DBA Board of Trustees
2023-2024
Anne P. Keeton
President
Hon. MicHAel J. newMAn
First Vice President
JAMes H. Greer
Second Vice President
erin e. rHineHArt
Secretary
JAMAr t. KinG
Treasurer Jennifer l. BroGAn
Member–at–Large
lAuren K.
Member–at–Large
erin B.
Member–at–Large
BriAn l.
Member–at–Large
Hon.
JoHn
Jennifer
By Erin E. Rhinehart, Secretary | Faruki PLL Does
By
Susan D. Solle | Montgomery County Common Pleas Court
By Marcella McHenry | Pickrel Schaeffer & Ebeling Co., LPA
By
By Nathaniel M. Fouch | Supreme Court of Ohio
By
By
Provide annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.
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Bruns, Connell, Vollmar & Armstrong, LLC bcvalaw.com
Bruns, Connell, Vollmar & Armstrong, LLC (BCVA Law) works hard to support our clients for their long-term success. We have extensive experience representing businesses and individuals in a variety of matters, including business disputes, small business and entrepreneurial needs, insurance disputes, brewery, distillery, and liquor permit holder needs, transportation law, employment law, professional liability defense and a variety of other litigation matters. We value our relationships and take pride in delivering a high level of service at a cost based on the client’s needs and the complexity of the problem. Our core values are to work efficiently and effectively.
Our Business is Supporting Yours®
FARUKI+ ficlaw.com
FARUKI+ is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.
Thompson Hine LLP thompsonhine.com
Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience.” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.
By Erin E. Rhinehart Co-Managing Partner, Faruki PLL DBA Board Secretary erhinehart@ficlaw.com
As always, civility is a hot button topic in the legal profession, perhaps because of the rampant lack of it that pervades society on the news and social media. Here, in our legal community, we tout collegiality, kindness, and professionalism as cornerstones of everyday practice. The Dayton Bar Association's influence is among the primary reasons that these cornerstones have not only endured – but thrived – for more than a century. (The DBA started in 1883.) For this to continue, however, each generation of lawyers must step up; so that this community is cultivated, nurtured, and not forgotten or taken for granted. So, my message this month is really an ask – an ask that you show kindness to others and mentor others to do the same.
How? Glad you asked. Communities like ours take work; they are not inevitable. Indeed, a community, including the DBA, is only as good as its people. It is what we do together as DBA members that matters. I write to encourage each of you to do your part; to join the legacy of lawyers before you by bringing someone along. Invite someone new to the practice; to the area; or who you have not seen in a while to an upcoming DBA event (or ask them why they haven't been involved – we can always improve). I, like so many of you, was fortunate to have several members of the DBA "bring me along" – encouraging my participation, involvement, and leadership throughout the various facets of the DBA. Our bar is strong because of our members; we need to ensure that we don't forget how we got here and how the bar will continue to provide for the next generations (yes, plural) of Dayton lawyers.
Here are a couple ideas to get started:
~Empower younger attorneys; newer attorneys; attorneys you don't often see at DBA events to joint you at an upcoming DBA committee meeting, symposium, Chancery lunch, or social event. It's amazing what a smile and a thoughtful invitation can do for someone – personally and professionally.
~Think about one way in which you can improve the DBA and share it with a Trustee. The DBA Board of Trustees is constantly discussing what the DBA can do for its members; how it can improve and show up for our lawyers – regardless of practice area or experience level. Your input is valued!
Pick one and let me know what you did. Or, if you are new to the DBA and unsure where to start, give me a call, send me an email, or introduce yourself. The DBA understands that we are constantly battling competing priorities; managing work and life; and lamenting over where we fall short. Community, involvement, comradery – these are important, though. Make a commitment to yourself and your colleagues to make time this month – no matter how small it may seem – because it matters.
In accordance with Section 2, Article III of the Dayton Bar Association Code of Regulations, Regular Members shall have the right to nominate another candidate or candidates for any elected office for which vacancies exist to be filled at the Annual Meeting not later than noon on the 15th day of the month following the publication of the nominee’s names.
One must deliver to the Association office, a nominating petition signed by at least twenty-five (25) regular (voting) members of the Association whose dues for the current fiscal year are paid.
Members nominated by the Nominating Committee and approved by the Board of Trustees for vacancies that will exist as of July 1, 2024 are:
• First Vice President and Treasurer
First Vice President:
Jeff Cox Esq. Faruki PLL
110 N. Main St., Ste. 1600 Dayton, OH 45402-3704 (937) 227-3700 jcox@ficlaw.com
Treasurer:
Victoria L. Nilles Esq.
Montgomery Cty Prosecutor's Ofc
301 W. Third St., 5th Fl Dayton, OH 45402-1446 (937) 496-7910 vnilles@sbcglobal.net
Elections will take place at the DBA Annual Meeting on Thursday, May 16, 2024.
February 7: Chancery Club Luncheon
Beth Whelley and the history of the Conservancy District.
January 17: Criminal Law Section Meeting
"Removing Barriers to ReEntry" with Judge Angelina Jackson.
January 26: Mock Trial Competition
DBA President, Anne Keeton addressing crowd of students.
January 25: Corporate Counsel Reception & Meeting
Sponsored by Coolidge Wall Co., LPA, Dan Gentry speaks on the topic "Ethical Responsibity in Corporate Litigation".
Anyone in the corporate law world has undoubtedly heard of the CTA by now. The Corporate Transparency Act (“CTA”) went into effect on January 1, 2024. The Act was passed by Congress as a way to nationally combat corrupt business practices, fraud, money laundering, and other financial crimes. This law will affect certain companies, who will now be required to file initial reports and provide a list of detailed ownership information with the with a bureau of the government, namely, the Financial Crimes Enforcement Network (FinCEN).
This new law is not one any business owner should overlook. Failure to report to the FinCEN within the required timelines or knowingly providing fraudulent information comes with harsh penalties, both civil and criminal. This includes a fine of $500 a day until the violation is fixed, or even criminal penalties including imprisonment for up to two years and a $10,000.00 fine.
In order to comply with this new federal law, the Ohio Secretary of State published a set of guidelines to direct compliance with the Act. Interestingly, the Secretary of State website emphasized Ohio Secretary of State Frank LaRose’s opposition to the CTA. Secretary LaRose believes the CTA requirements are unnecessary regulations on business owners. Other lawyers have also criticized the CTA for being overly complicated and full of several exceptions that are hard to understand.
Whether they believe the CTA is the solution to cracking down on corrupt financial business practices or a burdensome barrier on small business owners, legal practitioners need to be aware of the new laws. Business attorneys need to know what entities will be required to report ownership information so they can make certain corporate/LLC clients comply with these regulations.
However, this responsibility should not be limited to only attorneys responsible for the day-today legal aspects of their clients’ companies. For instance, a litigation attorney
representing a small family-owned LLC in an eviction would find it valuable to understand the CTA as a way to go the extra mile with her clients. Warning her clients on the reporting requirements will not only protect them from the harsh penalties associated with noncompliance, but also be a potential business opportunity for the attorney’s firm to oversee the filings of the reports on behalf of these clients.
So, who exactly does the CTA apply to? The CTA classifies the companies required to report ownership information to FinCEN as reporting companies. All companies that are required to file with the Secretary of State are considered reporting companies, unless an exemption applies. There are exactly twenty-three exemptions. The most notable exemptions are “large operating companies” which are entities who operate in a physical address of the U.S. that employ more than twenty full-time U.S. employees and have filed an income tax return showing more than $5 million in gross revenue or sales. Other exemptions include entities that are already regulated by other government agencies such as the SEC as well as certain tax-exempt entities, insurance companies, and certain accounting firms. The full list of these exceptions is provided by FinCEN online.
