Volume 84 u No. 23 u Sept. 14, 2013

SOCIAL EVENTS • BAR BUSINESS • CLE • ENTERTAINMENT

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1729 You are not alone.

Free 24-hour confidential assistance

• depression/anxiety • substance abuse • stress • relationship challenges

800.364.7886 www.okbar.org/members/ lawyershelpinglawyers Counseling and peer support are available. Some services free as a member benefit.

LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM

1730 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 pg. 1756 Th e m e : Patent OBA An n u a l Me e t i n g Enforcement

Departments contents 1732 From the President Sept. 14, 2013 • Vol. 84 • No. 23 1752 Editorial Calendar 1785 From the Executive Director 1787 Law Practice Tips 1790 Ethics/Professional Responsibility 1792 OBA Board of Governors Actions 1795 Oklahoma Bar Foundation News 1798 Access to Justice 1800 Young Lawyers Division 1803 Calendar 1805 For Your Information 1807 Bench and Bar Briefs 1809 In Memoriam 1811 What’s Online 1816 The Back Page pg. 1766 Good Faith in Commercial Transactions Plus 1756 Defending Against Reckless Patent Features Enforcement Should Not Be an 1734 Annual Meeting Highlights Ordinary Cost of Doing Business By Mick McCarthy Florida Defense Attorney Jose Baez 1736 1766 Oklahoma Supreme Court Addresses to Deliver Keynote Address the Role and Importance of Good at Annual Luncheon Faith in Commercial Transactions 1737 President’s Reception By Alvin C. Harrell 1738 CLE to the Rescue 1772 Taxation Law Section: New By Susan Damron Krug Oklahoma Taxpayer Appeal 1742 OBA Sections Present The Best of Procedure Oklahoma: Art, Music, Food & Wine By Sheppard F. Miers Jr. 1776 Taxation Law Section: 1743 Resolutions 2013 Oklahoma Tax Legislation 1747 House of Delegates By Sheppard F. Miers Jr. 1748 Elections: 2014 Board of Governors 1782 Women in Law Conference: Vacancies and OBA Nominating Communication Across Generations, Petitions Filed Gender and Culture By Kimberly Hays 1751 Program of Events 1784 Book Review: Th e Co m p l e t e Id i o t ’s 1753 Registration Form Gu i d e t o Pa r l i a m e n t a r y Pr o c e d u r e Reviewed by Melissa DeLacerda

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1731 FROM THE PRESIDENT

Annual Meeting Worth Your Time By Jim Stuart

On Nov. 13-15 the OBA Annual Meeting Florida lawyer Jose Baez, who will be held at the Sheraton Hotel in downtown Okla- successfully defended Casey An- homa City. Our theme this year is “Lawyers: Defenders thony, accused of murdering her of Liberty.” I encourage all OBA members to attend. The infant child. His story about rep- scheduled events are highlighted throughout this issue. resenting the most hated woman They are varied and intended to ap- in America is compel- peal to all OBA members. ling. Annual luncheon There is no seating is sure to fill Each year you may ask: “Why up fast, so don’t wait. should I attend the Annual Meet- substitute for ing?” It means more time out of the DELEGATE office and more work when I return. face-to-face PARTICIPATION The answer is fairly simple. The An- interaction IMPORTANT nual Meeting provides an opportu- I also want to make nity for Oklahoma lawyers to gather with other a plea to all counties under common interests and goals, to elect and send their to learn about and to discuss current lawyers. representatives to the legal issues and challenges facing us House of Delegates. in the practice of law. In recent years several It’s also a lot of fun. There is no substi- counties have failed to send a tute for face-to-face interaction with delegate. Representation in bar other lawyers. governance matters is essential. I’ve noticed that each year I take away One of the topics this year is a something from the experience that I proposal to eliminate the age 65 didn’t expect. One year I settled a law- exemption from mandatory CLE. suit by running into another lawyer, and I expect lively discussion on this in doing so we provided a valuable ser- particular topic. vice to our clients. I always learn some- Take a moment, send in your thing new about technology from Jim registration form, and join me Calloway. It’s a perfect time to catch up and your fellow Oklahoma law- on year-end CLE. yers in making this year’s Annual Consistent with this year’s theme, at Meeting a meaningful event. I the annual luncheon I will be presenting look forward to seeing you there!

President Stuart practices in Shawnee. [email protected] 405-275-0700

1732 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 OFFIC ERS & BOARD OF GOVERNORS James T. Stuart, President, Shawnee Renée DeMoss, President-Elect, Tulsa events Calendar Dietmar K. Caudle, Vice-President, Lawton Cathy M. Christensen, Immediate Past President, Oklahoma City SEPTEMBER 2013 Gerald C. Dennis, Antlers 17 OBA Communications Committee meeting; 12:15 p.m.; Oklahoma Bar James A. Drummond, Norman Center, Oklahoma City with teleconference with Doerner, Saunders, Daniel & Robert S. Farris, Tulsa Robert D. Gifford II, Oklahoma City Anderson LLP, Williams Center Tower II, Two West Second St., Ste. 700, Tulsa; Kimberly Hays, Tulsa Contact Dick Pryor 405-740-2944 Douglas L. Jackson, Enid 18 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; O. Chris Meyers II, Lawton D. Scott Pappas, Stillwater Oklahoma Bar Center, Oklahoma City with teleconference; Contact Nancy S. Parrott, Oklahoma City Jeffrey Love 405-286-9191 Bret A. Smith, Muskogee Ruth Bader Ginsburg Inn of Court; 5 p.m.; Oklahoma Bar Center, Richard D. Stevens, Norman Oklahoma City; Contact Donald Lynn Babb 405-235-1611 Linda S. Thomas, Bartlesville Joseph M. Vorndran, Shawnee, 19 OBA Board of Governors meeting; 11 a.m.; Oklahoma Bar Center, Chairperson, OBA/Young Lawyers Division Oklahoma City; Contact John Morris Williams 405-416-7000 BAR Center Staff Oklahoma Bar Foundation Trustee meeting; 3:30 p.m.; Oklahoma Bar John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Jim Calloway, Center, Oklahoma City; Contact Nancy Norsworthy 405-416-7070 Director of Management Assistance Program; 20 OBA Law Schools Committee meeting; 10 a.m.; Oklahoma Bar Center, Craig D. Combs, Director of Administration; Oklahoma City with teleconference; Contact Kenneth Delashaw Susan Damron Krug, Director of Educational Programs; Beverly Petry Lewis, Administrator 580-276-3136 MCLE Commission; Carol A. Manning, Director 21 OBA Title Exam Standards Committee meeting; 9 a.m.; Tulsa County of Communications; Travis Pickens, Ethics Counsel; Bar Center, Tulsa; Contact Jeff Noble 405-942-4848 Robbin Watson, Director of Information Technology; Jane McConnell, Coordinator Law-related Education; 23 OBA Law-related Education PROS Training – Elementary Session; Loraine Dillinder Farabow, Tommy Humphries, 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Suzanne Heggy Katherine Ogden, Steve Sullins, Assistant General 405-556-9612 Counsels; Tommy Butler, Tanner Condley, Sharon Orth, Dorothy Walos and Krystal Willis, OBA Litigation Section meeting; 12 p.m.; Oklahoma Bar Center, Investigators Oklahoma City with teleconference; Contact Renée DeMoss 918-595-4800 Manni Arzola, Jarrod Houston Beckstrom, Debbie Brink, Emily Buchanan, Susan Carey, OBA Juvenile Law Section meeting; 4 p.m.; Oklahoma Bar Center, Nickie Day, Johnny Marie Floyd, Matt Gayle, Oklahoma City with teleconference; Contact Tsinena Thompson 405-232-4453 Dieadra Goss, Brandon Haynie, Suzi Hendrix, 24 OBA Law-related Education PROS Training – Secondary Session; Misty Hill, Debra Jenkins, Durrel Lattimore, Heidi McComb, Renee Montgomery, Wanda F. Reece, 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Suzanne Heggy Larry Quinn, Lori Rasmussen, Tracy Sanders, 405-556-9612 Mark Schneidewent, Jan Thompson, Laura Willis OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar & Roberta Yarbrough Center, Oklahoma City; Contact Barbara Swinton 405-713-7109 EDITORIAL BOARD Editor in Chief, John Morris Williams, News OBA Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Center, & Layout Editor, Carol A. Manning, Editor, Oklahoma City with teleconference; Contact Judy Spencer 405-755-1066 Melissa DeLacerda, Stillwater, Associate Editors: Dietmar K. Caudle, Lawton; Emily Duensing, 25 New Admittee Swearing In Ceremony; 9 a.m.; House of Representa- Tulsa; Erin Means, Moore; Pandee Ramirez, tives, State Capitol; Contact Board of Bar Examiners 405-416-7075 Okmulgee; Mark Ramsey, Claremore; Judge For more events go to www.okbar.org/calendar Megan Simpson, Buffalo; Joseph M. Vorndran, Shawnee; Judge Allen J. Welch, Oklahoma City; January Windrix, Poteau The Oklahoma Bar Association’s official website: www.okbar.org NOTICE of change of address (which must be THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar in writing and signed by the OBA member), Association. All rights reserved. Copyright© 20082013 Oklahoma Bar Association. undeliverable copies, orders for subscriptions The design of the scales and the “Oklahoma Bar Association” encircling the or ads, news stories, articles and all mail items scales are trademarks of the Oklahoma Bar Association. Legal articles carried should be sent to the Oklahoma Bar Association, in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. P.O. Box 53036, Oklahoma City, OK 73152-3036. The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Oklahoma Bar Association 405-416-7000 a month in january, February, March, April, May, August, Septem- Toll Free 800-522-8065 FAX 405-416-7001 ber, October, November and December and bimonthly in June and Continuing Legal Education 405-416-7006 July.y bbyy thethe OOklahoma BBar AAssociation,, 19011901 N. Lincoln Boulevard, Ethics Counsel 405-416-7055 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- General Counsel 405-416-7007 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Law-related Education 405-416-7005 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Lawyers Helping Lawyers 800-364-7886 tions are $60$55 per year except for law students registered with the Mgmt. Assistance Program 405-416-7008 Oklahoma Bar Association, who may subscribe for $25. Active mem- Mandatory CLE 405-416-7009 ber subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessar- OBJ & Communications 405-416-7004 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Board of Bar Examiners 405-416-7075 Journal Board of Editors. Oklahoma Bar Foundation 405-416-7070

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1733 Annual Meeting HIGHLIGHTS

President’s Legal What does my Annual Meeting Superhero Reception registration fee include?

This year, team up with the other OBA Defenders of Liberty at their Oklahoma City Sheraton Hotel head- quarters. Your registration fee includes Wednesday and Thursday super-powered breakfast in the top-secret hospitality area and Wednesday evening’s President’s Legal Superhero Reception. Wednesday and Thursday afternoon, if you need a break from fighting injustice, break treats will be available in the hospitality area. Not all superheroes have super powers in the traditional Fee also includes sense. Regular folks like Atticus Finch and Perry Mason Thursday proved to have powers of their own – astonishing integ- evening’s OBA rity, spectacular honesty and a powerful work ethic – Sections event - which are traits even more important than flying or The Best of honing in on Spidey senses. This year’s President’s Oklahoma: Art, Reception celebrates these legal superheroes with hors Music, Food & d’oeuvres, a cash bar and the chance to mingle with Wine, a chocolate other OBA avengers. Reception is from 7 – 9:30 p.m., convention gift and attendance is included in registration fee. Bring a and Vendors sidekick for no additional cost. Each person attending Expo. Cape and receives two beverage tickets. mask are optional.

Annual Luncheon Florida attorney Jose Baez will serve as the keynote speaker during the Annual Luncheon. As lead defense counsel in the case of Florida v. Casey Anthony, Mr. Baez upheld his professional responsibility to ensure effec- tive counsel for his client, no matter how unpopular the accused party may be. Mr. Baez, who also teaches a class in trial techniques at Harvard Law School, shares his unique insight on the topic of “Why Casey Anthony was Found Not Guilty.” The OBA will honor its own superheroes when OBA awards are presented during the Annual Luncheon, which takes place from noon - 1:45 p.m. on Thursday, Nov. 14. Cost is $35 with Annual Meeting registration. Seating is limited, so register early!

1734 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 OBA Sections Present The Best of Oklahoma: Art, Music, Food & Wine Even classier than a Bruce Wayne cocktail party, this new OBA section-sponsored event highlights Oklahoma’s finest. On Thursday, Nov. 14, from 7 - 9 p.m. Oklahoma City pianist Tommy Nix will set the mood on the ivories as wine flows and succulent passed hors d’oeuvres make their way around the ballroom adorned in local art available for purchase. Unwind from the day, meet and mingle with section leaders and join your fellow OBA members for an evening of culture and enjoyment. Annual Meeting registration not required. Sponsors: OBA Sections

Leadership Academy President’s Breakfast During Annual Meeting, the 25 participants of the fourth annual OBA Leadership Academy will attend a session aimed at developing the associ- ation’s future leaders. On Thursday, Nov. 14 from 2 – 5 p.m., attendees will learn about the how the OBA works, listen to insight from former academy participants, and find out more about the Lawyers for Heroes program, Wills for Heroes, Law Day and the ABA. Social events are also planned for Wednesday and Thursday evening. On Friday morning, the Leadership Class will serve as tellers for the Board of Governors elec- tions during the House of Delegates. Annual Meeting registration is encouraged, but not required for Leadership Academy participants. As the Annual Meeting comes to a close on Friday, Nov. 15, President Jim Stuart invites you to join him at the President’s Breakfast, a long- standing tradition when OBA presi- dents host a unique program reflecting his or her interests. Cost: $25.

How do I register?

Register for all “Lawyers: Defenders of Lib- erty” events in a flash using the Annual General Assembly & House of Delegates Meeting registration form found on page 1753 or online at www.amokbar.org. Send paper forms with payment by mail to OBA The important business of the association Annual Meeting, P.O. Box 53036, Oklahoma will be conducted Friday, Nov. 15 beginning at City, OK 73152 or fax with credit card 9 a.m. Resolutions will be voted upon, leaders information to 405-416-7092. For the best will be elected and awards will be presented. price, register by Oct. 21. Questions? Con- Do not miss your chance to participate in the tact Mark Schneidewent at 405-416-7026, governance of your professional association. 800-522-8065 or [email protected]. County bar presidents need to submit the names of delegates and alternates ASAP to OBA Executive Director John Morris Williams. The delegate certification form is online at www.okbar.org/members/DelegateCert. Either mail the form to Mr. Williams at OBA, P. O. Box 53036, Oklahoma City, OK 73152-3036, or fax to 405-416-7001.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1735 Annual Meeting Florida Defense Attorney Jose Baez to Deliver Keynote Address

Florida lawyer Jose Baez will present “Why “The defense in the Anthony case reminds Casey Anthony Was Found Not Guilty” during me of our Founding Father John Adams, who the Annual Luncheon to be held in conjunction defended British soldiers after the Boston Massa- with the OBA Annual Meeting on Thursday, cre. Both men put their careers and reputations Nov. 14 at noon. on the line to ensure the legitimacy of our legal system. Every Oklahoma lawyer has taken an Mr. Baez appeared on the lecture circuit after oath to uphold and defend the Constitution. The successfully defending his client, Casey Antho- experiences of Mr. Baez remind all lawyers of ny, in her high-profile 2011 murder trial. OBA our professional responsibility to President Jim Stuart chose Mr. our clients and to society at large Baez to speak after hearing his to see that justice is preserved,” recent presentation to the Mr. Stuart said. Arkansas Bar Association. The principal lawyer with the “I found his speech to be Baez Law Firm of Coral Gables thought-provoking,” said Mr. and Orlando, Fla., Mr. Baez’s Stuart. “He talked about his ded- practice has a particular empha- ication to representing an unpop- sis on representing clients in ular client, and his professional complex and high profile crimi- obligation to present a vigorous nal and civil cases. He is also defense for Ms. Anthony. He took known for representing many a courageous stance; he knew he victims of negligence and seri- would be criticized in light of the ous crimes. He also serves on significant media attention the case the faculty at Harvard Law received. Yet he took the case, did School, where he teaches trial his job despite threats and harass- techniques to second- and ment and produced a successful third-year law students. He is outcome for his client.” Jose Baez fluent in Spanish and Portuguese and Mr. Baez’s presentation fits into this year’s is active in various charitable endeavors in the Annual Meeting theme “Lawyers: Defenders of Hispanic community. Liberty” precisely because he stood up for the Make plans now to attend Mr. Baez’s address rights of an accused person who was entitled to the Annual Luncheon, one of the premiere to a fair trial under the law. events during each year’s convention. The cost to attend the luncheon is $35 with Annual Meeting registration. Seating is limited, so register now!

1736 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 Annual Meeting President’s Reception Inspired by Legal Superheroes

You can only protect your liberties in this world by protecting the other man’s freedom. those heroes as well as their fellow bar members at the Clarence Darrow event that will feature hors d’oeuvres (don’t worry, the Justice Oliver Wendell famous shrimp will be back), Holmes, Jr., Constance Baker a cash bar and an opportunity Motley, Clarence Darrow to mix and mingle with and Thurgood Marshall. Oklahoma’s legal heroes. Atticus Finch, Perry Mason, The reception is on Nov. 13, Vinny Gambini and Elle 2013, from 7 – 9:30 p.m., Woods. Legal heroes, and attendance is included in whether they existed in the the annual meeting registration flesh or on page or screen, fee. Bring a sidekick for no inspire many current and additional cost. Each person aspiring attorneys who attending receives two are motivated by these beverage tickets. iconic figures and charac- ters and their commitment to justice. The life of the law The President’s Legal has not been logic; it Our courts have their Superhero Reception has been experience. encourages all attendees faults, as does any human to draw inspiration from institution, but in this country Oliver Wendell Holmes Jr. our courts are the great levelers, and in our courts all men are created equal. Atticus Finch

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1737 Annual Meeting CLE to the Rescue! By Susan Damron Krug To be a great defender of justice, it is important to get mous sidekick, nationally known expert and e-discovery the right training. Hey, Captain America didn’t join the beast Bret Burney, will wow you with his ability to find other super-powered Avengers by sitting around trying electronic data and produce winning evidence in a single to figure out what color of tights he would wear, right? bound. This track goes far beyond mere technology. No way! On Thursday, it will be time to put your capes on for Regardless of your practice area, rigorous training is a morning plenary session offering three hours of MCLE needed to prepare you for everyday challenges. There’s credit including ethics. During this program, OETA’s Dick no one better to provide that training than the leading Pryor will moderate a panel discussion among Jose Baez, superhero of continuing legal education, OBA/CLE. our Annual Meeting keynote speaker best known for his defense of Casey Anthony; Oklahoma County District Register now for CLE during Annual Meeting, and rest Attorney David Prater; Jacqui Ford, Jacquelyn Ford Law, assured that you will be better prepared to fight injustice P.C., Oklahoma City; and from TV News 9, Adrianna for those in need. Iwasinski. This will prove to be a lively and interesting We will kick things off with a “boom” during Wednes- session as they discuss Media and the High-Profile Case. day’s multi-track CLE sessions. This year, criminal and The dynamic duo, David McKenzie and Pamela Stillings, juvenile law team up to put you at the top of your game will also present on Hearsay and the Confrontation so you can thwart any evil case that comes your way. The Clause. Last but not least, Oklahoma’s own Avenger, ever-popular recent developments track will offer the latest Garvin Isaacs, Garvin A. Isaacs, Inc., Oklahoma City legal updates, and the health law track will include a fast will also bring his arsenal of war stories on Creative and furious review of this year’s top developments. Voir Dire in the Digital Age. Among the other hot topics, this track features former Remember, becoming a superhero is not an overnight Oklahoma State Insurance Commissioner - the Wonder task. You need time and effort. As the great Ida B. Wells Woman of health care — Kim Holland. Ms. Holland cur- once said, “One had better die fighting against injustice rently serves as the executive director responsible for state than to die like a dog or a rat in a trap.” Register for affairs of Blue Cross Blue Shield’s Washington, D.C. OBA/CLE and rest assured, we will keep you fighting on office. No doubt she will bring up-to-the-minute news on the right side of the law. one of the leading issues of the year: healthcare reform. Additional details about all of these programs are Last but not least, the mastermind himself, Flash (a.k.a. available in this bar journal and at www.amokbar.org. Jim Calloway), will serve up a technology track packed Ms. Krug is director of OBA Continuing Legal with all of the latest tricks and tools that you can apply Education. to your practice, regardless of your superpower. His infa-

Kim Holland Jose Baez Garvin Isaacs Dick Pryor

1738 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 Wednesday, Nov. 13 OBA/CLE Sheraton Hotel, Oklahoma City, 6 MCLE Hours Juvenile/Criminal Health Law Recent Technology Law Track Track Developments Track Qualifies for 6 hrs. juvenile law training per 10 A O.S. Sec. 1-8-10(B)1 Ben Brown Cori Loomis Jim Calloway Gail Stricklin Fundamentals of the 2013 A Year in Review PDF Tips and Tricks Indian Child Welfare A Fast and Furious Review of That Will Change Act (ICWA) This Year’s Top Developments Your Practice cosponsored by the Health Law Section 9-9:50 Kelly Stoner Karen Rieger Bret Burney Cori Loomis Jim Calloway The Trauma Licensure Board Criminal Law Update How to Use Informed Attorney Issues: Update on Technology to Rules and Market Your Navigating Law Practice Disciplinary Proceedings 10-10:50 Jackie Steyn Kim Stevens, RN, JD Barry Derryberry Bret Burney Elizabeth Scott Andrea Miller Jim Calloway Best Practices for Health Care Reform Family Law Update iLitigate on an iPad Show Cause Hearing: Update Balancing Needs of Child with Rights of Parents Kim Holland Professor Bret Burney

11-11:50 Panel TBD Session sponsored by Robert G. Spector Jim Calloway Judge Warren Hollis Oklahoma Health officiating Lawyers Association Ethics Advanced Stark Employment Law E-Discovery Update and AKS Update Compliance: Case Studies and Hypotheticals 2-2:50 Ben Brown Elizabeth Tyrrell David Strecker Bret Burney Tsinena Thompson Greg Frogge Pat Rogers Expungement HIPAA and Health Insurance Law 21st Century Ethics Information Update and Technology – Exchange: Big Cloud Services and Data, Big Issues Mobile Devices

3-3:50 (Ethics) Dave Stockwell Teresa Burkett Rex Travis Bret Burney Jim Calloway DUI Health Care Civility Matters 50 Hot Technology Litigation Udpate: (Ethics) Tips in 50 Minutes Impact of Oklahoma SCT Bill Grimm Bret Burney Decision on Lawsuit Dan Folluo Jim Calloway Reform and John Woodard 4-4:50 Provider Liability Gary Homsey G. Calvin Sharpe Charles Sifers John Wiggins Ed Cunningham J. Michael Gassett

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1739 ROBERTSON CORNELL CCRR Answers. Action. Excellence. Robertson Cornell is pleased to announce that Melissa F. Cornell has been admitted as a Certi ed Fellow of e American Academy of Matrimonial Lawyers (AAML), the pre-eminent family law association in America. Academy Fellows are recognized by their colleagues and the judges where they practice as leading experts in the eld. Each fellow must demonstrate by conduct a professional and ethical commitment to their clients and to the betterment of society in resolving what are oen intensely emotional and complex family problems. By demonstrating the highest standards of matrimonial practice, fellows of the Academy have set the standard for the family law bar and have helped improve the quality of family law practice throughout the country. Moura A.J. Robertson and Melissa F. Cornell have over 30 years of combined experience and only practice family law. ey are AV Preeminent® rated by Martindale-Hubbel, each certi ed fellows of the AAML, included in e Best Lawyers in America® in divorce and mediation, and are recognized by Super Lawyers® as being top professionals in their eld. Visit www.tulsadivorce.com

'ILSBAR02/!(ORSE/F!$IFFERENT#OLOR

7HEN
IS
THE
LAST
TIME
YOU
HAD
OPTIONS ØT
'ILSBAR02/
YOU
CAN
RECEIVE
A
NOOBLIGATION
Get Competitive Options. PROFESSIONAL
LIABILITY
ESTIMATE
WITHIN
TWO
HOURS
Call The PROs Today. /UR
TEAM
WORKS
WITH
ØRATED
CARRIERS
TO
PROVIDE
THE
TRUSTED
PROTECTION
YOUR
ÞRM
NEEDS sGILSBARPROCOM p

/VER

YEARS
OF
PROFESSIONAL
LIABILITY
EXPERIENCE p
#URRENTLY
SERVING
OVER
 
ATTORNEYS p
&AST
QUOTES
AND
EASY
RENEWALS p
ØCCESS
TO
THE
BEST
CARRIERS
IN
THE
NATION

1740 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 OBA/CLE PLENARY SESSION

This seminar has been approved for 3 hours MCLE credit including 1 hour ethics Media and the 8:30 a.m. Early that morning… 9 a.m. High-Profile Case Moderator: Dick Pryor, Oklahoma Educational Television Authority (OETA) Jose Baez, Baez Law Firm, Coral Gables and Orlando, Fla. David Prater, District Attorney District #7; Jacqui Ford, Jacquelyn Ford Law, P.C., 2011 Clarence Darrow Recipient, Oklahoma City; Adrianna Iwasinski, TV News9 REGISTRATION Later… 10 a.m. Hearsay and the Confrontation Clause The Apostle Paul, the American Revolution and Beyond David McKenzie, Office of the Public Defender Break!Break! of Oklahoma County; 1997 Clarence Darrow Recipient, Oklahoma City Pamela Stillings,The Law Office of Pamela Stillings, 9:50 a.m. Oklahoma City

10:50 a.m. Creative Voir Dire in the 11:45 a.m. Digital Age Garvin Isaacs, Garvin A. Isaacs, Inc., Oklahoma City (ethics) Adjourn!Adjourn!

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1741 Annual Meeting OBA Sections Present An Evening With Oklahoma’s Best: Art, Music, Food and Wine

November 14 u 7 p.m. u Sheraton Ballroom

Oklahoma’s blossoming food and art scenes rank among the state’s best kept secrets. The OBA sections invite you to attend “An Evening with Oklahoma’s Best” to sample world-class art, music, food and wine, all from Oklahoma.

1742 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 2013 Resolutions The following resolutions will be submitted to the (d) An attorney who attains the age of sixty-five House of Delegates at the 109th Oklahoma Bar (65) years of age before or during the calendar Association Annual Meeting at 10 a.m. Friday, Nov. year which is being reported is exempt from all 15, 2013, at the Sheraton Hotel in Oklahoma City. requirements of these rules except as provided in Rule 5. An attorney having been granted an RESOLUTION NO. 1: REPEAL exemption based on attaining age 65 prior to OF CONTINUING LEGAL January 1, 2015, shall be granted a continuing EDUCATION EXEMPTION exemption. FOR MEMBERS OVER AGE (e) An attorney who, during the entire reporting period, is a nonresident of the State of Oklahoma OF 65 and did not practice law in the State of Oklaho- BE IT RESOLVED by the House of Delegates ma is exempt from the educational requirements of the Oklahoma Bar Association that the Asso- of these rules. ciation adopt, as part of its legislative program, (f) An attorney who files an affidavit with the as published in The Oklahoma Bar Journal and Commission on Mandatory Continuing Legal Edu- posted on the OBA website at www.okbar.org, cation of the Oklahoma Bar Association stating proposed legislation amending 5 O.S. 2003, ch. that the attorney did not practice law during the 1, app. 1-B, Rule 2 of the Rules for Mandatory reporting period is exempt from the educational Continuing Legal Education. (Requires 60% affir- requirements of these rules. mative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the MCLE Commission.) (g) Any person claiming an exemption hereun- der is required to file an annual report in compli- (a) Effective January 1, 2015, except as pro- ance with these rules and regulations. vided herein, these rules shall apply to every active and senior member of the Oklahoma Bar RESOLUTION NO. TWO: Association as defined by Article II of the Rules Creating and Controlling the Oklahoma Bar APPOINTMENT OF Association. DISCOVERY MASTER (b) An attorney is exempt from the educational BE IT RESOLVED by the House of Delegates requirements of these rules for the calendar year of the Oklahoma Bar Association that the Asso- during which he or she was first admitted to prac- ciation adopt, as part of its legislative program, tice. as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, (c) All Judges who, during the entire reporting proposed legislation creating new law to be period, are by Constitution, law or regulation codified at 12 O.S. 2011, Section 2053, which prohibited from the private practice of law, mem- relates to the appointment of a discovery master bers of the United States Congress, members of in court proceedings; identifying the requirements the Oklahoma Legislature, the Attorney General and circumstances for the appointment of a dis- of the State of Oklahoma and members of the covery master and effective date. (Requires 60% armed forces on full time active duty shall be affirmative vote for passage. OBA Bylaws Art. exempt from the educational requirements of VIII Sec. 5) (Submitted by the Civil Procedure and these rules. Evidence Code Committee.)

