April 2020 Dayton Bar Briefs Magazine *Digital Issue by Dayton Bar Association

The Magazine of the Dayton Bar Association | APRIL 2020 | Vol. 69, No. 8

Dayton

Bar Briefs

BARRISTER OF THE MONTH Julius L. Carter Esq. pg 8

www.daybar.org

"This Judicial Life"

The Honorable Barbara P. Gorman pg 16

COVID-19 Data Privacy

Working from Home? Online Scammers are Not Social Distancing pg 22

April 2020 Dayton Bar Briefs

CONTENTS

Dayton

Bar Briefs

April 2020 | Vol. 69, No. 8 *Special Digital Issue

Dayton Bar Association Board of Trustees 2019 – 2020

Hon. Mary L. Wiseman President

Features 6 TRUSTEES MESSAGE Back from the Brink: Attorney Health & Wellness

By Anne P. Keeton Esq. Freund, Freeze & Arnold, A Legal Professional Association

BARRISTER OF THE MONTH: JULIUS L. CARTER ESQ.

By Ebony Davenport Esq., Pickrel Schaeffer & Ebeling, Co., LPA

Merle F. Wilberding

10 COVID-19: LABOR & EMPLOYMENT Changes in Employment Law By David P. Pierce Esq., Coolidge Wall Co., LPA

Caroline H. Gentry

13 DBA LEADERSHIP DEVELOPMENT PROGRAM Accepting Applications/Nominations for the 2020-2021 Class

Fredric L. Young First Vice President

Second Vice President Secretary

Brandon C. McClain Treasurer

Rebecca M. Gentry Member–at–Large

Anne P. Keeton Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber Member–at–Large

David P. Pierce

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Executive Director

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 Jennifer Otchy, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308 The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.

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14 DOMESTIC RELATIONS Same Sex Marriages, New Divorce Rules By Nicole Rutter-Hirth Esq., Gump, Deal & Hirth 16 DIVERSITY ISSUES You Can’t Be What You Can’t See:

The Need for Meaningful Mentoring to Improve Diversity and Inclusions

By Ebony Davenport Esq., Pickrel Schaeffer & Ebeling, Co., LPA

18 THE HONORABLE BARBARA P. GORMAN "This Judicial Life" By Candace Anderson Esq., Staff Attorney Montgomery County Common Pleas Court 20 COVID-19: MENTAL HEALTH ISSUES In a Year Full of Worry and Division, How to Protect Your Mental Health By Patrick R. Krill, Krill Strategies Legal Industry Focused Behavioral Health Consulting Firm 22 YOUNG LAWYERS DIVISION Municipal Reform of Marijuana Possession By Martin G. Gehres Esq., City of Dayton Law Department 24 COVID-19: DATA PRIVACY Working From Home? Online Scammers Are Not Social Distancing By Zachary S. Heck Esq., Taft, Stettinius & Hollister, LLP 26 JUVENILE LAW Diversity, Equity and Inclusion in Juvenile Court By The Honorable Helen C. Wallace, Montgomery County Juvenile Court 29 COVID-19: OPT-ED In the Rabbit Hole By Merle F. Wilberding Esq., Coolidge Wall Co., LPA Departments 7 28

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30 CLASSIFIEDS April 2020 Dayton Bar Briefs

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Gold Partner

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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 4

Dayton Bar Briefs April 2020

937.222.7902

DBA Response Plan to COVID-19 In response to the health guidelines provided by the Montgomery County/Dayton Public Health Department (phdmc.org) and other state/national/international agencies, the DBA Offices will be closed until May 1, 2020. DBA Staff has been working virtually and will be available through the DBA main line and email. We are live online and working to continue our services to assist the legal community and the greater Dayton community. You can find our cancelations and postponed event list as well as local court updates here: daybar.org/page/COVID-19 Many of our services continue to be available online, including online CLE, Notary, LRS, Bar Briefs Magazine, and access to DBA section information. We are mindful decisions surrounding operations in the current climate may change daily, we will provide any updates to this plan, as necessary. The DBA team is committed to be a resource for you and your practice as we all navigate this rapidly changing situation. Thank you for your support and understanding. We are here for you!

| CLEs |

| Sections | The DBA team is working to move scheduled live CLE programming to interactive webinars. We currently offer self-study CLE and encourage you to review the many offerings available: daybar.ce21.com

| NEW! DBA Live Webinar Series: DBA Bar Talk | Please tune in for our new virtual programming available to you via Zoom. Tune in weekly for live updates from a variety of speakers from your local courts as well as other legal substantive topics and content. We'll keep you updated as we add to our virtual programming. www.daybar.org

The DBA will be using Zoom Video technology for future sections meetings so our members can continue to meet virtually. Donâ&#x20AC;&#x2122;t have a Zoom Account? Download your free account here: zoom.us/signup Questions? Contact Tyler: twright@daybar.org

| Local Court Updates | Access these updates and additional COVID-19 resources here: daybar.org/page/COVID-19

April 2020 Dayton Bar Briefs

Trustee's Message

Mindful Wellness

Back from the Brink: Attorney Health & Wellness L

ike many of you, my law school class at the University of Kentucky was small as classes go, about a third of the size of my high school class. Though small in number, we were mighty together, friendships forged in the winnowing furnace that is law school. There were the gunners, the top of the class, the kids who sat in the “zone of learning,” the kids who didn’t, the slackers, the peanut gallery. We were all different, but we were all in it together. Together we withstood Trusts and Estates (shudder the thought!), Con Law, Torts. We witnessed 9/11 and comforted each other through its aftermath. Together, we grieved the loss of a friend and classmate to an aneurysm our 3L year. And in February, together, we endured the loss of another classmate – a lawyer, a husband, a father, a friend to anyone who knew him. He killed himself. And no one saw it coming. Friends, we are a profession on the precipice. Teetering on the brink between old idea(l)s of what it means to be a lawyer (long, long hours toiling in a darkened office, lit only by a solitary bulb,1 no thought to the home fires or whether they were burning) and the new reality of double professional households, pressures of joint parenthood and partnership, electronic-age clients who expect wellthought-out, researched, evaluated responses in a nanosecond, not to mention the pressures of the marketplace. The change is apparent even over the course of my 17-year career. And what used to work in the past as coping mechanisms (and one might question whether they truly did work), simply don’t cut it in today’s fight or flight pace of living. I don’t know about you, but I’m tired. I’m tired of making it all work – 10 billable hour days and meal planning and prepping and pick up and drop off and “No, I have no idea where your shoes are. What do you mean you don’t have your shoes?!”2 and school projects and … fill in the blank. It’s enough to push you over the edge. And it’s not just me. I dare say there are more than a few of you who feel the same way. Like you can’t catch your breath but desperately need air. The issue is so acute that the ABA created a National Task Force on Lawyer Well-Being in 2017, in part as a response to a study conducted by the ABA Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation.3 The study evaluated nearly 13,000 currently-practicing lawyers. Of those 13,000 attorneys, 216

Dayton Bar Briefs April 2020

By Anne P. Keeton Freund, Freeze & Arnold A Legal Professional Association DBA Member-at-Large

36% qualified as problem drinkers; 28% struggled with depression; 19% struggled with anxiety; and 23% struggled with stress.4 Those numbers are real. Nearly one in three lawyers struggles with depression. Let that sink in next time you go out to drinks with your two best lawyer pals. Chances are, one of you is struggling. And it might very well be you. Or me. Please don’t get me wrong. I love my job, and I love my profession. I love the people I work with, the challenges of my practice, the “thank you” from a relieved client. But I’ve come to the realization that at some point, if we don’t take care of ourselves, we face burnout that ripples outward to our clients, our colleagues, our firms, our families. The time to address these concerns, Friends, is now. Because if not now, then when? Have no fear. The DBA is here to help. Enter the DBA Health & Wellness Working Group. In September of 2019, the Health & Wellness Working Group presented Attorney Wellness Month, featuring guided meditation during the Chancery Club Luncheon, CLE on Wellbeing Skills for the Effective Lawyer, and work-life balance advice from our very own Erin Rhinehart. So what can you expect in 2020? Look for monthly articles and tips to improve your mental outlook and your physical health. We’ll feature local gyms, and even set up a class or two for you to try out. Also in the works are seminar(s) designed to help you learn how to step away from the fray. All with the goal to provide you with the tools you need to take those baby steps toward improving physical and mental well-being. Step back from the brink, Friends. Breathe deeply. It’s a brave new world out there, but as the kids say, “You got this!” (And we’ve got your back.)

