March/April 2015

THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

VOL. 29, NO. 2 w w w.ohiobar.org

MAR CH/APRIL 2015

DIGITAL ESTATE PLANNING Acquiring client information is no longer a straightforward task

“Hot tubbing” in a federal courtroom

Interview with Niraj Antani: 23-year-old state rep

Easy ways to keep up with OSBA legislative efforts

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OhioLawyer

Vol. 29 No. 2 Departments 3 | President’s Perspective

Why we honor our own.

Headline: Subhead: Body copy: Features

state planning in the age of 6 | Edigital possessions

by Robert L. Ellis Acquiring client information regarding estate planning is no longer a straightforward task.

As most people store various forms of money, business information and social media accounts in digital form, not being able to access these accounts promptly after a decedent’s death could result in the permanent loss of significant assets and information.

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Splash! Hot tubbing in a federal courtroom

by Judge Jack Zouhary Throwing everybody in the “hot tub” at the same time allows the court, counsel and experts to confront or, “splash,” each other directly, resulting in a better chance of reaching a correct conclusion.

Member Spotlight Series: Niraj Antani

by Kate Johnston OSBA interviews Niraj Antani, law student and youngest member of the 131st Ohio General Assembly.

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5 | In Brief U.S. Supreme Court to make all documents public by 2016; 2014 law school enrollment data; what law students want, and what they get; and Attorney General DeWine announces top 10 consumer complaints of 2014.

18 | Inside OSBA

Join us for the 2015 OSBA Annual Convention; connect with colleagues at district meetings; OCLRE thanks volunteers.

21 | Foundation News

Giving time to gain justice: OSBF welcomes new leaders.

22 | Practice Tips

Who determines the necessity of emergency legislation?

24 | Statehouse Connection

The OSBA: A direct link to legislative news.

25 | Did You Know?

Ohio Attorney General’s Leniency Policy provides important option for businesses.

26 | Books & Bytes

Supreme Court’s e-Filing Portal open to all attorneys; introducing OhioLawStudents.com.

27 | Member News

Awards and community involvement of OSBA members.

28 | Member Benefits

Get the most out of your OSBA membership.

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OhioLawyer Ohio Lawyer is published bimonthly by the Ohio State Bar Association.

Ohio Lawyer Staff Editor: Nina Corbut Editorial: Andrew Hartzell, Dan Beckley

Graphic Designer: Andrea Donahue Advertising: Terry Henson Website Editor: Dan Beckley

Board of Editors

Judge David Hejmanowski, Chair, Delaware Steve Bolton, Youngstown J. Kristin Burkett, Newark Hilary Ruth Damaser, Columbus Eleana Drakatos, Columbus Thomas L. Guillozet, Versailles Judge James Jensen, Toledo

OSBA Officers

President: Martin E. Mohler, Toledo President-elect: John D. Holschuh Jr., Cincinnati

William Kaufman, Lebanon Alan J. Lehenbauer, Swanton Kris Long, Columbus Joseph L. Ludovici, East Liverpool Kevin P. Murphy, Warren Marquettes D. Robinson, Cleveland Stephen L. Smith, New Bremen

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Ohio Lawyer is published as a service to members of the Ohio State Bar Association through their dues and is not available to nonmember attorneys. Governmental agencies and educational and legal research organizations may subscribe annually for $35. Single copies to members and qualified subscribers are $7. ©Copyright 2015 by the Ohio State Bar Association. All rights reserved. Any copying of materials herein, in whole or in part, and by any means, without written permission, is prohibited. Requests for reprint permission should be sent to the Ohio Lawyer editorial offices.

Editor reserves the right to reject any advertising submitted for publication. While advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication in Ohio Lawyer. Statements or expressions of opinion herein are those of the author and not necessarily those of the Ohio State Bar Association, its officers, staff or the board of editors.

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OSBA members are encouraged to submit manuscripts to the editor for possible publication in Ohio Lawyer. Articles submitted should not exceed 10 typewritten, double-spaced pages.

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Letter to the Editor Dear Editor: In response to “Giving back for the greater good” in the January/February issue, the Ohio Supreme Court and organized bar can do more to encourage older lawyers to consider pro bono.

The lack of civil legal services for people without much, or any, ability to pay is receiving heightened recognition at a time when record numbers of the “boomers” aging out of the paid workforce are experienced lawyers who need to discover new pathways to active, useful and fulfilling lives.

In recent years, I’ve been keeping up my active Ohio law license and organized bar memberships solely to be eligible to provide pro bono legal services to homeless and other very low income persons. Among other things, this necessitates paying the Supreme Court’s active attorney registration fees, undiscounted bar association dues and CLE tuitions. (True, a new CLE credit for a few pro bono practice hours does provide a little relief—but a lessened incentive to stay current with CLE classes effectively treats pro bono clients as second-rate citizens whose needs for up-to-date lawyering are not on a par with paying clients.)

The Supreme Court should adopt a zero or minimal registration fee category for older lawyers willing to serve needy clients with no remuneration. Bar association dues for such lawyers should be nominal. On the other hand, we should be held to normal CLE requirements, with all course fees waived.

Magazine articles and other upbeat public relations expressions are helpful and timely. But by moving beyond words to action— including foregoing potential revenues—the Supreme Court and bar associations can show real leadership, putting substance behind their verbal commitments to “…ramping up efforts to provide pro bono services to those who need it most.

Patrick A. McGraw, Cleveland Heights

Correction On page 13 in the January/February issue, the Ohio Lawyer staff erroneously published that Ginny Conlan Whitman is a writer for the Cincinnati Bar Association. Her correct title is managing attorney for the Volunteer Lawyers Project. We apologize for this error!

Photography credits

© Shutterstock.com/Goodluz: Cover, 1, 6-7 & 9 © Shutterstock.com/wavebreakmedia: 10 © Andrea Donahue: 12-13 & 16 © Shutterstock.com/Anton Oparin: 23 © Shutterstock.com/Vitchanan Photography: 25

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President’s Perspective Why we honor our own

by Martin E. Mohler

“We are what we repeatedly do.

Excellence, then, is not an act, but a habit.” —Aristotle President Abraham Lincoln once said, “Whoever you are, be a good one.” Our state bar is full of those of whom Lincoln spoke.

Many of us can think of lawyers who we would like to emulate.

As your president this year, I have the privilege of interacting with many great lawyers. From time to time we highlight a few. We honor our 50 and 65-year practitioners at each district meeting, and our committees and sections recognize superior practitioners in a variety of substantive areas of the law. At our annual convention at Kalahari Resort in Sandusky, Ohio, from April 30 through May 2, 2015, we will recognize several special members of our association—some of the “good ones.”

This year, Dick Pogue, a senior advisor to Jones Day in Cleveland, will receive the OSBA’s highest honor, the Ohio Bar Medal. This annual award is given to an attorney who exemplifies unusually meritorious service to the legal profession, to the community and to humanity.

Dick has practiced extensively in the fields of corporate law and litigation, focusing on antitrust and corporate takeover defense work. His civic endeavors are legendary. He has served as chair of many organizations, including the Cleveland Foundation, the Greater Cleveland Growth Association, the University Hospitals Health System, the City Club and the Greater Cleveland Round Table. He has also been active in the Cleveland United Way Campaign and has served as co-chair of the Cleveland Bicentennial Commission.

Dick has spoken and written extensively concerning private sector regionalism and was a co-founder and vice chair of the Regional Business Council, the predecessor of TeamNEO. He has also served as a trustee of Case Western Reserve University, the University of Akron and the Cleveland Institute of Music.

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He has served as interim executive director of the Northeast Ohio Council on Higher Education. He was the chair of the Governor’s Commission on Higher Education and the Economy, and later was a founding trustee of the Ohio Business Alliance for Higher Education and the Economy.

Dick is known as a person who gets things done, whether it’s fundraising for a worthy cause or developing new services for the community.

Another of our annual awards recognizes women lawyers who have improved the legal profession through a high level of professionalism and have opened doors for other women. This year, Kathleen Trafford, a partner at Porter Wright in Columbus, will receive the 2015 Nettie Cronise Lutes Award, named for the first woman to practice law in Ohio. This award was created by the OSBA Women in the Profession Section.

Kathleen concentrates her practice in the areas of governmental regulatory litigation, business disputes and constitutional law.

She represents private parties in disputes with governmental agencies and also serves as special counsel to a number of state and local agencies. She handles matters involving constitutional challenges to state and local laws or orders, First Amendment claims, rate making and price discrimination, contract disputes, trademarks, public records, injunctions and special writs in the Supreme Court of Ohio.

In addition to representing parties in federal and state courts, she also is an experienced arbitrator. She was selected by the Private Adjudication Center at Duke University to serve as an arbiter in the Dalkon Shield products liability class action settlement and the Smith Barney employment discrimination class action.