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1743 BE IT ENACTED BY THE PEOPLE OF THE STATE discovery master discloses any potential grounds OF OKLAHOMA: for disqualification. SECTION 1. NEW LAW To be codified at 12 (2) Disclosure. The discovery master must dis- O.S. 2011, Section 2053 , Discovery Masters, to close any possible conflicts within fourteen (14) read as follows: days of appointment. SECTION 2. (3) Motions to Disqualify. A motion to disqualify a discovery master must be made within fourteen (A) Appointment. (14) days of the discovery master’s disclosure of (1) Scope. Unless a statute provides otherwise, the conflict. The discovery master will rule origi- on motion by a party or on its own motion, upon nally on any motion to disqualify. hearing unless waived, a court may in its discre- tion appoint a discovery master to: (4) Review by Assigned Judge. Any interested party who deems himself aggrieved by the refusal (a) perform duties related to discovery, of a discovery master to grant a motion to dis- consented to by the parties; or qualify may re-present his motion to the Judge (b) address pretrial and posttrial discov- assigned to the case by filing in the case within ery matters to facilitate effective and timely five (5) days from the date of said refusal a writ- resolution. ten request for re-hearing. A copy of the request shall be mailed or delivered to the Judge assigned (2) Required Findings. An order appointing a to the case, to the adverse party and to the dis- discovery master under paragraph (A)(1)(b) of covery master. this section must contain the following findings by the Court: (5) Review by Presiding Judge. Any interested party who deems himself aggrieved by the refusal (a) The appointment and referral are of the Judge assigned to the case to grant a necessary in the administration of justice motion to disqualify the discovery master may re- due to the nature, complexity, or volume of present his motion to the Presiding Judge of the the materials involved, or for other excep- county in which the cause is pending. A copy of tional circumstances; and the request shall be mailed or delivered to the (b) the likely benefit of the appointment Presiding Judge, to the adverse party, to the of a discovery master outweighs its burden Judge assigned to the case, and to the discovery or expense, considering the needs of the master. case, the amount in controversy, the parties’ (6) Review by Supreme Court. If the hearing resources, the importance of the issues at before the Presiding Judge results in an order stake in the action, the importance of the adverse to the movant, he shall be granted not referred issues in resolving the matter or more than five (5) days to institute a proceeding proceeding in which the appointment is in the Supreme Court for a writ of mandamus. The made; and Supreme Court will not entertain an original pro- (c) the appointment will not improperly ceeding to disqualify a discovery master unless it burden the rights of the parties to access the is shown that the relief sought was previously courts. denied by the discovery master, the Judge assigned to the case, and the Presiding Judge, in (3) Possible Expense or Delay. In appointing a accordance with this Section. An order favorable discovery master, the court must consider the fair- to the moving party may not be reviewed by ness of imposing the likely expenses on the par- appeal or other method. ties and must protect against unreasonable expense or delay. Such appointment should not (C) Order Appointing a Discovery Master. be routinely made. (1) Notice. Before appointing a discovery mas- (B) Disqualification. ter, the court must give the parties notice and an opportunity to be heard unless waived. Any party (1) In General. A discovery master must not may suggest candidates for appointment. have a relationship to the parties, attorneys, action, or court that would require disqualifica- (2) Contents. The appointing order must direct tion of a judge, unless the parties, with the court’s the discovery master to proceed with all reason- approval, consent to the appointment after the able diligence and must state:

1744 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013  (a) the discovery master’s duties, includ- (d) take all appropriate measures to ing any investigation or enforcement perform the assigned duties fairly and effi- duties, and any limits on the discovery ciently; and master’s authority under paragraph (C) of (e) if conducting an evidentiary hear- this section; ing, exercise the appointing court’s power (b) the circumstances, if any, in which to take and record evidence, including com- the discovery master may communicate ex pelling appearance of witnesses or produc- parte with a party; tion of documents in connection with these duties. (c) any limitations on the discovery mas- ter’s communications with the court; (2) Sanctions. The discovery master may recom- mend any sanction provided by Section 2004.1, (d) the nature of the materials to be pre- 3226.1, or 3237 of this Title. served and filed as the record of the discov- ery master’s activities; (E) Discovery Master’s Orders, Reports, and Rec- ommendations. A discovery master who issues an (e) the time limits, method of filing the order, report, or recommendation must file it and record, other procedures, and standards for promptly serve a copy on each party. The clerk reviewing the discovery master’s orders, must enter the order, report, or recommendation findings, and recommendations; and on the docket. (f) the basis, terms, and procedure for (F) Action on the Discovery Master’s Order, fixing the discovery master’s compensation Report, or Recommendations. under paragraph (G) of this section. (1) Time to Object or Move to Adopt or Modify. The Court shall have the discretion to direct the A party may file objections to — or a motion to discovery master to circulate a proposed ap- adopt or modify — the discovery master’s order, pointing order to the parties and provide a time report, or recommendations no later than 14 period for the parties to comment prior to the days after a copy is filed, unless this Section or order’s entry. the court sets a different time. If no objection or (3) Amending. The order may be amended at motion to adopt or modify is filed, the district any time after notice to the parties and an oppor- court may approve the discovery master’s order, tunity to be heard. report, or recommendations without further notice or hearing. (4) Oath. Before the order appointing shall take effect, the discovery master shall execute and file (2) Action Generally. Upon the filing of objec- an oath that he or she will faithfully execute the tions to — or a motion to adopt or modify — the duties imposed by the order of appointment and discovery master’s order, report, or recommenda- any amendments thereto. tion within the time permitted, any party may respond within 15 days after the objections or (D) Discovery Master’s Authority. motion is filed. Objections and motions may be (1) In General. Unless the appointing order decided by the court without a hearing, and directs otherwise, a discovery master may: where this is done, the court shall notify the par- ties of its ruling by mail. In acting on a discov- (a) regulate all proceedings and ery master’s order, report, or recommendations, respond to all discovery motions of the the court may receive evidence; and may adopt parties within the scope of appointment, or affirm, modify, wholly or partly reject or re- including resolving all discovery disputes verse, or resubmit to the discovery master with between the parties, instructions. (b) call discovery conferences under (3) Reviewing Factual Findings. The court must Rule 5 of the Rules for District Courts, at the decide de novo all objections to findings of fact request of a party or on the discovery mas- made or recommended by a discovery master, ter’s own motion; unless the parties, with the court’s approval, stipu- late that: (c) set procedures for the timing and orderly presentation of discovery disputes (a) the findings will be reviewed for for resolution; clear error; or

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1745 (b) the findings of a discovery master (H) Other Statutes. A referee or master appointed appointed under paragraph (A)(1) of this under the authority of another statute or provision section will be final. is subject to this section only when the order refer- ring a matter to the referee or master states that (4) Reviewing Legal Conclusions. The court the reference is made under this section. Nothing must decide de novo all objections to conclusions in this section shall be construed to replace or of law made or recommended by a discovery supersede any other statute or provision authoriz- master. ing the appointment of a referee or master. (5) Reviewing Procedural Matters. Unless the SECTION 3. This act shall become effective appointing order establishes a different standard November 1, 2014. of review, the court may set aside a discovery master’s ruling on a procedural matter only for an RESOLUTION DEADLINE abuse of discretion. OBA Bylaws Ch. 1, App. 2, Article VIII, Sec. 6 (G) Compensation. state “Before a proposal to place a measure upon (1) Fixing Compensation. Before or after judg- the Legislative Program or to endorse it in principle ment, the court must fix the discovery master’s is submitted to vote, by any method, it shall be pub- compensation on the basis and terms stated in the lished in at least one issue of the Journal of the appointing order, but the court may set a new Oklahoma Bar Association and posted on the OBA basis and terms after giving notice and an oppor- web site, prior to the beginning of the Annual Meet- tunity to be heard. ing, together with a notice that it will be submitted to vote, specifying date, time, place and manner.” (2) Payment. The compensation must be paid A proposal must be sent in bill format to Executive either: Director John Morris Williams by Monday, Nov. 4, (a) by a party or parties; or 2013, for publication in the Oklahoma Bar Journal (b) from a fund or subject matter of the Nov. 9, 2013, issue. For resolutions to receive action within the court’s control. a recommendation from the Board of Gover- nors, a proposal must be received by Sept. (3) Allocating Payment. The court must allocate 25, 2013. For resolutions to be published in payment after considering the nature and amount the official General Assembly & House of of the controversy, the parties’ means, and the Delegates publication, a proposal must be extent to which any party is more responsible received by Oct. 28, 2013. than other parties for the reference to a discovery master. An interim allocation may be amended to reflect a decision on the merits.

1746 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 Annual Meeting House of Delegates Dear County Bar Presidents: In accordance with the Bylaws of the Oklahoma Bar Association (5 OS, Ch. 1, App. 2), “The Thank you to the County Bar Presidents of: House of Delegates shall be composed of one del- Adair, Alfalfa, Beaver, Beckham, Bryan, egate or alternate from each County of the State, **Canadian, Cherokee, Choctaw, Cleveland, who shall be an active or senior member of the Coal, Comanche, Cotton, **Craig, Custer, Dewey, Bar of such County, as certified by the Executive Ellis, Garfield, Garvin, Grady, Grant, Harper, Director at the opening of the annual meeting; pro- Johnston, Kay, Kingfisher, Kiowa, Logan, Mayes, viding that each County where the active or senior McClain, McCurtain, McIntosh, Muskogee, Okla- resident members of the Bar exceed fifty shall be homa, Payne, Pittsburg, Pushmataha, Rogers, entitled to one additional delegate or alternate for Seminole, Texas, Tulsa, Wagoner, Washington, each additional fifty active or senior members or Washita, Woods and Woodward counties for major fraction thereof. In the absence of the elect- submitting your delegate and alternate selections ed delegate(s), the alternate(s) shall be certified to for the upcoming OBA Annual Meeting. vote in the stead of the delegate. In no event shall (**Reported, awaiting election) any County elect more than thirty (30) members to the House of Delegates.” Listed below are the counties that have not sent their delegate and alternate selections to the offices “A member shall be deemed to be a resident, … of the Oklahoma Bar Association as of Sept. 10, of the County in which is located his or her mailing 2013. Please help us by sending the names of your address for the Journal of the Association.” delegates and alternates now. In order to have your delegates/alternates certified, mail or fax delegate RESOLUTION DEADLINE certifications to OBA Executive Director John Morris OBA Bylaws Ch. 1, App. 2, Article VIII, Sec. Williams, P.O. Box 53036, Oklahoma City, OK 6 state “Before a proposal to place a measure 73152-3036, or fax 405-416-7001. upon the Legislative Program or to endorse it in principle is submitted to vote, by any method, it Atoka Jackson Okfuskee shall be published in at least one issue of the Blaine Jefferson Okmulgee Journal of the Oklahoma Bar Association and Caddo Latimer Osage posted on the OBA website, prior to the begin- Carter LeFlore Ottawa ning of the Annual Meeting, together with a Cimarron Lincoln Pawnee notice that it will be submitted to vote, specifying Creek Love Pontotoc date, time, place and manner.” A proposal must Delaware Major Pottawatomie be sent in bill format to Executive Director John Greer Marshall Roger Mills Morris Williams by Monday, Nov. 4, 2013, for Harmon Murray Sequoyah publication in the Oklahoma Bar Journal Nov. 9, Haskell Noble Stephens 2013, issue. For resolutions to receive a Hughes Nowata Tillman recommendation from the Board of Gover- nors, a proposal must be received by Sept. 25, 2013. For resolutions to be published in the official General Assembly & House of Delegates publication, a proposal must be received by Oct. 28, 2013.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1747 2014 OBA Board of Governors Vacancies

signed petition (which may be in parts) nominating OFFICERS a candidate for the office of member of the Board of President-Elect Governors for and from such Judicial District, or Current: Renée DeMoss, Tulsa one or more County Bar Associations within the Ms. DeMoss automatically becomes Judicial District may file a nominating resolution OBA president Jan. 1, 2014 nominating such a candidate. (One-year term: 2014) Not less than 60 days prior to the Annual Meeting, Nominee: David A. Poarch Jr., Norman 50 or more voting members of the OBA from any Vice President or all Judicial Districts shall file with the Executive Current: Dietmar Caudle, Lawton Director, a signed petition nominating a candidate (One-year term: 2014) to the office of Member-At-Large on the Board of Nominee: Susan S. Shields, Oklahoma City Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for BOARD OF GOVERNORS this office. Supreme Court Judicial District Two Not less than 60 days before the opening of the Current: Gerald C. Dennis, Antlers Annual Meeting, 50 or more voting members of the Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, Association may file with the Executive Director a LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, signed petition nominating a candidate for the Pushmataha and Sequoyah counties office of President-Elect or Vice President or three (Three-year term: 2014-2016) or more County Bar Associations may file appro- Nominee: Kevin T. Sain, Idabel priate resolutions nominating a candidate for the office. Supreme Court Judicial District Eight Current: D. Scott Pappas, Stillwater If no one has filed for one of the vacancies, nomi- Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, nations to any of the above offices shall be received Payne, Pontotoc, Pottawatomie and Seminole from the House of Delegates on a petition signed by counties not less than 30 delegates certified to and in atten- (Three-year term: 2014-2016) dance at the session at which the election is held. Nominee: James R. Marshall, Shawnee See Article II and Article III of OBA Bylaws for Supreme Court Judicial District Nine complete information regarding offices, positions, Current: O. Chris Meyers II, Lawton nominations and election procedure. Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman counties Elections for contested positions will be held at the (Three-year term: 2014-2016) House of Delegates meeting Nov. 15, during the Nominee: John W. Kinslow, Lawton Nov. 13–15 OBA Annual Meeting. Terms of the present OBA officers and governors will terminate Member-At-Large Dec. 31, 2013. Current: Robert S. “Bob” Farris, Tulsa (Three-year term: 2014-2016) Nomination and resolution forms can be found at Nominee: Deirdre O’Neil Dexter, Sand Springs www.amokbar.org. Summary of Nominations Rules NOTICE Not less than 60 days prior to the Annual Meeting, The nominating petition deadline was 5 p.m., 25 or more voting members of the OBA within the Sept. 13, 2013. This issue went to press before Supreme Court Judicial District from which the the deadline, and the list of nominees may not be member of the Board of Governors is to be elected complete. Check the Annual Meeting website at that year, shall file with the Executive Director, a www.amokbar.org for the final list.

1748 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 BAR NEWS

OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)

OFFICERS Larimore, Michael S. Laird, Cannon Miles Tolbert, Stacey D. Spivey, James Holloman, Cathy Chris- resi d e n t l ec t P -E tensen, Robert G. Gifford II, Linda S. Thomas, Da v i d A. Po a rc h Jr., Nor m a n Glenn A. Devoll, Douglas L. Jackson, Richard L. Nominating Petitions have been filed nominating McKnight, M. Joe Crosthwait Jr., Angela Ailles David A. Poarch Jr. for election of President Elect Bahm, Renee DeMoss, James T. Stuart, John Heat- of the Oklahoma Bar Association Board of Gover- ly, Robert G. McCampbell, Michael Burrage, Reg- nors for a one-year term beginning Jan. 1, 2014. gie N. Whitten, Richard Propester, Joel W. Har- Fifty of the names thereon are set forth below: mon, Cori Loomis, Zane Anderson, Kari A. Hoff- hines, Barbara Moschovidis, Ben Butts, Warren Andrew M. “Andy” Coats, William G. “Bill” Paul, Bickford, Travis Jett, McKenzie Anderson and James T. “Jim” Stuart, Renee DeMoss, Cathy M. Ronald Ricketts Christensen, Deborah A. Reheard, David K. Petty, Harry A. Woods Jr., Melissa DeLacerda, William J. A total of 136 signatures appear on the petitions. “Willie” Baker, Charles D. “Buddy” Neal Jr., M. Joe Crosthwait Jr., William R. Grimm, Joseph W. BOARD OF GOVERNORS Morris, Guy Clark, Nancy Parrott, O.Chris Meyers, Joe Vorndran, Kimberly Hays, C.D. Northcutt, Su pre m e Co u r t Ju d ici a l Dis t ric t Robert Don Gifford II, Douglas L. Jackson, Allen E. No. 2 Barrow Jr., Robert Sartin, Sarah J. Schumacher, Ke v i n T. Sa i n , Id a be l Brooke S. Murphy, Peggy Stockwell, Ted Roberts, Nominating Petitions have been filed nominating Sanford Coats, Kenneth L. Delashaw, Betty Outhi- Kevin T. Sain for election of Supreme Court Judi- er Williams, Scott Pruitt, R. Forney Sandlin, Tom cial District No. 2 of the Oklahoma Bar Associa- Wolfe, Lynn A. Pringle, Roy Tucker, Reta Strubhar, tion Board of Governors for a three-year term Chuck Chesnut, Michael C. Mayhall, Linda S. beginning Jan. 1, 2014. Thomas, Daniel Sprouse, Michael P. Sullivan, Wil- liam A. Gossett, Mart Tisdal, Sam T. Allen IV, Diet- A total of 35 signatures appear on the petitions. mar Caudle, R. Lindsay Bailey, David Swank, Dan Nominating Resolutions have been received from Webber Jr., Micheal Salem and Cheryl B. Wattley the following county: McCurtain A total of 203 signatures appear on the petitions. Su pre m e Co u r t Ju d ici a l Dis t ric t Nominating Resolutions have been received from No. 8 the following counties: Cleveland, Garfield, Love Ja m es R. Ma rs h a l l , Sh a w n ee and Pottawatomie Nominating Petitions have been filed nominating Vice Presi d e n t James R. Marshall for election of Supreme Court Su s a n S. Sh ie l d s , Ok l a h o m a Ci t y Judicial District No. 8 of the Oklahoma Bar Asso- ciation Board of Governors for a three-year term Nominating Petitions have been filed nominating beginning Jan. 1, 2014. Twenty-five of the names Susan S. Shields for election of Vice President of thereon are set forth below: the Oklahoma Bar Association Board of Gover- nors for a one-year term beginning Jan. 1, 2014. Dale V. Beard, Robert Booth II, H. Ned Burleson Fifty of the names thereon are set forth below: II, Robert A. Butler, Russell S. Cochran, Robert S. Duran Jr., Matt Griffith, W. S. Haselwood, Karen Jennifer Callahan, Richard Nix, Mike Lauderdale, Henson, James J. Hodgens, Gregory B. Jackson, T. Michael Blake, Steven Cole, Richard D. Craig, Charles M. Laster, Larry K. Lenora, Shelley Elizabeth Tyrrell, John Robertson, Kurt Rupert, Levisay, Kelli McCullar, Benjamin McCullar, Amy Sine, Armand Paliotta, Charles E. Geister III, Tracy L. McDaniel, Joseph E. McKimmey, Adam Steven C. Davis, J. Christian Guzzy, Jon H. Trud- Panter, Jim Cole Pettis, Greg Pollard, William D. geon, Melanie Jester, Cynda Ottaway, Roger Simpson, Sarah Soderstrom-Bridge, James T. Stong, Karen S. Rieger, Eric S. Fisher, James W.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1749 Stuart, H. Edward Terry, Gregory A. Upton, Joe Me m ber -a t -La rge Vorndran and George Wright. Deir d re O’Nei l De x t er , Sa n d Spri n gs A total of 29 signatures appear on the petitions. Nominating Petitions have been filed nominating A Nominating Resolution has been received from Deirdre O’Neil Dexter for election of Member at the following county: Pottawatomie Large of the Oklahoma Bar Association Board of Su pre m e Co u r t Ju d ici a l Dis t ric t Governors for a three-year term beginning Jan. 1, No. 9 2014. Fifty of the names thereon are set forth below: Jo h n W. Ki n s l o w , La w t o n Stephen D. Beam, Cathy M. Christensen, Renee Nominating Petitions have been filed nominating DeMoss, William R. Grimm, Bob Farris, Linda S. John W. Kinslow for election of Supreme Court Thomas, Steven L. Barghols, Julie Bates, Gerald Judicial District No. 9 of the Oklahoma Bar Associ- M. Bender, Michael Bigheart, John B. Boozer, M. ation Board of Governors for a three-year term Courtney Briggs, Jack L. Brown, David Butler, beginning Jan. 1, 2014. Twenty-five of the names John D. Clayman, Tim E. DeClerck, Paul Demuro, thereon are set forth below: Glenn A. Devoll, Michael Ellis Esmond, James Dietmar K. Caudle, O. Chris Meyers II, C. E. Wade David Ezzell, William E. Farrior, Roberta Brown- Jr., John C. Mackey, Ernest F. Godlove, Jerry Cude, ing Fields, Jon Ford, Ron Franklin, James R. Got- Ana Basora Walker, David L. Butler, Robert E. wals, Daniel B. Graves, Brad Gungoll, Amy K. Prince, Hyman Z. Copeland, Scott Ray, J. W. Hart, Frank X. Henke IV, Dennis W. Hladik, Dan Doolin, Stephen K. Newcombe, Robin Rochelle, Holeman, R. Victor Kennemer III, Larry D. Lah- John N. Fleur, Mark Stoneman, Emmit Tayloe, man, Karen Langdon, Larry D. Leonard, Grant Robert L. Ross, Jordan Cabelka, Lisa Shaw, Aimee Lloyd, Leslie L. Lynch, Clark McKeever, William Vardeman, A. Brad Cox, Carole Brown, Luwana Chad McLain, Gordon Melson, Tom L. Newby, John and Irma S. Newburn. Lauren Ottaway, Leonard Pataki, Robert B. Sartin, Eric R. Schelin, Susan Shields, Daniel Sprouse, A total of 44 signatures appear on the petitions. James M. Sturdivant, Anne B. Sublett and Betty Outhier Williams A total of 140 signatures appear on the petitions.

1750 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 Program of Events

All events will be held at the Sheraton Hotel unless otherwise specified. Submit meeting room and hospitality suite requests to Craig Combs at [email protected]. Submit meeting program information to Lori Rasmussen at [email protected]. We d n e s d a y , No v e m b e r 13 Th u r s d a y , No v e m b e r 14

OBA Registration...... 8 a.m. – 5 p.m. OBA Registration...... 8 a.m. – 5 p.m. OBA/CLE Plenary Session...... 9 – 11:40 a.m. OBA/CLE Seminar Registration...... 8:30 – 9 a.m. OBA Annual Luncheon for Members, Spouses OBA/CLE Seminar...... 9 a.m. – 5 p.m. and Guests...... Noon – 1:45 p.m. ($35 with meeting registration) See seminar program for speakers and complete agenda Featuring: Health Law Juvenile/Criminal Law Recent Developments Jose Baez Technology The Baez Law Firm Coral Gables OU College of Law & Orlando, Fla. Alumni Reception and Luncheon...... Noon – 1:30 p.m. Skirvin Hotel OCU School of Law Alumni Reception TOPIC: Why Casey Anthony was Found and Luncheon...... Noon – 1:30 p.m. Not Guilty

TU College of Law OBA Sections Present – Alumni Reception The Best of Oklahoma: and Luncheon...... Noon – 1:30 p.m. Art, Music, Food & Wine...... 7 – 9 p.m. (Annual Meeting registration not required for admission) President’s Legal Superheroes Reception...... 7 – 9:30 p.m. (Free for everyone with meeting registration)

Artwork by Nick Hermes

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1751 Fr i d a y , No v e m b e r 15

President’s Breakfast...... 7:30 – 9 a.m. Oklahoma Bar Association ($25 with meeting House of Delegates...... 10 a.m. – Noon registration) Election of Officers & Members of the Board of Governors Oklahoma Bar Association Approval of Title Examination Standards General Assembly...... 9 – 10 a.m. Resolutions

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n August 2013 2014 Children and the Law n October n January Editor: Sandee Coogan Appellate Law Meet Your OBA [email protected] Editor: Emily Duensing Editor: Carol Manning Deadline: May 1, 2014 [email protected] n September Deadline: May 1, 2013 n February Alternate Dispute Resolution Bar Convention n November Editor: Judge Megan Simpson Editor: Carol Manning Raising the Bar: Lawyers [email protected] n October Who Make a Difference Deadline: Oct. 1, 2013 Editor: Melissa DeLacerda Health Care [email protected] n March Editor: Emily Duensing [email protected] Deadline: Aug. 1, 2013 Business Litigation Deadline: May 1, 2014 n December Editor: Mark Ramsey Ethics & Professional [email protected] n November responsibility Deadline: Oct. 1, 2013 President’s Topic Editor: Joe Vorndran Editor: Melissa DeLacerda [email protected] n April [email protected] Deadline: Aug. 1, 2013 Law Day Deadline: Aug. 1, 2014 Editor: Carol Manning n December If you would like to n May Ethics & Professional write an article on Diversity in the Law Responsibility Editor: January Windrix Editor: Judge Allen Welch these topics, contact [email protected] [email protected] the editor. Deadline: Jan. 1, 2014 Deadline: Aug. 1, 2014

1752 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 2013 OBA ANNUAL MEETING REGISTRATION Please complete a separate form for each registrant.

Name ______

Email ______

Badge Name (if different from roster)______Bar No.______

Address ______

City______State______Zip______Phone______

Name of Non-Attorney Guest ______Please change my OBA roster information to the information above. q Yes q No

Check all that apply:

q Judiciary q OBF Past President q OBA Past President REGISTER m BY MAIL with payment or q YLD Officer q YLD Board Member q YLD Past President credit card information to: OBA Annual Meeting q Board Bar Examiner q OBF Fellow P.O. Box 53036 Okla. City, OK 73152 q 2013 OBA Award Winner q Heroes Program volunteer m FAX with credit card information to: q Delegate q Alternate q County Bar President: (405) 416-7092 m ONLINE at www.amokbar.org County ______CANCELLATION POLICY - Full refunds will be given through Nov. 6, 2013. q YES! Register me for the 2013 Annual Meeting, No refunds will be issued after that date. November 13-15 in OKC. Registration fee includes: Wednesday & Thursday continental breakfast in hospitality area President’s Reception • Wednesday & Thursday afternoon break treats in hospitality area OBA Sections Present The Best of Oklahoma: Art, Music, Food & Wine Chocolate convention gift • Vendors Expo

q MEMBER: q $80 through Oct. 21; $85 after Oct. 21...... $ ______

q NEW MEMBER (Admitted after Jan. 1, 2013): q Free through Oct. 21; $25 after Oct. 21....$ ______

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1753 Hotel Accommodations: Fees do not include hotel accommodations. For reservations call Sheraton Hotel at 405-235-2780. Call by Oct. 21 and mention “Oklahoma Bar Association 2013” for a special room rate of $102 per night. To make reservations online, visit www.starwoodmeeting.com/Book/OKBarAssociation2013 For hospitality suites, contact Craig Combs at 405-416-7040 or email: [email protected].

I will be attending the free event(s) included in my registration fee:

q Wednesday President’s Reception q OBA Sections Present The Best of Oklahoma: Art, Music, Food & Wine

I will be attending the following ticketed events in addition to my registration fee: q Wednesday: CLE Multitrack only, ($125 through Oct. 21; $150 after Oct. 21; 6 MCLE hours $25 for new members through Oct. 21; $50 after Oct. 21)...... $ ______q Wed. & Thurs.: CLE Multitrack and Plenary ($175 through Oct. 21; $200 after Oct. 21; 9 MCLE hours $50 for new members through Oct. 21; $75 after Oct. 21)...... $ ______q Thursday: CLE Plenary only, ($75 through Oct. 21; $100 after Oct. 21; 3 MCLE hours $25 for new members through Oct. 21; $50 after Oct. 21)...... $ ______q Thursday: Annual Luncheon (_____ number of tickets @ $35 each)...... $ ______q Friday: President’s Breakfast (_____ number of tickets @ $25 each)...... $ ______

I will be attending the following ticketed events that do NOT require Annual Meeting registration: q Wednesday: Law School Luncheon q OCU q OU q TU ( _____number of tickets @ $35 each)...... $ ______

TOTAL COST (including front and back page of Registration Form $ ______

Questions? Payment Options: Contact Mark Schneidewent at 405-416-7026; 800-522-8065 q Check enclosed: Payable to Oklahoma Bar Association or [email protected]. Credit card: q VISA q Mastercard q Discover q American Express Card #______Exp. Date______

Authorized Signature ______

1754 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 CLE Credit This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 0 hours of mandatory CLE credit, including 0 hour of ethics. Tuition This program is free, but you must register to attend. Contact Renee Montgomery at (405) 416-7029 to register.

Program Planner/Moderator – Jim Calloway, Director, Management Assistance Program, Oklahoma Bar Association Schedule 8:30 a.m. Registration and Continental Breakfast 9:00 The Starting Line Jim Calloway, Director, OBA Management Assistance Program 9:30 It’s All About the Clients Jim Calloway 11:00 Break 11:10 How to Manage-Everything! Jim Calloway 12:00 p.m. Lunch provided by Oklahoma Attorneys Mutual Insurance Company 12:30 Malpractice Insurance and Other Risk Management Issues Phil Fraim, President, Oklahoma Attorneys Mutual Insurance Company 1:00 Professional in the Practice of Law Judge David Lewis, Presiding Judge, Oklahoma Court of Criminal Appeals 1:30 Break 1:40 Trust Accounting and Legal Ethics Gina Hendryx, OBA General Counsel 2:40 Break 2:50 Equipping the Law Office Jim Calloway, Director, OBA Management Assistance Program 3:30 Your Money: Accounting and Tax for Law Firms Ted Blodgett, CPA, CVA, JD, Gray, Blodgett and Company, CPA’s 4:30 Adjourn

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1755 SCHOLARLY ARTICLE

Defending Against Reckless Patent Enforcement Should Not Be an Ordinary Cost of Doing Business By Mitchell “Mick” McCarthy

hen it comes to the particularity with which a patentee must plead a patent infringement lawsuit, an accused Winfringer can be completely deprived of clear notice of what the patentee’s theory is for infringement. That levies a high- ly disproportionate burden on the party accused of infringement: “a patent complaint requires remarkably little information…yet this simple, nonspecific complaint has a nuisance value of a few hundred thousand dollars the minute it is filed and served.”­1

PATENTEES USING THE COURTROOM less asserted more broadly by its owner against TO CHILL LEGITIMATE COMPETITION: a competing design. What a patent covers, the UNSCRUPULOUS AND ILL-ADVISED patent scope, is defined by the language of its This is not an anti-patent piece. Patents have claims. Claims are written in an odd mixture of been and must continue to be crucial to incen- technical and legal jargon that reads to the lay- tivizing the technological advancement and man like a foreign language; we’ll call it “pat- economic growth of American society. A entese.” Patent attorneys use patentese to write patent, arising from Congress’ enumerated claims in the form of extremely long sentences powers,2 grants its owner the legal right to chocked full of terms you don’t hear around prevent others from making or using the the water cooler, like “abuttingly” and “protu- invention covered by the patent, for the term berant.” Terms like those are used to make the of the patent. A time-limited legal right to stop claim broader. To infringe the patent, an alleged some competition is justified because ulti- infringing device or method must include mately it benefits society. Incentivizing inven- every element recited by the language of at tion by a limited monopoly right on what the least one claim in the patent. patent covers encourages investment in research Your client can legitimately compete against and design. A patent creates an incubation a patented invention without infringing the environment suited for commercializing inno- patent by simply not including one of the ele- vation, thereby advancing our society techno- ments of every claim in a competing design. logically and economically. When this is intentionally done it is called a However, too often a weak patent is used by “design-around.” Designing around a patent is its owner to stop legitimate competition. By entirely legal, ethical and theoretically encour- “weak patent” it is meant a patent that covers aged in our free-enterprise economic system a narrow scope of technology but is nonethe- for fostering legitimate competition. In fact, one of the most popular CLE seminars for

1756 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 many years is titled “Designing Around Valid Generally, the Federal Circuit has rejected U.S. Patents.”3 expansive readings of §285, limiting fee shift- ing awards to those cases where, by clear and However, all has not been well lately. This convincing evidence, it was shown that at least article discusses how precarious it has been to one of the following occurred: inequitable con- be the accused infringer in a system where pat- duct before the Patent and Trademark Office entees with weak patents bring nuisance law- (PTO) in obtaining the patent-in-suit; litigation suits to quash legitimate competition. misconduct, or vexatious, unjustified, or other- Patentees have quashed legitimate competi- wise bad faith litigation; filing a frivolous law- 8 tion because patent litigation is extraordinarily suit; or willful infringement. expensive. Justice Story4 called patent litigation Because of that last category, willful infringe- the “sport of kings.” According to statistics ment, the patentee as the prevailing party can published by the American Intellectual Prop- get the case deemed exceptional merely by erty Law Association (AIPLA), the median proving willfulness. In exception to its general cost of patent litigation through the end of treatment, the Federal Circuit has adopted a discovery for controversies involving asserted more expansive reading of §285 to find excep- damages in the range of $1-25 million, is $2.5 tionality by willful infringement where the million for each party. Those same statistics defendant was merely “objectively reckless.” reveal that where the dispute is for less than That is, by showing that the accused infringer $1 million, the litigation cost averages about was or should have been aware of an objec- $600,000 for each side. Leveraging the high tively high likelihood that the patentee would cost of defending against a patent infringe- prevail.9 An accused infringer can have an ment lawsuit, while settled in the safe harbor objectively reasonable argument for nonin- of low pleading requirements, an unscrupu- fringement and still be found to be a willful lous or ill-advised patentee can game the sys- infringer, and hence be on the hook for fee tem to make no fast or easy way out for an shifting. Moreover, when the accused infringer unsuspecting accused infringer.5 Typically, such is found to be a willful infringer, on appeal the an accused infringer is forced to win a round or burden has actually shifted to the district court two just in order to get a meaningful offer on to explain why fee shifting to the prevailing 10 the table, then settle on business judgment patentee should not occur. rather than spend more money for legal justice. In contrast, when the accused infringer is the The situation defeats a strong public interest prevailing party exceptionality has been much that weak patents be reined in or invalidated more difficult to prove; hence, the uneven by complete adjudication.6 playing field. The burden for the prevailing wrongfully accused defendant is that absent Patentees have also quashed legitimate com- litigation misconduct or inequitable conduct petition because patent litigation fee shifting before the PTO, the Federal Circuit has histori- has been decided on an uneven playing field. cally permitted the award of attorney fees to a Statutory relief from the generally followed prevailing defendant only if both 1) the litiga- “American Rule” is entirely defined by the tion is brought in subjective bad faith, and 2) term “exceptional” in the context of the 14 the litigation is objectively baseless.11 words of 35 USC §285: “[t]he court in excep- tional cases may award reasonable attorney There is a presumption that the assertion of fees to the prevailing party.” infringement of a duly granted patent is made in good faith.12 Ultimately, the determination of Determining whether a case is exceptional, infringement must run the course of a two-step and hence eligible for fee shifting under §285, process. In the first step, the patent-in-suit is a two-step process. First, the district court claims are interpreted as a matter of law by the must determine whether the facts of the case district court. In the second step, the alleged are sufficient to warrant deeming the case infringing device is compared to the scope of exceptional. That factual determination is the claim(s) as defined by the district court.13 reviewed for clear error on appeal. After deem- The first step typically requires discovery, pro- ing a case exceptional, the district court must posed claim interpretation briefing by both then determine whether the award of attorney parties for disputed claim terms, and a hearing fees is appropriate. That determination is on the disputed claim terms known as a Mark- reviewed for abuse of discretion on appeal.7 man Hearing. As discussed below, the thresh-

