January 2020 Dayton Bar Briefs Magazine

Page 1

The Magazine of the Dayton Bar Association | January 2020 | Vol. 69, No. 5


Bar Briefs

Barrister of the Month Jane P. Novick pg 6

Domestic Relations

Civility Never Goes Out of Style pg 8

Law & Tech

California Dreamin': Privacy & Technology Laws pg 10



Bar Briefs

January 2020 | Vol. 69, No. 5

Dayton Bar Association Board of Trustees

Features 4 TRUSTEES MESSAGE No Laughing Matter: The Solids on Liquidated Damages

By Brandon C. McClain, Montgomery County Recorder



By Alexandra Laine Esq., Taft Law


Merle F. Wilberding


Caroline H. Gentry

10 LAW & TECH California Dreamin’: Why Ohio Should Be Looking to California’s Privacy &

2019 – 2020

Hon. Mary L. Wiseman President

Fredric L. Young First Vice President

Second Vice President Secretary

Brandon C. McClain Treasurer


18 YOUNG LAWYERS DIVISION Scooters, e-Bikes, and More: Electric Transportation Devices


Denise L. Platfoot Lacey Member–at–Large Member–at–Large

David P. Pierce

John M. Ruffolo, ex officio

Bar Counsel

Executive Director

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

Departments 17 JANUARY 2020 SECTION MEETINGS 24 CONTINUING LEGAL EDUCATION 29 CLASSIFIEDS Upcoming Events 12 WHAT'S HAPPENING @ THE DBA? Take a Look Ahead at What's Taking Place in February - DBA Member Benefits Month!

Library of Congress ISSN #0415–0945

Dayton Bar Briefs January 2020

Are You SAD?

26 PRO BONO PARTNERSHIP OF OHIO PBPO Volunteers in Dayton: Making NonProfits and the Community Stronger By Marcie Hunnicutt, Dayton Director & Counsel, Pro Bono Partnership of Ohio

Jennifer Otchy, ex officio


By The Honorable Gerald Parker Jr., Montgomery County Common Pleas Court


Immediate Past President

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

By Martin W. Gehres Esq., City of Dayton Law Dept.

20 FROM THE JUDGES DESK Make No Mistake, 2020 is 'Gonna Be "Lit"!

Adam R. Webber

Jennifer Otchy, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308

Technology Laws More Than Its Beaches

By Zachary S. Heck Esq., Taft Law

Anne P. Keeton

Paid subscription: $30 / year

By Nicole Rutter-Hirth Esq., Law Office of Gump Deal & Hirth


Rebecca M. Gentry

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.

Civility Never Goes Out of Style

14 DBA BOOK CLUB Fri. January 29th | 4pm | DBA Offices, Drinks + Eats Provided! | "Devil in the Grove" by Gilbert King


Fri. January 17th | Montgomery County Courts | Training 11:00am; Trials 12:00pm


Sat. February 22nd | The Foodbank Dayton | 9:00am - 12:00pm 937.222.7902

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

Platinum Partner


www.ficlaw.com With offices in Cincinnati & Dayton

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.

Gold Partner

Thompson Hine LLP www.thompsonhine.com

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. Thompson Hine has distinguished itself in all areas of Service Delivery 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 information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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

January 2020 Dayton Bar Briefs


Trustee's Message

No Laughing Matter: The Solids on Liquidated Damages By Brandon C. McClain, Montgomery County Recorder Montgomery County Recorder’s Office DBA Treasurer


aturday Night Live (SNL) is an award-winning late-night live television variety show. The show has enjoyed unparalleled popularity by challenging the ever-changing definition of what is socially acceptable through comedy sketches, which often parody contemporary culture and politics. Nonetheless, when SNL star Pete Davidson required each patron to sign a nondisclosure agreement (NDA) with a $1M liquidated damages provision prior to being permitted to attend one of his standup comedy show performances, no one was laughing. To the contrary, widespread outrage ensued. The NDA has been widely criticized as a blatant effort to restrict the audience’s right to expression- even amongst admitted fears by many entertainers (including Davidson himself ) of audience heckling and hypersensitivity. According to Provision A of the NDA, attendees are not permitted to give “interviews, offer any opinions or critiques, or otherwise participate by any means or in any form whatsoever (including but not limited to blogs, Twitter, Facebook, YouTube, Instagram, or any social networking or other websites whether now existing or hereafter created).” Patrons who refused to sign the NDA would be permitted to receive a full refund. For various reasons- including the patrons’ inability to negotiate the terms of the liquidated damages provision and the reasonableness of the $1M assessed for divulging show content, many legal scholars (but not all) believe the provision in question would not be legally enforceable. This situation happened in San Francisco, California, but did you immediately wonder how a similar occurrence would be interpreted in Ohio? If so, you are in good company. Similar to California, liquidated damage provisions in Ohio are only enforceable if they satisfy a three-part test. Actual damages must be uncertain as to amount and difficult to prove. In other words, an entertainer would have to give clear indication of how they would lose the ability to book future shows because a patron divulged show content. Depending on the demand and previous earning potential of the entertainer, this could present a formidable challenge.


Dayton Bar Briefs January 2020

The contract must not be manifestly unconscionable, unreasonable, or disproportionate in amount to the reasonably anticipated damages such that the court views the provision as a penalty. Much debate occurred as to whether an average patron would reasonably foresee paying Davidson $1M as practical for divulging details about show content- with many believing that amount would be considered a penalty. However, there is likely a liquidated damages amount which a court in Ohio would deem reasonable to protect entertainment material- but not necessarily $1M. The lesson appears to be always proceed with caution when repeating another’s words. The contract must demonstrate that the parties agreed to the liquidated damages following a breach. Negotiating an amount for a liquidated damages provision is not likely a practice we should expect to begin in routine ticket purchasing transactions on Stubhub, Ticketmaster, EBay, etc. However, negotiations could and do occur in focus group settings where comedic material is practiced on a paid audience who can be contractually bound to maintain secrecy in the event the material is found to be tasteless. Generally, a liquidated damages provision is included in contracts when the actual damages caused by a breach are unknown or would be difficult to gauge. Various legal experts have noted regularly seeing liquidated damage provisions in NDAs by production companies concerning reality shows which have not yet aired, but not pay-to-view comedy shows. This will likely change. The “cancel” culture of today, which has resulted in millions of dollars in lost revenue and career opportunities for some entertainers, has raised concerns pertaining to the consequences of overstepping the boundaries society deems acceptable- which arguably change daily. Davidson’s efforts may have opened Pandora’s Box concerning the conditions entertainers consider to be a safe space- but to what extent remains unknown.


Dayton Bar Foundation

Help us Build our Foundation Your generous gift will make a difference! The Dayton Bar Foundation is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the Dayton Bar Foundation to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. Your Contributions Have Funded Dayton Bar Foundation Grants to Support:

Greater Dayton Volunteer Lawyers Project (GDVLP) Advocates for Basic Legal Equality (ABLE) Legal Aid of Western Ohio (LAWO) Life Essentials Guardianship Program Law & Leadership Institute Wills for Heroes

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


Thank You!


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

 $50  $100  $250  $500  Other $_________

Name: _____________________________________________ (As you wish it to appear on our records) Firm: ______________________________________________

Method of payment:

 Check Enclosed Check # __________  Charge my:





Address: ___________________________________________

Expiration ______ / ______ Security Code (3 or 4 digit) ___________


____________________________________________ Phone: ____________________________________________

Signature: ____________________________________________________________________

My gift is


 in memory of

 in honor of



Please notify: __________________________________________________________________________________________________________________________ Address: ______________________________________________________________________________________________________________________________


January 2020 Dayton Bar Briefs


Barrister of the Month

Jane P. Novick

CASA Manager, Montgomery County Juvenile Court

“It was ingrained in us . . . that women could do anything.”


