Dayton Bar Briefs November 2015

The Magazine of the Dayton Bar Association | NOVEMBER 2015 | Vol. 65, No. 3

Dayton

Bar Briefs

DBA 23rd Annual Bench Bar Conference presents:

Making the Legal Sausage: The Past, Present, and Future of the Law

Friday, November 13 | Sinclair College, Bldg. 12 | 8:30-4:00pm

celebrating

800Magna Carta years

Keynote Speakers:

World’s Premier Authority on the Magna Carta!

Justice Judith French

Professor William Henderson

Professor Nicholas Vincent

Supreme Court of Ohio

Indiana University Maurer School of Law

University of East Anglia, England

Dayton

Bar Briefs

CONTENTS

November 2015 | Vol. 65, No. 3

Dayton Bar Association Board of Trustees

Features

3 trusteeS MESSAGE

Changing Seizens- The History of Recording Deeds in

2015 – 2016

Kermit F. Lowery President

Susan D. Solle

First Vice President

Brian L. Wildermuth Mag. Barbara J. Doseck Secretary

Christopher B. Epley Treasurer

Dale E. Creech Jr.

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23rd annual bench bar conference

Lynnette Dinkler Member–at–Large Member–at–Large

By Bonnie Beaman Rice

18

Merle F. Wilberding Member–at–Large

Richard P. Perna

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

William B. Wheeler, ex officio Executive Director

Making the Legal Sausage: The Past, Present, and Future of the Law Friday, November 13th | 8:30am | Sinclair College

bar hunger initiative

Julia J. Martin

By Merle F. Wilberding Esq.

14

16

Member–at–Large

Peanut Butter and Justice

estate planning trust & probate committee Trick or Treat in Probate Court: A Brief Look at the Several Extraordinary Proceedings and their Significance

By David D. Brannon Esq.

cle spotlight Professional Conduct: Top 10 Ethical Mistakes Friday, December 4th | 9:00-12:15pm | DBA Office

By John M. Ruffolo Esq.

20

women in law reception RECAP

By Jade K. Smarda Esq.

Authenticity: Don’t Mentor or Network Without It

Departments 4 Barrister of the Month:

hon. cynthia m. heck

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

Paid subscription: $30 / year

By Michele S. Henne Esq.

12

Continuing Legal education

27

Classifieds & Marketplace

upcoming events 15 Holiday luncheon

Thursday, December 17th | Sinclair College, Bldg 12 | 11:30am

Library of Congress ISSN #0415–0945 William B. Wheeler, Executive Director Shayla M. Eggleton, Coordinator Publications & Design Phone: 937.222.7902 Fax: 937.222.1308

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

Dayton Bar Briefs November 2015

Montgomery County

Second Vice President

2

GUEST SPEAKER: Tony Hall

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chancery club luncheon Friday, November 6th | 11:30am | The Old Courthouse 937.222.7902

trustees message

Changing SeizensThe History of Recording Deeds in Montgomery County O

ne of the most deeply rooted rituals in English Common Law was the livery of seizen to acknowledge to the public that a change in ownership of property had occurred. The buyer and seller would meet on the property and in the presence of witnesses the seller would perform the ceremony of delivery of seizen by handing a twig or clump of dirt from the property to the buyer, acknowledging that he was conveying the underlying lands and tenements.

With the passage of the Statute of Uses in 1536 and the Statute of Frauds in 1676, the livery of seizen became formalized into a paper deed. In America, the recognition of land transfers became a government function and land transfers had to comply with certain basic rules to satisfy the recording requirements: • The whole document must be recorded • The document must be acknowledged in front of a notary public.

• The legal priority is determined by time of recording; and • The document is operative without recording, but no protection is afforded against third party good faith claimants to the property.

Beginning in 1829 in Ohio, a county recorder of deeds and other records became an elective position. Each county recorder had the responsibility to implement a system that recorded copies of documents in a way that fulfilled the state requirements and provided access to the public for the records to the chain of title for each parcel of land.

Handwritten Copies. The methodology of

recording during the 1800’s was consistent and reflected the technology of the times.

The original of the deed would be taken to the Montgomery County Recorder’s office.

There, the entire deed would be rewritten by a clerk, often in the most beautiful handwritten style. Specimens of these beautiful handwritten copies are in volume after volume of these old records, many of which are now available on the 6th floor of the Reibold Building in the Montgomery County historical repository. Some of these old deeds are now backed up by duplicate copies that were typed as a part of the public restoration projects following the 1913 Flood. www.daybar.org

By Merle F. Wilberding1 Member at Large Coolidge Wall Co., LPA

This is Deed from George Harris to John Landaman that was handwritten in 1815, and then a duplicate copy was typed for preservation purposes and funded by restoration funds following the 1913 flood.

Typed Copies. In the early 1900’s the Recorder’s office created typed copies of deeds, and

those hand-typed copies became official recorded documents, the standard until the late 1930’s when the next iteration of recording technology became available.

Photostat Copies. The use of photostat machines in Montgomery County, beginning in

about 1930, created a very unique copy of a real estate document. This unique system reverses the images, the result is a white text on a black background that continues to challenge anyone who has done title research and analysis in Montgomery County.

Photo Copies. In the 1950’s the reverse photostat “black copies” gave way to photocopies of

the documents. The unusual feature of this method of recording is that the marginal notes made on the page became part of the official chain of title. For example, a mortgage executed and recorded in 1952 might reflect a handwritten “marginal release” made in 1968. This handwritten release was the only confirmation of the mortgage being released. Typically, there was not a separate document executed and recorded that released the mortgage.

Microfiche Copies. Beginning in 1973, Montgomery County recorded on documents on microfiche cards, small cards containing five rows of images down (A through E) and twelve images across (1 through 12), thereby setting up such reference cites as 73-01234-B06.

AS400 System. In the late 1990’s through the year 2000, the Recorder’s Office converted to a

digital system for making copies of deeds, using a land records management system that ran on an IBM AS400 computer system. Within the Recorder’s Office this system has always been referred to simply as the AS400 system. The document imaging with the AS400 significantly improved the speed of giving access to the public of land records and, at the same time, significantly lowered processing costs. By 2009 the benefits of the AS400 system had been fully consumed and there was more modern technology offering new and better ways of preserving land records and giving the public access to them. continued on page 5 November 2015 Dayton Bar Briefs

3

Barrister of the month

Hon. Cynthia M. Heck

T

hough it's easy to be intimidated by Judge Cynthia Heck (especially since she's a judge and my boss's wife!), her warmth and downto-earth nature immediately put me at ease. Instead of the usual in-office meeting, Cindi suggested we take a walk with her two dogs, Grace and Ann. So on a beautiful autumn afternoon in October, I had the great pleasure of speaking with Cindi while we walked her two dogs in the fall foliage.

Cindi was raised in Chicago and was the youngest of three children. She describes her childhood home as traditional. Her mother was a stay-at-home mother and her father was the owner and operator of Home Juice Company, a business that delivered orange juice and other fruit juices door to door. From an early age, Cindi was taught the value of hard work and her parents emphasized the importance of a strong work ethic. Her first job was doing payroll at her father's company for a minimum wage salary of $2.10 per hour.

In high school, Cindi then worked at a department store in Chicago.

Even through her college and law school years, Cindi continued to hold jobs in addition to pursuing her academics.

Cindi attended and graduated from the University of Dayton because of its reputation as a strong Catholic university. Similar to many young scholars today, Cindi did not immediately set out to be an attorney. She found herself gravitating towards a major in American Studies, which allowed her to combine multiple disciplines including sociology, psychology, and political science. She also minored in philosophy. (It's no wonder one of her favorite recent trips was to London where she was able to celebrate the 800th anniversary of the signing of the Magna Carta!). But it was both her constitutional law class (where she was required to brief legal cases) and an internship at the Montgomery County Prosecutor’s Office which forever changed her future. On the first day of her internship, she approached Helen,

Dayton Bar Briefs November 2015

continued on page 7

Judge Heck and husband, Montgomery Cty Prosecutor Mathias Heck Jr.

Judge Heck with her beloved dogs Grace and Ann 4

the receptionist. Eager to start, Cindi introduced herself and asked what to do next. Helen then responded, "Honey, there are 30 lawyers down these hallways, pick one and I'm sure they'll have something for you to do." She proceeded down the hallway and stopped in front of the office of the loudest voice in the hallway. Little did she know, she was stopping in front of the office of her future husband, Mathias Heck, Jr! Though we might have assumed it was a love at first sight or immediate match made in heaven, Cindi states she was just so enthralled with learning all different aspects of criminal law prosecution.

Similarly, Mat was focused on mentoring her, making introductions to judges, sitting in on pretrial conferences with witnesses, and providing a general experience at the prosecutor’s office.

As a result of her experience at the prosecutor’s office and her constitutional law class, Cindi decided to attend the University of Dayton School of Law. As a law student, Cindi completed another internship with the Montgomery County Prosecutor’s Office and found herself again working closely with Mat. By her third year of law school, Cindi started working for Mat and his father's law firm, Heck & Heck, for about ten hours a week, primarily doing research.

