January/February 2016

THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

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Vol. 30 No. 1 Departments 4 | President’s Perspective Unbundling legal services: A win for attorneys, a win for litigants, and a win for the courts 5 | In Brief The right to offend; Minority associate percentages drop; Wasting work time; Mentors trump family members

Features 6|

12 |

Drones and the law: What you need to know

by Robert L. Ellis With the popularity of drones swiftly growing, the FAA confirms drone regulations for businesses and hobbyists.

Daily fantasy sports firestorm

by Kevin P. Braig DFS businesses gamble with legal intricacies that will ultimately decide their futures (or lack thereof).

18 | Beyond the Courtroom Ohio lawyer provides musical solace 20 | Counsel Comments Client files: What should (or must) be given to the client 22 | In My Opinion October 6, 1987: A day that changed the Supreme Court – and America 24 | Practice Tips Tips for lawyers who want to get good results for clients and make money 27 | Foundation News #Giving(Tuesday) for Access to Justice 28 | Inside OSBA All-Ohio Legal Forum save-the-date; Mock trial volunteers needed; Interested in free CLE?; Randall Comer announces candidacy for next OSBA President-Elect 29 | Member News Awards and community involvement of OSBA members 30 | Books & Bytes Go Set a Watchman book review 32 | CLE Calendar January, February and March programs

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

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President’s Perspective Unbundling legal services: A win for attorneys, a win for litigants, and a win for the courts

I admit I had never heard the term “unbundling of legal services” until I served on the Ohio Supreme Court Access to Justice Task Force. Over the past year, I have learned what “unbundling” involves, and how many lawyers and judges are not familiar with the concept. In use, it can be a great financial resource for lawyers while increasing access to legal services for those litigants who choose to represent themselves. At the same time, trial courts avoid having pro se litigants try to handle complex legal issues that often delay proceedings.

What are unbundled legal services?

When a client hires a lawyer, it is normally from the beginning to the end of the case. However, in today’s world, more people are representing themselves. Often it is because folks think they do not need or cannot afford a lawyer. With unbundling, a client hires the lawyer only for tasks that are agreed to in advance. To date, unbundling has been used largely in family courts. For example, a lawyer could write the divorce petition and allow the party to file on his/her own; or one could hire the lawyer to review settlement agreements; or the lawyer could help complete financial documents, including complex matters such as a qualified domestic relations order. But there is absolutely no reason unbundling could not be applied to other types of litigation where litigants are proceeding pro se.

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Is unbundling allowed under Ohio law?

Yes. Rule 1.2(c) of the Ohio Rules of Professional Conduct provides, “A lawyer may limit the scope of a new or existing representation if the limitation is reasonable under the circumstances and communicated to the client, preferably in writing.” However, as a word of caution, neither this rule nor any other rule defines what is “reasonable under the circumstances.”

One of the recommendations from the Task Force Report on Access to Justice is to ask the Board of Professional Conduct to provide comments or guidance that address common questions about when a lawyer may provide limited representation.

Hopefully that will be done soon.

Where is the benefit for lawyers and pro se litigants?

Today more folks are deciding to represent themselves, or are hiring lawyers at discounted rates from AVVO, LegalZoom, RocketLawyer and so on. While talking to lawyers around the state at district meetings, I have found many complaining that they don’t have the work they used to, and they are hurting financially.

Yet virtually every such lawyer I talk to has never heard of unbundling.

When we explain the concept at our meetings, eyes open up and lawyers start talking about how they can benefit financially by offering affordable legal representation of limited areas of the case. And of course the benefit

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to the litigants is obvious—they get the help they need in what may be a complex area of litigation and avoid making what may be a very costly and devastating mistake.

What is the reaction from the courts?

Interestingly, every judge I have talked to is in favor of unbundling once the concept is explained to them. Many judges have told me they weren’t aware of unbundling and have not seen it used in their courts. When we discuss the concept, the judges start talking about how unbundling could really help their dockets. Judges tell me more and more folks are proceeding pro se, and when a complex legal issue arises, many do not know where to go or how to handle the matter, delaying the proceedings and making matters worse for everyone.

If there was legal representation just for that one issue, time, money and effort could all be saved.

Tips for unbundling

1. Make sure you and the client make it clear at the beginning, in writing, what your role as a lawyer will be in the litigation, and what the fee will be.

2. Perhaps most importantly, advise the trial judge at the very beginning of the case that you are only representing the litigant on certain particular matters, and make sure the judge is in agreement. You should also make

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In Brief a record at the first appearance of your limited representation.

3. When you are finished, stop.

Inevitably the client, and perhaps even the judge, will want you to continue in representation.

If you do, you will regret it.

End representation when your task is completed.

The right to offend

Forty percent of Millennials believe that government should restrict people’s ability to offend minorities through speech. Meanwhile, the Silent generation, the Boomer generation and Generation X believe in the freedom of offensive speech by 80 percent, 71 percent and 70 percent, respectively. With the majority ruling, most Americans stated that the government should not have the power to restrict offensive speech while only 35 percent of the other 38 countries polled claimed the same.

-Pew Research Center

SHOULD THE GOVERNMENT RESTRICT OFFENSIVE SPEECH?

Resources for help with unbundling

The Institute for the Advancement of the American Legal System (IAALS) along with the Association of Family and Conciliation Courts (AFCC) has developed a series of guides and tool kits that provide families, lawyers, non-legal professionals and courts with the information and resources they need to ensure that everyone can take advantage of unbundled legal services. These resources are available for download from both IAALS and AFCC. In the near future, OSBA will also have a library of Ohio-specific resources for you. I encourage you to read these materials.

They may well give your practice a new and financially worthwhile boost—and improve access to justice.

The IAALS materials contain a quote from Chief Judge Janice Davidson (Ret.) of the Colorado Court of Appeals: “People who don’t have a lawyer to represent them can often feel adrift in our complex and nuanced legal system. By allowing these court users to get help for a lawyer on certain tasks in their cases, such as writing a document needed for court or making a court appearance, everyone benefits; a family can save time and resources, lawyers can represent a wider array of clients, and courts can concentrate on providing critical services.” Well said, Your Honor.

By John D. Holschuh Jr., President of the Ohio State Bar Association.

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20%

29%

SILENT GENERATION 80%

30%

BABY BOOMERS 71%

Minority associate percentages drop

In 2015, law firms saw the female associate percentage drop to 44.68 percent while Black/African American associates’ percentage fell to 3.95 percent. However, minorities and women have gained ground on achieving jobs as partners.

Minorities account for 7.5 percent of partners while women are at 21.46 percent. These numbers are a slow, but steady, increase from years past. Minority women partners in large firms, those over 700 people, maintain a 3.12 percent and minority lawyers overall increased their representation to 13.97 percent. With a few decreases in representation of minorities on the associate front, the trend is on the positive side with slight increases each year.

-NALP

Wasting work time

GEN X 70%

Not right to restrict offense speech

Fifty percent of Americans in the work force confess to checking the Internet for personal reasons while on the job says FindLaw.com. The

40% MILLENIALS 60%

Right to restrict offensive speech

top three culprits for wasting time at work are personal email, news and Facebook. The root of the problem was due to these top three reasons: bored or avoiding work, not wanting to wait until after work and better Internet connection at work. While at work, though, the computer is allowed to be monitored by the employer, which may reflect poorly upon you if your time is spent unwisely.

-Thompson Reuters

Mentors trump family members

Twenty-four percent of lawyers claim that mentors have been their “single best source of career advice” with coworkers and peers ranking in second place with 23 percent.

Parents and other family members or relatives merely have a vote of 13 percent. This information was found through an independent survey which called 350 lawyers in the United States and Canada.

-Robert Half Legal

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Drones and the Law What you need to know

By Robert L. Ellis No, you can’t legally shoot one down.1

That answers the most frequently asked question, but drones, or small Unmanned Aerial Systems (UAS), are beginning to appear everywhere, raising more questions and unique legal challenges.2 Enacting state or local regulations regarding these new devices, or advising clients regarding them, requires an understanding of the complex mix of federal, state and common law that applies whenever aviation is involved, and how the law is changing to adapt.

The new high-tech drones

Until recently, the only small pilotless aircraft in private hands were radio-controlled (RC) models flown by hobbyists, generally within a few hundred feet of the person with the transmitter. Nonetheless, the Federal Aviation Administration (FAA) recognized early that even “model aircraft can at times pose a hazard to full-scale aircraft in flight and to persons and property on the surface,” and in 1981 issued model aircraft operating standards.3

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RC aircraft never presented much of a safety issue to other airspace users, but the sudden appearance of numerous consumer-product drones that can fly for thousands of feet in any direction (including up) while being virtually impossible for pilots to see, is creating a flight safety nightmare. The risk of catastrophic accident is real. As the FAA points out, “we have witnessed a huge influx of casual users, people who fly UAS for entertainment or recreation…. The vast majority of these operators do not have the basic aviation training or experience required for pilots of traditional aircraft. They have no knowledge that they may be flying in controlled airspace. Some may have no recognition that their actions could have serious consequences. They are simply having fun with a toy.”4 Drones are here to stay—not as toys, but as remarkably useful devices capable of performing tasks that have been prohibitively expensive or impossible. Almost everyone has seen examples of stunning drone-based, high-definition videos. News reports regularly describe creative new ways drones are being used: search and rescue, accident investigation and

insurance adjustment, rapid blood and transplant organ delivery and high-definition 3-D mapping. Drones can be programmed to fly the same ultra-precise route repeatedly, enabling automated up-close inspection of power lines, bridges, pipelines and wind turbines, as well as real-time, multi-sensor mapping of farms right down to individual plants. In the nottoo-distant future, drones will have two-way communications capability, enabling restaurants to take lunch orders from workers—and then deliver the lunches. Police will be able to patrol neighborhoods, remotely investigate crime scenes, question suspects and pursue them if necessary, and journalists will be able to conduct live on-scene interviews moments after an event occurs. The FAA classifies a UAS as “small” (sUAS) if it weighs up to 55 pounds—far larger than the typical photography drone—and companies are eager to put these “small” drones to work.5 The FAA has already received numerous applications for permission to start drone-based package delivery.

Federal aspects of drone law

The laws and regulations applicable to drone flights are almost entirely federal.

