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The Magazine of the Dayton Bar Association | June 2017 | Vol. 66, No. 10


Bar Briefs

it's that's time of year to renew your dues!

Barristers of the Month The Treherne's pg 6

2017 Annual Meeting DBA Premier Event of the Year pg 25

2017-18 dba membership Renew Your Dues Today! pg 26-27



Bar Briefs

June 2017 | Vol. 66, No. 10

Dayton Bar Association Board of Trustees





Barbara J. Doseck



By Nathaniel S. Peterson Esq.

Jonathon L. Beck



By Barbara J. Doseck Esq.





Kermit F. Lowery



John M. Ruffolo, ex officio



2016 – 2017

Susan D. Solle President

Brian L. Wildermuth First Vice President

David P. Pierce

Second Vice President Secretary


Lynnette Dinkler Member–at–Large

Angelina N. Jackson Member–at–Large

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

Merle F. Wilberding Member–at–Large

Immediate Past President Bar Counsel

William B. Wheeler, ex officio Executive Director

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

Dedication, Commitment and Vision...Thank You Susan!

By Bill Wheeler, DBA Executive Director

A Leader Among Men (and Women)

By Susan D. Solle Esq.

The Suspension and Expulsion of Students with Disabilities

By Jane P. Novick Esq.

Musings on Mortality

By David C. Greer Esq. By Nadia A. Klarr Esq.

STOP Program

By Hon. Michael W. Krumholtz





UPCOMING EVENTS 25 2017 ANNUAL MEETING *The DBA Premier Event of the Year | Fri. June 9th | Sinclair College Bldg 12

Library of Congress ISSN #0415–0945

6:30pm Hors d'oeuvres & Cocktails 7:30pm Dinner & Meeting

William B. Wheeler, Executive Director Shayla M. Eggleton, Publications Manager Phone: 937.222.7902 Fax: 937.222.1308



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



Dayton Bar Briefs June 2017


Thurs. July 20th | Fifth Third Field | 7:00pm

*Tickets will be distributed at the DBA on July 13th at 8:30am. WILLS FOR HEROES Sat. June 3rd | Mont. Cty Regional Sherriff Ctr | 8:30 Training; 10:00-2:30pm Appointments



Dedication, Commitment and Vision...

Thank You Susan!! I

n each of my fourteen years as Executive Director of the DBA, I have had the privilege and pleasure to work with talented and engaged Board leaders. Each year has been marked by its own objectives, accomplishments, issues and distinctive organizational personality. It has been a personal privilege and pleasure to serve each one of these DBA presidents. The June issue of Bar Briefs affords me the opportunity to thank the outgoing President for his/her leadership & service to the Association and it share with our members. The 2016-2017 DBA year, led by President Susan D. Solle, has certainly been no exception and has been one highlighted by Susan’s dedication, commitment and vision. Susan’s dedication begins with her family; husband Jeff, sons Jake and Mitchel are her priority and understandably so. Even though she attends numerous school events, athletic games and family obligations, her work and volunteer commitments never suffer. I admire how Susan finds the time and energy to make all things work in her busy schedule. Her dedication to her career and professional responsibilities begin with her law practice in the areas of business, employment and insurance litigation and appellate advocacy. She has served as an Acting Judge in Montgomery County Municipal Court and for the past ten years has applied her skills and experience as an adjunct professor at the University of Dayton School of Law, teaching Appellate Advocacy. In addition to her demanding work schedule, Susan demonstrates her professional and personal commitment to the legal profession each and every day. She is a champion for providing pro bono services for those in greatest need in our community. She recently completed her term as President, and continues to serve on the Boards of Trustees, of Legal Aid of Western Ohio and Advocates for Basic Legal Equality, organizations that provide legal assistance to the underprivileged in 32 counties in Western Ohio. Susan also serves as Co-Chair of the DBA’s Women in Law Forum, which features interesting and timely discussions for the benefit of, not only Women, but men and law firms as well. Over the past three years, Susan has brought dedication and commitment to the DBA as a member of the Executive Committee of the Board of Trustees. When taking the reins as DBA President, she expressed a goal of developing methods to assist younger lawyers in becoming practice-ready more rapidly through experience with pro bono work, interaction with and guidance from seasoned attorneys and mentorship relationships within our legal community. Although a very challenging and involved task, Susan began laying the groundwork for such a plan. In an effort to better serve our members, Susan and the Executive Committee have also identified the need for a revised DBA website which provides greater functionality and mobile-friendly features. Following the approval of the Board, a design approach is now being evaluated and work is anticipated to begin in the near future. In commenting on Susan’s many admirable qualities, Tom Whelley (DBA’s 95th President and Susan’s law firm colleague) said: “Susan is…beloved by her colleagues, always prepared and fearless in the courtroom, very smart, a great legal writer and legal thinker, has an infectious laugh and loves to dance”. While devoting that same passion for the legal profession to her year as DBA President, Susan’s leadership has been highlighted by Dedication, Commitment and Vision. On behalf of the Membership, Board of Trustees and Staff, THANK YOU Susan for the countless hours of professional and personal time you have given to the DBA and for your leadership as its 102nd President!

By William B. Wheeler DBA Executive Director

P.S. Don’t miss the opportunity to hear Susan’s “infectious laugh” and perhaps observe her “love of dancing” by attending the DBA Annual Meeting on the evening of June 9th. www.daybar.org

June 2017 Dayton Bar Briefs



A Leader Among Men (and women)

By Susan D. Solle Esq. Outgoing DBA President Dinsmore & Shohl, LLP



here is no limit to what can be accomplished if it doesn't matter who gets the credit.” This quote is how Tom Whelley began his remarks about Bill Wheeler at the May 12th Chancery Club Luncheon where Bill was honored with the Liberty Bell Award. What a fitting description. I decided to devote my last Trustee Message as President to Bill because he has made my journey with the DBA, and many before me, so rewarding. So please indulge me while I tell you a little bit about the wizard behind the DBA curtain, Bill Wheeler. After growing up in Dayton and working here throughout his life, Bill became Executive Director of the Dayton Bar Association in 2003. Since then, he has led this Association to new heights. Bill is incredibly passionate about the DBA and the Dayton community. He works tirelessly every day to ensure the success of both. He constantly searches for ways to improve the DBA, always willing to listen thoughtfully to any and all ideas and to consider and discuss how member benefits can be enhanced. He also explores various ways the DBA and its members can improve this community. At the same time, Bill is a tenacious steward of the DBA funds. He is cautious about every expenditure and ensures that all of our dues and other funds coming into the DBA are used to benefit the members and the community. Bill is the perfect gentlemen Dayton Bar Briefs June 2017

and the ultimate professional. He pulls out chairs, opens doors, and is always respectful. Bill consistently places the needs of others before his own, and pays close attention to the details. For example, beginning with the first event we attended after I joined the Board, Bill has brought me a glass of my favorite wine before I even realize I want it. Kermit Lowery will tell you, at every meeting, there is a glass of ice and a Diet Coke waiting for him when he arrives. There is no underestimating this selflessness and consideration! Bill also has a subtle but witty sense of humor. Last year, Bill and I were talking about plans for the Annual Meeting and he referred to me as “Madam President.” I laughed and said, “Ooh, do I get a tiara? I’ve always wanted a tiara.” We laughed and moved on with our discussion. Weeks later, when I arrived at the Annual Meeting, there was a photograph of me at my place setting, wearing a tiara. Bill didn’t forget. This may or may not be why I chose a photograph of Bill wearing the Alcatraz hat he won at the NCBP/NABE Conference in San Francisco.1 While attending meetings with other bar associations around the country, it quickly became evident how much respect Bill has earned from other bar leaders. They often seek his advice, and in his typical manner, he happily obliges. The leadership he demonstrates with fellow bar leaders may only be overshadowed by the leadership he has demonstrated within the DBA. This is in no way meant to diminish the hard work and contributions of the DBA staff, who are remarkable in their own right, but simply to highlight their extraordinary leader. When I became President last summer, I spoke at the DBA Annual Meeting about the prominence of the Dayton Bar Association and how fortunate I felt to be part of the leadership of such an amazing organization. That belief has only been magnified over this last year as President and so much of that is owed to Bill and his staff. For those of you who have not heard, Bill is retiring in September of this year. We are now tasked with finding a new Executive Director, which will be a monumental challenge given the shoes that need to be filled. But Bill can never be replaced. He is not just the Executive Director of the DBA, he is its core. Thank goodness we still have him for a few more months, but I wanted to take this opportunity to say, thank you, Bill. You, sir, are one in a million. ENDNOTES: National Conference of Bar Presidents and National Association of Bar Executives.





