THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE
September/October 2017
VOL. 31, NO. 5 www.ohiobar.org
Are you ready? OSBA Futures Commission Report helps you plan for the future
Tips for Working with Other Attorneys 10
Judging Therapeutically in a Veterans Treatment Court 20
Trending Legal Tech and New Media 28
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Table of Contents 3
CLE Calendar
4
President’s Perspective
Browse our upcoming live CLE courses
by President Randall M. Comer The OSBA is going “all-in” on inclusion and diversity
Tips: Co-Counseling a 10 Practice Personal Injury Case: Tips for Working with Other Attorneys
by William J. Price
6
Legal Leaders
7
Foundation News
In memoriam, awards and community involvement of OSBA members
Basic guidelines to ensure the co-counsel process runs smoothly
Join us as we recognize excellence in the profession
12
Supreme Court of Ohio Commission on Professionalism: Promoting Professionalism for 25 Years
by Judge Richard L. Collins Jr. Revisiting the major milestones of the Commission and setting goals for the future
Tarzan Taught Me about 8 What Ohio History by Todd Book The first African-American to serve in the Ohio Legislature championed many causes in his short life
Ohio Lawyer Staff Editor: Nina Corbut Graphic Designer: Dan Petrovski Website Editor: Dan Beckley
OSBA Officers President: Randall M. Comer President-elect: Robin Weaver, Cleveland Executive Director: Mary Amos Augsburger
Advertising Sales and Editorial Offices Ohio State Bar Association P.O. Box 16562 Columbus, Ohio 43216-6562 (800) 282-6556; (614) 487-2050 Advertising: ODelGarbino@ohiobar.org Editorial: ncorbut@ohiobar.org Printing: Hopkins Printing
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Lawyer Lifestyle Fall is a perfect time to get outdoors and support your local festivals
Content Advisory Board Judge David Hejmanowski, Chair, Delaware Hannah Botkin-Doty, Worthington Alicia Graves, Cleveland Paul Hervey, Canton Chris Hollon, Dayton
Angelica Jarmusz, Columbus Joseph Ludovici, East Liverpool Christina Spencer, Dayton Judge James Stevenson, Sidney Scott Sugarman, Bexley
OHIO LAWYER SEPT/OCT 2017
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28 Law & Media
16
Trending legal tech and new media for legal professionals
The Movement Report on the Futures Commission
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by Randall M. Comer and Mary Amos Augsburger The OSBA is ready to help you meet challenges and create opportunties
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32
Judging Therapeutically in a Veterans Treatment Court
Here's what OSBA members are doing to improve and advance the legal profession
Top 5 Members weigh in on their go-to marketing tools
Landex Research, Inc. PROBATE RESEARCH
By Ursula Castellano and Dana Scott Serving those who served and saving lives, Veterans Treatment Courts are benefiting many Ohio communities
Missing and Unknown Heirs Located No Expense to the Estate
24 Ohio’s Certificate of Qualification for Employment: Four Years Later The results of Ohio's lift on the mandatory disqualifications for employment and Ohio professional licenses
Editorial Offices
Ohio Lawyer (issn 1097-6493) is published bimonthly by the Ohio State Bar Association, P.O. Box 16562, Columbus, Ohio 43216-6562. Phone: (800) 2826556 or (614) 487-2050. Periodicals postage paid at Columbus, Ohio and additional offices. Ten dollars of dues pays your required subscription to Ohio Lawyer. Ohio Lawyer is published as a service to members of the Ohio State Bar Association through their dues and is not available to nonmember attorneys. Governmental agencies and educational and legal research organizations may subscribe annually for $35. Single copies to members and qualified subscribers are $7.
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©Copyright 2017 by the Ohio State Bar Association. All rights reserved. Any copying of materials herein, in whole or in part, and by any means, without written permission, is prohibited. Requests for reprint permission should be sent to the Ohio Lawyer editorial offices. Editor reserves the right to reject any advertising submitted for publication. While advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication in Ohio Lawyer. Statements or expressions of opinion herein are those of the author and not necessarily those of the Ohio State Bar Association, its officers, staff or the board of editors.
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Artwork Credits
© https://www.shutterstock.com/g/pickingpok © https://www.shutterstock.com/g/Maksym+Poriechkin © https://www.shutterstock.com/g/STILLFX © https://www.shutterstock.com/g/Monkey+Business+Images © https://legalboards.myshopify.com/products/legal-keyboard © https://www.amazon.com/Wordsmiths-Work-Mark-WeaverEsq/dp/1544912595 © https://www.shutterstock.com/g/cammep Ohio Lawyer is published bimonthly by the Ohio State Bar Association.
CLE Calendar
LiveCLE
September 28, 2017
September 13, 2017
Advanced Topics in Commercial Real Estate Video Replay - Columbus, Fairfield, Perrysburg, Akron, Cleveland, Webcast
September 14, 2017
Tackling the Opiate Epidemic: Facts, Representation, Treatment and Court Options - Columbus, Cleveland, Cincinnati, Dayton, Perrysburg, Webcast
September 15, 2017
Marvin R. Pliskin Advanced Probate and Estate Planning Seminar - Lewis Center
September 18, 2017
Succession Planning: Steps to Successfully Transition your Practice - Columbus, Webcast
September 19, 2017
Business Law Conference Video Replay Columbus, Cleveland, Webcast
September 20, 2017
Fiduciary Income Tax - Columbus, Webcast
September 25, 2017
Advanced Workers’ Compensation - Cleveland
September 27, 2017
Litigation Skills - Columbus, Fairfield, Cleveland, Perrysburg, Webcast
October 2, 2017
Learn Family Relations Law from OSBA Specialists - Columbus, Cleveland, Webcast
October 3, 2017
October 16, 2017
Family Law Institute Day One Video Replay - Columbus, Akron, Cleveland, Fairfield, Webcast
October 17, 2017
Insurance Law - Fairfield, Cleveland, Perrysburg, Columbus, Webcast
October 18, 2017
Debt Collection - Perrysburg, Columbus, Fairfield, Cleveland, Webcast
Litigation Section Conference: Winning at Trial - Fairfield, Cleveland, Perrysburg, Columbus, Webcast
October 4, 2017
October 19, 2017
Health Care Law Institute - Columbus, Akron, Cleveland, Dayton, Perrysburg, Webcast
October 6, 2017
Advanced Topics in Commercial Real Estate Video Replay - Fairfield, Cleveland, Perrysburg
October 9, 2017
Contract Law - Cleveland, Dayton, Perrysburg, Columbus, Webcast
October 10, 2017
Environmental Law Update - Columbus, Cleveland, Fairfield, Perrysburg, Akron, Webcast
September 26, 2017
Legal Ethics and Professional Conduct Seminar - Columbus, Akron, Fairfield, Cleveland, Dayton, Perrysburg, Wooster, Webcast
Eastern Ohio Regional CLE - Steubenville
October 23, 2017
Probate Litigation - Fairfield, Cleveland, Perrysburg, Columbus, Webcast
October 24, 2017
Advanced Workers’ Compensation Law Columbus, Webcast
October 25, 2017
Advanced Residential Real Estate Columbus, Fairfield, Cleveland, Webcast
Basics of Estate Administration Video Replay - Fairfield, Cleveland, Perrysburg, Columbus, Webcast
October 26, 2017
October 11, 2017
October 27, 2017
The Art of Negotiation and Settlement Columbus, Cleveland, Dayton, Perrysburg, Webcast
October 12, 2017
54th Annual Midwest Labor and Employment Law Seminar - Columbus
Juvenile Law - Columbus, Fairfield, Cleveland, Perrysburg, Webcast Corporate Counsel Institute - Columbus, Webcast, Fairfield, Cleveland, Akron
October 31, 2017
Advanced Employment Law Video Replay - Columbus, Webcast
October 13, 2017
Law & Media Conference 2017 - Columbus
For more information or to register, go to yourosba.ohiobar.org.
OHIO LAWYER SEPT/OCT 2017
3
OSBA Going “All-In” on Inclusion and Diversity
H
as anyone else noticed lately the amount of litter by the side of our roads? I began to notice it one day while driving and now weeks later, I feel like I can’t travel 50 yards without seeing trash. Also, as an avid cyclist, I tend to assume, rightly or wrongly, that certain makes and models of cars are more respectful of cyclists than others. When on my bike, I brace myself at the site of an older Dodge 4x4 pickup whereas a Subaru wagon seems like a kindred outdoorsy spirit. And, just being completely honest here, when I see a driver of advanced age, my assumption (rightly or wrongly) is that they are going to drive slower than me, and I tend to compensate accordingly. That is, I get my car in front of theirs as soon as I can—hey, there’s another empty beer can!
My point here is not to alarm you about my driving (or cycling) habits, but to provide real examples of how we all wear lenses and see the world based upon what we know—our backgrounds, experiences and interests. The industry term for this is implicit or unconscious bias. We all have it and many of us aren’t even aware we do. In some ways, these implicit biases protect us and help inform our decision making. In other instances, they can hold us back and keep us from connecting in meaningful ways with other people. For years, in the name of diversity and inclusion, lawyers have been encouraged to become more aware of these implicit biases so that we can improve our standing as one of the least diverse professions. While this focus has led to some progress in bringing more attorneys from traditionally underrepresented groups into the profession, the concern now is that they are not staying and that barriers remain when it comes to
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career-enhancing opportunities, like networking, access to decision-makers, mentorship, promotions and getting meaningful work assignments. We are learning that in order to maintain and increase diversity, we must be more inclusive and ensure our office cultures are affording everyone an opportunity to contribute and be their best selves. Kathleen Nalty, the author of Going All-In on Diversity and Inclusion: The Law Firm Leader’s Playbook, likes to say that rather than counting people, our focus must now be on making people count. Kathleen was here at the OSBA in May for a special two-day training session in which we invited bar leaders from around the state to learn techniques for disrupting implicit bias and to actually develop action plans for making their workplaces more inclusive. She also trained the OSBA staff, and then returned in July to train our incoming committee and section chairs. In addition to leveraging Kathleen’s expertise, we were also pleased to work with The Ohio State University Kirwan Institute, which conducted an implicit bias training for us as part of our annual LGBTQ and Allies Conference. These sessions have been extremely helpful and eye-opening for all participants, and we plan to continue offering them in the future. Our Board of Governors has made inclusion and diversity a priority, recognizing that as the largest network of legal practitioners in the state, the OSBA is well-positioned to be an ambassador, convener and educator, sharing all we have learned with our membership and partners. We also see this as a tremendous opportunity to advance the profession, our businesses, our practices,
and ourselves. The ultimate goal is to get to the point where inclusion and diversity are no longer considered strategic initiatives or special programs, but simply part of our profession’s DNA. Emphasizing inclusion and diversity is not only right, it pays real dividends. Studies have shown that when you embrace diversity in the workplace, you disrupt conformity and inspire better thinkers and problem solvers. An inclusive environment also means everyone is more invested in its success. That leads to better work product and healthier bottom lines. In addition, we know that younger generations are much more in tune with diversity and inclusion—enterprising firms will need to demonstrate a sincere commitment to these values in order to attract top talent in the future. Through these trainings we have learned that inclusion not only means breaking down traditional barriers surrounding gender, race, ethnicity, sexual orientation, and disability, but it can also apply to, for example, breaking down barriers between staff and attorneys. I practice in a firm that’s been around for 145 years, and for a very long time, the staff and the attorneys have had separate holiday parties. This year, we’re changing the tradition. We also have made changes to ensure staff are afforded more flexibility in their work schedules, just as the lawyers have had. These may seem like small gestures, but they send a big message that the staff is not only appreciated, but an integral part of the team and its success. Even if you have not yet had an opportunity to go through formal diversity and inclusion training,
there are several simple things we can all do to interrupt our biases and become more relatable to colleagues, clients, potential clients and our fellow human beings.1 •
•
•
Start with questioning your own assumptions—to take my earlier example, just because someone is older doesn’t mean they drive slow. (Take Immediate Past President Ron Kopp for example.) Mix things up—intentionally seek out people and situations you wouldn’t normally encounter. The more uncomfortable you feel, the more potential there is for growth. (On more than one occasion, a dude with a pick-up gave me and my bike a lift when stranded with a flat tire.) Look for commonalities and shared interests—perhaps we both care
about our growing litter problem. •
•
Make more of an effort to see things from other people’s perspectives -we all learned this lesson from the great Atticus Finch who said: “You never really understand a person until you consider things from his point of view…until you climb in his skin and walk around in it.” I couldn’t say it better. And be more vulnerable with other people in general – don’t assume things of others, ask them. And when appropriate, be open with them about your own unconscious biases – just as I did at the opening of this column.
also go a long way in improving the reputation of our profession in general. The OSBA is here to be a resource. For more information about our diversity and inclusion efforts, please visit www.ohiobar.org/diversity.