ane Novick, Esq. is a force for good, in every sense of the phrase, and the Dayton legal community is blessed to have her. I was lucky enough to have the opportunity to sit down with her last month to discuss her personal and professional life to see what inspired her to advocate for those who could not advocate for themselves. Jane was raised in New York and attended Barnard College, the only member of the Seven Sisters that remains all-women today, in the 1970’s during the height of the feminist movement. While there, she met women who were pursuing careers in field that were traditionally all male and she found role models in women who had been successful in such fields. These experiences had a deep impact on her life, as it was there that she came to truly believe that women could do anything. Not only did Barnard College help Jane to see the potential in herself, but it helped her to see the potential in others, as well. Barnard may not have been diverse in regards to gender, but Barnard was home to students across all races, nationalities, religions, and mindsets. Jane had always appreciated the value in diversity, as a true New Yorker does, but her time at Barnard opened the door to new conversations about culture and politics. This experience led her to pursue a Master’s Degree, and ultimately a career, in international affairs. Jane earned her Master’s Degree in 1978 from Columbia University with a focus on the former Soviet Union. She worked with an organization that helped Russian Jews leave the country and advocated for the many who were forbidden to emigrate, and she visited Russia during and after the Soviet period. Her experiences in the former Soviet Union taught her an important lesson: “You cannot look at a situation through the eyes of an American, or a New Yorker. You need to look at it perspective of that nation . . . if you want to be effective, you have to see their perspective.” Jane internalized this lesson and utilized it in beginning her career as an international economist at the New York Federal Reserve Bank. While she loved her time with the Federal Reserve (or “the Fed,” as she fondly calls it), she made the painful decision to take a temporary break from her career shortly following the birth of her second daughter. Her second daughter was born with special needs, and she felt it was too difficult to fully commit herself to both her daughter and her job. She emphasizes the disappointment she initially felt with herself, as she had been shaped by strong, independent feminists who had put families on hold to pursue their careers. We chatted for a long while about the societal pressures that women were undergoing during this time, and the societal pressures that women are currently undergoing today, before she states, firmly, that she has never been a sheep and she never will be. That, while it was hard to watch the women around her pursue their careers, she knew that her daughter was who needed her 6

Dayton Bar Briefs January 2020

"Most" of Jane's Family Photographed from Left to Right: Aviva, Elana, Leora, Batyai with Roman Azani, and Jane holding Edie Tululah (Batya's dog) and Leora holding her dog Otis. intense passion and advocacy the most. After significant research, Jane and her husband decided it was in the best interests of their two young daughters if they moved to England. This experience was beneficial for both of her children, Jane recalls. Her older daughter learned the importance of diversity of culture, and her younger daughter was able to participate in programs created specifically for children with special needs. “By sheer luck we ended up in the best place imaginable,” Jane smiles, “[my youngest daughter] made incredible gains, and I also learned a lot [about helping those with special needs].” The knowledge that Jane gained from her time in England inspired her to begin advocating for persons with special needs. In 1991 Jane’s husband, a physician, had accepted a job with a gastroenterology practice and he, Jane and their 4 daughters moved to Dayton. With her older daughters grown and her younger daughters involved in after school activities, Jane saw her opening to return to the working world. continued on page 7

Jane and David in Argentina!


BARRISTER OF THE MONTH: Jane P. Novick continued from page 6 While Jane’s professional history focused on international affairs, there wasn’t a big need for that line of work in Dayton in the early nineties. Instead, Jane leaned into her passion for advocacy and the knowledge that she had gained from caring for her special needs daughter. She attended the University of Dayton School of Law with the goal of becoming an advocate for those persons with special needs who could not advocate for themselves. Jane recognized that she was in an incredible position to give her time and expertise to those persons who could not otherwise afford an attorney of her experience. “[My husband and adult children] were gainfully employed, and I thought, you’ve got to know when you have enough. So many of these kids need help in school with their IEPs, or even with their families, and I could help them for little to no cost.” Jane originally saw herself doing probate work but, through speaking with others in the Dayton community, she learned of the immense need for assistance in the juvenile courts. There, Jane began doing court-appointed guardian and guardian ad litem work, and she realized just how great the need truly was. Not only did Jane appreciate the need, but she loved the work. She began volunteering with the Volunteer Law Project soon after, and encouraged many of the families seeking legal assistance to utilize the services the Volunteer Lawyers Project offered. Jane has consistently prioritized the accessibility of resources for those in need throughout her career. In 2016, the position of Head of the CASA Program with the Juvenile Court opened and Jane jumped at the opportunity to participate in that role. Through this position, she has been able to further her reach on probate issues and advocacy for persons with special needs. Jane reminisces on a specific matter where a probate issue overlapped with guardianship of a child with special needs, and she was able to flex her law school muscles and work through a unique situation. She smiles as she tells me about the first time she was able to supervise an adoption and the joy on the child and the guardians’ faces. It’s clear from the pride and warmth Jane feels that this is truly where she’s meant to be. Even the situations that don’t end as she might have hoped, Jane emphasizes that it’s comforting knowing that she knows that these children have been given a fair chance. Jane further pursued her passion for advocacy by becoming a guardian for her daughter and a number of unrelated persons with various disabilities, including multiple elderly persons and a young mother. She uses her knowledge of the legal field, as well as her knowledge of the medical field, to best advocate for the emotional, financial, and medical needs of these persons. As we talk about the impact that this has had on her life and the joy that this advocacy brings, she makes a comment that frames the world a little different for me: “Disability is a culture.” She goes on to explain that every disability is unique to the person, but that there are overarching experiences that are universal across all persons with special needs. Many persons with disabilities have experienced discrimination and hardships that stem from their unique needs. Jane emphasizes that being able to listen to a person’s experiences from their perspective, and not our own, is crucial to being an advocate to those who may be a little different than ourselves. That perhaps the only thing more important than listening, is giving that person your respect and understanding. Jane proves time and time again that she has earned a loving spot in the heart of the Dayton community, and this is further evidenced by her election to President of the Volunteer Law Project. She will begin her service in 2020, and she encourages all attorneys, regardless of their practice or experience level, to volunteer with the Volunteer Law Project and to give back to their communities. Not to mention, it counts towards your Pro Bono hours, so it’s beneficial to both you and your community. Throughout our meeting, Jane repeatedly stops me in my tracks with her softspoken yet profound perspective on the world around her. Candidly, I admire Jane’s strength and the confidence she carries herself with. To me, she is proof that no two women are the same, and that there’s no “right” way to be a woman in the legal www.daybar.org

field. She is proof that an attorney can be intense, careerdriven, and intimidating, while also being empathetic and understanding. Jane is, undoubtedly, one hundred percent Jane. By Alexandra Laine DBA Editorial Board Taft Law

January 2020 Dayton Bar Briefs


Domestic Relations

By Nicole Rutter-Hirth Co-Chair Domestic Relation Section Law Office of Gump Deal & Hirth

Civility Never Goes Out of Style I

t is Monday. The stakes are high. With a lengthy to-do list staring me down, I smiled as my first task was simple, yet significant: I had to determine who would write the Domestic Relations Section article for the Dayton Bar Briefs. Would I do it myself, would I beg my co-chair, Justin Nidiffer, or would I call in a favor to a colleague? I decided to use a tried and true method of determination, the manner in which many of life’s major decisions are made. I made a quick call to Justin and, after a vigorous round of Rock, Paper, Scissors, my fate was sealed. I had lost the game and won the honor of writing this article. Justin and I briefly chatted, he congratulated me on the loss, and we discussed the recent DBA 50th Anniversary Celebration (note: Justin’s boss, Jim Kirkland, and my partner, Denny Gump, had both been honored at the event). That conversation with Justin lingered in my mind that day. Jim and Denny had practiced law for fifty years. The thought of practicing law that long is daunting. That is 13,000 days of wearing suits, not counting the dreaded Saturday office days. If just one hour is spent on the phone with clients each day, in fifty years that is 780,000 minutes on the phone with clients. And imagine how many of those minutes ended with the thought “well, that’s ten minutes of my life I will never get back.” And worse than all of that, practicing law for fifty years amounts to 2,650 Mondays as a lawyer. These statistics make this objective borderline nauseating. Not to mention the monotony of it all. I had to ask Denny whether he would do it all over again. And if practicing law had changed much over fifty years. Removing his glasses, he raised the earpiece up toward his mouth in the modelesque way he has always done, smiled and said “I don’t know, but I do love it.” It was at this moment that Denny showed me something he had found buried on his desk. It was a tiny piece of paper, the size of an iphone. He said it was his daily schedule, likely more than 30 years old. He explained his assistant would type out his schedule every night for the next day. It listed each court appearance, was scant with details, and just the perfect size to fold and stick in his shirt 8

Dayton Bar Briefs January 2020

pocket (not his jacket pocket, we all know that’s where his pocket squares belong). I looked at the paper and that day was a particularly busy one, with several court appearances every hour. None of the judges listed on that paper were still on the bench. And many of the clients had passed away. In fact, Denny is currently handling one of their estates. I commented how the paper is the exact same size as my phone, and actually resembled my iPhone’s calendar, even showing Denny my phone’s calendar for the day. He didn’t know iPhone calendars could be used for anything other than tee times. I asked where he found the schedule and he held up an old code book (Chapter 29, criminal law, of course). I laugher and opened the book, wondering if I could even find a statute in it. He remarked he could find anything faster in the book than I could find on LexisNexis. I doubted that, especially since we recently upgraded our office internet and it was as fast as ever. But explaining internet speeds to Denny would be as fruitful as him describing his new putter to me. It was then that I realized the practice of law has changed in its procedure but not its substance. It starts with the client. Fifty years ago, Denny met clients in the office, in the jail, or even at their home. He had to shake their hand, wanted to look at the documents they had been served, and wanted them to know he was personally there for them. I too offer a consult in the office, but by the time that appointment rolls around, I have already talked to the potential client by phone, text and email, I have looked up their documents online, and searched their social media pages for any red flags. Often by the time we meet, I have already been hired. They too know I am personally there for them because I took the time to do all of that before we even met. The next step in our area of practice is filing initial documents with the court. Fifty years ago, pleadings were typed up and filed in person at the clerk’s office. Now, most lawyers have forms on their continued on page 9


