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The Magazine of the Dayton Bar Association |OCTOBER 2018 | Vol. 68, No. 2

Dayton

Bar Briefs 26th annual

DBA Bench Bar Conference Friday, November 9, 2018

LAWYERS:

The Gatekeepers of Justice, Fairness and Democracy?

Trustee's Message The Honorable Mary L. Wiseman pg 4

Barrister of the Month Kelly Henrici Esq. pg 6

Issue 1 Chief Justice Maureen O'Connor pg 23


Dayton

CONTENTS

Bar Briefs

October 2018 | Vol. 68, No.2

Dayton Bar Association Board of Trustees

Features 4 TRUSTEE'S MESSAGE The DBA Makes Dayton a Great Place for Lawyers

By The Honorable Mary L. Wiseman

2018 – 2019

David P. Pierce President

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By Kristina E. Curry Esq.

Hon. Mary L. Wiseman First Vice President

Fredric L. Young

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Secretary

By The Honorable Mary Katherine Huffman

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Cassandra L. Andres Rice

By Lindsay M. Johnson Esq.

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Member–at–Large

By The Honorable Mary L. Wiseman

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Adam R. Webber

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Member–at–Large

Brian L. Wildermuth Immediate Past President

DBA RISING STAR: ROBERT H. HOLLENCAMP ESQ. By Michelle T. Sundgaard Esq.

Departments

John M. Ruffolo, ex officio

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2018 OCTOBER COMMITTEE MEETING DATES

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CONTINUING LEGAL EDUCATION

Sally Dunker, ex officio

31

CLASSIFIEDS

Bar Counsel

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. 2 2

THE HIDDEN DISASTER OF STATE ISSUE 1 By Ohio Supreme Court Chief Justice Maureen O'Connor

Denise L. Platfoot Lacey Member–at–Large

FROM THE JUDGES DESK Annual Pro Bono Checklist for Attorneys

Member–at–Large

Caroline H. Gentry

DBA CLE SPOTLIGHT: Are You Prepared for a Cybersecurity Breach? The Top 5 Precautions Every Business Should Take

Brandon C. McClain Treasurer

DBA CLE SPOTLIGHT: Criminal Rules by the Numbers

Second Vice President

Cara W. Powers

BARRISTER OF THE MONTH: KELLY HENRICI ESQ.

Dayton Bar Briefs October 2018 Dayton Bar Briefs October 2018

Upcoming Events 5 BREAKFAST WITH THE BENCH Friday, October 26th | 8:00am-9:00am | Sinclair Community College

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OCTOBER CHANCERY CLUB LUNCHEON Friday, October 5th | Doors open 11:30am | The Old Courthouse

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50 YEAR HONOREE LUNCHEON Wednesday, October 10th | Doors open at 11:30am | Sinclair Community College

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WILLS FOR VETS Saturday, November 10th | Training 8:30am; Appointments 10:00am-2:00pm| Dayton VA Medical

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ANNUAL ELDER LAW UPDATE Tuesday, October 30th | 8:45am-4:30pm | Sinclair Community College

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ANNUAL BENCH BAR CONFERENCE

Friday, November 9th | 8:30am-3:45pm | Sinclair Community College *Early Bird Rate Ends October 26th! 937.222.7902 937.222.7902


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.

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

Faruki Ireland Cox Rhinehart & Dusing P.L.L. www.ficlaw.com With offices in Cincinnati & Dayton Faruki Ireland Cox Rhinehart & Dusing P.L.L. is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.

GOLD Partner

www.daybar.org

Thompson Hine LLP www.thompsonhine.com Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience.” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.

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TRUSTEE'S MESSAGE

The DBA Makes Dayton a Great Place for Lawyers By Hon. Mary L. Wiseman DBA First Vice President Montgomery County Court of Common Pleas

D D

ayton and the surrounding region often get a bad rap in the national media. Within the past few years, reporters and producers have generated shows and stories spotlighting the Dayton region’s weaknesses. Some examples of this Dayton doomsday journalism include the recent PBS Frontline episode entitled Left Behind America; Time magazine’s photo spread on the drug epidemic in the area; and the numerous media outlets that declared Dayton the nation’s epicenter of opioid overdose deaths. Those national stories, videos, and photographs telling Dayton’s story reveal hard, brutal truths. As a region, we must face our weaknesses and challenges in order to overcome them. I, however, have a bone to pick about these dire media portrayals of my adopted hometown. Anything and everything can look awful with myopia. The national media’s fascination with broken systems and bad outcomes too often overlooks the amazing positives in Dayton and its endless, rising possibilities. Those undeniable positives, combined with a contagious Daytonian spirit of innovation and grit, lead me to believe that Dayton is a city on the rise. Dayton is a hidden gem, undervalued nationally, but treasured locally. Do we have problems? You betcha. Do we have hope, spirit, solutions, creativity, spunk, and leadership to overcome our problems? Yes, in spades and then some more. My list of reasons for and examples illustrating Dayton’s greatness and resilience could stretch for many pages. The capsule version is as follows. First, Dayton has a culture of community service and philanthropy that is unmatched among similar communities. Second, the region abounds in effective social service and treatment agencies, high quality healthcare, and other social-economic safety nets that are often absent or deficient in other communities. Third, the post-globalization restructuring of the Dayton economy has created a more dynamic and resilient economy that blends manufacturing, assembly, logistics, fulfillment, technology, and service. That more diverse mix makes the local economy less susceptible to the body blows suffered in economic downturns when the economy was based largely on manufacturing, boding well for survival and rebound during future recessions. Fourth, no rush hour. You might encounter, on some random days, a rush half-hour, at most, in Dayton. Drive in L.A, Portland, Atlanta, Austin, or N.Y.C at 7:30 a.m., and then try to tell me that your quality of life isn’t impacted by massive sprawl and traffic congestion that will park you on the interstate for hours every day. Fifth, Dayton has quality of life amenities too numerous to list. Ample, clean, and safe parks, green space, bike trails, and rivers envelope us. Phenomenal arts and culture groups surround us. From classic to hipster, we have it. Sixth, the cost of living here is sweet. Don’t believe me? Go online to check out the cost of housing in or near larger urban areas. I’ll wait as you pick yourself off of the floor. Finally, and most importantly for lawyers (new and experienced), is the rare collegiality of the local bar. Thanks to the Dayton Bar Association and its programs, we know each other. We interact outside of the courthouse, depositions, and deal closings. We have become friends and social acquaintances. We help and mentor other lawyers. We have built trust and respect between us. We embrace pro bono. We share a camaraderie that includes celebrating and

continued on page 5 4

Dayton Bar Briefs October 2018

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TRUSTEE'S MESSAGE: The DBA Makes Dayton a Great Place for Lawyers continued from page 4 mourning together. As a result, we are less often jerks to each other. That enhanced civility and professionalism embedded within the Dayton bar translates directly into increased professional satisfaction. Take a deposition defended by a lawyer from a different, large metropolitan area and compare that experience to the deposition defended by a local lawyer. Often, the cultural difference is striking, to put it mildly. Your active participation in the DBA is the key to this distinctive cultural and professional dynamic. Attending DBA CLE classes, going on DBA outings like Dragons games or a service day at The Foodbank, and attending DBA committee meetings and events generate the invaluable personal connections that make practicing law in Dayton so vastly different from other communities. Those personal connections and that sense of belonging to a cordial and supportive community, facilitated by the DBA, mean less burn out, a better quality of life, and greater job and professional satisfaction for lawyers. Indeed, I look forward to seeing you soon at a DBA event or meeting so that you can share with me your own list of what makes Dayton and the DBA great.

www.daybar.org

Breakfast with The Bench

!

