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The Magazine of the Dayton Bar Association |FEBRUARY 2017 | Vol. 66, No. 6


Bar Briefs when clients & colleagues come looking...

where will you be found?

2018 Pictorial Legal Directory Prep Underway!

where will you be found? 2018 Pictoral Directory pg 20

Barristers of the Month Lisa S. Pierce Esq. & David P. Pierce Esq. pg 4

EPT&P Committee Fast “Lame Duck” pg 6


Bar Briefs


February 2017 | Vol. 66, No. 6

Dayton Bar Association Board of Trustees 2016 – 2017

Susan D. Solle President

Brian L. Wildermuth First Vice President

David P. Pierce

Second Vice President

Barbara J. Doseck Secretary

Jonathon L. Beck Treasurer

Lynnette Dinkler Member–at–Large

Angelina N. Jackson Member–at–Large

Hon. Timothy N. O’Connell Member–at–Large

Merle F. Wilberding Member–at–Large

Kermit F. Lowery

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

William B. Wheeler, 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 William B. Wheeler, Executive Director Shayla M. Eggleton, Publications 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 February 2017

FEATURES 3 TRUSTEE’S MESSAGE Engaging the Next Generation By Brian L. Wildermuth Esq. 4


By David C. Greer Esq.

6 8




Fast "Lame Duck"

By Edward M. Smith Esq.

REAL PROPERTY COMMITTEE Foreclosure, Title Reform: Beginning to Address Needed Updates to Real Property Law in Ohio

By Sam G. Brinker Esq.

THURGOOD MARSHALL LAW SOCIETY Sweatt v. Painter: One of Thurgood Marshall's Greatest Gifts to Lawyers of Color

By Jamar T. King Esq.

FROM THE JUDGES DESK Judge Langer's Criminal Law Top 10 List

By Hon. Dennis J. Langer


THE DAYTON FOUNDATION The Charitable Giving Discussion

By Diane B. Brunn Esq.



Where Will YOU Be Found in the New Directory





UPCOMING EVENTS 10 CHANCERY CLUB LUNCHEON Fri. February 10, 2017 | The Old Courthouse | Doors open at 11:30am

Seating is Limited YOU must RSVP: calbrektson@daybar.org


PARALEGAL DAY CELEBRATION Wed. April 12, 2017 | Sinclair Colleg, Bldg 7 Tartan Marketplace | 11:30-1:00p



Engaging the Next Generation N N

ew Lawyers As a DBA officer, I have interacted with officers and executive directors of other metropolitan bar associations. Many have expressed a similar membership concern. How do we attract, serve, and retain the next generation of lawyers? Perhaps the Great Recession contributed to this concern. Most would agree that lawyers entering the profession over the past 6 to 8 years have faced a challenging environment (less legal work, a tight job market, large student loan obligations, etc.). It seems that the traditional law firm/private practice track, and the in-house mentoring and learning that went with it, is becoming less and less common. More and more lawyers are coming out of law school and starting their own practices. Quite often, those lawyers are not joining their local bar associations. What to do? One challenge is reaching the new lawyer, and one answer is effectively communicating the value of membership through social media and a state-of-the-art website. The DBA is making strides in both respects. Our President, Susan Solle, and Second Vice President, David Pierce, have taken the lead in expanding the DBA’s social media presence and implementing a process that will result in a new, more user-friendly website. Once we reach new lawyers, the value of membership will be apparent. The following non-exclusive list illustrates my point: • Free legal research with Fastcase. • Reduced cost CLE. • The Legacy Lawyers Program – which connects new lawyers to experienced lawyers who can offer advice on such things as law practice management, problem solving, interacting with the judiciary, etc. • An Evening with the Judges event, at which young lawyers will have an opportunity to interact with judges in a social setting. • The opportunity to network with peers through the Young Lawyers Division. • Numerous networking and learning opportunities through committee involvement, Chancery Club Luncheons, and other events.* • Participation in the Leadership Development Program. The DBA has much to offer new lawyers, and the Board of Trustees is committed to attracting, serving, and retaining them. Holiday Luncheon One of my favorite DBA events is the holiday luncheon held each December. It provides a wonderful opportunity to share good cheer and camaraderie with our fellow lawyers, and to celebrate the Volunteer Lawyers Program and the many members of our legal community who help to carry out its mission. The luncheon does and should make us feel good about who we are and what we do. Kudos to Bill Wheeler and the DBA staff for the 2016 rendition of the event. Much like Dale Creech, who played Christmas music on a grand piano, they hit all the right notes. (For those of you who have not heard Dale play, I encourage you to attend next year’s luncheon. I have already asked that he return!) The keynote speaker was Supreme Court Justice Judith French, who spoke about pro bono services.

*EDITOR'S NOTE: The Chancery Club Luncheons are held in the Old Montgomery Courthouse and are free to DBA Members. These luncheons provide an opportunity for legal professionals from all segments of our legal community to gather together, engage with one another and forge strategic relationships.

By Brian L. Wildermuth Esq. First Vice President Subashi & Wildermuth

Judges, Attorneys, Paralegal and Legal Administrators, seasoned in the profession or new to it, sit together to share and learn from each other. All DBA Members are encouraged to attend. Watch Bar Briefs and the Peek @ the Week for dates of the luncheons. Join for the first luncheon of the new year: The Old Courthouse | February 10, 2017 Doors open at 11:30am Caterer: Franco’s Ristorante Italiano Speaker: Judge Dennis J. Langer Topic: Abraham Lincoln the Lawyer. Judge Langer will cover Lincoln’s 23-year law practice with a focus on several of his most interesting cases.


February 2017 Dayton Bar Briefs



Lisa S. Pierce Esq. & David P. Pierce Esq.


y grandfather on my mother’s side had been a corporate transactions lawyer. He died in the year I was born, and his widow on recurring occasions during her extraordinarily long life expressed to me her firmly held opinions that such lawyers are the true craftsmen of the profession and that trial lawyers are more or less undistinguishable from the cannon fodder sent to the trenches in World War I. In the summer of 1961, I worked as a law clerk in the litigation department of a major New York law firm. My mentors there frequently expressed to me their firmly held opinions that the people in the firm’s corporate law department existed only to create legal problems for trial lawyers to solve. The lawyers who are the subjects of this article are proof that both types of lawyers can be deserving of equal admiration. Lisa Pierce has mastered the craft of the corporate transactions lawyer. Her husband, David, has mastered the trial lawyer’s craft. And, to their credit and to render them deserving of this valentine, they are a perfectly complementary, compatible and admirable couple. Thus, both my grandmother and my New York mentors have been proven inappropriately biased and demonstrably wrong. It takes skilled lawyers in both categories to satisfy the demands of the profession and the needs of the public. Lisa emerged from the University of Cincinnati Law School in 1995 after obtaining her undergraduate degree at Kenyon. She went from law school to employment at Chernesky, Heyman and Kress where she had proven herself as a summer law clerk. She received the blessing of excellent business law mentors in the persons of Ralph Heyman, Ed Kress, Richard Broock and Andy Cherney as well as the skilled input of Fred Caspar on taxation matters. They have remained a strong team for twenty-two years, and their practice transferred without missing a beat when their law firm merged into Dinsmore & Shohl over eight years ago. Her daily work is focused on the creation of well-wrought business deals, mergers and acquisitions, and loophole-free contracts. My grandmother would be proud of her for focusing on the most significant area of legal practice. David was graduated from Vanderbilt in 1990 and from the University of Cincinnati Law School in 1993. He practiced with Bieser, Greer & Landis from 1993 to 1997 when he joined the Coolidge firm where he continues his enviable career as a trial lawyer. Most of his work is focused on commercial disputes and employment issues.


