January 2021 Dayton Bar Briefs Magazine

The Magazine of the Dayton Bar Association | JANUARY 2021 | Vol. 70, No. 5

Dayton

Bar Briefs

Trustees Message

New Years’ Resolution for a Happier & Healthier 2021

pg 4

Corporate Counsel

Beware of the Landmines: A T.C.P.A. Overview pg 12

From the Judges Desk "Is the court having any jury trials?" pg 16

CONTENTS

Dayton

Bar Briefs

January 2021 | Vol. 70, No. 5

Dayton Bar Association Board of Trustees 2020-2021

Fredric L. Young President

Merle F. Wilberding

Features 4

Second Vice President

Denise L. Platfoot Lacey Secretary

Hon. E. Gerald Parker Jr. Treasurer

Rebecca M. Gentry Member–at–Large

Anne P. Keeton Member–at–Large

Justine Z. Larsen Member–at–Large

Sean P. McCormick Member–at–Large

Hon. Mary Wiseman

Immediate Past President

By Justine Z. Larsen Esq. | Bieser Greer & Landis, LLP

6

BARRISTER OF THE MONTH: BRENT G. TABACCHI ESQ.

By David C. Greer Esq. | Bieser Greer & Landis, LLP

8

NEW FEATURE!

Words of “Wisdom” From a Second Year Associate: a primer for the newly initiated

First Vice President

Caroline H. Gentry

TRUSTEES MESSAGE New Years’ Resolution for a Happier and Healthier 2021

LEADERSHIP DEVELOPMENT CLASS

By Joseph R. Barton Esq. | Thompson Hine LLP

10 25 YEAR HONOREES 11 THANK YOU DBA 100% CLUB FIRMS 12 CORPORATE COUNSEL Beware of the Landmines: A T.C.P.A. Overview

By Brandon M. Allen Esq. | Wright-Patt Credit Union, Inc.

16 FROM THE JUDGES DESK"Is the court having any jury trials?"

By The Honorable Gerald Parker | Montgomery County Common Pleas Court

17 DIVERSITY EQUITY & INCLUSION ROUNDTABLE

John M. Ruffolo, ex officio

18 2020-2021 DBA SUSTAINING & HONORARY MEMBERS

Jennifer Otchy, ex officio

20 50 YEAR HONOREES The Last Installment of 2020 Honorees

By David C. Greer Esq. | Bieser Greer & Landis, LLP

Bar Counsel

Chief Executive Officer

BAR BRIEFS is published by the Dayton Bar Association, 109 N. Main St., Ste 600, 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 first day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through Summer.

22 OLAP When to Call OLAP

By Scott R. Mote, Executive Director | OLAP Departments 7

DBA MOCK TRIAL COMPETITION *Several dates available to volunteer January - March

Paid subscription: $30 / year

9

JANUARY SECTION MEETINGS *Join a DBA Section in the New Year!

Library of Congress ISSN #0415–0945

13 DBA BOOK CLUB "JUST MERCY" BY BRYAN STEVENSON *January 27th @ 4pm

Jennifer Otchy, Chief Executive Officer

Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 www.daybar.org

Fax: 937.222.1308

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

14 THANK YOU 2020 CLE SPEAKERS! 24 CLASSIFIED ADS 24 ADVERTISER INDEX 25 2021 DAYTON BAR FOUNDATION GIVING 25 LAW RELATED ORGANIZATIONS 27 MEMBERS ON THE MOVE

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Dayton Bar Briefs January 2021

937.222.7902

DBA Annual Partners Sponsors of the DBA.

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.

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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.

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

January 2021Dayton Bar Briefs

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Trustees Message

New Years’ Resolution for a Happier and Healthier 2021 J

By Justine Z. Larsen Member-at-Large Bieser Greer & Landis, LLP jzl@biesergreer.com | 937-250-7790

ust like every other New Year, I suspect that many of you made New Years’ Resolutions with the same overarching theme – to live a happier and healthier life. Considering how COVID has impacted all of our lives, these resolutions may be even more important than they were in the past. And, oddly enough, some of them might even be easier to keep while we continue social distancing and working remotely.

Toward that goal, it is time to address an elephant in the room that we know exists but often ignore – alcohol and its overuse and abuse by the legal community. This issue was implanted in my brain in law school by a professor who candidly shared his story of addiction and how it almost derailed a successful career. Fortunately for him, his law firm supported him and covered the costs for treatment, and through personal fortitude he remained sober and committed to overcoming the stigma of addiction for his law school students. I assumed given the widespread recognition of this issue, the legal community would discuss it more openly so that anyone struggling felt comfortable admitting that he or she needed help. Instead, I found that except for a few of the more confident practitioners who speak openly of their own recovery, alcohol abuse remains a whispered secret between colleagues and friends who laugh together in relief that they are not alone.

This seems especially true with the newer attorneys. As the ABA Journal recognized, “[n]umerous studies through the decades have shown lawyers to be significantly more prone to alcoholism than the general . * * * But this statistic could surely be excepted to change as healthconscious millennials, a cohort known for bucking the long-standing trends of previous generations, come to dominate the field of law. So far, the evidence suggest otherwise.”1 In fact, “junior associates at law

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Dayton Bar Briefs January 2021

firms are the heaviest drinkers.”2 Some reasons are not entirely surprising. Junior associates are often stressed from balancing a demanding workload while developing practical skills and knowledge omitted from the general law school curriculum. Meanwhile, many are also getting married and starting new families, and thus find themselves torn between conflicting priorities. However, there is another reason that may not be as obvious – the drinking preference of the younger generation. Millennial beer drinkers gravitate toward craft beer with its ever-increasing alcohol content.3 As a craft beer drinker myself, I was surprised when the drinking social media platform, Untappd, which allows you to log and rate beers that you have tried, labeled beers between 5-10% alcohol as “Middle of the Road.”4 That same day, my local beer store touted a new beer that arrived with a staggering 14% ABV, suggesting that I should buy it before it quickly sold out. Thus while many of the more seasoned attorneys drink beers with alcohol content between 4-5% ABV, their younger colleagues gravitate toward beer with two to three times the alcohol content.5

continued on page 5

ENDNOTES: 1

John Miranda, Legally bombed: Young millennial lawyers, same old alcoholism, ABAJOURNAL (Oct. 9, 2018), https://www.abajournal.com/voice/article/legally_bombed_ young_millennial_lawyers_same_old_alcoholism (Last visited Nov. 30, 2020).

2 Id. 3 Id. 4 See generally, Untappd, untapped.com.

5 Supra endnote i.

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TRUSTEES MESSAGE: New Years’ Resolution for a Happier and Healthier 2021 continued from page 4 So how do we combat this problem? First, we need to recognize when drinking becomes an issue. As the ABA notes, “An alcohol use disorder may be mild, moderate or severe depending on the number of symptoms.”6 Such symptoms can include, for example, “[m]aking a ritual having drinks at certain times and becoming annoyed when this ritual is disturbed or questioned[,] * * * [i]rritability when your usual drinking time nears, especially if alcohol isn’t available[,] * * * [g]ulping drinks, ordering doubles, becoming intoxicated intentionally to feel good or drinking to feel ‘normal’[.]”7 Second, we can find ways to curtail the issue. This is harder when we meet in person at DBA events where alcohol is served. It is not uncommon for good-natured individuals to offer to buy you a drink when they see your empty hand. To that end, the National Institute on Alcohol Abuse and Alcoholism not only recommends scripting and practicing saying no to those offers, but also other strategies such as holding a non-alcoholic drink in your hand, bringing a sober friend to keep you accountable, and having an escape plan when you cannot resist temptation.8 Most importantly, we need to encourage our colleagues and ourselves to get professional help when alcohol becomes an issue. It is hard to overcome the shame and the fear that admitting the problem may tarnish your professional reputation. But the Ohio State Bar Association recognizes this and thus created the Ohio Lawyers Assistance Program (OLAP) to confidentially assist judges, attorneys, and law students in treating their substance abuse and mental health issues.9 Although we cannot control how COVID impacts our lives in the

www.daybar.org

months to come, it has provided us two unexpected benefits to encourage treatment for alcohol disorders. First, social distancing provides us more time for personal reflection so that we can assess whether we have an alcohol disorder. Second, it has also temporarily halted social events that often feature alcohol, thus eliminating the potential temptation to imbibe with friends and colleagues. If you feel you are losing control of your alcohol consumption, confide in those close to you and please contact OLAP at (800) 348-4343 to ask for help.10 Here’s to a happier and healthier 2021.

ENDNOTES: 6 Alcohol Use Disorders, American Bar Association (March 31, 2020), https://www. americanbar.org/groups/lawyer_assistance/resources/alcohol_abuse_dependence/ (Last visited Nov. 30, 2020).

7 Id. See the website for a more comprehensive list.

8 Building Your Drink Refusal Skills, Rethinking Drinking: Alcohol & Your Health, National Institute on Alcohol Abuse and Alcoholism, https://www.rethinkingdrinking. niaaa.nih.gov/tools/Interactive-worksheets-and-more/Stay-in-control/drink-RefusalSkills.aspx (Last visited Nov. 30, 2020.