An astute practitioner should be aware of certain nuances that exist within these exemptions. For example, a tax-exempt entity created or registered before 2024 that loses its status has 180 days from the date the IRS took away the designation to file with the CTA. This applies even if the entity applies to reinstate the status but the IRS has not granted the exempt status again within the 180-day period. A lawyer representing several nonprofit organizations should be aware of this subtle distinction to prevent entities about to lose their non-profit status from facing penalties for failure to report.
After determining that an entity falls under the CTA, the next step is to know what information is to be disclosed. Report-
By Marcella McHenry, Esq. Pickrel, Schaeffer, and Ebeling Co., LPA mmchenry@pselaw.com
ing companies must file a report that includes the legal name of the company, any trade names, the company’s address of its principal place of business as well as beneficial owner information. A beneficial owner is defined as either an individual who exercises substantial control of the company, or owns or controls at least twenty-five percent of the company’s ownership. The ownership information required from a beneficial owner include their name, date of birth, driver’s license/passport number, and a photo of the actual driver’s license/passport.
Business owners trying to figure out which of the people that run their company qualifies as beneficial owners will likely ask their attorneys the meaning of these terms. Their attorney should remember to tell them the basics. An individual can be deemed to exert substantial control if he or she meets any of the following: being a senior officer (think titles such as CEO or President), having the authority to remove a senior officer, being a major decision-maker for the business, or exerting any other form of substantial control of the company. Owning or controlling at least twenty-five percent of the company’s ownership interest incudes not only owning equity, stock, or voting rights but can also mean having contracts or other legal instruments that show ownership. There are no limits on how many beneficial owners a company can have.
Other important requirements that lawyers should remember from the CTA is that reporting companies created on or after January 1, 2024 are required to report company applicant information. This means that individuals involved in filing or registering a reporting company must report certain information to FinCEN. Lawyers that supervise a filing, as well as paralegals and legal assistants that are often the ones actually filing the documents to form companies on behalf of clients, must report their information to FinCEN. For individuals that do a lot of filings, they can get a FinCEN number and use this identifying number when creating the company.
The above is just a brief summary of these laws. To learn more, anyone can either visit the FinCEN websites or the Ohio Secretary of State. It is strongly encouraged every practitioner take some time to visit these websites. As an advocate for their clients, attorneys will be expected to understand the CTA and know when an exemption does or does not apply. They should also be aware of specific nuances in the law to further save their clients from the rather severe penalties associated with noncompliance.
842–A E. Franklin Street Dayton, Ohio 45459
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The DBA Board of Trustees have recently approved the following for DBA Membership:
Benjamin Asebrook Defiance, OH
Christopher Butler
Thompson, Dunlap & Heydinger Ltd.
Trisha Chaterjee
Flanagan, Lieberman and Rambo
San-Hui Chi
Dinsmore & Shohl LLP
Dante Dandrea Cross Law Office
Caitlyn A. Doles
Dinsmore & Shohl
Walter Gibson
Thompson, Dunlap & Heydinger Ltd.
Aaron Gonzalez
Burdge Law Office, Co. LPA
Stephen Harkleroad
Craig T. Matthew & Associates, LPA
Kurt Horner LexisNexis
William H. Lamb Ohio Attorney General
Kyle J. Martin
Sebaly Shillito & Dyer
Allison Miller Montgomery County Prosecutor's Ofc
Robert J. Mumma Frost Brown Todd
Madison Myers Greenville, OH
Nicholas Oehler
Thompson, Dunlap & Heydinger Ltd.
Daniel R. Palmer Jr. Wright State University
Gregory J. Parker City of Dayton
Michael V. Porter
The Law Office of Michael V. Porter, LLC
Brad C. Steel
Wright State University, Student Legal Services
LAW STUDENTS:
Leah Craig, UDSL
Gabriel Ernest, UDSL
PARALEGAL STUDENT:
Emily Moon, Sinclair
LEGAL ADMINS:
Matthew K. Grubb
Legal Process Servers Express
Shannon Flood Park National Bank
As members of a profession devoted to social justice, the public often looks to lawyers to volunteer and provide leadership in serving those in need, including those without the means or resources to do so. Communities certainly look to lawyers to serve those needs within the legal profession. Those expectations, however, also extend beyond the delivery of legal services and to providing leadership in many other areas. The Dayton Bar Association’s Barrister of the Month, Charles A. “Tad” Claypool, has met and exceeded the public’s calling for such leadership in his 50-year legal career, both within the legal profession and beyond.
Raised in the Dayton area, Charles knew by the time he was a seventh grader that he wanted to be a lawyer. Perhaps Charles became interested in pursuing a legal career because he was intrigued by politics at that young age, as he told me. But perhaps his interest in the profession stemmed from the fact that being a lawyer provided him an opportunity to help others, a value passed on to Charles from his father, Charles J. Claypool, who, between 1979 and 1980, served as the head Shriner in North America (a position also known as the Imperial Potentate). In that position, Charles’ father oversaw the internationally renowned Shriner’s Hospitals for Children – a network of over twenty children’s hospitals throughout the United States devoted to providing free medical services for children in need of medical care.
Charles would ultimately follow in his father’s footsteps, devoting much of his life to the Shriners organization. But before that, he graduated from Fairmont High School in Kettering and then attended Ohio University, where he studied government. During his freshman year at OU, friends set Charles up on a blind date where he met his now wife of 52 years, Kay – who was also studying at OU and, coincidentally, also from Kettering. Charles and Kay have two adult children, Matthew and Aimee, who live in the Greater Dayton area.
After earning his undergraduate degree from OU in 1970, Charles attended the University of Cincinnati College of Law, where he graduated in 1973. Upon entering the legal profession, Charles returned to the Miami Valley, first working as a law clerk with the General Division of the Montgomery County Court of Common Pleas, where he worked parttime while awaiting his assignment for service in the United States Army. At the Common Pleas Court, Charles quickly became acquainted with the members of the Dayton legal community and discovered its unique collegiality, a quality he continues to appreciate today. His position with the Court also allowed him the opportunity to work for and learn from the Hon. Carl D. Kessler and the Hon. Walter H. Rice.
Ultimately, Charles was called to service in the United States Army shortly after beginning his legal career. Following his service, he returned to the Dayton area and the legal profession, first sharing office space in Miamisburg before returning to downtown Dayton and setting up his
general law practice. That general law practice continues today, where Charles represents clients dealing with issues concerning personal injury, estate planning, juvenile custody, and more. Just last fall, the Dayton Bar Association honored him for serving the Dayton legal community for 50 years during its annual “50 Year Honoree Luncheon.” Charles takes pride in having helped his clients throughout that time and leading many through tough and challenging moments.
But among Charles’ most fulfilling achievements – outside of his family – are his decades of service to the Shriners organization. In 1990, Charles led the local Antioch Shrine as its Potentate, just like his father did in 1968.1 In addition, Charles served the Shriners internationally as a board member and trustee for over twenty years, ultimately culminating in leading the entire Shriners international organization (the Shrine of North America) and the Shriners Hospitals for Children as Imperial Potentate from 2002 to 2003. During his decades of service to the organization, Charles has traveled the country on its behalf and seen the Shriners Hospitals for Children’s remarkable impact on children and families. Charles takes tremendous pride in his and his family’s legacy serving an organization that, in its 100-plusyear history, has helped over 1.3 million children in need of medical care throughout North America.
Charles A. “Tad” Claypool’s 50-year career epitomizes a lawyer answering the public’s call to action to help those in need. Those years of service exemplify the tremendous impact lawyers have, not only within the profession but beyond.