Dayton Bar Briefs February 2017

He has experienced the joy of a trial that lasted five or six weeks, and the greater joy of receiving several arbitration awards in excess of a million dollars. Like Lisa at the Dinsmore firm, he has had the advantage of working with seasoned trial lawyers at the Coolidge firm. My first legal employer would be proud of him for focusing on the most significant area of legal practice. Both Lisa and David are happy to have planted their professional roots in Dayton. In her work Lisa has had occasion to interface with lawyers from major firms in major cities. David has also found experience in arbitration hearings in far-flung settings. That experience has taught them that the quality of Dayton attorneys exceeds that of most of the “big city” lawyers they have encountered. While the practice of law in any of its formats teaches both humility and pride, we are fortunate to have in our legal community solicitors and barristers who can match wits and skills with any foes any arena has to offer. The dedication our valentine couple displays in their professional lives is just a reflection of the dedication they display in their personal lives. Their son, Ben, is a sophomore at Ohio State University, pursuing a business curriculum. Their daughter, Sara, is a junior at Oakwood High School. Lawyer genes are difficult to suppress, and Sara is actively involved in the world of high school debating. Both children have excelled at high school sports. Sara is a field hockey goalie, and Ben was an outstanding lacrosse player and also was part of the Oakwood football team. As proactive parents, David and Lisa were the driving force in transforming lacrosse from a club sport into a recognized school sport at Oakwood High School. Work and raising children should be enough to fill all available hours, but the Pierces have a shared love for theater, music and travel. The whole family has found its way to France, to Germany and to many of the scenic and historic venues in the United States. David has been a trustee of the Human Race Theatre Company, and Lisa is involved in helping the Dayton Philharmonic with the legal issues involved in its Director’s Showcase projects. David is currently serving as a Vice President of the Dayton Bar Association. He also has been for a number of years teaching a course in trial practice at the University of Dayton Law School and has become a frequent speaker at Continuing Legal Education seminars. continued on page 5


BARRISTERS OF THE MONTH: LISA & DAVID PIERCE continued from page 4 Both David and Lisa have been and remain active members of the congregation at Temple Israel and have served their synagogue and its congregation in various capacities. David has recently taken on the major role of President of the Dayton Jewish Federation. He and Lisa have been involved in its programs for years and have donated their legal expertise to the task of solving business issues encountered by the organization. David’s goal as President is to create a community-wide vision to ensure that the Dayton Jewish Community thrives into the distant future. Our Barristers of the Month can laugh about their respective legal roles as a wife who makes sure that her clients never have to go to court and as a husband who thrives on the crises that bring his clients to court. And they can share with us their frustration at the fast-paced technology which demands instantaneous e-mail responses and thereby diminishes the careful meditation and face-to-face interpersonal relationships necessary to solve problems effectively. But, as a couple, they offer a model of dedication to family, professional, community and religion. What better valentine could we wish to have in a world that sorely needs more such models?

By David. C. Greer Esq. DBA Editorial Board Bieser Greer & Landis, LLP www.daybar.org


DBA Lawyer Referral Service Your New Partner

s attorneys, you are familiar with the demands of building a law practice - time constraints, financial pressures and the stress of finding new clients. The Dayton Bar Association recognizes those demands and offers this solution. The Lawyer Referral Service (LRS) to shoulder some of the burden of marketing and screening calls. The LRS receives 10,000 phone calls annually from citizen needing an attorney. If you are solo or small firm attorney the LRS is a valuable source of new business. LRS will advertise its services to the community. Callers are screened and potential clients referred to LRIS panel members. There is a one-time fee for the referral, paid by client. When you collect from this new client for services rendered, you pay a small percentage to LRS. You gain a client and the potential for unlimited repeat business. If you are a member of a medium to large-sized firm, participating in LRS provided the opportunity to build your client., At the same time you supply a vital community service and network with colleagues. By participating in the DBA Lawyer Referral program, you strengthen confidence in the legal system. The Dayton Bar Association LRS is accepting applications for membership for the period of July 1, 2016 through June 30, 2017. A $175 fee and proof of your professional liability insurance policy are all you need to apply for membership as a panel member. If you have any questions on the Referral Service operation, please contact Chris Albrektson at the DBA, 937.222.7902. February 2017 Dayton Bar Briefs




Fast “Lame Duck”

ur local newspaper described the supersized “lame duck” session of the 131st General Assembly as “fast-and-furious,” cramming the passage of 50 bills into six days. Of course, while the Legislature seemingly crams a lot into the final few days of the biennial session, some bills died and will rise from the ashes like a phoenix in the new legislative session which just started. Ironically, one of the bills that died was a bill to do away with lame duck sessions.1 One of the important bills that died in committee was S.B. 165, Medical Orders for Life-Sustaining Treatment (MOLST). Our colleague, Judy LaMusga, has been instrumental in getting the legislation going – it was introduced by local Senator Peggy Lehner. The MOLST legislation was designed to gradually eliminate the current Do-Not-Resuscitate Orders (DNRs). Whether it will become a “phoenix” bill and be re-introduced in the 132nd General Assembly remains to be seen. However, some significant actions were taken that will affect the practice of law in the area of Estate Planning, Trust and Probate Law. The mammoth bill is Amended Substitute H.B. 432. There are some significant changes in estate planning, trust and probate law. This bill was signed by the Governor and is effective April 4, 2017. As if the bill were not big enough, S.B. 358, regarding digital assets, was folded into H.B. 432 during the lame duck session. Here are some the highlights of the legislation, which for conve nience I will refer to as the “Probate Bill.” One of the rights of a surviving spouse is to take two automobiles as non-probate transfers. The lowervalued vehicle is deducted from the allowance for support, currently $40,000. The Probate Bill changes that to allow an un limited number of vehicles, subject to a total amount for the vehicles not to exceed $65,000; however, the subtraction of the lowest-valued vehicle if more than one automobile is selected remains.2


Dayton Bar Briefs February 2017

The Land Sale statute now permits the guardian to sell the ward’s real estate at a public or private sale without filing a lawsuit, if “the ward’s spouse and all persons entitled to the next estate of inheritance from the ward in the real property give written consent to a power of sale….” The sale must be for eighty percent of the appraised value of the real estate and there cannot be virtual representation of a minor to consents to sale under this section. Additionally, a ward’s spouse who is guardian of the estate is authorized to sell to self.3 The Probate Bill adds a new subsection to the Ohio Trust Code to now explicitly provide that an agent under a power of attorney can create a trust for the principal if the power of attorney provides authority to do so, despite the current lack of capacity of the principal or the principal’s lack of an intention to do so.4 Section 1337.42 (A), which was enacted after the Trust Code, already requires an explicit grant of authority to the agent in order to create a trust or make a gift. The new subsection is perhaps unnecessary. If a power of attorney is durable, it clearly permits the creation of a trust despite later incapacity, so long as the document specifically permits creation of a trust. Secondly, the principal’s authorization of the creation of a trust in the power of attorney is indicative of the principal’s intention to create a trust in the future, if the agent deems it necessary. Nevertheless, there was a perceived lack of clarity given the current wording of Section 5804.02 of the Trust Code. The new subsection makes it clear that an agent can create a trust using a power of attorney if the requirements of Section 1337.42 and the Ohio Uniform Power of Attorney Act are met. The agent must also attempt to preserve the principal’s estate plan. A custodian under the Ohio Transfer to Minors Act may designate a successor custodian; however, custodians of real estate must follow the rules for TOD affidavits.5 A will or trust may provide for delayed delivery of custodial property to a minor, up to a specified age not to exceed the age of twenty-five.6 The most significant part of the Probate Bill is the last-minute insertion of the digital

By Edward M. Smith Esq. Chair: Estate Planning Committee Nolan Sprowl & Smith assets bill into it. The digital assets portion of the Probate Bill, among other things, authorizes an agent appointed under a power of attorney that grants general authority related to digital assets to access digital assets as an “authorized user” and to access content. Section 1337.571 was designed to accommodate the “check-the-box” form, which I highly discourage using. Instead, I recommend spelling out exactly what the section authorizes so the principal will know, from continued on page 7

save the date!

2017 Probate Law Institute

Friday, March 10, 2017 Sinclair Community College, Building 12 Stay tuned for more details for this event!

