Lawyers in Leadership Pg

Volume 86 u No. 30 u Nov. 21, 2015

ALSO INSIDE Amendments to UCC Article 9 • Oklahoma Family Wealth Preservation Trust Act Electronic Commerce and Incorporation by Reference in Contract Law Due Process in Tax Sales • Annual Meeting Highlights Thursday, Dec. 3 Program Thursday, Dec. 3 Program 8:30 a.m. Registration and Continental Breakfast 9 a.m.8:30 a.m. Form Registration Changes andEffective Continental Dec. 2015 Breakfast 9:00 Brian Form Huckabee, Changes Huckabee Effective & December Huckabee 2015Inc. 9:50 a.m. Break Brian Huckabee, Huckabee & Huckabee, Inc. 9:50 Break 10 10:00a.m. Peregrine Peregrine Financial Financial Group Group Bankruptcy Bankruptcy Ira Ira Bodenstein, Bodenstein, Shaw Shaw Fishman Fishman Glantz Glantz & Towbin& Towbin LLC LLC 10:50 a.m. BAPCPA 10 Years In – Did Anything Really Change? 10:50 Panel BAPCPA Discussion: 10 Years Moderator, In – Did Anything Charles Greenough Really Change? Panelists: Panel Discussion: Karen Carden Moderator, Walsh, CharlesRoger Everett, Greenough Greggory T. Panelists: Colpitts, The Karen Colpitts Carden Law Walsh; Firm Roger Everett; Greggory T. Colpitts, The Colpitts Law Firm 11:40 a.m. Networking lunch (included in all-day registration) 11:40 Networking lunch (included in all-day registration) 12:1012:10 p.m. Church Church Bankruptcies Bankruptcies 30th Annual Professor Professor Pamela Pamela Foohey, Foohey, University University of ofIndiana Indiana 1 p.m. Student Loans – How Can You Help Your Client if the Advanced Bankruptcy Seminar 1:00 Debt Student is Non-Dischargeable Loans – How Can You Help Your Natalie Client Eness, if the DebtEC MC is Non-Dischargeable? Mac Natalie D. Finlayson, Eness, ECMC Eller & Detrich 1:50 p.m. Break Mac D. Finlayson, Eller & Detrich UnHappy Days 2 p.m.1:50 2015 Break Recent Developments: Sid & Sam Show 2015 2:00 Sam 2015 G. Recent Bratton Developments: II, Doerner, Saunders, Sid & Sam Daniel Show & Anderson, 2015 and Sam Sidney G. Bratton K. Swinson, II, Doerner, Gable Saunders, & Gotwals Daniel & Anderson, and Sidney K. Swinson, Gable & Gotwals are Here Again? 3 p.m.3:00 Adjourn Adjourn Friday, Dec. 4 Program Co-sponsored by the OBA Bankruptcy Friday, Dec. 4 Program and Reorganization Section 8:30 a.m. Registration and Continental Breakfast 8:30 a.m. Registration and Continental Breakfast 9 a.m.9:00 State State of of the the State State Economy Economy 2015 2015 and and Beyond Beyond Chad Chad Wilkerson, Wilkerson, Vice Vice President, President, Oklahoma Oklahoma City City branch DEC. 3 & 4, 2015 executive Branch executive, and regional and economist, regional economist, Federal Reserve Federal Bank of Reserve Oklahoma Bank City of Oklahoma City Oklahoma Bar Center 9:509:50 a.m. Break Break 10 10:00a.m. Ethics Ethics 1901 N. Lincoln Blvd. Honorable Honorable Terrence Terrence Michael, Michael, Chief Chief Judge, Judge, United United States Oklahoma City, OK AVAILABLE Bankruptcy States Bankruptcy Court of Courtthe Northern for the DistrictNorthern of District Oklahoma of 10:50 a.m. Hospital Oklahoma and Other Medical Provider Bankruptcies 10:50 Judy Hospital Hamilton and OtherMorse, Medical Crowe &Provider Dunlevy Bankruptcies Program Planner/Moderator: Judy Hamilton Morse, Crowe & Dunlevy 11:40 a.m. Networking lunch (included in registration) Charles Greenough, McAfee & Taft 11:40 Networking lunch (included in registration) 12:1012:10 p.m. Drilling Drilling on On Anyway Anyway Energy Energy Co. Co. Chapter Chapter 11 Bankruptcy 11 Part Bankruptcy 1 Part 1 This seminar will focus on a broad range of cutting-edge Panel Panel Discussion: Discussion: Moderator, Moderator, Charles Charles Greenough; Greenough; business and consumer bankruptcy-related legal topics. Panelists: Panelists, Gary Gary McDonald, McDonald, McDonald, McDonald, McCann, McCann, Metcalf & Carwile; Metcalf Blaine & Carwile; Schwabe, Blaine Gable Schwabe, Gotwals; Gable Bill Gotwals;Wallander, Vinson Bill Wallander, & Elkins; Vinson and Charles & Elkins; Snyder, and TrialCharles Attorney Snyder, Office of Trial the AttorneyUnited States Office Trustee of the United States Trustee CLE CREDIT: This course has been approved by the Oklahoma Bar Associa- 1 p.m.1:00 Drilling Drilling on On Anyway Anyway Energy Energy Co. Co. Chapter Chapter 11 Bankruptcy 11 tion Mandatory Continuing Legal Education Commission for 12 hours of Part Bankruptcy 2 Part 2 mandatory CLE credit, including 1 hour of ethics for both days, 6 hours of 1:501:50 p.m. Break Break mandatory CLE credit, including 1 hour of ethics for Thursday, Dec. 3 only, 2:00 Judges Panel 2 p.m. Judges Panel and 6 hours of mandatory CLE credit, including 0 hour of ethics for Friday, Honorable Sarah Hall & Honorable Janice Loyd of Dec. 4 only. Honorable Sarah Hall & Honorable Janice Loyd of the the United State Bankruptcy Court for the Western United States Bankruptcy Court for the Western District District of Oklahoma; Honorable Terrence Michael TUITION: $225 (both days); or $150 (one day) for early-bird registrations of Oklahoma; Honorable Terrence Michael and Honorable and Honorable Rasure of the United States received with payment at least four, full business days prior to the first semi- Dana Rasure of the United States Bankruptcy Court for nar date; $250 (both days), $175 (one day) for registrations received with Bankruptcy Court for the Northern District of the Northern District of Oklahoma; and Honorable Tom payment within four, full business days of the first seminar date. $275 Oklahoma; and Honorable Tom R. Cornish of the R. Cornish of the United States Bankruptcy Court for the walk-ins (both days) $200 (one day). To receive a $10 discount for the live United States Bankruptcy Court for the Eastern Dis Eastern District of Oklahoma onsite program, register online http://www.okbar.org/members/CLE. You trict of Oklahoma may also register for the live webcast but no discount is available. 3 p.m.3:00 Adjourn Adjourn

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Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2313

Theme: Lawyers in Leadership pg. 2346 Due Process in Editor: Melissa DeLacerda Tax Sales contents Nov. 21, 2015 • Vol. 86 • No. 30 Departments 2316 From the President 2366 From the Executive Director 2367 Editorial Calendar 2368 Law Practice Tips 2371 Ethics & Professional Responsibility 2373 OBA Board of Governors Actions 2377 Oklahoma Bar Foundation News 2380 Young Lawyers Division 2382 Calendar 2384 For Your Information 2387 Bench and Bar Briefs 2389 In Memoriam 2393 What’s Online 2400 The Back Page Plus 2338 Financial Institutions and Commercial Law Section Note: Oklahoma Enacts 2010 Amendments to UCC Article 9 By Alvin C. Harrell and Fred H. Miller 2342 Oklahoma’s Family Wealth Features Preservation Trust: Now More Than Ever 2318 Lawyers in Leadership: By Philip R. Feist 2346 Due Process in Tax Sales Jari Askins By Ashley Warshell and Terrell Monks David Boren 2351 Electronic Commerce and Incorporation by Reference in Gary Clark Contract Law By Alvin C. Harrell Mark Hammons 2359 Annual Meeting Highlights V. Burns Hargis Jason Hitch pg. J. Clifford Hudson Natalie Shirley 2351 Electronic Lt. Gen. Harry M. Wyatt III Commerce

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2315 FROM THE PRESIDENT Judicial ‘Reform’ Study Foretells Future Legislative Actions By David Poarch

Earlier this month, the Oklahoma House of Representa- We are not alone. It is evident that tives scheduled several interim studies intended to address issues protecting this fundamental constitu- affecting all Oklahomans. No doubt, these studies foreshadow sub- tional structure matters as much to non- jects that will be addressed in the upcoming session of the Legisla- lawyers. DRI, the self-described “lead- ture to commence in February 2016. Having said that, as lawyers we ing organization of defense attorneys should pay particularly close attention to and in-house counsel,” one interim study that was conducted — (www.dri.org) last month Interim Study H15-121 to address the pro- released its Fourth Annual fessed need for “judicial reform.” National Poll on the Civil If protecting Justice System showing that a The detailed justification for the study large majority of Americans, included, among others, assertions that the the public’s across more than 10 demo- courts have “stricken several enactments of graphic categories, oppose the Legislature without just cause,” through right to a legislative or executive inter- “actions that constitute an abuse of power, fair trial is ference intended to influence judicial tyranny, usurpation of the role of the decisions of the courts. the Legislature and legislating from the a “special bench,” including among others, abortion. Among registered voters, According to the request, part of the prob- interest,” then the poll found that 68 percent lem “is that the judicial selection process in oppose any attempt to reduce Oklahoma is tilted sharply toward the law- so be it. court funding by state legis- yer’s special interest group, the Oklahoma lators because of unhappi- Bar Association (OBA).” ness with a court decision; opposition that is bipartisan Branding the Oklahoma Bar Association (Democrats 71 percent; Republicans 63 as a “special interest group” is, for lack of a better term, rather laugh- percent, Independents 69 percent). Like- able. To suggest that our association represents one unified “inter- wise, voters oppose other forms of retal- est” flies in the face of reality; the reality that our membership runs iation as well. Sixty percent would the broad gamut of the political spectrum. Perhaps the best evidence oppose action by legislators to limit the of this reality is the fact that the legislator call- court’s ability to rule on certain issues, ing for this interim study is one of our own and 55 percent oppose efforts to remove members! I am confident that there are those judges over disagreement with court among us who hold a different view. decisions. Predictably, Interim Study H15-121 will Regardless of your position on the prompt legislative proposals in the next ses- need for Interim Study H15-121, I hope sion. Action that we as members of the third you will find time to let your local legis- co-equal branch of government have a sworn lators know how you feel. Let them duty to engage with to ensure that any pro- know that as lawyers our only special posed changes, by whomever and for what- interest is in continued access to fair and ever reason, do not undermine the way we impartial justice for all citizens, not govern ourselves, which includes the consti- guaranteed outcomes for a select few tutional guarantee that all citizens have access brought about by threats of retaliatory to fair and impartial courts. If protecting the legislative action. President Poarch public’s right to a fair trial is a “special interest,” then so be it. To read President Poarch’s letter to the editor practices in Norman. on this topic sent to newspapers statewide, go to [email protected] www.okbar.org. 405-329-6600

2316 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Associa- tion. All rights reserved. Copyright© 2015 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or Volume 86 u No. 30 u Nov. 21, 2015 staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or JOURNAL STAFF BOARD OF EDITORS implied by publication. Advertisers are solely responsible for the content of their ads, and JOHN MORRIS WILLIAMS, MELISSA DELACERDA, the OBA reserves the right to edit or reject Editor-in-Chief Stillwater, Chair any advertising copy for any reason. [email protected] LUKE ADAMS, Clinton Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of CAROL A. MANNING, Editor DIETMAR K. CAUDLE, Lawton Editors. Information about submissions can [email protected] be found at www.okbar.org. RENÉE DEMOSS, Tulsa LORI RASMUSSEN, BAR Center Staff AMANDA GRANT, Spiro Assistant Editor John Morris Williams, Executive Director; [email protected] ERIN MEANS, Moore Gina L. Hendryx, General Counsel; Joe Balkenbush, Ethics Counsel; Jim Calloway, EMILY BUCHANAN, SHANNON L. PRESCOTT, Director of Management Assistance Program; Advertising Manager Okmulgee Craig D. Combs, Director of Administration; [email protected] Susan Damron Krug, Director of Educational MARK RAMSEY, Claremore Programs; Beverly Petry Lewis, Administrator MACKENZIE MCDANIEL, MCLE Commission; Carol A. Manning, Director LESLIE TAYLOR, Ada of Communications; Robbin Watson, Director Communications Specialist [email protected] JUDGE ALLEN J. WELCH, of Information Technology; Jane McConnell, Oklahoma City Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, Debbie Maddox, Katherine Ogden, OFFICERS & Steve Sullins, Assistant General Counsels BOARD OF GOVERNORS Manni Arzola, Gary Berger, Debbie Brink, DAVID A. POARCH JR., President, Norman; Laura Brown, Emily Buchanan, Tanner Condley, Cheryl Corey, Nickie Day, GLENN A. DEVOLL, Vice President, Okla- Ben Douglas, Dieadra Florence, Johnny homa City; GARVIN ISAACS JR., President-Elect, Oklahoma Marie Floyd, Matt Gayle, Marley Harris, City; RENÉE DEMOSS, Immediate Past President, Tulsa; Brandon Haynie, Suzi Hendrix, Misty Hill, ROBERT D. GIFFORD II, Oklahoma City; JAMES R. GOTWALS, Debra Jenkins, Durrel Lattimore, Tulsa; JAMES R. HICKS, Tulsa; DOUGLAS L. JACKSON, Enid; Mackenzie McDaniel, Renee Montgomery, JOHN W. KINSLOW, Lawton; RICKEY J. KNIGHTON II, Sharon Orth, Lori Rasmussen, Wanda F. Norman; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Reece, Tracy Sanders, Mark Schneidewent, Jan Thompson, Krystal Willis & Oklahoma City; KEVIN T. SAIN, Idabel; RICHARD STEVENS, Roberta Yarbrough Norman; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Oklahoma Bar Association 405-416-7000 Miami; LEANNE MCGILL, Edmond, Chairperson, OBA Young Toll Free 800-522-8065 Lawyers Division FAX 405-416-7001 Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published three Ethics Counsel 405-416-7055 times a month in January, February, March, April, May, August, General Counsel 405-416-7007 September, October November and December and bimonthly in Law-related Education 405-416-7005 June and July by the Oklahoma Bar Association, 1901 N. Lincoln Lawyers Helping Lawyers 800-364-7886 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage Mgmt. Assistance Program 405-416-7008 paid at Oklahoma City, Okla. Mandatory CLE 405-416-7009 Subscriptions $60 per year except for law students registered with OBJ & Communications 405-416-7004 the OBA and senior members who may subscribe for $25; all active Board of Bar Examiners 405-416-7075 members included in dues. Single copies: $3 Oklahoma Bar Foundation 405-416-7070 Postmaster Send address changes to the Oklahoma Bar Association, www.okbar.org P.O. Box 53036, Oklahoma City, OK 73152-3036.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2317 Lawyers in Leadership

mong our peers, and even among nonlawyers, it is widely acknowledged that service and leadership are core values of Athe legal profession. Many of us can relate to the notion that service beyond self and a willingness to contribute to the greater good in some way pointed us in the direction of law school. As a result, the legal profession is well represented at all levels of leadership. In Oklahoma from the beginning, lawyers have served as governors, state legislators, judges, prosecutors, general counsel, law firm managing partners, heads of corporate, energy, banking, government and nonprofit organizations. And we continue to do so. This feature article highlights a few of the many Oklahoma Bar Association members who have distinguished themselves as leaders outside the practice of law. They share how valuable their legal education has been — and their secrets of success, which can be used as inspiration for other lawyers to become leaders. — David Poarch, OBA President

Jari Askins Administrative Office of the Courts Administrative Director

he red dirt of southwestern Oklahoma is seemingly Tembedded in my DNA. I grew up in Duncan and still have a home there. It is where I learned to work hard, dream a little, have faith and care about my community. My parents were very civic-minded. They taught my brother, sister and me that it is important to care about what happens to other people. Dad was a businessman who valued honesty, integrity and a “customer-first” attitude. Mother was a volunteer leader with several local and statewide organizations. All their lives, they modeled for us how to give back to our community. Dad taught us the work ethic that all three of us have to this day and that same work ethic is now emerging in our next generation, as well. Both of my parents instilled in us the lesson that giving back always matters.

2318 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Law school was never my plan. Two years after college, I decided to study law simply because I wanted to learn more. When speaking with students, I often share a favorite quote from Abraham Lincoln, “I will study and get ready and perhaps some- day my chance will come.” Taking chances I never imagined led to a career I never dreamed. My family’s business is in the land title industry, so I began my practice in oil and gas law. That path changed after I accepted appointment as special judge for Stephens County. Serving on the bench really is where I developed the desire to become a legislator – to run for state representative. Jari Askins at her desk in the AOC office, located in the Oklahoma While writing or debating legislation, I Judicial Center in Oklahoma City. relied upon my judicial experience to consider how new laws would be implemented and interpreted. My legal background has helped me at every stage of my career. I learned to analyze situations and resolve issues whether it was the application of statutes or agency policies or government regulations. Those skills My legal background has were valuable as I worked to understand the needs of my constituents and to assist in finding the resources helped me at every stage of my they sought. Returning to public service this past year at the Pardon and Parole Board and the Department of career. I learned to analyze Human Services allowed me to utilize those skills situations and resolve issues again in addressing problems from financial shortfall to children in crisis. whether it was the application Good lawyers are good communicators. Communi- of statutes or agency policies or cation is fundamental to building trust and building a government regulations. team. Without support, it is difficult for anyone to achieve success as a leader. No one can do it alone. And now my career has come full circle. With the opportunity to serve as administrative director of the courts, I am once again working with Oklahoma judges, court clerks and court reporters.

What tips would you give someone What advantage does your legal leaders are good communicators wanting to develop their leadership background give you in your current who are willing to listen to and skills? leadership role? accept ideas from different layers within the organization. They build Leadership takes practice, prac- Law school required critical think- strong teams and have the self- tice, practice. The OBA Leadership ing, analysis of difficult (often confidence to recognize that Academy, Young Lawyers Division emotional) situations and problem strengths are best spread among and OBA committees offer numer- solving, which helped equip me for several, not vested in a few. ous opportunities to become diverse roles in public service. involved and learn or enhance To what would you attribute your What are the traits of an effective skills that will benefit an individual success as a leader? leader? on any career path. I have had help from a lot of other Integrity and dependability are people. My success is truly more important than any title or because of the people who were leadership position. My favorite willing to give me a chance,

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2319 whether it was by appointment as in a respectful manner. Lawyers members of my team, she instilled a judge or by election to office. I can exercise the same advocacy in confidence in me that I could be a tried to respect their trust by civic organizations and volunteer leader of my classmates. The first working hard not to let them service projects and, perhaps, time I recall making signs and ask- down. keep the art of civil discourse from ing for votes, I was 11 years old. disappearing. After winning my age division, I Why would you encourage other had to make a short talk each lawyers to get involved in What was your first leadership role week in front of a group of 50-55 leadership? or how did you first become young girls. I learned about the involved in leadership? Lawyers learn to advocate for dif- expectation and responsibility to ferent positions in a legal setting. My second-grade teacher picked motivate others and to lead by Those skills are important in me as a team leader in class for a example. teaching a younger generation math exercise. By giving me the how to express differing opinions responsibility of choosing the

David Boren OU President

have not practiced law in more than 40 years, but every Iday I am grateful for my legal education. Throughout my time as a state legislator, governor, U.S. senator and now as a university president, I have made use of what I learned in law school. In every situation it has been helpful to try to “think like a lawyer.” Law schools give their students that ability as we go through the rigors of learning case law, procedure, legal principles and argumentation. “Thinking like a lawyer” means putting facts into a conceptual and analytical framework. It means carefully weighing the alternatives. It means setting priorities and recognizing risks. It means placing today’s situation in an historical context. It also means appropriately documenting a course of action and “making a record.” Those learned skills are applicable in making nearly every major decision which the leaders of any organization must make. I did practice law as a sole practi- tioner in Seminole and Wewoka at least part-time for six years. Coun- seling and representing others in a

President David Boren with students on the OU campus in Norman. Photo Credit: Aaron Snow

2320 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 myriad of situations was extremely rewarding. After I became governor of Oklahoma, I, of course, ceased to actually practice as a lawyer, and I never returned to the practice. As a state legislator my legal training was very helpful. When I first entered the Legislature, the staff was very small, and it was sometimes faster to draft my own bills. Obviously, legislative drafting and the ability to interpret and modify proposed bills and existing laws was learned in law school. I also At the university, legal was able to draft my own amendments and rapidly make issues must be faced each day needed changes in the course of a legislative debate. ranging from questions about When I later served in the U.S. Senate, I still sometimes drafted important amendments or bills myself. Once a par- ‘state action,’ to free speech liamentarian ruled one of my amendments “out of order” issues, to the boundaries of because it had not been through the bill drafting staff. The top parliamentarian was called, and he ruled that my amendment disciplinary actions. was “in order” because I had properly drafted it. I silently thanked my law school training. That self-drafted amendment ended up creating the largest educational overseas study program since the Fulbright Program! As governor, the ability to analyze legal issues was extremely important. There were issues ranging from the meaning of statutes to questions of constitutional authority. Presidents of universities and governors are also often sued in their official capacities, and it is helpful to be able to discuss issues in a shorthand fashion with legal counsels. What tips would you give someone wanting to develop their leadership At the university, legal issues must be faced each day rang- skills? ing from questions about “state action,” to free speech issues, to the boundaries of disciplinary actions. I would read the biographies of great leaders and study their decision-mak- Whether it has been in my role as a legislator at the state and ing. It is crucial to develop a moral federal level or as a governor, or now at the university, virtual- compass and have a firm grasp of ly every day I have needed to “think like a lawyer.” I will what is right and wrong. Then, a lead- always be grateful to the faculty at the OU College of Law for er must have the courage to do what the knowledge I received from them. Law professors certainly is right and fear not. helped shape my future. There is no better preparation for leadership in any sector than the study of law. What advantage does your legal background give you in your current leadership role? always put ahead of self-interest. Why would you encourage other The ability to analyze problems in a Of course, the ability to think lawyers to get involved in coherent way and “to think like a law- critically, be decisive and give leadership? credit to others are also very yer.” One must make the right deci- Lawyers understand that the rule important. sion and then “make a record” to of law is the glue of our society. demonstrate what has been done To what would you attribute your As stewards of the law, those and why. success as a leader? with legal training have an obligation to lead. What are traits of an effective leader? I have tried to always realize that Unselfishness is critically important. leadership is a team effort and What was your first leadership Too many so-called “public servants” almost nothing can be achieved role or how did you first become forget that public service is about by yourself alone. involved in leadership? service and not about power. Being a I became a leader in student true leader requires that the good of organizations while I was still the institution or the country is in school.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2321 Gary Clark OSU Senior VP and General Counsel

fter the first few weeks of law school, I was dismayed to Ahear so many of my classmates say how much they “loved” law school. To the contrary, I was completely out of my comfort zone. For the first time in my life, the teachers were not giving us answers, they were just asking questions. How were we to know what to memorize and regurgitate on tests — which by the way now only happened once a semester? There was no way to build up a nice grade average, just a high-stakes test at the end of the semester. The Socratic Method was an entirely new experience for a good many of us. It was only when we learned that the goal of our law school profes- The fear of being sors in asking a seem- embarrassed can be a great ingly never-ending series of questions was motivator. All law students, What tips would you give someone to teach us how to some faster than others, wanting to develop their leadership “think like a lawyer” skills? rather than to help us learn to spot and narrow There are many books and articles on memorize the “law” (an the real issue to leadership styles. Understanding the impossible task), that . “theory” of leadership may be helpful. the fog began to clear. be decided But the only way to improve your In the spring of my leadership skills is to get involved in first year of law school, an organization that you believe in so the movie, The Paper you can devote the time and energy Chase, came out. My wife and I attended. I saw characteristics of to making a difference while practic- some of my professors in Professor Kingsfield and of some of ing and honing your leadership skills my law school classmates in the movie characters in the study as you move up through the ranks. groups. Professor Kingsfield had the line, ”[y]ou come in here with a head full of mush and you leave thinking like a lawyer.” What advantage does your legal After the movie, my wife disbelievingly asked, “It’s not like background give you in your current that, is it?” Well, yes and no. No professor had called students leadership role? to the front of the class, handed them a dime for a pay phone Practicing law is all about solving and told them to call their mother to come and get them. But there were some professors who seemed to enjoy embarrassing problems. Getting the facts and elimi- students. nating the irrelevant information, then researching the controlling laws, reg- The fear of being embarrassed can be a great motivator. All ulations, customs and practices to law students, some faster than others, learn to spot and narrow find a solution. I use those same the real issue to be decided. As Einstein stated, “A problem skills daily in seeking ways to resolve properly defined is often half solved.” They also learn to sift the various issues that are presented through the facts and determine which of them are really impor- to me. I have found that I don’t gen- tant to the resolution of the issue presented as well as those that erally see the questions that have are merely “red herrings.” Various possible alternative solutions easy answers. must be considered and evaluated. Lastly, they learn to commu- nicate concisely, whether in writing or orally.

2322 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 What are traits of an effective leader? Effective leaders are honest and ethical. Leaders care about people and want to leave the world, region, state or community in better shape than it was found. They are passionate about the common goals of the group. They work together to define and refine the realistic goals the group wants to achieve. Leaders don’t worry about who gets the credit, but about the results. They recognize the various talents of the members of the group Gary Clark presents Professor Hailin Qu with the OSU Eminent Faculty and seek their input and help in the Award. Photo Credit: OSU areas where they can be most effective. A leader makes everyone feel But law school is not the end of one’s education on how to they are an important part of the think like a lawyer. I was fortunate to practice with three different group’s effort and praises their con- law firms in private practice, learning from exceptional lawyers in tributions. Leaders are persistent, each of them. John Athens was an excellent mentor, teaching the because success does not always value of leaving no stone unturned in discovering the facts and happen immediately or easily. They examining various legal theories that might be dispositive of a are prepared for meetings and activi- case. He also taught the absolute necessity of being professional ties so that the members of the group even on the few occasions when the opponent was not. A leader feel that real progress is being made. must be open to all ideas, regardless of who suggests it. To what would you attribute your Former partners Gary Baker, Craig Hoster, Gary McSpadden success as a leader? and Dana Rasure are all outstanding examples of exceptional lawyers of great intellect and the highest integrity who, in managing Someone else will have to judge how a law firm, placed great value on consensus building. Leaders successful I have been, but I have realize that the team won’t be nearly as productive if the members tried to employ the traits listed above are not “sold” on the solution. A successful leader will ensure that when I have been involved in an orga- everyone helps set the goals and understands their role in attain- nization, whether as a leader or as a ing those goals. member. Lawyers must apply logic as they resolve issues. The value of Why would you encourage other clean logical thinking was demonstrated regularly by a younger lawyers to get involved in leadership? lawyer (and now successful banker), Dee Sokolosky, who is still the most logical thinker I have encountered. Realizing the logical There is a real sense of inner satisfac- consequences of an action is critical to success. Muddled thinking tion to have played a role in meeting can sabotage the best-intentioned plan. a group’s goals. It may be that no one will remember, or even know of, your Lawyers are taught and expected to have a heightened sense of part in some successful project. But ethics in all instances. We have all seen examples of temporary you will see little children playing on success, e.g., Enron, where there is an absence of ethical behavior. that new playground equipment, bat- Enduring achievements require ethical decisions by the organization. That starts with the leader. Leaders will never have the tered spouses staying temporarily in respect and support of their team if they lack integrity. a safe place or simplified discovery rules that save clients considerable I found the practice of law to be fulfilling. Working with and expense, and know you were an inte- against good lawyers is rewarding. But clearly the most enjoyable gral part of the effort that led to this part was helping people with problems or matters they did not progress. have the ability to solve on their own. Having served on the Board of Regents for Oklahoma State University and the A&M Colleges, I developed a deep passion for continued on next page the importance of higher education for young, and not so young, students. When the opportunity to serve as a vice president and

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2323 general counsel for the Oklahoma State University Foundation What was your first leadership role or came my way, I felt so fortunate. Not only could I use my legal how did you first become involved in training and experience, but I could also be involved in the man- leadership? agement of an organization dedicated to raising funds to pro- My first significant leadership role was vide scholarships for students and resources for the university. (There was the side benefit of no more timesheets.) as a state officer in the FFA, a great organization to develop young leaders. When, a few years later, soon-to-be OSU President Burns Har- My experience there played a part in gis (a lawyer by training and experience) shared his vision for my agreeing to serve on the Tulsa OSU and asked me to assist him in making it happen, I over- County Bar Association Board of Direc- came my initial concerns about becoming an “administrator/ tors years later. Serving on the board, I bureaucrat” and gladly joined him. What a great experience it came to feel that we needed significant has been — even better than I imagined! Working with a vision- improvements in several areas. I ary and tireless leader is a blessing. Good things are happening thought I could help bring those about at OSU and to be even a small part of that is amazingly gratify- by running for president. Fortunately ing. “Thinking like a lawyer” has been invaluable to me daily for me, enough members were willing as I am called upon to resolve issues that can’t be predicted but to give me that chance. With the help must be expected. of a number of lawyers and the bar In short, legal training does an excellent job preparing leaders staff, we were able to accomplish to have the skills to define problems precisely, to gather the rele- those changes. vant facts, to integrate different perspectives and solutions, to forge a consensus on a solution and then to implement it in a way that makes a positive and ethical difference. Isn’t that why most of us went to law school in the first place, to have a fulfilling life by making a difference — leaving things better than we found them?

