Dayton Bar Briefs Magazine: Sept/Oct Vol. 74 No. 1

Sept/oct 2024

BarBriefs

The Off icial Magazine of the DBA

2024-2025 DBA President

United States District Judge

Michael Newman president'S MESSAGE Civics and Civility pg 4

50 year honoree luncheon

barrister OF THE MONTH

Celebrate those in practice since 1974

Margaret "Peg" Foley

pg 6

pg 8

BarBriefs DBA Board of Trustees 2024-2025 Hon. Michael J. Newman President

Jamie H. Greer First Vice President

Jeff T. Cox Second Vice President

Erin E. Rhinehart Secretary

Victoria L. Nilles Treasurer

Jennifer L. Brogan Member–at–Large

Toby K. Henderson

VOL.

74

sept/oct 2024

Member–at–Large

Christopher M. Wolcott

Columns:

4

Civics and Civility

20

Therapeutic Alternatives to Incarceration: Specialized Dockets

PRESIDENT'S MESSAGE

JUDGE'S DESK

By The Honorable Michael Newman | U.S. District Court, Southern District of Ohio

By The Honorable Angelina Jackson | Montgomery County Common Pleas Court

Features:

8

BARRISTER

10

APPELLATE LAW

Member–at–Large

Anne P. Keeton Immediate Past President

John M. Ruffolo, ex officio

Margaret "Peg" Foley Esq. Dayton Children's Hospital Foundation

By Morgan Napier Esq. | Faruki PLL

I Lost the Appeal, Now What?

An Overview of Postjudgment Practice following an Adverse Appellate Decision

By Nathaniel M. Fouch Esq. | Supreme Court of Ohio

12

UD Law School Celebrates 50 Years!

14

Artificial Intelligence, Real Liability: Who’s on the hook when things go wrong?

By Jordan Burgess, Director, Communications & Marketing | UDSL

Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

B A R B R I E F S i s p u b l i s h e d by t h e Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the DBA office. The DAYTON BAR BRIEFS is published September/October through May/June.

Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy Chief Executive Officer Shayla M. Eggleton Director, Communications & Membership Phone: 937.222.7902 www.daybar.org The contents expressed in the publication of DAYTON BAR BRIEFS do not reflect the official position of the DBA.

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Contents

Member–at–Large

Erin B. Moore

NO.

By Zachary Heck Esq. & JP Jarecki | Taft Law

18

Ashton Hood Esq. Ohio Department of Taxation

22

Children’s Historical Publishing

RISING STAR

SOCIAL JUSTICE

By Nathaniel M. Fouch Esq. | Supreme Court of Ohio

By Magistrate Bonnie Beaman Rice, Ret., SJI, Chair

Also In This Issue: 7 2024-2025 DBA Section Leadership & Meeting Dates 16 October DBA Events Calendar & 2024-2025 Save the Dates 17 Continuing Legal Education 24 Law Related Organizations 27 Members on the Move & Classifieds

PRESIDENT'S MESSAGE

Civics and

By The Honorable Michael Newman United States District Judge Southern District of Ohio 123rd DBA President

Civility Judge Newman administers oath of professionalism to over 130 UD 1Ls

I

am honored and humbled to serve, this year, as the 123rd president of the Dayton Bar Association – a Bar Association that began more than 140 years ago, in 1883. This is a great honor indeed.

Our Bar Association is strong; we have more than 1,400 members who care deeply about the practice of law in the Dayton area; and we have active sections and divisions dedicated to specialty practice areas. Most importantly, we are fortunate to have an executive director, Jennifer Otchy, who cares deeply about the DBA’s success and who, herself, is a wonderful leader with years of Bar experience. I thank Jennifer and look forward to working with her this year. I also thank the DBA staff – including Assistant Executive Director Chris Albrektson, Communications Director Shayla Eggleton, Administrative Manager Lori Luebben, and Bar Counsel John Roffolo and Paul Roderer, Jr. – for their hard work and dedication to the DBA. I look forward to working with each of you, and I thank you, in advance, for your selfless dedication to our legal community.

It is a great honor to be part of the long line of DBA presidents going back more than 100 years.

In the recent past, these presidents have included, among many distinguished others, Charlie Faruki, David Greer, Judge Caroline Gentry and Judge Mary Donovan, all of whom are dear friends.

It’s also an honor to serve with my fellow judges every day, whom I respect very much – Judges Walter Rice, Thomas Rose, Peter Silvain, Jr., Caroline Gentry, Michael Merz and, in the U.S. Bankruptcy Court, Judge Guy Humphrey.

I’m proud to be in Dayton and to be part of the Dayton legal community. As many of you know, I moved here with my family (from Cincinnati) in 2011 to become a U.S. Magistrate Judge. Dayton 4

DAYTON Bar Briefs | sept/oct 2024

is charming. I affectionately call the legal com- federal judge working together this way has never munity here “Mayberry.” Lawyers are gracious to been done before in the United States. Colorado one another. They are kind. Through the DBA’s has had state and federal judges working together to monthly “Chancery Club” – started by Judge Dono- meet with adults; I don’t think there has ever been van - we break bread and eat lunch together. We a program for state and federal judges to regularly talk about civility, and we act civilly to one another. meet with students in this way. So, of course, this We mean it. will happen first in Dayton – a city of innovation In that vein, the DBA will focus this year on and many firsts.

Civics and Civility.

In the President’s Message going forward, you Civility: We will talk about it and act on it. will see photos of these school visits. I invite you We will work to keep the same sense of kindness to join with me this year, and I look forward to and compassion in what we do. We will mentor working with you all. newer lawyers so that the Dayton legal community I thank you for your support, and thank you for maintains the same civility going forward. this great honor. I am honored to serve, this year, Civics: My plan is for a federal judge and as your DBA President. a state judge, together, to go into local schools, every month, to meet with students and talk to them about the courts and what we do every day. My desire is to continue this civics effort not only during my year as president, but in the years to come.

The hope is, by meeting with both a state and federal judge, students will not only understand the court system better, they will have more faith in the system – that it’s fair; that we take due process seriously; and that there Judge Newman, his wife Rachel, and hig is access to justice. h school triplet daughters Anna, Br igid and Clare on To my knowledge, the a recent trip to Asheville, North Ca rolina. idea of a state judge and a

2024-25 DBA Board of Trustees Our Vision

We aspire to have all citizens of our community respect and understand the role of lawyers, the legal system, and the administration of justice.

Our Mission

The DBA furthers the administration of justice; enhances the public’s respect for the law; and promotes excellence and collegiality in the legal profession.

2024-2025 Board swearing in at the Annual Meeting held on May 14th.

Hon. Michael J. Newman

Jamie H. Greer

Jeff Cox

Erin E. Rhinehart

President

First Vice President

Second Vice President

Secretary

Victoria Nilles

Jennifer Brogan

Toby Henderson

Erin R. Moore

Treasurer

Member-at-Large

Member-at-Large

Member-at-Large

Christopher Wolcott

Anne P. Keeton

John M. Ruffolo, ex officio

Jennifer Otchy, ex officio

Member-at-Large

Immediate Past President

Bar Counsel

Chief Executive Officer

sept/oct 2024 | DAYTON Bar Briefs

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Register online: www.daybar.org

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DAYTON Bar Briefs | sept/oct 2024

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Margaret "Peg" Foley P

eg Foley has dedicated her career to serving her community. A Cincinnati native, Peg earned her degree in criminal justice and psychology from the University of Cincinnati before receiving her Masters in Public Administration from The Ohio State University.

From there, Peg spent a few years in Washington D.C. learning the inner workings of various regulatory agencies as a member of the Presidential Management Intern Program. While in this role, Peg was encouraged to apply to law school by a teammate on her volleyball team.

The University of Virginia School of Law gained a new student not long after, and Peg's career in law began as a law clerk for the U.S. Sixth Circuit Court of Appeal's Honorable Pierce Lively.

After completing her clerkship with one of the highest courts in the country, Peg returned to Ohio. This time, she settled in Springfield.

Pursuing her passion for helping children, Peg began her career as an associate with Cole Acton Harmon and Dunn, where her primary practice was focused on family law. Determining that she was not a litigator, she soon left the firm and served as a hearing officer with the Clark County Child Support Enforcement Agency while teaching at Catholic Central High School and Clark State University. While in this dual role, Peg was recruited by Security National Bank (now Park National Bank) to take on a role in their regulatory department. When a position opened in their Trust & Investment Department, it seemed like a natural fit for Peg. Peg went on to have a 26-year career with Park National Bank. Peg enjoyed this role because she was able to use her

natural problem solving and people skills to develop relationships with families (often several generations within the same family) and help them reach their estate planning goals. She also formed meaningful relationships with her colleagues, such as Dan O'Keefe, who served as a mentor to her.

