The Magazine of the Dayton Bar Association | February 2020 | Vol. 69, No. 6
Dayton
Bar Briefs
February is DBA Member Appreciation Month!
Diversity Issues
KING/'THURGOOD: The Intertwinement of Destiny pg 9
DBA Rising Star Martin W. Gehres Esq. pg 18
details inside...
From the Judges' Desk Resilience pg 10
Dayton
Bar Briefs
CONTENTS
February 2020 | Vol. 69, No. 6
Dayton Bar Association Board of Trustees
Features
2019 – 2020
Hon. Mary L. Wiseman President
Fredric L. Young First Vice President
Merle F. Wilberding Second Vice President
Caroline H. Gentry Secretary
Treasurer
Anne P. Keeton
BARRISTERS OF THE MONTH: THE HONORABLE MARY E. & DAVID H. MONTGOMERY
By Zachary S. Heck Esq., Taft Law
8
DIVERSITY ISSUES
Reflections on the History of the Right to Vote
KING/THURGOOD: The Intertwinement of Destiny
By Brandon C. McClain, Montgomery County Recorder
By Alexandra Laine Esq., Taft Law
Protecting Employes AND Employers
By Kristina E. Curry Esq., Pickrel Schaeffer & Ebeling Co., LPA
18 RISING STAR: MARTIN W. GEHRES ESQ. By Alexandra Laine Esq., Taft Law
Member–at–Large
Adam R. Webber Member–at–Large
20 WORKERS COMP' AND SOCIAL SECURITY
David P. Pierce
Immediate Past President
John M. Ruffolo, ex officio
Covering Yourself to Carry
By Jennifer M. Brill Esq., Hunter Brill, LLC.
22 FROM THE JUDGES DESK Resilience
Bar Counsel
Jennifer Otchy, ex officio
Executive Director
By The Honorable Mary E. Montgomery, Montgomery County Common Pleas Court
Departments 9
FEBRUARY 2020 SECTION MEETINGS
12 FEBRUARY/MARCH CONTINUING LEGAL EDUCATION 25 CLASSIFIEDS Upcoming Events
Library of Congress ISSN #0415–0945
13 3RD ANNUAL VOLUNTEER DAY
Dayton Bar Briefs February 2020
6
Denise L. Platfoot Lacey
2
By Caroline H. Gentry Esq., Porter Wright Morris & Arthur, LLP
Member–at–Large
The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.
14 LABOR AND EMPLOYMENT Legal Updates on Employer Confidentiality Rules During Workplace Investigations:
Member–at–Large
Jennifer Otchy, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308
TRUSTEES MESSAGE
Rebecca M. Gentry
Paid subscription: $30 / year
4
10 FOR THE GOOD Mock Trial in the Miami Valley
Brandon C. McClain
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.
February is DBA Member Appreciation Month! Included in this issue are FREE events and activities intended to celebrate YOU our members. See page 15 for details!
Sat. February 22nd | The Foodbank Dayton | 9:00am - 12:00pm
12 2020 ANNUAL ESTATE PLANNING TRUST & PROBATE INSTITUTE Fri. March 13th | 8:30am-4:30pm | Sinclair Community College, Bldg 12
15 WHAT'S HAPPENING @ THE DBA Visit www.daybar.org to Register/RSVP for February Special Events During - Member Benefits Month!
937.222.7902
DBA Annual Partners Sponsors of the DBA. Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.
Platinum Partner
FARUKI+
www.ficlaw.com With offices in Cincinnati & Dayton
FARUKI+ is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.
Gold Partner
Thompson Hine LLP www.thompsonhine.com
Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. Thompson Hine has distinguished itself in all areas of Service Delivery 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. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.
If you are interested in becoming a DBA Annual Partner, contact: Jennifer Otchy DBA Executive Director jotchy@daybar.org 937.222.7902 www.daybar.org
February 2020 Dayton Bar Briefs
3
Trustee's Message
T
Reflections on the History of the Right to Vote By Caroline H. Gentry Porter Wright Morris & Arthur, LLP DBA Secretary
he 1802 Ohio Constitution limited the franchise to tax-paying white men: “In all elections, all white male inhabitants above the age of twenty-one years, having resided in the state one year next preceding the election, and who have paid or are charged with a state or county tax, shall enjoy the right of an elector.” This naturally raised the question: who is white? Ohio courts ruled that “[i]f an inhabitant of the state had an equal portion of the blood of each race” he could not vote, “but if he had a larger proportion of the blood of the white race, he was to be regarded as white.” Anderson v. Millikin, 9 Ohio St. 568 (1859) (citing cases). This holding was called into question by an 1851 amendment to the Ohio Constitution that changed “[e]very white male inhabitant” to “[e]very white male citizen.” Initially this change did not disrupt the settled legal framework. But in 1857, the U.S. Supreme Court held in Dred Scott v. Sandford that a slave of African descent was not a U.S. citizen on account of his African race. Suddenly, it was unclear whether biracial men could continue to vote in Ohio. (Note that the term “biracial” is mine; early Ohio laws and courts used the term “mulatto” instead. See Van Camp v. Bd. of Educ., 9 Ohio St. 406 (1859) (Sutliff, J., dissenting op.)). The Ohio Supreme Court was confronted with this issue in Anderson. Mr. Anderson was denied his right to vote because he had “one-eighth of African blood.” The Court distinguished Dred Scott on the grounds that Mr. Scott was not biracial but instead was “a negro, whose ancestors were imported into this country and sold as slaves.” The Court held that the views of the framers of the Ohio Constitution were paramount and concluded they changed “inhabitants” to “citizens” to prevent aliens from voting before they had become naturalized citizens, not out of an intent to exclude any person on account of color. Therefore, Mr. Anderson’s voting rights 4
Dayton Bar Briefs February 2020
were restored. Still, questions remained. What if you are technically “white” but do not look it? Monroe v. Collins, 17 Ohio St. 665 (1868), struck down a law that required election judges to challenge potential voters with “a distinct and visible admixture of African blood.” Mr. Collins, a resident of Xenia, was denied his right to vote despite having a preponderance of “white blood.” Paragraph 2 of the syllabus is uplifting: “The legislature have no power, directly or indirectly, to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; and laws passed professedly to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.” Paragraph 1 is decidedly less so: “Male citizens having a visible admixture of African blood, but in whom the white blood preponderates, are white male citizens within the meaning of the constitution of Ohio, and have the same right to vote as citizens of pure white blood.” The fight for women’s suffrage began in 1848 and ended when the Nineteenth Amendment to the U.S. Constitution was certified on August 26, 1920. But some women could vote earlier. The 1916 East Cleveland city charter allowed female residents to vote in municipal elections if they were U.S. citizens and over the age of twenty-one. Nevertheless, state election officials rejected all votes cast by women in the November 1916 election on the grounds that the Ohio Constitution only allowed men to vote. The Ohio Supreme Court sided with a disenfranchised female voter, holding that the Ohio Constitution’s home-rule provision allowed East Cleveland to enfranchise female residents for purposes of voting in municipal elections. State ex rel. Taylor v. French, 96 Ohio St. 172 (1917). Voting-rights issues that involve race and gender are widely known. Other voting-rights issues are less well-known but still important. In State ex rel. Melvin v. Sweeney, 154 Ohio St.
223 (1950), the Ohio Supreme Court upheld a law that allowed voters to receive assistance if they were physically unable to mark their ballot, but denied assistance to voters who were illiterate. The Court reasoned that assistance given to physically infirm voters “is intended to be mechanical in marking the ballot and not informative in the choice of candidates.” The Court held that illiterate voters, by contrast, “fall into the same category as the feebleminded, the ignorant and the uninformed. Aid in respect to these deficiencies would necessarily be of an informative character.” Today, Article V, Section 6 of the Ohio Constitution continues to deny “idiots or insane persons” the right to vote. Nevertheless, R.C. § 3505.24 allows electors who are blind, disabled or illiterate to receive assistance when casting a ballot. The last decision that caught my eye was State ex rel. McGowan v. Bd. of Elec. of Summit Cty., 157 Ohio St. 428 (1952). A congressional candidate challenged the Board of Elections’ decision to cancel her voter registration and remove her name from the ballot on the grounds that she was not a U.S. citizen. Ms. McGowan testified that she understandably did not know where she was born but honestly believed it was in Ohio because her mother always said she was born in Akron, even though other relatives said she was born in Ireland and “one uncle always compromised and claimed she was born on the boat.” The Ohio Supreme Court concluded that Ms. McGowan was a U.S. citizen either because she was born in Ohio or because of her father’s naturalization, and so restored her voter registration and candidacy. What does this history lesson tell us? Although our forefathers excluded entire groups of people from the franchise, some members of those groups fought for and won the right to vote, and we are grateful to them. But we must not be complacent. Our right to continued on page 5
937.222.7902
TRUSTEES MESSAGE: Reflections on the History of the Right to Vote continued from page 4 vote will never be fully secure because legislators can always enact laws that restrict it. We must remain vigilant and challenge such laws whenever they appear. And of course, the best way to support the right to vote is to exercise it. Please take a moment now to confirm that you are registered to vote, and take the time to vote this and every year!
