December 2019 Dayton Bar Briefs Magazine - Revised

The Magazine of the Dayton Bar Association | December 2019 | Vol. 69, No. 4

Dayton

Bar Briefs

DBA Holiday Luncheon Thursday, December 12, 2019 Barrister of the Month Kelly R. Howard pg 6

Dayton Bar Foundation Consider Your Giving pg 26

WORKERS COMP' & SOCIAL SECURITY

Ohio Supreme Court Expands Voluntary Abandonment Rule pg 22

CONTENTS

Dayton

Bar Briefs

December 2019 | Vol. 69, No. 4

Features

Dayton Bar Association Board of Trustees

4

TRUSTEES MESSAGE

By Denise Platfoot Lacey, Professor of Externships, UDSL

Hon. Mary L. Wiseman

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BARRISTER OF THE MONTH: KELLI R. HOWARD

By Jamar T. King Esq., Thompson Hine LLP

2019 – 2020 President

Fredric L. Young First Vice President

Merle F. Wilberding Second Vice President

Caroline H. Gentry Secretary

Lessons Learned: Values of the Legal Profession

11 2019 DBA HOLIDAY LUNCHEON

FREE to Pro Bono Volunteers at the Greater Dayton Volunteer Lawyers Project!

By Kelly A. Henrici Esq. Executive Director GDVLP

12 CRIMINAL LAW

Burden or Bad Faith: Public Records Requests and Public Entities

By Jeannine E. Hudson Esq., Green & Green Lawyers

Brandon C. McClain

Rebecca M. Gentry

13 FROM THE JUDGES DESK Wrong to Strong

Treasurer

Member–at–Large

Anne P. Keeton Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber Member–at–Large

David P. Pierce

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Executive Director

BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July.

Paid subscription: $30 / year Library of Congress ISSN #0415–0945

By The Honorable Richard S. Skelton, Montgomery County Common Pleas Court

14 DOMESTIC RELATIONS

Civility Never Goes Out of Style

By Nicole Rutter-Hirth Esq., Law Office of Gump Deal & Hirth

20 2019 ANNUAL GIFT COLUMN

By Tasha Mills, JD Candidate May 2020, UDSL 22 WORKERS COMP' & SOCIAL SECURITY

Ohio Supreme Court Expands Voluntary Abandonment Rule

By Joshua Lounsbury Esq., Coolidge Wall Co LPA

23 OLAP

Thoughts from a once-depressed lawyer: Asking for Help is a Strength

By Anonymous

Departments 16 CONTINUING LEGAL EDUCATION 25 CLASSIFIEDS Upcoming Events 8

2020 ROBERT FARQUHAR DISTRICT MOCK TRIAL COMPETITION

Volunteers Needed! Fri. January 17th | Montgomery County Courts | Training 11:00am; Trials 12:00pm

Jennifer Otchy, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308

10 DBA BOOK CLUB

Fri. January 29th | 4pm | DBA Offices, Drinks + Eats Provided! | "Devil in the Grove" by Gilbert King

The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.

11 2019 DBA ANNUAL HOLIDAY LUNCHEON

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Dayton Bar Briefs December 2019

Thurs. December 12th | Sinclair Community College Building 12 | Doors open at 11:30am

937.222.7902

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If you are interested in becoming a DBA Annual Partner, contact: Jennifer Otchy DBA Executive Director jotchy@daybar.org 937.222.7902 www.daybar.org

December 2019 Dayton Bar Briefs

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Trustee's Message

Lessons Learned: Values of the Legal Profession

“The most important lesson I learned during my externship is that there is so much more to the legal profession than just "the law."

I believe that the soft skills I learned throughout my externship experience are what differentiate a good lawyer from a great ByDenise Platfoot Lacey, Professor of Externships DBA Member-at-Large lawyer.”

University of Dayton School of Law

T

he quote above was made at the end of a recent semester by a law student reflecting on their externship experience. You may be surprised that the student did not describe an area of law in which they gained knowledge or the legal skills that they developed in their externship office. Although they most certainly acquired both legal knowledge and legal skills, the student instead focused on personal attributes or what I call “values of the legal profession.”

I routinely ask my externship students to critically reflect at the end of the semester on the most important thing they learned during their externship. Overwhelmingly, students share lessons about personal characteristics like integrity and professionalism, professional attributes like preparation and cooperation, and attitudes like self-confidence and self-motivation. Case in point: “The most important lesson I learned during my externship was that preparation, professionalism and self-accountability are the drivers of sustained legal success.”

These values of the profession are the lessons that students learn best by interacting in real-world legal settings - like externships - where they are exposed to practitioners who can model and encourage professionalism, ethical practice, and self-awareness.

Eloquently said by another student: “The most important thing I learned in my externship is that real-world legal experience is the most valuable tool for developing as a professional. Law school prepares us to think like a lawyer, but it is impossible to know how to be one without real-world experience.”

Whether or not it is purposeful, we are communicating values of the profession when we interact with law students and new lawyers.

They observe our actions, whether good or bad. Indeed: “The most important thing that I have learned at my externship is how to maintain professionalism when it is not always maintained by those around you…During my time, I saw very different levels of professionalism and several that I felt fell below the standards of what the profession requires.”

How we behave conveys values, but not always the ones we want associated with the legal profession. Ultimately, those values shape the professional development of law students and new lawyers as they transition from student to practitioner.

This leads me to a question and a challenge for you. First, the question. Take a moment to consider what lessons you would intentionally teach a law student or new lawyer about what is most important in the practice of law. Presumably, you would have a 4

Dayton Bar Briefs December 2019

lot of advice, some of which would likely have to do with values of the profession. However, if you had to pick only one lesson to pass on, what would it be? Would it be about some knowledge in an area of law that a law student or new lawyer should know? Would it be about the legal skills that a law student or new lawyer should perfect? Or, would it be about the disposition, ethics, and traits that a law student or new lawyer should aspire to have?

That brings me to the challenge. Take a moment to consider what you are doing to demonstrate the most important values of the legal profession. I would encourage you to purposefully engage in behaviors that exhibit the most important lessons that you hold dear. Assume that a law student or new lawyer is observing you from afar and show them the important values underlying the legal profession.

As we enter into a new year, it is perhaps a fitting time to engage in this type of self-reflection. When you consider goals for the coming year, remember that you have the power to influence the professional growth of law students and new lawyers by engaging in behaviors that display the values of the legal profession. To be sure: “The most important thing I learned from my externship is importance of maintaining and improving the legal profession as an individual...Truly the most divided or difficult situations were those that showed the importance of upholding the honesty and integrity that the legal profession requires… It truly takes every individual upholding their responsibility to be able to reach such a high level of integrity, but the results are worth working for. Moreover… I learned that consistent ethical behavior and honesty is the best way to uphold the profession and even improve it.”

DBA Board of Trustee Nominations

The 2019-20 Dayton Bar Association Nominating Committee will be meeting to select their slate of nominees for Second Vice President (1-year term) and Treasurer (2-year term) and present this slate to the Board of Trustees by the February 18, 2019 Board of Trustees meeting.

To those interested in serving on the DBA Board of Trustees please submit your name to DBA Executive Director, Jennifer Otchy (jotchy@daybar.org), for consideration.

Submissions must be received before January 2, 2020.

937.222.7902

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December 2019 Dayton Bar Briefs

5

Barrister of the Month

Kelli R. Howard Montgomery County Public Defender's Office

Crusader Against Bad Laws

T

he December 2019 Barrister of the Month, Kelli R. Howard, is a woman who’s seen it all. She’s battled with prosecutors and, in some cases, judges. She’s persevered through mountains of obstacles to uphold the Constitution, ensure that justice is served, and protect her clients from bad laws.

Kelli, a native of Springfield, Ohio, first became interested in the law after a high school fieldtrip to the Ohio Statehouse. As she recounted that fieldtrip, she described a scene that was more fitting of the movie Animal House than the Statehouse. State legislators shouted at each other, darted across the floor, and, without much civilized discussion, haphazardly voted on legislation affecting millions of Ohioans. Even as a young high school student, she understood that such a chaotic process inevitably led to harmful bad laws.