Cindi states the practice of law has evolved significantly since she attended law school. Specifically, she notes there were few women attorneys and those who did practice typically opened their own law practices together. Due to the culture of law practice in Dayton at that time, Cindi was surprised when she was asked to join Heck & Heck as an associate. Since she enjoyed working with Heck & Heck in law school, she gladly joined their legal practice. Though she worked on misdemeanors offenses, she focused primarily on civil law:

937.222.7902

trustees message: History of Recording Deeds

continued from page 3

Resolution 3 System. On December of 2011, the Recorder’s Office upgraded its technology by switching to Resolution 3, a land records management system developed by Cott Systems, Inc., a software development company headquartered in Columbus, Ohio.

The Resolution 3 system enables recorded documents to be scanned immediately upon presentation at the input desk. (Under the AS400 system the documents had to be physically taken to the archive center at the Reibold Building for imaging.) This has significantly increased the speed of public access to the document and cut by one-half the speed of returning the original documents to their owners.

Over the years I have always been concerned about saving documents on a digital system because I have had a number of experiences in which I had data on some format, e.g., a floppy disk, but I had no machine on which to read it. I knew from my own library studies that micro-film and micro-fiche are generally considered the most permanent method to preserve documents, primarily because the document itself is visible and can if necessary be read with a light and a magnifying glass.

So, for those like me who have always enjoyed the micro-fiche system for its logical design and numerical simplicity, I was happy to learn that the micro-fiche system is still alive and well. It is still used to record a back up copy of every recorded document, and these micro-fiche copies are then taken off-site for preservation to be used in the event of a disaster.

The Future. Members of the Dayton Bar are familiar, of course, with electronically filing in the federal courts and the Common Pleas courts. Right now about one-half of Ohio’s eighty-eight counties have partial or complete electronic filing of land records.

But there are differences between the court-

www.daybar.org

filing process and the deed-filing process that will require coordination between other county offices. In the current recording process, the legal description is submitted to the County Engineer’s Office for approval, and then the deed is presented to the County Auditor’s Office who officially transfers the property to the new owner. Only then can the deed be presented to the County Recorder’s Office for scanning and recording so that it will be put into the proper chain of title and be available to the public.

When the Recorder’s Office converts its system to electronic filing, it will have to coordinate it with the County Engineer and the County Auditor so that all three agencies are on the same page in processing incoming deeds and other land records.

We can expect electronic filing to be coming to Montgomery County in the next one to two years, in part because the Recorder’s Office will be required to convert to electronic filing in order to satisfy the TRID Rules issued by the new Consumer Finance Protection Bureau. (TRID stands for the TILA -RESPA Integrated Disclosure.

“TILA” stands for the Truth in Lending Act, and “RESPA” stands for the Real Estate Settlement Procedures Act.) Looking back, it is clear that the last 500 years have really experienced the changing seizens. What a seller of land used to do by handing a twig or a clump of dirt to the buyer, the seller will soon be doing by hitting the “SEND” button on a computer and miles away, sometimes thousands of miles away, a buyer will electronically receive the underlying lands and tenements. Even within the last 100 years the recording system has changed from handwritten deeds preserved by leather-bound books to digital deeds stored in the cloud. And so it is, the changing seizens have been changing seasons in our own lives.

Endnotes: 1 Member, Board of Trustees, Dayton Bar Association. Attorney, Coolidge Wall,

Co. LPA. B.A., St. Mary’s University (Minnesota), J.D., Notre Dame School of Law, LL.M (Tax), George Washington University, M.B.A., University of Dayton, M.L.I.S., University of Wisconsin – Milwaukee. I want to thank Willis Blackshear, Montgomery County Recorder, and Heather Bennett, Director of Operations at the Recorder’s Office, for their time and courtesy in discussing this topic with me.

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Dayton Bar Briefs November 2015

Bill Wheeler, bwheeler@daybar.org Chris Albrektson, calbrektson@daybar.org

937.222.7902

Barrister of the month: HON. CYNTHIA M. HECK

continued from page 4

property, contracts, personal injury, and probate. After working with Mat for several years, Cindi notes their mutual respect and admiration then grew into a great love.

Cindi and Mat eventually got married. Together they raised two children, Tiffany and Mathew. When Tiffany and Mathew were young, Cindi enjoyed being in private practice because it allowed her to have a flexible work schedule to attend school events and programs. And though being involved in the Education Commission or homeroom mom may seem arduous to some, Cindi seemed to recall those moments with fondness. In addition to providing this support for both of her children, it was very apparent Cindi values hard work, a strong work ethic, and fairness. Due to her love, support, and strong values that she was able to instill in her children, Cindi and Mat were able to raise two successful children together. Tiffany is currently the Development Director for The Boys and Girls Club in Naples, Florida and Mathew works for Karl Keith in the Montgomery County Auditor’s Office.

Cindi's hard work, sense of fairness, and justice have contributed to her successful career as well. While in private practice, Cindi enjoyed negotiations because it allowed her to see both sides of a dispute and come to a fair resolution. After establishing herself as a successful attorney, Cindi was asked to sit as a Visiting Judge in Vandalia Municipal Court by Judge Richard Bannister. She found the position of Visiting Judge to be both rewarding and interesting. Specifically, she liked to be able to hold people accountable for their actions while also providing services and assistance to overcome obstacles. After sitting as a Visiting Judge approximately once a month for several years, Cindi successfully ran for the position of Vandalia Municipal Court Judge after Judge Bannister retired. And on November 8, 2005, Cindi was sworn in as Judge for the Vandalia Municipal Court.

Since becoming Judge in 2005, Cindi still finds her position as rewarding as when she first started as a Visiting Judge. She has a strong sense of community and justice. She stresses the importance of being fair while also emphasizing the need to be compassionate in her position. Additionally, Cindi appreciates her position as a Judge because she is able to provide services for others to address anger management, substance abuse, and other issues. She also strongly believes in providing assistance for individuals to obtain valid driver’s licenses.

She finds cases in which individuals have turned their life around, addressed their issues, and do not re-offend to be the most rewarding.

In addition to a strong sense of justice and fairness, she also prioritizes maintaining a balance in her life. At home, she loves to cook and bake (her staff enjoys chocolate chip cookies from time to time!).

She also enjoys the outdoors. Her outdoor hobbies include gardening, mowing the lawn, and hiking. In fact, it's not uncommon to find she and her husband going on bike rides together or hiking in Hocking Hills with their two dogs.

At the end of our hike with her two dogs, I knew I would continue to be impressed with Cindi's accomplishments. But what I didn't expect was to be completely enthralled with her down-to-earth personality, her hard working nature, and her innate sense of justice. With Cindi's accomplishments, both personally and professionally, it would be easy for her to be arrogant or even cocky but she is categorically neither. It is certainly well overdue, and my pleasure, to recognize Cindi on behalf of the Dayton Bar Association as this month's Barrister of the Month.

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November 2015 Dayton Bar Briefs

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Peanut Butter and

Dayton Bar Association

JUSTICE

congratulations!

for more info on the

BAR HUNGER initiative read Bonnie’s article on pg 14

8

Dayton Bar Briefs November 2015

937.222.7902

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November 2015 Dayton Bar Briefs

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The Dayton Bar Association 23rd Annual Bench Bar Conference presents:

Making the Legal Sausage: The Past, Present, and Future of the Law 2015 Co-Chairs:

Honorable Dennis J. Adkins

Attorney Terry W. Posey Jr.

Montgomery Cty. Common Pleas Ct.

Thompson Hine

800Magna celebrating

years

Seminar Details: PLENARY SESSION 1 The Past: The Magna Carta

Carta

DBA 23rd Annual Bench Bar Conference Friday, November 13 Sinclair Community College, Bldg. 12 8:30-4:00pm CLE#009

This year’s seminar: Titled Making the Legal Sausage: The Past, Present, and Future of the Law. The focus of this year’s conference is developing an understanding of how lawyers helped the law develop in the ancient past, in the present day, and into the future. Plenary sessions will focus on the development of the Magna Carta (celebrating its 800th anniversary this year), a discussion of how cases are accepted and decided at the Ohio Supreme Court, as well as a discussion of the future of the legal profession and legal decision-making. The breakout sessions this year will be focused on the conference’s theme: judges from the local appeals, common pleas, domestic relations, juvenile, probate, and federal courts will be discussing how they decide cases and what the practitioner can do to assist the judge in reaching a favorable outcome. The conference will conclude with the very popular “speed networking” session between participating judges and attorneys.

This year’s conference is not to be missed!

Keynote Speakers: PLENARY SESSION 2 The Present: The Interworking of the Supreme Court of Ohio

World’s Premier Authority on the Magna Carta!