Prior to joining Porter Wright in 1988, Kathleen was deputy chief counsel to the Ohio Attorney General. In that role, she had primary responsibility for defending the state of Ohio in litigation resulting from the Ohio savings and loan crisis. She is a Fellow in the American College of Trial Lawyers and is currently on its Board of Regents. She has been recognized as a “leader in the field” for commercial litigation in Ohio by Chambers USA each year since 2006.

The Ohio State Bar Association also recognizes those who demonstrate exceptional professional responsibility. Geoffrey Stern,

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former disciplinary counsel and presently a partner in the Columbus firm of Kegler Brown, will receive this year’s Eugene R. Weir Award, given to a lawyer who has worked to promote and uphold legal professionalism and ethics. Geoff is the chair of his firm’s Professional Responsibility Practice, and he is well known throughout Ohio for his experience with professional responsibility and legal ethic issues, including legal malpractice, litigation management and appellate work.

He is the only person to have served as both disciplinary counsel to the Supreme Court of Ohio and as chair of the Ohio State Bar Association Committee of Legal Ethics and Professional Conduct.

During his 10-year stint as National Coordinating Counsel, Geoff represented two defendants in asbestos litigation throughout the country. This national coordination involved more than 22,000 cases at any given time during the decade of his service. Most of these cases concluded with settlement or judgment for Geoff’s clients, who were able to maintain their businesses during the time of massive litigation.

Geoff has previously received the Columbus Bar Association Liberty Bell Award for service to the profession and community, as well as recognition by the OSBA for service to the profession through various continuing legal education lectures.

I look forward to celebrating the accomplishments of these and others at this year’s convention at Kalahari Resort. We will also feature lawyer and author, Scott Turow, as our keynote speaker, and we will host an Access to Justice Summit. Recommendations from the Supreme Court of Ohio’s Task Force on Access to Justice will JIC-336_OhioLawyer_ 7.5” w x 4.754_P1a_Print.pdf

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serve as the foundation for some of those discussions. As you may know, the ABA has launched an initiative to highlight Access to Justice. Under President William C. Hubbard, a commission has been formed on the future of legal services. As President Hubbard has stated, “We must develop a new model to meet the needs of the underserved.”

Access to affordable legal services is critical in a society based on the rule of law. Yet our courts are underfunded, and litigation is expensive and time-consuming.

Many who need legal service cannot afford to hire a lawyer and must represent themselves. We hope to collaborate with the Supreme Court of Ohio, the ABA and other interested parties to highlight the need for Access to Justice, which includes improving the delivery of legal services.

We will work on approaches for the enhancement of the delivery of legal services, so please join us at Kalahari as we focus on Access to Justice here in Ohio. You will receive more information as we get closer to the convention.

We will have some fun at the convention as well with innovative continuing legal education programs and a “Battle of the Bands” featuring several lawyer-judge bands throughout Ohio that will compete Thursday night at President-Elect Holschuh’s reception.

If you have any questions or comments, feel free to email me at mmohler@snhslaw.com or call at (419) 243-6281. We appreciate all you do for the state bar and the citizens of Ohio.

Martin E. Mohler is president of the Ohio State Bar Association.

10:46 AM

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In Brief

Compiled by Kate Johnston

U.S. Supreme Court to make all documents public by 2016 The U.S. Supreme Court has a plan in place to make all document filings it receives available to the public, electronically and with no fee as early as 2016. Although court orders, opinions, transcripts and audio recordings are currently available on the Supreme Court’s website, case briefs, appeals and other such documents are not.

These documents are, however, accessible on a website called Scotusblog (www.scotusblog.com). Lower federal courts also make filings accessible on the Internet source called Pacer (www.pacer.gov), but require a user fee. Chief Justice John Roberts says that the Supreme Court’s delay in adopting the electronic filing technology was largely because, “Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good.” ‒Businessweek.com

2014 law school enrollment data On Dec. 16, 2014, the American Bar Association reported a total J.D. enrollment of 119,775 students for the fall of 2014. This is the lowest total enrollment since 1987. 127 of the 204 current ABA-approved law schools report that their first-year enrollment totals have declined from the year before. Conversely, 69 schools reported a 1L enrollment increase from 2013. Reports of this data and its application to specific schools will be published on the statistics page of the ABA Section of Legal Education and Admissions to the Bar’s website (americanbar.org/resources_for_lawyers) within a few months.

Information in these reports is generated from surveys filed annually

by ABA-approved law schools to the Section of Legal Education and Admissions to the Bar, and have been verified. Detailed consumer information can be viewed on each ABA-approved law school’s website, as well as on the online Official Guide to ABA-Approved Law Schools. ‒Americanbar.org

What law students want, and what they get

• 53 percent of pre-law students want lenient professors; 56 percent of professors are considered strict.

• Most law students and law schools agree that a practice-ready curriculum is preferable to an academic-based one.

• Students and schools agree on the benefits of small class sizes.

• 63 percent of students want an interdisciplinary curriculum, and 80 percent of law schools provide it. ‒Press.kaptest.com

Attorney General DeWine announces top 10 consumer complaints of 2014 The overall number of consumer complaints increased from 26,500 in 2013 to 28,000 in 2014. The top 10 complaint categories were: 1. Motor vehicles 2. Collections, credit reporting, or financial services 3. Household goods or property improvement 4. Internet, phone, or TV services 5. Professional services 6. Shopping, food, or beverages 7. Do Not Call violations 8. Identity theft 9. Health and beauty 10. Utilities Within this list, complaints of identity theft notably increased from 580 to 1,340. In 2014, Attorney General DeWine put into place the Identity Theft Unit, which has since helped eliminate around $190,000 in fraudulent charges, and resolve 35 complaints for minors in foster care. ‒Ohioattorneygeneral.gov

Multiple Kaplan Test Prep surveys of pre-law students have shown that what students believe to be the culture of law school is not always consistent with what they experience once they enter 1L. The survey results showed: • One-fourth of law students prefer a competitive culture to a collaborative one; only 2 percent of law schools consider their culture competitive.

• A majority of students want emphasis on the individual rather than on a team; only one-third of law schools place emphasis on individuals.

• 50 percent of students are looking for a formal environment; only 11 percent of law schools identify their environment as formal.

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Estate planning in the age of digital possessions

By Robert L. Ellis Acquiring client information regarding estate planning is no longer a straightforward task. As most people store various forms of money, business information and social media accounts in digital form, not being able to access these accounts promptly after a decedent’s death could result in the permanent loss of significant assets and information.

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Estate planning involves gathering information about the client’s assets, analyzing the applicable legal and tax issues, and configuring those assets so as to preserve as much of their value as possible while enabling a fiduciary to administer or transfer them in accordance with the client’s wishes.

Proper estate planning necessarily begins with accurate information about what assets the client owns.

example: (1) All physical items that are digitally secured— desktop computers, tablets, phones, safes, cash registers, locks; (2) all locally stored digital files—both software and data; (3) all online files and accounts— cloud storage; online backups; online providers of books, music, software (both downloaded and online-only), commu-

password, the “forgot my password” service may require personal trivia that was known only to the decedent. Trying to force the issue by legal process will almost certainly be futile, either because the provider is not contractually obligated to provide postmortem access to the decedent’s account1, the provider does not have the means to access encrypted information2, or accessing the account would be unlawful.3

Until fairly recently, acquiring that information was a straightforward task. The client would come up with a list of assets, the type of ownership interest held and the extent of any encumbrances. Each asset would then either be included in the estate plan or excluded if it passed outside the estate. Identification was key: Any asset that was identified could be included and administered. Residual clauses would cover any asset not identified at the time.

Although basic estate planning principles have not changed, many types of assets that were once considered personal property have shifted from tangible to intangible form, from owned to licensed, from being controlled by physical possession to being amenable to control only electronically.

The latter problem is slowly being addressed. The Uniform Fiduciary Access to Digital Assets Act (UFADAA), a model statute recently approved by the Uniform Law Commission, provides that heirs and fiduciaries may access any digital asset in which the decedent had a right or interest as of the time of death. It states that if “a provision in a terms-of-service agreement limits a fiduciary’s access to the digital assets of the account holder, the provision is void” unless the account holder, by affirmative and separate act, provides otherwise. One state, Delaware, has already enacted UFADAA.4 The statute has significant limitations, however, chief among them being that as a state statute, it cannot override federal law. A fiduciary or heir can access the decedent’s email and other electronic communications “only if the electronic-communication service or remote-computing service is permitted to disclose the content under the Electronic Communications Privacy Act.”

