THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE
July/August 2017
VOL. 31, NO. 4 www.ohiobar.org
BECOMING
LAWYER 2.0 OSBA PRESIDENT RANDALL COMER'S PLAN FOR THE FUTURE OF THE PROFESSION
Look inside for the 2017 All-Ohio Legal Forum guide
Feature 16 Ten ways to avoid malpractice and disciplinary actions
Feature 20 Three elements reshaping the way people do business
Table of Contents 3
Legal Leaders Learn how these OSBA members are leading the legal profession.
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Foundation News
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Inside OSBA
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In re Gault: 50 Years Later
By Kathleen Lenski
Ohio State Bar Foundation announces spring grantees.
Welcome to our new Board of Governors members.
Navigating the justice system can be intimidating and obscure — more so for juveniles. Learn how Ohio courts have come a long way to increase protections for juvenile offenders since the historic Supreme Court decision in 1967.
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Did You Know? By Alexandra Bohne Jeanblanc
Quick facts to understand the differences between Medicare and Medicaid.
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Keeping it Real with Randall Comer
By Andrew Hartzell
Springfield-born-and-raised Randall Comer plans to usher in a new generation while serving as OSBA president for the upcoming year. Find out how he plans to evolve the OSBA and change the way people view the 21st Century attorney.
Ohio Lawyer Staff Editor: Nina Corbut Graphic Designer: Dan Petrovski Website Editor: Dan Beckley
OSBA Officers President: Randall M. Comer, Springfield President-elect: Robin Weaver, Cleveland Executive Director: Mary Amos Augsburger
Advertising Sales and Editorial Offices Ohio State Bar Association P.O. Box 16562 Columbus, Ohio 43216-6562 (800) 282-6556; (614) 487-2050 Advertising: ODelGarbino@ohiobar.org Editorial: ncorbut@ohiobar.org Printing: Hopkins Printing
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Practice Tips: 10 Ways to Avoid Malpractice and Disciplinary Actions
By Jack Sahl
The legal profession is changing dramatically and today's lawyers must adhere to increasingly high standards to lower their risk. Learn 10 important ways to avoid malpractice and disciplinary actions while navigating the evolving legal landscape.
Content Advisory Board Judge David Hejmanowski, Chair, Delaware Steve Bolton, Youngstown Alicia Graves, Cleveland Thomas L. Guillozet, Versailles Paul Hervey, New Philadelphia Rachael Ingram, Westerville
William Kaufman, Lebanon Kris Long, Columbus Joseph L. Ludovici, East Liverpool Kevin P. Murphy, Warren Erin Rhinehart, Dayton Stephen L. Smith, New Bremen Judge James Stevenson, Sidney
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25 CLE Calendar
Browse our upcoming live CLE courses.
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Lawyer Lifestyle
When Uberization Collides with Attorneys
Get out and golf! These charitable golf outings are a guaranteed way to have fun and give back to the community.
By Tom Morrison
Learn how three crucial elements are reshaping the way people do business, today and into the future.
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Member Profile:
Eugenio Mollo Jr.
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Meet OSBA member Eugenio Mollo Jr. with Advocates for Basic Legal Equality.
Statehouse Connection
By Todd Book
Ohio’s New State Budget – The Top 10 Things You Should Know
Editorial Offices Ohio Lawyer (issn 1097-6493) is published bimonthly by the Ohio State Bar Association, P.O. Box 16562, Columbus, Ohio 43216-6562. Phone: (800) 282-6556 or (614) 4872050. Periodicals postage paid at Columbus, Ohio and additional offices. Ten dollars of dues pays your required subscription to Ohio Lawyer. 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 2017 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
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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.
Artwork Credits © Pikul Noorod/Shutterstock.com https://www.shutterstock.com/image-photo/hand-jail292134134?src=QBdyDhXnMZMZ34rNMucASg-1-3 Nina Corbut - Cover, Photography page 8
Ohio Lawyer is published bimonthly by the Ohio State Bar Association.
Legal Leaders Akron
Cleveland
In Memoriam
Thomas L. Rosenberg, Roetzel & Andress, was named Chair-Elect of the American Bar Association Forum of Construction Law.
Bill J. Gagliano, Ulmer & Berne LLP, was elected to the Gordon Square Arts District Board of Directors.
2017
Charles Boyd Weed New Straitsville Feb. 13, 2017
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David Weiner, Dinn, Hochman & Potter LLC, received the Cleveland State University Cleveland-Marshall College of Law Adjunct Professor of the Year Award.
Andrew K. Cherney Kettering March 8, 2017
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Hamilton
Michael L. Stark Akron April 7, 2017
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Hon. Noah E. Powers II, Butler County Common Pleas Court, received the George J. Gounaris Award for Excellence on the Bench from the Miami Valley Trial Lawyers Association.
Mark D. Klimek Cleveland April 9, 2017
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Judge J. Ronald Bowman Toledo April 21, 2017
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W. Roger Fry Indian Hill May 2, 2017
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Frank B. Cory Lima May 3, 2017
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Judge Michael E. O’Malley Ottawa May 7, 2017
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John D. Robinett New Albany May 8, 2017
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Cincinnati Matthew J. Smith, Smith Rolfes & Skavdahl, was named Associate Director of Government Affairs for the nonprofit Coalition Against Insurance Fraud. Kim Amrine, Frost Brown Todd, received the 2017 Top Business Women Award from the Ohio Diversity Council.
Columbus Milton Sutton, Frost Brown Todd, earned the Certified Information Privacy Professional/United States credential through the International Association of Privacy Professionals. Patricia Schabo, Franklin County Common Pleas Court, received the 2017 Norma J. Mitchell Award from the Central Ohio Association for Justice. Hon. Michael J. Holbrook, Franklin County Common Pleas Court, received the 2017 George E. Tyack Award from the Central Ohio Association for Justice.
Wilmington Kristy Wilkin, Peelle Law Offices Co. LPA, was appointed to the Southern State Community College Board of Trustees.
John D. Herbert 86 Cincinnati March 27, 2017
Andrew B. King Lima May 9, 2017
Donald L. Mason, Roetzel & Andress, was appointed to the Kent State University Board of Trustees.
This column is limited to awards and civic duties. The news listed 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, visit ohiobar.org/membernews. To submit an announcement for consideration in Member News, please email it to the editor at membernews@ohiobar.org.
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The Ohio State Bar Association mourns the passing of a former leader Frank E. Bazler was president of the Ohio State Bar Association from 1984-1985, during a very turbulent time in its history, when the bar found itself at odds with the Chief Justice of the Ohio Supreme Court and its future was very much in question. He successfully steered the OSBA through the storm and continued to give back over the years, helping to shape it into one of the leading bar associations in the country.
Bazler was also a leader in his Troy, Ohio, community, served ably as a corporate attorney and assistant secretary for the Hobart Corporation for 23 years, and, in addition to the OSBA, was a past president of the Miami County Bar Association, the Ohio Municipal Attorneys Association, the Moritz Law Alumni Society, and the Moritz Henry Folsom Page Society. He also served on the ABA House of Delegates for 16 years, the American Judicature Society, and the National Conference of Bar Presidents.
Longtime members and staff have written in to share their memories and to honor President Bazler, universally agreeing that he was a “steady hand at the wheel,” who “stood tall for the association and its independence.” Duke Thomas, who succeeded Bazler as President of the OSBA, called him “a kind and calm lawyer with three loves—wife Ginni, OSU law school, and the Ohio State Bar Association.”
A former Air Force JAG officer, Frank Bazler was buried with full military honors following his passing on May 12, 2017, at the age of 87. Our thoughts and prayers are with his beloved wife Ginni and the entire Bazler family.
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Foundation News Ohio State Bar Foundation announces spring grantees At the Ohio State Bar Foundation, we believe our democracy works better when people understand their rights and responsibilities and have fair and equal access to justice. Every day we empower nonprofits across Ohio to meet specific legal needs in their communities through our grantmaking initiatives. The OSBF is proud to partner with seven law-related organizations across the state to put our mission into action.
$363,922 total funding statewide • •
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$30,000 to Legal Aid of Western Ohio to support their in-person and virtual series designed to meet the needs of seniors at risk for financial exploitation. $15,000 to LegalWorks to expand upon their expungement program to include a full week of assistance in vacating active warrants, sealing criminal records and more. $100,000 to the Ohio Center for Law-Related Education to support their student-led programs, including Ohio Mock Trial, We the People and professional development programs for participating teachers. $60,000 to the Ohio State Bar Association to produce an online CLE training seminar focused on pro bono services. $34,027 to Legal Aid Society of Columbus, an affiliate of the Ohio State Legal Services Association (OSLSA) to provide legal support and advocacy to individuals who have fallen victim to wage-theft and $54,216 grant to OSLSA affiliate, Southeastern Ohio Legal Services, to design and implement a youth project in connection with the Sojourners Care Network to promote better understanding of legal rights, responsibilities and resources for youth, caregivers and staff. $25,000 to Legal Aid Society of Cleveland to develop a program that empowers potential clients to become self-advocates in legal issues affecting shelter, safety and economic security. $45,679 to the Ronald McDonald House of Cleveland to make enhancements to the legal resource section of their online directory.
