May 2019 Dayton Bar Briefs Magazine r by Dayton Bar Association

The Magazine of the Dayton Bar Association | MAY 2019 | Vol. 68, No. 9

Dayton

Bar Briefs

Gear Up!

Renew Your 2019-20 Dues

Barrister of the Month J. Michael Herr pg 6

Law & Tech

The Ohio Data Protection Act pg 20

DBA Rising Star Mitchell J. Anderson pg 22

CONTENTS

Dayton

Bar Briefs

May 2019 | Vol. 68, No. 9

Dayton Bar Association Board of Trustees 2018 – 2019

David P. Pierce

Features 4 TRUSTEE'S MESSAGE We’re Not So Different After All: Multiple Generations in the Workplace By Denise Platfoot Lacey

President

Hon. Mary L. Wiseman First Vice President

BARRISTER OF THE MONTH: J. MICHAEL HERR

By Kristina E. Curry

12 ESTATE PLANNING TRUST & PROBATE Zoom Lens: Focus on the Annual Probate Law Institute

Fredric L. Young

Second Vice President

By David D. Brannon & Edward M. Smith

Cara W. Powers Secretary

18 JUDICIAL CANDIDACY EVALUATION POLL Should It Stay or Go? By The Honorable Mary L. Wiseman

Brandon C. McClain Treasurer

Cassandra L. Andres Rice

20 LAW & TECH

Member–at–Large

Caroline H. Gentry

Member–at–Large

Denise L. Platfoot Lacey

By Zachary S. Heck

Adam R. Webber

22 DBA RISING STAR: MITCHELL J. ANDERSON By Thomas J. Intili

Brian L. Wildermuth

24 FROM THE JUDGES DESK

Member–at–Large Member–at–Large

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

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

The Ohio Data Protection Act – Incentivizing Businesses with a Sword to Fight Breaches and a Shield to Defend in Litigation

Dayton Bar Briefs May 2019

Down the Rabbit Hole: An Introduction to New Sentencing Laws

By The Honorable Barbara P. Gorman

Departments 17 CONTINUING LEGAL EDUCATION 25 MAY COMMITTEE MEETINGS 29 CLASSIFIEDS Upcoming Events 7 MAY CHANCERY CLUB LUNCHEON + LIBERTY BELL AWARDS Fri. May 10th | 11:30am | The Old Courthouse 9

2019 CELEBRATION OF LIFE MEMORIAL LUNCHEON Wed. May 15th | 11:30am | Sinclair Community College

937.222.7902

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

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

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

FARUKI+

www.ficlaw.com With offices in Cincinnati & Dayton

FARUKI+ is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.

Gold Partner Thompson Hine LLP www.thompsonhine.com

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

If you are interested in becoming a DBA Annual Parter, contact: Jennifer Otchy DBA Executive Director jotchy@daybar.org 937.222.7902 www.daybar.org

May 2019 Dayton Bar Briefs

Trustee's Message

We’re Not So Different After All: Multiple Generations in the Workplace

W W

orking with law students, I have the opportunity to observe the workplace habits, values, and expectations of multiple generations. They run the gamut from extremely dedicated and hard-working to … not so much. Although some students’ habits and expectations are different than mine, they are not completely at odds. In fact, often they are quite similar. Currently, four generations of lawyers make up the workplace. In five to ten years, another generation will join our offices. Such diversity means workplace habits and attitudes differ dramatically. This is logical because each generation has different life experiences that have impacted their values, attitudes, and expectations within the workplace. Typical qualities of each generation are ones that most of us likely recognize in some colleagues (or ourselves), even if they are just generalities and do not describe any individual person. Traditionalists, born between 1900-1945, are sometimes referred to as the silent generation because they generally keep their thoughts to themselves. Their values are shaped by the Great Depression, World War II, and postwar boom years. Their workplace characteristics tend to be strict adherence to rules and directives, and they have strong respect for authority. They are considered among the most loyal workers. They are highly dedicated and the most risk averse of all these generations. They believe that duty and responsibility take precedence over personal leisure pursuits, and they generally believe that workplace promotions are based upon time served and seniority. They tend to prefer formal communication and directives from higher ups in the workplace. Baby Boomers are born between 1946-1964. They are the first generation to actively declare a higher priority for work over personal life. They are often considered workaholics, particularly by younger generations who value work-life balance. They value hard work and long hours on the job. Their values are primarily shaped by a rise in civil rights activism, Viet Nam, and inflation. They place value on education and a high-quality work product. They prefer face-to-face communication and often rely on meetings to accomplish goals. Generation Xers are born between 1965-1979 and are often

Dayton Bar Briefs May 2019

By Denise Platfoot Lacey Professor of Externships, University of Dayton School of Law DBA Member-at-Large

considered the “slacker” generation. They were born in a time of job instability and a post-downsizing environment. As such, they tend to be very adaptable and flexible. They naturally question authority figures and are responsible for creating the work/life balance concept. They are more adept at technology than their predecessors and rely heavily on email for communication. They don’t believe face-to-face communication is necessary, and they don’t want to spend their time in endless meetings. They are more likely than earlier generations to express an opinion without being asked. They believe that they deserve as much respect as more senior people in the workplace. Millennials, or Generation Y, are born between 1980-2000. They are the first global-centric generation, having grown up in the age of the technology boom of the 90’s, and they expect information to be available immediately. Because of an increase in educational programming during their youth, they are the most educated generation of workers today. They are also the most diverse generation in the workplace, and they appreciate diversity and inclusion. They want to be treated like equals the workplace, and they don’t want to be talked down to. They also have high expectations for opportunities for growth and promotions. They are not known for patience, so they tend to want these opportunities quickly. Since they grew up partici-

continued on page 5

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TRUSTEES MESSAGE: We’re Not So Different After All: Multiple Generations in the Workplace continued from page 4 pating in team activities, such as sports, they are very team-centric in the workplace and like to collaborate. However, they also like clear instructions and one-on-one feedback. They are focused on work/ life balance and see work as a means to an end to achieve the lifestyle that they want. On its face, it seems these four generations have incongruent values, but upon a closer look, you will see common threads in each generation. Each generation values respect. From the Traditionalist to the Millennial, respect is important. Older generations believe people in authority deserve respect, while younger generations believe their ideas and opinions should be respected. Therefore, treating everyone in the workplace with respect is a value that every generation can appreciate. Trust is important to every generation. Older generations are loyal to their organizations and trust the people in authority. Younger generations want to be trusted to contribute to their organizations in a meaningful way. If we can step out on a limb to trust each other (and be trustworthy) in the workplace, all generations will be getting what they seek.

Mentoring means something to every generation. People in every generation like to receive feedback and learn what they can do to perform better. Since older generations like feedback as much as younger generations, younger generations can use their desire to share their opinion to provide feedback to older generations. Older generations can in turn share their experience and opinions with younger generations to satisfy the younger generation’s need to have one-on-one feedback. All generations want to feel valued. No one likes to feel underappreciated. Treating each other fairly, recognizing each other for individual contributions, and compensating everyone fairly will appeal to all generations. If we treat each other in the workplace with these simple concepts in mind, we will be able to unite our mutual workplace values to build a cohesive and productive team. Instead of seeing differences in the work habits of our colleagues – or in my case, those of my students – we must remind ourselves that we’re not so different after all. *Information in this article was compiled from the following resources: • Center for Creative Leadership, 10 Principles for Working Across Generations, https://www.ccl.org/multimedia/podcast/10-principles-for-working-across-generations/ (last visited April 4, 2019). • Karen Appold, Effective Communication Among Different Generations, (Feb. 10, 2017), https://www.the-rheumatologist.org/article/effective-communication-amongdifferent-generations/ • Tia Benjamin, Generational Characteristics of the Workplace, https://smallbusiness. chron.com/generational-characteristics-workplace-14524.html (last visited April 4, 2019). • American Management Association, Leading the Four Generations at Work, https:// www.amanet.org/training/articles/leading-the-four-generations-at-work.aspx (last visited April 4, 2019).

2019-2020

DBA Dues Renewal

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Deadline July 1

Check with your firm administrators and keep watch of your email inbox for your 2019-20 DBA Dues Renewal Statement. Give us a call today if we do not have an email address on file for you. Don't have an email address? We will be mailing your statement to you.

renew/join the dba Visit www.daybar.org to join or renew through our online application

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Chris Albrektson DBA Member Services 937.222.7902 calbrektson@daybar.org

Mail Application: Dayton Bar Association 109 N. Main St. Suite 600 Dayton, OH 45402

May 2019 Dayton Bar Briefs

Barrister of the Month

J.Michael Herr

JJ.

