THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

Spring 2019 VOL. 33, NO. 2 www.ohiobar.org

Ohio Attorney General Dave Yost On Power, Policy and the Practice of Law

A Modest Proposal for Hearsay Evidence Reform

Lawyer Leaders State leaders and legislators on how their legal training has set them up for success The difference between covering a claim and caring for you.

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The difference President’s Perspective Lawyer Leaders 4 Robin Weaver reflects on his year as OSBA 10 State leaders and legislators on how their legal between President training has set them up for success covering a claim and caring for you.

Ohio Attorney General A Modest Proposal for 6 Dave Yost 16 Hearsay Evidence Reform By Annie Yamson By J. Andrew Root OSBA catches up with the new AG on his The time has come for a change in hearsay 100th day in office exceptions and proponents abound

When it’s your responsibility to protect the interests of others, your own interests can quickly get left behind. We’re here to ensure they don’t – Ohio Lawyer Staff Advertising Sales and Content Advisory Board Chief Marketing Officer: Cynthia Kincaid Editorial Offices Judge David Hejmanowski, Chair, Angelica Jarmusz, Columbus we focus on you, so you can stay focused on your clients. We’re OBLIC Editor: Annie Yamson Ohio State Bar Association Delaware Joe Ludovici, Chester, W.Va. Graphic Designer: Laura Donovan P.O. Box 16562 – the only professional liability insurance provider exclusively devoted to Bradley Adams, DeGraff Columbus, Ohio 43216-6562 Christina Spencer, Dayton leading the effort of protecting Ohio’s lawyers and law firms. (800) 282-6556; (614) 487-2050 Carly Edelstein, Columbus Judge James Stevenson, Sidney OSBA Officers Advertising: [email protected] Alicia Graves, Cleveland Scott Sugarman, Bexley Editorial: [email protected] Paul Hervey, Canton SERVING OHIO’S LAWYERS AND President: Robin Weaver, Cleveland Printing: Hopkins Printing Chris Hollon, Dayton LAW FIRMS FOR 40 YEARS Let’s talk. Call 800.227.4111 or visit oblic.com. President-elect: Eleana Drakatos, Columbus Executive Director: Mary Amos Augsburger OHIO LAWYER SPRING 2019 1 Table of Contents LAWPAY IS

Statehouse Connection FIVE STAR! 23 By Scott Lundregan The not-so-obvious provisions of the Ohio state operating budget In our firm, it's actually fun to do our Practice Tip billings and get paid. I send our bills 24 By Michael W. Hawkins out first thing in the morning and Mediating the sexual harassment case more than half are paid by lunchtime. Access to Justice Foundation News 18 OSBA members volunteer at the Perry County LawPay makes my day! Meet the OSBF 2019 fellows class Driver's License Reinstatement Clinic 26 – Cheryl Ischy, Legal Administrator Austin, Texas 28 CLE Calendar

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LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Citizens Bank, N.A., Providence, RI. My Year as President Honored to Serve in a Year of Change & Great Success

For the last year I have had the pleasure and experiences, but this group has a A-Lawyer page even more appealing of serving as your president. There were natural bond and camaraderie based for potential clients (who, by the way, too many highlights for me to recount on a strong desire to see our profession are the most frequent visitors to our in this article. I would, however, like and the OSBA thrive and the unique website as they look for trusted legal to focus on few. Traveling around the vantage point we have shared. information). state and meeting members at their district meetings was truly rewarding I am extremely proud of the work we For those of you who regularly partake and informative. The members I met have done and the progress we have in our online CLE offerings, there’s were friendly and impressive. Our made to carry on this legacy. Allow been no change in the quality and members make us proud to be a part of me to share just a sampling of those breadth of the programming for which this Association. accomplishments. we are well-known, but the delivery mechanism has been upgraded to give As you are aware every November If I could sum the year up in one word, us more opportunity for interaction and May, those who have successfully it would be “change.” It is no secret between presenters and participants. passed the Bar Exam are sworn in that we are seeing dramatic change in We all need our credits, and the OSBA to the practice. As President of the our profession – changes in the practice is ahead of the curve in making it OSBA I was invited to address these of law, in consumer preferences and convenient to earn them from wherever newly-minted lawyers. I was honored technology, all of which have had a you are. to congratulate and to address them. significant impact on Ohio lawyers. The smiles on the bright faces of the While change is never easy and Another change you may have noticed new lawyers and their families was frankly, an anathema to most lawyers, if you have been to headquarters something to behold. In my address, the OSBA has recognized that we lately is the stunning renovation of I emphasized the role of lawyers in must evolve to respond to it. That is our meeting space. We have brought upholding the rule of law, the glue the only way to serve the needs of our our 26-year-old design into the 21st that holds our country together. I membership now and into the future. Century and more importantly, have also challenged them not to hunker maximized the first and ground floors. down in their offices and crank out This not only allows more opportunity chargeable hours. Instead, I implored Some of these changes have been very visible. The launch of our new, for in-person CLEs, trainings and them to apply their unique problem- meetings, but also allows individual solving skills in working in their state-of-the-art digital engagement platform www.OhioBar.org, which members to reserve unique and well- communities and with non-profit appointed spaces (at a discounted rate) organizations. I hope by now you have taken the time to explore. Once logged in, each to work, to take a deposition, to hold member has a custom dashboard which client meetings, or to host mediations. Last month, the evening before provides a one-stop shop for the tools, our newly revamped and highly benefits and events of most importance Our remodeled headquarters is also successful annual meeting, I had the to you. From there you can register for the location this month of our first opportunity to sit down with past a CLE, RSVP for a meeting, read the Solo and Small Firm Institute, with presidents of this association to talk latest news from our practice library or considerable CLE hours packed into about the state of the bar. We come update your profile to make your Find- a day and a half, covering a variety of from different communities, practices

OHIO LAWYER 4 SPRING 2019 topics relevant to general practitioners. stewardship of our budget, while General Assembly to do criminal This event replaces the CLE portion of leaving it to our CEO and her highly- sentencing the right way – by statute. the Annual Meeting and Convention. capable staff to carry out the significant Though it was a very difficult decision, day-to-day work needed to keep the We talked about criminal sentencing, financially, we determined we could OSBA moving forward. Thanks to access to justice, and many other not continue to hold the Convention Immediate Past-President Randall important issues (thanks to the in its traditional manner. Therefore, Comer for creating the Governance constant churn of good ideas from our between the new institute and the Task Force, which put forth the committees and sections) at our first Annual Meeting of members (held recommendations, to Governor Stuart annual Law Day at the Statehouse. The in early May), we are providing good Cordell for chairing the effort, and to board members and committee chairs programming and an opportunity to all members of the Task Force. met with key legislators to advocate for conduct OSBA business in a more our legislative agenda while reminding efficient and cost-effective way. One thing that has definitely not them that we are always available as changed is the investment and effort a resource to them and to provide the When you paid your dues for 2019, you we have made in advocacy at the practitioners’ perspective. That evening, would have also noticed a significant Statehouse, the Supreme Court and we held a reception in conjunction with change implemented this year. For the in Congress to advance justice and the Ohio Judicial Conference, where I first time, you had a choice in plans, improve the overall operation of the had the pleasure of presenting Lawyer- with levels of benefits based on your law. It has been extremely rewarding Legislator Awards to two deserving needs. This option includes plans to to see our efforts pay off when we lawmakers, Senator John Eklund and support new lawyers and an Emeritus annually visit our Ohio delegation Representative Jim Butler. Plan for those who have retired from in Washington, D.C. to talk about the practice, but still have a strong the continued importance of funding As my term comes to a close, I am desire to stay involved. When I was for legal aid and the Public Service so proud of the work we have done sworn into the Bar there were 1,400 Loan Forgiveness Program, which together to keep this Bar vibrant and of us entering the profession. Contrast is a critical tool for attracting good successful. The OSBA is the “largest that with last November when I spoke lawyers to public service. This year legal network in Ohio” and “the voice at the Supreme Court swearing in they were nodding along with us as we of the profession.” I have come to ceremony, I addressed only 598 new explained the impact of this funding realize that one cannot fully appreciate lawyers. This comes at a time when on the lives of Ohioans and we hope the difference the OSBA makes and all baby boomers are beginning to retire to see them stand up against proposed that we do to live up to those monikers and new lawyers are facing significant cuts at budget time. We are also seeing until you have held the gavel and student debt and a challenging job years of advocacy pay off at the Ohio experienced the whirlwind of a year in market. The OSBA, like bars across Statehouse, where legislators this year office. the country, has not been immune to did not propose any expansion of the declining membership trends. We are sales tax to legal and other services. responding by providing members At the same time, they are looking I want to thank the Board of more options to stay involved at the to increase state funding for indigent Governors and all those who hold level that best fits their needs. Other defense. They are hearing us. leadership posts in this Association bars have taken notice, sought our from the Council of Delegates to our committees and sections, CEO Mary counsel, and see us as key leaders in While we remain supportive of efforts this endeavor. Augsburger and her outstanding staff to reform our criminal justice system and all members new or seasoned who and combat our state’s opiate crisis, we have pitched in and contributed to our Somewhat less visible in your regular took a decisive stand against State Issue success. interactions with the OSBA, but 1 this past November. The proposal which will make our organization would have wrongly enshrined criminal even stronger, was a recent change sentencing changes in our state Thank you for the tremendous honor to our Constitution, approved at the constitution, and as proposed, would and privilege to serve as your President recent General Assembly meeting, to have dealt a blow to judicial discretion this year. modernize our governance structure and the good work of our drug courts and ensure a clear division of labor. to get addicts into treatment instead We want our Board members focused of prison. Now we are working closely on the big picture, oversight, and with reform-minded members of the