Endnotes
See more of Kathleen Nalty’s suggestions: “Strategies for Confronting Unconscious Bias,” Colorado Lawyer, May 2016. 1
National Center for the State Courts, 2015.
2
At a time when 56 percent of Americans would prefer to handle their own legal problems rather than engage an attorney2, taking steps to be more relatable could
Manage Your OSBA Report Subscription Tell us what you prefer. Some members have discontinued their print OSBA Report (the Green Book) because they use the daily, e-mailed version. Some members want to be more environmentally sound. Now is your chance to choose what is best for you. We make it easy for you to choose. If you no longer read the print version, please let us know so that we can remove you from the mailing list. Go to https://ebar.ohiobar.org/Preferences and check the box next to "I would like to unsubscribe from the print version of the OSBA Report," or call the Member Service Center at (800) 232-7124. You will continue to receive the daily, e-mailed version, called the OSBA Report Online. SEPT/OCT 2017
Legal Leaders Columbus D. Michael Crites, Dinsmore & Shohl LLP, was appointed to a bipartisan judiciary advisory review commission for the U.S. District Courts for the Southern and Northern Districts of Ohio. James G. Kozelek, Weltman, Weinberg & Reis Co., LPA, was elected chair of the Board of Directors for First Service Federal Credit Union. Acacia Perko, Reminger Co., LPA, was named to the Advisory Board of Commonhouse Ales and co-chair of her firm’s Women’s Initiative.
Cleveland Gregory G. Guice, Reminger Co., LPA, was named Vice President of Diversity and Inclusion for the Cleveland Metropolitan Bar Association. Jeanne M. Mullin, Reminger Co., LPA, was elected to her firm’s Board of Directors. Christine Santoni, Reminger Co., LPA, was named a 2017 YWCA of Greater Cleveland “Woman of Professional Excellence.” Patricia A. Shlonsky, Ulmer & Berne LLP, was appointed to The City Club of Cleveland Board of Directors. Anne Strassfeld, Ulmer & Berne LLP, was elected to the Board of Directors of Neighborhood Family Practice. Paul R. Shugar, Reminger Co., LPA, was selected to the Celina Nonprofit Founding Board of Directors.
In Memoriam 2017
Betty L. Busch; 87, Dayton Jan. 27, 2017 Carl A. Bertoch; 90, Crystal River, Fla. Feb. 28, 2017 George H. Knell; 86, Mansfield March 2, 2017 Michael L. Belcher; 65, Bedford Hts. April 14, 2017 Elliott I. Resnick; 66, Pepper Pike April 15, 2017 Richard L. Rumbaugh; 75, Carrollton April 17, 2017
This column is limited to awards and civic duties. The news listed is edited from press releases that are sent to the OSBA. Other submitted member news, such as promotions and new positions, is featured on the OSBA website. To keep up to date with the most recent member news, visit ohiobar.org/membernews. To submit an announcement for consideration in Member News, please email it to the editor at membernews@ohiobar.org.
C. Nevada Johnson, Jr.; 78, Medina May 21, 2017 Henry W. Davis; 96, St. Petersburg, Fla., June 8, 2017 John E. Primm; 64, Kensington June 29, 2017 Judge Jean Murrell Capers; 104, Cleveland, July 18, 2017 Fred Weisman; 90, Scotttsdale, Ariz. July 18, 2017
Cincinnati
SHIFT YOUR CHANCES OF SUCCESS
Kenneth P. Kreider, Keating Muething & Klekamp PLL, was elected to the Union Village Development Company Board of Directors.
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OHIO LAWYER SEPT/OCT 2017
Foundation News Join us as we recognize excellence in the profession Nominated by their peers, these attorneys’ dedication to service is worthy of recognition and celebration. Please join the Ohio State Bar Foundation on Friday, Oct. 6, as we gather to honor these men and women and share their inspirational stories from the frontlines of the legal profession.
2017 Annual Awards Dinner Honorees: Retired Honorable Evelyn Lundberg Stratton, Columbus The Ritter Award Stephen F. Tilson, Galion Ramey Award for Distinguished Community Service Sisters In Law, Toledo Outstanding Program or Organization Award Michael W. Kelley, Columbus Statewide Community Service Award for Attorneys 40 & Under
To dedicate your gift, call (614) 487-4477 or visit www. osbf.org and click “Donate Now.”
– IN HONOR OF – John M. Curphey Hon. Jack R. Zouhary & Kathleen M. Zouhary
Frank E. Bazler Judge & Mrs. Thomas K. Jenkins
Where: Nationwide Hotel and Conference Center 100 Green Meadows Drive South Lewis Center, Ohio 43035 RSVP: RSVP to Tiffany Patterson at tpatterson@osbf.net or (614) 487-4483 or online at osbf.org/annual-dinner-reservation by Sept. 22, 2017. Cost per person is $75, and seating is limited.
2017 Annual Awards Dinner Sponsors:
Dinner Sponsor
Honor the exceptional, celebrate an occasion or recognize the significant people in your life with a charitable gift to OSBF. Tribute gifts are an easy way for you to support OSBF grantmaking initiative and ensure special colleagues, friends and family receive the statewide recognition they deserve.
– IN MEMORY OF –
When: Friday, Oct. 6, 2017, 6:15 p.m.
Welcome Reception Sponsor Burkett & Sanderson, Inc.
HONOR. REMEMBER. CELEBRATE.
Frank E. Bazler Carol Seubert Marx Judge Ray Pianka Ret. Hon. Colleen Conway Cooney Howard Ramey Reginald S. Jackson Jr. Howard Ramey Carol Seubert Marx Howard Ramey Carmen V. Roberto Anthony Roberto Carol Seubert Marx
Network & Nightcap Sponsor Pam and Andy Storar In honor of Suzy and Tom Moushey
CONNECT WITH OSBF
Gifts made between June 1, 2017 – July 20, 2017
Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation OHIO LAWYER SEPT/OCT 2017
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Statehouse Connection What Tarzan Taught Me about Ohio History TODD BOOK Todd Book is the OSBA Senior Director of Policy and Government Affairs. Just can’t get enough legislative news? Boy, are you in luck! I’m ready, willing and able to present to your office, your county/municipal bar or your favorite local group about legislative developments in Columbus and Washington. The presentation is even worthy of CLE credit if we ask the Supreme Court real nicely. Contact me at tbook@ohiobar.org or (614) 487-4464 to learn more.
I
spend a lot of time at the Ohio Statehouse. Most of that time is spent meeting with legislators and talking about issues important to the OSBA. However, as most lobbyists will tell you, there are significant chunks of time spent waiting for the next thing to happen. One of my favorite places to “kill time” during the lulls in action is the George Washington Williams room. Located in the southwest quarter of the first floor of the Statehouse, it has a few comfortable chairs, a nice horse hair couch, and a giant bust of George
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Washington Williams. The room, named after Ohio’s first African-American state representative, is a fine place to catch your breath. Even though I’ve spent many hours in his room, the extent of my knowledge of George Washington Williams was that he was the first African-American state representative, he was elected from Cincinnati, and he had a magnificent mustache. That all changed when I was thumbing through the movie channels and stumbled on “The Legend of Tarzan” (2016). As I watched, a George Washington Williams, played by Samuel L. Jackson, introduced himself to Tarzan. He informs Tarzan of his desire to expose the evil deeds King Leopold II of Belgium is inflicting on the Congolese in search of profits. He educates Tarzan that the Congo is threatened and that Tarzan must join him to expose this injustice to the world. As I laid on my non-horse hair couch, eating my second bowl of chocolate ice cream (because one bowl is never quite enough) that name—George Washington Williams—bandied about in my head and I started to wonder if my happy place at the Statehouse was connected to the George Washington Williams in the movie. To my delight there is a connection! Although our George Washington Williams never met Tarzan, he was quite an interesting character, and much of his real story is woven into the movie. George Washington Williams was born free in 1849 in Pennsylvania. He must have been a little unruly because he was sent away to a “house of refuge” for undisciplined children. While there, he learned barbering—thereby explaining that magnificent mustache. At the age of 14, he enlisted in the Union Army. After the Civil War, he went to Mexico and fought to overthrow Emperor Maximilian. He returned to the United States in 1867 and continued his military career with a five-year stint serving in Indian Territory. Following his military service, he attended Howard University in Washington, D.C. and the Newton Theological Institute near Boston, becoming the first African-
American to graduate from Newton. He was ordained a Baptist minister and held several pastorates before moving to Cincinnati to study law under Alphonso Taft, father of President William Howard Taft. From Cincinnati, he was elected to the Ohio House of Representatives and served from 1880-1881 as the first AfricanAmerican member of the Ohio General Assembly. George Washington Williams then turned his attention to chronicling AfricanAmerican history. In 1882, he published the History of the Negro Race in America from 1619-1880: Negroes as Slaves, as Soldiers and as Citizens. He followed up in 1887 with A History of the Negro Troops in the War of the Rebellion, 1861-1865. Learning of widespread abuses of the Congolese people by King Leopold II of Belgium, the possessor of the Independent State of Congo, George Washington Williams decided to intervene. In 1889, he met with Leopold, asking the king to stop the abuse of the Congolese. He followed up by visiting the Congo in 1890 to witness the problems firsthand. On July 18, 1890, he wrote “An Open Letter to His Serene Majesty Leopold II, King of the Belgians and Sovereign of the Independent State of Congo,” outlining the complaints and requesting the creation of an International Commission to investigate the inhumane treatment of the Congolese. While traveling back to the United States, George Washington Williams died in Blackpool, England, from tuberculosis and pleurisy. He was only 41 years old. A veteran, pastor, author, lawyer, advocate, and the first African-American to serve in the Ohio Legislature, George Washington Williams was an accomplished man who championed many causes in his short life, and I am proud that Ohio has a place set aside to honor him. I will never look at his room the same. Check it out during your next visit to the Ohio Statehouse.
Educator. Advocate. Leader.
Verna L. Williams, Interim Dean and Nippert Professor of Law University of Cincinnati College of Law
Alumni, join me for Celebration 2017, a day devoted to college updates, the launch of UCNext, and our gala event. Mark your calendar for November 4, 2017. Registration: www.law.uc.edu/celebration2017
Practice Tips
Co-Counseling a Personal Injury Case: Tips for Working with Other Attorneys
WILLIAM J. PRICE William J. Price Elk & Elk Co., Ltd. Mayfield Heights
A
former client is injured in a car accident, holds the other driver accountable and asks for your help. If your firm doesn’t typically handle personal injury claims, you may think there’s nothing you can do for the client. In this scenario, by recommending a co-counsel agreement, attorneys have the opportunity to assist former clients while building relationships with other attorneys and firms. Lawyers who divide fees while working for different firms are required to follow a few basic guidelines to ensure the co-counsel process runs smoothly and the client is satisfied with their representation. As detailed in Ohio Rules of Professional Conduct 1.5(E):
•
•
Fees may either be divided in proportion to the services performed by each lawyer, or each lawyer may assume joint responsibility and agree to be available to the client for consultation. Lawyers wishing to establish a cocounsel agreement must receive the client’s written consent to do so after fully disclosing the identities of all lawyers who will divide the fees and
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OHIO LAWYER SEPT/OCT 2017
whether the fees will be divided jointly or in proportion to each lawyer’s services. •
Unless the court approves the division of fees, the client and each lawyer must sign the written closing statement in any case involving a contingent fee, in compliance with the terms of division (C)(2) of ORPC Rule 1.5.
