The Magazine of the Dayton Bar Association | September 2020 | Vol. 70, No. 1
Dayton
Bar Briefs
Fred L. Young Esq.
2020-2021 DBA President
President's Message Our Direction is Forward cover story
Barrister of the Month Kay Locke pg 4
Mindful Wellness
Book Review: "The Anxious Lawyer" pg 8
CONTENTS
Dayton
Bar Briefs
September 2020 | Vol. 70, No. 1
Dayton Bar Association Board of Trustees
Features 3 PRESIDENT'S MESSAGE Our Direction is Forward
By Fred L. Young Esq.| Shareholder, Green & Green Lawyers
4
BARRISTER OF THE MONTH: KAY LOCKE
By Ebony D. Davenport Esq. | University of Dayton School of Law
Caroline H. Gentry
6
SPECIAL NEEDS, ESTATE PLANNING & ELDER LAW ISSUES
Denise L. Platfoot Lacey
By Joseph P. Mattera Esq. | Pickrel Schaeffer & Ebeling Co., LPA
Hon. E. Gerald Parker Jr.
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MINDFUL WELLNESS
By Elizabeth D. Wilfong Esq. | Bieser Greer & Landis LLP
2020-2021
Fredric L. Young President
Merle F. Wilberding First Vice President
Second Vice President Secretary
Treasurer
Rebecca M. Gentry Member–at–Large
Anne P. Keeton Member–at–Large
Justine Z. Larsen Member–at–Large
Sean P. McCormick Member–at–Large
STABLE Accounts & Special Needs Trusts
A Book Review: The Anxious Lawyer by Jeena Cho and Karen Gifford
10 A NEW YEAR AHEAD IN CLE By Ashley Likens, DBA CLE Coordinator 14 FROM THE JUDGES DESK Common Pleas Court Adopts New Risk Assessment Tool By The Honorable Timothy N. O'Connell | Montgomery County Common Pleas Court
Hon. Mary Wiseman
Immediate Past President
John M. Ruffolo, ex officio Bar Counsel
Jennifer Otchy, ex officio Chief Executive Officer
The cover photo was captured at Deeds Park by Julie Noeth of WallingPhotography,net BAR BRIEFS is published by the Dayton Bar Association, 109 N. Main St., Ste 600, 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 first day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through Summer. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy, Chief Executive Officer Shayla M. Eggleton, Communications & Design 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 DBA. 2
Dayton Bar Briefs September 2020
Departments 7
FASTCASE - FREE LEGAL RESEARCH
11
CONTINUING LEGAL EDUCATION
12
DIVERSITY WEBINAR SERIES
13 ONLINE CLE - AVAILABLE 24-7, 365! 16
MEMBERS ON THE MOVE
17 CLASSIFIEDS 18
LAW RELATED ORGANIZATIONS
September Section Meeting dates & times All meetings will be held via Zoom unless stated otherwise. Visit daybar.org for more details. Sept 9 @ Noon Sept 2 @ Noon Young Lawyers Division Appellate Court + Civil Trial/ADR Practice Sept 2 @4pm Estate Planning, Trust & Probate Law CANCELED Sept 8 @ Noon Labor & Employment
Sept 10 @ Noon Domestic Relations Sept 10 @ Noon Real Property
Sept 14 @ Noon Federal Practice
Sept 18 @ Noon Diversity Issues
Sept 14 @ 4pm Juvenile Law
Sept 24 @ 4:30pm Corporate Counsel
Sept 16 @ Noon Criminal Law Sept 17 @ Noon Workers’ Comp / Social Security
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President's Message
Our Direction is Forward By Fred L. Young Esq. DBA President Shareholder, Green & Green Lawyers
O
n July 1, 2020, I took the reins of the Dayton Bar Association as your President for the 2020-2021 term. My service for our Association has little to do with me. I don’t need the money (which is a good thing, since the position does not pay anything). I am old and do not need the position on my resume. My ego has not asked for it and I have a strong distaste for notoriety. What I do enjoy is serving a strong diverse group of professionals - lawyers, judges, paralegals - in a legal community recognized as one of the country’s most collegial regions for the practice of law. I enjoy working with the amazing team that our Chief Executive Officer, Jennifer Otchy, has around her and our dedicated Board members. The best part of this position is seeing firsthand how those amazing people work together to make our lives better. There are challenges, and they are not going away anytime soon. The DBA staff is due loud and raucous applause for their fantastic efforts in dealing head on with www.daybar.org
those challenges the past several months. But there is more to do, more innovation to pursue, more dedication to task for all of us to ensure the DBA grows in the coming year. I was privileged to be raised by two amazing people, just Mom and Dad to me, but two souls who were well down the path to legendary status in their world even before I came along. They taught me early on that their achievements came not only from success, but moving ahead whether the times were good or bad. Forward was always their direction of choice. Sideways and backwards are never the directions for success. Our own path forward demands that the DBA continue to offer and in fact grow its value to its members. We are a professional association, but I, Jennifer, her team and our Board members know this is a business. And every business that succeeds does so by providing value to its customers. We are developing new and innovative ways to continue to provide and even enhance that
value as we head into this difficult year. But being an Association of professionals, our value thrives on us working together to enhance our profession, our legal community, and ourselves. Our Association thrives on participation, and would easily wither away without it. We need you. We need you to join our Section meetings, easily attended through Zoom. We need you to attend our CLE Zoom webinars. We need you to teach them, too. We need firms to help us actively engage young associates so they understand the long-term benefits they receive from being part of all this. Despite these challenges the DBA points to opportunity as we continue our mission to provide value and access to justice and enhance the legal profession. But we need you like we always have. I’m just the pretty face for the organization and that’s just not going to be enough to keep us moving forward. *Fred's cover photo was captured at Deeds Park by Julie Noeth of WallingPhotography,net September 2020 Dayton Bar Briefs
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Barrister of the Month
Kay Locke
Managing Attorney, Juvenile Division at Montgomery County Public Defender
D
