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LAWYERS

Columbus Bar Summer 2020

QUARTERLY

SPECIAL ISSUE:

Election Law This issue of Columbus Bar Lawyers Quarterly scrutinizes election law and procedure. Look inside for articles examining compulsory voting, voting accessibility issues, a centennial celebration of women’s suffrage and more. Plus, get some writing tips, advice for tackling return-to-work amidst the COVID-19 pandemic, ethics cases and more.

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


MASTER OF LEGAL STUDIES

capital.edu/mls2020

Full-time or Part-time

A Master of Legal Studies degree offers a pathway to enhance your professional knowledge of laws and regulations as well as enhance your analytical and critical thinking skills.

CHOOSE A CONCENTRATION OR CUSTOMIZE YOUR OWN CURRICULUM

• • • • •

Criminal Justice Environmental Sustainability Governmental Affairs Health Care Human Resources

OPPORTUNITY BEGINS HERE. There’s still time to apply for Fall 2020!

PARALEGAL PROGRAM

Our ABA-approved, post-baccalaureate Paralegal Program teaches fundamental legal theories and analysis as well as practical skills like legal research and writing, eDiscovery, and case management.

capital.edu/paralegal2020

Fall or Spring Start Programs (Part-time) Summer Immersion Program (Full-time) For questions about the MASTER OF LEGAL STUDIES or the PARALEGAL PROGRAM, please contact: 614-236-6310 or admissions@law.capital.edu


Table of

LAWYERS

Contents

QUARTERLY

Summer 2020 President’s Page

4

Lead the Way Rob Erney

Bar Insider

8

Where Science Meets Storytelling: The Drama of Change Mark Kitrick and Mark Lewis

Discipline Cases in the 12 Lawyer Supreme Court of Ohio

Summer ‘20: Election Law

40 44

Accessibility of Voting for People with Disabilities Lisa Wurm

48

Extending the Sphere: Potential Advantages and Disadvantages of Compulsory Voting in the United States Michael Robertson

54

Election Contingencies and COVID-19: Lessons Learned Patrick T. Lewis, Robert J. Tucker, and Douglas A. Vonderhaar

Nelson E. Genshaft

Better Lawyer

20

Law Schools: Painful Lessons from the Great Recession Jason M. Dolin

It’s a Small World from a Social Distance 24 Meetings Kevin C. Rouch

Business, Interrupted Gary Moll

34

The New Normal for Law Firms in a Post-Pandemic World Steven M. Loewengart

Bar Happenings

38

Photo Gallery and Calendar of Upcoming Events

Chair

Melanie Tobias

Board Members Gwen Bocher Damon Durbin Ashley Johns Janyce Katz Garth Rowbotham Doug Vonderhaar

Editor

Brianna Antinoro

Student Section

58

The Value of Working During Law School Ben Hachten

62

”Getting Involved”: Benefits & Best Practices Megan Nelson

Points of Practice

30

The Women of Our Past: 100 Years of Women’s Suffrage Christine Wieg

Columbus Bar Association Editorial Board

Life Outside the Law

66

Lawyers with Artistic License: Alexander H. Hastie Heather G. Sowald

68

5 Things Lawyers Need to Know About Reacting Scott R. Mote

72

Clinical Trials 101: A Basic Discussion of an Important Process Janyce C. Katz

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

80

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

Lead the Way by roB ERnEY

Thank you for allowing me to serve as president of the Columbus Bar Association for 2020 – 2021. I am truly humbled by this opportunity and excited to give back to a bar association that has been so good to me. I will do everything in my power to make the Columbus Bar Association the best professional association in the country. In times of change and uncertainty, it is reassuring to be part of an organization that will lead the way to success. The CBA is one of the most respected bar associations in our nation. We have the resources and the benefits necessary to make good lawyers better lawyers. The CBA has been leading the way for over 150 years. Organizations do not last that long unless they are relevant, helpful and supportive to its members. Our best years lie ahead of us.

The state of the Columbus Bar Association is strong. Today, we have over 4,900 members and 24 practice-area specific committees. We offer our members health, life, disability, professional liability and business owners’ insurance coverage. We have nine different revenue sources, provide high-quality CLE and send new clients to our members through our Lawyer Referral Service. In the last year, we had nearly 330,000 visits to our website and approximately 172,500 visits to our digital directory. We had over 5,000 registrations for live and online CLE, 7,250 calls to Lawyer Referral Service and we assisted over 2,000 Notary applicants. We had in excess of 1,200 assignments for court interpreters in seven different languages. The CBA exists to help our members succeed. One way we do that is through our Practice Management Center, which includes videos, checklists, articles, monthly webinars, central Ohio automated documents and our learning library videos. We also provide leadership development skills through our Barrister Leadership

We care deeply about the needs of our members. We know the practice of law is challenging and is changing in a dramatic fashion. We are confident that we can help our members be successful professionally while also having a balanced life. We know Columbus, the legal community and the community at large. We are here for you. 4 | Columbus Bar L aw yers Quarterly Summer 2020


Program. We provide networking opportunities for our members through our monthly Committees and Cocktails program, as well as a variety of special events throughout the year.

Law School to develop rules, procedures and best practices for the Practice Pending Admission Program recently announced by the Ohio Supreme Court for new law school graduates.

When the coronavirus pandemic arrived, the CBA continued to lead the way for its members. Almost immediately there were webinars and written guidelines provided to members regarding best practices for working remotely. The CBA kept its members informed of all developments regarding the court systems through a series of live webinar Bench Bar Conversations. We are also working with the Attorney Admissions Office of the Supreme Court, the other Ohio metropolitan bar associations, the OSBA and Capital

The staff of the CBA has thrived while working remotely during the pandemic. The Board of Governors has performed impeccably through regular video conference board meetings. All committees have been meeting regularly via Zoom. Today, members have access to all of our resources, CLE and committee work online.

NEW

Welcome MEMBERS Karim A. Ali Douglas L. Anderson Amy Armstrong Grant J. Bacon Patrick Sean Barnacle David A. Bhaerman Robert Blackham Angie S. Blevins Brianne Rene Veit Brown Lauren Brown Alycia N. Broz Brodie MacLeod Butland S. Renae Carr Daniel A. Chastant Darlene E. Chavers Lauren N. Chisner Emily K. Cobb Jon M. Cope Matthew Doyaga Mathew Drocton

Tierra M. Dunwoody David D. Ebersole Nicholas J. Eippert Charles R. Ellis, Esq. Michael Farley Erika R. Finley Kriss Galloway David Aaron Garman John A. Gleason Rebekah J. Glover Olivia Grieszmer Michelle D. Grimm Steven C. Hiestand Erica R. Hollar Martha L. Hutzelman Shawn M. Irish Steven R. Irvine Raquel A. Isaac Jonathan M. James Ronald D. Johnson, Jr.

The CBA is in the process of preparing and publishing guidelines and best practices for lawyers and law firms to return to work safely. The CBA staff is planning a

Natalie M. Kahler Christopher Jon Kaune Jessica Goldman King Jeffrey T. Kluesener Steven C. Kramer James Lapczynski J. Bradford Linville Amber Lucci Morgan Lyles Terrence C. Mahoney Richard J. Makowski Daniel J. Matusicky Ellen C. Maxfield Megan McClung Lauren T. McGarity Natalie V. McGee Connor M. McGinniss Michelle J. Meis Adam C. Miller Michele L. Miller Kari E. Murphy Alexandra T. Murray Suzanne K. Musleh Frederick D. Nelson Christopher Noble Michael J. O’Callaghan Abbie E. Obenour Brandon Palmer Solomon James Parini Kelly C. Parks Tresha M. Patel Andrew M. Peiffer Larry Pliskin

David Pulcheon Molly J. Reitter Douglas S. Roberts Michael K. Robertson Heather B. Robinson Alexander G. Sanchez Christopher L. Signil Joshua D. Sinclair Alison Marie Skinner Peters Jacob W. Smith Jennifer A. Smith Erika M. Smitherman Devin Spencer Janay M. Stevens Lori L. Stone Alexandra Manes Strangfeld Gregory W. Stype Curtis J. Sybert Christopher J. Tamms Jessica P. Tarantine H. Lee Thompson Valeria A. Walton Cameron M. Weaver Teddy Webb Courtney Weiss Gary S. Wellbaum Maurice Wells Robert C. Whipple Andrea Caron Wiltrout Jacqueline Wirtz Nicole R. Woods Daniel A. Yarmesch Marcia S. Zagoric

5 | Columbus Bar L aw yers Quarterly Summer 2020


Your Columbus Bar Association: A Year in Review MEMBERSHIP:

69%

4,903 total Columbus Bar members

IN 2019-2020:

(928 new members and 3,975 renewing members)

Attorney Members

8%

Sustaining Attorney Members

Paralegals and Non-Attorney Legal Professionals

REVENUE SOURCES:

Insurance Premiums/Commissions Membership Dues & Services Other CLE Notary Court Interpreters Lawyer Referral/Find a Lawyer Directory/Directory Advertising Investment Income

6%

18%

Law Students

22.82%

24.48%

0.71% 4.44% 5.04%

13% 13.32% 10%

7,249 calls to Lawyer Referral Service 2,931 registrations for live CLE 2,110 registrations for online CLE

2,181 members attended committee meetings, 426 hours of CLE offered including 857 who attended “virtual” meetings 21 hours of CLE offered via “live webinar” to assist with social distancing efforts 8 ADR committee podcasts produced with 1,000+ downloads to date 2,100+ notary applicants assisted 1,657 surety bonds written

ONLINE PRESENCE:

12.64%

329,618 visits to www.cbalaw.org to the Digital Directory 172,499 visits (directory.cbalaw.org) 150 online CLE hours offered

7.88% 8.66%

staggered return to work plan beginning in July. We have learned many things during this stay-at-home order and we believe we will emerge stronger than we have ever been. We are seeing peaceful protests in Columbus regarding the need for racial justice and equality. We are hopeful that the message of the peaceful protesters leads to positive and enduring change in our society. A few years ago, we approved of and endorsed a working group known as the Columbus Community Trust, led by past President Carl Smallwood. Its purpose is to develop a citywide plan to appropriately respond to public protests. We are in discussions with the Columbus Community Trust regarding how we can best be of assistance. The CBA signed on to “The Letter” to Columbus City Council in support of a resolution declaring racism to be a public health crisis. We believe the resolution will bring attention to the need for positive change. We are continuing to discuss the issues to determine how we can best lead the community by providing basic human rights protections and to eradicate racial prejudice. We believe in leading the way with compassion, empathy and listening skills.

1,200+ assignments for certified court interpreters in seven languages (Spanish, Russian, French, Mandarin, Somali, Hindu, Fulani) 250 committee meetings and events held, including 46 ”virtual” meetings and events

1,532 page likes

1,605 followers

4,193 followers

977 followers

We are proud of our history of diversity and inclusion. We stand in awe at the resilience and strength of our members. We will continue to remain relevant by listening to the needs of our members and providing resources and benefits to make all of us better lawyers. We care deeply about the needs of our members. We know the practice of law is challenging and is changing in a dramatic fashion. We are confident that we can help our members be successful professionally while also having a balanced life. We know Columbus, the legal community and the community at large. We are here for you. We will continue to provide a second home for you, where you can develop relationships with other members of the bar. The relationship-developing aspect of the bar association is priceless. I want to help create a compelling membership experience, one that will make you as proud as I am to be a member of this exceptional professional association. We will lead the way.

Rob Erney, Esq.

Robert D. Erney & Associates Co., LPA robert.erney@erneylaw.com

6 | Columbus Bar L aw yers Quarterly Summer 2020


COLUMBUS BAR ASSOCIATION

www.cbalaw.org

RESOURCES The Columbus Bar has something to offer almost everyone in central Ohio—from members of the public seeking assistance to attorneys and paralegals and other legal professionals.

FOR THE PUBLIC

know MORE

HELP FINDING A LAWYER

MEMBERSHIP

• One year free membership for new lawyers (who attend the reception) • Free membership for law students • Free legal research (Fastcase) • A wealth of member discounts from courier services to payroll processing

NOTARY PUBLIC SERVICES Required education courses Background checks Stamps and supplies Notary E&O insurance

INFORMATION ABOUT THE JUDICIARY • Judicial polls: Performance Poll of sitting judges, Preference Poll of judicial candidates • Judge the Candidates website for bios of judicial candidates • Judiciary committee findings

COLUMBUS BAR MEMBER

ASSOCIATION 2019-2020

EDUCATION • High quality CLE: live, video, webcasts, online • Discount on CLE for members and access to CLE Easy Pass • 12 hours of free New Lawyer Training for new lawyers • 2.5 hours of free professional conduct CLE for sustaining members

FREE LEGAL ASSISTANCE

NETWORKING

• Ask the Attorney weekly call-in show • Online resources including a listing of free legal clinics; information about the Municiptal Court self help center; legal information and glossary on the Columbus Find a Lawyer website

• 24 practice area specific committees plus a variety of professional development and board-appointed committees • Committees & Cocktails: free monthly networking event for members • A variety of special events throughout the year, from happy hours and the golf outing to Constitutional Conversations and author visits • Online communities

ATTORNEY ETHICS • Staff available to answer questions about attorney ethics • Handling of complaints about lawyers

CONFERENCE CENTER • Access to affordable space for meetings and events

PROBATE BONDS • Probate bond execution for estates and guardianships

MORE

grow

MORE

save

MORE

FOR THE CENTRAL OHIO LEGAL COMMUNITY

• Lawyer Referral Service • Directory: search by practice area • Columbus Find a Lawyer website

• • • •

connect

$

PUBLICATIONS • Directory – attorneys, paralegals, expert witnesses, mediators, and more • Columbus Bar Lawyers Quarterly • Legal Connections page in Business First • E-newsletter • Guide to Ohio Courts – online resource with links to court rules/judge profiles

CAREER/CLIENT DEVELOPMENT AND LEADERSHIP OPPORTUNITIES • Dawson Legal placement services; career center with job postings • Client development: LRS, directory (fields of practice and firm listings), Find a Lawyer website • Opportunity to write for CBA publications • Barrister Leadership Program • Columbus Bar incubator program

PRACTICE MANAGEMENT RESOURCES • Practice Management Center: videos, checklists, articles, monthly webinars • Learning Library video collection on a variety of legal topics • Central Ohio Docs automated forms • Real estate forms

INSURANCE • Health, dental, vision, Medicare assistance, life, disability • Professional liability insurance • BOP (business owner policies) • Probate bonds

DIVERSITY

• • • • •

Managing Partners’ Diversity Initiative Minority Clerkship Program Annual MLK program Dedicated staff person for programming Affinity bar relations

ADDITIONAL RESOURCES

• • • • • • •

Ethics Admissions Columbus Bar Interpreting Services Conference Center Notary Public Advance Succession Registry CBA Realty


Bar Insider

Where Science Meets Storytelling: The Drama of Change bY Mark Kitrick and Mark Lewis

The best stories usually revolve around sudden, unexpected change. The unsinkable ship strikes the iceberg as two ill-fated lovers embrace on the moonlit deck. A hapless summer swimmer plunges below the surface as the unseen shark drags her beneath. The runaway Kansas farm girl encounters the twister that swoops her away to Oz. These memorable tales all share the flash of dramatic change that captures us audience members. Hollywood screenwriters and storytellers call this abrupt change by many names - inciting incident, hook, catalyst or call to adventure. And while these are all aptly descriptive titles, they don’t tell us much about how or why the change so captivates us. A

closer look at the science of dramatic change reveals many clues to the art of persuasive writing. We’ll find that legal writing, in particular, profits from understanding the cognitive and evolutionary roots of change. The human brain is an incessant story generator. At the center of its most unforgettable stories lies the moment of surprise. Just consider stories spun by our sleeping brains. Most dreams contain a singular surprise, shock or shudder. The classic “falling dream” is but one of countless examples. As we plummet from steps or ledge, our bodies spasm awake in reaction to the threat. We similarly lurch into consciousness from the monster under the bed. We are trapped, or drowning, naked in public or even caught in Dorothy’s whirlwind. Our hallucinated

The human brain is an incessant story generator. At the center of its most unforgettable stories lies the moment of surprise. 8 | Columbus Bar L aw yers Quarterly Summer 2020


nighttime models of the world terrorize and amaze us with sudden, unexpected change. And it is the kind of change we never forget. Stories we read and write work much the same way. Our brains convert sensory data from the page or screen into electrical impulses, which in turn build hallucinated models in our heads. Even as you scan the examples in the text above, your brain makes or recalls models of the images described. You almost surely saw in your mind’s eye the disturbing vision of the falling dreamer’s body or the shadowy creature under the bed, just as your recalled visions of the Titanic, Jaws and Dorothy in the opening paragraph. What makes those images so readily available, so automatic and memorable, is their suddenly changing dynamic. All was going well, until suddenly... and then the story really begins.

he awakes to find the magic beans he threw out his window the night before grew into the sky, where adventure and possible redemption call. In this way, change can also signal the start of the protagonist’s quest or journey, as Joseph Campbell so famously popularized with his Hero’s Journey model of storytelling. But it is the eye-opening shift from Jack’s ordinary worldview to the new and strange beanstalk outside his bedroom window that grips our imagination. At that point in the story, we have no choice but to read on; we must see what happens next.