That is no longer the case. Although basic estate planning principles have not changed, many types of assets that were once considered personal property have shifted from tangible to intangible form, from owned to licensed, from being controlled by physical possession to being amenable to control only electronically. Not only are such assets harder to identify because they are invisible to an administrator taking an inventory of physical possessions, but also equally significant, mere identification of such types of assets does not ensure that a fiduciary will be able to administer them or even gain access to them.

Most people now store photos, videos, various forms of money, documents, correspondence, music and reading material in digital form. Business owners often maintain personal control of a company’s domain names, web and email hosting accounts, online bookkeeping software, credit card merchant accounts and social media accounts. Accessing them requires logging in (sometimes biometrically) and then, for anything not locally stored, also logging into an online account. Not being able to access these devices and accounts promptly after the decedent’s death could result in the permanent loss of significant assets and information, resulting in heartbreak for the family and disaster for the business.

This new reality presents challenges for estate planners and fiduciaries alike.

The identification challenge Because the digital aspects of a person’s life are intangible, the best way to identify them is by using conceptual checklists. For

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nications, Internet services such as email, domain names and hosting; accounts with banking, brokerage, virtual currency and other financial services; accounts providing access to information and research, government services, social networking, gambling and gaming. The identification challenge is an ongoing one: New equipment replaces old, accounts are added and terminated, and service providers change.

The access challenge For each such item the planner is able to identify, the next challenge is to determine how the item is accessed and to maximize the chance that postmortem access will be possible. Maintaining a current list of logins and passwords is likewise an ongoing challenge. Computers often use full encryption for all files, so if the fiduciary does not have the current login or password, all data on the device may be lost. If the device requires biometric access, what is the fiduciary to do? There are apps that enable funeral directors to fingerprint a decedent, but there is no app enabling a fiduciary to use such fingerprints to access the decedent’s devices. For online accounts, if the fiduciary does not have the correct

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Virginia has enacted a law mandating that executors of a will or administrators of an estate of a minor “may assume the deceased minor’s terms of service agreement for a digital account with an Internet service provider, communications service provider, or other online account service provider for purposes of consenting to and obtaining the disclosure of the contents of the deceased minor’s communications and subscriber records pursuant to 18 U.S.C. § 2702.”5 A simple, low-tech approach is generally the best way to deal with the access challenge: The client should maintain an account and device logbook. Every time the client buys a new device, adds or removes an account or changes a password, he or she should make a logbook entry.

The logbook should be kept as securely as the client wishes, but the fiduciary needs to know where it is kept and how to access it. For tech-savvy clients, the logbook could be kept in encrypted form in a separate cloud account to which the fiduciary will always have access. If the fiduciary is an attorney, the contents of the account

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will be protected by the attorney-client privilege, and the attorney can protect the privacy of any information the client does not want relatives and friends to know about. For devices with biometric access, the fiduciary can be added as an additional authorized user, but a better approach is to use a standby password that most such devices permit.

Such an approach is practical in that it maximizes the likelihood that a fiduciary will be able to gain access to the decedent’s accounts—but it still may constitute a breach of contract with the service provider, and, as pointed out above, it might be technically illegal. “Technically,” because there are no reported cases of fiduciaries being subject to prosecution for having accessed a decedent’s account with the decedent’s authorization, and the Justice Department has indicated that it has no intention of prosecuting anyone for violating a private company’s terms of service.6 Most fiduciaries at least seem willing to ignore the legal risks, since using the decedent’s login information is the only way to gain access as the decedent intended.

With regard to a decedent’s online accounts that have money balances, whether in cash or in the form of prepayment (PayPal, eBay, Etsy, Skype, Amazon, gambling, bank and brokerage accounts), a fiduciary who is authorized by the decedent certainly has a legal right of access: No terms of service can override a fiduciary’s right to marshal the estate’s cash assets. Even so, for anonymous money accounts such as Bitcoin, knowing the access parameters is the only way to prevent a total loss of the asset.

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The drafting challenge The difficulties inherent in identification of and postmortem access to digital assets present special challenges when drafting estate planning documents. While preparing the documents, the planner should advise the client as to whether a particular digital asset is even an asset at all. iTunes music files and Kindle books, for example, are licensed only to individual users and cannot be bequeathed or transferred.7 Unlike the situation for social media accounts, however, the death of the account holder for a digital asset account isn’t obvious.

There are no memorial pages, no messages of condolence. Many unanswered questions arise when accounts are simply kept open by heirs under the same user name, perhaps even with additional purchases, after the account-holder’s death. This is particularly so with regard to accounts opened pseudonymously, and to “nontransferrable” software that is installed on a computer, perhaps even with a rightsrestricted license, but not registered in the name of any particular user. Should the planner include language asking the fiduciary to keep certain online accounts and memberships open indefinitely, even in the decedent’s own name if possible? Is an online company that accepts payment for purchases into a decedent’s account obligated to keep the account open?

Given the current legal landscape, the estate planning documents should grant the fiduciary the power to obtain login and password information for all digital assets the decedent leaves behind, and the power to use that information to access all the decedent’s online accounts and transfer all documents and information from

those accounts as the decedent desired. To avoid potentially “requiring” a fiduciary to breach a contract or to violate the law, the drafter may prefer to grant powers and express the client’s wishes, while refraining from instructing the fiduciary to act in specific ways—and of course to advise the client accordingly.

Author bio

By Robert L. Ellis, an attorney with Hennis Rothstein and Ellis in Columbus.

Endnotes 1 Google has a planning feature called “inactive account manager” that enables a user to specify that if Google will allow specified contacts to access the data in his or her account if it goes inactive; otherwise no one gets access if a user dies. Facebook will either remove a deceased person’s account or will turn it into a “memorial,” but not allow heirs or fiduciaries to access private content. Twitter will deactivate, but will not permit access to decedents’ accounts.

2 See, e.g. “iOS Security” (Apple, Inc., Oct. 2014), https://www.apple.com/privacy/docs/ iOS_Security_Guide_Oct_2014.pdf.

3 The Stored Communications Act, 18 U.S.C. §§2710-2712, criminalizes unauthorized access, or access in excess of authorization, to stored electronic communications. The SCA is part of the Electronic Communications Privacy Act, Pub. L. 99-508.

4 Del. Code Title 12, §5001 (effective Jan. 1, 2015).

5 Va. Code §64.2-109. The federal statute referred to is part of the Stored Communications Act, and covers “voluntary disclosure of customer communications or records,” and prohibits disclosure except in certain defined circumstances.

6 See endnote 3. Richard Downing, Department of Justice deputy computer crime chief, reported in McCullagh, “DOJ: Lying to Match.com needs to be a crime,” C|Net news (Nov. 14, 2011), http://news.cnet.com/830131921_3-57324779-281/doj-lying-on-match. com-needs-to-be-a-crime/.

7 To further complicate matters, it is unclear what is supposed to happen to shared software, music, or books licensed to multiple persons through services such as Apple’s “family sharing” or Amazon’s “family library” for Kindle when the adult who initiated the sharing dies. Neither company’s terms and conditions specifically addresses the issue.

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Splash!

Hot tubbing in a federal courtroom

By Judge Jack Zouhary

Throwing everybody in the “hot tub” at the same time allows the court, counsel and experts to confront or, “splash,” each other directly, resulting in a better chance of reaching a correct conclusion.

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When a lawyer told me he heard I had been hot tubbing in my courtroom, I confess I did not know how to respond. It turns out, what I thought was a novel approach to dealing with expert testimony on a complex matter was not so novel. Put on your swim suits and hop in while I explain.

Faced with multiple motions for class certification in an antitrust multi-district litigation, I decided that I needed to see the key experts identified in the briefing. Their affidavits and sworn deposition testimony needed to be tested. The lawyers clamored for a full-blown evidentiary hearing, including formal cross-examination of opposing expert witnesses. Indeed, some went so far as to argue it would be a denial of due process not to grant a hearing. I disagreed.

But I needed a hearing—hundreds of pages submitted by counsel were not enough!

We read the briefs, but still had questions.

And, not surprisingly, the experts were at odds with each other on a number of points. I felt I needed to see them and to question them directly. This would not be a traditional hearing for counsel to wax on, but a focused hearing with direct contact between me and the experts.

I set the matter for oral argument with the following conditions: At the beginning of each session, all experts for that session will be sworn.

This Court, the experts, and counsel for each side will then engage in a discussion, structured around this Court’s questions. That conversation may include back-and-forth directly between the experts, in a point/counterpoint fashion, with this Court moderating. For instance, this Court may ask [plaintiff’s expert] to comment on [defendant’s expert’s] critiques with respect to an aspect of his impact model, then ask [defense experts] to respond, and so on. This Court may invite counsel to join in the legal aspects of that discussion, or comment on the legal consequences of the expert back-and-forth (e.g., what would follow, as a legal matter, from accepting or rejecting a particular expert’s criticisms). Counsel in each session may also make “opening statements”(not to exceed 10 minutes each, delivered before discussion with the experts) that show why plaintiffs have or have not met Rule 23’s requirements.

