November 2021 Dayton Bar Briefs Magazine by Dayton Bar Association

november 2021

BarBriefs The Off icial Magazine of the DBA

It's here...

On-Demand DBA CLE

TRUSTEE'S MESSAGE DBA Launches Social Justice Initiative pg 6

ON-DEMAND CLE

from the judge's desk

Accessible Whenever, Wherever You Are

A View From the Bench

pg 17

pg 22

BarBriefs DBA Board of Trustees 2021-2022

a*Y*8cGY*&Gd<

First Vice President

The Ring Master of Dayton - Herb Eikenbary By Merle Wilberding Esq. | Coolidge Wall Co., LPA

PRESIDENT'S MESSAGE

edd*{cU**ld

Second Vice President

Bldc)c:*Y&{V*Ic

DBA Launches Social Justice Initiative

By Caroline Gentry Esq. | Porter Wright Morris & Arthur, LLP

TRUSTEE'S MESSAGE

Treasurer

aGC*YIcI*V Secretary

A View From the Bench, October 2021

By The Honorable Steven K. Dankof | Montgomery County Common Pleas Court

JUDGE'S DESK

)ldT%c%*d|l Member–at–Large

Ib*Bc:**

Features:

Member–at–Large

IGd*‹cX*d

Magistrate Jacqueline Gaines, Montgomery County Domestic Relations Court

Playing the Long Game: Web Citations in Legal Filings

While Your Employer Cannot Require You to Recieve the Covid-19 Vaccine, They Can Probably Fire You If You Refuse to Be Vaccinated

ImEmvavP7aBB"BGK"BvKvBDKmD'B"v7NOT Basic Pet Planning is a Valuable Addition to Your Practice

Domestic Violence and the Tragic Realities

BARRISTER OF THE MONTH

Member–at–Large

*d{calbGV Member–at–Large

8*&GXc¥ld<

Immediate Past President

, ex ocio

Bar Counsel

, ex ocio

APPELLATE LAW

By Sarita Simon Esq. | Montgomery County Juvenile Court

By Terry W. Posey Jr., Esq. | Porter Wright Morris & Arthur LLP

EMPLOYMENT By Jason Matthews Esq. | Jason P. Matthews, LLC LAW

ESTATE PLANNING

PARALEGAL

By Laura J. Martin Esq. | Wright & Schulte, LLC

By Sharalie Albanese, Paralegal | The VanNoy Firm

Departments:

11 14

October Section Meeting Schedule & Upcoming DBA Event Calendar 2021 DBA CLE Fall/Winter CLE Planning Guide

Also Inside:

LAW RELATED ORGANIZATIONS ABLE/LAWO/GDVLP pg 25 Dayton Bar Foundation pg 26 Diversity & Inclusion Legal Roundtable pg 27 Greater Dayton Volunteer Lawyer Project pg 28 University of Dayton School of Law pg 29

no.

Contents 4

lYGd*Bc:*dT

I*ddG9*kCT

november 2021

Columns:

President

IlCdac99lYl

vol.

DAYTON Bar Briefs |

SUMMER 2021

MEMBERS ON THE MOVE, CLASSIFIED ADS & ADVERTISER INDEX

2021-2022

DBA Annual Partners PiK"d"BaBB}a7'BaBc"a7m}eeKivaBdeaivBimB"e"BK}i?"mm"KBvK}ivBivB administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.

PLATINUM PARTNER: Coolidge Wall Co., LPA | www.coollaw.com For more than 165 years, Coolidge Wall has had a singular mission – provide trusted and collaborative legal counsel to businesses and individuals throughout the Dayton region – giving our clients the attention, experience and advice needed to help them achieve their goals. Since 1853, we have stayed true to our Dayton roots and strong in our commitment to be the local, full-service law firm your business can count on today and for years to come.

GOLD PARTNERS: FARUKI+ | www.ficlaw.com

Thompson Hine LLP | www.thompsonhine.com

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.

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 Partner, contact: Jennifer Otchy, DBA CEO | jotchy@daybar.org | 937.222.1364

Column

President's Message

The Ring Master of Dayton – HerbEikenbary By Merle Wilberding Esq. Coolidge Wall Co., LPA Wilberding@coollaw.com

Photo credit Getty Images©

DAYTON Bar Briefs |

NOVEMBER 2021

ost of us know the Herbert M. Eikenbary Trust, a fund that grants (up to $4,000) and loans (up to $6,000) to lawyers under the age of 35 who live in or reside in Montgomery County, Ohio. But few of us know Herb Eikenbary, the person. I chose to write about Herb Eikenbary because I want to share some of our past history with our current members. Over the years, the Dayton Bar has been blessed with many great lawyers who dominated the bar, some because of their talent, some because of their oratory, and some because of their magnetic personalities. I think we can learn from all of these great lawyers, and in doing so we can appreciate that we are all part of our Dayton legal history. So, in the coming year I plan to tell another story or two about some of these great lawyers. We should all know more about Herb Eikenbary. As Dave Greer said in his book, Sluff of History’s Boot-Soles, Herb Eikenbary was “the most colorful lawyer in the history of the Dayton Bar,” adding that calling Herb Eikenbary colorful is a bit like calling a Rolls Royce “simple transportation.” I would add that it’s also a bit like calling Secretariat “just a horse.” Herb Eikenbary was so much more. My own introduction to Herb Eikenbary was in July of 1974. After practicing law at a major law firm in Washington, D.C., and after serving at the Pentagon in the U.S. Army, I started my new job at Coolidge Wall on June 25, 1973. A week or so later, my boss, Hugh E. Wall, Jr., the then-president of the Dayton Bar Association, invited me to go to a DBA luncheon. Herb Eikenbary was the speaker. I had no idea who he was. But, proclaiming himself as a selfappointed historian, he spewed out story after story, seemingly speaking in rhymes and riddles. At the time, I thought he was off the rails, far from the Washington lawyers I had been dealing with. I even wondered whether I had gone off the rails as I was trying to find my way in my new community. Yet, all the lawyers in the audience were chuckling and chortling, having the times of their lives. It was only later, as I learned more about Herb Eikenbary, that I began to appreciate the real opportunity that I had just witnessed. I had seen this ringmaster perform in person. Now, I carry that memory with me as a special treasure. Herb Eikenbary was born on March 12, 1902. He became part of the first law school class at the University of Dayton, graduating as valedictorian in 1926; he also received the award for being the best

orator, and was given the parting comment in the yearbook that he had an “inexhaustible supply of wit and humor.” It seems that Herb Eikenbary was magnetic from the start. During his legal career, Herb Eikenbary represented a broad spectrum of criminal defendants, ranging from the Madame of a local bawdy house to a slew of alleged murderers. One of his more famous defendants was Al Fouts, a dapper Dayton bootlegger who had joined up with Bugs Moran (himself an escapee from Al Capone’s St. Valentine’s Day Massacre) in various criminal capers, one of which resulted in a conviction for armed robbery. (Al Fouts was recently memorialized by Dave Greer in his superb 2021 book, primarily about Al Fouts but with a healthy whiff of his defense lawyer, Herb Eikenbary (“The Little Man Who Wasn’t There – In Search of Al Fouts.”) Herb Eikenbary had many talents, including a lot of athletic talents. He played catcher in the annual baseball matches between the lawyers and the doctors. He played football, but his best sport over the years was handball. He was the favorite in both the Dayton City Lawyers League tournament and in the Ohio State YMCA Handball Championship Tournament. Everybody in the Dayton Bar knew Herb Eikenbary. Everybody in the Dayton Bar loved Herb Eikenbary. He loved life. He loved the practice of law. He was always irreverent and

sometimes irrelevant, but always amusing and loving. He had even spoused his wisdom by puttig a big owl on the front porch of his office in an old house in downtown Dayton. On the wall inside his office, he had a certificate preserved in a fancy gold frame. Most people thought it was his law degree or his bar admission or some other noble award. But, when you got closer you would see that it was his vacuum sweeper warranty. Next to that were two framed photos: one of Winston Churchill and one of himself, both wearing the same suit and both engaged in the same pose, for Herb had the girth and the face to look very much like Winston. For added effect, he had an ink-stamp of a claw, and he would often stamp his letters with that icon and sign them, “The Claw.” He traveled extensively, visiting more than 60 countries. In 1939, at the cusp of World War II, he was trying to return to the United States after finishing up his studies at Oxford University. This was a risky proposition because in those days the sea lanes were fraught with U-boats. Yet, Herb was lucky enough to catch a last-minute passage on the French ocean liner, the SS Champlain, by agreeing to bunk with the crew. The ship took the northern route to avoid intervention and Herb arrived safely back in the United States. Years later, he returned to London on July 13, 1951, and made such a splash that his photo on his

three-wheeled motorcycle is still in the Getty photo catalog. (Photo reprinted with permission). Herb Eikenbary passed away on September 20, 1974. He lies in rest at Calvary Cemetery. But his spirit lives on, both with his trust fund for struggling lawyers and with his enduring and colorful career as the Ringmaster of Dayton.