Sudden or unexpected change need not always revolve around mortal danger as in the example above. Consider Jack and The Beanstalk as an example of convincing and memorable dramatic change that does not immediately imperil the protagonist. Jack’s world abruptly changes when

9 | Columbus Bar L aw yers Quarterly Summer 2020


From an evolutionary perspective, this hyper-focus on change makes perfect sense. We seek above all else to survive. Our drive to survive focuses our senses on our immediate physical surroundings, always scanning for anything that might endanger us. We are thus carefully tuned by evolution to detect and react to change. Consider our automatic response to the snake-like coil of rope on the garage floor or the breeze that carries the imagined sound of the crying infant. Our instinctual reaction – freezing at the illusory snake – has been encoded into our body’s neural network by the evolutionary demands of survival. For the legal writer who appreciates our survival instinct for detecting change, factual descriptions can take on an entirely new emotional and cognitive valence. First, we should turn away from the lawyerly habit of over-explaining or describing facts in favor of specific concrete imagery that evokes the senses, especially our senses of sight and sound. “The screaming black twister ripped Dorothy from the ground,” triggers our sensory apparatus and models

the imagined world much differently than, “The scary tornado removed Dorothy from her feet.” These admittedly exaggerated examples illustrate why we should consider writing fact sections more like the filmmaker and less like the lawyer. One activates your eyes and ears while the other slows you down with abstractions. Don’t say its scary. Make your reader feel scared. Second, we should consider modelling our prose in the same way our brains model the world; that is, by sequencing change in the order we experience it. This is crucial because we don’t wait until the end of the sentence to start creating an image in our head. “Cain smashed the rock onto Abel’s head” builds an entirely different visual model in the mind’s eye than, “Cain smashed onto Abel’s head a rock.” This minor difference in word order can vastly alter the reader’s internal model, and thus their experience and interpretation of the text. Where we place words in sentences matters for how our readers construct visual mental models.

Studies show that we need at least three concrete qualities to create memorable visions. “Ruby red slippers” works much better than “red shoes.” 10 | Columbus Bar L aw yers Quarterly Summer 2020


Third, in similar fashion, active verb constructions create more accessible mental models for our readers. For the most part, we witness people acting on and in the world, not actions happening to people who are passively waiting around. The kind of change that most readily grabs our senses arises from perceived agency. We perceive somebody doing something to someone else, to put it crudely but accurately. Again, Abel’s head isn’t smashed by a rock. Rather, Cain smashes the rock into Abel’s head. Fourth, we achieve memorable visual models through immersive detail. We should be as precise and original as possible in our factual narration. Stock lawyerly phrases, clichés and over-worked metaphor should be replaced with clear, simple and concrete scene making. Studies show that we need at least three concrete qualities to create the memorable visions. The “ruby red slippers” works much better than “red shoes.” But use this technique sparingly to highlight objects or scenes. Relevance matters as much as detail. To test these writing principles, try composing your next factual recitation with one goal in mind – to show your reader only what can be seen, heard, smelled, tasted or touched in concrete, specific imagery. If you can’t reveal a fact by invoking one of your reader’s senses, then it doesn’t make the first draft. Resist the temptation to fall back on explanatory prose that tells your reader what it was like to see something, or how it must have felt to experience an event, or how you interpret the relevant happening. Instead, light your reader’s imagination through sight, sound and the other senses. Construct your sentences just like we model the world by sequencing the changes in the order your reader would likely perceive them. Employ active verb constructions to mark those changes. Lastly, aim for three concrete, descriptive qualities when spotlighting the change object, event or scene. In these ways, you’ll likely convince your audience of the relevant facts because you have immersed the reader in a memorable visual model of the events you describe.

Reliable expertise

WE OWN IT. 250 W. Old Wilson Bridge Rd., Suite 250 Worthington, OH 43085 614.540.6633 www.cecinc.com

Mark M. Kitrick, Esq.

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

Mark D. Lewis, Esq.

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

11 | Columbus Bar L aw yers Quarterly Summer 2020


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. Warren County Bar Association v. Brenner, Case No. 2020-Ohio-142, Decided Jan. 22, 2020. (Neglect of legal matter; failure to keep client informed; Sixmonth suspension, conditionally stayed) Andrew Jay Brenner of Mason, Ohio was charged with neglecting a legal matter, failing to keep a client reasonably informed and failing to cooperate in a disciplinary investigation. The charges arose out of Brenner’s representation of a business client that had sued a former tenant in Municipal Court. Brenner failed to respond to discovery, and this led to sanctions by the Court. Eventually the Court found that Brenner’s client was in contempt of a Court Order. The Court dismissed the complaint filed by Brenner’s client and entered a money judgment in favor of the defendant on a counterclaim plus attorney’s fees. All of this happened

without Brenner disclosing these developments to his client. His client found out about the judgment, paid it and then filed a grievance and a malpractice action against Brenner. Brenner defaulted on the malpractice action and a judgment was entered against him. Relator filed a complaint against Brenner, and he failed to answer or cooperate in the investigation. As a result, Brenner was suspended on an interim basis in 2018. Brenner moved for leave to file an Answer, and Relator filed an Amended Complaint. The parties filed a consent-to-discipline agreement that called on the Court to suspend Brenner for six months with the entire suspension stayed. The parties stipulated that Brenner committed the misconduct, including his failure to act with reasonable diligence, his failure to keep his client reasonably informed and his failure to cooperate in the disciplinary investigation. The Court found Brenner’s failure to cooperate as the only aggravating factor,

12 | Columbus Bar L aw yers Quarterly Summer 2020


and also recognized that that his clean record, his lack of a selfish motive, his cooperation in the process and evidence of good character were all mitigating factors. The Court also noted that Brenner entered into a contract with OLAP. The Court accepted the Board’s recommended sanction and suspended Brenner for six months, all stayed, on conditions that he fulfill his contract with OLAP and follow all recommended treatment, make restitution to his former client and serve a one-year term of monitored probation. Justice Kennedy dissented from the majority opinion on the grounds that the agreement of the parties and the Board’s report to the Court did not contain any conditions for the probation imposed on Brenner. The dissent pointed out that the authority to impose probation also requires the Court to impose conditions that are to be determined by the Court. Justice Kennedy would have remanded the case to the Board to determine the recommended conditions of probation.

2. Akron Bar Association v Fortado, Case No. 2020-Ohio-5171, Decided Feb. 18, 2020. (Misconduct involving sex with client with no pre-existing consensual relationship; Oneyear suspension, fully stayed) Matthew Fortado of Akron, who had a prior suspension from 1996, was charged with a violation of Prof.Cond. R. 1.8(j) (prohibiting a lawyer from soliciting or engaging in a sexual relationship with a client unless there was a pre-existing relationship prior to the professional relationship). In this case, the parties stipulated that Fortado had a long-term relationship with a client that began while he represented her in a case. The parties entered into a consent-to-discipline agreement in which they agreed that the appropriate sanction was a one-year conditionally stayed suspension. The panel rejected the agreement, and there was a hearing where the parties again stipulated that the appropriate sanction was a one-year stayed suspension. The panel recommended that Fortado be suspended for one year with six months stayed. The Board adopted the panel’s recommendation and Fortado objected to the recommended sanction. The Court determined that Fortado would be suspended

for one year, but that the suspension was fully stayed. Its reasoning was that in most cases involving a violation of the sex with client rule, there were additional acts of misconduct by the lawyer. Here, there was no evidence of coercion by Fortado in the relationship, and he accepted responsibility for his actions, fully cooperated in the investigation and provided strong character and reputation evidence. Two Justices dissented on the grounds that case law requires an actual suspension from practice where a lawyer starts a sexual relationship with a client. The dissent argues that the client’s consent, the absence of coercion or lack of evidence of prejudice to the client are irrelevant, since the basic relationship between a lawyer and his client is one in which the lawyer is the dominant party, especially in situations where the client is vulnerable from a financial, emotional and psychological perspective. But the majority decided that where there is no other evidence of misconduct, an actual suspension is not a requirement.

3. Disciplinary Counsel v. Hoague, Case No. 2020-Ohio-847, Decided March 11, 2020. (Misrepresentations to a tribunal; illegal acts; conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to administration of justice; Two-year suspension) Michael Hoague of Hilliard, Ohio was sanctioned in 2000 when he was a Municipal Court Judge for misusing the authority of his office. In 2017, he was suspended on an interim basis following his conviction of a felony involving tampering with records and theft in connection with an application for court-appointed counsel fees. Hoague was contacted by the parents whose son was represented by the public defender in a criminal case. Hoague agreed to represent the son for a flat fee of $10,000 payable over time. Hoague worked with the public defender and served as lead counsel during the criminal trial. After concluding his representation, Hoague applied for appointed counsel fees in which he certified that he did not receive any other compensation in connection with the case. Hoague failed to advise the Court that he had already received $8,000 from the parents of his client. The prosecutor learned that Hoague had failed to disclose this other compensation and

13 | Columbus Bar L aw yers Quarterly Summer 2020


referred the matter to the Attorney General. Hoague was then indicted and convicted for his false certification of appointed counsel fees. Hoague was sentenced to up to five years of community control and ordered to pay $5,000 in restitution to the State, which he paid. Following a hearing, the Board recommended that Hoague be suspended for two years, but that he should receive credit for the time he was suspended on an interim basis from December 2017. The Court accepted the recommendation of a two-year suspension; however, it found that Hoague’s conduct did not warrant credit for the time he served on the interim suspension and the Court imposed a two-year suspension. While recognizing Hoague’s cooperation in the proceedings and his payment of restitution, the Court noted that this was his second disciplinary case that involved an abuse of the public trust, and it refused to give him credit for the time he had already been suspended.

4. Disciplinary Counsel v. Spinazze, Case No. 2020-Ohio-957, Decided March 17, 2020. (Part-time Assistant Prosecutor; false statements to Court; conduct involving dishonesty and conduct prejudicial to administration of justice; Six-month suspension) Anthony Perin Spinazze of Sylvania, Ohio was working as a part-time prosecutor for the City of Sylvania and was assigned to prosecute an OVI case against a defendant with two prior alcohol- related offenses. Spinazze met with the defendant’s lawyer and one of the arresting officers. The defendant’s attorney offered a plea agreement in exchange for a reduced charge. The arresting officer objected to the deal, but Spinazze recommended it to the Court and falsely indicated to the Court that there were some evidentiary problems with the case. He also falsely noted in the case file that he recommended the reduced charge because the Court was going to dismiss the case. Spinazze was later questioned by the City’s chief prosecutor and admitted that he did not have the officer’s consent to the deal, but he failed to inform her of his misrepresentations to the Court. The chief prosecutor later listened to the Court’s audio recording of the hearing and questioned Spinazze

about his account. Spinazze then falsely claimed that he made a mistake at the hearing and agreed to the defendant’s proposal without first reviewing the file. This too was later exposed as a lie and Spinazze was put on unpaid administrative leave by the prosecutor. Eventually, he was terminated as a part-time prosecutor. Spinazze admitted to the charges of misconduct in the Complaint filed by Relator, but he objected to the proposed suspension and argued that the suspension should be fully stayed. The Court examined the aggravating and mitigating factors and found that Spinazze admitted to all the charges. It held that when misconduct involves a course of conduct that involves dishonesty, particularly misrepresentations to a Court, an actual suspension is generally imposed. Spinazze was suspended for six months.

5. Disciplinary Counsel v. Ford, Case No. 2020-Ohio-998, Decided March 19, 2020. (Pattern of misconduct involving neglect, failure to communicate with clients; deceptive practices toward clients and in disciplinary process; Indefinite suspension) Elizabeth Lorraine Ford of Cincinnati had a record of two suspensions for failure to register as an attorney. In 2018, Relator charged Ford with misconduct in her representation of four separate clients. The charges included allegations that Ford failed to comply as soon as practicable with her clients’ reasonable requests for information, failed to deposit unearned fees in a trust account, engaged in dishonesty, fraud, deceit or misrepresentation and failed to cooperate in the disciplinary investigations of these charges. After a hearing, the Board issued a report that found Ford committed the misconduct and engaged in dishonest conduct during the disciplinary process. It recommended an indefinite suspension and no objections were filed. The Court reviewed the findings in the case involving the four clients. It found that Ford engaged in a pattern of misconduct, committed multiple offenses and demonstrated a lack of cooperation throughout the disciplinary process. Relator recommended a

14 | Columbus Bar L aw yers Quarterly Summer 2020


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. two-year suspension with conditions upon Ford’s reinstatement, but the Board recommended that Ford be suspended indefinitely. The Court noted that neglect of legal matters coupled with lack of cooperation in the disciplinary process generally warrants an indefinite suspension. When these factors are further linked to dishonesty in any form, “an indefinite suspension is all but guaranteed”, as seen in Disciplinary Counsel v. Golden (97 Ohio St.3d 230 (2002)). Ford was indefinitely suspended with the requirement that her reinstatement be based on compliance with an evaluation by OLAP and its treatment recommendations and a prognosis from a qualified healthcare professional that she is capable of returning to the competent, ethical and professional practice of law.

suspended for a year. She paid her fine and received a three-day credit for completing a driver-intervention program. She was charged by Relator with two counts: failing to act in a manner that promotes public confidence in the judiciary and abusing the prestige of the office by her unsolicited statements to the arresting officer that she was a judge. The Board found no aggravating factors and determined that Doherty had a clean record, cooperated in the disciplinary process, had other penalties and sanctions imposed for her conduct and presented evidence of her good character and reputation. Based on other cases cited by the Court involving judges who were arrested for OVI, the Court accepted the Board’s recommendation and publicly reprimanded Doherty for her conduct.

6. Disciplinary Counsel v. Doherty, Case No. 2020-Ohio-1422, Decided April 14, 2020. (Driving while intoxicated; failure to act in manner that promotes public confidence in the judiciary; abuse of prestige of a judicial office; Public reprimand)

7. Disciplinary Counsel v. Buttars, Case No. 2020-Ohio-1511, Decided April 21, 2020. (Felony conviction for theft; excessive fees; misrepresentations to court and conflict of interest; Indefinite suspension)

Judge Rebecca L. Doherty of Ravenna, Ohio is a judge on the Portage County Court of Common Pleas. She was arrested in 2019 for OVI after she drove off the road in a snowstorm and was observed by the arresting officer to be intoxicated. When questioned by the officer she repeated several times that she was a Portage County Common Pleas Judge. She also admitted she had been drinking and stated, “I am so intoxicated.” She was charged with a first-degree misdemeanor count of OVI and sentenced to 180 days in jail with 177 of the days suspended. She was fined and her driver’s license was

Austin Roan Buttars of Dublin, Ohio was charged with multiple counts of misconduct after he was found guilty of a felony for taking money from a client who suffers from mental illness, alcoholism and depression. Franklin County Protective Services filed a grievance against Buttars, and he was later indicted for theft from a person in a protected class. Buttars was retained by the client to provide various services such as representing her in an eviction action and handling her mother’s estate. But in addition, Buttars charged the client for many personal services that were unrelated to his engagement as a lawyer. The parties stipulated that

15 | Columbus Bar L aw yers Quarterly Summer 2020


Buttars transferred about $148,000 from the client’s account to his law firm, but the value of his legal work amounted to about $19,000. At the time of the decision by the Supreme Court in the discipline case, Buttars had repaid substantial amounts, but still owed the client about $66,000. In most cases that involve theft from a client, the presumed sanction is disbarment, but here the Court found sufficient mitigating circumstances to order an indefinite suspension, which was conditioned on making full restitution. Buttars made a good faith effort toward restitution at the time of the hearing, accepted responsibility for his misconduct and appeared to be remorseful. As a result, the Court accepted the Board’s recommendation of indefinite suspension rather than permanent disbarment.

8. Disciplinary Counsel v Schwarz, Case No. 2020Ohio-1542; Decided April 22, 2020. (Illegal conduct; conduct that adversely reflects on lawyer’s fitness to practice; Indefinite suspension) Harold McClure Schwarz III of Akron was suspended on an interim basis in 2019 after his conviction for attempted unlawful sexual conduct with a minor. His felony conviction was based on his solicitation of an undercover lawenforcement officer posing as a 15-year old male. Schwarz admitted to exchanging sexually charged text messages with the officer and arranging to meet him at a restaurant. He pled guilty to one of the counts in the indictment, was designated as a sex offender and sentenced to three years of community control. Relator filed a complaint and the parties stipulated to the charges that Schwarz engaged in an illegal act and committed acts that adversely reflect on a lawyer’s fitness to practice. The Board recommended an indefinite suspension and the Court agreed. The Court found that Schwarz acted with a dishonest or selfish motive. It also noted that Schwarz did not appear to express remorse

and or understand the gravity of his offense. However, the Court found that Schwarz had a clean record, cooperated in the disciplinary process was seeking help from a clinical psychologist and OLAP, and he presented evidence of his good character and reputation. The Court indefinitely suspended Schwarz with no credit for the time served on his interim suspension and conditioned his reinstatement on compliance with the terms of his probation and completion of his OLAP contract.

9. Disciplinary Counsel v. Porzio, Case No. 2020-Ohio-1569, Decided April 23, 2020. (Magistrates are subject to Code of Judicial Conduct; conduct that fails to promote public confidence; ex parte communications and failure to withdraw from a case; Sixmonth suspension, fully stayed) Barbara Porzio of North Royalton, Ohio was a Magistrate for the Lake County Court of Common Pleas in 2019 when she heard a case involving a petition for civil stalking by one neighbor against another neighbor and a counterpetition by the defendant. After hearing evidence from both parties, Porzio excused the defendant and proceeded to discuss the case with the plaintiff and his witnesses. During this meeting, she made offhand and inappropriate remarks about the defendant. Even though she announced in Court that neither party had proved their case for a civil stalking order, several months later, Porzio issued an order that gave the plaintiff a five-year civil protection order and denied the defendant’s counterpetition. Relator charged Porzio with engaging in improper ex parte communication and violating other rules under the Code of Judicial Conduct. Porzio stipulated to the violations and the parties jointly recommended that she receive a public reprimand. However, after a hearing the Board recommended that the Court impose a six-

16 | Columbus Bar L aw yers Quarterly Summer 2020


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month fully stayed suspension. Neither party objected. The Court first confirmed that the Code of Judicial Conduct also applies to magistrates. It determined that Porzio committed misconduct by violating the rules that requires a judge to act at all times in an impartial manner, that a judge refrain from ex parte communications on a pending matter and that judges disqualify themselves where their impartiality may reasonably be questioned. The Court determined that despite Porzio’s long history as a magistrate, her character evidence and her service to the profession, it must impose a sanction greater than a reprimand. The Court noted that “Porzio not only announced her intended decision to one party during a lengthy ex parte communication, she ridiculed the absent party, made inappropriate comments about the parties’ religions, used profanity, and later failed to recuse herself from the case, despite having had the time to review the audio recording of her ex parte communication and reflect on how her actions might have reasonably created at least the appearance of partiality.” Porzio was suspended for six months with the suspension fully stayed.

