CBA or Pull the Plug? - Cincinnati Bar Association

Transcription

CBA
Report
Febr u a r y 2 012
Lifeline
or Pull the Plug?
Health Care Reform Goes to Supreme Court
T
he Cincinnati Bar Association,
founded in 1872, is an Ohio not-forprofit corporation, the members of which are
attorneys principally practicing in Hamilton
County, Ohio. Its mission is to maintain
the highest professional standards among
attorneys, to enhance the professional
competence of attorneys, to improve the
administration of justice, to serve the needs
of members, and to provide law-related
service and education to the public.
table of contents
CBA
Report
Cincinnati Bar Association
Board of Trustees
W. Breck Weigel, President
Anthony E. Reiss, President-Elect
Jean Geoppinger McCoy, Vice President
John P. Tafaro, Secretary
Stanton H. Vollman, Treasurer
Thomas L. Cuni, Immediate Past President
Erin M. Alkire
Susan Bailey-Newell
Natasha M. Cavanaugh
Stacy A. Cole
Eric K. Combs
Douglas R. Dennis
Jack B. Harrison
Joseph D. Heyd
Staci M. Jenkins
David M. Lafkas
Hon. Steven E. Martin
Richard L. Moore
Michael J. Newman
Laura S. Raines
Dale A. Stalf
John Mark Williams
John B. Pinney, ABA Delegate
John C. Norwine, ex officio
Correspondence regarding this
publication should be sent to:
Editor, CBA Report
225 East Sixth Street, 2nd Floor
Cincinnati, OH 45202-3209
(513) 381-8213 • FAX (513) 381-0528
e-mail: [email protected]
Requests for advertising
information should be sent to:
George R. Quigley Sr.
Advertising Director
7270 North Mingo Lane
Cincinnati, OH 45243
(513) 779-7177 • FAX (513) 779-2832
e-mail: [email protected]
The CBA Report (USPS Permit No. 5415) is published monthly by the
Cincinnati Bar Association, 225 East Sixth Street, 2nd Floor, Cincinnati,
Ohio 45202-3209, (513) 381-8213. CBA membership includes a sub
scription. Non-member subscriptions are $30 per year. Third-class
postage paid at Cincinnati, Ohio. Postmaster: Send address changes
to CBA Report, c/o The Cincinnati Bar Association, 225 East Sixth Street,
2nd Floor, Cincinnati, Ohio 45202-3209.
©Copyright 2012 by The Cincinnati Bar Association. All rights reserved.
Reproduction in whole or in part without permission is prohibited.
The CBA Report is published as part of the CBA’s commitment to provide
membership with information relating to issues and concerns of the local
legal community.
Opinions and positions expressed in the signed material are
those of the author and may not necessarily reflect those of
the CBA.
www.CincyBar.org What’s inside…
4
5
President’s Brief
The Show Must Go On
By Breck Weigel, President, Cincinnati Bar Association
Cover Article
The Affordable Care Act and the Constitution
The Constitutional Case for the Individual Mandate
By Chris Bryant
The Individual Mandate Appears to Fail the “Proper” Test
By Jack Painter
9
12
13
Feature Article
Navigating Ohio Condominium Issues
By William J. Mitchell
Tech Tip
Tips for Ensuring Personal Device Security
By Jennifer L. Frank
On Second Thought
Anger Revisited
By Bea V. Larsen
Also
inside…
22
22
BLAC-CBA Round Table
17CBA Staff Directory
14 Cincinnati Bar Foundation
31 Classified Ads
16Committee Corner
20 Continuing Legal Eduction
21 CLE Seminar Calendar
Ethics Hotline
23 Legal Community News
26Member/Firm News
17 Member Services
30Memorials
18 Young Lawyers Section
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February 2012 CBA REPORT 3
president’s brief
The Show Must Go On
EE
By Breck Weigel
d Cohen was one of the very first
in. Within a few days, he was taking the
volunteer at first. He even got to play legendpeople I met at UC College of Law in
LSAT with no studying — and earning the
ary lawyer Atticus Finch. But Cohen found
1982. He was my legal research and
second highest score in his class. He earned
that his gift was directing. “I know what I
writing instructor and I long ago forgave
a full law school scholarship. He excelled at
want it to look like and how to communicate
him for my less-than-stellar grade. So it was
Moot Court, graduated, and, after his brief
that to actors.”
great to catch up with him recently in his
stint on the faculty, sought out practical
Over the years, his reputation has grown
downtown office.
experience. He joined Goodman & Goodconsiderably and he is regularly booked for
Lined up in the hallway are stacks of
man to help defend Beverly Hills Supper
shows at the Covedale, Showboat Majestic,
folders. It’s the never-ending trail of busiClub cases.
CCM and other local venues. These paid gigs
ness for his firm — Clements Mahin &
“I learned a lot from Stan Goodman,” Ed
are not only another job for Ed, they also
Cohen LPA Co. — which focuses on claimsaid. “He was one of the finest lawyers I’ve
led to him meeting his now-wife, Dee Anne
ants’ workers’ compensation cases.
Bryll. She is the director of the theatre
Usually juggling about 200 to 300
program at St. Ursula Academy and is
cases at a time, Ed says volume is
also a busy director and choreographer.
key in having such a specialized
Sometimes, they pair up on projects
practice.
like the upcoming “Music Man” at
He and his colleagues “handle
the Showboat this summer. “It’s really
claims for the long haul,” not only
unique how we can share something
because such cases are open for
that we are so passionate about,” he
years, but also because there is often
said. “We get to do this very creative
no compensation for a long time.
thing together. It’s really amazing.”
It’s a practice that works remarkably
He taps into that energy to get
well for Ed, especially since his path
through his long days which can
to his practice — as well as to his
include — besides a good eight hours
extracurricular pursuits — was a
in the office — four-to-five hours of rerambling one.
hearsal, followed by notes for the actors
Ed Cohen, left, chats with Breck Weigel in an office surrounded by case
A graduate of Woodward High
and planning sessions that can take
files – as well as by stage show posters like this one for “Ragtime.”
School, Ed admits he was not very
until midnight. And the next day, he will
motivated, which led to indecision
do it all again with great enthusiasm.
ever met. He taught me a lot about graciouson what he wanted to be when he grew up.
Mixing family with his artistic pursuits
ness, about civility. This is a small town and
He started out in radio and TV broadcastcertainly
helps him keep everything conpeople remember when you go out of your
ing, then jumped to pre-med and to English.
nected.
In
addition to working with Dee
way for them, and they remember slights.”
After yet another switch, Ed became the first
Anne, he has directed his daughter, Briana,
Next, Ed went to Konditzer Gold &
person to earn a linguistics degree at UC. It
23, and he will be directed this winter by his
Frank, where he learned about workers’
was then grad school at Indiana University.
31-year-old son, Dan, in “The Crucible.”
compensation, a practice that would give
But Ed found that while he liked research,
“It’s been a long road to come to this balhim plenty of trial and appellate experience.
he wasn’t cut out for a career in therapy.
ance
in my life,” Ed said. “But in theatre and
When he and some co-workers launched
He came back to UC, now with a wife, and
in
the
law, I’ve found that a diva is vastly
their own practice, he had reached his
worked on linguistics research but felt it was
overrated. You get jobs because you get the
niche practice that could balance what had
a deadend. In fact, an employment agency
job done and you’re easy to work with. It
become his passion: theatre.
called him “unemployable.”
pays to be nice.”
After starting with roles in commuHis Clifton bus dropped him off at the
nity theatre shows in the early 1980s, Ed
Breck Weigel is the 2011-2012 president of the
old law school and, on a whim, Ed walked
explored other opportunities, mostly as a
Cincinnati Bar Association.
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4 February 2012 CBA REPORT www.CincyBar.org
cover article
The Affordable Care Act
and the Constitution
“The Supreme Court … (has) agreed to hear a challenge to the 2010 health care overhaul law,
President Obama’s signature legislative achievement, setting the stage for oral arguments by March
and a decision in late June as the 2012 presidential campaign enters its crucial final months.”
— New York Times, Nov. 14, 2011
The Constitutional Case for the
Individual Mandate
The Individual Mandate Appears
to Fail the “Proper” Test
The individual mandate provision of the
Affordable Care Act (ACA) will, starting in
2014, require that most Americans obtain
health insurance or pay a monetary penalty.
Jack Painter and other opponents of the
ACA claim that this provision exceeds the
scope of Congress’s power. But in the last
three-quarters of a century, the Supreme
Court has on only two occasions invalidated a federal statute on
the ground that it went beyond Congress’s sweeping authority to
regulate interstate commerce. In both cases the Court concluded
that Congress lacked power because the matters addressed were
in no way economic in nature. Obviously, neither of these cases
supplies any precedent for invalidating the ACA. That statute
regulates the health insurance industry, which none can doubt is
economic in nature, and which pays for what amounts to nearly
18 percent of the U.S. economy.
It bears emphasis that the only genuine controversy concerns
whether Congress can enact a health-insurance mandate. There
is simply no serious federal constitutional argument that states
lack the power to impose such a mandate, which is why Mr.
Painter’s appeal to the Declaration of Independence generates
more heat than light.
Does this power belong solely to state governments? The
Constitution grants Congress power “To regulate Commerce .
. . among the several States” and “To make all Laws which shall
be necessary and proper for carrying into execution” all other
powers that the Constitution vests in the federal government.
Whatever the outer boundaries of “Commerce” may be, the Supreme Court ruled more than sixty years ago that the business
of insurance is “Commerce.” I think that should end the matter,
and I am not alone in this view. Former Reagan Administration Solicitor General Charles Fried, Sixth Circuit Judge Jeffrey
Sutton, and D.C. Circuit Judge Laurence Silberman think so too.
Though their integrity may have cost them some fair-weather
friends, two years ago all three would have topped any conservative’s list of brilliant and honorable lawyers.
Under the Affordable Care Act, starting in 2014, most Americans must purchase
health insurance or pay a monetary penalty.
The Obama Administration faces a key challenge in arguing for the constitutionality of
this “individual mandate”: Its theories of
Congress’s commerce power arguably lack
an effective limiting principle, and that has
potentially significant constitutional implications.
The Constitution grants Congress power to “regulate Commerce . . . among the several States” and “make all Laws which
shall be necessary and proper for carrying into Execution” all
powers the Constitution vests in the federal government.
The Supreme Court has said Congress may regulate activities that have a “substantial effect” on interstate commerce. The
Administration’s basic argument is that the failure to purchase
health insurance has such an effect because everyone will eventually need health care, and, in the aggregate, people who fail to
purchase health insurance ultimately impose medical costs on
others through cost-shifting. Therefore, Congress can mandate
the purchase of health insurance.
Under that theory, can the federal government also force
people to see their doctors for check ups or preventive care in an
effort to reduce medical costs and cost shifting?
Can it force people to buy healthful foods or join a health
club on the same basis? Former Solicitor General Charles Fried,
who believes the individual mandate is constitutional, says Congress can mandate the purchase of broccoli.
What about telling people they must eat broccoli or exercise?
Erwin Chemerinsky, the Dean of the California Irvine School of
Law, says “what people choose to eat well might be regarded as a
personal liberty” and thus beyond Congressional control. Professor Chris Bryant (see accompanying story) of the UC College
of Law wrote an op-ed saying forcing people to exercise “might
unconstitutionally infringe upon individual liberty.”
They apparently believe those mandates would improperly
intrude on personal autonomy. Why don’t government mandates concerning personal decisions like whether to go to a
By Chris Bryant
Continued on page 6
www.CincyBar.org By Jack Painter
Continued on page 7
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cover article
The Constitutional Case for the Individual Mandate...
Continued from page 5
Even if some defect lurked in this
Commerce Clause analysis, Congress
would still have power to enact the
mandate under the Necessary and Proper
Clause. Consider the ACA’s prohibitions
on denial of coverage to persons with
pre-existing conditions. Even the courts
striking down the individual mandate
concede Congress’s power to enact these
provisions. But the power to enact the
individual mandate then follows as night
follows day. Without a mandate the
pre-existing-conditions sections of the
Act would create a perverse incentive to
wait until you are sick to buy insurance.
Hence, the Act requires that everybody
buy health insurance now.
It is no answer to say, as Mr. Painter
does, that Congress cannot create a problem and thereby provide itself the power
to fix it. One could just as easily argue
that the need to punish mail robbers is
a problem created by Congress’s establishment of a Post Office. The question
should be: is the ancillary part of the law
genuinely essential to a rationale scheme
of regulation lawfully enacted under
some other enumerated power? As applied to the individual mandate, it would
be irrational to conclude otherwise.
