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The Magazine of the Dayton Bar Association | March 2019 | Vol. 68, No. 7


Bar Briefs

Overcoming Unspoken Biases Beyond Just Conversation

Barrister of the Month Brian L. Wildermuth Esq. pg 6

Rising Star Christopher C. Hollon Esq. pg 10

Labor & Employment

Does Title VII Protect Against Transgender and Transitioning Status Discrimination? In the Sixth Circuit, Yes. pg 12



Bar Briefs

March 2019 | Vol. 68, No. 7

Dayton Bar Association Board of Trustees 2018 – 2019

David P. Pierce President

Hon. Mary L. Wiseman First Vice President

Fredric L. Young

Second Vice President

Cara W. Powers Secretary

Brandon C. McClain Treasurer

Cassandra L. Andres Rice Member–at–Large

Caroline H. Gentry Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber

Features 4 TRUSTEE'S MESSAGE DBA Committees Are of Value to All of Us By Fredric L. Young Esq. 6


By Michelle T. Sundgaard Esq.


Immediate Past President


Sally Dunker, 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 Library of Congress ISSN #0415–0945 Sally Dunker, Executive Director Shayla M. Eggleton, Communications 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 March 2019

Does Title VII Protect Against Transgender and Transitioning Status Discrimination? In the Sixth Circuit, Yes.

By Matthew T. Crawford Esq.

14 FOR THE GOOD: ROBERT "BUZZ" PORTUNE ESQ. By Morgan Napier, Spring Extern, Gottschlich & Portune, LLP


John M. Ruffolo, ex officio Bar Counsel

By Magistrate Elaine Stoermer



Brian L. Wildermuth

DOMESTIC RELATIONS LAW Spousal Support Still Includible and Deductible - In Child Support Calculation


Pretrial Innovations

By The Honorable Mary Katherine Huffman

Departments 18 CONTINUING LEGAL EDUCATION 23 CLASSIFIEDS 23 MARCH COMMITTEE MEETINGS Upcoming Events 5 SAVE THE DATE: 2019 ANNUAL MEETING Fri. May 31st | 6:00pm | Sinclair Community College 19 2019 DIVERSITY DAY Fri. April 5th | 8:30am - 1:30pm | Sinclair Community College 22 LOCAL LAW RELATED EVENTS 937.222.7902

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

Platinum Partners Coolidge Wall Co., LPA www.coollaw.com

Founded in 1853, Coolidge Wall Co., L.P.A. is a premier resource for businesses and individuals. From our historic office in downtown Dayton, we serve clients throughout the Greater Miami Valley area and all over the world. As one of the oldest and most respected law firms in Ohio, we are trusted legal professionals with a history of obtaining results.

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 www.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.

If you are interested in becoming a DBA Annual Parter, contact: Sally Dunker DBA Executive Director sdunker@daybar.org 937.222.7902 www.daybar.org

March 2019 Dayton Bar Briefs


Trustee's Message

DBA Committees Are of Value to All of Us By Fredric L. Young Esq. DBA Second Vice-President Green & Green Lawyers


he Dayton Bar Association includes over 1650 professionals: attorneys, judges, magistrates, paralegals, legal administrators and law students bonded together for common interest. We have been around since 1883. From an operational standpoint certainly, the DBA is run by a great group of people whose daily tasks are to further the DBA and the value it offers its members. For years Bill Wheeler steered the ship with dedication, grace and professionalism. Recently, Sally Dunker took the helm and is taking the DBA into the future with solid leadership and great ideas. The team at the DBA offices are as good as they come, and serve our group’s needs well every day. But we are an association (note the name) of professionals. The DBA staff cannot drive this train alone. We have a long history of associating, of meeting and of sharing what we know about our profession and the legal system we serve. A large part of our service to our profession includes the DBA committees that cover many areas of practice and procedure in our local legal system. The DBA’s committees allow us to come together, from new professionals to those with experience, some with questions, some with answers. Committees allow us to share our interests and passions in many areas of the law. And from that mingling of people and thoughts, we develop relationships, we learn, we advance our profession, and we improve the legal system. There are many ways to find value in the dues you pay the DBA. Our committees are a large part of that return on investment. Take, for example, the Civil Trial Practice & ADR Committee, chaired now by Judge Steven Dankof and Judge Michael Krumholtz. Both have a vested interest in the committee’s role of discussion, professional interaction and education in that core area of law. Judge Krumholtz recently spoke to the value of our DBA committees: “DBA committees are the critical links in the historic chain of communication of knowledge with shared collegiality on an in person basis which have distinguished the legal practice in the Dayton area. In plain English, you meet your contemporaries face to face and learn from each other in a setting where you just might have some fun and develop some friendships.” Jon Hung, Green & Green, Lawyers, who chairs the Real Property Committee, had another take on committee involvement. “No matter how passionate or knowledgeable you are about an area of your practice, there is still a lot to learn. Meeting with fellow professionals to gain new information or new approaches, while at the same time building on or creating new relationships, is an invaluable benefit of committee involvement.”


Dayton Bar Briefs March 2019

The statements by Judge Krumholtz and Jon Hung about DBA committee service mirror the DBA’s mission statement: The DBA enhances member professional standards of excellence, collaboration among the Bench and Bar, the successful practice of law, and the personal well-being of our members. DBA committees offer advantages to our members, and serve as a venue for improvement of our practices and our legal system. But certainly committees involve a commitment of time and energy. All of us do our best every day to judge the most effective use of our time in our personal and professional lives. Time, often as much as money, is capital that we try to invest wisely. DBA committees have a long history of a return on investment in many ways, professional and personal. Signing up is an easy step for committee involvement, but showing up, being involved, interacting with your fellow professionals, members of our judiciary, that’s where the investment pays off. You have many opportunities to invest your time. The list of committees can be found on the DBA website here: www.daybar.org/ members/group_select.asp?type=23483 Our committees address real property, probate, appellate, civil trial practice and technology, jut to name a few areas of our legal system. If you have not done so already, sign up for a committee that piques your interest. It’s easy to sign up on the DBA website – just click away! Monthly DBA emails will tell you the current meeting schedule. Some meet at the DBA offices, others meet elsewhere, so make sure you know where you are going and when. And when you get there, participate! Law students, new professionals, professionals with some experience, and professionals with more experience than they often care to admit have something to offer, and something to gain, from participating. Become involved with a committee or two, stay involved and watch your investment in you, and in the DBA, grow.


DAYTON Bar Association

2019-2020 DBA Board of Trustees Nominees

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, 2019 are: Second Vice President and Secretary

Second Vice President: Merle F. Wilberding Esq. Coolidge Wall Co., LPA 33 W. First St., Ste. 200 Dayton, Ohio 45402-1276 937.449.5772 wilberding@coollaw.com Secretary: Caroline H. Gentry Esq. Porter Wright Morris & Arthur, LLP 1 S. Main St., Ste. 1600 Dayton, Ohio 45402-2088 937.449.6748 cgentry@porterwright.com

Elections will take place at the DBA Annual Meeting on Friday, May 31, 2019.


March 2019 Dayton Bar Briefs


Barrister of the Month

Brian L. Wildermuth Esq.


he Dayton legal community is full of hard working and dedicated attorneys that embody the professionalism and respect for the practice of law. In order to sustain a legal community of respect and civility, it takes strong leaders to create the path for the lawyers in this profession. In Dayton, we are fortunate to have Brian Wildermuth to lead our legal community and assist in sustaining the strong reputation we have in Dayton. Brian received his undergraduate degree from Miami University in 1992 and graduated magna cum laude from the University of Toledo in 1996 where he earned his Juris Doctorate. After graduation, he moved to Dayton and began his career at a local law firm practicing medical malpractice and insurance defense cases. During this time, Brian worked with his current partner Nicholas E. Subashi, Esq, and after about four years, Brian and Nicholas opened their own firm, Subashi & Wildermuth, in 2000. Brian practices insurance defense and coverage, education law where he represents school districts, labor and employment, and probate litigation, among other areas of the law. Outside of the Dayton legal community, you can find Brian spending time with his wife Jan and their two daughters. Brian’s dedication to the practice of law does not end at representing his clients. He is an active member in the legal community as a member of the Ohio State Bar Association, Ohio Council of School Board Attorneys, and the Carl D. Kessler Inn of Court. He has also previously served on the Amicus Committee and Board of Trustees for the Ohio Association of Civil Trial Attorneys. Brian’s exceptional leadership continues as he is also a mentor for The Supreme Court of Ohio’s Lawyer to Lawyer Mentoring Program. One of Brian’s biggest accomplishments as an active community member was serving as President of the Dayton Bar Association in 2017-2018. Brian is the immediate past president of the Dayton Bar Association, and prior to his presidency, he was a chair of the Civil Trial Practice Committee, a Member-at-large of the Board of Trustees, Chair of the Certified Grievance Committee, and Vice President of the DBA. His leadership throughout the Dayton Bar Association made him humble and honored to be the President of the DBA, and there is no question that those of us practicing in Dayton look up to Brian as an excellent leader and lawyer in this community and profession. Through his years of leadership and practice of law, especially as President of the DBA, Brian learned many lessons on becoming a great lawyer and advocate for his clients. When giving advice to young lawyers, or any lawyer, is to work hard. Brian’s advice to the next generation of lawyers was simple, articulate, and practical: “There is no substitute for hard work.” His advice, while he says might seem obvious to any lawyer, is one that we must always remember as lawyers to best serve our clients. Hard work will allow lawyers to be become successful in their careers, in the law and in life. Brian Wildermuth’s success undoubtedly started and continues to be from his hard work. As a partner at Subashi, Wildermuth & Justice, Brian continues to serve his clients and his community. Dayton is fortunate to have Brian as a lawyer, leader, and mentor in this community. By Michelle T. Sundgaard Esq. DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA 937.222.7902 6 Dayton Bar Briefs March 2019

Dayton Bar Association Leadership Development Program


It’s time to inspire! Put those natural born leadership qualities to use. Take this opportunity to engage with key stakeholders in the Dayton legal community.