To avoid confusion or disputes over payment, the terms of your co-counsel fee division should be outlined in the written contingency fee agreement supplied to the client and all parties involved in the case. In the event of a dispute, this document complies with the current case law requiring all terms of payment be set forth in the agreement. Communication is vital for lawyers who assume joint responsibility in a co-counsel agreement. Routine updates should be provided from each attorney to the client and from each attorney to all others involved in the client’s representation. These updates should be formatted in a manner that is simple and easy to understand. The goal of any personal injury case is to obtain compensation for the victim. When discussing these types of cases with the client, referring counsel or family of a deceased victim, it helps to discuss terms as they relate to this objective. When approaching any case, explain how the law, the evidence or any other factors could affect the money they receive at the end of the case. For example, many clients have a difficult time understanding the damage caps established in RC §2315.18 and 2315.21(D). When damage caps are applied to a case, the client is only entitled
to $250,000, or three times the economic damages subject to a maximum of $350,000. These limits on noneconomic damages apply to all cases that do not involve wrongful death, loss of a limb, permanent and substantial physical deformity or an injury that prevents one from caring for themselves and performing life-sustaining activities. If you or your co-counsel determines these caps apply to your client’s case, analyze any case law or fact patterns that may be used to get around the limits and any financial costs associated with pursuing these measures. Throughout these discussions, be sure your client understands how his or her monetary settlement or potential verdict may be affected based on the facts of the case. Maintaining open lines of communication and explaining to your client how laws, rules and other outside factors may affect the possible financial outcome of their case is one of the best ways to avoid unrealistic expectations and unsatisfied clients.
Endnotes 1
O.R.P.C. 1.5(e)(1).
2
O.R.P.C. 1.5(e)(2).
3
O.R.P.C. 1.5(e)(3).
See O.R.C. 4705.15 \(B) concerning written contingency fee agreements. 4
5 See Modern Real Estate Invest. v. McIntyre, Kahn &Krause (2011) 2011-Ohio-3471. 6
O.R.P.C. 1.4 (a)(2).
7
O.R.C. §2315.18 and 2315.21(D).
THE OHIO FELLOWS OF THE AMERICAN COLLEGE OF TRIAL LAWYERS Are Proud to Announce the Induction as Fellows of the College James D. Curphey, Columbus
Thomas M. Evans, Cincinnati
Kimberly Weber Herlihy, Columbus
Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Invitation to Fellowship is extended only after careful investigation of those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, civility and collegiality. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession.
The Ohio Fellows of the American College of Trial Lawyers John M. Adams
Mark R. Devan
David J. Hooker
Arnold Morelli
John D. Smith
Bruce M. Allman
Michael D. Eagen
Lawrence S. Huffman
George J. Moscarino
Randall L. Solomon
John M. Alton
Thomas L. Eagen, Jr.
Bradley Hummel
Martin J. Murphy
Robert G. Stachler
Sandra J. Anderson
S. Stuart Eilers
Jeffrey W. Hutson
J. Michael Murray
Hugh M. Stanley, Jr.
James E. Arnold
Thomas M. Evans
Thomas E. Jenks
John M. Newman, Jr.
Jacob K. Stein
K. Richard Aughenbaugh
Mary Ellen Fairfield
David P. Kamp
Forrest A. Norman
James F. Sweeney
John C. Barron
Charles J. Faruki
Marvin L. Karp
S. Samuel Nukes
Roger M. Synenberg
Robert P. Bartlett, Jr.
Jose C. Feliciano
C. Reynolds Keller, Jr.
James L. O’Connell
Carolyn A. Taggart
Julia R. Bates
Stephen C. Fitch
R. Eric Kennedy
James S. Oliphant
J. Stephen Teetor
Susan Blasik-Miller
Neil F. Freund
Robert M. Kincaid, Jr.
Gary W. Osborne
Paul T. Theisen
James E. Brazeau
Hon. Richard A. Frye
Charles W. Kitchen
Robert G. Palmer
Duke W. Thomas
Kathleen M. Brinkman
Burt J. Fulton
Gerald R. Kowalski
R. Joseph Parker
Kathleen M. Trafford
James F. Brockman
John P. Gallagher
Leo F. Krebs
David Winchester Peck
Robert W. (Buzz) Trafford
Hon. James A. Brogan
Bradford M. Gearinger
Howard P. Krisher
Robert A. Pitcairn, Jr.
Robert C. Tucker
Herbert R. Brown
Louis E. Gerber
Hon. Michael W. Krumholtz
Hon. James M. Porter
Thomas M. Tyack
John T. Brown
Louis F. Gilligan
Jeffrey D. Lingo
William G. Porter
Gregory M. Utter
F.C. Bryan
John P. Gilligan
James A. Lowe
Albert L. Purola
Robin G. Weaver
Daniel J. Buckley
Gerald S. Gold
Damond R. Mace
Alan T. Radnor
Peter H. Weinberger
James E. Burke III
Brett C. Goodson
Rita A. Maimbourg
Gregory D. Rankin
Sam B. Weiner
Thomas S. Calder
L. James Gordon
Rick E. Marsh
Frank A. Ray
John B. Welch
Doreen Canton
Hon. James L. Graham
John E. Martindale
Orville L. Reed, III
Glenn V. Whitaker
David C. Comstock
Thomas M. Green
Robert C. Maynard
Douglas W. Rennie
Thomas J. Wilson
Harry D. Cornett, Jr.
Gordon C. Greene
John F. McCaffrey
Thomas B. Ridgley
R. Gary Winters
Hon. William J. Coyne
David C. Greer
Patrick F. McCartan
Robert J. Rotatori
C. Craig Woods
L. Clifford Craig
C. Richard Grieser
Francis S. McDaniel
Michael J. Rourke
James R. Wooley Elizabeth B. Wright
Paul G. Crist
Richard E. Guster
Kevin R. McDermott
Daniel P. Ruggiero
Richard T. Cunningham
Robyn Jones Hahnert
John C. McDonald
Hans Scherner
Eldon S. Wright
David S. Cupps
Daniel W. Hammer
Bruce B. McIntosh
Niki Z. Schwartz
Hon. Jack Zouhary
James D. Curphey
William Hawal
Patrick M. McLaughlin
Paul O. Scott
Hon. Thomas Patrick Curran
Mathias H. Heck, Jr.
S. Michael Miller
Joseph W. Shea III
John Czarnecki
Kimberly Weber Herlihy
Terrance M. Miller
H. Louis Sirkin
Leon J. Daidone
Thomas W. Hill
James S. Monahan
Stephen A. Skiver
Robert L. Davis
John D. Holschuh, Jr.
J. Michael Monteleone
James A. Smith
Supreme Court of Ohio Commission on Professionalism: Promoting Professionalism for 25 Years JUDGE RICHARD L. COLLINS JR.
O
n Sept. 12, 2017, the Supreme Court of Ohio celebrated the 25th anniversary of the Court’s Commission on Professionalism. Supreme Court Chief Justice Maureen O’Connor was the featured speaker and Supreme Court justices, current and former over the 25 years, were invited to attend. Current and past members of the Commission on Professionalism were also in attendance. Former mentees now serving as mentors in the Lawyer to Lawyer Mentoring Program and mentors who have served during the entire 10-year period of the program were recognized.
Promoting Professionalism
The purpose and value of professionalism is clear. Actively promoting professionalism and educating lawyers has been a focus of the Supreme Court of Ohio over the last 25 years. In 1989, the late Chief Justice Thomas J. Moyer created a committee to study creeds of professionalism and to recommend ways to “raise awareness of attorneys and remind them of their responsibility to maintain a high level of professionalism in relationships with clients, judges and attorneys.” The committee recommended the establishment of a commission to elevate awareness and make recommendations to the Supreme Court regarding professionalism. In 1992, the Supreme Court Rules for the Government of the Bar of Ohio, Rule XV, created the Supreme Court of Ohio Commission on Professionalism. Rule XV states that the Commission was created to “promote professionalism among attorneys.” The Commission’s goal has been to maintain
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“the highest standards of integrity and honor among members of the profession.” The Commission on Professionalism has 15 Supreme Court-appointed members who serve three-year terms. The members include six lawyers, five judges, two law school administrators or faculty members and two non-lawyers from the general public. The Commission has four regular meetings a year, special meetings as needed and conducts many committee meetings as well. The duties of the Commission on Professionalism include promoting, sponsoring, monitoring and coordinating activities, developing and distributing educational materials and recommending methods to the Supreme Court, all related to and enhancing professionalism. The duties also include assisting in the development of law school programs, new lawyer training programs and continuing legal education programs regarding professionalism.
Upholding Standards of Integrity
One concern of the Supreme Court of Ohio in 1989 was that some lawyers were putting a greater emphasis on making money in the practice of law than on treating the practice as a profession. Standards of integrity and honor, along with service to clients and the public, seemed to become secondary to simply making money. Former Harvard Law School Dean Roscoe Pound once defined “profession” as “a group pursuing a learned art as a common calling in the spirit of public service—no less a
public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.” Professionalism has many characteristics, among them honesty, integrity, reliability, responsibility, competence, knowledge, good character, ethical behavior, fairness and justice. Professionalism has many benefits, including maintaining the integrity of the judicial process, enhancing the public’s confidence in the legal system, providing for civil courtroom proceedings, reducing discovery misconduct, increasing the likelihood of cases being settled and improving the quality of professional and personal lives. In 1998, then U.S. Supreme Court Justice Sandra Day O’Connor wrote that “more civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.” To promote principles of professionalism, the Supreme Court of Ohio Commission on Professionalism has engaged in activities and programs, developed educational publications and materials and sponsored forums and symposiums over the last 25 years. The Commission’s members have been dedicated and diligent in performing their duties and have enjoyed the strong support and encouragement of the Supreme Court of Ohio Justices.
Lawyer to Lawyer Mentoring Program
The Supreme Court of Ohio’s Lawyer to Lawyer Mentoring Program was established and has been administered by the Commission on Professionalism. Justice Terrence O’Donnell was previously a member of the commission. After becoming a Supreme Court justice, he actively encouraged, supported and promoted the creation of this program. It began as a pilot program in 2006, and became a permanent program in 2008. Since then, nearly 6,000 new lawyers have participated in, and graduated from, the program. Newly admitted lawyers are paired with experienced lawyers. The formal relationship lasts one year, a prepared curriculum is followed and the mentor’s knowledge and experience is shared with mentees as they transition from law school to the legal profession. Mentors and mentees have certainly benefitted from the program. Currently, 101 former mentees are serving as mentors. Twenty-nine mentors have served in that role during the entire life of the program. The Lawyer to Lawyer Mentoring Program has expanded its curriculum to include the importance of pro bono service. In addition, related activities include “Courthouse Connections,” an opportunity for young lawyers to visit and become acquainted with courthouses, judges and lawyers, and “Give Back 4 Justice,” an informational and networking event promoting pro bono legal services. Events and activities have been held in Cleveland, Columbus and Toledo and the
Cincinnati Bar Association has participated through social media as well. The Lawyer to Lawyer Mentoring Program has been very successful and has been recognized as a premier program by other states. In May 2014, the Commission on Professionalism and the National Legal Mentoring Consortium hosted and held the National Mentoring Conference in Columbus. Participants came from 25 states to discuss and consider how to promote, establish and support successful mentoring experiences.