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1757 old requirements of particularity for filing and Figure 1 of the ‘710 patent shows the linkage maintaining a patent infringement lawsuit are assembly in more detail, which includes stroke low. It is possible for an accused infringer to rails 66, 68 connected at lower ends to each of complete discovery and be in receipt of the the foot rails 46, 48: Markman Hearing Order, and yet in trial prep- aration only able to speculate as to what the patentee’s infringement contentions are. An accused infringer who prevails on sum- mary judgment of noninfringement is left to taste the bitter gall of the high and unexpected cost it paid to legitimately compete. The ques- tion in many circles is, under what circum- stances could the district court find preceden- tial indication of clear and convincing evidence of bad faith by a patentee bringing an objec- tively baseless lawsuit and, as is within its discretion, deem the case exceptional and shift fees to the prevailing accused infringer? A couple of recent cases are illustrative of out- comes at the margins; the traditional view fol- lowed by an emerging hopeful view. NO FEE SHIFTING TO PREVAILING ACCUSED INFRINGER – ICON V. OCTANE Icon owns U.S. Patent 6,019,710 (‘710 patent) entitled “Exercising Device with Elliptical Movement.”14 This patented elliptical exercis- ing machine is designed primarily to require less floor space than prior art designs. Figure 3 of the ‘710 patent depicts the elliptical path 108 (‘710 patent FIG. 1) of the forward ends of foot rails 46, 48 upon which a user stands to simulate a running Each stroke rail 66, 68 near its middle is con- motion during exercise: nected to a crank 90, and the upper end of each stroke rail 66, 68 is connected to the frame 12 by a pin 76 that slides up and down in linear movement within a c-shaped channel 84. Icon sued Octane for infringement of the ‘710 patent, the case winding up in the District Court of Minnesota. The only independent claim15 of the ‘710 patent that Icon asserted against Octane is claim 1, which requires in pertinent part that an infringing device include a stroke rail having a top end (“first end” in claim) that is connected to the frame to move in linear reciprocating displacement: 1. An exercise apparatus comprising: (a) a frame configured for resting on a ground surface; (b) a pair of spaced apart foot rails each hav- ing a first end and an opposing second end, each foot rail being configured to receive a corresponding foot of a user;

(‘710 patent FIG. 3)

1758 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 (c) a pair of stroke rails each having a first end and an opposing second end, the sec- ond end of each stroke rail being hingedly When the PTO issues a patent attached to the first end of a correspond- ing foot rail; it often makes a written statement (d) means for connecting each stroke rail to in the record indicating the the frame such that linear reciprocating dis- reasons for determining that the placement of the first end of each stroke rail results in displacement of the second end patent application claimed a of each stroke rail in a substantially ellipti- patentable invention. cal path; and (e) means for selectively varying the size of the substantially elliptical path that the Not to be deterred, Icon waxed eloquently second end of each stroke rail travels.16 for 15 pages in its claim interpretation brief When the PTO issues a patent it often makes that the “linear reciprocating displacement” a written statement in the record indicating the claim term is not necessarily limited to “linear reasons for determining that the patent appli- reciprocating movement,” in direct contradic- cation claimed a patentable invention. Here, tion to the reasoning the Patent Office allowed the PTO made it expressly clear that Icon’s con- the ‘710 patent.18 Ultimately, Icon argued in its nection of the stroke rail to the frame in a way briefing and at the Markman Hearing for a that requires linear reciprocating displacement definition of the claim term “linear reciprocat- of the top end of the stroke rail and elliptical ing displacement” that would broaden it to movement of the bottom end of the stroke rail include the arcuate motion of the alleged was one of the features that made Icon’s ellipti- infringing device. Despite being directly con- cal device patentable: trary to the written prosecution history19 in obtaining the ‘710 patent, Icon requested that The prior art fails to show or teach appli- the Court adopt this definition for the claim cant’s claimed exercise apparatus compris- term “linear reciprocating displacement:” ing a frame; a pair of foot rails having foot supports; a pair of stroke rails each having A change in position from a first point to a one end hingedly connected to a respective second point followed by a change in posi- foot rail and having the opposite end con- tion from the second point back to the first nected to the frame for linear reciprocating point, where the change in position from movement and for producing an elliptical one point to the other results in a net path.17 change in position along a line. Linear recip- rocating displacement does not require move- Icon made no response in the written record ment along a linear path.20 rebutting or otherwise clarifying the PTO’s characterization that the “linear reciprocating The court rejected Icon’s proposed claim con- displacement” term in claim 1 means that the struction in favor of the plain meaning of the top end of the stroke rail performs “linear claim term, as is entirely consistent with the reciprocating movement.” PTO’s interpretation that it requires linear movement.21 That did not deter Icon from sub- Octane found itself defending against patent sequently presenting testimony at trial that the infringement despite the fact that its accused alleged infringing device has a linkage that device does not have a linkage component that satisfies the “linear reciprocating displace- connects the forward end of its foot rail to the ment” requirement of claim 1 of the ‘710 pat- frame; nothing like the stroke rail in the ‘710 ent. However, that testimony was based on patent. Beyond that fact, Octane’s alleged Icon’s technical expert report which relied infringing device does not have any linkage entirely on Icon’s proposed definition for the component whatsoever that moves along a term “linear reciprocating displacement” that linear reciprocating displacement; the only was rejected by the district court. The district possible linkage component that Icon could court granted Octane’s motion to strike the point to in the alleged infringing device moves expert testimony as inadmissible for being con- along a curved (arcuate) path. trary to the district court’s interpretation.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1759 Octane prevailed on summary judgment of tions stemming from the original application noninfringement, in pertinent part due to the filed in 1990 which is now U.S. Patent court’s finding that the alleged infringing 5,163,960. device does not have any structure that per- During prosecution of the patents-in-suit forms the “linear reciprocating displacement” (the ‘290 patent and the ‘753 patent) the origi- requirement of the ‘710 patent. The summary nally filed claims were rejected over U.S. Pat- judgment was affirmed on appeal to the Fed- ent 5,102,417 (‘417 patent) previously issued to eral Circuit.22 Dr. Palmaz, the inventor of the balloon- Octane moved to have the case ruled excep- expandable coronary stent. In distinguishing tional in order to recover its attorney fees and its invention over the ‘417 patent, MarcTec costs. Octane’s predominant argument for fee made written arguments in the PTO prosecu- shifting was that Icon had sued for infringe- tion history record that its invention is a surgi- ment relying on an interpretation of the ‘710 cal device that does not include non-surgical patent that was entirely different than what it devices like the stents that are covered by the knew it had obtained from the PTO. That is, ‘417 patent. MarcTec also amended the claims Octane argued that the “linear reciprocating to add the emphasized language below that displacement” requirement was not an insig- explicitly requires the application of heat, argu- nificant factor in obtaining the ‘710 patent ing in the PTO written record that its invention because the PTO had specifically identified is distinguishable over the ‘417 patent which that as a reason why the ‘710 patent was does not require the application of heat: allowed. Octane argued that Icon’s clearly 1. An implant for implantation in a human unreasonable claim interpretation assertions body comprising: a tubular member hav- inferred bad faith litigation justifying the fee ing a channel and mechanically expand- shifting to the prevailing accused infringer on able upon activation of a delivery mecha- summary judgment. nism from a contracted condition in which The district court strictly applied the Brooks23 the tubular member has a first cross sec- standard and found that Icon neither filed and tional size in a plane perpendicular to a maintained an objectively baseless lawsuit nor longitudinal central axis of the tubular acted with any subjective bad faith.24 member to an expanded condition in which at least a portion of the tubular member On appeal, and in the alternative, Octane has a second cross sectional size in a plane argued that the standard for finding a case perpendicular to the longitudinal central exceptional in these circumstances should be axis of the tubular member, the second lowered to “objectively unreasonable” to rebal- cross sectional size being larger than the ance what Octane argued is an existing imbal- first cross sectional size to thereby lock the ance of power to large companies that bring tubular member against tissue in the human frivolous patent infringement lawsuits to drive body; and a first component bonded to at smaller companies out of business by outspend- least a portion of the tubular member and ing them in court. Octane’s appeal on its motion formed of a heat bondable material that for fees and its call for revisiting the exception- includes a therapeutic agent selected from ality standard was summarily dismissed by the the group consisting of a tissue ingrowth Federal Circuit without comment. promoter and an antibiotic, wherein the FEE SHIFTING TO PREVAILING heat bondable material is non-flowable and ACCUSED INFRINGER – MARCTEC V. non-adherent at room temperature and becomes JOHNSON & JOHNSON flowable, tacky, and adherent upon the applica- tion of heat.26 MarcTec owns U.S. Patent 7,217,290 (‘290 patent) titled “Surgical Devices Containing a 2. A surgical device for implantation in a Heat Bondable Material With a Therapeutic body comprising: an implant, at least a Agent” and U.S. Patent 7,128,753 (‘753 patent) portion of which is expandable; and a poly- entitled “Surgical Devices Having a Polymeric meric material bonded to the implant, wherein Material With a Therapeutic Agent and Meth- the polymeric material is a thermoplastic, ods for Making Same.”25 These patents have includes a therapeutic agent, is non-flowable identical descriptions and drawings, having and non-adherent at room temperature, and issued from the latest patent applications filed becomes flowable, tacky, and adherent upon the in 2002 in a long line of continuation applica- application of heat.27

1760 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 MarcTec sued Cordis (and parent Johnson & speed of sound, and that allegedly creates a Johnson) in the Southern District Court of Illi- condition that increases the temperature of the nois. MarcTec alleged that Cordis’ Cypher stent droplets in a way that cannot be measured — infringed the ‘290 and ‘753 patents, seeking for five millionths (0.000005) of a second. $168 million dollars in damages for just the first two years after issuance of the patents. Cordis prevailed in the district court on sum- mary judgment of noninfringement. The court Cordis thus found itself defending against ruled that it was clearly baseless for MarcTec, patent infringement despite the fact its accused having represented to the Patent Office that the device is a stent — the same technology MarcTec claimed invention excludes stents, to then turn disclaimed in the PTO written record to obtain around and assert the patents-in-suit against the patents-in-suit. Further, the alleged infring- ing device has a polymer/drug coating that is the Cypher stent. The court reasoned that in applied and adheres at room temperature with- this case the patentee had been manifestly out any use of heat, contrary to that required unreasonable in initially assessing infringe- by the claims of the patents-in-suit. ment and then in continuing to assert infringe- ment in court, and that behavior is a proper MarcTec argued in its claim interpretation inference of bad faith.32 Accordingly, Cordis briefing and Markman Hearing that the district also prevailed on its motion to deem the case court should effectively ignore the language it exceptional. Given the finding of exceptionality added to the claims to obtain the patents-in- suit, alleging that it is improper to limit a prod- in view of the facts of the case, the district court uct claim to a particular process of manufac- ruled it is within the discretion of the trial ture (i.e. heat bonding).28 The court rejected judge to assess a reasonable award under 33 MarcTec’s position as legal error and construed §285. The district court thereby awarded the claims to mean what the language plainly Cordis $3,873,865.01 in attorney fees and states, that the alleged infringing device must $809,788.02 in expert fees and expenses. have a bonding that includes the application of Cordis’ summary judgment of noninfringe- heat to infringe. ment and award of fees was affirmed by the Undeterred, MarcTec proceeded to trial by Federal Circuit on appeal.34 Importantly, the blazing a trail of what the district court viewed Federal Circuit found the requisite bad faith for were mischaracterizations of the facts and the exceptionality existed wholly separate from law. The district court criticized MarcTec for any litigation misconduct. That is, the court 29 arguing old law, rejected by Philips, that the affirmed the district court’s fee shifting to the meaning of the claims should not be interpret- defendant by concluding that the facts showed ed in view of the disclosure of the specifica- 30 that MarcTec persisted in continuing a case it tion. MarcTec further argued, in view of its knew it did not have, and could only do so by distinguishing comments in the PTO written mischaracterizing the facts and the law: “After record, that the Cypher stent allegedly isn’t a stent at all but rather it is an “expandable careful consideration and review of the record, intraluminal vascular graft,” in contradiction we agree with the district court that MarcTec’s to admissions of its own witness testimony. proposed claim construction, which ignored The court found MarcTec’s expert testimony the entirety of the specification and the prose- inadmissible where it pointed to processes in cution history, and thus was unsupported by the manufacture of the Cypher stent that occur the intrinsic record, was frivolous and sup- long before or long after the application of ports a finding of bad faith.”35 The court went polymers to the stent, and that have nothing to on to clarify that litigation misconduct formed do with bonding whatsoever. The court a separate and independent basis for the fee expressly criticized MarcTec for presenting shifting to defendants: “In addition to finding such testimony that “did not address the that MarcTec filed an objectively baseless law- requirements of the court’s claim construction suit in bad faith, the district court further found and is irrelevant to the question of in- that MarcTec engaged in litigation misconduct. 31 fringement.” The court also found inadmissi- This finding provides a separate and indepen- ble, as junk science, the testimony of MarcTec’s dent basis for the court’s decision to award expert Dr. Sojka who testified that the alleged attorney fees.”36 infringing device was made by a process that sprayed droplets at speeds approaching the

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1761 WHAT CAN BE GLEANED FROM THESE and complex, and not necessary to an under- CASES AT THE MARGINS? standing of the point here. Suffice it to say, Fee shifting to a prevailing accused infringer even a good number of patent examiners and is entirely within the discretion of the district patent attorneys don’t understand how to court and reviewable on appeal for clear error. properly interpret means plus function claims. Federal Circuit precedence from MarcTec says Notwithstanding Icon’s success in obfuscat- a baseless claim can reveal itself and ripen into ing the means plus function claim, noticeably bad faith during litigation when the patentee missing in Octane’s arguments in the record is continues beyond a point the patentee knows an emphasis that Icon’s infringement conten- or should know there is no infringement. There tion for the “linear reciprocating displacement” are red flags indicating when that path is being requirement was entirely contrary to the mean- trodden. ing of the term in the patent that Icon bargained for with the PTO. Asserting a Different Patent Than What the PTO Issued MarcTec presents a balanced rationale that although a patentee is entitled to its day in In Icon the Federal Circuit stated what the court, the cumulative facts as litigation pro- accused infringer knew the day it was served ceeds can eventually ripen to the point that it with the lawsuit: “If ICON had wanted the claim can rightly be said that the only reason for con- to cover other types of nonlinear motion, such as tinuing the lawsuit is bad faith. The patentee in an arcuate path, it could have simply omitted MarcTec asked the court to ignore explicitly the term “linear” to broaden the claims.”37 recited claim language that was added to the The prosecution history is intrinsic evidence claims to make them allowable over a prior art of what the claims mean. It is part and parcel of patent, along with written arguments in the the entirety of the intrinsic record serving record that the patent-in-suit does not cover a notice to the public, especially to the accused stent. As stated by the MarcTec court with acute infringer, of what the patent covers. Accord- clarity, “having represented to the PTO that the ingly, evidence that the patentee is arguing claims exclude stents in order to obtain allow- either a claim interpretation or an infringement ance, MarcTec cannot turn around in litigation contention that is contrary to the PTO prosecu- and assert the patents-in-suit against the tion history should raise a red flag that doing Cypher stent.”38 so may infer bad faith. A red flag should arise whenever evidence There’s a simple reason why Icon needed the shows that the patentee might be arguing a court to interpret the claim language “linear claim interpretation or infringement conten- reciprocating displacement” to include arcuate tion that is contrary to the prosecution history movement, contrary to the PTO prosecution in the PTO in obtaining the patent-in-suit. history; the broader meaning was necessary for Infringement Contentions That Are Inconsistent Icon to show infringement. We can’t prevent a With the Court’s Claim Definitions patentee from its day in court to argue “linear” means “arcuate.” However, at the end of the The district court is the gatekeeper of the day, dressing that argument up in a big red meaning of the asserted claims, and as such it bow of briefing 15 pages of tenuous arguments must guard against a patentee who loses in the upon more tenuous premises does not change Markman Order but nonetheless subsequently the clear fact that the patentee knew or should argues its asserted meaning anyway. The dis- have known that “linear” is different than “ar- trict court in Icon let its guard down. After los- cuate.” Continuing to press an obviously los- ing its claim construction argument that “linear ing argument just to bleed the accused party of reciprocating displacement” does not require cash can fairly infer bad faith sufficient to shift linear movement, the patentee nonetheless fees to the prevailing accused infringer. used its losing definition as the basis for argu- ing in opposition to summary judgment. The result in Icon can be distinguished because Incredibly, the district court effectively said the “linear reciprocating displacement” lan- “no harm, no foul” in stating the following: guage is part of a “means plus function” type of claim that must properly be interpreted in At the summary judgment state, Icon argued accordance with the guidance of 35 U.S.C. that claim 1(d) was literally infringed because 112(6). Completion of that analysis is lengthy structures in Octane’s machine “convert linear

1762 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 reciprocating displacement at the first end of should be treated equally to the accuser when the actuator-casting stroke rail into a “substan- adjudication is complete and fee shifting is tially elliptical path” at the second end of the decided.41 Defending against reckless patent stroke rail.” In support, Icon relied on page 7 of its enforcement should not be an ordinary cost of expert’s report, which employed the proposed con- doing business, any longer. struction of “linear reciprocating displacement” that was rejected by the Court. Icon now charac- 1. M. Craig Tyler, “Patent Pirates Search for Texas Treasure,” Texas Lawyer, Sept. 20, 2004, at 1, available at goo.gl/3SeKG1. terizes this assertion as “not an argument that 2. U.S. Constitution Article 1 Section 8: “The Congress shall have Octane’s machines had “linear reciprocating Power…To promote the Progress of Science and useful Arts, by secur- ing for limited Times to Authors and Inventors the exclusive Right to displacement” but rather an argument that the their respective Writings and Discoveries….” claim did not require a structure that created 3. http://goo.gl/vMlkBj. linear reciprocating displacement, only a struc- 4. Rudolph Telscher, Patent Litigation: The Sport of Kings; Justice Joseph Story (Sept. 18, 1779 – Sept. 10, 1845) was an American lawyer ture that performed the claimed “connecting” and jurist who served on the U.S. Supreme Court from 1811 to 1845. function.” This assertion suggests Icon did not 5. Except for a few district courts outside Oklahoma that have fol- lowed the ND CA in promulgating patent specific local rules requiring intend to be misleading in its summary judgment an affirmative assertion of infringement contentions by a date certain; argument, but merely to reargue a point that had see Travis Jensen’s summary at www.localpatentrules.com. been previously decided against it. Although argu- 6. See Lear, Inc. v. Adkins, 395 U.S. 653, 670-71 (1969); Blounder- Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, ably confused and repetitive, and ultimately unavail- 343, 350 (1971); Brulotte v. Thys Co., 379 U.S. 29, 32-33 (1946); Morton ing, Icon’s summary judgment argument was not Salt Co. v. G.S. Supergerm Co., 314 U.S. 488, 493 (1942). 39 7. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1460 (Fed. Cir. 1998) objectively baseless.” (en banc). 8. Epcon Gas Sys., Inc. v. Bauer Compressors, Inc., 279 F.3d 1022, 1034 The district court in Icon left open the idea (Fed. Cir. 2002). that there could be some objectively reasonable 9. In re Seagate Technology, LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007) basis for the patentee to present its infringe- (en banc). 10. Wedgetail Ltd. v. Huddleston Deluxe, Inc., 576 F.3d 1302, 1305-06 ment contentions upon a claim interpretation (Fed. Cir. 2009). that the court had already rejected. 11. Brooks Furniture Mfg., Inc. v. Dutailer Int’l., Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005). To the contrary, in MarcTec the Federal Cir- 12. Springs Willow Fashions, LP v. Novo Indus., L.P., 323 F.3d 989, 999 (Fed. Cir. 2003). cuit commended the district court for standing 13. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. guard over its claim interpretations as the mat- 1995). 14. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 2012 WL ter of law that they are, such as in explaining its 5237021 (Fed. Cir. 2012). reasoning for affirming the fee shifting to the 15. By law, if the alleged infringing device does not infringe an prevailing accused infringer: independent claim it also does not infringe any other claim depending from the independent claim. 16. ‘710 patent claim 1 (emphasis added). The court found that, even after it had evi- 17. Excerpt of the Notice of Allowance in Icon’s patent application dence that the Cypher stent’s coating is for the ‘710 patent (emphases added). applied at room temperature and does not 18. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 9-cv-319, 2011 WL 2457914 (D. Minn 2011), Icon’s Claim Construction Brief [doc. 131] bond using heat, MarcTec continued to ppg. 15-31. pursue its frivolous case “by relying on mis- 19. The “prosecution history” is the publicly available written record of correspondence between the patent applicant and the PTO in characterizations of the claim construction obtaining the patent-in-suit. 40 adopted by this Court….” 20. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 9-cv-319, 2011 WL 2457914 (D. Minn 2011), Markman Order [doc. 144] pg. 8 (empha- The court should recognize the red flag wav- sis added). ing whenever evidence shows that the paten- 21. Id. pg. 9. 22. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 2012 WL tee is arguing an infringement contention that 5237021 (Fed. Cir. 2012). is contrary to the court’s claim interpretation. 23. Note 11. 24. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 9-cv-319, 2011 LEVEL THE PLAYING FIELD WL 2457914 (D. Minn) Order [doc. 220]. 25. MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907 (Fed. Cir. The uncertainty and concomitant unfair com- 2012). 26. ‘290 patent claim 1 (emphasis added). petitive advantage to an unscrupulous or ill- 27. ‘753 patent claim 1 (emphases added). advised patentee will remain burdensome to 28. MarcTec, LLC v. Johnson & Johnson 7-cv-825, 2010 WL 680490 (S.D. Ill. 2010) Markman Order [doc. 175] pg. 24. parties accused of infringement until some- 29. Philips v. AWH Corp., 415 F.3d 1303, 1320-21 (Fed. Cir. 2005)(en thing happens to make it more predictable banc). whether the outcome of a case is more likely 30. The “specification” generally includes everything in the origi- nally filed patent application. akin to Icon or MarcTec. Your clients, people 31. MarcTec, LLC v. Johnson & Johnson, 7-cv-825, 2010 WL 680490 who respect the technology rights of others para. 20 (S.D. Ill. 2010). 32. MarcTec, LLC v. Johnson & Johnson, 7-cv-825, 2010 WL 680490 and compete legitimately but nonetheless find para. 33 (S.D. Ill. 2010); citing Eltech Sys. Corp. v. PPG Indus., Inc., 903 themselves accused of patent infringement, F.2d 805, 811 (Fed. Cir. 1990).

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1763 33. MarcTec, LLC v. Johnson & Johnson, 7-cv-825, 2010 WL 680490 para. 37 (S.D. Ill. 2010); citing Takeda Chem. Indus., Ltd. v. Mylan Labs., About The Author Inc., 549 F.3d 1381, 1385 (Fed. Cir. 2008). 34. MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907 (Fed. Cir. 2012). Mitchell “Mick” McCarthy is a 35. Id. at 918. registered patent attorney concen- 36. Id. at 919. 37. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 2012 WL trating in intellectual property 5237021, *4 (Fed. Cir. 2012). procurement and commercializa- 38. MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 915 (Fed. Cir. 2012). tion. He has lived most of his life 39. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 9-cv-319, 2011 in the Oklahoma City metro area. WL 2457914 (D. Minn. 2011), Order on Fees [doc. 220] (emphases added). He has 20 years of experience as a 40. Note 38 (emphasis added). licensed patent practitioner, and 41. This issue is squarely on appeal in Media Queue, LLC v. Netflix, 13 prior years of hands-on engineering experience in Inc., 2010-1199, -1344 (Fed. Cir.). manufacturing and power generation. He started McCa- rthy Law Group in 2007.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Fifth Judicial District, Office 1 Comanche County This vacancy is due to the retirement of the Honorable Allen McCall, effective October 1, 2013. To be appointed to the office of District Judge one must be a registered voter of the respective judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net under the link to Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applications must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, September 27, 2013. If applications are mailed, they must be postmarked by midnight, September 27, 2013. Heather Burrage, Chairman Oklahoma Judicial Nominating Commission

1764 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 WELCOME.

The Holland Hall experience is best Middle School Tours understood by visiting the campus. Families Tuesday, October 16, 2012 (8:30 a.m.) are invited and encouraged to attend any Wednesday, November 7, 2012 (10:00 a.m.) of the events listed below. Contact the Wednesday, January 9, 2013 (10:00 a.m.) Admission Team at (918) 481-1111. Tuesday, February 19, 2013 (10:00 a.m.) Tuesday, March 26, 2013 (8:30 a.m.) Primary School Tours Thursday, October 11, 2012 (8:30 a.m.) Upper School Tours Tuesday, November 6, 2012 (9:30 a.m.) (All tours begin at 8:00 a.m.) Wednesday, January 23, 2013 (8:30 a.m.) Tuesday, October 9, 2012 Tuesday, February 19, 2013 (8:30 a.m.) Wednesday, November 7, 2012 Tuesday, March 26, 2013 (9:30 a.m.) Wednesday, January 9, 2013 Wednesday, April 10, 2013 (8:30 a.m.) Wednesday, February 13, 2013 Thursday, May 9, 2013 (9:30 a.m.) Tuesday, March 28, 2013

hollandhall.org

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1765 SCHOLARLY ARTICLE

Oklahoma Supreme Court Addresses the Role and Importance of Good Faith in Commercial Transactions By Alvin C. Harrell

n Oct. 30, 2012, the Oklahoma Supreme Court decided a significant case1 addressing Uniform Commercial Code O(UCC)2 Articles 2 and 9 (and contract-related good faith issues), in the context of an unpaid sale of goods to an insolvent buyer whose rights were subject to a prior security interest. The focal point of the decision is UCC section 2-403, which gives pri- ority to the security interest (as against the unpaid seller) on these facts, if the secured party acted in good faith. This article ana- lyzes the UCC issues presented in this case.

Section 2-403 is an important UCC provi- FACTS AND ARGUMENTS IN THE BANK sion, illustrating an intersection of issues from OF BEAVER CITY CASE UCC Articles 2 and 9 and resolving questions Bank of Beaver City involved a fairly common that periodically arise in litigation in Oklaho- 3 scenario in which the Bank of Beaver City (the ma and elsewhere. Section 2-403 is an Article bank) financed a cattle operation, Lucky Moon 2 version of a fundamental principle that runs Land and Livestock, Inc. (Lucky, or the debtor), throughout the UCC: the protection of inno- 4 secured by a UCC Article 9 security interest in cent purchasers. all of the debtor’s existing and after-acquired Basically, section 2-403 recognizes three types cattle.12 Barretts’ Livestock, Inc. (Barretts’, or of sales of goods transactions in which an inno- the seller) sold cattle to Lucky on a deferred cent purchaser (including a secured party) or payment basis (the cattle were delivered to buyer who meets the stated qualifications5 can Lucky, with payment due a few weeks later).13 obtain clear title to the goods being purchased When the cattle were sold and delivered to (i.e., ownership free of adverse claims) even Lucky, the debtor (Lucky) acquired rights in though the seller did not have clear title.6 The the cattle as collateral subject to the after-ac- three scenarios are: 1) a transaction of purchase;7 quired property security interest of the bank.14 2) a seller with voidable title;8 and 3) an entrust- Under the general first-in-time priority rule ment by the previous owner to a merchant governing Article 9 security interests, the bank’s seller who deals in goods of that kind.9 In its prior perfected security interest gave it priority Oct. 30, 2012, decision in Bank of Beaver City,10 over the unsecured claim of Barretts’ to pay- the Oklahoma Supreme Court issued a split ment.15 In addition, the specific rules governing decision dealing with the transaction of pur- transactions of purchase and voidable title at chase and voidable title issues governed by section 2-403(1) and limitations on the seller’s section 2-403(1).11 right to reclaim at section 2-702 make clear that

1766 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 a GFP takes priority over the seller’s right to any claims against those rights by Barretts’ as reclaim.16 the seller who conveyed voidable title in a transaction of purchase.24 Thus, section 2-403(1) In Bank of Beaver City, Barretts’ argued that was crucial in determining the bank’s priority this result did not apply because: 1) the bank as against the seller’s right to reclaim.25 did not take its security interest in good faith (as required for GFP status under sections GOOD FAITH REQUIREMENT 1-201(b)(20) and 2-403(1)); and 2) the bank did This raised the ultimate issue in the Bank of not have priority under Article 9 because this Beaver City case: Whether the bank acted in lack of good faith prevented the bank from good faith so as to be a GFP under section acquiring rights in the collateral under section 2-403(1) when it acquired its security interest.26 2-403(1) sufficient for the bank’s security inter- Barretts’ argued that the bank failed to meet est to attach.17 The latter argument is doomed the test of good faith because it was “intimately to failure, given that Article 9 “rights in the col- involved” in the debtor’s operations, e.g., being lateral” (as required for attachment of the secu- aware of dishonored checks drawn by the rity interest under section 9-203) do not require debtor (including those drawn to Barretts’)27 that the secured party (here the bank) act in and knowing of the debtor’s “deteriorating good faith or prevail as a GFP under section financial condition.”28 However, the majority 2-403(1). Attachment of a security interest is opinion rejected this argument and appropri- governed by Article 9 section 9-203 and has ately distinguished these relatively routine nothing to do with good faith or section 2-403. matters from cases like Monsanto Co. v. Heller,29 It requires only that the bank’s debtor have where the bank “had a deep relationship with rights in the collateral, which clearly was the its debtor . . . and exercised considerable con- case here. trol over its business practices.”30 Thus, in Bank Moreover, the priority rules of Article 9 mean of Beaver City the majority held that the bank that a perfected security interest will be enforce- was a GFP entitled to priority over the seller’s able against the debtor and third-party claims right to reclaim, pursuant to section 2-403(1). such as unperfected liens and security inter- In one of the most important aspects of the ests, even though the debtor may be subject to Bank of Beaver City majority opinion, the court those claims and those claims may prevent the observed that the bank owed a duty of good debtor from having clear title.18 All that is faith only to the party with whom it dealt (the required in order for a security interest to debtor), and not to a third party (such as “attach” is for the debtor to have rights in the Barretts’).31 This is inherent in the UCC defini- collateral;19 perfection then provides the secu- tion of good faith in UCC Article 1 section rity interest with priority over most subsequent 1-201(b)(20), which requires “reasonable com- and unperfected claims.20 Section 2-403 and the mercial standards of fair dealing,” and is also parties’ good faith generally are irrelevant to reflected in the substantive rule at UCC section this analysis.21 1-304: “Every contract or duty within [the SELLER’S RIGHT TO RECLAIM UCC] imposes an obligation of good faith in its performance and enforcement.”32 By its terms, However, the Bank of Beaver City scenario this duty of “fair dealing” logically can extend contains the seeds of another argument, also only to one with whom a person contractually raised in the case: Since Barretts’ was asserting deals.33 It should be clear, therefore, that a per- a seller’s right to reclaim under section 2-702,22 son cannot owe a duty of good faith to the the debtor’s ownership of the goods was poten- entire world,34 but only to those with whom the tially subject to this right; and since the bank’s person deals (owing them a duty to act hon- security interest extended only to the debtor’ estly and observe reasonable commercial stan- rights in the collateral, absent application of dards of fair dealing).35 section 2-403(1) the security interest would attach only to the debtor’s limited ownership Thus, in Bank of Beaver City, the bank owed rights. Thus, absent section 2-403(1) the bank no duty to Barretts’, and knowledge by the could “foreclose” against the debtor’s interest bank that its debtor was experiencing financial but would remain subject to the seller’s statu- difficulties or wrote checks to Barretts’ on tory right to reclaim the goods.23 However, if insufficient funds was not unfair to its debtor the bank is a GFP for purposes of section (Lucky), and did not breach any duty of good 2-403(1) it will take the debtor’s rights free of faith.36 The bank thus qualified as a GFP under

