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The Magazine of the Dayton Bar Association |DECEMBER 2018 | Vol. 68, No. 4


Bar Briefs ‘tis the season to consider your giving

details on pg 24

Barrister of the Month Magistrate Greg Scott pg 6

Rising Star Nadia A. Klarr Esq. pg 16

YLD A Young Lawyer and Potential Case Ideas in Wage and Hour Law pg 22



Bar Briefs

December 2018 | Vol. 68, No. 4

Dayton Bar Association Board of Trustees 2018 – 2019

David P. Pierce President

Hon. Mary L. Wiseman First Vice President

Fredric L. Young

Second Vice President

Cara W. Powers Secretary

Brandon C. McClain Treasurer

Cassandra L. Andres Rice Member–at–Large

Caroline H. Gentry Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber

Features 4 TRUSTEE'S MESSAGE You Just Got Your First Drone! Now What? By Caroline H. Gentry Esq. 6


By Thomas J. Intili Esq.


By Dominic Zambelli, Research Assistant Zimmerman Law Library UDSL

22 YOUNG LAWYERS DIVISION (YLD) A Young Lawyer and Potential Case Ideas in Wage and Hour Law

By Phil Krzeski Esq.


No Mas Revisited & Expungment

By The Honorable Richard S. Skelton


Brian L. Wildermuth Immediate Past President

John M. Ruffolo, ex officio Bar Counsel


Sally Dunker, ex officio Executive Director

DAYTON 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 Sally Dunker, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308 The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.


Dayton Bar Briefs December 2018

Event Recaps 8 PRO BONO IOC Chief Justice Visits to Praise and Promote Local Pro Bono Programs and Participation

By The Honorable Mary L. Wiseman

10 26TH ANNUAL BENCH BAR CONFERENCE LAWYERS: The Gatekeepers of Justice, Fairness and Democracy?

By Glen R. McMurry

12 WILLS FOR VETS A Tribute to Veterans

By Taylor L. Gamm

Upcoming Events 9 DBA HOLIDAY LUNCHEON Fri. December 14th | Doors open 11:30am | Sinclair Community College, Bldg 12 13 ROBERT FARQUHAR MOCK TRIAL COMPETITION Fri. January 18th | Noon - 5:00pm | Montgomery County Courthouse


Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.

Coolidge Wall Co., LPA www.coollaw.com Founded in 1853, Coolidge Wall Co., L.P.A. is a premier resource for businesses and individuals. From our historic office in downtown Dayton, we serve clients throughout the Greater Miami Valley area and all over the world. As one of the oldest and most respected law firms in Ohio, we are trusted legal professionals with a history of obtaining results.

Faruki Ireland Cox Rhinehart & Dusing P.L.L. www.ficlaw.com With offices in Cincinnati & Dayton Faruki Ireland Cox Rhinehart & Dusing P.L.L. is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.

GOLD Partner


Thompson Hine LLP www.thompsonhine.com Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience.” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.


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You Just Got Your First Drone! Now What? By Caroline H. Gentry Esq. Member-at-Large Porter Wright Morris & Arthur, LLP


ave you been thinking that it might be fun to get (or give) a drone for the holidays? If so, you are in good company. Every year, domestic sales of unmanned aerial vehicles (“UAVs,” more popularly known as “drones”) have increased exponentially as the technology has become better, less expensive and more user-friendly. So if you have been waiting for the right time, stop waiting and start flying! Below are nine tips to make your flying experience safer and to reduce your legal and financial liability. (1) Register with the FAA if your drone is over 0.55 pounds. Federal law requires every person who flies a drone that weighs more than 0.55 pounds to register with the FAA. If the drone weighs between 0.55 pounds and 55 pounds, then you can register online. Go to the FAA’s website (https://faadronezone.faa.gov/#/) and register before you fly. (2) Buy insurance. Drone insurance is not mandatory but it is an extremely good idea. Most homeowner’s policies do not provide coverage for property damage or personal injuries caused by drones. Options include on-demand drone insurance, insurance offered through the drone manufacturer, and coverage offered to members of communitybased organizations like the Academy of Model Aeronautics. Pay attention to what coverage is provided by a particular policy. Hull coverage insures damage to the drone itself and may not cover additional cameras or sensors that are expensive to replace. Liability coverage may have to be purchased separately. (3) Fly for fun, not for money. Federal law currently distinguishes between commercial UAV pilots, who must become certified and comply with the regulations in 14 CFR 107 (“Part 107”), and hobby/recre-


Dayton Bar Briefs December 2018

ational UAV pilots who are not required to follow the rules in Part 107. Pilots who do not have a Part 107 remote pilot certification but nevertheless fly their UAVs to make money—by taking videos or photography of real estate for sale or for marketing purposes, for example—are violating the law and can find themselves in trouble with the FAA. If you are flying a drone to make money, then you must comply with Part 107. (4) Know the applicable federal laws. The law is quickly evolving so stay informed by regularly reviewing the FAA’s website (https://www.faa.gov/uas/). Currently, hobby/recreational UAV pilots do not need either to pass a knowledge test or to comply with the federal regulations that apply to commercial UAV pilots, but that is expected to change under the recently-enacted FAA Reauthorization Act of 2018. Until the FAA implements this new law, hobby/recreational UAV pilots should continue to follow community-based safety guidelines like those used by the Academy of Model Aeronautics. For example, they should fly no higher than 400 feet above ground level, keep the drone within visual line-of-sight without the use of binoculars, avoid manned aircraft and emergency response efforts, notify the airport or air traffic control if within 5 miles of an airport, stay out of restricted airspace, and obtain permission from air traffic control before flying in controlled airspace. A good practice is to use an app like Hover or B4UFly before flying to confirm that a drone is permitted to be flown in certain airspace. Check the FAA’s website for further information. (5) Know the applicable state and local laws. While the extent of their authority is unclear, most state and local governments

have at least some authority to regulate drone flights and they are passing new laws every day. Some localities forbid flying UAVs in local parks or public right-of-ways, for example. Consult state and local laws before you fly, and check with public and private property owners before you fly over their property. Also remember that as a general rule, state and local laws governing privacy, negligence, trespass, other torts, and criminal violations apply equally to hobbyist/recreational UAV pilots and to commercial UAV pilots. (6) Be sensitive to privacy concerns. Drones are a new phenomenon and some people may feel, rightly or wrongly, that drones are unlawfully invading their privacy. The public also has legitimate concerns about the capture, storage, use and sale of personally-identifying data. There currently are no federal rules that govern drone flights and privacy. Until that changes, it is a good practice to review and follow the federal government’s voluntary guidelines for “neighborly” drone use (http://knowbeforeyoufly.org/uas-best-practices/). (7) Read the manual. One of the biggest mistakes that new drone owners make is to fly before reading all of the instructions. Drones are fun but they are not toys; they are complex machines that can be hazardous if not handled and flown correctly. Pay particular attention to instructions about pre-flight inspections, weather conditions, propeller assembly, battery charging and storage, and return-to-home settings.

continued on page 5


TRUSTEE'S MESSAGE: Your Just Gor Your First Drone! Now What? continued from page 4

(8) Find a safe place to fly. Avoid flying indoors or close to your house. As a new pilot, you should fly in wide open spaces where there are no trees, bodies of water or telephone wires. Also avoid flying near or over people or animals. (9) Go slow. Learning to fly a drone is like learning to ride a bike—it takes a fair amount of practice and there will likely be crashes along the way. Be patient with yourself. Practice take-offs and landings; practice going up, down and sideways; and resist the temptation to fly fast. You can lose control quickly and will have little time or room to regain control before a crash. Make control, not speed, your guiding principle. Finally, have fun! Although these issues can seem daunting, with a little work you can master them in no time and focus on what you really want to do—flying your new drone. Enjoy!


DAYTON Bar Association


HERBERT M. EIKENBARY What is The Eikenbary Trust? The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance. Individual loans, are available up to $6,000 at 4% interest, while grants up to $4000 are also available.