Promoting Professionalism on and from the Bench
The Commission on Professionalism also established and conducts the “Promoting Professionalism on and from the Bench” program. Judges are leaders in their communities and the legal profession and are expected to establish and maintain the highest level of professionalism. Recognizing this, the Commission presents educational programs at which judges, magistrates and Commission members promote professionalism among lawyers and their peers. Presentations have been made to the Ohio Prosecuting Attorneys Association, the Ohio Judicial College for judges and magistrates, the Ohio Association of Magistrates and the Domestic, Probate and Juvenile Judges Association. In addition, the Commission on Professionalism hosts a biennial Student to Lawyer Symposium, a forum for law school students, professors, attorneys, and judges to discuss how to best prepare the students
for the legal profession. This day-long program provides speakers and materials to present best practices for students to successfully transition to lawyers. In 2014, the theme was “Adapting to New Normals in the Profession” and, in 2016, the theme was “The Resilient Professional: Learning how to Rebound, Adapt and Thrive.” Both programs were well-attended and engaged the presenters and attendees in meaningful, interesting and spirited dialogue.
Materials Highlighting Professionalism
Over the years, the Supreme Court Commission on Professionalism has prepared and recommended various statements and materials that highlight the ideals of professionalism. These statements and materials have been adopted by the Supreme Court of Ohio. Bound in one booklet titled “Professional Ideals for Ohio Lawyers and Judges,” they include “A Lawyer’s Creed,” “A Lawyer’s Aspirational Ideals,” “A Judicial Creed” and “Professionalism Dos and Don’ts.” Also included in the booklet is the Supreme Court of Ohio’s “Statement Regarding the Provision of Pro Bono Legal Services by Ohio Lawyers” and “Statement on Judicial Professionalism.” Drafted by the Commission, the “Dos and Don’ts” series introduced checklists of best practices to guide lawyers in their daily practice of law. The documents include the Dos and Don’ts of Legal Writing, Working with Opposing Counsel and Other Lawyers, Depositions, Professionalism in
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“The meetings have been long, the homework has been extensive, but the ultimate mission, promoting professionalism, has made it all worthwhile.” the Courtroom, Judicial Professionalism, and Conduct of Prosecutors and Defense Attorneys. The Dos and Don’ts series does not regulate or create cause for discipline, but helps promote professionalism among lawyers. They are being referred to by bar associations and attorneys, in courtrooms and law schools and in the staff notes of the Ohio Rules of Civil Procedure. In a joint venture, the Supreme Court Commission on Professionalism and Client’s Security Fund of Ohio developed, and the Supreme Court of Ohio published, “A Consumer’s Practical Guide to Managing a Relationship with a Lawyer.” The information assists clients by describing the duties of the lawyers, the responsibilities of the clients and the remedies should something go wrong in the relationship. The guide is now being translated into Spanish and four other languages.
Events and Resources
To further provide education on professionalism, the Commission has a Speakers Bureau— speakers available for events, seminars and CLE activities to present professionalism programs. The Commission offers the use of materials developed and maintained for other speakers and presenters at educational events as well. More information regarding all of the Supreme Court of Ohio Commission on Professionalism’s programs, publications, resources and activities can be found on the Supreme Court of Ohio website, under “Commission on Professionalism” at www.sconet.state.oh.us/boards/CP. The site includes videos, materials, testimonials and quotations attesting to the success of the commission and the benefits derived from its mission.
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25 Years of Dedication to the Profession
For 25 years, the Supreme Court of Ohio Commission on Professionalism has developed and conducted activities and programs, created and distributed publications and materials, and made recommendations to the Supreme Court of Ohio, all for the purpose of promoting professionalism among Ohio’s bench and bar. The Commission was the third of its kind in the United States and is recognized as being among the best. Many dedicated and hardworking members over the years have contributed to the Commission’s success. The meetings have been long, the homework has been extensive, but the ultimate mission, promoting professionalism, has made it all worthwhile. In the fall of 2012, Lori L. Keating, then Secretary to the Commission and attorney services counsel for the Supreme Court of Ohio, wrote an article published in Ohio Lawyer magazine in recognition of the Commission’s 20th anniversary. In the article, she wrote, “With the support of lawyers and judges, the Supreme Court of Ohio Commission on Professionalism will come closer to its ultimate goal—making its lofty ideals of professionalism the reality of law practice.” Today, now 25 years after the creation of the Commission, full realization of the ultimate goal is even closer. Professionalism is being instilled into the character and conduct of Ohio’s lawyers and judges. The Commission on Professionalism will continue its efforts to achieve and maintain that worthwhile and desired goal.
Author Bio
Judge Richard L. Collins Jr. has served on the Lake County Common Pleas Court, General Division, since January 2002. He has been a member of the Supreme Court of Ohio Commission on Professionalism since September 2013, and currently serves as its vice chair. He received his juris doctor degree and bachelor of arts degree from Ohio Northern University.
Lawyer Lifestyle Is there anything more beautiful than Ohio in the fall? With the changing leaves, the fresh harvests and cooler weather, it’s a perfect time to get outdoors and support your local festivals. Check out some of these festivals that take place in September and October. Harveysburg
Ohio Renaissance Festival Sept. 2 to Oct. 29, 2017 This event features food, drinks and entertainment, including more than 130 arts and crafts shops, stunt shows, knights, comedy and more. The festival takes place in the authentically recreated 16th century English village. http://www.renfestival.com/
Beavercreek
Beavercreek Popcorn Festival Sept. 9 and 10, 2017 Recognized as one of the top 100 events in North America by the American Bus Association, this festival includes a popcorn sculpture, popcorn showers, parade and over 200 booths with festival foods. http://beavercreekpopcornfestival.org
Sugarcreek
Ohio Swiss Festival Sept. 29 and 30, 2017 Located in the “Little Switzerland of Ohio,” this festival features authentic Swiss music and costumes. It also includes Swiss cheese, polka bands, a parade and more. http://ohioswissfestival.com/
Cincinnati
Oktober Zincinnati Sept. 15-17, 2017 Cincinnati’s Oktoberfest is recognized as North America’s largest Oktoberfest and includes 80 booths serving authentic German food, beer, wine, soft drinks and souvenirs. www.oktoberfestzinzinnati.com
Lisbon
Johnny Appleseed Festival Sept. 16 and 17, 2017 Featuring everything from old-fashioned apple butter to apple ice cream, this event features a parade, apple-baking contests, dancing, arts and crafts, music and theater. www.lisbonareachamber.com/jaf.php
Wooster
Wooster Arts Jazz Fest Sept. 16, 2017 This event includes a traditional New Orleans-style parade, live jazz, great food, an art show and free children’s art activities. www.woosterartsjazzfest.org
Waynesville
Ohio Sauerkraut Festival Oct. 14 and 15, 2017 This annual festival has more than 14,000 pounds of cooked sauerkraut and includes unique foods from sauerkraut pizza to fudge and plenty of arts and crafts. www.sauerkrautfestival.com
Circleville
Circleville Pumpkin Show Oct. 18 – 21, 2017 Said to be Ohio’s oldest and largest pumpkin celebration, this festival includes seven different parades and many events, such as a pumpkin toss, pie eating competition and a Big Wheel race. www.pumpkinshow.com
Chagrin Falls
Chagrin Documentary Film Festival Oct. 4 – 8, 2017 Dedicated to educating audiences and empowering talented filmmakers to tell their stories, this festival celebrates the art of documentary film, at venues in and around the century village of Chagrin Falls. www.chagrinfilmfest.org/
Cambridge
Paul Bunyan Show Oct. 6 – 8, 2017 One of the nation’s largest and oldest forest industry shows, attendees will see more than 130 exhibits representing all facets of the forest industry throughout North America. www.ohioforest.org.
Wooster
Colonial Williamsburg Festival Oct. 7 and 8, 2017 Step back 200 years to 18th century Williamsburg, where the Pine Tree Barn is transformed into a bustling colonial village with a militia encampment and period cuisine. Enjoy entertainment and historical presentations from a variety of special guests, re-enactors and more. www.PineTreeBarn.com Information from ohiotraveler.com. Compiled by Tara Eaton.
Millersburg
Holmes County Antique Festival Oct. 7 and 8, 2017 An antique festival that contains a classic car parade, firemen’s parade, grand parade, 25-30 antique dealers, arts and crafts and a 5K run. https://holmescountyantiquefestival.org
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The Future:
How can the OSBA help you navigate all the changes we are experiencing? An overview of the Futures Commission Report RANDALL M. COMER AND MARY AMOS AUGSBURGER It is a critical time to be thinking about the future of the legal profession and how we as lawyers prepare for and address the many challenges we face. The impact of significant global, economic, and societal changes on the delivery of legal services presents challenges to Ohio lawyers, and it is crucial to devise a strategy to ensure we will remain relevant and will be the principal providers of those services in the future. How can the OSBA assist its members in this regard? With this in mind, Past President John D. Holschuh established the Futures Commission, a diverse 29-member Commission charged with identifying the most pressing challenges facing the profession and formulate recommendations for how best to meet them. Past President Ronald S. Kopp then took the baton and asked members of the OSBA to weigh in on difficult issues we face. Through 18 town hall style meetings across the state, he facilitated a robust discussion on the future of the legal profession. Now, after more than a year of intensive work, the OSBA’s Futures Commission has issued its report, has received member feedback, and the Council of Delegates will review it at a special meeting this fall. The report focuses on four areas and provides recommendations that reflect the challenges we face as opportunities to advance the interests of our clients, the general public, and at the same time, our own careers.
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How do we ensure new lawyers enter the profession "practice ready" and help alleviate the crushing burden of student debt? The average 2015 Ohio law school graduate has approximately $98,475 in law school debt.1 Yet, only approximately 58% of Ohio law school graduates are employed in jobs requiring bar passage,2 and a national study shows median law firm starting salaries have dropped more than 40% from 2009 to 2013.3 In addition, without effective mentoring, many of these graduates may lack crucial “practice-ready” skills they need to competently serve clients. Our vision is to ensure that a career in the law continues to be an attractive and viable option for future generations, and that bar associations and law schools will work collaboratively to make law school more accessible, to streamline bar admissions and to improve practice proficiency and management. Some of our long-term solutions include finding a way to lower the cost of legal education by collaborating with law schools, judges, the practicing bar, as well as the ABA to change ABA law school accreditation rules. The OSBA will also advocate for more public funding to support higher education, including legal education and policy changes to implement a student loan/debt forgiveness program.
First steps: • Establish a council of law school deans and lawyers to develop proposals to reduce the costs of legal education, streamline bar admissions and enhance practice proficiencies currently being offered as part of law school curriculum. • Work with the Supreme Court of Ohio to expand student licenses to include second-year students so they can gain real, hands-on experience. • Offer more low-cost practice management resources and skills-based training. • Collaborate with local bar associations to offer more mentoring opportunities to new lawyers. • Continue to offer and expand the OSBA’s Rural Practice Initiative to encourage new lawyers to practice in nonurban areas of Ohio. • Continue supporting the federal Public Service Loan Forgiveness Program.
How can busy lawyers at all stages of their careers get the most out of their required CLE? The legal profession, like many others, is confronting seismic economic, cultural and technological changes. Law schools, law firms, regulatory bodies, and bar associations alike recognize that, to ensure attorneys can adapt successfully, the purpose, content and format of legal education, including post-law school training, must be reexamined. The OSBA’s vision is to ensure busy lawyers can make the most of their required CLE
Access to Justice Gap.
80%
OF CIVIL LEGAL NEEDS OF LOW-INCOME AMERICANS GO UNADDRESSED.
Report of the Summit on the Use of Technology to Expand Access to Justice, Legal Services Corporation, 2013
Building a Comprehensive, Online Legal Portal for Ohio
Legal Aid
Lawyer Referrals
Legal Resources/ Importance of Connecting with a Lawyer
and gain the knowledge, skills, values, habits and traits that will make them successful. The OSBA will continue to offer relevant, content-driven curricula, speakers of unmatched quality and credentials, increased interactivity for live and selfstudy platforms, as well as opportunities to connect and network peer-to-peer and through mentorship. Also, with Ohio facing an opiate epidemic and knowing that so many lawyers struggle with substance abuse and mental health issues, there is a need to educate attorneys on how to recognize the symptoms and seek help when necessary. The OSBA will work with the Ohio Lawyers Assistance Program to make substance abuse/mental health a CLE requirement. The OSBA will focus on providing fewer live CLE program titles and place more emphasis on higher-level institutes that appeal to veteran lawyers, while offering more accessible online courses in shorter increments for all attorneys. This will require working with the Supreme Court Commission on CLE to review how credit is awarded for online options, including shorter segments, such as 15-minute intervals. First steps: • Develop and offer an intensive CLE series that acclimates new lawyers through a fundamental skills-based curriculum, using both live and online platform functionality. • Create a CLE series that focuses on the basics of law firm practice management. • Continue dialogue with the Supreme Court Commission on CLE regarding potential rule changes in light of continuing technological changes.
