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September 2010
PROBATE COURT OUTLOOK OHIO SUPREME COURT RULE UPDATE (Gov. Bar XII) My fellow lawyers. Another summer has passed, and fall is upon us. We at Probate Court are reviewing how we can serve the public, as well as the attorney’s that practice in this court, more efficiently. The court is currently working with CourtView Justice Solutions, our computer software provider, on several "eService" tools to help expedite transactions; such as, eNotification and alternative payment methods. The purpose of these changes is not only to make the probate process more efficient, but to also save money for our taxpayers and the lawyers filing in our court. In addition, we are also reevaluating our attorney fee schedule. It is my feeling that attorney fees should be increased. I am greatly concerned about the misuse of Powers of Attorney, especially when given to those who are nonfamily members. The abuses that are being experienced by the elderly through instruments such as these are increasing. Let me share with you a recent case of four women accused of bilking half a million dollars from a Richmond Heights widow whose husband had been slain. They proceeded to steal funds utilizing a Power of Attorney obtained through persuasion. Be cautious when preparing Powers of Attorney and ask numerous questions. What is the purpose of this document and why? How well does your client know the individual they are giving this power to? Is their spouse and/or children a part of the discussion process? Remember, you are the first line to help prevent senior abuse. Turning now to some items the Supreme Court has recently addressed. The Supreme Court of Ohio enacted an amendment to the Rules for the
Government of the Bar of Ohio (Gov. Bar R. XII) to Appear Pro Hac Vice
before an Ohio Tribunal. The effective date for this amendment will be
January 1, 2011. A A tribunal shall not grant permission to appear pro hac vice to an attorney who has taken and failed the Ohio bar examination, been denied admission without examination, or had an application for admission in Ohio denied on character and fitness grounds pursuant to Gov. Bar R. I within the last five years. Prior to being granted permission to appear pro hac vice by a tribunal, the attorney shall have applied for registration with the Supreme Court Office of Attorney Services, paid an annual registration fee of $100.00, and been issued a certificate of pro hac vice registration. The application for registration shall include the following information: The attorney’s residential address, office address, and the name and address of the attorney’s law firm or employer, if applicable; The jurisdictions in which the attorney has ever been licensed to practice law, including the dates of admission to practice, resignation, or retirement, and any attorney registration numbers; An affidavit stating that the attorney has never been disbarred and whether the attorney is currently under suspension or has resigned with discipline pending in any jurisdiction the attorney has ever been admitted; A statement the attorney satisfies the requirements in Section 2(A)(1)-(2); A statement that the attorney will comply with the applicable statutes, law and procedural rules of the State of Ohio, and the rules, policies, and procedures of the tribunal before which the attorney seeks to practice and will be familiar with and comply with the Ohio Rules of Professional Conduct and the Rules for the Government of the Bar. Let me share additional parts of the amendment: The name and attorney registration number of an active Ohio attorney, in good standing, who has agreed to associate with the out-of-state attorney; any party to a proceeding may object to the motion of an attorney in a manner and method prescribed by the tribunal. I believe that you will share my views that this amendment of Pro Hac Vice Admission is needed. Take care of yourselves and your families. Submitted by: Judge Ted Klammer Lake Legal Views September 2010
August 2010 
Judge
Vincent A. Culotta, Lake County Common Pleas Court
TECHNOLOGY IN THE COURTROOM It Can Be a Good Thing
Recently, there have been several articles and stories in both this publication, as well as the news media, about the negative aspects of technology in the courtroom. It is true that cell phones in the courtroom can be used to secretly snap pictures of witnesses and/or jurors, or that a cell phone can be left on so witnesses ordered to be separated can improperly hear a prior witnesses’ testimony. It is also true that a juror might “google” an issue or “tweet” updates to friends during a trial. I certainly agree that these abuses of technology in the courtroom negatively impact justice. However, inasmuch as I now preside in the “Courtroom of the Future,” I want to share with our Bar Association some of the wonderful technological advances and features now available in Lake County that allow evidence to be presented to a jury in a more effective manner and impact the administration of justice in a very positive way. Trial lawyers of the not-so-distant past were required to present exhibits to jurors the old-fashioned way - by holding up pictures that the jury could barely see; by having jurors pass documents to each other which distracted jurors and/or caused delays in the proceedings; by using blow-ups on easels and having witnesses repeatedly step down from the witness stand to testify about the exhibit and requiring opposing counsel to move about the courtroom in order to observe the witness’ testimony. The technology in our courtroom eliminates the need for any of this. The “Courtroom of the Future” is a completely integrated and controllable audio/video presentation system. Its purpose is to allow courtroom content and evidence to be displayed in a controlled environment. In this environment, the Judge controls all content being presented in the courtroom and can either “Approve” or “Deny” evidence after viewing the evidence electronically at the Judge’s bench. Don’t have a laptop? No worries. The Courtroom of the Future is equipped with various other means to display exhibits. First, the court’s system has its own built-in computer. Thus, any exhibits, including all the examples set forth above, that can be stored on a computer disk, can be run through the court’s computer system and shown throughout the courtroom. The court’s computer network also has access to the internet so that any relevant/admissible information that is online can also be used and displayed. In addition to presenting video/audio recordings through a computer, we also have a VCR, DVD, and cassette player attached to the system that can play these recordings. This enables lawyers to display video tapes and DVDs on every screen and monitor in the courtroom, as well as to present audio recordings through the court’s sound system. The court’s system also has a document presenter, more commonly known as an ELMO, which can be used to present evidence. The ELMO used in the courtroom is not a character from Sesame Street. Rather, ELMO is the brand name of an electronic document camera that works like an overhead/opaque projector, instantly transmitting the image of documents, records, x-rays or actual physical objects to all the screens/monitors in the courtroom. The ELMO is not like a simple overhead projector; instead it not only projects the image around the courtroom but it permits the judge, witnesses, jurors and counsel to comfortably view a piece of evidence from a multitude of vantage points. The ELMO is easy to operate, using buttons that let you zoom in and out, focus, and adjust the lighting on a piece of evidence. The touch of a button permits you to present evidence exactly as it is intended to be viewed, highlighting specific areas of an object and de-emphasizing others. ELMO allows the high-resolution display of both documentary and physical evidence. Almost any two or three-dimensional object that would require magnification can be placed on ELMO for courtroom viewing. The courtroom also includes a camera on the witness stand. This camera enables a witness to place a physical piece of evidence under the camera and to then zoom in and focus on a relevant feature or aspect of the exhibit. As an example, a forensic expert witness can use the camera to illustrate the unique markings on a bullet casing; the very fine tool marks on a cut padlock; a fingerprint located on a piece of glass; or a serial number on a firearm. Again, the video image from the witness camera is displayed directly to the jurors on their monitors in the jury box, as well as throughout the entire court for all to view. The system also features two SmartBoards, the use of which can be very helpful and effective in highlighting certain evidence in a trial. One SmartBoard is located on the main podium for attorneys to use and the other is the actual video monitor next to the witness stand for witnesses to use. A SmartBoard is a computerized chalkboard with a touch sensitive display screen called a whiteboard which allows an attorney or witness to draw directly on the screen using color-coded pens. It can be used to simply draw or write on in lieu of using a chalkboard, easel, or dry erase board which would have to be set up in front of the jury box and which everybody cannot view easily, if at all. It can also be used (and this is how it is really effective) to display an item of evidence from any of the sources previously mentioned to illustrate a point about that exhibit as needed. For example, if a witness is using a map or diagram to explain what occurred, the witness can physically write on the screen which will appear on the map or diagram to show where certain individuals may have been located or to indicate which direction a person or vehicles may have travelled. A witness can also “draw on a photograph” to emphasize a specific part of the photo that is deemed important. Medical records can be displayed on the SmartBoard and attorneys and witnesses can underline or highlight on the screen specific notes or records that they want the jury to consider. A video can actually be paused and then “drawn” on to allow a witness to better explain what is being depicted at that particular point in time or to circle or highlight some portion of the stilled image. Once a witness or an attorney “draws” or “writes” on an exhibit, the exhibit along with the added drawings and/or markings can then be saved, printed, and entered into evidence. This allows the record to clearly reflect a witness’ testimony as it pertains to a particular exhibit and makes it much easier for a reviewing court to understand a witness’ testimony when an exhibit is being utilized to illustrate what occurred. Other technology includes improved assisted listening devices for jurors, a white noise system that is used during sidebar conferences, and a separate pressroom for accommodating the press in high interest cases where the action in the courtroom can be transmitted remotely. Each of these technological advances are positive and improves the quality of courtroom litigation in Lake County. Any attorney that wants to learn more about the features we have available, or that has an upcoming trial and wants to practice using the system prior to the trial is invited and encouraged to contact the court. As long as the court is not in session, anyone, including assistants (it is not necessary that an attorney do this alone) is welcome to try it out. I believe you will find that it truly is quite simple to use. As an aside, despite these technological advances, it is important to note that our Courtroom still utilizes an “old-fashioned,” live court reporter rather than electronic recording devices which are found in some courtrooms today. While this type of court reporting system can become cranky when overworked or overheated (just teasing Mary), the quality of the workmanship created by a live court reporter could never ever be duplicated by a machine.