uring his inaugural address, President Franklin D. Roosevelt stated that, “[t]he test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.”1 This month’s feature for Barrister of the Month is a shining example of that progress as evidenced by her almost 25-year-long career serving the most vulnerable among us. Kay Locke is the Managing Attorney for the Juvenile Division at the Montgomery County Public Defender’s Office (“P.D.’s Office”). Kay is a career public servant who has always had a desire to help others. She was raised in a Christian household where her mother instilled in her the importance of being compassionate and kind to others. Her mother exposed her at an early age to the work of individuals like Mahatma Gandhi and Dr. Martin Luther King Jr. Her faith has undoubtedly shaped her general approach to life but has also informed her approach to her career. Kay began working at the P.D.s’ Office in 1996 in the Juvenile Division. The Division was still fairly new and evolving during this time, expanding from handling only delinquency matters to handling abuse, neglect, and dependency cases. She has witnessed first-hand the evolution of the juvenile legal system. In the wake of the Columbine Massacre, many juveniles were facing harsher penalties as there was a growing concern to reduce high crimes involving youth. Although it has been a slow and oftentimes discouraging evolution, Kay noted that there has been, and is continuing to be, tremendous positive change in both Montgomery County’s Juvenile Court and in courts throughout the country that improve outcomes for youth. She recognized early on in her practice the need for a more holistic approach to dealing with the youth. She pestered her boss at the time that the office needed an in-house social worker. Public defenders are often among the first points of contact for indigent folks faced with criminal charges. Although the client may have a pressing, discrete legal matter, they often have a “bouquet” of issues that an attorney is not necessarily equipped to handle. Kay has also seen an evolution in the office culture. As a compassionate person guided by faith, she treats every case with care and works hard to ensure that her clients know that she values them. She has worked to help secure funding for participatory defense programming. This is a community organizing model used by criminal defense agencies across the nation that relies on support from the community to improve outcomes for people facing charges. Kay has worked with members of the faith, educational and social service agencies 4
Dayton Bar Briefs September 2020
to provide support and resources for her clients. She recognizes that there are several factors at play that contribute to children acting out in ways that lead them into the criminal justice system. Many of the clients she serves have a lack of basic resources, have high needs (e.g. mental health, substance abuse) that are not addressed, and untreated trauma. Kay and the team of attorneys in the juvenile division recognizes that “children are children,” and work to connect those children to assist in their release from detention and obtain the best possible outcomes. Given the high demands of the job and the emotional toll this type of work can take, I was curious as to what has kept Kay coming back after all these years. Her commitment to show love, respect and compassion to each of her clients has been a lasting force along with the support of her husband who she affectionately nicknamed her “Little Buddha.” Due to her compassionate nature, Kay has never been able to fully compartmentalize her work life. She cares deeply about the work she does and the clients she serves that it can be emotionally taxing. Her husband, through many tearful discussions, has taught her that she can only do her best and advocate for her clients; the outcome is ultimately out of her hands. But, she says, “wine, friends and lots of laughter” help a lot, too. Kay also practices yoga and meditation to allow her to cope and destress in healthy, constructive ways. She has practiced yoga since middle school and even teaches it at the juvenile detention center (pre-pandemic, of course), to her colleagues at the P.D.s’ Office and has even taught the staff at the Juvenile Court. Through her practice, she has learned that “stress is not accepting what is; I can still fight very hard for a client and accept what is.” Acknowledging these limitations has not stopped her from going the extra mile for her clients. She shows compassion and love to all of her clients and regularly gives them her cell phone number so that she is accessible to them. Establishing relationships with her clients is both challenging and rewarding. Kay shared one of her most recent success stories involving a woman she represented years ago in a child custody case. The client had three children who were in temporary continued on page 5 ENDNOTES: 1 Franklin Delano Roosevelt, Inaugural Address, AMERICAN PRESIDENCY PROJECT (Jan. 20, 1937), hhttp://www.presidency.ucsb.edu/ ws/?pid=15349.
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BARRISTER OF THE MONTH: KAY LOCKE continued from page 4 custody with Child Protective Services and faced an uphill battle to regain custody. Despite the odds, she successfully regained custody of all her children, and called Kay three months ago to invite her to the high school graduation of one and college graduation of another. That passion to serve the person and not just handle the case is widespread throughout the P.D.’s Office. Kay described the P.D.’s Office as a supportive atmosphere that fosters social change and described her colleagues as tenacious, forward-thinking, and brave. The office, which is led by an all-woman management team, encourages community involvement. Not only does the office participate in and facilitate various clinics to help citizens with record expungement and driver’s license reinstatement, but it is active in promoting social justice on a systemic level. Recent posts from the office’s official Facebook page have shown attorneys making posters for protests and demonstrations in the wake of police brutality and other injustices plaguing minority communities.