9 Olap Ohio Lawyers Assistance Program, ohiolap.org (Last visited Nov. 30, 2020).

10 Id.

January 2021Dayton Bar Briefs

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Barrister of the Month

Brent A. Tabacchi Esq. U.S. Attorney's Office, Southern District of Ohio

I

n the fourth of man’s seven ages, according to Jacques, we find the soldier seeking the bubble reputation in the cannon’s mouth. As Brent Tabacchi attests, reputation may be a bubble in some careers and callings, but it is the gold standard in the profession of law. As every lawyer or judge who has had dealings with Brent will attest, he honors that gold standard in every professional encounter. No bluff, no bluster, no puffery – just the fair and balanced exchange of facts and opinions. What a pleasure it is to deal with Mr. Tabacchi on a disputed case.

Win or lose, you will experience an adversary system as it was designed to function.

Brent grew up in downstate Illinois. He received both his undergraduate degree and his law degree at the University of Illinois, moved to Chicago and spent a year as law clerk to Judge Kenneth F. Ripple of the Seventh Circuit, United States Court of Appeals, spent two years with the esteemed Chicago firm of Sidley & Austin, and then launched his career as an Assistant United States Attorney in Orange County and Los Angeles, California.

The California experience was a head-first immersion into the waters of major white collar crime prosecutions. It was also an encounter with traffic patterns which leave you at any geographical point two hours from anywhere.

Getting to the Federal Courthouse in Los Angeles generated an echo of General Grant’s response when, emerging from the Wilderness, he was asked how long it would take him to get to Richmond. His response was, “it won’t take long unless somebody gets in the way.” And somebody always gets in the way.

Brent’s father who was living in Springfield, Illinois became seriously ill in 2006. Trips back and forth between California and Illinois were cumbersome undertakings, and the Midwest beckoned Brent’s return. The U. S. Attorney’s Office in Chicago had no open positions.

There were three potential openings in the Midwest at the time – Detroit, Cleveland and Dayton. Dayton got lucky when Greg Lockhart offered Brent a position here as an Assistant United States Attorney. Brent also got lucky when he decided to accept Greg’s offer and come to Dayton. His prior experience here had been a pleasant, but ephemeral, trip to the Air Force Museum. His arrival in 6

Dayton Bar Briefs January 2021

town to start his new job was both pleasant and magnetizing.

Traffic was no longer an issue. In California your opponent was almost always a lawyer you would never encounter again in your career, an individual who therefore felt that he or she could adopt a “take no prisoners” approach to negotiation and trial tactics. In Dayton Brent found a collegial bar where lawyers can develop professional relationships with recurring opponents. Dayton itself, he quickly learned, is a welcoming city with a diverse offering of the arts and a friendly atmosphere.

He has settled into the Oregon District with his wife, Mandy, who works for Ohio Jobs & Family Services and with his fourteen-year old daughter, Ella, who thinks she is in seventh heaven with schooling at Chaminade-Julienne and with a home only a block from all the downtown action on Fifth Street. The family has recently expanded with the arrival of Ella’s baby sister, Ada. Boredom is never a risk to a busy trial lawyer. With or without the drudgery of meticulous preparation, the job offers daily challenges and daily surprises. Brent acknowledges that the witness you thought would be perfection straight out of central casting often turns into disaster on the witness stand and the witness you hesitate to put on that stand will often blossom into game-changing persuasiveness.

Predictions are only occasionally accurate.

Brent recalls one case in which everything seemed to be going so well that he and his co-counsel debated whether to put an additional corroborating witness on the stand.

The election was made to use the witness, and the witness proceeded to testify completely in contradiction to everything the witness had said in his pretrial preparation. The defense had destroyed what was left of the witness’s testimony in five short questions on crossexamination. Brent’s co-counsel leaned over and whispered to him, “Did you hear that?”

“Hear what?” “That red-headed step-child they just let out of the attic and is now screaming all over the courtroom!”

Sometimes it is the embarrassed adversary who provides humor in the courtroom. There was a California criminal trial in which the presiding judge was a woman who had never been known to smile. Brent called a cor-

roborating witness for the prosecution, a lovely Latin woman who was named Juantila. The defense attorney had a terrible time mangling the lady’s name during his cross-examination.

After fumbling over the name on three occasions, he brightened up and asked her “Now, Genitalia, can you tell us . . . .” Before the question was finished the courtroom was filled with laughter of jurors, spectators and participants. Even the judge who had never before smiled, was hunched over the bench shaking with stifled guffaws.

Sometimes the courtroom comedy can have a cruel edge. In another trial the jury returned its verdict in a three count criminal case. The judge asked the clerk to read the verdict.

“Count One – Not Guilty.” The defense table dissolved in ecstasy at an unanticipated result.

The judge, however, snapped at the clerk “Give me those verdict forms.” Then the judge read them: “Count One – Guilty, Count Two – Guilty, Count Three – Guilty.”

That is the usual result when Brent takes a case to trial. But in Dayton, as elsewhere, the vast majority of federal criminal cases result in pleas since the defendants typically find themselves in boxes from which there is no exit. The number of courtroom surprise stories may be diminishing, but the case load keeps accelerating and the forensic debates over objectively fair case-by-case results remain the same. Brent’s enviable reputation remains intact.

In January of 2020 he was recognized by a United States Attorney Award for Outstanding Performance. In 2019 he carried the largest case load in the Dayton Office, spanning almost every substantive area of federal criminal law. In that year he was responsible for federal charges against sixty defendants in thirty-four cases. In June of 2018 he was one of three employees in the United States Attorney’s Office in the Southern District of Ohio who were among the 162 members of the Department of Justice nationally recognized in Washington for superior performance. It was noted that in his more than thirteen years in the District Dayton Office he has handled an extremely diverse and difficult case load including the prosecution of the largest Ponzi scheme in Dayton’s history.

continued on page 7

937.222.7902

BARRISTER OF THE MONTH: Brent A. Tabacchi Esq. continued from page 6

Brent wears his honors with a becoming modesty and with an ever-gracious, affable, low-key style and manner. When he is not immersed in the arduous tasks provided by his profession, you can find him entertaining – and being entertained by – his wife and daughters, vicariously fighting the battles of the Civil War and World War II through the pages of history books, biting his fingernails and hoping for good fortune to his Chicago Cubs, or dispassionately watching college football or basketball contests. He is comfortable with the realization that wealth from the perspective of a trial lawyer comes in the form of stories and memories rather than dollars. He plans to keep his hard-won reputation intact, and he knows that when he dies it won’t be as a result of boredom.

By David C. Greer Esq. DBA Editorial Board Bieser Greer & Landis LLP dcg@biesergreer.com | 937.250.7773

DAILY COURT REPORTER www.DailyCourt.com

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January 2021Dayton Bar Briefs

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Words of “Wisdom” From a Second Year Associate: A primer for the newly initiated

A

nother year has come and gone, and I have recently found myself reflecting upon the year that was. 2020 was my first full year as a practicing attorney, and there has been much to reflect upon. Now that a fresh crop of rookies are preparing to embark on their first full year as members of our profession, I’d like to share some hardearned wisdom, such that it is, with Dayton’s newest attorneys in the hope that it may prove useful.

Welcome to your first full calendar year as a lawyer! Prepare yourself to discuss the fact that this is your first full calendar year as a lawyer with nearly every attorney that you interact with over the next 12 months. My experience has been that doing so will come in handy later.

Early on you will likely find yourself (virtually?) attending a great many community, bar, and charitable events, oftentimes hosted by or in conjunction with the DBA. You may hear faint grumblings about the fact that these events are not billable, but you will not mind, because, frankly, you’re not completely sure that you should be trusted with billable work anyway. The events you’ll find yourself attending are worth your time. They will help you feel that you really are a part of this community and this profession, and you will likely meet folks from outside your office who may one day lend you a helping hand.

You will almost certainly forget to register for at least one of these events. But you will not realize that you forgot to register until the last possible moment – probably while you are standing in the line to get in, surrounded by senior lawyers. You will sheepishly approach the DBA staff member behind the check-in desk that bears the signin sheet and the nametags. You will shame whisper your truth to this person. They will smile warmly, nod seriously, and then they will let you in anyway. They will do this in such a way that the other people in line don’t

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Dayton Bar Briefs January 2021

even notice. You will understand in this moment that the DBA staff are your allies, and that theirs is an essential allegiance.

At these events you will meet other DBA members, and you will feel obliged to introduce yourself. “I’ll tell them this is my first full calendar year as a lawyer,” you’ll think to yourself. Trust this instinct – it is bulletproof.

You will not think all that much about these encounters at the time, but some small part of you will recognize that it is a smart thing to do.

You should enjoy your event-centric phase while it lasts. You will begin to find that there are more obligations on your calendar, and soon – much sooner than you consider reasonable – you will find yourself on the precipice of some kind of deeply intimidating assignment that requires you to jump outside of your comfort zone.

Let’s say, hypothetically, that this task is an eviction hearing you’ve been volunteered for through the Greater Dayton Volunteer Lawyers Project. Let’s say that you show up half an hour early because you think that is the prudent thing to do. This will be when you learn, deep in your bones, that half an

By Joseph R. Barton Esq. 2020-2021 DBA Leadership Development Class Thompson Hine LLP joe.barton@thompsonhine.com | 937.443.6600 hour is far too much time to give yourself.

You will suddenly realize that a half hour is the exact amount of time it takes to decide that you have no idea what you are doing, and that you are a fraud. It will be precisely in this moment that you will spot an attorney you met at a DBA event.

You will sheepishly approach this attorney.