Michael Herr of Thompson Hine, LLC is the Dayton Bar Briefs Barrister of the Month for May 2019. Friends know him as “Mike.” He and his wife Nancy have three daughters and eight grandchildren, seven of whom are boys ranging in ages from 16-24 years old. Mike has been practicing as a Business and Corporate attorney for more than 50 years. His practice includes mergers, acquisitions and divestitures; securities law matters; debt and equity financings, including venture capital investment; and joint ventures. He also has worked with clients on executive compensation planning and programs, manufacturer-dealer relations, licensing and franchising, and general business matters. He has extensive international experience in mergers and acquisitions and licensing. He received his law degree from The Ohio State University, summa cum laude, and his B.A. from the University of Notre Dame. When Mike passed the bar and began his legal practice in 1968, a tumultuous year in many respects, he was already married, had 2 children, and was focused on starting a career. He has continued that steady commitment and focus to the practice of law, and to family, throughout his career and to this day. Mike greatly admired his father, who was also an attorney in Middletown, Ohio. His father’s practice bore no resemblance to his own and was that of a “general practitioner” back when lawyers were less specialized. Mike admitted that he didn’t really know the day-to-day details of his father’s law practice, growing up. Even so, Mike decided to become a lawyer because his father was one, and he considered that if being a lawyer was something that his father wanted to do, that it was what he also should want to do. A self-admitted “deal junkie,” Mike counts himself very fortunate that almost all of his work has given him the opportunity to work directly with client principals and decisionmakers. This has given him the ability to maintain long term relationships with his clients as opposed to other areas of practice or having “one-time engagements, where you may not have any ongoing relationship with a client or ongoing business to accomplish for the client, necessarily.” Mike is also very thankful to have made “friends of clients, and clients of friends.” Over the years, he has had the opportunity to work with “all sorts of personalities, in all sorts of different situations, with the main objective to help those clients achieve their objectives and to be protective of clients’ interests along the way.” Mike has learned both how to deal with the “table pounders” on the other side and also how to advise his clients. “You need to have the confidence of the client, the skills, the experience, and that certainly helps and you also need to be able to give the client your best advice, even when it isn’t what the client wants to

Dayton Bar Briefs May 2019

hear. That requires a degree of diplomacy and persuasiveness and the ability to back your advice with more than just an opinion.” However, speaking in terms of his long career and what he is currently doing, what Mike has always enjoyed about the practice of law includes completing difficult drafting projects. “Those are basic lawyer things—and I still enjoy them!” Mike also enjoys having “the greatest satisfaction from feeling one has truly partnered with your client to assist the client in achieving that client’s objectives.” Mike explained that in contrast to some other areas of practice, “In transactional work, if a deal isn’t satisfactory to all of the parties, there isn’t a deal.” Mike recalls that one of the easiest, least stressful transactions that he ever handled happened to be one of the largest. This was a transaction involving a sale to one of Warren Buffett’s companies. Mike described Buffett as a person who consistently saw the “big picture,” in life. Although he did not get a chance to meet Buffett in person at that time, his influence and “big picture” attitude “was reflected in the way the entire transaction was handled.” Most of Mike’s clients over the years have been in manufacturing. At his firm, he praises the ability to draw upon support from other specialties such as tax, property and employment lawyers. “You don’t have to be all things to all people,” he says. Mike acknowledged that over the years he has had the support of his wife, his daughters and grandchildren and many “terrific partners.” Mike advises lawyers who are newer to the profession that it “takes commitment, and it takes having good people around you.” Mike is a long-time golfer, and he and his wife have recently begun to play a racquet sport called pickleball. Pickleball has become very popular in Florida, where Mike and his wife spend a portion of the winter months. Thanks to Mike for his many years of service to the bar and a warm congratulations as the Dayton Bar Briefs Barrister of the Month for May 2019.

By Kristina E. Curry Co-Chair DBA Editorial Board Pickrel Schaeffer & Ebeling Co. LPA

937.222.7902

Find out the recipient of the 2019 Liberty Bell Award during the last Chancery Club Luncheon of the 2018-19 Season! May Chancery Club Luncheon: Friday, May 10th The Old Courthouse Dayton Doors open 11:30am Caterer: Francos Italian Restorante Seating is limited! RSVP to Tyler: twright@daybar.org or Call 937.222.7902

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May 2019 Dayton Bar Briefs

Dayton Bar Association Leadership Development Program

Explore.

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

Expand.

Grow your network within the legal community and become a catalyst for positive leadership.

Experience.

Now is the time to lead! Get prepared for your next big step, personal or professional, with cutting-edge leadership development and training.

DBA Leadership Development Program Application Deadline is May 10, 2019 Ready for Take Off!

The Dayton Bar Association Leadership Development Program is accepting application NOW for the Class of 2019-2020. By participating in the Program you will Expand your networking within the legal community, Explore leadership opportunities, and Experience the benefits of DBA Membership, all crucial elements in your future professional and personal success!

Program Details

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

Previous Leadership Development Program Grads are Current Leaders!

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

the Bar. The speakers and class topics provided me with insight and skills I needed to create a foundation for being a lawyer-leader in my community. - Cassandra Andres Rice Esq.

You're next ! Apply Today daybar.org th Deadline May 10

Gottschlich & Portune LLP DBA LD Class of 2013-14’

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

through thoughtful discussions with local judges, thought leaders, and business professionals. People look to lawyers for wisdom and insight. The DBA Leadership Development Class offered me the tools and relationships to refine those qualities while making a difference in both my practice and our community. - Zachary S. Heck Esq.

Taft Stettinius & Hollister LLP DBA LD Class of 2017-18’

apply or nominate: www.daybar.org/page/LeadershipDevelopment 8

Dayton Bar Briefs May 2019

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Celebration of Life

Memorial Luncheon Wednesday, May 15th 11:30am Sinclair Community College

Remembering the lives of our fellow members of the legal community who passed away since May 2018. DBA Members

Non Members

C. Mark Kingseed Esq. The Honorable Nick Kuntz Jr. Elizabeth R. Gorman Esq. Michael H. Holz Esq.

Barry S. Galen Esq. Therese â&#x20AC;&#x153;Teriâ&#x20AC;? Geiger Michael D. Matlock Esq. Raymond J. Dundes Esq. Hans Soltau Esq.

Call to Reserve Your Table of (8) $280.00 - Please give a list of those to be seated at your table. Registration for (1) $35.00 Visit daybar.org/event/dbamemorialluncheon or Call 937.222.7902

Tyler Wright twright@daybar.org

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Renew Your DBA Membership! M M

ay is the kick-off for Dues Renewal season at the DBA. We hope you are considering renewing your membership. This year, we will be sending reminders to the legal administrators of your office, as well as your email inbox and mailboxes if we do not have an email address on file for you, (give us a call 937.222.7902 so we can add and email address to your records for future reference). Also, we hope that you are following us and remain on the lookout for up-to-date information via the DBA’s social media sites: Facebook @DaytonBarAssociation and Twitter @Dayton_Bar. DBA Board of Trustees and Staff have worked diligently to make sure your membership brings value to you and your practice.

Committee Leadership

The DBA has over 25 committees, interest groups and divisions all dedicated to promoting excellence, networking and collegiality in the profession. Be it through participation in the Young Lawyers Division, Domestic Relations or Civil Trial Practice committees – just to name a few, we encourage you to get involved and join the conversation. View full list of DBA committees and sign up online, just in time for the 2019-20 DBA Committee Season that kicks off in September. Join today and become a organizer or speaker of next year’s meetings and events.

Special Events, Networking

The DBA hosts over 50 events throughout the year, all geared towards engaging you, our members to become active in local community volunteer projects, become a mentor, find a mentor, share your knowledge and expertise, attend DBA CLE seminars, present a DBA CLE seminar, attend free luncheons – the list goes on. In the upcoming Bar year, we intend to kick things up a notch in efforts to really make DBA events, ones you can’t miss!

So Renew Today!

Don’t miss out on so many wonderful opportunities to enhance your legal career. As a member, we look forward to hearing your ideas on areas of improvement, that we may better serve you in the future. Stop by and join us at the premier DBA event of the Year, 2019 DBA Annual Meeting to be held on Friday, May 31st at Sinclair Community College. The DBA future is bright under the new leadership of Executive Director Jennifer Otchy, and we are excited to continue the celebration of the DBA’s legacy and embrace our future.

Take Advantage of These DBA Membership Deals!

Enrich Your Career and Get Connected. CLE Passports + Discounts Unlimited $525 / 12-Hr $295

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Delivered straight to your email inbox and doorstep. The official publication and the go-to resource guides of the DBA. Online versions available to access 24/7.

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Over 30 committees to choose. Serve the legal profession & community, hone your skills in specific practice areas and enjoy social activities & networking opportunities.

Dayton Bar Briefs May 2019

Unlimited Legal Research Access through Fastcase. Smart legal research tools, unlimited printing and reference support. Webinars and How-To Tutorials + apps for Apple and Android products.

LRS Panel: Members $175 / NonMembers $375 Let us help build your client base. Join the NEW Panel today and get connected when clients come looking.

Chancery Club Luncheons FREE!