Mark Hammons Oklahoma Democratic Party Chair

did my undergraduate work at the University of Oklahoma. IAfter graduating, I was elected to the Oklahoma House of Representatives. While serving as a House member, I attended Oklahoma City University at night to get my law degree. I briefly associated with a law firm, before starting my own firm in 1997. Like many starting lawyers, I began with a general practice doing all forms of legal work. Because of my interest in politics and government service, I started representing some of the cities and towns in my home area of Canadian County. My work for city government lead me into employment law and civil rights work — What tips would you give someone the area where I found my greatest passion. wanting to develop their leadership I developed my private practice focusing on civil rights work skills? and later concentrating on employment discrimination. You become a leader by taking In January of this year I decided to run for chairman of the Okla- chances and working hard. Both homa Democratic Party, and I was elected. I sought this position are required. If you play it safe, because I felt Oklahoma was moving away from its populist roots. you can only be a follower. If you Political party work challenged me to use my legal training in a don’t work hard, you will not be a new way. The first opportunity to do this came shortly after I was

2324 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 elected chairman. I was faced with a new set of ethics rules that prohibited raising money and distributing campaign material on state- owned or leased property. Political party I understood that this restriction violated basic free speech rights, and I asked the Oklahoma Ethics Commission to withdraw those work challenged me to rules. When the commission failed to act in a timely manner, it use my legal training in became necessary to file suit setting out why the rules were invalid and should be set aside. We won that battle and reopened traditional a new way. forums such as college campus and state parks for political activities. I expect there will be other opportunities for my legal experience to be helpful in preserving the rights of citizens to participate in elections. While my experience involved constitutional issues, each attorney has experience that directly relates to the rights and interest of citizens. Whether it is understanding the difficulty of divorce and custody, the necessity of caring for injured citizens or bal- ancing the rights of the public, the victim and the accused in the criminal system, our profession invites us to be leaders. I encourage every attorney to rise to that challenge.

Mark Hammons appears with Mike Turpen, Kevin Ogle and Oklahoma GOP Chair Pam Pollard on the KFOR TV show, “Flashpoint,” a political affairs talk show.

leader even if you offer new ideas inspiration with realism. No task would be tragic, because the and approaches. Part of being a should be too small and no hours judicial branch is charged with leader is earning respect and that should be too long. He or she protecting our most basic rights means following up ideas with must lead by action and not and freedoms and dispensing jus- action. just words. tice. When we take our oath as attorneys, we are promising to What advantage does your legal To what would you attribute your represent not just our client as background give you in your current success as a leader? individuals but an entire system leadership role? I wouldn’t call myself a success. of justice. Being a leader is part The law trains you to analyze, You keep working to achieve and of the job. organize and present facts and let others decide how to view the What was your first leadership role ideas in order to persuade a jury. results. or how did you first become A good leader needs that skill. Fur- Why would you encourage other involved in leadership? thermore, organizing and analyz- lawyers to get involved in ing facts helps a leader to under- I ran for student council president leadership? stand and avoid bad decisions. in high school. I’ve been involved Our profession is uniquely inter- ever since. I want to at least play a What are the traits of an effective twined with the judicial branch of role in the decisions that affect leader? government. If we don’t attempt to me, so what choice do I have? An effective leader must balance exercise positive leadership, the thoughtfulness with action and entire judicial branch fails. That

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2325 V. Burns Hargis OSU President

ore than half of MAmerica’s presidents have been lawyers. The others probably wished for a In all my career law degree on many occasions. A legal education positions, and particularly prepares leaders. It teaches as president of Oklahoma critical thinking, problem solving, justice and fairness, State University, I have and many other qualities. learned the most by A functional society is listening. founded on the rule of law. Every issue facing society has a legal aspect and individuals with the skills and qualities garnered from a legal education have distinct perspective and contributions to offer no matter where their careers What tips would you give someone take them. wanting to develop their leadership skills? My legal education prepared me well for a diverse career that has included the courtroom but extended to politics, banking, I don’t think you can learn to be a television and now higher education. leader from a book. Getting involved A law degree provides a unique education that greatly in organizations whose mission you expands understanding and abilities. The development of ana- support is the best way. Being a lytical skills enhances curiosity and creativity, two things that good follower is the first step. Be the tend to be pounded out of youngsters as they start in school. “go-to” person the leader turns to Young children must conform rather than ask why. Curiosity for difficult tasks. Then, volunteering and creativity lead to solutions and innovation that your organi- to take on projects, especially when zation and our world need. others have not, and working with different kinds of personalities to As a law student, it may seem the research and fact-finding perform the task will teach you how will never end. The payoff for that work extends well beyond to successfully lead an effort. You’ll the current project or case. Many of the decisions faced on any make mistakes but you learn from job involve complexity, uncertainty and, frankly, they can get them. What advantage does your legal strategy to solve the problem. • Creative with a high tolerance background give you in your current Being able to present the relevant for mistakes, resilient leadership role? facts and issues in a way that • Enthusiastic Being a leader requires the ability to leads to the conclusion you • Collaborative persuade others to share and adopt advocate is a key leadership • Ability to delegate your vision. That’s what lawyers do. attribute. • Positive attitude • Decisive, makes timely They persuade one’s client, the What are traits of an effective decisions opposing attorney, a judge or a jury leader? to adopt their position. I also think • Can articulate the vision lawyers are trained to analyze a • High moral character • Sense of humor, especially problem logically and develop a • Good listener, empathy self-effacing humor

2326 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 messy. The research skills learned in law school lead to informed To what would you attribute your decision making and enhanced value to employers. success as a leader? Time in law school also sharpens interpersonal and communica- To the extent I have had success, I tions skills such as reading comprehension, public speaking and have enjoyed taking on difficult tasks writing. Those qualities add knowledge, instill confidence and help and persuading the right people to build the relationships that lead to success. join in the effort. I try to emulate the My biggest job as president of Oklahoma State University is traits described above. When I came interacting with the university’s many stakeholders. That includes to the OSU presidency, the creation of faculty and staff who make things work on our campuses and in the fundraising campaign for $1 bil- our classrooms, alumni and donors that provide critical funding, lion was a difficult task to be sure. state leaders who oversee our state’s public universities, and most But, it was achieved because the goal importantly, students who have many choices of where to earn was audacious and difficult, but peo- their higher education degree. ple were convinced of the benefits that would inure to OSU and bought (literally) into the effort. Why would you encourage other lawyers to get involved in leadership? For two reasons: 1) as noted, lawyers have been trained to persuade others and, as such, are uniquely suited to lead important efforts to a successful conclusion and 2) as David Brooks has written, we all need to think more about our eulogy than our resume. With lawyers leading, good things can happen and the lawyers involved are President Burns Hargis and students signal “Go Pokes” at freshman convocation better for it. Just think of all the in Stillwater. Photo Credit: OSU lawyers who were leaders in the founding of our nation. When it comes to communication skills, I want to borrow from What was your first leadership one of our nation’s most influential lawyers, and the namesake of role or how did you first become my Oklahoma City high school, John Marshall. He spoke to what I involved in leadership? think is one of the greatest qualities gained from a legal education It would have been in college at OSU. when he said, “To listen well is as powerful a means of communication and influence as to talk well.” I moved so much before college, I wasn’t anywhere long enough to get In all my career positions, and particularly as OSU president, I into a leadership role. But, my frater- have learned the most by listening. Listening leads to new ideas, nity pushed me into leadership roles, smarter decisions, understanding, compassion and better and I discovered that I enjoyed being leadership. involved in trying to make things bet- It’s hard to slow down and take the time to truly listen. Every ter. I’ve done it ever since with mixed organization has multiple stakeholders. You are wise to give each a success! voice. Wherever your career takes you, listen. My undergraduate degree from Oklahoma State University and my law degree from the University of Oklahoma are among my most prized possessions and have led to a career rich with opportunities and fulfillment. I recommend a law degree to anyone determined enough to achieve it.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2327 Jason Hitch Hitch Enterprises Co-CEO and Chairman of the Board

started law school with the full expectation of practicing law Ifor a few years in Oklahoma City or elsewhere to gain experience before heading back to the home company in Guymon. I have a younger brother, and it wasn’t exactly clear that there was room for both of us in my family company. I started law school in the fall of 1994 and graduated in the spring of 1997. At my grandfather’s urging, I took some work with an attorney named Terry Weins, who then had an office on N.W. 59th between N. May and N. Independence Ave. in Oklahoma City. During the spring of 1996 my grandfather had a heart attack and passed away. At that point my father called me and asked that I change my plans and move home immediately after law school so that I could start learning the family business from the managerial side of things. That, as they say, changed everything. What tips would you give I started spending more time someone wanting to devel- It certainly wasn’t my looking at our industry news op their leadership skills? plan to be leading a company and shaping my law studies I would recommend that around what I “thought” I by 37 but that is what would most need. they get involved in community or social organiza- happened. I certainly couldn’t I was wrong on a lot of tions. I find that taking a have done it without my assumptions as to what I would leadership in these organi- need to know, but it worked out zations is great practice brother and my wife but just fine. I also started attending and fantastic networking, cattlemen’s meetings and partici- the biggest help was a very pating in committees. I was also not to mention there is a experienced staff. taking some computer courses at big need and people will OU and then teaching classes to overlook any learning company employees, which was errors that are made by great experience at standing up volunteers. I also find this and speaking in front of people. is good practice for new I changed jobs and went to attorneys as we tend to be work at the Oklahoma Supreme very opinionated and sometimes Court in 1996 in the IT Department. Justice Kauger was just start- hard to work with as a consequence ing her push to overhaul the case reporting system and modern- of the assertive instruction techniques ize it away from Westlaw. It was very interesting, and several of used in law school. Working with other my fellow students were there to boot. Later, we would some- volunteers who can and will quit can times get together and study for the bar exam at lunch and make you learn a bit of politics very after work. quickly and for me retaught me to “listen” to the other people on my committee.

2328 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 I moved home around Jan. 1, 1998, and went to work in the fami- What advantage does your legal ly company immediately. I started out doing some legal work on background give you in your current our land files and talking to the oil and gas companies that were leadership role? operating on our land. I also started working with our managers and supervisors on employee-related issues. I think that the leadership roles I have held since law school have mostly But my biggest learning opportunity was through our member- benefited from my level-headedness. I ship in several industry organizations. In 1997 the furor over the learned early in law school not to let hog industry coming to Oklahoma was at its highest pitch, and I spent a lot of time at the Capitol trying to head off a moratorium. I myself be baited or angered by other spoke in front of countless legislators and their staff and commit- people if at all possible. Keeping my tees. It was disheartening to lose the issue, but it was great experi- cool when crap hits the fan is ence — and I got to see a lot of very good orators and listen to a one of the big blessings I received great deal of political wrangling. The industry group committees from law school. Other less obvious are led by volunteers, and at my father’s urging, I volunteered to advantages are some basic knowledge join committee leadership. of process and bureaucracy. I also My father became ill with cancer in 2003 and my brother and I have found that thinking things started taking over a lot of the company duties. By 2008 he had through before answering was some- passed away, and we were running the company. It certainly thing that I learned in my legal train- wasn’t my plan to be leading a company by 37, but that is what ing. Sometimes the right answer is “I happened. I certainly couldn’t have done it without my brother don’t know or I need to research that.” and my wife, but the biggest help was from a very experienced staff. We are a fifth-generation family company, and some of our What are traits of an effective leader? employees are/were 30 to 40-year employees — some even second For me and my applications, effective and third generation with us. leaders are good listeners but also The company is Hitch Enterprises Inc., which is headquartered in very good managers of the time you Guymon and has 12 subsidiary corporations. It has approximately take from other people. As a volunteer 300 employees who work in cattle feed yards, pork production and leader, everyone is there on their pri- farming and ranching in addition to managerial and professional vate time, and leaders need to respect staff. The company is a family-owned company wholly owned by that. I carry that over to my employ- my brother and me. It was founded in 1884 as a cattle ranch and ees. I will listen attentively, but I will farm. I am co-CEO and chairman of the board for the company. also keep things moving and cut off repetitive speakers. I try to set hard start times and solid stop times. Most successful leaders I have been around are good at managing time, expectations and spend more time taking care of issues before the meeting than in the meeting itself. To what would you attribute your success as a leader? I had a great leader as a father and grandfather, so I was raised around it to some extent. I also had lots of opportunity by way of volunteering and, believe me, I learn mostly the hard way by screwing up. I can learn from other people’s mistakes, but I really remember it if I screw it up myself. A cowboy at Hitch Enterprises rides through the feed yard looking for sick animals. In Being willing to volunteer the background is the feed mill for the feed yard.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2329 and volunteer to lead is a commit- clients got themselves into the board and then as the chair right ment, but it has been a great help messes that we have to work out of law school. The chamber to me. on as attorneys. was going through some very difficult reorganization struggles, and Why would you encourage other What was your first leadership role I learned a lot. The beef associa- lawyers to get involved in or how did you first become tions were looking for new com- leadership? involved in leadership? mittee leadership at the same time I think it is very rewarding and can My first adult leadership opportu- due to burn out of the prior peo- lead to great networking for work. nity was in the Guymon Chamber ple, so I sort of got to jump into a I also have found that it gives me of Commerce and in the beef clean slate. I found both to be dif- some good perspective on how association committee structure. I ficult but very rewarding. my employees and former was asked to be on the chamber

J. Clifford Hudson Sonic Corp. Chairman of the Board, President and CEO

fter graduating from law school, Leslie, my wife, and I Areturned to Oklahoma City where we had both grown up. Leslie and I had met at Northwest Classen High School. She is an epidemiologist and would be working at the University of Okla- homa; I had secured a job with an Oklahoma City law firm with plans to practice corporate and securities law. It was the early ‘80s though, and the oil bust left everyone scrambling for business. In 1984, I invited an officer of Sonic to a social event, thinking that I might land some Sonic business for the law firm. My guest, however, spent a lot of time telling me What tips would you give someone about a legal opening at Sonic that I might consider pursuing. wanting to develop their leadership skills? I joined Sonic in March 1984 as an attorney and served in that capacity for the next eight years. While many people might have Seek individual and perhaps isolated chosen to keep to that path, my experiences in the first decade of opportunities on short-term projects at my employment at Sonic prepared me to lead the company. work or in the community. My eight years as Sonic general counsel afforded me several What advantage does your legal internal leadership opportunities in the form of leveraged buy- background give you in your current outs in 1986 and 1988 and, ultimately, leading the organization leadership role? through an IPO in 1990-91. Leading those initiatives exposed me to a depth of the financial and operational aspects of the business As CEO of a publicly traded company, I that I had less exposure to strictly as legal counsel. I had become have better appreciation for the areas a significant stockholder and worked in close concert with other of our business that are regulated. members of senior management and key franchisee leadership. From a governance standpoint, my Promotions to CFO in 1992 and to COO in 1993 left me in good legal education is of benefit when position to become CEO in 1995 when that position opened up. In working with the Board of Directors the quick-service restaurant industry, it’s unusual for a CEO to and stockholders. have served as general counsel. As the leader of a public company, however, my legal education serves me well every day, and

2330 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 the critical analysis developed through a legal education helps me My eight years as with decision-making continuously. Governance is a critical competency for any chief executive, Sonic general counsel and as the leader of a public-traded company, that’s particularly afforded me several true of my role at Sonic. Working with an independent board of directors, as well as the company’s senior management, means internal leadership that I utilize my business law education and practice into our work on marketing, operations and human resources in partner- opportunities in the form ship with our franchisees every day. of leveraged buyouts in A legal education and relatively short private law practice 1986 and 1988 and, career prepared me for an exceptional opportunity. My path to CEO of Sonic may not be the most conventional, but law is a ultimately, leading the growing background for CEOs, and I wouldn’t trade it for organization through an another path. IPO in 1990-91.

In addition, the critical analysis skills that a legal education develops helps me determine strategies that will or will not work for our business. What are the traits of an effective leader?

Leaders I admire have: Cliff Hudson with the crew at the Bricktown Sonic in Oklahoma City. • A clear sense of the objectives they Photo Credit: Sonic want to accomplish • The ability to envision and communi- cate strategies to achieve those objectives ers. That success encouraged What was your first leadership • The ability to instill in others a belief me to engage even more and role or how did you become that the path is right, and ultimately became a cornerstone involved in leadership? for my success in business and • A capacity to implement tactics that At the age of 13, I was elected other community endeavors as achieve those same objectives. president of the Webster Junior an adult. To what would you attribute your High School Boys Glee Club. success as a leader? Why would you encourage other This position included the lawyers to get involved in responsibility of conducting the My early engagement as an adolescent leadership? glee club when our choir direc- in school and community activities tor was absent. Leading dozens I would encourage anyone to gave me a sense of potential I might of teenage boys to harmonize get involved in leadership if they have to achieve a positive impact. developed my self-concept and have the desire to be a leader. From high school student council to taught me how to bring a group local political campaigns, I began to together to achieve success. I understand what success looked like draw on that experience today. by working alongside successful lead-

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2331 Natalie Shirley OSU-OKC President and Oklahoma Secretary of Education and Workplace Development

wanted to be a lawyer I since I was 7 years old, although I’m not sure why. No one in my family had a My legal education college education, and my dad taught me to think did not even graduate from high school — but with critically, parse through encouragement from my parents, it was my dream to be a large amounts of dense lawyer. information, and Once I finished law school, repackage that but with no experience in law, What tips would you give someone I decided to collect as many information in order wanting to develop their leadership legal experiences as possible to tell a meaningful skills? to help me find my legal calling. I started with working for story. First and foremost, make sure you a state agency, the Oklahoma understand your team’s worldview. Securities Commission, after You need to understand their perspec- law school. Next, I went into tive, their filters and their personalities. private practice at a litigation Using this information to inform your firm. Then, true to the nature of plans, mine changed; I was leadership is vital. recruited by a Washington, D.C. group to work in the mutual fund industry. For example, I once had a team mem- While in D.C., I learned two things. First, my variety of experi- ber who was a highly combative per- ences made me appreciate being a lawyer. But second, I found I son. In order to lead him, I had to go had a greater interest and aptitude for business. Over time, I was toe-to-toe with him every day on asked to handle fewer legal tasks and increasingly more corporate everything. It was what he understood matters. and what he respected. It was not necessarily my style, but adaptation by a So, although the original plan changed, my law degree and truly, my legal education, continues to be useful. My legal education leader is required to get the best out taught me to think critically, parse through large amounts of dense of his or her team. information and repackage that information in order to tell a mean- I have other team members who work ingful story. These skills are important for day-to-day business: best with praise and yet others who negotiating, contracts, handling personnel matters and problem- need constant feedback. Understand- solving. ing what employees need in order to Additionally, my legal education assists me in establishing a get optimal results is essential to proper relationship with my legal staff. My legal counsel’s job is to effective leadership. understand the law and to recommend courses of action designed to protect the company. My job is to weigh legal counsel’s advice What advantage does your legal with the needs and interests of the enterprise. As a fellow lawyer, I background give you in your current understand the importance of counsel’s opinion and am respectful leadership role? of their views, but my own education allows me to place the proper weight on counsel’s advice. As I mentioned earlier, my legal education taught me how to think Although I am open in this article about my early interest in the critically, parse through large amounts law and how my legal education has informed my practices as a

2332 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 leader, I have to admit, I’ve not always been so open Very quickly, I learned that the correct answer to about my career with casual acquaintances. “What do you do?” was not “I’m a lawyer.” I needed a snappy answer that would shut down further For the 20 years I lived in D.C., I flew to Oklahoma conversation. regularly. On these flights, I was inevitably asked what I did for a living. Early on, I would say I am a Shortly after that epiphany, I sat next to a gentle- lawyer. Inevitably, I would get responses of pity and man who asked the inevitable question, “What do endless lawyer jokes. My occupation was an open you do for a living?” invitation for a frustrating conversation where I was a captive audience to ceaseless droning and unsolicit- I looked him in the eye, extended my arms, cracked ed advice. Keep in mind, these flights were frequent my knuckles and confidently replied, “I’m a procto- and always after a long work week. logist.” My chatty seatmate grew quiet, and I was able to work in peace. I continued to use this response for years.

of information and repackage that information in order to tell a meaningful story. I use those skills in my daily interactions with my team, with stakeholders and with the public. What are traits of an effective leader? There are many traits, such as good judgment, decisiveness and critical thinking that are essential for effective leadership. An overarching trait that is equally important is flexibility. Leaders must be flexible because they are called on to President Natalie Shirley with OSU-OKC students and employees on campus in use different skills at different Oklahoma City. Photo Credit: OSU-OKC times. Sometimes I am the policy In my toolbox are tools such as they do. Lawyers can be leaders leader, and sometimes I am the past lessons, humor, candor, emo- because they have the tools, edu- decision-maker. At other times, tions, the “mommy voice,” timing, cation and ability to analyze and I am the chief team builder or experience and most importantly, think critically. However, this cheerleader, or even comforter-in- the ability to choose a great team doesn’t mean lawyers should be chief, such as when 9/11 occurred who balance my weaknesses. leaders. I say this, because if you or at the death of an employee’s are a lawyer, and you haven’t yet It has been said that Winston child. become involved in leadership, Churchill’s greatest victory was then leadership likely isn’t your To what would you attribute your over Winston Churchill. I think this passion. For example, my husband success as a leader? is true of all of us. I learned a long is an entrepreneur. That’s his pas- time ago when I lost my temper, I I look at my leadership skills as sion and that’s the way his brain lost control of the situation. So, I a toolbox. Just as different jobs works. I am not an entrepreneur. began to intentionally develop the require different tools (you That’s just not the cloth from discipline to control my emotions. wouldn’t use a hammer if you which I was cut. The world doesn’t needed a screwdriver), different Why would you encourage other need leaders for leadership’s sake. issues require different skills. And lawyers to get involved in The world needs just as many truthfully, sometimes I use them in leadership? entrepreneurs, teachers, students rapid succession until I get the and followers. That said, the world I wouldn’t. I say this not because result I want. also needs better leaders. So I lawyers don’t make good leaders;

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2333 would say that if you are already kids who went to this camp paid before I plucked them from the involved in leadership, work hard to go and generally were middle water. to develop your character, skills class kids. As the kids came to the As a young leader, I was a failure, and courage to become an even pool, I would ask if they could and where I failed that week was better leader that others deem swim. If they said, “Yes,” I would that I didn’t understand the culture worthy of following. have them jump into the pool and of the people I was leading. If I swim back and forth. If they said, What was your first leadership role had, I would have understood that “No” (and many would), I would or how did you first become there was no way an inner city kid say “great” and shuffle them off to involved in leadership? was going to admit they didn’t swimming lessons. This system know how to do something. More- Within weeks of working for a worked well. over, I failed to give them a soft large summer camp in 1977, I was However, in the middle of the place to land – a face-saving named (at 19 years old) the direc- summer, we hosted a group of option. Those two lessons have tor of the swimming program. inner city kids for a week, and I informed almost every decision I Campers came to the swimming did with these kids what I had have made since and every path I pool as soon as they arrived so done with the earlier campers. I have taken – whether I was lead- that their swimming level could be asked if they could swim; if they ing a $500 million dollar company evaluated. Those who could swim said, “Yes,” I lined them up and that handled billions of dollars or the length of the pool and back had them jump into the pool to managing 2,000 people. Those could go water skiing and sailing, demonstrate it. Every child I asked lessons still inform my leadership but the others had to take swim- said he or she could swim. I lined today. ming lessons until they could them up, they jumped in and demonstrate they could swim. The almost all of them nearly drowned

Lt. Gen. Harry M. Wyatt III Retired Air National Guard Director

graduated from Stillwater High School in 1967 and went to ISouthern Methodist University in Dallas, Texas, on a football scholarship. I graduated from SMU in 1971 (four-year plan) with a degree in business administration (and lettered in football and baseball). The Vietnam War was still going on, and anyone graduating from college became subject to the military draft unless attending medical school or law school. I had been accepted to SMU law school upon graduation, but the law was changed shortly before I graduated from undergraduate school to eliminate the law school deferment from the draft. So upon graduation with my business degree, I became subject to the draft. I was not real keen on being drafted to serve on the ground in Vietnam, so before I graduated, I began checking out the various military services’ officer commissioning programs and flight schools. I settled on the U.S. Air Force officer commissioning program (Offi- cer Training School or OTS) and went to OTS in San Antonio, Texas, in August 1971. I graduated from OTS in November 1971 as a second lieutenant and went to Undergraduate Pilot Training (UPT) beginning in March 1972. I graduated from UPT, earning my pilot’s wings, in January 1973 and began serving my six-year military commitment as a fighter pilot. I still wanted to attend law school, but the Air Force had no program for serving as both a pilot and lawyer, so I transferred my mili-

2334 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 tary commitment from the U.S. Air Force to the Air National Guard What tips would you give (a reserve component of the U.S. Air Force) in August 1977 and someone wanting to develop enrolled in the University of Tulsa College of Law in the fall of 1977. their leadership skills? I continued to fly with the 138th Fighter Wing, Tulsa ANG part time while I attended law school as a full-time student. I graduated from I would first ask the person if they law school in May 1980, passed the bar and went to work for the really wanted to be a leader and why. Logan and Lowery Law Firm in If someone could not easily answer Vinita while continuing to serve those questions, then they would in a part-time status with the probably struggle in developing their Air National Guard as a pilot. leadership skills and styles. There are I made partner with Logan I had been many academic courses and books on and Lowery in 1983 but moved accepted to SMU law leadership, and while those are helpful, to Stillwater to open a solo the best sources for leadership tips are practice in 1985. I practiced in school upon graduation, biographies of leaders or articles on Stillwater until January 1998, leadership written by those leaders. when Gov. Frank Keating but the law was changed appointed me to fill the associ- shortly before I graduated Secondly, I would suggest that the per- ate district judge vacancy in son identify their own personal charac- Vinita, Craig County. I contin- from undergraduate teristics that could help or contribute to ued to serve the ANG as a part- school to eliminate the developing their own leadership styles. time fighter pilot during this A leader cannot simply mimic the traits time. I was elected as the associ- law school deferment from or characteristics of other leaders. They ate district judge of Craig the draft. must be comfortable in their own style County in the elections of 1998 of leadership. Be yourself, not some- and 2002 while also serving as one else. the commander of the 138 Fighter Wing, Tulsa ANG as a part-timer. What advantage does your legal Before I could begin serving my second full-term as a judge, Gov. background give you in your current Keating asked me to serve as the interim and acting adjutant general leadership style? during the last few months of his second term. Gov. Brad Henry then I will try to answer this question as it asked me to continue serving as the adjutant general as he began the related to my nonlegal leadership roles first of his two terms as governor in January 2003. I accepted and resigned my judicial position in January 2003. The adjutant general as a former Air National Guard Fighter commands the Oklahoma Air National Guard and the Oklahoma Wing commander, former adjunct Army National Guard when they are not mobilized for service under general for the state of Oklahoma the president of the United States. and as a former director of the Air National Guard. In late 2008, Gov. Henry nominated me to be the director of the National Guard and President George W. Bush accepted Gov. Hen- My legal background consists of law ry’s nomination. President Bush nominated me for the position and school, 18 years as a private prac- titioner of law and five-plus years as a state court trial judge. This background has taught me that hard work, preparation, listening, caring for my clients, respect of individuals and patience are pre- requisites for the successful practice of law. Combine those traits with an intense desire to win and a hatred to lose, and I think you have the ingredients for a successful law practice. Coincidentally, these same traits also make for good leaders in most other occu- pations, including the military. While in military service, Lt. Gen. Bud Wyatt (left) is greeted by Col. John Kent The process of legal thinking and upon his arrival in a C-12 (right) to a F-15 base.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2335 for promotion to 3-star lieutenant general and the U.S. Congress what happens when preparation meets confirmed my nomination effective Feb. 1, 2009. The term of service opportunity. And, most importantly, by was for four years in Washington, D.C. at the Pentagon, and I offi- my faith in a loving, compassionate cially retired from the Air Force on Jan. 31, 2013, after 43 years of and trusting God. military service, 10 years as an active duty member of the Air Force and 33 years as a part-time Air National Guardsman. In early 2014, Why would you encourage Judge Gary Maxey announced his retirement at the end of his term other lawyers to get involved in from the position as associate district judge of Craig County. I filed leadership? for the position that I had held from January 1998 through January 2003 and was elected without opposition. I began serving again as Becoming involved in leadership is a the associate district judge on Jan. 12, 2015. person’s recognition that life does not remain status quo — that life and My decision to give up the traditional practice of law for a mili- things can be better, but only if there is tary career, nonlegal in nature, was due to many different factors. First, I never felt that I was “giving up” a career in law. I felt that it change for the better; that change will was more of a leave of absence, verified by the fact that after my happen in the absence of leadership; military retirement, I have resumed my traditional practice of law that change for the better will only as a state trial court judge. Second, after Sept. 11, 2001, I felt a sense happen with good leadership; and that of patriotism and military service, as did many other Americans in commitment to leadership is a way to all walks of life. Third, two governors had asked for my military “pay it forward,” if you will. If you real- service, and it is hard to say “no” to two governors. And fourth, ly think about what lawyers do, they I knew that my legal skills would serve me well in my military are leaders. They lead their clients leadership endeavors. through challenging and traumatic situations to a place of peace, serenity and resolution. They lead juries to a analysis gave me a certain people to do their job, gives desired verdict. They can even lead advantage in the military world people the tools and responsi- doubting judges (I am one now) to that many of my peers were bilities to do their job and holds correct legal decisions. They can lead missing. Most decisions at the them accountable, 11) creates organizations to accomplish their stat- top levels of the Air Force are an atmosphere of collaboration ed goals and objectives. made by pilots or “operators” and consensus building, 12) who have very little, if any, legal influences people to want to do What was your first leadership role or training. A good military leader their job at the highest levels of how did you first become involved in advocated for his or her people success, 13) sets a strategic leadership? and what better skills to be an vision, goals and objectives and I was blessed with some pretty good advocate than those of a lawyer? is comfortable in letting people athletic skills, and young athletes tend figure out how to reach those What are the traits of an to gravitate toward the better athletes visions, goals and objectives, effective leader? for leadership. So, I found myself 14) has a sense of humor and thrust into leadership roles without I think an effective leader 1) has is not afraid to display it, 15) thinking too much about it. Later, I a passion for his/her work and does not take himself/herself began making decisions to vie for profession, 2) recognizes that too seriously, 16) communi- leadership positions academically and leadership is a privilege, 3) cates, 17) mentors and devel- in student government and church. It cares more about the people he ops future leaders better than was often difficult, and I know I made or she leads than themselves, himself and finally, 18) has fun several mistakes along the way, but I 4) knows that the trust and in doing all of the above. felt that I had something to offer. I respect of the people they lead To what would you attribute your think it made me a better person, able is a fleeting thing and must be success as a leader? to think less about what I wanted and earned every day, 5) is fair, 6) more about what was best for the gives everyone the respect and By faithfully practicing the traits team or the organization. As I matured, dignity that each human being set forth above. By being open the stakes got higher and the organiza- deserves, 7) listens to different and honest with those we serve. tions got larger and more complex and points of view, 8) creates a By being supported by a loving leadership became more demanding. diverse organization that and faithful family and spouse But through it all, I felt very privileged reflects differing points of view, (it is a team effort, you know). to lead. 9) leads by example, 10) trusts By believing that success is

