Dayton Bar Briefs Magazine Nov/Dec 2023: Vol. 73 No. 2 by Dayton Bar Association

nov/dec 2023

BarBriefs

The Off icial Magazine of the DBA

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trustee profile

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US District Judge Michael J. Newman

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BarBriefs DBA Board of Trustees 2023-2024 Anne P. Keeton President

Hon. Michael J. Newman First Vice President

James H. Greer Second Vice President

Erin E. Rhinehart Secretary

Jamar T. King Treasurer

Jennifer Brogan

vol.

nov/dec 2023

no.

Contents Columns:

United States District Judge Michael J. Newman U.S. Dist. Court, Southern District of Ohio

TRUSTEE PROFILE

Annual Holiday Gift Column

Rules and More Rules

UDSL

JUDGE'S DESK

Curated By Marie Poinsatte, JD Candidate May 2024 | University of Dayton

By The Honorable Judge Susan D. Solle Montgomery County Common Pleas Court, General Division.

Member–at–Large

Lauren K. Epperley Member–at–Large

Erin Moore Member–at–Large

Brian L. Wright Member–at–Large

Hon. Caroline H. Gentry Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

BAR BRIEFS is published by the 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 May/June. 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.

Features:

Self Defense

Marilyn R. Donoff MR Donoff & Associates

Proposed Federal Rules Amendments

Parenting Time & Child Support

What next?

APPELLATE

BARRISTER

FEDERAL PRACTICE

DOMESTIC RELATIONS

JUVENILE LAW

SOCIAL JUSTICE

By John Lintz, Staff Attorney | Second District Court of Appeals

By Morgan Napier | Faruki+ PLL

By US Magistrate Judge Caroline Gentry | U.S. Dist Court, Southern District of Ohio

By Anny Fletcher | Child Support Enforcement Agency

By Magistrate Jeffrey Livingston | Montgomery County Juvenile Court

Artemis Center Answers the Question "If it's so bad, why don't they just leave?" By Dianne Marx, Member of Non-Profit Clearinghouse Subcommittee

Also In This Issue: 7

2024 Mock Trial Competition Volunteers needed for January 26th

2023 Holiday Luncheon Register now for December 18th

11 DBA MAX+ Membership Upgrade today and get all of your CLE! 13 On-Demand CLE Meet your requirements before January 1st 13 December 2023 - May 2024 Section/Interest Group Meeting Dates 14 Champagne Toast New Admittee Reception RSVP by December 1st 15 Lawyer Referral Service Increase your client base in the new year! 16 November - December 2023 Live CLE Calendar 24 Law Related Organizations 26 Classifieds & Advertiser index

2023-2024

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Bruns, Connell, Vollmar & Armstrong, LLC (BCVA Law) works hard to support our clients for their long-term success. We have extensive experience representing businesses and individuals in a variety of matters, including business disputes, small business and entrepreneurial needs, insurance disputes, brewery, distillery, and liquor permit holder needs, transportation law, employment law, professional liability defense, profit recovery and a variety of other litigation matters. We value our relationships and take pride in delivering a high level of service at a cost based on the client’s needs, and the complexity of the problem—and not on law firm overhead. Our core value is to work efficiently and effectively.

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For More Details on Becoming a 2023-2024 DBA Annual Partner Contact: JENNIFER OTCHY, DBA CEO | jotchy@daybar.org | 937. 222.1364 nov/dec 2023 | DAYTON Bar Briefs

Trustee Profile Periodic updates on activities undertaken by your Board of Trustees.

U.S. District Judge Michael J. Newman

DBA First Vice President

t has been a busy September for Judge Newman, the DBA’s First Vice President, who will be sworn in as DBA President in the summer of 2024. In addition to managing his large civil and criminal docket, he participated in the following events this September.

Sixth Circuit Judicial Conference & Civics Summit

Judge Newman has a passion for civics – particularly, an interest in making intermediate and high school students aware of the workings of the state and federal courts – which he hopes to introduce to the Dayton legal community when he becomes DBA president in 2024. “It’s important,” he says, “to make young people aware of how our courts work – to get them to understand what ‘justice’ and ‘due process’ really mean, and to motivate them to be engaged citizens, voters and jurors.” He hopes that some of the students whom the Dayton lawyers and judges are now meeting with for civics training will, one day, become lawyers and judges themselves. Currently, Judge Newman chairs the Southern District of Ohio’s Civics Committee and also co-chairs (with Judge Collier from the U.S. District Court for the Middle District of Tennessee) the Civics Committee for the Sixth U.S. Circuit Court of Appeals. This September, following the Sixth Circuit Judicial Conference in downtown Cleveland, the Circuit held a half-day Civics Summit – the first time in the United States that a court-sponsored civics seminar was held in conjunction with a judicial conference. The Civics Summit took many months to plan, and Judge Newman called it a great success, given that more than 200 federal practitioners and many federal judges were in attendance. Attendees heard about practical means to schedule meetings between judges and students (in a courtroom or classroom); how to job shadow judges, law clerks and court personnel; ways to conduct a Teacher’s Institute (sometimes also called a “Teacher’s Law School”) with civics and Social Studies teachers; and how to run a Civics Court Camp, among other activities. Judge Newman and Judge Collier spoke at the Civics Summit, the purpose of which was to encourage District Courts, from throughout the Sixth Circuit, to engage in these civics education activities on a local basis. As Chief Judge Sutton explained during his opening address of the Civics Summit, the Court’s hope is that the Sixth Circuit will lead the nation in civics outreach. Judge Newman is proud that the Dayton seat of court will be an integral part of that important effort.

Judge Newman at NYU's Labor

& Employment Law Seminar

Celebrating Constitution Day and Citizenship Day

In mid-September, the United States District Court, in conjunction with the University of Dayton School of Law, celebrated Constitution Day and Citizenship Day by holding a naturalization ceremony at the Law School. Judge Newman presided over the ceremony with former DBA president Judge Caroline Gentry, Bankruptcy Judge Guy Humphrey, District Court Clerk of Court Rich Nagel, University of Dayton President, Dr. Eric Spina, and Prof. Chris Roederer, UDSL Associate Dean for Academic Affairs, in attendance. Also present to celebrate with the new citizens were a large number of UDSL students, DBA members, and Social Studies students from Oakwood High School. Constitution Day, a civics day gaining popularity among schools and courts nationwide, celebrates September 17, 1787, when the United States Constitution was signed by delegates to the Constitutional Convention in Philadelphia. This is the second year in a row the United States District Court has celebrated Constitution Day in this manner at UDSL. “Our hope,” says Judge Newman, “is that this is now, and will be going forward, an annual civics tradition in the Dayton legal community.”

Judge Newman, Judge Gentry, Jud ge Hum some of the new citizens on Con phrey, and President Spina pose with stitution Day, September 2023.

DAYTON Bar Briefs | nov/dec 2023

Speaking at NYU Law School

In late September, Judge Newman flew to New York City at the request of the Federal Judicial Center (the teaching arm of the federal courts) to participate in the 25th Labor & Employment Law Seminar at NYU Law School. The Employment Law Seminar is an annual event run by the FJC and NYU Law, and attendance is open to federal judges from the federal trial and appellate courts. Judge Newman undertook two speaking engagements while at NYU: he moderated a panel discussion on legal issues relating to retaliation and whistleblower claims; and served, the next day, as one of three panelists on the topic of employment law considerations for hybrid and remote work.

DBA Recent Events

Join us for what's next at daybar.org October 18: DBA 50-Year Honoree Luncheon

Moderator Dave Greer (top, right on end) with honorees in attendance, Paul Zimmer, Gary Crim, Mag. John Cumming, Ed Smith, Gerald Gunnoe, Stan Hirtle, Michael Jacobs, Robert "Buzz" Portune, and James Treherne.

Receiving the FBA’s Earl W. Kintner Lifetime Achievement Award

In late September, Judge Newman traveled to Memphis, Tennessee to attend the Federal Bar Association’s annual meeting and convention, where he was presented with the FBA’s highest award, the Earl W. Kintner Award for Distinguished Service in recognition of his years of many service to the FBA.1 As noted recently in the Oakwood Register newspaper: The award is presented as a lifetime contribution award to an FBA member who has displayed long-term outstanding achievement, distinguished leadership, and participation in the activities of the Association’s chapters, sections, and divisions throughout the nation over a career of service. Judge Newman has served a chapter president of the Federal Bar Association (FBA) in both Cincinnati and Dayton and, in 2016-17, he served as the National President of the FBA. Newman is also the FBA’s first Judicial Ambassador for Civics Education, and honor bestowed upon him for his continued commitment to educating youth throughout Ohio and the nation about the Third Branch of Government.

