Dayton Lawyer - Spring 2014

DAYTON Lawyer U N I V E R S I T Y O F D AY T O N S C H O O L O F L AW

SPRING 2014

In This Issue 2 DEAN’S MESSAGE 3 CONVERSATION PIECES Do you want banana peppers on your Scalia?

4 BRIEFS To tweet or not to tweet — is that a question?

7 EXPERT INSTRUCTION Get a job.

9 COMPETE,

COOPERATIVELY Study groups on steroids

14 G ETTING

AWAY WITH CYBERCRIME High profit, low risk

19 ROUNDTABLE Lots and lots of notes — send yours to lawyer@udayton.edu

The Dayton Lawyer is published by the University of Dayton School of Law in cooperation with the office of University communications. Send comments, letters to the editor and class notes to:

Dayton Lawyer

University of Dayton

300 College Park

Dayton, OH 45469-1303

Email: lawyer@udayton.edu Editors: Thomas M. Columbus, Shannon Miller Graphic designer: Frank Pauer Photographer: Larry Burgess School of Law communications specialist: Denise Baker

Cover: Photo by Larry Burgess

SUMMER 2011

DAYTON LAWYER

1

Paul McGreal Dean, School of Law

2

LAWYER SPRING 2014 2014 2DAYTON DAYTON LAWYER SPRING

CONVERSATION PIECES

DEAN’S MESSAGE

L

ast fall, I spoke to the entering first-year class about a mission to “PRACTICExcellence.” I described how it captures the spirit of who we are as a community, as well as who we aspire to be.

This column shares that vision.

The phrase “PRACTICExcellence” arose from many meetings and discussions with faculty, staff, students and alumni since I became dean almost three years ago. In those conversations, I heard about how the law school, throughout its history, has set high expectations for everyone in its community.

At the same time, the law school was preparing for its first cohort of Learning Communities, first-year study groups focused on study skills, leadership and service. (A story in this issue describes the Learning Communities and Dean’s Fellows programs.) The Learning Communities program adopted the acronym P.R.A.C.T.I.C.E. for its mission: PracticeReady Attorneys Committed to Inclusive Community and Excellence.

Two words immediately struck me: practice and excellence. “Excellence” caught my eye because it appealed to the sense of expecting the best from ourselves and others. “Practice” resonated because it has three meanings relevant to our community: n Practice as a profession (e.g., to practice law) n Practice as preparation (e.g., to improve through deliberate practice with feedback) n Practice as a discipline or habit (e.g., a practice of scheduling time to proofread and revise drafts of written work) Our students must PRACTICExcellence by developing the discipline and habits required to excel in the legal profession through deliberate practice.

“PRACTICExcellence” is our call to action. It describes who we are and who we continuously aspire to be. The forward-looking nature of this mission is crucial, as it follows the command of Marianist founder Father William Joseph Chaminade to “read the signs of the times” because “new times call for new methods.” And in harmony with the University’s mission to learn, lead and serve, we must lead transformation as times change. PRACTICExcellence is a call to do so.

The law school has continued to live this legacy by introducing new programs and initiatives that read the signs of the times. Last year, the Program in Law and Technology (PILT), long a source of innovation and excellence, started an Entrepreneurship and Intellectual Property Clinic in partnership with the Business Planning Competition at the School of Business Administration.

PILT also offers an array of cyber law courses that complement its long-standing strength in intellectual property and law and technology. The Learning Communities mentioned above assign upper-level students, known as Dean’s Fellows, to mentor and push our entering students to PRACTICExcellence. And this issue features two alumni — Bob DeRose and the late Ken Feldman — whose actions have demonstrated commitment to and support of our law school and our mission to PRACTICExcellence.

During the coming months and years, I look forward to working with our community to find new ways to lead change in legal education and the profession. I invite all alumni and friends of this special institution to join us in this journey.

Defense never rests With substantial support from the UD School of Law, public defenders have received more than 1,000 hours of practical education through a partnership between the National Defender Training Project, coordinated by adjunct professor Ira Mickenberg, and the Office of the Ohio Public Defender. For the law school’s efforts, Ohio Public Defender Tim Young ’88 presented UD with one of the office’s inaugural Defender of Justice awards. “It makes me very proud,” Young says.

“Representing the poor is an honor, a service to the community.”

CONVERSATION PIECES

Would you like mayo on your Scalia?

The verdict is in: The Jury Box makeover is a success. From a redesigned seating area to an updated menu, the restaurant in the basement of Keller Hall is designed to better serve its returning customers and attract new ones. Even the menu fits the location. You can order the “Clarence” salad, the “Taft” breakfast bagel or the “Scalia” sandwich — ham, salami, pepperoni, mozzarella, pesto mayo, banana peppers and basil — all for $5.99. The law firm of Porter Wright Morris & Arthur made the refurbishment possible, and the gift will fund future improvements to the eatery.

Online presence

New edition

Dean Paul McGreal is one of three law deans contributing to a blog discussing trends in legal education and the legal profession. Cynthia Fountaine of the Southern University School of Law and Richard Gershon of the University of Mississippi School of Law have been sharing their thoughts since last October on a variety of topics related to the future of legal education. “Law Deans on Legal Education” is part of the Law Professor Blogs Network, which features blogs from deans from schools around the nation. Read McGreal’s thoughts and those of other deans at lawprofessors.typepad.com/ law_deans.

Another year, another update. The 2014 editions of professor Thomas Hagel’s two manuals on criminal procedure and trial practice, Ohio Manual of Criminal Complaints and Indictments and Ohio Criminal Practice and Procedure were printed, shipped and in place in the Keller Hall faculty publication display case for students to use at the start of spring semester. The former text has been in print for six years, and the latter received its 10th revision.

“Given the high stress, high-demand nature of a law school curriculum, it’s imperative that students have a support system to rely on for assistance and guidance. Not only can we rely on fellow law students, but at UDSL, we’re fortunate to find support from faculty as well.”

“That’s what community lawyering is — giving lawyers more of a presence with citizens and providing an approach best suited to that environment. I learn more every time I go into a community.”

—FIRST-YEAR LAW STUDENT NICOLE SCHLATER ABOUT PURSUING A LAW DEGREE AT UDSL AFTER COMPLETING HER UNDERGRADUATE STUDIES HERE

—PROFESSOR ANDREA SEIELSTAD ON THE LAW CLINIC’S OUTREACH TO VETERANS THROUGH THE VA DURING THE FALL 2013 SEMESTER

“I will say a prayer of thanks that Keller Hall looks worse than it is, and that it could have been worse.”

—DEAN PAUL MCGREAL ON THE STATE OF THE LAW SCHOOL BUILDING AFTER SUSTAINING DAMAGE FROM A BROKEN WATER PIPE DURING RECORD COLD TEMPERATURES IN EARLY JANUARY

“Olympic values resonate beyond sport to celebrate the human spirit at its best.

Success is not just about winning but about taking part. Records are broken and the highest levels achieved only by collective effort and unselfish support.”

—TERRY MILLER ’77 ON THE ADVICE SHE’D GIVE TO UDSL GRADUATES. MILLER, WHO SERVED AS GENERAL COUNSEL OF THE ORGANIZING COMMITTEE FOR THE LONDON 2012 OLYMPIC AND PARALYMPIC GAMES, DELIVERED THE 2013 UDSL COMMENCEMENT ADDRESS

SPRING 2014

DAYTON LAWYER

3

BRIEFS News from Keller Hall

Sterling legacy UDSL’s Legal Profession Program had plenty to celebrate last fall as it recognized its 25th anniversary. Since its initiation in 1988, the program has achieved a national reputation for excellence.

In 2004, U.S. News & World Report first recognized it as one of the top legal research and writing programs in the country.

UDSL was among the first law schools to require eight credits of legal research and writing instruction, and transactional drafting was introduced recently as an alternative to appellate advocacy in the third semester. Three semesters of designated courses in legal writing and research are required for all students.

“The program gave me the ability to identify issues, succinctly state rules and principles of law and develop the ability to make a compelling argument,” said Walter “Chip” Herin ’11, a former law review editor now with Coolidge Wall. “As a practicing attorney, I use those skills every day.”

4

DAYTON LAWYER

SPRING 2014

Moot points “The judges uniformly praised the two finalists, Christine Farmer and Jon Bucher, saying the quality of their advocacy would make them welcome in any state or federal court in the region,” said Dean Paul McGreal.

“They did an incredible job,” said Cristina Frankian `14, chief justice of Dayton Law’s Moot Court Board.

A panel of three federal judges — (from left) Thomas M. Rose, Walter H. Farmer, who was selected Rice and Timothy S. Black — heard arguments from Christine Farmer best advocate, and Bucher were (far right) and Jon Bucher at finals of the 2013 Walter H. Rice Moot Court being praised for their perforCompetition while Katherine George, a finalist in 2012, kept time. mance in the final round of the Walter H. Rice Intramural Moot Court Competition. preliminary rounds, which determine who makes the This was the 36th year UDSL has hosted the comteam and advances to the semifinals and final round. petition. Joining Judge Rice on the judging panel This year, eight students forming four teams are of the competition were U.S. District Court Judges traveling to national competitions in the spring.

Thomas Rose and Timothy Black.

“It’s a rewarding and prestigious activity,” The finals come at the end of a road that begins Frankian said. “It indicates you’re a good writer and with students taking the Appellate Practice and Proyou’re good on your feet. And it gives you a conneccedure course. The written brief and oral argument tion in the profession to others who have had the from that course are the basis for invitations for the experience of moot court.”

Virtual learning

Externing to service

Jeannette Cox used to meet with her civil procedure class four times a week. Now she sees her students in person thrice weekly — and their exam performance has improved dramatically, she says.

The students didn’t lose a crucial period of instruction. By moving part of her course to an online platform, Cox was able to make course material available to her students in advance of class.

“We’re able to use class time more efficiently,” she said. “Students have been better prepared when they come to class because they’ve had a chance to see the material already. Some students tell me they’ve watched a video 15 times.”

Cox is among the UDSL professors testing the effectiveness of offering porCox tions of their courses online. Sheila Miller has online components in her legal profession courses, and Dennis Greene has also used virtual platforms in his classes. The instructional portion of Denise Platfoot Lacey’s externship class is exclusively completed online.

In 2012, Cox gained national attention for her article “Pregnancy as ‘Disability’ and the Amended Americans with Disabilities Act” in the Boston College Law Review. The 2008 amendments to the ADA began including temporary disabilities such as short-term back injuries and broken arms; Cox argued the ADA protections should also extend to women whose physical restrictions are related to pregnancy.

Students in UDSL’s externship program do more than earn course credit while gaining work experience.

For many, the externship is a vehicle for them to help their communities or support a cause close to their hearts.

Ethan Nkana ’13 worked in the Montgomery County public defender’s office during his third year of law school helping defend juvenile clients.

“My externship was a challenging but great experience,” Nkana said. “I liked knowing that I was making an impact in kids’ lives. The experience did not change what I do from 9 to 5, but it changed what I do from 5 to 9,” he said.

Nkana works as a business manager for service-line operations at a hospital but began volunteering at his local Big Brothers Big Sisters organization in Denver this year. As a Big Brother in the after-school program, he spends time playing sports and helping kids with their homework.

Katie Wright, a third-year student, applied her legal research and writing skills to prolife issues while working for Alliance Defending Freedom, a Christian nonprofit.

“I definitely served the community during my externship. I am glad my work went toward a cause I am passionate about,” she said.

In addition to the externship program, students can gain experience in the school’s Law Clinic, which provides legal services to indigent clients accused of misdemeanors in Dayton Municipal Court.

“The law clinic is just one way the law school helps people in need,” said third-year student Katherine Newton. “The school also allows students to get a notation on their degrees to indicate the fulfillment of pro bono hours or hours without pay requirement.”

Newton completed more than 50 hours of criminal and civil pro bono work with the Greene County (Ohio) prosecutor’s office, where she helped victims of criminal cases in the area obtain closure.

