaker Rachel E. Shonebarger Jason B. Sims Philip K. Stovall Christopher Stroeer Andrew P. Swary Scott S. C. Thomas Maurice Thompson Tena M. Thompson Dustin G. Torres Steven J. Umaña Stephen Vamos Julie M. Vore Cody L. Weisbrodt Nathaniel Zachary West Courtney M. White Christina Wieg Karen A. Winters Heather A. Yarbrough-Carrier Jeremiah C. Young Stephanie Zwerner


A Message from the Executive Director

Staying Connected. Staying Relevant.

Staying Strong. by JILL SNITCHER

Working remotely has, until now, been a nice option when balancing work and life. Suddenly, however, working remotely has become a way of life, forcing us to balance work and life in a whole new way. It’s participating in Zoom meetings while kids imitate TikToks in the background (in between study sessions, of course); it’s trying to stay relatively active

in the confines of your own home, including walking up and down the steps while on a conference call; it’s trying to figure out and respect when your colleagues are on the clock in order to accomplish your own set of tasks; it’s trying desperately not to get sucked into the latest online sale or keto recipe that pop up on my google searches; and it’s learning to communicate in better, yet different, ways. It’s about staying connected, staying relevant and staying strong.

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These times force us to get creative; to rethink what we do and how we do it; to evaluate what’s truly important; and to remember why we do what we do. The Columbus Bar Association remains strong amid crisis. We are fortunate that the CBA has such diversified business services that allow us to thrive. Surety bond and insurance sales are strong; continuing legal education is 100 percent virtual, with fresh content on important topics; we continue to connect consumers in need of legal services with our lawyers; committee programming is being delivered via Zoom; notary training is being delivered online; and we’re developing new programs to keep members engaged during this unprecedented time, including our recent Bench Bar Conversations designed to keep lawyers apprised of changes in court operations. The physical office facilities remain closed to outside participants through June (and maybe longer). The CBA team is working remotely and have done a terrific job of adapting. Meetings and events through June have been canceled or rescheduled, including the CBA Annual Meeting (which has been rescheduled for Sept. 25). As with most companies, we’re closely watching cash flow. Demand for meeting space and certified court interpreters has decreased, and many of our members have simply not been in their offices to process payments. We’re working hard to alter our operations to minimize expenses on the assumption that it is entirely possible we may not be back to full operations anytime soon. Unfortunately, all of this means we have had to lay off three members of the CBA Team. These are tough decisions - losing a staff member is like losing a member of our extended family. These are inimitable times for sure. We’ve seen weakness and strength; desperation and inspiration; prosperity and poverty; innovation and complacency; new businesses emerge, and old businesses collapse.

These times force us to get creative; to rethink what we do and how we do it; to evaluate what’s truly important; and to remember why we do what we do. We remain true to our core purpose: we help lawyers be more successful. Everything we do is designed to enhance and inspire the continued advancement of our members. Why? Because, better lawyers deliver better legal services; and better legal services improve our community. The Columbus Bar is home to some of the best and brightest legal talent, who are providing essential legal services to individuals, corporations, and government agencies; helping people persevere in the face of adversity; advising clients how to manage risk; and setting policy that will guide the course of our future. Now, more than ever, we need to stay connected. There has never been a more important time to be a part of something greater than yourself. The Columbus Bar is your connection to the profession, where we lean on each other and learn from each other. Whether you are working remotely or onsite, the Columbus Bar will be here to help you thrive. We’re making our facilities more conducive to social distancing; we’re developing systems to strengthen our virtual capabilities; and we’re creating opportunities to stay connected even while we’re apart. As always, please contact me anytime to let me know how the Columbus Bar can help you be more successful.

Jill Snitcher, Esq.

Columbus Bar Association jill@cbalaw.org

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Bar Insider

How Our Inner

“Press Secretary” Tells Delusional Stories bY Mark Kitrick and Mark Lewis

We listen to the President’s Press Secretary with skepticism. We’re skeptical because we know the Press Secretary’s job is to justify the President’s policies and decisions. The Press Secretary, no matter how dubious the President’s decision, will always defend it. Not just defend it, but instead find ways to praise the decision. The Press Secretary is trying a lot harder to “look” right than “be” right. Is the Press Secretary aware of this? Does she see herself as a cynical manipulator, a media savvy wordsmith who cares more about appearing right than actually being right? Not if she’s like you and me. Like us, her moral intuitions come first, and her strategic reasoning comes second. The truth is that

our reasoning mind is more like a politician who wants votes than a scientist who wants truth. But we don’t so easily see this about ourselves. Instead, we believe we are rational, objective and fair-minded in our beliefs. We use reason and evidence, we tell ourselves, to reach conclusions about our most important beliefs, such as politics, religion and morals. Those with different beliefs, on the other hand, fail to reason as well as us. They’re emotionally driven to their conclusions. They ignore the facts. They just don’t get it. This is our own personal, intrinsic Press Secretary at work. Our inner politician. And our internal Press Secretary is almost always at work when we think

To counter the overwhelming influence of our inner Press Secretary, we should invite a small crowd of cognitively diverse, good-natured skeptics to the table where we might find, as the saying goes, two (or more) heads really are better than one. 8 | Columbus Bar L aw yers Quarterly Spring 2020


and act in the world, especially when we make judgments about right and wrong. In fact, robust research in cognitive science reveals five humbling features about how our minds really function: 1. Our conscious reasoning works like an inner “press secretary” who reflexively justifies all that we say and do. 2. Our inner “press secretary” covers up our white lies and routine mistakes so effectively that we convince even ourselves that we’re honest and error-free. 3. Reasoning can take us to any conclusion we want. When we want to believe something, we ask ourselves “Can I believe it?” But when we don’t want to believe something, we ask ourselves “Must I believe it?” We answer yes to the first, and no to the second. 4. We’re all obsessed with what others think of us, whether we acknowledge it or not.

5. We’re “groupish” in moral and political matters, which means that we use our reasoning to support our group. Our reasoning is motivated. It is confirmatory, not disinterested. These findings force the uncomfortable conclusion that reason is not all it’s cracked up to be. In fact, our faith in the power of reason may be something of a delusion. Neuroscientist Jonathan Haidt reaches this conclusion in his book, The Righteous Mind: Why Good People Are Divided by Politics and Religion (Pantheon 2012). He says that our faith in reason is naïve and misplaced. Haidt and other moral intuitionists caution us to be wary of the idea that reason is an entirely noble, god-like attribute of humans, an attribute that leads us to moral truth. If that were the case, then moral philosophers should be more virtuous than the rest of us. They’re not, as history has repeatedly shown us.


So, says Haidt and others, anyone who values truth should stop worshipping reason. The distinctively human ability to reason developed not to find truth, but instead to help us argue, persuade and manipulate in social settings. Under this evolutionary view, reason is an adaptation that promotes our survival, not truth. Putting aside for the moment whether this evolutionary account of reason is itself true, let’s consider the implications of Haidt’s conclusion for the legal profession. Does it mean we throw out reason and simply “go with our gut?” Well, in certain situations, such as interpersonal judgments about credibility and character, the answer may be “yes,” according to researchers. But the larger point is simply that we must be very careful about any one individual’s ability to reason. We should be careful about individual reasoning because each of us, left to our own unchecked rationality, will just find evidence to support the position we already hold. Such confirmation and self-serving biases are almost insurmountable. As individuals we’re simply not that good at being openminded, truth-seeking reasoners. We intuitively care too much about our own self-interest and reputation. But in diverse groups, where we challenge and test one another’s evidence, we can produce better reasoning that comes closer to the truth. To counter the overwhelming influence of our inner Press Secretary, we should invite a small crowd of cognitively diverse, good-natured skeptics to the table where we might find, as the saying goes, two (or more) heads really are better than one. Such cognitive diversity embraces multiple perspectives, opens debate on alternative solutions, and promotes counterarguments to the all-powerful inner Press Secretary. What’s more, diverse groups usually outperform their homogenous counterparts, whether on the scale of the small law firm or the city or the entire ecosystem. History persistently teaches us that cognitive uniformity leads to stagnation or, worse, death.

At the same time, even within cognitively diverse groups we must always guard against conformity and common incentives to avoid the well-known “group think” phenomenon. We must not surround ourselves only with like-minded people. We must seek out different views; we must embrace dissent. In doing so, we might find an effective truth-test to our persistent inner Press Secretary who spins selfjustifying, confirmatory stories. The humbling discovery of our inner Press Secretary can also summon us to better storytelling models for legal professionals. It properly reframes the recurring fear that narrative or rhetorical prowess improperly bends the truth in service of advocacy. There is good reason for this concern. We know that our minds are, to a large extent, intrinsic story generators that seek mostly self-serving and confirmatory narratives. With this awareness, we can be doubly sure to check our use of storytelling techniques in legal writing and problem solving. In other words, we can think about our own thinking to improve accuracy and realitytest our stories. We can also honestly face both sides of the rhetorical coin. We are uniquely selfaware storytelling animals who unconsciously spin yarns while simultaneously enjoying the capacity to test the truth of those stories by seeking a diverse, skeptical audience. Keep telling stories. But also be sure to keep checking those stories by inviting others to challenge and maybe even re-write them.

Mark M. Kitrick, Esq.

Mark D. Lewis, Esq.

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

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®


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. Davis, Op. No. 2019-Ohio-1314, Decided April 10, 2019. (Failure to supervise staff member who embezzled; public reprimand) David William Davis of Bridgeport, OH was a part-time judge on the Belmont County Court and a bankruptcy trustee. His bookkeeper at his private practice was convicted of stealing funds from Davis’ trust account ($185,365.75 between 2003 and 2012). When his bookkeeper left in 2012 and Davis merged his practice with another firm, he audited his records and discovered large amounts of money missing from both his trust and operating accounts. Davis filed a police report and the Attorney General’s office conducted a forensic audit. This resulted in the prosecution of Davis’ former bookkeeper. Davis was charged with misconduct based

on his failure to perform a monthly reconciliation of his trust account, a violation of Rule 1.15(a)(5), and his failure to adequately supervise his staff, a violation of Rule 5.3(b). The Board found there were no aggravating factors in the case and several mitigating factors, including Davis’ cooperation, his use of personal funds to make up the shortfall in his trust account and his good character and reputation in the community. The Board found a public reprimand was the most appropriate sanction to impose in this case, but noted that while delegation of work to nonlawyers is essential for an efficient law office operation, such delegation cannot be “tantamount to the relinquishment of responsibility by the lawyer.”

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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. 2. Columbus Bar Association v. Winkfield, Op. No. 2019-Ohio-4532, Decided Nov. 6, 2019. (Neglect of client matters; failure to establish clear contingent fee agreement; indefinite suspension) Lawrence Winkfield of Columbus was charged with misconduct involving neglect of one client (Rules 1.3 and 1.4(a) (3) violations), failure to establish a clear contingent fee agreement with two other clients (Rules 1.5(b) and 1.5(c)(1) violations) and failure to monitor and reconcile his trust account (Rule 1.15 violation). This was Winkfield’s fourth discipline case and he was under the supervision of a monitor at the time these new violations arose. The case went to hearing before a three-member panel, which found violations and recommended a two-year suspension, with the last 18 months stayed on conditions. The Board also recommended an additional two years of monitoring upon reinstatement. The Court accepted the Board’s findings of violations but held that suspension for a definite term was not appropriate in this case. It said that Winkfield did not present any evidence in favor of a lesser sanction and that he tried to shift the blame for his conduct to Relator and his former monitor. The Court held, by a four to three majority, that Winkfield should be suspended indefinitely and reinstated on

specific conditions. Three Justices dissented from the majority decision based on Winkfield’s history of ethics violations. They would have voted to permanently bar Winkfield from the practice.

3. Cincinnati Bar Association v. Begovic, Op. No. 2019Ohio-4531, Decided Nov. 6, 2019 (Failure to register association with suspended attorney; assisting in unauthorized practice of law; failure to disclose lack of malpractice insurance; failure to obtain client’s informed consent; one-year suspension with six months stayed) Michael Begovic of Cincinnati was admitted to practice in November 2016. The Cincinnati Bar Association charged him with eight counts of misconduct, all of which arose during Begovic’s four-month association with Rodger W. Moore, from January to May 2017. He left Moore as a result of the investigation begun by Relator. Begovic responded to a website ad while in law school for an entry-level position with Rodger Moore. During the second interview, Moore disclosed that he was a suspended attorney and that Begovic would be working as a contractor for the Moore Business

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Advisory Group and not as an employee of Moore’s firm. Begovic went to work in a Cincinnati office called “Law Offices of Andrew Green and Rodger Moore.” During his association with Moore, Begovic filed substitutions of counsel in many cases in which he identified himself as working for the “Moore Law Firm” or the “Law Offices of Rodger Moore.” In various cases, Begovic worked with Moore, who participated in conferences, wrote emails and conducted settlement negotiations, all without identifying himself as a suspended attorney. Begovic failed to communicate with one of Moore’s clients, allowing Moore to continue to handle all client matters. Finally, Begovic received a fixed salary for his work with Moore and did not communicate with clients about his fees or the status of client accounts. Those matters continued to be handled by Moore. As a result, Begovic was charged with violations relating to the lack of informed consent from clients about Begovic’s salary arrangement with Moore and violations relating to sharing legal fees with a non-lawyer. The matter went to hearing, where Begovic admitted to all eight violations. The panel reviewed mitigating factors, such as Begovic’s lack of experience and his lack of a selfish motive, but also found aggravating factors such as Begovic’s failure to accept responsibility, failure to appreciate the wrongful nature of his conduct and the harm caused to the public by his assistance in Moore’s unauthorized practice of law. The panel recommended a one-year suspension with six months stayed on conditions. The Board made the same recommendation to the Court, which held that Begovic was suspended for one year, with the last six months stayed on conditions.