Friday, October 26, 2018 | 8:00-9:00am Sinclair Community College, Building 12

Join us for your chance to mingle with the Judges of the local counties, including all of the Judges of the four divisions of the Court of Common Pleas, the five judges of the Court of Appeals, the twelve Judges of the Municipal Courts. Federal Judges and Magistrate Judges assigned to Dayton will also be in attendance.

RSVP to Tyler Wright: twright@daybar.org

October 2018 Dayton Bar Briefs

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KK

elly Henrici knew at the age of ten that she wanted to be the first female Supreme Court Justice of the United States. “I was so happy for Sandra Day O’Connor, but also quite sad – she stole my goal”! Undaunted, Kelly continued to pursue a career in law and has enjoyed all of her years practicing, and admires all four women who have achieved the role she coveted as a young girl. Kelly moved to Dayton in 1988 when her husband , Nick, was transferred here from Dallas, Texas by The Reynolds + Reynolds Company. Shortly after moving to Dayton, Kelly applied to be the inaugural Executive Director of the Greater Dayton Volunteer Lawyers Project. The job was offered to Helenka Marculewicz, who was the perfect choice to lead the organization in its first 25 years. Born in Michigan, coming to Dayton felt

Kelly's First Solo Flight!

like coming home. Having a great-grandfather who was the second ever university level graduate at the University of Dayton, and a grandfather who studied at St. Mary’s Institute on the University campus before heading off to fight in World War I, made it a natural fit when Kelly , then a paralegal at Reynolds + Reynolds, enrolled in the University of Dayton School of Law. Nick and Kelly already had a son, Matthew, by the time she started law school in 1991. Matt gave her the extra passion and motivation to focus on her studies. After graduating from Dayton Law, Kelly became a Corporate Attorney at Reynolds + Reynolds. When Reynolds sold its business systems division to The Carlyle Group, a private equity firm, Kelly became General Counsel and Secretary of The Relizon Company. It was like starting a new company

from the ground up, except on day one there were thousands of employees throughout North America who wanted a pension plan and other benefits – and a corporate headquarters, which took two years to build! Kelly enjoyed spending seven years at Relizon, which was then sold and later merged with Standard Register. After working so hard as part of the Relizon team, Kelly enjoyed a brief break and stayed home to enjoy one of Matt’s years in high school. When then Dean Lisa Kloppenberg from the University of Dayton School of Law invited her to become the Executive Director of the Program in Law and Technology, Kelly couldn’t refuse the opportunity to run the Program she once enjoyed so much as a student while studying under Professor Robert Kreiss, a key mentor in her career. Remember that Kelly did not get a job offer when the Greater Dayton Volunteer Lawyers Project was started in 1988? In 2013, Helenka decided to retire after 25 years of dedicated service to the Dayton legal community and low-income individuals assisted by pro bono volunteers through the GDVLP. It seemed that every aspect of her career during those 25 years led her to be a good fit to take over as the second GDVLP Executive Director and, after Nick passed away unexpectedly, it seemed like the right thing to do by channeling her energies into helping others. Kelly has tremendous passion for making volunteerism effective and efficient for volunteers to serve those less fortunate in our community. Whether it’s taking a case, or serving at a pro se clinic,

continued on page 7 6

Dayton Bar Briefs October 2018

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BARRISTER OF THE MONTH: KELLY HENRICI ESQ. continued from page 6

Kelly enjoyed finding the perfect fit for each attorney, paralegal and student volunteer who wants to use his or her talents to help others. Kelly always enjoys a good challenge and her partner, Al, gave her flying lessons as a gift. Those who know Kelly well always ask Al, “have you seen her driving?” but, undaunted, Kelly has spent the last three years learning to fly a single engine airplane at Dayton Wright Brothers Airport. On December 1, 2017 she made her first solo flight and has only a few more requirements before she gives up her “student pilot” status! Kelly has also finished four full marathons and many half marathons, and for five years in a row she rode in 100 mile bicycle rides to fundraise for the Juvenile Diabetes Research Foundation. Kelly enjoys spending time at her favorite beach on Seabrook Island, South Carolina, which was spared by Hurricane Florence. Kelly eagerly awaits becoming a first- time grandmother in November. Congratulations to Kelly on being Barrister of the Month for October 2018! By Kristina E. Curry Esq. Co Chair DBA Editorial Board Pickrel, Schaeffer & Ebeling Co., LPA

www.daybar.org

The Chancery Club

Luncheon

Friday, October 5, 2018 | Doors open 11:30am Catering: Boosalis Catering Location: The Old Courthouse Speaker: Judge Mary Katherine Huffman Topic: "The Hidden Disaster of State Issue 1"

Seating is Limited! RSVP to Tyler: twright@daybar.org

October 2018 Dayton Bar Briefs

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celebrating our members who have been in practice for 5 decades!

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Dayton Bar Briefs October 2018

50 Year Honoree Luncheon Wednesday, October 10, 2018 | Doors open 11:30am Sinclair Community College, Building 12 RSVP (1) $35 | Table (8) $280 Register! www.daybar.org or call 937.222.7902

Congratulations 2018 Honorees:

Ray A. Cox

Gary L. Froelich

James P. Hickey

William H. Seall

Michael H. Holz

Ralph A. Skilken Jr.

J. Michael Herr

Hon. John W. Kessler

Hon. William H. Wolff Jr.

937.222.7902


www.daybar.org

October 2018 Dayton Bar Briefs

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DBA CLE SPOTLIGHT

Criminal Rules by the Numbers

By Hon. Mary Katherine Huffman Montgomery County Court of Common Pleas

T T

he Dayton Bar Association offers a broad catalog of continuing legal education programs designed to meet the professional, ethical and substantive interests of the bar. The annual CLE lineup encompasses programs for lawyers, whether new to the practice, in mid-career, or those with a wealth of experience. The DBA CLE inventory incorporates sessions concentrating on a variety of practice areas, including criminal, civil, probate, family law, litigation, IP, and business matters. The DBA places particular emphasis on CLE presentations for lawyers experienced in a particular field, as well as practitioners seeking in-depth analysis of a familiar topic. In the Bar’s continuing effort to provide new and innovative CLE offerings designed to meet the needs of recent admittees to the bar as well as serve as a refresher to more experienced lawyers, the DBA offerings now include a three-part series on the Rules of Criminal Procedure, entitled “Criminal Rules by the Numbers.� The courses serve as an important primer for practitioners on the Ohio Rules of Criminal Procedure, and will highlight recent changes and additions to the rules. The first program in the three-part series focuses on pretrial proceedings, the second on the trial process, and the final installment of the series on post-trial proceedings, including post-conviction matters. The issues addressed in the first of the three-part series concentrates attention on concerns from indictment through the plea. Grand jury proceedings represent a hot-topic in the law, particularly the secrecy of the proceedings. Several amendments to the criminal rules related to grand juries have been proposed in recent years; the Criminal Rules CLE offered by the DBA will provide a unique opportunity for practitioners to explore the historical antecedents of

the grand jury process and modern concerns affecting the grand jury. Significant discussion in the program centers on the indictment and information process, joinder of offenses and defendants, as well as relief from joinder, discovery requirements and innovations, including electronic discovery, depositions, subpoenas, and the pretrial conference. The session concludes with the often challenging and multi-dimensional concerns associated with the plea process. The program includes a discussion of the requirements and nuances of the plea process, including plea negotiations and judicial involvement in plea agreements. The most recent case law on all of the Criminal Rules affecting pretrial procedures will be discussed and provided to attendees. The second program, to be offered in the Spring of 2019 will afford practitioners an opportunity to examine all aspects of the trial process, including voir dire, the purposes and limitations of opening statements, examination of witnesses, the objection process, trial motions, defenses and the verdict. Sentencing, which is an everincreasing complex minefield for practitioners and courts alike, will be examined. The final program, to be offered in the Fall of 2019 focuses on post-trial proceedings, including post-trial motions, the intricacies of requests for new trial, and the complex civil process of post-conviction relief. Please join your fellow criminal practitioners on Thursday, November 1, 2018 from 8:30am to 11:45am at the Dayton Bar Association, Seminar Room, for the first in the three-part series of seminars on the Rules of Criminal Procedure.