ENDNOTES: Dayton Daily News, Dec. 29, 2016. R.C. Section 2106.18. 3 See new R.C. Section 2127.012. 4 R.C. Section 5804.02 (F). 5 R.C. Section 5814.06 (E). 6 R.C. Section 5814.09. 1 2


ESTATE PLANNING: Fast "Lame Duck" continued from page 6

the document you prepare, exactly what authority he or she is granting. The principal is authorizing the agent to do all of the following by granting general authority with respect to digital assets under R. C. Section 1337.571: (A) Have access to any catalogue of electronic communications sent or received by the principal; (B) Have access to any other digital asset in which the principal has a right or interest; (C) Have the right to access any of the principal’s tangible personal property capable of receiving, storing, processing, or sending a digital asset; (D) Take any action concerning the asset to the extent of the account holder’s authority; (E) Have access to the content of electronic communications sent or received by the principal. The Probate Bill also enacts new Chapter 2137, the Revised Uniform Fiduciary Access to Digital Assets Act. As the name suggests, it sets forth the conditions under which trustees, guardians, executors and administrators are authorized to have access to digital assets and contents, and the Act sets forth the procedures for gaining access. This Act is lengthy and complicated and we plan to have a presentation on this important legislation at the annual Estate Planning, Trust and Probate Law Institute on March 10th. My impression is that this legislation will foster a good bit of litigation by fiduciaries and push-back from service providers under terms-of-service agreements. It may or may not be a panacea to facilitate meaningful access to digital assets of a principal, ward or decedent. But, at least it is a start. We are grateful for the presenters at our monthly meetings, normally held on the first Wednesday of each month at 4:00 p.m. at the DBA Seminar Room. Please join us. Thanks to Sam Hemmeter, CPA, who gave us the traditional annual update of federal personal income, fiduciary income and estate tax law at the committee meeting held on January 11, 2017. His involvement and professional courtesy to the law profession is appreciated. The Annual EPTPL Institute will be held on March 10, 2017 at Sinclair. We will again have a great agenda, with a total of six hours of CLE. The Montgomery County Probate Court will be presenting on e-filing www.daybar.org

R.L. EMMONS AND ASSOCIATES, INC. of civil cases, among other topics. You are encouraged to bring your laptop. Judge Jack Puffenberger, Lucas County Probate Judge, will give the annual case law presentation. We will have a presentation on ethics. The passage of the Revised Uniform Digital Assets Act in Ohio marks a new era of definition for estate planning, along with potential pitfalls and litigation, as the concerns for privacy compete with the duties of fiduciaries to heirs and beneficiaries. We look forward to seeing you and to your resolution to become more involved this year with the Dayton Bar Association. We truly appreciate all those who attend committee meetings. All DBA members are welcome, so don’t be a stranger.

842–A E. Franklin Street Dayton, Ohio 45459

Professional Investigative and Legal Support Services Firm  Polygraph  Asset Searches  Criminal Defense  Process Service  Witness Locates / Interviews  Surveillance  Civil Case Prep  General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

February 2017 Dayton Bar Briefs



Foreclosure, Title Reform: Beginning to Address Needed Updates to Real Property Law in Ohio By Sam G. Brinker Esq. Chair: Real Property Committee Dinsmore & Shohl, LLP


our recent bills (three originating from the Ohio House and one from the Ohio Senate) recently set out changes and, in some cases, long-awaited updates to the real property law in Ohio. While most of the changes specifically target foreclosure law, the bills certainly do not en there. With Ohio consistently ranking in the top ten for the highest number of foreclosures since the 2008 Housing Market Crash (by many accounts over the years), and considering the drastic impacts that crash had on the residential real estate market (especially considering the effects the crisis had on exacerbating blight), something had to be done to update the law concerning foreclosures in Ohio. See, e.g. Dunn, Laura, The 10 states with the highest foreclosure rates in July, BANKRATE (August 12, 2016); 10 states with the most homes in foreclosure, MARKETWATCH.COM ( January 18, 2013); Harress, Christopher, The American Nightmare: Ten Worst States for Foreclosure, INTERNATIONAL BUSINESS TIMES (September 25, 2013). Fast forward to September 28, 2016, the date when (most of ) the provisions of Ohio House Bill 390 (“HB 390”) became effective. See 2015 Bill Text OH H.B. 390. Legislation more than three years in the making finally passed in 2016 to reform the foreclosure law in the state, with respect to both residential and commercial real estate. Id. HB 390 attempts to provide the State of Ohio and its citizens with tools to handle a multitude of issues presented by the foreclosure process. Representative Jonathan Dever for the 28th District of Ohio recently spoke at the December CLE Round-Up at the Dayton Bar Association, Real Property Committee CLE as to what tools were implemented in the legislative text and what tools are still being tinkered with in other bills. Jonathan Dever, Real Property Law CLE: House Bill 390: Revamping Ohio’s Foreclosure Processes, DAYTON BAR ASSOCIATION, (December 14, 8

Dayton Bar Briefs February 2017

2016). Ultimately, with respect to foreclosure processes in Ohio, HB 390 does eight major things: (1) expedites the foreclosure process for “vacant and abandoned” residential property; (2) provides for the use of Private Selling Officers and remote bidding (for both residential and commercial property); (3) provides for online auctions and progression toward an online system within five years of the enactment of the bill; (4) provides that real estate taxes are to be paid from sale proceeds; (5) establishes who is entitled to enforce a lost note; (6) allows for the recording of confirmation to transfer title in lieu of a sheriff ’s deed if the deed is not timely filed; (7) implements a procedure for selling property that does not garner twothirds of its appraised value at sale; and (8) creates a right for the prosecutor to move for sale if the property is not sold or the sale is not underway within twelve months of the decree. 2015 Bill Text OH H.B. 390; OHIO REV.

CODE ANN. §§ 323.47; 1303.38; 2308.01-.04; 2327.01; 2329.01; 2329.071; 2329.151-.154; 2329.18-.21; 2329.26; 2329.31; 2329.311; 2329.52; 5302.31 & 5721.371-.373. That is not to say the bill ends there in its changes. Those eight mentioned above are what several practitioners point to as the sweeping or major changes that are derived from the bill, however. See, e.g. Brenda K. Bowers, Client Alert: Foreclosure Reform in Ohio is Here – Expediting, Modernizing, and Unifying the Foreclosure Process and Battling Community Blight, VORYS, SATER, SEYMOUR AND PEASE LLP (September 27, 2016); Joseph E. Lenhert & Geoffrey G. Leder, Ohio Foreclosure Reform Brings Standardization and Modernization continued on page 9

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r 35 y and L Grants torneys Unde To At red By : ommittee e t s i n i Adm isory C n v d A t s y Tru ciatio r o a s s b n A e r The Eik he Dayton Ba of t A office B D e h tt on Contac tion Informati lica for App 222-7902



REAL PROPERTY: Foreclosure, Title Reform continued from page 8

to County Foreclosure Processes and Paves the Way for the Expedited Foreclosure of Vacant and Abandoned Residential Properties, KEATING, MUETHING & KLEKAMP PLL (September 28, 2016); Tyson A. Crist, Changes to Ohio Foreclosure Law Under House Bill 390, ICE MILLER LLP (October 4, 2016). The 131st General Assembly also managed to implement the D.O.L.L.A.R. Deed Program by passing Ohio House Bill 303 (“HB 303”). Also effective September 28, 2016, the “Deed Over, Lender Leaseback, Agreed Refinance” program provides an option whereby homeowners can stay in their homes and avoid foreclosure by entering into an agreement with the lender and becoming a tenant. 2015 Bill Text OH H.B. 303. If a borrower applies for the D.O.L.L.A.R. Deed Program and the lender approves the application, then the parties shall execute: (i) a deed in lieu of foreclosure transferring borrower’s right, title and interest in the real property to the lender; (ii) a notarized estoppel affirming, among other things, that: (x) “the mortgage and title to the property are not merged” by


virtue of the deed; and (y) “lender retains its lien position and its right to foreclose on any junior lienholders after the transfer”; and (iii) a lease with an option to purchase setting forth the statutorily required length of the lease and rent due under the lease. OHIO REV. CODE ANN. § 5315.04; H.B. 303. Even more recently passed by both chambers was Ohio House Bill 463 (“HB 463”). See 2015 Bill Text OH H.B. 463. HB 463 amends O.R.C. §1349.21 to prohibit an escrow or closing agent, within an escrow transaction, from knowingly making disbursement from an escrow account on behalf of another person unless certain conditions are met, as provided therein. Id. Further, HB 463 (via O.R.C. §2308.031) bans the use of plywood in boarding up a property that is deemed vacant and abandoned in order to secure and preserve the property. Id. The purpose of this “plywood provision” is to: (i) make these buildings safer when inspected or when police or emergency personnel must attend to a situation at such a property, and (ii) help keep water and other damaging elements out by using material other

than plywood, which might deteriorate at a slower rate. Dever, supra paragraph 3. This can be accomplished, for example, by using a clear material that is bulletproof/waterproof in lieu of the plywood. Id. Additionally, HB 463 makes further revisions to some of the HB 390 subject matter. H.B. 463. Finally, foreclosure law was not the only area of real property law to get a facelift. As part of Ohio Senate Bill 257, the legislature revised Ohio’s curative title statute. These revisions, in part, create a rebuttable presumption of validity for recorded real property instruments and reduce the time period for curing certain defects related to those instruments. 2015 Bill Text OH S.B. 257; OHIO REV. CODE ANN. § 5301.07. It remains to be seen if even more changes are coming down the pike anytime soon, but Ohio’s legislature has certainly been busy recently in updating.

