November/December 2015

THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

November/December 2015

It’s time for your health law checkup

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Lawyers living with depression: A first-hand account

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OhioLawyer

Vol. 29 No. 6 Departments 5 | President’s Perspective Depression in the legal community: Signs, symptoms and help 7 | In Brief Businesses target fair systems for enterprise; Security a major law firm technology concern; Judicial Conduct and Disability proceedings made more precise; Considering alternative career paths; Firms failing with customer calls

Features

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12 |

Ohio legacy trusts 101

by Ted Gudorf and Michael Menninger Passed in March 2013, the Ohio Legacy Trust Act changed the rights of Ohio creditors, trustmakers, trustees and their assets. Learn the rules of creating, protecting and planning legacy trusts in Ohio.

22 | Beyond the Courtroom You do not walk alone: Lawyers living with depression

The Walking Dodd

24 | Practice Tips How to prepare a client’s civil case for mediation

by Alexander McElroy As the Ohio General Assembly decides how to interpret the Dormant Mineral Act and its amendments, court cases and mineral rights are stuck in the mud.

ight Ohio’s heroin epidemic with the 16 | Fmost effective treatment

21 | Did You Know?

It’s time for your health law checkup

by Jane P. Novick, Esq., and David M. Novick, M.D. While many drug courts rule out medicationassisted treatment for addicts, it may be the most successful treatment available, despite its stigma in the legal system.

26 | Inside OSBA 2016 All-Ohio Legal Forum save-the-date; Nettie Cronise Lutes Award nominations; Membership renewals; Call for articles 27 | Foundation News Self-nominations for fellows program; Join the conversation 28 | Books & Bytes Book review of Gateway to Freedom: The Hidden History of the Underground Railroad 29 | Member News Awards and community involvement of OSBA members 31 | Statehouse Connection Upcoming Senate bills involving the OSBA 32 | CLE Calendar November and December programs

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November/December 2015

Ohio Lawyer

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

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

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President: John D. Holschuh Jr., Cincinnati President-elect: Ronald S. Kopp, Akron

William Kaufman, Lebanon Alan J. Lehenbauer, Swanton Kris Long, Columbus Joseph L. Ludovici, East Liverpool Kevin P. Murphy, Warren Stephen L. Smith, New Bremen Judge James Stevenson, Sidney

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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 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.

Letter to the Editor I was interested to read Bradley S. Le Boeuf ’s review of John W. Dean’s The Nixon Defense: What He Knew and When He Knew It, and learned quite a bit from it (Ohio Lawyer, July/August 2015, p. 22). I notice Le Boeuf referred to Warren Burger as “U.S. Supreme Court Chief Justice.”

The correct title actually was, and is, “Chief Justice of the United States.” This is largely due to the efforts of Salmon P. Chase, an Ohioan who was appointed Chief Justice by President Lincoln in 1864. Chase was somewhat egotistical and wanted a grander title than it had originally been, so he dubbed himself “Chief Justice of the United States” (and thus, not just of the Supreme Court itself). Congress went along shortly after, and later Chief Justices have all borne the modified title. On the Supreme Court, the Chief Justice is primus inter pares, but he is not the boss. The current title emphasizes the Chief Justice’s role as the leader of the judiciary, a coequal branch of the federal government.

For further information, I refer you to Robert J. Steamer’s Chief Justice: Leadership and the Supreme Court (University of South Carolina Press, 1986); The Office of the Chief Justice, published by the White Burkett Miller Center of Public Affairs (University of Virginia, 1984), and to 28 U.S.C. Sec. 1.

Keep up the otherwise good work.

Mag. William Vodrey, Cleveland Municipal Court

Manuscript Submission

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.

Manuscripts are not purchased, and those submitted become the property of the Ohio State Bar Association. Editorial policies can be obtained by calling (800) 282-6556 or (614) 487-2050 or visiting www.ohiobar.org/editorialpolicy.

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November/December 2015

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CALL FOR CLE SPEAKERS The OSBA hosts hundreds of continuing legal education seminars throughout the year in all sorts of formats—live, webcasts, podcasts— and we’re constantly on the lookout for new speakers and topic ideas. Our goal is to deliver helpful, practical, law-related information to Ohio lawyers.

Interested? Please contact Jen Harrell at jharrell@ohiobar.org or (800) 282-6556.

CALL FOR AUTHORS Six times a year, the OSBA publishes its award-winning Ohio Lawyer magazine for its members. Select articles are also shared more widely through the OSBA website. Have a topic you’d love to write about? Submit an article for Ohio Lawyer.

Interested? Please contact Nina Corbut at ncorbut@ohiobar.org or (800) 282-6556.

Each month the OSBA provides consumer-friendly columns on legal topics of interest to more than 200 Ohio media outlets. Your name and firm will accompany each column you write, both online and in print. These columns are a great public service and provide exposure for you and your firm.

Columns are also shared on the OSBA website and social media.

Interested? Please contact Debby Cooper at dcooper@ohiobar.org or (800) 282-6556

SAVE THE DATE

12/1/2015

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November/December 2015

President’s Perspective Depression in the legal community: Signs, symptoms, and help Ken Jameson was a year ahead of me in law school. He had been a cheerleader at Ohio State, was on the moot court team and always had a smile on his face. After graduation, I would see Ken at the courthouse, and we would always chat about our families and our practices. Ken was always very upbeat, happy, and proud of his wife, family and law career.

Ken took his own life when he was 58 years old. Only then did I learn of his history of depression, his physical problems due to a back injury and the stress and anxiety he self-imposed with his work. Just Google “Ken Jameson obit,” and you can read about Ken and see his smiling face. His death was, to say the least, a shock to his law partners, friends, and family.

I couldn’t help thinking about Ken when I read the article by Ohio lawyer Stephanie Mitchell Hughes on page 22. Thank goodness she got the help she needs, and is keenly aware of her depression. This made me think about all the other folks who may be suffering from depression and need help. What can they do, what can others do, what are the signs and symptoms and what help is available for depression?

Fortunately, there are answers.

Depression is prevalent in our profession. I found out it starts in law school. I talked with Tabitha Hochscheid, an attorney in Cincinnati who was a good friend of Ken’s. Since Ken’s death, Tabitha has focused efforts on mental health not only here in Cincinnati, but also across the

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nation. She told me that 40 percent of law students have depression after their second year in law school. The University of Cincinnati College of Law currently brings in a mental health adviser one day a week to help students.

I’m sure other schools have similar programs, so the problem starts early.

According to a Johns Hopkins study, attorneys suffer from depression at a rate four times that of the general population. Tabitha referred me to a very enlightening website: Lawyers with Depression (www.lawyerswithdepression.com).

the person previously enjoyed doing. For example, someone stops exercising, socializing, or going out to dinner and instead becomes more isolated.

2. The person has difficulty making decisions.

3. The person has low self-esteem.

4. Changes in the person’s sleep habits.

5. Changes in the person’s eating habits, either eating

Attorneys suffer from depression at a rate four times that of the general population.

I went to the website and watched a video: “A Terrible Melancholy: Depression in the Legal Profession”.

I encourage everyone to watch this video. It is a true eye opener.

So what are the warning signs that a friend, colleague, or even a family member may be depressed? I talked with Megan Snyder, MSW, LISW, who is the Clinical Director at the Ohio Lawyers Assistance Program (OLAP). Megan told me depression can cause many symptoms: 1. Loss of interest in activities

more or less than usual.

Pat Garry, a good friend and colleague in Cincinnati, works for OLAP. As Pat told me, “Awareness and education reduce numbers!” How true. But where do we go for help?

While there are many mental health organizations across the state, and even some with local bar associations, OLAP is here to help folks in the legal profession. All communications

with OLAP are confidential.

Megan advised that approximately 60 percent of OLAP’s referrals are

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for mental health issues. OLAP has professional mental health workers on staff and is always here to help. Folks can either call OLAP on their own if they feel they need help, or friends or colleagues can call. In the case where other attempts at getting help have failed, intervention is available.

Intervention occurs when friends and colleagues confront the person needing help, and tell the person they won’t tolerate the status quo and the person must accept help. The key is that help is available and OLAP is there to provide it.

THOMAS TANEFF CO., LPA

As you can tell, I reached out for information and help about the subject of depression in our profession, and I certainly learned a lot. As Megan told me, “There are no false pretenses—it takes courage to take action.” And as Pat told me, “It does take courage to make the call. It can be a very difficult call to make, but the call can lead to glorious results!”

So, my friends, if you or a friend or a colleague may need help, make the call to OLAP. You may save a life.

John D. Holschuh Jr. is the president of the Ohio State Bar Association.

Contact OLAP If you or a colleague you know need help, contact OLAP at one of the numbers below. Your confidentiality, and the confidentiality of anyone about whom you express concerns will be protected.

“Adoption/Surrogacy. I know this stuff!"

Thomas Taneff (614) 241-2181 w w w.taneff law.com

Landex Research, Inc. PROBATE RESEARCH

Website: www.ohiolap.org 24/7 Toll-Free OLAP Helpline: 1-800-348-4343 Mission: The Ohio Lawyers Assistance Program is a private, non-profit 501(c)(3) organization dedicated to helping Ohio’s judges, attorneys, and law students obtain treatment for substance abuse, chemical dependency, addiction, and mental health issues. OLAP has existed since 1991 and is active across the state of Ohio. Through OLAP, judges, attorneys, and law students receive: •

Confidential advice about individual problems

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Help in deciding between outpatient, inpatient, and other treatment programs

•

•

Help in arranging and implementing formal interventions

Monitoring and aftercare services

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 www.landexresearch.com

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November/December 2015

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In Brief

Compiled by Cat Dismukes

Businesses target fair systems for enterprise

Seventy-five percent of businesses use their perception of an area’s tort liability system when making sales or business expansion plans. The U.S. Chamber Institute for Legal Reform conducted a study to rank each state’s perceived fairness within the tort liability system.

Each state was evaluated by in-house general counsel, senior litigators or lawyers and senior executives; all evaluators were required to be familiar with litigation issues at companies with annual revenues of at least $100 million and litigation experience in the concerned state within the past four years. The states were graded on an alphabetical grade system under each of these subcategories:

Security a major law firm technology concern

In 2015, 41 percent of firms increased their technology budget, 15 percent decreased their budget and 44 percent maintained the same budget as in previous years according to the 2015 ILTA/InsideLegal Technology Purchasing Survey.

The top five tech purchases included laptops/notebooks (67 percent); desktop hardware (60 percent); network upgrades (51 percent); printers/ MFDs (49 percent) and antivirus/ antispam software (40 percent).

