1 Diane Citrino Attorney of the Month Emerson Thomson Bennett Law Firm of the Month PRSRT STD U.S. POSTAGE PAID BOLINGBROOK, IL PERMIT NO. 1818
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3 Vol. 1 No. 3 Attorney at Law Magazine Cleveland 3
4 From the Publisher Welcome to this issue of Attorney At Law Magazine for the Cleveland Metropolitan area. This month we are fortunate to feature Diane Citrino as our Attorney of the Month. Diane joined Giffen & Kaminski, LLC in the fall of 2014 as a partner. She has litigated housing and employment discrimination cases for over 25 years and is a former regional director for the Ohio Civil Rights Commission. Currently, Diane serves as chair of the Ohio Advisory Committee to the U.S. Civil Rights Commission, a life member of The Eighth District Judicial Conference, a member of the House of Delegates of the American Bar Association, the Federal Bar, and the Ohio Women s Bar Association. This month, I d also like to introduce Emerson Thomson Bennett as our first Law Firm of the Month. Managing partner, Roger Emerson shared his insight into the intellectual property firm he co-founded. I hope you enjoy. I would also like to thank Kathy Dugan, librarian and chief administrator of the Cleveland Law Library, for sharing her knowledge and expertise in the use of verdict and settlement databases for evaluating cases prior to acceptance on a contingency basis. As we go forward, we will be including more feature stories and profiles on local lawyers and judges. In addition, contact me directly if you have a suggestion for a feature story or if would like to participate in the content of our magazine. Thanks for stopping by, Jim Shultz CONTRIBUTING EDITORS Joshua P. Grunda, Esq. Worker s Compensation Erin Brown Immigration Law Brian F. Lange Esq Medical Malpractice Borbala Banto, CPA Practice Management Laszlo Szilagyi, CPA Practice Management Marc Dann Consumer Litigation Ira Krumholz Commercial Real Estate James Jim Shultz, Publisher Cleveland Edition (815)
5 Attorney At Law Magazine is published by: Target Market Media Publications Inc. Editorial Table of Contents Ken Minniti President & CEO of Target Market Media Publications, Inc. Executive Publisher/ Editor in Chief, Attorney at Law Magazine Howard LaGraffe Vice President Caitlin Demo Editor James Shultz Cleveland Edition Publisher Francine LaGraffe Proofreader Yolieth Sanchez Graphic Designer Domonique Mayhawk Market Development Coordinator Haley Freeman Dave Kinsey Katherine Bishop Tea Hoffmann Kathleen M. Dugan Contributing Writers Studio Z Photography Photography 6 The Remnants of Intentional Tort By Joshua P. Grunda, Esq. 8 Verdict and Settlement Databases Your Tools for Evaluating Cases By Kathleen M. Dugan 10 The Potential of Foreign Investment: The EB-5 Program By Erin Brown 12 Recent Challenge to Scope of Punitive Damages Cap is Rebuffed By Brian F. Lange, Esq. 14 How Can Your CPA Make You Money (Legally)? By Borbala Banto, CPA & Laszlo Szilagyi, CPA 16 Diane Citrino Attorney of the Month Special Sections 28 Talk of the Town 19 Is Your Secure and Compliant? By Dave Kinsey 20 Taking On Debt Buyers in Bankruptcy Court and Beyond By Marc Dann 21 Good Works Something to Cheer About By Katherine Bishop 22 Emerson Thomson Bennett, LLC Law Firm of the Month 24 Valuation of Real Estate Assets By Ira Krumholz 26 Lawyers Hate Conflict By Tea Hoffmann TARGETMARKETMEDIA Greater Austin Metro Atlanta Boston Chicago Greater Dallas Metro Detroit Greater Fort Worth Hampton Roads/SE Virginia Greater Indianapolis Kentucky Greater Las Vegas Long Island Los Angeles County Greater Miami Orange County Palm Beach County & Greater Fort Lauderdale Mississippi Central New Jersey New Jersey Metropolitan Northern New Jersey Western New York Greater New Orleans Greater Orlando Greater Phoenix Greater Pittsburgh Greater Philadelphia Greater Salt Lake City Santa Rosa Central Valley California Greater Tampa North Carolina Triangle Minneapolis/St. Paul Greater Cleveland Copyright 2015, Target Market Media all rights reserved. Reproduction in whole or part is strictly prohibited. Subscription rate: $7.95 per copy. Advertising rates on request. Bulk third class (standard) mail paid in Phoenix, Arizona. Although every precaution is taken to ensure accuracy of published materials, Attorney at Law Magazine & Target Market Media cannot be held responsible for opinions expressed or facts supplied by authors. Postmaster please send notices to: Corporate Office : 777 East Thomas Road Suite 130 Phoenix, AZ Phone (480) Fax (480)
6 The Remnants of Intentional Tort By Joshua P. Grunda, Esq. WORKERS COMPENSATION Joshua Grunda attended Cleveland State University, Marshall College of Law, from which he graduated in Joshua is licensed to practice law in the states of Ohio and Illinois, the federal court for the Northern District of Ohio, and the U.S. Supreme Court. He is an associate attorney with Bevan & Associates LPA, Inc. His primary practice areas are asbestos litigation, workers compensation and appellate practice. For more information, visit The modern era of the employer intentional tort cause of action was ushered in with the Ohio Supreme Court s ruling in Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608 (1982). Until this time, employees had been limited to the workers compensation system for injuries sustained at the workplace. An employee was able to overcome the immunity endowed by R.C and Article II, Section 35 of the Ohio Constitution if they could show that the employer was certain or was substantially certain, that injury would occur by subjecting the employee to a particular process, procedure, instrumentality or condition in the workplace. Fyffe v. Jeno s, Inc., 59 Ohio St.3d 115 (1991). Subsequent attempts by the Ohio General Assembly to stiffen the standard set forth in Fyffe were rejected by the Ohio Supreme Court in Brady v. Safety-Kleen Corp., 61 Ohio St.3d 624 (1991) and Johnson v. BP Chems., Inc., 85 Ohio St.3d 298 (1999). This all changed with the codification of R.C in Unlike previous attempts to modify the holdings in Blankenship and Fyffe, the Ohio Supreme Court upheld the constitutionality of the statute in Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250 (2010) and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280 (2010). R.C requires that an employee show that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur. The statute then goes on to define substantially certain to mean that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death. This effectively merged the previous standard of certain or substantially certain set forth in Fyffe into a new, single deliberate intent to injure standard. Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491 (2012). As Justice Lanzinger recently stated in a concurring opinion for Hoyle v. DTJ Ents., Inc., 2015-Ohio-843, through enactment of the statute, the General Assembly has closed off employer intentional torts to employees in the state of Ohio. For all practical purposes, Justice Lanzinger is almost right. While bringing an intentional tort cause of action under sections (A) or (B) of R.C can be exceedingly difficult, the General Assembly has left the door slightly open through section (C) of the statute. R.C (C) states that: Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result. It is under section (C) of the statute, by either claiming that the employer has deliberately removed a safety guard or deliberately misrepresented the toxic or hazardous nature of a substance, that plaintiffs have found some continued success in bringing intentional torts. The Ohio Supreme Court has defined the term equipment safety guard to mean a protective device on an implement or apparatus to make it safe and to prevent injury or loss Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199 (2012). Further, the court has rejected attempts at a more expansive definition of equipment safety guard, refusing to extend the definition to such items as rubber gloves and face masks. Despite this fact, plaintiffs have found success bringing intentional torts under section (C) of the statute for the deliberate removal of an equipment safety guard in such cases as Downard v. Rumpke of Ohio, Inc., 2013-Ohio As long as the equipment safety guard meets the Supreme Court s definition, and its removal was not the result of some kind of accident, this remains a viable cause of action. There have also been a number of positive trial court orders under the deliberate misrepresentation of a toxic or hazardous substance section of the statute in asbestos injury cases. The evidence often shows in these cases, along with other toxic and hazardous substances cases, that the employer knows a great deal more about the dangers of the products being used than the employees using them. It is also not unusual for the employer to misrepresent these dangers to the employees when the employees begin to question the health effects of the products they are working with. While it has undoubtedly become more difficult to overcome the immunity granted by R.C and Article II, Section 35 of the Ohio Constitution, R.C has left some continued openings to bring an intentional tort action. While every injured worker should seek a remedy through the workers compensation system, when egregious acts by an employer are at issue, an intentional tort cause of action is still a viable option.
7 Office, Industrial, Medical, Retail, Facility, Multi-Family & Student Housing Property Management Focused on You Give your clients peace of mind. Like you, NAI Daus Property Management has the expertise, power and freedom to think creatively and act quickly for our clients. Maintenance Financial Administration Receivership Services Bookkeeping Lease Administration Tenant Improvements Ira Krumholz CPM, President NAI Daus Property Management Commercial Real Estate Services Worldwide Business Property Specialists, Inc. Broker The pillars of wisdom rest upon a strong foundation. Start building the foundation of your thriving and profitable law business today. Discover how your competition succeeds, and why they ultimately only compete against themselves. Explore free, behind-the-scenes insights at LawBusinessPodcast.com Brought to you by the law business advisers at BetterNumbersForLawyers.com Vol. 1 No. 3 Attorney at Law Magazine Cleveland 7
8 Verdict and Settlement Databases Your Tools for Evaluating Cases By Kathleen M. Dugan While extremely valuable for researching legal doctrines and precedential authorities, cases only paint a partial picture of existing law on a legal topic. Verdict and settlement databases fill in the picture and provide a gateway to outcomes and damage awards in cases where judges never issued formal opinions. Although lawyers cannot guarantee results or predict monetary awards with exact certainty, jury verdicts and settlements can help lawyers evaluate the legal and monetary potential of new cases before deciding whether or not to take them. Verdicts and settlements can also assist lawyers in either preparing and making settlement demands or reviewing them closer to trial. They can also help lawyers evaluate opposing counsel, including the types of cases they take, what they win and lose, and how they settle cases before trial. Prior verdicts and settlements that discuss a particular injury or cause of action may also reveal the names of expert witnesses lawyers may want to retain, have to depose, or are forced to cross-examine or discredit at trial. Verdict and settlement databases have traditionally relied on voluntary reporting by lawyers who are proud of favorable results in their cases. More recently, some vendors of these services have begun sending reporters to local courthouses to collect information about important cases that are tried or settled. Verdicts are naturally easier to find than settlements, which are frequently protected by nondisclosure or confidentiality agreements. For lawyers who have never used a verdict or settlement database, a typical verdict or settlement report is usually a page long. Each report usually contains a case caption, the date, the applicable jurisdiction, the type of case (e.g., personal injury, employment discrimination), a summary of the case facts and legal issues, damage awards, case counsel, and experts where applicable. Some reports provide very general information, whereas others contain details about injuries, demands and offers, types of damages (e.g., compensatory, punitive, specials), individual party awards, evidentiary issues, and jury deliberations. Although there are still a few print resources available for finding verdicts and settlements, databases are substantially easier and much more efficient to use. Lawyers can search Westlaw, Lexis or both to find national, state or federal jury verdicts. Between them, these two vendors cover most of the national reporters, such as ALM Media, Inc., Jury Verdict Review Publications, Inc., LRP and Mealey s Publications, Inc., as well as many local reporters, such as The Ohio Trial Reporter. These vendors are also gradually migrating subscribers from their.com platforms to their new flagship products, WestlawNext and Lexis Advance. Gone are the days of being forced to choose a jurisdiction or database before creating a search query. These new products both offer more user-friendly interfaces and encourage searchers to start by entering facts and legal facts in a single search box at the top. Searchers can then filter search results afterward by various criteria, including jurisdiction, court, date, practice area or