10. Disciplinary Counsel v. George, Case No. 2020-Ohio-2902, Decided May 13, 2020. (Criminal conviction for wire and securities fraud; committing illegal act, conduct involving dishonesty and conduct that adversely reflects on lawyer’s fitness to practice; Indefinite suspension) Mark Minor George of Independence, Ohio had his license suspended in 2016 on an interim basis when he was convicted of wire and securities fraud in federal court. George served time in prison and upon his release in a halfway house. Disciplinary Counsel filed a complaint against him in 2019 arising out of his criminal conviction. He was charged with committing an illegal act that adversely reflects on a lawyer’s honesty or trustworthiness, conduct involving dishonesty, fraud, deceit or misrepresentation and conduct that adversely reflects on a lawyer’s fitness to practice law. George was found guilty based on his association with KGTA Petroleum, for which he served as an escrow agent. KGTA conducted a four-year scheme in

17 | Columbus Bar L aw yers Quarterly Summer 2020


which it promised investors a large return on the resale of petroleum products. The scheme defrauded more than 70 investors of over $31 million. George was not a part of the scheme except that he received a monthly fee for his services as an escrow agent and gave it an air of legitimacy. The parties stipulated to all the charges against George and the Board recommended an indefinite suspension with no time credited for George’s interim suspension. George did not object to the recommendations of the Board. The Court reviewed the stipulated aggravating and mitigating factors and determined the proper sanction was an indefinite suspension. This was based on the fact that George did not actually participate in the scheme, he was remorseful for being a part of it, his charitable works, the character evidence presented and the fact that he was separately punished for his crime. George was indefinitely suspended with conditions on his return to the practice, and he received no credit for time served on his interim suspension.

11. Disciplinary Counsel v. Tinch, Case No. 2020-Ohio-2991, Decided May 20, 2020. (Misconduct and failure to respond to Complaint resulting in interim suspension; Indefinite suspension with no credit for time served) William Matthew Tinch of Middletown, Ohio was suspended on an interim basis in 2018 after he failed to answer Relator’s Complaint and respond to the Court’s show-cause order. He did respond to an Order to show why his interim suspension should not be converted to an indefinite suspension, and the matter was remanded to the Board for consideration of any mitigating evidence. Tinch was deemed to have admitted to the charged violations because of his failure to respond, and the matter was heard by a panel appointed by the Board. The Board recommended that Tinch be indefinitely suspended with no credit given for the time served on his interim suspension. The Board based its recommendations after finding that Tinch engaged in a pattern of misconduct from 2015 to 2017 where he failed to deposit unearned fees into his trust account, failed to keep his clients informed of developments, failed to pursue his client’s legal objectives and lied to clients on a number of occasions.

His behavior became erratic. On one occasion he offered to supply Xanax to a client and solicited another client for prescription medications. At a hearing before a Magistrate in Domestic Court, the hearing was adjourned so that the Judge could speak with Tinch. This led to a confrontation with the Judge and his arrest. Tinch later was indicted on forgery and petty theft for taking fees earned by his law firm. He was also charged with burglary after breaking into his mother-in-law’s home. Tinch was found to have committed numerous violations of 10 different ethical rules. In determining to sanction him with an indefinite suspension the Court reviewed aggravating and mitigating factors. It found Tinch acted with a selfish motive, committed multiple offenses, failed to cooperate in the disciplinary process and harmed multiple clients who were vulnerable. In mitigation, the Court found that Tinch had no prior disciplinary record, he made full disclosure to the Board, he presented positive character evidence, he established proof of a chemical-dependency disorder and he was participating in an OLAP program for treatment. However, the Court also found that it did not believe Tinch accepted full responsibility for his misconduct as his testimony included many excuses and justifications for his behavior. The Court recognized that the sanction for misappropriation of client funds is normally disbarment, but it accepted the Board’s recommendation of indefinite suspension based on Tinch’s evidence of his addiction and commitment to recovery. Tinch was indefinitely suspended with no credit for time served. He was ordered to make restitution, complete all treatment under his OLAP contract and submit proof from a qualified professional that he is capable of returning to the competent, ethical and professional practice of law.

Nelson E. Genshaft, Esq.

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

18 | Columbus Bar L aw yers Quarterly Summer 2020


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19 | Columbus Bar L aw yers Quarterly Summer 2020


LAW SCHOOLS:

Painful Lessons from the Great Recession BY JASON M. DOLIN

“Those who cannot remember the past are condemned to repeat it.” -George Santayana Here we go again: flashbacks to the Great Recession and the law school employment wreckage suffered by the “lost generation” of law students who graduated from 2009 through 2011. We’ll discuss the employment numbers for Ohio’s law school Class of 2019 in an upcoming article, but I must add something I never thought I’d say: those numbers are irrelevant. Because the Class of 2019’s employment numbers do not fully reflect the impact of the pandemic recession on the legal economy – the employment data is gathered through March 15 - they are a meaningless predictor of employment for the graduates of the Class of 2020 and beyond.1 In April, the U.S. unemployment rate stood at 14.7 percent, the worst since the Great Depression.2 For comparison, the unemployment rate during the Great Recession peaked in October 2009 at 10 percent.3 As of May 7, 33 million Americans had lost their jobs in the span of seven weeks. Most think they will get their jobs back at some point.4 Economists feel otherwise. A report from the Becker-Friedman Institute for Economics at the University of Chicago indicated that 42 percent of recent pandemic related layoffs would result in permanent

job loss.5 In the span of less than two months, all – ALL – of the job gains since the Great Recession have been wiped out.6 If you think those jobs that took 12 years to build are coming back any time soon, I have a bridge to sell you in Brooklyn. The coming damage to the legal sector from the pandemic, like to the rest of the economy, will be severe. Count on it. The layoffs have already started, and the number of law firms laying off attorneys and staff, nationwide, keeps growing.7 Some of those jobs will never come back. Some law firms will die.8 Ohio will be not be spared. The law is a conservative profession, and the avoidance or limitation of risk is built into our professional DNA. If you think hiring partners are going to rush pell-mell into massive and rapid rehiring after we’re through the pandemic, you’re dreaming. While in theory this legal employment recession could be sharp and short, given what’s already happened and the cautious nature of our profession, it seems unlikely.

Think Again If the pandemic recession is anything like the last one, graduating college seniors will start thinking that law school is a good place to wait it out. Law schools, of course, encouraged that kind of thinking in the past and are starting to encourage it now. We’ve seen this show before. In March 2010, in the depths of the then-legal

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employment recession, one well-known law dean had this to say: “As the economy recovers, there is every reason to believe that this [legal hiring] will improve. For those considering going to law school, they have reason for hope that the market for lawyers will be vastly improved by the time they graduate.”9 Ten years after the dean made that illadvised projection, the legal economy still had not recovered all the jobs it lost in the Great Recession.10 In 2014, four years after the law dean’s employment ponderings, another legal academic prognosticator had this to say: “...recent law school graduates and current and future law students are standing at the threshold of the most robust legal market that ever existed in this country—a legal market which will grow, exist for, and coincide with, their entire professional career.”11 Right. And following in that great tradition of employment

predictions by legal academics, one former law professor offered this after the pandemic struck: “In the short term, going to professional school – be it business school, law school or something else – is a good idea because it’s a refuge from an inhospitable job market, and the job market will be better three years from now.”12 Apparently in legal academia there’s no malpractice claim for dispensing bad advice. Graduating into a bad legal economy is damaging to a graduate’s financial health and has negative career implications that last for years. Historically, college seniors who graduated into a recession take lower paying jobs at less prestigious companies and economists have estimated that the negative impact of that unfortunate timing can last 10 or 15 years.13 But that economic gravity applies to law graduates as well. One study of Ohio’s 2010 law graduates - a luckless class that graduated in the middle of the Great Recession showed that five years after graduation, they continued to struggle, with 10 percent listing themselves as solo practitioners (although they had no online presence). Solo practice is often the choice of last resort for recent graduates who can’t find other employment. Two-thirds of the Ohio Class of 2010 switched jobs within a four-

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year period. That is almost double the turnover rate for the class of 2000 and an indicator that they may have settled for jobs they didn’t want because there was little else available.14

The Lessons of the Great Recession So if you, or someone you care about, are thinking about investing a lifetime of savings or debt in a legal education, it is worth revisiting some lessons from the last great legal employment slump. But what are those lessons? Here are a few that some of those who chose to “wait out” the Great Recession in law school learned the hard way. 1. Law school is not a good place to hide out waiting for a recovery. If you think you can ride this out and the legal employment picture will be rosy when you graduate, think again. The Great Recession taught us that the legal economy crashes quickly and recovers slowly. As stated above, by 2020, more than 10 years after the Great Recession of 2007–2008, the legal economy had still not recovered all the jobs it lost from the Great Recession. 2. The debt clock starts upon graduation, even if you’re not working. Graduating into a bad economy is an expensive risk. There will be fewer jobs and fewer still good ones. But your lender won’t care. Ask a Great Recession law graduate about the joys of debt service on $100,000 debt while un(der)employed. 3. When you graduate in three years, you will not only be competing for a job against your graduating class, but against three or more years of un(der)employed law graduates who graduated before you and were also waiting for the recovery. Good luck. 4. Law professors and law schools are conflicted; they need more students to fill their coffers while you need fewer students and less competition to find a job. You will likely start to hear from conflicted law schools that things will be better in three years. Don’t believe it. We heard similar nonsense from legal academia during the Great Recession. They need students to pay tuition so they can keep their jobs and the perks that come with them. They don’t have to worry about finding a job. You do. 22 | Columbus Bar L aw yers Quarterly Summer 2020


Because the Class of 2019’s employment numbers do not fully reflect the impact of the pandemic recession on the legal economy—the employment data is gathered through March 15—they are a meaningless predictor of employment for the graduates of the Class of 2020 and beyond. 5. The legal world will change from the pandemic in ways we cannot predict. And based on recent experience, it will change in a way that requires fewer, not more, lawyers (unless you specialize in bankruptcy). After the Great Recession we saw an acceleration of outsourcing to legal service companies that do research, discovery and other jobs that used to be done by young lawyers. Those service companies could do equivalent work cheaper than law firms. The pressure on clients to reduce legal expenses will only increase resulting from the pandemic recession. 6. If you can’t or won’t delay starting law school, drive a hard bargain on tuition. Law schools need to fill seats. If you have kids who are nearing college graduation and are thinking of law school, you might want to tell them to wait. The college graduates of 2008 and 2009 thought law school was a good place to hide until the economy picked up, except the economy didn’t pick up until many years later. In the meantime, they had bills to pay and loans coming due, and it was all pretty ugly. Entering what may be the worst economy since the Great Depression is not the time to risk taking on a lifetime’s worth of law school debt. It’s an expensive gamble. One more thing. Everyone thinks they’ll beat the odds, but the Great Recession taught us that most won’t. The law is a service profession. We service the general economy. That hasn’t changed and won’t change through the pandemic. The economic health of our profession is tied to the health of the overall economy and as I write this, the overall economy is a disaster with no clear path in sight. For the sake of our future law

graduates I hope I’m wrong, but recent history tells me I’m not. The economy will come back some day, but when? And what permanent damage will have been done to the general economy and the legal economy in the interim? Even with reduced graduating class sizes in recent years, Ohio still had too many lawyers for the available pool of paying clients before the pandemic recession. Painful history tells us it will likely have fewer paying clients afterwards. Don’t do it. Wait this one out: do something other than going to law school. 1

https://www.americanbar.org/content/dam/aba/administrative/legal_education_ and_admissions_to_the_bar/Questionnaires/2020employmentquestionnaire/2020aba-employment-protocols-class-of-2019.pdf 2 https://www.washingtonpost.com/business/2020/05/08/april-2020-jobsreport/?itid=hp_no-name_hp-breaking-news%3Apage%2Fbreaking-news-bar 3 https://www.nytimes.com/2020/05/08/business/stock-market-coronavirus-jobsreport.html 4 https://www.washingtonpost.com/business/2020/05/07/nearly-80-percent-laidoff-workers-believe-they-will-return-their-old-job-post-ipsos-poll-finds/ 5 https://bfi.uchicago.edu/working-paper/covid-19-is-also-a-reallocation-shock/ 6 https://www.cnbc.com/2020/04/23/the-us-economy-has-now-erased-all-jobgains-since-the-great-recession.html 7 https://abovethelaw.com/2020/04/the-covid-crisis-law-firm-layoff-trackerwhats-your-firm-doing-to-survive/ 8 https://www.abajournal.com/news/article/some-law-firms-will-die-withoutquick-cuts-consultant-says-which-ones-acted-this-past-week 9 See Erwin Chemerinsky in March 2010 Saturday Night Magazine, at http://www. scribd.com/doc/31750616/March-2010, page 20. 10 https://www.law360.com/articles/1240283/legal-industry-jobs-hit-new-highwater-mark-since-recession 11 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2404603 12 https://abovethelaw.com/2020/04/should-law-schools-be-expecting-anotheronslaught-of-applicants-thanks-to-the-pandemic/ 13 https://www.nytimes.com/2020/03/27/business/coronavirus-class-of-2020jobs.html 14 https://www.lawschoolcafe.org/2015/03/14/what-happened-to-the-classof-2010/

Jason M. Dolin, Esq.

jmdolin614@gmail.com

23 | Columbus Bar L aw yers Quarterly Summer 2020


It’s a Small World

Meetings from a

SOCIAL DISTANCE by KEVIN C. ROUCH

In these crazy and unpredictable days, the practice of law continues, but with a different tone and changed methods. Some solos and small firms have yet to return to their offices, and those that have may never again work full-time away from home. For lawyers like me, more than 60 years old and checking some medical boxes, what seemed like a temporary situation has become a way of life.

For all of us in the legal field, one of the challenges going forward will be interacting with clients without putting them or ourselves at risk. To allay the fears that would accompany a personal meeting, and to have a more effective experience that goes beyond a simple telephone call, most of us have opted for the video meeting online. I’ll look at the various platforms businesses are using to connect with clients on your computer screen and discuss a couple of important ethical issues that arise for lawyers in that context. Zoom has become synonymous with the online meeting. The company has seen exponential growth

24 | Columbus Bar L aw yers Quarterly Summer 2020


As with all meetings, lawyers should take extra care to protect confidentiality and attorney-client privilege by making sure that only the lawyer, members of the legal team and the client are taking part in the meeting and that they are doing so without anyone else overhearing the conversation. in 2020. Reuters recently reported that Zoom went from a previous high of 10 million users to more than 200 million users in March. As might be expected, this growth caused some early problems for Zoom, the most important of which was how to keep its website, and our meetings, secure. “Zoombombing” became a familiar term around the globe, describing what happens when uninvited guests enter into the conversation. Zoom has updated its software during the quarantine and fewer cases of security breaches have been reported as of late. Before we compare online hosts for your meeting, a couple of terms are important to know: video conferencing and web conferencing. Video conferencing is typically thought of as a two-way conversation between participants, a real-time collaboration in which the attendees can see and hear each other (unless, of course, they turn off their video and/or mute their audio). Web conferencing is most often a presentation where the presenter doesn’t see the other participants, e.g., a webinar. The lines of these two types of communication are becoming blurred as the demand for both has increased, so don’t be surprised if they are used interchangeably.

Meetings with clients in the context of this article use video conferencing tools. Here are a few of the main players that provide a free plan when using their platform (in alphabetical order): •

Cisco Webex Meetings (webex.com) - free plan allows up to 100 participants with a limit of 50 minutes for each meeting Microsoft Teams (office.com/teams) - free service available for users who are not subscribers to Microsoft 365; recently increased the number of possible users for each video meeting to 20 Skype Meet Now (skype.com/en/free-conferencecall) - free service that requires no sign-up or download; no time limit for up to 50 participants Zoom (zoom.us) - free plan allows up to 100 participants; for more than two participants at a time, there is a 40-minute time limit

A quick Google search will turn up scads of other services, both free and paid. Usually, those vendors that offer free services also offer premium plans that increase user and time limits, as well as a more robust set of tools. Even the free services allow collaboration

25 | Columbus Bar L aw yers Quarterly Summer 2020


during the meeting, with the ability to share documents and screens and chat with the other participants during the meeting via text. For those who are worried about what’s behind them in their home office, most services allow you to create virtual backgrounds or blur your background. Lawyers have specific ethical concerns of privacy, confidentiality and attorney-client privilege when meeting online. First, your connection to the internet must be secure. If you’re using Wi-Fi through your home modem, the connection should be password-protected. If you’re using a public Wi-Fi network, heaven forbid, you should employ a Virtual Private Network (VPN). VPN’s create anonymity by masking your internet protocol address where prying eyes could otherwise see you. There is no shortage of companies offering VPN products online. Regarding security issues with the video conferencing platforms, lawyers should review the platforms’ privacy policies and make sure that each has industry-standard security features, including end-to-end encryption (E2EE). E2EE prevents third parties from accessing data during its transfer from one system to another. It is also important to use passwords wherever you can when inviting, attending and hosting meetings. Some services make it optional to use passwords lawyers should make it mandatory. Another layer of security can be added by making participants “sit” in a “waiting room”, requiring the host to admit them to the meeting.

they are joining the meeting. If there’s any question about privacy on their end, you can ask them to use headphones and communicate with you through the chat feature. As we all get more experienced with working remotely, a practice that certainly won’t disappear even when our society opens up completely, we will get better at collaborating online and the video conferencing services will improve their features. For now, lawyers should use these services with an eye toward protecting their clients in each and every meeting.

