March 2017 Dayton Bar Briefs

The Magazine of the Dayton Bar Association |MARCH 2017 | Vol. 66, No. 7

Dayton

Bar Briefs

details on page 15

Dayton

Bar Briefs

CONTENTS

March 2017 | Vol. 66, No. 7

Dayton Bar Association Board of Trustees 2016 – 2017

Susan D. Solle President

Brian L. Wildermuth First Vice President

David P. Pierce

Second Vice President

Barbara J. Doseck Secretary

Jonathon L. Beck Treasurer

Lynnette Dinkler Member–at–Large

Angelina N. Jackson Member–at–Large

Hon. Timothy N. O’Connell Member–at–Large

Merle F. Wilberding Member–at–Large

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BARRISTER OF THE MONTH: CHRISTINE M. HAAKER ESQ.

By Zachary Heck Esq.

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FEDERAL COURT PRACTICE

9

2017 PICTORIAL LEGAL DIRECTORY PREP

When Clients and Colleagues Come Looking...Where Will YOU Be Found?

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2017 LIBERTY BELL NOMINATIONS

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Confidentiality and Privacy in Federal Litigation

By Michael N. Rhinehart Esq.

By Hon. Mary Kate Huffman

DIVERSITY ISSUES Repairing the Pipeline of the Legal Profession to Eliminate the Diversity Gap

By Mag. Brandon C. McClain

DBA RISING STAR ABOVE THE BAR: MAG. BRANDON C. MCCLAIN

Kermit F. Lowery

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By Michael N. Rhinehart Esq.

John M. Ruffolo, ex officio

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FROM THE JUDGES DESK

Immediate Past President Bar Counsel

William B. Wheeler, ex officio Executive Director

DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July.

Paid subscription: $30 / year Library of Congress ISSN #0415–0945 William B. Wheeler, Executive Director Shayla M. Eggleton, Publications 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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FEATURES

3 TRUSTEE’S MESSAGE

The Value of a Mentor

By Barbara J. Doseck Esq.

Dayton Bar Briefs March 2017

You've Come a Long Way, Baby...Women in the Legal Profession

By Hon. Mary Kate Huffman

DEPARTMENTS 16 CONTINUING LEGAL EDUCATION 35

CLASSIFIEDS & MARKETPLACE

UPCOMING EVENTS 13 2017 CELEBRATION OF LIFE MEMORIAL LUNCHEON Tues. May 9, 2017 | Sinclair College, Bldg 12 | 11:30-1:00pm

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2017 DIVERSITY DAY

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2017 ANNUAL PROBATE LAW INSTITUTE

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2017 PARALEGAL DAY CELEBRATION

Fri. April 7, 2017 | Sinclair College, Bldg 12 | 8:30-11:45am Seminar & 12:00pm Luncheon

Fri. March 10, 2017 | Sinclair College, Bldg 12 | 8:30-4:15pm

Wed. April 12, 2017 | Sinclair College, Bldg 7 Tartan Marketplace | 11:30-1:00pm

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TRUSTEE’S MESSAGE

The Value of a Mentor

By Barbara J. Doseck Esq. Secretary City of Dayton Law Dept

O O

ver time, law school students and recent graduates have taken advantage of opportunities to work for an office or attorney without receiving a paycheck. They are not, however, working without any benefit.

While not receiving a financial benefit, they are getting the opportunity to work with attorneys while learning the practice of law. Not one of us would argue that you become a great lawyer on your own. Any great lawyer has become so in part from the guidance they were given. So who are you guiding or seeking guidance from?

The Ohio Supreme Court recognizes the value of mentoring. It has an established a lawyer to lawyer mentoring program. The program believes that “by fostering positive mentoring relationships, Lawyer to Lawyer Mentoring seeks to elevate the competence, professionalism, and success of Ohio lawyers.” While the program does offer CLE credit, it more importantly offers the opportunity to build a relationship with a lawyer who needs it. Being a mentor for other members of the bar provides the opportunity to support the professional growth and development of the mentee.

If you are looking for a mentor, where do you start? I would suggest the process begins by understanding yourself and your needs. What are your strengths and weaknesses as an attorney? What are you hoping to accomplish from the relationship? What qualities would your ideal mentor have? Be aware of your goals and what professional aspirations you have. You can’t get guidance getting to where you want to be if you don’t know where you are going. Understand where you need the most support. This could be advice in how to master a specified area of law, dealing with difficult opposing counsel, balancing work and family, stress management or how to approach a large project. If you have a good grasp of your professional self and needs, the search for a meaningful mentor will be less trying.

Next, you have to reach out. Let others know you are looking for a mentor. Network, attend Dayton Bar Association events, introduce

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yourself to attorneys who you haven’t met yet, and be open to mentors who are not identical to you. Your mentor does not have to be in your same area of practice, have held the same aspirations as you do, or even share the same life experiences as you. I have yet to find a mentor who loves the Steelers as much as I do and I don’t have any mentors that are biracial, Catholic, mothers of two but that does not mean we don’t have anything to talk about. In fact, having mentors that are diverse from me only adds value to our relationship because their perspective is not identical to mine.

I have been fortunate that all of my mentor-mentee relationships grew organically but the majority occurred while working on a committee, project, cause or issue together. Find a common connection that makes your relationship more likely to be successful. Take advantage of the benefit we have of working in a welcoming legal community. Once you have found an attorney who you think will be a good mentor, keep your intentions clear. Let them know that you are looking for a mentor and why you feel you need one. Don’t be afraid to initiate a meeting, a conversation over coffee, or conversation at a bar event. Understand the other demands on your mentor and be flexible in your approach. After making contact, follow up. A mentor relationship will require continued effort and time. You must be willing to accept constructive criticism and feedback. No one masters their profession without challenges which create opportunity for growth. A mentor who will challenge you is a mentor who cares about your professional well-being.

Finally, don’t let them lapse. Once you connect with a mentor it is important that you continue to cultivate the relationship. We all have significant demands on our time. Make the effort to continue your mentor relationship by creating a reoccurring meeting or by agreeing to have coffee or lunch once a month or bi-monthly. Putting forth the effort required to sustain a mentor relationship will pay off in the counsel and guidance you receive. It will be helpful in making decisions about your professional opportunities. It will help foster a greater sense of professional satisfaction. Lastly, don’t forget gratitude. I am extremely grateful for the mentors who taken the time and effort to encourage, challenge, and otherwise offer words of wisdom. I am a better attorney because of those relationships and I would encourage any attorney who does not have a mentor to find one.

March 2017 Dayton Bar Briefs

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BARRISTER OF THE MONTH

Christine M. Haaker Esq.

M M

any lawyers who tell their clients that they are not afraid to “roll up their sleeves and get their hands dirty” mean it in the figurative sense. As in, they are not afraid to dig into the documents, tackle complex factual and legal issues, and do intellectual battle against challenging opponents. But, when Christine Haaker tells a client that she is willing to “roll up her sleeves and get her hands dirty,” she means all that and more. For example, she once learned how to weld for a case and proudly displays her welding helmet, a later birthday gift from a colleague, in her office. Why? Simple. “Because litigation is risky. You never want opposing counsel to know more about the subject-matter than you do.”

While literally rolling up her sleeves has helped her manage risky and complex litigation throughout her career –winning BTI’s prestigious Client Service All-Star Award twice – Christine was an experienced risk-taker, and sleeve-roller, well before she entered practice. She grew up in a working class family, in North Dayton. Every day, her father would leave McMahan’s Mobile Home Park for his job as a janitor at Wright State University and her mother for her job as an executive secretary at General Motors.

Her hard-working parents taught her priceless lessons.

For example, when the family vehicle broke down, there was no disposable income sitting in a rainy day fund to take it to a mechanic. Library books, on the other hand, were free. So Christine’s father would take her to the local library to check out the phone book-sized vehicle manual of the old days and they would study. Then, with an earmarked book to one side, and a popped hood to the other, Christine and her dad would roll up their sleeves and solve the problem together.

Now, many might imagine Christine prevailing in her mission to fix the broken car, and conclude that her success is a testament to her determination. Determination, of course, is critical. However, some will never be able to fix a car, no matter how many books they read. At the end of the day, it helps to be determined and smart—what Christine lacked in funds, she made up for in brains and instinct. So, determined to be the first in either side of her family to attend college, she had yet another problem to solve. How? Perhaps because her father was entitled

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Dayton Bar Briefs March 2017

to Wright State tuition for his children – making virtually all other schools forbidden fruit – Christine had her heart set on the University of Dayton. Unlike Wright State, UD was private and came with a significant price tag. So, Christine developed a plan: she would get straight A’s in high school and be awarded a full academic scholarship, and attend her first (and only) choice for college.

When her father was laid off from Wright State, however, Christine lost the only Plan B she ever had. Luckily, she had already laid the academic groundwork to try for Plan A.

Still, she took a huge risk when she applied to UD, and, she admits “stubbornly” only UD, despite her parents’ fervent pleas to consider alternative, less expensive colleges.

Her hard work paid off, though, when on February 9, 1987 – a date she can recite from heart – Christine received her letter from UD awarding her a full-tuition scholarship.

So that she could live on campus, she put her library-cultivated research skills to good use and applied for every scholarship she could find, cobbling several of those together to make up the shortfall.

Once at UD, Christine declared an accounting major—not because she knew what an accountant did and could not wait to do the same—but because she asked what the hardest business major was and was told “accounting.” She had no plans of going to law school. However, in her senior year, Christine enrolled in a Law and Accounting evening class and was determined to make the most of it. “I did not want to be

that student sitting in the back, waiting for the clock to strike nine.” So, she read every case three times over, sat in the front row, and became an avid—she says probably to the point of “being annoying”—participant.

One evening, she was asked to wait after class, and was told in no uncertain terms by the professor that she needed to take the LSAT pronto and apply to law school. At first, Christine had no interest. As a senior, she was debt-free, and had already interviewed and secured offers for well-paying accounting jobs. Christine’s parents were not on board either. In their view, turning down lucrative accounting jobs, and incurring debt to go to law school, was simply “the stupidest idea they had ever heard.”

In what could be construed as yet another “act of defiance,” and after weeks of cajoling by her professor, Christine let herself be persuaded to take the LSAT. To no one’s surprise, she did extremely well, and agreed to start applying to law school.

Christine enrolled at The Ohio State University Moritz College of Law. In “a series of fortunate events,” she was recruited to Thompson Hine for a summer position during one of the worst downturns of the legal market in decades. With her accounting background, she assumed that corporate law would be the right fit for her. She was wrong. “I went in corporate, and came out a litigator.” She admits now, though, that “when I went in, I’m not sure I understood the differences between Corporate and Litigation, or any other area of practice.

I simply did not have a mentor, family member, or acquaintance to ask what felt like ‘stupid’ questions.” Regardless, she is quite the litigator now, and has the results to prove it. To name just a few of her accomplishments, she once obtained on behalf of a pharmaceutical client a $35 million settlement in multi-jurisdictional, multinational patent infringement case. In other high risk litigation, she obtained dismissal of a putative class action brought against a corporation to block a $2.5 billion merger.

In 2016 and 2017, she was included in The Best Lawyers in America. Before that, she was named an Ohio Super Lawyer numerous times. continued on page 8

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DBA Board of Trustees Nominations M

embers nominated by the Nominating Committee and approved by the Board of Trustees for vacancies that will exist as of July 1, 2017 are: Second Vice President: Hon. Mary L. Wiseman Montgomery Cty Common Pleas Court 41 N. Perry St. PO Box 972 Dayton, OH 45422-1431

Secretary: Cara W. Powers Esq. Premier Health Partners General Counsel's Office 110 N. Main St., Ste. 900 Dayton, OH 45402-1848

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In accordance with Section 2, Article III of the Dayton Bar Association Code of Regulations, Regular Members shall have the right to nominate another candidate or candidates for any elected office for which vacancies exist to be filled at the Annual Meeting not later than noon on the 15th day of the month following the publication of the nominee’s names by delivering to the Association office a nominating petition signed by at least twenty-five (25) regular (voting) members of the Association whose dues for the current fiscal year are paid.