While with Park National Bank, Peg served on the Planned Giving Advisory Committee of the Dayton Children's Hospital Foundation, which led her to her "encore" career as a Gift Planning Manager with the Foundation. Peg has enjoyed learning the world of philanthropy and assisting donors in their gifting so that the hospital can continue to serve children and families in the Greater Dayton area. She credits Jena Pado and Lindsay Ackley for their leadership and guidance in connecting the Foundation with the community to ensure the continued success of Dayton Children's Hospital.

Since settling in Springfield in 1990, Peg has worked to leave her mark and has undoubtedly made the community better for it. Not only has Peg served on several boards – Springfield Peace School, Elderly United, Community Hospital Independent Endowment Fund, Big Brothers Big Sisters, Clark County Bar Association, Neighborhood Housing Partnership, Rocking Horse Community Health Center, Champaign Aviation Museum, Ridgewood School, and Springfield City Planning Board – but she has also served as a CASA volunteer, as a Big Sister, and was a coach for youth sports.

Continuing to pursue her passion for helping children, Peg was recently elected to serve on the board for the Springfield City School District.

In her down time, Peg enjoys walking and working in her garden.

She also enjoys spending time with her husband and four children.

As her children are now young adults living in Springfield and Columbus, she delights in helping them become more independent as they embrace the next chapter in their own lives.

By Morgan Napier Esq. Editorial Co-Chair Faruki+ PLL mnapier@ficlaw.com 8

DAYTON Bar Briefs | sept/oct 2024

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APPELLATE LAW

I Lost the Appeal, Now What?

An Overview of Postjudgment Practice following an Adverse Appellate Decision

By Nathaniel M. Fouch Esq. | Chair, Editorial Board | Supreme Court of Ohio | nathaniel.fouch@sc.ohio.gov

O

ver a hundred years ago when the last Ohio constitutional convention convened, the delegates had judicial efficiency on their minds.

Disgruntled with a court system that was perpetually behind on its work and which encouraged endless relitigation of cases, it became “the slogan of the convention” that “all ordinary cases were to have a single trial and one review.”1 Despite the delegates’ best efforts to make the judgment of the court of appeals final in the majority of cases, there remain several procedures by which attorneys can continue litigating a case even after a cli-

ent loses on appeal. This article is primarily intended for lawyers with limited experience in appellate procedure, especially newer attorneys. Its aim is to provide a brief, high-level overview of six different types of postjudgment procedures—the “tools” in an attorney’s toolkit after an adverse outcome at the court of appeals. While not all of these tools will be appropriate in every case, familiarity with the options will help attorneys select the right one(s) for the right case.

Application for reconsideration discretion to determine whether an intradistrict certify a conflict does not extend the time to file The first tool is perhaps the most basic. Parties conflict exists,” but if “the judges of a court of ap- an appeal to the supreme court.20 The motion must who receive an adverse judgment on appeal can file peals determine that two or more decisions of the “specify the issue proposed for certification” and an application for reconsideration, and the case will court on which they sit are in conflict,” they in fact “cite the judgment or judgments alleged to be in be reconsidered by the same panel that issued the “must convene en banc to resolve the conflict.”10 conflict with the judgment of the court in which original decision.2 But this isn’t just a second “bite An application must explain how the panel’s the motion is filed.”21 The Second District rejected at the apple”; rather than raise new arguments, decision conflicts with a prior panel’s decision on all motions to certify a conflict in 2023 such an application must “call the court’s attena dispositive issue and why consideration by the Application for reopening tion to obvious errors in a decision or must raise court en banc is necessary to “secure and maintain Different in character from the other tools on issues that the court either failed to consider or did uniformity” of the court’s decisions.11 Like an ap- this list, an application for reopening or “Murnahnot fully consider when the original decision was plication for reconsideration, it must be brought an appeal”22 is only available to criminal defendants made.”3 Notably, application for reconsideration within ten days of the date the clerk mails the and—as of July 1, 2024—juvenile delinquents. This can be made for “any cause or motion submitted on judgment, and it can actually be brought at the is a means by which to claim ineffective assistance appeal,” not just a final judgment.4 But in practice, same time as an application for reconsideration.12 of appellate counsel, so while not a tool available to this type of motion is typically made postjudgment. Also like reconsideration, an application for en the attorney who handled the initial appeal, it bears There’s a quick turnaround—an application must banc consideration tolls the time to appeal to the mentioning for the sake of attorneys who acquire be “made in writing no later than ten days after the supreme court.13 If the court grants the applicathe file after a party loses the appeal.23 clerk has both mailed to the parties the judgment tion, the decision of the en banc court supersedes or order in question and made a note on the docket the prior decision and becomes the decision of the ENDNOTES: of the mailing.”5 But a timely application tolls the court.14 The Second District granted no motions 1.

Carrington T. Marshall, A History of the Courts and Lawyers time to appeal to the Supreme Court of Ohio.6 For for en banc consideration in 2023.15 of Ohio 155 (1934). context, in 2023, the Second District granted two Motion to certify a conflict 2.

App.R. 26(A)(1)(c). of the twenty such motions it ruled upon.7 If the court of appeals’ decision is in conflict 3.

State v. Gillespie, 2012-Ohio-2942, ¶ 9 (2d Dist.).

Application for en banc consideration with a judgment “pronounced upon the same ques- 4. App.R. 26(A)(1)(a).

5.

Id. The constitution provides that appeals are tion by any other court of appeals of the state,” a 6.

S.Ct.Prac.R. 7.01(A)(5)(a).

8 16 decided by three-judge panels. Today, all twelve of losing party can file a motion to certify a conflict.

7.

All Second District data was provided by request to the author Ohio’s district courts of appeals have at least five Where the court of appeals grants such a motion, courtesy of Second District Magistrate Erin Scanlon.

8.

Ohio Const. Art. IV, § 3(A). judges, and under App.R. 26(A)(2), a party may it is constitutionally required to certify the record 9.

App.R. 26(A)(2)(a). file a postjudgment application to have its case of the case to the Ohio Supreme Court.17 The su10. McFadden v. Cleveland State Univ., 2008-Ohio-4914, paragraph considered “en banc,” or by the whole court in the preme court must then review the judgments to see two of the syllabus.

11. App.R. 26(A)(2)(b). district. Consideration en banc is “not favored” and whether a conflict exists, and if it finds a conflict, 12. Id. “will not be ordered unless necessary to secure or will order briefing.18 Filing such a motion is an 13. S.Ct.Prac.R. 7.01(A)(6). maintain uniformity of decisions within the district easier way to get a case considered by the supreme 14. App.R. 26(A)(2)(d).

15. Only one application was filed that year and was ultimately on an issue that is dispositive in the case in which court than a jurisdictional appeal, as conflict queswithdrawn. the application is filed.”9 The constitutionality of tions are reviewed at a far higher rate.19 A motion 16. Ohio Const. art. IV, § 3(B)(4); see also App.R. 25(A).

17. Id. this procedure was actually challenged not too to certify a conflict must also be filed no later than 18. Ohio Const. art. IV, § 2(B)(2)(f ); S.Ct.Prac.R. 8.02.

19. See, e.g., Supreme Court of Ohio, 2023 Annual Report, 41–42 long ago. The Supreme Court of Ohio however, ten days after the clerk mails the judgment, but concluded that not only do courts of appeals “have it’s important to remember that filing a motion to 20.(2024).

App.R. 25(A).

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DAYTON Bar Briefs | sept/oct 2024

21.

22.

23.

Id. See State v. Murnahan, 63 Ohio St.3d 60 (1992).

App.R. 26(B)(1).

These applications must be filed “within ninety certified conflict cases discussed above, the most Conclusion days from journalization of the appellate judgment” common reasons for accepting jurisdiction are that Losing at the court of appeals presents except for good cause shown.24 They must contain the case is one of public or great general interest or challenges, but it is by no means the end of a case. assignments of error or arguments in support of one that involves questions arising under the state Knowing the options available and understanding assignments of error that previously weren’t or federal constitutions.32 If the court accepts their different purposes can help attorneys and considered or were considered on an incomplete jurisdiction, it will review and affirm, modify, or parties strategize on the best path forward when record because of the deficient representation.25 If reverse the judgment of the court of appeals. If its faced with such a loss. While none of the six the application is granted, the case shall proceed as judgment rests on “independent and adequate state procedure briefly sketched in this article are on an initial appeal,26 and if the court finds that grounds” such that the United States Constitution granted with great frequency, they remain appellate counsel’s performance was deficient and is not implicated, this is the end of the line. important tools for ensuring justice is done. that the applicant was prejudiced thereby that Otherwise, there’s one final option.