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R.L. EMMONS AND ASSOCIATES, INC. Kay expressed the need for attorneys to be bold in their representation, which involves speaking on current social issues; these issues impact her clients, so her representation must account for those things. Although she thinks that everyone should intern for the P.D.’s Office (I strongly second that), she indicated that one’s job does not matter: “I think you can experience life to the fullest no matter what you do and help people.” Kay’s career is a testament that zealous advocacy and compassion for one another are not mutually exclusive.
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
By Ebony Davenport Esq. Co-Chair DBA Editorial Board University of Dayton School of Law davenporte1@udayton.edu 937.229.3555
Civil Case Prep General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577
September 2020 Dayton Bar Briefs
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STABLE Accounts and Special Needs Trusts
By Joseph P. Mattera Esq. Pickrel, Schaeffer & Ebeling Co., LPA jmattera@pselaw.com | 937.223.1130
I
n 2014, Congress passed the federal Achieving a Better Life Experience (ABLE) Act. The Act made an ABLE Account possible. An ABLE Account is an investment account that permits qualified persons with disabilities to save and invest money without losing eligibility for certain public benefits. These public benefits are generally needs-based programs such as Medicaid and SSI (Supplemental Security Income). On June 1, 2016, Ohio became the first state to begin an ABLE program. The program is administered by the State of Ohio Treasurer’s Office and became known as the STABLE Account. Prior to the STABLE Account, those with disabilities could save no more than $2,000 before losing needs-based benefits. With a STABLE Account, an individual with disabilities could save and invest (with Vanguard) up to $15,000 per year, $27,490 if the individual works. The money in a STABLE Account must be spent on Qualified Disability Expenses, including: housing, education, healthcare, transportation, basic living expenses, etc. As long as the money in the Account is spent on these expenses, earnings on the Account grow tax-free. The money in a STABLE Account is not considered a resource for Medicaid or SSI purposes; therefore, the STABLE Account will not prevent an individual from pursuing those benefits. An individual is eligible for a STABLE Account if their disability began before the age of 26 and the individual must have lived with the disability for one year or expect the disability to last for at least one year. In addition, the individual must be eligible for SSI or SSDI (Social Security Disability Income which is not a means-tested benefit) or have a condition on the Social Security Administration’s list of allowable conditions or “self-certify” their disability. A STABLE Card, a loadable debit card acceptable wherever VISA is accepted, can be given to the individual with disabilities to be used for Qualified Disability Expenses. There is no cost to open a STABLE Account and can be opened by an individual with disabilities, or an Authorized Legal Representative (ALR) such as a parent, a guardian of the individual, or a designated Power of Attorney.
The maximum that a STABLE Account can hold is $482,000 (similar to a 529 Account). Again, this may affect an individual’s inheritance. Excess contributions to a STABLE Account must be returned to the contributor to avoid a 6% penalty. Individuals who may have these financial issues, should consider establishing a Self-Settled (“First Party”) Special Needs Trust, known as a (d)(4)(A) Trust. Previously, individuals were not permitted to establish such a Trust for themselves; however, such individuals are now permitted to establish such Trusts for themselves. There is no limit as to how much a person can have in this Trust. The money in the Trust is not considered a resource and does not affect the individual’s Medicaid or SSI. As the STABLE Account permits broader payments for expenses, more so than the Trust permits, many people establish the STABLE Account and the Trust simultaneously. Upon the passing of the individual, the money in a STABLE Account and the Special Needs Trust, after certain permitted payments, must be paid to the State under the Medicaid Estate Recovery Program to re-pay the State for the amount of Medicaid benefits received by the individual during their lifetime; however, the STABLE Account is obligated to pay the State for Medicaid benefits paid subsequent to the establishment of the STABLE Account.
The Negative Aspects of a STABLE Account While STABLE Accounts appear to be an excellent resource for someone who is eligible, there are some limitations. If the account exceeds $100,000, the individual’s SSI benefit, but not Medicaid, would be suspended but not terminated until the account is reduced to $100,000. This could affect planning for the individual in case of an inheritance of more than $100,000. 6
Dayton Bar Briefs September 2020
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September 2020 Dayton Bar Briefs
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Mindful Wellness
A Book Review:
The Anxious Lawyer by Jeena Cho and Karen Gifford By Elizabeth D. Wilfong Esq. Bieser Greer & Landis LLP edw@biesergreer.com 937.250.7791
M
