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The Magazine of the Dayton Bar Association | October 2019 | Vol. 69, No. 2


Bar Briefs 27th Annual DBA

Bench Bar Conference

Fair Elections vs.

Social Media

Friday, November 8th @ Sinclair Community College Bldg 12 Early Bird Rate Ends October 16th

Special Guest Speaker:

The Honorable Judge Jeffrey Sutton US Court of Appeals for the 6th Circuit

Barrister of the Month Larry G. Crowell pg 6

Celebrate Pro Bono Month Read Various Articles Throughout this Issue pg 8, 12, 22, 24

Estate Planning Trust & Probate Pop Quiz: Estate Claims pg 10


Bar Briefs

October 2019 | Vol. 69, No. 2

Dayton Bar Association Board of Trustees 2019 – 2020

Hon. Mary L. Wiseman President

Fredric L. Young First Vice President

Merle F. Wilberding Second Vice President

Caroline H. Gentry Secretary

Brandon C. McClain Treasurer

Rebecca M. Gentry Member–at–Large

Anne P. Keeton Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber Member–at–Large

David P. Pierce

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Executive Director

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 Jennifer Otchy, 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.


Dayton Bar Briefs October 2019

CONTENTS Features 4 TRUSTEES MESSAGE Three Initials That Defined the Supreme Court, 100 Years Ago

October is National Pro Bono Month!

Articles included in this issue are intended to draw attention to the need for pro bono participation, and to thank those who give their time year round.

By Merle F. Wilberding



By Mary KC Soter



By Lindsey Posey and Kelly Henrici

YOUR Greater Dayton Volunteer Lawyers Project!

10 ESTATE PLANNING TRUST & PROBATE Pop Quiz: Estate Claims – Who Wins? Nursing Home or Medicaid?

Extra Credit: Can the Estate Pay for the Appeal?

By Edward M. Smith


Introducing Pro Bono Partnership of Ohio …Attorneys Strengthening Nonprofits

By Kermit F. Lowery, Mark R. Chilson & Erin Childs

16 THE WALTER H. RICE FEDERAL BUILDING AND U.S. COURTHOUSE Celebrating the Naming and the Namesake

By Michael N. Rhinehart


Can the Failure to Pay Court Costs Terminate the Legal Ability to Drive?

By Sarah N. Webber

24 ABLE/LAWO Coming Up... Access to Justice Awards Celebration!

By Karla Garrett-Harshaw

26 FROM THE JUDGES DESK The Importance of Civility and Professionalism During Depositions

By The Honorable Mary L. Wiseman


Guest Speaker: The Honorable Judge Jeffrey Sutton, US Court of Appeals for the 6th Circuit

18 DON'T MISS THESE UPCOMING DBA SPECIAL EVENTS First Monday in October - 10/21 @ UDSL Mathias Heck Courtroom

Popcorn Pizza and a Movie @ the Court - 10/25 @ Judge Wiseman's Courtroom DBA Book Club - 11/20 @ DBA

19 50 YEAR HONOREE CELEBRATION Thurs. October 17th | Sinclair Community College Bldg 12 | Doors open 11:30am 937.222.7902

DBA Annual Partners Sponsors of the DBA. Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.

Platinum Partners FARUKI+

www.ficlaw.com With offices in Cincinnati & Dayton

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

Gold Partner Thompson Hine LLP www.thompsonhine.com

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.

If you are interested in becoming a DBA Annual Partner, contact: Jennifer Otchy DBA Executive Director jotchy@daybar.org 937.222.7902 www.daybar.org

October 2019 Dayton Bar Briefs


Trustee's Message

Three Initials That Defined the Supreme Court, 100 Years Ago By Merle F. Wilberding DBA Second Vice President Coolidge Wall Co., LPA


or many people, the three initials that define the United States Supreme Court are RBG, standing for Associate Justice Ruth Bader Ginsburg. She does have a powerful social presence, including 37,000 followers on Twitter, and 5,000 followers on Instagram. She is the primary subject of both a documentary (“RBG”) and a movie (“On the Basis of Sex”). But when we look back one hundred years ago, we may recognize that, for many people, there were three other initials that defined the Supreme Court: OWH, standing for Associate Justice Oliver Wendell Homes, Jr. Of course, one hundred years ago there was no Twitter or Instagram. But Holmes was a voluminous correspondent, often signed his letters OWH, and was known by his initials. Oliver Wendell Holmes, Jr. was named after his father, Oliver Wendell Holmes, who was a famous physician and author, known best for his collection of essays entitled “The Autocrat of the Breakfast Table.” Holmes, Jr., attended Harvard College and upon graduation was commissioned as a first lieutenant in the 20th Massachusetts Volunteer Regiment, often referred to as the “Harvard Regiment” because so many of its members had been classmates in college. During his enlistment, the Civil War was raging. Holmes was wounded three times, once at the Battle of Ball’s Bluff in Virginia on October 21, 1861, once at the Battle of Antietam on September 17, 1862, and once at the Battle of Chancellorsville on May 2, 1863. At both Ball’s Bluff and Antietam Holmes survived only because the musket balls just missed his heart and aorta. As a macabre reminder of his escape from death, Holmes kept those musket balls in his safe deposit box until his death.


Dayton Bar Briefs October 2019

After the Civil War Holmes attended Harvard Law School and thereafter practiced law, taught law, and wrote about law. Some of his lectures were preserved in “The Common Law” (1881) a classical book that embodies the common law in this famous quotation:

“The life of the law has not been reason. It has been experience.”

Holmes served on the Supreme Judicial Court of Massachusetts from 1882 until 1902, and then served on the United States Supreme Court from 1902 until 1932, an incredible run of fifty years on the bench at either the highest court in Massachusetts or the highest court in the United States – an incredible accomplishment. There are numerous books about Holmes, including “Yankee from Olympus” by Catherine Drinker Bowen (1944), which was one of the required readings in my first year of law school at Notre Dame. More recently, there is “Oliver Wendell Holmes – A Life in War, Law & Ideas” by Steve Budiansky (2019), a book I recently finished reading. They are both terrific books. He was also the primary subject of a wonderful stage play, “The Magnificent Yankee,” a play I saw performed by James Whitmore at Ford’s Theater in Washington, D.C. back in 1996. I have always been a big fan of Oliver Wendell Holmes, Jr., and not just because we share the

same birthdate, March 8 – different years, of course. His was 1841 and mine was somewhat later. I have enjoyed the fact that one of the cases argued before Oliver Wendell Holmes, Jr., was Dale v Pattison, 234 U.S. 399 (1914), a case with plenty of local connections. First, it was about Mudlick Whiskey, then a very popular brand of distilled rye and bourbon produced by the David Rohrer Distillery in Germantown. (Now, of course, that Mudlick name may have been the precursor of the Mudlick Tap House, a popular local watering hole.)

continued on page 5


TRUSTEES MESSAGE: Three Initials That Defined the Supreme Court, 100 Years Ago continued from page 4 Mudlick Whiskey’s secret to its success was believed to be the special minerals contained in the water it used from the Mudlick Springs in Germantown. Its popularity had grown ever since David Rohrer had taken over the distillery from his father, Christopher Rohrer, in 1861. But in 1914 its growing success was aborted by the Webb-Kenyon Act that prohibited the interstate transportation of alcohol. The consequential demise of the Mudlick distillery resulted in a major dispute between the trustee in bankruptcy and one of the distillery’s lenders over who had the superior lien on 56 barrels of rye and 94 barrels of bourbon stored in a Germantown warehouse. Lee Warren James represented the trustee in bankruptcy and argued the case before the United States Supreme Court. James was then a partner in Coolidge & James, the forerunner of today’s Coolidge Wall firm. While several of us have filed pleadings in the United States Supreme Court from time to time, James remains our only partner who has actually argued a case in front of the United States Supreme Court. Throughout his fifty-year career on the bench, Oliver Wendell Holmes, Jr., wrote more than 2,000 opinions, but perhaps none is more famous than his unanimous opinion in Schenck v. United States, 249 U.S. 47 (1919). In that case the Court approved a limitation on the right of free speech when it presents a “clear and present danger.” That case affirmed a conviction under the Espionage Act of 1917 during World War I. In dicta that same case opined that “falsely shouting fire in a theatre causing a panic” is not protected free speech.


Even today OWH deserves to be recognized as a powerful force in the Supreme Court and recognized as a true legacy in our legal history. Although in many ways RBG and OWH represent very different philosophies of the role of the courts vis-à-vis the role of the legislature and the Constitution, they both are dedicated legal philosophers and jurists who reflected and shaped the consciousness of the Supreme Court during their time.