HERBERT M. EIKENBARY

Trust

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

DAYTON Bar Briefs

Column

Trustee's Message

By Caroline H. Gentry Esq. DBA First Vice-President Porter Wright Morris & Arthur, LLP cgentry@porterwright.com

uring the past few years—and particularly after last year’s murder of George Floyd—bar associations across the country have taken steps to further the imperative of racial justice. Last year, the DBA assembled a task force to examine whether and how it should join this trend. After careful review and discussion, the task force recommended the creation of a Social Justice Initiative that addresses all types of social justice issues, including but not limited to racial justice. I am pleased to announce that the DBA Board recently approved this recommendation. We invite and encourage all of our members to participate in this new Initiative. What is social justice? It means equal rights and equitable opportunities for all, regardless of race, gender, ethnicity, national origin, religion, age, sexual orientation, gender identity, disability or socioeconomic status. Proponents of social justice seek to aid those who are underserved, vulnerable, marginalized and/or dispossessed. Social justice issues include civil rights, hunger, safety, poverty, housing, homelessness, education, physical and mental health, environmental concerns, access to justice, and freedom from discrimination and prejudice. Why did the task force recommend the creation of a Social Justice Initiative? We believe that lawyers play an important role in the advancement of social justice in our community. Many DBA members already devote their time and talent to supporting local social justice organizations. We applaud their efforts and believe that the DBA can and should support them. In addition, we believe that the DBA is well-suited to provide leadership on social justice issues. What will the Social Justice Initiative do? Under the able leadership of Bonnie Beaman Rice, who has graciously agreed to serve as its Chair, the Initiative will: (1) promote member involvement in community social justice organizations; (2) fa6

DAYTON Bar Briefs |

NOVEMBER 2021

DBA Launches Social Justice Initiative

cilitate member and/or community conversations about social justice issues; and (3) analyze selected social justice issues and take action to effect meaningful change. Consistent with the spirit of collaboration that we are blessed to witness so often in Dayton, the Initiative will work with other DBA Sections, bar associations, and community organizations to accomplish these goals. Each goal is discussed further below. Goal #1: Promote member involvement in community social justice organizations. The DBA is uniquely situated to serve its members by linking them with community social justice organizations that could benefit from their involvement. The Initiative will create, manage and publicize to DBA members a list of such organizations. We encourage members to recommend organizations for inclusion on this list. To be included, an organization must be non-partisan, promote social justice, and uphold the rule of law. We believe that this list will support DBA members and further social justice in our community by enabling members to identify local organizations to which they would like to donate their time, talent and/or treasure. In addition to maintaining this list, the Initiative will communicate regularly to members about social justice issues, organizations, volunteer opportunities, events and activities. Goal #2: Facilitate conversations about social justice issues. It has become lamentably rare to witness a civil conversation between two people who hold divergent opinions on a particular issue. Fortunately, DBA members know how to have difficult conversations on controversial topics in a manner that is not only civil, but also provides new insights and encourages critical thinking. The DBA is in a unique position

to model these skills to the community and provide leadership on the important issue of civil public discourse, as well as on the underlying issue being discussed. Accordingly, the Initiative will collaborate with members and community organizations, including the University of Dayton School of Law, to discuss selected social justice issues in a structured, civil and productive manner. The audience may be limited to members only or may be open to the public. We envision the use of a variety of formats—including panel discussions before live audiences, webinars, Zoom calls and small group discussions—to conduct these conversations. We encourage members to identify potential social justice topics and volunteer to facilitate or participate in one (or more) of these conversations.

taken to effect meaningful change, and work with community partners to take them. We are very excited to launch the DBA Social Justice Initiative. However, we also know that its success will depend upon YOU and your fellow DBA members. So please consider joining and getting involved in the Initiative. Each of us has a unique perspective to share, insight to provide, service to give, and passion to follow. The mosaic becomes more beautiful with every added piece. Contact Jennifer Otchy (jotchy@daybar.org) today to let her know that you are interested in joining the Initiative. We look forward to seeing you soon!

GEa,D:Afa,&˜exe,ecedaxxVexafdeffc meaningful change. Due to their education, skills and training, lawyers are well-suited to analyze and take action on social justice issues. Therefore, the Initiative’s final goal is to analyze selected social justice issues and take action to effect meaningful change. The Initiative’s leadership and membership will select the issues that they wish to address. Using systemic racism as an example, however, we envision that the Initiative will collaborate with other organizations to analyze the history and existence of racism in our community, identify concrete actions that can be

DBA MEMBERSHIP ADVANTAGES Take advantage of the value of your DBA membership today!

CLE

LAWYER REFERRAL SERVICE

Member 30% discount for live + online CLE. Over 100+ programs per year in various practice areas and trends in the law. New in 2021, Unlimited CLE Membership and On-Demand CLE.

Access to business building LRS to grow your practice. Each year LRS receives more than 12,000 calls requesting a referral to local attorney.

PUBLICATIONS AND COMMUNICATIONS

CAREER AND PRACTICE ADVANCEMENT Access 25 practice area sections, job postings, Young Lawyers Division, Leadership Development Program, DBA Mentor/Mentee programs and more.

COMMUNITY OUTREACH A variety of programs and opportunities designed to assist to the greater Dayton community and fit your schedule and interests.

FASTCASE Unlimited complimentary access to legal research. Webinars and how-to tutorials sent straight to your inbox.

Complimentary with your membership, editions of Dayton Bar Briefs Magazine and the Dayton Legal Directory sent right to your doorstep, archived and accessible 24-7! Access to Online Legal Directory. Legal News sent straight to your inbox via Peek@theWeek.

LIFESTYLE & MEMBER BENEFITS Discounts with local businesses & organizations to save in your personal & professional life.

NETWORKING Unparalleled leadership and networking opportunities through Sections, Divisions and DBA Events.

NOVEMBER 2021 |

DAYTON Bar Briefs

Feature

Barrister of the Month

Magistrate Jacqueline V. Gaines Montgomery County Domestic Relations Court

acqueline Gaines is a magistrate in the Montgomery County Domestic Relations Court. Magistrate Gaines has been a magistrate in that court for ten years. On the bench, she most frequently presides over the following types of cases: 1) temporary orders for pre-divorce decrees; 2) post-divorce decree motions related to child support, spousal support, custody, parenting time, and contempt, 3) domestic violence civil protection orders; 4) divorces by order of reference; 5) review of separation agreements for dissolutions; 6) exclusive occupancy motions and 7) Civil Rule 60 motions by order of reference. Magistrate Gaines received her J.D. from Indiana University, Maurer School of Law, Bloomington, IN. She is currently in active status with the State of Ohio Bar, the U.S. District Court, Southern District of Ohio Bar, the U.S. District Court, Northern District of Ohio Bar and the U.S. District Court, Western District of Missouri. While currently inactive, Magistrate Gaines is also licensed to practice law in state she was born and where many of her family member reside, Missouri. In April 2019, along with a cohort of University of Dayton School of Law alumni and affiliates, Magistrate Gaines was admitted to practice b e f o re t h e U n i t e d States Supreme Court. Magistrate Gaines is also currently teaching virtually Higher Education Law for her alma mater, Indiana University, Maurer School of Law. She grades practice essays and mentor students through the University of Dayton School of Law’s Road to Bar Passage Program. Additionally, in Spring 2021, Magistrate Gaines published “The Legal Quicksand 2+ Parents: The Need for a National Definition of a Legal Parent” in the University of Dayton Law Review. Over the last few years, Magistrate Gaines has noticed some changes regarding the cases before her and in Domestic Relations Court in general. Magistrate Gaines is aware of the rise in Domestic Violence protection orders; currently, each magistrate in Domestic Relations Court has two or three established days where they hear those types of cases. There has additionally been a growth in cases involving the use of interpreters especially ones that speak Spanish, French and Kinyarwanda. Moreover, electronic filing will soon be available in Domestic Relations Court. Before becoming a magistrate, Magistrate Gaines, for six years practiced in the areas of 8

DAYTON Bar Briefs |

NOVEMBER 2021

commercial litigation, employment law, and workers’ compensation law at Faruki PLL and Sebaly Shillito and Dyer. In private practice, she was received the Ohio Rising Star Super Lawyer Recognition in both 2007 and 2009. When asked what skills as a lawyer has helped her most as a magistrate, Magistrate Gaines believes that there are several skills which have helped her. Magistrate Gaines stated that her research skills as a lawyer have greatly benefited her in her current position. Magistrate Gaines also said that having previously been a trial lawyer has helped her in her role as a magistrate because it allowed her to experience what it felt like to

Magistrate Gaines photographed in April 2019 at the U.S. Supreme Court. University of Dayton alumni and affiliates were sworn in as members of the U.S. Supreme Court Bar followed by a private audience with Justice Ruth Bader Ginsburg!

