The Magazine of the Dayton Bar Association | APRIL 2018 | Vol. 67, No. 8
Dayton
Bar Briefs 2018 DBA Diversity Day:
Hate Speech and the
First Amendment Friday April 13, 2018
This Years Keynote Speaker!
H. Louis Sirkin
Preeminent First Amendment Attorney at Santen & Hughes
Barrister of the Month Thomas A. Holton Esq. pg 6
Bankruptcy Law Special Counsel and Chapter 13 Bankruptcy pg 8
Rising Star Zachary S. Heck Esq. pg 22
Dayton
CONTENTS
Bar Briefs
April 2018 | Vol. 67, No.8
Dayton Bar Association Board of Trustees 2017 – 2018
Brian L. Wildermuth President
David P. Pierce First Vice President
Hon. Mary L. Wiseman Second Vice President
Cara W. Powers Secretary
Jonathon L. Beck Treasurer
Cassandra L. Andres Rice Member–at–Large
Angelina N. Jackson Member–at–Large
Hon. Timothy N. O’Connell Member–at–Large
Fredric L. Young Member–at–Large
Susan D. Solle
Immediate Past President
John M. Ruffolo, ex officio Bar Counsel
Sally Dunker, ex officio Executive Director
DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publication for all members. Comments about this publication and editorial material can be directed to the Bar Association office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Sally Dunker, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308 The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.
2
Dayton Bar Briefs April 2018
Features 4 FROM THE EXECUTIVE'S DESK Wills for Heroes 10th Year Anniversary
By Chris Albrektson, DBA Assistant Executive Director
6
BARRISTER OF THE MONTH: THOMAS A. HOLTON ESQ.
By David C. Greer Esq.
8
BANKRUPTCY LAW
12
ENVIRONMENTAL LAW
By Timothy D. Hoffman Esq.
Special Counsel and Chapter 13 Bankruptcy
By Scott G. Stout Esq. & Wayne P. Novick Esq. Contaminated Sites Need Alternative Financing and Effective Risk Shifting
20
FEDERAL BAR
Corruption Trial of Governor Cuomo's Former Aide Tests the Supreme Court's New Definition of "Official Act"
By Augustus B. Flottman Esq.
22
DBA RISING STAR: ZACHARY S. HECK ESQ.
24
FROM THE JUDGES DESK
By Nadia A. Klarr Esq. Mental Illness and Criminal Justice in Our Community
By The Honorable Gregory F. Singer
26
PARALEGAL COMMITTEE
The Paralegal Profession: Sharing the Music
By Sharalie Albanese
Departments 13 APRIL 2018 COMMITTEE MEETINGS 16 CONTINUING LEGAL EDUCATION 30 CLASSIFIEDS & MARKETPLACE Upcoming Events 3 2018 CELEBRATION OF LIFE MEMORIAL LUNCHEON
10
Tues. May 15th | Doors open 11:30am | Sinclair Community College
THE CHANCERY CLUB LUNCHEON
Fri. April 6th | Doors open 11:30am | The Old Courthouse | Limited Seats RSVP: twright@daybar.org
14
2018 DIVERSITY DAY
Fri. April 13th | 8:30am Seminar; Noon Luncheon | Sinclair Community College
18
DBA + UDSL WOMEN’S CAUCUS: FIRST ANNUAL WOMEN IN LAW FORUM
Sat. April 7th | 9:00-12:00pm | UDSL, Rm #103 & #111
19
2018 DOMESTIC RELATIONS INSTITUTE
Fri. April 20th | 9:00-4:45pm | Sinclair Community College
937.222.7902
Celebration of Life Memorial Luncheon • Tuesday, May 15, 2018 To:
DAYTON BAR ASSOCIATION 600 Performance Place 109 N. Main St. Dayton OH 45402-1129
Please reserve _____ place(s) at $35.00 each.............. Total $______ Table (8)______at $280.00............................................ Total $______ -Please enclose a list of those attending-
Phone: 937.222.7902 Fax: 937.222.1308 NAME
Check # Enclosed: Charge my: VISA
MC
AmEx
(circle one)
Discover
Exp
(mo/yr)
/
ADDRESS
Signature PHONE
www.daybar.org
(as shown on credit card)
April 2018 Dayton Bar Briefs
3
EXECUTIVE'S DESK
Wills for Heroes Celebrating of 10 yrs participation, dedication, and appreciation!
By Chris Albrektson DBA Assistant Executive Director
T T
his year our Wills for Heroes program will celebrate its 10th Anniversary. I can’t believe it’s been 10 years since our first event was held on June 7, 2008. At that event Dayton Bar Association and LexisNexis members helped write 39 sets of documents. Since then 123 members have volunteered at a total of 39 events in Montgomery, Greene, Warren, Butler and Hamilton Counties including an event at the Ohio Fire Chiefs Convention in 2013. These Members have helped create a total of 1,388 sets of probate documents such as wills, power of attorney and living wills. Thinking back over the last 10years, I am very honored and humbled to reminisce about the great workings and help we have administered so far. The “honor” stems from the fact that the DBA is the first Bar Association in Ohio to ever hold a Wills for Heroes Event, and I should add, we are the only Bar Association to hold these events currently. The reason we are so successful with our events is very simple, it’s because of our Members and the fact they have always stepped up to the challenge. This includes Attorneys, Judges, Magistrates, Paralegals, Law Students, Paralegal Students, support staff and family members, yes family members. Eli Sperry’s wife Sara has been by his side at 15 events helping to draft the documents. Our current president Brian Wildermuth brought one of his two daughters, Rosie, along to an event to help wherever we needed her, and we did need her. It’s never been a secret that my son and daughter-in-law are fire fighters who took part in the first event. Since then they have been a part of almost every event in some way or another, along with their 12-year-old son CJ, who has never missed an event. For those doing the math, he started as our official greeter at the age of 2 ½. Another thing I can’t help but think are the comments I hear from our Members and the first responders. Phrases like "this is why I became an attorney", “I forgot what it was like to just help without billable hours”, "thank you for helping us" but the one comment that I will never forget is when an older man came up with documents in hand and tears in his eyes and said "tonight is the first night in 20 years
that I will go to bed knowing that if anything happens to me, my family is taken care of ". Talk about a WOW moment! Our first responders go out every day and help others when in fact they have neglected one small detail and that is taking the time to make sure their families will be taken care of if something should happen. That’s what this program is all about, helping those who go out of their way to help us. One of our volunteers has helped at almost 25 events. After an event two years ago, she told me that the first responder she had just helped had been to her house during an emergency with her husband. Now that’s what I call giving back. Speaking of giving back, in December I received a call from someone in the military, who had heard about our program and asked if we could help him. He was stationed out of state but home on leave. He needed to get his Last Will and Testament done before being deployed in February. I sent an email to some core team members asking if they could meet with him right after the holiday, it was no surprise to me that I had several positive responses so within a week, Marybeth Rutledge met with this young man and helped him complete the documents. He was so appreciative that someone went out of her way to help him. Included in our 39 events is two Wills for Vets events. Our first event was co-sponsored by VLP and Legal Aid. That event was held at the Dayton VA to help our veterans. It was a great event and gave us a chance to thank our Nation’s First Responders for their service. Our second Wills for Vets was held this past November with the help of Judge Michael Newman who put us in contact with the local chapter of the Federal Bar Association to hold a very successful event. What’s next for the Wills for Heroes movement in Ohio? In addition to holding events in our area, as the Ohio Coordinator I’m working to promote this program with other Bar Associations around the state and within the next year hope to work with the Toledo Bar Association to help with their first event. I’ve also been approached by a former DBA member who moved out of town about holding an event in his new city. I’m looking forward to helping with these events because after all, don’t all cities and towns have first responders and don’t they all deserve to take part in this program? My focus will remain on the local level and we will continue to hold these events until one or two things happen, our membership stops supporting these events, or our local departments come to me and say, we don’t need this program, you’ve done your job. In any case, I send my heartfelt appreciation out to our team and our members who have put so much hard work into this program as their way of giving back. THANK YOU!
.
4
937.222.7902
2018-19
Nominees
DBA Board of Trustees I
n accordance with Section 2, Article III of the Dayton Bar Association Code of Regulations, Regular Members shall have the right to nominate another candidate or candidates for any elected office for which vacancies exist to be filled at the Annual Meeting not later than noon on the 15th day of the month following the publication of the nominee’s names. One must deliver to the Association office, a nominating petition signed by at least twenty-five (25) regular (voting) members of the Association whose dues for the current fiscal year are paid. Members nominated by the Nominating Committee and approved by the Board of Trustees for vacancies that will exist as of July 1, 2018 are:
www.daybar.org
DAYTON Bar Association
Second Vice President: Fredric L. Young Esq. Green & Green, Lawyers 109 N. Main St., Ste. 500 Dayton, OH 45402-1129
Treasurer: Magistrate Brandon C. McClain Dayton Municipal Court 301 W. Third St. Dayton, OH 45402-1465
Elections will take place at the DBA Annual Meeting on Thursday, June 14, 2018.