2336 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2337 SECTION NOTE

Financial Institutions and Commercial Law Section Oklahoma Enacts 2010 Amendments to UCC Article 9 By Alvin C. Harrell and Fred H. Miller

INTRODUCTION ENACTMENT OF THE 2010 AMENDMENTS IN OKLAHOMA In 2010, the uniform text of Uniform Com- mercial Code (UCC) Article 9 (governing In May 2015, Oklahoma became the last security interests in personal property and state to enact the 2010 amendments,5 doing so fixtures) was revised by the sponsoring orga- outside the uniform enactment period, mean- nizations.1 Consistent with longstanding prac- ing that there is a gap between the uniform tice,2 the 2010 amendments to the uniform text effective date of July 1, 2013, applicable in (2010 amendments) were then most other jurisdictions, and offered to the states for enact- the Nov. 1, 2015, effective date ment into law. The 2010 of the 2010 amendments in amendments essentially repre- Oklahoma.6 For issues and sent a fine-tuning of Article 9 …many observers transactions arising in this gap as to a handful of problem expected that period, there is some risk that areas that warranted further Oklahoma law may be differ- clarification after the compre- Oklahoma would ent (or at least less clear) than hensive revisions to the uni- quickly enact the the law of other jurisdictions.7 form text in 1998 (with techni- OKLAHOMA COMMENTS cal amendments in 1999).3 2010 amendments Recognizing the need to BACKGROUND as well. But that address this situation, in 2014 The 1998-1999 revisions to the UCC Committee of the Article 9 rank as probably the was not to be. OBA Financial Institutions most successful uniform law and Commercial Law Section revision project in history, in reconvened its Legislative terms of scope and effect and Review Subcommittee to draft also in terms of prompt enactment (being new (2014) Oklahoma Comments for Oklaho- enacted in all U.S. jurisdictions within the ma’s UCC Article 9, as published in the Okla- three-year uniform enactment period).4 As homa Statutes Annotated.8 The result was 2014 had been the case with other recent UCC revi- Oklahoma Comments for UCC Article 9, pub- sions, Oklahoma was among the first states to lished in the latest hardback edition of the enact the 1998-1999 revisions. Given that the Oklahoma Statutes Annotated for Title 12A, 2010 amendments represent relatively modest along with the then-current text of Oklahoma and uncontroversial changes to the 1998–1999 Article 9 (which did not include the 2010 uniform text, in nearly all instances merely amendments). Also included in the hardback clarifying existing UCC (and Oklahoma) law, edition are: the pre-2010 Official Comments many observers expected that Oklahoma and the earlier Oklahoma Comments address- would quickly enact the 2010 amendments as ing the impact in Oklahoma of the 1998-1999 well. But that was not to be. revision to Article 9.

2338 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Thus, the hardback edition of Title 12A in- 9-408); and disposition sales of collateral (sec- cludes three sets of UCC Comments: the pre-2010 tions 9-611 and 9-613). While these clarifica- Official Comments; the 1998-1999 Oklahoma tions may not require changes in parties’ Comments; and 2014 Oklahoma Comments practices or procedures (an issue that must be addressing the impact of Oklahoma’s failure at considered on a case-by-case basis in the con- that time to enact the 2010 amendments. The text of a specific scenario), as they largely 2014 Oklahoma Comments continue to have restate existing law, nonetheless interested relevance to transactions subject to Oklahoma parties may need to be aware of any potential Article 9 before the Nov. 1, 2015, effective date of impact in a given transaction. Oklahoma’s enactment of the 2010 amendments. CONCLUSION However, Oklahoma’s June 2015 enactment of the 2010 amendments then required a further It is surprising that such uncontroversial updating of the 2014 Oklahoma clarifications of the law, as Comments, to address the effects embodied in the 2010 amend- of the 2015 enactment. Thus, the ments, would spark resis- Legislative Review Subcommit- tance as they did in the Okla- tee reconvened to draft 2015 …Oklahoma’s homa Legislature so as to Oklahoma Comments for publi- delay the enactment for five cation in a new pocket part sup- June 2015 enactment years (thereby creating po- plement to Title 12A (along with of the 2010 tential and unwarranted the new statutory text and Offi- transition and choice of law cial Comments reflecting the 2010 amendments then problems for Oklahoma amendments). required a further transactions). Hopefully, the THE 2010 AMENDMENTS 2015 Oklahoma Comments updating of the will help to minimize these While the 2010 amendments problems, and over time the are mostly clarifications of prior 2014 Oklahoma resulting potential complexi- law (including some, as noted Comments… ties can be minimized. The in the 2014 and 2015 Oklahoma narrow scope of the changes Comments, that appear only in and the broad consistency Official Comments to the uni- with prior law also should help. Most impor- form text), there are a few places where clari- tantly, however, going forward this important fication required revisions to the statutory text Oklahoma law is once again consistent with the in ways that change prior law.9 The two most law in all other states. important of these are at section 9-503 (affecting the name of an individual debtor as 1. See NCCUSL, http://www.uniformlaws.org/. The sponsoring organizations are: The Uniform Law Commission (ULA), also known shown on a form UCC-1 (Article 9 financing as the National Conference of Commissioners on Uniform State Laws statement)), and section 9-316 (affecting the (NCCUSL); and the American Law Institute (ALI); with the active participation of the American Bar Association (ABA) and many other grace period for automatic perfection of a parties and organizations. security interest when the place to file changes 2. The NCCUSL was organized by the states in 1892, and offered by reason of a change in the location of the the Uniform Sales Act (precursor to UCC Article 2) for enactment by 10 the states in 1906. debtor or the collateral). This is not the place 3. See discussion below. On the 1998–1999 revisions, e.g., Oklaho- for a full explanation of the impact of these ma Comments for the 1998–1999 revisions, in Tit. 12A Okla. Stat. 11 Annot. §§1-9-101 et seq. changes, but interested parties should be 4. See UCC Article 9, Secured Transactions (1998) Summary, avail- aware of the need to consider the issues. There able at http://www.uniformlaws.org/ActSummary.aspx?title=UCC% are also some changes to the requirements for 20Article%209,%20Secured%20Transactions%20(1998). Oklahoma has a claim to significant credit for this success. The Co-Reporter for the safe-harbor model forms, at sections 9-516 the 1998-1999 revision was former Oklahoma lawyer and OCU. and 9-521, which may warrant some updating Adjunct Professor Charles W. Mooney Jr., and University of Oklaho- ma Law Professor Fred H. Miller was the Executive Director of efforts. NCCUSL throughout the revision and enactment process. 5. Oklahoma Enrolled House Bill No. 1773 passed the legislature in Additionally, clarifications are made in the May 2015 and was signed by Governor Mary Fallin on June 4, 2015 (to 2010 amendments (and/or the Official Com- be codified in scattered sections of Tit. 12A Okla. Stat. §§1-9-101 et seq.). 6. As noted below, the 2014 and 2015 Oklahoma Comments are ments) which relate to such things as: elec- designed in part to address this problem. See, e.g., Fred H. Miller, tronic authentication (section 9-102(a)(7)); cer- Oklahoma Comments and the 2010 Amendments to UCC Article 9, 68 Consumer Fin. L. Q. Rep. 360 (2014). tificates of title (sections 9-102(a)(10) and 7. Id. See also Brooke M. Donnelly, The Not-So-Uniform Uniform 9-311);12 “control” (sections 9-104 and 9-105); Law – Oklahoma’s Unamended Article 9, 68 Consumer Fin. L.Q. Rep. 374 anti-assignment clauses (sections 9-406 and (2014). 8. Tit. 12A Okla. Stat. Annot. §§9-101 to End.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2339 9. For additional overviews of the 2010 amendments, see, e.g.: Alvin C. Harrell, The 2010 Amendments to the Uniform Text of Article 9, 65 Consumer Fin. L. Q. Rep. 138 (2011); Thomas J. Buiteweg, Revised UCC Article 9 Provisions Affecting Vehicle Finance, id. at 147. 10. See generally sources sited supra at notes 6, 7 & 9. 11. That is a role for the 2015 Oklahoma Comments, which cover these issues. See also other sources cited supra at notes 6–9. 12. See also: sources sited supra at note 9; and for discussion of related issues, see, e.g., Julie R. Caggiano & Alvin C. Harrell, Common Certificate of Title Litigation and UCC Article 9 Issues, and the Impact of CT Laws, 65 Consumer Fin. L.Q. Rep. 446 (2011).

About The AuthorS

Alvin C. Harrell is a professor of law at the OCU School of Law and president of Home Savings and Loan Association of Okla- homa City. He is co-author of a dozen books, including The Law of Modern Payment Systems and Notes (with Professor Fred H. Miller). He is editor of the Con- sumer Finance Law Quarterly Re- port. He chaired the ABA UCC Committee task forces on State Certificate of Title Laws and Oil and Gas Finance.

Fred H. Miller is professor emeritus at the OU College of Law, where he joined the faculty in 1966. He graduated in 1959 from the University of Michigan and received his J.D. from the same university in 1962. He has served as commissioner from Oklahoma to National Confer- ence of Commissioners on Uni- form State Laws since 1975, and is also former executive director, chair of the Executive Committee and past president of the conference. He has served in leadership roles in several law-related organizations, authored more than 100 legal articles and has spoken at numerous CLE programs.

2340 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 LGBT EQUALITY AND THE LAW Where we are, where we’re going, and what it can mean for your clients

Program Presenter: Brady Henderson, Legal Director, ACLU

DECEMBER 2, 2015 Noon - 1 p.m. CST Your choice - any place with a computer!

The LGBT equality movement is swiftly changing family CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 1 law, and not just in legalizing same-sex marriage. Par- hour of mandatory CLE Credit, including 0 hours of ethics. Questions? Call (405) 416-7029. entage, adoption, child support, and inheritance are all undergoing rapid changes to accommodate a newer TUITION: $50. No discounts. Register online at: www.ok- and broader definition of the American family. This pre- bar.org/members/cle sentation will focus primarily on family law, but touch on CANCELLATION POLICY: Cancellations, discounts, refunds, or elements of other evolving areas of law commonly dealt transfers are not available. with in Oklahoma district courts. We also will discuss broader LGBT legal issues likely to impact Oklahoma law in the next one to five years, such as coming con- flicts in employment law, free speech, religious freedom, and even commerce.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2341 SCHOLARLY ARTICLE

Oklahoma’s Family Wealth Preservation Trust Act: Now More Than Ever By Philip R. Feist sset protection, as a matter of public policy, is endorsed throughout our country. At a practical level, everyone Awho locks their house believes in asset protection. To one degree or another, state statutes are in force to protect corporate shareholders, homeowners, retirement plans, the tools of one’s trade, vehicles and life insurance. In addition, 15 states also have domestic asset protection trust (DAPT) statutes that attempt to protect trust assets from the claims of the settlor’s creditors. Okla- homa is one of those 15 states, with three unique features that distinguish our Oklahoma Family Wealth Preservation Trust Act from all of the others: 1) a preservation trust can be revocable; 2) a preservation trust is an exemption trust not a spendthrift trust or a discretionary distribution trust; and 3) a preservation trust grant- or cannot be a beneficiary of her own trust.

The act made its appearance in 2004, and a “Domestic Asset Protection Trust State Rank- from its inception, its unique features were ings Chart,” and each year, Oklahoma has com- overshadowed by a limitation and an ambigu- peted for last place against all other DAPT ity. The limitation was that only $1 million jurisdictions. In his current chart, where our could be contributed to a preservation trust — state places last among all 15 DAPT jurisdic- which, in itself, invited litigation concerning tions, he notes that trust assets “must be majority asset valuation. The ambiguity lay in the oral Oklahoma assets.” Secondly, in his “Domestic legislative history behind the act, which held Asset Protection Trusts — Key Factors Exam- that, to satisfy the act’s requirement that at ined,” published as Steve Leimberg’s Asset Protec- least half of preservation trust assets must be tion Email Newsletter #150 on April 26, 2010, Mr. “Oklahoma assets,” the inventory of assets Oshins’ standout comment about Oklahoma held by entities organized under Oklahoma was that its “DAPT statutes are the only DAPT law had to be evaluated for “Oklahoma asset” statutes that allow a revocable trust, but the analysis purposes, even though the statute by protection is limited to $1,000,000.” its terms provided that “equity . . . issued by an But Senate Bill No. 1904, signed into law by Oklahoma-based company” was, itself, an Gov. Fallin on April 21, 2014, promises to be “Oklahoma asset.” a game-changer. That bill addressed both of Steven Oshins, a nationally recognized asset Mr. Oshins’ noted concerns about the act: 1) by protection planning lawyer, recognized both of removing the contribution cap and 2) by cla- these deficits in the act. Each year he publishes rifying that equity of an Oklahoma-based

2342 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 company is, “without reference to assets owned properly drafted and administered preserva- by the Oklahoma-based company,” an Okla- tion trust would be protected under the express homa asset. language of the act. With these two factors set right, the act has Finally, the revocation power — which, captured the attention of the national asset pro- under the act, cannot be exercised under judi- tection bar. cial compulsion — does raise this question: could the foreign court in the non-Oklahoma FOUR OF THE STRENGTHS OF THE ACT grantor’s state of residence, where the judg- The Oklahoma-Asset Requirement Has ment in favor of the grantor’s creditor was ren- Protection Benefits dered, hold the grantor in contempt for not exercising the revocation power, as has been Michael Passananti, in his very helpful arti- done by the federal courts with regard to grant- cle, “Domestic Asset Protection Trusts: The ors of foreign (non-U.S.) asset protection trusts?5 Risks and Roadblocks Which May Hinder Or, since under the express terms of the Okla- Their Effectiveness,”1 discusses the full faith homa act the revocation power is essentially and Credit issues relating to enforcing a judg- suspended, so that the power is effectively un- ment against a debtor grantor of a DAPT in a available to the grantor in such a situation, and non-DAPT jurisdiction. He concludes that if a the preservation trustee is not authorized to foreign court obtains in rem jurisdiction over honor an exercise of the power under judicial DAPT assets or in personam jurisdiction over a compulsion, would the full faith and credit DAPT trustee, then the public policy of that clause rescue the non-Oklahoma grantor from nonDAPT jurisdiction could apply to allow the contempt liability in her state of residence, by court to disregard the DAPT, and reach DAPT requiring that the foreign court recognize this assets located in that jurisdiction to satisfy effect of the Oklahoma act? Or, since by law the creditor claims against the debtor grantor. In its revocation power cannot be exercised by the May 2013 decision in the Huber case, the U.S. non-Oklahoma grantor, and if the indenture Bankruptcy Court for the Western District of governing the preservation trust contained Washington reached the same conclusion and prohibitions on the trustee recognition of a disregarded a Washington resident debtor’s grantor’s exercise of the revocation power un- Alaska trust to make trust assets located in that der compulsion, could the grantor plead legal state part of the bankruptcy estate.2 impossibility as a defense to contempt? Anoth- The recent revision to the act clarifying that, er commentator suggests that the enforceabili- for preservation trust purposes, non-Oklaho- ty of the foreign court’s judgment should be ma assets can be transformed into “Oklahoma analyzed on the basis of conflict of laws prin- assets” by being held in an Oklahoma entity, is ciples.6 In any event, this issue should inform material to both the in rem and the in personam prudent drafting of the preservation trust issues relating to the jurisdiction of a non- indenture and careful administration of the Oklahoma court. If the preservation trust trust- trust itself. ee is otherwise careful to avoid jurisdictional The Requirement for a Corporate Trustee Has minimal contacts3 with a non-Oklahoma grant- Protection Benefits or’s state, an Oklahoma entity (which is owned, in part,4 by the grantor’s preservation trust) The act requires that at least one of the trust- which is domesticated in the grantor’s state of ees of a preservation trust be an “Oklahoma- residence to hold assets in that jurisdiction based bank that maintains a trust department could protect preservation trust assets held or an Oklahoma-based trust company.”7 The inside the entity. In such a case, the preserva- involvement of a professional trustee gives a tion trust assets would be protected due to the high level of assurance that proper due dili- statutory protections given to entities under gence will go into vetting the grantor and his the law of that foreign jurisdiction, not because situation, as well as the assets contributed to a of the Oklahoma Preservation Trust Act. Fail- preservation trust, for purposes relating to the ing to pierce the veil of the preservation trust’s Uniform Fraudulent Transfer Act, which is entity interest in the non-Oklahoma grantor’s incorporated into the act by explicit reference.8 In jurisdiction, the creditor would have to domes- addition, a preservation trust that comes under ticate his judgment in Oklahoma, and attempt judicial scrutiny should enjoy a presumption of to reach preservation trust assets through the proper administration, which may not be the Oklahoma courts; but in Oklahoma, assets of a case with a discretionary distribution asset pro-

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2343 tection trust where an individual trustee may be trustee as an asset of the debtor’s estate, by required to establish that presumption by pro- operation of law and not by judicial action, and ducing records properly maintained in the regu- would be exercisable by the bankruptcy trust- lar course of trust administration. ee; and while the exemption protections of the act should be available to Oklahoma residents, The Act Protects Creditors’ Rights they would not be available to a non-Oklaho- The fact that the Uniform Fraudulent Trans- ma debtor because, in bankruptcy, only the fer Act is a continuing grid through which exemptions of the debtor’s own state or of the grantors and contributed assets are evaluated bankruptcy code are available to a debtor. guarantees that the preservation trust will not A CAUTIONARY COMMENT be used to abrogate or deny the legitimate rights of creditors. The act further provides A grantor’s indiscriminate and whimsical that the existing rights of secured creditors in exercise of the revocation power will almost assets contributed to a preservation trust are certainly open up a preservation trust to a also fully protected.9 “pierce-the-veil” attack by a creditor, on the Revocability Has its Benefits premise that the grantor’s self-benefit treatment of her preservation trust Of all the DAPT statutes, belies any family-benefit pur- only in Oklahoma can an pose for which the trust was asset protection trust be set- settled. To deflect such an at- tled as a revocable trust. A A grantor’s tack, a grantor, in her preserva- revocable preservation trust tion trust indenture, would be does not violate any common indiscriminate and well advised to consider plac- law principle of trusts, inas- whimsical exercise of ing restrictions on her exercise much as a grantor cannot be of the revocation power; for a beneficiary of her own pres- the revocation power instance, time-and-extent re- ervation trust; so the protec- will almost certainly strictions (e.g. the power can tions of the act do not come only be exercised during the to the grantor as a beneficia- open up a preservation last week of a calendar quarter, 10 ry, or otherwise. A revoca- and only to the extent of ___ tion power is not an interest trust to a ‘pierce-the- percent of the value of trust in trust property but, rather, veil’ attack by a assets), and/or purpose restric- it is a power over property, tions (e.g. for medical emergen- and repossession of trust creditor… cies of the grantor, and for the property by the grantor upon health, education, maintenance exercise of the revocation and support of those for whose power also does not constitute a beneficial support the grantor is legally responsible). In interest in trust property. fact, if the exercise of the revocation power is A preservation trust being revocable, and not strictly limited to purpose-related restrictions, having the grantor as a beneficiary, and having and no time-and-extent exercise of the power is the benefit of professional vetting by a corpo- permitted, then these may serve to impede rate trustee, raises a robust argument that the exercise of the power by a non-Oklahoma 10-year claw-back provision of 11 U.S.C. §548(e) bankruptcy trustee as well. Also, providing in (1) should not apply to a preservation trust.11 In the preservation trust indenture that the revo- addition, the clear exemption language of Sec. cation power is not transferrable could further 12 of the act12 parallels the exemption language protect the power from creditor assault outside that applies to an individual retirement account Oklahoma. Lastly, the presence of a corporate (also a self-settled trust arrangement) under trustee, with a duty to enforce those restric- Oklahoma law.13 Note, however, that the case tions and limitations, lends strength to the of a revocable preservation trust settled by a protective fabric of the preservation trust. non-Oklahoma grantor in the U.S. bankruptcy FINAL COMMENTS venue presents a vulnerability that will require astute planning. As was pointed out at the Oklahoma’s Family Wealth Preservation March 13, 2015, OBA CLE seminar on the act,14 Trust Act has interjected two legal concepts — a preservation trust grantor’s revocation power revocability and exemption-based protection would come into the hands of the bankruptcy — into the national asset protection trust dis-

2344 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 cussion. Successful use of the act will take into obligations on its members, it is not an executory contract. Conse- quently when a member who is not the manager files a Chapter 7 case, account at least the following four consider- his trustee acquires all of the member’s rights and interests pursuant ations: 1) a Family Wealth Preservation Trust is to §§541(a) & (c)(1) of the Bankruptcy Code, and the limitations of §§365(c) and (e) do not apply), withdrawn as condition of court for…well, family. Only the grantor’s spouse, approval of settlement, 337 B.R. 228. descendants, ancestors, a tax-exempt charity 5. See Lawrence v. Goldberg, 279 F.3d 1294 (11th Cir. 2002); Federal Trade Commission v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999); U.S. and trusts for any of these, are “permitted ben- v. Bank of Nova Scotia, 740 F2d 817 (11th Cir. 1984). eficiaries” of a preservation trust. Exemptions, 6. See Shaftel and Bundy, “Domestic Asset Protection Trusts Cre- by their nature, concern particular assets that ated by Nonresident Grantors,” Estate Planning Journal (April 2005). 7. 31 O.S. §1, Sec. 5, subsec. b. The term “Oklahoma-based” are related to protection purposes sanctioned includes the requirement that the bank or trust company authorized to by public policy, as determined by a state’s do business in Oklahoma also has a “place of business” at a “phy-sical location” in the State. constitution and the actions of its legislature. 8. 31 O.S. §17, “Any transfer of monies or property by a grantor to This said, an Oklahoma preservation trust is a a preservation trust shall be subject to the provisions of the Uniform Fraudulent Transfer Act.” vehicle for preserving family wealth for family 9. 31 O.S. §12, “[t]ransfer of an asset to a preservation trust does not purposes, not for the direct benefit of grantors, affect any mortgage, security interest or lien to which that asset is subject.” and should not be available for other persons 10. By explicitly incorporating the Oklahoma Uniform Fraudulent or purposes. 2) the act puts in place procedural Transfer Act into the Preservation Trust Act (at its §17), a preservation elements that, together, combine to guarantee trust grantor cannot use family member beneficiaries as a conduit to indirectly access preservation trust assets. See 24 O.S. §116, B,1 (transfer as much as possible a positive protection result; to an “insider” prohibited) with §113,7a(1) (definition of an “insider” these include the requirements for a corporate includes a family member). 11. The definitive case to date on what constitutes a “similar trustee, an Oklahoma situs for at least half of device” for purposes of 11 U.S.C. §548(e)(1)(A) is In re Castellano, 514 trust assets and statutory standards (in Oklaho- B.R. 555 (Bankr.N.D.Ill. 2014), where, at 561, citing Black’s Law Dic- tionary, the court defines a “self-settled trust” to be “[a] trust in which ma’s Uniform Fraudulent Transfer Act) for vet- the settlor is also the person who is to receive the benefits from the trust, ting grantors and assets to prevent fraud on usually set up in an attempt to protect the trust assets from creditors.” creditors. 3) experienced estate planning law- Black’s Law Dictionary 1746, 10th ed. 2014.” (emph. Added). By contrast, preservation trusts are dissimilar devices inasmuch as grantors yers understand that the preservation trust is cannot be a beneficiary, and limitation on a grantor’s revocation power only one of several available asset protection under creditor duress is expressly statutory and not self-drafted. 12. “. . . the corpus and income of a preservation trust shall be instruments, and that an effective protection exempt from attachment or execution and every other species of forced plan is a symphony involving several of those sale and no judgment, decree, or execution can be a lien on the trust for the payment of debts of a grantor, except a child support judgment.” instruments, not a solo played by one of them. 4) 13. 31 O.S. §1, Sec. A., subsec. 20 (“. . . exempt from attachment or using a preservation trust only in situations execution and every other species of forced sale for the payment of debts . . . .”). where “bad facts” and “bad acts” (that is, where 14. Comments presented by Mark Sanders, shareholder at Gab- a client is trying to obstruct the claims of credi- leGotwals in Tulsa, Oklahoma, and adjunct professor of bankruptcy tors, as those terms are defined under the Uni- law at the University of Tulsa School of Law. Mr. Sanders was a law clerk for the Honorable Albert S. Dabrowski, Chief United States Bank- form Fraudulent Transfer Act) are not present ruptcy Judge for the District of Connecticut for over 15 years before will ensure that a preservation trust will be con- joining GableGotwals. sidered on its merits, not on the demerits of its settlor, if it ever comes under judicial scrutiny. About The Author 1. ACTEC Journal, Winter 2006, pages 260-271. 2. In re Donald G. Huber, 493 B.R. 798 (W.D. Wash. 2013). For an excellent discussion of the Huber case, see the analysis by Jonathan D. Philip Feist received his J.D. Blattmachr and Johnathan G. Blattmachr, Leimberg Asset Protection from the University of San Diego Planning Newsletter #225, May 11, 2013. 3. See Passananti citations: Hanson v. Denckla, 357 U.S. 235 (1958); School of Law, his B.A. from the McGee v. International Life Insurance Co., 355 U.S. 200 (1957); Interna- University of California and his tional Shoe Company v. Washington, 326 U.S. 310 (1945); NAPA Develop- ThM from Dallas Theological ment Corp. Inc. v. Pollution Control Financing Authority, 346 F.Supp.2d 730 (E.D. Pa. 2004); Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 Seminary. He is admitted to F.Supp. 1119 (W.D. Pa. 1997); Weintraub v. Walt Disney World Co., 825 practice in Oklahoma, Kansas, F.Supp. 717 (E.D. Pa. 1993); Rose v. Firstar Bank, 819 A.2d 1247 (2003). 4. The assets held by an LLC that is wholly owned by a preserva- Texas, Florida, California, and the tion trust may be vulnerable to creditor attack. See In re Albright, 291 U.S. Virgin Islands, certified as an estate planning, B.R. 538 (Bankr.D.Colo 2003) (since, in a single-member LLC, there are no non-debtor members to protect, and therefore no other parties’ trust and probate law specialist by the State Bar of interests would be affected by allowing creditors to reach the debtor California. He is a partner at Fellers Snider Blanken- LLC owner’s interest itself, the court held that charging order protec- ship Bailey & Tippens and provided technical assis- tion does not exist to protect the debtor’s LLC member interest from his creditors); In re Ehmann, 319 B.R. 200 (Bankr.D.Ariz 2005) (because tance for recent revisions to the OKFWPTA. the operating agreement of a limited liability company imposes no