Members only luncheon held on monthly basis at the Old Courthouse with speakers, topics and delicious catering.

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DBA Member Rate Discounts Networking & Collegiality + More!

DBA Volunteer Day

Chancery Club Lunche

DBA Committee Meetin

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& Luncheons

New Lawyer Mentee Reception

Annual DBA Night at the Dragons

DBA CLE Seminar www.daybar.org

May 2019 Dayton Bar Briefs

Estate Planning

Zoom Lens: Focus on the Annual Probate Law Institute

ach March, the DBA Estate Planning, Trust & Probate Law Committee offers its Annual Estate Planning, Trust & Probate Law Institute. Like prior years, the seminar highlights current topics of interest to practicing attorneys. There are always competent presenters, friendly faces and lunch. This year we were pre-approved by the Ohio Supreme Court for 6.5 CLE credits approved for OSBA certified specialists in Estate Planning Trust and Probate Law as well as ethics credits. Speakers were well-received and their expertise in their area is distinct. The Committee sends a special thanks to the speakers for sharing their knowledge and experiences with the attendees. Seventy-five lawyers were treated to a close-up look at some of the cutting-edge issues in the practice of law in Estate Planning, Trust and Probate Law. Also, we would like to recognize and thank LCNB National Bank for sponsoring our event. For those who did not attend, there will be a video re-play offered by the DBA. I would urge you to spend time viewing it. One of the advantages of the seminar is the insight of lawyers and judges from around the state, who willingly share their expertise with the local bar. For example, Susan Racey from Tucker Ellis in Cleveland spoke about Marital Rights in Ohio (“I Do – I Don’t”). Old and new questions involving ante-nuptial agreements and the use of trusts to avoid assertion of marital rights in a probate estate were addressed. Given that 45 states allow postnuptial agreements, there is an active discussion in the General Assembly as to whether to amend Ohio’s prohibition of these agreements. Stay tuned. Ed Morrow from US Bank in Cincinnati, who was a fixture in the practice in Dayton while at KeyBank, discussed the joint marital trust, which is increasingly becoming a tool of choice for estate planners. His topic, Merge and Splurge, is very timely and a necessary arrow in the quiver of estate planning tools. These are possible tools for accomplishing some goals of the currently-prohibited antenuptial agreement. One of the presenters, Beth Weinewuth from Vorys in Cincinnati gave us a summary of the newly- enacted probate bill, known as Amended Substitute H.B. 575. She stated the mammoth bill is really “probate on steroids.” It creates significant changes in estate planning, trust and probate law. Some of the changes are “fixes” to Court decisions; others are fixes to well-intentioned law that had some holes. The genesis for this bill, which was effective March 22, 2019, was the EPTPL Section of the OSBA. Here are some of the critical changes which are a win for the citizens of Ohio and those who practice in this area. Under R.C. 2113.032, any person eligible to be appointed as the personal representative of an estate may file an application with the probate court for release of the decedent’s medical records and billing records for use in evaluating a potential wrongful death, personal injury or survivorship action on behalf of the decedent, without opening an estate. This may have some unintended consequences and create more sparring and contested races to open an estate.

Dayton Bar Briefs May 2019

By David D. Brannon Chair: DBA Estate Planning Brannon & Associates

By Edward M. Smith Chair: DBA Estate Planning Nolan Sprowl & Smith

Under R.C. 2109.41 and 4705.09, attorneys may hold short-term nominal funds of fiduciary clients (e.g., estate) in their IOLTA, without prior approval by a court. Thankfully, the requirement to have a separate IOLTA for estate funds deposited only with Court permission was fixed. Under Chapter 5817, a testator and a settlor may initiate a declaratory judgment action during his or her lifetime requesting a judgment declaring the validity of a will and trust and the enforceability of their terms. This is intended to improve the validation process and include trusts rather than the prior law which only allowed this process for wills. Be warned, as this process may require disclosure of the contents of the trust. Chapter 147 now allows electronic notarizations in Ohio. There will be centralized oversight of how this process will work by the Ohio Secretary of State. New qualification requirements will be set for traditional notaries and there will be guidance for notarial acts. It is not so simple as a notary viewing someone sign their name via Skype or other video streaming media. Speaking of electronic documents, a foreign Last Will and Testament is not valid in Ohio unless the Will was executed with the testator physically present in the jurisdiction in which it was executed.1 This precludes an Ohio testator executing a Nevada Will while sitting at the computer in Ohio. More will be coming on electronic Wills. A huge victory for attorney-client privilege became law with an addition to R. C. Section 5815.16, the original of which one of your writers participated in drafting a few years back. The legislature nullified the fiduciary exception to attorney-client privilege (created by case law), with a new provision that treats fiduciaries no differently than individuals when consulting with their attorney. In short, the attorney-client privilege applies to communications with the fiduciary’s attorney, and does not require disclosure to third-parties to whom a fiduciary may owe duties. continued on page 13

ENDNOTES: 1

R.C. Sections 2107.18 and 2107.20.

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ESTATE PLANNING: Zoom Lens: Focus on the Annual Probate Law Institute continued from page 12 Judges graced us with their insights too. We were pleased that Judge Jack Puffenberger, Probate Judge of the Lucas County Probate Court, graciously agreed to speak on GPS for Ethical Practice in the Probate Arena. He had some very interesting insights on probate practice. In the past, he had been presenting on the Case Law Update that he gave for many years to the Ohio Probate Judges. Now Judge Elinor Marsh Stormer from Summit County (Akron) handles that important topic but was unable to attend personally. One of her Magistrates, Paula Haas, a Dayton area native and University of Dayton undergrad, kindly gave that presentation. We were honored to have such willing participation from the judiciary. And of course, Judge Alice O. McCollum’s Magistrates David Farmer and Joseph Gallagher, along with the Judge, were gracious in giving us insight on issues in the local practice. I can safely say that just about every attendee stayed to hear our Probate Court’s presentations. I can say, without question, there were numerous lawyers who expressed their appreciation for the Montgomery County Probate Court’s “Hour of Power.” Next, the Court highlighted a new procedure when guardianships involve minors age 14 or older. In new cases where there is a minor age 14 or older, the application will be filed and set for one hearing. The Applicant must see that the minor (age 14 or older) is brought to the Court for personal service of notice at least 7 days prior to the hearing or the hearing will be continued. Regarding citations, the Probate Court is adopting a new citation order. This order requires counsel of record to also attend the citation hearing along with the fiduciary. It is important that you review the new citation order found at the Court’s website. Finally, any action filed as to any inter vivos trust (that is not already subject to the jurisdiction of the Court) will be required to be initiated by filing a complaint and not by the filing of a Motion or Application. We have had some great presenters at our monthly meetings, normally held on the first Wednesday of each month at 4:00 p.m. at the DBA Seminar Room. We appreciate and thank all who have been presenters. We also truly appreciate all those who attend monthly committee meetings, the December Round-Up and the Annual Probate Law Institute. All DBA members are welcome. Please join us.

The DBA is looking for volunteers for this upcoming Wills for Vets Event! Saturday, May 18th Dayton VA Medical Center 4400 W. Third St., Dayton, OH

Training: 8:30am Appointments:10:00am - 2:00pm Contact: Chris Albrektson calbrektson@daybar.org

Did You Know?

pping up a r w e r a es te it m DBA Com for the Summer. d help n a ow n in jo n a c You ! plan for next year mittee om C n oi J / g r .o r a b y Visit: www.da R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459

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May 2019 Dayton Bar Briefs

2019 Annual

mEETING Friday, MAY 31, 2019 5:30pm | Sinclair Community College Honoring

David P. Pierce

Year of Service as 2018-19 DBA President

Swearing in of

The Honorable Mary L. Wiseman as 2019-20 DBA President and the 2019-20 Board of Trustees

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Don't Miss the Premier DBA Event of the Year Become A Sponsor!