The seminar:

Criminal Rules by the Number: Pretrial Proceedings Thursday, November 1, 2018 8:30am - 11:45am | 3.0 General Hrs M $105 | NM $150 | P$0 Speaker: Hon. Mary K. Huffman

Montgomery County Common Pleas Court

Agenda: This first part of a three-part series on the Ohio Criminal Rules will focus on pre-trial proceedings. This session is an important primer on the Ohio Criminal Rules for anyone practicing criminal law.

to register: daybar.org/cle 10

Dayton Bar Briefs October 2018

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Upcoming Wills for Vets Event!

Dayton VA Medical Center Saturday, November 10, 2018 Training: 8:30am Appointments: 10:00am - 2:00pm Contact Chris for details: calbrektson@daybar.org

www.daybar.org

October 2018 Dayton Bar Briefs

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october 2018 cle ON DAYT ociation Bar ass

2 0 18

r Fall/Wintening Guide CLE Plan

Your 2018 Fall/Winter CLE Planning Guide Has Been Mailed! Go Online & Register for CLEs in one easy click! www.daybar.org/cle

Mandatory Estate Efiling Wednesday, October 3, 2018 4:00pm - 5:00pm | 1.0 General Hr Committee M $25 | M $35 | NM $45 |P $0 Don’t miss the opportunity to bring your staff for this important training!

Recent Ethics Violations and the Ethical Perils of Social Media (video replay) Monday, October 22, 2018 1:00pm - 4:15pm | 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

The Drones Are Coming! An Overview of Current Law and Future Trends

Federal Law Committee presents:

Federal Habeas Corpus Appointments Within the Southern District of Ohio

Wednesday, October 24, 2018 12:00pm -1:00pm | 1.0 General Hr M $35 | NM $45 | P $0 Speaker: Caroline H. Gentry, Porter Wright Morris & Arthur LLP

Wednesday, October 10, 2018 12:00pm - 1:00pm | 1.0 General Hr Committee M $25 | M $35 | NM $45 |P $0 Speaker: Glen R. McMurry Esq., Dinsmore & Shohl LLP This program will briefly describe the CJA Panel Appointment process for Federal Habeas Corpus cases within the Southern District of Ohio. This presentation will also distinguish 2254 and 2255 cases. This presentation will also identify common elements of the habeas corpus process.

Estate Planning 101 (video replay)

Every year, commercial unmanned aerial vehicles (UAVs, also known as drones) become more prevalent in a number of industries, including real estate, construction, geoscience, and agriculture. Federal Aviation Administration regulations allow businesses to fly small UAVs but do not govern privacy, tort law or criminal law—so state and local governments are stepping in. What legal issues do businesses face and what trends should they anticipate? This presentation will provide an overview of current law and future trends relating to commercial drones.

Writing for Advocates (video replay)

Tuesday, October 16, 2018 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

Friday, October 26, 2018 9:00am -12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

Appointed Appellate Counsel Seminar (video replay) Friday, October 19, 2018 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0 Those who should attend: Attorneys currently on the appellate appointed counsel list, attorneys interested in being added to the appellate appointed counsel list, and any attorneys who might benefit from learning about the appellate process in appointed cases. This CLE is related to criminal appointed appeals. Topics discussed will include tips on how best to represent indigent clients, the Anders brief process, summaries of significant Second District cases, appointed counsel fee documents, a survey of appellate practice in Ohio, and the appellate process from a prosecutor’s perspective.

Annual Elder Law Update *see page 13 for details Tuesday, October 30, 2018 8:45am - 4:30pm 5.0 General Hrs + 1.0 Professional Conduct Hr M $215 | NM $300 | P $30 Location: Sinclair Community College, Building 12 Lunch and Parking included in registration! Speakers: Michael Millonig, Porter Wright Morris & Arthur LLP & Robert J. Byrne, Assistant Attorney General

Staying on Target: Recent Changes to Ohio’s Gun Law (video replay) Wednesday, October 31, 2018 12:00pm - 1:00pm | 1.0 General Hr Committee M $25 | M $35 | NM $45 | P $0

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Dayton Bar Briefs October 2018

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Tuesday, October 30, 2018

6.0 CLE Hrs

Sinclair Community College

Annual

Elder Law Update Tuesday, October 30, 2018 8:45-4:30pm 5.0 General Hours + 1.0 Professional Conduct Hour

Attorneys looking for insight into various areas of elder law. This seminar will provide a look into the aging demographic and the various programs - both legal and medical - that are available to assist that demographic. AGENDA: 8:45am-9:45am Defining Elder Law; Medicaid Coverage for Nursing Homes; Countable Resources and Exempt Resources Michael J. Millonig, Esq.: Certified as an Elder Law Attorney by the National Elder Law Foundation, OSBA Board Certified Estate Planning Trust and Probate Specialist; C.P.A. Inactive.

9:45am-10:45am The Changing Landscape of Long Term Care Insurance As America ages, senior care options are beginning to make the headlines. Eighty million baby boomers are beginning to grapple with one major health expense that could wipe out their financial portfolio: long-term care. Randolph W. Gallas, CLTC, LTCP, Long Term Care Insurance Agency, LLC in Kettering, Ohio.

Special Guests: Michael J. Millonig Esq. Certified Elder Law Attorney and

Robert J. Byrne

Assistant Attorney General

10:45-11:45am BREAK 11:00am-12:00pm Care Planning for Difficult Decisions in Elder Care Jan L. Welsh, Owner of Special Care for Older Adults, LLC, CMC, LPC, CRC; Board Member and Advanced Professional Member of the Aging Life Care AssociationÂŽ

12:00pm-1:15pm Lunch

1:15pm-2:15pm Medicaid Estate Recovery Robert J. Byrne, Assistant Attorney General

2:15pm-3:30pm The Robertson Case and other Ethical Issues in Probate Practice Edward M. Smith of Nolan, Sprowl & Smith

3:15pm-3:30pm BREAK

Pricing:

Member $215/$230 day of NonMember $300/$315 day of Passport $30 Printed Materials $30 *Order by October 19th *Materials will be available in digital format free of charge.

Register! www.daybar.org/cle

3:30pm-4:30pm Planning Strategies for Asset Protection for our Clients, Avoiding Estate Recovery

937.222.7902

Michael J. Millonig Esq.

Dayton Bar Association

4:30pm ADJOURN www.daybar.org

109 N. Main St., Suite 600, Dayton, OH 45402

October 2018 Dayton Bar Briefs

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november 2018 cle Earn CLE Anytime, Anywhere.

A great variety of programs to choose from.

dba cle savings Earn Up To 12-Hours of Ohio CLE Credit Per Reporting Period at:

Daybar.ce21.com

Take up to

12 hours of self study credit.

A great variety of programs to choose from. Earn Up To 12-Hours of Ohio CLE Credit Criminal Rules by the Number: Pretrial Proceedings Per Reporting Period at: *see page 10 for details Thursday, November 1, 2018 8:30am - 11:45am | 3.0 General Hrs M $105 | NM $150 | P$0 Speaker: Hon. Mary K. Huffman, Montgomery County Common Pleas Court

Daybar.ce21.com

This first part of a three-part series on the Ohio Criminal Rules will focus on pre-trial proceedings. This session is an important primer on the Ohio Criminal Rules for anyone practicing criminal law.