What is the appropriate role of online legal service providers, and how can they help lawyers better serve clients and stay true to the values of the profession? One major challenge facing the profession is both the perceived and actual cost to the public of securing quality, affordable legal services. Fifty-six percent of the public confronted with a legal problem prefers to resolve it themselves.4 This has contributed to a proliferation of potential new models and alternative delivery options for legal services, some of which may have merit, others, which would require much more discussion and potential regulatory changes, and still others that are in direct conflict with the core values of the legal profession.
These new models include: • Limited scope representation: refers to an arrangement by which an attorney might provide representation for one or more components of a legal matter rather than the traditional full-service model. For example, an attorney being hired for the limited purpose of handling a QDRO in a domestic matter, but not other aspects of the case. • Internet legal services providers: generally offer one or more of the following types of services—the provision and/or preparation of legal forms; the advertising of legal services; lawyer referral or “matching” services; and/or the ranking or rating of lawyers. Examples of internet legal service providers include, Avvo, LegalZoom, RocketLawyer, etc. • Non-lawyer legal service providers: the limited practice of law by non-lawyers in certain circumstances, such as thirdparty administrators who can represent employers in worker’s compensation hearings; New York City’s Court Navigators program, which uses trained and supervised non-lawyers to assist pro se litigants; and Washington state’s Limited License Legal Technicians who assist clients with family law matters. • Innovative models/virtual law firms: attorneys that practice from home or a satellite office. • Limited multidisciplinary practice (MDP) and alternative business structures (ABS): where lawyers and accountants, financial planners and others work in a partnership or collaborative setting and engage in fee-splitting. With more in-depth examination, our vision is to work with the Ohio Supreme Court to modernize Ohio’s Rules of Professional Conduct to provide more guidance to attorneys. This will better allow them to connect with the public, serve their clients and advance their careers, not only through potential cost savings, but also through enhanced practice and business tools, increased transparency, and in complete alignment with the sacred and traditional core values of the profession. Although members of the Commission have serious apprehensions about MDP and ABS, it was recommended that the OSBA work with the Supreme Court to
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establish commissions to study these issues to determine if there are opportunities beneficial to the public and the profession without compromising core values. We will oppose any effort to allow non-lawyers to provide legal services. We will also examine resources and consider deploying them to consult and assist lawyers with innovative law firm models and alternative billing structures that would serve both the attorney and the client. First steps: • The OSBA Professionalism Committee will provide guidance on the use of limited scope representation for civil matters. • Support programs that connect the unrepresented with available attorneys, and oppose any efforts to establish new categories of non-lawyer legal service providers. • Embark on a public relations campaign that educates the public about the importance of connecting with an attorney, especially for common legal matters. • Continue to partner with the Ohio Public Defender Commission on securing increased funding and in increase in hourly rates to support indigent defense. • Fight proposed cuts to the Legal Services Corporation, which provide legal aid funding from federal dollars.
How do we better connect clients with attorneys, regardless of income? Eighty percent of the civil legal needs of low-income Americans go unaddressed.5 At the same time, recent law school graduates struggle to find legal employment, and experienced practitioners search for models and tools that offer competitive prices to those who can afford to pay and still earn adequate income for themselves. For every stakeholder, greater use of innovation and technology must be part of the solution. To meet its dual mission of service to members and to the public, the OSBA must embrace innovation and continue to plan for the future. The Ohio Legal Assistance Foundation (OLAF), Ohio’s statutorily created foundation charged with collection and remittance of IOLTA and filing fee revenues
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to legal aids serving all 88 counties, has undertaken development of a unified legal portal. This web-based portal will direct persons needing legal assistance to attorneys through legal aid or lawyer referral services. The OSBA will be a strategic partner with OLAF and other important stakeholders, in designing, constructing and deploying the portal. The platform will provide user-friendly, reliable and ethical legal information for consumers and include a one-stop triage system to identify a legal problem and direct consumers, be they legal aid-eligible or able to afford representation/ full fee, to the appropriate resource to address that legal problem. The OSBA will also examine the feasibility of developing a robust online lawyer referral service, closely aligned with Ohio’s public portal, to better connect available attorneys with the clients who need them, particularly in rural communities where online referral services do not currently exist. First steps: The OSBA will collaborate with OLAF as OLAF leads the design, construction and deployment of Ohio’s legal portal and advocate for essential features, such as: • An automated triage process that enables site visitors to enter information about their legal problem and be referred to the appropriate legal resource, including bar association lawyer referral services. • Linking to external resources, including bar association lawyer referral services, must be seamless and efficient. • Navigator or live-chat help available for visitors to secure immediate assistance with triage or other portal resources. • An embedded YouTube player for educational videos, including a video on how to determine if a problem is a legal problem. • An introduction to the portal itself and how to use it efficiently and effectively. • A robust compilation of links to state and local courts and other legal informational resources. • A library of legal information by subject, which includes author names and links to author bios.
What’s next for the Futures Commission? There are fundamental values that must be guaranteed and preserved, essential to our status as a sacred and noble profession, including undivided loyalty to the client, competence, confidentiality, transparency, and independence of professional judgment. With these principles in mind, the Commission will present the report to the Council of Delegates in October. Once the Council approves the report, the OSBA will start working the plan. We look forward to serving you, our members, now and in the future. This report helps us do just that.
Author Bios Randall M. Comer is president of the Ohio State Bar Association and an attorney with Martin Browne Hull & Harper, PLL, in Springfield. Mary Amos Augsburger is executive director of the Ohio State Bar Association.
Endnotes Average debt distributions in Ohio law schools found at http://www. lawschooltransparency.com/reform/projects/ Law-School-Financing/.
1
ABA Section of Legal Education and Admissions to the Bar Employment Summaries for 2015 Graduates – summaries for each of Ohio’s schools were reviewed.
2
Bill Henderson, What is More Important for Lawyers: Where You Go to Law School or What You Learned? (Part II) (Legal Whiteboard Blog, July 22, 2015).
3
National Center for State Courts, “The State of State Courts” 2015 Poll.
4
www.lsc.gov/sites/default/files/LSC_ Tech%20Summit%20Report_2013.pdf.
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JUDGING THERAPEUTICALLY IN A VETERANS TREATMENT COURT URSULA CASTELLANO PH.D. DANA SCOTT MSN, RN, RVT, LMT
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V
eterans Treatment Courts (VTCs) are the latest innovation in the problem-solving court (PSC) movement. Modeled after drug and mental health courts, VTCs offer treatment in lieu of incarceration to men and women who served in the U.S. Armed Services. The U.S. Justice Department estimates that there are 463 VTCs nationwide, and Ohio is a leader in this effort. The Ohio Supreme Court now recognizes 21 veterans treatment courts in operation statewide.1 The mantra of VTCs is “serving those who served” and teams of legal, clinical, and judicial professionals who understand military culture and are knowledgeable about VA benefits help participants reclaim their lives. Judges led the grassroots movement to initiate and establish VTCs. Among all the PSCs, participants in veterans treatment courts have the lowest levels of reoffending.2 Despite the demonstrated effectiveness of these programs at reducing recidivism, we have little understanding of what judges do to achieve the court’s objectives. From 2012 to 2016, The Honorable Judge Melissa Powers presided over the Hamilton County Municipal Veterans Treatment Court and developed innovative strategies and successful techniques for the court.
Judge Melissa Powers and Hamilton County Municipal Veterans Treatment Court
Judge Powers served in the Hamilton County Municipal Court from 2006-2016 and the Hamilton County Municipal Veterans Treatment Court from 2012-2016 and is now Judge of the Hamilton County Juvenile Court. She is life-long resident of Cincinnati, Ohio and a graduate of the University of Cincinnati Law School. Powers began her successful legal career as a prosecutor and then began her own
litigation practice, taking on matters of criminal defense among other types of civil cases. In 2006, the Governor of Ohio appointed Powers to the municipal court and she was elected to two consecutive terms in 2007 and 2013. Judge Powers became interested in justiceinvolved veterans after seeing returning combat soldiers from Iraq and Afghanistan in her courtroom. Many were facing OVI charges (Operating a Vehicle under the Influence). Police contacts among combat veterans are often related to the invisible wounds of war, including PTSD (Post Traumatic Stress Disorder), TBI (Traumatic Brain Injury), depression, and anxiety.3 As more cases appeared before her, she concluded, “Traditional probation was not working specifically for the veterans.” In one particular case, an army veteran and purple heart recipient appeared in Powers’ courtroom charged with several OVIs. At his probation violation hearing, she asked why he had not complied with her order to go to the VA for rehabilitative services. Powers vividly recalled, “He explained that he would not and could not go to the VA. That’s when I realized that we needed to bring the VA hospital and treatment providers into the courtroom.” After attending a seminar on problemsolving courts led by retired Ohio Supreme Court Justice Evelyn Stratton, Judge Powers held the first VTC hearing in Hamilton County on April 5, 2012. The team evaluated referrals to the court program on a caseby-case basis, averaging 25-30 participants at any given time. Defendants voluntarily plead guilty and agreed to comply with an individualized treatment plan set forth by the judge and her staff. The routine features of a VTC took a different approach with Judge Powers at the helm. First, she staffed
the treatment team with a vocational rehabilitation specialist since there are higher rates of unemployment among veterans as compared to civilians. Second, the court had a challenging time enlisting former servicepersons in the community to serve as peer mentors. Peer mentoring is unique to VTCs but Powers attributed the trouble to uncertainties about the required time commitment and role expectations. Instead, she recruited a group of veterans to attend court on an informal basis. She said, “Once those boundaries became more flexible, we found more mentors. And they came to court every week.” This casual approach also worked better for participants as Frank5 shared with the court: “Roy has been a valuable resource to me. So maybe he is my mentor. He’s a hard ass and a hero to me.” Third, to tackle the biggest problem the court faced, Powers maximized VA resources to help veterans struggling with heroin addiction. She explained, “Our biggest success came when we started using the substitution therapy (i.e. Suboxone, Methadone, or Vivitrol) so participants had to go the VA on a daily basis.” Critics of treatment courts claim they are “soft on crime,” but Powers strongly countered, “This is not a handout. These veterans work very hard.” In addition to a minimum of 25 court appearances in the first year, participants attended self-recovery meetings (i.e. AA), group meetings at the VA and counseling sessions every week. The court’s target population was veterans with the highest risks and the highest needs. Among justice-involved veterans, 69 percent have substance abuse disorders, 68 percent have serious mental health issues, and 41 percent are homeless or have unstable housing.5 Veterans also struggled to overcome the stigma of arrest, incarceration, and the diagnosis of a mental illness.
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Veterans reported that yoga therapy not only reduced their anxiety in the courtroom but also helped them with insomnia at home. into the courtroom is a wonderful example of how judges can put the core principles of therapeutic jurisprudence in practice. Yoga mats in the center of the courtroom fundamentally transform a place commonly associated with fear and uncertainty into a communal site for courage and transparency.
Letters and Life Plans
This photo was displayed at the Veterans Treament Court curated photography exhibit for Veterans Day.
In a letter to the court, one participant, Michael, compared his PTSD diagnosis to a “disgusting disease.” He worriedly surmised, “If I let someone into my life, they are going to find out about it, whether I want them to or not.” The everyday work of VTCs is achieved in the broader context of men and women facing extreme personal hardships.6
Judging Therapeutically in a Veterans Treatment Court
Problem-solving courts are founded on the core principles of therapeutic jurisprudence (TJ), which is the idea that the law, legal processes and legal actors can be used to help offenders resume productive lives.7 Proponents of TJ draw from the social sciences to develop empirically based techniques to positively impact how people experience the justice system.8 There has been less attention, however, to how courts translate these ideals into effective practices. A cornerstone of Judge Powers’ philosophyin-action is creating safe spaces for dialogue and support both in and beyond the courtroom. We highlight three TJ-inspired strategies that she used to involve veterans in their recovery.