After high school, Kelli worked a few non-legal jobs, but the memory of that fieldtrip to the Statehouse and the chaotic law-making process never faded. She eventually went to Wright State University, where she studied abroad in Brazil and graduated Cum Laude with a degree in political science in 1998. Three years later, in 2001, she earned her juris doctor from the University of Dayton of Law School. In law school, she worked as the first judicial law clerk for the Common Pleas Court of Clark County.

But her destiny wasn’t in clerking. It was in crusading against and protecting people from our state’s bad laws. In 2002, Glen Dewar and Tim Young gave her an opportunity at the Montgomery County Public Defender’s Office. She took it and never looked back, working her way up from an assistant public defender in the juvenile division to misdemeanor manager to her current role as the office’s deputy director.

Kelli said that she had several mentors along the way, but she was particularly influenced by her office’s former director, D.K. Rudy Wehner, and former Montgomery County Juvenile Court Magistrate Judge Kevin Barnes. Rudy helped her develop into a patient but persistent lawyer. She recalled that Rudy often told her to stay virtuous and to “keep chipping away at injustices, large and small, because eventually someone would listen.” Magistrate Judge Barnes, on the other hand, helped Kelli come to terms with a sobering reality that all criminal defense lawyers must eventually realize – that success doesn’t always come in the form of a “not guilty” verdict.

Although she’s had her fair share of favorable courtroom verdicts over the years, the lessons learned from Rudy and Magistrate Judge Barnes still guide her career today. She explained that she’s often the most fulfilled when helping her most indigent clients wade through the alphabet soup of government agencies and maze of bureaucratic red tape to connect them to the resources they desperately need. Before she analyzes her clients’ legal issues, she always sits and listens to their stories. She knows it’s nearly impossible to fight one of those bad laws for a client when that client is homeless, hungry, and, ultimately, hopeless. She is compassionate and empathetic to her clients, reminding them that they are still people worthy of basic human dignity and fair treatment under the law even though they’ve found themselves tangled up in the legal system. She lets her clients know that they are more than the mistake that landed them in her office. continued on page 7

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Dayton Bar Briefs December 2019

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Zip lining in Haiti!

937.222.7902

BARRISTER OF THE MONTH: Kelli R. Howard continued from page 6 Kelli does all that she can to instill this same sense of compassion in the next generation of aspiring lawyers. She mentors younger attorneys in and out of her office. She’s also taught Criminal Law and Criminal Procedure at Central State University and American National Government and Business Law at Sinclair Community College.

When she’s not fighting for her clients against those bad laws or molding the next generation of lawyers, Kelli is being supermom to her two daughters, Cierra and Brianna. Cierra is a nurse at a local hospital and Brianna is a high school student and spectacular volleyball player. To wind down, Kelli loves traveling. She’s cruised to nearly every tropical island in this hemisphere. She also enjoys cooking for her family and friends. Her favorite dish to make is apple dumplings.

Kelli’s Christian identity is a large part of the reason why she’s compassionate and empathetic to her clients, who society has often cast aside. She attends St. Peter Catholic Church in Huber Heights and has previously served as a member of the Pastoral Council.

Kelli is currently a member of the Community Dinner Committee at St. Peter where they provide a free monthly meal and a full Thanksgiving Meal in November every year.

The Dayton legal community is blessed to have Kelli crusading against those bad laws.

DBA Office Closed

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December 2019 Dayton Bar Briefs

7

Hear Ye, Hear Ye!

Judge the Robert N. Farquhar 2020 District Mock Trial Competition

F

or the past thirteen years, I have had the privilege of coaching high school mock trial teams for a local school. Coaching has been one of the most rewarding ways in which I have given back to the community that has, in turn, given me so much. Each season, I witness kids who were shy and lacked self-confidence grow into young adults capable of holding their own in open court under the scrutiny of lawyers and judges. Each season, the high school competitors in our community become fiercer and exhibit more talent than ever before.

The students are doing their work; now it is time for us to step up to the plate.

Next month, the Dayton Bar Association will once again host and facilitate the Robert N. Farquhar District Mock Trial Competition. This year’s case asks students to examine a student’s right to free speech under the First Amendment when that speech takes place off of school grounds, but the student responsible for the speech brings its effects into the school, arguably causing disruptions to operations and threats to personal safety. The case

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Dayton Bar Briefs December 2019

focuses on whether it is permissible for a school to restrict that student’s speech in such circumstances. As usual, students will litigate the case as attorneys and portray key witnesses providing evidence of the issues before the court. The Dayton Bar Association asks you to consider giving your time on Friday, January 17, 2020 to judge a round or two so that the students may benefit from your knowledge and insight.

Plus, it’s fun! Most schools begin their mock trial season in August, meeting once or twice a week to develop their case.

Without fail, each team that competes is polished, able to think on their feet, and excited to engage in the nuances of trial law.

The learning experience they receive from their coaches is critical to success, but the comments and feedback they receive from volunteer judges is invaluable. I cannot tell you how many times I have had students tell me, whether they won or lost a trial, how meaningful the feedback they received in a round was to their development as a young adult. We need your help to provide that meaningful feedback.

Each season, I am inspired by the hard work and dedication that my students invest in such a difficult exercise. I am always in awe that, win or lose, my kids always face opponents that are well-prepared and make this competition worthwhile. I hope that you will consider joining in this experience as a judge so that you may witness, firsthand, these extra-ordinary future members of the legal profession. Training for this years competition begins at 11:00am and the first trial starts at Noon. If you would like to volunteer as a judge, please contact Chris Albrektson at calbrektson@daybar.org or 937-222-7902.

By Zachary S. Heck Co Chair DBA Editorial Board Taft Law

937.222.7902

Year

Honoree Luncheon

By Mary KC Soter DBA Editorial Board Soter Law Office Photographed from left to right: o f law that was exciting to me. I opened my office in TrotBrandon C. McClain DBA BOT Treasurer, Dave Greer, wood, there was no competition. I hired two Joint Vocational Master of Ceremonies, Thomas Rawers; Dennis Gump; graduates. On Saturday morning I would see as many as Konrad Kuczak; Merle Wilberding; James Kirkland; 1 6 people to do wills. I got a call. They wanted me to sit as an Richard Austin and Brian Weaver. acting judge in Huber Heights. I was lucky to have been an acting judge, an assistant prosecuting attorney and a defense attorney“He had a case in which the police pulled a man over o n a hunch. Pat Foley was the Judge. Denny filed a Motion to Suppress. It was granted. The case went to the Court of Appeals.

Then it went to the Supreme Court of Ohio. He said “I got our clients out.” Denny said, “Love what you do. You are going to make 50 years.”

The next honoree was James R. Kirkland. He said, “When I came in town, I started with Smith & Schnacke I had a case that went to the Supreme Court of Ohio. I had been out six years. I was in the business of people but not on the criminal side. I have been on the domestic side for 40 years.

Photo credit Terry Kuczak (wife of Honoree Konrad) I was helping people out at one of the worst times in their he 50-year honoree luncheon was held on October 17th at Sinclair lives. I was mentored by Lloyd O’ Hara, Walter Porter, Jim Gilvary and Jim Sheehan (a private investigator). One of my paralegals has Community College, Building 12. David Greer acted as the been with me 27 years! Why do I do it? I love helping people. I thank “Master of Ceremonies” and spoke about many of pivotal events of 1968-1969: TET Offensive, Martin Luther King and Bobby Kennedy everybody for their support."