July 2010 On May 11, 2004, Antonio Bryant Rogers assaulted Shynerra Grant. He burglarized her home and broke her jaw. A year after that beating, he assaulted her again, and then pursued her to the home of a friend where she sought shelter from Rogers. He was undeterred, broke into that home, and shot her to death in the kitchen. As so often happens, it took this tragedy to begin the process of reform to afford juveniles the same protection adults enjoy when their safety is threatened by a fellow juvenile. Shynerra’s mother, Cheryl Boyd-Rucker pushed the legislature to pass "Shynerra’s Law" or House Bill 10. House Bill 10 became effective June 17, 2010, and allows juvenile courts to issue protection orders for juveniles and foster parents. Upon the filing of a petition under the new law, the Court must hear the case within a day and may order ex parte relief. Within 10 days, a full hearing must take place. The Court can issue the order to the respondent who is a person under the age of 18. Interestingly, the Court has jurisdiction until the respondent turns 19 years old. Any person deemed by the Court to be appropriate may file a petition on behalf of a child. A parent or adult family member may file on behalf of a family or household member. Also, any person may file on behalf of another. The petition must contain allegations of one or more of the following criminal offenses or delinquent acts: Felonious Assault Aggravated Assault Assault Aggravated Menacing Menacing by Stalking Menacing Aggravated Trespass A sexually oriented offense Domestic Violence Upon granting the petition the remedies are identical to civil protection orders with the exception that juvenile courts can require a respondent to be placed on electronic monitoring for a period of time with specific conditions, and the Court can order a law enforcement agency to install the device. The respondent may be ordered to pay the cost of the installation of monitoring. If the respondent is indigent, costs may be paid from the Crime Victims Reparations Fund, up to $3,000.00. The Court, at its discretion, may decide to notify the parent of a child to be protected if the petition is filed by a third party, or any other person it deems appropriate. The Court must automatically seal all records of the order upon the respondent’s 19th birthday unless the petitioner provides evidence to the Court that the respondent has not complied with the Court’s orders. If the protection order is not granted, the record will automatically be sealed. If the respondent violates a protection order, the first offense would be a misdemeanor if committed by an adult, and a second offense would constitute a felony of the fifth degree if committed by an adult. The protection order can last five years. Hopefully, the ability to grant protection orders in Juvenile Court will prevent future tragedies of the type that inspired this new law. Unfortunately, recent tragedies have demonstrated that when someone is determined to do evil, a piece of paper, even one that comes preloaded with consequences, will not stop them. At the very least, this new law is another arrow in the quiver of child advocates seeking to protect children from abusive relationships. The Supreme Court website may have forms available to assist in filing. June 2010
Judge Colleen Falkowski, Lake County Domestic Relations Court
LIFE IS AN OPEN BOOK In a recent survey conducted by the American Academy of Matrimonial Lawyers, 81% of those surveyed said they have seen a large increase in the number of divorce cases using social networking evidence. Sixty-six percent of those surveyed said Facebook was the leader in online divorce evidence. Social networking sites include but are not limited to Facebook, Twitter, MySpace, and LinkedIn. With social networking, people say what is on their minds without counting to 10, 20 or 100 before posting. The users of social networking sites forget the general rule of cyberspace: "Once it’s there, it’s there forever." Even though a site, a posting, or a photo is deleted by the user, the deleted information often has already been printed or forwarded endlessly. Furthermore, original site information can be retrieved forensically, if warranted. Social networking sites can be a treasure chest of evidence in a divorce. Did a spouse post a status for himself/herself as "single" instead of "married with children"? Did the new girlfriend rave about her expensive birthday gift from her soon-to-be-divorced boyfriend on her Facebook wall? Who is the same spouse who claims his ability to pay child support is limited. How about the business weekend out of town which turns out to be a three-day romantic cruise to the Bahamas? Very often, it is the current love interest who posts an abundance of information on Facebook or Twitter to broadcast the fun and details of the relationship. The social media photo gallery is often the most incriminating evidence. Photos of the wandering spouse with the current love interest in various venues are the norm. Many divorce lawyers now give explicit warnings to clients about the pitfalls of social networking during a divorce case. Some attorneys encourage clients to take down a site. Other attorneys now insist any social sites of the client be taken down as part of their fee and legal service agreement. Of course, these attorneys also carefully scrutinize Facebook and other social sites of the opposing spouse to collect evidence. During a divorce, a spouse often asks a mutual friend to access the other spouse’s Facebook page or Twitter postings. The bounty of information about the other spouse’s and potential witnesses’ behaviors tells the attorney much about the spouse and potential witnesses. The postings can be used to attack the truthfulness of the person when in court. It must be mentioned, worst of all is when a parent uses the child to access the other parent’s site. Regretfully, I have first hand knowledge this occurs. A trend has emerged as to a spouse’s current love interest posting volatile and/or defamatory comments about the other spouse as to prolonging the divorce, criticizing parenting abilities, and/or lifestyle. These postings can be vicious beyond the pale. Again, remember the divorcing spouses’ children may be "Friends" on the love interest’s Facebook. As a result, the children read the ugliness of their parents’ disintegrating marriage on a posting created through no fault of their own. Among angry spouses and vested love interests, there can be a gargantuan airing of dirty laundry, much to the entertainment or embarrassment of friends and delight of opposing counsel. The days of needing a private investigator may be limited by the social networking explosion. Not to be forgotten in the evidentiary treasure chest is a minor’s own Facebook page. This has been used as evidence in local custody cases. Generally, one parent forbids the child to have a Facebook page; the other parent permits the child to have a Facebook page. As a result, I have viewed Facebook photos of 12 to 14-year-old girls who look like "Girls Gone Wild" outtakes, teens at drinking parties, wild parties, and wild behavior. A child’s Facebook pages can be signs of problems with drugs or alcohol. Facebook photo evidence has also turned up in Lake County custody cases showing a parent’s drug use, drinking binges, or prolific partying. Thus far, in our trials, various Facebook pictures and content have been acknowledged by the user as the user’s. However, authentication of social networking sites is a lurking evidentiary issue. The Wall Street Journal in a recent article, highlighted Facebook’s changes to its policies which reduce what users can keep private. Also, Facebook had technical snafus earlier this year which exposed the private information of users. Two new features of the site have resulted in a public relations debacle. One feature promotes users to share more about their online activities with Facebook; the other feature personalizes other web sites with information about users’ Facebook friends. According to The Wall Street Journal, Mark Zuckerberg, Facebook’s founder and Chief Executive, has been in a lengthy battle with his staff. Staff argues the site should make more information private through default settings. The CEO sees the site data as a potential multi-billion dollar advertising business. The article states the Federal Trade Commission is now looking at how social network sites are using site data. The import of The Wall Street Journal article to my column is this: many Facebook users simply do not understand the default settings of the site, and all the possible site settings. As a result, a user often posts publicly what a user believes was posted privately. In other words, user beware! Social networking sites provide a Generation Y method for opposing counsel to collect evidence. What weight, if any, is assigned to such evidence by the trier of fact is a totally different issue. This column is not to be taken as indicating social networking evidence is more persuasive or credible than any other evidence. In fact, a fair amount of what I have seen during trial is opinion, self-exaggeration, or ravings, which have no evidentiary value. Social networking sites thrive on users who live in the moment and can’t wait to tell others about every aspect of the user’s life. This is our society in 2010. Is privacy fast becoming obsolete?
April 2010
"Avatar Advocates" At a recent seminar focused on science and the courts, I first learned of the "Second Life" phenomenon, which is a virtual environment for social interaction developed in 2003 by Linden Lab. I must admit before the seminar, I had no idea that such a world existed apart from video games. One visit to the Second Life website, www.secondlife.com, and a review of a developing body of scholarly writing on the topic reveals that this Huxleyesque world extends far beyond social networking sites such as Facebook, and its legal implications are startling. What are virtual worlds? It appears that the concept was born in the 1992 novel, Snow Crash, written by Neal Stephen-son. The world was called "Metaverse". Sites, such as Second Life, are incredibly complex computer games referred to as "MMORPGs" or massively multi-player online role-playing games, but these are not games in the traditional sense, and more importantly, these games have sparked real world litigation. Given reports that Second Life has at least 18 million registered accounts and many users are conducting business, teaching, marketing their practices, or campaigning for real world offices via the site, we will see more litigation in the future.To become a part of a virtual world, one downloads a free program and joins the world by accepting the platform owner's Terms of Service. One then be-comes a "resident" and begins to interact with other residents through the use of a digital-self or "avatar." In this virtual world avatars do anything and everything one can do in our real world - socialize, work, marry, divorce, create objects or other avatars, trade, market and sell products and services, buy and sell virtual real property, and form associations, among them religious orders and bar associations - yes, bar associations. Residents retain the copyright for the intellectual property created in this world. There is virtual currency, the "Linden dollar", which is purchased from Linden Lab and used to purchase goods, services, and real estate. One may convert Lindens to U.S. dollars; thus, Second Life entrepreneurs may realize profits from their virtual businesses. But any-where there is property, currency, and personal relationships, there is conflict. The virtual world has spilled into the real world, creating more questions than there are solutions. Can enforceable rights be created in a virtual reality? Who has jurisdiction over Second Life disputes? Law clearly has not kept pace with technology. One writer observed, "The virtual world has reached a tipping point from "play" to "reality". Virtual reality is becoming so realistic that users blur the line between virtual fiction and real life. Actions online have prompted users to react in a very real manner. For instance, in October 2008, Tokyo police arrested a woman whose sudden divorce in a virtual world made her so angry that she killed her online husband's digital persona. The woman accessed the man's account by using his identification and password, and deleted his virtual avatar. Although she was not plotting any real world retribution or murder, she was jailed on "suspicion of illegally accessing a computer and manipulating electronic data. " If convicted she could face real world penalties of a fine up to $5,000 or imprisonment up to five years." 1At least one real world court has been confronted with the question of the rights and obligations of the game developer and the user. Second Life grants to its subscribers full intellectual property rights in what the users create. Users buy, sell, and pay taxes on land they own. In a Pennsylvania case, a user, Mr. Bragg, purchased a number of parcels of land in the virtual world, and he created a profitable business selling fireworks to other avatars. Via an auction site, Mr. Bragg allegedly paid $300 for a region of land that had not yet been released for sale. Since this was an amount below Second Life‟s "cost," the company "confiscated" his land and eventually canceled Mr. Bragg‟s account and dissolved his "virtual assets," claiming that he wrongfully acquired the land through an "exploit." Mr. Bragg filed suit against Second Life's developer, claiming conversion, fraud, unjust enrichment and breach of contract. He claimed damages of between $4,000 to $6,000 in U.S. Dollars. Although the case settled, the court did find that "[w]hile the property [at issue] and the world where it is found are „virtual‟, the dispute is real." 2 Thus, the ultimate question of whether virtual property created for use and exchange in a virtual world is property in the legal sense with attached property rights remain ripe for further litigation.Avatars have also sued other avatars in a real world court claiming copyright and trademark infringement violations regarding a product wholly created and traded within the virtual world. 3Attorneys are using Second Life for everything from rainmaking to providing online legal services. An ABA Journal article, "Fantasy Life, Real Law, "featured a Lake County attorney and educator, Bob Van DerVelde, aka "Justice Soothsayer," who used Second Life as a teaching tool. 4Although Professor Van DerVelde is not presently an active Second Lifer as his current classes are live and not online, he points to the recreation of the United States Supreme Court courtroom on Second Life's "Democracy Island" as an example of the educational uses of the site. Professor Van DerVelde joined forces with a talented virtual world architect from the Netherlands, and a former New York University law school professor, who is now President Obama's deputy Chief Information Officer, to create this place where students can practice "oral" arguments in an interesting setting. Second World is also used by international corporations such as IBM for virtual meetings. Importantly, for lawyers, professional regulations have not kept pace with the technology. Attorneys must bear in mind that in this virtual world there is no expectation of privacy. And once again, there are more questions raised by an attorney‟s use of these sites than answers regarding unauthorized practice of law, multijurisdictional practice, malpractice liability coverage - just to name a few. Ultimately, lawyers and judges will be forced to ad-dress the issue of inheritability of virtual property. What hap-pens to the virtual assets in Second World when the participant dies? What happens to your email address, and more importantly, your email account, when you die? A provocative law review note posits that "[b]y evaluating how [an] email address can be inherited, it will provide guidance on how virtual creations in virtual game worlds may be conveyed or transferred." 5 In 2005, the Washington Post reported the story of the parents of a Marine killed in action who sought access to their son‟s Yahoo email account. Yahoo's privacy policy provided that the email account terminates upon the account holder‟s death, as do the rights to email contents. The company's Terms of Service provides that the accounts are non-transferrable. The parents sought relief from a Michigan probate court, which ordered Yahoo to turn over the account. The author of the law review note argued that "[b]y terminating an account upon the user's death, companies like Yahoo are depriving a decedent's „estate and his successors access to potentially significant intellectual property re-sources. If the deceased had printed out his emails and left them somewhere, the printouts „would be considered his personal property and would have likely become part of his estate. "Similarly, if the emails were stored in the hard drive of his personal computer, the physical object, the computer, would ultimately become a part of his estate as well … The problem in cyberspace is that the ownership of e-information is linked with the ownership of the medium, a server in which the data is stored. Balancing an heir's right to the decedent's estate and an email host's priority of protecting users' privacy must be reconciled." 6 While emails have sentimental or even historic value, many of the artistic creations or products developed by users on Second Life have substantial economic value inside and outside of the virtual world. Undoubtedly, it will fall to lawyers and the courts to chart the course and resolve the disutes in this "brave new world." Second Life may give a second career path to the creative attorney. 1 "Virtual Inheritance: Assigning More Virtual Property Rights," Olivia Y. Truong, 21 Syracuse Sci. & Tech. L. Rep. 57 (2009) 2 Bragg v. Linden Research, Inc. (E.D. Pa. 2007), 487 F. Supp. 2d 5933 Eros, L.L.C. v. John Doe (M.D. Fla. 2007), No. 8:07-CV-01158-SCB-TGW4 ABA Journal, March, 2007. 5 "Virtual Inheritance: Assigning More Virtual Property Rights", supra at 83. 6 Id. at 84 .