Kevin Rouch, Esq.

Albeit Weiker, LLP kevin@awlawohio.com

As with all meetings, lawyers should take extra care to protect confidentiality and attorney-client privilege by making sure that only the lawyer, members of the legal team and the client are taking part in the meeting and that they are doing so without anyone else overhearing the conversation. It’s a good practice to ask your clients to seclude themselves in a “closed door” space from wherever

26 | Columbus Bar L aw yers Quarterly Summer 2020


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Points of Practice

Business,

INTERRUPTED by GARY MOLL

With a nod to “Girl, Interrupted”, the 1999 film which begins with the concept of a parallel universe and how easy it is to slip into one, the protagonist compares insanity to an alternate world and discusses how some people fall into insanity gradually while others just snap.

Similarly, the United States entered March 2020 looking “normal”, only to be completely transformed by the end of the month to a time and place that few imagined possible. COVID-19 and, more importantly, the government’s response to combatting and controlling the virus took a vibrant economy by almost any standard (e.g., GDP, unemployment rate, stock market indexes, etc.) and, almost overnight, transformed the economy to results not seen since the Great Depression and the Recession of 2008.

30 | Columbus Bar L aw yers Quarterly Summer 2020


This article is not an attempt to judge the government’s response on legal, constitutional, moral, medical or political grounds, but instead is designed to look at the financial effects to “non-essential” businesses that suffered some amount of business damages and/or lost profits as a result of a state’s actions that directly shuttered their operations. This article is being written in mid-May after guidance from the federal government and actions and steps were taken by state governments to “re-open the economy.” States such as Georgia, Florida and Ohio are all taking steps toward normalcy while other States are envisioning much slower returns. One of the hallmarks of the United States was our creation as a constitutional republic that was designed to ensure that governments were created by the people and for the people, to help protect certain inalienable rights. Private property rights also have an esteemed place in our society, so it was certainly unusual, if not unprecedented, to see the level of power that many state governments were able to exert over otherwise private businesses. The direct result of the state government dictates was to effectively close “nonessential” businesses from conducting business. These companies have in turn, experienced lower revenues (or in many cases, no revenues). With declining or disappearing revenues, the companies have also experienced lower or disappearing profits,

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with many companies experiencing losses as many of the fixed costs associated with doing business did not “go away” just because the companies were not conducting business. The U.S. Chamber of Commerce recently released results from a special survey on the impact of COVID-19 in the U.S. small business community.i Among the results:

COVID-19 and, more importantly, the government’s response to combatting and controlling the virus took a vibrant economy by almost any standard... and, almost overnight, transformed the economy to results not seen since the Great Depression and the Recession of 2008. 31 | Columbus Bar L aw yers Quarterly Summer 2020


One quarter of small businesses already shut down. One in four (24 percent) small businesses have shut down temporarily in response to COVID-19. More temporary shutdowns likely in coming weeks. Among those who haven’t temporarily shut down yet, 40 percent report it is likely they will do so within the next two weeks. This means a total of 54 percent of all small businesses report they are closed or could close within the coming weeks. Clock ticking on permanent shutdowns. Fortythree percent believe they have less than six months (including one in 10 that say they have less than one month) until a permanent shutdown is unavoidable.

So there appears to be little question that many, if not the majority of, companies have suffered some amount of business damages and/or lost profits. So now what? For many companies, the first step is likely to review its insurance policy(s) to determine if they can file a Business Interruption claim with their insurance carrier. This step alone is likely to be a source of litigation for years to come as policies likely vary, and, further, the insurance industry cannot likely absorb the magnitude of losses. For others, is it a damage claim directly against the state or local governments that enacted “laws” that effectively shut the companies down?

Regardless of the legal venue, plaintiffs and defendants will both likely look to the financial expert to help quantify the level of damages. The American Institute of Certified Public Accountants has a dedicated Forensic and Valuation Section that has prepared practice aides and other resources to assist the financial expert. Knowledge of any applicable state or federal laws, as well as case law, is necessary to help guide the financial expert. Lost profit calculations are common in business interruption claims, breach of contract actions, torts and other situations involving accidents and catastrophes (e.g., fire, weather). The legal principles involved to establish a business damages case involve causation, foreseeability, reasonable certainty and best evidence. Did the defendant’s alleged wrongful conduct cause the damages suffered by the plaintiff? Were the damages reasonably foreseeable as a consequence of the defendant’s actions? Is there reasonable certainty demonstrated based on utilizing the best evidence available with sound methodologies employed and reasonable assumptions made? Often times the financial expert will complete their assignment assuming that the client and legal counsel will prevail on the legal theories of the case, thus resulting in

32 | Columbus Bar L aw yers Quarterly Summer 2020


damages. If the client and legal counsel do not prevail on the legal theory of the case, the issue of damages is moot. Damage model components involve the preparation of an expectancy model that considers elements such as the loss period, lost revenues, avoided costs and other items. Essentially the model will seek to show the “But-For” profits that would have been achieved by the plaintiff, but-for the detrimental activity(s) of the defendant. It is important to note that as of the date of trial, there will exist some level of “past” lost profits from the date the harmful act occurred until some later date, and that in fact, there may be some element of “future” lost profits extending from the trial date to some point in the future.

As we sit in the middle of the COVID-19 pandemic, the magnitude of business damages experienced (and to be experienced) by small businesses is still unknown. What is likely “known”, though, is that in the very near future, it will take an army of attorneys and financial experts to both file and defend business interruption claims throughout most States in the US. i

MetLife & U.S. Chamber of Commerce Special Report on Coronavirus and Small Business April 3, 2020

Gary A. Moll, MBA, CPA, ASA

Ferguson-Moll Consulting, LLC gary@fergusonmollconsulting.com

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33 | Columbus Bar L aw yers Quarterly Summer 2020


Points of Practice

The New Normal for Law Firms in a Post-Pandemic World BY STEVEN M. LOEWENGART

Law firms have a reputation for being somewhat resistant to change, but the COVID-19 pandemic forced all of us to adapt despite whether we were ready or willing. There is no question that law firm work flows were severely disrupted, which led to several firms being forced to lay off employees, reduce work hours and/or implement salary cuts. I’m concerned about the economic impact of these measures, and I’m sure I am not the only law firm leader who has been kept up at night worrying about the financial toll the pandemic has had on our office families. As leaders, we find ourselves asking if things will ever get back to normal in terms of work flow and staffing, but the answer is likely that the whole idea of “normal” will just be different. All industries – including legal - are in the midst of a new normal. Many of the changes that were implemented in response to the virus will likely become permanent parts of the work environment. Law firms around the country will likely see more socially-distanced cubicles, hand sanitizer stations

and mandatory face coverings. There will also be various new operating procedures including an increase in telework and a new reliance on digital platforms for conducting business. Early in the pandemic, many firms adjusted to promote social distancing by encouraging attorneys and staff to limit the number of people in offices and to work remotely when possible. For most firms this required a lot of coordination with technology departments for equipment, necessary software and log-in help. The expenses that firms incurred to enable remote work will not be pointless expenditures; working from home is part of the new normal, and firms have been forced to embrace it.

34 | Columbus Bar L aw yers Quarterly Summer 2020


The one thing that has remained the same throughout the pandemic is the need for law firms to take care of their people and evaluate the mental health of our lawyers and staff members. The legal industry is a high-stress environment, and the pandemic added another layer of anxiety from the isolation and associated fear.

Work is continuing to move to digital platforms, and the legal industry’s digital transformation has been accelerated by the current situation. Firms require extremely high data security and the industry is implementing the needed programs to enforce data protection on all levels. Since the ESIGN Act in 2000, electronic signatures are legally binding, so little to no face-to-face interaction or paper forms are needed to produce and even sign legally binding documents. Attorneys who continued to rely on printed paper copies have had to adjust to electronic documents and tools. Even courts are embracing electronic and video technology, debuting virtual court operations. As judges and staff get used to using these tools, they will

become permanent changes within our legal system. Hopefully all government agencies will quickly keep pace. In firms, more traditional processes (e.g., billing) have also transitioned to digital platforms. Many firms have implemented new service delivery models both internally and externally. Video conferencing is now commonplace, and programs such as electronic accounting and payment services, cloudbased document management and matter lifecycle management programs are integral parts of the modern law firm. There is no doubt that litigation work initially declined due to the pandemic, both in terms of courts being

35 | Columbus Bar L aw yers Quarterly Summer 2020


closed and companies being forced to reduce spending. But, on a positive note for litigators, the pandemic is already spiking a wave of new lawsuits brought about by COVID-19. In fact, law firms should be preparing for a potential uptick in employment-related litigation involving safety, retaliation and wage and hour claims due to complex return to work precautionary measures and industry rescaling issues. In-house legal departments will try to do more with less while having to work as more of an integrated team with other company departments as well as outside firms. As budgets remain tight, unnecessary expenses will be delayed but businesses will still face many challenges that require legal services. Consumers will turn to the firms that not only demonstrate value but are flexible and have the capacity to scale. Short-term cash flow will remain a concern among businesses and may force law firms to re-think fee structures. Flat fees and alternative pricing options will be increasingly welcomed by businesses which have restricted spending and need to adhere to limited budgets. The firms that have developed high-level, cost-cutting technology and integrated services delivered at a value to clients will succeed.

and associated fear. As law firm leaders, we cannot ignore the fact that our teams have been under a great amount of stress given the unprecedented nature of all that has unfolded over the last several months. We need to ensure a renewed focus on the well-being of firm employees by encouraging mindfulness, physical activity, and various other forms of programming in support of a healthy workforce. And with so many employees working remotely, now more than ever we must figure out ways to keep our workforce motivated, engaged and feeling great in mind, body and spirit.

The one thing that has remained the same throughout the pandemic is the need for law firms to take care of their people and evaluate the mental health of our lawyers and staff members. The legal industry is a high-stress environment, and the pandemic added another layer of anxiety from the isolation

Steven M. Loewengart, Esq.

In times of uncertainty, we look to brands and services we trust, and legal services are no different. The differentiated, well-recognized firms that are known for delivering quality service will continue to be successful due to their established clients turning to them for trusted advice and services. There may be fewer working lunches and in-person conferences, but the world is more digitally connected now and the law firms that have adjusted, demonstrated agility and can offer diverse legal services will continue to thrive.

Fisher Phillips sloewengart@fisherphillips.com

36 | Columbus Bar L aw yers Quarterly Summer 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

37 | Columbus Bar L aw yers Quarterly Summer 2020


Bar Happenings While the CBA continues to operate remotely, we look forward to welcoming our members back in the near future!

Virtual swearing in of new CBA President Rob Erney (by Mary Erney)

Ask the Attorney returns with social distan cing

CBA Virtual Annual Meeting

“Creating a Statewide Sentencing Database� conversation (hosted by the Ohio Metropolitan Bar Association Consortium)

Columbus Bar Foundation Virtual Annual Meeting

Bench Bar Conversations on court operations during the pandemic

38 | Columbus Bar L aw yers Quarterly Summer 2020


Bar Happenings

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

SUMMER 2020

july

30 august

6

august

13

august

20

august

21

august

28

Live CLE Webinar: An Analysis of Bostock v. Clayton County 12:00-1:00pm on Zoom • 1.0 CLE Hour The U.S. Supreme Court held that workplace discrimination based on an individual’s sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. This class will analyze the case, its history, and where we go from here. Register: www.cbalaw.org/cle

Live CLE Webinar: Dealing with Aggressive Written Discovery 1:00-2:30pm on Zoom • 1.5 CLE Hours (with 0.5 Prof. Conduct) Frustrated by litigation that has gone off the rails due to massive amounts of discovery demands? You are not alone. Learn the rules that will allow you to ethically curb those demands while taking control of the case with an eye towards resolution. Register: www.cbalaw.org/cle

Live CLE Webinar: Working with a Professional Genealogist 12:00-1:00pm on Zoom • 1.0 CLE Hour Do you know the difference between a forensic genealogist and an heir searcher? Why would you need a professional genealogist? This program explores how such a person can deliver valuable information to help attorneys and their clients. Register: www.cbalaw.org/cle

Community Conversations: Race and the Criminal Justice System 12:00-1:30pm on Zoom • Jury Selection, Sentencing & Specialty Dockets Please join us for the second conversation in our 3-part series on Race and the Criminal Justice System. All members of the community are invited to attend. Register: www.cbalaw.org

Live CLE Webinar: Medicare Super Liens & Personal Injury Issues 11:00am-12:30pm on Zoom • 1.5 CLE Hours (with 0.5 Prof. Conduct) The negligence practice area is rife with pitfalls. One of the biggest, and least understood, obstacles to closing the case after settlement is satisfying lien holders, particularly Medicare/ Medicaid liens. This class will identify obstacles and solutions. Register: www.cbalaw.org/cle

Live CLE Webinar: Early Dispute Resolution Protocols 1:00-2:30pm on Zoom • 1.5 CLE Hours (with 0.75 Prof. Conduct) Within the first twenty minutes of hearing about a dispute and a preliminary call to the other side, most advocates know roughly where a dispute should, and will, settle. So why don’t most matters resolve in a few weeks? Register: www.cbalaw.org/cle

39 | Columbus Bar L aw yers Quarterly Summer 2020


Summer ‘20: Election Law

The

Women of Our Past BY CHRISTINA WIEG

100 Years of Women’s Suffrage This year marks the 100-year anniversary of the 19th Amendment, which guaranteed women their constitutional right to vote. Though the amendment was ratified in 1920, the struggle to secure women’s right to vote began decades earlier. In 1848, the first Women’s Rights Convention took place in Seneca Falls, New York, laying the framework for the women’s suffrage movement. The movement accelerated its efforts with the passage of the 15th Amendment in 1869, which granted black men the right to vote while still excluding women.

The large-scale national organizational efforts were fundamental to the success of women’s suffrage. Leaders in the movement emerged, including Elizabeth Cady Stanton and Susan B. Anthony. Together they cofounded the American Equal Rights Association, which later became the National American Woman Suffrage Association in 1888. However, these organizations largely overlooked black women, leaving them to advocate for themselves. As a result, the National Association of Colored Women was formed in 1896. The NACWC was the consolidation of two separate organizations; the National Federation of Colored Women’s Club, led by Margaret Murray Washington, wife of Booker T. Washington, and the National League of Colored Women, led by Helen Appo Cook.

At a time when women lawyers were rare, Florence E. Allen maintained her own Cleveland, Ohio law practice in 1914. Allen actively campaigned for women’s right to vote in 66 of the 88 Ohio counties, speaking and collecting petitions to put women’s suffrage on the Ohio ballot. 40 | Columbus Bar L aw yers Quarterly Summer 2020


Recognizing the power of solidarity, many other African-American women organizations merged with NACWC to collectively campaign in favor of women’s suffrage and against Jim Crow laws. By 1918, membership in NACWC soared to over 300,000 members nationwide. The NACWC still exists today, with headquarters in Washington, D.C. and active chapters throughout the United States. These organizations petitioned, lobbied and occasionally performed acts of civil disobedience to bring their cause to the forefront. In 1872, Anthony was arrested and fined $100 for illegally voting. In response to the arrest, Anthony gave a bold speech for the time, pointing out: “It was we, the people—not we, the white male citizens, nor yet we, the male citizens—but we, the whole people, who formed the Union. And we formed it not to give the blessings of liberty, but to secure them…And it is a downright mockery to talk to women of their enjoyment

of the blessing of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government—the ballot.” The suffrage movement was alive and well in Ohio during the time, with many Ohio women playing a key role in securing women the right to vote. Harriet Taylor Upton

served as the president of the Ohio Woman’s Suffrage Association in 1899. Upton was responsible for bringing the National American Woman’s Suffrage Association headquarters to Warren, Ohio in 1903, where it remained until 1910. And at a time when women lawyers were rare, Florence E. Allen maintained her own Cleveland, Ohio

41 | Columbus Bar L aw yers Quarterly Summer 2020


law practice in 1914. Allen actively campaigned for women’s right to vote in 66 of the 88 Ohio counties, speaking and collecting petitions to put women’s suffrage on the Ohio ballot. In the 1922 election – the first election in which Ohio Women could vote – Allen ran and won a seat on the Ohio Supreme Court, becoming the first woman elected to any state’s supreme court. While the work of such women eventually secured the passage of the 19th Amendment, the battle proved to be a difficult one. To add an amendment to the U.S. Constitution required the passage by two-thirds of each chamber of Congress and then ratification by 36 of the then-48 states. On May 21, 1919, the U.S. House of Representatives passed the language of the 19th Amendment by a vote of 304 to 80, after a three-andhalf hour debate. Less than two months later, the Senate passed the Amendment by a narrow margin of 56 to 25. With this, the race for state ratification had begun! Throughout the next year, states brought the Amendment to vote, with Wisconsin being the first to ratify the 19th Amendment, less than a week after it was passed by Congress. Ohio followed suit on June

42 | Columbus Bar L aw yers Quarterly Summer 2020


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16, 1919, being the fifth state to ratify the Amendment. In addition, Ohio approved a measure granting Ohio women the right to vote in the November 1920 presidential election should the Amendment not be in effect at that time. This did not go unchallenged; antisuffragists filed suit against the Ohio legislature in Hawke v. Smith. However, the Supreme Court ruled that Ohio’s ratification process was indeed constitutional. Not all states were supportive of the ratification, with Louisiana, Georgia, Maryland, Mississippi and others voting to reject the

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Amendment. However, on Aug. 18, 1920, Tennessee secured the adoption of the 19th Amendment, being the 36th state to ratify. The suffragettes’ efforts finally paid off on Aug. 26, 1920, when the U.S. Secretary of State Bainbridge Colby certified the 19th Amendment. On Nov. 2 of that year, some 9 million women voted in the U.S. elections for the first time.

continues today, it would likely give these founders some solace to know that women’s right to vote now goes without question, thanks to the efforts from these women of our past.