HONOR. REMEMBER. CELEBRATE. Honor the exceptional, celebrate an occasion or recognize the significant people in your life with a charitable gift to OSBF. Tribute gifts are an easy way for you to support OSBF grantmaking initiatives and to ensure special colleagues, friends and family receive the statewide recognition they deserve.
To dedicate your gift, call (614) 487-4477 or visit www.osbf.net and click “Donate Now.”
IN HONOR OF Ohio State Bar Association James L. Peters
IN MEMORY OF Carole S. Dougherty Ronald W. Dougherty Judge Michael O’Malley Pamela & Allen Heringhaus Frank E. Bazler Reginald S. Jackson Jr. Hon. J. Ronald Bowman Reginald S. Jackson Jr.
Edward & Dolores Thompson Lee A. Thompson Judge William Skow Mechelle Zarou Neil Light Mechelle Zarou
Cheri Hass Michael Oser Gifts made between April 1, 2017 and May 31, 2017
Contact Julia Wyche, Grants and Communications Specialist, at (614) 487-4450 to find out how we can help in your community. Thanks to OSBF Fellows, partners and friends for making these grants possible.
Join us as we recognize excellence
Please join us as we recognize our 2017 honorees for their commitment to service and distinction at the Nationwide Hotel and Conference Center in Lewis Center, Ohio, on Oct. 6, 2017, during the Ohio State Bar Foundation Annual Awards Dinner. For more information, contact Liz Volpe, Program and Events Manager, at lvolpe@osbf.net or (614) 487-4474.
CONNECT WITH OSBF
Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation OHIO LAWYER JULY/AUGUST 2017
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Inside OSBA Welcome to Our New Board of Governors Members
David S. Bloomfield Jr.
William R. Groves
Mayor Paula Hicks-Hudson
David S. Bloomfield Jr., partner in the Columbus firm of Porter Wright Morris & Arthur LLP, has been elected to serve a three-year term as District 7 representative on the Board of Governors. Bloomfield earned his undergraduate degree from Haverford College and his law degree from The Ohio State University Moritz College of Law. In addition to the OSBA, Bloomfield belongs to the American Bar Association House of Delegates and was a past president of the Columbus Bar Association. He is the secretary/ treasurer of the Mirolo Charitable Foundation and a board member of the Economic and Community Development Institute. His wife, Dawn, is a homemaker. They have two children, Caroline and Max.
William R. Groves, chancellor of Antioch University in Yellow Springs, has been elected to serve a three-year term as an at-large member of the Board of Governors. Groves earned his undergraduate degree from Ohio University and his law degree from The Ohio State University Moritz College of Law. In addition to the OSBA, he is a member of the American Bar Association, the Springfield and Clark County Bar Association, and the National Association of College and University Attorneys (NACUA). He is the former Board of Trustees president of the United Way of Clark and Champaign Counties, Inc., the former Board of Trustees president of Planned Parenthood of West Central Ohio, and the former Board of Trustees president of Covenant Presbyterian Church. He and his husband, Joel Johnston, have two children, Wesley and Katy.
Mayor of Toledo Paula Hicks-Hudson has been elected to serve a three-year term as District 4 representative on the Board of Governors. Mayor HicksHudson earned her undergraduate degree from Spelman College and her law degree from the University of Iowa College of Law. Prior to her career as mayor, she worked as assistant Lucas County prosecutor, assistant public defender, and assistant state attorney general. Mayor Hicks-Hudson is also a former president of the Toledo City Council. She and her husband, Freeman Hudson, have two children, Hope and Freestar.
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Don W. Humphrey Jr.
David H. Lefton
Andrew Lycans
Don W. Humphrey Jr., assistant prosecuting attorney for Columbiana County, has been elected to serve a three-year term as District 13 representative on the Board of Governors. He earned his undergraduate and law degrees from Ohio Northern University. From 2002 to 2013, he was a member of the Columbiana County Fair Board. Humphrey is also a past president of the Columbiana County Bar Association. He is a father to three children.
David H. Lefton, partner in the Cincinnati firm of Barron Peck Bennie & Schlemmer, LPA, has been elected to serve a three-year term as District 1 representative on the Board of Governors. He received his undergraduate degree from Bradley University and his law degree from University of Dayton Law School. In addition to serving on numerous committees within the OSBA, Lefton is an involved member of the American Bar Association and the Cincinnati Bar Association. He also serves his community as a member of the Cincinnati Arts Association Board of Trustees. He and his wife, Karen, have two daughters, Nicole and Carly.
Andrew Lycans, attorney in the Wooster firm of Critchfield, Critchfield & Johnson, Ltd., has been elected to serve a three-year term as District 10 representative on the Board of Governors. He earned his undergraduate degree from the University of Akron and his law degree from University of Michigan Law School. Lycans focuses his practice on appellate litigation, complex/class actions, intellectual property, oil and gas litigation, and probate, trust and will contests. He is also a member of the OSBA Council of Delegates, and is active in his community as a trustee for the United Way of Wayne and Holmes Counties. In his free time, he enjoys antiquing and auctions.
Don't Miss the All-Ohio Legal Forum 2017 - August 23-25, 2017 Save the date now and plan to attend the 2017 All-Ohio Legal Forum for a chance to earn up to 12 hours of CLE credit and network with colleagues and exhibitors with law-related products and services. Register today at allohiolegalforum.org. See you in Cleveland!
KEEPING IT REAL WITH RANDALL COMER BY ANDREW HARTZELL
Springfield born-and-raised Randall Comer plans to usher in a new generation while serving as OSBA President for the upcoming year. Find out how he plans to evolve the OSBA and change the way people view the 21st Century attorney.
For those times when Black’s Law Dictionary just won’t do, OSBA President Randall Comer seeks the authority of UrbanDictionary.com. The phrase he wants to define? Keeping it real: Not being fake or influenced. Being true to yourself and your values, but more importantly, being true to innate values that all people acknowledge as respectable. Keeping it real. For Randall, his wife, Tamara, and three children, Grace, Grant and Matthew, this expression serves as the Comer family motto. “I’m blunt with my older kids. I tell them don’t be a jerk. The world doesn’t need any. Rather be good, kind, and generous. Be accessible, transparent, humble, and compassionate,” said Comer. These words also serve as the guiding principles in Comer's professional life. A small town guy Born and raised in Springfield, Ohio, and a proud product of the local school system, Comer earned his B.S. in psychology from the College of Charleston, S.C., and his law degree from the University of Cincinnati School of Law.
can pretty much capture the first 18 years of my life all in one panoramic view.” Springfield seems like a perfect fit for Comer from both a quality-oflife perspective and a practice of law perspective. “There’s a certain collegiality and respect that you have for your fellow attorneys in a small town because you know you’re going to see them and work with them again. It brings out the best and most cooperative spirit; you’re trying to resolve problems as opposed to exacerbating them,” said Comer. We visited the offices of Martin, Browne, Hull & Harper, P.L.L. to enjoy the panoramic view of Springfield first hand, and to get to know the real Randall Comer and his plans as OSBA president for the coming year. What do you find most rewarding about the law? Helping people solve problems. When people come to lawyers for help, it’s for the more difficult parts of life, whether they have been sued, lost a loved one, or they feel that their rights have been violated. It’s very stressful and difficult. I like to
help them through those problems, both from a legal perspective and to allay their fears and anxieties. What advice would you give to an attorney coming out of law school? Take heart. There has been a lot of concern and pessimism about the future of the legal profession and a lawyer’s place in it, and I think that is going to change for the better in the next three to five years. We are in the midst of a significant cultural change, as we see more and more Baby Boomers retire, there will be more places for younger attorneys to fill the gaps. When did you first get involved in the OSBA? I became a member as soon as I graduated from law school. I’ve been a member ever since. In the first five to seven years of practice, you are so busy learning the actual practice of law that you don’t necessarily get in law school, so I wasn’t heavily involved in the OSBA or any bar association at that time. That has changed over time, though. As I became more proficient in the practice of law, I have had more time to get involved
He returned to his hometown to practice in labor and employment law, worker’s compensation law, human resources law, and a variety of litigation. Or as he puts it, “a little bit of everything.” “Interestingly, from our office, I can see the entire history of my life in Springfield … from the hospital that I was born in to the house I grew up in to all the elementary and middle schools I went to, even the high school.” Comer said. “So, looking east out of the building you OHIO LAWYER JULY/AUGUST 2017
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“Take heart. There has been a lot of concern and pessimism about the future of the legal profession and a lawyer's place in it, and I think that is going to change for the better in the next 3-5 years.” in civic activities and bar activities. I became a member of the Board of Governors in 2013 and my eyes were opened to just how much the OSBA does and is doing for the profession and for its members. Now I have a very different view, 16 to 17 years into practice than I did initially. I’m very impressed. What would you tell someone in the legal profession who is thinking about joining the OSBA? The OSBA is indispensable. It provides members with numerous benefits to aid them in the practice of law—CLE programming, the green book, Casemaker, etc. And, what many attorneys don’t know is that the OSBA serves as the chief lobbyist for our profession advocating on behalf of attorneys both before the Supreme Court and the Statehouse. So, whether you’re just coming out of law school or if you’ve been practicing for 30 years, you will be better connected to your colleagues, the profession and the public by being a member of the OSBA. What OSBA benefit do you use the most? The one that jumps right to the front is the green book (the OSBA Report). I use the online version every day. It’s easy, it’s quick. It gives me a very concise overview of what’s going on in Ohio law. I really like the news articles on the righthand side that are very helpful and can get you to more information if you want it. CLE, especially the
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Midwest Labor Law program, is a very close second. Why did you want to be OSBA president? It took some time to come to that conclusion. It wasn’t a snap judgment, so to speak. The most important reason is because I felt that I was the right person at this particular time. I think the profession and the bar association are going through some significant changes—culturally, technologically, economically—and I felt that I had a pretty good sense as to what those are and that I would serve the profession and the Association well. What issues will you focus on during your term? The focus of my term is to ensure the OSBA is more nimble and responsive to its members’ needs. The profession is going through a significant change and has since 2008. The OSBA is responding to that, and can help members better adapt to those changing professional and economic realities. I think the way for the OSBA to do that is to change its digital presence. We are in the process of exploring how the OSBA through its website can better connect with its members, and in turn - connect the members to the public. Where do you see the OSBA going in the future? I think it becomes more nimble. I think it becomes more responsive. I think it has a more digital presence in the lives of attorneys and their practices. I think it’s simply the wave of the future—technology,
that is. I think that’s also the wave of the future for the profession; as we’re seeing law firms move to less bricks and mortar and to more remote connectivity and more virtual law practices. I see the OSBA adapting and filling in the gaps in this very rapidly changing technological world. We do a great job with the law itself—with the green book, Ohio Lawyer, Casemaker, CLE—where we compile the law and make it readily accessible to our members, but in terms of practice management and business development, I think we (the OSBA) can be of greater assistance to our members. The 21st century is upon us and the 21st century attorney has to rebrand himself or herself. It’s a lot easier for the 21st century consumer to go online and look up their issues rather than talk to a lawyer. We live in an age of DIY (do-it-yourself). Indeed, a recent survey indicates that 56 percent of people would rather handle their legal matters on their own rather than engage an attorney.* Thus, we must change the perception (or misperception) of lawyers from stuffy, aloof intellectual gladiators that fight viciously at any cost to their clients, to accessible, relatable problem-solvers that cost-effectively help make their clients’ lives better. How do we do this? By being accessible, transparent, humble and compassionate. You know, by keeping it real. * National Center for State Courts, 2015.
