February 2019 Dayton Bar Briefs Magazine by Dayton Bar Association

The Magazine of the Dayton Bar Association | February 2019 | Vol. 68, No. 6

Dayton

Bar Briefs

happy valentines day Barrister of the Month Peter F. von Meister Esq. pg 6

Rising Stars Mike Dailey & Alysia Goss pg 10

Diversity Issues Thurgood Marshall: The Birth of a Real World Superhero pg 12

CONTENTS

Dayton

Bar Briefs

February 2019 | Vol. 68, No. 6

Dayton Bar Association Board of Trustees 2018 – 2019

David P. Pierce President

Hon. Mary L. Wiseman First Vice President

Fredric L. Young

Second Vice President

Cara W. Powers Secretary

Brandon C. McClain Treasurer

Cassandra L. Andres Rice Member–at–Large

Caroline H. Gentry Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber Member–at–Large

Brian L. Wildermuth 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

Features 4 TRUSTEE'S MESSAGE Durable Power of Attorney By Adam R. Webber Esq. 6

BARRISTER OF THE MONTH: PETER F. VONMEISTER ESQ.

By Christina M. Spencer Esq.

APPELLATE COURT PRACTICE It's a Privilege to Appeal

By Anne P. Keeton Esq. & Susan D. Solle Esq.

10 DBA RISING STARS: MICHAEL P. DAILEY & ALYSIA A. GOSS By Zachary S. Heck Esq. 12 DIVERSITY ISSUES Thurgood Marshall: The Birth of a Real World Superhero

By Brandon C. McClain, Recorder

14 GET TO KNOW Newly Elected Judge Helen Wallace

By The Honorable Gerald Parker

Preserving Trial Advocacy

By Glen R. McMurry Esq.

20 FROM THE JUDGES DESK

Judge Langer's Criminal Law Top 10 List

By The Honorable Dennis J. Langer

Departments 16 CONTINUING LEGAL EDUCATION 23 CLASSIFIEDS 23 FEBRUARY COMMITTEE MEETINGS Upcoming Events 17 2019 PROBATE LAW INSTITUTE Fri. March 1st | 8:30am - 4:30pm | Sinclair Community College, Bldg 12

Sally Dunker, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308

21 2019 PARALEGAL DAY CELEBRATION Thurs. April 18th | 11:30am - 1:00pm | Sinclair Community College, Bldg 7; Rm 7-006 ABC

The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.

25 2019 IMPORTANT DBA SAVE THE DATES Visit us online at www.daybar.org/events for up-to-date details!

Dayton Bar Briefs February 2019

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February 2019 Dayton Bar Briefs

Trustee's Message

Durable Power of Attorney By Adam R. Webber Esq. DBA Member-at-Large Elliott, Faulkner & Webber

ike many of you, I fell asleep a few minutes after midnight on January 1st after watching crowds of enthused younger people sing “Auld Lang Syne.” I awoke the next morning full of hope for a new year, a fresh start, and a renewed belief that my fellow citizens and I can work toward a better world for us all. This sentiment of “malice toward none and charity for all” lasted a whole day. Then, on January 2nd, the following occurs: a daughter of a long-time estate planning client comes into our office. The client had been a lovely lady, the perfect sort of client who was polite and kind, elegant and funny, grateful for the work you did for her, and one who, when paying your modest bills, asked, “Are you sure that’s enough?” A few months ago, the daughter had to move her mother to a memory care unit due to dementia, and she began to pay mother’s bills. She now wanted to move her mother’s checking account to her preferred bank, rather than the inconveniently-located bank her mother had used. This is fair enough. So daughter presented her mother’s durable financial power-ofattorney (prepared by us) to mother’s bank, which listed daughter and another child as co-agents, the bank manager refused to honor it. (One cannot help but wonder whether the bank’s view of the power of attorney would have been different if daughter had wanted to endorse and deposit a large check rather than close the account.) At daughter’s request, we queried the bank manager as to why he had refused the power of attorney. The reply? “As a matter of bank policy we do not honor powers of attorney with more than one agent listed.” Oh no? We directed the bank manager to R.C. § 1337.31(A) which states that a person may designate two or more persons to act as

Dayton Bar Briefs February 2019

co-agents in a power of attorney. The bank manager said he would “look into” that. When we followed up a few days later, new “problems” with the power of attorney had been found by the bank. Now, the bank manager said, the power of attorney would not be honored because the account holder was not competent and could not consent to daughter closing the account. Also, the bank manager said, because the POA was four years old they could not be sure that it “had not been revoked by now.” When we tried to explain that this was a “durable” power of attorney and that powers of attorney do not typically expire with the passage of time or subsequent incapacity, the impasse continued. To be ignorant of one’s ignorance . . . of course . . . is the curse of the ignorant. But why should our client have to incur expense to press the issue? In late 2011, Ohio adopted much of the Uniform Power of Attorney Act. Among much else, Ohio law now provides a statutory format that incorporates broad powers for powers of attorney by reference to the statute, which eliminates the need to recite all of the powers granted by the document in tedious detail. But Ohio specifically did not adopt the provision of the Uniform Power of Attorney Act that imposes liability on persons or institutions that refuse to honor a valid power of attorney. The UPAA’s model statute imposes liability for reasonable attorney fees on a person or institution “incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.” In other words, if the bank manager refuses a legitimate power of attorney, and you have to go to court to get a declaratory judgment or other order confirm-

ing the document’s validity and enumerated powers, the bank will pay your attorney fees. In the last Ohio legislative session, H.B. 446 was introduced which would have incorporated this liability. The proposed law would permit persons or institutions to refuse a power of attorney only if: • The person has actual knowledge of the termination of the agent's authority or of the power of attorney; • The person in good faith believes that the transaction is outside the scope of the authority granted to the agent in the power of attorney; or • The person in good faith believes that the power of attorney is not valid. H.B. 446 also states that one who refuses a valid power of attorney is subject to both: (1) A court order mandating the acceptance of the power of attorney; and (2) Liability for reasonable attorneys' fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney. H.B. 466 appears to have languished in committee. But here’s hoping that H.B. 446 or something like it gets added to Ohio law soon. Until then, agents have very little leverage against institutions that refuse to honor legitimate powers of attorney without good cause. Post script: After we stopped grinding our teeth and began composing a sure-to-bedevastating “How dare you…” letter to the bank’s legal department, our elderly client died. The bank manager lives to fight another day. So in our client’s honor, we'll take a cup of kindness yet, for auld lang syne.

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DBA Endorses Andrew C. Storar Candidacy for OSBA President-Elect The DBA is pleased to announce their endorsement of longtime member and friend, Andrew C. Storar Esq., of the law firm Pickrel Schaeffer & Ebeling Co., LPA. Andrew will be running for OSBA President-Elect effective July 1, 2019. Andrew has distinguished himself in the legal profession through his dedicated leadership and service with the DBA, the DBA Foundation and the Ohio State Bar Association through membership in numerous committees. The Board of Trustees of the DBA endorses, Andrew C. Storar, a proven and trusted leader, as a candidate for the office of President-Elect of the Ohio State Bar Association. Read more about Andrewâ&#x20AC;&#x2122;s background and qualifications at: www.pselaw.com/attorneys/andrew-storar Be on the lookout for more details on where you can go to cast your vote for Andrew in May of 2019.

For DBA News, Press Releases & Announcements: daybar.org/news

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February 2019 Dayton Bar Briefs

Barrister of the Month

Peter F. vonMeister Esq.

awyers are, by their very nature, advisors. Of the multitude of responsibilities assumed by lawyers on any given day, perhaps that which emerges most prominently is the responsibility to give advice. Peter von Meister, a seasoned lawyer and shareholder with Green & Green, Lawyers, has remarkably demonstrated what it means to follow one’s own advice. “It’s easy to be a lawyer,” he said definitively. “To be a lawyer, you only need two things: ability and integrity.” Peter’s maxim of ability and integrity, while undoubtedly the cornerstone of his practice, is thematically woven throughout his career. “It’s really that simple,” he reiterated, “and this is what I tell young lawyers I mentor: you may not be the most capable lawyer, but if you ever skimp on integrity, you invite disaster.” Peter, a New Jersey native, was born in a German-speaking family. His father immigrated to the United States from Germany, and his mother, from Austria. Peter’s father was a successful industrialist and the role model that sparked Peter’s pursuit of the practice of law. (Peter was also frequently told as a child he was good at arguing and should be a lawyer.) Peter attended secondary school at a Catholic boarding school in Rhode Island, where he not only received a superior education, but also developed a fondness for the Midwest which led him to attend Knox College (Class of 1969) and thereafter the University of Cincinnati College of Law (Class of 1972). For Peter, going to law school was merely one possible post-graduate route. Given his