4. Cleveland Metropolitan Bar Association v. King, Op. No. 2019-Ohio-4715, Decided Nov. 19, 2019 (Felony conviction; dishonesty and fitness to practice; indefinite suspension) Matthew King of Cleveland was suspended on an interim basis in 2016 after a felony conviction for money laundering. The Cleveland Metropolitan Bar charged him with multiple ethical violations arising out of that

conviction. The parties entered into stipulations on some of the counts and went to hearing on the remaining charges. The Board considered the stipulations and evidence and issued a report finding that King committed the charged misconduct. It recommended that King be indefinitely suspended. Relator objected to this recommendation and argued that King should be permanently disbarred. The Court reviewed the facts and found that King agreed to participate in a scheme in which an FBI informant recruited King to form a corporation for the purpose of laundering drug money. King accepted $20,000 in marked bills and told the informant that he would deposit the funds in his trust account. However, King never incorporated an entity and did not deposit the funds into his trust account. Instead, over a period of several weeks, King returned the $20,000 in smaller payments to the informant, and also wrote a check from his personal account for $2,000 which was cashed by the informant. King went to trial on the criminal charges and was convicted. He served 22 of his 44-month prison sentence. The parties stipulated that King’s conduct constituted violations of Rule 8.4(c) (prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation) and Rule 8.4(h) (conduct that adversely reflects on a lawyer’s fitness to practice). The Court then reviewed mitigating factors such as other penalties imposed on King for his conduct, his participation in alcohol and drug rehabilitation programs, other disorders and emotional stresses on King and the compelling testimony of a Common Pleas Judge who testified about King’s talent as an attorney and his ability to resume the practice of law. The Board found one aggravating factor, that King acted with a dishonest or selfish motive. While the Board found that King had proposed the plan to launder drug money, he withdrew from the scheme before it was implemented. The Court overruled the Relator’s objections to the Board’s recommendation of indefinite suspension. It found that while King engaged in a serious crime, based on “the significant mitigating evidence before us, we believe that King may be able to rehabilitate himself and once again establish that he possesses the requisite character, fitness and moral qualifications to practice law.” King was indefinitely suspended with no

14 | Columbus Bar L aw yers Quarterly Spring 2020


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credit for his interim suspension, and he will be required to demonstrate that he has completed the full term of his supervised release before he will be eligible for reinstatement.

5. Cleveland Metropolitan Bar Association v. Mariotti, Op. No. 5191, Decided Dec. 18, 2019. (Neglect of client matters; failure to limit representation; misrepresentations; one-year suspension, fully stayed) Mark Mariotti of Cleveland was charged with multiple violations stemming from his representation of clients in two separate cases. The charges included neglect in one of the cases, failure to limit the scope of his representation in the other case, failure to communicate with his clients, failure to deposit fees in his client trust account and failure to cooperate in the disciplinary process. Mariotti had two prior suspensions, both for

short periods of time and based on not having enough CLE credits and failing to register for the 2005-07 time period. In one of the counts filed in the new complaint, Mariotti agreed to represent a client facing eviction, but failed to appear at a hearing at which a money judgment was entered against his client. He then failed to inform his client that a motion for relief was denied and that the client had the right to appeal. In the other case, Mariotti was engaged to represent a criminal defendant in a case pending in Cuyahoga County and had discussions with the client about representing her in a related criminal case pending in Geauga County. Mariotti did not attend a bond hearing in the Geauga County case and the client obtained other representation. Mariotti failed to deposit the fee received from the client in his trust account. He did not have a written agreement with the client or inform her that he did not carry malpractice insurance. Finally, Mariotti failed to respond to written grievances filed against him and only did so after Relator served him with a subpoena. The parties stipulated to four aggravating factors, including prior suspensions,

15 | Columbus Bar L aw yers Quarterly Spring 2020


engaging in a pattern of misconduct, committing multiple offenses and an interim suspension that was imposed for his failure to cooperate in the proceeding. The Board also found that Mariotti acted with a dishonest or selfish motive. The parties suggested an appropriate sanction was a one-year suspension, fully stayed, on the condition that Mariotti complete additional CLE training in law office management and serve a one-year period of monitored probation. The Board further found that Mariotti lied to one of his clients about the status of a case, which normally means an actual suspension from the practice. Here, the Board found that Mariotti’s misconduct, which involved his failure to define the scope of his representation, his neglect of a client matter, his failure to reasonably communicate with his client, his failure to deposit an unearned fee into his client trust account and his false assurances to a client, all did not rise to the level of misconduct that warranted an actual suspension. As a result, the Court accepted the Board’s recommendation of a one-year suspension, fully stayed, with additional conditions.

6. Disciplinary Counsel v. Scott, Op. No. 2019-Ohio-5194, Decided Dec. 18, 2019. (Misdemeanor conviction; illegal conduct; conduct involving dishonesty; one-year suspension, fully stayed) Terrence Kensley Scott of Columbus was charged with misconduct based on a UPC label- switching scheme in which he placed cheaper bar code labels on expensive items. As Scott was leaving a Walmart store he was stopped by an asset-protection officer who noticed that Scott’s purchases were for more expensive items than indicated by the UPC labels. Scott refused to stop and was tasered by the officer. Scott pled guilty to a misdemeanor count of criminal mischief and received a suspended 10-day jail sentence and a fine. The parties stipulated on two counts of misconduct, illegal conduct that adversely reflects on a lawyer’s fitness to practice and conduct involving dishonesty, fraud, deceit or misrepresentation. The Court reviewed similar cases to determine the proper sanction. It found one aggravating

factor, Scott’s dishonest and selfish motive, and several mitigating factors, including the lack of any prior disciplinary record, his self-reporting of the conviction, his cooperative attitude, other sanctions through the criminal process and letters submitted by others to attest to his good character and reputation. The Relator recommended a one-year suspension, fully stayed, and the Board recommended a six-month suspension, also fully stayed. The Court found similar cases resulted in suspensions for six months and 18 months, and decided this case fell squarely between them. The Court suspended Scott for one year, fully stayed, on the condition that he engage in no further misconduct.

7. Columbus Bar Association v. Striff, Op. No. 2019-Ohio-5285, Decided Dec. 24, 2019. (Conduct involving dishonesty and fraud, failure to act with reasonable diligence; fraudulent checks, theft and failure to cooperate in investigation; indefinite suspension) Christopher Striff of Delta, Ohio was charged with multiple ethics violations that included his failure to act with reasonable diligence on behalf of bankruptcy clients, misrepresentations made to a tribunal, altering checks issued to him by bankruptcy trustees, theft by forging checks, burglary and failure to cooperate in an ethics investigation. Striff testified at hearing that he had been abusing alcohol and drugs for many years. Expert testimony indicated that his substance abuse problems contributed to his ethical and criminal conduct. Striff entered into an OLAP contract in 2019, after he was charged with these violations, and both Striff and Relator recommended that the appropriate sanction was an indefinite suspension. The Court analyzed the aggravating factors (dishonest motive, pattern of misconduct and harm to victims) and mitigating factors (no prior disciplinary record, full and free disclosure to the Board, other penalties in the form of criminal punishment and the existence of a disorder diagnosed by a qualified professional). The real issue determined by the Court was whether to

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accept the recommendation of indefinite suspension or permanently disbar Striff. The Court reviewed cases going both ways on sanctions and determined that Striff’s candid testimony and sincere remorse weighed against permanent disbarment. Striff was indefinitely suspended with reinstatement based on conditions that included his continued participation in substanceabuse counseling and following all recommendations made by his counselors.

of intent to file a formal complaint and three letters submitted to attest to Walden’s good character. The Board also noted that Walden had sought help from OLAP for depression and gave some credit to his efforts to seek treatment. The Court accepted the Board’s recommendation of a two-year suspension with the last 18 months suspended on conditions, including the completion of an OLAP evaluation and compliance with all treatment recommendations.

8. Disciplinary Counsel v. Walden, Op. No. 2019-Ohio-5287, Decided Dec. 24, 2019. (Failure to act with due diligence; failure to keep client reasonably informed; failure to comply with reasonable requests for information from client; conduct that is prejudicial to administration of justice and making false statement to tribunal; twoyear suspension with 18 months stayed)

9. Toledo Bar Association v. Bishop, Op. No. 2019-Ohio-5288, Decided Dec. 24, 2019 (Preparing an instrument providing a gift for the lawyer; conduct involving dishonesty; failing to disclose a material fact in a disciplinary investigation; twoyear suspension with one year stayed)

Derek James Walden of Columbus was charged with neglecting three client matters, failing to communicate with his clients, making false statements to a tribunal and failing to cooperate in disciplinary investigations. Walden filed civil complaints for all three of the affected clients, but in two of the cases he failed to respond to discovery requests, which led to motions to compel. In another case, Walden falsely represented to a judge that his client had not provided discovery responses, when in fact Walden had not stayed in touch with his client. All three cases were dismissed without prejudice, but Walden failed to notify his clients of the dismissals. The parties stipulated to various violations that included Walden’s failure to cooperate in disciplinary investigations until Relator served him with notice of intent to file a formal complaint. The Board reviewed the aggravating factors, Walden’s previous one-day suspension for failing to register, his pattern of misconduct, multiple offenses and his failure to cooperate in the disciplinary process. As mitigating factors, the Board found that Walden did not act with a dishonest or selfish motive, cooperated with the disciplinary process after he received notice

Jerry Bishop II of Toledo was charged with ethical violations by the Toledo Bar Association arising out of his representation of elderly clients, the Urbanskis, when he caused them to amend an annuity contract to designate Bishop’s wife and his son’s Boy Scout troop as contingent beneficiaries. After hearing, the Board found that Bishop committed four violations and recommended a two-year suspension with one year stayed. The evidence indicated that the Urbanskis signed a contingent beneficiary form to designate Bishop’s wife (using her maiden name) and his son’s Boy Scout troop as contingent beneficiaries. Later, PNC Investments sent a letter to the Urbanskis to notify them that they had not designated a primary beneficiary. A friend of the Urbanskis saw the letter, and after Mr. Urbanski died, filed a grievance against Bishop with the PNC letter attached. In response, Bishop did not acknowledge that he was involved in changing the beneficiary designation, but he did have Mrs. Urbanski execute a new form designating herself as the primary beneficiary and her estate as the contingent beneficiary on the account. At hearing, Bishop claimed to have no recollection of the original change of beneficiary form. He also claimed that his actions were permitted under Rule 1.8(c) (prohibiting a lawyer from preparing

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an instrument giving the lawyer or a person related to the lawyer any gift unless the lawyer was related to the client). Ultimately, Bishop admitted that the handwriting on the change of beneficiary form was his. The Board rejected Bishop’s claim that he had a close, familial relationship with the Urbanskis and also found his conduct violated Rule 8.4(h) (prohibiting conduct that adversely reflects on the lawyer’s fitness to practice), Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentations) and Rule 8.1(b) (failing to disclose a material fact in response to a disciplinary investigation). The Court reviewed the aggravating factors such as Bishop’s dishonest and selfish motives, his false statements and his failure to cooperate in the disciplinary process. It reviewed similar cases and accepted the recommendation of the Board. Bishop was suspended for two years with the second year stayed on the condition that he engage in no further misconduct.

10. Disciplinary Counsel v. Bruce, Op. No. 2020-Ohio-85, Decided Jan. 16, 2020. (Threatening criminal charges to gain an advantage in civil case; communicating with a party represented by counsel and attempting to require the withdrawal of a grievance as a condition to settlement; one-year suspension, fully stayed) Matthew Gilbert Bruce of West Chester, Ohio was charged with four counts of misconduct related to his efforts to collect money owed to him on a residential lease for property that he owned. Bruce entered into a lease with

an option to purchase by the tenants, who ultimately exercised their option and purchased the property. But, Bruce had not received lease payments for two months. After the closing, Bruce began sending threatening emails to the purchasers, which included a threat to file a police report and pursue a criminal charge. An attorney representing one of the purchasers called Bruce to put him on notice that he was representing the purchasers. Bruce responded to the attorney by threatening criminal litigation, and then filed a civil complaint against the purchasers. He continued to communicate directly with the purchasers. He eventually filed a criminal complaint against one of the purchasers and emailed a copy to the attorney for the purchasers and to the purchasers with an offer to drop the criminal charge in exchange for payment of a sum demanded. After many failed attempts to resolve the matter and after the criminal charge against the purchaser was dismissed, the parties reached a settlement that called for the purchasers to withdraw their grievance against Bruce. The parties stipulated and the Board found that Bruce’s conduct violated several of the Rules of Conduct, including threatening criminal charges to gain an advantage in a civil case (Rule 1.2(e) violation), communicating with a party who is represented by counsel (Rule 4.2 violation) and engaging in conduct that is prejudicial to the administration of justice (based on the attempt to require the withdrawal of a grievance) (Rule 8.3(d) violation). The Court found that Bruce acted with a selfish motive and committed multiple offenses; however, the Court also recognized that Bruce cooperated in the proceedings, was remorseful and accepted full responsibility for his misconduct. The Court accepted the Board’s recommendation and suspended Bruce for one year, fully stayed on the condition that he engage in no further misconduct.