Grow your network within the legal community and become a catalyst for positive leadership.


Now is the time to lead! Get prepared for your next big step, personal or professional, with cutting-edge leadership development and training.

DBA Leadership Development Program Application Deadline is May 10, 2019 Ready for Take Off!

The Dayton Bar Association Leadership Development Program is accepting application NOW for the Class of 2019-2020. By participating in the Program you will Expand your networking within the legal community, Explore leadership opportunities, and Experience the benefits of DBA Membership, all crucial elements in your future professional and personal success!

Program Details

The Leadership Development Program is designed for DBA Members who have been practicing less that 5 years. Monthly activities, events and sessions will run September through June and connect you with issues, essential training, and key leaders of the community. Lawyers will be accepted based upon an interest in the DBA, interest in future leadership positions at the DBA, good standing within the legal community and an interest in community service.

Previous Leadership Development Program Grads are Current Leaders!

“colleagues The Class provided me with a forum to make new friends among my new-lawyer as well as networking opportunities with experienced attorneys serving

the Bar. The speakers and class topics provided me with insight and skills I needed to create a foundation for being a lawyer-leader in my community. - Cassandra Andres Rice Esq. Gottschlich & Portune LLP DBA LD Class of 2013-14’

You're next ! Apply Today www.daybar.org th Deadline May 10

“opportunity The DBA Leadership Development Class provided me with a meaningful to identify ways to grow as both a lawyer and a community leader

through thoughtful discussions with local judges, thought leaders, and business professionals. People look to lawyers for wisdom and insight. The DBA Leadership Development Class offered me the tools and relationships to refine those qualities while making a difference in both my practice and our community. - Zachary S. Heck Esq.

Taft Stettinius & Hollister LLP DBA LD Class of 2017-18’


March 2019 Dayton Bar Briefs


Domestic Relations

Spousal Support Still Includible and Deductible In Child Support Calculation By Magistrate Elaine M. Stoermer Montgomery County Domestic Relations Court


ax Cuts and Jobs Act of 2017 has gone into effect and has changed the tax effect of court ordered spousal support obligations. Divorce decrees and separation agreements signed in 2019 will still have spousal support obligations but the amount ordered will no longer be deductible from the payor spouse’s income or includible as income for the payee spouse. This obligation will be treated for tax purposes the same way child support payments are treated. However, a spousal support obligation will still have an effect on a party’s income for child support purposes.

Ohio Revised Code Section 3119.01(C)(2) provides:

(7) “Gross income” means, except as excluded in division (C)(7) of this section, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses to the extent described in division (D) of section 3119.05 of the Revised Code; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; benefits that are not means-tested and that are received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a program or law administered by the United States department of veterans’ affairs or veterans’ administration; spousal support actually received; and all other sources of income. “Gross income” includes income of members of any branch of the United States armed services or national guard, including, amounts representing base pay, basic allowance for quarters, basic allowance for subsistence, supplemental subsistence allowance, cost of living adjustment, specialty pay, variable housing allowance, and pay for training or other types of required drills; self-generated income; and potential cash flow from any source. [emphasis added]. The amount of spousal support received by a parent is included on line 6 of the child support worksheet as “Other income” . This “inclusion” is the same after HB 366 goes into effect on March 28, 2019. See R.C. 3119.01(C)(12)[eff.3-28-19). 8

Dayton Bar Briefs March 2019

Ohio Revised Code Section 3119.05(B) provides:

When a court computes the amount of child support required to be paid under a court child support order or a child support enforcement agency computes the amount of child support to be paid pursuant to an administrative child support order, all of the following apply: . . . (B) The amount of any pre-existing child support obligation of a parent under a child support order and the amount of any court-ordered spousal support actually paid shall be deducted from the gross income of that parent to the extent that payment under the child support order or that payment of the court-ordered spousal support is verified by supporting documentation. [emphasis added]. The amount of spousal support paid is placed on line 10 of the child support worksheet. This “deduction” is not changed by HB 366 but the amount is listed on line 11 of the worksheet. See R.C 3119.05(B)(effective 3-28-19)[HB 366 makes significant changes to other provisions in R.C. 3119.05 in calculating child support]. After March 28, 2019, the code provision will read: “B) The annual amount of any court-ordered spousal support actually paid, excluding any ordered payment on arrears, shall be deducted from the annual income of that parent to the extent that payment of that court-ordered spousal support is verified by supporting documentation.” The Final Analysis for HB 366 prepared by the Ohio Legislative Service Commission notes that payment on arrears is excluded from the income deduction and that “it is annual spousal support that must be deducted from annual income, rather than spousal support deducted from gross income.” Note that the language of the statute modifies the obligation by using that which is “actually received” and “actually received”. Thus, it there is an order for spousal support but the payee’s former spouse is not paying the court ordered spousal support, the obligation is not included on line 6. Likewise, the payor cannot deduct the court ordered spousal support on line 10, if he or she is not paying it. Thus, the payment of spousal support is still relevant in child support calculations after January 1, 2019 and March 28, 2019. How the court determines the “appropriate and reasonable” amount of spousal support is outside the scope of this article.


2019Robert N. Farquhar District Mock Trial Recap


hink back to your first trial – you walk into the courtroom and while you have been vigorously preparing, it is impossible not to be nervous. After all, this is exactly why what you went to law school, right? Now, can you imagine walking into that courtroom to try a case as a high school student? On January 18, 2019, high school students from this region walked into Montgomery County Common Pleas Court nervously, but overwhelmingly prepared. It took only moments of listening to opening statements to see the preparation and dedication of each mock trial team that competed. The 2019 Robert N. Farquhar, Esq. District Mock Trial Competition involved a case, State of Buckeye v. Quinn Woolf, about an individual’s right to privacy in our increasingly technological world. The students were to represent either the State or Quinn Woolf, who was arrested on charges of aggravated assault and telecommunications fraud for stealing $120 million from the State’s pension fund. The State’s claim is based on drone footage captured from 400 feet in the air. The footage was enhanced to show Quinn Woolf sitting under a gazebo in the backyard of the Woolf residence with a notebook and a laptop, which revealed an alpha-numeric code that matched the code needed to access the State’s account. The Defense filed a Motion to Suppress the evidence of the drone footage for violation of Quinn’s Fourth Amendment rights. The specific issue in this case is whether the contracted drone operator qualifies as a State actor and whether Quinn had a reasonable expectation of privacy. This fact pattern is one we can all relate to from our law school days, but even as law students, it was difficult to understand a person’s reasonable expectation of privacy with the increasing technological changes – even if you went to law school 50 years ago! The competitors zealously argued this case on both sides. They were articulate in their opening statements, they supported their arguments and themes with the appropriate evidence and caselaw, and they sufficiently summarized their case during closing arguments as if they have been attorneys for years. Most impressive was their ability to think on their feet for a strong rebuttal to close out the trial. For each case, there was an overwhelming sigh of relief as the panel of judges left the courtroom to “deliberate”. While that sigh of relief is certainly understandable, it was clear as day that the students were prepared for the competition. Mock trial teaches invaluable lessons, especially to students in high school. Many of them will look back and remember that they learned some of the most important skills to have as they go through college, possibly law school, graduate school, interviews, their careers, and every day dealings. They learned professionalism, how to think on their feet, how to listen to someone (a witness) before speaking (asking the next question), how to always over-prepare, and how to think like a lawyer, which is invaluable in any profession. For those students expecting to go to law school, they will already have an understanding of the rules of evidence, issue spotting, procedure, briefing a case, and general courtroom intricacies. Strong mock trial teams begin with strong mock trial coaches. While the Dayton Bar Association coordinates this competition, some of the DBA’s own members are shaping the minds of these future litigators. Congratulations those coaches, such as Zachary Heck with Taft, Stettinius & Hollister LLP and Thomas P. Whelley II with Dinsmore & Schohl LLP, who find the time to coach local high school mock trial teams that compete and excel in this competition.