How to Apply: If you would like to take advantage of these programs, contact:

Sally Dunker DBA Executive Director Dayton Bar Association 109 N. Main St., Suite 600 Dayton, OH 45402-1129 sdunker@daybar.org | 937.222.7902 | www.daybar.org

December 2018 Dayton Bar Briefs



Magistrate Greg Scott O O

Greg & Son @ DBA Night Dragons - Fif th Third Fie ld

tto von Bismarck once said that people who love sausage and believe in justice should never watch either of them being made. If alive today, Bismarck would be compelled to acknowledge Magistrate Gregory T. Scott, the son of a meat cutter, and a meat cutter himself, as an exception to that admonition. Born in Lima, Ohio, on the Ides of March, 1952, Greg moved to Dayton at age three with his parents and two siblings when father, George Scott, accepted a job in the meat department at a local A & P supermarket as a member of Local 430 of the Amalgamated Meat Cutters & Butcher Workmen of North America. After a stint with Liberal Markets, and a term as the Local’s president, George went into business for himself, first with two partners owning and operating the IGA Foodliner in Xenia, later as owner of the Fifth Street IGA in Dayton, and finally as owner of the Butcher Block in Kettering. As is common in family-owned businesses, labor transcends the generations, and so it was with Greg and his siblings who even as grade schoolers learned the grocery business, and as teenagers, meat cutting. After owning the Butcher Block for forty years, George retired in 2004, but Greg continued the business for two years while securing a buyer. To this day, the Butcher Block remains the oldest family-owned business in Kettering. When not sweeping floors or stocking shelves at the Fifth Street IGA, Greg attended St. Albert the Great School before moving on to Alter High School. After graduating from Alter in 1970, Greg entered the University of Dayton though undecided about his career path. Restless after three semesters, Greg left U.D. and entered the labor force. Over the succeeding five years, Greg held a variety of jobs. He sold advertising for the Dayton Daily News-Journal Herald, he worked at several local movie theatres, both as a manager and as a projectionist, and he cut meat for his father at the Butcher Block. As often occurs in the course of a young man’s life, Cupid entered the picture striking Greg with one of his arrows on New Year’s Eve 1970, when he met his future wife, Patty, a recent Carroll High School graduate. Over the next four years, Greg’s and Patty’s romance prospered and grew culminating in marriage on September 14, 1974. By the fall of 1976, Greg, among his other jobs, was doing political surveying and polling for Dr. James Walker, the renowned Wright State University professor and political scientist. With encouragement from Dr. Walker, Greg re-entered college and continued to work for him as a Wright State student. In May, 1981, at age 29, Greg graduated from WSU with a bachelor of arts degree in motion picture arts. It was then that Greg’s career came into focus. Throughout his life, Greg has been an avid reader. His two favorite books remain Irving Stone’s Darrow for the Defense, and To Kill a Mockingbird by Harper Lee, both of which Greg read in grammar school. Through the power of prose, Greg long imagined a Darrow-like career fighting injustice in the courtroom. With college behind him, and with encouragement from Patty, Greg decided to pursue a legal career. He took the LSAT and entered law school at the University of Dayton in the fall of 1981 with classmates who would later become some of Dayton’s most accomplished lawyers, including Susan Blasik-Miller, Keith R. Kearney, Richard L. Carr, Jr., Arik A. Sherk and Bridget A. Tracy, as well as future jurists, Timothy D. Wood and Arvin S. Miller, III. Most of us begin our legal careers in earnest after law school graduation, but not Greg. During his first and second years, Greg worked for the Dayton City Prosecutor’s office doing intake hearings at night, a type of alternative dispute resolution for minor criminal complaints. During his third-year, Greg was Dayton Police Chief Tyree Broomfield’s legal aide. Upon graduation, Greg, already experienced in the mechanics of criminal prosecutions, accepted criminal appointments, primarily in Juvenile Court. In December, 1984, Greg joined Lawrence W. Henke, III and Charles F. Buck in the Talbott Tower. That association broadened Greg’s civil and criminal defense practice enabling him to handle state and federal felony criminal appointments, as well as personal injury, medical malpractice and probate cases. In 1990, Greg branched out on his own in the 111 Building continuing to handle state, federal and juvenile criminal appointments, and plaintiff ’s personal injury cases. In 1991, he became the Manny Mota of the Dayton Municipal Court, pinch hitting for four of its five judges. Indeed, between 1991 and 1995, Greg sat as an acting judge in the Dayton Municipal Court so often that he accumulated over three years of PERS credit. continued on page 7


Dayton Bar Briefs December 2018


BARRISTER OF THE MONTH: Magistrate Greg Scott continued from page 6

In 1995, Greg joined the Juvenile Division of the Montgomery County Common Pleas Court as a full-time delinquency magistrate. In 1998, the Court under Greg’s direction launched its Intervention Center, a cutting edge centralized intake unit that screens, assesses and processes children referred to the Court for delinquent and unruly behavior. The Center is a 24/7 triage operation that front-loads services to children and families, including those provided by the Artemis Center, CrisisCare, Daybreak, the Dayton Mediation Center, the Montgomery County Department of Jobs & Family Services Children Services Division, South Community Mental Health and numerous others. Its mission is to reduce the number of children requiring secure detention. Because of its countless successes, the Center has been a model for juvenile and family courts nationwide. In 2009, Greg assumed the position he now holds, Legal Services Director and Chief Magistrate of the Common Pleas Court of Montgomery County, Ohio, Juvenile Division. As such, Greg is the Court’s chief legal and operations administrator, and serves as the Court’s liaison to the Downtown Dayton Partnership as a member of its executive board. Greg’s past and present professional memberships and affiliations are too numerous to list, but include the National Council of Juvenile and Family Court Judges, the Ohio Supreme Court Advisory Committee on Technology and the Courts, and the Ohio Association of Magistrates. He has been a frequent lecturer on court administration technology, juvenile court corrections and court services, and juvenile drug and alcohol abuse interventions. Predictably, Greg’s successes and achievements extend beyond the law. He and Patty have three successful children, Kathleen Zdenek, who resides in Bellefonte, Pennsylvania, a former K-12 special education teacher who is now a certified yoga instructor for special needs children and adults; Nicholas Scott, who in keeping with family tradition is a grocery manager at Dorothy Lane Market in Oakwood; and Colleen Scott, the general manager of Blick Art Materials in Columbus, and herself an accomplished artist. Patty is a licensed physical therapy assistant at the Kettering Health Network Sports Medicine Clinic on Woodman Drive. Greg and Patty are


active parishners at St. Anthony’s Roman Catholic Church in Dayton with Greg holding offices on the parish council and the PTO. He is a member of the Knights of Columbus. He has also done extensive volunteer work for the Celtic, CityFolk and National Folk Festivals. For you courtroom lawyers who have not yet appeared before Magistrate Scott, your opportunities are diminishing rapidly, because Greg is retiring from the Juvenile Court at the end of this year. On New Years Day 2019, you will find Greg at Madden Golf Course competing in the Frozen Putter Open as he has for the past thirty years. Thereafter, he will continue his committee and volunteer work, and might even teach. In 1909, Judge Julian Mack, one of the first judges to preside over the nation’s first juvenile court in Cook County, Illinois, described the goals of the juvenile court: The child who must be brought into court should, of course, be made to know that he is face to face with the power of the state, but he should at the same time, and more emphatically, be made to feel that he is the object of its care and solicitude. The ordinary trappings of the courtroom are out of place in such hearings. The judge on a bench, looking down upon the boy standing at the bar, can never evoke a proper sympathetic spirit. Seated at a desk, with the child at his side, where he can on occasion put his arm around his shoulder and draw the lad to him, the judge, while losing none of his judicial dignity, will gain immensely in the effectiveness of his work. Julian Mack, “The Juvenile Court,” Harvard Law Review, vol. 23, 120 (1909). Magistrate Gregory Scott, like Judge Mack before him, is a visionary whose influence and labors within the Juvenile Court’s Intervention Center has merged the power of the state with a proper and sympathetic spirit. His recognition here this month is long overdue and a perfect fit for our holiday issue.

By Thomas J. Intili Esq. DBA Editorial Board Intili & Groves Co., LPA

December 2018 Dayton Bar Briefs


Chief Justice Visits to Praise and Promote Local Pro Bono Programs and Participation By Hon. Mary L. Wiseman DBA First Vice President Montgomery Cty Common Pleas Court


ith the generous support of the Eichelberger Foundation, the Greater Dayton Volunteer Lawyers Project (“GDVLP”) and the Carl D. Kessler Inn of Court (“IOC”) recently collaborated to host an event featuring remarks by Ohio Chief Justice Maureen O’Connor. Chief Justice O’Connor lauded the many innovative programs offered by GDVLP to assist the economically disadvantaged in accessing and navigating the civil justice system. Chief Justice O’Connor complimented the region’s bench and bar for actively supporting pro bono. The event was attended by, among other distinguished guests, GDVLP volunteer lawyers and staff; the DBA Leadership Development class; a cadre of lawyer mentor-mentee pairings; Martha S. Aseff, Secretary of the Commission on Professionalism; leadership from the Ohio Legal Assistance Foundation; DBA officers, trustees, and staff; IOC members and the IOC executive committee; members of the region’s state legislative delegation; and numerous magistrates and judges (mu-