Prof. Nicholas Vincent University of East Anglia, Justice Judith French

England Supreme Court of Ohio

Magna Carta is possibly the most famous document in the history of the English speaking world. It PLENARY SESSION 3 is assumed to lie behind an entire The Future of Law William Henderson tradition of 'freedoms' and Prof. 'liberties' trumpeted as the Indiana University Maurer particular birthright of the English School of Law speaking nations. Issued in 1215 by 'bad' King John, it was highly significant in English, American and European legal and constitu- PLENARY SESSION 4 Building Bridges between the tional history. Yet Magna Carta Bench and Bar: Roundtable itself remains surprisingly little Discussion with Judges read, and for the most part more th or less forgotten. In this, its 800 anniversary year, it is right that Magna Carta should once again be the focus of world-wide attention.

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Justice Judith French

Professor William Henderson

Professor Nicholas Vincent

Supreme Court of Ohio

Indiana University Maurer School of Law

University of East Anglia, England

How to Register: www.daybar.org/cle 937.222.7902 view full agenda on next page>>>

program agenda:

d e d d u t !

S p r U a t e S n i L r e k a Spe

8:30-9:30am PLENARY SESSION 1

The Past:

The Magna Carta

Prof. Nicholas Vincent

University of East Anglia, England 9:30-9:45am BREAK 9:45-10:45am BREAKOUT SESSION 1

»Municipal Courts »United States District Court »Common Pleas Court 10:45-11:00am BREAK 11:00-12:00pm PLENARY SESSION 2

The Present:

The Interworking of the Supreme Court of Ohio

Justice Judith French 12:00-12:45pm LUNCH 12:45-1:45pm BREAKOUT SESSION 2 »Second District Court of Appeals »Domestic Relations Court »Probate Court »Bankruptcy Court »Juvenile Court 1:45-2:00pm BREAK 2:00-3:00pm PLENARY SESSION 3

The Future of Law

Prof. William Henderson

Indiana University Maurer School of Law 3:00-3:15pm BREAK 3:15-4:00pm PLENARY SESSION 4

Building Bridges between the Bench and Bar: Roundtable Discussion with Judges

www.daybar.org

Professor Nicholas Vincent University of East Anglia, England

World’s Premier Authority on the Magna Carta!

Learn the interworkings of the Supreme Ct!

Justice Judith French Supreme Court of Ohio

Author of the 2015 October ABA Cover Story!

Professor William Henderson Indiana University Maurer School of Law November 2015 Dayton Bar Briefs

11

register online: daybar.org/cle ’Talkin bout my Generation: The Ethical & Professional Issues that Create Friction Among Different Generations of Lawyers #050

key:

M=Member Rate NM=NonMember Rate PP=Passport MP/NL=Member Paralegal/ New Lawyer Rate NMP/NL= NonMember Paralegal/ New Lawyer Rate

Register:

www.daybar.org/cle 937.222.7902

The Story Behind the Headlines at Camp GITMO-Guantanamo Bay, Cuba #044 November 4 | 9:00-12:15pm | 3.0 hrs M $120 | NM $165 | PP $30

Speakers: Justice Steven David- Indiana Supreme Court, Dale Vitale, Section Chief OHIO AG’s Environmental Law Group, Kermit Lowery Esq. - DBA President

2015 Elder Law Update Seminar #046 November 5 | 8:45-4:30pm | 5.5 hrs M $215 | NM $300 | PP $30 Sinclair College, Bldg 12

Stress in the Legal Profession – Professional Conduct (video) #047

November 10 | 1:00-4:15pm | 3.0 hrs Prof. Conduct M $105 | NM $150 | PP $0

23rd Annual Bench Bar Conference Making the Legal Sausage: The Past, Present, and Future of the Law #009

November 13 | 8:30-4:00pm | 6.0 Gen hrs or NLT hrs* M $195 | NM $295 | PP $30 Sinclair College, Bldg 12 *Parking and Lunch included see agenda details on pages 10 & 11

Domestic Relations 101 #049

November 18 | 9:00-12:15pm | 3.0 hrs or NLT hrs* Speakers: Jennifer L. Brogan Esq., Bieser Greer and Landis and Brian A. Sommers Esq., Kirkland and Sommers AGENDA: The practice of family law has become increasingly complex and sophisticated. This seminar is designed for domestic relations practitioners who need an understanding of the applicable law to succeed and thrive.

Topics will include Montgomery County Local Rules and Forms and well as Property Division, Spousal Support and Child Custody and Child Support. In addition, the course will help you develop the skills necessary for contested family law proceedings and you will hear invaluable practice pointers from experienced faculty.

This program is geared toward attorneys and paralegals who are new to Domestic Relations/family law, starting a Domestic Relations practice, or wishing to improve their family law skills.

-9:00-10:00am Montgomery County Local Rules and Forms -10:00-10:30am Property Division -10:30-10:45am BREAK -10:45-11:30am Spousal Support -11:30-12:00pm Child Custody and Child Support -12:00-12:15pm Question & Answer Session 12 Dayton Bar Briefs November 2015

November 19 | 8:45-Noon | 3.0 hrs Prof. Conduct M$105 | NM $150 | PP $0 Speaker: Stuart I. Teicher Esq. AGENDA: Boomers, Gen X, and Millennials are all practicing side by side. They each have different views about life, work, and attorney ethics.

Join the “CLE Performer” Stuart Teicher, as he explores the friction that exists between the generations (Rules covered will include RPC 1.1, RPC 5.2 and RPC 8.3 as well as professionalism concepts) Topics: · What are the different generations and why are there ethical problems among them? · The role of technology in our personal and professional lives, and how it’s causing ethical problems among generations · Different approaches toward behaviors like assertiveness and collegiality. · The evolution of our larger professionalism goals as generations advance (diversity and access to justice) · Differing opinions about work-life balance issues among generations and how that affects the mental health of all lawyers. · Generation-influenced gender bias issues

Juvenile Court Attorney Certification Training #030 November 20 | 9:00-4:45pm | 6.0 hrs or NLT hrs* M $215 | NM $300 | PP $0 <2 yrs M $150 | <2 yrs NM $200

Professional Conduct: Legal Malpractice Issues and Ethical Traps (video) #051

November 24 | 9:00-12:15pm | 3.0 hrs Prof. Conduct M $105 | NM $150 | PP $0

Diversity Roundup #082

December 7 | 12:00-1:00am | 1.0 hr M $35 | NM $45 | PP $0

Labor & Employment Roundup #067 December 7 | 1:30-4:45pm | 3.0 hrs M $105 | NM $150 | PP $0

Federal Practice Update with the Judges #064

December 8 | 8:30-11:45am | 3.0 hrs M $105 | NM $150 | PP $0 Speakers: Judges Thomas M. Rose; Timothy S. Black; Walter H. Rice; Michael J. Newman; Sharon L. Ovington and Michael R. Merz

Appellate Practice Update from the Court #065 December 8 | 1:00-4:15pm | 3.0 hrs M $105 | NM $150 | PP $0

Domestic Relations Update #066 December 9 | 8:30-11:45am | 3.0 hrs M $105 | NM $150 | PP $0

Civil Trial Update #061

December 10 | 8:30-11:45am | 3.0 hrs M $105 | NM $150 | PP $0

The Workers Comp Practitioner as a Jack –Of-All Trades: How a Workers’ Comp Attorney Must Also be a General Practice Attorney #068

Juvenile Law: GAL Updates #060

December 10 | 12:30-3:45pm | 3.0 hrs M $105 | NM $150 | PP $0

DBA Young Lawyers Division presents:

Judge Langer’s 2015 Criminal Law Update (Survey of US Supreme Court, Ohio Supreme Court and Ohio Appellate Case Law) #032

December 1 | 9:00-12:15pm | 3.0 hrs M $105 | NM $150 | PP $0

The Core Requirements: Professionalism, Client Fund Management and Office Management #062 December 2 | 9:00-12:15pm | 3.0 hrs Prof. Conduct NLT hrs* M $105 | NM $150 | PP $0

Estate Planning Update #063 December 2 | 1:00-4:15pm | 3.0 hrs M $105 | NM $150 | PP $0

DBA Criminal Law Committee presents:

Criminal Law Certification #031

December 3 | 8:00-3:45pm | 6.5 hrs; NLT hrs* M $220 | NM $310 MP/NL (< 2 yrs) $110 | NMP/NL (< 2 yrs) $155

Professional Conduct: The Top 10 Ethics Mistakes #053

December 4 | 9:00-12:15pm | 3.0 Prof. Conduct hrs; NLT hrs* M $105 | NM $150 | PP $0 Speakers: John M. Ruffolo Esq., DBA Bar Counsel Mark A. Tuss Esq. and Denise L. Platfoot Lacey Esq., UDSL see agenda details on page 18

visit daybar.org/cle for future listings + updates & full agendas

December 11 | 9:00-12:15 pm | 3.0 hrs M $105 | NM $150 | PP $0 Speaker: Judge Dennis J. Langer, Mont Cty Common Pleas Ct AGENDA: Judge Langer will review a wide spectrum of cases addressing search and seizure, confessions, pretrial identification, waiver of counsel, substantive criminal law, no contest pleas, rules of evidence, trial procedure, sentencing, probation revocation hearings, and other miscellaneous issues.