Elections will take place at the DBA Annual Meeting on Friday, June 9, 2017.

March 2017 Dayton Bar Briefs

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FEDERAL COURT PRACTICE

Confidentiality

and

Privacy in Federal Litigation

By Michael N. Rhinehart Esq. Vice Chair: Federal Practice Committee US Dist. Ct, Southern Dist. of Ohio

““T

hroughout our history, the open courtroom has been a fundamental feature of the American judicial system.”1 Open courtrooms further many important objectives of our justice system, such as assuring the public that court proceedings are “conducted fairly to all concerned[,]” as well as providing a necessary “check on the courts.”2 As we all know, the “open courtroom” concept applies equally to papers considered by courts in deciding disputes -- including evidence filed in support of motions.3 With the easy accessibility of court records to anyone with an internet connection, parties and attorneys remain vigilant in protecting sensitive, private, and proprietary information exchanged during discovery and subsequently filed with the court.

Civil practitioners are well versed in protecting confidential information during discovery. In fact, the entry of stipulated protective orders is near commonplace in federal litigation.4 Protective orders governing the exchange of information between the parties in discovery may issue “upon a mere showing of ‘good cause[,]’” because “[s]ecrecy is fine at the discovery stage[.]”5 However, when parties seek to file with the court information marked “confidential” in discovery, such designation -- even if agreed to by the parties -- is generally not sufficient, in and of itself, to permit the filing of such information under seal on the court’s docket.6 As recently stated by the Sixth Circuit in Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016) -- and restated twice within a two month period of time in Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App’x 202 (6th Cir. 2016) and Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co., 834 F.3d 589 (6th Cir. 2016) -- “[u]nlike information merely exchanged between the parties [during discovery], ‘[t]he public has a strong interest in obtaining the information contained

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Dayton Bar Briefs March 2017

in the court record.’” This recent string of Sixth Circuit case law continues to reiterate the importance of open court records and the decades long precedent advanced in Brown & Williamson Tobacco Corp. v.

F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983), that a “strong presumption” exists that any information presented to the courts is open for public consumption.7 To overcome the “strong presumption” of openness, parties seeking to withhold information from public view must move the court for leave to file under seal and, in so doing, bear the burden of showing “compelling reasons . . . justify[ing] non-disclosure of judicial records.”8 In addition to showing compelling reasons, a party seeking to seal information must also demonstrate that the requested seal is not too broad.9 In all, as recently stated by the Sixth Circuit, to properly obtain a seal of judicial records, “[t] he proponent of sealing . . . must ‘analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations’” in support of the request.10 One can show compelling reasons by demonstrating that his or her privacy interests outweigh “the public’s right of access[,]” 11 and that disclosure “will work a clearly defined and serious injury.”12 Generally, “‘only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault),’ is typically enough to overcome the presumption of access.”13 Ultimately, courts possess discretion to seal records,14 albeit “not . . . the traditional scope of ‘narrow review reserved for discretionary decisions based on first-hand observations.’”15 The Sixth Circuit has instructed courts to set forth a specific explanation for permitting the filing of information under seal -- an obligation that exists regardless of whether or not the

request to seal is opposed by any party.16 Absent a court’s specific findings as to why privacy concerns outweigh the public’s right to access, a summary grant of leave to file information under seal is subject to being vacated.17 Federal practitioners should be aware of this recent string of Sixth Circuit case law when negotiating the terms of a protective order and subsequently contemplating the filing of information under seal in federal court.

ENDNOTES: Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983).

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980).

3 See In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 474 (6th Cir. 1983) (noting the “long-established . . . presumptive right of the public to inspect and copy judicial documents and files”); Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016) (stating that “[t]he public has an interest in ascertaining what evidence and records the District Court and this Court have relied upon in reaching our decisions”).

4 Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1307 (11th Cir. 2001) 5 Shane Grp., 825 F.3d at 305 (citing Fed. R. Civ. P. 26(c)(1); Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002)); see also Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996), opinion clarified (May 8, 1996).

6 Id. at 306 (stating that “obligation to explain the basis for sealing court records is independent of whether anyone objects to it”); Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App’x 202, 208 (6th Cir. 2016); In re Black Diamond Mining Co., LLC, No. 15-96-ART, 2016 WL 4433356, at *3 (E.D. Ky. Aug. 18, 2016).

7 Id. at 305; Beauchamp, 658 F. App’x at 207); Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016).

8 In re Knoxville News-Sentinel Co., 723 F.2d at 476; Shane Grp., 825 F.3d at 305.

9 Shane Grp., 825 F.3d at 305-06.

10 Id. 11 Rudd Equip., 834 F.3d at 594 (holding that “a court must balance the litigants’ privacy interests against the public’s right of access”).

12 Shane Grp., 825 F.3d at 307 (quoting In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001)).

13 Id. at 308.

14 Brown & Williamson, 710 F.2d at 1177.

15 In re Knoxville News-Sentinel Co., 723 F.2d at 476.

16 Shane Grp., 825 F.3d at 306.

17 Id. (holding that, “grounds to vacate an order to seal” exist where a court fails to set forth . . . reasons …why the interests in support of nondisclosure are compelling, why the interests supporting access are less so, and why the seal itself is no broader than necessary”).

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DBA LRS

DBA Lawyer Referral Service Your Partner in Client Development

AA

s attorneys, you are familiar with the demands of building a law practice - time constraints, financial pressures and the stress of finding new clients. The Dayton Bar Association understands those demands and offers a solution. The Lawyer Referral Service (LRS) to shoulder some of the burden of marketing and screening calls.

The LRS receives 10,000 phone calls annually from citizen needing an attorney.

If you are solo or small firm attorney the LRS is a valuable source of new clients. LRS advertises its services to the community in a number of ways. Callers are screened and potential clients referred to LRIS panel members. You receive a one-time fee for the referral, paid by client. When you collect from this new client for services rendered, you pay a small percentage to LRS. You gain a client and the potential for unlimited repeat business.

Want to Refer a Caller to LRS? Have them call

937.222.6102

www.daybar.org

If you are a member of a medium to large-sized firm, participating in LRS provides the opportunity to build your client base. At the same time you supply a vital community service and network with colleagues. By participating in the DBA Lawyer Referral program, you strengthen confidence in the legal system.

The Dayton Bar Association LRS is accepting applications. A $175 fee and proof of your professional liability insurance policy are all you need to apply for membership as a panel member.

If you have any questions on the Referral Service operation, please contact Chris Albrektson at the DBA, 937.222.7902.

March 2017 Dayton Bar Briefs

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BARRISTER OF THE MONTH: CHRISTINE M. HAAKER continued from page 4

Ultimately, it would be easy to look at Christine’s career path, and be impressed that she has succeeded “despite” life challenges. In reality, though, her best assets as a litigator – creativity and a consuming need to know how things work – are skills she developed because of the early challenges in her path. After all, you learn virtually nothing by taking a car to a mechanic and picking it up the next day, whereas you can learn everything by doing, which Christine learned well before entering the legal profession. She is thus most proud of the cases where she gets to roll up her sleeves and learn everything there is to know about her client’s business.

Figuratively, of course, and literally.

By Zachary Heck Esq. Faruki Ireland & Cox P.L.L.

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Dayton Bar Briefs March 2017

Ohio Lawyers Assistance Program OLAP The Ohio Lawyers Assistance Program is a private, non-profit organization dedicated to helping Ohio's judges, attorneys and law students obtain treatment for substance abuse, chemical dependency, addiction, and mental illness.

Services offered through OLAP:

- Confidential advice about individual problems

- Help arranging and implementing formal interventions

- Help in deciding between outpatient, inpatient, and other treatment programs

- Monitoring and aftercare services

If you or a colleague you know need help, contact OLAP. Your confidentiality, the confidentiality of anyone about whom you express concerns will be protected.

OLAP Toll-Free Helpline is open 24/7 800.348.4343 www.ohiolap.org

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when clients & colleagues come looking...

where will you be found?

does the dba have your most recent contact info? contact information

Information update forms will be sent soon have you advised us of any changes?

The Directory includes: Name, Photo, Firm/Office, Address, Phone, Fax, Email Address and Supreme Court Number for all Judges, Magistrates and Attorneys, Paralegals and Legal Administrators in our database.

enhance your firm profile

l oria Pict rg bar.o

.day www 2 •

2.790

2 937.2 ry • ecto

l Dir

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Do we have a recent photo on file for you?

Submit a digital photo to publications@daybar.org, along with your name and firm. The photo must have a resolution of 300 dpi and dimensions of at least 2.0” square OR you may mail a walletsized photo to the DBA.

2016

send us your photo

n iatio

Call to make arrangements to have your photo taken for free!

Minimal charges will apply, only if you would like a digital copy of your photo to be sent to you.

al l Leg y a i r o Pict ectol r ion ga profess le r e i th f o r a D aising the b R

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need a new photo? we can help!

Form Submittal deadline April 3, 2017

r As

Designed to identify attorneys who practice in particular fields of law, and other special designations.

Select from 190 different FIELDS OF PRACTICE to identify your experience and expertise.

The Miami Valley’s most comprehensive listing of local legal professionals will soon be in the production process!

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Make your FIRM PROFILE even more meaningful by ENHANCING your listing.

Add an optional profile of your firm, attorney/staff roster and website.

The Directory includes a basic listing for all local firms in our database at no charge. You can provide directory readers with specifics regarding your firm’s areas of expertise at a fraction of the cost of a mere telephone book listing!

2017 DBA Pictorial Legal Directory

Photo of 2016 DBA LD Cover

Don’t let your face be missed in this year’s Legal Directory!

advertising opportunities

Don’t miss out on the opportunity to advertise in the “Go-To- Resource Guide” for the Dayton legal community!

We have amazing advertising rates available and you will benefit from our newest feature offered to Directory advertisers at no additional cost. Along with being printed in the Directory each advertiser will also be listed on our website at www.daybar.org in the Attorney Resource Directory!

Contact Shayla today for more information at: publications@daybar.org or 937.222.7902.

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Take advantage of the following opportunities to have your photo taken professionally, at the DBA, by Julie Noeth of Walling Photography and to make sure your DBA photo for the upcoming Legal Directory is current.

Contact Lori to set up your session at 937.222.7902 or lluebben@daybar.org:

- March 27th Monday 7:30-5:00pm - March 28th Tuesday 7:30-2:00pm - March 29th Wednesday 11:00-4:45pm

March 2017 Dayton Bar Briefs

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THE CHANCERY CLUB LUNCHEON

February 2017 Luncheon Recap

Abraham Lincoln at the Bar: Judge Langer’s Chancery Club Lecture

II

n this era of unusual presidential politics, several commentators have likened the controversies circling Donald Trump with the turbulence of Abraham Lincoln’s abbreviated presidency. As Americans, we revere President Lincoln for leading us through the abolition of slavery and the Civil War, and as lawyers, we know that Lincoln’s political career was prefaced by a lengthy and successful law practice. Some of us know that Lincoln’s nickname, “Honest Abe,” arose from his reputation as not only a skilled, but thoroughly honest and trustworthy, practicing lawyer. But, few of us have studied Lincoln’s legal career more extensively that Judge Dennis Langer who spoke to the Chancery Club on Friday, February 10, 2017, about Lincoln the lawyer.

Born on February 12, 1809, Lincoln grew up on the western frontiers of Kentucky and Indiana. In his early twenties, he served as a captain in the Illinois Militia during the Black Hawk War. Upon his return from militia service in 1832, Lincoln served as the postmaster of New Salem, Illinois. After an unsuccessful bid to the Illinois General Assembly that fall, Lincoln, with encouragement from fellow militiaman, John T. Stuart, a Springfield attorney began self-study in the law.

Over the next four years, Lincoln read the law voraciously, memorizing some of it by reciting it to himself. Those recitations occasionally left observers with some question about Lincoln’s sanity. Lincoln was admitted to the bar in 1836, and moved to Springfield to practice law with Stuart.