February 2017 Dayton Bar Briefs



The Chancery Club


Topic: Abraham Lincoln the Lawyer. Judge Langer will cover Lincoln’s 23-year law practice with a focus on several of his most interesting cases. RSVP: Seating is LIMITED, please RSVP to Chris calbrektson@daybar.org 937.222.7902

Join us at our first Luncheon of the New Year! The Old Courthouse Friday, February 10, 2017 Doors open at 11:30am Caterer: Franco’s Ristorante Italiano Speaker: Judge Dennis J. Langer

The DBA wishes to thank the Eichelberger Foundation for their generosity in sponsoring these luncheons.


Dayton Bar Briefs February 2017



Paralegal Day Celebration Wednesday, April 12th 11:30-1:00pm Sinclair College, Bldg 7 (Tartan Marketplace)

Hosted by:

Sinclair Community College Paralegal Program with additional sponsorships from the legal community. Please join your colleagues in the legal community, including judges, attorneys, paralegals, and support staff, as we recognize paralegal contributions to the legal profession.

Individual tickets:

$15.00 per person, incl. lunch and parking pass

Return nominations and reservations:

Sinclair Community College Paralegal Program 444 West Third St., Rm 5141 Dayton, OH 45402

Checks payable to:

Sinclair Foundation Paralegal Day


(937) 512-2616 or paralegal@sinclair.edu

Thank you for your participation and we look forward to seeing you and your paralegal staff at this event!

Paralegal Day Celebration Program 11:30–12:00pm Registration and Silent Auction 12:00–1:00pm Program

Please join us to see the next Paralegal of the Year award be presented. The celebration will include a key note speech regarding the Paralegal profession as well as a silent auction with proceeds benefiting Sinclair Paralegal Scholarships. To nominate an outstanding Paralegal on your staff, please go to the below link to find the nomination form:



We hope you will continue to be, or will become, a sponsor of this exciting event: SILVER - $75 Your firm's name in the program as Silver Sponsor, (2) tickets and parking passes to the event ($45 tax deductible)

GOLD - $150

Your firm’s name in the program, as Gold Sponsor, (5) tickets and parking passes to the event ($75 tax deductible)


Your firm’s name in the program as Platinum Sponsor, (10) tickets and parking passes to the event ($100 tax deductible)



February 2017 Dayton Bar Briefs


daybar.org/cle DBA Appellate Practice Committee presents:

Preserving the Record for Appeal

Wed. February 8, 2017 • Noon-1:00pm 1.0 CLE Hour • Seminar #1617-084 M $35 | NM $45 | PP $0 *Special Committee Member Price $25 Presented by: Hon. Richard Skelton, Montgomery Cty Common Pleas Ct Judge Skelton will speak on preserving the record for appeal. An experience trial attorney, Judge Skelton will discuss techniques he used to preserve the record for appeal in both criminal and civil cases, as well as observations from his time on the Bench on what attorneys can do to ensure their issues for appeal make it to the record for the appellate court.

DBA Workers Compensation and Social Security Committee presents:

Professionalism in the Trenches: Attorney Ethics and Advertising

Thurs. February 16, 2017 • Noon-1:00pm 1.0 CLE Hour • Seminar #1617-086 M $35 | NM $45 | PP $0 *Special Committee Member Price $25 Presented by: Gary J. Leppla, Esq. Leppla Associates, Ltd.

Professional Conduct: The Top 10 Ethics Mistakes (video replay)

Tues. February 21, 2017 • 1:00-4:15pm 3.0 CLE Hours Professional Conduct • Seminar#1617-089 M $105 | NM $150 | PP $0 Presented by: John Ruffolo Esq., DBA Bar Counsel Marc Tuss Esq. Denise Platfoot-Lacey, Assoc. Prof. of Externships, UDSL During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences. The Rules and Example cases will be provided to all attendees.

Judge Langer’s 2016 Criminal Law Update Seminar (video replay) Thurs. February 23, 2017 • 8:45-12:00pm 3.0 CLE Hours • Seminar #1617-087 M $105 | NM $150 | PP $0 Presented by: Judge Dennis J. Langer, Montgomery Cty Common Pleas Ct Judge Langer will survey US and Ohio Supreme Court and appellate decisions, as well as recently enacted legislation. Topics Include: Search and seizure, confessions, pretrial identification, substantive criminal law, rules of evidence, trial procedure, sentencing, and revocation hearings. Also, statutes regarding driver's license suspension for drug offenses, judicial release, and juvenile adjudications not counting as “convictions.”

House Bill 390: Revamping Ohio’s Foreclosure Process (video replay)

Tues. February 28, 2017 • 1:00-4:15pm 3.0 CLE Hours Professional Conduct • Seminar#1617-090 M $105 | NM $150 | PP $0 Presented by: Tyson Crist Esq., Partner, Ice Miller's Bankruptcy & Financial Restructuring Group Jonathan Dever, Ohio State Representative Brandon C. Hedrick, Shareholder at Hedrick & Jordan Co., LPA Sam G. Brinker Esq., Dinsmore & Shohl, LLP What Attorneys Will Learn: - The major changes to the area of foreclosure law in Ohio that took effect September 28, 2016 as a result of the passage of House Bill 390; - The legislative background and reason for passing House Bill 390; - How these changes modify certain procedures in the practice of real property law; - The distinctions between commercial real estate changes and residential real estate changes Agenda: 1:00-2:15pm Introduction/Major Changes Highlight the major changes to the area of foreclosure law in Ohio as a result of the passage of House Bill 390; the distinctions between commercial real estate changes and residential real estate changes. 2:15-2:30pm Break 2:30-3:30pm Legislative Discussion The legislative background and reason for passing House Bill 390 as well as the details of the process and considerations undertaken. 3:30-4:15pm Panel Discussion Answering attendee questions, continuing the discussion of the previous portions of the program as a dialogue between the speakers and attendees.

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Dayton Bar Briefs February 2017

2017 Probate Law Institute

Friday, March 10, 2017 Sinclair Community College, Building 12

2017 Diversity Day

Friday, April 7, 2017 Sinclair Community College, Building 12


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February 2017 Dayton Bar Briefs



Sweatt v. Painter: One of Thurgood Marshall’s Greatest Gifts to Lawyers of Color A A Thurgood Marshall 1967 White House Oval Office

sk almost any school-aged child who Thurgood Marshall is and they’ll be sure to tell you that he’s the attorney for the plaintiff in Brown v. Board of Education—the case that led to the abolishment of the doctrine of “separate but equal” and led to the desegregation of America’s public school system.1 However, before Marshall’s arguments changed the landscape of the public school system, they changed the landscape of America’s legal education system, and, in turn, the legal industry. In 1946, after his denial of admission to the University of Texas Law School, Marshall and his team agreed to represent Herman Marion Sweatt in his suit against the school.2 Sweatt, who had earned an undergraduate degree and worked in various professions prior to applying to law school, was denied admission solely because he was black.3 Marshall and his team argued that denying Sweatt admission to the University of Texas Law School violated the equal protection clause of the Fourteenth Amendment because the state of Texas did not have any black law schools at the time of his application.4 The Texas state courts agreed with Marshall’s team.5 They recognized that denying Sweatt an opportunity to obtain a legal education while granting the same opportunity to white students did indeed deprive him of his constitutional right to equal protection under the law.6 But instead of ordering that Sweatt be permitted to attend the University of Texas Law School, the state courts granted Texas six months to create a “separate but equal” law school for black students.7 continued on page 25


Dayton Bar Briefs February 2017

By Jamar T. King Esq. DBA Editorial Board Montgomery Cty Public Defender's Ofc

ENDNOTES: Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98


L. Ed. 873 (1954).

Richard Allen Burns, Sweatt, Herman Marion, Handbook


of Texas Online, http://www.tsha online.org/handbook/ online/articles/fsw23 (last accessed on Jan. 1, 2017).



Sweatt, 339 U.S. at 631-32.


Sweatt, 339 U.S. at 632.


Sweatt, 339 U.S. at 632.


Sweatt, 339 U.S. at 632.