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

Oral Advocacy

For more info and course listings, please visit

Wednesday, November 7, 2018 Daybar.ce21.com or call 937.222.7902. 12:00pm - 1:00pm | 1.0 General Hr M $35 | NM $45 | P$0

2018 26th Annual DBA Bench Bar Conference Lawyers: The Gatekeepers of Justice, Fairness and Democracy? *see page 15 for details Friday, November 9, 2018 8:30am - 3:45pm 5.75 General Hrs, incl.1.0 Professional Conduct Hr EARLY BIRD SPECIAL: Register before October 26th! M $175 | NM $275| P $30 After October 26th: M $200 | NM $300 | P $30 Location: Sinclair Community College, Bldg 12 Printed Materials $30 Lunch and Parking included in registration!

Online CLE programming allows you to take CLE courses on a wide variety of topics, any time of the day, any day of the week! For more info and course listings, please visit Daybar.ce21.com or call 937.222.7902.

Ethics Case Law Review and New Advisory Opinions Thursday, November 15, 2018 9:00am - 12:15pm 3.0 Professional Conduct Hrs M $105 | NM $150 | P$0 Speakers: John Ruffolo, Tabitha Justice and Mark A. Tuss

Recent Ethics Violations and the Ethical Perils of Social Media (video replay) Tuesday, November 20, 2018 9:00am - 12:15pm 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

Juvenile GAL Update Wednesday, November 28, 2018 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

The Anatomy of a Will Contest Wednesday, November 28, 2018 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

Appellate Practice Update: Appellate Issues, Advocacy & The Criminal Appeal Thursday, November 29. 2018 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0 Speakers: Judge Michael J. Newman, Judge Jeffrey Welbaum and Angelina Jackson

Introduction to Cybersecurity: Standard Care for Lawyers and Their Clients *see page 18 for details

Criminal Law Certification Friday, November 30, 2018 9:00am - 4:45pm | 6.0 General Hrs M $215 | NM $300 | P $0

Wednesday, November 14, 2018 12:00pm - 1:00pm | 1.0 General Hr M $35 | NM $45 |P $0 Speaker: Lindsay M. Johnson, Freund Freeze & Arnold Discussion of current cybersecurity attacks and trends, noteworthy case law, and cybersecurity standards of care for lawyers and their clients.

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Dayton Bar Briefs October 2018

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Friday, November 9, 2018

5.75 CLE Hrs

Sinclair Community College

26th annual

DBA Bench Bar Conference Friday, November 9, 2018

LAWYERS:

The Gatekeepers of Justice, Fairness and Democracy? Agenda: 8:30am-8:45am 8:45am-10:15am 10:15am-10:30am 10:30am-11:30am

Welcome and Introductions PLENARY 1 – Lawyers Protecting Immigrants: The Children Are Not Okay Break

Breakout Session I Special Guest Speaker! - Juvenile Court - "Protecting Families First" Jeff Cohen, - Probate Court - "Safeguarding the Elderly" Entertainment Lawyer - United States District Court Civil and Criminal - Municipal Court - "Lawyers: Preserving Civil Liberties (Pre-Trial Release)"

26th annual

DBA Bench Bar Conference

LAWYERS:

11:30am-11:35am Break 11:35am-12:35pm PLENARY 2 - #WeToo: Lawyers Raising the Bar: Identifying, Addressing & Preventing Sexual Harrassment (1.0 Hour Professional Conduct) 12:35pm-1:30pm Lunch

The Gatekeepers of Justice, Fairness and Democracy?

1:30pm-2:30pm PLENARY 3 – The Private Practitioners' Role in Creating Positive Change Jeff Cohen, Entertainment Lawyer 2:30pm-2:45pm Break 2:45pm-3:45pm Breakout Session 2 - Domestic Relations Court - Common Pleas Court Civil and Criminal - Appellate Court - "Second District Court of Appeals Update"

Friday, November 9, 2018 | 8:30am-3:45pm 5.75 CLE Hours, including 1.0 Hour of Professional Conduct EARLY BIRD SPECIAL Register By October 26th : Member $175 | Nonmember $275 | Passport $30 After October 26th: Member $200 | Nonmember $300 | Passport $30 Location: Sinclair Community College, Building 12 Lunch and Parking Included in Registration!

www.daybar.org

Jeff Cohen is an Entertainment Lawyer in Beverly Hills, CA. He is well-known for his role as "Chunk" in the Steven Spielberg film "The Goonies".

Register! www.daybar.org/cle 937.222.7902 Dayton Bar Association

109 N. Main St., Ste. 600, Dayton, OH 45402

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december 2018 cle A Civil Trial - Tips from the Pros: Do's and Don’ts from the Bench, Cross Examination in a Personal Injury Case *see page 17 for details Tuesday, December 4, 2018 9:00am-12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0 Location: Montgomery County Common Pleas Courtroom #4 Speakers: Judge Steven Dankof, Judge Michael Krumholtz, Patrick Allen, Thomas Green, John Smalley, Chris Carrigg, Will Allen and John Haviland

Domestic Relations Update: Ohio Child Support Law Wednesday, December 5, 2018 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

Crisis Management for Attorneys & Their Clients Wednesday, December 12, 2018 11:30am - 12:30pm | 1.0 General Hr M $35 | NM $45 | P $0 Speaker: Thom Fladung, Hennes Communications

Real Property: Five Crash Courses in Five Common Real Property Matters and Legal Updates Wednesday, December 12, 2018 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | P $0 Speakers: Jonathan F. Hung and Robert D. Ballinger The approach to this session is to provide an introductory overview into each topic to help new and experienced attorneys who may be making a foray into the arcane art of real property law.

Judge Langer’s 2018 Criminal Law Update Seminar New Lawyer Training Core Components: Professionalism, Law Office Management and Client Fund Management

Thursday, December 20, 2018 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

26th Annual Intellectual Property for General and Corporate Practitioners *see page 17 for details Friday, December 21, 2018 9:00am - 12:15pm 2.0 General Hrs + 1.0 Professional Conduct Hr M $105 | NM $150 | P $0 Speakers: Matthew R. Jenkins and Ted Lienesch

Ethics Case Law Review and New Advisory Opinions (video replay) Friday, December 21, 2018 1:00pm - 4:15pm | 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

Wednesday, December 5, 2018 1:00pm - 4:15pm 3.0 General Hrs or 3.0 New Lawyer Training Hrs M $105 | NM $150 | P $0

*see page 17 for details Thursday, December 13, 2018 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | P $0 Location: Sinclair Community College, Building 12 Speaker: Judge Dennis J. Langer, Montgomery Cty Common Pleas Ct

Labor and Employment Update

2018 Probate Law Institute (video replay)

Wednesday, December 26, 2018 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

Thursday, December 6, 2018 8:30am - 11:45am | 3.0 General Hrs M $105 | NM $150 | P $0

Workers Comp for the General Practitioner Thursday, December 6, 2018 12:30pm - 3:45pm | 3.0 General Hrs M $105 | NM $150 | P $0

Ethics Case Law Review and New Advisory Opinions (video replay) Friday, December 7, 2018 9:00am - 12:15pm | 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

Federal Practice Update with the Judges *see page 17 for details Tuesday, December 11, 2018 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0 Speakers: Honorable Walter H. Rice, Honorable Thomas M. Rose, Honorable Michael J. Newman, Honorable Sharon L. Ovington, Michael N. Rhinehart and Glen R. McMurry

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Rules of Evidence: Character and Impeachment (video replay)

Dayton Bar Briefs October 2018

Monday, December 17, 2018 9:00am - 4:45pm 5.0 General Hrs + 1.0 Professional Conduct Hr M $215 | NM $300 | P $0

2018 Annual Elder Law Update (video replay) Tuesday, December 18, 2018 9:00am - 4:45pm | 6.0 General Hrs M $215 | NM $300 | P $0