Christina Wieg, Esq.

Frost Brown Todd LLC cwieg@fbtlaw.com

Unfortunately, many of the founders of the suffrage movement never survived to see the passing of the 19th Amendment. However, while women’s struggle for equality

43 | Columbus Bar L aw yers Quarterly Summer 2020


Summer ‘20: Election Law

Accessibility of

VOTING

for People with Disabilities by LISA WURM

Voting in Ohio’s most recent primary proved to be complicated and difficult, in light of the COVID-19 pandemic. For Ohioans with disabilities, it was even more so. While it is unknown what the November general election will look like, the primary demonstrated how essential it is to make decisions prior to Election Day and the need to clearly communicate to voters ahead of time. And most importantly, these decisions should ensure an inclusive, accessible electoral system in which voters with disabilities have equal opportunities to participate in voting processes.

On primary voting day this year, voters with disabilities were able to vote in person. While it was important to have that option available, this was likely too risky for many people with compromised immune systems. To vote from home had additional barriers, as the process involved having a printer to print out an absentee ballot request form or being available to wait on hold with your Board of Elections to request a form, having stamps available to request an absentee ballot or securing stamps if you do not already have them. These can be major barriers for many people with disabilities. Due to the abbreviated timing of the primary election, many voters faced some sort of barrier, especially if you were unable to leave your home, or were blind or with low vision then it is likely someone had to assist you with this process because it is not fully accessible.

Barriers to voting continue to exist for people with disabilities. To truly live up to the promises of our democracy and allow all voters to have a say in who represents them, Ohio’s voting process needs to include everyone. 44 | Columbus Bar L aw yers Quarterly Summer 2020


The Americans with Disabilities Act requires states ensure people with disabilities have equal access to the electoral process. Outside of the debacle that COVID-19 created during the primary, voting has always had challenges for people with disabilities. While what others may do is simply show up at their longtime voting location, showing up on voting day looks different for many people with disabilities. Participating in person on Election Day could involve scheduling and arranging limited accessible transportation (as well as paying additional costs for the transportation) or ensuring a care provider is available. Then you have to navigate the voting process when you arrive with poll workers who may have limited training or experience on how to interact or assist people with disabilities in the voting process. Maintaining privacy and equal access to how a voter with a disability chooses to exercise their right to vote has also historically proved challenging. Voting locations must be basically accessible for voters with disabilities. For many years, voting places were not

physically accessible to people who use wheelchairs or other physically assistive devices. In 2012, the Secretary of State issued a directive which was intended to ensure that all polling locations were physically accessible and some polling locations were changed as a result. When voting by absentee ballot finally came to Ohio, it opened up opportunities for people with disabilities to have the option to vote at home. However, for voters with no or low vision, access to at-home ballots while also maintaining the ability to vote privately was impossible. Privacy of voting is a civil rights issue that is extremely important to voters with disabilities. After attempts to work with the Secretary of State, DRO, in partnership with the National Federation of the Blind, filed a lawsuit that requested equal access to both the SOS website as well as a separate claim to ensure that the absentee ballot process was accessible to people who are blind or with low vision. Eventually, the lawsuit led to the creation of a new accessible absentee ballot marking tool for these voters. You can learn more about the step-by-step process from the video from our partners at All Voting is Local (https://www.youtube. com/watch?v=2Dtm5XDXNWw). DRO operates a voting rights hotline every primary


and general election day to assist people who have questions or are facing time sensitive situations. We receive all types of questions on Election Day. Frequently we receive calls from voters with disabilities who have been hospitalized unexpectedly and don’t know how to vote (the system is particularly problematic for voters who are unexpectedly hospitalized outside of their county of residence). After federal litigation, DRO worked with the Ohio Secretary of State to create a process, though complicated, that allows voters with disabilities hospitalized outside of their county of residence to be able to request a special ballot.

Other Facts About the Rights of People with Disabilities in the Voting Process •

You can vote, even if you have a guardian. Your right to vote can only be taken away if a probate court declares that you are incompetent for voting purposes, specifically. This is very rare in Ohio. People who live in facilities, hospitals or other institutional settings still have a right to vote. The Secretary of State has a special absentee ballot form to request to vote if you cannot leave a facility.

Barriers to voting continue to exist for people with disabilities. To truly live up to the promises of our democracy and allow all voters to have a say in who represents them, Ohio’s voting process needs to include everyone.

Disability Rights Ohio is a non-profit corporation with a mission to advocate for the human, civil and legal rights of people with disabilities in Ohio. DRO is mandated by the Help America Vote Act of 2002 to advocate for the rights of Ohio voters with disabilities and to assist the Secretary of State in fulfilling the Secretary’s obligations to those voters under the federal law.

Lisa Wurm

Disability Rights Ohio lwurm@disabilityrightsohio.org

46 | Columbus Bar L aw yers Quarterly Summer 2020


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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Summer ‘20: Election Law

Extending the

SPHERE BY MICHAEL ROBERTSON

Potential Advantages and Disadvantages of Compulsory Voting in the United States It is only summer and 2020 has already witnessed a presidential impeachment trial, a deadly worldwide pandemic, and sustained protests following the killing of George Floyd. The events of these last several months have made clear that the status quo is not working. But the greatest challenges offer the greatest opportunities for change. These moments have revealed now more than ever that it is time to explore creative ideas to better hold elected officials accountable, improve our healthcare system, and heal the wounds of racial injustice as we strive in the uniquely American quest to pursue “a more perfect Union.”

48 | Columbus Bar L aw yers Quarterly Summer 2020


One idea that may be worth revisiting is the implementation of a mandatory or “compulsory” voting system in the United States. Throughout the last several decades, various democratic countries, including Australia, Argentina, and Belgium, have used some form of compulsory voting.1 Although the nuances vary from country to country, the premise remains the same. Under compulsory voting systems, unless exempted, citizens are required to participate in government elections or be subject to some form of penalty. For the sake of considering the advantages and disadvantages of such a system, it is presumed that any potentially viable compulsory voting system in the United States would need to allow for conscientious or religious objectors and permit political protest in the form of a vote to “abstain” or cast a “blank” ballot.

government as legitimate, the system will have more stability, and people will be more likely to fulfill other civic obligations. Proponents argue that at the political level, compulsory voting would have a tempering effect on the nature of political campaigns and political candidates themselves.4 Parties would no longer drive messaging and money toward efforts to get their base to the polls. Assuming that traditional nonvoters are less partisan than traditional voters, parties would instead be encouraged to focus their attentions more on central issues favored by the majority, rather than volatile issues on the political fringes.5 Compulsory voting would reduce the outsized power of the most vocal minority and reward consensus building at the political centers.

For proponents of compulsory voting, the primary benefits of the system flow from increased voter turnout.2 Although there are many arguments for compulsory voting, they can be placed into three interrelated categories: (1) societal benefits; (2) political process benefits; and (3) individual benefits. The broad societal benefits of compulsory voting stem from an increase in the legitimacy of the governing system and actors as a whole.3 Put simply, the more people that vote, the more representative the government will be of the entire voting-eligible population. If individuals feel their government is more responsible to them, they are more likely to view their

Regardless of the mechanism, increased voter turnout is a goal worth pursuing. Every eligible voter who wants to vote should be able to vote. 49 | Columbus Bar L aw yers Quarterly Summer 2020


On a more singular level, compulsory voting would result in a greater sense that one’s individual voice has been heard, increasing political engagement and decreasing political apathy at some statistically significant level.6 Although in any compulsory voting system there will still be individuals who wish to abstain, a larger percentage of the population would become politically aware and empowered, ultimately reinforcing the societal and political benefits mentioned above. Each of these arguments for compulsory voting are not without tradeoffs. The arguments against compulsory voting can be grouped into the following categories: (1) the philosophical; (2) the constitutional; and (3) the practical. From the philosophical perspective, there is something deeply unsettling about a “free” society founded on principles of individual liberty that forces its citizenry to take a particular action.7 The foundational premise of America is a Lockean theory of natural rights that absent the state, all men and women are created equal and endowed with certain unalienable rights. Any infringement of individual freedom is therefore suspect. Opponents of compulsory voting have argued that other compelled civic obligations like military service, jury duty, or paying taxes, are distinguishable because voting is the most primary and foundational function of a free society from which these other obligations arise.8 But this primacy argument is not conclusive. Citing the papers of John Adams, Justice Gorsuch recently noted

that “[j]ust as the right to vote sought to preserve the people’s authority over their government’s executive and legislative functions, the right to a jury trial sought to preserve the people’s authority over its judicial functions.”9 Thus, just as the right to a jury trial is so important that the government can compel others to serve on juries, perhaps the right to vote is so fundamental the government can compel it as well. The primary constitutional argument against compulsory voting is that it forces speech in violation of the First Amendment.10 Opponents argue that it removes the valid form of political expression made by refusing to vote and rejecting the candidates, the parties, or the system at large.11 A compulsory voting system that required voting for only Candidate A or Candidate B would face serious First Amendment obstacles. A compulsory voting system that permits abstention or “blank” voting, however, would allow for nonvoting as a form of political dissent.12 Therefore, an abstention option that allows for one to essentially be counted as “present” would be no different than other minimal forms of constitutionally forced interaction between individuals and the state, like the U.S. Census.13 Several practical arguments have also been made against compulsory voting. Any compulsory system would require some form of enforcement mechanism. But the same disadvantaged nonvoting populations who are least likely to vote are the same populations

50 | Columbus Bar L aw yers Quarterly Summer 2020


who can least afford to pay fines for nonvoting. This risks perpetuating a system where the disadvantaged are kept at the margins of society. Non-monetary options for expunging fines would be necessary, such as participation in the next election or attendance at a civics course, similar to a remedial driving course. Although it would present additional challenges, options for rewarding voters rather than punishing nonvoters could also be explored.14 Opponents of compulsory voting also point to the higher administrative costs associated with both increasing the existing voting infrastructure and adding mechanisms to enforce and appeal sanctions.15 Proponents may argue that the increased administrative costs would be more than offset by the decrease in political spending on get-out-the-vote efforts, but there is no guarantee political campaigns will be less expensive or that such funds would be transmitted to administrative functions.

Opponents may wonder: If nonvoters are only replaced by “abstain” voters, are the increased costs worth the effort?16 Others may fear that compulsory voting will give rise to a populist ochlocracy where a majority establishes itself and subjects various minorities to its preferences. But the fear of tyranny of the majority is more a fear of universal suffrage in general and less a fear associated with compulsory voting. As evidenced by Madison’s Federalist No. 10, the founding fathers were aware of this concern and built safeguards into our system, including the basic principle of federalism, a bicameral legislature and three independent branches of the federal government. Moreover, Madison recognized that the larger the republic—and by extension the larger the electorate—the less likely these fears would be realized: “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a

51 | Columbus Bar L aw yers Quarterly Summer 2020


majority of the whole will have a common motive to invade the rights of other citizens...”17 Finally, if a sustained and partisan constitutional confrontation in the courts follows enactment of compulsory voting, that process risks damaging the legitimacy of the government before it even has a chance to be strengthened. In a hyper-politicized environment where compromise among politicians is nearly taboo and judges and justices are seen by some more as political actors rather than neutral arbiters, compulsory voting without bipartisan support and overwhelming approval from the U.S. Supreme Court risks serious public opposition, further division, and accusations of the system being illegitimate at the outset. But such concerns are overblown. Short of full societal collapse, any immediate uptick in instability would be ameliorated overtime by compulsory voting’s stabilizing effects. If reformers are interested in pursuing the benefits extolled by compulsory voting’s supporters, guidance can be gleaned from the valid concerns raised by opponents. First, any compulsory voting system will likely benefit from starting small; pursuing a grassroots approach in smaller jurisdictions rather than seeking an immediate mandate from the federal government. Second, there is a marketing challenge that needs to be resolved: “compulsory voting” or “mandatory voting” is a hard sell. Nothing is more anathema to Americans than being told what to do—even if resistance is against our own personal interests. Third, bipartisan approval will be essential. Any implementation by one party without bipartisan support will be seen as a power grab regardless of whether the party in power benefits.18

compulsory or otherwise—is likely to increase engaged voter turnout,19 and is less susceptible to the criticisms outlined above, more palatable to the American sense of individual liberty, and thus, may be more effective. Nevertheless, at a time when our country is desperately in need of new ideas and new solutions, all options should be on the table. 1

Compulsory Voting, International Institute for Democracy and Electoral Assistance, https://www.idea.int/data-tools/data/voter-turnout/compulsoryvoting (last visited June 3, 2020). 2

See The Case for Compulsory Voting in the United States, 121 Harv. L. Rev. 591, 596 (Dec. 1, 2007). 3

See generally Eric Lund, Compulsory Voting: A Possible Cure for Partisanship and Apathy in U.S. Politics, 31 Wis. Int’l L.J. 90 (2013). 4

Harv. L. Rev., supra note 2, at 597.

5

Id., at 597 & n.43.

6

Melissa de Witte, Stanford Political Scientist Makes the Case for Mandatory Voting, Stanford News, Nov. 30, 2008, https://news.stanford.edu/2018/11/30/ case-mandatory-voting/ (last visited June 3, 2020) (interviewing Emilee Chapman and discussing her article The Distinctive Value of Elections and the Case for Compulsory Voting published in the November 2018 issue of the American Journal of Political Science); Harv. L. Rev., supra note 2, at 597 . 7

See Katherine M. Swenson, 16 Minn. J. Int’l L. 525, 536-37 (Summer 2007).

8

Id., at 537-38.

9

United States v. Haymond, 139 S.Ct. 2369, 2375 (2019).

10

See Lund, supra note 3, at 114.

11

See Swenson, supra note 8 at 539-541.

12

Lund, supra note 3, at 100.

13

U.S. Const. art. I, § 2, cl. 3

14

See Swenson, supra note 8, at 549.

15

Harv. L. Rev., supra note 2, at 609-12.

16

See Swenson, supra note 8, at 550.

17

The Federalist No. 10 (James Madison).

18

Indeed, some commentators suggest that both liberal and conservative parties may be helped in particular situations. See Dambiso Moyo, Make Voting Mandatory in the U.S., N.Y. Times (Oct. 15, 2019), https://www.nytimes.com/2019/10/15/ opinion/united-states-voting-mandatory.html. 19

See Swenson, supra note 8, at 548 & n.156.

Regardless of the mechanism, increased voter turnout is a goal worth pursuing. Every eligible voter who wants to vote should be able to vote. If the primary goal of compulsory voting is increased voter turnout and the resulting benefits, other ways of reaching that goal may be more successful and should also be considered. The most notable example is increasing voter registration. Increased voter registration— 52 | Columbus Bar L aw yers Quarterly Summer 2020

Michael Robertson, Esq.

Taft Stettinius and Hollister LLP mrobertson@taftlaw.com


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53 | Columbus Bar L aw yers Quarterly Summer 2020


Summer ‘20: Election Law

Election Contingencies and

COVID-19: Lessons Learned BY Patrick T. Lewis, Robert J. Tucker, Douglas A. Vonderhaar

The COVID-19 pandemic has upended all

History

parts of American society. Elections are no

While the COVID-19 pandemic is unprecedented in modern times, it is not the first public emergency that has disrupted an election. For example, the Sept. 11 terrorist attacks occurred on the day of New York’s mayoral and city council elections. The polls opened hours before the attacks, with the city’s mayor and city council offices among those at stake. Two days later, the state legislature enacted emergency legislation to move the primary to Sept. 25, 2001.i

exception. This year, we saw the first wave of COVID-19 hit the U.S during the heart of primary season. Several states canceled primaries,

others

adapted

election

procedures and some did nothing. This article looks at the different responses to the COVID-19 election contingency during the primaries and examines how election contingencies might impact planning for the 2020 General Election and beyond.

Hurricane Katrina devastated New Orleans in August 2005. After a series of executive orders, lawsuits and legislative action, the Parish of Orleans held its mayoral primary in Spring 2006.ii Over the last decade, other hurricanes have disrupted election processes in Florida, Georgia, New Jersey and New York – often resulting in litigation seeking to extend absentee voting or voterregistration deadlines, with mixed results.

