Columbus Bar Lawyers Quarterly Spring 2018 by Columbus Bar Lawyers Quarterly

LAWYERS

Columbus Bar Spring 2018

QUARTERLY L A I C E SP

E U S IS

Environmental Law In this issue, Columbus Bar Lawyers Quarterly digs into Environmental Law: from nutrient pollution to climate change, national parks to fracking and water rights to wildlife trafficking. This issue also investigates life as a new attorney, parenting coordination, working remotely and more.

A publication of the Columbus Bar Association â&#x20AC;˘ www.cbalaw.org

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Table of

LAWYERS

Contents

QUARTERLY

Spring 2018 President’s Page

Lawyering in the Digital Age: Harnessing the Power of Technology Lisa Pierce Reisz

Spring Feature

Ask the Attorney Celebrates Six Years Kelsey Pohlman

Bar Insider

Women in the Profession: Lessons I Have Learned Betty Montgomery

Serving the Underserved: PACO & LASC Pro Bono Wills Clinics Teresa Scharf

Better Lawyer

Diary of a New Associate: Balancing Insecurities with Confidence Lindsey Roberts

“Network to Get Work”, “It’s Who You Know”, and Other Unhelpful Proverbs Hannah Botkin-Doty

Healthy Lifestyle Tips for Young Lawyers Jeremy R. Abrams

Points of Practice

Working from Home: Observations from a Mid-Career Employment Lawyer Brigid Heid

Post-Decree Co-Parenting is No “Piece of Cake” Charlotte Parsons

Environmental Law

Legal Medical Marijuana in Ohio Should Lead to Better Environmental Practices Luis M. Alcalde, Rachel Friedman and Lloyd Pierre-Louis

Wildlife Trafficking in Ohio: Disease Runs Rampant Heather Robinson

Climate Change Law at a Crossroads Cinnamon Carlarne

A Tilted Balance: Emerging Regulation of Nutrient Pollution in Ohio Rees Alexander

Go with the Flow: Ohio Groundwater Rights Ian F. Gaunt

National Parks as Resources for People: A History Janyce C. Katz

Oil and Gas: A Tricky Lease Gerrod Bede

The Future of Fracking in Ohio Frank J. Reed, Jr.

Columbus Bar Association Editorial Board Chair

Janyce Katz

Board Members Jack D’Aurora Jeffrey Eyerman Amy Koorn Melanie Tobias

Editor

Kelsey Pohlman

Design/Production Sarah Curran

Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org

Life Outside the Law

Most Lawyers Are Happy: Here’s Why Scott R. Mote

From Law Office to Barnyard: One Exciting Career Change Hon. David E. Cain

Lawyers with Artistic License: Maritza S. Nelson Heather G. Sowald

Jury Verdicts

Civil Jury Trials, Franklin County Common Pleas Court Monica L. Waller

Advertising Burgie MediaFusion (614) 554-6294 leslie@burgiemediafusion.com

NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.

Presidentâ&#x20AC;&#x2122;s Page

Lawyering in the Digital Age: Harnessing the Power of Technology by lisa pierce reisz 2018. We live in a remarkable time. Alexa, facial-recognition iPhones, self-driving cars, artificial intelligence. Technology is changing the way we do almost everything. Usually for the better. But, lawyers are creatures of tradition and habit. We are typically very slow to change. Indeed, for most of the past 25 years, lawyersâ&#x20AC;&#x2122; use of technology has been limited to online legal research through Lexis-Nexis or Westlaw. Although online legal research opened up a whole new world of resources to lawyers who were otherwise confined to the four walls of their legal library (not to mention the ability to shephardize legal authorities at the touch of a button), lawyers, who are conservative by nature, have been slow to adopt other technologies to streamline their practices. This is changing. The great recession of 2008 fundamentally altered the legal industry, maybe forever. Gone are the days when lawyers could spend hours learning every area and aspect of law and bill their clients for each hour spent in professional development. Clients, whose legal budgets shrank during the recession, have demanded value, innovation and certainty in exchange for their legal spend. In addition, a wave of third-party vendors, consultants and nontraditional legal services have flooded the market providing an alternative to traditional law firms and lawyers. RocketLawyer and LegalZoom are third party vendors who are providing internet legal serves in place of lawyers and law firms. Accounting firms, third

party vendors and even IT consultants have crept into the legal market providing a wide variety of counsel and information to our clients. As a result, lawyers have had to adjust quickly and adopt to these ever-changing business pressures. For many, technology has been (or may be) the answer. We now rely on technology to communicate with clients. E-mails have quickly replaced fax communications, and long gone are the days of a letter sent by snail mail. We now electronically file pleadings with our federal and state courts at 11:58 p.m. on the due date; gone is the 5:00 race to the clerkâ&#x20AC;&#x2122;s office. And to tackle the explosion of data that has overwhelmed the business world, lawyers now use multiple technological tools to search key words

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Remember that humans will always be able to do certain things that machines cannot: express human empathy, share a common human experience and offer human compassion to our clients. to identify the relevant documents in a universe that expands millions of pages. A page-by-page review of documents contained in musty, dusty boxes is a thing of the past. Yet, we are truly just scratching the surface on how we can harness technology to improve our legal practices. Tools now exist to automate almost every law firm administrative function, including client engagement, document management, marketing, finance, e-billing and a variety of new communications tools (including social media). But beyond administrative support, technology is pushing into the actual practice of law. Artificial intelligence is defined by Merriam Webster as “an area of computer science that deals with giving machines the ability to seem like they have human intelligence; the power of a machine to copy intelligent human behavior.” Artificial intelligence is beginning to revolutionize the legal industry. For instance, IBM has recently introduced Ross, “the world’s first artificially intelligent attorney” to read and understand language, postulate hypotheses when asked questions, research and then generate responses (along with references and citations) to back up its conclusions. Ross also learns from experience, gaining speed and knowledge the more an attorney interacts with it. But should these technologies scare us or excite us? Lawyers have always been slow to adopt technology. And artificial intelligence not only poses the uncertainty of technology, but also the added concern that such technology can actually replace certain tasks that are currently done by attorneys.

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At this point, attorneys must embrace what these technologies can do for their practices: provide better, faster and cheaper routine services for clients (discovery, document management, research), while freeing up their precious billable time to address a client’s more complex needs. This is how the legal profession is evolving. Clients will not pay for attorneys to bill hours to tasks that can be done faster, cheaper and more accurately by machines. Ultimately, attorneys must recognize what parts of their practice can be automated, while also understanding that machines can never take over the most important skills

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Technology tools for members (more info at cbalaw.org) FASTCASE: Attorney and practicing paralegal members of the Columbus Bar have access to free legal research from Fastcase.

CENTRAL OHIO DOCS: Build legal documents in minutes with Central Ohio Docs, a user-friendly document assembly service offered exclusively to CBA members.

we bring to the table: judgment, reasoned decision-making, interpretation of legal authorities and opinions and, perhaps, most importantly, client relationship skills. And for those attorneys who truly feel that a take-over of our profession by machines is imminent, it behooves us to remember that humans will always be able to do certain things that machines cannot: express human empathy, share a common human experience and offer human compassion to our clients. These inherently human characteristics cannot be replaced by machines. It is the lawyers who understand this point and willingly adopt technology to supplement their practices who will ultimately survive and thrive in this ever-changing legal climate. Let the machines do the tedious, time-consuming, repetitive work and we, as counselors and advocates, can use that final machine-driven work product to analyze and ultimately resolve the legal issues facing our clients. Indeed, it is here—in the balance between machine and attorney—that we might ultimately achieve the ever elusive work-life balance.

PRACTICE MANAGEMENT CENTER: The Columbus Bar’s Practice Management Center is an online resource designed to help you build and maintain a successful, thriving legal practice. You’ll find checklists, whitepapers, videos, and other resources.

Lisa Pierce Reisz, Esq.

Vorys, Sater, Seymour and Pease LLP lpreisz@vorys.com

DIGITAL DIRECTORY: Every month, 17,000 people search for a lawyer in our widelyused Digital Directory, and CBA members receive an enhanced profile for free. Make your profile stand out by adding photos, an elevator speech, your areas of practice, and more.

TECH SHOW, May 17: Attend this CLE to learn a plethora of ways to become (and stay) competent in the area of cybersecurity.

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NEW! Benefit for Columbus Bar Members

PRACTICE

MANAGEMENT CENTER

NEW!

P Articles P Recommendations P Checklists P Whitepapers P Videos P Comparison Charts

Resources and tools for every stage of your legal practice The Columbus Bar’s new Practice Management Center is a members-only section of the CBA website filled with resources to help you build and maintain a successful, thriving legal practice.

Cost:

FREE! All of the resources in the Practice Management Center are available to you as a CBA member.

You’ll find whitepapers, checklists, recommendations, videos and other

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Opening or Closing a Law Firm Client Development Documents Technology Money Management Comparison Charts From getting clients to getting paid and everything in between, we’ve got you covered in the Practice Management Center. Visit www.cbalaw.org/PMC and take a look around!

Spring Feature

Ask the Attorney Celebrates Six Years bY Kelsey Pohlman More than 200 calls. One and a half hours. A team of trained attorneys. Are you up to the task? This call of duty is what many of our volunteers offer to do every single Wednesday at ABC6 for Ask the Attorney. Ask the Attorney began more than six years ago in September 2011. The fact that it became so successful was a feat all its own. “When Tom Sussi from Channel 6 called, I thought it was worth the try, but I was skeptical because we’d tried it before in various ways,” LRS Director Marion Smithberger explained. “We had tried it

before on WTVN radio Saturday mornings; no one wanted to call then. We had lawyers taking end of life questions on Channel 10 during the Terri Schiavo case. The phone bank was so loud that you could hear it during the News; but that was a one shot deal.” Little did Smithberger know just how successful Ask the Attorney was going to be… it’s now a weekly segment that many CBA members regularly volunteer for, most of whom come from Columbus Bar inc and the Barrister Leadership program. One of the first volunteers came from our very first inc class, the CBA’s Diversity Director Jocelyn Armstrong.

“Ask the Attorney is a great thing for the young lawyers who volunteer because it helps them practice intake,” Armstrong said. “On Ask the Attorney, the client describes the need, then we help them navigate what they need and share how we can help them.” But what if a phone call comes in and the person taking it doesn’t know anything about that practice area? Smithberger and team have found a way around that. “When we first started I invited some people who would be good sports because I thought it was possible we’d get no calls,” Smithberger stated. “The way we originally transferred calls was by handing the phone across the desk to our volunteers in bankruptcy or workers comp or what have you.” While this system has now improved to transferring calls to another volunteer who’s there that night, some attorneys might still have an initial fear to overcome. “[I was] afraid I wouldn’t know the answer to their questions. But you know more than you think,” frequent volunteer and former inc attorney Jacob Levine reasoned. “But if you don’t know the answer, that’s okay…

Ask the Attorney is now a weekly segment that many CBA members regularly volunteer for, most of whom come from Columbus Bar inc, the Lawyer Referral Service or the Barrister Leadership program. Marion and the CBA do a great job assisting you. And there’s going to be 20 more calls that come in where you do know the answer.” And if no one is there to fulfill a specific practice area need, the attorneys still know exactly where to direct them. “A lot of [potential volunteers] have been gun shy. They have a particular practice area and don’t think they can help,” frequent volunteer Jay Dixon said. “You’ll be amazed at the things you remember from law school to give some basic advice. And I’m comfortable kicking it to the Lawyer Referral Service to get them someone with actual experience.” The call may not even be necessary for an attorney to assist you with. “Sometimes they don’t have a legal issue and you’re helping them realize that,” Armstrong added. “Whether it be mediation or social services, we’re pointing them in the right direction and they’re very thankful for the help.” After getting over the initial nervousness, volunteers find themselves coming back each Wednesday for more. “The first time I did Ask the Attorney was through the Barrister Leadership Program… back in February. I thought it was fun and a good networking opportunity to talk with the other attorneys,”

Dixon enthused. “I came back and told our attorneys in the firm and managing partner who said it’d be great to do. Since March or April [of 2017], we’ve had someone doing it every week.” Having fun while helping others typically makes for a great combination and our volunteers weren’t short of entertaining stories they had from Ask the Attorney. “I once had a caller who wanted to sue Nancy Reagan, who was deceased at the time,” Levine shared. “They apparently had issues with Ronald Reagan. Sometimes we get calls from people who are in jail asking, ‘Can you get me out of jail right now?’.” “Sometimes people have such substantial legal issues,” Dixon explained. “I don’t necessarily know why they’d be calling a line like this because it’s probably a case a large law firm would like to take. It’s entertaining to hear what people encounter and what they think consists of a legal issue.” Although the unique calls make for good stories, the majority are filled with everyday legal problems like divorce, bankruptcy and landlord/ tenant disputes. And while many attorneys are able to earn Pro Bono CLE credit through Ask the Attorney, helping others seems to be the root of everyone’s reason to volunteer.

“I like talking to people and helping them to unload a burden,” Smithberger added. “I think the biggest part of why the program is so successful and people point to it, is because we make them feel better. Most people are very appreciative.” Contact Marion Smithberger at marion@cbalaw.org if you’re interested in helping the Central Ohio community navigate the world of law.

Kelsey Pohlman

Columbus Bar Association kelsey@cbalaw.org

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Bar Insider

Women in

the Profession: Lessons I Have Learned by BETTY MONTGOMERY I have been blessed. I was raised by loving parents who believed in their faith, family, and the American dream. They taught their children that there was no barrier to personal success. In a family of strong women, this meant that being a woman was clearly no barrier and no excuse to personal achievement. We had assigned reading on setting goals. We were expected to work hard and to honor the blessings we’d been given. So, it was in this context that when, in 1973, my father took me to an Elks summer picnic, he was proud to introduce me to a local law professor, telling him that I was entering law school that fall. This was the setting of my first rule. When the professor lamented that it was “too bad” women went to law school, taking up a man’s place only to later get married, have children and drop out of the legal profession, I decided that this said much more about him than me and I didn’t engage in a fight with him.

Rule 1: You are invited to a lot of fights; you don’t have to accept all the invitations. I went to law school, working full-time during the day. When seeking a job as a court clerk, I was told that women law clerks were only hired to work for women judges. The problem was obvious: In 1973, there was only one female judge on the nine-judge court, narrowing my opportunities considerably, which leads me to my second rule:

Rule 2: Be polite, but be persistent. I called the court administrator’s office regularly, inquiring about available law clerk jobs until, finally, months later, a male judge had a job opening. He was converting his law clerk position to a secretary – and could I type? Of course I could type! He didn’t ask how fast... so, within weeks of my being hired as a secretary, I became a criminal clerk. This leads me to my third piece of advice:

Rule 3: The side door is still an entrance. I didn’t want to be a secretary (it was the height of the women’s movement and I, after all, was a law student!), but I knew that I needed the court experience. That said, once inside, I thought that I could prove my value and eventually become a clerk, while at the same time gain valuable experience. My thoughts were that, while I may not have come through the front door, and I may have to wash the dishes (figuratively), I would eventually be able to sit at the sought-out table with the other law students serving the court. The side door was still an entrance. In those days, it was the custom in the courts that clerks would eventually become bailiffs for their judge once the bailiff, who was also a law student, graduated and began law practice. Thus, when my judge’s bailiff graduated, I expected this long-standing custom to be followed and that the judge would hire me for the coveted bailiff’s position (and pay raise). He didn’t hire me. This leads me to my fourth learning lesson:

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Humor is a universal language, and once the overwhelmingly male police community saw that I would work loyally for them, laugh with them and at myself, they came to understand—without lecture—that a woman could do the job.