March 2010
ECONOMIC RECOVERY AND COURT COSTS I, like many of you, take time to participate on various committees, conferences and study groups with the collective wisdom of the group forming recommendations to the ultimate decider. I am sure there are hundreds of these group reports stored in locked chambers never to see the light of day. Recently, however, I had the opportunity to review some reports of these enlightened committees and wondered how the recommendations were received. December 23, 1994, the Commission to Study the Ohio Economy and Tax Structure issued its Final Report titled, "Taxation and Economic Development in Ohio: A Blueprint for the Future." These Blue Chip Committee members were appointed by the then Governor Voinovich pursuant to legislation created by the Ohio House and Senate. According to the Committee Chairman's letter to the Governor, the report was to "contain recommendations for ways in which government can promote economic growth in the state, while maintaining a stable revenue base now and in the future." "Moreover, it would im-prove significantly the investment climate and play an important role in reestablishing Ohio's growth economy equal to or exceeding the national level. All citizens would benefit with increased income and a stabilization of tax rates in the future." The Blueprint for Reform contained 13 elements which the Commissioner urged to be considered by the legislature and citizens of Ohio. In reviewing the implementation of this Committee's recommendations, it appears that few, if any, have been implemented during the 15 year interlude. One recent publication was the "Report and Recommendations of the Joint Committee to Study Court Costs and Filing Fees" issued in July, 2008, (herein "the Study"). This Joint Committee was created by the Ohio General Assembly to "[tidy the de-termination, assessment, collection, and allocation of court costs and filing fees in criminal actions and in civil actions and proceedings in this state, including the amount of court costs and filing fees paid by the parties to civil actions and proceedings or by defendants in criminal actions… The Committee shall prepare recommendations for any changes that the Committee believes need to be made to the current sys-tem for court costs and filing fees." The Study concluded with eleven (11) recommendations to guide the General Assembly and the judicial branch in the imposition, collection and disbursement of court costs and filing fees. While the entire Report is available on the Ohio Supreme Court web site, two (2) of the recommendations are of particular note: "1. Court costs should be reasonable, nominal and directly related to the operation and maintenance of the court." In part, the committee notes that, "… costs and fees should not be used to fund any special interest, but should be used to fund justice system programs leading to an efficient and effective judicial system. The General Assembly has enacted court costs and filing fees to fund programs not directly related to the overall administration of justice…. Although these programs are all worthwhile, funding them through court costs perpetuates the perception that court costs are, in reality, a tax upon citizens that is not enacted by the General Assembly. Court users should not bear the burden of funding these nonjudicial programs. If a program is meritorious and deserves funding by the General Assembly, such funding should be provided by general revenue funds." "2. Disbursements of costs under the Ohio Revised Code are complex and tax the time and resources of clerks. An increase in court costs results in increased difficulty in collections of those costs. The law of diminishing returns in economics says that as more and more of a variable input is added, a point will be reached beyond which the resulting in-crease in output begins to diminish. The same is true in costs and fees: additional court costs will result in fewer collections. In 1990, the Legislative Budget Office did an analysis showing an increase in court costs of 1% for one program decreases the revenue of other programs funded by court costs by 30%. In addition, an increase in court costs results in more time spent by the court or clerk of court collecting, tracking and disbursing the funds, resulting in increased personnel costs. Unintended consequences also result from increased court costs and filing fees, including the lowering of fines so litigants can pay the costs and a "cycle of crime because, for example, offenders cannot afford to have their driver's license reinstated after a suspension." But since the Report was submitted new and additional costs have been mandated. In traffic convictions, Defendants now pay $39 in state costs, $25 of which is directed to the Indigent Defense Support Fund, plus a $25 bond surcharge also to be remitted to the Indigent Defense Support Fund. The costs are assessed even though the majority of court users cannot avail themselves of the designated service. Add to this, the com-plex distribution of fines, state mandates and the constant changes by the legislature in traffic laws, and the court admin-istrative costs sky rocket. Take the example of a second OVI fine distribution outlined below: One of the biggest challenges is the thought process involved in implementing the legislative changes in ways that make sense to front line staff that assess the costs and accounting personnel who reconcile their assessment of same. There is also considerable collaboration and cost required with the Municipal Court software vendor to properly implement the changes in a computer system that has one set of variables for a particular effective date of legislative changes and another set for other legislative changes involving the same class of offenses. Additionally, the handling of these matters requires stringent internal oversight to satisfy public sector auditing requirements. These funds provide little support to the operation of the court and are not as the Study suggests, "…related to the operation of the court." Funds available for operation of court and its programs are the basic court costs, and special project funds and the IDAT Fund monies. If the inability of the judicial system to impact decisions of the General Assembly remains, cur-rent funds utilized by Judges for assessment and treatment programs will be diverted to other agencies. How do we know Court directed programs are effective? Following is a letter from one defendant that reflects this and I am sure there are many others to Courts throughout the State: "Honorable Judge Allen, I am contacting you for two reasons. First I would like to thank you with all I have for re-storing my life to sanity. The day the Kirtland police pulled me over on Jan 7 I knew my drinking days where over and I felt relief even knowing I was in BIG trouble. That was my 3rd time getting arrested for DUI a life I am not proud of. You sentenced me to 5 days jail 15 house arrest and 30 days SCRAM that keep me dry but then came my treatment at Laurelwood and my introduction to AA. After numerous programs in the past this was my first time being sentenced to 3 AA meetings a week, I felt so at home there I went to 90 meetings in 90 days and today I just returned from being the Chairman of the Northcoast AA group in Willoughby Hills and when I started the meeting with "Welcome my name is ***** and I am an alcoholic" there was no shame. My home life is peaceful, I spend time with my parents and today I make them proud. I was upset at the "Harsh" sentience you gave me but I know that the sentence I felt was harsh has saved my sanity, my marriage, is restoring my relationship with my son as well as my loving parents and the list goes on. So thank you for giving me a gift to share with my loved ones. You also sentenced me to 55 hours of community service, which I did at Lake Farmpark only I didn't stop at 55. I am currently volunteering to give back to the community and am proud of having over 100 hour there and got my wife and 11 yr old step-daughter going as well. We volunteer as a family and are growing closer everyday…."
While a single instance, it reflects the need for courts to maintain the discretion to direct and, as necessary, pay for the cost of programs that will keep others safe on the highways and in their homes. It is easy to see why the legislature views the courts as a deep pocket. The 2008 Supreme Court Report reflects a total of 2,706,130 cases in the Ohio Municipal, County and Mayors Courts of which 82,786 are OVIs. You can do the math as to the income stream generated by the non-operation costs and fines, while recognizing the short falls in funding at all public agencies. But the continued increase of costs by the State will result in fewer collections as the Study reflects. The Judiciary has apparently failed to effectively communicate the impact of these costs to the legislative and executive branches as they continue to use the Judiciary as a funding source even after the Study. Recognizing this article is somewhat longer than you wanted and longer than I intended, I will conclude with a couple more "call to arms." In March, 2009, State Representatives Lorraine M. Fende (D-62) and Sandra Harwood (D-65) introduced HB 103 increasing penalties for those threatening, harming or killing a Judge. This legislation was responsive to the terrible incident involving Judge Michael Cicconetti and his family as well as other incidents to the judiciary around the State. The legislation passed out of the Ohio House on 10/6/09 in a bi-partisan vote of 91 yeas, 4 nays. To date, no hearings have been held as of this writing by the Senate Judiciary-Criminal Justice Committee. I also suggest your attention to the Ohio House Joint Resolution 9 which would permit a request to change the age of retirement for the Judiciary from 70 years to 75 years of age. The vote of the public is necessary as Article IV § 6, Ohio Constitution currently states that: "(C) No person shall be elected or appointed to any judicial office if on or before the day when he shall assume the office and enter upon the discharge of its duties he shall have attained the age of seventy years." I encourage you to address these issues to your friends and the associations of which you are a member and the study groups in which you participate so that we can maintain a strong and independent judiciary and as is reflected in the comments in the Study by U.S. Supreme Court Chief Justice William Howard Taft is 1926: "The real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a fair hearing by independent courts to each individual. …But if the individual in seeking to protect himself is without money to avail himself of such pro-cedure, the Constitution and the procedure made inviolable by it do not practically work for the equal benefit of all. Something must be devised by which everyone, however lowly and however poor, however unable by his means to employ a lawyer and pay court costs shall be furnished the opportunity to set fixed machinery of justice going." February 2010
One Year on the Bench After 30+ years of standing before the bench, I now find myself sitting behind the bench. Wow! What a difference. To say this new seat is awe inspiring would be a gross understatement. The first thing I noticed was that the judicial bench lies at the bottom of the funnel of justice. We judges are waiting for you lawyers to place everything into the funnel until eventually the case drops onto our desk requiring our involvement. Your work is what brings the case to us and your efforts are the key ingredient to the success of moving the case through the system toward resolution. I thought I would try to tell you what you can do to facilitate the process of moving your cases through the system. I consulted with our court personnel and the following is a list of suggestions to help the wheels of justice continue to grind smoothly. These suggestions and thoughts apply to our courtroom and other judges may not agree but believe. 1. Be prepared at all stages of the proceedings. This includes the case management conference and pre-trial as well as trial. You should know your case. It helps the court and may even impress your opponent. 2. Be a professional. You worked too hard to become an attorney to start to act unprofessional. Anger, impatience, rudeness, being late, and being unprepared are never acceptable but clearly de-mean yourself, your profession and, most importantly, your clients. 3. Look like a lawyer. Our court requests all lawyers to dress accordingly. It seems like a small request but one you should follow. It is surprising how much respect can be achieved when you put forth the effort to look like you are proud of your profession and yourself. 4. Communicate with your opponent before you file your motions. You should remain civil throughout this process. Rambo was great for Sylvester Stallone but won't help you, or more importantly, your client. 5. State specifically, in motions and pleadings, the relief that you are requesting from the court. The court does not have the ability to read minds nor does it wish to search through the entire file to determine what you are seeking. For example, if you are asking for judgment on a note, do not ask for interest "at the rate as specified in the note." Do the calculation yourself and present the court with a specific percentage. 6. Unless what you are filing is of an emergency nature, please refrain from providing "courtesy copies" to the court. The court usually receives filings from the Clerk's Office within one to two days after they are docketed. As such, these "courtesy copies" are unnecessary and a waste of your client's money, not to mention trees. 7. If you are unable to resolve a discovery dispute with opposing counsel, please bring it to the court's attention promptly. You arguments will be better received if you do not wait until the eve of trial. 8. Settle your lawsuit. Work with your opponent to arrive at and participate in meaningful settlement efforts. No one knows how a trial will conclude but you sure know how a settlement will end. 9. Find out what the court expects of you and then deliver. Some courts prepare an Order of Procedure. Learn what that judge requires. A call to other attorneys or to the court will allow you to get answers about trial issues, pleading requirements and, if all else fails, ask the judge. The time to ask these questions is before trial. 10. Get to know the court's staff. The Bailiff can answer your questions pertaining to courtroom procedures, courtroom computerization, jury issues and foreclosures. 11. In our court, the role of the staff is as follows: The Court Scheduler is responsible for the court's docket. The scheduler manages the calendar, continues cases where needed and notes settlements or dismissals on any and all hearings or cases before the court. For any action requesting immediate relief, you should notify the Court Scheduler and the issue will be addressed. Staff Attorneys research and review all dispositive motions, appellate decisions, replevins, cognovits, protective orders and those issues needing immediate attention by the Judge. The Court Reporter is present for all in court hearings. Make sure your exhibits are marked prior to trial or hearings. Plaintiff marks exhibits with numbers and defendant marks exhibits with letters. 12. Perhaps most important is to remember to take time out of your busy schedule to spend quality time with family and friends. A healthy and fulfilled personal life will allow you to focus and act on the previous points I was struck by a story I recently read from Edward Kennedy speaking about the importance of family. He said, I remember my brother Jack at the Cape in 1961 just before he went to Paris to see de Gaulle and then to Vienna to see Khrushchev. Late in the afternoon we walked over together from his house to my father's house. There was a heavy fog coming in, and it was cool and getting dark. As we walked out across the lawn Caroline came out of my father's house crying. She came down off the porch and ran over to Jack. He sort of held her and talked to her with great tenderness. Just then the kitchen door opened up and someone called out, Mr. President, they want you on the White House phone they said it's important. And Jack said, Caroline, I'll be back in just a moment. Let me take this phone call. Jack took the phone call and then we all went into the dining room together. As we sat down there was a silence at the table and I could feel that Dad for some reason was uneasy and edgy. And then he said, Jack, I saw what happened outside. Caroline was in tears and came out. You had a call from the White House. I know there are a lot of things on your mind about meeting with Khrushchev and your trip abroad. But let me tell you something: Nothing that will happen during your Presidency will be as important as how Caroline turns out. And don't forget it. I think we can all learn from those words. Quality time spent with family and friends is never wasted, and in fact, it is what keeps us focused in every area of our lives. Don't forget it!