*The following list is current as of December 1, 2016. ?s about Your Firms Status - Contact Chris


February 2017 Dayton Bar Briefs



Judge Langer’s Criminal Law Top Ten List



ach year I have the pleasure of conducting an end-of-the-year criminal law update at the Dayton Bar Association. The seminar is a survey of major cases from the U.S. Supreme Court, Ohio Supreme Court and Appellate Courts, as well as a discussion of the changes in criminal statutes. Here is my admittedly arbitrary Top 10 list for 2016: 1. A prior juvenile adjudication that enhances the degree of, or sentence for, a subsequent offense committed as an adult violates Due Process: Judge Donovan’s dissent prevails. The persuasive power and importance of a strong dissent in an appellate decision was demonstrated by Judge Mary Donovan in State v. Hand, 2014-Ohio-3838 - a case I handled at the trial level. Under Ohio law, an adult defendant, convicted of a first- or second-degree felony, receives a mandatory prison sentence if he or she has a prior “conviction” for a first- or second-degree felony. Adrian Hand pled no contest to aggravated burglary, aggravated robbery and kidnapping – all felonies of the first-degree. Because R.C. 2901.08(A) provides that a prior juvenile adjudication is to be considered a “conviction” that enhances the degree or sentence of a subsequent offense committed as an adult – and because Hand had a prior juvenile adjudication for aggravated robbery - I imposed a mandatory 3-year prison term. The Second Appellate District affirmed the mandatory prison sentence. However, Judge Donovan delivered an impressively researched dissent that explored the origin and role of the juvenile justice system. “From the beginning,” she wrote, “juvenile proceedings were not considered adversarial” and “the state acted as parens patriae for the juveniles.” She emphasized that “juvenile court proceedings are civil actions; that juveniles are ‘adjudicated delinquent’ rather than found ‘guilty.’” She noted the United States Supreme Court has denied juveniles the right to jury trials. “In my view,” Judge Donovan concluded, “equating Hand's juvenile adjudication with an adult conviction ignores the fact that Ohio has developed a system for juveniles that assumes that children are not as culpable for their acts as adults” - in violation of the Federal and State Due Process Clauses. In a 4-to-3 decision in State v. Hand, 2016-Ohio-5504, the Ohio Supreme Court reversed the Second District and, in doing so, reiterated much of Judge Donovan’s analysis. Justice Lanzinger, writing for the majority, made particular note of Judge Donovan’s review of “a significant number of law review articles which question on due process grounds whether juvenile court adjudications should be considered the equivalent of criminal convictions for purposes of sentence enhancement statutes.” Justice Lanzinger concluded, “Because a juvenile adjudication is not established through a procedure that provides the right to a jury trial, it cannot be used to increase a sentence beyond a statutory maximum or mandatory minimum under Apprendi v. New Jersey.” And so, Judge Donovan’s powerful dissent ended up becoming the law of Ohio. 2. The statutory presumption that a recorded confession is voluntary violates a juvenile’s due process right


Dayton Bar Briefs February 2017

By Hon. Dennis J. Langer Montgomery Cty Common Pleas Court

R.C. 2933.81(B) requires law enforcement to record the statement of a person suspected of committing certain homicide and felony sex offenses. While the failure to record itself will not result in the suppression of the statement, if the statement is recorded, then there is a statutory presumption that the statement was voluntary. As applied to juvenile defendants, the Ohio Supreme Court ruled in State v. Barker, 2016-Ohio-2708, this statute violates due process. It impermissibly eliminates the state’s burden of proving the voluntariness of a custodial statement and, instead, places the burden on the juvenile defendant to prove that the statement was involuntary. 3.The warrantless taking of a blood sample from an OVI arrestee is unconstitutional. In Birchfield v. North Dakota, 195 L.Ed.2d 560 ( June 23, 2016), the United States Supreme Court held that the search-incidentto-arrest doctrine applies to breath and blood tests incident to OVI arrests. The Court held that the Fourth Amendment permits warrantless breath tests incident to lawful arrests for drunken driving, because the impact of breath tests on privacy is slight, and the need for these tests is great as a law enforcement tool to combat drunken drivers. However, blood tests are another matter. They are significantly more intrusive in that they entail the “piercing of the skin,” the extraction of part of the body, and the conveyance to the government of an enormous amount of information in the form of DNA, which can be a source of anxiety to the arrestee. Thus, the United States Supreme Court ruled that in the absence of exigent circumstances, the search-incident-to-arrest doctrine does not justify the warrantless taking of a blood sample and violates the Fourth Amendment. It then follows that while a state can impose criminal penalties for the refusal to submit to a breath test, it cannot do so for the refusal to submit to a blood test. As a result, R.C. 4511.19(A)(2), which renders it a crime to refuse to submit to OVI chemical tests, is unconstitutional as it relates to blood tests. 4. An unlawful police stop and the discovery of a valid arrest warrant: evidence found incident to the arrest is not suppressed under the “Attenuation Doctrine.” One of the exceptions to the exclusionary rule is the “Attenuation Doctrine.” Under this Doctrine, if the connection between unlawful police conduct and the discovery of evidence is remote or has been interrupted by an intervening circumstance, then the evidence will not be suppressed. The “Attenuation Doctrine” was applied by the United States Supreme Court in Utah v. Strieff, 136 S. Ct. 2056. It ruled that when a police officer, who makes an unconstitutional investigatory stop, learns that there is valid warrant for the arrest of the suspect, the officer may arrest the suspect, and any incriminating evidence found during a search incident to that arrest will not be suppressed. continued on page 17


FROM THE JUDGES DESK: Criminal Law Top 10 List continued from page 16

The evidence is admissible because the officer’s discovery of the arrest warrant “attenuates” - or breaks - the connection between the unlawful stop and the evidence seized incident to arrest. Justice Clarence Thomas, writing for the majority, cautioned that if there is “flagrant” or purposeful – and not merely negligent - police misconduct or the unlawful stop was part of systemic or recurrent police misconduct, then the “Attenuation Doctrine” will not apply and the evidence will be suppressed. 5. A new test for the admissibility of evidence discovered as result of a drug dog sniff of a stopped car. A common fact pattern: The driver of a car is lawfully stopped for a traffic violation. While the police officer is processing the issuance of a citation, a drug dog is brought to the scene. The K-9 handler walks the sniffing dog around the car; the dog “alerts” on the car; drugs are found in the car, and the driver is arrested for possession of drugs. Will the drug evidence be suppressed? The Second Appellate District has held that as long as the dog sniff occurred within the time reasonably required for the issuance of a traffic citation, the officer needn’t have reasonable suspicion that a vehicle contains contraband to justify the dog sniff, and the drug evidence will not be suppressed. The United States Supreme Court, in Rodriguez v. United States, 135 S. Ct. 1609 (2015), has set forth a new test: The “critical question as to whether a dog sniff during a traffic stop violates the Fourth Amendment, is not whether the dog sniff occurs before or after the officer issues the warning or ticket, but rather whether conducting the sniff adds time to the stop.” Thus, even if a drug dog sniff occurs within the time reasonably required to issue a traffic citation, if it added time to the stop, the evidence will be suppressed, unless there was reasonable suspicion that the vehicle contained contraband, thereby justifying the dog sniff. 6. The test to determine whether pre-indictment delay violates Due Process. Statutes of limitations set forth the ultimate time limit within which the government must prosecute a defendant, beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced. But an unjustifiable preindictment delay within the statute of limitations also can violate Due Process. In State v. Jones, 2016-Ohio-5105 ( July 27, 2016), the Ohio Supreme Court reiterated the two-step, burden-shifting framework for analyzing a due-process claim based on preindictment delay: STEP 1: The defendant must present evidence of actual prejudice. • Speculative prejudice does not satisfy the defendant’s burden. The possibility that memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient to establish actual prejudice. • The proven unavailability of specific evidence or testimony that would attack the credibility or weight of the state’s evidence against a defendant, and thereby aid in establishing a defense, may satisfy the due-process requirement of actual prejudice. • The death of a witness can constitute prejudice if the defendant can identify exculpatory evidence that was lost and show that the exculpatory evidence could not be obtained by other means. • A defendant may establish actual prejudice where he or she is www.daybar.org