Grab a Seat and Join the Conversation The DBA Invites you to join one of our 25

Substantive, Advisory or Service Sections at any time throughout the year. Contact Tyler: twright@daybar.org visit daybar.org to join

October 2019 Dayton Bar Briefs


Barrister of the Month

Larry G. Crowell L

arry is the epitome of the saying “still water runs deep.” He worked as an engineer at General Motors for 16 years and married his wife Ruth in June of 1963. They made the joint decision to go to the Peace Corps in the late 1960s. Larry was in a co-op program at GM that permitted him to go to the Peace Corps and return back to his job at GM. In preparation for his travels to India, Larry underwent an extensive eight-week training, learning the language, survival techniques and was fully immersed in the culture. They lived in India for a total of two years. While in India, Larry taught agriculture and Ruth taught applied nutrition and gardening. He said they gave them a medical kit because you “Couldn’t find a doctor”. They had no snake antivenom. When they asked what to do if they got bitten, they were told “Don’t get bit.” He combated a six-foot long highly-venomous cobra in an outdoor latrine. He said, “I can’t begin to count the number of times I squatted over that hole in the floor.” He had to walk a quarter mile just to get water. Then they had to boil it and put it in earthen pots. They took anti-malaria pills once a week and went to the American Embassy every eight months to get vaccinations. They had to take an express train to New Delhi and rode between the cars because there were no seats. Larry said that when he returned from


Dayton Bar Briefs October 2019

India, his attitude had changed. He applied to take the LSAT and applied to Salmon P. Chase Law School which was in Cincinnati at that time. He was told he had to wait a year and he then enrolled at Sinclair and took speedwriting and typing. He started Chase in 1971. He would leave at 5:30pm and drive to Cincinnati. When Chase moved to Northern Kentucky, he had to drive 150 miles round trip three nights a week. It all paid off for Larry in 1975, the year he graduated. He took the Bar in 1975 as well and the day after the Bar exam, he quit GM. With a slight grimace he has said “that cost him a vintage Corvette.” Employees of GM could buy cars at 25% off and he applied to purchase a Vet, however, they had allocated only four Corvettes to his plant. He was then told that he couldn’t get one of the Vets. On his third week, post-resignation, he found out he could have gotten a Vet. Larry and Ruth adopted two children from Lutheran Social Services in 1970. Larry realized that he wanted to spend more time with the children, so he got involved with Indian Guides and Indian Princesses. He said it is now called “Y Native Sons” and “Y Native Daughters.” He said they formed tribes and had eight Fathers and sons in a tribe, or eight Fathers and daughters. Their son Jeffrey Allan graduated from the

Cincinnati Conservatory of Music and was on the Dean’s List. Ten years ago his son began working for Fox 45 as Media Director. Two years ago a “head hunter” found him and he became an instructor for Dayton Public Schools, teaching juniors and seniors audio/video and journalism. He took a team to Columbus, Ohio, for a competition, and his group came in first in the State. Their daughter, Janelle went to University of Cincinnati. He said she received her “Mrs.” Degree after meeting her husband, Geoffrey Bryan, who has a degree in Robotics. They live in Bloomfield, Michigan. Larry and Ruth have four grandkids - two boys and two girls. When they aren’t traveling around the world, they go camping at Dale Hollow, Tennessee. In 1995, Larry bought two jet skis and his brother’s motor home. Larry made the local newspaper in 1998 when he drove his motor home down the ramp to launch the jet skis. One of the jet skis wouldn’t start and he was in the process of hooking cables up to the jet ski. The motor home went in the water and floated out 50 or 60 feet. Ruth started screaming that their dog was in the motor home. Larry swam out to the motor home and ducked under the water and saw the dog paddling in the remaining air space.

continued on page 7


October 2019

BARRISTER OF THE MONTH: Larry G. Crowell continued from page 6

DBA Section Meetings

He rescued the dog. There were about 150 people watching and a dozen boats watching from the lake. One of the people watching had scuba gear and attached a wrecker to the submerged R.V. He had to keep stopping to let the water drain out because it was so heavy. The local paper said “Ohio man takes camper for a swim.” Larry and his wife found a campground called Star Point at Dale Hollow. Larry bought the one trailer they had for sale. He and his brother and others ended up buying the campground, which they still own. It is called “Silver Bell Mobile Home Park.” He said they have a waiting list of people who want to get into the campground. They never have an opening for more than 48 hours. Larry is very proud of the house on Route 48 in Englewood which he purchased and turned into a law office. The house had been in the same family for 95 years. The family ran a saw mill next door and Larry’s office is filled with antiques. When he bought the house, the seller left everything. Larry has started donating historical items to the Historical Society. When asked what advice he would give to new attorneys, he said that if they are confident and want to be independent, they should start their own practice. He said being a sole practitioner is very stressful. It is difficult to get a practice established. He said his wife had to work while he was getting established. Larry has continued to travel all over the world. When asked how long he intended to practice, he said “Until I kick the bucket or can’t think, whichever comes first.”


@ Noon Young Lawyers Division Looking at the next year @ 4pm Estate Planning Trust & Probate The Ohio Trust Code, Part 1

3 7 8

@ 11:30am Public Service & Congeniality @ Noon Juvenile Law @ Noon Labor & Employment Pro Bono Opportunities for Employment Lawyers with Marcie Hunnicutt, Dayton Director & Counsel at Pro Bono Partnership of Ohio and Kathy Miller from GDVLP.

9 10

@ Noon Appellate Court Practice Everything You Wanted to Know About Amici But Were Afraid to Ask. @ Noon Domestic Relations @ Noon Real Property

14 17

@ Noon Federal Practice @ Noon Workers Comp & Social Security @ 4:30pm Civil Practice & ADR


@ 4:30pm Corporate Counsel

Medical marijuana and its effect on employers in the coming years.

By Mary KC Soter DBA Editorial Board Soter Law Office


October 2019 Dayton Bar Briefs


Celebrate Pro Bono

YOUR Greater Dayton Volunteer Lawyers Project! By Kelly Henrici, Executive Director, GDVLP By Lindsey C. Posey Social Security Administration, Office of Hearing Operations GDVLP Board President


he Greater Dayton Volunteer Lawyers Project has never been more proud to be at the center of pro bono legal services in our community – together, we are DaytonStrong. You have always given your time, talent and treasure to low-income individuals facing challenging circumstances. And now you’ve reached deeper, as many of you have assisted survivors of the Memorial Day tornados by staffing our document replacement event, where sources of critical documentation proving identity and ownership of property were replaced at no charge by various State, County and Federal organizations, and provided assistance to impacted individuals for property loss, insurance claims, and interactions with unscrupulous contractors. After the Oregon District shooting, some of you have helped victims and surviving family members sort through legal


Dayton Bar Briefs October 2019

needs in their deepest grief. We continue to call on you to Lindsey and Kelly photog serve pro bono those impacted raphed with Karin VanZ ant of CareSource during last years DBA in Dayton’s darkest hours, and Holiday Luncheon ! you never hesitate to answer the call. The VLP’s mission is to provide “innovafor courtroom experience, in a comfortable tive opportunities for attorneys to perform pro bono civil legal services to benefit persons and supported environment? Or do you prefer to volunteer at set, scheduled clinic dates and with limited financial resources.” The community benefits because we make the focus on times, supported by training and subject matter experts? Whatever your interest and availyou, our volunteers, by developing pro bono ability, we have pro bono opportunities suited initiatives tailored to your interests. Want to to you. use the talents you use in your daily practice, and extend it to the pro bono community? Or continued on page 9 are you looking for mentorship and support as you learn about a new area of the law? Do you prefer to take on individual clients, whether in litigation or non-litigation matters, and in particular areas of the law? Are you looking


YOUR Greater Dayton Volunteer Lawyers Project! continued from page 8 Last year, VLP volunteers donated more than 4,000 hours in our seven county service area that includes Montgomery, Greene, Clark, Darke, Miami, Champaign and Preble counties. Here are just a few of the opportunities available:

1. Domestic Relations. Attorneys looking for courtroom experience but without the technology and firm resources should consider this option. VLP staff paralegal Kathy Miller takes care of client scheduling and communications, and produces all paperwork. You visit our offices, meet with the clients and have the complaints signed, and then Kathy takes care of filing, service of process, and producing final decrees. In Montgomery County, the Court schedules all of your clients sequentially on the same morning for efficiency. Our protocols focus on uncontested divorces but should a matter become contested, it is your decision whether to continue representation or have us engage replacement counsel.

2. Bankruptcy.

VLP only assists with Chapter 7 bankruptcies and staff paralegal Sharon Igli acts as your paralegal throughout the process, similar to our handling of divorce matters. Opportunities are also available for non-attorneys to interview clients about their debts and preparing petitions for filing by attorneys.

3. Juvenile Court Pro Se Clinics.

Volunteers interested in set volunteer times without obligations to clients outside clinic events should consider this option. Surrounded by seasoned volunteers, in no time you can be fully proficient in creating paperwork in custody, support and visitation matters for individuals to file pro se.