Rule 4: Don’t slam the door, close it gently. I was demoralized. My women law student friends urged me to quit—to make the grand gesture. I talked to the judge and, while I didn’t fully understand his explanation, I felt I wanted to prove to him that he had made the wrong decision. I wanted to prove to him through my work—not my words, not the grand gesture—that he had made a mistake. I respected him a great deal. I stayed. Five years later, I was to get a heartwarming letter from him, apologizing and acknowledging his error. After graduating from law school, I started looking for a job. I wanted to be a prosecutor. In 1976, there were few women criminal prosecutors. I exercised Rule 2, being polite but persistent, and on my now-regular calls to the newly elected Wood County Prosecuting Attorney, I caught him on the day his juvenile prosecutor had quit. He was desperate and I was available. I had the job. Mind you, I didn’t really want to be a juvenile prosecutor since that was where women lawyers were traditionally relegated (as well as to child support and domestic cases). That said, I exercised Rule 3, knowing that if I got my experience as juvenile prosecutor, I was inside the office (by the side door) and had a better chance to become a criminal prosecutor. And it worked!

family. Humor is a universal language, and once the overwhelmingly male police community saw that I would work loyally for them, laugh with them and at myself, they came to understand—without lecture— that a woman could do the job. Which brings me to Rule 6.

Rule 6: Volunteer. In the several years after law school, I volunteered to help my state representative, Speaker of the House Charles Kurfess, run for governor. He lost that race in the primary, but became our Wood County Republican Chairman. Volunteering cannot be overvalued. I got to know officeholders, political supporters and the general public as we stuffed envelopes, knocked on doors and marched in parades. Most importantly, I got to know Chuck Kurfess, who was a committed public servant and soon-to-be political mentor. One early Saturday morning, three years out of law school and just days before the candidate filing deadline, Speaker Kurfess called and asked me to run for Wood County Prosecuting Attorney. The incumbent had dropped out with little notice and he needed a candidate. Would I run?

Two years later, I moved from juvenile prosecutor to become the City Prosecutor of Perrysburg. I had, in those two short years, worked long hours with police departments and social service agencies from all over the county. I had been engaged in community work and I had certainly confirmed the value of Rule 5.

I said “yes” immediately, despite the fact that there were no elected women county prosecutors in the state. Why? My parents were in sales, making a living without a safety net. They taught their children to be willing to try. Thus, my Rule 7:

Rule 5: Humor is important.

I won, and in the first months as county prosecutor was preparing for my first murder trial. Oh, how I wished I were silver tongued, how I wished I looked like a sleek

I confirmed the value of taking the job seriously, but not myself. Humor was an important part of our

Rule 7: There are no guarantees in life–Risk!

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magazine model and how I feared losing my first major case! I am not silver tongued, and I am very far from being a size six, runway model—which leads me to Rule 8.

Rule 8: Be your authentic self. The jury will spot a phony—as will friends and colleagues. My strengths lay in solid preparation, and my abilities were in telling a story clearly. I knew the evidence, not me, was the star of any jury trial. The jury returned a guilty verdict. For the record, while I still want to be a size six, I know that we all have been given certain gifts. Our job is to cultivate and nurture those talents— and to be the best “me” we can be. I loved being county prosecutor when, after eight years, I was asked to run for a state senate seat that had opened unexpectedly. I gave up running unopposed for my third-term election after a sleepless night, asking my present self what my future self would think of me if I were afraid to risk this leap. I followed Rule 7.

true mark of character is how those who win or lose handle it. Winning without recognition that it is not done alone, or losing without recognition that it should not be a scapegoating exercise is critical to growing as a thoughtful individual. The recipe for a well-lived life does not include the seasonings of bitterness or pride. The most important of all the lessons I have learned along the way, however, is Rule 10.

I jumped in to a four-way primary, and served a rewarding six years before running for Attorney General and, later, for Auditor of State. I lived (albeit sometimes imperfectly) the rules I have discussed, but was soon to add a new one, learning the hard but valuable lesson regarding losing. The year 2006 was a devastating one for Republicans as they suffered a loss of all statewide officials as a result of an executive branch scandal. I was one of the victims of that sweep, as I lost my re-bid to become Attorney General for a third term. I learned very personally the lessons of Rule 9.

Rule 10: Pay it forward.

Rule 9: Failure is not fatal.

A version of this article originally appeared in the Fall 2017 issue of The Toledo Transcript.

While losing was undeniably very painful and had lingering effects (I can’t deny that), it wasn’t fatal: I did not die. I knew that I had been blessed with being able to serve in public office for decades. I still had a wonderful family, still lived in a great country, and still had opportunities to do meaningful work in my profession. Failure gave me time to evaluate my blessings and my priorities (past and present), as well as to review my many weaknesses. I had observed in my years in elective office that the

As each of us has had opportunities given to us, we too have an obligation to help give opportunities to others. We are like the proverbial turtle on a fencepost: we did not get there ourselves. It is for us, who have benefited from the kindness of others, to share similar kindnesses with others. While this seems a hackneyed observation, this is nevertheless a universal truth. Blessings are born from kindness, and a life well-lived has many blessings.

Betty D. Montgomery

Mac Murray & Shuster LLP bmontgomery@mslawgroup.com

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Upcoming Events

What’s Happening @ the Bar? For a complete list of events, CLE programs and meetings, visit www.cbalaw.org.

SPRING 2018

april

11 april

Evolution of Digital Marketing • 1:30-3:00pm • 1.5 CLE Hours Taught by a digital marketing expert, this class will help you identify and fix your digital problems and develop a cohesive digital strategy that will lead you to marketing success. CLE Easy Pass eligible.

Committees & Cocktails • 3rd Wednesdays, 5-7pm @ the CBA

This free monthly event gives members from all committees and practice areas a chance to meet, network and make valuable business contacts in a casual, relaxed atmosphere. The CBA provides beer, wine, soft drinks and light hors d’oeuvres. RSVP to donna@cbalaw.org.

COMMITTEES

COCKTA LS COLUMBUS BAR ASSOCIATION

may

Bankruptcy Law Institute 2018 • 9.0 CLE Hours, with 2.5 Prof. Conduct The annual Bankruptcy Law Institute is back! This year’s institute is CLE Easy Pass eligible and will be presented in three modules: Mindfulness, Practice and Personal Management; Probate, POAs, and Everything In Between; and Beyond The Bankruptcy. Attend 1, 2 or all 3.

may

Community Cultural Conversations • 12-1pm @ the CBA This event is free and open to the public

3-4 3

may

14-15

and

The topic for this conversation is “Gender Disparity in the Workplace.” Same degree, similar experience, different salary? Unequal treatment of women in the workplace impacts many industries. Bring your voice to the conversation.

TSA Pre-Check at the Columbus Bar We are pleased to offer TSA Pre-Check enrollments onsite at the Columbus Bar offices on May 14-15, 2018 (8:30am-5:00pm). Pre-registration is required. Visit www.cbalaw.org for details.

may

Probate Law Institute 2018 • 6.0 CLE Hours, with 2.5 Prof. Conduct Join us for a day of learning (and lunch) at the popular Probate Law Institute. Taught by leaders in the field, topics include The Consequences (and Alternatives) to Disinheriting a Child; Financial POAs; In Terrorem Clauses; Dealing with Difficult Personalities; and Alternative Emergency Planning Techniques. Instruction includes probate-specific ethics.

may

Legal Technology: Putting It All Together, 2018 Tech Show • 6.0 Prof. Conduct CLE Hours Learn a plethora of ways to become (and stay) competent in the area of cybersecurity. A must for any law firm or company who uses technology daily. Send 2 attorneys and bring your IT person free!

16 17

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Bar Insider

Serving the Underserved: PACO & LASC Pro Bono Wills Clinics by Teresa Scharf If you are familiar with the Paralegal Association of Central Ohio and its PACO/ LASC Pro Bono Wills Clinic project, this article will be a reminder of the wonderful opportunities that we have had to serve senior citizens across Central Ohio for the last eight years. If you are not familiar with this program, allow me to introduce you to the concept and reality of bringing end-of-life estate planning documents to hundreds of individuals who have few to no assets and cannot afford to retain private counsel to prepare these important documents for them. In 2009, the Pro Bono Committee of the Paralegal Association of Central Ohio (PACO) formed an ad hoc committee to explore how we might accomplish this task â&#x20AC;&#x201C; and we found that senior citizens who live in low-income residential facilities comprised an underserved population. We learned that there

are organizations such as the Central Ohio Area Agency on Aging, National Church Residences, Lutheran Social Services, Catholic Social Services, Jewish Family Services and Buckeye Community of Hope, among others, who manage low-income Section 8 senior housing facilities, and they have enthusiastically welcomed the opportunity to host events where attorneys, paralegals and law students will come and provide free legal services to their residents. So, PACO partnered with the Legal Aid Society of Columbus (LASC), and in 2010, our Wills Clinic effort was launched. Eight years later, we continue to provide our services throughout Central Ohio. To date, we have conducted 116 Wills Clinics and helped 1,032 individuals by preparing Simple Wills, Financial Powers of Attorney and Advance Directives (Living Wills, Health Care Power of Attorney and Organ Donor Designations) for them, along with a Declaration of Funeral Arrangements and Disposition of Bodily Remains, and an Affidavit to allow his/her executor entrance

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into declarantâ&#x20AC;&#x2122;s apartment upon his/her death. Why should this be of any interest to attorneys, the primary readers of this magazine? Because this is about attorneys, paralegals and law students working together to serve a segment of our shared population. In fact, we have enjoyed the participation of over 125 Columbus attorneys who have volunteered with us at least once since we began. Many continue to volunteer, and some do so multiple times each year. Some practice in probate and estate planning at their firms; some had never prepared a Will for a client prior to volunteering with us; and some are retired attorneys who have found that this service is an excellent opportunity and reason to maintain their license to practice law, giving back to their community at the same time. Correspondingly, we have had over 90 paralegals and 40 law students who have volunteered alongside attorneys to make this happen. The partnership with Legal Aid and the success of this Wills Clinic

This clinic not only brings a benefit to members of the community at large, but it also provides a unique opportunity for attorneys to work with paralegals and law students to identify and appreciate the specific skills and talents that each contribute to the practice of law. effort has been absolutely amazing. It has created a very unique experience for attorneys, paralegals and law students to work side-by-side in meeting with clients. While paralegals and law students prepare the documents for the clients, the attorneys provide legal counsel to the clients concerning the documents. In addition, Legal Aid’s malpractice insurance extends its coverage to the attorneys who volunteer – thus not exposing their private-practice or law firm insurance policies. All of this is done on-site – at each residential property. Our group has been gifted with laptop computers, printers and supplies such as paper, pens, staplers, etc. Essentially, the PACO/LASC Pro Bono Wills Clinic is a mobile office that travels from one residential facility to another and provides these services to senior citizen residents. We even have the advantage of an IT professional who maintains all our equipment and software, attends each Wills Clinic event, sets up all the equipment in preparation for the legal professionals’ arrival at the site and “tears down” the equipment at the conclusion of each event. These services are executed in the most professional manner. To undergird and assure that our volunteers are up-to-date regarding statutory and legislative information, every attorney and paralegal who volunteers at a Wills Clinic must first attend and complete an annual CLE that is specifically designed to address the Wills Clinic clientele and the documents that we generate. It is amazing to see the relief on the faces of these seniors at the conclusion of their consultation with our volunteer legal teams. They knew that these documents

needed prepared. They struggled facing the reality of how necessary it is to have their wishes expressed in written form, yet they were unable to actually retain the legal counsel to do so. The services we bring provide the avenue by which they can complete these important and necessary designations. It is also gratifying to hear the stories afterward of the family members who are equally grateful that their loved one had documents in place to give them guidance during times of crisis. The clients’ assets may not be substantial, but their few belongings are nonetheless valuable to them and their families. The completion of the Advance Directives is especially critical for the client’s care, both to their loved ones and to medical professionals. This clinic not only brings a benefit to members of the community at large, but it also provides a unique opportunity for attorneys to work with paralegals and law students to identify and appreciate the specific skills and talents that each contribute to the practice of law. The volunteer setting translates those skills and talents to a billable-hour setting, as well. Won’t you join us in this endeavor? Please contact me via e-mail at ProBonoColumbus@gmail.com.

Teresa Scharf

Ulmer & Berne LLP tscharf@ulmer.com

15 | Columbus Bar L aw yers Quarterly Spring 2018

Diary of a New Associate: Balancing Insecurities with Confidence BY Lindsey Roberts As all attorneys know, law school teaches a very, very small piece of what makes a successful lawyer. For example, standard law school classes don’t teach the business side of a law firm. Even extensive upper-level writing classes don’t teach how to work efficiently with time pressures while producing excellent deliverables. As a first-year associate, the variety of internal and external pressures can be overwhelming: getting the law right, knowing all of the facts, writing well, understanding the business perspective, being efficient with time and resources, meeting billable hours, connecting and networking in the community, staying up-to-date on changes in the law, building a brand, communicating effectively, and maintaining a healthy personal, emotional and mental well-being—all at the same time! These ongoing factors create an environment where it is easy to feel stuck between having confidence and being overwhelmed by the skills left to learn. Four months in, I’ve resolved that life as a new associate is

about finding the balance between my insecurities and my confidence. Finding that balance feels easy on some days and impossible on others, and it is complicated by the fact that “you don’t know what you don’t know,” which can make it difficult to ask the right questions and offer valuable opinions. I’ve found that this tension exists most often when I’m working on a team and trying to learn my role within that team. I’m often asked for my opinion or thoughts, and I’m encouraged to speak up. Although there’s no external pressure in these situations, internally, it can feel like a trap. This is especially true when working with lawyers who have decades of experience. I convince myself that surely they’re operating on a completely different level than myself, and anything I have to say will be irrelevant or obvious. But I also know that I have a different perspective and that, often, a fresh perspective can shed light on problems, issues or ideas that a seasoned attorney may overlook. In other words, it takes guts to ask questions that may bring

It takes guts to ask questions that may bring attention to my own inexperience, but I know that, especially in a team setting, embracing inexperience and fresh ideas is important for growth. 16 | Columbus Bar L aw yers Quarterly Spring 2018

attention to my own inexperience, but I know that, especially in a team setting, embracing inexperience and fresh ideas is important for growth. I’ve also learned that the legal profession brings with it certain expectations outside of completing the substantive legal work accurately and efficiently. Part of growing as a lawyer and ensuring opportunities come my way requires networking and community involvement. It can be easy to write off a networking event as low priority when work is building up. But it is important to understand the future and invest in the intangible benefits that will likely come from these opportunities. To begin my legal career, I’ve been fortunate to be part of a firm that seeks the ideas of young lawyers and encourages them to stand out and speak up. To a new associate, there is nothing better than a firm with resources available to help young attorneys manage both the lawyering and human aspects of this job. And that does make this tension easier to navigate. I’m learning to build my confidence in what I can bring to the table, and I’m striving to balance that with an appreciation of all I have left to learn. Daily, I’m surrounded by attorneys who have had incredible achievements, who are the top specialists in their

field and who are fun people to be around, too. I’m energized to learn, and I’m excited to hone in on the skills that I have to offer to the collective knowledge and experience of the firm. Each day continues to be full of opportunities. Some days feel like a marathon that I did not thoroughly train for, while others feel like a personal record. But I look forward to going to work each day and facing the challenges they bring. I consistently remind myself that I am incredibly lucky to be in a career where I get to work on interesting, important and compelling issues, and that my colleagues and I are able to advocate for the people and organizations intimately affected by those issues. After looking forward to it for nearly my whole life, it’s exciting to be one of the newest members of this esteemed profession. While I hope to one day feel that I have it all figured out, I’m grateful for new challenges and the continuous opportunities for growth that seem to never cease in this career.

