Dayton Bar Briefs Digital | JAN/FEB 2023 Vol. 72 No. 3

JAN/FEB 2023

BarBriefs

The Off icial Magazine of the DBA

DBA Section

MEMBERSHIP Join the conversation in the new year!

trustee's message Our Obligation to Enhance and Preserve a Thriving Legal Community pg 4

social justice

barrister in memoriam

A Call to Social Justice

Michael L. Monta Esq.

pg 18

pg 24

BarBriefs DBA Board of Trustees 2022-2023 Hon. Caroline H. Gentry President

Anne P. Keeton First Vice President

4 TRUSTEE'S

Second Vice President

20

Michael J. Jurek

JUDGE'S

Features:

Ebony D. Davenport

6

Lauren K. Epperley Member–at–Large

James H. Greer Member–at–Large

Brian L. Wright Member–at–Large

Merle F. Wilberding Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

DAYTON 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 DBA office. The DAYTON BAR BRIEFS is published bi-monthly September/October through July/August.

Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy Chief Executive Officer Shayla M. Eggleton Director, Communications & Membership Phone: 937.222.7902 www.daybar.org The contents expressed in the publication of DAYTON BAR BRIEFS do not reflect the official position of the DBA. 2

DAYTON Bar Briefs | JAN/FEB 2023

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Our Obligation to Enhance and Preserve a Thriving Legal Community

By Brian D. Wright Esq., DBA Member-at-Large | Faruki PLL

Civility and Professionalism in the Montgomery County Courts

By The Honorable Judge Kimberly A. Melnick. | Montgomery County Common Pleas Court

DESK

Secretary Member–at–Large

no.

Columns:

MESSAGE

Treasurer

72

jan/feb 2023

Contents

Hon. Michael J. Newman Jamar T. King

vol.

BARRISTERS OF THE MONTH

Lisa A. & Michael W. Sandner Esq.

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

8

Passing the Bar in the Midst of a Global Pandemic: A memoir.

10

The FLSA and Independent Contractors: A Perpetual Pendulum for Ohio Employers

DIVERSITY ISSUES

EMPLOYMENT LAW

By Ashton J. Hood Esq. | Office of Ohio Attorney General Dave Yost

By Marc L. Fleischauer Esq. | Coolidge Wall Co., LPA

12

Jordan L. Foster Esq. & Zion U. Savory Esq. Thompson Hine LLP

14

Committee Update from the Chairs

RISING STARS

JUVENILE LAW

By Zachary B. White Esq.. | Coolidge Wall Co., LPA

By Misty M. Connors Esq. | Connors Law Office and Sara M. Barry Esq.| Barry Law LLC

U.S. Magistrate Judge, Southern District of Ohio

18

A Call to Social Justice

24

Michael L. Monta Esq.

SOCIAL JUSTICE

BARRISTER IN MEMORIAM

26

By Bonnie Beaman Rice, Social Justice Initiative Chair Carol

By Mark A. Tuss Esq.

Understanding the Lack of Dayton Representation on the Ohio Supreme Court

By Nathaniel M. Fouch Esq., DBA Editorial Board | Ohio Court of Appeals - 12th District

ine_Gentry@ohsd.uscourts.gov

Also In This Issue:

15 DBA January/February Section Meetings 16 DBA CLE Offerings Save these dates 22 2022-2023 DBA Sustaining & Honorary Sustaining Members 23 2022-2023 DBA 100% Club Firms & Organizations 31 Classifieds, Members on the Move & Ad Index

2022-2023

DBA ANNUAL PARTNERSHIP Provide 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.

DBA ANNUAL PARTNERS RECEIVE:

• • • •

Advertising & Marketing Exposure Event Sponsorships & Attendee Registrations CLE Discounts Concierge Service

Thank You 2022-2023 DBA Annual Partners

FARUKI+ ficlaw.com

Thompson Hine LLP thompsonhine.com

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

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.

For More Details on Becoming a DBA Annual Partner Contact: JENNIFER OTCHY, DBA CEO | jotchy@daybar.org | (937) 222.1364 JAN/FEB 2023 | DAYTON Bar Briefs

3

Trustee's Message

Our Obligation to Enhance and Preserve a Thriving Legal Community D

ayton is a special place to practice law. Writing that "Dayton is a special place" (almost) feels cliché. As a two-time transplant (moved here, then away, and then back), I have experienced different legal communities. What makes the Dayton legal community different?

Is it just the "goldilocks" principle? In the "The Three Bears," Goldilocks tastes three bowls of porridge and prefers one that is neither too hot nor too cold. The goldilocks principle is the concept of "just the right amount." Dayton is big enough for sophisticated legal work, but small enough to require a certain amount of friendliness and graciousness (and good behavior) to preserve an excellent reputation. Is the Dayton legal community "just the right size" to make it special? Maybe.

Could it just be "Midwest nice"? People in Ohio have a reputation for being hardworking, helpful, honest, proud yet modest, and unafraid to get their hands dirty. As a native New Yorker, Daytonians display an unusual combination of the right levels of openness, extraversion, agreeableness, and conscientiousness as compared to other areas of the country. Is it the temperament and personality of members of the Dayton legal community that makes it special? Maybe.

I think it is something else. It might be the Dayton Bar Association (DBA). Generations of Dayton lawyers prioritized the DBA and made it the center of the legal community. They developed a certain amount of kinship among DBA members. The camaraderie and connectedness of DBA members make Dayton a special place to practice law.

As we have (and continue to) benefited from this special place, we have an obligation to make sure that the local legal community contin4

DAYTON Bar Briefs |

JAN/FEB 2023

By Brian D Wright Esq. DBA Member-at-Large Faruki PLL bwright@ficlaw.com

ues to thrive for future generations. At its core, a community is just a group of people present in the same place that share common attitudes.

After nearly three years where COVID ravaged our communities, the DBA simply needs you to be present and part of the local legal community.

We need you to be present to connect. The DBA offers members several opportunities where members can connect with each other. We can connect by offering our own stories and personal experiences. We can offer each other insights and understanding. We can have authentic conversations.

We need you to be present to support. The DBA offers members the opportunity to support each other by organizing interactions and collaboration. We can explore new possibilities, solve challenging problems, and create new and mutually beneficial opportunities. We can organize around purposeful actions that develop tangible results.

We need you to be present to educate. The DBA offers members the opportunity to share information about issues important to the practice of law and to capture and share existing knowledge. We can improve our practices. We can identify solutions to common problems.

We can take part in a process to collect and evaluate best practices.

Everyone benefits from practicing law in Dayton. It is a special place because of the hard work of those that came before us. We have an obligation to keep Dayton a thriving legal community with the DBA at its center. We need you to ensure that the Dayton continues to be a special place for future generations of lawyers to practice law.

HERBERT M. EIKENBARY

Trust

R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459

Professional Investigative and Legal Support Services Firm

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

 Polygraph  Asset Searches  Criminal Defense  Process Service  Witness Locates / Interviews  Surveillance  Civil Case Prep  General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

JAN/FEB 2023 | DAYTON Bar Briefs

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Feature

Barristers of the Month:

Lisa A. & Michael W. Sandner

S

aint Valentine’s Day 1992. A young man and a young woman first met when they became first-year students at the University of Dayton School of Law in the fall of 1991. By February 14, 1992 they had forged a friendship through that common experience, common childhood backgrounds, and other components of compatibility too mysterious to articulate.

Lisa grew up in a city south of Albany, New York. She obtained her college degree at Fordham University where she majored in American Studies, a discipline which opens countless doors to the macrocosm of what it means to be an American. Mike grew up in another upper New York State city located about forty-five miles south of Lisa’s birthplace. He and his family moved to Connecticut, and he obtained his college degree at Connecticut College where, among other subjects, he studied the work of William Faulkner who created a mythical Mississippi microcosm of what it means to be an American. In various books Faulkner also explored

rs' Cup! Live from the Breede 6

DAYTON Bar Briefs | JAN/FEB 2023

Greetings from the Grand Canyon February 14, 1993 came over the horithe unexplainable magnetism which draws a zon as another opportunity for a fancy and particular man to a particular woman. romantic Valentine’s Day dinner. When they Mike took his new friend Lisa to a Valarrived at the entine’s Day dinner at a first-class Dayton restaurant on February 14, 1992. He has not restaurant of their choice after one of them revealed where he obtained the financial re- had Civil Trial Practice class, however, it was sources to do so, nor has he revealed the items too late. The kitchen was closed, and they on the menu or the events of the evening. had to catch their celebration in a less exotic venue.

Needless to say, the mutual friendship Saint Valentine’s Day 1994. Shortly before and mutual encounter with law Lisa and Mike started their law school advenschool were both progressing nicely.