By Michelle T. Sundgaard Esq. DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA www.daybar.org

Congratulations to the teams advancing to the Regional Competition, and a special thanks to our many volunteer judges, the Montgomery County Common Pleas Court Judges for allowing the use of their courtrooms, and the Dayton Bar Association for supporting and coordinating this annual competition. We hope to see you all back next year! March 2019 Dayton Bar Briefs


DBA Rising Star

Christopher C. Hollon Esq.


hristopher Hollon is a lover of history. From studying it to admiring it, he has long appreciated its lessons and its influence in our world and our lives. What’s more, he enjoys the opportunity to be an active participant in history as it unfolds. It is clear that this love of history contributes to the exemplary lawyer Christopher is today. Born in Dayton, Christopher was raised just south of town in Monroe. He attended Fenwick High School in Middletown, where he greatly enjoyed his government and history classes. According to him - “Even then, I was a bit of a government nerd.” He put that passion into action, serving as the Student Council President. Christopher also participated in the Hi-Y Youth in Government program (a model state legislature), as well as in the Ohio Boys State Program. “The bills we passed were what you might expect from a bunch of teenagers, but the experience gave me a lasting appreciation for not only the mechanics of government, but also the effort it takes for democracy to work.” In addition to these activities, Christopher captained both the cross-country and track teams. After graduating high school, Christopher continued his studies at the University of Notre Dame, where he majored in Economics and Political Science. He continued to enjoy history and government classes as well, and once again served in student government, this time in the Student Senate. Before the question can even be asked, Christopher is quick to state that – “Yes, yes, I think even then I had a pretty good idea law school was in my future.” He also worked as a mailman for the school, which involved driving a golf cart about campus. Christopher graduated from Notre Dame in 2007. True to his suspicions, law school was in-


Dayton Bar Briefs March 2019

deed the next step. Christopher attended law school at The Ohio State University, graduating in 2010. Classes like Constitutional Law, Evidence, and Administrative Law were of particular interest and enjoyment. He served as a managing editor for the Ohio State Law Journal. He also had an externship with U.S. District Judge Gregory Frost, and participated in the school’s summer law program at The University of Oxford in England. After Law School, Christopher clerked for U.S. District Judge John Holschuh, Sr. in Columbus. Christopher then served as a staff attorney for then-Judge Patrick Fischer during his tenure on the Ohio First District Court of Appeals. In reflecting on his time as a clerk, Christopher enjoyed diving into the cases, particularly at the First District given the court’s broad subject-matter jurisdiction. Christopher enjoyed conducting the research required to understand, and properly advise the court, on the cases before it. Christopher is now an attorney at Faruki Ireland Cox Rhinehart & Dusing PLL. He began in June of 2013. Christopher’s practice focuses on complex business litigation, including matters concerning breach of contract,

misappropriation of trade secrets, breach of fiduciary duties, tortious interference, and fraud. He also does a significant amount of regulatory work in rate proceedings before the Public Utilities Commission of Ohio. Christopher also handles media law matters, including defamation, public records requests, and open government issues, He currently chairs the Ohio State Bar Association’s Media Law Committee, and has drafted amicus briefs filed at the Supreme Court of Ohio on behalf of media clients. Christopher helps organize the annual Law and Media Conference held by the OSBA Media Law Committee, which is frequented not only by attorneys, but also journalists, government officials, and journalism students. Planning is already underway for this year’s conference in October. For the past two years, Christopher has served as Membership Chair for the Dayton Chapter of the Federal Bar Association. He is a recent graduate of Leadership Warren County, and was named a Super Lawyers Rising Star for 2019 in business litigation. He also had the fairly uncommon pleasure (at least for

continued on page 11


DBA RISING STARS: Christopher C. Hollon Esq. continued from page 10

lawyers) of serving for two months on a grand jury. The experience gave him great insight into how juries approach cases, and a deeper appreciation for the service they perform. Christopher is happy married to his wife of ten years, Amy, and they have two children:4 year-old Luke and 1 year-old Mae. Mae is a big fan of animals, Luke is into machines and inventions. Luke recently discovered the Wright brothers and was amazed by their ingenuity. “He asked me if I knew anything about them,” Christopher said. “And I told him, ‘Buddy, have I got some news for you. You were born in the right town!” Christopher his family live in a century-old house in Lebanon. Taking care of an older house keeps them busy, but they view the process as a beneficial; maintaining the integrity of the house and keeping a part of history alive as stewards of that history. In reflecting on what he likes best about being a lawyer, Christopher states that he enjoys the dispute resolution process. “The whole point is to try and resolve matters justly,” he says. “It’s difficult, but fighting for people is rewarding.” Similar to his home, Christopher views the role of “the Law” and of lawyers as a part of history. To him, this is the system that has been created to handle these tough issues and it both stands out in history and has stood the test of time. He enjoys being a part of that, and in doing the best one can for their client. With Christopher Hollon, it is impossible to deny how fitting it is for a student and admirer of history to also be an active participant in it.

DAYTON Bar Association


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

How to Apply: If you would like to take advantage of these programs, contact:

Sally Dunker DBA Executive Director Dayton Bar Association 109 N. Main St., Suite 600 Dayton, OH 45402-1129 sdunker@daybar.org | 937.222.7902 | www.daybar.org

By Nathaniel S. Peterson Esq. Assistant Prosecuting Attorney Montgomery County Prosecutor’s Office DBA Editorial Board


March 2019 Dayton Bar Briefs


Labor & Employment

Does Title VII Protect Against Transgender and Transitioning Status Discrimination? In the Sixth Circuit, Yes. T T

he landscape of antidiscrimination law in the workplace continues to shift. No fewer than three sets of litigants are currently asking the United States Supreme Court to weigh in on whether sexual orientation, transgender and transitioning status are valid bases for discrimination under Title VII of the 1964 Civil Rights Act (“Title VII”). One case of particular interest originated in the Sixth Circuit, making it the first circuit in the country to recognize gender identity discrimination as prohibited by Title VII. At the time of this writing, the Court has not granted certiorari, but employers should be watching closely for further developments. Last March, the Sixth Circuit held that an employer taking adverse employment action against transgender and transitioning employees because of that status runs afoul of Title VII. In E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc.1, an employee of the funeral home, Aimee Stephens, told the owner and operator, Thomas Rost, that she intended to transition from male to female.2 Stephens wrote a letter to Rost disclosing a struggle with a “gender identity disorder” and that Stephens “decided to become the person that [her] mind already is.” The letter explained Stephens’s intent to undergo reassignment surgery and plan to live and work full-time as a woman, starting when Stephens returned from vacation.3 Rost responded saying in part “this is not going to work out,” and offered Stephens a severance in exchange for nondisclosure and a waiver of claims. Rost relied on his sincere belief that sex is an immutable “gift” in concluding that his faith prohibited him from allowing a male to present in female clothing.4 Prior to Stephens leaving for vacation, Rost terminated Stephens. The EEOC filed suit alleging that Stephens was terminated for failing to conform to sex stereotypes, and also due to her transgender status.5 While allowing the stereotype-based discrimination claim to move forward, the District Court found the Religious Freedom Restoration Act (“RFRA”) precluded the Commission’s enforcement against the funeral home. Specifically, the EEOC had not met its burden of demonstrating enforcement of Title VII was the least restrictive means by which to accomplish the (presumed) compelling interest in preventing unlawful stereotype discrimination via the home’s clothing requirement.6 A claim alleging discrimination based


Dayton Bar Briefs March 2019

on the funeral home’s clothing allowance policy also failed due to Sixth Circuit precedent limiting Title VII litigation claims to those “reasonably expected to grow out of the complaining party’s…original charge.”7 The Sixth Circuit disagreed. Relying on its earlier decision in Smith v. City of Salem8, the panel reversed the District Court, holding that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”9 The Court found it “analytically impossible” to separate considering an employee’s transitioning or transgender status in making an adverse employment decision from considering the employee’s sex.10 The Supreme Court in Price Waterhouse v. Hopkins11 held that discrimination “because of […] sex” means gender must be “irrelevant” to employment decisions, something the Sixth Circuit considered impossible when an employee’s desire to change his or her sex factors into an adverse employment decision. Transgender and transitioning status “constitutes an inherently gender non-conforming trait.” 12 The Sixth Circuit found Stephens was fired for failing to conform to sex stereotypes, rejecting the funeral home’s contention that stereotypebased adverse employment actions are only prohibited when resulting in disparate treatment of men and women.

continued on page 13

ENDNOTES: 884 F.3d 560 (6th Cir. 2018). Id. at 568. 3 Id. at 568-9. 4 Id. at 569. 5 Id. at 569-70. 6 Id. at 570. 7 Id. 8 378 F.3d 566 (6th Cir. 2004). 9 884 F.3d at 560. 10 Id. at 575. 11 490 U.S. 228 (1989). 12 884 F.3d at 577. 13 Id. at 586-8. 1 2


LABOR & EMPLOYMENT Title VII Protect Against Transgender and Transitioning Status Discrimination continued from page 12

Don't miss this year's Annual Diversity Day on April 5th!