By the fall of 1844, Lincoln had ended his partnership with Stuart, and had begun anew with William Herndon, but not before Lincoln had met and married, Stuart’s favorite cousin, Mary Todd.

Between 1844 and 1859, Lincoln and Herndon had by all accounts a successful law practice. While Herndon did office work and legal research, Lincoln “rode the Eighth Circuit,” appearing in county courthouses throughout central Illinois, a geographic area roughly the size of Connecticut. Over his 23-year legal career, Lincoln handled more than

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Dayton Bar Briefs March 2017

The DBA wishes to thank the Eichelberger Foundation for their generosity in sponsoring these luncheons.

By Thomas J. Intili Esq. DBA Editorial Board Intili & Groves Co., LPA 5,000 cases of record, including 300 cases before the Illinois Supreme Court and one before the United States Supreme Court, Lewis v. Lewis, 48 U.S. 776 (1849), a case decided against Lincoln’s client on statute of limitations grounds. Chief Justice Roger B. Taney wrote the Court’s majority opinion. Taney is best known for writing the inarguably worst majority opinion in the Supreme Court’s history, the decision in the Dred Scott case.

In his remarks, Judge Langer focused on five of Lincoln’s most noteworthy cases: Thomas v. Wright (1846); McCormick v. Manny (1855); State v. Armstrong (1858); Bailey v. Cromwell (1841); and Watson v. Rutherford (1847).

In Thomas, the plaintiff was Rebecca Thomas, the widow of a Revolutionary War veteran, whose pension agent, Erastus Wright, had charged her a $200 fee, half her pension. In his case notes, Lincoln wrote “skin Erastus Wright” for charging the poor, frail, widow, such an outrageous fee, which he did upon bringing the jury to tears during final argument.

McCormick v. Manny was a patent case between two Illinois manufacturers of horse-drawn reapers, the McCormick Harvesting Machine Co. of Chicago (the company we know today as Navistar International Co.), and the Manny Company of Rockford. Both parties had high-powered lawyers. McCormick hired Reverdy Johnson from Baltimore, who later became the United States Attorney General under Presidents Zachary Taylor and Millard Fillmore and a Maryland United States Senator.

Manny retained Edwin M. Stanton of Pittsburgh. Because the case was filed in Springfield, Manny hired Lincoln as local counsel and paid him a handsome $500 retainer.

Knowing little about patent law or reapers, Lincoln studied and

continued on page 29

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this is YOUR chance to nominate an outstanding member of the community!

Liberty Bell

By Hon. Mary Kate Hufffman Montgomery Cty Common Pleas

EE

Award

ach May at the Chancery Club luncheon, the Dayton Bar Association honors a local citizen who has rendered outstanding service to the community with the Liberty Bell Award. The Liberty Bell Award represents the DBA’s highest honor recognizing a community partner who assists the legal profession in providing service throughout our region. Any individual, other than a lawyer or a judge may be considered for the distinguished award. Professionals working in education, business, the sciences, communications, labor, government, religious professions and youth organizations are eligible for nomination.

The 2016 Liberty Bell Award recipient was Lance Detrick, President & CEO Goodwill Easter Seals. Mr. Detrick serves as an integral part of the Agency’s growth, growing the organization into a $45 million operation.

In addition, he supervised the completion of the Agency’s new Community Services Campus in downtown Dayton. A valuable community leader in the Dayton area, Mr. Detrick demonstrates passion, innovation and commitment to serving those of greatest need in our community.

Libby Nicholson, Executive Director of CARE House, received the 2015 Liberty Bell Award. CARE House operates as a collaborative effort of the Children’s Hospital, Montgomery County Prosecutor’s Office, Dayton Police Department, Montgomery County Sheriff ’s Office and Montgomery County Job and Family Services, providing multidisciplinary responses to child victims of abuse and neglect.

In 2013 the DBA honored Chris Albrektson for her tireless and innovative leadership of the Wills for Heroes initiative and Marsha Froelich received the Liberty Bell Award in 2011 for her lifetime of service to others, particularly through her work at the YWCA and Clothes That Work.

Do you know someone in the community who, in the tradition of Lance Detrick, Libby Nicholson, Chris Albrektson, Marsha Froelich and the many other recipients of the Liberty Bell Award, serve our community in a special way? Please consider submitting a nomination to the DBA for the 2017 Liberty Bell Award. In order to be considered, nominations must be submitted by Friday, April 14th. All nominations should include biographical information on the nominee and a statement from the nominator supporting the nomination.

Past Winners Include: 1983 - Mrs. Edward Simmons 1984 - Mrs. LiVina M. Wilson 1985 - Clarence G. Stippy 1986 - Robert William Truxel & David Lants 1987 - George W. Wharton 1988 - Hazel Holmgren 1989 - Susanne Bassani 1990 - Bros. Timothy Sucher, OFM St. Vincent DePaul 1991 - Sally Keyes/Jean Ryan The Learning Tree Farm

1992 - Karen DeMasi, President Five Oaks Neighborhood Improvement Association (FONIA) 1993 - Linda Crabtree - House Maid 1994 - Rev. Philip Hoelle, SM - Dakota Center 1995 - Helenka Marculewicz, Coord GDVLP 1996 - Connie Villelli - Courts 1997 - Montgomery Cty Courthouse Volunteers 1998 - Lynda Brown Walker, Teacher Ethics Committee 1999 - Judy Dodge - DR Court

2000 - Rev. Robert E. Jones College Hill Community Church 2001 - Carl Day - WDTN 2002 - Marvin Olinsky - Five Rivers Metroparks/ Riverscape Project 2003 - Tina Patterson - The Other Place 2004 - Linda Kramer - Daybreak 2005 - Barbara Buddendeck, CASA Dir.-

Montgomery Cty CAS 2006- Eleanor Kent - Montgomery Cty

Children Service 2007 -Dr. Robert Walker 2008 - James Stahler 2009 - Sister Maria Stacy

2010 - Ellen McCloskey - Montgomery Cty Adult Probation 2011 - Marsha Froelich - Clothes at Work 2012 - Deborah Lieberman and Dr. Sherry Gale 2013 - Chris Albrektson, Wills for Heroes Dayton Bar Association 2014 - No award given 2015 - Libby Nicholson - Care House 2016 - Lance Detrick - President & CEO Goodwill Easter Seals

liberty bell nomination form I wish to nominate _______________________________ to receive the 2016 Liberty Bell Award.

I feel this nominee is deserving of the award for the following reason (Please print or type on a separate sheet; be specific). ________________________________________________________________________________________________ ________________________________________________________________________________________________ ________________________________________________ Nominated by ___________________________________ Please return by April 14th to the DBA offices by mail or email: calbrektson@daybar.org or fax to (937) 222-1308. www.daybar.org

March 2017 Dayton Bar Briefs

11

MOCK TRIAL COMPETITION

Recapping the 34th Annual Robert N. Farquhar Montgomery County High School Mock Trial Competition

Congratulations to

the Teams Advancing to

Regionals!

T T

he 2016-2017 34th Annual Robert N. Farquhar Montgomery County District High School Mock Trial Competition, coordinated by the Dayton Bar Association and held in the Montgomery County Courts Building, was held on January 20. Congratulations to the six teams that will now advance to the Regional Competition: Centerville Team Gold, Centerville Team White, CJ Team White, Springfield Team DeMOCKracy, Springfield Team Gold and Springfield Team Platinum.

This year, the case was entitled Pat Justice v. Cat News, et al., and dealt with the issue of defamation of a public official by a news station via a student reporter’s social media account.

Plaintiffs had to prove that the news station published a story with reckless disregard for the truth, and that the story damaged the public official’s reputation and caused him to lose an election. Defendants argued that the news was a constitutionally protected statement of opinion, presented without malice, and that the story could not be viewed as the proximate cause of the electoral loss.

The Ohio Mock Trial Program was established by the Ohio Center for Law Related Education. Robert N. Farquhar, who served as the 70th President of the Dayton Bar Association, is honored each year through the Mock Trial program. Robert “Nick” Farquhar passed away in 2008 and the Farquhar family graciously established a Memorial fund with the DBA Foundation in his memory. Through this program, students about the law, courtroom procedures, and the judicial system while building their critical thinking and public speaking skills.

Each team made an opening statement, directed two witnesses, cross examined two witnesses, and delivered a closing statement. The High School teams prepare for this competition throughout the high school year with the help of many volunteer judges, attorneys and teachers. The volunteer Judicial Panelists included: Hon. Margaret Quinn, Mag. Cozette Snead, Mag. Margaret Young, Hon. Dennis Langer, Hon. Guy Humphrey, Hon. Deirdre E. Logan, Stanley Hirtle, John Ruffolo, Mike Monta, and Kristina Curry. Panelists or “scoring judges” included Julia Peppo, David Hopper, Erik Blaine, William Miller, Kelli Bartlett, Mark Tuss, Michelle Sundgaard, Michael Rhinehart, Misty Connors, Robert Land, Cassandra Andres Rice, Dan Weiner, James Kelleher, Kirstie Young, Nadia Klarr, Kimberly Melchor, Gayle Miller, Brian Wildermuth, Julie Droessler, Mag. Gregory Scott, and Carla Maragano. Special thanks to DBA Executive Director Bill Wheeler and Chris Albrektson and to all who participated and volunteered their time to make this event a success.

If you have not yet volunteered to be a judge for this event, you don’t know what you are missing! The level of preparedness of the high school teams is impressive, with the majority of students having memorized their arguments after many hours of dedicated practice. As in years past, we were treated to some extraordinary performances, timely and well-reasoned objections, as well as a bit of “courtroom drama” at certain times. Everyone did a great job presenting argument, questioning witnesses or being an “in character” witness.

On behalf of the competition judges we congratulate all of this year’s participants, and good luck to the teams advancing to the next level!

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Dayton Bar Briefs March 2017

By Kristina E. Curry Esq. DBA Editorial Board Pickrel, Schaeffer & Ebeling

Centerville - Team Gold

Centerville - Team White

CJ - Team White

Springfield - Team Gold

Springfield - Team Platinum *Not pictured Deca - Team Black

celebration of life

honoring the lives of: Betty Busch Esq.

Paul L. Horstman Esq.

Harold H. Croghan Esq.

Michael J. Mullin Esq.

Peter J. Donahue Esq.

Dwight A. Washington Esq.

L. Sharon Goodall Esq.

Paul William Winks Esq.

Winn C. Hamrick Esq.

May 9, 2017 | Doors open at 11:30am | $30 (1) Table (8) $240 to register: www.daybar.org 937.222.7902

Celebration of Life Memorial Luncheon • Tuesday, May 9, 2017 To:

DAYTON BAR ASSOCIATION 600 Performance Place 109 N. Main St. Dayton OH 45402-1129

Please reserve _____ place(s) at $30.00 each.............. Total $______ Table (8)______at $240.00............................................ Total $______ -Please enclose a list of those attending-

Phone: 937.222.7902 Fax: 937.222.1308 NAME

Check # Enclosed: Charge my: VISA

MC

AmEx

(circle one)

Discover

Exp

(mo/yr)

/

ADDRESS

Signature PHONE www.daybar.org

(as shown on credit card)

March 2017 Dayton Bar Briefs

13

DIVERSITY ISSUES

Repairing the Pipeline of the Legal Profession to Eliminate the Diversity Gap O O

By Mag. Brandon C. McClain Co-Vice Chair: Diversity Issues Committee Dayton Municipal Court

ur diverse United States population is not reflected in the legal profession. To better understand the absence of minority attorneys, we must start with the demographic makeup of the country. The nation's population is comprised of 5 percent Asians, 12 percent AfricanAmericans, 17 percent Latinos and 63 percent Whites.1 Four percent of the nation's population identifies as lesbian, gay, bisexual or transgender (LGBT).2 While our nation is a diverse and multicultural population, the legal profession has not progressed in the same fashion. In fact, the profession is significantly less diverse than the nation it serves. Approximately 4 percent of all attorneys are Latinos, 5 percent are African-Americans, 3 percent are Asians and 88 percent are Whites.3 Also, 2.5 percent of all attorneys identify as members of the LGBT community.4 Thus, minorities account for more than 33 percent of the United States population, but only 12 percent of the legal profession. While lacking diversity within the profession can negatively impact members of the LGBT community, this article will only discuss racial and ethnic diversity.