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With the stage set, and a full day set aside for hearing on several motions, I sent to counsel ahead of time a set of questions that I wanted to be the focus of our discussion. I often employ this practice. It forces me to be prepared and it gives counsel a preview of what I may be thinking. Instead of a seat-of-the-pants response, counsel have time to give my questions some thought (hopefully) and provide me with any additional support, either from the record or from the case law, that might help resolve the questions.

Counsel may also follow up and direct questions to the experts. They may ask questions of their own expert to clarify or rehabilitate—or question the opposing expert to drive a point home. In short, everyone gets a swing. The Australian courts deserve credit for this approach. Surveys of Australian judges found that 95 percent were satisfied with the procedure, felt it increased objectivity and quality of expert evidence, found it made comparisons easier and enhanced the judge’s ability to fulfill the court’s role of fact-finding.3

It was great to have the experts in the courtroom at the same time, nearly face-toface, with questions they could not duck, and to have the opposing expert comment on what he or she had just heard. I suspect the lawyers were a bit nervous ahead of time because they were not in control of the questioning. But it was great fun for me (perhaps because I’m a former trial lawyer) to be engaged directly with the key testimony that I needed to rule on class certification. More importantly, the hearing allowed me to assess the expert opinions on tough economic issues. I found the experience rewarding and will not hesitate to use it again in the right case. What is “The right case?” One that involves multiple experts and a lengthy record, or perhaps a complex Markman hearing. The procedure requires the dueling experts to focus on the same point at the same time.

And the “point/counterpoint” dialogue— as opposed to the traditional appellate-type monologue—is a better way of evaluating the accuracy of an expert’s opinion. There is no hiding.

As it turns out, a few of my American federal colleagues have tried the hot tub technique, including in antitrust cases.4 While its use in American courts appears to be limited to a bench trial or judicial fact-finding, it may also be helpful in trials where jurors have to make difficult decisions based on complex expert testimony.

I’m looking for that right case and, hopefully with lawyer consent, will take the hot tub experience to trial. All I need to do is waterproof the courtroom!

Some describe this “concurrent expert evidence technique” as hot tubbing, and point out that while the Federal Civil Rules do not specifically provide for this practice, Federal Evidence Rule 611 gives courts “control over the mode and order of examining witnesses and presenting evidence so as to . . . make those procedures effective for determining the truth and avoid wasting time.”1 And if a district judge and the experts “jump” in the hot tub for purposes of determining whether the expert’s testimony is admissible—for example, to decide a Daubert motion—when the “splashing” subsides, there is a better chance of reaching a correct conclusion.2

Endnotes

Author bio

By Judge Jack Zouhary, a federal district court judge in Toledo. He has served as a visiting district court judge in several states, sits by assignment on the Sixth and Ninth Circuit courts of appeals, and is an active Fellow of the American College of Trial Lawyers.

1 See “Is There Room in American Courts For An Australian Hot Tub?” The Metropolitan Corporate Counsel, Volume 21, No. 5 (May 2013).

2 See Federal Evidence Rule 104(a) (“The court must decide any preliminary question about whether . . . evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”).

3 The Problems of Partisan Experts and the Potential for Reform Through Concurrent Evidence, 32 Rev. Litig. 1, 38 (2013).

4 Experts in the Tub, 21-SUM Antitrust 95.

Throwing everybody in the water at the same time allows the court, counsel and experts to confront each other directly.

March/April 2015

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Member Spotlight Series

Niraj Antani

by Kate Johnston

OSBA interviews Niraj Antani, law student and youngest member of the 131st Ohio General Assembly.

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At the ripe age of 23, law student Niraj Antani has accomplished quite a remarkable feat. On Dec. 2, 2014, he was sworn into the Ohio House of Representatives, becoming the youngest member of the 131st Ohio General Assembly.

He was first appointed to the position following the passing of late Representative Terry Blair on June 26 of last year.

When that term came to an end, Antani ran for election and won, becoming only the second Indian-American state elected official in the history of Ohio.

Antani is a native of Miami Township and attended Miamisburg High School. He graduated from The Ohio State University with a Bachelor’s degree in political science in 2013, and is currently pursuing a Juris Doctorate. In a recent interview, Antani shared with the OSBA what it was like to run his own campaign, how he believes his age can help the government, and what his plans are for the future.

After you finished your first year of law school, Rep. Terry Blair passed away. Did you know immediately that you were going to go for the seat?

I was interning for Judge Jeffrey Welbaum, 2nd District Court of Appeals, when Terry died. I remember getting the text. I had just given the judge a dissent to edit, and then I went back to my office and got the text. I was asked probably a day or two after his funeral, because the process was sort of unfolding, you know, running after someone passes away. They wanted someone, and Judy, his wife, gave her blessing. And then there was a primary. There were four opponents in my primary, and I was appointed after the election. The speaker said he would appoint whoever won.

Had you worked with Terry much before?

Yes. We had lunch every Saturday for the better part of two years.

Most people that get involved with politics enter into it with a plan. Prior to Terry’s passing away, what was your plan when it came to politics?

Obviously I enjoy politics, but the plan was to go to law school, practice and represent school boards, and then maybe eventually run for office. But I hadn’t picked out a specific office yet.

You’re taking this year off from law school?

Yes. I took fall semester off because getting sworn in would have conflicted with

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finals week. So I would have had to have chosen to take finals or vote up here. And the University of Dayton does not have a part-time program, so I’m just trying to figure out the transfer to Capital to do a part-time program. But the goal is to finish. It will be a long journey. With 60 credit hours left—two years—it’ll probably take me three, three and a half, or four years.

How was the campaign experience?

You had helped other people with campaigns, but it’s different when you’re the guy on the yard sign.

It was certainly different. You know, longer conversations when you’re going doorto-door, 10 to 15 minutes almost in some cases. My general election was favorable, but even just putting together a campaign in 110 days is intense. Most people do it in two years. You’ll start most primary campaigns maybe in August of the year before, and it’ll be a March or May primary, so yeah, you’re going for maybe eight months. I did my primary in three weeks, 21 days. It was a central committee vote, but it was still the same facets of a campaign. So, that was the most intense part, the short time limit.

What does a day look like for you now?

Right now we are just doing back to back to back meetings, 20 minutes here, 20 minutes there, just trying to meet all of the legislative liaisons from the cabinet departments and different areas. And then working on constituent outreach, and setting up city council meetings, and township trustee meetings, and interest group meetings. I have a couple bill ideas, so I’m

March/April 2015

trying to meet with the interested parties with that. We’re just hitting the ground running, but I believe in starting at 6 a.m. and ending at 2 a.m.

Has anybody from the Republican National Convention reached out to you concerning the upcoming convention in ‘16?

Yes. They have a three-member team for Asian-American outreach, and then a two-member team for youth outreach, and I work very closely with them on the State Party and the National Party level.

Will I get to give a speech? We’ll see. I will not say that I am not working on it. What I was told is that if it happens, it will happen at 8 a.m. when the only person in the crowd is my mom and they are still putting out chairs. But, I said, “That is completely fine. If it has to be at 2 a.m. when the lights are off, that’s fine.”

But that’s literally what I was told, that if it happens it will be at 8 a.m. when they are still putting out chairs. But there’s a chance.

What other interests do you have besides politics?

Politics, politics and politics. I’m a little bit of a workaholic. People say, “Well, how’d you get elected at 23?” Well, you work 15 hours a day, every day. The Buckeyes are probably my only other interest and love in life. I made it down to the National Championship and it was the third best day of my life. Getting sworn in was the first, and winning the primary was the second. The Dallas trip for the National Championship was the first time I have ever perhaps put anything above work. I haven’t taken a vacation since I was 17.

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In general, who are some of your role models?

John McCain is the reason I’m a republican. Growing up without a political background, you don’t know where you stand.

You have to figure out where you stand on issues yourself. Everyone says, “I’m a lifelong republican,” and that’s great, but you’re a republican because your parents are republican. I’m a republican because I sat down and I figured out, okay, am I for raising taxes or lowering taxes? Am I a strict constructionist, or am I not? I absolutely developed my views, but John McCain is the reason I’m a Republican. No one talks better about being an American than John McCain.

What was it like meeting him?

Well, I saw him in ‘08 at various rallies, but never met him. So, the day after I lost the race for student body president at Ohio State—April 16, 2012, I met John McCain.

I was still disoriented at the time, a little downtrodden, but it was just surreal. Here’s a guy who ran for president, and served, he was a POW, and he is the architect of many things we have today.

What do your friends who are “normal” 23-year-olds think?