The next honoree was Konrad Kuczak. He said, “Not many of us both assassinated, Nixon was President, Manson murders, a man landed are blessed to have a career that spanned 50 years. None of us do it on the moon, Judge McBride came out with Ohio Jury Instructions, the old jail was torn down, The Grant Deneau Tower was built (which alone. I have a wife of 40 years, and two lovely daughters. Danielle is was a big deal) ,the longest jury trial in our area, the Beerman jury trial an art teacher. Christy works with with fish and wildlife. Konrad mentions his brother as his very first client. He went on to acknolwedge lasted six months. Several stakeholders and pillars of the law firms of Pickrel, Schaeffer and Ebeling and Bieser Greer & Landis passed away. Carol Holm as a close friend and colleague since 1998. People who Members of the Dayton legal community, Joe Sharp, Bob Brown, Judge mentored Konrad were Pat Allen, Tom Baggott, Irving Saul, John Paul Rieser. He accredits a portion of his successful legal career to the DBA Holderman and Judge Wiseman passed away as well. and say he probably wouldn’t even had a legal career had it not been Our first 50-year honoree is Richard Austin. He had two tables with his wife and friends and he said that being a Methodist Preacher, for the DBA. Konrad went on to mention, Peg Young sent him to Jack Patricoff who would often say “A man ain’t got a legal problem until he he always has a sermon ready. In the early days of his legal career, the gives you some money.” After Konrad left Jack Patricoff, he sent him local courts were closed in August for 30 days. Richard went on to a case that began the amendment of Ohio Public Retirement.. Konrad say "All the lawyers went on vacation at that time and nobody had to ask for a continuance!" He left Dayton for St. Croix in 1985, recently went on to say, It (practing law) has been a lot of fun, a lot of heartreturning to the area this year. Richard recalled an instance in his career break. I haven’t done it alone and I’m not sure I would do it over again.

I am thankful for the opportunities I have been given”. when a Bailiff called him and said, “Judge Rice wants you over here The next honoree was Thomas G. Rawers. He said, “I thank my right now.” He had a person before him who was creating a disturbance and could not be calmed down. Richard talked to the man and wife of 52 years. She was retired and came to work for me and has been there ever since – like a Mom and Pop law firm. He said, “I went calmed him down and the man ended up being sent to Lima. After Richard spoke, Dave Greer said, “it is a tribute to stamina and an exer- to the law firm of Zarka and Karas. I asked Mike Allen to sit at the table with me. There was a guy named Kayo Kelly. He was stopped cise of that very important muscle between the ears.” and the police found drugs. I went to trial and a passenger testified the The next honoree was Dennis Gump. Dave Greer said, “Denny you’re looking good for an old guy.” Dennis said, “I didn’t like the prac- drugs belonged to my client. Kayo was Mr. Personality. He waved to tice of law, I loved it. I couldn’t wait to get up at 6:30 in the morning.

I worked with some of the best prosecutors. It wasn’t just the practice continued on page 10

T

www.daybar.org

December 2019 Dayton Bar Briefs

9

DBA EVENTS 50 Year Honoree Luncheon continued from page 9 the jury and the jury waved back to him.” In the 1970’s John Ensley put on the Dayton Gridiron and would write scripts making fun of lawyers, Thomas says he got to play the drums with Susan Dlott who would later become Federal Judge.

The next honoree was Brian D. Weaver. He said, “My sister has been giving me advice. She was a teacher. I wanted to be a lawyer. I was from Kokomo, Indiana. I am the youngest. I was born on Halloween. Everyone said this was a tremendous place to try a case because they wouldn’t get “Homered”. Brian said he started with Hugh Altick, who told him stories of how they were paid with chickens, that would be Hugh’s answer whenever Brian would ask for a raise. Brian was also told to watch Dave Greer try a case…Hugh Altick, Frances McDaniel – they all knew how to try a case! Hugh Altick wanted to know if I wanted to try a case. I said, “When is it?”

He said “Tomorrow” We were trying this case. I didn’t know much about it. I asked Hugh Altick something. He said in a loud voice, “Don’t ask me. It’s your jury!” Brian said, “A chance came up for me to become a public defender, and I jumped on it.” Brian has spent his career as a public defender until retirement. Brian said, “I am on the Monday Board, the Housing Commission, the Ethics Committee. I got involved with ethics when Frances McDaniel was head of the Bar. I got a call from the Chief Justice of the State of Ohio where I was asked to become a member of a task force. Brian went on to say, "I got conned so bad! Spent four years all over the state and ended up writing the Rules of Professional Conduct."

The next honoree was Merle F. Wilberding. He said his daughter is a teacher and his son is Chairman of a Philosophy Department.

Merle went on to say, “I was a second-year law student at Notre Dame when Bobby Kennedy was there in the morning and Martin Luther King got assassinated the same day.” Merle then proceeded to show the luncheon crowd his shoes. “I had them resoled six or seven times. In June of 1969 I graduated from law school. I got drafted.

I took the Iowa Bar exam. I grew up in Iowa. I never met a lawyer until I was in law school. The Iowa Bar exam was notoriously easy.

I took the Bar Monday, Tuesday and Wednesday and was sworn in the next day. To get a commission to be an officer in the JAG Corp. you had to be a lawyer. I was very lucky. I was in the military four years. I wrote 600 to 800 briefs and I was released from the military in 1973. Merle mentioned that, “Things in Washington were wild and wooly. I decided I needed to go back to the Heartland and I ended up in Dayton. There were 12 lawyers at Coolidge when I arrived at Dayton in 1973, Hugh Wall was the President of the Bar at that time and elder Hugh Wall said, “Why don’t you come to the Dayton Bar luncheon. Hugh Eikenbary was the speaker. I was thinking, this guy is crazy!” I had a lot of great experiences working with a lot of people – a great experience with the Coolidge firm and the DBA. Additional honorees David Deutsch and Eric Silverberg were unable to attend but where also recognized. David Greer said that Dave Deutsch was the son of a lawyer named Jake Deutsch and that he was a tenacious adversary throughout his career.

This writer has attended the 50 Year Honoree Luncheon regularly.

She always thought it was for a bunch of old people. This year she realized she is one of the old people.

Readers, this is your spot!

Back for it's second installment - the DBA Book Club January edition's literary feature will again be focused on yet another law-related and societal issues themed novel: Devil in the Grove by Gilbert King.

Join us as we meet quarterly for enlightening discussion, comradery and snacks. Participants can come and go as they please – no requirement to read every book or attend every discussion.

Bring your copy of the book, your opinions, thoughts, and perspectives to the DBA Offices on January 29th. The DBA wants to make this the experience you’ve been hoping for. Drinks and eats provided. You get to decide how you want to enjoy the book club experience!

Devil in the Grove by Gilbert King January 29, 2019 | 4:00pm | DBA Offices 2020 DBA Book Club Meetings:

March: Hillbilly Elegy: A Memoir of a Family and Culture in Crisis

by J.D. Vance

May: Book Club Selection

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Dayton Bar Briefs December 2019

937.222.7902

DBA Events

DBA Holiday Luncheon FREE to Pro Bono Volunteers at the Greater Dayton Volunteer Lawyers Project!

T

he Dayton Bar Association’s Annual Holiday Luncheon is a wonderful opportunity to reflect on the year almost behind us, and prepare to ease into the year ahead. The Greater Dayton Volunteer Lawyers Project is grateful that again this year it is collaborating with the DBA on this opportunity to break bread with the Dayton legal community. We hope you can join us at 11:30 am on Thursday, December 12th in the Great Hall at Sinclair Community College Building 12. Thanks to the generosity of the Dayton Legal Heritage Foundation of the Dayton Foundation, the Luncheon is free to anyone who has donated at least five hours to the GDVLP in 2019.

This year’s keynote speaker is Lela Klein. Trained as a labor lawyer, Lela practiced for seven years and when she moved back to Dayton, became a union attorney for the IUE-CWA. She began to volunteer in 2015 on a community project aimed at bringing a cooperative grocery store to the food desert in Dayton. She left her job at the union to co-found the Greater Dayton Union Co-op Initiative, a non-profit that helps develop cooperatives in Dayton, including the Gem City Market.