editation and mindfulness have become hot topics over the last few decades. Yet some people still seem to turn their nose up at the idea that meditation and mindfulness have a place in their lives. It is certainly no secret that the practice of law is stressful. Add the general stress of the practice to the stress and uncertainty of being in the midst of a global pandemic and it could certainly push people over the edge. No one knows what our future holds and we need to cope with the present-- enter: meditation. The benefits of meditation are multifold, but getting a meditation practice started can be challenging. Maintaining a meditation practice can be even harder (trust me; I have re-started my practice many times over). This is where the book The Anxious Lawyer can help. Written by lawyers for lawyers, it offers a pathway to a meditation practice and gives the reader several different types of meditation to try along the way. Author Jenna Cho is a bankruptcy lawyer in San Francisco, CA with a passion for meditation. Karen Gifford is COO of Ripple Labs and former attorney for the Federal Reserve Bank of New York who also has a passion for meditation. Both authors have experience teaching others to meditate. Their book, The Anxious Lawyer, is set up as an eight-week course with each chapter representing a different week. The first thirty pages offer background information about the authors and some basic ideas surrounding meditation. Each of the following chapters spend several pages digging deeper into meditation as a practice before offering a different type of meditation to focus on for that week. Chapter One introduces the body scan, a meditation practices which focuses attention on different parts of the body. It is typical to start with the feet and work up the body. This type of meditation was my first introduction into meditation some eighteen
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Dayton Bar Briefs September 2020
years ago. Meditation can be easier when the attention is focused, which is the goal of the body scan. I personally find this type of practice more difficult to do without an instructor walking me though the scan. Thankfully, the authors have that covered and a guided body scan is available on their website www.theanxiouslawyer.com. Chapter One asks the reader to practice the body scan every day for seven days. The book provides a log to record your thoughts each day of the week.1 Each chapter also offers an “off the cushion” practice, which challenges the reader to be mindful during normal aspects of their day (riding an elevator, walking to work, showering). It is a nice way to work toward incorporating small moments of mindfulness into your daily life. Chapter Two introduces “Following the Breath” meditation. True to its name, this meditation focuses on your breath. Set a timer and focus on the sensation of your breath as it moves in and out of your body. It is a simple practice but it is high on my list of favorite types of meditation. It gives a mind that easily wanders something simple and constant to focus on. Chapter Three focuses on “Following Your Thoughts,” which is pretty much exactly as it sounds. Follow your thoughts as
they come and go for a specified period. The goal with this practice is not to focus on the content of your thoughts but rather the quality of your thoughts. As the authors instruct, “are your thoughts coming quickly or slowly, do they sound loud or quiet?” This was the first time I had tried a practice like this and I found it rather difficult to focus on my thoughts without focusing on their content.2 Chapter Four introduces loving kindness meditation. Loving kindness meditation focuses on compassion towards yourself and others. It asks the meditator to focus on himself or herself, a friend, a loved one, a stranger, or someone with whom you are having difficulty. The authors point out that lawyers tend to struggle with compassion.
continued on page 9
ENDNOTES: 1 While I write this, I am looking back over the notes I made during the first week. Several days I noted that focusing was difficult! 2 The authors ask if your thoughts feel smooth, gentle or fuzzy, and I just could not wrap my mind around a fuzzy thought. While this practice might work very well for some people, I struggled with it.
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BOOK REVIEW: "THE ANXIOUS LAWYER" continued from page 8
In this practice, you imagine the individual of your choice and repeat, “may you be happy, may you be healthy, may you know peace and joy, may you be free from suffering.” For me, the first few days of this practice felt a little odd. However, as the week went on, I found I enjoyed this one more than most. I have continued to use this practice since my completion of the book. Chapter Five is an extension of Chapter Four with the focus of the compassion being yourself. This chapter offers some good insight on the importance of self-compassion and learning to live with our inner critics. The authors also focus on the importance of rest, which means setting aside some time to be unplugged from work (here is looking at you 11:30 pm email checker!). Chapter Six introduces mantra repetition. In doing mantra meditation, a word or phrase is repeated over and over during your dedicated meditation period. The authors
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suggest using the phrase “let go” in time with your breath. Personally, I found that mantra repetition helps my wandering mind and “let go” was an easy mantra to use. Chapter Seven builds upon the mantra repetition learned in Chapter Six with the addition of a heart-centered focus. The authors are quick to point out that they do not mean your actual heart, but rather the energetic space at the center of your heart. If you practice yoga, this idea will be familiar to you. Chapter Eight focuses on gratitude. The meditation for this week is another mantra repetition, an extension of Chapter Six and Seven. While this week did not introduce a new meditation, it offers in-depth insight into the benefits of gratitude and I think it is one of the more important chapters of the book. Overall, I enjoyed this book. Since both authors are lawyers, this book offered a nice,
focused perspective for those of us in the legal profession. My only criticism is that the chapters, while full of good insight, tended to be long. Some weeks reading the entire chapter felt like a bit of a chore. If a lawyer-focused meditation book is not for you, I’d recommend you try 10% Happier by Dan Harris and the companion how-to book, Meditation for Fidgety Skeptics. So many books on meditation seem unrealistic or aspirational. I have read several and thought, “I am a real person. I can’t do this.” Ten Percent Happier is a down to earth, “if he can do it, I can do it” kind of book. It is a great way to get a meditation practice started. If you are a dedicated meditator, a so-so meditator, or a wannabe meditator and you want to connect, feel free to reach out, I would love to chat. Meditation is a practice, and I am still practicing.
Did You Know?
September 2020 Dayton Bar Briefs
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N ew Y ear A head
in
CLE!