Saint Valentine’s Day 1993. Mike tures, the Iron Curtain had fallen and for a moment it looked like world peace was a posand Lisa had become a two-person sibility. Alas, world events deteriorated raplegal study group in which each idly. By 1993 Bosnia and Serbia and Croatia sharpened the skills of the other. had turned into killing fields. 1993 was also Friendship had ripened into affection and into an openness in which even marked by a terrorist bombing at the World criticism was accepted with grace. As Trade Center which killed six, wounded they were practicing oral arguments 1,000, and served as a prelude to the terrorist for a moot court presentation, Lisa destruction of the Towers in 2001. As with informed Mike that his style of pre most of us, the only rational response available sentation appeared arrogant. A little to Mike and Lisa to rumblings from history’s touch of humility makes the whole dark side was to follow Voltaire’s advice and world kin, and Mike has developed a cultivate their own little gardens. courtroom style in which his argu The Valentine’s Day dinner celebration ments are presented with conviction was undoubtedly a little subdued in 1994, but and without the overbearing strident friendship had progressed through affection to tone that often mars the forensic ef abiding love. Graduation from law school and forts of others. taking the Ohio Bar Exam in the summer of 1994 were followed by a wedding. Nothing in

life is perfect, and the ceremony had to be put off for a week to avoid the 25th anniversary of the Woodstock Music Festival. At least the ceremony was not interrupted by cacophonous music and cavorting crowds of stoned and undressed celebrants.

In their student years at the University of Dayton Law School Lisa and Mike not only fell in love with each other. They fell in love with Dayton.

They have spent the rest of their lives here and have become among the most fanatic fans of UD Basketball. That is saying quite a lot since that basketball team has more than quite a lot of fanatic fans. They live in Springboro and have raised three children here, two daughters and a son.

Lisa and Mike have spent the past two decades following the athletic and other activities of their children. They have divided their own athletic activities with Lisa more involved in tennis and Mike more involved in golf. The family makes annual excursions to visit Lisa’s family in Kingston, New York and to visit Mike’s family which is now centered in Scituate, Massachusetts.

Both of this month’s Barristers have followed their law school education with impressive careers in the law. Mike spent a year as a law clerk for Judge Grady on the Second District Court of Appeals, and he emulates Judge Grady’s calm, personable approach in his own style as a lawyer.

After his year with Judge Grady, he joined the fine Dayton law firm of Pickrel, Schaeffer & Ebeling. As a litigation partner and President of that firm, he focuses his trial practice on cases involving commercial, contract and construction issues.

Lisa has spent her professional career representing the University where she obtained her legal education. She serves as Deputy General Counsel for the University of Dayton. She has primary responsibility in the University’s policy development, student affairs and student conduct, privacy issues, international travel issues, threat assessment, risk management, contracts and business transactions, and public records.

The Sandners have discovered – as have we all – that the law can be a jealous mistress. They have also discovered that the law can sometimes be an excellent and loving matchmaker.

n with versity graduatio West Virginia Uni son Michael and daughter Molly, . daughter Madison

By Dave C. Greer Esq. Bieser Greer & Landis, LLP dcg@biesergreer.com

JAN/FEB 2023 | DAYTON Bar Briefs

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Diversity Issues

Passing the Bar in the Midst of a Global Pandemic: A memoir.

By Ashton J. Hood Esq., Co-Chair Diversity Issues | Office of Ohio Attorney General Dave Yost | Ashton.Hood@OhioAGO.gov

A

fter graduating from the University of Cincinnati’s College of Law I distinctly remember the excitement I felt about where my life would take me in the months to come. After a valiant effort during the July exam, I had learned about many of my pitfalls. By the holiday season of 2019 I had a renewed sense of purpose. During my personal pep talk after the initial disappointment from the July exam’s results, I had a sudden sense of renewed confidence. I quietly boasted to myself, “this is it- my chance to finally join the ranks of the esteemed professionals here in the great state of Ohio fortunate enough to call themselves ‘Attorney at law!’ Man, what an opportunity I have in front of me.” If I had only known then what I was getting myself into, I’m not so sure I would have kept going…

In February of 2020 I found myself in the midst of one of the most critical times of my life on the precipice of a global meltdown. At the time, no one could have foreseen what would eventually become a permanent change in the way we conduct human interaction. I recall the night before the bar exam taking place in Wilmington, Ohio on a cold February Tuesday. I tuned in to NPR’s WYSO radio station to take my mind off of the anxiety of memorizing the difference between vicarious liability and assumption of risks for the torts portion of the exam. To my surprise, I heard President Trump finally acknowledging that the Coronavirus was a real biohazard originating in the Wuhan province of China. For weeks leading up to exam day I had passively seen news reports showing people navigating TSA checkpoints with masks, and Americans largely dismissing the rising global concerns as a problem of no consequence taking place across the pond. To be frank, during this abnormal period of uncertainty the only energy I could personally devote to the threat of the Coronavirus was a casual glimpse into the national media’s whispers about how the United States was handling the spread.

When bar exam day one finally came, I encountered a snowy drive and freezing temperatures on the way to the Roberts Center with over two hundred other nervous souls who had also committed to taking the plunge into this highly regarded profession. There were no masks present, plenty of nervous chatter, and a small battalion of retiree volunteers with their index fingers pressed firmly to their lips warning us examinees of the need for deafening silence. You could cut the tension in the room with a butter knife. As the proctor gave the exam instructions I heard what I thought were several nervous coughs. I sat through both days of the exam and felt confident that I had nailed the task and would shortly be admitted to the practice of law in the spring. As my fiancé at the time had planned, we took a short vacation to Seattle, Washington to explore the Pacific Northwest a week following the exam. The day our flight returned back to Dayton, the news had several stories running about the first cases of COVID-19 being reported in of all places, SEATTLE! At that time, no tests for COVID-19 were in public consumption. Neither of us had any of the purported symptoms. We simply disclosed to our employers that we had travelled to Seattle and went back to work operating with a business as usual mentality. Approximately two weeks later, reports started being published about a rising death toll globally and nationally due to the virus. Subsequently, my job with the State of Ohio’s Attorney General’s office promptly shuddered its doors, sending employees swiftly to their homes to begin a new era of remote teleworking. An unmasked society is now something of a distant memory.

In May of 2020 bar exam results for the February sessions were officially released. To my astonish-

"

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DAYTON Bar Briefs | JAN/FEB 2023

ment, I was six points away from making the cut.

Total devastation began to set in. I knew that the AG’s office would only employ me as a law clerk with the contingency that I passed that dreaded exam after two attempts. At the time the results were issued, I was working from home with a growing sense of panic as I agonized about the incoming call from my job informing me that I no longer worked for the State of Ohio. As a reminder, there was a humungous rise in unemployment during the initial days of the pandemic. I was anxiously preparing to marry my now wife and I suddenly had to reckon with the idea that I’d be joining the ranks of the unemployed with no law license and very little money in my coffers because, to put it frankly, law school is no cheap endeavor. To my surprise, the powers that be at the AG’s office granted me mercy. They recognized how much effort I had put into preparing for the test. They had observed the reality of the job market during the moment, and they placed value on the potential I could bring if and when I eventually got over the embarrassment of having to retake and pass the exam. I stayed on as a part-time project assistant with a lot of support and patience to take another swing at the exam during the next offering.

As many may remember or have tried so hard to forget, the grind of bar preparation is an endless mission. Thousands of multiple-choice mental gymnastics, hundreds of half hour essay marathons, and the occasional adrenaline rush of completing a timed MPT are all enough pressure to burst a pipe. I’d been thoroughly immersed in this cyclical engagement for months during the preparation for my first two exams. However, I’d come up short.

This time was different, because now not only was

I had no concern about the content of the exam itself, but rather the anxiety induced by being in a room full of mouth breathers, leg shakers, and pencil tappers once again to take a test that would legitimize my ability to practice law. "

I trapped indoors, forced to read countless hours of legal analysis, but so was the rest of the world! At least that’s what it felt like to me. I relished the opportunity to escape my study corner for a dangerous trip to the supermarket, literally masking my anxiety.

Panic, shame, and doubt were constant emotions coursing through my veins during that summer of my third preparation for the bar exam. Meanwhile, no words about the format, time, or date of the next exam were shared with future examinees. I was now dying with anticipation to know when my next bite at the apple would come. Finally, on or about the end of June an announcement via the Supreme Court was made that the test would be pushed back and take place using an online format. I had no concern about the content of the exam itself, but rather the anxiety induced by being in a room full of mouth breathers, leg shakers, and pencil tappers once again to take a test that would legitimize my ability to practice law. The prospects of failing again were so overwhelming that I took up the habit of running around my neighborhood, miles at a time, just to ignite a sense of competitive edge to keep me motivated during this odyssey of self-realization.

Perhaps one of the most jarring memories of the summer of 2020 was the pressure of the exam coupled with the “racial reckoning” occurring all around me after the tragic ending of George Floyd was played on a loop all day every day. The trauma of the event as a black man navigating my particular set of circumstances has been difficult to process. I attended a protest in downtown Dayton where I saw Swat Team vehicles and fully armed police officers engaging with community members seeking a change in police-community relations.

The lessons learned and conversations had during that summer mostly motivated my pursuit for my law license. It became abundantly clear to me that there was a desire from the general public to acknowledge the complicated nature of American history with regard to race relations. My journey within the legal profession has been characterized by my commitment to navigate unfamiliar territory in spite of being regarded as different due to the color of my skin. I don’t believe my racial background is the defining characteristic of my identity, but it would be dishonest to believe that my perspective as a black man does not distinguish me from many of my peers within the local bar. The summer of 2020 opened my eyes to the desire by many to engage more honestly about the racial history of the nation.