2019 DBA Annual

mEETING 5:30pm | Sinclair Community College

Sponsorship Opportunities

Interested in Sponsorship? Contact: Chris Albrektson

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937.222.7902 calbrektson@daybar.org

Silver Level ($1,200):

• Sponsor recognition on back cover of program • Sponsor recognition listed inside of program • Table of 8 at Annual Meeting Dinner • Recognition during dinner presentation • Logo/Name on electronic signage at dinner • Logo/Name on electronic signage at DBA (pre + post event) • Logo/Name on DBA website and other marketing • Recognition via print in (2) Dayton Bar Briefs magazine issues

Bronze Level ($600):

• Sponsor recognition listed inside of program • 4 seats at Annual Meeting Dinner • Recognition during dinner presentation • Logo/Name on electronic signage at dinner • Logo/Name on electronic signage at DBA (pre + post event) • Logo/Name on DBA website and other marketing • Recognition via print in (2) Dayton Bar Briefs magazine issues

Patron Level ($300):

• Sponsor recognition listed inside of program • 2 seats at Annual Meeting Dinner • Recognition during dinner presentation • Logo/Name on electronic signage at dinner • Logo/Name on electronic signage at DBA (pre + post event) • Logo/Name on DBA website and other marketing • Recognition via print in (2) Dayton Bar Briefs magazine issues

/events/annualmeeting

May 2019 Dayton Bar Briefs

ABLE/LAWO

The Campaign for Equal Justice is Underway! A A

ngela and her son were hospitalized twice as they struggled to get their landlord to fix a malfunctioning water heater that was leaking carbon monoxide poisonous gas into their home. Agnes, who is elderly and on fixed income, plunged desperately into $8,000 in debt for a hearing aid. It’s a good thing that public interest lawyers were there to help. For Angela, after an attorney pressed the landlord to remedy the problem, the mother and child were safe from a potentially fatal outcome. For Agnes, not only was her debt cleared, she was informed that her Medicare Advantage Plan would provide the hearing aid at no cost to her. Now, she can hear more clearly and breathe easier. Contributions to the Campaign for Equal Justice have a dramatic effect on the lives of thousands of area low-income residents who are struggling to overcome barriers to a stable life. While Advocates for Basic Legal Equality, the Greater Dayton Volunteer Lawyers Project and Legal Aid of Western Ohio assisted more than 7,000 people locally last year, thousands more need their help. A study by the federal Legal Services Corporation revealed that 86 percent of the civil legal needs of low-income people go unmet because they cannot afford representation. “I believe that programs like those sponsored by ABLE, LAWO and the GDVLP are one of the most important ways that members of the legal profession can give back to our community and help those in need,” says Jeffrey A. Mullins, a partner of Taft Stettinius & Hollister LLP, who will serve as a 2019 Campaign for Equal Justice co-chair. Mullins and Co-chair Mary Ann Poirier Recker, vice president and general counsel of the University of Dayton, will lead this year’s campaign which launches on Law Day, May 1. By increasing the number of contributors and with increased generosity of continuing donors, the campaign is expected to reach a goal of $200,000 that will be used to support the operations of the GDVLP, LAWO and ABLE. The nonprofit organizations protect people from domestic violence, homelessness, inadequate accommodations for disabilities, health care, education and infringement on the rights of people who are elderly, immigrants and agricultural workers. Funds and contributions raised through the organizations’ events also count towards the campaign. Cassandra Andres Rice of Porter Wright Morris and Arthur, LLP and her husband, Michael Rice of Surdyk Dowd & Turner, Co. LPA, are co-chairs of the Access to Justice Awards Celebration! that is scheduled November 14 at Sinclair Community College. Ann Charles Watts of Dinsmore & Shohl LLP and a longtime fundraiser, and her husband, Jason A. Hillard, investment advisor of Edward Jones, are co-chairs for Justice on Tap! The event will be held October 14, at the Troll Pub at the Wheelhouse. Credit card donations may be made online at campaign4equaljustice.org or by mailing a contribution to Campaign for Equal Justice, c/o ABLE and LAWO, 130 W. 2nd St., STE 700, Dayton, OH 45402-1501. For additional information, please call 937-535-4432. The client names above have been changed to protect their anonymity. If you are interested in serving on a committee to plan the campaign and events, please contact Karla Garrett Harshaw: kharshaw@ablelaw.org or 937-535-4432

2019 Campaign for Equal Justice Co-Chairs:

Jason Hillard

Jeffrey A. Mullins

Mary Ann Poirier Recker

Cassandra Andres Rice

Michael Rice

Ann Charles Watts

Dayton Bar Briefs May 2019

937.222.7902

continuing legal education Wednesday, May 1st | 1:00-4:15pm (video replay)

The Anatomy of a Will Contest

3.0 General Hrs Member $105 | NonMember $150 | Passport $0

Thursday, May 16th | 9:00-12:15pm

Business Law Basics: Business Contracts and LLCs

3.0 General Hrs | 3.0 NLT hours* Presenter: Zachary B. White, Coolidge Wall Co., L.P.A. DBA Member $105 | NonMember $150 | Passport Holder $0 | NLT/Paralegal $55 *New Lawyer Training credit pending with the Supreme Court of Ohio

Monday, May 20th | 1:00-4:15pm (video replay)

Ethics Case Law Review and New Advisory Opinions 3.0 Professional Conduct Hrs Member $105 | NonMember $150 | Passport Holder $0

Wednesday, May 29th | 1:00-4:15pm (video replay)

Judge Langerâ&#x20AC;&#x2122;s 2018 Criminal Law Update

3.0 General Hrs Member $105 | NonMember $150 | Passport Holder $0

Business Law Basics:

Forming Limited Liability Companies and Preparing Common Business Contracts

Thursday, May 16th 9:00-12:15am 3.0 CLE Hrs | *3.0 NLT Hrs Credit pending with the Supreme Court of Ohio Presenter: Zachary B. White, Coolidge Wall Co., L.P.A. DBA Member $105 NonMember $150 Passport Holder $0 NLT/Paralegal Member $55

Friday, June 7th | 8:30-3:45pm (video replay)

Criminal Law Certification

6.25 General Hrs Member $215 | NonMember $300 | Passport Holder $0 Wednesday, June 12th | 1:00-4:15pm (video replay)

Ethics Case Law Review and New Advisory Opinions 3.0 Professional Conduct Hrs Member $105 | NonMember $150 | Passport Holder $0

Spring into action!

Earn CLE Anytime, Anywhere. Take up to

12 hours of self study credit.

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

Daybar.ce21.com

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About the Seminar: When a client approaches an attorney with a new business plan or idea, it can be a very exciting time for both the client and the attorney. Learn best practices in preparing common business contracts and forming LLCs as well as common terminology that business lawyers should understand. Aimed at non-business lawyers and new lawyers, this presentation will provide you with the legal fundamentals of these key practice areas.

to register visit:

daybar.org/businesslawbasics

May 2019 Dayton Bar Briefs

Judicial Candidacy Evaluation Poll Should It Stay or Go? By The Honorable Mary L. Wiseman DBA First Vice President Montgomery Cty Common Pleas Court

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s many long-time members will recognize, the DBA has traditionally not endorsed in political races. Instead, it served its members and the general public by conducting a poll evaluating judicial candidates. In 2018, the DBA published the results of its Judicial Candidacy Evaluation Poll for three contested judicial races on the general election ballot. That poll reflected the opinion of 229 DBA members representing approximately 16% of the DBA membership. The poll has suffered from a scant and declining response rate over time. The 2017 judicial poll reflected the views of 12.5% of the DBA membership, while the 2015 survey reflected 20% of our members and the 2014 survey yielded the opinions of 31% of the DBA membership roster. In 2018, as well as in the past, the Judicial Candidacy Evaluation Poll was published with the disclaimer that it did not represent the position of the DBA, but merely collected the opinions of those members responding to the survey. After the November 2018 general election, the DBA Board sought to clarify and strengthen the DBA’s non-endorsement policies as it pertains to individual candidates for election. A special committee appointed for that purpose (composed of members Susan Solle, Terry Posey, and myself ) developed additional guidelines for recurring issues confronted by the DBA and its leaders regarding political candidates. Primarily, those guidelines instruct that individual candidates should not serve as speakers, panelists, CLE presenters, hosts, or in other roles at DBA events and programs during the period when the candidate’s contested election cycle is active. This will prevent candidates from using the DBA’s brand, goodwill, and platforms for communications and appearances that are imbued with potentially political purposes. These

Dayton Bar Briefs May 2019

guidelines recognizes that the utmost care must be given to respect the diverse practice areas, viewpoints, and perspectives that span across the DBA membership, while avoiding any perceived appearance of partiality. The DBA has adopted these guidelines to assist DBA leaders, members, and staff. The special committee also recommended either a discontinuation or a substantial revision in approach, format, and content of the judicial poll, based on several identified factors. The survey results may not be a statistically valid representation of the opinions of the DBA membership. Further, the poll may not accurately reflect the capabilities or characteristics of the judicial candidates. Moreover, other useful, accessible, and informative resources provide detailed information about judicial candidates, such as the Dayton League of Women Voter’s Guide and Judicial Votes Count Website (http:// blogs.uakron.edu/judicialvotescount/). These resources avoid possibly misleading or misunderstood survey results in favor of

information supplied directly by the judicial candidates. Hence, the DBA Board of Trustees has under consideration the elimination of the Judicial Candidacy Evaluation Poll. Prior to terminating the survey, however, the Board wanted to seek the membership’s input. Should or should not the judicial poll be terminated? Your viewpoint, opinion, and experience regarding this question would be an important consideration. Please contact me (mary.wiseman@montcourt.oh.gov) by May 31, 2019 with your perspective on maintaining or discontinuing the judicial evaluation poll, so that the DBA Board of Trustees can consider your input on this important topic. You also can share your opinion with Susan, Terry, or I as we interact at various DBA events, including the Annual Meeting set for May 31st. We look forward to hearing your thoughts and perspectives on this important and interesting question.