January 2010 Greetings and salutations - Happy New Year to all and safe journeys in the upcoming year! The beginning of a new year makes us think about the future. Recently, I was the presenter of a "professionalism" CLE on the use of social networking, and its technological implications to the practice of law. In order to present, I needed a working definition what defines "professionalism" in today’s world. After significant research I concluded that "professionalism" is best summarized as the pursuit of best practice. I googled "best practice" and came up with many definitions, mostly from computer science and technology genre. This was gleaned from a computer services company: "Best practice is a technique or methodology that, through experience and research, has proven to reliably lead to a desired result. A commitment to using the best practices in any field is a commitment to using all the knowledge and technology at one’s disposal to ensure success." Satisfied with the definition, I applied it to this assignment, i.e., what are best practices in a world of technological real time communication? I refer you to Facebook and a YouTube posting - "Do you know, future technology 2009." http://www.youtube.com/watch?v=jpenfwiqdx8&feature=fvw The facts therein are stupefying. In addition, I went to the Facebook website. The following facts were obtained from it: More than 300 million active users (50% of active users) log on to Facebook on any given day. The fastest growing demographic is those 35 years old and older. The average user has 130 friends on the site. More than 8 billion minutes are spent on Facebook each day, worldwide. More than 45 million status updates appear each day. More than 2 billion photos are uploaded to the site each month. More than 14 million videos are uploaded each month. More than 2 billion pieces of content are shared each week. More than 45 million active user groups exist on the site. There is a reasonable probability if something is happening, someone is uploading it, creating instantaneous evidence! Twenty hours of video are uploaded every minute on You Tube. An example was recently discussed at one of my Criminal Sentencing Commission meetings. The legislature is debating several "sexting statutes," since fourteen-year-olds who send provocative pictures of themselves on Facebook to their significant others are presently subject to prosecution for distributing child pornography. If a recipient posts a picture on their "wall" it automatically posts to an average of 130 "friends," who may then disseminate it to 130 of their friends, and thus to millions of Facebook users. How many counts of child pornography would we be dealing with? How many parents are "friends" with their kids on Facebook, and would be in possession of "kiddie porn?" We have a twentieth century legislative and judicial system dealing with a twenty first century information highway. I use Facebook as the example but there are several hundred other social networking sites. 1. The following questions come to mind: How do we keep a jury from being contaminated? Should our rules be modified to accommodate the YouTube video that the jury will look at on their iPods? How do we prevent jurors from looking witnesses or defendants up on Facebook, or attorneys checking jurors for unsuitability? How do we keep witnesses from communicating to the next witness in the hallway vie text or facebook? How do we control the admission and authenticity of data when everyone under fifty relies on Wikipedia and the world-wide web for all their facts? (For those of you who do not know, Wikipedia is a self-user sponsored site where people can write whatever they want about something, and others can audit it.) During trial, participants conditioned to research data to support their conclusions are using multiple web sources, some accurate, some not, each weighted and evaluated differently based upon a user’s underlying bias. The honor system does not work, and it is impossible to insure jurors’ integrity, when our system of evidence is designed only to present "admissible evidence," not all evidence. Jurors and witnesses are known to research dockets to see if defendants have a criminal record, or use a blog to determine if a civil defendant has a poor reputation for consumer practices. One recent case involved a juror who texted a question about the trial to her cousin, a lawyer. A mistrial was declared. What is the consequence of a juror or witness doing his or her own research? The result for the juror or witness, in his or her mind, is an accurate verdict, not a tainted trial. What is evidence? How do we authenticate it? How do we insure the integrity of the process? How can the Rules of Evidence accommodate a Facebook page if the defendant does not admit he is the author, or if it was created by the victim’s family to incriminate him? How do we validate YouTube uploads? Should judges be allowed to research the reliability of medical testimony through Pub Med, another medical research online database, to come up with a better, more informed result as to expert testimony? Whether we like it or not, jurors, witnesses and judges are doing so. This scenario questions the very foundation of the role of evidence in a trial. How can our justice system continue to function in slow motion given this data? The reality is that our case management guidelines expect a typical case turnaround to be twelve months at the trial level, twelve months for an appeal, and, at this point, over four hundred days in the Supreme Court of Ohio. How do we stay relevant and resolve cases in a manner which preserves the integrity of due process and the basic guarantees of a fair trial? The trial attorneys and the trial judges are on the front line. We must confront these issues at the trial court level and on appeal. We must have a critical review of our Rules of Evidence and procedure, and become comfortable with this "brave new world." Everyone under thirty-five is using the web as their primary source of communication, data gathering and learning. How can we try a case if we do not understand what the participants are doing? How can a witness’ credibility be evaluated if you do not know the questions to ask as to where he got his information? How can we solve these issues if we do not even know they exist? How can we, as a legal system, stay relevant? The answers are up to all of us. I respectfully submit the concept of best practice is relevant here. Thank you for your consideration, and Happy New Year. 1. Judge O’Toole can provide legal networking sites if requested or contact her on Facebook.
Anyone appearing in the Painesville Municipal Court will inevitably be present when a Hispanic individual will be brought before the Court on a charge of No Operator’s License, an unclassified misdemeanor offense since October, 2009. Oh yes, I have heard the street talk jokingly referring to the probable cause for No Operator’s License as D.W.M. ("Driving While Mexican"). I estimate our court handles an average of 10 cases a week; nearly every one of the defendants being an illegal Latino immigrant. I realize the topic of illegal immigration is a fervent and controversial topic, particularly with the residents of eastern Lake County. There are arguments and positions on all sides of this issue. Some want the immediate deportation of these illegal immigrants, others steadfastly assert their presence is needed to fill vacant positions in the nursery and factory business, yet others are calling for the legalization of immigrants by grandfathering their residency into citizenship. It is not the role of judges to engage in discussion regarding the above respective positions, but the present situation of an increasing Latino population presents critical management issues impacting the law enforcement and judicial system. The paramount issue is determining the identity of illegal immigrants. Obviously, language is the first impediment to an investigatory stop. Most police officers have a rudimentary knowledge of basic Spanish, sufficient for initial questioning, but insufficient to permit even a minimal investigation. Naturally, identification of any suspect is a fundamental aspect of police work. In an attempt to establish identification of a Latino immigrant, it is common practice for the officer to be handed a fraudulent Social Security card, out-of-state driver’s license, or a Mexican driver’s license that has been purchased, at a very high cost, from a forgery business. The police officer confiscates the fake I. D. but has yet to establish the individual’s identity. Some illegals will be honest and give their full, correct name yet, many will give a "half-truth" name. The common practice in the home country of a Latino is to use their first name followed by their mother’s surname (hyphen), followed by their father’s surname. As a fictional example; the full legal name is Jose Ramirez-Garcia. A suspect will often respond when asked, "Como te llamas?" with Jose Ramirez, Jose Garcia-Ramirez, or, truthfully, Jose Ramirez-Garcia. Many have learned the game of giving a police officer their first name and one surname or the other, thereby saving their true identity for another time. The police officer is stymied as a LEADS or criminal background check will reveal hundreds of Jose Ramirez-Garcias, with no other identity factors, except perhaps a date of birth. Local police procedure calls for a booking process at the Lake County Sheriff’s Department only on a serious offense and /or an offense requiring a cash bond. If an individual is charged with an offense such as No Operator’s License, an unclassified misdemeanor, no booking takes place and no photographs or fingerprints are taken. A record of the individual’s identity is never placed in the system. A charge of No Operator’s License does not become a serious misdemeanor offense unless there have been two prior convictions within three years. A "street-smart" Latino is therefore able to escape the enhanced violation, by using the names available to him or her. If unlucky, an attentive police officer may recognize the offender from a previous encounter with the law. Suprisingly, when an illegal immigrant is asked for proof of automobile liability insurance coverage, a high rate of compliance exists because of certain loop holes. The former policy of the Ohio Bureau of Motor Vehicles allowed illegal immigrants to register a car in their names by using a Power of Attorney form, even if they didn’t have a driver’s license. Others simply rented vehicles from individuals who had the legal right to own, register, and insure an automobile. As of December 9th, the judicial and law enforcement system will be facing new issues. The Ohio BMV will be cancelling vehicle registrations whose owner registration does not include a social security number, Ohio driver’s license or an Ohio ID card. In October, 2009, the Bureau of Motor Vehicles issued over 47,000 notices for owners to be in compliance or the vehicle’s registration will be cancelled. Without a doubt, the illegal immigrant will continue to drive. Ohio does not have a mass transportation system as found in the larger cities like Washington, D. C., Chicago, New York, etc. A large population of illegal Latino immigrants in this state need and depend on their automobiles for work and family needs. As the previously issued valid plates and stickers become expired, and the owner is unable to renew, additional arrests and charges will significantly burden the system. These individuals will continue to operate their cars, and without liability insurance. I predict we will see an increase in hit-and-run accidents in order to avoid arrest and possible deportation by the Division of Immigration and Customs Enforcement (ICE). There needs to be a common sense solution. Most legislators in this country suffer from political paranoia when this controversial issue surfaces. Perhaps an idea favored by Senator Charles E. Schumer (D-N.Y.) for a forgery-proof worker ID card, secured with biometric data such as fingerprints will make it easy for employers to avoid undocumented workers and tough sanctions against employers who break the law, thereby leaving no jobs available for illegal immigrants. Although favored by some it has also provoked others to vehemently oppose this implementation. Although this proposal validates the legal immigrants, it does nothing to assist in the identification of illegal immigrants who will remain in this Country. Maybe, in the interest of improving the judicial and law enforcement system it may be time to consider some type of legal drivers licenses for those who illegal but are in the process of applying for green cards and are working and paying taxes. Like the ID cards, as proposed by Senator Schumer, it would provide law enforcement with a genuine method of identification, allow the legal sales of automobiles, with sales tax and title fees being paid, and the legitimate purchase of vehicle liability insurance. The Hispanic population is now the largest minority population in the United States. It is not going to decrease. Somewhere, somehow, the hot-potato issue must be handled by our legislators.