April 2018 Dayton Bar Briefs
5
BARRISTER OF THE MONTH
Thomas A. Holton Esq. T T
he still center of the moving world. That phrase calls up a host of images. Core values. Imperturbable disregard for an ever-changing, ever-shifting array of political, philosophical, social and emotional attitudes. Until the dry land turns to sea, you’ll never see a change in me. Hamlet’s perception of Horatio. To put a local face on it, it may not be inappropriate to contemplate the personality and career of Thomas A. Holton. Tom came to the Dayton Bar in 1967 when the streets of American cities and the battlefields of Vietnam seem to be heading toward the apocalypse. The law firm he joined and with which, in a merged transformation, he remains, was one of the top firms in Dayton. The McKee of Estabrook, Finn & McKee was a trial lawyer from a patrician Dayton family. His brother wrote a wonderful book called Big Town that contains everything anyone needs to know about Dayton in the second and third decades of the Twentieth Century. McKee had moved to heaven before Tom’s arrival, but until the merger with Porter, Wright, Morris & Arthur in 1983, his memory lived with the firm in a form of a ritual which opened each day with the entire firm membership gathered to open the daily mail. Like many trial lawyers of his day, McKee had a tendency to disappear after a trial, and his partners initiated that unique practice as a means of maintaining control over the full array of the office workload. Sam Finn was the product of immigrants, committed to hard work and good citizenship, a man of few words, and a follower of the Horatio Alger pathway through life. Hubert Estabrook, in contrast, was a human beehive of activity, proactive, gregarious, bursting with opinions and confidence. Both men were there to greet Tom upon his arrival at the firm, and both remained active until their deaths in the mid-1970s. As Tom arrived, the old leadership was passing to Sam Finn’s son, Chester, who became president of the Dayton Bar in 1968 and to John Henry, a labor lawyer who had joined the firm in 1959. Chester had an intellect which placed him above the frays in which his clients became enmeshed. He had an education at Harvard that remained with him and enhanced his performance throughout his career. John had previously worked for a greeting card company. His idea of heaven was a room full of cigar smoke in which grown men could engage in angry posturing, imaginative invective, and meaningless babble for marathon all-night sessions. Contrasting personalities, Chester and John nonetheless worked together smoothly and compatibly in an atmosphere of mutual respect. In such a law firm you would expect Tom to have had an initiation into the practice of law under the mentorship and guidance of seasoned professionals. Not so. On a daily basis he was treated like an abandoned baby floating in a tsunami of discarded bath water. Prepare that probate account. Handle that complex real estate transaction. Go to the courthouse and try this case. In lieu of instruction and guidance he was led to the door with a cheerful comment along the lines of “good luck.” When he asked for two days to study for the Bar exam, he was given an incredulous stare and one day off. The art of learning to fly on his own wings initially produced some comic moments. In his first jury trial, Tom wasn’t sure whether he and his opponents were supposed to ask continued on page 7
6
Dayton Bar Briefs April 2018
937.222.7902
BARRISTER OF THE MONTH: Thomas A. Holton Esq. continued from page 6
questions alternately to prospective jurors or in separate segments. When he approached Judge McBride to ask what he was supposed to do, the judge told him to go back to his seat and figure it out for himself. The outcome was not a happy one. Tom’s second jury trial was in front of Judge Love. It was a property damage case involving an automobile accident. Tom had the plaintiff. One of Dayton’s formidable defense lawyers had the defendant. At the close of Tom’s case his opponent arose and asked the court for a directed verdict on the ground that Tom had failed to prove that Tom’s client owned the automobile. Tom looked at his client. Tom’s client looked at him. Nothing was said, but Tom was having one of those near-death experiences familiar to all of us who have ever gone to court. Judge Love decided to take the noon recess and defer his ruling until everyone returned to the courthouse. It was probably the longest lunch hour ever experienced. When Tom returned to the courthouse with a client who was probably thinking of calling the Bar Association for a reference to a good plaintiff ’s malpractice lawyer, Judge Love indicated that he would permit Tom to reopen his case to offer the missing evidence. Only Tom’s great self-possession restrained him from kissing Judge Love. In this same period Tom was sent without direction or preparation to take a deposition in a civil case defended by the notable Harry Jeffrey. As Tom fumbled through his questions, Harry sat and stared while drumming his fingers impatiently on the conference table. All Tom could think of was Fu Man Chu’s famous Chinese water drop torture. How did Tom survive in this rough and tumble world with no guide or teacher to offer a helping hand? He had an unusual boyhood in which he had demonstrated an unusual skill. While he is a Dayton native, his schooling was split between Dayton and Florida. A natural athlete, he became immersed in tennis. At some point his life became accurately describable as “another weekend, another tournament.” He became the top-ranked player in Ohio and the top-ranked player in Florida. He played against athletes whose names are still revered and remembered as the stars of their sport. In national ratings he was on a doubles team that was seventeenth in the nation. By the time he went to college at Ohio State he was already suffering from burn-out. Tennis is a sport which requires intense focus. So is the law. Tennis is a sport which requires quick reflexes and reactions. So is the law. Tennis is a sport that provides the exhilaration of victory. So is
www.daybar.org
the law. Tennis is a sport which teaches the inevitability of occasional defeat and the need to be graceful in defeat. So is the law. It should therefore generate no wonder that Tom learned to excel in the practice of law despite his initial experiences of simply being ruthlessly flung from the nest. Perhaps we should instruct all would-be lawyers to forget about their college academic major – just play tennis! Whether or not those tennis skills had anything to do with it, Tom’s progress at Estabrook, Finn & McKee became impressive as he began to focus on labor issues and arbitration, an area he found more compatible than those dramas in the courtrooms of Judge McBride, Judge Love and their brethren. The firm represented Dayton Newspapers, Rike’s and other businesses which required dealing with a number of union groups. Chester Finn was a master of labor relations practice, and Tom gravitated to Chester as a true mentor in a field which Tom found compatible as well as challenging. They became a team, and Tom developed a love for the arbitration process and increasing skill in guiding clients through that process. A sudden and unanticipated personal loss only strengthened the bond between Tom and his senior partner. At age thirty-five, Tom was engaged in a three-week hearing in an effort to set aside a union election involving retail clerks at Rike’s Department Store. The hearing was interrupted when the Administrative Judge called a recess to inform Tom that his father who had come home from an annual Montana fishing trip was found during exploratory surgery to have incurable cancer. In a few months Tom’s father was dead at age sixty-four. Thereafter, Chester Finn became a father figure as well as a close professional associate. That relationship continued up to the time Tom delivered the eulogy at Chester’s funeral, and Tom remains involved in the Thomas B. Fordham Foundation, an educational foundation which has been a nationally recognized undertaking of Chester’s son, Checker Finn, an individual with whom Tom has enjoyed a long and positive relationship. His labor law practice brought Tom in contact with a wide variety of local business people, and his role as counsel for those people expanded his practice into the field of mergers, acquisitions, and various legal issues confronting his business clients. As Chester Finn and John Henry approached their retirement years, Tom found himself with a well-established and expanding array of personal clients and in a transition into a different style of the practice of law. Estabrook, Finn & McKee, while a major player in the Dayton legal community, was always a relatively small entity in terms of numbers of lawyers. In 1983, Finn and Henry led the negotiation that caused the firm to be the first Dayton law firm to merge into a major firm from outside the city. Tom Holton suddenly found himself a partner in a firm of close to two hundred attorneys. All changes in life bring a combination of continued on page 11
April 2018 Dayton Bar Briefs
7
BANKRUPTCY LAW
Special Counsel and Chapter 13 Bankruptcy SS
o, you think the Bankruptcy Code does not impact your practice. Think again. Bankruptcy is one area of the law that can reach far and wide and can impact numerous other areas of law. The most important question you can ask your client is: “Are you in a bankruptcy, and have you ever filed a bankruptcy before?” It does not matter if you are handling contracts, divorce, personal injury, social security, workers’ compensation or criminal matters. You may lose your fee or you may lose your case if you are not properly and timely appointed by the Bankruptcy Court. Clients do not always understand or remember that they have filed a bankruptcy. Most clients do not understand that a Chapter 13 is a bankruptcy. PACER is a tool you must definitely have and utilize. PACER and its use is described later in this article. Suffice it to say that the Bankruptcy Court must approve professional services, fees and settlements in a timely fashion. First, a little background. Employment of Professional Persons is found at 11 U.S.C. § 327 of the Bankruptcy Code, and in particular 11 U.S.C. § 327(e) states: (e) The trustee, with the court’s approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed. Also, see Bankruptcy Rule 2014 for further guidance. In particular, B.R. 2014(a) states: (a) Application for and Order of Employment An order approving the employment of attorneys, accountants, appraisers, auctioneers, agents, or other professional pursuant to § 327, § 1103, or § 1114 of the Code shall be made only on application of the trustee or committee. The application shall be filed and … a copy of the application shall be transmitted by the applicant to the United States trustee. The application shall state the specific facts showing the necessity for the employments, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant’s knowledge, all of the person’s connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. The application shall be accompanied by a verified statement of the person
8
Dayton Bar Briefs April 2018
to be employed setting forth the person’s connections with the debtor, creditors, any other party interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. L.B.R. 2014-1 further breaks down the Application requirements. In particular, Part (a) of the Local Rule subjects the professional persons to the jurisdiction of the Court for approval of that person’s fees. Part (b) of the Rule adds three (3) additional requirements to the Application not contained in B.R. 2014. Part (c) of the Rule adds three (3) additional requirements to the Affidavit not contained in B.R. 2014. Sample forms of the Application and Affidavit requesting the appointment of special counsel are included in the Forms section of the Local Rules under L.B.R. Forms 2014-1(g) – 1 and 2. A reading of the above Code sections and Rules lays out the process, and who is affected. As always, the Application must be served with a twenty-one (21) day notice to object before an order is issued. At one time, Special Counsel filed their own Applications and orders or hired a bankruptcy attorney to file them on their behalf. The problem was that special counsel, for the most part, did not have bankruptcy experience, and really did not want to file anything in the Bankruptcy Court. Then, with the advent of Electronic Case Filing (“ECF”), many special counsel tried to file paper applications, which is not permitted by the Rules. Many applications, orders and the follow-up motions and orders to settle, distribute, and to pay attorney fees and costs (Rule 9019 motions and orders that will be dealt with below) contained substantive and procedural errors. Furthermore, as the Code and Rules above indicate, these applications should be filed by the Trustee or Debtor. Judge Humphrey, Bankruptcy continued on page 9
ow? ! n K ou dia Did Yis on Social Mlelow
A fo The DB iss a beat, date m Never d get up-to an mation along r o f n i DBA r: Twitte ar on_B @Dayt ok: Facebo cation arAsso B n o t Day
937.222.7902