Recourse to the right postjudgment application, deficiency, the court shall vacate its prior judgAppeal to the Supreme Court of the motion, or appeal can, in the right case, make all ment.27 A defendant may simultaneously seek United States the difference in the world to the ultimate supreme court review and apply to reopen the If the Supreme Court of Ohio affirms the outcome. appeal.28 The Second District granted two judgment below or declines to accept jurisdiction, applications to reopen in 2023.29 there’s one last option for advocates faced with an ENDNOTES: Appeal to the Supreme Court of Ohio adverse court of appeals decision: a petition for a 24. Id. The most obvious step after losing at the writ of certiorari from the United States Supreme App.R. 26(B)(2)(c). intermediate appellate level is to appeal to the Court. While this is a longshot—the court grants a 25.

26. App.R. 26(B)(7).

Supreme Court of Ohio. That court is, after all, the mere one percent of such petitions and is less likely 27. App.R. 26(B)(9).

28. State v. Davis, 2008-Ohio-4608, ¶ 5. final arbiter of state law in Ohio. Such an appeal is to grant a petition from a state court judgment33— 29. One of these appeals was ultimately unsuccessful. See State instituted with the filing of a notice of appeal, it is possible. This can happen regardless of whether v. Whitfield, 2024-Ohio-685 (2d Dist.). The other remains pending. See State v. Wood, case no. 22CA0036. which in most cases is due within forty-five days the Supreme Court of Ohio accepts jurisdiction— 30. See S.Ct.Prac.R. 7.01(A)(1)(a)(i).

30 from the entry of the judgment being appealed. indeed, one of the most famous United States 31. Compare, e.g., Ohio Const. art. IV, § 2(B)(2)(a)(ii) and S.Ct.Prac.R. 5.02(A)(1). See also Mark P. Painter & Andrew S. Although the supreme court’s mandatory and Supreme Court decisions, Terry v. Ohio, 392 U.S. 1 Pollis, Ohio Appellate Practice § 8:2 (2023-2024 ed.). discretionary jurisdiction is prescribed by the Ohio (1968), came after the Supreme Court of Ohio 32. See generally Ohio Const. art. IV, § 2.

33.

See Jeffrey S. Sutton & Brittany Jones, The Certiorari Constitution, the court treats most appeals as declined jurisdiction over Terry’s appeal from the Process and State Court Decisions, 131 Harv. L. Rev. Forum 31 34 discretionary. So parties are typically required to judgment of the Eighth District. Just make sure 167 (2018).

34. Terry at 8. file a memorandum in support of jurisdiction to file within 90 days after entry of the Supreme 35. U.S. Sup.Ct.R. 13. describing why the supreme court should hear the Court of Ohio’s judgment.35 appeal. In discretionary appeals, unlike in the

sept/oct 2024 | DAYTON Bar Briefs

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Congratulations 50 Year Anniversay of

UD Law School l opening in

Law Schoo

T

1974!

he whispers about a law school opening at the University of Dayton had been audible for years, but really started to increase in volume in the early 1970s.

UD had once run a law school. It opened in 1922 as a night school and had a fantastic record of its graduates passing the bar exam. In all it produced 173 graduates but closed in 1935 because of financial difficulties related to the Great Depression. The intention had always been to reopen the law school in better times. Now, nearly 40 years after the law school’s closure, Dayton had become the largest metropolitan area in Ohio without a law school, and the demand for more attorneys was only growing.

But it took a chance meeting to really set things in motion, when the University’s provost at the time, Father Charles Lees was approached by someone from another law school about partnering with UD on a branch campus of their law school in Dayton.

“This fell through, but it did set me thinking.” Lees later told Ralph Vines in an interview. “I began to look at statistics about law schools and students.”

That led to the formation of a committee in 1973 to look at what it would take for the University to reopen the law school.

Federal Judge Walter Rice was part of that committee.

“We readily came to the conclusion that if there was going to be another law school in this part of the state, it could only be here,” Rice says. “That wasn’t contentious. There was very little if any dissent.”

The committee came back with a recommendation of reopening the law school in the fall of 1974, but felt $1.1 million would have to be raised to cover the start-up costs for things like books to fill the law school’s library.

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DAYTON Bar Briefs | sept/oct 2024

That’s where Virginia Kettering Kampf comes in. Kampf agreed to donate $500,000 from the Kettering Fund toward reopening the law school, saying about the effort to raise enough money, “A million dollars doesn’t sound exorbitant when one considers all the social implications.”

With Kampf ’s gift and others, the law school met its fund-raising goal and reopened on August 26, 1974 on the ground floor of the University’s library. Professor Dennis Turner taught the first class that day at 9 a.m. in the law school’s only classroom.

“The students were really engaged because so many had wanted to go to law school but never had the opportunity,” Turner says of those early classes. “They were older and more mature. They took a real interest in running the law school. They had a big investment in the school and wanted to be a part of its success.”

One of those students was Terry Miller ’77 who decided to go to law school after being a newspaper reporter.

“The moment of truth was one of the things I did as a reporter, covering court cases,” Miller says. “I was fascinated by how all that went. I thought I could probably do this. That was the initiating factor.”

Miller quickly took to law school, and ended up being among the three students along with Dalma Grandjean ’77 and Barbara Gorman ’77 who graduated summa cum laude.

“After having worked for a while, you relish the fact you’re back in education and you probably appreciate it a bit more,” Miller says.

Miller, who went on to become International General Counsel at Goldman Sachs and was General Counsel of the London 2012 Organising Committee for the Olympic and Paralympic Games, remembers the togetherness of that first class.

“There was a fantastic spirit,” Miller says. “We were a small class. We had come from all sorts of different places. We were mature students in the sense we had done other stuff.”

The camaraderie of those early students set the tone for all those who have come after.

“One of the best things about this law school is its family culture,” Rice says. “The school really wants students to succeed. The seeds for that were planted with the first class.”

Norman George, who was one of the first six professors at the law school and served as acting dean in the beginning until the first dean, Richard Braun, could be hired in July 1974, said of the law school in a 2017 interview, “There was a lot to do, but we made the right moves. I think we got it off the ground pretty well.”

In all, 106 students from the first class graduated in 1977. The bar passage rate in Ohio for the first class was 93%.

Gorman, who went on to work in the Montgomery County Prosecutor’s Office before serving 33 years as a judge at the Montgomery County Common Pleas Court, says the school’s start-up status made for very driven students.

“I think going to UD the first couple of years was tougher than going some other place,” Gorman says. “Here everyone had to prove themselves. They worked us hard.”

By 1979 the law school had gone from 161 students and 6 full-time faculty members in its first year to 440 students and 19 faculty members.

That was also the year the law school received full accreditation from the American Bar Association after being provisionally accredited since it first opened. A newspaper article at the time says the accreditation news was greeted by a two-day party.

We’re sharp, but we never cut corners.

At that point, UDSL was already making a difference in the lives of its early graduates and the people they went on to help in Dayton and other communities across the country.

“If UD had not opened, I would not have gone to law school,” says Gorman, who had been a teacher and earned a master’s in psychology before attending law school. “It’s when it opened that I began to think this is the next step. The timing was fortunate for me.”

Much has changed about UDSL since its early days in the 1970s, but one thing that has not is that the school has been guided by a mission beyond just teaching the ins and outs of law practice.

On the law school’s reopening, the University’s President at the time, Father Raymond Roesch, said, “Our interest is not merely in providing, under private auspices, opportunities for the acquisition of legal expertise, worthy though this goal may be.

Rather, we see herein an exceptional opportunity to promote justice, social as well as individual - and thus to help humanize society.”

By Jordan Burgess Director of Communications and Marketing University of Dayton School of Law jburgess1@udayton.edu

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Artificial Intelligence, Real Liability: Who’s on the hook when things go wrong?

A

rtificial intelligence, referred to as “AI” for short, has had an outsized impact on nearly every aspect of human existence. If that sounds like an overstatement, it’s not— machine learning systems and generative AI tools have now been integrated into various sectors of life including healthcare, government services, industry, and education. In 2023, more than 50% of US companies reported using AI for cybersecurity/fraud management, and 97% of business owners expressed enthusiasm that AI platforms like ChatGPT will help their businesses.1 Several cities and municipalities have adopted protocols for how local government may use and rely upon AI as part of day-to-day duties.2 Unsurprisingly, the law has lagged well behind the impressive speed of AI’s ballooning technological development. This notwithstanding, various governmental agencies, legislative bodies, and courts have begun to assemble a regulatory regime which may help answer the million-dollar question in this brave new world: who, or what, is liable when AI goes wrong?