topic, attorney or law firm, judge, or additional keywords. WestlawNext also allows filtering by damage range, and Lexis Advance allows filtering by particular verdict reporter. Both services also allow searchers to save, print, download and search results for further analysis later. While these search engines offer premium search capabilities, there are several other options lawyers might want to explore. Three Web-based search alternatives with a national perspective include Verdict- Search.com, Law.com and MoreLaw.com. VerdictSearch.com is a subscription service provided by ALM that covers approximately 180,000 nationwide verdicts and settlements, including reports from Cuyahoga, Franklin and Hamilton counties in Ohio. VerdictSearch is searchable by keyword, state, court, county, type of injury, type of case, award type and date range. Law.com is another subscription service from ALM that reports nationwide jury verdicts and settlements in high-profile cases. MoreLaw. com is a free Internet search engine for approximately 40,000 civil trial and appellate cases back to In addition to these resources, there are also more local options. Ohio lawyers who are members of the Ohio State Bar Association have access to Casemaker, where they can browse or search verdicts and settlements in the Ohio Trial Reporter from For a particularly local perspective, Cleveland area attorneys can subscribe to the Justice Center Reporter, an independent publication that reports civil jury verdicts that are rendered in Cuyahoga County Common Pleas Court. Legal newspapers and journals can also be good sources of current verdict and settlement information. One Web-based subscription service some lawyers use is a California company called Courthouse News Service which sends its reporters all over the country to cover cases from start to finish. Topical legal blogs can also be great sources of new cases, as can lawyer and firm websites that summarize their victories or track cases of importance on a particular legal topic. Kathleen M. Dugan serves as the librarian and chief administrator of the Cleveland Law Library in the Cuyahoga County Courthouse. She is both a licensed Ohio attorney and professional librarian. After graduating from John Carroll University, she obtained her Juris Doctor from Cleveland-Marshall College of Law and practiced at a small Cleveland law firm for 13 years. In 2000, she obtained a master s degree in library science from Kent State University. Ms. Dugan is active in the Ohio State Bar Association and several Cleveland Metropolitan Bar Association pro bono and community service programs. She frequently lectures on legal research and attorney professionalism. 8
9 Shareholder of the Month Vol. 1 No. 3 Attorney at Law Magazine Cleveland 9
10 The Potential of Foreign Investment: The EB-5 Program By Erin Brown Attorney Erin P. Brown received her Juris Doctorate, magna cum laude, from Cleveland Marshall School of Law and is admitted to practice law in the states of Florida and Ohio. Erin has been with Robert Brown LLC since 2002 and provides legal assistance for immigration matters such as adoption, employment, family, removal and citizenship. For more information, visit IMMIGRATION LAW In 1990, Congress created the Immigrant Investor Program, also known as EB-5. The purpose of the program was to stimulate the U.S. economy through job creation and capital investment by foreign investors. To qualify for an EB-5 visa foreign investors must meet specific requirements. In general, the investor must meet capital investment amount, job creation standards, and ensure participation by the foreign national in the management of the business. EB-5 investors and all dependents will obtain permanent residency (green card), assuming all requirements have been satisfied and approved by U.S. Citizenship & Immigration Services (USCIS). The EB-5 program represents a boon for the U.S. economy, as the influx of foreign capital makes possible projects that have a direct benefit to U.S. workers. A core requirement of the program is the creation of at least 10 full-time jobs for U.S. citizens or permanent residents. USCIS does not limit investments to any specific industry, so foreign dollars can equally flow into the manufacturing sector, high technology, retail or hospitality. More importantly, the EB-5 program brings to the United States entrepreneurs that fuel the dynamism of the U.S. marketplace. With the world s economy now completely integrated and globalized, the ability of the United States to attract both foreign investment dollars and the talent of the individuals behind such investments will continue to have a substantially positive impact on the outlook of the country s economic future. The standard EB-5 program allows for an initial two-year conditional residency period for approved applicants; following this two-year conditional period, investors must be able to evidence that their investment has been completed and the job creation requirements have been met. If the investment in the new commercial enterprise is made in a targeted employment area (TEA), the required investment amount is reduced to $500,000. A TEA is a rural area of less than 20,000 population or an area which has experienced high unemployment of at least 150 percent of the national average. A secondary program for the EB-5 investment is through the Regional Center Program. Congress and USCIS have defined a regional center as any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation and increased domestic capital investment. 8 C.F.R (e). Regional centers allow investors to pool capital, so long as each applicant meets the job creation requirement. However, regional centers are held to more relaxed job creation requirements and are able to satisfy the job creation requirement by creating 10 direct, indirect or induced full-time jobs. Currently, there are approximately 652 USCIS approved regional centers. In Cleveland, recent construction efforts on the city s Cuyahoga riverfront, Crocker Park and the East 9th Street/Euclid corridor have been partially funded through EB-5 regional center investments, which provides a direct example of the powerful impact that foreign investment can have upon the vibrancy of municipal and state projects. The popularity of the EB-5 investment program continues to rise. Congress sets an annual worldwide quota on the number of immigrants permitted to come to the United States; of this quota 7.1 percent of visas are allocated to the EB-5 program. A sub-quota is then set for each country and for each category of immigrants. Recently, Chinese nationals have accounted for more than 80 percent of EB-5 immigrant visas, a direct result of the rapid growth of the Chinese economy over the past decade. In August 2014, USCIS announced