BANKRUPTCY LAW: Special Counsel and Chapter 13 Banruptcy continued from page 8 Judge for the Southern District of Ohio, Western Division at Dayton has issued Policies and Procedures on who may file Applications to retain special counsel. Use the link: https://www.ohsb.uscourts.gov/OHSB/ hearingschedules/Dayton/humphrey,guyr/131606953078958185.pdf. Based on these policies and procedures, either the Trustee or Debtor shall file the Application to retain. However, since the Chapter 13 Trustee, in most instances, has insufficient information on the reason to appoint Special Counsel, and has not personally retained Special Counsel, he defers to the Debtor’s bankruptcy attorney to perform this task. Once the Application has been filed, noticed and served, and the time for filing objections to the Application has run without an objection having been filed, the bankruptcy attorney must then submit an order to the Court approving the retention of special counsel. Once the matter for which special counsel has been employed has been either settled or adjudicated, it is necessary to file an Application to settle, distribute, pay attorney fees and costs, which is commonly called a Rule 9019 compromise or settlement. The relevant rule is Bankruptcy Rule 9019(a). (a) Compromise On Motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct. This 9019 Application or motion must be prepared, filed and served by the Trustee or Debtor’s bankruptcy attorney, and again, the Trustee, for the most part, will defer this task to Debtor’s bankruptcy attorney. This motion/application will also require a twenty-one (21) day notice and be served on all parties. This process is how special counsel will receive payment and be reimbursed for expenses, once the order is approved by the Court. As stated in Judge Humphrey’s Policies and Procedures on this subject, if special counsel (as opposed to the Trustee or Debtor’s bankruptcy attorney) files either of these motions/applications the Court will deny same without prejudice. The second part of Judge Humphrey’s Policies and Procedures on this subject is when to file these applications to retain special counsel, and when to file the 9019 motion/application to approve settlement. This issue recently came to a head as numerous applications to employ were filed, and immediately upon an entry of an order approving the retention of special counsel the 9019 motion to settle/compromise was filed (and in some cases the 9019 motion was filed before special counsel was appointed). Judge Humphrey’s Policies and Procedures were recently revised to remind all counsel, not only bankruptcy counsel, but special counsel, of all types (personal injury, workers’ compensation, social security or other attorneys pursuing a claim on behalf of the Debtor or other affected professional people) of the statutory requirement that the employment of special counsel must receive court approval before they begin or continue work once a bankruptcy case is filed. If the cause of action was pre-petition, the claim should be disclosed in Schedule B of the Bankruptcy Schedules when the case is filed. If Debtor has already retained special counsel, this information should be disclosed; and, at the very least: if the cause of action was pre-petition, the claim should be disclosed in Schedule B of the Bankruptcy Schedules when the case is filed. If Debtor has already retained special counsel, this information should be disclosed. The application to retain should be filed as soon as possible, if not contemporaneously with the Petition www.daybar.org
and Plan. At the very least a letter sent by bankruptcy counsel to special counsel informing said special counsel of the bankruptcy filing and the need to be appointed by the Bankruptcy Court should be sent to special counsel. In fact, at the § 341 Meeting of Creditors this question is asked by the Trustee or Staff Attorney, and this advice given. Again, the Application to Retain Special Counsel should be filed as soon as practicable after the bankruptcy filing or after the claim arises. This is especially true if the case is close to settlement at the time of filing, so as not to jeopardize special counsel’s fee. A problem may arise when the Debtor has a cause of action that arises post-petition. Per the Plan and Code, this cause of action is still property of the bankruptcy estate. Special counsel must pay attention, and must make sure to quiz the Debtor (or any potential client for that matter), as to whether they have filed a bankruptcy or are currently in a chapter 13. If the answer is yes, special counsel needs to immediately contact bankruptcy counsel to prepare and filed the necessary application to retain. Special counsel can also obtain a PACER account, and should run a query on their clients to see if: 1) they are currently in a chapter 7 or 13; 2) periodically check to see if a client has filed chapter 7 or 13 after the retention of special counsel; and, 3) when getting ready to settle a case before distribution, and/or before distribution to see if there is an intervening chapter 7 or 13 filed. It does not cost that much to use the PACER system, and is worth the investment so as not to lose fees. Judge Humphrey’s Policies and Procedures set forth the risk special counsel take in failing to get appointed in a timely manner. He cites In re Jarvis, 53 F.3d 416 (1st Cir. 1995), and In re Carter, 533 B.R. 632 (Bankr. S.D. Ohio 2015). Special counsel might not receive payment for work performed prior to the appointment by the Bankruptcy Court. Furthermore, as Judge Humphrey states: “Any distribution of funds from such a settlement without the prior approval of the bankruptcy court may be set aside or avoided by the bankrupt court and returned to the bankruptcy estate.” The relevant Bankruptcy Code section is 11 U.S.C. § 549(a): § 549. Postpetition transactions (a) Except as provided in subsection (b) or (c) of this section, the trusteed may avoid a transfer of property of the estate— 1) That occurs after the commencement of the case; and 2) (A) that is authorized only under section 303(f ) or 542(c) of this title; or (B) that is not authorized under this title or by the court. By now you should be acutely aware that bankruptcy can affect your practice, and impact your ability to get paid not only on your fees, but the expenses incurred in the prosecution of the action. It is strongly recommended that if you are not sure whether you need to be appointed by the Bankruptcy Court, immediately contact an experienced bankruptcy practitioner of your choice; contact the client’s bankruptcy attorney, if known; or contact the Chapter 13 Trustee’s office. Do not be that attorney that has to forfeit fees and expenses due to your failure to follow the Bankruptcy Code and Rules.
By Scott G. Stout Esq. Jeffrey M. Kellner Chapter 13 Trustee By Wayne P. Novick Esq. Law Office of Wayne P. Novick April 2018 Dayton Bar Briefs
9
The Chancery Club Luncheon
RSVP Today, Seating is Limited!
The DBA wishes to thank the Eichelberger Foundation for their generosity in sponsoring these luncheons.
Contact Tyler Today to RSVP!
Friday, April 6, 2018 The Old Courthouse | Doors open 11:30am Caterer: Boosalis Speaker: The Honorable Erik R. Blaine Judge Blaine will be speaking about "Perspectives on Restorative Justice from the Bench".
twright@daybar.org | 937.222.7902
Upcoming Luncheons: Friday, May 11, 2018 *Liberty Bell Awarded
10
Dayton Bar Briefs April 2018
937.222.7902
BARRISTER OF THE MONTH: Thomas A. Holton Esq. continued from page 7
benefits and burdens. Tom seems throughout his career to have had the enviable ability to welcome the benefits of change and to accept its burden with a smile instead of a moan. Chester and John retired not long after the merger, but Sam Porter, Jim Pohlman, Al McKenna and others of the Porter, Wright office became good friends and good partners for Tom. The commutes between Dayton and Columbus could have been shorter; the weather and traffic on those trips could have been better; and the development of interoffice video conferencing could have come sooner. But the now familiar patterns of the practice of assisting business clients, negotiating mergers, and engaging in arbitration proceedings persisted. And the satisfaction of effectively addressing professional tasks persisted as well. In 2014 Tom went Of-Counsel with the firm of Porter, Wright, although he is still in the office on a daily basis when he is in town. He is also on the Board of Trustees of the University of Dayton. He is able to spend a little more time following his father’s love and example in casting flies to tease trout from streams in Ohio, Michigan and Montana. And he has the vicarious pleasures provided by children, grandchildren and lifetime reading habits to round out a well-wrought life. Tom and Walter Reynolds are the only members of the old Estabrook, Finn & McKee firm who still go to work at the office of its successor. In both the original form and in its merged embodiment, the
www.daybar.org
firm has been a cradle – perhaps “centrifuge” is a better word – for Dayton counsellors. There is a long list of successful practitioners in this city who spent formative years in the offices still haunted by Hubert Estabrook, Chester Finn, John Henry and others. The world still moves and still keeps its occupants in a state of constant change and shifts. Few of those occupants, however, have held to the still center of that moving world as effectively as has Tom Holton. How did he do it? Behind every good man there is a good woman – or, in Tom’s case, three good women. First, he had the great good fortune of marrying his high school sweetheart, Terry Taylor, a graduate of Northwestern University, who remains his sweetheart and chief support. Next, he has had the indispensable stabilizing help of his secretary, Karyn Johnsman, who has been with him for forty-seven years, and of Karen Brumit, who has served as his paralegal for thirty-seven years. And don’t forget the advice old Hubert Estabrook gave Tom on Tom’s first day with his law firm: Always return every client’s phone call on the day it is received, and – when it is impossible to honor that commitment – have your secretary call the client to explain why the call cannot be returned that day. The world may endlessly keep turning, but a lawyer’s attention to his clients should never wait until tomorrow. Tom has faithfully followed that advice for half a century. All great journeys are the result of a succession of small steps.
R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459
Professional Investigative and Legal Support Services Firm Polygraph Asset Searches Criminal Defense Process Service Witness Locates / Interviews Surveillance Civil Case Prep General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577
By David C. Greer Esq. DBA Editorial Board Bieser Greer & Landis, LLP
April 2018 Dayton Bar Briefs
11
ENVIRONMENTAL LAW
Contaminated Sites Need
Alternative Financing and Effective Risk Shifting By Timothy D. Hoffman Esq. Dinsmore & Shohl, LLP
A A
USEPA Superfund Task Force (“Task Force”) was created in 2017 to study and provide recommendations for improving and expediting site cleanups and promoting redevelopment. Of the Task Force’s many recommendations, perhaps the greatest opportunity for expediting the remediation, reducing expense, and encouraging redevelopment is from encouraging non-traditional approaches to financing site cleanups. The Task Force identifies this goal of employing non-traditional financing as its first strategy to promote its goal of “Encouraging Private Investment.”1 According to the Task Force, third party investment is a way “for the Agency to accelerate cleanups and promote reuse of NPL sites.” To achieve this goal of increased third party investment, EPA proposes to consider “alternative approaches to financing site cleanups, including environmental liability transfer approaches.” If the Task Force recommends increasing use of “non-traditional financing,” what is wrong with “traditional” financing? Contracting mechanisms impact both cost and efficiency. For example, according to a 2013 report by the EPA Office of the Inspector General, EPA’s continued reliance on “high risk cost-reimbursement and time-andmaterials task orders” in its own Superfund contracts lead to dramatically increased expenses.2 As described in the report: One contract was a T&M contract, and the other contract was awarded by paying the contractor a fixed price per ton of remediated land. Tasks performed for each contract were similar. We used a conversion rate to convert tons to cubic yards and found the cost per cubic yard for the T&M contract was $80.16, while the cost per cubic yard for fixed price type contract was $32.74. EPA awarded the first contract using a high risk T&M contract. It later awarded the second contract using a fixed
12
Dayton Bar Briefs April 2018
price per ton because of several concerns, one of which was the cost being incurred to clean up the yards using the T&M contract. By moving to the fixed-price type contract, Region 7 saved $13,828,003 for the 261,607 cubic yards removed by the fixed-price contractor. According to the OIG, “[r]educing the reliance on these contracts can result in numerous benefits, including cost savings, increased competition, and achievement of socio-economic goals.” When considering the financing of property owners and PRPs, the type of funding matters as well. While there are certainly benefits in holding property owners and PRPs accountable, mere accountability is not a predictor of creativity, efficiency, and vision in returning a property to beneficial use. Ultimately, the best solution will find a way to get contaminated properties into the hands best suited and incentivized to complete the remediation in a timely and cost efficient manner. Communities do not want to see a vast swath of property labeled “Superfund” and kept from beneficial use for decades. Ideally, a cleanup would quickly return a property to a condition in which the property is not just safe, but also a potentially attractive property for local investment. However, the fundamental question is why would an investor decide to invest in a Superfund cleanup? Historically, the EPA has sought to encourage the transfer and reuse of a property through developments such as Bona Fide Prospective Purchaser Status, comfort/status letters, and Ready for Reuse Determinations. At the same time, PRPs have sought to transfer liability and achieve cost certainly through combinations of indemnities, hold harmless clauses, fixed price contracts, and insurance agreements. Large and uncertain environmental remediation costs can pose a risk for not just a company’s value, but its viability.