DOMESTIC RELATIONS Civility Never Goes Out of Style continued from page 8 computers that can be quickly completed, which are then then are faxed, emailed or e-filed with the court. The client’s next court date is then swiftly added to the calendar (iPhone, not paper). Admittedly, the occasional in-person filing still happens. I rarely visit the clerk’s office but I find when I do, the clerks are often appreciative to put a face to a name. And they always ask me about Denny and if he is bringing them donuts anytime soon. Note to self: sucking up to the clerk’s office is a timeless art that will never go away; bring donuts next time. The comparison continues. If research was necessary, Denny used a book. I use my computer. This is not to say the old law books in our office are unnecessary. I recently used a stack of them to flatten out a new rug we bought. Perhaps the most consistent part of practicing law over time is the courtroom. Statistically the bench and bar have become much more diverse, however the courtroom players are remarkably the same. The lawyers are dressed sharply, the clients look nervous. There are still court reporters, though few are actual stenographers furiously typing and most are electronic record keepers, pushing buttons and monitoring sound quality. And there are still bailiffs present to ensure time and behavior are in check. When I asked Denny what one thing has not changed in his years of practice, besides his hair color, he laughed and said “the need for civility.” He explained lawyers can be good, and they can be effective, but without civility, they will never be the best in their craft. “This is a legal community; we are all a part of it now and will be in another fifty years. The need for civility has not changed, it never will.” And just like that, another Monday down.

www.daybar.org www.daybar.org

Save the Date


DBA Mentor/ Mentee Event Wednesday, February 26, 2020 5:00-6:30pm @ the DBA Offices MORE INFO TO FOLLOW!


January 2020 Dayton Bar Briefs


Law & Tech

California Dreamin’:

Why Ohio Should Be Looking to California’s Privacy & Technology Laws More Than Its Beaches By Zachary S. Heck Co-Chair DBA Editorial Board Taft Law


ith the temperature in Ohio characteristically chilly in January, businesses should be thinking about California. Not because of the sandy beaches, but because of its newest law effective January 1, 2020: the California Consumer Privacy Act (“CCPA”). CCPA requires many Ohio businesses to comply with its requirements for protecting consumers’ privacy or face the possibility of fines and private rights of action. Because businesses are more dependent upon technology to stores, process, and safeguard information, CCPA endeavors to provide California consumers the right to have a say in how that information is stored or processed. If they have not already, Ohio businesses should act now to understand CCPA, adopt appropriate technology practices, and manage the risks that the CCPA will bring.

Who must comply?

For-profit businesses that do business in California and collect or determine the use of personal information from consumers and either (1) have an annual gross revenue of over $25 million, (2) buy, sell or share personal information of 50,000 or more consumers, households, or devices for commercial purposes, or (3) derive 50% or more of its annual revenues from selling consumers’ information. Businesses that act as service providers for California businesses may also be contracted into adhering to the requirements set forth in CCPA.

What is considered “personal information?”

Any information that “identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.” CCPA includes a non-exhaustive list of what personal information includes, spanning from identifiers such as names, aliases, addresses, email addresses, account names or driver’s license numbers, internet activity and geolocation information, biometric information, and even “inferences drawn from any information” used to create a consumer profile. Not exactly narrowly tailored. Employee personal information is temporarily exempt until January 1, 2021. Employee personal information is personal information collected from a person in the course of that person “acting as a job applicant to, an employee of, owner of, director of, officer of, medical


Dayton Bar Briefs January 2020

staff member of, or contractor of that business.” This exemption also applies to personal information of such persons in a business-to-business relationship. Additionally, if a consumer has an existing account with a business, this provision requires that consumer to use that existing account when exercising her right to request information about the personal information held by the business. However, this provision prohibits businesses from asking a consumer to create an account for the purpose of making a request about their data.

What rights will California consumers have?

Consumers can request that a business disclose the categories and specific pieces of personal information that have been collected, and also request disclosure on how the personal data is used, shared, or sold to third parties. For example, consumers can request that a business delete their personal information from records maintained by the business or a service provider, and the business must comply except in certain limited circumstances. These circumstances include when the data is necessary to complete a transaction, is used for certain internal analytics, or must be stored to comply with a legal obligation. continued on page 11


LAW & TECH: California Dreamin’: Why Ohio Should Be Looking to California’s Privacy & Technology Laws More Than Its Beaches continued from page 10 Consumers can also prohibit a business from selling their personal information to a third party, and a business that sells consumer information to third parties must notify the consumer of their right to opt out by a clear and conspicuous link on the business’s website. Finally, consumers have the right to not be discriminated against when exercising their rights under the CCPA and cannot be denied goods or services, charged different prices not reasonably related to the value provided to the consumer by the consumer’s data, or be provided a different level or quality of goods or services.

How does California enforce CCCPA?

CCPA will not be enforced until July 1, 2020. After that date, business may be liable for up to $7,500 per violation. CCPA also provides for a private right of action for a breach of unencrypted or un-redacted personal information, which can result in actual damages or statutory damages of up to $750 per consumer, whichever is greater. Consumers must first provide a business written notice of the allegations, and the business has a right to cure any alleged violations. If the business fails to cure the alleged violations, then the consumer may proceed with filing the action and must notify the Attorney General of the lawsuit within 30 days of filing. The Attorney General then has the discretion to either prosecute the action, allow the consumer to proceed, or bar the consumer from proceeding.

What if there is a breach?

If their personal information was subject to unauthorized access and exfiltration or theft, consumers have the ability to commence a civil action against a business that fails to implement or maintain reasonable security procedures and practices. However, this provision exempts personal information that was collected or used for a “consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by specified parties, including a consumer reporting agency.” Additionally, personal information pertaining to a written or verbal communication or transaction between


a business and a consumer, for the purpose of conducting due diligence or providing a product or service, is exempt from the CCPA until January 1, 2021.

What if I am a data broker?

Data brokers must register with the Attorney General, in which the Attorney General would make the information provided by the data brokers available on its website. A data broker is a business that has no direct relationship to consumers, but knowingly sells consumers’ personal information to third parties. Data brokers that fail to register are subject to injunction and civil penalties in an action brought by the Attorney General.

How does this affect Ohio businesses?

CCPA only protects California residents, but if a business located outside of the state “does business” in California and meets the above criteria, then this new legislation will have an impact on how the company handles and uses consumer data. Preparing technology infrastructure and procedures sooner rather than later will ensure that businesses are in compliance with the law and can promptly respond to consumer requests when the law goes into effect. Although the July 1, 2020 enforcement date may seem far away, the reality is that CCPA is now in effect. It is never too early for companies to address nascent legal issues facing privacy and technology. In truth, whether a business is subject to the CCPA or not, it is important to identify how the requirements of laws like CCPA, the European Union’s General Data Protection Regulation, and others affect businesses and the way that data is handled. Strategizing now about how a business will achieve and maintain compliance is more critical than ever as more states adopt their own laws targeted at protecting privacy and getting accountability from businesses. Indeed, a good privacy and security program is merely the cost of doing business today.

January 2020 Dayton Bar Briefs


What's Happening@ the DBA? For Up-to-Date DBA Event Info visit daybar.org


17 TRAINING 11:00am PROGRAM 1:00pm

29 4:00pm

Robert Farquhar District Mock Trial Competition @ Montgomery County Courts

Rory Maldonado v. Varga, et al., asks students to examine the First Amendment right to free speech and if/when it is permissible for a school to restrict student speech.

Book Club "Devil in the Grove" by Gilbert King @ DBA Offices

Readers this is your spot! Back for it's second installment join us for light eats and discussion on this law-related and societal issues novel.

February is DBA Member Benefits Month!





7 12:00pm

Chancery Club Luncheon @ The Old Courthouse

17 & 19 9:00am

Workplace Safety @ DBA Offices

22 9:00am

3rd Annual Volunteer Day @ The Foodbank Dayton

26 5:00pm

DBA Mentor/Mentee Event @ DBA Offices

28 7:00am

Coffee & Conversation @ Boster Stoker Downtown

Dayton Bar Briefs January 2020

Raffle lunch for 2 at Boosalis. Caterer & Topic TBA.

FREE training for members and staff. Learn about "Workplace Safety Training" from local law enforcement from the Dayton Police Department.

We will be partnering with the Ohio Women's Bar Association packing backpacks and filling boxes for those in need.

More info to follow.!