Dayton Bar Briefs November 2018

nicipal, state, and federal) from across the region. Attorney Terry Posey, IOC Program Chair and former law clerk to Chief Justice O’Connor, introduced the Chief Justice and was responsible for arranging her appearance for the event. In addition to the Chief Justice’s remarks regarding the importance of pro bono, she also addressed other current issues impacting the administration of justice and governance of the bar. While addressing serious topics, the Chief Justice also added some levity to the evening. To rousing and grateful applause, Chief Justice O’Connor noted her important role in approving the rule change allowing the presence of food and snacks during CLE presentations. The event featuring Chief Justice O’Connor is part of IOC’s vibrant programming for its 2018-2019 session. The year’s prior session featured D. Allan Asbury, Senior Counsel to the Ohio Board of Professional Conduct, and DBA Bar Counsel John Ruffolo, speaking on the ethical and professional obligations associated with leaving a law firm or practice. The next IOC

meeting will feature Mr. Doyle Burke, an experienced criminal investigator and popular author. Mr. Burke will cover the various interrogation techniques used during his interesting career and how those skills can be adopted to assist lawyers in interviewing clients, witnesses, and opponents. IOC conducts eight meetings per year designed to maximize value and experience for its members. Beginning with a social hour for networking, followed by dinner for further professional and social fellowship, and concluding with an interesting one hour CLE presentation, lawyers and judges view IOC as a highlight of their month. IOC membership consists of judges, experienced lawyers, and attorneys with less experience. The goal is to cultivate professional bonds and enhance legal knowledge while assisting less experienced attorneys in gaining the relationships and skills needed for a fulfilling and successful legal career. With reasonable membership rates (ranging from $100 for students to $175/$275/$300 depending on years of experience and public(non-judicial)/ private sector), IOC encourages members of the DBA to apply for admission. IOC expresses its great appreciation to the Eichelberger Foundation, GDVLP, Chief Justice O’Connor, the IOC membership, and our region’s many judges and magistrates in attendance for this recent outstanding event. As the IOC 2018-2019 term continues, the future meetings promise to be just as interesting and successful.


oin us for a positive, uplifting message of hope about the good work being done to lift individuals in the Dayton area out of poverty. Such work includes the jobs plus initiative that the Greater Dayton Volunteer Lawyers Project has been a collaborating partner on with CareSource. This event will provide pro bono volunteers with a renewed sense of purpose and motivation to continue doing the good work they do to assist low-income individuals in our community.

2018 dba

Holiday Luncheon

Friday, December 14, 2018 RSVP (1) $35 | Table (8) $280 Sinclair Community College, Bldg 12 Doors open at 11:30am

guest speaker:

Karin VanZant, MPA

Vice President of Integrated Community Partnerships CareSource

About Karin VanZant, MPA: Since joining CareSource in 2015, Karin has overseen the

process of integrating the social determinants of health into CareSource’s’ population health model. Social determinants of health are conditions in the environments in which people are born, live, learn, work, play, worship, and age that affect a wide range of health, functioning, and quality-of-life outcomes and risks. She is considered a national expert on poverty, has given a TEDx talk on the subject and has delivered testimony to the Ways and Means Committee on welfare reforms. Prior to joining CareSource, Karin VanZant was the co-founder and Executive Director of Think Tank, Inc. Prior to starting Think Tank, Karin VanZant has served in various leadership capacities in the nonprofit sector through the Community Action Network – at the local level and as a member of the Ohio Association of Community Action Agencies. This has included working with diverse teams to develop and implement strategies and approaches aimed at fostering economic opportunity and personal and community leadership potential present among under-resourced neighborhoods and groups.

dba holiday luncheon * social time 11:30am * lunch 12:00pm I have volunteered FIVE (5) hours to the GDVLP in 2017. My lunch is FREE! Please make reservations for Reserve

register online: daybar.org

@ $35.00................................................. $________

tables of 8 @ $280.00....................................................................... $________ Please attach a list of attendees.


Total.......................... $________




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OH 45402-1129 • Phone: 937 / 222-7902 • Fax: 937 / 222-1308 To: DAYTON BAR ASSOCIATION • 109 N. Main St., Ste. 600 • Dayton,


December 2018 Dayton Bar Briefs



26th annual

DBA Bench Bar Conference Friday, November 9, 2018


The Gatekeepers of Justice, Fairness and Democracy? 2018

marked another successful Bench Bar Conference for the Dayton Bar Association. This year’s Conference boasted well over 150 attendees and some of the most innovative speakers we have enjoyed hosting. The theme of this year’s program was “Lawyers: The Gatekeepers of Justice, Fairness, and Democracy?” Consistent with that theme, our program recruited speakers on wide range of topics, including how a private practitioner can effectuate positive change as well as the state of our immigration system and the lawyer’s role in improving this system. One highlight from this year’s program included Jeff Cohen’s presentation on deal making in Hollywood, the lawyer’s role in this process, and how we as private practitioners can effectuate positive change. For those not familiar with Jeff ’s work, he is a published author and, in a former life, was the child actor who played “Chunk” in the cult Richard Donner/Steven Spielberg film The Goonies. Jeff was certainly entertaining and was a welcome addition to this year’s program. Another highlight was Ellen Freeman’s presentation regarding her immigration practice and, generally, the impact of recent immigration policy and law changes. Ellen, a partner in Porter Wright’s Pittsburg office, is very familiar with the immigration process, having immigrated to the United States herself in the 1990s. Her familiarity, understanding, and mastery of the this topic was nothing short of amazing and our lucky participants were riveted. As in prior years, our conference was greatly assisted by presentations from our local state court and federal judges, with judges filling panels in two different breakout sessions. On behalf of myself, Judge McCollum and the Bench Bar Planning Committee, we would like to extend our thanks to you, the members, for making this year’s program a success.

By Glen R. McMurry Co Chair 2018 Bench Bar Conference Dinsmore & Shohl LLP


Dayton Bar Briefs December 2018



The Gatekeepers of Justice, Fairness and Democracy?

Thank You!

The Dayton Bar Association would like to thank the following sponsors, who made the 26th Annual Bench Bar Conference possible by their generous support!



BFERNEDING arrister INSURANCE Logo Centered


Logo Flush Right

The DBA would also like to recognize the generous support of

The Estabrook Charitable Trust FERNEDING administered by Porter Wright Morris & Arthur, LLP INSURANCE

A special thank you is extended to this year’s Bench Bar Conference Co-Chairs: The Honorable Alice O. McCollum & Glen R. McMurry Esq.


December 2018 Dayton Bar Briefs


Tribute to Veterans:

Chris Albrekston, DBA Asst. Exec. Dir.; Judge Erik Blaine; Jill Dietrich, Dayton VA Director; and Charles Barnes, Dayton VA Deputy Chief of Police.

DBA Celebrates Veteran’s Day EE

By Taylor L. Gamm Esq. U.S. District Court Southern District of Ohio

ach year, our nation takes pause on November 11th to celebrate and honor the heroic and selfless individuals who have served our country. The Dayton Bar Association (DBA) continued its tradition of giving back to those Veterans by putting on their second annual event, Wills for Veterans (“Wills for Vets”). This year’s event took place on Saturday November 10, 2018 at the Dayton VA Medical Center. Wills for Vets began in 2016 as an extension of the Wills for Heroes program. Since 2008, the DBA has operated the Wills for Heroes program to provide Pro Bono legal estate planning services to first responders and their families. Though only in its third year, the Wills for Vets program has had similar success providing necessary services to the most deserving members of our community. The day began with an hour and a half training session led by Judge Eric Blaine of the Montgomery County Court of Common Pleas. Judge Blaine led a group of about thirty lawyers, law students, and judges through the various issues the volunteers might encounter during their day. Judge Michael Newman thanked all of the volunteers for their participation and impressed upon them the gratitude that the veterans would undoubtedly feel for the services they would receive. The training concluded with a final session by Attorney Lauren K. Epperley, Esq., who was just one of many volunteers participating in Wills for Vets for the third year in a row. Another of those volunteers was Dayton V.A. Medical Center Deputy Chief of Police, Charles Barnes, whose presence was a testament to his unwavering support of Veterans. From 10:30-3:00, the volunteer attorneys wrote vital documents, including last wills and related power of attorney documents, for 62 military veterans and their spouses. This year, the VA set up about ten tables in the atrium of Building Two where the veterans could confer with and be advised by our volunteer attorneys. A smaller group of attorneys visited the hospital rooms of disabled Veterans to provide their services in the comforts of their own rooms. The attorneys worked diligently to answer questions, resolve problems, and finalize an estate plan for each veteran who came before them. Veterans Day is a humbling reminder that our freedom has not come without sacrifice. While no measure can ever repay the veterans for the service they gave, Wills for Veterans is a small effort to express our gratitude and will continue and even expand in the years to come.