Students say the opportunities to help the community through the law clinic and pro bono hours create a spirit of collaboration that extends to their coursework.

“The law school definitely emphasizes service not only in the practice of law but in life.

I hear other law schools have an air of competitiveness. We don’t have that. We help each other and the community as much as possible,” said Wright.

—Allison Lewis ’14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

#guilty or #notguilty Two years ago, law professor Thaddeus Hoffmeister didn’t consider Twitter all that viable in the growing social media universe.

“I thought, 140 characters, how does this work?” he says.

Now he teaches a class on social media and the law and this year will have a book, Social Media in the Courtroom: A New Era for Criminal Justice, published

by Praeger.

“Trial by Tweet,” an article in the Winter Hoffmeister 2013-14 issue of University of Dayton Magazine, explores the influence of social media on jury behavior and the ramifications that behavior can have on the outcome of a case. Hoffmeister, who joined the faculty in 2007, is one of the nation’s leading experts on social media and the law and blogs about the topic at

juries.typepad.com.

In the article, written by Gene Williams, Hoffmeister describes how Twitter, Facebook and other social media platforms have turned ordinary citizens into what Hoffmeister calls “social media vigilantes.”

Here’s an excerpt: “In 2009, for instance, an American couple visiting the Bahamas decided they wanted an exotic meal … of endangered iguanas.

Like all good Facebookers, they felt the need to document their feast and posted pictures of themselves ‘cleaning the iguanas, and barbecuing the iguanas, and grilling the iguanas,’ Hoffmeister says. “‘Somebody saw the pictures on their Facebook page and called the authorities down in the Bahamas and these people were arrested. All because of people watching and seeing what was on somebody’s Facebook page. There’s so many different ways that social media is now impacting criminal law.’ ”

SPRING SPRING 2014 2014

DAYTON DAYTON LAWYER LAWYER

55

Former dean Lisa Kloppenberg accepted the dean’s position at Santa Clara University School of Law last July.

Kloppenberg served as dean for 10 years and remained as a faculty member after leaving the dean’s position in 2011.

During her tenure, UDSL increased the diversity of its student body and faculty, raised the amount of endowed scholarships by 34 percent, strengthened its program in law and technology and added a master of laws degree and a master’s degree program for non-lawyers. She also facilitated the school’s growing emphasis on community service and pro bono legal hours, as well as the Lawyer as Problem Solver program.

In 2005, Kloppenberg implemented an accelerated five-semester law degree, the first in the nation.

During her tenure, the legal writing program was ranked in the top 20 by U.S. News & World Report, and a curriculum that included a track in appropriate dispute resolution won an award for excellence from the International Institute for Conflict Prevention and Resolution. In 2007, the school was one of a few invited to examine how U.S. law schools prepare students for the profession and make recommendations for reform to the Carnegie Foundation for the Advancement of Teaching.

—Shannon Shelton Miller

6

DAYTON LAWYER

SPRING 2014

Magnificent seven Seven longtime School of Law faculty retired last spring after teaching more than 5,000 students — nearly all law alumni — since the school reopened in 1974. Together, they logged 200 years of teaching. They taught more than 800 courses over roughly 400 semesters.

Approximately 300 people showed their appreciation at an April 2013 campus reception honoring E. Dale Searcy, Vernellia Randall, Cooley Howarth, Richard Saphire, Becky Cochran, Jeff Morris and Tom Hanley.

“I see standing before me the best measure of their time here,” said Dean Paul McGreal. “All of the alumni, faculty, staff and students who took the time to come here and to say ‘thank you’ for how you inspired us, challenged us, and changed and shaped our careers and lives. It is in that message that we see [the school] is immeasurably better for your time here.”

Fellow law professor Blake Watson drew laughs with a presentation that included creative photo editing of group shots and little-known tidbits about each one.

McGreal, then in his second year as dean, remembered his first impressions during a tribute that mixed gratitude with humor: n On Searcy, who taught tax law and ran the Volunteer Income

Tax Assistance Program for more than three decades: “As I sat in the faculty lounge, out of the corner of my eye, I saw this man in a ‘colorful’ outfit. I thought, ‘Does he always dress this way, or is he trying

have been awarded the distinction of Super Lawyer through a national rating service.

“Let’s recognize these seven people for the innumerable lives they’ve changed,” Smith said. “Let us remember how they molded our own thinking of the world.”

The law firm of Thompson Hine supported the event and alumni from Jackson Kelly in West Virginia helped underwrite it.

The event raised nearly $75,000 in pledges and commitment for scholarships. John Napoli ’82, co-managing partner in the New York law firm of Seyfarth Shaw, committed $50,000 to start an endowed scholarship in Searcy’s name.

The School of Law wants to continue building upon the legacies of “the magnificent seven” by seeking gifts from alumni for endowed scholarships and programs.

“We want to celebrate the impact of these dedicated professionals and pave the way for future students who are attracted to the quality and values of a UD law school education,” said Deborah Adler Codeluppi ’81, director of development.

For more, visit this link to a video on the accomplishments of the seven retiring faculty members: udayton.co/BE9.

—Teri Rizvi Photo illustration courtesy of Blake Watson

Former dean Lisa Kloppenberg heads west

to test me?’” n On Morris, nationally known bankruptcy expert: “I received an email that read like a request for interrogatories, with 30 questions, NOT including discrete subparts.” n On law librarian Hanley: “Who, the first time I met him — and every time since — has answered the casual greeting, ‘How are you today?’ with the somewhat alarming, ‘Adequately.’”

Sutton Smith ’13, a two-year accelerated law student, spoke of the professors’ legacy. Their former students now serve as judges, CEOs, vice presidents, general counsels, mayors, prosecutors, congressmen and attorneys at every level — from law clerks to lawyers in the armed services and federal government. More than 300

From PILT to pro bono Kelly Henrici ’94, executive director of the program in law and technology, left the UD School of Law at the start of 2014 to take a position as director of the Greater Dayton Volunteer Lawyers Project. Henrici had run the program since 2007.

Under her leadership, the law and technology program launched a bi-annual scholarly symposia series that has

brought nationally known guest speakers to campus to discuss hot topics in intellectual property. She also collaborated with others on the University campus to expose law students to the School of Business Administration and School of Engineering to introduce them to the world of entrepreneurship.

In 2013, Henrici was instrumental in establishing a patent clinic for law students to get hands-on, realworld experience with practitioners and entrepreneurs before graduation.

Before starting his legal studies at UDSL, third-year law student Brandon Stewart traveled the globe, with stops in Costa Rica, the Bahamas, Syria, Israel and Korea.

He continued his exploration by completing his legal externship last summer in Australia.

“I know that the world is bigger than the United States.

We may consider ourselves to be the most powerful nation, but that does not mean we have the most effective answers,” Stewart said. “I believe that to have the best legal system you must understand how other countries’ legal systems are structured to see if there’s a better way to structure our own.”

In Australia, Stewart worked for a firm that handled workers’ compensation and common tort law. Sometimes he had the opportunity to conduct Brandon Stewart at the Liverpool Courthouse: “I wanted to be able to research for a see the individuals who didn’t have family or work on a a voice and be their voice.” criminal case. In his first week, he noticed a key difference from the American legal system.

“The Australian legal system uses solicitors and barristers while the American legal system only uses lawyers, which is essentially both a solicitor and barrister in Australia,” Stewart said. “Solicitors work directly with clients as they prepare contracts, wills, probate documents and attend to other paperwork as well as investigating the facts of the matter, writing letters to other parties and preparing paperwork for the courts if the client is involved in a dispute.”

“If a solicitor cannot handle the case, the solicitor will recommend a qualified and experienced barrister appropriate to the budget of the client and the nature of their case to be their advocate to help resolve the case.”

Although he’s studying law, the Jackson, Tenn., native doesn’t see himself becoming a lawyer. A devoted member of his church and member of the Air Force Reserves, he knew he wanted a career that kept him close to his faith and asked himself how he could affect change through his beliefs.

After getting a bachelor’s in English and communication and a master’s in theology, he decided law school was the next step.

“I wanted to be able to see the individuals who didn’t have a voice and be their voice,” said Stewart. “My dream job would be three-fold; I would love to be a mayor back home, work as an Air Force Reserve chaplain and work for a nonprofit organization.”

—Megan Garrison ’14

EXPERT INSTRUCTION

Down under

HOW TO USE YOUR LAW DEGREE OUTSIDE THE LEGAL PROFESSION DAVID GONSIOR ’85 says he used his legal education daily working for three Fortune 500 companies. Yet he never spent a day in a law office as a practicing attorney after graduating from UDSL — he spent most of his 30-year career in corporate real estate.

Gonsior isn’t alone among law school students and graduates pursuing or possessing a juris doctorate considering or currently working in non-law related careers. Now retired from the corporate world, Gonsior, who does part-time work as a real estate consultant, presents seminars and offers résumé reviews for law school students interested in careers outside the legal industry.

Here are some of his tips.

1

Determine whether you want to compete for a decreasing pool of lawrelated jobs. The Wall Street Journal reported that just 55 percent of 44,000 graduates in 2011 had landed full-time law-related jobs nine months after graduation with a term of at least one year. Those prospects sound bleak, but Gonsior said the corporate world is eager to hire people with legal experience. “I used my law degree almost every day,” said Gonsior, who built a career at former Dayton corporate giants Mead, NCR and National City managing real estate projects.

Identify potential career paths. Gonsior suggests real estate, corporate risk management and insurance, compliance, tax work, consulting, intelligence (FBI, CIA), labor relations and government agencies among the career sectors that value law school grads.

Tailor your résumé accordingly. “It’s clear that a corporate résumé will be different than a legal one,” he says. Highlight skills gained from a law school education that would benefit a corporation or nonprofit, such as research, analysis, writing and public speaking skills. A strong knowledge of the law and how it applies to the job’s needs should send your résumé to the short list.

Lay down your sword. A legal education provides the tools needed to make a winning case, but business success thrives on teamwork. Once you’ve landed the job, use your analytical skills to help the group craft a solution. “You have to disarm yourself in the corporate world. Instead of winning an argument, you have to seek consensus,” Gonsior says.

—Shannon Shelton Miller

2 3 4

Gonsior says he’s happy to provide a résumé review for students interested in careers outside the legal profession. Contact him at dsgonsior@gmail.com for more information.

SPRING 2014

DAYTON LAWYER

7

‘Finders’ keepers?

In 1775, 11 chiefs from the Piankeshaw Indian tribe sold two large tracts of land to 20 private citizens. Most of the purchasers would later unite to form the Illinois and Wabash Land Company, a group of speculators angling to make a fortune developing what was then considered the American West.

Thirty years later, in 1805, the Piankeshaws sold Watson the same land to the United States government through a treaty negotiated by future U.S. President William Henry Harrison, then governor of the Indiana Territory. Another speculator, William McIntosh, later purchased a portion of the land.

Who really owned the land?

By 1823, the disputing claims had reached the Supreme Court, and Chief Justice John Marshall ruled the 1805 purchase was the only valid one despite taking place three decades after the Piankeshaws’ initial sale.

As UDSL professor Blake Watson writes in his book Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights: “On behalf

of a unanimous Supreme Court, Marshall announced that following the discovery of America, Indians no longer enjoyed the ‘power to dispose of the soil at their own will, to whomsoever they pleased.’”

Published in 2012, Watson’s 512-page work examines Marshall’s embrace of the “doctrine of discovery” — the idea that the Europeans who “discovered” the land automatically gained ownership rights — as the foundation for his ruling. It’s a curious interpretation of property rights, Watson says, as the chief justice acknowledges the Indians’ right to occupy the land but not their right of ownership postdiscovery. The ruling establishes the U.S. government as the only entity that can buy Indian land, preventing private citizens from engaging in property transactions with Native Americans.

“This is still the leading case from the Supreme Court on Indian land rights,” Watson says. “It’s controversial because it diminishes Indian land rights.