Security was a major concern according to the survey. Security software/ security assessments ranked 6th in “what firms purchased last year” and 5th in “planned purchases for next year.” Additionally, security management overtook email management as the top priority in firms, yet more money still filters into technology management rather than cybersecurity in large firms.

•

Treatment of tort and contract litigation;

•

Having and enforcing meaningful venue requirements;

•

Treatment of class action suits and mass consolidation of suits;

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Damages;

•

Timeliness of summary judgement or dismissal;

•

Discovery;

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Scientific and technical evidence;

The Judicial Conference of the United States altered rules for the judicial conduct and disability proceedings.

The changes provide a more concise reading of the rules and include:

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Judges’ impartiality;

•

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Judges’ competence;

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Juries’ fairness.

Requiring that any rejected misconduct or disability complaint be posted on the court’s public website (Rule 24).

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“Retaliating against complainants, witnesses, or others for their participation in the complaint process” and “refusing without good cause shown, to cooperate in the investigation of a complaint under these rules” are considered “cognizable misconduct” (Rule 3h).

The results ranked Ohio as 27, with Delaware as 1 and West Virginia as 50.

—instituteforlegalreform.com

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—insidelegal.com

•

Increasing the definition of disability to include the “impairment of cognitive abilities that renders the judge unable to function effectively.”

These rules ensure judges do not have a disability, mental or physical, that inhibits their ability to complete their duties and so they do not preside over cases in a prejudiced manner.

—uscourts.gov

Considering alternative career paths

Twenty percent of attorneys would have enjoyed business management or marketing if they had not chosen to become lawyers. These findings come from a Robert Half Legal survey that asked 200 attorneys from a variety of firms to reconsider their career path. Other top fields included academia/education (12 percent), STEM fields (12 percent) and finance/economics (12 percent).

—roberthalf.com

Firms failing with customer calls

Judicial conduct and disability proceedings made more concise

Only 25 percent of consumers are satisfied with the way legal firms handle their phone calls, new research has revealed. The PH Media Group surveyed more than 2,000 people in attempts to discover which field has the worst phone manner. Insurance companies performed the best (41 percent) while architecture firms have the lowest satisfaction rate (20 percent). The average satisfaction rate for all businesses is 32 percent.

—PH Media Group

November/December 2015

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TITLE

Ohio Legacy Trusts 101

By Ted Gudorf and Michael Menninger

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November/December 2015

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TITLE Passed in March 2013, the Ohio Legacy Trust Act changed the rights of Ohio creditors, trustmakers, trustees and their assets. Learn the rules of creating, protecting and planning legacy trusts in Ohio.

Owners of small businesses and farms, high net worth individuals and professionals with significant liability exposure often struggle to shelter their assets from creditors in a way that is straightforward, coherent and fully compliant with the law.

To that end, many in the asset protection community cheered when the Ohio Legislature passed the Ohio Legacy Trust Act (OLT) on March 27, 2013. This act empowered individuals to construct trusts that provide numerous benefits, chiefly the establishment of a formidable barrier between trust assets and future creditors of the trustmaker. Even though the asset protection features of the trust, in and of themselves, are enough to celebrate, a trustmaker may also retain the right to be an income and principal beneficiary of the trust.

Ohio is not the first state to establish

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Domestic Asset Protection Trusts (DAPT). That honor goes to Delaware and Alaska, which passed similar laws in 1997. Like its predecessors, the Ohio Legacy Trust Act takes an aggressive anti-creditor stance.

Advocates argue that the advent of the Ohio Legacy Trust will encourage wealthy individuals from across the country to bring their money into Ohio’s banks and financial institutions.

They claim these trusts will increase Ohio’s tax revenues, inject money into the economy and increase job opportunities within the state. Critics, however, worry that the strong anticreditor provisions might, among other things, shield negligent or careless professionals from appropriate liability.

This article will explain the critical basics of these fascinating instruments and explore the implications they have for business owners, farmers,

investors, creditors and those who represent these parties.

Creating the Ohio Legacy Trust

The OLT, while a sophisticated planning tool, essentially requires that five elements be in place to ensure validity. First, the trust document must be in writing and be subject to Ohio law. Second, the trustmaker must appoint an independent Ohio trustee. In other words, the trustee may not be related or subordinate to the trustmaker or any institution that could benefit from the OLT. For example, a trustee could be a corporate bank, a certified public accountant or an attorney, but likely not the CFO of the trustmaker’s closely held company.

Third, the trust must be irrevocable.

Once it has been established, the trust cannot be changed except under limited circumstances.

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Fourth, the document must include a “spendthrift provision” that prevents a beneficiary from assigning away, and creditors from attaching, his or her beneficial interest in the trust.

Fifth, and unlike a number of other states which permit DAPTs, there is a due diligence requirement: The trustmaker must execute an affidavit with numerous provisions, one of which establishes that, after depositing assets in the OLT, the trustmaker will remain solvent. While there are numerous other important considerations in forming an OLT, the rules for who can form an OLT are relatively liberal. In fact, individuals, partnerships and limited liability companies alike both in Ohio and out of state can create these vehicles.

A powerful tool in the Ohio estate planning and business planning toolbox

An Ohio Legacy Trust is not intended to replace traditional estate planning tools, such as revocable living trusts, prenuptial agreements and limited liability companies. In fact, most often, the assets in the OLT remain a part of the trustmaker’s taxable estate.

In addition, the OLT is normally a grantor trust, and the trustmaker remains liable for any income tax on trust assets during the grantor’s lifetime. Finally, while an OLT does not replace the essential estate planning documents mentioned above, it does allow for the disposition of property during the trustmaker’s lifetime and upon death, and a trustmaker should consider and design his or her trust for how and when beneficiaries, including the trustmaker, can tap the trust.

One unique strategy is to not expressly name the trustmaker as a lifetime beneficiary, but instead permit a trust advisor to add the trustmaker as such at a later date. OLTs can be used for other purposes as well, including premarital planning. Specifically, the OLT will be protected from a spouse’s claim for alimony, provided that the trustmaker establishes and funds the OLT prior to tying the knot. As a result, this

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tool is now being considered as a powerful prenuptial planning device in addition to the more “classical” use as a creditor shield. It is worth noting that the Ohio Legacy Trust Act carves out an exception in the case of child support, such that OLT assets may be used to satisfy such an obligation.

Assets that can be protected

As with any kind of trust planning, a trustmaker can fund virtually any type of asset into an OLT, including deposit and investment accounts, stocks, business interests, and artwork, jewelry and other valuable personal property.

Any transfer of assets into an OLT is considered a “qualified disposition,” subject to the same limitations on the transfer of assets in general, and such transfer cannot be done with the purpose to hinder, delay or defraud creditors. Since the trustmaker surrenders direct control of the assets to the trustee, experts advise putting only those “rainy day” assets the trustmaker wishes to protect into the OLT. The transferor also must establish terms regarding when and how these assets can be distributed, both to the trustmaker and to any beneficiaries.

Due in large part to the unique structure of these instruments, specifically the fact that the trustee, as opposed to the trustmaker, controls when and how distributions can be made, most asset protection attorneys advise clients to avoid putting assets into OLTs that are needed to fund recurring or urgent expenses (e.g. mortgage payments, business loans or monthly utilities).

Substantial trustmaker rights

Transferors may hold substantial power in that they can change trustees, establish successors for ownership of the trust, change the names of heirs and beneficiaries as well as alter the terms by which these people or institutions can access what is in the trust and take charge of investments.

Furthermore, the trustmaker can still use real estate or other personal effects (such as artwork, jewelry or valuable

November/December 2015

technology) and can veto certain distributions. The trustmaker can also set aside some assets or income from the trust to pay for expense items, such as taxes that the trust owes (or will owe), estate administration and the trustmaker’s debts.

The trustmaker must formally request that assets be distributed for a particular purpose, and the OLT may only allow such distribution under the terms of the trust and for the particular purpose the trustmaker espouses.

For the trustee to make distributions pursuant to the trustmaker’s request, the trustmaker must have formed and funded the trust correctly. In addition, the trustee must have access to and agency over the trust principal and income. Finally, a time limit of 18 months must elapse, during which time no creditor or other entity asserts or threatens a claim against the trustmaker or the trustee (in the capacity of trustee). While the OLT is not absolutely impermeable to creditors, if properly drafted, funded and managed, it can create significant, and even insurmountable, hurdles for creditors to overcome.

What can creditors do, if anything, to access funds in OLTs?

Creditors who seek to penetrate the trust’s barriers generally must demonstrate that the trustmaker transferred the assets to the OLT with the specific intent to defraud the specific creditor bringing the action, and the creditor must bring any such claim typically within 18 months of the transfer to the trust (unless the creditor has a claim based on an act or omission of the trustmaker that occurred prior to the transfer, in which case, other statute of limitations rules apply). Among all state DAPTs, Ohio’s statute of limitations in this regard is the shortest. Moreover, a creditor must prove the trustmaker’s intent to defraud the creditor by “clear and convincing evidence,” the highest standard that can be applied in civil law. Ultimately, even if a creditor is

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successful in attacking the OLT, its claim may still be subject to priority determination among other creditors.

The asset protection the OLT provides is not without limitations.

For example, assets that the trustee distributes to beneficiaries, including the trustmaker, may be subject to attachment by the creditors of such individuals. Furthermore, an OLT alone will not assist a trustmaker in his or her efforts to qualify for government benefits, such as Medicaid or Veterans Administration Aid & Attendance; a trustmaker must use other planning techniques to protect assets from the nursing home or other long-term care costs.

Potential out-of-state issues

If a creditor takes a judgment against the trustmaker in another state, an Ohio court would first need to enforce the out-of-state judgment. Depending on how the facts of the case implicate choice-of-laws issues, the Ohio Legacy Trust Act may not offer the same protections as it would against a claim from within Ohio. For example, if an Ohio physician treats a patient in Indiana, and that patient suffers

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complications, which give rise to a claim against the physician, the OLT might be vulnerable to the Indiana judgment certified in Ohio. Likewise, in bankruptcy cases, creditors may prevail under federal law to pull assets from an OLT. These and other issues will be answered in the coming years as Ohio’s case law on OLTs is developed.

Finding the right answer

Even though OLTs have only been permissible for two years, they have generated significant dialogue in the asset protection realm. They offer persons with significant ties to Ohio who are exposed to the risk of substantial loss the ability to be proactive in preserving their estates for their beneficiaries. Given the complexities of OLTs and the fact that they should generally be used in the context of a broader business or estate planning strategy, an interested individual should strongly consider working with a counseling-oriented attorney experienced at creating, amending and maintaining asset protection trusts to ensure best practices, anticipate unlikely but serious contingencies, and ensure peace of mind.