Author bio
Andrew Hartzell is the Senior Manager of Content Strategies and Outreach at the Ohio State Bar Association.
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THINGS YOU DON'T KNOW ABOUT RANDALL COMER
1. He’s Iron Man Randall started doing triathlons when he was 16 years old and competed at a national level early on. He competed in an Iron Man triathlon in 2010.
2. He’s bionic He’s had both hips replaced.
3. He’s all about the drama Randall was the lead in his high school musical his senior year and started college as a theater major.
4. He can name that tune — can you? He wakes up every morning with a song in his head. It’s a game in his household to see if his wife can guess which song.
5. He’ll fight for your right … to party He can rap the entire Beastie Boys album “License to Ill.”
6. He is third author on a scientific publication from his stint in a Ph.D. program for psychology. If you are interested, you can try to find it on the internet. (Note: it is not nearly as sexy as it sounds.)
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In re Gault: 50 Years Later BY KATHLEEN LENSKI 1967 was a watershed year for juvenile justice because of the U.S. Supreme Court decision In re Gault.1 On June 8, 1964, 14-year-old Gerry Gault and his friend Ronnie were arrested in Arizona and charged for making an obscene phone call to a neighbor. Gerry’s parents were at work when he was arrested and detained in the Children’s Detention Home. He was on probation at the time of this offense for being involved in a case regarding a stolen wallet. Gerry’s mother received word from Ronnie that Gerry had been arrested and detained. Mrs. Gault then contacted the detention center and was informed that Gerry would be seen by a judge the next day. A judge held an informal hearing regarding Gerry’s case the day after his arrest, but that hearing was not recorded, and Gerry’s parents were not present for the hearing. The probation officer gave a report to the judge about the lewd phone call. Gerry supposedly admitted to the offense, but there were conflicting reports about the nature of his admission during this informal hearing. Neither Gerry nor his parents received a copy of the petition that had been filed against him. At the conclusion of this informal hearing, the judge sentenced Gerry to Arizona’s State Industrial School for six years. Gerry’s parents could not file an appeal in Arizona because state law, at that time, prohibited the filing of appeals in juvenile cases. Their only remedy was a writ of habeas corpus, which they filed in Arizona Superior Court. The writ was denied by the Superior Court and by the Arizona Supreme Court.
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Gerry’s parents then petitioned the U.S. Supreme Court, which agreed to hear the case to determine the due process rights of juvenile offenders who face incarceration.
Mr. Gerry Gault: No, ma’am.
In an 8-1 decision, the U.S. Supreme Court ruled that Gerry’s commitment to the Industrial School for six years was unconstitutional, because the juvenile court had violated Gerry’s rights under the Sixth Amendment since he had been denied the right to legal counsel. Moreover, the Court held that the 14th Amendment also applied to juveniles and Gerry’s due process rights had been violated because he had not been formally notified of the charges against him, his right against self-incrimination and his right to confront his accusers. The sole dissenter, Justice Potter Stewart, argued that procedural due process rights do not apply to juvenile cases because the purpose of juvenile court is to rehabilitate, not punish.
Mr. Gerry Gault: No, ma’am.
Jackie Baillargeon of the Open Society Institute interviewed Gerry about the case when he was about 60 years old. Here is a portion of that interview that was played on National Public Radio on May 19, 2007.
Gerry’s experience in juvenile court was typical of the time and Justice Stewart’s dissent in his case embodied the philosophy of the juvenile courts from their inception in 1899 through the 1960s. The 1966 U.S. Supreme Court case Kent v. United States, began to analyze the process in juvenile courts.2 Morris Kent was 16 years of age and was charged with robbing and raping a woman. He was detained and admitted to the offense during an interrogation. Morris’s parents hired an attorney who had Morris evaluated by a psychiatrist that diagnosed him with severe psychopathy and recommended hospitalization. The juvenile court failed to hold any hearings regarding Morris
Ms. Jackie Baillargeon (Director, Gideon Project, Open Society Institute): Did they tell you what you’re charged with when they got you? Mr. Gerry Gault (Former Juvenile Delinquent): No, no. Ms. Jackie Baillargeon: Did you see your parents before you were taken before the judge?
Ms. Jackie Baillargeon: So it was a week before you saw your parents? Did you see a lawyer during that time frame?
Ms. Jackie Baillargeon: When you got to the courtroom, what did you think was happening? Mr. Gerry Gault: At that time I was 14, you know, I didn't know. Ms. Jackie Baillargeon: Did he ever say I'm charging you or convicting you of making a lewd phone call? Mr. Gerry Gault: Oh, that he did. Ms. Jackie Baillargeon: Were any witnesses brought before the court? Mr. Gerry Gault: No, ma’am.
and transferred his case to the adult court despite the attorney’s opposition to the transfer. The U.S. Supreme Court reversed and held that Morris was entitled to a hearing in juvenile court and that the court was required to issue a decision to transfer the case to adult court. Implementation of the due process protections for juveniles articulated in Morris and Gault has been less than uniform across our nation. Consider Ohio as an example. Ohio’s Juvenile Rule 3 addresses the right to counsel in juvenile delinquency proceedings. Prior to 2012, the rule read as follows:
C.S. and his mother appeared before the juvenile court and were given written notification of the charges and notification of his rights, including the right to counsel. The following colloquy ensued: The Court: Do you understand that you have the right to be represented by an attorney at today’s hearing? C.S.: Yes, sir. The Court: If you cannot afford an attorney and you qualify under state guidelines, I will appoint an attorney to represent you. Do you understand that?
Juvenile Rule 3. Waiver of Rights
C.S.: Yes, sir.
A child’s right to be represented by counsel at a hearing conducted pursuant to Juv. R. 30 may not be waived. Other rights of a child may be waived with the permission of the court.
The Court: Do you wish to go forward with todays hearing without an attorney?
Accordingly, in Ohio, prior to 2012, a juvenile’s absolute right to counsel was limited to bind-over proceedings wherein a juvenile’s case could be transferred to adult court (Juv. R. 30) which comported with the Morris decision. In any other cases, felony or misdemeanor, a juvenile could waive his right to counsel so long as the court permitted the waiver. A juvenile could even waive his right to counsel in a case where the juvenile could be labeled as a serious youthful offender. Juvenile courts across Ohio routinely permitted juvenile offenders to represent themselves throughout court proceedings. In 2007, the Ohio Supreme Court addressed the waiver of counsel issue in the seminal case of In re C.S.,.3 C.S. appeared before the juvenile court charged with various felonies, including grand theft auto and a probation violation. C.S. was involved in a mini-crime spree with another juvenile offender. The juveniles had stolen a vehicle and, over the course of about three days, had driven across three counties committing various serious offenses.