Some of my friends are starting to have kids, and it blows my mind. One of my best friends has a four-year-old, love her to death, I think she is going to be in Kindergarten next year, and the education policy that we make up here determines what she learns or doesn’t learn. The fact that there are only two members of the legislature that grew up with the technology that we have today, and every classroom in Miamisburg High School has a Smartboard, and yet we have people here making education policy that don’t even know how to email. It’s crazy.

She already knows how to work an iPhone, and she’ll call me from her mom’s iPhone.

So, that is very interesting to me. Perhaps, for some people, their children are already adults when they get here. It’s a little different seeing your friends have kids.

Do you feel like you’re uniquely qualified to handle some of the major issues of today?

Yes. Nineteen percent of the elective are 18-29 year olds, but less than 2 percent of the state legislature is in that age group. And these are the people who are paying into pension funds that aren’t, perhaps, solvent.

And then we have folks who were educated in the ‘60s making education policy for today. Even in industry. I have a robotics

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company in my district, and health care is entirely different with technology. So, you need people who understand the industries of today if we’re going to be able to be competitive in the 21st century.

What is your ultimate goal?

Right now the goal is to survive the budget cycle, and to try and get some bills passed. I have a couple bill ideas on taxes, etc., and a couple of court issues, but I’ll try to get those passed and signed by the governor, and hopefully survive my primary. I see one of those coming. My district is significantly republican, depending on the cycle it’s anywhere between R plus-15 to R plus-20, so it is very republican. Being a first-term 23-year-old who got his seat by being appointed to the ballot by the county party, it opens itself to a primary. Hopefully I do a good enough

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job that no one in my district sees a need to run against me. That’s the plan.

To see the video that corresponds with this article, go to ohiobar.org/onthebooks.

Author bio

March/April 2015

Kate Johnston is an intern in the Publications Department at the Ohio State Bar Association.

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Inside OSBA 2015 ANNUAL Register now at ohiobar.org/convention

CONVENTION

#OSBAConvention

April 29-May 1, 2015 Kalahari Resorts | Sandusky, Ohio

Earn up to 13.5 CLE credit hours (approval pending) for one low price!

For a complete listing of all CLE seminar information, including breakout sessions, visit ohiobar.org/convention.

Connect with colleagues. Advance access to justice.

Join us for the 2015 OSBA Annual Convention We hope you will join us for the 2015 OSBA Annual Convention April 29-May 2, at Kalahari Resorts in Sandusky. This year, the OSBA Convention will include an Access to Justice Summit, including a keynote address from the well-known lawyer-author Scott Turow.

Young Lawyer Day Thursday, April 30, 2015

Attendees can also earn up to 13.5 CLE credit hours for one low price. For a complete listing of all CLE seminar information, including breakout sessions, visit ohiobar.org/convention.

For just $35, OSBA attorney members in practice five years or less or 36 years and younger can enjoy CLE and networking opportunities while discovering all that the OSBA has to offer, including a Young Lawyers Section After Hours Party. Presented by the OSBA Young Lawyers Section.

In addition to providing practice-specific CLE courses, this year’s convention includes many exciting features.

Paralegal Day

Access to Justice Summit

Friday, May 1, 2015

The Access to Justice Summit will take place on Thursday, April 30, 2015, in conjunction with the OSBA Convention and Annual Meeting at the Kalahari Resort and Convention Center.

For just $55, OSBA paralegal members can attend a special day of programming just for them. Included in the program is a three-hour CLE program specifically designed for paralegals, interaction with leaders in the profession, networking opportunities and a volunteer afternoon legal clinic.

Many Ohioans, in fact many citizens across the country, do not believe that our justice system is accessible to them. Barriers to justice include cost, language, proximity and just plain lack of knowledge about our courts and overall system of justice.

Fun for the whole family!

The theme of the OSBA Annual Convention is “Access to Justice,” and we will kick off the convention with a keynote address from the well-known lawyer-author Scott Turow. Immediately following the plenary session, convention attendees will have the option of joining invited guests at the Access to Justice Summit.

Participants in the Summit will consider and act upon the report and recommendations of the Supreme Court of Ohio’s Task Force on Access to Justice created by Chief Justice Maureen O’Connor in 2014. There will also be an opportunity to develop additional items for action as determined by the attendees, who will be participating in roundtable discussions on some of the major themes outlined in the task force’s report, such as technology, pro bono, funding and forms. Each roundtable will have time to discuss their topic and report back to the full group ways to implement the recommendations offered in the report.

Looking for an exciting place for you and your family to discover this summer? Kalahari is the nation’s largest indoor waterpark and each spacious guestroom ($139 per night plus applicable taxes) includes four free waterpark passes per day! Other fun amenities and events include: • Complimentary onsite parking a nd high-speed Internet; • A special group rate that e xtents two nights pre- and (when available); and • A rocking Thursday night reception featuring OSBA member bands Jingle Balls, Haphazard Pandemonium, Crazy Gringos and Faith and Whiskey.

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Special events at Convention Wednesday, April 29

Connect with colleagues at district meetings

Reception Celebrating the Work of the Ohio State Bar Foundation | 5-7 p.m.

District 15 Monday, March 16, 2015 Steubenville Country Club, Steubenville

Kick off the convention Lake Erie style! Enjoy a casual fish fry celebrating the good work of the Foundation, their Fellows and supporters.

District 17 Tuesday, March 17, 2015 Athens Country Club, Athens

Thursday, April 30

District 11 Monday, March 23, 2015 John S. Knight Center, Akron

OSBA Annual Luncheon – sponsored by the OSBA Insurance Agency | 11:45 a.m. – 1:15 p.m.

District 10 Monday, March 30, 2015 Ashland College, Trustee Room, Ashland

One of the highlights of the convention, the annual luncheon will feature the presentation of the Ohio Bar Medal to Richard W. Pogue of Cleveland; the passing of the gavel from OSBA President Martin E. Mohler to incoming President John D. Holschuh Jr., and the presentation of the John C. and Ginny Elam Pro Bono Award.

District 1 Tuesday, March 31, 2015 Hilton Netherlands Plaza Hotel, Cincinnati

Law School Alumni Receptions | 6-7 p.m.

Renew old acquaintances and make new connections at your law school reception.

President-elect Reception | 7-9 p.m.

Welcome President-elect John D. Holschuh Jr. of Cincinnati as the incoming OSBA president. Enjoy heavy hors d’oeuvres and rock the night away to the sounds of OSBA member bands! At press time, the following bands are confirmed: the Jingle Balls from Toledo, Crazy Gringos for Galion, Haphazard Pandemonium from Akron and Faith and Whiskey from Cleveland.

Friday, May 1 Lunch with Exhibitors and Prize Drawings | 12-1 p.m.

Grab a boxed lunch and take a final trip around the exhibit hall. Visit the exhibitors for a chance to win one of the exciting raffle prizes.

District 2 Wednesday, April 1, 2015 Troy Country Club, Troy District 7 Monday, April 6, 2015 Sheraton Columbus Hotel at Capitol Square, Columbus District 9 Tuesday, April 7, 2015 Reese Center, OSU-Newark Campus, Newark

OCLRE thanks volunteers On behalf of the Ohio Center for Law-Related Education (OCLRE), thank you to the hundreds of OSBA members who volunteered to help high school students have positive educational experiences through their participation in the We the People and Mock Trial programs. Whether you served as a competition judge, team legal advisor, or a district or regional competition coordinator, your investment of time, resources and expertise is greatly appreciated—and thousands of students throughout the state have benefitted.

Interested in learning more about OCLRE programs, or volunteering for a future event? Visit oclre.org.

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March/April 2015

Ohio Lawyer

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Is your case good law?

Don’t pay to find out.

Membership in the OSBA now includes free access to CaseCheck+, Casemaker’s negative citator system that rivals Shepard’s® and KeyCite®.

Previously available only by subscription, Casecheck+ allows you to quickly determine if your case is good law.

Not a member? What are you waiting for? Access to CaseCheck+ alone pays for your membership dues.

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Casemaker

®

T H E LEADER IN LEGAL RESEAR C H ™

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Foundation News Giving time to gain justice: OSBF welcomes new leaders Lee E. Belardo takes the helm as the 2015 board president of the Ohio State Bar Foundation. A Distinguished Life Fellow Associate of the Foundation, Belardo will lead a talented group of 22 trustees who are committed to promoting public understanding of the rule of law and to improving the justice system. Joining President Belardo and President-elect Thomas P. Moushey on the board this year are new additions Mark M. Kitrick and John D. Holschuh Jr. Lee E. Belardo, President A partner at the firm McClain & Belardo LLC in Avon, Belardo began his one year term as president on Jan. 1. Belardo has been a Fellow with the Foundation for eight years while serving on the Board of Trustees since 2010.