Dayton Bar Briefs February 2019

strong familial ties to the business world, he naturally gravitated toward business and law schools. He applied to, and was accepted into, both. In 1966, he enlisted in the Army Reserve ROTC program earning a commission in 1969 as a Second Lieutenant in the Infantry. Peter made a calculated business decision: the Army offered him an active duty deferment for graduate school: three years to complete a J.D., or two years to get an M.B.A. Facing probable deployment to Viet Nam, he opted to attend the University of Cincinnati College of Law and forego the University of Virginia Darden School of Business, where he had also been accepted. While at UC Law, Peter fell in love with Southwest Ohio; the Bengals were new, the Reds were hot, the Royals were cool, and becoming a litigator was the way to go. “My plan was to attend law school for three years, put in two years in the infantry, and go to business school,” he said. “But deep down inside, I knew I wanted to try cases—in Cincinnati.” After taking the bar exam, Peter went to Fort Benning, Georgia to complete his active duty commitment with the Army. In November 1972, while he was still on active duty, he flew himself to Columbus to be sworn in as a new attorney, then flew back to Fort Benning that evening. By then the Army had offered to reduce his two year commitment to “time served” if Peter would agree to an additional two years in the Reserves. That was an easy decision, and the week before Christmas, he flew

himself back to Cincinnati. On Monday, February 5, 1973, Peter started his first day as a practicing attorney with the Cincinnati litigation firm McIntosh, McIntosh & Knabe. Three weeks later, he tried his first case—and won. It was very early in his career that the principles of ability and integrity emerged as Peter’s foundational requirements for the practice of law. “I vividly remember and will be eternally grateful to the judges and seasoned lawyers who helped me grow up.” Peter stayed with the McIntosh firm until February 1977, when he moved to Virginia to become licensed there and in the District of Columbia. He quickly became involved with several telecommunications venture capital projects developed by his older brother. After five years in Virginia, Peter decided to return to Ohio to accept an offer from NCR Corporation for a Senior Commercial and Litigation attorney position. Not long after, one of the early projects (Control Video Corporation) was sold off and put under the capable management of a former employee by the name of Steve Case. It’s now known as AOL. “I didn’t want to remain practicing in D.C. and Virginia. I missed Southwest Ohio,” he said. NCR gave Peter the opportunity to litigate and arbitrate cases all over the country, but the most satisfying projects were developing and writing NCR’s data processing sales, service, and software support contracts for some of the country’s best known brands including Walmart, FedEx, continued on page 7

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BARRISTER OF THE MONTH: Peter F. vonMeister Esq. continued from page 6 Eastern Airlines, F.W. Woolworth, Holiday Inn, and A&P to name a few. “I learned a lot working for NCR,” Peter remembers, “but when I was reprimanded for advising a senior vice president that a particularly lucrative contract that had been developed without counsel was in violation of federal law and would likely result in NCR’s disqualification from its federal and military approved-vendor status, I knew the time had come to move on.” In 1986 Peter was introduced by a close friend to Green & Green, which was looking for an experienced litigator with business and commercial experience, and a handshake soon sealed the deal. But weeks before Peter’s planned start date, Tom Green “Senior” called to ask if Peter could “pinch hit” and try a jury case. And he did—after asking directions to the courthouse. After two days of trial and a twenty-minute deliberation, the jury returned a defense verdict for Peter’s client. “This was a case that I had been told was indefensible. When I got back to the office, ‘Senior’ promptly picked up the phone and called the bailiff because he didn’t believe me. I had the last laugh. Thirty-three years later I still do.” When questioned about the time Peter put into preparing for a trial that was “indefensible,” he simply replied, “sometimes, you have to put more time into a small but difficult case to help out a client who needs it.” For Peter, the favorite thing about being an attorney is “to accomplish what is right under the law.” The value that Peter places on the principle of integrity is apparent in his accounts of various “Perry Mason” moments he has encountered throughout his career. As plaintiff ’s counsel in a civil lawsuit against a defendant-employee accused of embezzling, Peter cross-examined the defendant, telling her his client believed she had embezzled $300,000.00, a figure Peter knew to be conservative. Apparently feeling diminished, the defendant snapped back, “NO! IT WAS $340,000.00!” The good judge politely but firmly denied her request to withdraw her answer. In another case, Peter represented a plaintiff who was severely injured in an explosion at work. It appeared that the employer had disconnected the alarms that were to warn employees when flammable vapors in the adhesives mixing area reached explosive concentrations. www.daybar.org

During the Saturday morning deposition of the employer’s Plant Safety Engineer at Peter’s office, and unbeknownst to him, the Dayton Fire Department conducted a test of the building’s fire alarm, complete with klaxon horns, sirens, and strobe lights. When all of them went off simultaneously, the Safety Engineer frantically tried to gather his documents and rose to exit the room, shouting (still on the record), “THE FIRE ALARM IS GOING OFF! WE NEED TO EVACUATE!” Peter calmly asked him, “So, why wasn’t it like this when an explosion was about to occur at your plant?” Peter recollects the Safety Engineer quickly excusing himself to visit the restroom. And during a jury view of a Miami County golf course where Peter’s client suffered a severe leg fracture after falling into a concealed hole, after the defense opening statement that “nobody ever hits a ball that far off the fairway,” a juror shrieked while looking into the hole. As the bailiffs and other jurors spun around, they saw a golf ball—just hit from the tee—bounce between her feet. The jury didn’t take long to deliver a substantial verdict for Peter’s client. Reflecting on these so-called “Perry Mason” moments, Peter concluded that justice actually does prevail when pursued diligently and vigorously. As the golf-playing client observed, “Good things happen to good people!” “But good things don’t always happen when we need them most,” Peter reminds himself, “but trying less than your best isn’t an option.” Peter’s history of practice is extensive, as he has been heavily focused on business, commercial, financial, securities regulation, employment, construction, fire and explosion (he thanks his Ft. Benning training), real estate, company and corporation acquisitions, motor vehicle dealerships, complex transactions, professional malpractice, and litigation in these areas, including class actions. Today, Peter’s “docket” focuses principally on succession acquisitions for small business owners and litigating fiduciary malfeasance cases. Similarly extensive is Peter’s list of hobbies. Throughout the 1970s and early 80s, Peter was a licensed pilot. He also used to frequently participate in watersports such as scuba diving, snorkeling, spearfishing, and waterskiing. Today, Peter enjoys cycling (both on a bicycle and a motorcycle), as well as fly-fishing and pheasant hunt-

ing. There can be no doubt that Peter is an avid outdoorsman. He makes annual trips to Wyoming where he stays on a working ranch, working the fall cattle roundup and sorting cows, and fishing Wyoming’s incredible rivers and lakes for cutthroat and rainbow trout. Peter’s fondness for Wyoming is no less illustrative of the very principles of ability and integrity he believes are so important to the practice of law. Peter was introduced to the ranch by his late wife, Patty, who was an accomplished horse rider from Louisville, Kentucky. Because Patty had such an affection for horses, Peter quickly developed riding skills not only to ride a horse, but to ride a horse in open country so he could join his bride in the activity she so loved. Peter and Patty traveled to the ranch together for 21 years. In 2016, Peter made the trip to spread her ashes along her favorite mountain. In nature, there can be no purer form of integrity, for this is the place man is reduced to his truest self. To date, Peter still makes the trip in his bride’s honor. This year will be his 24th year at the ranch. Peter von Meister has, without a doubt, led an interesting and wildly successful legal career, built on the principles of ability and integrity. He has demonstrated the same devotion to those principles in his life outside of the practice of law. The UC Law student who fell in love with Southwest Ohio, and subsequently chose to make it his home and workplace, has gifted us with his dedication to clients, community, and the justice system. He deeply thanks all of you for making the Dayton legal community so great and providing such a rich career.

By Christina M. Spencer Esq. DBA Editorial Board Hollingsworth & Washington

February 2019 Dayton Bar Briefs

Appellate Court Practice

It's a Privilege to Appeal By Co-Chairs of DBA Appellate Court Practice: Anne P. Keeton Esq. Freund, Freeze & Arnold, LPA Susan D. Solle Esq. Dinsmore & Shohl, LLP

T T

his, the first installment from the Appellate Practice Committee in 2019, comes to you on the heels of a question posed to us by a young, aspiring lawyer. New, and grappling with which of her judge’s decisions could or could not be appealed, she posed the question, “What is a final, appealable order?” And so, Dear Readers, you have the piece before you, drafted over cups of coffee spiked with eggnog1, and the sounds of holiday cheer clamoring in the background. Our Young Lawyer asks a very good question. Article IV, Section 3(B)(2) of the Ohio Constitution confers jurisdiction on the appellate courts: “Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final order of the courts of record inferior to the court of appeals within the district….” Appellate courts have jurisdiction only over those decisions that are final and must therefore address, sua sponte, whether an order is final and appealable. Brahm v. DHSC, LLC, 5th Dist. Stark No. 2015CA00172, 2016-Ohio-1206, ¶18, citing State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544 (1997). Yet however good our Young Lawyer’s question may be, with holiday cheer still in our hearts and the new year upon us, we can hardly resist offering the response attorneys use so often with their clients: “It depends.” Because, well, whether a decision is final and appealable depends on the decision. Revised Code Section 2505.02 governs final, appealable orders. R.C. 2505.02(B) sets forth seven scenarios where an order is deemed final and appealable. We choose, as is our wont, to narrowly focus this piece on the appeal of decisions affecting production of privileged material so as to return more readily to the task of ringing in the new year. We therefore direct your attention, Dear Reader, to R.C. 2505.02(B)(4): (4) An order that grants or denies a provisional remedy and … both of the following apply: (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.