C.S.: Yes, sir. The Court: Ms. S., do you agree with C.S.’s decision today to go forward without an attorney? MS. S.: Yes, sir. After this exchange, the magistrate reviewed the charges with C.S. and his mother and accepted the juvenile’s admission to the offenses after explaining to him his rights and possible consequences. C.S.’s mother also stated that she was in agreement with her son’s admission to the offenses. The magistrate then sentenced the youth to a term of commitment at the Department of Youth Services not to exceed his 21st birthday. The Ohio Supreme Court reversed the adjudication and disposition of C.S., because the Court found that his due process rights had been violated. The Ohio Supreme Court, in the Syllabus, set forth a detailed rule about when and how a juvenile could properly waive counsel. The Court found that in any delinquency proceeding that the juvenile could waive his right to counsel only if the juvenile was properly counseled by a parent, custodian or guardian. The Court also held that a juvenile
court must conduct the proper analysis to determine whether to accept the juvenile’s waiver of counsel. The Ohio Supreme Court held that a juvenile court was required to complete a totality-of-the-circumstances test to ascertain whether to accept a juvenile’s waiver of counsel. The court was required to consider a juvenile’s age, intelligence, background, experience, and complexity of the case as part of the totality test. Finally, the Ohio Supreme Court determined that after completing this analysis, the juvenile court could only accept the waiver by strictly complying with Juvenile Rule 29, which requires juvenile courts to review the charges with the juvenile offender as well as the juvenile’s rights and possible consequences to the offense. By complying with these measures, the Ohio Supreme Court held that juvenile courts would comply with the mandates from Gault. Although the C.S. decision was a victory for juvenile advocates and reformers, activists sought greater protections for juvenile offenders. Six years of negotiation amongst all the juvenile stakeholders across the state, contributed to the implementation of the amendments to Juvenile Rule 3 by the Ohio Supreme Court. (See sidebar.) This compromise rule was seen as a major victory by activists and reformers to ensure the implementation of Gault in Ohio, but many do not believe that the rule provides enough protections. When the amendment was first proposed, the Ohio Supreme Court Advisory Committee on Children and Families suggested that the waiver rule in (C) apply to all offenses not just to felonies. However, the compromise rule differentiated the waiver requirements for misdemeanors and felonies. In 2017, 50 years after the Gault decision, juvenile reformers continue to push for greater due process protections for juvenile offenders in Ohio. These reforms have been embraced by many of Ohio’s juvenile court judges. Several juvenile court judges were recently interviewed about the implementation
of Gault in Ohio in the May 12, 2017, edition of Court News Ohio. These judges expressed concerns that the 2012 changes to Juvenile Rule 3 do not provide enough protections for juvenile offenders charged with lower level offenses.
Kay Locke, the supervising attorney for the juvenile division of the Montgomery County Public Defender’s Office, responded on May 16, 2017, in the Ohio State Bar Association’s Juvenile Law Member’s Community about this proposed rule change as follows:
Judge Anthony Capizzi, a juvenile court judge in Montgomery County since 2004, was one of those interviewed. He continues to advocate for requiring counsel for juveniles for all offenses regardless of severity. Judge Capizzi has expressed that providing counsel for juveniles, regardless of the offense, will provide greater protections for juveniles. Counsel would assist juveniles and their families with understanding and respecting the juvenile court process. Counsel also would educate the juveniles and their families about the possible options regarding adjudication and disposition and provide the Court with the best information about the needs of the juvenile. (See Court News Ohio May 12, 2017 edition.)4
“Expansion of a child’s right to counsel is so vitally important to protect their interests. Adults, let alone children, find it confusing and intimidating to maneuver the justice system. Children need someone who understands the system and who can explain the proceedings with patience, simplicity, and thoroughness.”
On May 15, 2017, the ACLU of Ohio, the Ohio Public Defender and the Children’s Law Center submitted a request to the Ohio Supreme Court urging the court to increase protections for juvenile offenders. In the letter, these groups called on the Ohio Supreme Court to expand Juvenile R. 3 so that any child who could potentially be placed outside of the home, be properly counseled before a waiver of counsel can be accepted by the court regardless of severity of the offense. Kim Tandy, executive director of the Children’s Law Center, was quoted in the ACLU of Ohio’s press release regarding the letter to the Ohio Supreme Court. Ms. Tandy stated, “No child should navigate the juvenile delinquency system without the benefit of counsel, regardless of where they live of the nature of the charge. Ohio courts have come a long way in ensuring this happens, but this proposed rule levels the playing field for all kids.”
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OHIO LAWYER JULY/AUGUST 2017
Juvenile law has become a hot topic in Ohio and throughout our nation. Many conversations are occurring at all levels in the legal community, in government and in society about necessary reforms that not only protect juvenile offenders but also reduce the juvenile crime rates. These dialogues about disparate treatment in the system, the school-toprison pipeline, trauma-informed case management, solitary confinement and others will only further improve our juvenile justice system.
Author
Kathleen Lenski is a magistrate with Montgomery County Juvenile Court and is chair of the OSBA Juvenile Law Committee. The Juvenile Law Committee will celebrate the Gault 50th anniversary at the 2017 All-Ohio Legal Forum on Aug. 24 at 9 a.m. at the Cleveland Convention Center. For more information, go to www.ohiobar. org/forum. The OSBA Juvenile Law Committee also prepared a six-part webinar series on juvenile justice for CLE credit. Visit yourosba.ohiobar.org for more information or to register.
Endnotes 1
387 U.S. 1 1967.
2
383 U.S. 541 1966.
3
(2007) 2007-Ohio-4919.
4
See Court News Ohio May 12, 2017, edition.
Rule 3. Waiver of rights (A) A child’s right to be represented by counsel may not be waived in the following circumstances: (1) at a hearing conducted pursuant to Juv.R. 30; (2) when a serious youthful offender dispositional sentence has been requested; or (3) when there is a conflict or disagreement between the child and the parent, guardian, or custodian; or if the parent, guardian, or custodian requests that the child be removed from the home. (B) If a child is facing the potential loss of liberty, the child shall be informed on the record of the child’s right to counsel and the disadvantages of self-representation. (C) If a child is charged with a felony offense, the court shall not allow any waiver of counsel unless the child has met privately with an attorney to discuss the child’s right to counsel and the disadvantages of selfrepresentation. (D) Any waiver of the right to counsel shall be made in open court, recorded, and in writing. In determining whether a child has knowingly, intelligently, and voluntarily waived the right to counsel, the court shall look to the totality of the circumstances including, but not limited to: the child’s age; intelligence; education; background and experience generally and in the court system specifically; the child’s emotional stability; and the complexity of the proceedings. The Court shall ensure that a child consults with a parent, custodian, guardian, or guardian ad litem, before any waiver of counsel. However, no parent, guardian, custodian, or other person may waive the child’s right to counsel. (E) Other rights of a child may be waived with permission of the court.
Did You Know?
MEDICARE VS MEDICAID By: Alexandra Bohne Jeanblanc with Jeanblanc & Rosser, LLP in Cleveland
One question often asked, even by attorneys, is “What is the difference between Medicare and Medicaid?” Both provide health care to individuals and many individuals actually qualify for both programs. Understanding the differences in how they work is vital to avoiding problems when enrolling or using services.
Medicare is a federally-funded entitlement available to individuals who are either over the age of 65 or younger individuals who are disabled.
Medicaid is a means-tested public assistance available to all Americans, regardless of age.
Medicare coverage is divided into four parts: A, B, C and D
In 2016, over 3 million Ohioans received care under the Medicaid program.1
Part A: Covers medically necessary hospital, skilled nursing facility, home health and hospice care.
Unlike Medicare, Medicaid is funded both by federal and state funds.
Part B: Covers medically necessary doctor’s services, preventive care, durable medical equipment, hospital outpatient services, laboratory tests, X-rays, mental health care, some home health and ambulance services.
Dual eligible individuals, depending on their income and savings, qualify for varying levels of assistance with Medicare premiums, deductibles, coinsurances and copayments.
Part C: These are privately run substitutes for Parts A and B. Part D: Covers prescription drugs.
Coverage Problems with Medicare:
Coverage Problems with Medicaid:
• The most common mistake people make with Medicare is not signing up on time.
• Meeting the income and savings guidelines.
• Delays in enrolling can result in higher premiums or denials of coverage for Part D plans and Medicare supplement plans.
• Individuals need to be mindful of acceptable spend-down activities. • Be careful not to incur penalties for improper transfers during the five-year lookback period.
Find out more at the OSBA All-Ohio Legal Forum in Cleveland on Thursday, Aug 24, from 9:30a.m. to 10:30a.m. Go to ohiobar.org/forum for more information. 1
ODM Annual Report 2016 Fiscal year.
OHIO LAWYER JULY/AUGUST 2017
15
Practice Tips
10 Ways to Avoid Malpractice and Disciplinary Actions JACK SAHL Jack Sahl is the Joseph G. Miller Professor of Law and Director of the Joseph G. Miller and William C. Becker Center for Professional Responsibility at The University of Akron School of Law.
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OHIO LAWYER JULY/AUGUST 2017
The profession and the marketplace for the delivery of legal services are undergoing dramatic change, having been buffeted by tsunami-like forces during the past several years. Law schools are reducing the size of enrollment, staff and faculty in the face of declining applications and challenging employment prospects for graduates. Lawyers are experiencing painful rates of unemployment and underemployment in part because of increased competition from online legal services providers, law firm consolidation and the nation’s slow recovery from its 2008 economic collapse. Courts are dealing with limited resources to address increasing demands for their services. Much of the public is still struggling to obtain legal services and continues to be dissatisfied with the
cost, delivery and quality of the services that they do receive. These challenging developments arguably increase the risk that lawyers will become the target of disciplinary proceedings or legal malpractice actions, especially given the complexity of the law and advances in technology that reduce the amount of time that lawyers have to reflect on substantive legal matters. This risk is heightened by the increased competition to deliver legal services in a cost-effective manner, the sophistication of clients who expect competent, efficient and reasonably priced services and the litigious nature of consumers. The risk is further exacerbated by the ever-changing methods of and rules governing electronic communication
and the storage of information, and the magnitude of the risk is underscored by the prediction that law school graduates “will be the subject of three or more claims of legal malpractice before finishing a career.”1 The 10 practice standards outlined below are designed to minimize the risk that a lawyer will become the target of a legal malpractice or disciplinary action. Adherence to these standards should also reduce the risk of a lawyer becoming the object of a disqualification or a Rule 11 motion. While some of these tips may seem a priori for some lawyers, they serve as a concise reminder and helpful roadmap for even experienced lawyers to avoid problems.