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The federal government “has exclusive sovereignty of airspace in the United States”6 and the FAA sets all standards for flight safety,7 “preempting the entire field from state and local regulation.”8

Section 333 petition. If the operator will never fly the drone more than 200 feet above the ground, no separate COA application is needed since every 333 exemption comes with an automatic COA for flights up to that altitude.

Despite its exclusive responsibility for air safety, the FAA was

“In the not-too-distant future, drones will have two-way communications capability, enabling restaurants to take lunch orders from workers—and then deliver the lunches.”

blindsided by the advent of small drones; its attempts to address UAS flight safety issues had been focused on large remotely-piloted aircraft that would be in contact with air traffic controllers.9 Nonetheless, since the FAA’s job is “to provide the safest, most efficient aerospace system in the world,”10 it has enthusiastically embraced the task of integrating small drones into the mix, and readily acknowledges that it has some catching up to do.11

Current federal regulation of drones

The primary federal regulation regarding UAS operations was issued in 2007 and is still in force today: “[N]o person may operate a UAS in the National Airspace without specific authority.”12 In 2012 Congress passed the “FAA Modernization and Reform Act” (FMRA)13 requiring the FAA to come up with comprehensive drone regulations by September 2015; the FAA deliberately missed that deadline in order to take into account the new small drones, as well as the large number of comments and suggestions from the public regarding them. In the meantime the FAA, using its right14 to grant exemptions and waivers, has

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implemented a two-tier approach to enable drone owners to obtain that “specific authority” to fly until the comprehensive regulations are issued.15 The first tier is for commercial UAS operations—anything that is even slightly business-related—and is a three-step process. First the owner must apply for and receive an “N-number” aircraft registration for the drone, just as if it were a full-size aircraft.16 Since full-size passenger aircraft are subject to stringent airworthiness and inspection requirements that are unnecessary for drones, the second step is for the owner to obtain a special Section 333 exemption from those requirements.17 A Section 333 petition is not a mere formality; it is exacting and requires detailed information about both the specific drone to be used and the pilots who will fly it. Only licensed pilots are permitted to fly drones for commercial purposes.18 Each petition is carefully scrutinized. Turnaround time is about six months. The third step is to obtain a “certificate of authorization or waiver” (COA) to fly in specifically-described airspace.19 The COA application can be submitted at the same time as the

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As a practical matter, any commercial organization or individual who owns a drone must obtain an N-number, a Section 333 exemption and a COA in order to legally fly it—with one curious exception:20 The FAA is statutorily prohibited from regulating “model aircraft” flown for “hobby or recreational use.”21 This carve-out was intended to protect RC hobbyists, but instead created confusion: The term “model aircraft” is defined so broadly that any drone can qualify, but whether a drone constitutes a “model aircraft” depends on how it is being flown.22 The exact same drone flown along the exact same route, minutes apart, might be an exempt, unregulated “model aircraft” that can be legally flown by a child for one flight, and a nonexempt sUAS requiring full compliance with registration, exemption, and pilot requirements for the other.

Amazingly, while the FAA routinely imposes altitude restrictions for flights under a COA, 23 it is statutorily barred from imposing altitude restrictions for “recreational” flights.24 Nonetheless, because the FAA is permitted to pursue enforcement actions against anyone, even hobbyists, who create a danger to flight safety, 25 the FAA

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can impose flight restrictions on recreational drone operators, 26 and has imposed a de facto altitude restriction of 400 feet for recreational flights.27 The “recreational use” exception makes little sense from a flight safety perspective. For business owners it also creates a strong incentive to pretend that a flight is for “recreational use.”

It is likely that the “recreational use” exception and the FAA’s inability to regulate drone recreational flights will be substantially changed. In the meantime, all the FAA can do is try to scrutinize flights, and if a “recreational” flight is really business-related, the FAA will treat it as an “operation of a UAS in the National Airspace without specific authority.” In such cases, the FAA will usually send a warning letter, but in egregious cases it will institute an enforcement action. The FAA has already fined one company $1.9 million for 65 unauthorized flights over densely populated areas.28 Since the FAA is prohibited from regulating recreational sUAS flights, it has instead issued numerous guidelines and launched a publicity campaign called “B4UFLY” —including a smartphone app—to try to educate the thousands of new drone operators on how to fly safely in the national airspace system.29 It has also decided that a simplified, non-N-number registration of all recreational-use drones other than low-end toys is necessary to “help build a culture of accountability and responsibility, especially with new users who have no experience operating in the U.S. aviation system.”30 This is the second tier of the FAA’s approach toward UAS regulation. Registration is mandatory; it costs $5 and can be done online.31

The role of state law and common law

regulations do not preclude state and local regulation of non-federal aspects of aviation—a principle that also applies to drones. As long as the focus of a law or regulation is not an aspect of aviation that the FAA actively controls (and not an aviationrelated area specifically pre-empted by federal statute such as noise limits), there is plenty of room for state and local exercise of police powers.32 In one case, a company that had obtained FAA authorization to tow advertising banners filed a lawsuit challenging a state law that banned aerial advertising.

The court viewed the FAA permit as pertaining solely to flight safety, not to advertising regulation, and upheld the law, finding that exclusive federal sovereignty over airspace “does not in and of itself exclude any state regulation of aerial advertising.”33 Using this reasoning, a city could legitimately prohibit advertising by drone within its borders. Even in areas where the FAA is active, states and localities may be able to exercise concurrent powers. Aircraft titles and registrations are federal, yet state mechanic’s lien laws apply to aircraft and can impair title, and many states impose state-level aircraft registration requirements as well.34 Thus, the federal UAS registration mandate would not preclude a similar state or even local registration requirement. The FAA has imposed insurance requirements on air carriers35 but not on privately owned aircraft, so the field is not preempted, and some states require private aircraft owners to carry insurance.36

They could do likewise for drone owners. State laws not directly related to aviation such as those prohibiting voyeurism, stalking and harassment continue to have full applicability regarding drone operations.

Common law principles can also apply in areas such as private property rights, nuisance and product liability.

Regarding private property, caution is in order. The old notion that ownership of land entails ownership of all the air above it was long ago abrogated by statute, 37 and all navigable airspace is legally in the public domain.38 Navigable airspace is any airspace in which flight can take place, in some cases right down to inches above the ground.39 Many cases have confirmed that a property owner does not have a cause of action for trespass where a flight is conducted in airspace above the property in compliance with federal regulations. Where a helicopter hovered low over a homeowner’s property while the crew shot video for a news story, the court rejected a trespass claim.40 The same is true for claims that the mere creation or recognition of navigable airspace over private property, or some flights through such airspace, constitute a “taking” for which compensation must be paid.41 Moreover, the FAA has a statutory mandate42 to regulate the safety of “air commerce,” an authority “clearly not restricted to the utilization of ‘navigable airspace.’”43 Thus, any trespass suit regarding drone overflights would be difficult to win without a showing of actual damages.

Any purported ban on overflights by a private company or educational institution, or any local ordinance attempting to ban drones from delivering packages, would likely be overturned if challenged.44 What about nuisance suits?

A century ago, a court expressed what might be called the “noises of progress” principle when

Federal sovereignty over American airspace and federal preemption of aviation safety

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dismissing a property owner’s nuisance claim against a railroad: “A material amount of noise is produced […] by modern civilization.”45 In another early case, the court refused to enjoin a business from staying open late and attracting traffic, pointing out that the recent appearance of automobiles on the roads, including at night, had become normal “but would some years ago have been considered a nuisance.”46 Just as courts in the early 20th century accepted trains and automobiles as the price of progress, it seems likely that courts in the early 21st will accept drones. And just as nuisance lawsuits are still possible against individual automobile owners, so too are they available for use against drone owners, but for a nuisance claim to succeed, the injury must be “real, material, and substantial.” 47

manufacturers will be required to equip their products with hard-coded transponders to enable identification and location while in flight, keys or biometrics to ensure that a drone is operated only by an authorized person, GPS-based “geo-fencing” with realtime updates to prevent flight into unauthorized areas, and see-and-avoid technology and automatic flightlogging. Many of these features are already available in some drones.

Staying legal, for now

Regarding product liability, the “federal government’s regulatory presence… while extensive, leaves room for the States’ traditional role of compensating injuries based on common law products liability standards.”48

Anyone who owns a drone must register it with the FAA, and thereafter can fly it without getting in trouble as long as the flight takes place during the day and in good weather, as long as the drone stays at least five miles from airports, doesn’t fly higher than 400 feet, doesn’t fly over crowds or endanger anyone, and as long as the flight is just for fun. Anyone who wants to fly a drone for commercial purposes must apply for and receive an N-number, a Section 333 exemption, and a COA and must comply with federal aviation safety regulations.

Potential for misuse

Author bio

The future of drone regulation

Endnotes

As has been the case for every new technology, drone technology can be misused. There are already reports of small drones being used to drop contraband into prisons, and there is concern about their potential use to commit a variety of crimes.49 For this and other reasons, the more that drones are used, the more they will be regulated.

Ohio Lawyer

Notwithstanding a few judges who have acquitted defendants charged under state or local law (usually destruction of property) with shooting down drones, destroying or disabling an aircraft is a federal crime pursuant to 20 U.S.C. §32 – and a drone is unquestionably an “aircraft” as defined in 49 U.S.C. §40102 and 14 CFR 1.1 (a device that is “invented, used, or designed to navigate, or fly in, the air”). To date there has been

1

The registration requirement is the first step in bringing order to the chaos that currently reigns when it comes to integration of UAS into the national airspace. Future requirements will likely rely heavily on technology rather than operator training since it is unlikely that many hobbyist drone operators will receive adequate training regarding airspace classifications or flight safety rules. Drone

10

Robert L. Ellis is a partner at Hennis, Rothstein & Ellis LLP in Columbus. He is a long-time pilot and aircraft owner, and a short-time drone owner. rellis@hennisrothstein.com.

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no reported federal prosecution of anyone for interfering with a drone.

Some drone operators whose craft have been shot down or otherwise attacked have sued for damages.

2 Official FAA terminology: “The term ‘unmanned aircraft system’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.” FAA Modernization and Reform Act of 2012 (FMRA), P.L. 112-95, §331(8).

3 FAA Advisory Circular (AC) 91-57, “Model Aircraft Operating Standards” (June 9, 1981), p.1.

These standards were updated in Sept. 2015 by AC 91-57A to reflect the FMRA’s new definitions of “model aircraft operation.”