R.L. EMMONS AND ASSOCIATES, INC. represent a client at trial and essentially be on the other side of the bench. As to what skills Magistrate Gaines has that makes her a good magistrate, Magistrate Gaines said that she is laser focused on procedural fairness. Magistrate Gaines believes that it is her duty to make each person appearing before her feel like they are being heard. Magistrate Gaines stated that she believes that it is also necessary for each person to understand the process of why they are before the court. Magistrate Gaines expressed that it is important that as a magistrate you reset mentally after each hearing so each case gets your full undivided attention. For Magistrate Gaines, her ultimate goal is to ensure that in each case before her, she reaches the right result. If that requires additional research, she is more than willing to put in the extra time. When questioned about what advice she has for lawyers appearing before her, Magistrate Gaines gave some valuable insights. Magistrate Gaines expressed that lawyers need to know the local rules, the statutes and applicable case law. Furthermore, lawyers need to be prepared for court. Additionally, lawyers need to be respectful of not only the courtroom process but for the opposing party and opposing counsel as well. Magistrate Gaines has some advice for individuals who are interested in becoming a magistrate. Magistrate Gaines advises that you should get to know the judges and the court that you want to work with. Magistrate Gaines further mentioned that you always want to be professional and come to court prepared while you should also consider being on the court’s appointed counsel list and on their GAL

appointment list if they are applicable to your court. Magistrate Gaines said that when she made the decision to attend law school, she did so because she wanted to affect positive change in the world. While at law school she initially wanted to practice in the area of international law and human rights law. During the course of her time at the Maurer School of Law she participated in their family law clinic. Years later when Judge Mary Donovan mentioned considering becoming a magistrate, Jacqueline applied and was selected as magistrate for the Domestic Relations Court. Once Magistrate Gaines’ orientation was complete, where she learned about how to write decisions and how to control her courtroom, she was ready to affect positive change on the local level. During Magistrate Gaines’ free time, she enjoys spending time with family and friends, traveling, gardening.

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

By Sarita Simon, Staff Attorney CASA Program, Montgomery County Juvenile Court SSimon@mcjcohio.org

NOVEMBER 2021 |

DAYTON Bar Briefs

Feature

By Terry W. Posey Jr., Esq., Chair | Porter Wright Morris & Arthur LLP | TPosey@porterwright.com

Appellate Court Practice

Playing the Long Game: Web Citations in Legal Filings

ave you ever heard of “link rot”? The term is used to describe where a website link used somewhere (on a web page, in an article, or even in a legal filing) is no longer valid. The party seeking more information or to check the quality of the cited reference can no longer access the underlying data. In February 2018 and without announcement, opinions from the Ohio Supreme Court began using the web service perma.cc. At each stage in the opinion or court announcement where the Court includes a link to a website, it now includes a "perma.cc" link. For example, the recent decision in Gabbard v. Madison Local School Dist. Bd. of Edn., 2021-Ohio-2067, ¶ 2, was citing to a CNN article about school shootings. The citation appeared like this: CNN, 10 years. 180 school shootings. 356 victims., https://www.cnn.com/interactive/2019/07/us/ten-years-ofschool-shootings-trnd/#storystart (accessed June 1, 2021) [https://perma.cc/56KH-263L]. So what is perma.cc? According to the website itself (https:// perma.cc/about), it is a "service that helps anyone who needs to cite to the web create links to their references that will never break." The About page notes that 70% of all links citations published in law journals no longer point to the same system and this "undermine[s] the citation-based system of legal scholarship by obscuring the evi10

DAYTON Bar Briefs |

NOVEMBER 2021

dence underlying authors' ideas." The perma.cc link in the Gabbard citation presently contains an identical copy of the page from CNN. It shows the date it was captured, and offers a review in either HTML or as an image screenshot. But if CNN were to remove or eliminate the page, the perma.cc link would remain to show the content. You might be asking yourself "how does this impact me?" Well – in the immediate term, how long do you expect your case to last? If you have multi-year litigation for which pleadings and briefing may be relevant throughout the case, it would be appropriate to evaluate how important the cited content is. If you are relying on web links filed in support of a summary judgment motion, how confident are you that they will still be valid when the case makes its way to the Ohio Supreme Court? Given the rate of "decay" of web content, a (hopefully) permanent archive of the material would benefit the judge or law clerks reviewing your older filings and attempting to use the links within them. If you have ever used the Internet Archive to research how a web page looked in the past, that is because it changed. Because the internet is not referenced in physical books like case reporters, Perma. cc or a service like it would be beneficial to maintaining the accessibility of referenced information in a case or scholarly article that is expected to last.

Upcoming at the DBA For a complete list of CLEs Events & Section Meetings: daybar.org NOVEMBER

2021

Juvenile Law Section Meeting

Young Lawyers Division Section Meeting

29th Annual Bench Bar Conference with Linda Greenhouse

Immigration Law for Non-Immigration Lawyers Seminar

Civil Trial/ADR Section Meeting How "Free" is Free Speech on Social Media? Seminar

10 Appellate Court Practice Section Meeting

Chancery Club Luncheon / 50 year Honoree Celebration Estate Planning Trust & Probate Section Meeting w/optional 1.0 Hr CLE "The Secure Act"

Wills for Vets

Federal Practice Section Meeting

Professionalism Matters Core Components for Successful Law Practice Seminar

Criminal Law Section Meeting

30 DECEMBER

Paralegal Section Meeting Workers' Compensation & Social Security Section Meeting Corporate Counsel Section Meeting Diversity Issues Section Meeting

2021

New Admittee Reception

Judge Steven K. Dankof’s 2021 Criminal Law Update Seminar

Federal Judges Update Seminar

Holiday Luncheon with Chief Justice Algenon L. Marbley

29th Annual Intellectual Property for General & Corporate Practitioners Seminar

DAYTON Bar Briefs

Feature

By Jason P. Matthews Esq., Co-Chair | Jason P. Matthews, LLC | jason@daytonemploymentlawyers.com

Employment Law

While Your Employer Cannot Require You to Recieve the Covid-19 Vaccine, They Can Probably Fire You If You Refuse to Be Vaccinated

mployment lawyers representing employees and employers have been working tirelessly since March 2020, to educate themselves and their clients on the latest developments in the law. From mass layoffs and Pandemic Unemployment Assistance to mask mandates and labor shortages, employment lawyers have been doing the best that they can with few clear answers. The latest employment law development pertains to vaccination mandates. On September 9, 2021, President Biden announced executive orders and new federal rules requiring that all federal government employees and contractors be fully vaccinated against COVID-19 by November 22, 2021, that all employees of healthcare providers receiving Medicare and Medicaid funds be fully vaccinated in accordance with rules promulgated by the Centers for Medicare and Medicaid Services and that all entities with over 100 employees be must require all employees be fully vaccinated against COVID-19 or be subjected 12

DAYTON Bar Briefs |

NOVEMBER 2021

to weekly COVID testing as directed by rules being formulated by the Occupational Safety and Health Administration. Many employees are asking whether they can be required to receive the COVID-19 vaccine. The short answer is “no.” However, under current law an employer can legally terminate an employee who refuses to receive the vaccine, with a few exceptions. Those exceptions consist of employees who cannot be vaccinated due to a disability and/or because of religious reasons and the vaccination requirement would violate the employees’ rights under Ohio Revised Code Section 4112, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the Rehabilitation Act of 1973 or Title VII of the Civil Rights Act of 1964 (Title VII). Additionally, public sector employees have protections under the Constitution and some private sector employees may have contractual rights. Ohio Revised Code Section 4112 prohibits discrimination on the basis of disability and religion against private and public sector em-

ployees, The ADAAA prohibits discrimination on the basis of disability against private sector and public sector employees, with the exception of employees of the federal government, the Rehabilitation Act prohibits discrimination against federal government employees on the basis of disability and Title VII prohibits discrimination against public and private sector employees on the basis of religion. Under the ADAAA an employee must establish (1) that he or she is a disabled person within the meaning of the Act, (2) that he or she is qualified to perform the essential functions of his or her job with or without reasonable accommodation, and (3) that he or she suffered an adverse employment action because of his or her disability.i The ADAA defines “disability” to include a physical or mental impairment that substantially limits one or more major life activities, including the functions of major bodily systems.ii Employees who have a recognized disability are entitled to a reasonable accommodation which will allow

Wednesday, November 10 | Noon-1:00pm The Old Courthouse

Celebrating Our 50 Year Honorees!