OHIO LAWYER SPRING 2019 5 Title

Ohio Attorney General Dave Yost: On Power, Policy and the Practice of Law

By Annie Yamson Ohio Lawyer Editor

OHIO LAWYER 6 SPRING 2019 Ohio Attorney General

In his inaugural speech on Jan. 14, control it, so that the 2019, Ohio Attorney General Dave rest of us can live free Yost spoke about his role for the next and unafraid.” four years as “pushing the system toward the ideal, where every person On his 100th day in stands on level ground.” office, we sat down with the Attorney General At the Lincoln Theater in Columbus, in his downtown he made special note of the venue Columbus headquarters which, “a few short years ago was to learn about his path literally nothing more than a ruin - to this position, the role not unlike our national political life,” of attorneys in society, before stating his commitment to the policy goals he has Yost is sworn in by Chief Justice Maureen O'Connor (left) with wife Darlene protecting the unprotected. initiated along with Courtesy of the Ohio Attorney General's Office those he has yet to As in his speech, Yost often speaks achieve. went out of business. The “final kicker,” about the “corrosive nature of power” he said, was a job as a junior staffer for former Columbus Mayor Buck and his mission to give voice to the On His Early Career powerless. He holds a strong belief Rhinehart, who convinced Yost to A life in the law was not always in the that attorneys are the “workhorses of make law school a reality. cards for Yost. Early on, he set his heart the rule of law,” acting on behalf of on rock stardom. the common man and his passion is “I noticed that when the big decisions advocating for those who cannot speak were made, sometimes the bean for themselves. “I spent a couple years playing music counters were in the room, sometimes in the bars, it’s where I met my wife, the communications people got to go actually, at Bernie’s Bagels,” he said. He framed the inaugural remarks in the room, sometimes there were “I realized after we got married and around Aaron Copland’s composition, operational people in the room, but the started a family that I was going to have “Fanfare for the Common Man,” and one person who was always in the room to get a haircut and a get a real job.” Abraham Lincoln’s adage that “the was the lawyer, and that looked pretty Lord must have a special fondness for cool to me so off to law school I went,” common-looking people because he He began a career in journalism, he said. made so many of us.” writing for the “Columbus Citizen Journal” as a newspaper reporter and Now, Yost says there are “a ton” of gaining inspiration from press coverage practical things he wished he’d learned Yost is a prolific reader and a musician, of the Pentagon Papers and the in law school. The business of running a resulting in a tendency to quote Watergate era. He describes his time in practice, for instance, or moving a court literature freely and often. In the same the news media as deepening an already to do something when a standard form breath, he tells the story of his father — existing idea that truth only exists isn’t available. But he also says that his the first in his family to attend college where there is transparency. public leadership style is greatly affected by way of night school — and quotes by his early training in the law. Thomas Hobbes’ “Leviathan:” “And the life of man … nasty, brutish and short.” “It’s hard to find the truth if you It is meant to be an illustration of why can’t find out the facts, what’s really “In some granular ways, because we’re he feels so passionately about defending going on, and I love the law because trained in process, we’re trained in the common man. it contemplates that idea that we need critical thinking, I think that really transparency,” he said. “Before a lawsuit prepares you well to lead in the public happens we have the discovery process. sector,” he said. “In a broader sense, “The reason it’s important to me is What is that designed to do? It’s because we’re trained to argue multiple because power tends to aggregate and designed to find the facts, to get to the sides of a case, I think that a training as it aggregates, the tendency toward truth so that we can assess the case.” in the law opens your mind and corruption inevitably increases,” he your approach to making sure that said. “The evolution of civil society and you’re inclusive, that you’re hearing the purpose of government has been a With law school always in the back of alternative viewpoints, so that you avoid long arc where we learn to segregate, his mind, Yost was forced to seriously unintended consequences.” incrementalize, isolate power and consider the idea when his newspaper

OHIO LAWYER SPRING 2019 7 Ohio Attorney General

Yost practiced law in Delaware County “The reason they want to kill all the people of Ohio who are relying on a before going into public service as the lawyers is because lawyers enforce the duly passed law of Congress. … I don’t county prosecutor and later, as state rule of law, they make people play by like judicial activism in either its liberal auditor. For him, a run for the office of the rules and prevent those in power or its conservative flavor.” Attorney General was both following from just doing whatever they want to the natural trajectory of his career as do,” he said. “The fact of the matter is, Yost has also made clear that he well as his passion for justice. the first person you call when there is does not shy away from the “messy” a crisis in your life is generally going issues. He has stated a commitment “This is the job I’ve been getting ready to be not your doctor, not your banker, to continuing his predecessor’s, now- for my whole life,” he said. “The idea not your retirement advisor, or your Governor Mike DeWine’s work on of finding the truth, balancing the financial planner – it’s going to be your fighting human trafficking and the equities, finding the right thing to do lawyer, because we count on lawyers to opioid epidemic. and getting out and fighting for it. It understand how things work and how was really a no-brainer.” to help us.” “We have a lot of training we already do in our office and we’re going to do more On Attorneys The thing that has struck of it,” he said on his human trafficking Yost is now essentially the managing initiatives. “We’re looking at how to partner of a firm of about 400 lawyers me most with the career make the law more effective, more fair who set themselves apart by their staff at the AG’s office is and more useful to law enforcement so commitment to public service. that we can actually prosecute the slave that virtually every one traders who are driving the system.” “The thing that has struck me most of them can make more with the career staff at the Attorney money in the private This year, Yost’s office launched a new General’s office is that virtually every grant program for human trafficking one of them can make more money in sector. They stay here courts in Ohio aimed at providing the private sector,” he said. “They stay because they see the “transformation tattoos” for trafficking here because they see the ability to do victims who were marked by their slaver public good … That’s what we do here, ability to do public good. with needle and ink. this is the largest public interest law firm in Ohio.” “Imagine going through the trauma On Policy of being sold to strangers for sex, you His office’s partnership with the Ohio In his first 100 days, Yost has already finally escape this life and you finally State Bar Association (OSBA) results set an ambitious agenda and carved a grab a hold of some shred of sobriety in an even greater reach. For every name for himself on the national stage. and you’re trying to make it … while “bad apple,” Yost says that thousands of He is a Republican, but has set himself you’re struggling with all of this, every attorneys in Ohio are engaging in the apart from the Trump administration day that you get dressed there is a civil and professional practice of law. on some key issues, most notably, reminder on your skin that somebody the Affordable Care Act (ACA). He else claims that they own you,” he said. “Imagine the barrier that would be to “I am committed to a continued recently filed an amicus brief on behalf actually succeeding and surviving your partnership and I’m very glad that of Ohio supporting the preservation of trauma.” they’re out there,” Yost said. “The provisions on pre-existing conditions, OSBA is the leading organization in citing the 1.9 million nonelderly Ohio for professional development, Ohioans who benefit from the In memory of trafficking survivor for the exchange of ideas and for the individual mandate. Jennifer Kempton, who founded the advancement of the profession and I am nonprofit organization Survivor’s Ink, proud of the work that lawyers do in “We’ve got hundreds of thousands of the program has provided $10,000 to society.” young people who are on their parents’ each court in order to give survivors a insurance policies who made plans and new meaning to their tattoos. relied on those provisions,” Yost said. Yost brings up the oft-misquoted line “The law does not require them to be The AG’s office has also targeted buyers from Shakespeare’s “Henry VI,” “First struck because one piece of the ACA of sex at the NCAA tournament using thing we do is kill all the lawyers,” and is unconstitutional. I wanted to make posters to create awareness around the clarifies that the line actually comes Ohio’s voice heard and stand up for the from a scene where revolutionaries are issue. plotting to overthrow the government.