4 Deputy FAA Administrator Michael Whitaker, statement before the House Committee on Transportation and Infrastructure, Committee on Aviation, Oct. 7, 2015, p. 2.

5 FMRA §331(6).

6 49 U.S.C. §40103(a)(1).

7 The FAA’s statutory mandate is to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. §40103(b)(1).

8 Abdullah v. American Airlines, Inc., 181 F.3d. 363, 367 (3d Cir. 1999). (State and local regulation of aviation would create a patchwork of rules that would make a national air transportation system impossible); Command Helicopters, Inc. v City of Chicago, 691 F.Supp. 1148, 1151 (N.D. Ill. 1988)(city ordinance imposing helicopter safety regulations invalid); Allegheny Airlines v. Village of Cedarhurst, 132 F.Supp.

871 (1955)(village ordinance banning flights below 1000 feet invalid).

9 As recently as two years ago, the FAA still had not noticed small drones: “UAS cannot comply with certain air traffic control clearances, and alternate means may need to be considered (e.g.,

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use of visual clearances); UAS present air traffic controllers with a different range of platform sizes and operational capabilities.... [a]nd some UAS . . . require manual placement and removal from runways....” FAA, “Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap,” 1st Ed. (Nov. 7, 2013) sec. 2.2.3.

10 www.faa.gov/about/mission/.

11 “[I]ntroducing sUAS] into the nation’s airspace is an opportunity and a challenge for both the FAA and the aviation community. FAA rules and policies must provide flexibility to accommodate this integration while ensuring the safety of the National Airspace System (NAS).” FAA Notice 8900.291 (Mar. 24, 2015), par.4.

12 FAA, “Unmanned Aircraft Operations in the National Airspace System,” 72 Fed. Reg. 6689 (Feb. 13, 2007).

13 P.L. 112-95.

14 49 U.S.C. §44704.

15 FMRA §332 required the FAA to promulgate new UAS regulations

by Sept. 30, 2015. The FAA intends to issue the new regulations, which will be found at 14 C.F.R. Part 107, sometime in 2016. See 80 Fed. Reg. 9544 (Feb. 13, 2015).

16 49 U.S.C. 44711 and 14 CFR Part 47 require all non-recreational UAS operators to register their aircraft via form AC Form 8050-1. See www. faa.gov/licenses_certificates/aircraft_ certification/aircraft_registry/UA/.

17 FMRA §333, “Special Rules for Certain Unmanned Aircraft Systems”; 14 C.F.R. §11.81. The petition process is described at www. faa.gov/uas/legislative_programs/ section_333/how_to_file_a_petition/.

Governmental entities are not required to obtain a §333 exemption.

18 Any type of pilot’s license other than a student license is sufficient.

The reason: “UAS operations authorized under Section 333 will only be conducted by airmen with valid airmen certificates, which have been screened by TSA, thereby meeting the statutory requirement

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in Section 333 for operations to not pose a threat to national security.”

FAA, “Public Guidance for Petitions for Exemption Filed under Section 333,” Sept. 25, 2014, p.4.

19 The process is described at www. faa.gov/uas/legislative_programs/ section_333/how_to_file_a_petition/.

The process can be initiated online at https://ioeaaa.faa.gov/oeaaa/ Welcome.jsp (account required).

20 Two other ways to get “specific authority” exist. One is to obtain a Special Airworthiness Certificate pursuant to 14 CFR 21.75(b); another is to obtain a “Restricted Category” type and airworthiness certificate pursuant to 14 CFR 21.25(a)(2) and 21.185. These alternatives are not practical for most operators.

21 FMRA §336(a).

22 FMRA §336(c) defines “model aircraft” as “an unmanned aircraft that is (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”

23 Anyone who receives a COA is automatically permitted to fly an sUAS up to 200 feet above the ground. This “blanket exemption” is described at www.faa.gov/ news/updates/?newsId=82245.

24 FMRA §336, which prohibits the FAA from regulating recreational flights, contains no exceptions for altitude restrictions.

25 FMRA §336(b); 41 CFR §91.13.

26 For example, the FAA prohibited all flights, specifically including recreational drone flights, from operating within a temporary flight restriction (TFR) area during the Pope’s visit to Philadelphia in Sept. 2015.

27 The FAA advises recreational operators to “follow best practices including limiting operations to 400 feet above ground level,” FAA AC 91-57A (Sept. 2, 2015), p. 3, but seems intent on enforcing this limit.

As one FAA official put it: “Watch what happens if we see a recreational flight that goes above 400 feet.”

“FAA Proposes $1.9 Million Civil Penalty Against SkyPan International for Allegedly Unauthorized Unmanned Aircraft Operations,” FAA Press Release, Oct. 6, 2015.

29 See www.faa.gov/uas/b4ufly/.

30 U.S. Transportation Secretary Anthony Foxx, speech and press release, Oct. 19, 2015.

31 All UAS weighing more than 250 grams must be registered at www. faa.gov/uas/registration. The $5 fee is waived until Jan. 20, 2016.

FAA, “Registration and Marking Requirements for Small Unmanned Aircraft,” RIN 2120-AK82 (Interim final rule, Dec. 21, 2015). This 211page rule is available at www.faa.gov/ news/updates/media/20151213_IFR. pdf. The registration requirement is explained in Unmanned Aircraft Systems (UAS) Registration Task Force (RTF) Aviation Rulemaking Committee (ARC), “Task Force Recommendations Final Report” (Nov. 21, 2015), www. faa.gov/uas/publications/media/ rtfarcfinalreport_11-21-15.pdf.

32 The Federal Noise Control Act of 1972, 42 U.S.C. §4901, pre-empts the entire field of aircraft noise regulation.

See City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973).

33 Skysign International, Inc. v.

City and County of Honolulu, 276 F.3d 1109, 1116 (9th Cir. 2002).

34 The Federal Aviation Act, 49 U.S.C. §§ 1301(2) and 1404(c), requires that all aircraft title documents be federal, and preempts state laws permitting aircraft ownership transfer without documentation. Philko Aviation, Inc. v. Shacket, 462 U.S. 406 (1983).

Federal law, 49 U.S.C. §44107, and federal regulations, 47 C.F.R. Part 47, require federal registration of all aircraft as well. Nonetheless, state aircraft registration laws for purposes of taxation (to support non-federal aviation infrastructure such as airport access roads) are not viewed as preempted, nor are state mechanics’ lien laws. See Aeronautical 28

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TITLE

By Kevin P. Braig 12

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www.ohiobar.org

DFS businesses gamble with legal intricacies that will ultimately decide their futures (or lack thereof).

Prior to 2006, daily fantasy sports or “DFS” did not exist. Online fantasy sports consisted solely of an illiquid season-long game in which a participant paid an entry fee on the opening day of the season; selected a roster of players subject to a fixed salary cap; managed, traded and cut the selected players like a real general manager over the entire course of the sport’s full season; and captured a typically small monetary prize six months later if that management was better than the management of the other participants in the league.

Those seeking liquid action online and 24-hour payouts prior to 2006 played online poker or patronized off-shore online sports books. Traditional season-long fantasy sports was not intended or structured to be an appealing and satisfactory option for “action seekers” because traditional fantasy sports, like the real sports being mimicked, did not offer liquid action.

A change in gaming law

The online gaming status quo changed significantly on Oct. 13, 2006, when President George W. Bush signed the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) into federal law. The UIGEA restricted online gaming by making it illegal for banks and other financial service providers to process online poker and sports betting transactions.

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According to multiple media reports, the UIGEA restrictions on poker and sports betting gave birth to DFS—which matches fantasy sports participants in contests on a daily or weekly basis—when FanDuel CEO Nigel Eccles discovered an exemption in the law for “skillbased” fantasy sports during a trans-Atlantic flight in 2009.

Importantly, the UIGEA provided only an exemption for, not an authorization or regulation of, fantasy sports. If the UIGEA had truly authorized and comprehensively regulated DFS, then the DFS platforms could safely offer DFS in all states because the Supremacy Clause of the U.S. Constitution likely would pre-empt any contradictory state law. But the UIGEA expressly and clearly did not provide such pre-emption of state law.

At the time Congress passed the UIGEA, Eccles had secured approximately $1 million in venture capital and was operating a news “prediction market” game under the name Hubdub. Soon after Hubdub pivoted into FanDuel, the platform began to attract more investment and copy-cat DFS platforms began to appear. In April 2012, DraftKings obtained $1.4 million in venture capital seed funding to launch its own DFS platform.

Investors fund sharks and fish In July 2015, Forbes and other news sources reported that both FanDuel and DraftKings were poised to receive new blockbuster funding rounds. First FanDuel announced it had secured $275 million from investors. Two weeks later, DraftKings announced it had secured $300 million from Fox Sports and other investors in a deal that included a multi-year commitment from DraftKings to spend an additional $250 million for advertising on the Fox Networks.

When the venture capital dust settled, NBC Sports Ventures, Turner Sports and the National Basketball Association held equity interests in FanDuel. On the DraftKings platform, Fox, Major League Baseball, the National Hockey League and Major League Soccer held equity.

From the moment investors sank more than a half billion dollars into DFS, the odds that their investments would quickly pay off in profits began to grow exponentially.

On July 15, 2015, one of the original investors in a now-defunct DFS platform published a blog post that stated the DFS business model—like the pre-2006 online poker model—is calculated to attract sophisticated, high-volume participants known as “sharks,” who glide across DFS

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platforms in search of plentiful schools of unsophisticated participants known as “fish.”

On July 27, 2015, the Sports Business Journal published the research of Ed Miller and Daniel Singer which found “DFS affords a huge advantage to skilled players.” Miller and Singer found that in the first half of the 2015 Major League Baseball Season, 91 percent of all DFS profits were won by just 1.3 percent of the DFS participants.

Similarly, in a Sept. 10, 2015, article “You Are Not Good Enough to Win Money Playing Daily Fantasy Football”, Joshua Brustein and Ira Boudway stated that an analysis for Bloomberg Business found that the top 10 DFS participants in the study group entered 873 winning lineups per day, the top 100 DFS participants entered 330 winning lineups per day, and the remaining 20,000 participants entered 13 winning lineups per day.

Sharks thoroughly dominate fish because the DFS market is inefficiently structured.

Efficient markets are self-correcting mechanisms

An efficient market is one in which prices incorporate all available information about value.