You will shame whisper your truth to this person. You will remind him or her that you met at a DBA event, and that this is your first full calendar year as a lawyer. This person will smile warmly, nod seriously, and then he or she will help you and make you feel more

continued on page 9

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LEADERSHIP DEVELOPMENT: Words of "Wisdom" From a Second Year Associate continued from page 8

comfortable. He or she will then offer to take you back to meet the judge. He or she will gently insist that you do this when you initially decline. Meeting the judge will go fine, the hearing will go fine, the case will work itself out fine. You will begin to internalize the reality that you do know what you’re doing.

This exact thing will happen to you more than once. In fact, you may notice a kind of reliable synchronicity when it comes to these things. You may, for instance, decide to attend a DBA section meeting where someone presents about the impending changes to the Ohio Rules of Civil Procedure. Trust that, shortly thereafter, someone you work with will ask you to draft a firm-wide update about these changes. Or you may agree to judge a mock trial competition hosted by the DBA. There you may just meet the person who becomes your mentor for the Ohio Supreme Court’s New Lawyer Mentoring Program. You may also end up judging that competition with Dayton’s next Common Pleas Court Judge!

I’ve done my best to phrase my predictions as hypotheticals because we all walk different paths which are colored by different experiences. In truth, I cannot guarantee you that any of this will happen to you during your first-year practicing law.

I can, however, absolutely guarantee you a few important things, contingent upon your participation in our community here.

If you show up you will meet people, either local practitioners or the staff of the DBA or GDVLP, who will ultimately help you.

If you show up, you will be connected to interesting opportunities that broaden the horizons of your legal practice and provide you with a chance to be of service to others. Finally, if you show up you will almost always find a new reason to be proud of the fact that you are an attorney, and that you live in Dayton, Ohio.

DAYTON Bar Association

HERBERT M. EIKENBARY

Trust

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 $4,000 are also available.

To Apply: Jennifer Otchy,DBA Chief Executive Officer Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org

January 2021 DBA Section Meetings RSVP Online: daybar.org/events

Mon. January 4 Juvenile Law | 4-5pm

Thurs. January 14 Domestic Relations | Noon-1pm

Wed. January 6 Fri. January 15 Estate Planning Trust & Probate | 4-5pm Diversity Issues | Noon-1pm Young Lawyers Division | Noon-1pm Wed. January 27 Thurs. January 7 Criminal Law | Noon-1pm Real Property | Noon-1pm Thurs. January 28 Tues. January 12 Paralegal | Noon-1pm Civil Trial Practice & ADR | 5-6pm Corporate Counsel | 4:30-5:30pm Wed. January 13 Appellate Court Practice | Noon-1pm

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January 2021Dayton Bar Briefs

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We appreciate your commitment to the legal community!

Michelle D. Bach Coolidge Wall Co., LPA

Michael A. Booth

Gregory M. Gantt

Gregory M. Gantt Co., LPA

Daniel J. Gentry

Carolyn L. Mueller

Anne E. Ross Taylor

Mueller Law Group, LLC

Gammell Ross & Hoshor, LLC

Joseph C. Oehlers

Charles M. Rowland ll Babb Rowland Anderson, LLC

Sebaly Shillito + Dyer

Coolidge Wall Co., LPA

Bieser Greer & Landis, LLP

Melinda K. Burton

Nicholas G. Gounaris

Stephen Patrick O’Keefe The O’Keefe Firm

Law Office of Ben Swift

Lynnette P. Dinkler

Robert G. Hanseman

R Michael Osborn

Michelle S. Vollmar

Kristin A. Finch

Douglas G. Houston Houston Law Office, LLC

Dinsmore & Shohl, LLP

Lisa S. Pierce

William Douglas Waymire

Martin A. Foos

Kevin Charles Lewis

Lynn M. Reynolds

Faruki PLL

Dinkler Law Office, LLC

Coolidge Wall Co., LPA

Gottschlich & Portune, LLP

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Dayton Bar Briefs January 2021

Gounaris Abboud, LPA

Sebaly Shillito + Dyer

Speedway LLC

Coolidge Wall Co., LPA

Care Source

Ben M. Swift

Rogers & Greenberg, LLP

Second Dist Ct of Appeals

LaTanya R. Wilson

Legal Aid of Western Ohio

937.222.7902

S p e c i a l M e mb e r s h i p C a t e g o r y

The 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community. All firms and legal organizations with two or more attorneys are invited to join the Club!

FIRMS WITH 70+ MEMBERS

FIRMS WITH 5-14 MEMBERS

WilmerHale

Altick & Corwin Co., LPA Auman Mahan & Furry, LPA

FIRMS WITH 35-50 MEMBERS

Bruns Connell Vollmar & Armstrong, LLC Dayton Municipal Court

Coolidge Wall Co., LPA

Faruki PLL

Montgomery County Public Defender’s Office

Gottschlich & Portune, LLP

Green & Green, Lawyers

FIRMS WITH 25-30 MEMBERS Sebaly Shilito + Dyer

Gudorf Law Group, LLC Hochman & Plunkett Co., LPA Kirkland & Sommers Co, LPA Legal Aid of Western Ohio

FIRMS WITH 15-20 MEMBERS Bieser Greer & Landis, LLP Freund, Freeze & Arnold, A Legal Professional Association Second District Court of Appeals

Montgomery Cty Probate Court Rogers & Greenberg, LLP Subashi Wildermuth & Justice Surdyk Dowd & Turner Co., LPA

FIRMS WITH 2-4 MEMBERS Albert & Krochmal

Ferguson & Ferguson LLC

Kettering Municipal Court

Mueller Law Group LLC

Baldwin Valley Law, LLC

Fox & Associates Co., LPA

LCNB National Bank

Myers & Frayne Co., LPA

Boucher & Boucher Co., LPA

Gammell Ross & Hoshor, LLC

Lennen Law LLC

Nolan Sprowl & Smith

Cowan & Hilgeman

Law Office of Gump Deal & Hirth

Leppla Associates, Ltd.

O’Diam & Estess Law Group, Inc.

Crown Equipment Corp.

Hartley Law Office, LLC

Liberty Savings Bank, FSB

Roberson Law

Robert L. Deddens Law Offices

Hedrick & Jordan Co., LPA

Lovett & House Co., LPA

Roderer Law Office, LLC

Douple, Beyoglides, Claypool &

Hochwalt & Schiff, LLC

Martin Folino, LPA

Sherrets Law Offices, LLC

Lipowicz

Holzfaster Cecil McKnight & Mues, LPA

Craig T. Matthews & Associates, LPA

Stamps and Stamps

Dysinger & Patry, LLC

Jablinski Roberts & Gall, LPA

Mesaros Law Office

Tracy & Tracy Co., LPA

Elliott, Faulkner & Webber

Jackson Lewis, P.C.

Miamisburg Municipal Court

Treherne Law Office

Esler & VanderSchaaff Co., LPA

Jacox Meckstroth & Jenkins

Stephen D. Miles

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January 2021Dayton Bar Briefs

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Corporate Counsel

Beware of the Landmines:

A T.C.P.A. Overview

By Brandon M. Allen Esq. Co-Chair Corporate Counsel Wright-Patt Credit Union, Inc. ballen@wpcu.coop | 937. 912.7773

S

martphones and texting dominate our society. You see it everywhere, at home and in public. Text messaging has become so ubiquitous it has in many ways replaced common everyday phone calls to both friends and family members. Beyond these social societal changes, text messaging has also entered business. Doctors send us text reminders about upcoming appointments. Retail stores text you when your order is ready for pickup, and banks and credit unions text fraud alerts if suspicious activity occurs on your account. These advancements in technology and access to information are largely welcomed, but businesses would be wise to understand the potential perils associated with text messaging customers and clients.

This article aims to provide a brief introduction to the Telephone Consumer Protection Act (“TCPA”), and how it could affect your corporate clients. The TCPA is codified at 47 U.S.C. § 227, and the FCC provides rulemaking at 47 C.F.R. § 64. The TCPA became law in 1991, and the FCC has issued new rules and interpretations numerous times since then.

The primary goals of the legislation were to restrict unsolicited, automated telephone calls to residential telephone lines, and provide citizens with a private right of action against telemarketers.i From these seemingly innocuous beginnings, the TCPA has transformed into something far different. In fact, the TCPA has become fertile ground for class action litigation throughout the country in the last eight years. Broadly speaking, the TCPA prohibits a caller from making an autodialed call/text to a cellular phone number unless the call/ text is for an emergency purposeii or with the “prior express consent” of the called party. The FCC has ruled, and it is now settled law, that a text message is considered a call under the TCPA, and the same analysis applies.

This litigation uptick has come about for three reasons. First, the $500 statutory damages cap is a strict liability penalty, per instance, of violation. If your client violates the statute by texting someone 10 times without permission, they are subject to $5,000 in damages, and not $500. The damages triple to $1,500 per instance of willful or knowing violation.iii Second, the U.S. Supreme Court’s 2012 decision in Mims v. Arrow Financial Services, LLCiv opened the federal court system to TCPA claims. Until that time, state court was the only permissible venue for a TCPA claim because the statute seemingly requires it. Third, there is ample legal uncertainty regarding the TCPA, and how the language of the statute comports with modern technology and business practices.