Did you know? ….. 41% of the basic court costs charged to a traffic offender are forwarded to the State of Ohio for disbursement in various accounts; victims of crime, indigent defense support fund, public defender fund, indigent treatment fund and the drug fund. Only 59% remains with the Court for operating expenses. Did you know? ..... As of October 15, 2009, the Supreme Court terminated reimbursement to the funding cities of municipal courts for Acting Judge salaries. Only Visiting Judges, appointed by the Chief Justice, will be paid by the State Supreme Court. (There are no active Visiting Judges in Lake County!) Did you know?..... The American Judges Association, through a White Paper project by President-Elect Mary Celeste (Denver, CO) is challenging the Judicial Canons & Ethics which prohibits Judges from participating in Presidential primaries and caucuses. Judge Celeste’s work will present argument that directives and opinions should not override the constitutional rights of Judges, the same constitutional rights that Judges swore to uphold in their Oath of Office. Best wishes to all for a Happy Holiday Season!
A Lawyer’s Duty of Safekeeping Funds Goes Beyond IOLTA Attorneys know that they must hold their clients’ property separately from their own property. This is accomplished through a client trust account, most commonly referred to as the attorney’s IOLTA account. Many attorneys, however, are still unaware of a completely new provision that was added to the "safekeeping rule" when the Ohio Code of Professional Responsibility was replaced by the Ohio Rules of Professional Conduct on February 1, 2007. Under the new rules a lawyer must also safeguard funds for a third party when the lawyer knows that the third party has a lawful, not frivolous, claim to those funds. Ignorance of the rule could negatively affect one’s good relationship with the client, as well as one’s license and bottom line. The rule provides that "[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client or a third person, confirmed in writing, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive. Upon request by the client or third person, the lawyer shall promptly render a full accounting regarding such funds or other property." What if there are multiple claims upon the funds? The rule further provides that" [w]hen in the course of representation a lawyer is in possession of funds or other property in which two or more persons, one of whom may be the lawyer, claim interests, the lawyer shall hold the funds or other property pursuant to division (a) of this rule until the dispute is resolved. The lawyer shall promptly distribute all portions of the funds or other property as to which the interests are not in dispute." Comment [4] to Rule 1.15 drives home the full import of this rule as it explains that "[d]ivision(e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute." So just what are the lawyer’s safekeeping duties? The question was answered in great detail in an advisory opinion issued by The Supreme Court of Ohio’s Board of Commissioners on Grievances and Discipline. When there is no dispute as to funds, the lawyer must "promptly notify and deliver the funds to which a client or third person is entitled." When a lawyer knows there is a dispute between a client and a third person "who has a lawful claim under applicable law to the funds," or when the lawyer is uncertain whether the third person’s claim is lawful, the lawyer must "notify both the client and the third person and to hold the disputed funds in a trust account until the dispute is resolved…" and must "promptly" deliver the balance of the funds that are not subject to the dispute. When a lawyer knows the third party’s claim is not lawful, the lawyer must notify the client and "promptly" deliver the funds to the client. The advisory opinion further explains that that the lawyer should attempt to resolve any disputes before the funds arrive. But failing that, the lawyer should "encourage the client and the third person to resolve the dispute through discussion", mediation, or arbitration. But the lawyer is cautioned that she or he "should not unilaterally assume to arbitrate a dispute between a client and a third person." In the end, if the dispute is not resolved and "there are substantial grounds for the dispute," a lawyer may resort to an interpleader action. What constitutes a "lawful claim"? The opinion provides six familiar examples for those practicing tort or business law: statutory subrogation rights such as Medicare, Medicaid, and state and federal workers’ compensation; judgment liens or other court orders regarding the specific funds at issue; written agreements between the client and a medical care provider such as assignments or "doctor’s liens"; a letter from the lawyer to a medical care provider promising to honor the client’s agreement to pay the bill out of settlement proceeds, otherwise known as "letters of protection"; health insurance contracts containing subrogation or right of reimbursement clauses; and a creditor’s secured claim that is specific to the funds at issues as opposed to the client’s general unsecured creditor’s claims. Finally, the opinion clarifies the term "knows" as "actual knowledge of the fact in question"; however, "[a] person’s knowledge may be inferred from circumstances." After reading the rule and the Board of Commissioner’s advisory opinion, it quickly becomes apparent that the lawyer’s work is far from done when a settlement is reached with the opposing side. It also is clear that the lawyer’s exposure now extends beyond her or his client even in those situations where the lawyer has scrupulously avoided the practice of giving letters of protection or other assurances of payment that have been found by courts to create a suretyship. Concerns and question as to this new rule were raised by the practicing bar as soon as the rule went into effect and then again after the Board of Commissioners issued its advisory opinion. A special committee of the Ohio State Bar Association was formed to study the rule and make recommendations for amendment. Members of the special committee included attorneys representing the interests of injured plaintiffs, civil defendants, insurance house counsel, physicians, and attorneys involved in disciplinary proceedings along with a representative of the Office of Disciplinary Counsel. After unanimous approval, the committee’s recommendations for amendment were passed by the OSBA Council of Delegates and forwarded to the court. The conflict this rule creates between the attorney and the client is real. The special committee observed that "the law does not require an attorney to search out undisclosed liens and claims, so having a disciplinary rule which arguably requires an attorney to do just that, creates an inherent conflict by pitting an attorney to act against the interests of his or her own client." With the increasing prevalence of certain medical care providers trolling police reports, soliciting new patients who are required to sign assignments mandating payment of the provider’s bill in full before payment of the attorney fees, other bills, and, of course, a settlement to the injured client, the lawyer’s new client may have already potentially signed away an entire gross settlement before the client reaches the attorney’s office for the first time. Another situation faced by lawyers is even more precarious. After the lawyer has entered into a contingent fee contract with the new client, the client then, without consultation with the lawyer, gives an assignment to the medical care provider which mandates priority of payment of that provider’s billing in full ahead of the attorney fee or the client’s recovery. Now the lawyer is squarely pitted against both the client and the medical care provider, as arguably the medical care provider has interfered with the attorney/client contractual relationship and most importantly, the client expects to receive some compensation at the end of the day. As reported by the special committee, this problem is compounded when the attorney attempts to negotiate a reduction of the billing for the client and is threatened with a grievance by the medical care provider attempting to use the disciplinary system as a collection agency. The rule affects business litigators as well. The lawyer representing a distressed business successfully negotiates a settlement of a contract disputes and collects the funds from the settlement. The question then arises, does the lawyer have to act as a collection agency for the client’s creditors? Must the lawyer search out all judgments liens? Must the lawyer then contact the lien holder and hold funds to satisfy the lien holder before disbursing the funds to her client? Relief may be at hand. On August 31, 2009, the Supreme Court of Ohio published for public comment proposed amendments to the safekeeping rule. Under the proposed amended rule the lawyer must have "actual knowledge" of the third party’s interest. Further, the proposed amendments limit the claimed interest to "a statutory lien, a final judgment addressing the disposition of the funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment from the funds or property." Until such time as the court adopts the proposed amendment, lawyers should read the rule, the advisory opinion, and carefully examine their settlement closing procedures accordingly. [1] Rule 1.15(a), Ohio Rules of Professional Conduct. [1] Rule 1.15(d), Ohio Rules of Professional Conduct. [1] Rule 1.15(d), Ohio Rules of Professional Conduct. [1] Rule 1.15(e), Ohio Rules of Professional Conduct.(Emphasis original.) [1] Rule 1.15, Comment [4], Ohio Rules of Professional Conduct. [1] Opinion 2007-7 (12/7/07) is found at http://www.sconet.state.oh.us/Boards/BOC/Advisory_Opinions/2007/op_07-007.doc
[1] Id. at syllabus, paragraph 2. [1] Id. at syllabus, paragraphs 3 and 4. [1] Id. at syllabus, paragraph 5. [1] Id. at syllabus, paragraph 6. [1] Id. at 4-5. [1] Id at 4, citing Rule 1.0(g): Terminology. [1] See Solon Family Physicians v. Buckles (1994), 96 Ohio App. 3d 460. [1] Report of the Special Committee to Review ORPC 1.15 at line 255. [1] The full text of the proposed amended rule is found at
October 2009 POST CONVICTION DNA TESTING IN OHIO DNA analysis of hair, saliva, blood, skin tissue and semen is one of the most significant advances in the history of scientific evidence. Deoxyribonucleic acid (DNA) codes genetic in-formation for the transmission of inherited traits. Constructed into tightly coiled threads, DNA exists in every nucleus of every cell within the human body. The function of DNA is to store all information necessary to create a human being along with all traits unique to that person. Except for identical twins and bone marrow transplant recipients, every individual= s genetic makeup is unique. The collection and analysis of DNA is often referred to as DNA fingerprinting because it is second only to actual fingerprinting in the identification of individuals. The two most common types of DNA tests are Restriction Fragment Length Polymorphism Analysis (RFLP) and Polymerase Chain Reaction Amplification Analysis (PCR). Additionally, there is a newer form of DNA testing called STR testing (Short Tandem Repeat Polymorphisms). To date, DNA test results are admissible in all jurisdictions. DNA samples are considered to be non-testimonial evidence with respect to a defendant= s Fifth Amendment right against self-incrimination. DNA samples are analogous to a photograph or fingerprint identifying an individual. With DNA analysis, forensic scientists can analyze any particular biological specimen such as hair, blood or tissue and identify the person who is its source. This process consists of dividing a DNA sample into fragments, which form a unique pattern, and then matching this A identity profile@ with samples from the DNA database. The sample may come from a variety of bodily fluids and tissue, each providing an equal amount of genetic information. In addition to helping convict offenders, DNA analysis has become a powerful tool to the defense to exonerate those who have already been convicted. Using DNA testing at the post conviction stage is a controversial issue that raises both procedural and substantive questions. DNA testing may establish with a high degree of certainty that the defendant was innocent when the facts show that there was only one assailant and