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1767 section 2-403(1) and took free of the claims of be remanded to the trier of fact.46 This dissent Barretts’ as an unpaid seller.37 cites both the uniform text and Oklahoma CONCURRING OPINION Comments to UCC Article 9 (stating that the Oklahoma comments “are even more in- Bank of Beaver City was a split decision of the structive”).47 However, if anything, these com- Oklahoma Supreme Court, with the majority ments (and basic contract law) support the opinion written by Justice Kauger and a con- majority position that the contractual duty of curring opinion by Justice Combs (also joined good faith (including “fair dealing”) runs only by Chief Justice Taylor and Justice Kauger) to the person with whom one is dealing contrac- expressing concern as to how Barretts’ could tually, and not to third parties or the world at protect itself in these circumstances.38 The con- large.48 Moreover, the legal standard of good curring opinion notes (perhaps with more cre- faith is an issue of law, not fact; if, on the alleged dence than is deserved) the argument of Bar- facts, the bank owed no duty to Barretts’, then retts’ that it could not pass title to the debtor facts relating to the bank’s treatment of Barretts’ (Lucky) without receiving payment in full interests are irrelevant and there is nothing for (despite consummation of the sale of goods the trier of fact to reconsider. and the delivery of possession — see UCC sec- tion 2-401), and therefore the bank’s security This dissent states that there are remaining interest did not attach.39 However much one issues of fact to be resolved, namely whether might sympathize with the plight of Barretts’, the bank “is in bed with the debtor, . . . through this argument is without merit (otherwise a knowledge of [the debtor’s] poor financial con- buyer would not obtain ownership in a credit dition and that [the debtor was] selling cattle sale) and does not deserve even a hint of out of trust [and had] numerous overdraft 49 approval in a Supreme Court opinion.40 As to checks . . . .” The dissent emphasizes that the how Barretts’ could protect itself, the oddball bank honored numerous checks drawn on and potentially troublesome non-uniform insufficient funds (overdraft checks) in the amendment to section 2-403 that was enacted past, even with knowledge of the above facts, in Colorado, cited with approval in the con- and then suddenly began to “dishonor checks curring opinion,41 simply creates a secret lien to the livestock company in an attempt to in favor of certain sellers. It is unnecessary in increase its own collateral and financial view of the seller’s ability to perfect a pur- positions.”50 The dissent then concludes: “If the chase-money security interest (PMSI) under bank did act in the way described, they owe a Article 9, which (in contrast to a secret lien) duty to the 3rd party.”51 42 provides full notice to the world. It is not The problem is that there is no basis for that clear why a statutory secret lien would be pref- conclusion in section 2-403(1) (as alleged in the erable as a matter of public policy. case), and no basis elsewhere in the law absent The concurring opinion indicates that, i.e., a more comprehensive control of the debtor some kind of secret lien is necessary to protect than that stated in the alleged facts, e.g., control the seller’s “free market enterprise” because that effectively converts the bank into the otherwise the unsecured credit seller may not debtor’s partner.52 Moreover, the stated facts get paid. But this is a risk assumed by all unse- have little or nothing to do with the duty of cured credit sellers, and other creditors, in any good faith owed by the bank (the relevant issue type of transaction.43 There is no apparent rea- under section 2-403), which as noted runs only son to create another special exception, essen- to the debtor in this scenario,53 provides no tially in the form a secret lien, for this class of basis for imposing a duty to third persons or transactions, especially when public notice in the world at large, and requires only that the the form of a PMSI is so readily available.44 This bank treat its customer honestly and fairly.54 In would be a step backwards, toward a balkan- this context, the bank was perfectly within its ized legal system of the type that the UCC and rights to protect itself (indeed had an obliga- Article 9 so importantly replaced.45 tion to do so), as any prudent person would.55 Even if the worst that Barretts’ asserted is true, JUSTICE WATTS’ DISSENT the bank would not have breached any duty of A separate dissenting opinion (written by good faith and the outcome of the case under Justice Watts and joined by Justices Colbert section 2-403(1) would not change. It was Bar- and Reif) characterized the issue in Bank of Bea- retts’, not the bank, which had a duty to protect ver City as one of “contested facts” that should the interests of Barretts’.56

1768 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 JUSTICE GURICH’S DISSENT standards, or failed to give value to the debtor,66 but cannot claim that these duties are owed to An additional dissent was written by Justice the third party (absent privity or some equiva- Gurich, also joined by Vice Chief Justice Col- lent, not alleged here).67 In other words, Bar- bert and Justice Reif.57 This dissent directly retts’ cannot logically assert that the bank rejects the holding of the majority that the good owed or breached a duty of good faith to Bar- faith requirement of section 2-403 does not retts’, or that the bank’s duty of good faith to extend to third parties, stating that “[s]uch a the debtor required that the bank treat Barretts’ holding is not supported by the [UCC or] case fairly. But if the bank breached its duty of good law interpreting the [UCC].”58 All of the cases faith to the debtor, Barretts’ can assert this in cited in support of this proposition were decid- contesting the bank’s claim to priority as a GFP ed under the “old” definition of good faith under section 2-403(1). (requiring only honesty fact, prior to enact- ment of the 2001 revisions to the uniform text Thus, it is not correct to conclude, as in the of UCC Article 1 adding the “fair dealing” Gurich dissent, that the majority decision in requirement).59 Whatever the shortcomings of Bank of Beaver City “bars all future third parties the new definition,60 it does make more clear from defeating a secured lender’s interest that the duty of good faith runs only to those under [section] 2-403 regardless of how egre- with whom one deals.61 giously the lender has acted.”68 Logically, it must be so; otherwise every per- CONCLUSION son in the world could sue every other person In the final analysis, the majority stated the 62 Bank of for acting unfairly. Just as the debtor in matter succinctly in observing that “a lender’s Beaver City could not assert the bank’s rights as 63 duty of good faith [does] not require that it be a defense to its liability to Barretts’, so also ignorant of third party claims . . . or [that it] Barretts’ cannot assert claims arising from its continue financing a doomed business transaction with the debtor as the basis for lia- 69 64 enterprise,” and holding that “[t]he good faith bility of the bank. requirement does not extend to unpaid sellers Who then can assert rights based on a lack of such as Barretts.’”70 It is always difficult to allo- good faith under section 2-403(1)? The answer cate losses between innocent parties (a common is that a reclaiming seller can assert priority occurrence when a debtor becomes insolvent), over a competing purchaser under section but in this instance the law seems clear and it is 2-403(1) (based on a lack of the competing pur- important for future transactions that this con- chaser’s good faith or other requisites for GFP tinue to be the case. status), but only to the extent the requisites for 1. Bank of Beaver City v. Barretts’ Livestock, Inc., and Tri-State Feeders, GFP status as required in section 2-403(1) are Inc. v. Morris, 2012 OK 89, 295 P.3d, 1088, 2012 WL 5334761 (Okla. S.Ct.). not met by the competing purchaser; and those As noted in this article, the court issued four opinions in the case: A requisites arise only in the relation between the majority opinion, a concurring opinion, and two dissenting opinions. 2. The Oklahoma UCC is codified at Okla. Stat. Ann. tit. 12A purchaser (here the bank) and its debtor (here, §§1-101 – 11-107 (2004, 1998, 2001 & 2013 Supp.). For ease of reference, Lucky). On the facts of Bank of Beaver City, Bar- this article generally references the uniform text of the UCC, prior to the 2010 uniform text amendments. At this writing, Oklahoma has not yet retts’ can argue against the bank’s good faith enacted the 2010 uniform text amendments. Regarding the 2010 amend- and thus its status as a GFP, but only on the ments, see generally Alvin C. Harrell, “The 2010 Amendments to the Uniform Text of Article 9,” 65 Consumer Fin. L. Q. Rep. 138 (2011). basis that the bank breached its duty of good 3. For a sampling of previous cases, see, e.g., State v. Skaggs, 140 faith to the debtor, not that the bank owed such P.3d 576 (Okla. Civ. App. 2006), and the listing of pertinent cases in Justice Gurich’s dissenting opinion in Bank of Beaver City, 295 P.3d at a duty to Barretts’. 1095, n.2, 2012 WL 5334761, at *6, n.2; see also infra note 57 and accom- panying text. In effect, section 2-403(1) protects the pur- 4. Sometimes this protection runs to a good faith purchaser for chaser (here, the bank) in a transaction such as value (GFP) and sometimes to a buyer in ordinary course of business (BIOCOB). Cf., e.g., UCC §2-403(1), (2). Other examples of similar UCC that in Bank of Beaver City, but only if the pur- protections include Article 3 §§3-305 and 3-306 (protecting a holder in chaser acted in good faith (and gave value) to due course) and Article 9 §9-320 (protecting a BIOCOB). The distinc- the other party (here the debtor) in the “pur- tions between a GFP and BIOCOB can be significant because, e.g., a UCC Article 9 secured party can be a GFP but not a BIOCOB. See, e.g., 65 chase” transaction. Third parties (such as a definitions at UCC §1-201(b) (9), (29), (30); infra note 8. reclaiming seller) may attack the purchaser’s 5. E.g., as either a GFP or a BIOCOB in the stated circumstances. See supra note 4. GFP status when that is relevant to their prior- 6. E.g., due to claims against the seller by a prior, unpaid seller as ity, e.g., on grounds that the purchaser acted in Bank of Beaver City. See UCC §2-403(1). This is an exception to the general rule, in contracts and property law, that a transferee takes only dishonestly toward the debtor, or treated the the rights of the transferor. See, e.g., id. (stating the general rule before debtor unfairly in the context of commercial providing the three exceptions).

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1769 7. Id. This runs in favor of a GFP. Id. 32. UCC §§1-201(b)(20) & 1-304. See also id. §1-304 cmt. 1. 8. Id. This also runs in favor of a GFP. Id. It is clear that a secured 33. Obviously a person cannot deal, fairly or unfairly, with a per- party can be a purchaser (see UCC §1-201 (b) (29), (30)) and therefore a son as to whom one has no dealings. This basic point is sometimes, but GFP if the security interest is taken in good faith and for value. Regard- not always, recognized in the case law. See, e.g., Any Kind Checks Cashed, ing value see UCC §1-204. Inc. v. Talcott, 830 So.2d 160 (D. Ct. App. Fla. 2002) (after correctly citing 9. UCC §2-403(2). This protects only a BIOCOB. Id. The Bank of UCC Article 3 §3-103 cmt. 4 as distinguishing between good faith Beaver City case did not involve this scenario. (including fair dealing) and ordinary care, and noting that fair dealing 10. 295 P.3d 1088, 2012 WL 5334761. raises the question: “fairness to whom[?],” the court presented an 11. As noted below, these issues in the case are confused somewhat analysis that seems to dart back-and-forth among the concepts of good by an additional allegation that the bank’s security interest did not faith, notice, and ordinary care without recognizing any distinctions, attach under UCC §9-203. See infra this text and notes 17-23 & 39. ultimately “taking a global view” that apparently contemplates a con- 12. Bank of Beaver City, 295 P.3d at 1089-90, ¶¶4 & 5, 2012 WL tractual duty of fairness running in favor of the entire world); Maine 5334761, at *1, ¶¶4 & 5. A security interest in after-acquired property is Family Fed. Credit Union v. Sun Life Assurance Co. of Canada, 727 A.2d 335 expressly permitted by UCC §9-204. (Me. 1999) (cited with approval in Talcott), is another well-known case 13. Bank of Beaver City, 295 P.3d at 1089-90, ¶¶4 & 5, 2012 WL that makes essentially the same error. See also infra notes 34 & 48 - 49. 5334761, at *1, ¶¶4 & 5. 34. An idea that is absurd and unworkable on its face, and can lead 14. See UCC Article 9 §§9-203 & 9-204; (attachment of the security to confused reasoning such as that in the cases cited supra at note 33. interest); UCC §2-401 (passage of title to the buyer). See also infra notes Such reasoning defies logic (and the law). After all, the basis for a duty 17 & 25. of good faith is a contract, and the law requires privity as a prerequisite 15. See id. §§9-201, 9-202, 9-317 & 9-322 (UCC Article 9 priorities); to a claim for breach of a duty arising from contract. See, e.g., supra UCC §2-703 (seller’s remedies). notes 32-33 & infra notes 48-49. 16. See: UCC §2-403(1); id. §2-702(3). A secured party (here, the It should be emphasized, however, that the priority rights deter- bank) can qualify as a GFP. See supra note 4. mined under §2-403 are not limited to those with privity. Section 2-403 17. See Bank of Beaver City, 295 P.3d at 1090, ¶7, 2012 WL 5334761, at resolves the priorities of competing claims between parties not in priv- *2, ¶7 (citing UCC §§1-201(20), 2-403, 9-203 & 9-308). Note that the ity with each other, just like the other UCC priority rules (e.g., at requirement for attachment of the security interest is that the debtor, §§9-317 & 9-322). However, the §2-403 priorities depend in part on GFP not the secured party, have “rights in the collateral.” Moreover, attach- status, and that status must be established as between parties in priv- ment is governed by UCC Article 9, not §2-403. See UCC §9-203(b)(2). ity with each other. See, e.g., supra notes 32 - 33; and discussion of Jus- Clearly in this case the debtor acquired rights in the collateral in buy- tice Gurich’s dissent, infra. ing the cattle from Barretts’. See UCC §2-401; infra note 25. However, There is a separate issue, as to whether a breach of the duty of good see further discussion of this issue below, at notes 22 - 25 and accompa- faith can constitute an independent claim. There is a split of authority nying text. on this issue, but the majority and better view is no. See, e.g., Jennifer 18. See, e.g., UCC §§9-317 & 9-322. This is a basic point that is not S. Martin, “Sales,” 66 Bus. Law. 1083, 1094 n. 97 (2010) (citing a minor- always made clear in some case law. See, e.g., Alvin C. Harrell, “Secu- ity view case and contrasting UCC §1-304 cmt. 1 and PEB Commentary rity Interest v. Non-Code Interest: An Analysis of the Ramifications of No. 10 (Feb. 10, 1994)). As noted in the Oklahoma Code Comment to Utica National Bank & Trust v. Associated Producers,” 6 Okla. City Univ. L. §1-304 (Okla. Stat. tit. 12A §1-304), revised section 1-304 is intended to Rev. 519 (1981). reject the minority view and cases like Beshara v. Southern National 19. Along with meeting the other requirements for attachment at Bank, 928 P.2d 280 (Okla. S.Ct. 1996). In any event, this issue is not UCC §9-203. These other requirements are not implicated here. implicated in the Bank of Beaver City case. In the context of a holder in 20. See UCC §§9-203, & 9-317 – 9-332. due course (HDC) issue under UCC Article 3, of course, HDC status 21. This is an intentional policy choice in the UCC, designed to can be defeated by reason of the holder having notice of a claim or avoid subjective considerations that could require a trial to resolve defense under UCC §3-302; but that is yet another issue (not requiring every priority dispute if good faith was an issue (a danger illustrated privity) and not involved in a determination of good faith under in the Bank of Beaver City case). There are, of course, exceptions, where §2-403. See generally Fred H. Miller & Alvin C. Harrell, The Law of Mod- a resolution of priorities based on good faith is appropriate, as in ern Payment Systems and Notes ¶3.03 (2002 & 2008 Supp.). §2-403(1). In addition to §2-403, these exceptions include instances 35. See supra notes 32 - 34. governed by UCC §§9-330 – 9-332, e.g., where holder in due course 36. Bank of Beaver City, 295 P.3d at 1092-93, ¶¶12-15, 2012 WL status or a lack of collusion is relevant to priority. These other issues 5334761, at *3-*4, ¶¶12 - 15 (citing, e.g., Shell Oil Co. v. Mills Oil Co., Inc., are not implicated here. 717 F.2d 208 (5th Cir. 1983)). See, e.g., UCC Article 1 §1-201, cmt. 20. See 22. This is sometimes a difficult assertion to sustain, due to the also supra notes 32 - 34 & infra notes 47 - 48. This is a very different limits of §2-702. The remainder of this discussion will assume those scenario from one where a secured party exercises control over its requirements were met, as appropriate for a summary judgment debtor to the detriment of other creditors. But there was no apparent motion. If not, however, Barretts’ would have standing only as a gen- evidence or allegations of that here. See, e.g., infra note 49. eral, unsecured creditor. 37. Bank of Beaver City, 295 P.3d at 1093, ¶17, 2012 WL 5334761, at 23. See UCC §2-702. Note that, in this instance, the right to reclaim *4, ¶17. offers rights superior to a lien or security interest, essentially on the 38. Bank of Beaver City, 295 P.3d at 1094, ¶¶1 - 3, 2012 WL 5334761, theory that the debtor’s rights in the collateral (and therefore also the at *4, ¶¶1 - 3 (Combs, J., joined by Taylor, C.J. & Kauger, J., concurring). security interest) are subject to the seller’s right to reclaim, which oth- The simple answer, it would seem, is: Do not sell goods on unsecured erwise would be subordinate to the bank’s prior, perfected security credit to an insolvent buyer; taking a purchase-money security interest interest under Article 9 §§9-201, 9-202 & §9-317; under UCC Article 9 seems a better idea. See infra notes 43 - 44. There 24. See UCC §2-403(1); Bank of Beaver City, 295 P.3d at 1091 ¶8, 2012 were also two dissents, as noted below. WL 5334761, at *2, ¶8. 39. Bank of Beaver City, 295 P.3d at 1094 ¶¶1-3, 2012 WL 5334761, at 25. Note again that this is a question as to the priority of the bank *4, ¶¶1 - 3. as a GFP under §2-403(1), not a question as to attachment of the bank’s 40. It should be emphasized that the concurring opinion does not security interest under §9-203. Thus, arguments that the bank’s secu- suggest approval of this argument; it merely cites it in expressing con- rity interest did not attach are misplaced. See also supra note 17. cern for the plight of Barretts’. Id. 26. Bank of Beaver City, 295 P.3d at 1091 ¶9, 2012 WL 5334761, at *2, 41. Id. ¶9. 42. See infra note 43. 27. It can be noted here that this is not an unusual experience in the 43. The majority opinion cites Matter of Samuels & Co., Inc., 526 F.2d banking business. See, e.g., Alvin C. Harrell, “Some Surprising New 1238 (5th Cir. 1976), a well-known case noting that the original UCC (and Old) Perspectives on Check-Kiting,” 57 Consumer Fin. L.Q. Rep. definition of good faith for purposes of a GFP (old UCC §1-201(19), 214 (2003) (noting the commonality of checking account overdrafts due (33) & (44)) “did not expressly or impliedly include lack of knowledge to customers running short of funds, and some confusion about these of third-party claims as an element.” Bank of Beaver City, 295 P.3d at issues within the legal community). 1092, ¶13 at nn.15 & 18-19, 2012 WL 5334761, at *4, ¶13 at nn.15 & 18-19 28. Once again it can be noted that this is not unusual. Id. (quoting Samuels, 526 F.2d at 1243-44). Cf. current UCC §1-201(b)(20) 29. 449 N.E. 2d 993 (Ill. App. 1903), noted in Bank of Beaver City, 295 (additionally requiring “observance of reasonable commercial stan- P. 3d at 1091, ¶10, 2012 WL 5334761, at *3, ¶10. dards of fair dealing” — but not a lack of notice; see supra notes 32-34). 30. Bank of Beaver City, 295 P.3d at 1091-92, ¶10, 2012 WL 5334761, Samuels led Congress to enact the federal Packers and Stockyards Act, at *3, ¶10 (citing Monsanto, 449 N.E. 2d at 994-95). Pub. L. No. 94-410, §8, 90 Stat. 1251 (1976), codified as amended at 7 31. Id. at ¶¶11-15, 2012 WL 5334761, at *3, ¶11-15. See also infra this U.S.C. §§196 (livestock) & 197 (poultry), effectively overruling Samuels text and notes 32 - 34 & 48 - 49. by creating a statutory trust for certain sellers of livestock and poultry.

1770 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 Subsequently, the Perishable Agricultural Commodities Act, 7 U.S.C. 52. As noted, there was no apparent evidence of control in this §499e, did the same for certain agricultural commodities; and Okla- case. See supra notes 36 & 49. homa followed suit with a state statutory trust for sellers of dairy 53. See supra this text and notes 32-34 & 48 - 49. products, in Okla. Stat. tit. 2 §§751-756. See also Harrell & Miller, infra 54. See, e.g., id. note 45, at 597-98. Parties interested in these issues also should con- 55. An analogy would be a check-kiting scenario. See, e.g., Harrell, sider the impact of the Federal Food Security Act of 1985, Pub. L. No. supra note 27; Miller & Harrell, supra note 34, at 126 - 27. 99-198, Tit. XIII, §1324 (codified as amended at 7 U.S.C. §1631). See also 56. Which Barretts’ could easily have done, as even the dissent Harrell & Miller, infra note 45, at 602-05; see generally: Drew L. Kershen admits. See Bank of Beaver City, 295 P.3d at 1095, ¶5, 2012 WL 5334761, & Alvin C. Harrell, “Agricultural Finance — Comparing the Current at *6, ¶5. The dissent characterized the bank’s behavior as “devious.” and Revised Article 9”, 33 U.C.C. L.J. 169 (2000); Harrell & Miller, infra Id. But on the facts as stated that is neither accurate nor relevant. Your note 45, ch. 16 (Agricultural Finance). Ultimately these agricultural author appreciates that the standard for defeating a summary judg- trust fund statutes inspired a series of somewhat similar state statutes ment motion is low, but it should be necessary at least to cite an argu- designed to provide equivalent protections for sales of oil and gas ment that supports the desired legal position. In Bank of Beaver City the minerals by royalty owners. See, e.g., Fred H. Miller & Alvin C. Harrell, arguments of Barretts’ did not state a cause of action because the “Aftermath of the Sem-Group Case — Oklahoma Enacts the Oil and alleged facts did not indicate the breach of any duty. See also supra Gas Owners’ Lien Act of 2010,” 81 Okla. Bar Ass’n J. 2818 (2010). None notes 42 - 43. of these agricultural trust fund statutes was an issue in the Supreme 57. Bank of Beaver City, 295 P.3d at 1095-96, ¶1, 2012 WL 5334761, at Court opinions in the Bank of Beaver City case. *6, ¶1 (Gurich, J., joined by Colbert, V.C.J. & Reif, J., dissenting). 44. UCC §9-324(d) & (e) provide a specific framework for a seller 58. Id. (citing various authorities). like Barretts’ to claim priority via a PMSI in livestock. See also: Id., cmt. 59. Id., at n. 2. This change in the definition of good faith should not 10; Kershen & Harrell, supra note 43. Even the dissenting opinion of make any difference as to the issues in this case, as (by its nature) good Justices Watts, Colbert and Reif in Bank of Beaver City, despite essen- faith is a duty that can run only to those with whom one has dealt. tially arguing in favor of Barretts’ position, concedes that “the livestock However, the UCC change makes this point even more clear on the company was sloppy in not filing a financing statement.” See infra note facts of this case. See supra notes 32-34. 56. Regarding a PMSI in livestock, see also Harrell & Miller, infra note 60. As apparent in some of the cases. See, e.g., supra notes 33 - 34 & 45, at 595-96. 48 - 49. 45. See, e.g., Alvin C. Harrell & Fred H. Miller, The Law of Personal 61. See supra this text and notes 31 - 36 & 48 - 49. Property Secured Transactions Under the Uniform Commercial Code and 62. See, e.g., id. Related Laws 4 - 5 (2001). 63. UCC Article 3, applicable to this case to the extent that Barretts’ 46. Bank of Beaver City, 295 P.3d at 1095, ¶3, 2012 WL 5334761, at *5, was seeking to enforce dishonored checks written by the debtor, ¶3 (Watts, J. joined by Colbert,V.C.J. & Reif, J., dissenting) (quoting the expressly recognizes this: “[In] an action to enforce the obligation of a majority opinion). But cf. infra note 48. party to pay an instrument, the obligor may not assert . . . a defense . . . 47. 295 P.3d at 1094-95, ¶2, 2012 WL 5334761, at *5, ¶2. or claim . . . of another person . . . .” UCC §3-305(c). 48. See, e.g., supra notes 32 & 34. Many of the cases construing the 64. This is the most basic of legal principles. Absent privity or some good faith requirement arise in the context of UCC Articles 3 and 4, other basis for a duty, one cannot assert the legal rights of others. See, e.g., when parties claim that a bank owes a duty (based on good faith e.g., supra note 63. or similar concepts) to non-customers, or there is a claim to HDC sta- 65. UCC §§1-201(b)(29), (30) & 2-403(1). This basic point is rein- tus. Claims based on a duty to non-customers are almost universally forced by the reference to a “good faith purchase,” indicating that it is rejected. See, e.g.: Alvin C. Harrell, Case Note: “Supreme Court of the purchase that must be in good faith, and the requirement for the South Carolina Rejects Tort of Negligent Enablement,” 57 Consumer purchaser to give “value.” Obviously, the obligation to give value, like Fin. L.Q. Rep. 96 (2003); 13 West’s Legal Forms, Commercial Transactions, the obligation to act in good faith, could not run directly to third par- Negotiable Instruments §3.19 (Bradford Stone, Fred H. Miller & Alvin C. ties or the world at large. Harrell, 1998 & 2011-2012 Supp.) (discussing good faith and notice 66. This standard is all that can be reasonable expected of any under the UCC). See also: Continental Bank N.A. v. Modansky, 997 F.2d purchaser. 309 (7th Cir. 1993) (there is no duty of good faith in negotiating contract 67. See, e.g., supra notes 33 - 34 & 48 - 49. terms); Susitna Ltd. v. Pacific First Federal, 846 P.2d 438 (Ore. App. 1993) 68. Bank of Beaver City, 295 P.3d at 1096, ¶1, 2012 WL 5334761, at *6, (there is no fiduciary duty in a contractual relation); Roberts v. Wells ¶1 (dissenting op.). Most if not all of the cases cited id. at n. 2 properly Fargo AG Credit Corp., 900 F.2d 1169 (10th Cir. 1993) (same). This case interpret §2-403(1) and are contrary to the conclusion quoted in the text law makes clear that the duty of good faith is limited to performance above. and enforcement of a contract between the contracting parties. See also 69. Bank of Beaver City, 295 P.3d at 1092-93, at ¶¶14 & 15, 2012 WL UCC §1-304 & cmt. 1. Without more than the facts in Bank of Beaver 5334761, at *4, ¶¶14 & 15 (citations omitted). City, as stated in the Supreme Court opinions, there do not appear to 70. Id. at ¶17. be any “contested facts” relating to the duty of good faith that would provide the basis for a remand. See also infra note 49. 49. This suggests an entirely different issue from whether the bank exercised good faith in its dealings with the debtor for purposes of §2-403(1). The quoted language does not address the issue of good faith; it does not suggest any element of unfairness in the way the bank About The Author treated the debtor. Quite the contrary, it suggests that the bank may have treated the debtor too favorably (which is not a breach of the duty Alvin C. Harrell is a professor

of good faith). Note also that being “in bed” with a debtor is not a legally-defined standard. Presumably the dissent is inferring that there of law at OCU School of Law might have been some kind of control relationship or other collusion and president of Home Savings between the bank and the debtor. See, e.g., supra this text and notes and Loan Association of Okla- 27-29. But this is a very different thing from the issue of whether the bank was treating its debtor fairly, as required by the duty of good homa City. He is co-author of a faith. It can be noted again that the factors cited by the dissent (knowl- dozen books, including The Law edge of the debtor’s poor financial condition; tolerating the debtor selling goods “out of trust”; and paying overdrafts) are not evidence of of Modern Payment Systems and either “control” by the bank or unfairness to its customer. See, e.g., Notes (with Professor Fred H. Alvin C. Harrell, Case Note: “Matter of Fabricators — Equitable Subor- Miller). He is editor of Consumer dination and Insider Control,” 48 Consumer Fin. L.Q. Rep. 110 (1994) (noting the elements of “control”); Peter G. Pierce III & Alvin C. Har- Finance Law Quarterly Report. rell, “Financers as Fiduciaries: an Examination of Recent Trends in He chaired the ABA UCC Committee task forces on Lender Liability,” 42 Okla. L. Rev. 79 (1989) (same, and the impact of State Certificate of Title Laws and Oil and Gas good faith); supra note 48. 50. Bank of Beaver City, 295 P.3d at 1095, ¶3, 2012 WL 5334761, at *5, Finance. ¶3 (dissenting op.). 51. Id., ¶4.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1771 SECTION NOTE

Taxation Law Section New Oklahoma Taxpayer Appeal Procedure By Sheppard F. Miers Jr.