TOPICS: Hour #1: Search and seizure, confessions, pretrial identification Hour #2: Waiver of counsel, substantive criminal law, no contest pleas Hour #3: Rules of evidence, trial procedure, sentencing, probation revocation hearings, and miscellaneous issues

Real Property Update #070 December 15 | 9:00-12:15pm | 3.0 hrs M $105 | NM $150 | PP $0

Environmental Law Update #071 December 15 | 1:00-4:15pm | 3.0 hrs M $105 | NM $150 | PP $0

937.222.7902

daybar.org

dba cle paperless initiative The DBA has embraced a greener approach to producing CLE programs. This exciting initiative involves promotion of many CLE programs through exclusively electronic mediums (such as email, DBA website, and Facebook page) rather than through print.

To Serve Your Evolving Needs e-materials will provide you with more flexible options for storing and accessing your seminar materials (before, during, and after the seminar) and will be available for download by seminar registrants before programs on the DBAs website.

Providing a Supportive Learning Environment

We hope you join us GO GREEN!

www.daybar.org

- To facilitate convenient access to your e-materials on your tablet or laptop during seminars, the DBA has increased the bandwidth of the wireless network within our offices.

- Weâ&#x20AC;&#x2122;re flexible. While e-materials will be the main format for future seminars, we understand that some programs will not lend themselves to e-materials. In such cases, print handouts will be provided, in all cases where e-materials are used, print handouts will be available for purchase for a small additional fee.

Environmental and Fiscal Responsibility By reducing our use of print materials, we will eliminate unnecessary paper waste and expenses.

Looking for eMaterials?

Visit our eLibrary to download materials and seminar content prior to, during and after seminar: http://daybar.org/cle/elibrary.php

Whom Can I Contact?

Please contact CLE Director, Jennifer Otchy with any questions you may have jotchy@daybar.org or 937.222.7902.

November 2015 Dayton Bar Briefs

13

BAR HUNGER INITIATIVE

By Bonnie Beaman Rice Bar Hunger Initiative

The ranking no one wants to hold:

A 2013 Food Research and Action Center report ranks the city of Dayton as the ninth “hungriest “city in America, with Ohio ranking as the third worst state in the nation for hunger. This is not a reference to our appetite for the arts, great basketball or innovative ideas.

No, this is the hollow, pit-of-your -stomach hunger pangs that come from having too little food to eat. The latest moniker is “food insecurity” and it means that our citizens are forced to weigh the painful choice between paying utility bills, buying needed medications or putting food on the table. Seventeen percent of Dayton’s residents fall into this category, including 39,390 children!

What are the effects of long-term hunger?

It’s like the old Mother Goose nursery rhyme “This is the House That Jack Built,” a cumulative tale that links a series of happenings with one causing the next and that causing the next, and so on. Studies have shown that inadequate nutrition has a direct link to delayed brain development. An impaired ability to learn reduces academic achievement and increases absenteeism, resulting in lower test scores and more disruptive classroom behavior. Hunger decreases the body’s immunity while increasing fatigue and emotional problems. All of these difficulties can negatively impact the ability to enter the work force, while increasing health care costs and crime statistics. What’s decreased is the standard of living, a sense of spirituality, and strong family and societal relationships. In short, good nutrition is the foundation upon which Jack’s house can remain standing, or without which, it falls apart. It’s not just Jack’s problem, it’s ours.

What is the Challenge?

Many community organizations have acted to address this problem, but it is wide spread and it is time that we step ‘up to the plate’ and participate in the solution. Each day that passes wherein a child suffers from hunger…is one day too many.

The “Bar Hunger: Peanut Butter and Justice Challenge” is a project of the Dayton Bar Association to address the issue of hunger in our community. The challenge to each of us: Bring at least one jar (or more!) of peanut butter to every Bar event. Whether you are attending a Committee meeting, a CLE, the Bench Bar Conference the Chancery Club, the Holiday Luncheon, etc. bring peanut butter and designate which Bar committee is to be given credit for your donation. At the Annual meeting in June, the committee collecting the most peanut butter, measured in pounds, will receive the Peanut Butter League Trophy (engraved with the date and committee name) and attendant bragging rights for the year.

14 Dayton Bar Briefs November 2015

Why peanut butter?

It’s packed with nutrition and kid-friendly.

How this works:

The DBA has established its own Peanut Butter League (PBL) (not to be confused with the NFL) and a Peanut Butter and Justice Commission, whose members shall remain anonymous. The commission will make up the rules and regulations ad hoc, which are subject to change at whim, without prior notification. The current rules are:

• Bar members bring at least one jar of peanut butter to every Bar event

and designate which Bar committee is to be given credit for the donation; • In lieu of peanut butter, monetary donations will be accepted in increments of $2.50, with each such increment counting as one pound of peanut butter; • Committee Chairs will keep a running tally of the amounts (pounds of peanut butter and money collected) and report those results to Chris Albrektson at the DBA by the last day of each month; • Public challenges to compete against other committees, law firms, and the like, are welcome and encouraged; Committee chairs shall also report those challenges to Chris by the last day of each month; • Each month between now and the Annual meeting, Bar Briefs will run a list of the current tallies, showing which committee is in the lead, as well as a list of the public challenges; • You may enlist the aid of any other groups (faith-based, clubs, clients, etc.) to help collect peanut butter as long as the donations are brought to the DBA offices and designated to a specific Bar committee; • We don’t want an ‘inflate-gate’ scandal: any artificial inflating of the pounds collected is prohibited; • Bribes to the Commission members are not permitted (which would be difficult inasmuch as they are anonymous) unless, of course, the bribes come in the form of peanut butter and are dropped off at the Bar offices.

And that’s it in a nutshell.

Why should you participate?

As Bar members, the community looks to us for leadership.

As lawyers, we are dedicated advocates for social justice.

As individuals who have been blessed with much, it is simply the right thing to do.

Accept the PEANUT BUTTER and JUSTICE

CHALLENGE today!

937.222.7902

Holiday Luncheon

DBA Holiday Luncheon Thurs. December 17 | Sinclair College Doors open at 11:30am Guest Speaker: Tony Hall *Former U.S. Ambassador to Rome *Three Time Nobel Peace Prize Nominee *U.S. Chief of the World Food Project

Join celebrating the efforts of the Greater Dayton Volunteer Lawyers Project.

Visit www.daybar.org â&#x20AC;&#x153;Special Eventsâ&#x20AC;? Calendar for registration details

www.daybar.org

Let the DBA help YOU Invest In Your Business several advertising options to choose from Contact Shayla publications@daybar.org Or Call 937.222.7902

November 2015 Dayton Bar Briefs

15

estate planning trust & probate

Trick or Treat in Probate Court: A Brief Look at Several Extraordinary Proceedings and their Significance M

any attorneys, and myself occasionally, are surprised by what may be accomplished in the jurisdictional brew of probate court. At first glance, many attorneys believe the jurisdictional limits of Probate Court are confined to administration of estates, guardianships, testamentary trusts, and mental illness proceedings. However, Ohio Revised Code Section 2101.24 provides an enormous laundry list of areas of the law that trigger jurisdiction, as do other applicable statutes under Titles 21, 31, 53 and 58. Within this jurisdictional labyrinth are procedural mechanisms for accomplishing a number of things that could benefit clients beyond what initially seems possible.

Those same procedures may also mean jail time or hefty monetary penalties for those that fail to believe.

The scope of this article discusses some of the seemingly obscure, but surprisingly effective procedures, what may be accomplished by using them, and what evidence may be needed to bring such actions.

I should point out that most of the areas of law discussed in this article relate primarily to post-mortem issues and fiduciary law.

Common Law Marriage

Much like ghosts, we have all heard of common law marriages.

Some of us believe they exist, whereas most do not. As of October 10, 1991, Ohio Revised Code Section 3105.12(B)(1) outlawed the creation of common law marriages in Ohio. However, pursuant to that same section, common law marriages established prior to 1991, remain valid.1 Obviously the status of spouse at death is colossal to the other spouse, to heirs, to creditors, and to all others connected with the couple. Despite having never been married in the traditional sense of a “legal marriage,” a declaration by the probate court would treat the couple as if a “legal marriage” occurred prior to death.

Advantages are too numerous to name. A surviving spouse would be able to lay claim to Social Security benefits, pensions, retirement accounts, ERISA-governed accounts, rights of surviving spouse in estates (including right to take under or against the will, family allowance, rights regarding real property and personal property)2 , and pursue wrongful death and survival damages. Normally, only competing beneficiaries would pursue a declaratory judgment from probate court alleging or contesting a common law marriage.