Don’t shoot from the hip
Lawyers should avoid giving off-thecuff legal advice at social events or other occasions where persons seek their counsel about a problem. Lawyers should schedule a more formal meeting with the client, ideally at his or her office or even electronically, to properly interview the client. This reduces the risk of a lawyer giving bad or incomplete advice and underscores to the client the seriousness of the professional relationship. Remember, the threshold for establishing the lawyer-client relationship is a low one. The client’s reasonable reliance that the lawyer is advising or representing the client establishes the professional relationship and potentially exposes the lawyer to civil liability for malpractice.
Be prepared to say no
Lawyers often feel compelled to undertake representation for economic or other reasons. The “open-anotherclient-file” syndrome can create professional and personal problems for lawyers when they lack the expertise, interest, resources and time to competently represent the client. In this context, saying “no” or declining representation may be the best professional decision you make that day.
Have a good system for checking conflict of interests
Clients are entitled to the undivided loyalty of their lawyers or “conflict free” representation. Lawyers must be mindful of the potential for conflict of interests before undertaking representation and throughout the professional relationship. There are four general categories of conflicts: conflicts involving current clients, former clients, a third party or the lawyer’s personal interests. A reliable and efficient “conflict-check” system is a must for any lawyer.
Use written retention agreements
An agreement to represent a client on a contingency fee basis must be in writing. Nevertheless, lawyers should memorialize in writing their personal services agreement with all clients, irrespective of the fee basis. The agreement should outline the material terms and conditions of employment.
Don’t commingle money
Lawyers must keep client funds separate from the lawyer’s personal funds. This requires depositing client funds in either a separate trust account for the client or the lawyer’s Interest on Lawyer Trust Account (IOLTA) account. An important related concept requires the lawyer to return all unearned client funds to the client. Remember also that lawyers must leave funds in the trust account when the client disputes the lawyer’s entitlement to them. While lawyers are required to retain the portion of funds that are in dispute, the lawyer must promptly distribute the portion that is not in dispute.
Know your professional liability (errors and omissions) insurance policy
Lawyers need to carefully read their professional liability policies. Does it contain a “burning limits” provision, where the legal and other costs of defending a malpractice claim are deducted from the policy’s total liability
coverage? You may not want such a provision. Also, make sure that the type of work you provide constitutes legal services and is covered by your policy. Offering financial investment advice is probably not the practice of law and not covered by the policy.
Communicate with clients
A common criticism leveled against lawyers is their failure to communicate in a timely manner. Lawyers have an affirmative obligation to keep clients informed. Lawyers should have a “tickler system” in place to remind them to communicate periodically (or more often, if appropriate) with clients, even if it is just to inform them that there are no recent developments and that the lawyer has not forgotten them. It is not necessary that the communication be directly from the lawyer; an assistant can do it, as long as the assistant does not give legal advice. At the beginning of the representation, lawyers need to discuss with clients the confidential nature of their professional relationship, explaining the attorney-client privilege and Rule 1.6’s ethical duty of confidentiality.
Get involved with the bar
Lawyers should become actively engaged with bar associations. Bar involvement offers important opportunities for remaining current in one’s practice fields and building a network for professional support, including referrals. Joining bar committees may provide a chance to be more involved with professional responsibility issues.
Institute an office professional responsibility “brown bag” series
Law firms should offer internal educational sessions, such as informal brown bag lunch discussions, about recent developments and concerns about professional responsibility issues. These sessions can serve also as a convenient audit of the law firm’s operational policies.
OHIO LAWYER JULY/AUGUST 2017
17
Practice Tips Always consult with a professional responsibility expert
When a member of a certified grievance committee or the statewide discipline counsel’s office contacts you about possible misconduct, you are welladvised to consult with lawyers who specialize in lawyer discipline. Early consultation with such specialists may facilitate a fair and efficient resolution of an inquiry and does not contravene the lawyer’s ethical obligation to cooperate with the lawyer discipline process.
GRIEVANCES RECEIVED AND OPENED FOR INVESTIGATION A FIVE-YEAR COMPARISON (2012-2016)
Alleged Primary Violation
2012
2013
2014
2015
2016
Neglect/Failure to Protect Interests of the Client
256
320
259
211
262
Failure to Account or Turn Over File
70
61
31
24
26
Improper Withdrawal (Refusal to Withdraw)
9
8
12
7
15
Excessive Fees
76
75
71
61
66
These tips will help lawyers avoid professional problems. Unfortunately, some lawyers will find themselves enmeshed in the lawyer disciplinary process and subject to a variety of sanctions, including suspension and even disbarment. The gravity of the sanction will be impacted by mitigating and aggravating factors.
Personal Misconduct
88
126
78
80
65
Misrepresentation/False Statement/ Concealment
18
14
17
15
31
Criminal Conviction
5
14
12
33
8
Failure to File Income Tax Returns
0
0
1
0
0
Commingling of Funds
0
0
0
0
0
Find out more at the OSBA AllOhio Legal Forum in Cleveland on Thursday, Aug. 24, from 9:30 a.m. to 10:30 a.m. Go to www.ohiobar.org/ forum for more information.
Conversion
25
18
14
22
17
Embezzlement
1
2
5
1
1
Failure to Maintain Funds in Trust
338
254
237
256
180
Breach of Client Confidence
9
7
6
3
14
Conflict of Lawyer's Interest
36
34
26
19
41
Conflict of Client's Interest
55
35
46
37
53
Communication with Adverse Party Represented by Counsel
13
7
3
5
12
Trial Misconduct
82
71
90
72
101
Failure to Register
0
10
1
2
0
Practicing While Under Suspension
20
11
13
27
10
Assisting in the Unauthorized Practice of Law
5
6
6
4
2
Advertising/Solicitation
21
16
19
10
13
Judicial Misconduct
106
134
92
82
100
Mental Illness
0
0
1
3
2
Substance Abuse
4
5
1
4
1
Other
2
0
1
0
0
Total
1,239
1,228
1,042
978
1,020
Endnote 1
Jeffrey M. Smith & Ronald E. Mallen, Preventing
Legal Malpractice, x (1989).
Source: Office of Disciplinary Counsel 2016 Annual Report, http://www. supremecourt.ohio.gov/DisciplinarySys/odc/annualReports/2016.pdf
OHIO LAWYER JULY/AUGUST 2017
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When Uberization Collides with Attorneys by Tom Morrison
As you look within any industry, we are truly living in the most amazing times. Information, technology and consumer demands are changing at record pace how we do business. The question for every industry is: “Is your firm going to be adequately prepared for 2020?” Like two super heroes in the galactic society of super powers, “uberization” is now colliding with every industry like never before. The uberization of every industry will take twists and turns with three dynamic forces changing business models and brands that have been around for decades, including the legal profession. In an IBM study of over 5,000 C-suite executives, over 50 percent stated their number one fear was the “uberization” of their business model—meaning a technology or shift in the business model “out of nowhere” that occurs leaving them in the dust and irrelevant to their customers. Did you hear that? Over 50 percent have that fear. All you have to do is look at the impact Uber has had on the taxi industry and Zillow on the real estate industry to understand the fear. Both sets of these new technologies have sent shock waves in
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OHIO LAWYER JULY/AUGUST 2017
their industries. Many other industries are feeling the same impact.
to figure this out. If you do not face it and plan, your firm will be left behind.
The legal profession is primed for uberization for one reason—it is a $400 billion per year industry, primed for emerging technology and artificial intelligence to enter and change the business dramatically.
My motto for every company is “You must LIVE in the Future and ACT in Today.”
Change is not coming. It is already happening as we speak, and at a rapid pace like never before. Key questions to ask are: ∙ Does your firm understand the three forces causing rapid change? ∙ Do you know why uberization is happening? ∙ Do you know where it happens the most in every company? ∙ Does your firm have a plan to leverage the change coming in this uberization economy? The rate of change in the next three years will be more than we have seen in the last decade by far. The adapters will excel and thrive; the slow-to-move will struggle and see challenges. The key for any firm is that you cannot allow your leadership to wait until 2019
When I say “change,” that doesn’t mean change who you are. It is about shifting your mindset to use technology and new ways of doing business to be leaner on costs, have a more engaged connection with your clients and be able to take advantage of the demographic and consumer buying shifts that are creating immense opportunity for anyone who seizes it. No industry is exempt from “uberization.” It is critical that every industry seek to understand the three elements changing and reshaping the way people will do business in 2020 and beyond and the three primary areas where “uberization” happens. The three dynamic forces that are creating a fire-storm of change are: ∙ Emerging technologies; ∙ Consumer buying habits; and ∙ Demographic shifts.