937.222.7902

www.daybar.org

May 2019 Dayton Bar Briefs

Law & Tech

The Ohio Data Protection Act –

Incentivizing Businesses with a Sword to Fight Breaches and a Shield to Defend in Litigation By Zachary S. Heck Chair DBA Editorial Board Taft Law

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ast November, the Ohio Data Protection Act (“ODPA”) went into effect, providing companies conducting business in Ohio with a safe harbor from particular litigation resulting from a data breach. Specifically, the ODPA creates a safe harbor affirmative defense whenever an entity adopts cybersecurity measures designed to: (1) protect the security and confidentiality of personal information; (2) protect against any anticipated threats or hazards to the security or integrity of personal information; and (3) protect against unauthorized access to and acquisition of information that is likely to result in a material risk of identity theft or other fraud.

Drawing Upon Reliable Frameworks

The motivating principle behind ODPA is to provide organizations with an incentive to achieve a “higher level of cybersecurity” by maintaining a cybersecurity program that substantially complies with one of eight industry-recommended frameworks. Businesses that substantially comply with any of the frameworks outlined in the ODPA are entitled to a “legal safe harbor” to be pled as an affirmative defense in tort claims related to a data breach stemming from alleged failures to adopt reasonable cybersecurity measures. The eight frameworks are: 1. Center for Internet Security’s Critical Security Controls for Effective Cyber Defense; 2. Federal Information Security Modernization Act; 3. Federal Risk and Authorization Management Program’s Security Assessment Framework; 4. Gramm-Leach-Bliley Act’s Safeguards Rule; 5. Health Information Technology for 20

Dayton Bar Briefs May 2019

Economic and Clinical Health Act;

6. Health Insurance Portability and Accountability Act’s (HIPAA) Security Rule;

7. International Organization for Standardization (ISO)/International Electrotechnical Commission’s (IEC) 27000 Family – Information Security Management Systems Standards; and 8. National Institute of Standards and Technology’s (NIST) Cybersecurity Framework. For entities already required to comply with a framework above (such as healthcare entities under HIPAA, financial institutions under GLBA, and government contractors under NIST), the safe harbor defense is automatically extended. For companies without an established framework, the law does not promote a one-size-fits-all approach to security. The ODPA, instead, offers companies flexibility to establish a cybersecurity program that is right for the company based on the organization’s size and complexity, the nature and scope of its activities, the sensitivity of the personal information protected under the program, the cost and availability of tools to improve its information security, and the resources available to the organization. Critically, for businesses that accept payment cards, the Payment Card Industry’s Data Security Standard (PCI DSS) is not a framework eligible for safe harbor. Businesses complying with PCI DSS must also comply with one of the above frameworks to qualify for the safe harbor affirmative defense.

Protections and Limitations

The ODPA’s “legal safe harbor” does not provide businesses with blanket immunity to a data breach lawsuit. Instead, the law creates

an affirmative defense to tort actions (such as invasion of privacy and negligence) brought against entities conducting business in Ohio that have suffered a data breach involving personal information or, such as with government contractors, restricted information. In defending itself against litigation, the entity has the burden of establishing, by a preponderance of the evidence that its cybersecurity program complied with the law’s requirements at the time of the breach. Another significant limitation is that the safe harbor does not apply to contract-based actions, such as those that arise from a business-vendor dispute or between a business and its customers where a contractual relationship is alleged.

Breach Notification

The ODPA does not amend Ohio’s current breach notification laws. Any entity that adopts one of the safe harbor’s cybersecurity frameworks must still provide notification of data breaches affecting Ohio residents. In Ohio, notification must occur no later than 45 days following the discovery or notification of the breach (subject to specific exceptions for legitimate law enforcement needs and measures necessary to determine scope of the breach). Further, neither the ODPA, nor Ohio’s notification law affects breach notification requirements for HIPAA-covered entities and financial institutions that have their own notification requirements under federal law.

continued on page 21

937.222.7902

LAW & TECH: The Ohio Data Protection Act continued from page 20

The Ohio Board of Professional Conduct

Blockchain Transactions

Finally, the ODPA also amended state regulations to give blockchain-based documents the same legal legitimacy as any other document, thereby allowing the use of digital ledgers for legal, financial, and medical records. Specifically, the law amends Ohio’s communications regulations to state that “[a] signature that is secured through blockchain technology is considered to be in an electronic form and to be an electronic signature.” To put it another way, using private keys to sign a transaction on a blockchain now has the same legal authority as a signed contract. With this amendment, Ohio joins states such as Arizona, Florida, and California in passing legislation recognizing signatures and smart contracts secured by blockchain technology as legal documents.

What’s Next?

Companies should approach data governance as a question of WHEN a breach will happen, and not IF it will happen. Although we have yet to see litigation where the ODPA’s defense has been successfully employed, litigation surrounding data breaches and responses continue to grow year after year. The ODPA provides businesses with an opportunity to evaluate the personal information they create, maintain, receive, and share, as well as the safeguards in place to protect that information. Businesses should map and classify the data they collect to understand what information they collect, and how that information is flowing through the organization. Once businesses understand what data they have and where that data is located, they can make informed decisions about appropriate administrative, physical, and technical safeguards to adopt, and create a cybersecurity program

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that makes sense based on the company’s size, revenues, resources, and sensitivity of information maintained. No matter how robust a company’s security program may be, breaches are an inevitable part of doing business. The ODPA is the perfect excuse for businesses to create a sword in fighting breaches to begin with, and a shield for litigating the aftermath.

On April 5, 2019, the OBPC issued Adv. Op. 2019-2. A complete searchable collection of the Board’s advisory opinions, a subject index, and an advisory opinion status list are available at: https://www.bpc.ohio.gov/advisory-opinions

Ohio Board of Professional Conduct 614.387.9370|www.bpc.ohio.gov

DAYTON Bar Association

Trust

HERBERT M. EIKENBARY What is The Eikenbary Trust?

The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance. Individual loans, are available up to $6,000 at 4% interest, while grants up to $4000 are also available.

How to Apply: If you would like to take advantage of these programs, contact:

Jennifer Otchy DBA Executive Director Dayton Bar Association 109 N. Main St., Suite 600 Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org

May 2019 Dayton Bar Briefs

DBA Rising Star

Mitchell J. Anderson Esq.

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lready a two-year Ohio Super Lawyers Rising Star, our Dayton Bar Association Rising Star this month is 35 year-old, Mitchell J. Anderson. Born in Ludlow, Kentucky, Mitch is the son of Fred Anderson, the retired Chief of Police for the Lakeside Park/Crestview Hills combined police district in northern Kentucky, and Robin Anderson, who is employed by online retail giant, Amazon.com. After graduating from Marianist-based Covington Catholic High School, Mitch began his college career at Eastern Kentucky University, but left there after one year to complete his degree in political science and international relations at the big school, the University of Kentucky. In the fall of 2007, Mitch entered law school at the University of Dayton, graduating in 2010. During the summers after his first two years in law school, Mitch worked by day as a law clerk at a Hilton Head, South Carolina law firm, and by night as a server at “Sticky Fingers,” a barbecue restaurant. During his third year, Mitch worked for Sam G. Caras as a law clerk, an association that would extend beyond graduation and bar passage until April 25, 2016, when he joined the law firm of Intili & Groves Co., L.P.A. Over his nine-year legal career, Mitch has advocated passionately for plaintiffs injured by vehicle and professional negligence in trial and appellate courts, state and federal, throughout Ohio. He is especially proficient in defending health and automobile insurance subrogation claims. Recently, Mitch has broadened his practice into the fields of business and civil rights litigation. He is a member of the Ohio State Bar Association, the Dayton Bar Association, and the Carl D. Kessler Inn of Court. Mitch attributes his strong work ethic to his blue-collar upbringing and his father’s admonition to “work like you’re broke and hungry, so you’ll never be either.” But, work alone does not define, Mitchell Anderson. He is perhaps Pearl Jam’s most ardent fan in the legal profession having been to no less than thirty of their concerts, the last one in Boston at Fenway Park. Like most U.K grads, he bleeds blue during college basketball season. Because he is a close friend of Ken Anderson’s

Dayton Bar Briefs May 2019

offspring (no relation), he is also and avid Cincinnati Bengals fan. In fact, Mitch has accompanied the former Cincinnati quarterback in the training camp locker rooms of the Bengals and the Pittsburgh Steelers with whom Anderson was once an assistant coach. A student of ancient Greek philosophy, two Aristotelian teachings guide Mitch in life and in the practice of law:

Anyone can become angry – that is easy. But to be angry with the right person, to the right degree, at the right time, for the right purpose, and in the right way – that is not easy. Excellence is never an accident. It is always the result of high intention, sincere effort, and intelligent execution; it represents the wise choice of many alternatives - choice, not chance, determines your destiny. ~Aristotle, The Nicomachean Ethics Moved by these principles, Mitch has already distinguished himself amongst his peers. In addition to his recognition in Ohio Super Lawyers, David C. Greer inscribed Mitch’s copy of God is Merciful as follows: “To Mitch, a polished professional and a worthy adversary.” Such high praise from such reputable sources bodes well for Mitch’s professional future and for the stature of our bar association.