i ls S for Legal Professiona

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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


Eichelberger Foundation Estabrook Charitable Trust

Faruki Ireland Cox Rhinehart & Dusing 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 Rhinehart & Dusing P.L.L. www.ficlaw.com With offices in Cincinnati & Dayton

Faruki Ireland Cox Rhinehart & Dusing 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. www.daybar.org

June 2017 Dayton Bar Briefs



James, Gretchen & Jason Treherne


ll too often, popular media portrays the lawyer or attorney as the uncaring individual, too wrapped up in the cold legal world to pay attention to their family and clearly in need of a reality check. However, as I walk into the Treherne Law Office, this trope couldn’t be further from my mind. Located in the lovely town of Englewood, the office has a homey feel to it, even with the hustle and bustle of the modern law firm. Even while seated at the conference table, I am greeted only by smiles. “It’s a lovely way to do business,” James Treherne explains to me. “My wife is our secretary, our son works with us, and I get to be among family throughout the day.” When it is put to me that way, it does sound quite nice indeed. James Treherne is the patriarch of the group. James attended Ohio Northern for his undergrad and for law school, after having his attendance at Ohio State interrupted by the draft. James served in the Vietnam War as a Scout, where he grew close to his service dog and partner, Kane. As a result of the strong bond between the two, James frequently gives programs in honor of Kane to this day. After graduating law school, James began to practice probate law, which he has continued to practice for 44 years. “It’s low profile, and you probably won’t see me on the 6 o’clock news,” James tells me, before pausing for a moment and smiling. “That is unless I’ve done something really bad.” Jason Treherne is James’ son, and is married to Gretchen Treherne. Jason attended Ohio State for his undergrad and University of Dayton for his law degree, graduating in 2001. He spent some time prosecuting for Montgomery County and working for 6

Dayton Bar Briefs June 2017

Freund, Freeze, & Arnold before starting his own practice. Jason works mainly in family law, with some criminal defense. He also serves as the prosecutor for the city of Englewood and as the city solicitor for the Village of Phillipsburg. Gretchen attended Spring Hill College in Mobile Alabama for her undergraduate and University of Dayton for her law degree, also graduating in 2001. She worked for Bieser, Greer & Landis for a time before moving to Jackson Lewis. There, Gretchen practices primarily in employment law. When asked what led him to law, James was candid: his parents made the decision for him. James’ uncle was a prominent labor lawyer, even having a few cases before the US Supreme Court, and it was James’s parent’s expectation that James would live up to the family tradition on prominence. James is fairly sure he has fallen short in that regard. For Jason, he was mainly unsure of what he wanted to do after school, and it seemed like law was, at the very least, owed a chance. Of course, years later, it would seem Jason was correct about that. Gretchen studied journalism for her undergrad degree, and planned for a job at a news network. She decided that a law degree would assist her in that pursuit by giving her a researcher background. However, in doing so, she was exposed to litigation and, finding a penchant for it, she changed paths to become the lawyer she is today. It is clear that the family aspect of the firm is important to both James and Jason. Despite some good-natured quips here and there (for example, the opinion that the firm works because neither one works for the

other, but rather just in the same building), both men feel that working with family is appealing. The family firm was started in 2006, and Jason was grateful for both his previous experience and the previous experience of James, which was relied on in more than one occasion. By working in conjunction, both father and son are able to do the work they prefer and to do that work more effectively. For James, having a younger son to keep up with the constant changing of technology is a tremendous boon. ( James does think he will need to speak to someone about getting Jason to lower the rent.) The Treherne family enjoys a wide variety of hobbies. James enjoys hunting, and actually does so with a flintlock rifle. He is a member and participant in several black powder clubs and competes as well. James explained that the trick with flintlock was that the weapons were only accurate up to a certain distance, and that most game had to be large, for obvious reasons. Jason plays tennis and likes to camp. He is a follower of sports, especially Ohio State Football, UD Basketball, and the Kentucky Derby. Gretchen enjoys cooking, shopping, and reading anything and everything. James and Gretchen have spent the past several years repairing and renovating a house that had been neglected and abandoned when they bought it. The renovation is historical in nature, as the house was formally owned by the Walther Family (of Dayton Steel Co. fame) and the renovation is staying true to the 1920s era style. Jason and Gretchen have two six-year old continued on page 7



children, a boy and a girl. And while they hope neither become an attorney, James is pretty sure at least one will. When asked if they had advice for younger attorneys, each offered some words of wisdom. Jason spoke about building good relationships with other attorneys, as other attorneys are able to offer experience and knowledge, especially in other areas of law one might not be practicing in. For Gretchen, it was important to recognize that the law is constantly evolving and changing. Cited laws can be changed, even within a week. Gretchen advised younger lawyers to not be complacent, and to be true to themselves. After thinking for a moment, she followed up with “Also, don’t be a jerk.” James advised young attorneys to follow around other lawyers, especially those like Jason. James said that it was important to see people in court and to get a feel for the kinds of clients one might see. James also advised on relying on magistrate’s, as they are knowledgeable in the subject matter, but that it was important not to treat them like law clerks. “I’ve received a few warnings about that,” James chuckles. All of the Trehernes have enjoyed their time as lawyers. Whether it’s the flexibility of having their own practice, being able to practice in the area of law of their choice, and the ability to be in the company of other attorneys and individuals they admire, all three speak highly of the practice of law. All three also feel as though the practice of law has provided life lessons along the way. Gretchen stated that law has enabled her to see the world from different people’s perspectives. Often, she says, the psychological aspect of law isn’t taught, and in many cases, the personalities of those involved can be


just as important as the blackletter law. Jason spoke about how the law allows him to come in contact with those he might not otherwise have met. Meeting so many different individuals puts things into perspective and has helped to make him more empathetic. James also enjoys being able to meet people, especially those good people who appreciate what a lawyer can do for them and who really need someone who can listen and help. Though it has been a relaxing and fun conversation, the demands of the law cannot be put off for long. After a round of handshakes and farewells, I exit the Treherne Law Office, having come to one resounding conclusion: when it comes to lawyers, it’s clear that Hollywood needs to take its cues from the Trehernes.

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

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By Nathaniel S. Peterson Esq. DBA Editorial Board Brannon & Associates

June 2017 Dayton Bar Briefs



“Diversity is being invited to the party; inclusion is being asked to dance.” -Verna Myers, Diversity and Inclusion Expert


he Diversity Committee received a substantial amount of positive feedback about this year’s seminar, entitled “The Diversity Gap in the Legal Profession”, which focused on addressing the absence of diverse individuals in the legal profession. The morning started with a presentation of data from the University Of Cincinnati College Of Law, Assistant Dean Staci Rucker, and if the name sounds familiar it may be because Dean Rucker spent several years at the University Of Dayton School Of Law. The Committee felt that she would provide an insightful perspective about what the legal profession actually looks like. Dean Rucker shared that in 2016, 32% percent of summer associates were minorities however that percentage dropped to 23% for associates and only 8% of partners were minorities In 2016 the statistics for women were: 49% of summer associates were women, 45% of associates were women and 22% of partners were women. Data that she shared for openly LGBT attorneys illustrated that 4.9% were summer associates, 3.2% associates, and 1.9% were par tners. Her presentation established what many of us should already know; some diverse populations are not well represented the practice of law. Dean Rucker also discussed American Bar Resolution 113. Which in pertinent part states, “F URTHER ERSOLVED, That the American Bar Association urges clients to assist in the facilitation of opportunities for diverse attorneys, and to direct greater percentage of the legal services they purchase, both currently and in the future, to diverse attorneys; and…” Corporations that support this resolution include Visa, CBS, Mattel, Mc8

Dayton Bar Briefs June 2017

By Barbara J. Doseck Esq. Co-Chair Diversity Issues City of Dayton Law Dept

Donald’s, JP Morgan Chase, Ebay, Macy’s, and too many others to list. So both our profession and corporations recognize the significance and value of having a diverse legal profession. Following Dean Rucker’s presentation

there were two multi-participant panels. The first panel represented the existing pipeline for diverse individuals who may be interested in the legal profession in the Dayton region. The panelists included representatives from Parity Inc., the Law and Leadership Institute, the SWEL program, and a minority clerkship program. The intended focus of this panel was to educate the bench and bar of the available programs in the area as well address some of the hurdles and needs each program has. While planning this seminar, two of the panelists were unaware of each other’s program and were able to connect and work together as result of participating in Diversity Day. This was a wonderful example of the purpose behind Diversity Day – to connect different diverse programs with one another. Our second panel consisted of employers in both the legal and non-legal sector. The intended panel focus centered on the recruiting and retention of minority candidates. As a committee, we felt strongly that we needed to hear from employers outside of the legal community. If the legal community was doing an effective job of recruiting and retaining diverse candidates, a diversity gap would not exist. This panel included representatives from Wright Patterson Airforce Base, Proctor and Gamble, the City of Dayton, and general counsel for Focus Care Inc. The discussion ranged from difficulties in recruiting diverse candidates, what measures employers have taken to increase diversity, personal experiences that made attorneys feel included and welcomed, and how to create to an environment that promotes inclusivity. It was helpful to hear a large corporation’s approach and some of the programming they continued on page 21





2016-2017 DBA Foundation contributions The Foundation serves as the Philanthropic Organization for the Greater Dayton Legal Community. Through the Foundation, DBA members join together to support a wide variety of good works and charitable activities in the greater Dayton community. The Foundation is supported solely by Members and Friends of the Foundation.