ENDNOTES:

You know the tv dramas I’m talking about. The ones where you wonder if the law firm has some rule about having any of the lights on after a certain hour. I mean, really. Turn on the lights, folks! 2 True story. Shoeless Joe Jackson, except at a basketball tournament, 45 minutes from home. 3 P.R. Krill, R. Johnson, & L. Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46 (2016). 4 Id. 1

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April 2020 Dayton Bar Briefs

Barrister of the Month

Julius L. Carter Julius L. Carter Co., LPA

By Ebony Davenport DBA Editorial Board, Pickrel Schaeffer & Ebeling Co., LPA

t is tempting to look at Julius Carter’s career and marvel at his ability to maintain a successful employment law practice as a solo practitioner. The reality, however, is that Julius did not get here without the support he received from family, friends, and last but certainly not least, the support from the legal community. Julius is a summa cum laude graduate with majors in accounting, business, and management. He worked as a civil servant, with 20 years of military and government service prior to practicing law. Many of those civil service years were spent representing federal employees in labor disputes. Unbeknownst to him at the time, it was his civil service experience that would ultimately lead him to law school. Julius dealt with a difficult employment issue that necessitated legal representation. After being involved in an automobile accident and losing his job, Julius hired employment attorney, Robert Laufman,who helped him reach a successful outcome. He regained his job where he later retired. Julius wrote a compelling letter to a nursing home, which later caught the eye of NYU law professor, Peggy Cooper Davis, who encouraged Julius to consider law school. He applied to the University of Dayton School of Law (“UDSL”) and was accepted into the first 2-year accelerated program. While at UDSL, Julius developed close relationships with several professors as well as the dean. Dean Kloppenberg, Prof. Vernelia Randall, Prof. Dennis Greene, and Prof. Susan Elliot were all instrumental in his success as a student and preparing him to enter the profession. Julius fondly remembers conversations he, and other BLSA (Black Law Student Association) students 8

Dayton Bar Briefs April 2020

had with Judge Walter H. Rice. He also remembers being reassured by Judge Mary Huffman (who taught him in class alongside Judge Jeffrey Froelich) that he would pass the Bar exam on the first attempt. Not only did Julius receive support inside the walls of Keller Hall, he received just as much outside the classroom. Julius gained invaluable experience that would go on to shape him into the successful attorney he is today. As a rising 2L, Julius worked with Wright and VanNoy. Julius considers Attorney Michael Wright to be a mentor and his most trusted colleague. During that summer, Attorney Anthony VanNoy allowed Julius to sit second chair on a high-profile criminal case before Judge Gregory Singer. That was an opportunity most law students only dream of. During the school year, Julius was an extern with Judge Barbara Gorman and her staff attorney Candy Anderson. Julius drafted several opinions for Judge Gorman and was able to see local attorneys practice up close. As he approached his final year in law school, Julius spent an entire summer with Judge Michael Hall, who he was able to work closely with and gain invaluable experience. Upon graduating from UDSL, Julius began managing the Cooper family business, a full circle moment indeed since it was Peggy Cooper Davis who first suggested Julius consider law school. After passing the Bar exam, Julius began his solo practice and was mentored by David Greer. The two initially met through the Ohio Supreme Court’s Lawyer to Lawyer mentoring program which pairs newly licensed attorneys with experienced attorneys to help guide new attorneys through the profession. What was supposed to be a one-year commitment has

developed into a years-long mentorship that exists to this day. Julius considers himself fortunate to have Greer as a sounding board and appreciates the guidance throughout the years. Julius is also an active member in the Dayton legal community and has served on committees alongside Harry Beyoglides, a good friend and colleague, throughout the years. After practicing for several years, he was recruited by his former undergraduate professor, Dr. Talbert Grooms who was the Chair of the Civil Services Board. Julius served as a Hearing Officer and Legal Advisor to the Board where he heard and decided cases involving City of Dayton employees. This was his first experience deciding legal issues involving employment, an area he continues to practice in to this day. The support Julius has received since the very beginning of his career has propelled him to his current position. It is no coincidence that his solo practiced has fared as well as it has. It was the steady encouragement he received as a student, especially in his internship and externship opportunities, that equipped him with the necessary tools to build his practice. It only makes sense that Julius would pay it forward, providing the same support to those entering the profession. Wray Blattner invited Julius to join Jamar King, Judge Mary Wiseman, and Judge Michael Newman on the Greater Dayton Area Diversity & Inclusion Legal Roundtable. The roundtable is a think-tank designed to improve diversity and inclusion in the Dayton legal community. As a Roundtable member, Julius has participated in the roundtable’s initiatives to support law continued on page 9

937.222.7902

BARRISTER OF THE MONTH: Julius L. Carter continued from page 8

R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459

students. Julius volunteered as an interviewer at a mock interview program, where he offered candid, constructive criticism so students were better prepared to land their dream job. Julius also supports the diversity clerkship program ensuring that more students are able to secure summer employment opportunities. My conversation with Julius made me reflect on the principle of lifting as we climb. Each of us has arrived to this profession due to the help that we received along the way. Even the most successful among us still pick up the phone to call their mentor for guidance because that is simply the nature of our profession—problem solving. It is imperative that we never lose sight of the work of others who paved the way for us. Julius is proof that every single step along the way is necessary to our professional development. We should all take a page out of his book and show gratitude to all who have made our careers possible.

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April 2020 Dayton Bar Briefs

COVID-19: Labor & Employment

COVID-19 Changes in Employment Law

he COVID-19 outbreak undoubtedly has changed all of our lives forever. As it pertains to employment law, it seems that every day a new piece of legislation is introduced, passed, or interpreted, or a new Executive Order is issued.1 Just in the month of March 2020, the following occurred:

• Changes to State Unemployment Processes.

Initially by emergency declaration on March 15, 2020, then codified by Sub. H.B. 197 and signed by Governor DeWine on March 27, 2020, unemployment eligibility and benefits have been changed. Now, an individual is eligible for unemployment if the individual has been requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of coronavirus, even if the individual is not actually diagnosed with coronavirus. Additionally, individuals laid off as a result of a coronavirus-related loss of production are eligible for benefits. However, asymptomatic individuals who are simply scared to work are not eligible. In addition, the standard one-week waiting period for unemployment benefits for those impacted by the above situations has been waived by the new law as has the requirement that certain individuals actively seek employment during the pandemic. Finally, the legislation provides that individuals receiving unemployment benefits as a result of a coronavirus-related business shutdown will result in "mutualized" charges for contributory employers. This means that most employers’ unemployment taxes2 will not be increased based on that employer's coronavirus-related discharge decisions, but instead any increase will be spread among all employers in the system. Immediately following these changes, Ohio unemployment filings jumped a whopping 2,500%. Nationally, statistics showed that unemployment claims exceeded 3.3 million in a one-week period of time in late March. Fortunately, for those affected employees, the CARES Act (see below) may also provide additional relief.

• Impact on the ADA.

The Americans with Disabilities Act (ADA) generally covers employers with 15 or more employees, state and local government organizations and labor organizations. The Equal Employment Opportunity Commission (EEOC) has previously cited pandemic H1N1 flu guidance as applicable to COVID-19, which guidance provides that asking about symptoms and telling symptomatic workers to go home is generally permitted because one of two things will be true: (a) doing so in response to COVID-19 symptoms that are merely akin to seasonal influenza is not a "disability-related action" and therefore is not prohibited under the ADA, or (b) doing so in response to more severe COVID-19 symptoms is appropriate even if a "disability" is present, as the illness is serious enough to pose a direct threat to employees or their coworkers. Disability discrimination under the ADA is not implicated under either scenario. Employers can also require employees to have a fitness for duty certification or doctor’s note signed prior to allowing the employees to come back to work. 10

Dayton Bar Briefs April 2020

By David Pierce Immediate Past DBA President Coolidge Wall Co., LPA Employers are still cautioned, however, to avoid making disability related inquiries which can violate the ADA, such as asking if their employees have compromised immune systems or revealing certain confidential medical information. Generally speaking, taking the temperature of employees is acceptable in the context of COVID-19, although in other circumstances it might constitute an impermissible medical examination under the ADA. Likewise, an employer can and likely should ask questions about where its employees have recently traveled to, as long as such questions are not based on disability or national origin. Finally, employees generally should be encouraged to work from home or remotely, which is a recognized accommodation under the ADA.

• Passage of the Families First Coronavirus Response Act.