Mr. Rost asserted that the EEOC’s enforcement placed a substantial burden on his sincere religious exercise. The court however found that Mr. Rost’s religious beliefs were not substantially burdened by either: i) the presumed biases of customers of the funeral home, or ii) permitting Stephens to “wear attire that reflects a conception of gender” at odds with Mr. Rost’s beliefs. Rather, Title VII enforcement is the least restrictive means to further the EEOC’s interest in eliminating sex stereotype employment discrimination. The court left little doubt that within Ohio, Michigan, Kentucky and Tennessee, adverse employment actions due to someone refusing to present as a member of one sex “fall[s] squarely within the ambit of sex-based discrimination” under Title VII. 14

details on page 19

Register online: daybar.org/dbadiversityday

SCOTUS Weighing In?

The funeral home seeks certiorari in the U.S. Supreme Court, and the federal government has filed a brief in opposition. But while the Solicitor General’s brief asserts that the Court should not grant certiorari, in agreement with Stephens, it diverts from Stephens on the broader gender identity questions. The brief contrasts R.G. with Zarda v. Altitude Express, Inc., 15 883 F.3d 100 (2d Cir. 2018) and Barstock v. Clayton Cty., Georgia,16 two cases presenting opposite answers to whether Title VII applies to sexual orientation discrimination. The government describes Zarda and Barstock as presenting a “deep and entrenched circuit conflict,” but it joins in the funeral home’s position that Title VII sex discrimination does not encompass gender identity discrimination.17 In doing so, it asserts an argument the Sixth Circuit specifically rejected: that because Congress did not specifically contemplate gender identity when it enacted Title VII, the statute does not reach so far.18 Although somewhat overlooked, the panel’s analysis may have implications for schools and other institutions where accommodations for transgender and transitioning status individuals are sought. Citing Dodds v. United States Department of Education,19 the court recounted that case’s application of Smith when it denied a stay of a preliminary injunction ordering a school district to treat an elevenyear old transgender girl as a female and allow the student to use the girls’ restroom. Dodds held that sex stereotyping based on gender non-conforming behavior was unlawful, a principle which the court has now explicitly tied to transgender and transitioning status. While it remains to be seen how the Supreme Court will address these cases, employment decisions impacting transgender and transitioning people will be closely scrutinized.


ENDNOTES: Id. at 572. 883 F.3d 100 (2d Cir. 2018). 16 No. 17-13801 (11th Cir. July 18, 2018). 17 Brief for the Federal Respondent in Opposition, pp. 11, 17 (filed October 24, 2018). 18 884 F.3d at 577. 19 845 F.3d 217 (6th Cir. 2016). 14 15

By Matthew T. Crawford Esq. Coolidge Wall Co., LPA Cc-Chair DBA Labor & Employment Committee

March 2019 Dayton Bar Briefs


For the


Spotlight Robert "Buzz" Portune ESQ. Gottschlich & Portune LLP

Leading Through Action M M

ost Tuesdays are forgettable. For the refugees and asylees who meet with Robert “Buzz” Portune at Catholic Social Services of the Miami Valley, it is anything but. On Tuesdays, Buzz meets with refugees and asylees fleeing to the United States from countries all over the world. In a typical day, he meets with anywhere from five to seven clients, as well as a few “drop ins,” who need his services for green card applications, travel documents, and reunification applications. His clients face language barriers and separation from all that is familiar as they assimilate into this country. Some appointments end ecstatically as was the case with a refugee family from the Democratic Republic of Congo who left with the green card applications for a young mother and her toddler ready to be filed. Some appointments end in disappointment, yet hopefulness, as Buzz works to find a way for a client (an immigrant who arrived under the asylum process who does not qualify for an automatic “refugee” fee waiver) to otherwise qualify for a waiver of the DHS filing fee of over $1000. Failure to pay or receive a waiver for the fee will put a halt to the residency process. Other appointments end in frustration as a set of parents, separated from their children who remain in Somalia, begin the long, challenging, and uncertain process of filing for reunification to be with their children again. For these clients, the Tuesdays they have an appointment with Buzz are anything but forgettable, they are the beginning of a new life. In the course of less than two years, Buzz learned a new area of the law in order to help his clients. For most of his career, Buzz practiced in the areas of labor and employment, business law, media law, construction, and public sector law. Along with Gary Gottschlich and John Mohr, Buzz founded


Dayton Bar Briefs March 2019

the firm Gottschlich & Portune. He now spends his time helping immigrants with their legal challenges. Since he began volunteering a year and a half ago, Buzz has prepared 374 green card applications, with 130 issued and approved by USCIS (United States Citizenship and Immigration Services – a division of the Department of Homeland Security), 6 travel documents, with 5 issued, and 20 family reunification documents, with 2 approved and in the process of receiving Visas from a US Embassy in the Middle East to allow immigration to the United States. After a rally at Courthouse Square in early 2017 where he heard an inspiring speech by Dave Chappelle, Buzz began to look for a way to become involved. He decided to volunteer at Catholic Social Services of the Miami Valley after learning of their need from Annie Foos, the wife of one of the attorneys with his firm. CSSMV is an organization in the Miami Valley which provides a variety of services to the community, some of which are welcoming and resettlement services for refugees, asylees, and immigrants. Buzz states, “Catholic Social Services has a wonderful ability to reach out and find jobs, housing, and provide a network for immigrants.” Buzz is the only attorney to volunteer immigration legal services with CSSMV, which at times can be overwhelming. A 2017 change in USCIS’s application of the law requires an attorney or accredited representative to file the paperwork needed for the immigration process thus eliminating previous volunteers who were not licensed attorneys. As a result, his services are now in constant demand. From the initial intake through receiving a green card, Buzz ensures that the proper documents are correctly prepared and filed with each application.

He provides additional services that help to make the process easier such as responding to additional information requests from USCIS, providing directions to where the client must go in order to complete the fingerprinting step in the application process, speaking to the Bureau of Motor Vehicles about drivers’ licenses, helping with qualifications for schools and applications for higher-education grants, and giving general advice when needed. Because of the high demand and the lack of volunteers, Buzz is grateful to his firm for providing him with the technology/research tools, and occasional clerical assistance that is needed to help those he serves. He is also thankful for the welcoming introduction, early training and ongoing support of staff and current and former volunteers at CSSMV, the help of the Dayton-Montgomery County Public Health nurses and staff who help immigrants with their medical needs that are required as part of the application process, and the willingness of (in Buzz’s words) the “real immigration attorneys” in town who he turns to for questions, advice and referral. He especially appreciates the assistance of Congressman Michael Turner’s staff, especially his liaison staff for immigration and refugees and Visa assistance.

Why did you feel called to become involved with immigration law?

I was raised by loving parents, educated by caring nuns, and am blessed with a wife, children and grandchildren who taught (and continue to teach) me that being a Christian is more than going to church on Sunday. And I have practiced law for forty-six years and

continued on page 15


FOR THE GOOD: ROBERT PORTUNE ESQ. continued from page 14

have devoted my life to a profession which is committed to providing volunteer (pro bono) legal assistance to those who cannot afford it. In early 2017 when the travel ban was imposed to try to keep out certain categories of people who wanted to come to this country, I attended an immigration rally at Court House Square and quickly realized I had a choice – I could stay on the sidelines and merely feel helpless – or I could find an area where I could meaningfully contribute. This is where I ended up. I think it is important as lawyers that we demonstrate to those who have fled countries where there is terror, famine, genocide, and lawlessness that this Country – this USA – stands for the “Rule of Law,” the recognition of basic human dignity, and the right to be a part of this community and this nation.

what is truly rewarding. During the initial interview, that person immediately knows that someone is looking out for them.

Being the person who can reduce the stress that a refugee or immigrant has to feel being in a strange country and being unfamiliar with its laws. It is great to be able to hand a green card to someone, but the initial interview is

I started out knowing nothing and thus had to learn everything about the green card process, the need for travel documents (similar to passports) if you are in this country as a refugee or asylee and want to travel overseas,

What is the most rewarding part of your work?


What is the most challenging aspect of your work?

The frustration of the complex and intertwined myriad of laws Congress has enacted and the difficulty of navigating this maze. When faced with a complex immigration system, when English is not your native language and when legal assistance either is not available or unaffordable, the program I assist at CSSMV becomes the only available remedy for those seeking permanent residency, the ability to travel, or reunification with those family members remaining behind in the refugee camps. So, the requests for help are constant.

and the complex process of family reunification. And, of course, I am continuing to learn something new every day. But while it initially was a struggle it was and is very do-able if you have (and want to take) the time to familiarize yourself with the process.