Still, those who think the individual
mandate is unconstitutional insist that
all this is irrelevant. They contend the
individual mandate is a regulation of
inactivity, and all prior regulation under
the Commerce Clause has been of activity of some kind.
The mandate, however, is not really a
regulation of inactivity at all. Rather it is
a regulation of something we would all
think of as activity – namely, paying for
healthcare. The Act regulates the manner
in which this is done. With healthcare,
the question is not whether, but when.
We simply cannot avoid being healthcare consumers. And for many of us,
that healthcare will be catastrophically
expensive and well beyond our means to
pay.
But even assuming for argument’s
sake that the healthcare insurance mandate regulates inactivity, so what? The
notion that Congress’s regulatory power
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stops at inactivity has no support in the
countless cases construing the Commerce Clause. Nor would such a limit
meaningfully constrain Congress or
protect individual liberty. Consider the
irony that none of the arguments arrayed
against the ACA in any way challenges
the power of Congress to enact a singlepayer system such as one finds in Great
Britain. All agree that Congress could
simply tax the citizenry and use the
revenue to pay for healthcare costs, as
it already does via Medicaid. The ACA’s
individual mandate was enacted as part
of an attempt to preserve a more marketoriented approach. In what way does it
protect liberty to allow Congress to take
your money but prohibit it from requiring instead that you spend it to purchase
private insurance?
Mr. Painter tries to deflect this
argument, asserting that “the fact that
Congress can use the taxing power to tax
people if they choose to enter the stream
of commerce doesn’t mean it can use the
commerce power to force them to enter
the stream of commerce.” This answer
illustrates the absurdity of the activity/
inactivity distinction. Were it law, you
would be beyond congressional power so
long as you never earned income, bought
anything, sold anything, or consumed
anything. One might as well limit congressional power to those citizens who
breathe.
Mr. Painter says that the Administration can identify no limiting principle
circumscribing congressional power. But
nothing said in support of the ACA in
anyway undermines the limit that the
Court itself recognized, namely that the
Commerce power extend only to regulations of an economic nature. No one
contends that the ACA falls on the wrong
side of that line.
If one were really concerned, as in
fact I am, about run-away federal power,
the truly troubling case was Raich v.
Gonzales (2005). There the Court upheld
the power of Congress to imprison
Angel Raich for mere possession of any
amount of marijuana, even upon the
government’s stipulation that she had
done everything she could to insulate
the marijuana she possessed, which had
never been bought or sold, from any impact on any state other than California,
which had legalized marijuana for her
intended use. Indeed, it was stipulated
that the marijuana Raich possessed had
been “grown using only soil, water, nutrients, equipment, supplies, and lumber
originating from or manufactured within
California.” Dissenting, Justice Thomas
lamented that “[o]ne searches the [majority’s] opinion in vain for any hint of
what aspect of American life is reserved
to the States. . . . . If the majority is to be
taken seriously, the Federal Government
may now regulate quilting bees, clothes
drives, and potluck suppers throughout
the 50 States.” Yet from so many of those
now so alarmed by the ACA’s individual
mandate there was then a thunderous
silence.
If I believed that a ruling invalidating the ACA’s individual mandate would
be the first step on a path of principled,
apolitical judicial enforcement of limits
on congressional authority, none would
applaud the result with greater enthusiasm. But I do not believe that. Federalism
objections to the ACA are part of a
century-old pattern of conservatives
marching forward federalism principles
when Congress does something they do
not like, and then conveniently forgetting
them when Congress does something
they do like.
A selectively invoked federalism is
not really federalism at all. It is instead
merely a tool for jurists to dismantle
laws they do not like for other, unspoken
reasons, leaving intact laws equally obnoxious to federalism principles that the
judges happen to believe salutary. Such a
regime empowers unelected, life-tenured
judges to pick and choose among federal statutes on a basis they need never
articulate let alone defend. This is the
kind of thing that used to really bother
conservatives.
Bryant teaches constitutional law at the University of
Cincinnati. This essay reflects his views alone.
cover article
The Individual Mandate Appears to Fail the “Proper” Test...
Continued from page 5
doctor and how to pay for it also do that?
In response to these types of questions, the Administration has adopted
an alternate argument that Congress
may do anything essential to a broader
scheme to regulate interstate commerce
(a test proposed by Justice Scalia in his
concurring opinion in Gonzales v. Raich).
The Administration says this test is met
because a requirement in the Affordable Care Act that insurance companies
cover pre-existing conditions won’t work
without the individual mandate. (People
will wait until they are sick to buy health
insurance.) But this argument also lacks
an effective limiting principle because it
permits Congress to justify any economic
mandate by first adopting a regulatory
scheme that won’t work without it.
Ultimately, the Administration argues its theories have a limiting principle
because health care is different. But that
isn’t really a constitutional principle.
Professor Chemerinsky admits as much
when he says “Congress could use its
commerce power to require people to buy
cars.”
So the Administration can’t convincingly identify a limiting principle that
protects us against inappropriate government control over our lives. (This is true
despite Supreme Court decisions that say
Congress cannot use its commerce power
to regulate intrastate non-economic
activity.)
This raises additional questions. If
the federal government can force you to
buy a product, can it also force you to
sell one? Does this apply to services as
well? What penalties can the government
impose for non-compliance? (Under the
Affordable Care Act as originally proposed, people who refused to purchase
health insurance or pay a penalty faced
jail time.)
In any event, if the federal government has this power, why hasn’t it used it
in the past 225 years? Why has it always
chosen to create incentives for people to
buy and sell goods and services instead
of just ordering them to do so?
Professor Bryant says disallowing
the individual mandate wouldn’t protect
www.CincyBar.org individual liberty because Congress can
instead impose taxes under its taxing
power and provide health care under
its spending power. But the fact that
Congress can use the taxing power to tax
people who choose to enter the stream
of commerce doesn’t mean it can use
the commerce power to force them to
enter the stream of commerce. And it is
arguably easier politically for Congress
to infringe our liberty through targeted
economic mandates than broad-based
tax increases.
The Administration’s constitutional
theories are ultimately based on the
Necessary and Proper Clause of the
Constitution. The key Supreme Court
decisions developing the “substantial
effects” doctrine appear to rely on the
“necessary” part of that Clause, and the
“essential to a broader scheme” theory
proposed by Justice Scalia does so explicitly.
In McCullough v. Maryland, Chief
Justice Marshall said a law is “proper”
under the Necessary and Proper Clause
only if it is consistent with “the letter and
spirit of the Constitution.” Do economic
mandates like the individual mandate
meet that test?
At the very least, the individual
mandate is unprecedented. A mandate
coerces you because you exist (in contrast
to a prohibition or regulation of chosen
activity, where you can avoid government
coercion by making a choice to forgo
certain activities.) Unlike the individual
mandate, existing federal mandates (military conscription, jury duty, and census
participation) are all essential to the very
existence of the federal government and
therefore considered fundamental duties
of citizenship.
Beyond that, the Obama Administration’s broad view of the commerce
power puts the burden of protecting
individual liberty almost entirely on the
Bill of Rights and “unenumerated rights”
(like the right to privacy) recognized
under the doctrine of “substantive due
process.” In effect, the lack of a limiting principle creates a sea of federal
power with islands of individual liberty
rights (and a small island representing
relatively minor instances of intrastate
non-economic activity not subject to the
commerce power).
This has three significant implications for the “proper” test. First, it means
the limitations on state and federal power
are effectively the same, and, therefore,
the federal government has virtually the
same powers as the states. That is clearly
inconsistent with our federal structure
and with long-standing Supreme Court
precedent stating that only the states
have a general “police power.”
Second, it means our personal liberty
is at risk because existing individual
liberty rights don’t provide sufficient
protection against the possible intrusions
on personal autonomy noted above. In
particular, the unenumerated right to
liberty recognized in Lawrence v. Texas
at best protects only conduct that is not
harmful to others, such as certain private
sexual conduct. There is a real risk the
courts will conclude that our failure to
eat broccoli or exercise indirectly harms
others by raising their health care costs
and therefore is not a protected right.
Finally, it means the scope of federal
power is at odds with the concept of
self-ownership that underlies the theory
of natural rights in the Declaration of
Independence - the idea that we own
ourselves and, therefore, have the right
to be left alone as long as we honor the
equal right of others to be left alone. If
the federal government can force us to
purchase health insurance from a private
company for the rest of our lives and, by
logical extension, force us to join a health
club or buy a car, and perhaps force us to
eat broccoli or exercise, we have strayed
far from the vision of liberty at our
founding. (This is true even if the states
can use their police powers to impose
mandates, since there are practical limits
on their use of those powers that don’t
apply at the federal level, including the
ability of people to vote with their feet.)
Given this, is the individual mandate
consistent with the letter and spirit of
the Constitution and therefore “proper”
under the Necessary and Proper Clause?
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cover article
In the 1990s, the Supreme Court held
that certain federal mandates are an
unconstitutional commandeering of the
state legislatures in violation of the Tenth
Amendment and therefore not “proper”
under the Necessary and Proper Clause.
The unanswered question is whether
the Tenth Amendment recognizes not
just state sovereignty, but also the popular
sovereignty of the people, and whether the
individual mandate constitutes an unconstitutional commandeering of the people.
In the recent case of Bond v. United
States (2011) all nine Justices agreed that
states are not the sole intended beneficiaries of federalism under the Tenth
Amendment, and Justice Kennedy stated,
“federalism protects the liberty of the
individual from arbitrary power.”
This suggests to me that individuals,
like states, cannot be commandeered to
carry out federal regulatory programs and
that the individual mandate is therefore
unconstitutional.
Painter is a corporate lawyer in private practice. He
founded Liberty Alliance Cincinnati and is on the
board of the Ohio Liberty Council. His full analysis of
this issue is at www.LibertyAllianceCincinnati.org/
individualmandate
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Mike Kaufman, Todd Bailey, Sherry Davis,
Bea Larsen, Jerry Lawson, Lori Ross
feature article
Navigating Ohio
Condominium Issues
W
W
hether the following script
from Seinfeld is solely comedy
or contains an element of
truth, you will have to judge for yourself:
Helen/Jerry’s Mom – Jerry, it was so nice
of you to come down here on your
father’s birthday. You’ve helped take
his mind off the condo elections.
Jerry: Oh, right. You can’t run for condo
president because you were impeached at the other condo.
Morty/Jerry’s Dad: I was never impeached! I resigned!
Helen: Even so, the press would bury
him!
Jerry: What press?
Helen: The condo newsletter, the Boca
Breeze.
Morty: Pinko Commie rag.
Elaine (talking to Jerry on the phone):
Hey, so Kramer’s running for president of the condo?
Jerry: Yeah, it’s all my father’s doing.
Jerry: He wants to install Kramer in a
puppet regime and then wield power
from behind the scenes. Preferably
from the sauna in the clubhouse.
Elaine: Who are they running against?
Jerry: Common sense and a guy in a
wheelchair.
Kramer (looking at the newsletter):
Hey, look at that. Picture of me, huh?
(reading out loud) Candidate Cosmo
Kramer caught barefoot in clubhouse.
www.CincyBar.org By William J. Mitchell
Morty: Barefoot in the clubhouse? Don’t
you realize this is against the rules?
Kramer: Well, I couldn’t find my shoes.
Jerry: Kramer, these people work and
wait their whole lives to move down
here, sit in the heat, pretend it’s not
hot, and enforce these rules.1
Condominium law presents a wide
range of legal issues that extend beyond
simply enforcing rules. The board of
directors (typically through a management company), often working with its
attorney, must navigate through issues
involving bankruptcy, assessments, liens,
foreclosures, leasing, maintenance, and
amendments to the governing documents.
When it comes to rules violations and
other disputes between the unit owner
and the condominium association, Ohio
law generally favors the association.2
“The benefits of condominium living
contemplate cooperation among unit
owners. Restrictions adopted with the
blessing of RC 5311.05 require an owner
to surrender certain personal choices
in the interest of the common purpose.
Accordingly, an owner who unilaterally disrupts the general plan because
he wants a change defeats the idea and
purpose of condominium living.”3
Courts are quick to point out that
when the condominium owner purchases
the property, he does so subject to the
governing documents of the association.