Employers with more than 50 employees are still subject to provisions of the FMLA during a COVID-19 outbreak.3 Additionally, on March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA), which is effective as of April 1, 2020 and through December 31, 2020 and applies to companies with less than 500 employees and state and local government employees. The FFCRA amends the FMLA to primarily provide that employees who are unable to work or telework from home due to a child’s school or day care being closed may be eligible for partial paid leave and for job reinstatement following any such leave.4 Additionally, the FFCRA contains a new paid sick leave component which generally provides continued on page 11

ENDNOTES:

This article should not be relied upon for legal advice. More detailed information on these and other topics can be found at: https://www.coollaw.com/blog/covid-19-information-hub/ 2 This excludes Reimbursing Employers (which typically are non-profit employers who elect to reimburse the State on a dollar-for-dollar basis). 3 The FMLA would apply to employees who have (a) seen a health care provider twice, or (b) have seen a health care provider once and been prescribed a continuing course of treatment, such as prescription medication. 4 Generally, employees are to be paid 2/3 of their regular rate of pay after 10 days for up to 12 weeks total time off subject to certain daily and aggregate caps. 1

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COVID-19: LABOR & EMPLOYMENT: Changes in Employment Law continued from page 10 that employees, who have worked as little as one day for an employer, may be paid up to 2/3 of their regular rate of pay for 10 days up to 80 hours subject to certain caps if a qualifying condition is met.5 To help out employers, the FFCRA provides that certain small employer exemptions may exist, and employers may be eligible to take advantage of tax credits to offset payments made under the FFCRA.

• Impact of State of Ohio Shutdown Order.

On March 22, 2020, the Ohio Department of Health issued its “Stay at Home Order” (the Order) effective at Midnight on March 23, 2020.6 Pursuant to the Order, all but Essential Businesses and Operations (Essential Businesses) were ordered to temporarily shut down in the State of Ohio. Section 12 of the Order contains a long list of categories of Essential Businesses, including but not limited to, professional services, such as legal services. Pursuant to Section 13 of the Order, even those businesses that do not qualify as Essential Businesses, may be allowed to provide Minimum Basic Operations. Generally, this means that businesses may be allowed to perform the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s plant and equipment, process payroll and employee benefits, or to facilitate employees continuing to work remotely. Under any circumstance, a business that continues to operate must comply with certain social distancing requirements set forth in section 15 of the Order including: maintaining six-foot distancing, having hand sanitizer available and sanitizing products for customers and employees, offering separate hours for elderly and vulnerable customers, and offering online and remote access.

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• Passage of the CARES Act.

The 2 trillion-dollar CARES Act (CARES Act) was signed into law by President Trump on March 27, 2020. In addition to providing stimulus payments directly to many individuals and disaster loans and other relief, the CARES Act provides for expanded unemployment benefits of up to $600 per week for four months, allows nonprofits to possibly recoup some of their unemployment payments, and provides relief for independent contractors and business owners who cannot take advantage of typical state unemployment coverage. Additionally, the CARES Act contains a paycheck protection program (PPP) which may allow most small businesses to take loans up to 2.5 times their average monthly payroll costs and offers loan forgiveness subject to certain limitations. This will undoubtedly help small businesses and nonprofits survive these difficult economic times. Hopefully, things in the area of both employment law and all other aspects of life will begin to stabilize in the weeks and months to come. Until they do, the good news is that our local judges and lawyers are dedicated and strong enough to guide the community through these turbulent times.

ENDNOTES:

The six qualifying conditions are: (1) the employee is subject to a federal, state, or local quarantine or isolation order; (2) the employee has been advised by a health care provider to selfquarantine; (3) the employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis; (4) the employee is caring for a person subject tot a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine; (5) the employee is caring for a son or daughter of the employee whose school or day care is closed (i.e. the FMLA amendment discussed above); or (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or the Secretary of Labor. 6 The Order can be found at the following link: https://content.govdelivery.com/attachments/ OHOOD/2020/03/22/file_attachments/1407840/Stay%20Home%20Order.pdf 5

April 2020 Dayton Bar Briefs

*NEW

ONS Online Notary Public Referral Program Learn More: https://www.becomeanohionotary.com

Need help finding Ohio Online Notaries Public to provide assistance to you and your clients? We are pleased to announce that Ohio Notary Services has created an Online Notary Public Referral Program. We have compiled a list of authorized online notaries who have indicated their ability to help you during this time. We will go through the list on an even and equitable basis in order to be fair to all. Please email info@becomeanohionotary.com and ask for a referral. The ONS is not charging for this service, but is hopeful it allows you to serve your clients to the best of your ability. Please Note: Due to our current situation regarding the pandemic, we have not had the opportunity to vet the notaries on the list. We created this to fill the void of in-person notaries due to social distancing. We've asked the notaries to respond to you quickly, but please feel free to ask for a second referral if you need one.

Do You Have Your Notary?

Dayton Bar Briefs April 2020

12 937.222.7902

DAYTON BAR ASSOCIATION LEADERSHIP DEVELOPMENT PROGRAM

Explore.

It’s time to inspire! Put those natural born leadership qualities to use. Take this opportunity to engage with key stakeholders in the Dayton legal community.

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DBA Leadership Development Program Application Deadline is May 11, 2020 Ready for Take Off!

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The Leadership Development Program is designed for DBA Members who have been practicing less that 5 years. Monthly activities, events and sessions will run September through June and connect you with issues, essential training, and key leaders of the community. Lawyers will be accepted based upon an interest in the DBA and future leadership positions at the DBA. All candidates must be in good standing within the legal community and express an interest in community service.

Previous Leadership Development Program Grads are Current Leaders!

“colleagues The Class provided me with a forum to make new friends among my new-lawyer as well as networking opportunities with experienced attorneys serving

the Bar. The speakers and class topics provided me with insight and skills I needed to create a foundation for being a lawyer-leader in my community. - Cassandra Andres Rice Esq. Porter Wright Morris & Arthur, LLP DBA LD Class of 2013-14’

“to identify The DBA Leadership Development Class provided me with a meaningful opportunity ways to grow as both a lawyer and a community leader through thoughtful

discussions with local judges, thought leaders, and business professionals. People look to lawyers for wisdom and insight. The DBA Leadership Development Class offered me the tools and relationships to refine those qualities while making a difference in both my practice and our community. - Zachary S. Heck Esq. Taft Stettinius & Hollister LLP DBA LD Class of 2017-18’

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April 2020 Dayton Bar Briefs

Domestic Relations

By Nicole Rutter-Hirth Co-Chair Domestic Relations Section Gump, Deal & Hirth

Same Sex Marriages, New Divorce Rules

ivorces are complicated, legally and emotionally speaking, despite who is involved. A failed marriage is not less painful simply because it involves parties of the same gender. And while the same statues apply to all divorces, the legal issues in same sex divorces are unique. This is largely because same sex marriage has only been recognized in Ohio for a few years. This means two things; there are no long-term same sex marriages and there is a lack of case law for us to rely upon to navigate the unique legal issues that arise in these unions. I can proudly say I have handled several same sex divorces in Montgomery County. I should note the pride I express is not in the divorce itself, as few divorces are proud moments for me. The pride I am referencing was mostly due to the courtâ&#x20AC;&#x2122;s genuine interest in researching the unique issues that arose in these particular cases. Same sex divorces carry a few notable differences from opposite sex divorces, which I will generally address here.

1. Limited Awards of Spousal Support

An award of spousal support is largely based on the length of the marriage. Spousal support is not typically awarded unless the parties have been married for several years. In general practice, a marriage of five years is considered long enough to award spousal support to an economically disadvantaged party. The amount of support is largely based on the length of the marriage. Traditionally, an order of spousal support is ordered for one-third of the length of the marriage. And the court looks to the length of the marriage to determine how much to award. A marriage exceeding thirty years often yields income equalization, while a short-term marriage may yield a much smaller award. Because same sex marriage was not legalized in Ohio until 2015, long term same sex marriages simply do not exist. This results in fewer and shorter awards of spousal support in same sex divorces. In fact, a same sex person who got married in Ohio as soon as it was legal has only now been married five years, just now creating a more viable claim for spousal support. As a result, spousal support is less likely to be awarded in same sex divorces due to a lack of long-term marriages. And generally speaking pre-marital cohabitation plays very little role in a divorce. For example, parties who cohabitate for ten years, and marry for two, have been married for two years. This constitutes a short-term marriage, limiting division of assets and allocation of spousal support. 14

Dayton Bar Briefs April 2020

Recognizing spousal support claims may be limited, a divorce attorney looking to advocate for their same sex divorce client must get creative. First, we can use the statute. R.C. 3105.171 addresses spousal support and does not require a minimum marriage length for an award of spousal support. That statute merely states the length of the marriage is a factor for consideration. Thus, an argument can be made for spousal support, despite the short duration of the marriage, especially if the economic disparity between the assets and incomes of the parties is significant. Second, divorce courts are largely guided by principles of equity. An equity argument can be made that the parties could not have had a longer marriage and it would be inequitable to define their marriage simply by the date on their marriage certificate. This is especially true if they lived as a married couple would or otherwise held themselves out to be a married couple, perhaps in domestic partnership status. This maybe proven by showing even prior to marriage, during cohabitation, they acquired property, opened joint bank accounts, or otherwise comingled assets. There is also a constitutional argument to be made under the same rationale. One could argue same sex couples are not afforded equal legal remedies due to the court not recognizing their marriage until recently (which has now been determined to be unconstitutional). For example, it was impossible for them to acquire marital property, or achieve a marriage long enough to warrant spousal support when they were prevented from marrying. Thus, the court should look beyond the date of marriage, and consider cohabitation prior to marriage, when considering an award of support to afford them the same rights as opposite sex couples. Third, if all spousal support argument fails, counsel can request an unequal (yet still equitable) division of assets and liabilities. The idea is simple; award the financially disadvantaged party more assets, or fewer liabilities, in lieu of an award of spousal support. Or, as argued above, argue for the court to divide property acquired before the marriage, if it was acquired during their relationship or cohabitation, on the basis that the property would have been marital if they were permitted to marry.