Due to the profession lacking significant racial and ethnic diversity, many important perspectives and ideas are not utilized acknowledged, or even implemented within the legal system. As a profession, we are stifling ourselves by lacking diversity. For the profession to adequately evolve, increasing racial and ethnic diversity must be a priority. As the American Bar Association has recognized, diversity in the legal profession must be addressed prior to an individual becoming an attorney; as the pathway to the legal profession "extends from kindergarten to bar passage."5 Pipeline programs are imperative to attract minority people to the profession while retaining minority attorneys. Pipeline programs focus on attracting minority people to the profession by providing specialized training to high school and college students and facilitating their eventual progression from law student to lawyer.6 2017 Legal Outreach, New Jersey Legal Education and Empowerment, and the Law and Leadership Institute are examples of pipeline programs focused on attractThe Diversity Gap in the ing minority people to the profession. These programs encompass some aspect Legal Profession of introducing students to legal issues in middle school; attending in-school and after-school classes about criminal law, constitutional law and the legal process; and facilitating law related workshops, skill practice and moot court competitions.7 Pipeline programs that pursue the underrepresented are essential to enriching seminar diversity within the legal profession. However, inclusion, like diversity, must be a agenda: significant focus within the legal profession to ensure professional development and advancement. Diversity without inclusion creates invisibility, making pipeline programs centered on retention vital.

8:30-9:00am The Diversity Gap in Pipeline programs concentrate on retaining minority lawyers through "mentorthe Legal Profession ing, sponsorships, networking, using affinity groups and other programs to reduce Assistant Dean Staci Rucker, the sense of social isolation that [minority] attorneys often experience."8 While University of Cincinnati College of Law these initiatives can be effective in promoting the retention of minority attorneys within the profession, they are imperfect. Bias can significantly hamper mentoring 9:00-9:50am Repairing the Pipeline in Dayton Region continued on page 31 SWEL - Assistant U.S. Attorney Kenneth Parker

join us for the

DIVERSITY DAY:

Minority Clerkship - Robert L. Gresham Esq. PARITY – Marsha Greer, Law and Leadership Institute

ENDNOTES: Census: White majority in U.S. gone by 2043, U.S. News, http://usnews.newsvine.com/_ news/2013/06/13/18934111-census-white-majority-in-us-gone-by-2043.

1

9:50-10:05am Break 10:05-10:55am Diverse Recruitment and Retention WilmerHale - Discovery Attorney Admin. Manager, Nathan Croumer Esq. City of Dayton - Director of Human Resources, Ken Couch Wright Patt PNC General Counsel of Focus Care, Inc.- Kevin Conner Esq. 10:55-11:45am Breakout Session: Hiring, Retention, Recruitment, Mentoring, Advancement & Pipeline 12:00pm Lunch + Keynote Speaker The Honorable Fanon Rucker 14

Dayton Bar Briefs March 2017

2 Press Release, the Williams Institute at UCLA School of Law, New Studies Offer Estimates of LGBT Population and Married Same-Sex Couples. (September 29, 2014), http://williamsinstitute.law.ucla.edu/ press/press-releases/29-sept-2014/

American Bar Association: Lawyer Demographics Year 2016, American Bar Association, http://www. americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographics-tables-2016. authcheckdam.pdf.

3

Stay Connected, NALP- National Association for Law Placement,

4

LGBT Representation Among Lawyers in 2016, http://www.nalp.org/0117research.

Paulette Brown, Greater diversity and inclusion in the legal profession will help achieve justice

5

for all, ABA Journal, http://www.abajournal.com/magazine/article/greater_diversity_and_ inclusion_in_the_legal_profession_will_help_achieve_j.

Richard, Meade. Life Cycle of Diversity Programs. (pp. 78-87). Clark, C.J., & Reasoner, A. (Eds.), IILP Review 2014: The State of Diversity and Inclusion in the Legal Profession (2014). Chicago, IL: IILP.

6

7 8

Id. at 80.

Id. at 79.

937.222.7902

DBA EVENTS

www.daybar.org

March 2017 Dayton Bar Briefs

15

daybar.org/cle Rules of Evidence – All You Ever Wanted to Know About Hearsay (video replay)

Wed. March 15, 2017 • 1:00-3:30pm 2.5 CLE Hours • Seminar #1617-094 M $105 | NM $150 | PP $0 Presented by: Judge Mary Katherine Huffman, Montgomery Cty. Common Pleas Ct. Join the DBA for a new seminar series for new attorneys who want an in-depth primer on the Rules of Evidence and experienced attorneys looking for a refresher on evidence. This will be part two of a series reviewing and analyzing each Rule of Evidence in detail.

DBA Workers Comp & Social Security Committee presents:

Social Security Update and Review

Thurs. March 16, 2017 • Noon-1:00pm 1.0 CLE Hour • Seminar #1617-095 M $35 | NM $45 | PP $0 *Special Committee Member Price $25 Presented by: Theresa Busher Esq., Public Affairs Specialist, Dayton Social Security Ofc. LaToya Cherry Esq., Hearing Ofc. Dir., Ohio Ofc. of Disability Adjudication and

Review, Dayton Lindsey Posey Esq., Senior Attorney, Milwaukee Hearing Ofc. Topics Include: -Brief Overview of the Sequential Evaluation Process and Role of ODAR -Regulations Update: Revised Mental Listings and Evaluation of Medical Evidence (“Treating Physician Rule”) Update -Dayton ODAR Statistics -Best Practices for Disability Hearings (preparation and participation)

spring cle

visit www.daybar.org to sign up today!

2017 Probate Law Institute

Friday, March 10, 2017 Sinclair Community College, Bldg 12 *See details on page 19

2017 Diversity Day

Friday, April 7, 2017 Sinclair Community College, Bldg 12 *See details on page 15

2017 Annual Domestic Relations Seminar Friday, April 21, 2017 Sinclair Community College, Bldg 12 *See details on page 16

Upcoming April CLE DBA Labor and Employment Committee presents:

Immigration Law Update Professional Conduct: The Top 10 Ethics Mistakes (video replay)

Fri. March 24, 2017 • 8:30-11:45am 3.0 CLE Hours Professional Conduct • Seminar#1617-089 M $105 | NM $150 | PP $0 Presented by: John Ruffolo Esq., DBA Bar Counsel Marc Tuss Esq. Denise Platfoot-Lacey, Assoc. Prof. of Externships, UDSL During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences.

The Rules and Example cases will be provided to all attendees.

THE GTMO MISSION (video replay) The Story Behind the Headlines – Guantanamo Bay, Cuba

Thurs. March 30, 2017 • 9:00-12:15pm 3.0 CLE Hours • Seminar#1617-096 M $105 | NM $150 | PP $0 Presented by Distinguished Group of Panel Members: Justice Steven David, Indiana Supreme Court Kermit Lowery Esq., DBA Immediate Past Pres.; Vice Pres. and Asst. Gen.

Counsel at Lexis Nexis Dale Vitale, Ohio Atty. Gen. Ofc., Principal Asst. Atty. Gen. Hear from a distinguished panel, who were there, serving in a legal capacity Learn more about the background and current happenings in the Guantanamo Bay, Cuba situation as well as insights into military law.

Agenda: 9:00am GTMO Establishment and History - The Early Years 10:00am GTMO Legal Processes 11:00am Break 11:15am Other Unique Legal Issues

Tues. April 11, 2017 • 12:00-1:00pm 1.0 CLE Hour • Seminar #1617-093 M $35 | NM $45 | PP $0 *Special Committee Member Price $25 Presented by: Kathleen Kersh, Advocates for Basic Legal Equality Agenda: I. Immigration statuses and visa types II. Brief overview of immigration status, work authorization and tax obligations III. Recent changes to immigration policy by President Trump’s administration

Annual Domestic Relations Seminar

Fri. April 21, 2017 • 9:00-4:15pm 5.75 General CLE Hours incl. 1.0 Professional Conduct • Seminar#1617-098 M $215 | NM $300 | PP $30 *Printed materials $30 **(Please note that materials will be sent electronically a few days prior to the program) Sinclair Community College, Bldg 12 Buffet Lunch & Parking Included!

Agenda: 9:00-10:00am Ohio Domestic Relations Update

Gary Gottfried 10:00-10:45am Montgomery Cty Domestic Relations Ct Update

Judge Denise Cross & Judge Timothy Wood 10:45-11:00am Break 11:00-12:00pm Ethics and Professionalism

Joseph Caliguiri 12:00-1:00pm Lunch (included) 1:00-2:00pm Overview of Military Divorce

Dalma Grandjean 2:00-3:00pm Guardian ad Litems

Lori Cicero 3:00-3:15pm Break 3:15-4:15pmWarren County Domestic Relations Ct Update

Judge Joseph Kirby

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Dayton Bar Briefs March 2017

937.222.7902

DBA CLE Registration Form Member

Passport Holder

NonMember

CLE Seminar #(s) __________________________________

Name(s) ____________________________________________________________________________________ Firm/Company ______________________________________________________________________________ Address ____________________________________________________________________________________ City, State + Zip______________________________________________________________________________ Phone _____________________________E-mail ___________________________________________________ Enclosed is my check in the amount of $______________ (made payable to the Dayton Bar Association) Please charge my credit card the amount of $__________

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March 2017 Dayton Bar Briefs

17

COMMUNITY PROJECTS

DBA Members Have Generously Supported Clothes That Work During November, December and January, the DBA partnered with Clothes That Work in collecting business apparel to help others empower, maintain and secure employment by donating appropriate business attire.

Thank You!

FASTCASE Attorney and practicing paralegal members of the Dayton Bar have access to Fastcase for free. Unlimited search using Fastcase’s smarter legal research tools, unlimited printing, and unlimited reference support, all free as a benefit of DBA membership. Fastcase’s apps for iPhone, Android and iPad connect to your bar account automatically by Mobile Sync.

FREE WEBINARS!

Fastcase provides free live training webinars so that you can learn how to use Fastcase right from the comfort of your own computer.

View Upcoming Webinar offerings below.

Introduction to Legal Research Thu. Mar 2 @ 1:00 - 2:00pm Introduction to Fastcase 7 Mon. Mar 6 @ 1:00 - 1:30pm Mon. Mar 13 @ 1:00 - 1:30pm Mon. Mar 20 @ 1:00 - 1:30pm

Advanced Tips for Enhanced Legal Research on Fastcase Thu. Mar 9 @ 1:00 - 2:00pm Introduction to Boolean (Keyword) Searches Thu. Mar 16 @ 1:00 - 2:00pm

Intro to TopForm Web Mon. Mar 6 @ 12:00 - 12:30pm Mon. Mar 13 @ 12:00 - 12:30pm Mon. Mar 20 @ 12:00 - 12:30pm

view more at fastcase.com/webinars 18

Dayton Bar Briefs March 2017

937.222.7902

www.daybar.org

19

DBA RISING STAR

Rising above Starsthe Bar Magistrate Brandon C. McClain

A

North Carolina native, Magistrate McClain’s mother -- who he refers to as a saint -- instilled upon a young Brandon the importance of community and the duty to help others. Inspired by his mother, who sadly passed away in 2007, Magistrate McClain launched his pursuit for big dreams. With any success achieved, his mother was there to show pride for his achievements . . . and to remind him that he could always improve.

As a youngster, Magistrate McClain discovered his interest in the law by watching the O.J. Simpson criminal trial on Court TV. Captivated by the passion, eloquence and persuasiveness of Simpson defense attorney Johnnie L. Cochran, Jr., Magistrate McClain discovered the vehicle he would use to further his call to service -- the practice of law.