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2345 SCHOLARLY ARTICLE

Due Process in Tax Sales By Ashley Warshell and Terrell Monks

very year on the second Monday in June, real properties subject to tax liens which have remained unpaid for at least Ethree years are sold at county tax sales.1 In preparation for these tax sales, the county treasurer’s office is required to research the parties interested in each property and attempt notice at all addresses that are likely to be correct. The procedural rules governing this process are outlined in Title 68, Article 31 of the Okla- homa statutes, and the effectiveness of the county treasurer’s resale deed issued to the tax sale buyer is dependent on whether these procedures have been followed. For example, the statute states that “[n]either failure to send notice to any mortgagee of record of said real estate nor failure to receive notice as provided for by this section shall invalidate the resale, but the resale tax deed shall be ineffective to extinguish any mortgage on said real estate of a mortgagee to whom no notice was sent.”2

In other words, if the county fails to send addition to all mortgagees of record, at least 30 notice to a mortgagee of record, the buyer at days prior to the tax sale.4 This notice must the tax sale takes title subject to that mortgage. include the property’s legal description and This requirement is consistent with the consti- state the time and place of the tax sale.5 In addi- tutional concept of due process, which requires tion, the statute mandates the exercise of “rea- the government to give notice prior to the tak- sonable diligence” in ascertaining the address ing of a property interest from a private citi- of a mortgagee of record.6 If, despite the exer- zen.3 Therefore, a party wishing to attack or cise of reasonable diligence, the treasurer can- defend the effectiveness of a tax resale deed not ascertain such an address, the treasurer is against the interest of a prior owner or an permitted to file an affidavit to that effect and encumbrancer of record may do so on both rely on notice by publication.7 Note, however, constitutional grounds and based on the proce- that the statutory language does not expressly dural requirements provided in the Oklahoma permit this type of substitute notice with statute. respect to the owner. STATUTORY PROCEDURES WHO IS A MORTGAGEE OF RECORD? The Oklahoma statute requires the treasurer As noted above, the statutory procedure to give notice of an impending tax sale by certi- requires that notice be given to “all mortgagees fied mail to the record owner of the property, in of record,” but how broadly should this lan-

2346 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 guage be interpreted? Are judgment lienhold- returned to the treasurer’s office, and the prop- ers entitled to the same protection as a mort- erty was thereafter sold at a tax sale.17 In con- gagee? Judgment liens are nonconsensual struing the Oklahoma statute, the court stated encumbrances on real property, which are that “no notice is sent unless there has been an governed by a separate set of statutes and sub- exercise of reasonable diligence,”18 and that ject to different treatment under the law.8 For “the absence of a return receipt was a red flag, example, judgment liens may be subject to lien alerting the county treasurer to exercise reason- avoidance or modification in bankruptcy,9 able diligence in locating Wells Fargo.”19 The whereas a mortgage may be removed or modi- court found that Wells Fargo did not receive fied only in more limited circumstances.10 Judg- actual notice, and that due process was violat- ment liens are not mentioned in the Oklahoma ed under circumstances where notice was pub- statute governing notice of tax sales, and prin- lished and mailed without proof of actual ciples of statutory construction suggest that the receipt.20 As a result, the tax deed issued to the express mention of mortgagees indicates an tax sale buyer was valid, but the buyer’s inter- intent to exclude all other categories of interest was acquired subject to the Wells Fargo ested lienholders. In other words, it is reason- mortgage,21 and the tax sale buyer was not able to conclude that if the legislature had entitled to reimbursement or an adjustment of intended to provide judgment lienholders the the tax sale purchase price.22 In addition, the same protection as mortgagees of record, it court allowed Wells Fargo to collect its attor- would have either mentioned them specifically ney’s fees from the tax sale buyer.23 or used a broader term. One conclusion to be drawn from the Zeigler DUE PROCESS opinion is that checking the loan documents In 1950 the United States Supreme Court and telephone directory for addresses does not decided Mullane v. Central Hanover Bank & Trust satisfy the standard of reasonable diligence Co.,11 addressing issues relating to notice of a where actual notice does not result. In Zeigler, judicial settlement of accounts to the beneficia- the Oklahoma Supreme Court declined to ries of a common trust fund. The only notice elaborate on what subsequent efforts might given to the beneficiaries in Mullane was by have been sufficient; nor did it address how the newspaper publication, which the court found analysis might change if reasonable diligence was not sufficiently reliable to meet due pro- would not have yielded a correct address. cess standards with respect to beneficiaries However, much of the more recent due process whose interests and whereabouts were ascer- case law seems to suggest that nothing short of tainable with the exercise of due diligence.12 In actual notice is sufficient.24 This raises the ques- its analysis, the court weighed the individual’s tion: What if the notice had been sent to a cor- 14th Amendment interest against the interest rect address and left unclaimed, and no amount of the state, stating that “[a]n elementary and of additional due diligence could have yielded fundamental requirement of due process… is any other address that would have been likely notice reasonably calculated, under all the cir- to reach the addressee? cumstances, to apprise the interested parties of The United States Court of Appeals for the the pendency of the action and afford them an 13 4th Circuit gave some weight to these consider- opportunity to present their objections.” ations in deciding Plemons v. Gale,25 where the However, the court limited its holding to ben- owner of property subject to a tax sale had eficiaries with known interests and addresses, moved to a new address which was not listed overruling constitutional objections as to ben- in the telephone directory. West Virginia’s eficiaries with unknown interests or where statutory scheme, similar to the applicable actual notice was not reasonably possible or Oklahoma statute,26 required the exercise “rea- practical.14 sonably diligent efforts” in providing notice.27 In 1989, the Oklahoma Supreme Court decid- Although the court maintained that something ed Wells Fargo Credit Corp. v. Zeigler,15 address- more must be done when the party knows that ing the due process issue in the context of a tax notice to a property owner has failed,28 it ac- sale. In Zeigler, the county treasurer mailed knowledged that reasonable efforts will not notice by certified mail to Wells Fargo, a mort- always result in actual notice, and that there gagee, at its address shown on the promissory are instances where reasonable follow-up note and in the telephone directory.16 Neither efforts might prove ineffectual.29 As a result, the the envelope nor a signed return receipt was district court’s decision was vacated, and the

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2347 case was remanded for a determination as to gagee had been accomplished, the court none- what efforts were made and whether a search theless found that the treasurer’s efforts went of public documents would have yielded a above and beyond the statutory requirements.38 proper address.30 Note, however, that this The key difference in Love appears to be that approach has not been specifically adopted in the mortgagee had undergone a merger and any precedent binding in Oklahoma. failed to provide notice that it had a new name and address. The court admonished the mort- The United States Supreme Court continued gagee for failing to update its information by developing the Mullane “reasonably calculat- recording additional documentation with the ed” standard in 2006, adding that even if county clerk or providing a forwarding address mailed notice was reasonably calculated at the to the post office, pointing out that the mort- time it was sent, subsequent efforts might be gagee had not presented any evidence that its required based on the particular circumstances 31 32 new name and address would have been dis- of the case. For example, in Jones v. Flowers, coverable upon the exercise of additional rea- where notice of a tax sale sent to the property sonable efforts.39 owner’s former address was returned unclaimed, the state More recently, the Oklahoma should have taken “addition- Supreme Court overturned a al reasonable steps,” such as decision of the Court of Civil resending the notice via regu- …the envelope was Appeals which affirmed sum- lar mail, posting notice on the mary judgment in favor of a front door, or addressing oth- returned to the treasurer county treasurer in comparable erwise undeliverable mail to marked ‘not deliverable circumstances.40 In Crownover, “occupant.”33 The court rea- the county treasurer mailed soned that since the state had as addressed/unable notice to the property owner notice that its first attempt to forward,’ with a by certified mail to his address was unsuccessful, it should of record, which was returned have taken additional steps handwritten note that marked “Not Deliverable as to address the possibility that Addressed Unable to For- the intended recipient was no ‘this business has been ward.”41 The property owner longer at that address, or had gone 4 years.’ no longer lived at the address, simply decided not to retrieve but provided the county with his certified mail.34 no notice of his address change other than by paying his taxes In December 2014, the one time with a check that stat- Oklahoma Court of Civil ed his correct address.42 The parties in Crownover Appeals issued its decision in Beneficial Finan- agreed that the statutory procedure had been 35 cial I Inc. v. Love, providing some guidance as followed, and the property owner’s appeal was to what additional steps may satisfy Oklaho- based solely on due process.43 In its analysis, the ma’s reasonable diligence standard. In Love, court discussed many of the cases mentioned the county treasurer’s office mailed notice to above, reiterating the additional reasonable the mortgagee of record, Beneficial Oklahoma steps suggested by the Flowers court.44 The court Inc., at the address indicated in the mortgage; found that it was inconsistent with state and the envelope was returned to the treasurer federal jurisprudence for the county to “simply marked “not deliverable as addressed/unable shrug and claim it complied with the notice to forward,” with a handwritten note that “this statute.”45 Perhaps this court was further per- 36 business has been gone 4 years.” The treasur- suaded by the fact that the tax sale purchaser er subsequently posted a notice on the door of was able to locate and contact the prior owner the subject property and sent a letter via fac- without issue when he wanted to inquire about simile to the mortgagee, stating “IF YOU purchasing a boat and trailer that had been left KNOW ANYTHING ABOUT BENEFICIAL on the property.46 OKLAHOMA INC. WHOSE ADDRESS WAS 981 W. WILL ROGERS BLVD. CLAREMORE, ADDITIONAL REASONABLE STEPS OK 74017, PLEASE CALL OUR OFFICE Although the specifics and adequacy of any ASAP!”37 Although the treasurer’s office never of the “additional reasonable steps” contem- received a response to the facsimile message or plated, but not explained, in Flowers and any other indication that notice to the mort- Crownover may be debatable, at least one prac-

2348 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 tical conclusion may be drawn from this dis- 5) Recognize that returned mail is a red flag cussion: The presence of a returned certified and establish follow-up procedures to mail envelope addressed to an interested party address this issue when needed. in a tax sale should be recognized as a red flag, 6) Post the notice in a conspicuous location both for the county treasurer and in particular on the property. for the prospective purchaser. Additional reasonable efforts should be made after such an FOR PROPERTY OWNERS/MORTGAGEES/ envelope has been returned, and county trea- OTHER INTERESTED PARTIES AND surers would be wise to at least resend such THEIR COUNSEL: notices by regular mail, which provides an 1) Determine whether the interested party inexpensive and simple method for addressing could have been located by asking the fol- the issues raised in the cases discussed above. lowing: The absence of any documentation regarding subsequent efforts may be an indication that a. Was a correct address listed with the the prospective purchaser’s interest is at risk. county assessor’s office? CONCLUSION b. Was a correct address available in the county’s land records? Addresses for The status of the law on these issues, whether grantees, mortgagees, and holders of described in terms of due process or reasonable other encumbrances of record may be diligence, is both well-developed and in need listed on recorded documents. of clarification. Although case law provides numerous examples of efforts that have fallen c. Was a correct address listed with the short, these cases are fact-specific, and largely court clerk’s office? Addresses may be indicate what a county treasurer should not do. available for defendants who have been More examples of efforts that meet the mini- sued or have received traffic or other mum requirements would be helpful in evalu- criminal citations. ating whether a tax sale property is worth d. Was a correct address listed in the tele- investing the necessary time and money. In phone directory? Oklahoma, the Love court at least acknowledged that something short of actual notice can satisfy e. Was the notice posted on the property the reasonable diligence standard, although subject to the tax sale? even this case is arguably limited to its facts. Given the number of cases holding that notice f. Did the interested party call the county was insufficient, the potential tax sale buyer and report a change of address? would be well-advised to make inquiry into g. Was a correct address available from any these issues prior to placing a bid at a tax sale, other publicly available sources, such as especially where encumbrances may exceed the a website? value of the property and attorney’s fees may be recoverable in foreclosure. 2) Ask to review the county treasurer’s file; look for documentation that reasonable FOR COUNTY TREASURERS AND THEIR diligence was exercised in the attempt to COUNSEL: locate the interested party. 1) Mail notices to interested parties by regu- 1. See Okla. Stat. tit. 68, §3105. lar mail in addition to certified mail. 2. Okla. Stat. tit. 68, §3127. 3. See U.S. Const. amend. XIV §1. 2) Check for addresses in the county records 4. Okla. Stat. tit. 68, §3127. 5. Id. of every county office, including the court 6. Id. clerk and assessor’s offices. 7. Id. 8. See Okla. Stat. tit. 12, §681 et. seq., 11 U.S.C. §522(f)(1) (2010). 3) Use an investigative research system such 9. See, e.g., 11 U.S.C. §522(f)(1) (2010) (Chapter 7 debtor may avoid the fixing of judicial lien to the extent that it impairs an exemption). as Thomson Reuters CLEAR system to 10. See, e.g., 11 U.S.C. §1322(b)(2) (2010) (Chapter 13 plan may search for up-to-date addresses for all modify the rights of secured parties, except with respect to a security interested parties. interest in real estate which is the debtor’s principal residence). 11. 339 U.S. 306 (1950). 12. Id. at 310, 315, 317. 4) Always print search results and maintain 13. Id. at 314. copies in the file. 14. Id. at 317, 318. 15. 1989 OK 113, 780 P.2d 703. 16. Id. at 704. 17. Id.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2349 18. Id. at 706. 19. Id. at 705. About The AuthorS 20. Id. 21. Id. at 704, 705. 22. Id. at 706. Ashley Warshell is an attorney 23. Id. at 704, citing Okla. Stat. tit. 42, §176. with Hall & Ludlam PLLC and 24. Stottlemyre v. Haworth, 1998 OK CIV APP 31, ¶6 (“To the extent that Wells Fargo requires that the owner of property subject to tax resale practices in the areas of civil liti- actually receive notice of the tax resale proceedings and inasmuch as the gation, probate, banking, real uncontroverted evidence in the present case shows no such actual receipt of notice of the tax resale proceedings by Appellee, we hold the trial court estate, consumer financial services committed no error in setting aside Appellants’ resale tax deed.”) (em- law and debtor/creditor law. She phasis added) 25. 396 F.3d 569 (4th Cir. 2005). also serves as vice president of 26. Okla. Stat. tit. 68, §3127. Home Savings and Loan Associa- 27. Id. at 572, citing: W. Va. Code Ann. §11A-3-22 (2002); W. Va. tion of Oklahoma City, as a director of the Oklahoma Code Ann. §11A-4-4(b) (2002). 28. Id. at 574-576, citing: Schwartz v. Dey, 665 S.W. 2d 993, 935 (Mo. County Bar Association’s Young Lawyers Division, and 1984); Malone v. Robinson, 614 A.2d 33, 38 (D.C. 1992); Bank of America is a member of the Financial Institutions Article 9 Leg- v. Giant Inland Empire R.V. Ctr. Inc., 78 Cal. App. 4th 1267, 93 Cal. Rptr. 2d 626, 635 (Cal. Ct. App. 2000); Tracy v. County of Chester, 489 A.2d islative Review Subcommittee and OBA Commercial 1334; Kennedy v. Mossafa, 100 N.Y.2d 1, 789 N.E. 2d 607 (N.Y. 2003). Law Section. She graduated from the OCU School of 29. Id. at 577. 30. Id. at 578. Law in 2011 and received her BBA in finance from OU 31. Jones v. Flowers, 547 U.S. 220, 229 (2006). in 2008. 32. Id. 33. Id. at 234, 235. 34. Id. at 235. Terrell Monks has served as an 35. 2014 OK CIV APP 103. 36. Id. at ¶ 8. assistant city attorney for the cit- 37. Id. at ¶ 10 n.6. ies of Bethany and Piedmont for 38. Id. at ¶ 11. 39. Id. more than 18 years. He also 40. Crownover v. Keel, 2015 OK 35, __ P.3d __. maintains an office in Midwest 41. Id. at ¶ 7. 42. Id. at ¶ 5. City where the practice is fo- 43. Id. at ¶ 17. cused on probate and estate plan- 44. Id. at ¶ 21. 45. Id. at ¶ 22. ning, and his office provides 46. Id. at footnote 1. codification service to Oklahoma municipalities.

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2350 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 SCHOLARLY ARTICLE

Electronic Commerce and Incorporation by Reference in Contract Law By Alvin C. Harrell

n Walker v. Builddirect.com Technologies, Inc.,1 the Oklahoma Supreme Court considered the standard that must be met to Iincorporate a separate (extrinsic) electronic record into a contract by reference. The issue arises when it is argued that separate records2 should be read together as parts of the contract by reason of a reference to the extrinsic record in the record executed by the contracting parties.3 The Walker court noted that Oklahoma authority on the issue is sparse, and treated the matter as an issue of first impression.4 It is an issue of increased importance in view of the expansion of electronic commerce, given that electronic contracts frequently involve the cross-referencing of extrinsic material via links between web pages.5

As noted elsewhere,6 the cases on this issue foundational concept that contract law is the often involve one or more of three subject areas embodiment of party autonomy. Thus, the that are lightning rods for modern controver- issue of incorporation by reference addressed sies: 1) arbitration clauses; 2) choice-of-forum in Walker goes to the heart of the standards (or choice-of-law) clauses; and 3) warranty required for the legal recognition of private disclaimers.7 Sometimes these are intertwined bargains, perhaps the single most important with the effects of a change-in-terms notice, underpinning for a modern, just and prosper- and in the electronic contracting context there ous society.11 may be additional issues relating to assent in a BACKGROUND OF THE WALKER CASE “clickwrap,” “modified clickwrap,” “browsewrap” or “shrinkwrap” transaction.8 The Walkers purchased flooring materials from Builddirect.com (BuildDirect) in a con- In all of these scenarios the substantive law tract sent to the Walkers by email.12 They print- issues are governed by traditional contract law ed it out and signed the printed contract, and principles,9 supplemented on narrow issues by returned it to BuildDirect by facsimile (fax) the Uniform Electronic Transactions Act transmission.13 The printed contract stated that: (UETA) and/or the Uniform Commercial Code “[a]ll orders are subject to BuildDirect’s ‘Terms (UCC).10 The guiding principle in the analysis of Sale’.”14 The Walkers received and installed (as recognized in Walker) is to ascertain the the flooring, and subsequently alleged that expressed intent of the parties, recognizing the their home became infested with “nonindige-

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2351 nous wood-boring insects” which damaged Williston indicates as the basic test that an their home, as a result of insect larvae con- incorporation by reference is effective when (in tained in the BuildDirect flooring.15 They filed a the words of the Oklahoma Supreme Court) class action suit against BuildDirect, alleging “the underlying contract makes clear reference fraud, breach of contract, negligence, trespass, to the separate document, the identity of the breach of implied warranties, deceptive trade separate document may be ascertained beyond practices, products liability and nuisance.16 doubt, and the parties to the agreement had knowledge of and assented to the incorpora- BuildDirect moved to compel arbitration, tion.”27 These standards remain unchanged in based on an arbitration clause in the “Terms the context of electronic contracts, and upon and Conditions” referenced in the printed con- incorporation the extrinsic material becomes tract signed by the Walkers.17 BuildDirect noted part of the parties’ contract.28 The narrow ques- that the terms and conditions were separately tion in Walker was whether the terms and con- available on the BuildDirect website, accessible ditions including the arbitration clause were by clicking on a hyperlink under that label, properly incorporated by reference, using this under the heading “Customer Service.”18 The standard. Walkers responded that they were not aware of BuildDirect argued that the terms and condi- these terms and that the terms were not properly tions containing the arbitration clause were incorporated by reference into the contract.19 expressly incorporated into the contract, plac- The district court denied BuildDirect’s mo- ing the Walkers on notice of the relevant provi- tion to compel arbitration, on grounds the con- sions.29 The Walkers argued that they did not tract was ambiguous and that the court could have notice of, and did not agree to, the terms not say as a matter of law that the terms and and conditions.30 As have other courts,31 the conditions were incorporated by reference.20 Oklahoma Supreme Court focused on whether BuildDirect appealed to the United States the Walkers were provided reasonable notice Court of Appeals for the 10th Circuit, which of the incorporated material, applying the stan- certified the question to the Oklahoma Supreme dard of a “reasonable prudent person.”32 Court (as a matter of state law).21 “Notice” includes “circumstances that would alert a reasonable, prudent person to investi- OKLAHOMA SUPREME COURT OPINION gate[,]” and “a party’s failure to read duly Arbitration agreements are subject to the incorporated terms will not excuse the obliga- 33 Federal Arbitration Act (FAA),22 but state con- tion to be bound.” As noted, this language in tract law governs contract formation and inter- the court’s opinion reemphasizes the basic pretation issues.23 In Walker, the Oklahoma tenets of contract law. “But,” the court went on Supreme Court began its opinion by reempha- to state, “incorporation will fail when this Court must employ a forced construction to sizing basic tenets of contract law, e.g., “the ‘construe an ambiguity … to import a more paramount objective of contract interpretation favorable consideration to either party than is to effectuate the intent of the parties as that expressed in the contract.’”34 expressed by the terms of the contract.”24 As noted, the question in Walker was whether the The language of incorporation in the Walk- Terms and Conditions that included the arbi- ers’ printed contract, making the contract “sub- tration clause were incorporated by reference ject to” the separately available “Terms and into the parties’ contract. Conditions,”35 may seem to meet the test for incorporation by reference, but that was not The Oklahoma Supreme Court read the exist- the court’s conclusion.36 Instead, the court con- ing, limited precedent on the issue as requiring cluded that the terms and conditions were not that the incorporated material be “clearly iden- incorporated by reference into the contract.37 tified in the text” of the contract, or subject to The primary basis for the court’s conclusion “words of express incorporation,” but con- was that “[m]erely placing quotation marks cluded that the specific legal standards needed around the phrase terms of sale, without more, to apply this general test on the facts of the was insufficient to convey to the Walkers … [a] Walker case were “lacking.”25 The court pro- reference to anything more than the multitude ceeded to analyze the issue in view of the guid- of sales terms already expressly enumerated” ance articulated by Professor Williston in his in the printed contract.38 Thus, “the phrase treatise, Williston on Contracts.26 ‘Terms of Sale’ fails to clearly and unambigu-

2352 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 ously state that the parties intended to incorpo- Several examples are presented in the Walker rate any additional terms ….”39 The court con- case. The first is the phrase “subject to.”48 If this cluded “[t]hat [this] oblique reference falls language is to have any meaning, it is to subor- short of this Court’s demanding standard[,] dinate the subject text to the extrinsic, refer- and … buttresses this Court’s conclusion that enced material; that is, it incorporates the the Walkers neither assented to nor had notice extrinsic material by reference. That is the way of the additional online terms.”40 it has been interpreted by courts and others in American law,49 and there should be no doubt The court’s opinion goes on to provide guid- that this language in the Walker contract meets ance as to how BuildDirect could have provided the first of the three tests articulated in the con- for the desired incorporation by reference, e.g., clusion to the court’s Walker opinion. Presum- by using “words of express incorporation or ably the court did not intend to fault the use of clearly referencing, identifying and directing the this terminology to achieve incorporation by Walkers to the document to be incorporated.”41 reference,50 and a careful reading of the Walker In contrast, the court concluded, the Walkers’ opinion indicates that this was not the problem printed contract gave “every appearance of identified by the court. being a complete agreement – capturing the Thus, it is important to note that the phrase price, payment method, delivery and sales “subject to” was not the focus of the Walker terms ….”42 The court concluded that “[n]o rea- analysis. Instead, the stated basis for the Walker sonable prudent person … would have notice 51 43 decision was the court’s second and third tests, to think otherwise.” focusing on identification of the extrinsic mate- The conclusion to the court’s opinion sets out rial and the parties’ understanding of its impor- three specific requirements to be met in order tance. The court stated that placing quotation to have an effective incorporation by reference: marks around the phrase “Terms of Sale,” “without more, was insufficient to convey … [a] refer- 1) the underlying contract makes clear reference to anything other than the multitude of ence to the extrinsic document[;] 2) the iden- sales terms already expressly enumerated with- tity and location of the extrinsic document in the four corners of the Contract.”52 The court may be ascertained beyond doubt[;] and 3) further explained its reasoning as follows: the parties to the agreement had knowledge of and assented to its incorporation.44 That oblique reference falls short of this Court’s demanding standard. And, it but- ANALYSIS OF WALKER tresses this Court’s conclusion that the Walk- Issues of contract interpretation (ascertaining ers neither assented to nor had notice of the the intent of the parties based on their expres- additional online terms. sion in the terms of the contract45) often involve * * * questions of fact, and indeed have some inher- Therefore, BuildDirect’s attempt at incor- ent subjectivity. For this reason it is essential poration was nothing more than a vague that courts apply consistent legal standards of allusion.53 interpretation, in order to sustain the rule of law in an otherwise largely (and potentially It appears, then, that the problem in Walker chaotic) subjective analysis. Thus, articulation was that the phrase “Terms of Sale” did not of these standards is an important function of sufficiently connote a reference to the extrinsic the law, essential to the maintenance of the contract terms, i.e., to terms outside the record contract law principles that are necessary to being directly executed by the parties. To sat- modern society and distinguish us from our isfy the court’s “demanding standard,” as artic- medieval ancestors.46 ulated in the second test stated in the court’s conclusion,54 the incorporation by reference The Walker court deserves credit for reiterat- (arguably using the phrase “subject to” would ing the time-honored principles at the founda- be sufficient) needs to identify the extrinsic tion of this legal structure.47 But, if these prin- material as such, in order to make clear that ciples are to have meaning, they must be given something outside the executed record is being effect in the context of widely-recognized mod- incorporated in the agreement. In other words, it ern practices. In essence, words of agreement must be clear that the agreement is subject to must have meaning, and those meanings must something more than the record being directly be generally recognized by courts. executed by the parties. Then, under the third

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2353 test, the proponent must show that “the parties in such cases, e.g., as to contract formation or to the agreement had knowledge of and assent- procedural unconscionability.63 ed to its incorporation.”55 Another introductory point worthy of note is For the most part these are reasonable stan- to recognize again64 that many of these cases dards, and have counterparts in electronic con- involve the possible application of an arbitra- tracting cases from other jurisdictions.56 The tion clause (or a forum selection clause with a Walker analysis does not require the use of any similar purpose, e.g., avoiding an unattractive specific, or “magic” language, merely words judicial forum). The Congress and United indicating that the reference is to something States Supreme Court have articulated a strong extrinsic. On the facts of Walker, it appears that public policy in favor of arbitration, as pro- a minimal addition of language indicating that vided in the FAA.65 But as others have noted,66 the terms of sale contained supplementary pro- some courts remain somewhat hostile to arbi- visions that could be separately accessed would tration, and a strict application of contract law have been sufficient. Clearly the safest way to requirements is one of the few ways to vent do this is by providing for a separate assent at that hostility within the confines of the FAA.67 the end of or adjacent to a link to the extrinsic Additionally, it can be noted that many of terms or to provide a reference to the cite con- these cases relate to the question of whether a taining the extrinsic terms,57 although arguably clickwrap or browsewrap assent has been suf- this goes beyond what is ficient to form a contract.68 required as a matter of contract While not the precise issue in law. The focal requirement, as Walker, these issues are relat- indicated in Walker, is some ed, even similar, to the ques- indication that the parties had Another introductory tion of assent to the Terms of notice that the extrinsic mate- Sale in Walker. The Walker rial was part of their contract.58 point worthy of note is to court held that the incorpora- Arguably the incorporation of recognize again that tion by reference of Build- the additional “Terms of Sale” Direct’s terms of sale was in the Walker transaction came many of these cases not sufficient as assent to very close to meeting this stan- extrinsic terms including an dard.59 Thus, a selective review involve the possible arbitration clause.69 While of other electronic contracting application of an not precisely the issue in the cases with similarities to Walker clickwrap and browsewrap may be instructive in determin- arbitration clause… cases noted below, the basic ing more precisely what con- issue in Walker is similar, i.e.: tract law requires in this context. What is required as evidence OTHER CASES of assent to contract terms? Introduction Finally, as others have also noted,70 there is an increasing division between business-to- The cases noted here are not precisely on business (B2B) transactions and business-to- point for the Walker case, but the issues are consumer (B2C) cases. While there have always similar enough to be related and relevant. In been reasons to distinguish between cases this regard, a few initial observations are based on the sophistication levels of the par- appropriate. ties,71 the increased emphasis on this factor First, these cases (like Walker) involve con- (now enhanced by the expanded federal tracts for sales of goods, and therefore are sub- authority being exercised by the Bureau of ject to UCC Article 2,60 even if the contracts are Consumer Financial Protection72) also inevita- formed (at least in part) electronically and are bly means that freedom of contract is dimin- also subject to the UETA.61 The Walker court did ished for consumer transactions,73 and the not discuss either the UCC or the UETA, pre- transaction costs are increased due to the sumably because the issues in the case were greater legal risks. governed by the general contract law princi- Selected B2B Cases ples that provide the foundation for both uniform laws.62 But this should not obscure the With these caveats in mind, consider some potential role for application of a uniform law illustrative cases on assent to contract terms. In Appliance Zone, LLC v. TexTag, Inc.,74 the NexTag