Author bios

Ted Gudorf is the owner of Gudorf Law Group, LLC in Dayton. Gudorf Law Group is a boutique estate planning, tax advisory and elder care law firm. Ted obtained his Master of Laws degree from Western New England College School of Law. He is an AV-rated, OSBA Certified Specialist in estate planning, trust and probate law.

Michael Menninger graduated from Northern Kentucky University Salmon P. Chase College of Law in 2006.

Still under 40, Michael has been named a Rising Star by Ohio Super Lawyer’s Magazine numerous times. He has significant experience in estate, trust and guardianship matters, as well as in debtor/creditor litigation, which gives him a unique perspective on asset protection issues.

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TITLE

By Alexander McElroy As the Supreme Court of Ohio decides how to interpret the Dormant Mineral Act and its amendments, court cases and mineral rights are stuck in the mud.

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November/December 2015

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TITLE Billions of dollars are currently being spent to develop Ohio’s oil and natural gas, but before drilling can begin, oil and gas producers must first lease the oil and gas rights from the owners of those rights. Sometimes oil and gas rights have been severed from the surface estate, and some severances are decades old, making it difficult, if not impossible, to identify the current holders of those severed interests. To address this situation, the Ohio General Assembly enacted the Dormant Mineral Act to allow for dormant mineral interests to be deemed abandoned after 20 years of non-use.1 The original act became effective in 1989 (“1989 Statute”), 2 and was later amended in 2006 (“2006 Amendment”), 3 and in 2013.4 The Supreme Court of Ohio currently has a number of cases before it regarding the correct application of the Act. This summer the Supreme Court decided its first Dormant Mineral Act case, Dodd v. Croskey.5 In Dodd, the Supreme Court of Ohio applied the 2006 Amendment and held that the severed mineral interest holders, Croskey, et al., preserved their mineral estates (severed in 1947) under the Dormant Mineral Act.6 But in a unique twist that illustrates a key issue currently facing the Supreme Court of Ohio, it may turn out that Croskey, et al., preserved interests that no longer existed.

The 1989 Statute became effective March 22, 1989, and provides that any mineral interest held by any person, other than the surface owner of the lands subject to the interest, shall be deemed abandoned and reunited in the

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surface estate unless it is a coal interest, or owned by the government, or has been subjected to a “Savings Event” within the preceding 20 years known as the look-back period.7 Under the 1989 Statute, if a mineral interest was held by any person other than the surface owner prior to March 22, 1969, and a savings event did not occur between March 22, 1969, to March 22, 1989, plus the three-year savings period ending March 22, 1992, then the mineral interest is deemed abandoned.8

was served.11 It was argued in Ohio courts whether the claim to preserve, by itself, was enough to preserve a severed mineral interest or whether, in addition to the claim to preserve, a savings event had to occur in the 20 years prior to notice for the claim to preserve to be effective.

On June 18, 2015, the Supreme Court of Ohio resolved this issue in Dodd v. Croskey.12 The Supreme Court held that a severed mineral interest holder’s filing of a claim to preserve, filed within 60 days after notice was given under the 2006 Amendment, was enough to preserve that interest.13 The ruling was unanimous, affirmed the judgment of the appellate court, and also followed other lower Ohio court rulings on this issue. Interestingly though, the Court of Common Pleas never analyzed whether there could be abandonment under the 1989 Statute, therefore, that issue was not addressed by the appellate court, or Supreme Court of Ohio, on appeal.

“...in a unique twist that illustrates a key issue currently facing the Supreme Court of Ohio, it may turn out that Croskey, et al., preserved interests that no longer existed.”

Under the 2006 Amendment, effective June 30, 2006, the oil and gas estate can only be deemed abandoned if a 20-year period without a savings event occurs and subsequent notice requirements are met.9 The notice requirements include notification by certified mail, or newspaper publication, that the surface estate holder intends to have the severed oil and gas estate deemed abandoned.10 The severed mineral estate holder then has 60 days to respond by filing either a claim to preserve the mineral interest, or an affidavit that describes a “savings event” within the 20 years immediately preceding the date on which notice

The issue of whether to apply the 2006 Amendment, or the 1989 Statute, in cases where the severance occurred

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prior to March 22, 1969 (such as in Dodd) has been the subject of litigation and is now before the Supreme Courtt of Ohio in Walker v. Shondrick-Nau (Noon) (oral argument held on June 23, 2015).14 In Walker, the mineral estate was severed in 1965 by John R. Noon (currently held by Patricia Shondrick-Nau as Executrix of the Estate of John R. Noon and Successor Trustee of the John R. Noon Trust).15 Subsequent surface conveyances in 1970 and 1977 referenced the prior reservation.16 In 2011, John Walker Jr., the surface estate holder, followed the 2006 amendment notice requirements, but John R. Noon responded within 60 days by filing a claim to preserve.17 In 2012, John Walker filed a complaint for declaratory judgment seeking to quiet title to the mineral estate claiming that the mineral rights merged with the surface estate under the 1989 Statute as of March 22, 1992.18 The trial court,19 and Seventh District Court of Appeals, 20 both held that John R. Noon’s severed mineral interest was abandoned, and vested in the surface estate holder as of March 22, 1992. The 7th District Court of Appeals stated that mere mention of a mineral interest reservation in a deed conveying other interests (as was done in the 1970 and 1977 surface conveyances) did not make the mineral interest the “subject of ” the title transaction and therefore the deed did not qualify as a savings event.21 It also held that the 2006 amendment is not retroactive and that the 1989 Statute is automatic and self-executing.22 As a result, if no savings events occurred during the 20-year period of the 1989 Statute, then the oil, gas and minerals automatically reverted to the surface owner and

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the 2006 Amendment cannot be applied. The Supreme Court of Ohio is considering the following questions upon review of the case: •

Can the 2006 amendment be applied retroactively to severed mineral interests created prior to its effective date? Is the 2006 amendment the only DMA version that can be applied after its effective date of June 30, 2006?

•

When does the 20-year look back period under the 1989 Statute begin? Does it begin on the date a complaint is filed, which first raises a claim under the 1989 Statute?

•

Is action required under the 1989 Statute for mineral interests to be “deemed abandoned” or is it “automatic and self-executing?”

•

Does the “subject of any title transaction” include a transaction that “specifically identifies the recorded document creating that interest by volume and page number, regardless of whether the severed mineral interest is actually transferred or reserved?”

Walker is a pivotal case as the Supreme Court of Ohio has decided to hold a number of appeals (Swartz v.

Householder,23 Taylor v. Crosby,24 Tribett v. Shephard,25 Wendt v.

Dickerson,26 Albanese v. Batman, 27 Dahlgren v. Brown Farm Properties, LLC 28) pending its decision in Walker.

Additionally, the decision in Walker may have an effect on the Dodd case.

According to the pleadings in Dodd, “Between 1947 and 2010, there was nothing recorded concerning the [prior] mineral reservation . . . other

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than the restatement of the reservation in successive deeds concerning the surface property.”29 If the Supreme Court of Ohio rules in Walker that the 2006 Amendment is not retroactive, that the 1989 Statute is automatic and self-executing and that mere mention of a mineral interest reservation in a deed does not qualify as a savings event, then the severed oil and gas estate preserved by Croskey, et al., under the 2006 Amendment would have automatically been deemed abandoned as of March 22, 1992, and vested in the surface estate holder. If that happens, Croskey, et al., would have preserved an interest under the 2006 Amendment that no longer existed because of the 1989 Statute. The interests of Croskey, et al., are akin to the walking dead; the parties think they are alive, but they may already be dead.

Author bio

Alexander McElroy is a Senior Associate at Lenington and Parrino, LLP, and he primarily serves clients in the oil and gas industry. His practice includes title examination, issuing of title opinions, curative matters, transactional matters, leasing, due diligence, right-of-way acquisition, and surface operationrelated matters. He can be reached at alexanderm@leningtonparrino.com.

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Endnotes

Id. at ¶5–6.

18 Ohio Rev. Code Ann. Id. at ¶7.

19 §5301.56 (2014).

Walker v. Noon, Case No. 2122 1988 Ohio Laws File 314.

0098 (C. P. Noble County 2013).

3 20 2006 Ohio Laws File Walker v. Shondrick-Nau 201484 (Sub. H.B. 288).

Ohio-1499 appeal allowed, 20144 2013 Ohio Laws File Ohio-3785, 140 Ohio St. 3d.

21 41 (Sub. H.B. 72).

Id. at ¶ 27.

5 22 Dodd v. Croskey, 2015-Ohio-2362, Id. at ¶¶37–41. One of the 143 Ohio St. 3d 293, 37 N.E.3d 147.

Dormant Mineral Act’s enumerated 6 Id. at ¶37. savings events is defined at O.R.C. 7 1988 Ohio Laws File §5301.56(B)(I)(c)(i) as, “The mineral 314 (B)(I)(a)–(d). interest has been the subject of a title 8 Id. transaction … recorded in the office 9 2006 Ohio Laws File of the county recorder of the county 84 (Sub. H.B. 288). in which the lands are located.” The 10 Id. at (E)–(F).

Walker Court defined “subject of ” by 11 Id. at (H). stating that “in order for the mineral 12 Dodd v. Croskey, 2015-Ohio-2362, interest to be the ‘subject of ’ of the 143 Ohio St. 3d 293, 37 N.E.3d 14. title transaction, the grantor must be 13 Id. at ¶37. conveying or retaining that interest.”

14 23 Walker v. Shondrick-Nau, 2014-OhioSwartz v. Householder, 2014-Ohio1499, appeal allowed, 2014-Ohio-3785, 2359, 12 N.E.3d 1243, 1244, appeal 140 Ohio 3d St. 1414, 15 N.E.3d 883. allowed, 2014-Ohio-5098, 140 Ohio 15 Id. at ¶2.

3d St. 1506, 19 N.E.3d 923 and 16 Id. at ¶3. JIC-336_OhioLawyer_ 7.5” w x 4.754_P1a_Print.pdf appeal allowed sub nom.

Shannon v.

1 6/12/14 10:46 AM

Householder, 2014-Ohio-5098, 140 Ohio 3d St. 1506, 19 N.E.3d 923.

24 Taylor v. Crosby, 2014-Ohio-4433, appeal allowed, 2015-Ohio-1353, 142 Ohio St. 3d 1421, 28 N.E.3d 121.

25 Tribett v. Shepherd, 2014-Ohio4320, 20 N.E.3d 365, 367-68 appeal allowed, 2015-Ohio-1591, 142 Ohio 3d St. 1447, 29 N.E.3d 1003.