4. Debt Collection Defense Clinics.

Seasoned debt collection experts and both attorney and non-attorney volunteers without debt experience are needed for this monthly clinic. The experts “triage” client needs and then other volunteers generate pro se paperwork or letters the clients can use to handle creditors.

5. Employment Matters.

Come to our offices and we will schedule the clients to meet with you for counsel and advice. If a client has claims to pursue, you decide whether to represent the individual or we assign replacement counsel.

6. Probate Matters.

As with employment matters, we schedule the clients to meet with you at the VLP to assess strategy. If appropriate, you provide ongoing services after the initial consultation.

7. Wills/Advance Directives.

Using our standard forms and with staff assistance, you can help low income seniors, individually or in a group setting, have peace of mind that comes from having these important documents.

8. Individual Representation.

Opportunities are available in a wide variety of subject areas such as foreclosure, guardianship (ward only), breach of contract and tort claims.

9. Remote Counsel and Advice.

Do you prefer to serve pro bono from the comfort of your work or home office? In a variety of service areas, we can pre-schedule consultations by telephone or Skype, generally for individuals in the rural counties in our service area.

Our volunteers tell us all the time they get great satisfaction out of helping low income individuals with matters that give them physical, emotional and financial security and well being. If you encounter a difficult client while providing services, we’ll have your back and together figure out a strategy to make the situation right. While most of you get enough satisfaction from the act of volunteering, the Ohio Supreme Court lets you get one hour of CLE for every six hours served through the VLP, up to six CLE credits per biennium. And please know that our malpractice coverage covers your efforts through the VLP, and is primary of you are already covered. The American Bar Association has designated October as Celebrate Pro Bono month and with everything our community has experienced these last few months, it is the perfect time to celebrate you, our volunteers, and thank you for all you do and will continue to do through the VLP. We hope you will RSVP to the DBA’s invitation to the Inn of Court event on October 22nd. The VLP will, thanks to generous support from the Eichelberger Foundation, will host all DBA members as we welcome our keynote speaker, Cheryl Zalenski Falk, the Director of the Center for Pro Bono at the ABA and leader of its Standing Committee on Pro Bono and Public Service. Kelly Henrici, VLP Executive Director, is always happy to explore the best fit for your interest in serving pro bono. Please check out our website, at www.gdvlp.org to learn more about volunteer opportunities. Or, call her at (937) 461-3857 or email Kelly@gdvlp.org. She’s always happy to meet for coffee, too!

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October 2019 Dayton Bar Briefs


Estate Planning Trust & Probate Law

Pop Quiz :

Estate Claims – Who Wins? Nursing Home or Medicaid?

Extra Credit:

Can the Estate Pay for the Appeal? By Edward M. Smith Chair: Estate Planning Trust & Probate Law Section Nolan Sprowl & Smith


ccasionally, a case comes along that seems counterintuitive. In Probate Court, we have a statute which sets the priority of claims. Ohio Revised Code Section 2117.25 should be consulted in just about every estate you handle. One of the many duties of a fiduciary is to settle the debts of the decedent and determine priorities under that section. Often there are competing claims with different priorities in an insolvent estate. Under the claim statute, the nursing home claim has priority over the Medicaid claim.1 Yet, in the Estate of Margaret Edwards, it did not. For nursing homes, this is the painful holding of Wiesenmayer, Admin v. Vaspory, Case No. 27931 (2d Dist. 2019). Shortly after Margaret Edwards died in 2016, Ohio Department of Medicaid (ODM) filed a “Medicaid lien” against her real property in Harrison Township, acting pursuant to Section 5162.21, the state recovery program. In the meantime, the nursing home’s attorney applied to be


Dayton Bar Briefs October 2019

appointed special administrator to present a claim against the estate. The Montgomery County Probate Court appointed Wiesenmayer. After the special administrator was appointed, ODM likewise filed a claim against the estate. The Administrator then filed a land sale action. When the Administrator came to distribute the proceeds, he sought clarification from the Probate Court on the priority of claims. The Court found that the Medicaid lien was valid under Section 5162.21, even though filed after death.2 The lien therefore attached to the proceeds of the land sale and was not governed by the priorities of the claim statute, Section 2117.25. The Administrator then appealed the Probate Court’s decision that the Medicaid lien was paid first out of the land sale proceeds. In an Opinion authored by Judge Michael Tucker, the Court of Appeals held that Sections 5162.21 and 5162.211 authorized ODM to file a lien after death and

that ODM was entitled to priority due to the priorities established by the land sale procedures in Sections 2127.18, 2127.19 and 2127.38. Therefore, the Probate Court’s determination was affirmed. Judge Jeffrey Froelich authored a lengthy dissent on the basis that the post-death recording of the lien was not valid and that the current statutory language does not support the imposition of post-death liens. Judge Froelich therefore concluded that the claim statute governed, and the nursing home should be paid first. Judge Michael Hall concurred in Judge Tucker’s Opinion but added that there is a good reason for the statutory preference when there is real estate, since

continued on page 11 ENDNOTES: 1 Ohio Revised Code Sections 2117.25 (A) (7) and 2117.25 (A) (8), respectively. 2 The nursing home claimed the lien was not valid and did not attach to the real estate since it was filed post-death.


Pop Quiz: Estate Claims – Who Wins? Nursing Home or Medicaid? Extra Credit: Can the Estate Pay for the Appeal? continued from page 10 it is an exempt asset, often the major asset. It is usually the only asset remaining after the Medicaid recipient’s “spend-down”, thus justifying the preferential treatment. This case illustrates the complexity of Medicaid law, and the inter-action of federal and state statutes regulating Medicaid law and the Probate Code, with seemingly contradictory purposes. However, the primary purpose of the estate recovery program, mandated by federal law, is to reimburse the state’s Medicaid lien. What about the decedent’s burial expenses? In a land sale, the proceeds are distributed in accordance with Section 2127.38. The land sale procedure allows costs and expenses of the fiduciary and attorney fees for the land sale. Under Section 2127.38 (C) (1) (b), creditor claims can be satisfied after liens and mortgages. In effect, the law creates a super-priority for an unsecured claim by turning it into a secured claim because of the reasoning outlined by Judge Hall. Many certified elder law attorneys also dispute this holding.3 The extra credit question may be easier. After requesting the Court for instructions on the distribution of the proceeds, the Administrator had his answer from the Judge. Of course, since he is also Administrator of the Estate and an attorney who applied on behalf of the nursing facility, he did not like the result. The Administrator filed an appeal, which we now know he lost. At this point, he believed it was crucial to file an appeal to the Ohio Supreme Court, and for the attorneys to get paid. The Administrator filed a Motion for Payment of Attorney Fees and Authorization for Additional Attorney Fees for Supreme Court Appeal.

Should attorney fees be paid?

The Probate Court then analyzed the duties of the fiduciary. “The Administrator’s role is not to act to protect the interest of one creditor when that interest is in opposition to the interest of another creditor.”4 The Administrator’s actions to request the Court’s decision on the priorities was proper, but once that issue was determined “the role of the fiduciary was satisfied.”5 However, by deciding to appeal the Court’s decision on the priorities, the Administrator became an advocate for one creditor over the other. “This Court finds that this action was not for the benefit of the estate as a whole, nor the creditors of www.daybar.org

DAYTON Bar Association



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.

To Apply: Jennifer Otchy,DBA Executive Director Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org this estate as a whole and, therefore, was outside of the Administrator’s fiduciary duty.”6 Therefore, the application for fees was denied. Fiduciaries of an estate must act in the best interests of the estate as a whole, that is, all the creditors and beneficiaries. Thus, when a fiduciary takes actions and his attorney takes actions to assist the fiduciary in actions that do not benefit the estate, neither the attorney nor the fiduciary can be compensated. It is important to keep in mind the awesome responsibility a fiduciary has in administering an estate and that conflicts of interest need to be addressed and resolved up-front. The Edwards Estate and the attendant litigation clarified the priorities in the instance of a Medicaid lien in the Second District. This area of law is constantly changing, and it is advisable for attorneys to seek specialized counsel in many cases. Stay tuned for any changes and attend the Dayton Bar Association Elder Law Seminar on October 29, 2019. We invite all attorneys to also attend the DBA monthly meetings of the Estate Planning, Trust & Probate Law Section. They are normally held on the first Wednesday of each month at 4:00pm at the Dayton Bar Association Seminar Room. Each meeting offers one hour of CLE credit for a nominal cost of $25. In March, the DBA Estate Planning,


Trust & Probate Law Section presents its Annual Probate Law Institute. The Insitute will be held on March 6, 2020. There will be excellent speakers. Save the date now. We look forward to seeing you soon. ENDNOTES: 3 The author is not a certified elder law attorney. 4 Entry filed June 21, 2019 in the Estate of Margaret S. Edwards, Case No. 2016 EST 01086 and Case No. 2016 MSC 0402, Montgomery County, Ohio Probate Court at page 2. 5 Id. 6 Id. at 3.

