Nov/Dec 2025 Dayton Bar Briefs Magazine Vol. 75 No. 2

NOV/DEC 2025 The Off icial Magazine of the DBA

Clarifying the Burden: Ohio's Evolving Self-Defense Doctrine Post-State v. Messenger TRUSTEE'S MESSAGE Listen, Discern, Lead pg 4

corporate counsel

for the good

Tariff Escalation Clauses: Contract Strategies for a Volatile Trade Environment

Walter Reynolds Receives OSBF Award

pg 8

pg 17

BarBriefs DBA Board of Trustees 2025-2026 Jamie H. Greer President

Jeffrey T. Cox First Vice President

Erin B. Moore Second Vice President

Joanna L. Garcia Secretary

Victoria L. Nilles Treasurer

Will P. Allen Member–at–Large

Toby K. Henderson Member–at–Large

Douglas S. Jenks Member–at–Large

Christopher M. Wolcott Member–at–Large

Hon. Michael J. Newman Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

B A R B R I E F S i s p u b l i s h e d by t h e Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the DBA office. The DAYTON BAR BRIEFS is published September/October through SEPT/OCT. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy Chief Executive Officer Shayla M. Eggleton Director, Communications & Membership Phone: 937.222.7902 www.daybar.org The contents expressed in the publication of DAYTON BAR BRIEFS do not reflect the official position of the DBA.

VOL.

75

nov/dec 2025

NO.

2

Contents Columns:

4

Listen, Discern, Lead

By Jeff T. Cox Esq. FARUKI+ PLL

26

AI and the Law: From Siri to Sanctions

By The Honorable Mary Montgomery Montgomery County Common Pleas Ct Gen Div

TRUSTEE'S MESSAGE

JUDGE'S DESK

Features:

6

BARRISTER

8

CORPORATE

10 16

What DEI is and What it is Not

By Dianne Marx Esq. & Deztany Johnson Esq. Pickrel Schaeffer & Ebeling Co., LPA

DEI

18

Derek Muncy Esq. Bieser Greer & Landis, LLP

By Samuel Saul Richardson Esq. Shelby County Public Defender & Sinclair College

RISING STAR

DOMESTIC RELATIONS

24 SJI

Tariff Escalation Clauses: Contract Strategies for a Volatile Trade Environment

By Latashia Love Esq. Coolidge Wall Co., LPA Clarifying the Burden: Ohio's Evolving Self-Defense Doctrine Post - State v. Messenger

By Anthony VanNoy Esq. The VanNoy Firm

CRIMINAL

22

The Honorable David Brannon Montgomery County Probate Court

By Thomas J. Intili Esq. Intili Law Group, a Legal Professional Association

When Tracking Turns Criminal: Understanding the Impact of R.C. 2903.216 on Ohio Families

By V. Elizabeth (Liz) Flynn Esq. Kirkland & Sommers Driving Equity Forward: Reflections on Join and Thrive 2025

By Carl GoraleskI Esq.

Get These On Your Calendar Today! REGISTER: daybar.org

Also In : This Issue

5 2025 Fall/Winter Calendar 11 Last Chance to Upgrade MAX+ This Year - Deadline 12/1 12 Champagne Toast New Admitee Reception 12/4 13 Holiday Luncheon 12/11 14 UDSL Annual Holiday Gift Column 17 New Feature! For the Good 20 2025 - Jan 2026 CLE, Meetings & Events 25 New Feature! Chair Chat 28 Law Related Organizations Dayton Bar Foundation Greater Dayton Volunteer Lawyers Project

31 Classifieds & Members on the Move

2025-2026 DBA Annual Partners BIESER GREER & LANDIS LLP biesergreer.com

Since 1854, Bieser Greer & Landis LLP has helped clients resolve legal challenges efficiently and effectively—both in and out of the courtroom. The firm emphasizes strong client relationships and practical solutions, avoiding unnecessary disputes that add cost without value. Guided by the principle “Never mistake motion for action,” Bieser Greer & Landis focuses on what matters most: understanding each client’s goals and delivering strategic, results-oriented advocacy.

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.

WILMERHALE wilmerhale.com

WilmerHale is a leading international law firm with over 1,100 lawyers across 12 offices in the United States and Europe. Their attorneys operate at the intersection of government, technology, and business, delivering world-class legal and client services. WilmerHale is dedicated to fostering a culture of opportunity, inclusion, and collaboration, drawing on the diverse backgrounds and exceptional talent of our team. WilmerHale, promotes an entrepreneurial spirit and collegial environment while encouraging a strong commitment to public service—through pro bono work, government service, teaching, and support for public institutions and charitable organizations. Their continued focus on excellence has earned them a top spot on The American Lawyer’s 2025 A-List.

nov/dec 2025 | DAYTON Bar Briefs

3

TRUSTEE'S MESSAGE

Listen,, Discern, Lead Listen A

little over six years ago, in the wake of the 2019 Oregon District our individual opinions and beliefs, that we do not listen to those around us, shooting, I wrote an opinion article that ran in the Dayton Daily both near and far, who have differing opinions and understandings than ours.

News entitled "A Plea for Civility in an Increasingly Uncivil Nation."

And so, I ask, for all those issues that seem to so quickly divide us, ought The impetus for that article was my concern that our growing partisan dis- not we be able -- all of us -- to recommit to less hair-trigger judgments and course was fueling a rapid devolution of our national unity and threatening aggressions towards one another? We have much to be proud of as a Nation. the stability of our Republic.

And together, we can work to improve the lives of our fellow Americans and In the intervening time a lot has happened that has challenged and those around the world who are struggling. But we cannot be all that we further strained societal norms in our nation and throughout the world; the aspire to be for one another or toward one another if we care not for each global pandemic weighed heavily in this regard. The isolation caused by the other. We must strive and work to become a less fractious people, to not be COVID-19 lockdown significantly altered the course of human interactions so quick to judge and to not act first with hostility, acrimony and levelling of and interpersonal engagement and accelerated and embedded an increasing accusations at one another. As I wrote in 2019, we must take responsibility reliance on "smart devices" for our relationships with one another. Other for the words we use because those words are powerful and when spoken or factors, of course, also have stressed and strained our personal and communal written with the aim to harm, they are weapons that can tear through the relationships including economic uncertainties, deepening political fractures fabric of society. Ill spoken words have destroyed nations, launched world and heightened rhetoric. And, of late, a sickening re-emergence and escala- wars, torn apart families and friendships, destroyed lives and led to all mantion of political violence. ner of aggravation and aggression.

The themes I discussed in my 2019 article continue to animate my thinkLawyers have a special place and responsibility in society to help our coming about how to better take part in the public forum. As a leader for our munities understand and abide the laws that allow us to coexist in peaceBar Association, I wanted to re-visit in brief the points I sought to address ful harmony. These responsibilities belong not to any one political party, in 2019 as they continue to have resonance for me in my daily living and in or person, or philosophical persuasion. We have the responsibility to be contemplation of my professional responsibilities. So, I share those observa- people of conscience and to passionately and openly consider the rightness tions as something to consider here, again, in 2025; maybe a point or two of certain issues confronting not only our nation but our local communities will resonate with you, too. and the challenged populations we live among; it is also our responsibility to I believe that as members of the legal profession we are uniquely equipped advocate for the whole of our society's needs in a positive and direct manner. to help our communities, our region, and our nation to elevate our civic As a profession I believe we bear a burden – one we each freely and discourse beyond the current contentiousness and hostility. Indeed, as law- openly accepted when we swore an oath as a member of the Bar, to exercise yers we have been educated to understand the importance of the words we our best judgment for our clients and, I contend, for the communities we choose to use and the effect they will have on those who read and hear them. serve; to strive to work ethically and to be of good character. If we do so, I We also have been taught to understand and support our nation's organic believe we can be examples for our families, friends and others, in how to documents, to understand and support the Rule of Law, and the delicate bal- work and to live constructively and collegially, even when our points of view ance of our tripartite system of government. It is our responsibility as legal may seem quite disparate. It is not enough to merely pay lip service to the professionals to advocate, formally and informally, for an abiding respect for task before us – to reduce the risk of destructive speech and behavior and this delicate balance that allows us to live in a free and open society. I have animosity. But if we accept the challenge and do the demanding work of found that one of the most effective tools that I have (and often do not use listening, discerning, and leading, then we have the chance, the opportunity, in the first instance) is the capacity to listen and discern before speaking. to improve the lives of those around us. And I submit, that is a laudable, All too often, and seemingly even more so of late, we are so committed to indeed, monumental opportunity, for our noble profession.