OHIO LAWYER 8 SPRING 2019 “As a buyer of sex, you don’t know was misleading, at best,” Yost said. benefit managers, who he believes whether that woman is being coerced “They helped created the problem that overcharged the state by as much as $15 or not,” he said of the campaign. we have here in Ohio and I’m hoping million while negotiating drug prices. “When we talk about education, a very that we can get to the place, either important piece is educating the buyers, through a settlement or a jury verdict, On other policy initiatives, Yost said he they are complicit in slavery.” that we have some money coming back would like to achieve “a million things.” from these entities who helped make His approach to fighting the opioid this mess. I want to use their money to help clean up the mess.” “You won’t hear me quote Barack epidemic is similar. Ongoing lawsuits Obama very often, but one thing he filed by DeWine during his time as AG said that I agree with is, ‘We ought were aimed at major opioid distributors On healthcare in general, Yost credits to be able to do more than one thing and manufacturers. Yost would like to fraud as a driver of escalating healthcare at a time,’” Yost said. “There is a huge see prevention efforts funded by these costs and his goal is to bring honesty reach in this office and during the four, companies. and price efficiency to the system, a maybe eight years, that I get to be here, priority that he has carried over from my intention is to work as hard as I “The fact of the matter is that the way his time as State Auditor. He states that possibly can to move Ohio forward.” they marketed and sold these products he will continue to target pharmacy

Q: What do you like to do in your free time? A: I love to write still, I never got that out of my system. My wife and I have begun to enjoy Q& cooking more, as we have a little more time to A do it with the children Q: How many instruments do you out of the house. I enjoy play and which is your favorite? conversations over dinner A: I guess it depends how you define with friends, I read a lot play. I honestly don’t know how many and of course, Buckeye because there are instruments, like the Football. dulcimer, that I play some, but probably I’m really lucky, all three of my kids interest in music quicker than making shouldn’t do it in public. But I like to live in Central Ohio, which means my them stay in and practice their piano play guitars and piano, keyboards and grandchildren are here as well. I have lesson on a sunny summer afternoon. bass guitar reasonably frequently. My three grandkids and we get to spend favorite depends on what kind of music time with them. My grandson is five, Q: What is your favorite lawyer/legal I play. I’m teaching him to play drums. movie or book?

Q: If you could be a member of any Q: Is everyone in your family musical? A: I struggle with this one because famous band, which would it be? I just love everything about the law. A: My whole family is musical, and “A Time to Kill,” John Grisham’s A: That’s tough. Probably Crosby, they’re better than I am. My wife’s a second published novel but first actual Stills, Nash & Young violist, she reads music does all that novel was a pretty good yarn. “Advice symphony stuff, my three children are & Consent” which has some pretty Q: Which instrument would you play all musicians and the grandchildren are prominent law in it, I read lots of books in the band? showing musical inclinations as well. lots of novels like that. A: Whatever they’d let me! Although, I learned with my kids to But, how do you pick between “My let them develop their musical tastes Cousin Vinny,” and “12 Angry Men” or at their own speed and to not force it. even “From the Hip” with Judd Nelson? There is nothing that will kill a kid’s “I want to object and be sustained!”

Visit OhioBar.org/DaveYost for our video interview and more from the Attorney General. OHIO LAWYER SPRING 2019 9 Lawyer Leaders Ohio's 133rd General Assembly

27% 22% 20% of the Senate members of the Ohio General of the House members are LAWYERS Assembly are LAWYERS are LAWYERS

The Ohio State Bar Association is a constant presence at the Ohio General Assembly and the Ohio Supreme Court, advocating for the profession, for access to justice and to advance rule of law. Lawyer legislators and other attorneys in public service are integral to these efforts and moving our priority legislation forward. Through our political action committee, as well as our public education resources and long-lasting relationships with Ohio lawyer legislators, the OSBA is committed to encouraging more lawyers to serve in public office.

Meet the lawyer legislators of Ohio’s 133rd General Assembly: Ohio Senate Lawyer-Legislators

Senator Rob McColley Senator Theresa Gavarone Senator William Coley II District 1 (R) District 3 (R) District 4 (R) Chair, Transportation, Vice-chair, Higher Education Chair, Government Oversight Commerce & Workforce Committee & Reform Committee Committee

I think an attribute all attorneys possess is a strong attention to detail and that is certainly an asset in the legislature. Understanding the effect a misplaced word or comma in a bill can have on the legislative process saves a lot of time and hassle, and is potentially the difference between the legislation getting to the Governor’s desk or dying in committee. -Senator Gavarone

OHIO LAWYER 10 SPRING 2019 Legislators must be generalists, I believe my legal training has greatly improved my ability because they deal with multiple to represent my district, especially on some of the complex subject matters. That is what many issues we consider regarding criminal justice reform. My of us do in our practices. I encourage experiences as an attorney have also helped me garner law firms to allow their lawyers to a firm understanding of topics outside of traditional legal participate in the General Assembly issues such as educating our children, new strategies to and other legislative work as public drive economic development, and the state’s complex service. -Senator Huffman budgeting process. -Senator Manning

Senator Matt Huffman Senator Nathan Manning Senator John Eklund District 12 (R) District 13 (R) District 18 (R) Majority floor leader Vice-chair, Judiciary Commttee Chair, Judiciary Committee

The two most useful skills I bring to the legislature as an attorney is working through conflict to reach a conclusion and understanding the language and impact of changes to the Ohio Revised Code. -Senator Dolan

Senator Larry Obhof Senator Matt Dolan Senator Sean O'Brien District 22 (R) District 24 (R) District 32 (D) President of the Senate Chair, Senate Minority whip Finance Committee

Having a legal background helps me understand how the laws we write will be interpreted by the courts. This allows me, perhaps better than other legislators, to draft laws that are more precise and that provide more clarity concerning their intent. -Senator O'Brien

OHIO LAWYER SPRING 2019 11 Lawyer Leaders

Ohio House of Representatives Lawyer-Legislators

Rep. Robert Cupp Rep. Michael Skindell Rep. Jeffrey Crossman Rep. Adam Miller Rep. Kristin Boggs District 4 (R) District 13 (D) District 15 (D) District 17 (D) District 18 (D) Co-chair, Finance Subcommitte on Ranking member, Ranking member, Financial Ranking member, Assistant minority leader Primary & Secondary Education, Finance Subcommittee on Institutions Committee Federalism Committee Former Ohio Supreme Court Justice Transportation

Every lawyer has the responsibility to preserve quality of justice. We honor past generations by ensuring our legal foundation is a pillar of our great nation. - Rep. Miller

Rep. Richard Brown Rep. David Leland Rep. Laura Lanese Rep. Erica Crawley Rep. William Seitz District 20 (D) District 22 (D) District 23 (R) District 26 (D) District 30 (R) Ranking member, Ranking member, Criminal Assistant majority whip Member, Finance Committee Majority floor leader Civil Justice Committee Justice Committee

As a practicing attorney for 41 years, my observation is that serving in the legislature is like being in a year-round settlement conference where the issues change daily. -Rep. Seitz

OHIO LAWYER 12 SPRING 2019 Being a public servant is very rewarding. I believe my background as a magistrate provides the temperament to consider all sides of legislative issues. - Rep. Galonski

Rep. Emilia Sykes Rep. Tavia Galonski Rep. Jim Butler Rep. Paula Hicks-Hudson Rep. Scott Oelsager District 34 (D) District 35 (D) District 41 (R) District 44 (D) District 48 (R) Minority leader Co-chair, Criminal Speaker pro tempore Assistant minority whip, Chair, Finance Committee Justice Subcommitte former OSBA board member on Sentencing Practicing business litigation has provided me with an understanding of the challenges My legal knowledge, especially the ability to that face Ohio’s businesses. I apply the same understand the legal implications of language, practice as a legislator to minimize costs for as well as understanding statutory interpretation taxpayers and create meaningful legislation has allowed me to better serve my constituents that will impact the future of our state. and the State of Ohio. - Rep. Oelsager -Rep. Butler

Rep. John Rogers Rep. Jamie Callender Rep. Gil Blair Rep. Diane Grendell Rep. Brett Hillyer District 60 (D) District 61 (R) District 63 (D) District 76 (R) District 98 (R) Ranking member, Chair, Public Utilities Member, Ag & Rural Co-Chair, Criminal Justice Vice-chair, Financial Ways & Means Committee Committee Development Committee Subcommittee on Sentencing, Institutions Committee and Insurance Committee Former judge

"Being a lawyer has helped me to pull "Virtues such as fairness, integrity and civility back on emotional responses to proposed and striving to consider alternative methods legislation and to follow the constraints of our of resolving disputes help us strive to make constitution. Further, the mediation process the dispute a dignified one." -Rep. Rogers in trial work helps in reaching compromise on legislation." - Rep. Hillyer

OHIO LAWYER SPRING 2019 13 Lawyer Leaders

STATE LEADERS

Mike DeWine Dave Yost Keith Faber 70th Governor of 51st Ohio Attorney 33rd Ohio Auditor the State of Ohio General of State

"A training in the law opens your mind and your approach to making sure that you’re inclusive, that you’re hearing alternative viewpoints, other ways of thinking, so that you avoid unintended consequences." - Ohio AG Dave Yost

SUPREME COURT JUSTICES

Chief Justice Maureen O'Connor Justice Sharon L. Kennedy Justice Judith L. French Justice Patrick F. Fischer 148th Justice 154th Justice 155th Justice 157th Justice

First female Ohio Chief Justice OSBA Past President

Justice R. Patrick DeWine Justice Michael P. Donnelly Justice Melody J. Stewart 158th Justice 160th Justice 161st Justice

First African-American woman elected to Ohio Supreme Court

OHIO LAWYER 14 SPRING 2019 Leadership Academy

2019 OSBA Leadership Academy

The Leadership Academy prepares lawyers for future opportunities as leaders in the association, the profession and their communities.