This legal uncertainty can be further refined into two areas. The definition of “automatic telephone dialing system” (“ATDS”), and consumer consent. The TCPA defines “automatic telephone dialing 12

Dayton Bar Briefs January 2021

system” as equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.v The term “capacity” is not defined in TCPA, but in 2015 the FCC issued a new declaratory ruling which interpreted “capacity” to mean not only the current capacity of the dialer, but also the future capacity. Incredibly, this definition meant if the dialing equipment can be modified to dial in an automated way – even with the addition of software that is not currently owned by the calling party – the system counts as an ATDS for purposes of the TCPA.vi Now, any smartphone available for purchase by any consumer has exponentially more computing power than the telemarketing machines used in 1991, and all current smart phones have the hypothetical “capacity” to randomly generate numbers. Though this fact was tacitly acknowledged by the FCC in the 2015 ruling, it simply did not care.vii Three Circuit Courtsviii have struck down the FCC’s very broad interpretation, while three Circuit Courtsix (including the Sixth) have upheld the interpretation.

The U.S. Supreme Court granted certiorari this summer to hear the case of Facebook, Inc. v. Duguid, which should (hopefully) resolve this split amongst the various Circuit Courts. Oral argument was

continued on page 13

ENDNOTES: S. Rep. No. 102-178, at 2 (1991); see also H.R. Rep. No. 102-317, at 10 (1991).

The recognized types of “emergency” calls/texts generally are time sensitive financial and healthcare issues, including fraud and identity theft prevention, data breaches, and for healthcare treatment purposes. iii In the U.S. Supreme Court Facebook, Inc. v. Duguid putative class action case, discussed below, the plaintiff alleged Facebook sent tens of thousands of texts in willful violation of the TCPA. At $1,500 per violation, it is not difficult to see why the TCPA is attractive to class action counsel. iv 132 S. Ct. 740 (2012). v 47 U.S.C. § 227(a)(1) (emphasis added). vi In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, at ¶ 10-21 (2015). vii Id. at ¶ 21. viii Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. 2018); Duran v. La Boom Disco, Inc., No. 19-600-CV, 2020 WL 1682773 (2nd Cir. 2020); Allan v. Penn. Higher Educ. Assistance Agency, No. 19-2043, (6th Cir. 2020) ix ACA International et. al v. Federal Communications Commission, 885 F.3d 687, No. 15-1211 (D.C. Cir. 2018); Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018); Gadelhak v. AT&T Services, Inc., No. 19-1738, 2020 WL 808270 (7th Cir. 2020) i

ii

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CORPORATE COUNSEL: Beware of the Landmines: A T.C.P.A. Overview continued from page 12 held on December 8, 2020. Until a decision is issued, this much is clear in Ohio. First, almost any technology more sophisticated than a rotary phone which has the ability to call or text a number is likely to be considered an ATDS for TCPA purposes. Second, if an ATDS is involved, then “prior express consent” is required to make a non-emergency autodialed non-solicitation text. This form of consent can be written, oral, or implied, based on the prior interactions between the parties.x In TCPA litigation, the burden is on the defendant/business to demonstrate “prior express consent.” xi Though the FCC has been clear that “prior express consent” is required for a non-solicitation text, the method of how one goes about obtaining such consent is not defined. “[N]either the Commission’s rules nor its orders require any specific method by which a caller must obtain such prior express consent ... [and] the scope of consent must be determined upon the facts of each situation[.]”xii Not exactly helpful.

A second heightened form of consent is “prior express written consent.” This form of consent is required to make any autodialed marketing/sales/advertising calls or texts. The TCPA requires the written disclosure be clear and conspicuous advising the consumer that by signing the disclosure: (1) the consumer is authorizing autodialed marketing/sales/advertising calls; and (2) the consumer is not required to sign the disclosure as a condition of receiving goods or services. Thus, it is clear a business cannot market new services or products to customers by autodialed texts to their cell phones without “prior express written consent.”

With this brief introduction here are a few recommendations on how to combat TCPA liability. First, consider updating customer agreements/client forms to provide “prior express consent” to call/ text a mobile number. The Sixth Circuit has explored this topic in a 2016 decision.xiii Next, be prepared to handle “opt-out” requests. A consumer always has the right to revoke consent down the road. Last, understand the significant difference between advertising/marketing calls/texts, and non-solicitation calls/text. Be aware that advertising/ marketing calls/texts are broadly construed in TCPA cases. If you don’t have “prior express written consent,” you cannot market to a mobile number. As a former mentor often said, be careful out there!

ENDNOTES:

The Sixth Circuit Court of Appeals addressed the issue of implied “prior express consent” in the 2016 opinion of Baisden v. Credit Adjustments, Inc., 813 F.3d 338 (6th Cir. 2016). xi See, Baisden, 813 F.3d 338. xii In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, at 7990 (2015). xiii See, Baisden, 813 F.3d 338.

x

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January 2021Dayton Bar Briefs

13

C ontinuing L egal E ducation

THANK YOU! On behalf of the CLE Coordinator Ashley Likens, the DBA staff, and membership, we would like to thank the following December CLE instructors for their leadership enabling the DBA to remain strong throughout the 2020 season.

Sasha A. Blaine

Matthew R. Jenkins

Daniel E. Ramer

Cassandra Burrell-Williams

Heather N. Ketter

Magistrate Barbara E. Reno

Honorable Anthony Capizzi

Magistrate Kathleen Lenski

Magistrate J. Andrew Root

Honorable Steven K. Dankof

Theodore D. Lienesch

John M. Ruffolo

Alan Duvall

Michael S. Mayer

Jeffrey S. Sharkey

Margaret “Peg� L. Foley

Kevin McDonald

Magistrate Elaine M. Stoermer

Honorable Jeffrey E. Froelich

Glen R. McMurry

Jaime M. Taylor

Daniel J. Gentry

Amy L. Metcalf

Honorable Michael L. Tucker

Joseph E. Gibson

Roger Neal

Honorable Helen Wallace

Jennifer H. Harrison

Gabrielle R. Neal

Adam R. Webber

Jeffrey A. Hazlett

Honorable Michael J. Newman

Katharine C. Weber

Michael Hendershot

Jane P. Novick

Honorable Jeffrey M. Welbaum

Christopher C. Hollon

Jason W. Palmer

Frank B. Williams

Jonathan F. Hung

David P. Pierce

Honorable Timothy D. Wood

Sarah Hutnik

Terry W. Posey Jr.

Should you wish to be a presenter for a CLE or speak at an upcoming section meeting, Please contact Ashley: alikens@daybar.org 14

Dayton Bar Briefs January 2021

937.222.7902

JANUARY 2021 CLE

S elf -S tudy V ideo R eplays Thurs. January 7 | 3pm-4pm | 1.0 Gen Self-Study Hr Seminar #: 2021062

Wed. January 20 | 9am-12:15pm | 3.0 Gen Self-Study Hrs Seminar #: 2021064

Self-Study Video Replay!

Self-Study Video Replay!

A Collision Course with Destiny: Where Payable on Death accounts meet a Power of Attorney

Judge Dankof's Criminal Law Update

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

M $35 | NL <2yrs & Paralegal $15 | PP & LS $0

Fri. January 15 | 1:15pm-4:30pm | 3.0 Gen Self-Study Hrs Seminar #: 2021063 Self-Study Video Replay!

Oral Argument Advocacy and Navigating Virtual Mediation & Hearings

Tues. January 26 | 1pm-4:15pm | 3.0 Gen Self-Study Hrs Seminar #: 2021065 Self-Study Video Replay!

Real Property Update

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

U pdates

to

O nline S elf -S tudy CLE Did you know?

Due to COVID-19, the Supreme Court of Ohio has waived the cap on self-study courses, including webinars.

All Judges, Magistrates and Attorneys Can Complete

ALL CLE Credits ONLINE

For more information, visit: supremecourt.ohio.gov/AttySvcs/CLE/ To register for Self-Study CLE, visit: daybar.ce21.com/

www.daybar.org

January 2021Dayton Bar Briefs

15

From the Judges Desk

"Is the Court having any jury trials?"

I

get this question on a weekly basis from both attorneys and nonattorneys. It is a fair question; however, one that warrants the age-old answer, “it depends.” The easy answer is “yes” but in reality, the answer is far more challenging. Listen, there is no one more frustrated with the partial inability to conduct judicial tasks than the judges across the state of Ohio. When you are dealing with the court system and access (or lack thereof ) to justice, sure, concrete answers are often hard to come by. What we are all facing here is a challenge unlike many of us have ever seen before. The obstacles we are facing do not just remain within the court buildings, they spill over into our homes, families, friends and communities.

As I write this, Montgomery County remains purple, the state’s highest coronavirus alert level according to the Ohio public health advisory system, and a stay-at-home advisory is still in effect through December 17th. More narrowly, the “Covid walls” are seemingly closing in on our buildings and offices. Coworkers and other members of the legal community are testing positive for COVID-19 and are having to quarantine themselves due to exposure or potential exposure. Contact tracing is getting closer and closer. I do not write this to be an alarmist. This is just simply where we are. My message to the Dayton-area bar members, and the community, is that the Court is doing everything possible to keep our courtrooms safe.

We understand that our efforts may not be perfect and that there is always room for improvement, but ensuring access to justice while protecting the safety of community members is of utmost importance to the Court. We have been adjusting, and will continue to adjust, how we operate court functions. Truthfully, many judges, myself included, conducted jury trials in a safe and secure manner during the summer months as coronavirus numbers fell. Nonetheless, the balance between protecting the general welfare and public safety of those who enter into our courtrooms and the legal maxim “justice delayed, is justice denied” is not exactly a simple task.