Lindsey Roberts, Esq.

Bricker & Eckler LLP lroberts@bricker.com

17 | Columbus Bar L aw yers Quarterly Spring 2018

“Network to Get Work”, “It’s Who You Know”, and Other Unhelpful Proverbs BY HANNAH BOTKIN-DOTY In my practice, I am what is affectionately called the “Gripper and the Grinner” or “Rainmaker.” As one of the more outgoing and outspoken members of Artz, Dewhirst and Wheeler LLP, part of my job is to use my naturally gregarious personality to go out into the world and make connections with other attorneys and professionals in the area to promote the firm and generate business. Now, anyone who has tried to create professional connections or find gainful employment has heard that age old phrase, “It’s Not What You Know, It’s Who You Know.” While there is truth to this saying, I would venture to say that it is incomplete. The “Know” aspect of any relationship is the bare minimum. Just because you know someone doesn’t mean that you have a meaningful relationship that can provide you with the professional benefits you seek. A mantra I try to build my professional relationships on is more evolved: “Know, Like, Trust.”

KNOW In this technological age, the “Know” portion of the process is all too simple. It’s as easy as sending that LinkedIn ® invitation, or Facebook ® friend request. In the real world, all it takes to “Know” someone is the initiative to introduce yourself and start a conversation. Before I try to approach someone, I find something that

I like about them. Nice tie? Confident demeanor? Their proximity to the snack table? Whatever you like. Then I approach them with a smile and extend my hand and introduce myself. When they take my hand, I make my handshake firm, keep eye contact, smile and tell them I am pleased to meet them, because I am. That’s it.

LIKE The next stage of the process is “Like.” I give the person I am trying to connect with every opportunity I can to like me. I am polite; I ask questions and try to find a topic that interests them to start our conversation. I treat this person as a new friend, not a business opportunity. I keep smiling, nod when I agree or understand something they have said, and find that essential common ground. You will know that you have reached the “like” stage with your new friend when they drop that age old networking phrase: “So what do you do for a living?” This stranger as of five minutes ago is now expressing interest in you! This is your opportunity to move into the next stage: Trust.

TRUST When someone asks me what I do for a living, they are giving me a shining, golden opportunity to build the initial foundation for Trust to be formed. They have just offered me the next 60 seconds of their life to listen to “what I do.” Instead, I use the time to tell them who I am. Trust is not earned without sincerity. In the end, the words that come out of my mouth are not as important as the authenticity and feeling behind the words that

18 | Columbus Bar L aw yers Quarterly Spring 2018

Above all, Know, Like and Trust yourself. Know your business and how your talents and skills can be an asset to other professionals. will leave an impression. I am fortunate to absolutely love what I do. It’s my voice on the phone. It’s my choice to take a client’s case and it’s my privilege to see it through. I tell my new friend the truth about who I am, because in the end, authenticity is the bedrock of any relationship personal or professional. Yes, you should “Network to Get Work” but don’t ever stop there. Building the “Like” and the “Trust” is a commitment. If someone gives you their card, follow up with them! Emails are good, phone calls are better. Act like you want to get to know them better because you do! Even if it’s clear that they have no business potential for you at the outset, maintain that connection and build that friendship. A friend is always a good thing to have.

young professional in the big world of business can be daunting, but as with almost everything else in life, “practice makes perfect.” So join me, and go forth into the world. Arm yourself with your self-assuredness, a smile and a stack of business cards. You’ll be just fine.

Not everyone out there is a Gripper and a Grinner. If you take anything away from this post, it is to be authentic and work with what you have! If you are less interested in large groups and want a smaller pool to draw from, try joining a dining circle or a bar association committee. If you’re even less inclined to seek out contact with new people, start with contacts and networks you already have! Send a well thought out and organized email to a former professor or colleague that already knows and likes you; and ask them to refer you to a useful source or association. Above all, Know, Like and Trust yourself. Know your business and how your talents and skills can be an asset to other professionals. Like getting to know other people, everyone is different and has something to offer you, even if it’s just perspective. Trust your instincts and follow your gut – they are the guiding rod that will set you apart. Getting a foothold as a

Hannah Botkin-Doty, Esq.

Artz, Dewhirst & Wheeler, LLP hlbotkindoty@adwllp.com

19 | Columbus Bar L aw yers Quarterly Spring 2018

Healthy Lifestyle Tips

for Young Lawyers BY JEREMY R. ABRAMS

The life of a young attorney can easily be consumed by work demands at the expense of physical and mental health. We tend to neglect healthy habits because it can be difficult to justify personal maintenance when dealing with complex projects, social outings and of course, the almighty billable hour. Three things you can do to live a little healthier are sleep, eat well and exercise. Young lawyers tend to neglect sleep despite research that continues to show its importance on the body and mind. The National Sleep Foundation recommends that the average adult gets between seven and nine hours of sleep per night. Donâ&#x20AC;&#x2122;t panic: remember this is just an average. Every body is different and requires a different amount of sleep. The important thing is to find out how much sleep you need and to make sure you get that many hours consistently. Unfortunately, this is a trial and error process, but a good tip is to try to go to bed and wake

up around the same time every day (or at least every week day). While it may seem like there are not enough hours in the day, you may be surprised by how much more efficient and effective you can be on proper sleep. Attorneys can also have difficulty with keeping a healthy diet. The struggle is always there: rushing through a donut or skipping breakfast altogether, maybe remembering to eat something for lunch or stuffing your face with fast food, and collapsing into comfort food at night and on the weekends (not to mention alcohol). Sound familiar? These pitfalls are avoidable! Here are some strategies that have helped me with my diet:

1. Plan your meals for the week and grocery shop over the weekend. 2. Bring lunch to work. It saves time and ensures you can get quick nutrients in the middle of the day.

Every young lawyer wants to make a good impression and do good work. One of the easiest ways to set yourself up for success is to maintain a healthy lifestyle so you can focus your energy on your work. 20 | Columbus Bar L aw yers Quarterly Spring 2018

3. Eat a healthy breakfast! Whether it’s a smoothie you prepped the night before or healthy cereal you have at work, get something with fiber and protein early in the day. 4. Relax on the alcohol. It contains a deceptive amount of calories and leads to lots of other issues. Another habit that can fall to the wayside with a busy work schedule is physical exercise. The World Health Organization recommends adults get at least 150 minutes of moderate physical activity per week. Whether you are the type of person who needs a trainer to push you, prefers the “me time” of working out alone or needs a team sport to make exercising fun, Columbus has something for you. As an added incentive, many firms, companies and insurers now offer discounts or rewards for working out.

Let’s be honest, the problem is figuring out how to fit exercise in to your schedule. Keep it simple, pick a part of the day and stick to it. Morning workouts kick start your metabolism and guarantee you get your workout in, but they require you to wake up earlier. Lunch workouts are great if you have a gym close to work or in your building and can relieve stress in the middle of the day, but they can also leave you sweaty for the afternoon and with little time for food. Evening workouts are great for getting tired before bed but are easily neglected by a busy, exhausting day. Don’t know what type of workout person you are? There’s only one way to find out – get to it! Every young lawyer wants to make a good impression and do good work. One of the easiest ways to set yourself up for success is to maintain a healthy lifestyle so you can focus your energy on your work. To put your best foot forward in the office, eat right, sleep well and exercise. Your body (and your boss) will thank you.

Columbus Young Professionals, Columbus Parks and Recreation and Sports Monster Columbus organize intramural sports leagues throughout the year for both men and women. Playing intramurals provides a great teambuilding and networking opportunity, and some firms may even sponsor the team! Additionally, a variety of club sports allow people to play their favorite sport while becoming part of an established team. Sports are a wonderful gateway to healthy exercise because playing can seem like much less of a chore than going to the gym.

Jeremy R. Abrams, Esq.

Murray, Rauzi, Kidwell, & Cunningham, Ltd. jabrams@mrkattorneys.com

21 | Columbus Bar L aw yers Quarterly Spring 2018

Points of Practice

Working from Home: Observations from a Mid-Career Employment Lawyer by BRIGID HEID For years I have advised employers on the legal risks associated with allowing employees to telecommute, or work from home. I’ve helped my clients adopt policies and agreements defining expectations while ensuring the business interests are protected. Recently, though, I have a new appreciation on the practical challenges of working from home after being forced to set up my office and work remotely for almost eight weeks straight while recovering from foot surgery. (The details of my foot injury and the surgical procedure are better left for another day and different publication.) Over the course of my career, I have had many occasions to work from home, whether on the weekends, late at night or while traveling, and felt fully prepared for this telecommuting experiment. After all, how different

could eight weeks be? Turns out, quite different. Here’s what I observed:

Office set up is vital.

Because I have always preferred to go into the office to work, I do not have a dedicated office space at home, and I realized for this extended arrangement I would need to have a home office. I initially set up my office in our living room but the signal from our “antiquated” 4-year-old modem could not reach the far side of the house so I was forced to relocate to the center of the house and set up at the kitchen table. One week after surgery, I was ready to try out my new space. Within hours, my foot was throbbing, and I realized I would need to find a way to better elevate my leg. Without an ergonomic consultant at the ready, my solution was to sit perpendicular to the table with my right leg resting on a chair in front of me. In turn, I rearranged my entire desktop: my wireless keyboard on my lap, my computer mouse on a small table to my right, and to avoid unnecessary neck strain, my computer and extra monitor to the far end of the table. Not ideal, but it worked as my foot recovered.

In-person human interaction can’t be overstated. Without my office mates around me and the hubbub of downtown Columbus, I felt somewhat isolated. It’s not that I wasn’t interacting with clients or colleagues on a frequent basis, I was, but I apparently took for granted the well-being I gain from being around other people. The introvert in me doesn’t mind some quiet, but the extrovert in me definitely finds comfort in hearing the human voice. My solution was to stream NPR radio for background noise and to call my assistant at least once a day. I felt more connected to the office and the world. 22 | Columbus Bar L aw yers Quarterly Spring 2018

Recently, though, I have a new appreciation on the practical challenges of working from home after being forced to set up my office and work remotely for almost eight weeks straight while recovering from foot surgery. Establishing a routine to get in a work mindset was necessary. Before my surgery, I

sought advice from friends who work from home on how not to get distracted by the home environment. Each person had their own method for getting out of home mode and into work mode. One person walks her kids to the bus stop and then returns to the house ready to go to work. Another gets in his car and drives around the block to go to the “home office.” Since walking outside and driving were not options with my foot, I had to find my own trigger. What worked best for me was following my normal morning routine as best I could. Taking a shower, getting dressed in business clothes (at least from the waist up), styling my hair and putting on makeup were my cues that it was time for me to get to work.

In some ways, I worked more efficiently at home. I had fewer distractions at home and could get more done in big blocks of time. My increased efficiency was apparent when I made a few failed attempts to return to work during my recovery. Unscheduled interruptions (welcomed or not) definitely ate into my work time. At home, though, I would find myself engrossed in work only to realize the sun had moved across the southern sky and my husband had returned from his own work commute. Speaking of commute, that was one thing I did not miss and having an extra hour or so each day didn’t hurt my efficiency.

Embarrassing moments are unavoidable. Although a crying baby was not a concern, I did have to apologize on more than one occasion when talking to clients on my iPhone when our dog would decide to bark at an imagined existential threat, the telephone land line would ring (installed in case of a zombie apocalypse) or the ill-timed courier would come to the front door. A mute button can reduce, but not eliminate, these embarrassing moments from happening. I learned to apologize quickly and be

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thankful for being blessed with such understanding, gracious clients. Overall, I enjoyed my involuntary stint working from home and I am happy to be back in my office environment, much preferring to work alongside my colleagues in the heart of the city with Starbucks right across the street.

Brigid E. Heid, Esq.

Eastman & Smith Ltd. bheid@eastmansmith.com

23 | Columbus Bar L aw yers Quarterly Spring 2018

Points of Practice

Post-Decree Co-Parenting

is No “Piece of Cake” by Charlotte Parsons If parenting is hard work, then post-decree co-parenting is hard work, ten-fold. As an attorney, you’ve repeatedly guided parents to the best process for their needs, be that mediation, counseling or litigation, but within a few months, here they come again: frequent-filers. More than contentious, these parents are suffering deeply, and so are their children.

Have you ever considered using a dispute resolution process called parenting coordination (PC)? “Parenting coordination” means a child-focused dispute resolution process ordered by the Court to assist parties in implementing a parental rights and responsibilities or companionship time order using assessment, education, case management, conflict management, coaching, or decision-making. “Parenting coordination” is not mediation subject to R.C. Chapter 2710, R.C. 3109.052, or Sup.R. 16 nor arbitration subject to R.C. Chapter 2711 or Sup.R. 15. Ohio Counties are required to have a PC local rule and maintain a roster of approved PCs.1 Simply put, PCs are dispute resolution professionals who are court ordered to help parents implement their parenting plans. We are like an anti-inflammatory to co-parent conflict, and a cardiac bypass to clogged communication.

So what are the benefits of PC? William Sieloff, Administrative Magistrate and Legal Director at Franklin County Court of Common Pleas Domestic Relations and Juvenile Branch, said, “The PC process is directed towards parents that continually have issues with communication and decision-making, resulting in constant court contact.” “It is a hybrid process that pulls in elements from mediation and guardian ad litem disciplines, to work closely with the parties to resolve parenting related issues in a more expedited fashion than a court filing may otherwise allow, as well as to avoid the ‘positioning’ that often occurs during active litigation,” Sieloff added. Franklin County Magistrate David Black agreed: “I tell attorneys and litigants that PCs are a tool available to the court to help certain families avoid repeated rounds of litigation by providing them with a third party who is capable of helping them negotiate resolutions, but with the authority to make decisions should the negotiation process stall.” “By working with a PC, there is an ability to more closely monitor situations that, left unchecked, can inflame tensions or result in more court contact. The goal is to work collaboratively with the parties to identify issues related to their parenting process, not the legal process,” Sieloff said. “PCs receive extensive training and are keenly aware of these boundaries.”

24 | Columbus Bar L aw yers Quarterly Spring 2018

The PC process is directed towards parents that continually have issues with communication and decision-making, resulting in constant court contact. So if parenting coordination is neither mediation nor arbitration, what does a parenting coordinator do? PCs may be called upon to make a decision for a family due to an extreme need or timeliness—for example—on Thanksgiving afternoon. But more often than not, the PC’s role is to assist parents to reach an agreement to settle their current dispute. Included in the PC order may be specific directives, specific limitations and ideally the actual contract provided by the assigned PC. By statute, PCs may not make decisions regarding protection orders, changes in the designation of the primary residential parent or legal guardian, or the primary placement of a child. According to Sieloff, a PC “can see shortcomings or issues with one or both parents’ approach to parenting and request other steps to assist the parents, such as parenting classes or mental health counseling.” PCs may hail from a variety of backgrounds, but should have experience educating

and coaching parents in conflict in order to help coparents function better. Because PCs do not provide legal advice or therapy, lawyers and other professionals will need to remain available to parents throughout the PC process, which is commonly ordered for two years.