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DOMESTIC RELATIONS: Same Sex Marriages, New Divorce Rules continued from page 14

2. Allocation of parental rights

Parentage is no longer limited by biology and certainly not in same sex marriages. In same sex relationships, often one of the parties is a biological contributor to the child of the relationship. And at least one of the parties is not. The intent of the parties may be that they are equal parents to their child, but the law does not recognize this. In a divorce in Ohio, the natural mother gives birth to the child and the only presumption of parentage is that her husband is presumed to be the father of any child born during the marriage. This does not apply to marriages with same sex spouses, meaning “spouses” are not presumed to be the parents of children born during the marriage. The end result is that the parent who did not biologically contribute to the child may not be considered the parent to the child, limiting their rights if the marriage fails. While there is no statutory presumption that children born during the marriage are the natural children to both spouses, there are other methods to establish parentage. The non-contributing parent can establish parentage at birth by adding that parent to the birth certificate or signing an acknowledgement of maternity/paternity. Birth certificates no longer list mother and father; they can list two mothers or fathers. This constitutes a legal establishment of maternity or paternity. While that establishment does not establish custody or parenting rights, it is the first step in confirming the parental relationship. If this is not done immediately at the child’s birth, it should be done as soon as possible, and certainly before any indication that the relationship between the parents is ending. A second, more definitive option, is adoption. This is the preferred (and most secure) option as it requires the biological parent to confirm they want their spouse to be viewed as the child’s other parent. Adoption considers several other relevant factors as well including the child’s wishes (if age appropriate) and the length and stability of the relationship between the parents. Notably, the court often explicitly advises the parties that adoption will legally bind the non-biological parent to this child for life, confirming that the parties understand this is the legal effect of the adoption. It also terminates the rights of any other person who may be genetically linked to the child. Adoption clearly confirms it was the intent of the parties to be viewed as equal parents to the child, contrary to their biological contributions. The only downside is that it is a lengthier process than merely establishing maternity/paternity and includes completion of a home study, background check and other more stringent requirements. www.daybar.org

It is critical that a non-biological parent establish parentage. If they fail to do so, and the marriage ends, that parent may be limited in their rights as a parent if the marriage ends. Without a parentage establishment, they may be viewed as a step parent only, which may prevent the court from granting them custody rights. Their best day in court may result in an award of visitation only. On the other hand, absent parentage, the biological parent may be prevented from seeking child or other financial support from the other parent if parentage is not established. Same sex divorces involve unique legal issues that are not yet codified by statute. There also lacks a substantial amount of caselaw to guide us in the right direction. However, principles of equity prevail in divorces. I handled one of the first same sex divorces in Montgomery County. In that case, there was an abundance of enthusiasm by the judiciary to identify the issues involved and research possible resolutions. In fact, at one hearing, the magistrate commented she had taken several online seminars specific to same sex divorces in anticipation of our hearing. The irony was that opposing counsel and I had each taken the exact same seminars to prepare too. Everyone had the same goal; to gain as much knowledge as possible to ensure the litigants had their day in court. After completion of that case, and several others, I am proud to report while we still lack legal resources specific to same sex divorces, there is a desire by the legal community to acquire them. And more importantly, that motivation comes from the realization that these parties only had the ability to divorce because they now have the right to be married. A milestone this legal community embraces proudly.

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April 2020 Dayton Bar Briefs

Diversity Issues

You Can’t Be What You Can’t See : The Need for Meaningful Mentoring to Improve Diversity and Inclusions

iversity and inclusion are familiar buzzwords in our profession, but what do they really mean? In abstract terms, diversity is about social harmony; practically speaking, however, diversity is representative of reality. As Assistant Dean for Academic Affairs and Diversity at University of Cincinnati College of Law Staci Rucker put it: diversity is being invited to the party, but inclusion is being asked to dance. Despite ongoing efforts, the legal field remains one of the least diverse among other professions, including medicine and engineering. Diversity in our profession begins with strengthening our pipelines. Developing and sustaining formal and informal mentoring programs with law students has the potential to move the needle in meaningful ways. In mid-February, I was invited by the Black Law Student’s Association (BLSA) to sit on a panel with other Black attorneys in the Dayton area to discuss issues of diversity and inclusion in our profession. To properly frame the discussion, 1L student, Kyla Randle, read an excerpt from an ABA article published in May of 2018. The authors’ research indicated that as of 2017, there were approximately 35 percent of women in the legal profession. Percentages for racial and ethnic diversity in the profession were even bleaker: the numbers rose from 4 percent in 2007 to 5 percent in 2017. While minority law students are applying and being accepted into law schools more than ever , we have to make sure that we are cultivating practices that can sustain this increase. Clients, whether individuals or corporate entities, come from all walks of life and expect to see a variety of people in law firms they are considering hiring. A firm that is more representative of the general population will be more attractive to a greater array of potential clients. Diversity breeds innovation and fresh perspectives leading to creative solutions to clients’ problems. Diversity makes your organization more marketable attorneys from different walks of life run in different networking groups and participate in different activities, which will increase exposure to your firm. There is also a trend among corporations that are placing more pressure on firms to diversify their workplaces. While diversity is a good business practice, it is vital to the very nature of our profession. As advocates, we symbolize equal access to the justice system, and without the public trust we have nothing. Given the external and internal pressures to remedy the issue, it can be easy to let the weight of the problem paralyze us into doing nothing. The onus is not on any one single person or employer; rather, this is an issue that demands a collective approach. This approach does not have to come at a high price either. Mentoring is a cost16

Dayton Bar Briefs April 2020

By Ebony Davenport DBA Editorial Board, Pickrel Schaeffer & Ebeling Co., LPA

effective, valuable tool that can be customized depending on one’s professional and personal demands, and the size of a given firm or organization. If you’re still wondering exactly how you or your employer can get involved, I have great news for you: you don’t have to reinvent the wheel. We already have the tools to address this issue and make steps toward bridging the existing gaps. Many years ago, the University of Dayton School of Law (“UDSL”) developed a clerkship program to assist diverse law students with obtaining local summer employment opportunities. For various reasons, that program lost steam. By the spring of 2016, however, two local attorneys, Robert Gresham (Wright & Schulte, LLC) and Jamar King (Thompson Hine), picked up the reigns and reintroduced the clerkship program. I was in the inaugural class of the revived program during my 1L summer along with two other UDSL students, Timothy Hill and Bridget Jackson. Robert and Jamar worked closely with the Federal courts to place the three of us with the Hon. Judge Walter H. Rice, the Hon. Magistrate Judge Sharon L. Ovington, and the Hon. Magistrate Judge Michael J. Newman. I was placed with Judge Newman and there are not enough words to express how valuable that experience was in shaping who I am now as a young attorney. I had an enviable, backstage pass to see how our justice system works up close. Not only was I able to refine my writing and research skills, but I was able to network with other attorneys and legal professionals. I quickly learned just how congenial the Dayton Bar is, which strengthened my desire to practice in my hometown upon graduation. That summer allowed me to develop a meaningful relationship with Judge Newman and his staff. My participation as a “diversity clerk” wasn’t ceremonial; it set the foundation for where I am today. Since the program’s revival, Jamar and Robert have developed partnerships with more employers, which in turn has created more clerkship availabilities. Wright & Schulte LLC, Thompson Hine LLP (Dayton), the Montgomery County Public Defender’s Office, and the Dayton Municipal Court have joined the Federal judges in taking on diverse summer clerks. continued on page 17