In an efficient market,

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participants may be able to briefly take advantage of new information, but the market quickly returns to an efficient state as knowledge of the new information “spills over” to others. Efficiency does not require that the prices be equal to true value at every point in time. All efficiency requires is random deviations from true value. If deviations are random, then no individual participant or small group of participants will be able to dominate the market.

In other words, an efficient market is a self-correcting mechanism, where inefficiencies appear, but disappear quickly as participants find them and act on them.

For example, quantitative data has proven that the traditional sports betting market in Nevada is an efficient market. In 2015, UNLV’s Center for Gaming Research found that during the 30-year period between 1984 and 2014, Nevada sports books held on to 4.5 percent of over $52.7 billion bet on football, basketball and baseball.

The 4.5 percentage is equal to the theoretical hold percentage on a standard single game sports bet. On a standard single game sports bet, a participant risks $110 to win $100.

When the casino’s action is balanced on the game, its sports book takes in $220 (the “handle”), pays out $210 to the winning side after the game and keeps $10 or 4.5 percent ($10/$220 = 0.45) of the losing side’s $110 as its commission (known as the “hold” or the “vigorish”).

In other words, over the past 30 years, Nevada sports book customers collectively lost exactly—not more, and not less—what one would expect them to lose in light of the odds that slightly favor the sports book.

Liquid vs. illiquid

“Sports betting has thrived despite a large skill gap between the average sports fan and the sharp bettor,” Miller and Singer wrote in the Sports

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Business Journal. “The reason is that the lines are set by a large, liquid market. You can walk up to a betting window in Las Vegas, select a team at random and still win almost 50 percent of the time. Betting randomly, you will lose money over time, but your average loss will only be slightly over the 4.5 percent vigorish.”

DFS action, on the other hand, is not subject to liquid pricing. Rather than a sports book’s continuously updated lines, the DFS action is priced based on a fixed “salary” that applies to each NFL, MLB or NBA player that a participant selects for his or her DFS team. In other words, on the DFS

“

market, DFS is more of a “game of chance” than traditional sports betting because—for the overwhelming majority of persons—participating in DFS is a much riskier bet than making a standard bet with a licensed and regulated Nevada sports book.

Because DFS is a more inefficient and riskier game than traditional sports betting, DFS not only creates many small fish who lose small amounts of money, but also creates a significant school of big fish that lose at “staggering rates,” according to Miller and Singer. “[T]he DFS economy depends heavily

DFS might economically implode if a chain of events is set in motion that sparks the public or regulators to find the small subset of sharks unfairly possess information edges that the large subset of fish do not possess.

On Oct. 5, 2015, New York Times reporters Joe Drape and Jacqueline Williams revealed that DraftKings employee Ethan Haskell crossed to the FanDuel platform and won $350,000 on the same day that he mistakenly released aggregate ownership data on the DraftKings platform.

Public revelation of Ethan Haskell’s cross-platform score immediately

Because DFS is a more inefficient and riskier game than traditional sports betting, DFS not only creates many small fish who lose small amounts of money, but also creates a significant school of big fish that lose at ‘staggering rates’

”

platform, the action is liquid, but the pricing of the action is illiquid.

DFS is riskier than traditional sports betting

Clearly, “DFS skill” and “traditional sports betting skill” are the exact same skill: Identifying and exploiting inefficiencies in the market. It is the exact same skill a speculator in the stock market, the commodity markets or any other regulated market needs to be successful.

The only difference between traditional sports betting and DFS is the structural difference between an efficient market and an inefficient market, not a pedantic distinction between the respective roles of chance and skill in the games. Indeed, because DFS is the more inefficient

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on retaining the big fish,” Miller and Singer wrote. “They had a staggering loss rate of 31 percent of what they paid in entry fees and accounted for 75 percent of all losses. Each minnow loses less than $10 per month and may happily continue to play forever, but each big fish loses more than $4,000 per year. The entire DFS economy depends on these few players.”

This business model creates not only ever increasing risk to new players, but also ever increasing risk to the DFS platform itself.

Legal nets catch DFS operators

As the DFS platforms have grown over the past few years, their dependence on big fish losing big money has grown.

Consequently, the risk has grown that

transformed DFS operators from fishermen seeking to net as many sharks and fish as possible into a hunted species struggling to stay out of a plethora of legal nets.

Nevada Attorney General opines DFS legalities

Most significantly, on Oct. 16, the Nevada Attorney General made clear that the argument that DFS is a “skill based” game will not be the platforms’ life preserver when he issued a wellreasoned, formal opinion stating “the determination of whether an activity constitutes a gambling game or a sports pool under Nevada law does not require analysis of the skill level involved.”

In interpreting the definitions of “gambling game” and “sports pool” in sections 463.0152 and 460.0193

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of the Nevada Revised Statutes, the Attorney General stated: [A] gambling game is (1) any game played with cards, dice, equipment or any device or machine for any representative value; (2) any banking game; (3) any percentage game; or (4) any other game or device approved by the Nevada Gaming Commission. The broad definition makes no distinction between games of skill and games of chance.

Therefore, while a determination that an activity is a game of skill is relevant to determining whether that activity is a lottery, it is not relevant to determining whether that activity constitutes a gambling game. Similarly, NRS 463.0193, which defines “sports pool” as the business of accepting wagers on sporting events or other events by any system or method of wagering, makes no distinction between games of skill and games of chance.

Indeed, it has long been noted that there is a strong element of skill involved in sports wagering.

The Attorney General then applied the Nevada definition of “gambling game” to the DFS platforms in a common sense, straight-forward manner: With some exceptions, the daily fantasy sports owners pay money to play the simulated games and compete with each other based on their total scores. If an owner wins, the owner gets money back.

If an owner loses, the owner loses the bet made. When owners play against each other, some will win and some will lose. Thus, because owners risk money on an occurrence for which the outcome is uncertain, wagers are present.

The Nevada Attorney General’s opinion is perfectly consistent with the position set forth in 2013 by the legal advisor and the compliance officer of Betfair, the world’s largest online peer-to-peer betting exchange platform. In “The Prohibition of Betting Exchanges is in Breach of EU Law” published in

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Gaming Law Review and Economics, Martin Lycka and Justin Hubble stated: Online exchange betting is a market-driven gambling system which enables customers to request bets on either side of the market….

At the end of every match, the exchange betting provider matches the two sides of the market and pays out the winnings to the winning customers, having first deducted a commission in the form of a percentage of the winning bet. In this sense, an exchange operator is indistinguishable from a traditional bookmaker (except it perfectly manages its risk) or a pari-mutuel tote operator (except that fixed odd bets can be secured on the exchange).

Ohio gaming law is consistent with Nevada and New York On Nov. 10, 2015, the New York Attorney General likewise issued an opinion finding DFS to be illegal gambling under New York law, according to which, “a person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence.” Based on that finding, the New York Attorney General concluded that DFS is illegal bookmaking in New York and ordered the DFS platforms to ceaseand-desist offering their matching services to New York residents.

Ohio gaming law, as well as the law of many other states, is virtually identical to Nevada and New York law.

Section 2915.01(B) of the Ohio Revised Code defines a “bet” as “the hazarding of anything of value upon the result of an event, undertaking or contingency, but does not include a bona fide business risk.” Section 2915.01(A) defines “bookmaking” as “the business of receiving or paying off bets.” Section 2915.02(A) (1) states no person shall “engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking.”

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Evaluating the risks

Clearly, the DFS platforms that operate in Ohio are facilitating the hazarding of value upon the contingent results of player performances in football, basketball, baseball and other sports.

“You are putting money at risk,” NBA Commissioner Adam Silver said in discussing DFS on ESPN’s Mike & Mike radio show on Oct. 27. “People should know what percent of the pool money is paid out in the same way you would at a track or at any other event where wagering is involved,” Silver said.

In addition, the DFS market does not include “a bona fide business risk” because no underlying commercial contracts exist in the DFS markets. Underlying commercial contracts exist in the commodities and stock markets, which create a need for farmers, commodity processors and public companies to engage in bona fide hedging, price discovery and capital financing.

For example, the U.S. Securities Exchange Commission (SEC) has approved Fantex Brokerage Services (Fantex) to provide a platform for the trading of unique investments tied to athlete income—playing contracts, endorsements, speaking fees etc.

The Fantex platform offers athletes— including the Cincinnati Bengals’ Mohamed Sanu and former Ohio State Buckeye Jack Mewhort—a financial tool to hedge their underlying commercial relationships by providing a platform that offers investing speculators the opportunity to invest in stocks linked to the cash flows generated by pro athlete contracts.

Unlike such underlying bona fide business risk, DFS risk is derived from 100 percent pure speculation.

Thus, it appears clear that DFS platforms operating in Ohio are engaging in illegal bookmaking.

The future of DFS

As the Nevada Attorney General pointed out in his opinion, the CEO

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of the DraftKings, Jason Robins, described play on the DFS platform as “a mashup between poker and fantasy sports. Basically, you pick your team, deposit your wager, and if your team wins, you get the pot.”

In contrast, in the traditional fantasy sports games, 100 percent of the consideration at risk is paid to the participants in the game, which qualifies the traditional season-long fantasy business model as a “pool not conducted for profit” under section 2915.01(XX) of the Ohio Revised Code.

With all of this in mind, what does the future hold for the DFS industry?

The odds are good that whatever is on the horizon, the future will include more involvement

Drones and the law continued from page 11

Center Counsel opinion letter, 46 Fed. Reg. 61,528 (1981). Federal law also grants states and localities the right to “collect a tax on or related to a flight of a commercial aircraft . . . if the aircraft takes off or lands in the State or political subdivision as part of the flight.” 49 U.S.C. §40116(c).

35 49 U.S.C. §41112(a).

36 Eleven states have some type of small aircraft insurance requirement.

U.S. Gov’t Accountability Office, “General Aviation: Observations Related to Liability Insurance Requirements and Coverage for Aircraft Owners” (Sept. 2015).

37 The Air Commerce Act of 1926, 44 Stat. 568, established the principle, now codified at 49 U.S.C. §40103(a)(1).

38 “It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe . . . has no place in the modern world. The air is a public highway . . . . Were that not true, every transcontinental flight would subject the operator to countless trespass suits.” U.S. v. Causby,

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of the members of the Ohio bar who practice gaming law.

Author bio

enforcement actions, and has drafted statutory gaming language for proposed state gaming laws.