The Ohio condominium statute
specifically provides that all owners and
occupants of condominium property
shall comply, not only with deed restrictions and restrictions found in the
declaration and bylaws, but also with
administrative rules and regulations. No
owner should purchase a unit without
realizing that he gives up some of his
independence to the perceived need for
conformity in a condominium development, and that the ‘perception’ of how
much conformity is enough will be
determined by someone else.4
All In the Declaration
Most rights, duties, and obligations
of the unit owner and the association are
found in the recorded declaration. RC
5311.05 lays out the minimum contents
of what the declaration must contain. It
includes a legal description of the land
and buildings, the name of the property,
a description of the common elements,
and the method of amendment. Should
the declaration be silent, or ambiguous on an issue, the Ohio Revised Code
has many specific sections contained in
Chapter 5311 to fill in the gaps.5
All condominium property shall be
administered by a unit owners association, through its board of directors.6 The
unit owners association shall be governed through bylaws.7 The bylaws shall
provide for the election of the board of
directors, the time and place for holding meetings, the common expenses for
which assessments may be made, and the
procedure by which administrative rules
governing the operation and use of the
condominium property may be adopted.8
The code also establishes the powers
and duties of the unit owners associa-
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feature article
tion. The statute is clear that unless the
declaration or bylaws state otherwise, the
board of directors shall do the following:
1.Adopt and amend budgets, including reserves (the reserves shall be at
least ten percent of the budget for
that year); and
2.Collect assessments for common
expenses.
However, unless otherwise provided in the declaration, the association,
through the board of directors, may do
the following:
1. Hire and fire managing agents and
other professionals and contractors;
2. Commence, defend, intervene in,
settle, or compromise legal proceedings;
3. Enter into contracts and incur
liabilities relating to the condominium property;
4. Regulate the use and maintenance of
the condominium property;
5. Adopt rules that regulate the use
or occupancy of the units, the
maintenance, repair, replacement,
modification, and appearance of
units and common elements;
6. Impose and collect fees for the use or
rental of the common elements;
7. Impose interest and late charges for
the late payment of assessments;
8. Adopt and amend rules that regulate
the collection of delinquent assessments;
9. Enter a unit for bona fide purposes
when conditions exist that involve
an imminent risk of damage or
harm to common elements, another
unit, or to the health or safety of the
occupants of that unit or another
unit; and
10.Suspend the voting privileges and
use of recreational facilities of a unit
owner who is delinquent in the payment of assessments for more than
thirty days.9
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Sticky Issues
One complication for associations
involves the filing of bankruptcy by
the unit owner. Although a chapter
13 filer will often remain liable for
pre-bankruptcy condominium assessments (through the Chapter 13 Plan),
most chapter 7 filers will be discharged
from them. However, post-bankruptcy
condominium assessments remain the
obligation of most bankruptcy filers
Unfortunately, Ohio law does not
define what constitutes a unit. Thus, the
parties must rely on the declarations,
which can vary considerably when it
comes to such definitions. As with most
condominium issues, it is always best to
review the relevant portion of the declaration in detail to assist in determining
where the unit ends and the Common
Elements begin.
For those unit owners that are frustrated with a portion of the declaration,
When it comes to rules violations and other
disputes between the unit owner and the
condominium association, Ohio law generally
favors the association.
should the unit owner not abandon the
property. If the unit owner or trustee of
the bankruptcy estate has an interest in
the unit, then the condominium assessments will have to be paid. Specifically,
under 11 U.S.C. §523 (a)(16), a discharge
under chapter 7 or a chapter 13 does not
discharge an individual debtor from any
debt “for a fee or assessment that becomes due and payable after the order for
relief to a membership association with
respect to the debtor’s interest in a unit
that has condominium ownership. . . for
as long as the debtor or the trustee has a
legal, equitable, or possessory ownership
interest in such unit”.10
Maintenance issues can be another
sticky issue. Defining who is responsible
for maintenance isn’t often clear cut. If
you ask most people, they will say the
unit owner’s obligation is “paint in.”
Finding the answer depends on determining if the item is part of the unit or
common elements. Typically, the declaration will contain guidance on this issue.
The definition of a unit will commonly
be defined as being the undecorated interior surfaces of the perimeter walls and
the unfinished surface of the lower floor
and the unfinished interior surface of the
ceiling of the upper floor all projected,
if necessary by reason of structural
divisions such as interior walls and partitions, to constitute a complete enclosure
of space, and all improvements within
that space.11
they will sometimes attempt to amend
the declaration. This is typically a daunting task. Generally, amendments must be
approved by the affirmative vote of those
owners exercising at least 75% of the
voting power.12 Attempts at amendments
are more common place in homeowner
associations because there are more exterior issues involved, such as pools, sheds
and fences.
A typical amendment in recent
years has been to restrict rentals. Those
amendments typically “grandfather” any
current leases, but prohibit new leases in
the future. At least one Ohio court has
ruled that such an amendment to the
declaration was not, per se, unreasonable.13
What About Foreclosure?
The inescapable issue for all condominium associations is dealing with
unit owners that don’t pay their monthly
assessments. As with mortgage delinquencies, there has been a steady increase
in condominium owners falling behind
in the payment of their monthly dues.
Although fees vary widely, an average
range in greater Cincinnati is somewhere between $130 to $200 per month.
Because the condominium assessments
are almost always due monthly, the association cannot afford to sit idly by and
do nothing as the delinquent account
continues to increase each month.
feature article
As such, the association has to act
quickly. The first step typically involves
sending the unit owner a notice of delinquency according to the association’s
collection policy. Second, the unit owner
will normally receive a notice that the
matter will be turned over to the association’s attorney for placement of a lien.
Should these notices prove unsuccessful, the association will typically file the
lien.14
This is where the situation may become tricky. Oftentimes, the unit owner
is also delinquent in the payment of their
mortgage, which results in a foreclosure
Complaint being filed by the lender. In
this case, the association will be included
in the foreclosure and can simply file a
cross-claim, and allow the lender to do
the heavy lifting.
However, this isn’t always the case.
Even in those situations where the lender
files the foreclosure, it will sometimes
modify its mortgage or place the foreclosure on hold for other reasons.
Sometimes there is no mortgage, and
the unit owner’s only delinquency is to
the association. Should the lender not
proceed with the foreclosure, or never
file a foreclosure in the first place, the
association is put into a tough spot. The
association certainly has the right to
foreclose on its lien. However, this can be
an expensive proposition.
The foreclosure proceedings are fairly
regimented and time-consuming. Although the association may be awarded
its attorney fees, in addition to the delinquent amount, the judgment is often not
collectible. Of course the unit can be sold
at Sheriff’s sale, but will almost always
be sold subject to the first mortgage.15
Because the property normally has little
or no equity, and will sell for much less
than its true value, there are rarely any
funds left from the Sheriff’s sale to satisfy
the judgment.
The upside of foreclosure is that it
often provides the motivation necessary
for the unit owner to satisfy the balance,
or to at least enter into a satisfactory
payment plan. Another advantage is that
once the property is sold at Sheriff’s sale,
the association now has a new owner
to pay monthly assessments moving
forward. Finally, there are occasions
where the lender will take the reins of the
www.CincyBar.org foreclosure process once it is filed by the
association.
Although there are many issues associated with condominium law, this
brief overview should provide you some
insight into the many complicated issues
that arise when dealing with community
associations.
Mitchell practices law in Madeira. He is licensed in
Michigan, Kentucky and Ohio. He represents a variety
of condominium and homeowner associations in
Greater Cincinnati.
1 Seinfeld. Dir. Andy Ackerman. NBC. Season 9, episode 15.
February 26, 1998.
2 The association also has the authority to enforce these
rules against tenants, through eviction proceedings. RC
5311.19(B)(1).
3 Sprunk v. Creekwood Condominium Unit Owners’ Ass’n., 60
Ohio App. 3d 52, 573 N.E.2d 197 (1st Dist. Hamilton
County 1989).
4 Kenton L. Kuehnle with Charles T. Williams, Ohio Condominium Law 249 (2010).
5 Although this article is focused on Ohio condominium
law, similar issues arise in traditional single-family
homeowner associations. The Ohio legislature recently
passed the “Ohio Planned Community Law”, which
became effective September 10, 2010. Prior to that,
courts had to rely solely on the governing documents
of the homeowners association to interpret legal issues, which often created gray areas in the non-condominium sphere. See RC 5312.
6 RC 5311.08(A)(1).
7 RC 5311.08(B).
8 RC 5311.08(B).
9 RC 5311.081(B). The list provided is not verbatim from
the code, or all inclusive. There are other relevant sections that have not been listed.
10 In Brambleton Community Ass’n v.Than (2009), 2009 Va.
Cir. LEXIS 118, 6, the court held that the 2005 Amendment to 11 U.S.C. §523(a)(16) stated that a HOA fee
cannot be discharged “as long as the debtor or the
trustee has a legal, equitable, or possessory ownership
interest in such unit, . . ., or such lot”. In applying the
amended code, the court set forth three requirements
a homeowners’ association must meet to be awarded
post-petition HOA dues. They are: (1) the dues must
constitute HOA or condominium dues, (2) the dues
must become due or payable after the order for relief,
and (3) the dues must accrue while the defendant
holds a legal, equitable, or possessory ownership
interest.
11 Kenton L. Kuehnle with Charles T. Williams, Ohio Condominium Law 21 (2010).
12 RC 5311.05(B)(10). However, RC 5311.05(E)(1) allows
the board of directors to amend the declaration for
certain purposes, such as to meet the requirements of
mortgagees and insurance underwriters.
13 Worthinglen Condominium Unit Owners’ Ass’n v. Brown, 57
Ohio App. 3d 73, 566 N.E.2d 1275 (10th Dist. Franklin
County 1989).
14 RC 5311.18 discusses the association’s lien upon the
estate or interest of the owner in any unit, including interest, administrative fees, collection costs, and
attorney fees.
15 Unsuccessful efforts have been made to pass a “super
lien” law in Ohio that would give priority to the
condominium for six months’ worth of assessments.
Similar laws exist in a handful of states.
MICHAEL T. FARRELL PH.D.
& ASSOCIATES
375 Glensprings Drive - Suite 300
Cincinnati, Ohio 45246
(513) 825-6600
Psychological / Vocational Evaluations
and Counseling
• Bureau of Worker’s Compensation
• Social Security
• Personal Injury
l
tech tip
Tips for Ensuring
Personal Device Security
TT
ablet and smartphone security
issues have become a hot topic of
late, as well they should. Smartphones and tablets have exploded in
popularity, and currently dominate the
personal electronics market. The amount
and nature of information stored on
these devices makes them fodder for
hackers, so security should be a priority
for owners. It is important to note that,
any potential threat to tablets and smartphones cannot be transferred to your
computer (and vice versa) by syncing.
That being said, security measures for
one device will not carry over to another,
making it necessary to take measures to
protect them all. Here is a compilation of
the top security suggestions, based on a
survey of technology blogs and articles:
Download tracking software: Apps
for tracking lost tablets and smartphones
are available for Android, iOS, and
Blackberry-based devices. Some of these
services must be purchased (for example,
McAfee’s All Access is $74.95; Lookout
Mobile Security Premium is $30 per year;
Webroot Mobile Security is $19.99), and
some of these services are free (for example, Apple’s Find My iPhone; Lookout
Mobile Security; Cell Phone Solutions’
Phone Tracker). The paid services may
seem expensive, but they typically include many more security measures than
just tracking software.
Make educated app choices: Take
care only to download apps from recognized dealers. The Apple and Amazon
app stores have the most reliable offerings, as they maintain stricter screening
l
By Jennifer L. Frank
processes prior to releasing an app onto
their market. Fraudulent apps disguised
as things such as games and text enhancements will install malware onto
your device. For help determining which
apps are legitimate, you can either research the creator for other popular apps,
or consult a resource where someone has
already done the work for you, such as
Kim Komando’s myApp Store.
Never leave your device unattended:
There have been incidents where someone sets their phone on a bar or other
such public place, and while looking
away or leaving it in someone else’s care,
a hacker reaches over and installs tracking software or malware. If you are in
the habit of setting your devices down,
consider password protecting them so
that only you can access it.
Be vigilant in your surfing: Just as
you (or your employer’s firewall, or your
antivirus software) would monitor for
unsafe sites you may attempt to visit using your computer, those sites also can
harbor malware affecting your smartphones and tablets.
Listen to your IT department: If
there is not one in place already, a set of
guidelines will be coming your way soon.