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DIVERSITY ISSUES: You Can't Be What You Can't See continued from page 16 In the summer of 2019, I joined Jamar as a co-chair for the Diversity Clerkship Program, which is currently housed in the Greater Dayton Area Diversity & Inclusion Legal Roundtable (“GDLR”). The GDLR was born out of the lack of diversity in the local Bar. Wray Blattner (Thompson Hine) joined forces with current DBA President, the Hon. Judge Mary L. Wiseman, Judge Newman, Julius Carter, UDSL and a host of other attorneys and judges in the Greater Dayton area to form a think-tank to develop meaningful ways to address this issue. The GDLR meets quarterly to strategize and discuss new initiatives. Along with the clerkship program, Jamar has worked with Simeon Lyons (UDSL ’19) to hold a mock interview program, which Thompson Hine has hosted the past two years. Law students from UDSL are invited to submit their resume and cover letter, which are distributed to attorneys and judges who volunteer to interview them and provide constructive criticism. This is a valuable exercise for law students to improve their interviewing skills and get feedback in real time. They’re also able to witness the Dayton Bar’s commitment to diversity and inclusion issues. Another program born out of the GDLR is the Diverse Mentoring Program in conjunction with UDSL, coordinated and facilitated by Marissa Weatherly (UDSL ’20) and Cori Haper (Thompson Hine). The program is modeled after the Ohio Supreme Court’s Lawyer to Lawyer Mentoring Program, with curriculum designed to encourage meaningful discussion and relationship building. While mentoring is certainly not the only solution to addressing the lack of diversity in our profession, mentoring diverse law students and young lawyers is a small step in that direction. Mentoring takes many shapes—it could involve assigning cases to a young diverse attorney to allow that lawyer to expand their skillset; it could involve meeting with a diverse law student for coffee or lunch and offering career advice; or it could involve signing up for more formal opportunities with the GDLR. There is room for each of us to use the resources we have to mentor a bright, young diverse law student and/ or lawyer.

www.daybar.org

NEW

DBA Webinar Series

Due to COVID-19, the DBA will not be hosting any in-person meetings, events or CLEs through May 1st. Our new virtual programming is available to you via Zoom. Tune in weekly for live updates from a variety of speakers from your local courts as well as other legal substantive topics and content. Check the website daily for updates:

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April 2020 Dayton Bar Briefs

"This Judicial Life"

The Honorable Barbara P. Gorman

n a cabinet in Judge Barbara Pugliese Gorman’s office, visitors will see a framed newspaper article with picture of her as a newly appointed judge in 1987 on the bench with her youngest child J.P. who was four years old at the time. Across the room, there is a current photograph of her on the same bench with J.P.’s two young sons Oliver and Winston. The thirty-three years between those two moments in time represent the distinguished career of Montgomery County’s first female jurist on the General Division of the Court of Common Pleas. Judge Gorman, the Court’s current Presiding Judge, will be retiring on December 31, 2020. After growing up in the Bronx, Judge Gorman met her husband Tim at Marquette University, where she majored in English and Psychology. Upon moving to Dayton, she followed her first career choice and taught for two years in the Dayton Public School System. She then obtained a Master’s degree in psychology from the University of Dayton. When U.D. opened its law school in 1974, Judge Gorman was one of seventeen women in its first class, which consisted of 100 plus students. At the time, Judge Gorman was interested in practicing juvenile law and did not anticipate a judicial career. True to form, she kept busy in law school by writing for the law review and, more importantly, having her first child Jude. Upon graduating Summa Cum Laude in 1977, Judge Gorman began practicing in the Montgomery County Prosecutor’s Office. While there, she spent eight and one half years in the civil division working on, among other things, employment disputes, labor relations, civil rights cases, and representing county boards, agencies, and elected officials. Judge Gorman describes herself as having had a “nanosecond” of criminal law experience while at the Prosecutor’s office with the prosecution of two criminal cases under her belt before taking the bench. Lee Falke, the Montgomery County Prosecutor at the time, was instrumental in encouraging her to apply for an appointment to the Common Pleas Court. She credits Lee Falke as being the “best boss ever” (a claim that the members of HER staff, including myself, may have to dispute). At the time, she and her husband 18

Dayton Bar Briefs April 2020

were raising three children ages four, six and ten. While Judge Gorman was not the first female judge on the Montgomery County bench, she was the first in the General Division. Attorney Susan Blasik-Miller recently reflected that having Judge Gorman on the General Division bench in the late 80’s and early 90’s when men still clearly dominated the profession was inspirational to her and other young female lawyers at the time. Further, in her experience with Judge Gorman over thirty plus years, the judge has always demonstrated the highest integrity and treated all attorneys and litigants with respect and fairness. Without her realizing it, Judge Gorman’s demeanor in the courtroom had an impact on Attorney Arkesha Sellers at the start of her career. She recalled being nervous at her first appearance before Judge Gorman in a full courtroom at docket. Judge Gorman’s encouraging attitude toward her from the bench, however, was noticeable to the young lawyer. According to Attorney Sellers, “it made all the difference to see her encouragement,” and as result, she felt confident and empowered in her practice as a relatively new female attorney. Judge Gorman’s commitment to fairness in the courtroom is recognized by many in the legal community. Montgomery County Prosecutor Mat Heck, Jr. says, “For over 30 years, as a Common Pleas Court Judge and as the Presiding Judge, Barbara has served the people in Montgomery County with dignity, honor, and respect. She has the uncanny ability to spot the most salient issues in the cases that appear before her and deals with them accordingly. She exhibits excellent judicial temperament, is fair to both sides and insures justice for victims and citizens as well as defendants.” continued on page 19

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"THIS JUDICIAL LIFE" The Honorable Barbara P. Gorman continued from page 18

Montgomery County Public Defender Theresa Haire, who had not been assigned to Judge Gorman until this past year, is struck by the judge’s patience with and empathy toward her office’s clients. She commented, “Many of my clients seem to sense that the judge truly cares what happens to them after they leave her courtroom.” In addition to her judicial duties, which included being administrative judge for two terms, serving on various committees of the court, and presiding over Drug Court and Non-Support Court, Judge Gorman has maintained an active role supporting the Dayton community with her volunteer activities. In the past, she has served on numerous nonprofit boards and is currently on the Board of the YWCA Dayton, the Greater Dayton Volunteer Lawyers Project, and the Brunner Literacy Center, which is a non-profit organization that provides free one-on-one tutoring to adults who want to improve their reading, writing, and math literacy skills. Judge Gorman has a strong commitment to the University of Dayton Law School, where she currently serves on the Alumni Board. She also taught Civil Practice as an Adjunct Professor for twenty-five years with Attorney Tom Whelley II. Many U.D. law students have interned with Judge Gorman throughout her tenure, and she was able to provide those students with valuable first-hand experience relating to the judicial process. The University of Dayton Law School Alumni Association honored her with its Distinguished Alumni Award in 1993 and www.daybar.org

the Francis J. Conte Special Service Award in 2016. In addition, she received the Special Achievement Award from the University of Dayton National Alumni Association in 1998. Judge Gorman and Tim plan to devote a substantial amount of time in their retirement to their favorite activity-visiting their grandchildren and being grandparents. The Gorman’s’ older son Jude and his wife Sarah have a daughter and a son and live in Manhattan. Their daughter Maria and her husband Rick have two sons and live in Brooklyn. J.P. lives in Milwaukee with his wife Kristen and their two sons. Traveling across several states to watch them all grow up will keep the Gorman’s busy and happy. Judge Gorman also plans to continue her volunteer work in the community, including tutoring at the Brunner Literacy Center. Students at the University of Dayton may also see her taking a class or two next year. Until the end of the year, however, her work at the Court goes on!