Dayton Bar Briefs February 2019

R.C. 2505.02(B)(4)(b) seeks to weigh the need for an immediate appeal against the harms of piecemeal litigation. A “provisional remedy” is a “proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, [or] suppression of evidence.” R.C. 2505.02(A)(3). Ancillary proceedings not specifically enumerated in R.C. 2505.02(A)(3) may still be treated as a provisional remedy. State v. Muncie, 91 Ohio St.3d 440 (2001). The provisional remedy perhaps most often encountered involves the discovery of a privileged matter. Discovery of a privileged matter is a “provisional remedy” under R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480. Thus, where a privilege is involved, what might otherwise be an interlocutory decision may well be a final, appealable order. The party seeking review of such a decision bears the burden of proving that decision is final and appealable. Chen, ¶8 (the burden “falls on the party who knocks on the court house doors asking for interlocutory relief ”). The appellant must prove both subparts of R.C. 2505.02(B)(4) to open the appellate courtroom doors. Having said that, opening those doors where privilege is concerned is not terribly difficult. Where material is alleged to be privileged, a decision compelling production or disclosure, though interlocutory, is appealable. Heinrichs v. 365 Registry, Inc., 10th Dist. Franklin No. 13AP-361, 2013-Ohio-4161, ¶15, citing Miles-McClellan Constr. Co., Inc. v. Westerville City School Bd. of Edn., 10th Dist. Franklin No. 05AP-1112, 2006 Ohio 3439, ¶8. “[A]ppellate courts have reasoned that as long as an appellant presents a ‘colorable claim’ that the documents subject to a discovery order are privileged and/or confidential, the proceeding that resulted in that order qualifies as a ‘provisional remedy.’” Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio6195, ¶35 (10th Dist.). The allegation of privilege is sufficient to meet the “provisional remedy” requirements of R.C. 2505.02(A)(3) and (B)(4). Heinrichs, at ¶16. But the inquiry does not end there as there are many categories of privilege addressed by Ohio courts. continued on page 9 ENDNOTES: Apologies for the footnote. To be clear, the eggnog was not spiked. Rather, the coffee was spiked with unspiked eggnog. Disappointing, we know.

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APPELLATE COURT PRACTICE: It's a Privilege to Appeal continued from page 8

We’ll begin with the attorney-client privilege. “[A]n order requiring the production of information protected by the attorneyclient privilege causes harm and prejudice that inherently cannot be meaningfully or effectively remedied by a later appeal. Thus, a discovery order that is alleged to breach the confidentiality guaranteed by the attorney-client privilege satisfies R.C. 2505.02(B)(4)(b) and is a final, appealable order….” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 356 (2016). Easy enough. The more difficult question is whether a decision ordering production of attorney work product is immediately appealable. Dearest of Readers, we encourage you to read Burnham for yourself, along with the Supreme Court of Ohio’s ruling in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, because the law is less than settled. In Chen, the trial court ordered production of a surveillance video prepared for impeachment purposes. The Supreme Court eventually dismissed Chen for want of a final, appealable order. The decision in Chen led to a split in appellate districts, a split which the Supreme Court sought to clarify in Burnham. The Burnham decision yielded a majority in judgment only, with three justices joining the lead opinion and three justices joining the concurrence. Justice Pfeifer’s dissent rounds out the guest list. The result is a spirited debate as to the merits of Chen and the protections afforded attorney work product. The lead opinion limits Chen to its facts and holds that “[o]ther discovery protections that do not involve common-law, constitutional, or statutory guarantees of confidentiality, such as the attorney-work product doctrine, may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere statement that the matter is privileged.” Burnham, 151 Ohio St.3d at 356. Arguing that the attorney work product doctrine finds its roots in common law and often exceeds the protections of Civ. R. 26(B)(3), the concurring Justices would overrule Chen and hold that “an order requiring the release of privileged documents, whether protected by the attorneyclient privilege or work-product doctrine, is a final appealable order….” Id., at 365. All of which leaves us, Dear Readers, with a headache and the prospect of having to prove that our clients are not afforded a meaningful or effective remedy by a later appeal when we are forced to turn over work product. A good time was had by all. An insurance carrier’s efforts in preparing a defense of its insured are also afforded the protections of the attorney-client privilege. When an insured reports to her insurance carrier and that report is later communicated to defense counsel, that report is privileged. “[W]here an insurer receives a report from its insured concerning a casualty covered by its policy of insurance, such report becomes the property of the insurer and subject to its complete control; and, when the insurer transmits it to its counsel for the purpose of preparing a defense against a possible lawsuit growing out of such casualty, such report constitutes a communication from client to attorney and is privileged against production and disclosure[.]” Schrolucke v. Auglaize Farmers Coop., Inc., 3rd Dist. Auglaize No. 2-05-26 and 2-05-27, 2006-Ohio-604, ¶6, quoting In re Klemann, 132 Ohio St. 187, 194 (1936). The attorney-client privilege protections extend to statements made to an insurer and insurance claim log notes included within the claims file. Id., citing Breech v. Turner, 127 Ohio App.3d 243, 250 (4th Dist. 1998). Statements taken by an insurer in preparation of a defense to a lawsuit are also protected by the attorney-client privilege under Ohio law. Hunter v. Wal-Mart Stores, Inc., 12th Dist. Clinton No. CA2001-10-035, 2002-Ohio-2604, ¶37. In Schrolucke, the trial court ordered production of claim log notes and witness statements. The defendant and insurance carrier immediately appealed, and the appeal was heard. Because the case did not involve a claim of bad www.daybar.org

faith, and prejudgment interest was not at play, the Third Appellate District found the documents privileged from production and reversed. In the insurance bad faith setting, breach of contract and bad faith claims are frequently bifurcated because determination of the breach of contract claim may very well determine the bad faith claim. In such cases, courts also stay discovery of the bad faith claim. Where a court fails to do so, “an order denying a stay of discovery with regard to attorney-client communications or work-product documents relating to a bad-faith denial-of-coverage claim meets the requirements of R.C. 2505.02(B)(4).” Devito v. Grange Mut. Cas. Co., 8th Dist. Cuyahoga No. 99393, 2013-Ohio-3435, ¶9. The Devito Court found an abuse of discretion where the trial court bifurcated the bad faith and breach of contract claims but refused to stay discovery on the bad faith claim pending determination of the breach of contract claim. “[T]he claims in the matter are interrelated and … allowing the discovery to proceed on the bad-faith claim would be prejudicial to [the carrier’s] defense on the other claims.” Id., at ¶11. Orders requiring production of physician-patient privileged information under R.C. 2317.02, where the privilege has not been waived, also constitute final, appealable orders. See Harvey v. Cincinnati Ins. Co., 2nd Dist. Montgomery No. 27470, 2017-Ohio-9226. “An order requiring the release of privileged information in discovery determines the action with respect to a provisional remedy and, because the privileged information has already been released, prevents the appealing party from obtaining an effective remedy following final judgment.” Id, at ¶6. The Harvey Court noted that, where privilege is involved, “the proverbial bell cannot be unrung.” Id., quoting Randall v. Cantwell Mach. Co., 10th Dist. Franklin No. 12AP-786, 2013-Ohio-2744, ¶7. Thus, an order requiring release of medical records that could lead to the production of privileged information is a final, appealable order. As we draw to a close, Dear Reader, we submit this caveat. Note that all of the decisions referenced above ordered production of the purportedly privileged materials. Where the court orders production to the party seeking discovery, the bell cannot be unrung, and the decision is final and appealable. Not so where the court orders production for an in camera inspection. Case in point: Daher v. Cuyahoga Cmty. College Dist., 2018-Ohio-4462 (Slip Op.). In Daher, a part-time police dispatcher who had been fired filed civil suit for employment discrimination and retaliation. After an associated criminal case against him was dismissed and the record sealed, the dispatcher amended suit to include a claim of malicious prosecution. The dispatcher issued a subpoena to the court reporter to turn over all transcripts, notes, and exhibits from the grand jury proceedings. The trial court held the court reporter’s motion to quash in abeyance, ordering the grand jury materials submitted for in camera inspection. The court reporter appealed and the Eighth Appellate District dismissed for want of a final, appealable order. The Supreme Court of Ohio granted a jurisdictional appeal. The Supreme Court found that the order for an in camera inspection was not a final appealable order because it failed to meet the threshold requirement of R.C. 2505.02(B)(4): “the disputed order must grant or deny a provisional remedy.” Id. at ¶10, emphasis in original. “In managing the progression of a case, a trial court has inherent authority to use in camera review as a tool to resolve discovery continued on page 13