Federal law

To begin, entities designing and utilizing AI will likely not be able to hide behind Section 230 for refuge. One of the most important authorities in the AI space, Section 230 of the Communications Decency Act of 1996 provides that “[n]o [internet platform] shall be treated as the publisher or speaker of any information provided by another information content provider.” Many legal scholars, however, are predicting that Section 230’s liability shield will not protect content created by generative AI. Indeed, during proceedings before the Supreme Court in early 2023, Justice Neil Gorsuch suggested that because AI is capable of generating ‘poetry’ and ‘polemics,’ it will not be protected by Section 230.3

Case law

Likewise, AI designers won’t likely be able to escape liability for what their chatbots write by claiming that generative AI is a mere “tool” through which individuals can create content. OpenAI—the company responsible for “ChatGPT”— has been the subject of several lawsuits brought by parties attempting to hold it liable for statements made by its generative AI. In one such complaint, a Georgia radio host alleges that ChatGPT generated text which falsely accused him of embezzlement.4 Although OpenAI has responded that it should not be held liable, as their product is merely a tool through which people can create content, legal scholars have predicted that this will be a losing argument.5 14 DAYTON Bar Briefs | sept/oct 2024

By Zachary Heck Esq. zheck@taftlaw.com JP Jarecki jpjarecki@taftlaw.com Given the pervasiveness of these technologies, it is reasonable to presume that individuals could be harmed by generative AI in any number of ways, apart from being injured directly by the chatbot’s output or by a reliance on the same. In Jones v. W + M Automation, Inc., the plaintiff was injured by a robotic loading system and brought suit against a manufacturer and programmer of the system on a products liability theory.6 The court dismissed the complaint, finding that the defendants “manufactured only nondefective component parts” and the product was “reasonably safe when designed and installed.” Commentators have suggested that this same logic may apply to AI; designers of AI may not be liable for injuries caused by their products so long as the products were non-defective when made. However, defective AI, or AI is that is subsequently modified by a licensee, may give rise to liability for the licensor and licensee.7

ENDNOTES: 1. Katherine Haan, How Businesses Are Using Artificial Intelligence In 2024, Forbes Advisor (Apr 24, 2023, 7:54am), https://www.forbes.com/advisor/business/software/ ai-in-business/#:~:text=Businesses%20Are%20Using%20AI%20To%20Improve%20 the%20Customer%20Experience&text=According%20to%20the%20Forbes%20Advisor%20survey%2C%2073%25%20of%20businesses%20use,services%2C%20such%20 as%20product%20recommendations.

2. City of Boston Interim Guidelines for Using Generative AI (2023), https://www. boston.gov/sites/default/files/file/2023/05/Guidelines-for-Using-Generative-AI-2023.pdf.

3. Ja’han Jones, Gorsuch wades into the AI robot debate in Supreme Court hearing, The ReidOut Blog MSNBC (Feb. 22, 2023, 2:25pm), https://www.msnbc.com/the-reidout/ reidout-blog/gorsuch-ai-chatbot-search-section-230-rcna71790 4. Isaiah Poritz, OpenAI Fails to Escape First Defamation Suit From Radio Host, Bloomberg Law (Jan. 16, 2024, 4:03pm), https://news.bloomberglaw.com/ip-law/openai-failsto-escape-first-defamation-suit-from-radio-host; Walters v. OpenAI LLC, Ga. Super. Ct., No. 23-A-04860-2.

5. Christopher Mims, The AI Industry is Steaming Toward a Legal Iceberg, The Wall Street Journal (Mar. 29, 2024, 9:00pm), https://www.wsj.com/tech/ai/the-ai-industry-is-steaming-toward-a-legal-iceberg-5d9a6ac1 6. Jones v. W + M Auto, 31 A.D.3d 1099, 1100 (N.Y. App. Div. 2006) 7. Ryan E. Long, Artificial Intelligence Liability: The Rules are Changing, The Center for Internet and Society (March 17, 2023, 5:48pm), https://cyberlaw.stanford.edu/ blog/2023/03/artificial-intelligence-liability-rules-are-changing-1#:~:text=The%20implication%20is%20that%20creators,the%20licensor%20and%2For%20licensee.

Administrative guidance

In guidance released in April of 2020, the Federal Trade Commission (“FTC”) promulgated guidelines pertaining to the regulation of AI.8 In this guidance, the FTC warns those who utilize algorithmic decision making tools to make credit-granting decisions to do so in a transparent way and suggests that companies who fail to do so may be liable for damages.

Guidance from Massachusetts

Government officials have also used their platforms to offer some guidance on the subject. On April 16, 2024, Massachusetts Attorney General Andrea Joy Campbell issued an advisory to provide direction to “developers, suppliers, and users” of AI regarding their obligations under existing laws relating to consumer protection, anti-discrimination, and data security.9 In a nutshell, the advisory notes that existing laws apply to emerging AI systems just as they would in the context of any other technology. On the specific question of who is liable for a breach, however, the advisory is less helpful.

It suggests that “developers, suppliers, and users” are liable where the state’s data security and anti-discrimination law are implicated. On the other hand, only “AI suppliers” are warned about the applicability of federal and state consumer protection statutes, including the Federal Trade Commission Act. This language can be read to indicate that the designers and end-users of AI could be off the hook for an AI’s breach of consumer protection laws, which can be quite broad (according to the advisory, an AI breaches state consumer protection laws where it “[f ]ails to comply with Massachusetts ‘statutes, rules, regulations or laws, meant for the protection of the public’s health, safety or welfare.’ 940 Code Mass. Regs 3.16(3)). It should be noted, however, that the vague terms “developers, suppliers, and users” go undefined in the advisory. As a result, any AI stakeholders should presume that that they are not immune from liability.

Looking ahead

AI is certain to become more prevalent in the coming years, and with this heightened prevalence will come litigation. It is likely that the “who is li-

able” inquiry in any given case involving AI will be a fact-specific one, and as a result, the answer will change as the case law becomes more developed. Without any comprehensive regulatory framework or legal standard, we can expect rulings to differ based on jurisdiction, court, and the nature of claims presented. At the moment, however, it appears that AI and the companies who use it will be on the hook for any damages stemming from its use.

ENDNOTES: 8. F.T.C, Using Artificial Intelligence and Algorithms (2020), https://www.ftc.gov/ business-guidance/blog/2020/04/using-artificial-intelligence-algorithms.

9. Attorney General Advisory on the Application of the Commonwealth’s Consumer Protection, Civil Rights, and Data Privacy Laws to Artificial Intelligence (Apr. 16, 2024), https://www.mass.gov/doc/ago-ai-advisory-41624/download.

DISPLAY AD INDEX: Daily Court Reporter...........................................................8 dayton disability foundation....................................15 EIKENBARY TRUST....................................................................19 Ferneding Insurance............................................................9 LCNB | weath..............................................................................13 oBLIC.........................................................................back cover R.L. Emmons & Associates.................................................9 VORYS................................................................................................11

sept/oct 2024 | DAYTON Bar Briefs

15

DBA CALENDAR:

meetings, events & cle’s

OCTOBER 2024 MON

TUE

WED

THU

FRI

30

1

2

3

4

New Lawyers Division @ 12pm Juvenile Law @12pm

7 First Monday in October Celebration @UDSL 10:30am-1pm

14

Join us for kick-off practice area and special interest group meetings to discuss plans for the new bar year!

8

Workers Comp/Social Security @ 12pm

10

Women in the Law @Sinclair 7:30am

Real Property @ 12pm

11

world mental health day

16

17

Federal Practice @ 12pm

Criminal Law @ 12pm

Employment Law @ 12pm

22

23

24

Civil Trial & ADR @ 12pm

28

9

15

Visit daybar.org for meeting details & full agendas

Estate Planning Trust & Probate @ 4pm

Appellate Practice @ 12pm

Inn of Court @Sinclair 5:30pm

21

Chancery Club Luncheon @Engineers Club 11:30am-1pm

29

18

25

Paralegal @ 12pm Domestic Relations @ 12pm Corporate Counsel @ 4:30pm

30 50 Year Honoree Luncheon @Sinclair 11:30am-1pm

31 happy

halloween!

1 Chancery Club Luncheon @Sinclair 11:30am-1pm

Scan to Access

Get these on your calendar!

Nov 8th Bench Bar Conference Nov 22nd Ethical Lawyer Dec 11th Core Components February 7th Chancery Club March 14th Probate Institute April 4th DR Institute May 8th Diversity Day 16 May 14th Memorial Luncheon

DBA On-Demand

CLE!