Kevin P. Braig is a partner in Shumaker, Loop & Kendrick, LLP’s Columbus office. He is experienced in the gaming arena with a particular focus on charitable gaming, software development and daily fantasy sports betting. Kevin advises clients on issues including registration, record-keeping, licensing and compliance with state and federal law, including the Unlawful Internet Gambling Enforcement Act. He also has defended governmental

Kevin received his J.D., from the University of Cincinnati College of Law, and his B.S., summa cum laude, from Ohio University.

328 U.S. 256, 250-261 (1946).

“Navigable airspace” is defined in 49 U.S.C. §40102(a)(32) as “airspace above the minimum altitudes of flight prescribed by regulations [but also] including airspace needed to ensure safety in the takeoff and landing of aircraft.” More simply put: “The FAA is responsible for the safety of U.S. airspace from the ground up.” FAA, “Busting Myths about the FAA and Unmanned Aircraft” (Feb. 26, 2015), www.faa. gov/news/updates/?newsId=76240.

40 Bevers v. Gaylord Broadcasting Co. L.P., No. 05-01-00895-CV, 2002 WL 1582286 (Ct. App. Tex. 2002).

41 To constitute a “taking,” there must be “direct, immediate, and substantial interference” with the use of land. See, e.g. Breneman v. United States, 57 Fed. Cl. 571, 580 (2003).

42 49 U.S.C. §44701(a).

43 Hill v. National Transportation Safety Board, 886 F.2d 1275, 1279 (10th Cir. 1989).

44 If the FAA does not issue uniform regulations regarding particular types of flights, local communities can enact ordinances regarding them. Gustafson

v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996). However, if a local ordinance has the effect of directly regulating flight operations, federal law will preempt it. City of Cleveland v. City of Brook Park, 893 F. Supp.

742, 750-751 (N.D. Ohio 1995).

45 Dean v. Southern Rwy. Co. in Mississippi, 112 Miss. 333, 73 So. 55, 56 (Miss. 1916).

46 Thoenebe v. Mosby, 257 Pa. 1, 101 A. 98 (1917).

47 Elmer v. S.H. Bell Co., ___F. Supp.3d____ 2015 WL 5102707 *9 (N.D. Ohio 2015)(citing Eller v.

Koehler, 68 Ohio St. 51 (1903).

48 Morris v. Cessna Aircraft Co., 833 F.Supp.2d 622, 634 (N.D. Tex. 2011) (relating to federal standards for aircraft design and manufacture).

There is a diversity of views on this issue among the circuits.

49 Here too, federal law does not preempt state law. See, e.g. the Florida Contraband Forfeiture Act, F.S.A. §932.701, which defines “contraband” to include “Any . . . aircraft . . . used or attempted to be used as an instrumentality” of crime.

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Beyond the Courtroom Ohio lawyer provides musical solace

By Cat Dismukes

Probate and personal injury lawyer Fred Kass grew up playing and composing classical, jazz, the great standards and popular music. His passion for music always seemed separate from his legal career that began in 1972.

However, beginning in 2012, experiences led him to the connection between the benefits of music and the needs of clients.

In that year, Kass was invited by an employee to bring his CD of original compositions, “Songs for the Soul,” to sell at a fundraiser for the employee’s relative who was suffering from cancer.

During the fundraiser, he gave the CD to the host restaurant manager to play over the sound system.

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When music played in the restaurant, he noticed changes in the hectic atmosphere among restaurant personnel. The chefs and waiters interacted in a calmer, smoother manner, and the attendees were more relaxed and conversational than prior to the music starting. Kass realized there could be a great potential benefit of this type of music for people suffering from stress and injuries affecting mood and cognitive performance.

Kass followed up on this experience, providing the music from “Songs for the Soul” and a second CD, “A Voice from Heaven,” for certain clients who dealt with life-altering events and injuries affecting mood and expression.

He gave “A Voice from Heaven” to a client who had lost her husband and to another who had lost a child.

Both expressed that the CD was very helpful and most comforting.

Another client was suffering from the effects of a mild traumatic brain injury. He was very upset and had difficulty focusing on his thoughts and in his speech. Kass played the music in his office with some of its vocal and instrumental

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selections. The client became relaxed, actually smiled and showed better concentration in the conversation.

After these and other similar events, he followed with research on publications about the benefits of music. Kass was convinced that music was an important part of assisting people who need comfort and assistance. He observed a noticeably greater relaxation with improvement in concentration during and immediately following the music.

Kass had been performing on the piano for the past 15 years at nursing homes and assisted living facilities.

With these recent experiences and further research on the role of music in assisting the elderly with various cognitive and emotional challenges, he began in the last three years to focus on providing music to senior citizens as often as possible.

Kass has formed with his business partner, Stephanie Martin, the organization and website, “SeniorsSongs,” as part of Martin Kass World-Wide Media and Entertainment Company.

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He provides entertainment in retirement communities such as assisted living, nursing homes, and independent living situations for seniors. You can learn more about his musical services to seniors and how to contact and book musical services, which are also available in conjunction with music therapy. In his performance, Kass plays 25-30 songs from standards, jazz, swing and Latin, including some of his original compositions.

Kass suggests that providing music entertainment and therapy to seniors is a central part of providing the services necessary to care for seniors and improve their quality of life. He can attest from experience that even the most severely impaired person receives joy and benefits from music. For those who wish to get involved with bettering the lives of those with cognitive disorders, “you can visit your veteran’s facilities and nursing homes and provide your musical contribution.” Your help could have a lasting effect on those who listen.

Author bio

Cat Dismukes is an intern in the publications department of the Ohio State Bar Association. She is a junior at The Ohio State University studying communications with minors in professional writing and creative writing.

How does music therapy work?

As you may understand, music tends to be associated with memories; songs easily induce flashbacks of moments past. With that in mind, the Alzheimer’s Foundation of America (AFA) supports music therapy as an aid for patients lacking quality memory recall or dealing with stress.

This is because the “rhythmic… responses require little to no cognitive or mental processing.”1 Due to the lack of cognitive processing required while listening to music, patients can absorb the music and allow it to produce responses that aid in their relaxation or memory recall.

Enhancing the AFA’s support of music therapy, “Music as Medicine”

by Amy Novotney acknowledges that

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the University of Toronto’s Music and Health Research Collaboratory along with the Sun Life Financial Movement Disorders Research and Rehabilitation Centre are researching the required dosage of music required to produce a positive reaction within the patient.2 With certain hertz presented to the patient in one-minute intervals, patients begin to show positive effects.

Patients have shown faster recollection and an improved overall condition.

Not only has this helped those with Alzheimer’s, but also those with Parkinson’s disease have shown decreased stiffness and tremors while promoting an improvement in patients’ walking abilities.

Novotney also notes that music boosts the creation of antibodies, cells that strengthen immunity and the hormone cortisol which is released in response to stress. In findings from a JAMA Pediatrics study, children who listened to music while receiving an IV recorded feeling less stress and pain than those who did not; those administering the IVs stated that the patients listening to music were easier to give an IV. Music noticeably improved the patients’ hospital experience in this instance.

Endnotes:

www.alzfdn.org/EducationandCare/ musictherapy.html 2 http://www.apa.org/ monitor/2013/11/music.aspx 1

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Counsel Comments Client files: What should (or must) be given to the client

By J. Desiree Blankenship, General Counsel One of the practical benefits of membership on a certified grievance committee is the opportunity to attend the annual seminar presented by the Miller-Becker Center for Professional Responsibility, one of whose co-sponsors is the Ohio State Bar Association.

The topics discussed at the seminar are typically of interest to practicing lawyers as well as those involved in attorney discipline. At the most recent seminar, one such topic involved client files and myriad questions that may arise concerning them—and how guidance is forthcoming.

Among the questions that have been raised: •

What is the client file?

•

How long must it be held after a matter is over?

•

What if the client cannot be located when it is time to destroy the file?

The Board of Commissioners on Grievances and Discipline addressed some issues relating to client files in two opinions—92-8 and 2010-2.1 More recently the ABA issued Formal Opinion 471.

In Op. 92-8, the representation had concluded seven years prior to the request for the file and the attorney had been fully compensated.

The opinion advises that “[m]aterials acquired or prepared for the purposes of representing

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the client and other materials that might prove beneficial to the client should be returned [promptly by the lawyer]. These materials include, but are not limited to, all significant correspondence, investigatory documents and reports the client has paid for, filed or unfiled but prepared pleadings and briefs, and all materials supplied by the client.”

The opinion permits the attorney to retain a copy but not to charge the client for the costs of copying the file.

This restriction is now embodied in Comment [8A] to Prof. Con. R. 1.6.

The opinion also recognized that, “[t]he common law right to assert a retaining lien is embodied within [DR5-103(A) and Model Rule 1.8j];” however, the Board discouraged the assertion of such a lien and further qualifies that assertion of the lien must not result in foreseeable prejudice to the client.2 While some may argue to the contrary, the Ohio Supreme Court’s opinion in Reid, Johnson, Downes, Andrachik & Webster v. Lansberry settled the matter of retaining liens, at least for disciplinary authorities:3 “[a] long with the mandatory obligation to withdraw from a case when discharged, an attorney who is discharged must yield the case file.”4 This position is reinforced in Board Op. 2010-2. “[I]n Ohio there is no common law lien on a client’s files in a contingent fee case [citing Reid]. And, in Ohio, there is no statutory lien on client files.”5

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Significantly, the obligation to return a client’s file is not limited to contingent fee cases. A lawyer has been disciplined for, in part, failing to return a client’s file in a non-contingent fee case.6 In Kubyn, the Court found that failure to return the file contravened Prof. Con. R. 1.16 (d)—“failure to take steps, to the extent reasonably practicable, to protect a client’s interest.”

What is the client’s file?

Opinion 2010-2 partially addresses the question of what client papers and property must be delivered to the client.

The beginning point of the analysis is Prof. Con. R. 1.6 (d), which states that client papers and property “may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports and other items reasonably necessary to the client’s representation.” The question presented for resolution by this opinion was “whether a lawyer’s notes of an interview with a current or former client are considered papers to which the… client is entitled upon request….”

The opinion offers no bright line test, but does provide some observations and guidance on how to proceed with respect to the lawyer’s notes where such notes include both items “reasonably necessary” and those which are not. The clearest expression of what notes should be included in the file relates to notes regarding facts about the case—these will most likely be an item reasonably necessary to a client’s representation.