February 2019 Dayton Bar Briefs

DBA Rising Stars

Mike Dailey & Alysia Goss O O

ur community is fortunate to have legal professionals committed to values of equal justice for all of our members, regardless of income, class, or social status. Conditions such as homelessness, alcohol addiction, drug dependency, and mental health challenges affect countless individuals in the Dayton area. Indeed, these conditions contribute to incarceration for our community’s most vulnerable citizens. This month’s Rising Star of the Bar, in recognition of Valentine’s Day, is a couple that represents many of these vulnerable citizens at the Law Office of the Montgomery County Public Defender: Alysia Goss and Mike Dailey. Mike and Alysia both joined the Public Defender’s Office in 2010, and volunteered until hirable positions were available. This meant that Mike and Alysia each had to find paying jobs for weekends when they were not spending forty hours a week practicing law. Mike spent his weekends working at Applebee’s, while Alysia took shifts at Dorothy Lane Market. “I will never forget one of my first jury trials had just gone into deliberation, and I told Judge Langer that I had to go to work at Dorothy Lane Market, but will make it back as soon as I can when the jury has a verdict. I think he was caught by surprise when I explained to him that I was just volunteering with the PD’s office,” recalled Alysia. For both of them, practicing criminal defense was a natural calling… even though both had studied accounting in college. Alysia came from a family of doctors, and briefly considered practicing business litigation (just to be different), but after she took Lewis Katz’s Criminal Procedure class at Case Western Reserve University School of Law, she instantly began focusing on criminal law. During law school, she took advantage of opportunities to learn more about criminal defense by competing on the trial team and participating in the law school’s death penalty clinic. For Mike, the choice to go to law school came at eighteen when the factory he worked at laid off a large number of its workers, and he needed to come up with a plan for his future: “After I got my notice, I visited my brother and asked him what I should do. He said go to law school, and I did just that. I majored in accounting because I was told that it would be practical and helpful for law school, but I am so glad I found criminal defense law. I would have hated being in an office all day, every day, just counting billable hours.” While working at the PD’s office, Mike and Alysia became friends, and eventually started dating in 2012. “I think we both have the right mindset for criminal defense. Our skills complement one another’s, and we both care about the social justice issues that affect our clients,” Mike explained when discussing how they began dating. “You grow close to each other when you are working on matters that affect real people.” The two even tried a jury trial together over their two-year anniversary. Alysia said, “My anniversary gift to Mike was a trial binder, and now he duplicates my trial binder method for every case.” During the one and only case they tried together, where their client was facing a potential life sentence, they ended up with a jury verdict finding their client not guilty on all counts. To say that the two work well together would be an understatement. Both at work and at home, they constantly bounce ideas off of one another, and never hesitate to help and support the other when challenges arise. Life in the PD’s office is not easy. Mike and Alysia both agreed that they often feel like the underdog, while contending with preconceived ideas about their clients, media attention, and the resources of the state. In fact, sometimes, even their own clients are not on their side. Mike explained that “sometimes you have to spend extra time walking your client through what is going on and what the consequences of certain decisions will be, but generally, if you work hard on every case, the client will usually, eventually, be supportive no matter the outcome.” Alysia added that “most people do not recognize that for our clients, we might be all they have. They continued on page 11

Dayton Bar Briefs February 2019

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DBA RISING STARS: Mike Dailey & Alysia Goss continued from page 10 may not have family or friends that they can turn to.” Accordingly, Mike and Alysia balance roles of advocate, confidant, and friend. Plus, they work often with the same prosecutors and judges every day, so they value the importance of maintaining professional relationships, while also advocating the best that they can for their clients. In addition, Alysia takes on the added responsibility of co-supervising the PD’s internship program, where she helps recruit law students from University of Dayton School of Law to intern with the PD’s office and learn through “on your feet” training. Together, Mike and Alysia often find themselves serving as mentors to law students interested in criminal defense, and help guide them as they handle everything from preliminary hearings to trials. Despite the challenges, Mike and Alysia emphasized that their work is rewarding. “Obviously you do not enter public interest for the money, you do it because you want to help people,” explained Mike. “For our clients, this is probably the absolute worst time of their life, and so we are there to help them through it and, hopefully, get a favorable result,” added Alysia. But Mike and Alysia are not alone. Their colleagues at the PD’s Office support them professionally as resources for help and insight, as well cheerleaders for client victories. They circulate congratulatory emails and go out for happy hour after victories, whether that victory be a not-guilty verdict, diminished sentence, or an opportunity for the client to get the help he or she needs. The office even has a stuffed dog (the “Big Dog Award”) that circulates from attorney to attorney after victories, with the condition that each recipient of the Award pin something new to the dog. Both Mike and Alysia agreed that the PD’s office is a great place to work, and they could not ask for a more supportive community. If their life at work is fast-paced, the DaileyGoss household is just as busy. Mike and Alysia welcomed a baby girl, Amelia, into their family in 2016. Amelia joins her brother Aus-

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tin, sister Bella, two cats named Pickles and competitions, Bella’s on her way to starting LeBron, and their dog Gideon, aptly named high school in just two years, and Amelia is for the defendant in Gideon v. Wainwright. already accumulating all of those special first’s Mike and Alysia’s kids are active in theater, that never stop being phenomenal in a parent’s piano, and acapella club, so after work they ofeyes. The Dailey-Goss family is one dedicated ten spend their nights coordinating activities, to helping others, and our community is lucky practices, and recitals. When the opportunity to have them. arises for a vacation, Mike and Alysia enjoy traveling and exploring places they have never been before, whether it be hiking mountains in Washington, or just wandering about New By Zachary Heck Esq. York City. Alysia also volunteers her spare time as a Chair DBA Editorial Board Taft Stettinius & Hollister legal advisor for Centerville High School’s LLP mock trial team. “I loved mock trial in law school, and still keep in touch with my teammates, so I love having the opportunity to R.L. EMMONS AND share that excitement with these high school kids are developing a window into the adult ASSOCIATES, INC. world and deciding what they want to do after school,” Alysia explained. “I try to educate my 842–A E. Franklin Street students on some of the practice elements of Dayton, Ohio 45459 trial law, while also finding places to emphasize the value of individual rights.” Since Alysia joined Centerville High School’s Mock Trial team in 2015, she has coached three teams to Professional Investigative and state appearances, and one team to recognition Legal Support Services Firm as fifth in the state. For Mike, his hobbies come in the form of political engagement. He enjoys finding local candidates, issues, and initiatives he supports,  Polygraph and volunteering his time to canvass, counsel, and help drum up support. Over the last few  Asset Searches years, he has spent weekends, summer holidays,  Criminal Defense and evenings at parades and rallies to get the word out about candidates he believes can help  Process Service our community become an even better place to live and work. “I try to help out where I can,”  Witness Locates / Interviews Mike explained, “and if I can help out and be  Surveillance active for causes that I believe in, then I am going to give it my full effort.”  Civil Case Prep Last year, Mike and Alysia became certified to try death penalty cases. Later this year,  General Investigation they will both be sworn in to practice before the United States Supreme Court. But they DAYTON: 937 / 438–0500 are most excited to enjoy the special family Fax: 937 / 438–0577 moments that are on the horizon: Austin’s performances during acapella shows and

February 2019 Dayton Bar Briefs

Diversity Issues

Thurgood Marshall: The Birth of a Real World Superhero ByBrandon C. McClain, Recorder Montgomery County Recorders Office Chair DBA Diversity Committee

eal world superheroes are not sent from other planets; they are born from the ashes of the unjust truths they have lived- or, rather, endured. The life and legacy of the late United States Supreme Court Justice Thurgood Marshall proves it. From his first day on this Earth to his last, Justice Marshall was destined to be a persistent and dedicated soldier in the war of equality for all. His relentless pursuit of justice led to successes involving the desegregation of schools, voting rights, and racially-motivated restrictive covenants in real estate, just to name a few. Yet, Justice Marshall believed his criminal casework to be the most meaningful, as it saved the lives of those who were powerless and falsely accused. Likely, his perspective about his criminal casework formed in 1941- when he was an attorney for the National Association for the Advancement of Colored People (NAACP). That year, he would be sent to Hugo, Oklahoma by the NAACP to represent William Douglas Lyons, an illiterate 21-year-old black sharecropper accused of murdering Mr. and Mrs. Elmer Rodgers and their 4-year-old son Elvie, a white family, and burning down their home to conceal the crime during the evening of December 31, 1939. 1 Lyons allegedly killed the family with an axe and shotgun. 1 Shortly after being arrested, Lyons confessed. However, not before being denied food and water and having his head be severely beaten by a baton for several hours by the police. 2 He later reasoned to confessing twice because he “didn’t want to be tortured anymore” and “couldn’t stand any more of the beating.”3 This severe abuse of Lyons would serve as the focal point of attack for Marshall. For the next year, Lyons sat in custody awaiting trial. When word traveled of Thurgood Marshall coming to Hugo, spectators gathered at the courthouse to observe the proceedings.3 During a pre-trial hearing, Marshall argued Lyons' confessions should be suppressed on the basis they were involuntarily obtained by police coercion.4 His legal arguments about Lyons’ confessions essentially swayed all who listened- even the father of the murdered woman.1 Nonetheless, his arguments did not sway the trial judge, Judge J.R. Childers- the confessions were deemed admissible as a matter of law.4 The trial ensued. Marshall dazzled the courtroom of spectators- leading to the crowd to double in size with locals.3 He

Dayton Bar Briefs February 2019

reetings, Brothers and Sisters of the Bar. Time for another missive from ne with our fellow trial lawyers, the finest of all breeds.