Lela is full of optimism for what together we can achieve in Dayton, particularly when it comes to lifting individuals out of poverty to a better life. Through the Gem City Market, Dayton will have a community-owned, 15,000 square foot grocery store on Salem Avenue, expanding access to healthy food for those less fortunate in our community.

The Dayton community has had a difficult year but has proven that we are DaytonStrong.

On Memorial Day, fourteen confirmed tornados decimated communities throughout the Miami Valley. First, you volunteered to staff the KROC Center efforts to provide services to tornado survivors. Then, you staffed a document replacement event so individuals could, at no charge, obtain replacement property deeds, marriage licenses, birth certificates, and other critical documentation. You then took on individualized representation for those having issues with their insurers or with contractors not performing as promised. Those efforts continue. We are also now seeing people with considerable debt issues, custody and visitation disputes because of forced relocation, and other tornado related legal service needs. It will be another year, if not two, before the legal needs of low-income tornado survivors have been met.

Just ten weeks later, the mass shooting in the Oregon District happened and you again heeded the call to volunteer. We are proud that we have assisted survivors of this tragedy applying for benefits from the Tragedy Fund through The Dayton Foundation.

We are grateful to all of our volunteers in 2019. Community needs in our traditional service areas – divorce, bankruptcy, debt collection defense, criminal record sealing, and juvenile court matters (custody, support and visitation), to name a few – all had to be met while we also took on the needs unique to 2019 related to tornados and the Oregon District shooting.

When you said yes to our request for your time – and you most definitely said yes a lot this year! – it helped us meet even more need in our community.

So, please join us on December 12th for the annual DBA Holiday Luncheon. Hear from Lela Klein as she helps build a better tomorrow for the Dayton community. Share a wonderful meal with colleagues in the profession. And know that the Greater Dayton Volunteer Lawyers Project has never been more grateful to you for your commitment to pro bono service than it has been in 2019!

2019 DBA Holiday Luncheon Thursday, December 12th | 12:00pm Sinclair Community College Bldg 12 RSVP (1) - $35 | Table (8) - $280

Register Online or Form Below:

www.daybar.org

2019 Holiday Luncheon Guest Speaker:

LELA KLEIN

EXECUTIVE DIRECTOR CO-OP Dayton

2019 DBA Holiday Luncheon RSVP (1) $35 | Table (8) $280 | Volunteered 5hrs GDVLP FREE Name: __________________________________________

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11

Criminal Law

Burden or Bad Faith: Public Records Requests and Public Entities T

he Ohio Supreme Court’s recent decision in State ex rel. Cincinnati Enquirer v. City of Cincinnati1 exposed an interesting dilemma many public officials face when responding to a public records request whether from the media or a private citizen. The Ohio Supreme Court has set forth precedence which incentivizes city officials to create policies and systems for the retention and review of police body camera footage, whereby oversight can amount to bad faith, which in turn could mean a monetary payout.

In Cincinnati Enquirer, the Enquirer requested police body camera involving a highly publicized police interaction between the City of Cincinnati’s police officers and 2 men they attempted to arrest. The City denied the Enquirer’s request, citing R.C. § 149.43(A)(1)(h): confidential law enforcement records2. The Enquirer filed for a writ of mandamus, and weeks later the City turned over the videos. Once turned over, the Court noted the videos “show nothing more than police officers driving.”3 The City now had the option to argue to the Ohio Supreme Court that driving is a confidential law enforcement record, or concede the requested videos are not investigative in nature. It chose the latter.

R.C. 149.43(C)(3)(b)(iii) authorizes a court to award fees “if the court finds that the public office or official responsible for the records acted in bad faith when the office or person voluntarily made the public records available to the relator for the first time after the relator commenced the mandamus action, but before the court issued any order concluding whether or not the public office or person was required to comply * * * ” The Ohio Supreme Court focused on the unique position the City was now in—either the City never reviewed the body camera videos, and still asserted an exception in oversight or the City did review the records, knew the videos did not contain confidential law enforcement records, and yet still claimed the exception.

The City argued against bad faith, asserting two arguments. First, that reviewing the requested body camera video would be “time intensive,” which the Court seemed to briefly consider, before ultimately rejecting. The Court specifically noted the failure of the City to provide any evidence that there was any attempt to view the videos4. Second, since the videos were innocuous in nature, the City was not trying to conceal

By Jeannine E. Hudson Criminal Law Section Green & Green Lawyers

anything of value5. Both arguments failed and the City was found to have acted in bad faith. The Enquirer’s request for attorney’s fees and court costs was granted.

This case begs the question of what policies and procedures are necessary to ensure that each and every public records request is carefully reviewed and evaluated prior to being approved or denied. Specific to police body camera footage, one must consider the number of officers at a scene and the length of each officer’s video. A “simple” arrest may actually involve multiple officers each with hours of video. The time spent evaluating and analyzing which segments of the video are confidential law enforcement records versus mundane police activity can be time consuming, but also necessary. For example, in an April 2019 interview with the Dayton Daily News, Moraine Police Chief, Craig Richardson, explained concerns many police departments face when considering whether body cameras will be implemented. He noted “there are departments that are shelving their programs because of the costs associated with [body cameras] or work that records clerks do on the back end.”6 The strain that police body cameras have placed on a city in its compliance with R.C. 149.43 is yet to be determined, as its technology is relatively new, and implementation is dependent on the police agency. Ironically, it is unknown how many public records requests Montgomery County receives pursuant to police body cameras, as a public records request would need to be submitted.

Overall, the Ohio Supreme Court seems willing to consider the nature and number of attempts a city official has made to discover the content of its police body camera videos, and seems to give leeway where a city official has taken additional time to review the video. It has, however, drawn a harsh line when it comes to oversight: oversight equals bad faith, and bad faith can mean severe financial penalties.

ENDNOTES:

4

“Giving thanks can make you happier,” Harvard Health Publishing, https://www.health.harvard.edu/ healthbeat/giving-thanks-can-make-you-happier 2 2019-Ohio 3876 2 Id at ¶ 3.

3 Id. at ¶ 13

5

1

Id. at ¶¶13-14.

Id. at ¶ 13.

6 Nick Blizzard, Moraine Considering Equipping Police with Body Cameras. Dayton Daily News.

(April 19, 2019) https://www.daytondailynews.com/ news/local/moraine-considering-equipping-policewith-body-cameras/bDF03eALHXfeuXmLWtARsL/.

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Dayton Bar Briefs December 2019

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From the Judges Desk

Wrong to Strong

By The Honorable Richard S. Skelton Montgomery County Common Pleas Court

R

ecent wrongs in the City of Dayton have emboldened the community to stay STRONG. This author was born and raised in the City of Dayton and lucky to have been raised in a time when the City’s neighborhoods were safe and thriving. Dayton was and is known worldwide as a city of innovation starting with the Wright Brothers ascent to the skies back in December of 1903. Still today when I travel I hear people comment on all the “wires” overhead utilized by our electric trolleys. Electric transit before its time.

Tragedy has befallen our City - when I say “our City”, I refer to all of us who live in the Dayton community. Whether you work/live/ visit Dayton, the recent revitalization gives hope to a City ravaged by abandoned properties and opiate/meth problems. The Levitt Center; the Water Street Development; the myriad of Downtown housing and perhaps the most important ingredient, the Dayton Police Department.

While I know it may be hard to believe, as a kid growing up within the City of Dayton limits, I did not spend most of my time in church or the library. Yes, I did have a few

www.daybar.org

encounters with Dayton’s finest. The situations were never anything serious, but the Dayton Police Officers de-escalated whatever mischief that was afoot. Through my work as an attorney and a lifelong Daytonian, I have come to know and respect many Dayton Police Officers. Every year I attend the Police Memorial at Riverscape to honor fallen officers. I encourage all to attend the event as it is moving even without the recent tragedy of Dayton Police Officer Jorge “George” Del Rio. George Del Rio appeared in my Court several times to either secure a search warrant or to testify in a motion challenging a home/vehicle/person search. As Judges of the Montgomery County Common Pleas Court, we see and hear the testimony of Dayton Police Officers regularly. I know I speak for all of the Judges when I say that we judge every witness on their own merit, be they police, experts or lay witnesses. When I am listening to a witness, many times I rank their credibility on a scale of 1 to 10 with 10 being the most credible. In light of recent events, I pulled my notes from the last time Detective

Del Rio testified in my courtroom. Not to my surprise, the number 10 was written on the notes. Detective/Officer/Husband/Father/ Grandfather was a truth teller in service of a community that he loved.

