The Magazine of the Dayton Bar Association | NOVEMBER 2017 | Vol. 67, No. 3
Bar Briefs dba
holiday luncheon December 14, 2017
Barrister of the Month Richard L. Carr Esq. pg 6
Unexpected Ally in War on Drugs pg 18
From The Foundation Thank YOU! pg 24
November 2017 | Vol. 67, No. 3
Dayton Bar Association Board of Trustees 2017 – 2018
Brian L. Wildermuth President
David P. Pierce First Vice President
Hon. Mary L. Wiseman Second Vice President
Smart Criminal Justice Policy
BARRISTER OF THE MONTH: RICHARD L. CARR ESQ.
By Nathaniel S. Peterson Esq.
Cara W. Powers
Jonathon L. Beck
Cassandra L. Andres Rice Member–at–Large
Angelina N. Jackson Member–at–Large
Hon. Timothy N. O’Connell Member–at–Large
Fredric L. Young Member–at–Large
Susan D. Solle
Immediate Past President
John M. Ruffolo, ex officio Bar Counsel
Sally Dunker, ex officio Executive Director
DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publication for all members. Comments about this publication and editorial material can be directed to the Bar Association office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Sally Dunker, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308 The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.
Features 4 TRUSTEE'S MESSAGE: Offering Pretrial Diversion to Misdemeanor Offenders is
Dayton Bar Briefs November 2017
By Angelina N. Jackson Esq.
Sally Dunker, DBA Executive Director
By Nadia A. Klarr Esq.
DIVERSITY ISSUES Is a Famous Dissent the Key to Fighting Hate Speech?
By Kevin J. Conner Esq.
The Unexpected Ally in the War on Drugs: Estate Planning
By David Brannon Esq., & Jeremy Blair
FROM THE JUDGES DESK
By Hon. Richard S. Skelton
Departments 12 CONTINUING LEGAL EDUCATION: CYBER MONDAY ONLINE CLE DEALS! 27 CLASSIFIEDS & MARKETPLACE upcoming events 9 DISCHARGE UPGRADE TRAINING TO SUPPORT VETERANS
Tues. November 14th | 9:00-11:00am & 1:30-3:30pm | Montgomery Cty Business Solutions Ctr
2017 HOLIDAY LUNCHEON
Thurs. December 14th | Doors open at 11:30am | Sinclair Community College, Bldg 12
THE CHANCERY CLUB LUNCHEON
Fri. November 17th | Doors open at 11:30am | The Old Courthouse Speaker: Zachary Heck Esq., Faruki Ireland Cox Rhinehart & Dusing P.L.L. Topic: Cybersecurity Essentials for Lawyers & Law Firms
2018 ROBERT N. FARQUHAR MOCK TRIAL COMPETITION
Fri. January 26th | Training/Lunch: 11:00am; Trials: 12:00-4:00pm | Montgomery County Courts
2017-18 IMPORTANT SAVE THE DATES
Register Early for DBA Events You Don't Want to Miss!
DBA ANNUAL PARTNERS Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.
PLATINUM PARTNERS Jack W. and Sally D. Eichelberger Foundation
Eichelberger, longtime Oakwood residents to enhance the legal profession, the arts and the Greater Dayton community through the awarding of grants. Jack Eichelberger was a well-known Dayton attorney and real estate investor. Trustees: Dave Greer, Gary Froelich and Neal Zimmers.
Eichelberger Foundation Estabrook Charitable Trust
Sponsor of: • Chancery Club Luncheons • New Admittee/Member Reception • First Monday in October Celebration • DBA and UD Law Student Events
• Women in Law Forum
Estabrook Charitable Trust Administered by Porter Wright Morris & Arthur LLP | Bruce Snyder - Trustee Annual Grants to the DBA (This support makes these events affordable for all members): • Bench Bar Conference • Diversity Day • Annual Meeting
Faruki Ireland Cox Rhinehart & Dusing P.L.L. www.ficlaw.com With offices in Cincinnati & Dayton Faruki Ireland Cox Rhinehart & Dusing P.L.L. is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.
GOLD PARTNER Thompson Hine LLP www.thompsonhine.com Established in 1911, Thompson Hine is a business law firm dedicated to providing superior client service. The firm has been recognized for ten consecutive years as a top law firm in the country for client service excellence in The BTI Client Service A-Team: Survey of Law Firm Client Service Performance. With offices in Atlanta, Cincinnati, Cleveland, Columbus, Dayton, New York and Washington, D.C., Thompson Hine serves a premier business worldwide.
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Offering Pr to Misdeme is Smart Cri Policy
lthough criminal justice policy is changing, I believe that most people still see how we treat crime as fairly cut and dried – a person is arrested, they are prosecuted, and if found guilty, sentenced accordingly through the court. We operate under the belief that this is the best way to handle criminal behavior, that it holds people accountable, that it makes victims whole, and that it makes our community safer. But what if that simply isn’t true? The bottom line is that criminal convictions result in very real consequences that go far beyond what happens in the courtroom. We call these things “collateral consequences.” 1 Most of us know that criminal convictions can bar people from obtaining employment or from pursuing various professional licenses. Some of us know that criminal convictions can also result in denial of access to public housing, education grants, and other forms of public assistance. In addition to these very real consequences, the lifelong stigma of a criminal conviction essentially creates a permanent underclass of people who are disproportionately black and brown. These consequences create social, familial, and economic instability, which often leads to repeat involvement in the criminal justice system. It is profoundly sad to watch. Last month I watched a woman attempt to seal a misdemeanor conviction for aggravated menacing.2 In tears, she told the court how she has been turned down repeatedly for jobs and how she has been unable to obtain housing assistance despite leading a law-abiding life for several years. Her despair was palpable. It is her only criminal conviction and Ohio law says that it must remain on her record for life. I often ask myself if this is what we want. Yes, people need to be held accountable for their poor choices, particularly when such choices result in criminal behavior that effects other people. But do we want people who have committed crimes to be shut out of society forever? To have no real means of becoming productive members of the community? Is a full criminal prosecution always the best way to hold people accountable, to make victims whole, and to make the community a safer place? I believe the answer is no. There are many ways to address crime that do not involve prosecution and permanent criminal records. They include, but are not limited to,
Dayton Bar Briefs November 2017
mediation, expungement/record sealing, and diversion programs. Here, I will focus on one alternative that I believe is underutilized in our local system. That alternative is pretrial diversion. Pretrial diversion is an alternative to prosecution that seeks to avoid the stigma of a criminal conviction by diverting certain offenders from traditional criminal justice processing into rehabilitative programs. Conditions of diversion vary depending on the underlying charge, but can include various types of treatment, restitution, victim impact programs, and/or community service. The criminal charges are dismissed after the offender meets the agreed-upon conditions. In Ohio, prosecutors are given statutory authority to establish pre-trial diversion programs, with certain exclusions, “for adults who are accused of committing criminal offenses and whom the prosecuting attorney believes probably will not offend again.”3 While the statute does not prohibit a court from establishing a pretrial diversion program,4 such programs are typically established by prosecutors. In Montgomery County, a formal diversion program exists for firsttime, non-violent felony offenders.5 If an offender successfully completes the diversion program, the charges are dismissed and the offender may apply to have his or her arrest record sealed. Given the vast collateral consequences associated with felony convictions, it makes sense to offer rehabilitative opportunities to first-time, non-violent offenders.
continued on page 5
See http://www.civiccohio.org for a comprehensive online database of the collateral consequences of criminal convictions in Ohio. 2 Aggravated menacing usually involves an offender making verbal statements that “cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person's unborn, or a member of the other person's immediate family.” ORC 2903.21. 3 ORC 2935.36. 4 Lane v. Phillabaum, 182 Ohio App. 145 (12th Dist. 2008). 5 http://www.mcohio.org/government/elected_officials/prosecutor/office_ divisions/diversion_division.php 1
retrial Diversion eanor Offenders iminal Justice
By Angelina N. Jackson Esq. Member-at-Large Montgomery County Public Defender's Ofc Collateral consequences, however, attach to misdemeanor convictions as well, and there is no formal program to divert first-time, non-violent misdemeanor offenders. Too often we are prosecuting and convicting individuals of non-violent offenses like disorderly conduct, criminal trespass, public nuisance, petty theft, drug possession, and other low-level offenses. It is difficult to rationalize why first-time non-violent felony offenders are afforded an opportunity to avoid the consequences of a criminal conviction, but first-time non-violent misdemeanor offenders are not, particularly since Ohio law allows them to be diverted. In fact, other jurisdictions throughout the state operate such programs. One court has observed that pretrial diversion is “usually regarded as a beneficial arrangement for college students who will someday apply for jobs.”6 Low-income individuals who lack formal education also benefit substantially, I believe perhaps even more so, from avoiding a criminal record. Many higher paying professions that require advanced education (our own included) seem to be unforgiving of contact with the criminal justice system. On the other hand, the types of jobs available to people who do not have advanced education are often the very positions that exclude people with criminal convictions. So essentially, a criminal conviction further disadvantages people who already have limited employment options by first cutting them off from jobs and then cutting them off from the assistance needed to fill the gap. This is a recipe for recidivism. When we maximize opportunities to avoid formally processing people through the criminal justice system, we save resources that can be used to meet other community needs. Creating a class of people who are unable to meet basic life needs does not keep our community safer, but it does increase the risk that those people will reoffend. Therefore, we have an obligation to ask ourselves whether the way we address criminal behavior is the best way to accomplish rehabilitation, restoration, and community safety, or are we doing things simply because it is the way they have always been done? I encourage each of you to think about the worst thing you have ever done, whether anyone knows about it or not. Think about if that low moment defined you in the eyes of society for the rest of your life. Maybe by grace, luck, or mercy, you got a second chance. People who www.daybar.org
have committed crimes are in many instances worth a second chance. They are worthy of redemption. They have value despite their mistakes, should not be written off, and should not have to pay a lifelong price that goes far beyond what happens in the courtroom. “Do not exploit the poor because they are poor and do not crush the needy in court” Proverbs 22:22 ENDNOTES: 6
Lane, supra at 146.