It’s a subtle legal issue because Marshall doesn’t say ‘You can’t buy land,’ just ‘You can’t sell

it. You don’t even own the land The Piankeshaws were part anymore.’” of the confederation of Illinois InWatson’s interest in the topic dians, which included the Miami began when he worked for the tribe that lived in Southwest Ohio Department of Justice in Washingand the Illini tribe of Illinois. The ton, D.C., as a lawyer in the EnviPiankeshaws were later forced ronment and Natural Resources west to Missouri and Kansas, Division, representing the U.S. in and their descendants now exist cases related to environmental, as the Peoria Tribe of Indians of natural resources, Oklahoma.

‘On behalf of wildlife and Indian In addition to a unanimous law. Although he American policy, the Supreme became well case also influenced versed on the body Court, Marshall the development of of law regarding laws that diminished announced that Indian property indigenous land rights following the rights, he noticed in Australia, New discovery of a dearth of scholarZealand and Canada, America, Indians Watson says, as those ship on the tribes no longer enjoyed nations also adopted themselves. the “power to Buying the doctrine of discovAmerica from dispose of the soil ery idea to determine the Indians who possessed land at their own will, resulted from 10 where indigenous to whomsoever years of research people lived. they pleased.”‘ and information Watson continues gathering on Johnson v. McIntosh. to speak on Indian law issues and Watson said he took a “kitchen addressed a February 2014 consink” approach to the book, ference at Florida International including not only information University in Miami on a land he found about the case but also transfer that helped establish that character sketches of the major state’s current borders. figures involved, the geography In 2013, Watson received the of the area where the Piankeshaw “Award of Superior Achievement” tribe lived and the historical and from the Illinois State Historical political climate of the pre- and Society for his work on the book. post-Revolutionary War era.

—Shannon Shelton Miller

Updating a classic Retired professor Richard Saphire is a member of the Ohio Constitutional Modernization Commission, a body of 32 state legislators and public citizens who meet regularly to examine the state constitution and make recommendations to modify, amend and modernize it when needed.

The state general assembly passed a bill in 2011 to create the non-partisan commission, similar to one convened in the 1970s for the same purpose. Twelve state legislators – six Democrats and six Republicans – and 20 members of the public make up the commission.

Saphire, who serves with former Ohio governor and current UD professor Bob Taft,

8

DAYTON LAWYER

SPRING 2014

said there were up to 600 applications for the 20 public member positions.

“I didn’t expect to be chosen,” Saphire said. “This is important work and an important public service. Even though most Ohioans don’t know what’s in the state constitution, Saphire it provides the legal and political framework for how our society operates.”

Saphire was part of a task force convened

in 2010-11 to create the framework for the commission. He enjoyed the process so much that he decided to apply for a position.

Members are currently in the research and information-gathering stages and don’t expect to present recommendations to the general assembly for at least another year. The commission will complete its work no later than July 1, 2021.

Saphire has remained active in the legal community since his retirement, also working as the general counsel for the American Civil Liberties Union of Ohio.

“I’m busy doing things I want to do,” Saphire said. “It’s nice. I’m enjoying it.”

The coursework, the intensity, the pressure — law school is a challenge from the moment students step foot in the classroom. “The first week I started law school I went home and cried,” said Amy Givens, a second-year student in the accelerated two-year J.D. program. “Most people don’t want to admit it, but many of them feel the same way.”

COMPETE, COOPERATIVELY Dean’s Fellows learn leadership while creating community in a competitive environment

By DEBBIE JUNIEWICZ

From the intense competition to a daunting classroom experience to exams that test the spirit as much as they test the mind, most first-year law students will agree that surviving — much less thriving — is not a given.

But a new program at the University of Dayton School of Law is designed to help students do both — survive and thrive.

All students entering the University School of Law in the fall 2013 semester were assigned to a learning community during orientation. The mission of the learning communities is to support the development of PRACTICE — Practice Ready Attorneys Committed To Inclusive Community and Excellence. Participation in a learning community during the first semester is a graduation requirement for all students.

“It’s about building community

within a competitive environment,” said Staci Rucker, assistant dean of student affairs at the University of Dayton School of Law. “The data supports the effectiveness of cooperative small group learning. We’ve seen it here.”

ABOUT THE PROGRAM Rucker wasted little time introducing the learning community concept to UDSL Dean Paul McGreal.

“The first time I met with the new dean I started talking about the value of learning in community,” Rucker said. “I was so motivated and so inspired by the possibilities.”

The current learning communities evolved from the UDSL Academic Excellence Program that had been in place for several years. AEP was a learning community committed to excellence and designed to help participants maximize their academic

SPRING 2014

DAYTON LAWYER

9

10

CHAD HOUSTON

KELLI HAYES

AMY GIVENS

“I am excited about the prospect of showing other members of the community that there is never any reason to let thoughts and questions about being able to success in law school enter their minds.”

“As a Dean’s Fellow, I hope my experiences will help firstyear students build character that combines competitiveness and modesty.”

“An inclusive community of learners will allow us to sharpen each other’s skills, creatively problem solve, and promote excellence for all.”

ELIZABETH SCHULER

KATIE BLUNT

JON BUCHER

“I want students to take away from the experience that being a lawyer is not just a career but also joining a community of professionals.”

“The Dean’s Fellows Program presents an exciting and unique opportunity for me to help incoming students make the challenging transition to a successful law school career.”

“It helps to have role models lead you in the right direction. I feel that collaborative learning is vitally important in law school.”

CHRISTINA SPENCER

JACK HEMENWAY

MARCIE HUNNICUTT

”I have had a very positive experience with law school; and I want to share that experience and demonstrate to incoming students that law school, while stressful at times, is a very rewarding, manageable and enjoyable endeavor.”

“I plan on being an ambassador for the University of Dayton any way that I can both during my time here and when I begin practicing law. Being a Dean’s Fellow is an extraordinary opportunity to be such an ambassador.”

“I love being part of something that enables others to succeed and knowing that I helped somehow in the process.”

DAYTON LAWYER

SPRING 2014

performance during the first semester of law school. Unlike the current program, however, AEP participation was optional.

“I participated in the AEP and I really enjoyed the small group learning,” Marcie Hunnicutt said. “It was free help; you’d be almost foolish not to take it. That’s part of the reason I got involved in the Fellows program — because I wanted to help other incoming students.”

The UDSL learning communities utilize the services of nine Dean’s Fellows, each of whom has from eight to 10 students in his or her community. They meet weekly during the first semester covering a variety of topics from time management to IRAC — Issue, Rule, Application and Conclusion — and case synthesis to test preparation. First-year students also meet with specialists from the University of Dayton Career Services office to explore professional opportunities.

The fellows are high performing, upper-level law students who have demonstrated the highest potential for leadership and academic achievement. They also bring a diversity of life experiences to the program.

“In this first year, I recruited the best and the brightest people I could find to come on this journey with me,” Rucker said.

In addition to the weekly class meetings, fellows also have office hours for one-on-one appointments.

“I think of it as a mentor program so students have someone to help prevent them from making the same mistakes I did,” Dean’s Fellow Jack Hemenway said.

“There is someone to ask questions to, and listen to you, someone who has done it and made it through.”

Faculty advisers also play an integral role in the new first-year experience as students will retain the same adviser throughout law school. That continuity will enhance the adviser-student dynamic.

“It’s a relationship and, down the road, a potential reference,” Rucker said. “It’s just one other way that we want to ensure the academic and personal success of our students.”

The incoming 2013 class created its own Oath of Professionalism. Future classes will do the same.

“It was a great opportunity to really think about the profession they are entering,” Rucker said.

Individual learning communities were charged with drafting an oath, and the final version is a blending of the work of the various groups.

“It’s a great common ground for the learning communities,” Rucker said.

backgrounds and experience, but they all share a steadfast determination and a willingness to help others. Katie Blunt, Jon Bucher, Amy Givens, Kelli Hayes, Jack Hemenway, Chad Houston, Marcie Hunnicutt, Elizabeth Schuler and Chris-

‘It’s a great common ground for the learning communities.

And it’s a tangible illustration of what we believe.’

STACI RUCKER Assistant dean of student affairs at the University of Dayton School of Law

“And it’s a tangible illustration of what we believe.”

ABOUT THE FELLOWS Traditional or nontraditional student — it’s simply not that clear-cut. While a majority of undergraduate students enter college shortly after graduating from high school, the path to law school can be a bit longer and more complex and include careers, marriage and children.

The inaugural class of Dean’s Fellows is no exception. They have varied

tina Spencer comprise the 2013 Dean’s Fellows; and their diversity of experience is part of what is making the program so effective.

Jack Hemenway was successful but not satisfied. The Wittenberg University graduate was a few years out of school and managing a business, but something was missing.

“I wanted more of a challenge; I wanted to have a bigger impact in the community,” Hemenway said.

After a few years in the workforce, the

SPRING 2014

DAYTON LAWYER

11

Centerville native made the decision to enroll in law school.

“I needed a few years to mature and get better perspective about how things work,” Hemenway said. “My dad is a lawyer; and he always said ‘there are a lot easier ways to make a living,’ but I was ready.”

Marcie Hunnicutt is a mother of four with years of professional experience working for Intel Corporation and other companies. While she had plenty of personal and professional accomplishments, the 43-year-old, too, was ready for a new challenge.

“Being a mother of four, I bring a lot of skills like time management, efficiency and organization,” Hunnicutt said with a smile. “But I found that the transition to law school can be difficult and the classroom can be intimidating because your professors will grill you — they will put you on the spot. It can be a very humbling experience.”

Hunnicutt, whose interests lie in compliance, intellectual property law and federal regulations, believes that her work and life experiences have contributed greatly to her law school success.

“Law school can be a big shock,” she said. “You need to be prepared to make the commitment.”

Amy Givens was never one to shy away from hard work or long hours. With a bachelor’s degree in business and a master’s degree in elementary education, Givens had faced many challenges from the business world to the second grade classroom, but she was in for a surprise when she started law school in 2012.

“Law school can be scary,” she said.

“Education was such a friendly environment; law school was so competitive. I was shocked.”

The competitive environment was one reason Givens, 33, decided to apply to the Dean’s Fellows program.

“Doing a good job is a great source of personal pride for me but so is getting along with people,” she said. “I believe we can all do well — together.”

SECRETS TO SUCCESS There is no one-size-fits-all plan for law school success.

The fellows can vouch for that.

Hemenway, a newlywed, treats law school like a job. As the editor-in-chief of the Dayton Law Review, he puts in

12

DAYTON LAWYER

SPRING 2014

Learning community topics by week n Review of classroom process; post-class and weekly review; time management n Introduction to IRAC n Case synthesis n Outlining and effective use of study aids n Professional development brown bag with faculty advisor n The IRAC assembly line n Exam practice: civil procedure and property n Career Services office presentation n Professional development brown bag with faculty adviser n Multiple choice practice n Exam preparation wrap-up

long hours on campus; but when he goes home, the 28-year-old focuses his time and attention on his wife and personal interests like watching college basketball and playing sand volleyball.

“People are surprised that I don’t usually have to do homework at home in the evenings,” Hemenway said. “But I look at it like I’m on the clock every morning at 8 a.m. and I work until 5:30 p.m. Following my study schedule gives me great flexibility, while still keeping up with my schoolwork.”

While Hemenway tries to limit his study time to the workday, Hunnicutt’s study time and home life often overlap.

Her children, in fact, help her study with flashcards; but they also know that there are times that mom is off limits. If the Do Not Disturb sign is hanging on the door, it means what it says.

“Especially in the first year, you need to say ‘no’ to everything and be very selfish with your time,” Hunnicutt said.

“I’m very fortunate to have a supportive husband. You have to have a lot of help if

you have a family because you will spend 60 hours a week on schoolwork.

“But the job market is so competitive, don’t waste your money and your time if your goal is not to be marketable.”

These are just some of the things that the fellows can share with the students in their learning communities. But they also serve as a sounding board for their students.