What clients are best suited for the PC process? Black says the PC process is “best suited for Highconflict families, families who are repeatedly in court, families that want to work together but sometimes need a little help to get started and families with specialized parenting plans.” However, the PC process is not for every family. “Certain parties may not derive a great benefit from the process, or may not require it. Typically, families who are new to the Court process and have not had a chance to engage in the mediation or family

25 | Columbus Bar L aw yers Quarterly Spring 2018

counseling may benefit from those first,” Sieloff explained. “Many times, these services can help parents develop the skillset necessary to begin to resolve matters independently of court involvement. Oftentimes these parties have an ability to reassess their own priorities and motives, and can see the benefits to their children in reaching resolution to certain matters short of all-out litigation.” Families are less-suited for the PC process when “at least one party refuses to follow court orders or engage in any process. I find they refuse to contact the PC or pay the fees and nothing is going to work for them outside of strict enforcement of court orders,” Black said. “Families new to the court system sometimes need to have their ‘day’ in court to understand why settlement and cooperation are more beneficial and cost effective.”

“The majority of the families we see would prefer peace and cooperation over constant strife. Any resource that allows us to help achieve reduced conflict is going to be a positive advancement for the family and the court.”

More Information: The Association of Family and Conciliation Courts, AFCC, is the primary organization for professional guidelines, etc. For starter resources, Debra K. Carter’s book, CoParenting After Divorce, A GPS for Healthy Kids, 2015, is a great resource for parents considering or beginning the PC process, and her book for professionals, Parenting Coordination: A Practical Guide for Family Law Professionals, 2011, is a standard. 1

Franklin County Local Rule DR42/JU39, and subject to Sup.R.90

So what is the takeaway for PC as a dispute resolution process? “Ultimately I feel that the PC process will allow courts to assist families on a much greater and more individualized level. It’s a very new process so we are all trying to work out the kinks and fine tune it to be as effective as possible,” Black said.

Charlotte Parsons

Listen Parenting charlotte@ListenParenting.com

26 | Columbus Bar L aw yers Quarterly Spring 2018

Spring ‘18: Environmental Law

Legal Medical Marijuana in Ohio Should Lead to Better Environmental Practices by Luis M. Alcalde, Rachel Friedman and Lloyd Pierre-Louis Just as it has in 28 other states, legal medical marijuana has arrived in Ohio. This year, 24 companies will grow and sell their initial medical marijuana crops to 40 companies that will process those crops into products such as capsules, patches, tinctures, balms, ointments, edibles and oils for vaping. In turn, these processors will sell their pre-packaged products to 60 dispensaries for ultimate sale to registered patients with a doctor’s recommendation. The Ohio medical marijuana program is set to be operational by September of 2018. According to numerous national polls, a clear majority of Americans support the legalization of marijuana. As to medical marijuana, the pro-legalization numbers exceed 90 percent. Roughly 60 percent of the U.S. population now lives in states that have some form of legal marijuana, medical and/or

recreational. The economic and tax benefits projected from legalizing the marijuana industry nationally are easily in the tens of billions of dollars. However, often overlooked in all the discussion of the medical benefit to patients and the billions of dollars in economic growth is the positive environmental impact that legalization can bring about. Energy consumption of cannabis production can be significant and vary widely between different methods of growing operations. Electricity consumption can vary from below 1 kilowatt hour per square foot of canopy for outdoor solar powered facilities to more than 140 kilowatt hours per square foot for completely indoor grows.1 Furthermore, at least one scientific review determined that a mature

cannabis plant can consume up to 22.7 liters of water per day in the 150 day growing season. By comparison, a wine grape plant uses approximately 12.64 liters of water per day.2 Legal marijuana production also involves the use of fertilizers and pesticides and the need to dispose of marijuana waste products. Nevertheless, from an environmental perspective, a regulated marijuana industry is better than the unregulated and illegal black market. In touting its “Domestic Cannabis Eradication Program,” the Drug Enforcement Agency (DEA) states that “marijuana is the only major drug of abuse grown within the U.S. borders.” Statistics on illegal activities are hard to obtain. However, in 2016 the DEA reported

Often overlooked in all the discussion of the medical benefit to patients and the billions of dollars in economic growth is the positive environmental impact that legalization can bring about. 27 | Columbus Bar L aw yers Quarterly Spring 2018

the eradication of 1,483 outdoor and 634 indoor grow sites in California. The numbers for Ohio were 518 outdoor and 20 indoor grow sites for a total of nearly 20,000 plants. The DEA eradicated illegal marijuana sites in nearly every state. A 2016 report by Arcview Market Research, a cannabis industry company, and BDS Analytics found that black market sales of marijuana accounted for 87 percent of all marijuana sales across North America. Despite the DEA’s eradication program, much, if not most, black-market marijuana sold in the U.S. is grown domestically in illegal outdoor and indoor operations. Numerous journalists and the U.S. Forest Service have reported on the environmental impact of illegal grow operations on national forest lands. In August 2017, the U.S. Forest Service reported that in California alone more than 400 illegal grow sites have been identified in national forests. According to the same report, illegal grow sites have been identified in most states. Illegal grow operations are responsible for dumping tons of banned pesticides and fertilizers, as well as trash, which are, according to the U.S. Forest Service,

The growing number of “legal” states has not killed the marijuana black market. To the contrary, some argue that state legalization has increased the black market by making marijuana more acceptable. Marijuana consumers balance many factors when making buying choices, even in legal states. For example, legal marijuana is generally more expensive because of high state taxes. Moreover, in medical marijuana states like Ohio, patients will have to register with a state agency. The act of registration could endanger jobs, reputations and even rights, such as those related to gun ownership and permits. Nevertheless, the industry expects that more states will legalize marijuana and the federal government will follow in due course. Once that occurs, the legal market will flourish, flooding consumers with highly unique and innovative marijuana products not readily available to the black market. More importantly, the market will educate consumers on the benefits of ingesting products manufactured to strict safety and environmental guidelines, as opposed to unregulated, illegal products that may be marginally cheaper but carry a risk of contamination. To those ends, Ohio’s Medical Marijuana Control Program (MMCP) emphasizes safety, environmentally sound practices and transparency. For example, cultivators are required to establish and implement detailed and verifiable: 1. Standards and guidelines for cultivating, propagating, vegetating, flowering and harvesting medical marijuana, including safety protocols and equipment 2. Policies and procedures for the intended use of pesticides, fertilizers and other agricultural products 3. Standards for the disposal of medical marijuana waste and other wastes.3

poisoning waters and lands and killing animals, aquatic life and vegetation in unprecedented numbers. One U.S. Forest Service employee is quoted as saying that “some of the pesticide is so concentrated [that] animals die in a matter of minutes if not seconds.” Moreover, because many illegal outdoor grow sites are in remote locations, eradication and environmental remediation can be difficult.

The Ohio Department of Commerce plans to maintain a list of permitted pesticides, fertilizers and other chemicals, and will require all pesticides and fertilizers to be registered with the Ohio Department of Agriculture, meet EPA guidelines and be authorized for use on plants intended for human consumption. Strict record keeping and adherence to regulations applies to the use of pesticides, fertilizers and other chemicals.4 Similar regulations apply to processors who must:

28 | Columbus Bar L aw yers Quarterly Spring 2018

The Ohio medical marijuana program is set to be operational by September of 2018. 1. Implement standards and guidelines for processing marijuana plants, refining medical marijuana extracts and manufacturing medical marijuana products 2. Establish policies and procedures for the intended use and sourcing of extraction equipment, solvents and all non-marijuana ingredients 3. Establish standards for the disposal of medical marijuana waste and other wastes. In Ohio, medical marijuana cultivation will occur indoors. Growing facilities will be equipped with sophisticated lighting, HVAC and irrigation systems. HVAC systems capable of purifying indoor air, drying product, dehumidifying and maintaining ideal temperature are common for legal growers. To address energy and water consumption, the MMCP has encouraged cultivators and processors to adopt energy and water conservation plans that minimize the carbon footprint. Legal cultivators will combine energy-efficient lighting systems that emit less heat and require less energy to cool air temperatures with sophisticated HVAC systems to save energy. Automated close-water systems minimize water use, reduce evaporation and eliminate waste with computerized watering cycles. Similar conservation plans are to be implemented that reduce energy and water consumption, and reduce CO2 emissions when processing medical marijuana and transporting it throughout the supply chain. The production of legal medical marijuana products has an environmental impact because of increased energy and water use, the application of pesticides and fertilizers, and the need to dispose of the resulting waste. Nevertheless, when compared to the environmental evils of black market production, the regulated medical marijuana industry is much friendlier to the planet. 1 2 3 4

Luis Alcalde

Kegler Brown Hill + Ritter lalcalde@keglerbrown.com

Rachel Friedman

Kegler Brown Hill + Ritter rfriedman@keglerbrown.com

Lloyd Pierre-Louis

Kegler Brown Hill + Ritter lpierre-louis@keglerbrown.com

State of Oregon, Task Force on Cannabis Environmental Best Practices, Working Document, 08-16-2016 State of Oregon, Task Force on Cannabis Environmental Best Practices, Working Document, 08-16-2016 O.A.C.ยง 3796:2-1-02. O.A.C.ยง 3796:2-2-01.

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Spring ‘18: Environmental Law

Wildlife Trafficking in Ohio:

Disease Runs Rampant by HEATHER ROBINSON When imagining wildlife trafficking, certain images leap to mind: ivory tusks hidden in shipping containers bound from Africa to Asia, for example. Although this scenario certainly occurs, the most-frequently trafficked creatures are often much less exotic than elephants— and the trafficking itself may occur quite close to home. And although we deplore the trade in wildlife for its decimation of species, sometimes the most devastating consequence of wildlife trafficking is the disease threat the animals carry: diseases dangerous to humans, with the potential to devastate billiondollar industries and the lives dependent upon those industries. A case in point: white-tailed deer, tuberculosis and chronic wasting disease, and Ohio’s hunting and cattle farming industries. White-tailed deer are not rare in Ohio, although it was not always so. Deer were extirpated from the state around 1900, a combination

of over-hunting and habitat loss. A restocking program was begun in the 1920’s and today, Ohio deer are among the most sought-after in the nation. Hundreds of high-fenced captive breeding and hunting facilities dot the state, catering to a largely out-of-state clientele. Trophy deer breeding and hunting is a game of millionaires. The players are obsessed with genetics; deer semen and live animals are routinely shipped around the country. Profits can be enormous: bagging a trophysized deer at one of these facilities can cost $50,000 or more. A live doe with a history of producing trophysized bucks can sell for $500,000; famous breeding bucks have sold for over a million dollars. Unfortunately, a host of diseases infect White-tailed deer; captive

deer are particularly at risk due to close living quarters and group feeding stations. One such disease is tuberculosis. For 150 years, the United States struggled to eradicate tuberculosis from its human population. Even after a cure was found for the disease, public health officials struggled with recurring outbreaks until it was discovered that humans contracted tuberculosis from infected cows through both direct contact and the consumption of beef and unpasteurized milk. Endemic tuberculosis disappeared soon after the USDA banned the interstate movement of cows that were not first tested for the disease. When it was later discovered deer also contract tuberculosis, and that deer can spread the disease to cows, the interstate shipment of untested

Sometimes the most devastating consequence of wildlife trafficking is the disease threat the animals carry: diseases dangerous to humans, with the potential to devastate billion-dollar industries and the lives dependent upon those industries.

30 | Columbus Bar L aw yers Quarterly Spring 2018

deer was banned. Today we know humans can contract tuberculosis directly from deer, as well. Brucellosis is another disease carried by, and transmitted between, deer and cows. Humans typically contract it by consuming the meat or milk of infected cattle. In humans, brucellosis symptoms include debilitating fevers and miscarriage in expectant mothers. Perhaps the most disturbing disease carried by Whitetailed deer is chronic wasting disease (CWD). You may recall the panic several decades ago when mad cow disease was discovered in humans, a result of consuming beef contaminated with the disease. Like mad cow disease, CWD in deer is caused by prions— infectious misfolded proteins—that cause holes to form in brain tissue; after an incubation period of at least 17 months, every infected animal dies. The disease progression in cows, deer and humans is similar, although the incubation period in humans is longer— sometimes scores of years. CWD spreads easily between deer via saliva and urine. Recent research confirms prions shed by ill animals can persist in the soil for decades, and that plants grown

in prion-contaminated soil can uptake those prions into the plant itself, infecting animals that consume the plant. Prions are extremely hardy, surviving temperatures as high as 1,112 degrees Fahrenheit and prolonged exposure to radiation. Evidence suggests CWD may pass between deer and cows, and even deer and humans (just as mad cow disease passes from cows to humans). Unfortunately, there is no live-animal test for CWD; it can only be diagnosed through necropsy. Ohio’s regulatory scheme allows deer breeding facilities to be “certified” free of CWD if certain stringent rules are followed. To maintain its certified status, only deer from other “certified” herds can be moved into the facility. The admission of even a single non-certified deer into a facility would render the entire facility non-CWD-free. This is where wildlife trafficking enters the picture. A CWD-free herd of deer is more expensive to create and maintain than its non-certified counterpart. Purchasing new breeding stock—in the ever-escalating game of creating larger-antlered trophy bucks—is costlier if you follow the rules and accept stock only from certified herds. Unscrupulous breeders and hunting preserve owners create false documentation for non-certified

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deer and even “hide” entire shipments of deer by using back roads to bypass agricultural inspections stations, disguising deer hauling trailers as race car trailers (etc.), traveling late at night and creating false shipping paperwork. False paperwork and hidden shipments also occur when facilities ship deer that haven’t been tested for tuberculosis and brucellosis, usually because they don’t want to pay for testing and documentation or have reason to believe their deer are infected.

What happens when we work together?

Central Ohio is healthier.

What is the harm in shipping, within Ohio and between states, untested deer in violation of the law — in other words, trafficking in wildlife? Clearly the first danger is to public health: deer infected with tuberculosis and brucellosis (and maybe CWD) can directly infect humans with these diseases. Another potential harm: diseased deer may infect cows. Due to the human health threat, cattle herds testing positive for tuberculosis, brucellosis or mad cow disease are immediately quarantined by agricultural officials, which can in turn lead to the quarantining of an entire state’s beef and milk products industries, resulting in catastrophic economic losses. Finally, society has a vested interest in protecting wild deer herds, both for the sake of society’s right to enjoy those herds and to prevent the crippling of a hunting industry which, excluding high-fenced breeding and hunting facilities, employs numerous persons and adds approximately $1.64 billion dollars to Ohio’s economy every year.