With respect to Common Pleas Courts in Ohio, the larger counties of Franklin, Cuyahoga, Hamilton, for instance, have suspended 16

Dayton Bar Briefs January 2021

By The Honorable Gerald Parker Montgomery County Court of Common Pleas gerald.parker@montcourt.oh.gov| 937. 225.4448

jury trials completely.1 A large majority of other Common Pleas Courts have not completely suspended jury trials, but have made drastic adjustments in safety protocols. For instance, Lucas County moved their jury selection for upcoming trials to McMaster Auditorium, a 300-seat venue. In her statement on October 30, 2020, Ohio Supreme Court Justice Chief Maureen O’Connell regarded temporarily halting jury trials as a “smart move, given the current situation.”2 As you are aware, Montgomery County Common Pleas Court extended its most recent order suspending jury trials until December 31, 2020, EXCEPT “that jury trials may be conducted when unique and unavoidable circumstances are presented AND considered on a case-by-case basis.”3 Remember, your judge SHALL determine whether such trials will proceed and each judge has been and will continue to follow the COVID-19 mitigation protocols.

It is now less than three weeks until Christmas and 2020 is coming to a close. Colleagues, you will be reading this during the first part of January 2021 - assuming we made it. Wait, did we make it?

We have no idea what Montgomery County will look like in 2021. I honestly do not know what Montgomery County will look like next week. What I do know is that everyone plays a role in the Court’s ability to move cases forward and resolve cases whether it be by plea, settlement, or trial. So, to answer the question above, yes we are having jury trials, but the decision to proceed will ultimately depend on the case and the judge hearing the case. What I can say definitively is that maintaining the safety and well-being of our community while ensuring fair and timely access to justice will continue to be the Court’s priority as we venture through these difficult and uncertain times. Stay safe and hang in there.

ENDNOTES:

See https://www.supremecourt.ohio.gov/coronavirus/courts/default.aspx See http://www.courtnewsohio.gov/bench/2020/COVIDAdviceJudges_103020.asp#.

X8_Y3dhKiUk 3 See https://www.supremecourt.ohio.gov/coronavirus/courts/Montgomery/CPGen1 2

eral_072720.pdf

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HONORARY & SUSTAINING MEMBERSHIP H o n o r a r y 2020-2021 Once deemed an Honorary Member of the Association, the member is exempt from the payment of dues. However, there are those who take their honorary status in title only and continue to support the Association with contributions. We wish to thank and recognize the following exemplary members: *Indicates Honorary + Sustaining Membership!

Patrick W. Allen Esq. Richard Austin Esq. Robert P. Bartlett Jr. Esq. James E. Birt Esq. Jerome B. Bohman Esq. Robert A. Bostick Esq. James M. Brennan Esq. Hon. James A. Brogan Richard J. Chernesky Esq. Hon. William A. Clark Wayne H. Dawson Esq. Hon. Robert L. Deddens Robert J. Eilerman Esq. Herbert Ernst Jr. Esq. Lee C. Falke Esq. Hon. Patrick J. Foley Charles B. Fox Esq. Gary L. Froelich Esq. Richard K. Garman Esq. David C. Greer Esq. J. Robert Gross Esq. *Jonas J. Gruenberg Esq.

*Dennis E. Gump Esq. William H. Macbeth Esq. Thomas A. Hansen Esq. Hon. William W. MacMillan Jr. Irvin H. Harlamert Jr. Esq. Hon. John M. Meagher Thomas J. Harrington Esq. Alan F. Meckstroth Esq. John C. Harrison Esq. *Hon. Michael R. Merz *Lawrence W. Henke lll Esq. James J. Mulligan Esq. J. Michael Herr Esq. Jacob A. Myers Esq. Ralph E. Heyman Esq. Daniel A. Nagle Esq. James P. Hickey Esq. James T. Neef Esq. James B. Hochman Esq. Daniel J. Oâ&#x20AC;&#x2122;Brien Esq. Ruey F. Hodapp Jr. Esq. Dennis L. Patterson Esq. Thomas A. Holton Esq. Thomas G. Rawers Esq. Fred M. Izenson Esq. Hon. Walter Herbert Rice Thomas E. Jenks Esq. H. Pete Rife Esq. Ronald D. Keener Esq. John H. Rion Esq. R. James Kemper Esq. Paul B. Roderer Esq. *Hon. John W. Kessler Charles J. Roedersheimer Esq. James R. Kirkland Esq. William A. Rogers Jr. Esq. John R. Koverman Jr. Esq. Marshall D. Ruchman Esq. Leo F. Krebs Esq. Edwin L. Ryan Jr. Esq. Konrad Kuczak Esq. David A. Saphire Esq. Charles D. Lowe Esq. Richard C. Scharrer Esq.

Donald G. Schweller Esq. William H. Seall Esq. Jon M. Sebaly Esq. A. Mark Segreti Jr. Esq. Edward L. Shank Esq. Joel S. Shapiro Esq. William A. Shira lll Esq. Jeffrey B. Shulman Esq. Eric Silverberg Esq. *Ralph A. Skilken Jr. Esq. Charles W. Slicer Sr. Esq. Otto F. Stock Esq. Joseph V. Tassone Esq. Edward M. Taylor Jr. Esq. *Louis E. Tracy Esq. Mark F. Ware Esq. *Brian D. Weaver Esq. Dan D. Weiner Esq. James I. Weprin Esq. *Merle F. Wilberding Esq. Paul J. Winterhalter Esq. Hon. William H. Wolff Jr. Irvin J. Zipperstein Esq.

S u s ta i n i n g M e mb e r s The DBA would like to acknowledge the contributions made by the Sustaining Members for the 20202021 fiscal year. With voluntary payments over and above normal dues, Sustaining Members are essential to the work of the DBA. The funds provided by their membership allow continued support of programs and services that benefit members,the Greater Dayton legal community, and the legal profession.

Deborah J. Adler Esq.

Kevin W. Attkisson Esq.

Marty A. Beyer Esq.

Susan Blasik-Miller Esq.

Charles F. Allbery III Esq.

Gary W. Auman Esq.

Harry G. Beyoglides Jr., Esq.

Robert M. Blue Esq.

James T. Ambrose Esq.

Michelle D. Bach Esq.

R. Scott Blackburn Esq.

Richard A. Boucher Esq.

Debra B. Armanini Esq.

Theresa A. Baker Esq.

Amy R. Blair Esq.

Karen D. Bradley Esq.

18

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S u s ta i n i n g M e mb e r s 2020-2021

(CONT.)

Douglas Dustin Brannon Esq.

Hon. Jeffrey E. Froelich

Michael G. Leesman Esq.

Mag. Bonnie Beaman Rice

Dwight D. Brannon Esq.

R. Brent Gambill Esq.

William J. Leibold Esq.

Paul B. Roderer Jr. Esq.

Joan B. Brenner Esq.

Gregory M. Gantt Esq.

Gary J. Leppla Esq.

David Jackson Roth, Esq

Matthew D. Bruder Esq.

Charles F. Geidner Esq.

Dennis A. Lieberman Esq.

John M. Ruffolo Esq.

Hon. Anthony Capizzi

Caroline H. Gentry Esq.

Richard A. F. Lipowicz Esq.

Jason John Saldanha Esq.

Sam G. Caras Esq.

Daniel J. Gentry Esq.

Joshua R. Lounsbury Esq.

Seth W. Schanher Esq.

Frederick J. Caspar Esq.

Carl G. Goraleski Esq.

L. Anthony Lush Esq.

Steven P. Schmidt Esq.

William O. Cass Jr. Esq.

Hon. Barbara P. Gorman

Michelle M. Maciorowski Esq.

Alfred W. Schneble III Esq.

Mark R. Chilson Esq.

Gary W. Gottschlich Esq.

Barry W. Mancz Esq.

Richard A. Schwartz Esq.

Charles A. Claypool Esq.

David B. Grieshop Esq.

Douglas A. Mann Esq.

Carl D. Sherrets Esq.

Christopher H Cloud Esq.

Ted Gudorf Esq.

Laura Gabrielle Mariani Esq.

Hon. Richard S. Skelton

John M. Cloud Esq.

Christine M. Haaker Esq.

David W. Marquis Esq.

John A. Smalley Esq.

Brooks A. Compton Esq.

Hon. Michael T. Hall

M. Todd Marsh, Esq.

Bradley C. Smith Esq.

Christopher R. Conard Esq.

Chad D. Hansen Esq.

Laura Jean Martin Esq.

Edward M. Smith Esq.

W. Michael Conway Esq.

Jennifer Hann Harrison Esq.

Patrick Martin Esq.

R. Todd Smith Esq.

Shannon L. Costello Esq.

Aaron Paul Hartley Esq.

Dianne F. Marx Esq.

L. Frederick Sommer III Esq.

Christopher F. Cowan Esq.

Zachary S. Heck Esq.

Craig T. Matthews Esq.

Brian A. Sommers Esq.

Jeffrey T. Cox Esq.

James K. Hemenway Esq.

Gwen M. Mattison Esq.

Mary K.C. Soter Esq.

Sandra L. Cromwell

J. Stephen Herbert Esq.

Mag. Kristi A. McCartney

Lu Ann Stanley Esq.

F. Ann Crossman Esq.

Chip Herin III, Esq.

Stephen M. McHugh Esq.

Mark Edward Stone Esq.

Edie England Crump Esq.

Stanley A. Hirtle Esq.

Glen Richard McMurry Esq.

Jeffrey A. Swillinger Esq.

Mag. John A. Cumming

Jonathan Hollingsworth Esq.

Adam R.Mesaros Esq.

Richard A. Talda Esq.

Robert M. Curry Esq.

Carol Jacobi Holm Esq.

David P. Mesaros Esq.

Jennifer D. Theibert Esq.