the test shows that the defendant was not that person. In other cases, DNA testing may raise questions about the defendant= s guilt but not be conclusive. Prosecutors generally accept the reliability of the test results but may not necessarily agree on the significance of the result. Ordinarily, claims of innocence are viewed with considerable skepticism and are resisted strenuously on the theory or principal of finality. This is to discourage unworthy post conviction claims and to minimize incentives for criminal defendants or their compatriots to manufacture false exculpatory evidence or to intimidate trial witnesses to secure recantations. It conserves police, prosecutorial and judicial resources and minimizes the burden on witnesses and victims. It also discourages public second guessing and promotes public confidence in the reliability of the criminal process. However, the state has an obligation to free innocent individuals. There is no legitimate public interest in preserving convictions of innocent defendants and continuing their confinement. The public interest in correcting false convictions is as compelling as its interest in avoiding false convictions, which is shown in our adversary trial process. Thus there is a limited ongoing obligation to correct error in view of the constant reminders that the criminal justice process, for all the rights it affords to a defendant, is fallible. With this in mind, the General Assembly in 2003 enacted a set of statutes titled A Post-conviction DNA Testing for Eligible Inmates,@ R.C. 2953.71 through R.C. 2953.83. R.C. 2953.73(A) permits an eligible inmate to submit an application for DNA testing to the court of common pleas. The court then must determine, based on the criteria and procedures set forth in R.C. 2953.74 through R.C. 2953.81, whether to accept or reject the application. R.C. 2953.74(C) provides that a court may accept an application for DNA testing for an eligible inmate, as defined under R.C. 2953.72, when the court determines that, if DNA testing is conducted and an exclusion result is obtained, the results of the testing will be > outcome determinative= regarding that inmate. Specifically, a trial court may accept an eligible inmate= s application for DNA testing only if the following factors are present: (1) biological material was collected from the crime scene and the parent sample of that biological material still exists; (2), the parent sample of the biological material is sufficient, demonstrably uncorrupted, and scientifically suitable for testing; (3) the identity of the perpetrator of the charged offense was an issue at the inmate= s trial; (4) a defense theory at trial was such that it would permit a conclusion that an A exclusion result would be outcome determinative@ ; and (5) if DNA testing is conducted and an exclusion result is obtained, the results of the testing would be outcome determinative. If the court finds that the test would not be outcome determinative, the application must be rejected. Speculation by an eligible inmate is insufficient to support a postconviction DNA testing application. Pursuant to R.C. 2953.73(D), the inmate must provide the court with supporting af-fidavits and other documentary evidence which clearly demonstrates that he or she is entitled to DNA testing, i.e. that an a DNA test exclusion result would alter the trial result. If the inmate fails to convince the trial court that a DNA test exclusion result would change the verdict, the court is under no obligation to accept the application. The trial court must, in its discretion, con-sider how to best use judicial resources. Thus, the trial court decides on whether it is appropriate to proceed with a DNA test. Under these statutes, an A exclusion result@ is defined as an outcome of DNA testing that scientifically precludes or forecloses the inmate from being the contributor of the biological material recovered from the crime scene or crime victim. Additionally, A outcome determinative@ means that had the results of DNA testing been presented at trial, there is a strong probability that no reasonable fact finder would have found the inmate guilty. An inmate is eligible to submit an application if he or she was convicted by a judge or jury of a felony and has at least one year remaining on his or her prison term or is under a sen-tence of death. An inmate is not eligible if he or she has served their prison term or has pled guilty or no contest and the prosecutor disagrees that the inmate should be permitted to obtain DNA testing. If a prior definitive DNA test has been conducted on the same biological evidence that the inmate seeks to have tested, the court shall reject the application. If a court has rejected an inmate= s application for DNA testing, it may not accept or consider subsequent applications. If an eligible inmate submits a DNA testing application, R.C. 2953.75(A) states that the trial court A [s]hall require the prosecuting attorney to use reasonable diligence to determine whether biological material was collected from the crime scene or victim and whether the parent sample of that biological material still exists at that point in time.@ Reasonable diligence as de-fined in R.C. 2953.71(Q) means A a degree of diligence that is comparable to the diligence a rea-sonable person employed in searching for information regarding an important matter in the per-son= s own life.@ If the court concludes that the requested biological evidence no longer exists, it may not accept the application. This is a significant issue since many inmate applications con-cern cases that may be decades old and the evidence either has been destroyed or lost. To determine whether the parent sample of biological material still exists, R.C. 2953.75(A) requires the prosecuting attorney to investigate all relevant sources including, but not limited to: (1) all prosecuting authorities from the original case; (2) all law enforcement authorities involved in the original investigation; (3) all custodial authorities involved at any time with the biological material; (4) the custodian of all agencies; (5) all crime laboratories involved at any time with the biological material; and (6) all other reasonable resources. Ultimately, what constitutes reasonable diligence will depend on the facts and circumstances of each particular case. R.C. 2953.75(A) expressly permits the prosecuting attorney to rely upon information from a crime laboratory involved at any time with the biological material in question. R.C. 2953.75(B) requires the prosecuting attorney to prepare and file with the court a report that reflects what efforts the prosecuting attorney undertook to determine if any biological material still exists. The statute does not require the prosecuting attorney to submit this information by affidavit. Scientific evidence has come a long way since the genetic marker analysis of the 1960's. DNA fingerprinting has developed into a powerful tool to incarcerate the guilty and exonerate the innocent. While hopefully the number of innocent individuals who have been convicted in recent years is very small, postconviction DNA testing offers a method to ensure that the right person was convicted. The criminal justice system has come a long way since allowing DNA evidence in criminal proceedings. DNA database - contributes to the creation of a more accurate criminal justice system. This increased accuracy may ultimately exonerate persons who have been, or who will be, wrongly convicted or, or charged with, a crime. Will assist law enforcement agencies in solving further crimes that have not yet been committed. R.C. 2901.07 is identical in all important respects to the federal statutes at issue. Raises recurring issues of mistaken eyewitness identification (particularly single witness cases), inaccurate serology, untruthful informant testimony. - eyewitness= s assessment of certainty is highly malleable and can be inflated by suggestive identification procedures. - there is little an appellate court can do about factual errors (vice legal errors) - tunnel vision by investigators - causing investigators and prosecutors to discount evidence that does not fit their hypothesis of guilt. Tunnel vision (otherwise known as cognitive biases) - the human tendency to evaluate evidence through the lens of one= s preexisting expectations and conclusions. Police other focus too quickly upon a particular suspect to the exclusion of others, and prosecutors then do the same based on the police investigation. - Adversarial mindset leading prosecutors to excessive partisanship. - overlook or withhold exculpatory or impeachment evidence. - blocking DNA testing or obstinately defending convictions. - threaten excessive charges, lie, or misrepresent facts to pressure or bluff defendants into plea bargains or cooperation deals. - prosecutor= s powers to subpoena, bring or dismiss charges, and strike deals are vast yet not constrained. Appellate and postconviction courts are unable to effectively review claims relating to the unreliable or false evidence supporting a wrongful conviction. Causes of wrongful conviction are complex. Ohio courts are not insensitive to the possibility of wrongful convictions. Often, even years after a conviction, witnesses recant their testimony, additional witnesses come forward, or other new evidence or information emerges that tends to exonerate a convicted defendant. The new ABA model ethics rules propose that when a prosecutor learns of new exculpatory evidence that is material and credible and that establishes a reasonable likelihood that a convicted defendant is innocent, the prosecutor should disclose the new evidence to the court and to the defendant and conduct a reasonable investigation to determine whether a miscarriage of justice in fact occurred. Rule 3.8(g) Further, the model rules would call on the prosecutor to attempt to set the conviction aside if the investigation leads to clear and convincing evidence of the defendant= s innocence. Rule 3.8(h) - Imbler v. Pachtman (1976), 424 U.S. 409, 427 n.25 - prosecutors are bound by the ethics of [their] office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. The legal process holds out little hope for wrongfully convicted defendants, especially in the absence of help from prosecutors. - legal error is much easier to challenge on appeal or in postconviction hearings. - great weight is put on guilty verdicts when they are the outcome of knowing and voluntary guilty pleas or procedurally fair trials - in the interest of finality, it is made exceedingly difficult for a defendant to obtain relief based on the discovery of new evidence, absent procedural error of some kind. Ordinarily, claims of innocence are viewed with great skepticism and resisted strenuously on the theory or principal of finality. - Discourage unworthy post conviction claims and minimize incentives for criminal defendants or their compatriots to manufacture false exculpatory evidence or to intimidate trial witnesses to secure recantations. - conserve police, prosecutorial and judicial resources and minimize the burden on witnesses and victims. - discourage public second guessing and promote public confidence in the reliability of the criminal process. Once a defendant is convicted after a fair trial, there is a strong presumption of the defendant= s factual guilty, which may be impossible to overcome through the judicial process, despite our knowledge that trials are fallible. - Even when a judicial remedy is otherwise afforded, time restrictions or other restrictions may make it unavailable to a particular defendant. - convicted defendants generally lack the resources to uncover new evidence or to follow up effectively on their own. - prosecutors tend to mistrust witness recantations, jailhouse informants who provide exculpatory evidence. The public has now grown accustomed to doubts raised by the results of DNA tests of evidence from old cases. In some rape cases, for example, DNA testing may establish with a high degree of certainty that the defendant was innocent because it is agreed that there was only one assailant and the test shows that he was not the defendant. In other cases, DNA testing may raise questions about the defendant= s guilt but not be conclusive. Prosecutors generally accept the reliability of the test results, but they do not necessarily agree on the significance of the results. (Fn 57) The state and federal government have an obligation to free innocent individuals. There is no legitimate public interest in preserving convictions of innocent defendants and continuing their confinement. The public interest in correcting false convictions is logically as compelling as the public interest in avoiding false convictions, which finds expression in the constitutional design of the adversary process. - The ongoing obligation to correct error is part of what justifies punishment of convicted defendants in the teeth of constant reminders that the criminal justice process, for all the rights it affords, is fallible. DNA analysis of hair, saliva, blood, skin tissue and semen is the most significant advance in the history of scientific evidence. 