The Oklahoma Uniform Tax Procedure Code TIME FOR FILING APPEAL 30 DAYS was amended in the 2013 session of the Okla- FOR BOTH ALTERNATIVES homa Legislation to provide an important Under each alternative appeal procedure a alternative taxpayer right of appeal from Okla- taxpayer must file an appeal within 30 days homa Tax Commission orders assessing a tax after the date of mailing to the taxpayer of the or additional tax or denying a claim for refund. Tax Commission order being appealed.3 The change amended 68 O. S. 2011, §225. NO BOND REQUIRED TO APPEAL TAXPAYER MAY APPEAL TO SUPREME COURT OR APPEAL FOR TRIAL The statute as amended does not require a DE NOVO IN DISTRICT COURT taxpayer to give bond in an appeal of a final Tax Commission order to the Supreme Court, or an Under this change of state tax procedure, a appeal for a trial de novo in district court.4 taxpayer shall have the right to either 1) appeal from a Tax Commission final order to the NO PAYMENT OF TAX, PENALTY, Supreme Court of Oklahoma, or 2) in lieu of INTEREST REQUIRED TO APPEAL appeal to the Supreme Court, opt to file an The statute as amended does not require that appeal for a trial de novo from a Tax Commis- the taxpayer pay the amount of disputed tax sion final order in the district court.1 assessed, penalty or interest in order to appeal The new right to appeal for a trial de novo in from a final order of the Tax Commission.5 district court will give taxpayers an opportu- APPEAL TO SUPREME COURT nity for a trial level hearing in a forum inde- ALTERNATIVE; RECORD FOR APPEAL pendent of the Tax Commission in at least two situations where it has not previously been If a taxpayer does not opt to file an appeal for available. a trial de novo in district court, and appeals to the Supreme Court of Oklahoma, the appeal NEW APPEAL PROCEDURE EFFECTIVE will generally proceed in the Supreme Court FOR TAX PERIODS BEGINNING AFTER NOVEMBER 1, 2013 without presentation of further evidence. Un- der that alternative appeal procedure, which The new alternative procedure of appeal for has historically applied, the prior law remains trial de novo in the district court shall be appli- in effect providing that the taxpayer shall cable for tax periods beginning after the legis- request that the Tax Commission prepare for lation effective date of Nov. 1, 2013. This gener- filing with the Supreme Court within 30 days, ally would mean for tax periods beginning Jan. the record of the appeal (taxpayer protest pro- 1, 2014. If the order of the Tax Commission ceeding at Tax Commission) certified by the affecting the taxpayer applies to multiple tax Tax Commission. The taxpayer may receive a periods which begin before and after the effec- copy from the Tax Commission on request.6 tive date of Nov. 1, 2013, the appeal for a trial de novo in district court shall be available to the taxpayer.2

1772 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 VENUE OF APPEAL FOR TRIAL DE NOVO Thus, the new alternative of filing for an IN DISTRICT COURT appeal for a trial de novo in district court Under the new procedure, a taxpayer may appears to be intended to be available primar- opt to file an appeal for a trial de novo from a ily for cases in which the taxpayer must first Tax Commission order in the district court of follow administrative procedures at the Tax Oklahoma County or the county in which the Commission that include the taxpayer protest, taxpayer resides. For a taxpayer that is a corpo- request for and conduct of an administrative ration or other entity with offices or places of hearing and entering of a final order of the Tax business within several counties in different Commission that has been mailed to the tax- judicial districts the statute does not specify in payer. Filing an appeal for trial a de novo in which district court the taxpayer must file or district court under 68 O. S. §225, as amended, explicitly limit the place for filing or a trial de before those administrative procedures are fol- lowed and completed at the Tax Commission novo to a particular district court.7 does not appear to be contemplated. SCOPE OF RIGHT TO APPEAL FOR TRIAL DE NOVO IN DISTRICT COURT The right of appeal of a taxpayer aggrieved by any other kind of order, ruling, or finding of The new alternative taxpayer appeal for a trial the Tax Commission and which is not a final de novo in district court appears to apply primar- order of the Tax Commission assessing tax or ily, perhaps exclusively, to two circumstances additional tax or denying a claim for refund involving Tax Commission administrative appears to remain solely by a taxpayer appeal actions and Tax Commission orders affecting to the Supreme Court of Oklahoma. the taxpayer. APPEAL FOR TRIAL DE NOVO IN The alternative appeal for a trial de novo in DISTRICT COURT HEARD BY JUDGE district court will apply to a final order of the Tax Commission assessing a tax or an addi- A jury trial does not appear on the face of the tional tax, such as after Tax Commission audit statute to be authorized if an appeal for a trial of a return filed by the taxpayer. This appears de novo in district court is filed by a taxpayer to relate to a Tax Commission order issued pursuant to 68 O. S. §225. If the taxpayer files an under taxpayer protest of proposed assessment appeal for a trial de novo in district court and the procedures provided for under 68 O. S. §221. amount in dispute exceeds $10,000, the trial de Under those procedures it would apply when novo must be heard by a district or associate dis- the Tax Commission has mailed notice of the trict judge sitting without a jury. If the amount in proposed assessment to the taxpayer, the tax- dispute does not exceed $10,000, the trial de novo may be heard by a special judge sitting without payer has timely filed written protest of the 10 proposed assessment with the Tax Commission a jury. and has requested a hearing before the Tax APPEAL FOR TRIAL DE NOVO IN Commission, and after the hearing at which the DISTRICT COURT; NEW TRIAL ON Tax Commission has entered a final order con- FACTS AND LAW taining findings of fact and conclusions of law A trial de novo in district court after an admin- on the protest and mailed it to the taxpayer.8 istrative hearing of a taxpayer protest has his- The new alternative appeal for a trial de novo torically been provided under the Ad Valorem in district court procedure will also apply to a Tax Code. That procedure applies to taxpayer final order of the Tax Commission that is a protests of property tax assessments which are denial of a claim for refund of the taxpayer. initially considered by the county assessor and This appears to relate to the procedures under then heard by the county board of equalization.11 which a taxpayer files a claim for refund or an In that context a trial de novo has been held to amended income tax return seeking refund mean that the district court does not need to give with the Tax Commission, for tax that the tax- deference to the lower tribunal (county board of payer has paid in error, the Tax Commission equalization) decision, and conducts a new trial has denied the refund, the taxpayer has on questions of both law and fact.12 This mean- demanded a hearing on the denial, and after ing of trial de novo would presumably also be hearing the matter the Tax Commission has applied to a trial de novo appeal filed by a tax- entered a final order denying the claim for payer with respect to a Tax Commission final refund.9 order pursuant to 68 O. S.§225.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1773 INTEREST ON REFUNDS ALLOWED erning appeal of final orders of district courts ON APPEAL to the Supreme Court of Oklahoma.16 In the case of a taxpayer appeal of the denial TAX COMMISSION JEOPARDY ACTIONS of a claim for refund, if a refund is allowed, the IN DISTRICT COURT AND APPEALS taxpayer shall be entitled to interest on the The new alternative right of appeal for trial refunded taxes at the rate of 1.25 percent per de novo in district court from a Tax Commission month.13 final order assessing tax or denying a claim for APPEAL FROM A DISTRICT COURT refund under 68 O. S. §225 may also not apply TRIAL DE NOVO BY TAXPAYER OR to certain district court actions that may be TAX COMMISSION brought by the Tax Commission. Such court A district court final order resulting from a actions can be brought by the Tax Commission trial de novo in district court shall be appealable for specified defaults by a taxpayer or for col- lection without assessment in case of false or to the Supreme Court of Oklahoma by either 17 party (the taxpayer or Tax Commission).14 fraudulent returns or failure to file returns. In these cases a taxpayer appeal from a final order PRE-EXISTING DISTRICT COURT of a district court (rather a final order of the Tax PROTEST PROCEDURE AND APPEAL Commission) in such an action may more like- UNCHANGED ly be provided for under general civil proce- The new appeal for a trial de novo procedure dure provisions governing appeal of final orders of district courts to the Supreme Court under 68 O. S. §225, is separate and distinct 18 from the district court taxpayer protest action of Oklahoma. provided under 68 O. S. §226. The latter pro- 1. 68 O. S. 2011, §225, as amended by Laws 2013, SB 864, c. 287, §1, vides an additional remedy for a taxpayer eff. January 1, 2014 [hereinafter 68 O. S. §225]. The Oklahoma Supreme aggrieved by the provisions any state tax law Court Rules governing appellate procedure may be modified in light or who resists the collection of or enforcement of the amendment of 68 O. S. §225. See 12 O. S. Appendix I, Part IV(e), Appeals From The Tax Commission. of the rules and regulations of the Tax Commis- 2. 68 O. S. §225(D). sion, including a protest based on being an 3. 68 O. S. §225(B); 68 O.S, 2011,§§221(G), 228. 4. 68 O. S. §225. unlawful burden on interstate commerce, col- 5. Id. lection being violation of federal law or the 6. 68 O. S. §225(B.) U.S. Constitution, or jurisdiction being vested 7. 68 O. S. §225(D). 8. 68 O. S. §225(D); 68 O. S. 2011, §221. in U.S. courts. A taxpayer generally must ex- 9. 68 O. S. §225(A), (D); 68 O. S. 2011, §§207, 227, 2373 and 228. haust the administrative remedies prescribed 10. 68 O. S. §225(A), (D). 11. 68 O. S. 2011, 2880.1. by law prior to appealing to the Supreme Court 12. Jackson v. Board of Equalization of Pushmataha County, 1995 OK from an order of the Tax Commission, except in CIV APP 35, 892 P. 2d 673. 13. 68 O. S. §225(E); 68 O. S. 2011, §217(A). cases involving constitutional issues as pro- 14. 68 O. S. §225(D). vided under 68 O. S. §226(c).15 The protest pro- 15. OAC §710:1-5-43; Cimarron Industries, Inc. v. Oklahoma Tax Com- cedure under 68 O. S. §226 provides a district mission, 1980 OK 190, 621 P.2d 539. 16. 12 O. S. 2011, §§952, 953, 990A; 12 O. S. Appendix 1, Oklahoma court trial level hearing as an additional reme- Supreme Court Rules, Part II, Appeals From Judgment Or Final Order dy instead of administrative protest and hear- Of The District Court. 17. 68 O. S. 2011, §§222, 223(C). ing before the Tax Commission. A taxpayer 18. 12 O. S. 2011, §§952, 953, 990A; 12 O. S. Appendix 1, Oklahoma must pay any of taxes or additional taxes to Supreme Court Rules, Part II, Appeals From Judgment Or Final Order have its protest heard in district court under Of The District Court. this procedure. A taxpayer appeal from a dis- trict court final decision in an action brought About The Author under 68 O. S. §226 is not expressly provided for in that statute, is not covered under 68 O. S. Sheppard F. Miers Jr. is a shareholder in the Tulsa §225 (which relates to orders of the Tax Com- office of Gable & Gotwals and practices in the areas mission) and is instead presumably authorized of federal and state taxation. under general civil procedure provisions gov-

1774 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 !"#$%!&$'(!)*!)$+,!-'(!&&,..,!-'' /012'!,#'$-3'4$.',-.+,+5+6' ' !"#$%&'(&)#$*)+,-(#./.+'('#.+0,($+()123&)43(( )$2(3+0(%3,(/)+,.#53'$)+(236(3+0(7#3/'$/.8( ! .789:8;<='>?@'

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`&O8UT U###@$9(=(B:/0("$a7#8b$8UOTU`8c@$V.>+*6*=("$a7#8b$8UUTUUUd@$+S6.-+((e/>>(6.*=S>/6S$$H(.,*0)$*+$=*6*,(5@$+/$-()*+,(-$B-/6B,=DQ$,(=(B:/0($*R$ D/4$R.*=$,/$-(>(*I($>/0R*-6.,*/0$(T6.*=$*0$-(+B/0+($,/$-()*+,-.,*/0S'''P<<@'XYVS00'Z7;?'(!H'[<=9<:=C?Q'!IF8><;'1\Q'/012]' XRVS00'Z;B<'F8@'W!ABCD8EC'(8;78;CFG89'(8EEG::G89Q'/012'!GB'C9='4C:',9:FGFMF:.(=$?(>2(-@$K31$?*-(>,/-$a7#8b$8UOTUU7O@$6S5(>2(-e/>>(6.*=S>/6S$$$$

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1775 SECTION NOTE

Taxation Law Section 2013 Oklahoma Tax Legislation By Sheppard F. Miers Jr.

Legislation enacted in the 2013 session of the with the Alternative Fuels Technician Certifica- Oklahoma Legislature included the changes tion Act, meet all federal motor vehicle safety described below, which are some of the new standards, or for any commercial vehicle, follow Oklahoma state laws on taxation. the federal motor carrier safety regulations or Oklahoma intrastate motor carrier regulations. INCOME TAX The credit was extended to be allowed for tax Individual Income Tax Rate Reduction years beginning before Jan. 1, 2020.2 The Oklahoma income tax rate for individual Tornado Relief Credit taxpayers was amended. For all taxable years For tax years beginning after December 31, beginning on or after Jan. 1, 2015, the Oklaho- 2011, a credit against the Oklahoma income tax ma income tax is to be imposed upon individu- shall be allowed for owners of residential real als at graduated marginal rates, with a maxi- property whose primary residence was dam- mum rate of 5 percent for the 2015 tax year and aged or destroyed in a natural disaster that was any subsequent tax year unless the rate is a weather or fire event for which a presidential decreased further based upon a determination major disaster declaration was issued, occur- of revenue growth by the state board of equal- ring in calendar year 2012 or 2013. The amount ization. If the state board of equalization deter- of the credit shall be the difference between the mines that the estimated revenue growth in the ad valorem property tax paid on such property general revenue fund of the state treasury is and improvements in the year prior to the equal to or greater than the amount by which damage or destruction and the amount of ad the income tax revenue for the tax year is esti- valorem property tax paid on the property and mated to be reduced by a 0.15 percent decrease improvements the first year after the improve- in the top marginal individual income tax rate, ment is complete. For purposes of the credit, such top marginal income tax rate shall be the amount of ad valorem property tax paid reduced to 4.85 percent, effective on Jan. 1, the first year after the improvement is com- 2016. The process for estimating revenue plete shall be based on the same or similar growth in excess of such a rate reduction square footage as the property which was would be repeated for subsequent years, if esti- damaged or destroyed. The credit shall be a mated revenue growth is not sufficient to 1 refundable credit. Eligible taxpayers shall be authorize a rate reduction beginning in 2016. entitled to claim this credit for five consecutive Clean-Burning Motor Vehicle Fuel Credit years. After the first year the credit is claimed, the amount of the credit shall be 80 percent of The Oklahoma income tax one-time credit the previous year’s credit. If the taxpayer has allowed for investments in qualified clean- no income tax liability, or if the credit exceeds burning motor vehicle fuel property was the amount of the income tax liability of the amended. Equipment installed to modify a taxpayer, then the credit, or balance thereof, motor vehicle to one that may be propelled by shall be paid out in the same manner and out compressed natural gas, liquefied natural gas of the same fund as refunds of income taxes are or liquefied petroleum gas must be new and paid and so much of the fund as is necessary not previously used to modify or retrofit any for such purposes is to be appropriated. To vehicle propelled by gasoline or diesel fuel. It qualify for the credit, 1) the property must must be installed by an alternative fuels equip- have been damaged or destroyed by a natural ment technician who is certified in accordance disaster during calendar year 2012 or 2013, 2)

1776 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 the property must be within an area which has amount of the credit or refund to which the been declared a federal disaster area, 3) the pass-through entity is entitled.5 property must be the primary residence of the Zero-Emission Facilities Electricity owner both prior to and after the natural disas- Generation Credit ter, 4) the owner must have been granted a homestead exemption or be eligible to claim a The credit allowed for taxpayer for the tax- homestead exemption both prior to and after the payer’s production and sale of electricity gen- natural disaster, 5) the primary residence shall erated by qualifying zero-emission facilities, be repaired or rebuilt on the same property as it using eligible renewable resources of wind, existed prior to the natural disaster, and 6) the moving water, sun or geothermal energy con- primary residence shall be repaired or rebuilt structed and located in Oklahoma was extend- and used as the primary residence no later than ed to apply to facilities placed in service before Dec. 31, 2015, with respect to the calendar year Jan. 1, 2021. The authorized transferability of 2012 or 2013 natural disaster. The credit shall not credits was extended through Dec. 31, 2013. be allowed if the property is transferred or title For credits earned on and after Jan. 1, 2014, but is changed or conveyed. Any credit claimed and not used by the taxpayer, the Oklahoma Tax allowed prior to the transfer of the property or Commission shall, at the taxpayer’s election, the change or conveyance of title shall not be refund directly to the taxpayer 85 percent of affected. The Oklahoma Tax Commission is the face amount of such credits. This direct required to promulgate any necessary rules and refund of the credit shall be available to all tax- develop any necessary forms to implement the payers. The amount of any direct refund of credits actually received at the 85 percent level allowance of the credit.3 by a taxpayer shall not be subject to Oklahoma Percentage Depletion Deduction Net income tax. If a pass-through entity does not Income Limitation file a claim for a direct refund, the pass-through The definition of taxable income in the Okla- entity shall allocate the credit to one or more of homa Income Tax Act was amended to provide the shareholders, partners or members of the for tax years beginning on or after Jan. 1, 2014, pass-through entity up to the amount of the the allowance of a deduction for depletion of credit or refund to which the pass-through entity is entitled.6 22 percent of the gross income derived from the properties during the taxable year for major Foster Care Expenses Deduction oil companies shall not exceed 50 percent of the A deduction will be allowed for a taxpayer net income of the taxpayer (computed without 4 who contracts with a child-placing agency in allowance for depletion) from the property. the maximum amount of $2,500 for single per- Coal Production Credit sons and $5,000 for married persons filing a joint return for expense incurred to provide The credit allowed for Oklahoma-mined coal care for a foster child.7 purchased by persons in Oklahoma burning coal to generate heat, light or power for use in Income Tax Credits and Deductions Repealed manufacturing operations in Oklahoma was A number of Oklahoma income tax credits extended until Dec. 31, 2021. The authorized were repealed, which are the credits allowed transferability of credits was extended through for 1) qualified direct costs associated with the Dec. 31, 2013. For credits earned on and after operation of a business enterprise the principal Jan. 1, 2014, but not used by the taxpayer the purpose of which is the rearing of specially Oklahoma Tax Commission shall, at the tax- trained canines; 2) gas used or consumed in payer’s election, refund directly to the taxpayer Oklahoma in operation of a manufacturing 85 percent of the face amount of such credits. plant; 3) 20 percent of the net investment cost of This direct refund of the credit shall be avail- investment for recycling, reuse or source reduc- able to all taxpayers. The amount of any direct tion of any hazardous waste; 4) monies contrib- refund of credits actually received at the 85 uted to the energy conservation assistance fund percent level by a taxpayer shall not be subject of 50 percent of the amount contributed to the to Oklahoma income tax. If a pass-through fund for the taxable year; 5) qualifying projects entity does not file a claim for a direct refund, in Oklahoma engaged in an industry which the the pass-through entity shall allocate the credit Oklahoma Space Industry Development Author- to one or more of the shareholders, partners or ity is authorized to promote; 6) employers incur- members of the pass-through entity up to the ring child care services expenses for employees;

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1777 7) property damaged or destroyed by a tornado SALES AND USE TAX or similar cyclonic winds on May 3, 1999, Octo- Registered Farmers Market Not Special Event ber 9, 2001, or May 8 or 9, 2003; 8) a small busi- ness operating in the state for any amount paid A “special event,” subject to Oklahoma sales to the U.S. Small Business Administration as a tax requirements under which the special event guaranty fee pursuant to the obtaining of sponsor must identify vendors at the event and financing guaranteed by the Small Business supervise and accomplish sales tax collection, Administration; 9) investment in a renewable shall not include a registered farmers market energy system; 10) food service establishments which is a designated area in which farmers, for immunizations against hepatitis A; 11) growers and producers from a defined region tourism development; 12) a qualifying ethanol gather on a regularly scheduled basis to sell at production facility; 13) a qualifying biodiesel retail nonpotentially hazardous farm food facility; 14) the amount of ad valorem taxes products and whole-shell eggs to the public.9 exempted pursuant for an enterprise locating a Direct Payment Permit new facility within or expanding an existing facility within an enterprise zone if such facility The authorization for purchasers of tangible is also located within an incentive district; 15) personal property to apply to the Oklahoma costs of a dry fire hydrant, meaning nonpres- Tax Commission for a direct payment permit surized pipes permanently installed in lakes, and pay sales and use tax directly rather than farm ponds and streams that provide a ready to the vendor was modified. The right to apply means of drawing water; 16) electric motor for a sales tax direct payment permit will now vehicle manufacturers for manufactured elec- be available 1) to every person who makes pur- tric motor vehicles; 17) any state banking asso- chases of $800,000.00 or more annually in tax- ciation, national banking association or credit able items for use in Oklahoma enterprises or union domiciled in Oklahoma for the amount 2) for every person who makes purchases of of the origination fee paid by the banking asso- drugs for treatment of humans, medical appli- ciation or credit union to the United States ances, medical devices and other medical Department of Education pursuant to the equipment, including eyeglasses, contact lens- “Stafford” loan guaranty program for an Okla- es, hearing aids, prosthetic devices, durable homa resident; 18) $500 for each new employee, medical equipment and mobility enhancing not to exceed 50 new employees, for a net equipment for administration or distribution increase in the number of full-time-equivalent by a practitioner who is authorized by law to employees engaged in computer services, data administer or distribute such items, and the cost of such items will be reimbursed under processing or research and development in Okla- 10 homa, including employees engaged in support Medicare or Medicaid. services and income tax deductions; 19) in the Common Carrier Rolling Stock Exemption case of resident individuals for amounts received The sales tax exemption for sales of rolling as dividends or distributions of earnings from stock (locomotives, autocars and railroad cars) savings and loan associations or credit unions when sold or leased by the manufacturer for located in Oklahoma and interest received on use or consumption by a common carrier savings accounts and time deposits from such directly in the rendition of public service was sources or from state and national banks or trust extended for sales made before July 1, 2019.11 companies located in Oklahoma, not to exceed the total of $100 per individual or $200 per cou- Tornado Sales Tax Relief; Inventory Withdrawals ple filing a joint return; 20) money contributed to The Oklahoma Sales Tax Code imposing a political party or to a candidate or candidate sales tax on the sales value of all tangible per- committee not to exceed $100 in any one tax sonal property which has been purchased for year; and 21) 50 percent of any capital gain of resale, manufacturing, or further processing, any resident taxpayer who sells to the state any and withdrawn from stock in trade for use or real property in which the taxpayer is the record consumption was amended to provide that owner and which was the site of a historic battle sales tax shall not be due for any such with- during the 19th century and is or has been des- drawal of tangible personal property which ignated a national historic landmark.8 has been donated for the purpose of assisting persons affected by a tornado occurring in the calendar year 2013 for which a Presidential Major Disaster Declaration was issued.12

1778 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 Tornado Sales Tax Relief; Vendor Collection Fee Tornado Relief; Homestead Exemption Allowance Despite Delinquent Reporting The Ad Valorem Tax Code was amended to The vendor deduction of 1 percent of the provide that the person actually owning, resid- sales tax due allowed to compensate the ven- ing and domiciled in the residence as of the dor for keeping sales tax records, filing reports date of a tornado shall be deemed to be the and remitting the tax when due, will not be record owner of the residence on such date if denied for delinquent filing and reporting by a the deed or other evidence of ownership of vendor if the Oklahoma Tax Commission deter- such person, executed on or before such date, mines the reason a report or payment of tax is of record in the office of the county clerk on was delinquent was due to a tornado occurring or before such date. However, such provisions in calendar year 2013 for which a Presidential shall only apply to any person who is eligible Major Disaster Declaration was issued.13 to claim the income tax credit pursuant to 68 O. AD VALOREM TAX S 2357.29 with respect to the tornado or to any person whose primary residence was damaged Reassessment of Damaged Property or destroyed in the tornado and who purchased The procedure for reassessment of improve- or built a new primary residence at a location in ments or real property or personal property Oklahoma other than the location of the dam- destroyed or damaged by fire, storms, flood- aged or destroyed residence. For any owner of waters or other cause during any year was real property who is eligible to claim the income changed to provide that the county assessor tax credit pursuant to 68 O.S. 2357.29 with shall determine the amount of damage and respect to the 2013 tornado or for any owner of reassess the property for that year and present real property whose primary residence was the reassessment to the board of tax roll correc- damaged or destroyed in the 2013 tornado and tions for its consideration.14 who purchased or built a new primary resi- Tangible Personal Property Used in dence at a location in Oklahoma other than the Disposal Systems location of the damaged or destroyed residence, the application for a homestead exemption may The required listing and assessment of tax- be filed after March 15, 2014, but no later than able tangible personal property was amended June 1, 2014, and the homestead exemption to provide that the value of taxable tangible shall be granted for such year.17 personal property used in commercial disposal systems of waste materials from the produc- GROSS PRODUCTION TAX tion of oil and gas shall not include any con- Gross Production Tax Payment Exemption from tract rights or leases for the use of such systems Ad Valorem Tax nor any value associated with the wellbore or The exemption from ad valorem tax of equip- non-recoverable down-hole material, includ- ment, machinery, tools, material or property 15 ing casing. that is actually necessary and being used and Release of Liens of Oklahoma Health Care in use in the production of asphalt or of ores Authority bearing lead, zinc, jack or copper or of oil or The statute providing for sale of real proper- gas by reason of payment of gross production ty for delinquent taxes was amended to pro- tax was amended. The exemption shall include vide that the county treasurers shall provide to the wellbore and non-recoverable down-hole the Oklahoma Health Care Authority (OHCA) material, including casing actually used in the a list of properties that will be sold at tax disposal of waste materials produced with resales, the OHCA shall produce a list for each such oil or gas, and including all materials and county of properties on which OHCA has liens, equipment of disposal systems and the lines transporting the waste materials, serving one and county treasurers shall make the list of 18 properties with OHCA liens available to poten- or more wells. tial buyers at the tax resales. The OHCA shall Gross Production Tax Reporting file a release of the liens on properties defined Tax administration procedures for gross as blighted properties under 11 O.S. §38-101 production tax were amended to eliminate upon request of the county treasurer. The filing specified reporting requirements and elimi- of the lien release shall not extinguish the debt nate certain procedures related to release of owed to OHCA which may be enforced through information on production.19 any legal means available to OHCA.16

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1779 MOTOR FUEL TAX reflected in the vehicle title record immediately prior to the repossession.23 Motor Fuel Tax Collected on Liquefied Natural Gas TOBACCO TAX The Oklahoma motor fuel tax was amended Fine for Possession of Untaxed Tobacco to impose a motor fuel tax on all liquefied nat- Any person in possession of more than 1,000 ural gas used or consumed in the state at a rate small or large cigars or 216 ounces of chewing of $.05 per diesel gallon equivalent (dge) until or smoking tobacco products in packages or the Oklahoma income tax credit authorized for containers for which tax required by law has qualified clean-burning motor vehicle fuel not been paid shall be punished by fine of not property expires, at which time the tax shall more than $5,000 for a first offense and not equal the tax rate imposed on diesel fuel using more than $20,000 for subsequent offenses.24 diesel gallon equivalent, which shall be equal to 6.06 pounds of liquefied natural gas. The tax ECONOMIC DEVELOPMENT; on special fuels was amended to no longer TAX/FINANCIAL INCENTIVES apply to liquefied natural gas.20 Quality Jobs Program Act Modified MOTOR VEHICLES The Oklahoma Quality Jobs Program Act Tornado Relief; Vehicle Registration Fee was amended to provide additional types of business that constitute a qualifying basic A credit shall be allowed with respect to the industry to include certain wired telecommu- fee for registration of a vehicle which is a nications carriers and securities, commodities replacement for a vehicle which was destroyed contracts and investment activities and to by a tornado in calendar year 2013 for which a modify the description of activities related to presidential major disaster declaration was pipeline transportation of refined petroleum issued, and which was registered pursuant to products. An establishment that has qualified the provisions of 47 O.S. 1132 on the date of for payments under the act shall be required to destruction. The credit shall be a prorated repay all incentive payments received if the amount based on the fee paid for the registra- establishment is determined by the Oklahoma tion of the destroyed vehicle for the period of Tax Commission to no longer have business registration remaining as of the date of destruc- operations in Oklahoma within three years tion and shall be applied to the registration fee from the beginning of the calendar quarter for for the replacement vehicle pursuant to the which the first incentive payment claim is provisions of 47 O.S. 1132. The credit will in no filed. The qualifying increased payroll require- event be refunded.21 ment was amended to provide that if an estab- Tornado Relief; Excise Tax Credit lishment fails to achieve the required gross payroll within three years of the start date, the A credit shall be allowed with respect to the establishment shall not make a new or renewal Oklahoma motor vehicle excise tax generally application for incentive payments authorized levied in Oklahoma. The credit shall be allowed pursuant to the act for a period of 12 months for a vehicle which is a replacement for a from the last day of the last month of the three- vehicle which was destroyed by a tornado in year period during which the required gross calendar year 2013 for which a Presidential payroll amount was not achieved.25 Major Disaster Declaration was issued, and upon which excise tax had been paid on or 21st Century Quality Jobs Incentive Act after Jan. 1, 2012.22 The wage requirements for qualification Excise Tax Exemption; Repossession under the 21st Century Quality Jobs Incentive Act were modified with respect to an annual- A transfer certificate of title shall be issued ized wage payment requirement, health care without payment of the motor vehicle excise premiums and a limit on the average wage tax for any vehicle on which ownership is requirement and adjustment thereof.26 transferred by a repossessor directly back to the owner or owners from whom the vehicle was repossessed. Ownership must be assigned by the repossessor within 30 days of issuance of the repossession title and be identical to that

1780 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 TAX ADMINISTRATION AND municipality for the collection of a municipally PROCEDURE imposed lodging tax.29 Taxpayer Appeal of Tax Commission Order TAX AND FISCAL POLICY The Oklahoma Uniform Tax Procedure Code Tax Incentive Review Committee Repeal was amended to provide an alternative right of appeal to taxpayers from Oklahoma Tax Com- The authorization of a system to quantify mission final orders assessing a tax or addi- costs and benefits of existing tax incentives and an Incentive Review Committee was tional tax or denying a claim for refund. A 30 taxpayer shall have the right to either 1) appeal repealed. to the Supreme Court of Oklahoma or 2) in lieu The author acknowledges information and assis- of an appeal to the Supreme Court, opt to file tance he received on the subject of this article from an appeal for trial de novo in the district court of Joanie Raff, Legislative Analyst, Staff of the Okla- Oklahoma County or the county in which the homa Senate. taxpayer resides. Under each alternative the taxpayer must file an appeal within 30 days 1. HB 2032, amending 68 O.S. Supp. 2012, §§2352, 2355; adding 68 O.S. Supp. 2013, §2355.1E; effective July 1, 2013. after the date of mailing to the taxpayer of the 2. HB1718, amending 68 O.S. 2011, §2357.22; effective April 13, tax commission order being appealed. If the 2013; HB 2005, amending 68 O.S. 2011, §2357.22; effective Nov. 1, 2013. taxpayer files an appeal for trial de novo in dis- 3. SB 330, adding 68 O.S. Supp. 2013, §2357.29A; effective May 13, trict court and the amount in dispute exceeds 2013. $10,000, the trial de novo must be heard by a 4. SB 166, amending 68 O.S. 2011, §2353(10); effective Nov. 1, 2013. 5. SB 343, amending 68 O.S. 2011, §2357.11; effective Jan. 1, 2014. district or associate district judge sitting with- 6. SB 343, amending 68 O.S. 2011, §2357.32A; effective Jan. 1, 2014. out a jury. If the amount in dispute does not 7. HB 1919, adding 68 O.S. Supp. 2013, §2358. 5-1; effective Nov. 1, 2013. exceed $10,000, the trial de novo may be heard 8. HB 1248, repealing 68 O.S. 2011, §2357.203; effective Nov. 1, 2013; by a special judge sitting without a jury. An HB 2308, amending and repealing 68 O.S. 2011, §§2357, 2357.6, 2357.13, 2357.26, 23 57.29; 2357.30, 2357.22, 2357.33, 2357.34, 2357.66, 2357.67, order resulting from trial de novo in district 2357.81; 2357.102, 2357.402, 2370.3, 2370.3, 54006, 2358.E, 2358.3, court shall be appealable directly to the 2357.24, 27A O.S. 2011, §2-11-303, effective Jan. 1, 2014. Supreme Court of Oklahoma by either party 9. HB 1039, amending 68 O.S. 2011, §1364.2; effective July 1, 2013. 10. HB 1399, amending 68 O.S. Supp. 2012, §1364.1; effective July 1, (the taxpayer or tax commission). In an appeal 2013. of an Oklahoma Tax Commission order to the 11. HB 2310, amending 68 O.S. 2011, §1357; effective Nov. 1, 2013. 12. SB 330, amending 68 O.S. 2011, §1362; effective May 13, 2013. Supreme Court, or an appeal for a trial de novo 13. SB 330, amending 68 O.S. 2011, §1367.1; effective May 13, 2013. in district court, the party appealing shall not 14. HB 1265, amending 68 O.S. 2011, §§2817.K, 2871.C.6; effective Nov. 1, 2013. be required to give bond. A taxpayer will not 15. SB 166, amending 68 O.S. 2011, §2817; effective Nov. 1, 2013. be subject to being required to pay the amount 16. SB 292, amending 68 O.S. 2011, §3129; effective Nov. 1, 2013. of disputed tax assessed, penalty or interest as 17. SB 330, amending 68 O.S. 2011, §§2888, 2892; effective May 13, 2013. a condition precedent to the right to prosecute 18. SB 166, amending 68 O.S. 2011, §§1001(T),1001.1; effective Nov. an appeal. In the case of an appeal of the denial 1, 2013. 19. SB 332, amending 68 O.S. 2011, §§1010,1024; effective Nov. 1, of a claim for refund, if a refund is allowed, the 2013. taxpayer will be entitled to interest on the 20. SB 519, amending 68 O.S. 2011, §§500.3, 500.4, 500.6, 500.28, 500.33, 701, 723; effective Jan. 1, 2014. refunded taxes at the rate of 1.25 percent per 21. SB 330, amending 47 O.S. 2011, §1132.3; effective May 13, 2013. 27 month. 22. SB 330, amending 68 O.S. 2011, §2103.1; effective May 13, 2013. 23. SB 678, amending 68 O.S. 2011, §2105; effective Nov. 1, 2013. State Agency Intercept of Income Tax Refund 24. HB 1104, amending 68 O.S. 2011, §§412, 418; effective July 1, 2013. The provisions of the Oklahoma Uniform Tax 25. SB 613, amending 68 O.S. 2011, §§3603, 3604, 68 O.S. Supp. 2012, §3606; effective Nov. 1, 2013. Procedure Code authorizing a state agency 26. SB 613, amending 68 O.S. 2011, §3914; effective Nov. 1, 2013. seeking to collect a debt from an individual to 27. SB 864, amending 68 O.S. 2011, §225; effective Jan. 1, 2014. 28. SB 945, amending 68 O.S. Supp. 2012, §205.2; effective April 13, request the amount owed be deducted from 2014. any state income tax refund due to that indi- 29. HB, 1874, adding 68 O.S. Supp. 2013, §2702.1; effective ninety vidual was amended to no longer provide that days after adjournment of the 2013 session of the Legislature. 30. HB 1455, repealing 68 O.S. 2011, §205.4; effective Nov. 1, 2013. it shall not apply to any debt owed to a state agency for health care or medical services.28 About The Author Tax Commission Municipal Lodging Tax Collection Sheppard F. Miers Jr. is a shareholder in the Tulsa office of Gable & Gotwals and practices in the areas The Oklahoma Tax Commission is autho- of federal and state taxation. rized to enter into an agreement with any