James D. Dennis Esq.

Hon. Mary Kate Huffman

Stephen D. Miles Esq.

Ira H. Thomsen Esq.

Richard G. Denny, Esq.

Kenneth J. Ignozzi Esq.

Michael B. Miller Esq.

Merideth A. Trott Esq.

Martina M. Dillon, Esq.

Thomas J. Intili Esq.

John R. Mohr Esq.

Mark A. Tuss, Esq.

Marilyn R. Donoff Esq.

D. Jeffrey Ireland Esq.

Brian A. Muenchenbach Esq.

Timothy N. Tye Esq.

Daryl R. Douple Esq.

David E. Izor Esq.

Bruce I. Nicholson Esq.

Paul M. Ulrich Esq.

Jenna M. Downey Esq.

Matthew R. Jenkins Esq.

Victoria L. Nilles Esq.

Gayle P Vojtush, Esq.

Hon. Frederick W. Dressel

Keith R. Kearney Esq.

Wayne P. Novick Esq.

Michelle S. Vollmar Esq.

Trisha M. Duff Esq.

Thomas W. Kendo Jr. Esq.

Hon. Timothy N. O’Connell

H. Charles Wagner Esq.

Michael E. Dyer Esq.

Scott A. King Esq.

Stephen Patrick O’Keefe Esq.

Geoffrey P. Walker Esq.

William B. Elliott Esq.

Thomas A. Knoth Esq.

Timothy G. Pepper Esq.

Robert C. Walter Esq.

Gregory M. Ewers Esq

Julia C. Kolber Esq.

Nathaniel S. Peterson Esq.

Sam Warwar Esq.

Terence L. Fague Esq.

Karl G. Kordalis Esq.

David P. Pierce Esq.

Adam Robert Webber Esq.

Charles J. Faruki Esq.

James G. Kordik Esq.

Denise L. Platfoot Lacey Esq.

Amy R. Webster RP, CP

Jonathan E. Faulkner Esq.

Channing M. Kordik Esq.

John D. Poley Esq.

D K Wehner Esq.

Francesco A. Ferrante Esq.

David C. Korte Esq.

Vincent P. Popp Esq.

Cynthia Lynn Westwood Esq.

Kristin A. Finch Esq.

Edward M. Kress Esq.

Robert E. Portune Esq.

Thomas P. Whelley ll Esq.

James L. Finefrock Esq.

Hon. Michael W. Krumholtz

Cara W. Powers Esq.

Jeffrey A. Winwood Esq.

Marc L. Fleischauer Esq.

Judith A. LaMusga Esq.

Michael A. Rake Esq.

Hon. Mary L. Wiseman

Martin A. Foos Esq.

Thomas W. Langevin Esq.

Ted L. Ramirez, Esq.

Barbara A. Zappe

Stephen V. Freeze, Esq.

Laurence A. Lasky Esq.

Thomas G. Rauch Esq.

Patricia A. Zimmer Esq.

Patricia J. Friesinger Esq.

Erin Marie Laurito Esq.

Lynn M. Reynolds Esq.

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January 2021Dayton Bar Briefs

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50Year Honorees Year

The Last Installment of the 2020 Class of Fifty-Year Honorees

By David C. Greer Esq. DBA Editorial Board Bieser Greer & Landis LLP dcg@biesergreer.com | 937.250.7773

A

s the challenging year of 2020 heads to what Ted Lewis would have called a discontinuation, it is time to present to you some memories from the last two of our Fifty-Year Honorees. Sorry, there were no women or minority individuals in the Class of 1970. Even sorrier, many of the members of that class did not make it to the end of the fifty-year trail. Those who did, however, were and are remarkable and accomplished members of the bar. Enjoy their stories.

Lawrence W. Henke III.

I have a million memories of my experiences as an attorney since I was admitted to the Bar in November of 1970. I will limit myself to memories of my mentors.

I began my career as an Assistant Prosecuting Attorney in Lee Falke’s office. Lawyers always remember their early cases. The most highly publicized case in which I was involved in my life at the Prosecutor’s Office was the August 18, 1972 strangulation slaying of Theresa Lauricella, a Julienne High School teacher. It precipitated several trials and lots of press. The real excitement began, however, when Jack Patricoff asked me to join his law firm and get on the defense side of notable criminal cases.

I can vividly remember Jack holding court in his office in his house slippers and his thumbs around his suspenders, that is, if they weren’t dragging on the floor behind him. You can imagine Jack instructing me on some of the finer points of law as he circumnavigated his desk.

One of Jack’s cases that I recall involved a client who was charged with voyeurism and a felony crime of a sexual nature. We tried the case in Judge Gerald Baynes’ courtroom in Madison County sometime in the late 1970s. At lunchtime the prosecutor and his staff went to a local eatery while Jack and I stayed back at the law library in order to prepare our final arguments. Although this was Jack’s client, he insisted that I try the entire case. He took notes and instructed me on the finer points 20

Dayton Bar Briefs January 2021

of trial practice as the case progressed.

Although I had had experience with Judge Baynes as a law clerk with the Montgomery County Common Pleas Court, I never had the experience of a judge interrupting me during my final argument and asking the prosecutor and me to approach the bench. At the sidebar conference Judge Baynes informed me of where my arguments were going. He also assisted the prosecutor and instructed him to argue contra to where the court concluded I was headed. Needless to say, the Judge’s help for the prosecutor torpedoed and submarined a good part of my argument.

As a result of the judge’s interference Jack and I requested a recess during which we negotiated a reasonably fair outcome for our client.

The defendant would be required to serve six months in jail and pay a minimal fine. It was also agreed that there was no mandatory reporting for crimes of a sexual nature at that time. The interruption by Judge Baynes was certainly not the topic of any instruction I had ever received in law school or elsewhere. It was Jack’s request for a recess that helped carry the day in our client’s favor. Otherwise I can just imagine what the jury verdict would have been in Madison County. After the case was over the prosecutor readily admitted to me that he had no idea of what I was trying to accomplish in my final argument. Perhaps my argument would have been successful. Or perhaps it would have been a dud with the jury.

On another occasion my client went to Mr. Patricoff, and another client of Mr. Patricoff ’s had a conference with me regarding two stolen refrigerated trucks full of beef. How each client went to the office of the other attorney, no one will ever know. After listening to our respective client’s wives and relatives, it was apparent to both Jack and me that a person inside the meat processing plant had turned State’s evidence and sold out our clients. The case was in the far western region of Michigan in a city named Centerville.

When Jack and I arrived in Michigan, we made contact with a former prosecutor in that area named Caleb Enoch who practiced in a metropolis known as White Pigeon (a town of approximately 1,000 to 1,500 people).

We were extremely fortunate to have hired local counsel to assist us because the prosecutor and judge both thought that we represented defendants who had ties to the Mafia and had stolen delivery trucks with approximately $70,000 to $75,000 worth of meat and meat products.

Fortunately Mr. Enoch convinced the prosecutor and judge that our clients, the defendants in the criminal proceeding, were simply stupid individuals who wanted to steal a lot of meat products from a meat processing plant in the area. It also continued on page 21

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50 YEAR HONOREES: The Last Installment of the 2020 Class of Honorees continued from page 20 came to light that Jack’s guess was correct that a person inside the plant had notified the police because the Michigan State Police had videotaped the entire event, including the theft of the refrigerated trucks on the state highway, using infrared cameras. Jack, in his deep raspy-like voice made a compelling argument to the judge after our negotiated pleas, and our clients only served two and a half years.

Another criminal case in which I was involved with Jack took place in the Preble County Common Pleas Court in Eaton, Ohio. After the case was resolved, Jack received a check from his client. The check was written on a local bank in Eaton. Before we reached the city limits Jack stopped at the bank and we went inside to cash the check. Needless to say, there was not enough money in our client’s bank account to permit the check to clear. Jack then looked at me and asked “Did you bring some money with you?” Fortunately for me I had approximately $250.00 cash in my pocket. At that point Jack took my money, asked the teller if she were to deposit the $250.00 in the account would she cash the client’s check. She responded in the affirmative. I thereby learned another lesson which I had not learned in law school. Age and treachery will overcome youth and skill and brains every day.

As I was driving out of town Jack divided up the money and gave me half. At that point I immediately reminded Jack that he had to pay me my $250.00 that he had deposited into the client’s account and then split the remainder. Jack laughed and said “Oops, I forgot. You are right.” Years later I used the same experience to cash a check when my client had insufficient funds to cash the check by simply depositing the necessary amount into the account.

Another incident involving Jack Patricoff was simply astounding to a naïve young lad like myself. Approximately six to nine months after I became an associate of Jack Patricoff he introduced me to a client of his and the client began weaving a tale of woe to us. After about thirty minutes Mr. Patricoff asked the client “Can you afford my services?”

The client said, “I don’t know. How much will this case cost?” Jack then asked the individual if he had any money on his person and the individual responded “I only have about $50.00 in my wallet.” The gentleman produced his wallet and gave Mr. Patricoff the money. Mr. Patricoff accepted the money and then told the individual to take off his shoes. When the individual took off his shoes, Jack discovered that he had a one hundred dollar bill in the bottom of each shoe. It was another educational moment which I had not encountered in law school.

Here are a few recollections of Gale Everman, a local attorney and friend of Charles Buck. Gale had invited me to his office at noon and promised to pay for lunch. Shortly after I arrived at Gale’s office a gentleman came in and said he needed an attorney for two OVIs. That individual reached in his pocket and was in the process of giving Gale a retainer of $250.00. Gale told him “My young friend and I are going to lunch. You cannot afford a good lawyer with two OVIs. If you want me to represent you, you need to go to the bank and get a whole bunch of money.” We went to lunch and Gale remarked “That is the last we will see of that individual.”