It also made me very aware of the spaces and places that viewed my ascendance into the legal ranks as a threat. If nothing else, my studies in the midst of the “racial reckoning” felt much heavier than they may have been prior to George Floyd.

This was the first offering of the bar exam without proctors watching your every move. Instead of a small army of volunteers monitoring the exam, I was being watched by the small eye of my laptop camera. I took the exam in the same chair and desk where I’d spent hours preparing for the past year and a half. I confidently answered all questions to the best of my ability. I refused to discuss any of the particulars with anyone who asked me about the test afterwards. I had been scarred by the fear of failure, but I was hopeful that my efforts would finally grant me admission to the prestigious ranks of the Ohio bar. Approximately a month and a half later, my dreams came true. I remember finding out

that I had passed by receiving at least eight different texts and emails from various friends and colleagues congratulating me on finally getting over the hump.

I’ve never felt such a feeling of relief before or since.

The sweetness of the moment was all relished from home, the very place I had agonized about my failures for months. Upon being sworn in by the Ohio Supreme Court, virtually, receiving a cool mug from the OSBA reading “I passed the bar during the pandemic 2020,” and finally being appointed as an AAG I could finally relax and focus on figuring out what it means to be an actual ‘attorney.’

I still have quite a bit to learn with respect to what it means to be an Ohio Attorney. I welcome all mentorship, guidance, and opportunity to engage with the local bar. My journey was certainly intensified when considering the mortality of an aspiring individual looking to join the ranks of an esteemed profession with mountains of uncertainty constantly darkening the prospects of success. As I reflect on the peaks and valleys of it all, I recognize how gratifying the experience actually was. I challenged myself to keep going during a time when much of the world began to give up hope. I don’t know what heights I’ll reach now that I have this fancy new title, but I am grateful that I gave myself an opportunity to realize them. If you know someone currently struggling with the dreaded bar exam, please feel free to share my story with them. It is an extremely dark place to be in when you feel like a failure after having been an all star for so much of life prior to meeting the bar exam. Anyone currently sitting in that darkness, I’d encourage you not to give up. It does indeed get greater, later.

JAN/FEB 2023 | DAYTON Bar Briefs

9

Employment Law

The FLSA and Independent Contractors:

A Perpetual Pendulum for Ohio Employers

By Marc L. Fleischauer Esq., Co-Chair, Employment Law | Coolidge Wall Co., LPA | fleischauer@coollaw.com

T

he Fair Labor Standards Act, 29 U.S.C. 201, et seq. (FLSA) requires all covered employers to pay nonexempt employees at least the federal minimum wage for every hour worked. For all hours worked in excess of 40 in a workweek, covered employers must pay a nonexempt employee at least one and one-half times the employee’s regular rate.

The FLSA’s minimum wage and overtime pay requirements apply only to employees. Section 3(e) generally defines “employee” to mean “any individual employed by an employer.” Section 3(d) of the FLSA defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Section 3(g) defines “employ” to include “to suffer or permit to work.”

The U.S. Department of Labor (DOL) has developed various guidance and regulations over the years interpreting the FLSA and specifically distinguishing employees from independent contractors for purposes of minimum wage and overtime. While this development has continued for decades, the battle over independent contractor status spanning just the last three presidential administrations reflects the polarization affecting American politics as a whole.

In 2015, the Obama-era DOL updated its Fact Sheet #13, “Employment Relationship Under the Fair Labor Standards Act (FLSA),” stating that, when determining whether an employment relationship exists under the FLSA, the appropriate test focuses on “economic realities,” as opposed to the application of “technical concepts.” Noting that “it is the total activity or situation which controls,” the Fact Sheet identified seven economic realities factors to consider, including (i) employer’s level of control as to the manner in which the work is performed; (ii) the worker’s opportunity for profit or loss depending upon his/her managerial skill; (iii) the worker’s investment in equipment or materials required for the task or his/her employment of other workers; (iv) any special skill required of the worker; (v) the duration of the working relationship; (vi) whether services 10

DAYTON Bar Briefs | JAN/FEB 2023

rendered by the worker are an integral part of the employer’s business; and (vii) the worker’s degree of independent business organization and operation.

Many employers found these “totality-of-the-circumstances” criteria – none of which was considered to be dispositive by the Obama-era DOL – to be too open to subjective interpretation for employers to ever know exactly “where the line is drawn” for compliance purposes.

On January 7, 2021, the Trump-era DOL issued a new final rule entitled “Independent Contractor Status Under the Fair Labor Standards Act” (86 Fed. Reg. 1168). The DOL explained that the new rule’s purpose was to establish an economic realities test that improved on prior articulations that it viewed as “unclear and unwieldy.” The 2021 rule asserted that shortcomings and misconceptions associated with the economic reality test were more apparent in the modern economy and that additional clarity would promote innovation in work arrangements. In a nutshell, the 2021 final rule removed many of the subjective gray areas endemic to the old multi-factor “economic realities” test and replaced them with a streamlined “economic dependence” test. Under the new test, a worker is an employee if the worker is economically dependent on the employer for work but is an independent contractor if the worker is in business for himself or herself. Although retaining a shortened five-factor list of considerations, the 2021 final rule designated two factors – the nature and degree of control over the work and the worker’s opportunity for profit or loss – as “core factors” that should carry greater weight in the analysis.

Many employers saw this clarification and reduced emphasis on lesser “factors” as an improvement and as adding certainty to compliance efforts.

Although “finalized” in the last days of the Trump administration, the rule had an original effective date of March 8, 2021, two months after the inauguration of new President Joe Biden.

The DOL under the incoming Biden administration initially delayed

the effective date of the Trump-era rule on February 5, 2021, and again on March 4, 2021, in connection with a “Regulatory Freeze Pending Review” affecting essentially all administrative offices in the executive branch (86 Fed. Reg. 7424). The Biden DOL cited “significant and complex” issues as justifying the delay. This culminated in a DOL notice on March 12, 2021 (86 Fed. Reg. 8326), proposing to withdraw the Trump-era Independent Contractor Rule altogether, without letting it take effect. The DOL’s proposed withdrawal of the 2021 final rule was challenged in litigation that same month, and a stay was issued in the Fifth Circuit Court of Appeals (Coalition v. Walsh, No. 22-40316 (5th Cir. June 10, 2022)), recognizing the 2021 final rule as effective since its original March 8, 2021 effective date. Under the new administration, the DOL immediately set about drafting new rules to rescind and replace its own Trump-era rule for identifying independent contractors.

On October 13, 2022, the Biden-era DOL issued a notice of proposed rulemaking (87 FR 62218) that again seeks to redefine the analysis for determining whether a worker is an employee or independent contractor. The DOL states the new rule would preserve worker rights and provide consistency for employers. As a practical matter, the proposed replacement rule would effectively reinstate the “economic realities” test described above, although it notes that additional factors may be relevant to the analysis, particularly if they indicate a worker is in business for himself or herself, as opposed to being economically dependent on the employer.

Although the Biden-era DOL’s proposed rule has not been finalized as of this writing, it reflects an intent to return to the Obama administration’s more amorphous “totality-of-the-circumstances” approach to independent contractor classification. The proposed rule would make it difficult for some workers to qualify as independent contractors under the FLSA, and it especially stands to have a significant impact on gig workers and other service workers in the modern economy. The DOL’s analysis widens the scope of business policies that may evidence “employee status” and gives rise to liability for companies employing putative independent contractors who are not paid the equivalent of minimum wage and overtime.

The DOL has promised an increased enforcement focus on independent contractor classifications (as have other federal and state authorities with related interests concerning the distinction between employees and independent contractors, such as the Internal Revenue Service, the Ohio Department of Job and Family Services, the Ohio Bureau of Workers Compensation, among others). It is important for any business that regularly utilizes independent contractors to internally evaluate these classifications on a continuing basis and to centralize decision-making in this area (front-line hiring managers who ignore such fine legal distinctions can be the bane of every business). As a practical matter, this means reviewing and revising written agreements, creating and observing worker engagement and classification policies, and reviewing long-term contractor relationships for compliance with the DOL’s ever-changing preferences.

DBA Recent Events View more photos on Facebook!

November 4: 30th Annual Bench Bar Conference

Bench Bar Raffle Winners. Michael Dailey, Anthony VanNoy, Bench Bar Co-Chairs Susan Blasik Miller & Judge Susan Solle, and Ron Kozar.

December 1: New Admittee Reception October 3: The DBA & UDSL partner for the First Monday in Octo@ Coco's Bistro ber Opening of the U.S. Supreme Court Term

DBA First Vice President Anne Keeton leads the toast congratulating newly licensed attorneys.

December 7: DBA Past Presidents Breakfast

December 13: DBA Holiday Luncheon

Congratulations to the 25 year honorees in attendance.

Feature

DBA Rising Stars:

Jordan L. Foster & Zion M. U. Sa Savory Thompson Hine LLP

W

hat is better than one DBA Rising Star? Two DBA Rising Stars! With Jordan Foster and Zion Savory – who are also engaged to be married in May 2023 – the Dayton legal community has just that.