Those who fail to research, shift their business model and capitalize on the changes taking place in the next three years will be challenged to compete in 2020 and beyond. These three forces are rapidly changing business models in a number of key areas.
In any industry, the following three elements always exist at some level in their business model:
There currently are 10 different emerging technologies, eight consumer buying habit changes and three demographic shifts all working together to create a perfect storm of change in our now “uberization economy.”
∙ Friction; ∙ Anxiety; and ∙ Stress.
Law firms can no longer move at a snail’s pace to keep up with the competition. Business models used to take years to dramatically change. Now, they change almost instantly without you knowing it. Discovering the uberization in your firm will be key in maximizing your value proposition to your clients. It is no longer good enough to just deliver a good product. You must deliver maximum value that engages your client with some element of a WOW factor.
The question for your firm is do you know where the friction, anxiety, and stress exist in these five key areas? ∙ Your product/service; ∙ Delivery of your service; ∙ Your operations; ∙ Client experience; and ∙ Work culture. If not, then you are risking uberization having a disrupting impact on your business model. Someone is out there seeking to make legal services faster, cheaper and more efficient to get their share of the $400 billion pie. You need to evolve and innovate so your firm is on the leading edge of any change.
It is critical, in today’s fast changing business climate where “Uberization” is everywhere, that law firms dig deep to find the friction, anxiety, and stress that exists in their business model, and create innovative and engaging solutions to remove all three. You can no longer talk about change coming to your firm. It is here, and here to stay. Uberization is colliding and will collide with your firm! The question is are you ready?
Author
Tom Morrison is President of Tom Morrison & Associates as well as CEO of the Metal Treating Institute. He is a 20-plus-year veteran in the association management field and one of the country’s leading experts on uberization’s impact on today’s business climate. Tom Morrison will be the opening plenary speaker at the 2017 All-Ohio Legal Forum on Aug. 24 at 8 a.m. at the Huntington Convention Center of Cleveland. For more information, go to www.ohiobar.org/forum.
OHIO LAWYER JULY/AUGUST 2017
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Statehouse Connection Ohio’s New State Budget – The Top 10 Things You Should Know TODD BOOK Todd Book is the OSBA Director of Policy and Government Affairs.
O
n June 30, we Statehouse regulars popped the proverbial Champagne bottle as Ohio rang in a new fiscal year. Just before midnight, Governor Kasich signed the $65.4 billion state budget bill into law, but not before taking full advantage of his line-item veto authority and issuing his own personal record of 47 vetoes. At this writing, we are waiting to see if the Senate will join the Ohio House, which in a rare move, voted to override the vetoes of 11 provisions the Governor struck. In the meantime, here are 10 things you should know about House Bill 49 – the State Budget Bill for fiscal years 2018-2019. 1. No sales tax on legal services Though state lawmakers used the budget to usher in hundreds of new policies, the bill does not include a tax on any form of legal services. This is thanks to the hard work of the OSBA and our service industry partners, who have worked to educate legislators over many years about why an expansion of the state sales tax would be bad for Ohio’s economy and consumers. The initial sales tax expansion language and the proposed rate increase were both removed from the bill in the Ohio
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OHIO LAWYER JULY/AUGUST 2017
House, and the Senate concurred. We are grateful to members from both chambers for their support, and will continue to be vigilant on this issue so we can hold the line on any sales tax expansion in the years ahead.
as-introduced version, the state budget continues to provide critical operational funding for Ohio Center for Law Related Education programs through line items in the Attorney General’s office and the Supreme Court of Ohio.
2. New venue to appeal rulings of the Board of Taxation Appeals A policy change included in the budget bill means individuals and businesses seeking to appeal rulings of the Board of Tax Appeals will no longer go automatically to the Supreme Court of Ohio, but instead to the appropriate court of appeals. However, a party may request that the Supreme Court take the case if the appeal involves a substantial constitutional question or a question of great public interest.
4. Funding for civil legal aid and indigent defense
3. Civics education remains a funding priority In all, state lawmakers were faced with closing a $1 billion shortfall in revenue to balance this year and very few agencies or programs were spared from budget cuts. Lawmakers wisely decided that it’s best not to mess with the most popular non-sports, extracurricular activity—the mock trial program. Though modestly cut from the
The Ohio Legal Aid Fund is slated to receive $10,000 per year in general revenue funds to support the good work they do providing civil legal aid services to low-income Ohioans and mobilizing pro bono providers across the state. And while we are pleased that in a tight budget year, we were successful in convincing legislators to increase the operating budget of the Ohio Public Defender’s office, much more must be done to stabilize funding for indigent defense, to increase reimbursement rates for appointed counsel, and to ensure more financial certainty to county courts. In the months and years ahead, the OSBA will continue to work with our partners to close the access to justice gap. 5. Combating the opiate crisis Ohio continues to lead the nation in
opioid overdose deaths, and so another major priority for Statehouse leaders this year was to identify funding to combat this crisis to the tune of $170 million. Funding will support treatment, prevention, law enforcement, drug courts, and child protective services. 6. No freeze in the Medicaid expansion...yet The Governor cited the opiates crisis as a primary reason he would not go along with legislators who inserted a provision to freeze enrollment in the Medicaid expansion starting in fiscal year 2019. In issuing the veto, he argued that it is through increased access to Medicaid that many have secured treatment, in addition to ensuring thousands of Ohioans at or below 138% of the federal poverty level have health coverage. Though they voted to override seven other Medicaid-related vetoes, the Ohio House did not seek to reverse the Governor on new enrollees...yet.
They are keeping an eye on the federal Obamacare debate and reserve the right to revisit the issue depending on how much funding Congress puts up to cover the Medicaid expansion in the future.
9. Drunk drivers to pay for lab tests Courts will now be permitted to seek reimbursement from convicted drunk drivers for the costs of lab analysis used to convict them.
7. Diverting non-violent felons from state prison to community corrections Despite objections from many prosecutors and some judges, some fifthdegree, non-violent felons will be routed to less expensive community corrections programs rather than state prisons.
10. Boozy frozen treats In unrelated news, the state budget also includes a provision that will allow liquor permit holders to make and sell ice cream that is up to six percent alcohol by volume. Now that’s a budget proposal we all can enjoy.
8. Elimination of Constitutional Modernization Commission The Ohio Constitutional Modernization Commission – the group established in 2011 to review the state constitution and propose potential amendments – has officially closed its doors after being abolished in the state budget bill. That’s four years earlier than originally contemplated.
This is only a snapshot of the many new policies in the state budget, be they controversial, impactful, or just downright quirky. Look for me at your county bar, committee and section meetings this summer and fall where I’ll cover more highlights and answer your questions. You can reach me at TBook@ohiobar.org.
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23
CLE VEL A ND
MAIL-IN REGISTRATION 12 HOURS CLE | NETWORKING OPPORTUNITIES
AUGUST 23-25, 2017
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OHIO LAWYER 24 Save $25 JULY/AUGUST 2017 by registering online at www.ohiobar.org/forum
CLE Calendar
LiveCLE
August 16, 2017
July 13, 2017
July 28, 2017
Elder Law Video Replay Part 1 Columbus, Cleveland, Fairfield, Webcast
From the Nixon White House to Trump Tower: A Unique Look at Executive Power with a Focus on Supreme Court Appointments Cleveland
July 14, 2017
August 3, 2017
August 17, 2017
Video Theater for Public Defenders Columbus, Cleveland, Fairfield, Webcast Estate Planning, Trust and Probate Law Section Update: Ohio HB 432 and SB 232 Video Replay Columbus, Cleveland, Webcast
July 18, 2017
Anatomy for Lawyers Video Replay Columbus, Cleveland, Perrysburg, Webcast
July 20, 2017
Solo and General Practice Video Theater Columbus, Cleveland, Dayton, Webcast
July 21, 2017
Advanced Topics in Commercial Real Estate Law Columbus, Webcast
August 8, 2017
Booze, Bullets & Bingo Video Replay Columbus, Cleveland, Fairfield, Perrysburg, Webcast
August 9, 2017
Decision Making for Lawyers: Distraction, Deception and Drunkenness Columbus, Cleveland, Fairfield, Perrysburg, Webcast
Trial Evidence: Artistry and Advocacy in the Courtroom Video Replay Columbus, Akron, Cleveland, Perrysburg, Webcast
August 10, 2017
July 25, 2017
August 11, 2017
Get Organized! Become Laser Focused, Eliminate Paper & Become More Mobile in 2017 Video Replay Columbus, Cleveland, Fairfield, Perrysburg, Webcast
July 26, 2017
Nuts & Bolts of Wills & Trusts Video Replay Columbus, Cleveland, Dayton, Perrysburg, Webcast
Advanced Topics in Commercial Real Estate Law Cleveland 2017 Medicare and Medicaid Forum Video Replay Columbus, Cleveland, Fairfield, Webcast
August 16, 2017
From the Nixon White House to Trump Tower: A Unique Look at Executive Power with a Focus on Supreme Court Appointments Columbus, Akron, Perrysburg, Webcast
August 18, 2017
From the Nixon White House to Trump Tower: A Unique Look at Executive Power with a Focus on Supreme Court Appointments Fairfield
August 18, 2017
Basics of Employment Law Video Replay Columbus, Cleveland, Fairfield, Perrysburg, Webcast
August 24-25, 2017
OSBA All-Ohio Legal Forum 2017 Cleveland
August 29, 2017
Taking & Defending Effective Depositions Video Replay Cleveland
Taking & Defending Effective Depositions Video Replay Columbus, Akron, Fairfield, Perrysburg, Webcast
OHIO LAWYER JULY/AUGUST 2017
25
Lawyer Lifestyle
Get out and golf! There’s nothing more relaxing (or altruistic) after a long week in the office than heading outside to one of Ohio’s golf courses to raise money for a charitable organization. From promoting childhood literacy and feeding the hungry, to working toward finding a cure for cancer, these golf outings are a fun way to support local charities that are strengthening our communities through their work. And whether you’re a seasoned pro or a golf newbie, these events are a guaranteed way to get active, enjoy the sunny weather and meet the community we serve— see you on the green!