Dayton Bar Briefs December 2018


Volunteers Needed! Help make this annual event a success.

DBA Robert N. Farquhar District Mock Trial Competition 2019

Friday, January 18, 2019 | Noon - 5pm Montgomery County Courthouse Contact: Chris Albrektson calbrektson@daybar.org 2019 Trial Details: The 2019 case, State of Buckeye v. Quinn Woolf, challenges students to consider an individual’s right to privacy in our increasingly technological world. In September of 2018, Quinn Woolf was arrested on charges of aggravated assault and telecommunications fraud for stealing $120 million from the State of Buckeye’s pension fund. The state alleges that Quinn used a private, alphanumeric code to hack into the state’s digital wallet and drain the funds. The state is basing its claim on drone footage captured from 400 feet in the air. The footage was enhanced to show Quinn Woolf sitting under a gazebo in the backyard of the Woolf residence with a notebook and a laptop. The enhancement revealed an alpha-numeric code written in Quinn’s notebook that matched the code needed to access the state’s account. The defense has filed a motion to exclude the drone footage, claiming that police violated Quinn’s Fourth Amendment protection against unlawful search and seizure. The motion hearing will focus on the need for a search warrant; specifically, if the contracted drone operator qualifies as a state actor and if Quinn had a reasonable expectation of privacy.


December 2018 Dayton Bar Briefs


december 2018 cle Tuesday, December 4 Civil Trial Tips from the Pros: Do's and Don’ts from the Bench, Cross Examination in a Personal Injury Case 9:00am - 12:15pm | 3.0 General Hrs Location: Montgomery County Common Pleas Courtroom #4 Wednesday, December 5 Domestic Relations Update: Ohio Child Support Law 9:00am - 12:15pm | 3.0 General Hrs New Lawyer Training Core Components: Professionalism, Law Office Management and Client Fund Management 1:00pm - 4:15pm | 3.0 General Hrs or 3.0 New Lawyer Training Hrs Thursday, December 6 Labor and Employment Update: Ethics, MeToo and the EEOC & Janus and the De-Unification of Public Sector Labor Unions 8:30am - 11:45am | 3.0 General Hrs Workers Comp for the General Practitioner 12:30pm - 3:45pm | 3.0 General Hrs Friday, December 7 Ethics Case Law Review and New Advisory Opinions (video replay) 9:00am - 12:15pm | 3.0 Professional Conduct Hrs Tuesday, December 11 Federal Practice Update with the Judges 9:00am - 12:15pm | 3.0 General Hrs Wednesday, December 12 Real Property: Five Crash Courses in Five Common Real Property Matters and Legal Updates 1:00pm - 4:15pm | 3.0 General Hrs or or 3.0 New Lawyer Training Hrs Speakers: Jonathan F. Hung , Green & Green Lawyers and Robert D. Ballinger, Coolidge Wall Co., LPA Thursday, December 13 Judge Langer’s 2018 Criminal Law Update Seminar 1:00pm - 4:15pm | 3.0 General Hrs or 3.0 New Lawyer Training Hrs Location: Sinclair Community College, Building 12 Monday, December 17 2018 Probate Law Institute (video replay) 9:00am -4:45pm | 5.0 General Hrs + 1.0 Professional Conduct Hr Tuesday, December 18 2018 Annual Elder Law Update (video replay) 9:00am -4:45pm | 6.0 General Hrs Wednesday, December 19 2018 Annual Domestic Relations Institute (video replay) 9:00am -4:45pm | 5.0 General Hrs + 1.0 Professional Conduct Hr Thursday, December 20 New Lawyer Training Core Components: Professionalism, Law Office Management and Client Fund Management (video replay) 9:00am - 12:15pm | 3.0 General Hrs or 3.0 New Lawyer Training Hrs Rules of Evidence: Character and Impeachment (video replay) 1:00pm - 4:15pm | 3.0 General Hrs Friday, December 21 26th Annual Intellectual Property for General and Corporate Practitioners (video replay) 9:00am - 12:15pm | 2.0 General Hrs + 1.0 Professional Conduct Hr Ethics Case Law Review and New Advisory Opinions (video replay) 1:00pm - 4:15pm | 3.0 Professional Conduct Hrs Wednesday, December 26 Judge Langer’s Criminal Law Update Seminar (video replay) 1:00pm - 4:15pm | 3.0 General Hrs Thursday, December 27 Writing for Advocates (video replay) 9:00am-12:15pm | 3.0 General Hrs Estate Planning 101(video replay) 1:00pm - 4:15pm | 3.0 General Hrs or 3.0 New Lawyer Training Hrs Friday, December 28 Recent Ethics Violations and the Ethical Perils of Social Media (video replay) 9:00am - 12:15pm | 3.0 Professional Conduct Hrs


need new lawyer training? We've got you covered! Wednesday, December 5 New Lawyer Training Core Components: Professionalism, Law Office Management and Client Fund Management 1:00pm - 4:15pm | 3.0 General Hrs or 3.0 New Lawyer Training Hrs Wednesday, December 12 Real Property: Five Crash Courses in Five Common Real Property Matters and Legal Updates 1:00pm - 4:15pm | 3.0 General Hrs or or 3.0 New Lawyer Training Hrs Thursday, December 13 Judge Langer’s 2018 Criminal Law Update Seminar 1:00pm - 4:15pm | 3.0 General Hrs or 3.0 New Lawyer Training Hrs Location: Sinclair Community College, Building 12 Thursday, December 20 New Lawyer Training Core Components: Professionalism, Law Office Management and Client Fund Management 9:00am - 12:15pm | 3.0 General Hrs or 3.0 New Lawyer Training Hrs

Looking for Ethics, Professionalism & Substance Abuse?

Ohio attorneys are no longer required to earn a specific number of hours in ethics, professionalism, and substance abuse. Instead, attorneys may choose 2.5 hours from a range of courses that have been approved as meeting the “attorney professional conduct” requirement. Friday, December 7 Ethics Case Law Review and New Advisory Opinions 9:00am - 12:15pm | 3.0 Professional Conduct Hrs Friday, December 21 Ethics Case Law Review and New Advisory Opinions 1:00pm - 4:15pm | 3.0 Professional Conduct Hrs Friday, December 28 Recent Ethics Violations and the Ethical Perils of Social Media 9:00am - 12:15pm | 3.0 Professional Conduct Hrs

spotlights Labor and Employment Update: Ethics, MeToo and the EEOC & Janus and the De-Unification of Public Sector Labor Unions

December 6, 2018 | 8:30-11:45am 2.0 General CLE Hrs + 1.0 Hr Professional Conduct

Agenda: 8:30-9:30am Ethics Update for the Labor & Employment Attorney: Matthew Crawford, Coolidge Wall Co., LPA This session will feature ethics and professionalism decisions and recommended practices relevant for the labor and employment practitioner. 9:30-10:30am #MeToo and the EEOC: A Discussion on Recent Enforcement Trends: Trial Attorney Alessandra Ross, Indianapolis This session will cover the priorities of the EEOC within the last year as well as advice for practitioners when representing clients before the agency in the #MeToo era. 10:30-10:45am BREAK 10:45-11:45am Janus and the De-Unification of Public Sector Labor Unions: Nadia Klarr and Doug Anspach, both of Taft Law This session will feature the impact of the 5-4 Supreme Court decision in Janus v. AFSCME, which overruled over 40 years of precedent in holding that forcing non-consenting public sector employees to subsidize a union by paying an agency fee constitutes a violation of the First Amendment.

Federal Practice Update

Tuesday, December 11 | 9:00am - 12:15pm 3.0 General Hrs Speakers: Honorable Walter H. Rice, Honorable Thomas M. Rose, Honorable Michael J. Newman, Honorable Sharon L. Ovington, Michael N. Rhinehart and Glen R. McMurry.