Thomas Baggott

David Grieshop

Gary Gottschlich

Jeffrey Winwood

DBA Members Reserve Your Complimentary Spot Online! daybar.org them to safely perform their job duties and the accommodation does not place an undue hardship on the employer. The reality in applying the disability discrimination laws to the vaccine mandate is that while many employees have medical conditions which can be defined as disabilities under the ADAAA, few have conditions for which they have been advised by healthcare providers not to receive one of the three COVID-19 vaccinations. Title VII broadly defines the term “religion” to mean “all aspects of religious observance and practice, as well as belief.”iii To establish religious discrimination, an employee must show 1) a sincere religious belief in conflict with the vaccine requirement; (2) that he or she informed the employer of the conflict by requesting an accommodation, and (3) that he or she was discharged or disciplined for failing to comply with the vaccination requirement.iv Despite employees having protection against discrimination based on religion, employers have a limited duty to accommodate the religious beliefs and practices of their employees. Employer do not have to offer any accommodation that imposes an “undue hardship” on its business. In the religious discrimination context this means anything more than

a “de minimis cost.” v In addition to protections against discrimination in the workplace, federal, state and municipal government employees have constitutional rights. The constitutionality of the vaccine mandate, for these employees, will likely hinge upon Courts balancing the employee’s liberty and privacy interests in engaging in a chosen profession and his or her own body with the public health need for widespread vaccination. In Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358 (1905), the United States Supreme Court upheld the right of states to compel vaccination as a reasonable exercise of the state’s police power. In Valdez v. Grisham, — F. Supp. 3d —-, 2021 WL 4145746 (D.N.M. 2021), the District Court recently decided the constitutionality of a state law mandating that healthcare workers be vaccinated against COVID-19. The Court applied the standard used in Klaassen v. Trustees of Indiana Univ., 2021 WL 3073926, (N.D. Ind. 2021), finding that while employees may have a right to engage in their chosen professions, governmental infringement on this right will be presumed to be valid so long as it is rationally related to a legitimate state interest.vi In Beckerich v. St. Elizabeth Medical Center, (E.D. KY 2001) --- F.Supp.3d

----2021 WL 4398027, the Court addressing the same issue stated, “If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant – the right to seek other employment.” Undoubtedly, the various components of the vaccine mandates announced on September 9, 2021, will be decided by the Federal Courts of Appeals and likely the United States Supreme Court in the coming months. Employment lawyers can only hope that clear answers from the Courts come sooner rather than later. ENDNOTES: i Beckerich v. St. Elizabeth Medical Center, (E.D. KY 2001) --- F.Supp.3d ----2021 WL 4398027 ii 42 U.S.C. § 12102(2)(A). 42 U.S.C. 2000e-2(i) iii Beckerich v. St. Elizabeth Medical Center, (E.D. KY 2001) --- F.Supp.3d ----2021 WL 4398027 citing Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007) iv Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007). v https://www.lexology.com/library/detail. aspx?g=8f3d8189-3f85-4c83-9e3d-8eb6c25d52b7, Andrew Tauber, Anti-Vaxxers Do Not Have a Constitutional or Statutory Right to Endanger Everyone Else

NOVEMBER 2021 |

DAYTON Bar Briefs

2021 DBA Fall/Winter CLE Planning DBA CLE Planning Guide

Fall 2021 NOVEMBER Sinclair Conference Center

29th Annual DBA Bench Bar Conference

November 5 | 9:00am- 3:30pm 5.0 Gen Hrs Live Webinar

Immigration Law for Non-Immigration

November 8 | 11:00am-1;15pm 2.0 Gen Hrs Live Webinar

How “Free” is Free Speech on Social Media? Ethical Considerations for Lawyers and Their Clients November 9 | 11:00am-1:00pm 2.0 Gen Hrs Live Webinar

Professionalism Matters: Core Components of Attorney Conduct for Successful Law Practice November 16 | Noon-1:00pm 1.5 PC Hr or 1.5 NLT Hr

daybar.org

Immigration Law for Non-Immigration Lawyers Mon. November 8 | 11:00am-1:15pm | 2.0 Gen Hrs Live Webinar Speakers: David Larson and Nikki Lyons, Larson, Lyons & Al-Hamdani Non-immigration lawyers will learn foundational knowledge in immigration law and how it intersects with other areas of the law. Also covered, a comprehensive representation of foreign nationals who may require legal services outside of immigration. While immigration is a very nuanced area of the law, there are many instances where basic, working knowledge of immigration is highly beneficial to foreign national clients.

How "Free" is Free Speeh on Social Media? Ethical Considerations for Lawyers and Their Clients Tues. November 9 | 11:00am-1:00pm | 2.0 Gen Hrs Live Webinar Speakers: Chris Hollon, Faruki PLL; Jason Beehler, Director, Kegler Brown Hill + Ritter With over 4 billion users on social media today, questions about how the First Amendment applies to communicating on social media has become a regular topic in the newsroom and courtroom. Attendees will learn what the First Amendment protects – and doesn’t protect – when it comes to posting and engaging with others on social media. Speakers will reference recent cases that have gone to court about censorship and free speech online and provide information for lawyers on how they can advise clients in social media related lawsuits.

Professionalism Matters: Core Components of Attorney Conduct for Successful Law Practice Tues. November 16 | 9:00am-10:30am | 1.5 PC or NLT Hr Live Webinar Speaker: Professor Denise Platfoot Lacey, UDSL Insightful program for lawyers who are new to the profession or those seeking a update.

DAYTON Bar Briefs |

NOVEMBER 2021

Thank You 2021 29thAnnual DBA Bench Bar Speakers, Co-Chairs & Sponsors! PLENARYSESSIONN: LindaGreenhouse

JusticeontheBrink

Yale Law School Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court

PLENARYSESSION:

HousingSegregationinDayton

Matthew Currie ABLE, Housing and Community Economic Development Professor Leslie Picca Professor of Sociology University of Dayton Montgomery County Recorder Brandon McClain Dean Andrew Strauss, University of Dayton School of Law CasE,afeGefs&ExgN Porter Wright Morris & Arthur, LLP

OUC BREAKOU T SEST SIONS

Municipal Court Judge Robert W. Rettich III., Judge Ronald Lewis and Judge Mia Wortham Spells

Common Pleas Civil and Criminal Judge Richard Skelton, Judge Susan Solle and Judge Timothy O’Connell

Mediation Mark Shaver Greene Cty Civil Mediation Program and EsafMEEse Green & Green, Lawyers

Juvenile Court Judge Helen Wallace

Probate Court Judge David Brannon United States District Court Civil and Criminal Judge Walter Rice and Judge Michael Newman

Appellate Court Judges of the 2nd District Court of Appeals Domestic Relations Judge Timothy Wood

DBA President, Merle Wilberding Coolidge Wall Co., LPA Bench Bar Co-Chair CasE,afeGefs&ExgN Bench Bar Co-ChairDafae,Gefs&ExgN

Porter Wright Morris & Arthur, LLP Coolidge Wall Co., LPA

Bench Bar Co-Chair Judge Gerald Parker Montgomery County Common Pleas Court

The DBA would also like to recognize the generous support of TBeExabsEEECBasaab,eTsVxad5afaxesedb&PEsesWsaMEssa B x&AsBVs,LLP

SUPREME SPONSOR:

DISTRICT SPONSORS: Daily Court Reporter The Disability Foundation NFP Insurance

*Formerly Rogers McNay Insurance Co.