Congratulations to the class of 2019!

2019 Leadership Academy graduates pictured with OSBA 2018-19 President Robin Weaver (left) and CEO & Executive Director Mary Amos Augsburger (right).

Kelli Jo Amador Jeannine Hudson Phillip Sarnowski Dickie McCamey Attorneys at Law Green & Green Lawyers Collins, Roche, Utley & Garner, LLC

Christopher Ballard Harvey Hyman Sheena Sjostrand-Post City of Delaware Hyman & Hyman, Ltd. Hayes Law Offices, Inc.

Thaddeus Boggs Eric Johnson Sean Sobel Frost Brown Todd, LLC Sowald Sowald Anderson Hawley Sobel Wade & Mapley, LLC & Johnson Andrew Bowsher Devin Spencer Ohio Facilities Construction Michelle Lanham Taft Stettinius & Hollister LLP Commission The Lanham Law Firm, LLC Nathan Stuckey Emily Butler Samuel Marcellino The Stuckey Firm, LLC Brosius, Johnson &Griggs, LLC Barkan Meizlish, LLP Michelle Thompson Brian Cremeans Azure'd Metoyer Ulmer & Berne LLP McCown & Fisher, LPA Franklin County Court Of Common Pleas Jay Wampler Samuel Goodwater Hamilton County Prosecutor's Office Premier Legal Consultant Group Elizabeth Sams Law Office Of Jeffrey B. Sams, LLC

To learn more about the Leadership Academy visit OhioBar.org/LeadershipAcademy

OHIO LAWYER SPRING 2019 15 A Modest Proposal A MODEST PROPOSAL FOR HEARSAY EVIDENCE REFORM By J. Andrew Root

The evidence rule excluding hearsay that it deserves.” Really? What does and its myriad exceptions cause much that mean? Aren’t courts supposed confusion among lawyers and the to give all evidence the weight that general public.1 It is time for a change. it deserves? Isn’t evidence supposed Many of the hearsay exceptions are to be admitted or excluded? Why based upon outdated social science are courts admitting some “second or antiquated case law. In practice, class” evidence like hearsay and not though, especially in cases tried to other less reliable evidence? What it the court and not to a jury, courts means to me is that we don’t know routinely permit hearsay testimony how to rule, so we are letting it in and even when there is no exception in impliedly saying to the objecting party, the rule. Federal Rule 808, Residual with a wink and a nod, “I’m letting it Exceptions, permits the admission of in, but it doesn’t really look to be that hearsay evidence even when it does important a piece of evidence to me at not fall under a specific exception, this point, so don’t worry.” if the judge determines that it is trustworthy. Many, if not most, legal If the legal profession is justifiably professionals are confused by hearsay confused, imagine how confused the (myself included). Practitioners make general public is when they encounter numerous objections based upon a courtroom. alleged hearsay. Judges and magistrates are called upon to make immediate The proponents of hearsay reform are rulings on these hearsay objections. numerous. In 2014, Judge Richard To do so requires a comprehensive Posner of the Federal 7th Circuit knowledge of the rule against hearsay criticized the hearsay rules in a and its thirty Ohio exceptions, not concurring opinion in a criminal case to mention the hundreds of cases tried to a jury.2 He would like to see interpreting these rules. Few of us have the “Residual Exception swallow such knowledge. much of Rule 801 through 806 and thus many of the exclusions from The substantive complexity of the rules evidence…”3 The British changed and the need for immediate rulings their law to permit hearsay in civil result in what I call the “judicial proceedings. The Civil Evidence Act cop-out.” We just let it in. Our gut or of 1995 provides that “In all civil intuition tells us to. We don’t know proceedings evidence shall not be why, we just do. A common courtroom excluded on the grounds that it is colloquy illustrates how we justify hearsay.”4 Litigants must give advance letting the hearsay into evidence: notice to the other party of their intent Counsel objects based upon hearsay. to use hearsay, and the opponent may Opposing counsel makes some attack the credibility of the hearsay response and the court rules as follows: declarant as if the declarant were on “I’ll allow it and give it the weight the stand. The judge then determines the weight to give it.5

OHIO LAWYER 16 SPRING 2019 Many scholars have also criticized the evidence and the totality of About the Author hearsay rules, some calling for major the evidence presented. or minor reform, and some calling for the outright abolition of the rule The law’s justifiable concern with the against hearsay. The Harvard Law integrity of the trial is what gives Review called for the abolition of the us the foundation of the exclusion rule excluding hearsay in 1980.6 In of hearsay. Hearsay is excluded 1987, Professor Roger Park called for because we have concluded that it is a subject matter approach to hearsay not as reliable as direct testimony in reform, proposing different rules for court. Hearsay precludes a litigant civil and criminal cases. He called for from confronting the witness and permitting hearsay if it falls under an challenging her reliability. It also established exception, and permitting could lead to the admission of rumor Mr. Root is a magistrate with the all other hearsay if proper notice is and gossip. We should be concerned Montgomery County Common Pleas given to the opposing party, like what about this, especially in cases tried to Court, Domestic Relations Division. is done in Great Britain.7 a jury. Juries arguably have less ability Prior to that he had a private practice to sift through hearsay and weigh in Xenia from 1993 to 2017. To be fair, many judges and scholars its credibility, although I personally oppose wholesale or partial hearsay disagree with this view. I think juries reform. Much of the scholarship is are equipped to make such distinctions Endnotes justifiably concerned with criminal – they do it every day in their personal 1Ohio Evid.R. 801-807; jury trials, with all that is at stake and and professional lives. But my Fed.R.Evid. 801-807. with the constitutional protections proposal, limited to bench trials in afforded to defendants. As important civil cases, is more modest in scope. 2U.S. v. Boyce, 742 F.3 792 (7th Cir. as criminal trials are, the vast majority 2014). of the public that encounters a We should also be concerned with 3 courtroom does so as a civil litigant unreliable evidence getting before Id. at 802. in family law, municipal, and probate a judge or magistrate. We are, after 4 Mark S. Brodin, The British courts. This is especially true for self- all, human beings, subject to being Experience with Hearsay Reform: A represented litigants. Something needs influenced by anything we hear in Cautionary Tale, 84 Fordham L. to be done to correct what I see as a our courtrooms. But judges and Rev. 1417, 1420 (2016). major flaw in evidence law. Correcting magistrates are equipped with skills to 5 this problem will benefit the legal discern good evidence from bad. We Brodin at 1420-1421. profession and the public we serve. do it now. After all, we “hear” hearsay 6 Note, The Theoretical Foundation of evidence that we exclude, we just don’t the Hearsay Rule, 93 Harv. L. Rev. Therefore, I wish to put forth a modest rely upon it in our decisions. We are 1786 (1980). (in scope) proposal for hearsay reform capable of giving little or no weight 7 in Ohio. My proposal is to admit all to hearsay evidence that is not as Roger Park, A Subject Matter hearsay in civil proceedings tried to trustworthy as other evidence. Under Approach to Hearsay Reform, 86 the court. My proposal is to add an my proposed rule, we can still exclude Mich. L. Rev. 51 (1987). Evidence Rule 808 that would read as hearsay (or any other evidence) if we follows: determine that it is not trustworthy. (A) In all civil proceedings Admitting all hearsay would not make tried to the court, the court our jobs harder. It would, I think, may admit any hearsay if make it easier, without compromising the court determines that the integrity of the trial. the hearsay is relevant under Article IV of these rules. Let the hearsay in unless it is unreliable, but discount it if it is less (B) The court shall give such reliable than other evidence. Hearsay admitted hearsay evidence reform’s time has come. Permitting the appropriate weight it it in civil trials to the court is a good deserves based upon the place to start. trustworthiness of the hearsay

OHIO LAWYER SPRING 2019 17 Access to Justice Ohio Driver’s License Reinstatement Fee Amnesty Initiative OSBA Members Volunteer in Perry County

This spring, the Ohio State Bar Association (OSBA) of the OSBA Young Lawyers Section travelled from the travelled to New Lexington, Ohio for the Perry County across the state to participate in the pro bono work and the Driver’s License Reinstatement Clinic. The first of these Ohio Legal Assistance Foundation and Southeastern clinics to take place in a rural Ohio county, the program Ohio Legal Services were on site to facilitate as well as was part of the Reinstatement Fee Amnesty Initiative, a provide training and insurance for participating attorneys. six-month pilot program created by House Bill 336 in the The Ohio Bureau of Motor Vehicles and the Perry County 132nd General Assembly. Department of Job and Family Services were also on site. The Perry County effort was a true collaboration. Judge Approximately 85 clients pre-registered to see about eight Dean Wilson of the Perry County Municipal Court and attorney volunteers. District 9 Representative to the OSBA Board of Governors, Here’s what participants had to say about the experience: provided his courthouse as a venue for the clinic. Members