Belardo’s new role builds on a long history of service to the organized bar and community. He is currently a council at large for the City of Avon and is in the middle of his term, which ends in January 2016. He is also a member of the Ohio State Bar Association where he has previously served on the Council of Delegates and the Board of Governors.

Thomas P. Moushey, President-elect Thomas P. Moushey will become president of OSBF on Jan. 1, 2016. He has been active in OSBF since 1998, currently serves on the Grants Committee and is the past chairman of the Audit & Finance Committee. He is also a Distinguished Life Fellow Counselor. Moushey is an attorney with the firm Geiger, Teeple, Robinson & McElwee PLLC where his practice emphasizes estate planning, probate, business law and real estate.

Mark M. Kitrick Kitrick, a Life Fellow, has been a part of OSBF since 2006 and will serve on the Awards Committee this year. In the past, he has donated his time to the Grants Committee as well as a volunteer project called “Keys to the Courtroom.” Kitrick is a partner in the firm of Kitrick, Lewis & Harris Co., L.P.A., where he focuses his practice on personal injury, commercial litigation and consumer protection.

John D. Holschuh Jr. John D. Holschuh Jr., who was named the Ohio State Bar Association’s president-elect, will serve his two-year term ex-officio. As a Distinguished Life Fellow Associate, Holschuh has supported OSBF since 1999. In addition to his active OSBF membership, he is a past president of the Cincinnati Bar Association and the Cincinnati Bar Foundation.

He is also a Fellow in the American College of Trial

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Lawyers, an Advocate of the American Board of Trial Advocates and Fellow of the International Society of Barristers.

A partner in the Cincinnati firm, Santen & Hughes, LPA, Holschuh represents patients and their families in medical negligence and personal injury litigation.

HONOR. REMEMBER. CELEBRATE. You can give thanks with a tribute gift to the OSBF that supports our statewide grants to law-related nonprofits and programs. Tribute gifts are a simple and meaningful way to say “Thank You”, “I Remember” or “Congratulations” in honor of esteemed colleagues, special friends or family. Dedicate your tax-deductible gift today at osbf.net and click “Donate Now” or call (614) 487-4477.

IN HONOR OF

IN MEMORY OF

Hon. Patrick F. Fischer, John D. Holschuh Jr. & Barbara J. Howard John S. Stith, Esq.

Rollis Quincy Lane William M. Lane, Esq.

Steve Jemison and the Law and Leadership Institute Hope M. Sharett, Esq. Martin E. Mohler Joseph R. Tafelski, Esq. Prof. Nancy H. Rogers Michael L. Robinson, Esq. Ruth Seggerson Christine S. Julian, Esq. Robert R. Wantz C. Lynne Day, Esq. William K. Weisenberg Doloris F. Learmonth, Esq. James Petro John S. Stith, Esq. Richard S. Walinski, Esq.

Walter Lawson Carmen V. Roberto Dr. Mac Meyn Ann Marie Tracey, Esq. Joan Mote Alison Belfrage Frederick Hunker Ohio State Bar Association Heather G. Sowald, Esq. Lourania Plummer Mr. and Mrs. Charles K. Plummer James R. Scott Tribbie Scott Plummer & Padden Mary K. Tracy Louis E. Tracy

Kalpana Yalamanchili Gary J. Leppla, Esq.

March/April 2015

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Practice Tips Who determines the necessity of emergency legislation?

by Tim Fox Municipal legislative scrutiny and timeline Standard municipal legislation requires three readings from the legislative authority,1 does not become law until 30 days after it is filed with the mayor of a city or passed by a village’s legislative authority,2 and is subject to referendum—referring the legislation to electorate for approval or rejection—during those 30 days.

legislative authorities must pass the legislation with a super-majority vote, demonstrate that it fully considered the issues prior to declaring the emergency and that it provided the public information relevant to its decision; failing to set forth the reason for the emergency measure in one section of the ordinance prevents it from taking immediate effect.11

In contrast, emergency legislation may be passed after only a single reading3 and becomes law immediately upon the mayor’s signing or when passed by the village legislative authority.4 And provided a municipality adheres to the provisions set forth under R.C. 731.30 and the common law, its emergency legislation is not subject to referendum and is not even reviewable by the courts.5 Moreover, municipalities are not prevented from circumventing a referendum by passing one piece of legislation to repeal the referendum and a second piece to re-enact the legislation repealed by the referendum.6 Note, however, a charter city may enact ordinances that are governed by its charter provisions instead of Ohio’s statutory law.7

The common-law standard: illusory, conclusory or tautological Note first that municipal legislation enjoys the presumption of validity and the presumption “continues until bad faith or abuse of legislative discretion … is clearly proven, or it is manifest that the legislative authority has exceeded its powers, or if the legislation bears no reasonable relation to the public health, safety, welfare or morals.”12 And although there is no requirement that it state its enactment is an “immediate necessity,”13 emergency legislation has an additional common-law requirement that the reason for the emergency measure and the basis for its urgency be stated in the legislation with some specificity.14 Failing to set forth the reason for the emergency measure or to do so “by including purely conclusory, tautological or illusory language in the emergency measure” does not meet the minimum requirements of R.C. 731.30.15

So, what’s a true emergency?

In the context of legislation, the term “emergency” is a misnomer because it does not necessarily describe the circumstances behind what one would typically associate with an emergency, i.e., an event involving police, fire, flood, etc. This confusion in translating the term has caused some to question the necessity of an emergency provision when the proposed legislation does not sound like what one would envision as a “true emergency.” Ohio courts, however, have decided that local legislative authorities are in the best position to determine the urgency of their own legislation, and that neither the voters nor the courts need agree. Indeed, the “existence of an emergency or the soundness of such reasons is subject to review only by the voters at such a subsequent election of their representatives. They are not subject to review by the courts.”8 A court's role, then, is not to review a municipality’s determination of whether an emergency exists—that duty and responsibility vests solely with the municipal legislature.9 The court’s role is to determine whether the municipal legislature complied with the legal framework allowing emergency legislation.10 Statutory law Ohio Revised Code 731.30 provides that municipal legislative authorities may enact emergency legislation necessary for the immediate preservation of the public peace, health or safety, which “shall go into immediate effect” upon “a two-thirds vote of all the members” elected to the legislative authority, and that the reason for such necessity shall be set forth in one section of the ordinance or other measure. Because emergency legislation becomes effective immediately, is final and is not reviewable by the courts, municipal

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Walsh v. Cincinnati City Council provides an example of “illusory or tautological” legislation in that the appellate court found the municipal ordinance “illusory or tautological” because it merely stated that it was an emergency, “because it was an emergency.”16 And in Youngstown v. Aiello, the Court held that the purported emergency was “illusory” because the ordinance provided absolutely no reason for the necessity.17 In contrast, in Moore v. Abrams, the Court held that although the reason stated for the municipality’s emergency ordinance was inarticulate, the statement “in order to proceed with the Portsmouth Downtown Improvement Program, this constitutes an emergency, requiring immediate action in that we are well into the 1990 construction season,” sufficiently set forth and defined the emergency.18 In Jurcisin v. Cuyahoga County Bd. of Elections, the Court found that the subject ordinance clearly stated the reason it needed to go into effect immediately, “the imminence of the next general election date.”19 And in Huebner v. Miles, the twelfth District Court of Appeals held that an ordinance stating an emergency measure was necessary because “the Village needs to raise additional revenue, so as to be able to continue to provide vital services to the Village residents” was not so vague that it failed to apprise the voters of the reason for the emergency.20 In addition, the 11th District Court of Appeals found that an emergency ordinance passed for the purpose of granting pay increases for elected officials stated the reasoning for the emergency in sufficient detail, was not conclusory, illusory or

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tautological, and because it took effect without delay, it fully satisfied necessary emergency legislative requirements.21 Follow the rules Provided municipal legislative authorities state the reason for emergency legislation being necessary for the immediate preservation of the public peace, health or safety, and the basis for the urgency therefore with some specificity, and the reason is not conclusory, illusory or tautological, and they pass the legislation with at least a two-thirds vote of their members, the legislation becomes effective immediately and is subject neither to referendum nor review by the courts. Omit a single step, however, and the legislation loses its immediacy and is further subject to referendum.

Given the swift manner in which emergency legislation may become law, municipal legislative authorities should enact such measures only after thoroughly examining and documenting—in the legislation—the necessity to do so, together with clearly explaining to the electorate their rationale to do so and, if possible, how they may prevent the necessity of such measures in the future.

Author bio Tim Fox is the Director of Law for the City of North Canton. He has served as a senior associate with a Canton law firm, and as a legal extern for the U.S. Southern District Court of Ohio. Tim is a retired Air Force Chief Master Sergeant and a 2006 graduate of the University of Cincinnati College of Law.

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Endnotes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

R.C. 731.17(A)(2).

R.C. 731.29.