To assist your clients in fulfilling their charitable interest in health and wellness through the CMA Foundation, please contact: Weldon E. Milbourne 614.240.7420 wmilbourne@cmafohio.org

In Ohio, wildlife trafficking involving untested deer is investigated by the ODNR Division of Wildlife and the U.S. Fish & Wildlife Service, and prosecuted jointly by the United States Attorney’s Office and the Franklin County Prosecuting Attorney’s Office. Half a dozen defendants have been convicted of violations of the federal Lacey Act, one of the oldest conservation laws in the United States. These cases offer an example of the less-commonly considered side of wildlife trafficking: common animals, not necessarily poached from the wild, whose illegal interstate movement nonetheless threatens public safety, the health of wild animal populations, and the integrity of pursuits and industries important to our way of life.

Heather B. Robinson, Esq.

Franklin County Prosecuting Attorney: Environmental Crimes Unit hrobinson@franklincountyohio.gov 32 | Columbus Bar L aw yers Quarterly Spring 2018

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Spring ‘18: Environmental Law

Climate Change

Law at a Crossroads by Cinnamon Carlarne The international climate change regime revolves around three primary instruments of international law: the United Nations Framework Convention on Climate Change (UNFCCC), the 1997 Kyoto Protocol and the 2015 Paris Agreement. The 2015 Paris Agreement represents the culmination of efforts, begun in Copenhagen in 2009, to create a more flexible and bottom-up international law framework for addressing climate change. This contribution will provide a very brief overview of the Paris Agreement and relate the agreement to the evolving field of U.S. climate law. As background to this brief discussion of the Paris Agreement, it is important to keep in mind the sharp difference between international and domestic law. In a country like the United States, new laws can be made by a majority vote of legislators. There

is, of course, no equivalent to the U.S. Congress in the international sphere, and as a result, treaties are only binding on nations that ratify them. Thus, in the case of climate change, an effective solution requires voluntary cooperation on a global scale. As domestic experience shows, shaping effective climate policy even in a single country is difficult enough. It is even more difficult to obtain agreement from countries across the world with very different economies, governance systems and political dynamics. As a result, it should not come as a surprise that the process has been protracted and contentious, with the United States playing an

important but varying role at each stage in the development process. At its core, the Paris Agreement commits the Parties to “holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.”1 Additionally, Parties to the agreement commit to increasing pathways towards adaptation, and to improving climate finance. The Agreement does not embody or impose upon states any set, legally binding emissions reduction obligations. Instead, the primary way the Agreement

With respect to emissions, the United States is the largest historical emitter of greenhouse gases and ranks second only to China with respect to current emissions levels.

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envisions meeting these goals is by having each Party submit a statement of commitment called a Nationally Determined Contribution (NDC). Through the NDC process, Parties define their ambition for emissions reductions. Beyond setting out mitigation commitments, Parties may also use the NDC process to define how they plan to adapt to climate change and to set out finance needs and goals. In essence, the new framework flipped the paradigm of international law from a top-down to a bottom-up approach to establishing international commitments on climate change. The new approach, at least in theory, created the flexibility for each country to assess its overall situation and set targets that best suit its national circumstances and allow it to be ambitious in ways that are compatible with individual state characteristics, e.g., addressing deforestation, focusing on peaking emissions, committing to increasing renewable energy capacity or aiming for absolute emissions reductions. The individualized nature of the process also creates room for Parties to lay out what they think of as their successes to date, the areas that they perceive to be the most critical for international attention, particular domestic concerns and any other matters that they

believe should be highlighted. Consequently, Parties have the flexibility to approach the NDC submission process as a platform for submitting clean and simple commitment statements or as a vehicle for submitting more comprehensive statements about national circumstances and national perspectives on climate change. Using the United States as an example, as a snapshot view, the U.S. NDC is five pages long and contains concise and precise statements of what the country is willing to do; there is no excessive detail or justification offered for what and why the United States commits to doing. At the heart of the United States’ NDC is an intention “to achieve an economywide target of reducing its greenhouse gas emissions by 26-28 percent below its 2005 level in 2025 and to make best efforts to reduce its emissions by 28 percent.”2 This commitment was made during the Obama Administration based on the evolving regulatory regime under the Clean Air Act. For now, the U.S. NDC remains in effect. The future of the United States’ participation in the Paris Agreement, however, was muddied by President Trump’s 2017 decision that the United States should withdraw from the agreement. This decision does not have any immediate effect. Article 28 of the Paris Agreement provides that “[a]t any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification.” The withdrawal then takes effect upon the “expiry of one year from the date of receipt . . . or on such later date as may be specified in the notification of withdrawal.” Thus, the U.S. cannot give formal notification of its withdrawal until approximately November 4, 2019, three years after the agreement went into force. Withdrawal would take effect one year later, just before

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the 2020 election, unless the notice itself set a later date to be effective. Nevertheless, President Trump’s announcement creates uncertainty about future U.S. participation in the regime. Similarly, at the domestic level, the Trump Administration has announced plans to roll back existing Obama-era efforts to limit greenhouse gas emissions under the Clean Air Act. While the exact form the rollbacks will take, and how they will be received by the courts, remains unclear, one of the primary targets of the rollbacks is the Clean Power Plan. The Clean Power Plan is the Obamaera Clean Air Act regulatory regime that would have allowed the United States to achieve the emissions reductions commitments it made in its NDC. Regardless of what form the rollbacks take, once the EPA and other agencies have responded to Trump’s directives with more concrete action, we can expect to see considerable, lengthy litigation. This domestic level uncertainty complicates the United States’ participation in the Paris Agreement and undermines the leadership role that the United States played in international climate change politics during the Obama administration.

The United States, of course, is an important actor in international climate change law for political, economic and pure emissions reasons. With respect to emissions, the United States is the largest historical emitter of greenhouse gases and ranks second only to China with respect to current emissions levels. Thus, any effective international response to climate change requires active participation by both the United States and China. So far, other major parties to the agreement, including the EU and China, have said that a U.S. withdrawal would not affect their resolve. And while it is clear that efforts to rollback existing domestic climate regulatory programs will proceed, albeit slowly, it remains to be seen whether Trump’s announcement of U.S. withdrawal will erode the vitality of the Paris Agreement and ongoing efforts to advance international cooperation on climate change. 1

Paris Agreement, Art 2 (Dec. 13, 2015), in UNFCCC, Report of the Conference of the Parties on its Twenty-First Session, Addendum, at 21, UN Doc. FCCC/ CP/2015/10/Add.1 (Jan. 29, 2016). 2

USA INDC, http://www4.unfccc.int/ndcregistry/PublishedDocuments/United%20 States%20of%20America%20First/U.S.A.%20First%20NDC%20Submission.pdf.

Cinnamon Carlarne, Esq.

The Ohio State University Moritz College of Law carlarne.1@osu.edu

36 | Columbus Bar L aw yers Quarterly Spring 2018

Spring ‘18: Environmental Law

A Tilted Balance: Emerging Regulation of Nutrient Pollution in Ohio by Rees Alexander For many Ohioans, the term “nutrient pollution” was unfamiliar until the summer of 2014. That summer, harmful algae blooms in Lake Erie generated microcystin, a toxin that made its way into the City of Toledo’s drinking water. The City instructed 400,000 people to not drink or cook with tap water, prompting national media coverage. Environmental stakeholders turned their focus to nutrient pollution, the process in which excess nutrients—primarily phosphorus and nitrogen—flow

into bodies of water and fuel the growth of algae, including harmful algae blooms. In order to understand current efforts to address Ohio’s nutrient pollution problem, it is necessary to understand the fundamental legal framework regulating water pollution. The Clean Water Act, through its permitting requirements, limits pollution from fixed points, so-called “point sources,” such as industrial and sewer pipes, including city-owned wastewater treatment plants. However, nutrient pollution primarily comes from sources of pollution other than these point sources, or “nonpoint” sources, such as runoff from fertilizer or manure used in

agricultural operations. These nonpoint sources are broadly dispersed over thousands of square miles. The Ohio Department of Agriculture generally oversees some agricultural nonpoint sources. Ohio, like other states, requires wastewater from regulated point sources such as municipal sewage treatment systems and industrial sources to be treated. However, these laws do not require all types of pollutants to be removed before the wastewater is discharged back into the environment. Instead, the State issues permits that specify acceptable maximum limits of pollutants in discharged wastewater. This is based on

While Ohio’s efforts with respect to point sources have helped to reduce nutrient pollution, a growing body of data suggests that nonpoint sources such as agriculture are the primary cause of nutrient pollution.

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the idea that trace levels of pollutants need not be removed when acceptably low levels of these pollutants can be diffused without posing a risk to human health or the environment. With respect to nutrient issues specifically, Ohio EPA and U.S. EPA have worked to reduce excess nutrient levels since long before 2014. U.S. EPA set a policy in 1994 requiring that municipalities develop long-term control plans to control pollution that can contribute to nutrient problems from combined sewer systems, which treat both sanitary sewage and runoff. These combined systems can become inundated during rain events, frequently causing the discharge of untreated or partially-treated sewage. U.S. EPA has required improvements to these systems in over 99 percent of municipalities in the Great Lakes Basin. Additionally, Ohio EPA has long imposed a 1.0 mg/L phosphorus limit on all major Lake Erie Basin dischargers. After 2014, Ohio has undertaken several other specific actions to combat nutrient pollution, focusing primarily on point sources.

Nutrient Mass Balance Study. Ohio EPA began implementing a biennial study to evaluate the sources of nutrient pollution in 2016. The initial â&#x20AC;&#x153;Nutrient Mass Balance Studyâ&#x20AC;? evaluated the contribution of phosphorus in watersheds draining into Lake Erie and the Ohio River. Perhaps unsurprisingly, the

study concluded that the largest source of phosphorus is from the largely unregulated nonpoint sources, which are composed primarily of pollution from agricultural runoff. In the four watersheds identified as most significant by Ohio EPA, nonpoint sources accounted for 87, 84, 94 and 60 percent of phosphorus loading.

Great Lakes Binational Water Quality Agreement. In 2012, the U.S. and Canada amended the Great Lakes Water Quality Agreement, which was initially signed in 1972. On June 13, 2015, the governors of Ohio and Michigan and the Premier of Ontario committed to a specific goal of reducing phosphorus loadings to Lake Erie by 40 percent from 2008 levels. The signatories aim to reach this goal by 2025. In November 2017, the Ohio Lake Erie Commission created a Domestic Action Plan that identified specific actions necessary to meet these nutrient reduction goals.

Phosphorus Technical and Financial Capability Study Requirements. Ohio EPA required municipal sewage treatment systems to conduct studies by December 1, 2017 to evaluate their ability to reduce their phosphorus concentration in discharged wastewater to 1.0 mg/l. Although all large publicly-owned wastewater treatment plants in the sensitive watersheds of Northern Ohio near Lake Erie have this type of a limit, many other large treatment

Photo: NASA Earth Observatory

plants and industrial sources in other parts of the states do not have such stringent limits.

Limited Action with Nonpoint Sources Such as Agriculture. The General Assembly has enacted a requirement that fertilizer applicators become certified and educated on the handling and application of fertilizer. It has also passed a law limiting the spreading of manure or fertilizer in the Lake Erie Watershed when the ground is frozen or rain events are anticipated. However, the focus on nonpoint source regulations continues to be on voluntary, non-enforceable nutrient reduction efforts, such as nutrient management plans and best practices like the “4R” program, which encourages use of the right source of nutrients at the right rate, time and place. Ohio EPA continues to focus on further reducing nutrient contributions from the highly-regulated point sources. Recently, Ohio EPA has indicated that it will attempt to introduce legislation introducing strict 1.0 mg/l phosphorus limit for all municipal and industrial wastewater treatment systems. It has done so at least in part based on its determination that the costs to comply with such requirements at smaller facilities “could be a couple thousand dollars”—a conclusion that has already been widely disputed

in the regulated community. The City of London, for example, has reported that its costs will exceed $3 million. By contrast, Ohio Department of Agriculture does not appear to be pursuing aggressive regulation of nonpoint sources. Ohio EPA’s legislation would undermine the efforts of stakeholders who favor a dynamic approach to nutrient regulation for point sources that accounts for whether the discharge would actually impact water quality in the receiving water body. While Ohio’s efforts with respect to point sources have helped to reduce nutrient pollution, a growing body of data suggests that nonpoint sources such as agriculture are the primary cause of nutrient pollution. Moving forward, it appears unlikely that Ohio will be able to achieve the State’s ambitious nutrient reduction goals by pursuing an unbalanced regulatory strategy that focuses largely on point sources.

Rees Alexander, Esq.

Squire Patton Boggs (US) LLP rees.alexander@squirepb.com

39 | Columbus Bar L aw yers Quarterly Spring 2018

Spring ‘18: Environmental Law

Go with the Flow:

Ohio Groundwater Rights by IAN F. Gaunt Franklin County uses about 212 million gallons of water every day—enough to fill about 3.5 million bathtubs, or turn the statehouse grounds into a 54-foot deep swimming pool. One third of that is groundwater. Like most natural resources, water is protected by environmental safeguards that regulate its quality and use. Hydraulic fracturing discharge, endangered species protection and well-permitting all sit at the junction where environmental law and water law meet. And part of Ohio’s water law is a property-rights regime: Every property owner in Ohio has a useright in the water underneath their ground. Historically, Ohio’s water law has been about what you can legally do to get water off your property. Groundwater was thought to be “so secret, occult and concealed, that an attempt to administer any set of legal rules … would be involved in hopeless uncertainty, and would be, therefore, practically impossible,”

(as the Ohio Supreme Court wrote in 1861). For over a century, Ohio placed few restrictions on what a property owner could do with their groundwater—and offered no protection against a neighbor using all that water. But in 1984 the Ohio Supreme Court adopted the law of reasonable use for groundwater. You have the right to the reasonable use of water under your property. If your neighbor unreasonably interferes with your use-rights to that water, your neighbor has to pay you damages. If your city does the same thing, the city has to pay just compensation.

in McNamara v. Rittman. After cities near Akron and Columbus developed water-management projects that dried up nearby private wells, the owners sued in federal court under the Fifth Amendment’s just compensation clause. When the cases made their way to the Sixth Circuit, the court of appeals certified a question to Ohio’s Supreme Court: Does an Ohio homeowner have a property interest in so much of the groundwater located beneath the landowner’s property as is necessary to the use and enjoyment of the owner’s home?

The Supreme Court returned to the property-right regime for Ohio’s water twenty years later

The Supreme Court answered that the property owners do indeed have a property right in

For over a century, Ohio placed few restrictions on what a property owner could do with their groundwater—and offered no protection against a neighbor using all that water.