unable to seek verification of his or her story from a deceased witness. A defendant need not know what the exact substance of an unavailable witness’s testimony would have been in order to establish actual prejudice based on the witness’s unavailability. Actual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state’s evidence and bolster the defense. STEP 2: If the defendant establishes actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay. 7. A speedy trial waiver does not apply to later-added charges. The “speedy trial clock” for the later-added charges may start to run when the original charges were filed. Penalty enhancements are not “offenses” and are not subject to dismissal for violation of the right to speedy trial. In State v. Reeves, 2016-Ohio-5540, the Second Appellate District made clear that when a defendant waives the right to a speedy trial as to initial charges (for instance, at the preliminary hearing level in municipal court), the waiver is not applicable to later-added charges (for instance, at grand jury) arising from the same set of circumstances. Furthermore, when the new and additional charges arise from the same facts as did the original charges - and the state knew of such facts at the time of the initial complaint - the “speedy trial clock” began to run not when the new charges were added, but further back in time to when the original charges were filed. As a result, the later-added charges in Reeves were dismissed by the Second District because of the expiration of the “speedy trial clock.” Finally, the Second District made clear that “penalty enhancements” – such as repeat violent offender or firearm specifications - can be added in an indictment without any concern, because they are not “offenses.” Thus, they are not subject to dismissal for violation of the defendant’s right to speedy trial. 8. In ruling on a Batson challenge to the prosecutor’s use of a peremptory challenge to strike an African American from the jury panel, the trial court must consider not only the prosecutor’s race neutral explanation, it must also consider all the circumstantial evidence in determining whether there was purposeful discrimination. Thirty years ago, Timothy Foster was convicted of capital murder and was sentenced to death in a Georgia court. During jury selection, the prosecutor used peremptory challenges to strike all four African American prospective jurors. Because the prosecutor offered race neutral explanations, the Court overruled the defendant’s Batson challenges. On direct appeal, the Georgia Supreme Court upheld the conviction and death sentence. Foster renewed his Batson challenge in a state habeas corpus proceeding. Through the Georgia Open Records Act, Foster obtained copies of the prosecutor’s trial file. Included in the file was a jury venire list on which the names of all African American prospective jurors were highlighted in bright green with the letter “N” (for “no”). The state habeas court denied relief. The United States Supreme Court reversed and remanded the case for a new trial – 30 years after the original trial. Foster v. Chatman, 136 S. Ct. 1737 (2016). Writing for the majority, Chief Justice John Roberts concluded that with regard to two of the African American prospective jurors: “Notwithstanding the race-neutral basis offered by the prosecution, the circumstantial evidence clearly establishes there was purposeful discrimination. . . Two peremptory strikes on the basis of race are two more than the Constitution allows.” continued on page 21

February 2017 Dayton Bar Briefs



The Charitable Giving Discussion

By Diane B. Brunn Esq. Partner, Personel & Succession Planning, Thompson Hine LLP


ver the years that I’ve practiced law and served in the trust administration industry, I’ve learned there isn’t a one-sizefits-all method to working with clients on their estate-planning needs. Each client has a different set of interests and objectives, as well as financial situations. These may include children or grandchildren, a family-owned business or other property, all of which needs to be considered when drafting an estate plan. While some clients have well-thought-out intentions, others may only have a vague idea about what they want to do with their assets or what to leave to their heirs. In either case, I find it important to ask questions to better determine what matters most to my clients and what other avenues might be helpful in furthering their personal and estate-planning goals. Introducing the subject of charity during these discussions can be most effective and welcomed, as well. Clients may not have previously considered incorporating a charitable component to their estate plan or may not have known of the various charitable gift options available. Engaging in a conversation about this topic can enrich and deepen the advisorclient relationship, and perhaps even lead to establishing new relationships with the client’s family and friends. If, on the other hand, clients are not interested in charitable planning, they typically indicate their appreciation of the idea and then move on to planning concepts that better suit their individual situations. A number of studies have been published over the years indicating a disconnect between advisors and clients about the initiation of philanthropic discussions. In 2013, the U.S. Trust partnered with The Philanthropic Institute on a nationwide study that showed clients feel their advisors bring up the subject of charitable planning only 17 percent of the time, yet 88 percent of advisors believe this is an important topic to discuss. More important than who initiates the philanthropic conversation, clients want it to be had in a meaningful way and within the first several, if not the first,


Dayton Bar Briefs February 2017

meeting with their advisors. Clients expect their advisors to be knowledgeable about tax and financial planning and look to us to raise the necessary questions so that no stone is left unturned when creating their plan. By asking a few initial questions about a client’s charitable interests, including previous giving patterns, and whether they want to involve the next generation in their charitable activities, advisors can be more prepared to effectively assist their clients. We owe it to our clients to help them understand that there are options available to them, and The Dayton Foundation can be an excellent partner in this.

The Dayton Foundation as a Charitable Resource

The Dayton Foundation, as the region’s community foundation, has a wealth of resources and knowledge about charitable gifting and the nonprofit community to assist advisors and their clients. Their highly specialized staff can help an advisor add value by being an extension of the services provided to clients. For me, that means I don’t have to be an expert in the charitable fund and gift options available, but I can call or visit the Foundation’s staff and get the information I need. The Dayton Foundation can help identify the right type of gift to match a client’s charitable giving interests and goals. The Foundation offers a wide range of permanent charitable funds, including unrestricted and lightly restricted endowments, advised funds, scholarships and funds designated for a client’s favorite charities. They also have the capability to administer charitable life income plans and other types of deferred gifts, including bequests and life insurance gifts, as well as support annual giving through their Charitable Checking AccountSM Service. For many clients, creating a deferred charitable fund through an estate plan is a new adventure that often can be intimidating. To help alleviate their uncertainty, I encourage them to establish a fund through the Foun-

dation now and advise grants during their lifetime so they can get a better understanding of how both The Dayton Foundation and the fund work. With advanced planning and experience, clients are more likely to enjoy a deeper sense of satisfaction, pride and even accomplishment in knowing their generous donations are helping the causes and organizations they care about most. Additionally, for clients with children or grandchildren, I recommend they use their charitable fund to involve family in distributing grants as a way to educate and inspire their future giving interests. Many clients feel that involving their family in the administration of their charitable funds leaves a legacy that is much more valuable than leaving a direct bequest to their family members.

In Conclusion

Introducing the concept of charitable giving is a tremendous opportunity to educate them about the different ways to give in the community. Estate planning attorneys, wealth advisors, accountants and their clients all benefit from the charitable planning discussion. As an attorney who specializes in estate and succession planning, I depend upon the expert advice of organizations like The Dayton Foundation to help me better help my clients. I also know that clients who have funds with the Foundation can be assured of good fund management and the knowledge that their wishes and family legacy will be followed for generations to come. ______________ Diane B. Brunn is a Partner in the Personal & Succession Planning group in the Dayton and Cincinnati offices of Thompson Hine, LLP. Her practice focuses on estate planning and administration, business succession planning and fiduciary litigation. She counsels individuals, families and businesses in a wide range of personal, charitable, business and succession planning matters.



Great Seats! Great Prices! Great Shows! VTA Family Rolling Workshops

Part of the Morris Furniture Co. Family Series February 25; April 8 & 22 @ 2:15pm Victoria Theatre

Company Exclusive Offers

Steep Canyon Rangers

Part of the Projects Unlimited Star Attraction Series February 4 @ 8:00pm Victoria Theatre

The Naked Musicians

Part of the Projects Unlimited Star Attraction Series February 17 @ 8:00pm Victoria Theatre


Part of the Projects Unlimited Star Attraction Series February 18 @ 8:00PM Victoria Theatre

Pinkalicious the Muscial

Part of the Morris Furniture Co. Family Series February 25 @ 1:00 & 4:00PM Victoria Theatre

Pink Martini

Part of the Projects Unlimited Star Attraction Series March 3 @ 8:00PM Mead Theatre Schuster

Steve Winter: On the Trail of Big Cats Part of the National Geographic Live Series March 6 @ 7:00PM Victoria Theatre

Have ?s Contact: Betty Gould Group Sales Manager Victoria Theatre Association Betty.gould@victoriatheatre.com 937.461.8295

visit www.daybar.org for more shows

Dirthy Dancing

Part of the Premier Health Broadway Series March 14 - 17 @ 8:00pm; March 18 @ 2:00pm & 8:00pm; March 19 @ 2:00pm & 7:30pm Mead Theatre Schuster

RIVERDANCE - The 20th Anniversary World Tour March 28 @ 7:30 pm Mead Theatre Schuster

Dogfight the Muscial

Presented by Dare to Defy Productions March 31 @ 8:00pm Mahtile Theatre Schuster

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February 2017 Dayton Bar Briefs


when clients & colleagues come looking...