My name is Ashley Likens and I am pleased to announce that I am your new Coordinator of Continuing Legal Education at the Dayton Bar! I am eager to bring you a wide variety of programming and be a helpful resource while making connections within the legal community. I am a 2020 graduate of Capital University Law School but CLE is not new to me. Before law school, I worked at the Columbus Bar Association as CLE Coordinator where we hosted weekly seminars and two each day in December. With CLE Season fast approaching, I would like to hear what programming you would like to see from your membership with the DBA. With CLE currently being offered in interactive webinars online due to COVID, it is a great time for some of you to breakout as instructors without having the pressure of having a live in-person audience. Most of us are new to presenting online, so the expectation of perfect public speaking is minimized. Also, note you can earn double or triple CLE credit if you are presenting. Please reach out to me if this is something that interests you. While I plan to take the bar exam next year, I am confident that you will see fresh new programming and efficiency this year. Thank you to the DBA for giving me this opportunity. Please don't hesitate to contact me at alikens@daybar.org or by phone 937.222.7902. I look forward to meeting you! Regards,
A ll Y ou N eed DBA CLE FAQS @ A GLANCE
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A DBA CLE access pass valid for the duration of your DBA membership year
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Unlimited Hrs: $595
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• General • Professional Conduct • New Lawyer Training
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• General • Professional Conduct • New Lawyer Training (see specific program for details on credit offered)
Call or Email DBA CLE Coordinator Ashley Likens: alikens@daybar.org 10
Dayton Bar Briefs September 2020
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F all C ontinuing L egal E ducation al Virtu y 2-da r! ina Web
DBA Annual
2020 Bench Bar Conference 11.12 2-5pm
*All DBA CLE's will be held via webinar unless stated otherwise below
11.13 9am-Noon
October 2020 Thursday, October 1 | Noon-1pm | CLE#2021014 DBA Diversity Issues Section Presents the Following Series:
September 2020 Thursday, September 3 | Noon-1pm | CLE#2021013 DBA Diversity Issues Section Presents the Following Series:
Did I Say That? Recognizing & Combating Microagressions in the Legal Profession
Sentencing Disparities & Dangerous Perpetuation of Racial Bias
Speaker: Prof. Jelani Jefferson Exum, Detroit Mercy Law 1.0 Prof Conduct Hr Committee M $25 | M $35 | NM $45 | Paralegal $25 | Passport $0 Participants will learn the role that racial disparities - specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger
Speaker: Sheila Eason, Elevate People Solutions, LLC 1.0 Prof Conduct Hr Committee M $25 | M $35 | NM $45 | Paralegal $25 | Passport $0
of living as a Black American in the U.S. The speaker will highlight the manner
This one-hour seminar is focused on bringing awareness of the negative
other criminal justice bias. This form of anti-racism work is essential to full and
impact that subtle or unintentional comments or actions toward members
effective representation of clients.
in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. Ultimately, the goal of the seminar is to provide better understanding of tackling implicit bias as a means to fight sentencing and
of marginalized groups can have on others in the legal profession.
Wednesday, September 16 | Noon -1pm | CLE#2021015 Securities Litigation and Enforcement Overview Speaker(s): Daniel Crump Esq., WilmerHale (Los Angeles) Jessica Lewis Esq., WilmerHale (Boston) 1.0 Geneneral Hr M $35 | NM $45 | Paralegal $25 | Passport $0
Friday, October 9 | 9am-10am | CLE#2021017 O, O, It’s Magic What You Can Do in Office 365: Collection, Litigation Hold and More! Speaker(s): Ray Biederman, Co-Founder & CEO Anthony Cozzi, Project Manager 1.0 General Hr M $35 | NM $45 | Paralegal $25 | Passport $0
Attorneys from WilmerHale Los Angeles & Boston, will provide an overview of securities laws including The Securities Act, The Securities Exchange Act, The Investment Company Act & The Investment Advisors Act, The Model Uniform Securities Act, and Securities and Exchange Commission Regulations. The presenters will also discuss private securities litigation, federal and state regulatory actions and the potential for criminal exposure from violations of securities law.
Tuesday, October 27 | 8:45am-4:30pm | CLE#2021016
Location: Sinclair Community College Pending COVID Restrictions OR Option to View Virtual Via Zoom
2020 Elder Law Institute
Organizer: Michael Millonig, Michael Millonig, LLC Speaker(s): Various 6.0 General Hrs Committee M $150 | M $210 | NM $270 | Paralegal $105 | Passport $0 Various topics: Defining Elder Law; Medicaid for Nursing Home Residents;
Register for These Webinars Online! daybar.org/events/event_list.asp
Countable Resources; Trusts; Gift Transfers; Estate Recovery; America's Generations; COVID-19: Latest Updates, Responses and What Long Term Care Facilities Need to Do; A Practical Perspective on Becoming and Serving as Ohio Online Notary; The Perfect Storm Brewing in Long-Term Care and Planning Strategies for Asset Protection for Clients and Avoiding Estate Recovery Q&A.
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1.0 Prof. Conduct Hr (per webinar)