To feed his passion for the law and public service, Magistrate McClain studied criminal justice at the University of North Carolina at Pembroke, where he graduated cum laude in 2007. While at UNC-Pembroke, he also served in the Army National Guard. After years of service to the Guard, Brandon rose to the rank of Sergeant -- and at age 22, is one of the youngest guardsmen to reach such rank.

Magistrate McClain’s service to the Army National Guard ended upon his honorable discharge from service in 2009.

After receiving his undergraduate degree, Magistrate McClain continued his educational pursuits by first furthering his criminal justice studies at the University of Cincinnati, where he received a Master’s of Science in the field in 2010. While enrolled at UC, Magistrate McClain also enrolled at the University of Dayton School of Law, where he earned his Juris Doctor after completing the two-year program in 2011.

Upon entering the practice of law, Magistrate McClain started his own law office in Beavercreek. While a general practitioner, his cases included state and federal criminal defense, domestic relations, juvenile, and some civil work. After about two years of private practice, the public sector called, and Magis-

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Dayton Bar Briefs March 2017

trate McClain accepted a position as an Assistant Public Defender at the Montgomery County Public Defender’s Office.

As an Assistant Public Defender, Magistrate McClain’s first assignments were on the misdemeanor docket at the Dayton Municipal Court and Judge Dennis Adkins’s Veterans Court at the Montgomery County Common Pleas Court. Given a heavy caseload, Magistrate McClain had to quickly learn how to efficiently and effectively handle a great number of clients and cases, all of whom presented different personalities and life circumstances.

While at the Public Defender’s Office, Magistrate McClain admired the work ethic and dedication of the entire staff and the overwhelming support he received from his colleagues. The standard of professionalism displayed at the Public Defender’s office is something Magistrate McClain admires greatly, and the standard he hopes to display throughout his legal career. His experience as a Public Defender left Magistrate McClain truly convinced that public defenders and their staff are the “unsung heroes of the legal system.”

Of his service with the Public Defender’s office, Magistrate McClain states: “I am truly grateful to the Montgomery County Public Defender’s Office for allowing me the opportunity to be a member of a legal team focused primarily on serving the underserved. The members of that legal team taught me how to navigate the daily challenge of doing more for your clients with less. I also learned that success cannot be so easily determined by your wins and losses, but rather the impact you have on the lives of those you serve.”

After two-and-a-half years serving the community as an Assistant Public Defender, McClain was sworn in as a Magistrate of the Dayton Municipal Court in December

2015 -- at the young age of 29. Having now been on the Municipal Court bench for over a year, Magistrate McClain states: “My first year on the bench has been both rewarding and humbling. Rewarding in that I have been blessed with the opportunity to make decisions that can effectuate change within a person’s life for the better; humbling in that my position affords me the opportunity to directly address many of the issues that exist within my own community.”

With the Municipal Court, Magistrate McClain hears a variety of cases greatly impacting the citizens of the City of Dayton, such as misdemeanor and traffic offenses, expungement hearings, dog designation hearings, dog impoundment hearings, garnishment and/or attachment proceedings, debtor examinations, eviction trials, escrow actions, small claims cases ($6,000 and below), and any other civil matter referred to him by a municipal judge.

The Honorable Carl S. Henderson, Presiding Judge of the Dayton Municipal Court, states that “Brandon has been a great addition to our judicial staff. I am impressed with his judicial temperament, legal skills and knowledge. Brandon has a very bright future.” The Honorable Deirdre E. Logan states “I’ve had the opportunity to observe Brandon as a lawyer, a magistrate, and in his personal endeavors.

I’ve also worked with him on community projects. Professionally he is genuine and kind

continued on page 21

937.222.7902

RISING STAR: MAG. BRANDON C. MCCLAIN continued from page 20

while also being fair. Personally is he charming, funny and he has a deep commitment to family. Bottom line, using any method of measurement Brandon is a good and honorable person.”

Outside of his official duties, Magistrate McClain’s public service to the Dayton community extends beyond the courthouse. He serves on the Greater Dayton Volunteer Lawyers Board of Directors, the DayMont Board of Trustees, Sinclair College Paralegal Advisory Committee, and as vice-chair of the Dayton Bar Association’s Diversity Committee.

Asked about what he hopes to accomplish in the future, Magistrate McClain’s focus humbly remains on serving the public by remaining an active member of the community, and contributing in some way to the continued success of the City of Dayton.

By Michael N. Rhinehart Esq. Vice Chair: Federal Practice Committee US Dist. Ct, Southern Dist. of Ohio

www.daybar.org

March 2017 Dayton Bar Briefs

21

Playing on U.D. BASKETBALL TEAM Good Training for Practicing Law TT

here have been five attorneys from Montgomery County who played on U.D.’s basketball team -- Pat Allen, Stan Greenberg, Kenny May, Danny O’Brien, and Paul Winterhalter (in alphabetical order.)

Pat Allen said, “Any successful trial lawyer will tell you that preparation is all important in presenting a successful case. I consider my basketall experience as having been a key factor in my trial career. I had a great mentor at my very small high school in southeastern Ohio. There were 28 boys in all four grades. I learned preparation, strategy, cooperation, and most of all, competition, all of which are needed at trial Although I scored a lot of points, I was recruited only two colleges.

U.D. was the division 1 school. As a freshman there, along with 15 other recruits in a time when freshman could not play varsity, I was a third team center and was never 6’6” tall as stated in the game programs.”

Pat said, “The training by my high school coach was instrumental in my being selected as a starting forward for Tom Blackburn in 1958-1959. For that year and my remaining two years, I would be mostly a 6th man or start as forward or center. My experiences playing and defending against forwards or centers who were much better, inches taller and 40-60 pounds heavier helped me in my cases against defense attorneys who were better than I.” “ One of my saddest experiences concerned my fellow teammate, Stan Greenberg. He was a critical piece of our puzzle as a junior at guard - no ‘point guard’ in those days. Unfortunately, our senior year he opted not to play, since he was elected student body president. We went on to have a good year, 4th in the NIT, which was a very prestigious tournament nationwide in those days. I have always thought that we might have done a little better if Stan had been with us.”

It is unfortunate that our young DBA members never met Stan. He was an excellent lawyer who eventually confined his practice primarily to divorce work.

He was one of our original 16, and I’m sure that the lessons he learned playing basketball in PA in high school and at U.D. helped him in his handling of clients and relationships wih judges and attorneys. He died prematurely in 2003 and I still miss that guy.”

By Mary KC Soter Esq. DBA Editorial Board Soter Law Office

Danny O’Brien only played on the U.D. team for one year. He then switched to an academic scholarship to complete his education .

Paul Winterhalter said that Pat Allen was a senior when he was on the team.

There were five Catholics on the team in 1962. They went to New York and played in Madison Square Gardens. Paul said you could drink in New York at 18. They were told that if they won, they could stay out till 1:00am. They won, and they were planning on going out and painting the town until 1:00am. Pat Allen said, “Hey you rookies, we’re going to St. Patrick’s Cathedral for mass. Be here at 7:30 am “ Paul referred to Pat as the “Good Shepherd.”.

Kenny May played in the U. D. fieldhouse and then he played in the U.D. arena during the 1968-l969 season. He said that they went to the NCAA tournament two years, and the NIT one year – his senior year. He loved the team. He was inducted into the U. D. Athletic Hall of Fame.

Photo Captions from Top Right to Counter-Clockwise: Paul Winterhalther Esq. (seated 5 person) Pat Allen Esq. (black and white photo) Stan Greenberg Esq. UD Program featuring Kenneth May Esq. Kenneth May Esq. *Photo not available for Danny O'Brien Esq.

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937.222.7902

2016-17

Sustaining

Members

The DBA strives to be a leader in the Dayton community by continuing the legacy of excellence in the legal profession via development opportunities, quality programming on substantive issues, and guidance through ethical and professional issues.

The DBA Association would not be the strong organization that it is without members like you and the additional support provided by our sustaining members.

Sustaining Memberships help enable the DBA, to provide new initiatives/programs and provide a greater sense of community amongst our attorneys. A voluntary annual contribution of $75. If you are interested in becoming a Sustaining Member, simply indicate your contribution(s) on your membership form and return your payment or become a Sustaining Member at: www.daybar.org.

The DBA would like to acknowledge the contributions made by the Sustaining Members for the 2016-2017 fiscal year. With voluntary payments over and above normal dues, Sustaining Members are essential to the work of the Dayton Bar Association. The funds provided by their membership allow continued support of programs and services that benefit members, the Greater Dayton legal community, and the legal profession.

Thank you to our Sustaining Members for the 2016-2017 Bar year:

Honorary Sustaining Once deemed an Honorary Member of the Association, the member is exempt from the payment of dues. However, there are those who take their honorary status in title only and continue to support the Association with contributions. We wish to thank and recognize the following exemplary members: Joseph P. Buchanan Esq. Hon. William A. Clark Robert J. Hadley Ralph E. Heyman Esq. Richard M. Hunt Esq. Thomas E. Jenks Esq. William H. Macbeth Esq. Hon. Walter Herbert Rice William A. Rogers Jr. Esq. Marshall D. Ruchman Esq. Jon M. Sebaly Esq. Charles W. Slicer Sr. Esq. Joseph V. Tassone Esq. Louis E. Tracy Esq.

Sustaining Members Hon. Dennis J. Adkins Charles F. Allbery III Esq. James T. Ambrose Esq. Debra B. Armanini Esq. Kevin W. Attkisson Esq. Gary W. Auman Esq. Theresa A. Baker Esq. Rebecca A. Barthelemy-Smith Esq. Richard J. Beckmann Esq. Harry G. Beyoglides Jr., Esq. Amy R. Blair Esq. Susan Blasik-Miller Esq. Robert M. Blue Esq. Gary M. Blumenthal Esq. Randall N. Bothmann Esq. Richard A. Boucher Esq. Karen D. Bradley Esq. Dwight D. Brannon Esq. Joan B. Brenner Esq. Matthew D. Bruder Esq. www.daybar.org

Ronald L. Burdge Esq. Sam G. Caras Esq. Frederick J. Caspar Esq. Robert L. Caspar Jr. Esq. William O. Cass Jr. Esq. Mark R. Chilson Esq. Charles A. Claypool Esq. John M. Cloud Esq. Brett L. Coakley Esq. Rebecca A. Cochran Esq. Brooks A. Compton Esq. W. Michael Conway Esq. Christopher F. Cowan Esq. Jeffrey T. Cox Esq. Dale E. Creech Jr. Esq. F. Ann Crossman Esq. Mag. John A. Cumming Robert M. Curry Esq. Wayne H. Dawson Esq. James D. Dennis Esq. Larry J Denny Esq. Richard G. Denny Esq. Karen R. Dillon Esq. Martina M. Dillon Esq. Stephanie D. Dobson Esq. Marilyn R. Donoff Esq. Daryl R. Douple Esq. Jenna M. Downey Esq. Hon. Frederick W. Dressel Trisha M. Duff Esq. Michael E. Dyer Esq. Joseph R. Ebenger Esq. William B. Elliott Esq. Douglas A. Fannin Esq. Charles J. Faruki Esq. Jonathan E. Faulkner Esq. Benjamin D. Felton Esq. Francesco A. Ferrante Esq. James L. Finefrock Esq. Patrick A. Flanagan Esq. Canice J. Fogarty Esq. Martin A. Foos Esq. Neil F. Freund Esq. Gary L. Froelich Esq. Carmine M. Garofalo Esq. Charles F. Geidner Esq. Caroline H. Gentry Esq. Daniel J. Gentry Esq.