UPCOMING CLE 33rd Annual

Bench Bar Conference

For over 30 years the DBA Bench Bar Conference has been the Miami Valley’s premier legal event, drawing over

100 attorneys and judges

each year. Renowned as a key DBA event, it is celebrated for its mission to unite the bench and bar members!

Friday, November 8th Sinclair Conference Center 2024 Co-Chairs: The Honorable Helen Wallace

Montgomery County Common Pleas Court

Kristine Comunale Esq.

Montgomery County Public Defenders Office

You can sponsor this event!

Contact Shayla Eggleton by October 21st! seggleton@daybar.org

Core Components for New Lawyers wyer new laining tra

professionalism

The Ohio Supreme Court has mandated that all attorneys admitted by exam to the practice of law in Ohio must complete three-hours of instruction that includes one hour of the following: professionalism professionalism, law la w practice management and client funds management.

This program fulfills these requirement!

Wednesday, December 11th 9am-12:15pm 3.0 nlt hrs @ DBA

client funds management

law practice management

sept/oct 2024 | DAYTON Bar Briefs

17

Ashton J. Hood Esq. Ohio Department of Taxation

By Nathaniel M. Fouch Esq.,Chair, Editorial Board Supreme Court of Ohio nathaniel.fouch@sc.ohio.gov

With Ohio Governor Mike DeWine and wife, Frances

A

ttorney, educator, mentor, community advocate, musician, leader—Ashton Hood defies easy categoriz¬ation. His easygoing demeanor and geniality belie his deep passion, thoughtfulness, faith, and drive to serve others.

He glides between worlds and roles—outreach coordinator at the Ohio Department of Taxation, school board president at the Dayton Leadership Academy, co-founder and executive director of the Columbus Cultural Orchestra, public relations chairman at the Delta Alpha Chapter of Omega Psi Phi, and immediate past co-chairman of the Dayton Bar Association’s Diversity, Equity, and Inclusion Section. As any good upright bassist, however, Ashton is rarely front and center. Instead, he keeps the tempo, serving as a backbone and enabling others to star. Even from the background though, Ashton has proven he merits the designation of Rising Star.

A native Cincinnatian, Ashton excelled academically and athletically and earned a scholarship to play NCAA Division One football at Lehigh University in Bethlehem, Pennsylvania. After 18

DAYTON Bar Briefs | sept/oct 2024

graduating with his bachelor’s degree and a major in Political Science and Government, Ashton chose to serve as a corps member in Teach for America.

He was placed as a seventh and eighth grade math teacher at the Dayton Leadership Academy (DLA), a charter school in West Dayton. Despite lacking a math background, starting his term as the State of Ohio was implementing the Common Core math curriculum, and being responsible for 200 students, some 25 of whom had individualized education plans, Ashton thrived. He learned as he taught, and it was ultimately his students’ improved math scores that were responsible for DLA earning the Ohio Department of Education’s Momentum Award. Ashton showcased his versatility by simultaneously serving as the school’s athletic director, a championship-winning basketball coach, and an “informal community coordinator” for young male students.

Ashton had long had ambitions to attend law school, and his experience with Teach for America fueled his ambition to study education law. But it was the death of his father, Robert Glenn Hood, and Ashton’s subsequent experience with the probate process which informed his first understanding of the reality of the legal system. Ashton returned to Cincinnati to attend law school at the University of Cincinnati College of Law. Once more, he excelled. President of the Black Law Student Association in his 2L year and Editorin-Chief of the Freedom Center Journal in his 3L year, he racked up diverse experiences working at the Ohio Department of Education, the Ohio Attorney General’s Office, Cincinnati Public Schools, and at a law firm and bankruptcy court. He also received recognition for his pro bono service and was awarded for his social justice efforts. Following graduation, Ashton took a position with the Ohio Attorney General’s Office.

Ashton has written movingly in these pages of the challenges he faced passing the bar exam after

law school. 1 His perseverance in the face of these struggles and his willingness to share them publicly speak highly to his character. His openness about the darkness he experienced when faced with failure for the first time in a life characterized by high achievement offer encouragement to the not inconsiderable number of law graduates who take the bar exam multiple times and offers a breath of fresh air in a profession where discussion of “failure” is often taboo. In the midst of a pandemic and the summer of George Floyd’s murder, Ashton accomplished his goal and was admitted to the bar.

Ashton began his legal career as an Assistant Attorney General in the Collections Enforcement Section of the Attorney General’s Office.

He represented state agencies including the Ohio Department of Transportation, Auditor of State, and Bureau of Worker’s Compensation in probate, tort, and bankruptcy matters involving collection of delinquent claims owed to the state. He later served in the Civil Rights Section at the Attorney General’s Office, where he represented the Ohio Civil Rights Commission in disputes involving fair housing, labor and employment, public accommodations, and fair lending practices. These roles gave him an intimate understanding of administrative law and experience negotiating and brokering relationships.

In April, Ashton transitioned to a position as the Community Outreach Coordinator for Western Ohio at the Ohio Department of Taxation. And the fit couldn’t be more seamless. He’s able to combine his background as an educator with his knowledge of law to teach Ohioans about tax laws and to coordinate with stakeholders and policymakers to help create a more efficient state tax system.

ENDNOTES: 1

Ashton J. Hood, Passing the Bar in the Midst of a Global Pandemic: A Memoir, 72 Bar Briefs, no. 3, p. 8 ( Jan./Feb. 2023).

cooking healthy meals together every Sunday as Dr. Hood is passionate about the power of food as medicine both in their personal lives as well as in the treatment plans she prescribes for her patients. The couple met in Dayton while simultaneously teaching at DLA just before they both decided to matriculate into law school and medical school respectively. They got married and bought their home in the Dayton View neighborhood shortly after Ashton was admitted into the Ohio bar. Whenever the opportunity presents itself, the Hoods love forest bathing and spontaneous travel.

No enumeration of the hats he wears of roles he performs can fully encapsulate Ashton Hood. Perhaps the closest we can hope to come is in reflecting that in every role he lives out the motto of Omega Psi Phi: “Lift as we Climb.” Ashton has certainly climbed. And looking at his impact— from Cincinnati to Columbus to Dayton—it’s evident he’s lifted countless others along the way.

Wife, Hood, Dr. Rachelle Dulan D.O.

Co-founder, Columbus Cultural Orchestra

The difference between this experience and litigation is the difference between “diving into Lexis” to figure out the meaning of a law and sitting down with the author of the bill for coffee. It’s all about building relationships, providing constituents with resources, and getting into rooms with decision-makers to ensure that the public is well informed about the inner workings of the state Tax Department. Rather than hoarding resources and waiting for people who need help to come to him, Ashton’s role is to conStudents from Dayton Leadership Academy nect subject matter experts with taxpayers and help solve problems before they get too big.

Ashton is a lifelong lover of music, and he has translated that passion into service. A classically trained upright bassist, he played in the Lehigh University Philharmonic Orchestra and the Cincinnati Community Orchestra. When his father died, Ashton inherited his vast collection of vinyl records—principally composed of jazz—along with an insurance policy that he used to purchase the first double bass he has ever owned. In 2020 he co-founded the Columbus Cultural Orchestra (CCO), a program aimed at diversifying the music classroom, at a time when a mere 2 percent of symphony musicians are African Americans. This group of 25 students, aged 13-25, plays a mixture of classical and culturally relevant arrangements, including pieces by Mozart, Miles Davis, and Drake. Ashton is president of CCO’s board, books events for the group, and even accompanies them on his upright bass. He was responsible for securing a $60,000 Thrive grant award from the Greater Columbus Arts Council in 2022.

CCO is far from the only service organization to which Ashton devotes his time, talent, and treasure. Since 2022, Ashton has been a member of the school board at the Dayton Leadership AcadWhat is The Eikenbary Trust? emy—the same school he served so well when he first moved to Dayton—and as the only former teacher from the school to be on its board, he provides an invaluable perspective. In January he began The late Herbert M. Eikenbary granted the bulk of his a two-year term as school board president. He was also co-chair of estate to fund Grants and Loans to lawyers under the age the Dayton Bar Association’s Diversity, Equity & Inclusion Section of 35 who practice/reside in Montgomery County. These for the last two years. Additionally, Ashton is a dedicated member Grants and Loans are to aid young, deserving lawyers who of Omega Psi Phi, serving as public relations chairman of its Delta are in need of financial assistance.

Alpha Chapter in Dayton. The chapter has served Dayton for ninety years, and annually awards $10,000 in scholarships to area students, Individual loans, are available up to $6,000 at 4% interest, feeds the homeless, and engages in literacy and mentorship initiawhile grants up to $4,000 are also available. tives.