Sept. 3 & Oct. 1
Zoom
2020 DBA Diversity Issues section presents...
A series on
DIVERSITY Thursday, September 3 & October 1 Noon-1pm | Zoom
October Guest Speaker:
September Guest Speaker:
Prof. Jelani Jefferson Exum
Sheila Eason
Detroit Mercy Law
Elevate People Solutions, LLC
September 3 Agenda:
October 1 Agenda:
Did I Say That? Recognizing & Combating Microagressions in the Legal Profession
Sentencing Disparities & Dangerous Perpetuation of Racial Bias
Speaker: Sheila Eason, Elevate People Solutions, LLC 1.0 Prof Conduct Hr | CLE#2021013 Committee M $25 | M $35 | NM $45 | Paralegal $25 | Passport $0 This seminar is focused on bringing awareness of the negative impact that subtle or unintentional comments or actions toward members of marginalized groups can have on others in the legal profession. Participants will learn: • What microaggressions are and the negative affects they can have on others in the workplace • Examples of different types of micro-aggressive behavior that occur in the legal profession • Basic understanding of why microaggressions are harmful • How to respond to micro-aggressive behavior in a positive and effective manner • There will be a space for people to share experiences as recipients and observers of microaggressions • The workshop includes participant (virtual) exercises
Register! daybar.org/events 937.222.7902 Bar Briefs September DBADayton CLE Coordinator Ashley2020 Likens
12
alikens@daybar.org
Speaker: Professor Jelani Jefferson Exum, Detroit Mercy Law 1.0 Prof Conduct Hr | CLE#2021014 Committee M $25 | M $35 | NM $45 | Paralegal $25 | Passport $0
This seminar, participants will learn about the role that racial disparities— specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. The speaker will highlight the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. Ultimately, the goal of the seminar is for participants to understand that, instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on. This sort of anti-racism work, including the realities of how systemic racism affects individuals every day, is essential to full and effective representation of clients. I. An explanation of Living While Black II. Description of Sentencing Disparities III. Race and Perceptions of Criminal Behavior IV.The Typical View: Bias as the Cause of Sentencing Disparity: The Typical View V. Different View: Bias as the Dangerous Consequence of Disparities VI. Addressing the Disparities to Reduce Bias and the Role of the Attorney
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U pdates
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S elf -S tudy CLE
Choose from Over 50 CLE Programs Available to You Online! Visit daybar.ce21.com and go to the CLE tab to access self-study library
Did you know? Judges, Magistrates and Attorneys with last names M-Z can complete ALL
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Due to COVID-19, the Supreme Court of Ohio has waived the cap on self-study courses, including webinars Please see supremecourt.ohio.gov/AttySvcs/CLE/ for more info
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September 2020 Dayton Bar Briefs
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From the Judges Desk
By The Honorable Timothy N. O'Connell Montgomery County Court of Common Pleas
O
Common Pleas Court Adopts New Risk Assessment Tool
ver the last several years the subject of bail reform has been a frequently debated and discussed topic in Ohio and the Nation. This writer recalls a conference with Chief Justice O’Connor several years ago in which, among other things, she advocated for some form of bail reform by the courts. Generally speaking, the advocates of bail reform have urged the elimination, or substantial reduction, of cash or monetary bonds. In the January – March 2020 edition of the Ohio Lawyer Magazine, representatives of the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorney’s Association submitted articles on the subject of bail reform. This occurred in the context of proposed changes to Rule 46 of the Ohio Rules of Criminal Procedure. The Ohio Association of Criminal Defense Lawyers (“OACDL”) advocated for the provisions that allow pretrial release on condition of expanded participation in alcohol and drug treatment protocols, diversion programs, day reporting and comparable alternatives. From a criminal defense perspective, the proposed changes were supported in that there should be a consideration of the least costly financial condition. Further, OACDL asserts the courts should also consider each defendant’s ability to pay when setting a financial condition of pretrial release. The OACDL was concerned about the amount and type of evidence that might be considered by the court in a Rule 46 hearing. Naturally, the OACDL advocated for a change in wording to prevent the use of evidence derived at a pretrial release hearing in future hearings, i.e. motion to suppress hearing and trials. It should be noted the proposed changes to Rule 46 of the Ohio Rules of Criminal Procedure by the Ohio Supreme Court are designed to improve court appearances and reduce recidivism. There are three standards set forth in the proposal. First, the modifications provide a presumption of a summons or a personal recognizance during pretrial release. Second, the modifications provide that if a financial bond is to be made, the court shall make the bond the least costly to the defendant. Third, the modifications provide that if a person is held in jail, they be 14
Dayton Bar Briefs September 2020
brought before the court within two business days for the purpose of consideration of bond. Some of the circumstances which prompted a ground swell of support for bail reform were that the present system is inconsistent with the presumption of innocence, pretrial detentions are a major destabilizing event for accused persons, and longer pretrial detentions are associated with failure to appear at future hearings1 The Ohio Prosecuting Attorney’s Association (“OPAA”) agrees that a person’s wealth, or lack thereof, should not determine eligibility for pretrial release. The OPAA is concerned that bail reform may lead to a public safety hazard, particularly in domestic violence and felony drug trafficking cases. Prosecutors appear to be concerned, because these are relatively low level felonies, that there would be a tendency to release those accused when there is high likelihood of danger to a victim or the community. The OPAA is concerned with a reliance on a risk assessment tool, more specifically, the ORAS-PAT. They feel the tool would not adequately inform a judge’s decision about the conditions of pretrial release. The OPAA argues a generic risk score cannot replace the individualized assessment of a judge. Finally, the OPAA does not want the algorithms replacing human judgment.2
continued on page 15
ENDNOTES: 1 Christopher T. LowenKamp, Ph.D, Maria VanNostrand, Ph.D and Alexander Holsinger, Ph.D, The Hidden Cost of Pretrial Detention, (Houston, TX: The Laura and John Arnold Foundation, 2013), pg. 3, 4. 2 Balancing Bail Reform: Two Views on Ohio Criminal Rule 46, A Prosecutorial Perspective, by Louis Tobin, Ohio Lawyer Pg. 14, 15 (January – March 2020)
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FROM THE JUDGES DESK: Common Pleas Court Adopts New Risk Assessment Tool continued from page 14