For your friends’, clients’ and your own
sake, listen to and comply with these
policies!
Monitor your bills: Malware has the
ability to install additional apps and services onto your device, and will pull your
payment information from past purchases on that device to make unauthorized
charges on your account. If attached to a
smartphone, malware can send messages
under the guise of your number to pricey
call services.
The bottom line is that since these
devices are mini computers, they should
be treated similarly in terms of both
physical and software protection to ensure security of the sensitive information
stored inside.
Frank is a reference and electronic services professional
with Keating Muething & Klekamp, and was recently
admitted in Ohio. She is also a member of the CBA’s
LRIR Committee.
Additional Reading and Reference Sites:
The Kim Komando Show website, which contains Komando’s advice for buying and
using technology, can be accessed at www.komando.com
The Consumer Reports website can be accessed at http://www.consumerreports.org
EWeek’s IT Security and Network Security News,
Smartphone and Tablet Security- 10 Lessons to Learn (www.eweek.com/c/a/Security/
Smartphone-Tablet-Security-10-Lessons-to-Learn-463120/)
Help Net Security, Smartphone and Tablet Security Tips
(www.net-security.org/secworld.php?id=11646)
on second thought
Anger Revisited
II
don’t deal well with anger, rarely
express it, and when I’m the target of
another’s wrath, I withdraw, literally,
if possible. I have few memories of angry
outbursts in my childhood home, nor
were they part of my marriage or later
family life. Only vicariously have I been
witness to rage, that of actors or characters in a book.
Have I been proud of this? No. For
as a young adult I was schooled in the
Freudian psychoanalytic theory that the
expression of anger yields the catharsis
of purging aggressive feelings, a premise
still widely accepted. I’ve criticized the
absence of such displays in my family, even in my marriage. What hidden
harm was being done by these learned
but questionable repressed behaviors?
Wasn’t denying the expression of strong
emotions a major source of depression?
Surely the healthier way to live was to
release angry feelings as they arose.
The former mediation clients who
bring this issue vividly to mind told
me they were determined to maintain
a friendly connection as parents, and
their conversations in my presence were
amiable, if somewhat guarded. In private,
however, both described many unhappy
years as they drifted apart, and each
blamed the other for the failure of their
relationship. Nevertheless, our work was
proceeding well.
Then one morning the husband sent
me a copy of an e-mail written to his
lawyer instructing him to inform his
wife’s counsel that he had canceled her
car insurance and that maybe her health
insurance would be next. Without delay
I contacted him to find out what had
www.CincyBar.org By Bea V. Larsen
sparked this hostile act.
He told me that something his wife
said the night before aroused his resentment and he gave full force and voice to
his pent-up rage. The end result: the next
morning he canceled her insurance.
I assured him I understood that venting in this way had provided a welcome
release, but suggested his move might
well derail the almost completed settlement process. I urged him to deal with
his anger in some other way. He was a
golfer. Why not go to a driving range
and whack an entire bucket of balls. He
indicated he might well do just that.
I felt wise and helpful. But apparently
I was not.
For, coincident with these events, I
started reading a fascinating book by
Carol Tavris and Elliot Aronson, Mistakes Were Made (but not by me). Both
authors are prominent social psychologists and their text cites a number of
studies that conclude that the commonly
held belief that the expression of anger
results in a healthy catharsis that gets rid
of anger and reduces blood pressure is
dead wrong. Quite the opposite is true.
And here is what they point out:
The premise that “if you throw a
doll, hit a punching bag (while imagining the source of your anger), or shout at
your spouse, you’ll feel better afterward
is simply untrue”. In recent decades
experimental research has found exactly
the opposite: that “when people vent
their feelings aggressively they often feel
worse, pump up their blood pressure,
and make themselves even angrier.” This,
the authors reason, is because “when
you do something that harms someone
else – get them in trouble, verbally abuse
them, or punch them out – a powerful
new factor comes into play: the need to
justify what you did”. Studies detailed
in their book show that following angry
outbursts, the mechanism of self-justification takes over, so that we can continue
to see ourselves as the good person on
which our self-esteem is based. In mitigating or excusing our own behavior, the
predictable next step is to place blame
on the “other”, which in the moment of
increased aggressive feelings often leads
to revenge (canceling the insurance).
The conclusion: “Justifying the first hurtful act sets the stage for more aggression.
That’s why the catharsis hypothesis is
wrong. . . a vicious cycle is created. Aggression begets self-justification, which
begets more aggression”.
I understand that mental health
professionals today distinguish between
suppressed and repressed anger, suppression being perfectly fine if done for good
reason (i.e. to avoid losing a job), while
repressing awareness of anger, and its
source, can indeed lead to trouble. An
important distinction.
So, I called my client back, described
these newly gained insights and then
said: I think it’s a good thing to recognize
and even taste your anger, and do your
best to understand the source. But scratch
the golf ball plan.
He reinstated the insurance.
Larsen is a senior mediator at the Center for
Resolution of Disputes. She received the 2007 John
P. Kiely Professionalism Award from the CBA, and
also served as CBA president in 1986-87. Her weekly
commentaries can be viewed at www.bealarsen.com
l
Celebrating 50 Years
Created in 1961 by three members of the Cincinnati Bar Association, the Cincinnati Bar Foundation continues today to
be the only law-related charity in Cincinnati dedicated to promoting justice and changing lives through the law. For more
information on the efforts of the Foundation, contact René McPhedran at (513) 784-9595 or [email protected].
Cincinnati Bar Foundation,
Heart of the Legal Community
Thanks for Your Support
Welcome to the Club
Welcome Back
The Cincinnati Bar Foundation would
like to welcome the following firms to the
100% Club for the first time.
And thanks to the following firms for their continued support of the 100% Club .
Baker & Hostetler LLP
Goodman & Goodman LPA
Boehm Kurtz & Lowry
Barrett & Weber LPA
Kevin J. Hopper Co., LPA
Beckman Weil Shepardson LLC
Katz Teller Brant & Hild
Donnellon Donnellon & Miller
Blank Rome LLP
Keating Muething & Klekamp PLL
Flagel & Papakirk LLC
Buechner Haffer Meyers &
Koenig Co. LPA
The Lawrence Firm LPA
Helmer Martins Rice &
Popham Co, LPA
Cash & Cash LLP
Mason Schilling & Mason Co. LPA
Cors & Bassett LLC
The Moore Law Firm
Crabbe Brown & James LLP
O’Connor Acciani & Levy LLC
Croskery Law Offices
Rendigs Fry Kiely & Dennis LLP
Dinsmore & Shohl LLP
Robbins Kelly Patterson & Tucker
The Drew Law Firm
Santen & Hughes
Eberly McMahon LLC
Schimpf Ginocchio & Kehres Co. LPA
Eichel & Krone Co. LPA
Thompson Hine LLP
Freking & Betz LLC
Ulmer & Berne LLP
Gerhardstein & Branch Co. LPA
Wagner & Bloch LLC
Goering & Goering LLC
Wood Herron & Evans LLP
Musillo Unkenholt
Immigration Law
Niehaus Law Office LLC
Schuh & Goldberg LLP
Tobias Torchia & Simon
Weltman Weinberg &
Reis Co. LPA
Lerner Sampson & Rothfuss LPA
…And there is still time to join the 100% Club
When 100% of a firm’s attorneys donate to the CBF – or a firm matches
individual contributions – that firm is a member of the 100% Club and receives:
• Recognition in the CBA Report
• Recognition at the CBF Donor Thank You Breakfast
• Recognition at the CBA Annual Meeting Luncheon
• Tax deduction
Donations can still be mailed to:
The Cincinnati Bar Foundation
• Recognition as a 100% 50/50 Campaign Club Donor and a
listing on the CBF’s donor wall.
The Cincinnati Bar Foundation thanks all of the donors for their generous support for the Foundation’s goals and mission.
l
Celebrating 50 Years
Time For Spring Grant Applications
The Cincinnati Bar Foundation (CBF) announces its request for proposals for
the Spring 2012 grant session. All applications must be received by 5 p.m. Friday,
Feb. 24. To be considered, programs must demonstrate how they meet the Foundation’s mission of improving the community’s understanding of and access to the
law. Any non-profit organization is welcomed and encouraged to submit a request
for funding. Preference is given to programs in need of seed money rather than
requests for ongoing operating funds. Grants will be awarded at the CBF’s Board of
Trustees meeting on April 9, 2012. To request an application or for more information, contact Rene McPhedran at the CBF at (513) 699-1393.
Created in 1961 by three members of the Cincinnati Bar Association, the
Cincinnati Bar Foundation continues today to be the only law-related charity in
Cincinnati dedicated to promoting justice and changing lives through the law.
Memorial & Honor Gifts
The Cincinnati Bar Foundation gratefully
acknowledges the following gifts:
In Memory of
Judson J. Allgood
In Memory of
John L. Muething
In Memory of
Leon L. Wolf
Doloris F. Learmonth
John P. Concannon
Pamela M. Hodge
Marilyn J. Maag
In Memory of
John M. Anderson
In Memory of
John H. Burlew
In Memory of
Leslie A. Meek
Richard T. La Jeunesse
Robert R. Saelinger
In Honor of
Howard & Ruby Bond
Alicia Bond-Lewis
In Honor of
Thomas S. Calder
In Memory of
Gregory A. Ruehlmann Sr.
M. Gabrielle Hils
In Memory of
Jerry L. Cowan
Henry E. Menninger Jr.
In Honor of
Bonnie G. Camden
Grant S. Cowan
In Memory of
Nelson Schwab Jr.
J. Michael Cooney
In Memory of
John L. Evans Jr.
In Honor of
Stanley M. Chesley
In Memory of
J. Daniel Sherman
Louise M. Roselle
In Memory of
John W. Fischer Jr.
In Honor of
CBF Officers & Trustees
In Memory of
Hon. Julia A. Stautberg
Mamie & Robert W. Maxwell II
In Memory of
George Hopper
Jean Geoppinger McCoy
In Honor of
Timothy A. Garry Sr.
Kevin J. Hopper
In Memory of
Peter J. Strauss
Gail G. Pryse
In Memory of
C. Watson Hover
In Honor of
Jon Hoffheimer
Catherine H. Lippert
In Memory of
John W. Warrington
Dan Meyer
www.CincyBar.org Tee Time
32nd Annual Quid Pro Am
Monday, May 14
Oasis Golf Club
902 Loveland Miami Rd.
Loveland
Sponsor the 32nd annual
Quid Pro Am and secure
the future for the Mock Trial
competition
Whether you are a golfer or not,
you can still play an active role by being
a sponsor. The CBA member outing is
a fundraiser presented by the Cincinnati
Bar Foundation to benefit the high school
Mock Trial competition. Every sponsorship dollar will fund the YLS Mock Trial
competition. Portions of the sponsorship
are tax deductible.
For more information, call Rene
McPhedran at (513) 699-1393 or
[email protected].
The devil
is in the data.
• Computer Forensics
• Electronic Data Discovery
• Legal Document Services
onesourcediscovery.com
Contact Chris Miller for more information
513.519.2133/[email protected]
l
committee corner
For more information about becoming involved in any CBA practice committee,
contact Dorothy Schultz at (513) 699-1404 or [email protected].
CBA Committees
All meetings at noon at the Cincinnati Bar Center, 225
East Sixth St. unless otherwise noted. Access the latest
on committee meetings at the CBA Committee/Event
Calendar at www.cincybar.org.
February Meetings
Co-Chair: Juvenile Law Committee
Firm: Hamilton County Prosecutor’s Office
9
Employee benefits
Immigration Law
Practice Area: For most of my career, I supervised the prosecutors in the juvenile
delinquency division. I am now the public information officer for the office.
13
Court of Appeals
Law School: UC College of Law (1983)
14
Municipal Court
15
Domestic Relations
16
Hispanic Affairs
Real Property
21
Bankruptcy
22
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Taxation
March Meetings
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Julie Katsanis Wilson
6
Health Law
Taxation
7
ADR
Local Government
LRIR
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Employee Benefits
Workers’ Compensation
What kind of issues do you find most interesting in your practice
committee?: I enjoy all aspects of juvenile law.
What would your practice committee want other attorneys to
understand about your specialty?: I think that Juvenile Court is often
misunderstood. If attorneys who do not practice in Juvenile Court (as well as the
general public) understood the significant issues that are handled in this court every
day, I think that people would respect it more and more attorneys might be interested
in accepting juvenile cases.