Client may or may not be entitled to entire file at end of representation7

In Formal Opinion 471, the ABA opined on the interplay between

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Rules 1.15 (Safekeeping Funds and Property) and 1.16 (d) (Declining or Terminating Representation). The opinion is of limited utility in that it deals with the situation where the lawyer has been paid in full and adopts the position of a minority of jurisdictions on what constitutes the “file.” Likewise, the ABA has chosen not to include guidance on how long a file should be retained.

The opinion does provide two lists — one of materials the lawyer must surrender: •

Any materials provided to the lawyer by the municipality [client];

•

Legal documents filed with a tribunal - or those completed, ready to be filed, but not yet filed;

•

Executed instruments like contracts;

•

Orders or other records of a tribunal;

•

Correspondence issued or received by the lawyer in connection with the representation of the municipality [client] on relevant issues, including email and other electronic correspondence that has been retained according to the firm’s document retention policy;

•

Discovery or evidentiary exhibits, including interrogatories and their answers, deposition transcripts, expert witness reports and witness statements and exhibits;

•

Legal opinions issued at the request of the municipality; and

•

Third party assessments, evaluations or records paid for by the municipality [client].

And ones that the lawyer need not provide: •

Drafts or mark-ups of documents to be filed with a tribunal;

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•

Drafts of legal instruments;

•

Internal legal memoranda and research materials;

•

Internal conflict checks;

•

Personal notes;

•

Hourly billing statements;

•

Firm assignments;

•

Notes regarding an ethics consultation;

•

A general assessment of the municipality [client] or the municipality’s [client’s] matter; and

•

Documents that might reveal the confidences of other clients.

Board to provide guidance

Questions related to client files are some of the more frequently posed inquiries to ethics authorities. Based on a presentation at the Miller-Becker seminar, the Board of Professional Conduct will issue guidance in the near future to address some of these questions. The guidance will be non-binding, but will provide a helpful starting point for lawyers in addressing the myriad of issues surrounding client files including how long files should be retained, what to do with “old” files and, hopefully, a discussion of whether the lawyer must deliver the files in the format in which they are retained, either electronic or paper, or must the lawyer accede to a client’s request that the file be returned in a particular medium.

Exercise sound judgment

When dealing with client files, in particular how long and what should be retained, fundamentally, the lawyer must exercise sound professional judgment. The presenters I have heard advise that the closing letter to the client should address the issue of file retention, length and disposition.

Consideration should also be given to including this information in the

engagement letter/agreement the client signs; with the engagement letter, one is confident that the client is aware of the provision and has acknowledged understanding of it and, perhaps equally important, can be found.

For those old, old files that many lawyers have, the Board’s guidance should also prove instructive. In that regard, however, if a retiring lawyer asks if you would like her or his client will or other files, a polite “no, thank you” may be the best response.8

Author bio

J. Desiree Blankenship serves the Ohio State Bar Association as General Counsel and Assistant Executive Director of Legal and Business Affairs.

She provides counsel to the Executive Director and her staff, as well as to the OSBA Board of Governors.

Prior to joining the OSBA team, Ms. Blankenship served the Ohio Department of Commerce as chief legal counsel and as assistant director.

Blankenship earned her bachelor’s degree in English from The Ohio State University and received her law degree from Capital University Law School.

Endnotes

Now the Board of Professional Conduct.

Currently Prof. Con. R. 1.8(i) 3 68 Ohio St. 3d 570 (1994).

4 68 Ohio St. 3d at 574.

5 The Board noted also that, “[t]he legality of a lien is a question of law outside this Board’s advisory authority.”

6 Lake Co. Bar Ass’n v. Kubyn, 121 Ohio St. 3d 121 (2009).

7 Karen Rubin’s blog, The Law for Lawyers Today: Ethics, Professional Responsibility and More is a wonderful resource for lawyers interested in recent developments in legal ethics.

8 Gov. Bar R. V, Section 26(c) allows recovery of the fees and expenses incurred in connection with the inventory of an attorney’s files, including filing a claim against the estate of a deceased attorney – even more reason to consider a surrogate lawyer – see e.g., “Protecting Your Clients,” Ohio Lawyer (May/June 2013).

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21

In My Opinion October 6, 1987:

A day that changed the Supreme Court – and America

By Judge Frank Forchione

In October 1987, America became riveted by the fireworks unleashed at the contentious confirmation hearing for Judge Robert Bork. The ferocity and breathtaking pace of the opposition captivated the general public. The fight over Bork’s Supreme Court nomination redefined the Senate confirmation process while Americans witnessed a public grilling by U.S. Senators clearly looking for Bork’s scalp. Most of the arrows shot by the committee chaired by then Senator Joe Biden were directed at Bork’s opposition to the rights not firmly provided in the text of the Constitution and criticism of affirmative action and abortion.

Judge Bork often suggested that the Supreme Court erred in finding a “Right to Privacy” in the Constitution.

This created anxiety and fear among civil rights activists. In the end, Bork was rejected by a 58 to 42 vote. After a recent string of groundbreaking Supreme Court decisions in June 2015, legal scholars now debate how different American law may be if the Senate had confirmed Judge Robert Bork to the Supreme Court.1 Instead, President Reagan nominated the safest, most conservative Republican possible when he elevated Judge Anthony Kennedy to the U.S. Supreme Court. Currently, Justice Kennedy is the Court’s most moderate vote.

As the perennial “swing vote,” Justice Kennedy has decided many of the Court’s most controversial decisions.

Though generally only 20 percent of cases each term are decided by one vote, litigants craft their arguments to capture that one vote—Anthony Kennedy’s—at oral arguments.

According to conventional wisdom,

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Anthony Kennedy runs the Court.

Even the late Judge Robert Bork concurred, “now it’s a funny situation in which the moral life of a nation is, in effect, decided by one Judge, because you have four liberal votes, four solid original list votes, and one vote you can’t predict too accurately in advance.”2 To borrow President George Bush’s self-description, “he’s the decider.”3 Most legal scholars find Anthony Kennedy one of the most enigmatic swing votes on the bench.

Through the tenure of Justice Lewis, Powell and Sandra O’Connor, we have learned the swing vote justice on the Supreme Court has the most influence on the ideological direction of the Court—and America.

In the 2015 term there were 16 major Supreme Court decisions with nine of them decided 5 – 4.

Not surprisingly, Kennedy voted with the majority in eight. More importantly, in just five days in June, Kennedy was the “swing vote” on five different landmark decisions.

•

The Court decided in Obergefell v. Hodges that the Constitution guarantees a right to same-sex marriage.4

•

The Court decided in Glossip v.

Gross that states may use a drug linked to botched executions to carry out death sentences.5

•

The Court decided in Arizona State Legislature v. Arizona Independent Redistricting Commission that voters have the power to strip lawmakers of their right to draw district lines.6

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•

The Court decided in Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc. that plaintiffs suing under the Fair Housing Act of 1968 could prove discrimination using statistics to show that the challenged practice had produced a “disparate impact.” 7

•

The Court decided in three environmental regulation cases that the Environmental Protection Agency violated the Clean Air Act by failing to undertake a cost benefit analysis in deciding whether to set limits on emissions of mercury and other toxic pollutants.

Justice Kennedy’s majority opinion granting a Constitutional right to same-sex marriage across the United States is historic, and arguably the gold standard for American civil rights. His rhetoric has secured an unexpected place in the history books as the champion of same-sex marriage.

Civil rights advocates had more reason to cheer when Justice Kennedy’s vote rescued the 1968 Fair Housing Act as the Supreme Court stood tall against housing discrimination. In Texas this act became a symbol for civil rights being passed by Congress after the death of Martin Luther King and the turbulent demonstrations and race riots that followed. Civil rights groups claimed that the distribution

by Texas of federal tax credits kept African-Americans in highminority Dallas neighborhoods and away from housing opportunities in mainly white, suburban areas.

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Civil rights activists received an even more welcome response when Justice Kennedy provided the nation a much needed wake-up call on solitary confinement. In Davis v. Ayala, the Supreme Court found itself focused on the denial of a Batson challenge in the jury selection of a capital punishment case.8 Kennedy denounced solitary confinement in a scathing, concurring opinion on an issue that had “no direct bearing on the case.” Justice Kennedy supplied a litany of possible side effects to prolonged isolation, including panic, withdrawal, hallucinations, and self-mutilation. Kennedy focused on the fact that the defendant had been held in solitary confinement for the bulk of his 25 years.

Although it was a 6 - 3 decision, Justice Kennedy’s prints were certainly visible on the Court’s upholding of the Affordable Health Care Act. Prior to this, there was speculation that Justice Kennedy’s vote was crucial, and the only one that could save President Obama’s dream of National Health Care.

Health Care opponents were banking on a Kennedy vote after he signed a lengthy dissent finding that Congress had exceeded its authority in mandating that Americans buy health insurance or pay a penalty. Meanwhile, 16 million Americans pondered whether Kennedy could somehow save Obamacare only after a few years of attempting to sink it. In the end, Justice Kennedy joined Chief Roberts and the majority who decreed that the Federal Obamacare subsidies were here to stay and that Obamacare was alive and well.

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It is unfathomable to believe that Judge Robert Bork would have “leaned left” and ruled with the majority in any of these momentous decisions. The public sentiment in 1987 was starving for a Supreme Court willing to recognize important fundamental rights. Judge Bork’s Constitutional vision was based on a simple concept—judicial restraint, a concept he called “Interpretivism.”9 It is obvious that Robert Bork would be unwilling to embrace the social change that the public demands today. Judge Bork’s opinions left a well-documented trail, suggesting the Supreme Court had erred in finding a “right of privacy” in the Constitution.

Although Justice Kennedy is generally conservative, it is obvious he is tilting toward the left. He will continue to be the most influential member of the Supreme Court and will hold the balance of power in the upcoming years as the Supreme Court attempts to navigate the social changes that affect family, relationships, procreation, freedom of speech and capital punishment. With recent decisions, it is clear that Justice Kennedy has secured his place in history as the voice of the Supreme Court on modern America’s most decisive issues. In turn, it is clear that the day Judge Robert Bork was defeated in the Senate, America took a fundamental turn on a path that would reshape America.