26 Wendt v. Dickerson, 2014-Ohio-4615, appeal allowed, 2015-Ohio-1896, 142 Ohio 3d St. 1464, 30 N.E.3d 973.

27 Albanese v. Batman, 2014-Ohio-5517, appeal allowed, 2015-Ohio-2747, 143 Ohio 3d St. 1403, 34 N.E.3d 131.

28 Dahlgren v. Brown Farm Properties, L.L.C., 2014-Ohio4001, 19 N.E.3d 926, 927, appeal allowed, 2015-Ohio-842, 141 Ohio 3d St. 1487, 26 N.E.3d 823.

29 Merit Brief of the Appellants at 2 Dodd v. Croskey, Slip Opinion No. 2015-Ohio-2362 (June 18, 2015) (No. 2013-1730).

17

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Our relationships with them span generations.

At Johnson Investment Counsel, we put the goals of our clients ahead of our own. Since our founding in 1965, we’ve held ourselves to the highest fiduciary standards. Our experienced, fee-based advisors provide clients with sophisticated strategies that help ensure and protect their future.

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November/December 2015

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TITLE

Fight Ohio’s heroin epidemic with the most effective treatment Jane P. Novick, Esq., and David M. Novick, M.D. While many drug courts rule out medication-assisted treatment for addicts, it may be the most successful treatment available, despite its stigma in the legal system.

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November/December 2015

www.ohiobar.org

The May/June issue of Ohio Lawyer featured an article by Amy O’Grady on Ohio’s heroin epidemic and the laudable efforts of the Ohio Attorney General’s Office in fighting the epidemic in areas of education, drug courts, resources and legislation; however, the article makes only passing reference to the most effective treatment for heroin addiction today: medication-assisted treatment (MAT). The article correctly notes that “there is not broad agreement in the judicial system that MAT is an acceptable form of treatment.”

In this article, we explain what MAT is, the overwhelming scientific evidence showing its effectiveness, and why members of the legal system should embrace this vital, lifesaving treatment. We also discuss the limitations of abstinence-based treatment for heroin or prescription opioid dependence and the problem of stigma toward addiction treatment.

The rationale for MAT

MAT is based on the principle that opioid addiction is a brain disease.

Opioid addiction alters many brain regions, including those involved with reward circuitry (mediated by dopamine), stress responsivity, hormonal responses, and decisionmaking.1 A single dose of heroin can have long-lasting effects on brain function. How much more will the biochemistry of the brain be altered by repeated use of a potent narcotic when taken erratically as heroin users do, at different times, intervals, amounts, and potency, depending on what the user can obtain on the street? It is generally accepted that permanent changes in brain function will have occurred after one year of

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such use, but the true time to addiction and dependency is probably less.

Diagnostic criteria for addiction

How do we know that someone is addicted to a drug such as heroin?

Two key features are tolerance and physical dependence. Tolerance is the need for more and more drug to get the same effect. Physical dependence is a series of predictable symptoms (withdrawal symptoms) that occur

Patients, not clients

The reader will note that we refer to people with heroin addiction as patients. Almost all addiction professionals agree that addiction is a disease—a disease that the patient and the medical profession are obligated to treat. Sadly, too few patients receive the best available treatment due to misconceptions about MAT on the part of patients themselves, the medical and legal professions, and society as a whole.

Many patients addicted to heroin reach such a high tolerance that they no longer achieve the “high” and take the drug solely to prevent withdrawal. when an addictive drug is stopped.

The cure for withdrawal symptoms is to take the drug again, often in greater amounts because of tolerance, and a self-perpetuating cycle ensues.

Many patients addicted to heroin reach such a high tolerance that they no longer achieve the “high” and take the drug solely to prevent withdrawal.

Additional features of addiction include ongoing craving or inability to stop, use of more drug than intended, spending more time in drug-related activities, disruption of social, vocational or recreational activities, and continued use despite consequences. MAT should be offered to heroin users who have used for one year or longer and who meet most or all of these criteria.

The principles discussed herein apply similarly to addiction to prescription opioids (e.g. Vicodin and Percoset).

What is MAT?

MAT is treatment of heroin or other opioid dependence with counseling and either long-acting opioid medications that stabilize and normalize the patient, or long-acting opioid blockers. Two medications are approved for opioid maintenance: buprenorphine and methadone. These two medications are referred to as agonists because they activate naturally occurring opioid receptors in the brain. They produce a stable low level of opioid in the blood and at tissue receptors, resulting in elimination of withdrawal symptoms and craving.

With proper dosing, patients taking these medications experience no euphoria or “high” because of their pre-existing tolerance to opioids. It is noteworthy that tolerance to these maintenance medicines does

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not occur, allowing treatment with the same dose for months or years. Buprenorphine is almost always prescribed with naloxone, an opioid blocker, as Suboxone film, Zubsolv tablets or generic buprenorphine-naloxone tablets. The naloxone reduces the likelihood that buprenorphine will be injected.

Another form of MAT is the opioid antagonist naltrexone. This nonopioid drug blocks opioid receptors and prevents the rewarding effects of opioids. Naltrexone, discussed below,

another.” This false statement ignores the huge difference in pharmacology between the long-acting maintenance medications and short-acting opioid, heroin (see the table below). Although buprenorphine and methadone are opioids that will cause withdrawal if abruptly discontinued, they function in this context as normalizers for those already dependent on opioids.

Buprenorphine and methadone are both safe and effective. Compared with methadone, buprenorphine has a reduced risk of overdose due to its

Comparison of Heroin, Buprenorphine and Methadone in daily users Heroin Route of Administration Injection or nasal Onset of Action Immediate Duration of Action 3-6 hours Euphoria First 1-2 hours Withdrawal Symptoms 3-4 hours

Buprenorphine*

Methadone

Sublingual (under tongue)

Oral

4-8 minutes

30 minutes

24-36 hours

24-36 hours

None

None

24-48 hours

24-36 hours

*Usually prescribed in combination with naloxone as Suboxone, Zubsolv or generic.

exists as either tablets taken daily or a long-acting injection, Vivitrol.

The duration of MAT is based on the individual needs of the patient.

Addiction is a chronic, relapsing disease, and opioid maintenance medications can be safely continued for many years, similar to the treatment of diabetes with insulin.2 Stopping MAT too early in recovery is associated with very high relapse rates and higher mortality.3 Counseling is an integral part of MAT. The medication helps the patient address the many social, financial, vocational and legal problems that accompany addiction.

Substituting one drug for another?

The most common complaint against MAT, and especially opioid maintenance treatment, is that “it’s just substituting one drug for

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less potent effect. Under the Drug Addiction Treatment Act of 2000 (21 U.S.C. §823(g)(2)), licensed physicians can prescribe buprenorphine in their offices after participating in an eighthour course and subject to some limitations as well as applicable state regulations. Therefore, buprenorphine is more widely available than methadone, which is more highly regulated and can only be prescribed for treatment of addiction in licensed clinics.

Let’s look at a few studies of opioid maintenance. In evaluating studies of addiction treatment, retention in treatment is a powerful index of efficacy. In Sweden, 40 users of heroin for more than one year who met the above criteria for opioid dependence were randomly divided into two groups: 20 were treated with buprenorphine and 20 with placebo, and all followed for one year.4 A psychosocial program “far beyond that which is normally available” was provided to all. In

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the buprenorphine group, 15 (75 percent) remained in treatment and had rare use of illicit drugs and no deaths. In the placebo group, 19 (95 percent) dropped out within 50 days with the last one shortly thereafter, and four died. These differences were highly statistically significant.

In another study, 179 opioid-dependent patients were randomly allocated to methadone maintenance, or a 120-day methadone stabilization followed by a gradual dose reduction reaching zero at day 180, combined with an enriched psychosocial program consisting of group and individual therapy and educational sessions.5 The median treatment retention was much greater for the methadone maintenance group, 438.5 days, versus 174 days for the dose-reduction group. This means that more than half of the group that had their methadone dose tapered dropped out before achieving even one day with no opioid.

These are just a few of the myriad studies showing that opioid maintenance reduces heroin use, reduces criminality, promotes pro-social behavior and prevents infection from hepatitis C and HIV. MAT has been endorsed by the National Institute on Drug Abuse, the Institute of Medicine and the World Health Organization.

Despite these proven benefits, there is a tremendous stigma attached to MAT in the United States today.

Olsen and Sharfstein point out the widespread perception that opioid dependence is a moral weakness or a lack of willpower rather than a chronic medical illness.6 They also draw attention to pejorative terms such as a “dirty urine” rather than a “positive urine”; “drug-free” to denote sobriety, implying that MAT patients are not in recovery; and “detoxification” describing the dose-reduction of MAT, suggesting that MAT drugs are toxic to the body, which, when used appropriately, they are not.

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MAT stigma in the legal system

There are deleterious effects of the stigma against MAT in the legal system. Despite the fact that medical professionals believe that MAT is the most effective treatment for opioid addiction,7 the criminal justice system often fails to defer to medical judgment in the treatment of opioid use disorders.8 For example, it is not unusual for offenders to undergo forced withdrawal from opioids when incarcerated, regardless of whether the opioids are illicit or medically prescribed.

Forced withdrawal, with or without the support of medication to moderate the withdrawal syndrome, is contrary to best practices as defined by medical evidence and the consensus of addiction experts. According to the Legal Action Center in New York City, such forced withdrawal may represent an infringement of one’s rights as set forth in the Americans with Disabilities Act and the Constitutional right to be free of cruel and unusual punishment.9 Very few jails and prisons allow MAT, despite studies that have demonstrated that individuals who participated in prison-based MAT followed by a community-based MAT program post-incarceration were seven times more likely to be free of illicit drugs and three times less likely to be arrested for criminal behavior than those not receiving such treatment.10 Upon

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release, offenders who were not offered MAT during incarceration have a high rate of relapse. As their level of tolerance has dropped, since during incarceration the body adjusted to not having opioids, a relapse may lead to a potentially fatal overdose.