2354 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 website provided for assent to the contract better comparison is the B2C cases, noted terms by clicking on a box adjacent to the fol- below. lowing language: “I accept the NexTag Terms B2C Cases of Service.”75 The court held that this was sufficient as notice and assent, turning aside argu- Hines v. Overstock.com, Inc.88 was a browse- ments that the arrangement was procedurally wrap case in a B2C transaction. Moringiello unconscionable and that the terms were incon- and Reynolds characterize the facts of this case spicuous.76 The court rejected the argument as “a good lesson on how not to present web- that the incorporated terms had to appear on site terms and conditions.”89 The website stated the same page as the “I agree” box, noting that that merely “entering this site will constitute the incorporation by reference was “typical for your acceptance of these Terms and Condi- the online retail industry.”77 The resemblance of tions.”90 The link to the terms was at the bottom these facts and legal issues to those in Walker, of the page in small print, between a link to the including even the contract language, is appar- seller’s privacy policy and its trademark, and ent, with the possibly relevant distinction that the ordering process did not require scrolling Appliance Zone was a B2B case.78 to that portion of the web page.91 The court Similarly, Margae79 was a B2B case involving held that this was not sufficient as actual or assent to a forum selection clause (in a contract constructive notice of the referenced terms. modification). The contract permitted a pro- This seems more consistent with Walker (as spective modification by a posting on the compared to the cases noted above), but it defendant’s website, essentially incorporating should be noted that the problem in Hines was future modifications by reference.80 In uphold- the inconspicuous location of the cross-refer- ing the referenced terms, the court emphasized ence (not noted as a problem in Walker), rather that both parties were sophisticated business than the adequacy of the language. There was entities.81 no indication in Hines that a hyperlink cross- reference to the relevant terms was problemati- In comparison to Walker, the browsewrap cal per se. cases create even greater difficulties for the party seeking to enforce the contract, given Another illustrative B2C case is Van Tassell v. that there is no adjacent manifestation of assent, United Marketing Group, LLC,92 again (as in only the ability to access the contested terms Walker) involving assent to an arbitration via a hyperlink.82 Yet a typical case is PDC Labo- clause. The defendants, seeking to enforce the ratories, Inc. v. Hach Co.,83 where the online arbitration clause in a browserwrap agree- “Terms and Conditions of Sale” (containing the ment, relied unsuccessfully on PDC Laborato- relevant warranty disclaimer) were hyper- ries and Hubbert.93 The “Terms and Conditions” linked. The buyer (the plaintiff suing for breach containing the arbitration clause were dis- of warranty) was not required to click a box to played on the defendants’ websites, but a accept the terms; instead, the last page of the hyperlink did not appear on either the home order form instructed the buyer to “Review page or the checkout pages. To find the terms terms, add any comments, and submit order[,]” and conditions, it was necessary to scroll to the followed by a hyperlink to the terms including bottom of the home page and click the “Cus- the disclaimer.84 The court held that the refer- tomer Service” link, then scroll to the bottom of enced terms were adequately communicated to the Customer Services page or click another the buyer, citing the UCC Article 2 definition of link near the end of that list, entitled “Condi- “conspicuous”85 and Hubbert v. Dell Corp.86 The tions of Use, Notices and Disclaimers.” The PDC Laboratories court stated a rule similar to Van Tassell court concluded that a user could that of the Oklahoma Supreme Court in Walker, complete his or her transaction without receiv- namely that the test is whether the referenced ing notice of the arbitration clause. Interest- terms are reasonably communicated to the ingly, the court seems to suggest that the B2B buyer,87 but reached a different result on similar cases cited by the defendants (PDC Laboratories facts. and Hubbert) would be persuasive authority in this B2C case, if the notice given in Van Tassell These B2B cases are not exhaustive but had been as conspicuous as the notice in those appear to be illustrative of the broader case B2B cases.94 law. Among these cases, Walker is an outlier. But, if the law is to be divided between com- In contrast to Hines and Van Tassell, in Swift v. mercial and consumer transactions, perhaps a Zynga Game Network, Inc.95 the court enforced

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2355 an arbitration clause that was included in merchant contracting with a consumer reach terms of service linked to but not visible on the out to more fully highlight all of the applicable transaction screen. The user was required to terms.102 In the view of the Walker court: “Such click an “accept” button directly above a notice a standard ensures that Oklahoma consumers stating that the assent constituted an agree- are protected from deceptive and unfair trade ment to the terms of service, along with a practices.”103 hyperlink to the terms. The court held that this provided sufficient notice of and an opportu- It is difficult to argue with this purpose, and probably few would dispute the need for full nity to review the terms of service.96 A similar case is Vernon v. Qwest Communications Interna- and effective disclosure of contract terms and tional, Inc.,97 where Qwest sent existing custom- evidence of assent. However, it should be ers a letter notifying them of new contract terms noted that the requirement for a heightened (a change in terms notice), including an arbitra- standard of technical compliance may not be tion clause, and new customers who signed up entirely beneficial to consumers. To the extent on the internet checked a box indicating agree- that contracting with consumers is made more ment to the relevant “Terms and Conditions,” difficult and legally hazardous by the addition with a reference to the location of the terms and of a technical judicial gloss to consumer protec- a request that the customer review them. The tion law (and then becomes more expensive court held that this was sufficient notice and due to increased legal risks), rather than fol- enforced the arbitration clause.98 lowing standard commercial practices, consumers may suffer reduced access or higher The B2C (and B2B) cases seem consistent costs in transactions that are common in the with Walker in stating the general contract law commercial world. This has been an emerging rule, that the test is whether the incorporation trend in American law in recent decades, and by reference is conspicuous and notice is rea- may be accelerating.104 sonably communicated to the other party. As noted by Moringiello and Reynolds: “[I]t is not It can be noted in this regard that some of the enough that the terms can be found some- recent efforts to protect consumers have cut-off where; the terms also must be presented in many consumers from access to home mort- such a way that they can be found by the rea- gage loans that formerly were widely avail- 105 sonable user.”99 Not surprisingly, this may able. Some may argue that this is the way it require greater clarity with respect to less should be, and your author does not debate the sophisticated consumer users. Although the point here. Nor is there any intent to suggest precise parameters of this qualification may be similar effects from Walker. But one need not somewhat murky in the context of a given sce- disapprove of the Walker analysis in order to nario, it seems clear that the safest approach is note that it fits a pattern of cases limiting the to provide a specific notice that additional enforcement of consumer contracts. In this terms are being incorporated, together with regard, it may tempting for lawyers and courts directions to the location of those terms and to focus on protecting an individual consumer adequate evidence of assent to the contract. from some of the traditional standards of con- Particular care is required in meeting these tract law, without fully contemplating the requirements in consumer transactions. cumulative effects (and costs) of such an approach.106 It is a point worthy of consider- CONCLUSION ation in studying the rationale of cases like In addition to the basic contract law princi- Walker. ples noted above, Walker illustrates a growing 1. 2015 OK 30, 2015 WL 2074964 (S.Ct. May 5, 2015). Supporting gap between commercial and consumer trans- citations in the court’s opinion are omitted from this article unless actions law. Walker is an outlier compared to otherwise noted. 2. The term “record” includes both written and electronic records. some of the commercial contracting cases; as See Uniform Electronic Transactions Act (UETA) §2(7) & (13), and cmts. between commercial entities it is quite possible 6 & 10; Okla. UETA, 12A Okla. Stat. §§15-102(7), (9) & 16. Walker 3. This is not to be confused with the composite document rule, a the incorporation by reference in would more discretionary rule that may apply even without an incorporation 100 have been effective. It is in the context of other by reference, allowing the court to consider the evidentiary value of case decisions that focus on the protection of separate records that have sufficient relation to each other as to have 101 probative value as regards the parties’ intent, e.g., for purposes of sat- consumers that Walker fits more comfortably. isfying the statute of frauds. See, e.g.: Mitchell v. Shepard Mall State Bank, In Walker, the contract law requirement for 458 F.2d 700 (10th Cir. 1972); John D. Calamari & Joseph M. Perillo, Contracts §312 (1970). assent on the basis of reasonable notice of the 4. Walker, 2015 OK 30, at ¶10. However, as noted below, similar contract terms was interpreted to require that a issues have been the subject of litigation elsewhere.

2356 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 5. For summaries of related cases and issues (some of which are Plender, Morality and the Money Motive,” Fin. Times, July 19, 2015, at addressed in this article), see, e.g.: Deborah Davis Boykin, “Survey of 7. “The liberation of hundreds of millions from desperate poverty E-Contracting Cases: Browsewrap, Clickwrap, and Modified Click- ranks among the greatest success stories in history[, though it] is a wrap Agreements,” 68 Bus. Law. 257 (2010); Juliet M. Moringiello & story that remains largely untold and mostly unheralded.” William William L. Reynolds, “Electronic Contracting Cases 2009 – 2010,” 66 McGurn, Opinion, The Weekend Interview with Arthur Brooks, “Play- Bus. Law. 175 (2010) [hereinafter Moringiello & Reynolds 2010]; Juliet ing the Music of Capitalism,” Wall Str. J., July 11 – 12, 2015, at A9. M. Moringiello & William L. Reynolds, “Electronic Contracting Cases 47. See supra this text at notes 9 – 11 & 23 - 26. 2008 – 2009,” 65 Bus. Law. 317 (2009) [hereinafter Moringiello & Reyn- 48. See the precise language of the contract at issue in Walker, supra olds 2009]. As noted below, in Walker the terms of the contract were this text at note 14. partly written and partly electronic. 49. A typical, and instructive, example is in UCC Article 3 §3-106, 6. See supra note 5 and discussion of other cases infra. cmt. 1, stating that language in a promissory note providing that “this 7. See supra note 5. Regarding arbitration (the issue in Walker, as note is subject to” extrinsic material will require examination of the noted below), see generally Christine A. Scheuneman, Joseph T. Lynyak, extrinsic material to determine the resulting legal rights (in effect III. & Amy L. Pierce, “The CFPB’s Arbitration Study – A Warning to incorporating the extrinsic material and therefore rendering the note Consumer Financial Service Companies,” 68 Consumer Fin. L.Q. Rep. 32 non-negotiable). (2014). 50. The court stated that: “BuildDirect could easily have accom- 8. See, e.g., authorities cited supra at note 5. plished that purpose by drafting the contract employing words of 9. See, e.g., Walker, 2015 OK 30, at ¶¶9 & 11. See also infra note 25. express incorporation ….” Walker, 2015 OK 30, at ¶15. See also supra this 10. See supra note 2. See also Moringiello & Reynolds (2009), supra text at note 35. Absent an unprecedented strictness of interpretation, it note 5, at 322 – 23. is difficult to conceive a more express incorporation than the phrase 11. See, e.g., John Edward Murray Jr., Contracts: Cases and Materials “subject to.” 1 – 2 (7th ed. 2015). See also infra note 46. 51. See supra this text at notes 41 - 44. 12. Walker, 2015 OK 30, at ¶3. In this article your author uses the 52. Walker, 2015 OK 30, at ¶14. See also supra this text at notes 35 – term “printed contract” to mean the written documentation, recogniz- 40. ing that the contract is the agreement between the parties, not its docu- 53. Walker, 2015 OK 30, at ¶¶14 – 15. See also supra this text at notes mentation. See, e.g., Murray, supra note 11, at 2 – 6. 40 – 43. 13. Walker, 2015 OK 30, at ¶3. Under the UETA, a facsimile copy is 54. See supra this text at note 44. treated the same as the signed original. See supra note 2 and UETA §7 55. Id. See also supra this text at notes 27 – 34. & cmt. 56. Id. See also sources cited supra at note 5; and see discussion below. 14. Walker, 2015 OK 30, at ¶3. 57. See, e.g., Moringiello & Reynolds 2009, supra note 5, at 326 (cit- 15. Id. at ¶¶4 & 5. ing American Law Institute, Principles of Software Contracts (Proposed 16. Id. at ¶5. Final Draft 2009)). 17. Id. at ¶6. 58. See supra this text at notes 40 - 43. 18. Id. 59. Id. Perhaps even adding the word “additional” or “separate” in 19. Id. at ¶7. front of the reference to “Terms of Sale” would be sufficient to address 20. Id. the Walker concerns. Almost certainly, a link or cross-reference to the 21. Id. location of the additional terms, if conspicuous, would be sufficient. 22. Pub. L. No. 80-282, 61 Stat. 669 (1947) (codified as amended at See discussion below. 9 U.S.C.A. §§1 – 16). See generally Scheuneman, Lynyak & Pierce, supra 60. See UCC §2-102; and see infra note 61. note 7. 61. See, e.g., Moringiello & Reynolds 2009, supra note 5, at 322 – 23 23. See, e.g., Walker, 2015 OK 30, at ¶8. In Walker the parties agreed (noting the relation between the UCC and the UETA). that Oklahoma law applied. 62. See id.; and see UCC §1-103 & UETA Prefatory Note. 24. Walker, 2015 OK 30, at ¶9. 63. See UCC Article 2 pt. 2, and §2-302. See also supra this text at 25. Id. at ¶10 (citing: Monkey Island Dev. Auth. V. Staten, 76 P.3d 84 notes 5 - 7 & 9 - 10. (Okla. Civ. App. 2003); and High Sierra Energy, LP v. Hull, 241 P.3d 1139 64. See supra this text at notes 5 & 7. (Okla. Civ. App. 2010)). 65. See supra notes 7 & 22. 26. Id. at ¶11 (citing 11 Williston on Contracts §30.25 (4th ed. 1999)). 66. See, e.g., email of Bob Luttrell, an attorney with McAfee & Taft 27. Id. This language overstates the latter requirement. See infra this in Oklahoma City, referencing the Walker decision in a distribution to text at notes 31 – 33 and note 44. [email protected]: “Oklahoma has never been too friendly to 28. See Walker, 2015 OK 30, at ¶(also citing Okla. Stat. tit. 15 §158, arbitration provisions.” and One Beacon Ins. v. Crowley Marine Serv., 648 F.3d 258 (5th Cir. 2011)). 67. See supra note 7. 29. Id. at ¶12. 68. See, e.g., Moringiello & Reynolds 2010, supra note 3, at 175, for 30. Id. definitions of these terms. 31. See supra note 5. 69. See supra this text at notes 8 & 29 – 43. 32. Walker, 2015 OK 30, at ¶13. 70. See, e.g., Moringiello & Reynolds 2009, supra note 5, at 318 – 19. 33. Id. (citing: One Beacon Ins., 648 F.3d at 268 & 269; Cooper v. Fle- 71. See, e.g.: supra this text & note 62; UCC §2-102 (deferring to sner, 103 P. 1016 (1909); and McDonald v. McKinney Nursery Co., 143 P. consumer protection statutes); Murray, supra note 11, at 468 – 87. 191 (1914)). 72. See, e.g., Scheuneman, Lynyak & Pierce, supra note 7. 34. Id. (quoting Porter v. Okla. Farm Bureau Mut. Ins. Co., 330 P.3d 73. See, e.g., id. (referencing Margae, Inc. v. Clear Link Technologies, LLC, 511 (2014)). 2008 WL 2465450 (D. Utah June 16, 2008) (“there were two sophisticated 35. See supra this text at note 14. parties, so the court properly respected their freedom of contract.”). 36. Walker, 2015 OK 30, at ¶14. See infra this text at notes 48 – 50. 74. 2009 U.S. Dist. LEXIS 120049 (S.D. Ind. Dec. 22, 2009) (noted in 37. Walker, 2015 OK 30, at ¶14. Moringiello & Reynolds 2010, supra note 5, at 176). 38. Id. 75. Appliance Zone, id., at *9 – 10. 39. Id. 76. Id. at *11 – 12. 40. Id. 77. Id. at *12. 41. Id. at ¶15. 78. See Moringiello & Reynolds 2010, supra note 5, at 176 – 77. 42. Id. Appliance Zone also was a clickwrap case involving a forum selection 43. Id. clause, but that distinction seems irrelevant here given that the means 44. Id. at ¶16. As indicated above, this description overstates the of assent was not at issue in Walker. third requirement, as proof of actual knowledge is not required. See, 79. 2008 WL 2465450. See supra note 73. e.g., supra this text at notes 27 – 34, and discussion below. 80. Margae, 2008 WL 2465450, at *2 (noted in Moringiello & Reyn- 45. See, e.g., supra this text at notes 9 – 11 & 23 – 26. olds 2009, supra note 5, at 318 – 19). 46. See, e.g., supra note 11. Something over 90 percent of all measur- 81. Both parties were internet marketing companies. Id. at *5 – 6. able human progress has occurred since the English common law 82. See, e.g., the definition of browsewrap in Moringiello & Reyn- judges created contract law in the 17th and 18th centuries. See, e.g., olds 2010, supra note 5, at 175. Matthew Scholnfeld, Opinion, “Air Jordan and the 1%,” Wall Str. J., 83. 2009 U.S. Dist. LEXIS 75378 (C.D. Ill. Aug. 25, 2009) (hyper- July 11, 2012, at A11. “The rules of the game changed dramatically in linked warranty disclaimer). the second half of the 18th century with the industrial revolution, 84. Id. (as noted in Moringiello & Reynolds 2010, supra note 5, at which embodied the workings of what we now know as capitalism – 177). the system that would lift millions out of grinding poverty.” John 85. UCC §1-201(b)(10). See also UCC §2-302.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2357 86. 835 N.E.2d 113 (Ill. Ct. App. 2005). development in the history of private law, when the English common 87. PDC Laboratories, 2009 U.S. Dist. LEXIS 75378, at *8 – 9 (as noted law judges grafted the law of merchants (the “Law Merchant”) onto in Moringiello & Reynolds 2010, supra note 5, at 178). the English common law, creating the law of contracts and permitting 88. 668 F.Supp.2d 362 (E.D. N.Y. 2009) (noted in Moringiello & (for the first time) ordinary citizens (who were at that time essentially Reynolds 2010, supra note 5, at 178). economic serfs) to engage in legally-enforceable private contracts on 89. Id. the same terms as members of the commercial and political elite. See 90. Id. supra this note. Philosophically at least, it can be said to have begun 91. Id., 668 F.Supp.2d at 365 – 67. with the Magna Carta in 1215, but it took the English judicial revolution 92. 795 F.Supp.2d 770 (N.D. Ill. 2011) (as noted in Boykin, supra associated with contract law to bring the aspirations to practical fulfill- note 5, at 257 - 59). ment. See, e.g., Daniel Hannan, Review, “Eight Centuries of Liberty?,” 93. See supra Part V.B. Wall Str. J., May 30 – 31, 2015, at C1. The industrial revolution, and 94. Van Tassell, 795 F.Supp.2d at 792 (as quoted in Boykin, supra most of history’s material improvements in ordinary life, soon fol- note 5, at 258). For another case, similar to Van Tassell, see Jerez v. JD lowed. See, e.g., supra note 46. Closeouts, LLC, 943 N.Y.S. 2d 392 (D.Ct. Nassau Cnty. 2012) (noted in 105. See, e.g., Joe Light, “FHA Aims to Clarify Loan-Rule Condi- Boykin, supra note 5, at 259). In Jerez, the forum selection clause was tions,” Wall Str. J., May 22, 2015 at C5 (reporting that major mortgage “buried” and “submerged” within “Terms of Sale” on the defendants’ lenders have been “driven … away” from making FHA loans by regu- “About Us” web page, which could only be accessed by clicking an latory burdens and risks applicable to transactions with low-income “inconspicuous” link. Id. borrowers). Arguably the results have been unsatisfactory for some of 95. 805 F.Supp.2d 904 (N.D. Ca. 2011) (noted in Boykin, supra note the intended beneficiaries. See, e.g., Nick Timiraos, The Outlook, 5, at 259). “Behind the Rise of the New Housing Headwind,” Wall Str. J., June 8, 96. Id. at 912. For another, similar case, see Sherman v. AT&T Inc., 2015, at A2 (“The U.S. Homeownership rate is below where it was 20 2012 WL 1021823 (N.D. Ill. March 26, 2012) (the user completed an years ago [and recent research] predicts Homeownership will continue online registration form indicating acceptance of the AT&T terms of to slip for at least 15 years …. The upshot is that fewer than half of new service, containing an arbitration clause, and “actively clicked that he households formed this decade and next will own homes.”). accepted the hyperlinked terms”). The court held that this was suffi- 106. See, e.g., Greg Ip, Capital Account, “Cost Analysis Missing in cient as notice of and assent to the arbitration clause. Id. at * 3 – 5 (as Bank Rule Debate,” Wall Str. J., May 14, 2015, at A2. noted in Boykin, supra note 5, at 260 – 61). 97. 2012 WL 768125 (D. Colo. Mar. 8, 2012) (also noted in Boykin, supra note 5, at 261). 98. Id. at * 12 – 13. About The Author 99. Moringiello & Reynolds 2010, supra note 5, at 180, quoting Juliet M. Moringiello & William L. Reynolds, “Survey of the Law of Cyber- space: Internet Contracting Cases 2004 – 2005,” 61 Bus. Law. 433, 436 Alvin C. Harrell is a professor

(2005). of law at OCU School of Law 100. See discussion above. and president of Home Savings 101. Id. 102. It should be noted again that this still does not require the and Loan Association of Okla- consumer to actually access, or read, the incorporated terms. See, e.g., homa City. He is co-author of a Walker, 2015 OK 30, at ¶13: “[A] party’s failure to read duly incorpo- dozen books, including The Law rated terms will not excuse the obligation to be bound” (citing McDon- ald v. McKinney Nursery Co., 1914 OK 438, 143 P. 191). See generally supra of Modern Payment Systems and this text and notes 22-44. Notes (with Professor Fred H. 103. Id. 104. See, e.g., Niall Ferguson, The Great Degeneration (2013), Miller). He is editor of Consumer reviewed in George Melloan, Bookshelf, “A Jeremaid to Heed,” Wall Finance Law Quarterly Report. Str. J., June 20, 2013, at A19; Niall Ferguson, Opinion, “The Regulated He chaired the ABA UCC Committee task forces on States of America,” Wall Str. J., June 19, 2013, at A15; Iain McDaniel, Adam Ferguson in The Scottish Enlightenment (2013), reviewed in Jef- State Certificate of Title Laws and Oil and Gas frey Collins, Bookshelf, “A Skeptical Modern,” Wall Str. J., Mar. 25, Finance. 2013, at A15. This is, to some extent, a gradual reversal of the greatest

2358 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 ANNUAL MEETING

House of Delegates Actions The following resolution and title examination standards report were submitted to the House of Dele- gates at the 111th Oklahoma Bar Association Annual Meeting at 10:30 a.m. Friday, Nov. 6, 2015, at the Sheraton Hotel in Oklahoma City. Actions are as follows:

RESOLUTION NO. 1: CLIENTS’ 2016 OBA Officers and New Board SECURITY FUND RULES Members BE IT RESOLVED by the House of Dele- Officers gates of the Oklahoma Bar Association that President the amendments to the Clients’ Security Garvin A. Isaacs, Oklahoma City Fund Rules, as published in the Oklahoma Bar Journal and posted on the OBA website President-Elect at www.amokbar.org, be approved and Linda S. Thomas, Bartlesville adopted by the Supreme Court. (Requires a Vice President majority vote for passage. OBA Bylaws Art. Paul D. Brunton, Tulsa VIII Sec. 5) (Submitted by the Clients’ Secu- rity Fund Task Force and OBA Board of Board of Governors Governors.) Supreme Court Judicial District Three John W. Coyle III, Oklahoma City Supreme Court Judicial District Four Kaleb K. Hennigh, Enid TITLE EXAMINATION Supreme Court Judicial District Five STANDARDS James L. Kee, Duncan Action: The Oklahoma Title Examinations Member At Large Standards revisions andADOPTED additions pub- Alissa Hutter, Norman lished in The Oklahoma Bar Journal 86 2069 (Oct. 17, 2015) were approved in the pro- Young Lawyers Division Chair posed form. The revisions and additions Bryon J. Will, Oklahoma City are effective immediately.

ADOPTED

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2359 2016

Garvin A. Isaacs Linda S. Thomas Paul D. Brunton Oklahoma City Bartlesville Tulsa President President-Elect Vice President

John W. Coyle III Kaleb K. Hennigh James L. Kee Oklahoma City Enid Duncan District Three District Four District Five OBA Officers and New Board Alissa Hutter Bryon J. Will Members Norman Oklahoma City Member At Large YLD Chair

2360 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 PHOTO HIGHLIGHTS

OBA 111TH ANNUAL MEETING

OBA President Poarch, Chief Justice John Reif and OBA Vice President Glenn Devoll enjoy the Wednesday evening President’s Reception.

OBA President David Poarch welcomes keynote speaker Eric Liu to the Annual Meeting. Mr. Liu signed copies of his books for numerous meeting attendees.

State Sen. David Holt of Oklahoma City speaks during the Thursday CLE Plenary session. He was part of a panel discuss- Keynote speaker Eric Liu presents “The True Meaning of Patriotism” during ing the topic “Democracy is Not a the Annual Luncheon sponsored by the OBA Family Law Section. Spectator Sport.”

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2361 David Poarch presents the OBA President’s Award to lawyer John E. Green of Oklahoma City. Mr. Green was honored in appreciation of his enduring and steadfast leadership. He was recognized for being a pioneering OBA member, a mentor of generations and a revered community leader.

Meeting attendees enjoyed great food and a festive atmosphere during the “It’s Five O’Clock Somewhere” reception sponsored by the OBA sections. Rep. Richard Morrissette of Oklahoma City, Justice Noma Gurich and lawyer John Miley enjoy the atmosphere during the “It’s Five O’Clock Somewhere” reception.

TU Law Professor Anna Carpenter, Access to Justice Commission Chairperson David Riggs and Vice Chief Justice Douglas Combs discuss the status of the Access to Justice Commission during the annual President’s Breakfast.

Students from Oklahoma City’s Douglass High School Junior ROTC form a color guard to lead General Assembly attendees in the Pledge of Allegiance.

2362 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Oklahoma Bar Foundation President Jack Brown presents the 2015 Roger Scott Memorial Award to Lawton lawyer Dietmar Caudle.

Bartlesville lawyer Linda Thomas addresses the House of Del- egates. Ms. Thomas was elected president-elect during the Annual Meeting and will serve as 2017 OBA president.

Court of Criminal Appeals Presiding Judge C. Clancy Smith and Chief Justice John Reif speak about issues related to the judiciary during Friday’s General Assem- bly.

2014 YLD Chair Kaleb Hennigh, Chair-Elect Bryon Will and 2015 YLD Chair LeAnne McGill attend the Young Lawyers Division Annual Meeting. Mr. Will was presented the YLD Officer of the Year Award.

OBA President-Elect Garvin Isaacs presides over the Friday meeting of the House of Delegates.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2363 Enhance Your Networking, Join a 2016 OBA Committee It is time for all of us to come together and promote public confidence in the judicial branch of government. We need to work together. OBA committees will help with this project. Please consider joining a committee Standing and participate in educating the public on the history of our country and its three branches of government. Committees You benefit from the contacts you make, and the association benefits • Access to Justice from the work that is done. New members with fresh ideas are encour- Awards aged to become involved. Geography is a non-issue with today’s tech- • nology. Teleconferencing from your desk and videoconferencing in Tulsa • Bar Association make it easy to attend meetings if you can’t be there in person. Technology Sign up today. Option #1 – online at www.okbar.org, scroll down to the • Bar Center Facilities bottom of the page. Look for “Members” and click on “Join a Commit- tee.” Options #2 & #3 – Fill out this form and mail or fax as set forth below. • Bench and Bar I’ll be making appointments soon, so please sign up by Dec. 11, 2015. I’m counting on your support next year to keep our committees active. • Communications • Disaster Response and Relief • Diversity Garvin Isaacs, President-Elect • Group Insurance Note: No need to sign up again if your current term has not expired. Check www.okbar.org/members/committees.aspx for terms • Law Day • Law-related Please Type or Print Education Name ______• Law Schools Telephone ______OBA # ______• Lawyers Helping Lawyers Assistance Address ______Program

City ______State/Zip______• Legal Intern • Legislative FAX ______E-mail ______Monitoring

Committee Name • Member Services 1st Choice ______• Military Assistance 2nd Choice ______• Paralegal 3rd Choice ______• Professionalism

Have you ever served on this committee? If so, when? How long? • Rules of Professional Conduct 1st Choice q Yes q No ______2nd Choice q Yes q No ______• Solo and Small Firm Conference q q 3rd Choice Yes No ______Planning n Please assign me to q one q two or q three committees. • Strategic Planning Besides committee work, I am interested in the following area(s): • Uniform Laws ______• Women in Law ______• Work/Life Balance Mail: Garvin Isaacs, c/o OBA, P.O. Box 53036, Oklahoma City, OK 73152 Fax: (405) 416-7001

2364 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2365 FROM THE EXECUTIVE DIRECTOR

Diverse Enough? By John Morris Williams

The Diversity Committee just 2015, the U.S. Census Bureau personal experience that if we held its annual awards event. estimates the following racial were all DNA tested these labels All I have to say about that is: demographics for would quickly change and the “well done!” Jabar Shumate Oklahoma: multiracial categories would be gave the keynote address and demonstrated not only his known talent, but also the commitment of the University of Oklahoma to ensure that it is a place of teaching and learning for everyone who enrolls. Teaching and learning about how our actions, even out of ignorance, affect others is a worthwhile endeavor. Former Speaker Kris Steele in his remarks after accepting an award for his organization, TEEM, reminded us “there are no spare Oklahomans.” I like the idea that no one is “spare.” If someone were to ask me if there were any spare lawyers I would certainly say there are not. In pondering that notion I tried to imagine what that would even mean. Given the consistently low ratings of access to justice in the state of Oklahoma I submit that in many places not only do we not have any spares, but we have some real needs as well. 2015 racial demographics for Oklahoma provided by the U.S. Census Bureau. The Diversity Committee event really made me think once again on how the OBA is doing the overwhelming majority. First, I want to say the titles as a welcoming organization However, this is all skin-deep are from the Census Bureau. and how well our organization stuff so we get what we get for Secondly, I believe based on my reflects the citizens we serve. For demographic purposes.