By Michael Rhinehart Esq. Sinclair Community College michael.rhinehart@sinclair.edu
ENDNOTES:
1 ABOUT ANTIOCH SHRINE, DAYTON, OHIO ANTIOCH SHRINE, https://antiochshrine. com/about-us/ (last visited Jan. 31. 2024).
Interested in Section participation? It's never too late! Let the DBA help keep you up to speed on the latest issues impacting your practice and provide you with the tools necessary for professional growth. Participation in our various practice area groups is complimentary with your DBA Membership! Scan to learn more!
These sections hold regular meetings from September through May to discuss current issues and developments in the named field of practice. Meetings may consist of a guest speaker, CLE presentation or case law updates.
• Appellate Court Practice
• Civil Trial / ADR
• Corporate Counsel
• Criminal Law
• Domestic Relations
• Employment Law
• Estate Planning, Trust & Probate Law
• Federal Practice
• Juvenile Law
• Paralegal
• Real Property/Environmental Law
• Workers' Compensation/Social Security
These sections operate as steering committees for a wide variety of member services and special interests. They do not hold regular meetings. To get involved, visit daybar.org/sections to reach the DBA Liaison.
• Bar Exam & Qualifications
• Bar Briefs Editorial Board
• Bench Bar Committee
• Diversity, Equity & Inclusion
• Ethics, Certified Grievance & Fee Disputes
• Health & Wellness
• NEW! LGBT+
• Member Services
• New Lawyers Division
• Social Justice Committee
NEW! UD Law Student Division
• Women in the Law
By The Honorable Susan Solle Montgomery County Common Pleas Court - Gen Div susan.solle@montcourt.oh.gov
Susan Gwynne, a 55-year-old first time felony offender, was sentenced to 65 years in prison for stealing items from nursing home and assisted living residents over an eight year span. She was indicted on over 100 counts, including both felonies and misdemeanors, but she pled to less than half of those counts. The Delaware County Common Pleas Court ordered consecutive prison sentences for each felony, totaling 65 years.
Tommy Glover, a 23-year-old first time felony offender, was sentenced to 60 years following his convictions for six armed robberies and five kidnappings, with gun specifications, where he did not physically harm his victims. On five separate occasions, Glover held individuals at gun point and either forced them to drive to ATMs, drive around, or stole items from them. He turned down a plea deal to serve 15 years, and was convicted by a jury on all counts. At sentencing, the State recommended 20-25 years. The Court ran all of the prison sentences for the aggravated robbery convictions consecutively and the kidnapping convictions concurrent, for a total of 60 years.
These cases addressed, at least to some degree, whether a trial court, when determining whether and how many sentences should be served consecutively, should or must consider the aggregate sentence in its analysis.
Ohio law provides that “concurrent sentences are the default and consecutive sentences are the exception.”1 The Supreme Court has been clear that “consecutive sentences are reserved for the worst offenses and offenders.”2 For a trial court to order consecutive sentences, it must find the following:
[1] the consecutive service is necessary to protect the public from future crime or to punish the offender and [2] that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and [3] if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.3
Clear as mud, right? The law provides no additional guidance to trial courts.
Gwynne’s sentence was initially appealed to the Fifth District where it was reduced to 15 years, and the Supreme Court reversed, finding that the court of appeals relied incorrectly on the general considerations for felony sentencing.4 On remand, the Fifth District reluctantly upheld the 65-year sentence, essentially finding they had no choice.5
The Supreme Court again took the case on discretionary appeal and a divided court held “based on the language of R.C. 2929.14(C)(4), the consecutive sentence findings are not simply threshold findings that, once made, permit any amount of consecutively stacked individual sentences. Rather, these findings must be made in consideration of the aggregate term to be imposed.”6 Essentially, the Court held trial courts must consider all of the factors for each sentence it decides to run consecutively, and once it can no longer satisfy the elements of R.C. 2929.14(C) (4), it must stop stacking.7 The dissent disagreed.8
Following an election and change in composition of the Court, a motion for reconsideration was heard9 and the Supreme Court reversed itself again, mostly focusing on the standard of review.10 This time, an again divided Court held that the Fifth District “could not clearly and convincingly find that the record did not support the trial court’s consecutive sentence findings” and upheld the original 65-year sentence.11 The majority of the Gwynne 3 Court did not make an express finding whether trial courts should
consider the aggregate sentence in determining consecutive sentences, but addressed it in dicta, basically saying it is not required.12
Justice Stewart’s dissenting opinion, similar to the Gwynne 2 majority opinion, contended that the statutory scheme of R.C. 2929.14(C) (4) requires trial courts “to consider each individual prison term that it chooses to run consecutively to another and, by extension, the aggregate prison term that results ***.”13 Nonetheless, the 65-year sentence remains.
The Glover case now places the issue squarely before the Supreme Court. In Glover’s appeal to the First District, the court found (after Gwynne 2 and before Gwynne 3) that the record did not clearly and convincingly support the trial court’s findings under R.C. 2929.14(C)(4).14 Applying the holding in Gwynne 2, the appellate court found “a 60-year sentence – akin to a life sentence – was disproportionate to Glover’s criminal history, danger he posed to the public, and offenses,” and the court reduced his sentence to 25 years.15
The Glover case is being argued (at the time you are reading this, was argued) before the Supreme Court on February 7. The State contends courts are not required to focus on the aggregate sentence when considering the consecutive sentencing factors, similar to Gwynne 2 dissent and Gwynne 3 majority. Not surprisingly, Glover maintains the opposite, consistent with Gwynne 2 majority and Gwynne 3 dissent.
So I pose this question to all of you – do you think justice requires a trial court to consider whether the aggregate sentence is proportionate to the seriousness of the defendant’s conduct and the danger they pose to the public?
1State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 21.
2State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 21.
3(emphasis added) R.C. 2929.14(C)(4).
4State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169 (Gwynne 1 – my numbering, not the Court’s. Because there are so many appellate cases here, I am only numbering the relevant Supreme Court cases)
5State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio-7570.
6State v. Gwynne, __ Ohio St.3d __, 2022-Ohio-4607, __ N.E.3d __ (Dec. 23, 2022), ¶ 1 (Gwynne 2). The Court also held the appellate court’s standard to review consecutive sentence findings was de novo. Id.
7 “Stacking is a term used to refer to consecutive prison sentences. Defense counsel in Glover referred to this as a “recursive” approach in its brief to the Supreme Court. Merit Brief of Appellee Tommy Glover, Ohio Supreme Court Case No. 2023-0654 (Dec. 12, 2023).
8Id. at ¶¶ 32-75 (also finding the majority decided issues not properly before the Court).
9A topic for a whole separate article…
10State v. Gwynne, __ Ohio St.3d __, 2023-Ohio-3851, __ N.E.3d __ (Oct. 25, 2023) (Gwynne 3)
11Id. at ¶ 26.
12Id. at ¶¶19-24.
13Id. at ¶ 51.
14State v. Glover, 1st Dist. Hamilton No. C-220088, 2023Ohio-1153.
15Id. at ¶ 102.
Do you know someone in the Greater Dayton area who serves our community in a special way?
Each May at the Chancery Club luncheon, the DBA honors a local citizen who has rendered outstanding service to the community with the Liberty Bell Award.
The Liberty Bell Award represents the DBA’s highest honor recognizing a community partner who assist the legal profession in providing service throughout the region. Any individual, other than a lawyer or judge may be considered for the award. Professionals working in education, business, the sciences, communications, labor, government, religious profession, and youth organizations are eligible for nomination.
Past Winners Include:
2017 – Bill Wheeler, DBA Executive Director
2018 – Michael Newson, Dept. of Jobs & Family Services Child Enforcement Agency
2019 – Rosalie Makridis, Life Essentials
2023 – Jacqueline Gazda, Dayton Metro Library
Nominations can be emailed to Kate Bertke, kbertke@daybar.org by April 4th. Please include: (1) Nominee’s Bio (2) A Statement Supporting Your Nomination.