Jordan grew up in Fairborn, Ohio and attended Eastern Kentucky University (EKU) where she earned a degree in Criminal Justice (with academic honors). During her time at EKU, Jordan was a member of the EKU Colonels Division I Soccer Team. As a student-athlete at EKU, Jordan was a 2x First Team All-Conference player and, in her Junior season, her EKU Colonels’ team won the Ohio Valley Conference (OVC) Championship. As a Senior, and with the encouragement of an EKU professor and her supportive family, Jordan applied to the University of Dayton School of Law (UDSL).

The son of Jamaican immigrants, Zion was born and raised in Queens, New York. Early on in his adolescence, Zion and his family moved to another melting pot – South Florida. Zion attended Florida International University (FIU) in Miami, Florida where he earned a degree in Business Administration in Management with a concentration in Entrepreneurship. After graduating from FIU in 2017, Zion was prepared to pursue his MBA, but after a (loving) nudge from his Mother, Zion decided to pursue a law degree. Zion was fortunate enough to be admitted into all of the schools to which he applied, but he ultimately chose UDSL. Prior to applying to UDSL, Zion had never been to Ohio. But after his first visit, Zion fell in love with the campus, culture, and academic offerings at UDSL. In fact, as just one example of UDSL’s willingness to go above and beyond for its students (and prospective students), UDSL connected Zion with another South Floridian (then-3L Simeon Lyons), who was entering into his third year at UDSL and was working in Miami for the Summer. Zion and Simeon – who is now a Judge Advocate with the United States Army – had an instant connection that grew into a mentoring relationship and a great friendship.

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DAYTON Bar Briefs | JAN/FEB 2023

Where it all started ...

Jordan and Zion met on their first day of orientation at UDSL. Like any new 1Ls, I assumed their first conversation revolved around the 1L favorites, like Hawkins v. McGee (the “Hairy Hand” case) or Palsgraf v. Long Island Railroad Co. (the doctrine of the unforeseeable plaintiff ). But for Jordan and Zion, their first conversation debate involved an analysis of a much more important question: MJ or Lebron?

As the saying goes … the rest was history.

During law school, Jordan and Zion were very active within the UDSL community. Jordan served as President of the Sports and Entertainment Law Society, Sergeant at Arms for the Black Law Students Association, Board Member of the UDSL Moot Court team, and was a UDSL Student Ambassador. Likewise, Zion served as the President of

Flyers c/o 202

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the Black Law Students Association, Vice President of the 3L Class at UDSL, and Chairman of the Board for the Business Law Society.

As law school students during the height of COVID-19, many of Jordan and Zion’s events were virtual. Even so, Jordan and Zion commented that the Black Law Students Association and the Greater Dayton Area Diversity Equity and Inclusion Legal Roundtable were able to conduct (virtually) their staple programs, the Mentoring Program and Mock Interview Program, and that both were great successes.

In addition to their involvement in the UDSL community, Jordan and Zion also excelled in the classroom. Jordan received CALI Awards in Sports Law and Interviewing, Counseling, and Negotiation. Zion received CALI Awards in Business Organizations and Public Service Mock Trial, as well as an award for “Best Attorney” at the Ohio Attorney General’s Mock Trial Competition.

After her 1st year at UDSL, Jordan worked at a sports law firm in New York City where she gained experience in a wide-variety of sports-related practice areas such as transfer waivers, drug appeals, and the new Name, Imagine, and Likeness (NIL) rules. In conjunction with that work, Jordan also worked with a non-profit known as the College Athlete Advocacy Initiative, and was able to travel to Washington, D.C. to speak with members of Congress about the importance of passing legislation in support of NIL. With the College Athlete Advocacy Initiative, Jordan also helped create a PSA surrounding NIL issues that went viral and was shared on social media by Members of Congress, athletes, and media outlets including LeBron James, ESPN, and USA Today Sports. After her 2nd year at UDSL, Jordan joined Thompson Hine’s Dayton Office as a summer associate. Unfortunately, because of COVID-19 her summer was shortened to just five weeks. But even in that short time Jordan knew Thompson Hine was where she continue her career after school: “Thompson Hine and the wonderful attorneys at the firm found unique ways to make the summer extremely interactive and allowed me to get a real idea of what being an associate would be like. Everyone at the firm was super welcoming and I could immediately tell that this was somewhere that I wanted to be.” – Jordan For his part, Zion spent his summers in Miami working for a firm where he gained practical experience in class action litigation (product liability, medical devices, pharmaceuticals, and state utility actions) and Medicare subrogation. Zion enjoyed his time working in Miami, but when he was invited to complete an externship with Thompson Hine during his 3L year, Zion knew Thompson Hine was where he wanted to begin his career.

In May of 2021, Jordan and Zion graduated from UDSL and thereafter began their careers with Thompson Hine – both in the Business Litigation Group. I asked them what it was like to work in the same firm and practice group with their significant other, and both remarked that it has been a great experience: “I think working at the same firm has been great for us. Litigation work can be time consuming and stressful at times and it has been extremely helpful to know and understand the pressures that the other person may be experiencing on the day-to-day.

Though we don’t necessarily work on the same matters much, we are always willing to help each other when possible.” - Zion “It is also extremely nice to have a partner who knows exactly what being an associate in a big law firm is like. We are able to bounce ideas off one another and ask each other for advice.

Working together has allowed us to really help one another grow professionally. Also, working together has also allowed us to be able to spend more time together despite our busy schedules at work.” – Jordan

es!"

She said "Y In October of 2021, Jordan and Zion found out that they both passed the Ohio Bar Exam, proudly becoming the first attorneys in each of their families. With the help of the Honorable Judge Gerald Parker, the couple was sworn into the Bar at the Montgomery County Court of Common Pleas. To cap off an already momentous day for each of them and their families, Zion proposed to Jordan at the Courthouse (she said yes!). And for those wondering, Judge Parker was in on Zion’s proposal plan: “After asking him to swear us in, [ Judge Parker] and I planned it out behind the scenes. After being officially sworn in, I asked [ Judge Parker] ‘so is that it – we are officially lawyers? No more steps to take?’ and Judge Parker responded ‘well, there is one more step …. ‘ and that’s when I got down on one knee and proposed.” – Zion Having recently finished their first full year as new lawyers, I asked both Jordan and Zion what advice they had for students graduating later this year, and, among other things, both commented on the importance of giving back to our community. To be sure, Dayton is lucky to have these two Rising Stars leading the next generation of diligent, caring, and compassionate lawyers.

By Zachary B. White Esq. Chair, Bar Briefs Editorial Board Coolidge Wall Co., LPA White@coollaw.com

JAN/FEB 2023 | DAYTON Bar Briefs

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Juvenile Law

Committee Update from the Chairs

By Misty M. Connors Esq., Co-Chair | Connors Law Office | mistyconnors@att.net and Sara M. Barry Esq., Co-Chair | Barry Law LLC | sarabarrylaw@gmail.com

Good Luck, Judge Capizzi!

I

t is difficult to accept, but Judge Capizzi is retiring his robe in just two weeks at the time of this writing. By the time of publication, he is hopefully enjoying a few days off with his family to relax before heading back to work overseeing drug courts around the world and hearing cases as a visiting judge.

Judge Capizzi made a huge difference in our community by surrounding the most vulnerable children with supportive adults. He ran the best drug court in the world by setting the standard for excellence. He adopted best practices without hesitation. His drug court docket is the most successful specialty docket in the world, hence the invitation to oversee others during his “retirement.”

Though it takes a toll to hear such cases, Judge Capizzi personally presided over the

Join the Discussion!

most difficult child sexual abuse, rape and murder cases. Judge Capizzi always said yes to the Juvenile Law Committee’s requests for him to speak, teach, or attend numerous events. Judge Capizzi made time to help us become better lawyers. On behalf of the Juvenile Law Committee, Thank You, Judge Capizzi for all you’ve done to make a difference for our youth, our community and our Bar! Welcome Judge Bruns! Judge Bruns was already a superstar as our Chief Magistrate!

In that role, she volunteered to help the JLC organize our most recent GAL preservice course, which was an all day event. She then attended the full day CLE and offered encouragement, support and guidance as we reviewed every aspect of guardian ad litem

At our first meeting this year on Wednesday, January 25, 2023 from Noon-1:00 p.m., Judge Kate Huffman will present Trauma Informed Lawyering to multiple committees, including JLC. This year, our meetings will include lively discussions about topics of interest to JLC members! A few of the topics to look out for are listed below.

OhioRise went into effect on July 1, 2022. Attorneys Cristy Oaks and Misty Connors are planning to present a 1 hour CLE to share experiences and insight about how OhioRise can help children and families regardless of custody status, the new Medicaid Waiver included in OhioRise, and provide examples of what the Care Coordinators are doing for children with behavior problems.

Stewards of Children empowers youth serving professionals to protect children from sexual abuse. Join licensed facilitator Misty Connors for an in-depth discussion about the five steps every adult should learn about protecting children from sexual abuse, listen to experts explain the extent of the problems caused by child sexual abuse and several 14

DAYTON Bar Briefs | JAN/FEB 2023

work at MCJC. Having her there was an excellent preview of her leadership and the team-oriented approach she brings with her as our most recently elected judge. Many of the assistant prosecutors practicing juvenile law remember her fondly as their section leader before she was sworn in on the bench.