What is your advice for attorneys who are looking to get involved?

Give me a call and come see me on Tuesdays when I meet with immigrants at CSSMV. I will be pleased to explain what I do and share what I have found to be a challenging and truly rewarding experience both personally and professionally as I wind down my career as a lawyer in the Dayton community.

What did you need to learn in order begin practicing immigration law?

By Morgan Napier UDSL Spring Extern, Gottschlich & Portune, LLP

March 2019 Dayton Bar Briefs


DBA Past Presidents

Catching Up With DBA Past Presidents Patrick W. Allen (1992–1993) T T

he Bar Briefs Editorial Board has decided that an occasional backward glance at some of the Dayton Bar’s past presidents would satisfy our members’ need for nostalgia and perhaps enhance their perspective on the present period. Pat Allen was, and remains, a giant of the plaintiff ’s personal injury bar. In his long tenure with the E. S. Gallon firm he was continually in court trying one product liability or personal injury case after another with a remarkable record of success. It was Joe Buchanan who represented General Motors in Workers’ Compensation matters against other members of the Gallon firm who persuaded Pat to follow Roger Makley as the DBA President in the 1992-1993 term. Pat describes the Bar presidency in those days as more of an honor or recognition than as a staggering workload burden. There were fewer steps on the ladder to that position, and there were fewer responsibilities once that position was reached. The administration of the association was the domain of Sharrón Cowley who in 1975 had assumed that role. There were a myriad of changes in the profession during the span of time between 1975 and the early 1990s, not the least of which was a transition from lawyer advertising as a subject of ethical violations to a subject of common and accepted practice. Pat remained focused on his trial practice during his term of office, and he expended his efforts as President on trying to spur the participation of members of the bar in bar activities. The DBA still held monthly luncheons to provide fellowship


Dayton Bar Briefs March 2019

and topical presentations for its members, but attendance at those luncheons had declined as the number of Dayton lawyers had expanded. In the early days of the local bar the death of a member often brought the entire bar together at the courthouse for a memorial event where memories were shared and eulogies were offered. That tradition had long passed by the 1990s. As part of his efforts to spur fellowship among the members of the Dayton Bar, Pat in his role as President arranged a retirement party for Judge Love who left the bench during Pat’s term. It was a memorable event which should have become a precedent to change the more common approach to transition which lets old lawyers and judges, like old soldiers, simply fade away. The transition which Pat feels had the greatest impact on the local bar during his lifetime was the transition from his tenure as President to the tenure of Beth Schaeffer who succeeded him and became the first woman to be President of the Dayton Bar. It was during Beth’s tenure in 1993-1994 that the local association became more dedicated and proactive on critical issues facing the profession. A new Executive Director was engaged, and a robust committee structure was brought to life. Pat gave us the gift of fellowship and self-identity as members of a specific professional group. Beth brought us into the brave new world of the Twenty-First Century.

By David C. Greer Esq. Bieser Greer & Landis, LLP DBA Editorial Board 937.222.7902

Greater Dayton Area Diversity and Inclusion Legal Roundtable Mock Interview Program By Simeon Lyons – 3L University of Dayton School of Law


oo often, students interviewing for employment have all of the skills and requirements for a position, but fail to get the job because of an interview that did not leave the right impression. On February 2, 2019, the Greater Dayton Area Diversity and Inclusion Legal Roundtable and the University of Dayton School of Law (UDSL) chapter of the Black Law Students Association (BLSA) partnered to hold a mock interview program in order to help solve this problem. Through the program, each participating student was provided with three separate opportunities to interview with and receive instant feedback from different legal professionals. After each interview, the professional provided feedback to student on how she or he did and where to improve. Besides interviewing, the students were able to network with the legal professionals and heard from Magistrate Judge Michael Newman. Judge Newman discussed the work of the GDLR and offered very encouraging words to the students as they conduct their job searches. In addition to Judge Newman, I would like to thank the following professionals for participating as interviewers:

• Hon. Judge Gerald Parker – Montgomery County Court of Common Pleas • Julius Carter – Julius L. Carter Co., L.P.A. • Joshua R. Schierloh – Sebaly Shillito & Dyer • Nicholas J. Endsley – Sebaly Shillito & Dyer • Martin J. Gehres – City of Dayton • Zack Heck – Taft Stettinius & Hollister LLP • Carla Maragano – The Law Office Montgomery County Public Defender • Jessica Salisbury-Copper – Thompson Hine LLP • Jennifer Maffett-Nickelman – Thompson Hine LLP • Terry Posey, Jr. – Thompson Hine LLP • Ashley Weyenberg – Thompson Hine LLP Finally, I would like to give a special thanks to Christine Haaker, Wray Blattner, and Jamar King for agreeing to host the program at Thompson Hine LLP and for going above and beyond to make the program a success. Because of their collective efforts, along with those of the GDLR and BLSA, students were able to gain invaluable experience and tips for interviewing. This partnership will be sure to continue to in the future.

If you are interested in becoming a DBA Annual Partner, like Gold Partner Thompson Hine LLP., please contact: Sally Dunker DBA Executive Director sdunker@daybar.org 937.222.7902

continuing legal education Friday, March 1, 2019 | 8:30am - 4:30pm

2019 Annual Probate Law Institute 6.5 General Hrs Sinclair Community College, Building 12 DBA Member - $240 NonMember - $325 Passport Holder - $30 *Materials will be available in electronic format.

Spring into action!

Earn CLE Anytime, Anywhere.

Monday, March 4 | 1:00pm - 4:15pm (video replay)

Intellectual Property for General and Corporate Practitioners

3.0 General Hrs, incl. 1.0 Hr Professional Conduct DBA Member - $105 NonMember - $150 Passport Holder - $0 Monday, March 11 | 1:00pm - 4:15pm (video replay)

Criminal Rules by the Number – Pretrial Proceedings 3.0 General Hrs DBA Member - $105 NonMember - $150 Passport Holder - $0

Monday, March 18 | 1:00pm - 4:15pm (video replay)

The Rules of Evidence

Take up to

12 hours of self study credit.

A great variety of programs to choose from.

Online CLE programming allows you to take CLE courses on a wide variety of topics, any time of the day, any day of the week!

3.0 General Hrs DBA Member - $105 NonMember - $150 Passport Holder - $0 Tuesday, March 19 | Noon-1:00pm

DBA Labor and Employment Committee presents: Fair Labor Standards Act


1.0 General Hr DBA Labor & Employment Committee Member $25 DBA Member $35 NonMember $45 Passport Holder $0 Presenter: Joan Petric, Ohio Department of Labor Tuesday, March 19 | 1:00pm-4:15pm (video replay)

Ethics Case Law Review and New Advisory Opinions 3.0 Professional Conduct Hrs DBA Member $105 NonMember $150 Passport Holder $0

Monday, March 25 | 1:00pm - 3:45pm (video replay)

The Rules of Evidence: All You Even Wanted to Know About Hearsay 2.5 General Hrs DBA Member $105 NonMember $150 Passport Holder $0

Monday, April 1 | 1:00-4:15pm (video replay)


Don't miss these special DBA events

April 12th Domestic Relations Institute May 16th Business Basics Seminar May 31st 2019 DBA Annual Meeting

The Rules of Evidence: Character and Impeachment 3.0 General Hrs DBA Member $105 NonMember $150 Passport Holder $0


Dayton Bar Briefs March 2019


Sinclair Community College

Friday, April 5, 2019

Overcoming Unspoken Biases Beyond Just Conversation Friday, April 5, 2019 @ Sinclair Community College, Bldg 12 Seminar 8:30am-11:45am Luncheon Noon-1:15pm Seminar Agenda:

The Diversity Committee will present a half-day CLE addressing current issues in Diversity regarding Education, American Disabilities Act and Immigration Law.