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the water underneath their land. As the Court stated, “[t]he title to property includes the right to use the groundwater beneath that property. The ‘reasonable use’ standard set forth in [1984] greatly expanded water rights protection, reflecting the importance of water rights to every piece of property.” Water rights are appurtenant to real property, and protected by the federal constitution. And the Ohio constitution: Several years after McNamara, Ohio’s voters approved a constitutional amendment that engraved the reasonable use standard as Article I, Section 19b of the Ohio constitution. But despite predictions that McNamara and Section 19b would flood the courts with waterrights cases, few claims have gone forward. Courts have only cited McNamara a handful of times, and few of those cases find unreasonable interference in a water use-right. A notable exception is a 2015 opinion by the Southern District of Ohio in a suit brought by the Little Hocking Water Association against DuPont. Little Hocking won partial summary judgment on

trespass and conversion claims, a reminder that McNamara and Section 19b aren’t limited to claims against a government. One reason why McNamara didn’t lead to a growth in water-takings cases might be how Ohio’s prohibition against uncompensated takings is enforced. In Ohio, if a property owner has suffered an uncompensated taking the remedy is usually a mandamus action to compel whatever government is involved to file a condemnation action. And mandamus is “extraordinary relief,” only appropriate when the plaintiff has a clear legal right to compel the government to initiate condemnation. Another reason that water-rights cases have been relatively rare is that pinning down water rights gets tricky, fast. The right is not to any particular amount of water, let alone to the molecules themselves—it’s just a right to use the water. Defining the property right is a necessary step to take before figuring out if that property has been interfered with or taken. Because

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that definition can decide the case early on, it’s easy to see why this is a contentious issue in any propertyrights claim. And the doctrine of reasonable use does not secure an open-ended reasonable amount of groundwater for a property owner. An Ohio property owner only has a property right in the groundwater the owner has already used. Even if a property owner can prove that a neighbor or a government has interfered with the water, the owner still has to prove damages. A case involving groundwater interference needs some way to quantify the water use and measure the value of that water use. West of the Mississippi, water exchange markets allow sophisticated econometric analysis of water prices per acre-foot. In Ohio, where there are fewer water sales, things might get more challenging. The kind of valuation needed will also change depending on who’s being sued and why — a court might consider diminution in value for a property-damage case, but the measure of just compensation under the Fifth Amendment is fair market value of the property taken.

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One last reason why these cases have been few on the ground: Unlike in takings cases from federal reclamation projects out west, Ohio’s water system doesn’t involve extensive water delivery contracts, nor a complex prior-appropriation scheme that sets the water right as part of perfecting that water right. The scope of the right is less certain going into a lawsuit, and there’s a good risk the lawyers will have to make good law. Despite these challenges, a prudent government or property owner should consider the implications of Ohio’s water-rights system for their own property use.

42 | Columbus Bar L aw yers Quarterly Spring 2018

Ian F. Gaunt, Esq.

ifg@georgetown.edu

Spring ‘18: Environmental Law

National Parks

as Resources for People: A History by JANYCE C. KATZ Just before the official anniversary celebration of 100 years of the National Parks Service (NPS), my husband and I returned to Yosemite National Park, one of our favorite destinations.

us in Yosemite, one of the first national parks, were surrounded by mountains, giant sequoias, waterfalls dripping slowly with mid-summer languor and open sky, a place in which colors and the shadows produced on all there changed as the sun, wind and clouds altered the light on them.

The NPS was created when then-President Woodrow Wilson signed the “Organic Act,” which established the new federal bureau in the Department of the Interior and consolidated national parks under its controli. At its start in 1916, the NPS was responsible for protecting the 35 national parks and monuments managed by the department, as well as parks yet to be established.

The Organic Act’s language as well as the idea for national parks comports with the philosophy that

As of 2017, the NPS has approximately 27,000 employees overseeing 417 park system units, of which 59 were designated national parks. My husband and I, along with thousands of others, compromised the “future generations” visiting the parks, imagined using them when the Organic Act became law. All of

encouraged the mid-19th Century movement to preserve land in its wildest and most beautiful form. As the 19th Century progressed, many feared that the great wildernesses of the U.S. that inspired our independence and perhaps also our creativity were being settled and utilized to the point that soon there would be nothing left for future generations to see. The freedom and peace provided by the wilderness would be subsumed by

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43 | Columbus Bar L aw yers Quarterly Spring 2018

Untouched wilderness… was a fantasy that one could always head toward to find the freedom and innocence that had been lost in the developed areas. congested U.S. cities and industrial factories spewing smoke and smoot into the air. The idea of nature as spiritual refuge and antidote to urban life emerged due, in part, to the writings of Ralph Waldo Emerson, Henry David Thoreau, Sierra Club founder John Muir and others. The U.S. as a place with uniquely beautiful wilderness available to all was also contrasted positively against the aristocratic land use and buildings of Western Europe; it became a major part of the U.S.’s “brand”.

The untouched wilderness as beneficial for the soul, especially in the Western part of the U.S., soon began to appear in literature. It was a fantasy that, as Thoreau stated and Mark Twain’s hero Huck Finn rephrased, one could always head toward to find the freedom and innocence that had been lost in the developed areas. This dream of untouched land was enhanced by artists such as Thomas Cole, Albert Bierstadt and the Hudson River School, whose paintings captured the light enhancing wilderness areas

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like the Yosemite Valley, as well as the Hudson River area in New York. Through their art and often also through their voices, artists advocated to protect the wild areas. Their art created appreciation for this country’s spectacular wilderness areas. One painter and explorer, George Catlin, proposed that Western prairies be preserved as “a nation’s Park” in 1832, the same year that Congress set aside the medicinal springs of Hot Springs, Arkansas, as a public reservation.ii Catlin even envisioned the Indian inhabitants of the land as a part of what should

be preserved. However, those who thought they needed to be removed from the land to keep it pristine and possibly “civilized” prevailed. Yosemite started as a “gift” to the State of California, when then-President Abraham Lincoln signed the Yosemite Grant Actiii on June 30, 1864. The Act established the Yosemite Valley and the Mariposa Grove, the giant sequoia habitat, as protected wilderness areas and a land “reservation”iv. The land was granted to the State with the provision that it was to be used for “public use, resort and recreation”. Shortly after, the Governor of California, F. F. Low, issued a proclamation taking possession of the Yosemite Valley and Mariposa grove of Big Trees in the name and on behalf of the State. He appointed commissioners to manage them, one of whom was Fredrick Law Olmstead, famous for co-designing many well-known urban parks, including Central Park in New York City and Golden Gate Park in San Francisco. In 1865, Frederick Law Olmsted wrote a report titled “Preliminary Report on the Yosemite Valley and Mariposa Big Tree Grove Reservation”, in which he advocated for limited to no commercial use of the Yosemite Valley and the lands around it. He argued that the beauty of the scenery would enhance the soul of the viewerv. In voicing a need to preserve the beauty of the area, he echoed the earlier words of naturalist John Muir, who had advocated for the preservation of Yosemite because of its wild beauty, and whose advocacy later helped create several other national parks. In 1865, Olmsted moved back east, where, among many other creative actions, he became involved in the creation the country’s first and oldest coordinated system of public parks and parkways in Buffalo, New York as well as the Niagara Reservation in Niagara Falls, New York.vi The beauty of Niagara Falls had been marred by commercial development and nearby factories, but Olmsted managed to preserve and protect some of the area’s beauty and wildness. The destruction caused by the rampant economic development that had occurred around the Falls encouraged the preservation of other areas, especially in the West, to prevent them from the same destruction.

On March 1, 1872, President Ulysses S. Grant approved the establishment of Yellowstone National Park “as a public park or pleasuring-ground for the benefit and enjoyment of the people” and free “from injury or spoliation”vii. Yellowstone, with 1,221,773 acres set aside for preservation, was the first “national” park. Its location, partially in Montana, partially in Idaho and partially in Wyoming, meant that establishing it as state parks would have been difficult, if not impossibleviii. Following the Yellowstone precedent, Congress established national parks in the 1890s and early 1900s, including Mount Rainier (1899), Glacier (1910) and Yosemite, which was returned to the United States by California in 1890ix. President Theodore Roosevelt was one of the park system’s greatest patrons. During his administration, five new parks were created, as well as 18 national monuments, four national game refuges, 51 bird sanctuaries and over 100 million acres of national forestx. Roosevelt and the U.S. Congress made it even easier for future presidents to protect natural resources when they moved to preserve prehistoric Indian ruins and artifacts on public lands by passing the Antiquities Act of 1906xi. Many presidents who

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background lurked the possibility of using the land and its resources for the economic benefit of those who could take advantage of it. Olmsted’s son, Frederick Law Olmsted, Jr., wrote part of the Organic Act. He, like others involved in conservation, wanted to preserve the beauty of the area, but also make it available for recreation, thereby creating a conflicting duality of purpose. Section Three of the Organic Act permits the Secretary to “provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of any ... parks, monuments, or reservations.”xiv

followed Roosevelt added property and strengthened the national park systemxii. During our first day in the park in July 2016, the temperature soared to just above 100 degrees. Surely, we thought, the bears and other animals were searching for cooler places to hide from the intense heat and the hordes of visitors swarming into the park during the day and also sweltering in the heat. This temperature created a dilemma, as we were staying not in the historically important and wellair-conditioned Ahwahnee, (now called the Majestic Yosemite Hotel) that had a few rooms available for $650 a night, but in Yosemite Valley Lodge. This beautiful, also historic lodge/hotel had no airconditioning and windows that could not be opened as of 2016. But, it was in the park, near Yosemite Falls, had a large swimming pool surrounded by mountains and was more affordable. However, if we opened the door to let cooler air from the nearby lake into the room, we then had a good possibility of a bear visitor interested in the snacks we brought into the room. With the door closed, the heat overwhelmed us. The existence of our and other hotels, concession stands, etc. exemplified the dilemma found in the Organic Act as well as in the thinking of the early proponents of the park idea—the juggling of a dual need to preserve and to make the parks available for use by people for recreationxiii. Always in the

Still later amendments to the Organic Act, for example, in The General Authorities Act of 1970 and the Redwood National Park Expansion Act of 1982, Congress reiterated its intention that: “the promotion and regulation of the various areas of the National Park System ... shall be consistent with and founded in the purpose established by [the Organic Act], to the common benefit of all the people of the United States.”xv These amendments and other amendments during that time period gave the NPS stronger power to protect the parks and to better organize them into a cohesive park system. They emphasized the recreation needs of those wanting to use the park system. The preservation of the ecology and its living residents became more important, and legislation to protect both sailed through the legislatures. At the same time, those interested in using the land for other purposes, such as the grazing of cattle, the mining of its mineral wealth, etc. gained support of politicians and used legal as well as public relations means to fight those who wanted to protect the wilderness. “Tree-hugger” became a common deriding term for some who wanted to protect Sequoias and Redwoods from harvesting for use as patio flooring etc. Many of our parks or national monuments, like the Everglades in Florida or the Grand Tetons in Wyoming, are near or are over mineral deposits. In some instances, private companies own the underground mineral rights while the above-ground areas are

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On March 1, 1872, President Ulysses S. Grant approved the establishment of Yellowstone National Park “as a public park or pleasuring-ground for the benefit and enjoyment of the people” and free “from injury or spoliation”. Yellowstone, with 1,221,773 acres set aside for preservation was the first “national” park. parks. On March 28, 2017, President Trump issued an executive order requiring federal agencies to review or rescind a number of critical policies that protect our national parks from the adverse impacts of oil and gas development, including the National Park Service 9B rules. The flooding of the Hetch Hetchy valley in the northwestern part of Yosemite in the early 20th Century to better provide water and hydroelectric power for San Francisco’s growing populationxvi illustrates the dilemma of preservation vs. use to benefit the public. It is also an excellent example of the use of parkland for profit by corporations providing services that benefit the public at a cost to them and to the environment. Now, all of us face another question, this one even more important to all people – will we have national parks in the future and, if we do, what will they be like and who will be able to use them? Granted, as our un-air-conditioned rooms along with the huge crowds showed, one goal could have been to better finance the NPS and the parks so that

they could better serve the people coming and better control the numbers and crowds while protecting the ecosystem and the remaining wilderness areas. Certainly, there should be a place for the rational use of resources for public purposes, but only if the true value of the use of any property as well as the extraction and or sale of any mineral would be paid to the government and shared with the general public. The resources of this great nation should not be used as presents for supporters or sold cheaply to those who would exploit them for personal gain. But, the better funding of national parks option to ensure the ability to use it remains and the parks’ ecosystems and animal life are protected aren’t proposals on the table right now. What is there consists of several parts including shrinking the size or eliminating some of the national monuments and parks, increasing the private industry use of the land to mine minerals or gases or run cattle, and increasing the cost of entering what is left of the parks and monuments to something that would limit their use to more affluent individuals and their families.

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In December 2014, Congress created a new title within the United States Code, Title 54, for National Park Service-related laws. H.R. 1068 made technical and conforming changes to establish title 54 of the United States Code as the sole title related to the National Park Systemxvii. On one hand, this consolidation makes it easier to find the laws and rules governing the parks. On the other hand, it is also easier to make radical changes to the entire system. Certainly, assuring a supply of water, oil, gas and coal is important. This may mean the use of parks to provide these resources, especially if there is no possible affordable way to safely utilize the power of the sun and the wind to produce the energy needed by US residents or to preserve and deliver drinkable water to cities. But, isn’t there also a need to keep some open space, wildlife and clean water and air available for our grandchildren and their grandchildren to experience even if they do not have at least a few million dollars on which to live? Those who founded the park system probably would have said yes.

Robert B. Keiter, To Conserve Unimpaired: The Evolution of the National Park Idea (Island, 2017). ii http://memory.loc.gov/cgi-bin/query/r?ammem/consrvbib:@field(NUMBER+ @band(amrvl+vl002)) iii 13 STAT., 325. iv federal reservations within a state may be classified according to their purposes and the nature of the governmental authority exercised within them. As to their purpose, such reservations may be (1) military, (2) federal buildings, (3) national parks and national monuments, (4) national forests and United States public lands generally, or (5) Indian reservations Law Applicable to National Parks and Other Federal Reservations within a State, Vol 22, Issue 2, 152 (1934). https://scholarship. law.berkeley.edu/cgi/viewcontent.cgi?referer=https://www.google.com/ &httpsredir=1&article=3814&context=californialawreview. v Francis R. Kowesky, “In Defense of Niagara: Frederick Law Olmsted and the Niagara Reservation”, http://www.buffaloah.com/h/kowsky/nf/. vi Kowesky endnote iii. vii An Act to set aside a certain Tract of Land lying near the Head-waters as a National Park” Forty-Second Congress, 1872, Chapter XXIV, A Century of Lawmaking for a New Nation: Library of Congress Documents, Google Chrome. viii https://www.whitehousehistory.org/the-presidents-and-the-national-parks, The White House Historical Trips, https://www.whitehousehistory.org/the-presidentsand-the-national-parks; ix See 16 USC § 48 (2006). x “US National Parks, In the Beginning”, National Geographic https://www. nationalgeographic.com/travel/national-parks/early-history/ xi 16 USC 431-433. xii www.whitehousehistory.org/the-presidents-and-the-national-parks xiii Denise E. Antolini, National Park Law in the U.S.: Conservation, Conflict, and Centennial Values, 33 Wm. & Mary Envtl. L. & Pol’y Rev. 851 (2009), http://scholarship.law.wm.edu/ wmelpr/vol33/iss3/5 xiv 16 U.S.C. § 3. xv 16 U.S.C. §1a-1 and 1c (1982). The NPS’s planning obligations were strengthened in the 1978 National Parks and Recreation Act. 16 U.S.C. §§ la-1 to la-8, renamed in 2004 as the National Park System General Authorities Act (see 16 U.S.C. § 1 note). See also National Rifle Association v. Potter, 628 F. Supp. 903,905-06 (D.C. 1986) (reciting history of park units and congressional reaction). xvi Congress had to authorize the project because Hecht Hechy Valley was part of the Yosemite National Park, The U.S. Congress passed and President Woodrow Wilson signed the Raker Act in 1913, which permitted the flooding of the valley under the conditions that power and water derived from the river could only be utilized for public interests. Of course, the definition of “public interest” expanded as corporations used the water and the supply of water as a means to become more profitable. https://www.myyosemitepark.com/park/hetch-hetchy-vs-california-water. xvii http://uscode.house.gov/codification/t54/rept.pdf (can track each provision of Title 16 transferred to Title 54)

Janyce C. Katz, Esq.