The National Drug Court Institute, the National Association of Drug Court Professionals, and the National Association of State Alcohol and Drug Abuse Directors recommend inclusion of MAT as part of the opioid abuse treatment in drug courts.11 Many courts have opposed the use of MAT due to negative attitudes toward, and incorrect information about, buprenorphine and methadone. In one survey of drug courts, only 5 percent agreed that MAT was more effective than non-pharmacological treatments for opioid addiction.12 Although medical and scientific research has established the need for MAT for prolonged or sometimes lifetime duration to prevent relapse, some in the criminal justice system mistakenly believe that it is better to taper people off MAT as quickly as possible.13

The insufficiency of abstinence-based treatment

Abstinence-based treatment for opioid dependence may be provided in a residential facility or in the local community. Group therapy, individual counseling, educational sessions and structured self-help meetings are the usual components. They are modeled on

the 12-step approach that was devised as an approach to alcoholism, a different disease. Abstinence-based treatment may include faith-based approaches, confrontational group-therapy and selfdiscipline training. Most proponents of abstinence-based treatment of opioid dependence reject MAT as a crutch, a cop-out or an immoral treatment.14 Such rejection is based on their comfort levels or personal philosophies rather than scientific evidence.

Administrators of abstinence-based programs generally do not track their patients after they leave the residential facility or outpatient program.

The control groups in the opioid maintenance studies cited above show dismal results of abstinence-based treatment, even when enriched for research purposes. Medical researchers and some abstinence-based program administrators acknowledge that at best, 10-15 percent of individuals treated in these programs will achieve long-term abstinence.15 Similar to the post-incarceration experience, heroin overdose deaths may occur after discharge from abstinencebased programs due to loss of tolerance.

The Huffington Post article cited in this section is replete with examples and is highly recommended to the interested reader.16 Such overdose deaths can be prevented by making MAT available, as a few abstinencebased programs are now doing.

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Diversion

MAT is sometimes rejected because of concerns about diversion, i.e. the removal of medication from any point in the flow from manufacturing, transporting, prescribing and dispensing process and making it available for sale on the street.

Diversion is a crime and cannot be tolerated. Yet, buprenorphine and methadone are not gateway drugs and are rarely sought to get high.

They often are used by people already dependent on opioids to prevent withdrawal, as a substitute when opioids are in short supply, or as selftreatment by those who cannot find or cannot afford a treatment program.17 The availability of buprenorphine or methadone on the street is a reflection of society’s failure to provide adequate treatment of opioid addiction to all who are in need. Courts and correctional facilities can successfully address diversion using urine testing, medication counts, behavioral observations and good communication with treatment programs.

approaches should be permitted by the criminal justice system. In 2015, the most effective treatment is maintenance with buprenorphine or methadone. It is important to recognize that opioid maintenance treatment is sobriety.

Almost certainly, Vivitrol will have a role, but neither Vivitrol nor any other medication should be the only MAT option, thereby substituting a one-size-fits-all treatment for another.

In a July 7, 2015, report, the Centers for Disease Control and Prevention recommend that states “improve access and insurance coverage for medicationassisted treatment for opioid use disorders.”18 Keeping the individual needs of each patient as the foremost priority will save lives that are being lost daily in this heroin epidemic.

Author bios

Vivitrol: The new kid on the block

Vivitrol is a long-acting form of the opioid antagonist naltrexone. Given as a monthly injection, it blocks the euphoric effects of heroin or other opioids. It is not addictive, produces no euphoria and is not diverted; however, there are few quality studies on Vivitrol and no direct comparisons to buprenorphine or methadone, both of which are supported by decades of research. Studies of naltrexone tablets showed poor adherence and an increased overdose risk. Adherence should be better with Vivitrol. It has proponents in the legal system who oppose opioid maintenance for the reasons cited above. More research is needed to determine the role of Vivitrol within MAT, and allowing it as the only MAT is inappropriate at this time.

Opioid maintenance is sobriety

Heroin addiction is a medical condition that should be treated by doctors using the best evidence. All MAT

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Jane P. Novick, Esq., of Jane Novick Law, LLC, is a solo practitioner in Dayton. She is especially interested in special education law, juvenile law, elder law and estate planning.

David M. Novick, M.D., is a gastroenterologist with Digestive Specialists, Inc., in Kettering. He provides opioid addiction treatment in accordance with the Drug Addiction Treatment Act of 2000. Dr. Novick has more than 65 medical publications.

Endnotes

Cherkis J. “Dying to be free: There’s a treatment for heroin addiction that actually works. Why aren’t we using it?” Huffington Post, Jan. 28, 2015. http://projects. huffingtonpost.com/dying-to-be-freeheroin-treatment. Accessed June 25, 2015.

2 Novick D.M., et al. “The medical status of methadone maintenance patients in treatment for 11-18 years.” Drug and Alcohol Dependence 1993; 33: 235-45.

3 Magura S., Rosenblum A. “Leaving 1

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methadone treatment: lessons learned, lessons forgotten, lessons ignored.” Mount Sinai Journal of Medicine 2001; 68: 62-74.

4 Kakko J., et al. “1-year retention and social function after buprenorphine-assisted relapse prevention for heroin dependence in Sweden: a randomized, placebocontrolled trial.” Lancet 2003; 361: 662-8.

5 Sees K.L., et al. “Methadone maintenance vs 180-day psychosocially enriched detoxification for treatment of opioid dependence: a randomized controlled trial.” JAMA 2000; 283:1303-10.

6 Olsen Y., Sharfstein J.M. “Confronting the stigma of opioid use disorder-and its treatment.” JAMA 2014; 311:1393-4 7 Fox A.D., et al. “Release from incarceration, relapse to opioid use and the potential for buprenorphine maintenance: a qualitative study of the perceptions of former inmates with opioid use disorder.” Addiction Science & Clinical Practice 2015; 10: 2.

8 Pillersdorf N. “Courts must listen to medical community on fighting addiction.” www.Kentucky.com, April 13, 2015. www. kentucky.com/2015/04/13/3799756_ ned-pillersdorf-courts-must-listen. html?rh=1. Accessed June 25, 2015.

9 Legal Action Center. “Legality of denying access to medication-assisted treatment in the criminal justice system.” 2011. www. lac.org/doc_library/lac/publications/ MAT_Report_FINAL_12-1-2011. pdf. Accessed June 24, 2015.

10 Chandler R.K., et al. “Treating drug abuse and addiction in the criminal justice system: improving health and safety.” JAMA 2009; 301: 183-190.

11 Matusow H., et al. “Medication assisted treatment in US drug courts: Results from a nationwide survey of availability, barriers and attitudes.” Journal of Substance Abuse Treatment 2013; 44:473-480.

12 Id. 13 Id. 14 Cherkis, supra.

15 Id. 16 Id. 17 Cicero T.J., et al., “Factors contributing to the rise in buprenorphine misuse: 2008-2013.” Drug and Alcohol Dependence 2014; 142: 98-104.

18 Jones, C.M., et al. “Vital signs: demographic and substance use trends among heroin users – United States, 2002-2013.” Morbidity and Mortality Weekly Report 2015; 64: 1-7.

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Did You Know?

It’s time for your health law checkup

By Ann Marie Tracey Sooner or later we all have contact with the health industry. As individuals, we cannot avoid it; as lawyers, we advise clients who interact with it personally or through their businesses.

Consequently, a basic understanding of federal laws related to the health care industry is important to identifying issues and potential concerns. Here is a quick review of key areas to complete your “health law checkup.”

The Patient Protection and Affordable Care Act (ACA)

Certainly the most important health industry law of the 21st Century is the Affordable Care Act.1 The ACA expands access to insurance, establishes consumer protections, promotes preventative and wellness care and provides measures to reduce fraud.

In the workplace it imposes “shared responsibility” on both employers and individuals for health insurance.

Insurance companies

With respect to health insurance, the ACA prohibits insurance companies from discriminating against individuals because of their health status, such as a pre-existing health conditions.

It also bans discrimination based on gender and eliminates annual or lifetime caps on payable benefits.

Employers

The ACA requires an employer of at least 50 full-time employees to pay an assessment for each employee if the employer does not offer employees health coverage. The coverage must include an array of care ranging from emergency room visits to wellness services. The ACA also provides certain benefits for small businesses. They can receive tax credits for contributing at least a uniform 50 percent toward employee health insurance. It also

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allows the vast majority of uninsured small business owners to be eligible for their own health care coverage.

Individuals

The ACA requires that non-exempt individuals purchase health insurance (the “individual mandate”) or face a penalty. Exemptions include inability to afford the insurance or religious reasons. The U.S. Supreme Court upheld the requirement in National Federation of Independent Business v.

Sebelius.2 (Also in this case, the Court struck down the penalty imposed on states that did not expand Medicaid; Ohio did expand Medicaid.) Both married and unmarried dependent children can retain coverage under their parents’ health insurance policies until they reach age 26.

The ACA provided a new option for purchasing insurance: state or federally sponsored health insurance marketplaces called “exchanges.” A linchpin of the ACA scheme was that individuals who qualified could receive tax credits for purchasing health insurance. Opponents of the legislation argued that under the ACA language, tax credits were only available where, like Ohio, states did not sponsor their own exchanges, but selected to participate in the federal exchange. In King v.

Burwell, the U.S. Supreme Court held that the law’s tax credits applied regardless of whether the individual was enrolled in a state or federally sponsored health care exchange.3

The Health Insurance Portability and Accountability Act (HIPAA)

We all know HIPAA as responsible for those redundant waivers we sign (without reading) when we go to

the doctor’s office.4 HIPAA provides patients with certain privacy rights regarding health information; however, especially if you counsel businesses handling protected health information (PHI), it is important to know that HIPAA’s scope extends beyond health care providers to health plans insurance companies as well as companies offer. It also covers health care clearinghouses.

When “business associates” provide health care services on behalf of a covered entity, such as billing or managing electronic records, there must be a written contract. The contract must describe specifically the scope of the work and require compliance with rules surrounding privacy and security of PHI.5 Additionally, if there is a data breach of protected health information, the Health Information Technology for Economic and Clinical Health Act (HITECH) imposes disclosure requirements.6 HIPAA violations carry both civil and criminal penalties, including up to 10 years in prison.

The Stark Law

Physician practices or businesses that provide services like labs and imaging must be especially attentive to the Stark Law.7 This legislation addresses physician referrals to entities in which the physician has a financial stake. It prohibits both the referral and a payment claim when Medicare is footing the bill. Violations carry penalties of $10,000-$100,000 as well as denying payment, refunding payments and being ousted from participating in federal programs.

The Anti-Kickback Statute

The Anti-Kickback Statute (AKS) is responsible for the demise of lavish industry-sponsored conferences,

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Beyond the Courtroom You do not walk alone: Lawyers living with depression

I have suffered debilitating bouts of depression since I was about 15 years old. During these bouts, death stalked me daily. I was constantly tortured by a loud voice inside my head that pushed and taunted me to end my life.