26th Annual Intellectual Property for General and Corporate Practitioners

Thursday, December 21 | 9:00am - 12:15pm 3.0 General Hrs, incl. 1.0 Professional Conduct Hr Speakers: Matthew R. Jenkins, Jacox Meckstroth & Jenkins and Ted Lienesch, Thompson Hine LLP

Agenda: 9:00am Patents, Copyrights and Trademarks for the General Practitioner 11:00am Break 11:15am Ethics Issues Involving Intellectual Property

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Agenda: 9:00-10:00am Year in Review of the U.S. District Court (Dayton): Honorable Walter H. Rice, Honorable Thomas M. Rose and Honorable Michael J. Newman 10:00-10:45am U.S. Supreme Court Review: Honorable Sharon L. Ovington 11:00-11:45am Federal Civil Procedure Update: Honorable Michael J. Newman and Michael N. Rhinehart 11:45-12:15pm The Basics of Multidistrict Litigation (“MDL”): Glen R. McMurry, Dinsmore & Shohl LLP

Judge Langer’s 2018 Criminal Law Update Seminar

Thursday, December 13 | 1:00pm - 4:15pm 3.0 General Hrs Location: Sinclair Community College, Building 12 Speaker: Judge Dennis J. Langer

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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. www.daybar.org

December 2018 Dayton Bar Briefs



DBA Rising Star Nadia A. Klarr Esq. ““

The good, the true, and the beautiful.” These words embody the purpose of Hillsdale College, the alma mater of this month’s DBA Rising Star of the Bar, Nadia Klarr – “to seek truth, in order to discover and to act on what is good and beautiful in this life.” Many lawyers can look to these words and find advice particularly useful for their practice. But for Nadia, these words also embody a lifelong dedication to the study of the highest things, to foster personal growth and continuously improve and better herself in her practice, and to serve the community. Growing up, Nadia never had any doubts about her future life as a lawyer. She was raised in Reading, Michigan, which is a rural community with a population of about 1,100 people. Growing up in a small town provided Nadia with an appreciation for the value of community. “Community means that people really rally and support one another,” Nadia believes. “It is about building relationships and a feeling of fellowship with your neighbors.” It is that sense of community that guided Nadia’s path through college and, ultimately, to Dayton. Although Nadia’s introduction to collegiate academia began at Princeton University, she found that the Ivy League life did not appeal to her. She wanted a smaller, tightknit community valuing the merit of each unique person that could challenge her, and that could force her to think about the world in ways that tested her perspective. So, she decided to pursue her undergraduate studies at Hillsdale College, a small, private, conservative college in Michigan where she could be closer to home and fully immerse herself in the study of political science, Latin, and rhetoric. Hillsdale provides its students with a robust liberal arts education, but the focus is on teaching its students how to thoroughly understand a subject, and be able to write a robust analysis of that subject taking into account the subject’s zeitgeist. While there, Nadia was very active in both social and academic organizations. She was a member of the Kappa Kappa Gamma Fraternity for Women, and was selected to receive the Outstanding Senior Woman Award. She was also very active in forensics and debate. She was the President of Lambda Pi Eta, the National Communication Association’s official honor society; Vice President of Pi Kappa Delta, a public speaking and debate honor society, and was nationally ranked 3rd at the 2011 Pi Kappa Delta National Speech and Debate Tournament for Extemporaneous Speaking. This focus at Hillsdale on critical thinking, communication, and intensive writing affirmed Nadia’s commitment to law school, and at the end of her senior year she had committed to attending Ohio Northern University for law school. But before she could begin her education at Ohio Northern, Nadia received exciting news that would change her life forever: she was pregnant with her first child. Nadia decided it was in her family’s best interests to press pause on law school, and the following spring, she gave birth to her son, Nikolai. She enrolled in law school for the following fall semester, but this time enrolled at University of Dayton School of Law to be close to her home in Dayton. History, as Nadia noted, has a funny way of repeating itself. Because towards the beginning of her first year at UDSL, she learned she would be having a second child, Naiah Rose. This time, however, she continued her studies at UDSL. With an infant at home and another child on the way, Nadia excelled during her first year, which propelled her to a highly accomplished law student career with 9 CALI Excellence for the Future Awards, given to the highest scoring student in each law school course, and achieving academic honors. Balancing kids and coursework, Nadia made a conscious effort to be as active as possible in the community. She was a runner-up in the Walter H. Rice Moot Court Tournament, and served as the Executive Publications Editor of the Law Review. Nadia also served as a teaching assistant, a Dean’s Fellow, a Representative at Large on the Student Bar Association Executive Board, a member of the UDSL Honor Council, and was the co-founder and President of the UDSL Republican Law Society. In addition to her continued on page 17


Dayton Bar Briefs December 2018


DBA RISING STAR: NADIA A. KLARR ESQ. continued from page 16 activities inside Keller Hall, she also took time out from balancing classes and kids to meet and network with the Dayton Bar Association and the Federal Bar Association. She externed and clerked for Judge Newman, Judge Huffman, and Judge Adkins. Although many without kids would be overwhelmed at the prospect of raising two little ones while enduring law school, Nadia says she learned how to make it work: “It’s not something I would necessarily recommend, but it’s all I know. I still remember when I was about to begin the final round of the Walter Rice Moot Court competition, and just before I go on, Naiah Rose got sick in the hallway. You have to deal with it in the moment, but it makes you stronger and it is always worth it.” As a result of that hard work, she landed a job with a local business litigation firm immediately after graduation. The only problem, though, was that Nadia did not want to practice business litigation. Nadia credits Professor Richard Perna’s Employment Law class with introducing her to her love of labor and employment law. “It was very intuitive for me,” Nadia remembered, “and it represents a great intersection of so many other areas of law such as civil rights, business and finance, litigation, and tax law. Plus, it’s full of excitement with each day bringing an entirely new adventure! ” During law school, Nadia took every course she could to learn more about the area, and after graduation she continued to schedule coffee meetings and lunches with as many labor and employment attorneys she could. “I did not realize it at the time, but this allowed me to build relationships and a sense of community with people that I now work with on a daily basis, whether as a referral source or as counsel on the other


side of a matter. It allowed me to become immersed in the practice much sooner than a lot of other junior attorneys,” Nadia explained. Within a year of passing the bar, Nadia was invited to interview with her current firm, Taft Stettinius & Hollister LLP, where her practice is focused almost entirely on labor and employment. She says “it is exactly what I expected it would be. It is a lot of work at times, but it is so rewarding and so much fun.” Specifically, Nadia enjoys the fact that “as an L&E attorney, I get to work with real people who have real lives. We all have so much going on and we have problems that sometimes permeate into the work-life. So my job often involves wearing multiple hats to figure out what is the best solution to a difficult problem, considering the business climate and bottom line, the company’s culture, the people involved, and the overall goals of the company.” Nadia’s practice keeps her busy, but she still finds time to give back to her community. Out of the many boards she serves on, the most rewarding is the work she does for the Women’s Board of Dayton Children’s Hospital. The Children’s Hospital has helped Nadia’s kids, and it has a significant impact on the community and our region in a meaningful way. Coupled with the fact that there are not many Children’s Hospitals left, Nadia makes it a priority to do all she can to help. Nadia also makes time to serve on the Montgomery County Republican Central Committee, because she enjoys working at the intersection of politics and law. “It is exciting for me because at the local level you get to see the most impact. So many of our local elections are close, sometimes by a single vote, and so engaging in the local political community allows you to make a difference where you live, and you can immediately see the results.” Although her free time is limited, Nadia enjoys spending it with those who matter

the most: her family. Nikolai and Naiah Rose have been with her for every step of the way through law school and her career. Together, they live north of Dayton with Nadia’s fiancé, Michael, and his three boys. And although she doesn’t see them as often as she’d like, her parents – Holly and Marty – have supported and encouraged her every endeavor, and she loves visiting them in southern Michigan. In order to relax and de-stress, Nadia enjoys watching Ohio State football and Detroit Tigers baseball, winning a hand or two of euchre, and spending time reading biographies about historical figures and any and all books concerning the two people she most admires in law and life, Justice Antonin Scalia and President Ronald Reagan. She also enjoys taking trips to the shooting range. “There is definitely an adrenaline rush and an empowering sense of pride every time I shoot at the range,” Nadia explained. “It’s fun, challenging, and it helps me recharge.” Nadia’s career shows no signs of slowing down as she continues to handle an increasingly large caseload. She continues to participate vigorously in Dayton-area boards and causes, and her job as a mom is only ramping up with her son Nikolai turning six in just a few short months and daughter Naiah Rose turning five next June. But despite the many curveballs and challenges she may face in a given day, Nadia stays true to her center. She always strives to seek the truth, discover and do what is good, and appreciate the beautiful.

By Zachary S. Heck Esq. Chair DBA Editorial Board Taft Stettinius & Hollister LLP

December 2018 Dayton Bar Briefs



How to Have Happy Holidays s the holidays approach, like most people, I envision a relaxing and joyful time that I spend with my family and friends. I think of the good food and the time spent A together with loved ones and all the good feelings that come with these traditions. But, as

the holidays get closer, the reality sinks in. I start stressing about how many gifts to buy, how to stick to my budget, what to make for dinner, how to stay away from self-destructive coping mechanisms, how to manage my time at home and at the office, and how to make this the best time of the year for my family. It’s no surprise that the holiday season is a mixture of excitement and stress. To ease your stress during this joyful, yet stressful time, follow some of these tips that have made my holidays more enjoyable.

It’s not your responsibility to make other people happy.