By Thomas J. Intili DBA Editorial Board Intili & Groves., Co. LPA

937.222.7902

The Value of DBA Membership is Immeasurable Join or Renew Today & Get Active!

Welcome New DBA Members!

SAVE THESE SPECIAL DBA DATES! ATTORNEYS

LAW STUDENTS

Mitchell R. Carnes

Angelique Berry

Sebaly Shillito + Dyer

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Tamela Womack City of Fairborn

Meghan E. Yost

MAY

go online and register daybar.org

Friday, May 10th @ 11:30am Chancery Club Luncheon Wednesday, May 15th @ 11:30am Celebration of Life Memorial Luncheon Saturday, May 18th @ 10:00am Wills for Heroes Thursday, May 16th @ 9:00am Business Basics Seminar

JUNE

Thursday, June 27th @ DBA Dragon Ticket Release

JULY

Thursday, July 11th @ 7pm DBA Night at the Dragons

OCTOBER

Monday, October 21st @ TBA First Monday in October Celebration

Friday, May 31st @ 6:00pm Annual Meeting

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May 2019 Dayton Bar Briefs

From The Judges Desk

Down the Rabbit Hole:

An Introduction to New Sentencing Laws By The Honorable Barbara P. Gorman Montgomery County Common Pleas Court - General Division

n its last session, the Ohio General Assembly enacted two laws that will affect criminal sentencing in Ohio. The less complicated of the two, SB 231, establishes a violent offender database. SB 201, which is far more complex, restores indefinite sentences for certain felonies committed on or after March 22, 2019. This article cannot begin to address all of the provisions and intricacies of these laws. Rather, consider this a warning to the members of the Bar to be aware of and to educate yourselves on their content.

SB 231- Sierah's Law

Single Count: Minimum and MaximumTerms

Sierah Joughin was twenty-one years old when she abducted and murdered by an assailant who had been convicted previously of abduction. Her death led to passage of SB 231 that became effective on March 20, 2019 and establishes a violent offender registry. Under this law, any person who is convicted of, pleads guilty to, or is serving a sentence for Aggravated Murder, Murder, Voluntary Manslaughter, Kidnapping, or F-2 Abduction is required to enroll each year for ten years in a violent offender database upon release from prison. Prior to sentencing or before being released from prison, a violent offender must be advised of the presumption of the duty to enroll and of the offender’s right to file a motion to rebut the presumption. Any such motion to rebut the presumption of the duty to enroll on the registry will require a judicial hearing. It is anticipated that new plea forms and termination entries will reflect this advisement.

The sentencing range for qualifying F-1s and F-2s is based on the establishment of the minimum and maximum terms for an offense or offenses. Thus, in cases of sentencing on a single count qualifying F-1 or F-2, the minimum term will be determined by the judge under the existing F-1 or F-2 sentencing ranges. The maximum term will then be calculated as the minimum plus 50% of the minimum. For example, an eight-year minimum sentence under the old definite sentencing scheme now results in an indefinite sentence of eight to twelve years. While determining a sentencing range for an individual offense is straight-forward, the process becomes much more difficult when calculating the minimum and maximum aggregate terms for concurrent and consecutive sentences. In these situations, the aggregate maximum term is an independent term that is added to the aggregate minimum term. The aggregate maximum term is not attached to any specific count.

SB 201- The Reagan Tokes Law

Concurrent Sentences: Aggregate Minimum Term

On March 22, 2019, SB 201 or the Reagan Tokes Law, became effective, thereby returning indefinite sentences to Ohio for certain felonies. Reagan Tokes was a twenty-one year old Ohio State student who was abducted, robbed, raped, and murdered by a previously convicted sex offender who had been released from prison only months earlier. At the time of the murder, Reagan’s assailant was wearing a GPS ankle monitor. The circumstances surrounding Reagan’s death led the Ohio General Assembly to enact a law that returns indefinite sentencing to Ohio for certain felonies committed on and after March 22, 2019. The law, which amended fifty-seven existing Ohio Revised Code Sections and added five new ones, will increase the complexity of plea and sentencing hearings. Under the new law, any F-1 or F-2 committed on or after March 22, 2019 that is not subject to life imprisonment is a “qualifying felony” subject to an indefinite prison term. A “qualifying felony” need not be an offense of violence and does not have to contain a particular specification or enhancement clause in the indictment. F-1s and F-2s that are subject to life imprisonment (thus already indefinite) and all F-3s, F-4s, and F-5s are non-qualifying felonies and not subject to the new sentencing scheme. 24

Dayton Bar Briefs May 2019

In the case of concurrent sentencing for multiple offenses, the aggregate minimum term is the longest of the minimum terms imposed for the offenses, even if the longest minimum term is not imposed on a qualifying felony.

Concurrent Sentences: Aggregate Maximum Term

While the aggregate minimum term in a concurrent sentence does not have to be based on a qualifying felony, the aggregate maximum term is calculated by adding the longest of the minimum terms imposed for a qualifying felony being sentenced plus one-half of the minimum term for the most serious qualifying F-1 or F-2 (not necessarily the qualifying offense with the longest minimum term) being sentenced. If a mandatory prison sentence for a gun specification is imposed, it is served consecutive with and prior to the aggregate minimum term. A gun specification is not added to increase the aggregate maximum term.

Consecutive Sentences: Aggregate Minimum Term

When imposing consecutive sentences, the aggregate minimum term is the sum of the minimum terms of all qualifying F-1s and F-2s and non-qualifying felonies. continued on page 27

937.222.7902

FROM THE JUDGES DESK: Down the Rabbit Hole: An Introduction to New Sentencing Laws continued from page 26

Have you joined a DBA Committee? Join Today and Lend YOUR Voice to the Conversation!

Consecutive Sentences: Aggregate Maximum Term

The aggregate maximum term for consecutive sentences is the aggregate minimum term (which can include non-qualifying felonies) plus one-half of the longest minimum term for the most serious felony being sentenced. For purposes of determining the aggregate maximum term for a consecutive sentence, the most serious felony need not be a qualifying felony. The minimum sentence for a non-qualifying F-1 with a life sentence, therefore, can be used to determine the maximum aggregate consecutive sentence.

“Presumptive Release Date”

With the imposition of indefinite sentencing, SB 201 also creates a “presumptive release date,” which is the end of the minimum term for eligible F-1 and F-2 offenders less any jail time credit. This presumptive release date is rebuttable by the Ohio Department of Rehabilitation and Correction (“ODRC”). In order to rebut the presumptive release date, ODRC must hold an internal administrative hearing and find that one or more statutory conditions exist. The trial judge has no input in this process, and there is no procedure for judicial review of a decision by ODRC to deny release.

“Earned Reduction of Minimum Prison Term”

The law also provides for an Earned Reduction of Minimum Prison Term (“ERMPT”) for qualifying F-1 and F-2 offenses, even if they carry mandatory prison sentences. Sexually oriented offenses are not eligible for ERMPT. The application of ERMPT by ODRC can result in reduction of between five percent and fifteen percent off the minimum term. Once ERMPT is requested by ODRC, there is a rebuttable presumption that the defendant will receive the credit. There must be a judicial hearing, however, on all requests by ODRC to apply ERMPT, and the court must make one of five statutory findings to rebut the presumption that the defendant should receive the credit. CONCLUSION As a result of SB 201 and SB 231, new plea advisements and other forms will be drafted. It is expected that the judicial advisements at plea hearings will include the aggregate sentencing ranges, notice of the presumptive release date, and ODRC’s ability to rebut the presumption, as well as post-release control conditions. These new laws will each present new challenges in the months ahead. If this is as clear as mud to you, join the club. Please research these changes and work with each other and the Court as the laws are applied to future cases.

www.daybar.org

May 2019 Committee Meeting Dates Thursday, May 9 @ Noon Wednesday, May 1 @ 4pm CANCELED - Estate Planning Trust & Probate Domestic Relations Thursday, May 2 @ Noon Workers Comp & Social Security

Thursday, May 9 @ 5:30pm Real Property

Monday, May 6 @ 4pm CANCELED - Juvenile Law

Friday, May 10 @ 11:00am Public Service & Congeniality

Tuesday, May 14 @ Noon Tuesday, May 7 @ Noon CANCELED - Young Lawyers Division (YLD) Labor & Employment Law Tuesday, May 7 @ Noon CANCELED - Diversity Issues

Tuesday, May 14 @ 5:30pm Civil Trial Practice

Wednesday, May 8 @ Noon Appellate Court Practice

Wednesday, May 15 @ Noon Criminal Law & It's Enforcement

Wednesday, May 8 @ Noon Federal Practice

Thursday, May 23 @ Noon Law & Technology

for more meetings details, visit:

daybar.org/events

May 2019 Dayton Bar Briefs

Are you a lawyer who helps other lawyers? By Scott R. Mote, Esq., Executive Director of the Ohio Lawyers Assistance Program

hen asked why you became a lawyer, a common response is “I want to help people.” And we do just that. We help people get their homes back, we help them resolve disputes, get child support, find justice, among many other things. But, what about helping people in our own profession? To be a good lawyer, one has to be a healthy lawyer. A recent study of more than 13,000 lawyers --The Path to Lawyer Well-Being: Practical Recommendations For Positive Change-found that 17 percent of practicing lawyers experienced some level of depression, 14 percent experienced severe anxiety, 23 percent had mild or moderate anxiety, and six percent reported serious suicidal thoughts in the past year. We throw these words around—words such as depression, anxiety, PTSD, OCD—but do we understand their meanings? If more lawyers get familiar with some of the common ailments that plague some of those in the legal profession, we can do a better job of helping them. Helping our colleagues in distress will help maintain public confidence in the profession and reduce sigma attached to mental health and substance use disorders.