While the EPA’s traditional tools to encourage reuse are certainly helpful, the Task Force recommends exploration of addition approaches to risk management to improve efficiency and encourage the reuse of CERCLA sites. In particular, the Task Force recommends review of environmental liability transfer (“ELT”) approaches at PRP cleanups. In addition to exploring the expanded use of ELTs, the Task Force recommends establishing a national working group to identify “[c]reative uses of insurance, annuities, indemnification and other tools for third parties interested in buying/selling the risk of cleanup.” An ELT has advantages over traditional funding mechanisms. In an ELT, a contractor agrees to accept title for the contaminated property and agrees to accept liability for the remediation. The contractor assumes this liability for a fixed price and accounts for possible overruns through insurance. This approach allows the property owner to transfer a potentially large and uncertain liability for a fixed price. In theory, the contractor assuming liability for the title would be sufficiently motivated to complete the remediation in an efficient manner and redevelop the site for a profit. As expenses increase with time, a fixed price approach should incentivize speed in completing the remediation. continued on page 13 Endnotes: Superfund Task Force Recommendations, U.S. Environmental Protection Agency, July 25, 2017. 2 EPA Should Increase Fixed-Price Contracting for Remedial Actions, U.S. Environmental Protection Agency, Report No. 13-P-0208, March 28, 2013. 1
937.222.7902
ENVIRONMENTAL LAW: Contaminated Sites Need Alternative Financing and Effective Risk Shifting continued from page 12 The ELT approach is not without risk. In 2017, an ELT contractor sued a PRP for recession of the agreement based on alleged failure by the PRP to disclose the extent of contamination on the property. While the case settled, it does demonstrate that an erroneous calculation of remediation costs could pose a threat to the viability of an ELT. Ultimately, a default on cleanup obligations by a contractor, for whatever reason, negates the advantages of a private fixed price solution. For this reason, it would be difficult, if not impossible, to enter into an ELT without a clear picture of the nature and extent of the contamination at a site. Fundamentally, an investor will only take on the obligation of cleaning up and redeveloping a Superfund property if it has a level of certainty in a profitable outcome. As stated by Stephen A. Cobb, on behalf of the Association of State and Territorial Solid Waste Management Officials,3 at a hearing on the Superfund Task Force’s recommendations, “Investors require a level of certainty not typically found in the Superfund program.” Prospective purchasers of a Superfund property must negotiate a confusing array of statutory protections, liens, and representations that can make financing difficult. While it remains to be seen what specific actions the Task Force will recommend to promote alternative financing at site cleanups, it is worth exploring fixed price solutions in the interest of speeding up and reducing the cost of remediation.
Join a DBA Committee!
Share & Learn
DBA Committee Meetings April 2018 Juvenile Law
Monday, April 2nd @ 4:00pm
Diversity Issues CANCELED- Please attend Diversity Day on 4/13. Estate Planning Trust & Probate Wednesday, April 4th @ 4:00pm *CLE optional YLD Thursday, April 5th @ 5:30pm @ Brixx Ice Co. Federal Practice
Monday, April 9th @ Noon
Labor & Employment
Tuesday, April 10th @ Noon
Appellate Court Practice & ADR Wednesday, April 11th @ Noon Domestic Relations
CANCELED-Please attend DR Institute on 4/20.
Workers Comp & Social Security Thursday, April 12th @ Noon Real Property
Thursday, April 12th @ Noon
Criminal Law
Wednesday, April 18th @ Noon
Paralegal Wednesday, April 18 @ 5:30pm @ Sinclair Law Library Public Service & Congeniality
Friday, April 20th @ 11:00am @ The Old Courthouse
Endnotes:
Civil Trial Practice & ADR
Tuesday, April 24th @ Noon *CLE optional
U.S. House of Representatives Committee on Energy and Commerce Subcommittee on the Environment, January 18, 2018.
Corporate Counsel
Thursday,April 26th @ 4:30pm @ Bravo Restaurant
3
www.daybar.org
April 2018 Dayton Bar Briefs
13
3.0 CLE Hrs
Friday, April 13, 2018
Sinclair Community College
2018 DBA Diversity Day
Hate Speech
and the First Amendment Friday April 13, 2018 | 3.0 CLE Hrs | Seminar #1718-098 8:30-11:45am Seminar | 12:00-1:15pm Luncheon Sinclair Community College, Building 12
This Years Keynote Speaker!
H. Louis Sirkin
Seminar Agenda:
Preeminent First Amendment Attorney at Santen & Hughes
8:30-9:30am
First Amendment Implications in the Day of Social Media Thaddeus A. Hoffmeister Esq., Professor University of Dayton School of Law 9:30-9:45am Break 9:45-10:45am
Hate Speech and the Flint Michigan Water Crisis Case Kristin Totten, Education Attorney ACLU of Michigan 10:45-11:45am
Hate Speech Cases in Ohio Laurie Briggs, Staff Attorney ACLU Ohio
Member Rate:
Seminar $105
Lunch $30
Both $125
11:45am Adjourn
NonMember Rate:
Seminar $140
Lunch $35
Both $165
Pricing:
Passport $30
Lunch + Keynote: 12:00-1:15pm
The First Amendment Since Ashcroft v. Free Speech Coalition H. Louis Sirkin, Preeminent First Amendment Attorney Santen & Hughes
Register for Seminar#098: www.daybar.org/cle 937.222.7902 Dayton Bar Association
14
Dayton Bar Briefs April 2018
109 N. Main St., Ste. 600, Dayton, OH 45402
937.222.7902
Why YOU Should Attend 2018 Diversity Day
The 2018 DBA Diversity Day will be impactful and informative for all that attend! Seminar Speakers:
Thaddeus A. Hoffmeister Esq. Professor, UDSL
Kristin Totten Esq. Education Attorney, ACLU of Michigan
Laurie Briggs Esq. Staff Attorney, ACLU of Ohio
During the Luncheon, bear witness to the expertise of Attorney Louis Sirkin, a preeminent First Amendment attorney with the law firm of Santen & Hughes in Cincinnati, OH. Mr. Sirkin is going to talk about his new book, Civil Rights, Hate Speech and the recent trends concerning their progression since his 2002 landmark First Amendment Case and United States Supreme Court victory - Ashcroft v. Free Speech Coalition. Attorney Kristin Totten of the ACLU of Michigan will speak during the morning Seminar. Ms. Totten represents the schoolchildren that were recently exposed to and affected by the lead-poisoned water over the past two years as a result of the city's infamous “Flint Michigan Water Crisis”. There will be many more leading authorities in attendance discussing an array of similar topics early on during the seminar portion of the day. University of Dayton School of Law (UDSL) Professor, Thaddeus A. Hoffmeister Esq., will speak on the topic: “First Amendment Implications in the Day of Social Media,” followed by, Kristen Totten, Education Attorney for the ACLU of Michigan, speaking on the topic "Hate Speech and the Flint Michigan Water Crisis Case". Lastly, Laurie Briggs, Staff Attorney of the American Civil Liberties Union (ACLU) will wrap up the seminar portion speaking on the topic: “Hate Speech Cases in Ohio.” You don't want to miss a minute of this entire program!
About the Keynote Speaker!
H. Louis Sirkin H. Louis Sirkin is one of the nation’s preeminent First Amendment and criminal defense attorneys. Over more than 50 years of practice, Sirkin has consistently defended the free speech and constitutional rights of countless individuals and businesses, including adult entertainment establishments, museums, artists, activists, and ordinary citizens in all types of cases. Lou is both a Fellow of the American College of Trial Lawyers and the American Board of Criminal Lawyers. Sirkin’s most notable accomplishment was his 2002 victory before the United States Supreme Court in Ashcroft v. Free Speech Coalition. In addition, he has defended on appeal numerous individuals on death row. In total, he has handled more than 125 appeals in civil and criminal cases. Sirkin frequently lectures to students at the country’s top universities, participating in panels at Harvard University, New York University, the University of Cincinnati, the University of Michigan, and Northern Kentucky University, to name a few. He has served as an Adjunct Professor of Law at the University of Cincinnati, where he taught habeas corpus law and a First Amendment seminar. www.daybar.org
April 2018 Dayton Bar Briefs
15
daybar.org/cle
springinto cle Estate Planning Trust and Probate Committee presents:
Trusts and Tax
Wednesday, April 4, 2018 | 3:00-5:00pm 2.0 CLE General Hrs | Seminar #1718-100 Presenter: Professor Dale Searcy CommitteeM $50 | M $70 | NM $90 | Passport $0 Join the Estate Planning Trust and Probate Committee as Dale Searcy presents Trust and Tax issues. DBA and University of Dayton School of Law Women’s Caucus present:
The First Annual Women in the Law Forum details on page 18 Saturday, April 7, 2018 | 9:00am-12:00pm 2.0 CLE Hrs | Seminar #1718-097 Students $10 | M $25 | NM $50 | PP $0 UDSL, Room 103, Room 111 Join us as we discuss the importance of gender equality in the legal profession, and address the barriers, as well as the solutions, to achieve such equality amongst all lawyers and law students. Agenda: 9:00-10:00am Barriers to Women & Minorities in the Legal Profession Barbara J. Doseck, Esq., Hon. Mary Wiseman, Hon. Mia Spells, Magistrate Jacqueline Gaines, Cassandra Andres Rice Esq. 10:00-10:30am Salary Negotiation 10:30-11:00am Pursuing a Legal Career in Governmental Roles Hon. Mary K. Huffman 11:00-11:15am Award Presentation 11:15-12:00pm Networking
2018 DBA Diversity Day: “Hate Speech and the First Amendment” details on page 14 Friday April 13, 2018 | 8:30-11:45am Seminar | 12:00-1:15pm Luncheon 3.0 CLE Hrs | Seminar #1718-098 Sinclair Community College, Building 12 Member: Seminar $105 | Lunch $30 | Both Seminar and Lunch $125 Nonmember: Seminar $140 | Lunch $35 | Both Seminar and Lunch $165 Passport $30 Seminar Agenda: 8:30-9:30am First Amendment Implications in the Day of Social Media Thaddeus A. Hoffmeister Esq., Professor UDSL 9:30-9:45am Break 9:45-10:45am Hate Speech and the Flint Michigan Water Crisis Case Kris Totten, Education Attorney ACLU of Michigan 10:45-11:45am Hate Speech Cases in Ohio Laura Briggs, Staff Attorney, ACLU Ohio Luncheon: 12:00-1:15pm The First Amendment Since Ashcroft v. Free Speech Coalition H. Louis Sirkin, Preeminent First Amendment Attorney Santen & Hughes
16
Dayton Bar Briefs April 2018
2018 Domestic Relations Institute details on page 19 Friday, April 20, 2018 | 9:00-4:45pm 6.0 CLE Hrs | Seminar #1718-099 Sinclair Community College, Building 12 M $215 | NM $300 | PP $30 *Materials will be available in digital format. **Printed Material $30, sales end April 17th. Topics Include: Everything You Need to Know About the "Tax Cuts and Jobs Act of 2017" for your D.R. Practice Terry Yoho, CPA & Elizabeth H. Downer, CPA The Case Law Update You Cannot Afford to Miss! Gary Gottfried Esq. Update from the Bench Hon. Denise L. Cross & Hon. Timothy D. Wood QDROs & DOPOs: Best Practices and Avoiding Mistakes Keith Kearney, Esq. Ethics & Professionalism Diane DePascale, Esq. Civil Trial Practice and ADR Committee presents:
Ethical Pitfalls – How Not to Meet The Grievance Committee Tuesday, April 24, 2018 | 12:00-1:00pm 1.0 CLE Hr Professional Conduct | #1718-102 CommitteeM $25 | M $35 |NM $45 | PP $30 Speaker: Jeffrey Hazlett Esq. This presentation will focus on the Rules of Ethics, the set-up for the DBA grievance committee, common ethical pitfalls, and what to do if you didn’t avoid the pitfalls and are called before the ethics committee. Recent Ethics Violations & the Ethical Perils of Social Media (video replay) Thursday, April 26, 2018 | 9:00-12:15pm 3.0 CLE Hrs Professional Conduct | Seminar #1718-107 M $105 | NM $150 | PP $0 Presenters: John Ruffolo Esq., DBA Bar Counsel; & Glen R. McMurry, Partner Dungan & LeFevre Co, LPA Criminal Rules by the Number (Part 1) – Pretrial Proceedings Thursday, May 10, 2018 | 9:00-12:15pm 3.0 CLE Hrs | Seminar #1718-104 M $105 | NM $150 | PP $0 Presenter: Hon. Mary K. Huffman, Montgomery County Common Pleas Court This first part of a three-part series on the Ohio Criminal Rules will focus on pre-trial proceedings. This session is an important primer on the Ohio Criminal Rules for anyone practicing criminal law. The topics to be covered in this first session include: 9:00am Crim. R. 6 – The grand jury. Crim. Rule 7 – The indictment and the information. 9:30am Crim. R. 8 – Joinder of offenses and defendants. Crim. R. 13 and 14 –Trial together of indictments or information or complaints and relief from prejudicial joinder. 10:00am Crim. R. 15 – Depositions. 10:30am Crim. R. 16 – Discovery and inspection. Crim. R. 17 – Subpoenas. Crim. R. 17.1 – The pretrial conference. 11:00am Crim. R. 11- The plea. 12:15pm Adjourn
937.222.7902
2018
Probate Law Institute Special Thank You to our partial Sponsor, The Disability Foundation
Thank You 2018 Probate Law Organizers! Ed Smith Esq., Nolan, Sprowl & Smith David Brannon Esq., Brannon & Associates Ed Smith Esq.