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November 2017 Dayton Bar Briefs
BARRISTER OF THE MONTH
Richard L. Carr Esq.
Riding the Bear: Lessons with Attorney Richard Carr
rom across the conference table, Richard Carr conveys these words to me with no small amount of dignity and reverence. Richard explains that one of his mentors, the late Richard Snell, the well-know and well-beloved Dayton attorney, hit him with this phrase as a young attorney to express the thought that litigation cases have a life of their own. (A quick Google search reveals no other instance of this quote, lending strong credibility to its authenticity and uniqueness.) As our conversation continues, it becomes clear that it will not be the only piece of wisdom I will be imparted, so long as I know where to look. Describing himself as someone who enjoys the practice of law and being an attorney, Richard views his work as being primarily focused on contracts and contract litigation. He goes on to explain this largely involves helping people make agreements and helping resolve disputes involving existing agreements, often in the areas of business formation, business planning, business disputes, construction, real estate, wills, probate litigation, and corporations. “Love contracts!” he exclaims, perhaps in an effort to offer some explanation. “Just love them!” Richard began his legal career practicing at the firm of Rogers and Greenberg. He remembers the time there fondly, in no small part due to the tutelage and mentorship of Richard Snell. According to Richard, Mr. Snell was smart and creative in his practice of law, but pragmatic as well. One particular lesson from Mr. Snell went something like the following: “Sometimes you can’t stain the piss form the buttermilk.” Although Richard says he was a bit shocked, Snell explained that some things can be hard, if not impossible, to separate. Other quotes from Mr.
Dayton Bar Briefs November 2017
Snell are a little easier to incorporate; the aforementioned litigation bear comes to mind. From Rogers and Greenberg, Richard moved to Auman, Mahan and Furry, where he currently practices. Growing up in the area, Richard attended Centerville High School, where he competed on the school’s debate team and was second in the state. From there, he attended college at Michigan State. Likely sensing the impending objection, Richard is quick to explain that, at Michigan State, “Win or lose, it’s still a party!” After college, he studied law at Boston College Law School. Richard credits being argumentative for his decision to pursue the law. “It was the fact that I was very argumentative, and I had a strong sense of justice and the need to seek that justice out.” A family man, Richard is married to his wife, Eileen, who runs the ArtsLive series at the University of Dayton. They have three children: Richard, who lives in Austin, Texas, Simon, who lives in Portland, Maine, and Rachel, who is currently attending the University of Dayton. They also have one grandchild in Austin as well. For hobbies, Richard enjoys swimming and cycling. He used to run, but he has since given it up. He has worked with the Centerville-Washington Foundation and tries to stay as engaged with civic commitments as possible. He has also coached the mock trial team at Centerville along with Fred Dressel and Zachary Heck. Under their coaching, the team has won two state championships. According to Richard, mock trial is not really about the trial at all. “It’s about life skills.” He further explains that mock trial teaches a philosophy consisting of three parts. First, it teaches how to absorb a
body of material. Second, it teaches the rules for interacting with that material. And third, it then requires students to work together to create a presentation. Richard believes this philosophy is just as applicable to any aspect of life as it is to law, and that the ability to succeed through that philosophy is a valuable skill for any situation. When asked if he had any advice for younger attorneys, Richard advises the importance of being well organized with one’s calendar and contacts. And with contacts, responding to any contact within 24 hours. To Richard, this is the best way to maintain credibility and trust with one’s clients, and to maintain a positive relationship with opposing counsel. In terms of lessons the practice of law has to teach, Richard states that often the practice of law allows one to observe the mistakes of others. Whether one learns from those mistakes is up to the individual, but the lesson is often available should one take it to heart. Richard believes in the importance of law and its practice by attorneys. “We help put things together,” he tells me. “And we help deal with conflict.” Richard finds that lawyers provide meaningful assistance for individual clients, as well as fulfilling important functions that can help with all of society. continued on page 7
BARRISTER OF THE MONTH: RICHARD L. CARR ESQ. continued from page 6
It’s the focus on the client that Richard feels is the most important job of the attorney. It does not matter what type of work an attorney does, the key is always the client. A good attorney takes care of the client’s needs and serves the unique and individual interests of the client. It’s important for an attorney to put their own ego or their own perceptions aside, and instead put the client first and foremost. As Richard puts it, “Take care of your clients and your clients take care of you.” While the language would need to be a little more bombastic to become a “Snellism,” the wisdom of the lesson is no less clear.
By Nathaniel S. Peterson Esq. DBA Editorial Board Brannon & Associates
HERBERT M. EIKENBARY What is The Eikenbary Trust? The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/ reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance. Through the efforts of the Trustee's and the Dayton Bar Association's counsel, we have been successful with the Court to better effectuate the purpose of Mr. Eikenbary's Will by increasing the amount of loans made to young attorneys, which was originally only $500.00, to $4,000 per grant. The maximum available individual loans, are up to $6,000.00 at 4% interest. This is indeed a big difference from the original loan amount of $500, but the interest amount has remained the same so the financial burden will not be weighted heavily.
How to Apply? Application forms are available from the Herb Eikenbary Loan & Grant Program through the Eikenbary Advisory Committee of the Dayton Bar Association. If you would like to take advantage of these programs, contact:
Sally Dunker, DBA Executive Director Dayton Bar Association 109 N. Main St., Suite 600 Dayton, OH 45402-1129
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Robert W. Lipp III Rated by Super Lawyers
Plaintiff Medical Malpractice
Call Today! 937.294.3600 www.LippLaw.com email@example.com November 2017 Dayton Bar Briefs
Welcome Aboard Sally Dunker DBA Executive Director
hat for most of us seems straight out of a dream is the life Sally left behind when she returned to Ohio to be closer to family. For the last two-plus years, Sally and her husband, Philip, cruised all along the Eastern and Western coasts on their 42” trawler that they lived aboard. But when family called, Sally came back to Ohio where her life began. She is a third generation Ohioan and graduated from Miamisburg High School. After high school, she studied speech communications with an emphasis in broadcasting at Bowling Green State University. Although the Miami Valley would always hold a special place with Sally, she got her first job after college in Cincinnati and simply fell in love with the area. She worked for WCPO, followed by a period at WKRC. After a while, Sally needed a new challenge, so she transitioned into station sales and promotional work, which resulted in her introduction to marketing, advertising, public relations, and special event planning all in one. She put that assortment of experience to work for the Cincinnati Ballet Company when she became its Marketing Director. Sally took well to being a marketing director, and transitioned once again to marketing for shopping centers for almost 15 years. She worked for a wholly-owned subsidiary of Sears before being promoted to the National Marketing Manager for forty Sears shopping centers. When she had reached her full potential in that industry, she shifted into tourism. She worked as the Executive Director of the Athens County Convention and Visitors Bureau, where she really enhanced her management skills, got involved in lobbying efforts for tourism, and worked closely with a board of directors, as well as county commissioners and the mayor. Sally was also the President of the Ohio Travelers Association and served on advisory boards for the state of Ohio and the region. After almost ten productive years, she yearned for another challenge, a new stimulation. As luck would have it, Philip got a job in the San Francisco Bay area, and Sally got the challenge she wanted. She took the position of CEO of the Berkeley Association of Realtors, which had approximately 700 members at the time. It was at this time when Philip and Sally kept their home in the Hocking Hills, they purchased a 42’ trawler to live aboard while they were in the San Francisco Bay.