Unsurprisingly, election contingencies often trigger litigation. Civil rights groups, political parties or advocacy groups, or candidates routinely ask courts to modify election procedures through constitutional challenges and requests for emergency injunctive relief. 54 | Columbus Bar L aw yers Quarterly Summer 2020


Statutory “Emergency” Election Powers Many states (but not Ohio) give their governors emergency powers to respond to election contingencies by delaying an election, relocating polling places or both.iii Although Ohio law does not allow the executive branch to take those steps directly, the state health director exercised her authority to close the polling places citing the public health threat posed by COVID-19. The lack of broad “emergency powers” over Ohio’s elections processes contributed to a chaotic postponement of Ohio’s March 17 primary following Governor DeWine’s March 9 executive order declaring a state of emergency. At about 5:00 p.m. on the night before the election, two Ohioans filed a lawsuit against the Ohio Secretary of State in Franklin County requesting a temporary restraining order enjoining the election from proceeding on March 17 due to risks posed by COVID-19. Approximately 40 minutes later, a hearing proceeded in the Franklin County Court of Common Pleas on the issue. Judge Richard A. Frye denied plaintiffs’ request for injunctive relief, refusing

to “take [the election] away from the legislature and elected statewide officials.”iv But in the time of a pandemic, the power to protect public safety will often be asserted and disputed at the same time. Within hours of Judge Frye’s order, Dr. Amy Acton – Director of the Ohio Department of Health – issued an executive order postponing the primary. Dr. Acton’s order closed the polls due to the “imminent threat” of COVID-19.v Shortly before 4 a.m. the next day, the Ohio Supreme Court denied a legal challenge from a candidate in Wood County that would have allowed the primary to proceed.vi In most states, the state legislature sets the dates of elections—although Ohio’s general election date is set in the state constitution.vii Legislatures often have the power to modify election rules, even on short notice. In Ohio, for example, once Dr. Acton issued her order closing polling places on March 17, the General Assembly reconvened and enacted emergency legislation – H.B. 197 – extending the absentee voting period for the March primary until April 28. Modifications to election dates, absentee voting and related election administration changes can be changed by the General Assembly as they

55 | Columbus Bar L aw yers Quarterly Summer 2020


are statutory in nature, subject to constitutional challenges as set forth below.

COVID-19 Election Litigation Unsurprisingly, election contingencies often trigger litigation. Civil rights groups, political parties or advocacy groups, or candidates routinely ask courts to modify election procedures through constitutional challenges and requests for emergency injunctive relief. This type of litigation presents a double-edged sword for reviewing courts: on one hand, under Purcell v. Gonzalez, 549 U.S. 1 (2006), federal courts are loath to modify election laws in the eleventh hour. But on the other hand, if the election contingency (whether COVID-19 or a hurricane) results in a severe burden on the right to vote, courts applying the Anderson-Burdick burden-shifting framework have enjoined deadlines or election regulations even on short notice (under Anderson-Burdick, a court weighs the burden a law imposes on a constitutional right against the interests put forward by the state to justify the law).

leading to decisions all over the map. For example, the Seventh Circuit stayed a lower-court order that, based on COVID-19 concerns, enjoined Wisconsin’s absentee signature requirement.viii But in Virginia, a federal judge adopted a consent decree that enjoined a Virginia law requiring absentee ballots to be witnessed for that state’s June primary.ix

Looking Ahead With many experts predicting periodic resurgences in COVID-19 cases in the fall and into next year, it is possible some of these same concerns could arise in the General Election or in elections next year. Given the rapid pace of research into ways to combat COVID-19, in just a few months there should be greater information

In a series of recent cases, courts around the country have struggled to balance these competing interests—

6ft

56 | Columbus Bar L aw yers Quarterly Summer 2020


available to states, election administrators and courts about the health risks posed by voting during the COVID-19 pandemic and the best ways to mitigate those risks. And hopefully states have more time to plan for such contingencies in the Fall. Some states may decide to modify the “emergency powers” their executive branches have over elections to address perceived gaps they identified from their experience with the 2020 primaries. Others may begin working on backup plans to alter absentee voting protocols or restructure in-person polling locations to better comply with social distancing requirements. Measures taken by states now may alleviate the burden on state and federal courts to resolve 11th hour disputes over the election process in the fall. But one thing is certain: like so many other aspects of Americans’ everyday lives, elections are not immune from the impact of COVID-19.

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i

Emergency Primary Election Rescheduling Act of 2001, S.B. 05791 (Sept. 13, 2001). ii

Executive Order KBB 05-36, https://www.doa.la.gov/osr/other/ kbb05-36.htm; Executive Order KBB 05-96, https://www.doa.la.gov/ osr/other/kbb05-96.htm; Wallace v. Chertoff, Case No. No. 05-5519, 2005 WL 3609839 (E.D. La. Nov. 10, 2005); La. R.S. 18:401.3 (enacted Dec. 6, 2005). iii

NCSL, Election Emergencies, https://www.ncsl.org/research/ elections-and-campaigns/election-emergencies.aspx. iv

Journal Entry, Reardon v. LaRose, Case No. 20CV-2105 (Mar. 17, 2020); Columbus Dispatch, Coronavirus: Ohio Supreme Court allows delay to primary election (Mar. 16, 2020), https://www.dispatch.com/ news/20200316/coronavirus-ohio-supreme-court-allows-delay-toprimary-election.

Patrick T. Lewis, Esq.

BakerHostetler plewis@bakerlaw.com

v

Director’s Order, In re: Closuring of the Polling Locations in the State of Ohio on Tuesday March 17, 2020 (Mar. 16, 2020), available at https://content.govdelivery.com/attachments/OHOOD/2020/03/17/ file_attachments/1402754/Director%27s%20Order%20Closure%20 of%20the%20Polling%20Locations.pdf. vi

State ex rel. Speweik v. Wood Cty. Bd. of Elections, Case No. 20200382 (Ohio Mar. 17, 2020). vii

Ohio Const. Art. XVII, § 1.s

viii

Democratic National Committee v. Bostelmann, Nos. 20-1538, 201539, 20-1545, 20-1546 (7th Cir. Apr. 3, 2020). See also Arizonans for Fair Elections v. Hobbs, No. CV-20-00658, -- F. Supp. 3d --, 2020 WL 1905747 (D. Ariz. Apr. 17, 2020) (declining to enjoin petition signature requirement); Mays v. Thurston, No. 4:20-cv-341, 2020 WL 1531359, *2 (E.D. Ark. Mar. 30, 2020) (denying request for injunction expanding the time period for state election officials to receive absentee ballots due to COVID-19).

Robert J. Tucker, Esq.

BakerHostetler rtucker@bakerlaw.com

ix

League of Women Voters of Virginia v. Virginia State Board of Elections, No. 20CV00024, 2020 WL 2190793 (W.D. Va. May 5, 2020). See also Esshaki v. Whitmer, No. 2:20-cv-10831, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020) (reducing required number of candidate petition signatures due to COVID-19 concerns).

Douglas A. Vonderhaar, Esq.

BakerHostetler dvonderhaar@bakerlaw.com

57 | Columbus Bar L aw yers Quarterly Summer 2020


Student Section: Observations from Law Students

The Value of

WORKING

During Law School by BEN HACHTEN

STUDENT SECTION

Law schools are increasingly offering a variety of experiential learning opportunities, from student legal clinics to externships to mock trial and moot court. Although law students should take advantage of these in-house opportunities, particularly in areas of interest to them, they should also look outside the law school—in both the public and private sectors—for ways to gain practical experience.

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Maybe the most beneficial aspect of working throughout law school for me has been the constant reaffirmation of why I went to law school in the first place: the law is dynamic and exciting, and lawyers play a major part in shaping societal norms and values. Since the summer following my first year of law school, I have worked for a small plaintiffs’ civil litigation firm during the school year. As a recent graduate and someone who admittedly enjoyed my time in law school classrooms, the experience of working throughout law school has—more than anything else I’ve done in the last three years—prepared me to confidently enter the legal profession. Below are a few of the many benefits of working during law school.

Continually Hone Legal Research and Writing Skills

those working in the trenches, such as whether a certain argument will persuade a specific judge. Above all, it is difficult to receive this type of feedback outside of a professional setting.

Explore Different Areas of the Law Learning about a subject and working on a real-world case are starkly different concepts. You may find that you dislike law school but love practicing in a specific area and helping real people solve real problems. Working during law school gives you the opportunity

During the first year of law school, learning to write like a lawyer is an all-consuming endeavor. I still remember struggling to grasp IRAC and CRExAC and how to cite cases according to the Bluebook (Do I italicize the comma or not?). But after the intense first year, it can be easy to let your legal writing skills stagnate as you pursue other topics of interest. After the first year at many schools, you can almost entirely avoid legal writing until you graduate. As a student law clerk, however, you will continue to hone your legal research and writing skills in a professional setting. Over the last two years, I have written dozens of internal research memoranda and even a few briefs. Not only has the mere repetition of researching and writing helped me improve these skills, but the feedback from my supervising attorney—someone with decades of experience—has been invaluable to my progression. There is little substitute for the insight gained from 59 | Columbus Bar L aw yers Quarterly Summer 2020


to explore different areas of the law that you might not have exposure to within the confines of your law school’s curriculum; this is particularly important if you think you might want to be a “transactional” lawyer, given most schools’ litigation-heavy course offerings. For me, the discovery that I really enjoy employmentrelated litigation came not through taking a class on the subject but through working on interesting cases. You may also find that there are certain areas of the law you strongly dislike; that’s okay, too. But you won’t know what you like or dislike until you gather enough practical experience to make an informed decision. That is why I encourage you to try as many areas as possible and to seek out novel challenges at every turn.

Develop Relationships with Practicing Attorneys This one almost goes without saying: as a law student, it is critical to develop your network with practicing lawyers who can help you find a permanent job. Even if you decide to work for a firm or an agency in an area that is uninteresting to you, the lawyers you work for will undoubtedly know other lawyers that practice in the area that you actually find interesting. Never underestimate the power of a strong referral.

Learn Professionalism Beyond building a network, you have the opportunity to receive mentorship from attorneys with years of real-world experience under their belts. Not only does having a mentor help with learning the intricacies of the law, but it also provides you with a model for how to behave as a professional. From dealing with opposing counsel to responding to client concerns, these are experiences you simply can’t find inside the law school.

Build Confidence in Your Abilities It is easy to doubt yourself after a semester or two of law school. Law school, particularly the first year, is a challenge unlike any other. I have learned that one of the best antidotes for this doubt is to gain practical experience outside of the law school. When I began working my first-year summer, I had little substantive knowledge and even fewer practical skills. Yet it is amazing how quickly you can improve in both of these areas. After just one summer, I began to feel more confident in my work product and my legal analysis. Continuing to work throughout the school years has provided continued opportunities to build more confidence.

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Learn Crucial Time Management Skills Lawyers are busy people. They juggle dozens of cases at once, quickly navigating from one pressing deadline to the next. Time management is a learned skill for most people, and the best teacher is practice. By choosing to work during the school year, you will inevitably force yourself to make the most of your time. Although this can be daunting at first, it is great preparation for the realities of the practice of law.

Remember Why You Went to Law School

lawyers are in a unique position to help individuals and businesses solve their most pressing problems; this is truly a remarkable responsibility and serves as excellent motivation to press on with your classwork and to study for your final exams! In sum, working during law school can provide opportunities that are simply unavailable in the law school setting. I encourage all law students to seek out challenging and exciting opportunities in a professional setting during their time in school; you never know what you’ll discover.

Maybe the most beneficial aspect of working throughout law school for me has been the constant reaffirmation of why I went to law school in the first place: the law is dynamic and exciting, and lawyers play a major part in shaping societal norms and values. Further, practical experience has taught me that

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The Ohio State University Moritz College of Law

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61 | Columbus Bar L aw yers Quarterly Summer 2020


Student Section: Observations from Law Students

“Getting Involved”:

Benefits & Best Practices by MEGAN NELSON

STUDENT SECTION

Most law students receive this familiar advice: “It’s not enough to have good grades. You need work experience and to be involved in extracurricular activities.” Early in law school, that idea intimidated me.

62 | Columbus Bar L aw yers Quarterly Summer 2020


Always have an idea in your mind of what is most important. Keeping a mental hierarchy of your priorities will help you balance your commitments, as well as help you realize when you need help. When my 1L year started, it was all I could do to keep up with the reading, briefing and outlining. I had attended a few student organization meetings, but was hesitant to take a more active role, fearing that I might stretch myself too thin and see my grades suffer. I also lacked confidence. Yet, I was inspired by my classmates’ accomplishments and wanted to feel more connected to my law school community. So, with encouragement from family, friends and upper-class students, I decided to become more involved in student organizations, starting at the end of my 1L year. I ultimately became a staff member on the Capital University Law Review, vice president of the Women’s Law Association (WLA) and a peer advisor to incoming students. In the following spring, I was elected editor-in-chief of the Law Review and President of the WLA while continuing to serve as a peer advisor. Through my involvement with the WLA, I also served as a law school representative on the Women Lawyers of Franklin County Board of Trustees. Consequently, extracurricular involvement became

an important part of my time at Capital and my growth as a law student. Admittedly, these extracurricular commitments made my law school experience more challenging. Balancing my student involvement with schoolwork, jobs and family commitments was no easy feat. Despite those challenges, being an involved student substantially enriched my law school experience. It made me a more capable and confident person, law student and

(hopefully) soon-to-be attorney. I also gained many friends and mentors along the way. With this article, I want to encourage other law students to get involved, even if the idea seems intimidating, and give some advice for getting the most from that involvement.

1. Ask for help from your support network. Getting involved can sometimes be difficult, and even overwhelming. As a result, students involved in

63 | Columbus Bar L aw yers Quarterly Summer 2020


extracurricular activities learn a great deal about time and stress management, especially if their first leadership roles are in law school organizations. When faced with challenges I was struggling to overcome, I asked for help. Classmates brainstormed with me and assisted me where they could. Upper-level students and recent graduates shared their wisdom and experiences. Professors and administrators gave me advice when a sticky situation arose or when I was looking for a more efficient way to accomplish a goal. They also provided encouragement. My family and friends provided a listening ear. I could not have achieved nearly as much without the support of this incredible network.

2. Extracurricular activities are not just bullet points on a resume. Choose them strategically and take an active role to get the most from them. As a 1L, your primary job is to learn how to be a law student. The extent of your extracurricular involvement, especially in your first semester, should be attending a few meetings, getting to know your classmates and eating the free pizza. When you become a 2L, however, it is time to take a more active role. Each of the organizations I joined was valuable because I committed to getting as much from it as possible. Taking on more active roles helped develop my

organization and communication skills, taught me how to lead without micromanaging and improved my self-confidence. It also gave me a greater sense of accomplishment and belonging because I had played an important part in the organization. If you join a student organization but view it merely as a bullet point on your resume, your involvement loses some of its value. For that reason, committing to only a few student organizations, and then taking an active role in them, is ideal. When choosing those organizations, make sure that their work will inspire and motivate you, as well as further any goals you have. I joined the Law Review in part to develop my attention to detail and legal writing skills. I joined the WLA and became a peer advisor because helping others fulfills me; a desire to help others is, after all, what inspires most of us to go to law school. Become involved

64 | Columbus Bar L aw yers Quarterly Summer 2020

in things that matter to you to maximize the value you add and the value you earn.

3. Remember that extracurricular involvement is an opportunity for networking and take advantage of that opportunity. In part, this refers to obvious networking opportunities, like mentoring programs and alumni events. It also, however, refers to forming connections with people over shared experiences. When I first accepted the editor-in-chief position, I met a former editor-inchief for advice, and she introduced me to a former managing editor. As a student representative for the Women Lawyers of Franklin County, I met numerous female attorneys


who are leaders in our community. Today, I count these women as friends and mentors. They have all enriched my law school experience, and as I prepare to enter the legal profession, I am comforted in the knowledge that I have friends and allies waiting to greet and guide me. You can network with your peers, as well. This is an under-recognized benefit of student involvement. In only a few short years, many of your classmates will become your colleagues, particularly if you remain in Central Ohio after graduation. Getting to know your classmates through student involvement sets you up to have a larger and more developed personal and professional network once you leave school.

4. Say “no” when you need to and prioritize to avoid neglecting your responsibilities.

5. Enjoy yourself and take pride in your accomplishments. Extracurricular involvement can create lasting connections with others and working with your friends on something other than homework can be a welcome reprieve from normal law school stress. It also enables you to present to your classmates, and even the legal community, the fruits of your labor, giving you a sense of accomplishment. That pride is often fulfilling and motivating, which can pay off in the classroom as well as in other areas of your life. Though preparing for your organization’s event or completing law review assignments may be stressful, seeing the finished product is immensely rewarding. Take time to enjoy that feeling.

Megan Nelson

Capital University Law School

Always have an idea in your mind of what is most important. Your priorities might change over time; for example, family circumstances may demand more attention for a few weeks, but during finals, few other things matter. Keeping a mental hierarchy of your priorities will help you balance your commitments, as well as help you realize when you need help. It will also help you learn when to say “no.” For many law students, this is incredibly difficult; whether you are looking for the next resume-boosting activity or just enjoy being involved in something outside the classroom, students may be tempted to say “yes” to every opportunity. Unfortunately, this can lead to poor performance in some or all areas of work, and can cause unnecessary stress.

65 | Columbus Bar L aw yers Quarterly Summer 2020


Life Outside the Law

Alexander H. Hastie BY HEATHER G. SOWALD

Alex Hastie’s lifetime of entertaining audiences through his musicianship began inauspiciously in elementary school in Grandview Heights, playing the saxophone for the school band. A few years later, Alex taught himself to play the guitar and bass, becoming one of the rockers with the teen band, Cobalt. The band members wrote their own songs in the alternative rock genre, performing at local festivals and on the radio. Alex continued his musical journey during college at the College of Wooster, writing folk songs and playing in coffee shops, while also swimming competitively and majoring in history. His attendance at the Cleveland Marshall College of Law (J.D. 2006), was followed by employment at a Cleveland lobbying firm.

During the recession, he returned to Columbus and his family. Alex’s late father, Ed Hastie, his mother, Mary Theresa Finneran, and his lawyer brother, Edward, were all local attorneys. In fact, Alex and his wife, Sarah, a neonatal nurse at Nationwide Children’s Hospital, now live on the same block where Alex grew up in Grandview, along with their infant son, William. When Alex returned to central Ohio, Edward and he opened their own law firm, concentrating on handling liquor law matters for bars and liquor distributors, along with DUI cases. They still work in Grandview in the same building, but as solo practitioners. Alex’s practice focuses on drunk driving defense and representing bars and restaurants across the State of Ohio. In 2010, Alex and three friends started the band “The Winnie Cooper Project.” (www.winniecooperproject.com) The band’s name refers to a 1990’s television show’s love interest in “The Wonder Years.” Alex plays rhythm guitar and bass and is often the band’s lead singer.