David Brannon Esq.
www.daybar.org
April 2018 Dayton Bar Briefs
17
daybar.org/cle The DBA and University of Dayton School of Law Women’s Caucus present:
DAYTON Bar Association
The DBA First Annual
FORUM
A gathering for DBA Members BOTH Women & Men
Women, Men and Firms sharing important topics and information! Saturday, April 7, 2018 9:00-12:00pm | 2.0 CLE Hrs UDSL, Rm #103 & #111 Students $10 | Member $25 | NonMember $50
Join us as we discuss the importance of gender equality in the legal profession, and address the barriers, as well as the solutions, to achieve such equality amongst all lawyers and law students. AGENDA: 9:00-10:00am Barriers to Women & Minorities in the Legal Profession Barbara J. Dosek Esq. Magistrate Jacqueline Gaines Cassandra Andres Rice Esq. Honorable Mia Spells Honorable Mary Wiseman Student Member $10 10:00-10:30am Salary Negotiation Member $25
Pricing
10:30-11:00am Pursuing a Legal Career in Governmental Roles Honorable Mary K. Huffman 11:00-11:15am Award Presentation 11:15-Noon Networking 18
Dayton Bar Briefs April 2018
NonMember $50
Register Seminar#097 www.daybar.org/cle 937.222.7902 Dayton Bar Association
109 N. Main St., Ste. 600, Dayton, OH 45402
937.222.7902
Friday, April 20, 2018
6.0 CLE Hrs
Sinclair Community College
2018
Domestic Relations Institute Friday, April 20, 2018 | 9:00-4:45pm 6.0 CLE Hrs | Seminar #1718-099 Sinclair Community College, Building 12
Topics Include: uEverything
You Need to Know About the "Tax Cuts and Jobs Act of 2017" for your D.R. Practice Terry Yoho, CPA & Elizabeth H. Downer, CPA
Pricing Member $215/$230 day of NonMember $300/$345 day of Passport $30/$45 day of Printed Materials $30 order by April 17th *Materials will be available in digital format.
uThe
Case Law Update You Cannot Afford to Miss! Gary Gottfried Esq.
uUpdate
from the Bench Honorable Denise L. Cross & Honorable Timothy D. Wood Montgomery Cty Domestic Relations Court
Register Seminar#099 www.daybar.org/cle
uQDROs
& DOPOs: Best Practices and Avoiding Mistakes Keith Kearney Esq., Rogers & Greenberg, LLP
937.222.7902
uEthics
& Professionalism Diane DePascale Esq., DePascale Law Offices
Dayton Bar Association
109 N. Main St., Ste. 600, Dayton, OH 45402
DBA CLE Registration Form Member
Passport Holder
NonMember
CLE Seminar #(s) _____________________________________
Name(s) ____________________________________________________________________________________________________ Firm/Company _______________________________________________________________________________________________ Address _____________________________________________________________________________________________________ City, State + Zip_______________________________________________________________________________________________ Phone ___________________________________E-mail _____________________________________________________________ Enclosed is my check in the amount of $___________________ (made payable to the Dayton Bar Association) Please charge my credit card the amount of $_______________
Visa
MasterCard
Discover
Am. Express
Card Number ____________________________________________________ Expiration Date______/______CVV Number_______ Cardholder Signature___________________________________________________________________________________________ www.daybar.org
April 2018 Dayton Bar Briefs
19
FEDERAL BAR
Corruption Trial of Governor Cuomo's Former Aide Tests the Supreme Court's New Definition of "Official Act"
TT
he trial of a former aide to New York governor Andrew Cuomo is the first in a series of high-profile cases that will apply the Supreme Court's clarified definition of an "official act," which is a critical element of public corruption crimes. Cuomo's former aide, Joseph Percoco, is charged with honest services wire fraud and extortion under color of official right. Both alleged crimes require that the government prove Percoco accepted a bribe or something of value in exchange for an "official act" by Percoco. The Percoco trial is full of juicy details, such as Percoco and his confederates not-so-cleverly calling their construction contract bribes "ziti," in a life imitating art reference to HBO's The Sopranos. More gripping, however, is whether prosecutors can meet the challenge of proving an element that has made success elusive in the United States' recent efforts to prosecute public officials for corruption. The federal bribery statute, 18 U.S.C. ยง 201, defines an "official act" as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit."1 This definition essentially has two elements. First, the government must identify a "question, matter, cause, suit, proceeding or controversy" that is before or can be brought before the public official.2 Second, the government must prove that the public official made a decision or took an action "on" the issue brought before or that could have been brought before the public official.3 Determining the scope of conduct that falls within this definition can be problematic, as evidenced by the tossed convictions of three high-profile officials: former Virginia Governor Robert McDonnell and New York State Senators Sheldon Silver and Dean Skelos.4 In its June 2016 session, the Supreme Court heard the Virginia Governor's case, McDonnell
20
Dayton Bar Briefs April 2018
v. United States, and weighed in to address the problems with the scope of the definition of an "official act." The Court specified that the first element of the definition requires a formal exercise of governmental power. The Court concluded this requirement of a formal exercise of power is the connotation of the "cause, suit, proceeding, or controversy" language in the definition of an official act. In turn, the Court explained that "question" and "matter" must be interpreted in consideration of the words that follow: "cause," "suit," "proceeding," and "controversy." Thus, "question" is understood "as a subject or point of debate or a proposition being or to be voted on in a meeting, such as a question before the senate."5 A "matter" is "limited to a topic under active and usually serious or practical consideration, such as a matter that will come before the committee."6 Read together, the entire phrase requires an official governmental proceeding that involves an exercise of governmental power, e.g., an agency determination or committee hearing.7 For example, the Court agreed that government committee decisions on whether state universities would undertake certain scientific research projects, or whether a state commission would allocate grant money for a study, constitute "questions" or "matters" because "each involve[d] a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing."8 Using the same example of committee decisions on state university research studies, the Court also specified the kind of conduct that meets the second element (conduct that constitutes a "decision or action" on a formal exercise of government power). The Court explained either "a decision or action to initiate a research study -- or a decision or action on a qualifying step, such as narrowing down the list of potential research topics -- would qualify" as a decision or action for the purpose of meeting the definition of an official act.9
By Augustus B. Flottman, Esq. Faruki Ireland Cox Rhinehart & Dusing PLL
Yet, these decisions or actions can still be relatively tangential to the formal exercise of power. The Court indicated that the exertion of pressure on another official to perform an official act constitutes a "decision or action."10 Similarly, providing advice to another official while knowing or intending that the advice will form the basis of the other official's act qualifies as a "decision or action."11 So did Percoco take an official act in exchange for some ziti? Among many of the government allegations is that Percoco helped a construction firm by using his official position to influence the decision of a New York economic development agency (the "ESD"). The indictment states that the local ESD director and counsel determined the construction firm's project triggered a requirement for a labor peace agreement -- a costly determination for the construction firm. Percoco is alleged to have accepted 35,000 in cash ziti from the construction firm and then called up the chain to a Deputy State Operations Dicontinued on page 21
Endnotes: 18 U.S.C. ยง 201(a)(3). Id. 3 Id. 4 McDonnell v. United States, 136 S. Ct. 2355 (2016); United States v. Silver, 864 F.3d 102 (2d Cir. 2017), cert. denied, No. 17562, 86 U.S.L.W. 3356, 2018 U.S. LEXIS 654 ( Jan. 16, 2018); United States v. Skelos, Nos. 16-1618-cr, 16-1697-cr, 2017 U.S. App. LEXIS 18525 (2d Cir. Sep. 26, 2017). 5 McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016) (internal quotation marks and citation omitted). 6 Id. (internal quotation marks and citation omitted). 7 Id. 8 Id., at 2370. 9 Id. 10 Id. 11 Id. 1 2
937.222.7902
D.R. E-FILING
[EFFECTIVE WHEN IMPLEMENTED BY THE COURT] PROPOSED LOCAL RULES FOR E-FILING FOR THE MONTGOMERY COUNTY DOMESTIC RELATIONS COURT COMMENTS REQUESTED: Pursuant to Rules of Superintendence for the Courts of Ohio, Rule 5 – Adoption of Local Rules, proposed local rules for E-filing are being published for public comment period until Tuesday, MAY 1, 2018. The proposed local rules for E-filing may be found in the Montgomery County Domestic Relations Division website under Proposed Local Rules for E-filing or by using the following link: http://www.mcohio.org/government/courts/common_pleas_court_-_domestic_relations_ division/DR_Local_Rules_for_E-filing.pdf Comments on the proposed revised local rules can be submitted in writing to: Keith R. Hall, Legal Administrator Montgomery County Domestic Relations Court 301 W. Third Street, 2nd Floor; P.O. Box 972; Dayton, Ohio 45422 e-mail: hallk@mcohio.org Comments must be received by Tuesday, May 1, 2018
FEDERAL BAR: Corruption Trial of Governor Cuomo's Former Aide Tests the Supreme Court's New Definition of "Official Act" continued from page 20 rector, and three days later --voila -- the local ESD director reversed the decision requiring the costly labor peace agreement. Under these facts, if proven, Percoco arguably checks all the boxes required under the definition of an official act. As the Supreme Court explained, the first element is satisfied where there is a formal exercise of governmental power such as an agency determination or committee hearing. The second element requires that the public official take an official decision or action "on" the formal exercise of power, and can be satisfied by one official exerting pressure on another official to perform a decision or action on a formal exercise of power. Here, the ESD determination on whether or not a peace labor agreement is required should fulfill the first element as an agency determination. In turn, Percoco's act to pressure the Deputy State Operations Director to have the local ESD director reverse the initial ESD's determination on the peace labor agreement meets the second element because Percoco ostensibly pressured the Deputy to act on the ESD determination. Not all of the allegations in the Percoco case fit so nicely into the new and improved definition of an official act. Keep an eye on the case and any appeals that follow as higher courts will likely engage in the various complexities of public corruption law. Surely, Sheldon Silver and Dean Skelos will be watching given their new forthcoming trials on the same issues. www.daybar.org
Trust
HERBERT M. EIKENBARY What is The Eikenbary Trust? The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/ reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance. Through the efforts of the Trustee's and the Dayton Bar Association's counsel, we have been successful with the Court to better effectuate the purpose of Mr. Eikenbary's Will by increasing the amount of loans made to young attorneys, which was originally only $500.00, to $4,000 per grant. The maximum available individual loans, are up to $6,000.00 at 4% interest. This is indeed a big difference from the original loan amount of $500, but the interest amount has remained the same so the financial burden will not be weighted heavily.