NOVEMBER 2021 |

DAYTON Bar Briefs

2021 DBA Fall/Winter CLE Planning DBA CLE Planning Guide

Winter 2021 DECEMBER

2021 Ohio Supreme Court Review: A Conversation with Chief Justice Maureen O'Connor Thurs. December 2 | Noon-1:00pm | 1.0 Gen Hr | Live Webinar

The Ethical Lawyer: Professionalism Standards for Practicing Law Today Fri. December 3 | 9:00-12:15pm | 3.0 PC Hrs | Speaker: John M. Ruffolo, Ruffolo Stone & Stone

Judge Steven K. Dankof’s 2021 Criminal Law Update Seminar Tues. December 7 | 9:00-12:15pm | 3.0 Gen Hrs A discussion of the year’s cases of note from the U.S. Supreme Court, the Ohio Supreme Court and various appellate courts throughout Ohio impacting day-to-day criminal law practice in Ohio.

Federal Practice Update with the Judges Thurs. December 9 | 9:00-12:15pm | 3.0 Gen Hrs Speakers: U.S. District Court, Southern District of Ohio: Judge Michael J. Newman; Judge Walter H. Rice Judge Thomas M. Rose and Caroline H. Gentry Esq. Porter Wright Morris & Arthur A roundtable discussion on Federal Court Issues & Developments followed by an Panel Discussion:

The Effect of COVID-19 On Due Process and concluding with a Sixth Circuit Case Law Round-Up.

Mental Health, Ethics, and Lawyer Well-Being in the Wake of the Pandemic Fri. December 10 | 11:00am-1:00pm | 2.0 PC Hrs | Live Webinar With the intense demands and stress from a legal career, lawyers have always been susceptible to higher rates of depression, addiction, and suicide compared to the general population. This program will provide tips and insight into how to best cope with these issues while working in the legal profession.

Intellectual Property for General & Corporate Practitioners 29th Annual

Fri. December 17 | 9:00-12:15pm | 1.0 PC Hr + 2.0 Gen Hrs | DBA Offices Speakers: Matthew R. Jenkins, Jacox Meckstroth & Jenkins; Ted Lienesch, Thompson Hine An important primer for General and Corporate Practitioners. Topics covered include: Trademarks and Domain Names; Trade Secrets; Patents; Copyrights; and IP from a Litigators Point of View.

DAYTON Bar Briefs |

NOVEMBER 2021

Check DBA website for additional programs!

NEW Programs Added! On-Demand DBA CLE You can now access on-demand, self-study CLE on the DBA website! Get your CLE credit by the first of the year by purchasing and streaming our pre-recorded programs. If you’re an Unlimited CLE Member, you can access all our on-demand content for FREE!

On-Demand DBA CLE

On-Demand DBA CLE Featured Programs: Pandemic Technology for the Legal Practice

Back to the Future Its Never Too Late To Go Paperless

1.25 General Credits

1.0 General Credit

Cross Cultural Lawyering

The Intersection of Ethics and AI

1.5 Professional Conduct Credits

Master Class: National Criminal Defense Bar 2.0 General Credits

1.0 Professional Conduct Credit

The SECURE Act & Estate Planning 1.0 General Credit

New Programs Added Daily! Access the new On-Demand DBA CLE library, available online 24-7, 365! (937) 222-7902

daybar.org/seminarweb NOVEMBER 2021 |

DAYTON Bar Briefs

Feature

Estate Planning Trust & Probate Law

Is Estate Planning "Going to the Dogs"? Definitely NOT! Basic Pet Planning is a Valuable Addition to Your Practice

ow many of you routinely ask your estate planning clients about their pets? Earlier in my practice, I was reluctant to talk about pets unless a client brought it up first. I was afraid of looking like one of “those animal people” (you know the ones!). I always knew I wanted pet planning to be a core component of my estate planning practice, I just didn’t know how to get there. The truth is, it isn’t all that difficult – you just have to ask. Now, “Do you have any pets?” is one of my standard estate planning questions. Pet planning is sometimes considered non-traditional, a very specific niche, and maybe even a little odd. Many attorneys and the general public are turned off by the grandiosity and media hype that surrounds every report of a celebrity leaving a beloved pet millions of dollars and perhaps a mansion or two. But we should not allow any distaste we may feel for those extreme cases to prevent us from meeting the more basic needs of our non-celebrity clients. This is a problem that we should all care deeply about solving. I have seen firsthand what can happen to animals when no planning is undertaken. Pets may be left in a residence for days or longer without food, water or care. I have entered homes after the owner has passed and found animals emaciated and suffering from untreated medical conditions. On more than one occasion, I have even removed the decaying bodies of the animals that didn’t survive. In other cases, a much-loved pet has been turned out into the streets, taken to a kill shelter, or euthanized before a caring family member or friend could arrive to help. If you don’t personally care about animals or their fates, how about property or money? Animals left abandoned and uncared for in a home or apartment make a heck of a mess that has to be cleaned up and paid

DAYTON Bar Briefs |

NOVEMBER 2021

for. Damage to the property may be extensive and this also has to be repaired and paid for. Furthermore, abandoned animals that require medical attention or boarding until suitable placements can be arranged may tally huge bills that deplete estate finances unnecessarily. Most importantly, we should care about the fate of our clients’ pets because our clients do. The majority of your clients probably have pets. 62.4% of Ohio households own at least one pet.1 Eighty percent of those pet owners view their pets as members of the family.2 Although clients may consider their pets family, animals are considered personal property under the law.3 Clients need our help to understand what this means and plan accordingly. Be proactive – don’t expect that clients will bring up pet planning on their own if they are interested. In my experience, most owners have little understanding of how the law views and will treat their animals in the event of the owner’s death or severe disability. When I ask clients about any pets, I commonly receive surprised and apologetic responses because the client “forgot about the dog”. Often, I later receive thank-you notes from these same clients because I “remembered the dog.” Even clients who are somewhat aware of the need for pet planning may be reluctant to bring it up first (they don’t want to look like “those animal people” either!). ENDNOTES: American Veterinary Medical Association 2017-2018 Pet Ownership & Demographic Study (the most recent available data from the AVMA). 2 American Veterinary Medical Association 2017-2018 Pet Ownership & Demographic Study. 3 For example, see Ohio Revised Code §955.03 governing dogs. 1

When preparing estate planning documents for an animal owner, I recommend planning for, (1) the client’s temporary absence or inability to care for the pet due to health or otherwise, (2) the client’s permanent absence, death or permanent inability to care for the pet, and (3) any assistance the client may need from another to continue caring for the pet. It is important to caution clients against the assumption that “someone” will take care of the animals. Fortunately, caring family members, friends or neighbors are often available. But far too often these “someone” are nonexistent, elusive, or put their own selfish interests first. Actual cases in point: the son who dumped mom’s dog by the side of the road so he wouldn’t have to care for it after she passed, and the daughter who euthanized dad’s dog while he was in the hospital so her inheritance wouldn’t be further depleted by dad spending money on the dog. Don’t take a chance – lay out a thorough plan and be specific. How specific and complex the pet planning needs to be depends (like all estate planning) on the specific objectives and needs of the client. There is no onesize-fits-all approach that will work for all clients. Moreover, although we may have lots of valuable advice to offer and planning options to suggest, it is always the client who determines the scope and scale of their own plan. The most complex pet planning will involve a pet trust. Unfortunately, we don’t have space in this introductory article to delve into all of the nuances of pet trusts. Briefly, a trust to provide for the care of an animal4 may be appropriate whenever a client wants to maintain some control over the placement and care of a pet and the funds set aside for such purposes rather than trusting someone else to care and provide for the pet indefinitely. Aside from pet trusts, we have several less complex planning options available using the basic estate planning documents most of our clients already utilize. See left column for Last Will and Testament and Powers of Attorney details. Some clients may also want their pet to accompany them if they need future nursing home or assisted living placement. The client’s preference for a facility that allows pets can be stated in both a durable general power of attorney and a health care power of attorney. If you are not doing so already, hopefully this brief overview will help you feel more comfortable and confident asking your estate planning clients, “Do you have any pets?”. Don’t be afraid – in all the times I have asked this question, I have only twice been scoffed at or admonished by a client who thought my question was ridiculous. Far from being ridiculous, pet planning serves both the needs and objectives of our clients and can be a valuable addition to any estate planning practice.

By Laura J. Martin Esq. Wright & Schulte, LLC lauramartin@ohiolegalplanning.com

Last Will and Testament: If you are not creating a pet trust, planning for what happens to the animals when a client passes away will involve a Last Will and Testament. Here are some of the follow-up questions I ask pet-owning clients and the issues they may want to provide for in their Wills:

(1) Who will receive the bequest of the pet? Try to name one or more alternates in case the client’s first choice is unable to assume the responsibility.

(2) If a specific bequest of the pet is not made, or if none of the named beneficiaries can accept the pet, who will make decisions regarding the animal’s permanent placement? The decision-maker could be the Executor,

or the Executor may be required to consult with or defer to a third party.