Merle Wilberding Selected for Ohio Veterans Hall of Fame I
n October 2019, Merle Wilberding was selected for induction into the Ohio Veterans Hall of Fame, a State of Ohio program that honors veterans more for what they did after their military service than for what they did during their military service. Many other states have since established veterans’ hall of fame programs, including New York, Connecticut, Indiana, Kentucky, North Carolina, Arizona, and Pennsylvania. Governor Voinovich initiated the program in Ohio in 1992. Its charter members included six Ohio presidents who had previously served in the military, Astronauts Neil Armstrong, John Glenn, James Lovett, all the Ohio Medal of Honor winners, and has since inducted various leaders in business, philanthropy, education and community service. Wilberding is the first member of the Dayton Bar Association to ever be inducted into the Ohio Veterans Hall of Fame. A long-time member of the DBA, Merle is currently its Second Vice-President. On Wednesday, November 6th, there was a celebration dinner in Columbus. On Thursday, November 7th Governor Mike DeWine presided over the induction ceremony where they received their ribboned-medallions. On Friday November 8th, the inductees rode in the Veterans Day Parade in downtown Columbus. Then in early May they will be enshrined on a bronze plaque in the Vern Riffe State Office Tower. Merle Wilberding, served four years as an Army JAG Captain during the Vietnam War. He briefed and argued the Government’s case in the appeal of Lt. William Calley’s conviction for his role in the My Lai Massacre. After Merle’s discharge, he joined the Coolidge Wall law firm, where he continues to practice. He used his military experience representing the family of Marine LCpl Maria Lauterbach who was murdered by a fellow Marine whom she had charged with sexually assaulting her. With the support of many Congressmen and Congresswomen, Merle successfully pushed for changes in the Uniform Code of Military Justice to better protect victims of sexual assault. Merle works with the Law & Leadership Institute, which supports programs that promote diversity in law and leadership. He was a founding trustee of the Dayton Literary Peace Prize Foundation, which recognizes the power of the written word to promote world peace. He has authored seven books, including two children’s books funded by grants to provide supplemental materials for civics education to disadvantaged students. His community service has earned him many awards, including the Ramey Award for Distinguished Community Service from the Ohio State Bar Foundation, the Lloyd O’Hara Public Interest Law Award for Community Service, the Distinguished Alumnus of the Year Award by St. Mary’s University (Minnesota), and the Muse Machine Honoree Award. He is President-Elect of the Dayton Bar Association for a term commencing in June 2021. Merle has five degrees: B.A. from St. Mary’s University (Minnesota); J.D. from the University of Notre Dame; LL.M. (Tax) from George Washington University; M.B.A. from the University of Dayton; and M.L.I.S. from the University of Wisconsin - Milwaukee. Join us in congratulating Merle for this outstanding accomplishment! www.daybar.org
Major General (Ret.) Debbie Ashenhurst, Dir. of Veterans Services for Ohio (left); Merle Wilberding recieving plaque and medal from Governor Mike DeWine.
Ohio Veterans Hall of Fame Montgomery County, Ohio Charles A. Bassett II. Anna K. Beall Charles G. Bickham Sammy L. Davis* William E. DeFries Edward W. Delaet Dennis DeMolet Charity E. Earley Lawrence V. Fornes James P. Fortune Richard P. Hartmann Elaine Tisdel Herrick Dale M. Huffman Isaac James* Robert A. Kincses. Joseph G. Lapointe Jr.* Jess W. Martin Charles D. Metcalf John E. Moore Sr. Joe C. Paul* Harry A. Seifert Jr. James W. Snyder Tony Stein*
February 2020 Dayton Bar Briefs
5
Barristers of the Month
The Honorable M & David H. Mo Montgomery County Common Pleas Court
Pickrel Schaeffer & Ebeling Co., LPA
T
he Dayton Bar Association is fortunate to have so many leaders in its ranks committed to finding opportunities to give back to the community. Whether the contributions be through respectful advocacy, thoughtful counsel on complicated transactions, or investment of time in our youth, we identify such a leader each month to recognize. But in observance of Valentine’s Day, we recognize as Barrister(s) of the Month, a couple that represents the absolute best our community has to offer: David and the Honorable Mary Montgomery. Mary, even as a child, always knew she wanted to be a lawyer. Growing up, her grandmother had a basement full of books, and Mary loved spending her time in that personal library reading everything she could find. Whether it was To Kill a Mockingbird, or a biography about a U.S. Supreme Court Justice, Mary was hooked. David, on the other hand, went to college expecting to have a future in medicine. Enrolled at Miami University studying zoology, David was taking the usual pre-med courses to prep for the MCAT when a friend’s parent asked whether he had ever thought about the law. He gave it some thought, added a history major in his junior year, and sat for the LSAT. Even though he also took the MCAT, he did well enough on the LSAT that he thought a career in law may be more viable than he previously believed. He decided to give it a shot, applied to law school, and has never regretted his decision. Mary and David first met as students during their time at University of Dayton School of Law. Their first encounters were by happenstance: both of their last names started with “M,” so they often found themselves sitting next to each other in classes that had
assigned seating. As days went by, the two shared the same friend groups and became close friends themselves. Both worked hard in school, but Mary distinctly recalls that David would often ask for her notes whenever he “needed” to miss class to see a Bruce Springsteen concert. Mary was happy to share her notes with David, and soon the two would share a life together. After law school, Mary joined the Montgomery County Prosecutor’s Office, and David joined the law firm of Altick & Corwin, where he worked on municipal law, real estate transactions and a handful of criminal defense matters. In 2000, David joined Pickrel Schaeffer and Ebeling, where he now serves as a shareholder, and was soon thrown headfirst into an unprecedented transactional matter: the development of the Greene Towne Center. After practicing for only a couple of years, David found himself in a matter that would be transformational and challenging for any practitioner due to the number of “firsts” it involved: The Greene would be the first mixed-use development in the area, it would be the first time Greene County had ever made use of public-private funding, and it would be the first ever community entertainment district in the area at a time when only five or six had been developed across the state. The project, to say the least, was ambitious. David was able to help make the project a success by collaborating with engineers, architects, zoning professionals, developers, and the counsel of the interested parties. David credits this experience with teaching him the value in being direct and candid as a lawyer, rather than trying to hide the ball and play cloak and dagger games. He learned that sometimes
there is a time and place for being guarded,
but more often than not, a straightforward approach will often yield better results. As a result of David’s hard work (and, as David would point out, the hard work of so many others involved in the massive project), the entire community has benefited with a beloved social space. As David’s transactional practice took off, Mary found herself thriving in the courtroom. For twenty-one years, Mary served as an Assistant Prosecuting Attorney with the Montgomery County Prosecutor’s Office. She served as a Supervising Attorney at Care House where she prosecuted felony crimes involving physical and sexual abuse of children. She then became Intake Supervisor for the Grand Jury, before she was promoted to Criminal Division Trial Supervisor, where she trained and managed multiple assistant prosecuting attorneys on multiple judges’ criminal dockets. In March, 2014, Mary earned the position of Chief of the Civil Division, where she and her staff reprecontinued on page 7
6
Dayton Bar Briefs February 2020
937.222.7902
Mary E. Montgomery ontgomery sented the County and all of its departments and agencies, as well as the elected officials, in various administrative and civil matters, including civil defense litigation. Through her work in the Civil Division, Mary had the opportunity to appreciate the challenges unique to civil litigation. Specifically, Mary recalls how she and David would joke about how, prior to her work in the Civil Division, she never quite appreciated the experience of getting calls from clients at 4pm on a Friday with some dire emergency. Mary also recalls that serving in the Prosecutor’s Office gave her the opportunity to learn from the judge whose docket she spent the most time: Judge Dennis Langer. “Judge Langer was an inspiration for me, because you knew what to expect with him and you knew he expected nothing short of excellence from the attorneys before him. It forced me to David and Mary photographed with their children, Lily (11), Madeline (10), anticipate and William (5). issues in the matter I was working, and if we did not have answers for him, we would need to research and brief it. He made me a better attorney,” Mary recalled. She also learned the value of professionalism during her time in the Prosecutor’s Office. Often, Mary would be trying cases against some of the most diligent and talented defense lawyers in the community, and although trials could be intense, she learned that civility, above all else, is critical. Mary explained that “it was refreshing in many ways to see that in Dayton we could both advocate to the absolute best of our ability in really heated cases, but afterwards share laughs in the hallway and know our advocacy in the courtroom was never personal.” Last year, Mary transitioned to her new role of service to the community: the Montgomery County Common Pleas Court Bench. Sworn in last July, Mary has looked to Judge Langer’s