Thank you for your Support of Your Foundation! Glenn Bower, Esq. Hon. James Brogan Donald Compton, Esq. Hon.William Clark John Cumming, Esq. Brooks Compton, Esq. Christopher Cowen, Esq. Robert Curry, Esq. Gary Froelich, Esq. CharlesGeidner, Esq Carolyn Gentry, Esq. Jose Gonzalez Jr., Esq. Rebecca Greendyke, Esq. Gump & Associates Ralph Heyman, Esq. Hon. Mary Kate Huffman Kenneth Ignozzi, Esq. James Jacobson, Esq. Thomas Jenks, Esq. Hon. John Kessler Scott King, Esq. Nadia A. Klarr, Esq. Leo Krebs, Esq. Larry Lasky, Esq. Gary Leppla, Esq.


Dayton Bar Briefs June 2017

Dennis Lieberman, Esq. Hon. John Meagher David Miles, Esq. James Neef, Esq. Bruce Nicholson, Esq. Hon. John Pickrel Lynn Reynolds, Esq. Hon. Walter Rice & Bonnie Rice, Esq. Charles Roedersheimer, Esq. John Ruffolo, Esq. Andrea M. Seielstad,Esq . R. Anne Shale, Esq In Memory of Judge Judy King Edward Shank, Esq. Jeffrey B. Shulman, Esq. In Memory of Pete Donahue Bradley Smith, Esq. John Stachler, Esq. Joseph Tafelski, Esq. Louis Tracy, Esq. Tracy & Tracy Co. LPA In Memory of Mary Tracy Brian Weaver, Esq. D.K. Wehner, Esq. WilmerHale


Having an Offsite Meeting? Consider the DBA Facilities

Additional Member Benefit Low rates Beverage service available Call to reserve space today! 937.222.7902 The DBA offices are equipped with a variety of meeting and conference rooms for use by our members, law firms, businesses and organizations. Our facilities will accommodate groups as large as 75 people, depending upon set up requirements, and can be reserved with just a phone call. Consider the DBA for all your meeting needs: Depositions, Mediations & Arbitrations, Training, Client Meetings, Firm Events, Retreats and more. Located adjacent to the Schuster Performing Arts Center, the DBA is a convenient walk from the business district and a short drive from anywhere in the Miami Valley. www.daybar.org

June 2017 Dayton Bar Briefs



Choosing the Right Social Media Platforms to Grow Your Firm’s Book of Business By Bill Miller, Founder, Miller Creative Strategies, LLC


he first questions that my firm receives when interacting with new and existing law firm clients are 1. “If we should use social media, which one(s) are the best choices for attorneys to use?” 2. “How does our firm post, tweet, etc. as a ‘single voice’ to ensure that our messaging is consistent?” 3. “Are attorneys permitted to engage social media as a means to market their firms and/or reach its clients and/or prospective clients” The fast responses are 1) Yes and as many of them as you have time to use on a regular basis; 2) Assign one attorney with a singular writing style (or engage a competent legal marketing firm!); 3) Yes! The OSC ruled on this issue. As with any of your firm’s communication efforts, the best social media platforms to use are where your clients and prospective clients are. Keep your audience and objectives in mind as you choose on which social media platforms to focus. Some media are better suited for meeting your objectives for earlier stages of the client lifecycle, while others, with more advanced targeting options, allow you to reach them at every stage of your clients’ selection (and retention) cycle. I will cover a variety of social media platforms in the coming issues of the Bar Briefs Magazine given the scope and importance of this topic to every law firm in the 21st century. It is important to remember that it is not enough to merely post on any of these sites; the key is to engage and build relationships with your clients continuously! FACEBOOK Facebook is, by many law firms to be the “gold standard” - one of the most widely adopted social media platforms. In fact, according to Pew Research Center, 71% of American adult internet users are Facebook users as well. Globally, there are more than 1.59 billion active users and 1.44 billion active mobile users on Facebook every month. Its continued success is largely attributable to its focus on customer experience and its ability to navigate the shift to a mobile-first world. Facebook offers more than just a way to stay connected to friends, family, and colleagues; it is an essential tool to connect with your firm’s clients on important legal topics, “big wins” and news announcements about the firm. Since it officially created a space for brands in 2007, it has continued to evolve the ways that any attorney can engage with his or her clients. Facebook allows your firm to be available to people on a trusted, popular platform, where potential clients can not only engage with your firm and its brand, but also see “real” people (their network) interacting with you. This attribute sets the stage for you to build stronger, more authentic relationships with them. A Facebook Page, the business equivalent of a Facebook profile, is the central hub of your firm’s brand. To accomplish this goal, attorneys need to strike the critical balance of offering content that is relevant and adds value with content that entertains. For your Facebook posts, be sure to have a mix of fun, ungated (without a form as a barrier) content and offers as well as more educational, gated content and promotions (using a form as a barrier to your asset or promotion). IMPORTANT FACEBOOK FEATURES Tabs and Apps Tabs and apps sit in two places on your Facebook page: in the navigation bar under your firm’s Page’s cover photo and on the left side of your timeline. Tabs come with your Page and help users navigate through content such as your photos, videos, and events. Tabs can also be used to host a variety of apps, which help a law firm to extend their capabilities directly on their Facebook Page, including news and information,


Dayton Bar Briefs June 2017

Miller Creative Strategies, LLC, is a marketing and public relations firm with more than a decade of extensive law firm experience, linking talent, innovation and expertise of the company's founder, Bill Miller, with best-in-class partners. We deliver business solutions, e-commerce/technology, strategic planning, branding campaigns, and marketing tools and processes for our clients and their success.

connecting to your other social accounts, hosting a landing page, and more. To see what is available and choose apps to add to your Page’s tabs, visit the Facebook App Center. The benefit of using tabs instead of directing a user right to a landing page is that the Facebook user is able to stay within the Facebook ecosystem and does not navigate away. Facebook Groups The Group feature is useful for demonstrating your firm’s passion and expertise in a topic and connects like-minded people to share ideas and insights. It is a way for brands to drive and participate in conversations revolving around their interests. And the more members in your group, the more it gets promoted to their networks, increasing the group’s popularity and growth. Creating a Facebook Group is a great way for any attorney to create awareness, increase inbound traffic, and foster loyalty. For example, you could create a group for your existing clients or around a legal issue that your firm’s practice area(s) addresses. While you cannot create a group on behalf of your firm’s Facebook Page, you can create one from a personal account. A question that my firm faces from attorneys is the issue of paid Facebook advertising. Having a complete Facebook Page profile with regular updates is an important step to building your audience, but to take full advantage of Facebook’s large user base and people-based targeting options, many businesses—those targeting consumers of legal services as well as those targeting business professionals—are turning to paid promotions. Some of Facebook’s paid promotions include Boosted Posts (also known as promoted posts), which allow you to put paid advertising and targeting behind a post on your Facebook Page. Additionally, they offer advertising, which operates off a traditional pay-per-click model, such as promoting your Page or other offers. Will they work for your firm and its practice areas-targeted clients? Test, test, test…. The next installment of social media for law firms includes Twitter.