(Left to right): Bruce Moyer Esq., former FBA Government Relations Counsel; West Allen Esq., Chair, Kintner Award selection committee; former FBA General Counsel, Rob Clark Esq.; and former FBA National President, Assistant U.S. Attorney Mark Vincent.

October 13: Meeting at Supreme Court of Ohio

DBA President Anne Keeton and CEO Jennifer Otchy had the pleasure of meeting with Supreme Court of Ohio Chief Justice Kennedy.

October 11: DBA Coffee Talk: Managing Relationships and Expectations as Junior to Mid-Level Attorney

Moderated by: Jeff Cox, Faruki and Kelsey Mincheff, Thompson Hine.

We are proud of Judge Newman and all of the civics education and judicial education work he participated in this September. All of us in the DBA also congratulate him on receiving the prestigious Earl W. Kintner Distinguished Service Award. We look forward to his swearing-in as DBA president this coming summer.

ENDNOTES: 1

The award is named in honor of Arent Fox founding partner Earl W. Kintner, who was a longtime supporter of the FBA. Former DBA president, Merle Wilberding, worked with Mr. Kintner at Arent Fox in the 1970s in Washington, D.C. and knew him well. The Arent Fox firm, now called ArentFox Schiff, was then known as Arent, Fox, Kintner, Plotkin & Kahn.

nov/dec 2023 | DAYTON Bar Briefs

Appellate

Self Defense By John Lintz Staff Attorney for Judge Epley Second District Court of Appeals lintzj@mcohio.org

he history of self-defense laws in Ohio is a complex and evolving story that spans centuries and has been shaped by changes in society, legal precedents, and legislative reforms. This article gives a brief history of deadly force self-defense in the state and attempts to give an overview of where things stand now. When Ohio became a state in 1803, it adopted a legal framework that recognized the right to self-defense. The Ohio Constitution, like the United States Constitution, affirmed the right to bear arms and protect oneself. The early laws of the state also endorsed the common law “castle doctrine,” which allowed individuals to use lethal force to defend their homes and businesses if they reasonably believed that their lives were in imminent danger. For much of its history, Ohio imposed a duty to retreat before using deadly force in self-defense. In other words, individuals were required to attempt to escape or avoid the confrontation before using deadly force. That began to change 15 years ago when SB 184 was introduced, ushering in the “stand your ground” era. This law, passed in 2008 and signed by then-Governor Ted Strickland, eliminated the duty to retreat when someone unlawfully entered or tried to enter your occupied home or vehicle. It created a presumption of self-defense. That presumption, though, did not apply if the person was lawfully present. In recent years, Ohio has enacted several pieces of legislation that have made further changes to the self-defense laws. First, in 2019, SB 228 altered R.C. 2901.05 (Ohio’s self-defense statute) making self-defense no longer an affirmative defense. Instead, if the defendant puts forth evidence that he or she acted in self-defense, the burden shifts “from the defendant to the state to prove beyond a reasonable doubt that the accused did not use force in self-defense.” State v. Brooks, 170 Ohio St.3d 1, 2022-Ohio-2478, 208 N.E.3d 751, ¶ 6. In other words, the State must dis6

DAYTON Bar Briefs | nov/dec 2023

prove self-defense. The Ohio Supreme Court has held that a sufficiency of the evidence review is applied to the defendant’s burden of production, and the State’s burden of persuasion is decided under a manifest weight of the evidence standard. State v. Messenger, Ohio Slip Opinion, 2022-Ohio-4562, __ N.E.3d __. Then, in April 2021, S.B. 175 took effect, amending R.C. 2901.09 to indicate that “a person has no duty to retreat before using self-defense * * * if that person is in a place in which the person lawfully has a right to be.” R.C. 2901.09(B). It further states that “[a] trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense * * * reasonably believed that the force was necessary to prevent injury, loss, or risk of life or safety.” R.C. 2901.09(C). Simply put, the new “stand your ground” law removes, in most cases, the duty to retreat before using self-defense. For example, a person who is attacked while walking on the sidewalk may use deadly force in self-defense without first seeking to get out of the situation. There could be more changes on the horizon as well. A new bill (HB 233) has been introduced in the Ohio house that would alter R.C. 2901.05 and allow for a defendant to ask for a pre-trial hearing to present evidence that he or she acted in self-defense. According to the language of the proposed bill, if the defendant can present evidence that tends to support, by a preponderance of the evidence, that he or she used force in self-defense, there will be, at trial, a rebuttable presumption that the accused acted in self-defense. The State, then, must prove beyond a reasonable doubt that the person did not act in self-defense. If the defendant does not file the pre-trial motion, or if the judge denies it, there would not be a presumption of self-defense at trial, but it could still be asserted. Where does that leave us here in the Second District? As of now, the law looks like this: To warrant an instruction on self-de-

fense, there must be evidence presented by the defendant that (1) he or she was not at fault in creating the violent situation, and (2) he or she had a bona fide belief that there was imminent danger of death or great bodily harm and the only way to escape was to use force. State v. Cunningham, 2d Dist. Montgomery No. 29122, 2023-Ohio-157, ¶ 14. If the defendant puts forth evidence of self-defense, the State must prove beyond a reasonable doubt that the accused did not use force in self-defense. R.C. 2901.05(B)(1). The State’s burden of disproving the self-defense claim is subject to a manifest weight review on appeal. State v. Messenger, Ohio Slip Opinion No. 2022-Ohio-4562, __N.E.3d. __, ¶ 27. So, building upon the example above, if the man who was attacked on the sidewalk texted the other party to set up a fist fight and then shot or stabbed him, a self-defense claim would be unavailable – he created the situation. “It is well established that a person cannot provoke a fight or voluntarily enter combat and then claim self-defense.” State v. James, 2d Dist. Montgomery No. 28892, 2021-Ohio-1112, ¶ 21. To carry its burden, the State could present the text messages sent between the men showing that the defendant arranged the fight that turned deadly. This area of law is seemingly ever-changing and there are currently at least two self-defense cases just from the Second District pending at the Ohio Supreme: State v. Tyler Wilson, 20221482, which was argued in late September, raises the question of whether a person who fired a “warning shot” is entitled to a self-defense instruction, and State v. Degahson, 2022-1257, a case about whether a person who commits a murder – allegedly in self-defense – before the most recent change in law is entitled to an instruction of the new law. With the fluid nature of the law, it is important that practioners keep an eye on the cases coming out the Supreme Court and Second District. Your clients could have a lot on the line.

The law firm of Coolidge Wall Co., LPA are pleased to share with you, that Merle Wilberding has received the Ohio State Bar Foundation’s Ritter Award. The Ritter Award is the highest honor the OSBF awards to anyone! This award is a tribute to a lifetime of service and recognizes the honoree’s accomplishments in attaining and promoting the highest level of professionalism, integrity, and ethics in the practice of law. Please join us in congratulating DBA Past President, Foundation Fellow, Sustaining, Honorary, DBA MAX+ member, Merle Wilberding. Merle receiving the Ritter Award on Octo pictured with renowned Dayton ber 13th at the Columbus Museum of Art, Artist Bing Davis and his wife Aud rey.