that the EB-5 preference category for Chinese applicants had become unavailable, as the Chinese had reached their quota limit for the first time in 20 years. In 2012, the EB-5 investment program totaled over $2 billion or 1.2 percent of the foreign direct investment into the United States. The recent EB-5 retrogression may make the United States a less attractive option to Chinese investors and has unnecessarily slowed projects that directly benefit the U.S. economy. In January, The American Entrepreneurship and Investment Act of 2015 was introduced to the House of Representatives. If passed, H.R. 616 will resolve many of the issues surrounding the EB-5 program, including: permanent authorization of the Regional Center Program; allocating 5,000 visas for TEA investors; preapproval of new commercial enterprises; establish concrete processing times for EB-5 adjudications; eliminate counting the spouse or child of the immigrant investor toward the annual EB-5 allotment; enhance transparency and accountability to prevent fraud in the Regional Center Program; and finally, eliminate the percountry quotas for the EB-5 visas. Maintaining the efficiency and availability of the EB-5 program remains of paramount importance to keeping the United States globally competitive. As with many issues involving the immigration field, action is needed by Congress to continue to ensure that the EB-5 remains an ongoing engine of American economic might and not an unnecessary brake on the country s future.
11 We are looking for the best litigation leaders in Cleveland. If you know one, nominate them for Litigator of the Month. Contact James Jim Shultz - Publisher (815) I Vol. 1 No. 3 Attorney at Law Magazine Cleveland 11
12 Recent Challenge to Scope of Punitive Damages Cap is Rebuffed By Brian F. Lange, Esq. MEDICAL MALPRACTICE Brian F. Lange, Esq. is an attorney with Bonezzi Switzer Polito & Hupp Co., L.P.A. He focuses his practice in the areas of nursing home/ long-term care defense, medical malpractice and employment defense. Prior to joining BSPH, he served as a judicial staff attorney for the Honorable Dick Ambrose in the Cuyahoga County Court of Common Pleas. Mr. Lange was recently recognized as a Rising Star in the 2014 and 2015 editions of Ohio Super Lawyers, which recognizes the top 5 percent of Ohio Lawyers under the age of 40. For more information, call (216) , or visit In April 2015, the Ohio Supreme Court upheld the punitive damages cap in the case of Sivit v. Village Green of Beachwood, L.P., limiting punitive damages to no more than two times compensatory damages in any tort action. Following a fire at an apartment complex in 2007, a jury awarded a group of residents $582,328 in compensatory damages and $2 million in punitive damages. The punitive damages award was upheld by the appellate court despite the fact that the award exceeded the statutory limit on punitive damages. This appellate decision called into question the scope of the limit on punitive damages; however, the Supreme Court ultimately reversed this decision, firmly establishing the punitive damages cap in Ohio. Scope of the Punitive Damages Cap The punitive damages cap is a statutory limitation that arose through the tort reform movement in Ohio. The statute limits the amount of punitive damages that can be recovered, in any tort action, to two times the amount of compensatory damages awarded to the plaintiff. Further, if the defendant is a small employer, meaning employing not more than 100 persons on a full-time basis, any punitive damage award will be limited to the lesser of two times the amount of compensatory damages or 10 percent of the employer s net worth when the tort was committed, and the maximum punitive damages that can be awarded against a small employer is $350,000. These limitations, especially with respect to a small employer, can prove invaluable in resolving a case involving gross negligence or egregious conduct. The limitations also protect defendants from an enraged jury that awards excessive punitive damages. Attempt to Limit the Scope of the Cap In Sivit, the residents claim was based on a fire occurring at the property in 2007, which resulted in the residents being displaced from their homes and losing most of their personal belongings. The punitive damages cap applied to this action, would have reduced the punitive damage award from $2 million to $1,164,656 (two times the compensatory award of $582,328). However, the trial court did not apply the cap, and on appeal it was determined that the cap did not apply because the action arose out of landlord-tenant agreements, which are contractual in nature, and the cap only applies to tort actions. Applying the appellate court s decision in the context of a nursing home or long-term care facility may result in a limitation in the application of the cap to these facilities, as the argument could be made that the landlord-tenant agreement at issue in Sivit is similar to the residency agreements generally in place at nursing homes and long-term care facilities. Supreme Court Upholds Damages Cap In April 2015 when the Ohio Supreme Court reversed the decision of the trial and appellate courts in Sivit, it limited the scope of the damages cap as it related to claims in the landlordtenant context. Thus, the Ohio Supreme Court alleviated any concern regarding a limitation in the scope of the punitive damages cap to nursing homes and long-term care facilities. The Supreme Court determined that despite the fact that there was a contractual agreement between Village Green and its residents, the claim of the residents constituted a tort action and was subject to the punitive damages cap. The court found that the harm caused to the residents was not a result of a breach of contract, but was based on the landlord s negligence in maintaining the property, and as such the punitive damages cap applied. As a result of this decision, and the reversal of the lower court decisions, nursing homes and long-term care facilities can take solace in the fact that the punitive damages cap will apply to claims of negligence brought by residents of their facilities. Editor s Note: After submission of The Erosion of Medical Claims Protection article, a new version of R.C (E)(3) took effect March 23, 2015, wherein the Ohio General Assembly modified the definition of a medical claim by allowing claims arising under a nursing home resident s plan of care to be considered medical claims. Presumably, the Ohio Legislature added the plan of care language to give greater protection to nursing homes by allowing more claims to be considered medical claims. Time will tell whether claims that courts previously found to be ordinary negligence claims will now be found to be medical claims under the new language of the statute.