2018 Annual Domestic Relations Institute (video replay) Wednesday, December 19, 2018 9:00am - 4:45pm 5.0 General Hrs + 1.0 Professional Conduct Hr M $215 | NM $300 | P $0

New Lawyer Training Core Components: Professionalism, Law Office Management and Client Fund Management (video replay)

Judge Langer’s Criminal Law Update Seminar (video replay)

Writing for Advocates (video replay) Thursday, December 27, 2018 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

Estate Planning 101 (video replay) Thursday, December 27, 2018 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | P $0

Recent Ethics Violations and the Ethical Perils of Social Media (video replay) Friday, December 28, 2018 9:00am - 12:15pm | 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

Thursday, December 20, 2018 9:00am - 12:15pm 3.0 General Hrs or 3.0 New Lawyer Training Hrs M $105 | NM $150 | P $0

937.222.7902


December 2018 CLE Spotlights

Hot Topic CLE Features and Speaker Favorites! A Civil Trial - Tips from the Pros: Do's and Dont's from the Bench, Cross Examination in a Personal Injury Case and Civil Trial - Tips from the Pros Tuesday, December 4, 2018 | 9:00am - 12:15pm | 3.0 General Hrs Location: Montgomery County Common Pleas Court, Courtroom #4

Agenda: 9:00am-9:15am 9:15am-10:00am

10:00am-10:15am 10:15am-11:00am

11:00am-11:45am

11:45am-12:15pm

Do's and Dont's From the Bench: Judge Steve Dankof and Judge Michael Krumholtz Direct Examination and Cross Examination of a Plaintiff in a Personal Injury Case: Pat Allen and Tom Green BREAK Direct Examination and Cross Examination of a Defendant in a Personal Injury Case: John Smalley and Chris Carrigg Direct Examination and Cross Examination of a Expert in a Personal Injury Case: Will Allen and John Haviland The Effective Use of Technology in Trial: Speakers TBD

Federal Practice Update Tuesday, December 11, 2018 | 9:00am - 12:15pm | 3.0 General Hrs Speakers: Honorable Walter H. Rice, Honorable Thomas M. Rose, Honorable Michael J. Newman, Honorable Sharon L. Ovington, Michael N. Rhinehart Esq. and Glen R. McMurry Esq.

Agenda:

9:00am-10:00am 10:00am-10:45am 11:00am-11:45am 11:45am-12:15pm 12:15pm

Year in Review of the U.S. District Court (Dayton): Honorable Walter H. Rice, Honorable Thomas M. Rose and Honorable Michael J. Newman U.S. Supreme Court Review: Honorable Sharon L. Ovington Federal Civil Procedure Update: Honorable Michael J. Newman and Michael N. Rhinehart Esq. The Basics of Multidistrict Litigation (“MDL”): Glen R. McMurry Esq. ADJOURN

Judge Langer’s 2018 Criminal Law Update Seminar Thursday, December 13, 2018 | 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | P $0 Location: Sinclair Community College, Building 12 Speaker: Judge Dennis J. Langer, Montgomery Cty Common Pleas Ct Judge Langer will survey US and Ohio Supreme Court and appellate decisions. Topics may include: search and seizure, confessions, pretrial identifications criminal offenses, pretrial procedure, rules of evidence, trial procedure, sentencing, and CCS revocation.

26th Annual Intellectual Property for General and Corporate Practitioners Thursday, December 21, 2018 | 9:00am - 12:15pm 3.0 General Hrs, including 1.0 Professional Conduct Hr or 3.0 New Lawyer Training Hrs M $105 | NM $150 | PP $0 Speakers: Matthew R. Jenkins Esq., Jacox Meckstroth & Jenkins and Ted Lienesch Esq., Thompson Hine

Agenda: 9:00am 11:00am 11:15am 12:15pm www.daybar.org

Patents, Copyrights and Trademarks for the General Practitioner Break Ethics Issues Involving Intellectual Property Adjourn October 2018 Dayton Bar Briefs

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DBA CLE SPOTLIGHT

Are you Prepared for a Cybersecurity Breach? The Lawsuit that Follows? The Top 5 Precautions Every Business Should Take

By Lindsay M. Johnson Esq. Freund, Freeze & Arnold A Legal Professional Association

C C

ybersecurity data breaches are an imminent threat to businesses of all sizes. Experts insist it is not a matter of if your business will hacked, but when, and to what extent. Small and mid-sized businesses are particularly at risk. This applies to law practices -firms and solo practitioners, alike. Complying with the latest cybersecurity standards of care will ensure businesses stay ahead the costly financial and legal ramifications of a data breach. These top 5 tips will help ensure businesses of all sizes manage legal and financial risks inherent in cybersecurity breaches.

Precaution 1: Have you prepared for a breach?

All businesses, regardless of size, must develop an action plan in the event of a breach. A working plan is vital and requires regular reevaluation as new threats develop. A working plan allows for an efficient and prompt response, decreasing overall costs of the breach. Time is money, and a plan without practice is not a viable one. Drafting an incident response plan takes critical thought and must be practiced and updated. Critical components of such a plan include identification of the types of data stored, where it is stored, and the configuration of servers and data storage.

Precaution 2: Have you conducted employee training and implemented policies and procedures?

A business’s own personnel is a cybersecurity threat, despite perceived loyalty. Businesses must implement training programs and develop cybersecurity policies and procedures in order to comply with applicable standards of care. Unsuspecting individuals fall victim to “phishing” emails or malware infiltration. In some cases, personnel maliciously enable a breach or divert law firm laptops or thumb drives which contain sensitive information. Ensuring only appropriate personnel have access to sensitive company data and implementing supervision as well as training on security measures is crucial.

Precaution 3: Have you considered BYOD (“Bring Your Own Device”) Risks?

The use of mobile devices in the workplace increases cyber threats exponentially. Despite this, companies are only beginning to protect against infiltration through mobile devices. A majority of the businesses still permit employees to download unregulated apps on company devices, leading to malware infiltration of private

continued on page 19

The seminar:

Introduction to Cybersecurity: Standard Care for Lawyers and Their Clients Wednesday, November 14, 2018 12:00pm - 1:00pm | 1.0 General Hr M $35 | NM $45 |P $0 Speaker: Lindsay M. Johnson,

Freund, Freeze & Arnold, A Legal Professional Association

Agenda: Discussion of current cybersecurity attacks and trends, noteworthy case law, and cybersecurity standards of care for lawyers and their clients.

to register: daybar.org/cle 18

Dayton Bar Briefs October 2018

937.222.7902


DBA CLE SPOTLIGHT: Are You Prepared for a Cybersecurity Breach continued from page 18 information. Businesses must use programs to encrypt and protect mobile devices and develop “BYOD” mobile device policies to ensure personally identifiable information (PII) remains secure. These programs often require the user to agree to installation of encryption software on the device if the user wishes to send and receive email, etc. on the device. This is the standard of care and is especially important for businesses operating in the financial, legal, or medical spaces. In addition to the common law duty to protect a client’s confidential information, attorneys must also comply with Rule 1.6 of the Rules of Professional Conduct. Attorneys are required to maintain the confidentiality of client information, which includes any information electronically stored. Further, Rule 1.15 requires attorneys safeguard client property. Attorneys must also comply with all state and federal laws concerning breach notification, including R.C. 1349.19, Ohio’s security breach notification law, which applies to breaches or unauthorized access of Ohio residents’ PII.

Precaution 4: Do you have cybersecurity insurance?

There is a growing trend of insurance companies providing cybersecurity policies to assist with what can be debilitating costs of a data breach. Obtaining “reasonable” cybersecurity coverage is quickly becoming the standard of care in this area depending upon the type of information the business possesses. Insurance can help mitigate some of the monetary burdens following a data breach, but it is never a substitute to developing a working response plan. An attorney well-versed in cybersecurity law can work closely and effectively with the business’s broker to ensure proper coverage and understanding of the exclusions from such policies.