Many people believe that it’s their job to make others happy. This is far from the truth. For example, your significant other hasn’t been happy at her job. Every night you coach her and try to fix her problem. You start feeling stressed because you feel helpless and cannot fix it for her. There’s a difference between loving and supporting someone and trying to fix their problems in hopes that they will be happy. We cannot change how others feel. Your spouse is responsible for her own emotions. What you can do is support her, love her, listen to her and give her advice, but you cannot change the way she feels. She owns those emotions. The truest source of happiness comes from within. “There is only one way to happiness and that is to cease worrying about things which are beyond the power of our will.” ~Epictetus (Greek Sage and Stoic Philosopher) I always keep this thought close to mind during the holidays. No matter how many gifts I buy or how much time I spend with my friends and family, I do it because it makes me happy. I know that it is not my responsibility to make them happy.

It’s ok to say no.

You are invited to several holiday parties, lunch gatherings, soirees and galas. Your best friend is stressed and wants to get together to talk, your workload is heavy, your client needs you to review paperwork, you have to make time for your child’s holiday play, and your mom wants your help baking cookies. It is nearly impossible to meet everyone’s demands and say yes to their invitations. It’s ok to say no. If saying no is difficult for you, try “Thank you for the invitation, but I have a prior engagement” or “I would love to attend your event, but I have already committed to another event.” If you are having trouble determining if you should say yes or no to the invitations, set up criteria based on your values. Ask yourself questions such as “Do I really want to do this? What do I gain from doing this? Does it interfere with family events?” This will help you choose wisely.


Dayton Bar Briefs December 2018

By Scott R. Mote, Executive Director Ohio Lawyers Assistance Program

Be present.

The best gift you can give your loved ones is your time. Yes, I know that there are emails you need to answer, phone calls to return, appointments to make, etc. Try to eradicate those thoughts while you are spending time with loved ones. Put away your phone, laptop, briefcase and anything else that reminds you of work or other responsibilities that have nothing to do with the present moment. Join conversations with your family, without thinking about how much work is waiting for you at the office. Let go of whatever is not there in that moment—the past, the future. Be there, right there, right then. “There is only one time that is important – NOW! It is the most important time because it is the only time that we have any power.” ~Leo Tolstoy

Be real.

Keep your expectations for the holidays realistic. That way you will not set yourself up for an emotional letdown. Many times, people have a vision of what the holidays will be like—happy families, tasty dinners, gorgeous decorations—but things don’t always go as planned. People argue, packages arrive too late, the food doesn’t turn out as expected, your uncle drinks too much again this year, etc. If something like this happens, it is ok. The holidays are not ruined. Be grateful for all of the things that went well.

Take it easy!

Yes, this is probably easier said than done, but make sure you take time to relax, get enough sleep, exercise and enjoy the moment. Try not to over-indulge on food and alcohol, as this can lead to more stress and anxiety. If you find yourself stressed, think of ways to decompress, such as getting a massage, meeting with a therapist, volunteering at a local food pantry, taking time for yourself and managing your expectations. If you find that you are still stressed, anxious, or overwhelmed, seek help. The Ohio Lawyers Assistance Program helps lawyers, judges and law students manage life's stresses. OLAP has saved lives, careers, marriages and families. All inquiries are confidential, (800) 348-4343 / ohiolap.org.


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December 2018 Dayton Bar Briefs


annual gi

Not too long ago it was sunny and 75. With the cold snow Are you uncertain of what to get your better half We have done you a favor and gathered research on what we th Take a look below to find suitable gifts

Gifts for Him: Putting Turf - $39.99 https://amzn.to/2RKcACC

Have you ever been criticized for spending too much time at the golf course? Have you ever posted a high score because your short game was non-existent? If so, then this is the perfect gift for you! Enjoy this indoor putting green that will enhance your game while spending time at home with the ones you cherish! Perfect your game in the wintertime so by the time spring comes, you’ll be out there with clients posting scores that were unachievable this past summer.

Beard Bib - $14.99 https://amzn.to/2T0YZIM

Are you tired of telling him to clean the sink after he is done shaving to rinse all of his trimmings? Consider this problem solved by the ultimate beard bib that catches all beard trimmings, mustache, sideburns, goatee, and hair trimmings to allow you an easy disposal. This is an excellent gift idea for the man who is in the professional work force constantly shaving to keep that clean look!

Electronic Tie Holder - $34.99 https://bit.ly/2RMkf3l

Tired of wearing wrinkled ties that have been bunched in your closet for weeks? Ask your wife this holiday for the perfect gift that a young professional can utilize. This tie rack automatically rotates by the touch of a button and has LED lights to help visibility. Can hold up to 70 ties!

Fog-Free Shower Mirror and Bluetooth Speaker - $79.99 https://bit.ly/2zCb4LA

Do you tend to sing in the shower, let alone listen to music? This shower mirror Bluetooth speaker allows you to get a clear view while listening to music at the same time! Pair your smartphone before showering to give yourself a complete range of your music library. Comes with an LED light as well as FM radio. Get ready to shower, sing, and shave!

Unisex Gifts: Apple Watch & Phone Desk Charging Port - $99.99 https://bit.ly/2qF3ax4

Are you in need of a device that is classy for the office but also able to charge your devices in an efficient manner? Are you tired of looking at a cluttered desk consumed with various cords? Consider this charging port, which keeps a modern look but allows you to charge your apple watch and iPhone both at the same time.

Towel Warmer – $99.99 https://bit.ly/2PNOoSD

Winter is approaching, which means so is the cold weather. Do you ever think about how awesome it would be if you were able to step outside of the shower and into a warm towel to wrap yourself in? Consider this towel warmer for your significant other, while being able to take advantage of it as well! 20

ift column

By Dominic Zambelli (Class of 2019) Research Assistant, Zimmerman Law Library University of Dayton School of Law

wy weather quickly upon us, Christmas Spirit is in the air! f or significant others for the upcoming holidays? hink will be the most wanted gifts for the 2018 Holiday Season! s for the ordinary young professional!

Gifts for Her: Oil Diffuser - $42.99 https://gr.pn/2AYCU6N

Do you want to diffuse fine mist into your living environment for a great aroma? This oil diffuser is smoke free and designed to humidify your living space. It comes with 16 different oil scents, including Lavender, Tangerine, Peppermint, and Tea Tree just to name a few. The lavender oil has been known to help reduce one’s stress and improve one’s ability to fall asleep at night. After a long week of work, why not diffuse an oil scent into the air to relax as a way to kick off a well-deserved weekend.

Personalized Leather Portfolio - $69.99 https://bit.ly/2PRLFI2

Are you ready to leave behind the classic wide ruled notebook to make an impressive statement at your next business meeting or conference? Customize your own leather portfolio that will help contain your notes and important papers that are essential to your success! Prices may vary depending on vendor.

Women’s Garment Bag - $165.00 https://bit.ly/2JSrFzE

Whether you’re headed on a business trip or on a long weekend getaway with the girlfriends, what better way to travel in style while keeping your clothes neat and wrinkle-free! Utilize a functional garment bag that will suffice for suits, dresses, shoes and more! Comes with interior pockets to maximize storage capacity. Prices can vary depending on vendor.

Rechargeable Wine Opener – $14.99 https://bit.ly/2T0sRVx

Do you ever enjoy a nice glass of red to end the workday? Get this electronic wine opener for the upcoming holiday to make your job that much easier! With Christmas and Holiday parties around the corner, you will be able to easily open any bottle of wine of your choice by the touch of a button so it is ready to pour within seconds!

Personalized Business Pen - $25.99 https://amzn.to/2PNteUM

Do you know of anyone who has been recently established in the legal community? With a law career full of reading and writing, what better gift is there for the newly acquired attorney! Customize this upmarket business pen that will be beneficial for them to sign off on important documents while being in the work place. Pens come in various colors and can vary in cost depending on the customized script. Comes engraved with two refillable ink cartridges.

Smartphone Sanitizer - $59.95 https://bit.ly/2qCXxPK

According to research, our cell phones carry nearly 25,107 bacteria per square inch! This makes our cell phones being one of the dirtiest objects that we come in contact with on a daily basis. For the holiday season, think about keeping your loved ones free from germs and sickness. A young working professional does not have time to be sick! 21


A Young Lawyer and Potential Case Ideas in Wage and Hour Law By Phil KrzeskiEsq. Chair YLD Committee Markovits Stock & DeMarco LLC


he mantra of many lawyers in the Dayton legal community is “to do good, not just well.” This phrase embodies the values of many young and eager attorneys. We strive to be professionally successful while simultaneously looking to benefit our community. Sometimes these goals overlap, but often they do not. For that reason, it is important to balance both. One way to do so is to find an area of law that allows you to bring in the ever-elusive billable hour, while also making a positive difference for those in need. One field of law that allows a young lawyer to pursue both ideals is wage and hour. If you have heard that wage and hour law is a bit of a complicated niche, you heard mostly right. But, there are some great opportunities for young lawyers to dip their toes in the water, do some good, and make some money. This article will give you some ideas on how to do it and what to look for.