DBA Annual

Probate Law Institute 3.6.2020

October 2019 Dayton Bar Briefs


Celebrate Pro Bono

This photogra Appreciation (from left to ri Kermit Lowery Dave Horn, Bo

Introducing Pro Bono Partnership of Ohio …

Attorneys Strengthening Nonprofits

By Kermit F. Lowery, Vice President & Head of Legal for North America, Lexis Nexis


hanks to the generous support of the corporate and legal communities in our region, we are pleased to formally announce the arrival of Pro Bono Partnership of Ohio (“PBPO”) to the Dayton community. The Dayton legal community has a long history of giving back to the community through pro bono legal services. With the assistance of our corporate and law firm supporters, PBPO has expanded the types of volunteer opportunities available to attorneys and is poised to make a major difference in our community by helping attorneys help 501(c)(3) nonprofits with non-litigation matters. Nonprofit social service agencies here in Dayton face many of the same business issues as for-profit companies. They have legal questions about real estate, personnel, corporate governance, contracts, tax, and intellectual property matters. However, decreased funding along with increased demand for their services have left these nonprofits serving the neediest members of our community without the resources to address their legal needs. PBPO’s mission is to strengthen our community by engaging attorney volunteers to provide nonprofits with free legal services tailored to their non-litigation business needs. It does this by recruiting transactional attorneys from major corporations and law firms to donate their time and expertise on behalf of our nonprofit clients. This in turn enhances the ability of nonprofits to serve low-income or disadvantaged people and improve conditions in our community without having to divert precious funding away from their critical missions and helping others.

History of the Pro Bono Partnership of Ohio

PBPO is the third Pro Bono Partnership (“PBP”) nationally, with other PBP’s established in New York, Connecticut, New Jersey, and Atlanta. In late 2013, attorney Breck Weigel (GE Aviation) met with many supporters of PBP in New York. Inspired, Breck believed that 12

Dayton Bar Briefs October 2019

By Mark R. Chilson Pro Bono Partnership Board Member By Erin Childs Pro Bono Partnership

the southwestern Ohio area could be an excellent market given the area’s significant number of Fortune 500 legal departments, first class law firms, and the community’s rich history of giving. Early on, Breck enlisted help from the largest companies in the area to determine whether Cincinnati and Dayton could support its own PBP. This “Steering Committee” included representatives from GE Aviation, Proctor & Gamble, AK Steel, Western & Southern Financial Group, Fifth Third Bank, RELX, The E.W. Scripps Company, Kroger, Macys, Worldpay, and Duke Energy Corporation. More recently, PBPO added CareSource, Dayton Power & Light, LexisNexis, Mercy Health Foundation, Total Quality Logistics and VonLehman to its growing list of corporate supporters. Kermit Lowery, Vice President & Head of Legal for North America at Lexis Nexis, and a member of PBPO’s board of directors, expressed how PBPO is different from other pro bono organizations, “First, PBPO does not represent individuals, nor does it provide any litigation services so it creates volunteer opportunities for transactional attorneys or non-litigators interested in pro bono services. PBPO continues to support, partner with and refer to the other pro bono organizations, such as the VLP for such matters and the VLP refers nonprofits to the PBPO.  Second, PBPO does not provide services to any nonprofit that can afford to pay for legal services

continued on page 13


Attorneys Strengthening Nonprofits continued from page 12

without significant impairment to its program services, so we are not upsetting the legal market for practitioners that represent nonprofits. Third, in order to receive pro bono legal services, the nonprofit must be able to demonstrate that it is actually assisting low-income or underserved individuals and significantly enhancing the quality of life in Dayton neighborhoods through substantive human interaction.  There must be a demonstrable positive impact on our community, and this is the most important issue to me.” Next, the Steering Committee reached out to local law firms for support. To date more than 20 law firms in Cincinnati and Dayton have pledged both financial and volunteer attorneys to support PBPO’s mission. The law firm community is critical to the success of PBPO. PBPO went “live” in late 2014 aph is from a recent PBPO Volunteer in Cincinnati and thanks to a event and includes Board Members generous grant from the Dayton ight): Mark Chilson, Michael Moeddel, Legal Heritage Foundation of y, Ed Babbitt, Breck Weigel, John Huber, the Dayton Foundation, PBPO ob Ringel, Susan Whaley and Phil Smith. has now expanded into Dayton. PBPO hired Marcie Hunnicutt as its Dayton Director and opened an office downtown in donated space inside of Bricker & Eckler, LLP.

Meaningful Volunteer Opportunities for Transactional Attorneys

PBPO’s goal is to make it easy and enjoyable for local attorneys to volunteer. PBPO’s volunteer opportunities are uniquely structured to suit busy in-house and law firm attorneys specializing in non-litigation practice areas. Matters are pre-screened, discrete, manageable, and generally not subject to time deadlines. Liability insurance is provided for all volunteer attorneys. A broad range of projects are available in areas including:

• • • • • • • •

Contracts Employment Law General corporate issues Corporate governance Intellectual Property Real Estate Finance Mergers, bankruptcies and dissolutions

Also, since a volunteer can generally find a project within his or her practice area, no formal training is needed. Registration as a volunteer simply allows the attorney to receive PBPO’s monthly “Volunteer Opportunities” e-mail listing available projects; there is no further obligation to take a project. The attorney can let PBPO know if there is a matter they would like to be assigned. Attorneys can also help with research projects, writing short articles for PBPO’s newsletter and website, answering brief resource calls, and presenting at educational workshops for nonprofits.

PBPO’s Impact

Since 2014, PBPO has provided legal services to 200 nonprofit organizations on over 1000 legal matters. In addition, PBPO’s legal staff and attorney volunteers provide educational outreach focused on helping nonprofit executives, staff and board members identify and address important legal obligations, adopt best practices, and avoid risk. www.daybar.org

In Dayton, PBPO has strong partnerships with the Dayton Metro Library and the Miami Valley Nonprofit Collaborative. Through these and other partnerships developed over the past 4 years, PBPO has supported more than 72 educational seminars and webinars in Dayton and Cincinnati to nonprofit leaders and their board members.

Financing PBPO

PBPO provides all services without charge through the generous support of donors and the volunteer service of members of the legal community. PBPO thanks those law firms and corporations that have helped PBPO get started. Donor support plays a pivotal role in PBPO’s success and ability to grow and service even more nonprofits. If you, your company, or law firm would consider supporting PBPO, please contact us.

How to Volunteer

We encourage you to visit our website (www.pbpohio.org) and fill out a Volunteer Application. Additionally, if you are on a nonprofit board or affiliated with a nonprofit, please tell them about us and the services we provide. They can fill out a Request for Legal Assistance on our website. Please contact Marcie Hunnicutt, Dayton Director, directly at (937) 396-2131 or marcie@pbpohio.org

upcoming Chancery Club Luncheons Join us monthly on our new date - Thursdays! These luncheons will be held at The Old Courthouse. Great speakers & topics, delicious catered lunch, networking & discussions! The DBA would like to thank the Eichelberger Foundation for its generosity with sponsoring these luncheons.

Remaining Chancery Club Luncheon Dates:

October 3rdth November 7nd January 2 th February th6 March 5nd April 2 May TBA

October 2019 Dayton Bar Briefs


C ontinuing L egal E ducation inter 19 Fall/W 0 2 l l u F t e Check Ou ning Guid s! CLE Plan offering E L C f o t plete lis with com

egister Today to R ck! e n li n O o G one easy cli for CLEs in ar.org/cle yb er: www.da Regist

uing ContlinEducation Lega

/cle ybar.org www.da .7902 937.222 _Bar @Dayton iation BarAssoc @Dayton


Tuesday, November 5th | 12:00 - 3:45pm

Writing for Advocates (Video) 3.0 General Hrs M $105 | NM $150 | P $0

Friday, November 8th | 8:30 - 4:00pm

27th Annual DBA Bench Bar Conference Fair Elections VS Social Media @ Sinclair Community College Building 12 5.75 General Hrs, 1.0 Professional Conduct Hr EARLY BIRD SPECIAL Register before October 16th: M $175 | NM $275 | P $30 After October 16th : M $215 | NM $300 | PP $30


Wednesday, December 4th | 9:00 - 12:15pm

Young Lawyers Division Roundup 3.0 NLT or General Hrs M $105 | NM $150 | P $0

Thursday, December 5th | 9:00 - 12:15pm

Domestic Relations Potpourri 3.0 General Hrs M $105 | NM $150 | P $0

Friday, December 6th | 12:00 - 3:45pm

Well-Being Skills for the Effective Lawyer (Video) 2.5 Professional Conduct Hr + 0.5 General Hrs M $25 | NM $45 | P$0

Wednesday, November 13th | 4:00 - 5:00pm

2 Part Series: The Ohio Trust Code, Part 2 Estate Planning, Trust & Probate

1.0 General Hr M $25 | NM $45 | P $0 Speakers: James Jacobson Esq.; Kristina Rainer Esq. and Ed Smith Esq. Removal & Replacement of Trustee: Trust litigation Thursday, November 14th | 9:00 - 12:15pm

Ethics Case Law Review and New Advisory Opinions


Wednesday, October 2 | 4:00 - 5:00pm nd

2 Part Series: The Ohio Trust Code, Part 1 Estate Planning, Trust & Probate 1.0 General Hr M $25 | NM $45 | P$0 Speakers: James Jacobson Esq.; Kristina Rainer Esq. and Ed Smith Esq. Creation, Modification and Funding of Trusts: What you need to know. Speakers will present the provisions of the Ohio Trust Code that discuss the creation, modification, amendment and funding of trusts, including the “funding” of current and future trusts.

