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The Magazine of the Dayton Bar Association | JANUARY 2016 | Vol. 65, No. 5


Bar Briefs

happy new year !


Bar Briefs


January 2016 | Vol. 65, No.5

Dayton Bar Association Board of Trustees

Features 4 trusteeS MESSAGE Looking Back and Looking Forward By Dale E. Creech Jr., Esq.

2015 – 2016

Kermit F. Lowery President


Susan D. Solle

First Vice President

Brian L. Wildermuth

Second Vice President

Barbara J. Doseck Secretary

Christopher B. Epley Treasurer

Dale E. Creech Jr. Member–at–Large

Lynnette Dinkler Member–at–Large

Julia J. Martin


Merle F. Wilberding Member–at–Large

Richard P. Perna

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

on behalf of the dba & DBA Foundation Salute! The Honorable Walter H. Rice


dba holiday luncheon recap


bench bar media forum


bar hunger initiative

By Bonnie Beaman Rice

By Kristina E. Curry Esq. By Jennifer A. Kirby Esq. Paralegal Committee Takes Early Lead


The chancery club luncheon

By Christina M. Spencer Esq.

November Recap: Montgomery County Veterans Treatment Court


from the judges desk By Hon. Michael L. Tucker


By John ( Jack) Meagher, Retired Judge


William B. Wheeler, ex officio Executive Director

Departments 6 Barrister of the Month: beth a. kolotkin esq.

DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July. Paid subscription: $30 / year

By Mary K. C. Soter Esq.


Committee meeting dates


Continuing Legal education


Classifieds & Marketplace

Library of Congress ISSN #0415–0945 William B. Wheeler, Executive Director Shayla M. Eggleton, Coordinator Publications & Design Phone: 937.222.7902 Fax: 937.222.1308

upcoming events 5 mock trial competition Friday, January 29th | 11:30am | Montgomery County Courts

The contents expressed in the publication of Dayton Bar Briefs do not necessarily reflect the official position of the Dayton Bar Association. 2

Dayton Bar Briefs January 2016






DBA ANNUAl PARTNERS 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

PlATiNUM PARTNERS Eichelberger Foundation Estabrook Charitable Trust Faruki Ireland & Cox P.L.L. jack W. and sally d. eichelberger Foundation

Eichelberger, longtime Oakwood residents to enhance the legal profession, the arts and the Greater Dayton community through the awarding of grants. Jack Eichelberger was a well-known Dayton attorney and real estate investor. Trustees: Dave Greer, Gary Froelich and Neal Zimmers.

Sponsor of: • Chancery Club Luncheons • New Admittee/Member Reception • First Monday in October Celebration • DBA and UD Law Student Events

• Women in Law Forum

estabrook charitable trust

Administered by Porter Wright Morris & Arthur LLP | Bruce Snyder - Trustee

Annual Grants to the DBA (This support makes these events affordable for all members): • Bench Bar Conference • Diversity Day • Annual Meeting

Faruki ireland & cox p.l.l. www.fi claw.com With offi ces in cincinnati & dayton

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

GOLD PARTNER Thompson Hine LLP thompson hine llp www.thompsonhine.com

Established in 1911, Thompson Hine is a business law firm dedicated to providing superior client service. The firm has been recognized for ten consecutive years as a top law firm in the country for client service excellence in The BTI Client Service A-Team: Survey of Law Firm Client Service Performance. With offices in Atlanta, Cincinnati, Cleveland, Columbus, Dayton, New York and Washington, D.C., Thompson Hine serves a premier business worldwide.

Contact Bill Wheeler at bwheeler@daybar.org or 937.222.7902 for information about becoming a Annual Partner.


January 2016 Dayton Bar Briefs


trustees message

Looking Back and Looking Forward! A

s we have reached the end of the year, it’s often instructive to look back at accomplishments and look forward to new goals for the upcoming year. With that in mind, I thought I would outline some of the Bar Association’s successes in 2015 and upcoming goals.

• Free legal research for all DBA members with Fastcase This included live training sessions, research “tips and tricks” on the DBA website and website links to training webinars for CLE credit at no cost.

• Outreach visits to member law firms These meetings, focusing initially on mid-size and large firms, had a two-fold purpose: to better acquaint our members with the programs, services and benefits provided by the DBA and to seek input from the membership on ways to increase the value of membership. In addition to the law firm visits, the DBA conducted a luncheon discussion for solo and small office firms.

• Hosted and conducted both the district and regional high school mock trial competitions in Dayton Raising awareness of and interest in the law among young people. The DBA thanks everyone who volunteered to help make these competitions a success.

• Launched a series of successful “Women in the Law” Forums These bring to light the issues facing women in the legal profession.

• Bench Bar Forum The DBA assumed the administration of the these events that bring attorneys, judges, media and law enforcement officials together for discussion of issues they all face. This year, emphasis was placed on expanding the participation from each group in the semi-annual forums.

• Introduction of “Peanut Butter & Justice Program” The Public and Member Service Committee in partnership with the VLP, introduced this program in order to help reduce hunger throughout the area, and as a public service initiative to assist under privileged school children.

By Dale E. Creech Jr. Esq. Member at Large Premier Health Partners

• Creation of the “Barrister Bowl” A charity bowling event with proceeds going to non-profit organizations in our community. This year the DBA helped fund three local non-profits (House of Bread, Life Centrals and Reach Out) who serve the disadvantaged.

• Partnering with UDSL For the promotion of a copy of the Magna Carta in the 800th year since it was sealed, which helped create the basis for common law.

• DBA “Wills for Heroes” Program This year reaching a significant milestone in serving more than 1,100 First Responders/spouses/significant others since the program’s inception.

• 2015 Bench Bar Conference This year featured three notable speakers: Professor Nicholas Vincent, from England, the world’s leading authority on the Magna Carta; William Henderson, Indiana University Law School, speaking on the future of law in America and Justice Judith French of the Ohio Supreme Court. These were just some of the highlights, not including the day to day services provided by the DBA to its members.

The Board has already begun focusing on 2016, with the following major goals being planned: • Additional reach out to members to identify and provide those programs and services of most value to them; • Assist newer attorneys with the transition to the practice of law; • Provide value to DBA members in all stages of their professional career; • Continue to support efforts to promote access to the justice system in our community.

This will be my last Trustee’s letter, as my term will expire in June, so I want to publicly say how much I have enjoyed my service on the Board. I also want to specifically acknowledge the leadership of Kermit Lowery as Board Chair, and, as always, Bill Wheeler who is one of the most capable Executive Directors I have ever encountered in over 35 years of my serving on community boards.

A Jack-of-Many-Trades, Dale “tickles the ivory” at the 2015 DBA Holiday Luncheon! 4

Dayton Bar Briefs January 2016

Happy holidays to all and my best wishes for a successful and prosperous new year! 937.222.7902

The Dayton Bar Association and The DBA Foundation


The Honorable Walter H. Rice To commemorate the occasion and to honor all that Judge Rice has and continues to contribute to the Dayton bench and bar, the Dayton Bar Association Foundation commissioned a bronze plaque that will hang in the Dayton Federal Building. The plaque will feature a relief of Judge Rice as well as the following quote from Judge Rice’s speech,

“I am Proud to be a Lawyer, and You Should Be Too”: “The price of freedom is, in truth, eternal vigilance. One who trades freedom for security will have neither. The war on crime, drugs and terror must never be a war on the Constitution. If the Constitution no longer can protect the worst of us, it can never hope to protect the best of us.”


Jeff Ireland, 2015-2016 President of the DBA Foundation, extended the gratitude of the DBA members and the Foundation and presented Judge Rice

with a mock-up of the plaque.

Photography for the event was provided by Valerie Hawkins Photography

January 2016 Dayton Bar Briefs


Barrister of the month

Beth A. Kolotkin Esq. Also known as “Ima Raskal”


ll of us who are members of the DBA can brag that we graduated from law school, but there is only one member who can brag that she graduated from “Clown College”. That is Beth Kolotkin. She learned to be a clown as a tribute to her son, Kalman, who loved clowns. When Kalman lost his battle with cancer at the age of four, nine clowns attended his funeral. Having seen Beth perform as a clown, this writer can say that she believes that a different personality steps into her body.