Nelson E. Genshaft, Esq.

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

18 | Columbus Bar L aw yers Quarterly Spring 2020


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19 | Columbus Bar L aw yers Quarterly Spring 2020


Thoughts from a Once-Depressed Lawyer: Asking for Help is a Strength BY ANONYMOUS

Last Year I’m not ready to be open about this because I’m afraid of the repercussions, so I will remain anonymous. You see, depression isn’t treated the same as other illnesses. It carries a stigma with it. I graduated from law school and soon became an attorney who won more cases than lost. I’ve helped people get their homes back, saved some from domestic violence and assisted single mothers get the support they need for their children. I’ve accomplished much more than others at this point in my life. Yet, I find it difficult to celebrate my victories. I don’t believe I am as successful as others think I am. There’s a voice inside of my head that tells me that people are just being nice. I’m not really that successful. Anyone can do this.

cloud. I don’t want to feel this way. I miss the days of laughter and fun. Why can’t I get back to being me?

Today I have severe depression. It affects the way I think, and it’s a major burden on my life… but that doesn’t mean I can’t fight it. After staying in bed for three days straight, I decided I had to do something about my mental state before I hurt my family or my clients became victims of a negligent lawyer. I sought help, and it was worth it.

Some treat me as if I can just snap out of it, and that it’s all in my head. I wish that were the case.

Reluctantly, because I thought no one would ever be able to help me, I called the Ohio Lawyers Assistance Program. From the moment the friendly clinician answered the phone, I had hope. I told her how I found it difficult to be happy, to get out of bed and go to work, even though I used to love helping people. She listened as I spilled out all of the negative thoughts and inner feelings that I had kept inside for so long. Just being able to unleash those words was the first step in healing. She invited me in for an assessment, and I took the first available appointment.

Sometimes I think about suicide, but I know I would never go through with it. I couldn’t do that to my family. It would be so nice, though, to be able to relax and not feel as if I’m constantly in a relationship with a black

OLAP guided me through the tough journey of treating depression. There is no miracle cure for this mood disorder, but you can get through it with the right treatment plan. OLAP recommended that I see a

At most times, I loathe myself. I try to get back up, but fail, and that makes me feel even worse about myself. When I go home I isolate myself from everyone else. All I want to do is sleep so I don’t have to think.

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If you suffer from depression, you are not alone. Twenty-eight percent of attorneys struggle with some level of depression, and nineteen percent show symptoms of anxiety.i YOU ARE NOT ALONE. psychiatrist and a counselor. The psychiatrist assessed me to see if I needed to take medication, and I saw a counselor once a week for cognitive therapy, where I talked about my thoughts and the therapist taught me how to reverse my negative thoughts. After a year of cognitive treatment, I can say that I am now depression-free and am living a happy life. I can’t say it was easy, but it was worth it. OLAP did not forget about me after that first assessment. They made sure to check up on me at least once every two weeks. I also had to check in with them so that they knew I was following my treatment plan. Knowing that I had people fighting for me was also helpful in my recovery. Because OLAP is confidential, they did not have to disclose my depression to my employer, which eased my stress level about what my employer would do if they found out I was ill with depression. If you suffer from depression, you are not alone. Twentyeight percent of attorneys struggle with some level of depression, and nineteen percent show symptoms of anxiety.i YOU ARE NOT ALONE. Depression is an illness that needs medical treatment. It cannot be cured on its own. I hope that more people

begin to realize this. Most people living with depression are afraid to tell others about it in fear of being labeled as crazy or unstable. We need to educate the public about depression and how it needs to be treated as any other illness or disease. As lawyers, we work together to help clients, to change laws. It’s time we also work together to end the stigma of mental health.

#endthestigma Anonymous This article was provided by the Ohio Lawyer’s Assistance Program. OLAP offers Ohio lawyers CONFIDENTIAL treatment options. For more information, go to ohiolap.org or call (800) 348-4343 or (614) 586-0621. i

“The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” by Krill, Patrick R. JD, LLM; Johnson, Ryan MA; Albert, Linda MSSW in the Jan/Feb 2016 issue of Journal of Addiction Medicine, https://journals. lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_ Substance_Use_and_Other_Mental.8.aspx#P49.

Scott R. Mote, Esq.

Executive Director Ohio Lawyers Assistance Program smote@ohiolap.org


It’s a Small World

WHAT ARE YOU

SELLING Your Clients? by BRADLEY MILLER

When I mention the word “sales” to most lawyers, I usually get one of three looks in response. Sometimes I get a horrified look, like I just told them their child is ugly. Sometimes I get a look of indignation, as if the concept of sales is beneath lawyers, like the mud on the bottom of our wingtips. And sometimes I get a coy acknowledgment that “selling” exists but is not something that is discussed in polite company.

advertise. Sales was little more than an initial meeting with an engagement agreement being signed at the end (and sometimes not even a written agreement).

Sales is a dirty word to many lawyers, but it is an integral part of running a law practice. Selling is simply the act of persuading a prospective client to buy your legal services. Every law practice does it, whether you call it that or not. If you can’t convince people to buy your services you won’t be in business long, no matter how great a lawyer you are.

Clients don’t buy your time

Unfortunately, many lawyers are not very good at sales. We went to law school to be lawyers, not salespeople. In the past, a lawyer or group of lawyers could hang their shingle and expect new clients to soon start walking in the door. It was a seller’s market, the number of lawyers was relatively low and firms didn’t really need to

We are now in a buyer’s market, though, and clients have the power. Choice abounds. The number of lawyers continues to increase each year. Non-lawyer legal service providers offer alternatives to hiring lawyers for many legal issues. It is time for lawyers to acknowledge that we can’t just wait for clients to come to us—we have to sell our legal services. And—we mostly suck at it. When lawyers do try to sell their services, most try to sell one of two things: their time, or their experience.

You can’t sell time and clients can’t buy it. Time is a constant constraint, not an asset (or a cost). You can’t hoard time like emergency supplies. You can’t trade time to someone else like baseball cards. Time has no value.i As a constant, it is always moving forward. No matter how nicely you try to package six-minute intervals, you can’t sell time (what you are really trying to sell is the work that you do for the client during that time, but most lawyers don’t talk about it that way). Assuming that you could somehow sell time, clients aren’t buying. Clients don’t care how long it takes a

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Sales is a dirty word to many lawyers, but it is an integral part of running a law practice. Selling is simply the act of persuading a prospective client to buy your legal services. Every law practice does it, whether you call it that or not. lawyer or paralegal to perform a task, no more than you care how much time the plumber spends under your sink. The only time a client cares about is turnaround time; how long before the case is resolved, how long until the drain stops leaking. And in fact, the shorter the turnaround time, the more value to the client (and the more likely they are to hire you). How much work a matter will require from you is irrelevant to clients.

Clients don’t buy your expertise Much of the lawyer marketing out there is based around the experience of the lawyers, the cases won, or the awards and accomplishments received. Let’s face it: we lawyers like to talk about ourselves. If you take a look at the typical lawyer or law firm website, for example, there is a lot of talk about the lawyers and how great they are.

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While I have no doubt you are a great lawyer – after all, your website says so – most clients don’t care. Clients assume you are a good lawyer, or at least that you know the law. More important to them is whether you can solve their particular issue. Can you help prevent my ex-wife from pulling the kids out of their current school, as she recently lost her job and wants to move with the kids to live with her parents in Florida? Can you keep me from losing my driver’s license over my fifth OVI charge? Can you use your experience handling certain types of cases to show clients that you can handle their specific case? Sure. If you have been representing fathers in child custody matters for 15 years and know the specific laws that can keep their ex-wives from moving the kids out of state, that will differentiate you to a prospective client in that situation. But the experience needs to be tied directly to the client’s issue rather than a general statement of years of practice.

What do clients want? In order to be successful at selling your services to clients, you have to sell what the client wants. Clients aren’t looking for a lawyer; they are looking for a solution to a problem. It just so happens a lawyer can provide them with that solution. It is painful to admit it, but to most consumers of legal services lawyers are fungible (at least when initially searching for a lawyer). If you want a prospective client to buy from you over the lawyer down the hall, you need to be selling what they want to buy.

How to sell your services to clients First, you need to get beyond the belief that “selling” is a dirty word. Lawyers don’t think twice about taking a potential client out for a round of golf or dinner with the hope of winning their business. You may call that “business development,” but it is just as much selling as talking to a prospective client on the phone or during an initial meeting. If you have a legal solution that can help solve a prospect’s problems, you should want to sell that solution to every person with that problem. Second, selling is all about the buyer. Buyers have many options when it comes to getting help with their legal issues. You are asking someone to give you their hardearned money in exchange for your services. How do you convince them to do that? Try the following:

1. FOCUS ON OUTCOMES. Clients buy solutions to their legal issues. Lawyers are merely the conduits to those solutions. People can be motivated to act by one of two forces: the removal/ avoidance of pain or the gaining of pleasure.ii Most legal consumers seek lawyers to help them get rid of or avoid some sort of pain. It might be the threat of jail time. It might be the resolution of a lawsuit brought against them. Or it might be anxiety about whether a business deal will close. If you can speak to the prospect’s pain and how you are a solution to eliminate it, you now have the prospect’s attention. People will pay money if you can take away their pain.

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2. DON’T TALK ABOUT YOURSELF. People—and as lawyers we are no exception—like to talk about themselves. However, when you are trying to sell something you want the discussion all about the buyer. What is their current situation? What are their pain points? What outcomes are they trying to accomplish? The Greek philosopher Epictetus is credited as saying that we have two ears and one mouth, and so should use them in that proportion.iii That is definitely true when selling our legal services. Ask pointed questions and then let the prospect talk. Only talk about yourself if the prospect asks about you or the firm.

Reliable expertise

WE OWN IT.

3. SPEAK IN THE CLIENT’S LANGUAGE. One of the bad habits that we pick up in law school is the use of legalese and Latin phrases. Law school casebooks are filled with them, and they quickly find their way into our everyday conversations (much to the dismay of our significant others). There is a time and place for these words and phrases, but not in marketing materials or at an initial consultation. Nonlawyers (AKA “normal people”) don’t know what most legal phrases mean, let alone use them. When lawyers use Latin phrases in conversation, clients can get lost and confused. And that is the last thing you want when trying to convince someone to hire you.

4. USE EMPATHY.

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and trust you because you have created a safe place for them to exhibit their feelings, a prospect is more likely to hire you. i

Ron Baker is the godfather of value-based pricing for professional service firms. From https://www.linkedin.com/pulse/why-timesheets-focus-firm-leaders-wrong -things-ron-baker/ ii

Most legal issues come with a host of emotions for clients. For example, a party to a divorce might feel anger at their spouse, fear of not being able to maintain their lifestyle on a single income, rejection that their spouse no longer wants to be married to them, or embarrassment that they weren’t able to make their marriage work. Often, as lawyers, our clients unleash these emotions upon us. In these situations, clients are simply looking for someone to vent to. Acknowledging their feelings can help you foster a relationship with them. After all, people do business with those they know, like and trust.iv If they like you because you seem to understand their situation,

In Freudian psychoanalysis, the mind seeks pleasure and avoids pain. From https://en.wikipedia.org/wiki/Pleasure_principle_(psychology) iii

From https://dailystoic.com/two-ears-one-mouth/

iv

Bob Burg, from his book The Go-Giver. From https://www.entrepreneur.com/ article/245160

Bradley Miller, Esq.

Miller Law LLC brad@bradleymillerlaw.com

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Points of Practice

Caveat Emptor: How to Protect Your Record–And Your Case– From the Dangers of Artificial Intelligence by ANGIE STARBUCK

Stenographers are often referred to as “the person with that little machine.” While the technology behind “that little machine” is state-of-the-art and is continually improved upon, it’s really the human aspect of stenography that makes it the best method for capturing the spoken word and preserving the record of some of the most important cases in history.