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OHIO LAWYER SEPT/OCT 2017
Mindful Yoga Therapy (MYT)
Each week, while the treatment team met to discuss the cases, Judge Powers required participants to do meditation and breathing exercises with Jennifer Wright, a yoga instructor, in the courtroom. Many participants in treatment courts experience stress on the days when they must report their progress to the judge. While some PSCs attempt to create a more relaxed atmosphere by parceling out small gifts or candy, Judge Powers was one of the first in the country to require veterans to practice mindful yoga therapy. The practice of yoga is an effective alternative therapy for many sources of trauma that place veterans at increased risk for institutional involvement, including combat deployments and personal histories of domestic violence or childhood sexual abuse. However, members of her treatment team and the veterans were not sold on the idea. To compromise, Powers initially made the pre-court yoga classes optional, but few people attended. Then, in 2013, Powers attended a seminar on the success of yoga for addiction recovery.9 From that point forward, the yoga class was mandated for all veterans. Veterans reported that yoga therapy not only reduced their anxiety in the courtroom but also helped them with insomnia at home. Melissa Powers’ pioneering concept of bringing yoga
Like most PSCs, the Hamilton County Municipal VTC was structured by phases that participants must successfully complete before graduation. Aside from certificates and audience applause, Judge Powers took the achievement of these milestones to another level. Letters and life plans were much more meaningful ways to positively impact participants at any stage of the program. Powers surmised, “It reinforced what they’ve learned to themselves, but it also served as a wonderful tool for inspiring other veterans. Each veteran mentored another veteran without them even knowing it.” First, participants had to apply to be “phased up” by drafting a letter with the help of the probation officer, requiring forethought and reflection. This excerpt from Thomas’ letter illustrates the seriousness with which veterans embraced the task: This is an opportunity for me to reveal a piece of myself to those I have grown to trust. The purpose of my treatment is to learn how to live said life with dignity and happiness. I am not there yet, but I am working on mitigating my negative coping skills because ultimately they make me unhappy. I like to think that living with these mental illnesses has given me a unique outlook on the world. So let us delve into the meat and potatoes of my treatment plan. Veterans read their letters in open court. Once a participant successfully completed the three phases, they prepared to graduate. Graduating required participants to develop and present a concrete life-plan for maintaining their recovery. Judge Powers held the life-plan presentations one week prior to the formal commencement ceremony, allowing graduates to openly share
their struggles through the program in ways they might not if family or friends were in the audience. Reading letters and presenting life-plans once again highlights how Judge Powers repurposed the architecture of the courtroom to elevate veterans’ authentic experiences. As constructive activities, letters and life plans exemplify how Judge Powers fostered collective bonding as well as individual accountability for all participants.
Community Service and Individual Wellness Activities
A third essential element of Powers’ judicial approach required veterans to partake in community service and individual wellness activities, which typically began at the second phase of treatment. Judge Powers emphasized its therapeutic benefits: We encouraged community service projects so that the veteran is involved in something larger than himself. I believe hard work is good for the soul. These activities help them to re-learn skills and taught them how to feel good in healthy ways. Judge Powers orchestrated another creative outlet by involving participants in curating a photography exhibit for Veterans Day. The exhibition was composed of photos that veterans generated from their service or a tour of duty. The photographs were publicly displayed in the courthouse lobby. Instead of holding the regular docket in the courtroom, the team and participants went to view the exhibit. Discussion among the veterans occurred organically as they talked about the photographs and their military experiences. The photographs became a therapeutic way for veterans to tell their story. Participants were also required to take on individual wellness activities. Powers explained, “Any hobby that they may have an interest. Some liked gardening, digging, and moving landscape.” She told a story about one veteran, Mark, who struggled with social anxiety and avoided social contact with new people. She encouraged him to tackle this problem by taking small steps. Mark reported to the court that he embraced the challenge by setting up the coffee table for his fellow 12-step meeting attendees. The court filled with congratulatory applause. Powers reflected anecdotally: “It was absolutely amazing to watch the transformation of veterans from when they first started the program to when they started feeling like themselves again. It motivated all of us on the team to make the program stronger and better.” The court’s successes were also empirically supported
by the Ohio Department of Mental Health; researchers conducted a program evaluation and reported a 75 percent reduction in PTSD symptoms among veterans who completed the program.10
Therapeutic Justice, Moving Forward
Judge Powers’ approach to therapeutic justice inside and beyond the courtroom has improved the lives of many participants. Since 2012, 65 veterans graduated from the program with a remarkable 7 percent recidivism rate. In November 2016, Judge Powers was elected to the Hamilton County Juvenile Court, which means her groundbreaking methods for judging therapeutically in the veterans treatment court are left in the hands of her successor. Melissa Powers leaves an important legacy: teachable practices that judges can implement in all types of treatment courts. Ultimately, the goal of problem-solving justice is helping participants to reclaim their lives and renew their spirits.
Author Bios Ursula Castellano, an associate professor of sociology at Ohio University, is the producer and project manager of the Veterans Treatment Court Photography and Video Project, which is partially funded by OSBF. She researches court-based alternatives to incarceration, authored Outsourcing Justice and is writing a new book on mental health courts. Dana Scott, assistant professor of nursing at Ohio University Southern, has 33 years of experience in nursing including emergency department, supervisor, cardiovascular, and teaching. As a mother of a returning combat soldier, she is now an advocate for justiceinvolved veterans. Her future research examines recidivism rates in Ohio VTCs.
Endnotes Ohio Specialized Dockets Certification Status Sheet (Last updated Dec. 29, 2016). Available at http://www. supremecourt.ohio.gov/JCS/specDockets/certification/ statusSheetCty.pdf.
1
See McGuire, Jim, Sean Clark, Jessica Blue-Howells, and Cedric Coe. 2013. An Inventory of VA Involvement in Veterans Courts, Dockets and Tracks. Available at: http://www.justiceforvets.org/sites/default/files/files/ An%20Inventory%20of%20VA%20involvement%20 in%20Veterans%20Courts.pdf.
2
The public media narrowly frames the problem of incarcerated veterans as returning Operations Iraqi Freedom (OIF) and Enduring Freedom (OEF) combat soldiers. While this recent generation of veterans deserves special care and attention, as a group, they are not overrepresented in American jails and prisons. According the 2015 BJS report, veterans discharged between 2001 and 2012 accounted for just 13 percent of veterans in prison and 25percent of veterans in jail. Notably, this same report found that two-thirds of veterans in prison (67percent) and jail (66percent) were discharged from military service between 1974 and 2000. In addition, most justice-involved veterans reported serving in noncombat roles, with only 31percent of veterans in jails had been in combat during their military service.
3
The names of participants have been changed to protect their identity.
4
See Veterans Justice Outreach Program: VA Could Improve Management by Establishing Performance Measures and Fully Assessing Risks (April 2016). Available at: http://www.gao.gov/assets/680/676861.pdf.
5
The court faced a challenge finding residential treatment opportunities for women veterans and their children.
6
See Winick, Bruce J. and David B. Wexler, eds. 2003. Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham, NC: Caroline Academic Press.
7
See David B. Wexler, New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence ‘Code’ of Proposed Criminal Processes and Practices. 7 Arizona Summit Law Review 463 (2014). Available at: https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2065454.
8
See Rinehart, Bill. Veterans Find Solace in Yoga. WVXU (Dec. 17, 2014). Available at: http://wvxu.org/ post/veterans-find-solace-yoga#stream/0.
9
10 For the full report, see Knudsen, Kraig and Scott Wingenfeld. 2016. A Specialized Treatment Court for Veterans with Trauma Exposure: Implications for the Field. Community Mental Health Journal 52(2): 127-135.
OHIO LAWYER SEPT/OCT 2017
23
Ohio’s Certificate of Qualification for Employment: Four Years Later By Joann Sahl
E
very day one in six Ohioans, or 1.92 million people, face the challenges of having a criminal conviction. They encounter civil legal restrictions imposed by law that prevent them from getting a job, finding housing or going to college. These legal restrictions or civil disabilities are called “collateral consequences” because they are not part of the original criminal sentence. Rather, they are disabilities that occur after the criminal sentence ends. They “purport to control and restrain people not for what they have done, but what they might do.”1 The reach of collateral consequences is extensive, and these consequences, “have demoted 8.6% of the adult population to lesser legal status.”2 In 2009, the Ohio Justice and Policy Center, in collaboration with the Ohio Public Defender, launched the Ohio Civil Impacts of Criminal Convictions (CIVICC) database.3 This database has identified more than 1,600 collateral consequences in Ohio law. Similar tools exist for other states and the federal government. The National Inventory of Collateral Consequences has identified 48,155 civil consequences existing in state laws across the country.4 Recently, the Collateral Consequence Resource Center launched the Compilation of Federal Collateral Consequences to capture the collateral consequences imposed by federal law.5
The Impact on Ohio
The collateral consequences in Ohio law are far-reaching. More than 600 of the collateral consequences affect a person’s ability to get a professional license. Some examples include a building trade contractor’s license
24
OHIO LAWYER SEPT/OCT 2017
to be an electrician or a plumber, installing a manufactured home, being a registered or licensed practical nurse, being a certified public accountant, architect, landscape architect, auctioneer, dental hygienist, optometrist, optician, engineer and surveyor, veterinary technician or a dietician.6 Courts recognize that collateral consequences have a lifelong impact on those with criminal convictions. The Ohio Supreme Court has acknowledged that there are “various statutory and societal consequences attaching to a felony conviction,”7 and these consequences are “severe and obvious” and impact a “person’s reputation and economic and social opportunities.”8 Even worse, it may not be necessary to have a conviction to be plagued by collateral consequences. As Justice Sotomayor explained in a recent dissent, just having an arrest record, with no conviction, can have devastating civil consequences. “Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check.” 9 The collateral consequences of a criminal conviction continue to have such a dominating influence because criminal records are readily and easily accessible to anyone with an internet connection.10 Criminal convictions unquestionably have an impact on obtaining employment. One study found that employer “callback rates are about 60% higher for applicants without criminal records.”11 Similarly, a Society for Human Resource Management survey found that nearly all human resource professionals who
were surveyed reported that a nonviolent felony was somewhat influential in their decision not to hire someone.12 Ohio has had legal remedies available to ameliorate the impact of collateral consequences to assist those with convictions. Ohio’s Constitution, enacted in 1802, gives the governor the power to pardon those with convictions. This process contains its own limitations. Pardons are rarely given and the process is years long.13 Even if the applicant is successful in receiving a pardon, the pardoned conviction is not sealed from public view.14 Employers and others can still see that the person had a conviction, although it has been pardoned. Additionally, since 1974, Ohio has had a sealing statute, sometimes referred to as “expungement.”15 This remedy allows an applicant to seek a court order to seal convictions from public view. Unfortunately, the sealing remedy has its limitations as well.16 The applicant can have no more than two convictions to apply. Further, the statute disqualifies many offenses, and there is an expansive list of employers and others who can still see the sealed convictions.17 These statutory limitations work in many cases to defeat the whole purpose of the remedy.