Dayton Bar Briefs January 2016

Beth grew up on Bay Shore, Long Island, New York. She attended the State University of New York at Stoney Brook and graduated with a major in English in 1976. She started at U. D. Law School in l977 and was a member of Phi Delpha Phi Law Fraternity, Renquist Chapter. She and her partner, Warren Landau, were champions in the Moot Court competition while in their first year at U. D. Law School, the initial pairings were by choice. Warren and Beth went to college together at Stony Brook and neither of them knew any of the other first year students. Warren said that Beth’s style was a bit “folksy” and rather persistent, “she is not shy - she is very outgoing”. While in law school, Beth was a law clerk for Joe Litvin. She clerked for Judge Michael Merz while he was a Judge in Dayton Municipal Court the summer after her second year. She also worked in the Night Prosecutor’s Program at Dayton Municipal Court, where she had to

sit down with litigants and try to get them to agree. After graduation, she practiced with Joe from 1980 to 1985 and she also did research for a physician at Wright State Medical School. Beth is a perfect example of the fact that if someone wants to get through law school badly enough, they will find a way to pay for it. She said she was taught to be conciliatory when she was with Joe. When clients say they want to fight a case as a matter of principal, she says, “How much principal can you afford?” While she was with Joe, he encouraged her to start her own practice, which she started her practice in 1985 in the Liberty Tower. She has been in that building (formerly the Hulman Building) ever since. Joe said that they have remained good friends all these years.

continued on page 7


Begin the New Year differently Join a DBA Committee! Grow personally and professionally through committee participation!


Small Firm/Solo Office

Mon. January 4h @ Noon

Juvenile Law @ Juvenile Court

Mon. January 4th @ 4:00pm

Diversity Issues

Tues. January 5th @ Noon

CANCELED - Young Lawyers Division

Wed. January 6th @ Noon

Estate Planning Trust & Probate Law

Wed. January 6th @ 4:00pm

Federal Practice

Log on to view “Interest Groups”



Mon. January11th @ Noon

Civil Trial Practice & ADR

Tues. January12th @ Noon

Labor & Employment

Tues. January12th @ Noon

Appellate Court Practice

Wed. January 13th @ Noon

Environmental Law & Real Property

Wed. January13th @ Noon

Domestic Relations Law @ DR Ct Judge Woods CrtRm.

Thurs. January 14th @ Noon

CANCELED - Paralegal

Tues. January 19th @ Noon

Criminal Law and It’s Enforcement

Wed. January 20th @ Noon

Workers Comp and Social Security

Thurs. January 21st @ Noon

Corporate Counsel @ Bravo Italian Resturant

Thurs. January 28th @ 4:00pm

continued from page 6

She does Ohio Victim’s of Crime cases, which she considers to be her pro bono work. In her practice, she said “I don’t know when I have ever charged a client for the full amount of hours I have put into their case.” When asked about what advice she would have for young lawyers starting out, she said “Learn how to communicate with other lawyers in a respectful way.” She said that young people are so wed to their gadgets and devices and technology, they forget how to treat people like people. She said, “This client is a person and needs to be heard.”

Mary K.C. Soter Esq. DBA Editorial Board Mary K.C Soter Law Office www.daybar.org

? w o n uK o Y d a Di ay Join

ers M Time b m e y DBA M ittee at An Comm ting e -ore M ittee m m o Any C d ttees n i e t m m At BA Co D h t i arn W e L & Share January 2016 Dayton Bar Briefs



dba annual

holiday luncheon Thursday, December 17 | Sinclair College, Bldg. 12

Celebrating VLP’s Year of Service to Our Community T

he Annual Dayton Bar Association Holiday Luncheon was held at Sinclair College on Thursday, December 17, 2015. As friends and colleagues began to gather together once again in celebration of the tremendous efforts of the Greater Dayton Volunteer Lawyer Project, Dale E. Creech Jr., Esq. from Premier Health Partners provided musical accompaniment displaying his considerable talent on the piano. The buffet luncheon was delicious, and the DBA again did a great job of putting this event together this year. Thanks to all who helped organize this event and to the great staff at Sinclair College. Kermit F. Lowery Esq., DBA President, welcomed everyone to the event and advised the crowd that Bill Wheeler, Executive Director of the DBA, in absentia, wanted to remind us all to remember our parking passes and “keep the train moving on schedule” for the event. Without further ado, Kermit announced the DBA recognition of the 2015 25-Year Honorees. Congratulations, 25-year Honorees, and thank you for your service to our legal community! Kelly Henrici, Executive Director of the Greater Dayton Volunteer Lawyers Project then took the podium and thanked all of the sponsors of the event and VLP volunteers. Kelly informed the audience of some very impressive numbers for this year: VLP has closed over 2,300 matters and logged 3,475 hours, up 15% over last year, of volunteer attorney time. There were 48 first-time volunteers in 2015 who logged more than 300 hours. This year, the value of attorney volunteer services exceeds $600,000.00! Way to go VLP! Kelly also announced this year’s recipients of the “Unsung Heroes of the VLP” award, created to recognize attorneys who have selflessly given of their time and talent to those in our community who need legal assistance in civil matters. This year, Jessica Salisbury of Thompson Hine and Chas Kidwell of Porter Wright received the award. Congratulations to Jessica and Chas! Kelly thanked many others including Kathy Miller and Tom Snelling of the DBA staff, Board Member with a special thanks to Hon. Judge Mary Wiseman, and Susan Bridgman, Esq., incoming President of the GDVLP. Thank YOU, Kelly, for your service to the GDVLP! The Hon. Walter H. Rice provided the introduction to keynote speaker retired congressman and former U.S. ambassador Tony P. Hall, whose presentation entitled “Changing the Face of Hunger” addressed both the global and local issue of hunger and food security. Tony emphasized that hunger is a “serious national security issue” with an example of how a parent sending his child to one of the Madrassa schools in Pakistan that “teach hate” also fed his child. With that, Tony said, “Hunger is not a partisan issue.” 49 Million in the U.S. live at risk today, they are hungry. Tony also talked about hunger in Dayton, with Dayton being the 4th hungriest city in the U.S., “we need to have a plan.” Once of the lessons that Tony recalls from Mother Teresa, during his travels is that all we really need is to “do the thing in front of you”. He recalls that when asked about her efforts being a drop of water in a bucket, Mother Teresa responded that her efforts were a “drop in the ocean, but the ocean would be less without that drop”. Tony reminded us all that no one’s efforts to fight hunger, no matter how small, should ever be discounted. The peanut butter is important, Tony said. The Bar Hunger Initiative, Peanut Butter and Justice, challenges every member of the bar to bring 1 or more jars of peanut butter to every Bar event. So far this year, 974 pounds of peanut butter have been collected with 135 ¾ pounds of peanut butter collected at the Annual Luncheon this year! Keep that peanut butter coming, and everyone have a safe and healthy New Year!

Thank you to our sponsors for their generous support! Dayton Bar Association

Platinum Partner Faruki Ireland & Cox P.L.L. Estabrook Charitable Trust

By Kristina E. Curry Esq. DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA

Administered by Porter Wright Morris & Arthur, LLP

GOLD SPONSORS: Thompson Hine LLP 8

Dayton Bar Briefs January 2016


Keynote Speaker: Congressman/AmbassadorTony P. Hall

Kermit F. Lowery Esq. DBA President

Hon. Walter H. Rice, Kelly Henrici Esq., GDVLP Exec. Dir. and Congressman/Ambassador Tony P. Hall

A few of the 25 year Honoree in attendance: Mary E. Lentz Esq., Jenifer L. Wilhelm Esq., Hon. Mary Kate Huffman and Joseph E. Gibson Esq.