“

By Jeff T. Cox, Esq. FARUKI+ jcox@ficlaw.com 4

DAYTON Bar Briefs | nov/dec 2025

We must take responsibility for the words we use because those words are powerful, and when spoken or written with the aim to harm, they are weapons that can tear through the fabric of society.

nov/dec 2025 | DAYTON Bar Briefs

5

The Honorable David Brannon N

o professional male aspires to languish in the shadow of his father’s career. In sports, Barry Bonds, Junior Griffey and the Manning brothers emerged from that shadow. Pete Rose, Jr. did not. For Judge David Brannon, the shadow cast by his father Dwight was large. In his book, Sluff of History’s Boot Soles, David Greer described Dwight Brannon as Dayton’s “most energetic, prolific and controversial” plaintiff ’s lawyer of his era, a reputation no son of his could easily eclipse much less match. Yet, in his own way, Judge David Brannon has risen to Dwight’s prominence in the Dayton legal community, much to Dwight’s great pride and admiration.

Judge Brannon is a lifelong Dayton-area resident. Born and bred in Centerville, he graduated from Centerville High School in 1998. In the fall of that year he entered Miami University graduating four years later with a Bachelor of Arts degree double majoring in political science and public administration, and minoring in business legal studies.

After college, David attended the University of Dayton School of Law. Upon his graduation in 2005, he contemplated a career as a lawyer in the United States Air Force, but chose instead to join his father’s law firm. It was perhaps a natural choice. Dwight’s passion for the practice of law is palpable and infectious. The law is a part of Dwight’s very persona. For a time, Dwight practiced law out of the family home whereby David observed his father’s commitment to his clients and their causes first hand. As a student, David assisted Dwight in his practice with emerging law office technologies. In particular, David recorded and produced day-in-the-life videos for use in Dwight’s catastrophic injury cases.

6

DAYTON Bar Briefs | nov/dec 2025

So it was that David began his practice as a general practitioner in his father’s firm.

Nevertheless, David soon distinguished himself as the office’s go-to lawyer in probate and estate matters. Within five short years, David embarked on a legal quest on behalf of a decedent’s mother and stepfather that would conclude with the establishment of new law in the Ohio Supreme Court.

In Leblanc v. Wells Fargo Advisors, LLC, the decedent originally designated his mother and stepfather as the beneficiaries of two individual retirement accounts. When he married, the decedent designated his wife as the IRAs’ sole beneficiary. However, in contemplation of divorce, the decedent notified Wells Fargo, the IRAs’ custodian, of his intention to revert his mother and stepfather as the beneficiaries. The decedent completed the beneficiary forms, but committed suicide before returning them to Wells Fargo. The mother, stepmother and wife sued to recover the IRAs’ proceeds whereupon Wells Fargo interpleaded the money.

The Montgomery County Common Pleas Court granted summary judgment for the wife and the Second District Court of Appeals affirmed. David appealed to the Ohio Supreme Court, argued the case, and won reversal for his clients. In resolving a conflict between the Second and Ninth Appellate Districts, the court followed the Ninth holding that when the custodian of an IRA interpleads against persons claiming to be its beneficiaries, a person who proves that the owner clearly intended to designate him or her as the beneficiary is the one entitled to recover. See, Leblanc v. Wells Fargo Advisors, LLC, 134 Ohio St. 3d 250, 981 N.E.2d 839 (2012), syllabus.

In another notable case, David represented a child born out of wedlock whose father was murdered. When the father’s estate was opened, the child was not listed as next of kin. Over the following three years, David established paternity post-mortem in the Montgomery County Juvenile Court, then proved the child worthy of a substantial portion of the father’s estate in probate court.

In 2019, the sirens of the courthouse lured David to run for the probate judgeship that retiring Judge Alice McCollum was vacating. In 2020, David was elected to that judgeship in a contested race. Observers of that campaign noted with interest Judge Brannon’s fervent pursuit of that judgeship as well as his commitment of substantial financial resources toward his election.

As judge, David soon learned that his newly elected position involved far more than deciding cases and administering estates. He oversees a clerk’s office and the decision making of five magistrates. He is spending a considerable amount of time with information technology specialists tasked with updating the court’s e-filing and case management system. He is also deeply committed to the court’s mental health and civil commitment docket. In that role, Judge Brannon has perhaps made his biggest contribution.

Pursuant to R.C. § 5122.10 a person with a mental illness who represents a substantial risk of physical harm to himself or others if allowed to remain at liberty may be taken into custody and transported to a psychiatric facility for examination. The paperwork associated with temporary emergency commitments is known generically as a “pink slip.” Upon examination,

continued on page 7

a qualified clinician must determine whether the pink slipped individual should be subject to a civil commitment order. A court referral must occur within three days of the temporary detainment.

In Montgomery County, pink slipped individuals subject to a court order are referred to the Probate Court’s mental health civil commitment docket. In those proceedings, a determination is made as to whether the referred individual should be required to participate in an assisted outpatient treatment program (“AOT”). AOTs are established by a court, or a division of a court, for the purpose of monitoring the referred individual’s compliance with a mental illness treatment plan.

When called upon to preside over civil commitment cases, Judge Brannon recognized that proper administration and oversight of AOTs conflicted, or potentially conflicted, with certain confidentiality and ethics rules. For example, proceedings in open court almost certainly violated a referred individual’s state and federal rights of confidentiality. Additionally, direct communication between judges and referred individuals arguably violated judicial prohibitions on ex parte communications. Appreciating these conflicts, Judge Brannon collaborated with Justice Sharon Kennedy in promulgating Rule 79.01 of the Rules of Superintendence. Under Rule 79.01, enacted just last July, courts are empowered to establish local rules to facilitate communications between a referred individual and court personnel. The rule also enables courts to conduct confidential proceedings and maintain confidential information and records.

In just his first term in office, Judge Brannon has established himself as an important member of the Ohio Association of Probate Judges, a core group of jurists who preside in Ohio’s sixteen probateonly jurisdictions. Within that organization, Judge Brannon is a frequent educator on matters pertaining to probate judging, court administration, and topics related to mental health and civil commitment.

Judge Brannon attributes much of his court’s successful operation to the wisdom and judgment of his magistrates, and to the orderliness and diligence of the court clerk, deputy clerks, the court’s administrator, and the entire Probate Court staff.

In his spare time, Judge Brannon is committed to his family and participates in hunting and fishing excursions with his father, his brothers, and David and Jamie Greer.

Although those of us of a certain age speak nostalgically and often of father Dwight, these days, the Brannon family name is spoken most often in reference to the Montgomery County Probate Court and its esteemed jurist. In a relatively short time, Judge David Brannon has distinguished himself throughout Ohio as a leader among his brethren and is now casting a large shadow of his own.

MCBDDS Disability Pride Rally 7/25/2025

Typical Friday Courtroom Adoptions (Aug. 2025)

Centerville High School Career Fair (Mar. 2025)

New efile and case management system installation.

By Thomas J. Intili Intili Group, a Legal Professional Association Editorial Board Chair tom@igattorneys.com

nov/dec 2025 | DAYTON Bar Briefs

7

corporate counsel

Tariff Escalation Clauses: Contract Strategies for a Volatile Trade Environment A New Era of Trade Volatility

Tariffs have roiled global trade for many years, but in 2025 we are seeing renewed volatility and escalation of trade tensions. The US and several trading partners have reimposed or expanded tariffs on goods such as steel, aluminum, automobiles, and electronics. These shifts have created waves across supply chains, raising costs, impacting deliveries, and disrupting contracts.

For industries dependent on international sourcing – manufacturing, construction, and technology – the financial impact can be severe. Suppliers are seeing prices rise mid-contract, while fixed-price agreements leave little room for adjustment.

The takeaway is clear: tariff risk is now a routine business concern, not a rare event. And for many businesses, one contractual tool has become indispensable – the tariff escalation clause.

By Latashia Love Coolidge Wall Co., LPA Co-Chair, Corporate Counsel love@coollaw.com

The Essential Elements of a Strong Tariff Escalation Clause A tariff escalation clause allows the contract price or underlying goods price to adjust when external cost pressures, such as new or increased tariffs, materially affect performance. Every industry and contract is different, but certain features consistently make escalation clauses effective and enforceable.