In the past year alone, stenographers have played an important technological role with a seat at the Oscars, presidential impeachment hearings, Coachella Music Festival, presidential debates and just about any other important venue where words are spoken that need to be preserved or instantly viewed to provide access. Even with the modern advances of voice recognition software and automatic speech recognition, the

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With some legal cases valued in the millions of dollars, imagine if a digital audio file from a deposition got into the wrong hands and the audio file was manipulated in order to improve one’s legal position in a case. stenographic court reporter is still the highest standard for protecting your record in litigation. Some would even argue that the stenographic court reporter is the only person permitted by law to certify deposition transcripts in some states. Almost half of the states in our country require some sort of certification for stenographic court reporters in order for them to work in that state. Some states have their own licensing boards that regulate the court reporters’ activities. Stenographic court reporters are trained, highly skilled professionals who are impartial guardians of the record. They are there to protect your record and preserve testimony in cases that are extremely important to the parties involved. There is an unsettling practice occurring in the deposition industry, particularly in California and Texas. There are large court reporting corporations that will accept your deposition scheduling and will, without your knowledge or permission, send a digital recorder or videographer to record the testimony rather than a stenographic court reporter. These digital audio files are then uploaded to servers for unknown laypeople to transcribe the testimony. This practice is concerning on many levels. Let’s start with the most important issue: your client’s right to confidentiality. With digital audio files being uploaded to unknown companies, servers and transcribers, sometimes in other countries, there’s no guarantee of privacy or confidentiality for your client. Data mining is a major source of hacking today. Imagine the amount

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of information that could be mined from confidential deposition transcripts of patent cases, pharmaceutical development cases or governmental cases, to name a few. Digital files are also easily manipulated. Perhaps you’ve heard of the artificial intelligence company who produced a voice simulation of podcaster and comedian Joe Rogan.i The company itself states: “Clearly, the societal implications for technologies like speech synthesis are massive. And the implications will

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affect everyone. Poor consumers and rich consumers. Enterprises and governments.”ii These manipulated audio files (and video files) are also known as “deepfakes,” which are produced by sophisticated artificial intelligence programs. The American Bar Association held a panel discussion on this very subject in February at the ABA Techshow 2020, addressing how the “new deepfake culture can impact our relationship to information and the tools we use to work with it.”iii Panelist Sharon Nelson, president of Sensei Enterprises, Inc., a digital forensics, cybersecurity and information technology firm, said in an interview that deepfakes pose challenges for the legal community and it’s going to take some time to educate judges and the legal profession. “I believe in civics, and I believe in the rule of law,” Nelson said during the panel. “And deepfakes, if nothing else, do threaten the rule of law, because people no longer know what the truth is.”iv With some legal cases valued in the millions of dollars, imagine if a digital audio file from a deposition got into the wrong hands and the audio file was manipulated in order to improve one’s legal position in a case. Imagine an audio or video file being manipulated in a custody case or a divorce case to bolster one’s

position. Imagine a criminal in another country being given an audio file from a deposition to gain access to government intelligence, corporate trade secrets or intellectual property. In January 2020, the Federal Trade Commission held a workshop in Washington, D.C. about voice cloning technologies.v Their stated goal for the 4-hour workshop was, “to learn about this technology, its implications, and what can be done to confront the danger it poses.” FTC Commissioner Rohit Chopra stated in his opening remarks: “We all know the benefits of new technologies and the immense fortunes that they can shower on us and the companies that create them. But many of us are concerned about how these technologies are misused and abused. Today technology and data are weaponized by those who wish to do our country and our society harm.”

You can’t help but wonder, if the FTC and a digital forensics legal expert are looking at the dangers of artificial intelligence, automated speech recognition and voice cloning, isn’t this something we, as officers of the court, should be concerned about in the discovery phase of litigation?

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When a stenographic court reporter takes a deposition or court proceeding, their stenographic notes are the underlying proof of accuracy of that transcript. These stenographic notes cannot be altered or changed. The stenographic court reporter can also provide a realtime feed to counsel during the proceedings so they can instantly see the accuracy of the record. Once you take the unbiased human element out of court reporting, you could be opening up your law firm, yourself and most importantly, your client, to disastrous consequences down the road.

What happens when we work together?

Central Ohio is healthier.

So, what is the solution, and how can you ensure the testimony taken in your case is held to the highest standards that your client deserves? •

Make sure your deposition notice states that the deposition will be taken before a stenographic court reporter. When scheduling the deposition with your court reporting firm, be sure to specify that you only want a stenographic court reporter to cover the deposition. Be sure to double-check that you will have a stenographic court reporter when they confirm the setting closer to the deposition date. If you’re traveling to another state or city for a deposition, check with a court reporter or firm that you really trust to see if they can recommend a stenographic court reporter or firm in the location of your deposition. Be sure you are familiar with the rules in the venue your case is pending. There could be rules regarding objections to the officer before whom the deposition is taken. There could be rules regarding the validity or admissibility of transcripts that are not taken or certified by a Certified Shorthand Reporter in that state.

To assist your clients in fulfilling their charitable interest in health and wellness through the CMA Foundation, please contact: Weldon E. Milbourne 614.240.7420 wmilbourne@cmafohio.org

proceeding.” Your court reporter or court reporting firm should be as concerned about the importance of maintaining the confidentiality of your case as you are. Don’t be afraid to ask questions of the court reporters or firms you are using across the country. Make sure you have as much information as they do about the services provided. And, remember, there’s currently no technology available that can outperform a welltrained stenographer. i

https://youtu.be/DWK_iYBl8cA

ii

Dessa. (2019, May 15). medium.com. Retrieved from https://medium.com/dessanews/real-talk-speech-synthesis-5dd0897eef7f iii

Techshow, A. (2020). Retrieved from Techshow 2020: https://www.techshow.com/ sessions/red-pill-vs-blue-pill-how-deep-fakes-are-defining-digital-reality/ iv

Reynolds, M. (2020, February 28). Retrieved from ABA Journal: https://www. abajournal.com/news/article/aba-techshow-experts-warn-of-deepfake-threatsto-justice-system v

According to the National Court Reporter’s Association Code of Professional Ethics, the stenographic court reporter has a duty to “preserve the confidentiality and ensure the security of information, oral or written, entrusted to the Member by any of the parties in a

Federal Trade Commission. (2020, January 28).Federal Trade Commission. Retrieved from https://www.ftc.gov/ news-events/audio-video/video/ftc-voice-cloningtechnologies-workshop

Angie Starbuck

PRI Court Reporting, LLC Angie@priohio.com

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Points of Practice

The Ohio Condominium

Reserve Contribution Conundrum BY Robin Strohm Every condominium association in Ohio has a legal requirement to contribute a portion of the association’s annual budget to reserves in order to fund the maintenance, repair or replacement of the condominium’s capital items consisting of the common elements. These capital items normally include the roadways, structural and exterior elements of the buildings, recreational amenities and other physical assets of the condominium. The Ohio Condominium Act (Ohio Revised Code 5311) was updated in 2004 and includes language requiring condominium associations to make an annual reserve contribution. Board members for condominium associations have since had to navigate vague and confusing language concerning the annual reserve requirement. O.R.C. 5311.081(A) states, “Unless otherwise provided in the declaration or bylaws, the unit owners association, through the board of directors, shall do both of the following: (1) Adopt and amend budgets for revenues, expenditures, and reserves in an amount adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments, provided that the amount set aside annually for reserves shall not be less than ten percent of the

budget for that year unless the reserve requirement is waived annually by the unit owners exercising not less than a majority of the voting power of the unit owners’ association; (2) Collect assessments for common expenses from unit owners.” This statutory provision applies where the declaration and bylaws do not provide otherwise for reserves. It attempts to fill a void when there is no guidance from the governing documents and provides for an arbitrary minimum contribution when funding reserves. Most declarations and bylaws provide little guidance as to what the amount of the reserve contribution should be each year. Normally general provisions in the governing documents refer to a portion of the association’s annual budget funding a working capital reserve for normal operations or for maintaining reserves for over a one year period to fund major capital expenditures.

30 | Columbus Bar L aw yers Quarterly Spring 2020


The Ohio Condominium Act was updated in 2004 and includes language requiring condominium associations to make an annual reserve contribution. Board members for condominium associations have since had to navigate vague and confusing language concerning the annual reserve requirement. One possible interpretation of the statute is as long as the association is setting aside at least 10 percent of the association’s annual operating budget for a reserve contribution each year, the association is meeting the statutory requirement for funding the reserves and, if necessary, the association may levy a special assessment to make up for any shortfalls with capital expenditures. If the association is not going to contribute at least 10 percent to the reserves for that year, the board must then obtain a majority vote of the owners to waive the statutory reserve contribution. Another interpretation of the statute is the association must be funding the reserve account pursuant to a reserve study which outlines the future costs for repair or replacement of capital items based on the expected useful life of those assets. With this interpretation, if an association is not funding the reserves to that extent, a majority vote of the owners must be obtained

to fund the reserves in a lesser amount. Under this interpretation, a special assessment would not be permissible to fund the capital expenditures. It may be that, to some extent, both interpretations are correct, and until the statutory language is revised to provide more clarity and guidance as to what the annual reserve contribution requirement is, the courts will have to provide guidance on interpretation of the statute. The Tenth District Court of Appeals held that O.R.C. 5311.081(A)(1) did not prohibit an association from levying a special assessment without the approval of a majority of the owners. The Court’s rationale in Olentangy Condominium Association v. Lusk was that despite careful budgeting, the board could impose a special assessment if necessary.i

31 | Columbus Bar L aw yers Quarterly Spring 2020


In Attar v. Marine Towers East Condominium Owners’ Association, unit owners sued the association for breach of contract and breach of fiduciary duty to establish and maintain a reserve fund per the requirements of O.R.C. 5311. The owners also sought injunctive relief to prevent the association from levying a special assessment. The association’s bylaws state, “the Association shall build up and maintain a reasonable reserve for contingencies and replacement. Extraordinary expenditures not originally included in the annual estimate which may be necessary for the year, shall be charged first against such reserve.” This case includes discussion of the statutory requirement for funding reserves and the court’s interpretation that the bylaws do “otherwise provide.” Based on the language in the bylaws, the Eighth District Court of Appeals reversed judgment in favor of the association and remanded the case to trial court for further proceedings. This case calls into question whether a special assessment is permissible when there is a shortfall in reserves and how specific language in the governing documents for an association may be interpreted regarding reserve contributions.ii Proposed legislative changes to O.R.C. 5311(A)(1) in S.B. 289 will provide clearer guidance on the annual reserve contribution. The proposed change to the statute at this time is: “The unit owners’ association, through the board of directors, shall do both of the following: (1) Annually, adopt and amend an estimated budget for revenues and expenditures. The budget shall include reserves in an amount adequate to repair and replace major capital items in the

normal course of operations without the necessity of special assessments, unless either of the following applies: (a) the declaration and bylaws include language limiting the ability of the board of directors to increase assessments for common expenses without a vote of the unit owners; (b) the unit owners exercising not less than a majority of the voting power of the unit owners association, waive the reserve requirement in writing annually. (2) Collect assessments for common expenses from unit owners.” Until there are legislative changes to the annual reserve requirement or Ohio courts have settled the matter as to whether special assessments are permissible given language that may exist in the association’s governing documents, board members should take care in funding reserves with the use of a reserve study or independent engineer’s analysis of the future costs to repair or replace capital items and the useful life expectancy of those capital items. Board members should be mindful of the responsibility to fund reserves in an amount to avoid special assessments if at all possible and to pay close attention to the language in the governing documents about the reserve requirement. i

Olentangy Condominium Association v. Lusk, 2010-Ohio-1023, 2010 WL 927002 (Ohio Ct. App. 10th Dist. Franklin County 2010). ii

Attar v. Marine Towers East Condominium Owners’ Association, 2018-Ohio-3274, 2018 WL 3954170 (Ohio Ct. App. 8th Dist. Cuyahoga County 2018), appeal not allowed, 154 Ohio St. 3d 1445, 2018-Ohio-4962, 113 N.E.3d 553 (2018).

Robin Strohm, Esq.

Williams & Strohm, LLC r.strohm@wslawllc.com


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Bar Happenings Most of these photos were taken prior to the Governor’s Stay In Place order. While the CBA continues to operate remotely, we look forward to welcoming our members back in the near future!

Young Lawyers Zoom Meeting

Rock ‘n Bowl

Board of Governors Service Project

ary meeting CBA + OhioHealth Janu

Young Lawyers Holiday at Alvis House

Barrister Leadership Program and Board of Governors Happy Hour

LGBT Committee Valentine’s Day Event

34 | Columbus Bar L aw yers Quarterly Spring 2020

Small Firm/Solo Practitioners “Officeless” Holiday Party


Bar Happenings

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

SPRING 2020

may

12 may

13 may

14 may

15 may

19 may

21 may

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Wellness Conversation: Dangers of Chronic Stress (And The Things You Can Do To Take Control) • 12:00-1:00pm on Zoom Presented by Art Burns, Mindfulness Meditation Teacher and Transformation Coach, this conversation will explore the science of stress: where it comes from, what it does to our bodies, and how to reduce its effects. Email donna@cbalaw.org for the webinar link.

Live CLE Webinar: Electronic Document Retention & Production 1:30-3:00pm on Zoom • 1.5 CLE Hours (1.0 Prof. Conduct) A paperless office is becoming more of a reality, particularly when working remotely. Learn the ethical requirements of document retention; the rules requirements of document production; and hear eDiscovery caselaw when things go wrong. Register @ cbalaw.org/cle

Free Webinar on Technology & the Law: Electronic Document Management for Lawyers • 2:00-3:00pm on Zoom There are so many options for Electronic Document Management, where do you start? Paul Unger, Esq. (Affinity Consulting Group) will provide some guidance. Register @ cbalaw.org/pmc

Live CLE Webinar: Effective Remote Mediation Techniques 11:00am-12:00pm on Zoom • 1.0 CLE Hour This live CLE webinar will be presented by Robert G. Palmer, Esq. Register @ cbalaw.org/cle

Live CLE Webinar: Tips for Ethical Practice in the COVID-19 Era 1:30-2:30pm on Zoom • 1.0 Prof. Conduct CLE Hour This live CLE webinar will be presented by Thomas E. Zani, Esq., Deputy Bar Counsel, Columbus Bar Association. Register @ cbalaw.org/cle

Live CLE Webinar: Virtual Oral Arguments with Justice French 12:00-1:00pm on Zoom • 1.0 CLE Hours (with 0.5 Prof. Conduct) Justice Judith French (Ohio Supreme Court) will offer tips on presenting virtual oral arguments when a live appearance isn’t possible. Register @ cbalaw.org/cle

Wellness Conversation: How Gratitutde, Fun and Positive Intention Can Change Your Life • 12:00-1:00pm on Zoom Amy Armstrong, LISW, PCI Certified Parent Coach®, will provide inspiration and practical tips for allowing gratitude, fun and positive intention to color every day, even during unpredictable times. Email donna@cbalaw.org for the webinar link.