“We don’t have the same media market “I think it's very important that attorneys “We tried to eliminate all the excuses that Columbus has, we don’t have a local volunteer their time, especially in a rural that people have for not doing pro tv station or a local radio station. This area like Perry County. Oftentimes, bono. People think that they’re not has all been word of mouth. There is a folks have challenges and one of them is going to know the subject matter, real opportunity in these rural areas for financial, and so even though they may be but Legal Aid has provided a robust attorneys to come in and be part of the eligible to have a driver's license, or there CLE and training on this, so that is community.” may be a few simple steps they can take to eliminated. People think they can’t do become a licensed driver, they don’t have it because they don’t have malpractice Judge Dean Wilson that ability to hire an attorney. A program insurance, but OLAF provides Perry County Municipal Court like this takes down that barrier, allows malpractice insurance so we eliminated OSBA Board of Governors District 9 people to take these simple steps to get that excuse. We all drove down Representative licensed, and that helps the community as together. We’re really trying to make a whole.” it as easy as possible so people could Andrew Joseph participate as much as possible.” Partner, Gottlieb, Johnston, Beam & Dal Ponte, PLL Jane Gleaves Associate Attorney, Kegler Brown Hill Ritter OSBA Young Lawyers Section Executive Committee Member

OHIO LAWYER 18 SPRING 2019 Get Involved! Visit OhioBar.org/LicenseClinics to see a list of volunteer opportunities at upcoming clinics around the state and to see video of the OSBA’s day at the Perry County License Reinstatement Clinic.

“Legal Aid cares about this because “It gets back to this question that we “I think pro bono is something that’s we see lack of transportation as a think about a lot which is, what is necessary in our profession. There is poverty issue, especially in rural a lawyer’s obligation to help people much too large of an access to justice gap counties. So we’re here facilitating, who can’t pay legal fees? I think that and there is a great need for people who organizing volunteers, supporting every lawyer has an obligation to do can’t afford our services. At a clinic like attorneys with training that they his or her part to try and provide legal this, you’re getting a lot of hands-on need if they aren’t as familiar help for people who can’t pay fees. It’s instruction. And so you’re learning with traffic suspension issues. We in the preamble of our ethical code. new skills that you can then apply in think it’s a great opportunity for Whether it’s this, or something else pro your regular private practice for paying attorneys to get involved, because bono, or giving money to legal aid, I clients. So to me its double benefit: just in the few hours that they think it’s all of our responsibilities.” We get to help people who really need may be here, they can really make Bill Dowling it, and we get to better ourselves as a big impact on clients’ lives.” Of Counsel, Buckingham, attorneys.” Ann Roche Doolittle & Burroughs Christopher Brown OLAF Justice for All Fellow Past Chair, OSBA Access to Deputy Law Director for the City Staff Attorney for SEOLS Justice Committee of Mansfield Chair of OSBA Young Lawyers Section Did You Know? The OSBA Council of Delegates recently adopted a proposal to extend and make the amnesty initiative permanent. In the meantime, the OSBA advocacy team is working closely with the Ohio Senate on an amendment to the state budget bill that, if passed, will extend the pilot program through the end of the year.

OHIO LAWYER SPRING 2019 19 Ohio's Data Protection Act

Ohio’s Data Protection Act An affirmative defense to liability stemming from data breach incidents

By David J. Oberly

Yahoo. Equifax. LinkedIn. Target. Aside from being some The Threat: Today’s Rising Risk of Data Breach Incidents of the world's largest corporate entities, these companies are As is common knowledge today, business entities are prime just a few of the more noteworthy businesses that have fallen targets, and victims, of computer-network penetration and victim to data breach incidents in recent years. Companies data theft. In addition to hackers, business entities also large and small today face the tough reality that it is no longer face significant data breach threats originating from inside a matter of "if," but rather "when," a company's network will the organization. Importantly, data breach incidents have be breached. Over the years, lawmakers have struggled with proliferated astronomically in recent years both in frequency devising effective methods for enhancing the cybersecurity and severity. More often than not, the financial consequences of private organizations without mandating one-size-fits-all of a data breach are catastrophic. Furthermore, in addition to requirements that undercut effective data security management. the economic loss caused by a breach, the reputational hit that Last November, Senate Bill 220, also known as the Ohio Data a business customarily takes in the wake of a data theft incident Protection Act (DPA), was enacted into law in the state of can have dire consequences on the long-term viability of the Ohio – which represents the first law that accomplishes just organization. In particular, many businesses who maintain that goal. Importantly, the DPA now provides Ohio businesses vital sensitive and proprietary company data may choose to with an affirmative defense to some forms of data breach claims steer clear of utilizing a company that has demonstrated an where the business has in place reasonable security measures at inability to properly safeguard client information, resulting in the time of the breach. In enacting the DPA, Ohio became the the exodus of current clients, as well as significant lost business first state in the nation to implement a law that affords a data opportunities from potential clients. breach safe harbor for business entities.

OHIO LAWYER 20 SPRING 2019 The Solution: Ohio’s Data Protection The Act also requires the entity’s Critically, however, simply having Act cybersecurity program to “reasonably a written security program drafted Ohio enacted the Data Protection conform” to one of the following and on file will not suffice to utilize Act, which provides an incentive- frameworks: the affirmative defense in the wake based program for businesses to • National Institute of Standards of a data breach incident. Rather, strengthen their cybersecurity practices. and Technology’s (NIST) companies must also have maintained Specifically, the DPA provides Cybersecurity Framework; and complied with their programs at the time of a breach to be entitled to the companies with a safe harbor against • NIST Special Publication 800-171 data breach claims sounding in tort shield provided by the safe harbor. With or Special Publications 800-53 and that said, the DPA provides no further (such as negligence) brought under 800-53a; the laws or in the courts of Ohio for discussion or explanation as to how companies that implement, maintain • Federal Risk and Authorization a company can successfully establish and comply with one of several Management Program’s that it has implemented sufficient industry-recognized cybersecurity (FedRAMP) Security Assessment cybersecurity measures to make itself programs. Significantly, contained Framework; eligible for the affirmative defense. Moreover, the act fails to provide any in the text of the DPA is an express • Center for Internet Security’s additional information regarding how provision which provides that the Critical Security Controls for a company can successfully establish Act does not “create a minimum Effective Cyber Defense; or cybersecurity standard that must be that its cybersecurity plan “reasonably • International Organization achieved” or “impose liability upon conforms” with one of the above for Standardization (ISO)/ businesses that do not obtain or frameworks. International Electrotechnical maintain practices in compliance with Commission’s (IEC) 27000 the act.” Instead, the DPA endeavors Family – Information Security Takeaways “to be an incentive and to encourage Management Systems Standards. businesses to achieve a higher level of The DPA represents the first law in cybersecurity through voluntary action.” the country to provide incentives to businesses to implement certain For businesses that accept payment cybersecurity controls through the cards, in order to qualify for the In order to qualify for the safe harbor, utilization of an affirmative defense to affirmative defense, these organizations’ an entity must implement a written liability in the wake of a data breach. cybersecurity programs must comply cybersecurity program designed to: (1) With that said, some states—such with the Payment Card Industry’s protect the security and confidentiality as New York—do require certain Data Security Standards (PCI-DSS), of personal information; (2) protect organizations to satisfy specific in addition to one of the generally against anticipated threats or hazards cybersecurity compliance standards, applicable frameworks identified above. to the security or integrity of personal without affording such companies an Similarly, companies subject to certain information; and (3) protect against express safe harbor as an incentive to state or federally mandated sector- unauthorized access to and acquisition adopt such standards. specific laws may rely on the affirmative of personal information that is likely to defense if—in addition to conforming result in a material risk of identity theft with one of the above generally or fraud. Ohio’s cybersecurity law is a welcome applicable frameworks—they can opening for organizations of all shapes establish that their plan conforms to any and sizes who seek to limit their The DPA provides that the scale and additional security requirements, such liability in the wake of a data breach. scope of the company’s cybersecurity as the security requirements identified Importantly, the DPA provides clear program should be consummate with in the Health Insurance Portability steps that business entities must take the following factors: (1) the company’s and Accountability Act (HIPAA), in order to qualify for the safe harbor size and complexity; (2) the nature Title V of the Gramm-Leach-Bliley under the act. But qualification for this and scope of its activities; (3) the Act (GLBA), the Federal Information new defense to liability is not automatic. sensitivity of the personal information Security Modernization Act (FISMA), Rather, a company will bear the burden maintained by the company; (4) the or the Health Information Technology of establishing that its program satisfies cost and availability of tools to improve for Economic and Clinical Health Act all of the requirements under the law. information security; and (5) the (HITECH). resources available to the company.