General Innovations and Goods, Inc. janyce.c.katz@gmail.com 48 | Columbus Bar L aw yers Quarterly Spring 2018

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Spring ‘18: Environmental Law

Oil and Gas: A Tricky Lease by Gerrod Bede Does a lease terminate if the lessee refuses to explore the deep rights? The answer appears to be “not yet,” though it may change as technology continues to develop. The Ohio Supreme Court recently held in Alford v. Collins-McGregor Operating Company that Ohio does not recognize an implied covenant to explore an oil and gas lease “further,” separate and apart from the implied covenant of reasonable development that already exists.1 This means that in determining whether an oil and gas lease has lapsed for lack of development, the lessee will be held to the “reasonably prudent” standard unless the lease specifically provides otherwise.

The Dispute In Alford, the plaintiffs were lessors to 74 acres of land in Washington County, Ohio.2 The initial oil and gas lease was signed in 1980 for the explicit purpose of “mining and operating for oil and gas and laying pipe lines, and building tanks, powers, stations, and structures

thereon, to produce, save and take care of said products.”3 In exchange for permission to mine the land, the lessee agreed to make royalty payments based on the amount of gas produced from the property. In 1981, a well was drilled on the property in a shallow formation called the Gordon Sand. No other wells were drilled at any time, and the initial well continued to produce gas in paying quantities throughout the years.4 The landowners argued that the lessee had an implied covenant to “further” develop the land — in particular, that it was required to explore the deep rights in the property, just as other nearby lessees were allegedly doing.5 The landowners therefore sought to terminate the lease in part by virtue

of a horizontal forfeiture, under which the deep rights would revert back to the landowners while the lessee would maintain the shallow rights.6

The Court’s Reasoning The Court rejected the landowners’ argument, holding that there is no need to recognize a separate covenant to explore “further” because the landowners’ interest in developing the land is “sufficiently protected” by the existing covenant of reasonable development.7 The Court reasoned that the purpose of the implied covenant to reasonably develop is to protect the lessor’s interest in the lease — much like the purported purpose of the implied covenant to develop further. The Court found no need to separately recognize the implied

Perhaps the biggest question after Alford is whether Ohio will require lessees to develop the deep rights on their leases as part of the implied covenant of reasonable development.

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covenant to explore further, because it would focus only on one “small subset of factors relevant to the overall profitability of development to the lessor and the lessee.”8 The Court also noted that courts in Texas and Oklahoma — two states with a long history of oil and gas decisions — have declined to recognize an independent implied covenant to explore further.9

What Should Parties to Oil and Gas Leases Do in Response to Alford? One key takeaway from Alford, which is a takeaway from many other oil and gas cases as well, is that the dispute is fundamentally a contractual interpretation issue. Indeed, the Court specifically pointed out that the parties to a lease “can prevent application of the implied covenant of reasonable development by including in the lease express provisions to the contrary.”10 One way to do this is to completely disclaim the covenant. However, if the parties cannot agree on a general disclaimer, the next option could be a clause setting forth specific requirements regarding the number of wells, the depth of wells or specific actions the lessee must take to determine whether drilling additional wells would be feasible. The parties might even agree to a Pugh clause, under which certain acreage (or mineral rights of a certain depth) would be released from the lease if not properly developed. The possibilities are nearly endless for parties negotiating a lease. But in the end, if the parties cannot agree on specific steps that the lessee must take to hold the lease, the lease will still contain the implied covenant of reasonable development absent a disclaimer.

drilling technologies permitting production from deep strata that could not be obtained before.”11 In short, would today’s “reasonably prudent” developer explore the deep rights on this particular lease? The answer to that question depends on the particular facts and circumstances of each case, and anyone facing this question should seek out appropriate counsel. Finally, the Court did not address the landowners’ argument that horizontal forfeiture is a potential remedy for a party’s failure to develop the deep rights in a lease. One of the main problems with allowing a horizontal forfeiture, however, is that it will likely only lead to more litigation over the specific part of the leasehold forfeited. Would all rights to all wells be forfeited? All rights to a certain depth? All rights beyond a certain depth, even if current technology does not support exploration past that depth? What if the amount of leased acreage is insufficient for deep rights exploration anyway? Moreover, recognizing horizontal forfeiture would be a virtually unprecedented remedy. As the amicus brief of the American Petroleum Institute pointed out, the few states that allow horizontal forfeiture unanimously require the lessor to give notice and allow the lessee the opportunity to cure before forfeiture can be applied. Whether the Court will take this issue up in a future case, and whether Ohio will follow the general rule from other states, remains to be seen. 1

Alford v. Collins-McGregor Operating Company, __ N.E. 3d __, 2018-Ohio-8, ¶ 2. Id. at ¶ 3. 3 Id. 4 Id. at ¶ 5. 5 Id. 6 Id. at ¶¶ 6 - 8. 7 Id. at ¶ 17. 8 Id. at ¶ 23. 9 Id. at ¶ 16. 10 Id. at ¶ 13. 11 Id. at ¶ 24. 2

What’s Next After Alford? Perhaps the biggest question after Alford is whether Ohio will require lessees to develop the deep rights on their leases as part of the implied covenant of reasonable development. The Court specifically declined to address this issue in Alford, but it did note that the implied covenant of reasonable development is “well suited” to address the “emergence of new

Gerrod Bede, Esq.

James E. Arnold & Associates, LPA gbede@arnlaw.com

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Spring ‘18: Environmental Law

The Future of Fracking in Ohio by FRANK J. Reed, Jr. Hydraulic Fracturing, commonly known as fracking, is the process of drilling a well and then forcing high pressure fluid, consisting of water, sand and various chemicals, into the ground causing fractures in the underground layer of rock in order to extract crude oil and natural gas. Fracking was first discovered and used in 1947, but it wasn’t until 1998 that the modern fracturing technique, known as “horizontal fracking” was first developed. Here in Ohio, “horizontal fracking” first gained popularity in 2011 after the recession of 2008, and the price for gasoline reached an all-time high. Environmental concerns include potential contamination to the groundwater, potential risks to air quality and, more recently, earthquakes. There have been several small-scale earthquakes in the vicinity of fracking operations. The first such quake occurred in December 2011 in Youngstown, Ohio and most recently on April 2, 2017, near Marietta, Ohio. Shortly after the first incident, the Ohio Department of Natural Resources and Ohio Environmental Protection Agency adopted regulations restricting fracking or the disposal of used fracking fluid into

underground well injection within a certain distance of known fault lines. And although the creation of new frack wells has decreased in the last five years since the price of gasoline returned to more normal levels, the oil and gas industry continues to discover new opportunities for exploration. For example, in December 2016, the United States Bureau of Land Management held an online auction that allowed private companies to submit bids in order to lease federal lands for the extraction of oil and gas. The federal government made available more than 1,600 acres of land located within the Wayne National Forest in southeast Ohio for lease. Minimum bids were $2 per acre for a 10-year lease, plus a promise to pay the federal government 12 percent royalties on the value of any oil or gas removed.

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In 2011, the Ohio General Assembly passed H.B. 133, which authorized the lease of lands owned or controlled by the State Ohio to private companies for the purposes of the extraction of oil and gas. The Oil and Gas Leasing Commission was created pursuant to R.C. 1509.71 in order to develop standards for this activity and promulgate Ohio Administrative Codes. However, because the Ohio General Assembly refused the Governor’s request to raise the oil and gas severance tax to 4.5 percent, the Governor refused to appoint any members to the Oil and Gas Leasing Commission, effectively putting on hold any oil and gas extraction activities on state-owned land. Last Spring, in the state’s most recent biennium budget, the General Assembly sought to change Ohio law so that the General Assembly would have the power to appoint

members to the Ohio and Gas Leas Commission. That provision was vetoed by the Governor. In a rare move, the Ohio House of Representative voted to override the veto. But, before the matter was taken up by the Ohio Senate, the Governor promised to make appointments, thus avoiding a change in state law. In October 2017, the Governor appointed Michael W. Wise, a McDonald Hopkins energy lawyer from Cleveland to the Commission. And in December 2017, the Governor appointed three more members: Matthew W. Warnock, an oil and gas lawyer at Bricker & Eckler; Richard L. Shank, Ph.D., former Director of Ohio EPA; and former State Director of the Nature Conservancy, former Director of the Ohio Bureau of Workers’ Compensation and Carpenter Lipps & Leland lawyer Stephen R. Buehrer. It is also reported that between the Ohio Department of Transportation and the Ohio Department of Natural Resources, the state owns or controls more than 41,697 acres of land, that could be leased, which might generate up to $160 Million in additional revenue for the State of Ohio. As to the future of fracking, it is difficult to predict. We know that Republican Governor John Kasich is term

limited and will leave office at the end of 2018. At the beginning of 2019, Ohio will have a new Governor who will certainly have their own views on fracking. Republican Candidate for Governor, Mike DeWine, has said he supports fracking and added, “But we have to do it right. We have to really take a deep breath, do it right, make sure the public is protected, make sure our land is protected.” Republican Lt. Gov. Mary Taylor has said Ohio’s economy would be struggling if fracking were not allowed and said, “The future of our economy is tied to energy. We need to support all viable energy options and I would caution anyone who would seek to take coal and natural gas off the table.” Democratic Candidate for Governor Richard Cordray has said that strict enforcement is the key and reminds voters that when he was the Ohio Attorney General, “I prosecuted polluters who did not engage in responsible practices.”

Frank J. Reed, Jr., Esq.

Frost Brown Todd LLC freed@fbtlaw.com

Although the creation of new frack wells has decreased in the last five years since the price of gasoline returned to more normal levels, the oil and gas industry continues to discover new opportunities for exploration.

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Life Outside the Law

Most Lawyers Are Happy: Here’s Why BY SCOTT R. Mote You have probably heard it more than once: Most lawyers are unhappy with their careers, which can lead to substance abuse, depression and other mental health disorders. According to Bernard Burk’s 2013 article, “many in the legal profession and the legal academy have begun to accustom themselves to a dark and depressing ‘New Normal,’” in which they are unhappy, saddled with debt and are paid less in a shrinking market.1 Don’t let this scare you, though. Recent research proves otherwise. In a July 2017 survey of more than 11,000 lawyer members of the State Bar of Texas, only 13.5 percent of all attorneys and 11.5 percent of full-time attorneys said they are dissatisfied with their careers.2 Let’s turn that around in a positive way: 88.5 percent of full-time attorneys are happy.

Instead of focusing on why lawyers are unhappy, let’s celebrate the reasons lawyers find joy in their careers. Here are five reasons why most lawyers live happy and fulfilling lives.3

Lawyers change people’s lives for the better When asked why you became a lawyer, you probably respond with “I wanted to help people.” Clients come to you for help, sometimes at their darkest and most stressful hour. They depend on you to help them resolve their issues. They trust you. You counsel businesses and help them prosper, you help clients understand the fine print of contracts. You write wills, trusts and DNR orders. You help victims of crimes get the justice they deserve. You keep people safe. You help a single mom sleep at night because you assisted her to get a

restraining order against her abusive partner. Where would she be without your assistance?

Lawyers solve problems You use your legal training to help your clients solve problems. A young entrepreneur looks to you to determine what makes the best legal sense for his business. With your problem-solving skills, you help the businessman determine that the best thing for him is to create a limited liability company, and you help him register for his business license. A new father is confused about his rights because he is not married to the mother. You help him determine the best way to see his child. The scenarios are endless, but you get the picture. Solving other people’s problems is second-nature to you.

When asked why you became a lawyer, you probably respond with “I wanted to help people.”

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Lawyers have more than legal skills You are multi-talented. Not only do you practice law, but you are also a writer, a counselor and a speaker. You write briefs and articles about the law that help clients and other lawyers. You speak at events and in the courtroom. You have the empathy that is necessary to counsel crime victims. You have compassion and can put yourself in others’ shoes. These are some of the rare traits that lawyers possess.

Lawyers have influence Being a lawyer is an honor, and many companies and non-profits want you to sit on their boards because of your prestige and legal knowledge. They see the value in your good reputation and your personal community network and know that you will help them achieve their strategic goals. You help shape new laws because of your influence at the statehouse. You provide legal guidance and help draft bills and resolutions, making a difference statewide.

Lawyers are always in demand Society will always need your expertise and counsel. Businesses form daily, families have issues that need to be resolved, criminals need to be defended and proven guilty, some children need loving homes, civil rights need to be protected and so on. There is no other profession that has the potential to make such an impact in a person’s life.

As a lawyer, you get paid to analyze the law, solve problems, research, communicate, write and, most importantly, help people. Of course, you will have bad days, as all people do. Just remember these five facts, which will remind you of why you became a member of this noble profession.

Scott R. Mote, Esq.

Ohio Lawyers Assistance Program smote@ohiolap.org

If you are unhappy, depressed, suffering from substance abuse, burnout or stress, and you believe it is affecting your life, the Ohio Lawyers Assistance Program can provide CONFIDENTIAL help. For more information, go to ohiolap.org or call (800) 3484343 or (614) 586-0621. 1

Burk, Bernard A., What’s New About the New Normal: The Evolving Market for New Lawyers in the 21st Century (August 13, 2013). UNC Legal Studies Research Paper No. 2309497; 41 Florida St. L. Rev 541 (2014). Available at SSRN: https://ssrn.com/abstract=2309497 or http://dx.doi.org/10.2139/ssrn.2309497. 2 Markovic, Milan and Plickert, Gabriele, Attorneys’ Career Dissatisfaction in the New Normal (July 12, 2017). Texas A&M University School of Law Legal Studies Research Paper No. 17-47; AccessLex Institute Research Paper No. 17-05. Available at SSRN: https://ssrn. com/abstract=3001391. 3 If you are a lawyer who falls into the “unhappy” category, recite these five affirmations daily. This will help you remember why you wanted to be a lawyer.

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Life Outside the Law

From Law Office to Barnyard:

One Exciting Career Change BY HON. David E. Cain Doug Morgan enjoyed the practice of law enough to stick with it fulltime about 30 years. But now he wakes up early, way before dawn, eager to start the day. With his law practice dialed back to about five hours a week, he is free to pursue a greater passion, sometimes 80 hours a week.

That is the “repurposing” of Ohio’s vanishing supply of old barns – a pursuit that grew out of his lifelong love of woodworking and the outdoors.

Morgan, now 61, founded the Mount Vernon Barn Co. in 2011 with his wife, Beth, after retiring as managing partner in the Columbus office of Calfee Halter & Griswold.

Some barns are restored or rebuilt. Or, the wood is salvaged and used for homes or cabins, room additions, party barns or carriage houses, or simply put in storage in one of Morgan’s Knox County woodsheds or warehouses for future projects or for sale.