Source – Pew Research Center January 2016



100% Club Members The DBA strives to be a leader in the Dayton community by continuing the legacy of excellence in the legal profession via development opportunities, quality programming on substantive issues, and guidance through ethical and professional issues. The DBA Association would not be the strong organization that it is without members like you and the additional support provided by our sustaining members. The 100% Club is a special category of membership and all firms and legal organizations with two or more attorneys are invited to join the Club! Contact Chris at calbrektson@daybar.org for more information or to correct any listing that does or does not appear. This list was created November 2016. If you are interested in becoming a 100% Club Firm, simply contact Carol for any DBA membership dues related enquiries and/or submit the dues payments online: www.daybar.org. Thank you to our 100% Club Members for the 2016-2017 Bar year:

Firms with 70+ Members WilmerHale Firms with 30-39 Members Coolidge Wall Co., LPA Freund, Freeze & Arnold, A Legal Professional Association Montgomery Cty Public Defender’s Ofc Firms with 20-29 Members Montgomery Cty Common Pleas Ct 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 Flanagan Lieberman Hoffman & Swaim Horenstein Nicholson & Blumenthal, LPA Montgomery Cty Domestic Relations Ct 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 Ofc Dayton Municipal Court Dayton Power & Light Company Douple Beyoglides Claypool Kovich


Firms with 5–9 Member - cont. Lipowicz & LaMusga Dysinger & Patry, LLC ES Gallon & Associates Gottschlich & Portune, LLP Green & Green, Lawyers Hochman & Plunkett Co., LPA Montgomery Cty Probate Ct Premier Health Partners Subashi & Wildermuth Thorson Switala Mondock & Snead, LLP Firms with 2–4 Members Albert & Krochmal Allbery Cross Fogarty Baldwin Valley Law, LLC Bogin Patterson Ellis Staton & Stump, LLP Boucher & Boucher Co., LPA Bricker & Eckler, LLP Bruns Connell Vollmar & Armstrong, LLC Burdge Law Office Co., LPA Cincinnati Insurance Company Cowan & Hilgeman Crossman & Maciorowski, LLC Robert L. Deddens Law Offices Dinkler Pregon, LLC Elliott & Faulkner, LPA Esler & VanderSchaaff Co., LPA Fox & Associates Co., LPA Gammell Ross & Hoshor, LLC Gregory M. Gantt Co., LPA Gudorf Law Group, LLC Hedrick & Jordan Co., LPA Hochwalt & Schiff, LLC Holzfaster Cecil McKnight & Mues, LPA Intili & Groves, LPA Jablinski Roberts & Gall, LPA Jackson Lewis, P.C.

Firms with 2–4 Members - cont. Jacox Meckstroth & Jenkins Kendo Dulaney Law 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 Cty Municipal Ct, Eastern & Western Div(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

June 2017 Dayton Bar Briefs



The Suspension and Expulsion

of Students with Disabilities By Jane P. Novick Esq. Juvenile Law Committee Montgomery Cty Juvenile Court


his article will discuss whether school districts may suspend or expel children with disabilities at will. In 1988, The U.S. Supreme Court opined, “We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.”1 Despite this ruling, students with a disability (as defined in 20 U.S.C. 1401(3)) are over twice as likely to receive one or more out of school suspensions than students that do not have a disability.2 Children with a disability were routinely excluded from school prior to the enactment of Public Law 94-142, also known as The Education for All Handicapped Children Act of 1975. The current version of this law is known as the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). The purpose of IDEA is to ensure that “a free appropriate public education (FAPE) is available to all children with disabilities…including children with disabilities who have been suspended or expelled from school.”3 On the one hand, Federal and State laws protect the rights of children with disabilities to attend public school; on the other hand, schools need guidance regarding children whose behaviors disrupt the school environment. The IDEA Regulations have a section entitled “Discipline Procedures.” Pursuant to 34 C.F.R. 300.530 the length of the out of school placement helps to determine which rules governing suspensions and expulsions are to be followed by the Local Educational Agency (“LEA”). A change in placement occurs when there is a substantial change in the student’s educational program.4

Short-term Suspensions

When a child with a disability violates a code of student conduct and is suspended or removed from his current placement to an appropriate interim alternative educational setting (IAES) or another setting for ten consecutive school days, or less, the LEA must follow the same procedure as used for children that do not have a disability.5 During this time the LEA is not required to provide educational services to the student (unless it does so for students without a disability.)6 However, the Office of Special Education Programs and the Office of Special Education and Rehabilitative Services states that “short-term disciplinary removals doesn’t negate their obligation to address, …whether the student needs new or different behavioral interventions and supports to receive FAPE in the least restrictive environment.”7

Notice for Short-term Suspensions

The U.S. Supreme Court stated in Goss v. Lopez, that students facing a suspension for a period of 10 days or less do not have the right to a full hearing, but under the 14th Amendment are afforded 14

Dayton Bar Briefs June 2017

“some kind of hearing.” The Court went on to state that most likely this hearing would be an “informal discussion” conducted by the School District.8

Long-term Suspensions or Expulsions

Once the LEA seeks to remove the child from his or her current placement for more than 10 days the LEA, the parent(s) and relevant members of the IEP Team must meet within 10 days of the decision to change the child’s school placement to determine if the child’s behavior was a manifestation of the child’s disability.9 This is called a Manifestation Determination Review (“MDR”). The MDR team will review all relevant information in the student’s file in order to determine (a) “if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or (b) if the conduct in question was the direct result of the LEA’s failure to implement the IEP.” If the MDR determines that the behavior was a manifestation of the child’s behavior the IEP Team shall “conduct a functional behavioral assessment (“FBA”) and implement a behavioral intervention plan (“BIP”). If the child already has a FBA and BIP, the team will review those documents and modify it as necessary to address the behavior. The child shall then be returned to his school placement from which he was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the BIP.10 If the MDR team determines that the child’s behavior was not a manifestation of the child’s disability then the school may apply to the child the relevant disciplinary procedures applicable to children without disabilities provided it is done in the same manner and for the same duration in which the procedures would be applied to children without disabilities.11 A MDR must also take place if a child is removed for less than 10 days, if there are a series of removals that would constitute a pattern. A pattern is considered to be present if the removals total more than 10 days and the child’s behavior is substantially similar in each incident that resulted in a removal. Additional factors, such as length of each removal, total amount of time child was removed, and proximity of the removals to each other are also considered.12 There are special circumstances in which a child may be removed to an IAES without regard to whether the behavior is determined to be a manifestation of the child’s disability. If a child (1) carries or possess a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency; (2) knowingly possesses or uses illegal drugs, or sells or continued on page 15


JUVENILE LAW The Suspension and Expulsion of Students with Disabilities continued from page 14 solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or (3) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.”13 In such a situation a child may not be removed to an IAES for more than 45 school days.14 Furthermore, the school must conduct a FBA and BIP, if the child has none, or modify the existing ones so that the negative behaviors do not recur. In all cases when a child is removed from his or her current placement for more than 10 consecutive school days, or due to special circumstances, the LEA must continue to provide a FAPE, so as to enable the child to continue to participate in the general education curriculum, although in another setting and to progress toward meeting the goals set out in the child’s IEP.15 However, LEA is not required to provide the student the same services in the same setting as before the suspension or expulsion. 16

Notice for Long-term Suspensions or Expulsions

Under IDEA there are two separate notice requirements for LEAs that plan on changing the placement of a student with a disability. On the date on which the decision is made to change the placement “due to a violation of a code of student conduct, the LEA must notify the parents of that decision and provide the parents the procedural safeguards notice.”17 This notice must include an explanation of the decision that was made as well as the parental options with regard to procedural protections. The other required notice is to notify parents before the LEA proposes or initiates a change in placement. This must include: description of the proposed action, explanation of why the agency seeks to take the action and a description of the information the agency relied on to make the decision.18


When an Appeal is filed challenging the child’s change in placement or MDR, the child must remain in the IAES pending the decision of the hearing officer or until the expiration of the suspension, whichever occurs first, unless the parent and LEA agree otherwise.19 The parent(s) or LEA may request an expedited due pro-


cess hearing. Such a hearing must occur within 20 school days of the date that the due process complaint requesting the hearing was filed. The hearing officer must make a determination within 10 school days after the hearing.20


If the State determines that significant disproportionality based on race and ethnicity is occurring in a LEA with respect to identification of children with disabilities or the incidence, duration, and type of disciplinary action including suspensions and expulsions, the State must require the LEA to review and if appropriate revise its policies, procedures, or practices.21