R.C. 731.17(A)(2).

R.C. 731.29.

State ex rel. Moore v. Abrams, 62 Ohio St.3d 130, 132, 580 N.E.2d 11 (1991).

State ex rel. Tester v. Ottawa Cty. Bd. of Elections, 174 Ohio St. 15, 16, 723 N.E.2d 762 (1962).

State ex rel. Julnes v. S. Euclid City Council, 2011-Ohio-4485, ¶ 42, 130 Ohio St. 3d 6, 13, 955 N.E.2d 363.

Moore, 62 Ohio St.3d at 132, quoting State ex rel. Fostoria, v. King, 154 Ohio St. 213, 220-221, 94 N.E.2d 697 (1950).

Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35 Ohio St.3d 137, 519 N.E.2d 347 (1988), at paragraph three of the syllabus.

City of Youngstown v. Aiello, 156 Ohio St. 32, 37, 100 N.E.2d 62 (1951).

Id. at paragraph 2 of the syllabus.

State ex rel. Waldick v. Williams, 1995-Ohio-260, 74 Ohio St.3d 192, 193, 658 N.E.2d 241.

State ex rel. Laughlin v. James, 2007-Ohio-4811, ¶ 32, 115 Ohio St.3d 231, 874 N.E.2d 1145, paragraph one of the syllabus.

State ex rel. Waldick at 195.

Id.; Moore at 132–133.

54 Ohio App.2d 107, 112, 375 N.E.2d 811 (1st Dist. 1977), paragraph one of the syllabus.

156 Ohio St. 32, 37, 100 N.E.2d 62, paragraph 3 of the syllabus.

62 Ohio St.3d at 133.

35 Ohio St.3d at 146.

92 Ohio App. 3d 493, 498, 636 N.E.2d 348 (12th Dist. 1993).

City of Warren ex rel. Bluedorn v. Hicks, 124 Ohio App. 3d 621, 627 (11th Dist. 1997).

March/April 2015

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Statehouse Connection The OSBA: A direct link to legislative news

by Todd Book I can remember years ago when a dark-haired Bill Weisenberg came to OSBA district meetings in southern Ohio to give his legislative update. It was always exciting and informative to learn about the players and proposals being discussed.

Years later, when I became a member of the state legislature (and the Berg’s hair was taking on the hue of an actual iceberg), I realized the treasure trove of relevant information to be gleaned during a typical session. Now, as the OSBA Director of Policy and Government Affairs, I don’t want to wait until the district meetings to share these nuggets of knowledge with you, our members.

viewed anywhere you have access to the Internet. Visit www.ohiobar.org/webcasts to listen in on my next legislative update. I will be using these new avenues, as well as this column in Ohio Lawyer and upcoming district meetings around the state, to continue to help spread the word about OSBA legislative efforts and the Ohio Legislature.

Todd Book is the OSBA Director of Policy and Government Affairs.

That is why over the last year we have expanded the OSBA’s outreach by providing reliable and timely information about pending legislation. Below are a few of those efforts.

On The Books Last year, we launched a new Web video series titled “On The Books” that features not only the latest Statehouse news and updates on pending legislation, but also takes a candid look at the lighter side of life in the law. Ghosts, voodoo, U.S. history and local attorney volunteerism are just a few of the topics we covered in 2014, and we’re looking forward to bringing you more exciting (and hopefully entertaining) episodes in 2015. You can check out past episodes at www.ohiobar.org/onthebooks.

Twitter I frequently publish updates on OSBA priority bills and provide insights on the biggest stories evolving within the walls of the historic Ohio Statehouse through my Twitter feed. For breaking news and notes from the Ohio legislature in real-time, you can follow me at the username @ToddBook.

Word on the Square Sometimes a story or idea cannot be conveyed in 140 characters alone. For more in-depth reporting and analysis of significant Statehouse happenings, my blog “Word on the Square” is the place to be. You can read weekly wrap-ups and reports on OSBA legislation and all the action in the Ohio House of Representatives and the Ohio Senate, plus legislative links and my take on major legislative issues. Visit www.ohiobar.org/wordonthesquare to learn more.

CLE Webcasts I host a regular Webcast, worth one credit hour of self-study CLE, which focuses on the most recent activity at the Ohio Statehouse and provides a comprehensive update on OSBA priority legislation. This option is especially convenient as the Webcast can be

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www.ohiobar.org

Did You Know?

Attorney General’s Leniency Policy provides important option for businesses

by Jennifer L. Pratt Imagine that a business client comes to you for advice after discovering that a key employee has been coordinating price increases with the company’s competitors. As far as the client knows, no state or federal law enforcement agency is yet aware of the activity.

These facts at first blush point to an apparent price-fixing agreement, illegal under both the state and federal antitrust laws. Your advice as to this client’s next steps will be critical to minimizing its exposure to criminal and civil liability. The Ohio Attorney General’s new Leniency Policy for Self-Reported Business and Charity Violations is an important consideration.

Many federal agencies have well-established leniency programs offering various forms of relief from prosecution to violators who are the first to report wrongdoing in a variety of areas, such as antitrust (U.S. Department of Justice Antitrust Division), and securities fraud (U.S. Securities and Exchange Commission). The Ohio Attorney General’s Office has not, however, offered any similar program until very recently. In Dec. 2013, Attorney General Mike DeWine adopted the Leniency Policy for Self-Reported Business and Charity Violations to encourage self-reporting of violations of the state’s antitrust, consumer protection and charitable laws.

Under the policy, the Attorney General will not criminally prosecute a qualifying business that reports its own violation of any of the foregoing three types of state statutes. Moreover, the Attorney General will not file a civil lawsuit for damages, penalties or other remedies unless the business breaches the terms of the policy. The Attorney General will also refrain from seeking to debar or otherwise prevent the company from doing business in Ohio.

• It must not have been the ring-leader of the illegal activity and must not have coerced any other business or individual to participate.

• Importantly, whenever possible, the business must make restitution to injured parties, such as public entities that were victims of a bid-rigging or price-fixing conspiracy or the citizens who were harmed by violations of the consumer protection or charitable laws.

The full text of the Leniency Policy appears on the Attorney General’s website at www.ohioattorneygeneral.gov.

While the hypothetical business client described above may be uneasy at the prospect of voluntarily disclosing its own violations, early self-reporting can be a very prudent course of action. Familiarizing yourself with the Attorney General’s new Leniency Policy will prepare you to guide your client in making that decision.

Author bio Jennifer L. Pratt is Chief of the Antitrust Section in Ohio Attorney General Mike DeWine’s Office.

Over the last decade, her section has recovered millions of dollars on behalf of Ohio taxpayers.

She is a graduate of Indiana University’s Maurer School of Law and Graduate School of Business.

To qualify for leniency under the policy, a business must meet several important criteria, including: • The self-reporting business must either disclose wrongdoing that the Attorney General did not know about or, for antitrust or charitable law violations, if the Attorney General was already aware of the wrongdoing the entity must be the first violator to come forward and provide information that supports a sustainable conviction or finding of liability that the Attorney General did not have before.

• It must have taken prompt action to stop its own illegal behavior and must fully and candidly disclose all relevant facts to the Attorney General.

• It must agree to cooperate with any further investigation of the matter, especially if the Attorney General is pursuing other perpetrators.

www.ohiobar.org

March/April 2015

Ohio Lawyer

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Books & Bytes

Compiled by Andrew Hartzell

Supreme Court’s e-Filing Portal open to all attorneys

Introducing OhioLawStudents.com

The Ohio Supreme Court e-Filing Portal is now available to all registered Ohio attorneys. Those who participated in the pilot program found the electronic portal to be more convenient and cost effective than copying and binding filings. Accompanying the program are several guidelines, including:

OhioLawStudents.com, powered by the OSBA, guides you through a successful law school journey from your first day as a 1L to surviving the bar exam.

• Deadlines designated by the Rules and Practices of the Supreme Court of Ohio still apply.

• Get the latest news, tips, scholarship information, job opportunities and more.

• Time should be allowed for setting up account credentials and becoming familiar with the e-Filing Portal.

• Prepare for a successful future in the legal profession.

• Documents submitted via the portal will be reviewed in the order in which they are received. In the case of high volume, review of documents may take up to one business day.

• Connect with fellow law students and the Ohio legal community.

Become a contributor to the site and share your law school experience. Contact Andy Hartzell at ahartzell@ohiobar.org for more information.

• Filers still have an obligation to serve the other parties to the case.

A video tutorial, user guide and other helpful information is available on the Supreme Court Website, and questions and concerns are addressed by calling the e-Filing Help Desk at (614) 387-9980. ‒Courtnewsohio.gov

Introducing

OhioLawStudents.com • Connect with fellow law students and the Ohio legal community.

• Get the latest news, tips, scholarship information, job opportunities and more.