1. Be Specific About the Trigger Perhaps the most important term in a price escalation clause is the trigger, i.e., when is the clause activated?

Avoid vague terms like “unexpected cost increases.” Instead, define exactly what qualifies as a “Tariff Event.”

2. Define a Cost Baseline Set the “baseline” – the cost level against which changes are measured. Use supplier quotes, published indices like the Producer Price Index published by the Bureau of Labor Statistics (PPI), or the prevailing market price on the contract date. A defined baseline prevents later arguments about that costs were “expected” under the agreement.

8

DAYTON Bar Briefs | nov/dec 2025

3. Establish Thresholds and Caps To balance risk, include both a threshold (the increase must exceed a set percentage, such as 5%) and a cap (a maximum total adjustment, such as 15%).

Adding threshold and cap limits make the clause predictable creating a known maximum exposure and reinforces the idea of shared responsibility.

4. Specify Notice and Documentation Procedures Your tariff escalation clause should provide procedural clarity for how and when notice of a trigger event must be provided and what supporting documentation should be shared and maintained. Additionally, the triggering party may provide the non-triggering party with audit or verification rights to confirm the legitimacy of a price escalation.

5. Allow for Schedule Adjustments Tariffs can delay imports or compel re-sourcing. A tariff escalation clause that adjusts costs but not delivery schedules may leave a contractor in breach. Include a provision granting reasonable extensions of time for tariff-related disputes.

6. Harmonize with Force Majeure Provisions Force majeure clauses typically provide for time relief only – not monetary recovery. Be sure to like your tariff escalation clause to your force majeure clause to ensure contract consistency and reduce interpretive conflict.

7. Flow Down to Subcontractors and Supply Agreements In multi-tiered projects, inconsistent clauses between prime and subcontract levels can create unrecoverable risk. The prime contractor may be entitled to an adjustment upstream but have no corresponding right downstream (or vice versa). Consistent flowdown language avoids a gap risk.

8. Address Both Increases and Decreases Balance is key to enforceability and fairness.

Your tariff escalation clause should provide for downward adjustments if tariffs are reduced or eliminated. Courts tend to view symmetrical cost escalation clauses more favorably.

continued on page 9

Ongoing Contract Management

The DBA Board of Trustees have recently approved the following for DBA Membership:

Even with an escalation clause, managing tariff exposure requires active contract management. Consider these complementary approaches: • Identify Exposure Early. During negotiations, identify which materials or components are tariff-sensitive and tailor the tariff escalation clause to those categories of goods.

• Shorten Price Validity Periods. Bids and quotes should expire quickly to prevent pricing based on outdated tariff conditions.

• Monitor Trade Developments. Assign responsibility for tracking tariff announcements and government notices; early awareness enable prompt notice and documentation.

• Amend Long-Term Contracts. For continuing relationships or master agreements, negotiate amendments to incorporate tariff escalation language.

Conclusion

Tariffs are a durable component of modern trade policy.

Treating tariff exposure as a foreseeable legal risk – not an exceptional event – is best practice.

A carefully drafted tariff escalation clause can:  Allocate risk transparently and equitably;  Provide clear procedures for cost and time adjustments; and  Reduce litigation risk by defining relief mechanisms in advance.

The volatility of global trade is beyond the parties’ control – but the allocation of its consequences is not. Thoughtful drafting today can prevent costly disputes tomorrow.

ATTORNEYS:

Nicole M. Amrhein Brian Scott Hicks Adam Sadlowski Katherine Armstrong Kathleen Hopkins Daniel Schoeni Dan J. Benjamin Jesse Michael Kufeldt Joshua T. Shaw Gerald Burch Thomas Meade Mike VanderHeijden Lucas Christensen Allison D. Michael Laura Vlieg Ghassan J. Deek Damek P. Mitchell Heather Washington Hannah Fard Evan R. Pennington Aaron Wayalat Yuanyuan (Kate) Ren Irene Wong Erin C. Renneker

LAW SCHOOL GRADS:

e!

Save the Duaal t

2026 Ann Meeting l a u n n A A B D June 3, 2026 of Dayton iv n U t t io r r a @M REGISTER! annualmtg 6 2 / g r .o r a b y da

Dana Branstetter Emily Ivey LAW STUDENTS:

73 New Law Students!

PARALEGAL STUDENTS:

13 New Legal Studies Students!

The DBA is proudly serving 1,450 members! nov/dec 2025 | DAYTON Bar Briefs

9

COVER STORY: criminal law

Clarifying the Burden: Ohio's Evolving Self-Defense Doctrine Post - State v. Messenger

T

he law of self-defense in Ohio has undergone a significant transformation in recent years. The General Assembly’s 2019 amendments to R.C. 2901.05 reversed a century-old rule by shifting the burden of persuasion in self-defense claims from the defendant to the prosecution.

In 2022, the Supreme Court of Ohio’s decision in State v. Messenger, 2022Ohio-4562, clarified how this burden operates in practice and the extent to which it alters jury instructions and trial strategy.

Together, these developments mark a doctrinal realignment with broad implications for criminal practitioners. This article reviews Ohio’s statutory and common law framework for self-defense, analyzes the Messenger decision, and highlights its practical consequences for criminal cases.

I. Statutory Foundation: R.C. 2901.05 and the Modern Rule

By Anthony S. VanNoy Chair, Criminal Law Section The VanNoy Firm avannoy@thevannoyfirm.com

elements, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense.

III. State v. Messenger: A Clarifying Decision

The Ohio Supreme Court addressed this amended burden framework in State v. Messenger, 2022-Ohio-4562. The case arose from a fatal shooting in which the defendant claimed self-defense. At trial, the trial court gave a general instruction on the prosecution’s burden to prove guilt beyond a reasonable doubt but did not provide a specific instruction stating that the prosecution had the burden to disprove self-defense.

The defendant appealed, arguing that the trial court erred by failing to give a separate instruction emphasizing the State’s burden regarding selfdefense. The court of appeals reversed the conviction, finding the instructions inadequate. The Ohio Supreme Court reversed and reinstated the conviction.

Justice DeWine, writing for a unanimous court, held that once the issue of self-defense is properly raised, the prosecution bears the burden of disproving it beyond a reasonable doubt — but this does not require a special or separate jury instruction. The standard jury instruction on the State’s overall burden of proof suffices, so long as the instructions properly reflect that the defendant has no burden to prove self-defense.

Importantly, Messenger emphasized that self-defense remains an affirmative defense, even though the burden of persuasion lies with the prosecution. This distinction preserves the requirement that the defense present some evidence before the issue is submitted to the jury.

In 2019, the Ohio General Assembly amended R.C. 2901.05 to provide that once a defendant raises self-defense, the State bears the burden to disprove it beyond a reasonable doubt. Specifically, R.C. 2901.05(A) states: “A person is allowed to act in self-defense… and the prosecution has the burden of proving beyond a reasonable doubt that the accused person did not act in self-defense…”

This was a significant change. Under prior Ohio law, self-defense was an affirmative defense that the defendant had to prove by a preponderance of the evidence. Ohio was among a minority of jurisdictions placing this burden on the accused. The amendment aligned Ohio law with the majority rule across the United States.

It is important to note that while the burden of persuasion now lies with the State, the burden of production remains on the defendant. In other words, IV. Practical Implications for Defense Lawyers the defense must introduce some evidence supporting each element of selfFor defense counsel, Messenger underscores the importance of meeting the defense to raise the issue before the burden shifts. threshold burden of production. While the ultimate burden of persuasion now lies with the State, the defense must first offer sufficient evidence to support II. The Three Elements of Self-Defense each element of self-defense. This may come from the defendant’s testimony, Ohio recognizes self-defense as an affirmative defense rooted in necessity. witness accounts, surveillance footage, or forensic analysis.

To invoke it in a non-deadly force case, the defendant must present evidence Defense attorneys should also remain attentive during the jury instruction supporting the following elements: phase. Although Messenger approved standard jury charges, practitioners may 1. Imminence of harm – The defendant must have reasonably believed that still seek clarification or modifications to ensure the jury does not mistakenly they were in immediate danger of unlawful force or harm. assign the burden of proof to the defendant. Clear closing arguments should 2. Proportionality – The amount of force used must be proportional to the reinforce that the State must disprove self-defense beyond a reasonable doubt. threat. Deadly force is justified only when the defendant reasonably believes For prosecutors, the revised framework introduces new litigation risks. The it is necessary to prevent death or serious bodily harm.