Ms. Gazda was honored because of her work helping identifying a community-wide need for legal assistance for Driver's License Reinstatement and Record-Sealing Clinics.
By Nathaniel M. Fouch Esq. Chair, Editorial Board Supreme Court of Ohio nathaniel.fouch@sc.ohio.gov
Joe Barton is a proud son of Dayton, and one of whom Dayton should be proud. Born and raised in Kettering, he returned home to begin his practice after earning his B.A. at Miami University and J.D. at the Ohio State University Moritz College of Law. Following stints as an associate in the business litigation practice groups at Thompson Hine and Faruki, Joe now serves as Litigation Counsel for EssilorLuxottica. Through his studies, practice, and civic engagement, Joe has shown himself to be the beau ideal of an attorney—a reflective, jovial, quick-witted man of the world with a deep passion for service and for his community. He is skilled in the courtroom and at the negotiating table, generous with his time and talents, and dedicated to the betterment of Dayton.
After majoring in Political Science at Miami, Joe worked as a campus organizer for a year, gaining both confidence and an appreciation for long hours. When he started law school the following year, he thrived—in his first year receiving the Moritz Leadership Award in recognition of his demonstrated leadership outside the classroom. This success was matched in the classroom, as Joe served as Articles Editor for the Ohio State Law Journal and a member of the moot court mediation team, and ultimately graduated magna cum laude and Order of the Coif. His law school experience also gave a hint of what was to come, as he was recognized as a Public Service Fellow for his 150+ hours of pro bono work. Characteristic of his intellectual curiosity, Joe embraced the chance to acquire diverse work experience during law school, clerking for a firm, the Department of Homeland Security, and, in the highlight of his law school experience, at the Ohio Public Defender Death Penalty Division.
After graduation, Joe worked as an associate at Thompson Hine for two and a half years before transitioning to Faruki for a year. In both roles, he handled a variety of business litigation
matters, ranging from complex contract disputes to financial services litigation to business torts. Perhaps most exciting was his involvement in multimillion dollar complex international disputes, but Joe—with his amiable manner and person-focused disposition—also came to appreciate taking
depositions. Both positions prepared him well for his current role at Luxottica, where he is able to participate in the “most fun parts” of litigation without his “less favorite parts.” He manages litigation at a higher level, overseeing a large number of cases and focusing on the big picture.
About six months after Joe started at Thompson Hine, the Covid-19 shutdowns began, with a corresponding decrease in business. Given the opportunity by the firm, Joe threw whatever extra time he had into completing hundreds of hours of pro bono work for Thompson Hine’s eviction clinic and for area nonprofits through Pro Bono Partnership of Ohio. In the former, he proved rather skilled in pulling “wins” in landlord-tenant cases, and was “nearly” undefeated in summary judgment motion practice. He continued his service as he transitioned roles and companies, now assisting with adoptions through the Legal Aid Society of Greater Cincinnati’s Volunteer Lawyers Project and Special Immigrant Juvenile Status cases through Catholic Charities of Southwest Ohio, as well as the Greater Dayton Volunteer Lawyers Project. Joe has been justly recognized for his prodigious pro bono work by the Ohio State Bar Foundation, receiving its Community Service Award for Attorneys 40 and Under in 2022.
Joe’s community engagement is not limited to applying his legal skills. He also sits on the board of Day of Caring 365, a local nonprofit serving the Miami Valley through support to the Dayton Foodbank, homelessness initiatives, and a hygiene product pantry. In conjunction with partner agencies, it distributes basic necessities like toothpaste and shampoo which cannot be purchased using Ohio Electronic Benefits Transfer cards. Joe recently helped the organization change its legal name. And he has served professionally too, recently concluding a term as Membership Chair for the Steering Committee for Generation Dayton, an initiative of the Dayton Chamber of Commerce dedicated to connecting and developing young professionals in the Miami Valley. He has also been a chairman of the “Justice on Tap” fundraiser for Advocates for Basic Legal Equality, is a member of the Spark Kettering Strategic Planning Committee, and is a longstanding mentor
to local law students at the University of Dayton. In each role, he has represented the bar well to his nonattorney peers.
Perhaps none of his other community involvement compares with his appreciation of the Dayton Bar Association. Joe describes his “charmed experience” of the DBA, noting that soon after he began attending events, he suddenly felt part of the city, and part of the profession. He ascribes business referrals, assistance, and lasting friendship to his involvement with the DBA, which he describes as “fun.” Joe was a member of the Leadership Development Class of 2021 and has contributed to Bar Briefs. His recognition now as a Rising Star is both an acknowledgement of his contribution to our organization, community, and profession, and a marker of the greater leadership roles and involvement he will undoubtedly continue to engage in in the years to come.
Joe lives a full life. In addition to his work and service, he makes time for playing music, cycling, and gardening. He and his wife Julia also enjoy both traveling and staying at home with their three cats. Perhaps most importantly, Joe and Julia try to spend as much time as possible with family and friends. Reflecting on the way he spends his time, Joe has said he always tries to be the guy that says ‘yes’ when asked to serve, and has found that the time will make itself available. That has certainly been the case so far, and for all of our sakes, long may it continue to be.
The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers underthe age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance.
Individual loans, are available up to $6,000 at 4% interest, while grants up to $4,000 are also available
To ApplY: Jennifer Otchy, DBA Chief Executive Officer
Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org
Montgomery County Juvenile Court Certification
Tuesday, April 2 | 8:30-4:15pm | Seminar Room
6.25 Gen or 6.25 NLT Gen Hrs
Who should attend: Attorneys interested in being added to the Montgomery County Juvenile Court appointed counsel list, and any attorneys who might benefit from learning about juvenile representation.
AGENDA:
8:30-8:45am Welcome
• Judge Helen Wallace, Montgomery County Juvenile Court
8:45-9:45am Before Charges Go Official (1.0 Gen Hr)
Intervention Center, Satellite Courts, and Disproportionate Minority Contact Diversion Program
• Tiffany Dulin, MCJC Intervention Center Director
• Dorian Davis, MCJC Intervention Center
9:45-11:00am Charges Have Been Filed: Legal Practice and Adjudication Issues (1.25 Gen Hr)
• Judge Julie Bruns, Montgomery County Juvenile Court
• Gina Feller, Chief Magistrate, Montgomery County Juvenile Court
• Nikole Xarhoulacos, Montgomery County Public Defender's Office
11:15-12:30pm Post Adjudication and Disposition, Probation, Sealing, Expungement of Juvenile Records (1.25 Gen Hr)
• Tricia Lucido, MCJC Director of Probation
• Matt Pack, MCJC Intervention Center
• Brad Baldwin, Attorney
1:15-3:00pm Legal Practice in Custody Court/Working with Children Services (1.75 Gen Hr)
• Kim McGuirk, MCJC Volunteer Services Program
• Kathleen Lenski, Magistrate, Montgomery County Juvenile Court
• Jennie Cole, Montgomery County Children Services
• Michelle Grodner, Montgomery County Prosecutor's Office
• John Kolberg, Magistrate, Montgomery County Juvenile Court
3:15-4:15pm Attorney Billing, Parentage and MTI Docket/Child Support (1.0 Gen Hr)
• Michelle Gross, Judicial Assistant, Judge Bruns, MCJC
• Tamara Mannix, Administrative Secretary
• Eric Shafer & Gina Feller, MCJC
Thank you Wilmerhale for your lunch sponsorship!
Preparing for the Use of Technology in Litigation
Tuesday, April 23 | 9-11:30am | WilmerHale | 2.5 Gen Hrs
For attorneys with clients who use technology to communicate personally and/or professionally. Attorneys who represent companies with a large digital footprint.
• Joanna Garcia, Discovery Attorney Manager, WilmerHale
• Zachary Heck, Partner, Taft Stettinius & Hollister LLP
• Jeffrey Cox, Partner, Faruki PLL
You can sponsor this event!