By Candace Anderson Staff Attorney The Honorable Barbara P. Gorman Montgomery County Common Pleas Court April 2020 Dayton Bar Briefs

COVID-19: Mental Health

In a Year Full of Worry and Division, How to Protect Your Mental Health By Patrick R. Krill Founder of Krill Strategies, a behavioral health consulting firm focused exclusively on the legal industry. Go to www.prkrill.com for more info.

oes 2020 already feel like it’s been a long year? If so, the good news is that we’re not even a full quarter into it, so there is still ample time to rebound and course correct, to reach the goals you have set for yourself and have some fun and good times along the way. Unfortunately, the bad news is that we’re not even a full quarter into it, and the curveballs and negativity are comin’ in hot and threatening to leave a mark on many. Let’s talk about why and how you should duck if you want to preserve your mental health and well-being. Beginning with the most recent threat to our collective sanity—coronavirus—it’s important to recognize that anxiety and panic rarely lead to good decision-making or improved circumstances, but frequently lead to fatigue, emotional exhaustion and retrospectively disproportionate despair and energy expenditure. Step one in your 2020 self-care plan is, therefore, to pause and recognize that you may find yourself being herded over a psychological cliff by what seems like an airborne germ of worry, worsened by hourly dispersal through push notifications, social media posts and news headlines. To some degree, you probably are. Just as you can do things to protect yourself from the virus itself (it’s probably time to wash your hands soon), you can also protect yourself from the mental fallout. Those include limiting your exposure to emotionally disruptive cues, just as you would want to limit your exposure to the illness itself. Am I suggesting you bury your head in the sand and ignore what you need to know? Of course not, but it is far from a binary choice between willful ignorance and 20

Dayton Bar Briefs April 2020

reflexive consumption of every single detail and development. Unless you’re an epidemiologist or public health offi cial, chances are you don’t need a real- time play-by-play. As with most anxiety-inducing subjects, the big-picture awareness will probably suffi ce. As such, limiting social media and disabling worry-inducing notifications is a good idea. According to the CDC’s guidance (https://www.cdc.gov/coronavirus/2019ncov/prepare/managing-stress-anxiety.html) for managing anxiety and stress during the coronavirus pandemic, you should “take breaks from watching, reading, or listening to news stories, including social media.” Beyond fear, worry and anxiety, however, the other blow to our mental health that coronavirus threatens to land is an increasing sense of isolation and loneliness. As events and get-togethers are canceled, trips are postponed and remote working and “social distancing” increase, we’ll be getting less of something human beings are hard-wired to need—a sense of connection. Lawyers already experience high levels of isolation (https://www.law.com/2020/02/19/ by-the-numbers-the- state-of-mentalhealth-in-the-legal-industry/) and loneliness (https://www.law.com/2019/05/28/battlingan- epidemic-of-loneliness-among-lawyers/), both of which undermine physical and men-

tal health and increase the risk of substance misuse and addiction. Anything that stands to increase those feelings of disconnection amounts to its own problem that needs to be guarded against. Fighting isolation and loneliness amid a broad public health concern might seem more challenging, but the best way to do it is generally the same as in the absence of an outbreak: with intention and commitment. Schedule time to check-in (by phone or video) with family and friends and keep the appointment. Even if you’re tired, make the calls and give yourself permission to be fully present for the conversations. In a time of increased stress, a sense of connection can be transformative and, for some, lifesaving. Along with loneliness, another thing that can increase during crises is use of alcohol and drugs, often to combat fear and worry. Those in the legal profession are already at an increased risk of substance misuse, and now is an especially important time to be aware of that risk. Excessive alcohol use disrupts and impairs the immune system, something we need firing on all cylinders at the moment.

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COVID-19: MENTAL HEALTH: In a Year Full of Worry and Division, How to Protect Your Mental Health continued from page 20

Despite the immediacy of the current pandemic, let’s not lose sight of the fact that life will go on. This is not the end of the world, and we will get through this. Once coronavirus and the accompanying disruption to routines pass, however, we’re still looking at a year filled with increased tension, rancor, division and uncertainty. Thanks in large part to the election now hurtling towards us like a Twitter-fueled hate bomb, a panoply of unfavorable emotional states were already manifesting, even before the pandemic. Goodwill, civility and respect, meanwhile, seem to have been quarantined somewhere just out of sight. In all, it’s an environment that you’ll be required to take proactive steps to mitigate if you want to emerge unscathed. Fortunately, the things that can help you navigate this more protracted hazard to your mental hygiene are in many ways the same: wisely limit your exposure to the harmful negativity often found on social media and to the regular bombardment of alarmist headlines, a phenomenon so pernicious that some therapists have labeled its impact “headline stress disorder (https://www.medicalnewstoday.com/ articles/327516#Take-a- break-from-thenews).” Furthermore, prioritizing and nurturing a sense of connection with others—most importantly positive people —has probably never had as much protective value as it does in 2020. Joining social groups or clubs, engaging with your community, volunteering, and taking part in religious, spiritual or cultural activities are all great ways to foster a sense of belonging and inclusion and will likely pay dividends across all aspects of your personal well-being. www.daybar.org

Though on hold for the time being, don’t forget the value of these activities on a longterm basis. Though likely implicit in what I’ve already written, I want to be unambiguous that when it comes to human connections, social media is not the same as social support or connection. While research clearly demonstrates that face-to-face social connectedness is strongly associated with well-being, the data on social media and mental health, including feelings of loneliness and isolation, is far less charitable and in many cases damning. Additionally, and something I’ll be writing more about in a subsequent column, right now is an opportune time to familiarize yourself with the benefits of talk therapy. Often not what people envision, talk therapy can be an excellent way to develop practical strategies and tools for managing the increasingly stressful times in which we find ourselves. Surprising to many people, you don’t have to be in the grips of an acute or significant mental health problem or disorder to benefit profoundly from the experience. It can be quite therapeutic and healing to simply verbalize your worries—to get them off your chest—and be heard by someone who is, in many ways, a professionally trained listener. Turning to the organizational rather than individual level, law firms or other legal employers would benefit from promoting activities to support health and well-being in the coming months. Lawyer Well-Being Week (https://lawyerwellbeing.net/) in early May is an excellent opportunity to do so. The website offers many suggestions on how to get started, and it really is something that organizations of just about any size and

budget can accommodate. Finally, and something we can all probably stand to work on, take a minute and be kind to someone you don’t know today. While you can probably intuit the cascading societal benefits of such a seemingly small act, former Surgeon General Vivek Murthy, in his forthcoming book Together: The Healing Power of Human Connection in a Sometimes Lonely World, makes the case that these “micro moments of connection” can have a lasting impact on how good we feel and remind us that we have the ability to connect with people. That’s a timely reminder indeed.

April 2020 Dayton Bar Briefs

YLD

Municipal Reform of Marijuana Possession

ver twenty-five years ago, presidential candidate Bill Clinton admitted that he “experimented with marijuana a time or two [but] I didn’t inhale it[.]” Commentators at the time opined that this admission could potentially end his political career. Fast forward to today, primary presidential candidate Senator Bernie Sanders promised to legalize marijuana and vacate and expunge all past marijuana-related convictions. Further, this evolution on the issue of marijuana is shown by state and municipal reforms. Eleven states have “legalized” the recreational use of marijuana for adults over the age of twenty-one. Two of these states, Michigan and Illinois, are just a brisk four-hour drive from Dayton. In a majority of these states, the state issues permits/licenses to allow the sale of recreational marijuana through dispensaries. These dispensaries often have a variety of products, to include: marijuana (variety of strands), chocolates, gummies, drinks, vapors, oils, and so on. States have found that the “legalization” of marijuana has been profitable with the potential of raising millions of dollars in tax revenue. In January of 2020, Illinois reported generating more than ten million dollars in tax revenue from legal marijuana sales. States are not the only governmental body reexamining their relationship with marijuana. In November of 2018, voters in the City of Dayton had the opportunity to determine whether to reduce criminal marijuana penalties in Dayton. Over seventy percent of Dayton voters were in favor of the City proposed changes. Subsequently, Dayton City Commission voted unanimously in favor of changing its Revised Code to reflect the will of its residents. Cincinnati (5-3), Columbus (unanimously), and Cleveland (15-2) have recently passed similar legislation. These municipal reforms share common characteristic. First, these municipal reforms concern misdemeanor marijuana possession (possession of 200 grams or less). Second, the fines for violating these statutes are usually a nominal amount or zero dollars. Dayton, Cincinnati, and Cleveland reduced their fine to

Dayton Bar Briefs April 2020

By Martin W. Gehres Co-Chair Young Lawyers Division City of Dayton Law Department

$0.00. While, Columbus reduced their fine to $10.00 for possession of 100 grams and $25.00 for possession of 200 grams. It is important to note that marijuana remains illegal in the state of Ohio and that the Revised Code has its own fine structure concerning misdemeanor possession of marijuana. Although these municipal reforms have not legalized marijuana in Ohio, they have had an impact on criminal and social justice in their cities. Dayton’s ordinance resulted in a significant, approximately 70%, decline of minor misdemeanor marijuana charges filed in Dayton Municipal Court. One thing is clear inhaling marijuana will no longer cause your career to go up in smoke.