Cleveland
Columbus
American Cancer Society’s Greater Cleveland Golf Classic
Mount Carmel Foundation Golf Invitational
August 14, 2017
Pinnacle Golf Course
Canterbury Golf Club
Funds raised from this event will help several students achieve their dream of being a professional registered nurse. Financial aid is given to over 90 percent of Mount Carmel College of Nursing students each year.
Proceeds go to the American Cancer Society to help save lives and find a cure for a disease that has taken too many lives. acsecnr.ejoinme.org/GreaterClevelandGolfClassic
Outdrive Hunger: 2nd Annual Golf Outing to Benefit Society of St. Vincent de Paul Hunger Centers July 21, 2017 Sleepy Hollow Golf Course This golf outing benefits the 13,000 Northeast Ohio men, women and children fed monthly at St. Vincent de Paul hunger centers. www.svdpcle.org/svdp-events/outdrive-hunger-inauguralgolf-outing-to-benefit-svdp-food-pantries/
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OHIO LAWYER JULY/AUGUST 2017
August 28, 2017
www.mountcarmelfoundation.org/events/foundationgolf-invitational
OBLIC Golfing for Greatness August 28, 2017
Join us for dinner, good company, drinks, raffles and fun at this charitable golf outing benefitting the OSBF Ramey and Weisenberg Funds. www.oblic.com/resource-events/2017/06/06/golfing-forgreatness-fundraiser/
Columbia Station
Hudson
Ohio Landscape Association Scholarship Fund Golf Outing
“A Home in One� Golf Outing
August 3, 2017
Mallard Creek Golf Club
July 31, 2017
Country Club of Hudson
Proceeds go to the OLA Scholarship Fund and includes 18 holes of golf, golf cart, driving range, door prizes, beverages, meals, contests and more.
Help support Habitat for Humanity of Summit County. The ticket price includes 18 holes with a cart, lunch, dinner, contests, two beverage tickets, door prizes and more.
www.ohiolandscapers.org/olagolf.html
www.hfhsummitcounty.org/golfouting.aspx
Fairfield
Lima
The Matt Haverkamp Memorial Golf Outing July 15, 2017
8th Annual Sand Trap Foundation Lima Golf Outing and Dinner
Fairfield Golf Course
August 5, 2017
Help support The Matt Haverkamp Foundation, which assists K9 operations in local law enforcement agencies. This golf outing is a four-person team scramble event. Registration includes 18 holes of golf with a cart and a catered dinner.
Tamarac Golf Course
matthaverkamp.com/events/memorial-golf-outing/
Galena (Delaware County)
Raise awareness and money for Allen County kids. The Sand Trap Foundation is partnering with all Teddy Bear Fund and Golf Leaf Behavioral Services. The outing includes golf, range balls, lunch, dinner, prizes and more. www.thesandtrapfoundation.org/
Rebel Financial 5th Annual Golf Scramble
Mansfield
Blackhawk Golf Club
The 19th Annual Newhope Charities Golf Outing
This golf outing is a four-person scramble.
July 21, 2017
Proceeds for this event go to the National Science Foundation (NSF) and the National Institutes of Health (NIH). Admission includes greens fee, cart, drink tickets and catered awards dinner with prizes.
Twin Lakes Golf Club
August 4, 2017
www.eventbrite.com/e/rebel-financial-5th-annual-golf-scrambletickets-27048979225?aff=es2
Proceeds from this event will support individuals served by Newhope. Richland Newhope supports those with developmental disabilities so that they can live, work and participate in the community. Newhope Charities complements this mission by promoting community events for community awareness and fundraising. Entry fee includes golf, cart, food, beverages, prizes and more. www.rnewhope.org/upload/documents/golf_outing_ brochure_17_final.pdf
OHIO LAWYER JULY/AUGUST 2017
27
Member Profile What led you to a career as an attorney?
During my undergraduate studies, I volunteered at a local refugee social service agency and mentored refugee middle school and high school students. I never really thought about becoming a lawyer until late in my undergraduate studies. My mentors and faculty advisors encouraged me to consider pursuing a career in law, and I soon realized that I could have a huge impact for immigrants with a law degree.
EUGENIO MOLLO JR. Advocates for Basic Legal Equality
YEARS IN PRACTICE:
10
MEMBER SINCE:
2013
CITY/COUNTY: Toledo/Lucas Want to nominate someone for the member profile checkout? Send an email to editor@ohiobar.org
Compiled by Tara Eaton, an intern in the OSBA Communications Department and a senior at The Ohio State University.
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OHIO LAWYER JULY/AUGUST 2017
In law school, I spent one summer working as a law clerk with Legal Aid of Western Ohio’s Farmworker Program in Fremont and another summer with Legal Aid of North Carolina in Raleigh. After graduating from law school, I returned to Ohio as an Equal Justice Works Fellow to work with Advocates for Basic Legal Equality (ABLE) in Toledo. More than 10 years later, I’m still working in this area as the managing attorney of the Agricultural Worker and Immigrant Rights Practice Group. Tying in my interest in teaching (my undergraduate degree is in education), I also teach Immigration Law at the University of Toledo College of Law as an Adjunct Professor.
What is the best advice you have received as an attorney?
Google gives conflicting information on who says this, but it is a motivating mantra for me, especially as of late: “There are three types of people in this world: those who make things happen, those who watch things happen, and those who wonder what happened.” Especially when times are tough for many of my clients, it’s essential that immigrants and refugees, and their allies and advocates, stay focused and try their hardest to make things happen. We can’t just watch or wonder. Be willing to take risks and fail.
What legal resource do you use the most?
My favorite legal resource is definitely my colleagues. They’re brilliant, motivating, creative and passionate
individuals who have never turned me down for five minutes to talk through a client matter. When it’s a Saturday night and I’m working alone, though, Kurzban’s Immigration Law Sourcebook wins the prize.
Proudest moment as a lawyer?
I’ve had many rewarding experiences in my practice. Times when I’m able to keep a family together in the United States, or help someone secure safety from persecution abroad or domestic violence in this country, are special days for me. Another special day occurred in 2016 when new Ohio Department of Health regulations were finalized to improve agricultural labor camp health and safety standards. I served on this Department’s rule review committee for the past few years, and the new rules took effect on January 1, 2017. Now, rules are in place so farmworkers have access to running water in their individual housing units, sleep on elevated beds, have locks on their exterior doors and enjoy privacy when using the toilet. Also, their children under the age of two now have space to eat and sleep. These are modern-day amenities that are sadly just making their way to agricultural workers in Ohio. But, we made things happen.
Fun fact
I’ve enjoyed a cup of coffee every day since the first grade. Initially, my cup was mostly milk and sugar, but my mom let me splash some coffee in there. I now drink it black, and I’ve carried on the daily tradition for 30 years. Here’s to 30 more years! Bonus fun fact: My husband and I married in October 2016, after being together for 10 years. His name is David Mann, and he’s an attorney and President of the Lucas County Land Bank.
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CLE VEL A ND
REGISTER NOW!
AUGUST 23-25, 2017
The OSBA Annual Meeting and Convention, now known as the All-Ohio Legal Forum, has a new date. Join us Aug. 23-25, 2017 in Cleveland, where you can earn up to 12 hours of CLE credit and network with colleagues and exhibitors.
Go to www.ohiobar.org/forum for more information.
CLE VEL A ND
AUGUST 23-25, 2017
Whether you find yourself in rough seas or calm waters, OBLIC will be there to protect your reputation when you need it most.
REPUTATION MATTERS. LET OBLIC PROTECT YOURS. Owned and Proudly Endorsed by the OSBA, OBLIC is the only carrier exclusively devoted to protecting Ohio attorneys. #REPUTATIONMATTERS Visit www.oblic.com to Apply Now or call (800) 227-4111 for more information.
2017 OSBA ALL-OHIO LEGAL FORUM August 23-25, 2017 Cleveland Convention Center / Marriott Key Center Cleveland, Ohio President Randall Comer Presiding THURSDAY, AUGUST 24, 2017: YOUNG LAWYER DAY Note: All daytime events at the Cleveland Convention Center; evening receptions at Marriott 7:00 a.m. – 5:30 p.m.
Registration Open
7:00 a.m. – 8:00 a.m. Continental Breakfast 8:00 – 9:15 a.m. Convention Welcome and Opening Plenary Session (1 hr. CLE) “What’s Your Uber?” Featuring Tom Morrison 9:30 – 10:30 a.m.
CLE Breakout Sessions (4)
10:30 – 11:00 a.m.