The Discipline Procedures of IDEA were designed to prevent LEAs from indiscriminately suspending or expelling children with disabilities. Despite this, LEAs continue to find ways to remove children with disabilities from their original placement. It is imperative that parents of such children and their attorneys understand the protections IDEA provides for their children. ENDNOTES: Honiq v Doe, 484 U.S. 305 (1988) Office of Civil Rights, Civil Rights Data Collection (2012) 3 20 U.S.C. 1412(a)(1)(A) 4 71 Fed. Reg. 46,588 (2006) 5 34 C.F.R. 300.530 (b)(1) 6 Ibid 7 Dear Colleague Letter, 116 LRP 33108 (OSERS) 8 Goss v Lopez, 419 U.S. 565 (1975) 9 34 C.F.R. 300.530(e) 10 Ibid. and 34 C.F.R. 300.530(f ) 11 34 C.F.R. 300.530(d) 12 34 C.F.R. 300.536 13 34 C.F.R. 300.530(g) 14 Ibid 15 20 U.S.C. 1412(a)(1)(A) 16 Van Buren Pub. Schs., 115 LRP 12439 (SEA MI 02/06/15) 17 34 C.F.R. 300.530 (h) 18 34 C.F.R. 300.503(a-b) 19 34 C.F.R. 300.533 20 34 C.F.R. 300.532(c)(2) 21 Questions and Answers on Disproportionality, 52 IDELR 267 (OSERS 2009) 1 2

June 2017 Dayton Bar Briefs




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


Alan Bomar Jones as a young Thurgood/ Howard Law student

he Human Race Theater Company’s presentation of Thurgood, a one man play about the life and times of former Supreme Court Justice Thurgood Marshall, came to an end last month. Unlike other works about Marshall, the play illustrated how he was much more than just Brown v. Board of Education. The play tracked his life from his adolescence in Baltimore through his days as a lawyer to his time on the nation’s highest court. It was written by George Stevens, Jr. and directed by Scott Stoney. And Alan Bomar gave a rousing performance of the late Supreme Court Justice. Thurgood captured how Marshall’s law school professor, Charles Hamilton Houston, inspired Marshall to use the law to bring about the change that he wanted to see in the world. He taught Marshall that, regardless of practice area, there are only really two different types of lawyers: those that are social engineers and those that are social parasites. Bomar’s performance demonstrated how Marshall took that lesson to heart and used the law to mold America into a society that was more inclusive and equal for people of color. On May 3, 2017, the Dayton Bar Association in conjunction with the University of Dayton School of Law and the Thurgood Marshall Law Society hosted a private viewing of Thurgood at the Caryl D. Phillips Creativity Center. Lawyers that attended the event received CLE credit and were treated to a panel discussion on the state of the nation’s education system. The panel featured the Honorable Judge Walter H. Rice of the U.S. District Court for the Southern District of Ohio; Retired Honorable Judge Nathaniel R. Jones of the U.S. Court of Appeals for the Sixth Circuit; and University of Dayton Vice President for Diversity and Inclusion Dr. Lawrence Burnley. Each panelist shared their views on what needs to occur to truly realize the promise of the Brown v. Board of Education decision. For a couple of hours Thurgood allowed audiences to peer into the life a lawyer that weaponized the law to break down racist institutions and help people of color fully realize the civil rights granted to every citizen of this great nation. If you missed it, you definitely missed out!

Alan Bomar Jones as Thurgood Photo Courtesy of Scott J. Kimmins

Panel Speakers before the show 16

Dayton Bar Briefs June 2017


DBA News DBA Officers Participate in ABA Bar Leadership Institute


oining over 300 other emerging leaders of lawyer organizations from across the country at the American Bar Association’s Bar Leadership Institute (BLI), March 15-17 were Brian L. Wildermuth, President-Elect and David P. Pierce, Second Vice President of the DBA. The BLI takes place annually in Chicago. It offers incoming officials of local and state bars, special focus lawyer organizations and bar foundations the opportunity to confer with ABA officials, bar leader colleagues, executive staff and other experts on the operation of such Associations. Wildermuth and Pierce joined ABA President Linda A. Klein, and ABA President-Elect Hilarie Bass, in sessions on bar leadership, governance and communications.


June 2017 Dayton Bar Briefs



Musings on Mortality

In his recent study of the novels and life of William Faulkner, André Bleikasten offers comments that endorse the purpose and value of the Dayton Bar Association’s Annual Celebration of Life Memorial Luncheon. He notes that everyone wants his or her destiny marked by the seal of his or her own will and identity and that none of us can do more than leave traces of ourselves behind.

Traces left by the dead: calling, recalling, reference points for the living. Traces and networks of traces, By David C. Greer Esq. DBA Editorial Board traceries of signs without which the world Bieser Greer & Landis, LLP would no n May 9th we experienced memorable traces of members of the longer be habitable.


Bar who have crossed the bar in the past year. • The memories of Betty Busch shared by Richard Carr and Judge Huffman illuminated an intrepid, caring, sharing, and loquacious lady who entered the Bar at a time when it presented significant barriers to her sex, thrived, and served twenty years as the County Law Librarian in an era when lawyers actually relied on books. • The memories of Andrew Cherney shared by Lisa Pierce restored to life a master craftsman of unambiguous documents who faced each day with a compulsive array of sharpened pencils and an appreciation for a well-wrought lunch in the presence of excellent company. • The memories of Harold Croghan shared by his family through Jeff Swillinger reflected a War hero who heroically shouldered the role of corporate counselor at Phillips Industries in a life free of bad habits and full of good personal relationships. • Bob Brown shared his memories of Pete Donahue, a calm, reasoned, companionable business counselor who carried his religious devotion from Notre Dame to the only Catholic chapel discoverable in northern Scotland and pursued his profession with the same diligence and dedication that carried him through twenty-six marathon runs. • The memories of Winn Hamrick shared by Bob Deddens brought back to life another marathon man who spent sixty-five years of dedication to our profession and whose ability to persuade, control and maintain his clients was reflected in the fact that he had the help and devotion of the same secretary for sixty-three of those sixty-five years. • The larger-than-life presence and booming laughter of Paul Horstman were revived in the remarks of Jeff Ireland who left unspoken many of the anecdotal moments which Paul left behind as he advanced past countless cases and University of Dayton basketball games from his role as Judge Weinman’s law clerk through his partnerships at Smith & Schnacke and Faruki, Gilliam & Ireland. • Jim Ritchie, who grew up with her husband and spent seventeen years as a paralegal at his law firm of Sebaly, Shillito & Dyer, painted a vivid picture of Carley Ingram as a fiercely independent, strong-willed lady who held tight to her impressive intelligence and sense of equality and became a remarkably effective writer of


Dayton Bar Briefs June 2017

persuasive briefs and articulator of persuasive appellate arguments. • Affability and undiluted joy in every day of his personal and professional existence were the qualities that Janet Cooper emphasized among the many skills and personal qualities of Dwight Washington with whom she practiced for almost forty years. In terms of metaphor, but sadly not in terms of health, Dwight had the best heart in the world. • Bill Winks was remembered by Judge Huffman as an effective advocate on behalf of defendants in civil cases and a man who weathered the storms of such disputes with an irremovable smile on his face. There were other Dayton lawyers and former lawyers who left the world in the past year. Among those fondly remembered were Bill Schenck, Bob Womsley and Judge Judy Cross. All of them left traces which color our own personalities and sharpen our sense of humanity. The tasks of mourning have been defined as release and reappropriation. Those individuals we honored at the recent luncheon have been released from the physical encounters we have experienced with them. The remaining task is to reappropriate the traces left by their professional lives. Through that task, and with the aid of the recent celebration of those lives, they remain as companions in shared memory.



June 2017 Dayton Bar Briefs



Liberty BellAward 2017 Recipient DBA Executive Director William B. Wheeler


he DBA's Public and Member Services Committee awarded William B. Wheeler, Executive Director of the Association, the 2017 Liberty Bell Award at a ceremony held May 12th at the Old Montgomery County Courthouse in downtown Dayton. Mr. Wheeler has led the organization since 2003 and has announced plans to retire in September of this year. During his tenure, the Board of Trustees and staff have initiated membership growth, created a wide variety of programs, services and resources to assist legal professionals and the citizens of the greater Dayton community. Mr. Wheeler’s unwavering efforts as Executive Director have been to enhance the community’s understanding and appreciation of the legal profession. The DBA presents the Liberty Bell Award annually to one citizen who has rendered outstanding service to the community. The Dayton Bar Association considers this award to be a prestigious one, with all fields of endeavor intended for inclusion in the selection process, such as education, business, science, communication, labor, government, religious vocations and youth organizations.