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1781 WOMEN IN LAW CONFERENCE Communication Across Generations, Gender and Culture By Kimberly Hays Sept. 27, 2013 University of Central Oklahoma This year, the theme for the country. Her legal publica- Nigh University Center Women in Law Conference is tions have appeared in the Edmond Communication Across Genera- Harvard Women’s Law Review, Full schedule of events at tions, Gender and Culture. The the Administrative Law Journal www.okbar.org/women conference is scheduled for and the Widener Law Review. Sept. 27 at the University of As Ms. Wald explains, Central Oklahoma Nigh Uni- sovereignty and citizenship “Communication always goes versity Center in Edmond. issues. As a Fletcher Fellow, two ways. What we say may she was named a nonresident Sarah Wald will be the fea- not be what others hear, and, fellow of the W.E.B. DuBois tured presenter during the whether we like it or not, morning CLE session which what others hear and how will cover Communicating you are perceived is often Across the Gender Gap: What dependent on whether you Lawyers Need to Know. Ms. are a man or woman.” Wheth- Wald is currently the chief of er you are a man or a woman in law, she will uncover these differences as well as discuss special issues in gender com- munication as it pertains to the lawyer. Stacy Leeds will give the keynote presentation during Stacy Leeds the luncheon and Mona Salyer Lambird Spotlight Awards Institute at Harvard Universi- presentation. Ms. Leeds is the ty during the 2008-09 academ- dean of the University of ic years. In addition, Ms. Arkansas School of Law. She Leeds has served as a judge received her J.D. from the for many tribes including the Sarah Wald University of Tulsa and has Cherokee Nation, where she focused her teaching and was the first woman and staff and senior advisor to the extensive research on prop- youngest person ever to serve dean at the John F. Kennedy erty, natural resources and as a Supreme Court justice. School of Government at Har- American Indian law. Ms. Leeds, a citizen of the vard University as well as Cherokee Nation, is the first adjunct lecturer in public poli- Among her many honors, American Indian woman to cy. She teaches seminars on she was awarded the presti- serve as dean of a law school. gender communications to gious Fletcher Fellowship to Her knowledge of Native practicing lawyers around the support her work on tribal American culture will lend

1782 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 itself nicely to this year’s tor of regulatory affairs and theme. policy analyst with each of the five federal agencies responsi- Following the luncheon, ble for implementing immi- CLE will continue with an gration laws in the United afternoon program beginning States. A passionate communi- with an update on Modern ty advocate, Ms. Majid has Slavery in Oklahoma as part of devoted her time and exper- the OBA initiative to join the tise to help establish success- fight against human traffick- ful pro bono and pro se legal ing. Most people in Oklahoma service programs, free health think human trafficking is care clinics for immigrant something that happens some Bill Fournet women and protocol for han- place far away. The truth is, dling pro bono representation Bill Fournet is the founder, Oklahoma is a prime state for for children trafficked into president and CEO of The modern day slavery recruit- the U.S. and trapped in the Persimmon Group. In addi- ment. This presentation, given quagmire of our immigration tion to leading The Persim- by Jasmine Majid and Craig policies and laws. Mr. Wil- mon Group since its inception, Williams, will give you a liams is a senior agent with he also leads the practice areas better understanding of the the Oklahoma Bureau of Nar- of leadership development, issues you may encounter cotics and Dangerous Drugs business transformation and and is currently assigned to team performance. Mr. Four- the Human Trafficking Divi- net will conclude the confer- sion. During this session, Mr. ence, focusing on communica- Williams and Ms. Majid will tion across generations with also provide valuable informa- his presentation “From tion on how to recognize Typewriters to iPads: How human trafficking and how Generational Diversity is you can assist child victims Transforming the Workplace.” and adult victims of sex and The Women in Law Confer- labor trafficking. ence is planned annually by In addition to this afternoon the OBA Women in Law Com- Jasmine Majid session, Rep. Kay Floyd will mittee and is made possible moderate a panel on “Com- by the generous support of and how the legal community municating With the Bench.” sponsors. The conference is is impacted. Panelists include Special Dis- priced to include opportuni- trict Court Judge Barbara Hat- ties to participate in the CLE Ms. Majid is an experienced field, Canadian County Dis- and luncheon or luncheon attorney who represents indi- trict Court, El Reno; Judge only. For details and registra- viduals, corporations and edu- Rebecca Brett Nightingale, tion, visit www.tinyurl. cational and research institu- Tulsa County District Court, com/2013WomenInLaw. tions in all aspects of immigra- Tulsa; and Judge Lisa Davis, tion law and policy. Prior to Ms. Hays is the co-chair of the Oklahoma County District joining Phillips Murrah in Jan- OBA Women in Law Committee Court, Oklahoma City. uary 2013, Ms. Majid worked together with Susan Bussey. in Washington, D.C., as direc-

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1783 BOOK REVIEW

The Complete Idiot’s Guide to Parliamentary Procedure By Jim Slaughter Reviewed by Melissa DeLacerda

Lawyers are frequently on minutes and how best to asked to comment on record what happens at a parliamentary procedure in meeting. charitable meetings, business The book includes an meetings, boards, committee appendix which is a parlia- meetings and yearly conven- mentary motions guide in tions. Learning the rules of chart form. The chart pro- parliamentary procedure is a vides wording for each useful tool for every attorney. motion and whether the The Complete Idiot’s Guide to motions require a second, Parliamentary Procedure is a allow debate and what vote quick, easy guide to master- is required. ing the basics. The Complete Idiots Guide to The author is an attorney Parliamentary Procedure is and a past president of the written in the style of the American College of Parlia- entire series of Complete Idi- mentary Lawyers. He has put ot’s Guides. It has text with together a simple, easily read 150 pages, paperback, $12.95. pointers included on each book to put the reader on a Published by Alpha Books subject. The headings in the fast track to mastering the (Penguin Group USA Inc.). chapters are concise and spe- basics of parliamentary proce- First Edition 2012 cific to each individual ques- dure. The book is softback tion one could have about and is 150 pages long. Robert’s used in the conduct of meet- parliamentary procedure, Rules of Order is more than ings. There is a chapter on making it easy to navigate 700 pages long. Having a voting, with all of the fre- and find the answer to any small, concise and easy-to- quently asked questions question. read guide makes it much about voting included. Chap- more convenient and likely to ter 8 deals with officers and The book’s reasonable price, be used than Robert’s Rules. elections, and Chapter 9 deals small size and simple organi- zation make it a must have The first two chapters with types of meetings and for the lawyer’s library. examine fundamental con- the quorums for each. Final cepts that are necessary to chapters suggest how to con- Ms. DeLacerda practices in using parliamentary proce- duct a meeting and set an Stillwater and serves as chair of dure. There are four chapters agenda for maximum effi- the Oklahoma Bar Journal Board that explain how motions are ciency. A chapter is included of Editors.

1784 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 FROM THE EXECUTIVE DIRECTOR

Things Aren’t Like They Used to Be By John Morris Williams

As we continue the building having a website and various least a thousand fold over a process for our next generation social media outlets for the local television station. With of technology, I am very re- purpose of marketing legal ser- the use of web technology, a minded that things just aren’t vices. Once upon a time cap- solo or small firm practice in a like they used to be. Ten years turing the great domain name nonurban area can have world- ago when I became your execu- was the way to go. Most of the wide exposure. tive director, I was asked in an catchy names were taken long Now enter into the world of interview what were my big- ago. Now, buying one’s way to web-based legal providers and gest fears. I stated then I feared the top of search engines is the multijurisdictional impli- not being able to keep up with cations of the various online the speed of change in our legal service providers. A non- brave new world of technolo- licensed person with a location gy. Certainly there was no Things are not within the boundaries of our great insight in predicting state who is providing legal change. It is inevitable. like they used to be, services is one thing. An out- Social media was not and as a profession of-state, or even out of the unheard of 10 years ago. Today country, online provider is it is not only social, it may be we must accept the much harder to detect and essential to marketing and prosecute for the unauthorized business communications. I challenges and create practice of law. This is no lon- have a Facebook account and new opportunities. ger a prediction of the future. a few other such accounts. To It is here and upon us. The be honest, I don’t participate task of protecting the public much. However, I do look and from unauthorized and poor read a lot about my “friends.” quality legal services in this Some of them offer practice often utilized. The new genera- new age of online services is advice, advice on products tion of such marketing includes large and will become increas- and some good humor. Many joining, for a fee, an Internet ingly more difficult. group that has national market- lawyers use social media as Things are not like they used effective marketing and com- ing capabilities. A search on these bigger sites will provide to be, and as a profession we munication tools for clients and must accept the challenges and prospective clients. I remember a list of lawyers by location and practice. There was a time create new opportunities. A when we used to network great website does not make through social events. Now when television marketing was a matter of some controversy. It great legal services. However, networking has become some- competent lawyers cannot thing more common on a seems that Internet marketing and advertising has come upon ignore the need to have an handheld device than at a electronic presence in the mar- cocktail party. us and all other professions without the stir of TV adver- ketplace. Studies show that There are many studies out tisement. The ethical rules within certain demographic that demonstrate the value of apply equally. The access is at groups the first place they

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1785 search for any goods and ser- we have engaged a sizeable vices is the Internet. For many group of members to help us lawyers a presence on the web At this year’s develop our systems to maxi- and use of other electronic ser- mize value to our membership. vices and tools has become Annual Meeting we Your input and suggestions are essential. The OBA Manage- will once again be always welcome. By the end of ment Assistance Program offers 2014 we hope to be through the skill and expertise in these offering a full-day implementation process and areas, and we are looking at fully launched. At the begin- ways to expand services and track of technology ning of 2015 I suspect that we training opportunities to our training. will start planning for the next members. At this year’s Annu- upgrade. It is inevitable. al Meeting we will once again be offering a full-day track of technology training. If you Things truly are not like they have not paid attention to the used to be for our association current trends in technology, or for many of our members in this would be a great way to this “online” world. As we To contact Executive Director catch up. move to our next generation Williams, email him at johnw@ of technology here at the OBA, okbar.org.

!"#$%&'$()*+,(-.$#(/0&1.0+,(2$3,.04( 544&6*$+*&7(

( ((

!"#$%&' (")%*+,"-.)%/01 %

89$+.0(-*:%+4(;(<%.(5++&07.,(=.7.0$#>2)#3456%*+,"-.)%776%897:%4,%;<7=%4>?>%% ( !"#$%"&'()'$*+",-(".(-'$/'01*"!"2)34)53$"6$7-4(/$" ""

!"#$%&'$(5++&07.,(=.7.0$#(( ?@(A6&++(/0B*++% ((

%%

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

1786 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 LAW PRACTICE TIPS

The Virtual Law Practice Are We All Virtual Lawyers Now? By Jim Calloway

Many lawyers have never times telecommute dropped ers that creative technology considered being involved from 78 percent in 2012 to 73 people have made a part of with virtual law practice. percent this year. The primary our everyday language.1 No Some have probably never lessons to be learned from offense is intended to Stepha- even heard the term before. these surveys are that relative- nie Kimbro, Richard Granat, Telecommuting or working ly few lawyers operate from Mark Lauritsen and other pio- from home is probably some- what they would term a “vir- neers in this area. I under- thing almost every lawyer has tual law practice,” and a large stand the terms were meant to done from time to time, par- majority telecommute, at least refer to online delivery of ticularly since technology occasionally. legal services as opposed to tools allow you to do so the traditional law firm much more effectively location. But what do you now. But there is value in think of when you hear thinking about this prac- the term virtual lawyer? tice style, even if you “Virtual” means “almost would never consider or nearly as described, but adopting it. not completely or accord- Virtual law practices ing to strict definition” or were reported as becom- “not physically existing as ing less common by the such but made by software 2013 American Bar Asso- to appear to do so.” So, if ciation Legal Technology “not the real thing, but Survey Report. This sur- made to look like it” is the vey result gave rise to online Telecommuting sounds street definition of virtual, chatter, with many who had good to many lawyers, espe- who would want to be a virtu- criticized the concept saying cially after a challenging day al lawyer? My guess is some they were right after all, and at the office. There’s a nice, survey respondents contem- those who supported the con- romantic thought of working plating that question decided cept noting that even if the in casual clothes, looking over they are not virtual lawyers survey was accurate, it was a a beautiful lake or ocean view. because they are “real” law- small change — perhaps with- But the reality of telecommut- yers. There are also some law in the survey margin of error. ing is often about being forced firms that provide some virtu- to stay home with a sick child al services but primarily oper- It is true that differences or an evening spent working ate from a physical location, between the 2012 and 2013 at home until late. providing legal services in the survey were not monumental. traditional way. So they would The number of lawyers who Personally, I’ve always also answer as not being vir- answered that their law prac- thought that the terms “virtu- tual lawyers. tice was a “virtual” law prac- al lawyer” or “virtual law tice declined this year to 5 practice” were a little silly. Those who self-identified on percent from 7 percent the Now, they are no sillier than the survey as virtual defined year before. The percentage of terms like “blogs,” “wikis,” the term as including “lack of lawyers who said they some- “dongles,” “Bluetooth” or oth- traditional physical office (58

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1787 percent),” “minimal in-person head and pass the savings contact with clients (52 per- If every time you along to clients. There are cent)” and “use of web-based many free social media tools tools for client interaction (46 email a document or available today, but right now, percent).” a question to a client, the investment for social media is time — another There is no doubt that scarce commodity. As we have today’s technology tools really you are virtually seen, social media sites are do allow a lawyer to work serving the client, attempting to monetize their from virtually (pun intended) sites, so it is likely the future anywhere. We have seen other then perhaps we will bring an investment in labels applied to the same both time and money to practice setting like “mobile are all virtual market via social media. lawyer” and “home-based law lawyers. practices.” Some law firms I do not doubt the delivery identify themselves as virtual of online legal services will because they mainly deliver grow, but we have not seen legal services online, while There is certainly some the final evolution of the busi- others use the term because attraction to the idea of hav- ness model yet.2 One area I the lawyers — and often staff ing a completely open sched- think will see huge growth in — work remotely, even ule with no client appoint- the near future is computer-to- though the firm may have a ments and no scheduled meet- computer video conferencing. central location that is open ings. If your preferred method If you have been representing during business hours with of work is having the morn- a business owner for years offices and meeting rooms ings free for activities and and you need to have a quick that can be scheduled for use. working in the afternoons and chat, why should either of you evenings, you could do that. drive across town to accom- While most lawyers would And every lawyer smiles at plish that? Many computers not identify themselves as vir- the idea of waking in the that have built-in webcams tual lawyers, almost every morning and logging in to and external webcams are lawyer in private practice has learn that three clients had now very inexpensive. There had a “virtual” attorney-client paid their remaining fees and are several services that pro- relationship, if that means that downloaded the work done vide cheap or free video con- the lawyer and the client for them. Making money ference and/or screen sharing never actually met face-to- while you sleep probably has to review documents for a few face. Phone calls and the post a universal attraction. participants. These include office facilitated representing Skype, Google+ Hangouts, an out-of-state client before But if you have a busy law Join.me,3 Zoom,4 Facetime, fax machines and Internet practice, virtual or otherwise, Adobe Connect, WebEx Meet- communications. you may set your schedule to ings, GoToMeeting, Microsoft always pick your children up If every time you email a Lync and many others. at school or to coach one of document or a question to a their sports teams. But with For this month’s Digital client, you are virtually serv- clients there will be deadlines; Edge podcast, Sharon Nelson ing the client, then perhaps and no law practice, virtual or and I interviewed Robert we are all virtual lawyers. otherwise, can run itself. Ambrogi, a seasoned legal Depending on how you define technology journalist for his the term, it could be that 5 There are many challenges take on virtual law practice percent or 100 percent of law- with a virtual law practice and the survey results. You yers are in virtual practice. today. Several years ago, it can find the interview online was much easier to get your From my reading, I think of at www.legaltalknetwork. name out online than it is a virtual law practice as being com/podcasts/ or on iTunes. today. It is difficult to get on the delivery of unbundled the first page of Google search And now as a reward for all legal services by online sys- results without paying a fair of you who read through this tems, with automation and amount of money; and the entire article even though you other technology tools being model for virtual law practices were not really considering a utilized to their potential. was to have very low over- virtual practice, here are my

1788 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 thoughts on the virtual tools laptop workstations home For those wanting to learn most every lawyer would or on the road. Cloud com- more about virtual law prac- want to use today: puting-based practice man- tices, your attention is directed agement systems provide to Stephanie Kimbro’s blog5 VIRTUAL PRACTICE TOOLS FOR ‘REAL’ full access to client files and her book, Virtual Law LAWYERS from anywhere the lawyer Practice: How to Deliver Legal can have Internet access. Services Online.6 Richard Access to email on your Have a plan for how you Granat writes a blog on elaw- smart phone do this and make sure you yering7 and provides virtual 8 Email is a business reality have all information stored practice support for lawyers. today. If you are at a doc- on your phone so you can Marc Lauritsen is founder and tor’s appointment or an easily log in when required. president of Capstone Practice Systems which provides docu- automobile repair, respond- Digital client files with scanned ment automation systems for ing to a few emails and images of all pleadings and law firms and wrote The Law- deleting pointless ones correspondence. yer’s Guide to Working Smarter while you wait is certainly 9 better than working longer Cue “Repeating Broken with Knowledge Tools. For at the end of the day. Record” by the artist Callo- many years, Mr. Lauritsen and way. Yes, you have heard Mr. Granat both served as Access to your office calendar on this one many times before. chair, vice-chair or co-chairs your smart phone Remote access is of limited for the ABA Law Practice Management Section’s elaw- This has become a necessity help if all you can access is yering group. today. Lawyers live by their the word processing docu- ments you drafted. Using calendars. You may still Mr. Calloway is director of the paper files only leaves the carry a physical pocket OBA Management Assistance law firm vulnerable to docket book if you want; Program. Need a quick answer to disaster, whether it is but after you synchronize a tech problem or help resolving destruction of the office and the smart phone with your a management dilemma? all the files or just a tempo- calendar at work and use it Contact him at 405-416-7008, rary situation when you are a few times, even the most 800-522-8065 or [email protected]. unexpectedly not allowed technophobic lawyer will It’s a free member benefit! ditch the old-style pocket- to access your office for book. You never can tell days. 1. OK, no one really uses “dongle” in their everyday language — at least no lawyer. when or where you will be A website of some kind But it is certainly a goofy term. I do like the approached by a potential term elawyering, however. It kind of has that client. If that client pulls out Most law firms now have superhero feel. Faster than a speeding bullet, some webpage, Facebook the elawyer filed his brief and saved the day. their smart phone to sched- 2. Is “final evolution” an oxymoron? ule an appointment, you page or other online pres- 3. https://join.me. ence. It is hard to imagine 4. www.zoom.us. had better be able to accom- 5. http://virtuallawpractice.org/. modate them or risk look- not making it easy for 6. www.amazon.com/Virtual-Law- potential clients to locate Practice-Deliver-Services/dp/1604428287. ing seriously out-of-touch. 7. www.elawyeringredux.com/. you online. 8. www.directlaw.com. Remote access to client and 9. www.amazon.com/Lawyers-Guide- office files Working-Smarter-Knowledge/dp/1604428260/. You may not want to regu- larly do this, but you need to be able to do so when needed. Services like GoTo MyPC and LogMeIn have provided remote access tools for some time. A secure VPN (Virtual Private Network) connection may be preferred by other firms. Other lawyers may address this need by taking their

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1789 ETHICS & PROFESSIONAL RESPONSIBILITY

Emergency Checklist in the Event of Death, Incapacity or Disappearance By Travis Pickens

Firms, associations of law- yers, legal departments and CHECKLIST ANTICIPATING A LAWYER’S DEATH, INCAPACITY solo practitioners should have OR DISAPPEARANCE (EMERGENCY PLANNING) a documented procedure in 4 Select an emergency attorney. The selection is place anticipating the potential critically important. Ideal attributes include impeccable for a sudden death, incapacity character, same or similar practice, known and liked by or disappearance of a lawyer. your family and staff, excellent communication skills and For solo lawyers, it is particu- conflict sensitive. larly important.1 4 Use fee agreements and explanatory materials that Personal incapacity to prac- state you have arranged for an emergency attorney to tice law is defined in RGDP close your practice in the unlikely event of your sudden Rule 10.1 as: death, incapacity or disappearance (get your client’s informed consent). a) Suffering from mental or physical illness of such 4 Use a thorough and up-to-date office procedure character as to render the manual that covers all the office details, from passwords to person afflicted incapable stored files. Make certain one can easily find or generate a of managing himself, his list of current clients, matters and contact information for affairs or the affairs of oth- not only clients but any other key people and suppliers to ers with the integrity and your practice. competence requisite for 4 Make sure all deadlines are clearly calendared. the proper practice of law; 4 Document your files well. Anticipate questions that b) Active misfeasance or might arise about a particularly tricky or complex case (or repeated neglect of duty problem client) and prepare a memo to file with details. in respect to the affairs of 4 a client, whether in mat- Keep all time and billing records clear, detailed and up-to-date. ters pending before a tri- bunal or in other matters 4 Return original documents to a client immediately constituting the practice if possible, and no later than the end of a case or of law; or matter. Avoid keeping wills, valuable papers or other client property. c) Habitual use of alcoholic beverages or liquids of 4 Have a written agreement with your emergency attor- any alcoholic content, hal- ney that outlines the responsibilities involved in closing your lucinogens, sedatives, practice. Reciprocal agreements are encouraged. Require drugs, or other mentally that the Office of General Counsel be notified immediately or physically disabling by the emergency attorney (RGDP 12.1). Arrange for com- substances of any charac- pensation for the emergency attorney if appropriate. ter whatsoever to any

1790 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 extent which impairs or This checklist for solos is a at www.okbar.org/members/ tends to impair ability to tool you may use to create EthicsCounsel/EthicsFAQ. conduct efficiently and your own plan. Every practice Mr. Pickens is OBA ethics properly the affairs under- and lawyer is different, but counsel. Have an ethics question? taken for a client in the this is a starting place for It’s a member benefit and all practice of law. thinking about how best to inquiries are confidential. Contact protect your clients in the In my office, I have learned Mr. Pickens at [email protected] event of your sudden death, that the “disappearance” of a or 405-416-7055; 800-522-8065. incapacity or disappearance. lawyer is typically due to a The checklist is available on debilitating mental or physical 1. ORPC 1.3 Comment [5]. the OBA website condition that leaves the law- yer either unable or unwilling to respond to letters, emails, 4 Work with your bank to determine the best method to telephone calls or any other have a second signatory on your accounts, and whether it effort to contact them. It can can be conditioned upon timing or events. also mean they have left the 4 Familiarize your emergency attorney with your office state or country in an effort to systems and keep him or her apprised of changes. avoid contact due to personal or legal problems. Sometimes, 4 Introduce your emergency attorney to your office staff a lawyer is simply emotion- and make sure your office staff is fully informed of this plan- ally overwhelmed or deeply ning. Make sure the staff has the information to contact depressed, unable to deal with the emergency attorney 24/7/365. If you practice without mail, email, telephone calls or regular staff, make sure your emergency attorney knows even someone knocking on whom to contact (e.g. the landlord) to gain access to their own residence door. your office. In firms and legal depart- 4 Inform your spouse/partner or closest living relative, the ments, dealing with the sud- designated personal representative of your estate, and all key professionals (e.g. malpractice carrier, CPAs), of this den loss or incapacity of a planning and how to contact the emergency attorney. lawyer happens somewhat naturally, the other lawyers 4 Periodically destroy files according to ethical guide- and staff generally know what lines and your document retention agreement. the lawyer was working on, 4 Provide a set of keys and passwords to your emergen- but even then usually not cy attorney. everything. With office sharing lawyers and solo practitioners, 4 Renew the written agreement with your emergency it is typically much different attorney each year and keep the identity of the lawyer and far more difficult. Regard- current in your fee agreement. less, a documented plan for This form is adapted from the Oregon State Bar Professional Liability every lawyer is a necessity. Fund handbook, “Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death,” Copyright 2011. All rights are reserved except OBA members may use this material for assistance with their own law practice.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1791 BOARD OF GOVERNORS ACTIONS Meeting Summary

The Oklahoma Bar Association County Bar Association Capi- regarding new association man- Board of Governors met at the tal Campaign meeting. She agement software and integra- Oklahoma Bar Center in Oklaho- worked on matters for the tion and upgrades of ancillary ma City on Friday, July 19, 2013. OBA Strategic Planning Com- software, and conducted the mittee, Litigation Section, Law JNC election. REPORT OF THE Schools Committee, Leader- PRESIDENT BOARD MEMBER REPORTS ship Academy and planning President Stuart reported for 2014 programs. Governor Farris, unable to he attended the Solo & Small REPORT OF THE attend the meeting, reported Firm Conference in Durant PAST PRESIDENT via email that he attended the and meetings regarding the American College of Trust and OBA Annual Meeting, South- Past President Christensen Estate Counsel CLE seminar in ern Conference of Bar Presi- reported she attended the Solo Philadelphia, OBA Work/Life dents Conference, Lawyers and Small Firm Conference in Balance Committee meeting Helping Lawyers and Oklaho- Durant, June Board of Gover- via teleconference and Tulsa ma Bar Foundation. He pre- nors meeting, SCBP planning County Bar Foundation Capi- sented a CLE on oil and gas at meeting, lawyers in the class- tal Campaign Committee the Solo & Small Firm Confer- room meetings and Law-relat- meeting. Governor Gifford ence, presented 50- and 60-year ed Education meetings. She reported he attended the Okla- membership pins at the Okla- worked on Lawyers Helping homa County Bar Association homa County Bar Association Lawyers banquet planning board of directors meeting, luncheon, worked on selecting and participated in planning Solo & Small Firm Conference Leadership Academy partici- discussions with President- and Board of Governors meet- pants and delivered an address Elect DeMoss. ing in Durant. He also made to the judicial conference in REPORT OF THE three presentations — “A Norman. EXECUTIVE DIRECTOR Cornucopia of Criminal Law” CLE at the Solo & Small Firm REPORT OF THE Conference, “Human Traffick- VICE PRESIDENT Executive Director Williams reported he attended Solo & ing in Oklahoma” to the Cen- Vice President Caudle Small Firm Conference and the tral Oklahoma Association of reported he attended the Solo monthly staff celebration. He Legal Assistants and “Obtain- & Small Firm Conference, attended meetings regarding ing Military Records & Basics Board of Governors meeting, timelines for new software of Military Law” CLE to the Oklahoma Bar Foundation going live, OBA Annual Meet- Oklahoma Criminal Defense trustees meeting and Coman- ing planning meeting, Oklaho- Lawyers Association at the che County Bar Association ma Bar Foundation, Bar Associ- Criminal Defense Institute luncheon. ation Technology Committee conference. Governor Hays meeting, SCBP planning meet- reported she attended the Solo REPORT OF THE ing and several meetings & Small Firm Conference at PRESIDENT-ELECT regarding bar association tech- which she presented on CLE President-Elect DeMoss nology. He communicated with topic, “Family Law Legislative reported she attended the Chief Justice Colbert regarding Update,” communicated with board meeting in Durant, Solo changes in the method and OBA Family Law Section lead- & Small Firm Conference, timing for submission of ap- ership regarding Trial Advoca- Oklahoma County Bar Associ- plications for suspension for cy Institute 2014, presented an ation annual awards luncheon, noncompliance with dues and OBA Board of Governors re- Financial Planning Subcom- MCLE rules, had phone confer- port to the Tulsa County Bar mittee meeting and Tulsa ences with technology vendors Association board of directors,

1792 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 conducted the Women in Law REPORT OF THE YOUNG held Aug. 22 at the Hyatt Committee meeting, partici- LAWYERS DIVISION Regency Hotel with Mike pated in conference planning, Turpen as the keynote speaker. Governor Vorndran reported studied various reimburse- The county bar will also hold he attended the June Board of ment policy alternatives and a household item drive to ben- Governors meeting, Solo & attended the subcommittee efit the Tulsa Day Center for Small Firm Conference and meeting, prepared the Family the Homeless and a Think YLD networking event. He Law Section budget for the Pink community event sup- also chaired the June YLD porting breast cancer aware- month, communicated with meeting. FLS Budget Committee mem- ness will be held in October. bers regarding 2014 budget REPORT OF THE SUPREME REPORT OF THE preparation, participated in COURT LIAISON GENERAL COUNSEL the Long Range Planning Sub- Justice Kauger reported the committee meeting by phone General Counsel Hendryx court is in its cessation of con- reported the Professional and distributed disaster relief ferences period. She said she fliers to church, TCBA and the Responsibility Tribunal held attended the Oklahoma Judi- its annual meeting and Vice- Tulsa County courthouse. cial Conference at which Governor Jackson reported Chief Justice John Reif attend- Retired Judge Donald Wor- ed. They elected Tulsa lawyer he attended the Solo & Small thington was presented with Firm Conference and June William LaSorsa as chief and the Justice Hodges/Justice Midwest City lawyer M. Joe Board of Governors meeting. Lavender Award. Governor Pappas reported she Crosthwait Jr. as vice chief. submitted an article on a law- COMMITTEE LIAISON The governor has appointed yer in her district for the Okla- REPORTS lay people to the PRT, and one vacancy still exists on the Pro- homa Bar Journal. Governor Past President Christensen fessional Responsibility Com- Parrott reported she attended reported the Lawyers Helping mission. Written status reports the Solo & Small Firm Confer- Lawyers Assistance Program of the PRC and OBA disciplin- ence, June Board of Governors Committee and Work/Life ary matters for June 2013 were meeting, Oklahoma County Balance Committee are joining submitted for the board’s Bar Association board of direc- forces again to sponsor a ban- review. tors meeting and OCBA annu- quet and auction on Sept. 10 at al awards luncheon. Governor the Oklahoma Bar Center. She REIMBURSEMENT POLICY SUBCOMMITTEE UPDATE Smith, unable to attend the requested that board members meeting, reported via email donate auction items. She also President-Elect DeMoss has that he attended the June reported the Bench and Bar prepared a draft that is still Board of Governors meeting, Committee discussed judicial under review. Solo & Small Firm Conference performance evaluations. A and travel reimbursement pol- justice from North Carolina SUPREME COURT DISTRICT 5 VACANCY icy subcommittee meeting. spoke on that state’s project. Governor Stevens reported No decision was made. Gover- The board discussed candi- he attended the June Board nor Hays reported the keynote dates for the vacancy, which of Governors meeting, Solo & speaker for the Women in Law was created upon the death of Small Firm Conference, July Conference on Sept. 27 at the Governor Sandee Coogan. The Cleveland County Bar Associ- George Nigh Center at the board asked Executive Direc- ation meeting and Oklahoma University of Central Oklaho- tor Williams to contact poten- Judicial Conference reception. ma in Edmond will be Sarah tial candidates discussed and Governor Thomas reported Wald, and the featured pre- ask them to submit résumés if she attended the board meet- senter at the luncheon will be they are interested. Résumés ing at the Solo & Small Firm Stacy L. Leeds. Sponsorship will be reviewed at the August Conference and Washington opportunities are available meeting. Staff was directed to County Bar Association meet- ranging from $5,000 to $250. publish a notice of the vacancy ings in June and July. She also She reported the Tulsa County once in the Oklahoma Bar Jour- worked with President Stuart Bar Association has hired Lau- nal and once in the E-News. and President-Elect DeMoss ren Monnet as its new Mem- Deadline to submit a résumé on the selection of the Leader- bership & CLE Director. The will be Aug. 7. Vice President ship Academy participants. TCBA annual luncheon will be Caudle was asked to

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1793 contact county bar presidents needed, and board members OBA ANNUAL MEETING in District 5. were asked to help recruit nominees. President Stuart announced PROFESSIONAL that the annual luncheon key- RESPONSIBILITY DAY OF SERVICE note speaker will be defense TRIBUNAL PROGRESS REPORT attorney Jose Baez, who will APPOINTMENTS speak on “Why Casey Antho- Governor Vorndran reported ny was Found Not Guilty.” The board approved Presi- that YLD member Brandi The meeting will be held dent Stuart’s recommendation Nowakowski is compiling a Nov. 13-15 at the Sheraton to appoint Noel Tucker, master list of community ser- Hotel in downtown Oklahoma Edmond, and John Heatly, vice projects planned for City. President Stuart said he Oklahoma City, for three-year Sept. 20-21. The first deadline heard Mr. Baez speak at the terms expiring June 30, 2016. to submit information is soon Arkansas Bar Association and once that deadline passes, JUDICIAL NOMINATING annual meeting and enjoyed follow-up by phone will come COMMISSION ELECTION his presentation. Efforts are next. Governor Pappas sug- RESULTS being made to keep costs gested the board consider down for the meeting. Execu- Executive Director Williams doing a project following its tive Director Williams shared announced that Mike Mordy, September meeting. Ideas an idea for a Thursday social Ardmore, was elected to the were discussed. Governor event that will involve partici- District 3 position, and Peggy Thomas and Governor Pappas pation by the sections. Board Stockwell, Norman, was elect- will contact local nonprofit members were given an ed to the District 4 seat. organizations to assess their update on construction taking needs. FORENSIC REVIEW BOARD place at the hotel, which will NOMINEES OKLAHOMA BAR make less space available than JOURNAL ARTICLES last year. President Stuart said the OBA was asked for three OBA President Stuart reminded NEXT MEETING members to be recommended board members who have not The Board of Governors met to the governor by Sept. 1 for submitted an article about an at the Oklahoma Bar Center in the governor to select one per- unsung hero in their district to Oklahoma City on Aug. 16, son to appoint to the Forensic do so soon. Past President 2013. A summary of those Review Board. President Stu- DeLacerda will be contacting actions will be published after art is recommending that cur- those who have missed the the minutes are approved. The rent board member Michael deadline. next board meeting will be Segler, Yukon, be included. held at 11 a.m. on Thursday, Two additional candidates are Sept. 19, 2013, at the Oklaho- ma Bar Center.