Diversity and Education Panel & the American Disabilities Act - Implicit Bias in Schools - School Discipline - Disability Immigration Law and Policy - Immigration Policies - Case Law

Presenters: Robert Cohen Esq., Porter, Wright, Morris + Arthur LLP Professor Charlie Russo, University of Dayton School of Law Professor Janette Cox, University of Dayton School of Law

visit www.daybar.org/cle to register online! www.daybar.org

Keynote Speaker:

Michael E. Carter

Chief Diversity Officer, Sinclair Community College

Topic: Best Practices to Achieve Real Diversity

About the Keynote:

Sinclair Community College President Johnson appointed Michael Carter in 2015 as Senior Advisor to the President and Chief Diversity Officer, having previously served as Sinclair’s first Superintendent of the Division of School and Community Partnerships where he was the driver for the dramatic increase of college credit options for high school students. The number enrolled increased from 500 students to almost 3,000 students in five years. Over his 16-year career at Sinclair, Michael served as Senior Vice President, Senior Director of High School Linkages, and Director of the Fast Forward Center (a nationally recognized model in dropout recovery). In 2010, Michael was awarded NDPC’s Crystal Star Distinguished Leadership and Service Award of Excellence in Dropout Recovery, Intervention, and Prevention. A former public school teacher, administrator and coach, Michael has over 35 years of experience working with youth. Michael holds a BA from Wittenberg University and an MS in education from Wright State. March 2019 Dayton Bar Briefs


From The Judges Desk

Pretrial Innovations By The Honorable Mary Kate Huffman Montgomery County Common Pleas Court


n the last several years a number of courts, counties and states have been sued over what have been described as discriminatory, wealth-based bail systems. The Vera Institute of Justice referred to the year 2017 as “A Breakthrough Year for Bail Reform.” The conversation surrounding bail reform now has grown to a resounding level, forcing courts and legislatures to devote considerable time and effort to exploring the concerns over age-old practices of setting bail and the attendant practices and procedures. Bail reform, though, exists within the broader topic of pretrial justice. A growing movement of reformists question the manner and means that the American criminal justice system embraces in evaluating the accused on the twin purposes of bail – to ensure appearance in court and to protect the public. Many in the criminal justice system, and interested citizens, embrace the concern that bail decisions are influenced by factors not associated with risk for failure to appear or potential harm to the public. Courts, legislatures and activists, overshadowed by budgetary restraints, struggle with proposing, adopting and implementing improvements in long-standing pretrial practices. An early adopter of informed pretrial practices, the Montgomery County Common Pleas Court institutionalized a pretrial assessment and supervision process in 1989. Those accused of felony offenses undergo an interview and assessment by pretrial services officers within hours of entering the jail, and a bond recommendation, based upon the risk associated with the individual defendant, is transmitted to the court, also within hours. Since 2012 the court has utilized the ORASPT tool developed by the University of Cincinnati, a verified risk assessment tool, to aid in informing pretrial bond decisions. Bond recommendations necessarily focus on facts impacting the dual purposes of bail, such as prior criminal record, the facts associated with the charge, history of failure to appear in court,


Dayton Bar Briefs March 2019

and various personal stability concerns. While the recommendation of the pretrial staff does not supplant the discretion of the court, risk assessment tools continue as a valuable piece of the information needed by the court to determine bail. The court may set a cash bond, or consider the accused for pretrial supervision. Individual needs necessarily influence bond as well as supervision criteria. Pretrial supervision may include conditions such as drug testing, residing in a specified location, a prohibition against contact with any victim or co-defendant, electronic detention, and periodic reporting to a pretrial services officer. Pretrial supervision allows the court to divert low-risk offenders from the Montgomery County Jail while awaiting trial or disposition of their case, with the ultimate goal of reducing the collateral consequences to low-risk offenders from pretrial incarceration. That is not to say, though, that the court ignores risk – all judges remain mindful that there are simply some accused of a crime that necessarily should endure confinement prior to trial, based upon the particular risk that defendant may pose to a victim, the public, and the integrity of the criminal justice system. Other courts in Montgomery County have embraced the importance of implementing improvements in pretrial practices. The Dayton Municipal Court, under the leadership of Administrative Judge Deirdre Logan, in partnership with the General Division of the Common Pleas Court, now utilizes a pretrial recommendation for assisting in bail determinations for violent misdemeanor offenses. The General Division of the Common Pleas Court continues to work with the municipal courts throughout the county to create cooperative pretrial practices. In late 2017, the stakeholders in the Montgomery County justice system began a systemic evaluation of local pretrial procedures with the objective of closing any gaps in existing practices and improving the mean-

ingful implementation of the best practices in pretrial services. Known as the “Pretrial Innovations Team,” the group, consisting of judges from both the Common Pleas and Municipal Courts, pretrial supervision staff, jail staff, prosecutors, public defenders, court administrators, treatment and community partners, meet monthly to discuss and address challenges in our existing practices and to institutionalize change and efficiencies where identified. To date, the team has focused on improving the timeliness and efficiency in assessing for bond recommendations individuals detained in the Montgomery County Jail, as well as improving the communications between the stakeholders to resolve gaps in the pretrial process. The team’s focus also includes improving communication with defendants in an effort to secure appearance at hearings, trials, and to pretrial and probation appointments, with the goal of reducing failures to appear and, thus, the potential for time in the Montgomery County Jail. The Ohio Supreme Court has also recognized the importance of evaluating pretrial justice in the state. Acknowledging the need for education, increased resources, and improved practices and procedures in pretrial services, the Ohio Supreme Court will hold a Pretrial Justice Summit in April, 2019 to offer stakeholders throughout the state the opportunity to hear from national experts on a variety of topics including legal and evidencebased pretrial justice, pretrial assessments, using data in assessing pretrial programs, and resourcing an effective pretrial justice system. The Chief Justice of the Ohio Supreme Court, Maureen O’Connor, has also formed a Task Force to Examine the Ohio Bail System to evaluate current bond and pretrial practices. The Task Force will study the bail and pretrial systems used in other jurisdictions, the review of Crim. R. 46 governing bail, with the objec-

continued on page 21


FROM THE JUDGES DESK: Pretrial Innovations continued from page 22


tive of determining whether bond schedules should be eliminated from use in municipal courts, whether the Court should mandate the use of verified risk assessment tools to aid in bond decisions, and to recommend any amendments to the Criminal Rules or bond practices in Ohio. After participating in the Midwest Pretrial Justice Reform Summit in May of 2018, a gathering of judges, court administrators, and court staff from around the Midwest, and learning of the woeful state of affairs in many jurisdictions relating to funding and evidence-based approaches to bail, I reached the conclusion that, in Montgomery County, we are “doing it right.” The Montgomery County Common Pleas Court has embraced the evidence-based pretrial practices encouraged by researchers – we utilize practices shown to work, and have discarded those not

demonstrated to have any positive effect on the purposes of bail. The implementation of the Pretrial Innovations Team serves to demonstrate the commitment of those involved in the criminal justice system in Montgomery County to meaningful pretrial improvements, while recognizing the critical concern of protecting victims and the public.

EDITOR'S NOTE: The opinions in this piece are those of Judge Huffman and do not represent the opinions of any other person or judge.

842–A E. Franklin Street Dayton, Ohio 45459

Professional Investigative and Legal Support Services Firm

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

Celebration of Life Memorial Luncheon Wednesday May 18th


March 2019 Dayton Bar Briefs


Local Law Related Events

University of Dayton Pre Law Program

Friday-Sunday, March 15-17, 2019 Hamilton, Ohio The University of Dayton Pre-Law Program is looking for attorneys to judge in one or more of the four rounds of our Opening Round Championship Series (ORCS) in Hamilton, OH. • Round One, Friday, March 15th at 5:30pm (dinner available at 5pm) • Round Two, Saturday, March 16th at 9:00am (continental breakfast at 8:30am) • Round Three, Saturday, March 16th at 1:30pm (lunch available at 1pm) • Round Four, Sunday, March 17th at 9:00am (continental breakfast at 8:30am)

Five teams will proceed from this prestigious tournament to be among the 48 competing at the Nationals in Philadelphia. No prior experience is required; meals will be provided during judges’ training sessions. To volunteer, please contact Judge Dan Haughey (Butler Area III), haugheylaw@gmail.com or contact our office at 937-229-4229 with any questions you might have.

2019 Paralegal Day Celebration

Thursday, April 18, 2019 Platinum Sponsor 11:30am-1:00pm Sinclair Community College, Bldg 7 $250 includes: ten tickets to the event $100 tax deduction

It's time to celebrate the Paralegal profession! Please join the Sinclair Paralegal Sponsor Program Gold at Sinclair for lunch, a silent auction, keynote speaker, and the awarding of the 2019 Paralegal of the Year Award. $150 includes: five tickets to the event $75 tax deduction


Celebration Thursday, April 18, 2019 11:30 am - 1:00 pm Sinclair College Building 7, room 7-006 ABC 444 W. Third Street Dayton, Ohio 45402

Nominate an outstanding paralegal on your staff - Deadline March 23, 2019! www.sinclair.edu/giving/paralegal-day Silver Sponsor   $75 includes: two tickets to the event $45 tax deduction

All sponsors will have their firm’s logo or the individual’s name in the event program.

Individual Ticket $15

Greene County Court: Train Your Boss Seminar It’s time to celebrate the Paralegal profession! Please join us at Sinclair for lunch, a silent auction, keynote speaker, and the awarding of the 2019 Paralegal of the Year award.

Parking available for everyone in the student lots.