www.daybar.org
BARRISTERS OF THE MONTH: The Honorable Mary E. Montgomery & David H. Montgomery continued from page 6
example as she builds her own judicial career. She explained that what she “liked most about Judge Langer was that he was very smart, thoughtful, and calm. That’s what I try to emulate. So it has been a constant exercise in developing patience to work with people where they are.” As a result, Judge Montgomery encourages the attorneys in front of her to be direct and forthcoming about what they need from the Court to be able to try their case: “I respect and appreciate that for attorneys, life happens. So If we need to start a hearing an hour later because you have an emergency, or we need to end trial for the day by 5pm sharp so you can pick your children up from day care, let me know. We can find ways to work with you and accommodate. We have to be mindful. Life outside work exists, and we need to maintain a workable balance.” When it comes to sorting out schedules, the Montgomery’s are masters by necessity. Mary and David agree that the biggest challenge with being married to a lawyer is definitely scheduling. “Every week,” Mary explained, “David and I sit down at the table and plan out the week as if it is a Battleship game trying to account for any gap in our calendars. It is so important that we do this so that all of our kids are picked up on time, fed, and taken care of and so that we do not let our professional responsibilities fall through the cracks.” Mary and David certainly have enough to keep them busy. “Not only are we involved in a number of causes we care about, but in my practice I often have to attend zoning and community meetings that may not start until six or seven o’clock at night. When I first started practicing, I felt like I should bring the meeting minutes home just because it was so unbelievable that I was coming home at 1am,” David joked. But the benefits far outweigh the challenges. Both Mary and David agreed that when either one comes home after a long day, the other is able to completely empathize without need of explanation. Because both are smart and creative lawyers, they have been able to serve as one another’s “in house counsel” when someone
needs to bounce around an idea or talk through a nuanced issue. Giving back to the community has been an essential stewardship for the Montgomery’s. Shortly after getting married, both joined the Associates Board for the Dayton Art Institute. Although they were the youngest members of that board, they made the most of the opportunity get to know and work with some of our community’s leaders. Through this process, they learned how to give back. Since then, David has been active on the Miami Valley School Alumni Council, as a founding member, and where he has served as President for multiple years and help coach his daughter’s soccer team, while Mary has served as an Oakwood United Soccer Club Team Manager and a Girl Scout Troop Leader. Recently, she even spearheaded a grassroots effort to establish a new public park in the City of Oakwood, assisting with both the design and funding for what is now known as Cook Park. Perhaps the biggest contribution Mary and David have made to the community is their three wonderful children: Lily (11), Madeline (10), and William (5). David remarked that, as parents, he and Mary try to set rules and boundaries as best they can, but they still get a kick out of seeing their kids respond by exposing the logical fallacies in a given rule and putting forth their own counter-arguments. Lily, Madeline, and William have incredible role models to look up to at home, and as members of the Dayton Bar, Mary and David serve as powerful role models for us as well.
By Zachary S. Heck Co-Chair DBA Editorial Board, Taft Stettinius & Hollister LLP
February 2020 Dayton Bar Briefs
7
Diversity Issues
KING/THURGOOD:
The Intertwinement of Destiny I
t is utterly impossible to have a proper discussion about the Civil Rights Movement (“the movement”) and not mention Rev. Dr. Martin Luther King, Jr. However, it is equally challenging to discuss the movement and not consider how its overall mission of equality was only possible because of the many landmark victories of Thurgood Marshall. The legacy of both men are not just intertwined, but rather, somewhat dependent on the other. With each landmark victory by Marshall, a solid legal foundation was built for King to challenge segregation. In total, Marshall argued 32 cases before the Supreme Court of the United States- winning 29. Each victory achieved by Marshall established important precedent in the fight of equality for all. However, legal scholars widely consider the most impactful victory to be the historic ruling of the 1954 case of Brown v. Board of Education, which struck down the “separate but equal” doctrine established by the Supreme Court nearly 60 years earlier in Plessy v. Ferguson. The Brown case would serve as not only a catalyst for the expansion of the civil rights movement during the 1950s and 1960s, but also a substantive spark for the transformation of a young minister into a prominent civil rights leader. Now enters Dr. King. In 1954, Dr. King, who was only 25-years-old, was the pastor of the Dexter Avenue Baptist Church, where he had advocated for proclaimed ”Gandhi-like techniques of front-line marching and nonviolent resistance” to achieve equality1. In 1955, African-Americans in Montgomery, Alabama (and essentially everywhere else in America) were still required to sit in the back portion of buses and to yield their seats to white riders if the front half of the bus, which was reserved for whites, was full. On December 1, 1955, a seamstress by the name of Rosa Parks was commuting home on a bus from her job at a local department store. She was seated in the front row of the “colored section,” but when the white seats were filled; the bus driver, J. Fred Blake, asked Parks and three others to vacate their seats. All complied- except Parks. She was then arrested and subsequently fined $10, plus $4 in court fees. After her arrest, Parks contacted civil rights leader and union organizer E.D. Nixon. Nixon posted her bail and a discussion about her being a potential 8
Dayton Bar Briefs February 2020
By Brandon C. McClain, Recorder DBA Board of Trustee Treasurer & Diversity Issues Section Montgomery County Recorders Office
plaintiff in a legal challenge to the bus segregation ordinance ensued2. On December 4th, the Women’s Political Council, which was a group of African-American women passionate about civil rights, began circulating flyers announcing a boycott of the Montgomery bus system on December 5. That following day, approximately 40,000 AfricanAmericans- which was nearly 90% of the city’s bus riders- boycotted the busing system. That afternoon, African-American leaders from the city met to create the Montgomery Improvement Association (MIA), electing King as its president3. On December 8th, the MIA issued a formal list of demands: courteous treatment by bus operators; first-come, first-served seating for all, with blacks seating from the rear and whites from the front; and black bus operators on predominately black routes. The city refused their demands, prompting African-Americans to use taxi cabs rather than buses and participate in a MIA organized carpool system comprised of 300 cars organized. The year of 1956 would serve as a battleground in the war of equality4. Early 1956 would see the homes of King and Nixon bombed; injunctions obtained against the boycott and nearly 100 boycott leaders indicted for engaging in a conspiracy that interfered with lawful businesswith King ultimately being convicted and sentenced to pay $500 or serve 386 days in jail5. Nonetheless, the bus boycott continued.
continued on page 9
ENDNOTES:
Will Haygood, Martin Luther King, Thurgood Marshall and the Way to Justice. The Marshall Project. ( January 15, 2016) https://www.themarshallproject. org/2016/01/15/martin-luther-king-thurgood-marshall-and-the-way-to-justice. 2 History.com Editors, Montgomery Bus Boycott. The History Channel. ( June 26, 2019) https://www.history.com/topics/black-history/montgomery-bus-boycott. 3 Id. 4 Id. 5 Id. 1
937.222.7902
DIVERSITY ISSUES King/Thurgood: The Intertwinement of Destiny continued from page 8 On February 1st, two days after King’s house was bombed, a petition- which would eventually become the historic case of Browder v. Gayle- was filed in the U.S. District Court challenging the constitutionality of the Alabama state statutes and Montgomery city ordinances requiring the segregation of buses6. On June 5th, the District Court ruled segregation on Alabama’s intrastate buses was unconstitutional, citing Brown v. Board of Education as precedent for the verdict7. Despite the ruling, King urged the continuance of the Montgomery bus boycott until the ruling took effect. On November 13, 1956, the Supreme Court affirmed the lower court’s ruling and struck down all laws requiring segregated seating on public buses8. However, the boycott continued until the order physically arrived in Montgomery- leading the MIA to operate the boycott for an additional month. On December 20th, thirteen months after the boycott began, King called for the end of the bus boycott. The next day, early in the morning, King boarded an integrated bus with civil rights leaders Ralph Abernathy, Nixon, and Glenn Smiley9. King would not have won his first victory, the Montgomery bus boycott, if Marshall had not first won the Brown case. Marshall fought for equality in the courtroom- dedicating his life to the law. King fought for equality in the public- giving his life for the people. They were different; yet, they were the same. Both were fighters in the war of equality for all- a war still being fought today.