If the following three elements are established by clear and convincing evidence, Ohio courts should recognize that a common law marriage was established, and all rights and obligations with a legal marriage, would apply to the partners. A proponent that the marriage existed must prove: (1) an agreement of marriage in praesenti; (2) cohabitation as husband and wife; and (3) a holding out by the parties to those with whom they normally come into contact, resulting in a reputation as a married couple in the community.3 An agreement in praesenti “may be proven either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, acts, declarations, and the other conduct of the parties and their recognized status in the community in which they [resided].” 4 For example, testimony of a witness describing his eyewitness account that a public proposal occurred prior to 1991. The second element may be fulfilled by evidence that “the parties had sexual activity in the 16 Dayton Bar Briefs November 2015

By David D. Brannon Esq. Vice-Chair: Estate Planning Trust & Probate Committee Brannon & Associates open manner of husband and wife in a marital state.”5 Children are a less-graphic means of proving the couple engaged in sexual activity.

Finally, as to the holding out of the marriage, it may be “to those with whom they normally [came] in contact.”6 A holding out of marriage may be shown through joint holdings of property and joint filings of tax returns.7 If you are involved with a more seasoned client that may have had a long-term relationship with a significant other, especially if recently deceased, knowing marital status is very important to many aspects of good counseling by you. Perhaps there is an opportunity to provide a treat for your client if the above-criteria can establish a common law marriage. If counseling a non-married client in a long-term relationship, at a minimum, warn the client to have last wills drafted.

At a maximum, direct the client to immediately elope and head to Las Vegas. Though the expression “until death do us part” is all too common, perhaps it is meaningless in the context of common law marriages. Like ghosts, plenty of strangeness may go on between older couples, long after death.

§ 2109.50 Proceedings when Assets Concealed or Embezzled

Although converting property is a nasty trick, impermissible even at Halloween, there is one formidable method for retrieving estate, trust, or guardianship property from others who may unlawfully hold such property. Broadly speaking, concealment actions are adversarial proceedings to discover concealed assets belonging to estates, trusts, or guardianships, which is not a substitute for a civil action.8 Although not considered a “substitute,” a favorable ruling may supplant the need to file traditional actions involving claims of conversion, breach of trust, tortious interference with expectancy of inheritance, or seek relief including declaratory judgments, injunctive relief, or constructive trusts. When proper, a fiduciary (administrator, executor, guardian, or trustee), court, or other person interested in such property, may file a complaint in probate court, initiating this action.9 As a warning, case law limits concealment proceedings to matters involving only personal property—not real property.10 It makes sense, as the prospect of concealing or embezzling a home would be a clever ruse. However, despite that drawback, this action can be extremely quick when compared to the normal response formalities continued on page 17 937.222.7902

estate planning trust & probate: Court Proceedings continued from page 16

and deadlines of civil proceedings applying the Ohio Rules of Civil Procedure. Essentially upon “complaint” made to the probate court, a court shall “by citation or other judicial order compel the person or persons suspected to appear before it to be examined.” 11 A strict reading of the statute states that the probate court shall compel person(s) to attend a hearing and answer questions related to the concealment of property.12 That does not necessarily mean a respondent has the right to file an answer (or other pleading), or conduct discovery under the Ohio Rules of Civil Procedure. As a practical matter, I have seen courts permit answers, motions, discovery, and apply all other aspects of the Civil Rules in these matters.13 I have also seen courts refuse to follow the Civil Rules, simply because the statute did not permit something beyond the strict text of the statute. Although statutory, this procedural mechanism is terrifying, in that it is quasi-criminal in nature.14 Upon a favorable verdict by the judge or jury, a defendant is found guilty of concealment.15 The criminal aspect alone, creates a mystery as perplexing as the Bermuda Triangle.

“Concealment can occur in four different ways: concealment, embezzlement, conveyance or possession of an estate asset.”16 Peculiarly, a plaintiff must prove by a preponderance of the evidence that a defendant is guilty of receiving property and concealing it.17 That is certainly a lower bar than one might expect given the nature of the remedy. If a finding of guilty is rendered in favor of a fiduciary, there is a mandatory penalty of 10% and costs awarded against the offender.18 Additionally an award of prejudgment interest and attorney fees may be awarded to the successful plaintiff at the court’s discretion.19 Finally, jail time is even possible for a nonresponsive offender. The probate court “shall commit the person to the county jail” if a defendant refuses to participate in the proceedings.20 In sum, you can help clients not only retrieve tangible and intangible personal property belonging to a trust, estate, or guardianship, but also increase the value of the recovery by securing mandatory penalties and possibly interest or attorney fees. It may be a very speedy process as well. Occasionally, there is an underlying surety that may be subject to a motion to surcharge, making a bonding company directly liable for any misfeasance or malfeasance that is committed by a fiduciary.21 A finding of guilty may send a wrongdoer straight to the gallows.

Children Born out of Wedlock

In the true spirit of Halloween, one of the more wicked statutes of the Ohio Revised Code is Section 2105.17. It states, “Children born out of wedlock shall be capable of inheriting or transmitting inheritance from and to their mother…as if born in lawful wedlock.” The context relates to the ability of illegitimate children to inherit through the laws of intestate succession under R.C. 2105.06. Although more complex, the statute essentially means that illegitimate children cannot inherit through their fathers unless paternity is established prior to death.22 There are exceptions in proving paternity post-mortem, of course. www.daybar.org

First, paternity established prior to death may protect an illegitimate child’s interest in inheriting through a father if the father took affirmative steps such as: (1) marrying the child's mother; (2) providing for the child in a will; (3) adopting the child; (4) acknowledging the child pursuant to R.C. 2105.18; or (5) designating the child as his heir at law pursuant to R.C. 2105.15.23 Historically, these methods were the only way for an illegitimate child to inherit through the father, if the father died intestate. If those affirmative steps were taken prior to the father’s death, “no differentiation is to be made in the rights of children based upon whether they were born in or out of wedlock.”24 The rationale behind permitting illegitimate children to only inherit through mothers in intestacy when the fathers do not take those “affirmative steps,” is that the birth pretty-much shows the blood and heir connection. Fathers, on the other hand, were much more debatable, until the advent of DNA. Even with DNA and evolving case law, post-mortem establishment of paternity for inheriting through a father’s intestate estate, is not a “sure thing.”

Besides establishing paternity prior to death, another prophylactic method is for parents to execute last wills expressing their devises and bequests to all children, legitimate or otherwise. If a father fails to be proactive in defining his paternal relationship with a child born out of wedlock prior to his death, the law is moving in the direction that permits post-mortem establishment of paternity for intestate succession purposes.25 There is a split in authority regarding post-mortem parentage actions.26 The apparent obsolescence of Section 2105.17 has been derogated a bit with the adoption of the Ohio Parentage Act in that parentage acts may be brought by bringing a parentage act in juvenile court under Ohio Revised Code 311.04, to determine the father-child relationship, thus meeting the definition of “child” under Revised Code continued on page 19 November 2015 Dayton Bar Briefs

17

cle spotlight

Professional Conduct:

The Top 10 Ethics Mistakes

Friday, December 4 | 9:00-12:15pm 3.0 CLE hrs of Prof. Conduct | CLE#053 Ruffolo Tuss Platfoot-Lacey M $105 | NM $150 | PP $0 Speakers: John M. Ruffolo Esq., Mark A. Tuss Esq. and Denise L. Platfoot-Lacey Esq. During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences.

The Rules and Example cases will be provided to all attendees.

A

re you concerned about the writing requirements in the Ohio Rules of Professional Conduct? How about the Rules regarding fees or the deposit of funds from retainers or flat fees? What is an excessive fee? Can you advertise on a website or through text messaging? Have you had a complaint/grievance filed against you? How do you respond to a grievance or complaint? What are your duties or responsibilities in complying with a grievance investigation? Do you need to have legal representation? Do you act in a professional manner in dealing with clients, attorneys or the court? Will unprofessional acts by attorneys result in ethical misconduct?

These are a few of the topics that will be discussed at this annual DBA CLE presentation, that will meet the new education requirements for Professional Conduct Credit hours.

Rule X of the Supreme Court Rules for the Government of the Bar of Ohio require attorneys to complete a minimum of two and one-half credit hours of instruction on one or any combination of the following professional conduct topics: (1) Legal ethics, which shall include instruction on the Ohio Rules of Professional Conduct; (2) Professionalism, which shall include instruction on the role of attorneys in promoting ethics and professionalism among attorneys by facilitating compliance with the requirements of the Ohio Rules of Professional Conduct, “A Lawyer’s Creed,” “A Lawyer’s Aspirational Ideals,” and the “Statement Regarding the Provision of Pro Bono Legal Services by Ohio Lawyers” adopted by the Supreme Court; (3) Alcoholism, substance abuse, or mental health issues, which shall include instruction on any of their causes, prevention, detection, and treatment alternatives, as applicable; (4) Access to justice and fairness in the courts and how these issues impact public trust and confidence in the judicial system and the perception of justice in Ohio, which shall include instruction on one or any combination of the following topics:

(a) Interacting with self-represented litigants;

(b) Encouraging pro bono representation;

(c) Accommodating language interpretation;

(d) Assuring fairness in matters of race, ethnicity,

foreign origin, religion, gender, sexual orientation, disability,

socio-economic status, or other relevant topics.