Networking Break with Exhibitors
11:00 a.m. – Noon
CLE Breakout Sessions (4)
12:15 – 1:45 p.m. OSBA Annual Luncheon 1:45 – 3:00 p.m. General Assembly Meeting (0.5 hr. CLE) 3:00 – 3:15 p.m.
Networking Break with Exhibitors
3:15 – 4:15 p.m.
CLE Breakout Sessions (4)
4:30 – 5:30 p.m. CLE Breakout Sessions (4) 6:00 – 7:00 p.m. Law School Receptions (Marriott) 7:00 – 9:00 p.m. 9:00 – 11:00 p.m.
President’s Reception (Marriott) Young Lawyers Section After-Hours Party at Pickwick and Frolic
Thursday’s CLE total: 5 ½ hours
Thursday’s Opening Plenary: Tom Morrison is President of Tom Morrison & Associates as well as When Uberization Collides CEO of the Metal Treating Institute. He is a 20-plus-year veteran in with Attorneys the association management field and one of the country’s leading By Tom Morrison
experts on uberization’s impact on today’s business climate. Find full article on page 19 of Ohio Lawyer.
FRIDAY, AUGUST 25, 2017: Note: All events at the Cleveland Convention Center. 7:30 – 8:30 a.m.
CLE Video Replays (3)
7:30 – 8:45 a.m.
Continental Breakfast
7:30 a.m. – 1:30 p.m. Registration and Exhibits Open 8:45 – 10:15 a.m. CLE Breakout Sessions (4) 10:15 – 10:45 a.m.
Refreshment Break in Exhibit Hall
10:45 a.m. – 12:15 p.m.
CLE Breakout Sessions (4)
12:15 – 1:15 p.m. Complimentary Luncheon with Exhibitors in the Exhibits Area 1:30 – 3:00 p.m. CLE Breakout Sessions (4) 1:45 – 5:00 p.m.
Paralegal Activity – Wills Clinic at Riverview Towers (see website for details)
3:00 – 4:00 p.m.
CLE Video Replay (2)
Friday’s CLE total: 6 ½ hours
For more information, visit www.ohiobar.org/forum or go to page 24.
Overnight accommodations. Discounted group rate at Cleveland Marriott Downtown at Key Center - $169 plus applicable tax. For reservations: (800) 228-9290 or 216-696-9200 Room Block Cutoff: Aug. 1, 2017
CLE SCHEDULE THURSDAY 9:30 - 10:30
THURSDAY 11:00 - 12:00
THURSDAY 3:15 - 4:15
*Identification and Application of Mitigating and Aggravating Factors
Ohio Legislative Update on Commercial and Residential Real Property
The Changing Landscape of Ohio’s Administrative Law
This program is designed to highlight what lawyers can and cannot do to minimize the potential seriousness of a disciplinary sanction, and to provide helpful tips for avoiding professional discipline.
The program will provide a discussion and insight into Ohio’s recently enacted expedited foreclosure and curative real property legislation and will be informative for both residential and commercial real property lawyers and paraprofessionals.
Develop Yourself Through Bar Leadership Panel discussion including strategies for advancing your career and expanding your network through bar association leadership.
In re Gault: Due Process, Procedural Safeguards, Children and Avoiding a Repeat of History A reflection on the landmark decision of In re Gault and its impact throughout the years; where we were, where we are, and where we need to be. This session also includes a case law update and a time for questions.
Medicare & Insurance Coverage: What to Know Including a discussion of the Medicare enrollment process, the differences between Medicare and Medicaid, and an update on the Affordable Health Care Act, or what’s left of it.
*Stress Management for Lawyers How to prevent malpractice and ethical violations, as well as burnout, depression, and substance abuse.
Assisting Clients with Special Needs: A look at STABLE Accounts This presentation will address what STABLE accounts are, when to use them, and why they can provide benefits to clients with special needs. The presentation is designed to provide the attendee with the basics of the account operation.
*Cyber Security and Data Breach Management, A Whole New Ball Game Discussion of the latest cyber security topics led by members of the Cleveland FBI field office.
*Denotes professional conduct session. VR = video replay
An update on the administrative law landscape, including new or proposed licensees, areas of law, and rules, as well as recent court decisions.
Possession of Animals Property or Something More? This CLE will focus on civil replevin actions including a primer on how to do replevin actions. It will also examine boarder’s liens, veterinarian’s liens and the animal custody provisions of ORC 959.132 when an animal is seized as part of a criminal investigation.
Must Know Changes for Representing OVI Clients, HB 338 and Case Law Developments Hidden consequences and traps for OVI lawyers in HB 338 and current developments in Intoxilyzer 8000 Litigation.
*Succession Planning: What You Need to Know to Appoint a Successor Attorney for Your Practice Discussion of new Supreme Court Board of Professional Conduct Ethics Guide on Succession Planning for Unexpected Death, Disability or Discipline.
THURSDAY 4:30 - 5:30
FRIDAY 7:30 - 8:30
Protecting Your Client’s Trade Secrets
Putting Intent into Ohio’s Employment Intentional Tort VR
A new law creates a federal civil cause of action for misappropriation of trade secrets. This presentation explains the requirements to obtain trade secret rights and the options for enforcement.
Agreements that Protect and Promote Growth This program will discuss the legality and enforceability of employment clauses. These have come under antitrust scrutiny with the Department of Justice and the Federal Trade Commission announcing that these clauses are an enforcement focus.
When it Rains... Insurance Coverage and Legal Issues Arising From a Property Damage Casualty Loss This CLE will discuss insurance coverage and the legal issues arising from a property damage casualty loss. The CLE will also suggest practical tips for attorneys handling these types of claims in order to reach a fair result for all involved.
Get Organized and Become Laser-Focused – Distraction, Time, Task & Email Management for Legal Professionals This seminar provides information on the benefits of a paperless office and the best way to become paperless. Topics include document management, how to use your iPad to become more mobile, email management and much more.
In 2005, the General Assembly rewrote R.C. 2745.01 and the Supreme Court of Ohio has emphatically supported - and enforced - that change while some lower courts apply some version of the old law. This webinar will review this claim, discuss recent decisions interpreting it, and examine strategic considerations for bringing and defending the claim.
Bankruptcy for NonSpecialists VR This course is a quick refresher course in bankruptcy law. It will cover whether a client qualifies for a bankruptcy case, the differences between bankruptcy chapters, assets which may be at risk, pre-bankruptcy planning, debts which may not be discharged, and guidance in sample bankruptcy cases.
Probate Litigation from a Plaintiff’s Perspective The amount of adversary actions filed in Ohio’s probate courts is growing. This seminar will offer practice tips for potential plaintiffs in contested probate matters, such as: will/trust contests, breach of fiduciary duty actions, etc.
FRIDAY 8:45 - 10:15 *Enhancing Your Practice, Workplace and Profitability: Specific Strategies for Increasing Diversity and Inclusion
We talk about the importance of diversity and inclusion in the workplace. But how can employers actually make it happen? Four panelists from public and private sector workplaces, including those who employ lawyers, will answer this question from their professional knowledge and personal experience.
Special Guests: Ohio Industrial Commissioners. What to Know About Practicing Before the OIC Industrial Commission update by the commissioners and case law update.
Representing Service Members and Their Spouses in Family Law Cases Discussion of issues relating to the representation of military service members and their families.
Win Your Case in Voir Dire This program will have two parts: (1) a live mock voir dire presentation with two attorney panelist engaging in voir dire, presided over by the judge panelists; and (2) a panel, moderated by a judge, that includes feedback on the live mock voir dire presentations, tips, strategy, a look at applicable law/rules and, pitfalls to avoid.
FRIDAY 10:45 - 12:15 Immigration Law for Novices and the Just Plain Curious
This seminar will present an overview of recent events and changes in immigration law. After an introduction to the fundamentals of the law, the panel will discuss how changes in policy and federal regulations are impacting everyday criminal law and employment law practitioners.
Current Developments in Estate Planning, Trust and Probate Law Changes in estate planning under the new administration, including releases in trust terminations and resignations, and removals.
How to Avoid UPL for the Paralegal Discussion of strategies for avoiding UPL.
*5 Things You Can Do To Rock Your Practice • Use Quick Tech Tips • Follow Practice Management Pointers • Avoid IOLTA Traps • Know Ethics of Using
Websites & Social Media • Track Trends: Developments that affect your practice
FRIDAY 1:30 - 3:00 The Sky is Falling?... Changes in Drone Law Current FAA Regulations, certification, and update on case law. Applications for law enforcement, farming, building and zoning and real estate.
Current Developments in Estate Planning, Trust and Probate Law Discussion of the decision in the Robertson case, terminating private foundations and finding the right charitable vehicle.
Getting to Whole: A Discussion of Ohio’s Subrogation Laws Discussion on reimbursement, consumer leverage and liability.
90 Legal Tips, Tricks, Apps, for Lawyers in 90 Minutes Fast paced and informative legal technology presentation.
FRIDAY 3:00 - 4:00 Contempt in Domestic Relations Court VR A review of the different types of contempt proceedings -- direct or indirect, civil or criminal -- and a discussion of tips and techniques for avoiding reversal on contempt and for avoiding the use of contempt proceedings altogether.
Workers Compensation: The Hearing Process VR This program includes a mock trial and will provide an overview of the Administrative Hearing Process and best practice advice for making your argument successfully.
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