cross-examined the police officer and the governor's special investigator, Vernon Cheatwood, which revealed abuse, deception, and lies.3 Nonetheless, after little more than five hours of deliberation, the jury returned with a verdict - guilty. 3 Lyons would be sentenced to life imprisonment instead of death, as sought by the prosecution.3 Subsequently, the case was appealed - first to the Oklahoma Criminal Court of Appeals and then to the United States Supreme Court (Supreme Court). 4 The voluntariness of Lyons' confessions were at issue, at least in the opinion of Marshall. Based upon recent Supreme Court precedent, Marshall likely believed the case to be an obvious winner. He was sorely mistaken. In a 6-to-3 decision, the Supreme Court found Lyons' second confession to be voluntarily obtained by the police and the conviction was affirmed.4 Marshall had suffered his very first defeat before the Supreme Court. However, Marshall did receive some comfort in the fact his efforts saved Lyons from the electric chair.1 Lyons would serve 20 years of a life sentence at Oklahoma Penitentiary at Macalister - eventually being paroled in February 1961.5 The Lyons case would not inhibit his career; on the contrary, it served as a catalyst. Beginning in 1940, Marshall prevailed in 29 of the 32 cases he argued before the Supreme Court, with all cases challenging the ‘separate but equal’ doctrine instituted by Plessy v. Ferguson (1896) to some degree.6 Many credit the Lyons' case with strengthening his commitment to transforming the criminal justice system as he knew it. Regardless of the reason, Marshall’s commitment to justice ensured the unjust truths he lived did not have to be endured by others. While our nation has experienced considerable growth since the Lyons case, injustice unquestionably still lives in 2019. Thankfully, so does the spirit of Thurgood Marshall. His legacy is a key victory in the war of equality for all people. He is and will forever be a real world superhero. ENDNOTES: King, G. (2014, November 20). The Awakening of Thurgood Marshall. Retrieved January 8, 2019, from https://www.themarshallproject.org/2014/11/20/the-awakening-of-thurgoodmarshall. 2 Klarman, Michael J. (2009). "Scottsboro". Marquette Law Review. 93 (2 Symposium: Criminal Appeals: Past, Present, and Future): 429 – via Marquette Law Review. 3 Thurgood Marshall to Walter White, January 28, 1941, NAACP Papers, Library of Congress. 4 Lyons v. Oklahoma, 322 U.S. 596 (1944) 5 The Paris News, March 1, 1961 6 Marshall confirmed as Supreme Court justice. (2009, November 24). Retrieved January 10, 2019, from https://www.history.com/this-day-in-history/thurgood-marshall-confirmed-as-supremecourt-justice. 1

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APPELLATE COURT PRACTICE It's a Privilege to Appeal continued from page 9 disputes.” Id. at ¶12, citing State ex rel. Grandview Hosp. & Med. Ctr. V. Gorman, 51 Ohio St.3d 94, 95 (1990). The Daher Court observed that the trial court’s order for an in camera inspection was but the first step toward a decision on a provisional remedy. Id. It was not the decision on a provisional remedy required for final appealable order status under R.C. 2505.02(B)(4). Thus, the courts lacked jurisdiction to hear appeal of a decision ordering an in camera inspection. Id. at ¶16. We note that Justice

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O’Donnell issued a sole dissent calling the majority’s decision “folly,” “ill-advised,” and “hastily considered.” Id., ¶24. So, Dear Reader, when privilege is challenged, be sure to note your appeal period and do your research quickly to make sure you preserve your client’s rights, even if it may seem like a non-appealable interlocutory decision.

February 2019 Dayton Bar Briefs

Get to Know Newly Appointed Judge, Helen Wallace By The Honorable Gerald Parker Chair DBA Juvenile Law Montgomery County Common Pleas Court

Many folks do not know you were born in South Africa. Tell me about your recent trip back?

My trip was wonderful. I have cousins and aunts who live there and we stayed with them in Cape Town. We had some much needed family time to relax after the campaign. South Africa is a beautiful country. Cape Town is a gorgeous city with stunning beaches, vineyards and mountains. We swam, surfed and hiked Lion's Head and Table Mountain. I love to hike, and hiking in one of the most beautiful places on earth with my family was an amazing experience. From the top of Table Mountain, you can see all of Cape Town and across the bay. We had a clear view of Robben Island. Robben Island is where one of the people I most admire, Nelson Mandela, was kept captive for 18 of the 27 years he was imprisoned. South Africa is haunted by its past and is working to overcome its challenges. As much beauty as there is, there is also extreme poverty and inequity. We loved our time there but we were glad to get home to the United States. I never forget that but for the luck of being born to my parents, I could be a living in a tin shack, without running water or electricity or plumbing, struggling to feed myself and my family.

What types of cases did you handle prior to being elected Judge? Are you going to miss it?

Prior to being elected Judge, I was practicing divorce and custody matters, along with guardian ad litem work and substitute prosecuting. I will miss some of my clients and some of the freedom that comes from 14

Dayton Bar Briefs February 2019

owning your own law practice. However, the opportunity to be Judge of Montgomery County Juvenile Court far outweighs anything I may miss about private legal practice.

What do you most look forward to in your new role as Montgomery County Juvenile Court Judge?

I am looking forward to working with all the employees and partners of Juvenile Court to continue to provide the best possible outcomes for the children we see in our Court. I am so excited to work with Judge Capizzi to grow and implement new initiatives to address the needs of our children and community. I am also glad that I will preside over delinquency cases. I have missed criminal law as my private practice morphed into a mostly divorce and custody firm.

Do you have any top priorities entering your new position?

My top priority is making sure the Court employees know that I am going to do my very best for them and the Court. Our Court has had a turbulent year. We suffered a huge loss after Judge Kuntz' unexpected passing, and since May have been in a state of flux and tumult. I want everyone to know that with the New Year and the beginning of my term, we are turning a new page. We have such a great opportunity to help the children of Montgomery County, while keeping our community safe. I know that we can all work together as a team to do the very best job possible. I want to see resources to address the mental wellness of children grow, and I

want to start identifying kids who struggle in school so that we can address their needs. In my experience, many of the children we see in Juvenile Court struggle in school and cannot read or write. This causes children to become disengaged in school and eventually check out or act out. Most of the time, this can be prevented. Children are all different (just as adults are) and some kids need to be taught in a different way. That does not mean that they are less intelligent, or have less to offer society. Different is not less than. If we can reach the children who struggle in school, we will help them to be an asset to society, rather than an unnecessary burden.

Did You Know?

You can read the past 5years of Bar Briefs online on our archives page Just Visit: daybar.org/barbriefs

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Saturday, February 23, 2019 | 9:00am-12:00pm The Foodbank Dayton 56 Armor Pl., Dayton, OH 45417 Weâ&#x20AC;&#x2122;re fighting hunger with The Foodbank! The Foodbank brings food, comfort and hope to hungry families in the Dayton area. Each week, The Foodbank distributes 1,400 Good-to-Go Backpacks to children who are at risk for going hungry over the weekend.

We need you. The Foodbank serves more than 100 programs annually, distributing over 9 million pounds of food. With your contribution, additional families can be fed and more people can learn about The Foodbankâ&#x20AC;&#x2122;s mission to end hunger. Help lead the fight against hunger! *All volunteers must be at least 14 years of age.

Last Year was a blast!!!

To Sign-Up or For More Information Contact:

Chris Albrektson, DBA Assistant Executive Director, LRS Director calbrektson@daybar.org | 937.222.7902 www.daybar.org

February 2019 Dayton Bar Briefs

continuing legal education DATE CHANGED! Criminal Rules by the Number (Part 1) – Pretrial Proceedings Monday, March 11, 2019 February 11, 2019 | 1:00pm - 4:15pm 3.0 General Hrs M $105 | NM $15 | P $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, in the following order: 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

Estate Planning, Trust, Probate Law Committee presents:

Estate Planning Trust & Probate Potpourri Wednesday, February 13, 2019 | 4:00pm - 5:00pm 1.0 General Hr M $25 | NM $45 | P $0

See details on page 17

2019 Annual Probate Law Institute Friday, March 1, 2019 | 8:30am - 4:30pm 6.5 General Hrs Location: Sinclair Community College, Building 12 EARLY BIRD RATE Register by February 22nd! M $215 | NM $300 | PP $30 After February 22nd: M $240 | NM $325 | PP $30 *Materials will be available in electronic format. **Printed Materials are $30, with sales February 25th.

Intellectual Property for General and Corporate Practitioners (video replay) Monday, March 4, 2019 | 1:00pm - 4:15pm 3.0 General Hrs, including 1.0 Hr Professional Conduct M $105 | NM $150 | P$0 Faculty: Matthew Jenkins, Ted Lienesch and Scott Allendevaux Matthew Jenkins, Ted Lienesch and Scott Allendevaux will present this important primer for General and Corporate Practitioners. Topics covered include: Trademarks and Domain Names; Trade Secrets; Patents; Copyrights; and IP from a Litigators Point of View. AGENDA: • Patents, Copyrights and Trademarks for the General Practitioner • IP Cyber Security and Data Protection • Ethics Issues Involving Intellectual Property

Ethics Case Law Review and New Advisory Opinions (video replay) Friday, February 22, 2019 | 1:00pm - 4:15pm 3.0 Professional Conduct Hrs M $105 | NM $150 | P$0 Presenters: John Ruffolo, DBA Bar Counsel Tabitha Justice, Subashi & Wildermuth Mark A. Tuss, Law Offices of Mark A. Tuss Jeff Hazlett, DBA Ethics and Grievance Committee During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences. The Rules and Example cases will be provided to all attendees. Legal Basis: Under Article IV, Section 2(B) of the Ohio Constitution, the Supreme Court of Ohio has original jurisdiction regarding the admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law. [Article IV, Section 2(B)(1)(g)] Common Ethics Violations: Consistent with its constitutional powers, the Supreme Court of Ohio adopted the Ohio Rules of Professional Conduct, effective February 1, 2007, superseding and replacing the Ohio Code of Professional Responsibility. AGENDA: • Yearly summary of Ohio Disciplinary Cases • New Advisory Opinions Review

Judge Langer’s 2018 Criminal Law Update (video replay) Monday, February 25, 2019 | 1:00pm - 4:15pm 3.0 General Hrs M $105 | NM $150 | P$0

Dayton Bar Briefs February 2019

Take up to

12 hours of self study credit.