18

register online: www.daybar.org

On Friday, December 4, John Ruffolo, Bar Counsel for the DBA will present a seminar titled “Top 10 Ethics Mistakes” for legal practitioners, including a discussion of common ethical issues and an update of case law concerning these ethical mistakes. However, there will also be an additional discussion of the procedures undertaken by the DBA Certified Grievance Committees in investigating and prosecuting grievances against attorneys. Attorney Mark Tuss, who has extensive experience in prosecuting grievances with the Board of Professional Conduct and the Ohio Supreme Court, will present this discussion with Mr. Ruffolo. Finally, the DBA is pleased that Attorney Denise PlatfootLacey, an Associate Professor of Externships at the University of Dayton, will be presenting a discussion on professionalism, including how unprofessional conduct can lead to disciplinary violations.

Register now with the DBA to reserve your place at this seminar. Be ready to discuss your concerns and engage in an active debate of these issues.

estate planning trust & probate: Court Proceedings continued from page 17

2105.06.27 The immediate caution is that probate court does not have jurisdiction to hear a parentage action under Chapter 3111.

28 Also, Revised Code 3111.05 states that parentage actions must be brought within five years of a child attaining majority. Even if a parentage action is timely filed in juvenile court and paternity adjudicated, there may be additional steps to finalize the illegitimate child’s right to inherit through the father’s intestate estate. After post-mortem paternity is established, Ohio Revised Code Section 2123.01 et seq. allows an interested person to have a probate court determine his or her rights whenever property passes by the laws of intestate succession.

Heirship actions are used to simply determine who may establish such relationship to the decedent as to bring her or him within one of the categories of the law of descent and distribution.29 Assuming paternity has been established and there is an order to that effect from a juvenile court, the probate court should extend the father-child relationship to permit the illegitimate child to inherit through the father’s intestate estate, avoiding the cruelty of Section 2105.17.

Perhaps if Dr. Victor Frankenstein’s Monster had received the status of an heir under his Father’s estate, he would not have been so negative.

nal price. Occasionally, our presenters and members engage in these occult topics, along with matters related to the more standard dealings of estate planning, trust & probate law. We look forward to seeing you there, and don’t forget to bring your jar of peanut butter, a small treat for those in need.

Endnotes: 1 R.C. 3105.12(B)(2); see Polly v. Coffey, 12th Dist.

Clermont No. CA2002-06-047, 2003-Ohio-509, ¶ 33; see also Searcy v. Daniels, Montgomery P.C. No. 2013 EST 316, pp. 5-6 ( June 23, 2014) (discussing jurisdiction of probate courts and whether common law marriages existed as an incident to exercise of jurisdiction over the administration estates).

2 See Form 8.3, Summary of General Rights of Surviving Spouse. An example may be found at: http://www. mcohio.org/government/probate/docs/8_3_Summary_ of_General_Rights_of_Surviving_Spouse.pdf.

3 Nestor v. Nestor, 15 Ohio St.3d 143, 145, 472 N.E.2d 1091 (1984).

4 Nestor, at 146.

5 Id. 6 Id. 7 See Sulfridge v. Kindle, 4th Dist. Adams No. 04CA795, 2005-Ohio-3929; Douple v. Lenz, 2nd Dist.

Montgomery No. 24228, 2011-Ohio-1281, ¶ 79.

8 Goodrich v. Anderson, 136 Ohio St. 509, 26 N.E.2d 10116 (1940), paragraph one of the syllabus.

9 RC. 2109.50.

10 See In re Estate of Rotilio, 7th Dist. No. 11 BE 9, 2013Ohio-2878, ¶¶ 11, 14 (holding that conveyances of land cannot be addressed in concealment actions.).

11 R.C. 2109.50.

12 Id.

13 Perhaps that may be explained by Civ.R. 73 in that the Rules of Civil Procedure “shall apply to proceedings in the probate division” to the extent that they would be clearly inapplicable. It is a safe fallback when the statute isn’t expressly clear how concealment proceedings are to progress.

14 In re Estate of Popp, 94 Ohio App.3d 640, 647 641 N.E.2d 739 (8th Dist. 1994).

15 R.C. 2109.52.

16 Kish v. Kish, 7th Dist. Mahoning No. 05 MA 186, 2006Ohio-4686, ¶ 20.

17 In re Estate of Woods, 110 Ohio App. 277, 282, 167 N.E.2d 122 (10th Dist. 1959).

18 Id. 19 Wozniak v. Wozniak, 90 Ohio App.3d 400, 411-12, 69 N.E.3d 693, 699 N.E.2d 1164 (11th Dist. 1996).

20 R.C. 2109.51.

21 In re Thomas, 7th Dist. Monroe Nos. 06 MO 7 and 06 MO 8, 2005-Ohio-2409, ¶ 75; see also See Adams v.

Mann, 9th Dist. Summit Nos. 12229 and 12230, 1985 Ohio App. LEXIS 9617 (Dec. 11, 1985) (holding the surety liable for a guardian who misappropriated all of the funds of the ward and estate during his brief tenure as guardian).

22 See In re Estate of Hicks, 90 Ohio App.3d 483, 487, 629 N.E.2d 1086 (6th Dist. 1993).

23 Byrd v. Trennor, 157 Ohio App.3d 358, 2004-Ohio-2736, 811 N.E.2d 549, ¶ 28 (2nd Dist.)

24 Id., at ¶ 30.

25 Id., at ¶¶ 30, 34, 36.

26 See LeGore v. Chapman Montgomery P.C. No. 2013 MSC 00375, p. 7 ( July 22, 2014) (discussing jurisdiction of probate courts and whether common law marriages existed as an incident to exercise of jurisdiction over the administration estates).

27 Id., at ¶ 30.

28 Id. 29 O’Shaughnessy v. Stefft, 67 Ohio L.aw Abs. 389, 117 N.E.2d 734 (P.C. 1953).

Future Meetings

The Estate Planning, Trust & Probate Law Committee usually meets the first Wednesday of every month at 4:00 PM, at the Dayton Bar Association seminar room.

Like prior years, the meetings highlight topics of interest to practicing attorneys, and offer one hour of CLE credit pre-approved by the Ohio Supreme Court at a very nomi-

www.daybar.org

November 2015 Dayton Bar Briefs

19

dba events

Authenticity: Don’t Mentor or Network Without It M

Keynote Speakers: Attorneys Lynn Reynolds (top) and Susan Bridgman (bottom) at the October 1 event

entoring and networking. Both activities are important for developing as a member of the legal profession, but both can be completely ineffective (or worse, downright unpleasant) without authenticity. On October 1, 2015, authenticity emerged as the theme of the Women in Law Forum's Fall program, which featured an open discussion of mentoring and networking led by Susan Bridgman and Lynn Reynolds.

The Authentic Mentor

As Vice President and Head of Legal USA at LexisNexis, Lynn Reynolds has been on both sides of mentor-mentee relationships.

Spearheading the discussion on the topic, she described her occasional surprise when she hears herself described as a colleague's mentor ("I had no idea I was even mentoring!"). But, when you think of the natural progression of any mentorship, it is not surprising that Reynolds has been a part many successful mentor-mentee relationships. Often, all it takes is one good conversation to lead to another, establishing a level of comfort that over time can become a meaningful mentorship.

Perhaps that is why so many of the best mentorships are the byproduct of an open-door policy, at least based on the stories shared by participants in the Forum discussion. While acknowledging that successful mentorships can emerge from formal programs (e.g., the Supreme Court of Ohio's Lawyer-to-Lawyer Mentoring Program), Reynolds and many discussion participants agreed that often the best mentor-mentee relationships occur organically. Similarly, mentorships flourish only when the mentor is willing to be "vulnerable," sharing not just stories about past successes but also challenges, disappointments, and failures.

One of the added benefits of the organic mentorship is actually "liking" your mentor or mentee, quipped one participant who observed that formal mentoring programs occasionally match mentors and mentees who are ill-suited to each other. The comment drew laughs and knowing nods. Whether a mentor or mentee, how does one freely discuss sensitive topics with a person who may or may not

20 Dayton Bar Briefs November 2015

By Jade K. Smarda Esq. DBA Editorial Board Faruki Ireland & Cox P.L.L.

share the same values? Or worse, with someone not even entirely committed to showing up?

Ultimately, as participants listed the components of a successful mentorship, virtually every characteristic came back to one theme: authenticity. Even when the discussion explored whether gender significantly impacts mentor-mentee relationships, multiple participants were quick to verbalize that the effectiveness of the mentor has nothing to do with gender. Men have proved to be some of the most trusted mentors to women, and vice versa. As long as the relationship is authentic, relatively little else matters.

The Authentic Networker

As President of Emerald Advisors, LLC who devotes her practice to international regulatory compliance matters, Susan Bridgman is a lawyer and a businesswoman who knows a thing or two about networking. Fortunately, "networking does not have to be all about bad wine and awkward conversation," she joked, as she led the Forum discussion on the topic. Asking Forum participants what they dislike most about networking, many cited that the networking experience often feels "forced" or "not genuine." Likewise, it is easy to gravitate to people in the room that require no introduction, which can be counter-productive.