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www.daybar.org

April 2020 Dayton Bar Briefs

COVID-19: Data Privacy

Working From Home? Online Scammers Are Not Social Distancing

lthough Governor Mike DeWine’s Stay at Home order exempts legal services, many DBA members, and their clients, have found themselves learning the ropes of how to work from home in an effective manner. For many, the learning curve has been pretty steep as we participate in conference calls with barking dogs and homeschooled kids in the background. Although you have a million concerns competing for your attention during this unprecedented time, it is extremely important to avoid creating data security risks while working to flatten the curve. This March, as people scramble to identify trustworthy information about the spread of COVID-19, how they can protect themselves, and how they can get tested, spammers and scanners have taken advantage of vulnerable telecommuters. For example, in just the last few weeks, media outlets have reported on the following scams:

spoofed and malicious, infecting the user’s device with malware after a click. In some instances, the link will direct users to a page asking them to enter their email Microsoft Outlook account username and password to be collected by a scammer.

• Email Phishing: According to both the Federal Trade Com-

and household items, are running out at local stores, there are online entities holding themselves out as retailers purporting to have these items in stock. Instead, they are scams that take your payment and never deliver your ordered items. Anyone working from home who is tasked with the responsibility of ordering supplies for their organization should be conscious of online retails and conduct additional

mission and data security firm Kaspersky, email phishing schemes frequently include the use of organization names that would normally appear legitimate. Such emails appear to be coming from representatives of the Centers for Disease Control and Prevention (CDC) or the World Health Organization (WHO). These emails have CDC or WHO logos and headings, or have email addresses that, after a quick glance, look to be official (such as cdc-gov.org). Such links could be

By Zachary S. Heck Co-Chair DBA Editorial Board Taft, Stettinius & Hollister, LLP

Dayton Bar Briefs April 2020

• Domains and Apps: Website domains exist that appear to

track COVID-19 updates and health information, but actually prompt users to download malicious apps to access this information. In particular, an Android App (“COVID-19 Tracker”) has been circulating that, once downloaded, infects the device with ransomware and then demands payment or else the data on the device will be erased. Additionally, various websites have promoted themselves as infection map reports, but instead spread password-stealing malware.

• Goods Delivery: Although goods and supplies, such as cleaning

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COVID-19: DATA PRIVACY: Working From Home? Online Scammers Are Not Social Distancing continued from page 24

research into the seller to verify their legitimacy. For example, many retailers on Facebook Marketplace or Craigslist may not be who they represent themselves to be.

• Fake Charities: As with any major event or crisis, scammers will

try to take advantage of our good intentions. This can take the form of fake charities and fake donation pages. Fake charities may be a completely made up organization (think George Costanza’s “The Human Fund”), or they can resemble or imitate established charities. Establishing vigilant information security practices while telecommuting is more important than ever to guard against bad actors eager to exploit a global crisis. Regardless of the size of your practice (or the size of your clients’ businesses), entities of all shapes and sizes should incorporate the following into their information security practices:

• Establish Secure Home Networks: Open Wi-Fi networks

at home continue to expose individuals and organizations to significant risk for intrusion. Open networks allow anyone to connect to the network and potentially access connected devices, such as phones, laptops, and listening devices such as Amazon’s Alexa. Open networks may also allow intruders to access connected company-owned hardware that contains confidential, sensitive, or privileged information. The Federal Trade Commission recommends that when using devices for work from home, individuals should ensure their router has WPA2 or WPA3 encryption enabled. Individuals should check with their internet service provider to confirm this is in place.

• Secure Laptops and Sensitive Files: While moving equip-

ment and files from the office to the home, individuals should make sure their laptop and files remain safe and secure. It can be easy to lose a file or forget to lock a laptop while moving out of the office or just walking away from your kitchen table. Removable hard drives and thumb drives should largely be avoided, because both can easily be lost or contain malware. If a company must use thumb drives, then encryption must be available and used. To provide some perspective on the importance of encryption, simply encrypting a drive may remove any duty to report the loss of that drive as a “breach” under most state laws. Considering the shifting priorities of companies in a challenging economic environment, dealing with a breach is surely not in any attorney or client’s budget, and could mean the end of a business.

• Slow Down & Be Aware of Surroundings: Most success-

ful data incidents and breaches occur due to human error. Typically, someone in a rush opens an attachment from a suspicious email, forwards a file to an unintended recipient, or visits a site or link with malicious content. Generally, many of these mistakes can be avoided by simply slowing down and scrutinizing the content you receive. Individuals should be wary of emails or text messages containing links or attachments from unknown senders. Instead of clicking or opening those suspicious links, individuals should report all content to their firm or company’s IT Department, if applicable. When in doubt, call the sender of a message and confirm that the message they sent is legitimate.

• Do Not Forget About Physical Security: We must all pro-

tect against unauthorized access to devices and company/client data in remote locations, including from family members, friends, and others. Hard copies of sensitive, confidential, or privileged material should be shredded prior to disposal or recycling. Such documents should be crosscut shredded whenever possible, or otherwise rendered incapable of re-assembly or reading. Additionally, home or remote offices, closets, or desks in which company data and devices are being used or stored should be physically secured using locks or other means to prevent theft or unauthorized use. For some of our DBA members and their clients, these terms and practices may seem foreign. The best thing to do during this period of increased reliance on remote work technology is to take the time to understand the benefits, risks, and impacts of each. Hasty decisions made in an effort to keep a practice or business running in the face of a crisis can have severe consequences, including opening the door to security vulnerabilities that can harm the business, customers, and clients you are seeking to protect.

• Update Software & Applications on Laptops and Devices: Updates are important to correct vulnerabilities in the

software. These updates may run automatically or manually, and individuals should take steps to make sure their devices are up-to-date. All computers and devices should be running antivirus software with the latest updates from the manufacturer. When possible, updates should happen automatically.

www.daybar.org

April 2020 Dayton Bar Briefs

Juvenile Law

Diversity, Equity and Inclusion in Juvenile Court By The Honorable Helen C. Wallace Co-Chair Juvenile Law Section Montgomery County Juvenile Court

veryone is different, yet the same. We all have unique life experiences. My life has shaped who I am and what kind of judge I am learning to become. I was born in South Africa under apartheid. Apartheid was institutionalized, systemic segregation that existed from 1948 until the 1990’s. I was born in 1972, and lived under that regime until we left for the United States in 1979. My early life experiences taught me that people can be relegated to a life of poverty and servitude by the happenstance of their birth and the color of their skin. The irony is South Africa is a diverse country, with people of all different persuasions. There are 11 official languages in South Africa today. I grew up with sights and smells and languages and laughter of all different kinds of loving people. We ate Indian curry, American burgers, British scones, African bobotie (lamb casserole) and biltong (dried beef ). South Africa’s previous government’s reaction to diversity is what triggered its downfall. Differences were not celebrated nor honored. Instead, people were arbitrarily ranked for privilege with the only determining factor being the color of one’s skin. I witnessed my parents try and change apartheid from small individual actions to more systemic ones. Eventually, as many 26

Dayton Bar Briefs April 2020

others before them had, they decided the United States was the best place to raise their four daughters, and we arrived in Ohio in 1979. Eight years later we obtained our legal United States citizenship. Not many people realize that the process then was not too different from that described in the hallways of Ellis Island. I remember being tested for all kinds of medical conditions that could prevent us from being granted citizenship. I felt so lucky and privileged to be healthy and qualify as a United States citizen. It is something, like many other things that we fight hard for in life, which I will never take for granted. I am proud to be an American. I love our country and believe what makes us great is our diversity and constant striving for equity and equality. When I was elected as Montgomery County’s first female Juvenile Court Judge, it felt like life had been preparing me for this opportunity all along. I came to the bench with a very real understanding that all children do not get an equal education. From my own personal experiences as an immigrant and a mother, to those as a prosecutor and a guardian ad litem when I was a practicing private attorney, I learned that many children are unable to proficiently read. Some don’t have any books

at home, or an adult who can teach them to read. I have the ability to create programs to try and change this lack of equity. One of my early initiatives was to build “book nooks” in several areas of the Court. These book nooks are filled with donated children’s books that can be taken home by any person. We have found our generous Dayton community to be a never-ending source of free books for our children. All I did was put a resource together with a need. I aim to keep making these connections for our children and families as often as possible. Following my suggestion, our Court now offers children neuropsychological evaluations to help determine what may be preventing a child from progressing in school and engaging in positive social behaviors. Many of our children are four to five grade levels behind in reading. Of the 184 youth attending the Court school during 2018, three out of four youth (or 75%) tested between a third and seventh grade reading level. The average age of the students, however, is around 16, or tenth to eleventh grade.

continued on page 27

937.222.7902

JUVENILE LAW: Diversity, Equity and Inclusion in Juvenile Court continued from page 26