Merle and Ohio State Bar Fou nda

tion Executive Director, Lori

Keating .

nov/dec 2023 | DAYTON Bar Briefs

Feature

Barrister of the Month:

Marilyn R. Donoff M. R. Donoff & Associates

arilyn Donoff 's zest for the practice of law, especially after over 40 years, is admirable and infectious. Before adorning a law firm with her name, Marilyn was raised in a cemetery in the Toledo area, where her family worked as gravediggers. While, perhaps, an unusual place to raise a child, Marilyn loved playing in the arboretumlike property that adjoined the graveyard. Marilyn then went on to become the first member of her family to earn a college degree – from Wright State University – in just three years while raising her daughter and playing tennis. Not only did she succeed in the classroom, but she excelled on the tennis court, earning the spot of team captain. From Wright State, she attended the University of Cincinnati College of Law. As a student, she clerked for Martin Young and was first exposed to social security law, which would later become her passion. Before dedicating her practice to solely to social security cases, Marilyn worked for Lang, Horenstein & Dunlevy, where she litigated matters on behalf of her insurance company clients and represented clients in worker's compensation disputes. While with this firm, she met her mentors, Steve Horenstein and Wilber Lang. After 25 years of splitting her time between different practice areas, she began to focus exclusively on social security matters. Marilyn's passion for this area of the law and for trial practice is palpable. A true trial attorney, she loves being in court and interacting with the judges, and the thrill of crossexamining witnesses. She also enjoys the satisfaction of knowing that with enough grit, her clients can get a "win" and get the help that they need. It is her clients, and the privilege of advocating for them, that brings her the most joy. Prior to venturing out on her own, Marilyn partnered with her friends Wilber Lang and Carmine Garofalo. While Mr. Garofalo would go on to open an office with a different firm in the same building as Marilyn, she would continue to work with Mr. Lang until around 1995, when she started her own firm. Not only was Mr. Lang Marilyn's partner in law, but they also partnered to breed racehorses for eight years. Together, they bred mares and trotters, one of which would go on to win the Ohio State Fair. When she is not in court, Marilyn is likely to be on a tennis court. While a current member of Kettering Tennis Club, she and her late husband, Keith Donoff, previously owned Dayton Indoor, a tennis club, for many years. Just as Dayton Indoor was a family business, so is M.R. Donoff & Associates. Keith even worked as bookkeeper for the firm for a period of time. While his official role was bookkeeper, his role was not limited to accounting matters. Marilyn laughed as she recalled asking Keith to serve 42 subpoenas on his first day with the firm. Marilyn's daughter, Sandra, has worked with Marilyn for many years – dating back to Sandra's days as a runner for Lang, Horenstein & Dunlevy when she was in her early teens. Recently, Marilyn's grandson, Zachary, and his wife, Rebecca, both Harvard Law graduates, settled in the Dayton area and joined the firm. She is enjoying teaching them social security law, 8

DAYTON Bar Briefs | nov/dec 2023

and within the next year, they will join Marilyn as partners in the firm Donoff & Luntz. When not in or on a court, Marilyn enjoys spending time with her three dogs, Gracie, Benjamin, and Franklin, and her plants. She also enjoys traveling. This last year she enjoyed attending Mardi Gras in New Orleans with Sandra and looks forward to taking a cruise in 2024 with stops in Singapore, Japan, Vietnam, Thailand, and Hong Kong.

By Morgan Napier Esq. Faruki+ mnapier@ficlaw.com

DBA MAX+ Members have complimentary registration to this event! Please register by scanning qr code

Holiday

Tuesday, December 12 Sinclair Conference Center Doors & Lunch 11:30am Program Noon-1:30pm

Luncheon

The DBA Holiday Luncheon is a celebration of the many great works of the Greater Dayton Volunteer Lawyers Project and acknowledges the Holiday festivities for our members and friends. It is an opportunity to thank the legal professionals in our community who have volunteered and helps to provide them with a renewed sense of purpose and motivation to continue doing the good work they do to assist low-income individuals in our community. We will also hear DBA President Anne Keeton in recognizing our 25-year honorees, and the Dayton Bar Foundation!

Recognition of DBA 25-Year Honorees! Bradley S. Baldwin Prof. Thaddeus F. Hoffmeister Matthew D. Bruder John F. Kane Shannon L. Costello Mag. Kathleen S. Lenski Melissa Duke Jones Karen R. Lindsay Amy C. Mitchell Travis T. Dunnington John D. Everett David H. Montgomery Hon. Mary E. Montgomery Mag. Gina A. Feller Victoria L. Nilles Joseph L. Feller Cara W. Powers Andrew T. French Tracy L. Stull Dawn M. Frick

Special Guest Speaker: Andrew Walsh

Writer, Web Entrepreneur, and Academic Librarian Program Details:

The history of the courthouses in Dayton, followed by special recognition, celebrating three GDVLP volunteers who have given exemplary services to their clients and hear why they volunteer to help ensure equal access to justice! 9

Federal Practice

Proposed Federal Rules Amendments

n August 2023, the Judicial Conference of the United States issued proposed amendments to the Federal Rules of Bankruptcy, Appellate, and Civil Procedure. The proposed amendments are summarized below and are available at: https://www.uscourts.gov/sites/default/files/2023_preliminary_draft_final_0.pdf. Bankruptcy Rules Fed. R. Bankr. P. 3002.1 (Notice Relating to Claims Secured by a Security Interest in the Debtor’s Principal Residence in a Chapter 13 Case) In 2021, the Advisory Committee proposed amendments to Rule 3002.1 that would require a midcase assessment of the status of a mortgage claim, give the debtor an opportunity to cure any postpetition defaults, prescribe the effective date of late payment-change notices, require more frequent notices regarding home equity lines of credit (HELOC), and require a motion regarding the mortgage status rather than a notice at the end of a chapter 13 case. Many chapter 13 trustees objected to the proposed mandatory midcase review and end-of-case motion procedure, whereas debtors’ attorneys welcomed the mandatory midcase review. The Advisory Committee subsequently revised the proposed amendments to Rule 3002.1 based upon its review of the submitted comments. Under the newly proposed amendments, claim holders may provide only annual notices of HELOC payment changes or may provide them more frequently. A midcase review is now optional, can be initiated by a motion filed by the trustee or debtor, and is available at any time. The claim holder need only respond to the motion if it disagrees with any facts set forth therein. The end-of-case procedure will be by notice rather than motion. Fed. R. Bankr. P. 8006 (Request for Leave to Take a Direct Appeal to a Court of Appeals After Certification) Rule 8006(g) currently provides that “a request for leave to take a direct appeal to a court of appeals must be filed,” without specifying who may file that request. Amended Rule 8006(g) clarifies that “any party to the appeal may ask the court of appeals to authorize a direct appeal by filing a petition with the circuit clerk in accordance with Fed. R. App. P. 6(c).”

DAYTON Bar Briefs | nov/dec 2023

Federal Bankruptcy Forms The Advisory Committee proposed amendments to the following Bankruptcy forms: Form 410, Form 410C13-M1, Form 410C13M1R, Form 410C13-N, Form 410C13-NR, Form 410C13-M2 and Form 410C13-M2R. For information about the amendments, visit https://www.uscourts.gov/sites/default/ files/2023_preliminary_draft_final_0.pdf. Appellate Rules Fed. R. App. P. 6 (Appeal in a Bankruptcy Case) Rule 6 is amended to address two issues. Revised Rule 6(a) clarifies the effect of Rule 4(a)(4)(A) on the calculation of the deadline for appealing a bankruptcy case heard in a district court. Rule 6(c) is extensively revised to set forth the procedures for the direct appeal of a bankruptcy case or proceeding, without referencing Rule 5. The intent of the amendments is to clarify existing procedures rather than make substantive changes. Fed. R. App. P. 39 (Costs on Appeal) Rule 39 is amended in light of City of San Antonio v. Hotels.com, 141 S. Ct. 1628 (2021), which held that district courts may not disturb a court of appeals’ decision to allocate costs taxed by the district court. “Tax” refers to the calculation and taxing of costs upon parties by the district court or court of appeals. “Allocate” refers to the court of appeals’ decision to require certain parties to pay some or all of the taxed costs. Revised Rule 39(a) requires parties to bear their own costs if a judgment is affirmed in part, reversed in part, modified, or vacated. New Rule 39(b) allows parties to seek reconsideration of the court of appeals’ allocation of costs. New Rule 39(e) describes the costs that may be taxed by the court of appeals.