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Information update forms will be sent soon have you advised us of any changes? The Directory includes: Name, Photo, Firm/Office, Address, Phone, Fax, Email Address and Supreme Court Number for all Judges, Magistrates and Attorneys, Paralegals and Legal Administrators in our database.

2018 DBA Pictorial Legal Directory Preparation Underway!

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Dayton Bar Briefs February 2017

Take advantage of the following opportunities to have your photo taken professionally, at the DBA, by Julie Noeth of Walling Photography and to make sure your DBA photo for the upcoming Legal Directory is current.

Contact Lori to set up your session at 937.222.7902 or lluebben@daybar.org:

- March 27th Monday 7:30-5:00pm - March 28th Tuesday 7:30-2:00pm - March 29th Wednesday 11:00-4:45pm


FROM THE JUDGES DESK: Criminal Law Top 10 List continued from page 17

Importantly, Foster v. Chatman holds that in determining whether a prosecutor’s peremptory strike was “motivated in substantial part by discriminatory intent,” the trial court must consider not only the prosecutor’s race neutral explanation, it must consider all of the circumstantial evidence that bears upon the issue of racial animosity. Notably, Chief Justice Roberts added: “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack panelist who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 9. The standard for appellate review of a sentence. How easy or difficult is it to persuade an appellate court to modify or vacate a sentence? There had been disagreement among the appellate districts that was finally resolved by the Ohio Supreme Court in State v. Marcum, 2016-Ohio-1002. The Supreme Court held that an appellate court may not utilize an easy abuse-of-discretion standard to review sentencing challenges. An appellate court is not to substitute its judgment for that of the trial court. Rather, an appellate court must use the extremely deferential standard set forth in R.C. 2953.08(G)(2). Under this statute, an appellate court may modify or vacate a sentence only if it finds by clear and convincing evidence either: • the record does support applicable sentencing court’s findings required in R.C. 2953.08(G)(2)(a) OR • the sentence is otherwise contrary to law.


10. Immunity from arrest, prosecution and conviction for minor drug possession. Recently enacted legislation - R.C. 2925.01(EE) and R.C. 2925.11(B)(2)(a) &(b) – grants immunity from arrest, prosecution and conviction with regard to misdemeanor and fifth-degree felony drug possession. There are five requirements to qualify for this immunity: First, the drug evidence was obtained as a result of: • the defendant acting in good faith seeking medical aid for an other who is experiencing a drug overdose, or • the defendant was experiencing a drug overdose and was seeking medical aid for himself for that overdose, or • defendant is the person for whom another is seeking or obtaining medical aid for an overdose. Second, the defendant must not be on community control sanctions (probation) or under post release control supervision by the Parole Authority. Third, within 30 days of the overdose, the defendant must seek and obtain a screening and receive a referral for treatment. Fourth, upon the request of the prosecutor, the defendant must submit documentation verifying that the requirements of this law have been satisfied. Fifth, immunity cannot be granted more than two times.

February 2017 Dayton Bar Briefs



Welcome New Members! The Dayton Bar Association welcomes the following new members... Contact Chris with any DBA Membership related questions calbrektson@daybar.org 937.222.7902


CHAPPARS, Alexander T. **

Chappars Law Office Admitted to Ohio Bar: 11/15


Dayton Bar Briefs February 2017

PALEY, Joseph

McNamee & McNamee, PLL Admitted to Ohio Bar: 11/16

Kakar Advocates Admitted to Ohio Bar: 11/92, PA 1990

Young Lawyers Division February 1@ Noon Small Firm/Solo Office February 6 @ Noon Juvenile Law February 6 @ 4pm Diversity Issues February 7 @ Noon Appellate Court Practice *w/optional CLE see pg 12 February 8 @ Noon Estate Planning, Trust & Probate Law February 8 @ 4pm Domestic Relations February 9 @ Noon Real Property February 9 @ Noon Public Service & Congeniality February 10 @ Noon Federal Practice February 13 @ Noon Civil Trial Practice & ADR February 14 @ Noon Labor & Employment Law February 14 @ Noon Criminal Law & Its Enforcement February 15 @ Noon Workers’ Comp /Social Security *w/optional CLE see pg 12 February 16 @ Noon Corporate Counsel (In-House Counsel) February 23 @ 4:30pm @ OFFSITE

Admitted to Ohio Bar: 12/86

Law Student

CLOONAN, Alexander W. **

KRAEMER, Thomas R.

february '17 committee meetings


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Join the DBA Join the Conversation Get Involved with a Committee!

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Contact Carol for Committee details: cblevins@daybar.org 937.222.7902

Now that you are a member, we encourage you to access the many resources available to you and get involved with YOUR Association. *Join a Committee *Attend the Chancery Club Luncheon *Use Fastcase Legal Research FREE to Members! *Attend DBA CLE Programs SAVE Money with Your Member Discount! *Short on Time - Go Online Member Discounts on Online CLE Programs ...AND SO MUCH MORE



February 2017 Dayton Bar Briefs


law-related organizations Dayton Bar Association Foundation

Thank You to the DBA Membership for Your Continued Support! Every dollar of your support is leveraged with those of fellow members to make a difference in our community and demonstrate the generosity of local legal professionals.

Your DBA Foundation

Established in 1984 as the Charitable Arm of the Greater Dayton Legal Community To obtain more information about the Dayton Bar Association Foundation

Write, Call or Email: William B. Wheeler, Executive Director Dayton Bar Association Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: bwheeler@daybar.org

Greater Dayton Volunteer Lawyers Project Countless Men, Women and Children are Denied Justice Every Day Simply Because They are Poor Please tell us what you are willing to accept as pro bono work. Personal Representation of an Indigent Client: Divorce/Family Law Bankruptcy Consumer Issues Contract/Warranty disputes SS, SSI, SSD Tort Defenses Predatory Lending Stalking Protection Orders Civil Protection Orders Wage Claims Employment Disputes Guardianships Probate Homeownership Disputes Landlord/Tenant Disputes Health Care (Insurance Claims, Nursing Home Issues Other Or, you can choose from the options below: Acceptance of 1-2 Clinics (Batched Cases) per year - GDVLP provides paralegal, secretarial and runner services for these cases. Please specify Divorce, Chapter 7 Bankruptcy, or Expungement Assistance to 1-2 Non Profit Corporations in the Western Ohio Region Acceptance of 3-5 Guardianships with guardians provided through The Guardianship Program (person only) In addition: I will be available to provide pro bono civil legal assistance to victims if there is a community emergency (tornado, natural disaster)

Please return this form to VLP: By Mail: 610 Performance Place, 109 N. Main St., Dayton OH 45402 By Fax: to (937) 461-4731 By Phone: (937) 461-3857 By E-mail: kelly@gdvlp.org Name:________________________________________________ Firm:_________________________________________________ Address:______________________________________________ Preferred County for Pro Bono Service:_____________________ Phone:_______________________ Fax:____________________ Email:________________________________________________ Attorney Registration #:__________________________________

As of January 1, 2014 every 6 hours of pro bono service through an approved pro bono provider will give you 1 hour of CLE credit to a maximum of 6 hours of CLE credit (36 hours of pro bono). The Greater Dayton Volunteer Lawyers Project will send your hours to the Ohio Supreme Court and notify you of the same. 24

Dayton Bar Briefs February 2017


Thurgood Marshall Law Society

Sweatt v. Painter: One of Thurgood Marshall’s Greatest Gifts to Lawyers of Color

continued from page 14

In comparing the school that Texas built for black students with the University of Texas Law School, Chief Justice Fred M. Vinson wrote: The University of Texas Law School has 16 full-time and three part-time professors, 850 students, a library of 65,000 volumes, a law review, moot court facilities, scholarship funds, an Order of the Coif affiliation, many distinguished alumni, and much tradition and prestige. The separate law school for Negroes has five full-time professors, 23 students, a library of 16,500 volumes, a practice court, a legal aid association and one alumnus admitted to the Texas Bar; but it excludes from its student body members of racial groups which number 85% of the population of the State and which include most of the lawyers, witnesses, jurors, judges, and other officials with whom petitioner would deal as a member of the Texas Bar.8 Even in the face of these glaring differences, the Texas state courts ruled that the two schools were “substantially equivalent,” and despite Marshall’s urging, refused to order that Sweatt be admitted to the

University of Texas Law School.9 Luckily, the Supreme Court sided with Marshall and his client.10 It reversed the Texas state courts, and ordered that Sweatt be admitted to the University of Texas Law School.11Although the Court did not explicitly reject the doctrine of “separate but equal,” it held that black law students are entitled to legal education that is equivalent, not merely substantially equivalent, to that provided to white law students and that such education was not generally available in separate law schools. 12 Marshall’s arguments in this case helped open the doors of law schools to students of color across the country. And even though Sweatt never earned his law degree, due in part to his willingness to wage this fight and Marshall’s brilliant legal arguments, I and countless other lawyers of color have. ENDNOTES:

Sweatt, 339 U.S. at 636.