Friday, October 4th | 9:00 - 12:15pm

Appointed Appellate Counsel Seminar 3.0 General Hrs or 3.0 NLT Hrs M $105 | NM $150 | P $0

Friday, October 18th | 9:00 - 10:00am

The Second Amendment: It’s History and Modern Judicial Analysis (Video) 1.0 General Hr M $25 | NM $45 | P $0

Wednesday, October 23rd | 9:00 - 11:00am

Notary: A Breakdown of S.B. 263 (Video) 2.0 General Hrs M $65 | NM $90 | P$0 | Paralegals $40 | Realtors $25

Tuesday, October 29th | 8:45 - 4:30pm

Annual Elder Law Update

@ Sinclair Community College Building 12 5.0 General Hrs, 1.0 Professional Conduct Hr M $215 | NM $150 | P $30 *Annual DBA Speaker Favorite: Michael J. Millonig, Michael Millonig, LLC 14

Dayton Bar Briefs October 2019

3.0 Professional Conduct Hrs M $105 | NM $150 | P $0 *Annual DBA Speaker Favorite: John M. Ruffolo, DBA Bar Counsel During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences. The Rules and Example cases will be provided to all attendees. Friday, November15th | 12:00 - 3:45pm

Well-Being Skills for the Effective Lawyer (Video)

2.5 Professional Conduct Hr + 0.5 General Hrs M $25 | NM $45 | P$0 Tuesday, November 19th | 9:00 - 10:00am

The Second Amendment: It’s History and Modern Judicial Analysis (Video) 1.0 General Hr M $25 | NM $45 | P $0

Friday, November 22nd | 9:00 - 3:45pm

Criminal Law Certification 6.0 General Hrs M $215 | NM $300 | P $0

Tuesday, November 26th | 8:45 - 4:30pm

Annual Elder Law Update (Video) 5.0 General Hrs + 1.0 Professional Conduct Hr M $215 | NM $300 | P$30 | Print Materials $30

Wednesday, November 27th | 9:00 - 12:15pm

2019 Ethics Case Law Review and New Advisory Opinions (Video)

Tuesday, December 10th | 9:00 - 12:15pm

Federal Practice Update...The Sequel 3.0 General Hrs M $105 | NM $150 | P $0

Tuesday, December 10th | 1:00 - 4:15pm

Real Property Roundup 3.0 General Hrs M $105 | NM $150 | P $0

Wednesday, December 11th | 1:00 - 4:15pm

Judge Langer's Criminal Law Update @ Sinclair Community College Building 12 3.0 General Hrs M $105 | NM $150 | P $0 *Annual DBA Speaker Favorite: The Honorable Dennis J. Langer, Montgomery County Common Pleas Court 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.

Friday, December 13th | 9:00 - 12:15pm

Overview and Update on Juvenile Court 3.0 General Hrs M $105 | NM $150 | P $0 Magistrate Feller will talk Delinquency, Magistrate Bruns on Private Custody Cases and Magistrate Lenski on Dependency, Abuse and Neglect Cases with a caselaw update.

Tuesday, December 17th | 9:00 - 12:15pm

Labor & Employment Roundup 3.0 General Hrs M $105 | NM $150 | P $0 Discussion regarding the differences and similarities between Title VII and the Ohio Civil Rights Act; the causation standards under various employment statutes; the latest 2019 updates; EEOC Civility Training and the #MeToo Movement.

Tuesday, December 17th | 1:00 - 4:15pm

Estate Planning Roundup 3.0 General Hrs M $105 | NM $150 | P $0

3.0 Professional Conduct Hrs 937.222.7902 M $105 | NM $150 | P$0

Friday, November 8, 2019

5.75 CLE Hrs

Sinclair Community College

27th Annual DBA Bench Bar Conference Special Guest Speaker:

The Honorable Judge Jeffrey Sutton US Court of Appeals for the 6th Circuit Jeffrey S. Sutton has served on the United States Court of Appeals for the Sixth Circuit since 2003. Before that, he was the State Solicitor of Ohio and a partner at Jones Day in Columbus. He has argued twelve cases in the United States Supreme Court and numerous cases in the state supreme courts and federal courts of appeal. Judge Sutton served as a law clerk to Justices Lewis F. Powell, Jr. (Ret.) and Antonin Scalia of the United States Supreme Court, as well as Judge Thomas J. Meskill of the United States Court of Appeals for the Second Circuit. Judge Sutton received his B.A. from Williams College and his J.D. from The Ohio State University College of Law.

Fair Elections 2019 Bench Bar C0-chairs: The Honorable Anthony Capizzi Montgomery County Juvenile Court

Cori R. Haper

Thompson Hine LLP


Social Media Friday, November 8th @ Sinclair Community College Bldg 12

Agenda: 8:30-8:45am Welcome and Introductions 8:45-10:15am PLENARY 1: The Honorable Judge Jeffrey Sutton, US Court of Appeals for the 6th Circuit "51 Imperfect Solutions: States and the Making of American Constitutional Law" 10:15-10:30am 10:30-11:30am www.daybar.org

Break Breakout Session I: Court Updates: Juvenile, Probate Court, United States District Court, Civil and Criminal and Municipal Court

11:30-11:35am Break 11:35-12:35pm PLENARY 2: Roundtable Speed Dating 12:35-1:30pm Lunch 1:30-2:30pm PLENARY 3: Social Media

5.75 General Hrs + 1.0 Professional Conduct Hr Register before October 16th: M $175 | NM $275 | P $30 After October 16th : M $215 | NM $300 | P $30

2:30-2:45pm Break 2:45-3:45pm Breakout Session 2: Court Updates: Domestic Relations, Common Pleas Court, Civil and Criminal, Appellate Court October 2018 Dayton Bar Briefs


The Walter H. R Federal Buildin U.S. Courthouse

Celebrating the Nam and the Namesak By Michael N. Rhinehart US District Court, Southern District of Ohio


n June 4, 1980, the Honorable Walter H. Rice spoke of realizing the “impossible dream” after being sworn in as a United States District Judge by the Honorable Carl B. Rubin.1 On that date, hundreds of people packed the large ceremonial courtroom2 located on the ninth floor at 200 West Second Street in Dayton where Judge Rice has since presided for almost forty years. More than a hundred others came to witness the oath office on that date, but the courtroom, despite its spaciousness, simply could not accommodate them.3 Just as his admirers flooded beyond the walls of the courtroom that day, so too has his legacy. Fittingly, then, on Friday, September 6, 2019, another overflow crowd gathered at 200 West Second Street to again honor Judge Rice. This time, the celebration moved outside the courtroom as his family, friends, colleagues, lawyers, and fellow community leaders filled the forecourt and lawn to celebrate as the building — built and first occupied by the federal government in 1975 — received an official name: the Walter H. Rice Federal Building and U.S. Courthouse. The ceremony featured a distinguished lineup of speakers, including Congressman Michael Turner — who led the effort on Capitol Hill to name the building — Chief District Judge Edmund A. Saugus, Jr.; District Judge Thomas M. Rose; U.S. Attorney Ben Glassman; Dayton Mayor Nan Whaley; Dean of Dayton’s Criminal Defense Bar John Rion; and Dayton Board of Education member Dr. Robert Walker. United States Senators Sherrod Brown and Rob Portman, as well as Ohio Governor Mike DeWine, 16