Since then, he has repurposed 40 to 50 barns. Most are finished; some are still in progress. His most visible projects include the hugely popular Wells Barn in the Franklin Park Conservatory & Botanical Gardens and a reconstructed 2100-squarefoot barn used for classrooms at the Ohio Wildlife Center in Shawnee Hills. Morgan’s ultimate goal is to salvage 100 old Ohio barns: awesome 19th century structures that are now too small for modern equipment and no longer needed for the storage of hay or the threshing of small grains. He is also getting a chance at show business, having starred in the recent highly successful production entitled “Barn Sweet Home” on the cable channel DIY (Do It Yourself). The Wells Barn opened in 2015 at 1777 E. Broad St., 200 years after it was originally built as a

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4000-square-foot structure in Richland County. With the sides extended and a lower level added, it is now a 12,000-square-foot facility used for everything from educational programs to weddings. For the Wildlife Center, Morgan reconstructed an 1891 barn he found in Marion County. The Mount Vernon Barn Co. is now a regular participant in the annual Home & Garden Show at the Ohio Expo Center. One year he actually reconstructed an 1840 barn from Stoutsville for the show. Morgan’s interest in woodworking was stoked by classes at Dominion Junior High School. An interest in vocal music was nurtured by voice lessons at Capital University while he was a student at Whetstone High School, where he received a diploma in 1974. That training began paying off after he became a student at Harvard in its work-study program. His regular job was cleaning bathrooms in dormitories, but

he also got paid to be a member of the choir at the Harvard Memorial Church, the ecumenical “official” Harvard church. That was a 60-voice choir. He also joined the 20-member sub-choir that got paid extra to sing at daily chapel services and other events. That enabled him to quit the “dorm crew” job that involved cleaning toilets and such other pleasantries. “I sang my way out of it,” Morgan declared. Morgan graduated from Harvard with a major in American History in 1978 and took a job as an investigator in the Office of the Columbus City Attorney. A year later, he entered the Ohio State University College of Law. He stayed on the city attorney’s staff for a couple of years and was admitted to practice in 1982. Soon thereafter, he and his wife, Beth, moved to New York City where he spent five years in mergers and acquisitions at the firm of Simpson Thacher & Bartlett. After they moved back to their Clintonville neighborhood, the couple began looking for a rural

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Morgan’s ultimate goal is to salvage 100 old Ohio barns: awesome 19th century structures that are now too small for modern equipment and no longer needed for the storage of hay or the threshing of small grains.

retreat and found 78 acres south of Mount Vernon where they eventually rebuilt an 1820s cabin. Morgan stores timber beams and salvaged boards in a large warehouse at that location and at two woodsheds and a pole barn in Fredericktown where the company’s two fulltime employees are headquartered. Morgan also hires Amish craftsmen on a project-to-project basis. The barn company is a family project: Beth is the Owner and Doug is the President. A website (www. mtvernonbarn.com) was constructed by sons, Brandon and Corey. Beth does the paperwork and project management. She also oversees their related company, the Mount Vernon Millworks Co., that makes cabinets out of new and reclaimed wood, the largest involved $90,000 worth of cabinets in one house, and does other custom orders. Morgan frequently finds timber beams that are 60 feet long that came from virgin hardwood such as

white oak, chestnut and beech and just aren’t being produced anymore. His favorites are those that show the ax marks of hand-hewing that was done before sawmills began popping up after the Civil War. He considers them to be “sculptures” and finds ways to feature them in his projects. Morgan’s law practice now consists mostly of representing a local automobile dealership. And he still finds time for singing. He is a tenor soloist in the Chancel Choir at Maple Grove United Methodist Church. Beth is a soprano soloist there. For years, he sang with the Klatt Brothers at different venues around Central Ohio. Now he performs with friends at places like the Refectory Restaurant. For “Barn Sweet Home”, Morgan got the green light from Dorsey Pictures, a Denver production company, last summer on the condition that it be done by Thanksgiving. At first, Morgan thought the schedule would be impossible to meet. Then, he decided he

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could scale back his original plans and build a smaller house on a piece of land he owns in Apple Valley, northeast of Mount Vernon. And he could use the timber from a small 19th century barn he was about to disassemble in Ottawa County. He worked 14-hour days for the next three and a half months and finished the 2,300-square-foot home shortly before the deadline. They shot about 120 hours of video and edited it down to one hour for the show that aired about two months later. The ratings tied with “Maine Cabins” for the best pilot ever on DIY. And it “blew up” on social media. Dorsey personnel are thinking about making it a series. Morgan just wants to continue working with wood.

Hon. David E. Cain

Franklin County Court of Common Pleas David_Cain@fccourts.org

Life Outside the Law

Lawyers with Artistic License:

Maritza S. Nelson BY HEATHER G. SOWALD Maritza Nelson first picked up an electric guitar in 2014, when she purchased one for herself and her spouse, just for fun. Within a year, she was jamming away as part of a rock band and performing during Sunday church services. Other than the mandatory middleschool flute playing, Maritza has no musical background. Given three choices by her physician father to have a J.D., an M.D. or M.B.A., Maritza’s path became clear in her Shreveport high school both as a rule-follower in ROTC

and as a fierce competitor in regional, state and national mock trial competitions. She and her wife, Siobhan BoydNelson, also an attorney, met at college the night Maritza tried out for Howard University’s mock trial team. They married in 2010 in D.C., with their son, Marsellis, and friends and family in attendance. Atthattime,Maritzawasanassociate in the litigation department of the Pillsbury, Winthrop, Shaw, Pittman firm in D.C., her first job after law school (University of Texas (2007)). Maritza later moved to Cleveland to practice with Baker & Hostetler until she took the leap in 2014 to open a solo practice in Gahanna.

In 2017, Maritza was named an Ohio Rising Star, co-chaired the CBA’s Minorities in the Law Committee and remains a board member of the John Mercer Langston Bar Association, among other community commitments. 60 | Columbus Bar L aw yers Quarterly Spring 2018

Since then, she has been handling both transactional and litigation matters for business owners and non-profits. In 2017, Maritza was named an Ohio Rising Star, co-chaired the CBA’s Minorities in the Law Committee and remains a board member of the John Mercer Langston Bar Association, among other community commitments. The year she moved to Columbus and became self-employed was the same year she brought home two electric guitars and, with the help of the internet, began teaching herself how to play. She surprised herself with this new passion for learning and playing, while her wife discovered that she just prefers to sing instead. Maritza is completely self-taught through the internet where lessons, sheet music and backing tracks are free and plentiful. Maritza threw herself into the world of music, learning as much as she could, as fast as she could, and she has the calluses on her string-strumming fingers to prove it.

A bass player friend pushed Maritza to learn how to improvise, and to join her in forming the Groovy Blue band. The band practiced frequently and played at various events and sites. Maritza says that, ultimately, she left the band because of differences in musical tastes and styles. Her own preferences tend toward Gary Clark, Jr., The Black Keys, Alabama Shakes and Jimi Hendrix, among others. In contrast, the pastor and lead singer at Move United Church picks out which contemporary Christian pieces will be played during their Sunday morning services. Maritza appreciates having someone else make those decisions, and new pieces are added to their repertoire every month. Maritza now looks forward to relaxing each night after work, practicing her guitar and perhaps enjoying a glass of bourbon. Her goal, she says, is to ultimately have a repertoire of songs under her belt, so if a band comes along and wants her to join them, sheâ&#x20AC;&#x2122;s ready to play!

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com

Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER Verdict: $70,250.00. Automobile Accident. On November 28, 2013, Plaintiffs Lucretia Mershon and her husband Robert Mershon were stopped at a traffic light on westbound Glick Road when their vehicle was rear-ended by a vehicle driven by Christopher J. Bahr. The next day, Mr. Mershon went to his primary care physician and was diagnosed with a head contusion and a cervical and lumbar strain. He continued to follow up with his primary care physician for low back pain for the next 8 months. He also began seeing a chiropractor approximately 5 months after the accident. There was a break in his treatment for 2015 and then Mr. Mershon resumed treatment with the chiropractor in mid2016. Mr. Mershon’s physicians concluded that he suffered an L4-L5 radiculopathy as a result of the accident. However, due to a pre-existing heart condition, he was not a candidate for surgery or injections to treat his back injury. Mrs. Mershon suffered soft tissue injuries in the accident and followed up with her primary care physician for three visits. Mr. Bahr died in September 2014 of

unrelated causes. He was insured by American Family Insurance. The parties agreed to cap the Plaintiffs’ compensatory damages at the insurance policy limit of $100,000 per claimant and that Plaintiffs would not pursue any excess against Mr. Bahr’s estate. American Family sent Mr. Mershon for an IME. The IME physician confirmed that Mr. Mershon had an L4-L5 radiculopathy as a result of the accident and that the injury was permanent. However, the parties disagreed about the severity of the symptoms and value of the claim. The jury awarded Robert Mershon $5,000 in economic damages, $15,000 in past non-economic damages and $35,000 in future economic damages for a total damages award of $55,000.00. The jury awarded Lucretia Mershon $250 in economic damages and $15,000.00 in non-economic damages for a total of $15,250.00. Medical Specials: $3,260 for treatment of Mr. Mershon; $216 for treatment of Mrs. Mershon. Last Settlement Demand: $84,500.00. Last Settlement Offer: $23,000.00. Plaintiff’s Expert: Charles Horsley, M.D. (family practice). Defendant’s Expert: Thomas Bender, M.D. (orthopedist). Plaintiffs’ Counsel:

62 | Columbus Bar L aw yers Quarterly Spring 2018

David Rudwall and Mark Bogen. Defendant’s Counsel: Matthew J. Timperman. Magistrate Elizabeth Watters. Case Caption: Robert M. Mershon, et al. v. American Family Insurance, et al. Case No. 15CV010614 (2017).

Defense Verdict. Construction. In the Fall of 2001, Plaintiff ESEMTRE Corporation agreed to purchase a condominium unit at One Miranova Place in downtown Columbus. Plaintiff Geoffrey Webster was the owner of ESEMTRE and planned on moving into the unit with his family. Mr. Webster and his family lived in the unit until January 2009 when their unit sustained water damage from a burst sprinkler line located in the unit above. Following the incident, Mr. Webster alleged that there were gaps around the pipes that penetrated the ceiling of his unit. He concluded that there was no firestopping around the pipes. He also alleged that a building maintenance worker confirmed that there was no firestopping around those pipes or any others in the building. The Websters, using insurance proceeds, hired a contractor to repair the damage caused by the

flood and to reinstall the allegedly missing firestopping. Six months later, the Websters notified Pizzuti that ESEMTRE was rescinding its contract for the purchase of the condominium unit. Pizzuti rejected the rescission. The Websters and ESEMTRE sued both Pizzuti and Turner Construction, the general contractor that constructed the building shell and many of the units. The claims included breach of contract, negligent construction, fraud and violations of the Ohio Consumer Sales Practices Act. Plaintiffs claimed that they never would have purchased the unit if they had known that it lacked proper firestopping. They claimed that the resale value of the unit decreased as a result of the lack of proper firestopping. Defendants asserted that the firestopping was not deficient because it was properly installed as required by the building code. Defendants also disputed Plaintiffs’ claimed damages. The Court disposed of the fraud and consumer claims on summary judgment. The parties proceeded to trial on the breach of contract and negligence claims. The court directed a verdict in favor Defendants on Plaintiffs’

emotional distress claims and the claims asserted by Lisa Webster. The jury concluded that Plaintiffs did not meet their burden of proof on the remaining claims. Last Settlement Demand: $999,999. Last Settlement Offer: $30,000. Length of Trial: eight days. Plaintiffs’ Experts: William Koffel (engineering); Debbi Wilcox (real estate); John Valiulis (engineering). Defendants’ Experts: Michael J. Slifka (engineer) and Gerald Hinkle (real estate). Counsel for Plaintiffs: Douglas J. Suter, Michael Reed and A.J. Hensel. Counsel for Defendant Pizzuti: Joseph A. Gerling and Scott F. Fenton. Counsel for Defendant Turner Construction: Stephen Withee, Daniel Edwards and Erin Orndorff. Judge Patrick Sheeran. Case Caption: Esemtre Corp. v. Pizzutti Properties/ Miranova Limited, et al. Case No. 13CV006598 (2017).

Defense Verdict. Automobile Accident. Plaintiff Alexander Manz was involved in a rear-end collision on I-670 under North Park Street on April 4, 2014. According to Mr. Manz, he was traveling westbound

on I-670 when traffic slowed and he was hit from behind by a vehicle driven by Defendant Raqiah Elmi. The force of the collision pushed Mr. Manz’s vehicle into the rear of another vehicle. According to Ms. Elmi, she was traveling westbound on I-670 when Mr. Manz changed lanes abruptly, entering her lane in front of her. Ms. Elmi said that she struck Mr. Manz’s vehicle as he was changing lanes and that Mr. Manz’s vehicle struck the car in front of it. Mr. Manz claimed that his neck, head and shoulder were injured in the collision. He treated with his primary care physician and completed eight physical therapy sessions. Ms. Elmi denied liability for the accident. She also disputed causation based upon gaps in Mr. Manz’s treatment. There were no pretrial negotiations. Special Damages: $6,500.00. Length of Trial: three days. Plaintiff’s Expert: John Passias, D.O. (primary care). Defendant’s Expert: None. Plaintiff’s Counsel: David A. Bressman. Defendant’s Counsel: David Goldstein. Magistrate Myron Thompson. Case Caption: Alexander Manz v. Raqiah H. Elmi, et al. Case No. 15CV005063 (2017).

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2017 Year in Review Based on data collected from the Franklin County Clerk of Courts Office, the following statistics have been compiled which provide a snapshot of civil jury trials for 2017: Juries rendered verdicts on 43 civil actions in 2017. By comparison, there were 37 civil jury trials in 2016, 40 civil jury trials in 2015, 65 civil jury trials in 2014, 43 civil jury trials in 2013 and 59 in 2012. The highest verdict was $5.2 million and was awarded in a medical malpractice case. The majority of the cases tried were cases involving automobile accidents (16 trials), workers’ compensation claims (nine trials) or medical malpractice claims (eight trials). The remaining trials involved consumer or commercial disputes and one employment discrimination case.

Auto Accident Jury Trials, 2017 • Twelve of the 16 auto accident trials ended in plaintiff’s verdicts. • The damages awarded to plaintiffs ranged from $2,000 to $850,000. The mean of the verdicts was $150,973.18. The median verdict was $15,000. • The non-economic damage awards ranged from $1,250 to $155,000 and seven percent to 74 percent of the total verdict. In only two cases did the noneconomic damages make up more than half of the total verdict.

By comparison: Auto Cases

2017

2016

2015

2014

2013

2012

# of jury trials

% of all civil trials

37%

35%

33%

37%

35%

39%

% Plaintiff’s verdicts

75%

62%

78%

75%

60%

83%

Range

$2,000$850K

$3,087.05$10.9M

$1,655$85K

$1,100$140K

$4,500$230K

$3,700$140K

$29,130

$26,146

$47,957

$36,353

$16,734

$12,415

$15,143

$12,000

Mean Median

$150,973.18 $1,383,118.19 $15,000

$17,826.83

Medical Malpractice Jury Trials, 2017 • Eight medical malpractice cases were tried to verdict in 2017. In two of those cases, the plaintiff prevailed.

By comparison: Med Mal Cases

2017

2016

2015

2014

2013

2012

# of jury trials

% of all civil trials

19%

27%

28%

25%

19%

% Plaintiff’s verdicts

25%

50%

19%

62%

* The list of civil trials was derived from a list of cases for which jurors were requested from the Franklin County Clerk of Courts Office

Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com 64 | Columbus Bar L aw yers Quarterly Spring 2018

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