13 Vol. 1 No. 3 Attorney at Law Magazine Cleveland 13
14 Borbala Banto, CPA Laszlo Szilagyi, CPA How Can Your CPA Make You Money (Legally)? By Borbala Banto, CPA & Laszlo Szilagyi, CPA Borbala Banto is the co-founder of Law Business Podcast. As a law school graduate and CPA, her mission is to bring her listeners behind-the-scenes insight into the journey of building a thriving and profitable law business. Learn more about the secrets of successful small law firm owners at LawBusinessPodcast.com. Laszlo Szilagyi, CPA is the co-founder of Better Numbers for Lawyers. He is using his signature processes to help his clients create lucrative law businesses and pay themselves what they re worth. His proactive and caring approach has helped smart lawyers in 17 states sleep better at night. Learn more at BetterNumbersforLawyers.com. PRACTICE MANAGEMENT Your CPA can (and should) make you money by giving you more than just tax compliance services. You should work with a CPA who is also your business adviser and can help you evaluate the financial and tax implications of your business decisions. If you have an ongoing, proactive and strategic relationship with this type of CPA, the relationship will be extremely profitable for you. So what does a relationship like that look like? This CPA and business adviser will help you to: Charge Higher Fees & Collect Them Faster Recently, one of our clients a criminal defense attorney had a dilemma about the flatfee he was asked to quote to a prospective client. He was hesitant to charge the fee even though he felt it was appropriate for the proposed services because he felt the client wouldn t value those services as much. After discussing the issue, we analyzed the requirements for the time and expertise of the project and identified that he would actually be doing his client a disservice to by not charging what he is worth. Ultimately, the client would suffer by not gaining the sufficient time, attention and care required. After our session, the attorney felt confident to charge $10,000 more than he originally intended to, and both parties were satisfied with the results. By regularly meeting with your CPA during the year, it creates opportunities to evaluate the effects of your everyday business decisions before you make them. Your CPA should also be involved in your budgeting process and cash flow projection. This type of forecasting will warn you about cash shortcomings in the near future and give you an opportunity to prepare for it before it occurs. Our clients that regularly update and examine their cash flow projection reports feel motivated to bill more and accelerate collections of outstanding invoices. Spend Wisely Not long ago, a family law attorney presented us with a question of why her profits were lower than expected. She wasn t sure where her money was going, so we looked at the financial statements. We then realized that although the chart of accounts were sufficient for tax preparation purposes, they were not detailed enough to provide useful information for management and analysis purposes. In the process of fixing this issue, we segregated wage expenses between associates, paralegals and support staff and realized that she wasn t earning enough profit from her staff. Due to the new clarity about the cause of her problem, she was able to correct it by both increasing billing rates and improving employee utilization. Your CPA and business adviser helps you manage your finances proactively by examining the numbers regularly and analyzing and interpreting what those numbers mean. This gives you new clarity and insight that not only saves you money, but also helps you spend it productively. Don t Overpay the IRS Last week, a new client presented us with his horror story about dropping off his documents at his previous CPA s office then later picking them up without having the opportunity to talk with his CPA. He also complained about receiving a large, unexpected tax bill, in spite of paying quarterly estimates. To help this client, we amended this client s tax returns and found mistakes and missed opportunities that amounted to more than $20,000! This unexpected extra refund definitely came in handy, as he had a wedding to pay for this summer. So does your CPA serve as your proactive and strategic tax planner or only your tax preparer? Did they offer to prepare a personalized tax plan for you and help implement it? When was the last time they called you and said, Here is a new idea that will save you money!? Do you meet with them at least quarterly to have your current tax liabilities projected, or are you always surprised at tax time? Are you confident that your business tax treatment is still the most beneficial, or do you have a suspicion that you pay more tax than is legally required? Do you know your audit odds? Meeting with your CPA monthly or quarterly gives you an opportunity to discuss the business side of your law firm with an ally who understands it and gives you clarity about what makes it tick so you don t have to run it blindly. When you have a strategic relationship with your CPA, together you can discuss your unique situation and challenges. This will give you new insights into the causes of the problems and ultimately result in finding custom solutions. If you want your CPA to make you money, find one who understands your business and wants to see it succeed!