ENDNOTES:
Browder v. Gayle 142 F. Supp. 707. 7 Id at 716. 8 Browder v. Gayle, 352 U.S. 903. 9 Id. at Montgomery Bus Boycott. 6
www.daybar.org
February 2020
DBA Section Meetings Monday 3rd Noon | Juvenile Law @ CASA Meeting Room Juvenile Court Wednesday 5th Noon | Young Lawyers Division Topic: Jury Selection and Jury Trials with Dennis Lieberman 4pm | Estate Planning Trust & Probate Topic: Charitable Trusts/Classification and Creation with Ed Smith and Jack Pook Friday 7th 11:30am | Public Service & Congeniality @ The Old Courthouse Tuesday 11th Noon | Labor & Employment Topic: Managing Workplace Violence 5pm | Civil Practice & ADR @ Mudlick Tap House, 135 East 2nd St. Topic: Hot Topics in Civil Litigation Wednesday 12th Noon | Appellate Court Practice Thursday 13th Noon | Domestic Relations Noon | Real Property Wednesday 19th Noon | Criminal Law Thursday 20th Noon | Workers Comp & Social Security Friday 21 Noon | Diversity Issues @ Legal Aid Offices st
Contact Tyler to Join a DBA Section! twright@daybar.org
February 2020 Dayton Bar Briefs
9
For the Good
Photographed from left to right: Yazmin Soulati, Anjali Raju, Ben Campbell, Max Borghetti, and Ayah Mahmoud.
For the
Mock Trial in the Miami Valley
T
he Miami Valley is home to a thriving Mock Trial community, filled with both attorneys and students who are willing to dedicate their free time to the practice of law. For those of you who are unfamiliar with Mock Trial, high school students across Ohio are split into teams who will represent the plaintiff or the defendant, as well as the witnesses, in a mock trial. Their coaches, which are local attorneys familiar with trial practice, assist them in both the legal and mental aspects of their roles. The Ohio High School Mock Trial program creates a case surrounding a highly debated topic, and all students are required to fully flesh out their arguments for their assigned client. For example, the 2020 Ohio Mock Trial Case File requires students to examine restrictions on a student’s First Amendment right to free speech at a public school. The students will argue their positions over a maximum of three competitions: Districts, Regionals, and State. If a team wins all of their trials in Districts, they are permitted to compete in Regionals and if the team wins all of their trials in Regionals, they are permitted to compete at State. If at any point a team does not win their trial, their season ends. In addition to the Ohio High School Mock Trial Program, there are several local invitational competitions where students can test their skills and maybe even earn a trophy or two I had the opportunity to discuss the value and importance of Mock Trial with a number of coaches in Dayton and the surrounding areas, as well as one exceptionally bright student in Centerville. While each person cited a different reason for getting involved in Mock Trial, every single person emphasized the positive impact that Mock Trial has had on the students’ confidence.
Good
and effective citizens.” Bob’s goals for his team expand beyond each competition and into their future careers. He says that the purpose of Mock Trial is to give students the skills they need to succeed in any career, and that it’s not simply training for future lawyers. In particular, Bob reminisces about a student who impressed him with her ability to see the big picture: “. . . I had been coaching for several years [and] I was starting to get a little burnt-out. I was leading a practice one evening and recognized the students were stumbling over a complicated legal theory. To get from where they were to where they needed to be to understand the point was probably going to take about six steps of instruction on my part. I began to explain the first step and one of the students saw immediately where I going and jumped straight to the sixth step. Her insight reinvigorated me. As a side note, she went on to attend MIT.” Bob’s nearly twenty years of service to the Mock Trial students has impacted countless students’ lives. While Bob will be the first to tell you that he’s coached more doctors than lawyers, I have no doubt that there are attorneys within the Dayton Bar Association who would cite Coach Peterson as their introduction to a love for the legal community.
Thomas P. Whelley II.
Dayton Early College Academy
Sigurd “Bob” Peterson Alter High School
Bob, an ethics and compliance attorney at Wright Patterson, created the Mock Trial team at Alter High School in 2017. This was not his first experience coaching Mock Trial, however, as he had previously coached at his alumna mater, Centerville High School, from 1993-2008. During Bob’s high school years, he participated in the speech and debate team under Coach Ralph Bender. Bob states that Coach Bender and the speech and debate program helped both him and his friends prepare for life through practicing oral advocacy and logical arguments – two skills which are crucial to any career. He states that, while the debate skills would have been useful in any number of career choices, he knew within the first few months of his freshman year that he wanted to become a trial attorney. When asked what he hopes his students will learn through their involvement with Mock Trial, Bob states, “to know how to formulate rational arguments and present them coherently.” He feels this is crucial to every student’s experience in order for them “to be responsible adults 10
Dayton Bar Briefs February 2020
Tom, a litigation partner at Dinsmore & Shohl, is in his first year as coach for the Dayton Early College Academy Mock Trial team, which qualified for Regionals this year. He served as the team’s legal advisor for approximately 5-6 years prior; a role now held by Marty Beyer of Beyer Law. While Tom was not involved in Mock Trial or speech and debate as a high school student, he feels it is an invaluable way for students to learn to understand the law and how to speak before a group of lawyers and judges. Students are often developing their voice and their opinions in their high school years, and it’s good to have them learn to speak with confidence in front of people who would otherwise be intimidating. For Tom, he feels that the “most amazing part [of coaching Mock Trial] is to see how far the students’ progress as we learn the problem and test out various arguments and themes to see what works and what is most persuasive.” Tom expressed his appreciation for the Dayton Bar Association and Foundation for its support of high school continued on page 11
937.222.7902
Mock Trial. Specifically, Tom acknowledges the incredible contributions that Gary Schaengold has made to the organization of the Ohio High School Mock Trial program over the last thirty years.
Alysia Goss and Zachary Heck Centerville High School
Alysia, a Montgomery County Public Defender, and Zach, a privacy and data security attorney at Taft Stettinius & Hollister, jointly coach Centerville’s Mock Trial team. Each graduated from Centerville High School and participated in Mock Trial during law school, and each emphasize the importance of the skills that Mock Trial teaches students. “Mock Trial gives students a window to the adult world,” Zach says. Alysia elaborates on this idea, stating that “[the] high school kids are expected to act professionally, think critically, and take responsibility for their work.” These skills are invaluable to a student’s growth, regardless of what career their future holds. For Alysia, she hopes that students will not only learn these crucial life skills, but that they’ll also gain an understanding of their individual rights under the law. She states that the Mock Trial competition cases often touch on topics such as the right to be free from unlawful searches and, with this year, the right of freedom of speech. Alysia also focuses on the specific skills that the students learn regarding editing their work, graciously giving and receiving feedback from other students, and thinking on their feet. She says that the students have “consistently impressed” her with their ability to understand the case well enough to adapt their arguments in real time in the event of evidentiary issues. When asked whether there was a particular moment that stood out to her in her coaching career, she states: “There was a time a student dropped out of mock trial after their team moved on from districts. The rules would not permit another student to join that particular team for regionals. One student decided that he would jump in and take over the former member’s roles in addition to his. The student had only a few weeks to prepare, but ended up competing at regionals as an attorney for both sides of the case. That team ended up winning at regionals and went on to the State competition.”
www.daybar.org
FOR THE GOOD: Mock Trial in the Miami Valley continued from page 10 She feels that coaching her students also assists in her own practice. “Taking high school kids and teaching them basic fundamentals of evidence and trial procedure is the best way for me to learn as well.” Alysia also wants to thank the many legal professionals and judges who have volunteered their time to practice with the students, judge a scrimmage, and/or judge a competition.