2366 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 If the lawyer population is ness practice. I will let some- when our goal is to serve the representative of the general one else talk to you about the public. For the public to have population then more than one legal ramifications. On the confidence in us we must be a out of every four Oklahoma other hand I have also heard mirror of the community. Cli- lawyers would be something the complaint about there not ents need to be able to walk other than “white.” The OBA being enough lawyers of color into the room and be able to does not keep mandatory to hire. Which again leads me identify with someone like racial or ethnic classifications. to ponder are we diverse them whether it is their law- You can use your own obser- enough and if not what do we yer, opposing counsel, a judge vations to judge how we need to do about it? or support staff. are doing. I have only touched on race Diverse enough? I challenge A few years ago I was on the and ethnicity. When you bring you to ask yourself “are we diversity advisory board for a gender, sexual orientation, diverse enough” and help us national organization. One of physical disabilities, religion as public citizens to ensure the things I remembered most and other identifiers into the that we lead by example of was people saying that “when mix the job of being diverse what both the law and civi- no one in the room looks like and inclusive is a bit more of lized society demand of us. me I wonder what is going a task than just appointing on.” This also applied to busi- someone of color. ness and retail settings. It I think our members are sen- quickly became apparent to sitive to these issues. However, me that diversity was good as I look around large gather- business. If you are excluding To contact Executive Director ings of members I realize we more than one-fourth of the Williams, email him at johnw@ have work to do. I do not population from your hiring okbar.org. think we are diverse enough practices, that is a bad busi-

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n August 2015 Issues 2016 Issues Bankruptcy n December Editor: Amanda Grant Ethics & Professional n January [email protected] Responsibility Meet Your OBA Deadline: May 1, 2016 Editor: Carol Manning Editor: Shannon L. Prescott n September [email protected] n February Bar Convention Deadline: Aug. 1, 2015 Probate Editor: Carol Manning Editor: Judge Allen Welch n October [email protected] Real Property Deadline: Oct. 1, 2015 Editor: Shannon Prescott [email protected] n March Deadline: May 1, 2016 If you would like to Criminal Law Editor: Melissa DeLacerda n November write an article on [email protected] President’s Topic these topics, Deadline: Oct. 1, 2015 Editor: Melissa DeLacerda [email protected] contact the editor. n April Deadline: Aug. 1, 2016 Law Day n December Editor: Carol Manning Ethics & Professional n May Responsibility Indian Law Editor: Renée DeMoss Editor: Leslie Taylor [email protected] [email protected] Deadline: Aug. 1, 2016 Deadline: Jan. 1, 2016

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2367 LAW PRACTICE TIPS

Strategy and Tactics: Plan Your Work and Work Your Plan By Jim Calloway

Adopting a strategic plan for That is a really lousy way to My personal hope is that your law practice probably celebrate the new year. many lawyers and law firms doesn’t sound like an excit- plan to improve their busi- ing proposition to many law- ness operations by imple- yers. This is particularly true menting (or better incorporat- if some eager beaver wants to ing) improved operations schedule a mandatory week- next year. This includes many end retreat for the entire law items I have written about in firm to work on a strategic “Law Practice Tips” such as plan. No one would dispute better implementation of the need for a business plan. practice management soft- But many of us have been ware and services, adopting involved in strategic plan- automated document assem- ning exercises for volunteer bly, improving procedure organizations that generated manuals and workflow check- a lot of words and ideas, but lists, im-proving client satis- didn’t seem to really change faction tools and implement- things. ing speech recognition for poor typists, to name a few. Last month in this space, I wrote a column titled “How The start of a new year is a is Your Law Practice Going to natural time to focus on strat- Change?” While there are egy relating to your vision many necessary changes that and long-term plans for your lawyers should be imple- law firm. Adopting automat- menting in their business ed document assembly or operations, this column was revamping your billing pro- also intended to highlight the cess to make it more effective many changes occurring in Strategy relates to what you may be critically important for society and in the way busi- want to accomplish and the your firm and therefore one of nesses operate, which will pro- goals you set. Tactics relate your highest priorities. But vide many opportunities for more to how you will accom- those are tactics, not strategies. lawyers. plish your goals. A strategy for “Future Proofing Your Law many businesses might be Firm” was the title for one of As the year draws to a close, increasing revenue or market my Practice Management making plans for next year is share. Various types of tactics Advice columns in the ABA’s a very important practice. If can include everything from Law Practice Magazine back in you want to make positive spending more money on mar- the summer of 2013. changes in your law practice keting to hiring more employ- for next year, you certainly The points I made in that col- ees to increase production. cannot wait to make your umn still serve as a framework plan until New Year’s Eve.

2368 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 for visionary strategic planning you should be able to outline to reduce the attorney fees it for law firms today. those factors to the prospective pays. Staff reductions may look client and show how they efficient on the financial side. Behave as if it is all about impact cost. the clients, because it is. We are But training staff to help you provide extra value to your cli- in a service profession. But it is Know your word processor. ents may be more effective and often easy to focus on the quali- Love your word processor. more positive. ty of legal services provided at Lawyers are wordsmiths. We the expense of customer ser- draft lots of correspondence, Appreciate that law firm vice. We must remember that contracts, pleadings and memo- growth cannot be infinite. Law clients pay attention to both randa. Today’s lawyer should firms have a historical track your communications and understand word processing record of impressive revenue work product. Every law firm tools like Microsoft Word Quick growth over the last several strategic plan must pay atten- Parts, macros and templates. decades. But the past does not tion to the client experience. always predict the future. Blog- With the opening of each new ger and law firm consultant matter, lawyers should discuss Bruce MacEwen’s book Growth their client’s expectations and Is Dead: Now What? is available goals and record this informa- Every lawyer on Amazon via his blog.1 tion in the client file. We must who types less than It is an inexpensive purchase always remember that this is and a worthwhile read, no mat- how the client will judge our 30 or 40 words ter what the size of your law services. A corollary is that it is firm. We all worry about becoming an increasingly risky a minute should be change and challenges. But the proposition to represent clients given a microphone interesting thing about today’s with completely unrealistic technologically driven business expectations. A disgruntled and a copy environment is that lower reve- former client — even one with nues need not equal lower an objectively great result — is of Dragon profits. not an asset for a law firm. NaturallySpeaking… The above ought to include Ignore technology advances at your peril. Information tech- enough items to fuel any law nology and the speed of infor- firm strategic planning retreat. mation flow today is more a Of course for any business to part of our daily lives and daily Every lawyer who types less do real strategic planning, the business operations. This is than 30 or 40 words a minute past few years of financial data especially true for lawyers, who should be given a microphone will be required. For those who spend a large amount of their and a copy of Dragon Natural- would like a primer on law time processing and managing lySpeaking and then provided firm management, First Among information. What used to be with training on how to make it Equals: How to Manage a Group contained in shelves full of law actually work for them. (I don’t of Professionals by Patrick J. books and paper client files is really care whether you call McKenna and David H. Maister now more properly managed in that one a strategy or a tactic — is a classic, and it is available at the digital format. Information it is critical!) quite a reasonable price on Amazon.com. technology management must Practice being both efficient be an important part of your and effective. Management Lawyers are often criticized strategic plan. guru Peter F. Drucker’s often- for not acting like businesspeo- Have a better answer for quoted statement on this topic ple. It is certainly true that his- “What will the total cost be?” is: “Efficiency is doing the thing torically law firms, at least We all like predictable costs. right. Effectiveness is doing the until they became large law Anytime you can quote a right thing.” Setting up new firms, behaved more as a col- potential client a fixed fee, you tools to capture every stray lection of individual profes- increase the chance that a client tenth of an hour so that it can sional service providers with will hire your firm. But even be billed may be efficient, but it pooled resources, expenses where a range of total fees and is not very effective if the client and revenues than like many costs is based on many factors, is already pressuring the firm traditional businesses.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2369 Lawyers tended to focus tion and the practice areas of could agree on taking steps to more on new developments in the law firm’s focus. It need not solve the three most pressing the law and developing new be a lengthy document. In fact, future concerns of the firm, clients than on trends that for smaller law firms, a list of many would agree that is an might be revealed by reading bulleted points and their priori- outstanding first result. But the Wall Street Journal or Har- tization rank is probably the ultimately, regular strategic vard Business Review. Those two most manageable result. planning meetings to review areas still require a lawyer’s plans, discuss success and fail- Any future planning exercise attention. Today’s changes, ures, and make modifications requires that all of the stake- often fueled by technology for the future will become a holders participate. So, while advances, happen so quickly part of the practice of law for there may be certain issues that that the law, and certainly law- successful law firms. are best considered only by the makers, often lag behind. This firm’s lawyers or by the part- The simple question that all lag makes keeping on top of ners, it is generally the case that of the lawyers in a firm should new developments in the law critical staff members need to discuss is what they want to be even more challenging, but it be incorporated into the pro- doing next year, five years from also means that there is a great- cess for it to have value and now and 10 years from now. er opportunity for the lawyer to success. We won’t have the ability to provide value when a regulato- foresee all of the changes on ry framework is not settled and POPULAR STRATEGIC our horizon. But we can control uncertain. TOOL our destiny to a greater extent Strategic planning is very One popular strategic man- if we follow the adage to “plan important for today’s law firm, agement tool is to employ the your work and work your including solo practitioners and SWOT analysis, where atten- plan.” small law firms. Lawyers tend tion is paid to the law firm’s The great Yogi Berra passed to work very hard and stay strengths, weaknesses, oppor- away Sept. 22, 2015. He was very busy. It is important to tunities and threats. While the known for his skill on the base- step back regularly and look at firm retreat is a popular format, ball diamond and his quotable possible improvements to the it is also possible that a series of quotes. My favorite Yogism law practice to provide better luncheons or afternoons may relates to strategic planning: client service and efficient oper- work well. The challenge is “You’ve got to be careful if you ations. Many law firms know that lawyers will attempt to don’t know where you’re going the changes that they need to “escape from” the process, cit- because you might not get accomplish already, but seem to ing deadlines or client emer- there.” suffer from the lack of available gencies. If the firm decides to time to research and implement make some changes based on 1. adamsmithesq.com these changes. Strategic plan- this process, it is important ning is the best way to deter- that everybody was given the Mr. Calloway is OBA Manage- mine how to free up resources opportunity to be heard and ment Assistance Program director. for long-term goals. to participate. So participation Need a quick answer to a tech must be mandatory. problem or help resolving a man- Your strategic plan will be agement dilemma? Contact him at unique. It will be based on your It is desirable, but not neces- 405-416-7008, 800-522-8065 or interests, your existing client sary, to cover all outstanding [email protected]. It’s a free member base, your geographical loca- issues. If the firm management benefit!

2370 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 ETHICS & PROFESSIONAL RESPONSIBILITY

A Couple of Not-So-Random Thoughts Regarding Your Ethical Responsibilities By Joe Balkenbush

WHAT YOU DON’T KNOW my office. Some callers have Per Oklahoma law, all contact CAN HURT YOU admittedly not read the rele- with the ethics counsel is privileged and confidential.3 When I accepted the position vant rule prior to their call. If A of ethics counsel at the OBA, I the caller were familiar with the record of each call is main- thought I was pretty familiar relevant rule and the comments tained along with the name of with the Oklahoma Rules of following the rule, the answer the inquiring attorney, the to the question posed might attorney’s bar number and tele- Professional Conduct (ORPC)1 and Rules Governing Disciplin- phone number, a brief synopsis of the facts stated and advice/ ary Proceedings (RGDP).2 It didn’t take very long for me guidance given. Any advice/ to realize how much I didn’t guidance given by the ethics know. The learning curve has Unless you counsel is advisory in nature been pretty steep. After a few are intimately and is not binding upon the months as ethics counsel, it has Office of the General Counsel, become clear to me that some familiar with the the Professional Responsibility of my fellow members of the Tribunal (PRT) or the Supreme bar are equally unfamiliar with ORPC and RGDP, Court. Calls to ethics counsel these rules. can be a mitigating factor when you don’t know the general counsel, PRT or We have all heard the saying Supreme Court is determining “you don’t know what you what you don’t what consequences, if any, don’t know.” Unless you are know. should be imposed. My office intimately familiar with the is a resource for OBA members ORPC and RGDP, you don’t concerning their own conduct, know what you don’t know. not the conduct of another How can you comply with the have been clear. If not, call me! attorney. Also, the office of eth- rules when you don’t know Or, if you would like some ics counsel is not a resource for what they are or what they assurance that your under- non-OBA attorneys or members require? The obvious solution standing of the rule and its of the general public. is to read the rules! As we all application is correct, call me! Knowledge of the ORPC and know, the ORPC and RGDP are The OBA created the position RGDP is essential to the prac- codified in Title 5 of the Okla- of ethics counsel so attorneys tice of law. These rules are just homa Statutes titled “Attorneys can be proactive regarding ethi- as important as an attorney’s and the State Bar.” cal issues that arise and obtain knowledge of the substantive a timely answer to their ques- Since I arrived at the OBA, law of the areas in which they tions. Take advantage of the more than 1,000 telephone calls practice. Lack of knowledge of available resource and contact and/or emails have come into rules could result in an attor- me with any questions.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2371 ney’s license being suspended ing down an attorney’s law planning. Likewise, it is a or worse. Few, if any, lawyers practice. None of us want to necessity for each and every set out to violate the rules. But leave our loved ones with that attorney to have a succession again, you don’t know what task. The easy solution is to plan. It’s not a matter of if an you don’t know. Read the rules! prepare your succession plan. attorney will need to plan for There are 57 of them. If an All of the necessary forms have such eventualities, it’s when! attorney reads one rule each been prepared and are available An attorney’s law practice is week, the task would be com- to you, free of charge. In 2014, certainly part of his or her pleted in about a year. There’s the OBA created The Planning estate. Please don’t burden no reason why the rules Ahead Guide: Attorney Transition your loved ones with the diffi- couldn’t be read more quickly, Planning In The Event Of Death cult task of closing a law prac- but as we all know, the longest Or Incapacity.4 tice. No one plans to fail, they journey begins with the first fail to plan! Please take the time to review step! So, take that first step the materials prepared for you Mr. Balkenbush is OBA Ethics and become familiar with and in the planning guide. Simply Counsel. Have an ethics question? knowledgeable of the ORPC appointing a successor attorney It’s a member benefit and all inqui- and RGDP. to deal with your clients, their ries are confidential and privileged. SUCCESSION PLANNING files and cases will be a positive Contact Mr. Balkenbush at joeb@ IS IMPERATIVE first step in planning ahead! okbar.org or 405-416-7055; 800- 522-8065. So far in 2015, one attorney or Although your familiarity more has become incapacitated, with the ORPC and RGDP are 1. www.oscn.net/applications/oscn/Index. passed away or otherwise not of paramount importance, asp?ftdb=STOKST05&level=1 able to continue the practice of 2. www.oscn.net/applications/oscn/index. preparation of your succession asp?ftdb=STOKRUDP&level=1 law. Every month, I have plan is equally important. I 3. Title 5 O.S. Appendix 3A, Rule 8.3(d) received a call from a mother, urge you to follow the advice 4. My.okbar.org/oba_attorney_transition_ planning_guide.pdf. The link to the pdf may father, child or friend of an you would give any client be found at My.okbar.org on the righthand side attorney asking for help in clos- regarding the necessity of estate of the webpage after logging in and is titled Attorney Transition Planning Guide.

www.okbar.org Your source for OBA news.

At Home At Work And on the Go

2372 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 BOARD OF GOVERNORS ACTIONS Meeting Summaries

The Oklahoma Bar Association President-Elect Isaacs regarding Budget Committee meeting, Board of Governors met at the a 2016 OCU program, Women Member Services Committee Holiday Inn Express & Suites in in Law Conference luncheon, meeting and Comanche County Norman on Sept. 25, 2015. Cleveland County Bar Associa- Bar Association monthly meet- REPORT OF THE tion reception, staff directors ing. Governor Knighton PRESIDENT meeting and interim study reported he attended the Sep- meeting on courthouse security tember Cleveland County President Poarch reported he at the House of Representa- Bar Association meeting, Law- participated in the admission tives. Executive Director Wil- related Education Committee ceremony for new admittees at liams reported President Poarch meeting, Cleveland County Bar the Capitol and in the From the did a great job at the From the Association social hour and School House to the White School House to the White dinner and Lawyers Helping House CLE presentation. He House CLE presentation. He Lawyers Assistance Program attended the Budget Committee said about 65 people attended Committee meeting. Governor meeting, Boiling Springs Insti- including Leadership Academy Marshall reported he attended tute in Woodward, Women in members, and he heard many the OBF/OBA dinner, Licensed Law Conference in Oklahoma positive comments about the Legal Intern Committee meet- City and dinner hosted by the seminar. ing, Boiling Springs Legal Insti- tute and Cleveland County Bar Cleveland County Bar Associa- BOARD MEMBER REPORTS tion honoring the Board of Association dinner for OBA Governors. Governor Gifford reported board members. Governor Por- ter reported she attended the REPORT OF THE he attended the Oklahoma PAST PRESIDENT County Bar Association Board Oklahoma County Bar Associa- of Directors meeting and U.S. tion annual dinner, Oklahoma Past President DeMoss Army Judge Advocate Gener- County bar’s CLE Committee reported she attended the Bud- al’s worldwide CLE at the meeting, Cleveland County Bar get Committee meeting and Judge Advocate General’s Association social for the Board reviewed articles being consid- Learning Center and School. of Governors, William J. Hollo- ered by the Board of Editors. Governor Gotwals reported he way Jr. Inn of Court opening She attended the Women in attended the Quality Assurance banquet and Women in Law Law Conference luncheon and Panel meeting for the Tulsa Conference, where she served also participated as a panel family court, Tulsa County Bar as moderator for the judicial member for one of the confer- Association Board and Com- panel. Governor Sain reported ence sessions. mittee Chairs Leadership he attended the McCurtain Retreat, Inns of Court fall ban- County Bar Association lun- REPORT OF THE cheon and OBA/OBF dinner in EXECUTIVE DIRECTOR quet, OBA Awards Committee meeting and Beta Theta Pi Oklahoma City. Governor Ste- Executive Director Williams house rededication and alumni vens reported he attended the reported he attended the Okla- reunion/reception at OU. OBA/OBF dinner and Septem- homa Supreme Court Access to Governor Hicks reported he ber Cleveland County Bar Justice Commission meeting, attended the Tulsa County Bar Association meeting. Governor From the School House to the Foundation Board of Trustees Tucker reported he attended White House CLE seminar, meeting, Metropolitan Bar Con- Muskogee County Bar Associa- Hughes County Bar Association ference board teleconference tion monthly meeting, special meeting and 50-year pin pre- and participated in discussions county bar meeting to consider sentation, Budget Committee with OBA Leadership Academy a reinstatement resolution and meeting, new member swear- leadership. Governor Kinslow the OBA/OBF joint dinner. ing-in ceremony, meeting with reported he attended the Governor Weedn reported he

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2373 attended the OBA/OBF joint tee has developed a profession- Teachout to speak in Oklahoma dinner, Ottawa County Bar alism pledge, which it hopes to City on April 1, 2016, on the Association meeting and be added at new admittee Citizens United case. Budget Committee meeting. swearing-in ceremonies. The REPORT OF THE committee asked for direction YOUNG LAWYERS GENERAL COUNSEL on where to submit its propos- DIVISION REPORT al. He also reported a Tulsa General Counsel Hendryx Governor McGill reported County Bar Association updated board members on the she helped staff the Kick It For- committee distributed Tulsa lawsuit filed against the OBA ward Kickball Tournament, attorney Fred Slicker’s profes- by an individual in Illinois which was well attended and sionalism book to all new regarding a complaint of crimi- raised about $10,000 for the admittees. Governor Marshall nal defamation. She reported program. She attended the reported Legal Intern Commit- the Illinois attorney hired to Oklahoma County Bar Associa- tee members are researching represent the OBA successfully tion Family Law Section meet- two inquiries: 1) regarding an filed and argued a motion to ing, OBA Budget Committee interpretation to provide a rein- dismiss the case. The OBA is meeting, OBA Family Law statement procedure for an completely out of the litigation. Section meeting, Ruth Bader intern who had not registered The attorney will refund the Ginsburg Inn of Court 20th for the bar exam after gradua- portion of the retainer that was anniversary, new attorney tion and 2) should a provision not used. She reported a writ- swearing-in ceremony and Solo be made to address whether ten report of Professional & Small Firm Conference Plan- character and fitness comple- Responsibility Commission ning Committee meeting. tion should be required. Gover- actions and OBA disciplinary nor Porter said the Women in REPORT OF THE SUPREME matters for August was submit- Law Conference had a good ted to the board for its review. COURT LIAISON turnout with a great keynote speaker. Panel discussions were RATIFICATION OF Justice Kauger reported the also very good, with Past Presi- EMAIL VOTE FOR MCLE next free movie night with the dent DeMoss serving on one. PROGRAM DEVELOPMENT justices CLE will be the film Executive Director Williams Belle on Oct. 29. She said a joint said the OBA Budget Commit- The board voted to ratify an meeting of federal, state and tee has approved the budget for email vote approving agree- tribal judges will take place publication, and the board will ments with the Pennsylvania Nov. 6 at the Oklahoma Judicial review the proposed 2016 bud- Continuing Legal Education Center. The meeting will be get at its next meeting. Gover- Board (PaCLEB) for new soft- moderated by Judge Jerome nor Knighton said the Law- ware to track members’ MCLE Holmes, U.S. Court of Appeals related Education Committee credit and an annual license. 10th Circuit. She said a Dec. 10 promoted Constitution Day RATIFICATION OF EMAIL movie night will feature a live activities in schools and contin- VOTE APPROVING performance of A Tuna Christ- ues to work on updating the AGREEMENT WITH AN mas, a two-man play set in the legal guide for young adults. A ILLINOIS LAW FIRM fictional town of Tuna, Texas. special working committee is The board voted to ratify the BOARD LIAISON REPORTS pursuing re-establishing the Oklahoma Teacher of the Year email vote approving the legal Governor Stevens and Gener- Award. Governor Kinslow said services agreement with the al Counsel Hendryx said the the Member Services Commit- Illinois law firm. Rules of Professional Conduct tee heard a presentation from AWARDS COMMITTEE Committee is reviewing chang- Citrix, and information will be RECOMMENDATIONS es recommended by the ABA. submitted to the board for its Governor Gotwals reported the consideration. It was reported Awards Committee Chair Professionalism Committee has the Bench and Bar Committee Jennifer Castillo briefed the decided not to hold a sympo- is discussing judicial surveys, board that nominations were sium this year and will instead and the Diversity Committee received for all awards; howev- try to work with Educational will hold its award dinner Oct. er, the committee did not think Programs Director Susan Krug 15. President-Elect Isaacs said nominations in four categories on doing a CLE program at the he has invited Fordham Uni- were strong enough to merit an Annual Meeting. The commit- versity law professor Zephyr award this year. She reviewed

2374 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 the committee’s recommenda- with OBA staff and Eric Liu, BOARD MEMBER REPORTS tions and answered questions. Annual Meeting keynote speak- Governor Gotwals added com- er. He attended the Conference Governor Gifford reported ments from the meeting. The of Southern Bar Presidents he attended the Cleveland board approved the Awards meeting in Alexandria, Virginia. County Bar Association reception for board members and the Committee recommendations He also presented Ada Lois Oklahoma County Bar Associa- for OBA awards. Governor Sipuel awards at the Diversity tion Board of Directors meet- Marshall recommended that Committee awards dinner at ing. Governor Gotwals report- President Poarch call award the Oklahoma Judicial Center, ed he attended the Inns of recipients notifying them of the responded to an interview Court Pupilage Group meeting honor in addition to sending request from a local television and brainstorming for a presen- them a letter. President Poarch station conducting an investiga- tation in January on “Repre- agreed to do so. tive report on unauthorized senting the Unpopular Client,” practice of law issues and wrote PROPOSED NEW MEMBER Tulsa County Family Court a bar journal article. BENEFIT Quality Assurance Panel REPORT OF THE meeting, Tulsa County Bar Management Assistance Pro- VICE PRESIDENT Foundation budget preliminary gram Director Jim Calloway meeting, Tulsa County Bar reported the Member Services Vice President Devoll report- Association Family Law Section Committee heard a presenta- ed he attended the Garfield meeting, TCBA Board of Direc- tion from Citrix, which offers a County Bar Association meet- tors meeting and TCBF meet- number of services that would ing and worked on plans for ing. He also participated in the benefit OBA members. The the Board of Governors has inspection of the TCBA build- committee recommends the been event. ing renovation project with the OBA approve Citrix at its high- architect and campaign chair. est level of member benefit as REPORT OF THE PRESIDENT-ELECT Governor Hicks reported he an endorsed vendor. Mr. Callo- attended the Tulsa County Bar way reviewed the services. The President-Elect Isaacs re- Association Awards & Nomina- board authorized negotiations ported he attended the OBA tions Committee meeting, Uni- with Citrix and an agreement to Strategic Planning Committee versity of Tulsa Friends of be drafted. meeting and OBA budget hear- Finance luncheon and OBA CLIENTS’ SECURITY ing. He did a presentation on Ethics in 18 Holes CLE seminar FUND COMMITTEE the history of trial by jury at the with Ethics Counsel Joe Balken- APPOINTMENT Beckham County Bar Associa- bush. Governor Jackson re- tion meeting and submitted an ported he attended the October The board approved Presi- article titled “For $900 Million Garfield County Bar Associa- dent Poarch’s appointment of You Can Buy Your Way Out of tion meeting. Governor Kin- Bradley J. Brown, Tulsa, to the Death Penalty” for the bar slow reported he attended the complete the unexpired term of journal. Comanche County Bar Asso- Cesar Tavares. The term will ciation meeting. Governor expire Dec. 31, 2016. REPORT OF THE EXECUTIVE DIRECTOR Knighton reported he attended o the Cleveland County Bar Executive Director Williams Association reception for The Oklahoma Bar Association reported he attended the South- the Board of Governors and Board of Governors met at the ern Conference of Bar Presi- September Lawyers Helping Oklahoma Bar Center in Oklaho- dents meeting, budget hearing, Lawyers Assistance Program ma City on Oct. 23, 2015. Diversity Committee awards meeting. Governor Marshall REPORT OF THE dinner, monthly staff celebra- reported he attended the Cleve- PRESIDENT tion, Young Lawyers Division land County Bar Association board meeting and meetings on reception for the Board of Gov- President Poarch reported he the new association manage- ernors. Governor Porter report- participated in planning for the ment system. He also helped ed she attended the Cleveland Access to Justice Commission YLD members stuff backpacks County Bar Association month- panel discussion at the Annual and make deliveries as part ly luncheon meeting and the Meeting President’s Breakfast of the division’s community William J. Holloway Jr. Inn of and a telephone conference call service project. Court meeting. Governor Sain

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2375 reported he attended the Helping Lawyers Assistance calling all the OBA award win- McCurtain County Bar Associa- Program conducted a training ners within 24 hours of the tion luncheon, McCurtain session for lawyers working board’s final approval of Memorial Hospital Foundation with lawyers who need help. Awards Committee recommen- meeting and Cleveland County President Poarch reported the dations. He heard good com- Bar Association dinner. Gover- Diversity Committee awards ments from recipients. nor Stevens reported he attend- dinner was well attended. PROPOSED 2016 ed the Cleveland County Bar Governor Porter reported the OBA BUDGET Association reception for the Women in Law Committee at Board of Governors and the its meeting did a wrap up of Administration Director October Cleveland County Bar their recent conference and Combs reviewed the budget Association meeting. Governor planned a social event in executive summary, which Tucker reported he attended December. She said all the con- describes changes from the the Muskogee County Bar ference speakers received high previous year. Discussion fol- Association meeting, Cleveland marks from attendees. lowed. The budget includes an County Bar Association recep- REPORT OF THE increase in funding of public tion for the board, Oklahoma GENERAL COUNSEL education. President-Elect Association of Municipal Attor- Isaacs shared with the board neys annual meeting and General Counsel Hendryx his plan to work with the Women in Safe Homes Inc. reported the Professional courts to designate a Juror annual walk for domestic vio- Responsibility Commission did Appreciation Month in Oklaho- lence awareness. Governor not meet in September. A writ- ma. He wants people who Weedn, unable to attend the ten report of OBA disciplinary serve on juries to understand meeting, reported via email he matters for September was their role is vital to this coun- attended the Cleveland County submitted to the board for try’s constitutional process. The Bar Association reception for its review. board approved the proposed board members and the Ottawa budget and to submit it to the PROPOSED NEW MEMBER County Bar Association month- BENEFIT Oklahoma Supreme Court for ly meeting. its approval. BOARD LIAISON REPORTS Executive Director Williams NEXT MEETING reported changes were made to Governor Knighton reported a proposed member benefit The Board of Governors met during September the Law- agreement with Citrix, and the Nov. 4, 2015, in conjunction related Education Program held proposed agreement will be with the Annual Meeting. four Peaceful Resolutions for emailed soon to board mem- A summary of those actions Oklahoma Students training bers for a vote. The board will be published after the sessions for elementary and requested to see both the minutes are approved. The middle/high schools. The redline and final versions next board meeting will be at LRE coordinator will attend a of the agreement. 10 a.m. Friday, Dec. 11, 2015, at national meeting in Pennsylva- OBA AWARDS the Oklahoma Bar Center in nia. He said teachers are being Oklahoma City. surveyed about interest in a Governor Gotwals compli- Teacher of the Year Award. He mented President Poarch on also reported the Lawyers