Leading up to her election in November, her former team endorsed her enthusiastically as “the best boss ever” saying “she knows how to motivate people to do well as a team.” Congratulations Judge Bruns! We are glad to have you at the helm alongside our new Administrative Judge, Helen Wallace.

Our two judges, together, will continue the long-standing tradition of blazing the trail at MCJC.

survivors who, as adults, reflect on how perpetrators took advantage of their lack of knowledge to manipulate them and the adults around them.

CLE hours and exact date TBA. In re A.S. 2022-Ohio-1861 (10th Dist., Franklin Co.) reversed a trial court’s decision granting PC of a child to children’s services due to the poor performance of the GAL. The appellate court relied upon the statutory requirement that a court appoint a GAL “subject to rules adopted by the supreme court” and then pointed out several deficiencies in the GAL’s performance of his Rule 48 duties. See RC 2151.281(D).

The PC was reversed and the case was remanded for “plain error” of not requiring the GAL to faithfully discharge his duties. The Tenth District already distinguished the situation in that case from other situations where a GAL failed to discharge a duty. The JLC will discuss In re: A.S. and its progeny.

We hope you mark your calendars for JLC meetings from Noon-1pm on 1/25; 2/7; 3/7; 4/4; and 5/2 and join us for lively discussions about these and other topics impacting your practice!

DBA Sections/Groups/Divisions

JANUARY/FEBRUARY DBA SECTION MEETINGS: Visit daybar.org for complete list of meeting topics & agendas January 2023

4

5

Young Lawyers Division @ DBA Noon Cornhole Tournament Meeting/Annual YLD fundraising event for the Ohio Innocence Project Estate Planning Trust & Probate @ DBA 3-5pm *Optional 2.0 Gen Hrs: Taxes Workers’ Comp/Social Security @ DBA Noon-1pm *Optional 1.0 Gen Hr Current Issues in Social Security Law-from Application to Federal Court with Co-Chair Michael Rake

10

Civil Trial & ADR @ DBA 7:30am

11

Appellate Court Practice @ Zoom-1pm

12 17 19 25

Meet the newly elected judges.

*Optional 1.0 Gen Hr Latest developments regarding final appealable orders; when you must file a notice of appeal to preserve an issue, and whether it is premature to take an appeal.

1

Young Lawyers Division @ DBA Noon-1pm *Optional 1.0 PC Hr: Working Parents in the Law Estate Planning Trust & Probate @ DBA 4pm

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Juvenile Law @ Noon

8

Appellate Court Practice @ Noon

9

Real Property @ Noon

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Civil Trial & ADR @ Starbucks Schuster Center 7:30am

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Criminal Law @ Noon

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Real Property @ Noon Federal Practice @ Noon Employment Law @ DBA or Zoom Noon-1pm

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Federal Practice @ Noon Diversity Issues @ 4pm Domestic Relations @ DBA Noon-1pm *Optional 1.0 Gen Hr: DR 101 Part II - Filing a Divorce with Gary Schaengold Paralegal @ Noon Corporate Counsel @ 5pm

*Optional 1.0 Gen Hr Unemployment Compensation Appeals with Chairman, Gregory Gantt COMBINED JANUARY MEETINGS:

Criminal Law, Juvenile Law, Domestic Relations and Diversity Issues @ DBA Noon-1pm *Optional 1.0 PC Hr Trauma Informed Lawyering with Judge Mary Kate Huffman

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February 2023

Paralegal @ Zoom Noon Lee Brackney with Thomson Reuters, Westlaw for Paralegals Corporate Counsel @ Bravo Resturant Dayton Mall 5pm New Year's Resolution: Pro Bono Opportunities for In-House & Transactional Lawyers

Get the most out of your DBA membership.

Join a DBA Section in 2023.

Contact Kate Bertke to join: kbertke@daybar.org

JAN/FEB 2023 | DAYTON Bar Briefs

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DBA Continuing Legal Education

January CLE: 4

3pm-4pm | DBA Seminar Room | 2.0 Gen hrs

Presented by the Estate Planning Trust & Probate section

February CLE: 2

Noon-1pm | DBA Seminar Room | 1.0 PC hr

Presented by the Young Lawyers Division

Taxes

Working Parents in the Law

5

16

Noon-1pm | DBA Seminar Room | 1.0 Gen hr

Presented by the Workers' Comp & Social Security section

Current Issues in Social Security LawFrom Application to Federal Court

6

Noon-1pm | DBA Seminar Room | 3.0 NLT hrs

NLT Core Components

22 Noon-1pm | DBA Seminar Room | 1.0 Gen hr Presented by Domestic Relations section

9am-11am | Zoom Video Replay | 1.0 Gen hr + 1.0 PC hr

Domestic Relations 2022 Year End Roundup

11

DR 101 Part II – Filing a Divorce

Noon-1pm | Zoom | 1.0 Gen hr

Presented by the Appellate Court Practice section

March 10th @ Sinclair Conference Center

Latest Developments Regarding Final Appealable Orders

DBA Annual Probate

13

Law Institute

April 14th @ Sinclair Conference Center

Domestic Relations Institute 9am – Noon | Zoom Video Replay | 2.75 Gen hrs

Judge Steven K. Dankof’s 2022 Criminal Law Update

May 11th @ Sinclair Conference Center DBA Annual Diversity Day May 18th @ DBA Seminar Room

19 Noon-1pm | DBA or Zoom | 1.0 Gen hr Presented by the Employment Law section

Unemployment Compensation Appeals

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9am-Noon | Zoom Video Replay | 3.0 Gen hrs

2022 Federal Court Update with the Judges

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Noon-1:30pm | Zoom | 1.5 PC hr

Secondary Trauma, Burnout and Self Care for Lawyers

25

Noon-1pm | DBA Seminar Room | 1.0 PC hr

Presented by the Juvenile Law, DR, Diversity and Crim Law sections

Trauma Informed Lawyering with Judge Mary Kate Huffman

27 9am-Noon | Zoom Video Replay | 3.0 PC hrs The Ethical Lawyer: Professionalism Standards for Practicing Law Today

Check daybar.org for new Lunch and Learns on Mondays February - May. 16

DAYTON Bar Briefs | JAN/FEB 2023

DBA First Annual Real Property Institute

For more up-to-date program listings and agendas visit us online at daybar.org/cle

The DBA Criminal Law, Juvenile Law, Domestic Relations and Diversity Issues Sections invite you to attend this program for all lawyers.

Trauma informed lawyering Wednesday, January 25th DBA Seminar Room Noon-1pm | 1.0 PC hr Presented by:

The Honorable Judge Mary Kate Huffman

to register:

daybar.org

30th Anniversary

DBA

Bench Bar Conference

what attendees will leARN: This program will inform attorneys on the effects of trauma on the brain and development, varied responses to trauma, and effective means of incorporating trauma-informed practices into representation.

Thank you 2022 Bench Bar Sponsors!

Friday, November 4, 2022 | Sinclair Conference Center

FIRM/TITLE SPONSOR:

STERLING SPONSOR:

BARRISTER SPONSOR:

Dayton Court Reporter

The generous support of the: Hubert A. & Gladys C. Estabrook Charitable Trust administered by Porter Wright Morris and Arthur

Julie Noeth Photography JAN/FEB 2023 | DAYTON Bar Briefs

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Social Justice

By Bonnie Beaman Rice, Social Justice Initiative Chair

A Call to Social Justice

I

t is not an uncommon stereotype for the public to think of attorneys as being hard-driven; hence, the age-old adage that only a lawyer can draft a 10,000-word document and call it a "brief." It is true that many of us work long hours, tirelessly pursuing, despite obstacles, an outcome in our clients’ best interests; but, what is oftentimes overlooked – or just plain ignored - is the fact that despite our hard driven image, this description does not depict a complete picture of our local bar.

Look at a roster of board members for any number of non-profits and you will see the names of our colleagues listed. Attend a fundraiser for a worthy cause, and you will discover, more often than not, the event chair is one of our peers and the sponsors are attorneys and/or law firms, large and small. In short, I’d like to suggest that while the members of our profession are most certainly “hard-driven, we are, in equal measure, “heart-driven.”

It is for this reason the Dayton Bar Association’s newly-formed Social Justice Initiative (SJI) has been warmly embraced by so many of you. If you’ve not yet signed on to participate, it’s not too late! First, let me clarify the working definition of “Social Justice” which guides this initiative, as adopted by the DBA Board of Trustees.

Social justice” means equal rights and equitable opportunities for all, regardless of race, gender, ethnicity, national origin, religion, age, sexual orientation, gender identity, disability or so cioeconomic status. Proponents of social justice seek to aid those who are underserved, vulnerable, marginalized and/or dispossessed.

Examples of social justice issues include civil rights, hunger, safety, poverty, housing, homelessness, education, physical and mental health, environmental concerns, access to justice, and freedom from discrimination and prejudice. The Dayton Bar Association supports efforts to achieve social justice.