Ashton and his wife, Dr. Rachelle Dulan Hood, D.O.—a family To Apply: Jennifer Otchy, DBA Chief Executive Officer physician at the Kettering Health Network—live in Northwest Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 Dayton. They enjoy daily walks around the neighborhood with their jotchy@daybar.org | 937.222.7902 | www.daybar.org Catahoula leopard pit bull, Dawn. Ashton and Rachelle both enjoy

HERBERT M. EIKENBARY

Trust

sept/oct 2024 | DAYTON Bar Briefs

19

FROM THE JUDGES DESK

Therapeutic Therapeu tic Alternatives to Incarceration:

Specialized Dockets

S

up. R. 36.20(A) defines a specialized docket as a “particular session of court that offers a therapeutically oriented judicial approach to providing court supervision and appropriate treatment to individuals…” Specialized dockets are designed to provide targeted intervention to offenders who have been deemed appropriate candidates for community supervision (i.e. probation) rather than incarceration.

The Ohio Supreme Court has developed rules governing the certification of a specialized docket

By The Honorable Angelina Jackson Montgomery County Common Pleas Court - Gen Div angelina.jackson@montcourt.oh.gov

program. In order to receive certification, courts operating specialized dockets are required to submit applications, undergo site visits, and submit specific program materials to the Specialized Docket Section of the Supreme Court.

Currently, the Montgomery County Court of Common Pleas General Division operates five certified specialized dockets, each of which is designed to address the rehabilitation needs of some of the most vulnerable members of our community.1 Most participants in specialized

dockets are charged with lower level, non-violent felony offenses and have little to no history of violent behavior.

Men’s Achievement Recovery Court (MARC) The Men’s Achievement Recovery Court (MARC) is designed for male offenders with a moderate to high risk level.2 It is designed to reduce reoffending by changing participants’ drug-using behavior. It is a highly structured program, lasting 6 months to 5 years, that encour-

ENDNOTES: The Juvenile Division of the Common Pleas Court currently operates three certified specialized dockets while Dayton Municipal Court operates one - bringing the total to nine specialized dockets operating in Montgomery County to address the rehabilitation needs of juvenile and adult offenders.

1

20

DAYTON Bar Briefs | sept/oct 2024

The risk assessment tool used by the Court is the Ohio Risk Assessment System (ORAS), a statewide assessment system that provides risk assessment instruments for use during pretrial, community supervision, prison intake, and community reentry. Latessa, E. et al. The Creation and Validation of the Ohio Risk Assessment System (ORAS). Federal Probation Journal, Vol. 74:1 ( June 2010) 2

ages sobriety through weekly court appearances, intensive supervision by the Montgomery County Probation Services Department and involvement in treatment.

To graduate from MARC, participants are required to be drug and alcohol free for 6 consecutive months, be employed or enrolled in school, have no new felony offenses, have fulfilled their financial obligations and have completed any court-ordered special conditions. MARC has a successful completion rate of 75%.

Recovery is Empowering Court (RISE) The Recovery IS Empowering Court (RISE) is designed for female offenders with substance abuse issues and moderate to high risk levels. Since 2014, more than 1,020 women have participated in the program. RISE is also a highly structured program with requirements similar to MARC. RISE participants are required to meet with their probation officers anywhere from one to five times a week, depending on their individual needs.

RISE participants have severe alcohol and/or substance addictions as well as a history of trauma. Some participants are also dealing with moderate to severe mental health issues. RISE has a successful completion rate of 71%.

Therapy (HEAT). Participants may be required to meet with their probation officers anywhere from one to five times a week, depending on their individual circumstances. Kushinda Court is the first specialized docket of its kind in the state of Ohio.

To graduate from Kushinda Court, offenders must complete the 9-month HEAT curriculum, complete community service, have no new criminal offenses and abstain from the use of drugs and alcohol.

I am honored to serve in a court that recognizes the importance of providing targeted alternatives to incarceration to address both public safety and rehabilitation. As we move into the future, I look forward to the continued growth of Montgomery County’s specialized dockets.

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

Mental Health Court (MHC) Mental Health Court is a specialized court designed to assist offenders in establishing independence and stability while reducing recidivism through individualized treatment plans and regular court appearances. To be admitted to Mental Health Court, participants must have been diagnosed with a severe mental illness, including, but not limited to, the following: Schizophrenia, Schizoaffective Disorder (bipolar or depressive), Bipolar Disorder, Major Depressive Disorder, Obsessive Compulsive Disorder, Panic Disorder, or Post-Traumatic Stress Disorder (PTSD), as diagnosed by a licensed provider and as described in the most current edition of the DSM (Diagnostic and Statistical Manual of Mental Disorders).

MHC connects participants with mental health treatment options through area agencies and provides an encouraging and supportive atmosphere to foster stability, self-sufficiency and compliance with mental health treatment. MHC has a successful completion rate of 76%.

Veteran’s Treatment Court (VTC) Veteran’s Treatment Court (VTC) is designed to assist veterans who are involved in the criminal justice system. In order to qualify for VTC, participants must have received an Honorable or General (Under Honorable Conditions) discharge from the United States Military Services. Additionally, drug or alcohol use, PTSD, traumatic brain injury, or another physical/ mental condition must be a significant factor in the commission of their offense. It is not required that an offender have been in combat or have received a PTSD diagnosis to participate in VTC. Most participants have a severe drug and/or alcohol addiction.

VTC participants may be required to meet with their probation officers anywhere from one to five times a week, depending on their individual circumstances. The average stay of a veteran in this particular specialized court is 12 to 18 months.

Kushinda Court Kushinda Court is designed to facilitate effective, evidence-based treatment of 18-29-year-old male offenders from urban communities who have been placed on intensive community supervision. Kushinda Court participants typically come from communities that are underserved, under-resourced and plagued with gun violence. Prior to Kushinda Court’s inception in 2021, there was no programming designed specifically to address the unique recidivism risks associated with these offenders. Kushinda Court participants meet biweekly with the Court and are also required to attend biweekly sessions of Habilitation Empowerment Accountability

ATTORNEY MEMBERS: Amber Angel Esq.

Taylor Ford Esq.

Montgomery County Public Defender

ABLE

Renee Murphy Esq. ABLE

Perry Kendall Esq.

Maria Otero Esq.

Emma G. Cassell Esq.

Law Office of Perry Kendall

ABLE

ABLE

Makiedah Messam Esq.

Patricia S. Riley Esq.

Victoria E. Flynn Esq.

ABLE

Gantt & Blaine Co., LPA

Kirkland & Sommers

Nolan McNamee Esq.

Abigail Russell Esq.

McNamee Law Group, LLC

PARALEGAL MEMBERS: Michelle Colletti David E. Curl

Jennifer Johnson Sebaly Shillito & Dyer

Henny Penny Corporation

Julia Sonneborn

Elizabeth Foster

Pickrel Schaeffer & Ebeling Co LPA

Montgomery County Public Defender

Angela Sturckler Gudorf Law Group

The DBA is proudly serving 1,400 members! sept/oct 2024 | DAYTON Bar Briefs

21

SOCIAL JUSTICE

Children’s Historical Publishing

Books to start conversations that open minds and hearts

S

ome 30+ years ago, when my husband and I welcomed our daughter into the world, we knew there were certain lessons we wanted to impart to her.

Some were obvious such as: live in the moment. Thus, when she turned 8 and took an interest in baseball, my somewhat rabid Pirates-fan-of-a-husband, was thrilled. The aroma of peanuts, the crack of the bat and a hug from Heeter (for my husband, that is) were all it took for a great family night outing.

We enjoyed many of those “in the moment” experiences. But coupled with this joy, were meaningful conversations that the moments and experiences we had were not universally shared by all in our society and so those “moments” also became teaching moments. And we discovered that books are an incredible foundation for framing such conversations.

Thus, if your child or grandchild is a baseball fan, I suggest you look into an illuminating book entitled The Curve Ball: The History of the Negro Baseball Leagues which highlights the extraordinary African-American figures, pivotal places and defining events of an amazing period in baseball history.

This book, along with countless others, is the product of Children’s Historical Publishing (CHPs) , a local non-profit, founded in 2001 which, through sponsorships and sales, has provided over 600,000 free learningactivity books to area school children. I’ve witnessed firsthand the sheer joy of young students hugging a CHPs book to their chest as their first-owned book and most cherished possession.