*Lunch Provided*

Save the Date! May 3, 2019 8:30am - 12:00pm Payment accepted via check payable to: Sinclair Foundation - Paralegal Day

Mailed to: Sinclair College Paralegal Program Building 5-141, 444 W. Third Street Dayton, Ohio 45402

First Annual Train Your Boss Seminar. A Seminar for Probate Paralegals and Legal Assistants. Pay Online: www.sinclair.edu/giving/paralegal-day

Presented by: The Deputy Clerks of Greene County Probate Court *More information to follow.

Nominate an Outstanding Paralegal on your staff for the Paralegal of the Year Award!


To nominate, go to:

937.222.7902 Dayton Bar Briefs March 2019 www.sinclair.edu/giving/paralegal-day Deadline for submissions is March 23, 2019


Have you joined a DBA Committee?

BOOKS FOR SALE 73--91 S. Ct. (1952--'70) with West key-notes and 1--131 L.Ed.2d (1956--'95) w. headnotes for sale Contact: Diane K. DePascale 937.223.0966 Diane@DePascaleLaw.com

OFFICE SPACE AVAILABLE Three offices available in Kettering, ranging from 90SF to 135SF. Rent starts at $270/month for the smaller unfurnished office, slightly more for the furnished and larger offices. Rent includes all utilities, internet, access to the waiting area and conference room. Email Sean@ seanmmccauleylaw.com for more details.

FORENSIC CLINICAL PSYCHOLOGIST James Daniel Barna, Ph.D., J.D. 47-years experience 2nd opinions Expert rebuttal witness jamesdanielbarna.com All Courts (937) 236-0085

POSITION AVAILABLE Dayton area law firm has an opening for an associate attorney. This individual will be responsible for an independent caseload and client interaction as well as working under the direction of firm partners. Applicant should be hard working and have excellent writing skills. Send resume and writing samples to: Simon Patry, Dysinger & Patry, LLC, 249 S. Garber Drive, Tipp City, Ohio 45371 or spatry@dysingerlaw.com.

LOCAL COURT RULES Dayton Municipal Cour t 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 NUMISMATIC CONSULTATION AND APPRAISAL SERVICES Does your client have a collection of coins, currency, exonumia, precious metals or other money related items? Numismatic appraisals our specialty. Consultation on the orderly disposition and liquidation of numismatic assets. 937-878-8784 www.coinologist.com


STUNNING OFFICE SPACE AVAILABLE Local law firm looking to share existing office space. Class A, 4 offices with 2 conference rooms. Phone and internet included, collaboration on Administrative resources available. Fairfield Commons, second floor. Contact Holly Potter 614.737.2900 WELL APPOINTED THREE ROOM OFFICE Professionally decorated private suite with two large offices and front reception office with built in credenza. Private records storage area. Ample parking with at door access. New bathrooms. Privately owned/managed. Utilities and janitorial included. North Main Street area. $1,500 monthly. Jeffw@donwrightrealty.com (937) 474-8122.

Join Today and Lend YOUR Voice to the Conversation!

March 2019 Committee Meeting Dates Fri. March 1 @ 11:30am Public Service & Congeniality

Wed. March 13 @ Noon Federal Practice

Mon. March 4 @ 4:00pm Juvenile Law

Thurs. March 14 @ Noon Domestic Relations

Tues. March 5 @ Noon Diversity Issues

Thurs. March 14 @ 5:30pm @ Coco's Bistro Real Property

Tues. March 5 @ Noon Young Lawyers Division (YLD) Tues. March 19 @ Noon Labor & Employment Law Thurs. March 7 @ Noon Workers Comp & Social Security Wed. March 20 @ Noon Criminal Law & It's Enforcement Tues. March 12 @ 5:30pm Civil Trial Practice Thurs. March 28 @ Noon Law & Technology Wed. March 13 @ Noon Appellate Court Practice

for more meetings details, visit:


March 2019 Dayton Bar Briefs


members on the move



Thompson Hine LLP is pleased to announce Nathan E. Holmes has been elected to the partnership. Nathan, a member of the Tax and Employee Benefits & Executive Compensation practice groups in Dayton, focuses principally in two areas—executive compensation and tax-exempt organizations—but he also has broad experience in U.S. federal income tax planning for various business transactions. In his executive compensation practice, he helps public companies, large private companies and nonprofit organizations attract, retain and incentivize key executives through arrangements such as equity and cash incentive plans, deferred compensation plans, executive employment agreements and change-in-control agreements. He also represents a variety of taxexempt organizations, including employer-sponsored disaster relief funds, corporate foundations, arts organizations, educational institutions, trade associations and social welfare organizations.

Green & Green, Lawyers is pleased to announce the addition of Elizabeth L. “Liz” Otis as Associate Attorney. A Dayton native, Liz received her bachelor’s degree from Wright State University and graduated from the University of Dayton School of Law in 2014. She is admitted to practice in Ohio, as well as before the U.S. District Court for the Southern District of Ohio and the Sixth Circuit Court of Appeals. Liz’s practice focuses on general litigation. Liz is a member of the Ohio State and Dayton Bar Associations, as well as the Carl D. Kessler Inn of Court. She also serves on the University of Dayton School of Law Alumni Board of Directors.

FREUND, FREEZE & ARNOLD is pleased to announce the following: For more info contact Shannon Bockelman 937.913.0116 sbockelman@ffalaw.com







Six lawyers from the firm of Freund, Freeze & Arnold are named 2019 Super Lawyers: Neil Freund, Gordon Arnold, Susan Blasik-Miller, Chris Carrigg, Shawn Blatt, and Steve Freeze. No more than five percent of the lawyers in Ohio are selected to be Super Lawyers. Neil Freund is one of the firm’s founding shareholders. He has more than 45 years of experience in litigation and has tried and won hundreds of jury trials involving commercial and business cases, catastrophic personal injury cases, death cases, professional malpractice, civil rights cases, products liability defense, employment law cases, and white-collar criminal matters. Neil was also listed in the Top 50 Cincinnati Super Lawyer and Top 100 Ohio Lawyers for 2019. Gordon Arnold is one of the firm’s founding partners. He has more than 40 years of experience in business litigation, with a particular emphasis in construction cases, bad faith litigation against insurance companies, and insurance coverage for trucking companies. Susan Blasik-Miller is the firm’s CEO and has been practicing law for over 30 years. In addition to being selected as a Super Lawyer, she is also ranked in the Top 25 Women Lawyers in Cincinnati. She has extensive experience in civil litigation, defending physicians, hospitals, long term care providers, businesses and employers in a wide variety of cases. Christopher Carrigg is the firm’s President. He has considerable trial to verdict experience throughout Ohio, including cases of wrongful death, products liability, construction, premises liability and auto accidents. Shawn Blatt is a shareholder of the firm with 27 years of litigation experience. He is a trial attorney with concentrations in construction law, architect & engineer professional liability, product liability and general negligence claims as well as insurance coverage disputes. Stephen Freeze is one of the firm’s founding partners, and the firm’s Chairman of the Board. He has more than 40 years of experience in civil litigation, including the areas of bad faith, business litigation, construction and employment law, insurance and related defense, legal malpractice, premises and products liability as well as school law. MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted online: www.daybar.org/MembersOnTheMove and are subject to editing. These accouncements are printed as space is available. DBA ADVERTISING: For advertising in the Dayton Bar Briefs or any other DBA Publication- Discount rates are available! Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org 24

Dayton Bar Briefs March 2019


Expand, Explore, Experience YOUR DBA in the New Year! GUDORF LAW GROUP, LLC is pleased to announce the following: For more info contact Ted Gudorf 937.898.5583 tgudorf@GudorfLaw.com



Gudorf Law Group, LLC is pleased to announce attorney Ted Gudorf J.D., LL.M. has been recognized by Ohio Super Lawyers magazine as one of the top attorneys in Ohio for 2018 in the Estate Planning and Probate category. Ted is the owner of Gudorf Law Group, LLC., which specializes in estate planning, tax advisory, and elder care. He is the co-author of Ohio Legacy Trusts 101 published in 2015 by Ohio Lawyer. He has also been recently published in Indiana Prairie Farmer with an article titled “Plan to Protect Your Farm.” Gudorf has also been certified as a specialist in estate planning, trust, and probate law by the Ohio State Bar Association. Gudorf Law Group would also like to announce, the hiring of attorney Rachael A. Houck, J.D., to oversee its Elder Law Department. Houck spent nearly fifteen years of practice in respected Columbus, Ohio law firms. In addition to overseeing the Elder Law Department at Gudorf Law, Houck has been tasked with assisting Managing Attorney Ted Gudorf in expanding the firm’s Crisis Services Department, including broadening the department’s scope of services in Medicaid and nursing home related matters. Houck is a member of the National Academy of Elder Law Attorneys (NAELA). SUBASHI WILDERMUTH & JUSTICE is pleased to announce the following: For more info contact Legal Administrator Erin Mullett 937.427.8800 emullett@swohiolaw.com

SAVE THESE DATES! MARCH 2019 Friday, March 1st @ 9:00am Annual Probate Law Institute Friday, March 1st @ 11:30am Chancery Club Luncheon


APRIL 2019


Nick Subashi of Subashi Wildermuth & Justice has been elected President of the Ohio Chapter of the American Board of Trial Advocates (“ABOTA”). ABOTA is a by-invitation only association of experienced plaintiff ’s and defense attorneys from across the State of Ohio and the nation. It is committed to fostering and preserving civility among trial lawyers and the right to trial by jury enshrined in the Seventh Amendment of the U. S. Constitution. In addition, for the tenth straight year, Nick has been included in Super Lawyers and Best Lawyers in America in the fields of civil litigation (defense), Education Law, and Commercial Litigation. Brian L. Wildermuth, of Subashi Wildermuth & Justice has been selected to the Top 50: 2019 Cincinnati Ohio Super Lawyers list. Each candidate is measured against 12 indicators of peer recognition and professional achievement. Nominees from more than 70 practice areas are considered.