By US Magistrate Judge Caroline Gentry U.S. District Court, Southern District of Ohio Caroline_Gentry@ohsd.uscourts.gov Civil Rules Fed. R. Civ. P. 16(b)(3) & Fed. R. Civ. P. 26(f ) (privilege logs) Under Rule 26(b)(5)(A), parties must describe responsive documents and materials that they withhold from production due to attorney-client privilege or the work product doctrine. Parties typically create a documentby-document privilege log (which can be time-consuming and expensive) and provide it near the end of discovery (which can be problematic). Proposed amendments to Rules 16(b)(3) and 26(f ) encourage parties to discuss the timing and method of complying with Rule 26(b)(5)(A) at the outset of the litigation. Fed. R. Civ. P. 16.1 (multidistrict litigation) New Rule 16.1 addresses the management of multidistrict litigation (MDL) proceedings. The transferee court should schedule an initial management conference (Rule 16.1(a)) and may designate coordinating counsel for the conference (Rule 16.1(b)). The parties should meet and submit a report prior to the conference (Rule 16.1(c)). The report should address these topics: (1) the appointment and role of leadership counsel, (2) existing scheduling orders and how they should be modified (if at all), (3) the principal factual and legal issues, (4) timing of initial disclosures, (5) preparation of consolidated pleadings; (6) the proposed discovery plan; (7) likely pretrial motions; (8) scheduling of additional court conferences; (9) settlement; (10) management of newly filed actions; (11) coordination with any related actions; and (12) referrals to a magistrate judge or special master. Finally, Rule 16.1(d) instructs the transferee court to file an initial MDL management order after the conference. The comment period for these proposed amendments will remain open until February 16, 2024. To submit written comments, visit: https://www.uscourts.gov/rules-policies/ proposed-amendments-published-publiccomment.

Don’t Hire Just Any Mediator. Hire an Experienced Litigator, Former Judge, Vorys Attorney. “[Former] Judge Callan mediated a personal injury case for me. She was obviously prepared. Throughout the mediation, she demonstrated her knowledge of facts, the law, and the issues. She was able to draw on her experience to bring about a resolution of our case. It was very helpful to have an experienced jurist preside over our mediation.”

Vorys’ mediation team includes a number of former judges who are uniquely qualified to serve as mediators for your disputes. These former judges and other Vorys mediators’ sole goal is to guide parties to a fair and equitable resolution, defraying the costs of a potential trial.

– A.V.

Elizabeth “Libby” Callan, former Hamilton County Court of Common Pleas Judge and Of Counsel at Vorys

Vorys, Sater, Seymour and Pease LLP 301 East Fourth Street, Suite 3500 Great American Tower Cincinnati, Ohio 45202 vorys.com

nov/dec 2023 | DAYTON Bar Briefs

Domestic Relations

Parenting Time & Child Support By Anny Fletcher Child Support Enforcement Agency

e know that children tend to be happier and healthier when both parents are involved in their lives. This is why Montgomery County Child Support initiated a free program to establish visitation schedules for non-married parents. Parenting Time Opportunities for Children (PTOC) allows eligible families to establish a parenting time order at the time of their administrative child support hearing. PTOC was initially offered to Montgomery County parents in 2015. PTOC was made possible by a federal pilot grant that allowed child support agencies to develop, implement and evaluate procedures to establish parenting time orders along with new child support orders. The goal was to aid child support agencies in safely and effectively allowing families to establish parenting time orders, thereby improving the child's overall well-being. This initiative has grown and offers more options and supportive services to our families through the Access and Visitation Grant. To qualify for a PTOC shared parenting plan, families’ cases are screened before the administrative support hearing to ensure the following three conditions are met: (1) unmarried parents who are eligible for IV-D services (generally means one parent has requested support services through an application); (2) both parents must want to participate; and (3) there is no concern of family violence by either parent. Parents are encouraged to consider establishing a formal parenting time order through PTOC as it provides them comfort and clarity, as well as an enforceable “fallback” plan in case they ever have trouble working things out with their co-parent. 12

DAYTON Bar Briefs | nov/dec 2023

Logistically PTOC orders are established when the parents appear at the Child Support Agency for their child support hearing. The parents complete a questionnaire to determine interest and eliminate families where violence is present. The administrative hearing officer is alerted to the parents’ interest before conducting. Once the information needed to run the support calculation is obtained from the parties, the hearing officer will discuss the PTOC options, if the custodial parent indicates interest. The parties can elect to select a standard or phase-in order (Montgomery County Juvenile Court’s Standard Order of Parenting Time), or a customized order. If the parents choose the customized order, they can immediately see an onsite mediator from Dayton Mediation. The mediator will help them draft a plan that’s right for their family. The mediators are also there to discuss how a parenting time order might be right for a family, if the parents aren’t sure they need an order. Once the parenting time order is finalized, it is sent along with the administrative support order to Montgomery County Juvenile Court to be adopted as an order of the Court. Additionally, services offered through the PTOC vision include free parenting classes, the First Book Initiative and quarterly newsletters. In cooperation with Catholic Social Services, Nurturing Co-Parenting classes are offered to all parents in Montgomery County. There are both in-person and online options. Children whose parent(s) participate in PTOC or the parenting classes, are enrolled in our First Book initiative in partnership with the United Way. For one year, the child will receive an age-appropriate book sent to each

parents’ address every month. This allows the child to enjoy the book at both houses and doesn’t require them to transport it back and forth. Most recently with funds from our current Access and Visitation Grant additional hours at Erma’s House were offered for families ordered to participate in supervised visitation by the court. To date, we have issued more than 300 parenting time orders. This year alone, we will mail almost 1,000 books to local children. We know that financial support is vital to families. However, we also know that financial support isn’t the only type of support that is important to children. Research has shown that when children have two parents involved in their lives they are: • 5 times less likely to live in poverty • 3 times less likely to fail in school • 2 times less likely to develop emotional or behavioral problems • 2 times less likely to abuse drugs or be abused or neglected • 3 times less likely to commit suicide If you have additional questions about this or any of the programs at Child Support, you can log on to our website at mcsea.org. You can also reach out to our Legal Division Manager, Anny K. Fletcher at (937) 496-6683.

Sections & Interest Groups

DECEMBER 2023 - MAY 2024 MEETING DATES:

Visit daybar.org for calendar of events and complete listings of meeting topics & agendas.

DECEMBER

12/14 @ Noon Paralegal | Secret Snowman

JANUARY

1/3 @ Noon New Lawyer's Division 1/3 @ 4pm Estate Planning Trust & Probate | Optional CLE 1/9 @ Noon Workers' Comp/Social Security 1/10 @ Noon Appellate Practice 1/16 @ Noon Federal Practice 1/17 @ Noon Criminal Law 1/18 @ Noon Employment Law 1/23 @ Noon Civil Trial/ADR 1/24 @ Noon Domestic Relations | Everything You Wanted to Know About Guardians Ad Litem, Maybe? 1/25 @ Noon Paralegal | What an Attorney Needs in a Paralegal 1/25 @ 4:30pm Corporate Counsel | Optional CLE

FEBRUARY

2/7 @ Noon New Lawyer's Division 2/7 @ 4pm Estate Planning Trust & Probate | Optional CLE 2/21 @ 8am Coffee Talk | Dealing with Difficult Clients

MARCH

3/5 @ Noon Juvenile Law 3/6 @ Noon New Lawyer's Division 3/12 @ Noon Workers' Comp/Social Security 3/13 @ Noon Appellate Practice 3/19 @ Noon Federal Practice 3/20 @ Noon Criminal Law 3/21 @ Noon Employment Law 3/26 @ Noon Civil Trial/ADR 3/27 @ Noon Domestic Relations | Everything You Wanted to Know About Guardians Ad Litem, Maybe? 3/28 @ Noon Paralegal | Burnout 3/28 @ 4:30pm Corporate Counsel | Optional CLE

APRIL

4/3 @ Noon New Lawyer's Division 4/3 @ 4pm Estate Planning Trust & Probate | Optional CLE 4/11 @ Noon Real Property 4/17 @ 8am Coffee Talk

MAY

5/1 @4pm Estate Planning Trust & Probate | Optional CLE 5/7 @ Noon Juvenile Law 5/8 @ Noon Appellate Practice 5/14 @ Noon Workers' Comp/Social Security 5/15 @ Noon Criminal Law 5/16 @ Noon Employment Law 5/21 @ Noon Federal Practice 5/23 @ Noon Paralegal 5/23 @ 4:30pm Corporate Counsel | Optional CLE

On-Demand DBA CLE Over 130 On-Demand Programs

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Access CLE seminars on the DBA website anytime and get credits when most convenient for you!