Meet up with your fellow colleagues and friends for coffee and delicious pastries. 937.222.7902

WE THANK YOU FOR YOUR SUPPORT OF OUR ASSOCIATION! The 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community. 100% Club Firms are those in which all attorney’s are DBA members. All firms and legal organizations with two or more attorneys are invited to join the Club.

Dayton Bar Association


20 1 9-20 1 0 0 % C l u b M e mb e r s Firms with 70+ Members

Firms with 5 - 14 Members


Firms with 35 - 50 Members

Coolidge Wall Co., LPA Montgomery County Public Defender’s Office

Firms with 25 - 30 Members

Montgomery County Common Pleas Court Pickrel Schaeffer & Ebeling Co., LPA Sebaly Shillito + Dyer

Firms with 15 - 20 Members Bieser Greer & Landis, LLP Freund, Freeze & Arnold

A Legal Professional Association

Second District Court of Appeals

Firms with 2 - 4 Members

Albert & Krochmal Baldwin Valley Law, LLC Boucher & Boucher Co., LPA Bradley & Associates David A. Chicarelli Co., LPA Cowan & Hilgeman Robert L. Deddens Law Offices Douple Beyoglides Claypool & Lipowicz Dysinger & Patry, LLC Elliott, Faulkner & Webber Esler & VanderSchaaff Co., LPA Falke & Dunphy, LLC Ferguson & Ferguson LLC Fox and Associates Co., L.P.A. Gammell Ross & Hoshor, LLC Gregory M. Gantt Co., LPA Hedrick & Jordan Co., LPA

Auman Mahan & Furry, LPA Altick & Corwin Co., LPA Brannon & Associates Bruns Connell Vollmar & Armstrong, LLC City of Dayton Law Department City of Dayton Prosecutor’s Office Dayton Municipal Court Faruki PLL Gottschlich & Portune, LLP Green & Green, Lawyers Gudorf Law Group, LLC Hochman & Plunkett Co., LPA Kirkland & Sommers Co, LPA Legal Aid of Western Ohio, Inc. McNamee & McNamee, PLL Montgomery County Domestic Relations Court Montgomery County Probate Court Rogers & Greenberg, LLP Subashi Wildermuth & Justice Surdyk Dowd & Turner Co., LPA Young & Alexander Co., LPA

Hochwalt & Schiff, LLC Hollingsworth & Washington Holzfaster Cecil McKnight & Mues, LPA Intili Group A Legal Professional Association

Jablinski Roberts & Gall, LPA Jackson Lewis, P.C. Jacox Meckstroth & Jenkins Kettering Municipal Court LCNB National Bank Lennen Law LLC Leppla Associates, Ltd. Martin Folino, LPA Mesaros Law Office Miamisburg Municipal Court Stephen D. Miles Miller, Walker & Brush, LLP

Myers & Frayne Co., LPA Nolan Sprowl & Smith O’Diam & Estess Law Group, Inc. Roberson Law Roderer Law Office, LLC Sherrets Law Offices, LLC Siemann and Associates Smith Meier & Webb, LPA Stachler & Harmon Attorneys at Law

Stamps and Stamps Law Offices of Ira H. Thomsen Thorson Switala Mondock & Snead, LLP Tracy & Tracy Co., LPA Treherne Law Office The VanNoy Firm


Readers, this is your spot! Back for it's second installment - the DBA Book Club January edition's literary feature will again be focused on yet another law-related and societal issues themed novel: Devil in the Grove by Gilbert King. Join us as we meet quarterly for enlightening discussion, comradery and snacks. Participants can come and go as they please – no requirement to read every book or attend every discussion. Bring your copy of the book, your opinions, thoughts, and perspectives to the DBA Offices on January 29th. The DBA wants to make this the experience you’ve been hoping for. Drinks and eats provided. You get to decide how you want to enjoy the book club experience!

Devil in the Grove by Gilbert King January 29, 2019 | 4:00pm | DBA Offices 2020 DBA Book Club Meetings:

March: Hillbilly Elegy: A Memoir of a Family and Culture in Crisis by J.D. Vance

May: Book Club Selection

Join the New Online DBA LRS Panel Today and Watch Your Career Soar Higher! Get connected with clients. Provide a valuable service. When clients come looking BE FOUND. The DBA LRS receives over 10,000 calls annually. Join the DBA LRS Panel Today! Contact Chris: calbrektson@daybar.org daybar.org/lrs | 937.222.7902


Dayton Bar Briefs January 2020



January 2020 Dayton Bar Briefs



Dayton Bar Briefs January 2020


Join Us!

January 2020

DBA Section Meetings Start the Year Off Right! The DBA Invites you to join one of our 25 Substantive, Advisory or Service Sections at any time throughout the year. Contact Tyler to Join! twright@daybar.org

Friday, January 17, 2020 Training & Lunch: 11:00am | Trials: Noon

jan 6


u @Noon Juvenile Law Montgomery County Juvenile Court

u @Noon Appellate Court Practice u @Noon Young Lawyers Division u

9 14 15 16


Estate Planning, Trust & Probate Optional CLE: Update & Review of Personal & Estate Income Taxes

u @Noon Domestic Relations u

@Noon Real Property

u @Noon Labor & Employment u @Noon Criminal Law u @Noon Workers Comp & Social Security Montgomery County CourtRm 4th FL Rm 8 Optional CLE: Effective Use of Courtroom Technology The Honorable Mary Wiseman u @5pm Civil Practice & ADR


Miami Valley's Choice For Effective, Afforable, Legal Publishing! See for yourself in your complimentary DBA edition of the Daily Court Reporter For More Information: dcr120@dailycourt.com


17 23

u @Noon Diversity Issues u @4:30pm Corporate Counsel Bravo Dayton Mall Topic & Speaker: Artificial Intelligence and Analytics: How are They Changing the Legal Landscape and Especially Research? Kermit Lowery Esq., LexisNexis, a division of RELIX Inc.

January 2020 Dayton Bar Briefs


Young Lawyers Division

Scooters, e-Bikes, and More: Electric Transportation Devices W

ith the launch of Spin Scooters this past fall, Dayton joined a long list of cities with electric scooter services (“Operators”) operating on its streets. Besides Operators, individuals are increasingly using this new form of transit. Operators and individuals can purchase a wide variety of electric transportation devices, including: electric bikes, electric skateboards, unicycles, hoverboards, electric skates, and much more (“Devices”). Devices are even now available from large retailers like Amazon and Costco. Costco, this past holiday season, had two different electric scooters, a Segway and Jetson Bolt, available for under six hundred dollars. Meanwhile, Amazon has a variety of Devices ranging from two hundred to six thousand dollars. Much like gasoline-powered cars, the differences between the Cadillac models and their low cost alternatives is their top speeds, acceleration ability, and battery life. For example, Delfast, an E-bike company, claims that its Delfast Top 2.0 can reach speeds of 50 mph. Unlocking this electric horsepower will only set you back six thousand dollars. The Delfast Top 2.0 speed and acceleration is comparable to most gasolinepowered mopeds and scooters. Even the budget friendly models are capable of impressing the average consumer. Inexpensive electric scooters, like the Gotrax GXL, reach speeds of 15 mph and are available through Amazon for merely two hundred and fifty dollars. The availability, cost, capabilities, and use of these devices have created a litany of issues for Operators, users, and governing bodies. The City of Dayton addressed some of these concerns by amending its Revised Code of General Ordinance (“R.C.G.O.”) and adopting Rules and Regulations of Electric Transportation Devices (“Rules and Regulations”). The Rules and Regulations of Electric Transportation Devices govern the operation of Electric Transportation Device Operators within the city. Operators are required to apply for a probationary operating permit. This allows Devices to be deployed upon the city’s right-of-way. This probationary permit is valid for 6 months. Once the probationary period is completed, an Operator may apply for an annual permit. The probationary permit


Dayton Bar Briefs January 2020

Hey Marty! allows for the deployment of up to two hundred Devices, which may be increased upon approval by the city, in locations approved by the city. Operators must also comply with the city’s parking requirements contained in its Revised Code of Ordinances. Devices deployed by Operators must meet all the requirements of local, state, and federal law and at a minimum not exceed top speeds of 15 mph and be equipped with GPS technology and always on rear and front lamps. The entire Rules and Regulations can be obtained by contacting the City of Dayton. Dayton also amended its criminal code to address Devices and their use. These changes largely require individuals to operate and use Devices in the same manner as bicycles. These changes included operating and parking of the Devices. In fact, it is illegal to operate the Devices on the sidewalk unless immediately leaving or accessing a parking location. These criminal changes are contained in Ordinance 31713-19, passed on April 10, 2019 by Dayton City Commission or can be found in the R.C.G.O.. These regulations are sure to evolve as municipalities and the state become aware of new issues. The Ohio Senate is currently reviewing a House Bill 295 establishing of requirements for low-speed electric scooters. In the meantime, downtown employees, including myself, will continue to utilize these scooters to grab a quick lunch in the Oregon District. By Martin W. Gehres Co-Chair Young Lawyers Division City of Dayton Law Dept.