“They can come to us with a question or complaint, and we can be a support for them,” Givens said. “I can share with them what I’ve learned, what I’ve done and what I should have done. And if I don’t know the answer to one of their questions, I can find out.”

The small size of the learning communities tends to increase participation and decrease anxiety.

“It can be more comfortable asking questions in a smaller group,” Hunnicutt said. “And we can explore a variety of topics without the intimidation of a professor.”

THE PAYOFF Michael Norris owned a small business and served in the United State Air Force, but even the experienced 47-year-old veteran had some law school trepidation.

“I was surprised at how nervous I was on the first day,” Norris said. “I felt like a kindergartner going off to school for the first time.”

The learning communities have been beneficial for the Niagara Falls, N.Y., native.

“Going to law school is a big change for me and poses a very different set of challenges than the ones I am familiar with,” Norris said. “This is a longtime goal of mine that I am now actually doing. The overall Academic Success Program and the learning communities have been invaluable to me by helping me establish good habits early and to dispel the mystique and mystery of law school. These programs greatly shortened my learning curve not so much for the law but for the overall law school experience.”

Law school study groups are not new but, according to Norris, the new mandatory participation in the learning community programs by the first-year students has two significant benefits.

“First, the mandatory nature is a big help for students who may not be comfortable joining study groups if left to their

own devices,” he said. “Second, these ‘Instead of having professors and faculty dictate information groups are led by Dean’s Fellows. This to us, the Dean’s Fellows are students, like us. This creates is an important point because instead of having professors and faculty dictate an informal atmosphere for the easy discussion of the information to us, the Dean’s Fellows are various challenges a first-year student faces.’ students, like us. This creates an informal atmosphere for the easy discussion of the various challenges a first-year student William K. Suter, former 19th Clerk of communities. faces.” the Supreme Court of the United States, “I think we could do a lessonsDean’s Fellows have credibility with and Gustavo Gelpi, the youngest U.S. learned session towards the end of the the students because they are students.

District Judge for the District of Puerto semester,” Norris said. “Maybe have They have been-there-done-that and Rico and national president of the Fedeach student name one thing they plan done it well. eral Bar Association. to do differently going forward based “It provides first-year students with “This is great leadership developon what worked or did not work in the an informal mentor that they can reach ment for our fellows,” Rucker said. first semester. These could be compiled out to for advice,” first-year student La and shared with each other to make an nese Layne said.

MOVING FORWARD already excellent program even more The Cincinnati native, likewise, apThe program is a work in progress valuable.” preciates having a setting and place to and will grow and evolve as necessary.

It’s a matter of using the time wisely. convene to discuss concerns and to share Rucker plans to utilize input from “I would suggest that first-year success stories and best practices. students, evaluations from the Dean’s students truly take advantage of the time “I have learned a great deal from my Fellows and, down the road, the Law spent in their learning communities learning community. I have explored new School Survey of Student Engagement because much can be learned from peer methods of studying, and I have learned (LSSSE) and the school’s bar passage discussion and from their Dean’s Felnew ways of how to effectively manage rates to evaluate the fledgling program. lows,” Layne said. my time. Overall, I enjoy the camaraAs the current first-year students Rucker expects an increased interderie,” Layne said. “I have a great Dean’s complete their first semester, they est in the Dean’s Fellows positions as the Fellow. She always makes herself available already have input about the learning program progresses. There were approxito answer questions and mately 20 applications for she provides great insight this year’s inaugural group of on how to navigate through fellows.

Oath of Professionalism the first year.”

“I predict we will more Entering Class Fall 2013 The first-year students than double the number of aren’t the only ones who are applicants for the next group,” reaping the benefits of the Rucker said. “But I will be forI am privileged to be a member of the entering class learning communities. ever indebted to these fellows of Fall 2013 of the University of Dayton School of Law. As part of their trainfor supporting what I believe With this privilege, I do swear or affirm that I will support ing, the Dean’s Fellows is the most exciting program the Constitution of the United States of America and the participated in sessions in the law school right now.

State of Ohio, and the Law School Honor Code. designed and led by the “I’m excited for both I will uphold the ethical and professional expectations UD Center for Leaderthe local and national legal of the great tradition of the legal profession. ship to help them identify community to see what we’re I will strive to practice excellence at every level by their individual leadership doing.” learning, leading and serving. strengths; how to anticipate And, more than the atand minimize potential tention of her peers, Rucker I will represent myself, the University of Dayton, the conflicts in group facilitais excited about the impact Dayton community, and the legal community at large with tion; team development; that this program will have integrity and respect. and tips and tools to move on UDSL students now and I will do my best to uphold the high academic stanteams to a higher level of throughout their academic dards of this institution, working together with my colperformance. careers. Because, while, the leagues to learn my profession.

They have attended program takes place during I pledge to lead by example, become an active memnumerous events this sethe first semester, the benefits ber of the community, and devote myself to truth, justice, mester as special guests of will likely be noticed for years and the rule of law.

Dean McGreal to hear from to come.

And I will serve my university, colleagues, community, leaders that have visited “Law school is more of and vocation by conducting myself in a manner befitting campus, including Bob a marathon than a sprint,” the high standards and values of the legal profession.

Bolz, who recently retired Hunnicutt said. “The skills as a vice president of Lockthey learn now will help them heed Martin, retired Gen. throughout their time here.”

SPRING 2014

DAYTON LAWYER

13

It’s done. Can it be stopped?

Can the law pull the plug on cybercrime?

GETTING AWAY WITH

B

Maybe. Maybe not.

BY T H O M A S M .

C O L U M B U S

14

DAYTON LAWYER

ank robbers used to be famous: Bonnie and Clyde, Willie Sutton, John Dillinger. … They were fodder for headlines and the inspiration for movies.

Today, cybercriminals prefer to loot your bank account anonymously — on a scale undreamed of by the gun-toting gangsters of yesteryear.

Bank robbers and cybercriminals do have in common a love of technological improvements. In the 1930s, before the expansion of federal law enforcement, one could rob a bank in one state and simply drive into the next to elude arrest. Clyde Barrow wrote to Henry Ford thanking him for his automobiles that made eluding police so easy.

Today — as students learn in the Cybersecurity and National Security Law class of Susan Brenner, Samuel A. McCray Chair in Law — cybercriminals continue to use technology to stay a step (or two) ahead of the law.

“Until this class,” Cristina Frankian ’14 said, “I didn’t realize what an issue cybersecurity is. I didn’t realize how complicated it is.”

That complexity — technological, geographical and legal — presents the legal system, corporations and private citizens a problem that must be confronted, whether through changes in law, enhanced law enforcement or better defenses on the part of potential victims.

Cybercrime seems almost to have been born by accident. Early in the computer age, hacking was like a game.

Brenner, in her 2010 book Cybercrime: Criminal Threats from Cyberspace, wrote of MIT in the 1970s when one’s computer might flash “Give me a cookie,” raising fears of lost work. But typing “cookie” would yield a thank you; and not doing anything, “I didn’t want a cookie anyway.”

No harm, no foul?

As computers became linked through larger networks and through the explosion of personal computers, hacking became more widespread. And hackers morphed into two groups: brilliant programmers and computer criminals. By the end of the 1990s, the problem was serious. On May 4, 2000, computers around

SPRING 2014

Right, Susan Brenner is framed behind a bank of computers in the main campus data center.

the world received an email with the subject line ILOVEYOU and an attachment LOVE-LETTER-FORYOU.TXT. Once it was opened, Brenner said, it emailed itself to everyone in that person’s address book.

And the process repeated and repeated and repeated.

The so-called Love Bug destroyed files as it infected 45 million computers in at least 20 countries and caused $8 billion to 10 billion in damage.

The bug was traced to the Philippines, but no one was convicted of a crime. In 2000, the Philippines had no law against creating and spreading a computer virus.

Soon, the original creators of such malware were joined by others who had as their motive not just destruction but substantial profit. The malware business produces an estimated annual income of more than $100 billion. And it’s generally a legal business. Laws prohibit the use of malware but not its creation. Its use, however, is often not reported. For example, if one is running an online casino that could lose millions if its servers were shut down by an attack, one could see wisdom in paying $2,000 a month for “protection.”

Part of the difficulty in arresting and prosecuting perpetrators of cybercrime is analogous to those state boundaries that helped bank robbers of the past motor across state lines. Cybercrime is relatively new; quickly changing technology gives criminals new tools and opportunities. Law, however, changes slowly. And it is not a simple thing. The United States alone has 52 sets of laws (the states, the federal government, the District of Columbia).

And, Frankian said, “just look at the Homeland Security site, how many agencies are working on cybersecurity. That creates an overlap of work and a lack of communication. It’s inefficient.”

And a hacker can be anywhere on earth. And Earth

CYBERCRIME

SPRING 2014

DAYTON LAWYER

15

has 193 countries. Maybe. The United Nations does have 193 members. The U.S. Department of State recognizes 195 nations.

FIFA, the governing body of soccer, has 209 national associations. Disagreements about sovereignty, jurisdiction and what constitutes crime are commonplace — making prosecuting attacks on computers difficult.

Computers don’t make just good targets for crimes; they are also very useful tools

After the confusion turned into a case, one of the sisters wrote to Brenner — who had blogged about it. The sisters were terrified.

The resolution of the case? Because the accused, Brenner said, “did not direct any of his activity toward either victim, he did not commit the crime of harassment.” Under a negotiated deal, he pled guilty to a lesser charge, was sentenced to 30 days and a year’s

Will Cristina Frankian ’14, who interned with a federal magistrate, have the tools when she goes into practice to take on cybercriminals?

themselves for committing traditional ones such as fraud, harassment and even murder.

Some crimes would seem simple to avoid — don’t withdraw your savings when you get an email from Nigeria. But many people do.

Victims in the United States have lost hundreds of millions of dollars; the amount is estimated because most victims don’t report the crime to police.

Those wishing to stalk or harass others have found computers to be a powerful tool. And one that challenges legal descriptions of certain crimes. For example, two sisters, ages 28 and 16, were churchgoers in an Indiana town. Unknown to them, a man who worked at the church created Facebook pages in their names. He posted their photos, addresses, phone numbers and after-school activities. He used the pages to have virtual sex with men around the world.

After two years, the church’s pastor — about to move on to a new post — was compiling information for his successor about his congregation.

16

DAYTON LAWYER

SPRING 2014

probation while receiving counseling. He had to surrender his computer.

Connecting the substantial damage caused by cybercrime to a perpetrator is often difficult if not impossible. Brenner considered the case of Aaron Caffrey, who lived in England with his parents. A chat room user made anti-American comments against Caffrey’s online American girlfriend.

An attack was launched from Caffrey’s computer upon the computer of the person making the perceived insult.

The attack had a large incidental effect.

Just nine days after the terrorist attacks of 9/11, the computer system of the Port of Houston — a system essential for navigating ships in and out of the world’s eighth busiest harbor — was shut down by an external computer attack.

Caffrey did not contest that the attack came from his computer. The defense claimed that, although his computer launched the attack, he did not. “Someone” must have installed malicious software that

took over the computer without his knowledge and then erased all traces of it. He was acquitted.

Often a crime committed across borders does not even come to trial. “A U.S. arrest warrant,” Brenner wrote, “is worthless in any other country, in the same way that a French warrant has no effect in the United States.”

There are, she noted, formal devices to obtain evidence from other countries, such as letters rogatory, treaty requests and requests for assistance under executive agreements. Letters rogatory, however, can take years. Requests under a mutual assistance treaty are faster but still can take months or longer. Assistance under executive agreements, which do not have to be approved by Congress, have been used primarily to stem narcotics trafficking; they are unlikely to be used for attacking cybercrime. Informal cooperation is faster although dependent upon networks of individuals willing to aid each other.

Even if evidence is gathered, bringing the accused to trial can be difficult. A country with an extradition treaty with another may be reluctant to give up one of its citizens to be prosecuted for a crime that may not be seen as serious when it occurs somewhere else. And a country without an extradition treaty has no legal obligation.