How has being a part of your committee made a difference in your
practice?: It is always nice to meet with other attorneys in your field to discuss
various issues. It usually energizes me and makes me more excited about the work that
we do in court.
What is the most important project for your practice committee
this year?: Magistrate Falter and I hope to “grow” the committee. We want to get
more attorneys involved so that we can discuss the common issues and concerns to,
hopefully, provide better service to everyone who appears before the court.
When I’m not in the office, I’m…….walking. I love to visit different
neighborhoods for my walks.
Favorite quote that motivates me is…“I am an old man and have known a
great many troubles but most of them never happened.” Mark Twain
The movie or book that I always recommend is….The Red Tent by Anita
Diamant. It is an interesting story set in biblical times.
My favorite place to go in Cincinnati is….Aglamesis. Because…. You can’t
go wrong with their chocolate shakes! (This is why I need to walk so much!)
13
Municipal court
15
Real Property
20
Estate Planning
Bankruptcy
Trust Account Guidance
21
Domestic Relations
22
Social Security
27
Juvenile Law
28
Solo/Small firm
Lawyers’ Trust Accounts: A Handbook on the Rules Governing
the Duties of Lawyers to Account for Client Funds
Single copy: $15; Five or more: $12 each
(plus tax, shipping and handling)
Thanks to the Cincinnati Bar Foundation.
To get your copy, visit the online store at www.cincybar.
org/About CBA/Online Store
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Labor & Employment
My hero is…..My heroes are my children, Sam and Julia. They never let obstacles get
in their way and they try to make the world a better place.
For more information on any of your benefits, please contact Kathy Grant at (513) 699-4016 or [email protected].
A comprehensive list of all benefits can be found at www.cincybar.org.
CBA & CBF Staff Directory
Julie Kemble Borths......................................... 699-1391
Director of Communications, [email protected]
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Member Benefit: Professional Liability Insurance – The Denoyer Group
The CBA’s professional liability plan is specifically
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to 10% on professional liability insurance.
David Denoyer is committed to finding the right
insurance plan for you. As an Independent Insurance
Agency representing financially sound, reputable
companies, they place your policy with the company offering the best coverage at the
best possible price.
To receive a quote on your professional liability coverage, contact David Denoyer at
(513) 247-9110 or [email protected]
*Individual savings will vary
John C. Norwine.................................................699-1400
Executive Director, [email protected]
Dimity V. Orlet................................................... 699-1401
Director of CLE/Assistant Counsel, [email protected]
Maria C. Palermo............................................... 699-1402
Assistant Counsel, [email protected]
Edwin W. Patterson III.................................... 699-1403
General Counsel, [email protected]
Stephanie W. Powell......................................... 699-1407
Paralegal, [email protected]
Lisa Quintanilla................................................... 699-1406
Membership Administrator, [email protected]
Anthony W. Riley...............................................699-4013
Clerk
Kathleen M. Schmidt........................................ 699-1390
Executive Assistant, [email protected]
Dorothy J. Schultz............................................. 699-1404
Chief Administrative Secretary, [email protected]
Jamie Shiverdecker ..........................................699-4013
Director of LRS/Project Manager, [email protected]
LaDonna Wallace Smith.................................. 699-1392
Director of Community Service, [email protected]
Caren L. Theuring ............................................ 699-1397
CLE Program Coordinator, [email protected]
Monica O. Weber............................................... 699-1395
Marketing Designer, [email protected]
Andrew Wells..................................................... 699-1409
Information Systems Manager, [email protected]
Eileen M. Witker................................................ 699-1408
LRS Assistant, [email protected]
Amy K. Zerhusen...............................................699-4014
Accounting Administrator, [email protected]
7251 Beechmont Ave.
513-834-9034
Fax 513-834-9038
• Valuations of Closely Held Businesses
• Specializing in Construction Contractors
• Experienced Expert Witness Testimony/Depositions
• Litigation Support and Estate & Succession
Planning Services
Roy Bushman, CPA (Since 1986), CVA
Member of the National Association
of Certified Valuation Analysts
www.CincyBar.org Thinking of Flying
Solo?
Join your colleagues for this interactive workshop and find out about
the challenges and rewards of opening a solo or small office. Learn the
questions only you can answer: What about start-up costs? Setting
fees? Office technology? These essential building blocks for a successful
law practice – and much more – will be discussed in presentations
and informal lunchtable discussions with established solo/small firm
practitioners. Get the perspective you need for this important decision.
Friday, Feb. 24 • 8:30 a.m. to 1:15 p.m.
$25 Members ($35 Non-Members)
Includes John J. Mueller’s Lawyers’ Trust Accounts and the fifth edition of Jay
G. Foonberg’s How to Start & Build a Law Practice PLUS lunch
Space is limited. For more information or to register,
please visit www.cincybar.org or call (513)699-4028.
This program is made possible in part by a grant from the
Cincinnati Bar Foundation.
CLE credit is not available for this workshop.
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Young Lawyers Section
The CBA Young Lawyers Section is open to all attorneys age 36 or younger or in his or her first five years of practice
regardless of age. For more information on getting involved in the many professional, social and community service
activities of the YLS, contact Kathy Grant at (513) 699-4016 or [email protected].
New Requirement for Associates:
Successful Business Development
By Staci Jenkins, YLS Chair
One thing that is certain about the
changing legal market is that the expectations firms have of their associates have
evolved. While associates previously may
have been successful by building a substantive expertise and exceeding billable
hour goals, this is no longer adequate.
Yes, firms still expect this from their associates. However, they now also expect
associates to excel in business development.
Although the expectation to excel at
business development exists, there are a
diverse range of views on what makes an
associate successful in this area. Many
believe that the ability to be successful at
the type of events you attend on those
where you are more likely to have things
in common with the other attendees. For
example, maybe a college alumni event
or a non-profit organization’s event for
which you have a passion might naturally
give you a common subject for discussion
with others.
• Plan, plan, and plan more. In the
last few years there has been significant
focus placed upon the importance of
creating a business development plan. I
have heard many express that these written plans are busy work with no practical
use. I strongly disagree. When a working
business development plan is created, it
A business development plan that highlights
targets and short- and long-term goals related to
those targets will keep you on track.
business development is innate. Others
believe that it can be a learned skill, but
that law schools are not teaching this essential skill as part of their curriculum. I
believe it is a combination of innate ability, initiative and careful planning. That
aside, there is an opportunity to succeed
even for those for whom it does not come
naturally.
Some of the essential keys to success
that I have found are as follows:
• Build Relationships. I recently was
at a summit of emerging women leaders
from my firm and some there indicated
that they dislike the idea of networking.
As we delved more into the discussion,
I was able to determine that what they
really disliked was the idea of going to
events for the mere purpose of “rubbing
elbows” with others. While traditional
networking is important to make the
initial connections with individuals, I
prefer smaller settings where I can focus
on really getting to know a handful of
people with whom I envision building
a relationship, whether friendship or
work-related. If talking to strangers does
not come naturally to you, try focusing
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can do nothing but help you. All of us
are busy with billable/substantive work
and this will always continue to be a very
strong emphasis in our profession. Due
to this, it is very easy to let time slip by
without devoting time to business development. A business development plan
that highlights targets and short- and
long-term goals related to those targets
will keep you on track. That being said,
a plan should be a living and breathing
document, useful if you refer back to
it and update it regularly. If you create
a plan that you only revisit once a year
in advance of your review, it would be
merely busy work.
• Be forward thinking. Those who
are successful in business development
take initiative. It is essential that you
are forward thinking in creating your
business development plan. You then
must energetically follow through in
the implementation of the plan. While
merely attending a networking event may
result in obtaining business from time
to time, individuals who take initiative
in planning their attendance at the event
will have far more success. For example,
attempt to obtain a
list of attendees for
the event in advance.
Review the list and
pick a few individuals
with whom you want to make contact.
Then make a point to meet these individuals at the event. By taking the initiative
to plan your attendance, you will make
the best use of your time and will be
more likely to have results.
• Devote time to business development efforts. Regardless of how busy you
may be, it is essential that you set aside
some time every week for the overall
category of business development. It
is becoming more and more common
that your future success is dependent
upon being able to generate business.
That being said, it is so easy to focus on
the immediate work and projects on
your desk. Setting aside an allotment of
time per week to focus on some sort of
business development activity should be
viewed by you as an investment in your
future.
• Immediate gratification rarely
exists in business development. I think
one of the hardest parts of business
development is the lack of immediate
results. It is only natural that we want to
see some results for the time and energy
we put into a project. Unlike substantive legal work where we see our billable
hours grow or check an item off of our
to-do list, most business development
efforts will not result in immediate success. Instead, it is important to remember
that you are building relationships and
building your reputation so that you will
be called upon in the future.
Whether you are one of many individuals at a firm or are starting a solo
practice, business development will be an
integral part of having a successful legal
career. Take the time now to do a selfassessment of your skills, knowledge and
natural abilities in this area so that you
may take purposeful steps to better your
business development skills.
Young Lawyers Section
Thank You!
The YLS would like to thank the Greater
Cincinnati legal community for its continued
support of the Giving Basket. Nearly 550
children received gifts this holiday season
because of your generous contributions.
Children from the non-profit organizations
of the Boys & Girls Club, ProKids, Boys
Hope/Girls Hope and Hearne House received
gifts this year. We especially thank the law
firm of Dinsmore & Shohl for once again
serving as the host site for all of the gifts.
AK Steel Legal Department
Barbara J. Howard Co. LPA
Cincinnati Bar Association
Cincinnati Paralegal Association
Eberly McMahon LLC
Fifth Third Bank
Frost Brown Todd LLC
GE Aviation Legal
Goodson & Company LPA
Graydon Head & Ritchey LLP
Katz Teller Brant & Hild
Kohnen & Patton LLP
Kroger Law Department
Procter & Gamble Legal Division
Reminger Co. LPA
Rendigs Fry Kiely & Dennis LLP
Santen & Hughes
Taft Stettinius & Hollister LLP
Thompson Hine LLP
Ulmer & Berne LLP
Union Savings Bank
Wood Herron & Evans LLP
A host of other firms
and individual donors
Welcome to YLS
Kelley L. Allesee
Damon C. Barhorst
Lucas R. Blocher
Zachary Charles Brown
Christie A. M. Bryant
Elise R. Elam
James T. Fondriest
Jennifer L. Frank
James T. Hoffman
Michael B. Hurley
Cory J. Ingle
Tegan E. Kahner
Travis L. Kane
Patricia O’Malley Kirsch
Kelli A. Kleisinger
Justin L. Knappick
Bryan James Kreyling
Jeffrey P. Meineke
Lindsay N. Mongenas
Maggie M. Nestheide
Emma L. Scharfenberger
Ericka H. Spears
Colleen M. Tersmette
Michael R. von Ansbach-Young
Scott A. White
Andrew M. Woods
Not a Perfect Fit?
When your clients have needs that don’t match up,
refer them to the CBA Lawyer Referral Service.
Our panel of attorneys includes a range of expertise.
The LRS staff can connect your client to a CBA member who can help.
• More than 280 attorneys available
• Matches can be made near the client’s work or home
• No fee for using the service
• First half-hour of consultation is $30 or less
• Clients can call (513) 381-8359 during business hours
or visit www.cincybar.org
Interested in being part of the LRS panel? Contact Jamie
Shiverdecker at [email protected] or at (513) 699-4013.
www.CincyBar.org Lawyer Referral Service
Since 1943, the CBA has offered referrals for the public, serving
hundreds of clients each year. Let us help your client find a perfect
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continuing legal education
For more information about upcoming CLE events, contact Dimity Orlet at (513) 699-1401 or [email protected].
For a complete schedule or to register for a program online, see the CBA’s CLE Calendar under CLE at www.cincybar.org.
Local Attorney’s Work Recognized by
Real Property Law Committee
Noel Morgan of the Legal Aid Society of
Greater Cincinnati was named the CBA Real
Property Law Practitioner of the Year during
the CBA Real Property Law Committee’s
annual CLE program in December. Morgan
was recognized for his exceptional work on
behalf of Legal Aid clients, including the successful resolution of several significant and
precedent setting foreclosure-defense cases.
The CBA Real Property Law Committee
hosts the Real Property
Law Institute, a full-day
CLE program with plenary and breakout sessions
focusing on significant
issues in real estate law,
each year. The event draws
over 100 attorneys every
year.
p Morgan enjoys the moment with his
wife, Lydia.