(3) What happens if a suitable permanent home for the pet cannot be found? May the pet be surrendered to a rescue organization or no-kill shelter, or euthanized?

(4) Under what other circumstance may or should a pet be euthanized? (5) What about the pet’s crates, cages, carriers, beds, cat trees, toys, grooming equipment, food dishes, leashes, etc. – will these items go with the pet?

(6) Will the new pet owner also receive a bequest of money to help pay for the animal’s care or as a stipend? If so, how much? This may be a specific dollar amount, could involve a computation formula based on the pets age or cost of care, or could be determined by the Executor.

(7) Do the terms apply to only certain pets or to any animals the client may own at time of death (or a combination of both)?

(8) The Executor may need the authority to arrange and pay for temporary placement or boarding, veterinary treatment, and other care until a pet can be transferred to its new owner. The Executor may also need the authority to arrange and pay for the transport of the pet to the new owner.

(9) I also generally recommend that all costs incurred following the owner’s death for the animal’s care, placement and transfer be paid as costs of administration.

Powers of Attorney: If you are not creating a pet trust, planning for what happens to the animals when a client is still alive but temporarily or permanently unable to care the animals, or when the client needs some assistance to care for the animal, will involve a power of attorney. If the same person will be making decisions for the client and the pet, these provisions can be included in a durable general power of attorney. Otherwise, a separate limited power of attorney can be prepared to specifically govern care and placement of the pet. Possible agent authorities you may want to discuss with your pet-owning clients and provide for in their powers of attorney include:

(1) The authority to determine and provide for the maintenance, care, veterinary

treatment, grooming, training, behavioral intervention and transport of the pet.

(2) The authority to determine and provide for the temporary placement, boarding or

in-home care of the pet during any period of time the client is temporarily unable to care for the pet. The client may name specific persons, boarding kennels, or caretakers to provide such temporary services. The agent may also be authorized to enter into a written agreement for the care of the animals.

(3) The authority to permanently place the pet with another and transfer ownership if

the client is permanently unable to care for the pet. These provisions will probably look very similar to the terms of the client’s Will. Be very specific about what circumstances trigger the agent’s authority to permanently place a pet with another owner. Most clients want these authorities and terms triggered only in the event that they are permanently unable or unwilling to care for the pet, or are unable to do so for some stated, lengthy period of time. No one wants to discover that their “trusted” agent rehomed or euthanized a beloved pet in their temporary absence for hospitalization or rehab.

(4) The authority to request or authorize euthanasia of the pet if necessary due to the animal’s health, physical condition, age, injury, severe behavioral issues, or lack of suitable permanent placement.

(5) The authority to spend the client’s income and/or assets for these purposes. If ENDNOTES: 4

Authorized under Section 5804.08 of the Ohio Revised Code.

using a limited power of attorney to provide for the care of animals, be sure that the agent will have access to funds to care for the animal if needed.

NOVEMBER 2021 |

DAYTON Bar Briefs

Feature

By Sharalie Albanese, Paralegal Chair | The VanNoy Firm | sharalie.albanese@yahoo.com

Paralegal

Domestic Violence and the Tragic Realities

ecent events have reminded us that domestic violence is a real danger that does exist in our society. Gabby Petito, found dead, was involved in a volatile relationship with her fiancée. The specific events that caused her death are still unknown, but it is apparent that she was in an abusive relationship that quite possibly resulted in her death. She is not alone. She neither was the first nor will she be the last, unfortunately, to succumb to such a fate. Pursuant to the Domestic Violence statute, R.C. 2919.25, domestic violence is the intent to physically harm, which is a first-degree misdemeanor for the first offense.1 The court has discretion to sentence the offender to anger management or another appropriate program in an attempt to end the abusive behavior. In addition, a protection order may be imposed upon victim’s motion.2 However, “the criminal protection order will expire when the case is resolved or dismissed.”3 There is no mandatory prison sentence. The second offense is a felony in the fourth degree, which carries a sixmonth prison term.4 The third offense is a third-degree felony carrying a penalty of six months in prison5 or “nine, twelve, eighteen, twenty-four, thirty, or thirty-six months” in prison.6 The judgments made upon the first incident could well have lasting and harmful consequences. However, the consequences for clear domestic violence incidents can be interpreted as weak. Especially when such violence is particularly serious or involves an unborn child. If the offender knowingly harms a pregnant family or household member the statute mandates a twelve-month prison sentence for having “caused serious physical harm to the pregnant woman's unborn or caused the termination of the pregnant woman's pregnancy.”7 The statute alone seems insufficient for such a crime. Voluntary manslaughter charges may be brought against the offender, pursuant to R.C. 2903.03(A), for the “unlawful termination of another’s pregnancy.” Such charges, however, are at the discretion of the judge. In weighing charges, the judge must consider the best interest of the victim, even while denying the victim’s pleas for leniency induced by fear and emotional attachment. 20

DAYTON Bar Briefs |

NOVEMBER 2021

Fear and hopelessness often cloud the victim’s judgment causing them to make excuses and abstain from calling the police. In the event they do call the police, many are overcome with fear and refuse to cooperate with prosecutors. Therefore, in considering such realities, one could make the ENDNOTES: R.C. 2919.25(A); (B) and (D)(2) R. C. 2919.26 Motion for and hearing on protection order 3 “Domestic Violence Is A Crime in Ohio Information to Help Plan for Your Safety” https://www.mcohio.org/DV_Victim_Resource_Information_Sheet_2017.pdf 4 R.C. 2919.25(D)(3) 5 R.C. 2919.25(D)(6)(d) 6 R.C. 2929.14 (A)(3)(b) 7 R.C. 2919.25(D)(6)(c) 1 2

argument that weak laws, ironically, are designed to help the victim by offering them an opportunity to understand the reality of their situation and open doors to help them gain self-sufficiency.8 Unfortunately, often this is not the case as victim’s fear of retribution, their fear of loss of income and their emotional attachment to the offender induce their refusal to cooperate and cause them to shy away from any suggestion of pursuing services that would enable their escape. Domestic violence is not one size fits all. To be effective our law enforcement officers must be allowed to use discretion and common sense. When a situation is deemed as true domestic violence, legal professionals need to evaluate the specific dangers of each situation and impose penalties that will protect the victim, whether first or fourth offense. Employing the spirit of the law allows evaluation of the distinct nature of each situation while applying the letter of the law offers structure to such evaluation. By doing so, we recognize domestic violence is not a general problem, but unique to each circumstance and unique to each offender and their victim. It is with heavy hearts that we contemplate Gabby Petito’s last moments on this earth. Her fate reminds us all of the unfortunate and tragic reality of domestic violence. ENDNOTES: 8

https://www.mcohio.org/departments/human_services_planning_and_development/ domestic_violence.php

NOVEMBER 2021 |

DAYTON Bar Briefs

Column

From the Judges Desk

A View From the Bench By The Honorable Steven K. Dankof Montgomery County Common Pleas Court Steven.Dankof@montcourt.oh.gov

uring my so-called career as a trial lawyer, I concluded that there was nothing more instrumental to genuine justice in a courtroom than a good trial judge. And nothing more detrimental to the same cause than a bad trial judge. Thus I turn to a subject that drives and vexes me: the complicity of judges in America’s Criminal Injustice System, or the “Punishment Bureaucracy”.1 Slowly, but inexorably, Americans are realizing that the Punishment Bureaucracy needs reforming. And not just a little. Isn’t it obvious that the Courts, rather than advancing social justice, have steadfastly served as the greatest bulwark of social and racial injustice? When my friend Dave Greer recommended Cal Berkeley Law Professor Erwin Chemerinsky’s new book “Presumed Guilty”, I fired up Amazon and ordered a copy. The book’s Preface says it all: Today in the United States, much attention is focused on the enormous problems of police violence and racism in law enforcement, but too often that attention fails to place the blame where much of it belongs: on the Supreme Court…throughout American history, the Court has done … a poor job of enforcing [Constitutional provisions intended by the Framers] to … protect the rights of us all, including those who are suspected and accused of crimes… consistently empower[ing] the racialized policing that especially harms people of color… gutt[ing] remedies that Americans might use to challenge police misconduct.2 As a judge, do I feign surprise? Hardly. Because American Courts haven’t been interested in providing actual, authentic, real due process, but rather merely assuring the appearance of fairness that will pass muster in appellate courts, so as not to threaten the Punishment Bureaucracy and its stakeholders3. The complicity of American Courts, which is to say judges, is understandable on the level of raw political power. It is, after all, entirely acceptable for a county prosecutor to endorse a particular judicial candidate as a sufficiently “law and order crime fighter”, but no judge can endorse much less criticize the same county prosecutor – such actions being expressly proscribed as unethical.4 The “justification” for this political imbalance? Instilling public confidence in the judiciary, thus ensuring its independence. Seriously? 22