A great variety of programs to choose from. Online CLE programming allows you to take CLE courses on a wide variety of topics, any time of the day, any day of the week!

AGENDA: Judge Langer will survey US and Ohio Supreme Court and appellate decisions. Topics may include: search and seizure, confessions, pretrial identifications criminal offenses, pretrial procedure, rules of evidence, trial procedure, sentencing, and CCS revocation. 16

Earn CLE Anytime, Anywhere.

Daybar.ce21.com

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6.5 CLE Hrs

Friday, March 1, 2019

Sinclair Community College

Probate Law 2019 DBA Annual

Friday, March 1, 2019 Sinclair Community College, Bldg 12 8:30am - 4:30pm 6.5 General Hrs EARLY BIRD RATE SAVE $25! Register by February 22nd M $215 | NM $300 | P$30

Institute

Sponsor Just Added!

Agenda: 8:30am

“I Do – I Don’t”: The Law of Marital Agreements in Ohio Susan L. Racey, Tucker Ellis LLP, Cleveland, 1.25 hr

9:45am

Merge and Splurge: Joint Trusts During the Continuing Saga of “Temporary” Tax Law

Edwin P. Morrow Esq., U.S. Bank, Cincinnati, 1.0 hr

10:45am Break 11:00am GPS for Ethical Practice in the Probate Arena

The Honorable Jack Puffenberger, Lucas County Probate Court, 1.0 hr

12:00pm Lunch 1:00pm Case Law Update

Magistrate Paula D. Haas, Summit County Probate Court, 1.25 hrs

2:15pm Break 2:30pm Survey of H.B. 595: Top 10 Ohio Estate, Trust, and Probate Law Changes Coming in 2019

Elizabeth Weinewuth Esq., Vorys, Cincinnati, 1.0 hr

3:30pm Montgomery County Probate Court “Hour of Power:” Current Issues at the Court

Judges, Magistrates and Staff 1.0 hr

Pricing

EARLY BIRD RATE

After February 25th Member $240 NonMember $325 Passport $30

Printed Materials $30 order by February 25th (Select this option if you would like printed materials.) *Electronic materials will be available at no cost.

109 N. Main St., Ste. 600, Dayton, OH 45402

4:30pm Adjourn www.daybar.org

February 2019 Dayton Bar Briefs

Preserving Trial Advocacy By Glen R. McMurry Esq. Dinsmore & Shohl LLP

he Southern District of Ohio is again leading the charge for some of the most exciting and innovative developments in federal practice. Recently, a national task force was formed with participation from several federal judges within the Southern District of Ohio to address the growing concern surrounding vanishing jury trials and oral advocacy opportunities for less experienced attorneys. Initially, the task force will study the efficacy of standing judicial orders promoting oral advocacy for less experienced attorneys. This national task force, which I am honored to chair, is planned to run for three years and is currently populated by several Southern District of Ohio attorneys and judges, including Magistrate Judge Michael Newman, Magistrate Judge Stephanie Bowman, and Sebaly, Shilito, & Dyer attorney Dan Donnellon. On October 20, 1983, then Associate Justice William H. Rehnquist noted in a speech at the third Brainerd Currie Memorial Lecture, which was delivered at The Grand Opera House in Macon, Georgia, that over the history of the federal appellate courts, because judicial time has “steadily dwindled, the oral side of the appeal, and the art of oral advocacy, came to play a smaller and smaller part in the presentation of cases to appellate courts . . . .” In a grim prediction, Justice Rehnquist warned, “If state appellate and trial judges react similarly to these federal judges, the future of oral argument is dim indeed.” 1 Over 34 years have passed since Justice Rehnquist’s speech. Unfortunately, barring the individual efforts of some judges and attorneys (some of whom are referenced in this article), there has been no concerted, rules based effort on the part of our bar associations to address this problem. Despite repeated warnings and calls for action, we (as a profession) have allowed generations of attorneys to begin viewing trial dates, oral arguments, and general courtroom advocacy opportunities only as a means of motivating settlement and as dates on a calendar that are to be avoided at all costs. Courtroom advocacy opportunities are exceedingly rare. The American Bar Association observed that by 2002, despite a fivefold increase in case load at that time, civil and criminal jury trials in federal courts occurred in only 1.8% of cases.2 In the twelve month period ending September 30, 2016, the United States Courts reported that only 11,754 civil and criminal trials were conducted in the previous year across all courts.3 In civil cases, the number of cases that made it to trial was only 1.0%.4 continued on page 19 ENDNOTES: The printed text of Justice Rehnquist’s speech was later published in 1984 by the Mercer Law Review under the title Oral Advocacy: A Disappearing Art, 35 Mercer L. Rev. 1015 (1984).

Opening Statement: The Vanishing Trial, Litigation Online, Winter 2004, Vol. 30, No. 2, p. 2. (Exhibit B)

Table T-1, Annual Report of the Director: Judicial Business of the United States Courts. (Exhibit C)

Table C-4, Annual Report of the Director: Judicial Business of the United States Courts. (Exhibit D)

Dayton Bar Briefs February 2019

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Preserving Trial Advocacy continued from page 18

Lack of courtroom interaction is also impacting our court’s ecosystem. On August 7, 2016, the New York Times reported that federal clerks spend their entire clerkships without working a single trial.5 Further, stenographers observed declining income due to lack of courtroom interaction.6 Most troubling, some judges are leaving the bench at least in part due to the decrease in trial time.7 U.S. District Court Judge Shira A. Scheindlin cited a decrease in trials as at least one consideration for her departure.8 Further, these exceedingly rare courtroom advocacy opportunities are customarily reserved for the most senior and experienced in our profession, leaving our younger or inexperienced attorneys with little to no opportunity to advocate for their clients in any courtroom setting. It is respectfully submitted that this current state of affairs threatens numerous aspects of our profession’s long-term well-being, chief among which is the relationship between attorneys and the bench and the ability of attorneys to effectively advocate for their clients. While I have yet to uncover any study to this effect, I also suspect that the perception of our profession amongst the general public has been greatly harmed by the above-noted trend. Fundamentally, we are officers of the third-branch of our government. Sadly, our constituents no longer hear us and rarely see our advocacy, particularly in the civil arena. We cannot continue to be the driving force behind certified mail to the exclusion of allowing our clients to see and hear what we are doing on their behalf. We must do more than simply “push paper.” Obviously, the factors driving this trend are numerous and there will never be a single solution that will address them all. However, one tool being utilized by several of our federal judges is gaining traction – the adoption of standing orders/local rules that incentivize litigants to allow younger lawyers to participate in oral arguments. I believe that the effort of these federal judges can benefit from the organized support of our bar. Numerous judges have endeavored to adopt standing orders in an effort to afford younger attorneys more courtroom advocacy opportunities. Examples of such orders are as follows:

1. “U.S. Dist. Judge Analisa Torres – Southern District of New York

Participation of Junior Attorneys. Given the decline in cases going to trial, opportunities for courtroom advocacy are increasingly rare. To assist in the training of the next generation of attorneys, the Court strongly encourages relatively inexperienced attorneys—in particular women and underrepresented minorities—to participate in all courtroom proceedings. Further, the Court is amenable to having multiple attorneys speak for one party if it creates an opportunity for a lawyer who is relatively inexperienced or from an underrepresented group. However, all attorneys appearing should have the degree of authority consistent with the proceeding. For example, an attorney attending a pre-motion conference should have the authority to commit his or her party to a motion schedule, and should be prepared to address other matters likely to arise, including the party’s willingness to participate in a settlement conference with the assigned Magistrate Judge.”

2. “U.S. Dist. Judge William Aslup – Northern District of California

If a written request for oral argument is filed before a ruling, stating that a lawyer of four or fewer years out of law school will conduct the oral argument or at least the lion’s share, then the Court will hear oral argument, believing that young lawyers need more opportunities for appearances than they usually receive.”