Never
Closed
u Presenter J. Michael Debbeler
of Graydon Head & Ritchey
LLP educates practitioners with his case law update, a perennial
favorite of institute attendees.
q Over 120 practitioners learned about the latest developments
in real estate law at the 2011 Real Property Law Institute.
p Chair of the
CBA Real Property
Law Committee
Gail Hersh Jr.
congratulates
Morgan.
CLE On Your
Schedule
Earn up to six hours of
Ohio CLE credit online at
http://cincy.fastcle.com
Spring Immigration Law CLE Set
Immigration Law Primer: What Non-Immigration Law Practitioners Need to Know
Presented by the CBA Immigration Law Committee
Thursday, March 8
9 a.m. to 3:55 p.m.
Up to 5.75 Hours CLE Credit, including 1.0/Ethics
Full & Half-day Registration Available
This program will provide attorneys practicing in employment, business, family
and criminal law with a better understanding of immigration law issues impacting
their clients.
For more information or to register, visit www.cincybar.org or call (513) 699-4028.
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Ohio Metro
CLE
Akron
Toledo
Dayton
Cincinnati
Cleveland
& Columbus
Bar Associations
online
An out-of-office experience
continuing legal education
Upcoming CLE Seminars
Visit www.cincybar.org to register and for a complete calendar, updates, and full program agendas
February 10 • 8:45 a.m. – 4:50 p.m.
Advanced Estate Planning Institute
@Westin Hotel, 21 E. Fifth St.,
Downtown Cincinnati
6.5 Hours
$285 CBA Member ($380 Non-Member)
February 14 • 9 – 11:45 a.m.
Video Replay
Professionalism, Ethics & Substance
Abuse Instruction
2.5 hours, including 1.0/Prof., 1.0/Ethics & .5/Sub.
Abuse
March 14 • Noon–1 p.m.
No Brown Bag
Custody Law
1.0 hour*
$15 CBA Young Lawyer
March 20 • 2 – 4:45 p.m.
Video Replay
Abuse Instruction
Abuse
February 15 • Noon–1 p.m.
No Brown Bag
Probate Law
March 22
UCC
1.0 hour*
March 23 • 9:15 a.m. – 12:30 p.m.
Women in the Legal Profession
February 29 • Noon–1 p.m.
No Brown Bag
E-Discovery & Collection from HandHeld Devices
1.0 hour*
March 8 • 9 a.m. – 3:55 p.m.
Immigration Law
3.0 hours
March 28 • Noon–1 p.m.
No Brown Bag
Zoning Changes: “There Oughta Be a
Law”
1.0 hour*
April 11 • Noon–1 p.m.
No Brown Bag
Court of Appeals : “If It’s Not in the
Record, It Didn’t Happen”
1.0 hour*
April 17 • 9 – 11:45 a.m.
Video Replay
Abuse Instruction
Abuse
April 19
Elder Law
April 20
Domestic Relations Instititute
@ Hyatt Regency, Downtown Cincinnati
April 20 • 9 a.m. – 12:15 p.m.
It’s Not Just Mediation: Preparing for
a Resourceful Resolution
3.0 hours
April 24 • 9 a.m. – 4:30 p.m.
eDiscovery with John Mallery
full & half day option
Up to 5.75 hours, including 1.0/Ethics
*New Lawyer Training credit available.
CBA Continuing Legal Education Registration Form
Please register me for the following CBA-sponsored CLE events:______________________________________________________________________________________
_____________________________________________________________________________________________________________________________________
Name____________________________________________________________ Firm_________________________________________________________________
Address________________________________________________________________________________________________________________________________
City________________________________________________________________________ State______________________Zip_______________________________
Phone______________________________________e-mail______________________________________________
Enclosed is my check in the amount of $________________________ made payable to the Cincinnati Bar Association.
Please charge my credit card the amount of: $_____________ q MasterCard q Visa q Discover q American Express
Card Number________________________________________________ Exp. Date_______________________
Cardholder Signature_________________________________________________________________________
Pre-registration prices shown. Walk-in registrations subject to an additional fee.
Advance registration is advised. Walk-in registrations will be limited to available seating space.
Information is subject to change. Call (513) 699-4028 to verify information.
All programs held at the CBA unless otherwise indicated.
Register
Online at:
www.cincybar.org
Mail or fax to:
CLE Department
225 E. Sixth Street, 2nd Floor
Fax: (513) 381-0528
Phone:
(513) 699-4028
Cancellation Policy: Please refer to individual program brochure for cancellation policy.
Special Law-Student Pricing: $50/Full-day programs; $25/Half-day programs; Free/programs less than 3 hours.
www.CincyBar.org l
BL AC - C BA
ROUND TABLE
The BLAC-CBA Round Table works to expand opportunities for minorities in the legal profession. For more information
about the BLAC-CBA Round Table, contact LaDonna Wallace Smith at (513) 699-1392 or [email protected].
Round Table Celebrates the Season
The local legal community, along with sponsor and host Frost Brown Todd LLC,
welcomed law school students home for the holidays at the annual BLAC-CBA Round
Table Minority Law Student Holiday Reception in December. Students and attorneys alike enjoyed coming together to meet in a social setting at Frost Brown Todd’s
beautiful new office space. Clockwise, Managing Partner George Yund welcomes guests
on behalf of Frost Brown Todd; Kim Amrine, left, Richard Moore, Georgetown Law
student Danielle Sparks and Kasey Bond are all smiles at the festive reception; Marty
Dunn, left, John J. Williams, UC Law student James Hux and Round Table Co-Convener, the Hon. John A. West are a force to be reckoned with;
Judge Fanon Rucker, UC Law student Kamiikia Alexander
and University of Kentucky law student Vanessa Rogers get
to know one another; CBA President-Elect Anthony Reiss,
left, University of Toledo law student Jamar King, University
of Indiana Maurer Law student Jason Stuckey and Dale Stalf
enjoy the surroundings.
Ethical Quandary?
February Ethics Hotline Attorneys
Noel Morgan (513) 362-2837
Harry J. (Chip) Finke IV (513) 629-2731
The members of the CBA Ethics & Professional Responsibility Committee listed above are
available to help you interpret your obligations under the Ohio Rules of Professional
Conduct. Questions posed should be framed hypothetically and should relate to your
own prospective conduct. The committee also accepts requests for written opinions.
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This section features current news and events of interest to the local legal community. News items may be submitted
to Julie Kemble Borths at (513) 699-1391 or [email protected].
CALL Class XVI Begins Sessions
The 2012 Cincinnati Academy of Leadership
for Lawyers (CALL) class includes 33 attorneys.
Now in its 16th year, CALL focuses on practical,
professional and ethical issues facing lawyers in
Greater Cincinnati. Sessions are held monthly,
January through May. All sessions have interactive components and address areas relevant to the
development of professionalism and leadership.
2
0
0
7
2012 CALL Class XVI
Legal Community News
2012 CALL Steering Committee
The CALL program is possible thanks
to the efforts of the steering committee:
Alan H. Abes, Chair
Hon.Timothy S. Black
Hon. Stephanie K. Bowman
Douglas R. Dennis
Tawanda J. Edwards
Neil Fairweather
Katherine M. Lasher
Hon. Dwane K. Mallory
Bridget G. McGraw
Robert A. McMahon
Lisa G. McPherson
John C. Norwine
J. Phenise Poole
Sean L. Rhiney
Ann K. Schooley
Carl J. Stich Jr.
Calvin S.Tregre
David T.Wallace
Joseph W. Borchelt
Reminger Co. LPA
Michelle L. Burden
Shawn P. Burton
Freund Freeze & Arnold LPA GE Aviation
Gregory L. Cecil
Keating Muething &
Klekamp PLL
Matthew C. Curran
Luxottica Group
Caroline H. Dettmer Slye Meghan D. Donnellon
Legal Aid Society of
Donnellon Donnellon
Southwest Ohio
& Miller
Benjamin G. Dusing
Anne Barry Flottman
Wood & Lamping LLP
Julie A. Gibson
The Procter & Gamble Co.
Jason D. Groppe
Blank Rome LLP
James D. Houston
Ulmer & Berne LLP
Kimberly E. Jones
Laurie A. Lamb
U.S. District Court - SD Ohio Beckman Weil
Shepardson LLC
Jesse R. Lipcius
Ulmer & Berne LLP
Elizabeth (Lisa) S. Loring
Freking & Betz LLC
Daniel J. McCarthy
Manley Burke LPA
Jarrod M. Mohler
Robbins Kelly
Patterson & Tucker
Maura L. Moran
Brian P. Muething
Cincinnati Children’s Hospital Keating Muething &
Klekamp PLL
Allison Bisig Oswall
Flagel & Papakirk LLC
Bryan E. Pacheco
Christine S. Ricci
GE Aviation
Andrea D. Rose
Katherine A. Ruwe
Graydon Head & Ritchey LLP The Procter & Gamble Co.
Louis C. Schneider
Kohnen & Patton LLP
Blake P. Somers
Santina O. Vanzant
Union Savings Bank
Steven M. Wesloh
John Mark Williams
The Law Office of John M.
Williams, LLC
www.CincyBar.org Carrie A. Shufflebarger
Thompson Hine LLP
Patrick M. Woodside
Nicholas A. Zingarelli
Peck Shaffer & Williams LLP Zingarelli & Lawrence LLC
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member/firm news
Take Your Adversary to Lunch
just leave the knives on the table
“I was a bit trepidatious…
but it turned out just
great. We didn’t talk
about any of the cases we
have going. Which made
the lunch that much more
enjoyable.”
John C. Greiner, Graydon
Head & Ritchey
Take Your Adversary to
Lunch 2011 Winner
Cincinnati Bar Association members are encouraged to
invite an adversary to lunch between Feb. 1 and March 9,
2012, and then enter for a drawing of two gift cards to a
downtown restaurant: one for the member and one for
the adversary. Details are below. Awards include:
First prize: One set of $75 gift cards
Second prize: One set of $50 gift cards
Third prize: One set of $25 gift cards
“It became apparent that
we share common values
that motivate us in our
chosen areas of practice.
We should all get to know
each other a little better.”
John P. Curp, Solicitor,
City of Cincinnati
Take Your Adversary to
Lunch 2011 Winner
Name:_________________________________________
Adversary’s Name:_______________________________
Address:_______________________________________
Address:_______________________________________
__________________________________________
__________________________________________
E-mail:_________________________________________
E-mail:_________________________________________
Restaurant Name:________________________________ Date of lunch:___________________________________
You may copy this form and mail it to the address below OR e-mail this information to [email protected]
Attorneys may submit up to five entries; one for each separate lunch attended during the period February 1 to March 9, 2012. One entry per lunch (not per adversary).
Entries must be received by Monday, March 12, 2012. Incomplete or duplicate entries will be rejected. To submit an entry: Fax (513-381-0528) or mail this form to Cincinnati
Bar Association, Maria Palermo, 225 East Sixth Street, Cincinnati, Ohio 45202 OR email the above information to [email protected]. Take Your Adversary to Lunch is
sponsored by the Professionalism Committee of the Cincinnati Bar Association.
l
This section features current news and events of interest to the local legal community. News items may be submitted
to Julie Kemble Borths at (513) 699-1391 or [email protected].
Attorneys Focus on Community Service
The CBA Community Service
Committee hosted its 2nd annual professionalism CLE, Beyond Pro Bono
— Lawyers & Community Service, in
December. The seminar concluded with a
reception featuring face-to-face meetings
with representatives from local non-profit
organizations.
Thanks to These Groups Who Shared
Their Missions at the Reception
In M emoriam
John M. Tate
April 10, 1944 – Dec. 24, 2011
ProKids
Pro Seniors
Talbert House Fatherhood Project
National Vitiligo Foundation
t Judge Timothy Black
moderates a panel
discussion during the
CLE seminar.
q Attorney Mary
Cleveland shares
information about
the National Vitiligo
Foundation.
Gregory A. Ruehlmann Sr.
Oct. 21, 1955 – Dec. 26, 2011
John H. Burlew
Feb. 21, 1948 – Dec. 28, 2011
The Cincinnati Bar Association
honors these members of the legal
community who have recently died.
Please contact Kathy Schmidt at
(513) 699-1390 or at kmschmidt@
cincybar.org if you are aware of a
death to be listed in an upcoming
issue of the CBA Report. We also
regularly publish obituaries in
the magazine. Please let her know
if you would like to write an
obituary about a deceased member,
preferably within three months of
the attorney’s death.