How is a child going to be successful and stay out of trouble if they are not engaged in school or positive activities and only read at a third grade level? The Court now receives recommendations from a neuropsychologist on how best to deliver educational and behavioral interventions to help our children learn and thrive. The Court views these endeavors as investing long-term in our youth by helping to identify and remove barriers related to academic success, thereby also reducing recidivism, delinquent behavior, long-term adult crime and unemployment. We are recommending trade schools to a lot of the children who may otherwise turn to crime. I hope our initiatives will create a foundation for all children to have a successful, productive future as positive members of our society. Over the course of my life, I observed that truancy is often a symptom of a larger problem. Many barriers, such as lack of transportation, unstable housing, substance abuse and mental health issues, are preventing children from attending school. Research shows that chronic absence from school correlates with lower grades, drop-

ping out of high school, and trouble with the law. Knowing these things, I completely restructured the Court’s school absentee dockets. The Court now front-loads services to meet the needs of families and children through a multidisciplinary team that includes local housing and mental health agencies. We hope that by addressing the needs of children and families in crisis as soon as possible, we can remove barriers to education and prevent further truancy and future official Court involvement. During my past experience as a guardian ad litem, I witnessed many children leave foster care with no structured support. Children were sometimes unaware of the resources and programs available to help them transition to independent adulthood. I’ve instituted policies that require that an emancipating child is educated about all resources available to them before custody from Children Services can be terminated. I have the honor of working with Ohio’s Bridges Program. Bridges is a voluntary program available to young adults who left

DAYTON Bar Association

foster care in Ohio at ages 18, 19 or 20, and who are in school and/or employed and working towards a positive future. The program provides guidance and emotional and financial support for young adults as they transition to adulthood. Being a judge allows me to make a difference in lives each and every day. My diverse experiences facilitate my insight into each child and family I encounter, and I believe the community benefits from my unique perspective. I am so fortunate to have had such a varied background from which to learn. This past year, I have learned exponentially more by being on the bench than in all my prior years. Being open to learning, changing and growing is how we will continue to build a diverse and inclusive bar, and I look forward to being a part of it for many years to come.

HERBERT M. EIKENBARY

Trust

Advertiser Index Daily Court Reporter.....................15 Eikenbary Trust............................27 Ferneding Insurance....................22 LCNB Bank...................................11 OBLIC...............................back cover R.L. Emmons & Associates...............9 Rogers McNay Insurance...............17 Trisha M. Duff - Mediations.............9 www.daybar.org

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 $4,000 are also available.

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 April 2020 Dayton Bar Briefs

C ontinuing L egal E ducation

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Dayton Bar Briefs April 2020

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COVID-19: Opt-Ed

In the Rabbit Hole

“I

By Merle F. Wilberding DBA Second Vice President Coolidge Wall Co., LPA

t's no use going back to yesterday, because I was a different person then," said Alice to the Mock Turtle as she tried to understand and adjust to her new world in Wonderland. Alice had just followed the White Rabbit down the rabbit hole and tumbled into a very surreal world. And, weren’t we all different persons than we were just a day or two ago. For me, it seems like just yesterday that I was busy juggling projects, conferences, meeting days and Schuster nights. I am a different person now, for I (like everyone else) have been cascading down my own rabbit hole as the coronavirus has completely disrupted, if not endangered my life. Until this I had always had a cluttered calendar (and a cluttered desk, but that’s another story) that pretty much controlled or at least managed my life. No more. My calendar has been completely wiped clean. All of my luncheon meetings and dinner engagements have been eliminated by Governor DeWine’s edict that all bars, restaurants and events with more than 50 people are closed until further notice. Even the churches have dispensed with mandatory attendance in favor of online prayers or even satellite radio. Now, I do understand the seriousness of the COVOID-19 pandemic and fully understand the need to implement these very drastic measures in order to slow down the spread and the speed of the transmission of this virus. I support these decisions and I want us all to be safe and secure as we try to live through this crisis, however long it may last. Everybody will struggle to get through this in their own way. For me, I have already learned to forgo the handshakes and replace them with nods, waves, elbow bumps, and perhaps even a risky fist bump or two. But, more often I find myself trying to keep my social distance from everyone. I try to remember to wash my hands for 20 seconds, if possible. (The Happy Birthday song works, although I would not want anyone to hear me sing it.) Our dining habits have changed, as we now see which restaurants have carryout, and what menus and hours they may permit. (I do feel bad for them because the days they lose are gone forever, much like a hotel can never capture the revenue from an empty room for an evening.) Now I order carryout meals, both to feed myself and to support the restaurants and their employees. Work has completely changed. For many people there is no work and no salary. I feel bad for those people. I am grateful for those of us who are lucky enough to work, whether it is at an office or remotely from our home. In our office, we routinely have teleconferences and virtual meetings, and we will soon add visuals to those conferences, either through Zoom or Skype. Aldous Huxley was right. It is a brave new world. That brings us back to our heroine, Alice in Wonderland. As she pondered her life in the rabbit hole, she lamented: “And what is the use of a book without pictures or conversation?” And that’s where I am, lamenting that our remote workdays are without social engagement or other conversation. Whether this hiatus will be for a short time or a long time, we will work through it, just as Dayton has worked through its many challenges during the past year. I look forward to the day when we all can climb out of the rabbit hole and enjoy the sunshine of our community. www.daybar.org

April 2020 Dayton Bar Briefs

M Members embersO OnnTThe heM Move ove 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

Cherish Cronmiller's photo and contact information is incorrect in the DBA 2020 Legal Directory. The corrected information is shown here. CRONMILLER PO Box 1211 Dayton, OH 45401-1211 Mobile: (614) 668-3674 cherishlaw@gmail.com

MiMi DeGrow's photo and contact information is incorrect in the DBA 2020 Legal Directory. The corrected information is shown here.

DBA Classifieds 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 EMPLOYEE ENGAGEMENT SURVEYS, CLIENT SATISFACTION SURVEYS. Customizable, Confidential, Powerful analytics. Enhances firm focus. Antonette Lucente, Blue Gill Consulting Group LLC Antonette@bgfishpond.com

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

DEGROW Miamisburg Municipal Court 10 N. First St. Miamisburg, OH 45342-2305 Phone: (937) 847-6487 Fax: (937) 866-0135 mimi.degrow@cityofmiamisburg.com

GIBSON

Joe Gibson of Gibson Law Offices has been re-elected Mayor of Tipp City. Joe has been a member of Tipp City Council for over 10 years and is in his third term as a Council Member. He was previously Council President and is now in his second term as Mayor. Joe is the former Chair of the DBA’s Workers’ Comp/Social Security Committee and has been practicing law in the Dayton area for 30 years.

LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at: http://www.daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules.

MEDIATION Dennis J. Langer Retired Common Pleas Judge LangerMediation.com | (937) 367-4776

MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com

MEDIATIONS

KOLBER

Richard A. Boucher has named Julia C. Kolber a partner; the firm name has changed to Boucher & Kolber. Congratulations to Julia on this outstanding accomplishment.

Dayton Bar Briefs April 2020

Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 hazlettjeffrey@gmail.com http://www.nadn.org/jeffrey-hazlett

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. No lease, no deposit. Email dave@SchmidtDayton.com for info and pics.

OFFICE SPACE Scenic overlook of Gazebo and Metropark; 20,000 motor vehicles passing daily; historic 120 year-old building; currently two solo practice attorneys with 63 years combined experience -potential mentors & referrals; fully furnished 3 rooms (500 sq ft with refrigerator & microwave; plus three spacious closets & private bathroom; including all utilities & services & internet; USPO - 3 blocks; Police Station, Fire Department & Government Center - 5 blocks; 6 banks - within½ mile; Airport Terminal - 4 miles; 170 - 1.5 miles; 5 county seats under 25 miles. Very economical. Interested? Call 937-836-1013 & leave message.

937.222.7902

L aw -R elated O rganizations Dayton Bar Foundation

Help Build Our Foundation. 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) - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Law & Leadership Institute - Wills for Heroes

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

University of Dayton School of Law

www.daybar.org

April 2020 Dayton Bar Briefs

April 2020 Dayton Bar Briefs Magazine *Digital Issue

Articles inside

JUVENILE LAW

COVID-19: DATA PRIVACY

COVID-19: OPT-ED

THE HONORABLE BARBARA P. GORMAN

DIVERSITY ISSUES

BARRISTER OF THE MONTH: JULIUS L. CARTER ESQ

YOUNG LAWYERS DIVISION

COVID-19: MENTAL HEALTH ISSUES

TRUSTEES MESSAGE

DOMESTIC RELATIONS

DBA LEADERSHIP DEVELOPMENT PROGRAM