For an example of how complex a situation can be, Brenner pointed to the Rome Labs case. The Rome Air Force Development Center at Griffiss Air Force Base in New York serves as, in the words of a Senate report, “the Air Force’s premier command and control research facility.” In the mid1990s, hackers installed programs on the labs’ networks and collected passwords, suggesting that they could access the labs’ databases. Four weeks of investigation followed a cybertrail through South Africa, Mexico and European countries before finding in London one of the two perpetrators: a 16-year-old music student. Two more years of work led to the 21-year-old son of a police officer. The 16-year-old, prosecuted in England, pled guilty to 12 counts of violating the Computer Misuse Act. Charges against the other were dropped.

A more recent case illustrates the difficulty when a cybercrime originates in a country with which the U.S. does not have an extradition treaty. Hackers broke into the systems of 40 U.S. companies, including banks, and tried to coerce the companies into hiring them as “security consultants.”

One company responded by hiring its

own cybercriminals to counterattack; the counterattack failed as it was deflected into an attack on the other companies. Another company refused to pay the $500,000 “consulting fee.” Its website was knocked offline.

The company went to the FBI, which suggested drawing out negotiations with the hackers. One of the hackers, in an apparent attempt to land a job, sent his resume. That incautious act helped the FBI trace the source of the attack to Russia, with whom the U.S. does not have an extradition treaty.

Russia ignored requests that it detain the hacker. So, he and a partner were invited to come to the U.S. for a job interview. They did and gladly demonstrated their hacking skills; this allowed the FBI to record their work, gaining access to their Russian server. They were arrested. The two argued their Fourth Amendment rights had been violated since the FBI did not have a search warrant. A federal judge, however, ruled the search took place in Russia, the site of the server, not in the U.S., so the Fourth Amendment did not apply. The two went to jail.

Russia requested that the FBI agent be surrendered for prosecution in Russia. According to Brenner, “the United States has apparently never responded.”

What other options did the FBI have?

Kidnapping is a legal, though hardly practical, option, Brenner noted. An 1886 Supreme Court ruling, recently upheld, said “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’”

Law enforcement has serious problems in its attempts to counter cybercrime. Law and law enforcement evolve. Technology changes faster.

For millennia before the creation of the Metropolitan Police in 19th-century London and its descendants worldwide, policing was the work of either the military or of amateurs. In England over the centuries, a “hue and cry” aroused the citizenry to pursue a criminal. Over time experiments were made with private police forces until in 1829 Sir Robert Peel created the London Metropolitan Police. That model remains today.

But it was created with assumptions that fall apart in cyber reality. It assumes real-world crime, which Brenner pointed out, by being committed in a tangible physical environment, has four characteristics: proximity, scale, physical constraints,

Privacy, anyone?

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated …

Then, one might ask, “Why does it seem like everybody on earth can read my email?”

The Fourth Amendment may be the same as it was in the 18th century, but the world is different. So what is the state now of the right of Americans against unreasonable search and seizure?

Susan Brenner, in her book, Cybercrime: Criminal Threats from Cyberspace, summarized the history of the application of the Fourth Amendment and looked at issues presented by cyber-reality.

Until the 15th century in England, government searches of private property were, Brenner wrote, almost unknown. In the late 15th century, some guilds were authorized to search private property to enforce their regulations. A century later, the Court of the Star Chamber gained the authority to search and to seize books unlawfully printed. Heretics and political dissenters as well as printers became targets.

In the 18th century, courts became more likely to side with the citizens, and an Englishman’s home did become more like a castle.

That an exception seemed to be made for citizens residing in the American colonies was a cause of both revolution and the adoption of the Fourth Amendment to the U.S. Constitution. For a century, American courts had little trouble in applying the amendment; it obviously applied to searches of people and places.

In 1876, Congress passed a law to protect people from being defrauded by crooked lotteries using the U.S. mail. A citizen challenged the constitutionality of the law. He lost, but the Supreme Court did hold that sealed mail (as distinct from items such as newspapers) was fully guarded from inspection “as if they were retained by the parties forwarding them in their own domiciles.”

Also in 1876, Alexander Graham Bell invented the telephone. Soon police began

and patterns. It’s hard to physically attack or physically rob somebody who is halfway around the world. Real-world crime is often on an old-fashioned one-to-one basis.

Real-world crime occurs in a specific place; the criminal has to be familiar with it, often

tapping phones; this was seen — since calls went through an operator — as akin to reading someone’s postcard, not opening a sealed letter. By the 1920s, however, operators were replaced by automated systems.

Roy Olmstead, a convicted bootlegger, appealed because wiretap evidence was used to convict him. A Supreme Court majority upheld the conviction; the man’s home had not been entered.

Justice Louis Brandeis dissented. “He was able to grasp,” Brenner wrote, “the significance of the new technology.”

Brandeis wrote: “The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may … be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose … the most intimated occurrences of the home. … That places the liberty of every man in the hands of every petty officer.”

In 1965 the Supreme Court overturned the Olmstead decision. A 1979 decision, however, ruled that the government could use devices to record phone numbers a person calls and numbers from which calls come to that person. Justice Thurgood Marshall dissented, as does professor Brenner.

Then came email.

It’s not like a letter. Unless one encrypts email (and, Brenner notes, few do outside of the military and intelligence communities), email is treated as a postcard. Since the same technology that scans for spam and obscenity can scan for other content, the government, employers and others can have easy access to the content of email.

The government would need a court order or subpoena. Employers can generally just rely on employees to click “I agree” on email policies. And the material in the “to” and “from” fields and the data generated as the email is transmitted have no Fourth Amendment protection whatsoever.

The Internet is not one’s physical castle.

And its legal bulwarks are an evolving field.

has to be there. And much real-world crime is tracked because criminals repeat actions; they have patterns.

Cybercrime is automated. “Perpetrators,” Brenner wrote, “can commit thousands of crimes quickly and with little ef-

SPRING 2014

DAYTON LAWYER

17

Awaiting attack

fort.” And with little regard “Companies work to boundaries. with others,” she said, “This is a very complaWith law enforcement “essentially cybercent country,” Susan Brenner response to cybercrime, mercenaries who could said. “Europe is not. They’ve Frankian said, “there is no counterattack. But an been attacked, invaded and time for strategy or analy‘eye-for-an-eye’ could bombed by neighbors. We’ve sis. An attack can come become cyberwar.” gotten used to being bordered from anywhere. And you That’s partly because

by Mexico and Canada.” don’t see it coming.” finding the target can And having a big ocean At the same time, be difficult. The hacker on each side and the world’s “cybercrime has not in the Rome Labs most powerful air force altered people’s inclinacase, Brenner pointed overhead can also bolster our tion,” Brenner wrote, “to out, “routed his attack feeling of security. rape, rob or kill in the through a North Korean Brenner does not worry, however, about the country being physireal world.” Added to nuclear facility. Hacking cally invaded but about its citizens being the victims of cyberattacks the increased quantity of back would have attacked launched by criminals, often from the security of havens in rogue states. crimes are enforcement that.”

“It’s amazing how vulnerable we are,” said Aaron Wiener ’14 (picdifficulties peculiar to Frankian, in her tured above), a student this past fall in Susan Brenner’s Cybersecurity cybercrime. The police research this past term, and National Security Law class. “Security is expensive, and the threat is often aren’t involved looked at an alternative not perceived.” until well after the crime to counterattack: empowEven before entering UDSL, however, Wiener began trying to spread is committed and the trail ering the government to awareness of the threat and do something to improve defenses against it. has become cold. Evidence help companies establish “Accountants often send unsecured email and faxes,” he said, “an is fragile and volatile. And a good defense. She identity thief ’s dream come true.” the hesitancy to report cyenvisions the possibility Wiener, who was a communication major at the University of Illibercrime makes establishof an overarching federal nois, joined forces with friends who were knowledgeable about accounting patterns different. agency not only to reguing to found DocPalApp.com, an application that provides accountants What can be done? late, she said, but also “to a secure way to transmit documents. He hopes that the app having been Brenner noted that reach out to businesses, developed specifically for accountants will give it a market edge over efforts have been made financial institutions and more generic devices. by several organizations. utilities to see where they Whatever method accountants or other business people choose, “we International studies of are vulnerable, to see have to say to citizens,” Brenner said, “protect yourselves. And a lot of cybercrime have been what they need in case of businesses are coming to realize this.” done since the 1980s. The cyberattack.”

Council of Europe drafted Such an approach a cybercrime treaty to may not be as grand a harmonize national laws. The United Naplan as rewriting laws in some 200 nations Some solutions offered to combat cytions passed a resolution. The G8 and other or hiring bands of mercenary hackers, but bercrime do not focus on the law. Frankian groups of nations have called for consistent as Brenner wrote, “Encouraging cybercrime this year did research on cyberdefense. The laws. prevention is not a particularly exciting option of offensive measures (“hacking But because of nations’ concerns for strategy, but it would probably make cyberback”), though illegal, has recently gained their sovereignty, it is unlikely they will criminals’ lives more difficult [and] it could momentum and is supported by U.S. cede power to a central policing agency. increase the effectiveness of law enforcecompanies who have been the victims of INTERPOL, for example, has a cybercrime ment efforts.” destructive and costly cyberattacks. initiative but focuses on supporting law enforcement at the national level.

A treaty, the Convention on CyberFor further reading crime, was in 2001 presented to countries Students set up a fake social media account in the name of their assistant principal. They use for ratification. By the time of Brenner’s the account to invite children to communicate with, the children think, the assistant principal. The 2010 book, it had been signed by 46 counchildren are then bombarded with porn. tries and ratified by 20, the United States The assistant principal sues in federal court. and 19 European countries. Russia refused He loses. to sign it. And many countries aren’t just After all, the judge noted, even Facebook admitted that nearly 10 percent of its users were “dupassively opposed; some operate like the plicates, false or undesirable.” island havens for sea-going pirates of the The assistant principal “can presumably try suing in state court,” Susan Brenner wrote in her blog 1600s. Having your nation’s banking operaCYB3RCRIM3 (cyb3rcrim3.blogspot.com), where she has analyzed that case and hundreds of others in tions secret may not be something pleasdetail. ing to other nations — but it can be very Brenner, Samuel A. McCray Chair in Law, has also published several books and journal articles on profitable. cybercrime (see www.udayton.edu/directory/law/brenner_susan.php).

18

DAYTON LAWYER

SPRING 2014

ROUNDTABLE 1977 CAROLINA LOMBARDI is an advo-

Practice’ and ‘Building a Practice in a Changing Environment’ at the National Consumer Law Center’s 22nd annual Consumer Rights Litigation Conference in Washington, D.C., Nov. 7-10, 2013.”

cacy director primarily dealing with foreclosures with Legal Services of Greater Miami in Florida. She FRANK GERACI JR. ’77 assumed has worked to the office of Judge of the U.S. secure equal District Court justice for for the Western the poor and District of New marginalized York in January for more than 2013. President 30 years.

Barack Obama

TONY MUTO was featured with WAYNE OZZI in an article on SILive. com, published by the Staten Island Advance.

Tony, Wayne and their families got together on Staten Island, N.Y., for Thanksgiving in 2012.

Tony is general counsel at Evans Industries in Cincinnati.

nominated Frank in May was named an 2012 for the seat vacated by Judge Officer of the David G. Larimer, and the U.S. Order of the Senate voted to confirm Frank as British Empire judge Dec. 13, 2012. Frank is a forin the New mer National Alumni Association Year Honours president and hosted UDSL Dean List for 2013.