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With those ideas in mind, the Montgomery County Common Pleas Court has been working toward reforming our bail construct. The court examined the Arnold Public Safety Assessment Tool and found it preferable to the ORAS-PAT. On July 27, 2020 the pretrial screening officers of our Case Management Department will utilize the Arnold Safety Assessment as the pretrial risk assessment tool for all bond recommendation reports in Montgomery County. This is done in conjunction with the pretrial screening section of the case management department going to a new offender case management system – the Ohio Community Supervision System. The Arnold Public Safety Assessment (“Arnold PSA”) is a risk assessment tool developed by the Arnold Foundation. It has been adopted by courts around Ohio and is used in place of the ORAS-PAT. The Arnold PSA relies on three key measures in providing a risk assessment score: new violent criminal activity, new criminal activity, and failure to appear. Further, the risk assessment score is based on nine individual factors that help determine a specific supervision strategy for an offender. The nine risk factors are: 1) age at current arrest; 2) current violent offense; 3) pending charge at the time of the offense; 4) prior misdemeanor conviction; 5) prior felony con-
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viction; 6) prior violent conviction; 7) prior failure to appear in the past two years; 8) prior failure to appear older than two years; and 9) prior sentence of incarceration. The Arnold PSA score considerations are: first, new violent criminal activity; second, new criminal activity scale (low 1-6 high); and last, failure to appear scale (low 1-6 high). The judge will receive two files. The first is the public safety assessment report and bond recommendation. It provides the Arnold PSA score based on the three measures and nine factors. The second file is a supplemental information report that contains a listing of the offender’s personal information, criminal history and a summary of the offense(s) charged for an offender arrested on a felony or violent misdemeanor. The judge can also receive a pretrial supervision matrix which sets out the conditions for release that apply relative to the release level. For instance, if the recommended release level is a 2, as set out in the public safety assessment report and bond recommendation, then the conditions for release will include mandatory statutory conditions, court reminders and criminal history checks every month. There are four pretrial release levels. The highest is 4 and the lowest is 1. At the highest level, the accused would have mandatory
statutory conditions, receive court reminders and have criminal history checks every month. The offender would also have to check in twice a month. Other case specific conditions could be added if court ordered. The writer is of the view there is a consensus among Montgomery County Common Pleas Court Judges to, in effect, move to the presumption set forth in the three methods of the proposed change to Rule 46 of the Ohio Rules of Criminal Procedure by the Ohio Supreme Court. The Arnold PSA and the use of the Ohio Community Supervision System should aid in this goal. The judges are certainly mindful of the purposes of Rule 46 to ensure appearances in court and public safety. The judges are not adverse to holding Rule 46 hearings in individual cases to allow prosecutors and defense attorneys to be heard if the advocates believe some modification of the court’s bond decision is needed.
September 2020 Dayton Bar Briefs
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M embers O n T he M ove *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! GREEN
LYNCH
MOORE
Green & Green, Lawyers, LLC, is pleased to announce that Thomas M. Green, Jane M. Lynch and Erin B. Moore were recognized as Ohio Super Lawyers® for 2020. Thomas M. Green has been recognized as an Ohio Super Lawyers® starting in 2009 and practices in the areas of commercial litigation, medical malpractice and complex injury litigation. Jane Lynch has been recognized as an Ohio Super Lawyers® since 2006, and is a AV Preeminent rated attorney by Martindale Hubble; and recognized again as a Best Lawyer in America© 2020, in the areas of Civil Rights Law and Litigation-Insurance. Erin Moore has been recognized as an Ohio Super Lawyers® since 2017 and practices in construction law, governmental liability law, and general insurance defense matters. Green and Green, Lawyers, LLC, was also recognized as a Best Lawyers of America© “Best Law Firm” in 2020.
For more info contact Shelley Edwards, Legal Assistant 937.224.3333 | sedwards@green-law.com
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After an 18-year drought, Roberson Law, a Dayton law firm is a Better Business Bureau (BBB) Eclipse Integrity Award winner! After being a finalist three times over a span of ten years, Roberson Law won the award in the 1-10 businesses category. The award is given every year to one business in each category that exemplifies the highest level of integrity in the marketplace. Winning this award is especially challenging for businesses like law firms that operate in an industry that is not known for showing integrity. Roberson Law does their best to dispel the negative image of lawyers. The road to victory for this award is a rigorous process. The 2020 nominations went out at the beginning of the year, and the businesses that were named as finalists were notified in April. The finalists were put through an intense judging process that required the businesses to put in countless hours to prove that they were worthy of this prestigious award. There was no in person black-tie event this year due to COVID19 restrictions. instead, the BBB had to get creative, so the award was announced “Publishers Clearing House Style.” That method was how Roberson Law found out on July 27th and two-days later they were featured on Living Dayton television. For more info contact Amy Cary 937.643.2000 | acary@dayton-attorney.com
CLOUGH
SCHAEFFER
SCHWELLER
SENNEY
Pickrel Schaeffer & Ebeling Co., LPA is pleased to announce that attorneys Alan B. Schaeffer, Jeffrey S. Senney, John E. Clough, and Donald G. Schweller have been selected by their peers for inclusion into the 2020 edition of The Best Lawyers in America. Alan B. Schaeffer is included in The Best Lawyers in America in the Real Estate Law section. Alan is a shareholder with the firm and concentrates his practice in the areas of construction law, environmental law, land use planning, zoning, real estate law and municipal law. Jeff Senney is a shareholder with PS&E and Executive Vice President. He practices in the firm’s Business Department focusing on Federal and State Taxation, Business and Securities Law. Both John E. Clough and Donald G. Schweller are in the Trusts and Estates section of Best Lawyers in America. John is a Fellow with the American College of Trust and Estate Counsel (ACTEC), a shareholder with the firm and department chair of the Probate and Estate Planning Department of PS&E. Don has been with Pickrel, Schaeffer and Ebeling for 60 years. He is a Fellow of the American College of Trust and Estate Counsel, and member of the Probate Department practicing in the areas of estate planning, trust and probate.