Ohio Lawmakers Take Action
Ohio lawmakers recognized that the pardon and sealing remedies had constraints for jobseekers with criminal convictions and decided to act. In June 2012, the legislature passed Senate Bill 337 creating the Certificate of Qualification for Employment (CQE). Codified in RC Section 2953.25, the law provides that a granted CQE lifts the mandatory disqualifications for
employment and Ohio professional licenses. The CQE increases employment and licensing opportunities for those whose options had previously been limited or nonexistent. The law also offers an incentive for those employers who choose to hire someone with a CQE. It protects the employer from a negligent hiring claim that might arise from the CQE recipient’s onthe-job behavior.18 Unlike the pardon process or the sealing remedy, the CQE statute is a more inclusive remedy. There is no limit on the number of offenses one may have to apply for a CQE, and there are very few disqualifying offenses. To file for a CQE, an applicant need only wait one year after his or her sentence ends for a felony, or six months for a misdemeanor. The CQE application is an online form, www.drccqe.com. The completed form is submitted to the Ohio Department of Rehabilitation and Correction to be assessed for completeness only. Once the form is deemed complete, the applicant may then file the CQE application in the common pleas court of the county where he or she resides. Once filed, the CQE statute guides the trial court through its review process.19 The trial court must determine all the courts where the applicant has a conviction, notify those courts that the applicant has filed a CQE application and inform the courts that they may provide comments about the request. The trial court must also notify the prosecutor involved in each of the applicant’s convictions. It may also order any investigation it deems necessary. The trial court may grant the CQE if it finds the CQE applicant has established the following by a preponderance of the evidence: (1) “Granting the petition will materially assist the individual in obtaining employment or occupational licensing;” (2) “The individual has a substantial need for the relief requested in order to live a lawabiding life;” and (3) “Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.” 20 After the trial court issues its decision to grant the CQE, it notifies the Ohio Department of Rehabilitation and Correction who issues the CQE. The applicant does not receive a paper copy of the CQE. Rather, the applicant needs
to access the CQE through the database where he or she submitted his or her CQE petition. Lodged on that database is an electronic CQE that the applicant can print as needed.
Seeing Results After Four Years
Since 2013, Ohio trial courts have issued 539 CQE petitions.21 The courts have denied 146 CQE requests.22 The four leading counties to issue CQE petitions are Summit, Hamilton, Cuyahoga and Stark.23 Forty-nine of the 88 Ohio common pleas courts have issued no CQEs.24 The issued CQE will remain in effect unless the CQE recipient commits a felony. Only four people in Ohio have lost their CQE because they committed another offense.25 With the CQE remedy celebrating four years in existence, the question arises if it is working. Specifically, have CQE recipients been able to use the CQE to find employment or to obtain a professional license? In 2015, The University of Akron School of Law received a grant from the Ohio State Bar Foundation to survey CQE recipients to see if they had been successful in their quest to use their CQE. For those reached in the survey, more than 40 percent of the respondents reported that the CQE had assisted them with getting a job or keeping a job.26 In addition to The University of Akron survey, there is other evidence to support the fact that the CQE remedy works. In 2015, two professors at the University of South Carolina conducted a study to determine the efficacy of the Ohio CQE.27 The authors sent job applications to Ohio employers covering three types of jobseekers: those with no disclosed criminal conviction, those who had a one-year-old felony conviction and those who had a one-year-old felony conviction and a CQE.28 The study found that “for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer by more than threefold.”29 Additionally, the CQE recipients were “equally likely to receive an interview or job offer” as those with no criminal background.30 These two studies provide evidence that the CQE remedy helps those with criminal convictions find employment. Anecdotal evidence exists as well. The University of
CQE Denials Only
Defiance 0/0 Paulding 0/0 Van Wert 0/0
Champaign 1/0
Miami 0/0
Hamilton 130/14
Highland 0/0
Clermont 3/0
Brown 0/0
Guernsey 0/0
Belmont 0/0 Monroe 0/0
Noble 0/0
Morgan 0/0
Jefferson 1/1
Harrison 1/0
Washington 0/0
Athens 0/0
Vinton 0/0
Pike 0/0
Adams 0/0
Perry 1/0
Hocking 1/0
Ross 0/0
Tuscarawas 1/1
Muskingum 0/0
Fairfield 0/0
Pickaway 0/0
Fayette 0/0
Clinton 0/0
Warren 0/0
Columbiana 1/0 Carroll 0/0
Coshocton 0/0
Licking 0/1
Madison 0/0
4/0
Butler 1/1
Knox 0/0
Mahoning 14/8
Stark 34/8
Wayne 0/0 Holmes 2/0
Morrow 0/0
Franklin 25/18
Clark 1/0
Portage 3/1
Summit
Medina 131/12 2/0 Ashland 0/0
Trumbull 4/1
97/49
13/0
Richland 1/2
Union Delaware 0/0 1/0
Montgomery 18/7 Greene
Preble 0/0
Marion 5/0
Logan 0/0
Shelby 0/0
Lorain
Huron 1/0
Wyandot Crawford 1/0 0/0 Hardin 1/0
Auglaize 0/1
Darke 3/0
Seneca 1/1
Geauga 0/0
Cuyahoga
Erie 1/0
Sandusky 0/0
Hancock 3/0
Allen 1/0
Mercer 1/0
Ottawa 0/0
Wood 1/0
Henry 0/0 Putnam 0/0
Ashtabula 2/0
Lake 10/15
Lucas 18/4
Fulton 0/0
Williams 0/0
Meigs 0/0
Jackson 0/0
Gallia 0/0
Scioto 0/0
Lawrence 0/1
No CQE Grants or Denials
Defiance 0/0
Putnam 0/0
Van Wert 0/0
Wyandot 0/0 Hardin 1/0
Auglaize 0/1
Preble 0/0
4/0
Fayette 0/0
Hamilton 130/14 Clermont 3/0
Highland 0/0 Brown 0/0
Knox 0/0
Tuscarawas 1/1
Morgan 0/0
Jefferson 1/1
Harrison 1/0
Guernsey 0/0
Belmont 0/0 Monroe 0/0
Noble 0/0 Washington 0/0
Athens 0/0
Vinton 0/0
Pike 0/0
Adams 0/0
Columbiana 1/0 Carroll 0/0
Muskingum 0/0
Perry 1/0
Mahoning 14/8
Stark 34/8
Wayne 0/0
Coshocton 0/0
Hocking 1/0
Ross 0/0
Portage 3/1
Holmes 2/0
Fairfield 0/0
Pickaway 0/0
Clinton 0/0
Warren 0/0
2/0
Licking 0/1
Madison 0/0
Summit Medina 131/12
Ashland 0/0
Trumbull 4/1
97/49
13/0
Richland 1/2
Morrow 0/0
Franklin 25/18
Clark 1/0
Montgomery 18/7 Greene
Butler 1/1
Crawford 1/0
Union Delaware 0/0 1/0
Champaign 1/0
Miami 0/0
Lorain
Huron 1/0
Marion 5/0
Logan 0/0
Shelby 0/0 Darke 3/0
Seneca 1/1
Geauga 0/0
Cuyahoga
Erie 1/0
Sandusky 0/0
Hancock 3/0
Allen 1/0
Mercer 1/0
Ottawa 0/0
Wood 1/0
Henry 0/0
Paulding 0/0
Ashtabula 2/0
Lake 10/15
Lucas 18/4
Fulton 0/0
Williams 0/0
Meigs 0/0
Jackson 0/0
Gallia 0/0
Scioto 0/0
Lawrence 0/1
Most CQE Grants
Williams 0/0
Defiance 0/0 Paulding 0/0 Van Wert 0/0
Putnam 0/0
Preble 0/0
Hardin 1/0
Miami 0/0
Logan 0/0
Clark 1/0
4/0
Warren 0/0
Fayette 0/0
Clinton 0/0
Hamilton 130/14 Clermont 3/0
Franklin 25/18 Madison 0/0
Ross 0/0
Highland 0/0 Brown 0/0
Pickaway 0/0
Adams 0/0
Pike 0/0 Scioto 0/0
Summit
Medina 131/12 2/0 Ashland 0/0
Portage 3/1
Stark 34/8
Wayne 0/0
Coshocton 0/0
Licking 0/1
Muskingum 0/0
Fairfield 0/0
Perry 1/0
Hocking 1/0 Vinton 0/0 Jackson 0/0
Morgan 0/0
Mahoning 14/8 Columbiana 1/0
Carroll 0/0
Holmes 2/0 Knox 0/0
Trumbull 4/1
97/49
13/0
Richland 1/2
Morrow 0/0
Union Delaware 0/0 1/0
Champaign 1/0
Montgomery 18/7 Greene
Butler 1/1
Marion 5/0
Lorain
Huron 1/0
Wyandot Crawford 1/0 0/0
Allen 1/0
Shelby 0/0 Darke 3/0
Seneca 1/1
Geauga 0/0
Cuyahoga
Erie 1/0
Sandusky 0/0
Hancock 3/0
Auglaize 0/1
Mercer 1/0
Ottawa 0/0
Wood 1/0
Henry 0/0
Ashtabula 2/0
Lake 10/15
Lucas 18/4
Fulton 0/0
Tuscarawas 1/1
Guernsey 0/0
Noble 0/0
Harrison 1/0
Jefferson 1/1
Belmont 0/0 Monroe 0/0
Washington 0/0
Athens 0/0 Meigs 0/0
Gallia 0/0
Lawrence 0/1
*The author would like to thank Jacquelyn Davis for her assistance in creating the maps. *The author would like to thank Jackie Davis for her assistance in creating the maps.
OHIO LAWYER SEPT/OCT 2017
25
Akron conducts free monthly re-entry clinics where volunteers assist with the sealing remedy and CQE applications. Since 2013, 4,112 people have attended the free clinics. Volunteers have prepared 944 CQE petitions. Of those that attend the clinic each month, most are not eligible for sealing because of the number of convictions on their record. Many need to complete a CQE petition so they can find a job. Those attending the clinic report that the CQE offers them a chance at hope and a path to success.
What Is Next for the CQE?
While the CQE is a positive remedy that could help thousands of Ohioans to overcome the collateral consequences of their criminal convictions, it still exists in relative anonymity. Most employers do not know about the remedy and protections available under the statute. This became evident during The University of Akron survey of CQE recipients. The largest complaint of those surveyed was that during their job search, many of the employers or potential employers did not understand what the CQE did or what it was. As a result, in many cases, the survey respondents reported that the employer did not even want to look at the CQE and was not interested in how it would protect the employer if the employer hired someone with a CQE. There is still much work to be done to educate employers and potential CQE recipients about its existence and its benefits. Nevertheless, the CQE is a remedy that will allow those with convictions to return to the workforce. We need to support those efforts for the health of our economy and our communities. By one estimate, those with convictions and unemployed cost the U.S. economy between 57 and 65 billion dollars.31 Encouraging the employment efforts of those with convictions also makes our communities safer, because employment is key to reducing the rates of recidivism.32 But most of all, a CQE gives people the chance to support their families and to be contributing members of their communities.
Author Bio
Joann Sahl is Associate Clinical Professor of Law at The University of Akron School of Law.
26
OHIO LAWYER SEPT/OCT 2017
Endnotes Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 303 (2016).
1
Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 361 (2016).
2
3
http://civiccohio.org/ (last visited July 10, 2017).
https://niccc.csgjusticecenter.org/ (last visited June 19, 2017).
4
http://federal.ccresourcecenter.org/consequence-search (last visited June 19, 2017).
5
Ohio Rev. Code Ann. § 4740.061 (West 2013), §4781.09 (West 2012), §4723.092 (West 2013), §4701.06 (West) and §4759.07 (West).’
6
City of Cleveland Heights v. Lewis, 129 Ohio St.3d 389, 393 (2011).
7
8
State v. Golston, 71 Ohio St.3d 224, 227 (1994).
9 Utah v. Strieff, 136 S. Ct. 2056, 2070 (Ohio 2016) (Sotomayer, dissenting).
Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 302 (2016).
10
Amanda Agan & Sonja Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment, L. & Econ. Res. Paper Series, June 14, 2016, at 17.
11
Peter Leasure & Tia Stevens Andersen, An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms, May 20, 2016, at 5.
12
Alan Johnson, Kasich Uses Clemency Powers Sparingly in 2015, Columbus Dispatch ( Jan. 1, 2016), http://www. dispatch.com/content/stories/local/2015/12/31/kasichclemency.html.
13
State v. Boykin, 138 Ohio St.3d 97, 101 (2013); State v. Radcliffe, 142 Ohio St.3d 78, 82 (2015).
14
15
Ohio Rev. Code Ann. §2953.31 (West 2014).
16
Ohio Rev. Code Ann. §2953.32 (West 2014).