DBA Volunteers


rd Annual

DBAVolunteer Day Saturday, February 22, 2020 9:00-12:00pm The Foodbank Dayton 56 Armor Pl., Dayton, OH 45417 We’re fighting hunger with The Foodbank!

The DBA is Partnering this Year with the

Ohio Women's Bar Association - OWBA for this Special Event!

The Foodbank brings food, comfort and hope to hungry families in the Dayton area. Each week, The Foodbank distributes 1,400 Good-to-Go Backpacks to children who are at risk for going hungry over the weekend.

We need you.

Volunteer with the DBA on Saturday, February 22, 2020 from 9:00-12:00pm to help stuff backpacks and write cheery notes to send to children. Help lead the fight against hunger!

About The Foodbank Dayton:

For More Information Contact:

Chris Albrektson, DBA Assistant Executive Director calbrektson@daybar.org | 937.222.7902

The Foodbank serves more than 100 programs annually, distributing over 9 million pounds of food. With your contribution, additional families can be fed and more people can learn about The Foodbank’s mission to end hunger. January 2020 Dayton Bar Briefs

19 19

From the Judges Desk

Make No Mistake, 2020 is 'Gonna Be "Lit"! By The Honorable Gerald Parker Jr. Montgomery County Common Pleas Court


embers of the bar, there you have it; the conclusion of a decade. I am very hopeful and optimistic that we will all begin the new decade better than we ended it. As we all know, 2019 was a year that we shall never forget. Dayton and the Greater Miami Valley endured a devastating tornado, federal investigations, a mass shooting, a garage shooting, and the shooting death of a longtime Dayton Police Officer. Needless to say, these events shaped a difficult and unforgettable year. As we look to click “refresh” on 2019, from an attorney’s perspective I am here to tell you that 2020, while hopefully not as traumatic, will be lit.1 The Supreme Court of the United States is set to issue rulings on some very significant, high-profile and highly politicized issues during the course of its term. Here are just a few issues before the SCOTUS: Whether the Civil Rights Act of 1964 encompasses discrimination based on an individual’s sexual orientation. (Altitude Express Inc. v. Zarda) Whether the Department of Homeland Security decision to wind down the Deferred


Dayton Bar Briefs January 2020

Action for Childhood (“DACA”) policy is judicially reviewable and lawful. (Dept. of Homeland Security v. Regents of the University of California) Whether a state can abolish the insanity defense under certain circumstances without violating the Eight and Fourteenth Amendments. (Kahler v. Kansas) Whether a state’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel. (New York State Rifle and Pistol Association Inc. v. City of New York) With public policy issues such as LGBTQ rights, immigration, mental health and the Second Amendment currently before the Supreme Court, it is safe to say that social media outlets and other informational platforms will likely intensify in its content. Oh, yeah, and apparently there is a presidential election taking place this year too. It never ceases to amaze me the amount of hate and vitriol that we see and will likely continue to see on social media, especially during a

presidential election year. Social media most certainly has its place. It is where most of us get our information faster than ever before. Time Magazine’s Editor-in Chief, Edward Felsenthal once said, “To imagine Rosa Parks with a Twitter account is to wonder how much faster civil rights might have progressed.” That being said, as members of the bar, we have a unique opportunity to set the standard for how to conduct ourselves as citizens who hold different viewpoints, opinions and perspectives. I would urge each of us to take the manner in which we practice in our profession and carry it over during our discourse with individuals outside of the courtroom. We are one of the few professions that is centered on arguments and adversaries; however, when outside the litigious arena we

continued on page 21 ENDNOTES: Urban Dictionary defines “lit” as being when something is exciting, live, “turned up or popping.” If you are still unfamiliar with this old slang term made new, just go down the hall and ask one of your newer associates. To my colleagues, come to the third floor and I’ll explain.



FROM THE JUDGES DESK: Make No Mistake, 2020 is 'Gonna Be "Lit"! continued from page 20 typically embrace one another with mutual respect. In other words, it is nothing for us to “leave it on the field.” Many members of the general public will be eager to state their opinions publicly on the issues decided by the SCOTUS. Some of these individuals will likely ask us where we side on these issues. I certainly am not here to tell you what to do or what to say during these situations; however, what I do see is a great opportunity, to be measured in your


responses, especially on social media. Since January is “technology month” I encourage everyone who feels the need to post and tweet about the issues before the SCOTUS, to do so wisely. I can assure you that you are not likely to change minds in 280 characters. However, once you have done your research, identified all of the issues, familiarized yourselves with the rule(s) of law, applied them and then drawn a conclusion; one that is stated in such a way that one of the most even-tempered

judges I know, Judge Mary Wiseman (shout out to the DBA Prez), would raise her eyebrows in awe, I believe that is the standard we must set for the general public. We, as members of the Bar, should set the example this year for how easy it is to disagree without be disrespectful. It sounds simple, but I can assure you that in today’s climate that is not necessarily the norm. So grab a seat, because trust me, 2020 is ’gonna to be lit.

January 2020 Dayton Bar Briefs



Are You SAD?


t’s that time of year again. Snow is falling, the air is cold, the sun only comes out occasionally, it is already dark by the time you drive home. You feel sluggish and unmotivated. While some of us might feel sad or blue at times because of the dismal weather and lack of daylight, winter affects others in a way that lasts more than a month and leads to depression. Winter seasonal affective disorder (SAD) is a recurrent major depression that affects 5% of the population or 14.5 million Americans. It can last up to five months each year. Be aware of these signs and symptoms of SAD.


Be conscious of what and how often you eat. Many people who have SAD tend to overeat and are not aware that they are doing so. Do you notice that you now eat more snacks and donuts that your employer sets out for its employees? Do you find that you often reach for foods loaded with carbohydrates? Maybe you are going to the vending machine more than you used to. At dinner, you begin to have seconds or thirds, and you are now eating dessert—something you never did. Overeating can cause a vicious cycle, where you start to become ashamed of yourself or embarrassed in front of people because you know you are eating too much, but cannot seem to stop, and then feel disappointed in yourself, which can lead you to overeat again. To keep from overeating, keep a food journal. You can write down when, how much and what type of food you are eating throughout the day. After a week, look for trends in your eating habits. Are you eating too much in the evening after work, or do you tend to splurge at lunch or breakfast? See if any of these overeating instances occur when you felt stressed, anxious or bad about yourself. This will help you become aware of your habit, and you can take measures to reduce how much you are eating.


Dayton Bar Briefs January 2020

Sleeping too much

Experts say that adults should get between seven to nine hours of sleep a night, but when you are battling SAD, you are probably sleeping too much. There are several reasons for this. The sun sets earlier in the winter months, which means it is probably already dark as you make your commute home. Because it is already dark, your body thinks that it is time to sleep. It has been proven that lack of sunlight leads to depression. The less sunlight you see in winter months the more likely you are to have SAD. If anxiety keeps you up at night, you might tend to try to make up for it during the day by taking long naps. A 20-minute nap might do wonders, but if you nap longer than that, it will disrupt your sleep, which could lead to another night of insomnia. You could be oversleeping to escape from reality. Your subconscious is telling you that when you wake up, you are going to have to deal with the issues that you have swept to the side. So you might as well sleep so you don’t have to stress or think about it. Regardless of the cause of your oversleeping, try to get seven to nine hours of sleep a night. This is easier said than done, but try to keep a consistent bedtime and wake time. Avoid caffeine and alcohol close to your bedtime. You can also rearrange your bedroom to make it an environment that makes you feel at ease so that you can sleep better. Exercise regularly, but not too close to bedtime, since that can keep you awake.

By Scott R. Mote Executive Director of the Ohio Lawyers Assistance Program

Social withdrawal

When you have SAD and you are plagued with the symptoms explained above, you do not feel like yourself. This makes it difficult to be social and do the things you once enjoyed. You come up with plenty of excuses to refrain from leaving the house. You tell yourself that you are too tired, you feel self-conscious because you ate too much and gained weight, you would rather use that time to sleep, you don’t want to talk to anyone because you feel as if you have nothing positive to say. Social isolation can worsen your depression, so it is very important that you take charge. If you find yourself overwhelmed, start small. Choose one person to talk to or one place you like to go, schedule it, and follow through. Once you meet this goal, see how you feel, and then make another goal. If you feel like you have SAD, talk with your doctor about options that can help you feel like yourself again. Your doctor might recommend: • Light therapy: Sitting or working near a light therapy box that gives off bright light that mimics natural outdoor light. • Talk therapy (psychotherapy): You speak with a therapist about your negative thoughts and behaviors and determine the best ways to cope with SAD and also how to manage stress. continued on page 23


OLAP: Are You SAD? continued from page 22

If you are unhappy, depressed, suffering from substance abuse, burnout, or stress, and you believe it is affecting your life, the Ohio Lawyers Assistance Program can provide CONFIDENTIAL help. For more information, go to ohiolap.org or call (800) 348-4343 or (614) 586-0621.