Precaution 5: Have you considered your use of third-party suppliers?

R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459

Professional Investigative and Legal Support Services Firm  Polygraph  Asset Searches  Criminal Defense  Process Service  Witness Locates / Interviews  Surveillance  Civil Case Prep  General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

Businesses, including law firms, often overlook risks associated with the use of third-party vendors. Vendors that have access to a business’s internal processes, such as POS systems, data storage, or other programs containing sensitive data can subject a business to liability for failing to take precautionary measures to prevent data breaches. For this reason, businesses must seek protection not only by contract, but through close monitoring and regular inspection of its vendors. This includes reviewing agreements and examining vulnerabilities of existing vendors. While the legal standards of care in cybersecurity law are dynamic and less-than certain, we have learned some valuable information from recent cases involving large-scale breaches. Failing to appreciate and comply with current standards of care may result in liability and will certainly increase the cost associated with breaches.

www.daybar.org

October 2018 Dayton Bar Briefs

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FROM THE JUDGES DESK

Annual Pro Bono Checklist for Attorneys

By Hon. Mary L. Wiseman Montgomery County Common Pleas Court

TT

he month of October holds special meaning for attorneys and judges, because our profession uses this month to celebrate and encourage the pro bono representation of the economically disadvantaged and others needing free legal assistance. This professional commitment to volunteering sets our field apart from others. Pro bono work satisfies our drive to help others in need and brings goodwill to our profession. Most importantly, pro bono representation helps our legal system work as planned. Just as we keep maintenance schedules for our cars and homes, October is an ideal time for attorneys to perform a pro bono checklist. Here are five points to evaluate annually to keep your pro bono efforts on track:

1. Contact the Greater Dayton Volunteer Lawyers Project.

Go to GDVLP’s website (gdvlp.org) or call (937-461-3857) to register for pro bono opportunities. As a bonus, you may even earn free CLE credits.

2. Accept Pro Bono Opportunities Within Your Practice Area.

Are you a corporate lawyer because you hate public speaking ? Did you enter into an IP field because you never want to cross the threshold of a courthouse? Never fear, ample pro bono opportunities await. No matter your field of practice, the need for your services is great. Pro bono is not confined to those attorneys that enjoy spending time in a courtroom. GDVLP can link your skills and preferences to appropriate clients and settings.

3. Consider Pro Bono Opportunities Outside of Your Usual Practice Area.

I encourage every lawyer to at least entertain the idea of accepting pro bono cases that may fall outside of your usual field of practice. GDVLP has extremely well trained and professional staff to assist you. GDVLP also can provide mentoring and training to you. While the thought of doing something unfamiliar may cause trepidation, embracing that challenge can also bring great professional growth and personal satisfaction. Notably, the pro bono client may have no other option, unless he or she proceeds pro se. No matter how uncomfortable you may feel in a new area of law, you will be 1000% more effective than a lay person attempting to navigate our legal system.

4. Encourage Other Lawyers to Engage in Pro Bono.

Our legal community embraces and actively supports pro bono. Spread that message far and wide. Begin conversations with non-lawyers and lawyers about your pro bono service. Encourage and support new members of the bar to volunteer.

5. Contribute Financial Support for Pro Bono.

The organizations that facilitate pro bono, such as GDVLP, operate on shoestring budgets. In addition to your talent, they need your treasure. By generously contributing financially to the annual Access to Justice campaign, you support the necessary infrastructure integral to our vibrant pro bono system.

By assessing these five points every October, every attorney can optimize his or her pro bono participation. Doing so is self-rewarding, but also greatly benefits our profession and justice system.

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Dayton Bar Briefs October 2018

Did You Know?

te October is Celebra . Pro Bono month Get involved!

ono.org b o r p e t a r b le e c

937.222.7902


You Could Sponsor This Year's Bench Bar Conference! DAYTON Bar Association

2018 Bench Bar Sponsorship Opportunity! Increase the visibility of your organization among the Southwest Ohio legal community by sponsoring a DBA CLE or Event.

s DBA CLE & Event Sponsorship

The Dayton Bar offers over 350 hours of continuing legal education programming per year attended by more than 2,000 legal professionals. Topics include substantive legal updates in probate, estate planning, real property, family law, and other areas, as well as marketing, technology, professionalism and ethics. • Bench Bar Conference • Probate Law Institute Jennifer Otchy • Diversity Day jotchy@daybar.org • Domestic Relations Law Institute 937.222.7902 • Many other CLE programs…inquire to sponsor!

Register as Sponsor Today!

www.daybar.org/sponsorshipopportunities

www.daybar.org

October 2018 Dayton Bar Briefs

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FROM THE JUDGES ABLE/LAWO NEWS DESK

Coming Up... Access to Justice Awards Celebration! Don’t miss this opportunity to attend the 2018 Access to Justice Awards Celebration! The event will be held Thursday, November 1st, from 5:30pm-8:00pm at the Sinclair Community College Conference Center. Recipients of the Lloyd O’Hara Public Interest Law Award, Patricia Rousseau Community Advocacy Award, Community Impact Award and Distinguished Service Award will be announced that evening. Proceeds from the event will be used to provide civil legal services to low-income individuals of the Greater Dayton Area to help them overcome crises and stabilize their lives. The event will benefit the Greater Dayton Volunteer Lawyers Project (GDVLP) and the nonprofit law firms of Advocates for Basic Legal Equality, Inc., (ABLE) and Legal Aid of Western Ohio, Inc., (LAWO), which represent thousands of residents each year. “This is a wonderful opportunity to show your support for these organizations,” says Sean McCormick of Thompson Hine LLP and event co-chair along with his wife Elizabeth McCormick of the Clark County Prosecutor’s Office. “ABLE, LAWO and the GDVLP help people who otherwise would go without any legal representation when facing domestic violence, potential loss of their homes, challenges of disability and health care concerns, and assist with the legal rights of immigrants, agricultural workers and refugees.” “Please come out and share in this occasion and help to ensure fairness and justice for all, no matter their income,” says Elizabeth McCormick. The event is an upscale reception with entertainment, heavy hors d’oeuvres, and a cash bar. Business attire is suggested. Sponsorships, ads and tables are available. Law firms will be credited at sponsorship levels for their total giving to the annual campaign. Individual guests may register for the gala via: visit: www.campaign4equaljustice.org/a2j-2018 email: kharshaw@ablelaw.org call: 937.535.4432 Tickets are $150 Grand Patron and $100 Patron. The deadline for reservations is Friday, October 26th

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Dayton Bar Briefs October 2018