Dayton Bar Briefs November 2017
By Nadia A. Klarr Esq. Chair DBA Editorial Board Taft Stettinius & Hollister LLP
They lived on board every single day while both working in the area. In 2014, Sally’s association merged with the neighboring association of Oakland. This was probably the biggest challenge of her career to date. There was no book, no checklist, no user manual for merging the two associations. She learned as she went along, and ultimately merged all aspects of the operations of the two associations, which resulted in one highly successful organization with nearly 3,000 members. After accomplishing so much, Sally and Philip decided to put their careers on hold to go cruising. They made the necessary preparations and then in the fall of 2015, they left the Bay area, cruised under the Golden Gate Bridge, and turned left. They cruised all along the Western coast, to Ensenada, Mexico, where they stayed for a few months. Then, they put their boat on a larger transport boat and sent it through the Panama Canal while they drove to Ft. Lauderdale, Florida and reunited with their trawler. They spent another full year coasting up and down the Eastern coast for what turned out to be an adventure of a lifetime. Philip and Sally had planned to cruise for as long as possible. But, in the late summer of 2016, Philip’s mother had some health issues and the couple left their boat and came home to care for her for several months. During this time, they also spent precious time with their three-year-old grandson, Henry, which was a nice change of pace from their FaceTime reunions. Sally and Philip, who have been married for twenty-five years, have a son, Ben (38), and a daughter Danielle (28), in addition to their grandson, Henry, and another little boy on the way in February. Sally also has a sister, Lynn, who lives in the area. Ultimately, with so much family and love around them in the Miami Valley, they decided to stop cruising, get back on land, and stay in the area. Sally decided to get back to her career. She was looking for her next challenge when she read the job description for the executive director position at the DBA, and she told her husband, “It’s me!!” Sally’s first order of business is to develop and implement a strong strategic plan for both the association and the foundation. She understands that associations are changing and re-identifying themselves. She wants to really figure out how the DBA will best serve the needs of its members in the future. She knows that our members are changing how they do business, and so the DBA has to change, too. As anyone can see, Sally has a tremendous amount of experience. She meets all the requirements and checks every box. But what really sets Sally apart is her can-do attitude, her zest to meet every challenge with a unique perspective, and her desire to treat every single day as a learning experience. As long as we can keep her feet firmly planted on Dayton ground and away from ocean trawlers, then Sally Dunker will be a remarkable executive director. There is no doubt she will take the Dayton Bar Association to new heights. Welcome, Sally! We’re so glad you’ve joined our community!
Attorneys and Non-Attorneys interested in helping veterans
Discharge Upgrade Training to Support Veterans November 14, 2017 9:00-11:00am & 1:30-3:30pm Montgomery County Business Solutions Center 1435 Cincinnati Street, Ste. 300, Dayton, OH 45417 Trainers: Jim Carlsen, Senior Fellow, The Veterans Consortium Danica Gonzalves, Equal Justice Works Fellow, The Veterans Consortium
There are a number of veterans in the Miami Valley suffering from Post-Traumatic Stress Syndrome (PTSD) and Traumatic Brain Injuries due to military service, but many received less than honorable discharges before their conditions were diagnosed. As a result they cannot get medical treatment from the Veterans Administration (VA). If these veterans can get their discharges upgraded via administrative processes through the various armed services components (i.e., Air Force, Army and Navy), then they can qualify for medical care at the VA to treat their PTSD and TBI conditions. In order to get training on the discharge upgrade process we are bringing the above individuals to Dayton from Washington, DC and the training is open to all interested parties since you do not have to be an attorney to prepare or submit a discharge upgrade application. In addition, the LexisNexis Pro Bono Task Force (PBTF) plans to form an alliance with TVC since they will screen all cases in this area to make sure they have merit, potential for success and they will give us access to their subject matter experts to assist with upgrade processes until the PBTF members feel competent enough to handle them without support from TVC, but they will always be available to answer questions. LexisNexis employees can use their pro bono hours to attend the training and for working on discharge upgrades. There are no requirements to appear before any of the administrative boards and a lot of the work will involve completing the application, assembling records and drafting a brief in support of the application.
Visit www.daybar.org for Info on How to Register!
November 2017 Dayton Bar Briefs
Is a Famous Dissent the Key to Fighting Hate Speech? By Kevin J. Conner Esq. Co-Chair Diversity Issues
he question has been a difficult one. How in a nation that values the constitutionally protected right to free speech do we curb vile forms of speech meant only to incite hatred and fear? Do we want to do so? More to the point, can we curb certain types of speech and not others? For instance, do we want to go down the route laid out in Germany, where any overt sign of Nazism or fascism is outlawed? It is a question that the Diversity Issues Committee has chosen to explore this year. Throughout this year and culminating in Diversity Day in April, we will explore the First Amendment and its relationship to hate speech. Recently the Westboro Baptist Church, they of the “God Hates…” signs, held three of its now infamous pickets in Cincinnati, Ohio. http://www.fox19.com/story/36236910/community-respondsto-planned-westboro-baptist-church-protests-in-cincinnati. This reminded me of the landmark Supreme Court case Snyder v. Phelps, 562 U.S. 443 (2011), which was the last time a serious attempt was made to curb hate speech in the United States. Snyder was the culmination of a case brought by Albert Snyder, a gay man, and the father of slain United State Marine Matthew Snyder who was killed in the line of duty in Iraq. Young Matthew’s funeral was picketed by the Westboro Baptist Church. Westboro Baptist Church came to the forefront of the national consciousness nearly two decades ago when its members picketed the funeral of Matthew Shepard, a young gay man who was murdered in Laramie, Wyoming. http://trib.com/news/local/state-and-regional/ shepard-funeral-put-westboro-baptist-church-on-national-map/ article_f7ee0084-86e4-5cc1-b335-066a505a08ed.html. Gaining
Dayton Bar Briefs November 2017
this infamy, Westboro moved on to picketing the funerals celebrities and then ultimately soldiers. http://www.huffingtonpost. com/2011/10/12/9-worst-funeral-protests-_n_1005958.html. Westboro’s picketers insisted that dead U.S. soldiers were the result of God’s wrath for a nation too tolerant of homosexuals. 562 U.S. 443 (2011). In short and to paraphrase, the majority of the U.S. Supreme Court said, “No. You cannot curb hate speech.” With an 8-1 decision, the Court held that Westboro’s pickets were protected as an exercise of free speech under the First Amendment of the United States Constitution. Id. Justice Samuel Alito was the sole voice of dissent. Id (Alito, J. dissenting). The heart of Justice Alito’s dissent is that not all speech is protected under the First Amendment, especially when that speech is directed at a private individual. “Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The
continued on page 11
DIVERSITY ISSUES: Key to Fighting Hate Speech continued from page 10
Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.” Id. (Alito, J. dissenting). Further, Justice Alito lays out a key argument about when speech causes severe emotional distress in a private citizen. “[T]hey may not intentionally inflict severe emotional injury on private persons…that make no contribution to public debate.” Id. (Alito, J. dissenting). It’s a strong argument that resonated then, and now. In the wake of the recent tragedy in Charlottesville, Virginia, and the overall rise of the Alt-Right the dissent may be worth looking at again as a means to curb hate-speech aimed at private citizens. Often now, hate speech is coupled with a personal attack. Too often, that attack is against a private individual – and does not further the public discourse. In the case of Charlottesville, after victim Heather Heyer was killed by an avowed white nationalist, the infamous neo-Nazi website The Daily Stormer immediately cast her life as worthless. https://www.nytimes.com/2017/08/14/us/godaddy-dailystormer-white-supremacists.html. The writer chastised Ms. Heyer for being, in his words and among other things, “fat” and “childless” at the age of 32. Id. This is the sort of situation and speech that Justice Alito was alluding to in his dissent. Ms. Heyer was not a public figure, she was a private citizen, exercising her right to peacefully assemble when she was tragically killed. Ms. Heyer’s family and friends deserved the right to celebrate the life of their loved one without her memory being denigrated by a neo-Nazi website. The situation rings a lot of the same tones as Snyder.
It looks as though the argument behind Justice Alito’s dissent will get another crack. Thankfully, nobody died in this case. In April a Jewish realtor from Montana, Tanya Gersh, with the help of the Southern Poverty Legal Center sued Andrew Anglin, the founder of The Daily Stormer, for intentional infliction of emotional distress, malice, and invasion of privacy – some of the same complaints brought in Snyder against Westboro. https://www.nbcnews.com/news/us-news/womansues-founder-neo-nazi-website-after-anti-semitic-troll-n747851. Anglin published Gersh’s phone number, email, address, and her 12 year-old son’s Twitter handle on his website and then in over 30 separate articles urged his readers to unleash a “campaign of terror” against Gersh and her family. Id. Anglin’s readers responded to his call and sent over 700 separate communications to Gersh and her family including a Tweet to her young son that said, “psst kid, there’s a free Xbox One inside this oven” alongside a photo of an oven. Id. As was the case in Snyder and with Ms. Heyer, Gersh and her family are private citizens who ran afoul of an Alt-Right hate-group. As in Snyder, the group levied volley after volley of hate speech at the family until they cracked under the pressure. This is exactly the type speech that Justice Alito argued against in his dissent. And while Justice Alito made much of the fact that Westboro picketed a funeral, I do not see it to be too big a stretch to look at the damage done to a private citizen whose death is mocked prior to her funeral, or the mocking of a young boy with the threat of death. We are now 6 years removed from the decision in Snyder v. Phelps and the famous “passionate dissent” of Justice Alito. Justice Alito’s words look as important today as they did back then, and maybe more so since hate speech seems to be on the rise. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.” 562 U.S. 443 (2011) (Alito, J. dissenting).