Though paralyzing, for many years my bouts of depression did not last long enough to completely overwhelm and pull me under; however, in 2006 my marriage ended and I was on the road to divorce. That life-changing event caused the pain, poor self-esteem, betrayal, rejection and worthlessness that I repeatedly swallowed and held inside for 14 years to burst forth like a volcanic eruption. This volcanic eruption also revealed a depression so deep and powerful that I needed medication to treat it. At the outset I admit that I hate taking any type of medication. In my case, finding the right medication to treat my depression was a process made all the more complicated because I was uninsured.

destructive cycle of taking depression medication as prescribed for four or five months only to abruptly stop because I felt better. I did not want to rely on pills to manage my depression. This practice proved disastrous. Abruptly stopping depression medication can be life-threatening. Once the medications were out of my system, I would mentally and physically unravel and break down. Trust me: mentally unraveling is scary. After multiple instances of unraveling and being patched up, my then treating physician asked me how many more times I intended to repeat this mentally destructive cycle. She told me that I needed to accept the fact that, at least for the time being, I had to take medication to treat my depression. By then I had grown tired of mentally unraveling and all of the drama that comes with it. So after months of resisting, I began taking my medication as prescribed and have not looked back.

You may ask how I continued practicing law while in the throes of such a deeply rooted depression. The short answer is I didn’t. Eventually, I hit a wall and stopped functioning in any meaningful way. At the time, I was a sole practitioner representing children who were abused, neglected and dependent. I took my job as an attorney guardian ad litem very, very seriously. Although it was financially difficult, I withdrew from all of my cases so that I could focus on finding the appropriate medication to treat my depression. I would rather suffer than fall short of my obligation to zealously represent children who were already in such difficult circumstances.

There are members of the bar who suffer from mental illnesses.

Unfortunately, fear, shame and stigma prevent these courageous men and women from stepping out of the shadows to obtain the treatment they desperately need. They are why I continue telling my story about living with depression. I want them to know that they do not walk alone.

My decision to come out of hiding has been both scary and empowering.

I have chosen to openly embrace my depression without apology or shame; however, I cannot do all of the heavy lifting alone. It is imperative that the bar fosters an environment that allows authentic discussion about acceptance of attorneys with mental illnesses in our community.

It took about 18 months to find a combination of medications that worked. At that point my ego took over. I then began what became a

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A loud collective silence will not save anyone. It will only cause attorneys

November/December 2015

By Stephanie Mitchell Hughes to hold their mental illnesses inside.

Holding a mental illness inside requires so much physical and emotional energy.

That hidden mental illness reveals itself as drug abuse, gambling, alcoholism and other negative behaviors that adversely affect the clients we serve.

As a person living with depression, every day is a battle. I cannot fight my battle effectively while carrying secrecy, shame and stigma. I must fight to be honest and transparent with myself about the state of my depression. I battle my disdain for taking any type of medication by taking it as prescribed. I fight the urge to consume and participate in that which is not good for me. Instead, I choose that which feeds my body, mind and soul. I fight against an ego that hates to rely on anything or anyone.

This daily fight requires energy and focus so that I can fully embrace and cherish my whole self. My new mantra: #noapology, #nosurrender, #noretreat.

As always, be empowered, encouraged and enlightened.

Author bio

Stephanie Mitchell Hughes is an attorney, writer, and speaker. She was born into a family of educators and grew up listening to stories about children who were poor, often came to school hungry, and lived in very difficult circumstances. The stories Stephanie heard were rooted in child abuse, domestic violence, and mental illness. These stories shaped and informed Stephanie’s work as an attorney and advocate.

www.ohiobar.org

Stephanie told her story about overcoming adversity and living with depression at TedxColumbus and This Is My Brave. Her blogs appear in The Huffington Post, MariaShriver.com, The Shriver Report, Medium.com and other online publications. Stephanie also serves as an Ambassador for Ascend at The Aspen Institute.

Follow Stephanie on Twitter @srmhughes, Facebook, and Instagram.

Visit her website at stephaniemitchellhughes.com

Retired Judge James L. Kimbler Announces the creation of Northcoast ADR Services, offering the following alternative dispute resolution services:

Private Judging Mediation Arbitration

Learn more at: www.northcoastadrservices.com or call 330-322-6737 or email jameskimbler@northcoastadrservices.com

Health law checkup, continued from page 21 along with many incentives that may otherwise be considered business as usual.8 Like the Stark Law, the AKS seeks to maintain the integrity of the health industry. It sets strict constraints on providing or receiving something of value in connection to referring an individual for services or procuring goods or services when a federal health care program is paying all or even part of the bill. Unlike the Stark Law, the AKS can present challenges to businesses far beyond those in which a physician has interest.

Pharmaceutical companies and medical practice industries have to be particularly meticulous about AKS compliance. Violations of AKS carry substantial civil fines and criminal penalties under both it and the False Claims Act. It is not necessary that the individual have actual knowledge of or intent to violate the law.

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While some statutes related to the health industry can be very technical, the good news is that there are excellent resources for learning more about the issues that you or your clients face. Especially helpful is information the Department of Health and Human Services provides, available at www.hhs.gov.

Author bio

Ann Marie Tracey is a professor of business and health law at Xavier University in Cincinnati. She is codirector of the Cintas Institute for Business Ethics at Xavier, and previously served as an assistant U.S. Attorney and Chair of the Ohio Ethics Commission. Now

retired from the General Division of the Hamilton County, Ohio Court of Common Pleas, Ann Marie has served on numerous Ohio Supreme Court and OSBA committees and task forces.

Endnotes

Pub. L. No. 111-148, 124 Stat. 119 (2010).

2 567 U.S. ___, 132 S.Ct. 2566 (2012).

3 576 U.S. ___(2015).

4 Pub. L. No. 104-191, 110 Stat.

1936, codified at 45 C.F.R. Parts 160, 162, and 164.

5 U.S. Department of Health and Human Services, www.hhs.gov/ ocr/privacy/hipaa/understanding/ coveredentities/index.html.

6 Pub. L. No. 111-5, 123 Stat. 226 (2012) (codified at 42 U.S.C. ยง 201 et seq.)

7 42 U.S.C. ยง1395nn.

8 42 U.S.C. ยง1320a-7b.

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Practice Tips How to prepare a client’s civil case for mediation

By Frank A. Ray

To produce the best opportunity for a successful civil case mediation, lawyers for parties to the dispute should prepare for the mediation conference as if proceeding to trial.

beating commentary. Overstatement and hyperbole fail to advance the fundamental purpose of mediation— arrival at an agreed reasonable compromise to terminate a dispute.

Attorneys effectively posture a case for mediation by engaging in the same process that produces persuasive pressure points that influence the decision-making by a court and jury.

The onus for convincing an adversary party of unfavorable exposures in a litigated case falls on the advocating party’s trial lawyer, not the mediator. In preparation for a mediation, no viable alternative exists for counsel’s thorough preparation and understanding of issues that drive the outcome of the case.

A properly crafted mediation position statement for a civil case should address and discuss the following:

Write a clear mediation position statement

Through a party’s attorney’s written mediation position statement, the party’s message should speak not only to the mediator, but also more importantly, to adversary parties and their counsel. In the narrative of the mediation position statement, a lawyer should project transparency about anticipated presentation of the case at trial. If admissible evidence will carry the day for a party at trial, in mediation, counsel’s discussion of decisive evidentiary issues probably best influences and positions a dispute for resolution.

In a mediation position statement, the authoring lawyer should avoid use of effusive adjectives and adverbs to describe projected outcomes in the case. Understated narrative usually trumps a shrill or chest-

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•

Procedural status of the litigation;

•

Descriptions of relevant facts supported by copies of key documents and excerpts of witnesses’ written or recorded statements;

If parties find themselves in a rushed mode for evaluation and decisionmaking by the time a mediation conference convenes, the unsettled feeling of a client’s decision-maker probably translates to a stalemate in negotiations. By serving a mediation position statement on adversary counsel at a reasonable time in advance of the mediation conference, a lawyer’s written advocacy will enjoy the best opportunity to strike a chord in the adversary’s mind of risks for an unfavorable result at trial.

Provide a copy of the statement to the client

•

Indisputable dispositive legal issues;

•

Disputed dispositive legal issues with a discussion of the rationale for probable rulings by the court;

•

Assessment of claimed damages and remedies; and

When a party’s attorney receives a mediation statement from adversary counsel, the receiving lawyer should immediately provide a copy to the client. Even if the adversary’s statement might qualify as “bad news” for the client, transparency in the process also dictates that clients are fully informed of risks as well as benefits associated with trial of the case.

•

Each party’s proposed terms for global resolution of the case.

Conduct a pre-mediation discussion with the client

Exchange statements in a reasonable amount of time

Once the clients approve the content of mediation position statements, counsel should exchange the statements between or among counsel for all parties to the mediation.

Counsel should do so at a time far enough in advance of the mediation conference that adversary parties have adequate opportunity for review, evaluation and response to the content of the statement.

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Counsel’s list of essential tasks for any mediation should include a pre-mediation discussion with the client to address a realistic range of results at trial. Counsel who have only viewed clients’ cases through rose-colored glasses have done their clients and themselves a disservice.

Experienced trial lawyers can attest that a so-called slam dunk verdict rarely manifests. In mediated cases, thoughtful litigators address and assess pitfalls of cases with the same commitment invested in discussion of

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positive aspects of cases. In advance of a mediation, and in advance of a trial, the client needs to hear a rhetorical discussion of “what ifs” from the client’s counsel. Indeed, the client deserves to hear that discussion.

A mediation in which the parties have initially proposed entirely unreasonable terms for resolution probably arises from counsel’s unwillingness to address a potentially unfavorable outcome for the client. A party’s demanded terms for settlement that entail terms that no judge or jury could award will understandably evoke adversary counsel’s distrust of the demanding party’s willingness to negotiate in good faith.

Counsel for parties in litigation have a professional duty to address and, as necessary, attempt to adjust a client’s expectations about foreseeable results in litigation. Former Ohio Common Pleas Judge Donald A. Cox, now serving as a private mediator, describes this process as “client therapy.” While lawyers understandably strive to maintain clients’ confidence in their attorneys’ ability to achieve a desired outcome in litigation, those same lawyers best serve clients with discussion of the range of scenarios for the outcome of a lawsuit.

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Pre-mediation discussions with the client should occur with the client’s decision-maker. If the client is an individual or single fiduciary, the lawyer finds a readily identifiable audience.