Alex says that he creates the podcasts to make history fun and relevant, allowing him to share his love of the subject with his thousands of listeners, and sees his band-playing as a fun hobby bringing enjoyment to somewhat smaller audiences. 66 | Columbus Bar L aw yers Quarterly Summer 2020


Their band has expanded with additional musicians, and they have already booked their 10-year anniversary concert. They have been consistently voted as one of the top three cover bands in Columbus by 614 Magazine readers. They rewrite and play 90’s hip hop music by using the same words, but with added musicality. They are a busy band, playing often at local festivals and neighborhood bars.

(www.ohiovtheworldpodcast.com). His subjects range from bootlegging to discrimination to Watergate. His upcoming podcasts, he says, will each highlight presidential history discussing Ohio and the presidency. Alex spends many hours researching the subjects and finding people to interview for each episode; plus, he writes and performs much of the “bump” transition music for the podcasts.

Alex, an Ohio history buff, became interested in how events from the past still have significance today. A result of his reading and exploring led him to create his popular podcast, “Ohio v. the World”

As a result of his podcasts, Alex was appointed to serve on the board of the Ohio History Connection, resulting in frequent travels for him around the state to historic sites and for landmark dedication events. In his “spare” time, Alex is also a 10-year Pelotonia participant, riding 100 miles on his bicycle to raise money for cancer

research. He is a Blue Jackets and Cleveland Browns season ticket holder, board member for We Amplify Voices and a volunteer for the Columbus Diaper Coalition. Alex says that he creates the podcasts to make history fun and relevant, allowing him to share his love of the subject with his thousands of listeners, and sees his band-playing as a fun hobby bringing enjoyment to somewhat smaller audiences. Alex also brings musical enjoyment to an audience of one: his son, who, Alex jokingly says, accompanies him very proficiently on his own “air guitar”.

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com


Life Outside the Law

5 Things Lawyers Need to Know About

REACTING BY SCOTT R. MOTE, ESQ.

The way we react to life events shapes others’ perceptions of us. Most of us lawyers want our colleagues, friends and acquaintances to think of us as friendly, well-mannered, and balanced professionals. How do we accomplish this?

Be aware. Reactions occur constantly in our lives, even when we are not aware of it: in meetings, in conversations, while we drive or someone else drives, in relationships, in how we treat the barista at the coffee shop. As you react to the events that happen in your life, think about the following five tips, and there’s a good chance that others will perceive you in a positive manner.

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Be aware. Reactions occur constantly in our lives, even when we are not aware of it: in meetings, in conversations, while we drive or someone else drives, in relationships, in how we treat the barista at the coffee shop. Be aware of your body language and actions You know the old saying ‘actions speak louder than words’? Most of our communication in life is non-verbal. Dr. Albert Mehrabian determined that human communication consists of seven percent spoken words, 38 percent tone of voice and 55 percent body language. This means that 93 percent of communication is nonverbal. Think about that as you go about your day. Did you slam the door when you went back to your office? Do you cross your arms during meetings and slump in your seat? These actions can make others perceive you as angry and bored, but you probably want to be perceived as trustworthy and approachable, right? Use positive body language. Use consistent eye contact, sit up straight, rest your arms at your waist. Don’t frown, smirk or slump. Successful and positive communication is crucial for a lawyer’s success.

Watch your tone The tone of your voice is so important when you are having a conversation with someone. Whether you are speaking with your client, child, friend, mother, etc., it’s important to be cognizant of the tone of your voice. Different tones of voice convey different information. For example, when you raise your voice or yell, the person will probably think you are angry. Speaking in a quiet tone of voice projects a sense of weakness or awkwardness. Speak

with a confident and firm voice, and you will most likely be thought of as influential and distinguished.

Be compassionate In the book “To Kill a Mockingbird,” lawyer Atticus Finch says, “You never really understand a person until you consider things from his point of view…until you climb in his skin and walk around in it.” You are compassionate if you are able to empathize with others as they go through the ups and downs

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of life. How do you react when your associate calls in sick because all three of their children have the flu? If this invokes feelings of anger and disappointment, you need to work on being more compassionate. A compassionate person would show kindness and empathy to the associate by letting them know that they should take the time they need to care for their sick children.

Understand social cues Social cues are another type of body language, but they focus on how others react to you. For example, you might notice that people tend to inch away from you during a conversation. This is a social cue that you are stepping into their personal space. Try to maintain a good distance, usually around three feet. If people fidget when you are speaking, they might be uncomfortable, either talking to you or about the topic of the conversation. If you notice this, change the topic or end the conversation. If people furrow their brows, they might be confused or annoyed with you. Help them better understand what you are saying, or end the conversation.

Know when to speak up, but not in an aggressive way Think of a time you became angry, frustrated or disappointed. How did you react? If the first thing you did was gain your composure and assess the situation in a rational way, you are on the right track. If the first thing you did was start yelling, slamming doors or punching walls, you need to work on how you react to situations. It is important to react in an assertive way, not an aggressive one. Assertive people speak openly and to the point with a conversational tone, showing

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respect to others. Aggressive people tend to speak loudly, interrupt, glare and intimidate. Another thing to contemplate is if it is even necessary to speak up. If you are driving to work and a car cuts you off, is it really necessary to start swearing, following the other car and yelling at the driver? The best thing to do is move on. The other driver probably did not intentionally do this. It was probably an accident. You really don’t need to speak up in this situation. On the other hand, if a person in your staff meeting blames you for a mistake and it is not true, this is a good time to speak up, but not in an aggressive way.

Treat others the way you want to be treated Remember that barista? The one who gave you the wrong change, and you reacted incredibly rude to her? She might know a current client, a judge, someone at your law office or in your family. You wouldn’t want these people to think of you as rude and impatient, would you? Be aware of your reactions.

If you are unhappy, depressed, suffering from substance use disorder, burnout, or stress, and you believe it is affecting your life, the Ohio Lawyers Assistance Program can provide CONFIDENTIAL help. For more information, go to ohiolap.org or call (800) 348-4343 or

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Executive Director Ohio Lawyers Assistance Program smote@ohiolap.org

(614) 586-0621.

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Life Outside the Law

Clinical Trials 101: A Basic Discussion of an Important Process BY JANYCE C. KATZ

As this is written, COVID-19 is rapidly spreading, vaccines are being developed and the use of hydroxychloroquine with or without the antibiotic azithromycin for COVID-19 did not do well in its clinical study’s first test.i The important web site about clinical trials, clinicaltrials.gov, had 131 different hydroxychloroquine studies with different protocols, some not yet recruiting and others actively looking for patients.ii

After thorough studies of hydroxychloroquine alone or in combination with other medicines, scientists may find that the effectiveness of the medicine(s) use against COVID-19 outweighs the damaging side effects or they may still find it more harmful. It seems a perfect time to discuss clinical studies, stressed as necessary for new medicines and devices by Dr. Fauci, who since 1984 has headed the National Institution of Allergy and Infectious Diseases. NIAID is one of the institutes that is part of the National Institutes for Health. Point of information, General Innovations and Goods, Inc. has been operating a study of a device invented by company president and my husband, Mark Glazman, to see if the device when installed in an HVAC duct reduces asthma and allergy symptoms.

As an aside, a study can have many aspects that an attorney would find very interesting and, possibly, lucrative. An attorney should have an understanding of the regulatory laws and rules covering product development, but should be especially knowledgeable about those under which a particular study should be operating, especially the safety rules. 72 | Columbus Bar L aw yers Quarterly Summer 2020


This article serves as a general explanation as to how a study operates and why certain aspects of every study should be closely monitored. To study a medicine or drug or a health issue is to research it. And, research is a systematic investigation… designed to develop or contribute to generalized knowledge. The topic of study can include such things as a theory, ideology, or principle, medication, tool, device, process or health intervention. The COVID-19 study mentioned above was funded by NIAID and the University of Virginia. Not all studies are funded by governmental or not-for-profit entities. Many very large pharmaceutical companies can selffinance or can obtain outside financing from investors. And, even smaller startups can get investor money. But, the rigorous oversight provided by the NIH’s team assigned to a small business grant like ours or to other academic grants not only provides assurance that the study results are accurate, but also that the entire study will be operated at the highest possible safety level for those participating in it.

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73 | Columbus Bar L aw yers Quarterly Summer 2020


There are several general types of studies, the use of which depends upon the questions that the study sponsor is trying to answer.iii A cohort study follows a group of people who are observed frequently over a period of many years–for instance, to determine how often a certain disease occurs. To obtain information about a specific medical condition, someone may do a casecontrol study to compare people who have a certain medical condition with people who do not have the medical condition, but who are otherwise as similar. A qualitative study follows individuals with a specific disease to

help scientists better understand the disease. The goal of a randomized clinical study is usually to find out if a medicine or a device actually accomplishes what its creator or manufacturer says it can do.iv It is also to find out what the side effects are and if those side effects on balance are less harmful to the individual taking the medicine or using the device than whatever disease the product is supposed to control or cure. For example, while the use of a low risk device like a bandage might be very helpful for

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most people with a wound or cut, someone with an allergy to the material in the bandage might have a reaction when the bandage touches their skin. A pacemaker, involving the need to open up the patient and insert the device, would need a more stringent testing and oversight procedure, because the device as well as the procedure could be far more dangerous than a bandage. Another proposed medicine might slow the progress of a disease in 80 percent of those who have it, but might cause deadly heart attacks in the other 20 percent. Or, a research study could be an attempt to better


A clinical study has multiple parts, all of which need careful monitoring if the study is going to actually provide useful proof as to whether a device or medicine does what its creator has designed it to do. understand a disease or the impact of something like radiation on the human body. The goal is usually to take the research and use it in order to better understand how to start looking for a way to treat or contain a disease or the harm from radiation. A clinical study has multiple parts, all of which need careful monitoring if the study is going to actually provide useful proof as to whether a device or medicine does what its creator has designed it to do. A study requires contracts between the sponsor and the various sites that will be testing the experimental medicine or medical device, and confidential agreements for anyone involved in the study from sites to contractors. Each site should have a qualified Principal Investigator (PI) and, working with the PI, properly trained

research personnel knowledgeable about the general area of the study. There are forms to be signed by the investigator, one of which, form 1572 and an equivalent for devices, indicates the PI’s financial interest, if any, in the experimental medicine or device or in its sponsor or manufacturer. Each study needs a written protocol setting forth the study process, study goals and how they are to be measured. A key part in the protocol are the safety concerns including the manner in which subjects are to be protected as well as how any adverse effects that might have been triggered by the medicine or the device should be recorded and reported to the U.S. Food and Drug Administration (FDA) or Institutional Review Board (IRB), again, depending upon the nature of the study. The FDA or IRB also must

monitor the study itself, watching for serious adverse events that might have been or were caused by the experimental device or medicine, with the possibility of closing a truly dangerous study. The National Institutes of Health require a data safety monitoring board to review the adverse effects of any multi-site clinical trials involving interventions that entail potential risk to the participants. It’s extremely important to have a good informed consent form that clearly states the goals of the study as well as the possible benefits and possible harms of the use of the experimental medicine or device. The goal – to make certain a person participating in a clinical research

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study knows both the know potential harm as well as the hopedfor positive result of an experimental medicine or device. The reason – so the person can make an informed decision as to whether to participate in the study.

participate in preliminary testing about the cause of a disease or the impact of radiation, helping to gather information that might result in the development of a medicine or a device, also should have stringent protections.

There is always a balance between the need for the investigation to be conducted with scientific diligence to develop a medicine or device being able to end, prevent or control a disease and the side effects from the medicine or device that could harm the user. But, the scale in any study should tip toward the protection of the subjects in the study and eventually the patients who will use the medicine or device.

The U.S. did first attempt to protect people from unknown and potentially harmful drugs when it passed The Pure Food and Drug Act of 1906.v Congress strengthened the laws in 1938 with The United States Federal Food, Drug, and Cosmetic Act which gave authority to the FDA to oversee the safety of food, drugs, medical devices, and cosmetics.vi However, the proof required from anyone selling a medicine or a device was that it was safe, but there was no requirement to make certain the product did what its manufacturer said it would.

Over the years that we have had tests of devices and medicines, many have recognized the importance to have certain regulations to protect not only the intended user of a device or medicine but also the subject/person who participates in the testing of the medicine or the device. Of course, those who

The first international research guidelines, the Nuremberg Code,vii were created after the Nuremberg Doctor’s Trial of 1946. The Nazi experimentation on helpless victims

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in concentration camps during WWII as well as the lack of controls as to the results of the studies created an awareness of the importance of regulations.viii Unfortunately, even after the horrors of the concentration camp studies had become public, research abuses continued. Individuals were either forced to participate or were tricked into participating with false information and they endured extreme suffering or died because they were in the studies.ix One notorious US study, the Tuskegee syphilis experiments (1932 to 1972), tracked African-American men with untreated syphilis to understand the progression of the disease. The study continued after a cure for syphilis had been discovered in 1947, allowing the participants to become blind, lose their minds or needlessly have other problems and also to pass the disease onto their spouses and children.x


Because of the continuing abuses, the ethical advances in human protection in studies have included several milestones that followed the Nuremberg Code: the Declaration of Helsinki;xi the Belmont Report;xii and in 1996, the International Conference on Harmonization Good Clinical Practice guidance.xiii The Good Clinical Practice ICH-6 was updated in 2018 to urge further protection of subjects and better protect the integrity of a study.xiv They are not binding law in the United States, but have formed the basis for regulations adopted by 16 federal agencies (the Common Rule). Following them is a requirement when accepting certain governmental grants to fund a study. It is highly recommended for any other study to follow the ethical guidelines set forth in these declarations and codes. Unfortunately, stricter rules and laws for studies of devices and medicines have come about only after people had been harmed by a medicine or a device. One major change in US laws and regulations occurred after the manufacturer of Thalidomide promised the drug would deliver wonderful results, but instead it produced deformed babies.xv Another important revision to device laws and regulations followed the revelation that the Dalkon Shield, an intrauterine device, harmed many women. Thalidomide became quite the rage in Europe, especially in Germany in the late 1950’s. Some doctors even recommended pregnant women use the drug to ease morning sickness. As a result, thousands of children were born with birth defects, most notably phocomelia (limb malformations). But, in the USA, the harm to children was minimized because Dr. Francis Oldham Kelsey, newly appointed to the FDA to review new drug applications, refused against strong pressure to allow the drug to be marketed. After the Thalidomide disaster, federal action to prevent that kind of devastation from happening in the United States came in the form of the 1962 Amendments to the Federal Food, Drug and Cosmetic Act. The KefauverHarris Drug Amendments Act tightened restrictions surrounding the surveillance and approval process for 77 | Columbus Bar L aw yers Quarterly Summer 2020


drugs to be sold in the U.S., requiring that manufacturers prove they are both safe and effective before they are marketed.xvi The Dalkon Shield’s marketing promised easy, safe protection against pregnancies. In reality, the IUD had a design with a flaw that seriously harmed the reproductive health and lives of women and the device went to market because no rules carefully vetted that study.xvii A.H. Robbins had acquired the Dalkon Shield from the Dalkon Corporation, founded by Hugh J. Davis, M.D., with strong Defiance, Ohio connections. Davis had covered up the fact that the pre market tests showed the wick of the device could cause serious complications. Robbins covered up the danger of the device and lied about its safety to doctors and to women. In 1975, an article in JAMA

Network raised serious questions about the link between 209 cases of septic spontaneous abortion and 11 maternal deaths in the United States in women using the Dalkon Shield.xviii Thalidomide, and the safely prevents pregnancy device, and the Dalkon Shield shared deceptive marketing, flawed testing and lies to cover up what their products actually did. As a result, both produced money for their manufacturers and great harm to many people. In good part, because of the Dalkon Shield fiasco, The Medical Device Regulation Act or Medical Device Amendments of 1976 was introduced by the 94th Congress of the United States as an amendment to the Food, Drug, and Cosmetic Act of 1938.xix Congressman Paul G. Rogers and Senator Edward M. Kennedy were the chair sponsors of the medical device amendments.