Author bio

The Honorable Frank Forchione is currently serving is second term as a member of the Stark County Common Pleas Court. He has two previous articles published in Ohio Lawyer,

“Understanding Ohio’s New Domestic Violence Law” (January/ February 1997) and “The Quagmire of Medical WriteOffs and Bills” (September/October 2012). He is the Chairman of the Stark County Stop Heroin from Killing Committee.

Endnotes

www.abovethelaw.com/2015/06/ robert-bork-wouldnt-have-changedhistory-not-so-sure-about-that/ 2 www.cnsnews.com/news/article/ terence-p-jeffrey/flashback-qajudge-robert-bork-moral-lifenation-could-be-decided-one 3 www.washingtonpost.com/wpdyn/content/article/2007/05/12/ AR2007051201586.html 4 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

5 Glossip v. Gross, 135 S.Ct. 2726 (2015).

6 Arizona State Legislature v.

Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015) 7 Texas Department of Housing and Community Affairs v.

Inclusive Communities Project Inc., 135 S.Ct. 2507 (2015).

8 Davis v. Ayala, 135 S.Ct. 2187 (2015).

9 www.slate.com/articles/news_ and_politics/politics/2015/06/ fair_housing_act_supreme_court_ ruling_anthony_kennedy_and_ the_court_acknowledge.html 1

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Practice Tips Tips for lawyers who want to get good results for clients and make money

By John Lande

After retiring from the University of Missouri School of Law, I compiled some tips for lawyers.

Here are the highlights.

Understand your clients’ interests

Lawyers often assume that they know what their clients want, and while clients usually are very concerned about their bottom lines, they often have additional interests. In most cases, parties want lawyers to treat them with respect and fairness, minimize the cost and length of the process, free time to focus on matters other than the dispute, reduce the emotional wear and tear caused by continued disputing, and protect privacy and reputations.

Plaintiffs may be interested in obtaining favorable tax consequences, getting non-monetary opportunities and receiving explanations or apologies.

Defendants may want to receive acknowledgments about the lack of merit of the charges, make payments in kind, stretch payments over time, share liability with other defendants, prevent ancillary harm (such as loss of credit rating or business opportunities), receive favorable tax consequences, obtain non-disclosure agreements and avoid future lawsuits. If you satisfy your clients’ interests, they are more likely to pay you, hire you again and refer other clients to you.

Pay attention

Lawyers generally want to make the best possible argument and win in litigation or transactional negotiations.

Typically, it’s good to show the law is “on your side,” get favorable agreements

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and win at trial. You are likely to feel good if you can make arguments that persuade others and win trials; that’s often how lawyers measure success and get good reputations. It’s certainly fine to take pride in your work and want to get recognition for it, but remember that your first priority should be your clients’ interests, not yours. Winning is a means to achieving your clients’ ends and it shouldn’t be the end in itself. Don’t “win the battle and lose the war.” Since clients are likely to have multiple interests, your job should be to help them achieve their goals.

Recognize the importance of emotions—especially yours

Many lawyers seem afraid of emotions.

They assume that the law is only about rational analysis of the law and the facts. To them, emotions are messy and get in the way of good legal representation and decision-making.

They wish that people—especially their clients—would put their emotions aside and be more rational, but people can’t avoid emotions and it’s foolish to try.

Emotions provide valuable information, such as what is important. Lawyers should focus on their own fears, which typically permeate legal practice.

Lawyers fear many things, including actions by law firm partners, clients, adversaries and judges.1 Although fear is a normal—and often helpful— emotion, it can lead to serious problems including mental health and substance abuse problems. Develop strategies to deal with stress such as meditation, diligent preparation, mental rehearsals, practice in simulated settings, positive self-talk, advice

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from mentors and mental health services when needed. You can also reduce stress by managing your cases cooperatively when appropriate.

Get to know your counterpart lawyer

Lawyers often assume that their “opposing counsel” will be hard to work with. This can be a self-fulfilling prophecy. Sometimes your counterparts will be a pain in the neck, but often they just want to be reasonable while protecting their clients’ interests. If you have a good relationship with your counterparts, you can work out problems pretty easily. If you have a bad relationship, your cases can become your own “private hell.” If you have a case with a lawyer you have never worked with before, consider getting to know each other over coffee, lunch or even just a phone call. If you do, when problems arise in a case, your counterparts are more likely to call you and less likely to fire off a nasty email or file a motion.

Resolve matters at the earliest appropriate time

Although there are good reasons why lawyers delay moving ahead in some cases, you should generally avoid procrastinating. Lawyers know that the vast majority of cases settle without going to trial, but they often feel powerless to steer clients toward negotiation. Trapped in the “prison of fear,” lawyers may worry about harming their clients if they settle before completing all possible discovery (even though most of it won’t make any difference).2

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Lawyers (and their clients) often worry that merely suggesting negotiation would make them look weak, leading the other side to try to take advantage.

Confident lawyers can “escape” from the prison of fear. As retired Judge Robert Alsdorf says, “Being willing to negotiate doesn’t make you look weak. Being afraid to negotiate makes you look weak.”3 One lawyer I interviewed said, “Sooner or later, you will need to negotiate. You need to get out in front, get the facts, get the client on board. Try to prepare a settlement letter… This drives the case in the right direction. If you wait, you just get sucked into a pile of mud. If the other lawyer sends the letter, then you have to catch up.”4

Be prepared to negotiate more than you might expect

In addition to negotiating final resolution of disputes, lawyers also negotiate with one another about substantive and procedural issues during litigation. For example, lawyers regularly negotiate about acceptance of service of process, extension of

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deadlines, scheduling of depositions and discovery disputes. They also regularly negotiate with many other people as they handle their cases.

Of course, they agree with clients about fee arrangements and how to handle cases. They reach agreements with co-workers in their firms, process servers, investigators, court reporters, technical experts, financial professionals and mediators. They also reach agreements with judges about case management issues such as discovery plans and schedules, referral to ADR procedures and ultimate issues during judicial settlement conferences.

Indeed, litigation is a continuing stream of agreements. If you treat people respectfully and understand their interests, you can reach good agreements that satisfy your clients’ interests without unnecessary disputes.

Get help from mediators when needed

Sometimes, despite your best efforts, you can’t reach a settlement when it would be in both parties’

interest to settle. Mediators can help identify and overcome the barriers to settlement. These barriers may be poor communication, strong emotions, unrealistic expectations, pressure from others (such as superiors in their business, colleagues or spouses) or need for reassurance from a neutral professional. Sometimes, parties won’t accept your advice but will be persuaded by the same analysis from a mediator. Using a mediator can save everyone a lot of money and grief.

Advocate hard and smart

Professor Stephen Easton advises that if you determine an issue is important to fight about, you should “fight hard, fight smart, fight with conviction, passion, and perseverance, and fight to win.”5 I generally agree with this advice with two qualifications. First, even if you determine that an issue is very important to your client, it is important to fight about it only after you have unsuccessfully explored ways to satisfy your client’s interests without fighting.

Second, I suggest using the word

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25

“advocate” instead of “fight” because people often think that lawyers fight in unnecessarily nasty ways.

Lawyers need to advocate effectively, sometimes exercising power both in negotiation and court. If you convey your willingness and ability to advocate effectively, your counterparts may act more reasonably. If you give them the choice of handling the case the easy way or the hard way and they believe you are ready to do it the hard way, they may prefer the easier way.

Author bio

John Lande is the Isidor Loeb Professor Emeritus of the University of Missouri School of Law. He is the author Lawyering with Planned Early

Negotiation: How You Can Get Good Results for Clients and Make Money, a detailed practice guide published by the American Bar Association. He can be reached at landej@missouri.edu.

Unsolicited Advice for Future and Current Lawyers, 56 S.C. L. Rev. 229, 237 (2004), available at www. innsofcourt.org/uploaded/global/ files/2004_winning_essay.pdf.

Endnotes

John Lande. Escaping from Lawyers’ Prison of Fear, 82 UMKC L. Rev. 485, 485-91 (2014), available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2416839.

2 John Lande. Lawyering with Planned Negotiation: How You Can Get Good Results for Clients and Make Money. 6-12. (2d ed. 2015).

3 John Lande. Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better, 16, 63, 94 (2014), available at papers.ssrn.com/sol3/ papers.cfm?abstract_id=2405625.

4 Id. at 74.

5 Stephen D. Easton, My Last Lecture: 1

JIC-336_OhioLawyer_ 7.5” w x 4.754_P1a_Print.pdf

1

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January/February 2016

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Foundation News #Giving(Tuesday) for Access to Justice

#GivingTuesday is an international day of giving fueled by the power of social media in which donors and charities join together to make an impact in their communities, large or small. Taking place annually on the Tuesday after Thanksgiving, 71 countries around the world participated in this year’s event on Dec. 1, 2015, raising $116.7 million.

To celebrate #GivingTuesday, the Ohio State Bar Foundation (OSBF) family worked together to support people who turn to the law for guidance, safety and resolution. Members of the OSBF community donated more than $8,000 throughout the day for several initiatives, one being Access to Justice.

In response to the findings of the Access to Justice Summit that took place on April 29, 2015, the OSBF Board of Trustees established the Access to Justice Fund. With this fund, OSBF’s goal is to provide grant support for research, educational programming, pilot programming, convening constituents, and other efforts that will enhance the pursuit of justice. In fact, OSBF awarded a grant to the Ohio State Legal Services Association for a pilot program in July that establishes a self-help computerbased kiosk inside the Fairfield County courthouse. Individuals using this kiosk will have the opportunity to find resources, court forms and “live chat” with an attorney on the other end of an internet connection.

Connect with OSBF www.ohiobar.org

HONOR. REMEMBER. CELEBRATE. Tribute gifts are a simple and meaningful way to say “Thank You,” “I Remember” or “Congratulations.” To recognize your esteemed colleagues, friends or family by dedicating your tax-deductible gift, call Tammy Savage at 614-487-4477 or visit osbf.net and click “Donate Now.”