EARLY BIRD RATE ENDS 3/26! Full agenda pg 18
Annual Domestic Relations Institute
Friday, April 26 | 9-4pm | Sinclair Conference Center
4.0 Gen + 1.5 PC Hrs *OSBA Specialty Credit Approved!
Join us for this year's annual DR Institute to connect with both the Montgomery County Bench and other local family law practitioners.
Estate Planning Trust & Probate Law & Domestic Relations presents: Post-Nuptial Agreements
Wednesday, May 1 | 4- 5pm | 1.0 Gen Hr | Seminar Room
You can sponsor this event - Deadline 4/29!
Diversity, Equity & Inclusion present:
2024 DBA Diversity Day
Thursday, May 9 | 9-1pm
3.0 Hrs pending
Sinclair Conference Center
Thank you, DBA Annual Partners for your sponsorhip!
Who Should Attend? All are welcome! This annual DBA CLE favorite is designed to promote unity throughout the Dayton Bar and the Miami Valley community as a whole. We have included voices in this program that offer both legal and non-legal perspectives.The design of this program is to highlight the humanity of our local practitioners while providing practical tools that may help to expand our bar membership's book of business. This year's Diversity Day will include 3 panel discussions on the following topics:
• Real Estate Developments in the Miami Valley Region Over the Last 5 Years: Reflecting on Positive Momentum, Considering Present Challenges, and Forecasting Growth Opportunities
• Promoting Diverse Perspectives in Conceptualizing Modern Family Structures: Discussion will include Latest Developments in Adoptions, Guardianships, and Marriage Applications with emphasis on the LGBTAIA+ Community
• Finding Opportunities to Heal our Community from Growing Threats of Violence Both Online and In Reality: The Ethical Dilemma of the Legal Profession to Stand Up To Hate
*OSBA
Presenters
& Speakers:
Thank you, DR Section Co-Chairs!
Magistrate Patricia Campbell
Greene County Domestic Relations Court
Magistrate Kathryn
Shields Montgomery County Domestic Relations Court
Judge
April
26th 9am-4pm
Sinclair Conference Center
4.0 Gen Hrs +
1.5
Register by March
PC Hrs
24th for Early Bird DAYTON Bar Briefs | MAR/APR 2024 18
DR Institute Agenda:
Timothy Wood Montgomery County Domestic Relations Court
Magistrate Jennifer Petrella Court Administrator, Montgomery County Domestic Relations Court
Patricia Friesinger
Coolidge Wall Co , LPA
Judge Mary Kate
Huffman
Second District Court of Appeals
Jessica Trease
QDRO Group, Lead Staff Attorney
Dave Kelley
QDRO Group, VP/Founder'
Joe
Caligiuri
Disciplinary Counsel
-
9-9:15am Introductory Remarks
9:15-9:45am
Montgomery
County Court Update
(0.50 Gen Hr)
-
Judge Timothy Wood; and Magistrate
Jennifer Petrella
9:45-10:45am
When
Domestic Relations and Bankruptcy
Patricia Friesinger
-
10:45-11am Break
11-12pm Trauma-Informed
-
Judge Mary Kate
Huffman
12-12:45pm Lunch
12:45-2:15pm
Dividing Ohio Government
Collide (1.0 Gen Hr)
Lawyering (1.0 Gen Hr)
Pensions with Age
and/or Health Disparity Issues: The
Cahill Solution; Tracing Separate Property in Co-Mingled Assets
(1.5 Gen Hrs)
-
Jessica Trease and Dave Kelley
2:15-2:30pm Break
2:30-4pm
Ethics and
Domestic Relations (1.5 PC Hrs
)
Caligiuri
If you believe that there is a service that a child or family will benefit from, advocate for it. This will often include working with the caseworker or the foster parent or parent.
Access to your calendar is a must. Having a physical and electronically portable copy can help prevent you from being double booked and can help you maintain a healthy work-life balance. Additionally, listing what specific tasks you need to complete each day will help you maintain your focus on your goals and help you track your workload and billable hours. Strive to maintain a healthy work life balance by blocking out time just for yourself and your family, with an end goal of combating compassion fatigue and burn-out.
Knowledge of community resources can be extremely helpful. The more you know about community resources, the more you can help guide individuals to appropriate resources.
• For some resources available in Montgomery County see: https://www.mcjcohio.org/aboutthe-court/court-administration/ volunteer-services/court-appointed-special-advocates-program/ casa-resources/
You need to avoid conflicts of interest and the appearance of impropriety. To this end, it is important to have a process in place to identify potential conflicts.
• See Ohio Rule of Professional Conduct Rules 1.7 - 1.11
As soon as you accept a case, do your best to maintain contact with your client. Let your client know that they can call you. It is always better if your client feels that they can call you and ask you about any questions they may have. If you accept an appointment, in addition to calling your client, make sure that you send them a letter with your contact information and any upcoming court dates. For some people, having a physical representation of your contact information makes all the difference. Additionally, make sure to document all contacts that you have with your client, including all attempted, but unsuccessful contacts that you made.
Always file a Discovery Request with the Prosecuting Attorney’s Office. It is important to follow up with opposing counsel to make sure that you receive supplemental records and other pertinent records associated with the case.
If you have accepted an appointment as a GAL, you will be required to submit a GAL Report. Make sure that you look to the local rules to know when your report is due. Marking your calendar with the day that the GAL Report needs to be filed with the court is one way of ensuring that it is submitted on time. Creating an outline for the report once you are appointed, and updating it after each interview and home visit can also help you better manage writing the report. If the child is school aged, you should go to the school and attain the child’s school records. Based on the child’s school records, you can identify potential teachers or counselors to interview. An additional, often untapped source of information regarding the family and the child is social media.
• For example, see Montgomery County Common Pleas Court Juvenile Division Local Rules of Practice and Procedure Rule 8.07
There is always something new that you can learn with each case. Although you may not want to hear it, accepting advice and even some criticism can help you learn and grow as an attorney.
When you practice in a court, it is important that you understand their local rules thus reviewing them on a regular basis is a must.
• For example, see Montgomery County Common Pleas Court Juvenile Division Local Rules of Practice and Procedure
It is important to consistently manage your client’s expectations. This can prove challenging at times, but it is your job as their attorney to avoid enabling their unrealistic goals or expectations. Not only is it your job as an attorney to strongly advocate for your client’s position, but it is also your job to give them sound advice. By maintaining straightforward and direct communications with your client from the beginning of the case, you will set the tone for your relationship.
Consider keeping a bank of your research by topic areas. This will enable you to quickly refer to and use this information on more than one case. This can be particularly helpful if you work on appellate issues.
It is important that you do not take things personally, which can be hard because we are all human. As attorneys, we advocate zealously for our clients and in doing so, we may have a tendency to take it personally when the court does not rule the way we hoped, or opposing counsel is not in agreement with our position. It is imperative to maintain professionalism so you do not burn any proverbial bridges. Due to the nature of our profession and the size of our legal community, it is inevitable that you will appear before the same Judge and/or Magistrate over and over. It is just as likely that you will see opposing counsel on multiple cases. Thus it is very important to maintain a civil relationship with both opposing counsel and the bench.
For trial attorneys, having an alphabetical list of objections available to you during hearings can provide you a quick reminder of objections that can be made during your hearings.
Consider making a case flow template once you accept a case. This should assist you in completing all required tasks. It can also help insure that your case information is organized and help reduce the chance of surprises. Moreover, creating a chart of every individual involved in the case, along with their contact information, will also help you keep relationships straight. Always be prepared for your hearings and trials; a case can change course and blow up at any time. Be sure that you have up-to-date contact information for your client and other individuals that are important to your case. And always verify, verify, verify. You must be certain that you verify all information your client, or anyone else involved in the case, provides to you during the pendency of the case.