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

If you would like to suggest a highlight, please contact Chris Albrektson at the DBA. 22

DAYTON Bar Briefs | sept/oct 2024

The topics of these books serve young people in several ways. First, there is a focus on local history which generates a well-founded pride in our own hometown. When students read of the ingenuity and community relief efforts surrounding the 1913 flood in Water, Water Everywhere… they are imbued with the knowledge that we are a compassionate comBy Magistrate Bonnie Beaman Rice, Ret. munity which can overcome difficulty when we SJI, Chair work together. bonnie.jjysp@gmail.com Second, in A Home for our Heroes, which chronicles the history of Dayton’s Veterans Daily News) and Michael Carter (Negro Administration, readers learn the lesson of sac- Baseball League enthusiast). The funds raised, rifice for a larger cause. This lesson is a thread enabled the distribution of free books to young that runs through other CHPs publications: readers through Building Bridges, Dayton The Tuskegee Airmen, Train Without Tracks: Young Black Professionals, The Foodbank and Secrets of the Underground Railroad and Ohio other area non-profits.

Women in the Military.

At our most recent book launch of Lincoln: Third, a lesson we always stressed to our The Servant Leader, CHPS held a dinner at the daughter was to appreciate the struggle and Dayton Women’s Club after which we honored achievements of those who came before us Tom Roberts and awarded our first Servant and on whose shoulders we stand. They have Leadership Award to Dr. Eric Spina, Presilifted us higher and their stories should not be dent, University of Dayton. forgotten. In this vein, CHPs has published Through the distribution of its books, CHPs such books as Paul Laurence Dunbar: Traits of mission is “to educate, entertain and inspire Success, For the Love of Dance: The story of the children to grow and realize their potential.”

Dayton Ballet, and Great Women of the Miami And, as my husband and I quickly learned, Valley. they provide great opportunities for important Finally, as lawyers, we all wish to foster conversations to open minds and hearts. a respect for the rule of law. Our very own All of these worthwhile books, and more, Merle Wilberding and Susan Elliot introduce can be found on the group’s website at: both this subject and the value of mediation www.chpsbooks.org to young readers in the CHPs books they The Executive Director of this amazing co-authored: Haki & the Rule of Law and Haki non-profit is Joyce Reid Kasprzak who, in Finds Common Ground.

2010, was recognized for her many community In addition to CHPs publications, this contributions by the Dayton Daily News as organization has held public programming to one of its Top Ten Women. Her dedicated highlight its many book topics; for example, at board of educators and community volunteers a Father’s Day picnic in 2023 you could find (full disclosure: including my husband and me) Judge Walter Rice leading a reading circle for are always on the outlook for new book topics, youngsters as they read aloud and discussed board members with promotional and Dayton Inventors and Inventions. Parents were organizational skills, sponsors and anyone provided a checklist of the “Benefits of Read- whose passion embraces helping our youth. If ing with Your Child.” you would like to get involved or learn more, During the height of Covid, CHPs held a please feel free to reach out. zoom fundraiser highlighting The Curve Ball Joyce Reid Kasprzak (mentioned above) with a panel discussion that chps@woh.rr.com| (937) 506-7526 included the book’s author, Brian Reid, Marc 7427 Yarrow Lane Katz (former sportswriter for the Dayton Tipp City, OH 45371

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23

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STRENGTHEN Our Foundation.

The Dayton Bar Foundation (DBF) is a 501(c)(3) charitable organization and serves as the giving arm of the Greater Dayton Legal Community.Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:

•Advocates for Basic Legal Equality (ABLE) •Greater Dayton Volunteer Lawyers Project (GDVLP) •Law & Leadership Institute •Legal Aid of Western Ohio (LAWO) •Miami University Pre-Law Center •Wills for Heroes All gifts are eligible for charitable deductions on your federal income tax return if you itemize deductions. = = = = = = = = == = = == = = = = = = = = = = = = = DETACH AND RE­TURN OR SCAN TO DONATE= = = = = = = = = = = = = = = = = = = = = = = =

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DAYTON Bar Briefs | sept/oct 2024

Law Related Organizations Greater Dayton Volunteer Lawyers Project (GDVLP)

An Open Letter to Law Firm Management:

Spotlighting Pro Bono Opportunities for New Talent

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s an avid fan of Suits, my understanding of pro bono work was shaped by dramatized TV portrayals. Before interning with the Greater Dayton Volunteer Lawyers Project, I believed pro bono cases were always grand, headline-worthy stories of attorneys aiding underprivileged clients. This misconception overlooked the everyday significance of pro bono work and the diverse attorneys involved, often impacting those in greatest need through small yet significant contributions. A phrase often heard uttered around the office is, “15 minutes of

Anastasija Mladenovska is a legal intern at GDVLP and a triple major in political science, accountancy, and Russian, East European & Eurasian studies at Miami University. She is passionate about community service and aims to pursue a career in law.

quality legal advice can change people’s lives!”

Having now experienced pro bono management firsthand, I want to highlight why law firms should encourage pro bono service by all their legal staff, especially young lawyers.

First, as Associate U.S Supreme Court Justice Sonia Sotomayor said, "We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice." Pro bono work in the nonprofit sector is a cornerstone of American

society, contributing significantly to the economy and employing more people than the for-profit sector.

While individual attorneys taking on pro bono cases is admirable, such efforts can be costly, time-consuming, and lack the protective resources available at an organizational level. Organizations like GDVLP act as liaisons between attorneys and community members, offering structured, impactful service opportunities.

Here are five reasons why pro bono work benefits young attorneys: Exposure to Diverse Areas of Law

Building Community and Reputation

Coordinated Efforts Yielding Significant Impact

Client Interactions

Pro bono opportunities help young lawyers gain experience with various areas of the law, both in and out of the courtroom. Organizations like GDVLP assign cases to attorneys based on fit, and sometimes attorneys bring clients to us. These civil cases often require critical thinking and allow young lawyers to demonstrate empathy, compassion, and familiarity with resources in action.

The good news about doing pro bono work in conjunction with a recognized pro bono provider is that the only thing a young attorney needs to do is show up for their appointment or hearing. All the paperwork and scheduling is handled by the staff. Malpractice insurance is provided by the organization. What’s more, GDVLP assists in many areas of law so you can choose to only help with simple, discreet counsel and advice sessions, take on full representation in a simple action like an uncontested divorce, or wade into slightly more complicated cases that are expected to have a turnaround time of about a couple of months to a year.

Beyond the practical benefits, pro bono work fosters personal growth and professional development. Pro bono work can lead to unexpected opportunities - networking within the nonprofit sector can open doors to new career paths and collaborations. Young lawyers who engage in pro bono work often find themselves part of a supportive community of like-minded professionals dedicated to social justice.

A law firm with a strong pro bono record connects with the community and gives back, establishing a positive reputation. A 2019 Glassdoor Survey revealed that 56% of workers prioritize good workplace culture over salary for job satisfaction. Pro bono work fosters a sense of community, attracts potential recruits, and builds relationships with the nonprofit sector.

Pro bono work provides opportunities for client consultations, an experience many young lawyers in corporate settings may lack. These interactions offer a window into the world of the marginalized, allowing attorneys to directly confront their privilege and potentially experience life-changing moments.

Earning CLE Credits

In Ohio, 6 hours of pro bono work equates to 1 hour of CLE, with attorneys able to earn up to 6 CLE hours per reporting period. CLE courses can be costly. Volunteering both reduces firm costs for these credits and also provides meaningful assistance to those in need.

As a law firm, you can integrate pro bono work into your firm's culture by promoting pro bono opportunities, providing training, support and mentorship programs, recognizing and rewarding participation and fostering a pro bono culture.

If you are in the Dayton area, I strongly encourage you to connect your young attorneys with our organization. This will provide them

with invaluable exposure to the impactful world of pro bono work.

As outlined, I urge all law firms to advocate for pro bono service among their legal teams, especially new recruits. Doing so not only fulfills ethical responsibilities but also strengthens our community and the legal profession..

sept/oct 2024 | DAYTON Bar Briefs

25

LAW RELATED ORGANIZATIONS Ohio Lawyers Assistance Programs (OLAP)

How You Can Help Decrease Mental Health Stigma

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or millennia, society treated people who suffered from mental health disorders as criminals. In the Middle Ages, mental illnesses were believed to be punishments from God, where people were burned at the stake or put in penitentiaries where they were chained to their beds. During the Age of Enlightenment, the mentally ill were put in institutions and mental illnesses began to be treated like other common problems. As the years went by, people became more aware of these disorders and did their best to try to treat them. Now, I see billboards, yard signs, mental health awareness posters in workplaces, and social media campaigns that say, “You are not alone,” or “It’s ok to Increase education and awareness of and access to proper treatment The workplace has a tremendous impact on personal identity, self-esteem and social recognition; therefore, it is important to formulate a plan that addresses mental health and substance use disorder issues and make sure the plan is well-known at your office. Your plan should express your commitment to leading a healthy workplace and help leaders identify signs and symptoms and how to respond accordingly.