OHIO LAWYER SPRING 2019 21 Ohio's Data Protection Act

As such, as the number and severity of to assert the DPA’s stringent defense assists clients in achieving compliance data breaches continues to climb today to liability in the event they fall victim with today’s rapidly-evolving data with no foreseeable end in sight, now of a data breach incident and find privacy laws, including the California more than ever companies—including themselves on the receiving end of a Consumer Privacy Act (CCPA) and Ohio law firms—must be proactive in subsequent civil action stemming from the European Union’s General Data implementing effective safeguards to the breach. Protection Regulation (GDPR). He shield sensitive company information About the Author also counsels and advises clients on from malicious hackers or other a wide range of other data privacy unauthorized access. At the same time, matters, including cybersecurity risk companies should ensure that their management, data collection and cybersecurity programs comport with utilization, consumer and employment the requirements of the DPA, as doing privacy, incident response planning so will allow companies to invoke the and mitigation strategies, and vendor act’s safe harbor to defeat certain state management. David also counsels and law data breach tort claims alleging represents clients in investigations that the organization’s data security pertaining to data privacy and data measures resulted in a data breach breach incidents, including postincident incident. Through the implementation response and remediation, as well as of a robust cybersecurity risk the defense of regulatory enforcement management program, companies and David J. Oberly is an associate attorney matters, class action litigation, and law firms can effectively minimize the in the Cincinnati office of Blank Rome other disputes relating to data handling risk of falling victim to a catastrophic LLP, where he focuses his practice on and data breach incidents. He can be data breach, while at the same time cybersecurity and data privacy law. As reached at [email protected]. putting themselves in the best position part of his practice, David counsels and

SECURE YOUR CLIENT’S FINANCIAL FUTURE • Agreement Language & QDROs

drafted by an ERISA Attorney • Calculation of the Marital Portion

of Pension & 401(k) Plans • Litigation Support & Expert Testimony Their work is top notch and they are “ (844) 721-6500 extremely responsive and always qdrogroup.com eager to discuss complex issues and provide straight-forward and expert answers and advice. Carl Murway, Taft Stettinius & Hollister Cleveland, OH Statehouse Connection What’s Buried in the Budget Bill?

As a result, unless there is a successful preferential to put policies that are single-subject challenge in the Ohio combative towards local government SCOTT Supreme Court, the operating budget action in the budget because when local of Ohio will continue to contain governments’ top priority - funding - is LUNDREGAN hundreds of significant policy changes on the line, they are not likely to take that impact Ohioans in countless ways. staunch positions on policy changes. Scott Lundregan is The proliferation of policy changes in What I have coined as this year’s the OSBA's Director of the budget can also be seen by taking a “Dos Equis Most Interesting Budget Member Engagement look at some of the categories that the Provision,” the prohibition against and Legislative Counsel policies fall under and the reasons they anyone enforcing the legal rights of are included in HB 166. an ecosystem, is an excellent example of this type of policy change. This provision is directly in response to the Step right up, come one come all! Don’t First, there are policy changes that are City of Toledo approving a charter miss the biennial budget bill in all its vote-gathering in nature. These tend to amendment that creates the Lake Erie glory! There is something for everybody be directly from legislation that came up Bill of Rights, stating that Toledo in the Ohio state operating budget. short in the last General Assembly. For residents have the legal right to protect example, the prohibition against bond Lake Eire. While legal battles over this issues in August special elections, except amendment rage on in the courts, the It is no secret on Cap Square that, in in the case of a school district declaring state has taken this fight with Toledo to addition to outlining the state’s $68.5 a fiscal emergency, is directly from HB the budget bill. billion two-year budget blueprint, HB 342 of the 132nd General Assembly. 166 also contains an immense amount of policy changes that have little or The vast number of policy changes that nothing to do with spending our hard- Second, there are policy changes that are considered every two years in the earned tax dollars. are deliberately “hidden” in the budget state operating budget makes it very because, on their own, they may raise a important that we stay on top of what SECURE YOUR CLIENT’S few eyebrows and generate blowback. the state is considering. Your advocacy The budget tends to contain more and See the provision that allows same-party team is here to make sure that the more of these policy changes as the members of a standing committee of changes do not negatively impact the FINANCIAL years go on for several reasons, and this the General Assembly to meet without practice of law or any particular practice FUTURE list is not exhaustive. violating open meetings laws. area. First, there’s the state appropriation Third, there are policy changes that may From the OSBA’s perspective, we are

• Agreement Language & QDROs limit and a finite amount of not make sense as a stand-alone bill, pleased with this budget’s increased or the change may be urgently needed, drafted by an ERISA Attorney discretionary spending. This means funding for indigent defense. We also that gaining legislative support for a so advocacy groups try to get their worked hard against the expansion of • Calculation of the Marital Portion standalone bill with appropriations is legislative change in to make sure their the sales tax to attorney services and

virtually impossible nowadays. Second, provision is passed into law in a timely of Pension & 401(k) Plans were successful. But, in our experience term limits and an increasing range of fashion (The budget must be in place by and understanding of the budget • Litigation Support & Expert Testimony policy changes make passing a bill in a July 1, 2019). A good example of this is process, we’ll always remain on high given legislative term very difficult. (In the provision in the budget clarifying alert for concerning policy changes. “ a general assembly only around 15% of that accountants cannot be disciplined the bills introduced actually become for offering accounting services to If you see anything concerning to your law.) Finally, because the executive marijuana licensees. Their work is top notch and they are practice area, don’t delay, call your (844) 721-6500 branch “introduces” the budget, extremely responsive and always legislative advocates today! qdrogroup.com agencies tend to view the operating Finally, there are policy changes that eager to discuss complex issues and budget as their opportunity to make are strategically placed within a budget provide straight-forward and expert substantive policy changes. bill. For instance, it is often seen as answers and advice. View the state budget bill by visiting Legislature.Ohio.Gov and searching “HB 166.” And keep an eye on OSBA Weekly Carl Murway, Taft Stettinius & Hollister Legislative Reports every Thursday for more on our presence at the Statehouse. Cleveland, OH OHIO LAWYER SPRING 2019 23 Practice Tip

Mediating the Sexual Harassment Case

By Michael W. Hawkins Dinsmore & Shohl LLP

As a result of the #MeToo movement, the facts and the circumstances under Because most sexual harassment many new laws, regulations, and which the mediation should take place. mediations do not involve face-to-face workplace policies regarding sexual If a minor is involved there may be opening sessions with the accused and harassment have recently been enacted. parents, school officials, legal guardians accuser, it is key that the mediator hold Consequently, we’ve seen an increased or others who must participate. Court independent caucuses in order to assist number of claims involving harassment. approval of any settlement may also be the parties in developing a framework a consideration. for productive dialogue. Due to the sensitive nature of these claims, some courts and the parties If the case does not involve a minor, The attorney of the accuser should involved may favor mediation. This can it may be important to hold a face-to- have a realistic understanding of the be especially true with claimants who face session or for a representative of law. In many cases, the facts being are minors or victims of prior abuse. an employer to hear directly from the alleged may describe inappropriate But mediating these claims requires a victim of the harassment. However, a behavior, but not necessarily establish different approach. joint session between the accuser and sexual harassment under the law. The the accused typically does not occur. elements of objectivity and legitimacy become highly relevant in resolving For the parties involved, it’s important these claims. Similarly, counsel for to select a mediator who has experience After an agreement on process, those the accused and the employer need dealing with claims of sexual involved must locate a neutral setting to understand the implications of the harassment and an understanding for the mediation – usually this is the claim, including the possible outcomes of the law. For the mediator, it is office of the mediator. Depending if a resolution cannot be reached. important to take a more empathetic on the complexity of the claim, the and reflective approach. mediation process can take several hours and in some instances, especially Once the mediation process begins and private sessions are in motion, the Once selected, the mediator should those involving multiple claimants, mediation could take up to several days. parties, their counsel and the mediator have early discussions with counsel on must evaluate the strengths, weaknesses

OHIO LAWYER 24 SPRING 2019 and practical realities of finding a • Costs of counseling After all of the effort and expense resolution. In many sexual harassment • Donations to harassment support of mediation, there should be no settlements, parties do not simply settle organizations misunderstanding of forms, terms on the basis of a monetary payment. and the fact that the matter is, in fact, Therefore, brainstorming a broader • Apologies settled. solution is essential. • Establishing alternative working arrangements or a reporting About the Author A variety of settlement options hierarchy other than monetary payment exist, including: Confidentiality is also a key • Development of a policy against consideration in settlements. Some harassment and training of states do not allow confidentiality in employees settling such claims and, under certain • Broader investigation of claims tax provisions, if the parties enter into a confidentiality clause in a sexual • Discipline or termination if the harassment case, the employer may not actual harasser(s) engaged in be able to deduct the payment and the violative conduct accused may have to treat it as income. • Reinstatement if the claimant Mike Hawkins is a labor & has quit (constructive discharge) These facts make it essential for all employment partner with Dinsmore & because of the harassment involved parties to be aware of the Shohl LLP and mediator and arbitrator • Implementation of a complaint implications of confidentiality and with the firm’s ADR Center. procedure obtain tax advice if they have questions. • Actions to prevent the conduct In any mediation, the parties should from occurring to others not leave without a signed agreement or a settlement agreement term sheet.