Spring ‘20: Health Care Law

HIPAA Compliance 2020 BY Lisa Pierce Reisz

Is Your Patients’ Health Information Secure? The Health Insurance Portability and Accountability Act of 1996, or HIPAA, established rules for maintaining the privacy and the security of protected health information, or PHI. PHI is any information that is held by a covered entity regarding health status, provision of health care or health care payment that can be linked to any individual. These rules apply to “Covered Entities,” which include health plans, health care clearinghouses (such as billing services and community health information systems) and health care providers that transmit health care data in a way regulated by HIPAA.

Although HIPAA is now over 20 years old, compliance in 2020 has never been more important. Today, most health care providers have completed the transition from paper records to electronic health records. Therefore, this means that health care providers must be prepared to protect the privacy and security of their old paper records as well as the protected health information contained in their electronic health records, or ePHI. Further, in light of the exponential proliferation of data, health care providers must be cognizant of the risks to data posed by their own use, collection and storage of ePHI. Thus, HIPAA compliance by health care providers has never been more important to protect the privacy and security of their patients’ information. As a preliminary matter, HIPAA compliance starts with a health care provider understanding the universe of its patient data. Health care providers cannot secure

36 | Columbus Bar L aw yers Quarterly Spring 2020


their patients’ data unless they can identify what types of data they have, where it is stored and who has access to it. In other words, a health care provider must determine where PHI is used and maintained in the organization, identify the various forms of PHI (i.e. paper, ePHI, verbal conversations), inventory all devices which collect and store ePHI and determine who has access to PHI. In addition, HIPAA requires that health care providers adopt the following compliance measures: •

• • •

Implementation of HIPAA Privacy Rule policies and procedures Implementation of HIPAA Security Rule policies and procedures Adoption of Notice of Privacy Practices Security Rule risk assessment Employee Training

The U.S. Department of Health and Human Services Office of Civil Rights, or OCR, is the federal agency that regulates, monitors

and enforces HIPAA compliance by health care providers. OCR has identified the following top ten pitfalls as the most common HIPAA compliance mistakes which Covered Entities make:

1. Impermissible Disclosures. HIPAA prohibits health care providers from disclosing PHI except as permitted or required under HIPAA. Recent impermissible disclosures have centered on the failure to obtain a proper authorization under HIPAA.

2. Lack of Business Associate Agreements. Health care providers must enter into Business Associate Agreements, or BAAs, with vendors to whom they disclose PHI in the course of the vendor performing services for or on behalf of the health care provider. These BAAs govern the uses and disclosures of PHI between a Covered Entity and their vendors.

Health care providers should review these common pitfalls and consider their own HIPAA compliance efforts. Health care data is at risk every day from phishing schemes, ransomware attacks and even simple employee error. 37 | Columbus Bar L aw yers Quarterly Spring 2020


3. Incomplete or Inaccurate Risk Analysis. Health care providers often fail to conduct an accurate and/or thorough risk assessment of the potential risks and vulnerabilities to the confidentiality, integrity and availability of ePHI. This risk analysis should evaluate the provider’s entire computer network and assess risks and vulnerabilities to PHI in the network.

4. Failure to Manage/Mitigate Identified Risks Health care providers often fail to mitigate risks that are identified in a risk assessment. For instance, adoption of encryption was included in a remediation plan but was never implemented by the provider.

5. Lack of Transmission Security. Health care providers fail to use encryption when transmitting ePHI, including emails, texting, application sessions and file transmissions.

6. Lack of Appropriate Auditing. HIPAA requires that health care providers implement mechanisms that record and examine activity in systems containing ePHI. Health care providers are required to review these audit records as part of their HIPAA compliance efforts.

access from obtaining such access. Termination procedures should be implemented to ensure that access to PHI is revoked when a workforce member leaves.

9. Improper Disposal of PHI. Health care providers must implement policies and procedures to ensure the proper disposal of PHI.

10. Insufficient Backup and Contingency Planning. Health care providers must implement adequate backup and contingency planning in the event of an actual disaster or emergency so as to ensure the continuity of its business operations and ultimately maintain quality patient care. Health care providers should review these common pitfalls and consider their own HIPAA compliance efforts. Health care data is at risk every day from phishing schemes, ransomware attacks and even simple employee error. Those providers who do not take HIPAA compliance seriously do so at their own peril. A health care provider which violates HIPAA can be subject to HIPAA civil monetary penalties totaling into the millions of dollars, state AG enforcement actions, state law negligence claims and loss of reputation. Thus, in 2020, health care providers should ensure that their HIPAA house is in order.

7. Software Patching Failures. Health care providers must continue to patch or appropriately support software on systems which contain ePHI.

8. Insider Threats. Health care providers must implement policies, procedures and access controls to ensure that all members of their workforce have access to ePHI and prevent those workforce members who do not have

Lisa Pierce Reisz, Esq.

Vorys, Sater, Seymour and Pease LPReisz@vorys.com

38 | Columbus Bar L aw yers Quarterly Spring 2020


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COLUMBUS BAR ASSOCIATION

LEGAL RESOURCE GUIDE Find this new (printable) resource at directory.cbalaw.org This guide is printable for quick reference

• • • • •

Mediators in central Ohio Forensic consultants/experts Attorney support services Links to central Ohio court rules Contact information for every court in Ohio

39 | Columbus Bar L aw yers Quarterly Spring 2020


Spring ‘20: Health Care Law

Disability Insurance: Protecting Your Income When You Need It Most by JOHN SUSIE

Group Disability Insurance Disability insurance has become an increasingly valuable part of a comprehensive employee benefits package. Not only does disability insurance fill the gaps in financial protection offered by other programs like Social Security, it is also a highly sought-after component of a competitive benefits package for employers who need to attract and retain talented employees. And while employees appreciate the peace of mind they receive as their income replacement benefits are being paid, employers can use the resources offered by insurers to manage time and productivity losses and find the most effective ways to return employees to work.

Employee-Sponsored Disability Insurance Employer-sponsored disability insurance coverage is an important benefit for every employee. For most workers, the ability to earn a living is their most significant

financial asset, and a lengthy period of disability can be devastating. Employers can help protect against that risk by providing group disability income insurance—a group insurance product that provides income replacement benefits to an employee should they become sick or injured and unable to work. Disability insurance protects workers and their families against financial catastrophe by helping them meet daily expenses—bills, mortgages and other expenses—and maintain their standard of living. Disability insurance replaces a percentage of pre-disability income if an employee is unable to work due to illness or injury for a specified period of time. Employers may offer short-term disability coverage, long-term disability coverage, or integrate both short- and long-term disability coverage.

Short-Term Disability Insurance Short-term disability coverage provides disabled employees with a specified percentage of pre-disability

... while employees appreciate the peace of mind they receive as their income replacement benefits are being paid, employers can use the resources offered by insurers to manage time and productivity losses and find the most effective ways to return employees to work.

40 | Columbus Bar L aw yers Quarterly Spring 2020


income—typically 60 percent—once their sick leave has been exhausted. The duration of STD coverage varies but is typically not more than six months. Conditions that may trigger payment of STD benefits include pregnancies, strains, sprains and minor surgeries. These conditions typically resolve quickly, and employees usually are able to return to work before the benefits are exhausted.

Long-Term Disability Insurance Long-term disability insurance provides income to workers whose earnings are interrupted by lengthy periods of disability. Long-term disability benefits usually begin when sick leave and short-term disability benefits are exhausted, and typically replace about 60 percent of pay. LTD benefits can continue for anywhere from five years to the remainder of an individual’s life. LTD is generally considered protection from the effects

of a catastrophic illness or injury, but claims are often a result of common ongoing medical conditions that worsen over time (e.g., heart disease, hypertension and diabetes).

The Columbus Bar Association has a group life and disability program customized for CBA member firms through one of the leading carriers in the industry. Join the many firms currently participating by contacting John Susie, Benefits Consultant at the CBA (614-890-7373, x129 or jdsusie@nubgroup.com).

John Susie

Health Enrollment Management Agency Benefits Consultant for the CBA jdsusie@nubgroup.com

Group, Individual and Family Health Insurance for Columbus Bar Association members

Group Health, Vision, Dental, Life, Disability

John Susie: (614) 890-7373 x129, jdsusie@nubgroup.com We have teamed up with HEMA to offer you a wide range of Health Insurance. John Susie is located in the CBA offices to provide personal help for your firm.

NEW! SENIORS CHOICE GROUP RETIREE MEDICAL PLAN

Is your firm paying for retiree health coverage? Do you have Medicare-eligible employees on your plan? The CBA is now offering Seniors Choice – a premier group medical plan for those age 65 and over participating in Medicare.

Individual and Family Health

John Dodd: (614) 890-7373 x114, john@nubgroup.com

In the complex, highly regulated health insurance world, the CBA wants to have an expert to assist members with their questions. (For individual employees and their families)

Medicare Plan Assistance

Suzanne McClain: (614) 448-1834, suzanne@nuMedicareAdvisors.com When the time comes to enroll in Medicare, you’ll have questions about all your options. Suzanne will meet you at your office, our office, or at the CBA offices to go over your options.


Spring ‘20: Health Care Law

Medical Negligence

Litigation:

Who Cares for the Healthcare Professional? by ANGIE BLEVINS

Most healthcare professionals find their jobs to be very rewarding and fulfilling. Physicians and nurses see patients at what is probably one of the most difficult days in their entire lives. Not only do they care for the sick and dying, they comfort and reassure worried loved ones at the same time. Healthcare professionals have a level of dedication that is not easily matched. There is no greater reward than what occurs between a healthcare professional and their patient, when their combination of unique scientific knowledge, clinical skill and compassion helps lead a patient to better health and improved quality of life. I believe this is what keeps the healthcare professional coming to work even under increasingly difficult times.

42 | Columbus Bar L aw yers Quarterly Spring 2020


As legal professionals, we don’t always recognize that we contribute to the distress healthcare professionals may feel when they are involved in medical negligence litigation. Healthcare professionals today face a myriad of traumatic situations such as injuries and death due to gunshot wounds, domestic violence situations, car accidents or from struggles with terminal illnesses. The number of healthcare professionals who have been verbally and/or physically assaulted by their patients or family members has risen steadily over the past five years. And, tragically, healthcare professionals are occasionally murdered by the very patients they work to treat. As a nurse in the 1980s, I was never fearful of my patients or their family members. I never went to work thinking that I might be assaulted or worse. Is it any wonder that our healthcare professionals today are reporting job dissatisfaction and burnout at increasingly alarming rates? Think about what these healthcare professionals see every day, then add the stress of an allegation of medical negligence which has led to litigation. As a litigation team member at The Ohio State University Wexner Medical Center, I’ve seen firsthand that being a healthcare professional today has grown to be inherently risky, it is impossible to avoid all risk and one can do everything right and still get sued. In initiating medical negligence litigation, it is the patient that determines the definition of a bad outcome, not the healthcare professional.

to pursue compensation. When a medical error occurs, most healthcare professionals and hospitals truly want to do the right thing. But doing the right thing typically means litigation due to the complexities of these cases. While the patient may be injured or die due to medical error, we must keep in mind that an injury or fatal error is something that also haunts the healthcare professional the rest of their lives. Healthcare professionals feel and express genuine sorrow for the patient and/or their family when a medical error occurs. But due to the nature of their profession, they must put the medical error in the rearview mirror as there are other patients that need them. What we must understand is that putting a medical error in the rearview mirror does not mean that the healthcare professional has resolved their feelings about the error and unfortunate outcome for the patient.

It is tragic when a medical error causes injury or death to a patient. And it is important that our legal system provides patients and/or their families with the ability 43 | Columbus Bar L aw yers Quarterly Spring 2020


When a complaint for medical negligence is served to the healthcare professional, we need to be cognizant that a bandage is being ripped from an emotional wound. The legal professional may encounter a physician or nurse who is shocked, angry, sad or anxious upon receiving the news of litigation, yet they are expected to carry on just as the patient and/or family must do. As legal professionals, we understand that a death or injury from a medical error can turn the life of a patient and/or family upside down. But we should not lose sight of the fact that the healthcare professional may be struggling as well. As legal professionals, we don’t always recognize that we contribute to the distress healthcare professionals may feel when they are involved in medical negligence litigation. Litigators can cause stress for the healthcare professional with something as simple as notifying them of litigation by impersonal email, or taking the “scorched earth” approach during a deposition or at

trial. Litigation is by design adversarial and very difficult on all the parties. While we try to make sure that the patient and/or patient’s family is receiving support throughout the litigation process, the same support is not always extended to the healthcare professional. So who takes care of the healthcare professionals during litigation? In the current environment, I can honestly say that not all healthcare professionals receive emotional support immediately after a medical error occurs. Almost none receive support when litigation is filed. While legal professionals are not psychologists, there are things that we can do to support the emotional well-being of healthcare professionals involved in medical negligence litigation. If at all possible, we should never notify a healthcare professional of a medical negligence action by email. It is felt that legal professionals should start building a solid attorney-client relationship with the healthcare professional with a face-to-face notification

44 | Columbus Bar L aw yers Quarterly Spring 2020


meeting. Delivering the complaint in person, when possible, will allow the healthcare professional to ask questions immediately, gain some understanding of the legal process and facilitate a trusted working relationship. Development of a good working relationship between the healthcare professional and the litigation team is critical to promoting absolute candidness about the circumstances that led to the litigation. I would encourage the legal professionals who are deposing or cross-examining healthcare professionals to be respectful and just ask questions to get to the facts. There truly is no need for the accusatory or hostile questioning of a healthcare professional. It is just beating up a healthcare professional who has probably already beat themselves up enough. Medical negligence litigation can accentuate a healthcare professional’s feelings of sadness, sorrow and isolation. It is critical that legal professionals take time during the initial meeting to ask the healthcare professionals that we represent how they are doing. It is absolutely permissible to acknowledge the healthcare professional’s emotions regarding this situation. Gently ask how they have coped with difficult situations in the past as their response will give you some idea of their resilience in the current situation. Those who have struggled to cope with difficult situations in the past may very well

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lack the coping skills to handle the adversity of litigation. If you feel a healthcare professional is struggling, please don’t hesitate to offer assistance in making a connection to an Employee Assistance Program, a hospitalbased support program, or a licensed therapist or counselor. If you are legal counsel for a hospital system without the necessary support services for the healthcare professional, please don’t be shy about making a recommendation that they start a program. A hospital psychologist recently said to me during a conversation about healthcare professional well-being, “Do you want to be treated by a healthcare professional who is ill, or a healthcare professional who is well?” It is inevitable that we will all need healthcare services at some point in our lives, and I suspect

we would all want our healthcare professionals to be well.