Photo captions clockwise: wSusan D. Solle Esq., DBA President gives remarks wBill Wheeler & Wife, Charlene wBill Wheeler & Judge Jeff Froelich wGary Weston of Legal Aid of Western Ohio, speaking during The Chancery Club Luncheon about "The History of Legal Aid" 20

Dayton Bar Briefs June 2017


DIVERSITY ISSUES continued from page 8 have generated to address its concerns about promoting diversity and inclusion. The City of Dayton spoke to areas where there have been continued struggles to diversify specific departments, notably the safety forces. We also heard about changing a culture to create an environment that is inclusive and personal struggles in being an openly LGBT candidate. The panel’s diverse perspective was effective in generating suggested approaches to tackling the diversity gap in the legal profession. We ended the morning session by breaking the attendees into groups for discussion. The groups were given hypotheticals that were intended to mirror reoccurring issues that diverse candidates, law firms, and government offices face .The hypothetical scenarios prompted discussions there healthy and much needed dialogue. Feedback suggested that this session forced the attendees to engage with each other and to apply some of the knowledge from previous presenters to the hypotheticals. The breakout sessions provided a forum that increased attendee participation. Our seminar closed with comments from Judge Walter Rice and a dynamic keynote from Judge Fanon Rucker. Understandably biased, I found Judge Rice’s comments about being a “booster” of the City and the Dayton region praiseworthy. Downtown continues to see growth, new projects, and new businesses. Often touted as an affordable housing market, The City of Dayton saw a significant number of millennials purchase homes in the last year. In his keynote, Judge Rucker discussed his professional journey in the legal community and experiences that have helped shape his approach. He spoke to the importance of not just talking about how we can support diversity and inclusion but taking action to do so. He shared personal experiences of being an


African-American attorney in environments that did not create or support inclusion. A poignant part of his keynote was how his selfview changed dramatically when he started working at a firm that practiced inclusion. An inclusive environment strengthened his professional perception of himself. His commentary provided a wonderful accumulation of the information, data, and approaches shared in the morning and the dialogue around what can be done in the Dayton region. My experience has been that the Dayton legal community cares about creating an inclusive profession and a diverse workplace, but many struggle with what they can do. I would encourage you to get involved with the

Diversity Committee with the Dayton Bar Association. We would love to see you at our next meeting this fall. I also would suggest giving an objective review of your office. In what ways are you proactively creating and supporting an environment of inclusivity? In what ways does your office demonstrate that it is inclusive? Culture change takes continued effort and commitment. Every firm, courthouse, and government office has to do their part if we are serious about creating a more diverse profession. Make sure you are asking diverse candidates to dance and just not inviting them to the party.

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June 2017 Dayton Bar Briefs


daybar.org/cle 2016 Elder Law Update Seminar (video replay)

Tuesday, June 6, 2017 | 9:00-4:15pm 6.0 CLE General hrs | Seminar #1617-112 M $200 | NM $300 | PP $0 AGENDA: - Ethical Considerations in Elder Law - Defining Elder Law; Medicaid Coverage for Nursing Homes; Countable Resources and Exempt Resources - The Changing Landscape of Long Term Care Insurance - ABLE accounts - Guardianships A to Z including Rule 66 - Planning Strategies for Asset Planning Strategies for Asset Protection for our clients, avoiding estate recovery

2016 Probate Law Institute (video replay)

Tuesday, June 13, 2017 | 8:30-4:15pm 6.25 CLE General hrs | Seminar #1617-113 M $215 | NM $310 | PP $0 AGENDA: - Medicaid: The Changing Landscape: Ohio’s Conversion to an SSI State and Update on Major Changes - Is the Cloud Finally Lifting? Planning for and Administering Digital Assets in Ohio - Case Law Update on Important Cases and Issues, Montgomery County Probate Court “Hour of Power:”Learning How to E-file in Probate Court - Hot Topics in Probate and Trust Law - Conflicts of Interest: Estate Planning, Trust and Estate Administration

Juvenile Law Certification (video replay)

Thursday, June 22, 2017 | 8:30-3:45pm 6.0 CLE General hrs | Seminar #1617-119 M $215 | NM $310 | PP $0 *If you were not on the Juvenile Court appointment list by June 22, 2017, or have never been on the appointment list, you must attend this seminar for certification.

The Rules of Evidence (video replay)

Tuesday, June 27, 2017 | 1:00-4:15pm 3.0 CLE General hrs | Seminar #1617-121 M $105 | NM $150 | PP $0 Presenter: Judge Mary Kate Huffman, Mont. Cty. Common Pleas Ct. AGENDA: Join the DBA for a new seminar series for new attorneys who want an in-depth primer on the Rules of Evidence and experienced attorneys looking for a refresher on evidence. This will be the first of a two-part series reviewing and analyzing each Rule of Evidence in detail. This session will focus on the scope of the rules of evidence, the rule of completeness, judicial notice, privileges, relevance, character evidence, evidence relating to habit and routine, the admissibility of prior convictions and the admissibility of original and duplicate documents.

Criminal Law Certification (video replay)

Friday, June 16, 2017 | 8:30-4:15pm 6.0 CLE General hrs | Seminar #1617-114 M $215 | NM $310 | PP $0 AGENDA: - Introduction to the Montgomery County Common Pleas Felony Appointment List - Montgomery County “Lingo” 101 - Preliminary Hearings, Pre-Indictment Disposition, Arraignment, Bond Review - First Meeting with Client, Client Control - Discovery, Plea Negotiations, Pre-Trial Conferences - Pre-trial Motions and Hearings - Investigation & Trial Preparation - Dispositions: ILC, Diversion, CCS, Sentencing - Panel - Notice of Appeals and Fees - Probation *If you were not on the Court appointment list by June 16, 2017, or have never been on the appointment list, you must attend this seminar for certification.

Professional Conduct: The Top 10 Ethics Mistakes (video replay) Tuesday, June 20, 2017 | 1:00-4:15pm 3.0 CLE hrs Professional Conduct | Seminar #1617-120 M $105 | NM $150 | PP $0 Presenters: John Ruffolo Esq., DBA Bar Counsel Marc Tuss Esq. Denise Platfoot-Lacey, Assoc. Prof. of Externships, UDSL

House Bill 390: Revamping Ohio’s Foreclosure Process (video replay) Wednesday, June 21, 2017 | 1:00-4:15pm 3.0 CLE General hrs | Seminar #1617-118 M $105 | NM $150 | PP $0 22

Dayton Bar Briefs June 2017

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DBA Labor and Employment Law Committee’s Annual (and Amazing) CLE (video replay)

Tuesday, July 11, 2017 | 1:00-4:15pm 3.0 CLE hrs., incl. 1.0 hr of Professional Conduct | Seminar #1718-010 M $105 | NM $150 | PP $0 AGENDA: 2016 brought significant changes to the practice of labor and employment law, including how and when lawyers may communicate with employee witnesses, new limitations on and increased emphasis of the salary basis test under the Fair Labor Standards Act that make more employees eligible for overtime pay, and the legalization of medical marijuana and its effects on the workplace. What attorneys will learn: - How to ethically communicate with current and former employees and potential witnesses in employment issues - How to evaluate and apply the new salary basis limit that goes into effect December 1st - How to determine which employees are exempt from overtime pay and which must receive it in a variety of employment settings - The effects of Ohio’s news medical marijuana law and its application to a drug free workplace - How to manage and administer leave processes under the FMLA when facing employee drug and/or alcohol issues - Whether and how to reasonably accommodate an employee with drug and/or alcohol issues

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Professional Conduct: The Top 10 Ethics Mistakes (video replay) Tuesday, July 18, 2017 | 9:00-12:15pm 3.0 CLE hrs Professional Conduct | Seminar #1718-011 M $105 | NM $150 | PP $0

All You Ever Wanted to Know About Hearsay (video replay)

Tuesday, July 25, 2017 | 9:00-11:30am 2.5 CLE General hrs | Seminar #1718-012 M $105 | NM $150 | PP $0 Presenter: Judge Mary Kate Huffman, Mont. Cty. Common Pleas Ct. AGENDA: Join the DBA for a new seminar series for new attorneys who want an in-depth primer on the Rules of Evidence and experienced attorneys looking for a refresher on evidence. This will be part two of a series reviewing and analyzing each Rule of Evidence in detail.