OHIO LAWYER SPRING 2019 25 Foundation News

Welcome to the Ohio State Bar Foundation’s 2019 Fellows Class

The Ohio State Bar Foundation is The 2019 Fellows Class was inducted law-related volunteer projects and proud to welcome a brand-new class during the annual Fellows Induction directly contribute to the Foundation’s of Fellows this year. An elite group of Ceremony on June 11 at the Thomas grant-making efforts. Last year, OSBF attorneys, the OSBF Fellows represent J. Moyer Ohio Judicial Center. OSBF awarded more than $700,000 in grants the best of the profession. They go President Rob Ware and Chief Justice to organizations across the state who above and beyond to give back to their Maureen O’Connor presided over the work day in and day out to improve the communities with their time and program and officially welcomed the legal system. talents to work toward an Ohio where new class. To learn more about the Ohio State Bar everyone has access to and understands OSBF Fellows are given the Foundation and the Fellows Program, our justice system. opportunity to work on a number of visit OSBF.org. 2019 FELLOWS CLASS

David Stephan Hon. Carla J. Holly Keri Lynne Bryan C. Sara Alexander Babik Baldwin Coats Collin Conaway Cooperrider Columbus, OH North Canton, OH Youngstown, OH Columbus, OH Columbus, OH Cambridge, OH Cincinnati, OH

Shannon E. Robert E. Charles Megan Matthew Stacy Don W. Dawes DeRose II Elsea Greulich Griffith Hannan Humphrey Jr. Columbus, OH Columbus, OH Lancaster, OH Columbus, OH Mount Gilead, OH Columbus, OH Kensington, OH

Harvey D. Amy Andrew J. Magistrate Kathleen Jacob H. Ebonie Michelle Gregg Hyman Ikerd King Lenski Levine Martin Marx Paulding, OH Celina, OH Delaware, OH Dayton, OH Columbus, OH Columbus, OH Fairfield, OH

OHIO LAWYER 26 SPRING 2019 Dan Adam S. Victor H. Gina Rachel Eli T. Maureen E. Moore Nightingale Perez Piacentino Sabo Sperry Stoneman Cincinnati, OH Toledo, OH Tiffin, OH Columbus, OH Columbus, OH Dayton, OH Carrollton, OH CONNECT WITH OSBF

Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation Instagram: instagram.com/OhioStateBarFoundation Sunni Hon. Dean L. Sugimoto-DiNicola Wilson Hilliard, OH New Lexington, OH

HONOR. REMEMBER. CELEBRATE.

Honor the exceptional, celebrate an occasion, or recognize the significant people in your life with a charitable gift to the OSBF. Tribute gifts are an easy way for you to support OSBF grantmaking initiatives and ensure special colleagues, friends, and family members receive the statewide recognition they deserve. To dedicate your gift, call (614) 487-4477 or visit OSBF.org .

WE HONOR

IN HONOR OF DONOR

William G. Fowler Ret. Hon. Neal Bronson and Barbara J. Bronson WE REMEMBER William G. Fowler Michael E. Foley William H. Kaufman William G. Fowler DONOR John D. Smith IN MEMORY OF William G. Fowler Robin E. Harvey Harold G. Korbee Bruce O. Baumgartner Jan M. Frankel Frederick Hunker Mark K. McCown John T. Brown Hon. David Hejmanowski Ronald W. Dougherty Carol Seubert Marx Carole S. Dougherty Reginald S. Jackson, Jr. Alfred E. Schrader Hon. James D. Jensen James R. Graves Reginald S. Jackson, Jr. Carmen V. Roberto David C. Comstock Gregory Hejmanowski Hon. R. Scott Krichbaum John D. Holschuh, Jr. The Honorable John D. Holschuh, Sr. Martha A. Rose Carol Seubert Marx James W. Pry II Kathleen Allmon Stoneman E. Richard Hottenroth Carol Seubert Marx Carmen V. Roberto Mark K. McCown Adam Holland Jackson David H. McCown Joseph W. Shea III Adam Holland Jackson Angela A. Chong Oberlin Street Law John S. Stith Pamela Boratyn Adam Holland Jackson Ohio Center for Law-Related Education S. Michael Miller John S. Stith James Kura Ohio State Bar Foundation Staff Robert C. Maynard Joseph W. Shea III John B. Robertson Denny L. Ramey Kraig E. Noble Martin E. Mohler Eldon E. Montague Denny L. Ramey Randall T. Shepard & J. Richard Emens II Chief Justice Thomas J. Moyer Frank A. Ray Amy W. MacDonell Thomas P. Moushey Ronald L. Rimelspach Louis E. Tracy Martin E. Mohler Estelle M. Tracy William K. Weisenberg Louis E. Tracy Hon. John B. Tracy William K. Weisenberg Carol Seubert Marx

Gifts have been made between November 17, 2018 - May 6, 2019. 2019 CLE Calendar

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July 26 August 13 August 23 Nuts & Bolts of Wills & Trusts VR 37 Conversations: The Nixon / Dean How to Do Fast Effective and Free Columbus, Cleveland, Fairfield, Exchanges that Changed History Internet Research VR Perrysburg Cleveland Columbus, Cleveland, Fairfield July 31 August 14 23 Mistakes Experienced Contract 37 Conversations: The Nixon / Dean Drafters Usually Make VR Exchanges that Changed History Columbus, Cleveland, Fairfield Columbus, Perrysburg, Akron, Webcast August 2 August 15 How to Better Manage Your Workload 37 Conversations: The Nixon / Dean and Your Time Exchanges that Changed History Columbus, Cleveland, Fairfield, Webcast Fairfield

Did you join the Ohio State Bar Association’s Membership VP+ Plan? If so, you’re eligible for both free and discounted coaching services to lead and grow your practice.

This includes a no-cost, annual Practice Coaching Call™ – a 30-minute solution-focused, confi dential call with a Certifi ed Atticus Practice Advisor. Visit AtticusAdvantage.com/OSBA to request your call.

“Atticus helped me take control of my practice and changed my life. They helped me to focus my efforts and implement best practices. My practice has tripled in size since I began working with Atticus. I can’t recommend them enough.” Timothy J. Moore, Bixler | Moore, Canton, OH

888-644-0022OHIO LAWYER [email protected] 28 SPRING 2019 Legal Leaders

Akron In Memoriam

John “Jack” P. Sahl has been awarded the Eugene R. Weir 2018 Award for Ethics and Professionalism established by the Samuel Segel Pearlman; 75, Cleveland Heights, Feb. 6, 2018 OSBA Board of Governors in memory of their colleague. Pamela Gayle Wynsen; 63, Columbus, Feb. 24, 2018 Cincinnati Bernard C. Fox Jr.; 69; Amelia, March 5, 2018 Thomas A. Swope,65; Mentor, May 30, 2018 Dimity V. Orlet has been named Executive Director of Pro Did you join the Ohio State Bar Association’s Membership VP+ Plan? If so, you’re Roderick H. Willcox; 84, Columbus, May 30, 2018 eligible for both free and discounted coaching services to lead and grow your practice. Seniors, the Cincinnati-based nonprofit law firm serving Ohio’s seniors. Robert I. Doggett; 85, Cincinnati, June 12, 2018 Verna L. Williams has been named Dean of the University of Gregory T. Holtz; 66, Estero, FL, June 30, 2018 Cincinnati College of Law. She is the first African American Allen Schulman; 71, Canton, Nov. 16, 2018 to lead UC’s historic College of Law. Forrest F. Beery; 97, Rocky Fork Lake, November 18, 2018 Columbus Philip Wayne Varner; 60, Toledo, Dec. 10, 2018 Louis Myers; 76, Louisville, Dec. 17, 2018 Heather Sowald is the recipient of the OSBA Women in the Donald F. Brosius; 64, Bexley, Dec. 21, 2018 Profession Section Nettie Cronise Lutes Award for her high Robert B. Dixon; 90, Toledo, Dec. 25, 2018 level of professionalism and opening doors for other women and girls. James Brebberman; 63, Toledo, Dec. 26, 2018 Alan Ira Shorr; 74, Aurora, Dec. 29, 2018 Dayton Hon. Annette Garner Butler; 74, Cleveland, Dec. 31, 2018 Robert Curry, a partner in Thompson Hine’s real estate Gene E. Shook Sr.; 92, Cleveland, Dec. 31, 2018 This includes a no-cost, annual Practice Coaching Call™ – a 30-minute practice group, has been awarded the Ohio Legal Assistance solution-focused, confi dential call with a Certifi ed Atticus Practice Advisor. Foundation Presidential Award for Pro Bono Service for his 2019 outstanding efforts to improve access to justice in Ohio. Visit AtticusAdvantage.com/OSBA to request your call. Jack R. Baker; 74, North Canton, Jan. 20, 2019 Elliot S. Azoff; 72, Cleveland, Jan. 26, 2019 “Atticus helped me take control of my practice and changed my life. They helped me to focus my efforts and implement OSBA Legal Leaders is limited to awards and civic duties. The news listed is edited from press releases submitted to the Leslie B. Swinford Jr.; 73, Columbus, Jan. 26, 2019 best practices. My practice has tripled in size since I began working with Atticus. I can’t recommend them enough.” OSBA. To submit an announcement for consideration in Legal John Bernard Robertson; 82, Lyndhurst, Feb. 14, 2019 Timothy J. Moore, Bixler | Moore, Canton, OH Leaders, please email [email protected].