Bridgman agreed that fear of coming off as disingenuous or inauthentic can make networking uncomfortable, and offered solutions to make future experiences more positive: First, remind yourself of why you are even going to a certain event.

Perhaps you want to meet leaders in a certain industry underrepresented in your existing pool of contacts; or, perhaps you or your business are new to a region and you simply want to start getting your name out there; or, perhaps you are looking for a new job (possibly the most important yet hardest time to be networking). No matter the reason, set a reasonable goal for yourself – such as one or two good conversations with people you have never met – because "it's not a mad dash to collect as many business cards as you can!"

Second, resist the temptation to talk to only people you know. If approaching someone is a challenge, then sometimes an effective way to make an introduction is to ask for help. Consider getting there early, and when you check in, tell the person managing the registration desk that you are new to the event or organization. Why not ask if he or she could introduce you to one of the other attendees? Or continued on page 26

937.222.7902

2015 Access to Justice Awards Gala Nov 12

Attorneys and community supporters are invited to socialize and recognize individuals who give exceptional assistance to people in need at the 2015 Access to Justice Awards Gala. The Gala, an upscale reception and awards program, is scheduled for Thursday, November 12 from 5:30-8:00pm at Sinclair Community College Ponitz Center. Entertainment by the Central State Jazz Ensemble, delicacies and a cash bar will be provided, as well as complimentary parking. Business attire is appropriate.

Underwritten by law firm WilmerHale, LLP, proceeds from the Gala will be used to provide free legal assistance to low-income and disadvantaged individuals facing civil cases. Sponsorships from law firms, local businesses, and ticket sales will also help to meet the annual Campaign for Equal Justice’s $200,000 goal for 2015. “It is terrific to have so many individuals and organizations in our region that are committed to the cause of opening the avenues to justice to everyone, including the most vulnerable in our communities,” said Beth Whelley, Senior Vice President of Fahlgren Mortine. Whelley is co-chair of the Gala along with her husband Thomas P. Whelley II of Dinsmore & Shohl LLP. Recognized at the Gala are individuals and organizations that have provided extraordinary assistance to people in need by helping them to gain access to justice. The honorees, chosen by an independent selection committee of community leaders, include: - David E. Larson of Altick and Corwin Co., LPA, recipient of the Lloyd O’Hara Public Interest Law Award for his work in the areas of immigration legal assistance and community advocacy.

- Derrick L. Foward, president of the Dayton Unit NAACP, recipient of the Community Advocacy Award for his diligence as a civil rights activist, and - St. Vincent de Paul will receive the Community Impact Award for 30 years of service helping homeless individuals and families find shelter and gain stability.

D. Jeffrey Ireland, managing partner of Faruki Ireland & Cox P.L.L., was selected by ABLE, LAWO and the GDVLP to receive the Distinguished Service Award. Ireland will be recognized for his long-time commitment and advocacy of civil legal aid and for his extensive community involvement. His efforts raised the bar on contributions to the Campaign for Equal Justice and the Access to Justice Awards Gala. Ireland also led the Salvation Army’s $7.2 million Kroc Center Development campaign, served as Mayor of Oakwood for 10 years, and has served on numerous community boards and committees.

“In order for our judicial system to be embraced by all as just, it must be open to all,” says Thomas Whelley. “ABLE, LAWO, and the GDVLP work every day with the poor and the disadvantaged of our community to ensure that the courthouse doors are open to everyone.”

Individual Patron tickets for the Access to Justice Awards Gala are $100, Grand Patron $150. Reservations can be made with a credit card at campaign4equaljustice or by contacting Karla Garrett Harshaw at 937-535-4432 or kharshaw@ablelaw.org. Tables and sponsorships are available.

Justice on tap event October 5

Justice on Tap!, held October 5 at Warped Wing Brewing Company, helped to provide funding for Advocates for Basic Legal Equality (ABLE) the Greater Dayton Volunteer Lawyers Project (GDVLP) and Legal Aid of Western Ohio (LAWO), the sole providers of civil legal aid in the Miami Valley.

Now in its second year, Justice on Tap! guests ranged from partners in law firms to young attorneys and law school students. Sponsors included Cleary Creative Photography, Ferneding Insurance, FolioDesignhaus, Lucky’s Taproom and Eatery, Matthew Scarr, CPA, Mike Mobley Reporting and Oregon Printing. Warped Wing and Taft’s Ale House, in Cincinnati, contributed to a raffle for a gift basket for brewing enthusiasts. See photos from October 5 event below.

Make a Difference!

You can make a difference in the lives of low-income and disadvantaged residents of this community by giving to the Campaign for Equal Justice.

Contributions will benefit the Greater Dayton Volunteer Lawyers Project, Advocates for Basic Legal Equality, Inc. and Legal Aid of Western Ohio, Inc., organizations that provide free legal services to individuals who cannot afford to hire an attorney when facing civil cases.

Donations may be made online with a credit card at donate.ablelaw.org or by mailing a check to the Campaign for Equal Justice, c/o ABLE, 130 W. Second St., Ste. 700, Dayton, OH 45402. For information, contact Karla Garrett Harshaw at kharshaw@ablelaw.org or 937-535-4432.

www.daybar.org

November 2015 Dayton Bar Briefs

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22 Dayton Bar Briefs November 2015

937.222.7902

welcome new members ATTORNEY BELOT-Norton, Suzanne Pickrel Schaeffer & Ebeling Admitted to Ohio Bar: 5/84 BOWMAN, Jessie D. Dysinger Associates Admitted to Ohio Bar: 11/13 CARPER, Tina L. WilmerHale Admitted to Ohio Bar: 5/91

NOVEMBER 2015 COMMITTEE MEETINGS

Small Firm/Solo Office

Mon. November 2nd @ Noon

Juvenile Law NO MEETING Joined CLE with Criminal Law Diversity Issues Young Lawyers Division

Tues. November 3rd @ Noon Wed. November 4th @ Noon

Estate Planning Trust & Probate Law

Wed. November 4th @ 4:00pm

Public and Member Services @ The Old Courthouse Fri. November 6th @11:00am Federal Practice

Mon. November 9th @ Noon

Civil Trial Practice & ADR

Tues. November 10th @ Noon

DONAHOE, Kevin C. WilmerHale Admitted to Ohio Bar: 5/15

Labor & Employment

Tues. November 10th @ Noon

Appellate Court Practice

Wed. November 11th @ Noon

HALL, Monique A. WilmerHale Admitted to Ohio Bar: 11/02

Environmental Law

Wed. November 11th @ Noon

DEARIE, James A. Dearie Fischer & Dame, LLC Admitted to Ohio Bar: 5/00, GA 5/93

HERRE, Allison E. ABLE Admitted to Ohio Bar: 5/14, NE 9/12

Domestic Relations Law @ DR Ct Judge Woods CrtRm. Thurs. November 12th @ Noon CANCELED - Real Property

Paralegal

Thurs. November 12th @ Noon Tues. November 17th @ Noon

LANE, Casey K. WilmerHale Admitted to Ohio Bar: 5/06

Criminal Law and It’s Enforcement + Juvenile Law Wed. November 18th @ Noon

McCARTHY, Catherine J. Admitted to Ohio Bar: 8/15

Corporate Counsel

ORLANDO, JR., Joseph A. WilmerHale Admitted to Ohio Bar: 11/08 PITSCH, Rhonda L. Admitted to Ohio Bar: 5/15

Workers Comp and Social Security

Thurs. November 19th @ Noon

@ Bravo Italian Restaurant Fri. November 19th @ 4:30pm

You’ve joined the DBA...

Grow personally and professionally Join a Committee! through committee participation!

LAW SCHOOL GRADUATES BRINKER, Sam G. Dinsmore & Shohl COX, Chance O. Medpace HUNNICUTT, Marcie R. Dinsmore & Shohl LAW STUDENTS HECK, Andrew T. Norman, Alyssa R. TRENATHAN, Sarah J. WATSON, Matthew T. PARALEGAL HANNAN, L. Glenn Sebaly Shillito & Dyer

Log on to view “Interest Groups”

www.daybar.org November 2015 Dayton Bar Briefs

23

law-related organizations Dayton Bar Association Foundation

The DBA Foundation Board of Trustees

Salutes

The 1,700 members of the Dayton Bar Association for their support of the Foundation Which provides grant funding to worthy law-related organizations and projects in our community.

As the philanthropic arm of the local legal community, the Foundation is dedicated to supporting those organizations who directly assist the disadvantaged gain access to our justice system.

In so doing, the community is served and the public perception of the legal profession is improved.

To obtain more information about the Dayton Bar Association Foundation

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

Greater Dayton Volunteer Lawyers Project Countless Men, Women and Children are Denied Justice Every Day Simply Because They are Poor Please tell us what you are willing to accept as pro bono work. Personal Representation of an Indigent Client: Divorce/Family Law Bankruptcy Consumer Issues Contract/Warranty disputes SS, SSI, SSD Tort Defenses Predatory Lending Stalking Protection Orders Civil Protection Orders Wage Claims Employment Disputes Guardianships Probate Homeownership Disputes Landlord/Tenant Disputes Health Care (Insurance Claims, Nursing Home Issues Other Or, you can choose from the options below: Acceptance of 1-2 Clinics (Batched Cases) per year - GDVLP provides paralegal, secretarial and runner services for these cases.