Domestic Relations 101 (video replay) Tuesday, August 1, 2017 | 1:00-4:15pm 3.0 CLE General Hours | Seminar #1718-013 M $105 | NM $150 | PP $0

Best Practices for Handling Commercial Real Property Issues (video replay)

Tuesday, August 8, 2017 | 1:00-4:15pm 3.0 CLE General hrs | Seminar #1718-014 M $105 | NM $150 | PP $0 Presenters: Jonathan F. Hung Esq. and Andrew M. Engel Esq. AGENDA: - Commercial Lending Requirements for - Commercial Real Estate Transactions - Commercial Tax Appeals: Process and Issues - Common Commercial Lease Issues - Owner-Contract-Subcontractor Issues in Liability Claims - Update on Foreclosure Defense - Real Property Case Law Update www.daybar.org

June 2017 Dayton Bar Briefs



An Evening B

with the


eing a new lawyer is quite an adjustment – an exciting one, but a period of change nonetheless. We’re familiarizing ourselves with an entirely new (to us) world. We’re learning about the players, the courts, the rules, and the law. We’re adapting to new environments, changing schedules, and a rapid pace. And just when we feel like we’re getting our bearings, the rules change, laws are amended, and we find ourselves scrambling to keep up with the new lay of the land. At the Dayton Bar Association’s Annual Meeting last June, newly-minted President Susan Solle spoke about the value of mentorship in her career. She emphasized the importance of reaching out to new attorneys, and she committed the Dayton Bar Association to mentoring anyone in our legal community in need of help, guidance, or direction. She turned her attention and efforts to mentoring attorneys “practicing without a net.” In April, Susan and the Dayton Bar Association doubled down on their efforts and commitment to new attorneys. Young lawyers from different schools, focused in different practice areas, and representing various firms and organizations within the Miami Valley gathered together to meet and get to know the Dayton Bar Association Board and local judges from various municipal, common pleas, and federal area courts. It was an evening of orientation and mentorship. Over twenty local judges attended and provided young lawyers an opportunity ask questions and socialize in a non-adversarial setting. Over a dozen round tables were spaced around the large room in Sinclair Community College’s Ponitz Center. In pairs of two, the judges spent a few minutes moving from table to table, breaking bread, sharing libations, answering questions, and getting to know the newest practitioners in their courts. We learned about various approaches the judges took to get to the bench. We discovered certain preferences they hold for etiquette in their courtrooms. We shared stories, listened to theirs, and enjoyed personal conversations with our local bench. By all accounts, it was a pleasant evening. The practice of law is dynamic. While new lawyers experience a lot of adjustment early in their careers, adapting to change is not unique to them. Regardless of whether they are new or seasoned, all lawyers have to adjust to changing conditions throughout their careers. Thankfully, though, Dayton’s young lawyers have an overwhelming amount of support from members of the local bench and bar who are eager to guide and mentor. Dayton’s new lawyers left An Evening with the Judges with one constant – the exact same sentiment that Susan Solle left us with at last year’s Annual Meeting – we have the greatest bar association in the state and in the country. We have it all.


Dayton Bar Briefs June 2017

By Nadia A. Klarr Esq. DBA Editorial Board Taft Stettinius & Hollister LLP


Dayton Bar Association

The Association for Legal Professionals Since 1883

The Dayton Bar Association Board of Trustees and Staff request the pleasure of your company for socializing, dining and celebration in honor of Our Members at this Premier Event of the Year!

Friday June Ninth, Two Thousand Seventeen Sinclair Community College David H. Ponitz Center Building 12 444 West Third Street Hors d’oeuvres & Cocktails half after six o’clock Dinner & Meeting half after seven o’clock Please make dinner reservations for

@ $35.00_______________________$__________

Please make dinner reservations for Please make dinner reservations for

table(s) of 8 @ $280.00____________$__________ table(s) of 10 @ $350.00___________$__________

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Total: $___________

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June 2017 Dayton Bar Briefs



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coming soon to a mailbox near you! 

1. CLE-Member Rate significant savings for conveniently located programs 2. FREE Pictorial Legal Directory – Printed and Online Versions 3. FREE Subscription to Dayton Bar Briefs magazine 4. Lawyer Referral Service enables you to grow your practice 5. Personnel Placement Service exclusively for our members 6. Reduced registration fee for the Annual Bench Bar Conference 7. Public speaking opportunities 8. Networking & Congeniality at DBA sponsored professional/social events 9. Member Committees & Divisions for substantive law and service-oriented areas of focus 10. Professional growth through association with members of the legal community

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Committee Involvement is Open to All Members of the Bar! Why not join a DBA Committee today? w GROW outside of monthly meetings, DBA Committees provide opportunities for leadership, volunteering and special events. w

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2017-18 DBA Dues renewal Statements

welcome new members ATTORNEYS CRUM, Clark C. Subashi & Wildermuth Admitted to Ohio Bar: 11/13 FOSTER, Lauren D. State of Ohio Admitted to Ohio Bar: 11/11 HOUSTON, Douglas G. Houston Law Office, LLC Admitted to Ohio Bar: 11/95 IRISH, Shawn M. Innovative Technologies Corp. Admitted to Ohio Bar: 5/06 MATTISON, Gwen M. Admitted to Ohio Bar: 11/84 SCHIERLOH, Joshua R. Sebaly Shillito + Dyer Admitted to Ohio Bar: 11/04 STIEHL, Machelle Bieser Greer & Landis, LLP Admitted to Ohio Bar: 5/16 Sluk, Emily E. Gounaris Abboud, LPA Admitted to Ohio Bar: 11/07



STOP Program By Hon. Michael W. Krumholtz Montgomery Cty Common Pleas Court


n light of the ever-growing drug epidemic, courts are consistently looking for alternative sentencing options. Such alternatives led to the development of the Secure Transitional Offender Program (“STOP”) in Montgomery County. STOP is a shortterm sentencing option for drug offenders in lieu of serving 180 days in the Montgomery County Jail. After opening in July 2002 to serve the male population, the program saw significant success. As of 2012, 380 male offenders were sentenced and accepted into STOP and 368 (97%) successfully completed the program. With such great success, STOP for Women was established in October 2015. Women’s STOP is the residential drug and alcohol intervention program for female offenders which is run and operated by the Adult Probation Department. The program operates 48 beds. Over an average stay of 42 days, the STOP Women’s program residents


Dayton Bar Briefs June 2017

participate in two components: drug and alcohol intervention, and work detail. The intervention component consists of groups, classes and individual sessions which cover a wide variety of topics, such as: parenting, pregnancy and linkage to pre-natal care, physical and sexual abuse, health issues, negative relationships, and any other major life needs. These sessions utilize a behavioral modification component called “Thinking for a Change,” which has been identified by the Ohio Department of Rehabilitation and Correction as a “best practice” curriculum for adult felony offenders. Under the work detail component, the STOP for Women residents perform community service three times a week. The 2016 data shows that of the 402 offenders sentenced and accepted into Women’s STOP, 338 (84%) successfully completed the program. This means that 46,644 jail bed days were saved based on a possible 180-day sentence in lieu of

completing the STOP program. After completing the program, the women continue to be supervised by an Aftercare Probation Officer in order to complete any remaining court-ordered sanctions. With such success, Women’s STOP is a clear alternative to serving a sentence at the Montgomery County Jail. This alternative can be achieved by the: direct referral of the supervising probation officer, referral during Probation Preliminary hearings, direct referral by judges at the time of sentencing or during violation hearings, referrals by Court Services Officers during the Presentence Investigation or Intervention in Lieu of Conviction investigation processes, or by direct referrals by Drug Court. For all of these reasons, the Montgomery County Common Pleas Court is extremely proud of the STOP program and the fact that the benefits of this program are now available for women.


DBA Members, you’re invited...

DBA Night With the Dragons’ 7pm • Thursday, July 20, 2017

The DBA invites you to enjoy a night at the Dayton Dragons baseball game – for FREE!

How Do I Claim My Free Tickets? • Tickets will be distributed on July 13th beginning at 8:30am

Tickets will be available at the DBA offices; unfortunately, we cannot take ticket reservations by phone. Tickets will be distributed on a first come, first served basis and are available to members only.

• Two tickets per member

To allow as many members as possible to enjoy this benefit, we must limit each member to two tickets.

• Members are encouraged to pick up tickets in person

If a representative must be sent, the representative must have on letterhead the member’s name and signature.

• A representative may only pick up tickets for TWO members

To be equitable to all members, those in large and small firms alike, a representative may only pick up four tickets.

Do I Get Anything Else? • All ticket holders will receive a complimentary Dayton Dragons baseball cap at the game!

For more information, call the DBA at 222-7902.