Sweatt, 339 U.S. 629, syllabus.


Sweatt, 339 U.S. at 636.


8 9

10 10

Sweatt, 339 U.S. at 635.

Sweatt, 339 U.S. at 632. Sweatt, 339 U.S. at 635.


University of Dayton School of Law


February 2017 Dayton Bar Briefs


members on the move





Casper & Casper, LLC. is pleased to announce that one of its partners, WILLIAM P. ALLEN was recently recognized as an Ohio Super Lawyer. He was recognized in the area of Plaintiff's Personal Injury practice. He also has experience assisting employees in Workers' Compensation matters. Rohrbachers Cron Manahan Trimble and Zimmerman shareholder SUZANNE BELOT-NORTON was again honored to be selected as a 2017 Ohio Super Lawyer. The announcement has been made in the 2017 edition of Ohio Super Lawyers Magazine, Cincinnati Magazine, and Cleveland Magazine. Suzanne's practice is focused on Ohio workers' compensation defense. Suzanne was also a recipient of the Toledo Business Journal’s “2016 Who’s who in Toledo Area Law” recognition under Workers’ Compensation and Municipal/Governmental/Public Law. ALEXANDER W. CLOONAN has joined the firm of McNamee & McNamee, PLL as an associate attorney. Alex focuses his legal practice in the areas of commercial litigation, municipal law, commercial and residential real estate, zoning, and commercial transactions. Alex was admitted to the Ohio bar in 2016 after graduating from the UDSL that same year. At UD, Alex served as a staff writer on the law review, having his article titled “The New American Home: A Look at the Legal Issues Surrounding Airbnb and Short Term Rentals” selected for publication. 26

Dayton Bar Briefs February 2017





Pickrel, Schaeffer & Ebeling, Co., LPA is pleased to announce that ANDREW C. STORAR, president of Pickrel, Schaeffer and Ebeling began his one year term as president of the Ohio State Bar Foundation (OSBF) on January 1, 2017. The OSBF is the charitable arm of the Ohio State Bar Association. Andy will lead a group of over 1,000 legal professionals toward the mission of improving public understanding of the law and building a better justice system. Last year the Foundation awarded approximately $900,000 in grants. Andy has over 30 years of experience representing entrepreneurs, individuals and businesses in a wide range of industries. Since 2015, he has been selected as an Ohio Super Lawyer and serves on many non-profit and charitable organizations. Thompson Hine LLP has elected new partners, effective January 1, 2017. The new partners, located across five of the firm’s offices, represent a broad range of practice areas. These lawyers exhibit exceptional skill in his or her area of practice, and demonstrates the firm’s commitment to helping clients achieve their business goals through the efficient, transparent delivery of legal services. The new partners in the Dayton office are: ELIZABETH BLATTNER, JONATHAN HAWKINS and RICHARD HELM. ELIZABETH H. BLATTNER, a member of the Corporate Transactions & Securities practice group, focuses on drafting and negotiating a wide range of contracts, including supply management, vendor and customer agreements, distribution agreements, and software, content

and mobile application license agreements; advising privately held companies; representing companies in acquisitions and dispositions; and assisting companies with contract management programs. JONATHAN S. HAWKINS, a member of the firm’s Business Restructuring, Creditors’ Rights & Bankruptcy practice group, focuses his practice on parties’ rights and remedies under the Uniform Commercial Code, Bankruptcy Code and state law, in and out of court. In addition, he assists lenders, buyers and sellers in transactions, frequently in a distressed context, such as receiverships, workouts and bankruptcy proceedings. He has been selected to the Super Lawyers 2015-2017 Ohio Rising Stars lists. RICHARD E. HELM is a member of the firm’s Commercial & Public Finance practice group. He advises both banks and corporate borrowers on secured and unsecured commercial loan transactions, including the negotiation and drafting of loan agreements and related security documents, as well as the authorizing corporate documentation of the borrower. Such matters have included financing arrangements for term and revolving lending. He also has experience in the area of public finance, representing issuers, borrowers and credit enhancers in connection with the issuance of tax-exempt bonds and taxable obligations. Wright & Schulte LLC is proud to announce that ERIK R. BLAINE and COREY ARTIM have again been named as Super Lawyers Rising Stars for 2017. Erik was also selected by the Dayton Bar Association as a Rising Star in October 2016. Erik, Corey, and the attorneys at Wright & Schulte LLC focus on providing each of their clients access to justice and preservation of their rights. MONTGOMERY COUNTY COURTS has switched to a new phone system and there are two (2) numbers that are no longer in service. The Delinquency Magistrate number is no longer 496-3226 and the Support Magistrate number is also no longer 225-4260. The new number for both is 225-4199.


classifieds EXPERIENCED COMMERCIAL REAL ESTATE ATTORNEY Graydon Head & Ritchey, LLP, 80+ attorney firm located in downtown Cincinnati, seeks a highly motivated, experienced commercial real estate attorney for our busy commercial real estate practice group. The candidate’s experience must be in commercial real estate transactions. Candidates should be licensed in Ohio, or willing to obtain admission to the Ohio Bar. Candidates should have high intellectual capacity, excellent analytical and writing skills, and works with a sense of urgency. The successful candidate is dedicated to pursuing commercial real estate practice as a career, and exhibits a "client service" approach to the practice of law. We offer competitive compensation and an attractive benefits package. Please reply in confidence with your cover letter, resume and law school transcript to: Barbara Hopewell Chief Professional Development Officer and Director of Human Resources 312 Walnut Street, Suite 1800 Cincinnati, OH 45202 (Phone) 513.629.2858 (Fax) 513.651.3836 E-Mail: bhopewell@graydon.com EXPERIENCED DIVORCE LAWYER SOUGHT Holzfaster, Cecil, McKnight & Mues has an opening for a lawyer with preferably 3+ years experience in Domestic Relations work. Some present book of business is a plus. Please send resume to Chip Mues at lawdayton@gmail.com.

John (Jack) M. Meagher, Judge (Retired) MEDIATION SERVICES SINGLE, MULTI PARTY Four steps: 1. Convince parties to mediate 2. Pre-mediation preparation 3. Designing the protocol for your case* 4. Drafting the terms of Settlement** *What works in one case may not in another. ** If a post mediation issue, continue to serve until resolved. No additional charge! Based on my 21 years experience (2,000+ mediations) I can help at every step. 2305 Far Hills Ave., Ste. 203 Dayton, Ohio 45419 937-604-4840 jmeagher2@gmail.com


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 OFFICE AVAILABLE Downtown Dayton office with great view available. Reasonable overhead. If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 224-1427.

OFFICE SPACE 101 Southmoor Circle, NW (Stroop and Far Hills). Two offices available at $550/month/office. Furnished or unfurnished. Take one or both offices. Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area, conference room, Dayton Racquet Club athletic membership. Email dave@ SchmidtDayton.com for info and pics.

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advertiser index ComDoc Inc..............................................14 Eikenbary Trust ......................................7 Ferneding Insurance...............................14 J. Steve Justice - Mediations.............. 10 LCNB Bank................................................9 National Processing Solutions............21 OBLIC..........................................back cover R.L. Emmons & Associates.......................7 Rogers McNay Insurance.......................19 Trisha M. Duff - Mediations...................5

mark your calendar Chancery Club Luncheon The Old Courthouse Fri.(s) February 10, March 17, and May 12 *Thurs. April 20, 2017 2017 Probate Law Institute Sinclair College, Bldg. 12 Fri. March 10, 2017 Annual Diversity Day Luncheon Sinclair College, Bldg. 12 Fri. April 7, 2017 Annual Domestic Relations Seminar Sinclair College, Bldg. 12 Fri. April 21, 2017 Celebration of Life Memorial Luncheon Sinclair College, Bldg. 12 Wed. May 9, 2017 DBA Annual Meeting June 2017 February 2017 Dayton Bar Briefs


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