IN HONOR OF

(Gifts received from Sept. 15 to Nov. 15)

Lee E. Belardo Stephen F. Tilson

William McCarty Herman J. Weber

William Lane J. Kevin West

C. Lynne Day Beth A. Gillespie

Sarah K. Skow Catherine Garcia-Feehan Nicole I. Khoury Arlene Singer

William K. Weisenberg Beatrice E. Wolper Shirley A. Cochran J. Richard Emens James L. Hoover

Maurice Heller, Esq. Louis R. Bertrand Velda Hofacker Stephen F. Tilson

John W. Weaner

& Karl H. Weaner

James K. Weaner

Eugene P. Whetzel Jack L. Neuenschwander

IN MEMORY OF

(Gifts received from Sept. 15 to Nov. 15)

Edward S. Noble Ohio State Bar Association Stephen L. Smith Professor Ron Raitt Randall C. Dixon

Kathy Weisenberg Jack L. Neuenschwander

Carole S. Dougherty Ronald W. Dougherty

Hon. John B. Tracy Louis Tracy Estelle M. Tracy

Ret. Hon. Thomas Unverferth From the Heringhaus, Schmenk, and Kersh families

Thanks to the generosity of OSBF’s donors, support for Access to Justice and other initiatives during #GivingTuesday enables OSBF to help more people who rely on the law to protect their rights. OSBF appreciates everyone who powered this event by contributing and sharing their support on social media. The more we work together to address a need, the more we can empower legally vulnerable Ohioans.

Debby Cooper, OSBA Manager of Public Content Strategies, shared her support for Access to Justice on #GivingTuesday by taking an #unselfie and posting it on social media.

Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation January/February 2016

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27

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. A mail-in registration form is located on the back cover. We hope you will join us!

a member of the Clark County Bar, Comer chairs the Common Pleas Court Committee and serves on the Program/CLE and Special Projects Committees.

Mock trial volunteers needed

Attorneys are needed to judge the Ohio Mock Trial State Competition on Thursday, March 10, 2016.

Volunteer attorneys provide an authentic educational experience for high school students who argue an original case at the Franklin County Courthouse. Volunteers are needed from 1 p.m. to 4 p.m., and/or from 5 p.m. to 8 p.m. If interested, please complete the volunteer application at oclre.org/volunteer-opportunities, or contact Caitlyn Smith at (614) 485-3507 or csmith@oclre.org.

Interested in free CLE?

Sign up to be a CLE moderator for the Ohio State Bar Association. The Supreme Court of Ohio requires providers of CLE to have a moderator anytime a video replay of a live CLE program is scheduled for a location.

The moderator is there to keep the day on schedule and answer questions from the audience about what was just viewed. The moderator does NOT have any technical or registrar duties. We are looking for moderators in the Cleveland, Columbus, Akron, Fairfield, Perrysburg and Dayton areas.

You will earn free CLE and the OSBA will reimburse for lunch and mileage.

Your name will be put on a list and you will be contacted with future video replay program dates and locations as they become available. If interested, please send your contact information and a short bio to Betsy Metzger at bmetzger@ohiobar.org.

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Springfield attorney announces candidacy for 2016 OSBA president-elect Randall M. Comer announced his candidacy for president-elect of the Ohio State Bar Association.

The election will take place at the Association’s Annual Convention in Cincinnati in April 2016.

Comer graduated cum laude from the College of Charleston in 1993 with a B.S. in psychology and then obtained his law degree in 2000 from the University of Cincinnati College of Law. At the College of Law, he was the Editor-in-Chief of the Law Review.

Comer has been an active member of the OSBA since admission to the bar in 2000 and currently serves on the OSBA Board of Governors as its District 6 Representative. He is the vice-chair of the Budget and Headquarters Committee and the chair of the Non-Dues Revenue Committee.

Comer serves on the Advisory Council on Diversity Initiatives and is a member of the OSBA Labor and Employment Law Section. Comer is presently in the 2015 fellows’ class of the Ohio State Bar Foundation.

He is actively involved in his community serving as the chair of the Clark County Mental Health Foundation, secretary of the Springfield Foundation, and trustee of the Community Health Foundation. He also serves on the Selective Service Board.

Comer is a partner of the Springfield firm of Martin, Browne, Hull & Harper, P.L.L., where he takes an active role in firm leadership. He is a civil trial attorney specializing in labor and employment, workers’ compensation, and contract disputes.

Comer was selected for the Ohio Super Lawyers, Rising Stars, in 2005 and for the Ohio Super Lawyers, 2010-2013.

Counting his family as his greatest blessing, Randall enjoys spending time with his wife Tamara and three children, Grace, Grant and Matthew.

“If elected, I will continue to build upon the great work started by others and strive tirelessly to ensure that the OSBA retains its proper place as the number one bar association in the country.”

He is a member of the Clark County and Dayton Bar Associations. As

January/February 2016

www.ohiobar.org

Member News Cleveland

Edward Chyun, Littler, was appointed co-chair of the National Asian Pacific American Bar Association Labor & Employee Committee.

James. N. Kline, Ulmer & Berne, was elected secretary of the Ohio Association of Civil Trial Attorneys (OACTA).

In Memoriam 2014

George C. Economus 77 Akron June 5, 2014 John P. McDonough 85 Springfield Oct. 5, 2014 Robert A. Goodman 79 Pepper Pike Oct. 24, 2014 William F. Aigler 98 Bellevue Nov. 19, 2014

2015

Mark A. Poland 44 Cincinnati Jan. 27, 2015 B. Eugene Gilbert 66 Dayton Jan. 28, 2015 Stanley S. Keller 81 Beachwood Feb. 17 2015 Terry A. Landis 65 Cleveland Feb. 20, 2015 Jack C. Kerbe 70 Columbus March 3, 2015 correction Victor M. Javitch 77 Cleveland March 9, 2015

James D. Hapner 86 Lynchburg April 20, 2015

Russell H. Booth, Jr 86 Cambridge Sept. 15, 2015

Arthur M. Ney, Jr. 88 Cincinnati May 11, 2015

Joseph A. Pitocco 64 Villa Hills, K Sept. 15, 2015

Jeffrey H. Verwohlt 56 Upper Arlington May 13, 2015

Donald W. Wiper, Jr. 84 Granville Sept. 24, 2015

Carl J. Rose 55 Elyria July 8, 2015

Mark S. Totten 58 Grove City Sept. 28, 2015

Robert E. Mohler 102 Akron July 10, 2015

William M. Kraus 92 University Hts. Sept. 29, 2015

Paul W. Schuch 87 Cincinnati July 14, 2015

Gary C. Johnson 74 Cleveland Sept. 30, 2015

David A. Baker 37 Holland July 20, 2015

James P. McAndrews 86 Fairfax, VA Oct. 11, 2015

Gregory D. Cox 50 Springfield July 20, 2015

Eugene K. Purdy 86 Greenhills Oct. 12, 2015

William D. Moore 85 Garfield Hts. July 22, 2015

Keith McNamara 87 Columbus Oct. 26, 2015

Ralph D. Dye, Jr. 83 McConnelsville Aug. 22, 2015

Dennis M. Whalen 77 Ocala, FL Oct. 29, 2015

Robert T. O’Brien 86 Columbus Aug. 27, 2015 Judge Fred J. Cartolano 88 Cincinnati Sept. 2, 2015 Terrence D. J. Durica 65 Parma Sept. 2, 2015 I. Joseph Berger 89 Cleveland Sept. 3, 2015 John S. Mengle 63 Lebanon Sept. 10, 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

January/February 2016

Ohio Lawyer

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Books & Bytes Book review

[spoiler alert] failing eyesight. His physical demise also torments his daughter with the knowledge that he was a member of the KKK. Aghast at learning of Atticus’s previous association with the notorious racist organization, a friend explained to her, “You know why he joined? To find out exactly what men in town were behind the masks. What men, what

Go Set A Watchman, by Harper Lee. 278 pages. New York, NY: Harper Collins Publishers. 2015. $27.99.

Go Set a Watchman is the belated sequel to the 1960 classic of American literature, To Kill a Mockingbird. The reclusive author Harper Lee actually wrote Go Set a Watchman before To Kill a Mockingbird, but the manuscript reportedly languished for years in a safe deposit box before finally being published and surfacing to the top of the best-seller lists in 2015.

One of the most striking differences between the two novels is the shift in narrative voices. To Kill a Mockingbird is narrated in the autobiographical voice of Jean Louise “Scout” Finch, the smart-alecky eight-year-old daughter of Atticus Finch, a middle-aged, widowed lawyer. Go Set a Watchman is told in the third person, related largely from the viewpoint of the now 26-yearold Jean Louise during the midst of the Eisenhower administration.

Jean Louise seems aimless, torn between staying in New York City or returning to the home of her youth, Maycomb, Ala., to become a caregiver for her elderly father. Atticus, the lawyer father who spoke with “lastwill-and-testament diction” has grown old, arthritic and afflicted with

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Ohio Lawyer

the second book. The rape trial of Tom Robinson, a black man with an arm mangled from a piece of farm machinery convicted of raping a white woman, dominates To Kill a Mockingbird. But in the sequel’s version of the crime, the unnamed defendant is acquitted, the victim is a minor, and the defendant’s

Go Set a Watchman seems unfinished, with sporadic vignettes that didn’t quite fit within the tight chronology of To Kill a Mockingbird. people. He went to one meeting, and that was enough. The Wizard happened to be the Methodist preacher.”

Lee, a law school dropout, makes several allusions to the Warren Court decisions issued during the Eisenhower years and their impact on the culture of the Deep South, but Jean Louise’s contemporary observations as an adult lack much of the same quaint naivety and subtle humor of her Depression-era schoolgirl years.

Atticus, despite his ever growing litany of faults, still offers some pearls of wisdom and advice: “Her father said it took at least five years to learn law after one left law school: one practiced economy for two years, learned Alabama Pleading for two more, reread the Bible and Shakespeare for the fifth. Then one was fully equipped to hold on under any conditions.”

arm was amputated in a sawmill accident. Go Set a Watchman seems unfinished, with sporadic vignettes that didn’t quite fit within the tight chronology of To Kill a Mockingbird.

Harper Lee is one of those rare writers who can cause the reader to burst out laughing or cringe at her prose, yet emerge on the best-seller lists half a century apart between her first two books. Go Set a Watchman, pieced together with To Kill a Mockingbird, could have been a sprawling novel, spanning three decades from the 1930s through the 1950s, but waiting for both books to be published together would have caused us to miss a great modern American novel and a great film.

By Bradley S. Le Boeuf, Akron.

It is clear that Go Set a Watchman is an early draft of To Kill a Mockingbird.

Many of the same characters resurface in the sequel, but in less prominent roles, while minor characters in the first book garner more attention in

January/February 2016

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