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New Programs to be added in 2024! daybar.org/seminarweb nov/dec 2023 | DAYTON Bar Briefs

Juvenile Law

What next?

o you are waiting on your Bar results. Once you pass, then what are you going to do? The Juvenile Court is in need of attorneys for the appointed counsel program and to be a Guardian ad litem to protect the interest of the child. This article will deal with AND (Abuse, Neglect and Dependency) cases. Law school has taught you the theory. It is time to learn the practice of law. Before you head into court, you need to know when the rules of evidence apply in juvenile AND (abuse, neglect or dependency) cases. The rules of evidence apply at an adjudicatory hearing and in a permanent custody proceeding. For simplicity sake, an adjudicatory hearing is a hearing where the court determines in an AND case whether the child is abused, neglected, or dependent. Juv. R. 2(B). A motion for permanent custody filed by a Children Services agency involves the possible termination of parental rights and the rules of evidence also apply. Juv. R. 34(I). However, the rules of evidence are “relaxed” at dispositional hearings pursuant to Juv. R. 34. A court may admit evidence that is material and relevant, including, but not limited to, hearsay, opinion, and documentary evidence at a dispositional hearing. Juv. R. 34 (B)(2). Why? The disposition is when the court determines what is going to be done with the child. Where is the child going to reside or with whom? The rules are relaxed so that the court can have all the information so as to make the best decision possible regarding the child. It is important to recognize the distinction. Armed with this newfound knowledge, you will head into Juvenile Court where you will get courtroom experience immediately. An abuse, neglect or dependency case must be adjudicated and disposition commenced within 90 days of the filing of the complaint. Your first meeting with a client (parent) you are appointed to represent will probably be at a shelter care hearing. This is where Children Services wants to take custody of your client’s child. You may have ten to fifteen minutes to talk with the client, learn the basics of the case, and then you go before the magistrate for the initial hearing where you will dazzle everyone with your legal acumen and your cogent and well-

reasoned arguments why your client should have the child/children returned immediately. Next, the magistrate will have to find that there was probable cause to remove the child from the parent’(s) care and if so, interim temporary custody of the child will be granted to Children Services. Do not despair. Another hearing will occur shortly. Fortunately, next time comes soon. The court will set an initial adjudicatory hearing (IAH). This will give you time to meet with your client, prepare your discovery demand, 14

DAYTON Bar Briefs | nov/dec 2023

By Magistrate Jeffrey Livingston Montgomery County Juvenile Court jeffrey.livingston@mcjcohio.org

and review discovery from the prosecutor, who represents Children Services, and other parties such as the other parent and possibly other relatives who have intervened or are possible placements for the child. You will use your negotiation skills at the IAH so as to put your client in the best possible position for the return of the child/children. For example, you could offer to the prosecutor that if Children Services dismiss the abuse and neglect allegation that your client would agree to dependency (any child could be dependent at any point in time) on the condition that the child/children would be immediately returned to your client. Your client will surely agree to such a proposal and be ecstatic if it means the return of their child/children. Unfortunately, the prosecutor will likely not agree. It will be your position that Children Services unreasonably wants an abuse finding. Do not despair. Another hearing will occur shortly. Fortunately, for your client, next time comes soon. The court will set the matter for a full adjudicatory hearing. This is the trial. As mentioned above, the rules of evidence apply at this stage. The issue here is whether the child/children are abused, neglected or dependent. Do not get caught up in the argument when your client says, “I did nothing wrong”. As a general rule, this is irrelevant. It is important to point out to your client that the real issue is whether the child/children is an abused, neglected or dependent child. Even the best parents in the world may have a situation where a child/children could be found dependent. So, the next step is that you move forward with the trial. If the magistrate finds the child/children abused, neglected or dependent, do not despair. Another hearing will occur shortly. Disposition is next, so the question is, what is the court going to do with the child/children? Where will the child/children reside? What steps must your client take to have the child/children returned? As mentioned above, the rules of evidence are relaxed or the dispositional hearings. You will have the opportunity to present testimony from witnesses who will testify that your client is a great parent. The witnesses may say that they let your client watch their own children regularly. Do not forget to present testimony that your client has appropriate housing, that your client has appropriate financial resources, and hopefully, that your client does not do drugs illegally. Alas, more likely than not, the magistrate will order a case plan which will require the client fulfill certain case plan objectives

before their child/children are returned. You can always object to this if you think it is appropriate to do so. And on the bright side, the court more likely than not will reappoint you when the case comes back before the court. As you can see, there are numerous advantages to getting on the appointed counsel list in Juvenile Court. You get courtroom experience immediately, including adjudicatory hearings at which the rules of evidence apply and at dispositional hearings where just about anything and everything relevant to the case is admitted into evidence. The Judges and Magistrates learn you are and will see how zealous and competent you are. Other attorneys will also learn who you are. They will see your face and they will see how you react in court. Who knows, they may even be looking to expand their office with the addition of a fine, young attorney. And best of all, you get to earn some money. You are not going to retire on that money, but every little bit helps. Lastly, getting into court is fun. You will be amazed at what people will say on the witness stand. And every once in a while, you will have not only advised and guided your client, but will have also steered the case to the child/children being returned to your client. That is a win! If you would like to added to the Appointed Attorney list, please contact Juvenile Court Administration at (937) 225-4267

Champagne Toast!

The DBA Board of Trustees request the honor of your presence for a celebration congratulating those newly admitted to the practice of law! Thursday, December 7, 2023 4:30pm-6pm Coco's Bistro 230 Warren St., Dayton Please RSVP by December 1st!

Increase your client base in the new year!

nov/dec 2023 | DAYTON Bar Briefs

Continuing Legal Education

DBA FALL & WINTER LIVE CLE OFFERINGS: November//

December//

The Ethical Lawyer - 2023 Ethics Update

Presented by Criminal Law:

Fri. Nov 17 | 9-12:15pm | 3.0 PC Hrs | Sinclair Conference Center DBA Bar Counsel John M. Ruffolo, DBA Co-Bar Counsel, Paul Roderer Jr; Mark Tuss; and Jeffrey Hazlett Presented by the Akron Bar Association:

Stratagem: Practice Marketing Tips for Lawyers Mon. Nov 20 | Noon-1pm | 1.0 Gen Hr | Zoom Jared D. Correia, Red Cave Law Firm Consulting Presented by the Toledo Bar Association:

Utilization of AI and Applications in the Legal System and Throughout the Nation Mon. Nov 20 | 3:30-5pm | 1.5 Gen Hrs | Zoom Hey New Admittees, this one is for you...

Core Components for New Lawyers

Wed. Nov 29 | 9-12:15pm | 3.0 NLT Hrs | Seminar Room

Criminal Law Certification

Fri. Dec 1 | 8-3:45pm | 5.75 Gen or NLT Gen Hrs | Seminar Room

The Ethical Blunder in the Sandy Hook Defamation Case Mon. Dec 4 | 9-11:30am | 2.5 PC Hrs | Zoom Bill Price, Elk & Elk Lunch sponsored by WilmerHale!

ESI Production and Protection

Tues. Dec 5 | 9:30-12:45pm | 3.0 Gen Hrs | WilmerHale Joanna Garcia, WilmerHale, Zenus Franklin & Jordan Jennings, bothTaft Law, Jeff Cox, Faruki CLE Roundup presented by Estate Planning Trust & Probate:

EPTP December Roundup

Wed. Dec 6 | 2-5pm | 3.0 Gen Hrs | Seminar Room CLE Roundup presented by Juvenile Law & Domestic Relations:

Presented by Corporate Counsel:

Gov Con Law 101 for Companies That Aren't Government Contractors

Thurs. Nov 30 | 4pm Social 4:30-5:30pm Program | 1.0 Gen Hr | Seminar Room

Montgomery County Family Law Judge's Panel

Thurs. Dec 7 | 11-1pm | 2.0 Gen Hrs | Seminar Room *Lunch included!