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Below is a description for each of our SJI endeavors:

1.) Adopt-A-School Project

Under a directive from the DBA Board of Trustees to select a social justice issue and take action to effect meaningful change, it was determined by the SJI committee that our focus would be on helping students in the Dayton Public School system. The framework for the approach to this initiative will be as follows: • assemble teams of approximately 4 attorneys (including judicial members); • each group will identify a team leader; • each team will meet with a DPS high school Principal in order to identify prioritized needs for that Principal’s school; • each month team members will rotate visits to the school to satisfy the pre-designated needs; • if applicable to the needs specified, the visiting attorney will focus on civics education, leadership skills and/or career development; other needs may be literacy help, debate prep, etc.

• a common curriculum will be developed, adopted and/or provided to the teams.

If you are interested in this project, please contact the team leaders: Judge Walter H. Rice| walter_rice@ohsd.uscourts.gov | (937) 512-1502 Summer Hawks | summer@gdvlp.org | (937) 461-3857

2.) Non-profit Clearing House

Under a directive from the DBA Board of Trustees to promote member involvement in community social justice organizations, the SJI committee has chosen to empower our membership to become more involved and supportive of local non-profits by taking the following steps: • create, manage and publicize a list of local non-profits that seek to promote social justice; • to be included on the list an organization must: • be non-partisan, • promote diversity, equity and inclusion (in accordance with DBA existing policies), and • uphold the rule of law.

• the list created will identify: • the organization’s mission statement, • DBA members who serve on that organization’s board and who agree to act as a liaison with the Bar, • upcoming events of the organization, as well as volunteer opportunities (including vacant board seats) • Individual organizations will be highlighted in Bar Briefs articles.

If you are interested in this project, please contact the team leaders: Magistrate Jacqueline Gaines | gainesj@mcohio.org | (937) 225-4063 Arvin Miller | asmiii50@gmail.com | (937) 672-4907

3.) Community Conversations

As noted by the DBA Board of Trustees: due to their training as lawyers, members of the DBA are able to have difficult conversations on controversial topics in a civil manner that provide new insights and encourages critical thinking. By modeling these skills to the community, DBA members can provide leadership on the important issue of civil public discourse.

In furtherance of the above statement, this initiative will: • plan and organize community conversations before live audiences and/ or by zoom webinars, etc. for DBA members and/or the general public; • select topics that comport with Bar policy by presentations that are educational, balanced, and non-partisan; If you are interested in this project, please contact the team leaders: Judge Jeffrey Froelich | babafro@frontier.com | (937) 572-2776 Dianne Marx | dianne_marx@ohsd.uscourts.gov | (937) 512-1505

There you have it. Whether your style of lawyering is toward the introvert end of the scale, or the extrovert, we have an option for you because, beneath your hard-driven persona, we know there lies a heart-driven passion.

JAN/FEB 2023 | DAYTON Bar Briefs

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From the Judge's Desk

Civility and Professionalism in the Montgomery County Courts

By The Honorable Kimberly A. Melnick Montgomery County Common Pleas Court kimberly.melnick@montcourt.oh.gov

A

s a former Montgomery County Prosecutor, I have practiced in the Montgomery County Common Pleas Court for the vast majority of my 28-year career. I have experienced the changes in the relationships between the defense bar and the prosecutor’s office over these years. Now that I’m on the bench, I’m experiencing these relationships from another perspective as well as the relationships between the attorneys practicing in the civil arena.

When I was a young prosecutor, there was at least one Friday a month when several defense attorneys, prosecutors and even a few judges would gather after work. This wasn’t for the purpose of “getting our drink on”, but was for the purpose of camaraderie. We were all friends in the general sense. We fortified these relationships and built trust. This translated to a productive work environment. Attorneys resolved what could be resolved and had trials when they were necessary. While everyone was part of the adversarial process, it was never personal and always professional. Attorneys would passionately argue their cases in the courtroom and then have a drink together when the case was concluded and discuss the inevitable “crazy”

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DAYTON Bar Briefs | JAN/FEB 2023

things that would unexpectedly come up during a trial.

Let’s face it, times change. The pandemic has shown us just how quickly our lives can be turned upside-down. Even things that were never spoken about, religion and politics, are now causing rifts between family and friends.

I’m sure to some I sound like the old attorney who’s speaking of “the good old days”, and wanting things to return to times past. However, that is far from my point. In recent years, the camaraderie outside the courtrooms has waned, but the professionalism and respect have remained intact.

Since taking the bench, I have had more frequent experiences with attorneys that practice primarily in other counties. While I’m sure that the absence of our local bonds plays a large role, I am increasingly dismayed when an attorney arrives in court or participates in a phone conference and is so focused on the fight that they miss the opportunity to make new contacts and forge new relationships. I realize that attorneys must zealously represent their clients.

I’m afraid that this has been taken by some to mean that you must forsake all others in that endeavor. In my experience, building

relationships with the opposing counsel can only help you represent your clients. Dialogue is everything when negotiating a settlement in both the civil and criminal cases. Give and take goes a long way and respect for others goes even farther.

As a judge, I strive to be fair at all times. I don’t take out an attorney’s behavior on the client. My job is to be even keeled at all times.

Judicial temperament is important to me and it comes across to jurors, whether a judge realizes it or not. There are times when this is more difficult than others. I believe that the court should demand respect for the system. A judge, however, needs to earn the respect of the attorneys who practice before them.

Why am I rambling about all of this? In recent months, I have met so many attorneys, mostly in the civil realm, that I have never met before. The OVERWHELMING majority of these attorneys have demonstrated this respect, professionalism and camaraderie. They most certainly do not agree on issues before the court.

However, they have held fast to the fact that they are officers of the court and it’s clear that they value the legal system and each other. I’ve never been prouder to be working in Montgomery County.

DBA Membership Advantages - LRS

JAN/FEB 2023 | DAYTON Bar Briefs

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A very special Thank You to

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DAYTON Bar Briefs | JAN/FEB 2023

o our outstanding members!

JAN/FEB 2023 | DAYTON Bar Briefs

23

In Memoriam

Posthumous

Barrister of the Month:

Michael L. Monta Esq.

"D

on’t worry that the horse is blind, just load the wagon.”

The above quote was a favorite of our Barrister of the Month, Michael L. Monta, known to almost everyone as Mike. I first heard the quote from my long-time law partner Vince Popp who most likely “borrowed” it from Mike. In turn, Mike most likely “borrowed” it from John Madden. Anyway, the more you ponder the quote, the more impact it has.

Mike’s path to Dayton was not certain nor straight. He grew up in western New York and graduated from Bucknell University, located in central Pennsylvania. He served honorably in the U.S. Army during the Vietnam War and made his way to Ada, Ohio and Ohio Northern University Law School. Somehow the blind horse led this proud Ohio Northern graduate to Dayton to practice law.

Perhaps because Mike didn’t have roots in Dayton and didn’t know many other lawyers when he first came to Dayton in the early 1970s, Mike found value in joining the DBA and becoming a Bar Briefs contributor. Mike started the Barrister of the Month column for Bar Briefs and continued as a contributing writer for over ten years.

Mike said the column allowed him to learn about our profession from the many distinguished attorneys he interviewed and wrote about.

Notably, Mike was the Editor of the Lampoon Edition of Bar Briefs published on April Fools Day every year. For all our younger members, the Lampoon Edition was a much anticipated, much discussed, irreverent, spoof edition that poked fun at attorneys and public figures. It was an honor, a curse, a mixed blessing to be highlighted, roasted or ridiculed in print. Years after the Lampoon Edition ceased publication in 2000, Mike assured himself, and anyone else who would listen, that all the wisecracks and jabs were just good natured fun.I suspect Mike was right. While many Bar Briefs editions quickly hit the waste basket, Lampoon Editions remained on the bookcase shelves of lawyers for many years, within close reach.

Maybe some of you reading this story know about Mike from his long tenure hosting the Dayton public access television show, “You and the Law.” For over 25 years, Mike hosted the monthly call-in show sponsored by the DBA. Former DBA President Jeff Swillinger now hosts the show.

Over the years, Mike had a whole range of lawyers 24

DAYTON Bar Briefs | JAN/FEB 2023

and judges on the show covering wide and varied legal topics. Mike’s daughter Chrissy recalls that Mike poured his heart and soul into the show. She remembers that during a show after O.J. Simpson was acquitted, Mike took a call and the caller unexpectedly screamed, “THE JUICE IS LOOSE '' and hung up. After that incident Mike began screening calls and used a time delay Access You & The LaW programs datv. when airing calls. Often when we would org attend Chancery luncheons, Mike would ask the luncheon speaker or even lawyers at our table if they would come on his show, always trolling for guests and loading the wagon.