What Laws to Use

The Fair Labor Standards Act, 29 U.S.C. § 201, et seq., establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting private sector and some government workers. Ohio has similar, but generally more favorable minimum wage (currently $8.30 per hour) and overtime laws. See Article II, Section 34a of the Ohio Constitution and O.R.C. §4111.03. For purposes of this article and getting started, the two keys are that workers must be paid at least minimum wage and at least 1.5 times their regular rate for all hours worked over 40 in a workweek. Both federal and Ohio law allow workers to recover their unpaid wages, of course. Because substantial harm results from workers not receiving their wages, both sets of laws allow for additional damages. The FLSA has a liquidated damages provision, meaning the employee is likely entitled to not only unpaid wages, but also damages in the amount of unpaid wages. Similarly, Ohio’s minimum wage law allows for damages equal to an additional two times the amount of unpaid wages. Perhaps equally important, both state and federal law have fee-shifting provisions. This means that, if the case is successful, the employer/defendant must pay your reasonable fees. This “fee shifting” is what makes it economically viable to take on cases that are small, but important to the client.

What to Look For

Most people will agree that a fair day’s work entitles one to a fair day’s pay. Below, I briefly summarize several case ideas that a young lawyer with minimal experience in wage and hour law can potentially bring. 22

Dayton Bar Briefs December 2018

I will start with an example. An employee “John” works for employer “Doe Inc.” for two weeks. John is paid Ohio minimum wage at $8.30 per hour. During week 1, John works 45 hours. During week 2, John works 35 hours. At the end of two weeks, John quits. John’s boss is understandably upset and refuses to pay John his last paycheck. After all, who is going to sue Doe Inc. for a few hundred dollars? That’s where you come in. There are at least a couple basic claims you can bring to help John. This is what we call in the office a “last paycheck case.” If an employer withheld an employee’s last paycheck, the employee did not receive any wages for those weeks worked. Consequently, that employer violated that employee’s right to receive minimum wage under both state and federal law. Here, Doe Inc. is liable to John for $664 in the amount of unpaid wages ($8.30 x 80 hours worked). John may also be entitled to liquidated damages under federal law, double damages under the Ohio Constitution, and reasonable attorney’s fees for work the lawyer performed on the employee’s behalf. Further, there is an overtime violation. Remember, John worked 45 hours in the first week. He wasn’t paid anything. So, take 1.5 times his regular rate (even if that is more than minimum wage) and apply it to those extra 5 hours of overtime. This because both the FLSA and O.R.C. 4111.03 mandate that an employee receive wages a time-andone-half the hourly wage rate for all hours worked in excess of 40 in one workweek. Now, there are exemptions that a young lawyer must be aware of. See https://www.dol.gov/whd/overtime/fs17a_overview. pdf. That said, in the minimum wage context, there is a substantial possibility that no exemption is applicable. Again, John is entitled to unpaid wages and damages. And for our purposes, John is entitled to all reasonable attorney’s fees he incurred to recover his unpaid overtime. These kind of straightforward wage and hour cases are abundant. We’re not sure why employers so often withhold last paychecks, but it happens. And it is often devastating to low-wage workers who rely on every dollar to pay their bills. Do not be afraid to jump in and assist workers in situations like this. If you bring these cases, you are making a substantial and positive impact in a person’s life. Basic wage and hour cases are a great place to do some good and gain litigation experience. Thanks to the fee shifting provisions, you can also get paid for your work. As with any litigation, the process is rarely smooth, but there are very few possible defenses in “last paycheck” cases. The employer might want to fight you for a while, but, in the end, you can succeed. I wish you the best of luck if you choose to go down this path and I am always willing to chat if you have any questions.



No Mas Revisited & Expungment By Hon. Richaed S. Skelton Montgomery County Common Pleas Court


Last week Ohio’s expungement law became significantly more liberal. Effective October 29, 2018 lower level felonies and misdemeanors are now eligible for sealing of conviction records as follows: Anyone who has been convicted of one or more offenses, but not more than five felonies for felonies of the fourth, fifth degree or misdemeanors. The wait time to apply post-conviction has also changed: If convicted of one felony (F1-F5, if eligible), three years; if convicted of two felonies (F4/F5), four year wait post-conviction; if convicted of three, four or five felonies (F4/F5, five years, and a misdemeanor, one year. The pertinent statutes re the change are R.C. 2953.32 and 2953.31. The apparent intent of the statute is to enable those convicted of low level felonies to have their record expunged after four or five years. This is especially needed when a person picks up several offenses while battling addiction. This Court would note, however, that the effort may be for naught when examining the practical effect of a conviction in today’s world. When a person is arrested, charged or convicted of a crime, a public record is created. All of these records are retrievable easily online and stored in data banks. Private background companies who specialize in providing employers record checks for new potential employees, do not suffer penalty for providing employers with information that has been subsequently sealed. In other words, once the record is created and available online, the law has not reacted sufficiently to penalize those who disclose convictions after a record has been sealed. So, a person can have their record expunged and still have a potential employer notified of the record that has been expunged. Efforts have been made to address the problem but to date there has been essentially no success. Noteworthy re the new law, there are no limits for the number of misdemeanors that can be expunged. Accordingly, a person with twenty theft convictions can have their record expunged should they wait one year after the last conviction to apply. In any expungement request/hearing, the Court shall determine if there are criminal proceedings pending against the applicant. The Court must also determine if the applicant has been rehabilitated to the satisfaction of the Court. If the prosecutor has filed an objection, the Court must consider the basis for the objection. Finally, the Court must weigh the interests of the applicant in having the record sealed versus the legitimate needs of the government to maintain the records. In other words, there is still ample discretion for the Court to disallow expungement. The exclusions for expungement remain offenses of violence or felony sex offenses. This Judge does not understand why there is not some time limit within which even violent offenders may be eligible for expungement. www.daybar.org

There are many cases where a young person is convicted of a felonious assault or robbery and has then turned their lives around completely. The felony conviction, however, will haunt their job application process for the rest of their lives. This Court would suggest that ten years of no criminal behavior and otherwise good citizenry should place a person in a position to have the transgressions of their past expunged.

No Mas Update

Some may recall this Court’s November 2017 Bar Brief article entitled “No Mas”. At the heart of the No Mas program is my conclusion that the only time Drug Addiction Treatment works is then the person with the drug problem has decided they want treatment. I postulated then and now that Court Ordered drug programs are unsuccessful unless the person wants to get treatment help. In my previous life as a criminal defense attorney, I also knew that my clients understood exactly how to play the treatment game to avoid jail - especially their most dreaded jail, the Montgomery County Jail. So, I instituted the No Mas program where offenders of low level drug crimes were put on probation but only had to: Submit to drug testing for Opiates, Meth and Cocaine twice a week, Mondays and Fridays. The reason for twice a week is b/c that testing frequency prohibits escaping a positive test by time factors. A positive test for any of the aforementioned drugs, 30 days in jail; second positive, 60; third positive 90 - all jail to be served in the Montgomery County Jail. Two no shows for testing equals one positive result, no excuses. At the end of six months of negative testing, off probation. Many thought we would be overburdening the county jail due to positive test results. I report to you the following statistical date compiled by Terra Bechtol, Montgomery County Probation Department. Terra tracked the testing starting June 22, 2017 and continuous through August 8, 2018, almost 14 months. Results: 1,368 drug tests, 26 positive. Yes, you read correct, 26, approximately 2% positive and the remaining 1,342 negative. You may also recall that this author suggested that there is no way to determine or label an outcome as a successful result because success cannot be, my opinion, defined. We don’t know if someone leaves a treatment center and then smokes meth on the way home. Likewise, when offenders are done with No Mas, they may immediately return to their drug use. The point is that no one can define success unless a person were to agree to very long term daily drug testing. The purpose of No Mas is to keep people from using drugs for six months so that perhaps they will have developed habits to beat their addiction. As stated, if they want treatment help at any time, we provide. Phase II of No Mas begins January 2919 wherein this Court seeks to partner with employers throughout the Miami Valley to provide jobs for offenders demonstrating abstinence from drug use. December 2018 Dayton Bar Briefs