November 2017 Dayton Bar Briefs
CLE Season has Fall-en Upon Us! Local | Convenient | Affordable 25th Annual DBA Bench Bar Conference Criminal Justice, Civil Consequences & Hot Topics 2017 Friday, November 3, 2017 | 8:30-4:00pm 5.75 Hrs | Seminar #1718-009 M $200 | NM $300 | PP $30 @Sinclair Community College, Bldg12 +Parking & Lunch! Guest Speaker: Mark Godsey, Innocence Project
Criminal Law Certification Thursday, November 30, 2017 | 8:30-3:45pm 6.0 Hrs / 6.0 NLT Hrs | Seminar #1617-048 M $215 | NM $300 | PP $0
The Rules of Evidence Series: Character & Impeachment (video replay) Wednesday, November 7, 2017 | 9:00-12:15pm 3.0 Hrs | Seminar #1718-041 M $35 | NM $45 | PP $0
Federal Practice Update Tuesday, December 5, 2017 | 9:00-12:15pm 3.0 Hrs | Seminar #1617-050 M $105 | NM $150 | PP $0
House Bill 49 – TCAP Offenders (details on pg13) Thursday, November 8, 2017 | 12:00-1:00pm 1.0 Hr | Seminar #1718-073 M $35 | NM $45 | PP $0 Presenters: Hon. Mary Huffman & Hon. Dennis J. Langer, Montgomery County Common Pleas Court @Montgomery County Common Pleas Court 2017 Annual Elder Law Update (details on pg13) Thursday, November 9, 2017 | 8:45-4:30pm 6.0 Hrs | Seminar #1617-036 M $215 | NM $300 | PP $30 @Sinclair Community College, Bldg12 +Parking & Lunch! Writing for Advocates with Judge Merz (details on pg13) Wednesday, November 15, 2017 | 9:00-12:15pm 3.0 Gen Hrs / 3.0 NLT Hrs | Seminar1718-037 M $105 | NM $150 | PP $0 Presenter: Hon. Michael R. Merz, US District Court Recent Ethics Violations & the Ethical Perils of Social Media (video replay) Tuesday, November 21, 2017 | 9:00-12:15pm 3.0 Hrs Prof Conduct | Seminar #1718-043 M $105 | NM $150 | PP $0 Most Common Ethics Mistakes Lawyers Make When Marketing Their Practice & The Ethics of Marketing Online to Millennials Tuesday, November 28, 2017 | 9:00-12:15pm 3.0 Hrs Prof Conduct | Seminar #1718-044 M $105 | NM $150 | PP $0 Presenter: Tres Homer, GNGF New Lawyers Division presents: New Lawyer Training: The Core Components Wednesday, November 29, 2017 | 1:00-4:15pm 3.0 Gen Hrs & 3.0 NLT Hrs incl. (1.0 NLT Prof., 1.0 Law Practice Mgmt, 1.0 Client Fund Mgmt) Seminar #1718-046 M $105 | NM $150 | PP $0 Domestic Relations 101 Wednesday, November 29, 2017 | 1:00-4:15pm 3.0 Gen Hrs /3.0 NLT Hrs | Seminar #1718-047 M $105 | NM $150 | PP $0 12
Dayton Bar Briefs November 2017
Labor & Employment Law Update Friday, December 1, 2017 | 9:00-12:15pm 3.0 CLE Hrs | Seminar #1617-049 M $105 | NM $150 | PP $0
Juvenile Law Update Wednesday, December 6, 2017 | 9:00-12:15pm 3.0 Hrs | Seminar #1617-051 M $105 | NM $150 | PP $0 Estate Planning Trust & Probate Roundup Wednesday, December 6, 2017 | 1:00-4:15pm 3.0 Hrs | Seminar #1617-052 M $105 | NM $150 | PP $0 Appellate Practice Update Thursday, December 7, 2017 | 9:00-12:15pm 3.0 Hrs | Seminar #1617-053 M $105 | NM $150 | PP $0
2017 Elder Law Update Seminar (video replay) Tuesday, December 19, 2017 | 9:00-4:45pm 6.0 Hrs | Seminar #1718-062 M $215 | NM $300 | PP $30 Recent Ethics Violations & the Ethical Perils of Social Media (video replay) Wednesday, December 20, 2017 | 9:00-12:15pm 3.0 Hrs Prof. Conduct | Seminar #1718-063 M $105 | NM $150 | PP $0 The Rules of Evidence Series: Character and Impeachment (video replay) Wednesday, December 20, 2017 | 1:00-4:15pm 3.0 Gen Hrs and 3.0 NLT Hrs | Seminar #1718-064 M $105 | NM $150 | PP $0 25th Annual Intellectual Property for General and Corporate Practitioners Thursday, December 21, 2017 | 9:00-12:15 3.0 Hrs incl. 1.0 Hr Prof. Conduct and 3.0 NLT Hrs Seminar #1617-065 M $105 | NM $150 | PP $0 Presenters: Matthew R. Jenkins Esq., Jacox Meckstroth & Jenkins, Ted Lienesch Esq., Thompson Hine
Civil Trial Update Monday, December 11, 2017 | 1:00-4:15 pm 3.0 Hrs | Seminar #1718-057 M $105 | NM $150 | PP $0
New Lawyer Training: The Core Components (video replay) Friday, December 22, 2017 | 9:00-12:15pm 3.0 Gen Hrs and 3.0 NLT Hrs incl. (1.0 NLT Prof., 1.0 Law Practice Mgmt, 1.0 Client Fund Mgmt) Seminar #1718-066 M $105 | NM $150 | PP $0
Crisis Communications & Management for Lawyers & Their Clients (details on pg14) Tuesday, December 12, 2017 | 9:00-12:15pm 3.0 Hrs | Seminar #1718-033 M $105 | NM $150 | PP $0 Presenter: Bruce Hennes, Hennes Communications
Domestic Relations 101 (video replay) Friday, December 22, 2017 | 12:30-3:45pm 3.0 Gen Hrs and 3.0 NLT Hrs incl. (1.0 NLT Prof., 1.0 Law Practice Mgmt, 1.0 Client Fund Mgmt) Seminar #1718-071 M $105 | NM $150 | PP $0
Environmental Law Update Wednesday, December 13, 2017 | 9:00-12:15 pm 3.0 Hrs | Seminar #1718-058 M $105 | NM $150 | PP $0
Labor and Employment Law Committee’s Annual (and Amazing) Roundup (video replay) Wednesday, December 27, 2017 | 9:00-12:15pm 3.0 Hrs incl. 1.0 Hr Prof. Conduct Seminar #1718-067 M $105 | NM $150 | PP $0
Real Property Update Wednesday, December 13, 2017 | 1:00-4:15 pm 3.0 Hrs | Seminar #1718-059 M $105 | NM $150 | PP $0 Judge Langer’s 2017 Criminal Law Update – Review of Decisions of US Supreme Court, Ohio Supreme Court, Ohio Appellate Courts and Ohio Legislation Friday, December 15, 2017 | 8:30-11:45am 3.0 Hrs | Seminar #1718-060 M $105 | NM $150 | PP $0 2017 Annual Domestic Relations Seminar (video replay) Monday, December 18, 2017 | 9:00-4:45pm 6.0 Hrs | Seminar #1718-061 M $215 | NM $300 | PP $30
House Bill 390: Revamping Ohio’s Foreclosure Process (video replay) Wednesday, December 27, 2017 | 1:00-4:15pm 3.0 Hrs | Seminar #1718-068 M $105 | NM $150 | PP $0 2017 Annual Probate Institute (video replay) Thursday, December 28, 2017 | 9:00-4:45pm 6.0 Hrs incl. 1.0 Hr Prof. Conduct Seminar #1718-069 M $215 | NM $300 | PP $30 Recent Ethics Violations & the Ethical Perils of Social Media (video replay) Friday, December 29, 2017 | 9:00-12:15pm 3.0 Hrs Prof. Conduct | Seminar #1718-070 M $105 | NM $150 | PP $0
Hot Topic CLE Features and Speaker Favorites! House Bill 49 - TCAP Offenders Featuring: Hon. Mary Huffman & Hon. Dennis Langer Montgomery County Common Pleas Ct Wednesday, November 8th | 12:00-1:00pm | CLE# 1718-073 | 1.0 Hr | M $35 | NM $45 | PP $0 What criminal law practitioners need to know about House Bill 49 – TCAP Offenders. Beginning on September 18, 2017, certain counties in Ohio, including Montgomery County, elected to participate in the Targeted Community Alternatives to Prison, or TCAP Program. Participation in the program will be mandatory in Montgomery County commencing July 1, 2018. The program is designed to divert non-violent F5 offenders, who have not previously been convicted of a felony offense of violence or a sex offense, from prison into community-based supervision programs. This CLE will assist attorneys who practice criminal law, including prosecutors and defense attorneys, in understanding the limitations placed on courts in sentencing non-violent F5 offenders who qualify under the TCAP program. The CLE presentation will also consider the alternatives to sentencing available under TCAP, including local incarceration, the limits on any prison sentence for a revocation, and changes to judicial release laws. A written Summary of House Bill 49, the TCAP legislation and a chart relating to prior offenses which render an offender ineligible for TCAP inclusion will be provided.