1794 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 BAR FOUNDATION NEWS Your OBF is Hard at Work By Susan Shields

On Aug. 23, 2013, the Oklaho- SUCCESS STORIES ma Bar Foundation Grants and Center for Children and Families, Inc. Awards Committee, chaired by (Cleveland County) Judge Millie Otey of Tulsa, met to consider the OBF annual grant Keaton applications. This year, the OBF Keaton is a beautiful 1 1/2-year-old boy who came to received a total of 19 grant appli- Divorce Visitation Arbitration Program (DVA) approximately cations, all from previous grant- one year ago. At that time, Keaton had never met his biologi- ees supported by the OBF. The cal father, Jim, and demonstrated a high level of discomfort amount of the grants requested during the first few months of supervised visits. DVA staff was approximately $590,000, stayed in the visitation room during these supervised visits to compared to the OBF grant bud- help establish a bond with the biological father. DVA staff get of $325,000 for the 2013 grant slowly transitioned out of the visitation room, which has been cycle. There was also an added an ongoing process. Improvements have recently been made, $7,135 from the 2012 Annual and Keaton is becoming increasingly affectionate with Jim. Meeting fundraising efforts. Over the course of the last year, Jim and Keaton’s relationship has started to blossom. Keaton is showing more comfort in his WORKING HARD TO interactions with his father by greeting him with a hug and/or RAISE FUNDS kiss when coming to the CCFI. With each new visit, Jim and As the OBF has reported previ- Keaton are developing a stronger bond, which is evident ously, IOLTA revenues are down through their body language and other non-verbal cues. Dur- drastically due to the very low ing their last visit together, Keaton fell asleep in Jim’s arms. (almost zero) interest rate envi- With CCFI services, Keaton is learning the benefit of a safe, ronment. The OBF is powerless to consistent and loving relationship with his biological father. combat the low interest rates that impact the OBF’s grant budget, Community Crisis Center (Delaware County) but each member of the OBA Janet should be grateful to the hard- working volunteers on the OBF Janet got pregnant in high school and raised her son alone. Board of Trustees who have Her son grew up to be a fine young man and married and had a son of his own. Later, Janet also married; but unfortunately, stepped up to raise funds by her husband was abusive. Tragically, Janet’s son and his wife recruiting new OBF Fellows, ask- were killed in a terrible car crash. The maternal grandparents ing existing Fellows who have got custody of the baby. Janet was not able to get regular visi- completed their initial pledge to tation with her grandson because of the abusive relationship become Sustaining or Benefactor she was in. Janet was devastated that her grandson would not Fellows, asking sections, county know about his father since she could not have a close rela- bar associations and other tionship with him. This helped her resolve to get out of the associations and groups to abusive marriage. She came to our shelter last January for help. become participants in the The OBF advocate assisted Janet in getting transitional housing new “OBF Community Fellows though our programs and stabilizing her finances. The OBF Program” and raising awareness advocate was able to help Janet get legal counsel through about the ability of lawyers han- Legal Advocates of Indian Country. Janet was able to get a dling class action matters to help divorce from her abusive husband. direct cy pres funds to the OBF. Now, Janet lives in peace and is able to have regular visita- Each of these revenue streams tion with her grandson. Now Janet’s grandson can learn about is critically important for the this father from the grandmother who loved her son so much.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1795 continued success of the OBF best — it’s the OBF’s reason not already become a Com- to meet the needs of grantees for existence. We strive to munity Fellow, urge your in providing legal services for raise increased OBF dollars organization to commit. Our the most needy Oklahomans for the sole purpose of giving collective dollars ensure that — often children and abused more away. the OBF’s support of Legal women, supplying funds for Aid, Tulsa Lawyers for Chil- HOW CAN YOU HELP? law-related education and dren, Oklahoma Lawyers for enhancing initiatives for If you are not a Fellow, Children, Teen Court, Oklaho- justice. become one. If you are ma High School Mock and a already a Fellow, increase host of other important ser- The OBF will report on the your commitment to become vices will continue for years approval of its 2013 grants a Sustaining or Benefactor to come. next month. While OBF Trust- Fellow. If you are a member ees work hard on fundraising, Ms. Shields is OBF president of a county bar, section or giving away OBF grants is and can be reached at susan. another organization that has what OBF Trustees love to do [email protected].

Tributes and Memorials Tribute and Memorial Gifts offer a simple and meaningful way to honor people who have played an important role in your life or whose accomplishments you would like to recognize. Graduating from law school, passing the bar, marking a milestone birthday, celebrating a colleague’s retirement are just some of the many occasions for which making a tribute gift to the Oklahoma Bar Foundation can be especially meaningful for you and the person you wish to honor or for the family and friends of the person you wish to remember. A Memorial gift in lieu of flowers is a fitting way to express your feelings and honor a departed friend, colleague or loved one. Tributes and memorials gifts are a great way to acknowledge the people you care about while helping to ensure that low-income and disadvantaged Oklahomans can access the legal advice and assistance they need or that school children learn about rights, responsibilities and the rule of law. The OBF will send the person you designate a card notifying them that you made a special remembrance gift in their honor or in memory of a loved one to help the OBF continue working to make Oklahoma a fairer and better place for everyone. Gifts will be used in meeting the on-going mission of the Oklahoma Bar Foundation, Lawyers Transforming Lives through the advancement of education, citizenship and justice for all.

Ma k e y o u r Tr i b u t e o r Me m o r i a l Gi f t t o d a y a t : w w w .okbarfounda t i o n .o r g /m a k e -a-c o n t r i b u t i o n

Or if y o u p r e f e r , p l e a s e m a k e c h e c k s p a y a b l e t o : Ok l a h o m a Ba r Fo u n d a t i o n P. O. Bo x 53036 Ok l a h o m a Ci t y OK 73152-3036

E-m a i l : • f o u n d a t i o n @o k b a r .o r g • Ph o n e : 405-416-7070 The OBF respects the privacy of donors and will not sell or share your personal information.

1796 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 ! ! ! KLMN&'1.&29CC>?;DE&.7FF9G&%?89FFC7?D&.98C&

!"#$%&$'&()'*#+%&,%-(&.')&$,'/%&#"&"%%+&0/&0"&'1.&2'33!"#$4&.%--'5!

OBA Section or Committee Law Firm/Office County Bar Assoc. IOLTA Bank Corporation/Business Other Group

"#$%&!'()*+!!! ! ! ! ! ! ! ! ! ! ! ! ,$-.(/.+!!! ! ! ! ! ! ! ! ! ! ! ! ! 0(121-3!4!5*216*#7!899#*::+!! ! ! ! ! ! ! ! ! ! ! ! ,1.7;<.(.*;=1&+!!!!!!!!!!!!! ! >?$-*+!! ! ! ! ! ! !!!!!!!!@A0(12+!! ! ! ! ! ! ! ! !"#$%&'$()**+,-./$'#00)12$-2$3$,#1$4#,#5)0#,.$67)873*$)9$."#$%:03")*3$&37$ ')+,;3.-),$300)1-,8$)783,-<3.-),2$3,;$87)+62$.)$+,-.#$1-."$-,;-5-;+30$031/#72$1")$ 37#$%&'$'#00)12$.)$2+66)7.$3$=)**),$=3+2#>$$!$$$$"#$%&'(')*'+$',$-./)*0#1$%&'2*/*'+$',$ 3456")#7$/#&2*0#/1$4+7$4724+0#(#+)$',$%.83*0$454&#+#//$4+7$8#))#&$.+7#&/)4+7*+9$',$ )"#$345:$

$67&'1.&(89:;<7=&.>?<;?@&.98A& ;<=$>??@A$B;CD$E?FG$!;$ ! • B#**!2*3(2!(::1:.(-/*!C$#!.?*!&$$#!(-9!*29*#27! A?DH?$;IFJE;KJ>A$ • <(C*!?(6*-!C$#!.?*!(D%:*9! L>$>??@M$ • >#$.*/.1$-!(-9!2*3(2!(::1:.(-/*!C$#!/?129#*-! $ • >%D21/!2(EA#*2(.*9!*9%/(.1$-!&#$3#():F!1-/2%91-3!&#$3#():! @ABC$!%DEF$E!$ C$#!:/?$$2!/?129#*- ! GGGH%I&EJ'%KLDE!A%LH%J@$ •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

>?$-*+!XYRPZ!YVSAURUR!! "!!!@A0(12+!C$%-9(.1$-[$JD(#\$#3" ! !"3,:$/)+$9)7$your 8#,#7)2-./$3,;$2+66)7.?"

! Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1797 ACCESS TO JUSTICE

University of Tulsa College of Law Continues Public Service Efforts By Christy M. Caves

University of Tulsa College mick, participated in a day- gram, Lawyers for Hunger of Law students proudly serve long DACA training on June and the Tulsa Area Urban their school, their community 14 organized by Ms. McCor- Debate League, among other and their profession. In sup- mick and Laura Bachman, ventures. port of the college’s belief in staff attorney with the legal FUTURE PROJECTS instilling a life-long commit- clinic’s Tulsa Immigrant ment to public service, we Resource Network and In January 2014, the TU have been working on new adjunct faculty member at College of Law will open the projects allowing our law TU Law. Lobeck Taylor Family Advoca- students new opportunities cy Clinic. In the new clinic, TU Law also recently to assist the underserved students will learn essential founded a student-led public and underrepresented in skills by representing clients, interest board, responsible for our community. particularly at-risk families, in carrying out the college’s mis- civil law matters. The clinic RECENT ENDEAVORS sion to promote public service will work closely with existing within our legal community. On June 15, TU Law stu- social and legal service pro- Six students were selected to dents, alumni and staff viders in the Tulsa communi- serve on the executive council teamed up to provide critical ty. Cases may involve legal from a group of extremely legal assistance at a free immi- issues related to domestic vio- qualified applicants. Its first gration law clinic held at the lence, housing, public benefits, project on the horizon for Boesche Legal Clinic. The clin- consumer debt or collateral this school year includes a ic was organized to provide challenges that stem from required public service day assistance to individuals clients’ involvement in the during orientation for all applying for Deferred Action criminal justice system. Clinic first-year law students at the for Childhood Arrivals students may also advocate Community Food Bank of (DACA), a program for broader law reform and Oklahoma and Catholic Chari- announced last summer by system changes in collabora- ties of Tulsa. From the outset, the Department of Homeland tion with community-based we stress that service to the Security. Tulsa organizations. community is at the core of The DACA program allows the legal profession, and these Assistant Clinical Professor undocumented young adults first steps into the legal pro- of Law Anna E. Carpenter to request deferred action on fession are the perfect way to will oversee the creation of their immigration status for a emphasize that and make a the new clinic. Ms. Carpenter period of two years, subject to real difference in people’s joined the University of Tulsa renewal. The clinic volunteers, lives. Additional new projects College of Law faculty this who included law students include supporting Legal summer, coming to TU from enrolled in a summer immi- Aid’s LiveHelp Project, Tulsa Georgetown University Law gration law course taught by Lawyers for Children, the Center, where she was a Professor Elizabeth McCor- Courthouse Assistance Pro- clinical teaching fellow and

1798 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 a supervising attorney of the situation as students gain gaining practical experience Community Justice Project. hands-on practical learning and learning the importance Ms. Carpenter’s extensive while helping to serve the and reward of lifelong pro experience as an advocate for legal needs of our community. bono work, including a at-risk populations will broad- So far this year, students have potential future career in en and strengthen TU Law’s assisted various local public the nonprofit sector. commitment to developing service entities including These recent projects repre- excellent lawyers and commu- Catholic Charities, Legal Aid sent just a piece of TU Law’s nity-minded citizens, while Services of Oklahoma Inc., longstanding commitment supporting the underserved Family and Children’s Servic- to public service, and we in our community. es Women in Recovery and always seek new ideas on Domestic Violence Interven- MAKING GREAT STRIDES how our law students can tion Services. Students help make a difference. TU Law students continue serve the under-represented to make great strides support- by contributing to a wide vari- Ms. Caves is assistant dean ing local nonprofit organiza- ety of areas of need ranging and director of experiential tions through externships from family law to bankrupt- learning at the University of which allow them to gain aca- cy, housing, disability and Tulsa College of Law. For demic credit for their legal immigration among others. questions, she may be contacted work under licensed attorney Our externship program at [email protected] or supervision. The externship allows them the opportunity 918-631-2421. opportunities with nonprofits to fulfill the legal needs of create a mutually beneficial vulnerable citizens while

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge First Judicial District, Office 1 Texas County This vacancy is due to the retirement of the Honorable Greg A. Zigler, effective January 1, 2014. To be appointed to the office of District Judge one must be a registered voter of the respective judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net under the link to Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applications must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, September 27, 2013. If applications are mailed, they must be postmarked by midnight, September 27, 2013. Heather Burrage, Chairman Oklahoma Judicial Nominating Commission

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1799 YOUNG LAWYERS DIVISION

OBA Annual Meeting: A Good Place to Start By Joe Vorndran

The YLD chair typically uses Join us in the YLD hospitality submit your ballot, as the bal- this article to promote the elec- suite following the President’s lots will be circulated electron- tions to the YLD Board of Reception Wednesday night ically in late October. Directors and attendance at for a late-night celebration. I Finally, I want to congratu- the OBA Annual Meeting. also hope you’ll join me and late all those who passed the When I began thinking about other YLD members at the July bar exam and welcome these two topics, it became OBA Sections Present the Best you to the OBA. I look for- impossible for me to separate of Oklahoma: Art, Music, Food ward to meeting you at the them. It is because I chose to & Wine on Thursday evening, swearing-in ceremonies on attend Annual Meeting in 2006 Nov. 15. Sept. 25. I hope that you will that I became involved in the all join YLD officers, directors YLD (well, that and a few and members at the Welcome cocktails and a very persua- to the OBA receptions, which sive director). I have attended will be held at McNellie’s in every year since and count my I invite you Oklahoma City and Tulsa on memories of Annual Meeting to attend the OBA Sept. 26. as some of my fondest. Annual Meeting and RUN FOR THE OBA YLD The Oklahoma Bar Associa- BOARD OF DIRECTORS tion may be a mandatory bar, the various YLD events but under its umbrella exists a taking place at the Deadline: Sept. 27 at 5 p.m. thriving network of volun- If you are interested in teers who represent commit- meeting. becoming more involved in tees, sections and divisions the OBA YLD, consider run- with pride and enthusiasm. ning for a position on the YLD Perhaps the greatest strength Board of Directors. The YLD of our bar association is the Board has monthly meetings simple fact that there is a way YLD LEADERS WANTED that are typically held on Sat- for every lawyer to be in- For YLD members looking urday mornings in Tulsa or volved and impact our profes- Oklahoma City. sion in a positive manner. The to get involved, I encourage epicenter of this passion and you to submit a nominating Nominating petitions must involvement is the OBA petition and run for the YLD be submitted by 5 p.m. on Fri- Annual Meeting. Board of Directors. Keep read- day, Sept. 27, 2013. Questions ing to find a list of open seats can be directed to Jennifer I invite you to attend the and the election procedure. Heald Castillo, Nominating OBA Annual Meeting and the Information can also be found Committee chairperson, at various YLD events taking on the YLD webpage. I also [email protected]. place at the meeting. The YLD want to encourage all YLD board meeting will take place members to vote. You don’t on Wednesday, Nov. 14, 2013. even have to buy a stamp to

1800 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 Officers: DISTRICT NO. 8: Tips From The Coal, Hughes, Lin- Chairperson-Elect Nominating Committee Chairperson coln, Logan, Noble, Qualifications: Any Okfuskee, Payne, member of the divi- Pontotoc, Pottawat- • The OBA YLD website has a sample nominating sion having previ- omie and Seminole petition to give you an idea of format and informa- ously served for at counties (1 seat). tion required by OBA Bylaws. You can also request a least one year on nominating petition from the Nominating Committee. AT LARGE: the OBA YLD Board Statewide (2 seats). of Directors. • Signatures on the nominating petitions do not have to be from young lawyers in your own district AT LARGE RURAL: Term: One-year (the restriction on districts only applies to voting). Any county other term (Jan. 1, 2014 – than Tulsa County or Dec. 31, 2014). The • Take your petition to local county bar meetings Oklahoma County chairperson-elect or to the courthouse and introduce yourself to other (1 seat). automatically be- young lawyers while asking them to sign – it’s a comes the chairper- good way to start networking. Nominating son of the division Procedure: • You can have more than one petition for the for 2015. same position and add the total number of original Article 5 of the Divi- Treasurer signatures – if you live in a rural area, you may sion Bylaws requires want to fax or email petitions to colleagues and that any eligible mem- Qualifications: Any have them return the petitions with original signa- ber wishing to run for member of the OBA tures by snail mail. office must submit a YLD Board of nominating petition to Directors may • Don’t wait until the last minute – the Nominating the Nominating Com- be elected by the Committee will not accept nominating petitions mittee. The petition membership of the received after 5 p.m. on Friday, Sept. 27, 2013. must be signed by at division to serve in • Membership eligibility extends to Dec. 31 of least 10 members of this office. any year which you are eligible. the OBA YLD. The Term: One-year original petition • Membership eligibility starts from the date of term (Jan. 1, 2014 – must be submitted your first admission to the practice of law, even if Dec. 31, 2014). by 5 p.m. on Friday, outside of the state of Oklahoma. Sept. 27, 2013. A sepa- Secretary All candidates’ photographs and brief biographi- rate petition must be Qualifications: Any cal data are required to be published in the OBJ. All filed for each opening, member of the OBA biographical data must be submitted by email. Peti- except that a petition YLD Board of tions submitted without a photograph and/or brief for a directorship shall Directors may be résumé are subject to being disqualified at the be valid for one-year elected by the mem- discretion of the Nominating Committee. and two-year terms bership of the divi- and at-large position. sion to serve in this McIntosh, Marshall, Pittsburg, A person must be eli- office. Pushmataha and Sequoyah gible for division membership counties (1 seat). for the entire term for which Term: One-year term (Jan. 1, elected. 2014 – Dec. 31, 2014). DISTRICT NO. 3: Oklahoma Eligibility: Board of Directors: County (2 seats). All OBA members in good (Two-year terms) DISTRICT NO. 4: Alfalfa, standing who were admitted Beaver, Beckham, Blaine, The following directorships to the practice of law 10 years Cimarron, Custer, Dewey, are open for election for a two- ago or less are members of the Ellis, Garfield, Harper, King- year term from Jan. 1, 2014, to OBA YLD. Membership is fisher, Major, Roger Mills, Dec. 31, 2015. automatic – if you were first Texas, Washita, Woods and admitted to the practice of law DISTRICT NO. 2: Atoka, Woodward counties (1 seat). Bryan, in 2003 or later, you are a Choctaw, Haskell, Johnston, DISTRICT NO. 6: Tulsa member of the OBA YLD! Latimer, LeFlore, McCurtain, County (1 seat).

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1801 Election Procedure: members of the Nominating person no later than 5 p.m. on Committee shall only vote in Friday, Sept. 27, 2013, at the Article 5 of the Division the event of a tie. Please see following address: Bylaws governs the election OBA YLD Bylaws online for procedure. In October a list of Jennifer Heald Castillo additional information at all eligible candidates and bal- Hall, Estill, Hardwick, www.okbar.org/members/ lots will be published in the Gable, Golden & Nelson, P.C. YLD/Bylaws. OBJ. Deadlines for voting will 100 N. Broadway, Suite 2900 be published with the ballots. Deadline: Oklahoma City, OK 73102 All members of the division Tel: 405-553-2854 Nominating petitions, may vote for officers and at- [email protected] accompanied by photograph large directorships. Only those and brief resume (in electronic Mr. Vorndran practices in members with the OBA roster form) for publication in the Shawnee and serves as the YLD addresses within a subject OBJ, must be received by the chairperson. He can be reached at judicial district may vote for Nominating Committee chair- [email protected]. that district’s director. The

1802 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 CALENDAR OF EVENTS

September

17 OBA Communications Committee meeting; 12:15 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference with Doerner, Saunders, Daniel & Anderson LLP, Williams Center Tower II, Two West Second St., Ste. 700, Tulsa; Contact Dick Pryor 405-740-2944 18 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Jeffrey Love 405-286-9191 Ruth Bader Ginsburg Inn of Court; 5 p.m.; OBA Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Oklahoma Bar Center, Oklahoma City with Donald Lynn Babb 405-235-1611 teleconference; Contact Judy Spencer 405-755-1066 19 OBA Board of Governors meeting; 11 a.m.; 25 New Admittee Swearing In Ceremony; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact House of Representatives, State Capitol; Contact Board John Morris Williams 405-416-7000 of Bar Examiners 405-416-7075 Oklahoma Bar Foundation Trustee meeting; 26 OBA Work/Life Balance Committee meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City; 12 p.m.; Oklahoma Bar Center, Oklahoma City with Contact Nancy Norsworthy 405-416-7070 teleconference; Contact Sara Schumacher 405-752-5565 20 OBA Law Schools Committee meeting; 10 a.m.; OBA Professionalism Committee meeting; Oklahoma Bar Center, Oklahoma City with 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Kenneth Delashaw teleconference; Contact Judge Richard Woolery 580-276-3136 918-227-4080 21 OBA Title Exam Standards Committee meeting; 27 OBA Professional Responsibility Commission 9 a.m.; Tulsa County Bar Center, Tulsa; Contact meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma Jeff Noble 405-942-4848 City; Contact Dieadra Goss 405-416-7063 23 OBA Law-related Education PROS Training – OBA Appellate Practice Section meeting; Elementary Session; 8:30 a.m.; Oklahoma Bar 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Center, Oklahoma City; Contact Suzanne Heggy Collin Walke 405-235-1333 405-556-9612 OBA Litigation Section meeting; 12 p.m.; October Oklahoma Bar Center, Oklahoma City with teleconference; Contact Renée DeMoss 918-595-4800 1 OBA Management Assistance Program presents Opening Your Law Practice; 9 a.m.; Tulsa County OBA Juvenile Law Section meeting; 4 p.m.; Bar Center, Tulsa; Contact Jim Calloway 405-416-7000 Oklahoma Bar Center, Oklahoma City with teleconference; Contact Tsinena Thompson OBA Government and Administrative Law 405-232-4453 Practice Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Gary Payne 24 OBA Law-related Education PROS Training – 405-297-2413 Secondary Session; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Suzanne Heggy 405-556-9612 3 OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.; Office of Tom Cummings, OBA Bench and Bar Committee meeting; 701 NW 13th St., Oklahoma City; RSVP to Kim Reber 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact [email protected] Judge Barbara Swinton 405-713-7109

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1803 OBA HEALTH LAW SECTION Please join us… Wednesday, November 13, 2013 In conjunction with the OBA Annual Meeting, the Health Law Section will be sponsoring a 6 hour CLE Track on Wednesday, November 13. Kim Holland, former Oklahoma Insurance Commissioner and current Executive Director of State Affairs for Blue Cross and Blue Shield, will be a featured speaker on health care reform from 11-11:50 a.m. See the Annual Meeting Schedule for the times and topics of the other presentations and for registration information.

12-1 p.m. Networking Lunch and Hot Topics Presentations Physician Collaboration – Recent Antitrust Opinion on NPHO: Mike Joseph, McAfee & Taft Medicaid and Insure Oklahoma Update – Oklahoma Health Care Authority Attorney Health Care Innovation Update – Jan Slater, Oklahoma Center for Healthcare Improvement

1-1:50 p.m. OBA Health Law Section and Oklahoma Health Lawyers Association Business Meetings

5-6 p.m. Networking Cocktail Reception Plan to Attend!

1804 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 FOR YOUR INFORMATION

Norman Attorney Appointed to OBA Board Norman attorney Jim Drummond has been appointed to the OBA Board of Governors, filling the seat of Supreme Court Judi- cial District 5 representative Sandee Coogan, who died in May. As District 5 governor, Mr. Drummond will represent an area comprised of Carter, Cleveland, Garvin, Grady, Jefferson, Love, McClain, Murray and Stephens counties. His term begins imme- diately and will expire Dec. 31, 2015. “Jim Drummond makes an excellent addition to our governing board,” said OBA President Jim Stuart of Shawnee. “He is an outstanding attorney who has an active history of distinguished service to the association. I believe he will be an essential mem- ber of our team while maintaining his busy practice in Norman.” Jim Drummond Mr. Drummond is a private criminal defense lawyer handling trials and criminal appeals in federal and state courts in Oklaho- ma and Texas. He has extensive experience handling capital crime matters; from 2007-2008, he served as supervisor of the Oklahoma-Western Capital Habeas Corpus Unit, representing clients in all three Oklahoma federal judicial districts. He is also licensed in Texas (active) and Arizona (inactive), as well as in all Oklahoma federal district courts, the Fifth, Sixth and Tenth Circuit Courts of Appeals, and the U.S. Supreme Court. He currently serves as chair of the OBA Legal Ethics Advisory Panel. From 2001-2006 he was a voting member the Oklahoma Sentencing Commission, mandated to make recommenda- tions to the Legislature on sentencing policy and to supervise the Oklahoma Criminal Justice Resource Center. He serves on the Criminal Justice Act Standing Committee for the Tenth Circuit Court of Appeals. He has co-produced a two-day seminar on defending methamphet- amine cases and has presented at numerous other seminars, including most recently the effect of the CSI television series on jury deliberations in criminal cases and the forensic sci- ence of crime scenes. He and his wife, Deborah King Drummond, live in Norman.

Register Now for Opening Your Lawyers Needed to Coach Law Practice Seminar High School Mock Trial The semi-annual “Opening Your Law Practice” semi- Teams nar is set for Oct. 1 in Tulsa and Oct. 8 in Oklahoma Have you considered working City. This free seminar is perfect for lawyers setting up with students to increase their practice, whether they are self-confidence and knowledge newly admitted, returning about our justice system? The to private practice, or just time commitment is flexible and venturing out on their lasts about two months. The own. The program will OBA’s Mock Trial Program is address the nuts and bolts seeking attorney coaches, who of setting up a law prac- will be assisted by teacher coach- tice, including marketing, es in Oklahoma, Tulsa, Canadian, law office technology, cli- Cleveland, Payne and Kingfisher ent relations, professional- counties. Schools are still register- ism, financial manage- ing, so the list is not final yet. If ment, ethics and trust you have questions or are inter- accounting, malpractice insurance and risk manage- ested, contact Coordinator Judy ment. Register online at www.okbar.org/members/ Spencer, [email protected], CLE/2013/NewLawPractice or contact Renee 405-755-1466. Montgomery, [email protected], 405-416-7029.

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1805 Get Involved in the Young OBA Day of Service Is Here! Lawyers Division It’s not too late to If you have been a lawyer less than get involved in the 10 years and are interested in becom- OBA Day of Ser- ing more involved in the OBA Young vice! More than Lawyers Division, consider running 40 county bar for a position on the YLD Board of associations and Directors. The YLD Board of Direc- legal organizations tors has monthly meetings that are have already typically held on Saturday mornings signed up, sup- in Tulsa and/or Oklahoma City. Sub- porting President mit nominating petitions containing Jim Stuart’s vision no less than 10 signatures no later of celebrating than 5 p.m., Sept. 27, to Jennifer attorneys who serve and give back. The OBA Young Castillo at [email protected]. Lawyers Division is helping coordinate activities; if More information is available at you’d like to learn more about the Day of Service or www.okbar.org/members/YLD/ want to submit a project, email YLD Community NominatingInfo. Service Committee Chairperson Brandi Nowakowski at [email protected] ASAP!

Free LHL Discussion Groups Available Aspiring Writers Take Note to OBA Members We want to feature your work on “Practicing While Sick or Injured” will be the topic of “The Back Page.” Submit articles the Oct. 3 meetings of the Lawyers Helping Lawyers related to the practice discussion groups in Oklahoma City and Tulsa. Each of law, or send us meeting, always the first Thursday of each month, is something humorous, facilitated by committee members and a licensed transforming or mental health professional. In Oklahoma City, the intriguing. Poetry is group meets from 6 – 7:30 p.m. at the office of Tom an option too. Send Cummings, 701 N.W. 13th St. The Tulsa meeting time submissions no more is 7 – 8:30 p.m. at the TU College of Law, John Rogers than two double- Hall, 3120 E. 4th Place, Room 206. There is no cost to spaced pages (or 1 1/4 single-spaced attend and snacks will be provided. RSVPs are pages) to OBA Communications encouraged to ensure there is food for all. Director Carol Manning, carolm@ okbar.org.

OBA Leadership Academy 4 Gets Underway OBA Leadership Academy 4 par- ticipants attend- ed their first of five sessions Sept. 11-12 in Oklahoma City. Future bar leaders took time out from their training to Mary Caldwell of Oklahoma City enjoy a scenic puts leadership training into action sunset cruise along the Oklahoma River. as she takes the helm during the (From left) Lorena Rivas Tiemann, Tulsa; Blake Lynch, Oklahoma River cruise. McAlester; Jimmy Oliver, Stillwater; Adam Christensen, Oklahoma City; and Ashley Rahill, Oklahoma City.