Mark E. Godbey Esq. Michael A. Ledbetter Esq. Hon. Barbara P. Gorman William J. Leibold Esq. Gary W. Gottschlich Esq. Gary J. Leppla Esq. David B. Grieshop Esq. Dennis A. Lieberman Esq. Ted Gudorf Esq. Richard A. F. Lipowicz Esq. Dennis E. Gump Esq. L. Anthony Lush Esq. Christine M. Haaker Esq. Michelle M. Maciorowski Esq. David A. Haffey Esq. Barry W. Mancz Esq. Hon. Michael T. Hall Douglas A. Mann Esq. Paul G. Hallinan Esq. Laura G. Mariani Esq. Laura G. Harrelson Esq. David W. Marquis Esq. Jennifer Hann Harrison Esq. M. Todd Marsh Esq. Aaron P. Hartley Esq. Laura J. Martin Esq. James K. Hemenway Esq. Dianne F. Marx Esq. Lawrence W. Henke lll Esq. Craig T. Matthews Esq. R. Mark Henry Esq. Ronald J. Maurer Esq. Hon. James A. Hensley Jr. Hon. Frances E. McGee J. Michael Herr Esq. Hon. John M. Meagher James P. Hickey Esq. Hon. Michael R. Merz Stanley A. Hirtle Esq. Adam R. Mesaros Esq. Jonathan Hollingsworth Esq. David P. Mesaros Esq. Carol Jacobi Holm Esq. Stephen D. Miles Esq. Steven B. Horenstein Esq. Michael Bramlett Miller Esq. Hon. Mary Katherine Huffman John R. Mohr Esq. Kenneth J. Ignozzi Esq. Brian A. Muenchenbach Esq. Thomas J. Intili Esq. Hon. Michael J. Newman D. Jeffrey Ireland Esq. Bruce I. Nicholson Esq. David E. Izor Esq. Victoria L. Nilles Esq. Matthew R. Jenkins Esq. Wayne P. Novick Esq. William A. Jividen Esq. Hon. Timothy N. O'Connell Keith R. Kearney Esq. Alvarene N. Owens Esq. Thomas W. Kendo Jr. Esq. Bryan K. Penick Esq. Richard A. Killworth Esq. Timothy G. Pepper Esq. Scott A. King Esq. Maureen Pero Esq. Tami Hart Kirby Esq. Nathaniel S. Peterson Esq. James R. Kirkland Esq. Hon. James D. Piergies Richard G. Knostman Esq. John D. Poley Esq. Thomas A. Knoth Esq. Vincent P. Popp Esq. Julia C. Kolber Esq. Robert E. Portune Esq. Channing M. Kordik Esq. Cara W. Powers Esq. James G. Kordik Esq. Thomas G. Rauch Esq. Edward M. Kress Esq. Sherri L. Richardson Hon. Michael W. Krumholtz John Paul Rieser Esq. Konrad Kuczak Esq. Hon. Adele M. Riley Judith A. LaMusga Esq. John H. Rion Esq. Hon. Dennis J. Langer Jon Paul Rion Esq. Laurence A. Lasky Esq. Edward N. Rizer Esq. Erin M. Laurito Esq. Paul B. Roderer Jr. Esq.

John M. Ruffolo Esq. Marybeth W. Rutledge Esq. Jason J. Saldanha Esq. B. Joseph Schaeff Esq. Seth W. Schanher Esq. Steven P. Schmidt Esq. Alfred W. Schneble III Esq. Carl D. Sherrets Esq. Thomas W. Simms Esq. Hon. Gregory F. Singer Hon. Richard S. Skelton Ralph A. Skilken Jr. Esq. Charles W. Slicer lll. Esq. John A. Smalley Esq. Bradley C. Smith Esq. Edward M. Smith Esq. John D. Smith Esq. R. Todd Smith Esq. Brian A. Sommers Esq. Mary K.C. Soter Esq. Lu Ann Stanley Esq. Mark E. Stone Esq. Jeffrey A. Swillinger Esq. Joseph R. Tafelski Esq. Thomas B. Talbot Jr. Esq. Jennifer D. Theibert Esq. Maxine S. Thomas Esq. Ira H. Thomsen Esq. Merideth A. Trott Esq. Hon. Michael L. Tucker Mark A. Tuss Esq. Timothy N. Tye Esq. Paul M. Ulrich Esq. Michelle S. Vollmar Esq. H. Charles Wagner Esq. Geoffrey P. Walker Esq. Joseph W. Walker Esq. Robert C. Walter Esq. Brian D. Weaver Esq. George L. Wenz lll Esq. Ellen C. Weprin Esq. James I. Weprin Esq. Thomas P. Whelley ll Esq. Mathew E. Willenbrink Esq. Jeffrey A. Winwood Esq. Hon. Mary L. Wiseman Michael L. Wright Esq. Patricia A. Zimmer Esq. March 2017 Dayton Bar Briefs

23

FROM THE JUDGES DESK

You’ve Come a LongWay, Baby in the

Legal Profession

Women

LL

ong before 1968 and the women’s movement, a humble young lady from Lima, Ohio, Betty Busch, rejected the stereotypical and traditional role of a female in the legal world at the time – that of secretar y or court-reporter – and embarked on a career as an attorney. Betty, who passed away at the age of 87 on January 27, 2017, graduated from Ohio Northern University Pettit College of Law in 1960. At the time of her matriculation, Betty was just the twenty-seventh female graduate of the ONU College of Law in its seventy-three year history, which represented less than .04% of the alumni from the College.

The female student population at Ohio Northern generally reflected student enrollment around the country at the time. Of the approximately 37,700 students enrolled in all U.S. law schools in 1960, only 3.4%, or approximately 1,200, were women.

Betty and the one other female in the 1960 graduating class at ONU certainly faced many challenges in an overwhelmingly male-dominated educational environment and profession. Employability and respect from male attorneys represented significant challenges for female attorneys throughout the 1960’s. An article entitled “Women Unwanted,” published in the Harvard Law Record in December, 1963, detailed results of a survey of law firms relating to female candidates for employment. Being a woman rated at minus 4.9 on a scale of minus ten to plus ten, which was lower than the rating for students graduating in the lower half of the class or for African American employment candidates. Some of the reasons cited by survey respondents for the negative rating of female candidates for employment included: “Women’s can’t keep up the pace;” “bad relationship with the courts;” “responsibility is in the home;” and “afraid of emotional outbursts.”1 Despite the obstacles and negative perceptions of females in the profession, Betty, and her contemporaries pioneered opportunities for future generations of women as lawyers.

After working as a clerk for Judge Moran Jenkins in Lima for several years, Betty moved to Dayton, where she practiced in a private firm for three years. In 1965, Betty blazed new trails for female attorneys, becoming the first female judicial officer to serve in Montgomery County, when she was appointed as a referee (now referred to as a magistrate) in the Montgomery County Common Pleas Court, Domestic Relations Division. Betty’s foray into the judiciary paved the way for women in the Dayton Bar community to serve the public as judicial officers. It was not until 1976, though, that the first female, Judge Lillian Kern, was elected as a Common Pleas Judge in Montgomery County. By 2009, though, half of the sixteen judges in the four divisions of the Montgomery County Common Pleas Court were women.

24

Dayton Bar Briefs March 2017

By Hon. Mary Kate Huffman Montgomery Cty Common Pleas Court

Betty left her judicial role in 1971, serving as the Director of the Dayton Law Library for almost twenty-two years. In the 57 years Betty Busch was a licensed attorney in Ohio, monumental change has occurred for women in the law. In 2016 females represented 36% of the licensed lawyers in the United States. Women accounted for almost 48% of law school enrollment during the 2013-2014 academic year.

An American Bar Association study published in May, 2016 revealed that women now make up 24% of the general counsel of Fortune 500 companies. Thirty-one percent of law school deans are women. Women account for 49% of all law school editorsin-chief. Women represent 27% of all federal and state judges. Salaries and equity partnership representation for female attorneys, though, continue to lag significantly behind male counterparts.2 In recognizing the unique challenges women face in the profession, the Dayton Bar Association launched the Women in Law Forum, bringing together members of the bar to discuss and collaborate on professional concerns of female attorneys.

While challenges remain for female attorneys, particularly in achieving partnership and salary parity, Betty and the other female pioneers in the profession who entered the practice of law when their numbers were miniscule and they faced substantial personal, professional and social obstacles to their chosen work, have made the journey for women today much easier.

Thanks to Betty and the women like her, we can say to women in the legal profession today, “You’ve Come a Long Way, Baby.”

ENDNOTES:

For a thorough and very interesting discussion of the women in the legal profession between the 1920’s and the 1970’s, see Women in the Legal Profession from the 1920’s to the 1970’s: What Can We Learn From Their Experience About Law and Social Change? 61 ME. L. REV. 1 2009.

2 “A Current Glance at Women in the Law,” AMERICAN BAR ASSOCIATION, COMMISSION ON WOMEN IN THE PROFESSION, (MAY, 2016).

1

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937.222.7902

25

LOCAL RULES

Proposed Revisions of Local Rule 4.27(F) of the Domestic Relations Division COMMENTS DUE BY: March 31, 2017

COMMENTS REQUESTED: Pursuant to Rules of Superintendence for the Courts of Ohio, Rule 5 – Adoption of Local Rules, proposed revised local rules are being published for a public comment period until March 31, 2017.

PROPOSED AMENDMENT TO LOCAL RULE 4.27(F): The following amendment to Local Rule 4.27(F) increases the prima facie reasonable attorney fee from $350.00 to $500.00 per hearing conducted or prepared for, in modification and enforcement proceedings. The remainder of Local Rule 4.27 remains unchanged.

This amendment shall be effective as of April 1, 2017.

RULE 4.27 AWARD OF ATTORNEY FEES: (F) Reasonable Fee. In determining the necessity for and reasonableness of attorney fees, the court may use its own knowledge and experience, plus its own observations of time and effort expended, tactics used, discovery cooperation shown, settlement efforts made, and compliance with court orders demonstrated. The court may also consider the amount of attorney fees the opposing party incurred in the same matter.

Absent evidence to the contrary, the following shall be considered a prima facie reasonable attorney fee: up to $500.00 per hearing conducted or prepared for, in modification and enforcement proceedings; and up to $1,000 in divorce, legal separation, annulment, appeal, and custody proceedings.

Comments on the proposed revised local rules can be submitted in writing to: Keith R. Hall, Legal Administrator Montgomery County Domestic Relations Court 301 W. Third Street, 2nd Floor P.O. Box 972 Dayton, Ohio 45422 hallk@mcohio.org

Comments must be received by Friday, March 31, 2017

26

Dayton Bar Briefs March 2017

937.222.7902

2017

Paralegal Day Celebration Wednesday, April 12th 11:30-1:00pm Sinclair College, Bldg 7 (Tartan Marketplace)

Hosted by:

Sinclair Community College Paralegal Program with additional sponsorships from the legal community.

Please join your colleagues in the legal community, including judges, attorneys, paralegals, and support staff, as we recognize paralegal contributions to the legal profession.

Individual tickets:

$15.00 per person, incl. lunch and parking pass

Return nominations and reservations:

Sinclair Community College Paralegal Program 444 West Third St., Rm 5141 Dayton, OH 45402

Checks payable to:

Sinclair Foundation Paralegal Day

Questions?

(937) 512-2616 or paralegal@sinclair.edu

Thank you for your participation and we look forward to seeing you and your paralegal staff at this event!

Paralegal Day Celebration Program 11:30–12:00pm Registration and Silent Auction 12:00–1:00pm Program

Please join us to see the next Paralegal of the Year award be presented. The celebration will include a key note speech regarding the Paralegal profession as well as a silent auction with proceeds benefiting Sinclair Paralegal Scholarships.