Throughout his career, courts, colleagues and clients benefitted from Mike’s legal skills and everyday good judgment. Mike was widely known in courts of all levels as a lawyer to contact to handle difficult clients and difficult cases. He once volunteered to meet my linger law partner Vince Popp and an alibi , Jeff Swil current host h it w e witness at Mike’s office. On a pleasant ik M Saturday afternoon when Mike could have been playing golf, Mike’s smart Matt, played together in the Doc Wright golf and probing questions convinced them both that league and Mike would end every “You and the it would be a mistake to put the witness on the Law” show by wishing Lily, Katy and Everett a stand. Last year after Mike withdrew from his good night. federal court cases due to his illness, Vince took Sadly for his family, his friends, his colleagues over client representation. Almost every time and our profession, Mike passed away in early Vince met with the clients they would ask, “How November. Mike was very proud to be a husband, is Mr. Monta? Have you heard from Mr. Monta? a father and a grandfather. He also was very proud Tell Mr. Monta that I said hi.” to be a lawyer and thought that all of us as memI don’t know if it was the blind horse or what, bers of the bar should be proud to be lawyers too. but Mike’s family life was loaded and important to For Mike, our Barrister of the Month, the blind him. Mike aimed high and married Vasso Kiskiras horse has found its way along the route and the who was first in her 1977 U.D. Law School class. loaded wagon has made it to its destination.

Mary Donovan, a fellow 1977 U.D. classmate, Special thanks to Vince Popp, Mary Donovan recalls Vasso as a lovely and brilliant lawyer in and Jeff Swillinger for their anecdotes, help, and her own right. Vasso and Mike must have loaded suggestions. something special onto their wagon because that blind horse led them to a family of three children, Niki, Christine (Chrissy) and Matt, and three grandchildren, Lily, Katy, and Everett. Mike was his kids’ all-around biggest fan and Poppy to his

By Mark A. Tuss Esq. grandchildren. In later years, Mike and his son,

marktusslaw1@gmail.com

DBA Membership Advantages - ONS

Sign Up! becomeanohionotary.com

Become an Ohio Notary!

Through a joint venture with the Akron, Cincinnati, Cleveland, Toledo and Ohio State Bar Associations, the DBA is helping new and renewing notaries across all of Ohio with all of their education and testing needs. Ohio Notary Services (ONS) is truly the one-stop-shop for all things notary in Ohio, including required courses, tests, and notary supplies.

Notary Law Checklist: Step 1 Obtain a formal Bureau of Criminal Investigation (BCI) background check Step 2 Visit www.becomeanohionotary.com, attend class virtually and pass the test (if required.)

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Step 3 Visit the Ohio Secretary of State's website and select File Online to submit your application.

Step 4 Return to www.becomeanohionotary.com to purchase your notary supplies. Free standard shipping on all notary bundles! (Use the code “FREE”) JAN/FEB 2023 | DAYTON Bar Briefs

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Understanding the Lack of Dayton Representation on the Ohio Supreme Court The Honorable John A. Shauck

By Nathaniel M. Fouch Esq. | Ohio Court of Appeals - 12th District | fouchn@12thdca.com

On January 2, 2023, when the justices elected to the Ohio Supreme Court in November formally commenced their six-year terms in office, it marked 107 years since the last justice from Dayton served on the court. Few today have ever heard of Judge John A. Shauck, who served on the supreme court from 1895–1915, but he bears the distinction of being the only justice from Montgomery County ever to take the bench in the Ohio Supreme Court's approximately 220-year history.1 Dayton has always been a large and important city in Ohio: the sixth largest in the state since 1920, fifth largest from 1870–1910, and third largest in 1860.2 Yet no matter how you measure what it means to be "from" Dayton, there is no question that Dayton has been underrepresented on the state supreme court.

Fifty-three of Ohio's 88 counties (roughly 60%) have had at least one justice on the Ohio Supreme Court, which itself is fairly impressive.3 This is likely in part due to Ohio's long-standing tradition of geographically disparate appellate districts, which dates in some form to at least 1851 if not earlier.4 Many candidates for the supreme court have historically been sitting appellate judges, including both challengers in the recent election. Hamilton, Franklin, and Cuyahoga Counties have naturally contributed the most justices per county.5 Yet there have been more (two) and more recent (1953) justices from, for example, tiny Van Wert County than from Montgomery (one, 1915).6 And there has never been a justice from Greene or Miami Counties, comprising the other parts of the Dayton Metropolitan Statistical Area. How do we account for this disparity?

The late establishment of the University of Dayton (UD) School of Law is at least a partial contributor to the situation. It was founded in 1922, closed in 1932, and re-founded in 1973.7 No matter which date of foundation considered, it is the youngest extant law school in the state. Of Ohio's ten law schools (counting the Northern Kentucky University Chase School of Law), all but the University of Dayton count at least one Ohio Supreme Court justice among their alumni.8 In addition to being the last law school founded, UD was also the only remaining law school to close and reopen. This meant that for most of Ohio's history, to the extent there were law schools, the closest to Dayton were in Cincinnati or Columbus. Given the 26

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maxim that it is easiest to practice in the community where one attended law school, it perhaps makes sense that the absence of a law school would contribute to a lack of candidates for the supreme court.

This fact alone does not explain the glaring lack of Dayton representation on the court. A full 25 of the 85 justices (roughly 29%) who attended law school went to law school out of state. And of course, plenty of Dayton attorneys would have either attended law school out of state or elsewhere in Ohio. This theory also does not account for the fact that 71 of the 162 total justices (roughly 44%) did not attend law school at all! Surely there were several such talented and capable attorneys in prosperous, historical Dayton, who could conceivably have been elected or appointed to the bench. Yet we are left with only Judge Shauck (who attended the University of Michigan Law School).9 A look at other prominent positions within the legal community shows that Dayton has not been lacking in attorney leaders. Fourteen Daytonians—including Judge Shauck—have served as President of the Ohio State Bar Association since its founding in 1880, as recently as 2013.10 There have been two Ohio governors from Dayton, one being an attorney.11 Dayton's local legal institutions, including the Dayton Bar Association, Second District Court of Appeals, and local courts of common pleas have produced many brilliant legal minds, yet only one justice, and that a long time ago.

Perhaps the ultimate answer to why so few Daytonians have sat upon the Ohio Supreme Court bench is the fact that so few have chosen to run. By this author's calculations, only two Daytonians have run for the supreme court in the last fifty years.12 Retired Judge James Brogan, of the Second District Court of Appeals, unsuccessfully ran for the 2000 Democratic nomination.13 A noted jurist and scholar, and coauthor of Anderson's Appellate Practice and Procedure in Ohio, Judge Brogan alone received the Ohio State Bar Association's "highly recommended" rating among the candidates for the court that year (which included two sitting justices).14 Former Montgomery County Court of Common Pleas Judge A.J. Wagner likewise unsuccessfully sought the 2006 Democratic nomination for the Ohio Supreme Court.15 He would later continue his distinguished career in public service until his untimely death last year.16

One hundred eight years is a long time to be without a supreme court justice, and twenty years out of 220 is a short time to have one. While there is no requirement for geographic diversity on the supreme court, unlike the courts of appeal, Ohio's sixth largest city should strive to punch at its weight. Dayton is a special place, and the experiences and perspective that come with growing up here, making a living here, or raising a family here would be valuable for any judge.

In an era of frequently uncontested judicial elections, perhaps it is time for some Daytonians to pick up the torch and run! Until that time, let's raise a glass to Judge Shauck, Dayton's own (and only) Ohio Supreme Court Justice.

ENDNOTES: 1.

John Allen Shauck, THE SUPREME COURT OF OHIO & THE OHIO JUDICIAL SYSTEM (last visited Nov. 10, 2022), https://www.supremecourt. ohio.gov/courts/judicial-system/supreme-court-of-ohio/justices-1803-topresent/john-shauck/.

2.

Top 100 Biggest Ohio Cities by Population, BIGGEST US CITIES (last visited Nov. 10, 2022), https://www.biggestuscities.com/oh.

3.

Justices 1803 to Present, THE SUPREME COURT OF OHIO & THE OHIO JUDICIAL SYSTEM (last visited Nov. 10, 2022), https://www. supremecourt.ohio.gov/courts/judicial-system/supreme-court-of-ohio/justices1803-to-present/.

4.

See Lee E. Skeel, Constitutional History of Ohio's Appellate Courts, 6 CLEV. ST. L. REV. 323, 325 (1957); F. R. Aumann, The Development of the Judicial System of Ohio, 41 OHIO ARCHEOLOGICAL & HIST. Q. 195, 205 (1932).

5.

Justices, supra note 3.

6.

Id. 7.

History of the University of Dayton School of Law, U. DAYTON (last visited Nov. 10, 2022), https://udayton.edu/law/about/history.php.

8.

Justices, supra note 3.

9.

1 CARRINGTON T. MARSHALL, A HISTORY OF THE COURTS AND LAWYERS OF OHIO 259 (1934).

10.

Past Presidents, OHIO ST. BAR ASS'N (last visited Nov. 10, 2022), https:// www.ohiobar.org/about-us/OSBA-leadership/board-of-governors/pastpresidents/.

11.

Chris Stewart, Ohio Governors: Which Ones Hailed from Our Region?, SPRINGFIELD NEWS-SUN (Apr. 19, 2021), https://www.springfieldnewssun.com/ local/ohio-governors-which-ones-hailed-from-our-region/CYUWLVECZBGF3G7IUR7NN2AGLU/.

12.

Election Results and Data, OHIO SEC. OF ST. (last visited Nov. 10, 2022), https://www.ohiosos.gov/elections/election-results-and-data/.