2023 Federal Court Update

Wed. Dec 13 | 1-4:15pm | 3.0 Gen Hrs | Federal Court House

Judge Dankof's Criminal Law Update

Thurs. Dec 14 | 9-12:15pm | 3.0 Gen Hrs | Seminar Room

Annual IP for General & Corporate Practitioners: Focusing on Inventions and IP by Dayton and Ohio Inventors Fri. Dec 15 | 9-12:15pm | 3.0 Gen Hrs | Seminar Room

Thank You Sponsors! For Your Support of the 2023 Bench Bar Conference On-Demand

for offerings & registration

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• Recognition by the DBA at the start of the seminar or someone from Bench Bar Conference, and Probate Law Institute. Recognition by Name and Logo on Name and Logo on • Recognition by Name and Logo on sponsoring makes the introductions and provides a 30 second Recognition by$500 Title Sponsorship ame and Logoorganization on the following: Recognition by Name and Logo on • Recognition by Name and Logo on the following: the following: commercial for their product/service. • Name and logo included on the on-site agenda & signage the offollowing: the following: Event materials page DBA website • Ability to provide1.marketing tothe all attendees either viawith electronic 1. Event page of •the DBA website with Event pagee-blasts, of the and DBA website with Name and logo included on event 1. listing on website, other marketing materials materials or paper format at the seminar. your website/url. link towith your website/url. link towebsite your website/url. • ¼1.Page Ad in Attendee if applicable e DBA website withlink to 1. Event page of the DBA website Event pageMaterials of the DBA with • Post seminar follow-up email sent materials, by the DBA on your behalf to all attendees. 2. Marketing $800 Sterling Sponsorship programs & programs & 2. Marketing materials, 2. Marketing materials, programs & te/url. link to your website/url. link to your website/url. • Name and logo included on the on-site agenda & signage signage. signage. signage. als, programs & 3. (1) issue2.ofMarketing materials, programs & of Dayton 2. Marketing programs & and other marketing materials • Name and Briefs. logo includedmaterials, on event 3. listing on website, e-blasts, Dayton Bar Briefs. (1) issue Bar 3. (1) issue of Dayton Bar Briefs. Quarterly CLE $1,500-3,000 • 1/2 Page Ad Space in Attendee Materials if applicable Full-page within materials. signage. materials. 4. Half-page ad withinsignage. 4. 1/4-page ad within materials. Q1-3:$1,500,4.Q4: $3,000ad • Registration for (1) at the event 5. Peek of the Week (circulation 1,600) with Lunch and registration forissue (2) at the • Sponsor designation at all CLE hosted by DBA in a given Bar Briefs. (1) issue ofthe Dayton Barquarter Briefs. 3.seminars 3. (1) of Dayton Bar Briefs. $1,200 Barrister Sponsorship of the year. link to firm website. program. • Name and logo included the on-sitematerials. agenda & signage materials. 4. Half-page ad within materials. 4. 1/4-page adonwithin • Name and logo onExhibit all seminar brochures, emails, calendar listings your company information, via and all other • Name and logo included on event listing on website, e-blasts, and other marketing materials irculation 1,600) with for seminars Lunch and registration for (2) at the marketing materials in that quarter. promotional flyers or gifts at event. • Full Page Page Ad Space in Attendee Materials if applicable Contact Kate toorSponsor a CLE orattendees Event! • Recognition by the DBA at the start of the seminars or someone from sponsoring • Leave behindBertke brochure/flyer promotional items at each seat program. Lunch and registration for (2) at the organization makes the introductions and provides a 30 second commercial for their kbertke@daybar.org (937) 222-2324 • Follow up email sent by the DB A to all attendees on behalf of the sponsor y information, via program. product/service. • Lunch & Registration for (2) at the event seminar follow-up email sent by the DBA on your behalf to all attendees. gifts at• Post event.

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Contact Kate Bertke to Sponsor a CLE or Event! nov/dec 2023 | DAYTON Bar Briefs 17 kbertke@daybar.org (937) 222-2324

DBA Annual Ho Gift Column Curated By Marie Poinsatte University of Dayton School of Law JD Candidate May 2024

Versatile Footrest

Happy Holidays!

Sunflower Grow Kit

Fine Jewelry Cufflinks

Sunflower Garden Grow Kit, $12 Uncommongoods.com

We can always use a little sunshine, even in the deepest winter months. Gift someone this sunflower kit, and come summertime they’ll have tall, bright flowers!

DAYTON Bar Briefs | nov/dec 2023

Fine Jewelry Cufflinks, $Varies Azeera.com

My father turned sixty this August, so we designed these one-of-a-kind cufflinks with Azeera – three birthstone peridots for his three children. This was such a cool experience that I simply had to include it, and they do rings too!

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oliday Gift Guide Flashlight

Work Gloves

Pickleball Complete Set Great Lakes Postcards from Field Notes

Office Safe

Document Bag

Crafty Crochet Woobles

Flashlight Work Gloves, $19 Office Safe Document Bag Amazon.com $18, Amazon.com The uses for these gloves are Dealing with important manifold, spanning from work paperwork is, basically, the to play. From working on cars gist of what lawyers do. Gift a to plumbing, from early-morning coworker this weather-proof fishing to nighttime adventures, combination-lock file folder, and these will come in handy. wait for them to thank you in the new year.

Pickleball Complete Set $60 DicksSportingGoods.com If you haven’t jumped aboard the pickleball train, you’re missing out! Fun for all ages, this set has everything you need for indoor and outdoor play. Check out open play times: https:// www.daytonpickleball.com/ openplaytimes

Crafty Crochet Woobles $40 Thewoobles.com This adorable crochet dino is called “Pomp and Saurcumstance,” and he looks so lawyerly with his book, coffee, and briefcase. The easy-tofollow instructions in these kits make them perfect for an experienced crafter or amateur hobbyist!

Great Lakes Postcards from Field Notes, $10 Fieldnotesbrand.com As a Clevelander, I am partial to the Great Lakes. This brand has beautiful postcards, field journals, and adult coloring books according to themes like American cities or National Parks. 19

Column

From the Judge's Desk:

Rules and More Rules A

By The Honorable Judge Susan D. Solle Montgomery County Common Pleas Court, Gen. Div. Susan.Solle@montcourt.oh.gov

lawyer wears many hats – that of an advisor, an analyzer, a drafter, a negotiator, and . . . a professional rule follower. While not the most exciting aspect of our calling, there is no doubt that knowing and following the rules promulgated by the various courts in which a lawyer appears is foundational to the successful practice of law. In the General Division of the Montgomery County Common Pleas Court, we strive to adopt local rules that efficiently and fairly govern the conduct of business in the court. To that end, over the last several months, the court has undertaken a comprehensive review of our local rules, with the result being a proposed new set of rules. The court’s current local rules have been in effect since 1993. Since that date, the local rules have been reviewed and updated multiple times by amendment. The goal of this latest review of the local rules was not to merely amend those sections that need to be updated, but to create a rules document that is more easily read and navigated. At the time of this writing, the proposed rules are still under review by the court, but the expectation is that the new set of rules will be published for comment within the next few months. The proposed new local rules incorporate many of the court’s current rules, but they have been reformatted in a manner that makes them more readable and logically ordered. For example, instead of three broad sections with many subcategories, there are now 12 sections with appropriate headings and subheadings that more thoughtfully direct the reader to the rule they are seeking. In addition, there is a proposed rule entitled Construction which sets forth how to construe common words and phrases within the rules, as well a new rule defining several terms used throughout the document. Subject matter which appears in multiple places in the current rules has been consolidated into one section. An obvious example of this is the new proposed section on service requirements. Under the current set of rules, service is referred to in Mont. Co. C.P.R. 1.15, Mont. Co. C.P.R. 2.01, and Mont. Co. C.P.R. 2.05. The proposed set of rules has one section on service. This section, entitled Service Requirements, contains four rules, with the specific content of each being easily identifiable by their headings. In drafting the proposed rules, the court has ensured consistency with the Ohio Revised Code, the Ohio Rules of Civil Procedure, the Ohio Rules of Criminal Procedure, and the Rules of Superintendence for the Courts of Ohio. We found that in many cases, our current local rules repeat law or procedures set forth in the applicable statute or rule. Several of the proposed new rules are streamlined and condensed by replacing language that is statutory or established by a rule of procedure with a simple reference to the applicable authority. For instance, 20

DAYTON Bar Briefs | nov/dec 2023

the proposed rule regarding the filing of pleadings eliminates detailed information in current Mont. Co. C.P.R. 2.05 that is repetitive of other rules and the Ohio Rules of Civil Procedure. Likewise, the proposed rule relating to judicial sales of real estate significantly condenses the relevant current rules on the subject by eliminating much of the language that is simply duplicative of the applicable statutes. When necessary, reference to statutes and rules of procedure remain in the proposed new rule to guide the reader to the appropriate authority, but the text is not repeated. We have made this type of change throughout the proposed rules to streamline them and eliminate potential inconsistencies in the event that an applicable Revised Code section or rule of procedure is amended. In some cases, the proposed new rules have been rewritten for clarity, but without substantive changes. Further, updates have been made to comply with changes in the law. One example is the proposed rule on personal identifiers, which sets forth that all alleged victims in criminal cases must be identified by initials in all court filings. This requirement complies with Marsy’s Law. As many of you are aware, the court made changes earlier this year to its rule on appointed counsel compensation. The proposed rules incorporate these changes and make additional modifications relating to caps on expert expenses. Further, the proposed rules clarify the requirements for inclusion on the appointed counsel list itself. Unfortunately, this article cannot detail all the modifications that the court is proposing in its new set of local rules. I hope to have given you a flavor the types of changes that are being proposed and the thought process behind those changes. Please note that two of the court’s staff attorneys will be presenting on the subject at this year’s Bench Bar conference during the court’s break-out session. Rest assured that you will receive adequate notice when the rules are published for comment. The publication will be in accordance with current Mont. Co. C.P.R. 1.03, which requires a 30-day comment period to adopt, modify, or repeal local rules. Once the comment period begins, I strongly encourage each of you to review the document, ask questions, and provide comments if you feel that a procedure can be addressed in a better and/or different manner. This is the opportunity for you, the practitioners, to review the proposed changes and give the court written feedback. Any comments received by the court during this publication period will be reviewed by the judges to determine if modifications should be made to the proposed rules as published. Just remember that early familiarity with the proposed rules will give you a leg up in your role as a rule follower.