Common Mental Disorders Anxiety

Dementia is the development of multiple cognitive deficits manifested by both memory impairment (impaired ability to learn new information or to recall previously learned information) and one (or more) of the following cognitive disturbances:

Attention-deficit/hyperactivity disorder (ADHD)

These cognitive deficits cause significant impairment in social or occupational functioning, and represent a significant decline from a previous level of functioning.

Attention-deficit/hyperactivity disorder is a brain disorder that interferes with normal functioning. Major symptoms include inattention, hyperactivity and impulsivity. Some signs include:

• Missing details • Making careless mistakes • Not follow through on duties • Easily sidetracked • Excessive energy

Bipolar disorder

Bipolar disorder, also known as manic depression, is a mental health condition that causes extreme mood swings that include emotional highs (mania or hypomania) and lows (depression). Symptoms include:

• Abnormally upbeat • Decreased need for sleep • Poor decision-making: i.e going on buying sprees, taking sexual risks or making foolish investments • Depressed mood • No interest in activities • Sleeping too much • Feelings of worthlessness or excessive or inappropriate guilt

Dementia

Anxiety disorder, the most common mental illness, affects close to 30 percent of adults. Anxiety is when you become tense in anticipation of a future event. Anxiety also makes a person avoid certain events because of fear. You have probably heard of anxiety attacks, where a person is so worried about an event that causes the person to sweat, shake uncontrollably, and have fear of losing control. Other common symptoms of anxiety include excessive worrying, agitation, restlessness, trouble falling or staying asleep, and avoiding social situations.

Dayton Bar Briefs May 2019

• Aphasia (language disturbance); • Apaxia (impaired ability to carry out motor activities despite intact motor function); • Agnosia (failure to recognize or identify objects despite intact sensory function); • Disturbance in executive functioning (i.e., planning, organizing, sequencing, abstracting).

Depression

Depression is different than sadness or grief. It is not something that you can just “snap out of.” It is an illness lasting more than two weeks that negatively affects the way you feel and the way you function. A major symptom of depression is a loss of interest in the things you enjoy. Other symptoms include:

• Frequent absences • Inappropriate behavior, moods • Decreasing quality of performance • Inappropriate pleadings, decisions • Co-workers & staff "gossip" about changes in behavior • Malpractice and disciplinary claims • Missed hearings, appointments, depositions • Loss of clients, practice, respect

Obsessive-compulsive disorder

Obsessive-compulsive disorder (OCD) is a disorder in which a person has uncontrollable, reoccurring thoughts (obsessions) and behaviors (compulsions). Common symptoms include:

• Fear of germs or contamination • Unwanted forbidden or taboo thoughts • Aggressive thoughts toward others or self • Having things symmetrical or in a perfect order • Excessive cleaning and/or handwashing • Ordering and arranging things in a particular, precise way • Repeatedly checking on things, such as repeatedly checking to see if the door is locked or that the oven is off • Compulsive counting

Post-traumatic stress disorder

Post-traumatic stress disorder occurs in some people who have witnessed a terrifying or shocking event. The person may have flashbacks, bad dreams or terrible thoughts, which prevent the person from doing his or her normal activities. Some people who suffer from PTSD can be easily startled, have difficulty sleeping, have angry outbursts, negative and distortive thoughts.

Schizophrenia

Schizophrenia is a mental disorder that affects how a person thinks, feels, and behaves. Many people with schizophrenia may seem like they have lost touch with reality. Symptoms include:

• Hallucinations • Delusions • Thought disorders • Movement disorders • Reduced feelings of pleasure in everyday life • Difficulty beginning and sustaining activities • Trouble focusing or paying attention

continued on page 25 937.222.7902

OLAP: Are you a lawyer who helps other lawyers? continued from page 24 The good news

All of these common mental disorders have one thing in common: They interfere with a lawyer’s duty to be competent. But, even though some lawyers suffer from these ailments, the good news is all of these are treatable with talk therapy and/or medication.

The Montgomery County Board of County Commissions, based upon the recommendation of the Montgomery County Court of Common Pleas, General Division, has adopted a resolution implementing a new fee schedule for counsel representing indigent defendants. The new fee schedule is effective May 1, 2019. View this resolution in its entirety, located at the following link: https://bit.ly/2Dt5bmz

You can help!

Some people believe that, when they notice a colleague is having issues, that they should stay out of it, that it is none of their business. But, helping someone with a mental difficulty is your business, especially when it affects our profession. The first step is to have a conversation with the person. Let the person know that you noticed a change in behavior and that you want to help. Listen with an open mind, ask questions, and encourage the person to get help. Refer the person to the Ohio Lawyers Assistance Program. We help Ohio lawyers with all of life’s stresses. No ailment is too small or too large. We are your confidential place to go when life becomes overwhelming. We have helped thousands of lawyers recover from stress, depression, anxiety and all mental health disorders. As lawyers, we help people. Let’s start the conversation about helping our own profession recover from the stresses of being a lawyer. Helping people with mental illness can only help our profession become stronger and remain competent to our clients. We owe that to them.

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May 2019 Dayton Bar Briefs

members on the move

FRIESINGER

RHINEHART

Patricia J. Friesinger, a Dayton attorney, was recently appointed as a Chapter 7 Panel Trustee. In this role, Friesinger will administer cases filed under Chapter 7 of Title 11 of the United States Bankruptcy Code. As a Trustee, Friesinger’s primary duties will be to liquidate assets for the benefit of creditors where possible. Each year, Chapter 7 Trustees distribute approximately $1.5 billion to creditors in the United States. In addition to her new role as a Panel Trustee, Friesinger will continue her private practice at Coolidge Wall Co., L.P.A., where she has worked for over seven years. Friesinger has more than 18 years of experience overall. Within her practice at Coolidge as a shareholder in the Litigation Department, she helps business and corporate clients preserve assets and overcome financial challenges. Friesinger handles complex business disputes, asset protection, out-of-court debt restructurings, creditor/debtor rights, and, when necessary, bankruptcy. Faruki+ Partner Erin Rhinehart was featured on the Instagram channel Women Of Law as an influential female lawyer. Women Of Law empowers female attorneys by connecting, inspiring and promoting the advancement of women in the legal field. The organization highlights important activities, helping to improve the practice and morale of women in the legal community. It strives to encourage and inspire women in the field, on global levels. Rhinehart is a partner at Faruki+, and she leads the firm’s media and communications practice, defends class action litigation, and assists clients as they navigate a variety of contract issues. Her practice also includes, but is not limited to, Class Action Defense and Business Litigation. She also focuses on review and litigation of licensing, distribution, master services agreements, franchise agreements, non-compete issues, development agreements, entertainment, non-disclosure, and non-disparagement agreements.

DUNGAN & LEFEVRE CO., L.P.A. is pleased to announce the following: For more info contact Alandra Buerger, Office Manager 937.339.0511.