On Monday of this week, I was speaking with a person whose son had been summoned for jury duty. She told me that her boy was considering becoming a police officer. She stated there was a time when that choice was made easily - not so now. The danger attendant to the job is a parent's nightmare. On a regular basis we see Police officers testifying about situations that are fraught with hazards now part of the job. DPD and all Police Officers deal with potential life-threatening events almost daily. We must remain strong to support them. I am very proud of my City and I am also thankful for the Dayton and other Police Departments.

As the holidays near, we, the Judges in our community, wish everyone safe and festive family gatherings and hope that we will all look forward with strength toward 2020.

DPD/DAYTON STRONG!

December 2019 Dayton Bar Briefs

13

Domestic Relations

By Nicole Rutter-Hirth Co Chair Domestic Relation Law Office of Gump Deal & Hirth s

Civility Never Goes Out of Style I

t is Monday. The stakes are high. With a lengthy to-do list staring me down, I smiled as my first task was simple, yet significant: I had to determine who would write December’s article for the Dayton Bar Briefs. Would I do it myself, would I beg my co-chair, Justin Nidiffer, or would I call in a favor to a colleague? I decided to use a tried and true method of determination, the manner in which many of life’s major decisions are made. I made a quick call to Justin and, after a vigorous round of Rock, Paper, Scissors, my fate was sealed. I had lost the game and won the honor of writing this article. Justin and I briefly chatted, he congratulated me on the loss, and we discussed the recent DBA 50th Anniversary Celebration (note: Justin’s boss, Jim Kirkland, and my partner, Denny Gump, had both been honored at the event).

That conversation with Justin lingered in my mind that day. Jim and Denny had practiced law for fifty years. The thought of practicing law that long is daunting. That is 13,000 days of wearing suits, not counting the dreaded Saturday office days. If just one hour is spent on the phone with clients each day, in fifty years that is 780,000 minutes on the phone with clients. And imagine how many of those minutes ended with the thought “well, that’s ten minutes of my life

I will never get back.” And worse than all of that, practicing law for fifty years amounts to 2,650 Mondays as a lawyer. These statistics make this objective borderline nauseating. Not to mention the monotony of it all.

I had to ask Denny whether he would do it all over again. And if practicing law had changed much over fifty years. Removing his glasses, he raised the earpiece up toward his mouth in the modelesque way he has always done, smiled and said “I don’t know, but I do love it.”

It was at this moment that Denny showed me something he had found buried on his desk. It was a tiny piece of paper, the size of an iphone. He said it was his daily schedule, likely more than 30 years old. He explained his assistant would type out his schedule every night for the next day. It listed each court appearance, was scant with details, and just the perfect size to fold and stick in his shirt pocket (not his jacket pocket, we all know that’s where his pocket squares belong). I looked at the paper and that day was a particularly busy one, with several court appearances every hour. None of the judges listed on that paper were still on the bench. And many of the clients had passed away. In fact, Denny is currently handling one

continued on page 15

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Dayton Bar Briefs December 2019

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DOMESTIC RELATIONS Civility Never Goes Out of Style continued from page 14 of their estates. I commented how the paper is the exact same size as my phone, and actually resembled my iPhone’s calendar, even showing Denny my phone’s calendar for the day. He didn’t know iPhone calendars could be used for anything other than tee times.

I asked where he found the schedule and he held up an old code book (Chapter 29, criminal law, of course). I laugher and opened the book, wondering if I could even find a statute in it. He remarked he could find anything faster in the book than I could find on LexisNexis. I doubted that, especially since we recently upgraded our office internet and it was as fast as ever. But explaining internet speeds to Denny would be as fruitful as him describing his new putter to me.

It was then that I realized the practice of law has changed in its procedure but not its substance. It starts with the client. Fifty years ago, Denny met clients in the office, in the jail, or even at their home. He had to shake their hand, wanted to look at the documents they had been served, and wanted them to know he was personally there for them. I too offer a consult in the office, but DAYTON Bar Association

by the time that appointment rolls around, I have already talked to the potential client by phone, text and email, I have looked up their documents online, and searched their social media pages for any red flags. Often by the time we meet, I have already been hired. They too know I am personally there for them because I took the time to do all of that before we even met.

The next step in our area of practice is filing initial documents with the court. Fifty years ago, pleadings were typed up and filed in person at the clerk’s office. Now, most lawyers have forms on their computers that can be quickly completed, which are then then are faxed, emailed or e-filed with the court. The client’s next court date is then swiftly added to the calendar (iPhone, not paper). Admittedly, the occasional in-person filing still happens. I rarely visit the clerk’s office but I find when I do, the clerks are often appreciative to put a face to a name.

And they always ask me about Denny and if he is bringing them donuts anytime soon.

Note to self: sucking up to the clerk’s office is a timeless art that will never go away; bring donuts next time.

The comparison continues. If research was necessary, Denny used a book. I use my computer. This is not to say the old law books in our office are unnecessary. I recently used a stack of them to flatten out a new rug we bought.

HERBERT M. EIKENBARY

Trust

Perhaps the most consistent part of practicing law over time is the courtroom.

Statistically the bench and bar have become much more diverse, however the courtroom players are remarkably the same. The lawyers are dressed sharply, the clients look nervous.

There are still court reporters, though few are actual stenographers furiously typing and most are electronic record keepers, pushing buttons and monitoring sound quality. And there are still bailiffs present to ensure time and behavior are in check.

When I asked Denny what one thing has not changed in his years of practice, besides his hair color, he laughed and said “the need for civility.” He explained lawyers can be good, and they can be effective, but without civility, they will never be the best in their craft. “This is a legal community; we are all a part of it now and will be in another fifty years. The need for civility has not changed, it never will.”

And just like that, another Monday down.

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Individual loans, are available up to $6,000 at 4% interest, while grants up to $4000 are also available.

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December 2019 Dayton Bar Briefs

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C ontinuing L egal E ducation

27th Annual DBA Bench Bar Conference November 9, 2019

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A special thank you is extended to this year’s Bench Bar Conference Co-Chairs: The Honorable Anthony Capizzi & Cori R. Haper Esq.

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Dayton Bar Briefs December 2019

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A special thank you is extended to this year’s

December

Wednesday, December 4th | 9:00 - 12:15pm

Young Lawyers Division Roundup 3.0 NLT or General Hrs M $105 | NM $150 | P $0 Speakers: John M. Ruffolo Esq., DBA Bar Counsel, Ruffolo Stone & Stone Anthony S. VanNoy Esq, Anthony S. VanNoy, Inc. Stephanie M. Allen Esq. Wright State University Legal Services

Wednesday, December 18th | 9:00 - 12:15pm

A Visit to the Second District Court of Appeals Lessons in Appellate Advocacy from Within the Courtroom @ Second District Court of Appeals 3.0 General Hrs M $105 | NM $150 | P $0

Wednesday, December 18th | 1:00 - 4:15pm

Workers Comp for the General Practitioner

Thursday, December 5th | 9:00 - 12:15pm

Domestic Relations Potpourri 3.0 General Hrs M $105 | NM $150 | P $0

3.0 General Hrs M $105 | NM $150 | P $0 Speaker: Joe Gibson, Gibson Law

Thursday, December 19th | 9:00 - 12:15pm Friday, December 6th | 12:00 - 3:45pm

Well-Being Skills for the Effective Lawyer (video) PC 2.5 Professional Conduct Hr + 0.5 General Hrs M $25 | NM $45 | P$0 hrs