It’s extremely important to have a good informed consent form that clearly states the goals of the study as well as the possible benefits and possible harms of the use of the experimental medicine or device. 78 | Columbus Bar L aw yers Quarterly Summer 2020

The laws created a three tier classification based upon the amount of risk of the medical device. For example, a tongue depressor has far less risk than an artificial heart and the testing as well as the safety precautions were made more stringent for the riskier devices. Most recently, OxyContin’s dishonest marketing by Purdue Pharma harmed millions, families and communities as well as those who became addicted when using the alleged pain-relieving medicine. What, if any, new laws and/or regulations will emerge to prevent such dishonesty in the future remains to be seen. Certainly, some of the regulations for safety or for testing devices or medicines may contradict other regulations. Without a question, these rules or laws


should be rewritten to remove the contradictions. However, given the history of the lack of protection to not only subjects participating in studies but the end user of a device or medicine, the fix should not result in the weakening the protections the regulations are to provide. As an aside, a study can have many aspects that an attorney would find very interesting and, possibly, lucrative. An attorney interested in this area should have an understanding of the regulatory laws and rules covering product development, but should be especially knowledgeable about those under which a particular study should be operating, especially the safety rules. An attorney may also need to work with (or perhaps for) the FDA or an IRB. Both entities have been charged with to better protect subjects in a study. They do so by monitoring the safety of the manner in which a study sponsor sets up a study as reflected in the study protocol and compliance with the Health and Human Services (HHS) and FDA regulations in 45 CFR part 46 and 21 CFR parts 50 and 56. Attorneys also should know their limitations and be willing to reach out to other attorneys for help, say, someone specializing in bringing a product or medicine through the FDA process or getting a copyright or patent. And, the work you, as an attorney, do in a study may protect a study participant and may help bring the next wonder drug onto the market.

i

Marilynn Marchione, More deaths, no benefit from malaria drug in VA virus study, AP April 21, 2020 https:// apnews.com/a5077c7227b8eb8b0dc23423c0bbe2b2 ii

https://clinicaltrials.gov/ct2/results?term=COVID-19+hydroxychloroquine&Search=Search.

iii

More general details on the types of studies can be found at The National Center for Biotechnical Information’s (“NCBI”) InformedHealth.org [Internet]. https://www.ncbi.nlm.nih.gov/books/NBK390304/ iv

The Belmont Report offers a clear distinction between medical care for a patient and research: “For the most part, the term “practice” refers to interventions that are designed solely to enhance the wellbeing of an individual patient or client and that have a reasonable expectation of success. The purpose of medical or behavioral practice is to provide diagnosis, preventive treatment or therapy to particular individuals [2]. By contrast, the term “research’ designates an activity designed to test an hypothesis, permit conclusions to be drawn, and thereby to develop or contribute to generalizable knowledge (expressed, for example, in theories, principles, and statements of relationships). Research is usually described in a formal protocol that sets forth an objective and a set of procedures designed to reach that objective.” April 18, 1979, https://www.hhs.gov/ohrp/sites/default/ files/the-belmont-report-508c_FINAL.pdf v

Republican President Teddy Roosevelt signed into law this bill regulating interstate commerce items, 37 U.S. Stat. 416 (1912) (Sherley Amendment) now repealed, the same day he signed the Federal Meat Inspection Act. vi

21 USC Chapter 9, Section 301

vii

https://history.nih.gov/research/downloads/nuremberg.pdf

viii

Paul Weindling,1,⁎ Anna von Villiez,2,6 Aleksandra Loewenau,3,4 and Nichola Farron5. The victims of unethical human experiments and coerced research under National Socialism Endeavour. 2016 Mar; 40(1): 1–6.doi: 10.1016/j.endeavour.2015.10.005, PMCID: PMC4822534, PMID: 26749461 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4822534/ ix

Ryan Grim, American Mengele: Human Radiation Experiments Autumn 2002; Keith Schneider, Cold War Radiation Test on Humans To Undergo a Congressional Review, NY Times April 11, 1994, https://www.nytimes. com/1994/04/11/us/cold-war-radiation-test-on-humans-to-undergo-a-congressional-review.html https:// brooklynrail.org/2002/10/express/american-mengele-human-radiation-experim x

Elizabeth Nix, Tuskegee Experiment: The Infamous Syphilis Study, History updated July 29, 2019 from May 16, 2017 original https://www.history.com/news/the-infamous-40-year-tuskegee-study xi

https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-researchinvolving-human-subjects/ xii

https://www.hhs.gov/ohrp/sites/default/files/the-belmont-report-508c_FINAL.pdf

xiii

https://www.fda.gov/science-research/guidance-documents-including-information-sheets-and-notices/ ich-guidance-documents xiv

https://www.fda.gov/files/drugs/published/E6%28R2%29-Good-Clinical-Practice--Integrated-Addendumto-ICH-E6%28R1%29.pdf xv

Heinrich Mueckter, a known Nazi war criminal, was appointed to head the discovery program of the German company Chemie Grünenthal, based on his experience working with the German army’s antiviral research in Poland during WWII. http://thalidomidestory.com/story/other-notables/historical-figures/heinrich-muckter/; Thomas, Katie (2020-03-23). “The Unseen Survivors of Thalidomide Want to Be Heard”. The New York Times. ISSN 0362-4331. Retrieved 2020-03-23. THE NAZIS AND THALIDOMIDE: THE WORST DRUG SCANDAL OF ALL TIME BY ROGER WILLIAMS 9/10/12 AT 1:00 AM EDT https://www.newsweek.com/nazis-and-thalidomideworst-drug-scandal-all-time-64655 xvi

21 U.S.C. ch. 9 § 301 et seq.

xvii

Morton Mintz, AT ANY COST; Corporate Greed, Women and The Dalkon Shield. Pantheon, 1985; Susan Perry and Jim Dawson, NIGHTMARE; Women and the Dalkon Shield, Macmillan, 1985, and Sheldon Engelmayer and Robert Wagman, LORD’S JUSTICE; One Judge’s Battle to Expose the Deadly Dalkon Shield IUD, Doubleday, 1985. LORD’s Justice describes Chief Judge Miles Lord of the Federal District Court of Minnesota, who moved the Dalkon Shield cases before him, with dramatic results: record settlements, the discovery of previously undisclosed (but damning) documents still in the possession of Robins, and consideration of disciplinary action against the judge himself at the instigation of the Robins Company. See also Robin Marantz Henig, The Dalkon Shield Disaster, Washington Post, November 17, 1985, https://www.washingtonpost.com/archive/ entertainment/books/1985/11/17/the-dalkon-shield-disaster/6c58f354-fa50-46e5-877a-10d96e1de610/. xviii

February 17, 1975 The Dalkon Shield Controversy Structural and Bacteriological Studies of IUD Tails Howard J. Tatum, MD, PhD; Frederick H. Schmidt, MA; David Phillips, PhD; et alMaclyn McCarty, MD; William M. O’Leary, PhD Author Affiliations JAMA. 1975;231(7):711-717. doi:10.1001/jama.1975.03240190015009 https:// jamanetwork.com/journals/jama/article-abstract/359769 xix

94th U.S. Congress (May 28, 1976). “S.510: An Act to amend the Federal Food, Drug, and Cosmetic Act to provide for the safety and effectiveness of medical devices intended for human use, and for other purposes”. www.congress.gov. Retrieved 2018-11-29

Janyce C. Katz, Esq.

General Innovations and Goods. janyce.c.katz@gmail.com

79 | Columbus Bar L aw yers Quarterly Summer 2020


Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER

Verdict: $175,710.69. Breach of Contract. Plaintiffs Shane and Julie Erford hired defendant Andrew Parsons and his company, AMP Remodeling, LLC, to construct a two-level room addition on their existing home. The total cost of the project was to be $115,075.00 and AMP agreed to complete the project by April 4, 2017. AMP Remodeling subcontracted some of the foundation work to Defendant BJ Walls. While BJ Walls was performing its work, Parsons asked the Erfords to pay certain draws for the foundation early so that Parsons could pay BJ Walls. The Erfords complied. BJ Walls completed its work on Feb. 7, 2017. On April 18, 2017, BJ Walls returned to complete warranty work. BJ Walls then recorded a mechanics lien on April 26, indicating that BJ Walls had not been paid and was owed $37,945.81. The Erfords confronted Mr. Parsons, who assured them that he would resolve the issue with BJ Walls. The Erfords continued to pay AMP. After the Erfords paid AMP the 6th draw on the project, AMP abandoned the project, which was

still incomplete. The Erfords had paid AMP over $100,000 on the contract. The Erfords spent another $6,324.00 to finish the project. The Erfords sued AMP for breach of contract, fraud, civil theft and unjust enrichment as well as for violations of the Home Solicitation Sales Act and Consumer Sales Practices Act. They also sought to pierce the corporate veil to impose personal liability against Parsons. The Erfords also asserted claims against BJ Walls for slander of title and to quiet title. BJ Walls responded with counterclaims against the Erfords for unjust enrichment and foreclosure on the mechanics’ lien. The Court granted summary judgment in favor of the Erfords and against Parsons and AMP on plaintiffs’ claims of breach of contract, violation of the Home Solicitation Sales Act and violation of the Consumer Sales Protection Act. The Erfords and BJ Walls filed cross-motions for summary judgment on the mechanics’ lien, which the Court denied. The case proceeded to trial on the claims between the Erfords and BJ Walls and the Erfords’ claims against

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AMP and Parsons for fraud and for personal liability against Parsons by piercing the corporate veil. The jury found in favor of the Erfords on all claims. As their remedy for the violation of the CSPA, the Erford’s elected cancellation of the contract. They were awarded the $100,101.25 that they had paid to AMP. They were also awarded $46,840.69 on their fraud claim and $28,768.75 for civil theft. The Erfords also prevailed on their claims against BJ Walls and BJ Walls’ counterclaims. The Erfords were entitled to recover their attorney’s fees against BJ Walls. The Erfords and BJ Walls settled before the Court entered judgment on the attorney’s fees. No settlement negotiation information was made available. Length of Trial: Three days. Counsel for Plaintiffs: Ryan L. Thomas. Counsel for Defendant BJ Walls: Nelson Genshaft. Counsel for Defendants Parsons and AMP: Unrepresented at trial. Charley Hess entered an appearance after trial. Magistrate Mark Petrucci. Case Caption: Shane Erford, et al. v. AMP Remodeling, LLC, et al. Case No. 17 CV 7718 (2019).


Verdict: $50,780.95. ($27,030.95 in economic damages; $23,750.00 in non-economic damages) Automobile Accident. On Jan. 25, 2015, defendant Todd White was headed southbound on Sawmill Road. Plaintiff Richard Evans was headed northbound on Sawmill Road. White made a left turn onto Tuller Parkway in front of Evans and the vehicles collided. Evans asserted that the accident caused an aggravation of his bilateral osteoarthritis in his knees, which led to a knee replacement. He also asserted that he suffered a traumatic brain injury that caused chronic cognitive and emotional deficits. At the time of the accident, he was working as a manager at a Chili’s restaurant. He was fired from his job nine months after the accident. He argued that his firing was due to injuries he sustained in the accident and that he was permanently disabled and unable to work thereafter. White did not dispute that his negligence caused the accident, but disputed the nature and extent of Evans’s injuries. Past Medical Specials: $221,991.52 ($47,996.41 after write-offs); Estimated Future Medical Specials: $12,460.00. Past Wage Loss: $3,405.50; Estimated Future Wage Loss: $531,008.26. Last Settlement Demand: $265,000.00. Last Settlement Offer: $65,000.00. Length of Trial: Six days. Plaintiff’s Experts: Joseph Daly (paramedic); Emily Bush (speech pathologist);

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

Geoffrey Eubank, M.D. (neurologist); Sudhir Dubey, Psy.D. (psychologist); Jonathan Paley, M.D. (orthopedist). Defendants’ Experts: Thomas Sullivan, Ph.D. (psychologist); Stephen J. Voto, M.D. (orthopedist). Plaintiff’s Counsel: J. Scott Bowman. Defendants’ Counsel: Lisa C. Haase. Magistrate Jennifer Hunt. Case Caption: Richard Evans v. Todd White, et al., Case No. 17 CV 519 (2019).

Verdict: $19,495.19. ($17,995.17 in economic damages; $1,500.00 in non-economic damages) Automobile Accident. On Feb. 20, 2014, defendant Lewis Vollmar backed his truck out of a parking space and scraped the driver’s side of a vehicle driven by plaintiff Christina Yates, a 32-year-old home health nurse.

Vollmar was on duty with his employer, Horizon Telecom, when the accident occurred. Yates claimed that the accident caused an aggravation of her pre-existing migraine headaches. Yates had been treated for moderate to severe migraine headaches before the accident. In fact, she had just left the chiropractor’s office after a treatment for migraines when the accident occurred. After the accident, Yates treated with neurologists, chiropractors, a pain specialist, a plastic surgeon and a psychiatrist to try to manage her symptoms. She also had three migraine surgeries which involved removal of nerve muscle tissue. Vollmar and Horizon Telecom did not dispute that Vollmar was negligent. However, they disputed Yates’s claim that the accident was the proximate cause of any injury. It was their position that Yates’s symptoms were entirely related to

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her pre-existing condition. Medical Specials: $318,857.40 (reduced to approximately $100,000). Last Settlement Demand: $600,000. Last Settlement Offer: $25,000. Length of Trial: Three days. Plaintiff’s Experts: Arthur Hughes, M.D. (neurologist); Christopher Skocik, M.D. (family medicine specialist); David Boyd, Ph.D. (economist). Defendants’ Expert: Gerald Steiman, M.D. (neurologist) Plaintiff’s Counsel: Michael W. Warren and John M. Gonzales. Defendants’ Counsel: Timothy McKay. Magistrate Jennifer Cordle. Case Caption: Christina Yates v. Lewis Vollmar, et al., Case No. 17 CV 7416 (2019)

Defense Verdict. Medical Malpractice. 54-year-old Dates Buckley went to the emergency room of Mt. Carmel St. Ann’s Hospital on April 8, 2015 due to vomiting and was evaluated by defendant Ryan Longstreth, M.D. He had been seen at the same emergency room two days earlier with complaints of abdominal pain. During both emergency room visits, admission to the hospital was recommended. Buckley declined on April 6, but was admitted on April 8. Upon admission, Buckley was under the care of hospitalists defendant Sarvpreet Ahluwalia, M.D. and defendant Bashar Alawad, M.D. Buckley remained hospitalized until April 10, 2015. During his hospitalization, he had a surgical consult with defendant Kim Hamelberg, M.D. Buckley mentioned to Dr. Hamelberg that,

on April 3, 2015, he awoke in the middle of the night with crushing chest pain. Buckley’s medical records did not document that he mentioned that incident to any of his other physicians. His physicians suspected that his abdominal pain was related to diverticulitis. Buckley’s abdominal pain resolved and he was discharged with a diagnosis of abdominal pain of unknown etiology and uncontrolled diabetes. On April 21, 2015, Buckley collapsed and died. The autopsy revealed 100 percent occlusion of the left anterior descending artery and 80 percent occlusion of the right coronary artery as well as evidence of another recent infarction. Buckley was married with two sons under the age of 10. The administrator of Buckley’s estate sued Dr. Longstreth, Dr. Ahluwalia, Dr. Alawad and Dr. Hamelberg, arguing that they all fell below the standard of care in failing to order a cardiac work-up for Buckley. Plaintiff also sued Mount Carmel St. Ann’s on a respondeat superior agency by estoppel claim. Defendants argued that their care and treatment was not below the standard of care and that Buckley’s presentation did not suggest a cardiac condition. The claims against Dr. Hamelberg and Mount Carmel St. Ann’s were dismissed prior to trial. The case proceeded to trial on the claims against the emergency room physician, Dr. Longstreeth, and the hospitalists, Dr. Ahluwalia and Dr. Alawad. Medical Specials: $18,803.00 ($9,712.00 after writeoffs). Funeral Expenses: $4,005.00.

82 | Columbus Bar L aw yers Quarterly Summer 2020

Last Settlement Demand: unknown. Last Settlement Offer: none. Length of Trial: 10 days. Plaintiff’s Experts: Michael Falgiani, M.D. (emergency medicine); David Goldstein, M.D. (emergency medicine); Fred J. Simon, M.D. (surgeon); Kenny Stein, M.D. (emergency medicine); Jeffrey Breall, M.D. (cardiologist); Bruce Growick, Ph.D. (vocational expert); David Boyd, Ph.D. (economist). Experts of Defendants Ahluwalia and Aluwad: Stephen Persell, M.D. (internist); Tobia J. Mercuro, M.D. (cardiologist); Ray Magorien, M.D. (cardiologist). Experts for Defendant Longstreeth: George Taylor, M.D. (cardiologist) and Charles Emerman, M.D. (emergency medicine). Plaintiff’s Counsel: Tim Van Eman and Sarah Lodge. Counsel for Defendant Ryan Longstreth, M.D.: Mark L. Schumacher and Sandra R. McIntosh. Counsel for Defendants Sarvpreet Ahluwalia, M.D. and Bashar Alawad, M.D.: David H. Krause and Acacia B. Perko. Judge Stephen McIntosh. Case Caption: Mark C. Brookes, Individually and as Administrator of the Estate of Dates F. Buckley, deceased, et al. v. Mt. Carmel Health System, dba Mount Carmel St. Ann’s, et al., Case No. 16 CV 3020 (2019).


Defense Verdict. Automobile Accident. On April 19, 2013, plaintiff Heidi Massaro was walking across West State Street at the intersection with South Wall Street when she was struck by a taxicab driven by defendant Andai H. Ketema. Massaro sustained injuries to her left leg which required three surgeries. Ketema disputed negligence. He argued that the accident was due to Massaro’s negligence in crossing the street outside of a crosswalk. The jury found in favor of Ketema and indicated in an interrogatory that it found that Massaro was outside of the crosswalk and that the evidence did not prove that Ketema violated any traffic laws. Medical Specials: $160,502.71 (reduced to $64,000). Lost Wages: $30,901.68. Last Settlement Demand: $100,000

(policy limits). Last Settlement Offer: None. Length of Trial: Four days. Plaintiff’s Expert: Joaquin Castaneda, M.D. (orthopedic surgeon). Defendant’s Expert: none. Plaintiff’s Counsel: E. Ray Critchett. Defendant’s Counsel: John P. Mazza. Visiting Judge Patrick Sheeran. Case Caption: Heidi Massaro v. Andai H. Ketema, Case No. 17CV8351 (2019).

Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com

83 | Columbus Bar L aw yers Quarterly Summer 2020


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Columbus Bar Lawyers Quarterly Summer 2020  

This issue of Columbus Bar Lawyers Quarterly scrutinizes election law and procedure. Look inside for articles examining compulsory voting, v...

Columbus Bar Lawyers Quarterly Summer 2020  

This issue of Columbus Bar Lawyers Quarterly scrutinizes election law and procedure. Look inside for articles examining compulsory voting, v...