27 WMLR 1971 (William Mitchel law Review A In the Interest of Justice: Granting Post-conviction Deoyyribonucleic Acid (DNA) testing to inmates. 2001. (Through 6 OHSTJCL 467, fn 22) Deoxyribonucleic acid (DNA) codes genetic information for the transmission of inherited traits. Constructed into tightly coiled threads resembling a helix, DNA exists in every nucleus of every cell within the human body. The function of DNA is to store all information necessary to create a human being along with all traits unique to that human being. Except for identical twins and bone marrow transplant recipients, every individual= s genetic makeup is unique. The collection and analysis of DNA is often referred to as DNA fingerprinting because is it second only to actual fingerprinting in the identification of individuals. The two most common types of DNA tests are Restriction Fragment Length Polymorphism Analysis (RFLP) and Polymerase Chain Reaction Amplification Analysis (PCR). Additionally, the newest form of DNA testing used is referred to as STR testing (short tandem repeat polymorphisms). To date, DNA test results are admissible in all jurisdiction. Thus forensic scientists can analyze any particular biological specimen - such as hair, blood or tissue - to identify the person who is its source. This process consists of dividing a DNA sample into fragments, which form a unique pattern, and then matching this A identity profile@ with samples from the DNA database. The sample may come from a variety of bodily fluids and tissue, each providing the same degree of genetic information. 6 Richmond Journal of law and Technology 27, A DNA Fingerprinting - Justifying the Special Need for the Fourth Amendment= s Intrusion into the A one of Privacy, Spring, 2000. - DNA Identification Act of 1994, 42 U.S.C. ' ' 14131-34 - 42 U.S.C. ' 14151(a) (1994) Over the last few years DNA analysis has become a powerful tool to the defense to exonerate those who already been convicted. Using DNA testing at the post-conviction stage is a controversial issue that raises both procedural and substantive questions. Need to conserve judicial resources by not opening the floodgates to meritless and costly claims. If the evidence against a defendant is overwhelming and DNA evidence did not play a large part in the overall conviction, then the post-conviction testing should not be granted. However, if the prosecution won the conviction on eyewitness identification alone, then post-conviction testing should seriously be considered. With biological evidence such as DNA testing, the courts have found post-conviction testing most suitable and beneficial to all parties involved when the following elements are present: When the identity of a single perpetrator is at issue; The prosecution= s evidence against the defendant is weak and therefor there is an element of real doubt of guilt; scientific evidence, if any, used to obtain the conviction has been impugned; and the nature of bioligical evidence make testing results on the issue of identity virtually dispositive. - do the tests carry any potential for showing exculpatory results. In 1994, Congress passed the DNA Identification Act. (Fn 205). This Act authorizes the attorney general to grant money to states to develop DNA databases. In order for a state to obtain grant money, the state is required to collect DNA from felony sexual offenders. The states may require additional criminals to submit to DNA testing to add to the databank. DNA databanks will grow to be a powerful tool for law enforcement. All of the state databases are in the process of being linked to a national database called the National Combined DNA Identification System (CODIS). Fn 222. Once this process is complete, the databases will be all the more powerful to law enforcement. - operating since 1997 under the direction of the National Crime Information Center of the Federal Bureau of Investigation. The criminal justice system has come a long way since allowing DNA evidence in criminal proceedings. Scientific evidence has come a long way since the genetic marker analysis of the 1960's. Together, a powerful tool has been developed to incarcerate the guilty and exonerate the innocent. With the number of innocent individuals who have been convicted in recent years, there is no just reason why our system should not take advantage of the scientific advances afforded to our society in order to ensure that the right person is convicted. 27 William Mitchel law Review, A In the Interest of Justice: Granting Post-Conviction Deoxyribonucleic Acid (DNA) Testing to Inmates., 2001. [39] As one court explained the biological analysis, A involves determing the specific genetic variations, or > alleles,= in DNA samples at specific sites (A loci@ ) along the DNA thread. The particular variations examined in this case are called short tandem repeats, or > STRs.= They were examined at thirteen loco which have been adopted as a national standard for use in the Combined DNA Identification System (CODIS) established by Congress in 1994. The PCR-based analysis using the thirteen STR loci has been explained by the Supreme Court of New Hampshire as follows: [40] A > At each locus, an individual= s genetic code contains a combination of chemical markers organized into a pattern. These chemical patterns repeat themselves and these repeats can be chemically cut apart from one another . At any particular chromosomal locus, an individual will have a characteristic inherited from each of hisz or her parents, known as an allele. Furether, at any give locus, a person will have DNA with a sp[ecific number of repeat of these alleles from each parent. Thus, for example, a person= s PCR-based STR DNA profiels for a particular DNA locus could contain a ten-repeat allele from his or her mother and a twelve-repeat allele from his or her father. STR testing involves tyhe examination of short repeats and distinguishes between individuals by comparing the number of repeats at a certain loci. [42] *** conversely, a DNA mismatch constitutes conclusive and certain scientific proof that the DNA samples come from different sources. For proving identity, however, as opposed to disproving identity, DNA can never provide absolute, conclusive proof, even though extremely low probabilities of a coincidental match provide a basis for very strong inferences of identity. [48] DNA samples have been held to be non-testimonial evidence with respect to the Fifth Amendment privilege against self-incrimination. A DNA sample obtained from a state prison, pursuant to Ohio Statute requiring the collection of DNA specimens from convicted felons, was physical, rather than testimonial evidence, and thus did not implicate the prisoner= s Fifth Amendment privilege against self-incrimination. The court reasoned that a DNA samples was analogous to a photograph or fingerprint identifying an individual. State v. Bruce, 5th Dist. No. 2006-CA-45, 2008-Ohio-5709, at & [4] FN1 A In 2000, Congress enacted the DNA Act, which required federal authorities to collect DNA samples from individuals in custody and while on probation, parole, or supervised release after being convicted of certain violent crimes. 42 U.S.C. ' 14135a (2000). Under the Act, the Bureau of Prisons collects DNA samples from individuals in the Bureau= s custody, and the probation offices collect DNA samples from individuals on probation, parole, or supervised release. 42 U.S.C. ' ' 14135a(a)(1)(B), (a)(2) (2005). These entities then submit the DNA sampoles to the Federal Bureau of Investigation for inclusion in its [CODIS]. 42 U.S.C. ' 14135a(b) (2005). State v. Holloway, 8th Dist. No. 91697, 2009-Ohio-1613, at &
[8] In 2003, the Ohio Attorney General= s Office began a federally funded program to compare colle4cted DNA samples filed in the Combined DNA Index System (A CODIS@ ) with samples on filed in unsolved criminal cases. In July 2003, the CODIS Administrator of the Ohio Bureau of Criminal Investigation (A BCI@ ) advised Sandusky police that a A candidate match@ had been obtained in the case. According to CODIS, a file sample of DNA from appellant, matches the DNA obtain from the semen sample found in the 1995 rape kit in this case. 2901.07 - [11] Requires DNA testing of certain offenders who have been sentenced to incarceration, without regard to their consent or the existence of any reason to believe that they have cvommitted a crime other than the offense for which they have been incarcerated. [12] All 50 states and the federal government have enacted statutes similar to R.C. 2901.07. Appellate courts reviewing Fourth Amendment challenges to these statutes uniformly have held that mandatory collection of DNA samples from individuals such as Cremeans does not constitutes an unlawful search and seizure, even without individualized suspicion of involvement in some other crime. [13] *** we now add our voice to the growing weight of authority and hold that Ohio= s DNA collection statute does not violate Cremean= s Fourth Amkentment right to be free from unreasonable searches. [16] DNA profiling fits within the A special needs@ doctrine, which permits a search without a warrant or individualized suspicion when the primary purpose of the search goes beyond the ordinary need for law enforcement. [27] *** These courts bypass the special needs analysis in favor of a pure totality of the circumstances or traditional balancing of interests test. *** courts adopting this second analytical approach have concluded that a prisoner= s diminished expectation of privacy, particularly as to his identity, is a key fact that also obviates the need for individualized suspicion of wrongdoing. State v. Cremeans, 160 Ohio App.3d 1, 2005-Ohio-0928, 825 N.E.2d 1124.
September 2009 SENIOR FINANCIAL ABUSE
We have entered into a period of financial catastrophe. Banks, stockbrokers and automobile companies are being bailed out by the government. This condition appears to be worldwide and we are on the verge of a depression. In Lake County, foreclosures are increasing from last year. Having stated all this, suddenly the stock market increases significantly and Merrill Lynch announces the recession is over. What is going on? The seniors have taken a financial hit, we all have. Senior financial abuse is growing. In this type of economic quandary, Probate Court is experiencing grandson’s stealing over $200,000 of their grandmother’s assets. Attorney’s taking over $100,000 of their clients funds. Parents stealing from their children’s estate. Wards co-signing notes and mortgages, which end in default. Seniors that have been financially abused are reluctant to tell their children or attorney that they have been duped. Legislators pass laws without funding. The police departments are more concerned with the investigation of a possible breaking and entering than with a senior who has been financially abused in a reverse mortgage scheme, or who has co-signed on notes, or who has quit claimed interest in their home. We have good police, but it does not seem that senior financial abuse is a critical concern. Perhaps, this is based on proof, age of victims, etc. The San Diego Prosecutor’s office has a separate method of handling both physical and financial senior abuse. Therefore, we as attorneys, have the responsibility to bring justice to people who cannot protect themselves. Perhaps we should petition our legislators to pass more stringent laws against elder abuse and funding. Perhaps they would consider, as in California, a law to have persons over 70 take priority on trial schedules . Progress will occur only if we make it happen. It will not happen as long the legislature keeps passing laws without providing the necessary funds to enforce them.