Create a culture where wellness and access to help is encouraged and accessible.

By Scott R. Mote, Executive Director OLAP

ask for help.” This creates more awareness around mental health, and I am impressed with the movement. We have come a long way in recognizing and treating mental illness, but, unfortunately, discrimination of the mentally ill is still pervasive. We still have more work to do.

More than half of people with mental illness do not get help. The ones who do not seek help are concerned about being treated differently or are afraid that they will lose their jobs.

Given your strong credibility and respectability as a legal professional, you are in a powerful position to influence public perception of mental illness and related stigma. Here’s how you can help.

Think before you speak or “That makes me crazy,” simply say “It annoys You communicate daily—with fellow atme.” This helps remove negative words that are torneys, judges, people in the courtroom, the sometimes associated with MH/SUD. public. When you speak, people listen. They respect your opinions, and they take notice of Lead by example how you communicate. At times, you may need When others in the profession see you taking to speak about mental health illness and subcontrol of your life and not letting emotions stance use disorders, whether you are speaking take over, they will look up to you and want to about a person living with one of these disorders follow in your footsteps. When they see that or about the topic in general. One way you can you are an advocate for mental health awareness help decrease the stigma of mental health illness in the workplace and the profession, it helps and substance use disorder is to learn how to others understand that it is ok to ask for help. use the proper terminology for these disorders. Persons of trust can have very high credibility, When we say hurtful words such as cripple, because they themselves have been affected by Recognize the signs and symptoms retard, insane asylum, addict, junkie, crackhead, these illnesses and can report first‐hand experiRecognizing the signs and symptoms of druggie, etc., we are using words that display ences and comment on treatments. a mental health issue in yourself, let alone in judgment, shame and blame.

Research has shown that knowing or having someone else, can be a challenge. Early warning Carefully choose words that display a contact with someone with a mental illness is one signs may be difficult to identify, but you may non-judgmental interpretation. Substance use of the best ways to reduce stigma. People who notice an individual struggling with a mental disorder used to be called “substance abuse.” share their stories can have a positive impact, health issue experiencing: When you think about the term “abuse,” it is because when individuals know someone with • Increase in drug or alcohol use usually coupled with other types of abuse, such mental illness, it can become more relatable and • Withdrawing from normal activities as child abuse, domestic abuse, and physical less intimidating.

• Change in sleep habits abuse. In these types of abuse, there is a person As a lawyer, you help people, you are a leader • Feeling hopeless who is causing direct harm to another person. in your community, and you can help end the • Low energy When you say “substance abuse,” it makes one stigma of mental health. Learn the facts about • Uncharacteristic emotions believe that the person is committing a crime. mental health, be cognizant of them, and help • Confusion/forgetfulness But when you label addiction as “substance use yourself or someone you think is struggling. Be • Normal activities are a challenge disorder,” it conveys that this is a disorder that quick to dispel something that is not true. Most • Thinking of harming oneself needs to be treated medically. When you label importantly, teach others to treat people with • Hearing voices or delusions someone as a substance abuser it encompasses mental illnesses with respect and dignity, as they Often, individuals feel uncomfortable or the whole person, which defines him or her by would anybody else. unsure of how to bring up their concerns to a dysfunction. In contrast, the “substance use discolleague they suspect may be struggling; it can order” tag simply describes one problem, rather If you or another legal professional you know needs be a bit of an awkward conversation to have than an entire identity. help, contact the Ohio Lawyers Assistance Program. with a coworker, regardless of how well you Some other words that we might say in OLAP is a confidential program that helps legal know the individual, but it is possible, and it is our everyday language can convey stigma. For professionals cope with the stresses of the profesour responsibility to try to help. example, one might say “That’s crazy, psycho, sion. OLAP has saved lives, careers, marriages and insane.” Instead say “That’s wild, bizarre, ecfamilies. All inquiries are confidential centric.” Instead of saying “That drives me nuts” (800) 348-4343 / ohiolap.org 26 DAYTON Bar Briefs | sept/oct 2024

MEMBERS ON THE MOVE & CLASSIFIEDS

Classified Ads: Details daybar.org/classifieds DYSINGER & PATRY, LLC PARTNERSHIP TRACK ASSOCIATE ATTORNEY POSITION - JOB TYPE: FULL-TIME; IN-PERSON Dayton Area Full-Service Law Firm with a focus on: Estate Planning, Trust & Estate Administration, Probate, Business Law, Labor & Employment, Corporate Transactions, Mergers & Acquisitions, Litigation, Domestic Relations, and Personal Injury, is expanding their workforce and looking to hire a partnership track associate attorney position.

Compensation competitive and commensurate with experience. Send resumes, a writing sample of no more than 20 pages, and 3 professional or academic reference to officemanager@dysingerlaw. com or Dysinger & Patry, LLC, Attention: Office Manager, 249 S. Garber Drive, Tipp City, Ohio 45373.

The law firm of Coolidge Wall Co., L.P.A. is pleased to announce that Robert D. Ballinger and Benjamin A. Mazer have been elected as new shareholders of the firm.

Robert began as a law clerk at Coolidge while still in law school and now specializes in complex commercial real estate, including advising on governance and management of various business entities. He also handles business transactions like acquisitions and partnership buyouts. In 2024, he was recognized as a "Ones to Watch" in Real Estate Law by Best Lawyers in America.

Ben advises both private and public sector employers on employment issues, including litigation and collective bargaining. He represents clients before agencies like the EEOC and OCRC and navigates federal and state employment laws such as FLSA, ADA, and FMLA. He also consults on municipal matters including public records, zoning, and internal investigations. Ben has been recognized in Best Lawyers in America for “Employment Law- Management” in 2022, 2023, and 2024.

FULL-TIME CIVIL LITIGATION ATTORNEY Subashi, Wildermuth & Justice, is seeking an attorney with a minimum of two years of experience. The associate will handle all phases of the litigation process – including discovery, depositions, trial, and motion practice – in insurance defense matters.

Only applicants with a resume, law school transcript, and three writing samples will be considered. Email to admin@swohiolaw.com

IUE-CWA STAFF COUNSEL

The IUE-CWA, a national manufacturing Union headquartered in the Dayton area, seeks a staff counsel, to work with staff and local officers. We are looking for candidates with a demonstrated commitment to the labor movement and/or experience with labor law.

Candidates must have a license to practice law and a willingness to travel occasionally. Pay and benefits are set by the terms of the staff union CBA. The IUECWA is committed to diversity in all hiring.

Interested candidates should send a cover letter, resume, references and writing sample to the IUECWA’s Legal Department Secretary Jayla PruittSwitzer: jpruitt-switzer@iue-cwa.org.

OFFICE FOR RENT 5518 N, Main St., Dayton, OH, furnished, desk for secretary, use of conference room, waiting room, parking behind the building MARY K. C. SOTER, 937278-8275

Gregory M. Gantt, Co., L.P.A. is pleased to announce the addition of Erik R. Blaine as a partner in the firm, and the firm’s name change to Gantt & Blaine, Co., L.P.A. Greg Gantt, a well-known lawyer and community leader in the Dayton region for over 29 years, has an established reputation for getting results. He is a native of the Miami Valley and a graduate from the University of Dayton. His law practice focuses on Start-Ups, Mergers and Acquisitions, Small Business Formations, and Corporate Dissolutions, Probate, Estate Planning, and Civil Litigation, and Collections. Since 2012, Greg has served as the Chairman of the Ohio Unemployment Compensation Review Commission. In 2020, he was recognized as by America’s Top Lawyers – Top 5%, and he a Fellow with the Ohio State Bar Foundation.

Erik Blaine represents clients in a wide variety of cases in both state and federal courts. Erik understands client needs and crafts solutions to prevent litigation as well as successfully win cases. Erik focuses his considerable experience and talents on achieving client goals both in and out of the courtroom. He has been repeatedly recognized for his professional accomplishments as a Super Lawyer and previously as a Rising Star. He also serves on numerous community boards and causes.

Nathaniel M. Fouch is concluding his term as a judicial law clerk for Justice R. Patrick DeWine of the Supreme Court of Ohio. He will begin practice as a litigation associate at Sebaly Shillito + Dyer at the end of September.

The law firm of Intili Group is pleased to announce that Thomas Intili has been recognized in The Best Lawyers in America® for his exceptional work in Personal Injury Litigation - Plaintiffs, and Medical Malpractice Law - Plaintiffs.

Members on the Move Guidelines:

If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you!

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

seggleton@daybar.org | 937.222.7902

sept/oct 2024 | DAYTON Bar Briefs

27

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