To nominate an outstanding Paralegal on your staff, please go to the below link to find the nomination form:

http://tinyurl.com/ParalegalDay

DEADLINE FOR NOMINATIONS: Friday, March 24th SPONSORSHIPS:

We hope you will continue to be, or will become, a sponsor of this exciting event: SILVER - $75 Your firm's name in the program as Silver Sponsor, (2) tickets and parking passes to the event ($45 tax deductible)

GOLD - $150

Your firm’s name in the program, as Gold Sponsor, (5) tickets and parking passes to the event ($75 tax deductible)

PLATINUM - $250

Your firm’s name in the program as Platinum Sponsor, (10) tickets and parking passes to the event ($100 tax deductible)

NOMINATION, REGISTRATION & SPONSORSHIP FORM: http://tinyurl.com/ParalegalDay

27

CHANCERY LUNCHEON : Abraham Lincoln at the Bar continued from page 10 worked for months to educate and prepare himself for trial, eager to match wits with the famous Reverdy Johnson. Ultimately, the July trial was moved to Cincinnati. When Lincoln arrived, Stanton was determined not to associate with “such a damned, gawky, long-armed ape as that.” He referred to Lincoln as a “long, lanky creature from Illinois, wearing a dirty linen duster for a coat and the back of which perspiration had splotched wide stains that resembled a map of the continent.”

Though Lincoln was supposed to be one of Manny’s trial lawyers, Stanton would not allow him sit at counsel table relegating him to a seat with the spectators. After Manny’s victory, Stanton sent the humiliated Lincoln a $2,000 check, which Lincoln returned feeling that he had not earned it. When Stanton sent it back, Lincoln kept it only because he had many debts to pay. He split the proceeds with his partner, Herndon.

Though painful, Lincoln benefitted greatly from the Manny case. By observing Johnson and Stanton, he gained confidence and improved his courtroom skills. Seven years later, Lincoln would be the President of the United States in search of a Secretary of War. He chose Stanton despite his insult in Cincinnati. When Lincoln drew his last breath, it was Secretary Stanton who said tearfully at his deathbed, “Now he belongs to the ages.”

In State v. Armstrong, Lincoln’s most notable criminal trial, he defended William “Duff ” Armstrong pro bono for the murder of James Metzker. Armstrong and Lincoln were old friends, Armstrong’s family having been particularly kind and welcoming to Lincoln as a young man. The prosecution’s star witness, Charles Allen, accused Armstrong of killing Metzker with a slungshot. Allen testified that he saw Metzker’s 11:00 p.m. homicide from a distance of approximately 150 feet while standing in a beech tree thicket. On cross-examination, Allen admitted that he was holding neither a candle, nor a lantern, but was never-

www.daybar.org

theless able to identify Armstrong as Metzker’s assailant because of the brightness of a full moon. It was then that Lincoln impeached Allen with a Farmers’ Almanac chronicling a dim quarter moon the night Metzker was killed.

To be sure, Lincoln saved Armstrong from the hangman with his skillful crossexamination and with an impassioned, but probably improper, final argument that included Lincoln’s memories of the Armstrong family’s kindnesses to him as a young man.

For legal historians, the case is noteworthy for Lincoln’s use of judicial notice, an uncommon trial tactic in courtrooms of mid-19th century Illinois, to admit the almanac as impeachment evidence. Thanks to Lincoln, Armstrong lived another 44 years after his acquittal. A plaque at his gravesite in Mason County, Illinois, reads “WILLIAM DUFF ARMSTRONG accused slayer of Preston Metzker, May 7, 1858 freed

by Lincoln in Almanac Trial.”

In Bailey v. Cromwell, 4 Ill. 70 (1841), Bailey was alleged to have defaulted on a promissory note as consideration for the purchase a slave woman, Nance, from Cromwell.

Cromwell represented and warranted in the purchase contract that Nance was his property, a slave, lawfully bound to him by Illinois law.

The contract also stated that before payment would be demanded on the note, Cromwell would produce the necessary papers of indenture proving that Nance was a slave.

Cromwell died, and the administrators of his estate failed to produce the ownership papers. In the meantime, Nance left Bailey’s service, and never returned, asserting and declaring that she was free. The circuit court held that the note was enforceable and awarded Cromwell’s administrators $431.97 in damages.

On appeal to the Supreme Court, Lincoln argued successfully that the presumption in Illinois was that every person was free without regard to color. Cromwell’s administrators, having failed to rebut the presumption with ownership papers, could not enforce the note or rescind the contract. Nance was free.

Six years later, Lincoln represented an alleged slave owner in Matson v. Rutherford.

Matson was a Kentucky native who purchased land in Illinois. He attempted to avoid Illinois law banning slavery by bringing slaves to his Illinois property for a year or less before returning them to Kentucky and replacing them with other slaves. After two years in Illinois, Jane Bryant, a slave, and her four children, escaped and sought refuge with Rutherford, an abolitionist. Matson had the Bryants arrested as runaways and incarcerated in the local jail.

Rutherford filed a writ of habeas corpus to obtain the release of Bryant and her children.

Lincoln represented Matson opposing the writ owing to his belief that a lawyer is obliged to represent clients in unpopular causes. After a one-day trial, the judge approved the writ and declared Bryant and her children free concluding that Matson had brought them into the free state of Illinois and domiciled them there.

For Lincoln, an abolitionist, it was a defeat that likely caused him little dismay.

Judge Langer concluded his remarks with excerpts from Lincoln’s Notes for a Law Lecture, a document Lincoln private secretary John Hay discovered after Lincoln’s assassination.

Though the Notes are dated July 1, 1850, it is unknown whether Lincoln ever delivered this lecture. Among those notes is the admonition earning Lincoln his sobriquet, “Honest Abe,” which Judge Langer offers as most worthy of repetition: There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

Judge Langer’s lecture, complete with vintage photos, was received warmly by an appreciative and collegial audience.

March 2017 Dayton Bar Briefs

29

DBA MEMBERSHIP

Welcome New Members!

The Dayton Bar Association welcomes the following new members

Attorney CREWS, Virginia L.

Attorney - CONT. WAGNER, Nathaniel B.

Law Offices of Shawn B. Hamp Admitted to Ohio Bar: 11/04, AZ 2009

WilmerHale Admitted to Ohio Bar: 11/12

DARNELL, Kevin M.

YOUNG, Maureen C.

Rion Rion & Rion Admitted to Ohio Bar: 11/16

Admitted to Ohio Bar: 11/16

FARMER, Christine N. Young & Alexander, CO. LPA Admitted to Ohio Bar: 11/15

GRIFFITH, Vater A. Oglesby & Oglesby Admitted to Bar: MO 11/01, NJ 07/07

Law Student AYUBI, Antonio J. BARNES, Andrew R. BUCH, Robert T. FRAKLIN, Zenus A. HERBERT, Rachel N. JALANBO, Dana LOPEZ, Amber C.

march '17 committee meetings *CANCELED in lieu of 3/10 CLEEstate Planning Trust & Probate March 1 @ Noon Small Firm/Solo Office March 6 @ Noon Juvenile Law March 6 @ 4pm Diversity Issues March 7 @ Noon Appellate Court Practice March 8 @ Noon Environmental Law March 8 @ Noon Domestic Relations March 9 @ Noon Real Property March 9 @ Noon Federal Practice March 13 @ Noon Civil Trial Practice & ADR March14 @ Noon Labor & Employment Law March14 @ Noon Criminal Law & Its Enforcement March15 @ Noon Workers’ Comp /Social Security *w/optional CLE see pg 16 March16 @ Noon Corporate Counsel (In-House Counsel) March 23 @ 4:30pm @ Bravos 30

Dayton Bar Briefs March 2017

Contact Chris with any DBA Membership related questions: calbrektson@daybar.org 937.222.7902

Law Student - CONT. MEEKS, Kaitlyn C. MUNCLE, Troy NORFOLK, Dustin M. ROLEY, Amy S. ROSADO, Krystal R. RUFFOLO, Kara T. SANTANA, lizabeth R. SULLIVAN, Nicholas J. TOMB, Sabra ZAMBELLI, Dominic J. ZAMORA, Michael A. Paralegal OLON, Pauline M. DP&L

Join the DBA Join the Conversation Get Involved with a Committee!

Share & Learn!

Share & Learn!

Contact Carol for Committee details: cblevins@daybar.org 937.222.7902

Now that you are a member, we encourage you to access the many resources available to you and get involved with YOUR Association. *Join a Committee *Attend the Chancery Club Luncheon *Use Fastcase Legal Research FREE to Members! *Attend DBA CLE Programs SAVE Money with Your Member Discount! *Short on Time - Go Online Member Discounts on Online CLE Programs ...AND SO MUCH MORE

937.222.7902

DIVERSITY ISSUES: Repairing the Pipeline continued from page 14 and sponsorship opportunities for minority attorneys.9 Non-minority mentors reported challenges in "[advocating] on behalf of [minorities]" for career advancement opportunities and hesitation in selecting them as protégés.10 Further, research indicates "people are more comfortable talking to, risking for, and mentoring someone who is like them. [Due to minorities being drastically underrepresented in the legal profession], they often have a difficult time finding someone who is willing to mentor them."11 Generally, some minority attorneys are thus left with either no mentor or sponsor, or one that is unwilling to sincerely develop them professionally.12 While mentoring and sponsorships are popular within the profession, affinity groups are arguably the most common with minority attorneys.

Affinity groups strengthen networking opportunities and can lead to the discovery of "role models" for minority attorneys, but generally have "no significant impact on [professional development and advancement]."13 It should be noted a correlation likely exists between leadership "being excluded from participating in these groups" and career development opportunities.14 The effectiveness of affinity groups would likely increase if all leadership, regardless of race or ethnicity, were invited "to participate in at least some of the affinity groups discussions so they are privy to the issues" and concerns of the group.15 The concerns of one affect the advancement of all.

Civil rights leader Reverend Dr. Martin Luther King, Jr. proclaimed, "we are caught in an inescapable network of mutuality tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. I can never be what I ought to be until you are what you ought to be. This is the inter-

www.daybar.org

related structure of reality."16 A lack of diversity and inclusion impacts all people everywhere. As such, it is critical the legal profession make a collaborative effort to recruit and retain minorities. Based on the Census Bureau projections, evolution of the legal profession is arguably more of a necessity now than ever. According to the Census Bureau, when the 2020 Census is conducted, "more than half of the nation’s children are expected to be part of a minority race or ethnic group."17 Further, the Census Bureau reported "by 2044, more than half of all Americans are projected to belong to a minority group."18 Thus, if the legal profession does not progress at a rate comparable with the multicultural trend of the national population, the public will not be effectively served.

Diversity and inclusion within the legal profession should be a focal point for everyone, particularly those within the legal profession. Diversity and inclusion within the profession "matters because it leads to the creation of [effective problem solvers]. Without diversity creativity can be stunted. Without diversity it becomes a struggle to brainstorm new and innovative ideas and problem solve because everyone has the same mind set, the same worldview. With the same or similar mindsets people are less capable of bringing [differing] perspectives, experiences, knowledge or histories to the table.”19 As we are all interconnected, a lack of diversity and inclusion affects not only the legal profession, but individuals from all communities.

Please join us for Diversity Day on April 7, 2017 at Sinclair Community College to discuss diversity related issues and possible solutions.

ENDNOTES: 9

Sharla, Toller. The Call to Action Ten Years Later: A Look at

the Effects on Retention of Women and Racial Minorities at Law Firms. (pp. 66-77). Clark, C.J., & Reasoner, A. (Eds.),

IILP Review 2014: The State of Diversity and Inclusion in the

Id. At 73.

10

Id.

11

Id.

12

Id.

13

Id.

14

Id.

15

Dr. Martin Luther King, Jr., Commencement Address for Oberlin

16

College ( June 1965) (transcript available in the Oberlin College Archives).

Press Release, U.S. Census Bureau, New Census Bureau Report

17

Analyzes U.S. Population Projections, (March 3, 2015), http://www. census.gov/newsroom/press-releases/2015/cb15-tps16.html.

Id.

18

Illinois State Bar Association, Why diversity matters, (2008), https://

19

www.isba.org/committees/minorities/newsletter/2008/06/ whydiversitymatters.

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

Legal Profession (2014). Chicago, IL: IILP.