If the client is a business or group or association of people, the attorney for such a client or set of clients should identify clearly the decision-maker or decision-makers for the client or set of clients. The lawyer for a business client or multiple parties should insist on unfettered access to the decision-maker for direction in handling a mediation.

Attend the mediation conference

To optimize success in a mediation, the real decision-maker for each party should personally attend the mediation conference. Lead trial counsel for the parties should also personally attend.

In advance of the mediation conference, participating parties’ counsel should encourage clients to avoid describing demands or offers as “take-it-or-leave it,” “bottom-line” or “drop-dead” unless the clients are adamant and unwavering on such terms for resolution of the case. In pre-mediation discussions with parties, counsel should address compromise as a probable prospect for mediations that

produce settlements. If adversaries fail to embrace compromise as a mutual fundamental and ultimate goal for a mediation, little purpose probably exists for convening a mediation conference.

No doubt, some civil cases should proceed to trial for disposition, but most cases are better disposed by purposeful mediation.

Author bio

For over four decades, Frank Ray practiced as a trial lawyer who conducted numerous jury trials for his clients. For the past two years, Mr. Ray has withdrawn from the courtroom and has entirely refocused his law practice as a mediator and arbitrator for a broad spectrum of civil disputes. He is a solo practitioner at Frank A. Ray Co., LPA, in Columbus.

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Inside OSBA SAVE THE DATE

Formerly known as the OSBA Convention, the All-Ohio Legal Forum and this year’s annual meeting will be held April 27-29 in Cincinnati. A formal invitation with more information will arrive soon. We hope you will join us!

Featured member discounts

​​​ Your Ohio State Bar Association membership connects you to services and programs that advance you toward your personal and professional goals, while saving you time and money. Our network of vendors helps you focus more time on the practice of law by streamlining the business of law. Get the most out of your membership and your practice with these preferred vendors:

Clio

Clio is a cloud-based legal practice management platform that keeps your all-important matters, contacts and documents available anywhere. If you already use other popular cloud services like Dropbox or Google

Apps, Clio will make you smile by tying them together in a single, easy-to-use system. OSBA members receive a 10 percent lifetime discount when they sign up for a free trial.

Staples Business Advantage

Staples Advantage is the contract and commercial division of Staples. Staples has created a discounted custom office supply program for OSBA members where you can get everything you need from one convenient location. Order everything from StaplesAdvantage. com and Staples will deliver it free on orders more than $50.

To learn more and take advantage of your member discounts, visit www.ohiobar.org/discounts.

CALL FOR ARTICLES

Ohio Lawyer is seeking submissions of feature articles and “Did You Know,” “In My Opinion,” “Beyond the Courtroom,” “Practice Tips” and other items for publication in upcoming issues. Please see the Ohio Lawyer Editorial Policy, located at www.ohiobar.org/editorialpolicy, before submitting.

Membership renewals Thank you for supporting the Ohio State Bar Association this year! As we near the end of 2015 and another busy bar year, we are very excited for what 2016 will bring.

We hope we can count on your continued support and participation. Your 2016 OSBA dues statement will be mailed in mid-November. Watch for more information in your email inbox or visit www.ohiobar.org/dues.

Nominations for Nettie Cronise Lutes Award The Ohio State Bar Association Women in the Profession Section is accepting nominations for the 20th annual Nettie Cronise Lutes Award.

This honor will be presented to a woman lawyer who has improved the legal profession through her own high level of professionalism and commitment to opening doors for girls and women.

Nettie Cronise Lutes was the first woman admitted to practice law in Ohio, at a time when state law did not authorize women to belong to the bar, and most members of the Supreme Court of Ohio opposed the notion.

Lutes personally took on the challenge of persuading the Court to give women the same opportunity to practice law as men. This award is named after her in recognition of her pioneering efforts.

The OSBA will present the distinguished award on April 27, 2016, at the All-Ohio Legal Forum in Cincinnati.

Lawyers and members of the public are invited to submit nominations, which should include the nominee’s full name and address; present position; professional and/or civic accomplishments; and reasons why the individual meets the standards set by Lutes. Nominations should be made no later than Dec. 12, 2015. To make a nomination, please visit www.ohiobar.org/lutesaward.

Renew prior to Dec. 31 and enjoy uninterrupted delivery of all your OSBA member benefits. Thank you for your continued support of the Ohio State Bar Association.

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November/December 2015

www.ohiobar.org

Foundation News

Join our cause Self-nominations for Fellows Program

Are you a civic-minded lawyer whose professional, public and private career demonstrates outstanding dedication to the welfare of your community, integrity, honor and courtesy in the legal profession? We are pleased to share that self-nominations are now being accepted for the OSBF Fellows Program.

Nominations are due by Dec. 15, and forms can be found at www.osbf.net/who-we-are/fellows.

Contact Beth Gillespie at (614) 487-4474 for additional information.

Join the conversation

Henry Ford once said, “Coming together is a beginning; keeping together is progress; working together is success.”

Ford’s advice can be applied to many endeavors, even making an impact in your profession.

This is why the Ohio State Bar Foundation is building an online community to connect with you and others who share our passion for law-related philanthropy.

By following us on Twitter, Facebook and LinkedIn, you will have the ability to dive into conversations with legal leaders throughout the state. You will also have the opportunity to see how the organizations we support are aiding some of the most legally vulnerable populations, from human trafficking victims to veterans to children. Their work is vital to making the law fair for all.

So join us. Be a part of the conversation and the impact. We’ll accomplish more working together than we ever could apart.

Connect with OSBF www.ohiobar.org

HONOR. REMEMBER. CELEBRATE.

You can give thanks with a tribute gift to the OSBF that supports our statewide grants to law-related non-profits 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

Howard Besser & Barbara Besser Kathryn G. Eloff Ken Cox Thomas P. Webster

Anthony Gretick, 50 Years of Practice Stephen K. Snavely Lynn Jensen James D. Jensen Scott Mote Heather G. Sowald

Stan Purdy, 50 Years of Practice Richard E. Wolfson

Denny Ramey James D. Jensen David R. Rupp, 50 Years of Practice Stephen K. Snavely William K. Weisenberg Howard H. Harcha Martin E. Mohler

IN MEMORY OF

Russell T. Adrine Ronald B. Adrine

Arthur M. Ney Jr. Peter L. Ney

Richard G. LaValley Sr. Reginald S. Jackson

David E. Railsback James P. Miller

Walter Lawson III Yolanda Gwinn R. William Meeks S. Michael Miller

Kathy Weisenberg James D. Jensen Gerry Wells Carmen V. Roberto

Felicia Beth Nekritz Paul Scott Lorenzo

Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation November/December 2015

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Books & Bytes Book review Part of the difficulties that Foner encountered in writing his book are the sparse surviving records from the pre-Civil War era chronicling the fugitive movement. Documents have been lost or deliberately destroyed due to legitimate fears of retribution and prosecution, and the oral history first-hand accounts of the movement have disappeared with the passage of deceased participants.

Gateway to Freedom: The Hidden History of the Underground Railroad, by Eric Foner. 301 pages.New York, NY W.W. Norton & Company, Inc. 2015. Illus. $26.95 It is indeed odd, in a contemporary reading of the U.S. Constitution, to find in Article 1, Section 2, the provision for apportionment of members of the House of Representatives, counting “free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” Eric Foner, in Gateway to Freedom: The Hidden History of the Underground Railroad, delves into a sordid period in American history when blacks were considered only 60 percent human, and untaxed Indians didn’t count at all.

Foner, winner of the 2011 Pulitzer Prize in history, traces the origins of the “underground railroad” to the literal end of line, when slavery was finally abolished nationally with the passage of the Thirteenth Amendment in 1865.

“The ‘underground railroad’ should be understood,” writes Foner, “not as a single entity, but as an umbrella term for local groups that employed numerous methods to assist fugitives, some public and entirely legal, some flagrant violations of the law.”

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the accused colored person was a fugitive slave. “Between 1855 and 1860, legislatures in New England, Ohio, Michigan, and Wisconsin enacted new personal liberty laws that authorized the state to provide counsel for accused fugitives, required that their status be determined by a jury trial, and increased the penalties for kidnapping free blacks.”

Foner’s book sheds light on the countless unnamed conductors, politicians and benefactors who devoted their time, money, homes and skills to aid runaways.

Slavery, the “South’s peculiar institution,” became increasingly politicized with the travels of blacks into northern free lands and the vagaries of the local judicial systems.

“Until the 1830s, northern states generally recognized the right of southern owners to bring slaves into their territory for a specified period of time. But beginning with a court decision in Massachusetts in 1836, state after state . . . adopted the freedom principle that the moment a slave, other than a fugitive, set foot on free soil, he or she became free.” Yet, even in Ohio, an 1847 U.S. Supreme Court case upheld the judgment of a Hamilton County farmer who aided nine fugitives from Kentucky.

Securing legal counsel to represent defendants accused of being escaped slaves was a daunting task. Foner notes the lack of adequate due process measures to ensure that proper witnesses and evidence could be presented to rebut claims that

November/December 2015

Reasons for escape from servitude were varied. One southern physician claimed to have identified drapetomania, “a disease causing Negroes to run away,” as inducing fugitives to flee their homes. Many escaped to avoid abusive and cruel masters, join separated family members, being subjected to a will bequeathing the slave to an heir for another generation of servitude, poor clothing and relentless hard labors.

Even among legitimately free blacks, there was an ever-present threat of kidnapping and being sold into slavery.

Foner relates the spectacular escape of a slave loaded into a box “even too small for a coffin” and transported 250 miles by rail and steamboat to Philadelphia, where the fugitive was unpacked after nearly a day’s journey tucked inside the crate. One witness to the episode noted, “Nothing saved him from suffocating but the free use of water [...] and the constant fanning of himself with his hat[...] He was twice put with his head downwards[...]This nearly killed him.”

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Many of the underground railroad heroes mentioned by Foner are familiar names. Harriet Tubman, an escaped slave, rescued scores of slaves.

Frederick Douglass, also an escaped slave, who Foner compliments as the “era’s greatest orator, editor and writer in the cause of abolition and human rights,” described Tubman in glowing terms: “Excepting John Brown—of sacred memory—I know of no one who has willingly encountered more perils and hardships to serve our enslaved people.” Foner’s book sheds light on the countless unnamed conductors, politicians and benefactors who devoted their time, money, homes and skills to aid runaways.

Ohio is punctuated with numerous sites of the underground railroad.

The National Underground Railroad Freedom Center, located along the Ohio River in Cincinnati, has been open since 2004, and several historical markers recognizing the abolition movement are scattered throughout the state.