State must be prepared to address self-defense affirmatively — even when the 3. Non-aggressor status – The defendant must not have been the initial ag- facts appear to favor conviction. Cross-examination of the defendant and rebuttal evidence become crucial in challenging the credibility of the self-defense gressor or provoked the confrontation.

If any one of these elements is not supported by evidence, the claim may fail claim. Prosecutors should also tailor their closing arguments to emphasize as a matter of law. However, once minimal evidence is introduced on all three how the evidence disproves one or more required elements of the defense.

10

DAYTON Bar Briefs | nov/dec 2025

continued on page 11

Finally, for trial judges, Messenger provides clear guidance on jury instructions. Courts need not craft special language addressing the burden of proof on self-defense, provided the instructions as a whole correctly reflect the law. Nonetheless, courts must ensure that their instructions do not inadvertently mislead jurors into believing the defendant bears any burden of persuasion.

V. Conclusion: A Realignment with Majority Rule

The 2019 amendments to R.C. 2901.05 and the Supreme Court’s decision in State v. Messenger represent a realignment of Ohio law with national norms on self-defense. The defendant’s burden to prove self-defense has been lifted; the prosecution must now disprove it beyond a reasonable doubt once raised.

While the doctrine remains rooted in familiar principles — imminence, proportionality, and non-aggression — the legal framework surrounding its application has shifted. Ohio practitioners must adjust their litigation strategies accordingly, especially when self-defense is a live issue at trial.

As Ohio courts continue to interpret and apply Messenger, questions may remain about the threshold for raising the defense and the evidentiary standards needed. But the core message is clear: when properly invoked, self-defense must be disproved by the prosecution — and no longer must a defendant prove the justification for their own survival.

A-L

ng

eporti

CLE r

year!

nov/dec 2025 | DAYTON Bar Briefs

11

UPCOMING EVENTS

12

DAYTON Bar Briefs | nov/dec 2025

register at daybar.org

nov/dec 2025 | DAYTON Bar Briefs

13

Curated by Adin Alexander Feliz J.D. Candidate UDSL Class of 2026

14

15

dei

What DEI is and What it is Not Photos from DBA Conversations on Diversity event on Oct. 3rd

By Dianne Marx marxdianne@gmail.com

By Deztany Johnson Pickrel Schaeffer & Ebeling Co-Chair, New Lawyers Div. djohnson@pselaw.com

O

n January 20, 2025, Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs,” was signed.

It abolished DEI offices, programs, and initiatives in federal agencies. On that same day, Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit Based Opportunity,” was also signed. This order, among other things, rescinded a 1965 executive order requiring affirmative action obligations by federal contractors and directed that a “strategic enforcement plan” be prepared to identify “other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil rights laws.” This latter executive order asserted that “critical and influential institutions of American society . . . have adopted and actively use dangerous, demeaning, and immoral race and sex based preferences under the guise of so called ‘diversity, equity, and inclusion (DEI), or ‘diversity, equity, inclusion, and accessibility’ (DEIA). . .” Id. Shortly after these executive actions, many federal agencies removed references to the words “diversity,” “equity” and “inclusion” from their websites. Thereafter, corporations, universities, law firms, and non profit organizations followed suit: scrubbing their digital presence of DEI terminology, adjusting or renaming DEI departments, altering program descriptions and in some cases eliminating DEI initiatives entirely.

Although litigation is ongoing, many have assumed that DEI is now defunct - “dead,” “finished,” “kaput,” much like past practices such as court ordered busing or quotas. As might be expected, polarization has deepened: critics often characterize DEI programs as unfair, alleging that they prioritize identity over merit with so called “DEI hires,” constitute “reverse discrimination” sometimes attributing broad social or institutional failings such as mid-air plane collisions or the Los Angeles fires to DEI. Proponents, in turn, frequently counter that critics are misinformed or acting from prejudice and emphasize the necessity of DEI to correct historical and systemic inequities.

Yet the terms “diversity,” “equity,” and “inclusion” themselves remain neutral and foundational to democratic ideals.

Properly understood, DEI is about expanding access and ensuring fair opportunity, not guaranteeing outcomes. In a correctly designed and implemented DEI program, there is no mandate to hire or promote based on “race-and sex-based preferences,” and as a result these programs do not advance individuals who are not qualified, “DEI hires,” simply be16

DAYTON Bar Briefs | nov/dec 2025

continued on page 17

MEMBER SPOTLIGHT Know a lawyer who's creating impact beyond the courtroom?

Contact Shayla Eggleton seggleton@daybar.org

cause they are members of a marginalized group. In other words, DEI seeks to widen the pool of applicants, remove unnecessary barriers, and ensure that the most qualified candidates are not overlooked due to bias or lack of access. It is not a system of quotas, guaranteed results, or reverse discrimination.

DEI is also not affirmative action. Indeed, in 2023, the Supreme Court decided Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, which essentially abolished decisions based on race by finding that the use of race in affirmative action programs in college admissions is unconstitutional under the Equal Protection Clause of the 14th Amendment. By contrast, DEI—when faithfully implemented— focuses on creating fair processes, not race-based outcomes.

In its intended implementation, DEI initiatives, originally created in the 2010s, are designed to create a level playing field, guarantee merit-based hiring and promotions, and provide opportunity for all applicants. They are meant to help organizations recognize and mitigate unconscious bias, ensure that decisionmakers cast a wide net for talent, and foster environments where individuals from different backgrounds can contribute fully. (They are also intended to ensure that free speech and criticism of such programs are not stifled for fear of being labeled a racist, sexist, or homophobe.)

Research has also shown that organizations with diverse and inclusive teams tend to perform better financially, generate more innovative ideas, and are more effective in problem-solving. In this sense, DEI is not only a matter of fairness but can also promote organizational strength and competitiveness.1 Thus, what DEI is: a framework for ensuring fairness, broadening access, cultivating inclusion, and strengthening organizations through diverse perspectives. What DEI is not: a quota system, a guarantee of advancement regardless of merit, or an erosion of standards.

In stark contrast to those who have removed DEI language, the Dayton Bar Association continues to affirm its commitment.

Its webpage states that it “supports the full and equal access to and participation by individuals in the Association, the legal profession and in the justice system regardless of race, gender, ethnicity, national origin, religion, age, sexual orientation, gender identity, or disability.” Under its current leadership, in June 2025, the DBA established a Diversity, Equity and Inclusion Section.

If you care about what diversity, equity, and inclusion really mean; if you wish to understand how to explain and promote these principles in your practice and community; if you aim to foster cross-racial, gender, age and cultural understanding; if you want to develop tools to recognize and break down stereotypes, then join the Diversity Equity and Inclusion Section of the DBA. The meetings are via Zoom. Send an email to Samantha Mims, smims@daybar.org and ask her to include you in the next meeting.

On Friday, October 24, 2025, in Columbus, Ohio, the Ohio State Bar Foundation awarded its prestigious Excellence in Diversity and Inclusion Award to Dayton attorney and former DBA President, Walter Reynolds, partner at the law firm of Porter Wright. The award is given annually to an attorney who has significantly advanced diversity, equality and inclusion within the legal system and community. It celebrates vision and the cultivation of these principles, honoring individuals who have made a lasting impact in promoting a more diverse and equitable legal profession and society in Ohio.

A graduate of Wilberforce University and the University of Dayton School of Law, Walter is an accomplished practitioner in both state and federal courts and has received numerous professional recognitions including Best Lawyers in the area of Bankruptcy and Creditor Rights/Insolvency and Reorganization Law. Although he is well known in the greater Dayton community for his service on numerous non-profit and governmental boards, Walter’s reputation extends beyond this work and is best summed up by his nominator and fellow attorney, Gary Leppla of Leppla Associates:

“Walter has dedicated his career to fighting for the underserved. He is a moral force for fairness and diversity in the Dayton legal community. He is primarily a bankruptcy lawyer but his passion for racial justice exists over and above his work. Whether it be courageously speaking out, quietly driving events and fundraising,or lobbying for racial justice, Walter is the hero to all Dayton lawyers.”

Congratulations to Walter Reynolds and to his wife Emma, who Walter credits with any success he has had in his professional career, to their three children, Leslie, Lindsey, Alex and grandson, Julius.

______________________________ ENDNOTES:

1.Hunt, V., Prince, S., Dixon-Fyle, S., & Yee, L. (2023). Diversity wins: How inclusion matters. McKinsey & Company. Retrieved from https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diversity-matters-even-more-the-case-for-holistic-impact; Lorenzo, R., Voigt, N., Schetelig, K., Zawadzki, A., Welpe, I., & Brosi, P. (2018). The mix that matters: Innovation through diversity.