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3. “U.S. Magistrate Judge Paul Grewal – Northern District of California (Case Specific)

In a technology community like ours that prizes youth—at times unfairly—there is one place where youth and inexperience seemingly comes with a cost: the courtroom. In intellectual property case after intellectual property case in this courthouse, legions of senior lawyers with decades of trial experience regularly appear. Nothing surprises about this. When trade secret or patent claims call for millions in damages and substantial injunctive relief, who else should a company call but a seasoned trial hand? But in even the brief tenure of the undersigned, a curious trend has emerged: the seasoned trial hand appears for far more than trial itself. What once might have been left to a less experienced associate is now also claimed by senior counsel. Motion to compel discovery? Can’t risk losing that. Motion to exclude expert testimony? Can’t risk losing that, either. Motion to exclude Exhibit 20356 as prejudicial under Fed. R. Evid. 403? Same thing. All of this raises a question: who will try the technology cases of the future, when so few opportunities to develop courtroom skills appear? […] This case offers this member of the bench a chance to start doing his small part. In a jury trial lasting several weeks, the court was privileged to witness some of the finest senior trial counsel anywhere present each opening statement, each direct and cross-examination and each closing argument. The court intends no criticism of any party’s staffing decisions. But with no fewer than six post-trial motions set for argument next week, surely an opportunity can be made to give those associates that contributed mightily to this difficult case a chance to step out of the shadows and into the light. To that end, the court expects that each party will allow associates to present its arguments on at least two of the six motions to be heard. If any party elects not to do this, the court will take its positions on all six motions on the papers and without oral argument.” Again, I am happy to report this national trend is gaining traction in our very own Southern District of Ohio. In fact, Magistrate Judge Stephanie Bowman recently adopted a similar order intended to create oral advocacy “opportunities for lawyers newer to the practice[.]” The full text of Magistrate Judge Bowman’s order can be found at the following link: https://www.ohsd.uscourts.gov/sites/ohsd/files/civiloralargument11072018.pdf. We owe our younger and less experienced members of our profession a duty to nurture their professional growth and provide them the experiential opportunities to make them successful. This effort may not be the magical cure for all of our profession’s ills…but it’s a start.

ENDNOTES: Trial by Jury, a Hallowed American Right, Is Vanishing, Weiser, Benjamin, The New York Times Online, Aug. 7, 2016, https://www.nytimes. com/2016/08/08/nyregion/jury-trials-vanish-and-justice-is-servedbehind-closed-doors.html. (Exhibit E)

Id.

February 2019 Dayton Bar Briefs

From The Judges Desk

JUDGE LANGER'S Criminal Law Top 10 List By The Honorable Dennis J. Langer Montgomery County Common Pleas Court

ach year I have the pleasure of conducting an end-of-the-year Criminal Law Update Seminar at the Dayton Bar Association. My “Top 10 List” for 2018:

1. Carpenter v. United States, United State Supreme Court, 138 S. Ct. 2206 ( June 22, 2018): A defendant has a reasonable expectation of privacy in his/her historical cell-site location information (CSLI).The fact that that this information is in the possession of a third-party (the wireless carrier) does not overcome the defendant’s claim of Fourth Amendment protection. Thus, in the absence of exigent circumstances, the government will need a search warrant based upon probable cause to access this information. These records can no longer be obtained from the wireless carriers merely by subpoena. 2. State v. Carnes, Ohio Supreme Court, 2018-Ohio-3256 (August 15, 2018): A prior juvenile adjudication may be an element of the weapons-under-disability offense under R.C. 2923.13(A)(2) without violating due process under the Ohio or US Constitutions. In a previous case - Ohio v. Hand – the Supreme Court held that a prior juvenile adjudication is a not a “conviction” that can enhance the sentence for a subsequent offense. However, in the weapons-under-disability statute, the juvenile adjudication is not used for sentence-enhancement purposes. It an element of the offense; it is the disability.

6. State v. Jackson, Ohio Supreme Court, 2018-Ohio-2169 ( June 7, 2018): Miranda v. Arizona applies only if a custodial interrogation is conducted by a law enforcement officer or someone acting as their agent. The duty of giving Miranda warnings is limited to employees of governmental agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies. It is not the function of a public children services agency to enforce the law. Therefore, a CSB caseworker, who interviews a defendant under arrest for child abuse or child neglect, is not required to administer the Miranda warnings - unless there the CSB caseworker is specifically doing so as an agent of the police. 7.

State v. Paige, Ohio Supreme Court, 2018-Ohio-813 (March 7, 2018): Split sentences are prohibited in Ohio. A court must impose either a prison term or a community-control sanction as a sentence for a particular felony offense—a court cannot impose both for a single offense. However, a trial court does not violate the rule against split sentences when it imposes prison sentence on one count and, separately, community control on another count in the same indictment.

3. State v. Ireland, Ohio Supreme Court, 2018-Ohio-4494 (Novem-

8. State v. Clinton, Ohio Supreme Court, 2017-Ohio-9423 (December

4. State v. Beasley, Ohio Supreme Court, 2018-Ohio-493 ( January 16,

9. State v. Moore, Ohio Supreme Court, 2018-Ohio-3237(August 14, 2018): A defendant is not entitled to “jail-time credit” to the portion of a prison sentence that is imposed for a firearm specification. “Jail-time credit’ may be applied only against the prison sentence for the underlying offense.

ber 8, 2018): For any criminal offense, the State must prove that the defendant acted voluntarily. However, voluntariness is not an essential element of the offense such that it must be charged in the indictment or addressed in the trial court’s jury instructions. The State’s proof of the actus reus and mens rea is necessarily also evidence that the defendant acted voluntarily. A challenge to voluntariness is a defense. Therefore, “blackout” is an affirmative defense, which defendant must prove by a preponderance of the evidence. 2018): Under Evid.R. 702, there is no requirement that an expert utter any “magic words” in terms of “reasonable degree of medical or scientific certainty.” An expert’s opinion is admissible so long as it provides evidence of more than mere possibility or speculation.

5. State v. Myers, Ohio Supreme Court, 2018-Ohio-1903 (May 17,

2018): Where a prospective juror gives contradictory answers on voir dire, in ruling on a challenge for cause, the trial judge need not accept the last answer elicited by counsel as the prospective juror’s definitive word.

Dayton Bar Briefs February 2019

19, 2017): Assuming an exception to the rule against hearsay does not apply (e.g. “excited utterance”), a prosecutor witness’ hearsay statement to the police is not admissible on direct examination, even though the witness is subject to cross-examination. Such statement is inadmissible hearsay, notwithstanding that the witness can be cross-examined by defense counsel regarding the statement.

10. State v. Banks-Harvey, Ohio Supreme Court, 2018-Ohio-201 ( January 16, 2018): A law-enforcement agency’s policy that an arrestee’s personal effects must accompany the arrestee to jail cannot, on its own, justify the warrantless retrieval of an arrestee’s personal effects from a location that is protected under the Fourth Amendment. A search of personal effects obtained as a result of following such a policy is not a valid, because it does not fall within the automobile inventory search exception.

937.222.7902

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Gold Sponsor $150

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2019 PARALEGAL DAY

Celebration Thursday, April 18, 2019 11:30 am - 1:00 pm Sinclair College Building 7, room 7-006 ABC 444 W. Third Street Dayton, Ohio 45402

Silver Sponsor $75

includes: two tickets to the event $45 tax deduction All sponsors will have their firm’s logo or the individual’s name in the event program.

Individual Ticket $15 Parking available for everyone in the student lots.

*Lunch Provided* Payment accepted via check payable to: Sinclair Foundation - Paralegal Day

It’s time to celebrate the Paralegal profession! Please join us at Sinclair for lunch, a silent auction, keynote speaker, and the awarding of the 2019 Paralegal of the Year award.

Mailed to: Sinclair College Paralegal Program Building 5-141, 444 W. Third Street Dayton, Ohio 45402 Pay Online: www.sinclair.edu/giving/paralegal-day

Nominate an Outstanding Paralegal on your staff for the Paralegal of the Year Award! www.daybar.org

To nominate, go to: www.sinclair.edu/giving/paralegal-day

February 2019 Dayton Bar Briefs

Dayton Bar Briefs February 2019

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classifieds FORENSIC CLINICAL PSYCHOLOGIST James Daniel Barna, Ph.D., J.D. 47-years experience 2nd opinions Expert rebuttal witness jamesdanielbarna.com All Courts (937) 236-0085 LOCAL COURT RULES Dayton Municipal Cour t 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 SPACE AVAILABLE Three offices available in Kettering, ranging from 90SF to 135SF. Rent starts at $270/month for the smaller unfurnished office, slightly more for the furnished and larger offices. Rent includes all utilities, internet, access to the waiting area and conference room. Email Sean@ seanmmccauleylaw.com for more details. 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.

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Have you joined a DBA Committee? PART-TIME DAYTON DIRECTOR & COUNSEL POSITION Pro Bono Partnership of Ohio (PBPO) is seeking a part-time attorney (approx. 25 hours/week) to serve as our Dayton based employee in the position of Dayton Director and Counsel. Specific responsibilities include being the face of PBPO in the Miami Valley area and expanding our volunteer base by recruiting attorneys from in-house and private law firms to volunteer to represent our community-based nonprofit clients in connection with their business legal needs. Candidate Requirements: • A minimum 3-5 years legal experience with preference given to candidates with corporate law firm experience; • Enthusiasm and the capability to promote pro bono work by the corporate and private bar in the Dayton area; • Comfort with technology and the ability to quickly learn our CRM database; Salary range in the mid-high $30s DOE. More information about PBPO and this job posting can be found at www.pbpohio.org. Please contact Erin Childs, Executive Director (Erin@pbpohio.org) with any questions. POSITION AVAILABLE General practice firm with emphasis on business, litigation, estate planning and elder law has an opening for an attorney. Independent caseload and client interaction. Applicant should be hard working and have excellent writing skills. Medicaid planning experience desired, but is not required. Send resume and writing samples to: Simon Patry, Dysinger & Patry, LLC, 249 S. Garber Drive, Tipp City, Ohio 45371 or spatry@dysingerlaw.com. STUNNING OFFICE SPACE AVAILABLE Local law firm looking to share existing office space. Class A, 4 offices with 2 conference rooms. Phone and internet included, collaboration on Administrative resources available. Fairfield Commons, second floor. Contact Holly Potter 614.737.2900

Join Today and Lend YOUR Voice to the Conversation!