Tuesday, December 10th | 9:00 - 12:15pm

Federal Practice Update...The Sequel 3.0 General Hrs M $105 | NM $150 | P $0

Wednesday, December 11th | 1:00 - 4:15pm

Judge Langer's Criminal Law Update @ Sinclair Community College Building 12 3.0 General Hrs M $105 | NM $150 | P $0 Speaker: Honorable Dennis J. Langer, Montgomery County Common Pleas Court

Friday, December 13 | 9:00 - 12:15pm th

Civil Trial Insights

3.0 General Hrs M $105 | NM $150 | P $0 Speakers: Honorable Thomas Rose, U.S. District Court for the Southern District of Ohio Honorable Michael Newman, U.S. District Court for the Southern District of Ohio Honorable Gerald Parker Jr., Montgomery County Common Pleas Court Honorable Mary E. Montgomery, Montgomery County Common Pleas Court

Friday, December 20th | 9:00 - 12:15pm

27th Annual Intellectual Property for General and Corporate Practitioners 2.0 General Hrs, PC 1.0 Professional Conduct Hr M $105 | NM $150 | P $0 hrs

Friday, December 20th | 9:00 - 12:15pm

Real Property Roundup 3.0 General Hrs M $105 | NM $150 | P $0

Overview and Update on Juvenile Court 3.0 General Hrs M $105 | NM $150 | P $0 Speakers: Magistrate Julie A. Bruns, Montgomery Cty Juvenile Court Magistrate Gina A. Feller, Montgomery Cty Juvenile Court Magistrate Kathleen Lenski, Montgomery Cty Juvenile Court Topics to be covered: Delinquency; Private Custody Cases; Dependency; Abuse and Neglect Cases with a caselaw update.

Friday, December 20th | 1:00 - 4:15pm

Ethics Case Law Review and New Advisory Opinions (video) PC 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0 hrs

Monday, December 23rd | 9:00 - 12:15pm

Ethics Case Law Review and New Advisory Opinions (video) PC hrs

Tuesday, December 17th | 9:00 - 12:15pm

3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

Labor & Employment Roundup 3.0 General Hrs M $105 | NM $150 | P $0 Discussion regarding the differences and similarities between Title VII and the Ohio Civil Rights Act; the causation standards under various employment statutes; the latest 2019 updates; EEOC Civility Training and the #MeToo Movement.

Thursday, December 26th | 12:00 - 3:15pm

Business Law Basics (video) 3.0 NLT or General Hrs M $105 | NM $150 | P $0

Friday, December 27th | 9:00 - 12:15pm Tuesday, December 17th | 1:00 - 4:15pm

Estate Planning Roundup: Drafting Estate Planning Documents 3.0 General Hrs M $105 | NM $150 | P $0

Young Lawyers Division Roundup (video) 3.0 NLT or General Hrs M $105 | NM $150 | P $0

Friday, December 27th | 1:00 - 4:15pm

Ethics Case Law Review and New Advisory Opinions (video) PC 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0 hrs

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December 2019 Dayton Bar Briefs

17

M ore D ecember CLE F eatures Informative for New Lawyers!

Young Lawyers Division Roundup Wednesday, December 4, 2019 | 9:00am - 12:15pm 3.0 NLT or General Hrs M $105 | NM $150 | PP $0 Speakers: John M. Ruffolo Esq., Ruffolo Stone & Stone Anthony S. VanNoy Esq., Anthony S. VanNoy, Inc. Stephanie Allen Esq., Wright State University Student Legal Service Agenda: This three part day will begin with DBA Bar Counsel, John M. Ruffolo speaking on Ethics and IOLTA. Anthony S. VanNoy will follow with Professionalism in the practice of law. Finally, Stephanie Allen will speak on Law Practice Management.

John M. Ruffolo Esq.

Stephanie M. Allen Esq.

Anthony S. VanNoy Esq.

A Follow-up to a Phenomenal Program!

Federal Practice Update...

The Sequel continued on page 19

Tuesday, December 10, 2019 | 9:00am - 12:15pm 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: Welcome and Opening Remarks Michael N. Rhinehart Esq. - Co-Chair of the Federal Practice Section Glen R. McMurry Esq. - Co-Chair of the Federal Practice Section 9:00-10:00 am Year in Review of the U.S. District Court (Dayton) Panel: Honorable Walter H. Rice Moderator: Honorable Michael J. Newman This panel presentation will discuss recent issues concerning practice and procedures in the U.S. District Court in Dayton, and will address particular questions presented by attendees.

10:00-10:45am U.S. Supreme Court Review Laura Kloimwider Esq. and Michael S. Mayer Esq. will review U.S. Supreme Court opinions issued since December 2018. This presentation will not only offer updates to federal practitioners on recent decisions, but will also identify developing trends.

10:45-11:00am BREAK 11:00-12:15pm Federal Civil Procedure Update Honorable Michael J. Newman and Michael N. Rhinehart Esq. will present an analysis of Civil Rules updates, the Local Rules, and how case law has developed over the past year.

Michael S. Mayer Esq.

Glen R. McMurry Esq. Michael N. Rhinehart Esq.

Honorable Michael J. Newman Honorable Walter H. Rice

12:15pm ADJOURN

18

Dayton Bar Briefs December 2019

937.222.7902

Annual DBA CLE Speaker Favorite!

Judge Langer's Criminal Law Update

Wednesday, December 11, 2019 1:00pm - 4:15pm 3.0 General Hrs Honorable Dennis J. M $105 | NM $150 | PP $0 Langer Speaker: The Honorable Dennis J. Langer Montgomery County Common Pleas Court Agenda: Judge Langer will survey US and Ohio Supreme Court and appellate decisions. Topics may include: search and seizure, confessions, pretrial identifications criminal offenses, pretrial procedure, rules of evidence, trial procedure, sentencing, and CCS revocation.

2019 Appellate Court Practice Roundup

A Visit to the Second District Court of Appeals – Lessons in Appellate Advocacy from Within the Court Room Wednesday, December 18, 2019 9:00am - 12:15pm 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: In this 3-hour CLE, we will be visiting the Second District Court of Appeals courtroom for an exciting and educational tour of an appeal from start to finish. Presentations will be made on most aspects of the entire appellate process, from the notice of appeal, ensuring the record is complete, and issue spotting and brief writing. We will also feature a live oral argument and critique and address relevant motions practice. Of interest to both novel and experienced appellate practitioners, this program will be both educational and thought provoking.

2019 Estate Planning Trust & Probate Roundup

Estate Planning Roundup: Drafting Estate Planning Documents Tuesday, December 17, 2019 1:00pm - 4:15pm 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: Drafting estate planning documents 1) Wills 2) Powers of Attorney 3) Heath care documents 4) Assignments & TOD Affidavits

2019 Workers Comp Roundup

Workers Comp for the General Practitioner Wednesday, December 18, 2019 1:00pm - 4:15pm 3.0 General Hrs Joseph E. M $105 | NM $150 | PP $0 Gibson Esq. Speaker: Joseph E. Gibson, Gibson Law Agenda: In addition to being versed in Ohio Workers’ Compensation Law, the Workers’ Comp practitioner, by nature, must deal with many other areas of substantive law, more than (dare we say) the average practitioner in tax, corporate, or other areas. As a result the workers’ comp practitioner really ends up having to know many areas of the law.

Looking for an Advantage in Civil Litigation?

Civil Trial Insights

Thursday, December 19, 2019 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: Speaker Insights From The Bench: Judge Thomas Rose, U.S. District Court for the Southern District of Ohio; Judge Michael Newman, U.S. District Court for the Southern District of Ohio; Judge Gerald Parker Jr. and Judge Mary Montgomery for the Montgomery County Common Pleas Court.

Jeffrey T. Cox Esq.