Boston Consulting Group. Retrieved from https://www.bcg.com/publications/2018/how-diverse-leadership-teams-boost-innovation; Rock, D., Grant, H., & Grey, J. (2016). Diverse teams feel less comfortable — and that’s why they perform better. Harvard Business Review. Retrieved from https://hbr.org/2016/09/diverse-teams-feel-less-comfortable-and-thats-why-they-perform-better; Great Place to Work. (2023). Why diverse and inclusive teams are the new engines of innovation. Retrieved from https://www.greatplacetowork. com/resources/blog/why-diverse-and-inclusive-teams-are-the-new-engines-of-innovation; Nembhard, I. M., & Edmondson, A. C. (2019). Making it safe: The effects of leader inclusiveness and professional status on psychological safety and improvement efforts in healthcare teams. Journal of Organizational Behavior, 40(7), 825–846. https://www.ucdenver.edu/docs/librariesprovider68/defaultdocument-library/jmna-articles-bonuscontent-2.pdf

nov/dec 2025 | DAYTON Bar Briefs

17

Derek Muncy

Bieser Greer & Landis, LLP

F

rom humble beginnings to literally building the future he wants to see, Derek Muncy possesses the ability to inspire. From a little town in Fayette County, Derek reminds himself of where he came from through an old map of the county hanging in his office, one that was drawn before US 35 was built and found in his great grandmother’s house.

Derek went to Malone University, where he stayed busy playing football (offensive line), meeting his wife, and graduating in three years despite studying political science, economics, and philosophy. He states that had he not graduated early, he could have taken the time to study an additional subject, showing a drive for wide-ranging knowledge that we will see throughout his life.

Jumping immediately into working for a political 501(c)(3) brought him back to the Dayton area, though he knew he had always wanted to go to law school. Enrolling in the University of Dayton, he completed the 2 year program in order to limit his time away from the workforce. Though this quick turn around did not prevent him from participating in the Honors Program, Student Government, Moot Court, and being a Dean’s Fellow. He had even joked about using his last year of eligibility to try and get on the UD football team. Upon moving back to the Dayton area, and throughout parts of law school, Derek remarked how he had begun driving for Uber on the side, which helped him to learn the city a lot better.

Although everyone may remember their first day at their job, Derek’s first day at Bieser Greer was the day COVID lockdown began, though he’s been there ever since. He splits his work between criminal and civil litigation, again showing the wide-ranging drive for knowledge. In his criminal practice, he participates as appointed counsel for Montgomery County and as a CJA Mentee, which is the appointed list for federal criminal defense work. On the civil side, he focuses on zoning, construction, and real estate litigation currently. Though he had a bit of a culture shock when he first began practicing as a first generation attorney in the city, he has found that his background and experiences allow him to relate to a wide variety of clients from many different backgrounds.

Derek is active within the Dayton Bar Association, participating in the Inns of Court, the Chancery Club, and is an alumnus of the Leadership Development Class. He also participates in the Federalist Society.

Derek took on labor related jobs growing up, mostly farm labor such as baling hay and splitting wood- though that simply sets the stage for what he does in his free time now. Recently, he built his house by himself- with few exceptions for things he’s not interested in or legally able to do himself- and continues to improve upon it. The original plan progressed slightly out of order.

18

DAYTON Bar Briefs | nov/dec 2025

continued on page 19

Derek first built the “barn”- that will eventually become a workshop, gym, garage, and an in-law suite; now though, the family lives out of it while work on the main house continues. “It feels like you’re in the middle of the woods”even though it is in the middle of Clayton. Using his skills from his time processing and selling firewood, he and his wife slowly cleared the lot to build their home. Although he has the help of friends, family, and equipment, this is a job that he’s taken on by himself- in addition to his ‘day job’ of being a lawyer. Though, work is not the only activity on the property as Derek is also a father to two young girls, a 3-year-old and a 4-month-old. “A lot of [the work] was done with a baby strapped to me.” Derek states that some of this knowledge came from growing up doing this type of work, but most is learning as you go, having family teach you, watching YouTube, or simple trial and error.

Here again we see the drive for wide-ranging knowledge.

Outside of law, and house building, Derek also maintains an interest in bourbon, cigars, guitars, and Jeeps. He spends any remaining free time outdoors hiking with the family or bowhunting, including a two-week backpacking trip out west with his wife right before taking the bar exam.. He’s proud of his Irish heritage and opens the Dublin Pub with breakfast and Guiness every St. Patrick’s Day. When asked what advice he has for new lawyers, Derek passed on some advice that he had been given. “Gotta take your licks- it won’t always go your way. But you’ve got to keep showing up and keep trying.” He also points out that it would be weird if you were good at practicing law right out of law school. But fittingly, Derek highly recommended getting as broad an amount of experience as you can to find out what you like and what you don’t.

A rising star that is literally building his future from the ground up with hard work and a drive to obtain a wide-ranging array of knowledge. Only time will tell what else Derek will learn.

By Samuel Saul Richardson Shelby County Public Defender’s Office; Sinclair Community College Co-Chair Editorial Board SSRLaw@outlook.com

nov/dec 2025 | DAYTON Bar Briefs

19

2025-2026 DBA CLE, EVENT

2025 Criminal Law Certification 6.0 Gen Credits (or 6.0 NLT Gen Credits) Designed for attorneys on or interested in the criminal law appointed counsel list, this seminar provides practical guidance for handling appointed criminal cases. Participants will gain insight into Montgomery County procedures, pretrial and trial strategies, case dispositions, specialty courts, and key issues such as record sealing and appeals.

Speakers: Judge Susan Solle

Judge Angelina Jackson

Montgomery County Common Pleas Ct

Montgomery County Common Pleas Ct

Nick Gounaris

Judge Gerald Parker

Gounaris and Abboud, LPA

Montgomery County Common Pleas Ct

Kyle Lennen

Steven Strain

Lennen Law LLC

Montgomery County Public Defenders Ofc

Anthony VanNoy

Candace Anderson

VanNoy Firm

Dir. of Case Mgmt, Montgomery County Common Pleas Ct

John Pinard Pinard and Bryan Law Office 20

DAYTON Bar Briefs | nov/dec 2025

Core Components for New Lawyers 3.0 NLT Credits (incl. 1.0 professionalism, 1.0 law practice mgmt & 1.0 client fund mgmt) The Ohio Supreme Court has mandated that all attorneys admitted by exam to the practice of law in Ohio must complete three hours of instruction that includes one hour of professionalism, one hour of law practice management and one hour of client funds management. This program fulfills this requirement.

AGENDA: 9-10:00am New Lawyer Law Office Management 10-10:05am Break 10:05-11:05am New Lawyer Professionalism 11:05-11:15am Break 11:15-12:15pm New Lawyer Client Funds Management

T & MEETING CALENDAR

nov/dec 2025 | DAYTON Bar Briefs

21

domestic relations

By V. Elizabeth (Liz) Flynn Kirkland & Sommers Co-Chair, Domestic Relations lflynn@kirklandsommers.com

When Tracking Turns Criminal:

Understanding the Impact of R.C. 2903.216 on Ohio Families

P

arents today have access to an array of tools to monitor their children’s locations, with the goal of ensuring their safety and wellbeing. Popular applications such as Life360 and Find My iPhone, as well as physical tracking devices like Apple AirTags or even children’s sneakers compatible with location-tracking technology, can provide real-time information about a child’s location. While these innovations have often been embraced as convenient methods of promoting safety, they now carry potential legal risks in Ohio.

Effective March 20, 2025, R.C. 2903.216 makes it a crime to knowingly install, or cause installation of, tracking devices and applications on another person or their property without their consent.1 Depending on the circumstances of the violation, this statute imposes penalties ranging from a first-degree misdemeanor to a fourth-degree felony.2 The enactment of this provision holds significant consequences for the practice of domestic relations law. Situations involving divorces and dissolutions, disputes over parental rights and responsibilities, and proceedings related to domestic violence may all be impacted by the application of this statute.

What was once a common practice among parents and spouses now presents the possibility of criminal liability, thereby introducing a new and complex dimension to domestic relations litigation in Ohio.