Dayton Bar Briefs October 2019

sent their remarks to honor Judge Rice on the momentous occasion as well. Former Montgomery County Prosecutor Lee Falke, who held that post from 1965 to 1992, served as master of ceremonies for the historic event. Falke served as Judge Rice’s mentor from the beginning of his career as an Assistant County Prosecutor for Montgomery County in 1964. After a stint in private practice beginning in June 1966, Judge Rice returned to the Montgomery County Prosecutor’s Office in 1969 as the First Assistant Prosecuting Attorney under Falke. Judge Rice was subsequently elected to the Dayton Municipal Court bench in November 1969, appointed to the Montgomery County Court of Common Pleas bench in July 1971, re-elected to that post in 1972 and 1978, and then took the federal bench in June 1980. For those of you counting, Judge Rice has now served the Dayton community as a state or federal judicial officer for almost fifty years. In explaining his admiration for his longtime friend and colleague, the Honorable Michael R. Merz, says, “it has been my privilege to be his colleague on the federal bench in Dayton for thirty-five of those years. There are two facets to his judicial character I have come to appreciate most. First of all, he is immovably attached to the rule of law. I have never seen him shy away from reaching a decision based on the law because it might make someone uncomfortable or tread on powerful toes. In other words, he has decided cases ‘according to law, without respect to persons’ as our oath

demands. Secondly, he is a strong defender of judicial independence, particularly in my case the independence of subordinate judges. Some magistrate judges across the country are treated by district judges like law clerks who happen to own a robe. Walter Rice has always treated me as a judge -- a colleague who has a right to make up his own mind on what the law requires in a particular case and to decide the case accordingly. If I am wrong, of course, he will reverse me ‘after thorough de novo review.’” The Honorable Thomas M. Rose, who has served alongside Judge Rice on the federal bench in Dayton since June 2002, shares, “over the last seventeen years, it has become obvious to me that my friend and colleague, Walter Rice, is the perfect example of what a judge should be. He has the judicial temperament, the intelligence, the personal and professional ethics, the courage and integrity, the experience and education and the ability to communicate effectively, as well as the civic and professional responsibility and character necessary. I have been truly fortunate to have such a good friend and colleague.” The Honorable Sharon L. Ovington, who joined the Dayton federal bench in October 2002, adds, “Judge Rice has been a wonderful mentor to me over the years. He is always willing to provide sage advice, and his wisdom has guided me throughout my career. I will be forever grateful to him.”

continued on page 17

ENDNOTES: 1 Wes Hills, ‘Impossible Dream’ Reality: Rice Becomes Federal Judge, DAYTON DAILY NEWS, June 5, 1980, at 13. 2 Id. 3 Id.


Rice ng and e:

ming ke

The Honorable Michael J. Newman, who has served on the federal bench in Dayton since 2011, explains that, “it is a well-deserved and significant honor to have the Dayton Federal Building & Courthouse named after Judge Rice, who has given nearly fifty years to the Dayton community via his significant public service as a judge in both the state and federal courts. Judge Rice’s leadership, volunteerism, and dedication to our community is unparalleled. All of the federal judges in Dayton are honored to work with Judge Rice every day in the building so fittingly named after him.” Judge Rice’s career law clerk, Lisa Woodward, states, “renaming the federal building after Judge Rice is a wonderful way to cement his legacy, not only as a long-serving federal judge, but as a prominent community leader here in Dayton. It is a fitting tribute to his commitment to justice for all, his unending love and compassion for the people of this city, and his lifetime of devoted service.” In detailing the process to name the forty-four-year-old building, Congressman Turner recounted a unanimous panel decision recommending that Judge Rice be the building’s namesake. That panel consisted of a number of Dayton community leaders, including attorneys Merle Wilberding — who chaired the panel — Charlie Faruki, Margaret Quinn, and Kermit Lowery. The subsequent path through Congress consisted of a bipartisan effort and having to work around a House rule prohibiting the introduction of legislation to name federal properties after living persons. To bypass this House rule, Turner, a Republican, worked with Senator Brown, a Democrat, to introduce the legislation in the Senate, allowing the House to “play catch” after the bill passed thorough. To further highlight the bipartisan support of the effort, Congressman Turner emphasized that the legislation honoring Judge Rice, an appointee of Democratic President Jimmy Carter, was ultimately signed into law by Republican President Donald Trump on December 17, 2018. After taking his oath in 1980, the always quick-witted Judge Rice quipped that there was at least one aspect of the Federal Building he would like to see changed.4 Now, forty years on, a lot in this community has changed, much for the better as a result of Judge Rice’s influence and efforts. The artwork adorning the front façade, however, remains, a fact which Judge Rice jokingly pointed to during www.daybar.org

the 2019 naming ceremony as evidence showing the true power of federal judges. On a more serious note, almost forty years after attaining the “impossible dream,” 5 Judge Rice told the overflow crowd on September 6th that he could hardly even imagine having a building named in his honor, much less being one of the few people, if any, in history who went on to continue working there. And, although certain aspects of the Federal Building and U.S. Courthouse at 200 West Second Street remain unchanged since his taking the federal bench, Judge Rice’s influence and dedication to the community has resulted in at least one significant change: the building prominently standing at 200 West Second Street will now, fittingly, forever bear his name. ENDNOTES: Hills, supra. 5 Id. 4

Candid Photos were taken by Terri Rose.

October 2019 Dayton Bar Briefs


Special Events

FREE LUNCH + PARKING INCLUDED! Come join us in Celebration of the opening of the U.S. Supreme Court Session. Each October, the DBA and UDSL collaborate in celebration of the First Monday in October. The purpose of the celebration is to increase awareness among students, attorneys and the public about the Supreme Court's significance.

This event is held on Monday, October 21st, yes, we know, this isn't the "First Monday", however please join us for lunch and program in the Mathias Heck Courtroom in Keller Hall.

About This Years Speaker: The Honorable Judge Kelly

The second woman ever to sit on the Eighth Circuit! On April 24, 2013, the Senate unanimously confirmed Jane Kelly to the United States Court of Appeals for the Eighth Circuit by a vote of 96-0. Judge Kelly has brought much-needed gender and professional diversity to the court, which has jurisdiction over seven states: North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, and Arkansas. As a former career Federal Defender, Judge Kelly has added an important perspective on criminal justice to the Eighth Circuit.

Popcorn,Pizza & A Movie

Friday, October 25th @ 11:30am RSVP to Tyler: twright@daybar.org

@ the CourT

Join us as Judge Wiseman welcomes all to her courtroom to watch the 1993 cinematic classic “My Cousin Vinny.” Two New Yorkers are accused of murder in rural Alabama while on their way back to college, and one of their cousins-an inexperienced, loudmouth lawyer not accustomed to Southern rules and manners--comes in to defend them.

RSVP daybar.org/events/firstmondayoctober

Readers, this is your spot!

The DBA launches our first ever book club this fall. Join us as we meet quarterly for enlightening discussion, comradery and snacks. Participants can come and go as they please – no requirement to read every book or attend every discussion. This year, the DBA will be engaging members with a cross section of literary classics, law-related themes and societal issues. The November DBA Book Club selection: To Kill a Mockingbird by Harper Lee Bring your copy of the book, your opinions, thoughts, and perspectives to the DBA Offices on November 20th. The DBA wants to make this the experience you’ve been hoping for. Drinks and eats provided. You get to decide how you want to enjoy the book club experience!

To Kill a Mockingbird by Harper Lee November 20, 2019 | 4:00pm | DBA Offices 2019-20 DBA Book Club Meetings: January: Devil in the Grove by Gilbert King

March: Hillbilly Elegy: A Memoir of a Family and Culture in Crisis by J.D. Vance

May: Book Club Selection


Dayton Bar Briefs October 2019


Special Events


Honoree Luncheon Thursday, October 17, 2019 | Doors open 11:30am Sinclair Community College, Building 12 RSVP (1) $35 | Table (8) $280 Register! Online daybar.org/honoreeluncheon Call 937.222.7902

Congratulations 2019 Honorees:

Richard Austin

David M. Deutsch

Dennis E. Gump

Ronald D. Keener

James R. Kirkland

Konrad Kuczak

Thomas G. Rawers

Eric Silverberg

Brian D. Weaver

Merle F. Wilberding 19

Will your listing be correct?

2020 Dayton


Directory Content Deadline

November 18th

Production of the 2020 DBA Legal Directory is underway! Don’t miss this chance to make sure your profile photo, office address and contact info are correct.

Advertising Opportunities: Enhance your firm listing | Showcase your areas of expertise | Promote your business via:



Want to keep your listing just as it was last year? Just give us a call or drop us a email

publications@daybar.org | 937.222.7902

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

2019 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

Register as Sponsor Today!

Title Sponsor ($1,000)

• Sponsorship Recognition with Name and logo on marketing materials, programs and signage. • Full page ad within materials. • Sponsorship Recognition with Name and logo in (1) - issue of DBA Bar Briefs monthly publication. • Sponsorship Recognition with Name/Logo on the Event page of the DBA website with a link to your website. • List of all conference attendees for follow up promotion by company. (For one-time use. Does not include email addresses or phone numbers. Promotional piece must be approved by the DBA.) • Opportunity to exhibit in main lobby area and provide company information, promotional flyers, or gifts at conference. • Lunch and registration for (2) at the program. • Sponsorship Recognition in weekly electronic newsletters, Peek of the Week (circulation 1,600) with link to firm website.