Lastly, there is no such thing as too many records. You must be diligent in requesting all relevant records you will need for the case. This could include medical records, financial records, and any other records that could benefit your client and assist in the case.
Co-op Dayton is our local incubator of cooperative and social enterprise businesses. Also known as the Greater Dayton Union Cooperative Initiative, Co-op Dayton is a non-profit organization founded in 2016 to develop cooperative incubator businesses that meet community needs: whether that’s access to fresh groceries or to quality job opportunities.
Nearly nine years ago I was attending a meeting at the Central State Extension of people from the community who were committed to addressing the food desert issue in West and Northwest Dayton; they decided to open up a grocery on lower Salem Avenue. This group decided the grocery store should be a cooperative. They also decided that a non-profit was needed to ensure the success of this effort. That is when the Greater Dayton Union Cooperative Initiative, better known as Co-op Dayton, was born, and I was elected its inaugural board president.
Co-op Dayton believes that the cooperative model of community and worker ownership can transform Dayton’s Black and working-class neighborhoods by rooting jobs and businesses locally. According to Co-op Dayton, cooperatives mean jobs with greater dignity and opportunities for workers to build wealth through their contributions to the business. And cooperatives mean businesses with greater accountability to the people that live close by and work there.
dignified, family-sustaining jobs.
Co-op Dayton is accomplishing its mission by educating and organizing our community around the cooperative movement for a just economy and by providing resources and services to support both startup cooperative businesses and cooperative transitions for existing businesses.
Co-op Dayton’s best known incubation project is the Gem City Market (GCM), a multistakeholder cooperative designed with worker and community owners. Indeed, Co-op Dayton was created to incubate the GCM. Located at 324 Salem Avenue in Dayton, the GCM mission is to serve, engage, and empower our neighborhoods by providing affordable, high quality food in a clean and welcoming environment that is worker and community owned. If you are not one of the more than 5,000 community owners, please visit www.gemcitymarket. com to learn about the benefits of membership as well as how to purchase your GCM membership and become an owner of the Market.
Co-op Dayton is working to build a just local economy. They are inspired by the principles and structure of the Mondragon Corporation, the largest and most successful cooperative network in the world, based in Spain’s northern Basque region. By bringing Mondragon’s resilient model to Dayton, Ohio, Co-op Dayton is developing a network of local cooperative businesses, growing our economy and creating wealth from the ground up.
And through deep community organizing, and democratic cooperative governance, Co-op Dayton is building the movement locally for a just economy that meets our core economic needs for quality products and services, safe and affordable housing, and
Co-op Dayton’s work extends well beyond the GCM, however. For example, Co-op Dayton has spent approximately five years supporting the Westside Makerspace, whose purpose is to provide collaborative, community spaces with access to tools, equipment, and instruction for members to work together while developing their craft, with a goal to empower the community by rooting power, control, and profit locally. Its foundering members, who were inspired by the success of Gem City Market and recognizing the gaps in access and opportunity in Dayon, are committed to highlighting the talents, assets, artisans and creative entrepreneurs in West Dayton.
And moving forward, Co-op Dayton is looking to expand it work in the field of employee ownership transitions, or conversions, specifically the conversion of family owned Dayton area manufacturing businesses to worker owned businesses. This is an effort to support retiring owners to successfully exit through a sale at market value, while giving employees the opportunity to buy into the business, build their personal assets and to ensure that local businesses remain rooted in the Dayton region. Please email Lela Klien at lela.klein@coopdayton.org if you know of a company that may fit this description.
Please visit www.coopdayton.org or contact me at mcurrie@alblelaw. org to learn more about the amazing work being done the committed staff at Co-op Dayton.
Ibecame an OSBA board certified “Family Relations Law Specialist” Jan. 1, 2005, and am re-certified through 2026, by which time I will have practiced law for 45 years. My goal is 50 years.
Practicing law professionally is a demanding task. We have lists of topics that must be discussed with clients, while answering their questions – repeatedly (in part, because people under emotional stress do not hear and understand all that we try to communicate), and deadlines to meet to properly prepare each case for hearing(s), trial, & negotiations. Meanwhile, while working for each client, we must be ready to defend ourselves from future accusation(s) by unhappily ever after, former clients.
Having spent ten years reading and presenting CLE re: decisions of the Supreme Court of Ohio (to DBA, OSBA, & Family Law Forum) in which family law attorneys were found to have violated Rules of Professional Conduct, my lists of “Don’t Do That” developed – including:
” (detailed by Atty. Karen J. Erger of Iowa, published in OH Lawyer 1-2/ 2003). It is not worth the risks to your reputation, finances, or health to represent someone who will never be satisfied, and will not fully pay you for your work.
a) Beware a prospective client who repeats, in detail complaints by phone, e-mail, and in person. Time is money, & s/ he may later complain about your bill. Begin each case with a typed and signed Fee Agreement 11 that described your legal services including all atty.–client communication in person, by phone, U.S. Mail, fax, e-mail. (Never text.) Then, acknowledge all communications, and advise clients against repetition that unnecessarily increases their bills for the same repeated services.
b) Beware: a prospective client who refuses to answer or evades your questions & court forms. A Liar will lie to you, cause you to unknowingly repeat the lie 2., and later, lie2 about you.
c) Beware: prospective client with an “Emergency” who can’t pay because s/he has no credit card, and no one will loan him/her any money. You must decide: Will you work pro bono? Will lack of income tempt you to withdraw other clients’ funds from your Trust Acc’t. before earned?3
d) Beware: prospective client says: Prior lawyer(s) quit or “did nothing” S/he may demand complete victory on every issue. Anything less is “nothing.” Before you choose to render legal services, get written consent to consult prior counsel for information not in their filings.4
When you decline, type:
“Thank-you for consulting me. Our first and only office conference re:_______ was _______, 2024. At that time, I told you that I/we will not represent you, your deadline to file _____ is ____ and, if you wish to proceed or get a 2nd opinion, you should contact another attorney asap.” Keep the document that proves you sent that communication declining representation.5
e) Even “friends & family” can become your clients from hell IF you fail to treat them as clients. Be clear, in writing what services require a fee. Expect complications, especially when s/he tells you how “easy” this case will be.
By Diane Kappeler DePascale, J.D. DePascale Law Offices
diane@depascalelaw.com
Avoiding bad clients will free you from unreasonable demands and the stress of working for those who obstruct your efforts, criticize constantly and then, don’t pay you. Focus on those you can represent because they seem to be honest and reasonable people, who will follow your advice, and pay your fees. Then, you’ll have time and energy to devote to being their zealous advocate.
2. Communication with all current clients is essential and must be documented. Take notes, including dates & times you began & ended each communication, including all office conferences, phone calls, & emails. Keep those emails.
a) During the first office conference with a potential client, IF you are willing to take the case, discuss terms of your typed Fee Agreement.6 It must be signed, retainer & initial court costs fully paid before any lawyer will file anything or appear in court on that case. If the client is relying on someone to pay your fees, s/he must co-sign your Fee Agreement7, that includes: “We understand all communications between attorney and client are confidential and, payment of fees by co-signer, who is not a client does not entitle co-signer to any confidential information.” 8 Also, “When Atty. ____’s work has ended, IF that Atty. has any unearned fees remaining in a trust account, those fees should be sent to _______.”9 Thus, avoid or resolve future arguments.
b) Make an agreement re: how you will keep your client “reasonably informed” about the case, and how soon you will comply with “reasonable requests for information from the client.”10 Example: Atty. ___will reply to client’s calls or emails within 48 hours – personally or through my staff. Keep documents to verify you did.
c) Get each client’s written consent to contact a trusted friend or relative if the client is unavailable. During COVID, a client failed to reply to calls & emails for 2 months. Now what ? Whom may you call ?
d) Never ask, request, suggest, or engage in sexual activity with a client ! 11 Even a text message, email, or a sexual photo with no physical activity is a violation. 12 Even if the “relationship” was mutual & appeared consensual, it is a violation that usually leads to an actual 6-12 month suspension of your ability to practice law. 13 A former client may say s/he was “vulnerable and emotionally weak,” intimidated, afraid to say no... Expect the Supreme Court of Ohio to suspend your license.
e) Obey all Court Orders. Never violate any Protection Order. Attorneys are not immune from prosecution. 14. A second violation of a Protection Order is a felony, and any felony conviction leads to an automatic suspension of your license to practice law.