Anjali Raju Student at Centerville High School
Perhaps the person who can speak to the importance of Mock Trial in a high school student’s life is an actual student, such as Anjali, the Senior Associate Captain of Centerville High School’s Mock Trial team. Anjali is a senior at Centerville who joined the Mock Trial team her freshman year in order to get an idea of what it would be like to be a lawyer. While Anjali later fell in love with biology and the practice of pediatric radiology, she feels that no other extracurricular activity could better prepare her for a career in any field. Anjali began her freshman year as an introvert, being a bit too nervous to use her voice with confidence around older students or teachers. She smiles as she recounts her initial fears in joining the team and how those fears were quickly squashed by the warm welcome she received from the upper-level students. Older students embraced her into their team, and also their friend groups, and Anjali grew in confidence having their support and the support of her coaches, Alysia and Zach. Now that Anjali is a senior, she makes an effort to include the younger students in her circles as well. The friendships and connections that she has made through Mock Trial have been lasting, with many of the since-graduated students returning to visit her and the team from college and to help with scrimmages and practices. This year, Anjali earned a trophy and states that it’s not only exciting to win a trophy yourself, but that it’s great to be able to cheer on your friends in their successes, too. Anjali and her teammates have plenty to celebrate, as all four Centerville Mock Trial teams were successful at Districts and are moving onto compete in Regionals. By Alexandra Laine DBA Editorial Board, Taft Stettinius & Hollister LLP
February 2020 Dayton Bar Briefs
11
C ontinuing L egal E ducation
Probate Law 2020 DBA Annual
Friday, March 13, 2020 Sinclair Community College, Bldg 12 8:30am - 4:30pm | 6.5 General Hrs EARLY BIRD RATE SAVE $25! Register by March 6th M $215 | NM $300 | P$30 Register after March 6th M $240 | NM $325 | P$30 Printed Materials $30 order by March 6th *Electronic materials will be available at no cost.
Institute
Agenda: • The SECURE ACT: New Realm for IRA Estate Planning • Firearms: Mental Health, Access and Transfer Issues • Ethical Issues in Probate Practice • Law Update • Traditional “Hour of Power” from the Court
Thank You to Our Sponsor!
TO REGISTER: www.daybar.org/event/2020dbaprobatelaw
February 2020
March 2020
Wed. February 5 | 1:00 - 4:15pm *3.0 Total Hrs = 2.5 Prof Conduct Hrs + 0.5 Gen. Hr
Wed. March 4 | 1:00 - 4:15pm | 3.0 Gen. Hrs
M $105 | NM $150 | P$0 Speaker: Debra S. Austin, J.D., Ph.D., Prof. of the Practice Univ. of Denver College of Law
M $105 | NM $150 | P$0 Speakers: Pete Certo, Bob Huffman, Sarah Worley, David Brannon and Kevin Bowman
Wed. February 12 | 9:00 - 12:15pm | 3.0 Gen. Hrs
Wed. March 11 | 9:00 - 12:15pm | 3.0 Gen. Hrs
M $105 | NM $150 | P $0 Speaker: Judge Dennis J. Langer, Montgomery County Common Pleas Court
M $105 | NM $150 | P $0 Speaker: Judge Dennis J. Langer, Montgomery County Common Pleas Court
Well-Being Skills for the Effective Lawyer (Video Replay)
2019 Judge Langer Criminal Law Update (Video Replay)
The Anatomy of a Will Contest (Video Replay)
2019 Judge Langer Criminal Law Update (Video Replay)
Wed. February 19 |1:00 - 4:15pm | 3.0 Prof. Conduct Hrs
Fri. March 13 | 8:30 - 4:30pm | 6.5 Gen. Hrs (credit is pending)
M $105 | NM $150 | P$0 Speakers: John Ruffolo, DBA Bar Counsel; Tabitha Justice, Subashi & Wildermuth; Mark A. Tuss, Law Offices of Mark A. Tuss; Jeff Hazlett, DBA Ethics & Grievance Section
Sinclair Community College, Building 12 EARLY BIRD RATE Register by March 6th : 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 ending March 6th.
2019 Ethics Case Law Review and New Advisory Opinions (Video Replay)
2020 DBA Annual Probate Law Institute
Wed. February 26 | 9:00 - 11:00am | 2.0 Gen. Hrs
Notary: A Breakdown of S.B. 263 (Video Replay)
M $65 | NM $90 | P $0 Speakers: Allison DeSantis, Director of Bus. Svcs & Deputy Asst. Secretary, Ohio Fred L. Young, Shareholder, Green and Green Lawyers
12
Dayton Bar Briefs February 2020
Wed. March 18 | 1:00 - 4:15pm | 3.0 Gen. Hrs
Business Law Basics (Video Replay) M $105 | NM $150 | P $0 Speaker: Zachary B. White, Coolidge Wall Co., LPA
937.222.7902
DBA Volunteers
3
rd Annual
DBAVolunteer Day Saturday, February 22, 2020 9:00-12:00pm The Foodbank Dayton 56 Armor Pl., Dayton, OH 45417 We’re fighting hunger with The Foodbank!
The DBA is Partnering this Year with the
Ohio Women's Bar Association - OWBA for this Special Event!
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.
Volunteer with the DBA on Saturday, February 22, 2020 from 9:00-12:00pm to help stuff backpacks and write cheery notes to send to children. Help lead the fight against hunger!
About The Foodbank Dayton:
For More Information Contact:
Chris Albrektson, DBA Assistant Executive Director calbrektson@daybar.org | 937.222.7902 www.daybar.org
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 Foodbank’s mission to end hunger. February 2020 Dayton Bar Briefs
13
Labor & Employment
By Kristina E. Curry Labor & Employment Section, Pickrel Schaeffer & Ebeling, Co., LPA
Legal Updates on Employer Confidentiality Rules During Workplace Investigations: Protecting Employees AND Employers O
n December 16, 2019, the National Labor Relations Board (“NLRB”), in Apogee Retail LLC d/b/a Unique Thrift Store (“Apogee”), held that employer rules that require employees to maintain confidentiality during investigations of employee misconduct are lawful under the National Labor Relations Act, (“NLRA”). The Board overruled its holding in Banner Estrella Medical Center (2015), which required a case-by-case determination of whether employers could mandate confidentiality during workplace investigations. The Banner standard required employers to show specific evidence that witnesses in an investigation required protection, that evidence was in danger of being destroyed, or that testimony was actually in danger of being fabricated. While the Banner test had sought to protect the rights of employees to discuss the terms and conditions of their employment, the Apogee standard recognizes both the need to protect employees from undue influence during an investigation, as well as the employer’s interest in conducting a fair investigation that leads to the disclosure of all facts and circumstances. The Board stated, “Confidentiality assurances during an ongoing investigation play a key role in serving both the interests of employers and employees.” In Apogee, the Board rejected the Banner test as having “abandoned its obligation to balance employee and employer interests” by shifting the burden on the employer to prove that its own interest in a particular investigation outweighed the interests of employees’ 14
Dayton Bar Briefs February 2020
interests as it pertained to Section 7 rights. Instead, the Board in Apogee applied the standards it set forth in Boeing Company (2017). In Boeing, the Board overturned prior rulings holding employer work rules must be analyzed in light of whether a worker would interpret a rule as restricting NLRA Section 7 provisions guaranteeing to workers “the right….to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Boeing held that work rules that require employees to keep ongoing investigation matters confidential do not interfere with employee’s right to engage in concerted activity when balanced against employer’s compelling business justifications. Applying the Boeing analysis, Apogee held employers may lawfully establish work rules that require employees to refrain from discussing matters or revealing information pertaining to any investigation of employee misconduct while the investigation is open and ongoing. The Board set forth the most compelling reasons underlying an employer’s need for confidentiality during an ongoing investigation: (1) to ensure the integrity of the investigation, (2) to obtain and preserve evidence while employees’ recollection of relevant events is fresh, (3) to encourage prompt reporting of a range of potential workplace issues—unsafe conditions or practices, bullying, sexual harassment, harassment based on race or religion or national origin, criminal misconduct, and so forth—without employee fear of retaliation,
and (4) to protect employees from dissemination of their sensitive personal information. The Board concluded that these interests could not be served under Banner, because employers were required to disclose to employees that it could not guarantee confidentiality. This requirement itself might have been “enough to chill employees into silence.” Furthermore, “without an investigative confidentiality rule, employees would have no defense against pressure—potentially intense pressure, even threats—from other employees to reveal what was asked and said. An investigative confidentiality rule gives employees a plausible defense against such pressure: “Sorry. I can’t talk about it. If I did, I’d get fired!” In addition to providing employees with a defense against pressure to reveal what they know about an investigation to others, even potentially to the person that the employee has lodged a complaint against, the Board acknowledged that investigations often reveal other sensitive employee information, such as allegations of substance abuse, improper computer and internet usage, allegations of theft, violence, sabotage, or embezzlement. Employers should make clear to all employees that it will not only protect the employee’s confidentiality in having made an allegation against another employee but will enforce confidentiality rules throughout an investigation. This is particularly important during employer investigations of sexual harassment, discrimination complaints and reports of safety violations in the workplace.