July 2009 
Judge Karen
Lawson, Lake County Juvenile CourtAs I was riding my bike this morning, I was thinking about what I was doing a year ago. It is a pleasure not to have to worry about where we are going to walk door to door this weekend. However, parades are still in my vocabulary! The Willowick parade was the first weekend in June and I am sure you will all be attending the Mardi Gras festivities in Fairport! By the time you read this, it will be near the end of my sixth month on the bench. Some days it feels like I have been here a lifetime!! Of course, the biggest item on my plate when I took office was the budget. The argument before the Ohio Supreme Court was scheduled for February 19, 2009. The new Chief of Staff, Frank Weiss, the new Director of Administration, Chris Simon, and I crunched numbers, worked 14 hour days, and met with the Board of County Commissioners. We compromised and communicated with the Commissioners. We went to them with accounting transparency. In this economy, when we are all lucky to have jobs, the case demanded to be settled. We got the job done! I would like to thank the Commissioners for their cooperation and willingness to compromise. The staff is learning my philosophy and adapting. I have found a wonderful "team" of folks at the Lake County Juvenile Court and Detention Center. We are public servants. I expect the staff to be kind, courteous, and treat the public with respect. Magistrates Weiss and Ferkol are still in the halls. Magistrates Lyons and O’Leary are part-timers. Jan Bell has returned to Juvenile Court as a Magistrate. She has quite the reputation for filling the Detention Facility! I stole Jason Wuliger from the Prosecutor’s Office. Our goal is to make efficiency our priority. The youth that appear in Juvenile Court are learning that they have choices in life and then consequences that follow. One of the places they are learning that is in our Achievement Docket. It is Thursday night drug court. We recently made some changes to streamline the program and are proud of its success. We have established a Traffic Waiver Bureau. In the most minor traffic cases the juvenile will be able to waive the ticket, as opposed to appearing in court. This will eliminate the need for parents to take off work, and keep children in school where they belong. The bureau will cut down the traffic docket by about 40%. We are also starting a mediation program. Jason Wuliger and Jeffrey Ferkol will be heading up that program. Within our detention facility, we are building a computer lab where the wood shop once was located! Also, with the help of the Master Gardeners, we have planted a garden in the enclosed outside area at the Court. The children in the detention center will weed, harvest, and be charged with the all around caring of the garden! The children will be enjoying fresh vegetables and salads that they grow. There are many more programs to be developed. We are working on a clinical assessment team. This is still in the idea stage. However, we have such wonderful talent at Juvenile Court that we are trying to utilize the trained and licensed personnel to provide services efficiently and spend public funds wisely. I want to thank everyone at the Court for welcoming me as I settle in to my new home! June 2009
Judge Colleen Falkowski, Lake County Domestic Relations Court A NEW APPROACH FOR HIGH CONFLICT FAMILIES The scene is set: Sally anxiously awaits her father’s arrival at 5:00 p.m. She is ecstatic to spend the weekend with him. At 5:10 p.m. Sally’s mother triumphantly declares to Sally “It’s after 5, your father is not here, and the court order says 5:00 p.m. You’re staying with me this weekend.” Sally breaks out in tears just as the doorbell rings. Mom tells Sally to go to her room. Instead, Sally hides in the shadows of the hallway. She hears her father apologize for being late due to an accident on I-90. Mother stridently snaps “You were to be here at 5:00 p.m. You weren’t. You forfeited your visitation.” A heated argument ensues. Dad calls the local police department to enforce his parenting time order. The officers arrive, listen to both parents, and inform Dad the incident is a civil matter and he needs to speak with his attorney. The tensions between the parents are at zenith. A battery of motion filings from both parents concerning Sally follow the incident. As attorneys and judges, we realize the legal remedy of a show cause motion is too little, too late in the world of family law. The parents in my example need timely intervention and decision making to parent their child more effectively. How can this family be helped in the throes of post-decree battles over their child? The answer may be through Parenting Coordination. A Parenting Coordinator (“PC”) is usually an attorney or a mental health professional who has taken the family law mediation courses required by the Supreme Court of Ohio as well as specific courses in parenting coordination. The Association of Family and Conciliation Courts (“AFCC”) has implemented guidelines for Parenting Coordination which are widely used by most courts across the country. For the high conflict family with a shared parenting plan, the PC addresses the parents’ difficulties in implementing the plan on a daily basis. The PC’s authority comes from the Court’s order of referral which authorizes the PC to make certain timely decisions when the parents are unable to agree on their own or through facilitated negotiations. These decisions are necessitated by the mechanics of day-to-day life for which the parents’ boilerplate shared parenting plan is silent. All too often a shared parenting plan does not address the unique circumstances of the particular family. Standard language serves to escalate problems between parents when a plan fails to incorporate a child’s 365-day-a-year sports schedule, music lessons, extended family annual reunions, and other reoccurring events. These are often the areas the PC facilitates negotiation with the parents for a timely resolution of the issue. Please note the PC does not decide who should be the residential parent, if shared parenting should be terminated, or relocation issues. These decisions are rendered solely by the Magistrates and Judge. Parenting coordination is an area where an experienced social worker or mental health professional is highly beneficial. Such a background brings an individual to the table who is accustomed to dealing with the personalities and complex dynamics that lead to ongoing high conflict. Further, such an individual does not come from the adversarial litigation stance of an attorney. I had the opportunity to attend a Parenting Coordination conference sponsored by the Ohio Supreme Court in late 2007. I was most impressed with the skill set the mental health professionals as PC’s bring into the tumultuousness of family law. The overwhelming positive attribute of a PC is that a timely decision is rendered for the family in the event of a dispute. Their lives continue on, hopefully somewhat calmer. Experience has shown it is often small variances from a court order which leads to petty, volatile litigation between the parents. The litigation inflames not just the parents but their immediate and extended families as well. The trash talk regularly occurring within earshot of the children would make Dennis Rodman flee the basketball court. As a result of my belief a PC is a much less adversarial approach for high conflict families, I am pleased to announce that the Domestic Relations Court now has its own Parenting Coordinator. Anna Tyrell has joined the Court and is doing Parenting Coordination. Lake County was the first Domestic Relations Court in Ohio to receive a grant for an in-house Parenting Coordinator from the Ohio Supreme Court. Most importantly, our new program, like mediation, is offered at absolutely no charge to families referred by Court order to the program. For those of you who have worked with psychologists or attorneys who do private parenting coordination, you realize the fees can range from $100.00 to $250.00 per hour per parent. Unlike private parenting coordinators who can be available 24/7, Anna Tyrell is available during the courthouse business hours of 8:00 a.m. to 4:30 p.m. weekdays. The goal of the Court’s new program is simple: to close the umbrella of tension and stress many children live under due to their parents’ need to perpetuate the fight over the children. These parents struggle to remember their child loves both mom and dad, not just one parent. These parents do not recognize their child wants to please each of them and be with both of them. These parents place their own emotional needs before their child and often treat the oldest child as an adult sounding board. One of the Court’s goals is to let children be children, free from worry and turmoil. Another goal is to guide the parents towards the ability to resolve these issues themselves over time.
May 2009
The Tenth Amendment Under Fire An informal poll of colleagues, friends, and acquaintances suggests that the Tenth Amendment is long-forgotten. Yet, the Tenth Amendment, according to Thomas Jefferson, is “the foundation of the Constitution.” The Tenth Amendment to the U.S. Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It was included in the Bill of Rights to further define the balance of power between the federal government and the states. No other issue dominated the deliberations of the founders as much as this. British oppression had made the founding fathers fearful of unchecked centralized power. The founders were concerned that the new federal government might seek to exercise powers not granted, and the states might not be able to exercise fully their reserved powers. Ratified in 1791, the Tenth Amendment embodies the general principles of federalism in a republican form of government. Federalism is the constitutional division of powers between the national and state governments and is regarded as one of America’s most valuable contributions to political science. It is the constitutional equilibrium between the general and the state governments; the balance of which “forms a double security to the people. … Indeed, [the federal and state governments] will both be prevented from overpassing their constitutional limits by (the) certain rivalship which will ever subsist between them,” according to Alexander Hamilton. According to James Madison, the father of the constitution, “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concerns the lives, liberties, and properties of the people.” As Thomas Jefferson stated, the states are not subordinate to the national government, but rather the two are “coordinate departments of one simple and integral whole.” The federal government was created by the states specifically to be an agent of the states, not vice versa. This political system of federalism worked well until around the beginning of the 20th Century. State sovereignty markedly eroded under presidents and congresses comprised of both major political parties. That erosion has exponentially accelerated in the last two decades. Extreme spending programs, bailouts, the states being threatened and forced to accept federal bailout dollars, the accelerated creation of money out of thin air by the Federal Reserve, unfunded federal mandates, and the nationalization of banks and other corporations, are examples of the continued buildup of power within the federal government at the expense of the states and the people.
The Tenth is possibly the most important amendment ever written to the Constitution, yet it is nearly never enforced. Federalism, and other safeguards, are built into our lawmaking process to prevent willful encroachment on our constitutional rights. We must restore the balance of liberty in this nation, that is, the balance of power between the states and the federal government. What action can states or the people take? The last time the states asserted nullification of federal laws was 1832, and the tension between the states and the federal government ultimately resulted in the Civil War. Hopefully, history will have taught us something and the issues this nation now faces will be addressed peacefully before those forces become so extreme no other choice is possible but violent conflict It is the duty of all Americans to diligently and jealously guard the U.S. Constitution and all of its guarantees. Voting is not enough. Americans must be informed of how we are being represented, advise our representatives of our will and dismay, and be ready to remove from office those who would tread upon the very foundation of our nation. All Americans should be concerned that the Tenth Amendment is ignored by the federal government, which has been assuming additional powers not granted to it by the Constitution. We must return to our federalist form of government. The time is now to bring needed political pressure on Congress and force it to obey the Constitution. April 2009
JUDICIAL DECISION-MAKING In my view, a good judge is one who possesses judicial temperament, i.e. he or she responds, with circumspection, to the circumstances, aware of his or her personal and philosophical values, and renders a decision by application of relevant legal principles which must necessarily guide his or her analysis. There are many factors that can influence the process of judicial decision-making. To the layperson, judges simply and mechanically apply stable legal principles to a given set of facts. Nothing could be farther from the truth. As Justice Cardozo eloquently pointed out: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in [William] James’ phrase of ‘the total push and pressure of the cosmos,’ which, when reasons are nicely balanced, must determine where choice shall fall.” The Nature of the Judicial Process. (1921). Of course, judicial decisions are fundamentally rooted in legal precedent and statutory authority. However, “[g]eneral propositions do not decide concrete cases.” Lochner v. New York (1905), 198 U.S. 45, 76 (Holmes, J., dissent). As Cardozo’s statement underscores, life experiences necessarily shape the manner in which a judge approaches a given case as well as the process by which he or she analyzes information. Regardless of the unique personal values and experiences a judge brings to the bench, I believe she must always take care to maintain her moral compass. A judge must be able to utilize the wisdom gained from her experiences, both personal and professional, in service of justice without tainting the judicial process through an overly personal or subjective approach toward her role. In short, a judge must possess judicial temperament. With this in mind, the bedrock of my personal and professional values comes from my family. While helping my father through a recent illness, I thought about the principles he instilled in me and my four brothers while growing up. My father was a professor at Purdue University in Indianapolis. He frequently gave us mini-lectures on ethics and the value of hard work. “You’re only as good as your word” led the moral compass. “Honesty and integrity will earn you respect.” “If you don’t have respect, you have nothing.” My brothers taught me a lot about life. I quickly learned you should never hit anyone bigger than yourself…Unless you can run faster than they can. Likewise, you cannot let someone push others around just because they are bigger. Surviving life in a large family developed my quest for justice. My father-in-law, Judge Ray Rice, taught me first-hand what the term “Honorable” really means. He was a well-respected lawyer and judge for more than 30 years. He impressed his professional philosophies on me and my husband, Judge Ron Rice. He emphasized it is shortsighted to sacrifice your integrity over a current case or client. Soon after a case is over, the issue is irrelevant and the client is gone, but you are still working with the same opposing counsel. I am truly grateful someone helped me channel my early enthusiasm. I continually appreciate my husband’s personal and professional support and guidance. Judge Wyatt McKay taught me that a prosecutor should always “wear the white hat” and “do the right thing.” While I was an assistant prosecutor, he reinforced that trying a case is not about winning; it is about justice. His philosophy was to always let the criminal process err on the side of the defendant. I determined it would be unfair to take advantage of an opposing counsel who was out of his element in the criminal justice arena. A criminal defendant should not pay for the failings of his attorney. Since being elected to the appellate court bench, I have observed first-hand that judges who legislate from the bench do a great disservice to the judiciary. While judge-made law is an ever-present reality of life, it must be forged with the goal of creating logical consistency and symmetry in the system at large. When a judge simply renders a decision based upon her own personal standards of justice and morality, she not only forsakes established restraints placed upon her discretion but exhibits a fundamental disrespect to her office and the judiciary as a whole. Although the law draws its essence from human experience, this does not imply a judge has the moral or legal authority to engage in outcome determinative analyses premised upon his or her personal conceptions of justice.
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Judge
Theodore Klammer, Lake County Probate Court
Judge Colleen O'Toole,
11th District Court of Appeals
Judge Michael Cicconetti, Painesville Municipal Court
Judge
Richard Collins, Lake County Common Pleas Court
Judge
Ted Klammer, Lake County Probate Court
Judge Eugene A. Lucci, Lake County Common Pleas Court