937.222.7902


The Supreme Court of Ohio By Chief Justice Maureen o'Connor

The Hidden Disaster of State Issue 1 TT

oo many people in our criminal justice system are there because of substance abuse disorders. This is undeniable. We know that substance abuse disorders are a major driver in criminal justice spending. We also know that through long-term treatment and therapy, those addicted can lead law-abiding, productive lives. Issue 1 on Ohio’s November 6 ballot purports to address this problem by reducing drug possession penalties and directing the savings from reduced incarcerations to expanded drug treatment and resources for crime victims. A superficial reading of Issue 1 could lead voters to see it as a thoughtful, compassionate, and reasonable response to a difficult and intractable problem. It seems so, until you peel back its layers and see that it will have catastrophic consequences for our state. If Issue 1 passes, Ohio may have some of the most lenient drug crime laws in the nation. We could easily become a magnet for substance abuse activity because there will be, in effect, very little consequence to engaging in such behavior. Let me put the issue in context by explaining just one of Issue 1’s consequences as it relates to possession of fentanyl, a lethal opioid. According to the Ohio Department of Health (ODH), drug overdose (poisoning) deaths in Ohio increased from 3,050 in 2015 to 4,050 in 2016. This is roughly four times the number of people who die in traffic accidents in Ohio annually. The ODH reported that 58.2 percent of the overdose deaths in Ohio in 2016 involved fentanyl compared with only 4 percent in 2013. This dramatic rise is due to the fact that fentanyl is 50 times more potent that heroin. According to the U.S. Drug Enforcement Administration, it takes just 2 milligrams of fentanyl – an amount barely able to cover Abraham Lincoln’s beard on a penny – to kill the average person. Fentanyl is addictive, lethal, and simple to manufacture. It is easy to smuggle into our country from foreign sources, even using express mail envelopes. Its potency is not just a problem for abusers. It can be absorbed through the skin, putting freight handlers and first responders at serious risk. Issue 1 would make the possession of powdered fentanyl in amounts less than 20 grams a misdemeanor with only probation as the consequence. This means that a drug offender caught with less than 20 grams walks away with no possibility of jail time. Since the lethal dose of fentanyl is just 2 milligrams (one-thousandth of a gram), 19 grams of fentanyl is enough to kill approximately 10,000 people. So if Issue 1 passes, an offender charged with possession of 19 grams of fentanyl would automatically get probation and could only be charged with a misdemeanor. Issue 1 does this by constitutionally dictating that any drug possession conviction that is now a Felony 4 or Felony 5 would be reduced to a misdemeanor. The requirement of probation ties the hands of the judge when it comes to sentencing. The judge MUST sentence an individual to probation for these offenses under Issue 1. This is unconscionable. Drug dealers would be incentivized to distribute fentanyl in amounts less than 20 grams so those caught possessing it would avoid incarceration. The lack of consequences for fentanyl possession is shared with possession of other lethal drugs -- cocaine, K2, meth and heroin www.daybar.org

among them. Across the range of illegal substances, many current felonies would become misdemeanors. Who wouldn’t want to set up their drug distribution business in Ohio knowing that possessing 19 grams of fentanyl or lethal amounts of other drugs would result only in a first class misdemeanor with mandatory probation? The adoption of Issue 1 would, I predict, have another devastating consequence: Severely hampering the use of our very effective drug court programs across this state. Drug courts would be impeded by taking jail time off the table. We know, through multiple studies, that drug courts are effective only when they combine the “carrot” of treatment and support with the “stick” of judicial accountability, including incarceration when needed. It is this carrot-and-stick approach that enables judges and drug court teams to use a variety of tools to help people overcome addiction. But Issue 1, while providing a lot of carrots by expanding treatment, takes away the stick. We are not talking about possession of marijuana. We are talking about Ohio becoming, in effect, unable by its constitution to offer drug court participation and to incentivize that involvement by the “carrot” of not having a felony conviction record. Who would want to participate in a drug court program knowing that they only face probation for possession of fentanyl, cocaine, methamphetamine, K2, heroin, and so forth? I predict that we will see a severe drop-off in drug court participation at the very moment when it is needed most should voters approve Issue 1. To make matters worse, Issue 1 would freeze our criminal drug offense laws in time. It expressly mandates that its provisions be implemented based on the laws in effect on January 1, 2018. Our General Assembly couldn’t, by passing a statute, fix all that is wrong with Issue 1. Our elected leaders could not pass laws to contradict Issue 1 -- laws meant to keep us safe. Another constitutional amendment would be necessary to repeal or modify the Issue 1 constitutional amendment. This would take another statewide election. Keep in mind that special interest groups spent more than $4 million to put Issue 1 on the ballot. Those same special interest groups will fully fund a campaign before this November’s election that will try to mislead and confuse you regarding Issue 1. Please don’t be fooled. Do your homework on Issue 1. The proponents of Issue 1 seek to address a very real problem in our criminal justice system: the impact of substance abuse on our society and our criminal justice system. But by taking a hammer to that problem, the proponents have set Ohio on a dangerous course to adopting some of the most lenient drug laws in the country. It would limit the ability of the state to confront very real dangers, now and in the future, in battling substance abuse. Issue 1 may be well-intentioned in design, but its passage would gravely endanger Ohioans. It would be devastating in effect.

October 2018 Dayton Bar Briefs

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DBA RISING STAR

DBA Rising Star Robert H. Hollencamp Esq.

R R

obert H. Hollencamp never questioned whether he would be attorney. He knew his path since he was a young boy when his father and local attorney, the late Art Hollencamp, carved his fate into stone. As a third generation Dayton attorney, Robert learned how to practice law from his time at Hollencamp & Hollencamp, where he began learning the family business in law school as a law clerk. Although Robert ultimately knew that he would be a lawyer, it was up to him to follow the path that his father paved for him. As a native Daytonian, Robert is a true Dayton Flyer. He graduated from the University of Dayton in 2005 and continued on to the University of Dayton School of Law, where he obtained his Juris Doctorate in 2008. During basketball season, Rob’s red and blue colors shine in the office and in the stands at UD Arena, and his free time is spent cheering on the Dayton Flyers and spending time with his wife and son. Robert immediately started working as an associate for Hollencamp & Hollencamp after

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Dayton Bar Briefs October 2018

law school and learned the practice of law with hands on training from the best – his dad and mentor, Art. As a colleague of Robert’s, I sometimes feel like I was right there with him as he learned from his mentor. Then, I realize it is only because Robert trains me in the same ways that he was trained by his dad. There are days when he will walk into my office and say, “Hey Rook! (Rookie) Tell me what is wrong with this Complaint. What is this motion missing? What claims need to be added to this?” Even though he already may know the answer, he puts me on the spot to see if I know or can efficiently figure it out. If I don’t know, then he explains the correct answer to me. Then, when he is done, he might tell me a story about how his father would give him pop quizzes or redline an entire Motion until he had it right. From the pop quizzes and redlined motions, I learned that quality of work is incredibly important to Robert Hollencamp – something that all lawyers should strive for. There is a quote by Orison Swett Marden that sets forth

Robert’s outlook as an attorney: “The quality of your work, in the long run, is the deciding factor on how much your services are valued by the world.” Not only is Robert an incredibly hard worker, he is a smart worker. He takes pride in producing good quality work, he takes pride in getting the best result for his clients, but more importantly, he takes pride in the work that it takes to achieve good quality and success for his clients. It is no secret that his services are truly valued by his clients. Robert has been with the law firm Pickrel, Schaeffer & Ebeling since February 2015. With ten years of experience, Robert is in the firm’s Litigation Department and focuses his practice in collections, civil litigation, receiverships, bankruptcy, and foreclosures, among other areas within civil matters. A significant portion of Robert’s practice includes collections, which often involves investigating assets

continued on page 25

937.222.7902


DBA RISING STAR: ROBERT H. HOLLENCAMP ESQ. continued from page 24 and aggressively pursuing all avenues for recovery. Again, this is where his smart, quality work leads to success for his clients, and often for other clients of the firm. Matthew Sorg, a partner with Pickrel, Schaeffer & Ebeling likes to use the phrase: “We will put a Hollencamp on them!” Which ultimately means that Robert will diligently work to investigate the assets of the debtor or defendant so our client can recover the amount he or she is entitled to. For many years and for many people in the Dayton legal community, to “put a Hollencamp on them” usually meant a phone call to Art Hollencamp. Robert often talks about the legal and nonlegal lessons that Art taught him over the years. Continuing to follow in his father’s footsteps, Robert passes down those important lessons to those in the office, and we always listen because we see how they have shaped him as a lawyer and as a person. Robert is a member of the Carl D. Kessler Inn of Court and continues to serve as a successful litigator in Dayton. This community is fortunate to have generations and generations of great, hard working lawyers that are so dedicated to the practice of law, dedicated to their quality of work, and dedicated to their clients.