22

DAYTON Bar Briefs | nov/dec 2025

Revocation of Consent: Terminating Marriage and Filing Protective Orders It is not uncommon for couples or spouses to provide one another with consent to share or monitor their respective locations. This may arise out of convenience, mutual trust, or a desire to promote safety. Under Ohio’s newly enacted statute, however, such consent is not permanent and may be subject to automatic revocation if a spouse seeks to terminate the marriage, or if an Ohio protection order is issued against an individual.

When a spouse files a complaint for divorce or a petition for dissolution, the law presumes that any prior consent to location monitoring has been revoked as of the date of filing.3 Once the other spouse is formally served with the divorce or dissolution papers, that individual has seventy-two hours to “lawfully uninstall or discontinue use of the tracking device or tracking application.”4 If the spouse cannot lawfully remove or deactivate the technology, such as when the device is embedded in property they do not own, the statute requires the spouse to notify the court in writing within the same seventy-two-hour time period.5 This safeguard ensures that the court is aware of the continued presence of location-monitoring technology and can address it appropriately within the broader context of the proceeding without imposing criminal sanctions.

R.C. 2903.216(C)(1)(b) further provides that consent to location monitoring is revoked in cases involving protection orders. If a party files for an Ohio protection order, or if a court issues such an order, and the person to be protected under the order is the individual who had previously consented to location tracking, that consent is deemed withdrawn immediately.6 In cases with protection orders, the same seventy-two-hour rule applies: the person who has been served with the protection order must promptly and lawfully uninstall or discontinue use of any tracking devices or applications.7 If the technology cannot be lawfully removed, the individual must provide written notice to the issuing court.8 Together, these provisions reflect the legislature’s intent to prevent location-monitoring technology from being misused once a marital relationship has become adversarial or in cases where a protection order has been deemed necessary. For practitioners, the statute highlights the importance of advising clients not only on the immediate cessation of tracking another’s location, but also on the affirmative obligation to notify the court when lawful removal is not possible. These requirements may become critical considerations in divorce, dissolution, and domestic violence cases, where noncompliance could carry both legal and strategic ramifications.

continued on page 23

Implications on Parenting Decisions

Provisions of R.C. 2903.216(D)(2) may impact parenting decisions in cases where parents are separated or have terminated their marriage. If the parents or legal guardians of a minor child are legally married and are not living separate and apart, they may use location-monitoring technology on the child if either parent or legal guardian consents.9 Additionally, the statute does not apply where a parent or legal guardian is the only surviving parent or legal guardian of a minor child, or has sole legal custody of a child.10 Further, if the parents or legal guardians of the minor child are divorced or separated, and neither parent is the legal custodian of the child, tracking applications and devices may be installed upon the consent of both parents.11 Parents should be advised of an important caveat within the exceptions to R.C. 2903.216. In situations where the parents or legal guardians of a minor child are divorced or living separate and apart, and neither parent is the sole legal custodian of the child— as in cases of shared parenting—use of tracking technology on the child depends on parental consent and allocation of parenting time.12 If only one parent consents to the use of tracking applications or devices on the child, the consenting parent can only use that technology during their own parenting time. The consenting parent should be advised that they must uninstall or disable any location-monitoring technology during the nonconsenting parent’s parenting time.13 This provision emphasizes the importance of advising clients that unilateral decisions regarding the monitoring of a child’s location cannot extend into the other parent’s parenting time.

Failure to comply may expose a parent to criminal liability and, in the domestic relations context, could create additional conflict or be raised as an issue in ongoing litigation. Counsel should be sure to inform clients of both the limits of their rights to consent to tracking and their affirmative duty to suspend use of tracking technology when the child is with the nonconsenting parent.

R.L. EMMONS AND ASSOCIATES, INC. 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

HERBERT M. EIKENBARY

Trust

__________________________________ ENDNOTES: 1. R.C. 2903.216(B)(1) 2. R.C. 2903.216(F) 3. R.C. 2903.216(C)(1)(a) 4. Id. Id. 5. R.C. 2903.216(C)(1)(b) 6. Id. 7. Id. 8. R.C. 2903.216(D)(2)(a) 9. R.C. 2903.216(D)(2)(b)-(c) 10. R.C. 2903.216(D)(2)(d) 11. R.C. 2903.216(D)(2)(e) 12. Id.

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 $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

nov/dec 2025 | DAYTON Bar Briefs

23

social justice

Driving Equity Forward: Reflections on Join and Thrive 2025

This article is one of a series from the DBA’s Social Justice Initiative to inform our membership about, and encourage their participation in, many of the non-profits in our community that address issues of social justice.

If you would like to suggest a non-profit for us to highlight, please contact Samantha Mims smims@daybar.org.

DBA Social Justice Initiative and The Braver Angels presents!

JOIN and

THRIVE!

What makes a healthy society?

Thinking of joining a group?

Learn why the fate of American democracy depends on it.

Come to discover the link between social bonds, a happier life and an improved democracy.

By Carl Goraleski lracllerog@gmail.com

ABOUT THE PROGRAM:

O

n July 21 the Social Justice Initiative Committee of your Dayton The work of the non-profits that attended the event clearly demonstrated Bar Association the wide ranging benefits of participation in an organization which adhosted an event at the University of Dayton’s Fitz Center. The dresses a need in the community. It was apparent from the presentations of title of the event, “Join and Thrive” echoed the theme of the movie “Join the representatives that joining in the work of these and other community or Die”. That film, a documentary based on the work of Robert Putnam, organizations will help our community thrive. As lawyers in the Dayton highlights community we are in a unique position to offer our experience and skills GUESTS INCLUDE:the importance of community connections and club participation.

Braver Angels, one of the organizations who participated in the event to further the work of these community assets. Serving on Boards, joining Steve Baughman, Dayton Hope Station (Substance Abuse Recovery) Jane Kiefer, Artemis Center (Domestic Violence provided excerpts from theSupport) film as part of their presentation. in the work of a particular organization, or contributing financially to their Kelly Zimmerman, Braver Angels (Civil Political Discourse) groups who shared information about their area of community in- causes are all ways in which we can join and thrive. Another very important MoniqueOther Wright, CityHeart (Poverty Alleviation) Dakota Center (Community Engagement) teraction included CityHeart, Co-op Dayton, Dakota Center, Dayton Hope way to contribute to the health and well-being of the community is to join Bonnie Parish, Family Services (Mental Health) Station, and Family Services. Each representative provided an overview of the Social Justice Initiative.

Co-op Dayton (Local Cooperative Development) that group's focus.

CityHeart addresses basic needs like rent, utilities and Several things became apparent as a result of the Committee’s work.

PROGRAM DETAILS: mobility.

Co-op Dayton focuses on economic development through comFirst, the Dayton community has a wealth of non-profit organizations MONDAY RSVP munity The Dakota Center, a presence in Dayton for 60 years, which address most of life's most perplexing challenges. Second, lawyers can JULY 21, cooperation.

2025 By July 18th offers programs across a wide range of ages, from youth to senior citizens. play an important role in the delivery 5:30PM-7PM Dayton Hope Station supports twelve step recovery programs by providing of the services offered by these non-profits. Third, the likelihood that the @ UNIVERSITY OF DAYTON - THE FITZ CENTER 1401 S.place Main St.,to Dayton, OH 45409 a safe meet and eat. Family Services, the longest established nonwork of the Social Justice Initiative will flourish depends, in part, on the profit of those participating, began as an organization to help those who participation of more members of the Bar Association.

QUESTIONS? CONTACT: Samantha Mims, DBA Member Services Coord. were out of work but now provides a myriad of services including counselFor more information on the Social Justice Initiative or any other daybar.org 937.222.7902 (937) 222-2324 smims@daybar.org ling, trauma recovery, and prevention assistance. committee of the Dayton

Join the DBA Social Justice Initiative and Braver Angels for an engaging discussion on the documentary JOIN OR DIE. Explore how strong social connections lead to happier lives and a healthier democracy and learn how you can get involved with local nonprofits tackling issues like mental health, poverty, addiction, and more. Discover why joining a group might be one of the most powerful things you can do—for yourself and for society.

24

DAYTON Bar Briefs | nov/dec 2025

PRACTICE/SPECIAL INTEREST

For more info about becoming involved in a DBA group, contact Samantha Mims at smims@daybar.org

What inspired you to take on a leadership role within the DBA? I was inspired to take on leadership in the DBA alongside Eli Sperry, who has been my supervising attorney since I started my probate practice in 2021. He has been supportive throughout my career so far, and he continues to encourage me to be involved with the local bar, to network with fellow attorneys and area professionals, and to capitalize on leadership opportunities when they appear. When the opportunity to be the co-chair for the Estate Planning, Trust, and Probate Section, I accepted so that I could support Eli in the same way he has supported me.