13.

Democratic Ohio Supreme Court - Term Beginning 1/1/2001: March 7, 2000, OHIO SEC. OF ST. (last visited Nov. 10, 2022), https://www.ohiosos.gov/ elections/election-results-and-data/2000-elections-results/democratic-ohiosupreme-court---term-beginning-112001-march-7-2000/.

14.

Ohio Bar Gives Judge James Brogan Highest Rating, DAYTON BUS. J. (Feb. 15, 2000, 4:55 PM), https://www.bizjournals.com/dayton/stories/2000/02/14/ daily10.html.

15.

Democratic Ohio Supreme Court - Term Beginning January 1, 2007: May 2, 2006, OHIO SEC. OF ST. (last visited Nov. 10, 2022), https://www.ohiosos.gov/ elections/election-results-and-data/2006-elections-results/democratic-justice-ofthe-ohio-supreme-court-term-beginning-january-1-2007-may-2-2006/.

16.

Parker Perry, A.J. Wagner Dies; Longtime Public Servant was Judge, Ran for Dayton Mayor, DAYTON DAILY NEWS (Aug.26, 2022), https://www. daytondailynews.com/local/aj-wagner-dies-longtime-public-servant-was-judgeran-for-dayton-mayor/MFKXHFTVFJC4PI2QXWNBVDF62A/.

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Law Related Organizations - OLAP

How I coped with my depression Anonymous

It happened gradually. I was waking up during the night more than usual with thoughts I could not control. Then I was having trouble falling asleep because of the thoughts I could not control. When I was awake, I started having trouble concentrating. My husband would speak to me and I would not comprehend what he was saying. I would zone out. I started to slack on my work. Procrastination started to become a daily habit. Then I turned inward and started telling myself how horrible of a person I was.

The thoughts became constant. Some of the lies I was telling myself were: I am terrible at my job, my friends think I am a loser, my husband is no longer in love with me, my son will become a drug addict, my parents are going to die soon and I cannot handle it, I am a terrible parent, the world is going to end, I should just end my life so that no one has to deal with me, I am a bad friend, I am worthless, I have no purpose.

I started comparing myself to others—in parenting, in jobs, in looks, in weight, in motivation, in being a good partner and friend.

According to my observations, I was the worst at all of these. I was a bad person. I did not deserve good things. All of my thoughts were focused on everything I did wrong in my life.

I started thinking about past occurrences where I made a mistake or I said something wrong or I hurt someone else’s feelings. The one time I told my grandma to leave me alone; the time I told my brother what a jerk he was; the time I became impatient with a client. How could I be such a horrible person, I would ask myself. I started dwelling on the past.

Then I isolated myself. I shut myself off from the outside world. I did not call my friends or family, and I made excuses to stay at home.

I did not want to be anyone else’s problem. I did not want to talk to anyone else about it because I did not want them to feel as if they were responsible to help me. I figured there was nothing anyone else could do to help me. I even shut my husband out. I told him I did not feel 28

DAYTON Bar Briefs | JAN/FEB 2023

well—that I had headaches, stomachaches, a sore throat, anything to keep me from talking or to leave the house.

I told myself that I did not deserve to be depressed. I had many positive things in my life: a supportive husband, healthy children, a roof over my head, a steady job, a support system of good friends and family. I have all of these but why do I feel so miserable?

Nothing terrible had recently happened to me. I do not have a traumatic past. My parents have always been supportive and loving. Why was I so depressed? Even in my depression I felt like an imposter.

I tried taking melatonin, ashwagandha and other supplements to help me sleep. When these did not help, I became more hopeless.

I tried counting backwards from 999 and meditating, but my negative thoughts kept interfering. I would fall asleep for an hour and then be awake for three, dreading the next day.

I became agitated and so tired. I quit exercising.

When I would finally answer the phone or respond to a friend’s text, I was not myself.

People at work and even friends and family told me to “smile,” “cheer up,” “just snap out of it.”

All of these expressions made me feel worse.

No one understood. If I could just snap out of it, I would! I did not want to feel this way. I did not enjoy being miserable.

I made myself go to my annual physical and I told my doctor how I was feeling. She diagnosed me with clinical depression and recommended an antidepressant, which I really did not want to take. I was afraid of the side effects and afraid of what others would think of me. When I told a close friend who works in the mental health field about my diagnosis, he asked me, “If you had diabetes and it required you to take insulin, would you?” I said yes, because my life would depend on it. He then asked, “So what is the difference with taking an antidepressant? You need it to be well, to function, to live without depression and anxiety.” He had a good point.

I filled my prescription and thought about

how I was going to get past this difficult part of my life. I started to slowly recover. I made small goals each day, such as to exercise for 30 minutes, call a friend, take a shower, write down something I was grateful for, do the dishes, finish that brief. When I accomplished a goal, I crossed it off my list and it gave me a sense of purpose.

It did not happen overnight, but I slowly started to feel like I was getting myself back.

I walked the dogs and came home feeling refreshed. I called a friend who also has depression and I told her everything. It was comforting and therapeutic to talk to someone else who understood. I talked to my mom and was surprised to learn that she had depression when she was my age. She taught me some healthy coping mechanisms. I started meditating and taking it seriously and started to feel a sense of calm warming over me. I started eating healthy foods.

After about six weeks, I could tell that the antidepressants were helping. I was sleeping more soundly and I started to become more motivated. I did not wake up with a negative thought. I started to get excited about what goal I was going to check off my list that day.

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I know that I might always have anxiety and depression, and that is ok, because now I know that I can cope with it. With the help of medicine, a balanced diet, daily exercise and a support system, it is possible to overcome depression. There will always be things that I cannot control: what other people do, how other people think, the past. But I can control my mindset and my wellbeing.

If you find that you are depressed, stressed, anxious, or overwhelmed, seek help. The Ohio Lawyers Assistance Program helps lawyers, judges and law students manage life's stresses.

OLAP has saved lives, careers, marriages and families. All inquiries are confidential. (800) 348-4343 / ohiolap.org

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Law Related Groups - Greater Dayton Area DEI Legal Roundtable

The Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable focuses on implementing strategies to increase diversity, promote inclusion and advance equity in the Dayton-area legal community. Meetings of the Legal Roundtable are open to all legal professionals and law students. Please send your contact information to Ellen.Geron@ ThompsonHine.com to be added to the Legal Roundtable distribution list.

Diversity Mentoring Program and Virtual Mock Interviews The University of Dayton School of Law (UDSL) and the Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable are partnering together to offer mentoring and virtual mock interview programs between diverse UDSL law students and Dayton area legal professionals.

Mentoring Program The purpose of the mentoring program is to provide encouragement, support and training to diverse law students while strengthening their ties to Dayton and building their professional relationships in the Dayton legal community.

How it Works Students (mentees) will be paired with legal professionals (mentors) based on their strengths and interests in particular areas of law. Each month, mentors and mentees will be assigned a task to complete based on a set curriculum. The curriculum starts in February and ends in May. The assigned tasks are designed to facilitate conversations and help build meaningful mentor-mentee relationships.

Curriculum includes, but is not limited to: •Professional Branding & Self-Awareness Assessment •Public Speaking & Effective Communication •Academic Success •Networking & Building Professional Relationships •Ethical Obligations •Work-Life Balance & Mental Health •Job Searching & Interview Tips Virtual Mock Interviews In addition to the mentoring program, students may consider participating in a half-day virtual mock interview program that aims to give them an opportunity to hone their interview skills. Students will have the opportunity to participate in a series of mock interviews with several practitioners of various types of law representing different law firms.

Important Dates: •Week of January 2, 2023 – Mentoring pairs are notified •January 13, 2023 – Kickoff event •January 28, 2023 – Virtual mock interviews If you have questions or comments about the Mentoring Program or Mock Interview Program, please contact Zion Savory at Zion.Savory@ThompsonHine.com or Sarah Chi at chis01@udayton.edu.

30

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DBA Members on the Move

Jaren Hardesty

Nathan Vanderhorst.

The Law firm of Bieser, Greer & Landis is proud to announce two new associate attorneys have recently joined the firm: Jaren Hardesty and Nathan Vanderhorst.

Jaren is a native of Frankfort, OH, an Ohio University alumnus and a 2022 graduate of the UDSL. He graduated law school with honors in areas relating to family law, employment law, criminal law, education law and constitutional law.

Jaren has spent time working in two different prosecutor’s offices, clerking for Bieser, Greer and assisting a law school professor in research and the authoring of an article that appeared in a national publication. He is an active participant in the DBA IOC and is a member of the OSBA. Nathan is a native of Cincinnati, OH, an Ohio State University alumnus and a 2022 graduate of Emory University School of Law. While at Emory, he held leadership positions in various organizations including those benefitting international refugees and American military veterans, and upon graduation received the Order of Emory Advocates honor for outstanding achievement in advocacy. Prior to law school, Nathan spent five years in the insurance industry and then during his law school summers, clerked with an insurance coverage firm in Connecticut, interned with an Atlanta-area judge and was a research assistant.

Both Jaren and Nathan will be joining Greer’s active litigation practice providing support in all areas of civil and criminal litigation.

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