February 2019 Committee Meeting Dates Fri. February 1 @ 11:30am Public Service & Congeniality Mon. February 4 @ 4:00pm Juvenile Law Tues. February 5 @ Noon Diversity Issues Tues. February 5 @ Noon Young Lawyers Division (YLD) Tues. February 12 @ 5:00pm Civil Trial Practice Tues. February 12 @ Noon Labor & Employment Law Wed. February 13 @ Noon Appellate Court Practice

Wed. February 13 @ 4:00pm Estate Planning Trust & Probate Law Wed. February 13 @ Noon Federal Practice Thurs. February 14 @ Noon Real Property Thurs. February 14 @ Noon Domestic Relations Thurs. February 14 @ Noon CANCELED-Workers Comp & Social Security Wed. February 20 @ Noon Criminal Law & It's Enforcement Wed. February 27 @ Noon Law & Technology

for more meetings details, visit:

daybar.org/events

February 2019 Dayton Bar Briefs

members on the move

BURDGE

WEIGAND

Ronald L. Burdge has again been named the only 2018 Lemon Law Ohio Super Lawyer by Thomson & Reuters New York whose practice is limited to only representing consumers, making it his 12th year of honors. Burdge is a motor vehicle and recreational vehicle Lemon Law and Consumer Law attorney in Dayton and founder of the BURDGE LAW OFFICE. His practice concentrates on motor vehicle Lemon Law, defective products, vehicle sales fraud, and Consumer Protection. Ron graduated from University of Dayton School of Law in 1978 and is licensed to practice law in several states. He has represented over 7,000 consumers in Ohio, Kentucky, Indiana, Pennsylvania, New York, Florida, Arizona, California, and Iowa. A frequent expert witness and guest lecturer to national, state and local Bar Associations and Judicial organizations who has authored dozens of articles that have been published in local, state and national law publications, Burdge was previously named Consumer Law Trial Attorney of the Year. For more information contact Burdge Law Office at 937.432.9500 or 888.331.6422 or visit www.OhioLemonLaw.com

FARUKI+ is pleased to announce that Steve Weigand, an attorney with the business litigation firm, has been elected to the partnership. Weigand, who joined Faruki+ in 2008, is a successful trial attorney and counselor on complex legal issues and commercial disputes. His experience includes representing companies in diverse industries such as healthcare, financial services, manufacturing and construction, and he has litigated cases involving contracts, product liability, intellectual property and class actions, among others. In addition to his trial practice, Weigand is actively involved in the Cincinnati community. He is the Vice President of Development and Board member with Dan Beard Council, Boy Scouts of America. Weigand is the current Treasurer and Board member of the John W. Peck Cincinnati & Northern Kentucky Chapter of the Federal Bar Association. He is the Treasurer of the Litigation Section of the Ohio State Bar Association, and serves as the Chair of the Life Forward Board of Trustees. Weigand, in 2015, was a Gentlemen of Style and Substance Honoree, as recognized by Cincinnati Parks Foundation and Cincinnati Magazine. For more info about Weigand or Faruki+, contact John Kendall at 937.227 3723.

GREEN & GREEN LAWYERS, LLC is pleased to announce the following: For more info about Green & Green please call 937.224.3333 or visit www.green-law.com

GREEN

LYNCH

MOORE

WAGNER

Thomas M. Green, Jane M. Lynch and Erin B. Moore were recognized as Ohio Super Lawyers® for 2019 and Jared Wagner was recognized as a Rising Star by Ohio Super Lawyers®. Tom Green is an AV Preeminent rated attorney by Martindale Hubble, and is also recognized as a Best Lawyer in America 2019 in the area of commercial litigation. Mr. Green practices in the areas of commercial litigation, medical malpractice and complex injury litigation. Jane M. Lynch has been recognized as an Ohio Super Lawyers® since 2006, is a AV Preeminent rated attorney by Martindale Hubble, and is recognized as a Best Lawyer in America© 2019 in the areas of Civil Rights Law and Litigation Insurance. Ms. Lynch has also been selected as one of the Top Rated Lawyers in Construction Law by American Lawyer Media, and was selected to the Top 25 for 2019 Women Cincinnati Super Lawyers. Erin B. Moore has been recognized as an Ohio Super Lawyers® since 2017 and Ms. Moore and Jared Wagner also practice in construction law, governmental liability law, and general insurance defense matters. Green and Green, Lawyers, LLC, is a Best Lawyers of America© "Best Law Firm" for 2019.

MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted online: www.daybar.org/MembersOnTheMove and are subject to editing. These accouncements are printed as space is available. DBA ADVERTISING: For advertising in the Dayton Bar Briefs or any other DBA Publication- Discount rates are available! Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org 24

Dayton Bar Briefs February 2019

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Expand, Explore, Experience YOUR DBA in the New Year! PICKREL, SCHAEFFER & EBELING, CO., LPA is pleased to announce the following: For more info about PS&E please call 937.223.1130 or visit www.pselaw.com

HOLLENCAMP McDONALD

SANDNER

SPERRY

STORAR

SUNDGAARD

Robert Hollencamp has been named Principal and works in PS&E’s Litigation practice group, focusing on collections and helping his clients manage risk and enforce their rights in contracts, judgments, real estate, and business disputes. Gerald McDonald has been named Shareholder and is in the firm’s Business practice group focusing on Municipal, Real Estate, General Business and Intellectual Property. He is the law director for the City of Vandalia and the City of Huber Heights. He is an assistant law director in Springboro. Michael W. Sandner has been selected as 2019 Ohio Super Lawyer, as published in Ohio Super Lawyers magazine. Mike has been with the firm for 25 years and is current President of PS&E and a shareholder in the Firm’s Litigation Department. He concentrates his practice in the areas of commercial, construction, consumer and civil litigation. He is also a member of the OSBA and FBA, and member of the Ohio Association of Civil Trial Attorneys. Mike is currently a Board Member of Sycamore Country Club located in Springboro, Ohio. He is former president of the Springboro Chamber of Commerce, Springboro Rotary, former chair of the Dayton Art Institute Art Ball, and former board member of the Dayton Homebuilders Association, Dayton Society of Natural History, and Warren County SBDC. Eli T. Sperry has also been named Principal, and is in the firm’s Probate and Estate Planning practice group. Eli counsels clients of all ages to assure the clients intentions are clearly understood and carried out correctly. Andrew C. Storar has been selected as 2019 Ohio Super Lawyer, as published in Ohio Super Lawyers magazine. Andy is past president of PS&E and has over 30 years of experience representing entrepreneurs, individuals and businesses in a wide range of industries. Andy serves on many non-profit and charitable organizations. He is past president of the Kettering Education Foundation, Former President of Places Board of Directors Inc., former President of the Ohio State Bar Foundation, and former member of the Ohio State Bar Association Board of Governors. In 2019, Andy is also running for Ohio State Bar Association President Elect. Michelle T. Sundgaard has been selected by the Ohio State Bar Association Leadership Academy Advisory Council to be part of the 2019 Leadership Academy. The OSBA Leadership Academy is a five-month training program and is one of Ohio’s premier academy designed to nurture and prepare lawyers for effective leadership in the Association, profession, and community. Michelle is an associate in the Litigation Practice Group of PS&E.

SAVE THESE DATES! FEBRUARY 2019 Saturday, February 23rd @ 9:00am 2nd Annual DBA Volunteer Day

MARCH 2019 Friday, March 1st @ 9:00am Annual Probate Law Institute Friday, March 1st @ 11:30am Chancery Club Luncheon

APRIL 2019 Friday, April 4th @ 11:30am Chancery Club Luncheon Friday, April 5th @ 9:00am Diversity Day Friday, April 12th @ 9:00am Domestic Relations Institute

MAY 2019

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www.daybar.org

Friday, May 10th @ 11:30am Chancery Club Luncheon Wednesday, May 15th @ 11:30am Celebration of Life Memorial Luncheon Friday, May 31st @ 6:00pm Annual Meeting

February 2019 Dayton Bar Briefs

law-related organizations Dayton Bar Association Foundation

Help Build Our Foundation. T T

he DBA 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 to:

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Life Essentials Guardianship Program

- Legal Aid of Western Ohio (LAWO) - Law & Leadership Institute - Wills for Heroes

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

University of Dayton School of Law

Dayton Bar Briefs February 2019

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

Platinum Partners Coolidge Wall Co., LPA www.coollaw.com

Founded in 1853, Coolidge Wall Co., L.P.A. is a premier resource for businesses and individuals. From our historic office in downtown Dayton, we serve clients throughout the Greater Miami Valley area and all over the world. As one of the oldest and most respected law firms in Ohio, we are trusted legal professionals with a history of obtaining results.

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

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience.” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.

If you are interested in becoming a DBA Annual Parter, contact: Sally Dunker DBA Executive Director sdunker@daybar.org 937.222.7902 www.daybar.org

February 2019 Dayton Bar Briefs

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