What’s one goal or project your committee is excited to focus on this year?

I am most excited to continue the EPTP Section’s practice of providing monthly CLEs for practitioners to both earn their necessary credits and to experience different areas of probate law that they may not be as familiar with. The range of possible topics is wide-reaching, and I am excited to work with my co-chair to provide these informed educational sessions.

What’s something most people don’t know about you—legal or otherwise?

Outside of work, I train for Spartan Races. I’m set for my first trifecta in November 2025.

What advice would you give to a new member looking to get involved?

Find a mentor who supports your involvement with professional networking.

If not for my co-chair bringing me along to networking opportunities early on, I likely would not be as comfortable with it as I am now. The earlier in your career, the better!

Anything else you’d like to share about yourself?

I am looking forward to seeing everyone at the EPTP Section CLE sessions!

We're back again helping The FoodBank Dayton fight hunger in the Miami Valley.

Drop off at the DBA this holiday season! nov/dec 2025 | DAYTON Bar Briefs

25

FROM THE JUDGES DESK

AI and the Law: From Siri to Sanctions

M

ost of us have already welcomed artificial intelligence into our daily lives—whether we ask Siri to text a friend, let Alexa remind us of an appointment, or rely on Google Maps to steer us clear of a traffic jam. These tools illustrate how AI has become woven into our ordinary routines, offering instant answers and predictive guidance.

Now, that same technology has arrived in our professional world. Both LexisNexis and Thomson Reuters have integrated AI directly into their research platforms. Lexis+ AI allows lawyers to pose natural-language questions, receive conversational answers, and generate draft documents, all while citing sources from Lexis’s content library. Westlaw Precision with CoCounsel offers similar features, enabling users to explore causes of action, summarize authority, and analyze cases in seconds. For attorneys, the promise is efficiency: quicker research, streamlined drafting, and new ways to interact with complex databases.

By The Honorable Mary E. Montgomery Montgomery County Common Pleas Court - Gen Div mary.montgomery@montcourt.oh.gov

The New Risks of AI in Legal Practice

Yet, with new tools come new risks. While Lexis and Westlaw are building guardrails into their systems, generative AI is not infallible.

Lawyers remain responsible for verifying every citation and quotation before filing. Courts across the country have already confronted the consequences when this step is skipped.

In 2023, the Southern District of New York sanctioned two attorneys in Mata v. Avianca after they submitted a brief filled with non-existent cases created by ChatGPT. In Utah earlier this year, an appellate lawyer faced discipline for relying on fabricated citations. A federal judge in Puerto Rico fined attorneys more than $24,000 after their brief contained dozens of faulty references. And in California, an appellate court found that 21 of 23 quoted passages in a filing were fabricated, leading to what was reported as a record sanction.

These examples underscore a critical point: AI is not being punished—lawyers are. Judges have made clear that the duty of candor to the tribunal, and the obligation to submit accurate law, rests squarely on counsel. Some courts, like the Northern District of Texas, now even require attorneys to certify whether AI was used in preparing a filing, and if so, to confirm that every source was verified by a human lawyer.

26

DAYTON Bar Briefs | nov/dec 2025

continued on page 27

So how should lawyers approach AI in their practice? A few practical suggestions:

1. Use AI as a starting point, not an endpoint. Let it help brainstorm, summarize, or suggest authority—but always pull the case directly from Westlaw or Lexis and Shepardize/KeyCite before citing.

2. Quote from the source, not the summary. Copy language only from the opinion itself, never from an AI draft.

3. Keep a verification log. Note when and how you confirmed citations.

If questioned, you can show your diligence.

4. Be mindful of confidentiality. Avoid pasting sensitive client details into public AI tools. Use versions with safeguards whenever possible.

5. Check local orders. Some judges now require AI certifications with filings.

6. Communicate with clients. If AI meaningfully affects your process or billing, be transparent.

Ethics Rules Haven’t Changed

For Ohio attorneys, the ethical duties are already in place. Rule 1.1 requires competence, and since 2012, the ABA has explicitly included in Model Rules of Professional Conduct 1.1 cmt.8 that lawyers need to keep abreast of changes, “[including] the benefits and risks associated with relevant technology.” Rule 3.3 (candor) and Rule 4.1 (truthfulness in statements to others) leave no room for error: submitting a fabricated case is misconduct, regardless of its origin. And Rule 5.3 requires that we supervise non-lawyer assistants—now including AI tools—ensuring their work meets professional standards.

We’re sharp, but we never cut corners.

The Bottom Line

Artificial intelligence is no longer theoretical—it is in our homes, our cars, and now our law libraries. Used wisely, tools like Lexis+ AI and Westlaw’s CoCounsel can streamline the front end of legal work.

But the responsibility for accuracy, candor, and professionalism remains entirely ours.

As members of the Dayton Bar, we have the opportunity to lead in modeling responsible AI use—leveraging its efficiency without compromising the standards of accuracy and integrity that define our profession. *Written with assistance from AI.

OUR TEAM CONSIDERS YOUR STRATEGY FROM EVERY ANGLE Your success is uniquely yours. We will work with you to understand the challenges and endeavors to strengthen your financial future. That’s why you deserve better than a pre-cut, one-size-fits-all wealth plan. Our team works to understand you and your goals to craft a strategy that fits your priorities and preferences to a tee. The LCNB Wealth team is here to help you plan for the future, manage your portfolio, and assist with trust and estate services.

Ready to cut to the chase?

Let us go to work for you.

LCNB.COM/WINNING-EDGE

Frank Williams NOT A DEPOSIT | NOT FDIC INSURED | MAY LOSE VALUE NOT GUARANTEED BY THE FINANCIAL INSTITUTION

QR code is subject to data charges.

Vice President & Senior Trust Officer (937) 581-5268 fwilliams@LCNB.com

© 2024 LCNB National Bank

nov/dec 2025 | DAYTON Bar Briefs

27

LAW RELATED ORGANIZATIONS Dayton Bar Foundation

Together We Can Make an Impact

I

n July, I became the president of The Dayton Bar Foundation (“Foundation”), an organization which I have long admired, in the same way that I have long admired the past presidents and the boards of the Foundation. They have all done a great job in providing this valuable outlet to our members and to our community.

Bob Farquhar incorporated the Foundation in 1984 as the Dayton Bar Association Foundation, but the name was changed in 2019 to The Dayton Bar Foundation so that it was clear that the Foundation was independent of the Dayton Bar Association. It is helpful to keep in mind that the first purpose of the Foundation is to foster, promote and maintain the honor and integrity of the profession of law and to improve the administration of justice.

Since its inception, the Foundation has supported many good causes, causes that have improved the administration of justice, causes that have helped publish and educate our legal community about the practice of law and the administration of justice. All of these grants have been in response to specific grant applications submitted by DBA members or by third party applicants. That performance has been very rewarding to the Foundation, to the legal community, and to the Dayton community at large.

As I think about the future of the Foundation, I am thinking about two principles that I believe will serve the Foundation well and will serve the administration of justice well. Both of these principles are present in the purposes and operations of the Ohio State Bar Foundation and the American Bar Foundation. (1) a tiered recognition system, and (2) more centralized goals of the Foundation.

We have already adopted the tiered recognition system which provides for the following tiers of recognition:

28

DAYTON Bar Briefs | nov/dec 2025

By Merle F. Wilberding, Esq. President, DBF Coolidge Wall Co., LPA

In addition, a Fellow can be a “Sustaining Fellow” or a “Sustaining Fellow Advocate” for any ensuing year in which the Fellow makes a sustaining contribution of $250. To be a Sustaining Life Fellow Patron or to be a Sustaining Life Fellow Champion, the Fellow would contribute $500 to be recognized as a sustaining fellow for that year. We believe that recognition will attract annual gifts and annual recognition of those fellows as leaders in the community.

The Foundation will be recognizing these contribution tiers in the Bar Briefs and at the annual meeting. In addition, the Foundation will be inviting Fellows to participate in special meetings and opportunities.

Further, for the higher contribution tiers, those Fellows will have the opportunity to attend special receptions, perhaps even a reception at Hawthorne Hill. The selection of opportunities is a work in progress, and the Foundation will continue to seek special opportunities that will enhance a person’s recognition as a fellow.