15 IMMIGRATION LAW Knowledge. Experience. Confidence. Comprehensive immigration legal services for employers, individuals and families. Cleveland Columbus Orlando Raleigh-Durham 1468 West 9th Street, Suite 800 Cleveland, Ohio Proudly Representing Ohio Clients For Over 25 Years WORKERS COMPENSATION Work-Related Injuries or Death, VSSR and Employer Negligence ASBESTOS Mesothelioma/Lung Cancer/Asbestosis Products Liability Litigation, Workers Comp SOCIAL SECURITY DISABILITY PERSONAL INJURY Auto Accidents/Slip & Fall/Dog Bite/Medical Malpractice ESTATE PLANNING & PROBATE VICTIMS OF CRIME COMPENSATION 6555 Dean Memorial Parkway Boston Heights, OH Toll Free: Local: Fax Accepting referrals and co-counsel arrangements Vol. 1 No. 3 Attorney at Law Magazine Cleveland 15
16 Attorney of the Month Diane Citrino By Haley Freeman A ristotle said, Law is reason free from passion. Aristotle was clearly not describing Diane Citrino, as she is a dynamic advocate whose career in the law spans nonprofit, government and private practice. She fuses reason with passion to achieve solutions with lasting and positive resonance, and her commitment to social justice challenges law to be not only just, but fair. Today, Citrino is a well-recognized attorney at the woman-owned firm of Giffen & Kaminski. Her rich practice history benefits the companies that hire her to investigate matters related to employee conduct, as well as the outside lawyers to whom she acts as special counsel. She is also skilled in Title IX investigations, consulting and training. She litigates an array of employment issues and maintains a national reputation for her fair housing litigation. A well-rounded business litigator, she brings her passion to all that she does. Citrino and her colleagues share a creative, team atmosphere and are committed to community involvement. GK is a fabulous place to work, where everyone works together and supports your success, Citrino said. The firm s tag line, Think Practical Results, is echoed in its unconventional Web address, ThinkGK.com. This is a legal culture where innovation and collaboration are nurtured, and where Citrino s multifaceted background and experience are 16 greatly valued by peers and clients. Citrino earned her law degree from the University of California, Berkeley, before joining a prominent Chicago firm and then going on to a position with the Legal Assistance Foundation of Chicago. While there, she prevailed in her representation of 1,400 Spanish-speaking beauty school students who had been promised but then not given an education in Spanish. Proceeding under civil RICO for the fraudulent use of federal Pell grant funds, Citrino proved early in her career that she is a pioneer of solutions others may not see. Diane 2.0 The ability to reinvent oneself is a mark of a creative person, and Citrino s adaptability has been a key element of her success. One of my nicknames is Diane 2.0, she said. I embrace reinvention and change. It is a big leap to go from a big firm to nonprofit, to government, and then to small firm, forprofit work. I think my ability to adjust and be agile has helped me to have a rewarding career solving problems for others. Citrino s belief in community service is evinced in her wide-ranging involvement in the Cleveland community. She has distinguished herself as regional director of the Ohio Civil Rights Commission (OCRC), as a private practitioner, and as a community advocate. I love what I do, Citrino said. I m passionate about connecting with a broad range of people and ideas. Few people have the opportunity to earn their living doing what they love. It gives me purpose to work on issues that have meaning. Inspired by the Courage of her Clients In her fair housing work, Citrino has prevailed in a number of high-profile cases, earning a sterling national reputation. She considers herself lucky because I have represented people for whom justice was improbable. I have been inspired by the courage of my clients. In one such case, Citrino won one of the largest verdicts on record for a group of women who were sexually abused by a landlord. He tried to rent to people who were vulnerable and desperate for housing and therefore unlikely to complain. The case went on for years, and the stories were gut-wrenching. Many clients had mental disabilities. Many had children and didn t want to move and change schools. These were people who didn t know they had fair housing rights. Housing is private and abuses can be more easily hidden from view. Citrino explained, There was a lot of investigative work in the case, including over 50 depositions. We also used an undercover police officer to see how a female applicant was treated. That experience, combined with the hundreds of cases she oversaw as a regional director of the OCRC, have made her sought after for her ability to investigate under the most difficult of circumstances.