How to Apply? Application forms are available from the Herb Eikenbary Loan & Grant Program through the Eikenbary Advisory Committee of the Dayton Bar Association. If you would like to take advantage of these programs, contact:
Sally Dunker, DBA Executive Director Dayton Bar Association 109 N. Main St., Suite 600 Dayton, OH 45402-1129
April 2018 Dayton Bar Briefs
21
DBA RISING STAR
Rising above Star the Bar Zachary S. Heck Esq. LL
awyers tend to wear many hats. On any given day, a lawyer may serve as an advisor, litigator, educator, mentor, or leader. This month's Rising Star of the Bar, Zachary Heck, wears all of these hats and thrives in handling the challenges that each brings. Zach grew up in the Dayton area and attributes much of his professional success to
22
Dayton Bar Briefs April 2018
the education he received at Centerville High School. He gravitated towards Centerville's course offerings in literature, history and philosophy, and he participated in extracurricular activities that prioritize "thinking on your feet," like Mock Trial, Academic Team, and Model United Nations. Through his time at Centerville, Zach developed an appreciation and passion for the liberal arts, which he carried with him throughout college and law school before beginning his practice at Faruki Ireland Cox Rhinehart & Dusing. Upon enrolling at the University of Dayton, Zach majored in Philosophy and English while minoring in Sociology and Religious Studies. Thinking he would one day become a teacher, Zach also took education courses. But Zach found interest in the law, primarily because of the role stewardship has in the practice. He saw lawyers on television and in movies, and he recognized that no one wants to meet with a lawyer. Rather, people turn to lawyers during times of need. Being that person – the person others turn to during difficult times – appealed to Zach. While studying at UD, he worked as a runner at the former law firm of Dunlevey, Mahan, & Furry. During that time, particularly under the mentorship of Richard Carr, Zach witnessed first-hand the positive influence lawyers have in the community. As a result, Zach dropped the education courses and set his sights on the practice of law. Little did he know that he would ultimately wear the hats of both teacher and lawyer. After graduating magna cum laude from UD, Zach continued his studies at Indiana University Maurer School of Law. At IU, Zach graduated magna cum laude, and was inducted into both the Order of the Barrister and Order of the Coif. He served as managing editor on law review as well as Executive Problem Author for IU's Sherman Minton Moot Court Competition. Along with his co-author, Katlyn VanDriessche, Zach was responsible for crafting a fictional appellate problem from scratch that over 120
second-year law students would litigate over the course of five months. It was a position of leadership and responsibility that he earned from a combination of academic performance, law review experience, and success as a semifinalist in the previous year's 160+ person competition. After law school, Zach returned home to practice at Faruki. Initially, Zach's practice was primarily Fair Credit Reporting Act litigation, with a focus on privacy implications. Because of the emerging client need for proactivity and data governance, Zach's practice evolved to encompass more pre-litigation guidance. Zach often tells his clients that while he is good in a fight, he would much prefer to keep his clients out of the fight to begin with. Accordingly, Zach assists clients in building data governance programs while providing regulatory analysis, risk management, policy development, training, and audits. In addition to a steady privacy and security practice, Zach is active in the local bar. He serves as Communications Chair of the Federal Bar Association Dayton Chapter, and is also Co-Chair of the Dayton Bar Association's Editorial Board. If his active practice and bar involvement were not enough to keep him busy, Zach is also an adjunct professor at Wright State University, where he teaches "Legal Aspects of Cybersecurity." Zach created the course, which covers issues related to federal privacy regulation, breach response, Fourth Amendment jurisprudence, and cyber warfare. Zach teaches graduate and undergraduate students enrolled in the Computer Science and Engineering department in an effort to better prepare students for industry challenges. While one might think that the Socratic Method would turn prospective pupils away, his reputation among both students and faculty could not be better. Last year, Zach received the department's Adjunct Faculty of the Year Award, demonstrating that his passion in the classroom has only served to engage students.
continued on page 23
937.222.7902
RISING STAR: Zachary S. Heck Esq. continued from page 22
draft essays. He is a mentor in the truest sense. One of his former students, Nayanika Challa, described Zach as "the most energetic, inspiring, and passionate teacher, whose excitement is contagious." Nayanika, who graduates from University of Chicago next month and will be attending medical school in the Fall, learned from Zach to work so hard that no one will ever question her resolve or the quality of her work. Another former student, Sabrina Grandhi, attributes her success on the college mock trial circuit to the foundational building blocks that she took from Zach while competing during high school. Sabrina, whose University of Virginia Mock Trial team won the national championship last year, learned from Zach to push her limits and take charge to maximize her strengths. A current student, Sery Gunawardena, learned about the importance of advocacy and gained the tools to be an effective advocate for herself and her community. Zach, alongside Alysia Goss of the Montgomery County Public Defender's Office, coached Sery's team to a 16-0 awards record at the District and Regional competitions this season. and ultimately to the quarter-final round of the State Tournament. Centerville was recognized as placing in the top 2% of teams in the State of Ohio. Zach's excellence in coaching will soon be recognized by the Centerville Education Foundation, which is inducting him into the Centerville Hall of Fame in April as the 2018 Citizen Advocate. In addition to his education, Zach owes his success to his parents. He attributes his work ethic and attention for details to values instilled by his father, Larry. He taught Zach that any time he attaches his name to something, he ought to make it meaningful. To that end, his dad encouraged him to never passively participate, but to always be actively engaged in the causes that matter to him. His mother, Kim, has always encouraged him to use his voice to make a positive impact in the community. She is often Zach's toughest critic, volunteering to read a draft article or provide feedback for a public speaking engagement, and Zach proudly admits that he would be nowhere without his mother's advice. Finally, Zach's most-valued mentor and partner is his wife, Jenny. Zach and Jenny met during their third year at IU while serving on the Moot Court Board. While Zach served as co-author of the competition's problem materials, Jenny was responsible for managing competition rounds, scheduling the competitors, and overseeing scoring integrity. After www.daybar.org
hours of working together, Zach realized he had met his best friend. Jenny is a lawyer with Frost Brown Todd, and she constantly influences Zach's approach to the practice of law. He is inspired by Jenny's ability to harness emotional intelligence and empathy in every aspect of her work, and he looks to Jenny as a role model as he strives to do the same for his clients. According to Zach, "Jenny is simply brilliant." With his many hats, it is hard to imagine that Zach has any time left at the end of the day. But he and Jenny make time to relax by cooking together, reading, and spending time with their dog, Franklin. Each week, he and his wife, who together own a collection of over 3,000 films, try to watch at least one movie together. One of Zach's favorite movies, The Candidate starring Robert Redford, follows an ambitious lawyer campaigning in a U.S. Senate race he is widely expected to lose. Throughout the movie, Redford's character is so besieged by following the do's and don'ts of campaigning, that he loses sight of why he is running in the first place. The movie closes with Redford unexpectedly winning the race and asking the unanswered question, "What do we do now?" Unlike Redford, Zach does not wear his many hats for the sake of doing what is expected. Instead, Zach lives his life focused on his passions: serving his clients, teaching, and coaching. He does not ask "what do we do now?" Instead, he continues to invest in
his passions because they fulfill him. While he may acquire new hats, new students, and new clients, one thing is certain: Zach's star will only continue to rise.