March 2017 Dayton Bar Briefs

31

law-related organizations Dayton Bar Association Foundation

DBA Members Generously Giving on Behalf of the Legal Community

O O

n behalf of the Greater Dayton Legal Community, the Dayton Bar Association Foundation accepts funding from DBA Members, Foundation Fellows, Friends of the Foundation and directed contributions to established special purpose funds. The Foundation funds are then granted, on behalf of the DBA Members to a wide variety of programs and charitable activities aligned with the Foundation’s mission and purpose.

Through member contributions, the DBA Foundation makes a much-needed impact on a variety of local law-related projects and organizations, as well as, as well as, improves the public perception of legal professionals.

DBA Members give back to the community, in which they live and work, through contributions to Your Foundation. Contributions may be directed to any of the following:

To obtain more information about the Dayton Bar Association Foundation

Write, Call or Email: William B. Wheeler, Executive Director Dayton Bar Association Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: bwheeler@daybar.org

• Memorial Funds:

*Robert N. Farquhar Memorial Fund

*Lloyd O’Hara Scholarship Fund • DBA Foundation General Fund:

To assist in funding grants to worthy projects ad organization • Memorial Contributions:

Donations are a meaningful way to express sympathy or honor an individual • Include the Foundation in Your Estate Planning:

Make a bequest, establish a Charitable Remainder Trust or name the Foundation as

beneficiary of a life insurance policy.

Greater Dayton Volunteer Lawyers Project Countless Men, Women and Children are Denied Justice Every Day Simply Because They are Poor Please tell us what you are willing to accept as pro bono work. Personal Representation of an Indigent Client: Divorce/Family Law Bankruptcy Consumer Issues Contract/Warranty disputes SS, SSI, SSD Tort Defenses Predatory Lending Stalking Protection Orders Civil Protection Orders Wage Claims Employment Disputes Guardianships Probate Homeownership Disputes Landlord/Tenant Disputes Health Care (Insurance Claims, Nursing Home Issues Other Or, you can choose from the options below: Acceptance of 1-2 Clinics (Batched Cases) per year - GDVLP provides paralegal, secretarial and runner services for these cases.

Please specify Divorce, Chapter 7 Bankruptcy, or Expungement Assistance to 1-2 Non Profit Corporations in the Western Ohio Region Acceptance of 3-5 Guardianships with guardians provided through The Guardianship Program (person only) In addition: I will be available to provide pro bono civil legal assistance to victims if there is a community emergency (tornado, natural disaster)

Please return this form to VLP:

By Mail: 610 Performance Place, 109 N. Main St., Dayton OH 45402

By Fax: to (937) 461-4731

By Phone: (937) 461-3857

By E-mail: kelly@gdvlp.org Name:________________________________________________ Firm:_________________________________________________ Address:______________________________________________ Preferred County for Pro Bono Service:_____________________ Phone:_______________________ Fax:____________________ Email:________________________________________________ Attorney Registration #:__________________________________

As of January 1, 2014 every 6 hours of pro bono service through an approved pro bono provider will give you 1 hour of CLE credit to a maximum of 6 hours of CLE credit (36 hours of pro bono). The Greater Dayton Volunteer Lawyers Project will send your hours to the Ohio Supreme Court and notify you of the same.

32

Dayton Bar Briefs March 2017

937.222.7902

Thurgood Marshall Law Society How to Contact TMLS: President Robert Gresham 937-222-7477 rgresham@ yourohiolegalhelp.com

Vice-President Gerald Parker 937-496-3210 gparker@mcohio.org

Secretary Natasha Newberry 937-225-4253 newberryn@mcohio.org

Treasurer Ciara Parks 937-225-5768 parksc@mcohio.org

Send any email questions or concerns regarding TMLS to: thurgoodmarshalllawsocietydayton@yahoo.com

JOIN US Groups: Thurgood Marshall Law SocietyDayton

FOLLOW US @TMLSDayton

LIKE US Thurgood Marshall Law SocietyDayton

University of Dayton School of Law

March 2017 Dayton Bar Briefs

33

members on the move If you are a member of the Dayton Bar Association and you’ve moved, been promoted, hired an associate, taken on a partner, received a promotion or award, or have other news to share, we’d like to hear from you. News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted via email and are subject to editing. We also request a current, high-resolution, directory-style photo to accompany your announcement. These monthly accouncements are printed as space is available. Submit your Members on the Move announcements, for consideration, by the 5th day of the month prior to publication (i.e. March 5th for inclusion in the April 2017 Dayton Bar Briefs).

Please send to DBA Publications Manager, Shayla M. Eggleton: publications@daybar.org. Please submit address changes to Carol Blevins: cblevins@daybar.org.

2017 Ohio Super Lawyer Designations Each year, no more than five percent of attorneys in the state of Ohio are chosen to be listed as an Ohio Super Lawyer. The annual selections are made after an extensive evaluation process which includes a survey of lawyers and individual interviews along with a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Thomas M. Green, Green and Green, Lawyers Jane M. Lynch, Green and Green, Lawyers Erin B. Moore, Green and Green, Lawyers Donald G. Schweller, Pickrel Schaeffer & Ebeling Rising Star: Shahrzad P. Allen, Pickrel Schaeffer & Ebeling Rising Star: Jared Wagner, Green and Green, Lawyers Plaintiff's Personal Injury: William P. Allen, Casper & Casper,LLC Civil Litigation: Nick Subashi, Subashi & Wildermuth

America’s Top 100 Attorneys for Ohio

GREEN

LYNCH

MOORE

SCHWELLER

ALLEN

WAGNER

ALLEN

SUBASHI

This honor is based on an attorney’s exceptional advocacy, success, ethical standards, and legal accomplishments, and it is limited to only 100 attorneys in Ohio.

A listing of the other Ohio attorneys who have received this recognition can be found at www.AmericasTop100Attorneys.com.

Nick Subashi - Subashi & Wildermuth The Best Lawyers in America© 2017 Best Lawyers is the oldest and most respected peer-reviewed publication in the legal profession.

Commercial Litigation: Thomas M. Green, Green and Green, Lawyers Civil Rights: Jane M. Lynch, Green and Green, Lawyers

Pickrel Schaeffer & Ebeling, Co., LPA is pleased to announce that SHAHRZAD P. ALLEN (photo'd above) has been selected as 2017 Ohio Super Lawyer, Rising Star.

Shahrzad leads the team at PS&E with matters involving immigration law, including citizenship, family based immigration, employment and investment based immigration, non-immigrant visas and asylum cases.

Being a naturalized citizen herself, Shahrzad knows first -hand how much a well-qualified immigration attorney can improve the life of foreign nationals.

Jamison Law, a Dayton based law firm, is pleased to announce that MANDY A. JAMISON was recently accepted into the Miami Valley Trial Lawyers Association.

JAMISON The MVTLA is dedicated to the advancement of fair trials and free access of individuals to the courts of this state. Jamison Law is a consumer protection firm dedicated to providing legal counsel to consumers throughout Ohio, in both state and federal court. JL’s practice areas include inaccurate credit reporting, identity theft, 34

Dayton Bar Briefs March 2017

unfair debt collections, predatory lending, lemon law, wrongful repossession, fraudulent vehicle sales, faulty construction and repairs, wrongful denial of insurance benefits, personal injury, and general civil litigation.

Green & Green, Lawyers is pleased to announce that SEAN P. MCCORMICK has become a shareholder in the firm. Since joining the firm, Sean has defended both individuals and businesses in MCCORMICK bodily injury, construction and civil rights litigation and has also handled business and employment litigation. He recently expanded to include Estate Administration and Probate matters.

Pickrel Schaeffer & Ebeling, Co., LPA is pleased to announce DONALD G. SCHWELLER (photo'd above) has been selected as 2017 Ohio Super Lawyer. Donald G. Schweller, has been with the firm for 59 years.

He is a Fellow of the American College of Trust and Estate Counsel, and member of the Probate Department practicing in the areas of estate planning, trust and probate.

Recently, NICHOLAS SUBASHI (photo'd above) was selected as one of America’s Top 100 Attorneys for Ohio and for the tenth year in a row. Mr. Subashi has also been selected by his peers WILDERMUTH as an Ohio Super Lawyer in the area of Civil Litigation – Defense. Again this year, Nick has been honored as one of America’s Best Lawyers in the fields of Education Law and Commercial Litigation. Lastly, at the annual meeting of the Ohio Chapter of the American Board of Trial Advocates (“ABOTA”), Nick Subashi, was elected Secretary of the organization, and BRIAN WILDERMUTH was inducted as a Member. ABOTA, a by-invitation-only group of Ohio’s best plaintiffs’ and defense attorneys, is dedicated to protecting and preserving the Seventh Amendment right to trial by jury.

DBA Publications included an incorrect photo in last months announcement of WILLIAM P. ALLEN as an Ohio Super Lawyer.

Please see corrected photo above.

937.222.7902

classifieds For information concerning Classified Ad and Display Ad Space in the Dayton Bar Briefs or any other DBA Publication, contact DBA Publications Manager, Shayla M. Eggleton: publications@daybar.org or 937.222.7902. Discount Rates available for consecutive and/or combined Online + Display + Classified advertising!

EXPERIENCED COMMERCIAL REAL ESTATE ATTORNEY Graydon Head & Ritchey, LLP, 80+ attorney firm located in downtown Cincinnati, seeks a highly motivated, experienced commercial real estate attorney for our busy commercial real estate practice group. The candidate’s experience must be in commercial real estate transactions.

Candidates should be licensed in Ohio, or willing to obtain admission to the Ohio Bar. Candidates should have high intellectual capacity, excellent analytical and writing skills, and works with a sense of urgency.

The successful candidate is dedicated to pursuing commercial real estate practice as a career, and exhibits a "client service" approach to the practice of law. We offer competitive compensation and an attractive benefits package. Please reply in confidence with your cover letter, resume and law school transcript to: Barbara Hopewell Chief Professional Development Officer and Director of Human Resources 312 Walnut Street, Suite 1800 Cincinnati, OH 45202 (Phone) 513.629.2858 (Fax) 513.651.3836 E-Mail: bhopewell@graydon.com EXPERIENCED DIVORCE LAWYER SOUGHT Holzfaster, Cecil, McKnight & Mues has an opening for a lawyer with preferably 3+ years experience in Domestic Relations work. Some present book of business is a plus. Please send resume to Chip Mues at lawdayton@gmail.com.

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

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

www.daybar.org

Find Out What Fastcase is All About!

OFFICE AVAILABLE Downtown Dayton office with great view available. Reasonable overhead.

If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 2241427.

OFFICE SPACE 101 Southmoor Circle, NW (Stroop and Far Hills). Two offices available at $550/month/office. Furnished or unfurnished. Take one or both offices.

Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area, conference room, Dayton Racquet Club athletic membership. Email dave@ SchmidtDayton.com for info and pics.

Your ad could be here!

contact Shayla: publications@daybar.org

Fastcase research and free online webinars:

www.daybar.org

advertiser index ComDoc Inc..............................................26 Eikenbary Trust .... ...............................21 Ferneding Insurance...............................29 J. Steve Justice - Mediations.............. 21 LCNB Bank.................................................8 National Processing Solutions.............5 OBLIC..........................................back cover Park-N-Go.............................................. 25 R.L. Emmons & Associates.....................31 Rogers McNay Insurance.......................7 Trisha M. Duff - Mediations...................31 Thomas P. Whelley II............................ 10

mark your calendar Chancery Club Luncheon The Old Courthouse March 17, April 20 (Thurs.), May 12 2017 Probate Law Institute Sinclair College, Bldg. 12 Fri. March 10, 2017 Annual Diversity Day Luncheon Sinclair College, Bldg. 12 Fri. April 7, 2017 Annual Domestic Relations Seminar Sinclair College, Bldg. 12 Fri. April 21, 2017 Celebration of Life Memorial Luncheon Sinclair College, Bldg. 12 Wed. May 9, 2017 DBA Annual Meeting Fri. June 9, 2017 DBA Dragons Game Thurs. July 20, 2017 March 2017 Dayton Bar Briefs

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Dayton Bar Association 600 Performance Place 109 N. Main St. Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED

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