2017 Annual Elder Law
Organizer: Michael Millonig, Michael Millonig, LLC Wednesday, November 9th | 8:45-4:30pm | CLE# 1718-036 | 6.0 Hrs | M $215 | NM $300 | PP $30 This all day seminar with various presenters will cover the following topics, just to name a few: Defining Elder Law; Medicaid Coverage for Nursing Homes; Countable Resources and Exempt Resources; The Changing Landscape of Long Term Care Insurance; General eligibility rules for home and community based waiver Medicaid programs - PASSPORT, Assisted Living, the Home Care waiver, and the DD waivers; Only Rich People Have Trusts, Right? Some Non-tax Planning Thoughts for Trust Drafting/Funding; Planning Strategies for Asset Protection for Our Clients, Avoiding Estate Recovery & Questions and Anwer Period; and Use and Abuse of Powers of Attorney: Drafting, Counseling and Protecting your Client from Abuse.
Writing for Advocates with Judge Merz Featuring: Hon. Michael R. Merz, US District Court
Wednesday, November 15th | 9:00-12:15pm | CLE# 1718-037 | 3.0 Hrs | M $105 | NM $150 | PP $0 This 3-hour seminar presented by Judge Michael Merz, will provide a judge’s perspective on what’s good, what’s bad, and what could be better in your written advocacy. Designed for new and experienced litigators., it will cover the following general areas: Broad Perspectives, Authority, Style, Editing and Technology.
November 2017 Dayton Bar Briefs
Crisis Communications & Management for Lawyers & Their Clients Tuesday, December 12, 2017 9:00-12:15pm 3.0 General CLE Hrs Seminar #1718-033 M $105 | NM $150 | PP $0
Bruce Hennes Hennes Communications
ABOUT THE SEMINAR:
Especially in today’s world of immediate information, when reporters won’t wait long for you to return that call before posting the story online and where virtually everyone is a “journalist” armed with a camera and able to reach thousands of people with one simple Facebook message, attorneys and their clients simply cannot wait until a legal decision is rendered. They must be prepared to vigorously defend their situation in a wide variety of venues, as well as media outlets. This seminar will halp establishing & maintain “control of the message”; when a reporter calls - making points and not just answering questions; reporter’s agenda vs. the attorney’s agenda; dealing with the press proactively and reactively; tips and techniques for better presentations to the media, as well as judge and jury.
ABOUT OUR FEATURED SPEAKER:
Bruce Hennes is Managing Partner of Hennes Communications, one of the few ﬁrms in the U.S. focused exclusively on crisis communications and reputation management. Based in Cleveland, Ohio, but with clients across the U.S., Hennes Communications serves corporations, educational institutions, government agencies, hospitals, professional service ﬁrms and nonproﬁts that are “on trial” in the Court of Public Opinion. Mr. Hennes has more than 40 years’ experience in communications, including stints managing political campaigns, working in the automotive industry and as executive director of a large nonproﬁt agency. He opened his own communications ﬁrm in 1989. The ﬁrm’s recent clients include Avery Dennison, ThyssenKrupp, Westﬁeld Insurance, Akron General Hospital, United Way of Greater Cleveland, Lubrizol, the National Aeronautics and Space Administration, Kent State University, the Northeast Ohio Regional Sewer District and the Greater Cleveland Regional Transit Authority, as well as scores of nonproﬁts, municipalities and law ﬁrms across the U.S. The plenary speaker for the previous three years at the ABA’s Bar Leadership Institute and at the recent International Municipal Lawyers Association, Mr. Hennes is a frequent speaker before numerous specialty bar and other trade associations.
REGISTER WWW.DAYBAR.ORG/CLE 14
Dayton Bar Briefs November 2017
DBA Online CLE Deals When You're Running Out of Time...GO ONLINE!
A great variety of programs to choose from.
November 20-27, 2017 45% OFF online CLE
Professional Conduct Requirements We want to help you comply with your bi-annual requirements! A 3.0 hr Professional Conduct seminar is offered at least once a month!
*Most seminars listed below fulfill the biannual requirement for 2.5 hours of Professional Conduct: Recent Ethics Violations & the Ethical Perils of Social Media (video)
Recent Ethics Violations & the Ethical Perils of Social Media (video)
Most Common Ethics Mistakes Lawyers Make When Marketing Their Practice & The Ethics of Marketing Online to Millennials
25th Annual Intellectual Property for General and Corporate Practitioners
Wednesday, December 20, 2017 | 9:00-12:15pm 3.0 CLE Hrs Prof. Conduct | Seminar #1718-063
Tuesday, November 21, 2017 | 9:00-12:15pm 3.0 CLE Hrs Prof. Conduct | Seminar #1718-043
Tuesday, November 28, 2017 | 9:00-12:15pm 3.0 CLE Hrs Prof. Conduct | Seminar #1718-044
Recent Ethics Violations & the Ethical Perils of Social Media (video)
Thursday, December 21, 2017 | 9:00-12:15pm 3.0 CLE Hrs, incl. 1.0 Hr Prof. Conduct and 3.0 Hrs NLT | Seminar #1617-065
Recent Ethics Violations & the Ethical Perils of Social Media (video) Friday, December 29, 2017 | 9:00-12:15pm 3.0 Hrs Prof. Conduct | Seminar #1718-070
Friday, December 8, 2017 | 9:00-12:15pm 3.0 CLE Hrs Prof. Conduct | Seminar #1718-055
New Lawyer Programs
The DBA offers programs designed to satisfy the Supreme Court of Ohio New Lawyer Training Requirements. Those that have been practicing for less than two years can receive special rates on these and other CLE programs!
*New Lawyer Training (NLT) credit is pending for the following CLE programs: Writing for Advocates with Judge Merz
Wednesday, November 15, 2017 | 9:00-12:15pm 3.0 Hrs | Seminar #1718-037
The DBA New Lawyers Division presents:
New Lawyer Training: The Core Components
Wednesday, November 29, 2017 | 9:00-12:15pm 3.0 Hrs and 3.0 Hrs NLT incl. (1.0 NLT Prof., 1.0 Law Practice Mgmt., 1.0 Client Fund Mgmt.) Seminar #1718-046
Domestic Relations 101
Wednesday, November 29, 2017 | 1:00-4:15pm 3.0 Hrs / 3.0 Hrs NLT | Seminar #1718-047
Criminal Law Certification
Thursday, November 30, 2017 | 8:30-3:45pm 6.0 Hrs / 6.0 Hrs NLT | Seminar #1617-048
The Rules of Evidence Series: Character and Impeachment (video)
Wednesday, December 20, 2017 | 1:00-4:15pm 3.0 Hrs / 3.0 Hrs NLT | Seminar #1718-064
25th Annual Intellectual Property for General and Corporate Practitioners Thursday, December 21, 2017 | 9:00-12:15pm 3.0 Hrs., incl. 1.0 Hr Professional Conduct and 3.0 Hrs NLT | Seminar #1617-065
New Lawyer Training: The Core Components (video)
Friday, December 22, 2017 | 9:00-12:15pm 3.0 Hrs / 3.0 Hrs NLT incl. (1.0 NLT Prof., 1.0 Law Practice Mgmt., 1.0 Client Fund Mgmt.) Seminar #1718-066
Domestic Relations 101 (video)
Friday, December 22, 2017 | 12:30-3:45pm 3.0 Hrs / 3.0 Hrs NLT incl. (1.0 NLT Prof., 1.0 Law Practice Mgmt., 1.0 Client Fund Mgmt.) Seminar #1718-071 November 2017 Dayton Bar Briefs
he Dayton University School of Law in partnership with the Dayton Bar Association, and generously sponsored by the Jack and Sally Eichelberger Foundation celebrated the First Monday in October which marked the beginning of the United States Supreme Court Term. The event was held on October 2 in Keller Hall. The Honorable Dennis J. Langer of the Montgomery County Common Pleas Court spoke on the topic of “Abraham Lincoln and the Supreme Court’s Infamous Dred Scott Decision”. Attendees were treated to a delicious lunch of penne pasta, salad and cookies before the lecture which facilitated discussions among law students, members of the bar and others. Judge Langer began his lecture pointing out that by the time of the Supreme Court’s decision in Dred Scott v. Sandford in March of 1857, Abraham Lincoln was an established attorney who had been practicing for more than 20 years. He had handled more than 5,000 cases, 300 of which he had tried before the Illinois Supreme Court, with 1 case argued in front of the United States Supreme Court. Judge Langer talked about Abraham Lincoln’s reaction to the Dred Scott decision in a speech Lincoln gave in June of that same year. Chief Justice Roger B. Taney, a former slaveholder from Maryland, had delivered the majority opinion of the Court. Taney reasoned that Dred Scott and his family could never be free, despite having lived in free territories for a long period of time, because they could never be United States Citizens. Therefore, Taney reasoned, Scott did not have any right to sue in federal court. Taney based this reasoning on his assumption that no former slave could ever be a citizen of the United States, because the statement that “all men are created equal” in Declaration of Independence had never applied to blacks. Lincoln begged to disagree with the accuracy of this statement.