June 2017 Dayton Bar Briefs



NOTICE: Montgomery County Common Pleas Court, General Division AMENDMENTS TO LOCAL RULES: • 2.23, JUDICIAL SALE OF REAL ESTATE • 2.23.1, SHERIFF’S SALE OF REAL ESTATE • 2.23.2, PRIVATE SELLING OFFICER’S (PSO) SALE OF REAL ESTATE • 2.23.3, MOTION FOR SALE OF RESIDENTIAL PROPERTY BY PROSECUTING ATTORNEY • 2.23.4, EXPEDITED FORECLOSURE ACTIONS – VACANT AND ABANDONED RESIDENTIAL PROPERTY (EMERGENCY STATUS – EFFECTIVE MAY 10, 2017) The General Division of the Montgomery County Common Pleas Court adopted amendments to Local Rules 2.23, 2.23.1, 2.23.2, 2.23.3 & 2.23.4 effective MAY 10, 2017. Pursuant to Mont. Co. C.P.R. 1.03 of the Local Rules of Practice and Procedure for the Montgomery County Court of Common Pleas and Rule 5 of the Rules of Superintendence for the Courts of Ohio, the adopted amendments are being published for a sixty-day comment period beginning Wednesday, May 10, 2017, through Monday, July 10, 2017. Comments regarding the adopted amendments to these Local Rules can be submitted via email to rulecom@montcourt.org or in writing to: James E. Dare, Court Administrator Montgomery County Common Pleas Court 41 N. Perry Street, P.O. Box 972, Dayton, OH 45422 Comments must be received by 4:30pm on Monday, July 10, 2017. *To view the amendments to the Local Rules, visit http://www.montcourt.oh.gov under “Court News and Announcements.”


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Dayton Bar Briefs June 2017




June 2017 Dayton Bar Briefs


law-related organizations Dayton Bar Association Foundation

The Dayton Bar Association Foundation is the charitable arm of our legal community. Working together, we strive to improve Our Community by Promoting Justice and Respect for the Law. Every gift, large or small, makes a difference in the lives of the people of this community. The Foundation is a great place to create a memorial for a loved one, pursue your own philanthropic goals or leave a lasting legacy to this community.

To obtain more information about the Dayton Bar Association Foundation

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

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

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

As of January 1, 2014 every 6 hours of pro bono service through an approved pro bono provider will give you 1 hour of CLE credit to a maximum of 6 hours of CLE credit (36 hours of pro bono). The Greater Dayton Volunteer Lawyers Project will send your hours to the Ohio Supreme Court and notify you of the same. 32

Dayton Bar Briefs June 2017


Thurgood Marshall Law Society How to Contact TMLS: President Robert L. Gresham Esq. 937-222-7477 rgresham@ yourohiolegalhelp.com

Vice-President Mag. Gerald Parker Jr. 937-496-7682 gparker@mcjcohio.org

Secretary Natasha L. Newberry Esq. 937-225-4253 newberryn@mcohio.org

Treasurer Ciara S. Parks Esq. 937-225-5768 parksc@mcohio.org

Send any email questions or concerns regarding TMLS to: thurgoodmarshalllawsocietydayton@yahoo.com

JOIN US Groups: Thurgood Marshall Law SocietyDayton


LIKE US Thurgood Marshall Law SocietyDayton

University of Dayton School of Law

March 2017 Dayton Bar Briefs


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 a promotion or 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. We also request a current, high-resolution, directory-style photo to accompany your announcement. These monthly accouncements are printed as space is available. Send to DBA Publications Manager, Shayla M. Eggleton: publications@daybar.org. Send your address changes to Carol Blevins: cblevins@daybar.iorg

Vice-Chair of FOCAS Ministries/Lord’s Gym Board of Trustees, member of the CET Planned Giving Committee.

Taft Stettinius & Hollister, LLP announced ROBERT (BOB) DUNLEVEY has joined the firm’s Dayton office as Senior Counsel in the Labor and Employment Practice. Bob DUNLEVEY joins the firm from Dunlevey, Mahan and Furry where he was founding principal. Bob will continue to focus his practice on assisting business owners with employment related issues including wage- hour compliance, wrongful discharge defense and regulatory compliance, collective bargaining, OSHA, Workers Compensation, EEOC and NLRB proceedings and federal and state court litigation. Bob is an OSBA Board Certified Specialist in Labor and Employment Law.

CARL D. SHERRETS, owner of Sherrets Law Offices, LLC in Kettering, has once again been selected for inclusion in Ohio 2017 Super Lawyers. This is Carl’s sixth SHERRETS year in a row to be recognized as a Super Lawyer in Ohio Super Lawyers magazine. Carl is an OSBA Board Certified Estate Planning & Probate Specialist as well as being an Adjunct Professor at the University of Dayton School of Law teaching Wills, Trusts and Estates for the past eleven years.

The Dayton Chamber awarded ATTORNEY JENNIFER HANN HARRISON, their prestigious “Volunteer of the Year Award” during the Chamber’s Annual meeting.

ERIN E. RHINEHART, Partner at Faruki Ireland Cox Rhinehart & Dusing, P.L.L., has been awarded the Ohio Women’s Bar Association’s President’s Choice Award.


The Board of Directors of LCNB Corp. (LCNB) and its subsidiary, LCNB National Bank, announced that MICHAEL R. MILLER will replace Leroy F. McKay as the MILLER Executive Vice President and Trust Department Head of LCNB and LCNB National Bank. Mr. Miller joins LCNB with a highly respected and well-known background in fiduciary services that stretches over 33 years. He was formerly a partner with the law firm of Graydon Head & Ritchey LLP. Mr. Miller is an OSBA Certified Specialist in Estate Planning, Trust and Probate Law and a Certified Financial Planner. Mr. Miller contributes to the community through serving as 34

Dayton Bar Briefs June 2017


Pickrel, Schaeffer & Ebeling, Co., LPA is pleased to announce that associate in the Litigation Practice Group, MICHELLE T. SUNDGAARD, has been nominated to the SUNGAARD Dayton Children’s Women’s Board. Formed in 1964, the Dayton Children’s Women’s Board is a volunteer organization of approximately 40 women representing women from counties throughout the Dayton region from various professional and community volunteer backgrounds. The women’s board administers the HELP Fund, an ongoing program that supports various projects at Dayton Children’s. Their primary fundraising project is the biennial CHA-CHA dinner

and silent auction. The Women’s Board has raised over $3.3 million dollars for different hospital functions, to include the Pediatric Cancer Care and Blood Disorders Endowment, the NICU, the ER, and the ICU.

Judge Mary Kate Huffman & Tom Whelley II. THOMAS P. WHELLEY II., a partner in Dinsmore & Shohl LLP’s Dayton office, was recently awarded the Montgomery County General Division's Mediation Service Award for 2017 for his significant dedication to the court’s mediation process. Due in large part to the amount of cases he mediated and resolved in 2016. He received high marks in peer evaluations’, and among other accolades. He has litigated a variety of complex business cases, ranging from shareholder disputes to accounting malpractice to broker dealer actions. He also has a wealth of experience in product liability matters, having tried a variety of chemical exposure cases, as well as cases for industrial and marine products.

advertiser index ComDoc Inc..............................................21 Eikenbary Trust ......................................35 Elizabeth Diamond Company .............17 Ferneding Insurance...............................7 J. Steve Justice - Mediations................15 Johnson Investment Council................31 LCNB Bank................................................19 National Processing Solutions...........28 OBLIC..........................................back cover Park-N-Go.................................................9 R.L. Emmons & Associates.....................7 Rogers McNay Insurance......................19 Trisha M. Duff - Mediations...................19



For info concerning Classified Ad and Display Ad Space in the Dayton Bar Briefs or any other DBA Publication, contact DBA Publications Manager, Shayla M. Eggleton: publications@ daybar.org or 937.222.7902. Discount Rates available for consecutive and/or combined Online + Display + Classified advertising!

EXPERIENCED DIVORCE LAWYER SOUGHT Holzfaster, Cecil, McKnight & Mues has an opening for a lawyer with preferably 3+ years experience in Domestic Relations work. Some present book of business is a plus. Please send resume to: Chip Mues at lawdayton@ gmail.com.


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 MUNICIPAL PROSECUTOR The City of Springfield seeks a full-time Assistant Prosecutor. Candidates must have excellent communication skills, and discplined work habits. Candidates must have the ability to relate effectively to defendants, other attorneys, judges, law enforcememnt and court staff. Salary range: $49,816 to $63,565. Excellent benefits and OPERS. Send resume by Friday, June 16, 2017 to: Law Director at PROSECUTOR@ SPRINGFIELDOHIO.GOV Equal Opportunity Employer. OFFICE AVAILABLE Downtown Dayton office with great view available. Reasonable overhead. If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 224-1427.


contact Shayla about DBA Advertising opportunities: publications@daybar.org 937.222.7902 www.daybar.org

June 2017 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

June 2017 small file  

June 2017 small file