Angie S. Blevins, RP, OSBA, CPHRM The Ohio State University

45 | Columbus Bar L aw yers Quarterly Spring 2020


Spring ‘20: Health Care Law

Service is the Connection

Between CBA and OhioHealth BY LINDSAY FORD ELLIS

Last fall, Columbus Bar Association executive director, Jill Snitcher, approached me with a novel idea. She asked, “Would OhioHealth be willing to partner with the CBA by serving as the host of several health care law committee meetings?” When I asked Terri Meldrum, senior vice president and general counsel for OhioHealth, about the idea, she did not hesitate and enthusiastically agreed. At first blush, the Columbus Bar Association and OhioHealth would not necessarily seem to be natural partners. The CBA is a diverse community of nearly 5,000 central Ohio legal professionals. OhioHealth is a nationally recognized, not-for-profit, charitable, health care system. OhioHealth has been recognized as one

of the top five large health systems in America by IBM Watson Health™, an honor received six times. OhioHealth has 29,000 associates, physicians and volunteers, and a network of 12 hospitals, 200+ ambulatory sites, hospice, home health, medical equipment and other health services spanning 47 Ohio counties. Although the organizations are vastly different, they are aligned in their missions of service. The mission of the CBA is to strive to be the leader in providing excellent, innovative and cost effective services to members of the legal profession and the general public in central Ohio. Through the active involvement of a broad and diverse membership, the CBA focuses on professionalism, education, advocacy and community service in order to advance the justice system for all. The mission of OhioHealth is to improve the health of those we serve. The vision of OhioHealth is to be a place where people want to work, where physicians want to practice and,

Service was front and center in our minds as our office worked with the CBA to put together a threepart series to show how attorneys who practice in the health care industry provide excellent legal service to their clients. 46 | Columbus Bar L aw yers Quarterly Spring 2020


most importantly, where patients want to go when they need health care services. Service was front and center in our minds as our office worked with the CBA to put together a three-part series to show how attorneys who practice in the health care industry provide excellent legal service to their clients. We kicked off the first part of the series by featuring the OhioHealth Office of General Counsel. And what an incredible launch to this partnership! The room was filled to capacity with health care legal experts throughout central Ohio. As attorneys in the health care industry, everyone in the room could understand how critical and challenging our roles as inhouse counsel are in providing excellent legal service to a complex organization.

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Moderated by Meldrum, the panel also included Travis Hubble, Mark DeCastro, Emily Root and Michael Gross, who are all part of the OhioHealth legal team. During the discussion, we provided our audience with a snapshot of the

structure of the Office of General Counsel. We also showcased our office’s role at OhioHealth and how we strive to provide the best legal expertise to our organization. The discussion included a summary of our backgrounds and the different skillsets we bring to our roles. We

47 | Columbus Bar L aw yers Quarterly Spring 2020


highlighted OhioHealth’s commitment to diversity and inclusion. We discussed OhioHealth’s addition of “inclusion” as a core value. We talked about the demands and expectations of inhouse counsel for a high-performing organization. Specifically, we addressed our approach to innovation and changes in the health care industry. As the legal experts for our organization, we are required to stay up to speed on proposed regulations and new health care laws so that we can provide accurate counsel to our clients. Most importantly, we discussed that our approach to responding to our client is one of service. We are in our roles at OhioHealth to serve the organization so that our associates can provide the best health care service to our community. The second part showcased the partnerships that inhouse counsel for a health care system have with their outside counsel. The panel, moderated by Valerie Jama, the Health Care Law Committee Chair, included Erin Davis Shedd, OhioHealth, Jennifer Nelson Carney, Bricker & Eckler, LLP, Natasha Davis, Nationwide Children’s Hospital, and Lisa Pierce Reisz, Vorys, Sater, Seymour and Pease LLP. The panel discussed how in-house counsel relies on outside counsel for legal support to meet their fast-paced needs. The panel also highlighted the importance of having strong relationships so that outside counsel has an understanding of the client’s culture and organization. This understanding allows

outside counsel to better meet the client’s needs and provide sound legal advice. The final part will feature OhioHealth health care executives and how they rely upon and work with the Office of General Counsel, moderated by Keith Hartzell, Vice President and Deputy General Counsel. As discussed in the first panel, OhioHealth is a complex and large organization, and the health care executives rely on the Office of General Counsel to provide sound legal advice. The common denominator of each committee meeting has been service: service of in-house counsel to their client organization, service of outside counsel to their in-house counsel, and service of in-house counsel to the health care executives and leaders. As we wrap up our series, I have learned that two organizations such as the CBA and OhioHealth that seem completely different on their face are actually very closely linked to one another with the common mission of both being service to the community.

Lindsay Ford Ellis, Esq.

OhioHealth Lindsay.FordEllis@ohiohealth.com

48 | Columbus Bar L aw yers Quarterly Spring 2020


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Student Section: Observations from Law Students

The Greatest

Professor by LIZ HELPLING

I go to an amazing law school and am incredibly blessed to be surrounded by faculty who are the best in their field. They are scholars and practitioners, widely published and widely respected, who are just as captivating one-onone as they are in front of a crowded classroom. They are, in turns, demanding and compassionate. They are brilliant, experienced and eloquent. Every semester, I send my parents and my fiancé a “First Day of School” report, including hyperlinks to the university bio pages for each of my professors. Every semester, they are shocked and amazed by the caliber of the people I am lucky enough to have teach me law. But the most important professor I have had thus far in law school has been a woman from Southwest Detroit working tirelessly to help her community, a woman who bore no label of “Professor” nor was employed by my law school. Her name is Sandra,i and she was my client. I signed up for one of the law school’s clinics after Thanksgiving of my 2L year. The first semester of my second year of law school was brutal. I overloaded on credits to take as many classes as possible. I took four doctrinal classes and one business class, served as a

STUDENT SECTION

teaching assistant for the Legal Writing and Practice program, and worked over twenty hours a week as a research assistant for a professor I admired and feared too much to tell her how stressed I was. Despite how much and how hard I was working, I felt purposeless. I was taking these classes and learning case law and legal principles, but I missed being able to do something. I missed working. I missed going home at the end of the day feeling like I had accomplished something and made a difference in someone’s day. When the Community Enterprise Clinic announced that they had one open spot left for the spring semester, I signed up without a second thought. My clinic partner and I had two clients, both nonprofits located in Southwest Detroit. One matter focused on entity formation, and the other on contract drafting. The day after Michigan had its first “snow day” in several decades, my partner and I traveled to Detroit to visit

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My clinic experience reminded me of these things: there is a world beyond law school, and there are people beyond my ivory tower. It reminded me that diligence, professionalism and empathy were skills that I had to practice just as much as I had to practice briefing cases and Bluebooking. Sandra and learn more about her organization and what she needed in terms of entity formation. From her file, we knew she was interested in exploring a community land trust, and I had looked up her neighborhood on Google Maps and on the Wayne County property records in order to get some idea what we were getting ourselves into. But when we parked on the side of the street in her neighborhood, the skeletal houses looked nothing like the pictures we had seen on the internet, and the snow and ice piled on the street chilled the enthusiasm that had been building in the car the entire drive over.

My partner and I zigzagged through the ice and snow from the car up to our client’s front door. We barely had a chance to knock before our client swung open the door. She beamed at us from inside a tattered screen door and graciously welcomed us inside, invited us to sit and asked if she could get us tea or coffee. The next hour, without a doubt, changed my life. I heard our client speak with fire and passion in her voice about her neighborhood and her neighbors. She wanted to protect and preserve the history and relationships that grew up around her in that neighborhood. The house in which we met—her house—served triple duty as a makeshift shelter, community kitchen and tutoring center. Sandra gave up her own bed for those who needed one, provided warmth for those coming in out of the cold and gave a sense of home for those whose homes had been taken by the City of Detroit. She was heartfelt, energetic and unbreakable. She leaned on a cane to walk, but when she spoke, her voice filled all the corners of the room. Sandra told us about growing up in her neighborhood, watching her neighbors lose their homes to foreclosure and eminent domain and going to community meetings to protect her home as the City’s gentrification circled her neighborhood like a shark. She wanted a community land trust to buy and hold the lots on her street. She wanted to protect her neighborhood. She wanted to protect Ms. Amelia, who lived next door and who kept a closet full of clothes for people who needed them. She wanted to buy the lot next to her to start a community garden so that children living down the street could have fresh vegetables. She

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wanted to build a playground in the cul-de-sac to keep the kids off the streets and close to the after-school tutoring program run out of her home. We had no idea how to help her, but we knew we would try. We only had one semester with Sandra, and we wanted to do as much as we could with it. We spent that semester researching community land trusts and other land-holding entities, calling city workers and officials and making the drive from Ann Arbor to Detroit to visit Sandra and her neighbors. We counseled her on possible entity structures and strategized with her about who in and around her neighborhood could help her with her goal. “If you could make Sandra into a battery,” I told my partner, “she could power the world.” We did our best to match her (unmatchable) energy with our own. This semester in clinic taught me more than any other class about how to actually be a lawyer. I learned about client-centered lawyering. The consistent focus on serving our client reminded us that lawyers don’t always know better, and that we owe our clients deference to their experience and wishes. More than once, I caught myself thinking about what I thought my client’s goals should be rather than actually listening to her. I also practiced giving: time, energy, attention. Detroit was 45 minutes away without traffic. Every time I thought about making the trip, my mind inevitably went to all the class reading or journal work I could be doing instead of driving. But each trip made me feel stronger, more active and more involved as a lawyer. I practiced being the kind of lawyer who makes the trip out, who

gives you her full attention while she is with you and who goes the extra mile, because she is your lawyer. I learned about frustration, the kind of frustration when the answer isn’t on LexisNexis or Westlaw or Google. I learned to pick up the phone and call people who might have the answers to my questions, and I learned how to talk to them as a lawyer and not just as a law student. I learned how the words “and I represent” sounded when they came out of my mouth. I learned that lawyers are not immune from sorrow. My client, a black woman in Detroit, fought ferociously against eminent domain and gentrification. She gave her money, her time, her energy, even her own home to help her neighbors. But the forces working against her were too strong. The City held the rest of the lots in her neighborhood and took them off the market so she couldn’t save them. When she showed up at community meetings to plead her case, they told her she was too late and that the redevelopment plans for her neighborhood had already been approved. It broke my heart to know that, no matter how much research we did and how many times we met with her and how much we tried to help her, the City would probably— inevitably—win.

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I learned about frustration, the kind of frustration when the answer isn’t on LexisNexis or Westlaw or Google. I learned to pick up the phone and call people who might have the answers to my questions, and I learned how to talk to them as a lawyer and not just as a law student. It is easy to become isolated in law school. It is too easy to go to school and to go home, to do readings for class and cite check for journal, to write a Note or research for a professor, to squirrel away GPA-boosting credits and seminars, to focus on surviving law school and then getting out. There is immense pressure to succeed in class, to do well and impress your professors and classmates. It is hard to remember how to be a person. It is harder still to remember that, at the end of the day, the goal of this whole experience is to turn us into someone’s lawyer.

Kohr Royer Griffith

Commercial Real Estate Services

Since 1914 SALES / LEASING – APPRAISAL – PROPERT MANAGEMENT COUNSELING – REAL ESTATE DEVELOPMENT - ACQUISITIONS

1480 Dublin Road, Columbus, Ohio 43215 614.228.2471 - 614.228.1919 FAX

www.krgre.com

My clinic experience reminded me of these things: there is a world beyond law school, and there are people beyond my ivory tower. It reminded me that diligence, professionalism and empathy were skills that I had to practice just as much as I had to practice briefing cases and Bluebooking. It reminded me that the legal profession is, first and foremost, one of service. Working in a clinic allowed me to practice being a lawyer in every respect, especially developing the ability to put my client first. I have learned so much from my professors, who constantly amaze and inspire me with their minds and their energy and their willingness to share with me. I am truly lucky to learn from them and from my amazing classmates. But the moment that changed me the most, the moment that reinvigorated my passion for the profession that I am preparing to enter, the moment that made me feel, for the first time since my first day of 1L, like I was more than just a student, was that first moment when Sandra opened the door, shook my hand and called me her lawyer. Because in that moment, I was.

KRG Associates hold individual memberships in – Appraisal Institute Society of Industrial & Office Realtors American Society of Real Estate Counselors Certified Commercial Investment Member Institute of Real Estate Management Building Owners & Managers Association

i

Names and identifying information have been changed to protect client confidentiality.

Liz Helpling

University of Michigan

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Life Outside the Law

Don’t Call It Retirement—

It’s the Next Wave!

BY ROSEMARY EBNER POMEROY I decided to close the Law Offices of Rosemary Ebner Pomeroy on June 1, 2018. It’s the start of 2020, and I still have a few matters left to complete. I’ve even taken on a few interesting adoption cases in the last few months, as a courtesy to former clients and some dear colleagues, as well as to feel like I still have skin in the game. So, folks, what is retirement like for someone like me? I hope to give you an answer to this question, with a few amusing anecdotes, and a few words about navigating the peaks and valleys of this next life chapter.

A few months ago, I was running errands in the Worthington area. I heard a familiar voice shout out, “How’s retirement?” I was just about to give a short but informed answer, but the friend didn’t wait for it. I guess it was more of a greeting to her. I tried to yell out, “Don’t do it!” but this friend had simply turned the corner on her own journey of errands. I guess for starters, I simply cringe when I hear the word retirement. How about any other label, such as “the next wave,” “the sequel,” “a different path,” or even a “new journey.” Retirement sounds like a literary term in a novel, basically for going to sleep. It’s an awful term, and really diminishes your self-worth.

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As an extroverted attorney, about six months into this new path I started to realize that I needed to make some things happen. I add that “making things happen” is in fact a work in progress, so I am still trying to figure out what my next steps are. When I think about the last year or so, the word disorienting comes to mind. When I was working my practice, I had a purpose, a place to go to, friends and colleagues to meet and a meaningful stack of practice-related reading materials. I had that incredible time where a lawyer troubleshoots a problem to a reliable and practical solution. I heard the phone ring, and a new challenge materialized with an old or new client. I was energized by trips to the courthouse, to attend a hearing or close an estate administration, with the added bonus of running into old friends and colleagues, and younger lawyers I have mentored and advised. I was also filled with pride knowing that when I got off the courthouse elevator, our own Sarah Pomeroy was forging her own career path only a few floors away at the Columbus City Attorney’s Office. I have gone to the Columbus Bar Association less frequently for practice committee meetings and events. I still attend seminars, because I simply love to learn, but I also face the realization that as my practice decreases, I don’t need to keep up with the law with the same sense of urgency.

As an extroverted attorney, about six months into this new path I started to realize that I needed to make some things happen. I add that “making things happen” is in fact a work in progress, so I am still trying to figure out what my next steps are.

Piano and bought a beautiful, shiny, black six-foot grand piano. The instrument has changed my life. I’ve always taken piano lessons, and I credit Dr. Suzanne Newcomb with improving my playing and pushing me to try new musical challenges.

First and foremost, I am pursuing two of my favorite hobbies. I am basically just a piano-playing fool. When I had a mid-life crisis in my 40’s, I decided not to run off with a handsome dude running an internet startup. Instead, I went to Graves

Consequently, to cure my performance anxiety, I play in the Heather Pick Music Program at the James Cancer Hospital. It is just once a month, but it makes a difference for me, and I hope it makes it easier for cancer patients

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or their families, those who are facing treatment or caring for their loved ones. I have a song set of about 25 pieces that cover classical, jazz and Broadway show tunes. What I have learned from playing at the James is that there are a lot of docs out there who can’t sing. But you know what? They will give it a whirl anyway. I guess I think of my playing as changing hearts and minds one note at a time. I add that there are a lot of lounge lizard singers in this town, as evidenced by folks who want to sit on my bench and sing while I play. With my great admiration for the needle arts, I also have put myself in a needlepoint group. I knew there was artistry in needlepoint, but I never realized the real impact of this activity until joining this group. The women and men who stitch at Louise’s Needlework in Powell create pillows, pictures, stand up statues and even create designs that are painted onto canvasses. Every day there is another beautiful piece of needlepoint, ready to be a present for a husband, a wife, a child or a friend. As my mom used to say, “Don’t whine, create!” Words of wisdom. I also add that Betsy Ross must have been some kind of woman stitching the flag. Wowza. I’ve also experienced the valleys of closing my practice. I’ve actually gone through a grieving process. Yep, there were days where I sat at home and cried… and others where I alphabetized my spice racks, purged Pomeroy memorabilia and even

started Christmas shopping in the summer. The grief in part stems from loving my practice areas so much. “Everything that happens in probate court” used to be my mantra: adoption, estate administration, estate planning and guardianship. The best court and the best practitioners anyone could ask for, anytime. I know there are a lot of CBA folks who think my mantra is “Stay out of probate!” But, honestly, it’s the best place ever to be an attorney who gets things done. I’ve sent out a lot of online job resumes, looking for that perfect flexible schedule position. What I have learned is that, sometimes, online job applications simply fall into the online abyss. The best way to look for that position that fits is to call and email colleagues. You have to keep reaching out, with the

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realization that things simply take time. Patience is a virtue, and one simply has to keep that idea in their back pocket and repeat it often.

So, going forward, what advice do I have? Here are ten tips. 1. Take some time after you stop practicing to rest and do some things that are fun. That might be taking a long-awaited trip, reading the book or books you always wanted to read and even making that list of ideas about how you would like the future to look. 2. Don’t sacrifice fitness during this time of transition; walk, go to the rec center, cycle, do tai chi or attend a yoga class whatever makes you energized.


3. Consider a life or retirement coach, particularly if you spent many years telling clients to trust the professionals. Now, it might be time for you to do the same. 4. Think about the top three things that you really enjoy and go out and do them. Maybe you would like to play an instrument, sing in a choir, take up woodworking, learn to play golf or become a tour guide; simply pick something and give it a chance. 5. I f you had a pet and miss them, perhaps it’s time to find another. Remember, your sweet dog or cat won’t sue you for malpractice.

7. If you are in a church or other community of faith, reach out to the people who are part of that faith community for ideas and support. 8. Educate yourself by attending a class, teaching something in your wheelhouse to a willing audience or even learning online. 9. Get your calendar out and plan those visits with adult children, grandchildren, siblings and friends. These are the people that care about you the most. 10. Accept the peaks and the valleys. In a valley you may even decide, “Hey, I still want to practice,” and that is okay. Sometimes the greatest ideas or plans of action come from that time of self-assessment and review. Just being patient may result in a real opportunity. I chaired the E.A.G.L.E Committee of the Columbus Bar Association for several years: Extraordinary Attorneys Got Legal Expertise. But let’s get real, folks; Extraordinary Attorneys have way more than legal expertise, so take the time to regroup and figure out what your next extraordinary is going to be. I’m still working on it, and I’m hopeful. Good luck!!!

6. Chat with friends who are changing up their lives. What are they doing for the next wave? Meet these folks for coffee or lunch and consider all the possibilities.

Rosemary Ebner Pomeroy, Esq.

ebnerpom@gmail.com

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Life Outside the Law

Judith McInturff BY HEATHER G. SOWALD

Judy McInturff has an energy and enthusiasm which fuels her multitalented creativity. She uses her artistry to better understand herself and the world around her. She is a former pianist and violinist, a painter, poet and writer, all of which enable her to give back to family, friends and the legal community.

Many of Judy’s poems have been written for holidays or to celebrate a family member’s life events. She says her family looks forward to the gift of each new poem. Judy describes her painting process as beginning with a photo of the pet or the house she plans to replicate. When she is in painting mode, she loses track of time, and thoughts of personal or work challenges flee while she concentrates on the next color to use or image to create. She generally works with acrylic

Judy taps into her different moods by creating art, poetry or stories that are reflective of what is happening in her life or around her. She relaxes by painting portraits of her friends’ pets and homes to give as gifts from her heart; she composes poetry to celebrate others’ milestones or family celebrations; she writes short stories and books when personal life events inspire her; and she writes plays when she is worried about national events. She talks about how her writing connects both her and the reader with what matters, with personal, but hopefully universal, insights. Judy knows she has written something of value if the reader either laughs or cries in response to her prose. Lately, she has written two children’s books, soon to be published by Five Rainbow publications, which were inspired by her young granddaughter who has a disability, and a play. PAINTING by JUDITH MCINTURFF 58 | Columbus Bar L aw yers Quarterly Spring 2020


When she is in painting mode, she loses track of time, and thoughts of personal or work challenges flee while she concentrates on the next color to use or image to create. She generally works with acrylic paints, although she experiments with other mediums, such as pastel chalk. paints, although she experiments with other mediums, such as pastel chalk. A typical painting of a dog, she says, might take around four to six hours. When she is painting pet portraits, her goal isn’t perfection, but rather to create a layered, moving picture with personality. Her goal is different when painting pictures of friends’ houses, with the hope that her friends will proudly display them in their homes. It is no surprise that with such an eye for color and detail, she married Jim Wolfingbarger, a housepainter who understands those concepts. Judy relates that their three adult children, Alexandra, Drew and Ryan, have also inherited various degrees of artistic ability. Judy grew up in the Knoxville, Tennessee area, the daughter of an engineer and a fashion artist. From her father, she learned how to think logically through issues, and from her mother she learned about perspective, technique, shapes and colors. These latter lessons, she reflects, taught her how to recreate a 3-D object into a 2-D format. After studying at Miami University with a major in education and a

PAINTINGS by JUDITH MCINTURFF

minor in art, she attended Capital Law School (1980). Judy’s legal career as a solo practitioner concentrated on debtor bankruptcy and related matters, while also serving as an Adjunct Professor in Capital’s paralegal program. In 2015, after 35 years of practice, she closed her practice to become the CBA’s Director of Continuing Legal Education. Even in this role, she creatively thinks outside the box in planning the curriculum.

that written communications, whether in the form of a short story, a play or poetry, can change the world for the better, and personal poetry and paintings can uplift the special people in her life.

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com

Judy’s creations are meant to be a gift not only to her family and friends, but also to society. She believes 59 | Columbus Bar L aw yers Quarterly Spring 2020


Life Outside the Law

AUSTRALIA is Welcoming:

From Urban to Outback (Part 2 of 2) BY Hon. David E. Cain, Ret.

With seashores and nearby mountains, skyscrapers and architectural icons, spacious inner-city parklands and botanical gardens and national parks to the north and west, it is easy to see why Sydney attracts more than 15 million visitors a year.

The British colonized Australia in 1788. The oldest shopping center in the world, David Jones, was established in Sydney in 1838. In 1888, the City Hall was built, and expansion has been rapid ever since. Metropolitan Sydney’s population is now at five million (more than the entire population of New Zealand). The total number living in Australia is 25 million and 90 percent live within 60 miles of the coast.

But the future may be clouded by the catastrophic wildfires that have spread across hundreds of miles of New South Wales southeast of Sydney toward the Tasman Sea. During our visit, there was talk of a morethan-two-year drought and spotty wildfires, but nothing like what has happened since.

A visit to the Blue Mountains, about two hours west of Sydney, was part of the last leg of our train ride that began four days earlier in Perth on the West Coast some 3,000 miles away. In the Blue Mountains National Park, we took the Scenic Skyway with its glass-bottom cable cars from one 1,000-foot cliff to another, where we boarded the Scenic Railway that features a 52-degree

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A highlight of the bus trip was our stop at Glowworm Cave, a 130-year private tourist attraction where visitors descend a stairway about 200 feet to board small flat-bottom boats and float through caverns sparkling from the phosphorescent light of the wingless insects attached to the walls and ceilings. incline (steepest passenger train in the world) and descends about 1,600 feet into the Jamison Valley. There, we enjoyed the Scenic Walkway (an elevated boardwalk) before going back to the top on the Scenic Cableway. Our hotel in Sydney overlooked Darling Bay among rows of highrise buildings that lit up at night and cast dazzling colorful reflections off the waters. Our first morning in Sydney took us to its most glamorous sight. The panorama is on the Sydney Harbor, an inlet off the Tasman, where the endlessly photographed Opera House and the majestic Sydney Harbor Bridge came into view, with about a half mile of sea water in between. One of the longest steelarch structures on the planet, the bridge opened in 1932 and stretches 1,650 feet to connect downtown Sydney with the northern suburbs. The highest of two sets of double arches tops out at 440 feet above the bridge’s base. Nearby, the Opera House covers a 15-acre site, at the point of a

peninsula, where ancient Aborigines ceremoniously sang and danced for hundreds of years. Now, the singing and dancing in the Opera House attracts 1.5 million guests a year for some 2,000 shows that are presented in seven performing areas. In the Concert Hall that seats 2,700, a cast was rehearsing the musical “Hair.” In the Opera Hall, the running feature was “West Side Story.” That hall has 1,500 seats and an orchestra pit that actually spreads out below the stage and accommodates 75 musicians. The

Opera House has a grand organ that took 10 years to build and is considered the largest musical instrument in the world with its 10,154 pipes. The distinctive look of the Opera House comes from the three sets of shells (14 shells altogether) that are made of precast concrete and are covered with slightly more than a million ceramic tiles manufactured in Sweden. The glistening maintenance-free shells serve as the roofs and walls. If they could be rearranged, they would

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all fit together to form a sphere. The Danish architect, Jorn Utzon, said he was inspired by peeling an orange. He was picked from 232 entries in 1957. Construction began in 1959, but Utzon was actually forced out in 1965 as costs far surpassed the original estimate of $7 million. They climbed to $102 million by the completion in 1973. Still, it seems like a bargain, with more than eight million people now touring the icon every year. The tip of the highest shell is little more than 200 feet high (equivalent to a 22-story building). Incidentally, Mel Gibson performed here when he was 13 years old.

until five years ago, now owns the tourist company and leads the adventures while lecturing on Aboriginal traditions, crafts and weapons. He said 98 percent of Sydney’s population has never visited the park. It contains more than a thousand Aboriginal ceremonial sites. Informational and picturesque engravings can still easily be seen in the large patches of stone that cover the hilltops. Some engravings are hundreds of feet long. The indigenous people of Australia, now about 1.5 percent of the population, have the oldest living

Our next stop was totally different: the huge Bondi Beach that was nearly covered with sun bathers while surfers and swimmers braved the frigid waters. Early fall here is early spring in the “land down under.” On our last full day in Sydney, we took an “outback” tour in the Ku-Ring-Gai Chase National Park that covers a 15-mile long, three-mile wide area just north of the city, a 45-minute ride from downtown. Paul, a stockbroker 62 | Columbus Bar L aw yers Quarterly Spring 2020


culture in the world (spanning 60,000 years). Although two-thirds of them live in cities and towns, others are in remote areas maintaining their traditional way of life. At one point, we traded the bus and the hiking trails for a boat to tour the river system that connects with the Pacific Ocean five miles away. On our return to downtown Sydney, we visited an opal museum. Australia produces 95 percent of the world’s opal. After that, Mary Ann and I walked to the Sydney Harbor and took a public ferry boat to a dock near our hotel. The next day, we flew back to Auckland on the North Island of New Zealand. At 1.5 million, Auckland is the largest city in New Zealand and accounts for a third of its entire population. We enjoyed dinner in the rotating skyway restaurant that sits on top of a 500-foot tower and offers a skywalk and/or a sky jump with a bungie cord. (We tried neither one.) New Zealand is at the bottom of the South Pacific but is green year-round with usually mild temperatures. A three-hour bus ride south to Rotorua was super scenic, with rolling hills and mountains covered by lush green farmland filled with large herds of sheep and cattle and an abundance of rivers and streams. New Zealand is a sharp contrast to Australia, which lies to the northwest and has large desert lands (second in size only to the Sahara) created by dry air masses sweeping in from the west. The country is nuclear free by act of parliament. Hydroelectric plants provide 75 percent of the power with geothermal, wind farms and solar cells producing the rest. A highlight of the bus trip was our stop at Glowworm Cave, a 130-year private tourist attraction where visitors descend a stairway about 200 feet to board small flatbottom boats and float through caverns sparkling from the phosphorescent light of the wingless insects attached to the walls and ceilings. A glowworm is the 63 | Columbus Bar L aw yers Quarterly Spring 2020


size of a matchstick. Each one drops 20 sticky strings that catch mosquitoes and moths that fly into the caves at night. Their lifespans are 10 months. They reach adulthood but have no mouths. They live only three more days, and they drop 120 eggs per worm. In the outskirts of Rotorua, descendants of the Maori tribes have set up the historic Tamaki Maori Village (with a modern theater and dining area) to give visitors a three-and-a-half-hour Maori cultural experience with demonstrations of ancient weapons, games, singing and dancing. The evening ended with a meal prepared in a hangi, an earthen oven where vegetables and meat simmer for hours in a pit full of hot rocks. A day later, we visited another Maori village replica where we took a pedestrian bridge over geothermal hot pools of bubbling and smoking grey lava with small geysers spitting and spraying among rocks and rapids. On our way back to the Auckland Airport, we visited an area which I found to be much more enjoyable than I

expected — the Hobbiton movie set, where most of “The Lord of the Rings” and “The Hobbit” trilogies were filmed. The 12-acre set has 39 Hobbit Holes nestled in flower gardens that bloom all year round. And that is surrounded by a 1,250-acre sheep and beef farm spreading over rich green hills and valleys. The construction of Hobbiton began in 1999 for the filming of the “Lord of the Rings” later that year. Some rebuilding with permanent materials occurred in 2009 for the creation of “The Hobbit” in 2011. Ninety-five percent of Hobbiton is natural, an exception being a large tree made of steel and silicon. A walk over the arched bridge beside The Mill and dinner in the Green Dragon Inn round out the adventures for the 2,500 to 3,000 daily visitors.

Hon. David Cain, Ret.


T h e C o l u m b u s B a r A s s o c i a t i o n i s O h i o’ s N o t a r y P u b l i c R e s o u r c e C e n t e r

Want to Become an Ohio

NOTARY?

www.cbalaw.org/notary

The Columbus Bar Association is an authorized education and testing provider for traditional notaries under the Ohio Notary Public Modernization Act. If you want to become a notary public or renew your existing commission, we’ll assist you with each step of the process. From your background check and required education and testing to your stamps and supplies – we are Ohio’s Notary Public resource center.

Background Checks

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www.cbalaw.org/notary The Columbus Bar Association is Ohio’s Notary Public Resource Center

Background checks • Education for new, attorney and renewal applicants • Testing for new applicants • Stamps and supplies


Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER

Verdict: $552,958.54. Automobile Accident. ($52,958.54 economic damages; $500,000 non-economic damages) Plaintiff Yinyan Guo drove westbound through the intersection of Polaris Parkway and Africa Road on a yellow light. At the same time, Defendant Rebecca Delaney made a left hand turn from Polaris Parkway onto Africa Road, striking the driver’s side door of Guo’s vehicle. Guo’s left hip was fractured in the collision. She underwent surgery to repair the fracture and subsequently developed a blood clot. She then underwent surgery for insertion of an IVC filter to prevent a pulmonary embolism, a second surgery to remove the IVC filter and a revision hip surgery to remove a screw that was causing complications. Ms. Guo claimed that her injuries were permanent. She had a surgical scar on her leg and presented testimony at trial from her expert that she could be expected to have some degree of pain and discomfort with higher-level activities in the future and would potentially need physical

therapy to help with the scar tissue or increase muscle strength. Delaney disputed liability for the accident, and presented the testimony of an independent witness who testified that Guo ran the red light. Delaney did not dispute that Guo suffered a hip fracture in the accident, but disputed the extent and permanency of Guo’s injuries. Delaney’s counsel elicited testimony from Guo at trial that she was able to engage in activities that included running twice weekly, snowboarding, yoga and overseas travel. The jury found in favor of Guo and also found that her injuries were permanent and involved a substantial physical deformity. Defendant moved for a new trial and Plaintiff moved for costs and prejudgment interest. The parties settled while those motions were still pending. Medical Specials: $52,958.54. Lost Wages: None. Last Settlement Demand: $200,000. Last Settlement Offer: None. Length of Trial: Three days. Plaintiff’s Experts: Chris Wells (accident reconstructionist); James Latshaw, M.D. (orthopedic surgeon). Defendant’s Expert: None.

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Plaintiff’s Counsel: Curtis M. Fifner. Defendant’s Counsel: Roger H. Williams and Christina N. Williams. Magistrate Mark Petrucci. Case Caption: Yinyan Guo v. Rebecca Delaney, Case No. 17 CV 7907 (2019).

Defense Verdict. Medical Malpractice. Defendant William L. Washington, M.D., was the primary care physician of Joyce Ann Esposito. Esposito suffered from chronic obstructive pulmonary disease and musculoskeletal pain, among other conditions. Washington prescribed fentanyl patches to treat Esposito’s pain. While admitted at Doctor’s Hospital West for pneumonia on Jan. 6, 2013, Esposito was found unresponsive and her blood-oxygen saturation level was low. The hospital staff administered Narcan and Esposito recovered. She was referred to a pain management specialist who lowered the dosage of her fentanyl patch. After she was discharged from the hospital, Esposito returned to Washington,


who was not aware of the hypoxic event in the hospital. Washington prescribed another fentanyl patch with a higher dosage. Three days later, Esposito was found dead in her apartment. The coroner concluded that the cause of death was acute fentanyl intoxication. Plaintiff’s counsel argued that Washington fell below the standard of care by failing to obtain the hospital records and determine why the pain management specialist had lowered the dosage on Esposito’s fentanyl patch. Defense counsel argued that it was not a breach of the standard of care for Washington to increase the dosage without obtaining that information. Last Settlement Demand: None. Last Settlement Offer: None. Length of Trial: Nine days. Plaintiff’s Experts: Mark Komar, M.D. (family practice physician), Michael Bourn, D.O. (pain management specialist), Stuart Graham, M.D. (pathologist), and Fred Apple, Ph.D. (forensic toxicologist). Defendants’ Experts: John Pappas, M.D. (pain management specialist); Steven Schwartz, M.D. (family practice physician); and Iain McIntyre, Ph.D. (forensic toxicologist). Counsel for Plaintiff: Christopher Shakib, Paul Grieco and Drew Legando. Counsel for Defendants: Brant E. Poling and Sabrina S. Sellers. Judge David Young. Case Caption: Louis M. Borowicz, Special Administrator of the Estate of Joyce Ann Esposito v. William L. Washington, M.D., et al., Case No. 14CV6371 (2019).

FAMILY MEDICINE EXPERT WITNESS Honest, ethical, and competent case review and expert services. - Family medicine standard of care - Osteopathic manipulation - Nursing home care & urgent care - Delayed diagnosis & failure to diagnose

Luis L. Perez, D.O., FAAFP, FACOFP (419) 602-3018 LP131304@ohio.edu

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Defense Verdict. Automobile Accident. On Oct. 2, 2014, a COTA bus was moving west on Hudson Street in the left lane as it passed through the intersection of Hudson Street and Indianola Avenue. Plaintiff Danielle Ayala was also traveling west on Hudson Street in the right lane next to the bus. Her minor daughter, Plaintiff Lelani Ayala, was her passenger. The bus struck Ayala’s vehicle, knocking off the front bumper. Both vehicles continued through the intersection. Ayala claimed injury to her knee, hip, shoulder and back. COTA admitted liability but disputed the nature and extent of the injuries and the amount of medical expenses. At trial, COTA presented a video of the impact between the bus and Ayala’s vehicle. COTA also called a medical

expert who had reviewed the records and the video and concluded that Ayala was not injured. Medical Specials: $10,120.00. Last Settlement Demand: $15,000. Last Settlement Offer: $2,000. Length of Trial: Two days. Plaintiffs’ Expert: Todd Hochman, M.D. (internist). Defendants’ Expert: Christopher Holzaepfel, M.D. (orthopedic surgeon). Counsel for Plaintiff: Ronald E. Stump. Counsel for Defendant: Matthew R. Planey. Magistrate Ed Skeens. Case Caption: Danielle Ayala v. Central Ohio Transit Authority, Case No. 18CV4988 (2019).

67 | Columbus Bar L aw yers Quarterly Spring 2020


2019 Year in Review The following statistics have been compiled based upon case disposition reports from the Franklin County Common Pleas Court to provide a snapshot of civil jury trials for 2019: Juries rendered verdicts on 28 civil actions in 2018. This is the fewest civil cases tried in a single year since 2012. Of these 28 civil jury trials, 16 were presided over by a magistrate or visiting judge. The highest verdict was $1.7 million and was awarded in a medical malpractice case. Of the 28 civil trials, 13 involved automobile accidents, six involved medical malpractice claims, two involved business disputes, and two involved property disputes. The number of automobile accident cases tried increased from 2018 but was slightly below average for the five years prior to 2018. The number of medical malpractice cases tried was the same in 2018 and 2019 but was also below the average for the years prior to 2018.

Auto Accident Jury Trials, 2019 • Ten of the 13 auto accident trials ended in plaintiff’s verdicts. • The damages awarded to plaintiffs ranged from $4,734.30 to $552,958.54. The average of these verdicts was $127,322.66. The median verdict was $50,780.95. • There were four cases with verdicts below $20,000. In all of those cases, the noneconomic damages were $2,500 or less. In one case with a verdict below $20,000, the jury awarded $0 in non-economic damages. There were two cases with verdicts of approximately $50,000. In those cases, the verdicts were split roughly equally between economic and noneconomic damages. For the remaining verdicts, which were over $50,000, the noneconomic damages represented 80 percent or more of the entire verdict. However, in every verdict range, juries awarded more for non-economic damages in 2019 than in 2018.

By comparison: Auto Cases

2019

2018

2017

2016

2015

# of jury trials

13

9

16

13

13

% of all civil trials

46%

26%

37%

35%

33%

% Plaintiff’s verdicts

77%

89%

75%

62%

78%

Range

$4,734.30$552,958.54

$1,400$100K

$2,000$850K

$3,087.05$10.9M

$1,655$85K

Mean

$127,322.66

$33,353.87

Median

$50,780.95

$18,380

$150,973.18 $1,383,118.19 $15,000

$17,826.83

2012

$29,130 $16,734

Medical Malpractice Jury Trials, 2019 • Six medical malpractice cases were tried to verdict in 2019. Only one resulted in a plaintiff’s verdict.

By comparison: Med Mal Cases

2019

2018

2017

2016

2015

# of jury trials

6

6

8

10

11

% of all civil trials

21%

18%

19%

27%

28%

% Plaintiff’s verdicts

17%

33%

25%

50%

9%

* The list of civil trials was derived from a list of cases for which jurors were requested from the Franklin County Clerk of Courts Office

Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com 68 | Columbus Bar L aw yers Quarterly Spring 2020


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