2012 MEMORIAL SERVICE
THURSDAY, MARCH 22 – Noon
You are cordially invited to attend the Annual Memorial Service of the Cincinnati Bar Association
Courtroom of the Honorable Steven E. Martin
Hamilton County Courthouse – Room 340
1000 Main Street , Downtown Cincinnati
The service will honor the following members of our legal community who passed away in 2011:
Kenneth B. Baylen
Richard M. Goehler
Paul D. Naylor
John M. Tate
Vincent H. Beckman
Victoria L. Gray
John G. Patten
Paul J. Theissen
John H. Burlew
H. Fred Hoefle
Genevieve H. Pennington
Albert Wettstein
Joseph M. Coffaro
Kenneth D. Jameson
John K. Rose
Leon L. Wolf
Harvey D. Cohen
Richard Lyle Martin
Gregory A. Ruehlmann, Sr.
Hon. Robert A. Wood
Virginia B. Espohl
Robert C. McIntosh
Richard F. Shaw
Robert W. Worth
Thomas W. Flynn
Richard K. Mittendorf
J. Mack Swigert
A reception in the Cincinnati Law Library will follow. RSVP no later than Thursday, March 15, by contacting
Kathy Schmidt at 699-1390 or [email protected]. Paid parking available at 8th & Main Streets
www.CincyBar.org l
member/firm news
If you are a a Cincinnati Bar Association member and you’ve moved, been promoted, hired an associate, taken on a
partner, received a promotion or award, gotten married, had a baby, or have other news to share, we’d like to hear from
you. News of CLE presentations and political announcements are not accepted. Generally, the CBA Report will not print
notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, etc.). Notices are printed at no
cost, must be submitted in writing (preferably by e-mail) and are subject to editing. We also request a current, highresolution, directory-style photo. Items are printed as space is available. News releases regarding lawyers who are not
Cincinnati Bar Association members in good standing will not be printed. We publish news about our members. Submit
items to Julie Kemble Borths at (513) 699-1391 or [email protected]. For address changes, contact Andrew Wells at
(513) 699-1409 or [email protected].
Charles H. Pangburn III
recently was appointed
vice president and general
counsel of UC Health, the
healthcare system that
includes UC Physicians,
University Hospital, West
Chester Hospital, the
Drake Center and the
Pangburn
Lindner Center of Hope.
He formerly served as chief legal officer for
UC Physicians.
Sarah N. Smith has
joined Schachter, Hendy
& Johnson PSC as an
associate attorney. While
in law school, she worked
as a law clerk for the firm.
Smith earned her J.D.
summa cum laude from
Salmon P. Chase ColSmith
lege of Law and her B.A.
magna cum laude from Ball State University. She is currently admitted to practice in
Kentucky. Her primary areas of practice will
include product liability, medical malpractice
and personal injury.
Allison Kropp, an attorney in Dinsmore LLP’s
Cincinnati office, was
recently elected to the
Beech Acres Parenting
Center’s Board of Trustees. Beech Acres Parenting Center is a nonprofit
organization that serves
Kropp
families and children in
the Cincinnati area by providing education,
support and guidance. Kropp is a member of
the corporate department and the non-profit
organizations practice group and family
wealth planning practice group. Her practice
includes advising tax-exempt organizations
on a variety of issues, as well as estate planning, trust and estate administration, and
probate law. Kropp advises clients on tax
issues relating to these practice areas, and
has experience in helping non-profit organizations develop and maintain charitable
planned giving strategies.
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Emma Scharfenberger
has joined Graydon Head
& Ritchey LLP as an
attorney in the business
and finance client service
department. While in law
school, Scharfenberger
completed an externship
within Fifth Third Bank’s
Scharfenberger
legal department and also
worked for two other Cincinnati law firms.
Scharfenberger is a 2011 graduate of the UC
College of Law where she earned her J.D. She
served as the executive director of the Moot
Court Honor Board and participated in the
Volunteer Income Tax Assistance program.
She also earned a B.A. in political science and
philosophy from the University of Kentucky
in 2008.
Peter Canavan Newberry
has joined Eric Deters &
Associates PSC. His practice focuses on all types
of construction law cases
and the representation of
builders, homeowners,
homeowners associations
and others in the conNewberry
struction field. He also
serves clients with complex litigation, family
law, medical malpractice and legal malpractice needs. He is licensed in Ohio, Kentucky
and Pennsylvania.
Jeff Hanneken has joined
Graydon Head as an
attorney in the firm’s
litigation client service
department. His practice
is focused primarily on
bankruptcy and commercial litigation. He is
a member of the firm’s
Hanneken
banking and financial
services industry group and the commercial
real estate industry group. Hanneken is a
2010 graduate of The Ohio State University
Moritz College of Law where he earned
his J.D. and served as a member of the law
review. He also earned a B.S. in journalism
with a minor in political science from Ohio
University in 2007.
Cory Ingle has joined
Dinsmore as an associate
in the intellectual property practice group. Ingle
concentrates his practice
on intellectual property
law with a focus on patent
preparation and prosecution. His patent prosecuIngle
tion experience includes
technologies in the fields of chemical, materials, and mechanical sciences, with extensive
experience in textiles and disposable paper
products. Prior to joining the firm, he served
as a law clerk at Hasse & Nesbitt LLC. Ingle
earned his J.D. from The Ohio State University Moritz College of Law and his B.S. in
Chemical Engineering from the University of
Notre Dame.
Lett
Tersmette
Ryan S. Lett and Colleen Tersmette have
joined Frost Brown Todd’s Cincinnati office. Lett, who practices business litigation,
attended The Ohio State University, Moritz
College of Law, where he graduated magna
cum laude, Order of the Coif, and was awarded the American Bankruptcy Institute Medal
of Excellence. In addition, he was an associate
editor and business editor of the Ohio State
Law Journal, and volunteered as a member
of the Pro Bono Research Group. He was a
2010 summer associate. Tersmette is part of
the intellectual property practice group. She
focuses on patent prosecution in a variety of
areas, including mechanical, electrical, and
medical devices. She attended UC College of
Law, where she graduated summa cum laude,
Order of the Coif, and served as an associate
member of the Cincinnati Law Review. Prior
to joining the firm, Colleen was a law clerk
at Maginot, Moore & Beck LLP and General
Electric.
member/firm news
Keates
Walden-Jacobs
Two associates have joined Jackson Lewis
LLP. Sarah E. Keates focuses her practice on
representing management in employment
litigation and providing advice and counsel
on employment issues. Prior to joining the
firm she clerked for the Hon. Joseph E. Kane,
U.S. Department of Labor, Office of Administrative Law Judges. Keates received her
B.Mus., with distinction, from the University
of Oklahoma and her J.D. from the UC College of Law. Prior to joining Jackson Lewis
LLP Anitra Walden-Jacobs was an associate
at Dinsmore & Shohl LLP. Her practice is
focused on representing and counseling employers with respect to a variety of workplace
issues including in cases arising under the
ADA, ADEA, COBRA, FMLA, and Title VII.
Walden-Jacobs received her B.A. from Wittenberg University and her J.D. from the UC
College of Law. Mary Burns, trust
counsel at Johnson Trust
Company, is now serving
as chair of the board of
directors of the Women’s
Crisis Center of Northern Kentucky, which
provides crisis intervention services to victims of
Burns
domestic violence, sexual
abuse, and rape. Its mission is to lead the
community in the social change needed to
end domestic violence, rape and sexual abuse.
Burns is also on the board of The Carnegie
Visual & Performing Arts Center and is currently vice president of the Cincinnati Estate
Planning Council.
Neil Fairweather of Fairweather LLC Attorneys,
received the 2011 Liberation Volunteer Award
from the Kentucky Rescue and Restore Coalition
at its annual Domestic
Violence Conference in
Lexington. The Liberation
Award is presented anwww.CincyBar.org nually to a volunteer who has made significant contributions in local efforts to combat
crimes of human trafficking. Since 2009,
Fairweather has worked with the Women’s
Crisis Center in Northern Kentucky and its
affiliate, P.A.T.H., the Partnership Against
the Trafficking of Humans, to increase public
awareness and to provide pro bono legal services to victims of human trafficking.
Feichtner
Georgiton
Doug Feichtner, Peter
Georgiton, and Brian
Tent have been named
partners at Dinsmore
LLP. Feichtner has a
broad-based civil litigation practice that focuses
primarily on toxic tort
and product liabilTent
ity defense. Licensed in
Ohio and Kentucky federal and state courts,
he has prepared corporate witnesses in
“bet-the-company” cases and worked with
individuals in the areas of industrial hygiene
and toxicology. Feichtner’s trial experience
includes assistance in the representation of
an international manufacturer of chemicals,
flavors, and fragrances in multiple jury trials
to verdict in Ohio and Missouri. Feichtner
is active in the community, serving on the
Blue Ash YMCA Branch Board and as coach
of the Madeira High School swim team.
Georgiton is a commercial litigator with a
focus on insurance coverage. He represents
insurers nationwide in all phases of claims,
advising on coverage issues and best claimshandling practices. Georgiton also represents
insurers in coverage litigation, including bad
faith cases. He is a co-chair of the Employment Subcommittee for the American Bar
Association’s Insurance Coverage Litigation
Committee. Georgiton additionally handles a
wide variety of commercial litigation matters,
including contract disputes, products liability
litigation, closely-held corporation litigation,
and business tort litigation. He is active in
the community, serving as president of the
board of School House Symphony, immediate past chair of the Friends of the Cincinnati
Pops, and co-chair of the Cincinnati Pops’
Lollipops Concerts Committee. Georgiton
also serves on the Board of the Cincinnati
Symphony Volunteer Association. He is a
Fellow (Class of 2011) with the Ohio State
Bar Foundation, and he is a 2010 graduate of
the Ohio State Bar Association’s Leadership
Academy. Tent is a member of Dinsmore’s
intellectual property practice group and
helps clients create value by protecting the
technical innovations in their products and
services. He is admitted to practice before the
United States Patent and Trademark Office
and has extensive experience in the preparation and prosecution of domestic patent
applications. Tent also manages a portfolio of
international patent applications, collaborating with attorneys throughout the world to
help clients secure their intellectual property
rights abroad. Tent is a member of the firm’s
professional development committee.
Basic
Mediation
Training
February 2 & 3, 2012
9:00am - 4:30pm
n Improve negotiation and
conflict resolution skills
n Identify resolution strategies
and models of mediation
n Cover ethical issues and
how using mediation can help
Register online today:
BeechAcres.org/Mediation
CLE credits are available
for Ohio attorneys.
l
member/firm news
Welcome New Members
The CBA Board of Trustees has approved the following for membership:
Attorney
Kelley Allesee
Lerner Sampson & Rothfuss LPA
Tegan Kahner
Damon Barhorst
Travis Kane
Lucas Blocher
Nat’l Underground RR Freedom Ctr
Kevin BoBo
Zachary Brown
Hamilton County Public Defender
Christie Bryant
American Family Insurance
Joseph Carroll
Keith & Associates PLLC
Scott Conley
Elise Elam
Samuel Ezenagu
Law Office of Samuel Ezenagu
Eric H. Kearney
Company Kearney LLC, Ohio State Senator
Jan-Michele Kearney
Sesh Communications
Patricia Kirsch
Kelli Kleisinger
Dressman Benzinger LaVelle psc
Justin Knappick
Patrick Kramer
The Law Office of Patrick Kramer
Jeffrey Meineke
US Army Corps of Engineers
Lindsay Mongenas
US Department of Labor
James Fondriest
Maggie Nestheide
Beth I. Silverman & Assoc. LLC
Jennifer Frank
Emma Scharfenberger
Graydon Head & Ritchey LLP
Christopher Futscher
Ernst & Young LLP
Ericka Spears
Gary Harris
UC Health
Colleen Tersmette
Ronald Hodgeman
Michael von Ansbach-Young
Michael Hurley
Blank Rome LLP
Cory Ingle
l
Income strategies,
account consolidation,
investment management
Bryan Kreyling
Bruce Favret
James Hoffman
Ready for retirement?
Michael W. JarroldGrapes, CFP®
Francis J. Niehaus,
JD, CFP®
Kevin J. Walsh, CFP®
Financial planning & investments
since 1987.