Sterling Sponsor ($800)

• Sponsorship Recognition with Name/Logo on marketing materials, programs and signage. • ½ page ad within materials. • Sponsorship Recognition with Name/Logo in (1) - issue of DBA Bar Briefs monthly publication. • Sponsorship Recognition with Name/Logo on the Event page of the DBA website with a link to your website. • List of all conference attendees for follow up promotion by company. (For one-time use. Does not include email addresses or phone numbers. Promotional piece must be approved by the DBA.) • Opportunity to exhibit in main lobby area and provide company information, promotional flyers, or gifts at conference. • Lunch and registration for (2) at the program.

Barrister Sponsor


• 1/4 page ad within materials • Sponsorship Recognition with Name/Logo on marketing materials, programs and signage. • Sponsorship Recognition with Name/Logo in 1-issue of DBA Bar Briefs monthly publication. • Sponsorship Recognition with Name/Logo on the Event page of the DBA website with a link to your website.


October 2019 Dayton Bar Briefs


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 Tyler Wright • Diversity Day twright@daybar.org • Domestic Relations Law Institute 937.222.7902 • Many other CLE programs…inquire to sponsor!


Celebrate Pro Bono

Can the Failure to Pay Court Costs Terminate the Legal Ability to Drive? By Sarah N. Weber Miami Valley Community Action Partnership Legal Clinic


espite lacking authority, courts routinely require payment of court costs before permitting reinstatement of driver’s licenses. Low-income Ohioans are disproportionately impacted by this practice, bearing the brunt of this injustice. The inability to legally drive eviscerates employment opportunities, shatters self-sufficiency, and is often the primary obstacle to successful reentry after serving prison time. In collecting fines and costs, courts hold hostage the legal ability of low- income residents to drive. This collection practice contributes to the vicious and perverse cycle of poverty. The Miami Valley Community Action Partnership’s Legal Clinic was established to address this cycle of poverty by focusing on removing barriers to employment. The legal clinic provides driver’s license reinstatement services to low-income Montgomery and Greene County residents, representing clients until all barriers have been addressed. Integral to this representation is the Legal Clinic’s financial assistance that pays both accumulated fines and court costs. However, only the failure to pay fines triggers a court’s authority to revoke a license – it is not a valid method to collect costs. The U. S. and Ohio constitutions forbid courts from ordering forfeiture of a valid driver’s license or issuing an arrest warrant for failure to pay court costs.i Courts are permitted to order forfeiture of a valid license and block the right to renew or apply for a driver’s license when it issues an arrest warrant.ii In limited circumstances, courts may issue an arrest warrant for failing to pay a fine – but never for failing to pay court costs.iii The distinction between fines and court costs is what matters here. Court costs are a civil debt, whereas fines are a criminal obligation and considered a penalty.iv


Dayton Bar Briefs October 2019

Rhona (Ronni) Lowe, Paralegal; Randall J. Sarah N. Weber, Lega Smith, Legal Clinic Director; l Clinic Attorney.

continued on page 23 ENDNOTES: Id.;Doyle v. Bureau of Motor Vehicles, 51 Ohio St.3d 46, 544 N.E.2d 97 (1990); Strattman v. Studt, 20 Ohio St. 2d 95 (1969); State v. Threatt, 108 Ohio St.3d 277, 2006- Ohio-905, 843 N.E.2d 164; State v. Lamb, 163 Ohio App.3d 290, 937 N.E.2d 833, 2005-Ohio-4741,¶12 (2nd Dist.), citing Section 15, Article 1 of the Ohio Constitution, “No person shall be imprisoned for debt in any civil action.” ii R.C. 4507.091 (Ineligibility for license due to outstanding arrest warrant); R.C. 2947.14 (Hearing on ability to pay fine). iii R.C. 4510.22 (Suspension of license for failure to appear or to pay fine.); R.C. 2935.27(D) (Procedure after issuance of minor misdemeanor citation license forfeiture based on failure to appear or failure to pay fine). iv Id.; City of Strongsville v. Waiwood, 62 Ohio App.3d 521,526, 577 N.E.2d 63, 66 (8th Dist. i


Can the Failure to Pay Court Costs Terminate the Legal Ability to Drive? continued from page 22 To comply with constitutional protections, Ohio law requires courts to segregate what is owed for a fine from that owed in court costs.v Separating fines from costs allows courts to effectuate the constitutionally correct collection method for each. For example, courts, in limited circumstances, may jail a person to collect a fine. If the court utilizes jail time as a method to collect the fine, the constitution requires courts to credit all jail time to this fine amount. Likewise, when a court removes the legal ability to drive to collect a fine, the constitution requires courts to permit drivers to restore their legal right to drive by paying just the fine amount. Some courts will not apply payments to fine amounts until court costs are paid. This practice essentially triples the amount owed before the court is willing to terminate the license block or forfeiture. In a recent legal clinic case, the fine amount required to reinstate the license was $10.00, but the court costs were $115.00. ENDNOTES: 1989). State v. Twitty, 2009-Ohio-5600, (2nd Dist.), Âś34.



October 2019 Dayton Bar Briefs


Celebrate Pro Bono

Coming Up... Access to Justice Awards Celebration! Plans are underway for the 2019 Access to Justice Awards Celebration! The event is scheduled for Thursday, November 14th from 5:30-8pm at the Sinclair Community College Conference Center. The event is an awards program that includes an upscale reception with heavy hors d’oeuvres and beverages. The Central State University Jazz Band will perform. Business attire is appropriate. An attorney and community Individuals and organizations will be recognized for their exceptional assistance to economically disadvantaged people in the Greater Dayton Area. Proceeds from the event will be used to provide free civil legal assistance to low-income residents in the area. “Each year, the Access to Justice Awards Ceremony serves as a venue for lawyers, community members, and clients to celebrate the illustrious leaders of our community, who dedicate their time, knowledge, and energy to serve those among us who cannot afford legal services,” says Cassandra Rice of Porter Wright Morris & Arthur LLP, and co-chair of the event along with her husband Michael Rice of Surdyk Dowd & Turner, Co., LPA. “The event is an opportunity for you, the donor, to take part in building the resources that are necessary to meet the overwhelming legal needs of those who qualify for services,” Michael says. “We hope you will join us on this fantastic night of celebration!” Funds raised through sponsorships and ticket sales for the Celebration! and Justice on Tap! that was held in October, are credited to the 2019 Campaign for Equal Justice. The campaign goal is $200,000 again this year. If received by October 25th, donations from Ambassador Law Firms that undertake the campaign and their colleagues will count towards sponsorship levels for the dinner. Those sponsorships entitle firms to promotions and priority seating at the event. Individual Tickets for the Celebration Cost: 150 for Grand Patron and $100 Patron visit: campaign4equaljustice.org email: kharshaw@ablelaw.org call: 937.535.4432



Dayton Bar Briefs October 2019


From the Judges Desk

The Importance of Civility and Professionalism During Depositions By The Honorable Mary L. Wiseman Montgomery County Common Pleas Court


he phenomenon of the vanishing civil jury trial generates many downstream side-effects. The consequences of civil cases rarely proceeding to trial include, but are not limited to, (1) a paucity of opportunities for less experienced civil trial attorneys to gain invaluable courtroom experience; (2) more experienced trial counsel losing familiarity with courtroom protocols and trial skills; and (3) the loss of the corrective nature of jury and judicial reactions to counsel’s behavior. With the loss of jury and judicial reactions for courtroom behavior, an important gauge for what constitutes acceptable or unacceptable professional conduct has been largely lost. This loss has resulted in the unfortunate, increased likelihood that counsel display a lack of civility, courtesy, and professionalism during depositions. Falsely believing that their indecorous conduct goes unexamined and unregulated, some attorneys misbehave badly at depositions. Counsel should be aware that judges indeed read the deposition transcripts submitted in connection with summary judgment motions, discovery disputes, and other proceedings. Hence, asinine behavior at a deposition is not guaranteed to fly under the judicial radar. When civil cases proceed to trial, the judge often must read the discovery and/or perpetuation depositions, revealing whether counsel have acted inappropriately during that examination. Given the importance of credibility and professionalism in the legal profession, creating the impression that the attorney is obstinate, or obstructionist strikes a hurtful blow to a lawyer’s reputation in the courthouse and beyond. Furthermore, bad habits are hard to control and even harder to break. When a