JUSTICE

MCGRAW III

WORLEY

J. Steven Justice has been named a 2019 Super Lawyer. He currently practices both civil litigation and criminal defense litigation. As part of his practice, Steve also represents and advises numerous churches and religious organizations with their legal affairs. As a former pastor and seminary graduate, Steve is uniquely qualified to understand the legal needs and issues that churches and religious organizations face. Steve is admitted to the bars of the State of Ohio, the United States Sixth Circuit Court of Appeals, the United States Fourth Circuit Court of Appeals, the United States Third Circuit Court of Appeals and the United States District Courts for the Northern and Southern Districts of Ohio. Steve is certified as a Lawyer of Distinction, rated AV preeminent and is a member of the Federal Bar Association, serving as the 2016-17 President of the Dayton Chapter and as the past National Coordinator for the FBA’s SOLACE Program. William J. McGraw III has again been selected by his peers as a 2019 Ohio Super Lawyer as well as inclusion in the 2019 edition of The Best Lawyers in America. Bill is the president of Dungan & LeFevre and handles estate planning, trust, probate and business planning matters, is a Fellow of the American College of Trust and Estate Counsel, and is an OSBA Certified Specialist in Estate Planning, Trust and Probate Law. He is Past Chair of the OSBA Estate Planning, Trust and Probate Section Council. He has served as an expert witness in trust and estate litigation, is rated AV by Martindale Hubbell and is considered one of Ohio’s preeminent experts in Trust, Estate Planning, and Probate law. Bill has presented at many Ohio CLE conferences and serves on the Editorial Board of the Probate Law Journal of Ohio authoring numerous articles. Bill is the co-editor of the newly revised Ohio Trust Code Manual and co-author, along with his colleague Sarah Worley, of two of the chapters. Sarah G. Worley has again been recognized by Ohio Super Lawyers as an Ohio Rising Star in the areas of Estate Planning and Probate. This recognition is given to highly respected attorneys in practice for fewer than 10 years or under the age of 40. Additionally, Sarah has been certified by the Ohio State Bar Association as a Specialist in Estate Planning, Trust, and Probate Law. In addition to her professional activities, she is involved in the community, serving as a member of the Dayton Children’s Hospital Foundation Board, the Board of Directors for the Troy Chamber of Commerce, and the Steering Committee for Give Where You Live Miami County.

MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted online: www.daybar.org/MembersOnTheMove and are subject to editing. These accouncements are printed as space is available. DBA ADVERTISING: For advertising in the Dayton Bar Briefs or any other DBA Publication- Discount rates are available! Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org 28

Dayton Bar Briefs May 2019

937.222.7902

PICKREL, SCHAEFFER AND EBELING is pleased to announce the following: For more info contact Jan Burden, Marketing Director 937.223.1130.

SANDNER

WAHL

Pickrel, Schaeffer and Ebeling are pleased to announce that attorney Mike Sandner has been re-elected, and Katie Wahl has been elected, to represent District 2 in the OSBA Council of Delegates. The Council of Delegates is the OSBA’s own “house of representatives,” with 133 members, proportionally representing each OSBA district around the state. One of the primary responsibilities of the Council of Delegates is to vet committee and section proposals and determine if they will become priority legislation for the Association, thereby empowering the OSBA’s government affairs team to take them to the Ohio General Assembly (or other appropriate body such as Congress or the Ohio Supreme Court) to be adopted. In 2017 alone, 27 different law changes were enacted based upon OSBA member ideas.

2019-2020

Deadline July 1st

www.daybar.org

FOR SALE HON wood-top conference table, VGC, 42” x 96”, medium walnut finish, $250. Eight HON upholstered armchairs, VGC, olive green with dark walnut wood finish, $40 ea. Call 937/226-9000 or email cwalker@vankleywalker.com for photos. 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 NEED A MEDIATOR/ARBITRATOR? JOHN M. MEAGHER, Judge (Retired) 24 Years Serving as Full Time Mediator/Arbitrator 2305 Far Hills Ave., Dayton OH 45409 Call 937.604.4840 Jmeagher2@gmail.com NUMISMATIC CONSULTATION AND APPRAISAL SERVICES Does your client have a collection of coins, currency, exonumia, precious metals or other money related items? Numismatic appraisals our specialty. Consultation on the orderly disposition and liquidation of numismatic assets. 937-878-8784 www.coinologist.com

DBA Dues Renewal

ad index

classifieds

OFFICE CONDO FOR LEASE OR SALE 305 Regency Ridge Drive In Washington Township. Great, convenient location easy access to I-675 and SR-48 1522 sq. feet. Public and private entrance. Call (937) 433-4642 for more information or to schedule a walk through

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OFFICE SPACE AVAILABLE Entire second floor of 120-year-old historic home consisting of 500 sqft (3 rooms) of usable floor space plus 2 storage closets, separate restroom and outside entrance, opposite scenic Overlook Minipark, overlooking Gazebo and Englewood Reserve, fronting SR 48 with approx. 20,000 passing vehicles/day. Includes all utilities, internet, parking, lawn care, snow removal, janitorial service, mail pickup & delivery. Less than 30 min drive to 5 county seats and 5 min drive to 8 banks, PO & UPS. Selected legal referral. Englewood pop. 15,000—only 4 attys. $1000/mo. Call 937-836-1013. POSITION AVAILABLE Dayton area law firm has an opening for an associate attorney. This individual will be responsible for an independent caseload and client interaction as well as working under the direction of firm partners. Applicant should be hard working and have excellent writing skills. Send resume and writing samples to: Simon Patry, Dysinger & Patry, LLC, 249 S. Garber Drive, Tipp City, Ohio 45371 or spatry@dysingerlaw. com. STUNNING OFFICE SPACE AVAILABLE Local law firm looking to share existing office space. Class A, 4 offices with 2 conference rooms. Phone and internet included, collaboration on Administrative resources available. Fairfield Commons, second floor. Contact Holly Potter 614.737.2900 WELL APPOINTED THREE ROOM OFFICE Professionally decorated private suite with two large offices and front reception office with built in credenza. Private records storage area. Ample parking with at door access. New bathrooms. Privately owned/ managed. Utilities and janitorial included. North Main Street area. $1,500 monthly. Jeffw@donwrightrealty.com (937) 4748122.

OBLIC..............................................................back cover R.L. Emmons & Associates.........................................13 Rogers McNay Insurance................................................27 Sebaly Shillito & Dyer....................................................13 Trisha M. Duff - Mediations...........................................25 May 2019 Dayton Bar Briefs

law-related organizations Dayton Bar Foundation

Help Build Our Foundation. T T

he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Life Essentials Guardianship Program

- Legal Aid of Western Ohio (LAWO)

Write, Call or Email: Jennifer Otchy, Executive Director Dayton Bar Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: jotchy@daybar.org

- Law & Leadership Institute - Wills for Heroes

University of Dayton School of Law

Dayton Bar Briefs May 2019

937.222.7902

Greater Dayton Volunteer Lawyers Project

START Program

(Secure. Transition. And. Reentry. Tactic.) By Amber K. Knouff Esq. Freund Freeze & Arnold

W W

e have all at one time, or another, been told that actions speak louder than words, and this is certainly true when it comes to being compassionate towards others. The women lawyers and paralegals of the Dayton and West Chester offices of Freund, Freeze and Arnold have adopted this adage through their work with the Secure Transition and Reentry (START) Program. The START program was established in 2005 by the Montgomery County Common Pleas Court, General Division and the Greater Dayton Volunteer Lawyers Project, to provide specialized legal assistance, including notary services, as well as educational services to female prisoners at the Montgomery County Jail. This Program has been exclusively staffed, managed, and coordinated by the women attorneys and paralegals at Freund, Freeze and Arnold since 2007. The firm and its participating attorneys and paralegals take great pride in the Program’s success and find working with the female inmates to be personally rewarding. For the past twelve years, a female attorney and paralegal team from Freund, Freeze and Arnold has donated a few hours of their time every other week to visit female inmates at the Montgomery County Jail. There are currently ten women lawyers and seven paralegals who dedicate their time to the success of the START Program. The teams may expect to see anywhere between two and forty female inmates every visit to provide answers to questions and address issues arising from their incarceration, including child custody and health-related issues, among other things. The focus of these meetings is primarily on ways to make re-entry into society easier upon the women’s release from jail. Many women inmates face concerns of having access to basic necessities upon release, including a place to live, a job to provide for themselves and their families, and access to assistance programs available in the Dayton area. These services differ from those provided by the women’s legal counsel assisting in the defense of any criminal matter. Women inmates are not entitled to legal representation on these civil issues, so the START Program provides an invaluable resource. The Freund, Freeze and Arnold female attorney and paralegal

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teams offer knowledge to these female inmates about resources available to them when they are released, including, but not limited to, homeless shelters, crisis counseling, meal sites, medical services, employment services, financial services, and legal services, just to name a few. Knowledge is truly power and START provides women inmates with this knowledge as they are released and work to re-enter society. It is evident from the many years of helping these women that they are very appreciative of the assistance. The probation officers and deputies within the jail also believe the Program has greatly assisted the women. Since 2007, the female lawyer and paralegal teams of Freund, Freeze and Arnold have devoted nearly 900 hours to the female inmates of the Montgomery County Jail. The Program’s success was recognized in 2013 when it received the Ohio State Bar Foundation’s Outstanding Program Award in 2013. The participating lawyers and paralegals take great pride in their work with the START Program. They are hopeful, with every visit, that the contact with these inmates and the assistance provided in linking the women to social services and legal resources will reduce recidivism and improve the lives of the women.

May 2019 Dayton Bar Briefs

109 N. Main St., Suite 600 Dayton, OH 45402â&#x20AC;&#x201C;1129 ADDRESS SERVICE REQUESTED

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