Paul McGreal in Rochester, N.Y., New Year Honin summer 2013 during the dean’s ours is a part alumni road trip. of the British WAYNE OZZI honors system was featured in which new members of orders with TONY MUTO in an article of chivalry and recipients of other on SILive.com, published by the official honors are named. Terry led Staten Island Advance. Wayne, Tony the team responsible for all legal asand their families got together on pects of the 2012 London Olympics’ Staten Island, N.Y., for Thanksgivoperations, including meeting the ing in 2012. Wayne is a Court of terms of the host city contract with Claims judge and acting justice on the International Olympic Committhe New York State Supreme Court. tee, implementing sponsorship and supply contracts and protecting the London 2012 brand. She delivered the commencement address at THOMAS ANDERSON is a partner UDSL’s spring 2013 graduation at Anderson & Tyner in Cleveland ceremony.

Heights, Ohio, a consulting firm focused on ethics, leadership and governance in nonprofit institutions. He is also an adjunct RONALD BURDGE lives in Dayton. professor of marketing and policy He is the founder of Burdge Law studies at the Weatherhead School Firm and writes, “I’ve had several of Management at Case Western Rerecent speaking engagements. I serve University, where he teaches presented a seminar on motor veethics in the doctor of management hicle sales fraud laws at the Florida program.

State Bar annual conference June DANIEL J. HERLING joined Mintz 29, 2013 a seminar on practicing Levin as a member at the firm’s San consumer law at the Indiana Bar Association’s annual CLE conferFrancisco office. ence Aug. 22, 2013 and a seminar on DEBORAH INDIVINO is an attorney lemon motor vehicle and consumer in Spencerport, N.Y. fraud laws at the Michigan State Bar Association Consumer Law Section annual conference Sept. 19, 2013. I also presented seminars titled ‘Marketing Your Consumer Law THOMAS DOVER, a managing

TERRY MILLER

1979

1978

1980

partner at Gallagher Sharp, was named by Cleveland Best Lawyers as Personal Injury Litigation – Defendants Lawyer of the Year for 2014.

Thomas became a partner in 1987 and has served as the chair of the firm’s transportation practice group and as a member of the executive committee. He currently serves on the executive committee of the National Association of Railroad Trial Counsel.

JEFF IRELAND was nominated for

fellowship in the Litigation Counsel of America by the organization’s advisory board. The LCA is a trial lawyer honor society whose membership is limited to less than one half of one percent of American lawyers. Ireland, a founding partner of Faruki Ireland & Cox in Dayton, has been trying business cases for more than 30 years. His practice includes advertising and trademarks, products liability and employment. Ireland will be joining the UDSL advisory council in spring 2014.

BRUCE MARTINO is associate legal

counsel for GOJO Industries Inc., the makers of Purell hand sanitizer and other skin care products. He lives in Springboro, Ohio, with his wife, Ann. Their daughters Liz, a graduate student, and Melissa, a freshman, are attending The Ohio State University. In his spare time, Bruce trained for the 2013 New York City marathon.

1981 WILLIAM BECKER lives in Dublin,

Ohio. The Ohio State Bar Association reappointed him chair of its paralegals committee. William is presently a principal trial attorney with the Ohio Attorney General’s Office. A faculty trainer for the National Association of Attorneys General, Becker has also taught trial practice at The Ohio State University School of Law and at Capital University Law School’s paralegal program. He is a frequent lecturer on trial practice and evidence.

MICHAEL BITNER retired from

the Office of Chief Counsel for the Internal Revenue Service in October 2013 after 32 years of service.

Michael has served as a docket attorney, district counsel and for the last 13 years, associate area counsel (Small Business and Self-Employed Division). Michael spent the first 15 years of his career in Springfield, Ill., and the last 17 in St. Louis. He also bids a fond farewell to all the members of the “Magnificent 7,” a.k.a., his study group.

DIANE KAPPELER DEPASCALE lives in Dayton. The Ohio State Bar Association reappointed her chair of its Family Law Committee. Diane has represented clients in seven Ohio appellate districts and 25 counties since 1981, and she’s been an OSBA-certified family relations law specialist since 2005.

MARK LANDERS was honored at the Chancery Club of Dayton’s annual law day celebration May 1 for his excellent work and service to the legal profession. Mark received an award for his work as a mediator in the common pleas court general division.

NANCY ROBERSON was honored

by the Ohio Diversity Council as one of the recipients of the 2013 Ohio Leadership Excellence Award.

The award was presented at the 2013 Northeast Ohio Multicultural Leadership Summit. Nancy is an OSBA board-certified specialist in estate planning trust and probate law.

1982 PAUL JUHASZ of the Houston-based

Juhasz Law Firm announced a strategic alliance with Cavelier Abogados, a commercial and intellectual property law firm headquartered in Bogota, Colombia. Both firms will work together with universities and companies in Colombia to monetize their patents and IP assets.

JANE LYNCH has been elected to the

Federation of Defense & Corporate Counsel. To be selected, a candidate must be nominated by two current members and go through a rigorous vetting process. Membership invitations are limited to 1,000 U.S. member attorneys in private practice. Jane is an attorney with Green & Green Lawyers in Dayton.

SPRING 2014

DAYTON LAWYER

19

1983

1986

CHUCK BALDWIN and his wife,

JOSEPH DENNIS lives in Wilming-

Lisa, live in Carmel, Ind. Chuck is an Indianapolis-based shareholder and member of the board of directors at Ogletree Deakins and has been elected to the Indiana Legal Foundation’s Legal Advisory Committee. He will serve a one-year term on the 12-member committee. In addition, the BTI Consulting Group recently named him a 2013 Client Service All-Star. Chuck has more than 25 years of experience as an advocate for management in all aspects of labor and employment law.

THOMAS HURNEY JR. was recently

nominated to become a member of The Fellows of the American Bar Foundation. Membership in this foundation is limited to less than one percent of lawyers admitted to practice in each jurisdiction of the United States. Thomas handles the litigation and trial of cases involving serious personal injury and wrongful death. His practice includes industrial-related injuries and exposures, medical professional liability, products liability and pharmaceuticals, including class and mass tort actions. Thomas is a Fellow of the American College of Trial Lawyers and an Advocate of the American Board of Trial Advocates. He has practiced with Jackson Kelly PLLC in Charleston, W. Va., for 30 years since graduating from UDSL, and manages the firm’s Health Care & Finance Group.

CHRISTOPHER MCGRATH was honored at the 2013 Annual Red Mass, hosted by the Catholic Lawyers Guild of Nassau County and held at St. Joseph Roman Catholic Church in Garden City, N.Y., where he lives with his wife, Monica. He is a partner with Sullivan Papain Block McGrath & Cannavo, P.C.

1984 SUSAN BLASIK-MILLER was in-

ducted as a Fellow into The Ohio State Bar Foundation. The OSBF inducted 47 attorneys as Fellows at the Thomas J. Moyer Ohio Judicial Center June 5, 2013. Chief Justice Maureen O’Connor and OSBF President Thomas D. Lammers presided over the ceremony. Blasik-Miller is an attorney with Freund, Freeze & Arnold.

1985 THOMAS O’DIAM was appointed by Ohio Governor John Kasich to serve as a judge on the Greene County, Ohio, Probate Court.

20

DAYTON LAWYER

SPRING 2014

ton, Ohio. He writes, “I recently retired after serving 23 years as a public defender for Clinton County, Ohio, including 20 years as the lead defender. I was recognized for my service at a retirement party, during which Clinton County Commissioner Pat Haley presented me with a proclamation from the board of commissioners. The Ohio Senate also presented me with a written recommendation. I am continuing in my private practice and spending more time with my two children and three grandchildren. I submit this in recognition of all who perform work as public defenders for little financial reward.”

CANDICE KOMAR lives in Pitts-

burgh. She was selected for inclusion in the 2014 edition of Best Lawyers in America, the oldest peer-review publication in the legal profession.

This is Candice’s seventh year on the list. She is a partner at family practice firm Pollock Begg Komar Glasser & Vertz LLC.

DEBBIE LIEBERMAN was named one of the 12 most influential people in the Dayton region in 2012 by the Dayton Business Journal. She also was re-elected to the Montgomery County, Ohio, Board of Commissioners in the 2012 general election.

In addition, Debbie was honored as one of the Dayton Daily News’ 2012 Ten Top Women.

DANIEL UTT joined the Cincin-

nati law firm Keating Muething & Klekamp as a partner and leader of its real estate practice group.

He has experience with a range of real estate transactions, including retail, commercial, residential and mixed-use developments; office, commercial and industrial building projects; commercial real estate transactions; and zoning and land-use planning matters. Dan is a licensed title insurance agent and is an authorized agent for Riverbend Commercial Title Agency, a wholly

owned subsidiary of KMK.

1987 WILLIAM DULANEY III lives in Plain

City, Ohio. The Ohio State Bar Association reappointed him chair of its construction law committee.

William is an attorney and principal with Dulaney Law LLC in Dublin, Ohio. During his 25-year practice, he has represented public and private owners, general contractors, subcontractors and material suppliers in Ohio and Kentucky in the areas of construction, safety and traditional labor matters.

DAVID LEFTON has been appointed

to the Ohio State Bar Foundation membership committee. OSBF members are exceptional lawyers who have demonstrated their dedication to the highest ideals of the legal profession and the welfare of their community. In addition, David has been appointed to the Ohio State Bar Association Council of Delegates screening committee, which, among other duties, considers legislative proposals from OSBA committees.

RANDI SILVERMAN was named a

Worldwide Who’s Who Professional of the Year in family law. She is founding member of the law firm Silverman, Tokarsky, Forman & Hill in Johnstown, Pa.

1988 JAMES CASEY JR. is the pre-award

team manager in the office of sponsored programs at Carnegie Mellon University. He is also on the advisory committee for the International Network for Research Management Societies Congress taking place in April 2014 in Washington, D.C.

1989 IRENE DVORACZKY BELL lives in

Hilliard, Ohio. She is a financial representative with Northwestern Mutual in Columbus, Ohio. She

1979

1991

BETH HEMPEL — Aug. 28, 2012

RACHEL HUTZEL — Aug. 25, 2012

1980

1994

DOUGLAS GILLISS — May 18, 2012

RONALD SEBREE — June 20, 2012

1983

2005

CLAYTON NAPIER — Aug. 14, 2013

SEAN PATRICK O’BRIEN — Sept. 22, 2013

1984

2014

M. DANIEL HENRY — Jan. 16, 2014

MATTHEW CORNING — Oct. 18, 2013

CONNIE PRICE — June 13, 2013

1990 MICHAEL DEFFET was honored

at the Chancery Club of Dayton’s annual law day celebration May 1, 2013, for his excellent work and service to the legal profession. Michael received an award for his work in the juvenile courts division.

MARY KATE HUFFMAN was named

president of the Dayton Bar Association in June 2013. Huffman replaces Paul B. Roderer Jr. ’94. She is an atorney with Taft Stettinius & Hollister in Dayton.

JEFF MULLINS was selected for inclusion in The Best Lawyers in America 2014.

RAYMOND ROMERO was appointed

to the Fifth Judicial District Court bench by New Mexico Gov. Susana Martinez, filling the vacancy caused by the retirement of the Honorable J. Richard Brown. Romero served as chief deputy district attorney for the Fifth Judicial District Attorney’s Office, where he worked since 1995.

He has also served as a member of the Eddy County Magistrate Court DWI/Drug Court, the Child Abuse Multidisciplinary Team of Eddy County and on the board of the Eddy County Battered Family Shelter.

1991 LANCE GILDNER was selected

for inclusion in The Best Lawyers in America 2014.

JACK MALLEY has written a book, Meet The Lunatics Who Run Your Kids’ Sports Leagues, A Coach Dad’s Take On The Wacky World Of Youth Sports.

1993 KATHY DUFFY BRUDER and PAUL BRUDER JR. ’94 live in Camp Hill,

Pa., with their two daughters, ages 8 and 6. Kathy is the deputy chief of staff for Pennsylvania Gov. Tom Corbett.

JAMES CULLEN JR. has been ap-

In memoriam

1990

would love to hear from friends at irene.bell@nmfn.com.

pointed to the board of directors of Cristo Rey Philadelphia High School, a new private college preparatory school for low-income students. James is a shareholder of the Cozen O’Connor law firm and a member of the firm’s subrogation and recovery practice group. He works in the firm’s Philadelphia office.