• Prepare for a successful future in the legal profession.

Become a contributor to the site and share your law school experience.

Contact Andy Hartzell at ahartzell@ohiobar.org for more information.

Brought to you by

Exclusively sponsored by

Ohio Bar Liability Insurance Company

.

Owned and endorsed by the Ohio State Bar Association

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www.ohiobar.org

Member News Akron

In Memoriam

Scott P. Sandrock, Brennan, Manna & Diamond, has been elected president of the Buckeye Council Boy Scouts of America.

Stephen Cohen, 80

Cincinnati

Jan. 25, 2013

Wayne M. Leatherman, 91

Perrysburg

April 26, 2013

Ronald K. Bennington, 77

Canton

Aug. 12, 2013

William D. Kloss, 82

Upper Arlington Nov. 22, 2013

Stanley B. Wiener, 85

Cleveland

Canton Prosecutor John D. Ferrero was elected president of the Ohio Prosecuting Attorneys Association.

Cincinnati

2013

Dec. 28, 2013

2014

Jonathan C. Bennie, Peck Bennie & Schlemmer, Co. LPA, was appointed to City of Cincinnati Zoning Board of Appeals.

Landex Research, Inc. PROBATE RESEARCH

Missing and Unknown Heirs Located No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-free: 800-844-6778

Judge Lynn B. Griffith Jr., 86 Warren

March 9, 2014

Jack Supman, 93

Lancaster

March 24, 2014

Forrest H. Bacon, 89

Upper Sandusky May 10, 2014

James R. Greene III, 55

Dayton

May 28, 2014

Ester Delores Harber, 66

Columbus

May 31, 2014

Geoffrey M. Miller, 38

Cincinnati

June 4, 2014

Charles R. Finney, 91

Kettering

June 6, 2014

Louis S. Nyerges, 90

Cleveland

Aug. 19, 2014

Joseph R. Prohaska, 84

Columbus

Sept. 7, 2014

Edward I. Gold, 87

Pasadena, CA

Sept. 15, 2014

William F. Denkewalter, 45

Urbana

Sept. 17, 2014

David C. Levine, 85

Cleveland

Oct. 10, 2014

Jonathan K. Miller, 57

Upper Sandusky Oct. 12, 2014

Robert R. Melnick, 58

Youngstown

Richard O. Harris, 88

Mechanicsburg Oct. 27, 2014

Thomas E. Norpell, 94

Newark

Oct. 27, 2014

Albert J. Rhoa, 90

Cleveland

Nov. 9, 2014

Oct. 19, 2014

OSBA Member News in Ohio Lawyer magazine is limited to awards and civic duties. The news listed above is edited from press releases that are sent to the OSBA. Other submitted member news, such as promotions and new positions, is featured on the OSBA website.

To keep up to date with the most recent member news, go to ohiobar.org/membernews.

To submit an announcement for consideration in Member News, please email it to the editor at membernews@ ohiobar.org.

www.landexresearch.com

www.ohiobar.org

March/April 2015

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27

Member Benefits Get the most out of your OSBA membership Your membership at the Ohio State Bar Association connects you to Ohio’s largest network of legal professionals and resources. Our mission is to provide you with the services and experiences that advance you toward your personal and professional goals, and help you succeed on your own terms. The OSBA can help you: • Prepare your next brief with Casemaker®, our free-to-members online legal research tool; • Take advantage of member discounts on our wide variety of CLE programs designed to fit your particular needs and schedule; • Ease stress on your practice and your wallet with our vendor discount programs; • Stay current on cases, statutory changes and emerging legal trends with publications such as the Ohio State Bar Association Report, Ohio Lawyer and section newsletters; • Get practice tips from a library of practice tools whenever you need them on our mobile-friendly website; • Stand out from the crowd with specialty certification and the OSBA Bar College; and • Expand your network and influence with our committees, sections and government affairs program.

By taking advantage of just a few of these services each year, you will realize the full value of your annual membership.

To see all of the services and programs we offer, visit our website at www.ohiobar.org or call our dedicated Member Service Center at (800) 232-7124 or (614) 487-8585.

Thank you for your membership.

Connect. Advance. Succeed.

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Ohio Lawyer

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www.ohiobar.org

CLE Calendar To register or for more information, call (800) 232-7124 or (614) 487-8585 or visit our website at www.ohiobar.org.

Tax Appeals

4.0 CLE Credit Hours Registration: 9:30 a.m.

Program: 10:00 a.m. – 3:15 p.m.

3/05 – Columbus: OSBA Insurance Staff Counsel

4.0 CLE Credit Hours Registration: 9:30 a.m.

Program: 10:00 a.m. – 3:15 p.m.

3/05 – Columbus: OSBA Transportation Law and the Future of Litigation

4.0 CLE Credit Hours Registration: 9:30 a.m.

Program: 10:00 a.m. – 3:15p.m.

3/5 – Columbus: OSBA Supreme Court Year in Review

VIDEO REPLAY 6.0 CLE/NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

3/12 – Columbus, Cleveland (Cleveland Metro Bar Assn.), Perrysburg 3/13 – Akron, Fairfield Ohio Elder Law Institute

NEW LOCATION (2 Day Program) 12.0 Total CLE Credit Hours 3/19 and 3/20 Doubletree Columbus-Worthington Day 1: Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

Day 2: Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

Young Lawyer Connect

6.0 NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 3:30 p.m.

3/24 – Capital University Law School Military and Veterans’ Law

6.0 CLE Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

3/27 – Columbus: OSBA

Booze, Bullets and Bingo

6.0 CLE/NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

4/1 – Columbus: OSBA Live via Simulcast: Cleveland (Cleveland Metro Bar Assn.)

Basics of Employment Law

6.0 CLE/NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

4/2 – Columbus: OSBA Live via Simulcast: Cleveland (Cleveland Metro Bar Assn.), Fairfield, Perrysburg Introduction to Real Estate

6.0 CLE/NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

4/8 – Columbus: OSBA Live via Simulcast: Cleveland (Cleveland Metro Bar Assn.)

Third Annual Great Lakes Asset Protection Institute

6.25 CLE Credit Hours Registration: 8:00 a.m.

Program: 9:00 a.m. – 5:00 p.m.

4/17 – Columbus: OSBA Live via Simulcast: Akron, Cleveland (Cleveland Metro Bar Assn.), Dayton, Fairfield/Cincinnati, Wooster Professionalism, Law Office Management and Client Funds - VIDEO

REPLAY (A.M. Program) 3.0 NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 11:45 a.m.

4/21 – Columbus: OSBA Live via Simulcast: Akron, Cleveland (Cleveland Metro Bar Assn.), Dayton, Fairfield, Perrysburg 30th Ohio Environment, Energy and Resources Law (3 Day Program)

Appellate Practice

6.0 CLE/NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

4/9 – Cleveland (Cleveland Metro Bar Assn.)

4/16 – Columbus: OSBA

13.5 Total CLE Credit Hours Day 1. Registration: 11:00 a.m.

Program: 12:00 p.m. – 5:00 p.m.

Day 2. 8:30 a.m. – 3:30 p.m.

Day 3. 8:30 a.m. – 12:30 p.m.

4/23 – 4/25 at Cherry Valley Lodge in Newark

Basic Workers’ Compensation Law 2015

Professional Conduct - VIDEO REPLAY

6.0 CLE/NLT Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

4/10 – Columbus: OSBA Non-Profit Law

6.0 CLE Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 4:00 p.m.

4/15 – Columbus: OSBA Live via Simulcast: Cleveland (Cleveland Metro Bar Assoc.)

(A.M. Program) 2.5 CLE Credit Hours Registration: 8:00 a.m.

Program: 8:30 a.m. – 11:15 a.m.

4/28 – Akron, Cleveland (Cleveland Metro Bar Assn.), Columbus, Fairfield, Perrysburg 2015 OSBA Annual Convention

Earn up to 13.5 CLE Credit Hours Kalahari Resort and Convention Center Sandusky, Ohio April 29 – May 1, 2015 Check out full details at: www.ohiobar.org/convention

NOTE: Unless identified otherwise, the OSBA CLE seminars in Cleveland will be held at the Cleveland Metro Bar Association at 1375 E. 9th St. #2, Cleveland, OH 44114.

www.ohiobar.org

March/April 2015

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Connect with colleagues. Advance access to justice.

Earn up to 13.5 CLE credit hours.

Join us at the Ohio State Bar Association’s

2015 ANNUAL

CONVENTION April 29-May 1, 2015 Kalahari Resorts | Sandusky, Ohio

Earn up to 13.5 CLE credit hours (approval pending) for one low price!

For a complete listing of all CLE seminar information, including breakout sessions, visit ohiobar.org/convention.

Register now at ohiobar.org/convention #OSBAConvention