937.222.7902
What's Happening@ the DBA For Up-to-Date DBA Event Info visit daybar.org
February is DBA Member Appreciation Month!
WE
OUR MEMBERS
Are you making the most of your DBA Membership?
February
7 12:00pm
Chancery Club Luncheon @ The Old Courthouse
15
Wills for Heroes @ FOP Hall 4275 Powell Rd., Huber Heights, OH
17 & 19 9:00am
Workplace Safety @ DBA Offices
21 11:30am
Popcorn, Pizza and a Movie @ the Court : "A Few Good Men" @ Judge Wiseman's CourtRoom
22 9:00am
3rd Annual Volunteer Day @ The FoodBank Dayton
26 5:00pm
DBA Mentor/Mentee Event @ DBA Offices
28 7:00am
Coffee & Conversation @ Boster Stoker Downtown
8:30am training 10-2pm appointments
www.daybar.org
Raffle lunch for 2 at Boosalis. Roundtable discussion and Boosalis will also be catering.
Attorney's and legal professionals are invited to volunteer for these events.
FREE training for members and their staff via Dayton Police Department.
You can't handle the truth...or the fun! Join us as gather and watch this 90s classic film.
Join us as we partner with the OWBA to pack backpacks & fill boxes of food for those in need.
More info to follow.
Meet up with your fellow colleagues and friends for coffee and delicious pastries. February 2020 Dayton Bar Briefs
15
Cori Haper and Marissa Weatherly at Kick-Off of the Diverse Law Student Mentoring Program
Kick-Off of the Diverse Law Student Mentoring Program
By Cori R. Haper Thompson Hine LLP
O
n January 15, 2020, students and lawyers from the Dayton legal community met at the University of Dayton School of Law to kick-off the Diverse Law Student Mentoring Program for the Spring 2020 semester. 16 mentoring pairs will be participating in the program. The mentoring program was organized through the Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable and UDSL, and is led by Marissa Weatherly, a 3L law student at UDSL, and Cori Haper, a partner at Thompson Hine LLP. Julie Zink, Professor and Assistant Dean of Diversity, Equity, and Inclusion, is the UDSL faculty sponsor of the mentoring program and was responsible for arranging the venue and delicious food. The purpose of the mentoring program is to provide encouragement, support, and training to diverse law students, while strengthening their ties to Dayton and building their professional relationship in the Dayton community. Andy Strauss, Dean of UDSL, spoke about the importance of the mentoring program for UDSL diverse law students. Wray Blattner, Partner at Thompson Hine LLP, spoke about the legal roundtable’s commitment to increasing the diversity, equity, and inclusion of the Dayton legal community through the mentoring program and other initiatives. Marissa and Cori explained how the program works and expectations for participating in the program. Mentoring pairs are asked to commit to a minimum of one hour per month in mentoring activities, and to maintain consistent communication throughout the program. Each month, the mentoring pairs will receive an email with a topic of discussion, along with talking points and/or activities. The curriculum includes topics such as branding and self-awareness, academic success, public speaking & effective communication, networking, and ethical obligations. Following the presentation, students and lawyers participated in a table talk discussion about the qualities that contribute to a successful mentor and mentee relationship. “The key to developing inclusive spaces within the legal field and creating a pipeline of diverse lawyers and judicial professionals lies within mentorship programs. While it is important to create channels for aspiring lawyers of color to apply to law school and gain a foothold within the legal profession, mentoring is a critical component to retain lawyers of color and ensure their success. The secret of mentoring lies within the advice provided from established lawyers who assist early-career lawyers or law students in navigating the legal field.� ABA, Inclusive Legal Spaces: The Importance of Diverse Mentoring https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2018/ inclusive-legal-spaces-the-importance-of-diverse-mentoring
16
Dayton Bar Briefs February 2020
937.222.7902
www.daybar.org
February 2020 Dayton Bar Briefs
17
DBA Rising Star
Martin W. Gehres Esq. Assistant City Attorney for the City of Dayton “Dayton is my home and my first love.”
I
f you’ve ever had the joy of meeting Martin “Marty” Gehres, then you’re familiar with his booming laugh, wide smile, and his love for the City of Dayton. Marty is a Daytonian in the truest sense of the word, having lived within the bounds of Dayton proper for twenty-six of his nearly thirty years. His only detour was to attend Ohio University for his undergraduate degree and a brief stop in Hamilton, Montana. While in Athens, he met his now wife, Julie Forman, an elementary school teacher who teaches English as a second language. The pair returned to Dayton following graduation where they reside today. Perhaps the only love more ingrained in Marty than the love of Dayton is his love of the law. Marty didn’t “discover” a love for the law as many of us did, but rather he was born into it. Marty’s mother, Virginia Platt-Gehres, and father, Judge Daniel Gehres, inspired Marty to become a lawyer. Virginia worked in various public service roles throughout her career, before ultimately serving and retiring from the Child Protection Unit for the Montgomery County Prosecutor’s Office. His father was elected to the Dayton Municipal Court in 1988, and Marty fondly remembers growing up in Judge Gehres’ toy filled chambers. Not only did his parents practice public service and the law, but they emphasized the importance of Catholic social services and giving back to those persons who are less fortunate than yourself. These values were instilled in Marty at a young age and, during his time at the University of Dayton School of Law (“UDSL”), he decided he would pursue a career in public service. Marty graduated cum laude from UDSL in 2017. Following his graduation, his former Evidence professor, the City Attorney, Barbara J. Doseck, approached Marty about applying for a position with the City of Dayton. Marty applied without hesitation because he knew he wanted to give back to the community that raised him. Marty speaks about his role at the City with love and genuine happiness. “Nearly every day at City Hall there is something new that surprises me,” he muses. Through the City, Marty has had the opportunity to prosecute housing cases, present neighborhood grievances to the Division of Liquor Control, draft press releases, argue before the Second District Court of Appeals, litigate personal injury claims, negotiate contracts, and develop policies concerning electric transportation devices. “Working for the City requires you to be a jack of all trades.” One of Marty’s favorite moments with the City was drafting legislation concerning the decriminalization of marijuana (which has been copied in Cincinnati, Columbus, and soon to be Cleveland) and speaking about such legislation on the news. While he would never brag on himself, it’s clear to anyone who has watched his interviews that he’s a natural presenter. He mentions another instance where he gave a presentation to a neighborhood association concerning the liquor licensing process. “Explaining the liquor [licensing] process and how vital it is for residents to assist the City in objecting to problematic locations was extremely fulfilling,” he says. Marty has also had a hand in shaping many of the projects revitalizing and rebuilding downtown Dayton. For him, seeing the project completed is only the start. His true reward comes with seeing our community enjoy a new facility or Photographed from top to bottom, left to right: event and knowing that he was able to help make it a reality. 1. Marty being interviewed Marty aims to utilize his education and his expertise to 2. Marty and Julie, his wife 3. Judge Daniel Gehres, Marty, and Virginia Platt-Gehres help residents see Dayton in the same light that he does. Dayton is no stranger to hardship. In the past year, at Marty’s swearing in. we suffered numerous tragedies which each alone could 4. Marty, Judge Daniel Gehres, Frank Gehres and Eddie have caused a larger city to falter. But, as Marty states, Gehres (his brothers and dad) “Daytonians are hard-working and resilient people. We are 5. Julie, Marty, and their pal Baker some of the most genuinely nice and welcoming people in continued on page 19 18
Dayton Bar Briefs February 2020
937.222.7902
DBA RISING STAR: MARTIN W. GEHRES ESQ. continued from page 18
DAILY COURT REPORTER www.DailyCourt.com
Miami Valley's Choice For Effective, Afforable, Legal Publishing! See for yourself in your complimentary DBA edition of the Daily Court Reporter For More Information: dcr120@dailycourt.com
the country.” We banded together as a community and overcame these tragedies. It’s clear that Marty feels a sense of pride in not only his City, but also our community. This combination of resilience and kindness has expanded into the legal community, he feels, making Dayton’s Bar Association a joy to be a part of. The City is full of attorneys who are willing to do their part to make Dayton an even better place for everyone to live and work. As a final note, if you’re ever curious about the history of the City or where you should grab lunch, you should reach out to Marty. He knows all of Dayton’s hidden gems and he’d be thrilled to share his love of the City with you. Who knows? Marty, Julie, and the four-legged addition to their family, Baker (after the Baker Center in Athens, Ohio), might even join you at Second Street Market for Saturday brunch.
DAYTON Bar Association
HERBERT M. EIKENBARY
Trust
What is The Eikenbary Trust? The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance. Individual loans, are available up to $6,000 at 4% interest, while grants up to $4000 are also available.