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Landlord Tenant Clinics Assist with life-altering housing issues By Lindsey Posey Esq. Social Security Admin, Ofc of Disability Adjudication and Review


ould you know your rights if you received an eviction notice? How about if the landlord failed to make a major repair as required under the lease or failed to provide a required utility? Unfortunately, many low-income people in the Miami Valley face issues just like these, which threaten their housing and financial security. Housing plays a critical role in providing stability to poor families, and affects health and jobs. In fact, research shows that evictions can have enduring effects on families’ abilities to obtain basic necessities, such as food, clothing, and medicine, and can cause significant stress, anxiety, and even depression. Other studies link inadequate housing to frequent school moves, high rates of absenteeism, and low test scores among children, as well as job loss for parents. In efforts to help address the threats to housing security in the Miami Valley, the Greater Dayton Volunteer Lawyers Project (GDVLP), through a partnership with Thompson Hine LLP, offers a Landlord Tenant Clinic to assist low-income tenants facing possible eviction, habitability problems, rent increases, and other issues. Twice per month, attorneys from Thompson Hine meet with individuals to provide free legal information to unrepresented tenants involved in housing disputes. The GDVLP Landlord Tenant Clinic helps individuals who are in danger of losing their housing due to situations ranging from mobile home park evictions to foreclosures against landlords, as well as other issues including illegal evictions, lockouts, termination of utilities, seizure of personal property, and month-to-month tenancy agreements. As part of the clinic, volunteers help selfrepresented individuals understand housing law and guidelines, including the rent escrow process and other rights. Volunteers also explain court proceedings, assist clinic


participants in preparing pleadings, provide guidance on how to best present their cases in court, make referrals to legal service providers in appropriate cases, and and help low-income litigants identify financial and other social service resources that might be available. “We help with almost all private housing issues,” says Thompson Hine attorney Jessica Salisbury-Copper. “We review leases and eviction paperwork to determine if the tenant has an arguable defense. We also explain the law. Often, we help people realize they cannot just stop paying rent—they must use the rent escrow process. We help them understand that their odds of success are improved if they know the law.” The clinic has also evolved over time, initially offering in-person meetings held at the GDVLP offices. Now, to provide more flexibility and allow volunteers to meet with individuals experiencing upcoming court dates or emergencies, clinic sessions are held virtually. GDVLP paralegal Tom Snelling meets with clinic participants and sets up a Skype connection with Thompson Hine volunteers, who are able to access case information from their offices through GDVLP’s online case system. On a time sensitive basis, attorneys will also counsel individuals via telephone.

“It’s also very easy to volunteer,” Salisbury-Copper comments. “The GDVLP staff do all the groundwork of intake, arranging the meetings, and setting up the Skype connection. I can review the participant’s file from my own computer, and the virtual setup allows me to volunteer when my schedule allows.” While sometimes it is just softening the landing of an impending eviction, the Clinic has also resulted beneficial outcomes to participants that might not have otherwise occurred. Tenants have defeated unlawful evictions, obtained judgments for wrongful eviction, recovered improperly withheld deposits, and obtained necessary repairs. Of his experience volunteering with the GDVLP Landlord Tenant Clinic, Thompson Hine attorney Scott King says, “stable housing does more than just provide a roof over someone’s head. Housing affects every area of a family’s wellbeing, from personal health to a child’s education. I am happy to use my skills to help meet these needs in the Miami Valley.” The GDVLP partners with pro bono attorneys and other volunteers to offer legal assistance to low-income individuals in civil case areas. For more info visit www.gdvlp. org or contact Kelly Henrici, Executive Director, at kelly@gdvlp.org or (937) 461-3857.

ad index

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DAYTON Bar Association

members on the move

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 a promotion or 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 online: https://www.daybar.org/ MembersOnTheMove and are subject to editing. These accouncements are printed as space is available. Questions, contact: DBA Communications Manager, Shayla M. Eggleton: publications@daybar.org.

Green & Green, Lawyers is proud to announce that Jane M. Lynch has been selected by her peers to be included in the 2019 Edition of The Best Lawyers in America© for her work in the practice areas of Civil Rights Law and Litigation - Insurance. Green & Green, Lawyers was also recognized in the 2019 Edition of U.S. News -Best Lawyers -Best Law Firms. Ms. Lynch is a shareholder and principal of Green & Green, LYNCH Lawyers, and is admitted to practice before the United States Supreme Court, the U.S. Court of Appeals for the Sixth Circuit, and the Ohio Northern and Southern U.S. District Courts. Ms. Lynch has been selected as an Ohio Super Lawyer® since 2006. She is a Fellow of the American Bar Foundation and the Ohio Bar Association Foundation, and is a member of the Federation of Defense & Corporate Counsel. Miller Walker & Brush is pleased to announce that Michael Miller and Michael Brush have been honored by Super Lawyers for 2019. Miller was selected to the 2019 Ohio Rising Stars list for a 11th straight year. Only 2.5% of attorneys in Ohio receive this selection. Brush was selected to the 2019 Ohio Super Lawyers BRUSH list for the 2nd year in a row. Only 5% of attorneys in MILLER Ohio receive this selection. Each honor is reserved for those lawyers who exhibit excellence in practice.


The law firm of Horenstein, Nicholson & Blumenthal, LPA is proud and excited to announce that Robert C. Walter of Beavercreek, Ohio has been unanimously voted in as the firm’s newest partner and shareholder. Mr. Walter has the distinction of being the youngest and fastest rising partner in the firm’s nearly forty years of serving the greater Dayton community. Mr. Walter has focused his practice in the area of Social Security disability.

Gary Weston, an attorney with Legal Aid of Western Ohio (LAWO) Dayton office, is a co-recipient of the Ohio Legal Assistance Foundation’s Denis J. Murphy Award. The Denis J. Murphy Award is presented annually to recognize outstanding leadership and advocacy within Ohio’s legal aids. Gary has been leading and managing legal service organizations, projects, and teams for more than 30 years. He has developed and WESTON implemented many innovative programs and partnerships at Legal Aid of Western Ohio to meet the legal needs of Ohioans struggling to make ends meet. His most recent work involves helping seniors. He created and leads a project, “Plan Ahead and Protect Yourself,” that helps to combat elder abuse, neglect, and exploitation. Hundreds of “Plan Ahead” presentations have been made to seniors throughout the Dayton area, with follow up scheduled as-needed.In 2006, Weston was the first recipient from the Miami Valley to receive the Distinguished Service Award from Advocates for Basic Legal Equality and Legal Aid of Western Ohio. In 2012, he was recognized as a Dayton Bar Association Foundation Life Fellow. Faruki Ireland Cox Rhinehart & Dusing PLL has been named to 2019’s U.S. News— Best Lawyers “Best Law Firms” List. The firm has earned recognition in the Dayton metropolitan area for the following practice areas: Tier 1: Commercial Litigation, Antitrust Litigation, Intellectual Property Litigation. 26

Dayton Bar Briefs December 2018

classifieds For info concerning Classified Ad and Display Ad Space in the Dayton Bar Briefs or any other DBA Publication (Discount Rates available!), contact DBA Communications Manager, Shayla M. Eggleton: publications@daybar.org.

FORENSIC CLINICAL PSYCHOLOGIST James Daniel Barna, Ph.D., J.D. 47-years experience 2nd opinions Expert rebuttal witness jamesdanielbarna.com All Courts (937) 236-0085 LOCAL COURT RULES D ay to n M u n i c i p a l Co u r t h a s p ro p o s e d 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 MEDIATION/ARBITRATION JOHN M. MEAGHER, Judge (Retired) Still accepting invitations to Serve as a mediator or arbitrator My fees are adjustable to length of service, number of parties, etc. No charge for travel Call (937) 604-4840 Jmeagher2@gmail.com *1995-present: 2,100+ mediations 50+ Arbitrations OFFICE SPACE FOR LEASE Professional office space for lease on South Dixie, south of Dorothy Lane. Great location, convenient parking, large conference room, generous lease terms, other amenities. Offices are about 120 sq ft in size, starting at $400.00 per month. Contact Greg at (937) 294-2468 x205 or greg@ranac.com. POSITION AVAILABLE General practice firm with emphasis on business, litigation, estate planning and elder law has an opening for an attorney. Independent caseload and client interaction. Applicant should be hard working and have excellent writing skills. Medicaid planning experience desired, but is not required. Send resume and writing samples to: Simon Patry, Dysinger & Patry, LLC, 249 S. Garber Drive, Tipp City, Ohio 45371 or spatry@dysingerlaw.com. STUNNING OFFICE SPACE AVAILABLE Local law firm looking to share existing office space. Class A, 4 offices with 2 conference rooms. Phone and internet included, collaboration on Administrative resources available. Fairfield Commons, second floor. Contact Holly Potter 614.737.2900



December 2018 Dayton Bar Briefs


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December 2018 Dayton Bar Briefs Magazine  

December 2018 Dayton Bar Briefs Magazine