1806 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 BENCH & BAR BRIEFS

Hall, Estill, Hardwick, Gable, McLain PLLC and Robert Golden & Nelson PC, Roger Sartin of Barrow & Grimm R. Scott Community Service who were all members of the Award; G. Michael Lewis of TCBA executive director Doerner, Saunders, Daniel search committee. Additional- & Anderson LLP, James C. ly, the Tulsa County Bar Lang Mentoring Award; and Foundation presented awards obert H. Mitchell of Norma Eagleton of Eagleton, to four attorneys: Bill Sanders RSweet Law in Oklahoma Eagleton & Harrison Inc., of Explorer Pipeline Company City received the OU Physi- Gary C. Clark Distinguished was recognized for his role on cians Professional Liability Service Award. the TCBF Golf Committee; Defense Panel Outstanding Kimberly Moore-Waite of udge Milley Otey; Leonard Service Award in recognition Legal Aid Services of Oklaho- Pataki of Sheehan Pipe Line of his service to OU’s health J ma for her service as Law Construction Co.; Fred Slick- care providers and physicians Week chair; Matthew Farris er of Slicker Law Firm PC; over the past 40 years. of Rogers and Bell served as and Bill Newton of Newton, Community Outreach chair; oy John Martin, general O’Connor, Turner & Ketchum and Chad McLain of Graves counsel for the Oklahoma PC were awarded the Tulsa R McLain PLLC for his work Department of Consumer County Bar Association’s on the Capital Campaign Credit in Oklahoma City, was Golden Rule Awards. recently appointed by the Committee. ulsa County Bar Associa- State Regulatory Registry onita Bourns Douglas tion President Jim Got- Board of Managers to serve T has been elected presi- wals presented the following D on the Mortgage Testing and dent of the Association of President’s Awards at the Education Board. Continuing Legal Education TCBA annual banquet: Faith (ACLEA), an organization wight L. Smith of Orlowski of Sneed Lang PC devoted to improving the Dwight L. Smith PLLC in for assistance throughout the D performance of continuing Tulsa was elected to a third year; Judge William Kel- legal education professionals. consecutive three-year term lough for his efforts building Ms. Douglas is vice president as a member of the ABA’s a bridge between the judicia- of professional services for House of Delegates represent- ry and the bar; Christy Caves InReach. ing the Solo, Small Firm and of TU Law School and Grant General Practice Division at Lloyd of Richards & Connor the ABA’s Annual Meeting in PLLP for their efforts in the San Francisco. Mr. Smith was TCBA mentoring program; also appointed Chair of the Michael Ashworth of ABA Standing Committee on Schroeder & Associates for the Delivery of Legal Services. his efforts on the Bench and he Tulsa County Bar Bar and Think Pink project; Zach Smith Association presented of Gorospe & T Brandon Heim- numerous awards at its annu- Smith and rowe & Dunlevy dale Gary A. al banquet in August. The of the TCBA for their Cannounces that Bryant, award winners were: Daniel efforts renovating the TCBA former Crowe & Leonard Pataki Gomez at Connner & Win- website; and Dunlevy attorney and partner ters, Outstanding Young Law- of Doerner, Saunders, Daniel at Mock, Schwabe, Waldo, Judge Jane yer; Judge Doris Fransein, & Anderson LLP, Elder, Reeves & Bryant has Wiseman Molly Aspan Outstanding Senior Lawyer; and joined the firm’s Oklahoma Kathy Neal of McAfee & Taft, of Hall, Estill, Hardwick, City office as a director. Gable, Golden & Nelson PC, Neil Bogan Professionalism oss Molina Oliveros PC Chad McLain of Graves Award; Sarah E. Hansel of Rannounces the opening

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1807 of its new Oklahoma City Heritage Professional Plaza, presented the keynote office. John Morozuk recently 425 E. 22nd St., Suite 101, address “Seven Reasons Why joined the firm and will man- Owasso. The firm’s phone Being an Attorney is the Best age its Oklahoma City office. number is 918-376-4610. Job in the Whole Wide Mr. Morozuk’s practice focus- World” at the Tulsa County ercy Health Inc. recently es on pipeline gathering Bar Association’s annual named A. Brooke and transportation, oil and M meeting and banquet. Timmons, vice president of gas marketing, natural gas government relations. Brooke illiam B. Federman of storage and processing as will be responsible for direct- Federman & Sherwood well as exploration and W ing state and federal legisla- spoke at the Business Law production law. tive issues and positions for Section of the 2013 ABA eremy R. Fitzpatrick of the corporation. Ms. Timmons annual meeting in San Fran- JOklahoma City has joined earned her J.D. from TU cisco. His speech addressed RKI Exploration & Produc- in 1998. issues involving securities tion LLC as legal and regula- class actions as well as share- ichael May of Tulsa tory director. He will be re- holder derivative lawsuits. and Cody Thomas of sponsible for the company’s M Edmond have joined Pray How to place an announce- legal and compliance matters. Walker’s energy law group as ment: The Oklahoma Bar Journal Previously Mr. Fitzpatrick associates and will focus on welcomes short articles or served in various capacities at energy law and title examina- news items about OBA mem- the Kirkpatrick Oil Company. tion. Mr. May is a 2011 gradu- bers and upcoming meetings. He earned his undergraduate ate of OU Law School and If you are an OBA member and and law degrees from OU. you’ve moved, become a part- Mr. Thomas graduated from ner, hired an associate, taken ableGotwals announces OCU College of Law in 2011. on a partner, received a promo- GAdam C. Doverspike has tion or an award, or given a joined the firm as an associate talk or speech with statewide in the Tulsa office. His prac- or national stature, we’d like tice will focus on energy to hear from you. Sections, industry litigation. Mr. committees, and county bar Doverspike clerked for Chief associations are encouraged Judge Gregory K. Frizzell and to submit short stories about practiced for three years in upcoming or recent activities. Sidley Austin LLP’s Washing- Honors bestowed by other ammy Wescott, Tulsa ton D.C. Energy Practice publications (e.g., Super Law- County assistant district Group. He graduated from T yers, Best Lawyers, etc.) will not attorney, presented “The the Duke School of Law be accepted as announcements Proactive Prosecutor in Alter- (Oklahoma-based publications in 2009. native Courts” at the 19th are the exception.) Information ris Ted Ledford announc- Annual National Association selected for publication is Kes the formation of Led- of Drug Court Professionals printed at no cost, subject to ford Law Firm PLLC. His Training Conference in editing, and printed as space practice will focus on repre- Washington, D.C. permits. sentation of plaintiffs and Submit news items via email to: ohn D. Rothman of Dispute defendants in civil litiga- Jarrod Beckstrom Resolution Consultants tion matters. Mr. Ledford’s J Communications Dept. presented “Ethical Challenges plaintiff’s practice focuses on Oklahoma Bar Aassociation & Dilemmas in Mediation representing businesses and (405) 416-7084 and Arbitration” at the Okla- individuals in cases involving [email protected] homa Paralegal Association commercial disputes, personal at its summer seminar. rticles for the Oct. 12 injury, insurance bad faith, Aissue must be received by medical malpractice, wrongful ichael C. Turpen of Sept. 16. termination and toxic torts. MRiggs, Abney, Neal, The law office is located at Turpen, Orbison and Lewis

1808 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 IN MEMORIAM

obert “Bob” Beck of Nor- Life Master duplicate bridge game of cards. He was a Rman died on Aug. 7, 2013. player. He was also a fervent member of the Cattlemen’s He was born Sept. 14, 1947 in OU football fan, attending Association, Wagoner County Indianapolis, Ind. He graduat- every home game from 1952 Farm Bureau, Bedouin Shrine ed Putnam City High School. to 2001 when family illnesses Temple and was a 32nd Following graduation, he caused him to miss a few. A degree mason. served two-years in the U.S. memorial service is planned oger Owen Housley of Army. He received his bache- for Monday, Sept. 16 at 10:30 Norman died on Aug. 4, lor’s degree from OSU and a.m. at Church of the Servant, R 2013. He was born on April after working for Kodak and 14343 N. MacArthur, Oklaho- 10, 1945 and was raised in as a reporter in Rochester, ma City. Memorial contribu- Cushing. He graduated as N.Y., he moved back to Okla- tions can be made in Mr. Dun- class president from Cushing homa and earned his law can’s name to the Muscular High School in 1963. He degree from OU in 1978. He Dystrophy Association or the received his bachelor’s degree practiced law in Edmond and University of Oklahoma Gen- from OU in 1967 and went on later became a judge in the eral Scholarship Fund. Oklahoma City court system. to graduate number one in his Mr. Beck served several years illiam Haden “Bill” class from the OU College of as a judge and then resumed WHaworth of Ft. Gibson Law in 1970. Mr. Housley also practicing law in Oklahoma died Sept. 1, 2013. He was served as editor of the OU City. He spent the last half born on Sept. 26, 1926 in Ft. Law Review. He began his of his career working with Gibson. He graduated from career in McAlester where he computers and eventually Ft. Gibson High School where practiced law until 1978 and He worked at CompuServe and he played basketball. served as president of the served in World War II and co-authored several books on Pittsburg Country Bar Associ- served in the Pacific theater. computer software. Memorial ation. He began work in pri- Trained as a sharpshooter, he donations can be made to The vate practice in Norman in often served as chauffeur to Best Friends Animal Society. 1978. Aside from his family, the staff general and visiting he loved adventure and was aul C. Duncan of Oklaho- dignitaries, including John an avid traveler, skier and Pma City died Sept. 5, 2013. Wayne who employed Mr. SCUBA diver. Memorial Born Oct. 1, 1940, he was a Haworth after he was dis- donations can be made to graduate of Northwest Clas- charged. He was elected to a charitable organization of sen High School where he the Oklahoma House of Rep- the giver’s choice. was president of the honor resentatives at the age of 21 ohn Richard Kunkel died society. He earned his under- and earned his undergraduate on Aug. 23, 2013. He was graduate and law degrees degree from Northeastern J born in Norman on Dec. 7, from OU, being admitted to State College and his law 1935. He graduated from Nor- the bar in 1964. Following degree from TU while serving man High School in 1953. He graduation, he entered private in the legislature. He served received his bachelor’s degree practice at Pierce, Mock, Dun- 10 years in the lower house from OU in 1956 and his J.D. can, Couch and Hendrickson. and served as floor leader and from OU in 1959. He was the In 1971, Mr. Duncan became minority whip. He was also owner of Norman Supply civil division chief for Attor- elected to one term in the Company from 1979 until ney General Larry Derryberry, state senate in 1962. After 2013. He was a passionate a post he held for eight years. leaving the legislature, he golfer and shared his love of He returned to private prac- operated The Haworth Com- the game with friends and tice from 1978 to 1990, then pany, an insurance, real estate family regularly. Memorial served as general counsel to and investment firm. He donations can be made to the the Oklahoma State and Edu- served as district judge from OU Foundation. cation Employees Group 1972 to 1977. He loved poli- Insurance Board. He retired in tics, ranching, business, boat- 2010. Mr. Duncan was Gold ing, his animals and a good

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1809 teven Mortimer of Yukon died on Aug. 7, S2013. He was born July 31, 1970. He earned his J.D. from OU and was admitted to the bar in 2003. ary Edison Payne of Oklahoma City died Gon Aug. 27, 2013. Gary was born on Oct. 31, 1944 in Denison, Texas and grew up in Madill. He received his bachelor’s degree Do the from OSU. He served in the Oklahoma Army National Guard while attending law school. He received his law degree from the OU College of Law in 1969. He was elected to Oklahoma House of Representa- tives in 1968 where he represented Atoka, Coal, Love and Marshall Counties. He had a long, distinguished law career in Atoka, Okla- right homa City and Edmond. He was a current board member of the National Association of Administrative Law Judges. He served on the Edmond School Board and was chief adminis- trative law judge for the Oklahoma State Department of Health and more recently a municipal judge for the City of Oklahoma thing. City. Memorial donations can be made to the Oklahoma Baptist Home for Children or the Quail Springs Baptist Church Student Mis- sions. lma Faye Posey Washington of Oklaho- Ama City died Sept. 31, 2013. She was a graduate of Douglass High School and earned her undergraduate degree from Central State College in 1967. In 1984 she received her J.D. from OCU. She was a member of Zeta Phi Beta Sorority, holding local, regional and national offices. We will be civil, courteous, respectful, honest and fair in communicating with adversaries, orally and in writing. Standards of Professionalism §3.1a The OBA Professionalism Committee encourages you to review all the standards at http://bit.ly/14ErsGp

1810 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 WHAT’S ONLINE

Member Benefit Renting a car for your fall getaway?

Both Avis and Hertz offer discounts for OBA members!

Her t z : Disco u n t n u m ber CDP 0164851. Co n tact He r t z to l l -f r e e at 800-654-3131 o r w w w .h e r t z .co m Av is : Disco u n t n u m ber A674000. Co n tact Av i s to l l -f r e e at 800-831-8000 o r w w w .a v i s .co m

Th e s e a r e b o t h OBA m e m b e r b e n e f i t s ! Fi n d o u t m o r e a t w w w .o k b a r .o r g /m e m b e r s /m e m b e r s /b e n e f i t s

ZOMBIES, RUN! Online Like to run? Afraid of zom- CLE bies? Check out the mobile app Zombies, Run! Available Online and video CLE for iOS and Android. If a seminars make it easy to cram zombie chasing after you isn’t some last-minute CLE into motivation to run a little faster, these last few months of 2013. we don’t know what is! Ph oto Ga l l e r y The Second Annual Lawyers Helping Lawyers Assistance www.okbar.org/ Program Cornerstone Banquet members/CLE was a hit! Relive the memories by checking out the online photo gallery. www.okbar.org/members/ www.lhlfoundation.org/ worklifebalance/tips events

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1811 CLASSIFIED ADS

SERVICES SERVICES

OF COUNSEL LEGAL RESOURCES — SINCE 1992 — LEGAL RESEARCH: retired law professor/trial attor- Exclusive research & writing. Highest quality: trial and ney available to do research, brief writing, investiga- appellate, state and federal, admitted and practiced tions, trial preparations, special projects, leg work, etc. U.S. Supreme Court. Over 20 published opinions with on hourly basis. Les Nunn 404-238-0903. Not admitted numerous reversals on certiorari. MaryGaye LeBoeuf in OK. 405-728-9925, [email protected]. INSURANCE EXPERT - Michael Sapourn has been qualified in federal and state courts as an expert in the BUSINESS VALUATIONS: Marital Dissolution * Es- Insurance Agent’s Standard of Care, policy interpreta- tate, Gift and Income Tax * Family Limited Partner- tion and claims administration. An active member of ships * Buy-Sell Agreements * Mergers, Acquisitions, the Florida Bar, he spent 30 years as an Insurance agent Reorganization and Bankruptcy * SBA/Bank required. and adjuster. He is a member of the National Alliance Dual Certified by NACVA and IBA, experienced, reli- faculty, a leading provider of education to agents. Call able, established in 1982. Travel engagements accepted. 321-537-3175. CV at InsuranceExpertWitnessUS.com. Connally & Associates PC 918-743-8181 or bconnally@ connallypc.com. BRIEF WRITING, APPEALS, RESEARCH AND DIS- COVERY SUPPORT. Eighteen years experience in civil HANDWRITING IDENTIFICATION litigation. Backed by established firm. Neil D. Van POLYGRAPH EXAMINATION Dalsem, Taylor, Ryan, Schmidt, Van Dalsem & Wil- Board Certified Court Qualified liams PC, 918-749-5566, [email protected]. Diplomate — ABFE Former OSBI Agent TRAFFIC ACCIDENT RECONSTRUCTION Life Fellow — ACFEI FBI National Academy INVESTIGATION • ANALYSIS • EVALUATION • TESTIMONY Arthur D. Linville 405-736-1925 25 Years in business with over 20,000 cases. Experienced in automobile, truck, railroad, motorcycle, and construction zone DO YOU OR YOUR CLIENTS HAVE IRS PROBLEMS? accidents for plaintiffs or defendants. OKC Police Dept. 22 years. Investigator or supervisor of more than 16,000 accidents. Free consultation. Resolutions to all types of tax prob- Jim G. Jackson & Associates Edmond, OK 405-348-7930 lems. Our clients never meet with the IRS. The Law Office of Travis W. Watkins PC. 405-607-1192 ext. 112; TREE DAMAGE, CONSULTING ARBORIST, expert 918-877-2794; 800-721-7054 24 hrs. www.taxhelpok.com. witness, tree appraisals, reports, damage assessments, herbicide damage, hazard assessments, all of Oklaho- Want To Purchase Minerals AND OTHER ma and beyond. Certified arborist, OSU horticulture OIL/GAS INTERESTS. Send details to: P.O. Box 13557, alumni, 23 years in business. BillLongArborist.com; Denver, CO 80201. 405-996-0411. FORENSIC ACCOUNTING SERVICES STATE RANKINGS. Recent Births to Unmarried BY FORMER IRS SPECIAL AGENTS Women 2011. Utah ranked 1st Oklahoma ranked 40th. Litigation support, embezzlement and fraud investi- http://www.census.gov/prod/2013pubs/acs-21.pdf gations, expert witness testimony, accounting Ask how the Mormons do it. Contact Choate, Water irregularities, independent determination of loss, due Engineering , 209 East Broadway Avenue, Seminole, diligence, asset verification. 30+ years investigative 74868, 405-382-8883, [email protected]. and financial analysis experience. Contact Darrel James, CPA, [email protected] or OFFICE SPACE Dale McDaniel, CPA, [email protected], 405-359-0146. MIDTOWN TULSA LAW OFFICE SUITES located near TU, four miles from downtown, includes 5 newly reno- INTERESTED IN PURCHASING PRODUCING & vated offices, reception area, kitchen, large conference NON-PRODUCING Minerals; ORRI; O & G Interests. room, outdoor patios, parking lot. For more informa- Please contact: Patrick Cowan, CPL, CSW Corporation, tion call 918-582-6900. P.O. Box 21655, Oklahoma City, OK 73156-1655; 405- OFFICE SPACE AVAILABLE 71st & Yale. Executive 755-7200; Fax 405-755-5555; email: [email protected]. and smaller offices available. Conference room, re- ception area, kitchen, wifi internet and telephone avail- Appeals and litigation support able. Rent is negotiable. Traditional and virtual tenancy are possible. Interested contact Paul Gee pgee@ Expert research and writing by a veteran generalist bladesgeelaw.com or David Blades dblades@blades who thrives on variety. Virtually any subject or any geelaw.com or (918) 814-3411. type of project, large or small. NANCY K. ANDER- SON, 405-682-9554, [email protected]. Creative. Clear. Concise.

1812 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 OFFICE SPACE POSITIONS AVAILABLE 514 COLCORD DRIVE - STUNNING office space in THE CITY OF ARDMORE is seeking qualified candi- the heart of the Arts District. GREAT modern design dates for the newly created position of City Attorney. with 6 window offices, bright conference room, 2 rest- Applicants must be members in good standing of the rooms, file area and copy room. PRIME LOCATION Oklahoma Bar Association with a minimum of four (4) walking distance to Oklahoma City Court House, Okla- years of experience in general areas of practice includ- homa County Court House, City Hall and Devon Tow- ing commercial and real estate transactions. Preference er. Close to parking. Email [email protected] or will be given to applicants with experience in repre- [email protected]. senting governmental entities. The City offers excellent benefits and competitive salaries. Interested candidates OFFICE SHARE should submit an application, along with a writing sample, to the attention of the Human Resources Direc- OFFICE SHARE FOR RENT: NW Classen, OKC. Tele- tor at 23 S. Washington, Ardmore, Oklahoma 73402 by phone, library, waiting area, receptionist, telephone an- September 30, 2013. swering service, desk, chair, file cabinet, included in rent; one for $290, $390, and $450 per mo. Free parking. AV RATED, OKLAHOMA CITY INSURANCE DE- No lease required Gene or Charles 405-525-6671. FENSE LAW FIRM, located in Bricktown, with empha- sis on commercial trucking litigation, seeks associate SOUTH OKLAHOMA CITY LAW FIRM seeks attorney attorney with 3-4 years of litigation experience and ex- for office sharing arrangement. Rent is negotiable. The cellent writing skills. Compensation package is com- firm may refer clients, and or have available additional mensurate with level of experience. Please send résumé legal work. Inquiries should contact Reese Allen at in confidence via email to [email protected]. 405-691-2555 or by fax at 405-691-5172. THE LATIMER COUNTY DISTRICT ATTORNEY’S DOWNTOWN OKC AV FIRM has office space avail- OFFICE is seeking an Assistant District Attorney for its able for sharing arrangement. Rent is negotiable. In- Wilburton Office. The office is a one-attorney office. cludes office space and overhead costs such as firm Primary responsibilities include the criminal prosecu- phone, copier, fax, conference room and receptionist tion of all felony and misdemeanor cases, provide ad- services. The firm may refer clients or have available vice to local law enforcement and county officials, and additional legal work. Inquiries should contact Megan perform other duties as assigned. Salary DOE. Appli- at 405-605-2375. cant must have a J.D. from an accredited law school; legal experience in criminal law and prior courtroom experience preferred. Must be member of good stand- POSITIONS AVAILABLE ing with the Oklahoma State Bar. Applicants may sub- COLLINS, ZORN & WAGNER PC, an AV-rated Okla- mit a résumé , postmarked no later than SEPTEMBER homa City firm, seeks an EXPERIENCED PARA- 30, 2013, to the following address: District Attorney’s LEGAL for assistance in preparing cases for trial and Office, 100 S. Broadway, Room 300, Poteau, OK 74953, attending trials across the state. Position requires com- 918-647-2245, Fax: 918-647-3209. puter knowledge, trial assistance experience, organiza- OFFICE MANAGER/LEGAL SECRETARY NEEDED tion, self-motivation and all aspects of moving a case FOR SMALL DOWNTOWN OKC FIRM. Excellent toward trial. Please submit résumé and salary require- bookkeeping and organizational skills required. Civil ments to “Box BB,” Oklahoma Bar Association, P.O. and criminal experience preferred. Competitive salary Box 53036, Oklahoma City, 73152. and benefits. Send résumé, references, and writing sample to “Box G,” Oklahoma Bar Association, P.O. LAW FIRM SEEKING ASSOCIATE ATTORNEY in Box 53036, Oklahoma City, OK 73152. downtown Oklahoma City, with 3-10 years experience in Indian Law and litigation, with a commitment to SMALL TULSA LITIGATION FIRM seeks experienced representing tribes and tribal organizations. Preference research, discovery, and brief writing attorney. Prefer will be given to attorneys with demonstrated experi- 3+ years experience, but will consider all candidates ence and/or education in American Indian Law. Ap- with strong writing abilities. Excellent opportunity for plicant must be licensed to practice in at least one juris- growth. Salary plus bonuses and benefits. Please sub- diction; membership in good standing in the Oklahoma mit a cover letter, résumé and writing samples to: “Box Bar is preferred, if not a member of the Oklahoma Bar, CC,” Oklahoma Bar Association, P.O. Box 53036, Okla- the applicant must pass the Oklahoma Bar within 15 homa City, OK 73152. months. Applicant should possess excellent analytical, writing and speaking skills and be self-motivated. NW OKC LAW FIRM SEEKS LEGAL ASSISTANT. Compensation commensurate with experience. Excel- Should possess knowledge of Microsoft Office. Duties lent benefits.P lease submit the following required doc- include document drafting, client relations, and case uments: a cover letter that illustrates your commitment management. Civil, domestic, PI, and/or med-mal ex- to promoting tribal government and Indian rights, cur- perience preferred. FT or PT. Attention to detail and rent résumé, legal writing sample, proof of bar admis- proof reading is very important. Submit résumé and sion, and contact information for three professional references via fax 405-767-0529. references to: [email protected].

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1813 POSITIONS AVAILABLE POSITIONS AVAILABLE COLLINS, ZORN & WAGNER PC, an AV-rated Okla- DOWNTOWN OKLAHOMA CITY, 10 LAWYER, AV homa City firm, seeks COMPETENT AND CONFI- RATED FIRM SEEKS ATTORNEY, a man or woman of DENT ATTORNEY with 1-3 years experience. Firm character (organized, determination, humility and loy- specializes in civil rights, employment law and insur- alty) with 3-5 years experience in estate planning and ance defense cases. Position will emphasize trial prep; commercial law and background in accounting. An ad- must be able to conduct discovery, take depositions vanced degree in accounting or CPA is preferred. Bo- and attend court proceedings throughout the state and nus opportunity is available and salary is commensu- in Federal Court. Please submit résumé and salary re- rate with experience. Applications will be kept in the quirements to “Box AA,” Oklahoma Bar Association, strictest confidence. Under cover letter, send résumé PO Box 53036, Oklahoma City, OK 73152. and transcripts to “Box E,” Oklahoma Bar Association, OKLAHOMA COURT OF CRIMINAL APPEALS LAW P.O. Box 53036, Oklahoma City, OK 73152. CLERK POSITION. Immediate opening. Permanent position for Law Clerk to Judge Clancy Smith, Court of NW OKC LAW FIRM SEEKS FULL-TIME LEGAL Criminal Appeals. Duties will include review of felony SECRETARY. Criminal law experience preferred. and capital cases on certiorari, direct appeal and post- Should possess knowledge in Microsoft Office. Duties conviction, involving: review of briefs, the original trial include scheduling, maintaining files, filing, and other records, evidence and transcripts, research of applica- duties as needed. Submit résumé and references via ble law, recommending case dispositions; as well as fax 405-767-0529. drafting memoranda to the judges, orders, opinions for THE MUSCOGEE (CREEK) NATION IS SEEKING AP- publication and in summary form and special opin- PLICATIONS for the position of Assistant Attorney ions. Criminal law, appellate procedure and constitu- General. The Assistant Attorney General is directly re- tional law experience preferred. Excellent research and sponsible to the Attorney General and will assist in car- writing skills required. Please send résumé with refer- rying out any function, duty or responsibility delegated ences and writing sample to the attention of Clancy to the Attorney General. The Assistant Attorney Gen- Smith, Vice Presiding Judge, Court of Criminal Ap- eral will provide assistance, advice and counsel to Na- peals, 2100 N. Lincoln, Suite 2, Oklahoma City, OK tional Council Representatives, Officers and employees 73105. Applications to be received by September 16, of the Muscogee (Creek) Nation and Boards and Com- 2013. An Equal Opportunity Employer. mittees on matters of official interest. Applicant must be a graduate of an accredited law school, knowledge- ABOWITZ, TIMBERLAKE, DAHNKE & GISINGER, a able and/or have experience of Federal Indian Law, li- mid-sized AV-rated law firm located in downtown censed to practice law in any state and must be in good Oklahoma City, is seeking to add an Associate Attor- standing with that jurisdiction, willing to become li- ney with at least 5-7 years’ experience in litigation. Suc- censed to practice law in Oklahoma, must be a member cessful candidate must have good research & writing of the Muscogee Nation Bar Association in good stand- skills, the ability to manage a fast paced case load, de- ing, or be eligible to become a member. Submit résumé, positions, motions, trial experience, as well experience job application, salary requirement, list of references in insurance coverage disputes. Our firm offers a com- and writing sample no later than May 10, 2013 to petitive salary & benefits.P lease submit résumé , refer- Muscogee (Creek) Nation Personnel Services, P.O. Box ences, salary requirements & writing sample to Diana 580, Okmulgee, OK 74447. Please visit www.musco Akerman at [email protected]. geenation-nsn.gov for the job application. INSPECTOR GENERAL - Under administrative di- rection of Commissioner or designee & serving as an SMALL TULSA FIRM seeks associate with 0-3 years ombudsman by, receiving, investigating, evaluating & experience. We are looking for a higly motivated person presenting facts & findings concerning complaints or who will handle probate and estate planning matters. At- problems identified by or concerning Department tention to details required. Helpful if candidate has real personnel. In add, this position will partner w/other estate and oil and gas background, as well as familiarity state agencies as needed to conduct internal investiga- with guns and carry licenses. Excellent opportunity for tion. Requires: Bachelor’s degree & at least 5 yrs of growth. Salary plus bonuses. Please submit résumé and prof. exp. in field of administrative investigations or salary requirements to “Box L,” Oklahoma Bar Associa- law enforcement or an equivalent combination of ed- tion, P.O. Box 53036, Oklahoma City, OK 73152. ucation and exp. Pref. may be given to individuals THE OKLAHOMA TAX COMMISSION, LEGAL DIVI- who have been certified by Council for Law Enforce- SION seeks an attorney for an opening in its OKC of- ment and Education Training (CLEET). $70,000+. fice, Protests/Litigation Section. Applicants must be li- ODMHSAS offers excellent benefit & retirement pack- censed to practice law in Oklahoma. 0-5 years’ ages; Send résumé w/cover letter referencing job title experience preferred. Submit résumé and writing sam- & #2014-11 CO to address below w/copy of your most ple to Abby Dillsaver, Deputy General Counsel, 120 N. recent performance evaluation. Reasonable accommo- Robinson, Suite 2000W, Oklahoma City, OK 73102- dation to individuals w/disabilities may be provided 7801. The OTC is an equal opportunity employer. upon request. Application period: 08-28-13 - 9-27-12. EOE [email protected].

1814 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013 POSITIONS AVAILABLE CLASSIFIED INFORMATION

FENTON, FENTON, SMITH, RENEAU & MOON, AN CLASSIFIED RATES: $1 per word with $35 minimum per in- AV RATED OKLAHOMA CITY FIRM, seeks an associ- sertion. Additional $15 for blind box. Blind box word count ate attorney with 0-3 years’ experience. Excellent re- must include “Box ___, Oklahoma Bar Association, P.O. Box search and writing skills essential. Deposition experi- 53036, Oklahoma City, OK 73152.” Display classified ads with ence a plus. The attorney will work with partners on bold headline and border are $50 per inch. See www.okbar.org insurance defense, medical malpractice and products for issue dates and display rates. liability cases. Health insurance and other benefits in- DEADLINE: Theme issues 5 p.m. Monday before publication; cluded. Résumé , transcript and writing sample are re- Court issues 11 a.m. Tuesday before publication. All ads must quired. Send résumés to Attn: Denise Abston, 211 N. be prepaid. Robinson, Ste. 800N, Oklahoma City, OK 73102. SEND AD (email preferred) stating number of times to be pub- LITIGATION PARALEGAL. Love’s Travel Stops & lished to: Country Stores, Inc. seeks a full-time litigation parale- [email protected], or gal. To view the job description and apply for the posi- Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036, tion please visit our website at www.loves.com/jobs. Oklahoma City, OK 73152. Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an en- dorsement of the procedure or service involved. All placement notices must be clearly non-discriminatory.

OKLAHOMA CHILD SUPPORT SERVICES, a division of the Oklahoma Department of Human Services Announcement 13-M161U ATTORNEY IV, Tulsa OCSS II OKLAHOMA CHILD SUPPORT SERVICES is seeking a full-time attorney for our Tulsa OCSS II Office located at 3840 S. 103rd E. Ave., Ste. 109 Tulsa, Oklahoma 74146. The position involves negotiation with other attorneys and customers as well as preparation and trial of cases in child support related hearings in district and administrative courts. In addition, the successful candidate will help establish part- nership networks and participate in community outreach activities within the service area in an effort to educate others regarding our services and their beneficial impact on families. In depth knowledge of family law related to paternity establishment, child support, and medical support matters is preferred. Preference may also be given to Want to save some Volume 78 ◆ No. 35 ◆ Dec. 22, 2007 candidates who live in or are willing to relocate to the service area. paper? Go online Active membership in the Oklahoma Bar Association is required. to my.okbar.org/ This position has alternate hiring levels. The beginning salary is at Login and sign in. least $40,255.08 annually with an outstanding benefits package including health & dental insurance, paid leave & retirement. Inter- Click on “Roster ested individuals must send a cover letter noting announcement Info” and switch number # 13-M161U, an OKDHS Application (Form 11PE012E), resume, three reference letters, and a copy of current OBA card to: to electronic to Department of Human Services, Human Resource Management Divi- receive court sion, Box 25352, Oklahoma City, OK 73125 or email the same to [email protected]. OKDHS Application (Form 11PE012E) may found at issues. http://www.okdhs.org/librabry/forms/hrmd. Applications must be received no earlier than 8:00 am on September 13, 2013, and no later Court Material than 5:00 pm on October 2, 2013. For additional information about this job opportunity, please email [email protected]. THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY EMPLOYER

Vol. 84 — No. 23 — 9/14/2013 The Oklahoma Bar Journal 1815 THE BACK PAGE

May It Please the Court By Lisbeth McCarty

Years ago, I was sitting said to the defendant, in the courtroom of the “It wasn’t that long ago late Judge Twyla Mason when you were before me. Gray in Oklahoma When I gave you the sus- County, waiting for an pended sentence, I told evidentiary hearing to you that you were not begin. Before the evi- supposed to drink, take dentiary hearing, Judge drugs or engage in any Gray was presiding over criminal activity.” a revocation hearing. The defendant, who I was happy I was not apparently had not ever the defendant’s lawyer understood the four- in that case, because the syllable word “activity,” defendant was, proverbi- then blurted out with ally, his own worst the utmost sincerity, enemy. The state’s evi- “But Judge, you never dence showed that a told me I couldn’t do few weeks after having any new crimes!” received a suspended I’m pretty sure I saw sentence, the defendant Judge Gray attempt to had snatched a purse suppress a smile as she from a woman in Brick- caused the state to file an pronounced her verdict: town. Alert pedestrians application to revoke. Suspended sentence had thwarted the crime revoked in full. by tackling the defendant. Judge Gray, with what That attempt at a purse- appeared to be patience Ms. McCarty practices in snatching was what had tinged with exasperation, Norman.

1816 The Oklahoma Bar Journal Vol. 84 — No. 23 — 9/14/2013