When we returned from lunch Marsha, Gale’s secretary, quickly ushered us into Gale’s office and said that the individual who wanted Gale to represent him for two OVIs had gone to the bank and was sitting in the reception area. Marsha showed Gale a retainer that was somewhere between $3,000 and $4,000.00. Then the individual stormed into Gale’s office and said “There’s your retainer. Now you get busy on my case you &%*$#.”

It has been a lively fifty years with more rabbits jumping out of the magician’s hat than you could find on the entire continent of Australia. www.daybar.org

Neil F. Freund

Thomas Jefferson once said, “The most valuable of all talents is that of never using two words when one will do.”

William Shakespeare said, “As adversaries do in the law – strive mightily, but eat and drink as friends.”

These quotes were especially important in my career as a lawyer trying both civil and criminal cases. When I was young and inexperienced, I was aggressive by nature and knew little about effectively defending a civil or criminal case. The longer the brief, the better! The more disrespect to an opponent, the better! Fortunately, through mistakes and an amazing mentor, I learned to argue concisely and to treat my opposing counsel with respect and professionalism.

Upon completion of law school, I was lucky enough to get my first job at Young & Alexander. Bob Young was a Harvard law graduate and Bob Alexander was an Ohio State graduate. Bob Alexander was a wonderful and kind man. He was a true gentleman and was loved by the Bar because of his calm and quiet demeanor. We immediately bonded and he became my mentor. He frequently came over to the Common Pleas Court to watch me try cases. Early in my career, Bob came into my office and quietly told me my cross-exam of a witness “was a bit harsh and aggressive.” He was right. I learned a lot from him and changed my style as a result. I toned down the aggression and adopted a more friendly but direct approach. Not only did I get more from the witness but juries also related well to me. All lawyers need a mentor like Bob Alexander.

Once, I was defending an excessive use of force case in federal court when a visiting judge told me I was wasting his and the jury’s time with a lengthy cross examination. Although my client prevailed, I evaluated my performance and realized he was right. Shorter was better. The jury’s attention span was relatively brief and if I couldn’t make an important point rather quickly, I was unlikely to make it at all.

After Bob Alexander and Bob Young’s deaths, I decided to leave Young & Alexander and start my own practice. Stephen Freeze and Gordon Arnold agreed to go with me and we started Freund Freeze and Arnold with four associates. We eventually hired more lawyers and expanded from Dayton to become a regional law firm with additional offices in Columbus and Cincinnati.

I loved the practice of law and never considered it “work.” I was given many professional opportunities. I was honored to be President of the Dayton Bar Association at an early age. I enjoyed serving as President of a statewide defense organization, the Ohio Association of Civil Trial Attorneys. I was humbled to be invited to become a Fellow of the American College of Trial Lawyer, the most exclusive and preeminent group of trial lawyers. What a great trip! Now that I am retired, I still tell my friends and lawyer colleagues: (a) I loved the practice of law and never considered it work; (b) I made many good friends practicing law.

So thank you my fellow lawyers and legal professionals. Thank you to all past and current lawyers and staff of Freund, Freeze and Arnold.

Now it is time to say goodbye as a practicing lawyer and move on to another chapter of my life. I will sorely miss you..

January 2021Dayton Bar Briefs

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OLAP

When to Call OLAP

By Scott R. Mote Esq. Executive Director OLAP smote@ohiolap.org | 800).348.4343

T

he Ohio Lawyers Assistance Program receives calls about many different types of issues that are common in the legal profession.

The following are some common scenarios we receive. These are meant for you to see how OLAP works and why it is important to understand the process. If you notice any of these about yourself or a colleague, it is time to call OLAP.

Concern about another colleague’s erratic behavior

Managing partner Tim of a 10-lawyer firm is at his wit’s end with a partner, Dave. Dave’s recent behavior has been erratic, and Tim calls OLAP for direction. Tim wonders if Dave is drinking again, because, three years ago, they did an intervention on Dave. He did well until about six weeks ago, when his behavior changed. Dave went from being calm and motivated to short-tempered, depressed and quiet. Yesterday, a client called to complain that Dave had missed a Zoom meeting.

The OLAP staff convened to discuss a plan of care for Dave. It is important to understand that OLAP does not provide direct treatment.

It provides recommendations. It sounded like Dave has relapsed, but without more facts, OLAP recommended that Tim do some more checking before doing another intervention.

If more problems are confirmed, OLAP will facilitate an intervention, treatment and an OLAP contract that provides support and monitoring.

Cognitive decline

Sam called OLAP about his office-sharing mate, Gene, a 74-year-old sole practitioner. Their shared office administrator told Sam that Gene has nine open cases in probate court, and six of them have problems with timely filing. He has been cited to appear on all of them, and has promised to get things cleaned up. The new due dates have come and gone, and it's time to send citations again. Two clients have called the court, complaining that Gene is not responsive to their requests to get their parents' estates finished. Sam has known Gene for 20 years, and has watched his mental deterioration.

As lawyers, we have a responsibility to protect the public and maintain the integrity of the legal profession, but what do you do if you witness an attorney or judge who you think is suffering from age-related cognitive decline that is affecting their ability to practice competently?

The short answer is to report the person. See Prof. Cond. R. 8.3; Judicial Cond. R. 2.14. The goal is certainly two-fold: protect the public from an impaired lawyer, and get the lawyer or judge the help they need.

Law student

Tanya started drinking heavily in undergraduate school. She moved to Ohio to attend law school and soon learned that law school was cutthroat and not as easy as undergrad. She missed her family, didn’t have many friends in school, and didn’t do well in classes, so she resorted to drinking, even though the whole reason she moved to Ohio was to get away from the stigma of being a drunk.

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Dayton Bar Briefs January 2021

Her grades soon began to suffer and she was put on academic probation. She became depressed and drank to cope with her depression. She got to the point of considering suicide as a final solution to a temporary problem, and she was involuntarily hospitalized.

Shortly after being hospitalized, Tanya called a professor and told him about her situation. The professor recommended the Ohio Lawyers Assistance Program. She called OLAP, went in, and had an assessment that made her realize her pattern of drinking had progressed. OLAP recommended an intense outpatient program, and Tanya started her recovery.

Tanya got sober in the second semester of her second year of law school and ended up graduating cum laude.

Stress affecting judge’s life

Judge Steve is having issues with alcohol and trauma, and his wife made him call OLAP after his weekend of binge drinking. On Friday, he went out drinking and drove home, and scared his wife. Saturday he went to the Buckeyes game, and didn’t get home until 2 a.m. He is not sure how he got home. On Sunday, he was supposed to go to a family event, but didn’t feel well enough, and he drank at home instead.

During Steve’s call with OLAP, he admits that he can’t control his drinking once he starts. Steve is willing to come in for an assessment, but worries about being labeled an “alcoholic” and doesn’t want to be branded as one. OLAP reassures Steve that OLAP is 100% confidential, so no one will ever know that he called.

After Steve’s assessment at OLAP, the OLAP team determined that Steve has trauma from a case that dealt with child pornography and trafficking, and he needs to learn how to cope with it—without alcohol. OLAP recommended that Steve engage his wife in the treatment program and that he get trauma-specific therapy.

A concerned friend worried about suicide

Mindy called OLAP about her friend and colleague Susan, who has been failing to cover her workload, is prone to mood swings and has been acting weird in general. It seems like she’s drugged, she has lost weight

continued on page 23

937.222.7902

OLAP: When to Call OLAP continued from page 22

and intellectual sharpness. She hasn’t been getting her work done, and is becoming less and less dependable. Susan gets confused about the law and the cases. She seems depressed, and makes references to “ending it all,” “she just wants to go away,” and other comments that lead Mindy to believe that Susan is contemplating suicide.

Mindy was hesitant to call OLAP because she doesn’t want Susan to get fired, but OLAP assures her that her call is completely confidential.

OLAP explains to Mindy that when worried about a friend committing suicide, there are three steps you should take. 1. Call law enforcement, and ask them to conduct a well visit at Susan’s home. 2. If Susan complies, take her to the emergency room. 3. If she refuses, stay with her and call the National Suicide Prevention Hotline (800) 273-8255.

OLAP encourages Mindy to get Susan to call them. OLAP also recommends that Susan get in touch with her doctor to rule out a physical ailment. If the doctor rules this out, OLAP can look at behavioral issues.

Susan doesn’t think she has a problem and does not want to call OLAP, so OLAP gives Mindy information on treatment to give to Susan. It is now in Susan’s hands to seek help from OLAP.

When you don’t seek help

A paralegal called OLAP several times concerned about her boss’s drinking problem and lack of professionalism. The paralegal did not want to give the attorney’s name because they had been friends for 20+ years, and she didn’t want to lose her job. The last time the paralegal called, she was concerned because the attorney did not show up for a client meeting. The paralegal called the attorney’s brother to let him know that she did not show up to work. The brother went to the attorney’s house, and he found her dead. It was too late. If only OLAP had known the attorney’s identity, we could have intervened and helped her get the treatment she needed.

OLAP is 100% confidential. This means that the person you are concerned about will never know it was you who called, unless you give us permission to identify you. You are doing the best thing for the person.