Dayton Bar Briefs October 2019

civil case ultimately proceeds to trial, the attorney may resort to his or her bad habits developed over years of taking depositions while never going to trial. During trial, the attorney then must control his or her habitual impulse to obstruct, coach, interrupt, beat a dead horse, baselessly object, or display surliness or disrespect. The ability to fully control those bad habits is virtually impossible. Juries, ever mindful and watchful of nuanced courtroom behavior, pick up on those miscues and use them to develop their paradigm for evaluating the facts of a case. Similarly, judges have slim to no tolerance during trial for counsel’s unprofessional hijinks that commonly get deployed at deposition. The best course of action to be adopted by all counsel is to treat all participants in the process, at all times, with the utmost civility, courtesy, and respect. Do not engage in conduct or dialogue that would be inappropriate in the presence of a judge. Do not retaliate. Two wrongs do not make a right. Respond calmly, truthfully, and reasonably to intemperate, untrue, or exasperating comments. Do not use speaking objections that attempt to overtly or covertly coach the witness’s response. Instructions not to answer should be limited to grounds of privilege, work product, or self-incrimination. Objecting to nearly every question, merely because a judge is not present to rule, is not a valuable use of anyone’s time. Instead, preserve your record with appropriate, well-timed and well-founded objections. Never make rude or degrading comments to, or ad hominem attacks on, the deponent or opposing counsel, whether taking or defending the deposition. If the atmosphere becomes tense, then

a break to allow cooling-off can be helpful. Avoid escalation from raised voices, talking over each other, or engaging in an extended point-counterpoint dialogue. Seek judicial intervention if needed, having made a clear record of the objectionable behavior. If less experienced lawyers are present, model the appropriate and effective ways of managing and coping with the difficult or belligerent lawyer. That mentoring will help teach the less experienced lawyer valuable skills and make it more likely that he or she will choose the path of courtesy and professionalism. It can be difficult to take the high road and display the highest ideals of professionalism in the presence of vitriolic aggression or thuggery by opposing counsel. Sometimes, doing so may (at the time) taste like a bitter pill. The salutary, long-term effects of that bitter medicine, however, are well worth the short-term grimace. No long-term benefits accrue from developing a reputation as a difficult jerk. Rather, many benefits flow from having the sterling reputation of a no nonsense, professional, straight shooter. That reputation, skill set, and integrity will serve you well throughout your legal career.


Having an Offsite Meeting? Consider Renting the DBA Facilities!

Additional Member Benefit Low Rates Beverage service available Call to reserve space today! 937.222.7902 The DBA offices are equipped with a variety of meeting and conference rooms for use by our members, law firms, businesses and organizations. Our facilities will accommodate groups as large as 75 people, depending upon set up requirements, and can be reserved with just a phone call. Consider the DBA for all your meeting needs: Depositions, Mediations & Arbitrations, Training, Client Meetings, Firm Events, Retreats and more. Located adjacent to the Schuster Performing Arts Center, the DBA is a convenient walk from the business district and a short drive from anywhere in the Miami Valley. www.daybar.org

October 2019 Dayton Bar Briefs


M embers O n T he M ove Dinsmore & Shohl LLP is proud to announce it has been named to Women Inc. Magazine’s Top 100 Law Firms for Women list. The list celebrates firms that value female representation and leadership and was compiled with data including recognitions, recruitment, community outreach, firm prominence, and more. At the time the list was created, Dinsmore was comprised of 26 percent female partners and 45 percent female associates. To date in 2019 alone, the firm has added 29 female associates, eight female partners, and it has promoted six women from associate to partner. Last year, Dinsmore increased its paid parental leave to 18 weeks, which is a month longer than the national average of large firms.




FARUKI+ is pleased to announce the following: For more info contact John Kendall, Company Contact | 937.227.3723 | jkendall@ficlaw.com Partners D. Jeffrey Ireland and Jeffrey T. Cox have been selected for the 2019 edition of Best Lawyers of America®. In addition, Ireland was named “Lawyer of the Year” for the seventh time in his career. Jeffrey Ireland was named “Lawyer of the Year” for his work in Bet-the-Company Litigation. He is recognized by Best Lawyers in America in the following categories: Advertising Law; Bet-The-Company Litigation; Commercial Litigation; Antitrust Litigation; and Intellectual Property Litigation. Jeffrey Cox is listed by Best Lawyers in America in the category: Commercial Litigation. Partner Erin Rhinehart has once again been named as one of the Dayton Business Journal’s Power 50. Rhinehart leads the firm’s media and communications practice, defends complex class action litigation, and assists with a variety of contract issues, including licensing, distribution, master services agreements, franchise agreements, non-compete issues, development agreements, entertainment, non-disclosure, and non-disparagement agreements. Rhinehart has been with the firm for nearly 15 years; she works out of both the Dayton and Cincinnati offices.



Green & Green, Lawyers is proud to announce that Jane M. Lynch has been selected by her peers to be included in the 2020 Edition of The Best Lawyers in America© for her work in the practice areas of Civil Rights Law and Litigation Insurance. Ms. Lynch represents the dedication of Green & Green, Lawyers to providing effective and efficient commercial and general litigation services to clients throughout Ohio. Green & Green, Lawyers was also recognized in the 2019 Edition of U.S. News – Best Lawyers – Best Law Firms.

Pickrel, Schaeffer, and Ebeling is proud to announce that Brittany A. Doggett recently joined their firm as an Associate, providing assistance in the firm’s Probate and Estate Planning Department. Brittany counsels’ clients of all ages to assure the clients intentions are clearly understood and carried out correctly her goal is to provide the best advice from all different perspectives including tax, business, legal and long-term care options. She prepares Wills and advance directives including Durable Power of Attorney for Healthcare, General Durable Powers of Attorney and Living Wills. When families are faced with the need to appoint a guardian for a loved one, Brittany assists the family throughout all guardianship proceedings in Probate Court.

Effective January 1, 2020 Briggs and Morgan, the fifth largest law firm in the Minneapolis/St. Paul area, is combining with TAFT. The combination will result in Taft consisting of more than 600 lawyers across 12 U.S. offices, primarily in the Midwest. Both firms are known for their sophisticated transactional, litigation and regulatory work for upper middle-market clients. Briggs, known for its outstanding client service with marquee clients such as the Minnesota Vikings and the Minnesota Twins, brings expanded finance, patent litigation, energy, railroad and securities expertise to Taft. Taft’s firm-wide expansion strategy focuses on three key areas: strategic combinations in key markets, lateral attorneys with evolving client needs and organic growth. In 2018, Taft increased its number of attorneys by 10%. With Taft’s unique decentralized leadership structure without a designated headquarters, offices thrive under local leadership while being supported by Taft’s national brand and resources.

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 an 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: www.daybar.org/MembersOnTheMove and are subject to editing. These accouncements are printed as space is available. DBA ADVERTISING: For advertising in the Dayton Bar Briefs or any other DBA Publication- Discount rates are available! Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org 28

Dayton Bar Briefs October 2019


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ATTORNEY DISCIPLINE: On February 14, 2019, DONALD A. DOHENY, JR., was enjoined from engaging in any further acts that constitute the unauthorized practice of law in Ohio, and a civil penalty was imposed. See the Supreme Court's entry in Ohio State Bar Assn. v. Doheny, 2019-Ohio-3326 for additional information.


Downtown office and parking space for lease, utilities included. Supplies, furnishings, conference room and staff negotiable. Boucher & Boucher Co., L.P.A. 937-223-0122 or richard@boucherandboucher.com

DBA Inn of Court Nominations NOW'S YOUR CHANCE TO JOIN! Must be a DBA Member


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.


William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com


JOHN M. MEAGHER, Judge (Retired) Adjustable fees 25 Years Resulting in 2,100+ Mediations 50+ Arbitrations Call 937.604.4840 Jmeagher2@gmail.com


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NOMINATE Now's the time to nominate yourself and/or a fellow DBA Member to join the 2019-20 Inn of Court Session! The DBA Inn of Court and American Inns of Court (AIC) are designed to improve the skills, professionalism and ethics of the bench and bar. The DBA Inn of Court conducts eight meetings per year. Dinner included followed by a 1 hour CLE seminar. The seminars are planned by members of the Inn. Membership is based on years of practice and has four categories:

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October 2019 Dayton Bar Briefs


L aw -R elated O rganizations Dayton Bar Foundation

Help Build Our Foundation. T T

he Dayton Bar Foundation (DBF) is the charitable 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:

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Life Essentials Guardianship Program

- Legal Aid of Western Ohio (LAWO)

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

- Law & Leadership Institute - Wills for Heroes

University of Dayton School of Law


Dayton Bar Briefs October 2019



October 2019 Dayton Bar Briefs


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Profile for Dayton Bar Association

October 2019 Dayton Bar Briefs Magazine  

October 2019 Dayton Bar Briefs Magazine  


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