2376 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 OKLAHOMA BAR FOUNDATION

2015 OBF Scholarship Recipients

Sheridan Lindley from the University of Oklahoma Col- lege of Law has been awarded the Maurice H. Merrill Memori- al Public Law Scholarship. She has a Bachelor’s degree in business administration, summa cum laude, economics and a minor in Spanish from OU. She is a member of the National Honor Society of Collegiate Scholars, Chi Omega Sorority, Pre-Law Society and Campus Activities Council Crew. Sheridan Lindley Anne Daniel “Law school and the work scholarship fund was created in uncles practice law. She involved can be mentally and 1968 through gifts in memory plans to pursue a career in emotionally exhausting, but the of Professor Merrill and was criminal law. financial burden it imposes has increased in size in 1984 to pro- caused me just as much stress,” “The OBF has always been vide an annual scholarship for Ms. Lindley said. “The Maurice supportive of law students in research in the field of public H. Merrill Scholarship helped the state of Oklahoma,” Ms. law. The Merrill fund is a to ease this burden, and I am Daniels said. “I am thankful permanent endowment that extremely grateful for being and grateful to be one of the provides for the award of schol- chosen as the recipient. I am the recipients of the OBF Scholar- arship funding annually to an first person in my family to ships, and look forward to OU law school student. pursue a career in the field of being an attorney in Oklahoma law, and I want to set a good OBF FELLOW beginning this spring.” example and meet the high SCHOLARSHIP Ms. Daniels has received the academic standards I have ANNE DANIEL following honors: TU faculty established for myself. The honor roll, dean’s honor roll scholarship helped me take University of Tulsa College of and board of advocates. one step closer toward achiev- Law student Anne Daniel ing these goals.” received the Oklahoma Bar The OBF Fellow Scholarship Foundation’s Fellow Scholar- was created in 2006 in celebra- Ms. Lindley has received the ship. She has a B.A. in English tion of the foundation’s 60th following honors: National literature from Texas Christian year of service. The OBF Merit Scholar, Byrd Scholar, University. She is the first place established the scholarship to Oklahoma All-State Scholar, award recipient in the Edge provide financial assistance to dean’s honor roll, president’s Law Firm Criminal Competi- law students currently enrolled honor roll and Beta Gamma tion and is the current editor in Oklahoma with a demon- Sigma at the Price College of for the University of Tulsa Law strated intent to practice law Business. Review. Ms. Daniel comes from in Oklahoma. This scholarship was named a long line of passionate attor- for Maurice H. Merrill, attorney neys, as both her parents, her and OU law professor. The grandfather and four of her

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2377 P.O. Box 53036

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2378 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 MEMBER BENEFIT Check out the perks of being an OBA member

• E-news • Fastcase • OBA-NET • Continuing Legal Education • Research links • Speakers Bureau • Oklahoma Bar Journal • Consumer information brochures • Young Lawyers Division • Office “health checks” • Title Exam Standards • Lending Library • Ethics Counsel • Lawyers Helping Lawyers • Insurance • Multiple member discounts

And that’s not all! For more member perks, visit www.okbar.org/members/members/benefits

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2379 YOUNG LAWYERS DIVISION

Another Successful Day of Service By Brandi N. Nowakowski

On Oct. 17, 2015, the YLD Oklahoma Food Bank, we held our annual Day of Ser- became aware of a need for vice project. This year, we “supplemental” packs. Many or decided to do a hunger pre- all of the schools we provided vention project for school backpacks to had some sort of children across the state. We backpack program in place for chose a backpack project that students in need; however, it would provide supplemental seemed that all could benefit backpacks for extended school from additional resources/pro- breaks, as opposed to the visions for these longer holiday “weekend backpacks” that are breaks, such as Thanksgiving generally provided. or Christmas. In speaking with the Regional Thankfully, Thunder Cares Food Bank and the Eastern graciously agreed to allow us to use the leftover backpacks that had been donated for Oklaho- The backpacks contained the ma’s Promise. Fire- Brandi Nowakowski shows off following products: Lake Grocery in one of the backbacks donated by Shawnee (of the Citi- Thunder Cares. n Shelf-stable milk and chocolate milk zen Potawatomi n Juice boxes Nation) was incredi- The packs were delivered to the bly helpful as well. following: n Granola bars They ordered all of 1) Garber Elementary – n Fruit grain bars the food for us from their suppliers and Garfield County n Cereal provided them to us 2) Calumet Elementary – n Cereal bars at wholesale cost! Canadian County Without the assis- n Oatmeal tance of Thunder 3) Boys and Girls Club of Nowata, serving Nowata n Peanut butter and cheese crackers Cares and FireLake, this project would not Public Schools – Nowata n Pre-packaged mixed fruit have been so success- County n Raisins ful! We were able to 4) Washington Elementary do so much more in Lawton – Comanche n Applesauce good thanks to their County generosity. n Pudding cups 5) Maud Elementary – Our board mem- n Cheez-Its Potta- watomie and Seminole bers packed approxi- Counties n Easy-Mac mately 200 Thunder backpacks, each con- 6) Shared Blessings in McAles- n Chef Boyardee beefaroni and taining food for about ter – to be distributed to ravioli pop-top microwave meals 1 five days. multiple schools

2380 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 The largest cit- and said there were three more ies and more children who needed to be metropolitan added to the program. The areas are more coordinator was concerned that likely to have the program was running low the benefit of on resources, but they added several nonprof- the children anyway. Thankful- it or charitable ly, we were able to fill that need organizations and provide additional resourc- and churches es to that school. It was perfect that are already timing, and I am so glad we serving that could help! need for their communities. 1. Shared Blessings serves roughly 700 kids at 18 different schools, though the exact num- The YLD stuffs backpacks for their Day of Service The rural areas ber of schools they were able to provide these backpack project. of Oklahoma backpacks for is not known. are less likely to When selecting schools, I have these resources, or as asked our board members to many of them, available. As suggest schools in their dis- another young lawyer noted, in tricts which could benefit from his small town, people come About The Author this project, and we considered together to address the needs of the percentage of students the community, but they have Ms. Nowa- receiving free or reduced fewer resources with which to kowski is an lunches, as that number is do so. attorney in indicative of need. Shawnee and At one of our recipient Further, I decided to select represents Dis- schools, the school administra- trict 8 on the schools located outside of the tor mentioned that the school Tulsa and OKC metro areas, YLD Board of backpack program coordinator Directors. primarily in rural Oklahoma. came to her a few days prior

On Thursday, Nov. 5, 2015, in coordination with the OBA Annual Meeting, the YLD presented their annual awards.

YLD Chair LeAnne McGill (left) presented the following awards: (from left) Bryon Will, Out- standing Officer; Carol Manning representing the OBA Communications Department, Friend of the YLD; April Moaning, Outstand- ing Committee Chair; Faye Rodgers, Outstanding Director; Stephanie Cox, YLD Fellow; and Renée DeMoss, YLD Fellow. YLD 2014 Chair Kaleb Henneigh assisted in the awards presentation.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2381 CALENDAR OF EVENTS

November

26-27 OBA Closed - Thanksgiving December

1 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146

3 Lawyers Helping Lawyers discussion group; 6 p.m.; 701 NW 13th St., Office of Tom Cummings, Oklahoma City; Contact Jeanne Snider 405-366-5423

4 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma OBA Licensed Legal Intern Committee meeting; City with teleconference; Contact Ken Morgan Stoner 3 p.m.; Oklahoma Bar Center, Oklahoma City with 405-705-2910 teleconference; Contact Candace G. Blalock 405-238-0143 9 OBA Women in Law Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact 16 OBA Indian Law Section meeting; 12 p.m.; Kimberly Hays 918-592-2800 Oklahoma Bar Center, Oklahoma City with teleconference; Contact Trisha Archer 918-619-9191 11 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact 17 OBA Professionalism Committee meeting; John Morris Williams 405-416-7000 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Patricia Podolec 405-760-3358 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with 18 OBA Professional Responsibility Commission teleconference; Contact Suzanne Heggy 405-556-9615 meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Gina Hendryx 405-416-7007 OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with telecon- 24-25 OBA Closed - Christmas ference; Contact Michelle K. Smith 405-759-2333

OBA Rules of Professional Conduct Committee January meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Paul B. Middleton 405-235-7600 1 OBA Closed - New Year’s Day 15 OBA Bench and Bar Committee meeting; 12 p.m.; 5 OBA Government and Administrative Law Oklahoma Bar Center, Oklahoma City with telecon- Section meeting; 4 p.m.; Oklahoma Bar Center, ference; Contact Judge David B. Lewis 405-556-9611 Oklahoma City; Contact John E. Miley 405-557-7146

OBA Diversity Committee meeting; 12 p.m.; 7 Lawyers Helping Lawyers discussion group; Oklahoma Bar Center, Oklahoma City; Contact Tiece I. 6 p.m.; 701 NW 13th St., Office of Tom Cummings, Dempsey 405-524-6395 Oklahoma City; Contact Jeanne Snider 405-366-5423

2382 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 22 OBA Lawyers Helping Lawyers Committee meeting; 12 p.m.; 406 S. Boulder, Ste. 432, Tulsa, Office of Hugh Hood; Contact Jeanne Snider 405-366-5423

28 OBA Professionalism Committee meeting 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Patricia Podolec 405-760-3358 February 2 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146

Lawyers Helping Lawyers discussion group; OBA Law-related Education Committee 4 8 6 p.m.; 701 NW 13th St., Office of Tom Cummings, meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma Oklahoma City; Contact Jeanne Snider 405-366-5423 City with teleconference; Contact Suzanne Heggy 405-556-9615 5 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma OBA Family Law Section meeting; 3 p.m.; City with teleconference; Contact Ken Morgan Stoner Oklahoma Bar Center, Oklahoma City with telecon- 405-705-2910 ference; Contact Michelle K. Smith 405-759-2333 OBA Women in Law Committee meeting; OBA Women in Law Committee meeting; 10 13 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Kimberly Hays 918-592-2800 teleconference; Contact Kimberly Hays 918-592-2800 OBA Law-related Education Committee OBA Board of Governors meeting; 2 p.m.; 12 14 meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma Teleconference; Contact John Morris Williams City with teleconference; Contact Suzanne Heggy 405-416-7000 405-556-9615 OBA Closed - Martin Luther King Day 18 OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with telecon- 20 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michelle K. Smith 405-759-2333 ference; Contact Trisha Archer 918-619-9191

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2383 FOR YOUR INFORMATION

OBA Member Resignations LHL Discussion Group Hosts December Meeting The following members have resigned as members of the association and notice is “Practice of Law and Spirituality” will be the hereby given of such resignation: topic of the Dec. 3 meeting of the Lawyers Helping Lawyers monthly discussion group. Ted Daniel Rossier Each meeting, always the first Thursday of each OBA No. 16041 month, is facilitated by committee members and 4008 Glasgow Dr. a licensed mental health professional. The Norman, OK 73072 group meets from 6 to 7:30 p.m. at the office of Adam Dale Shelton Tom Cummings, 701 N.W. 13th St. Oklahoma OBA No. 20841 City. There is no cost to attend and snacks will 1851 Bassett St., No. 510 be provided. RSVPs to Kim Reber, kimreber@ Denver, CO 80202 cabainc.com, are encouraged to ensure there is food for all. Janet Frye Steele OBA No. 31451 • Interested in forming a discussion group in 3801 Bridgeport Rd. Tulsa? Contact Hugh Hood: 918-747-4357. Norman, OK 73072 LAWYERS HELPING LAWYERS OBA Member Reinstatement ASSISTANCE PROGRAM The following OBA member suspended Call 24/7 — 800-364-7886 for nonpayment of dues or noncompliance with the Rules for Mandatory Continuing Legal Education has complied with the requirements for reinstatement, and notice is hereby given of such reinstatement: Aspiring Writers Take Note Mitchell Kenneth Coatney We want to feature your work on “The Back OBA No. 21066 Page.” Submit articles related to the practice 16224 Muirfield Place of law, or send us something humorous, Edmond, OK 73013 transforming or intriguing. Poetry is an option too. Send submissions no more than two double-spaced pages (or 1 1/4 single- spaced pages) to OBA Communications Connect With the OBA Through Director Carol Manning, [email protected]. Social Media Have you checked out the OBA Facebook page? It’s a great way to get updates and information about upcoming events and the Oklahoma legal community. Like our page at www.facebook.com/Oklahom- aBar Association. And be sure to follow @OklahomaBar on Twitter!

2384 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Hughes County Celebrates Long-time Bar Member

OBA member Victor Pryor of Holdenville was recently presented with a certificate and pin recognizing 50 years of service to the bar association by OBA Executive Director John Morris Williams. Many members of the local county bar association turned out for the occasion. The OBA congratulates all lawyers who are celebrat- ing milestone anniversaries in 2015!

Court Employees Recognized The Case Management Assist Team for the Bankruptcy Court for the Western District of Oklahoma was recently presented with a Director’s Award for Excellence in Court Operations by the Administrative Office of the U.S. Courts. The award was presented in recognition of the team’s development of CMA, now used by 37 bankruptcy courts and two district courts with other courts in the implementation stage. CMA works alongside the Case Management/Electronic Case Files System to distribute, organize, prioritize, and assign work for a case administrator, among other capabilities. Financial officers also may use it to monitor payments due and judges and clerks may use it to remain current on court filings. Team members are IT manager Scott Bellingham, administrative support analyst Annamarie Cooper, Bankruptcy Clerk of Court Grant Price, Chief Deputy Bankruptcy Clerk of Court Sheila Sewell, operations manager Penny Wallis and automation supervisor Ronn Folk.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2385 OBA Staff Members Earn Honors Melissa McLawhorn Houston Appointed Interim Labor Commissioner The OBA is very proud of two staff members who were recently presented Governor Mary Fallin has awards by professional organizations announced she will appoint with whom they are affiliated. Law-relat- Melissa McLawhorn Hous- ed Education Coordinator Jane McCon- ton as Oklahoma labor com- nell received the Mike Adkins Memorial missioner until January Friend of Social Studies Award from the 2019. Ms. Houston, who has Oklahoma Council for the Social Studies. been chief of staff and poli- The honor is given to an individual who cy adviser for Oklahoma has made numerous and exceptional Attorney General Scott contributions over an extended period Pruitt since 2011, will fill the of leadership in social studies education remaining term of former in the state of Oklahoma. Law Practice Labor Commissioner Mark Magazine has named OBA Management Costello, who died in Assistance Program Director Jim Cal- August. The commissioner of labor is responsible loway as the recipient of the Robert for the enforcement of labor laws that promote fair- Wilkins Award for Best Column for the ness and equity in the workforce, including state publication’s 2014-15 editorial year. wage laws, workers’ compensation compliance, state Occupational Safety and Health Administra- tion laws for public employers, child labor laws and various other duties. Ms. Houston is an experienced administrator with an extensive background in state government. Before serving as the attorney general’s chief of staff, she served for nine years (2002-2011) as the chief of staff for the Oklahoma Office of Homeland Security. Prior to that, she served as deputy director for the Oklahoma Sheriffs Association and as an attorney for the Oklahoma Truth in Sentencing Pol- icy Advisory Commission. She is a 1994 graduate of the OU College of Law.

Heroes Program Celebrates Fifth Anniversary On Veterans Day 2010, the OBA launched Oklahoma Lawyers for America’s Heroes to provide free legal advice and assistance to qualifying active duty service- men and women and veterans. As of this year, more than $2.7 million in legal services have been donated by Oklahoma lawyers through the Heroes program. Nearly 700 lawyer volunteers have participated and more than 3,600 heroes have received services under the program. A great need still exists for Oklahoma lawyers to volunteer for the program, especially in the area of family law. The mission is to offer one-on-one legal counsel to those members of the guard or reserve who are currently or have honorably served this nation who otherwise cannot afford or do not have access to the services they need. Please visit www.okbar.org/heroes to learn more about the program. To volunteer, contact Gisele Perryman at 405-416-7086 or email [email protected].

2386 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 BENCH & BAR BRIEFS

ship in the LCA is highly Hieronymus, Jones, Tucker selective and by invitation and Gable as an associate. only. Fellows are selected Her practice is concentrated based upon excellence and in civil defense litigation and accomplishment in litigation, she received her J.D. from the he International Munici- both at the trial and appellate TU College of Law in 2012. pal Lawyers Association levels, and superior ethical T loyd and Karla McAlister has announced Andrea Lynn reputation. He earned his J.D. have announced the addi- Chism as a member of its from Vanderbilt University L tion of two new partners to 2015 class of Local Govern- Law School in 1992. their firm, Brandon Baker ment Fellows. The program and Cara Nicklas. The firm was established in 1999 to will be known as McAlister, recognize attorneys as legal McAlister, Baker & Nicklas specialists in the field of local PLLC. Mr. Baker practices government law and to pro- primarily in the areas of mote competency in the field. business formation, business She earned her J.D. from the transactions, real estate OCU School of Law in 2007. transactions and oil and gas lenn Floyd was honored ableGotwals has an- transactions. He received his Gby the American College Gnounced that Andrea J.D. from the OU College of of Bond Counsel for his con- Pickryl and James M. Scears Law in 2006. Ms. Nicklas’ tributions to the college as a joined the firm’s Tulsa office. practice focuses on employ- founding fellow and former Ms. Pickryl’s primary focus ment law, civil and business president. He is a part of The will be transactional law. She litigation, probate and trust Floyd Law Firm of Norman earned her J.D. with honors litigation, guardianship and and graduated from the OU from the TU College of Law estate planning. She received College of Law in 1967. in 2015. Mr. Scears focuses his her J.D. from the OCU School practice on tax law, as well as of Law in 1990. arry Birdwell received estate and trust planning. He cAfee & Taft has Hthe Distinguished Alum- returns to Oklahoma after announced that Jenny ni Award given out annually practicing law in Zurich, M M. Odom and Kaitlyn E. by the OSU Alumni Associa- Switzerland. He graduated Schrick joined the firm. Ms. tion. The award recognizes from the OU College of Law Odom represents and coun- alumni who attain distinctive in 2012 and holds an LL.M. in sels clients in a broad range success in their chosen profes- taxation from New York Uni- of business transactions and sion, perform outstanding versity School of Law. services to their communities compliance matters with an and strive to support the herwood, McCormick & emphasis on issues affecting advancement of OSU. He SRobert has announced that the healthcare industry. She earned his J.D. from the OU Grant A. Carpenter joined graduated with honors from College of Law in 1975. the firm. His practice will the OU College of Law in include business litigation, 2015. Ms. Shrick is a transac- raig A. Fitzgerald has nonprofit law, personal injury tional lawyer whose practice Cbeen selected as a Litiga- and elder law. He graduated encompasses a broad range of tion Counsel of America fel- from the OU College of Law corporate and business mat- low. The LCA is a trial lawyer in 2015. ters. She earned her J.D. with honorary society composed of honors from the OU College auren M. Marciano has less than one-half of 1 percent of Law in 2015. of American lawyers. Fellow- Ljoined the firm of Rhodes,

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2387 rowe & Dunlevy recently tephen DeGuisti has been versus Common Law” and Cannounced attorney Snamed senior vice presi- “International Trade Issues.” Louis W. Utsch joined the dent and general counsel of orrie Corbin Bamford firm as a director in the Okla- the BP Lower 48 Onshore returned as a guest homa City office. He is a business in Houston, Texas. L lecturer at the 2015 Society member of the firm’s Taxation He was previously with for Corporate Compliance Practice Group. Mr. Utsch has PostRock Energy Corp. in and Ethics’ Annual Confer- concentrated his career in the Oklahoma City for five years. ence in Las Vegas, Nevada. practice of energy tax law and Before that he was with She presented “How to tax consulting. He received Crowe & Dunlevy for 25 Attract, Empower and Retain his J.D. from the University years. He earned his J.D. Ethical Employees.” of Virginia in 1993. from the OU College of Law in 1983. Douglas Stump recently egal Aid Services of Okla- spoke on “Unusual Ad- homa Inc. welcomes attor- he Fellers Snider law firm T. L missions at the Border and neys Stephanie A. Hansen recently welcomed associ- T Beyond” at the 2015 Rocky and Daniel A. Sanders to the ate attorney Michael A. Mountain Fall Conference McAlester Legal Aid office. Fagan to the firm. He will be hosted by the Colorado Chap- Ms. Hansen will focus on based out of the firm’s Okla- ter of the American Immigra- family law matters. She homa City office and will tion Lawyers Association. He earned her J.D. from Regent focus on workers’ compensa- was also a featured speaker at University in Virginia in 2015. tion law as well as general the 2015 AILA National Fall Mr. Sanders will focus civil litigation. He earned his Conference in Minneapolis primarily on social security J.D. from the University of where he presented materials benefits and received his J.D. Missouri-Kansas City School on “I-601A Provisional Waiv- from the OCU School of Law of Law in 2007. ers and Practical Guidance for in 2002. a Successful Application.” he law firm of Norman ryce P. Harp recently Wohlgemuth Chandler T spoke at the 2015 Annual Jeter Barnett & Ray has B Conference of the Missouri announced the addition of Credit Association. His presen- Barrett Powers and Alex tation “ ‘To Be or Not to Be’ in Telarik. Both Mr. Powers Compliance with Oklahoma’s and Mr. Telarik will focus on Pre-Lien Notice Requirements” complex civil litigation. Mr. urtis Craig and Chris discussed the costly conse- Powers earned his J.D. with Paul presented a program C quences of failing to adhere to honors from the TU College at the 2015 Association of Oil the notice requirements set of Law in 2015. Mr. Telarik Pipe Lines’ Annual Business forth in Title 42. also earned his J.D. in 2015 Conference in Atlanta, Geor- from Wake Forest University gia, on “Comprehensive How to place an announce- School of Law. Compliance Programs-Issues ment: The Oklahoma Bar Journal and Tools.” The presentation welcomes short articles or ulmer Group PLLC covered challenges faced by news items about OBA mem- Fannounces the opening counsel in dealing with com- bers and upcoming meetings. of their new office located in pliance in a highly regulated If you are an OBA member and the historic Buick Building in environment, and the tools you’ve moved, become a partner, hired an associate, taken Automobile Alley, 1101 N. they use to help their organi- on a partner, received a promo- Broadway, Oklahoma City, zations stay in compliance Oklahoma 73103. They can tion or an award, or given a and address issues of talk or speech with statewide be reached by telephone at noncompliance. 405-510-0077. Fulmer Group or national stature, we’d like represents individuals and rofessor Marty Ludlum to hear from you. Sections, small businesses in insurance recently spoke to several committees, and county bar P associations are encouraged bad faith and class action liti- classes at Chien Hsin Univer- to submit short stories about gation, as well as personal sity in Jhongli, Taiwan. His upcoming or recent activities. injury matters. presentations were “Civil Honors bestowed by other

2388 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 publications (e.g., Super Law- editing, and printed as space 405-416-7084 yers, Best Lawyers, etc.) will not permits. [email protected] be accepted as announcements. Submit news items via email to: (Oklahoma-based publications Articles for the Jan. 17 issue must are the exception.) Information Mackenzie McDaniel be received by Dec. 14. selected for publication is Communications Dept. printed at no cost, subject to Oklahoma Bar Association

IN MEMORIAM

ichard E. Dixon of Dun- practice, he was Tulsa County versity of Missouri where he Rcan died Sept. 16. He was Bar Association past presi- received his J.D. in 1951. He born July 13, 1936, and gradu- dent, which also recognized began his legal career in Mis- ated from high school in Enid. him as Outstanding Senior souri before returning to He graduated from OU with Lawyer and awarded him the Bartlesville where he started his bachelor’s degree and Lifetime Achievement Award. his own law firm. He was a earned the rank of first lieu- He served as an Oklahoma 64-year member of the Okla- tenant through his ROTC Bar Association board mem- homa Bar Association, an studies. He served in the U.S. ber and was a recipient of the Oklahoma Bar Foundation Army for two years and Neil E. Bogan Award for Pro- fellow, served on the Green remained active in the Army fessionalism. He also served Country Village Retirement Reserves for many years. He 26 years on the Oklahoma Community board, the received his J.D. from the OU Attorneys Mutual Insurance Bartlesville Community Cen- College of Law in 1964 and Company board and was a ter board and the Family went to work in the trust sustaining fellow of the Okla- Healthcare Clinic board. He department of City National homa Bar Foundation. He was active in the Oklahoma Bank in Oklahoma City. In served many civic and chari- Democratic Party and many 1968, he moved to Duncan table organizations, most other community and charita- and began working as vice notably nine years on the ble organizations. He enjoyed president and trust officer at Tulsa County Excise and spending time with his wife, Security National Bank Trust Equalization Board and the children, family and friends Company. He served as the Alzheimer’s Association of and is survived by his daugh- Oklahoma Bankers Associa- Oklahoma. ter and OBA member Susan B. tion director and president, Shields. Memorial contribu- ichard Amatucci of Tulsa treasurer of Centennial Dun- tions may be made in his died Aug. 16. He was can Inc, Duncan Youth Coun- R name to St. Jude’s Children’s born May 8, 1934, and gradu- cil and Duncan Industrial Research Hospital, 501 St. ated from Holy Family Cathe- Foundation director and trea- Jude Place, Memphis, TN dral School. After serving in surer, First Oklahoma Life 38105 or to the U.S. Holocaust the U.S. Army, he received his Insurance Co. director and Memorial Museum, 100 Raoul J.D. from the TU College of president of the DHS Booster Wallenberg Pl, SW, Washing- Law and was a practicing Club. Memorial contributions ton, D.C. 20024. may be made in his name to attorney for 50 years. reg Jenkins of Caney the Communities Foundation llen Hoffman Stocker of died Sept. 24. He was of Oklahoma, Duncan Region- Bartlesville died Oct. 6. G A born Dec. 23, 1962, and al Hospital Foundation, Little He was born April 29, 1926, earned his bachelor’s degree Lighthouse or to a charity of and graduated from College from Southeastern Oklahoma your choice. High School in 1944. After University in accounting. He Pearl Harbor, he enlisted ames Edward Poe of Tulsa received his J.D. from the OU in the Navy and served in Jdied Sept. 26. He was born College of Law in 1988. He World War II as a radio tech- Feb. 21, 1935, in Garfield, served in the district attor- nician aboard the U.S.S. Arkansas, and received his ney’s office for more than 25 Tutuila in the Pacific. Follow- J.D. from the TU College of years in the criminal division ing completion of his military Law. During his 55 years of of Atoka, Bryan and Coal service he attended the Uni-