By Alexandra Laine DBA Editorial Board, Taft Stettinius & Hollister LLP
www.daybar.org
To Apply: Jennifer Otchy,DBA Executive Director Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org
February 2020 Dayton Bar Briefs
19
Workers' Comp & Social Security
Covering Yourself to Carry M
any lawyers find themselves in perilous situations regularly. Whether it’s a guardian ad litem visiting a child in a troubled or violent home, or an attorney meeting with a client or potential witness in a less than savory area of town, we are often faced with situations where diligent representation of a client also means possibly defending ourselves from harm. Years ago, when I was a much younger (and pregnant) attorney, I visited a client at home to prepare her for a deposition, as she had no transportation or money to get to my office. I was unfamiliar with the area, and quickly found myself questioning my safety. I hurriedly sent notes to both my office and my husband making sure they knew where I was, and to check in on me if they didn’t hear from me within a few hours. This situation isn’t unfamiliar to many of you, and some of you may find the need to carry a gun to protect yourself if you find yourself in these situations on a regular basis. While you may feel more physically safe while carrying, let’s make sure you are on the right side of the law when you carry. Before you obtain a license to carry a concealed handgun in Ohio, you will need proof of your competency certification, and will need to complete an application, which is submitted to the sheriff in the county where you reside. There are multiple methods for obtaining your certification, which are more fully set forth by the Ohio Attorney General in the Ohio Attorney General’s Concealed Carry Laws Manual.1 Most of these involve taking a safety course by a certified instructor. A number of factors play into approval of the application, including your mental competency, civil protection orders, and current and past criminal charges and convictions, among others. The sheriff must approve or issue a denial of your license within 45 days of receiving the completed application, and the license is good for 5 years. Beware, once you are approved to carry a firearm, you do not have an open license to carry a firearm at all times: Places such as police stations, correctional institutions, courthouses, schools and a number of other government buildings are “Forbidden Carry Zones”- Leave your firearm at home when visiting. You may not consume beer or intoxicating liquor before carrying a concealed firearm. If you are stopped in a traffic stop, you MUST promptly inform the officer that you have a concealed firearm, even if it is not on your person, but it is inside the vehicle, and keep your hands in plain sight at all times during the stop.
20
Dayton Bar Briefs February 2020
By Jennifer M. Brill Co-Chair Workers' Comp & Social Security Section, Hunter Brill, LLC
When visiting a place of business, such as a client’s corporate office, be aware that employers may prohibit the presence of firearms on their property. Just because you have a concealed carry license in Ohio, you may not be clear to carry in other states. You can check for states with reciprocity on the Ohio Attorney General’s website. Ohio’s concealed carry laws do not regulate “open carry”. If you feel that carrying a firearm is necessary in your practice, be sure to review all of the regulations that apply to carrying and are properly licensed. ENDNOTES:
https://www.ohioattorneygeneral.gov/Files/Publications-Files/Publications-for-LawEnforcement/Concealed-Carry-Publications/Concealed-Carry-Laws-Manual%28PDF%29.aspx
1
Earn CLE Anytime, Anywhere. 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!
Daybar.ce21.com
937.222.7902
Dayton Bar Foundation
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -DETACH AND RETURN- - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
www.daybar.org
February 2020 Dayton Bar Briefs
21
From the Judges Desk
RESILIENCE
By The Honorable Mary E. Montgomery Montgomery County Common Pleas Court
I
was asked to write this article in late December 2019, for publication in the February 2020 Bar Briefs. I will admit, I struggled with this task. Do I write an article about substantive law or an article on law firm security and lawyer safety, which is the topic for this month’s edition? Neither sounded like a terribly exciting read. As I pondered the topic, I could not help but think about the tragic events of 2019 that befell our city, as well as our nation, from the Memorial Day Tornadoes, to the mass shooting in the Oregon District, to the reemergence of the unbearable and heart-wrenching video of a three year old Syrian boy’s lifeless body lying on a beach with waves crashing around him. As a mother, that image is forever haunting. As a human being, it’s unimaginable. His tiny body and tiny shoes and tiny life cut short for a terribly unknown reason. Personally, in 2019, I had eight, yes EIGHT, friends diagnosed with breast cancer, while my own mother hit the infamous five year mark of being cancer free in December 2019. By all accounts, 2019 was a hard year for so many. By the time you read this article, we’ll be two months in to 2020 and I can only hope breathing a deep sigh that things really will be better this year. And that’s what makes us resilient - taking a deep breath and then moving forward. Resilience is defined as “the capacity to recover quickly from difficulties; toughness,” or “the capability of a strained body to recover its size and shape after deformation caused especially by compressive stress.” Wow! That’s one heck of a descriptive definition. I wish that I could impress the importance of resilience on those that come into my courtroom. Resilience does not mean that a person does
22
not experience or suffer through difficulties or stress, but rather they learn the process of adapting in the face of adversity and find again the ability to live their life and be buoyed from the difficult event and the hope for a better tomorrow. It’s a matter of deciding to be a survivor not a victim. I often tell defendants that they are at a crossroad and they must now decide if they are going to let their past define them or whether they’re going to define their own path. I firmly believe in the old adage, “where there’s a will, there’s a way.” Possibly because I’m still new to the bench, possibly because I truly believe that no matter where you came from or what you faced, you can do anything you put your mind to, or possibly because I’m naively and hopelessly optimistic about the future, but I think there is hope for mankind, in spite of the tragedies that seem to consume 27 of the 30 minutes of the Nightly News each evening. And yes, I may be the only person left on earth that still watches cable news at 6:30pm, but I do! Lawyers are some of the most resilient people that I know. I know what it’s like to be a trial attorney and to pour your heart and soul into a case, to spend sleepless nights going over trial strategy for the next day and then bleary-eyed and exhausted, stand in a courtroom before a judge and jury and do your job to the absolute best of your abilities. Not only are lawyers resilient, but they have to teach, in a way, their clients to be resilient as well. Let’s face it, in this profession, not everyone comes out a winner and we have to teach our clients to expect the worst and be happy, at times, with a mediocre best, or to simply learn to compromise. That is not an easy task, but one lawyers are tasked with daily. The very nature of our adversarial job makes us become resilient. Resilience is, after all, one of our primary survival strategies! In the few months I have sat on the bench, I have been warmed by the congeniality and professionalism of the attorneys, both civil and criminal, and not only with each other, but with their clients and in handling the transition from Judge Langer to a brand new Judge. I have welcomed debate and differing opinions and have not been afraid to change my mind and be swayed by a legally sound argument. Before, I could always just blame the judge for whatever decision was made on a case. Now, I am the one having to make that last and final decision and trusting that the Court of Appeals agrees! My colleagues, that is hard! But isn’t that what resilience is all about? Life is hard. Sometimes you’re right and sometimes you’re just dead wrong. If it’s the latter, you learn from it and have to move on. No point in wallowing in the misery. 2020 to me is all about being resilient. I hope it is for you, too.
www.daybar.org
23
M Members embers O OnnTThe heM Move ove Graydon Head & Ritchey announces the election of Patricia L. Hill to the Firm's Partnership, effective January 1, 2020.
HILL
Dinsmore & Shohl LLP is pleased to announce Gregory Kaskey has joined its 17-member board of directors, taking the Dayton seat vacated by Partner Tim Hoffman. Kaskey’s addition to the board is one of several changes to firm leadership, which has become significantly younger and more diverse in KASKEY 2020. Kaskey is also joined by new board members Ashley Pack in Southern West Virginia, Donna Perry in Louisville, Kentucky and new Labor & Employment Department Chair Allison Goico. Dinsmore Chairman and Managing Partner George Vincent, who began his fifth term this month, called it a “whole generational shift.”
BRUSH
MILLER
ANDRESS
Miller Walker & Brush is extremely proud to announce that Michael Brush, Michael Miller and Jessica Andress have been honored by Super Lawyers for 2020. Brush was selected to the 2020 Ohio Super Lawyers list for Criminal Law for the 3rd year in a row. Miller was recognized by the Ohio Super Lawyers list for Family Law for his 12th consecutive year. Andress was selected to the 2020 Ohio Rising Stars list in only her first year with the firm. Only 5% of attorneys in Ohio receive these prestigious honors. Each honor is reserved for those lawyers who exhibit excellence in practice.