17 Studio Z Photography Few people have the opportunity to earn their living doing what they love. It gives me purpose to work on issues that have meaning. Vol. 1 No. 3 Attorney at Law Magazine Cleveland 17
18 Nancy Drew Meets Perry Mason Citrino describes herself as a Type A, oldest of five whose childhood heroes were Nancy Drew and Perry Mason. From early days, she saw a future for herself in the justice system. When she left the OCRC, Citrino was approached by various companies about conducting independent investigations. A Spanish speaker with a diverse practice history, Citrino found a comfortable niche in corporate investigations, where she works with companies to proactively change their cultures. Companies want a second set of eyes to help figure out what is happening and how to straighten it out. Citrino s approachability helps employees discuss the real facts and issues with her so she can identify potential or existing problems and collaborate with management to craft solutions. When you re doing an investigation, you have to be able to relate to people, and they have to be able to talk to you. I love doing investigations because it s almost like writing a novel. Hearing everyone s perspective is like a triptych seeing the same story from three different perspectives. Your job is to put the lens in focus to get those different pieces of the Venn diagram to overlap. Citrino s investigative talents are also much sought-after by colleges and universities seeking assistance with Title IX investigations. Colleges and universities are experiencing heightened scrutiny in sexual misconduct investigations where an excellent investigation is critical to protecting all involved alumni, students, professors and the institution itself. Bringing clarity to the situation helps address the problem quickly and effectively. Along with investigations, Giffen & Kaminski attorneys have expertise in counseling schools on improving their Title IX policies and procedures. A Feather Quill The dreams of a little girl who loved watching Perry Mason were fully realized when Citrino represented a client in front of the U.S. Supreme Court. That was a thrilling experience given that there are thousands of petitions for certiorari, and during that term, the court accepted less than 80 cases. Citrino was touched when she received a feather quill at counsel table, a Supreme Court tradition that endures from the early 1800s. It was an unforgettable experience, she said, to be part of that tradition. What the court says matters so much, and so many people are affected by the issues they choose to hear. Citrino has received many honors for her outstanding legal achievements, most notably, the Rosa Parks Congressional Medal, awarded to her by the OCRC. Art Imitates Life Aristotle is also credited with the saying, Art imitates life. Among her many talents, Citrino is an artist who took up pottery making at Berkeley. She is also an avid reader and gardener who sees herself as creating beauty along with creating justice. One of Citrino s appreciative clients honored her by dedicating a fair housing mural to her entitled, It Is Above That You and I Shall Go. It is located on the western wall of the Six Chimneys apartment building in Cleveland s MidTown district. Another client dedicated his graphic novel, with the inscription, In honor of Diane E. Citrino; A Gatherer of Diamonds. An enthusiast of art and language, Citrino is moved by these unique expressions of gratitude. My career has taught me how much of an impact one person can have. I feel proud to be a part of the Cleveland community and to have made some small contribution to its social evolution. My clients have changed me for the better. It is a privilege to unite my passion with a purpose, improving my clients situations and my community. At a Glance Practice Areas Business and Employment Litigation Independent Employment Investigations Title IX Investigations, Consulting and Training Fair Housing Enforcement Education Juris Doctor, University of California, Berkeley Bachelor of Arts, Brown University, Phi Beta Kappa Professional Affiliations Ohio Advisory Committee to the United States Civil Rights Commission, Chair ABA Delegate Federal Bar Association, Civil Rights Section, Chair, Cleveland Metropolitan Bar Association, Trustee, Select Honors Rosa Parks Congressional Medal One of 10 Ohio Lawyers of the Year, Ohio Lawyers Weekly Housing Research & Advocacy Award Year 2000 OCRC Leadership Award Favorite Quote Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe. Frederick Douglass Giffen & Kaminski, LLC 1300 East Ninth Street, Suite 1600 Cleveland, Ohio (216) Studio Z Photography 18
19 Is Your Secure & Compliant? By Dave Kinsey is arguably the most important application we use and simply managing our inbox can be challenging enough. Now throw in HIPAA, state data breach and other regulations, and the stakes for properly managing have never been higher. Here are some basic items to consider. Availability & Continuity How much would one hour of downtime cost you? How about a day? Clearly lost employee productivity, disrupted client service and overall frustration will accompany even a brief interruption. Whether there is an Exchange server in your office it or you are using a hosted service such as Office 365, there will be interruptions. Last June, Microsoft had a nine-hour outage affecting a great number of people. continuity solutions address this and keep the mail flowing. continuity detects when your primary is down due to power, Internet or hardware issues and automatically fails over so you can still send and receive mail in Outlook, your Web browser or on your smartphone. When primary service is restored, continuity automatically switches back. From Outlook, failover can be so seamless that you may never even notice you had hours of outage on your primary service. Archiving vs. Backups It s critical that all systems are regularly backed up so that they can be quickly restored when machines fail or people delete data inappropriately. One of the benefits of hosted Exchange (from a provider such as Intermedia or Microsoft) is that they handle your backups. What is restorable is a more complicated matter. Backups are a snapshot from a point in time, and are generally retained for a limited amount of time. The number of available snapshots often decrease over time as well. For example, you may have hourly backups for the past five days, daily backups for three months, weekly for two years, etc. It s very possible, therefore, that any given deleted message may not be on the backup. Restoring a message that was deleted a while ago may require your IT folks to perform a time-consuming search through dozens of backups in a trial and error process. archiving takes a completely different approach, by ensuring that every message is captured and retained for an extended period of time, say 10 years. All messages are captured and cannot be missed or deleted from the archive. Rather than request a restore through their IT person, anyone can search their archive directly from Outlook with advanced search tools. Archiving is a great solution for on-premise Exchange servers to provide secure, encrypted, compliant off-site backup. However, I believe it s even more useful for hosted solutions such as Office 365. By default, Microsoft keeps deleted items for 14 days. The primary