DAYTON Bar Briefs |

NOVEMBER 2021

In June, 2019, I attended a National Judicial College (NJC) Evidence Seminar in Bar Harbor.5 At the time, I was in the midst of my Human Memory Trilogy tussle in the 2nd District in which the Innocence Project came to the defense of my practice of instructing juries that human memory doesn’t work like a tape recorder, but rather is an adaptive process, susceptible to the vagaries of recall and distortion. Why do I give juries “human memory” instructions?6 Because misconceptions regarding human memory are but one of many factors leading to wrongful convictions.7 And so, at Bar Harbor, NJC Faculty member Judge Edward Wahl of Minnesota kindly afforded me five minutes to speak to the attendees about the unrelenting phenomenon of wrongful convictions including some salient statistics: Of the first 365 definitive DNA exonerations: 28% involved defendants falsely confessing to a crime they did not commit; 2) 69% involved our old friend, eyewitness misidentification including cross-racial misidentification8 and use of composite sketches; 3) 44% involved “junk” forensic science evidence such as bite marks, full room arson involvement, etc.9; 4) 17% involved the use of informants; 5) 62% of the exonerated were African American and 7% Latinx – thus nearly 70% of the exonerated were people of color, likely convicted by predominantly white jurors.10 ENDNOTES: So dubbed by Alec Karakatsanis in his fine book “Usual Cruelty”. Mr. Karakatsanis has helped me with my Cashless Bail Pilot Program. 2 Emphasis added. 3 Myrmidons”, as my friend Magistrate Slyman dubs them. 4 By the Code of Judicial Conduct. 5 My wife assured me that Bar Harbor was quite lovely. I wouldn’t know – since each day I attended the conference from 0800-1700 hrs. Sigh… 6 Especially since, to my knowledge, none of my colleagues similarly instruct juries. 7 A trial judge’s contribution to a wrongful conviction should haunt that judge unto the grave. 8 And doesn’t this implicate the need to instruct jurors on cross-racial misidentification? 9 Despite the 2016 PCAST (President’s Council of Advisors on Science and Technology) Report, virtually unknown to most trial judges. 10 Source: Mark Godsey’s book: “Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions”. 1

And whose fault, exactly, was it that the tainted evidence contributing to these wrongful convictions went to the jury in the first place? That’s right, the trial judge. This past weekend, Judge Wahl wrote to advise that at NJC Evidence Seminars he now lectures on the subject of wrongful convictions and the junk forensic science and evidence mis-practices contributing to them! Hope stirs. As I have long implored you, embrace that your work as a lawyer is organically important and fundamental to providing actual, authentic, real due process to the criminal defendants that you represent.11 Understand that your work may well require you to stand up to12 an overbearing13 trial judge or, heaven forbid, an appellate panel, blocking the righteous path to the promised land of genuine justice. Make a record, federalize your constitutional objections so that the Innocence Project can do their exoneration work, unfettered by the appellate artifices of “harmless error” and “waiver”. Quit “making nice” with the prosecutor or the trial judge, to simply “get along”. Have the temerity to ask the trial judge for money to retain necessary experts on eyewitness testimony, cross-racial mis-identification, junk forensic science, false confession, etc. And plan on attending the DBA’s forthcoming seminar: What It Means to be a Criminal Defense Lawyer14 In short, do your job, be proud of your role, and embrace that planting a little seed, as I did in Bar Harbor, might just sprout a mighty oak one day. Trial judges need your help. We really do. Faced with that overbearing trial judge, make your record for appeal and any necessary grievance for the rude, unprofessional conduct directed at you, merely because you had the resolve to stand up for your client. In short, remind us trial judges that we cannot be merely an auxiliary wing of the Executive Branch, which is to say a member of the Long Blue Line or yet another prosecutor in the room. I hope to see you at our Seminar.

DBA Recent Events Join us for what's next at daybar.org July 14

Board of Trustees Annual Retreat @Coco's Bistro

September 21

DBA Diversity Section Tours "Redlining Exhibit" @Dayton Metro Library

September 28

Carl D. Kessler Inn of Court "Reopening After Covid" @Sinclair Conference Center

October 4 ENDNOTES: And your civil clients. Albeit it politely, professionally. 13 Or downright rude and obnoxious. 14 At which Professor Godsey, Rachel Troutman, Hancock County Common Pleas Judge Reggie Routson (dean of CLE for Ohio’s Common Pleas Judges), Judge Gerald Parker and I will educate and entertain you. 11

First Monday in October Celebration w/Merle Wilberding, Judge Jeffrey Sutton and Dean Andrew Strauss @UDSL

NOVEMBER 2021 |

DAYTON Bar Briefs

Save the Date!

DAYTON Bar Briefs |

NOVEMBER 2021

Law Related Organizations

ABLE/LAWO and GDVLP

Giving Thanks For Your Support

s we celebrate Thanksgiving and goodwill this month, our legal organizations are grateful for your support over the years. Your generosity will contribute to a successful close to the 2021 Campaign for Equal Justice. With a $200,000 goal, funds raised will be used to provide civil legal services to help people overcome the challenges of poverty. Special thanks to law firms, individuals and organizations that participated in the Access to Justice Awards Celebration! and Justice on Tap! Proceeds from the events count toward the campaign that benefits Advocates for Basic Legal Equality, Inc. (ABLE), Legal Aid of Western Ohio, Inc. (LAWO), and the Greater Dayton Volunteer Lawyers Project (GDVLP). “We are so grateful to those who have dedicated their time, effort, and support this year to benefit ABLE, LAWO, and GDVLP,” says Glen McMurry, partner at Taft Dayton, who is campaign cochair along with Mary Lentz of Foos & Lentz, LLP. “You are truly making a difference and deserve to be recognized for your part in enabling access to justice within our community. “Special thanks to our Access to Justice Award recipients who have gone above and beyond to demonstrate an outstanding commitment to volunteer legal services in Dayton,” McMurry says. “It is an honor to work alongside such exceptional talent to serve those in need. For those curious about how they can contribute to this campaign, please know that there is still time to give in a variety of ways. More information may be found at campaign4equaljustice.org.” The campaign raised $81,754 by October 7, needing $118,246 more to reach goal. Your contributions will help to make a difference in the lives of more than 4,000 people who are served by the GDVLP, LAWO and ABLE during a year. Your donations are used to help people like Diane and her teenage son who avoided an eviction after she was laid off and fell behind on her rent. John would have been bedridden without the aid of an attorney who appealed and won a decision to provide a special wheelchair that enabled him to be mobile while experiencing a neurological dis order. It will help people like Ann, a grandmother

who took in her granddaughter after her daughter became unpredictable and unable to care for her due to an opioid addiction. The need is far greater than the number of people that LAWO, ABLE and the GDVLP can serve with limited funding. Events such as the Access to Justice Awards Celebration! and Justice on Tap! allow the legal services organizations to raise funds while sharing information about their accomplishments and recognizing other individuals and organizations in the community who have provided outstanding assistance to low-income people in our community.