MATTHEW SORG is a principal

with Pickrel Schaeffer and Ebeling Co. Matthew has been with the firm for more than five years and he has practiced law for nearly 20

Reminger Co. LPA.

Tech-savvy

JEFF REZABEK received the indi-

STEPHANIE KIMBRO ’03 Working at a traditional law firm wasn’t for Stephanie Kimbro, so she created a software program, started her own law firm and paved the way for Virtual Law Offices (VLOs).

Kimbro, an adjunct professor, is bringing lawyering directly to the public and teaching others how they can use technology and online delivery to increase access to justice for those who have trouble affording traditional lawyer fees.

“I would have to turn away prospective clients due to their income,” says Kimbro, who initially took a job with a traditional law firm in North Carolina after graduation. “It was frustrating for me to tell people ‘we can’t help you.’”

From that experience, she identified a need in the marketplace for affordable legal service in which clients could seek help from a lawyer in a secured online environment.

“My biggest mission is access to justice,” says Kimbro. “I think that’s the only reason I’m still in the legal profession. We have a horrible gap in our country, and I see alternative forms of delivery as one solution to that problem.”

She created a software program, Virtual Law Office Tech, and used it to start her own company and the first virtual law office in North Carolina.

“A year later I had all these lawyers calling me saying, ‘I want to do the same thing,’” says Kimbro. “There was a need not just for consumers, but also, for lawyers.”

The allure of flexibility is another reason why virtual law practice has really taken off, Kimbro says. A Chicago-based company, Total Attorneys, acquired her software in 2009, and her platform is still in use.

“Ignore the naysayers,” says Kimbro. “Everyone said that people will never buy legal services online.

You need to listen to the people you want to help, specifically, the clients.”

Aside from teaching several UDSL classes related to virtual law through a distance learning platform, Kimbro is also a member of Burton Law LLC, a virtual law office. There, she focuses on online delivery with a virtual component for the firm and delivers small business consulting and estate planning through online services. Additionally, she is secretary of the law practice division of the American Bar Association and is on the standing committee on the delivery of legal services.

—Natalie Kimmel ’13

years. He offers legal services in all types of domestic relations matters including dissolution, divorce, legal separations, custody, child support, alimony, property division, prenuptial agreements and parental rights. Matthew also helps small businesses with formation, growth strategies and purchasing and selling agreements. “I take pride in my work, but I am most pleased with where the practice of law is taking me on a client level as I can see significant changes for my clients, advise them of those changes in an incredibly difficult time, and assist them to anticipate and adapt with the new rhythm of their lives,” he said.

1994 PAUL BRUDER JR. and KATHY DUFFY BRUDER ’93 live in Camp Hill, Pa., with their two daughters, ages 8

and 6. Paul is an environmental lawyer with Rhoads & Sinon in Harrisburg, Pa. He writes, “Brownfield remediation projects are my specialty and favorite.”

1996 RON RAETHER of Faruki Ireland

& Cox in Dayton joined a distinguished panel of speakers addressing data security issues currently facing businesses at the annual Net Diligence Cyber Risk & Privacy Liability Forum June 6-7, 2013, in Philadelphia. Ron’s panel focus was dissecting a data breach claim.

1997 SARAH OTTE GRABER was elected to the Wood Herron & Evans executive committee. The threepartner committee is responsible for overseeing the firm’s strategic

planning and leadership, as well as overall management.

LARA MANN is the executive direc-

tor of the new Lugar Academy at the University of Indianapolis. Lara, special assistant to the university’s President Robert Manuel, has led UIndy’s Lugar Center for Tomorrow’s Leaders, the former name of the Lugar Academy, since its formation in 2007. Previously, she served as case law editor for the LexisNexis database, management development specialist for the Ohio School Boards Association and field investigator for the Ohio Civil Rights Commission.

SHELBY MCMILLAN was named

to the 2013-14 class of the Ohio Women’s Bar Foundation Leadership Institute. The program was developed in 2011 to cultivate, promote and enhance the leadership skills of women attorneys across Ohio. Shelby is an attorney with

vidual juvenile justice award from the Image of Hope 2013 Youth Advocacy Awards. The winners are selected for outstanding service in youth advocacy for the greater Dayton area.

1998 ROBERT HOJNOSKI is the manag-

ing partner of the Cincinnati and Fort Mitchell, Ky., offices of Reminger Co. LPA. His practice primarily focuses on the representation of medical and non-medical professionals and business owners in disputes involving complex and catastrophic damages. He has first chaired more than 30 jury trials and approximately 60 arbitrations and handled to conclusion about 1,000 civil lawsuits in various state and federal courts.

JOAQUIN MARTINEZ lives in

Orlando, Fla. Martindale-Hubbell recently gave him an AV rating, the highest an attorney can receive, in honor of his legal expertise.

Joaquin is a partner in the real estate transactions, development and finance practice at Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

SCOTT MCBRIDE of Chicago firm

McAndrews, Held & Malloy was featured on The Daily Show Sept. 12, 2013, to discuss biotech patents.

JASON MILLER is an intellectual

property partner in the Roetzel firm in Orlando, Fla. Previously, Jason was counsel with Lowndes, Drosdick, Doster, Kantor & Reed, P.A., and co-chair of that firm’s intellectual property group.

DAVID MONTGOMERY of Pickrel,

Schaeffer and Ebeling in Dayton published “Do You Qualify to Save on Property Taxes?” The article discusses how Ohio recently changed the Homestead Exemption Program. The homestead exemption provides a qualified homeowner savings on real property taxes.

1999 CHRISTOPHER EPLEY was awarded

the Steven E. Yuhas Alumni Special Service Award. The award recognizes a UDSL graduate’s “extraordinary service and contributions of time, talent and financial assistance.”

Dean Paul McGreal presented the award to Chris June 7, 2013. Chris also received the Mary Clark Spirit of Adoption Award from Catholic Social Services of the Miami Valley at its annual leadership luncheon

SPRING 2014

DAYTON LAWYER

21

April 18, 2013. Chris serves as the adoption attorney for CSS and works to secure stable permanent placements for children.

JASON GERSTEIN and SHARON DIAMANT GERSTEIN welcomed

Henry Jacob (9-24-12). Henry joins big brothers Justin and Joshua and big sister Hayley at home in Potomac, Md.

MATTHEW HARPER moved to SNR Denton, where he is a partner in the Dallas office. He practices in the IP litigation and technology sections.

RIA FARRELL SCHALNAT published “Will Google Break the GPL?” in the IPO Law Journal. The article discusses the confusion surrounding open-source licensing. Ria serves as of counsel at Dinsmore, where she specializes in patent and licensing matters related to computer technologies.

JENNIFER WILSON lives in Colum-

bus, Ohio. The Ohio State Bar Association appointed her chair of its professionalism committee. Jennifer practices in the Columbus office of Freund, Freeze & Arnold, where she is a shareholder, and focuses her practice on civil litigation with an emphasis on insurance coverage, personal injury defense and governmental defense.

2000 BRETT BURNEY was featured in the

article “Transformative Tech Tips” in the September 2013 issue of the ABA Student Lawyer. He is founder and principal of Burney Consultants LLC, which specializes in electronic discovery, litigation support and legal technology. Brett’s two tech tips were to leverage the iPad as a digital file folder and to become more productive through better use of calendar, email and task lists.

MICHAEL KENDALL lives in Jack-

sonville, Fla. He writes, “I’ve been named a 2013 Florida Rising Star lawyer. Each year, less than 2.5 percent of Florida attorneys receive this honor. I am an associate at Marks Gray law firm, with a specialty in civil litigation defense.”

ERIC LUDWIG lives in Louisville,

Ky. He is a newly elected partner in the Atlanta office of Hawkins Parnell Thackston & Young LLP. Eric concentrates his practice in the areas of product liability, premises liability, business, toxic tort and environmental litigation. He serves as HPTY’s primary litigator in Kentucky and as a member of several teams that operate as national coordinating counsel.

22

DAYTON LAWYER

SPRING 2014

The accidental attorney TED WOOD ’98 After serving in the U.S. Air Force for 14 years, Ted Wood planned to take an exit bonus to work full time at his own business, Electronic Innovations Inc., which involved selling home entertainment electronics at the wholesale and retail level to other businesses and individuals.

While helping his former wife study for the LSATs, Wood, a retired lieutenant colonel, became interested in law. But he still planned to run his own business. He signed up to leave the Air Force and chose a separation date 18 months away. During that time, his business fizzled out. After talking extensively with Cheryl Washington, the lawyer who worked for the church he attended, Wood’s interest in law grew, and he enrolled at the University of Dayton School of Law. “Every chance she got, she was talking to me about the law and becoming a lawyer,” recalls Wood. He even shadowed her for a day at her practice in downtown Dayton. “The more I did that, the more I began to see that I had an interest in law.”

Wood now is a partner in Parks IP Law LLC in Washington, D.C., working as a patent attorney. “I help clients identify, secure and enforce patent rights. One of the reasons I enjoy this is because it allows me to continue to feed my engineering curiosity. Another reason is, I genuinely like tinkering and understanding how technical things work.” Wood serves as an adviser for UD’s program in law and technology, and he is an adjunct professor at Northern Virginia Community College.

His 24-year Air Force career behind him — he served in the Air Force reserves for 10 years after leaving active duty — Wood now enjoys doing pro bono work for veterans, handling mostly denial of benefits cases to the Court of Appeals for Veterans Claims.

“This not only allows me to work with veterans and use whatever skills and insights I have to help them in any way possible, it exposes me to an area of law I otherwise would not have experienced,” says Wood.

—Michele Wojciechowski

2001 JENNIFER GETTY was honored at the

Chancery Club of Dayton’s annual law day celebration May 1, 2013, for her excellent work and service to the legal profession. Jennifer received an award for her work in the domestic relations area.

ADDIE KING lives in Urbana, Ohio.

She writes, “Musa Publishing has released my first novel, The Grimm Legacy, in e-book format. It’s about a first-year law student at the UD School of Law. My work has also been published in an anthology Mystery Times Ten, from Buddhapuss Ink, and my essay ‘Building Believable Legal Systems in Science Fiction and Fantasy’ appears in Eighth Day Genesis: A Wordbuilding Codex for Writers and Creatives.” Since writing this note Addie has published the second novel in her series and is working on the third.

MATTHEW SCHRADER was elected

president of the Central Ohio chap-

ter of the Claims and Litigation Management Alliance. He will serve through July 2015. The CLM promotes and furthers the highest standards of claims and litigation management and brings together thought leaders in both industries. Matthew is a shareholder in Reminger’s Columbus office. He focuses his practice in the areas of professional liability, commercial premises liability, claims for product liability, commercial litigation, employment law, civil rights and general casualty defense in cases involving catastrophic personal injury.

DANIEL WOLFF was elected

LUCAS WILDER was honored at the

JENNIFER BROGAN has been

Chancery Club of Dayton’s annual law day celebration May 1, 2013, for his excellent work and service to the legal profession. Lucas received an award for his work as appointed counsel in the common pleas court general division for felony cases.

LISA WISEMAN was selected for

inclusion in The Best Lawyers in America 2014. She is an atorney with Taft Stettinius & Hollister in Dayton.

partner at Crowell & Moring. He is a member of the environment and natural resources group and is resident in the firm’s Washington, D.C., office. His practice includes appellate and trial litigation in a number of areas of environmental and natural resources law, including mine safety and health, public lands, and Superfund, as well as general litigation and administrative procedure.

2002 named a partner at Bieser, Greer and Landis in Dayton. Jennifer’s primary areas of practice include family law and general litigation.

She has been listed in Ohio Super Lawyers as a “Rising Star.”

TABITHA JUSTICE was named one

of Dayton Business Journal’s 40 under 40 outstanding local professionals in 2013. She is an attorney with Subashi.