By Nadia Klarr Esq. Chair: DBA Editorial Board Taft Stettinius & Hollister LLP
Paralegal Committee Meeting
Wednesday, April 18, 2018 | 5:30-7:30pm Sinclair Community College Library Rm 7L21 130 W. Second St.
featuring::./,
Judge Michael Merz
The Honorable Michael Merz, Federal Judge for the Southern District of Ohio, will be speaking on the topic, "Domestic Violence". Judge Merz has heard many death penalt habeas petitions and will be speaking on such cases. Come listen to Judge Merz share his experience and insights. *Snack will be provided. April 2018 Dayton Bar Briefs
23
FROM THE JUDGES DESK
Mental Illness and Criminal Justice in Our Community T
M M
any adults who suffer from mental illness do not receive the treatment they need. According to recent data, 44.7 million adults experienced some form of mental illness in 2016.i Of those individuals, nearly 10 million were living with a serious mental illness (SMI).ii With the opioid crisis at its peak, it comes as no surprise that a substantial portion of adults who struggle with mental illness also struggle with substance use disorders.iii Overall, 8.2 million adults reported co-occurring mental health and substance use disorders this past year.iv The reality is that less than half of individuals suffering from mental illness, of any kind, receive treatment.v Consequently, many of these individuals become involved in the criminal justice system, ending up in jail rather than in treatment. Meanwhile, their mental health symptoms remain unstable. As a community, we can do more to change the way we treat our mentally ill population. You might be surprised to learn that many of those who suffer from mental illness do not receive treatment unless they are in jail. The National Alliance on Mental Illness (NAMI) estimates that nearly 2 million individuals with mental illness are booked into jail each year.vi Approximately 15 percent of men booked into jail have an SMI. For the female population, this number is nearly double.vii These individuals come into contact with law enforcement as a result of their mental illness and end up in jail rather than in crisis stabilization or longterm treatment. Once released, the cycle of reoffending continues, often for failing to stabilize their mental health symptoms and/ or self-medicating through illicit drug use. Whether attributed to the closure of psychiatric facilities or to the opioid epidemic, or both, the mentally ill in our jails and prisons is a growing public health issue that requires
24
Dayton Bar Briefs April 2018
By Hon. Gregory F. Singer Montgomery County Common Pleas Court, General Division
collaboration and action in our communities. While the issue is not necessarily a lack of resources in this regard, it is that many resources are underutilized. With the underutilization of available resources, the mental health treatment community is affected, at best, in two ways: first, because we, as a society, do not value our mentally ill population as deserving of full health services (e.g., Medicaid/Medicare limitations on mental health treatment), these services are typically only available to the more affluent; and second, for the same reasons, treatment providers tend to be attracted to the more lucrative areas of medicine. Although a wide array of mental health services may be available, they are not readily obtainable by the vast majority of this population. In an effort to promote access to mental health resources, and to, ultimately, break the cycle of recidivism, the Montgomery County Common Pleas Mental Health Court (MHC) was created. Receiving its initial certification from the Ohio Supreme Court in December 2017, the MHC is a specialized docket program offering targeted treatment for felony offenders who have been diagnosed with an SMI. The MHC is designed to improve access to treatment among the mentally ill and those with co-occurring disorders, eradicate homelessness, establish medication compliance and stability of mental health symptoms, and reduce recidivism. The MHC provides offenders with access to trauma-informed, gender-responsive, and culturally-aware treatment, connecting participants with the resources necessary to stabilize and manage their mental health symptoms on both an immediate and a long-term scale. Offenders will participate in the program for an average duration of eighteen to twenty-four months,
although some will be longer depending on their treatment progress. Through community collaboration, without which the MHC would not exist, the MHC and its treatment team are able to promptly connect participants to various agencies and treatment programs throughout Montgomery County. For this population, homelessness and substance use disorders are common challenges. The MHC offers resources for those with co-occurring disorders, including assistance with medication management. The program also assists participants with obtaining employment and/or disability benefits and, eventually, permanent housing. No participant will graduate from the program without having an individualized
continued on page 25 Endnotes: SAMHSA Shares Latest Behavioral Health Date, Including Opioid Misuse, SAMHSA News (Oct. 2017), https://newsletter.samhsa. gov/2017/10/12/samhsa-new-data-mentalhealth-substance-use-including-opioids/. ii Mental Health By The Numbers, NAMI, https:// www.nami.org/learn-more/mental-health-bythe-numbers. iii SAMHSA Shares Latest Behavioral Health Date, Including Opioid Misuse, SAMHSA News (Oct. 2017), https://newsletter.samhsa. gov/2017/10/12/samhsa-new-data-mentalhealth-substance-use-including-opioids/. iv Id. v Mental Illness Statistics, National Institute of Mental Health, https://www.nimh.nih.gov/ health/statistics/mental-illness.shtml. vi Jailing People with Mental Illness, National Alliance on Mental Illness, https://www.nami. org/Learn-More/Mental-Health-Public-Policy/ Jailing-People-with-Mental-Illness. vii Id. i
937.222.7902
FROM THE JUDGES DESK: Mental Illness and Criminal Justice in Our Community continued from page 24 treatment plan in place to ensure continued care beyond his or her time in MHC. By addressing participants’ immediate mental and overall health needs, the MHC strives to prevent any future involvement with law enforcement, which is crucial to each participant’s continued success. Despite the MHC’s efforts to connect participants to treatment and establish longterm treatment plans, a significant portion of the mentally ill population requires immediate crisis stabilization services before a long-term treatment plan can be successfully implemented. The demand for crisis stabilization services, particularly in Montgomery County, has never been greater. For instance, on February 27, 2018, 57 inmates in the Montgomery County Jail were actively detoxing, the highest number reported this year. By necessity, our local jail has evolved into a crisis center. Once in jail, the mentally ill further decompensate. They fail to report their need for mental health treatment and, once released, they fail to seek continued treatment.
www.daybar.org
For example, the Montgomery County Sheriff ’s Office reported that, of the 24,435 inmates booked into Montgomery County Jail in 2017, 4,739 individuals reported having a mental illness for which they received treatment. Notably, this number only accounts for those who reported treatment for their mental illness. In actuality, many inmates fail to report their need for mental health treatment, or fail to disclose their mental illness, upon being booked into jail. Of the 4,739 inmates who reported a mental illness in 2017, only 280 requested to be linked to aftercare upon their release. Efforts on both national and local levels are being made to address this growing public health issue. Nationally led efforts, such as the Stepping Up Initiative, are crucial to changing the way law enforcement and the mentally ill interact. For those who are unfamiliar, the Stepping Up initiative seeks to divert individuals suffering from mental illness from jail and into immediate treatment. On a localized scale, the Stepping Up Initiative in Montgomery County is an alliance of community partnerships working together to reduce the mentally ill population in the Montgomery County Jail. By utilizing the sequential intercept model, the objective is to “intercept” individuals suffering from a mental illness early on following
an encounter with law enforcement. This, in turn, will prevent these individuals from cycling through the County jail by getting them into immediate crisis stabilization and treatment. Local organizations, such as the Castle in Centerville, the Crisis Intervention Round Table led by Detective Patty Tackett, and the Goodwill Easter Seals Miracle Clubhouse—only to name a few—are also making strides in changing how we treat our mentally ill. Initiatives like these, and many others, are vital for this population. Contrary to popular belief, jailing those who are struggling to stabilize their mental health symptoms does not protect the public. With some exceptions, many mentally ill individuals in jail are non-violent.viii Our courts and local agencies are working hard to change the way we treat our mentally ill and how we utilize available mental health resources, which will only strengthen our community for years to come. I look forward to seeing these initiatives, and many others like it, succeed in our community. (Elizabeth Otis, Esq., contributed to this article.) Endnotes: Id.
viii
April 2018 Dayton Bar Briefs
25
PARALEGAL COMMITTEE
The Paralegal Profession: Sharing the Music PP
resident Lincoln said, “with firmness for the right as God gives us to see the right, let us strive on to finish the work we are in.” For most of my life I thought my “right” was to be an attorney. I earned my BA in History and was to go on to law school. However, life, with its twists and turns, often surprises us. Law school eluded me for various reasons, not the least of which was monetary. However, one night in July 2014, after much thought, I decided to pursue a paralegal degree. During this time, I experienced an overwhelming transformation of my perception of success. So why do I love my profession so much and how does it offer me fulfillment? I think to best answer such a question, it is necessary to define and offer the history of the profession. The American Bar Association defines a paralegal as “…a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.”1 The paralegal profession is rather young finding recognition in 1967 when the American Bar Association began to “endorse the use of paralegals”.2 In 1975, the ABA set the first educational guidelines for paralegals.3 Today these guidelines require exposure to multiple areas of law and their particular logistical needs by teaching substantive law and procedure. A graduate of such a program is equipped to conduct client and witness interviews, draft pleadings and motions, perform legal research, organize and analyze discovery and prepare a trial notebook as well as many other tasks. Essentially, a paralegal is qualified to do the same tasks as an attorney save the following: • A paralegal cannot represent a client in court. • A paralegal cannot establish an attorney-client relationship and must insure the client knows they are a paralegal and not an attorney. • A paralegal cannot set fees.
26
Dayton Bar Briefs April 2018
• A paralegal cannot give legal advice. • A paralegal cannot sign pleadings, motions or other court documents. Although these limitations exist, paralegals can provide significant benefits to a law firm. The use of paralegals can reduce costs and create more revenue for the firm as the hourly rate set for paralegals is significantly less than that of attorneys. This appeals greatly to clients as their legal fees can be reduced, which in turn often enables them to continue to pursue their legal matter. It also allows for growth in a firm’s client base
By Sharalie Albanese Chair, Paralegal Committee
gals. The Dayton Bar Association Paralegal Committee, for example, offers meetings where paralegals can network and be armed with resources to enhance their skills. As paralegals are often tasked with the logistical aspects of the firm, they need resources that enable them to find correct answers quickly. Having a network of paralegals offers a plethora of experience and knowledge that is beneficial to not only the personal success of the paralegal, but also the success of the law firm. By encouraging participation in such organizations, the firm recognizes their paralegal’s contributions are indispensable while also nurturing the paralegal’s career. We often yearn for what we do not really wish to obtain. I thought I longed to be an attorney; however, what I truly longed for was to help people. This is true for many paralegals as well as attorneys. Oliver Wendall Holmes once said, “Many people die with their music still in them. Why is this so? Too often it is because they are always getting ready to live. Before they know it, time runs out.” For me, as for many others, pursuing a career as a paralegal shares that music I hold inside me. Endnotes: https://www.americanbar.org/groups/paralegals/ resources/current_aba_definition_of_legal_assistant_paralegal.html 2 How is the American Bar Association involved with the paralegal field? https://www.americanbar.org/ groups/paralegals/resources/information_for_lawyers_how_paralegals_can_improve_your_practice. html 3 Id. 4 https://www.americanbar.org/groups/probono_public_service/resources/pro_bono_role/paralegals. html 1
as paralegals can manage caseloads, with the supervision of their attorney, and prepare cases for trial, which in turn enables the firm to take on more clients. The use of paralegals can also promote taking more pro bono cases.4 As paralegals can manage caseloads, they are a benefit when doing pro bono work. This allows the firm to perform this assistance without overburdening the attorney. This also encourages community involvement. As attorneys, most understand that networking in the legal field is beneficial to gaining success. This is also true for parale-
937.222.7902
www.daybar.org
April 2018 Dayton Bar Briefs
27
law-related organizations Dayton Bar Association Foundation
Your generous gift will make a difference.