• Medication: If your SAD is severe, your doctor might recommend antidepressant medication. This can be helpful if you tend to get SAD every year, since your doctor can prescribe your antidepressant medication before the winter begins. • Mind-body techniques: Yoga, meditation, art or music therapy can help those with SAD.

SAD is a form of depression, and it is a serious illness. If you do not get help, it can lead to other health problems. Seeking help is a sign of strength. You want to be the best you, which means your clients are getting the best you. DAYTON Bar Association



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

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


January 2020 Dayton Bar Briefs


C ontinuing L egal E ducation January /February 2020 Wednesday, January 8 | 4:00 - 5:00pm | 1.0 General Hour Estate Planning, Trust and Probate Section presents... Update & Review of Personal & Estate Income Taxes Location: DBA Office Committee M $25 | M $35 | NM $45 | P $0 Thursday, January 16 | 12:00 - 1:00pm| 1.0 General Hour Workers’ Compensation & Social Security Section presents... Effective Use of Courtroom Technology Speaker: Honorable Mary Wiseman Location: Montgomery County CourtRm 4th Floor Room 8 Committee M $25 | M $35 | NM $45 | P $0 Wednesday, January 29 | 9:00 - 12:15pm | 3.0 General Hours 2019 Ethics Case Law Review and New Advisory Opinions (video replay) Location: DBA Office M $105 | NM $150 | P $0

DBA Annual

Wednesday, February 5 | 1:00 - 4:15pm | 2.5 Professional Conduct + 0.5 General Hours Well-Being Skills for the Effective Lawyer (video replay) Location: DBA Office M $105 | NM $150 | P $0

Probate Law Institute 3.6.2020

Run Out of Time? GO ONLINE

CLE offerings available online at:



Dayton Bar Briefs January 2020



The DBA acknowledges the contributions made by the 2019-20 Sustaining Members. With voluntary payments over and above normal dues, Sustaining Members are essential to the work of the DBA and the funds provided by them allow continued support of programs and services that benefit members, the Greater Dayton legal community, and the legal profession. CONTACT CHRIS AT CALBREKTSON@DAYBAR.ORG

20 1 9-2 0 S u st ai n i n g m e mb e r s Honorary Sustaining Members

Matthew D. Bruder Ronald L. Burdge Sam G. Caras Once deemed an Honorary Magistrate Robert L. Caspar Jr. Member of the Association, Frederick J. Caspar William O. Cass Jr. the member is exempt Mark R. Chilson from the payment of dues. Charles A. Claypool However, there are those Christopher H Cloud John M. Cloud who take their honorary Brooks A. Compton status in title only and Christopher R. Conard continue to support W. Michael Conway Shannon L. Costello the Association with Christopher F. Cowan contributions. We wish Jeffrey T. Cox to thank and recognize Sandra L. Cromwell the following exemplary F. Ann Crossman Edie England Crump members: Magistrate John A. Cumming Gary L. Froelich Robert M. Curry Robert J. Hadley James D. Dennis J. Michael Herr Richard G. Denny Martina M. Dillon Thomas E. Jenks Stephanie D. Dobson Ronald D. Keener Marilyn R. Donoff Honorable John W. Kessler Daryl R. Douple James R. Kirkland Jenna M. Downey Hon Frederick W. Dressel Konrad Kuczak Trisha M. Duff Daniel J. O’Brien Michael E. Dyer Honorable Walter Herbert Rice William B. Elliott William H. Seall Gregory M. Ewers Terence L. Fague Ralph A. Skilken Jr. Charles J. Faruki Louis E. Tracy Jonathan E. Faulkner Brian D. Weaver Francesco A. Ferrante Kristin A. Finch James L. Finefrock 2019-20 Sustaining Marc L. Fleischauer Martin A. Foos Members Stephen V. Freeze Honorable Dennis J. Adkins Neil F. Freund Deborah J. Adler Patricia J. Friesinger Charles F. Allbery III R. Brent Gambill James T. Ambrose Taylor L. Gamm Debra B. Armanini Charles F. Geidner Kevin W. Attkisson Caroline H. Gentry Gary W. Auman Daniel J. Gentry Michelle D. Bach Carl G. Goraleski Theresa A. Baker Honorable Barbara P. Gorman Marty A. Beyer Gary W. Gottschlich Harry G. Beyoglides Jr. David B. Grieshop R. Scott Blackburn Jonas J. Gruenberg Amy R. Blair Ted Gudorf Amelia N. Blankenship Dennis E. Gump Susan Blasik-Miller Christine M. Haaker Robert M. Blue Honorable Michael T. Hall Richard A. Boucher Chad D. Hansen Glenn L. Bower Jennifer Hann Harrison Karen D. Bradley Aaron Paul Hartley Dwight D. Brannon Zachary S. Heck Joan B. Brenner

James K. Hemenway Lawrence W. Henke lll R. Mark Henry Honorable James A. Hensley Jr. J. Stephen Herbert Chip Herin III. Stanley A. Hirtle Jonathan Hollingsworth Carol Jacobi Holm Honorable Mary Kate Huffman Kenneth J. Ignozzi Thomas J. Intili D. Jeffrey Ireland David E. Izor Matthew R. Jenkins Keith R. Kearney Thomas W. Kendo Jr. Scott A. King Thomas A. Knoth Julia C. Kolber Channing M. Kordik James G. Kordik David C. Korte Edward M. Kress Honorable Michael W. Krumholtz Judith A. LaMusga Thomas W. Langevin Laurence A. Lasky Erin Marie Laurito Michael G. Leesman William J. Leibold Gary J. Leppla Dennis A. Lieberman Richard A. F. Lipowicz Joshua R. Lounsbury L. Anthony Lush Michelle M. Maciorowski Barry W. Mancz Douglas A. Mann Laura Gabrielle Mariani David W. Marquis M. Todd Marsh Laura Jean Martin Patrick Martin Dianne F. Marx Craig T. Matthews Gwen M. Mattison Magistrate Kristi A. McCartney Joseph P. McDonald Stephen M. McHugh Glen Richard McMurry Honorable Michael R. Merz David P. Mesaros Adam R. Mesaros Stephen D. Miles Michael B. Miller John R. Mohr Markus L. Moll Brian A. Muenchenbach Bruce I. Nicholson Victoria L. Nilles Wayne P. Novick

Honorable Timothy N. O’Connell Timothy G. Pepper Nathaniel S. Peterson David P. Pierce Honorable James D. Piergies Denise L. Platfoot Lacey John D. Poley Vincent P. Popp Robert E. Portune Cara W. Powers Michael A. Rake Thomas G. Rauch Lynn M. Reynolds Bonnie Beaman Rice Paul B. Roderer Jr. David Jackson Roth John M. Ruffolo Marybeth W. Rutledge Jason John Saldanha B. Joseph Schaeff Seth W. Schanher Steven P. Schmidt Alfred W. Schneble III. Richard A. Schwartz Carl D. Sherrets Honorable Gregory F. Singer Honorable Richard S. Skelton John A. Smalley Edward M. Smith Bradley C. Smith John D. Smith R. Todd Smith Brian A. Sommers Mary K.C. Soter Lu Ann Stanley Mark Edward Stone Jeffrey A. Swillinger Thomas B. Talbot Jr. Richard A. Talda Jennifer D. Theibert Ira H. Thomsen Merideth A. Trott Honorable Michael L. Tucker Mark A. Tuss Timothy N. Tye Paul M. Ulrich Gayle P Vojtush Michelle S. Vollmar H. Charles Wagner Geoffrey P. Walker Robert C. Walter Sam Warwar Amy R. Webster RP, CP D K Wehner Martha M. Welch Cynthia Lynn Westwood Thomas P. Whelley ll. Merle F. Wilberding Jeffrey A. Winwood Honorable Mary L. Wiseman Barbara A. Zappe Patricia A. Zimmer


Pro Bono Partnership

PBPO Volunteers in Dayton: Making NonProfits and the Community Stronger A

ccording to Google, Ohio is ranked in the top five of the most charitable states. The Dayton community alone has hundreds of nonprofits, dedicated to charitable purposes. But along with that charitable purpose comes legal regulation, scrutiny, and risk. Pro Bono Partnership of Ohio (“PBPO”) is solely dedicated to supporting 501(c)(3) nonprofits who serve the disadvantaged or enhance the quality of life in the greater Dayton and Cincinnati communities by providing pro bono transactional legal services by partnering with volunteer attorneys in the community. This article highlights the great things that happen when our local attorneys volunteer to help our nonprofits through PBPO and shares their message of what is needed to continue to make Dayton strong.