Dayton Bar Briefs November 2017
As the debate about the Scott decision raged, Lincoln engaged in a series of debates against his opponent, Democratic Senator Stephen Douglas. Douglas had delivered a speech defending the decision, stating that the Declaration of Independence referred only to “the white race alone, and not to the African, when they declared all men to have been created equal—that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain—that they were entitled to the same inalienable rights, and among them were enumerated life, liberty, and the pursuit of happiness.” Lincoln, having been criticized for disagreeing with the opinion of the highest court in the land, delivered his response to Douglas in his speech in the State House in Springfield, Illinois. Lincoln pointed out that at least 5 states of the 13 states then in existence, had allowed black men to vote in the Constitutional Convention, among other facts, to prove that the Court had relied upon historical “facts” which “were not really true”. A gifted orator, at one point, Lincoln said to the crowd: “I understand you are preparing to celebrate the "Fourth," to-morrow week. What for? The doings of that day had no reference to the present; and quite half of you are not even descendants of those who were referred to at that day. But I suppose you will celebrate; and will even go so far as to read the Declaration. Suppose after you read it once in the old fashioned way, you read it once more with Judge Douglas’ version. It will then run thus: "We hold these truths to be self-evident that all British subjects who were on this continent eighty-one years ago, were created equal to all British subjects born and then residing in Great Britain."” Lincoln would have been a Twitter superstar. Judge Langer’s lecture was very interesting and inspiring, bringing out many details and nuances to the judicial role in the political events leading up to Lincoln’s presidency and the Civil War. It is well worth it to go back and re-read Lincoln’s speech, as well as the Dred Scott opinion. Thanks to Judge Langer, the School of Law, the Dayton Bar Association, and the Jack and Sally Eichelberger Foundation for putting together this thought-provoking and fun event for the legal By Kristina E. Curry Esq. community in celebration of the DBA Editorial Board First Monday in October. Pickrel Schaeffer & Ebeling Co., LPA
50year HONOREE LUNCHEON
Thank You Honorees!
Hon. John M. Meagher, Patrick A. Flanagan Esq., Hon. Robert L. Deddens, Paul B. Roderer Esq. and DBA President, Brian L. Wildermuth Esq. Not in attendance: Wayne H. Dawson Esq. Thomas A. Holton Esq. Charles J. Roedersheimer Esq. Joel S. Shapiro Esq. James I. Weprin Esq. .& Dave Greer Esq r s, ie on em er C Dunke Master of Director, Sally DBA Executive
*Photos courtesy Julie Noeth of Walling Photography
November 2017 Dayton Bar Briefs
The Unexpected Ally in the War on Drugs:
Estate Planning O O
pioid epidemic. Heroin crisis. Substance abuse. These descriptions of the current problem are sadly becoming more and more prominent, if not prevailing, in all aspects of our lives. It’s a safe assumption, that every single reader of this publication could name a family member or client whose life has been devastated by drugs, legal or illegal. As attorneys and judges, we have an opportunity and obligation to plan for clients and loved-ones who are struggling with addiction. The premise of this article is that with effective estate planning, clients may provide for the treatment of abusers and at the same time, prohibit enabling abuse upon the client’s death or incapacity. As weak as it sounds, the impact of estate planning should not be discounted. Without appropriate estate planning, the death or incapacity of a parent or loved-one with money, usually places a beneficiary in total control of the deceased’s resources. If the beneficiary is drug-dependent, there is no question those resources will be used by the beneficiary to self-destruct. Beneficiaries of testate and intestate estates alike generally do not prohibit the direct transfer of wealth to beneficiaries, even if the inheritance funds addiction. There is no better mechanism than estate planning to fund treatment and at the same time, defund abuse. We interviewed attorneys Brittany O’Diam and Kimberly Estess of O’Diam & Stecker Law Group, Inc. for solutions that are often buried or non-existent in media headlines. Brittany suggests it all starts with knowing your client or party. This means knowing family dynamics and delving into sensitive topics like drug abuse, even if it means asking those tough questions. You must get to know your client. If you learn that your client has a family member or loved-one that is afflicted with substance abuse, then it is your duty to refer that individual to counsel that is competent and can help plan appropriately if it is not in your wheelhouse.
Dayton Bar Briefs November 2017
Once identified, the client has options that go far beyond your basic last will and testament. Generally the advice will be to execute a properly-drafted revocable living trust (“RLT”) with “strings” attached. Such a RLT provides the normal asset protection and discretionary provisions that accompany a basic trust. However, if drugs are identified as a family problem and the goal is treatment, there is much more tailoring that must be done. Brittany and Kim provide some ideas. The basic RLT would contain “strings” that outline treatment, incentives and penalties depending on the drug-dependent beneficiary and goals of the client. In general, Brittany uses two “tests” to help craft an estate plan. First, the “Behavior Test,” focuses on positive lifestyle direction for the abuser. Examples would require that the beneficiary avoid criminal activity or maintain a job. The second “test” is the “Counseling Test,” which is geared towards treatment. Treatment usually requires the help of a licensed chemical dependency counselor (“LCDC”) or a competent licensed professional counselor. Plans may contain one or both tests, or a combination of the two. No two trusts should be identical because family circumstances and treatment plans are unique to the abuser. Template trusts are a non-starter and should not be used. For one estate plan, Brittany combined the Behavior Test and Counseling Test. To receive distributions of either principal or income from the trust share, the beneficiary was required to meet or exceed both tests. The Behavior Test required that for a period of twelve consecutive months, the beneficiary must not have any arrests, criminal charges and no treatment for overdosing. The Counseling Test required that the beneficiary must attend at least two in-person counseling sessions per week with a licensed counselor. In order to pass the Counseling
Brannon By David D. Brannon Esq. Vice Chair Estate Planning Committee Brannon & Associates & Jeremy Blair Sinclair College Candidate for Paralegal Associate of Applied Science, expected Dec. 2017 Test, the beneficiary was required to attend at least 80% of the counseling sessions and that the counselor verify in writing that the beneficiary was not displaying any signs of unlawful drug use during treatment. If the beneficiary passed both tests, he was entitled to receive $1,000 of monthly income from the trust for a period of five years, and if after five years the beneficiary had not failed the Behavior Test, the beneficiary was entitled to the remainder of principal and income of the trust share. Some plans require the beneficiary meet with professional counselors on a consistent and intensive basis. Some plans require the counselor or other third-party professionals monitor the dependent-beneficiary, rather than the trustee, in determining the beneficiary’s compliance. For another family, Brittany structured a trust share that required the beneficiary to have blood, hair and urine testing at least every other month for a period of twelve months. The beneficiary was skilled at manipulating test results, so all three drug tests were conducted at testing. If the beneficiary produced clean test results for the entire twelfth months, the beneficiary was entitled to monthly income payments of $2,000 from the trust, subject to the trustee’s discretion. If the beneficiary failed a test, the twelvemonth requirement reset. Another estate plan devised by Brittany mandated that in order for an addicted child to inherit, he was required to work at the family-owned business. The child was good at the trade. The idea was to keep him focused and productive so he did not have the resources to make bad decisions. Unfortunately, he overdosed and passed away before he could comply with the plan. Besides work requirements, education requirements are also commonplace. The key here is positively
continued on page 19
ESTATE PLANNING: Unexpected Ally in the War on Drugs continued from page 18
structuring the addict’s lifestyle and behaviors, with whatever rewards the settlor of the trust thinks is prudent. When crafting an estate plan for a drug-dependent beneficiary, time frames are particularly crucial. Judge Mary L. Wiseman’s Dayton Bar Briefs September 2017 article highlighting the region’s specialty court programs writes that many “graduate from these programs with a solid two, three, or more years of recovery to their credit.”1 Any time frame of sobriety is progress. However, in the course of Brittany’s development of appropriate plans for clients, she consulted with a licensed independent chemical dependency counselor who advised that at least five years is a requisite benchmark for having a higher chance of staying clean for the long term. The beauty of trusts is the freedom to monitor and treat a beneficiary until the beneficiary dies, assuming the trust share is sufficiently funded. State programs are subject to change and resources are simply not available for constant individual treatment. Estate planning provides for direct and private funding of treatment. It is a win-win-win for the client, State and attorney, even if the addict fails. Kim emphasized that picking a trustee that is knowledgeable and has the wherewithal to monitor a drug-dependent beneficiary is not easy and should not be taken lightly. Generally, trusts with these goals in mind should have some discretion and flexibility for the trustee to navigate the addict’s circumstances. With that discretion however, comes a danger. All too often, set-