KING
MCCORMICK
RAINES
Thompson Hine LLP is pleased to announce that three of its lawyers in the firm’s Dayton office are recognized in the inaugural edition of Best Lawyers®: Ones to Watch. The Thompson Hine lawyers in the Dayton office included in the 2021 edition are: Jamar T. King – Commercial Litigation, Criminal Defense: White-Collar Sean P. McCormick – Commercial Litigation Rebeccah C. Raines – Corporate Governance and Compliance Law; Mergers and Acquisitions Law For more info contact Ellen Geron, Regional Growth Manager 937.443.6835 | Ellen.Geron@ThompsonHine.com
For more info contact Frank Macharoni 937.223.1130 | fmacharoni@pselaw.com 16
Dayton Bar Briefs September 2020
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ASSOCIATE
LOCAL COURT RULES
MEDIATIONS
Young & Alexander Co., L.P.A., a litigation law firm with offices in Cincinnati and Dayton, has a career opportunity in its downtown Dayton office for a highly motivated associate with zero to three years of experience. The successful candidate will assume immediate responsibilities in all of the firm’s practice areas, including insurance, litigation, probate, estate planning and business law. Candidates must possess an excellent academic background, strong research and writing skills, and excellent interpersonal communication ability. Law journal, moot court, mock trial, preferred. Salary and benefits are commensurate with experience. Please visit www.yandalaw.com for more information about our firm. All inquiries will be kept strictly confidential. Applicants are requested to please submit a cover letter, resume, and references for consideration.
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.
Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 hazlettjeffrey@gmail.com http://www.nadn.org/jeffrey-hazlett
MEDIATION.ARBITRATION
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MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com
Local law firm looking to share existing office space in Performance Place, next to Schuster Center. Class A, up to 4 offices. Access to 2 conference rooms, file space, kitchen, copier/scanner. Parking under building included. Receptionist included. Cleaning included. Contact Amy Suber 937-913-0200.
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September 2020 Dayton Bar Briefs
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G reater D ayton V olunteer L awyers
In These Times...
W
e are certainly living in interesting and difficult times. Like you and your law practice, the Greater Dayton By Kelly A. Henrici Esq. Volunteer Lawyers Project (GDVLP) has been navigating Executive Director, GDVLP the COVID-19 pandemic. kelly@gdvlp.org The GDVLP has thrived historically when large groups of people 937.461.3857 are in our offices or at a remote location connecting volunteers, clients and staff to engage in service delivery. Sometimes those interWe have worked out all of the processes required to engage in actions result in individualized representation, as when the volunteers remote services delivery in each of the seven counties in our sergo to Domestic Relations Court for final divorce hearings. At other vice area and we are now serving almost all clients remotely. We times, these gatherings result in the production of paperwork for may never return to the “good old days” of bringing large groups of the clients to take to Court to file pro se. In peak times, like when individuals together but if we do, it is nice to have this spectrum of children need to be registered for school, we in past years have had up service delivery options available. to 25 clients at a clinic, and an additional 10 or more volunteers and We are so extremely grateful to our volunteers in 2020. You, too, staff members to support the clinic. The days of providing services were navigating troubled waters in a COVID world yet you carved in this manner came to a halt at the beginning of the pandemic and out time to serve those less fortunate. October is Celebrate Pro Bono we suspect we will not return to this model of service delivery in the month and we have something special in store for our 2020 volunforeseeable future. teers! When Governor DeWine issued his initial order related to COVID-19 in midMarch, the GDVLP staff of four grabbed laptops and headed home to weather the COVID storm and to develop processes to engage volunteer attorneys for service delivery in a way that was effective and designed to ensure the safety of volunteers, clients and DAYTON staff. Thanks to the generosity of CareSource, which Bar Association shares the GDVLP’s mission to serve the low-income population in our community, laptops, dual monitors, and printer/scanner/copier units were donated to help GDVLP staff remain productive while working remotely. We also explored other required technology and became proficient not only with Skype, but also with Zoom and Cisco Webex to connect volunteers, clients and staff for service delivery. We also explored options for getting documents signed remotely and settled on PandaDoc for the electronic signing of paperwork. GDLVP staff also studied and passed the test required to become an online notary public, further What is The Eikenbary Trust? eliminating the need for in-person interaction to complete service delivery. The late Herbert M. Eikenbary granted the bulk of his While some volunteers fear technology more than estate to fund Grants and Loans to lawyers under the age the virus and continue to prefer in-person interactions of 35 who practice/reside in Montgomery County. These (provided social distancing and other safety measures Grants and Loans are to aid young, deserving lawyers who are in place), we are finding that many volunteers are are in need of financial assistance. willing to assist more individuals overall as remote service delivery eliminates travel and other efforts not Individual loans, are available up to $6,000 at 4% directly related to delivering service. Likewise, many interest, while grants up to $4,000 are also available. clients were already tech savvy in terms of what they could accomplish using their telephone and during To Apply: Jennifer Otchy,DBA Chief Executive Officer this pandemic, even more clients are learning the skills Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 needed to gain access to services remotely.
HERBERT M. EIKENBARY
Trust
jotchy@daybar.org | 937.222.7902 | www.daybar.org
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Dayton Bar Briefs September 2020
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L aw -R elated O rganizations Dayton Bar Foundation
Help Build Our Foundation. T
he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:
- Greater Dayton Volunteer Lawyers Project (GDVLP) - Advocates for Basic Legal Equality (ABLE) - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Law & Leadership Institute - Wills for Heroes
Write, Call or Email: Jennifer Otchy, Chief Executive Officer Dayton Bar Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: jotchy@daybar.org
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