Honorable Mary E. Montgomery Honorable Gerald Parker Jr.

Honorable Michael J. Newman

Honorable Thomas M. Rose

Pursuing Your Best Forum - Venue & Removal: Jeff Cox, Faruki PLL.

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19

Looking for that perfect gift for you We have done you a favor and ga will be the most wanted gifts Big Ticket Items to destress that Lawyer in your life!

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Dayton Bar Briefs December 2019

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By Tasha Mills UDSL JD Candidate May 2020

ur boss, colleague, spouse or friend? athered research on what we think s for the 2019 Holiday Season!

Fun Group Events Mix your brain power with an exciting excursion to create a unique and fun night out!

All that extra aggression that builds up in the courtroom, don’t take it out on opposing counsel, throw an axe instead. Lanes can be $ per person, conveniently booked in hour long sessions for located in Beavercreek.

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December 2019 Dayton Bar Briefs

21

Workers Comp & Social Security

Ohio Supreme Court Expands Voluntary Abandonment Rule W

hen an injured worker is unable to return to his or her former position of employment due to a work-related injury, the injured worker may receive temporary total disability compensation through the Workers’ Compensation System. The purpose of temporary total disability compensation is to compensate an injured employee for lost earnings during a period of disability while an injury heals. However, when a claimant’s voluntary actions, rather than his or her industrial injury, cause a loss of wages, that claimant is no longer eligible for temporary total disability compensation.

This is the voluntary abandonment rule.

Voluntary abandonment has evolved over time. Initially, voluntary abandonment included voluntary retirements and resignations. The rule was then expanded to include periods of incarceration and certain terminations. A termination of employment is deemed “voluntary” if there is a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as a dischargeable offense, and (3) was known or should have been known to the employee.

The Supreme Court previously limited the scope of the voluntary abandonment defense by holding that an injured worker remained entitled to temporary total disability compensation if he or she was disabled due to the work-related injury at the time of the separation of employment.

In late 2018, however, the Supreme Court overturned this limitation in State ex rel.

Klein v. Precision Excavating & Grading Co. John Klein sustained a work-related injury on November 5, 2014 while working for Precision Excavating & Grading Co. His claim was allowed for fractured ribs and traumatic hemopneumothorax. His 22

Dayton Bar Briefs December 2019

physician issued a report stating that he was temporarily unable to work from the date of injury through January 5, 2015. Based on this report, Klein requested temporary total disability compensation.

On October 31, 2014, namely five days before his injury, Klein informed his employer that he was moving to Florida and inquired as to the proper procedures for quitting his job. On November 3, just two days before his injury, he told a co-worker that he had recently given his two-week notice and intended to move to Florida. After his injury, on November 13, 2014, Klein informed the BWC that he was moving to Florida on November 20.

When Klein’s request for temporary total disability compensation came to hearing, the Industrial Commission awarded him temporary total disability compensation from November 6 (the day after his accident) through November 19, 2015 (the day before his move to Florida). The Commission concluded that Klein voluntarily abandoned his employment on November 20, when he moved to Florida. Because of this voluntary abandonment, the Commission held that he was not eligible for temporary total disability compensation beyond that date.

Klein filed a complaint in mandamus appealing the Commission’s decision. The court of appeals relied on the Supreme Court’s prior precedent and concluded that Klein remained eligible to receive temporary total disability compensation because he was disabled due to his workrelated injury at the time of his voluntary abandonment. On appeal, the Supreme Court reversed and held that Klein’s move to Florida was a voluntary abandonment of employment. Therefore, he was not entitled to temporary total disability compensation

By Joshua Lounsbury Co Chair Worker s Comp & Social Security Coolidge Wall Co LPA regardless of his medical status at the time of the abandonment.

In reaching this decision, the Supreme Court overturned its prior decisions in State ex rel. Reitter Stucco v. Indus. Comm. and State ex rel. OmniSource Corp. v. Indus.

Comm. In doing so, the Supreme Court held that when a claimant removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary total disability compensation, “even if the claimant remains disabled at the time of his separation of employment.”

Importantly, the Supreme Court refused to overturn its earlier decisions in State ex rel. Gross v. Indus. Comm. and State ex rel. Cordell v. Pallet Cos., Inc. In Gross, the Supreme Court held that the claimant was entitled to temporary total disability compensation because he was discharged for the conduct that caused his work-related injury. In Cordell, the Supreme Court held that an injured worker who was terminated for failing a post-accident drug screen was also entitled to compensation. Like Gross, Cordell’s injury resulted in the discovery of his work rule violation. The Supreme Court concluded that his termination did not amount to a voluntary abandonment for purposes of temporary total disability compensation because the discovery of the dischargeable offense occurred because of the injury.

The take-away: a voluntary abandonment, whether by resignation, termination, retirement or incarceration, will preclude payment of temporary total disability compensation unless there is a connection between the separation from employment and the work injury. The only exceptions are terminations that are closely connected to the work-related injury itself.

937.222.7902

OLAP

Thoughts from a once-depressed lawyer:

Asking for Help is a Strength

By Anonymous

Last year

I’m not ready to be open about this because I’m afraid of the repercussions, so I will remain anonymous. You see, depression isn’t treated the same as other illnesses. It carries a stigma with it.

I graduated from law from school and soon became an attorney who won more cases than lost. I’ve helped people get their homes back, saved some from domestic violence, and assisted single mothers get the support they need for their children. I’ve accomplished much more than others at this point in my life. Yet, I find it difficult to celebrate my victories. I don’t believe I am as successful as others think I am. There’s a voice inside of my head that tells me that the people are just being nice. I’m not really that successful. Anyone can do this.

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

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

Sometimes I think about suicide, but I know I would never go through with it. I couldn’t do that to my family. It would be so nice, though, to be able to relax and not feel as if I’m constantly in a relationship with a black cloud. I don’t want to feel this way. I miss the days of laughter and fun. Why can’t I get back to being me?

Today

I have severe depression. It affects the way I think, and it’s a major burden on my life…but that doesn’t mean I can’t fight it.

After staying in bed for three days straight, I decided I had to do something about my mental state before I hurt my family or my clients became victims of a negligent lawyer. I sought help, and it was worth it.

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

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

see a psychiatrist and a counselor. The psychiatrist assessed me to see if I needed to take medication, and I saw a counselor once a week for cognitive therapy, where I talked about my thoughts and the therapist taught me how to reverse my negative thoughts. After a year of cognitive treatment, I can say that I am now depression-free and am living a happy life.

I can’t say it was easy, but it was worth it. OLAP did not forget about me after that first assessment. They made sure to check up on me at least once every two weeks. I also had to check in with them so that they knew I was following my treatment plan. Knowing that I had people fighting for me was also helpful in my recovery.

Because OLAP is confidential, they did not have to disclose my depression to my employer, which eased my stress level about what my employer would do if they found out I was ill with depression.

If you suffer from depression, you are not alone. Twenty-eight percent of attorney’s struggle with some level of depression, and 19 percent show symptoms of anxiety.1 YOU ARE NOT ALONE. Depression is an illness that needs medical treatment. It cannot be cured on its own. I hope that more people begin to realize this. Most people living with depression are afraid to tell others about it in fear of being labeled as crazy or unstable. We need to educate the public about depression and how it needs to be treated as any other illness or disease.

As lawyers, we work together to help clients, to change laws. It’s time we also work together to end the stigma of mental health.

OLAP offers Ohio lawyers CONFIDENTIAL treatment options.

For more information, go to ohiolap.org or call (800) 348-4343 or (614) 586-0621.

#ENDTHESTIGMA

ENDNOTES: “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,”

by Krill, Patrick R. JD, LLM; Johnson, Ryan MA; Albert, Linda MSSW in the Jan/Feb 2016 issue of Journal of Addiction Medicine; https://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/ The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx#P49.