R.L. EMMONS AND ASSOCIATES, INC.

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Trust

842–A E. Franklin Street Dayton, Ohio 45459

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What is The Eikenbary Trust?  Polygraph  Asset Searches  Criminal Defense  Process Service  Witness Locates / Interviews  Surveillance  Civil Case Prep  General Investigation

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

DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

nov/dec 2023 | DAYTON Bar Briefs

Social Justice

Artemis Center Answers the Question “If it's so bad, why don't they just leave?" By Dianne Marx Esq. Member of the Non-profit Clearinghouse Subcommittee

or almost 40 years, Artemis Center, Dayton’s domestic violence resource center, has worked to accomplish simultaneously two goals: (1) provide domestic violence survivors and their children a comprehensive personalized plan that includes crisis intervention, safety planning, education and support and; (2) educate the greater Dayton community on domestic violence. Help is provided through Artemis’s operation of Montgomery County’s 24/7 Domestic Violence Hotline. Its advocates assist survivors who need support and safety planning. Artemis offers other trauma-informed supportive services, including support groups and therapy for adults and children. Advocates provide support and information by accompanying survivors to both criminal trials and civil protection order hearings. To date, Artemis has helped more than 100,000 survivors and their children. Those are real people whose lives have been changed for the better. Because the violence follows survivors to work, worship, daycare centers, schools, grocery stores and on vacation, Artemis also works to educate the community to recognize domestic violence. Through seminars, publications, interviews, and CLEs, Artemis has educated the greater Dayton community on what domestic violence is and how survivors can be helped to achieve safety and self-sufficiency. This local non-profit does this amazing work with a staff of only 22 that consists of 14 advocates, three clinical supervisors, a development manager, marketing coordinator, grant writer, receptionist and the executive director, Jane Keiffer. As a past and current board member of Artemis, I am not skilled enough to assist directly domestic violence survivors. I have, however, learned about this subject from attending board meetings, Artemis events and listening to those truly educated in the topic such as the current and past executive directors and Mike Brigner, former professor, Montgomery County Domestic Relations judge and author of The Ohio Domestic Violence Benchbook. I am no authority but I will try to answer some of the questions Artemis regularly addresses about domestic violence. Although everyone agrees that domestic violence is terrible, many think the statistics, one in four women suffer intimate partner violence in their lifetime and a woman is shot and killed by her spouse or intimate partner every 16 hours, are exaggerated. The response to these tragic facts, and yes, they are facts, is often something like “I’m sure it’s a real problem but I have never met a victim.” Or, “No one in my family and none of my friends have ever been physically abused much less killed by a spouse, boyfriend or partner.” Some even ask “If it’s so bad, why don’t they just leave?” Let’s start at the beginning. Domestic violence is about an abuser gaining and maintaining power and control over an intimate partner. Tactics used by an abuser include physical, sexual, financial, emotional and religious abuse, as well as threats and reproductive coercion. Isolating a victim from family and friends are also used. Abusers often “gaslight” and ridicule their partners, making survivors feel 22

DAYTON Bar Briefs | nov/dec 2023

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 Chris Albrektson at the DBA.

foolish for their thoughts and behaviors. As a result, many survivors may feel shame and embarrassment and make excuses, like the abuser has been under a lot of stress at work, has always had a temper, and they, the survivor, should have been more considerate. As a board member I have met survivors. They cross all socio-economic, class, race and religious demographics, and they exist in all neighborhoods. So why doesn’t a victim just leave? The answer to the question is typically fear. Fear for their personal safety and the safety of their children. Leaving is the single most dangerous thing a survivor can do. This is supported by the fact that 75% of all female intimate partner homicides occur within the first three months of separation. Additionally, in 40 to 60% of families where a batterer abuses their partner they also abuse the children. If the abuser is the children’s biological parent, the survivor may choose to stay rather than take the risk that the abuser will get parenting time alone with the children. A survivor, usually the mother, will take almost any amount of abuse to keep their children safe. Sometimes abusers will decide, “If I can’t have you no one will.” The Montgomery County Domestic Violence Death Review Committee found that 25% of local domestic violence related homicides have been homicide/ suicides with firearms involved in the majority of these cases. Leaving can be a long and difficult process and usually happens in stages. While the vast majority of survivors do leave and never go to a shelter, in the short term they still need safety, time and opportunity to make long term arrangements while fleeing their abusers. Because the domestic violence survivor is often isolated and needs to talk to someone who can help with planning, Artemis assists by providing safety planning and information about what can seem like a complex and intimidating legal system. It also provides information about the affect domestic violence has on the individual and children and gives referrals to other community services. In short, Artemis provides a coordinated response to domestic violence. Because all systems must work together to protect survivors and hold batterers accountable, Artemis formed the Family Violence Collaborative in 1993. This Collaborative has brought together law enforcement, criminal justice, child protection and health care professionals to develop protocols of response. Because Artemis alone cannot help survivors get safe, attorneys are needed to represent them in divorce cases. Artemis focus groups reported that survivors’ barriers to leaving included lack of money to pay attorneys and guardians ad litem. Batterers’ tactics to maintain power and control over their victims often include delaying divorce and custody cases increasing the cost to survivors. The Ohio Domestic Violence Network needs Dayton area attorneys to join their panel and will pay panel attorneys similar to what courts pay for appointed work. Please contact them at 1-800-934-9840 or 614-781-9651 if you are able to assist. And, if you know someone who is experiencing domestic violence, please refer them to the Domestic Violence Hotline at 937-461-HELP (4357).

Become an Ohio Notary!

Through a joint venture with the Akron, Cincinnati, Cleveland, Toledo and Ohio State Bar Associations, the DBA is helping new and renewing notaries across all of Ohio with all of their education and testing needs. Ohio Notary Services (ONS) is truly the one-stop-shop for all things notary in Ohio, including required courses, tests, and notary supplies. Notary Law Checklist: Step 1 Obtain a formal Bureau of Criminal Investigation (BCI) background check Step 2 Visit www.becomeanohionotary.com, attend class virtually and pass the test (if required.) ONS will provide you with a certificate for submission to the Secretary of State. Step 3 Visit the Ohio Secretary of State's website and select File Online to submit your application. Step 4 Return to www.becomeanohionotary.com to purchase your notary supplies. Free standard shipping on all notary bundles! (Use the code “FREE”)

Law Related Organizations Dayton Bar Foundation (DBF)

From the Vice President of the Dayton Bar Foundation

the end of the year approaches, we are asking you to financially support the Dayton Bar Foundation, the charitable giving arm of the Greater Dayton Legal Community. Your contribution will make a real difference in the lives of many people in our local Greater Dayton community. Please help our Dayton Bar Foundation continue its tradition of supporting local community and charitable organizations. We encourage you to join in our Foundation’s mission by making a year-end charitable contribution to the Dayton Bar Foundation a 501(c)(3) charitable organization since 1984. Every dollar received will help to provide grants to local organizations. Thank you in advance for your continued generosity. The Dayton Bar Foundation could not do its good work without your support and participation.

Fred L.Young Esq., Green and Green Lawyers 2023-2024 DBF Vice-President

SUPPORT! The tireless efforts of your fellow members of the legal community who defend those who need it the most.

HELP! Local disadvanted citizens. Families in need of assistance. Those trying to navigate the legal system. Provide wills to those who have served our country.