tlors nominate another child as trustee that presumably has no addiction issues and can manage the affairs of the drug-dependent sibling. However, a sibling-trustee may “look the other way” in making disbursements to escape a confrontation. Brittany recommends designating a co-trustee or distribution trustee to approve any disbursements to the drug-dependent child. Another thought is to name a counselor as a distribution trustee, that may be more in-touch with the treatment aspects of an addict. The point is to choose trustees responsibly. RLTs are typically administered outside the purview of a court. That has advantages of less administrative expense and speedier administration, but there are disadvantages. Occasionally, settlors may opt for a testamentary trust with similar “strings” discussed above simply because a judge may be more trusted than private administration. A settlor may find comfort that the terms of the trust may be enforced with court involvement. Further, probate court may have the authority and experience that proves invaluable in the execution of a successful plan. There are occasions when lawyers and judges must “get creative” when dealing with addicts, simply because of deficient estate planning. Take a situation where a parent dies and a child-beneficiary stands to inherit a fortune. If the beneficiary suffers from a drug problem that is bad enough, it may call for a guardianship of the person and/or estate over the beneficiary. The statutes governing guardianships would be triggered. That is a high bar, Brittany asserts, because loss of
capacity is the standard. Specifically, R.C. 2111.01(D)(1) states an incompetent means “any person who is so mentally impaired, as a result of a mental or physical illness or disability…or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide.” Brittany asserts that this is a high standard to prove. Imagine the factual and legal issues that arise in trying to show “chronic substance abuse.” The good news is there’s a statute that may give practitioners and judges greater ammunition is addressing the global problem of addicts that inherit money. Hopefully, an estate plan addresses the issue, but this statute may be the back-up plan. We do not carry badges, gavels or even counseling degrees, but there are practitioners like Kim and Brittany that are equipped with the experience and skills to help. Nobody immediately thinks estate planning is the means to the end of the crisis, but as Brittany says, “Plan for the worst and hope for the best.” Thank you to Brittany O’Diam and Kimberly Estess for your time and insight regarding this most-important problem. ENDNOTES: 1
HELP WANTED: How Attorneys and Firms Can Help Fight the Region’s Opioid Epidemic, by Hon. Mary L. Wiseman. Dayton Bar Briefs, September 2017.
November 2017 Dayton Bar Briefs
special guest speaker
Nan Whaley Mayor of Dayton
Sinclair Community College Ponitz Center Thursday, December 14, 2017 Doors open at 11:30am
Each year, the Greater Dayton Volunteer Lawyers Project uses the Dayton Bar Association’s Annual Holiday Luncheon as a way to thank the hundreds of attorneys, paralegals, law school students, and paralegal students in our community who have taken cases pro bono or otherwise volunteer. To date, the GDVLP has provided in excess of $16 million in legal services to the less fortunate members of our community who need legal assistance. Although promoting equal justice and access to the court system for all is vital to its mission, the primary goal of the GDVLP is to provide the local bar with innovative and fulfilling pro bono opportunities.
we wish to thank all 2017 volunteers!
dba holiday luncheon * social time 11:30am * lunch 12:00pm I have volunteered FIVE (5) hours to the GDVLP in 2017. My lunch is FREE! Please make reservations for Reserve
@ $25.00........................................................ $________
tables of 8 @ $200.00....................................................................... $________ Please attach a list of attendees.
Personal Check #
To: DAYTON BAR ASSOCIATION • 109 N. Main St., Ste. 600 • Dayton, OH 45402-1129 • Phone: 937 / 222-7902 • Fax: 937 / 222-1308
Dayton Bar Briefs November 2017
The DBA wishes to thank the Eichelberger Foundation for their generosity in sponsoring these luncheons.
The Chancery Club Luncheon
Date: Friday, November 17, 2017 Speaker: Zachary Heck Esq. Faruki Ireland Cox Rhinehart & Dusing P.L.L. Topic: "Cybersecurity Essentials for Lawyers & Law Firms". Law firms are increasingly joining the ranks of hospitals, banks, and financial institutions as prime targets for hackers. This program will provide practice tips for how lawyers can avoid becoming a target. Caterer: Franco's Ristorante Italiano *Seating is limited. Please RSVP: firstname.lastname@example.org
R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459
Professional Investigative and Legal Support Services Firm Polygraph Asset Searches Criminal Defense Process Service Witness Locates / Interviews Surveillance Civil Case Prep
EDITORIAL ERROR: The DBA made an editorial error in the October issue of Bar Briefs with regards to the Annual Gala for ABLE/LAWO. The “Toledo Bar Association Pro Bono Legal Services” should not have been included. We apologize for any confusion this may have caused.
General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577
November 2017 Dayton Bar Briefs
FROM THE JUDGES DESK
By Hon. Richard S. Skelton Montgomery Cty Common Pleas Court
o doubt we are in the grasp of a heroin and drug use epidemic. This article sets forth a different perspective on the problem. Most low level drug offenders have had multiple felonies and been in and out of Court Ordered in-patient or out-patient treatment facilities. Court Ordered medication programs have been tried. Court Ordered extensive counseling programs have been required. There is the STOP program, the Monday program, Morningstar Program, ILC programs, Christopher House program, Nova House program, TNC program, Green Leaf Program, Project C.U.R.E, Divine Resolutions program, Holt Street Miracle Center program, Access Residential of Dayton program, Care4US BHC program, Cornerstone Project, Day-Mont Behavioral Health Care program, Five Rivers Narcotics Anonymous program, Girls/Guys of Drugs Program, Goodwill Easter Seals of the Miami Valley program, Mahajan Therapeutics program…more programs than Time Warner has channels. The list goes on and on and Courts ORDER the programs without any objective data indicating whether or not any programs are successful. There are simply no studies that effectively measure success. In the first place, no one knows how to define what constitutes success. No future crimes for an individual does not mean that he/she is not using drugs. We all know that most offenders are not caught. Unless a person is willing to undergo long-term drug testing post treatment, we will never know if it works and there is no method or study which has ever
effectively attempted such analysis. Even if there were studies, the question remains: What constitutes success? This Court’s opinion: Treatment for drug addiction will not work UNLESS the individual with the drug problem seeks the treatment. In other words, until the Defendant WANTS the treatment, it simply will not work. As a private attorney, my clients knew which Judges preferred which treatment so that they may escape a jail sentence. Courts are all too willing to offer treatment to a Defendant who seeks help - yeah, right. Most Defendants know the game and it is only when they truly want to beat the addiction that they can take the first step in that direction. Court Ordered Treatment does not mean the individual WANTS the treatment or wants to overcome his/her drug problem. This Court is using an alternative approach. This Court says “NO MAS”. No more Court Ordered Drug Treatment. No more multiple conditions of Probation that run poorly equipped individuals from this drug program to that employment clinic to an assessment for this or that. The rules of No Mas are simple and based somewhat on deterrence and somewhat on providing light at the end of the tunnel. THE NO MAS PROGRAM: Any attorney who has practiced significant criminal defense will tell you that their clients would much rather spend 12 months in Prison versus 6 months in the County Jail. All Defendants HATE confinement at the County Jail. Why? No freedom of movement; no