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2389 counties. He was a member of ant at Fort Benjamin Harri- Village Baptist Church in the Harmony Baptist Church son in Indianapolis, Indiana, Oklahoma City. He was also for more than 20 years and a for two years, he attended the an active member of the Okla- youth Sunday School teacher OCU School of Law where he homa Toastmasters Club, for 15 years. He enjoyed col- received in J.D. in 1966. He Rotary International, Kiwanis lecting comic books, playing joined his father-in-law in his International and the BPOE. fantasy baseball, watching OU law firm in El Reno. He was a Memorial contributions may football and playing video member of the American Bar be made in his name to BritVil games with his son. Foundation, American Col- Community Food Pantry, lege of Trust and Estate Coun- Oklahoma Medical Research ack E. Phillips of Bartles- sel, American College of Trial Foundation or a charity of ville died Sept. 23. He was J Lawyers and the Canadian your choosing. born Aug. 18, 1938, and grad- County Bar Association. He uth E. Moran uated from Duke University was named an El Reno Distin- of Oklaho- with a bachelor’s degree in guished Alumni and was a Rma City died Oct. 8. She chemistry. In 1961, he worked founder of American Heritage was born Sept. 8, 1923, and in the Washington, D.C. Pat- Bank. Active in his communi- graduated from Stillwater ent Office for two years which ty, he served on the governing High School. She received her led to his decision to become boards of Oklahoma Medical J.D. from the OU College of an attorney. He received his Research Foundation and Law in 1945 and worked for J.D. from George Washington Oklahoma City University. He the State of Oklahoma at the University. In 1964, he relocat- was a former member of the State Land Office. In 1949, ed to Bartlesville where he El Reno City Council and the she and her husband started began working for Phillips Park View Hospital Authority the law firm of Moran and Petroleum Co. in its patent board of trustees. Memorial Moran. She was a member of division. He later became contributions may be made in the Oklahoma Genealogical associate general patent coun- his name to Oklahoma Medi- Society board, Oklahoma His- sel and trademark counsel cal Research Foundation torical Society board of direc- and remained with Phillips (OMRF) at 825 NE 13th St, tors and was appointed by Petroleum Co. until his re- Oklahoma City, OK 73104. Gov. George Nigh to serve as tirement in 1996. He was a a member of the Oklahoma member of the First United etired Judge James P. Historical Records Advisory Methodist Church and served RGarrett died Oct. 16. He Board. In recognition of her on the church’s board of trust- was born Jan. 5, 1922, and outstanding contributions to ees and memorial committee. graduated from Mangum genealogical research in the Other activities included serv- High School and received his state of Oklahoma the Ruth ing on the YMCA board of undergraduate degree from Eager Moran Chair was creat- directors, the Board of Family OU. After graduation, he ed by the Oklahoma Histori- Crisis & Counseling and the enlisted and served his coun- cal Society and she was the Native American Medical try as lieutenant in the U.S. first recipient of the award. Clinic board. Memorial contri- Navy during World War II. She was also recognized as butions may be made in his He was part of the Naval one of the pioneers of women name to Project Transforma- forces that invaded Norman- lawyers in Oklahoma. tion, c/o Bartlesville First dy during the D-Day Inva- ichard Brooks O’Connor Church, 4715 Price Rd., sion. When he returned from of Oklahoma City died Bartlesville, OK 74006 or to duty, he re-ceived his J.D. R Oct. 7. He was born Sept. 9, The Journey Home, 3406 S.E. from the OU School of Law. 1929, and graduated from Kentucky, Bartlesville, OK His professional career Wentworth Military Academy 74006. spanned several decades as an assistant district attorney in and The University of Mis- ames Carter “Jim” Bass He joined the Navy of Carter County, assistant attor- souri. and received his wings in JEl Reno died Sept. 26. He ney general and practicing 1955, when he was selected was born July 3, 1938, and private law. He was a member to serve as one of 14 mem- graduated from El Reno High and deacon at the First Baptist After serving bers of Fighter Squadron School in 1956. Church in Man-gum and a in the Army as a first lieuten- VF-11, the Red Rippers, the member of the

2390 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Navy’s oldest continuously Church or a charity of your National Council on Crime active fighter squadron. After choice. and Delinquency state chair- surviving many dangerous man and as a hearings judge ohn D. Chiaf Sr. of Oklaho- missions, he returned to the for the Oklahoma Real Estate ma City died Sept. 17. He United States and enrolled J Commission. He was the was born Aug. 1, 1922, in at the OCU School of Law organizing attorney for new Brooklyn, New York, where where he received his J.D. He charters for five state commu- he quit school at the age of opened his law office, concen- nity banks and authored nine and went to work as a trating in aviation law. He numerous articles for the pharmacist assistant to help was a prolific reader of all Law Review and the suspense support his family during the subject matter from philoso- novel Politics Money and depression. He served in the phy to history, was an avid Drugs. He was an avid pilot, Army Air Corps during sailor and loved driving scuba diver and snow skier. WWII and after his discharge imported sports cars. Memorial contributions may moved to Oklahoma City be made in his name to St. arry C. Marberry of where he obtained his GED Gregory’s University, c/o Oklahoma City died and received a J.D. from the H Marketing and Development Sept. 11. He was born May 4, OCU School of Law in 1952. Dept., 1900 W MacArthur St, 1920, and attended Southern He practiced law for more Shawnee, OK 74804. Illinois University. In 1943, he than 50 years, with an undy- was called to active duty in ing and never-ending passion homas S. Crewson of the Army Air Corps and for helping those in need. TTulsa died Oct. 14. He was served as a weather observer Memorial contributions may born Oct. 13, 1932, and served for three years in Scotland be made in his name to the in the U.S. Army where he and France. After WWII he Alzheimer’s Association- attained the rank of second attended law school and Oklahoma Chapter. lieutenant. He earned his J.D. began practicing in oil and from the TU College of Law erry D. Sokolosky of Okla- gas law. His practice spanned and was a member of the homa City died Sept. 27. He more than 50 years. He was J OBA for more than 50 years. was born April 12, 1937, and active in politics and helped He served as an attorney in received his J.D. from the OU found the young Republican private practice, a municipal College of Law in 1963. He Party and served as Oklaho- court judge for the City of was a partner with the firm ma Republican Party chair- Tulsa, a Tulsa County juvenile Able Musser Sokolosky and man in 1960. He enjoyed play- court referee and as a state Clark for decades. He was ing golf at Quail Creek Coun- district court judge and chief elected to the Oklahoma try Club, playing bridge, judge of the Tulsa County House of Representatives in reading mysteries and travel- Juvenile Court. He was active 1964 representing the 9th Dis- ling. Memorial contributions in Boy Scouts of America, trict until 1968. President may be made in his name to Kappa Sigma Fraternity and Carter appointed him to the Westminster Presbyterian the Tulsa Ski Club. Judicial Selection Committee and he also served as the

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2391 OBA Exclusive

color lithograph • 11” x 15” • to view in color see www.okbar.org • $25 for unsigned print • $45 for signed print, plus $8.55 certified mail costs (no mailing charges if picked up at Oklahoma Bar Center)

Name ______Make check payable to the OBA and mail entire page to: OBA, P.O. Box 53036 OBA #______Oklahoma City, OK 73152-3036 For p Visa p Master Card p AMEX Street Address ______p Discover Card City______State_____ Zip ______Fax: (405) 416-7001 Credit Card # ______unsigned print(s) @ $25 each $ ______Exp. Date ______signed print(s) @ $45 each $ ______certified mail* @ $8.55 $ ______Authorized Signature

(*no mailing charges if picked Total $ ______up at Oklahoma Bar Center) Questions: call Debbie Brink, (405) 416-7014; (800) 522-8065 or email [email protected]

2392 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 WHAT’S ONLINE Practice Make your gratitude workday easier One of the best ways to lower stress is Let’s be honest — sometimes work can be to practice gratitude; and with Thanksgiving daunting. If you’re feeling a little run down just around the corner, now is the perfect or burnt out (or even before that happens), time to reflect. Here are nine tips for cultivating try these tips on making your workday a gratitude. little simpler.

goo.gl/LWurPg

www.unstuck.com/gratitude.html Be an active Find your voice citizen …your social media voice, that is! Attorney Were you inspired by our Annual Meeting at Work is at it again with some great tips on Luncheon speaker, Eric Liu, to get out and be a enhancing your law practice. This time, it’s part of your community? Check out his Citizen about finding your social media voice and University Facebook page for some great infor- audience so you may gain valuable interac- mation on how to become more active! tion with clients and clients-to-be!

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EXPERT WITNESS – ENERGY. EnEx Energy Advisors Space located in Boulder Towers at 1437 S. Boulder is a team of seasoned energy professionals (engineers Ave, Suite 1080, Tulsa, OK. Space includes two confer- and lawyers) possessing broad experience in all aspects ence rooms, kitchen, reception area, security and free of oil & gas (production, mid-stream and transporta- parking. $1,000 per month. Contact Robert Williams at tion) and power generation and asset management. 918-749-5566 or [email protected]. Our team has prior expert witness testimony and is ca- pable of assisting with many different aspects of litiga- LUXURY OFFICE SPACE - Four offices for lease, $670, tion. Visit our website at www.exadvisors.com or call $690 furnished and two at $870 in the Esperanza Office 844-281-ENEX (3639). Park near NW 150th and May in OKC. Lease includes: Fully furnished reception area; receptionist; conference BRIEF WRITING, APPEALS, RESEARCH AND DIS- room; complete kitchen; fax; high-speed internet; COVERY SUPPORT. Eighteen years experience in civil building security; and, free parking. Please contact litigation. Backed by established firm. Neil D. Van Dal- Gregg Renegar at 405-285-8118. sem, Taylor, Ryan, Minton, Van Dalsem & Williams PC, 918-749-5566, [email protected]. EXECUTIVE OFFICE SUITE. North Classen Boule-

vard. Furnished. Rent includes parking and receptionist. Call Kari 405-843-9923.

2394 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 OFFICE SPACE POSITIONS AVAILABLE

GREAT OFFICE SPACE FOR LEASE formerly occu- NATIONWIDE LAW FIRM SEEKS JUNIOR ASSOCI-

pied by a state agency. 1500 sq ft which includes 4 of- ATE with 0-3 years experience. Candidates must be fices, built in reception area, conference room, coffee self-motivated and detail-oriented. Competitive com- bar and document storage area. Centrally located in pensation package. Please send résumé and cover let- OKC across the street from the highway patrol. 201 NE ter to Klepper Law Firm, attn.: Tim, PO Box 271320 38th Terr #3. Please call Jacqueline at 405 787-3030 for OKC, OK 73137. more information. MJH Properties. PREMIUM EDMOND OFFICE SPACE FOR LEASE IN MAKE A DIFFERENCE

LAW FIRM BUILDING. Lease includes parking, inter- Do you want a fulfilling career where you can really net, conference room use, kitchen, wifi, $800 month. make a difference in the lives of people? Are you fer- Located west side of Boulevard a mile north of the Kil- vent about equal justice? Does a program with a pur- patrick Turnpike. Contact us at 405-285-8588 to sched- pose motivate you? Legal Aid Services of Oklahoma ule a showing. Inc. (LASO) is searching for an attorney for its Ard- more Law Office. OFFICE SHARE We are a statewide, civil law firm providing legal ser- ENID, OK ATTORNEY SEEKS ATTORNEY FOR OF- vices to the impoverished and senior population of Oklahoma. With twenty-three offices and a staff of

FICE SHARING. No experience required. Negotiable rent. Copier/fax machine, Internet, supplies and staff 155+, we are committed to the mission of equal justice. are included in rent. Case overflow referrals available. Ardmore is located south of Oklahoma City metro Experienced attorney available for assistance. Please just off of I-35 and is half way between Oklahoma contact Russell Singleton at 580-234-6000. City and Dallas. Ardmore is a progressive, attractive city bustling with activity. Founded before statehood, SHARE OFFICE SPACE IN OIL CENTER WEST with its history is diverse and rich. Ardmore was born three attorneys. Includes conference room, reception, with the establishment of the Santa Fe Railroad in copier and fax. Contact: [email protected]. 1887 while Oklahoma was still Indian Territory. Ini- tially, the community’s roots were agricultural with POSITIONS AVAILABLE cotton as the primary crop. At one point, it boasted the largest inland cotton market in the United States. NORMAN LAW FIRM IS SEEKING sharp, motivated This was the beginning of a city destined to become attorneys for fast-paced transactional work. Members one of the premiere towns in the state of Oklahoma. of our growing firm enjoy a team atmosphere and an The successful individual will possess a passion for energetic environment. Attorneys will be part of a cre- justice and empathy for impoverished individuals; be ative process in solving tax cases, handle an assigned computer literate and willing to learn and contribute caseload, and will be assisted by an experienced support to a positive work environment. In return, the em- staff. Our firm offers health insurance benefits, paid va- ployee receives a great benefit package including cation, paid personal days, and a 401K matching pro- paid health, dental, life insurance plan, a pension, gram. Applicants need to be admitted to practice law in and generous leave benefits. Additionally, LASO Oklahoma. No tax experience necessary. Submit cover offers a great work environment and educational/ letter and résumé to [email protected]. career opportunities. Seeking exceptionally qualified LAWYERS AND LAW To start making a difference, complete our applica-

STUDENTS who have a desire to LEAD, be CHAL- tion and submit it to Legal Aid Services of Oklahoma. LENGED and gain extensive court room knowledge and experience while serving as a Marine Officer and The online application can be found: JUDGE ADVOCATE GENERAL. Full time and part https://legalaidokemployment.wufoo.com/forms/ time Officer commissioning opportunities. JAG BO- z7x4z5/ NUS and FINANCIAL AID for law school available. Print application Please call the Marine Officer Selection Team at http://www.legalaidok.org/documents/388541 405-447-4809 for more information. Employment_Application_Revised_10.2008.pdf OKLAHOMA TITLE ATTORNEY - EDMOND AREA. Legal Aid is an Equal Opportunity/ Affirmative Action Employer.

Red Stone Resources, LLC specializes in acquiring oil and gas minerals. We are looking for a Licensed Okla- homa Attorney to perform courthouse title examina- OKC AV RATED LAW FIRM seeking associate with ex-

tion. Responsibilities will include, but not be limited cellent litigation, research, and writing skills, 1-5 years’ to: efficiently reviewing and examining title research, experience for general civil/commercial defense identifying title defects and completing curative ac- practice, health care law. Must have solid litigation tions as required. MUST have experience and be well experience for all phases of Pretrial discovery and versed in Oil and Gas Law in Oklahoma. Please email Trial experience with excellent research and writing résumé to [email protected] or sebastian. skills. Submit a confidential résumé with references, [email protected] or fax to 405-562-1208. writing sample and salary requirements to “Box E,” OBA PO Box 53036, OKC 73152.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2395 POSITIONS AVAILABLE POSITIONS AVAILABLE FULL SERVICE, AV-RATED, DOWNTOWN TULSA

LAW FIRM seeks associate attorney with 3 - 6 years’ MAKE A DIFFERENCE AS A commercial litigation experience. Solid deposition and CIVIL ATTORNEY trial experience is a must. Our firm offers a competitive salary and benefits, with bonus opportunity. Submit “This nation was founded by men of many nations and résumé and references to “Box P,” Oklahoma Bar As- backgrounds. It was founded on the principle that all men sociation; PO Box 53036; Oklahoma City, OK 73152. are created equal, and that the rights of every man are di- minished when the rights of one man are threatened …” THE OKLAHOMA BAR ASSOCIATION HEROES pro- John F. Kennedy gram is looking for several volunteer attorneys. The Do you want to make a real difference in the lives of need for FAMILY LAW ATTORNEYS is critical, but at- people? Are you fervent about equal justice? Legal torneys from all practice areas are needed. All ages, all Aid Services of Oklahoma (LASO) is a nonprofit law counties. Gain invaluable experience, or mentor a firm dedicated to the civil legal needs of low-income young attorney, while helping someone in need. For persons. If you are passionate about poverty law, more information or to sign up, contact Gisele Perry- LASO is the place for you, offering opportunities to man, 405-416-7086 or [email protected]. make a difference. We have 22 law offices across Okla- GRAVES McLAIN PLLC, a Tulsa personal injury law homa, and we are looking for passionate attorneys.

firm is seeking an OFFICE MANAGER to oversee HR LASO offers a competitive salary and a generous matters, insurance, bookkeeping with QuickBooks, benefits package, including health, dental, life, pen- and marketing and employee oversight. Position re- sion and an LRAP. Additionally, LASO offers a great quires experience in management as law office admin- work environment and educational/career oppor- istrator. Complete benefits package with 401(k), Profit tunities. Sharing, and Medical Insurance. Salary commensurate The online application can be found: with experience. Please send résumé via email to dan@ https://legalaidokemployment.wufoo.com/forms/ gravesmclain.com. z7x4z5/ GROWING AV RATED DOWNTOWN OKLAHOMA Legal Aid is an Equal Opportunity/

CITY LAW FIRM seeks an attorney with 3-5 years of Affirmative Action Employer experience in commercial litigation and transactions. Oil and gas and administrative law experience a plus. FAMILY LAW FIRM SEEKS ATTORNEY with mini- Compensation DOE. Great benefits and friendly atmo-

mum one year’s experience. Résumé; writing sample sphere. Submit confidential résumé, references, writing and two references required. Mail to “Box CD,” Okla- sample and salary requirements to OklahomaCity homa Bar Association, PO Box 53036, Oklahoma City, [email protected]. OK 73152. LITIGATION ATTORNEY NEEDED WITH 3+ YEARS CURRENTLY SEEKING LITIGATION ATTORNEY

OF EXPERIENCE for AV-rated mid-sized NW OKC

AND . LEGAL ASSISTANT with at least 2 years litiga- law firm to help with litigation concerning oil & gas ti- tion experience needed to assist Enid Law Firm with tles and real property titles, and probates. Send cover busy civil & criminal litigation/trial practice. Send letter and résumé to “Box S,” Oklahoma Bar Associa- résumé, with references to: PO Box 5188, Enid, Okla- tion; PO Box 53036; Oklahoma City, OK 73152. homa 73702. Fax to 580-233-4443 or Email to: eric@ COFFEY, SENGER & MCDANIEL, PLLC seeks a re- ericnedwardslaw.com. search and writing attorney with 4 to 7 years of experi- THE OKLAHOMA ATTORNEY GENERAL’S OFFICE ence. Will also hire on a contract basis. Please submit

is seeking an attorney for the Criminal Appeals Unit. résumé and writing sample to [email protected]. The Criminal Appeals Unit represents the state in the SOUTH OKC FIRM with a very busy and diverse prac- criminal appeals process to ensure that the decisions

tice seeks an attorney that is motivated and has exper- rendered by judges and juries are upheld in the appellate tise to practice in family law, estate planning, wills, courts. The successful candidate will be responsible for trusts, and bankruptcy. Other opportunities within the representing the State in criminal appellate cases before firm include, briefing, general litigation work (deposi- the Oklahoma Court of Criminal Appeals and represent- tions, client prep), and assisting with employment re- ing prison wardens in federal habeas actions. Applicants lated discrimination cases. If interested please send a should have strong research and writing skills and ac- résumé: Attention Office Manager to PO Box 890420 complished oral advocacy skills. Applicants must be a OKC, OK 73189. licensed attorney in the State of Oklahoma with zero to three years of experience in the practice of law. A writing GRAVES McLAIN PLLC, a Tulsa personal injury law sample must accompany resume to be considered. Excel-

firm, seeks an ASSOCIATE ATTORNEY with 2-5 year lent benefits. Salary is commensurate with experience. experience in civil litigation. Salary commensurate EOE. Send résumé and a writing sample to resumes@ with experience. Complete benefits package with oag.ok.gov. 401(k), Profit Sharing, and Medical Insurance. Please send résumé via email to [email protected].

2396 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 POSITIONS AVAILABLE POSITIONS AVAILABLE IN-HOUSE TRANSACTIONAL ATTORNEY. Estab- MAKE A DIFFERENCE AS THE ATTORNEY lished, stable, and growing corporation headquartered for a Domestic Violence Survivor in Oklahoma City is seeking a transactional attorney Do you want to ensure that survivors of domestic with one to three years’ of experience for a staff counsel violence obtain justice and an end to violence in position in its Real Estate Department. This full-time their lives for themselves and their children? Are position will work closely with other members of the you fervent about equal justice? Legal Aid Services Real Estate Department and provide legal representa- of Oklahoma (LASO) is a nonprofit law firm dedi- tion and counsel to management, business personnel, cated to the civil legal needs of low-income persons. and affiliate companies primarily in the areas of com- If you are passionate about advocating for the rights mercial leasing, real estate acquisitions and commercial of domestic violence survivors, LASO is the place transactions. The ideal candidate will possess a posi- for you, offering opportunities to make a difference tive attitude, initiative, excellent interpersonal skills, and to be part of a dedicated team. LASO has 22 law and the ability to work effectively in a team environ- offices across Oklahoma, and LASO has a rare open- ment. A Juris Doctor with a license in good standing to ing for a passionate attorney to represent domestic practice law is required. The company offers excellent violence survivors in LASO’s Oklahoma City Law benefits and values a positive work/life balance. To be Office. The successful candidate will have 3+ years considered for this position, applicants must provide a of experience in the practice of Family Law, with cover letter describing the applicant’s particular inter- meaningful experience in all aspects of representing est in the position, salary requirements, and a current survivors of domestic violence. résumé to Susan Walker at susan.walker@hobbylobby. com by November 30, 2015. LASO offers a competitive salary and a very generous benefits package, including health, dental, life, CHILD SUPPORT SERVICES, a division of the Okla-

pension, liberal paid time off and loan assistance homa Department of Human Services. DIRECTOR of repayment. Additionally, LASO offers a great work Child Support Services. The Oklahoma Department of environment and educational/career opportunities. Human Services (DHS) is seeking a full-time unclassi- The online application can be found: fied Director of Child Support Services (CSS), with of- https://legalaidokemployment.wufoo.com/ fices in Oklahoma City, Oklahoma. DHS is seeking an forms/z7x4z5/ experienced executive to lead, direct and coordinate a diverse and dynamic program division. The Director of Website CSS must be able to lead and manage a large statewide www.legalaidok.org child support enforcement division, motivate employ- Legal Aid is an Equal Opportunity/ ees to accomplish organizational objectives and super- Affirmative Action Employer vise high-level managers. The Director of CSS must have sound ethical business judgment and be able STEIDLEY & NEAL, PLLC, is searching for an associ- solve complex and diverse issues involving program administration, employees, clients, customers and state ate . attorney with excellent research and writing experience for its’ Tulsa office. Competitive salary and other and federal partners to achieve expectations of excel- benefits commensurate with level of experience. Looking lence in service delivery to the citizens of Oklahoma. for a motivated research and writing candidate interest- The successful candidate will coordinate multiple pri- ed in civil litigation, with an emphasis in insurance de- orities across program lines, analyze state and federal fense. Would consider hiring on a contract basis. Appli- law and regulations and develop efficient policies, cations will be kept in strict confidence. Send resume and practices and plans. The Director of CSS must have su- writing sample to Steidley & Neal, located in CityPlex perior oral and written communication skills. DHS pre- Towers, 53rd Floor, 2448 E. 81st St., Tulsa, OK, 74137, fers candidates with a Juris Doctorate or Master’s de- attention Dwain Witt, Administrator. gree with eight years professional level experience in legal management, human services or closely related OKLAHOMA CITY LAW FIRM IS SEEKING AN ES- work, including four years in an administrative or su-

TABLISHED . ATTORNEY with significant experience pervisory capacity: or an equivalent combination of with property and casualty insurance matters, including education and experience. To apply, please visit www. coverage litigation in state and federal court. Writing okdhs.org/careers. Complete the online application samples required. Send resume and writing samples to and submit through Human Capital Management “Box X,” Oklahoma Bar Association, PO Box 53036, (HCM). Applications must be received no later than Oklahoma City, OK 73152. 11:59 p.m. on December 4, 2015. For information on COFFEY, SENGER & McDANIEL, PLLC seeks a litiga- how to apply for this employment opportunity, please contact Andrea Paulk-McKeown at 405-521-6395, or by tion attorney with 3 to 7 years of experience for their South Tulsa and/or Oklahoma City office. Trucking email at [email protected]. THE litigation experience is preferred. Please submit résu- STATE OF OKLAHOMA IS AN EQUAL OPPORTU- mé and writing sample to [email protected]. NITY EMPLOYER.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2397 POSITIONS AVAILABLE POSITIONS AVAILABLE

THE NATIONAL CHRISTIAN FOUNDATION HEART- STEIDLEY & NEAL, PLLC, seeks an associate attorney

LAND is seeking an attorney to fill the role of Vice for its McAlester office to assist in civil litigation. This President of Outreach. This role will be based in Okla- position primarily involves assisting in civil rights and homa City, OK. This person will have strong relational general insurance defense matters, including some re- skills, public speaking and writing skills. A strong com- search and writing, discovery, taking depositions and ponent of this role will be to build relationships in the trials. Competitive salary and other benefits commen- local community to grow donor advised funds and surate with level of experience. Would consider recent non-liquid gifting in the community. The National graduates. Please submit a resume and salary require- Christian Foundation Heartland is an affiliate of NCF, ments to Steidley & Neal, P. O. Box 1165, McAlester, the 12th largest charity in the country and the largest OK, 74502, attention Dwain Witt, Administrator. Christian grant making organization in the country. Please email an initial inquiry with resume and 3 refer- CLASSIFIED INFORMATION ences to Rick McGlocklin at rmcglocklin@nationalchristian.com.— Rick McGlocklin COO/CFO, Nation- Please note: prices will increase Jan. 1, 2016. Visit www.okbar. al Christian Foundation Heartland; 706 N. Lindenwood org/members/barjournal/advertising.aspx for 2016 rates. Dr., Olathe, KS 66062; rmcglocklin@nationalchristian. com; 913-310-0279. REGULAR CLASSIFIED ADS: $1 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box word ESTABLISHED LAW FIRM IN TULSA IS LOOKING count must include “Box ___,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.”

TO HIRE AN ASSOCIATE ATTORNEY or Law Student who has experience/knowledge in Personal Injury DISPLAY CLASSIFIED ADS: Bold headline, centered, border (car/motorcycle wrecks, etc.), Workers’ Compensation are $50 per inch of depth. and Social Security. Strong writing and legal research DEADLINE: See www.okbar.org/members/BarJournal/ skills are required, able to prepare and review discov- advertising.aspx or call 405-416-7018 for deadlines. ery, research and write memos and briefs, be familiar SEND AD (email preferred) stating number of times to be with medical knowledge and outlines, be self-motivat- published to: ed and willing to help out in all situations, including client contact, trial preparations, depositions and pos- [email protected], or sible court appearances (depending on knowledge and Mackenzie McDaniel, Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152. certifications). Benefits and other office matters will be discussed upon application/review. Please submit in- Publication and content of any advertisement are not to be quiries and resumes in confidence with salary require- deemed an endorsement of the views expressed therein, nor ments included to “Box N,” Oklahoma Bar Association, shall the publication of any advertisement be considered an en- PO Box 53036, Oklahoma City, OK 73152. dorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory. DO NOT STAPLE BLIND BOX APPLICATIONS.

2398 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 Save the Date! OBA Solo & Small Firm Conference Choctaw Casino Resort, Durant June 23 – 25, 2016

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2399 THE BACK PAGE

What Happened to the Dress Code? By R. Robyn Assaf

Admittedly it has been blazer and slacks. Suits and decades since I graduated dress suits are always on from law school, passed the sale at the mall, online or bar and was sworn into the can easily be found at thrift state and federal courts. For or consignment shops. A those events, I knew a busi- couple of suits with different ness suit was required. Dur- shirts or tops can go a long ing law school we were way. instructed that professional Evidently the British rec- attire aka suits were manda- ognized the problem with tory during oral argument the dress code way back competitions, moot court etc. when and adopted the robe I applied that information to for the barristers appearing real court appearances and in court. Hollywood still believe that our professional portrays lawyers in suits standing as attorneys and and professional attire officers of the court calls for (although sometimes too the wearing of a suit or pro- short or low cut) so the fessional dress. In the inter- blame is not on them. With est of full disclosure, I am a firms and companies adopt- female. To my understanding ing a casual dress code, or wearing a dress to court still none at all, it appears that means including a jacket to “dress for success” has meet the business attire stan- become a thing of the past. dard. Recently I have seen Lawyers are professionals outfits in court that looked and the court should never more like yoga clothes than adopt a casual dress code. professional attire. There is always a black jacket behind It is fine to dress in jeans my office door to put over a or khakis with T-shirts or dress or slacks in case of an sweats while in the office unscheduled court appear- performing research and ance. I would not feel right writing. I’m all for being showing up like I am having looked at the price of designer comfortable when tackling a a “casual Friday” when the jeans and shirts knows those tedious legal research task. judge is in a formal robe. are much more pricey than a However, when scheduled to appear in court you are a pro- So why are so many young basic suit on sale. Women’s suits can be bought for less fessional and should dress attorneys dressed down in pro- accordingly. fessional settings? Are profes- than the price of a single Polo sional looking clothes too shirt. The same price points Ms. Assaf practices in expensive? Anyone who has apply to a man’s basic blue Oklahoma City.

2400 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015 8:30 a.m. Registration

9 a.m. Introduction: The Car Negotiation Story

9:10 a.m. Discuss Latz’s Golden Rules of Negotiation

AVAILABLE 10:30 a.m. Break GAIN THE EDGE!® 10:45 a.m. Negotiation Ethics: Part I NEGOTIATION 11:15 a.m. Discuss Negotiation Strategies STRATEGIES FOR Noon Lunch (provided) LAWYERS 1 p.m. Discuss Negotiation Strategies 1:30 p.m. Prepare to Negotiate Simulation DEC. 10, 2015 Oklahoma Bar Center 2 p.m. Negotiation Simulation

2:30 p.m. Analyze Negotiation Simulation DEC. 11, 2015 OSU Tulsa 2:45 p.m. Break 3 p.m. Discuss Negotiation Strategies

4 p.m. Negotiation Ethics: Part II

4:30 p.m. Adjourn

This course has been approved by the Oklahoma Bar Associa- tion Mandatory Continuing Legal Education Commission for 7 hours of mandatory CLE credit, including 2 hours of ethics.

TUITION: $225 for early-bird registrations with payment received at least four full business days prior to the seminar date; $250 for registrations with payment received within four full business days of the seminar date. Walk-ins $275. To receive a $10 discount for the live onsite program, register online at http://www.okbar.org/members/CLE. The Oklahoma City program will also be webcast (pricing varies).

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