—Bradley S. Le Boeuf, Akron

Cleveland

Member News

Judge Ronald Adrine, Cleveland Municipal Court, was awarded the 2015 Croucher Family Award for Outstanding Leadership by the Ohio Domestic Violence Network.

Frances Floriano Goins, Ulmer & Berne LLP, has been appointed Chair of the Director and Officer Liability Committee of the Business Law Section of the American Bar Association (ABA) for a three-year term.

William E. “Bill” Pfau III 64 Youngstown May 11, 2015 Lori J. Collins 58 Asheville, NC May 12, 2015 Ben W. Hale, Jr. 70 Columbus May 28, 2015 Michael F. Colley 78 Columbus June 20, 2015 Howard L. Calhoun Akron July 5, 2015

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Craig A. Marvinney, Walter | Haverfield, was recognized for his achievements in the legal field by the nationally based Federation of Defense and Corporate Counsel (FDCC).

James P. Kennedy 83 Columbus July 13, 2015

Gregory P. Stein, Ulmer & Berne, was elected to the Board of Directors for the Thea Bowman Center.

Robert C. Porter, Jr. 87 Cincinnati Aug. 9, 2015

In Memoriam 2014

Jack C. Kerber 70 Columbus March 3, 2014

Paul E. Balash 64 Cincinnati July 26, 2015

James F. DeLeone 89 Columbus Aug. 16, 2015 Edward F. Zoltanski 89 Perrysburg Aug. 21, 2015

James T. Saker Warren Oct. 11, 2014

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Richard LaValley Sr. 86 Sylvania Sept. 4, 2015

Paul G. Nader Warren Nov. 19, 2014

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Thomas A. Unverferth Ottawa Sept. 10, 2015

2015

John A. “Jack” Elden, Jr. 82 Vermillion Mar. 7, 2015 Hilliard J. Fjord 90 Winters, CA Mar. 31, 2015

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Edward S. Noble.

97 St. Marys Sept. 18, 2015 John A. Wynn 71 Naples, FL Sept. 25, 2015

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, visit ohiobar.org/membernews.

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

www.ohiobar.org

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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.

Statehouse Connection Fall legislative update

By Todd Book Just as the return of the swallows to the Mission in San Juan Capistrano signifies the return of spring, the return of the legislature after summer break signifies the beginning of fall and the beginning of a busy time at the Ohio Statehouse.

As you know, the first six months of the first year of the legislative session is extensively devoted to the state operating budget. After the budget is approved in late June, the legislature normally breaks for the balance of the summer, but with the arrival of September, members of the legislature start revving their engines in anticipation of the coming action.

In many respects, the heavy lifting of the legislature will occur over the next several months. Committees are working at full speed to review and develop the important pieces of legislation that have been introduced.

The OSBA has several bills of our own working through the process. First is S.B. 171 addressing the Uniform Deposition and Discovery Act. The bill is a product of the Family Law Committee and aims to bring Ohio law into conformity with the Uniform Law Commission’s model for discovery acts throughout the United States and foreign jurisdictions. OSBA members Melissa Graham-Hurd and Eric Johnson have been testifying in support of the bill. (www.legislature. ohio.gov/legislation/legislationsummary?id=GA131-SB-171).

Senate Bill 181 is from the Corporation Law Committee. It is not an exaggeration to say 90 percent of Ohio’s corporate code has been written by the OSBA Corporation Law Committee.

We are trying to continue that

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tradition with the passage of S.B. 181.

The bill aims to bring uniformity to the fiduciary duties of corporate and LLC officers in Ohio. Corporation Law Chair Jeff Wahl has been heading the charge on the bill. (www.legislature. ohio.gov/legislation/legislationsummary?id=GA131-SB-181).

A third Senate Bill product of the Real Property Section, it would establish a new standard for when a recorded document that has a minor defect (i.e. missing notary seal) corrects itself through the passage of time.

Most states have a cure statute of four years. In Ohio, the time period for the document to self-correct is 21 years.

The bill aims to bring Ohio more in line with other states by establishing a four-year time period for the recorded document to cure itself. Attorney Mike Sikora is working on this bill.

HB-347). The OSBA Criminal Law Committee recently established a subcommittee to give feedback on this bill that would prohibit civil asset forfeitures unless there is a criminal conviction.

As you can see, there is a lot of activity at the statehouse. Please follow me on Twitter @ToddBook and on the OSBA website to receive timely updates on the Ohio Legislature.

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

In addition to OSBA priority bills, we are also stating positions on several bills that affect the public and the profession.

We are aggressively supporting H.B. 123 (www.legislature. ohio.gov/legislation/ legislationdocuments?id=GA131-HB-123) sponsored by Representatives G. Johnson and R. Cupp. The bill allows the pre-sentence investigative report to be waived if the defense, the prosecutor and the judge all agree, thereby saving time and money in appropriate criminal cases. The bill has passed the House and is moving in the Senate.

We are also working with Representatives McColley and Brinkman on a bill addressing civil asset forfeitures, H.B. 347 (www. legislature.ohio.gov/legislation/ legislation-documents?id=GA131-

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

Understanding QDROs 3.0 CLE credit hours (AM) Registration: 8 a.m.

Program: 8:30 a.m. – 11:45 a.m.

11/2 – Columbus - OSBA Live via simulcast: Cleveland, Fairfield Divorce and Tax 3.0 CLE credit hours (PM) Program: 1 p.m. – 4:15 p.m.

11/2 – Columbus - OSBA Live via simulcast: Cleveland, Fairfield Build Your Law Practice and Retain Clients 6.0 CLE credit hours / 6.0 NLT credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/4 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Perrysburg OVI Update 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/5 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Fairfield Cybersecurity for Attorneys: Understanding Networks, Data Breaches 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/6 – Cleveland - Cleveland Metro Bar Assn.

11/17 – Columbus - OSBA Live via simulcast: Akron, Fairfield, Perrysburg Ohio Elder Law Institute Highlights VIDEO REPLAY 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/9 – Columbus - OSBA

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Four Prerequisites for Success in the Courtroom 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/9 – Cleveland – Cleveland Metro Bar Assn.

11/10 – Columbus - OSBA Sean Carter: Humorist at Law 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/10 – Cleveland – Cleveland Metro Bar Assn.

11/11 – Columbus - OSBA Bankruptcy Fundamentals 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/12 – Columbus Live via simulcast: Cleveland, Fairfield, Perrysburg NLRB 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/11 – Cleveland - Cleveland Metro Bar Assn.

Appellate Practice VIDEO REPLAY 6.0 CLE credit hours / 6.0 NLT credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/16 – Cleveland - Cleveland Metro Bar Assn.

11/23 – Columbus - OSBA 11/23 – Perrysburg – Hilton Garden Inn Residential Real Estate Transactions 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/18 – Columbus - OSBA Live via simulcast: Cleveland, Fairfield, Perrysburg

November/December 2015

All programs highlighted in RED are new for 2015!

Medical Law 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/19 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Fairfield Oil and Gas Update 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/20 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Wooster Young Lawyer Connect 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/20 – Cincinnati - University of Cincinnati College of Law PUCO 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

11/24 – Columbus - OSBA Live via simulcast: Cleveland Adding and Conserving Value for Your Clients 4.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. – 12:45 p.m.

11/30 – Columbus - OSBA Live via simulcast: Cleveland Tax Institute 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

12/1 – Columbus - OSBA Live via simulcast: Cleveland

www.ohiobar.org

ACTL Professional Conduct 2.5 CLE credit hours (AM) Registration: 8 a.m.

Program: 8:30 a.m. – 11:15 a.m.

12/2 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Dayton, Fairfield, Perrysburg Jury Selection 3.0 CLE credit hours (PM) Registration: 12:30 p.m. / Program: 1 p.m. - 4 p.m.

12/2 – Columbus - OSBA Supreme Court Year in Review 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

12/3 – Columbus - OSBA Live via simulcast: Akron, Fairfield, Perrysburg Professionalism, Law Office Management and Client Funds 3.0 CLE credit hours (AM) Registration: 8 a.m.

Program: 8:30 a.m. – 11:45 a.m.

12/4 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Fairfield, Perrysburg Public Records 3.0 CLE credit hours (PM) Registration: 12:30 p.m.

Program: 1 p.m. – 4:15 p.m.

12/4 – Columbus - OSBA Live via simulcast: Cleveland Effective Employment Investigations 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

12/7 – Columbus - OSBA 12/8 – Cleveland – Cleveland Metro Bar Assn.

Real Property Institute 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

12/10 – Columbus - OSBA Live via simulcast: Cleveland OSBA Legal Tech Conference for Solo and Small Firms 12.75 CLE credit hours Registration Day 1: 8 a.m.

Program: 8:30 a.m. – 5 p.m.

Program Day 2: 9 a.m. – 4 p.m.

12/10 & 11 – Lewis Center – Nationwide Hotel and Conference Center Trial Evidence 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

12/11 – Cleveland – Cleveland Metro Bar Assn.

12/16 – Columbus - OSBA Live via simulcast 12/16: Fairfield, Perrysburg Titles to Real Estate in Ohio VIDEO REPLAY 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

12/14 – Akron, Cleveland, Columbus, Perrysburg Discipline Problems: How to Avoid Them 2.75 professional conduct credit hours (AM) Registration: 8 a.m.

Program: 8:30 a.m. - 11:30 a.m.

12/17 – Cleveland – Cleveland Metro Bar Assn.

12/23 – Columbus - OSBA Live via simulcast 12/23: Fairfield, Perrysburg

Effective Legal Negotiation and Settlement 6.5 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. – 4:30 p.m.

12/17 – Columbus - OSBA 12/18 – Cleveland – Cleveland Metro Bar Assn.

Forensic Conference 6.0 CLE credit hours Registration: 8 a.m.

Program: 8:30 a.m. - 4 p.m.

12/21 – Columbus - OSBA Live via simulcast: Cleveland, Fairfield Year End Wrap 2.5 CLE credit hours (AM) Registration: 8 a.m.

Program: 8:30 a.m. – 11:15 a.m.

12/22 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Fairfield, Perrysburg Managing the Media: Lawyers and the Press 2.5 CLE credit hours (PM) Registration: 12:30 p.m.

Program: 1 p.m. – 3:45 p.m.

12/23 – Columbus - OSBA Live via simulcast: Fairfield, Perrysburg Fear Factor 2.75 CLE credit hours (AM) Registration: 8 a.m.

Program: 8:30 a.m. – 11:30 a.m.

12/28 – Columbus - OSBA Live via simulcast: Akron, Cleveland, Fairfield

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

November/December 2015

Ohio Lawyer

33

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