You wouldn’t let this person die in front of you if he/she was having a heart attack, right? So why would you let them suffer from something they cannot control?

www.daybar.org

R.L. EMMONS AND ASSOCIATES, INC. 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

January 2021Dayton Bar Briefs

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Reach your targeted audience and advertise with the DBA!

DBA Classified Ad Rules

• Classified ads are accepted each month, September through July 1 • Copy and payment must be received by the first day of the month preceding the month of publication • Bar Briefs Editorial Board reserves the right to refuse any ad • Classified ads of greater length are allowed • Members: $20 per 25 words | NonMembers: $30 per 25 words • Additional $5 for DBA reply box

January Classifieds EXPERIENCED CIVIL/BUSINESS LITIGATION ATTORNEY NEEDED Green & Green, Lawyers, an AV-rated regional firm with offices in Dayton's Performance Place, is accepting applications from well-credentialed attorneys with three to five years' experience in civil litigation and business law. Applicants with expertise in torts, municipal liability, employment,construction, business transactions and commercial law preferred. Strong academic credentials, research and analytical ability and excellent orala nd written communication skills required. We offer a supportive work environment, competitive compensation, parking and participation in health, retirement and disability plans. Please forward c.v., writing samples, references and compensation expectations to Green & Green, Lawyers, 109 N. Main St., Suite 800, Dayton, OH 45402.

LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at: 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 Dennis J. Langer Retired Common Pleas Judge LangerMediation.com (937) 367-4776

MEDIATIONS Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 hazlettjeffrey@gmail.com nadn.org/jeffrey-hazlett

upcoming Chancery Club Luncheons

Join us monthly for our upcoming year of luncheons!

The Chancery Club will be held virtually until further notice and we still have lined up great speakers & content.

Grab lunch from your kitchen, or take a moment in your office to network and catch up with one another!

Daily Court Reporter..................19 Eikenbary Trust.........................22

Virtual Chancery Club Luncheon Dates:

Ferneding Insurance..................21

February 5th March 12th April 9th May 7th

LCNB Bank..................................9 NFP/Rogers McNay Insurance.....23 OBLIC............................back cover R.L. Emmons & Associates..........23

RSVP to Chris: calbrektson@daybar.org 24

Ad Index

Dayton Bar Briefs January 2021

Trisha M. Duff - Mediations........13

937.222.7902

L aw -R elated O rganizations Dayton Bar Foundation

Your Gift Will Help

STRENGTHEN

Our Foundation.

T

he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community.

Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to: - Access for Justice - Advocates For Basic Legal Equality (ABLE) - Catholic Social Services of The Miami Valley - Greater Dayton Volunteer Lawyers Project (GDVLP) - Law & Leadership Institute - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Miami University Center Pre-Law Center - Wills for Heroes

DONATE online: daybar.org/foundation Make a donation now and help us make a difference through our programs.

Gifts may also be made in honor or in memory of family, friends or colleagues.

For more information about the Dayton Foundation:

DBF & DBA CEO Jennifer Otchy jotchy@daybar.org | 937-222-7902 = = = = = = = = = = = = = = = == = = = = = = = = = = = = = = = = = =

DETACH AND RE­T URN

=====================================

To: Dayton Bar Foundation, 600 Performance Place, 109 N. Main St., Dayton OH 45402-1129 I am pleased to support the Dayton Bar Foundation with a gift of:

 $50  $100  $250  $500  Other $________________________________ Method of payment:

 Check Enclosed  Charge my:

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Signature: ___________________________________________________________________________

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Firm: ______________________________________________ Address: ___________________________________________ ____________________________________________ Phone: ____________________________________________ Email:_____________________________________________

(AS SHOWN ON CREDIT CARD)

My gift is

 in memory of

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_________________________________________________________________________________________________

Please notify: ____________________________________________________________________________________________________________________________________ Address: ________________________________________________________________________________________________________________________________________ www.daybar.org

January 2021Dayton Bar Briefs

25

GLreater D aytonOV olunteer L awyers aw -R elated rganizations University of Dayton School of Law

Greater Dayton Volunteer Lawyers Project The Greater Dayton Volunteer Lawyers Project (VLP) wishes to THANK all of the Volunteers who have devoted time and effort in 2020, towards helping them reach there mission to provide pro bono civil legal services to benefit persons with limited financial resources.

Volunteers Needed!

Benefits •Gain Experience in the Courtroom •Gain Experience in a Particular Area of Law •Networking Opportunities •CLE Credit for Service

Get in Touch

•Help Low-Income Clients in the Community •Mentorship Opportunities •Volunteer Experience •Informational Seminars and Events

www.GDVLP.ORG (937) 461.3857 109 N Main Street, Suite 610 Dayton, OH 45402 email: gdvlp@gdvlp.org

Follow us on Social Media

@GDVLP 26

Dayton Bar Briefs January 2021

937.222.7902

M embers O n T he M ove Dinsmore and Shohl LLP has welcomed Matthew Bakota to its Dayton office as an of counsel attorney.

Bakota, who has been practicing for 15 years, and will continue his work in the areas of management-side labor and employment law and business litigation. He is certified as a specialist in labor and employment law by BAKOTA the Ohio State Bar Association and as a professional in human resources (PHR) through HRCI. Bakota also regularly represents property owners in the defense of administrative fair housing complaints and related litigation. Bakota has been recognized for several years as an Ohio/Kentucky Super Lawyer. He currently serves as president of the Miami Valley Human Resources Association.

Ronald L. Burdge has again been named the only 2021 Lemon Law Ohio Super Lawyer by Thomson & Reuters New York whose practice is limited to only representing consumers, making it his 14th year of honors. Burdge is a motor vehicle and recreational vehicle Lemon Law and Consumer Law attorney in Dayton BURDGE and founder of the Burdge Law Office. The "Super Lawyer" honor is only awarded to Ohio’s top attorneys in their field. His practice concentrates on motor vehicle Lemon Law, recreational vehicle lemon law, defective products, vehicle sales fraud, and Consumer Protection. Burdge has represented over 7,000 consumers in Ohio and elsewhere.

Carl D. Sherrets, owner of Sherrets Law Offices, LLC in Kettering, is pleased to announce that he has been selected to be included in The Best Lawyers in America for 2021. Carl has also, for the tenth year in a row, been selected for inclusion in Ohio Super Lawyers.

He has been recognized as an AV Preeminent rated SHERRETS attorney by Martindale Hubbell since 2002. Carl is an OSBA Board Certified Estate Planning & Probate Specialist as well as an Adjunct Professor at the University of Dayton School of Law teaching Wills, Trusts and Estates for the past thirteen years.

RHINEHART

WRIGHT

Erin Rhinehart and Brian Wright have been named Co-Managing Partners of Faruki PLL (Faruki+), a premier business litigation firm with offices in Dayton and Cincinnati, Ohio, that specializes in complex commercial litigation on behalf of Fortune 500 companies and large privately held businesses throughout the country. Collectively with Faruki+ for more than 30 years, Rhinehart and Wright expand their partnership roles to lead the 19-attorney firm, marking its transition to the next generation of leadership that will carry on the legacy and vision of the firm’s founding partners. The pair succeeds Jeff Ireland, one of the firm’s founders and its Managing Partner since 2015. Ireland will remain a partner with the firm but is stepping back from managing partner duties to dedicate more time to serving the firm's clients. “Erin and Brian have been tremendous leaders at the firm,” Ireland said. “They are accomplished litigators who have contributed meaningfully to our growth, and their vision and embodiment of our core values – excellence, respect, candor, and service – make them the ideal team to lead Faruki+ into the future. I am proud to pass the baton to these proven and capable leaders.”

Rhinehart joined the firm in 2004. Her litigation practice focuses on class action defense, breach of contract, non-compete, tortious interference, and health care and environmental litigation matters. She also leads the firm's media and communications practice.

Wright first joined Faruki+ in 2002 and returned to the firm in 2019 after spending three years as General Counsel and VP of Innovation with longtime client Henny Penny. He litigates in Ohio and across the US dealing with individual and class action disputes involving business matters.

If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you!

• News of CLE presentations & political announcements are not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available

GREEN

LYNCH

MOORE

WAGNER

Green & Green, Lawyers, LLC, is pleased to announce that Thomas M. Green, Jane M. Lynch, Erin B. Moore and Jared A. Wagner were recognized as Ohio Super Lawyers® for 2021.

Thomas M. Green has been recognized as an Ohio Super Lawyers® starting in 2009 and practices in the areas of commercial litigation, medical malpractice and complex injury litigation.

Jane M. Lynch has been recognized as an Ohio Super Lawyers® since 2006, and is an AV Preeminent rated attorney by Martindale Hubble®, and recognized again as a Best Lawyer in America© 2020 in the areas of Civil Rights Law and Litigation Insurance.

www.daybar.org

Contact Shayla to submit your announcement or ad: publications@daybar.org | 937-222-7902

Erin B. Moore is also an AV Preeminent attorney by Martindale Hubble®, and has been recognized as an Ohio Super Lawyers® since 2017 and also practices in construction law, governmental liability law, and general insurance defense matters. Ms. Moore and Jared Wagner also practice in construction law, governmental liability law, and general insurance defense matters.

Jared A. Wagner is also an AV Preeminent attorney by Martindale Hubble®, and has been recognized as an Ohio Super Lawyers® since 2017 and also practices in construction law, governmental liability law, gun rights law, and general insurance defense matters.

Green and Green, Lawyers, LLC, is a Best Lawyers of America© "Best Law Firm" for 2020.

January 2021 Dayton Bar Briefs

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