DAYTON Bar Association

Trust

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

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

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

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

www.daybar.org

October 2018 Dayton Bar Briefs

25


THE DAYTON FOUNDATION

the dayton foundation

Help Clients Find Their ’Light Bulb’ Moment in Charitable Giving By Michelle L. Lovely, Vice President of Development, The Dayton Foundation

YY

ou know the feeling – that unforgettable “aha” moment of realization when discovering a solution to a complex or perplexing dilemma. For many Dayton Foundation donors, opening a Charitable Checking AccountSM was their light bulb moment in helping to solve their charitable giving and tax reporting needs. A Charitable Checking Account (CCA) is a free, easy-to-use vehicle for charitable giving that works for individuals, families, companies and not-for-profit organizations. It operates much like a personal checking account, in that you deposit assets and then direct the Foundation to send contributions to any IRS-approved charities you choose – locally, nationally and even internationally. You make the decisions, and The Dayton Foundation does the work. But what about situations when you may want to do something other than just write a check? The following are three examples of such situations that may sound familiar to you when working with your clients.

1. “I want to create a nonprofit organization, but I don’t know where to start.”

Serving the greater good can be accomplished in many ways, but starting a 501(c)(3) IRS-approved charity can be costly, not to mention an administrative nightmare. If your client is thinking of launching a nonprofit, you may want to suggest opening a CCA through The Dayton Foundation instead. Under the Foundation’s charitable tax-exempt status, your client can solicit tax-deductible donations for a CCA at the Foundation, then award grants to organizations that meet his or her charitable intent. Once the CCA’s balance has grown to $25,000 or more, the donor can elect to move the assets into an invested fund through the Foundation where it will earn interest while growing the principal for long-term use. The CCA Service also is a good option for existing nonprofit organizations that want to start or grow an endowment and may not have the capabilities to accept complex gifts, such as stocks or other non-publicly traded assets. The Dayton Foundation can do this, plus we provide a tax receipt to the donor at the time the gift is received, which reduces your client’s paperwork. We also provide an option for donors to give online via credit card.

2. “I had a great financial year, but I know my taxes are going to be sky high.”

For individuals who need tax deductions and make regular gifts to charity, the CCA Service is an excellent option. Your clients can “park” charitable funds in a CCA in one year, then disperse to charitable organizations when 26

Dayton Bar Briefs October 2018

the time is right for them. It can be especially effective for clients who have highly appreciated securities. By transferring the securities to The Dayton Foundation before they are sold, your client gains the full value of the asset for charitable purposes, avoids paying long-term capital gains taxes on the increased value and deducts the full amount based on the current fair market value.

3. “I want to establish a private foundation to perpetuate my family’s charitable legacy.”

Private foundations are a great community asset and are an ideal solution for some philanthropic clients. However, just like launching a new nonprofit, starting a private family foundation also has a multitude of administrative requirements and expenses. Unlike private foundations, CCAs are not required to spend 5% annually. Also, tax returns and the record keeping required by the IRS are handled by The Dayton Foundation, so your client can concentrate on his or her charitable giving. Donors can name their CCAs as a beneficiary in an estate plan and designate family members or friends to serve as current or successor advisors to distribute grants to charity on your behalf. If your client likes the prestige associated with starting a charitable foundation in his or her family name, the Foundation offers the option to open a CCA in the name that he or she chooses. We’ll also award grants anonymously, if preferred. There’s no minimum dollar amount required to open a CCA, and donors can maintain a CCA with any balance that’s comfortable to them.

Other Benefits

As a person who uses the CCA Service for my own personal giving, I like knowing that I don’t have to concern myself with added paperwork and record keeping. All I need to do is fund my account and decide which charities I want to receive grants. The Dayton Foundation’s knowledgeable staff will verify the charitable status of my chosen organizations, transfer my gift and record all the transactions with quarterly and year-end statements. I also can do my family’s giving online or from a mobile device, any time of the day or night. If you or your clients haven’t used the Charitable Checking Account Service, I recommend that you give it a try and discover your “light bulb” moment in making charitable giving easier.

937.222.7902


www.daybar.org

October 2018 Dayton Bar Briefs

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law-related organizations Dayton Bar Association Foundation

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

- Greater Dayton Volunteer Lawyers Project - Advocates for Basic Legal Equality (ABLE) - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Law & Leadership Institute - Tejas K-12 Gallery - NCCJ Police and Youth Camp - Wills For Heroes

To obtain more information about the Dayton Bar Association Foundation

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

University of Dayton School of Law

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Greater Dayton Volunteer Lawyers Project

Celebrate

PRO BONO

October Inn of Court Open to DBA Members as Celebrate Pro Bono Event! T T

he American Bar Association has designated October 21st through 27th as national Celebrate Pro Bono Week. As you may know, the Greater Dayton Volunteer Lawyers Project (VLP) uses Celebrate Pro Bono Week as an opportunity to find a meaningful way to thank the many dedicated lawyers, law school students, and others in our community who volunteer their time, talent, and treasure to the VLP. In order to celebrate pro bono representation and encourage the continued involvement of the legal community in these efforts the VLP, in conjunction with Inn of Court, will be hosting an event at the Sinclair Community College Ponitz Center on October 23rd during the regularly scheduled meeting of Inn of Court. With generous funding from the Eichelberger Foundation, VLP and Inn of Court are inviting the broader Dayton legal community to join the meeting. From 5:30-7:30pm, we will host a networking reception and dinner, followed by a presentation by Chief Justice Maureen O'Connor of the Ohio Supreme Court. During this event, we hope to bring the community together and have a dialogue about how together we can through Pro Bono, help meet the legal needs of low-income individuals in our community. If you are not an Inn of Court member and wish to attend this FREE event, please RSVP to Kelly Henrici, Executive Director of the VLP, at (937) 461-3857 or Kelly@gdvlp.org. Inn of Court members should RSVP in the normal course. We hope you can join us!

www.daybar.org

October Inn of Court Special Guest Speaker: Chief Justice Maureen O'Connor Ohio Supreme Court

October 2018 Dayton Bar Briefs

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DAYTON Bar Association

members on the move

MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received a promotion or award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted online: https://www.daybar.org/MembersOnTheMove and are subject to editing. Also, please send a current, high-resolution, directory-style photo to accompany your announcement. These accouncements are printed as space is available. If you have questions, contact DBA Communications Manager, Shayla M. Eggleton: publications@daybar.org.

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classifieds For info concerning Classified Ad and Display Ad Space in the Dayton Bar Briefs or any other DBA Publication (Discount Rates available!), contact DBA Communications Manager, Shayla M. Eggleton: publications@daybar.org.

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

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

OFFICE SPACE 1204 East Dorothy Lane: Four offices available at $500/month/office. Furnished or unfurnished. Take one, two, three or four offices. Rent includes all utilities, two remodeled baths, secretarial area, reception area, conference room; about 2400 sq. ft. Email dave@SchmidtDayton. com for info and pics.

OFFICE SPACE FOR LEASE Professional office space for lease on South Dixie, south of Dorothy Lane. Great location, convenient parking, large conference room, generous lease terms, other amenities. Offices are about 120 sq ft in size, starting at $400.00 per month. Contact Greg at (937) 294-2468 x205 or greg@ranac.com.

STUNNING OFFICE SPACE AVAILABLE

Local law firm looking to share existing office space. Class A, 4 offices with 2 conference rooms. Phone and internet included, collaboration on Administrative resources available. Fairfield Commons, second floor. Contact Holly Potter 614.737.2900

www.daybar.org

October 2018 Dayton Bar Briefs

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

PRSRT STD U.S. POSTAGE PAID CLEVELAND, OH Permit No. 362

Profile for Dayton Bar Association

October 2018 Dayton Bar Briefs Magazine  

The official publication of the Dayton Bar Association.

October 2018 Dayton Bar Briefs Magazine  

The official publication of the Dayton Bar Association.

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