3. You received a letter from DBA or Disciplinary Counsel marked “Confidential.” Now what ?
a) Read the letters & note the deadline on your calendar. IF you need extra time, ask now, and be specific. Failure to reply will cause your automatic suspension from the practice of law in Ohio.
b) Review your file – including all handwritten notes, emails sent / received, filings, & discovery.
c) Draft your response to every accusation, with cites to documents /evidence, & provide copies, like an appellate brief. Bear in mind: an attorney saw probable cause to inquire. So, respond to that atty. in a professional manner. No name-calling... No “she started it...” No “he just wants to avoid paying me.” That might be true, but it is not a denial nor a defense.
d) Inform OBLIC – before your policy deadline, & ask another attorney experienced in disciplinary matters to read your draft. Do not send your reply letter until approved by your own attorney.
e) Cooperate fully with the disciplinary authority from whom you received that letter. Cooperation includes timely responses to all requests for information and documents.15
For the latest case law and more practical guides, please attend the DBA Annual DR CLE on Friday, April 26. In all professional matters, be careful, and as U.D. Professor Richard Liebler, S.M. wrote: “Illegitimi non carborundum.”
ENDNOTES:
1 OH Professional Conduct R. 1.5 Fees (b) “The nature and scope of the representation and the basis or rate of the fee ... shall be communicated in writing...”
2 OH Prof. Conduct R. 3.3 Candor toward tribunal (a) “a lawyer shall not knowingly ... (1) make a false statement”
3 OH Prof. Conduct R. 1.15 Safekeeping funds in IOLTA . . .
4 OH Prof. Conduct R. 1.9 Duties to former clients (c) A lawyer shall not (2) reveal information... except as permitted...
5 OH Prof. Conduct R. 1.16 Declining or terminating representation: (a) a lawyer shall . . and b) a lawyer may . . .
6 OH Prof. Conduct R. 1.5 Fees (b) “nature and scope of the representation” should include the caption of the case: In the ____Court, v. , Case # __, & specify any limitations such as no other case is included in this Agreement; and “The basis or rate of the fee” should include legal services by Atty. __ are $___. per hour, billed at a minimum of 1 for 6 minutes, and paralegal time at $ __. per hour . . . Lorain Co. Bar Ass’n. v. D. Berta, 2021 Ohio 1264 {“flat fee,” “no balance due,” followed by bills}; Columbus Bar Ass’n. v. C. Family, 2021 Ohio 4054 {“earned upon receipt” without mandatory disclaimer re refund}
7 Ohio's Statute of Frauds, O.R.C. § 1302.04 “a contract for the sale of goods for $ 500. or more is not enforceable...unless there is some writing sufficient to indicate that a contract for sale has been made ... and signed...” and OH Prof. Conduct R. 1.8 Conflict of Interest (f) “A lawyer shall not accept compensation...from someone other than the client unless... (1) client gives informed consent . . .”
8.OH Prof. Conduct R. 1.6 Confidentiality (a) “A lawyer shall not reveal... unless the client gives informed consent...”
9 OH Prof. Conduct R. 1.16 terminating representation: (e) “refund promptly” any unearned fees.
10 OH Prof. Conduct R. 1.4 Communication (a) A lawyer shall . . .Disciplinary Counsel v. R. Barbera, 2021 Ohio 2209 {failed to respond to client’s calls & texts}; Columbus Bar Ass’n. v. W. Davis, 2022 Ohio 1286 {failed to reply to clients calls & emails}.
11 OH Prof. Conduct R. 1.8 (j) “A lawyer shall not solicit or engage in sexual activity with a client,...”
12 Disciplinary Counsel v. Judge T. Berry, 2021 Ohio 3864 {Face book messages & videos w. sexual language / harassment}; Disciplinary Counsel v. A. Russ, 2023 Ohio 1337 {sexual texts, but no physical sexual activity, 1 year suspension}
13 Disciplinary Counsel v. S. Porter, 2021 Ohio 4352 {consensual & initiated by clients, 1 year actual suspension}; Disciplinary Counsel v. K. Cox, 2022 Ohio 784 {consensual, more than 1 year, 1 year actual suspension};Disciplinary Counsel v. M. Noble, 2022 Ohio 2190 {affair with married client, nearly 2 years};
14 Disciplinary Counsel v. R. Reed, 2023 Ohio 1420
15 OH Prof. Conduct R. 8.1 Disciplinary matters respond & disclose all material facts. Columbus Bar Ass’n. v. W. Davis, 2022 Ohio 1286 {failed to reply to letters & subpoena from CBA}.
They say that nothing is certain in life except for death and taxes. For junior lawyers, this grim proverb should probably be amended to include document review and the subject of our discussion today— legal research.
New lawyers and law clerks are frequently asked to investigate legal questions raised by clients or other colleagues who need assistance with a discrete aspect of their own work. While some associates dread research, a case can be made for its value to the newly minted lawyer.
First, conducting legal research helps a new lawyer confront the Sisyphean task of constructing a foundation of working legal knowledge. A law professor of mine referred to this development as “building your wall,” and I think that’s an apt analogy. The disorientation you may feel reading Ohio Civ.R. 30(B)(5) for the first time, for instance, is destined to be temporary. Your first encounter with 30(B)(5) will teach you the general framework of the deposition of a corporation in Ohio—and after, you can happily place a 30(B)(5)-shaped brick in your ever-rising wall of knowledge.
Second, being a “go-to” in your office for research questions is also a healthy exercise in time management and professional versatility. Research questions can, and will, concern any issue under the sun, and you’ll need to grow agile in switching between them when deadlines and priorities inevitably shift. You’ll also need to estimate how long it will take to find an answer so that you can effectively manage your other commitments. You may note that the skills described above are the same core competencies that seasoned attorneys have cultivated. As junior associates, research is our spring training.
There is no magic formula for answering a research question. However, I can share my approach to attacking a difficult research problem.
As a junior associate, you may receive a research question in any number of ways. You may have the problem explained to you in person, over the phone, or over email. The assigning lawyer may even describe the problem spontaneously at the office happy hour. Sometimes you can prepare in advance for an ‘assignment intake’ meeting, but oftentimes you cannot. This is why it pays to carry a small notebook (or at the very least have your phone's notes app ready).
Regardless of how the assignment is transmitted to you, it is crucial that you walk away with a few things. First, you need to know the general nature of the problem and the area of law you will be wading through. Getting as many details as you can from the assigning attorney is helpful here, as you may be able to identify issues they haven’t raised. If there are any aspects of the assignment you don’t understand, ask. Ask how the assignment fits into the bigger picture—how will your work be used? Similarly, ask what form your work product should take. Is it a memo, or will an email suffice? Who are you writing to—a nonlawyer? The client? What are the relevant deadlines—and are they flexible or set in stone? This all seems obvious enough, but if you are leaving an interaction with the assigning attorney without the answers to these questions you are setting yourself up for future trouble (or at the very least, some awkward follow-up questions that the assigning attorney expected you to ask at the outset).