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Eikenbary Trust.........................................................11 Ferneding Insurance................................................23 LCNB Bank...................................................................5 Mary KC Soter...........................................................21 National Processing Solution..................................5 www.daybar.org

Friday, April 4th @ 11:30am Chancery Club Luncheon Friday, April 5th @ 9:00am Diversity Day Friday, April 12th @ 9:00am Domestic Relations Institute

MAY 2019 Friday, May 10th @ 11:30am Chancery Club Luncheon Wednesday, May 15th @ 11:30am Celebration of Life Memorial Luncheon Thursday, May 16th @ 11:30am Business Basics Seminar

OBLIC..........................................................back cover R.L. Emmons & Associates......................................21 Rogers McNay Insurance..........................................21 Trisha M. Duff - Mediations.....................................13

Friday, May 31st @ 6:00pm Annual Meeting

March 2019 Dayton Bar Briefs


law-related organizations Dayton Bar Association Foundation

Help Build Our Foundation. T T

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

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Life Essentials Guardianship Program

- Legal Aid of Western Ohio (LAWO) - Law & Leadership Institute

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

- Wills for Heroes

University of Dayton School of Law


Dayton Bar Briefs March 2019


Greater Dayton Volunteer Lawyers Project

Our Current Debtor’s Prison Default Judgments on Collection Accounts Legal Remedies

By Charles Roedersheimer Esq. Honorary DBA Member


n 1833 federal laws banned the practice of incarcerating individuals for failing to pay a debt. However, not until 1983 did the U.S. Supreme Court decide that the Fourteenth Amendment banned states from jailing debtors who fail to pay their debts. Despite this Supreme Court’s decision, the Ohio Supreme Court found it necessary as recently as 2014 to issue a bench card for Ohio judges with instructions on alternatives other than jail for low income individuals who did not pay their debts. Despite the “outlawing” of debtor’s prison, low income individuals still face a form of debtor’s prison with the increasing reliance of consumers on credit. It is now a standard practice for creditors seeking collection of debts that are more than 180 days old to write off of the debt and, thru bulk sales of thousands of debtor accounts, place these debts with debt collection agencies. Debt collectors purchase the debts for pennies (1 to .1 % of the face value of the debt). Debt collection agencies then pursue collection thru demand letters followed by collection lawsuits if the debtor fails to pay up. The National Consumer Law Center reports that debt collection practices generated more than 850,000 complaints to the Federal Trade Commission (“FTC”) in 2016 and such are the largest percentage of the complaints made to the Consumer Finance Protection Bureau (“CFPB”) over the last five years. Debt collection lawsuits are now the most prevalent civil lawsuits filed in the United States and certainly that prevalence exists in Ohio courts. Significantly, annual debt collection lawsuits in our 50 states number in the millions with most filed in local small claims or common pleas courts. Studies of the results of collection lawsuits in New York City and several states between 1967 and 2010 reported that 70 to 95% of these lawsuits resulted in default judgments in favor of the debt collector because the consumer never responded to the complaint. The default judgments lead to a form of debtor prison for consumers who do not or cannot pay their debts. Why? The judgment is usually recorded as a judgment www.daybar.org

lien which is followed by garnishment or recording of the lien to preserve the right to collect the debt from anywhere from 5 to 15 years under Ohio law which effectively can hold the consumer hostage for the debt for many years. The GDVLP has recognized that the increasing number of debt collection lawsuits are a significant problem for low income residents of our metropolitan area. These lawsuits are a concern to our community because lower income consumers are the most targeted group for debt collection lawsuits and they fail to recognize the long term consequences of failing to respond to collection complaints. Of course they rarely have the income to pay the debt or retain an attorney. More importantly, in many of these lawsuits the individual may have a valid defense to the debt claim but is unaware of such and of course forfeits that defense by not responding to the complaint. In my volunteer efforts for the GDVLP over the past several years, I have assisted individuals or been made aware of cases where the debt complaints were filed that are beyond the Ohio statute of limitations for collections ; lacked sufficient documentation to establish ownership of the debt in the complaint; included excessive fees and charges applied after purchase of the debt or the debt collector cannot provide supporting documentary evidence to support the claim. There have also been lawsuits filed against the wrong person due to a person fraudulently using the named defendant; claims filed in the wrong jurisdiction; and where the debtor was never served with the complaint. In all of these cases the assistance of an attorney to identify deficiencies in the complaint; deficiencies in supporting documents; lack of proper service of process; or simply to effectively advocate the personal or financial problems of the consumer has resulted in either dismissal of the complaint; settlement of the debt that the consumer can afford to pay; or guidance to seek bankruptcy because of other debt burdens the individual discloses. While volunteering to assist at the GDVLP debt clinic benefits the persons you

assist by resolving the stress of the short or long term financial burden (garnishment or judgment lien) of the debt, it is also rewarding to the assisting attorney personally and sometimes financially. Filing of a lawsuit beyond the statute of limitations or against the wrong person can provide not only a defense to the claim but support a Fair Debt Collection Practice Act (FDCPA) counter claim. A successful FDCPA claim provides recoverable statutory and actual damages for the person and attorney fees which are all paid by the debt collector filing the claim. Volunteering is easy. The GDVLP provides the training you need and paralegal support. You can watch a video from the comfort of your own home or office. All documents clients need are drafted in pro se form for them to file with the court. There is no expectation to take cases one-on-one, but you can take a case that interests you and, if a case has facts that reveals an FDCPA claim as noted previously, it would be in your interest to do so. The debt clinics are currently scheduled once a month for 10 months of the year and only take about two hours of your time. You can also earn CLE credit for the hours you provide. If you are willing to contribute some of your time to serving the low-income community contact Christina Cox at 937-461-3857. ENDNOTES: Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L.Ed.2d 221 (1983) See ACLU Report, February 5, 2014. The report also references a study it conducted in 2010, “The Outskirts of Hope” which study identified five counties in Ohio that were jailing defendants who could not or did not pay fines or fees. 3 See National Consumer Law Center Report, “Consumer Debt Collection Facts, February 2018, https://www.nclc.org/issues/consumer-debt-collectionfacts.html (citing national and state statistics on debt collection consumer complaints and lawsuits). 4 National Consumer Law Center Report, “Consumer Debt Collection Facts”. 5 A judgment from an Ohio court is valid for 5 years, and then becomes dormant unless revived by the judgment-creditor (O.R.C. § 2329.07). Once dormant, the judgment-creditor has 10 years to revive an Ohio judgment (O.R.C. § 2325.18(A)). Ohio gives non-Ohio judgments full faith and credit after the foreign judgment is filed in an Ohio state court. Once filed, the timelimit rules for foreign judgments are the same as Ohio judgments (O.R.C. § 2329.021 through 2329.027). The Statute of Limitations for other states varies from 4 to 20 years depending on whether the statutory limit and whether judgment can be renewed or revived. 6 Ohio Statute of Limitations (“SOL”) for debts vary and can be confusing. For Written Contracts – 8 years for contracts executed after September 28, 2012 and September 28, 2020 for any pre September 2012 dated contract (pre September 2012 written contracts previously had a 15 year SOL). ORC § 2305.06; For Oral Contracts- 6 years. ORC §2305.07; For promissory and demand notes it is 6 years after 1) a demand, after the last payment on the note, 2) the due date, or 3) the accelerated due date. ORC §1303.6; For Installment Sale of Goods Agreements -4 years. ORC §1302.98 and 1317.01;[note that Ohio courts have applied both the Installment and Demand Note SOL to credit card collection lawsuits although 6 years is usual SOL applied]; For Foreclosure deficiency balances – 2 years after foreclosure judgment. ORC §2329.08 1 2


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Profile for Dayton Bar Association

March 2019 Dayton Bar Briefs Magazine  

The official publication of the Dayton Bar Association.

March 2019 Dayton Bar Briefs Magazine  

The official publication of the Dayton Bar Association.