Scott White
Andrew Woods
Deloitte Tax LLP
4820 Glenway Ave., Cincinnati, OH 45238
www.niehaus3.com • (513) 471-9600
Securities offered through Securities America, Inc., Member FINRA/SIPC
Advisory services offered through Securities America Advisors, Inc.
Niehaus Financial Services, LLC & the Securities America companies are
independent entities.
Letter To the Editor
Re: The article entitled “A Step Back” in the November 2011 CBA Report
We read with concern our former colleague’s criticism of the recent decisions
by the First District Court of Appeals
to include citations within the body of
our opinions. Apparently, the author
continues to ignore the preferred writing
practices promulgated by the Supreme
Court of Ohio. That court has chosen
to include citations within the body of
its opinions. And the Supreme Court
of Ohio could not have been more clear
when it codified this concept in its 2011
Writing Manual and directed in Section
11.2 that: “Citations of authority belong
in the body of an opinion. Do not follow
the practice of relegating all citations to
footnotes.”
We must express our disappointment
with the printing of the article itself. We
found it somewhat surprising that the
Bar Association, which has had such
a good and long standing relationship
with this court (including judges from
here as former CBA trustees, speakers,
Bench-Bar committee members, one as
a long-term member of the Professionalism Committee, and another as a former
president of the Association), would
allow, albeit inadvertently, a former judge
of this court to commit such a possible
breach of professional decorum. Understanding that public service does not
provide any immunity from criticism, to
allow anyone to use the CBA Report as
a vehicle to attempt to degrade a court
does not in our view coincide with the
high purposes and important goals of the
Cincinnati Bar Association.
For the bar’s information, as the
court explored the use of citations in the
opinion body at joint session, we learned
that the First District was the only Ohio
appellate district not following the
example of its Supreme Court. In deference to our unwillingness to be the only
district “marching to a different drummer,” we, upon thoughtful reflection and
after lengthy discussion, decided to “step
back” to coincide our citation process
to be the same as every other appellate
court in Ohio.
Further, as a “step forward” for
litigants and lawyers viewing opinions in
the digital age (especially when reading opinions on small-screen electronic
devices), we noted that locating citations
as a link within the body of the opinion
itself is a far superior method for a reader
to view that information, rather than
requiring that electronic reader to scroll
back and forth on multiple occasions
while reviewing a decision. In this electronic age, citations within the body of
an opinion add to its actual “readability.”
We would be remiss if we did not
comment on the so-called “readability
index” cited in the article. Apparently
the judges of this court, as well as the
members of the bar practicing before it
— and even the litigants whose cases are
decided here — are capable of reading at
the hypothetical grade level of 17.4 (that
of a first-year law student) as cited in the
article’s example. Not a single motion
for reconsideration has been filed based
on the grounds of lack of“readability.”
The entire bar should be aware that our
releases are not designed to be mainstream secular reading for relaxation.
It is not the goal of the court to present
matters of the greatest importance to the
litigants involved, or decisions that may
impact how a particular legal principle is
to be applied throughout this district, in
a style that assures someone else’s version
of“readability.” Rather, it is the goal of
this court to render decisions that are
factually and legally correct, in accordance with solid legal precedent, and to
do so in a timely fashion. If that means
a longer paragraph or a quotation from
controlling law, so be it.
We remain committed to providing
opinions that are legally sound and hold
true to favoring substance over format.
We hope this resolves this matter. In
these times of strident and often baseless attacks upon the judicial system
itself, the bench and the bar must stand
together in order to protect our beloved
and globally revered American system of
justice. With resolution of this issue, we
hope to continue to work together with
the CBA on more productive matters in
the future.
Judge Lee H. Hildebrandt Jr.
Judge J. Howard Sundermann Jr.
Judge Sylvia Sieve Hendon
Judge Penelope R. Cunningham
Judge Patrick T. Dinkelacker
Judge Patrick F. Fischer
Found!
The Cincinnati Bar Association welcomes the newest members to Lawyer Finder.
Check it out at www.CincyLawyerFinder.com
Lewis G. Gatch
Gerald R. Leshner
Scott M. Schweiger
Leanne R. Montgomery
Donald K. Swartz
Want to get found? Contact Maria Palermo at [email protected] or (513) 699-1402
www.CincyBar.org l
memorials
This section honors the lives of deceased members of the local bar. For more information about this service,
please contact Kathy Schmidt at (513) 699-1390 or [email protected].
Joseph M. Coffaro
1938-2011
Joseph M. Coffaro died at home unexpectedly at the age of 73. Joe was a first generation American, born in Cincinnati in 1938. His parents emigrated from Sicily with
Joe’s three siblings. Joe was raised in Price Hill where he attended St. Theresa of Avila
elementary school. He then worked his way through Elder High School, where he was
a proud member of the Panthers’ first-ever undefeated, un-tied football team in 1954.
Joe earned a pharmacy degree from the University of Cincinnati, and then worked as a
pharmacist by day and attended Salmon P. Chase College of Law in the evenings, earning his law degree in 1969.
Joe’s contemporaries at Chase included Norbert A. “Nick” Nadel and F. David J. Albanese, both of whom later became judges in Hamilton County. Joe, a lover of music,
was known to accompany them on excursions to Cleveland for traveling performances
of the New York Metropolitan Opera.
In 1967, Joe married Joleen Cullen, a nurse at Good Samaritan Hospital. They had
three sons, Paul, Steve, and Joe, and the elder Joe instilled in them a strong work ethic
and an appreciation for the value of education. Their middle son, Steve, followed in his
Dad’s footsteps and pursued his own career in the law.
After graduation from law school, Joe partnered with Dave and with Jeff Hoehne,
forming the firm of Albanese, Hoehne and Coffaro. They and others practiced law
together for many years in offices located at the corner of Fourth and Walnut Streets.
Joe had an affinity for anything with an engine, and he loved to tinker with cars and
to build things with his hands. He was often seen driving his motorcycle to work or
parking it at the courthouse on summer days, in a suit and tie and with his briefcase
strapped on the back.
In the 1980s, after Dave Albanese was appointed to the Bench, Joe relocated his
practice to a suburban office near his family and home in Monfort Heights. There,
he maintained a general, solo practice until his retirement in 2006. He helped many
members of the community with their legal matters, and he was well-known at his
Catholic parish, St. Ignatius of Loyola, where he and Joleen were long-time members of
the choir. Joe also sang for many years with Musica Sacra, a local choral ensemble, and
also served as treasurer of that non-profit organization.
Even after his retirement from the practice of law, Joe still had a desire to work and
to remain busy. In addition to growing his beloved tomatoes every summer and continuing to tinker in his basement workshop, he accepted a part-time job as a delivery
driver for a local wholesale florist, delivering orders to flower shops around Cincinnati
and Dayton. He worked right up until the day that he died.
Joe is survived by his wife, Joleen; their three sons, Paul, Steve and Joe; his daughter-in-law, Heather; three grandchildren, Alyssa, Ben and Maria; his two brothers, Pat
and Charlie, and a host of other family and friends.
— Steven C. Coffaro
l
For display and classified advertising  rates for the CBA Report, contact George R. Quigley Sr. at (513) 779-7177 or [email protected].
CBA members receive a discounted rate!
office space AVAILABLE
EXECUTIVE OFFICE available in suburban
law office, convenient to Ronald Reagan Highway. Full service office including Internet and
Lexis Law. Alternative rental arrangements
available. Excellent opportunity for recently
admitted attorney desiring to build a law practice. Call Steve Halper (513) 793-4400.
OFFICE SPACE AVAILABLE at 125 E. Court
Street in downtown Cincinnati. Space consists
of attorney office in 10th floor suite. Includes
receptionist, secretary, library, conference
room, copier and fax. Attached garage
parking available. Call John McClure or Lou
Rubenstein at 513-241-7460
OFFICE SPACE - Tri-County. Make
2012 the year you started your own practice.
Keep the all fees you generate, pay a low
(fixed) overhead, manage your own workflow,
and enjoy a referral network of nine other
attorneys. Get the benefits of being on your
own without the start-up costs of a new
practice. Currently, we have openings for
three attorneys and support staff. If you are
interested in only having a part-time practice
or do not need a full time office, we have
options for virtual lawyers (remote access).
This would allow you to work from home,
affiliate with the firm, and use our office for
meetings. Contact John Cornetet 513-7712444 or [email protected]
MT LOOKOUT SQUARE 1050 Delta, Office
Space lease up to 1500sq ft mthly or L Term,
Pkg, Brk Rm, Conf Rm, Receptionist, Phone,
Fax, Copier, Internet. (513) 842-7996.
POSITIONS AVAILABLE
CLASS “A” OFFICE SPACE IN BLUE
ASH near I-71 and I-275. Well appointed
professional offices. Can accommodate one
or two attorneys plus staff, two conference
rooms, full time reception and phone.
Referrals available from established tax
controversy firm with wide experience in
estate and trust matters. Excellent opportunity
for entrepreneurial lawyer to grow book of
business. Call Tom Utaski (513) 563-4555.
OFFICE AVAILABLE in a historic 3-story
brownstone at 115 W. Ninth. Includes parking,
receptionist, two conference rooms, copiers,
server, phone, internet and more. Call (513)
621-2888.
OFFICE SPACE AVAILABLE at 810
Sycamore Street. Office sharing arrangement
with offices of various sizes. Receptionist (M-F,
8-6 / Sat. 9-1), internet, cable, state-of-the-art
phone system, two (2) conference rooms on
each floor and large, fully equipped kitchen
with balcony. Please contact Kelly Farrish at
(513) 621-8700 or (513) 403-9699.
OFFICE SPACE AVAILABLE at the
Cincinnati Bar Center, 225 E. Sixth
St. Full fourth floor, approximately 7,000
square feet. Additional meeting space available
in the building, so lessee can minimize builtout conference space. Ideal for law firm or
other entity serving the legal community. For
more information, please contact CBA Executive Director, John C. Norwine, (513) 699-1400,
[email protected].
Is your advertising on
Advertising Index
Beech Acres Parenting Center............................ 27
Center for Resolution of Disputes........................8
Cincilingua.................................................................... 28
Cincinnati Art Gallery................................................2
Farrell Ph.D. & Associates, Michael T................11
Mort White Bushman CPAs..................................17
Niehaus Financial Services..................................... 28
classified ads
target?
LITIGATION ASSOCIATE. Medium-sized,
AV-rated firm concentrating in general
civil litigation in Cincinnati and Northern
Kentucky seeking associates with 2 or
more years of general litigation experience.
Candidates must be highly motivated and
willing to assume immediate responsibility for
legal research and writing, assisting with trial
preparation, taking and defending depositions,
and all aspects of case development. Strong
academic credentials and litigation experience
preferred. Send resume, recent writing sample
and law school academic transcript to: Hiring
Partner, FREUND, FREEZE & ARNOLD,
105 E. Fourth St., Suite 1400, Cincinnati, OH
45202.
Phillips Law Firm, Inc. located in a
charming historic building in the heart of
Olde Montgomery seeks an attorney with 5+/years of experience. Experience in litigation
practice (commercial, personal injury, and
domestic relations) and non-litigation practice
(business transactions, real estate, and estate
planning) a big plus. Referral work is available.
Compensation is based upon revenue
collected. Benefits and many amenities are
available. Send resume in confidence to:
John H. Phillips, Phillips Law Firm, Inc., 9521
Montgomery Road, Cincinnati, Ohio 45242 or
[email protected].
Professional Services
Lawyers: need help with an
appeal or a jurisdictional
memorandum? Marianna Brown
Bettman, former Ohio state court of appeals
judge, provides appellate consulting services to
lawyers. Marianna Brown Bettman, 400 Pike
Street, Cincinnati, Ohio 45202; (513) 281-0978;
[email protected].
www.legallyspeakingohio.com
Be part of the CBA Report and
the annual Legal Directory.
For advertising information,
contact George Quigley Sr.
at (513) 779-7177 or
[email protected].
One Source Discovery.............................................15
Quintairos Prieto Wood & Boyer PA..................8
Rendigs Fry Kiely & Dennis LLP.......................... 28
www.CincyBar.org l
NON PROFIT
U.S. Postage Paid
Cincinnati, Ohio
Published by the Cincinnati Bar Association
The Cincinnati Bar Center
Permit No. 5415
CHANGE SERVICE REQUESTED
Be sure your information is correct in the
2012-2013 CBA Legal Directory.
Return all forms you received in the mail or
go to www.cincybar.org by Feb. 10

CBA or Pull the Plug? - Cincinnati Bar Association

Transcription

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