The Dayton Bar Association Foundation is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBA Foundation to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants from the DBA Foundation to:
To obtain more information about the Dayton Bar Association Foundation
Write, Call or Email: Sally Dunker, Executive Director Dayton Bar Association Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: sdunker@daybar.org
- Greater Dayton Volunteer Lawyers Project - Advocates for Basic Legal Equality (ABLE) - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Law & Leadership Institute - Tejas K-12 Gallery - NCCJ Police and Youth Camp - Wills For Heroes
University of Dayton School of Law
28
Dayton Bar Briefs April 2018
Greater Dayton Volunteer Lawyers Project
I Have No Business Being Here…. or Do I? Volunteering at a GDVLP Clinic
W
hile I am familiar with the basics of the Fair Debt Collection Practices Act, by no means would I consider myself an expert on it. So, I was reluctant to volunteer at a debt collection clinic with the Greater Dayton Volunteer Lawyers Project. Truthfully, “reluctant” is an understatement. My actual thought was, “I have no business being in a debt collection clinic.” I had the same feeling when I learned that GDVLP had a juvenile law pro se clinic. What could I contribute? Turns out, I could contribute quite a bit. GDVLP, in a strong collaboration with Sebaly, Shillito + Dyer, has been holding juvenile law pro se clinics for about five years now, assisting individuals with custody, support, and visitation matters. About three years ago, GDVLP started holding “triage” clinics for individuals facing debt collection issues, determining whether bankruptcy, pro se pleadings, or other options were best to assist the client. GDVLP also hosts clinics, in strong collaboration with Wilmer Hale, to seal criminal records and assist with post-decree divorce matters, like modification, and contempt. There are now monthly clinics in each of these subject matter areas. With the clinics scheduled in advance, I was able to plan when I could fit volunteerism into my calendar. I also knew that my time commitment was only for two hours on those evenings. To prepare for the debt collections clinic, I watched a training video on YouTube designed specifically for this clinic and delivered by an attorney expert in debt collection practices. The training video addressed the legal issues most likely to arise with the clients at the clinic. And at the clinic itself, I was reassured by the fact that an expert in FDCPA
By Lynn M. Reynolds Esq. Faruki Ireland Cox Rhinehart & Dusing PLL
was vetting the clinic attendees’ issues. If the attendees’ legal issues were more than basic, then the expert lawyer addressed them. When a client was sent to my table for advice, I was relieved to find that my basic understanding of the law was actually all that was required. To help a person completely unfamiliar with the legal process did not require in depth understanding of FDCPA. It only required the ability to write a good letter and explain next steps. Or the ability to help draft a pleading – a motion to dismiss or an answer –and GDVLP had forms and templates already set up. For the juvenile clinic, I didn’t get a chance to watch the video training but I was partnered with another lawyer who had experience. Once again, GDVLP had the necessary forms ready for us to use. We helped the clients understand the issues and complete forms necessary for the clients to seek custody of their grandchildren whose parents were deceased (heroin overdoses). My general legal background was sufficient. And, if I wasn’t sure about something, once again, an expert colleague was at the clinic to help. At the end of the clinic, not only had I helped the clients but I also helped the Juvenile Court run a tiny bit smoother because at least two people had their forms completed correctly and were prepared for their hearing. Pro bono, no matter your area of legal expertise, is made easy with GDVLP clinics. Not only are you able to plan your volunteerism in advance but you are also supported through training, mentoring, templates, forms and an accessible expert, if anything is out of your comfort zone. Help at these clinics is always needed. If you are interested in volunteering at one of the GDVLP clinics, contact Tom at (937) 4613857 or Tom@gdvlp.org.
Upcoming GDVLP Clinic Dates: April Apr 3: Post-Divorce Pro Se Clinic @ 4pm (GDVLP) Apr 17: Debt Collection Defense Clinic @ 3pm (GDVLP) Apr 19: Criminal Record Sealing Pro Se Clinic @ 10am (GDVLP) Apr 20: Juvenile Court Pro Se Clinic @ 1pm (Day Reporting Center) Apr 25: Juvenile Court Pro Se Clinic @ 4pm (GDVLP) May May 3: Post-Divorce Pro Se Clinic @ 2pm (GDVLP) May 14: Criminal Record Sealing Pro Se Clinic @ 4pm (GDVLP) May 15: Debt Collection Defense Clinic @ 3pm (GDVLP) May 23 Juvenile Court Pro Se Clinic @ 4pm(GDVLP) June June 6: Post-Divorce Pro Se Clinic @ 4pm (GDVLP) June 15: Juvenile Court Pro Se Clinic @ 1pm (Day Reporting Center) June 19: Debt Collection Defense Clinic @ 3pm (GDVLP) June 21: Criminal Record Sealing Pro Se Clinic @ 2pm (GDVLP) June 27: Juvenile Court Pro Se Clinic @ 2pm (GDVLP) www.daybar.org
April 2018 Dayton Bar Briefs
29
members on the move If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received a promotion or award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed Bar Association at no cost, and must be submitted via email and are subject to editing. Also, please send a current, high-resolution, directory-style photo to accompany your announcement. These accouncements are printed as space is available. Send to DBA Communication Manager, Shayla M. Eggleton: publications@daybar.org.
DAYTON
Taft Stettinius & Hollister LLP is pleased to announce that the firm has named its 2018 executive committee. The committee consists of 12 members. Dayton Partner JENNIFER HANN HARRISON represents employers in a broad range of employment and workers’ compensation matters, and she leads the Workers’ Compensation practice in Dayton. In addition, she serves as outside general counsel to closely held corporations, HANN HARRISON partnerships and limited liability companies. An experienced litigator, Jennifer has successfully defended numerous cases before juries and to the bench. She regularly appears before administrative agencies, the Courts of Common Pleas, Ohio Appellate Courts and the Ohio Supreme Court. She served on a Senate task force that was convened in 2009 to study privatization of the Ohio Workers’ Compensation System.
Faruki Ireland Cox Rhinehart & Dusing PLL is pleased to welcome their newest attorney, LYNN M. REYNOLDS, who will join the firm as Of Counsel and focus her practice on employment and corporate compliance counseling. She brings the unique perspective of having worked within organizations as both an advisor and client. Formerly Vice President and Head of Legal at LexisNexis, Reynolds was responsible for the legal affairs of the REYNOLDS business divisions operating in the US and Canada. More recently, Reynolds has been assisting clients with education and training relating to harassment and conducting workplace investigations involving the C-suite.
DUNLAP SIEKMAN
Freund, Freeze & Arnold welcomes its newest attorney RACHEL DUNLAP SIEKMAN to its Cincinnati office. Ms. Siekman focuses her practice on the defense of general tort claims, premise liability, insurance coverage, and workers’ compensation. She has years of litigation experience, representing plaintiffs and defendants, individuals and businesses, in Ohio, Kentucky, and Indiana. Ms. Siekman bolsters the firm’s litigation practice and presence in the tristate area.
INCREASE YOUR VISIBILITY!
contact Shayla about DBA Advertising opportunities: publications@daybar.org 937.222.7902
30
Dayton Bar Briefs April 2018
classifieds For info concerning Classified Ad and Display Ad Space in the Dayton Bar Briefs or any other DBA Publication, contact DBA Communications Manager, Shayla M. Eggleton: publications@daybar.org or 937.222.7902. Discount Rates available for consecutive and/ or combined Online + Display + Classified advertising!
LOCAL COURT RULES
Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at http://www. daytonmunicipalcourt.org/ for notice of and an opportunity to view and comment on proposed local court rules.
MEDIATION/ARBITRATION
William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com
OFFICE SHARE SPACE AVAILABLE
Established downtown, AV rated, law office near Courthouse has space available for one to two lawyers and support staff. Only applicants with an established practice will be considered. Potential for referrals. Send inquiries to info@dayton-lawyers. net.
OFFICE SPACE
1204 East Dorothy Lane: Four offices available at $500/month/ office. Furnished or unfurnished. Take one, two, three or four offices. Rent includes all utilities, two remodeled baths, secretarial area, reception area, conference room; about 2400 sq. ft. Email dave@SchmidtDayton.com for info and pics.
OFFICE SPACE FOR LEASE
Professional office space for lease on South Dixie, south of Dorothy Lane. Great location, convenient parking, large conference room, generous lease terms, other amenities. Offices are about 120 sq ft in size, starting at $400.00 per month. Contact Greg at (937) 294-2468 x205 or greg@ranac.com.
advertiser index ComDoc Inc......................................13 Courtside Offices.............................10 Eikenbary Trust...............................21 Ferneding Insurance......................27 LCNB Bank........................................25
National Processing Solutions.......5 OBLIC.................................back cover R.L. Emmons & Associates.............11 Rogers McNay Insurance...............11 Trisha M. Duff - Mediations.............7
937.222.7902
DBA ANNUAL PARTNERS Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.
PLATINUM PARTNERS Jack W. and Sally D. Eichelberger Foundation
Eichelberger, longtime Oakwood residents to enhance the legal profession, the arts and the Greater Dayton community through the awarding of grants. Jack Eichelberger was a well-known Dayton attorney and real estate investor. Trustees: Dave Greer, Gary Froelich and Neal Zimmers.
Eichelberger Foundation Estabrook Charitable Trust
Estabrook Charitable Trust Administered by Porter Wright Morris & Arthur LLP | Bruce Snyder - Trustee Annual Grants to the DBA (This support makes these events affordable for all members): • Bench Bar Conference • Diversity Day • Annual Meeting
Faruki Ireland Cox Rhinehart & Dusing P.L.L. www.ficlaw.com With offices in Cincinnati & Dayton Faruki Ireland Cox Rhinehart & Dusing P.L.L. is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.
GOLD PARTNER Thompson Hine LLP www.thompsonhine.com Established in 1911, Thompson Hine is a business law firm dedicated to providing superior client service. The firm has been recognized for ten consecutive years as a top law firm in the country for client service excellence in The BTI Client Service A-Team: Survey of Law Firm Client Service Performance. With offices in Atlanta, Cincinnati, Cleveland, Columbus, Dayton, New York and Washington, D.C., Thompson Hine serves a premier business worldwide.
www.daybar.org
er!
rtn l Pa
ua Ann A 2 B a D 22.790 e 7.2 com o be rg | 93 t r e .o unk aybar D d y l Sal er@ April 2018 Dayton Bar Briefs act sdunk t n Co
31
Dayton Bar Association 600 Performance Place 109 N. Main St. Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED
PRSRT STD U.S. POSTAGE PAID Permit No. 41 DAYTON, OHIO