Dale DBA E. Creech Boar J d Me r., Esq. mber


January 2016 Dayton Bar Briefs


Local Legal news

Dayton Attorney Becomes President-Elect of the Ohio State Bar Foundation P

ickrel, Schaeffer and Ebeling is proud to announce that Andrew C. Storar has been elected as President Elect of the Ohio State Bar Foundation (OSBF). He will begin his 1 year term in January, 2016. Comprised of nearly 1000 attorneys, The OSBF is the charitable arm of the Ohio State Bar Association. Their mission is to improve public understanding of the law and build a better justice system. To accomplish this they do several things including giving grants, providing leadership programs, and recognizing contributors through different Awards. In the past year OSBF has provided nearly $900k in grants for educational and Access to Justice programs. Over the years they have also provided grants to such organizations as the YMCA, Big Brother Big Sisters, Ohio Military Veterans Legal Programs, Ohio Domestic Violence organization and hundreds of other organizations throughout Ohio that are dedicated to educating the public about the justice system. The OSBF also sponsors Law and Leadership Programs. The OSBF is a major supporter of the Law and Leadership Institute (LLI). The goal of the LLI - to “Change a life. Improve a profession” - and it has done just that. They assist Ohio’s inner city youth who

10 Dayton Bar Briefs January 2016

are interested in pursuing a legal career. Of the youth who are involved in LLI, 90% of the students graduate from high school and continue on to higher education. The program mentors youth throughout their high school career, teaches them the dynamics of working in a professional atmosphere, coordinates internships with local organizations, provides the

students with a network of professionals and most importantly, gives them the confidence to succeed. And finally, the OSBF says “thank you” to all of the donors and organizations that see the importance of helping them build a better justice system. Each year, the OSBF hosts a Fall dinner where awards are given to the orga-

By Kristina E. Curry Esq. DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA nizations that have helped improve and donate to the grants and programs, individuals who volunteer their time to make the OSBF grants and programs possible, and celebrate successes. Andy has been a Fellow with the Foundation for 11 years while serving on the Board of Trustees for six. He is also an OSBF Distinguished Life Fellow Associate. In his new role, he will lead an accomplished group of legal professionals who are also committed to promoting public understanding of the law and improvements in the justice system. Andy’s goal is “to preserve the honorary nature of the Foundation, expand its development efforts in order to provide more support to the many worthy projects for which organizations are seeking grants and mostly improve access to justice and understanding of the law.” Celebrating 100 years of serving clients, PS&E would like to congratulate Andy as he helps the OSBF achieve their goals. Whether it’s educating the public of the law, improving the justice system, increasing the support for lawyers and judges, or empowering our youth to get involved, the OSBF makes an impact across the state of Ohio. More information about how you can support the Ohio State Bar Foundation can be found at OSBF.net.


2015-2016 T

Sustaining Members

he Dayton Bar Association would like to acknowledge the contributions made by the Sustaining Members for the 2015-2016 fiscal year. With voluntary payments over and above normal dues, Sustaining Members are essential to the work of the Dayton Bar Association. 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.

Honorary Sustaining Members

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: Hon. William A. Clark Ralph E. Heyman Esq. Thomas E. Jenks Esq. William H. Macbeth Esq. William A. Rogers Jr. Esq.

Sustaining Members

Antony A. Abboud Esq. Hon. Dennis J. Adkins Charles F. Allbery III Esq. James T. Ambrose Esq. Debra B. Armanini Esq. Kevin W. Attkisson Esq. Gary W. Auman Esq. Theresa A. Baker Esq. Rebecca A. Barthelemy-Smith Esq. Richard J. Beckmann Esq. Harry G. Beyoglides Jr. Esq. Hon. Timothy S. Black Amy R. Blair Esq. Susan Blasik-Miller Esq. Robert M. Blue Esq. Gary M. Blumenthal Esq. Randall N. Bothmann Esq. Richard A. Boucher Esq. Karen D. Bradley Esq. Dwight D. Brannon Esq. Joan B. Brenner Esq. Matthew D. Bruder Esq. Ryan L. Brunk Esq. Ronald L. Burdge Esq. Frederick J. Caspar Esq. Robert L. Caspar Jr. Esq. William O. Cass Jr. Esq. Mark R. Chilson Esq. Jeffrey G. Chinault Esq. Charles A. Claypool Esq. John M. Cloud Esq. Brett L. Coakley Esq. Rebecca A. Cochran Esq. Kristina M. Coen Esq. Brooks A. Compton Esq. W. Michael Conway Esq. Christopher F. Cowan Esq. Jeffrey T. Cox Esq. www.daybar.org

Dale E. Creech Jr. Esq. F. Ann Crossman Esq. John A. Cumming Esq. Robert M. Curry Esq. Wayne H. Dawson Esq. Thomas E. DeBrosse Esq. James D. Dennis Esq. Richard G. Denny Esq. Karen R. Dillon Esq. Martina M. Dillon Esq. Stephanie D. Dobson Esq. Marilyn R. Donoff Esq. Daryl R. Douple Esq. Jenna M. Downey Esq. Hon. Frederick W. Dressel Trisha M. Duff Esq. Michael E. Dyer Esq. Joseph R. Ebenger Esq. William B. Elliott Esq. Douglas A. Fannin Esq. Charles J. Faruki Esq. Jonathan E. Faulkner Esq. Francesco A. Ferrante Esq. James L. Finefrock Esq. Patrick A. Flanagan Esq. Canice J. Fogarty Esq. Martin A. Foos Esq. Neil F. Freund Esq. Gary L. Froelich Esq. Mag. David H. Fuchsman Sarah J. Gable Esq. Carmine M. Garofalo Esq. Charles F. Geidner Esq. Caroline H. Gentry Esq. Daniel J. Gentry Esq. Mark E. Godbey Esq. Carl G. Goraleski Esq. Hon. Barbara P. Gorman James F. Gottman Esq. Gary W. Gottschlich Esq. David B. Grieshop Esq. Ted Gudorf Esq. Vanessa L. Guenther Esq. Dennis E. Gump Esq. Christine M. Haaker Esq. Hon. Michael T. Hall Laura G. Harrelson Esq. Jennifer Hann Harrison Esq. Aaron P. Hartley Esq. James K. Hemenway Esq. Lawrence W. Henke lll Esq. R. Mark Henry Esq. J. Michael Herr Esq. James P. Hickey Esq. Stanley A. Hirtle Esq. Jonathan Hollingsworth Esq. Carol Jacobi Holm Esq. Steven B. Horenstein Esq. Paul L. Horstman Esq. Hon. Mary Kate Huffman Richard M. Hunt Esq. Kenneth J. Ignozzi Esq. Carley J. Ingram Esq.

Thank you for your support!

D. Jeffrey Ireland Esq. David E. Izor Esq. Matthew R. Jenkins Esq. William A. Jividen Esq. Keith R. Kearney Esq. Ronald D. Keener Esq. Thomas W. Kendo Jr. Esq. Richard A. Killworth Esq. Scott A. King Esq. James R. Kirkland Esq. Richard G. Knostman Esq. Thomas A. Knoth Esq. Julia C. Kolber Esq. Melissa M. Koppenhoefer Esq. James G. Kordik Esq. Edward M. Kress Esq. Hon. Michael W. Krumholtz Konrad Kuczak Esq. Robert E. Lachey Esq. Judith A. LaMusga Esq. Hon. Dennis J. Langer Laurence A. Lasky Esq. Erin M. Laurito Esq. Michael A. Ledbetter Esq. William J. Leibold Esq. Gary J. Leppla Esq. Dennis A. Lieberman Esq. Richard A. F. Lipowicz Esq. L. Anthony Lush Esq. Michelle M. Maciorowski Esq. Barry W. Mancz Esq. Douglas A. Mann Esq. Laura G. Mariani Esq. David W. Marquis Esq. M. Todd Marsh Esq. Laura J. Martin Esq. Dianne F. Marx Esq. Craig T. Matthews Esq. Ronald J. Maurer Esq. Hon. Frances E. McGee David M. McNamee Esq. Hon. John M. Meagher Hon. Michael R. Merz Adam R. Mesaros Esq. David P. Mesaros Esq. Stephen D. Miles Esq. Michael B. Miller Esq. John R. Mohr Esq. Hon. Michael J. Newman Bruce I. Nicholson Esq. Victoria L. Nilles Esq. Allen R. Norris Esq. Wayne P. Novick Esq. Hon. Timothy N. O’Connell Stephen P. O’Keefe Esq. Alvarene N. Owens Esq. Gregory S. Page Esq. Bryan K. Penick Esq. Timothy G. Pepper Esq. Maureen Pero Esq. John D. Poley Esq. Vincent P. Popp Esq. Robert E. Portune Esq.

Cara W. Powers Esq. Thomas G. Rauch Esq. John P. Rieser Esq. John H. Rion Esq. Jon P. Rion Esq. Edward N. Rizer Esq. Paul B. Roderer Jr. Esq. John M. Ruffolo Esq. Marybeth W. Rutledge Esq. B. Joseph Schaeff Esq. Steven P. Schmidt Esq. Alfred W. Schneble III Esq. Steven C. Scudder Esq. Jon M. Sebaly Esq. Todd D. Severt Esq. Carl D. Sherrets Esq. Thomas W. Simms Esq. Hon. Gregory F. Singer Hon. Richard S. Skelton Ralph A. Skilken Jr. Esq. Charles W. Slicer Sr. Esq. John A. Smalley Esq. Bradley C. Smith Esq. Edward M. Smith Esq. John D. Smith Esq. R. Todd Smith Esq. Brian A. Sommers Esq. Mary K.C. Soter Esq. Lu Ann Stanley Esq. Mark E. Stone Esq. Jeffrey A. Swillinger Esq. Joseph R. Tafelski Esq. Thomas B. Talbot Jr. Esq. Jennifer D. Theibert Esq. Maxine S. Thomas Esq. Ira H. Thomsen Esq. Merideth A. Trott Esq. Hon. Michael L. Tucker Mark A. Tuss Esq. Timothy N. Tye Esq. Paul M. Ulrich Esq. Michelle S. Vollmar Esq. H. Charles Wagner Esq. Geoffrey P. Walker Esq. Joseph W. Walker Esq. Robert C. Walter Esq. Brian D. Weaver Esq. George L. Wenz lll Esq. Ellen C. Weprin Esq. James I. Weprin Esq. Thomas P. Whelley ll Esq. Jenifer L. Wilhelm Esq. Mathew E. Willenbrink Esq. Paul W. Winks Esq. Jeffrey A. Winwood Esq. Hon. Mary L. Wiseman Michael L. Wright Esq. Mag. Kristi A. Wuebben Steven E. Yuhas Esq. Patricia A. Zimmer Esq.

January 2016 Dayton Bar Briefs



Bench Bar Media Forum H

osted by the Dayton Bar Association, the Bench Bar Media Forum encourages members of the bar, judiciary, media outlets and various law enforcement agencies to come together to discuss a current event or issue affecting Dayton citizens. The purpose of the luncheon is for open and frank discussions that will encourage inter-agency education and cooperation. November’s luncheon topic was the heroin and phentanyl (synthetic heroine) epidemic surging through not only the Dayton area, but all of Ohio. With attendees including local Judges, the U.S. District Attorney’s Office, County Sheriffs, the FBI, local media outlets and practicing attorneys, the conversation was informative and impactful. November’s discussion was led by Jeff Cox of Faruki, Ireland and Cox and Magistrate Judge Michael Newman of the U.S. District Court for the Southern District of Ohio. Attendees learned that the heroin epidemic has infiltrated all levels of socio-economic status. Heroin does not discriminate - an individual’s age, gender, geographic location, income and level of education are irrelevant. Law enforcement is seeing addicts from all walks of life.

By Jennifer A. Kirby Esq. Chair: DBA Editorial Board Surdyk Dowd & Turner Co., LPA

The U.S. Attorney General’s Office in Dayton has seen such a large increase in heroin and phentanyl cases that it has formed a task force to deal with these matters. Law enforcement agencies echoed these observations by discussing the increase in arrests related to heroin and phentanyl use. It was clear to see that heroin is not only having disastrous effects on resources, but is also destroying families. Local media representatives noted that heroin is so frequently a topic of coverage that viewers and readers are asking that the media cease featuring stories related to the heroin epidemic. The topics considered during the luncheon included a brief debate about whether heroin dealers are truly non-violent offenders or if they should face manslaughter charges for “dealing death.” Attendees also talked about the way addicts are treated and handled subsequent to arrest. Should law enforcement agencies have access to Narcan so that they can administer it to a heroin user in need? Should an inmate be given access to detox and rehab programs? The focus throughout the conversations revolved around what it will take to stop the heroin epidemic from getting worse.


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While it is impossible to solve a problem as widespread as the heroin epidemic in an hour, attendees were able to reach a few conclusions. First, local agencies should consider forming an inter-agency task force to encourage community based prevention and education. In addition, Dayton citizens need to realize that we cannot “arrest our way out” of this problem and that we need to lose the prejudices we have for heroin addicts. As someone who has read articles about the heroin epidemic, attending the media forum helped me see the way the heroin epidemic is playing out in our community. The willingness of the various agencies to express what they are seeing on the ground level gave me a truer sense of how dire this situation really is. However, I was encouraged by the hope expressed during the media forum that we as a community can come together to solve this problem. Be on the lookout for the next Bench Bar Media Forum. All DBA members are encouraged to attend.

When clients come looking...


Sign up for DaytonLawyerFinder.org today

For more information contact:

Bill Wheeler, bwheeler@daybar.org Chris Albrektson, calbrektson@daybar.org 12 Dayton Bar Briefs January 2016



Paralegal Committee Takes Early Lead! The Challenge

By Bonnie Beaman Rice Bar Hunger Initiative

Results through November

The “Bar Hunger: Peanut Butter and Justice Challenge” is a project of the DBA to address the issue of hunger in our community. The challenge to each of us: Bring at least one jar (or more!) of peanut butter to every Bar event.

Supportive Partners

At the personal request of various Bar members, other organizations in the community have agreed to also collect peanut butter. These partners include: • Law students from the University of Dayton • Montgomery County Commissioners • Montgomery County Administration Building • Sinclair Community College • Beth Abraham Synagogue • City of Vandalia and Vandalia Police Department • First Baptist Church


Want to take over the lead, ask other groups to help collect for your committee!

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





National Geographic LIVE! BRIAN SKERRY BOB POOLE(Wildlife Film Maker) AMI VITALE (Photo Journalist) January 2016 Dayton Bar Briefs



November Chancery Club Montgomery County Veterans Treatment Court N

ovember’s Chancery Club Luncheon (deliciously catered by Franco’s) featured an informative presentation by the Honorable Dennis J. Adkins on the Montgomery County Veterans Treatment Court (VTC). Recognizing that some of our nation’s Finest return home from combat with wounds and scars that are not merely physical, Judge Adkins founded the VTC as an effort to treat the mental and emotional scarring of our veterans who have become entangled in the criminal justice system. The existing criminal justice system is not equipped to deal with the unique needs of these veterans, who, because of their personal encounters with horrors of war, have difficulty coping with the transition from soldier to civilian life. During this difficult transition, many veterans are affected by the overuse of drugs and/or alcohol, which inevitably leads to criminal behavior. The VTC is an intensive probation program, designed to assist veterans involved in criminal behavior and suffer disorders due to their experiences at war. In November 2013, Judge Adkins founded the VTC and presided over its initial session, which began with a total of eight veterans. The VTC is a voluntary program that includes regular court appearances before a designated VTC judge in addition to treatment plans specifically designed for each veteran. Treatment plans offer the veterans the opportunity to develop job skills, connect to VA services, rebuild family and community ties, access benefits, engage in treatment rather than incarceration, reconnect with veteran peers, and stabilize their living situation. Treatment is provided through the combined efforts of the Montgomery County VTC Judge, the Probation Department, the Department of Veterans Affairs, and other community agencies. Undoubtedly, the VTC is a much more intensive program than ordinary probation. The structure of the VTC is separated into three phases: In Phase One, the veteran’s treatment plan is developed by the veteran and a treatment team. Together, they formulate personal achievement goals (e.g., GED completion, vocational/educational counseling, anger management, parenting skills) and treatment plan goals. Phase Two is the maintenance phase in which the veteran and treatment team reassess the veteran’s needs, identify goals that are challenging to the veteran, and focus on ways to improve reaching treatment plan goals.

14 Dayton Bar Briefs January 2016

By Christina M. Spencer Esq. DBA Editorial Board Freund, Freeze & Arnold, A Legal Professional Association

Phase Three is the re-integration phase. The veteran’s ongoing recovery needs are assessed and include total abstinence from all drugs. The focus is on problem-solving and daily living skills. During this phase, the veteran’s families can get involved and attend sessions with the veteran so the veteran can return to the community—and the family—as a productive and responsible member of society and build a stable life. One of the most defining features of the VTC is mentorship. Each veteran has a one-on-one mentor, a fellow veteran who served in the same branch of our Armed Forces. The mentors are there to talk with, guide, assist, and be friends to the veterans as they go through the rehabilitative process. The United States Armed Forces is, as Judge Adkins described, “the strongest human relation core of individuals.” The “veterans helping veterans” culture in the VTC is evident not only in the mentorship aspect of the program, but also in the brotherhood between the veterans who are members of the program. Judge Adkins explains to the veterans at the beginning of the program that the most important qualities of the program are honesty and accountability. In times of success, the veterans applaud and praise each other. In times of failure, they support and encourage one another. The transformation of the individuals who go through VTC, Judge Adkins notes, is remarkable. When individuals choose to join the VTC, they choose to commit to a more intensive rehabilitation program than traditional probation. As a result, the completion of treatment in the VTC is marked by a graduation ceremony. This year, the VTC graduated ten members with astounding success. All of the graduates are rehabilitated members of society who, to date, have not have re-offended. The next graduation ceremony is December 16, 2015 at 10:00 a.m. and is open to the public. Judge Adkins concluded his presentation with a call to veterans: the VTC is continuously seeking mentors. For more information, contact Montgomery County Veterans Commission online or call 937-225-4801 ext. 244. The next Chancery Club Luncheon will be held Friday, February 5. Doors open at 11:30am. contact Chris Albrektson to RSVP. The Chancery Club is grateful for the generous sponsorship of the Eichelberger Foundation.


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2015-2016 100% Club



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Firms with 70+ Members WilmerHale

Firms with 30-39 Members

Coolidge Wall Co., LPA Freund, Freeze & Arnold, A Legal Professional Association Montgomery County Public Defender’s Office

Firms with 20-29 Members

Montgomery County Common Pleas Court Pickrel Schaeffer & Ebeling Co., LPA Sebaly Shillito + Dyer University of Dayton School of Law

Firms with 10–19 Members

Bieser Greer & Landis, LLP Dunlevey Mahan & Furry, LPA Faruki Ireland & Cox P.L.L. Horenstein Nicholson & Blumenthal, LPA Montgomery County Domestic Relations Court Rogers & Greenberg, LLP Second District Court of Appeals Surdyk Dowd & Turner Co., LPA

Firms with 5–9 Members

Altick & Corwin Co., LPA Brannon & Associates CareSource City of Dayton Law Department City of Dayton Prosecutor’s Office Dayton Municipal Court Dayton Power & Light Company Douple Beyoglides Claypool Kovich Lipowicz & LaMusga ES Gallon & Associates Gottschlich & Portune, LLP Green & Green, Lawyers Hochman & Plunkett Co., LPA Montgomery County Probate Court Premier Health Partners Subashi & Wildermuth Thorson Switala Mondock & Snead, LLP

Firms with 2–4 Members Albert & Krochmal Allbery Cross Fogarty Baldwin Valley Law, LLC Boucher & Boucher Co., LPA Bricker & Eckler, LLP Burdge Law Office Co., LPA Sam G. Caras Co., LPA

Cincinnati Insurance Company Conner & Williamson Co., LPA Cowan & Hilgeman Craig T. Matthews & Associates, LPA Crossman & Maciorowski, LLC David A. Chicarelli Co., LPA Robert L. Deddens Law Offices Dinkler Pregon, LLC Dysinger & Patry, LLC Elliott & Faulkner, LPA Esler & VanderSchaaff Co., LPA Fox & Associates Co., LPA Gammell Ross & Hoshor, LLC Gounaris Abboud, LPA Hedrick & Jordan Co., LPA Holzfaster Cecil McKnight & Mues, LPA Intili & Groves, LPA Jablinski Roberts & Gall, LPA Jackson Lewis, P.C. Jacox Meckstroth & Jenkins Ronald D. Keener Co., LPA Kendo Alexander Cooper & Engel, LLP Kettering Municipal Court Kirkland & Sommers, LPA Law Offices of Ira H. Thomsen Law Offices of John T. Nicholson, LLC Leppla Associates, Ltd. Liberty Savings Bank, FSB Martin Folino, A Legal Professional Association McNamee & McNamee, PLL Mesaros Law Office Miller Walker & Brush, LLP Montgomery County Municipal Court, Eastern & Western Division(s) Nowicki & Vonderwell, LLC Pyper & Nordstrom, LLC Rieser & Associates, LLC Roberson Law Roderer Law Office, LLC Sherrets Law Offices, LLC John D. Smith Co., LPA Stamps and Stamps Statman Harris & Eyrich, LLC Stephan & Stephan Law Group, LLC Tracy & Tracy Co., LPA Treherne Law Office Helen Wallace, Attorney at Law LLC Winwood Rutledge Co., LLC Young & Alexander Co., LPA

Thank You For Your Commitment to Your Bar Association!


daybar.org/cle DBA Estate Planning Trust and Probate presents:

Tax Law Update #087

January 6 | 12:00-1:00pm | 1.0 hr Committee M $25 | M $35 | NM $45 | PP $0 Presenters: Jackie Otto, CPA and Matt Elsasser CPA Tax law update affecting trusts and estates, personal and business income tax issues. Despite the move away from “temporary” measures, the tax law is in a constant state of flux. Jackie Otto, CPA and Matt Elsasser, CPA, both from RSM US LLP will present important information on federal and state taxation that every attorney needs to know when representing estates, trusts and individuals.


M=Member Rate NM=NonMember Rate PP=Passport MP/NL=Member Paralegal/ New Lawyer Rate NMP/NL= NonMember Paralegal/

New Lawyer Rate


2015 Annual Estate Planning, Trust and Probate Seminar (video)#088

www.daybar.org/cle 937.222.7902

January 20 | 9:00-4:00pm | 6.0 hrs M $215 | NM $300 | PP $0 AGENDA: 9:00-10:00am Law Firm Succession Planning: Passing the Baton to the Next Generation Sarah Worley, Esq., Dungan & LeFevre, Troy 10:00-11:00am Sale of a Law Practice Jay E. Michael, Esq., Columbus 11:00-11:15am Break 11:15-12:15pm Case Law Update on Important Cases and Issues Hon. Jack R. Puffenberger, Judge, Lucas County Probate Court 12:15-1:00pm Lunch Break 1:00-2:00pm Greene County Probate Court “Hour of Power:” New Rules and Best Practices in Greene County Probate Court Hon. Thomas M. O’Diam, Judge, Greene County Probate Court 2:00-2:15pm Break 2:15-3:15pm Document Retention for Lawyers Geoffrey Stern, Esq., Kegler, Brown, Hill + Ritter, Columbus 3:15-4:15pm New Health Care Documents Judy LaMusga, Esq., Douple, Beyoglides, Claypool, Kovich, Lipowicz & LaMusga, Dayton

DBA Workers Comp and Social Security presents:

Current Issues in Workers’ Compensation Law: The Vocational Issues #089

January 21 | 12:00-1:00pm | 1.0 hr Committee M $25 | M $35 | NM $45 | PP $0 Faculty: Dr. Howard Caston, PhD Back by popular demand, Dr. Howard Caston, PhD, will give us insight on the vocational evaluation in a work injury situation. We will explore the issues presented in the Vocational Evaluation from both Worker’ Comp and the Social Security point of view. We will see what the evaluator looks for, what takes place in the interview, as well as the issues addressed for Workers’ Compensation and Social Security along with Personal Injury, cases. New developments and changes in the V.E. methodology will be discussed. He again offers a unique opportunity to open up the ever-increasing importance of the vocational evaluation. Don’t miss this opportunity to see what is going on the vocational side of your case or claim!

Professional Conduct: Top 10 Ethics Complaints (video) #090 January 27 | 1:00-4:15pm | 3.0 hrs of Prof. Conduct M $105 | NM $150 | PP $0 Presenters: John M. Ruffolo Esq., DBA Bar Counsel Mark A. Tuss Esq. and Denise L. Platfoot Lacey Esq., UDSL

16 Dayton Bar Briefs January 2016


Congratulations Judge Walter H. Rice O

n December 1, 2015, the bench, bar, and community came together at the Dayton Art Institute to honor United States District Court Judge Walter H. Rice for over 45 years of dedicated service to the judiciary and the community, including 35 years on the federal bench. Hosted by the Dayton Chapter of the Federal Bar Association, and attended by a sold-out crowd of 320, tributes to Judge Rice were presented by: United States District Court Judge Susan Dlott, Montgomery County Commissioner Deborah Lieberman, Montgomery County Municipal Judge Adele Riley, former CEO of Cox Ohio Publishing and Publisher of the Dayton Daily News Brad Tillson, United States District Court Judge Thomas Rose, and, Judge Rice’s loving wife, Magistrate Bonnie Beaman Rice. Senators Rob Portman and Sherrod Brown, and Congressman Mike Turner, who were unable to attend the event due to duties in Washington, D.C., sent Judge Rice video messages of appreciation and congratulations. The evening also featured the unveiling of the portrait of Judge Rice, painted by retired local attorney, Greg Gibson, and the acceptance of the portrait, along with a tribute, by United States District Court Chief Judge Edmund A. Sargus, Jr. To commemorate the occasion and to honor all that Judge Rice has and continues to contribute to the Dayton bench and bar, the Dayton Bar Association Foundation commissioned a bronze plaque that will hang in the Dayton Federal Building. Jeff Ireland, 20152016 President of the DBA Foundation, was on hand for the event to extend the gratitude of the DBA and Foundation members and present Judge Rice with a mock-up of the plaque, which will feature a relief of Judge Rice as well as the following quote from Judge Rice’s speech, “I am Proud to be a Lawyer, and You Should Be Too”: “The price of freedom is, in truth, eternal vigilance. One who trades freedom for security will have neither. The war on crime, drugs and terror must never be a war on the Constitution. If the Constitution no longer can protect the worst of us, it can never hope to protect the best of us.” Truly reflecting the lifelong passion and widespread impact of Judge Rice, the event brought together family, including wife Magistrate Bonnie Beaman Rice, daughter Courtney Rice, son Michael Rice, brothers-in-law Dr. Joseph Beaman and Fred Beaman, and sister-in-law Linda Beaman, countless friends, numerous federal and state trial and appellate judges, federal and state court staff, representatives from the United States Congress, representatives from the General Assembly, local government leaders, national Federal Bar Association leaders, members of numerous charitable and community organizations, and lawyers and firms, of all types of practice areas, from Cincinnati, Columbus, and Dayton. The evening reminded many of us once again why we are, indeed, “proud to be a lawyer.” Photography for the event was provided by Valerie Hawkins Photography”

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January 2016 Dayton Bar Briefs



Significant Initiatives


By Hon. Michael L. Tucker Montgomery Cty Common Pleas Court

s this is being written, I am nearing the end of my three year stint as the General Division’s Administrative Judge. It has been my honor and privilege to serve in this role for a court that has long been recognized as a model other courts should seek to emulate. I thank Jim Dare, our Court Administrator, the entire court staff, and my fellow judges for their help and support during this three year period. It is now Judge Huffman’s “turn in the barrel,” which means the role of administrative judge will be in very good hands indeed. Several significant initiatives have occurred during my tenure as Administrative Judge which I will take this opportunity to highlight. I take no credit for these initiatives except to have had the good sense to stay out of the way so that the involved judges and court staff could get the job done. The highlighted accomplishments, in no particular order, are as follows:

can be avoided. In May 2014, STOP moved into the Echo Building located within the previous Montgomery County Education and Pre-Release Center at the Bennett J. Cooper Criminal Justice Complex. The Echo Building has the capacity to house 48 male offenders and 48 female offenders. The Echo Building, at first, housed male offenders, leaving the “female side” unoccupied with the anticipation – really hope – that funding could be obtained to open the “female side.” The State of Ohio, as part of the State’s current budget, awarded the court a grant to initiate STOP for Women, with the program accepting female offenders beginning October 5, 2015. This is a significant step in the ongoing adjustment to the reality that the heroin epidemic and other societal changes have resulted in a dramatic increase in female offenders. Jim Dare and his staff are commended for their efforts which resulted in this achievement.

Women’s Therapeutic Court

Veterans Court

Research suggests men and women involved in a drug court setting have different needs. This reality, and the fact that the heroin epidemic was straining the capacity of a single drug court, led to the creation of the Women’s Therapeutic Court. Judge Singer was instrumental in the creation of this specialty court, and he, as the therapeutic court’s presiding judge, has, in conjunction with assigned staff, instituted a number of innovative techniques and policies to promote effective supervision, treatment, and, ultimately, a reduction in recidivism. Judge Singer and the involved staff deserve our appreciation for their willingness to perform this important, but difficult, work.

Returning veterans face many challenges which can include physical limitations, mental issues (including PTSD), a lack of employment opportunity, and a range of other issues. It is not surprising these veterans sometimes become entangled in the criminal justice system. Judge Adkins, sensing a need for particularized programs for such veterans, began to investigate the concept of a Veterans Court. This investiga-

tion culminated in the creation of a Veterans Court which, at any time, is involved in the supervision of 70 or so defendants. The Veterans Court uses programming designed for the special needs of veterans with the goal to provide effective supervision and treatment so that these veterans will not have future involvement with the criminal justice system. Judge Adkins and the staff assigned to the Veterans Court are commended for this important work.

Civil Mediation

Approximately 2 ½ years ago several attorneys approached me with concerns regarding the effectiveness of the court’s mediation program. I asked Judge Krumholtz to investigate these concerns. Judge Krumholtz assembled a committee consisting of lawyers representing the plaintiffs’ and defense bar, a magistrate, and several judges. The committee, after considerable work, made recommendations which were accepted by the court. The most significant change allows the parties to be involved in the selection of the mediator. By all accounts, this and the other implemented changes have created a better and more effective mediation process. I thank Judge Krumholtz and all others who participated in the review of the mediation program. In closing, I reiterate my thanks to Jim Dare, the court’s staff, and my fellow judges for making the past three years an enjoyable and, I think, productive period.

STOP for Women

The court for a number of years has operated STOP (Secured Transitional Offender Program) for male offenders. STOP is dedicated to the supervision and treatment of offenders who need, at least in the short term (30-90 days), a secure environment. The goal is to provide this short term intervention in the hope that a prison term 18 Dayton Bar Briefs January 2016


Reflections with the Benefit of 20-20 Twenty Years Judge Twenty years Mediator T

en years ago, I penned an article for the Bar Briefs titled, “Ten Years Later”. The article offered suggestions to insure a successful mediation. Today mediation is an integral part of our dispute resolution system. And now I am asked three questions... 1. Is serving as a judge a prerequisite for a mediator? Answer. No 2. Is judicial experience always an asset? Answer. It depends 3. How does judging differ from mediating? Answer. Let me suggest a few differences When first appointed to the Dayton Municipal Court in 1975, I was 33 years old with seven years experience in a variety of practice areas. I considered that limited experience as a trial lawyer had prepared me for the office. Two years later I “moved up” to become a Common Pleas judge. In fact, making the transition from being an advocate to being a neutral was challenging. Almost from the beginning I encouraged compromise. At times I struggled with the adversarial process, preferring to find common ground in lieu of “King of the Mountain”. This dynamic between differing roles and perspectives often brought me into conflict with attorneys who were zealously representing their client’s interest. Judicial experience is not a prerequisite to successful mediating, though understanding the tension between perspectives of the litigants is essential. While retired judges do get an extra measure of credibility, experienced trial lawyers bring a wealth of knowledge to mediation. The key is the mediator’s ability to transition from “advocating or “ordering” to helping litigants find common ground. Patience is required. Some judges and some attorneys have it, some do not. Ultimately it is belief in the mediation process and the passion you bring to it that determines the mediator’s effectiveness.

By John ( Jack) Meagher, Retired Judge Mediation and trial advocacy differ in significant ways. When trial is foreordained, the pleadings, rules of evidence, and relevant law may dictate the conduct of the case. Mediation allows more flexibility. The parties can fashion their settlement regardless of any or all of these factors. The courtroom environment is structured and formal while mediation is more relaxed and less intimidating. Consider the example of a successful mediation that occurred in a case involving an intentional tort case claim. An employee with 23 years service was seriously injured while cleaning a machine. Attorneys for the owner/employer presented every reason why the plaintiff would lose at trial and nothing more than a nominal amount would be offered. By mid afternoon settlement appeared unlikely. I was in mid sentence, when the Owner/Employer spoke for the first time “How much do you think it will…Counsel tried to stop him from going any further….take to settle the case”. Counsel again urged his client to say no more, however turning to his attorney he said, “ thank you I heard everything, and I understand that I would prevail at trial”. He went on to say that Joe (not his name) was his most loyal employee, he never missed a day, etc. “I just want to make it right”. The parties quickly came to an agreement and the case settled without further contention or expense. The opportunity to mediate toward settlement permits all parties to air their concerns in the presence of a neutral, who in turn can assist them to find common ground, bring finality to their dispute without further expense and risk. Mediation today is an integral part of our dispute resolution system. I urge all lawyers to explain the process of mediation to their clients and when appropriate encourage them to seriously consider hiring a mediator to help them reach a mutually agreeable settlement.

“I have learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.” ~ Maya Angelou


January 2016 Dayton Bar Briefs



the dayton foundation Thinking Differently About Charitable Giving Using Closely Held Stock to Make a Charitable Gift I

ndividuals always are looking for the most advantageous ways to support the charitable causes they believe in. While giving cash is common, there can be significant tax advantages by making gifts of property instead.

Utilizing Appreciated Property vs. Cash

Generally, a charitable contribution of appreciated property allows a donor to deduct the value of property without having to report the appreciation as income. For example, let’s say that a donor has property he paid $10 for and now is valued at $1,000. If gifted to a qualified charity, he would have a $1,000 deduction and no long-term capital gains tax. Many donors recognize this tax advantage as a reason to give gifts of appreciated stock to charity. The challenge for owners of closely held businesses is that most of their investment is usually in their business, not publicly traded stocks, so most don’t have publicly traded stock to give to charity. Therefore, they think only in terms of giving cash to charity. Owners of closely held companies, however, should consider using stock in their closely held businesses as a means to further their charitable intentions. This is where an organization like The Dayton Foundation can be very helpful. If a donor owns his or her own company, it is typical that the stock is valued substantially higher than the cost. For example, an individual may have a company valued at $25,000 per share that may have virtually no cost basis (built with “sweat” equity rather than cash infusions). He or she could give one share of stock to a public charity like The Dayton Foundation and deduct the full $25,000 (assuming he held the stock for more than one year). Gifting to a public charity is important here. This is because if the individual made the gift to a private foundation, he or she only could deduct the cost basis, which would be very little.

Valuing Closely Held Stock

In the case of a gift of publicly traded stock, an appraisal to establish the stock’s value is not required by the IRS to secure a charitable 20 Dayton Bar Briefs January 2016

deduction. However, in the case of a gift of closely held stock, an appraisal is required by the IRS if the deduction claimed exceeds $10,000. This is true even if a stock is sold shortly after the gift, which common sense suggests would eliminate the need for an appraisal. The appraisal must be done within 60 days of the contribution, and not later than when the tax return is due and needs to be attached to the tax return that claims the deduction. If the stock is sold within two years of the charitable contribution, the charity has to report that to the IRS.

Considerations for the Advisor to Address

There are many considerations to take into account for both the closely held business owner making the charitable gift of stock in a closely held company and the charity receiving it. One of the main concerns for the business owner is having an “outsider” as a shareholder. On the other hand, the charity has the concern of holding an illiquid investment. The advisor needs to work with the donor and the charity to address these and other considerations to make the gift work the best for all involved. The typical way to do this is for the company to redeem—or buy back—the stock after the stock gift is made to the charity. In order for that to work for tax purposes, at the time of the gift there cannot be an obligation by the company to buy back or by the charity to sell back the stock to the company. A charitable gift also can be done in anticipation of a sale or merger of the company; however, the gift must be made before any formal decision to sell or merge the company. If the charity is going to hold on to the stock, a buy-sell agreement should be part of the transaction to control who may be a shareholder in the future and to deal with governance issues. The aforementioned is how gifts of closely held stock can be made to a charitable organization and still have the owner fulfill his or her charitable obligations and the charity fulfill its charitable mission. The same strategy can be

By Sam Warwar Esq. Tax Partner, Coolidge Wall Co., LPA used with a donor-advised or donor-designated endowed fund with an organization like The Dayton Foundation to receive the gift of closely held stock and thereby perpetuate the donor’s charitable interests over time.

S Corporations and LLCs

Many owners are operating as S corporations or LLCs taxed as partnerships now, because those entities do not have double tax like regular corporations; i.e., regular corporations pay one tax on the income of the business and the owners pay a second tax on distributions made to the owners. If the owner has operated his or her business as an S corporation or an LLC taxed as a partnership, the rules for charitable gifts of the stock or LLC become more complex and careful planning needs to be done. Fortunately, S corporations now are eligible to have charities as shareholders. But in the case of a gift of S corporation stock, there are two differences in the rules described above. First, the amount of the charitable deduction to the donor will have to be reduced by any portion of the value of the stock that is attributable to appreciated assets owned by the S corporation that generate ordinary income upon sale. For example, if part of the value of the business is made up of equipment that has been depreciated below its value (assume the value of the equipment is $1,000,000 but has been depreciated down to $800,000), the amount of the charitable deduction must be reduced by the stock’s percentage share of the ordinary income that would have been recognized if the corporation sold all the equipment. Second, under the unrelated trade or business income tax rules, the charity must pay tax on its share of any income that flows through the S corporation to the charity and also must pay tax on any income it has upon disposition of the shares. Gifts of LLC interests have the same reduction of value for the ordinary incometype assets like the S corporation and income

continued on page 21 937.222.7902

the dayton foundation

continued from page 20

tax costs to the charity. In addition, gifts of an LLC interest can result in the part sale/part gift rules applying to the donor if the LLC has any liabilities. When an LLC owner contributes to a charitable organization an interest in the LLC that has liabilities, the transaction is bifurcated into a charitable contribution and a deemed sale. The amount of the charitable contribution is equal to the amount by which the fair market value of the LLC owner’s share of partnership assets exceeds the partner’s share of the LLC’s liabilities. For the deemed sale portion of the transaction, the owner’s percentage share of the LLC’s liabilities on the gifted LLC interest is considered the amount realized on the deemed sale of the LLC interest. The donor’s basis in the LLC interest is prorated between the portion deemed sold and the portion deemed contributed based on the fair market value of each portion. The donor must recognize as gain the spread between the amount realized and the basis prorated to the deemed sale. The use of S corporation stock or an LLC interest still can have significant advantages under the right circumstances, and owners of those interests should be encouraged to consider gifting those to their charities of choice. However, as indicated above, careful planning


and analysis is necessary to make sure there are no surprises if these interests are used for the gift. I have found the personnel at The Dayton Foundation to be well versed in issues of gifts of interests in closely held businesses and, while they do not give tax advice, their experience and insights are very helpful in structuring the gifts.

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

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January 2016 Dayton Bar Briefs



The DBA wishes to look back on the past year and take a moment to remember members of our legal community whoâ&#x20AC;&#x2122;ve passed since May 2015 Gwendolyn D. Coles Esq. William E. Cromer Esq. Hon. Jack Duncan** Prof. Dennis Greene Ret. Colonel Carroll E. Hunt Lillian M. Kern Esq.** Winnfield E. Kinney III Esq.

Hon. Robert L. Nolan Hon. Walter A. Porter Sandra Rakestraw-Hobson Esq.** William I. Shaman Esq.** Ruth A. Slone Esq.** Howard N. Thiele Jr. Esq.** Dennis M. Whalen Esq.** **NonDBA Member

22 Dayton Bar Briefs January 2016



January 2016 Dayton Bar Briefs


law-related organizations Dayton Bar Association Foundation

Thank you for your continued generosity on behalf of the local legal profession, the Foundation could not do its good work without you! Happy Holidays The DBA Foundation will devote all proceeds from this year-end solicitation to providing grants to organizations that directly serve those in greatest need of legal services in our community. To obtain more information about the DBAF

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

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

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

As of January 1, 2014 every 6 hours of pro bono service through an approved pro bono provider will give you 1 hour of CLE credit to a maximum of 6 hours of CLE credit (36 hours of pro bono). The Greater Dayton Volunteer Lawyers Project will send your hours to the Ohio Supreme Court and notify you of the same. 24 Dayton Bar Briefs January 2016


Thurgood Marshall Law Society Current TMLS Events: Thurgood Marshall Law Society will be accepting applications for its minority summer clerkship with the United States District Court, Southern District of Ohio. The purpose of the program is to provide law students from traditionally underrepresented minority groups with the opportunity to clerk during the summer with Southern District of Ohio to gain valuable “real world” legal experience and begin making contacts with Dayton legal community. Additionally, the program will be aimed at supplementing students’ clerkship experience with such support functions as skills development and formal and informal networking sessions.

Timelines and deadlines for the program are as follows: -January 2, 2016 Informational Meeting -February 1, 2016 Application Deadline -February/March 2016 Interviews -March 31, 2016 Participant Selection Deadline

Improving diversity in the bar requires leadership at the highest level, and the Honorable Walter H. Rice and Honorable Michael J. Newman have provided leadership and collaboration with Thurgood Marshall Law Society to provide these opportunities to students. Participants in this program will reap tremendous benefits from it. It is important for the legal community to continue its focus on diversity and inclusion because while progress has been made there is still much work to be done. Only through continued commitment to and honest discussion of diversity and inclusion issues, and the success of programs like the Thurgood Marshall Clerkship program, will our profession ever reach the level of diversity and inclusion for which we all strive.

Please contact Robert L. Gresham Esq. at 937.222.7477 or rgresham@yourohiolegalhelp.com for applications.




Thurgood Marshall Law Society-Dayton

University of Dayton School of Law


January 2016 Dayton Bar Briefs


members on the move









Freund, Freeze & Arnold, A Legal Professional Association, is pleased to announce that founding partner, Neil F. Freund was honored by the Ohio Association of Civil Trial Attorneys (OACTA) as the 2015 recipient of the Lifetime Achievement Award. This award is given to recognize members for their contributions to the association and to the profession, over a lifetime. Freund has extensive trial experience in all areas of the law, including commercial and business, catastrophic personal injury, death cases, professional malpractice, civil rights, products liability defense, employment law and white collar criminal matters.

The partners of Dungan & LeFevre Co., L.P.A. are pleased to announce that partner Glen R. McMurry, has been named a 2016 Ohio Super Lawyer Rising Star. Ohio Rising Stars names outstanding young lawyers in the State of Ohio (those 40 years old or younger, or those who have been in practice for 10 years or less). No more than 2.5 percent of the lawyers in the state achieve this honor each year. Mr. McMurry has been named to the Ohio Rising Stars list for the past five years. He practices in the areas of business and commercial litigation. He has represented clients in a number of civil and defense matters, including derivative shareholder actions, products liability defense and construction litigation. Mr. McMurry is also experienced in federal litigation.

26 Dayton Bar Briefs January 2016

Pickrel, Schaeffer & Ebeling, Co., LPA is pleased to announce that attorneys Alan B. Schaeffer, Andrew C. Storar and Susan Belot Norton have been selected as 2016 Ohio Super Lawyer(s), as published in Ohio Super Lawyers magazine. Each year, no more than five percent of attorneys in the state of Ohio are chosen to be listed as an Ohio Super Lawyer. Alan is a shareholder with the firm and practices in the areas of construction law, environmental law, land use planning, zoning, real estate law and municipal law. Andy has represented entrepreneurs, individuals and businesses in a wide range of industries. Suzanne assists the Workers’ Compensation and Employment Law department. She has extensive experience defending public and state-funded and self-insured private businesses before the Ohio Industrial Commission and Ohio Courts. Suzanne is an OSBA Certified Specialist in Workers’ Compensation Law. Taft Stettinius & Hollister LLP is pleased to announce that two attorneys in Taft Dayton’s office were selected for inclusion in Ohio Super Lawyers 2016. Taft (Dayton) honorees are: Jennifer Hann Harrison (Workers’ Compensation) and Fred A. Ungerman, Jr. (Employment & Labor). Valerie M. Talkers was selected for inclusion in Ohio Rising Stars 2016 for business litigation. Talkers is an associate in Taft’s Dayton office and a member of the Litigation group. She practices in all aspects of civil litigation, including



representing clients in diverse matters from business and partnership disputes to employment discrimination claims.

Coolidge Wall Co., L.P.A. is pleased to announce that attorneys Michelle D. Bach, Christopher R. Conard, David C. Korte, Stephen M. McHugh, David P. Pierce and Sam Warwar have been selected as 2016 Ohio Super Lawyers®. Super Lawyers also has a process for recognizing younger attorneys who have distinguished themselves in their fields. Coolidge attorneys Amy N. Blankenship and Joshua R. Lounsbury have been named 2016 Ohio Rising Stars® in the fields of General Litigation and Workers’ Compensation, respectively.

Ninety lawyers from Thompson Hine LLP were recently selected for inclusion in Ohio Super Lawyers® and Ohio Rising Stars 2016 which includes fourteen lawyers from the Dayton Office. The attorneys recognized in the 2016 Ohio Super Lawyers® and Ohio Rising Stars rankings include: Super Lawyers: Stephen J. Axtell, Wray Blattner, Richard F. Carlile, Mark A. Conway, Robert M. Curry, Scott A. King and Mark P. Levy. Rising Stars: Susan C. Cornett, Jennifer L. Maffett-Nickelman, Nicholas W. Myles, Terry W. Posey, Jr., Jessica SalisburyCopper.


mark your calendar


Coolidge Wall Co., LPA, a full service Dayton firm since 1853, seeks applicants with 4-10 years of legal experience for an associate position in our corporate law department. The ideal candidate will demonstrate high academic achievement, excellent writing and speaking skills, and a strong work ethic. The candidate should demonstrate appropriate substantive knowledge of and interest in general corporate law, mergers and acquisitions, and real estate transactions. Please send resume (with GPA and class rank), law school transcript, references and writing sample to: Daniel J. Gentry Esq., Professional Development Committee Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to gentry@coollaw.com, with “Associate Application” in the subject line.


Coolidge Wall Co., L.P.A., a full service Dayton firm since 1853, seeks a highly motivated and qualified paralegal to work within our corporate and real estate departments. The ideal candidate will have excellent academic credentials, 4+ years of experience, and be knowledgeable regarding all aspects of corporate and real estate practice, including purchase and sale transactions. Please send resume, school transcript, references and any letters of recommendation to: Michelle D. Bach Esq., Professional Development Chair, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to bach@coollaw.com .

MEDIATION Helping Attorneys & their clients settle disputes since 1995 JOHN M. MEAGHER, Judge (Retired) 2305 Far Hills Ave., Suite 203 Dayton, OH 45419 (937) 604-4840 jmeagher2@gmail.com MEDIATIONS Thomas E. “Ted” Jenks, Esq. (937) 294-0213 (937) 760-8819

Medical Review

Nearly 20 years Insurance Experience Sandy Lacey 937.503.3973 medrevw@hotmail.com Office Available Downtown Dayton office with great view available. Reasonable overhead. If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 2241427.


Office space available with two other attorneys in the nice office building on Far Hills Ave. business area in OakwoodKettering. Space can be leased for full use or occasional use. Rent adjusted for occasional use. Call Mike Eckhart at (937) 298-6628.

Don’t miss these upcoming events! Upcoming Chancery Club Luncheon Dates: February 5, 2016 March 4, 2016 April 8, 2016 May 13, 2016 Doors will open at 11:30am SEATING IS LIMITED YOU MUST RSVP: calbrektson@daybar.org District Mock Trial Competition Fri. January 29, 2016 Montgomery County Courts 41 N. Perry St. Training/Lunch 11:00am Trials 12:00-4:00pm Regional Mock Trial Competition Fri. February 19, 2016 Location & Time: TBA Celebration of Life Memorial Luncheon Wed. May 25, 2016 Sinclair College Doors open at 11:30am Annual Meeting Fri. June 10, 2016 Sinclair College Doors open at 6:00pm Dayton Dragons Game Wed. July 27, 2016 Fifth Third Field Doors open at 6:00pm *Tickets distributed July 20 at 8:00am


LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at http:// www.daytonmunicipalcourt.org/ for notice of and an opportunity to view and comment on proposed local court rules. MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295; (937) 572-3185 judgewolff@woh.rr.com


101 Southmoor Circle, NW (Stroop and Far Hills). Four offices available at $700/ month/office. Furnished or unfurnished. Take one, two, three or four offices. Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area, conference room, dry basement file storage and Dayton Racquet Club athletic membership. Email dave@ SchmidtDayton.com for info and pics.

advertiser index ComDoc Inc.....................................................10 Dayton Commercial Reality.........................18 Ferneding Insurance.....................................19 J. Steve Justice - Mediations........................14 National Processing Solutions.....................21 OBLIC................................................back cover Pohlman & Talmage CPAs............................22 R.L. Emmons & Associates...........................21 Rogers–McNay Insurance Agency.............17 Trisha M. Duff - Mediations...........................6 January 2016 Dayton Bar Briefs


Dayton Bar Association 600 Performance Place 109 N. Main St. Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED


Profile for Dayton Bar Association

January 2016 Dayton Bar Briefs  

January 2016 Dayton Bar Briefs