17
Ohio Rev. Code Ann. §2953.36 (West 2016).
Ohio Rev. Code Ann. §2953.25(G)(2) (West 2015). The Ohio Legislature recently amended the CQE statute, which will take effect in late September. The new statute makes the application process a little easier. It also allows non-Ohio residents with an Ohio conviction to apply for a CQE.
18
19
Id.
20
Id. § 2953.25(C)(3)(c).
21 This number is current through Dec. 31, 2016. For a full listing of the granted CQE petitions see www.drc. ohio.gov/Portals/0/CQE/Copy%20of%20Approved%20 CQE%2010312016.pdf ?ver=2016-10-31-152752-357. 22 This number is current through Dec. 31, 2016. See Appendix A for a map of the grants and denials. 23 See Appendix B for a map of the grants by county. The author would like to thank Thomas Warmouth and Irene Lyons from the Ohio Department of Rehabilitation for providing the CQE statistics. 24 This number is current through Dec. 31, 2016. See Appendix C for a map of the counties with no CQE grants. 25 Dept. of Rehabilitation & Correction, www. drc.ohio.gov/Portals/0/CQE/CQE_newfelony. pdf ?ver=2016-09-14-164318-723 (last visited Nov. 9, 2016). 26 The survey only reached about 22 percent of the CQE recipients. The survey was limited by lack of good contact information for many CQE recipients. For a full copy of the report and a discussion of its limitations, visit www.drc.ohio.gov/Portals/0/CQE/CQE%20 Statewide%20Project%20Final%20Report2016. pdf ?ver=2016-09-14-164320-990. 27 Peter Leasure & Tia Stevens Andersen, An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms, May 20, 2016, at 11. The study examined “the effectiveness of CQE’s on employer responses to male applicants using a correspondence approach.” 28
Id. at 12.
29
Id. at 2.
30
Id. at 2.
31 John Schmitt & Kris Warner, Ctr. for Econ. & Pol’y Res., Ex-Offenders and the Labor Market, 2 (2010), http://cepr.net/documents/publications/exoffenders-2010-11.pdf. 32 The study examined the association between neighborhood context and the outcomes related to recidivism and employment among a cohort of prisoners released from prison. Jeffrey D. Morenoff & David J. Harding, Final Technical Report: Neighborhoods, Recidivism, and Employment Among Returning Prisoners, 21 (2011), https://www.ncjrs.gov/pdffiles1/nij/ grants/236436.pdf.
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mental health issues. Coming in October, Drifting, falling—Diary of a Call Girl Suicide tells the story of 21-year-old Ripley Luna, a plucky, resourceful survivor of trauma. College student by day, call girl by night, Ripley plots her escape from a troubled life and PTSD hell. Despite the best efforts of her psychiatrist and the help of her best friend, Mort, she considers suicide as atonement for her commission of a crime. Visit www.ajullman.com to find out more.
Law and Media Conference is coming soon!
The 2017 OSBA Law and Media Conference on Oct. 13 in Columbus brings together journalists, lawyers, academics and students for a day of stimulating discussions about hot media law topics. Whether you are professionally immersed in media law issues or just have a healthy interest in what’s happening in today’s media law world, this conference is for you. This year’s plenary keynote speaker, Gregg Leslie, a staff attorney with the Reporters Committee for Freedom of the Press, will discuss “Fake News”—what it is (and isn’t), how to spot it and what to do if you get burned by it. Visit www.ohiobar.org/lawandmedia for more information.
Dont get buried under the cost of case law. OSBA members enjoy free access to Casemaker, a $900 case law research tool. Over 10,000 OSBA members use Casemaker each month with more than 90,000 searches. Get out from under the cost of case law research, and discover what an OSBA membership can do for you.
The Movement
Here's what OSBA members are doing to improve and adv I N N OVAT E .
LEAD.
E D U CAT E .
Coming soon: A digital engagement platform Your Board of Governors approved to update the OSBA website. But it will not be a website. It’s a digital engagement platform. In May 2018, you will have access to practice management resources and a better way to connect with potential clients, among many other enhancements.
Lawyers who lead Twenty-three members recently graduated from the OSBA Leadership Academy, a program that trains lawyers for future opportunities for leadership in the Association, the profession, and the community. Within six interactive sessions, participants discuss engaging topics such as working with clients, in-house counsel, partners and judges; and how to brand yourself through social media and traditional marketing.
Lawyers as authors OSBA members educate the public through the OSBA’s LawFacts pamphlets and Law You Can Use series, which provide general information for consumers about common legal issues, and they are the top viewed links on the OSBA website. Recent articles include “How to Get the Most from an Attorney-Client Relationship” by member Janet Green Marbley, and “When a Loved One Dies…Who Pays the Bills?” by member Paul S. Klug.
Participate in OSBA's green initiative We know many OSBA members view the “green book” as an invaluable part of their membership, and we are proud of our long history of offering this important member benefit. However, as you are probably aware, the OSBA now offers a customizable OSBA Report email that can deliver the same case law up to six weeks sooner than in the print version. If you are one of the growing number who rely more and more on the emails, we encourage you to opt-out of receiving the print green book. You will still receive all the valuable updates that are vital to your practice, while also helping us help the environment. To opt-out of the print OSBA Report, go to https://ebar.ohiobar.org/Preferences (you will need to log in), click the box next to “I would like to unsubscribe from the print version of the OSBA Report” and click the “Save” button on the bottom of the screen. You also can call the OSBA Member Service Center at (800) 232-7124.
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Attendees are given the support to enhance many of their important skills, including writing and public speaking. By the time that they graduate, they are transformed into problem solvers and effective lawyer leaders. Recent graduate Rachel Sabo said the Leadership Academy helped her expand her network, learn new things about herself and become a better leader. Overall she said: “I absolutely love the Leadership Academy. I have found the experience to be so rewarding and fun.” Tonya McCreary Williams believes the Academy has helped her define her direction so that she will be able to discover and venture into new and promising areas in the legal field. Interested? The OSBA is currently accepting applications. To apply, visit www.ohiobar.org/la.
Interested in writing for the OSBA? Contact Maggie Ostrowski at mostrowski@ohiobar.org. Get free CLE credit by monitoring a program The Supreme Court of Ohio requires providers of CLE to have a moderator any time a video replay of a live CLE program is shown. The moderator is there to keep the day on schedule and answer questions from the audience about what was just viewed. The moderator does not have any technical or registrar duties. We are looking for moderators in the Cleveland, Columbus, Akron, Fairfield, Perrysburg and Dayton areas. Moderators earn free CLE and will be put on a contact list with future video replay program dates and locations as they become available. If interested, please send your contact information and a short bio to Deanna Freeman at dfreeman@ohiobar.org.
d advance the legal profession. Join the movement! A DVO CAT E .
COLLABORATE.
VOLUNTEER.
More evidence of the opioid crisis burden in Ohio Attorney General Mike DeWine will be seeking $440,000 in additional funding from the State Controlling Board to farm out drug testing to crime labs in Cuyahoga and Hamilton counties that would otherwise have gone to state BCI labs. This is due to the volume and complexity of the testing, both of which have been on the rise.
Special meeting of the Council of Delegates The OSBA Council of Delegates will meet Friday, Oct. 6, 2017, at 1 p.m. at OSBA offices in Columbus, per the call of a special meeting by the OSBA Board of Governors.
Here are some members who have volunteered their time to help advance the legal profession.
OSBA opioid resources page: The OSBA has compiled helpful opioid-related resources at ohiobar.org/opioidepidemic to assist legal professionals who want more information or want to get involved in combatting this crisis. Thanks to these member testimonies Cleve Johnson testified in favor of SB 33, which discloses information from the law enforcement automated data system (LEADS) to a defendant in a traffic or criminal case. Rich Fry testified against the legal sales tax expansion, HB 49. Book Todd Book OSBA Senior Director of Policy and Government Affairs Todd Book recently traveled to Port Clinton and Wayne County. If you would also like Todd to come to your office, county/municipal bar or other local organization, contact him directly at tbook@ohiobar.org or (614) 487-4464.
The Council will consider a report from the OSBA Futures Commission, set dues for 2018 and consider changes to OSBA's membership structure starting in dues year 2019. Committee and section reports may also be considered. The Council of Delegates Screening Committee will meet on Friday, Sept. 22 at 10 a.m., at OSBA offices in Columbus. The Screening Committee meets prior to Council meetings to consider proposals in detail so that the Committee may make a recommendation to the full Council as to whether a proposal should be approved.
At the All-Ohio Legal Forum in August, paralegals volunteered to help indigent Cleveland residents complete simple wills and financial POAs, advance directives, organ donor designations, and declarations for funeral arrangements. Are you a member who volunteers? We would love to hear from you! Contact Editor Nina Corbut at ncorbut@ohiobar.org.
Please direct any questions to Executive Director Mary Augsburger at (614) 487-4405 or maugsburger@ohiobar.org. Join like-minded attorneys Attend a committee and/or section meeting to collaborate with other attorneys in your practice area. Check the OSBA website at ohiobar.org for upcoming meetings.
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Top 5
Goodbye Yellow Pages: Here’s how lawyers are using no-cost marketing these days We asked OSBA members, “What is your go-to marketing tool?” Based on the responses, most of the tools don’t come with a price tag.
Word of mouth
Become a known expert in your practice area
Provide quality affordable service
Almost all the respondents said they had this gem in their marketing toolbox: word of mouth. Karen Ireland-Phillips of Cleveland said, “Almost all my clients were referrals from former clients, or former clients with new issues.” Hillsboro attorney Kathryn Hapner had a similar response: “I have found that most of our clients are repeat clients, friends or relative of clients or referrals from former or current clients.” “In a small-town environment where I practice the best marketing is providing quality affordable service which gets spread by word of mouth,” said Tom Guillozet of Versailles.
Website
Instead of spending money on buying ads, invest in your website instead. Tom Guillozet said, “For years our firm advertised in the yellow pages with a large ad because “it was the thing to do” … [but] we are discontinuing the ad. We’re going to invest the monies which would have been spent on the ad on enhancing our web site.” When consumers need an attorney, many of them use google to search for one. This search could lead directly to your website. Stan Dub, an attorney in Cleveland, advises lawyers to “create a website that explains to clients why you are the answer to their needs.”
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Steve Magas, a bike lawyer in Cincinnati, calls his strategy mini-marketing. “My marketing has been developing over the past 30 years by becoming known in my niche and developing the ‘bike lawyer’ persona/ brand. I have written many magazine articles and had a regular column, Bike Law 101, with local, state and national publications. I stay active in bicycle related groups and sit on the Board of the Ohio Bicycle Federation, acting as the legal arm in drafting and pursuing bike-friendly statutes and amendments to the traffic law. I also comment on online articles of interest to my niche on my blog, Twitter feed or Facebook page. Not one of those blurbs say, ‘Hire me because....’ Instead, they show my interest in the niche, and my ability to stay on top of trends of interest to those in the niche, making them more likely to hire me.”
Develop a niche
When Cleveland attorney Stan Dub started his own practice, he recognized he needed to have a niche, because clients would tend to favor bigger firms for business transactions and estate planning. “I decided to focus my practice on franchise law matters, which I saw as an underpopulated specialty, at least in Ohio. I developed my expert credentials, including teaching a course on franchise law as an adjunct at CWRU Law School. Over time my practice has grown nicely.”
This one basically goes without saying, but it’s the easiest way to get and keep clients: Provide quality affordable service, so your clients do not need to find another lawyer. Kathryn Hapner says that “Providing good service at a reasonable rate has been the best marketing tool for us. It has worked for us since 1958.” Bradley N. Frick agrees. “All the internet in the world won’t buy you long-term success if you don’t do good work, manage client expectations and communicate better than your competitors (which is not hard to do).” Join the discussion on the OSBA Member Communities at https://connect.ohiobar.org.
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Tackling the Opiate Epidemic: Facts, Representation, Treatment and Court Options
CLE Live Seminar | Sept. 14, 2017 www.ohiobar.org/opioidepidemic