Please specify Divorce, Chapter 7 Bankruptcy, or Expungement Assistance to 1-2 Non Profit Corporations in the Western Ohio Region Acceptance of 3-5 Guardianships with guardians provided through The Guardianship Program (person only) In addition: I will be available to provide pro bono civil legal assistance to victims if there is a community emergency (tornado, natural disaster)

Please return this form to VLP:

By Mail: 610 Performance Place, 109 N. Main St., Dayton OH 45402

By Fax: to (937) 461-4731

By Phone: (937) 461-3857

By E-mail: kelly@gdvlp.org Name:________________________________________________ Firm:_________________________________________________ Address:_ _____________________________________________ Preferred County for Pro Bono Service:_ ____________________ Phone:_______________________ Fax:____________________ Email:________________________________________________ Attorney Registration #:__________________________________

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

24 Dayton Bar Briefs November 2015

937.222.7902

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

Vice-President Gerald Parker 937-223-8888 gparker@dgmslaw.com

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

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

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

JOIN US Groups: Thurgood Marshall Law SocietyDayton

FOLLOW US @TMLSDayton

LIKE US Thurgood Marshall Law SocietyDayton

University of Dayton School of Law

www.daybar.org

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members on the move

dba events: Women in Law Reception continued from page 20

KIN

McMURRY

Pickrel, Schaeffer and Ebeling is pleased to announce that Joshua M. Kin received the prestigious 2015 Rising Litigator Award, awarded to two lawyers in the state of Ohio annually by the members of the litigation section of the Ohio State Bar Association. Joshua Kin is a trial and appellate attorney who works in the firm’s Litigation Department. Joshua continues to build a very diverse practice, where he focuses on wide-ranging commercial and business litigation. He has tried numerous bench trials and jury trials involving a variety of legal issues including: commercial bankruptcy, creditors’ rights, criminal and civil appeals, trade secrets, and general business litigation.

The law firm of Dungan & LeFevre Co., LPA is pleased to announce that effective October 1 Glen R. McMurry has been elected for a three year term as one of twelve National Directors of the Federal Bar Association. The Federal Bar Association is a 17,000+ member organization with chapters across the United States and endeavors to strengthen the federal legal system and administration of justice by serving the interests and the needs of the federal practitioner, both public and private, the federal judiciary and the public they serve. Mr. McMurry is a Partner of the law firm and practices primarily in the firm’s Business Litigation Department.

Join us at the November 6th Chancery Club Luncheon as Francos Italian Restaurant will provide the catering and Judge Dennis Adkins will speak about Veterans Court.

Recognition will be made to all Veterans, if you could please indicate that during your pre-registration.

The Chancery Club Luncheon Reservation Return completed form to Chris at 222.1308(f) or calbrektson@daybar.org

I understand that the Chancery Club luncheons are free and open to all DBA members on a first come, first serve basis. The Rotunda Room accommodates approximately 100 people for lunch. Complete this form or call to RSVP for the November 6th luncheon.

Name Firm Address: City, State, Zip+4 Phone Number & Email Address

26 Dayton Bar Briefs November 2015

perhaps tell him or her that you would really like help meeting someone in the "fill in the blank" industry?

Third, try to minimize the time you spend talking about yourself. You may still have your "elevator speech" (a term that drew mixed emotions by many Forum participants, including Bridgman), but asking other people what they do makes it easier to move the conversation forward without seeming self-interested or self-important. Plus, it takes some of the pressure off of you.

Fourth, networking is not about "landing a sale." If you walk into networking situations expecting to see a tangible result immediately, then you will most likely be disappointed. It is about building relationships with the people you meet, over time.

The individuals with whom you network may or may not ever become a client or send you business, but becoming part of their network inevitably places you in the path of others already there. Networking is about relationship-building, "baby steps," and patience.

Fifth, follow up! If you hit it off with other people at an event, then it is important to keep that momentum going. Connecting with them on LinkedIn may be a good start, but if the conversations you had were indeed authentic then you should have a good sense of where their interests lie. Perhaps you send them an interesting article, or share with them an announcement about a new program or lecture in their field. It is important that the follow-up is just as authentic as the initial conversation, so be thoughtful about how you reach out.

In response to Reynolds' and Bridgman's tips for making networking and mentoring a more positive experience, participants shared anecdotes and observations that made the Forum discussion a mentoring experience in and of itself. In the end, though, virtually every conversation topic for the Women in Law Forum's Fall program came back to the same theme: authenticity. The Forum is ever eager to hear more points of view, and both male and female members of the Bar are encouraged to attend future events. Be sure to check Bar Briefs and your email for announcements regarding future programs.

937.222.7902

mark your calendar

classifieds

Don’t miss these upcoming events!

ASSOCIATE POSITION Coolidge Wall Co., LPA, a full service Dayton firm since 1853, seeks applicants with 1-3 years of legal experience for an associate position in our labor and employment department. The ideal candidate will demonstrate high academic achievement, excellent writing and speaking skills, a strong work ethic and experience in human resources.

The candidate should demonstrate substantive knowledge of and an interest in employment law. Please send resume (with GPA and class rank), law school transcript, references and writing sample to: Michelle D. Bach, Esq., Professional Development Chair, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to bach@ coollaw.com with “Associate Application” in the subject line.

CORPORATE ATTORNEY Coolidge Wall Co., LPA, a full service Dayton firm since 1853, seeks applicants with 2-6 years of legal experience for an associate position in our corporate law department. The ideal candidate will demonstrate high academic achievement, excellent writing and speaking skills, and a strong work ethic. The candidate should demonstrate appropriate substantive knowledge of and interest in general corporate law, transactions, and corporate real estate. Please send resume (with GPA and class rank), law school transcript, references and writing sample to: Daniel J. Gentry, Esq., Professional Development Committee, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to gentry@ coollaw.com, with “Corporate Attorney” in the subject line.

www.daybar.org

LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at http:// www.daytonmunicipalcourt.org/ for notice of and an opportunity to view and comment on proposed local court rules.

MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295; (937) 572-3185 judgewolff@woh.rr.com MEDIATION Helping Attorneys & their clients settle disputes since 1995 JOHN M. MEAGHER, Judge (Retired) 2305 Far Hills Ave., Suite 203 Dayton, OH 45419 (937) 604-4840 jmeagher2@gmail.com MEDIATIONS Thomas E. “Ted” Jenks, Esq. (937) 294-0213 (937) 760-8819 Office Available Downtown Dayton office with great view available. Reasonable overhead.

If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 2241427.

REAL ESTATE PARALEGAL Coolidge Wall Co., L.P.A., a full service Dayton firm since 1853, seeks a highly motivated and qualified paralegal to work within our corporate and real estate departments. The ideal candidate will have excellent academic credentials, 2 + ye a r s o f e x p e r i e n c e, a n d b e knowledgeable regarding all aspects of corporate and real estate practice, including transactions. Please send resume, school transcript, references and any letters of recommendation to: Michelle D. Bach, Esq., Professional Development Chair, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to bach@ coollaw.com.

Upcoming Chancery Club Luncheon Dates: November 6, 2015 February 5, 2016 March 4, 2016 April 8, 2016 May 13, 2016 Doors will open at 11:30am SEATING IS LIMITED YOU MUST RSVP: calbrektson@daybar.org Breakfast with the Bench Fri. November 6, 2015 Sinclair College 7:30-8:30am Annual Bench Bar Conference Fri. November 13, 2015 Sinclair College Doors open 8:30am Bench Bar Media Forum Wed. November 18, 2015 Salvation Army Kroc Center 11:30-1:00pm Juvenile Defense Certification Fri. November 20, 2015 DBA Offices This is an all-day seminar Criminal Law Certification Thurs. December 3, 2015 DBA Offices This is an all-day seminar DBA Holiday Luncheon Thurs. December 17, 2015 Sinclair College Doors open at 11:30am Celebration of Life Memorial Luncheon Wed. May 25, 2016 Sinclair College Doors open at 11:30am Annual Meeting Fri. June 10, 2016 Sinclair College Doors open at 6:00pm Dayton Dragons Game Wed. July 27, 2016 Fifth Third Field Doors open at 6:00pm *Tickets distributed July 20 at 8:00am

advertiser index ComDoc Inc.....................................................19 Dayton Commercial Reality.........................19 Ferneding Insurance.......................................5 Johnson Investment Council......................22 J. Steve Justice..................................................6 National Processing Solutions.....................15 OBLIC................................................back cover Pohlman Talmage CPAs............ ...................17 R.L. Emmons & Associates..............................5 Rogers–McNay Insurance Agency................7 November 2015 Dayton Bar Briefs

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Dayton Bar Association 600 Performance Place 109 N. Main St. Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED

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