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December 2019 Dayton Bar Briefs

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M embers O n T he M ove Coolidge Wall Co., L.P.A. has received Metropolitan Tier 1 ranking in ten practice areas in the newly released 2020 edition of U.S. News & World Report and Best Lawyers® “Best Law Firms” list. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise among ranked law firms. The ten areas for which the firm received Tier 1 ranking are Corporate Law; Real Estate Law; Tax Law; Commercial Litigation; Employment Law – Management; Labor Law – Management; Litigation – Labor & Employment; Litigation – Real Estate; Trusts & Estates Law; and Workers’ Compensation Law – Employers. To be eligible for a ranking, a firm must have at least one lawyer listed in The Best Lawyers in America. Coolidge Wall had 19 lawyers listed in 2020 Best Lawyers. Firms selected for the “Best Law Firms” list are recognized for professional excellence and consistently receive impressive ratings from clients and peers. A tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, professionalism, and integrity.

RHINEHART

BEIERSDORFER

NAPIER

FARUKI+ is pleased to announce the following: For more info contact John Kendall, Company Contact | 937.227.3723 | jkendall@ficlaw.com

Faruki PLL (FARUKI+) and partner Erin Rhinehart were selected as Premier Health Care Lawyers (PHCL). Each year, PHCL researches and recommends leading health care lawyers and firms across the United States. Just one health care lawyer per city is selected and recommended by PHCL, and the inclusion is by invitation only. Erin will represent Dayton as the leading health care lawyer for all of 2020 and will be profiled across the PHCL website. Erin is an experienced trial lawyer with first chair jury trial experience. Her commercial litigation practice includes extensive health care industry practice including review of physician contract issues, EMTALA, balance billing, payor/provider issues, tortious interference, fraud, and various consumer claims. In addition to her health care experience, Erin frequently defends consumer class actions, and litigates various media and communication issues, intellectual property issues, and contract issues.

FARUKI+ welcomes Adam Beiersdorfer and Morgan Napier to the firm, both practicing in the Dayton office. Morgan will represent clients facing a variety of complex issues, including breach of contract, business and commercial litigation and business torts. Adam is a local Oakwood resident, recently honing his career skills in the financial sector before turning to law. Before joining Faruki+, Adam worked for the University of Dayton School of Law's Intellectual Property Clinic, providing assistance in Trademark, Trade Secret and Copyright matters for clients around the world. Morgan is a Dayton resident, and a recent law clerk for the Honorable Judge Gregory Singer in the Montgomery County Court of Common Pleas, Dayton, Ohio. Adam will represent clients facing a variety of complex issues, including breach of contract, business and commercial litigation and business torts.

JON PAUL & JOHN H. RION

Rion, Rion and Rion, L.P.A. Inc., is pleased to announce that attorney John H. Rion has been recognized once again in the 2019 edition of Lawyers of Distinction and included in the 2020 list of Super Lawyers. In addition, this year John H. Rion received recognition from the Board of Governors of the Ohio State Bar Association for his fifty years of service as Counselor of Law. In July of 2019, the Sigma Chi Fraternity Board presented John H. Rion with one of its highest honors, the Significant Sig Award, at their annual meeting in Salt Lake City, Utah. This award recognizes those alumni members whose exemplary achievements in the field of endeavor have brought great honor and prestige to the name of Sigma Chi. Only half of one percent of all Sigma Chi members have received this highest honor. John H. Rion is the past president of Rion, Rion and Rion, L.P.A. Inc., and still practices law across the state of Ohio. In addition to these accolades, Rion, Rion and Rion, L.P.A. Inc., would like to announce that Jon Paul Rion has been recognized for his fifteen years of inclusion of The Best Lawyers in America, from 2005-2020. He has also been selected in the 2020 publication list of Super Lawyers. Jon Paul Rion is the current president of Rion, Rion and Rion, L.P.A. Inc., who is celebrating over 80 years of service, having been founded by his grandfather, Paul W. Rion, in 1938. Jon Paul has tried over 100 felony jury trials, including capital murder trials. He has practiced in 30 states and enjoys a national reputation. He has dedicated his life to seeing truth and liberation for clients through the ancient practice of law which guarantees that rights and freedoms are to be defended and protected. Both John H. Rion and Jon Paul Rion are past presidents of the Ohio Association of Criminal Defense Lawyers and lifetime members of the American Board of Criminal Lawyers. Rion, Rion and Rion, L.P.A. Inc., focuses on criminal defense, appeals, domestic relations and civil law.

24

Dayton Bar Briefs December 2019

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MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted via email and are subject to editing. These accouncements are printed as space is available.

Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org

upcoming Chancery Club Luncheons These luncheons will be held at The Old Courthouse.

Great speakers & topics, delicious catered lunch, networking & discussions!

The DBA would like to thank the Eichelberger Foundation for its generosity with sponsoring these luncheons.

Remaining Chancery Club Luncheon Dates:

February 7th March 6th April 2nd May TBA

DBA Classifiedss

Classified ads are accepted each month, September through Summer.

Copy and payment must be received by the first day of the month preceding the month of publication. BAR BRIEFS EDITORIAL BOARD reserves the right to refuse any ad. Classified ads of greater length are allowed.

Members: $20 per 25 words | NonMembers: $30 per 25 words Additional $5 for DBA reply box

AMENDMENT TO THE LOCAL RULES OF PRACTICE AND PROCEDURE FOR THE MONTGOMERY COUNTY COMMON PLEAS COURT, GENERAL DIVISION REPEAL OF LOCAL RULE 1.33 EXAMINATION, CERTIFICATION, RENEWAL AND REMOVAL OF NOTARIES PUBLIC EFFECTIVE NOVEMBER 5, 2019

On September 20, 2019, the State of Ohio enacted the Notary Public Modernization Act which allows the Secretary of State to issue notary commissions to Ohio notaries. As a result, Local Rule 1.33, Examination, Certification, Renewal and Removal of Notaries Public was repealed effective November 5, 2019.

To view the court’s Local Rules, visit:

https://montcourt.oh.gov/court-rules/

ATTORNEY Rogers & Greenberg, LLP, a well-established, medium-sized downtown Dayton law firm is seeking an Ohio licensed attorney with some experience in the business, estate planning and real estate practices of law.

Please send a resume including references to: Michelle S. Vollmar, Rogers & Greenberg LLP 40 N. Main St., Suite 2160, Dayton, OH 45423 Email: mvollmar@rogersgreenberg.com

ATTORNEY Seeking a Part-Time Domestic Relations Attorney for a general practice law firm.

Applicants should have at least 1 year of legal experience. Applicants MUST be able to handle contested domestic relations cases. Our current caseload includes divorce, dissolution, child custody, and post decree modification cases. Please do not apply if you are a new attorney or an attorney that has not regularly handled domestic relations cases. The right candidate must be able to immediately take on a full case load of pending family law cases. Our attorneys will maintain a caseload of between 25-35 open/active family law cases. Other duties include handling estate planning and probate cases.

Please forward resume to P.O. Box 292232, Dayton, Ohio, 45429

LOCAL COURT RULES

Dayton Municipal Court has proposed changes to the Local Court Rules.

Please visit the Dayton Municipal Court at: http://www.daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules.

MEDIATION/ARBITRATION

William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com www.daybar.org

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For reasonably priced DBA Ad Rates view the DBA Media Kit Online: https://bit.ly/2mguP8m

Daily Court Reporter........................................................7 Eikenbary Trust..............................................................15 Ferneding Insurance......................................................13 LCNB Bank......................................................................7 National Processing Solutions..........................................5 OBLIC................................................................back cover R.L. Emmons & Associates...............................................15 Rogers McNay Insurance.................................................27 Trisha M. Duff - Mediations.............................................12 December 2019 Dayton Bar Briefs

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L aw -R elate Dayton Bar Foundation

Help us Build our Foundation Your generous gift will make a difference!

The Dayton Bar Association Foundation is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBA Foundation to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law.

Your contributions have funded DBA Foundation grants to support:

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Dayton Bar Briefs December 2019

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