DAYTON Bar Briefs | nov/dec 2023

STRENGTHEN! The Foundation and charitable giving arm of the Dayton Bar Association as they continue their many great works!

EDUCATE! Professional training in law & leadership for those with a desire to learn about the law and sustain a career in the legal field.

Your Gift Will Help

STRENGTHEN Our Foundation.

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) •Miami University Pre-Law Center •Wills for Heroes All gifts are eligible for charitable deductions on your federal income tax return if you itemize deductions. = = = = = = = = == = = == = = = = = = = = = = = = = DETACH AND RET URN OR SCAN TO DONATE= = = = = = = = = = = = = = = = = = = = = = = =

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nov/dec 2023 | DAYTON Bar Briefs

Law Related Organizations Advocates for Basic Legal Equality (ABLE)

Free Legal Assistance Available to Low-Income Households Facing Eviction Advocates for Basic Legal Equality, Inc., (ABLE), an Ohio legal aid organization with offices in Dayton, Defiance, and Toledo, recently launched a rural eviction relief program to combat the housing crisis disproportionately affecting low and extremely low-income Ohioans. Through the program, low-income tenants of Allen, Auglaize, Champaign, Clark, Logan, Mercer, and Miami counties may be eligible to receive free legal representation if they are facing an eviction or other legal housing issues. “The end of the pandemic’s public health emergency, combined with an increase in housing and rental costs, has created a significant housing crisis in Ohio and across the country,” said ABLE Managing Attorney Matthew Currie. “Rural counties in Ohio surrounding Dayton have been particularly impacted.” According to the National Low-Income Hous-

ing Coalition (NILHC), 443,717, or roughly 28% of Ohio renter households, qualify as “extremely-low income”. Of these, 67% are spending more than 30% of their household income for rent and utilities. Adding to this problem is an extreme shortage of affordable housing. NILHC estimates there are about 254,545 fewer rental homes available than families and individuals who qualify as extremely low-income renters. “Under ABLE’s eviction relief program, an attorney is assigned to represent low-income tenants in municipal court—free of cost—to represent tenants in eviction hearings and with subsidy terminations. The program was designed to help level the playing field when it comes to landlord-tenant law,” Currie said. When it comes to “leveling the playing field,” Currie is referring to the large disparity between

Members on the Move Guidelines:

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 26 26

DAYTON Bar Briefs | nov/dec 2023

landlords represented by attorneys in eviction proceedings, approximately 81% of landlords compared to only about 3% of tenants. “Having access to an attorney can make a huge difference for a tenant in an eviction hearing,” Currie said. “We see unrepresented tenants in court every day who have valid defenses but don’t know how to present them.” Ohio residents can contact ABLE’s Tenant Information Hotline to see if they qualify for free assistance by calling 1-833-777-0277. About ABLE: Advocates for Basic Legal Equality, Inc. (ABLE) is non-profit regional law firm that provides high-quality legal assistance in civil matters to help eligible low-income individuals and groups in western Ohio achieve self-reliance, equal justice, and economic opportunity.

DBA Classified Ads: MEDIATION/ARBITRATION

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Daily Court Reporter..........................................................8 dayton disability foundation....................................21 EIKENBARY TRUST....................................................................19 LCNB Bank...................................................................................19 oBLIC.........................................................................back cover R.L. Emmons & Associates...............................................19 Vorys, Sater, Seymour and Pease LLP................11

ProBono Partnership of Ohio (PBPO)

Election 2024 and 501(c)(3) Public Charities: FAQs

pproximately 75% of Ohio registered voters turned out for the November 2020 Presidential election.1 With the November 2024 looming large, it’s likely that Ohio will see more election-related activities. If you are a Board member or otherwise involved with a 501(c)(3) public charity, keep in mind that federal law bans political campaign activity by these organizations. It does, however, allow them to engage in a limited amount of lobbying and advocate for or against issues in the political arena. Misconceptions abound, and because of confusion around the rules and the potential loss of an organization’s tax-exempt status as a result of breaking them, limitations on lobbying and ban on political campaign activity tend to create a chilling effect on nonprofit advocacy. However, public charities can and should be advocates for the populations they serve and may express opposition to laws, work towards change, and educate voters. This article aims to clarify what these organizations can and cannot do in terms of election-related activity. (See also IRS Revenue Ruling 2007-41).

Candidates

May a 501(c)(3) charity endorse, express support of, or voice opposition to a candidate on a ballot? No. A 501(c)(3) organization risks losing its tax-exempt status if it engages in political campaign intervention. This prohibition includes direct or indirect participation in, or intervention in, any political campaign on behalf of or in opposition to any candidate for elective public office ¬– from candidates for President of the United States to the local school board and every political candidate in between. Can a member of the board of directors of a 501(c)(3) charity run for public office or support candidates running for office? Yes. The prohibition on political campaign intervention encompasses the activities of individuals in connection with their official responsibilities on behalf of the organization, but it does not include their personal activities. To protect the organization’s tax-exempt status, it cannot directly or indirectly authorize or ratify these activities, nor should organization resources be used. A board member should not make partisan comments in either the organization’s publications or at its events. If he or she does express partisan comments, verbally or in writing, it should be made clear that the comments are personal and are not intended to represent the views of the public charity.

Voter Education, Registration, Get Out the Vote

May a 501(c)(3) charity publish a voter guide or candidate questionnaire? Yes, if it is non-partisan. Factors to consider include whether the document covers a broad range of topics and whether all candidates were invited to participate. For example, an organization focused on preserving the environment cannot simply limit the candidate questionnaire or voter guide to topics related to the environment. The organization should refrain from criticizing, praising, grading, or ranking candidates. May a 501(c)(3) charity host a voter registration or get-out-the-vote drive? Yes, if the effort is nonpartisan in approach, mentions either all or none of the candidates, and refrains from targeting members of a specific political party. For example, an organization may target lowturnout areas, minority populations, or students; and may target efforts to the populations it serves but may not target specific neighborhoods because it believes the residents are more likely to vote for a particular candidate or party.

ENDNOTES: https://www.ohiosos.gov/

VOLUNTEER! By Suzanne Beck Esq. PBPO, Dayton Counsel suzanne@pbpohio.org (937) 396-2131 www.pbpohio.org,

Lobbying

May a 501(c)(3) charity support a ballot initiative? Yes. Lobbying, or attempting to influence legislation, is acceptable. Lobbying may be direct (attempting to influence a legislative body through communication with a member or employee of a legislative body, or with a government official who participates in formulating legislation) or indirect (grassroots) (attempting to influence legislation by, for example, encouraging members and the public to contact their representatives and encourage them to vote a certain way on a proposed law). The organization must comply with the lobbying limits and requirements established by the IRS (which are beyond the scope of this article), and with applicable federal and state recordkeeping and reporting requirements.

Issue Advocacy

May a 501(c)(3) charity express support of a specific local cause or advocate against a certain state or federal policy? Yes. This is a type of issue advocacy, wherein an organization communicates its position on social, economic, or philosophical issues that are related to its exempt purpose. If it is not in relation to specific legislation, 501(c)(3) charities can engage in an unlimited amount of issue advocacy provided it does not rise to the level of political campaign intervention. Examples include educating the public on gun safety or access to healthcare. When an organization engages in issue advocacy, it must ensure it is not actually functioning as political campaign intervention. The IRS provides factors to consider when analyzing this very fact-specific area of law.

Pro Bono Partnership of Ohio Can Help

Pro Bono Partnership of Ohio (PBPO) is a nonprofit organization solely dedicated to strengthening qualifying 501(c)(3) nonprofits that serve the greater Dayton and Cincinnati communities by providing pro bono transactional legal services in partnership with attorney volunteers. If you’re a member of a nonprofit board, PBPO can provide legal expertise where you and other board members may not have the background or time on which to focus such as corporate matters, contracts real estate, and employment. If you’re an attorney who wants to share your skills with nonprofits, you can volunteer with PBPO. PBPO also offers educational seminars, webinars, and publications to keep nonprofits current and compliant with legal regulations applicable to the operation of nonprofits. For more information on lobbying and elections, see the PBPO Pro Bono Briefs Lobbying Restrictions and Reporting Requirements for 501(c)(3) Organizations and FAQs: Election-Related Activities and 501(c)(3) Public Charities.

nov/dec 2023 | DAYTON Bar Briefs

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