purpose of their backups is to recover from disaster; Microsoft will not search through their system-level backups for a lost message. If it s gone, it s gone. Employing an archiving strategy helps mitigate this risk as every message can be recoverable effectively forever and every user of the system can search and verify this at any time with a simple search. Microsoft and other big hosting providers also offer archiving options, but I strongly recommend archiving with someone other than your primary hosting provider. The best practice for backup is to have redundant copies of your data somewhere other than your primary location for safety. Encryption For many years, virtually all Internet was sent unencrypted and fortunately that s changing. By default, modern Exchange servers will try to send via a mechanism called Transport Layer Security (TLS) which will encrypt the message. The key word here is try. Unfortunately, not all systems are setup to handle TLS and the link may default back to a basic unencrypted mechanism known as Simple Mail Transport Protocol (SMTP). SMTP is inappropriate for transmitting sensitive information. There are some elegant solutions to handle highly-secure communication to all addresses for a fairly modest investment. For many of my clients, using the word SECURE anywhere in the subject line will cause the recipient to receive an notifying them that a secure message has been sent to them. The contains a link to a secure website where they can read and respond to any secure messages they receive. Dave Kinsey is the owner and president of Total Networks, the technology partner of many law firms throughout Arizona. For more information, please contact Dave at Vol. 1 No. 3 Attorney at Law Magazine Cleveland 19
20 Taking On Debt Buyers in Bankruptcy Court and Beyond By Marc Dann Former Ohio Attorney General Marc Dann has been fighting for homeowners, consumers and small businesses since he began his private practice in Upon leaving office in May 2008, Dann volunteered to represent homeowners facing foreclosure and became even more concerned about the standing of certain servicers to foreclose on his clients. Recognizing that the problem of fraudulent foreclosure practices was epidemic in Ohio, Marc Dann established the Dann Law Firm representing more than 500 homeowners in foreclosure in more than 65 different counties in Ohio. CONSUMER LITIGATION In 2013, Alabama bankruptcy attorney Nick Wooten became fed up with debt buyers routinely filing time-barred proofs of claim in his consumer bankruptcy cases thus requiring that he go through the claims objection process repeatedly and in his view unnecessarily. He decided to take a stand and filed an adversary case against one of the country s largest debt buyers, LVNV Funding, LLC (LVNV), alleging that the filing of a claim in a debtor s Chapter 13 bankruptcy case, which was barred by the applicable state statute of limitations, constituted a violation of the Fair Debt Collection Practices Act (FDCPA). 15 U.S.C. 1692, et seq. Nick lost his argument in the bankruptcy court and again in the district court. Undeterred, Nick took his case to the Eleventh Circuit Court of Appeals. There he won. In Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), the Eleventh Circuit concluded that LVNV s filing of the proof of claim fell well within the ambit of a representation or means used in connection with the collection of any debt and that such action violated the FDCPA s plain language. 758 F.3d at In reaching this result, the court first observed: A deluge has swept through U.S. bankruptcy courts of late. Consumer debt buyers armed with hundreds of delinquent accounts purchased from creditors are filing proofs of claim on debts deemed unenforceable under state statutes of limitations. Id. at The motivation for debt buyers filing such claims is not difficult to surmise. Claims filed in Chapter 13 bankruptcy cases are automatically allowed and are paid a distribution unless an objection is sustained. Often, these claims are small and go unnoticed and thus are paid, or the motivation of debtor s counsel or a Chapter 13 trustee to object is simply not there. Yet, repeated thousands of times in cases filed throughout the country, the practice generates substantial revenue for what is otherwise an uncollectible debt. In short, its free money and it has become a routine business practice for large debt buyers. The Crawford court found that LVNV was a debt collector and that its action in filing a proof of claim constituted debt collection within the meaning of FDCPA. Employing a leastsophisticated consumer standard the court determined that LVNV s filing of a time barred claim would be unfair, unconscionable, deceiving or misleading. Id. at The court analogized the filing of a proof of claim with the filing of a lawsuit and concluded that the later was clearly an FDCPA violation when the claim was filed outside of the applicable statute of limitations in a non-bankruptcy forum. Id. at On April 20, 2015, the U.S. Supreme Court denied LVNV s petition for writ of certiorari. Significantly, LVNV raised for the first time in its petition its most potent argument namely that the Bankruptcy Code preempts the FD- CPA and provides the sole process for adjudicating claims in bankruptcy. It is unclear why these arguments were not raised in the lower courts and may have been a reason the Supreme Court did not take the case on. Now, this is the central argument made by debt buyers in post- Crawford cases. The courts are now split on the issue, although this author would dare say that the trend favors viability of FDCPA liability for the filing of time-barred claims. This division is exemplified in Johnson v. Midland Funding, LLC, No. 1:14-cv WS-C, Doc. #28 (S.D. Ala. March 24, 2015). The Alabama federal district court found that the code and the FDCPA were in conflict on the issue and that the code prevails. In Johnson, the district court questioned whether the tension between the code and the FDCPA precludes the plaintiff s FDCPA claim, an issue not considered by the Eleventh Circuit in Crawford. The court found an irreconcilable conflict between the code and the FDCPA because, according to Crawford, while a creditor could file a proof of claim on a time-barred debt under the code, they could not do so under the FDCPA. Thus, the court in Johnson found that the FDCPA negated the code which requires the FDCPA to give way to the code. The Seventh Circuit best addresses this argument. In a series of rulings, the Seventh Circuit held that the Bankruptcy Code does not preclude recovery for violations of the FDCPA Randolph v. IMBS, Inc 368 F.3d 726 (7th Cir. 2004), that the filing of a civil suit to collect time barred debt is a violation of the FDCPA, Phillips v. Asset Acceptance Corp, 736 F.3d 1076 (7th Cir. 2013), and that 15 U.S.C.S. 1692e(2)(A) specifically prohibits the false representation of the character or legal status of any debt, that whether a debt is legally enforceable is a central fact about the character and legal status of that debt and that a misrepresentation about that fact violates the FDCPA. McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1012 (7th Cir. 2014). Courts are ruling on either side of the issue almost daily. For a complete list of the cases, please contact me.
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