Lastly, if the assignment was given to you verbally, it pays to memorialize the conversation while it is fresh on your mind (i.e., within an hour). You can dictate a note to yourself, or write a summary of the assignment. This is important for two main reasons. First, notes like these obviously help ensure you don’t miss any aspect of what you were asked to do. Second, these notes will help “refocus” you and ensure that you are on the right track once you get into the weeds of a question. Once you have your written summary,
By John P. Jarecki Taft, Stettinius & Hollister LLP jpjarecki@taftlaw.com
send it in an email to the assigning attorney as a way to confirm both the assignment and your understanding of its goals.
After receiving an assignment, and while it is still fresh in your mind, do a cursory, 30,0000 foot exploration of the question. During this “dip-in,” you should 1) identify any of the relevant authorities, 2) make sure your understanding of the question holds up after a superficial look at the subject matter, and 3) calculate how long the project will take you.
Ideally, a dip-in will also help you identify areas of the project you have questions about so you are asking them well in advance of the deadline. As an added bonus, a dip-in tells an assigning attorney that you are prioritizing their project and makes you seem more responsive.
First, if needed, use secondary sources to gain general familiarity with a subject. Google can help you here, but Law review articles are the best secondary sources to use because they provide long “background” sections that always cite to authority (unlike promotional law firm blogs). Next, identify and review any relevant statutes. Statutes are the best place to start your research. Then, review the cases that cite to the statute. The easiest way to do this is to review the “notes of decisions” and “citing references” tabs on Westlaw. The “context and analysis” tab, too, can occasionally be useful.
Make sure to know when to quit. The worst thing you can do is miss authority that causes you to give the assigning attorney the wrong answer. However, if you are seeing the same material repeatedly after using different search terms, that can be an indication that you’ve covered the ground you needed to cover.
Make sure to proofread your work product. A colleague once told me “I try to never turn anything in unless I’m genuinely unsure how it can be improved.”
As new attorneys, we have a lot to learn. However, strong legal research skills can go a long way towards producing good work for our fellow attorneys which translates to excellent results for our clients. Happy researching!
Are you using this DBA Member Benefit?
Cert, a cutting-edge negative citator tool for Fastcase, empowers legal researchers by swiftly and effortlessly identifying cases that have been treated unfavourably in subsequent decisions, thus providing a comprehensive perspective on a case's precedential value.
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The Dayton Bar Foundation (DBF) is a 501(c)(3) charitable organization and serves as the 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:
•AdvocAtes for BAsic leGAl equAlity (ABle)
•GreAter dAyton volunteer lAwyers ProJect (GdvlP)
•lAw & leAdersHiP institute
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In the pursuit of justice and equality, the Greater Dayton Volunteer Lawyers Project (GDVLP) stands as a beacon of hope, embodying the spirit of community service and legal advocacy. In 2023, the GDVLP witnessed an inspiring display of commitment from 143 volunteers who collectively donated 2621.85 hours of their time, a contribution valued at an impressive $649,869. These selfless individuals played a pivotal role in closing 608 cases, underscoring the significant impact of pro bono services on the community.
GDVLP is rooted in the belief that access to legal representation is a fundamental right. We have consistently worked towards bridging the justice gap for those who cannot afford legal services. The sheer dedication of the 143 volunteers in 2023 not only exemplifies their altruism but also highlights the pressing need for pro bono services in our society.
The 2621.85 hours contributed by these volunteers transcend mere numbers; they represent a collective effort to empower individuals and families facing legal challenges. From helping survivors escape violent marriages to assisting seniors in maintaining their homeownership interests, from landlord-tenant disputes to family law matters, the GDVLP's volunteers showcased their expertise across a spectrum of legal areas, ensuring that justice was served where it was needed most.
The monetary value of $649,869 assigned to these volunteer hours underscores the immense economic impact of pro bono work. In a world where legal representation is economically out of reach for so many people, the GDVLP's volunteers serve as advocates for equality, reinforcing the idea that justice should not be a privilege but a right for all.
Closing 608 cases speaks to the effectiveness of the GDVLP's initiatives. Behind each case closed lies a story of empowerment, a narrative where individuals found resolution, support, and a renewed sense of hope. The ripple effect of these closed cases extends beyond the immediate legal matters, fostering stronger communities and reinforcing the belief that justice is attainable for everyone.
The Greater Dayton Volunteer Lawyers Project, through the dedicated efforts of YOU, our much-appreciated volunteers, continues to be a driving force in shaping a more just society. The remarkable statistics from 2023 not only highlight the impact of pro bono services but also serve as a testament to the generosity and commitment of those who believe in the transformative power of legal advocacy.
The success of the Greater Dayton Volunteer Lawyers Project is not solely measured in statistics, however; it's fueled by the passion and commitment of individuals willing to make a difference. As we celebrate the accomplishments of 2023, we invite you to join this noble cause. Whether you're a seasoned legal professional or a law student eager to contribute your time and skills, there's a place for you at GDVLP. By volunteering, you become an integral part of a community dedicated to justice and equality. Your efforts, no matter how big or small, have the power to transform lives and uplift those facing legal challenges. Take the first step towards making a positive impact—consider volunteering with GDVLP and be a catalyst for change in your community.
By Summer D. Hawks, Esq. Exec. Dir. GDVLP summer@gdvlp.org
The law firm, Green & Green Lawyers, LLC is pleased to announce that they are a Best Lawyers of America© "Best Law Firm" for 2024. They would also like to congratulate Thomas M. Green, Jane M. Lynch, Erin B. Moore and Jared A. Wagner for their recognition as Ohio Super Lawyers® for 2024. (photo above from left to right):
• 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. Mr. Green is also an AV Preeminent rated attorney by Martindale Hubble® and has been repeatedly recognized by Best Lawyers in America©
• Jane M. Lynch has been recognized as an Ohio Super Lawyers® starting in 2006, and was selected as a "Top 25 Women Cincinnati" in 2023 and 2024, is an AV Preeminent rated attorney by Martindale Hubble®, and recognized once again by Best Lawyers in America© 2024 in the areas of Civil Rights Law and Litigation Insurance.
• Erin B. Moore has been recognized as an Ohio Super Lawyers® since 2017 and practices as a litigator in the areas of construction law, governmental liability law, and general insurance defense and coverage matters, and is also an AV Preeminent attorney by Martindale Hubble®.
• Jared A. Wagner has been recognized as an Ohio Super Lawyers® since 2017 and also practices in construction law, governmental liability law, gun rights law, and general insurance defense matters, is also an AV Preeminent attorney by Martindale Hubble®, and recognized by Best Lawyers in America© 2024 in the area of construction litigation.
The law firm of Thompson Hine LLP is pleased to announce the following:
• Jamar T. King was elected to the partnership at Thompson Hine LLP. As a member of the firm’s Business Litigation and Government Contracts practice groups, he focuses his practice on solving legal problems for clients operating in the complex realm of government procurement. In addition to advising government contractors, he is a seasoned trial attorney. He has represented businesses in a wide range of industries in complex commercial litigation in federal and state courts throughout the country. King currently sits on the board of the DBA; and is also the recipient of the 2021, 2022, 2023 and 2024 Best Lawyers: Ones To Watch recognition for Commercial Litigation and Criminal Defense: White-Collar. He was named to Lawyers of Color’s Hot List in 2020.
• Rebeccah C. Raines was elected to partnership at Thompson Hine LLP. Raines is a member of the Corporate Transactions & Securities group. She focuses on middle-market transactions, including mergers, acquisitions, divestitures, and reorganizations along with a variety of corporate governance matters, entity formations and general business counseling. She also focuses on a wide spectrum of health care transactions, including change of ownership analysis, for clients in regulated industries, including pharmacies, clinical laboratories, hospitals, and physician practices. Raines received 2021, 2022, 2023 and 2024 Best Lawyers: Ones To Watch recognition for Corporate Governance and Compliance Law and Mergers and Acquisitions Law.
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!
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