TV in their room; bad food et cetera. The NO MAS PROGRAM keeps it simple. Each Defendant is only required to do the following: Drug tested for Meth, Coke and Opioids every Monday and Friday. First positive test for any of the aforementioned drugs, 30 days in the county jail. Second positive test, 60 days. Third positive test, 90 days. Two no shows for testing constitutes one positive, no excuses. No probation revocations required, positive test equals jail time. Six months with negative testing and, if possible, a job: probation over. We also help with job placement for Felons. Consequences with an end in sight!! HOW IS IT WORKING SO FAR: We have been utilizing the pilot NO MAS program for three months and report that 98.6 percent of the tests conducted have yielded NEGATIVE results for the drugs mentioned above. There were a few people who just didn’t show at all and we simply issued a capias for their arrest. Again, the No Mas program is not immune from the lack of a method by which to tell objective success. It is simply this Court’s practical approach to an ongoing problem. We make it very clear that any time a Defendant WANTS DRUG TREATMENT, the Montgomery County Adult Probation Department is one of the best entities in the State of Ohio to facilitate same. The Defendant must, however, request the help. So often we hear the adage that you can lead a horse to water but cannot make him drink. The same applies here. Unless and until a person WANTS TO BEAT ADDICTION, all the Court Ordered Programs in the world will not be successful. While I applaud the Courts that are working hard to utilize many of the programs mentioned hereinabove, it is simply this Court’s opinion that there is no data to indicate successful outcomes – despite great efforts of colleagues and persons of goodwill who strive to battle the plague of drug addiction. Court Ordered and other treatments have witnessed skyrocketing costs with no measurable success or end in sight: Ohio Medicaid cost for Heroin medication, $126.6 million 2016; Ohio Medicaid Outpatient detox programs, $216.5 million in 2016. In patient treatment programs that can cost as much as an “Ivy League” school for one year.1 By way of local example, Montgomery County jail cost per person is approximately $65 per day ($1,900 per month) versus $265 per day ($8,000 per month) for an in-patient treatment program. This Court could argue that the $265 a day would be well worth the cost IF WE KNEW IT WORKED. Unfortunately, there is no solid evidence that it does work. This Court says: NO MAS. Laura A. Bischoff, Columbus Bureau, Dayton Daily News, June 10, 2017
Dayton Bar Briefs November 2017
welcome new members ATTORNEY DEEK, Ghassan J. Deek Law, LLC Admitted to Ohio Bar: 5/17 NALLS, Christopher M. Bricker & Eckler LLP Admitted to Bar: TX 8/13, DC 7/17 THOMPSON, Perry C. Horenstein Nicholson & Blumenthal, LPA Admitted to Ohio Bar: 11/15 PARALEGAL CLARK, Christina L. GDVLP
november committee meetings
Juvenile Law Monday, November 6, 2017 Diversity Issues Tuesday, November 7, 2017 Paralegal Tuesday, November 7, 2017 Appellate Court Practice Wednesday, November 8, 2017 Domestic Relations Thursday, November 9, 2017 Environmental Law Thursday, November 9, 2017 Real Property Thursday, November 9, 2017 Public Service & Congeniality Friday, November 10, 2017 Federal Practice Monday, November 13, 2017 Civil Trial Practice & ADR Tuesday, November 14, 2017 Labor & Employment Law Tuesday, November 14, 2017 Criminal Law & Its Enforcement Wednesday, November 15, 2017 Corporate Counsel (In-House Counsel) Thursday, November 16, 2017
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November 2017 Dayton Bar Briefs
law-related organizations Dayton Bar Association Foundation
The Dayton Bar Association Foundation would like to thank the members of the Dayton Bar Association for your donations to the William B. Wheeler Honorary Fund. Due to your very generous support $9,070 has been donated to the fund and will go towards the Dayton Bar Associationâ€™s Leadership Development Program. This program is designated to mold, develop and refine the leadership skills of up and coming Dayton Bar members. The fund was set up to thank Bill, who retired September 30th for his service as Executive Director for the past 14 years. If you would like to contribute to this fund, donations can be sent to: Dayton Foundation, Inc., 40 N. Main St., Ste. 500, Dayton, OH 45423 in the name of William B. Wheeler Honorary Fund, #7980. Again, thank you for your support and join us in wishing Bill a very happy retirement! To obtain more information about the Dayton Bar Association Foundation
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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 2017
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Pickrel, Schaeffer and Ebeling is proud to announce that CHRISTINA BACK has recently joined the firm. Christine will assist PS&E with matters that have to do with Immigration Law. She will work with businesses to help with immigrant labor practices and also with families to help guide them through residency and citizenship. Christie is a graduate of Case Western BACK Reserve where she was VP and then President of The St. Thomas More Society. While in law school, her concentration was business law, which, combined with her love of Spanish, led her to complete a semester of law school in Madrid, Spain. There she studied many facets of international law and European business law with students from all over the world. MRS. BRIDGET FINDLEY has been promoted to Chief Civil Counsel for the City of Dayton Law Department. Mrs. Findley earned her J.D. degree from Creighton University and previously worked for the U.S. Environmental Protection Agency and the U.S. Department of Defense. She volunteers for multiple Dayton organizations and is a board member of the Dayton Federal Bar Association. Additionally, she is active in the Military Spouse Juris Doctorate Network advocating for bar admission and legal licensing accommodations on behalf of military spouse attorneys across the country. In 2017 she was selected the City of Dayton Attorney of the Year and is a past recipient of the Dayton Chapter of the Federal Bar Association Mona Guerrier Public Service Award. MR. JOHN MUSTO has been promoted to Chief Civil Trial Counsel for the City of Dayton Law Department. Mr. Musto earned his J.D. Degree from the Indiana University School of Law, cum laude. His practice focuses on police liability, torts, and contract litigation. Mr. Musto is admitted to practice in Ohio and before the U.S. District Court for the Southern District of Ohio, the U.S. District Court for the MUSTO Northern District of Ohio, the U.S. District Court for the Eastern District of Michigan, and the 6th Circuit Court of Appeals.
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MR. ANDREW SEXTON has been promoted to Chief Criminal Trial Counsel for the City of Dayton Law Department. Mr. Sexton received his J.D. from the University of Dayton. Prior to his public service, Mr. Sexton was an associate in the firm of Gibney, Stephan, Barrett, and Root in Xenia, Ohio. He is an adjunct faculty member at Sinclair Community College where he has taught Criminal Law, Ethics and Professionalism in Criminal Justice, and special subjects in the Police Academy as well as Fundamentals of Evidence and Criminal Procedure. In 2016, Mr. Sexton received the college’s distinguished Adjunct Faculty of the Year award. In 2004, he received the college’s Appalachian Unsung Hero Award for Outstanding Government Leader. Pickrel, Schaeffer and Ebeling is pleased to announce that ELI SPERRY has been accepted as a member of the Leadership Dayton Class of 2018. Leadership Dayton is a community leadership program that has been in existence since 1976. Class members are chosen from a cross-section of the community and represent the region’s mid-to-upper level management. The SPERRY program focuses on leadership, education, economic development, diversity, justice, the arts, government, health, and human services. With more than 1,200 alumni, the mission of the program is to identify, educate, and motivate a network of community leaders, to increase the individual’s capacity to serve the Dayton region. Eli is an associate in the Probate and Estate Planning department of PS&E. He has been practicing for over 9 years, counseling clients of all ages to assure the clients intentions are clearly understood and carried out correctly. His goal with all clients is to provide the best advice from all different perspectives including tax, business, legal and long-term care options. Eli is an active participant in the DBA’s Will for Heroes program, and he also provides pro bono legal services as part of the Greater Dayton Volunteer Lawyers Project. Eli recently received the 2015 Montgomery County Probate Courts, Law Day Award; and in 2016 was named “Forty under 40” winner by the Dayton Business Journal.
House Bill 49 - TCAP Offenders Wednesday, November 8, 2017
The Chancery Club Luncheon Friday, November 17, 2017
2017 Annual Elder Law Update Thursday, November 9, 2017
New Lawyer Training: The Core Components Wednesday, November 29, 2017
Writing for Advocates with Judge Merz Wednesday, November 15, 2017
Criminal Law Certification Thursday, November 30, 2017
Dayton Bar Briefs November 2017
Crisis Communications & Management for Lawyers & Their Clients Tuesday, December 12, 2017 2017 Holiday Luncheon Thursday, December 14, 2017 Judge Langer’s 2017 Criminal Law Update Seminar Friday, December 15, 2017
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Small AV Rated law firm in Dayton has immediate opening for associate attorney with practice experience relating to trial work and or probate to share office space as independent contractor with some referrals possible. Send resume to following: Dayton Bar Association, 109 N. Main St., Suite 600, Dayton, OH 45402-1129 ATTN: 11117.
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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.
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advertiser index ComDoc Inc..............................................23 Eikenbary Trust.......................................7 Elizabeth Diamond Company ..............11 Ferneding Insurance.................................9 LCNB Bank................................................21 The Lipp Firm Co., LPA..............................7 National Processing Solutions.............27 OBLIC..........................................back cover R.L. Emmons & Associates.....................21 Rogers McNay Insurance.......................10 Trisha M. Duff - Mediations...................17 Thomas Whelley II -Mediations......... 19
November 2017 Dayton Bar Briefs
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