These tiers of recognition will not only provide a more visible homage and distinctive identification of the Fellows, but will, over time, help enhance the endowment of the Foundation. With this enhanced endowment, you, contributing together as members of the Foundation, will be able to make a significant impact on the administration of justice in our community and on the quality of life in our community.

Help Fund Impactful Legal Initiatives Through the DBF 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 •Legal Aid of Western Ohio (LAWO) •Wills for Heroes

All gifts are eligible for charitable deductions on your federal income tax return if you itemize deductions.

The discussion of the centralized goals for the Foundation are ongoing, but will start with a discussion of the following goals: 1. Innocence Project. We are all familiar with the Oho Innocence Project founded and directed by Mark Godsey.

Its sole purpose is simple: To identify and free persons from prison who in fact had not committed the crime. You may remember when Amanda Knox came to Dayton in February 2024 to discuss the Ohio Innocence project and how the project (almost inadvertently) creates a safe place for isolated released prisoners to find family and help reconnect to what had been an estranged world. There are numerous opportunities for bar Fellows to participate in this program with financial contributions, with pro bono research and interviewing, and fundamental analysis of current facts as they relate to the original charges.

2. Education in Prison or Education on Re-entry from Prison. Both Wilmington College and Sinclair Community College have active prison education programs that are very successful. Sinclair has programs in 17 prison facilities throughout Ohio, including the Dayton Correctional Facility for women on Germantown Street. Some of these programs provide for academic education, including working towards a degree, either directly or in a 2 + 2 program. Other programs focus on preparing inmates for re-entry into the real world and help them prepare for getting employment and reconnecting to the world. Fellows of the Foundation may have an opportunity to see these programs in real time, and to participate in these programs, either in panel discussions or in lectures in classroom settings.

3. The Food Bank. We are all also familiar with the Dayton Food Bank managed so well by Michelle Riley. I suspect many of us have spent time at the Dayton Food Bank. We may have sorted goods within the warehouse; we may have distributed boxes of food to needy people as they drove

through the very long line to receive free food; and we may have helped plant vegetables and other produce in its urban gardens and in its Beverly K. Greenehouse.

Besides those three headliners, there may be other equally appropriate community projects that we, as the legal community, can use our collective means to make a significant impact on our community.

What I like most about these upcoming changes in the Foundation is that, together, we as lawyers can make a real impact on the administration of justice. More importantly, we can make a real impact on the lives of others. I hope we all raise our Fellow level to a new recognition tier. That will make us leaders in the legal community and leaders in the advancing the Rule of Law and the administration of justice.

Thank you for considering these opportunities.

nov/dec 2025 | DAYTON Bar Briefs

29

LAW RELATED ORGANIZATIONS Greater Dayton Volunteer Lawyers Project (GDVLP)

Why We Need to Talk About What Pro Bono Really Means I recently sat down with a funding consultant to talk about the Greater Dayton Volunteer Lawyers Project (GDVLP). At one point in our conversation, he leaned back, looked at me, and said: “I always thought all you did was help criminals.”

He’s not a lawyer, and he said it without malice. But in that moment, I realized how easy it is, even for educated professionals, to misunderstand the role of legal aid and pro bono services in our community.

I explained to him what I explain almost every week to someone new: no one in America is guaranteed free legal help for civil matters. If you are charged with a crime, the Constitution promises you a public defender if you can’t afford an attorney. But if you are about to lose your home, if your wages are being garnished by a predatory debt collector, if you are trapped in an abusive marriage - you are on your own unless legal aid or pro bono lawyers step in.

The consultant looked puzzled. So I gave him examples. Civil legal aid is the attorney who helps a grandmother fight an unlawful eviction from her rent-controlled apartment. It’s the volunteer who drafts divorce papers for a survivor of domestic violence who is finally ready to leave her abuser. It’s the law student who spends hours helping a returning citizen apply for record sealing so they can finally get a job interview.

That’s when he paused, nodded, and said: “Oh. I get it now.”

Why Lawyers Need to Tell This Story

That conversation drove home something I’ve been feeling for a while: we can’t assume people understand what “legal aid” or “pro bono” means.

If even a funding consultant doesn’t, how can we expect community members, potential donors, or policymakers to?

As lawyers, we live in the language of “civil legal matters” and “pro bono services.” But outside our profession, those terms can sound abstract or even misleading. If we don’t explain it, people will 30

DAYTON Bar Briefs | nov/dec 2025

fill in the blanks themselves and too often, that means confusing us with criminal defense.

The truth is simple but powerful: legal aid and pro bono services are about protecting the basics of life: housing, safety, income, and family.

The GDVLP Return on Investment

At GDVLP, we stretch every resource as far as it can go. In 2024, we turned every dollar of our expenses into nearly three dollars of legal services, delivering over $650,000 worth of free legal help to people in need.

And the impact doesn’t stop there. Studies show that every $1 of legal aid and pro bono civil legal services saves $7 in societal costs - by preventing homelessness, reducing demand on emergency shelters, avoiding healthcare costs tied to domestic violence, and keeping families stable.

Do the math and you’ll see what I see: GDVLP isn’t just cost-effective, it’s a multiplier.

The $650,000 worth of services donated by all of YOU produced a 21-to-1 return for the Dayton community. That’s a return most investors could only dream of.

By Summer Hawks Esq. Executive Director, GDVLP

reduced, all while costs continue to rise.

The justice gap is real: most low-income Americans face civil legal problems without any help. We have the power to change that, not just in courtrooms, but in how we explain what we do to the wider world.

A Final Word

I think back to that consultant’s face when he finally understood. His expression changed from skepticism to recognition. That moment of clarity matters. Each time we explain what civil legal aid really is, we build allies, open doors, and make it more likely that resources will flow to where they’re desperately needed.

So here is my call to my colleagues: help us tell this story. Help us show that pro bono and legal aid are not abstract or optional. They are the engine that keeps families safe, housed, and whole. And when we invest in them, the return is extraordinary - not just for clients, but for the health and strength of our entire community.

What We Need from Our Profession

I tell this story not just to defend the work we do, but to remind our profession that this is our story to tell. No one else is going to explain civil legal aid if we don’t.

We need lawyers who are willing to: • Volunteer their skills - from a halfhour advice session to a full case, every hour makes a difference.

• Be ambassadors - the next time someone asks what pro bono means, don’t say “free legal work.” Say, “It’s helping families stay housed, safe, and stable.”

• Support the infrastructure - because without staff, training, and systems to match volunteers with clients, pro bono efforts can’t scale. Grant dollars are becoming scarce, governmental funding is

Classified Ads: Details daybar.org/classifieds WILMERHALE Discovery Solutions group is seeking lateral attorney candidates and/or entry level attorneys to join our Dayton office.

Visit wilmerhale.com/careers to apply online.

LawON Related Organizations MEMBERS THE MOVE

Members on the Move Guidelines: During its annual organizational meeting at the in Columbus, the NAIOP of Ohio Board of Directors announced the election of Dayton-area attorney Robert Ballinger as their next Board President, effective January 2026 through December 2027. Ballinger, a shareholder at Coolidge Wall Co., L.P.A. in Dayton, succeeds outgoing President Mike Sikora.

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 & political announcements not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available Contact Shayla to submit your announcement or ad:

seggleton@daybar.org | 937.222.7902

DISPLAY AD INDEX: Pickrel, Schaeffer & Ebeling Co., LPA proudly welcomes Kseniia Mironova as an Associate in the Business Department.

Kseniia earned her B.A. in Criminal Justice from Colorado Mesa University and her J.D. from the University of Dayton School of Law in 2021. As a law student, she was a Dean's Fellow and Research Assistant to Professor James Steiner-Dillon.

She practiced business law for two years and criminal defense for four years prior to joining PSE.

Daily Court Reporter................................................17 dayton disability foundation.............................31 EIKENBARY TRUST..........................................................23 Ferneding Insurance................................................24 LCNB | wealth...............................................................27 oBLIC..............................................................back cover R.L. Emmons & Associates........................................23

nov/dec 2025 | DAYTON Bar Briefs

31

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

We’re proactive, so you aren’t reactive.

Our communications are proactive and provide essential insights designed to reduce stress and anxiety around a mistake bringing an end to your practice. This brings peace of mind and allows you to focus on your primary responsiblity... practicing law.

OSBA Insurance Agency A Subsidiary of

Let’s talk. Visit oblic.com or call 800.227.4111