“It is endearing to see our legal community not only support the idea that access to justice is fundamental, but also contribute to further the incredible work that LAWO/ABLE do to protect that access,” says Shannon Bockelman of Freund Freeze & Arnold. She and Christopher Hollon of Faruki PLL are the Access to Justice Awards Celebration! co-chairs. “We are thrilled to join together as a community to honor those who work tirelessly to improve the lives of our most vulnerable neighbors,” Hollon says. Three honorees were recognized at the Access to Justice Awards Celebration! that was held on November 4, at Sinclair Community College. Robert “Buzz” Portune, a founder of Gottschlich & Portune, LLP that has become Foos & Lentz, LLP, was acknowledged with the Lloyd O’Hara Public Interest Law Award for extensive assistance that he provides to immigrants through Catholic Social Services of the Miami Valley. The Westminster Presbyterian Church ID Ministry received the Patricia Rousseau Community Advocacy Award for helping poor individuals to secure personal identification needed to receive

By Karla Garrett Harshaw MSLD, CFRE Dir. of Development & Communications Ret. ABLE, Inc. kgarrettharshaw@ablelaw.org public benefits, gain employment, and enroll their children in school. Jill Bucaro, a social worker in the Montgomery County Legal Office of the Public Defender, was honored with the Community Impact Award for her extraordinary efforts to advance the department’s holistic approach in assisting low-income people who are accused of crimes, helping them to gain new footing and reduce recidivism. The honorees were nominated by the public. They were chosen by a Selection Committee comprised of the Honorable Susan Solle of Montgomery County Common Pleas Court, Gary LeRoy, M.D., of the Wright State University Boonshoft School of Medicine, David Larson of Larson of Lyons & Al-Hamdani, and Laura Roesch of Catholic Social Services of the Miami Valley. The Honorable Michael Newman, United States District Judge in the Southern District of Ohio, presented the awards during the program. One month earlier, supporters attended Justice on Tap! at The Dublin Pub on October 6. The event, that was organized by the Young Lawyers Division of the Dayton Bar Association, on behalf of ABLE, LAWO, and the GDVLP, raised $13,117. Eighty guests enjoyed a casual social, bid on auction items, and took a chance at winning a 50/50 raffle. “The Justice on Tap! planning team is thankful for everyone who attended the event - either inperson or virtually - and for those who purchased 50/50 raffle tickets, bought silent auction items, and donated through Text-to-Give,” says Lindsey Posey of the Social Security Administration Office of Hearing Operations. “The event was a success due to the collaborative efforts of the entire legal community.” If you have not donated to the Campaign for Equal Justice, there is still time. The campaign continues through the end of the year. You may donate through your cellphone. Text EQUAL to 855-953-3677 and follow prompts. Contributions, including recurring donations, are accepted online at campaign4equaljustice.org. Also, you may mail a check to Campaign for Equal Justice, C/O ABLE and LAWO, 130 W. 2nd St., Ste. 700, Dayton, OH 45402. Your donations will be put to good use.

NOVEMBER 2021 |

DAYTON Bar Briefs

Law Related Organizations

Your Gift Will Help

Dayton Bar Foundation

STRENGTHEN

Our Foundation.

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: - Access for Justice - Advocates For Basic Legal Equality (ABLE) - Catholic Social Services of the Miami Valley - Greater Dayton Volunteer Lawyers Project (GDVLP) - Law & Leadership Institute - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Miami University Center Pre-Law Center - Wills for Heroes

DONATE online: daybar.org/foundation Make a donation now and help us make a difference through our programs. Gifts may also be made in honor or in memory of family, friends or colleagues. For more information about the Dayton Foundation:

Jennifer Otchy, DBF & DBA CEO jotchy@daybar.org | 937-222-7902

= = = = = = = = = = = = = = = == = = = = = = = = = = = = = = = = = =

DETACH AND RET URN

=====================================

To: Dayton Bar Foundation, 600 Performance Place, 109 N. Main St., Dayton OH 45402-1129 I am pleased to support the Dayton Bar Foundation with a gift of:

 $50  $100  $250  $500  Other $________________________________ Method of payment:

 Check Enclosed  Charge my:

Expiration

Check # _________________________________________________________ VISA

MASTERCARD

DISCOVER

AMERICAN EXPRESS

Security Code (3 or 4 digit)

Signature: ___________________________________________________________________________

Name: _____________________________________________ (As you wish it to appear on our records) Firm: ______________________________________________ Address: ___________________________________________ ____________________________________________ Phone: ____________________________________________ Email:_____________________________________________

(AS SHOWN ON CREDIT CARD)

My gift is

 in memory of

 in honor of

_________________________________________________________________________________________________

Please notify: ____________________________________________________________________________________________________________________________________ Address: ________________________________________________________________________________________________________________________________________

DAYTON Bar Briefs |

NOVEMBER 2021

Law Related Organizations

NOVEMBER 2021 |

DAYTON Bar Briefs

Law Related Organizations

Greater Dayton Volunteer Lawyers Project

Profiles of Pro Bono

Ebony D. Davenport University of Dayton School of Law I began volunteering with VLP as a second-year law student. I was looking for an opportunity to give back and to learn more about the various services that VLP offers. Once I graduated and passed the Bar exam, I was formally matched up with a mentor who suggested that we participate in a legal clinic. Kelly eagerly assigned us to handle a divorce clinic and Kathy walked us through every step of the process. I love being able to give back to those in need. VLP fills a necessary void in our community and I have seen the impact of their work first hand. It is incredibly rewarding helping a client resolve an issue and seeing how appreciate they are for the assistance. I also love volunteering because it allows me to keep my practical skills sharp now that I’ve transitioned into academia.

DAYTON Bar Briefs |

NOVEMBER 2021

Law Related Organizations

University of Dayton School of Law

NOVEMBER 2021 |

DAYTON Bar Briefs

DBA Members on the Move & Classified Ads

Members on the Move Guidelines

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! Contact Shayla to submit your announcement or ad: seggleton@daybar.org | 937.222.7902 • News of CLE presentations & political announcements are not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available

T homps on Hine and T a ft La w are partnering with the UniversityofDaytonSchoolofLaw to recruit underrepresented and underserved students to law school and the legal profession. The Flyer Legal Promise Program will provide two students full law school tuition, a $15,000 yearly stipend for living expenses, mentors, summer clerkships and a job at one of the firms following graduation. "We are honored to partner with the University of Dayton School of Law to set a precedent for building more inclusive law firms in Dayton," said Glen McMurry, partner at Taft. "To do that effectively, we need to invest in our region's young talent, nurture their growth, and provide them with opportunities right here in the Gem City. " “Law firms composed of diverse backgrounds and perspectives are undoubtedly able to provide a higher caliber of representation and innovative services to their clients. This initiative is important not only to provide opportunities to diversify the profession but to improve how we serve the region,” said Wray Blattner, partner with Thompson Hine. Contact Julie Zink at jzink1@udayton.edu to be part of the program. Visit https://udayton.co/Svr/ for more info.

DBAC7amm"'dAdm

Classified ads are accepted each month, September through May. The Bar Briefs Editorial Board reserves the right to refuse any ad. Pricing available online. Submit your ad to Shayla Eggleton: seggleton@daybar.org ASSISTANT CITY ATTORNEY I POSTING The City of Dayton is hiring for multiple vacancies in the Department of Law. All positions are classified as an assistant attorney I. An assistant attorney I is expected to provide a variety of legal services as directed on behalf of the Director of Law or Chief Prosecutor. The right applicant is licensed and in good standing in the State of Ohio (or awaiting for bar examination results), interested in criminal or municipal law, works well in a team environment, and is committed to public service. Incumbents are expected to stay informed of municipal, criminal, and any related fields of law and fulfill all Continuing Legal Education (CLE) requirements each year. They are expecting to grow and expand their legal skills and understanding of the City as a whole. Assistant attorney I may perform a secondary role with more difficult legal matters requiring progressive development of trial and advocacy skills. Duties will vary based upon placement in the civil or criminal division. Salary range for this position is $57, 366.00$77,604.00 plus benefit package offered by the City of Dayton. Please apply at www.daytonohio.gov

DAYTON Bar Briefs |

NOVEMBER 2021

LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit Dayton Municipal Court: daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules. MEDIATION/ARBITRATION Dennis J. Langer Retired Common Pleas Judge (937) 367-4776 | LangerMediation.com MEDIATION/ARBITRATION William H. Wolff Jr., LLC Retired Trial and Appellate Judge (937) 293-5295 | (937) 572-3185 judgewolff@woh.rr.com MEDIATIONS Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 | hazlettjeffrey@gmail.com nadn.org/jeffrey-hazlett

OFFICE SHARING SPACE AVAILABLE Large office space in a multiple office suite with a large client waiting area. Located in a large office building on Far Hills Avenue close to Rahn Road in Washington Township. Office building is wellappointed and well maintained both inside and out. If interested, please contact Michael R. Eckhart at (937) 298-6628 or michaelreckhart@yahoo.com

DISPLAYADINDEX: COOLIDGE WALL CO., LPA...................28 Daily Court Reporter.......................7 eikenbary trust...................................5 Ferneding Insurance.........................9 LCNB Bank.................................................21 NFP/Rogers McNay...........................29 OBLIC.......................................back cover R.L. Emmons & Associates...............9

DBA Member Benefit

NOVEMBER 2021 |

DAYTON Bar Briefs

109 N. Main St., Suite 600 Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED

November 2021 Dayton Bar Briefs Magazine

Articles inside

MEMBERS ON THE MOVE, CLASSIFIED ADS & ADVERTISER INDEX

October Section Meeting Schedule & Upcoming DBA Event Calendar