2003

ERIN RHINEHART was named one

DAVID WHALEY was elected partner

at Dinsmore, where he is a member of the tax, benefits and wealth planning practice group in the corporate department. Working in the firm’s Cincinnati office, David assists companies in all areas of employee benefits, including design, implementation and compliance in providing tax-qualified and nonqualified deferred compensation arrangements, health and welfare arrangements and employee fringe benefits. He also has extensive experience in the area of employee stock ownership plans and assists employers in designing health care programs to comply with the Affordable Care Act.

2004 ANGELA HUGHES was named one

of the Top 10 30-Somethings by the Association of Corporate Counsel in 2012. Angela and her husband, Jeff, have been married since 1997 and have three children, Bailee (14), Steven (8) and Jack (1). Hughes said, “Bailee basically attended law school with me because she turned 2 the day I started. She was with me in the car listening to law CDs and with me at home doing legal flash cards. Now, as a high schooler, she argues like a girl born to litigate!”

TAMI KIRBY was named to the

2013 Ohio Super Lawyers Rising Stars list. Kirby practices bankruptcy and creditor/debtor rights law with Porter Wright Morris & Arthur LLP in Dayton. Super Lawyers recognizes attorneys who have distinguished themselves in their legal practice.

MATTHEW MOLLOY was elected

partner at Dinsmore, where he is a member of the intellectual property prosecution and opinion practice group. He works in the Dayton office. Matthew is admitted to practice before the U.S. Patent and Trademark Office and has extensive experience in the preparation and prosecution of patents in the U.S. and abroad. Matthew manages international patent portfolios and his practice encompasses a variety of technical areas, such as chemical/ chemical engineering, materials, pharmaceuticals, biotechnology, mechanical engineering, software and business methods.

TERRY POSEY was named one of

Dayton Business Journal’s 40 under 40 outstanding local professionals in 2013. He is an attorney with Thompson Hine.

of Dayton Business Journal’s under 40 outstanding local professionals in 2013. She is an attorney with Faruki Ireland & Cox.

TYLER STARLINE was named one of Dayton Business Journal’s 40 under 40 outstanding local professionals in 2013. He is an attorney with Finlay, Johnson & Beard.

AMY WELLS was named to the

2013 Ohio Super Lawyers Rising Stars list. Amy founded a boutique consumer protection litigation firm in 2010 in Centerville, Ohio. She also serves as the section chairperson for consumer rights for the Ohio Association for Justice, a plaintiff’s organization dedicated to protecting the rights of the injured in Ohio.

2005 ADAM ARMSTRONG was inducted

as a Fellow into The Ohio State Bar Foundation. The OSBF inducted 47 attorneys as Fellows at the Thomas J. Moyer Ohio Judicial Center June 5, 2013. Chief Justice Maureen O’Connor and OSBF President Thomas D. Lammers presided over the ceremony. Adam is an attorney with Freund, Freeze & Arnold in Dayton.

MATT DONAHUE lives in Columbus,

Ohio. He writes, “I’ve just been promoted to section chief for special prosecutions for the Ohio attorney general’s office.”

2006 JONATHAN HILTZ was elected partner

at Keating Muething & Klekamp PLL in Cincinnati. Jonathan practices in the firm’s business representation and transactions group. His practice is concentrated in the corporate and finance areas, with a focus on mergers and acquisitions and general corporate matters. Jonathan regularly counsels clients in connection with pre-merger filings under the Hart-Scott-Rodino Antitrust Improvements Act and on other federal antitrust compliance matters.

TIM NEVIUS joined Winston &

Strawn in New York as a fifth-year associate in the litigation department. Tim will work primarily on sports law matters.

them at home in Cincinnati. April is an attorney at Dinsmore.

GLEN MCMURRY was named one of

Dayton Business Journal’s 40 under 40 outstanding local professionals in 2013. He is an attorney with Dungan & LeFevre.

JOSHUA KIN was the featured at-

2008

torney in the August 2013 Pickrel, Schaeffer and Ebeling e-newsletter, On the Legal Wire.

MICHAEL ESHLEMAN was elected

STEPHEN SCHILLING published How

president of the Lea County Bar Association in New Mexico. Michael is an assistant public defender for the New Mexico Public Defender Department in Lea County.

ALLISON SCHAPER joined the envi-

ronmental litigation practice in the St. Louis office of national law firm Polsinelli. Allison’s law practice encompasses the areas of environmental litigation, toxic tort and business litigation. She is a member of the Missouri Bar Association.

2009 KYLE GEIGER joined Walker Wilcox

Matousek LLP in Chicago as an associate attorney. He also was named a Rising Star by SuperLawyers Magazine.

ANDREW LONGBONS joined Lewis

Glasser Casey & Rollins as an associate in the firm’s Morgantown, W.Va., office. He focuses his practice on oil and gas, real estate and coal. Previously, he practiced in Texas for a petroleum company managing and performing title review for major oil and gas acquisitions and divestitures.

SUSAN SURIANO joined Grossman

Law Offices in Columbus, Ohio. As a new associate she focuses on family relations law, serving clients in central Ohio counties in matters related to divorce, dissolution, custody and visitation, child and spousal support orders, and paternity cases.

2010 TYLER CANTRELL joined Young & Caldwell in West Union, Ohio.

JENNIFER KOWAL FRANKLIN lives

in Chesterfield, Mo. She has joined the firm of Carmody MacDonald P.C. as an associate. She practices in the area of family law.

2007

JESSI HILL joined the Covington,

APRIL BUTLER FLAGLER and her

MICHELINE KIDWELL was named

husband, Mike, announce the birth of Owen Michael (8-12-12), who joins

ship Institute. The program was developed in 2011 to cultivate, promote and enhance the leadership skills of woman attorneys across Ohio. Micheline is an attorney with WilmerHale in Dayton.

Ky., office of law firm Stites & Harbison.

to the 2013-14 class of the Ohio Women’s Bar Foundation Leader-

to Win a Law-School Election, and Beyond: The Science of Personal Politics. He started working on the book three years ago while he was still in law school.

It is available from Amazon as a paperback or an e-book. Stephen is an associate with Strauss Troy Co. in Cincinnati.

2011 MITCHELL HEDRICK lives in Peoria

Heights, Ill. He writes, “I’m an attorney with the Peoria office of Heyl Royster, focusing my practice in the area of civil litigation. Previously, I practiced commercial litigation and labor and employment law with a Chicago firm.”

KIMBERLY JONES was named to the

2013-14 class of the Ohio Women’s Bar Foundation Leadership Institute.

The program was developed in 2011 to cultivate, promote and enhance the leadership skills of woman attorneys across Ohio. Kimberly works for U.S. District Court Magistrate Judge Stephanie Bowman.

JOE MULLIGAN lives in Middletown,

Ohio. He joined Faruki Ireland & Cox in September 2013. Joe previously spent two years in private practice, and served as a law clerk extern for the United States District Court for the Southern District of Ohio. He is experienced in employment law matters, business litigation, wills and probate administration, business transactions and domestic relations disputes. Before attending law school, Joe enjoyed a successful career as an advertising sales manager for television and cable operations in Ohio and Pennsylvania. In 2011, Joe was elected to a four-year term for an at-large seat on the Middletown City Council.

2012 DOUGLAS SWEARINGEN and his

wife, Angela, live in Huron, Ohio.

He has joined the Sandusky, Ohio, office of Wickens, Herzer, Panza, Cook & Batista law firm, primarily assisting clients with corporate and business law.

S EN D U P DAT ES O N YO U R LI F E A N D W OR K T O LAW Y E R @ U DA Y T ON . E DU .

SPRING 2014

DAYTON LAWYER

23

GOOD WORKS

What happens when there’s money left over?

The concept of leftover money may seem unusual, but when the process of a class action suit is over it can happen.

And an ancient rule of law can benefit institutions like the UD School of Law. The process of distributing an award to members of the damaged class begins with an explanation of what will happen, said

Bob DeRose ’91 senior partner with Barkan Meizlish in Columbus, Ohio, who works with wage and hour violations. Individuals are notified and given time to respond. If the case Cy pres: — “as near(ly) as possible: designating or according involves employees of a corporation, the employer may want a W-4 to an equivalent doctrine for the interpretation of legal instruform. Letters go to the last known ments having specific terms which cannot be carried out literally, address. Search companies can be used. whereby the court attempts to reform the instrument in accor“But sometimes we can’t locate dance with the general intent of the settlor, testator, etc. rather the members of the class despite our best efforts, or the class memthan allow it to fail,” Webster’s New World College Dictionary bers do not cash their checks for some reason,” DeRose said. “Then the residual money could go to a charity whose mission is similar to the issues involved in the case.”

For that to happen, the parties must agree to cy pres, a centuriesold rule regarding a written instrument to conform as nearly as possible to the intention of the parties, to be the “next best use.” The court must approve the cy pres. “Usually the two parties each pick a charity and the residual money is distributed equally,” DeRose said. “The judge can add to the mix.”

In 2012, DeRose was the plaintiff ’s counsel for a case that needed a cy pres. He thought of UD and, he said, “I saw on the Web a description of the UD School of Law’s Project for Law and Business Ethics.” So UD received a check for more than $12,000. This past fall another DeRose case gained the Project for Law and Business Ethics more than $150,000.

The funds will help with the evolution of that project into a corporate compliance and business ethics program.

Old rule finds use for leftovers

For more on the School of Law’s Project for Law and Business Ethics, see http://www.udayton.edu/law/academics/ law_and_business_ethics/index.php.

24

DAYTON LAWYER

SPRING 2014

The Great Blizzard and the bequest of the Lounge Lizard.

Ken Feldman ’78 always looked ahead Daniel Gehres ’78 found his housemate Ken Feldman anxiously pacing back and forth.

“It’s the end of the world,” Feldman, a fellow 3L, exclaimed.

Feldman was both an optimist and a pessimist, Gehres said. His pessimism that day stemmed from his fascination with the weather forecasts of the three Dayton television stations as they engaged a heated battle for ratings.

“It’s the first time in three years they’ve agreed,” Feldman said to Gehres about the forecast of an impending winter storm.

But Gehres, now a Dayton Municipal Court judge, also remembered his housemate “being then at his best.

He took the money of all five of the housemates, set off to the store and returned laden with meat and potatoes, beer and chips.”

The five of them comfortably survived the Great Blizzard of 1978.

When he wasn’t watching weather (or Flyer basketball) or caring for his housemates and friends, Feldman was an industrious law student who spent hours in what then passed for a students’ lounge.

It took him 30 seconds to get from the lounge to class. He never left the lounge early, Gehres said, and he was never late.

His classmates awarded him a certificate as Lounge Lizard of the Year.

After UD, Feldman pursued a successful career in workers’ compensation until his unexpected death in 2012 at age 59. But, as during the blizzard, he had a plan including a bequest gift to UD School of Law that will support students’ futures and ... refurbish the student lounge.

For information on making a planned gift or bequest to UDSL, call 937-229-4484.

To make an annual gift to UDSL now, go to to http://supportud.udayton.edu.

SPRING 2014

DAYTON LAWYER

25

University of Dayton 300 College Park Dayton, OH 45469-7051

NON-PROFIT ORGANIZATION U.S. POSTAGE PAID DAYTON, OH PERMIT NO. 71

If one applies himself too assiduously to reading, he gradually loses the capacity for thinking.

‘This is the case with many learned persons,’ says Schopenhauer. ‘They have read themselves stupid.’ —Theodore Wesley Koch Koch, a Northwestern University librarian who spoke at the June 10, 1928, dedication of Albert Emanuel Hall, the University of Dayton library that was to become a home to the UD School of Law, wrote those words in a collection of essays published by UD (left). His essay, “Reading: A Vice or a Virtue,” certainly saw virtue in reading. Similarly, there is virtue in the solitary study of the law student. But law students must do more than read; they must learn to think like lawyers; they must learn to practice.

This issue of the Dayton Lawyer offers stories of those who are learning — in reading, in study and in practice.