Effective Jan. 1, 2020, Briggs and Morgan, a 140-attorney Minneapolis/ St. Paul firm with roots dating back to 1882, has joined the Taft law firm, founded in 1885. With the addition of Briggs, Taft is now comprised of more than 600 lawyers across 11 U.S. offices, primarily located in the Midwest. First announced in August 2019, the combination of Briggs and Taft is highly strategic and strengthens Taft’s foothold in the Midwest, bringing additional talent and resources to both firms. Briggs most recently was ranked as the fifth largest law firm in the Twin Cities area, known for its strength in business, finance and real estate law, energy and litigation. Consistent with Taft’s firm-wide growth strategy focused on a modern culture and client service, this expansion into the rapidly changing and fluid Minneapolis market creates a stronger presence in one of the most important areas in the Midwest.
KELLEHER
SANDNER
SCHAEFFER
SCHWELLER
STORAR
WAHL
Pickrel, Schaeffer and Ebeling is pleased to announce that Katie Wahl has been named a Principal with the firm. Katie has been practicing law for over 15 years and focuses on business and corporate law, as well as estate planning, probate (including estate administration and guardianships) and Medicaid planning. As a corporate and business lawyer, Katie focuses on the formation of new entities, assisting clients with the sale or purchase of a business, and succession planning for a business and its owners. Katie also has extensive experience in working with non-profit entities to obtain and maintain their non-profit status. PS&E is also pleased to announce that five of our attorneys have been selected as 2020 Ohio Super Lawyers as published in the Ohio Super Lawyer Magazine. Those selected include James W. Kelleher, Michael W. Sandner, Alan B. Schaeffer, Donald G. Schweller and Andrew C. Storar. Each year, no more than five percent of attorneys in the state of Ohio are chosen to be listed as an Ohio Super Lawyer.
Advertiser Index Support those who support the works of the DBA! Check out these advertisers. For reasonably priced DBA Ad Rates view the DBA Media Kit Online: https://bit.ly/2mguP8m
Daily Court Reporter.....................................................19 Eikenbary Trust............................................................19 Ferneding Insurance....................................................20 National Processing Solutions........................................9 OBLIC..............................................................back cover R.L. Emmons & Associates.............................................27 Rogers McNay Insurance...............................................11 Trisha M. Duff - Mediations...........................................19
24
Dayton Bar Briefs February 2020
937.222.7902
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 via email and are subject to editing. These accouncements are printed as space is available. Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org
DBA Classifiedss AXTELL
BLATTNER
BUTLER
Classified ads are accepted each month, September through Summer. Copy and payment must be received by the first day of the month preceding the month of publication. BAR BRIEFS EDITORIAL BOARD reserves the right to refuse any ad. Classified ads of greater length are allowed. Members: $20 per 25 words | NonMembers: $30 per 25 words Additional $5 for DBA reply box ATTORNEY Rogers & Greenberg, LLP, a well-established, medium-sized downtown Dayton law firm is seeking an Ohio licensed attorney with some experience in the business, estate planning and real estate practices of law. Please send a resume including references to: Michelle S. Vollmar, Rogers & Greenberg LLP 40 N. Main St., Suite 2160, Dayton, OH 45423 Email: mvollmar@rogersgreenberg.com
CONWAY
CORNETT
CURRY
DAVIS
FERRANTE
HAAKER
EMPLOYEE ENGAGEMENT SURVEYS, CLIENT SATISFACTION SURVEYS. Customizable, Confidential, Powerful analytics. Enhances firm focus. Antonette Lucente, Blue Gill Consulting Group LLC Antonette@bgfishpond.com
LOCAL COURT RULES HERR
KING
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.
KNOTH
MEDIATION LEVY
LIENESCH
NEUHARDT
Dennis J. Langer Retired Common Pleas Judge LangerMediation.com | 937-367-4776
MEDIATION/ARBITRATION
SWARTZ NEUHARDT
William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com
SHERK
Thompson Hine LLP is pleased to announce that 116 of its lawyers are recognized in The Best Lawyers in America© 2020. Lawyers are selected for the list based on votes received in a survey of their peers. Lawyers cast more than 7.4 million votes on the legal abilities of other lawyers in their practice areas. Additionally, 53 Thompson Hine lawyers have been included on the Best Lawyers® list for 10 years or longer, as indicated below. The Thompson Hine Dayton lawyers included in the 2020 edition are:
Stephen J. Axtell* Francesco A. Ferrante* Wray Blattner* Christine M. Haaker Jim Butler J. Michael Herr* Mark A. Conway* Scott A. King Susan C. Cornett Thomas A. Knoth Robert M. Curry* Mark P. Levy* Steven J. Davis Theodore D. Lienesch*
www.daybar.org
David A. Neuhardt* Arik A. Sherk* Sharen Swartz Neuhardt*
NEED A MEDIATOR/ARBITRATOR? JOHN M. MEAGHER, Judge (Retired) Adjustable fees 25 Years Resulting in 2,100+ Mediations 50+ Arbitrations Call 937.604.4840 Jmeagher2@gmail.com
OFFICE SPACE 101 Southmoor Circle, NW (Stroop and Far Hills). One office available at $400/month. Furnished or unfurnished. Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area and conference room. Email dave@SchmidtDayton.com for info and pics. February 2020 Dayton Bar Briefs
25
L aw -R elated O rganizations Dayton Bar Foundation
Help Build Our Foundation. T T
he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:
- Greater Dayton Volunteer Lawyers Project (GDVLP)
- Advocates for Basic Legal Equality (ABLE)
- Life Essentials Guardianship Program
- Legal Aid of Western Ohio (LAWO)
Write, Call or Email: Jennifer Otchy, Executive Director Dayton Bar Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: jotchy@daybar.org
- Law & Leadership Institute - Wills for Heroes
University of Dayton School of Law
26
Dayton Bar Briefs February 2020
937.222.7902
Greater Dayton Volunteer Lawyer Project
Are You Interested In Bankruptcy Law? (No Experience Required – And Not Just for Attorneys!) By Sharon Igli, Paralegal Greater Dayton Volunteer Lawyers Project
M
any in our community face daunting debt. Even those who have always managed their finances carefully can, perhaps because of a medical emergency, find themselves overwhelmed by creditors. Others facing a financial crisis might turn to a payday lender, or a lender that holds title to their vehicle, for short-term funding - the debtor then may become overwhelmed by the payments and related interest and fees. Some may have lost their driver’s license because of judgments taken against them, and can only reinstate driving privileges if they eliminate the obligation through the bankruptcy process. For low-income individuals in the Miami Valley, the Greater Dayton Volunteer Lawyers Project (GDVLP) has options for you to learn about bankruptcy law and provide assistance to those facing circumstances such as these. As a full-time paralegal at the GDVLP, I work with volunteer attorneys to assist clients in preparing to file for Chapter 7 bankruptcy protection. Prior to the clients meeting with the attorney, I interview the clients to gather information necessary to prepare a bankruptcy petition and see them through credit counseling, which is required before debtors can file their petition. If you have experience assisting individuals filing for bankruptcy, GDVLP can use your knowledge and talents. Once petitions for three to four clients are drafted, you would come to our offices to meet with the clients for them to review and sign their petitions. If you have any changes to the petitions, I would make them and then electronically file the petitions with the Court. I will also prepare any other necessary paperwork related to the filing of www.daybar.org
each bankruptcy. You would then represent the clients through the process (including attending the meeting of creditors and until the Court discharges the bankruptcy) while I continue to manage communications with them as additional items are needed by the Court and Trustee. If you do not have prior experience with the Bankruptcy Court, we would initially pair you with an experienced attorney for mentoring. With that initial experience under your belt, you could take a group of clients on your own but still have access to experienced counsel when questions arise. With paralegal support from the GDVLP, and the availability of a mentor, you can learn bankruptcy law and serve pro bono in an environment that will provide you with the experience you need to become comfortable practicing a new area of the law. For paralegals, non-attorneys and others who want to volunteer their time to the GDVLP and provide an important service to our community, we need you, too! With training from the GDVLP, you would learn how to (1) interview clients, (2) review the materials they have gathered in order to determine if they are ready for their petitions to be drafted, (3) prepare them to meet with their assigned attorney, and (4) utilize Best Case Solutions software that is used to draft the petition. For attorneys, the GDLVP provides primary malpractice coverage. In addition, for every six hours you serve pro bono you can get one hour of CLE credit in Ohio. Have I interested you in serving pro bono in the are of bankruptcy law? If so, please contact me at (937) 461-3857 or Sharon@gdvlp.org.
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
February 2020 Dayton Bar Briefs
27
109 N. Main St., Suite 600 Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED
PRSRT STD U.S. POSTAGE PAID CLEVELAND, OH Permit No. 362