Down a winding road south of Dayton, there is a white picket fence surrounding green pastures and a large barn. In the cool fall air that smells of horses and hay, you arrive at the Therapeutic Riding Institute, or TRI, one of the first therapeutic equine-assisted service nonprofit organizations for people with disabilities. It is only one of 275 centers in the nation that is Premier Accredited and, fortunately for us, it is in Dayton’s backyard. Christine Pirot, TRI’s Director of Development, leads visitors and families into the heated viewing room, where they can observe their loved ones participate in horse-riding activities in the indoor arena. As you can imagine, families that have children with special needs often have difficulty finding activities that they can participate in due to physical, mental, or sensory difficulties. Parents often feel frustrated, overwhelmed, or that they must constantly make excuses for their child due to their differences or disabilities, but TRI is a safe place for families and students alike. TRI offers classes six days a week to nearly 200 students with the help of over 200 volunteers, seven horses, and eight professional staff. As anyone with a legal cap on can imagine, such an endeavor requires quite a bit of legal strategy due to the risks involved, especially dealing with animals, volunteers, and property. “Prioritizing our legal projects, being in our corner, and making sure we get things done in the right way, PBPO has always made each project phenomenally easy. They find the experts in the field needed for each project, whether it is regarding our employee handbook, fundraising policies, a lease, or trademark requirements. Each volunteer we have worked with has been extremely helpful. They do all the work, have been responsive, and take time to explain things. Any nonprofit who isn’t signed up with PBPO should be. We feel more confident to go out into the community and serve knowing we


Dayton Bar Briefs January 2020

By Marcie Hunnicutt, Dayton Director & Counsel, Pro Bono Partnership of Ohio Photographed from left to right, pages 26-27: 1. Emma Grupe, TRI Volunteer; Amanda Novak TRI Participant and Christine Pirot, TRI Director of Development. 2. Michael Jacobs, Esq. 3. Cindy Garner, Executive Director, Clothes That Work 4. Jim Office, VP and General Counsel, Victory Wholesale Group 5. Jenny Warner, Executive Director, Miami Valley Nonprofit Collaborative

have our ducks in a row.” When Pirot was asked what she wanted to specifically communicate to the legal community, she responded, “There is so much need in the Dayton community. When you get involved with PBPO, your work is impacting the community on a much larger scale. Nonprofits are created to serve a mission to the public. The administrative side is critical, and we have to get it right from a legal and compliance standpoint. We truly need the legal support so that we can continue to support the community. It’s not just putting money towards our mission, it’s also putting our staff time towards our mission.”


Michael Jacobs is a semi-retired attorney living in Dayton who began volunteering for PBPO this year. He is former general counsel for Lexis Nexis, among other companies, and has enjoyed a long career practicing corporate and intellectual property law. “One project turned into four or five, and now I just took on another.” Jacobs continues, “The clients really appreciate and love the work you do for them, which isn’t always the case with paying clients. Although I am mostly retired, I like practicing law.” Jacobs likes the ease of volunteering through PBPO, both in terms of time and training. “Through PBPO, I can satisfy my need to practice law and help others at the same time in a flexible way. You aren’t stuck on a nine to five schedule. I can handle the projects remotely. Plus, before PBPO, I had to do court work, which I had never done before. What is great about PBPO is that I can focus on transactional work, which is completely in line with my experience and expertise, so no training is necessary.” continued on page 27


PRO BONO: PBPO Volunteers in Dayton continued from page 26


Just a hop across the bridge from downtown Dayton on Edwin C. Moses Boulevard, is a small storefront that packs a powerful punch against unemployment. Clothes That Work is a nonprofit that clothes, educates, and empowers individuals to prepare them for employment success. Cindy Garner, Executive Director for Clothes That Work, estimates the organization helps over 1300 people per year through the clothing and coaching program and over 1600 people through their education and training workshops. Clothes That Work has participated in several PBPO matters. Garner expressed the importance of utilizing the services PBPO offers even if a nonprofit has an attorney on its board of directors: “It is nice to be able to have the attorney focus on other things [that may be more in their wheelhouse or area of expertise] or are simply more time consuming. It also frees the nonprofit to focus on its mission versus worrying about legal risk. It is important to have their house in order first. PBPO is a true gift because it allows them to do this. While businesses have built-in legal departments, most small nonprofits do not. They simply do not have the resources. They are left dangling in the wind. Even with large endowment funds, those dollars are earmarked for specific programming or infrastructure – not legal expenses. As a result, for compliance issues, most nonprofits have outdated or neglected policies and procedures, which may become ripe for problems. PBPO is offering a wonderful and necessary resource to nonprofits that would otherwise be susceptible to legal risk.”


Jim Office is Vice President and General Counsel for Victory Wholesale Group (“VWG”), a family-owned company with its corporate headquarters in Springboro. When he isn’t working for VWG, Office volunteers for PBPO and has assisted PBPO with over fifteen legal projects. Office volunteers because, “You’re not just helping one person, but you are able to impact a whole community. It’s a way to give back using your competency level. And, PBPO makes it really easy. In projects where I needed bylaws,

articles, a copy of the IRS determination letter, you name it, PBPO provided what I needed to make the process easier, from intake to monitoring the matter.” When asked what kept Office coming back time and again, he replied. “I like learning about who is in our community and providing services. For example, through PBPO I got to work with a nonprofit that has over 450 tutors providing inner city assistance for math, reading, and science on a personal level with very effective results. It was incredible. I like being a part of that and PBPO allows me to express my own personal commitment to give back to the community.”


Operating on Findlay Avenue is the Miami Valley Nonprofit Collaborative (“MVNC”), whose mission is to build the capacity of nonprofit agencies and the effectiveness of those who work and volunteer in them. Since 2015, MVNC assisted over 2,000 nonprofit professionals representing over 500 local nonprofits with training and leadership development programs. Jenny Warner, MVNC’s Executive Director, states, “As a nonprofit ourselves, we were so excited to sign with PBPO. Most nonprofits simply proceed with no knowledge of the increased risk to the organization or alternatively, the increased expenses and administration costs, both of which can result in a cost to the community.” Warner continues, “We have nonprofits of all sizes come to us for help and they simply don’t have the resources they need. PBPO and the attorney volunteers are an incredible help. Part of our focus is on operational excellence, particularly in four areas: fiscal, governance, legal, as well as risk management. We knew right away we wanted to sign with PBPO as a client because they utilize excellent volunteer attorneys that are subject matter experts in these areas of operational excellence. Dayton’s nonprofits are in desperate need of such resources. For example, although serving the community is great, boards are often unaware of the need for bylaws as well as the obligations and responsibilities of board members. Most nonprofits simply proceed without the knowledge of the legal risk involved.”


Are you ready to help? We need you and your expertise! To volunteer, visit www.pbpohio.org and fill out a Volunteer Application. If you are on a nonprofit board or affiliated with a nonprofit, please tell them about us and the services we provide. For more information, please contact Marcie Hunnicutt, Dayton Director, directly at (937) 396-2131 or marcie@pbpohio.org.

DBA Staff Announcement The DBA is pleased to announce, DBA Publications Manager, Shayla M. Eggleton has received the National Association of Bar Executives (NABE) Luminary Award! The NABE Luminary Award is given once a year and recognizes excellence in bar association communications and marketing by honoring the outstanding communications projects of the past year. Shayla was recently awarded the 2019 Luminary Award for Excellence in Regular Publications Small Bar Category. Congratulations, Shayla on this outstanding achievement!


congrats! January 2020 Dayton Bar Briefs


M Members embersO OnnTThe heM Move ove Freund Freeze & Arnold is pleased to announce that Susan Blasik-Miller was presented the 2019 American Board of Trial Advocates (ABOTA) Professionalism Award. Founded in 1958, the ABOTA Professionalism Award recipient “is chosen for BLASIK-MILLER her exemplary integrity, civility, and professionalism throughout her career as a lawyer, teacher, and counselor, so as to inspire trust among counsel, promote civility and respect with and for the profession and the Civil Justice System.”. ABOTA is a national association of experienced trial lawyers and judges dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. ABOTA membership consists of more than 7,600 lawyers—equally balanced between plaintiff and defense—and judges spread among 96 chapters in all 50 states and the District of Columbia.

Taft Stettinius & Hollister LLP attorney Zachhas joined the adjunct faculty for his alma mater, the Indiana University Maurer School of Law. Zach will teach a course entitled Cybersecurity I to both law and graduate students. Zach is designing a brand-new course that will explore data HECK governance issues surrounding national security and law enforcement investigations, as well as regulatory compliance under federal privacy laws such as HIPAA, GLBA, and the European Union’s GDPR.