888-644-0022 [email protected] OHIO LAWYER SPRING 2019 29 The Movement Join the movement!    INNOVATE. LEAD. EDUCATE.

TheHuman Rights Campaign released Ohio Supreme Twenty-four Ohio county law libraries have its 2019 list of companies with pro- Court Chief Justice joined together to encourage practicing LGBTQ policies. Four Ohio-based law Maureen O’Connor attorneys to visit every county law library firms received perfect scores in the annual has been awarded the in the counties where they practice. Take Corporate Equality Index: Vorys Sater Ohio Bar Medal, a stroll along the Ohio County Law Seymour and Pease LLP, Frost Brown the OSBA’s highest Library Trail from April 8 to October Todd, Squire Patton Boggs and Thompson honor. 22 to win a fabulous prize. If you visit the Hine LLP. most participating county law libraries on the trail, you will win a prize made up of a The Ohio Bar Medal is awarded to those unique donation from each library. The Human Rights Campaign Foundation who have given unselfishly of their time and launched its Corporate Equality Index in talent by taking prominent leadership roles 2002 and compiles scores based on non- on the bench and in the organized bar and Visit OhioBar.org/LawLibraryTrail to discrimination policies, equitable benefits who have worked quietly to earn the deep view rules and additional information. for LGBTQ workers and their families, admiration and respect of their colleagues and support for an inclusive culture and their community. and corporate social responsibility. The nonprofit advocacy group bases the score on survey responses and publicly available O’Connor is Ohio’s 10th Chief Justice information. and the first woman in the state’s history to hold this position. Her career in public service and the law spans three decades There were only 572 businesses nationwide and includes service as a private lawyer, that received 100 percent on the Index. The magistrate, common pleas court judge, Ohio State Bar Association would like to prosecutor, Ohio lieutenant governor and take this opportunity to congratulate these Supreme Court justice. Her election to four firms for their commitment to diversity the state’s highest court in 2002 gave the and inclusion within their companies and institution its first female majority. the legal profession.

OHIO LAWYER 30 SPRING 2019 Here’s how the OSBA and our members help improve and advance the legal profession.    ADVOCATE. COLLABORATE. VOLUNTEER.

On Law Day, This Spring, Akron Municipal Court TheSummit County Court Appointed Wednesday, Judge Ron Cable’s Restore Individual Special Advocates for Children Program May 1, 2019, the Self-Empowerment Program (RISE), (CASA) is the recipient of an American Ohio State Bar in partnership with the Ohio Supreme Bar Endowment (ABE) 2019 Opportunity Association (OSBA) Court, hosted a free training entitled Grant. presented the 2019 “Responding to Human Trafficking: One Lawyer-Legislator Case At-a-Time.” The one-day event The Summit County CASA program Distinguished was facilitated by the Center for Court belongs to a network of 951 community- Service Award to Senator John Eklund Innovation. based programs that recruit, train and and Representative Jim Butler. support citizen-volunteers to advocate for The training examined pathways into the best interests of abused and neglected The Lawyer- prostitution and human trafficking, children in courtrooms and communities. Legislator Award explored reasons victims stay with their was established exploiters and identified red flags and other The ABE Opportunity Grants provide by the OSBA in indicators. It was open to judicial officers, direct support for boots-on-the-ground 2014 to recognize prosecutors, attorneys, law enforcement, projects that focus on enhancing access to Ohio lawyers human trafficking advocates, justice legal assistance in underserved communities, who also provide partners, community partners and members improving the administration of justice and exceptional service of the community. increasing civic engagement by those who as Ohio legislators. The awards were are often disenfranchised. presented during a special legislative It was made possible by a Violence reception hosted by the OSBA and the “The entire ABE Board of Directors has Ohio Judicial Conference at the Ohio Against Women Act grant from the Ohio Department of Public Safety to been pleased and encouraged by how a Statehouse, part of a full slate of Law Day modest Opportunity Grant can mean so activities. the Ohio Supreme Court. The grant supports technical assistance to local courts much to a grassroots organization and interested in enhancing their response to produce so much impact,” said ABE domestic violence, sexual violence, dating President Stephen N. Zack. “With such a violence and stalking. huge unmet need for legal services, we are so proud to be partnering with these wonderful organizations to address the critical needs of “Human trafficking is a major issue across their communities.” the country and we are proud to partner with the Ohio Supreme Court to provide this educational opportunity at no cost to attendees,” said Akron Municipal Court Judge Ron Cable who leads the RISE Program.

OHIO LAWYER SPRING 2019 31 Member Spotlight

What made you take an interest to maybe settle a case. It’s thinking in the law? strategically and finding a creative solution. In college I was an economics major and I also had an interest in political science. What advice would you offer to I ended up taking a law and economics young attorneys? class which was a really fascinating class that talked about the intersection of the Think a lot about what drives you and two topics and I liked how they merged what you think you can do on a daily together. basis as a lawyer. Law school does a good job of training you how to think, I knew nothing about the law. I don’t it’s a little harder for it to teach you have any family who are lawyers and I about the different practice areas and never really thought that law was a field the daily work of being a lawyer. It’s I’d go into. I started thinking about it your job to try and figure out where you in college and decided that I should try fit in. I always tell students to stop think to get some jobs that would show me about where your personality best fits what it is to be a lawyer. So I interned at and think about what you’d actually be the ACLU in New York for a semester doing on a daily basis as a lawyer. It’s ALI HAQUE when I was in college and then I got a not what you see in tv or movies, get to Partner, Bricker & Eckler LLP job as a legal assistant for about three know practicing lawyers and learn what years and learned a lot about what it is they do. What’s going to allow you to Immediate Past-President, to be a lawyer on a day-in, day-out basis, get up every day excited to go to work? what it means to be in a service-based Asian Pacific American Bar What do you see as the role of Association of Central Ohio industry, how to work with clients. the bar association in the future? MEMBER SINCE: I decided that was something I felt like I could do and do well. I went to law Making the legal community feel smaller, bringing people together, 2011 school, I’m from Columbus so I always knew I was going to come back at anything that an association can do to bring different groups of attorneys YEARS IN PRACTICE: some point. Having the opportunity to come back to Ohio State for law school together I think is very important. Inclusion and diversity is critical. 8 worked out great after spending a few years in New York. Society is changing drastically, and the CITY/COUNTY: legal industry can be behind dealing What do you find most with innovation or trends. But we are a Columbus rewarding about your career? service-based industry. We have to be able to represent everybody and we have Litigation is what I do and I think a to be able to represent society at large. lot of people have an idea in their head about what litigation is, that you’re just I think studies have shown that lawyers out there every day fighting, arguing and groups that are diverse provide about everything. At the core of it, we’re better client solutions than non-diverse problem solvers. What I find really groups. So other than it being a moral rewarding is when a client comes to me issue, there is a strong business case with a problem and my job is to find a for that as well, and I think a lot of us solution. Sometimes that involves going recognize that. through litigation beginning to end, sometimes it’s positioning ourselves

Watch video and learn Do you know an attorney who’s doing great things? Nominate them  more about Ali at for a Member Spotlight! Send an email to [email protected] OhioBar.org/AliHaque

OHIO LAWYER 32 SPRING 2019 The Marketplace

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Contact Amanda Morrow for more information at (614) 487-4453 or email at [email protected].

The Marketplace

Size: 1/16 50 words Image (text only) Size: 1/8 OSBA Career Center $500 Vertical 80 words Whether you are seeking new career

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To post your job immediately online, OHIO LAWYER SUMMER 2019 10 visit https://careercenter.ohiobar.org

OHIO LAWYER SPRING 2019 33 Get published at the OSBA

The Ohio State Bar Association offers high-quality law-related information to a wide audience via a variety of formats.

What’s missing? Your contribution.

OhioBar.Org The OSBA website is home to a robust practice library and quality public content that receives thousands of unique views per month.

Ohio Lawyer Magazine The award-winning Ohio Lawyer magazine is not just a perk of being an OSBA member. It offers vetted insights on timely, cutting-edge topics affecting the legal profession today.

A contribution to Ohio Lawyer puts you among the thought leaders of the profession.

Law You Can Use Get the exposure you need by providing the OSBA’s most visited content. “Law You Can Use” offers the public and statewide media information on common legal topics and connects you with potential clients.

These are just some of the opportunities waiting for you at the OSBA.

Now get writing! Submit your contribution to [email protected]