Gudorf Law Group, LLC is pleased to announce attorney Ted Gudorf has been recognized by Ohio Super Lawyers magazine as one of the top attorneys in Ohio for 2020. Each year, less than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Ted GUDORF Gudorf J.D., LL.M. is the owner of Gudorf Law Group, LLC. It is a boutique law firm, which specializes in estate planning, tax advisory, and elder care. The law firm has offices in Clayton, Centerville, and Troy. He is the co-author of The Estate Planning Guide published in 2018. Gudorf has also been certified as a specialist in estate planning, trust, and probate law by the Ohio State Bar Association.

Bieser, Greer & Landis, LLP is pleased to announce that Nathan E. Howe joined the firm on November 23, 2019 as an associate attorney. Before joining the firm, Nathan worked as a summer associate at the law firm of Dechert, LLP in Charlotte, North Carolina, and as an intern at the Department HOWE of Justice, Office of Legal Policy. Nathan is a veteran of the United States Marine Corps, and attended the University of Chicago for his undergraduate studies. He graduated from the Georgetown University Law Center in 2019.





ary Heck




Coolidge Wall Co., L.P.A. is pleased to announce the following: For more info contact Elaine F. Reinert,Applications Support | 937.223.8177 | reinert@coollaw.com

Coolidge Wall Co., L.P.A. is pleased to announce that seven of its attorneys have been selected by their peers for inclusion in 2020 Ohio Super Lawyers® and Attorney David Pierce, Immediate Past DBA President, was selected for two top lists:

Michelle D. Bach: Workers' Compensation Christopher R. Conard: General Litigation, State, Local & Municipal, Land Use/Zoning, Administrative Law, Criminal Defense, Estate & Trust Litigation Marc L. Fleischauer: Employment & Labor, Employment Litigation David C. Korte: Workers' Compensation Stephen M. McHugh: State, Local & Municipal, Estate Planning & Probate, Real Estate *David P. Pierce: Business Litigation, Employment & Labor, Civil Litigation Richard A. Talda: Business Litigation, Civil Litigation, Alternative Dispute Resolution In addition, Mr. Pierce received the distinction of being selected to the following Top Lists: Top 50: 2020 Cincinnati Super Lawyers Top 100: 2020 Ohio Super Lawyers 28

Dayton Bar Briefs January 2020


MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted via email and are subject to editing. These accouncements are printed as space is available. Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org



Dinsmore & Shohl is pleased to announce two of their Dayton Bar Association Member attorneys have been named to the Ohio Super Lawyers list and Rising Stars lists for 2020: Super Lawyer Thomas P. Whelley, II (Business Litigation) Rising Star: Glen R. McMurry (Business Litigation)

upcoming Chancery Club Luncheons These luncheons will be held at The Old Courthouse. Great speakers & topics, delicious catered lunch, networking & discussions! The DBA would like to thank the Eichelberger Foundation for its generosity with sponsoring these luncheons.

Remaining Chancery Club Luncheon Dates:

Friday, February 7th Friday, March 6th Thursday, April 2nd May TBA




DBA Classifiedss


Several Faruki PLL attorneys have been recognized for their notable talents in law in the 2020 edition of Ohio Super Lawyers magazine. D. Jeffrey Ireland was again awarded the title and has been named to the "Top 100 in Ohio" and "Top 5 in Cincinnati." Partners Jeff Cox and Erin Rhinehart were also named Ohio Super Lawyers for 2020. Christopher Hollon was named a 2020 Ohio Rising Star.




Green & Green, Lawyers, LLC, is pleased to announce that Thomas M. Green, Jane M. Lynch and Erin B. Moore were recognized as Ohio Super Lawyers® for 2020. Thomas M. Green has been recognized as an Ohio Super Lawyers® starting in 2009 and practices in the areas of commercial litigation, medical malpractice and complex injury litigation. Jane Lynch has been recognized as an Ohio Super Lawyers® since 2006, and is a AV Preeminent rated attorney by Martindale Hubble; and recognized again as a Best Lawyer in America© 2020, in the areas of Civil Rights Law and LitigationInsurance. Erin Moore has been recognized as an Ohio Super Lawyers® since 2017 and also practices in construction law, governmental liability law, and general insurance defense matters. Green and Green, Lawyers, LLC, was also recognized as a Best Lawyers of America© “Best Law Firm” in 2020. www.daybar.org

Classified ads are accepted each month, September through Summer. Copy and payment must be received by the first day of the month preceding the month of publication. BAR BRIEFS EDITORIAL BOARD reserves the right to refuse any ad. Classified ads of greater length are allowed. Members: $20 per 25 words | NonMembers: $30 per 25 words Additional $5 for DBA reply box

ATTORNEY Rogers & Greenberg, LLP, a well-established, medium-sized downtown Dayton law firm is seeking an Ohio licensed attorney with some experience in the business, estate planning and real estate practices of law. Please send a resume including references to: Michelle S. Vollmar, Rogers & Greenberg LLP 40 N. Main St., Suite 2160, Dayton, OH 45423 Email: mvollmar@rogersgreenberg.com LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at: http://www.daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules. MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com

January 2020 Dayton Bar Briefs


L aw -R elated O rganizations Dayton Bar Foundation

Help Build Our Foundation. T T

he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Life Essentials Guardianship Program

- Legal Aid of Western Ohio (LAWO)

Write, Call or Email: Jennifer Otchy, Executive Director Dayton Bar Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: jotchy@daybar.org

- Law & Leadership Institute - Wills for Heroes

University of Dayton School of Law


Dayton Bar Briefs January 2020


Greater Dayton Volunteer Lawyer Project

Welcome GDVLP President Jane Novick!

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

Professional Investigative and Legal Support Services Firm

 Polygraph


his month, I become President of the Greater Dayton Volunteer Lawyer Project (GDVLP) Board. Why do I want to do this? Part of my aspiration in becoming an attorney has always been to help people who cannot afford legal services. When I volunteered at a GDVLP Estate Planning Clinic as a second year law student at University of Dayton School of Law, it was love at first sight! I quickly realized that without this clinic, the individuals would not have been able to obtain a Will or Power of Attorney. I have had similar experiences in the Probate, Divorce, and Juvenile service areas of GDVLP. Juvenile Law is a popular service area at GDVLP. It can be an overwhelming process for Pro Se litigants attempting to file in the Juvenile Court. Although the Court has a Citizen Services Office that provides information on such filings, this office has limited manpower, and the Petitioners usually must pay a filing fee. This fee was a significant barrier to filing a Complaint or a Motion in the Court. During the year that I was staff attorney for the Citizen Services Office, I attended the monthly GDVLP Juvenile Law Clinic and assisted the attorneys from Sebaly Shilito +Dyer who volunteered. The time donated by these attorneys allowed many more people to be served. In addition, the filing fees were waived for all person using the Juvenile Law Clinic. On several occasions, GDVLP Executive Director Kelly Henrici and I spoke with inmates who were due to be released within two months from the STOP program (Secure Transitional Offender Progeam) and with participants at Families of Addicts (FOA), a local support group concerned with the opioid crisis. Kelly and I explained the many service areas in which assistance is provided by GDVLP. It was very rewarding to inform these individuals that GDVLP could provide assistance with filing for visitation as many of them thought that due to bad decisions in the past and lack of funds, that they had no legal recourse to file for custody or even visitation. Another very rewarding opportunity was the Driver’s License reinstatement clinic. This very exciting program, coordinated by GDVLP, occurred when the Ohio legislature obligated the Ohio Bureau of Motor Vehicles to waive reinstatement fees for low-income individuals, if underlying sanctions had been addressed. More than 500 individuals had underlying sanctions wiped from their records allowing them to obtain a driver’s license. Many employment opportunities are unattainable without a driver’s license. One father that I helped during the Driver’s License Clinic was then able to get a good paying job. HE was that now he would be better able to provide for his four children. Since 2016 I have headed the Montgomery County Juvenile Court CASA (Court Appointed Special Advocates) Program. The CASA Program provides volunteer Guardians ad Litem for abused and neglected children. I cannot imagine a more perfect way to spend my time and energy than to President of an organization that connects volunteer to low-income individuals and concurrently having a paid job that connects volunteers to vulnerable children.

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

Advertiser Index Support those who support the works of the DBA! Check out these advertisers. For reasonably priced DBA Ad Rates view the DBA Media Kit Online: https://bit.ly/2mguP8m

Daily Court Reporter...........................17 Eikenbary Trust..................................23 Ferneding Insurance...........................18 LCNB Bank.........................................21 MicroSun Lamp.............................7 & 23 National Processing Solutions...............9 OBLIC.....................................back cover R.L. Emmons & Associates...................31 Rogers McNay Insurance.....................11 Trisha M. Duff - Mediations..................21


January 2020 Dayton Bar Briefs


109 N. Main St., Suite 600 Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED