Volume 81 u No. 27 u October 9, 2010
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2186 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Theme: pg. 2253 Probate & Estate Planning OBA Creates Editors: P. Scott Buhlinger, Justice Commission Emily Duensing, Thomas E. Kennedy and Leslie D. Taylor
contents Departments October 9, 2010 • Vol. 81 • No. 27 2188 From the President 2262 From the Executive Director 2264 Law Practice Tips 2267 Ethics/Professional Responsibility 2268 Oklahoma Bar Foundation News 2270 Access to Justice 2271 Young Lawyers Division 2278 Calendar 2280 For Your Information 2282 Bench and Bar Briefs 2284 In Memoriam 2281 Editorial Calendar 2288 The Back Page Plus 2234 About Face by Oklahoma Supreme Court Means Discrimination Claims Can be Brought Against Small Employers: Smith v. Pioneer 2191 Estate Tax Issues in 2010: Still Crazy masonry Inc. after all these Years By Kimberly L. Love and Shannon P. Wheeler By Henry Will 2238 Annual Meeting 2199 Logging Out: Digital Estate 2253 OBA Creates Justice Commission Planning By Ryan Kiesel 2255 2011 Committee Sign-Up Form 2207 Simple Estate Planning for your 2256 Five Women Honored with Client’s Children Mona Lambird Spotlight Awards By Ryan J. Duffy By Deborah Bruce 2211 Uniform International Wills Act 2258 Photo Highlights: Women in Law By Patrick Anderson Conference 2215 Recent Changes to the Creditor 2259 Statement of Ownership Claim Process in Oklahoma Estates By Cory Hicks 2223 Dealing with Undue Influence pg. 2258 By LeAnn Page Drummond Photo Highlights: 2229 Update: Rights of Beneficiaries to Women in Law Sue on Behalf of the State Conference By Sarah C. Stewart
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2187 FROM THE PRESIDENT
Normandy, D-Day and a Farmhouse By Allen Smallwood
I have been accused of having an obsession with the Second World War. My excuse is that having been born exactly two years after it was over and having as a first memory of television watching an Army staff sergeant (whose name escapes me at this point) describing the epic battles of that con- flict in an early ’50s television pro- gram called “The Big Picture,” I grew up actually believing that everyone dressed in shades of black, gray and white during that war. I also remem- ber my father pointing out certain friends who were veterans of that war American Cemetery in Normandy, France and at that time were still vibrant well as the American Cemetery at Colleville- young men in their mid-30s. The rav- sur-Mer and other battlefield spots critical to ages of time are sad. With that history, the Normandy Invasion on June 6, 1944. we scheduled a family vacation with friends in Normandy, I thought I knew quite a bit about the inva- France, this summer. sion, but our tour guide, a Brit who has lived in Sainte Mère Église, Normandy, for the last My wife, Barbara, 20 years, possessed encyclopedic knowledge and our second grand- of virtually everything that happened on that daughter, Khloe, spent fateful morning. After viewing the cliffs at 60 days in a farmhouse Pointe du Hoc, where the 2nd Ranger Battal- in Normandy. It was ion, in the process of losing half of its num- located a few miles bers, finally scaled the 200-foot cliffs and inland from the point silenced the guns that had been previously on the coast where removed from the point in anticipation of Utah and Omaha the invasion, we marveled at the thought Beaches joined as the that only a handful of the tens of thousands designated invasion of men involved in this operation had previ- President Smallwood locale on June 6, 1944. ously seen combat. I, along with several practices in Tulsa. The most moving part of the tour was stand- [email protected] members of our associ- (918) 582-1993 ation, met there on July ing on the eastern-most edge of Omaha Beach 4, 2010, and enjoyed a and looking several thousand yards to the east day-long tour of Utah of the most picturesque and beautiful sandy and Omaha beaches, as beach on a warm summer afternoon you could continued on page 2261
2188 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 OFFIC ERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City events Calendar Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa OCTOBER 2010 Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami 12 Death Oral Argument; Kevin Ray Underwood – D-2008-319; 10 a.m.; Glenn A. Devoll, Enid Court of Criminal Appeals Courtroom Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon 14 OBA 2011 Budget Public Hearing; 4 p.m.; Oklahoma Bar Center, Jerry L. McCombs, Idabel Oklahoma City; Contact: Craig Combs (405) 416-7040 Lou Ann Moudy, Henryetta David A. Poarch, Norman 15 OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Ryland L. Rivas, Chickasha Oklahoma City; Contact: John Morris Williams (405) 416-7000 Susan S. Shields, Oklahoma City Association of Black Lawyers Meeting; 11:30 a.m.; Oklahoma Bar James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, Center, Oklahoma City; Contact: Donna Watson (405) 721-7776 OBA/Young Lawyers Division Lawyers Helping Lawyers Assistance Program Training; BAR Center Staff 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donita Douglas John Morris Williams, Executive Director; (405) 416-7028 Gina L. Hendryx, General Counsel; OBA Military Assistance Task Force Meeting; 2 p.m.; Oklahoma Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Communications; Craig D. Combs, Director of Dietmar Caudle (580) 248-0202 Administration; Travis Pickens, Ethics Counsel; 18 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; MCLE Commission; Jane McConnell, Coordinator Contact: Andrea Braeutigam (405) 640-2819 Law-related Education; John Burchell, Information 20 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Services Manager; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Counsels; Katherine Ogden, Staff Attorney, Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 Tommy Butler, Sharon Orth, Dorothy Walos 21 OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma and Krystal Willis, Investigators Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Manni Arzola, Debbie Brink, Melissa Brown, Kade A. McClure (580) 248-4675 Stephanie Burke, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Brandon Haynie, Suzi Hendrix, Misty Hill, Bar Center, Oklahoma City and OSU Tulsa; Contact: Jack Brown Debra Jenkins, Amy Kelly, Jeff Kelton, (918) 581-8211 Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, 22 OBA Communications Committee Meeting; 12:30 p.m.; Oklahoma Wanda Reece-Murray, Tracy Sanders, Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Mark Schneidewent, Robbin Watson, Douglas Dodd (918) 591-5316 Laura Willis & Roberta Yarbrough 23 OBA Young Lawyers Division Board of Directors Meeting; EDITORIAL BOARD 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Molly Aspan Editor in Chief, John Morris Williams, News & (918) 594-0595 Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott 27 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Buhlinger, Bartlesville; Dietmar K. Caudle, Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Lawton; Sandee Coogan, Norman; Emily Duen- Sharisse O’Carroll (918) 584-4192 sing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; For more events go to www.okbar.org/calendar Leslie D. Taylor, Oklahoma City; January Windrix, Poteau The Oklahoma Bar Association’s official website: www.okbar.org NOTICE of change of address (which must be in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. 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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2189 2190 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Probate & ESTATE PLANNING
Estate Tax Issues in 2010: Still Crazy after all these Years By Henry G. Will
ur saga began in 2001 when EGTRRA1 was passed by Congress and signed by President George W. Bush. Every- Oone knew the federal estate and generation-skipping transfer (GST) taxes expired on Dec. 31, 2009, so everyone thought Congress would enact a permanent fix effective in 2010. Over the past 10 years under EGTRRA, the federal estate tax went through a series of changes so that in 2009 the exemption amount (unified credit) for each decedent was $3.5 million and the top estate tax rate was 45 percent. Most practitioners felt confident that this tax regime would be made permanent by Congress for 2010 and the following years, with a few tweaks, of course. However, the extremely partisan Congress did not pass legislation in 2009 to stabilize the estate tax. On Jan. 1, 2010, the “impossible”2 hap- pened: The federal estate and GST taxes expired and the estate tax world became crazier than ever.
Well into the fourth quarter of 2010 there is in 2011, practitioner responses to the current no clarity on federal estate and gST tax law situation and prospects for legislation. from Congress. While estate planners have ESTATE TAX LAW IN 2010 become familiar with the law now in effect in 2010 and that which is on the books for 2011, In 2010, no federal estate tax applies to estates much interpretation of existing law and specu- of decedents dying after Dec. 31, 20093 (although lation about proposed legislation has left us a retroactive estate tax could be passed), no GST very uncertain about how to guide our clients. tax applies to generation-skipping transfers 4 It is still crazy after all these years. made after Dec. 31, 2009 (although a retroactive GST tax could be passed), and a modified car- This article will review the estate tax and ryover basis (instead of a stepped up basis) related laws in 2010, some of the issues raised applies to assets of decedents dying in 2010.5 by the status of the law in 2010 and the sunset- The federal gift tax continues to apply to life- ting of EGTRRA at the end of 2010, the pros- time transfers made during 2010, subject to a pect of pre-EGTRRA (i.e., 2001) law returning lifetime exemption of $1 million and a per
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2191 donee exclusion of $13,000. Importantly, the gift GST tax impact years later.13 Some counsel have tax rate in 2010 is 35 percent,6 but this rate will suggested that gifts to grandchildren in trust be change to a top rate of 55 percent in 2011.7 Will avoided in 2010, or that gifts be made to donor’s Congress in 2010 enact estate and gST taxes children, who in turn would fund a trust for retroactive to the beginning of 2010, or will any their own children in order to avoid the donor’s tax adopted be prospective only? If estate and “transfer” to a GST trust. Other anomalies pos- GST taxes are adopted (whether effective in sibly resulting from the sunset provision of 2010 or 2011), will they be similar to what was EGTRRA include the following: in effect at the end of 2009 with a $3.5 million applicable credit amount and a top tax rate of (a) Gifts deemed to have been completed in 45 percent, or will there be significant modifi- 2010 because of Code Section 2511(c) cations? Will Congress eliminate the federal under the law as written must be disre- estate and GST taxes altogether? Will Congress garded if EGTRRA is treated as if it had let the 2001 estate tax regime scheduled to never been enacted: Will future gift tax become applicable in 2011 as is now provided calculations need to take the 2010 trans- by the sunset rules of EGTRRA?8 fers into account under Section 2502(a)? Publicity about recent deaths of wealthy Americans in 2010 keeps speculation alive (b) If carryover basis applies in 2010 but is about the estate tax.9 However, most planners to be treated as if it had never been have stopped guessing what Congress will do enacted due to the sunset provisions of because they were surprised (if not shocked) EGTRRA Section 901, will a sale of the when the 2009 estate and gST tax laws were property after 2010 use carryover basis allowed to expire with no successor estate or or stepped-up basis to determine gain GST tax for 2010.10 Many professionals in the or loss for income tax purposes? estate planning field have called for Congress GUIDANCE IN 2010 to act, including some who appeared before Congress urging action to provide clarity in In 2010, estate planners have been guided by this area. For example, the Iowa Bar Associa- numerous estate planning articles, books and tion wrote a letter with over 1,000 lawyers’ seminars that focus on the current unique situ- signatures to Sen. grassby urging legislation ation. Two seminal documents published early and the American College of Trust and Estate in 2010 have provided excellent guidance for 14 Counsel (ACTEC) detailed the many issues estate planners this year. Using this guidance, that have surfaced and how they could be cor- we now are notifying clients of the uncertain rected11 and circulated the list to congressional state of affairs, reviewing documents for hid- staff members. den traps such as tax-based formula clauses for funding marital and by-pass trusts and other ISSUES IN 2010 CAUSED BY ONE YEAR provisions in wills and trusts that might have ESTATE AND GST TAX SUSPENSION unintended consequences depending on how AND THE SUNSET PROVISIONS the tax law applies upon a client’s death, and OF EGTRRA counseling against transfers to gST trusts. In Estate planners have struggled throughout 2010, estate planners are trying to more clearly 2010 to identify and answer many questions specify in wills and trusts how distributions raised by EGTRRA’s provisions for suspension are to occur if no estate or GST tax applies to of estate and gST tax laws, the sunsetting of the decedent’s estate and to draft flexible pro- EGTRRA on Dec. 31, 2010, and the uncertainty visions that allow an estate plan to work for a about future laws that may replace those now client whose death occurs in 2010 or later in on the books. Early in 2010, ACTEC identified spite of the current uncertainty of the tax laws. many important issues raised by the one-year Other popular techniques include making life- suspension of federal estate and GST taxes. See time gifts to QTIP trusts and postponing the Exhibit A hereto for a complete list of the issues QTIP election until there is more clarity, mak- summarized by the Washington Affairs Com- ing lifetime gifts at lower gift tax rates in 2010, mittee of ACTEC for congressional staff mem- using QTIP trust marital deduction provisions bers on Feb. 22, 2010.12 Of particular importance in testamentary documents so that elections are problems with the gST tax (assuming it is can be made after death if an estate or gift tax reinstated) because events occurring in 2010 that continues and an election is needed to qualify are not taxable can have a dramatically adverse for the marital deduction, disclaimer arrange-
2192 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 ments in testamentary documents, and trust 5) Carryover basis will expire and stepped- protectors with powers to amend. In addition, up basis will apply again as before sophisticated lifetime transfers are very popu- 2010. lar, such as those to charitable foundations and Although law to this effect has been enacted to younger generation beneficiaries, including by Congress, it is anyone’s guess whether such transfers by way of GRATs, CLATs, CRUTs and law will remain in effect. sales to defective grantor trusts, when these seem appropriate for the client. Past midyear THE BIG QUESTION: WHAT WILL HAPPEN TO THE FEDERAL ESTATE 2010, we continue to use valuation discounts for AND GST TAXES? minority interests and lack of marketability. What we don’t know is how long the federal To aid the interpretation of documents pre- estate, GST and gift tax regimes scheduled to pared before 2010 by decedents whose death become effective in 2011will remain in place or occurs in 2010, several states (but not Okla- whether such taxes will be applicable at all in homa) have adopted special statutes that estab- 2010 and thereafter. Another very serious ques- lish presumptions for interpretation.15 tion is whether Congress will “fix” the issues 19 NO OKLAHOMA STATE DEATH TAX created by EGTRRA. Oklahoma decedents who die in 2010 (and The Obama Administration Proposals later) are spared tax and complications because President Obama’s 2010 budget assumes the Oklahoma Estate Tax was repealed effec- that a federal estate tax will be in effect tive Jan. 1, 2010.16 However, other state death similar to that which existed in 2009. In taxes may apply depending on the situs of the addition, the Obama Administration decedent’s property, thereby giving rise to announced in the Greenbook for 2009 three questions about computation of the estate tax proposals that would affect federal estate in such other jurisdictions when no QTIP elec- and gift taxation. These appear in H.R. 436 tion for federal purposes is allowed due to the as proposed by Rep. Pomeroy in 2009 and absence of a federal estate tax.17 in S. 3533 as proposed by Sen. Bernie Sand- ers in 2010 and may be expected in regula- LAW TO BECOME APPLICABLE IN 2011 tions under Code Section 2704(b) and other If EGTRRA “sunsets” as now written, in proposed legislation. The proposals are stated as follows in the 2009 Greenbook:20 2011, the following taxes will be in effect:18 1) Require Consistency in Value forT rans- 1) A federal estate tax will apply to dece- fer and Income Tax Purposes. “This dents’ estates subject to a $1 million uni- proposal would require both consistency fied credit and a top tax rate of 55 percent and a reporting requirement. The basis (60 percent for transactions between $10 of property received by reason of death million and $17,184,000); under section 1014 would have to equal 2) Generation-skipping transfers made the value of that property for estate tax during lifetime or by a decedent at death purposes. The basis of property received will be taxed at a rate of 55 percent (60 by gift during the life of the donor would percent for transfers between $10 million have to equal the donor’s basis deter- mined under section 1015. This proposal and $17,184,000) with an exemption of would require that the basis of the prop- $1 million adjusted for inflation; erty in the hands of the recipient be no 3) The federal gift tax will apply to lifetime greater than the value of that property as transfers as it does in 2010 but with a top determined for estate or gift tax purposes tax rate of 55 percent (60 percent for (subject to subsequent adjustments). A transfers between $10 million and reporting requirement would be imposed $17,184,000) and the $1 million lifetime on the executor of the decedent’s estate exemption and the $13,000 per donee and on the donor of a lifetime gift to pro- exclusion will continue to apply; vide the necessary information to both the recipient and the IRS. A grant of reg- 4) The estate and gift tax systems will be ulatory authority would be included to unified as they were in 2001; and provide details about the implementa-
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2193 permit taxpayers to draft the governing documents of a family-controlled entity The basis of property so as to avoid the application of section 2704 if certain standards are met. This received by reason of death under proposal would make conforming clari- fications with regard to the interaction of section 1014 would have to equal this proposal with the transfer tax mari- tal and charitable deductions. This pro- the value of that property for posal would apply to transfers after the date of enactment of property subject to estate tax purposes. restrictions created after Oct. 8, 1990 (the effective date of section 2704).”21 tion and administration of these require- 3) Require Minimum Term for Grantor ments, including rules for situations in Retained Annuity Trusts (GRATs). which no estate tax return is required to “This proposal would require, in effect, be filed or gifts are excluded from gift some downside risk in the use of this tax under section 2503, for situations in technique by imposing the requirement which the surviving joint tenant or other that a GRAT have a minimum term of 10 recipient may have better information years. Although a minimum term would than the executor, and for the timing of not prevent “zeroing-out” the gift tax the required reporting in the event of value of the remainder interest, it would adjustments to the reported value subse- increase the risk of the grantor’s death quent to the filing of an estate or gift tax during the GRAT term and the resulting return. The proposal would be effective loss of any anticipated transfer tax ben- as of the date of enactment.” efit. This proposal would apply to trusts created after the date of enactment.” 2) Modify Rules for Valuation Discounts. “This proposal would create an addi- Proposed Legislation Regarding the Estate Tax tional category of restrictions (disregard- In January 2009, Sen. Pomeroy started the ed restrictions) that would be ignored in process of legislation that would “fix” the valuing an interest in a family-controlled estate tax by introducing H.R. 436, the “Cer- entity transferred to a member of the tain Estate Tax Relief Act of 2009.” H.R. 436 family if, after the transfer, the restriction would continue the federal estate and GST will lapse or may be removed by the taxes in 2010 as they were at the end of 2009 transferor and/or the transfer’s family. and would repeal the carryover basis rules. Specifically, the transferred interest would Subsequently, many estate, gift and GST tax be valued by substituting for the disre- bills have been introduced in Congress and garded restrictions certain assumptions it is likely that many more bills affecting the to be specified in regulations. Disregard- federal estate, gift or GST taxes will be intro- ed restrictions would include limitations duced for consideration in 2010. Bills and on a holder’s right to liquidate that hold- resolutions in the U.S. Congress can be er’s interest that are more restrictive than found on the Internet at www.govtrack.us a standard identified in regulations. A Following are the principal bills proposed disregarded restriction also would include as of the date of preparation of this article any limitation on a transferee’s ability to that would affect estate planning. be admitted as a full partner or holder of an equity interest in the entity. For pur- A. H.R. 4154. “Permanent Estate Tax Relief poses of determining whether a restric- for Families, Farmers and Small Busi- tion may be removed by member(s) of nesses Act of 2009.” This bill was passed the family after the transfer, certain inter- by the House of Representatives on Dec. ests (to be identified in regulations) held 31, 2009 and sent to the Senate on Jan. by charities or others who are not family 20, 2010. H.R. 4154 would: members of the transferor would be 1) Repeal carryover basis (by repealing deemed to be held by the family. Regula- Subtitles A and E of title V of tory authority would be granted, includ- EGTRRA); ing the ability to create safe harbors to
2194 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 2) Retain the estate tax (by repealing the 1) Grantor Retained Annuity Trusts: S. Sunset provision in Section 901 of 3533 would require GRATs to (a) have EGTRRA); at least a 10-year term, (b) prevent annuity payment amounts from 3) Establish a $3.5 million applicable decreasing during the first 10 years exclusion amount (by amending sec- and (c) include remainder interests tion 2010(c) of the Code); and with a value greater than zero deter- 4) Establish a 45 percent maximum mined at the time of transfer. estate tax rate (by amending section 2) Basis Information: S. 3533 would 2001(c) of the Code). enact new Code section 6035 that H.R. 4154 also would establish the “Stat- would require (a) the executor of each utory Pay-As-You-Go Act of 2009.” estate to furnish each person acquir- However, on Feb. 12, 2010, President ing property from the decedent a Obama signed H.J. Res. 45 which in- statement of the value of the property, creased the federal debt ceiling to $14.3 and (b) the person who gifts property trillion and contains Pay-As-You-Go rules. and is required to file a gift tax return Accordingly, the Pay-As-You-Go issue has to furnish the donee a statement of been separated from proposed estate tax the adjusted basis of the property, the legislation. fair market value of the gift, the amount of gain or loss recognized by B. S. 3533. “Responsible Estate Tax Act.” the grantor on a transfer to a trust and This bill was introduced by Sen. Bernie the amount of gift tax paid by the Sanders (I-VT) on June 24, 2010. If adopt- transferor. In addition, (c) Section ed, it would: 1014 would be amended to require 1) Repeal carryover basis (by repealing the basis to be used by the acquirer of subtitles A and E of title V of EGTTRA; the property consistently with the information reported to such person 2) Reinstate estate and generation-skip- under section 6035. ping taxes (by repealing the Sunset provisions in section 901(a) of 3) Valuation Rules for Certain Trans- EGTTRA) fers of “Non-business Assets”: S. 3533 would not allow valuation dis- 3) Establish a $3.5 million unified credit counts with respect to “non-business against the estate tax; assets,” which are defined generally 4) Establish the following estate tax as any asset not used in the active rates on estates over $3.5 million: conduct of a trade or business. Pas- sive assets are defined to include sev- 45 percent on assets over $3.5 million eral classes of property, including up to $10 million; cash, debt instruments, commodities, 50 percent on assets over $10 million collectibles and assets which produce up to $50 million; and royalty income (other than a patent, 55 percent on assets over $50 million. trademark or copyright). Exceptions 5) Impose a 10 percent surtax on assets are made for certain passive assets in excess of $500 million; including real property used in the active conduct of a real property trade 6) Retroactively reinstate the estate tax or business in which the transferor back to Jan. 1, 2010; materially participates. 7) Disallow minority interest discounts Other Notable Legislative Proposals affecting for “non-business” assets; and Estate, Gift or GST Taxes 8) Provide additional relief for farmers, C. Tax Extenders: H.R. 4213, the “Ameri- allowing them to reduce the value of can Jobs and Closing Tax Loopholes Act their farmland by $3 million. of 2010,” included several tax extenders In addition, S. 3533 contains the follow- including one for IRA charitable roll- ing provisions to enact the Obama overs, but it failed to pass the Senate. Administration proposals:
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2195 D. GRAT Limitations. Several bills include well, it is absolutely essential that we remain provisions similar to those in S. 3533 to alert. Stay tuned for interesting developments amend Code §2702’s definition of “quali- the rest of this year. fied interests” and provide that a retained annuity interest will only be a qualified 1. EGTRRA means Pub. L. No. 107-16, 107th Cng. 1st Session (June 7, 2001), known as the “Economic Growth and Tax Relief Reconcilia- interest if the term of the interest is “not tion Act of 2001.” less than 10 years,” the annuity pay- 2. Some of the country’s leading lawyers and commentators wrote a comprehensive article in February 2010 entitled, “The Impossible Has ments don’t decrease from one year to Happened: No Federal Estate Tax, No GST Tax, and Carryover Basis for the next, and the remainder interest in 2010,” Jonathan G. Blattmachr, Mitchell M. Ganns, Howard M. Zaritsky and Diana S.C. Zeydel in Journal of Taxation, February 2010, at 68ff (here- the GRAT is greater than zero. inafter cited as Blattmachr, et al 2010 JT article”). 3. EGTRRA in Section 501(a) added §2210 to the Internal Revenue E. Possible Vehicle for an Estate Tax Bill: Code of 1986, as amended (the Code) that provides “(a) in general…this H.R. 5486, the “Small Business Jobs Tax chapter (Chapter 11) shall not apply to estates of decedents dying after Dec. 31, 2009.” Relief Act of 2010” was passed by the 4. Code Section 2664, added by EGTRRA, states that the gST tax House on June 15, 2010. The bill was rules do not apply to “generation-skipping transfers made after Dec. 31, 2009.” combined with H.R. 5297, the “Small 5. Under EGTRRA, Code Sections 1014(f) and 1022(a) give a person Business Lending Fund Act of 2010” who receives property from a decedent who dies during 2010 an adjust- and has been approved by the House. ed basis equal to the lessor of the fair market value of such property on the decedent’s death or the adjusted basis of the property in the hands of The combined bill has been sent to the the decedent, subject to two basis adjustments: a $1.3 million aggregate Senate as H.R. 5297, the “Small Busi- basis increase and the $3 million “spousal property basis increase.” 6. The 35 percent gift tax top rate was imposed by EGTRRA. ness and Infrastructure Jobs Tax Act of 7. Fifty-five percent was the top gift estate and GST tax rate before 2010.” It may become a vehicle for EGTRRA was enacted. The sunset provisions of EGTRRA Section 901 have the effect of restoring the tax rates in effect before EGTRRA was estate tax legislation. enacted in 2001. 8. Section 901 of EGTRRA is referred to as the “sunset provisions of F. Discount Limitations. Minority interest EGTRRA.” and lack of marketability discounts are 9. Some interesting cases have been noted in the press. The estate of Donald Duncan, a Texas billionaire who died in 2010 with an estate targeted in the provisions of H.R. 436 and estimated to be $9 billion might escape estate taxes altogether S. 3533 and may indicate what is to come. because of the “fortuitous” timing of his death, although (absent a retroactive tax) assets in his estate will be subject to the modified car- G. In July, Sens. Kyl (R-AZ) and Lincoln ryover basis which could result in large income taxes when his prop- erty is sold by his heirs. george Steinbrenner’s death in July 2010 (D-AR) indicated they might introduce raised some similar observations. a bill in the Senate to establish an estate 10. “No one can predict accurately what Congress will do in 2010 regarding the estate and GST taxes…Anyone who claims to know what tax with a $3.5 million exemption that Congress will do should be considered a dangerously unreliable source will increase over time to $5 million, of information.” Howard M. Zaritsky, Practical Estate Planning in 2010, and a top tax rate of 45 percent. Com- Thomson Reuters/WG&L, published in March 2010 (hereinafter cited as Zaritsky, Practical Estate Planning). mentators did not expect it to succeed. 11. ACTEC prepared a list of specific proposals to correct questions left open and confusing in the current law. See “Addressing Technical PREDICTION Issues Relating to the Estate and GST Taxes,” June 18, 2010, at the ACTEC public website, ACTEC.org under “Legislative and Regulatory Analy- In the fourth quarter of 2010, it is dangerous sis.” Also, dsee M. Howar Zaritsky, “Practice Alert: GST Planning in 2010 - Another Fine Mess They’ve Gotten Us Into.” RIA Planners Alert, July, to make predictions, but the political situation 2010, pp 2-3. in Washington, d.C. leads to a logical one: 12. “Issues Raised by the One-Year Suspension of the Estate and GST Taxes,” Feb. 22, 2010. Exhibit A hereto is a reproduction of the ACTEC After the 2010 elections in November, the summary of issues which can be found on the ACTEC public website at “lame-duck” Congress may have the fortitude ACTEC.org. to continue the major provisions that were in 13. Zaritsky notes that direct-skip transfers in trust in 2010 could lose the benefit of the move-down rule of Code Section 2653(a) that ordinar- the 2009 law by enacting something like the ily would protect subsequent transfers from gST tax. The risk is that Sanders bill (S. 3533) for a temporary period of since Code Section 2664 states that the gST tax rules do not apply to generation-skipping transfers after 2009 may eliminate the move-down two or three years. That would enable Con- rule. Even though the EGTRRA “sunset” rule states that tax laws apply gress to avoid “raising taxes” by the return of to transfers after 2010 as if EGTRRA (including Code Section 2664) “had not been enacted,” one cannot be certain how IRS and the courts will pre-EGTRRA law when EGTRRA sunsets and interpret the “never been enacted” language. See Zaritsky, op cit at p.2. to delay final decisions about a highly emo- Similar risks of interpretation of the sunset rules apply to annual exclu- tional topic until after the presidential election sion gifts in trust and discretionary distributions to possible skip persons from testamentary generation-skipping trusts created by estates of dece- in 2012. dents who die in 2010. 14. See Blattmachr, et al 2010 JT article, and Zaritsky, Practical Estate While 2010 has been challenging, the uncer- Planning. 15. An attempt was made to amend Title 84 of the Oklahoma statutes tainty and multiple legislative possibilities by adding new Section 187 that would have provided a will, trust or have caused us to focus on facets of federal other instrument of a decedent who died in 2010 that contained a for- estate, GST and gift tax law we have not close- mula referring to various provisions of the federal estate or GST tax laws (such as unified credit or estate tax exemption) or that measured a share ly reviewed before. In order to serve our clients of a trust or a gift based on the amount that can pass free of federal estate
2196 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 or GST taxes, “shall be deemed to refer to the federal estate tax and gen- eration-skipping transfer tax laws as they applied with respect to estates About The Author of decedents dying on dec. 31, 2009.” However, this law was not passed. 16. Repealed by Laws 2006, 2nd Ex. Sess., C. 42 §6, eff. Jan. 1, 2010. Henry G. Will practices law in 17. See Zaritsky, Practical Estate Planning, at ¶2.06[3][b]. Tulsa as a shareholder and direc- 18. See Blattmachr, et al 2010 JT article, at pp 68-69. tor of Conner & Winters LLP 19. See ACTEC materials published June 18, 2010, cited at footnote 11. 20. The Greenbook can be found at http://www.ustreas.gov/offices/ specializing in estate planning tax-policy/library/grnbk09.pdf. and exempt organizations. He is 21. Note that this proposal could be enacted by Treasury Regulations for Code Section 2704 instead of through the legislative process. a graduate of Yale University (magna cum laude, 1962) and Yale Law School (1965) and is a Fellow of ACTEC.
NOTICE: JUDICIAL ELECTION COMPLAINTS
Please take notice that the Professional Responsibility Panel on Judicial Elections is available to receive complaints concerning candidates running for judicial office in the upcoming elections. In the event that you believe that a candidate has violated the Judicial Canons or other rules applying to Judicial Elections, please forward your written, verified complaint with any supporting documentation to the following address:
Professional Responsibility Panel on Judicial Elections c/o William J. Baker P.O. Box 668 Stillwater, OK 74076
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2197 2198 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Probate & ESTATE PLANNING Logging Out: Digital Estate Planning By Ryan Kiesel Lucy Smith was an avid blogger and social networker. She regularly upload- ed photographs and movies of her children to share with friends and family. She also kept a running commentary of the hilarity of her life on her per- sonal blog connected with her Gmail account. Unexpectedly, Lucy died. Her e-mail, Facebook, Twitter and other social networking accounts remained under electronic lock and key because her family was unable to access the sites to either delete or retrieve information. Her estate planning documents failed to specifically address how to access and dispose of this section of her estate – electronic property. hen most people create an account on a social network- ing site or set up a web-based e-mail service, they prob- Wably don’t ask themselves, “What will happen to this when I die?” But they should, and the legal community should play a significant role in encouraging their clients to prepare for the possibility of digital immortality.
In recent years, the popularity of social net- House Bill 2800.3 HB 2800, which will take effect working sites has exploded. Facebook alone on Nov. 1, 2010, automatically vests the per- boasts over 500 million active users worldwide.1 sonal representative4 of an Oklahoma estate Facebook reports that each month “more than with the power to “to take control of, conduct, 30 billion photographs, links to Web sites and continue, or terminate any accounts of a deceased news articles are shared through the site, and its person on any social networking website, any members spend roughly 700 billion minutes microblogging or short message service website there.”2 The number of individuals using e-mail or any e-mail service websites.”5 is even larger. The users of these sites hail from Many of the online services covered under HB across the globe and, despite their diversity, 2800 have policies regarding the accounts of they all have one thing in common — each of deceased users. In some instances, they require them will die, and the digital estates they leave a legal order demonstrating that a personal rep- behind raise several legal and ethical issues. resentative seeking to access the deceased’s During the 52nd Regular Session of the Okla- account has the legal authority to do so. The homa Legislature, I sought to address at least intent of HB 2800 is to make that power inherent one of these issues with the introduction of with the administration of the estate. Rather
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2199 than having to seek a special order from a court and your client came to possess the chest to gain access to an account of the deceased, through a valid probate process. Inside the chest under HB 2800 it should be sufficient for per- are letters, home movies, photo albums and sonal representatives of Oklahoma estates to other personal affects. Some items promise to be demonstrate they are acting in their capacity as of special significance, and other items will raise personal representative.6 the question of why it was thrown in the box to begin with. But there is one problem. The box is ASSUME YOUR CLIENT IS ONLINE locked with a padlock and no one has the key. In For a growing number of Oklahomans, the fact, some speculate the key may have been Internet is increasingly an indispensable part of accidentally buried with the deceased. Your cli- their personal and professional lives. They live ent wants to know what to do. online, but when they die, those online accounts There is not significant legal debate that your (or most of them7) persist. Conducting our lives client, having lawfully come into possession of online has not made it any easier to think about this chest, has the right to access it, making this or plan for death. more a matter for a locksmith or a robust set of The failure to plan for the final disposition of bolt cutters from the local hardware shop than a digital estates is not exclusive to intestacy. In the legal issue. There is no need to call on a court for course of devising and conveying real and per- permission to exhume the body to search the sonal property, even the most diligent estate coffin for the key, and it is doubtful any court planners can neglect to make provisions for would entertain such a macabre request. your administering a person’s digital estate. In the not client is free to open the chest in any manner he too distant past, such omissions were excusable. sees fit. After all, it wasn’t that long ago that a will men- If a hypothetical about a locked chest sounds tioning an e-mail address or a Twitter handle antiquated, it is because it should. Shoe boxes would seem absurd. That is rapidly changing. with important documents, family albums, Today, every estate planning interview with financial records and so on are being replaced your clients should bring up the subject of their online presence, discuss their options, and advise by websites and online applications. Each time your clients to develop an online estate plan. you create an account that requires registered users to sign in, you are fashioning a lock that is ‘CAN I BREAK THIS LOCK?’ virtually impossible to crack. This has unfortu- Even if a social networking or e-mail service nately and inevitably led families and estates to by their terms of service forgo any ownership seek legal remedies to open online accounts. interest in the content users distribute across the HB 2800 AND ONLINE platform, they still function as gatekeepers, PROVIDER POLICIES requiring a user to enter login credentials before One of the earlier cases dealing with accessing they access their online property.8 So for our a deceased’s account involved Justin Ellsworth, purpose of applying HB 2800, let us assume that a Marine stationed in Iraq who was killed by a when you use Google’s web-based e-mail client roadside bomb in 2004.9 When his father Gmail to e-mail a picture to your friends and attempted to access Justin’s yahoo e-mail family, you do not lose your ownership interest account, he was turned away. Only after a Cali- in that photograph. The same is true when you fornia probate court ordered Yahoo to turn over post a picture or a video to Facebook. The ques- the contents of the account was Justin’s father tion is not whether your client has a property able to access his e-mail.10 At that time yahoo interest; it is a question of access. said this did not mark a change in its privacy It is access that HB 2800 seeks to address. So policy, rather compliance with a lawful order.11 while you may own that picture you posted on In the wake of the April 2007 shootings at Vir- Facebook, you can only access it with a particu- ginia Tech, Facebook instituted a memorial pol- lar username and password. It is at this intersec- icy for the accounts of deceased users.12 Under tion of privacy, security and property rights that Facebook’s policy of memorializing an account estates can find themselves locked out. of a user who has passed away, Facebook Imagine you have a client who was recently “removes certain sensitive information (e.g., bequeathed a locked chest. Assume all parties status updates and contact information) and stipulate that the deceased intended for your sets privacy so that only confirmed friends can client to have this chest when he passed away, see the profile or locate it in search. The Wall
2200 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 remains so that friends and family can leave ing the account, including the option to perma- posts in remembrance. Memorializing an nently erase their online identity upon their account also prevents all login access to it.”13 demise. Until that time, however, clients should Since Facebook instituted this policy, the friends be advised that the most effective way to man- and family of deceased users have found solace age their accounts after they die is to make these in posting messages of remembrance online.14 decisions while they are alive. The practice of remembering the dead online is A BRIEF NOTE ABOUT SECURITY AND the focus of an emerging Internet business ESTATE PLANNING model of websites devoted entirely to online memorials.15 Tech experts suggest that users take an active role in securing their online accounts. Farhad However, permanently removing an account Manjoo, technology columnist at Slate.com and or accessing the deceased user’s content can on-air contributor to NPR, suggested that “[y]ou require considerably more effort. Facebook should change your passwords often...[y]ou states that deleting an account requires action should not use the same password for several from an immediate family member, and obtain- different sites.”18 Sounds good in theory, but ing access to content on the account, i.e. photo how many people are that diligent? Manjoo albums, messages, etc. is not granted unless 16 admits “you know, changing your passwords required by law. It is the intent of HB 2800 to often, choosing passwords that are easy to grant estates this legal authority to access those remember, that’s very annoying, and very few portions of an account, granting estates more people actually follow these simple rules.”19 options than choosing between a memorial pro- file or deleting the account without first having Changing passwords often and keeping mul- the opportunity to save certain content. tiple passwords seems to fly in the face of leav- ing behind the necessary information an estate It is important to note that would need to access an the terms of service vary from account without resorting to website to website. Some the provisions of HB 2800 or make it easier to obtain access other legal action. There are and others make it nearly, if The practice of online services that allow not entirely, impossible. HB individuals to subscribe to a 2800 may give estates an eas- remembering the service that keeps all of the ier avenue, but it by no means passwords in one place and ensures that websites will not dead online is the focus only releases them to autho- resist attempts to access the rized individuals after the accounts of their users who of an emerging Internet subscriber has died. But add- have passed away. Privacy is ing an additional step in of the utmost concern for business model of websites online security, when only a online users and providers, fraction of people follow cur- and it will continue to pre- devoted entirely to online rent best practices, seems an dominate efforts to reconcile unlikely solution for the our life online with literal memorials. majority of Internet users. death. For now, the best solution is HB 2800 is also entirely to prompt your clients to incapable of divining the think about their online activities as an impor- intent of the deceased. Without some guidance, tant aspect of their estate planning. given the estates are left to wonder whether individuals variety of online activity, differences in terms of would prefer their Facebook profile to be memo- service agreements, and the wishes of your cli- rialized or deleted. What if the deceased want ents, online estate planning, like traditional their e-mail and social networking legacy to be estate planning, will require unique solutions permanently deleted, and kept private from tailored to your client. With proper planning, their families and friends? HB 2800 does not none of your clients or their estates will have to answer this 21st Century equivalent of a testator use the provisions of HB 2800. requesting his papers to be burned upon death.17 Perhaps online services should offer their users 1. Jenna Worthham, “Facebook Tops 500 Millions Users,” New York a Kafka clause that allows them to set their pref- Times, July 21, 2010, www.nytimes.com/2010/07/22/technology/ erence for access at the time they are establish- 22facebook.html?_r=1&partner=rss&emc=rss.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2201 2. Id. 16. “How do I report a deceased user or an account that needs to 3. 2010 O.S.L. HB 2800 c. 181, §1. be memorialized and deactivated or deleted?” Facebook Help Center 4. 58 Okla. St. §11. Oklahoma probate law uses the term “personal (accessed July 26, 2010 at www.facebook.com/help/?page=842#!/ representative” as a substitute for the more specific terms of executors help/?faq=13941). and administrators of an estate. 17. See, M.A. Orthofer, “Weighing Words Over Last Wishes,” Poets 5. 2010 O.S.L. HB 2800 c. 181, §1 & Writers, November/December 2003, www.pw.org/content/weigh- 6. e.g. Letters issued to executor or Letters of Administration issued ing_words_over_last_wishes. pursuant to 58 Okla. St. §101 and §121. 18. “Farhad Manjoo Makes your Passwords Secure.” Interview on 7. Some online services have dormancy clauses in their terms of NPR’s Talk of the Nation broadcast on Oct. 8, 2009. Transcript accessed service that reserve the service providers right to delete accounts that online at www.npr.org/templates/story/story.php?storyId=113619478. register no activity for a set period of time. 19. Id. 8. Of course, this is not always the case and intellectual property questions abound online. HB 2800 and this article do not pretend to About The Author resolve those issues. 9. Stefanie Olsen, “Yahoo releases e-mail of deceased Marine,” CNET News, April 21, 2005 http://news.cnet.com/Yahoo-releases-e- Ryan Kiesel earned degrees in mail-of-deceased-Marine/2100-1038_3-5680025.html. political science and law from 10. Id. 11. Id. the University of Oklahoma. He 12. Hailey Branson, “Death need not be the end when online,” has served District 28 in the Daily Oklahoman, June 18, 2010 http://newsok.com/article/3469323). 13. “What does memorializing an account mean?” Facebook Help Oklahoma House of Representa- Center (accessed July 26, 2010 at www.facebook.com/help/?faq=15666). tives since 2004 and is not seek- 14. Hailey Branson, “Death need not be the end when online,” Daily Oklahoman, June 18, 2010 http://newsok.com/article/3469323). ing re-election. He has also 15. Yuki Noguchi, “Online Memorials Bring Strangers and Friends taught as an adjunct professor at Together in Community of Grief,” Washington Post, May 29, 2006 www. the OU College of Law. Ryan washingtonpost.com/wp-dyn/content/article/2006/05/28/ AR2006052800877_pf.html. lives in Seminole.
THE HISTORICAL SOCIETY OF THE TENTH JUDICIAL CIRCUIT IS PLEASED TO ANNOUNCE THAT VICE-CHIEF JUSTICE STEVEN W. TAYLOR OF THE SUPREME COURT OF OKLAHOMA WILL SPEAK ON THE “OKLAHOMA CITY BOMBING TRIAL IN STATE COURT” THURSDAY, OCTOBER 28, 2010 AT 6 P.M.
CENTER FOR EDUCATION & OUTREACH at the OKLAHOMA CITY NATIONAL MEMORIAL MUSEUM 620 N. HARVEY AVENUE • OKLAHOMA CITY, OK 73102
RSVP to Steve Balman at (918) 588-1313
* Attendees will enter in the north entrance off 6th Street. There is meter parking surrounding the Memorial (payment not necessary at meters after 5 p.m.) and several parking lots surrounding the Memorial Grounds.
2202 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 OBA Exclusive
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2203
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2205 2206 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Probate & ESTATE PLANNING Simple Estate Planning for your Client’s Children By Ryan J. Duffy
wo things are certain in life — death and taxes. While most of us put forth a significant amount of effort strategizing to Tminimize Uncle Sam’s impact on our wealth, many clients forget that they must also provide for their minor children in the event of their untimely death. This article will focus on estate planning to protect a client’s children.
One of the most commonly overlooked items graphically, or even parents of close friends of that should be handled in a proper estate plan is the children, with whom the child’s parents the care for a minor child in the event both par- have cultivated a solid relationship. Choosing ents die at the same time. This is certainly not a such a guardian ensures the child can retain a pleasant thought for those involved in planning core social network, maintain friendships and their estates, but proper planning for such a stay in the same school. crisis can avoid added stress in an already trau- matic situation. Parents often have a very diffi- So, how do you designate a guardian for a cult time deciding who should be the proper minor child? The simplest way is to do so in the guardian for their minor children, but such dis- parents’ Last Will and Testament. While this is cussion, and even argument, is assuredly pref- not an iron-clad method to dictate who will be erable to the alternative: two families fighting at the guardian, it is the most effective method the courthouse over children who have recently available to ensure your preferences are respect- lost their parents. ed. Ultimately the court will do what it deems to be in the best interest of the minor child. One factor guiding the decision-making pro- However, a parent’s wishes expressed during cess is the child’s age. The needs of children at a his or her lifetime via a properly drafted and very young age consist mainly of nurturing, so executed Last Will and Testament will be influ- often the proper designated caretaker is a grand- ential to a court of law. parent, or close aunt or uncle, or other family member. In other words, a person that has been While agreeing on a guardian for a child is the around the child significant time, has an emo- first necessary decision, preparing for a child’s tional bond and will be the most parent-like is financial future is another vital component. often the best choice at a young age. As children First, there is a situation of a married couple grow older, their needs greatly differ. For a child with only one parent dying. In today’s society, to lose his or her parents one day, and then be remarriage of the surviving spouse is over- forced to move far away and lose his or her whelmingly common. Contemplating a surviv- friends the next, is certainly a daunting pros- ing spouse with another mate following your pect. At such a time in a child’s life, it may make client’s death is not a pleasant thought for the more sense to seek the nearest relative geo- hypothetical decedent, but it is a reality in many
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2207 cases. Another unpleasant children’s share with the remain- thought to be sure, but one which der to the surviving spouse. Of deserves contemplation, is a sur- course more sophisticated and viving spouse and his or her new Ultimately the wealthier clients may be capable mate burning through a surviv- of funding allocations from their ing child’s college fund on the court will do what it own assets. luxuries of their newfound mari- If both parents predecease a tal bliss. The best solution to this deems to be in the minor child, the focus is to supply potential problem is to dedicate sufficient funding for the guard- an amount of money that can best interest of the ian to provide for the child, and to only be expended for the needs protect that money from any of surviving children, such as minor child. undesirable actions of the guard- general care, college, starting a ian. As such, it is often a prudent career, buying a house or any decision to designate a person other number of needs. Doing so other than the guardian, often from the other not only protects a set amount of money for the side of the family, as the Trustee of the children’s child, but also takes some stress off of the sur- money. This not only serves as an invaluable viving spouse who may feel significant guilt in check and balance on expenditures of the money, spending money on anything but the children but also ensures that both sides of the family following the death of a spouse. remain a part of the child’s life, something that Setting up the fund for the child may be done is generally important to couples. via a Trust, which is often not practical for If your clients have children that are minors, young to middle-age individuals, or through a or at any age at which financial responsibility Last Will and Testament with a vehicle called a has not fully developed, then the client’s estate Testamentary Trust, which is formed on the planning should adequately address these vital death of said individual. An amount stays in issues for the children, from both a personal Trust solely for the benefit of the children until care and financial perspective. The peace of a certain age is reached, usually 25 and up mind for a client associated with knowing that (depending on various factors), at which point their affairs are handled properly is invaluable. all or a portion is released to the child outright. A Trustee is designated to manage and distrib- ute the money pursuant to your direction as set forth in a properly drafted Trust established About The Author during your lifetime or as a component of your Last Will and Testament. Ryan J. Duffy is an associate with Andrews Davis PC of Okla- Naturally, the next question is how to fund homa City. His practice focuses this gift to the child? A likely concern lies in on estate planning, tax, busi- ensuring the surviving spouse has sufficient ness, securities and real estate. funds for financial security after the children are He is active on various OBA given their share. While many methods are used committees including serving as to reach an acceptable solution based upon a chair on the Strategic Plan- available assets, amount to be set aside, etc., ning Committee, and is a mem- commonly the amount to the children is funded, ber of the Ruth Bader Ginsburg at least in part, by life insurance. A couple may Inn of Court and the Oklahoma City Men’s Dinner opt to set up a policy they will use solely to fund Club. He received his B.S. in business administra- the children’s share, or simply have one policy, tion from OSU and his J.D. from OU. of which the first X dollars of proceeds go to the
2208 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2209 2210 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Probate & ESTATE PLANNING
Uniform International Wills Act By Patrick Anderson
n the 2010 Legislature, Oklahoma enacted the Uniform Inter- national Wills Act (SB 889). The purpose behind the act is to Iestablish a universal will form that can be accepted in other countries. My first reaction when I was asked to carry this bill was probably much like yours — do we really need this? Since the time that I asked that question I have become more and more aware that there are many Oklahomans who own assets in for- eign countries. The enactment of this act will certainly be a ben- efit for those individuals and most likely for individuals from other countries that own assets in Oklahoma.
The act was promoted by the Uniform Law erly? This act is intended to help reduce the Commission. Besides Oklahoma, there are 17 problems associated with proving that such a other states and jurisdictions in the U.S. that will was executed properly by establishing have enacted the Uniform International Wills internationally accepted standards. Act. Those states and jurisdictions are as fol- The basic requirements for a will to be valid lows: Alaska, California, Colorado, Connecti- under the Uniform International Wills Act are cut, Delaware, district of Columbia, Hawaii, as follows: Illinois, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Dakota, Ore- 1) The will must be written. It may be writ- gon, Pennsylvania and Virginia. It has also ten in any language. It may be handwritten or been adopted in several other countries, includ- written by other means. It does not have to be ing: Belgium, Bosnia, Ecuador, Herzegovina, written by the testator. Canada, Cyprus, France, Italy, Niger, Portugal and Slovenia. 2) The will must be witnessed by two indi- viduals and an “authorized person.” The testa- Oklahoma already recognizes the validity of tor must declare in the presence of two witnesses wills that are executed in accordance with the and the authorized person that the document is laws of the jurisdiction in which the will was the will of the testator. The testator must sign the executed. For instance, Oklahoma courts would document in the presence of the witnesses and recognize the validity of a will executed in authorized person or acknowledge his signature France provided that it was executed properly if the testator has already signed the documents. — but how do you convince a judge in Okla- An “authorized person” as defined in the act is homa that the document was executed prop- an attorney admitted and licensed to practice
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2211 orized person and shall declare that the requirements for the execution of a uniform This act is intended to help international will have been met. The act pro- reduce the problems associated with vides the certificate form that is to be used. 7) The testator must be asked if he wishes to proving that such a will was executed make a declaration concerning where the will is to be kept. If the testator chooses to state properly by establishing internationally where the will is to be kept then the location is to be stated on the certificate. accepted standards. 8) An international will may be revoked. An international will is subject to the ordinary rules of revocation of wills. law in Oklahoma. The act also authorizes members of the diplomatic and consular ser- As you can see, the requirements for creating vice who have been empowered to supervise a valid international will are relatively simple. the execution of international wills to serve as The enactment of this legislation won’t affect authorized persons. the estate planning that you do for 99 percent of your clients, but hopefully it will be an 3) The testator must sign each page of the incredibly useful estate planning tool for those will. The will may be signed by another person clients who can benefit from it. on behalf of the testator if the testator is unable to execute the document. If another party signs About The Author the will on behalf of the testator then the rea- son for the testator not signing the document is Sen. Patrick Anderson has required to be stated. served in the Oklahoma State 4) The witnesses and the authorized person Senate for six years. He currently must attest the will. The witnesses and the serves as the chairman of the authorized person must attest the will by signing Senate Judiciary Committee. He the document in the presence of the testator. is also an attorney employed in the trust department of Central 5) Each page of the will must be numbered. National Bank & Trust Compa- ny of Enid. He was the author of 6) A certificate must be attached to the will. SB 889. The certificate shall be prepared by the auth-
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2212 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Experienced. Balanced. Steady.
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2213 2214 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Probate & ESTATE PLANNING Recent Changes to the Creditor Claim Process in Oklahoma Estates under Okla. Stat. tit. 58 §337 By Cory Hicks
he creditor claim process is an important part of Oklahoma probate procedure.1 Effective Oct. 31, 2008, the Oklahoma TLegislature changed the creditor claim rejection process by amending Okla. Stat. tit. 58 §337. The change basically alters the amount of time a creditor has to file suit on a claim which a per- sonal representative rejects through refusal or neglect. This is the first change to the statute in 20 years. The new language is some- what difficult to interpret but becomes clearer as one looks at the legislative background. The main goal of this article is to give an overview of the change.
OVERVIEW OF THE CREDITOR CLAIM ery (or non-mailing/non-delivery) by an affi- PROCESS davit filed with the district court.4 Generally, the personal representative (“PR” The PR must also give creditors notice by or “PRs”) of an estate must give written notice publication in a newspaper in the county to all “known creditors” and “reasonably ascer- where the probate is filed. This notice must tainable creditors” within two months after the publish twice — one time per week, for two court issues the document that officially consecutive weeks. The first publication must appoints them (i.e. letters). The PR has a respon- take place within 10 days of the date notice to sibility to use “reasonably diligent efforts” to creditors is filed.5 find the creditors of the decedent, including a search of the personal effects of the decedent.2 With limited exceptions, creditors must pres- After a diligent search, the PR must file ent claims to the PR or their attorney as notice to creditors in substantial compliance instructed in the notice within two months of with the statute in the district court where the the filing of the notice, or the claims are forever probate procedure is being conducted. Within barred.6 10 days of filing this notice in the district court, BARRED CLAIMS the PR or their attorney must send a file- stamped copy to all creditors by first-class mail Once the PR gives notice to creditors, there or personal delivery.3 Then the PR or their are several ways a creditor claim can become attorney must document this mailing or deliv- barred:
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2215 1) The most common way is for a creditor to paragraph B of this section, the forty-five- fail to file a claim as set forth in the notice. day time period for limitation of actions as specified in Section 339 of this title shall not 2) If a creditor makes a claim,7 the PR can begin until the personal representative has “directly” reject the claim, in whole or part, mailed notice of rejection to the creditor by and send notice of the rejection within five 8 regular, first-class mail to the creditor’s days to the creditor. The creditor then gener- last-known address. In no event shall such ally has 45 days to bring suit or the claim is 9 limitation extend past the date that a peti- barred. tion for final accounting is filed; and 3) Likewise, even if a PR accepts a claim, the 2) If the treatment of any claim by the per- district court may directly reject the claim, in 10 sonal representative or judge is deemed whole or part. The creditor then generally has equivalent to a rejection, as described in 45 days to bring suit or the claim is barred. paragraph 1 or 2 of subsection C of this sec- 4) If a creditor brings a suit on a rejected tion, the forty-five-day time period for claim, whether as part of the creditor claim limitation of actions specified in Section process or as an independent action, a court 339 of this title shall not begin until the can find all or part of the claim invalid on its personal representative has mailed notice merits. The PR, may “require satisfactory of the deemed rejection to the creditor by vouchers or proofs or other evidence”11 from a regular, first-class mail to the creditor’s creditor. last-known address. In no event shall such limitation extend past the date that a peti- 5) The PR can “indirectly” reject the claim tion for final accounting is filed. through refusal or neglect. “If the personal rep- resentative refuses or neglects to endorse such THE FIRST V. SECOND SENTENCES allowance or rejection for thirty (30) days after The first sentences of F1 and F2 seem clear. the claim has been presented to him, such Standing alone, the first sentences appear to do refusal or neglect is equivalent to a rejection on away with an important aspect of the indirect the thirtieth day after presentment of the claim rejection/pocket veto option of a PR. to the personal representative, regardless of the date on which the claim may have been actu- Under the prior scheme, 30 days after a claim ally rejected in whole or in part.”12 At that time, is filed, if there is no action by the PR, the claim the creditor then generally has 45 days to bring is deemed rejected. After this rejection, a credi- suit or the claim is barred. This option of the tor has 45 days to file suit or the claim is barred. “indirect rejection” by the PR is similar to the This all happens without additional direct option of the “pocket veto” by the president notice to the creditor. Under the first sentences, under the U.S. Constitution.13 the 45 day limit to file suit would not begin running until the PR directly rejected the claim It is this indirect rejection process and the and notified the creditor directly. However, as response timeline for creditors to file suit that one keeps reading, the first sentences are tem- is at the heart of the recent change. pered by the second sentences. TEXT OF NEW CHANGE The second sentences of F1 and F2 are strik- The Oklahoma Legislature brought about ingly different than the first sentences - to the this change by adding a new Section F to the point of being at odds in some respects. The end of the existing OKLA. STAT. tit. 58 §337. second sentences seem to make this adjust- The wording of the new Section F is important, ment: the window for creditor suits, although so it is replicated in full below: enlarged by the first sentences, potentially indefinitely, nonetheless does not stay open F. For estate proceedings commenced after forever. The second sentences set an outward Oct. 31, 2008, the following provisions shall boundary: the time for a creditor to file suit apply: when a PR indirectly rejects their claim “in no event” shall extend beyond “the date that a 1) If the personal representative rejects a petition for final accounting is filed.” claim, in whole or in part, but refuses or neglects to mail a notice of the rejection not In sum, it appears that the sentences read later than five (5) days following the date together measure the time for a creditor to file of partial or total rejection as required in a suit on a claim that a PR indirectly rejects/
2216 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 pocket vetoes, not by the old bright line of 45 days, but instead by the new line of when the PR files a petition for final accounting. The give and take of the THE LEGISLATIVE PATH BEHIND THE political process appears to be SENTENCES the reason for the two-sentence The original proposed bill in the Oklahoma House of Representatives contained only the structure of each section of the first sentences, essentially seeking to do away with the indirect rejection/pocket veto option of change and the tension between PRs without any qualification. The Oklahoma Senate later amended the House bill to add the the first and second sentences. second sentences, limiting the time for creditors to file suits on indirectly rejected claims to the filing of a petition for final accounting. The bill Example 1: In the Smith estate, the PR files then went to conference committee, passed both notice to creditors on March 1 and mails notice legislative bodies, and eventually was signed to the only known creditor on the same day. into law by the governor.14 The give and take of The presentment date is May 1 — two months the political process appears to be the reason for from the filing of the notice. The creditor files a the two-sentence structure of each section of the proper claim under law with the PR on April change and the tension between the first and 15. The PR does not file a petition for final second sentences. accounting and distribution until Oct. 1. INTERPRETING THE SENTENCES A. Under the Old Indirect Rejection Scheme: If the PR did nothing, the claim The best reading of the new change, both would be equivalent to rejection 30 days from the language of the statute and the under- after April 15, or after May 15. The creditor lying legislative process, appears to be to read would then have 45 days to file suit, or the second sentences as modifications to or until June 29, or the claim would be limits on the general rule of the first sentences. barred. There are a few strong textual and procedural reasons for this interpretation. B. Under First Sentences Only (Original Proposed Bill): The first sentences, which First, the second and final sentences contain alone were the original bill, would extend very strong, absolute language: “in no event.” the time for the creditor to file a claim Second, legislatively, the second and final sen- beyond 45 days — indeed indefinitely in this example – because the PR never sent tences were crafted as an amendment to the the creditor a rejection notice. original proposed bill which contained only the first sentences. This amendment was clearly a C. The Effect of the Second Sentences proposal to modify or limit the original pro- (Amendment and Second Sentences in posed bill. If the second sentences did not mod- the Eventual Law): The creditor would ify or limit the first sentences in any way, there have until the PR filed the petition for final would have been no need for an amendment. accounting and distribution on Oct. 1. In this case, it appears the intent underlying Third, the Legislature did not strike OKLA. both the first and second sentences was STAT. tit. 337(C), the very statute that estab- met. The creditor filing time was extended lished the indirect rejection/pocket veto, when because the PR never gave the creditor a adding the new 377(F). The simplest and clear- rejection notice; yet, the creditor filing time est way to do away with 337(C) would have did not extend indefinitely, thus eventually been to delete it, which the Legislature did not. allowing the estate to close definitively. The new changes should not be wrongly stretched to effectively delete 377(C). However, under a different set of facts, the new change could produce a different result. THE SENTENCES IN PRACTICE Example 2: In the Smith estate, the PR files It appears both sentences can have their notice to creditors on March 1 and mails notice desired effect under certain circumstances. to the only known creditor on the same day.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2217 The presentment date is May 1 — two months 4) However, the second sentences of the new from the filing of the notice. The creditor files a change limit the time for creditors to file suit to proper claim under law with the PR on March the unknowable (from the creditor’s perspec- 10. The PR files petition for final accounting tive) time when the PR files a petition for final and distribution on May 2, the day after the accounting. This could, in some circumstances, presentment date. shorten the time for creditors to file suit after a deemed rejection to even less than the former A. Under the Old Indirect Rejection 45 day limit. (see Example 2 above) Scheme: If the PR did nothing, the claim would be effectively rejected 30 days after 5) The new change measures the time for a March 10 or after April 9. The creditor creditor to file a suit on a claim that a PR indi- would then have 45 days to file suit, or until rectly rejects/pocket vetoes, not by the old May 24, or the claim would be barred. bright line of 45 days, but instead by the new Under the old scheme, it would not be line of when the PR files a petition for final proper for the PR to file a petition for final accounting. accounting and distribution until after May 6) It appears the 45 day timeline is still in 24 — the May 2 filing would be premature. place for direct rejections with notice of rejec- B. Under First Sentences Only (Original tion sent to the creditor. Proposed Bill): After the creditor filed its CONCLUDING COMMENTS claim on March 10, the time for the creditor to file its claim would never expire because 1) The new system put in place by the change the PR never sent notice of the rejection to is not a bad system, and indeed is much, much the creditor. better than the original proposed bill. Howev- er, the prior statutory scheme was superior for C. The Effect of the Second Sentences at least a couple of reasons. (Amendment and Second Sentences in the Eventual Law): The creditor would no First, the system was clearer and gave all par- longer have a right to bring a suit on the ties involved more bright-line guidance – down indirectly rejected claim after the PR filed to specific number of days. Second, the prior the petition for final accounting and distri- system had been in place for at least 20 years. bution May 2. This example gives the It was the well-known, well-established prac- creditor a much shorter timeline to file tice of all involved in the probate process. Case than the 45 days under the prior indirect law had been established under the statute to rejection scheme — in this example some further guide practitioners. 22 days less.15 It would probably bring more clarity to the It is unclear whether the Legislature account- law and all the parties involved in the probate ed for a situation such as the one set forth process if the Legislature deleted the new Sec- above in Example 2. However, as long as tion F of OKLA. STAT. tit. 58 §337 and rein- everyone involved in the probate process is stated the former statutory scheme. aware of the change, they can adjust their 2) The new changes should not be interpret- behavior accordingly. ed as doing away with the indirect rejection/ SUMMARY pocket veto option for PRs, nor should the Leg- islature seek to do this in the future, as the 1) The indirect rejection/pocket veto appears original House bill related to the recent chang- to still be an option for PRs. es did. It is beyond the scope of this article to 2) The first sentences of the new change set forth all the arguments on this point, but a began as a bill to effectively do away with the few key points are below. indirect rejection/pocket veto, but was tem- A. The Law Protects the Vigilant. As a pered by an amendment in the form of the fundamental principle of Oklahoma pro- second sentences. bate law, the burden to pursue creditor 3) When a deemed rejection takes place (after claims should primarily be on creditors — 30 days), the language of the first sentences can not PRs and heirs. Creditors generally have and often will extend the time for creditors to more sophistication and resources. They file claims beyond the former 45 day limit. (see also have a strong motivation to collect Example 1 above) what is owed to them. The law generally
2218 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 protects the vigilant, not those who sit back probates that make it harder and more and wait on the law or other parties. expensive for PRs to negotiate with credi- tors and deny them when necessary – lead- B. How much notice is enough? PRs ing to more liquidations to pay creditors? already have the burden to directly contact This seems inconsistent policy-wise. creditors once. Creditors also get a second notice by publication, which occurs twice. 3) To the best of this author’s knowledge, PRs should not be further required in every these changes were made without substantial estate, in every situation, to contact credi- discussion with the Estate Planning, Probate, tors directly again a third time regarding and Trust Section of the Oklahoma Bar Associ- acceptance or rejection. Can creditors not ation, or other groups. If this is in fact the case, follow up on their own claims without the it does not seem to make sense to pass laws law requiring PRs to walk them through without substantial discussion with the very the process at estate expense? If creditors group that will be most affected in helping citi- lobby hard enough, will PRs have to even- zens implement them. The dialogue between tually give creditors notice of every hear- the Legislature and the bar needs to improve. ing — just like the decedent’s own family 4) The use of revocable living trusts has and beneficiaries? One day will PRs be increased greatly in recent years. To the best of required to give creditors notice to sell the author’s knowledge, there is no creditor property? claim statute that relates to the administration C. PRs need flexibility to deal with dif- and distribution of these trusts. There is really ferent types of creditors in different situ- no compelling underlying legal rationale for ations. Generally if there is a clear, genu- this difference between trust and estate admin- inely-owed debt, PRs and families do their istration. Rather than spending time develop- best to take care of it. It is vague printouts ing creditor claim rules that are more burden- from debt collectors, years of old charges some on estates and PRs, why not spend that from hospitals (often beyond the statutes energy attempting to develop a fair, uniform of limitations), mysterious surcharges from system for handling claims in cases of all Okla- credit card companies and the like that homa decedents with revocable estate plans? PRs do not rush to pay. Often creditors In conclusion, attorneys and all persons who present the least-clear claims are the involved in the probate process need to be most unwilling to negotiate and communi- aware of the recent changes to the creditor cate professionally. The law should not claim laws. In sum, it appears the new changes make it more difficult for PRs to negotiate measure the time for a creditor to file a suit on with, and deny when necessary, these a claim that a PR indirectly rejects/pocket types of creditors. Yet these creditor groups vetoes, not by the old bright line of 45 days, but tend to have better-funded lobbies and instead by the new line of when the PR files a louder voices in the political square than petition for final accounting. Hopefully this the PRs and heirs of small and medium article will be of some use in raising awareness sized estates. of the new changes and related issues. D. Liquidation Policies. There was much rhetoric in the Oklahoma Legislature dur- 1. Throughout this article the term “probate” is used in a general sense to refer to both procedures where there is a will as well as those ing the repeal of the Oklahoma estate tax where there is not a will. Similarly, the term “personal representative” about protecting estates from liquidation, or “PR” (“PRs” plural) is used in a general sense to refer to the official court-appointed representative of an estate, whether there is a will or especially estates of small business owners not, and could even apply to a special administrator under Okla. Stat. and family farmers. yet, most attorneys tit. 58 §215. This is done for simplicity of communication and because the claims process is largely, if not exactly, the same in each circum- who routinely are involved in “mom and stance. pop” estates of small and medium size 2. Okla. Stat. tit. 58 §§331, 331.1. would report, if asked, that creditors are 3. Id. at §§331, 331.2. 4. Id. at §332. almost always a larger issue than the estate 5. Id. at §331. tax, especially in recent years. Liquidations 6. Id. at §§331, 333. Some common exceptions to this general rule are: where decedents have been dead for more than five years, the are much more likely to happen to pay bills presentment time is shortened to one month; and, mortgagees holding than to pay estate tax. Why would the real estate mortgages do not lose the right to foreclose by failing to file a creditor’s claim, although they do lose the right to a deficiency judg- Oklahoma Legislature repeal the estate tax, ment against the estate. largely to prevent liquidations, and then 7. Id. at §334. make changes to creditor claim laws in 8. Id. at §337(B).
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2219 9. Id. at §§337, 339. The time for suit is two months after the claim becomes due, if it is not yet due. About The Author 10. Id. at §337(A). The statute does not state this directly, but presum- ably if the court directly rejected a claim, the PR would send notice in the same manner they would had the PR directly rejected the claim. Cory Hicks practices in Guy- 11. Id. at §334. mon, primarily in the areas of 12. Id. at §337 (C)(1). This similar rule is applied to judges under probate and trust administration, §(C)(2). 13. Under Article I, Section 7 of the U.S. Constitution, when Con- estate planning, real estate and gress is not in session and a bill passed by Congress is presented to the business law. He is an adjunct president, if he neither signs the bill into law nor vetoes the bill but takes no action at all (i.e. just “sticks the bill in his pocket”), the bill will professor of business law at Okla- automatically be “pocket vetoed” after 10 days. homa Panhandle State Universi- 14. http://webserver1.lsb.state.ok.us/WebBillStatus/main.html 15. Practitioners representing PRs might give some thought as to ty. He received his law degree whether it would be the best practice to allow creditors 45 days to file from the University of Oklahoma, suit before trying to bar them with a petition for final accounting, at least until this statute is more established and/or clarified through case law. where he was a published member At the very least, clients should be clearly advised on this point. of the Oklahoma Law Review. In 2009, he graduated from the OBA’s first Leadership Academy.
PUBLIC NOTICE FOR REAPPOINTMENT OF INCUMBENT BANKRUPTCY JUDGE The current 14-year term of office of Terrence L. Michael, United States Bankruptcy Judge for the Northern District of Oklahoma at Tulsa, Oklahoma, is due to expire on June 8, 2011. The United States Court of Appeals for the Tenth Circuit is presently considering whether to reappoint Judge Michael to a new 14-year term of office. Upon reappointment, Judge Michael would continue to exercise the jurisdiction of a bank- ruptcy judge as specified in title 28, United States Code; title 11, United States Code; and the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § § 101-122, 98 Stat. 333-346. Members of the bar and the public are invited to submit comments for consideration by the court of appeals. All comments will be kept confidential and should be directed to: David Tighe Circuit Executive Byron White United States Courthouse 1823 Stout Street Denver, CO 80257 Comments must be received not later than Wednesday, November 17, 2010.
2220 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 OKLAHOMA CORPORATION COMMISSION 2010 OIL AND GAS INSTITUTE “OKLAHOMA’S ENERGY FUTURE: NEW CENTURY ~ NEW CHALLENGES” Sponsored by: Oklahoma Corporation Commission Oil and Gas Conservation Division Office of Administrative Proceedings • Office of General Counsel Oklahoma Bar Association Energy and Natural Resources Law Section Friday, November 19, 2010 • 8:30 a.m. to 4:00 p.m. Emerson Hall • Oklahoma Bar Center 1901 N. Lincoln Boulevard • Oklahoma City, Oklahoma 8:00 - 8:30 Registration 8:30 – 9:00 Welcome The Honorable Dana Murphy, Corporation Commissioner 9:00 – 10:00 Panel: The Rulemaking Process, Oil and Gas Conservation Rules, Horizontal Drilling and Spacing Regulations, the OCC’s Rules of Practice Moderator: The Honorable Dana Murphy, Corporation Commissioner; Panel: Angela Burckhalter, Vice Presi- dent Regulatory Affairs, Oklahoma Independent Petroleum Association; Ron Dunkin, Manager, Technical Ser- vices, Oil and Gas Conservation Division; Chad McDougall, Vice President, JMA Energy Company; John Reeves, Attorney at Law; Terry Stowers, Attorney at Law and National Association of Royalty Owners 10:00 – 10:15 Mid-Morning Break 10:15 – 11:15 Panel: Oklahoma Perspective on Current National Issues -- Horizontal Drilling, Hydraulic Fracturing; Water Use, Recycling, and Disposal; Oil Spill Prevention; and Carbon Capture and Storage Moderator: Lori Wrotenbery, Director, Oil & Gas Conservation Division; Panel: Paul Hagemeier, Vice President, Environmental Compliance, Chesapeake Energy Corp.; Barbara Rauch, Supervising Attorney, Oklahoma Department of Environmental Quality; Keith Tracy, Attorney/CO2 Business Development, Chaparral Energy, L.L.C.; Michael Zumwalt, Chief Financial Officer, 212 Resources Corp. 11:30 – 12:30 Catered Lunch Emerson Hall 12: 00 – 12:30 Mock OCC Environmental Permit Hearing ALJ David Leavitt, ALJ Michael Norris, ALJ William Peterson, ALJ Michael Porter, ALJ Paul Porter, Office of Administrative Proceedings; Connie Moore, Senior Assistant General Counsel, Office of General Counsel; Lee Levinson, Attorney at Law; Robert Miller, Attorney at Law 12:30 - 1:30 Ethics Presentation AndrewT evington, General Counsel, and Jim Hamilton, Senior Assistant GeneralCounsel, Office of General Counsel 1:30 - 2:30 Panel: Horizontal Drilling, Hydraulic Fracturing, and the OCC’s Environmental Permitting Process Moderator: The Honorable Jeff Cloud, Corporation Commissioner; Panel: Professor Christopher A. Tytanic, Oklahoma City University School of Law; Tim Baker, Manager, Pollution Abatement Dept., Oil and Gas Con- servation Division; Dale Cottingham, Attorney at Law; Dean Couch, General Counsel, Oklahoma Water Resources Board; Brad Gungoll, Attorney at Law; Keith Thomas, Senior Assistant, General Counsel, Office of General Counsel 2:30 – 2:45 Mid-Afternoon Break 2:45 – 3:45 Panel: Update on the Oil and Gas Conservation Adjudication Process Moderator: ALJ Michael Decker, Director, Office of Administrative Proceedings; Panel: ALJ Patricia MacGuigan, Oil and Gas Appellate Referee; ALJ Curtis Johnson; ALJ Susan Osburn; ALJ Michael Porter; Office of Administra- tive Proceedings; Richard Books, Attorney at Law; Eric King, Attorney at Law; Gregory Mahaffey, Attorney at Law; John Moricoli, Attorney at Law; Sally Shipley, Deputy General Counsel, Office of General Counsel 3:45 - 4:00 Evaluation and Acknowledgements ALJ Michael Decker Please checkout the Oklahoma Corporation Commission’s information booth in the lobby for demonstrations of the Commis- sion’s new website and current online oil and gas forms and reports. Guidance about online filing of forms and reports with the Oil and Gas Conservation Division will be available from 8 a.m. - 4 p.m. Fee: $65 (pre-registration by COB Wednesday, November 17, 2010) or $75 (registration at the door). Please make checks payable to: “Oklahoma Corporation Commission, 2010 Oil and Gas Institute.” No credit cards please. The seminar is approved by the Oklahoma Bar Association’s Mandatory Continuing Legal Education Commission for 6.5 hours of MCLE credit, with 1 hour ethics credit included. Please register online at www.occeweb.com “Hot Topics” menu. Register by mail or fax: c/o Ms. Snooks Campbell, Office of Administrative Proceedings, Oklahoma Corporation Commission, P.O. Box 52000, Oklahoma City, Oklahoma 73152-2000, Tele- phone: (405) 521-2756, Facsimile: (405) 522-6397. Seating is limited so please register promptly. Please follow-up with a tele- phone call if you fail to receive a confirmation e-mail response to an online registration. Additional inquiries to: ALJ Michael Decker, OAP Director (405) 521-2241, [email protected]. Thank you.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2221 2222 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Probate & ESTATE PLANNING Dealing with Undue Influence By LeAnn Page Drummond
state planning attorneys are occasionally approached by the caretaker, pastor, friend, financial advisor, charity represen- Etative, child or other confidant to prepare a will for an elderly individual. What does an attorney do in these circum- stances when the client is elderly and looks to someone else, like a confidant, to help decide important issues? What if this same testator sincerely desires to make a sizable bequest to a charity or a specific beneficiary such that the bequest will effectively disin- herit family members? How does an attorney assist with a will with an unnatural bequest so that the will is admitted to probate? To be of assistance, an attorney needs to understand Oklahoma case law regarding undue influence.
The purpose of this article is to assist attor- physical or mental condition is relevant in both neys drafting a will or trust in identifying tech- capacity and undue influence cases. In many niques to minimize claims of undue influence. situations, the will contestant will often claim The statements in this article primarily focus lack of testamentary capacity as well as undue on “undue influence” as it relates to wills — influence. however, this same type of analysis by analogy 1 An attorney should keep in mind that the could be applied to the validity of a trust. same type of evidence reflecting testamentary The Oklahoma Supreme Court has held that competency4 such as testator’s appearance, when a will is offered for probate, the court is conduct, habits and conversations is helpful to to focus on whether the will was executed with reflect on whether the testator had an indepen- statutory formalities, whether the testator was dent will which is a component of the claim of competent at the time of the will making and undue influence. Generally, in undue influence determine if the will is the product of undue cases, the requisite testamentary capacity of influence, fraud or duress.2 Accordingly, the the testator is present. issue of testamentary capacity is generally a It is important to understand the term “undue separate and distinct issue from the issue of influence.” Undue influence is that degree of undue influence because the requisite mental influence which destroys the testator’s free capacity is separate from the loss of free agency agency and rises to a level of coercion which in by another.3 Asserting undue influence is not effect substitutes another’s will for that of the the same as asserting a lack of capacity. How- testator’s.5 The Oklahoma Supreme Court has ever, as a practical matter, a testator’s impaired further held that a claim of undue influence
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2223 can be sustained whether or not the person In 2002, the Supreme Court in Holcomb re- exerting the overbearing influence actually characterized these factors of undue influence benefits personally under the will’s terms.6 as a non-exclusive list that are probative on the Thus, a representative of a charity can be found presumption of undue influence as argued by to have exerted undue influence over a testator the contestant.18 Once the will contestant estab- even though the representative did not person- lishes a rebuttable presumption of undue influ- ally benefit.7 Although Oklahoma statutory ence, the burden of producing evidence shifts 19 law prescribes the manner of executing and to the will proponent. Under the Maheras attesting a will and sanctions undue influence standard, the proponent of the will may rebut as a ground for a will’s invalidation, it provides the presumption of undue influence by pro- no detailed provision regarding either the pro- ducing evidence on the following two ele- cedure or the proof in these contests.8 The stat- ments: 1) the severance, or nonexistence of the confidential relationship, or 2) that the testator ute of limitations for undue influence is five had competent and independent advice on the years.9 Influence of a general nature is not suf- subject.20 The Supreme Court in Holcomb re- ficient to constitute undue influence. Undue examined the application of the two elements influence consists of action directed toward the 10 in rebutting the presumption of undue influ- creation of the will. ence by the will proponent and clarified that The Oklahoma Supreme Court in a series of these two elements were not the only factors cases, Beal,11 Maheras,12 Sneed13 and Holcomb14 has that should be considered in rebutting the pre- developed Oklahoma case law regarding sumption of undue influence by the will pro- undue influence and the procedural presump- ponent. The Supreme Court further held that tions. These cases have consistently held that although the two elements cited in Maheras the burden of proof to first produce evidence of generally suffice to rebut the presumption, undue influence is upon the contestant.15 In their absence is not fatal to the presumption’s 1998, the Oklahoma Supreme Court in Beal rebuttal so long as other probative evidence is adduced.21 established that this burden of proof can shift to the proponent of the will in the case of In its holding, the Supreme Court empha- alleged undue influence upon a finding by the sized that the will proponent does not have the trial court (a) that a confidential relationship burden of persuasion, but simply must intro- existed between the will maker and another, duce some evidence from which the trier could stronger party and (b) that the stronger party find that undue influence did not engender the actively assisted in the preparation or procure- will’s dispositive provisions.22 Therefore, if the ment of the will.16 In 1995, the Supreme Court will proponent introduces evidence which in Maheras provided balance to this shift of the would support a finding that undue influence burden of proof by offering the following five was not brought to bear against the will maker, factors which give rise to the presumption of the presumption disappears and the trial court undue influence: must determine the existence or nonexistence of undue influence on the preponderance of 1) Whether the person charged with undue the evidence and the burden of proof is restored influence was not a natural object of the to contestant. If however, a proponent cannot maker’s bounty; do this, a directed verdict should be entered against the will proponent.23 2) Whether the stronger person was a trusted or confidential advisor or agent The Holcomb case abandons the Maheras con- of the will’s maker; cepts that the only way the presumption of undue influence in those situations involving a 3) Whether the confidant was present and/ confidant who participates in the preparation or active in the procurement or prepara- or procurement of the will may rebut is by tion of the will; either showing the severance of the confiden- 4) Whether the will’s maker was of tial relationship or the existence of indepen- advanced age or impaired faculties; and dent counsel. Under Beal and Maheras, if inde- pendent counsel was not involved in the prep- 5) Whether independent and disinterested aration or procurement of the will then pre- advice regarding the testamentary dis- sumption of undue influence was almost position was given to its maker17 impossible to rebut if the will contestant had
2224 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 established that a confidant the substance of the testamen- had participated in the pro- tary act and not just participa- curement of the will. In Hol- tion in formal matters under- comb, although the Supreme In order to be taken at the direction of the Court concluded that indepen- will maker.35 Factors to consid- dent advice was not given, ‘sufficiently dissociated,’ er in “active participating or there was support to a finding procurement” include confi- of the nonexistence of undue the attorney should dant contacting the necessary influence based upon the inde- advisors, meeting advisors pendent and strong-willed carefully analyze her without testator present, mak- nature of the testator as well as ing the appointments, trans- the rationality of the disposi- relationship with the porting testator to meetings, tion scheme of the will in ques- paying for legal services, safe- tion. Specifically, the testator confidant to ensure there keeping the will, knowing the had indicated to a disinterest- terms of the will and voicing ed neighbor that she named is not a conflict opinions regarding disposition her daughter as sole beneficia- scheme. The more factors pres- ry in gratitude for the care her of interest. ent in a case, the greater the daughter had given her and likelihood that a court will find concern for the daughter’s that the confidant engaged in financial security. The Supreme active procurement. Court ultimately held based upon the facts and Third, in Holcomb, the Supreme Court held circumstances of the case that the District Court’s that for advice to be considered independent, determination that the will was the testator’s the advisor must 1) provide the will maker free and voluntary act was not contrary to the with a full and private consultation regarding weight of the evidence.24 the disposition of his estate, 2) be competent to Given the presumptions, it is important that inform the will maker about the legal effect of attorneys focus on the following three key con- his dispositive intentions and 3) be sufficiently cepts: 1) existence of a confidential relation- dissociated from the interest of the proponent of ship, 2) active participation or procurement of the will.36 In order to be “sufficiently dissociat- the will by the confidant and 3) whether inde- ed,” the attorney should carefully analyze her pendent advice was given. In developing these relationship with the confidant to ensure there three concepts, the attorney should give con- is not a conflict of interest. Any relationship sideration to the age, personality, health and between the attorney and the confidant should ability of testator to handle financial affairs be disclosed to testator, and if deemed neces- because courts appear to give significant weight sary, a waiver of the conflict of interest should to a testator’s testamentary deference. be signed by the testator. Also, the attorney should be in compliance with the rules of pro- First, the concept of confidential relationship fessional conduct if the confidant, rather than is defined as existing whenever trust and con- the testator, is paying for the services. fidence are placed by one person in the integ- rity and fidelity of another.25 Oklahoma courts In summary, in deciding whether an attorney have examined confidential relationships in should undertake the engagement of an elderly and among wife and husband,26 minister and person who desires to make a sizable bequest church member,27 nephew and uncle,28 illicit to a charity or a specific beneficiary such that lovers,29 maid, chauffeur and their employer,30 the bequest will effectively disinherit family financial advisor,31 co-trustee and trustor.32,33 In members, the attorney should consider the fol- Beal, the Oklahoma Supreme Court held that lowing precautions: declaring a relationship confidential is where • Testator should consult with an indepen- there is weakness on one side and strength on dent and disinterested advisor, without the other resulting in dependence. Thus, the the confidant being present or driving condition of the testator is of critical impor- the client to see the advisor. Have testator tance in determining whether one individual, carefully explain to advisor the reasons for in effect, overpowers another individual.34 his bequest and why he does not want to Second, the participation that will taint a will give to his heirs. This testimony can be must be active participation or procurement in critical. A disinterested advisor is better
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2225 suited to testify about conversations with 4. Testamentary competence is knowing in a general way the prop- erty a testator owns, the persons who are the natural objects of his the testator, rather than attorney. Request bounty, and generally the effect of testator signing a will. Whether one advisor prepare contemporaneous memo- possesses testamentary capacity is a question of fact. See In re Estate of Lacy, 1967 OK 123, 431 P.2d 366, 371. randum regarding the discussions. 5. Estate of Sneed, 1998 OK 8, 953 P. 2d 1111, 1117. 6. Estate of Maheras, 1995 OK 40, 897 P.2d 268, 273. • Consider response of other family mem- 7. Id. at 274. bers whose interest is reduced or elimi- 8. 58 O.S. 1991 §§41 (2),1. 61(3) and 84 O.S. 1991 §43. See also, White v. Palmer, 1971 OK 149, 498 P.2d 1041, 1406-1407. nated in the new will. A family meeting 9. See 12 O.S. 1991 §95(a)(12). Burkes v. Estate of Burkes, 1997 OK 76, may be an effective tool to address issues 945 P.2d 481, 484. 10. 824 2nd Tax Management Testamentary Capacity and Validity of while testator is alive. Wills A-56 (2007). 11. Estate of Beal, 1989 OK 23,769 P.2d 150. • When advisable, will should remain in 12. Estate of Maheras, 1995 OK 40, 897 P.2d 268. possession of decedent. Evidence reflect- 13. Estate of Sneed, 1998 OK 8, 953 P.2d 1111. 14. Estate of Holcomb, 2002 OK 90, 63 P.3d 9. ing that will was not changed, altered or 15. Estate of Beal, 1989 OK 23, 769 P.2d 150, 154. revoked during the time of execution 16. Id. 17. Maheras, 1995 OK 40, 897 P.2d at 272-273. and demise may be helpful in establish- 18. Holcomb, 2002 OK 90, 63 P.3d at 15. ing a lack of undue influence. 19. Id. 20. Maheras, 1995 OK 40, 897 P.2d at 273. • Attorney should not bypass the testator 21. Holcomb, 2002 OK 90, 63 P.3d at 18-19. 22. Id. at 19. in drafting and review of estate planning 23. Id. documents in favor of the confidant. 24. Id. at 22. 25. Id. at 16. Attorney should provide full and private 26. Estate of Mowdy, 1999 OK CIV APP 4, 973 P.2d 345. consultation regarding will and its rami- 27. Maheras, 1995 OK 40, 897 P.2d at 273. fications and attorney should not meet 28. Hubbell v. Houston, 1967 OK 138, 441 P.2d 1010, 1011. 29. Estate of Newkirk, 1969 OK 93, 456 P.2d 104. with confidant without testator present. 30. In re Lillie’s Estate, 195 OK 597, 159 P.2d 542. 31. In re Martins’ Estate, 1953 OK 260, 261 P. 2d 603. • Confidant should not be present during 32. Edwards v. Urice, 2009 OK CIV APP 20, 220 P.3d 1145. the execution ceremony of the will. Attor- 33. For a more in depth discussion and example of relationships deemed confidential relationship, See 824 2nd T.M. Testamentary Capac- neys may want to consider securing wit- ity and Validity of Wills at A-57, 58. nesses with long-term relationships to 34. Beal, 1989 OK 23, 769 P.2d at 155. 35. Holcomb, 2002 OK 90, 63 P.3d at 16-17. the testator, rather than staff members. 36. Holcomb, 2002 OK 90, 63 P.3d at 19. • Attorney should consider medical evalu- tations of testator by health professionals. About The Author • Attorney may want to videotape or record meetings in which the testator LeAnn Page Drummond gradu- explains his disposition scheme. ated from OSU and received her J.D. from OU with distinction • Attorney should consider utilizing no- and was named to Order of the contest clauses which reduce or eliminate Coif. She is a partner with Ellis & a beneficiary’s request if beneficiary con- Drummond in Stillwater and of tests the will. counsel with Glass Wilkin of Taking precautions such as those listed above Tulsa. Her practice focuses on should be carefully considered by the attorney estate and tax planning, corporate so that will contests based upon undue influ- law, tax-exempt organizations, ence may be avoided. trust litigation and probate. She was past chair of the OBA Estate Planning, Probate and Trust section and 1. Estate of Gerard v. Gerard, 1995 OK 411, 911 P.2d 266 (applying regularly presents on recent developments in the areas Maheras analysis in equitable challenge to validity of trust). 2. In re Estate of Lacy, 1967 OK 123, 431 P.2d 366, 368. of estate planning, probate and trust law. 3. Estate of Sneed, 1998 OK 8, 953 P.2d 1111, 1119.
2226 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Legal Aid Services of Oklahoma Inc. Oklahoma Indian Legal Services Inc. FAMILY PRACTICE MONTAGE XIV
SELECTED TOPICS FOR PRO BONO ATTORNEYS Monday, October 25, 2010 Oklahoma Bar Center, Emerson Hall, 1901 N. Lincoln Blvd., Oklahoma City, Oklahoma MCLE Credit of 7.0 Hours, Including 1.0 hours of ethics PROGRAM AGENDA Moderator: Richard J. Vreeland 8:30-8:55 Registration & Continental Breakfast 8:55-9:00 Welcome 9:00-9:50 Recent Developments in Family Law Robert G. Spector, Glenn R. Watson Centennial Chair in Law, Univ. of Oklahoma College of Law 9:55-10:45 Understanding the Hidden Dynamics of Domestic Violence. Matt Atkinson, Oklahoma Coalition Against Domestic Violence and Sexual Assault 10:50-11:40 Working With OCSS as a Necessary Party Amy Wilson and Elizabeth Wilson, Oklahoma Child Support Services 11:40-1:00 Lunch (on your own) Sign-in after lunch for the afternoon session. 1:00-1:50 Domestic Violence – Law Enforcement Perspective Detective Robert Kemmet, Oklahoma City Police Department 1:55-2:45 The Power of Story Paula Wood and Richard Goralewicz, Staff Attorneys, Legal Aid Services of Oklahoma Inc.
2:55-3:45 Ethics Update 2010 Travis Pickens, Ethics Counsel, Oklahoma Bar Association
3:50-4:40 UCCJEA – Still Misunderstood After All These Years T. Neil Lynn, Oklahoma City Managing Attorney, Legal Aid Services of Oklahoma Inc.
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2227 2228 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Probate & ESTATE PLANNING
Update: Rights of Beneficiaries to Sue on Behalf of the Estate In re Estate of Bleeker, 2007 OK 68 By Sarah C. Stewart
POTENTIAL CLIENT distraught, confused, and concerned potential client enters your office one day. Through her tears, she tells you the Astory of how her loved one recently passed away. your potential client was named in the will, but another was named executor of the estate. The executor does not care about the estate’s beneficiaries. your potential client knows this because she has told the executor of specific possessions other beneficia- ries have swindled from the estate. She knows the value and quantity of each of the items these beneficiaries have taken from the others.
When your client told the executor of the THE LAW theft, the executor shrugged his shoulders and The General Rule refused to investigate further. He told her there was no proof and he did not want to expend Though the general rule followed for many the estate’s resources on the claim. Your poten- years is that a personal representative must tial client tells you one of the items taken was bring claims on behalf of the estate, the ques- an item that was meant to go to her, an item tion of whether a devisee/legatee under a will, with little monetary value, but profound senti- other than an personal representative, could mental value. She desperately wants this item, sue on behalf of the estate in certain situations as it helps her remember the good times she remained unanswered. Until recently, Okla- spent with the loved one she lost. “How can homa courts had not settled the issue, though you help me?” she asks you, as she dabs her other state courts had answered this question eyes with a tissue. What do you tell this poten- in the positive. However, in 2007, the Okla- tial client? How can you help her and others in homa Supreme Court joined the trend in other similar situations? states by allowing exceptions to the general
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2229 rule only a personal representative may sue on behalf of the estate. The case of In re Estate of Bleeker, 2007 OK 68, Though generally, the personal gave the Oklahoma Supreme Court a chance to rule on whether parties other than the representative retains responsibility for appointed personal representative of the estate may seek leave of court to bring suit on behalf the matters of the estate, there is no of the estate. In re Bleeker concerned an aunt rule stating the court may not allow who was named administratrix of her neph- ew’s estate. Beneficiaries of the estate moved other parties to bring an action. to remove the aunt as personal representative because she failed to timely execute certain duties, like filing an inventory, and a profes- since extenuating circumstances like refusal to sional fiduciary was appointed as the succes- act, fraud and connivance necessitate action to sor personal representative. protect the estate, beneficiaries may petition Before her removal, the aunt filed an ancil- the court to bring suit on the estate’s behalf. lary action against several beneficiaries, claim- ing they had removed property from the estate In order to receive permission to bring a and refused to return all of the property they claim, the beneficiary must first petition the had removed. She alleged the beneficiaries court and allege the reasons why the benefi- committed fraud, conspiracy to defraud and ciary should be allowed to bring the claim. The conversion of estate property. The successor beneficiary is then entitled to an adversarial personal representative refused to pursue the hearing regarding the claim. The court noted claim because it found the cost of pursuing that certain factors, like whether the beneficia- such a claim not worth the benefit, particularly ry seeking to pursue the claim would be given the unknown value and extent of the responsible for paying the attorney’s fees and missing property. costs associated with such action, were relevant to the probate court’s decision. After the aunt was removed as personal rep- resentative, the beneficiaries argued she no THE IMPLICATIONS longer had standing to pursue the ancillary Judy Tuggle, an Oklahoma attorney with the action against them. The trial court agreed, and firm of McAlister, McAlister and Tuggle, is 17- dismissed the aunt’s claims. The aunt, relying year veteran of trust and estate administrations, on the common law of other states, argued her and strongly agrees with the court’s ruling in position as a beneficiary of the estate allowed Bleeker, saying that because time is of the essence her to bring claims on the estate’s behalf when in the case of many probates, it is important to the appointed personal representative refused bring these types of claims quickly. Assets to do so. originally known to be part of the estate may The Exception no longer exist or come up missing during the probate process. The Oklahoma Supreme Court ultimately agreed with the aunt. The court reiterated the If beneficiaries are unable to fight for the general rule that title to decedent’s property assets that are important to them in certain passes to the personal representative at death; situations, they will be left without any recourse and thus, the personal representative usually when their loved ones’ assets disappear. The retains the right to bring suit on the estate’s Bleeker court’s decision will help speed up the behalf. However, the court recognized excep- probate process and the retrieval of assets for tional circumstances where beneficiaries could beneficiaries in certain situations. “The repre- bring suit. These circumstances include 1) the sentative should represent the estate, but if the personal representative’s refusal to act, 2) representative is dragging his or her feet, the fraud, and 3) collusion. beneficiaries will suffer,” Ms. Tuggle said. Though generally, the personal representa- Additionally, the court in Bleeker seems to tive retains responsibility for the matters of the infer that if the beneficiary agrees to pay for the estate, there is no rule stating the court may not legal fees and expenses of pursuing a claim, allow other parties to bring an action. Thus, then this is strong factor in favor of the probate
2230 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 court allowing such action. Such an outcome should alleviate a hesitant personal representa- tive’s concerns, since the beneficiary seeking to You are not alone. pursue the claim will be responsible for any attorney’s fees and court costs expended to locate or retrieve the property they seek. It appears such a decision is equitable in that the person bearing the costs is the one creating the cost, instead of risking the other beneficiaries’ inheritances in what may be a fruitless pursuit of assets. Ultimately, the court’s decision allows benefi- ciaries the choice of pursuing their inherited assets from the estate when the personal repre- sentative ignores their interests. As many attor- neys have discovered, usually personal repre- sentatives serve the interests of the majority of beneficiaries, and sometimes, the minority ben- eficiary interest is just as important. As such, the decision in Bleeker opens the door to protecting minority beneficiaries’ interests whenever they are willing to fight for them, particularly if will- ing to pay the costs of such action. Moreover, the court protects personal representatives’ rights by implementing a procedure in which the beneficiary must first petition the court and meet specific criteria in order to receive permis- sion to act on behalf of the estate. Such built-in safeguards assure that the decedent’s choice of personal representative is not disturbed unless interference is absolutely necessary. Editor’s Note: Look for the following probate arti- cles in the January 2011 issue: Pledges to a Charity: Can They Be Enforced and Men Helping Men When Should They Be? By Gary C. Clark October 28 Puzzling Predicaments of Probate Parts 1 – 3 The Best Plan for Me By Judge Linda Morrissey and Julie Bushyhead Time - 5:30-7 p.m. Location About The Author The Oil Center – West Building 1st Floor Conference Room Sarah Crystal Stewart is an 2601 NW Expressway attorney at McLendon & Murphy Oklahoma City, OK 73112 PC in Oklahoma City. She repre- * Food and drink will be provided! sents clients in family law, estate * Meetings are free and open to male OBA members. planning, probates, foreclosure * Reservations are preferred. (We want to have enough defense and business organiza- space and food for all.) tion. She received her B.A. in For further information and to reserve your spot, Spanish and in journalism and please e-mail [email protected]. broadcasting with an emphasis on public relations from Oklahoma State University. She received her J.D. from Okla- LAWYERS HELPING LAWYERS homa City University. ASSISTANCE PROGRAM
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2231
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2232 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2233 SECTION NOTE
Labor and Employment Law Section About Face by Oklahoma Supreme Court Means Discrimination Claims Can be Brought Against Small Employers Smith v. Pioneer Masonry Inc. By Kimberly Lambert Love and Shannon P. Wheeler
Gone are the days that Oklahoma small the court in Pioneer made it clear that employ- employers are exempt from employment dis- ers may be subject to a Burk tort claim for crimination lawsuits. State and federal statu- employment discrimination “regardless of the tory antidiscrimination laws such as the Okla- number of employees.”10 homa Anti-Discrimination Act (OADA),1 Title In .Pioneer , Mr Smith brought suit against his VII of the Civil Rights Act, as amended (Title employer, a small construction company with VII),2 the Age discrimination in Employment less than 15 employees, alleging that he was Act (ADEA)3 and the Americans with Disabili- constructively discharged due to racial dis- ties Act (ADA)4 apply only to employers with a crimination and harassment.11 Pioneer moved minimum threshold number of employees (i.e. to dismiss the lawsuit based upon Brown v. 15 or 20).5 Oklahoma courts in the past have Ford,12 and argued that a Burk tort was not given deference to this legislative limitation available to the plaintiff because his employer and have likewise held that small employers had less than the 15 employee threshold cannot be sued under the common law public required by the OADA. The Pioneer trial court policy tort claim established in Burk v. K-Mart agreed and dismissed the Burk tort claim. On Corp.6 for terminations that allegedly violate appeal, the Oklahoma Court of Appeals Oklahoma’s public policy against employment affirmed the trial court’s decision on the same discrimination.7 However, as part of an ongo- basis.13 However, the Oklahoma Supreme Court ing expansion of the Burk tort,8 the Oklahoma reversed and overruled its previous precedent Supreme Court held that all employers in Okla- in Brown . homa regardless of size may be liable in tort for employment discrimination. The Pioneer decision appears to be a continu- SMITH V. PIONEER MASONRY INC. ation of the Oklahoma Supreme Court’s recent revitalization and expansion of the Burk tort In late 2009, the Oklahoma Supreme Court principles. For example, in Saint v. Data Exchange issued its opinion in Smith v. Pioneer Masonry Inc.,14 and Shirazi v. Child Learning Ctr. Inc.,15 the Inc.,9 holding that small employers (those with court reversed earlier precedent and extended less than 15 employees) are no longer immune Burk tort liability to all forms of discrimination from common law public policy tort claims covered by the OADA — reasoning that all alleging employment discrimination. Although individuals subjected to employment discrimi- small employers remain excluded from statu- nation consist of a single class to which the tory remedies for employment discrimination, Burk tort remedy is available. This holding was
2234 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 based on Oklahoma Constitution other than handicap discrimina- article 5 §46, which “requires that tion. Likewise, the new rule set the same remedies must be appli- …the court’s forth in Pioneer leads to even cable to everyone within the same more speculation as to whether class of employment discrimina- holding in a Burk tort claimant alleging dis- tion.”16 This class of employment crimination against a small discrimination, as defined by the Pioneer potentially employer will be required to OADA17 includes race, color, reli- exhaust administrative remedies gion, sex, national origin, age and jeopardizes the since the OADA specifically handicap.18 It is on this same con- excludes small employers.26 The stitutional principle that the Okla- requirement for speculation arises because the homa Supreme Court based its facts in Atkinson were limited to opinion in Pioneer,19 finding that claimants to exhaust only handicap discrimination all employees subjected to dis- and the employer had more than crimination, regardless of the size administrative 15 employees. of their employer, are nonetheless Highlighting the uncertainty members of that general class who remedies prior to of whether claimants alleging may bring a Burk tort claim.20 discrimination other than dis- Thus, the court held that while the filing a Burk ability discrimination are re- Oklahoma Legislature can exclude quired to exhaust are two small employers from statutory tort claim. unpublished opinions from the remedies under the OADA, such U.S. District Court for the West- exclusion does not protect small ern District of Oklahoma: Maia- employers from the independent hy v. Target Corp.27 and Williams common law remedy of a Burk tort for discharge v. Convergys Corp.28 In Maiahy, Judge Heaton based upon discrimination.21 held that the plaintiff must first exhaust admin- EXHAUSTION REQUIREMENTS istrative remedies prior to asserting a Burk tort claim for age and national origin discrimina- An interesting issue in light of the Pioneer tion.29 However, in Williams, Judge Miles- decision is whether employees are required to LaGrange allowed the plaintiff to assert a Burk exhaust administrative remedies prior to bring- tort claim for sex and race discrimination with- ing a Burk tort claim for employment discrimi- out first exhausting administrative remedies.30 nation. The OADA, 25 O.S. §1901, requires Neither the Oklahoma Supreme Court nor the claimants to first exhaust administrative reme- 10th Circuit has published an opinion on the dies prior to filing a complaint for handicap issue of exhaustion of administrative remedies discrimination under the OADA. In Atkinson v. for a Burk tort claim since Atkinson and the Halliburton Co.,22 the court required the plaintiff court’s recent expansion of the Burk tort prin- to exhaust administrative remedies under ciples in Saint, Shirazi and Pioneer. §1901 as a prerequisite to filing a Burk tort claim for handicap discrimination.23 The court In taking a deeper look at the issue, the reasoned that exhaustion of administrative court’s holding in Pioneer potentially jeopar- remedies is a long standing jurisdictional dizes the requirement for claimants to exhaust requirement before resorting to the court sys- administrative remedies prior to filing a Burk tem.24 Further, the court found that §1901 tort claim. This is because Pioneer may have would be rendered “meaningless and irrele- created an inconsistency between the proce- vant” if employees were not first required to dural requirements that members of the same exhaust.25 However, the exhaustion require- class are required to follow. Under Atkinson, a ment in §1901 only applies to handicap dis- claimant alleging handicap discrimination crimination claims because the OADA does not against an employer with more than 15 employ- provide a private right of action for claims of ees is required to first exhaust administrative discrimination based on race, color, religion, remedies. However, there is no requirement for sex, national origin or age. Following the claimants alleging handicap discrimination expansion of the Burk tort principles in Saint whose employer has less than 15 employees, to and Shirazi, there has been speculation as to exhaust administrative remedies prior to assert- whether the rule in Atkinson requiring exhaus- ing a tort claim. Thus, if claimants of small tion of administrative remedies is applicable to employers are not required to first exhaust a Burk tort claimant pleading discrimination administrative remedies and claimants of larg-
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2235 er employers are required to exhaust, an incon- which the discharge of an employee is contrary to clear public policy as outlined by state constitutional, statutory or decisional law. sistency may exist among members of the same 8. In Saint v. Data Exchange Inc., 2006 OK 59, P.3d 1037, the class. This inconsistency may run afoul of the Oklahoma Supreme Court held that a Burk tort remedy was available to redress wrongful discrimination claims based on employment Oklahoma constitutional requirement for uni- discrimination. formity of remedies.31 To cure this inconsisten- 9. 2009 OK 82, ¶13, 226 P.3d 687. 10. Id. at ¶ 2. cy, the court could require all claimants to 11. Id. at ¶ 1. exhaust administrative remedies as a prerequi- 12. 1995 OK 101, 905 P.2d 223. site to filing a discrimination tort claim or over- 13. Brown v. Ford, 1995 OK 101, 905 P.2d 223. 14. 2006 OK 59, 145 P.3d 1037. turn their previous ruling in Atkinson and hold 15. 2009 OK 13, 204 P.3d 75. that claimants alleging a Burk tort for employ- 16. Id. at ¶ 12. 17. 25 O.S. 2001 §1302. ment discrimination against any size employer 18. Shirazi, 2009 OK at ¶ 12. are not required to exhaust administrative rem- 19. supra n. 6. edies. Employers are likely to argue that the 20. Id. at ¶ 11. 21. Pioneer, 2009 OK at ¶ 11. exhaustion requirement set forth in Atkinson 22. 1995 OK 104, 905 P.2d 772. applies to all claimants seeking to file a Burk 23. Id. at 777. 24. Id. at 774. tort claim for employment discrimination 25. Id. at 776. regardless of the number of employees. How- 26. 25 O.S. 2001 §1301(1). 27. 2009 WL 523110 (W.D.Okla. March 2, 2009). ever, this remains an uncertain area of the law. 28. 2009 WL 3242036 (W.D.Okla. Oct. 2, 2009). Neither Atkinson nor Pioneer addresses the con- 29. 2009 WL 523110 at *2. The court based its holding on the long- stitutional requirement of uniformity with established doctrine in Oklahoma requiring claimants to exhaust administrative remedies as a jurisdictional prerequisite to filing suit. regard to exhaustion of administrative reme- The court also found that if one class of discrimination claimants was dies.32 While it is impossible to predict the allowed to bring suit without exhausting administrative remedies this “would create a dichotomous division of discrimination remedies route the Oklahoma Supreme Court will take contrary to Art. 5 §4 of the Oklahoma Constitution.” Id. (citing with this issue, employers should be aware Kruchowski v. Weyerhaeuser Co., 2008 OK 105, 202 P.3d 144). 30. 2009 WL 3242036 at *3. The court based its decision on the 10th that the court could hold that claimants, regard- Circuit’s holding in Katzer v. Baldor Elec. Co., 969 F.2d 935, 938 (10th Cir. less of the size of the employer, are not required 1992) stating “that an employee-plaintiff may state a tort cause of to exhaust administrative remedies prior to fil- action pursuant to the public policy exception to the at-will employ- ment rule even though there are administrative remedies available to ing a Burk tort claim. the employee-plaintiff for the alleged discrimination.” 31. Okla. Const. Art. 5 §46. CONCLUSION 32. See Atkinson, supra n. 32; Pioneer Masonry, supra n. 6. The court’s decision in Smith v. Pioneer Mason- ry Inc. now subjects all employers, regardless of size, to a Burk tort claim based on discrimi- About The AuthorS nation for race, color, age, sex, religion, nation- Kimberly Lambert Love is a al origin and disability. Small employers are partner at Titus Hillis Reynolds now at risk for costly workplace discrimination Love Dickman & McCalmon. lawsuits filed by disgruntled employees. The With over 25 years of experience, statutory requirement of 15 or more employees she practices in all areas of employ- is designed to shield small employers from the ment law. She is the past chairper- high cost of such litigation. Interesting, that in son of the Labor and Employment these difficult economic times for employers, Section of the OBA and is a regu- the court chooses to overlook this important lar contributor to the OBJ. economic policy concern. As the Oklahoma Supreme Court continues to expand and rede- fine the legal principles surrounding the Burk tort, employers and litigators alike should be Shannon P. Wheeler graduated prepared for more changes that lie ahead. with highest honors from the University of Tulsa College of 1. 25 O.S. 2001 §§1101, et seq. Law in 2008 and was named 2. 42 U.S.C. §2000e, et seq. Order of the Curule Chair. She is 3. 29 U.S.C. §§621, et seq. 4. 42 U.S.C. §12101, et seq. an associate with Titus Hillis 5. See 25 O.S. 2001 §1301(1); 42 U.S.C. §2000e(b); 29 U.S.C. §630(b) Reynolds Love Dickman & (requires an employer to employ 20 or more employees); 42 U.S.C. §12111(5)(A). McCalmon and focuses her prac- 6. 1989 OK 22, 770 P.2d 24. tice in the area of employment 7. In Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24, the Oklahoma law and general civil litigation. Supreme Court established a tort claim based upon a public policy exception to the at-will termination rule in a narrow class of cases in
2236 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 You are not alone.
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2237 ANNUAL MEETING
2010 OBA Award Winners
Annual Luncheon Thursday, Nov. 18 Noon
Award of Judicial Excellence Wednesday, for excellence of character, job performance or achievement Nov. 17 while a judge and service to the bench, bar and community Law School Luncheons Judge Bryan Dixon, Oklahoma City Outstanding Senior Law Judge James H. Payne, Muskogee School Student Award OCU –Daniel Correa Liberty Bell Award OU – Christa Evans for non-lawyers or lay organizations for promoting or publicizing matters regarding the legal system TU – Philip Tinker Sherri Carrier, Tulsa Joe Stamper Distinguished Service Award Thursday, to an OBA member for long-term service Nov. 18 to the bar association or contributions to the legal profession R. Forney Sandlin, Muskogee OBA/CLE Plenary Session Alma Wilson Award 8:50 a.m. for an OBA member who has made a significant contribution Earl Sneed Award to improving the lives of Oklahoma children for outstanding continuing Judge C. William Stratton, Lawton legal education contributions Justice John F. Reif, Oklahoma City
2238 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Neil E. Bogan John E. Shipp Award for Ethics Professionalism Award to an OBA member who has truly exemplified the ethics of the legal profession either by 1) acting in to an OBA member practicing 10 years or more accordance with the highest standards in the face of who for conduct, honesty, integrity and courtesy best pressure to do otherwise or 2) by serving as a role represents the highest standards of the legal profession model for ethics to the other members of the profession R. Clark Musser, Oklahoma City Retired Judge Milton Craig, Chandler
General Assembly Friday, Nov. 19 9 a.m. Trailblazer Award Hicks Epton Law Outstanding Service to an OBA member or members Day Award to the Public Award who by their significant, for individuals or organizations for significant community service unique visionary efforts have for noteworthy Law Day activities by an OBA member had a profound impact upon our profession and/or community Comanche County Richard McKnight, Enid and in doing so have blazed a Bar Association trail for others to follow Award for Golden Gavel Award Reggie Whitten, Outstanding Oklahoma City for OBA Committees and Sections Pro Bono Service performing with a high degree Outstanding County of excellence by an OBA member Bar Association OBA Family Law Section Ana Basora-Walker, Lawton Award Jim Proszek and Steve Soule, Outstanding Young Tulsa for meritorious efforts Lawyer Award and activities Maurice Merrill for a member of the OBA Young Muskogee County Lawyers Division for service to Golden Quill Award Bar Association the profession for best Oklahoma Doris Gruntmeir, Muskogee Bar Journal article Richard Rose, Oklahoma City Klint A. Cowan, Oklahoma City Micheal Salem, Norman
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2239 ANNUAL MEETING
2010 House of Delegates Delegate certification should be sent to OBA Executive Director John Morris Williams in order for names to appear in print in the bar journal and to be included in the House of Delegates agenda book. COUNTY DELEGATE ALTERNATE
ADAIR ...... Jeff Jones ...... Judge Jeff Payton Alfalfa ...... Marcus Jungman ...... Kyle Hadwiger Atoka ...... Beaver ...... Todd Trippet...... Jerry L. Venable Beckham ...... Chip Eeds Jr...... Brian Henderson Blaine ...... Daniel G. Webber ...... F. Douglas Shirley Bryan ...... Pat L. Phelps ...... Matt B. Mickle Caddo ...... Canadian ...... A. Gabriel Bass ...... Michael D. Denton Jr. Suzanne Heggy ...... Emily J. Hufnagel W. Mark Hixson Nathan D. Richter Carter ...... Michael C. Mordy ...... Judge Thomas K. Baldwin Judge Thomas S. Walker ...... John S. Veazey Cherokee ...... N. Cheryl Hamby Jerry S. Moore Choctaw ...... J. Frank Wolf III...... Alan M. Perry Cimarron ...... Stanley Ed Manske ...... Ronald L. Kincannon Cleveland ...... Holly R. Iker ...... Judge Michael D. Tupper Michael D. Johnson ...... Blake Virgin Jr. Don Pope ...... R. Blaine Nice Jr. Judge Lori M. Walkley...... Craig Sutter Micheal C. Salem...... James E. Pence Peggy Stockwell ...... Cindee Pichot Gary A. Rife...... David E. Ponder Sandee Coogan ...... John H. Sparks David A. Poarch Jr...... David Swank Dave Stockwell ...... Richard H. Wall Henry N. Herbst...... Roger O. Housley Debra D. Loeffelholz...... Amy Pepper Golda R. Long...... Christal D. Adair Judge Stephen W. Bonner ...... Gregory T. Tontz Richard D. Stevens...... Tyson T. Stanek Janis Grant-Johnson ...... J.D. Loftis Jan Meadows ...... Cheryl Farnsworth Robert L. Pendarvis ...... Jamie J. McGraw Ben Odom...... Rebekah C. Taylor Coal ...... Trae Gray ...... Judge D. Clay Mowdy Comanche ...... Nathan M. Johnson ...... Shon T. Erwin Irma J. Newburn ...... David J. Kanehl Mark R. Stoneman ...... Lisa E. Shaw
2240 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Cotton...... Kathleen Flanagan...... Michael C. Flanagan Craig...... Leonard M. Logan, IV ...... Kent Ryals Creek...... Charles D. Watson Jr...... Laura S. Farris Judge Richard A. Woolery ...... J.V. Frazier Custer...... Richard J. Phillips ...... Dennis A. Smith Delaware...... Lee Griffin Eberle ...... Kay Lyn Beauchamp Dewey...... Judge Rick M. Bozarth...... Julie D. Strong Ellis ...... Laurie E. Hays ...... Judge Joe L. Jackson Garfield...... Michael C. Bigheart...... Robert R. Faulk Tim E. DeClerck...... Kaleb K. Hennigh Douglas L. Jackson...... Randy J. Long Garvin...... Daniel T. Sprouse ...... John A. Blake Grady...... Ryland L. Rivas Grant...... Judge Jack D. Hammontree Jr...... Steven A. Young Greer...... Judge Danny R. Deaver...... Eric G. Yarborough Harmon ...... Harper...... Judge G. Wayne Olmstead...... M. Marcus Holcomb Haskell ...... Hughes ...... Robert L. Irby...... Candice M. Irby Jackson...... John H. Weigel ...... John M. Wampler Jefferson...... Carrie E. Hixon...... Phillip R. Scott Johnston...... Dustin P. Rowe ...... Laura J. Corbin Kay...... Brian T. Hermanson ...... Jacob W. Biby Rick Johnson ...... Michael P. Martin Kingfisher...... E. Edd Pritchett ...... Judge Susie Pritchett Kiowa ...... Thomas W. Talley Latimer ...... LeFlore ...... Lincoln...... Logan ...... Jeff Hirzel ...... Megan Morgan Love ...... Kenneth L. Delashaw Jr...... Richard A. Cochran Jr. Major ...... Mitchell A. Hallren ...... John W. McCue II Marshall ...... Judge Richard A. Miller ...... Jeffrey S. Landgraf Mayes ...... Randall Elliott ...... Larry J. Paden McClain ...... Sara L. Bonnell...... Suzanne Woodrow Snell McCurtain ...... Judge Michael D. DeBerry ...... Jerry L. McCombs McIntosh ...... C. Brendon Bridges ...... Brecken A. Wagner Murray ...... Phil S. Hurst...... Judge John H. Scaggs Muskogee ...... Doris L. Gruntmeir Roy D. Tucker Betty O. Williams Noble ...... Nowata ...... Okfuskee ...... Jeremy T. Pittman...... Bruce A. Coker Oklahoma ...... Mack K. Martin ...... Judge E. Bay Mitchell III John B. Heatly ...... Kieran D. Maye Jr. Laura H. McConnell-Corbyn...... James R. Webb Judge Timothy D. DeGiusti ...... W. Todd Blasdel Judge Glenn M. Jones ...... Judge Barry L. Hafar James A. Kirk ...... John H. Edwards III Larry M. Spears ...... Angela Ailles Bahm Benjamin J. Butts ...... David W. VanMeter
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2241 David W. Kisner ...... M. Courtney Briggs J. David Ogle ...... Judge Page P. Morgan Michael A. Rubenstein ...... Evan B. Gatewood Charles F. Alden III ...... Brandon P. Long Michael W. Brewer ...... Tim Rhodes Judge Bryan C. Dixon ...... Linda L. Samuel-Jaha Judge Vicki L. Robertson ...... Steven T. Horton Judge Barbara G. Swinton ...... Daniel J. Morgan David B. Donchin ...... Leanne T. Burnett Judy Hamilton Morse ...... Richard L. Rose Judge Lisa K. Hammond ...... Amy S. Fischer Reggie N. Whitten ...... J. Kelly Work G. Calvin Sharpe ...... Celeste T. Johnson Daniel G. Webber Jr...... Collin R. Walke Michael L. Mullins ...... Jeff L. Todd Don G. Holladay ...... Janna Dunagan Hall Judge J. Lynne McGuire ...... Jeffrey E. Tate Nancy S. Parrott ...... Maurice G. Woods II D. Lynn Babb ...... Daniel G. Couch Amy Jo Pierce ...... Lawrence E. Schneiter IV Leslie L. Lynch ...... Cherish K. Ralls Bradley A. Gungoll ...... Dawn M. Rahme Okmulgee...... Javier Ramirez ...... Lou Ann Moudy Osage...... Jesse J. Worten III Ottawa...... Charles W. Chesnut ...... John M. Weedn Pawnee...... Jeff Steven Jones ...... Pat Pickerill Payne ...... Drew M. Ihrig ...... David W. Bryan Brenda Nipp ...... Jill M. Ochs-Tontz Susan C. Worthington ...... Cory T. Williams Pittsburg...... Mindy M. Beare ...... Trevor J. Furlong Ellen C. Quinton ...... Michael D. Parks Pontotoc...... J. Wes Billingsley ...... Preston S. Draper T. Walter Newmaster ...... Ash E. Mayfield Pottawatomie ...... James T. Stuart ...... Matthew L. Thomas Joseph M. Vorndran ...... George J. Wright Pushmataha ...... James T. Branam ...... Jacqueline Jo Perrin Roger Mills ...... Kelly Tice Roberts ...... Judge F. Pat VerSteeg Rogers ...... C. Noah Sears Melinda D. Wantland Seminole...... R. Victor Kennemer III...... William D. Huser Sequoyah...... Kent S. Ghahremani ...... John T. Cripps III Stephens...... Texas...... Douglas D. Dale ...... Cory B. Hicks Tillman...... Clyde H. Amyx II...... John P. Kent Tulsa ...... Robert S. Farris ...... Fred H. Demier Judge Charles R. Hogshead ...... Gale G. Allison Leonard I. Pataki ...... Michael Scott Ashworth Renee DeMoss ...... Kenneth G. Miles William G. LaSorsa ...... Kimberly K. Moore-Waite Paul D. Brunton ...... David M. Thornton Jr. C. Michael Zacharias ...... Amber N. Peckio Garrett Kenneth L. Brune ...... Shelton L. Benedict
2242 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Bruce A. McKenna ...... Jeremy K. Ward Tony W. Haynie ...... William “Bill” Sanders Paul B. Naylor ...... Michael “Mike” Esmond Vivian C. Hale ...... Nathan Harley Mayenschein Jack L. Brown ...... Martha Rupp Carter Catherine M. Cullem ...... Robert B. Sartin Molly A. Aspan ...... John R. Woodard III Patrick D. O’Connor ...... D. Kenyon Williams Jr. D. Faith Orlowski ...... Georgenia A. Van Tuyl James R. Gotwals ...... Judge E. Mark Barcus James C. Milton ...... Prof. Martin A. Frey Ron Main Phil Frazier Julie A. Evans John T. Hall Robert P. Redemann Trisha L. Archer Christopher L. Camp Kimberly Hays Melissa F. Cornell Blake R. Givens Judge Millie E. Otey Wagoner...... Judge Douglas A. Kirkley Washington...... Gaylene F. McCallum ...... Remona K. Colson Michael A. Shiflet ...... Linda S. Thomas Washita...... Judge Christopher S. Kelly ...... Skye D. Shephard-Wood Woods ...... Jeremy T. Bays ...... Jesse D. Kline Woodward ...... Bryce L. Hodgden ...... Christopher M. Boring
JUDICIAL CONFERENCE DELEGATE ALTERNATE Dist. Judge ...... Judge Thomas P. Thornbrugh ...... Judge John M. Kane IV Assoc. Dist. Judge ...... Judge Mickey J. Hadwiger ...... Judge Mark A. Moore
PAST PRESIDENTS Sidney George Dunagan Jon K. Parsley Bob Warren Rabon J. William Conger Dean Andrew M. Coats Stephen D. Beam Robert Forney Sandlin William Robert Grimm Michael Burrage Michael Devere Evans Anthony M. Massad Harry Arthur Woods Jr. Burck Bailey Melissa Griner DeLacerda David K. Petty Gary Carl Clark James R. Eagleton Charles Donald Neal Jr. Judge Paul Miner Vassar M. Joe Crosthwait Jr. William George Paul Douglas W. Sanders Jr. Clarence D. Northcutt John A. Gaberino Jr. Judge Thomas R. Brett William J. Baker Winfrey David Houston James Duke Logan
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2243 Program of Events Crowne Plaza Hotel, Tulsa u Nov. 17-19, 2010
All events will be held at the Crowne Plaza Hotel unless otherwise specified. Submit meeting room and hospitality suite requests to Craig Combs at [email protected]. Submit meeting program information to Melissa Brown at [email protected].
Tuesday, Nov. 16 OU College of Law Alumni Reception and Luncheon...... 11:15 a.m. – 1:30 p.m. OBA Registration...... 4 – 7 p.m. OCU School of Law Oklahoma Fellows of the Alumni Reception American Bar Foundation...... 7 – 9 p.m. and Luncheon...... 11:45 a.m. – 2 p.m.
TU College of Law Wednesday, Nov. 17 Alumni Reception and Luncheon...... Noon – 2 p.m.
OBA Registration and Hospitality...... 8 a.m. – 5 p.m. Criminal Law Section Luncheon...... Noon – 2 p.m.
Oklahoma Fellows of the American Bar Foundation...... 8:30 – 9:30 a.m. OBA Board of Governors Meeting...... 2 – 4 p.m.
Board of Bar Examiners..... 8:30 a.m. – Noon Indian Law Section...... 2 – 4 p.m.
OBA/CLE Seminar Registration...... 8:30 – 9 a.m. Friends of Bill W...... 5 – 6 p.m.
OBA/CLE Seminar...... 9 a.m. – 5 p.m. Law Day Committee...... 5 – 6:30 p.m. See seminar program for speakers and complete agenda President’s Reception...... 7 – 9:30 p.m. Criminal Law (Free for everyone with How Good Lawyers Survive Bad Times meeting registration) Family Law Nuts & Bolts
2244 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 OBA Annual Luncheon For Members, Spouses Thursday, Nov. 18 And Guests ...... Noon – 2 p.m. ($30 with meeting registration) Legal Aid Services Pro Bono Breakfast...... 7:30 – 8:45 a.m. Featuring:
American College of Trust and Estate Counsel...... 8 – 9:30 a.m. Michael Wallis Historian, Biographer & Author American College of Tulsa Trial Lawyers...... 8 – 9:30 a.m.
Professionalism Committee...... 8 – 9:30 a.m.
Michael Wallis Book Signing...... 2 – 3 p.m. OBA Registration (Books available for purchase) and Hospitality...... 8 a.m. – 5 p.m.
Diversity Committee Forum...... 2 – 4 p.m. Oklahoma Association for Justice Seminar...... 8:30 a.m. – 4 p.m. Council on Judicial Complaints...... 2 – 4 p.m. Credentials Committee...... 9 – 9:30 a.m.
Real Property Section...... 2 – 3:30 p.m. Legal Intern Committee...... 9 – 10:30 a.m. The Incarceration of Women in Oklahoma OBA/CLE Plenary Session...... 9 a.m. – Noon Seminar...... 2:15 – 3:30 p.m. (Annual Meeting registration Family Law Section...... 9 a.m. – 5 p.m. not required for admission)
Estate Planning, Probate Oklahoma Bar Foundation and Trust Section...... 10 – 11:45 a.m. Board of Trustees...... 3 – 5 p.m.
OBA Rules and Board of Editors...... 3:30 – 5 p.m. By-Laws Committee...... 10 – 10:30 a.m. OBA/CLE: Lives in MCLE Commission...... 10:30 – 11:45 a.m. Balance: Lawyers Helping Lawyers...... 3:45 – 5:15 p.m. (Annual Meeting registration OBA Resolutions not required for admission) Committee...... 10:45 a.m. – Noon Friends of Bill W...... 5 – 6 p.m.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2245 Oklahoma Bar Foundation Fellows Reception...... 6 – 7:30 p.m.
Health Law Section...... 6 – 8:30 p.m.
Young Lawyers Division Board of Directors Annual Meeting...... 6:30 – 7 p.m.
Young Lawyers Division President’s Reception...... 7 – 9 p.m.
Music through the Years Featuring Jessica Hunt...... 8 – 9 p.m.
Casino Night...... 9 p.m. – Midnight (Free for everyone with meeting registration) Prize drawing at end of the event Sponsor: OBA Young Lawyers Division
Friday, Nov. 19
President’s Breakfast...... 7:30 – 9 a.m. ($20 with meeting registration)
OBA Registration and Hospitality...... 8 – 10:30 a.m.
Oklahoma Bar Association General Assembly...... 9 – 10 a.m. Daniel Rodriguez Minerva House Drysdale Regents Chair in Law Oklahoma Bar Association University of Texas School of Law
House of Delegates...... 10 a.m. – Noon “Are State Constitutions Fundamentally Election of Officers & Members Progressive Documents (and Why of the Board of Governors Should We Care)?” Approval of Title Examination Standards THURSDAY, OCTOBER 21, 2010 Resolutions 5 p.m. Public Lecture OKLAHOMA CITY UNIVERSITY SCHOOL OF L AW Homsey Family Moot Courtroom Sarkeys Law Center Ballot Committee...... 11 a.m. – Noon N.W. 23rd and Kentucky For more information call: Okla. City, OK. 73106 (405) 208-5335 | http://law.okcu.edu/ Free and open to the public.
2246 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 OBA/CLE Annual Meeting 2010 Crowne Plaza Hotel, Tulsa November 17, 2010 DAY ONE Family Law Criminal Law How Good Lawyers Nuts and Bolts Survive Bad Times
Promenade A Promenade B Promenade C Promenade D
WEDNESDAY Program Planner/ Program Planner/ Program Planner/ Program Planner/ Registration Moderator Moderator Moderator Moderator 8 - 9 a.m. Lori Pirraglia Ben Brown Jim Calloway Collin Walke Charles Sifers
Session 1 Client Intake: Immigration & 50 Tips for Administrative Law 9 - 9:50 a.m. Starting Out on the Criminal Law: Tough Times Trials: We Aren’t in Right Foot/Making A Practical Explanation Kansas Anymore Good Client Choices in Light of Jim Calloway Padilla v. Kentucky Gary Payne Jon Ford Joan Lopez Campbell Cooke
Temporary Order The Practical & Advance Marketing on a Get Your Ethics! Hearing: Exhibits Use of the Science of Budget (ethics) Session 2 Needed and Preparing Eyewitness Identification Mark A. Robertson Gina Hendryx 10 - 10:50 a.m. Your Clients in the Courtroom PART I Phil Tucker Professor Gary Wells Ph.D.
Session 3 Finding Expert The Practical & Advance The Thrifty Lawyer Your Solo 11 - 11:50 a.m. Witnesses - Business Use of the Science of Shopping List Valuators and Mental Eyewitness Identification L. Michele Nelson Health Professionals in the Courtroom Jim Calloway PART 2 TBD Professor Gary Wells Ph.D.
12-2 p.m. LUNCH (On your own)
Session 4 Dissolution Criminal Law Free, Cheap and Easy Your Job as a 2 -2:50 p.m. Depositions: Taking Motions Practice Technology Tools Criminal Law and Defending Attorney TBD Jim Calloway Donelle Ratheal Garvin Isaacs
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2247 OBA/CLE Annual Meeting 2010
Family Law Criminal Law How Good Lawyers Nuts and Bolts cont’d Survive Bad Times
Session 5 Trial Exhibits and Representing Persons Your Law Firm Bankrupty 3 - 3:50 p.m. Witness: Choosing Charged with Driving Finances Chapter 7: The Ins and Preparation Under the Influence and Outs TBD Kimberly Hays Josh D. Lee Jennifer Kirkpatrick Charles Sifers
Session 6 The End/Beginning: Working with Cutting Costs & Coralling Mastering the Art Drafting the Decree/ the Media Clients without of the Deposition 4 - 4:50 p.m. Pre-Nups for Compromising Ethics New Beginnings Moderator (ethics) Ronald Walker Doug Dodd Bill LaSorsa Gina Hendryx Panel Travis Pickens TBD
4:50 p.m. ADJOURN
November 18, 2010 DAY TWO THURSDAY Topic Program Moderator: Registration Judge Thomas C. Gillert, District Judge, Tulsa 8:30 - 9 a.m. 9 a.m. Picking Cotton: Our Speakers: Memoir of Injustice and Jennifer Thompson-Cannino, Salem, NC Redemption Ronald Cotton, Mebane, NC
9:50 a.m. The Science of Speaker: Eyewitness Identification Gary D. Wells, Ph.D., Professor of Psychology, Iowa State University, Ames
10:40 a.m. Break
10:50-11:50 Eyewitness Identification Panelists: a.m. in Oklahoma Michael Huff, Tulsa Police Department, Homicide Division, Tulsa Douglas E. Drummond, Tulsa County First Assistant District Attorney, Tulsa Stephen Kunzweiler, Assistant District Attorney, Tulsa Jennifer Thompson-Cannino Ronald Cotton Gary Wells, Ph.D.
2248 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 2010 Registration Form Please complete a separate form for each registrant. Name ______E-mail ______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 Fellow q OBF Past President q OBA Past President q YLD Officer q YLD Board Member q YLD Past President q Board of Bar Examiner q 2010 OBA Award Winner q Delegate q Alternate q County Bar President: County ______
q YES! Register me for the 2010 Annual Meeting, November 17, 18 & 19, in Tulsa. Events will be held at the Crowne Plaza Hotel. Registration fee includes continental breakfast in hospitality area, President’s Recep- tion ticket(s), convention gift, Vendors Expo, Music through the Years and Viva Las Vegas Casino Night. q MEMBER: q $50 through Nov. 3; $75 after Nov. 3...... $ ______q NEW MEMBER (Admitted after Jan. 1, 2010): q Free through Nov. 3; $15 after Nov. 3...... $ ______q LAW STUDENT DIV. q $25 through Nov. 3; $35 after Nov. 3...... $ ______I will be attending/participating in the following ticketed events in addition to my registration fee for Annual Meeting: q WED. & THURS.: CLE Multitrack ( ___ [0 or 1] ticket @ $150 through Nov. 3; $175 after Nov. 3; and Plenary $50 for new members through Nov. 3, $75 after Nov. 3) ...... $ ______q WEDNESDAY: CLE Multitrack only ($125/$150)...... $ ______q THURSDAY: CLE Plenary only ( ___ [0 or 1] ticket @ $75 through Nov. 3; $100 after Nov. 3; $25 for new members through Nov. 3, $50 after Nov. 3)...... $ ______q THURSDAY: Annual Luncheon ( ___ number of tickets @ $30 each)...... $ ______q FRIDAY: President’s Breakfast ( ___ number of tickets @ $20 each)...... $ ______q Please check here, if under the Americans with Disabilities Act you require specific aids or services during your visit to the OBA Annual Meeting. q Audio q Visual q Mobile (Attach a written description of your needs.) I will be attending the following ticketed events that do NOT require Annual Meeting registration: q WEDNESDAY: Law School Luncheon – (check one) q OCU q OU q TU ( ___ number of tickets @ $30 each...... $ ______TOTAL $ ______I will be attending the free event(s) below that do(es) NOT require Annual Meeting registration: q Lives in Balance: Lawyers Helping Lawyers PAYMENT OPTIONS: q Incarceration of Women in Oklahoma q Check enclosed: Payable to Okla. Bar Association THREE WAYS TO REGISTER Credit card: q VISA q Mastercard q Discover q American Express n MAIL this registration form with payment Card #______or credit card info to: OBA Annual Meeting Credit Card CVV/CVC # (on back of card)______P.O. Box 53036 Okla. City, OK 73152 Exp. Date______n FAX this registration form with credit card Authorized Signature information to: (405) 416-7092. ______n ONLINE at www.okbar.org HOTEL ACCOMMODATIONS: n CANCELLATION POLICY Full refunds Fees do not include hotel accommodations. For reservations contact: Crowne Plaza will be given through Nov. 10. No Tulsa Hotel at (800) 227-6963. Call by Oct. 26 and mention hotel code: Oklahoma refunds will be issued after that date. Bar Association 2010 Convention for a special room rate of $105 per night. For hos- pitality suites, contact Craig Combs at (405) 416-7040 or e-mail: [email protected]. Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2249 ANNUAL MEETING
House of Delegates
Thank you to the County Bar Presidents of: Adair, Alfalfa, Beaver, Beckham, Blaine, Bryan, In accordance with the Bylaws of the Okla- Canadian, Carter, Cherokee, Choctaw, Cimarron , homa Bar Association (5 OS, Ch. 1, App. 2), Cleveland**, Coal, Comanche, Cotton, Craig, “The House of Delegates shall be composed of Creek, Custer, delaware, dewey, Ellis, garfield, one delegate or alternate from each County of Garvin, grady, grant, greer, Harper, Hughes, the State, who shall be an active or senior mem- Jackson, Jefferson, Johnston, Kay, Kingfisher, ber of the Bar of such County, as certified by the Kiowa, Logan, Love, Major, Marshall, Mayes, Executive Director at the opening of the annual McClain, McCurtain, McIntosh, Murray, Musk- meeting; providing that each County where the ogee, Okfuskee, Oklahoma, Okmulgee, Osage, active or senior resident members of the Bar Ottawa**, Pawnee, Payne, Pittsburg, Pontotoc, exceed fifty shall be entitled to one additional Pottawatomie, Pushmataha, Rogers, Roger Mills, delegate or alternate for each additional fifty Seminole, Sequoyah, Texas, Tillman, Tulsa, Wag- active or senior members or major fraction oner, Washington, Washita, Woods and Wood- thereof. In the absence of the elected delegate(s), ward counties for submitting your delegate and the alternate(s) shall be certified to vote in the alternate selections for the upcoming OBA Annual stead of the delegate. In no event shall any Meeting. (**Reported, awaiting election) 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 “A member shall be deemed to be a resident, the offices of the Oklahoma Bar Association. … of the County in which is located his or her Please help us by sending the names of your mailing address for the Journal of the Associa- delegates and alternates now. In order to have tion.” your delegates/alternates certified, mail or fax delegate certifications to OBA Executive Director John Morris Williams, P.O. Box 53036, Oklahoma City, OK 73152-3036, or Fax: (405) 416-7001. Atoka LeFlore Caddo Lincoln Harmon Noble Haskell Nowata Latimer Stephens
2250 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 BAR NEWS 2011 OBA Board of Governors Vacancies Nominating Petition Deadline was 5 p.m. Friday, Sept. 17, 2010 OFFICERS Summary of Nominations Rules Not less than 60 days prior to the Annual Meeting, President-Elect Current: Deborah Reheard, Eufaula 25 or more voting members of the OBA within the Ms. Reheard automatically becomes OBA Supreme Court Judicial District from which the president Jan. 1, 2011 member of the Board of Governors is to be elected (One-year term: 2011) that year, shall file with the Executive Director, a Nominee: Cathy Christensen, Oklahoma City signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Vice President Governors for and from such Judicial District, or Current: Mack K. Martin, Oklahoma City one or more County Bar Associations within the (One-year term: 2011) Judicial District may file a nominating resolution Nominee: Reta M. Strubhar, Piedmont nominating such a candidate. Not less than 60 days prior to the Annual BOARD OF GOVERNORS Meeting, 50 or more voting members of the OBA Supreme Court Judicial District Two from any or all Judicial Districts shall file with the Current: Jerry L. McCombs, Idabel Executive Director, a signed petition nominating a Atoka, Bryan, Choctaw, Haskell, Johnston, candidate to the office of Member-At-Large on Latimer, LeFlore, McCurtain, McIntosh, Marshall, the Board of Governors, or three or more County Pittsburg, Pushmataha and Sequoyah Counties Bars may file appropriate resolutions nominating a (Three-year term: 2011-2013) candidate for this office. Nominee: Gerald C. Dennis, Antlers Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of Supreme Court Judicial District Eight the Association may file with the Executive Direc- Current: Jim T. Stuart, Shawnee tor a signed petition nominating a candidate for Coal, Hughes, Lincoln, Logan, Noble, the office of President-Elect or Vice President or Okfuskee, Payne, Pontotoc, Pottawatomie three or more County Bar Associations may file and Seminole Counties appropriate resolutions nominating a candidate (Three-year term: 2011-2013) for the office. Nominee: Scott Pappas, Stillwater Nominee: Gregg W. Luther, Shawnee If no one has filed for one of the vacancies, nominations to any of the above offices shall be Supreme Court Judicial District Nine received from the House of Delegates on a peti- Current: W. Mark Hixson, Yukon tion signed by not less than 30 delegates certified Caddo, Canadian, Comanche, Cotton, Greer, to and in attendance at the session at which the Harmon, Jackson, Kiowa and Tillman Counties election is held. (Three-year term: 2011-2013) See Article II and Article III of OBA Bylaws for Nominee: O. Christopher Meyers, Lawton complete information regarding offices, positions, Member-At-Large nominations and election procedure. Current: Jack L. Brown, Tulsa Vacant positions will be filled at the OBA Annual (Three-year term: 2011-2013) Meeting Nov. 17-19. Terms of the present OBA Nominee: Renée DeMoss, Tulsa officers and governors listed will terminate Dec. Nominee: Kimberly K. Hays, Tulsa 31, 2010. Nomination and resolution forms can be Nominee: Mack K. Martin, Oklahoma City found at www.okbar.org.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2251 BAR NEWS
OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)
BOARD OF GOVERNORS Member-at-Large Mack K. Martin, Oklahoma City Nominating Petitions have been filed nominat- ing Mack K. Martin for election of Member-at- Large of the Oklahoma Bar Association Board of governors for a three-year term beginning January 1, 2011. A total of 127 signatures appear on the petitions.
2252 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 OBA NEWS
OBA Creates Justice Commission
The OBA Board of Governors, at its Sept. 24 WHEREAS, it is important for both the crim- meeting, approved a resolution creating the inal justice stakeholders and the citizens of Oklahoma Justice Commission, which will be Oklahoma to understand why these individu- dedicated to enhancing the reliability and accu- als were wrongfully convicted and how wrong- racy of convictions. Committee members will ful convictions may be avoided in the future; represent a wide range of people from the and criminal justice community including district WHEREAS, thorough, unbiased study and attorneys from urban and rural areas, defense review in other states has resulted in recom- attorneys, judges, law enforcement officers, mendations for significant reforms to the crim- legal scholars, legislators, public defenders, inal justice system in order to avoid wrongful forensic science experts and victim advocates. convictions, and Oklahoma has not engaged in Below is the resolution in its entirety that pro- any such review of the state’s criminal justice vides complete details. system; now, therefore, be it OKLAHOMA BAR ASSOCIATION RESOLVED, by the Oklahoma Bar Association, RESOLUTION in recognition of the need to provide a continu- ESTABLISHING ing forum for education and dialogue regard- THE OKLAHOMA JUSTICE ing the causes of wrongful conviction of the COMMISSION: innocent and, where appropriate, to recom- mend and assist in the implementation of jus- A Commission Dedicated to Enhancing the tice system enhancements, which will increase Reliability & Accuracy of Convictions the reliability of convictions in Oklahoma, WHEREAS, 258 individuals in the United The Oklahoma Bar Association hereby States have been exonerated through post-con- establishes the Oklahoma Justice viction DNA testing, 17 of whom were sen- Commission: A Commission Dedicated to tenced to death, and the average length of time Enhancing the Reliability & Accuracy served by these exonerees being 13 years; of Convictions. WHEREAS, 10 individuals have been exon- OKLAHOMA JUSTICE COMMISSION erated in Oklahoma through post-conviction DNA testing, four of whom were in prison for SECTION 1: STRUCTURE AND murder; COMPOSITION OF THE COMMISSION WHEREAS, criminologists have concluded The structure and composition of the Com- that biological evidence is unavailable in the mission shall be: vast majority of criminal cases and that conse- 1.1. Commission Membership and Officers: quently wrongful convictions revealed by DNA testing represent a small proportion of wrong- The Commission shall consist of as many ful convictions overall; members as the Chair deems necessary. The officers of the Commission shall include at WHEREAS, the incarceration of an innocent least a Chair and a Secretary. The Chair of the person not only works an injustice against that Commission shall be the President of the OBA individual, but also harms society in that the or his or her designee. The remaining officers real perpetrator of a crime remains free and shall be considered upon recommendation of able to commit additional criminal acts; the Chair and shall be elected by a majority of the Commission members.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2253 1.2. Selection and Term of Members: 2.2. Implicated Procedures: The Chair shall appoint the Commission’s The Commission shall seek to identify law other members in his or her discretion, but rep- enforcement, forensic, trial and judicial proce- resentation shall include at least one member dures, and attorney techniques, which may from each of the following constituencies: (1) cause or increase the likelihood of the convic- district attorneys (both a representative from tion of the innocent. urban and rural areas), (2) defense attorneys, 2.3. Remedial Strategies and Procedures: (3) trial court judges, (4) appellate court judges, (5) police (both a representative from urban The Commission shall work to create reme- and rural areas), (6) sheriffs, (7) legal scholars, dial strategies designed to reduce or lessen the (8) legislators, (9) the office of the Attorney possibility of conviction of the innocent, includ- General, (10) the OSBI, (11) victim advocates, ing, but not limited to, procedural and educa- (12) public defenders, (13) a CLEET (Council tional remedies, training of criminal justice on Law Enforcement Education and Training) practitioners, and the development of proce- representative, (14) an expert or liaison from dures to identify, expedite the release of, and the innocence community, (15) a forensic sci- rightfully compensate persons wrongly con- ence consultant or expert, and (16) a member of victed. the general public. Additional members shall 2.4. Implementation Plans: be appointed by the Chair as necessary, and at least one of the members on the Commission The Commission shall develop plans to shall have litigation experience. implement remedial strategies, such plans to include, but not be limited to, analysis of The members of the Commission shall serve implementation expenses, ongoing costs, pos- a term of two years. Initial terms shall begin at sible savings and the impact on the criminal the time the representatives are selected, which justice system for each potential solution; pro- shall take place within six months of the reso- jected effectiveness of proposed plans, and any lution’s passage. potential negative impact of proposed plans on SECTION 2: RESPONSIBILITIES OF the conviction of guilty persons. THE COMMISSION The Commission shall also perform a cost The Commission’s major responsibilities analysis of wrongful convictions and their shall include raising awareness of the issues effect upon the State. surrounding wrongful convictions and study- SECTION 3: ADDITIONAL ing and providing recommendations regarding RESPONSIBILITIES OF the following: THE COMMISSION 2.1. Causes of Conviction of the Innocent: The Commission shall provide periodic The Commission shall seek to research and interim reports of its findings and recommen- identify the common causes of conviction of the dations as necessary and annual reports no innocent, both nationally and in Oklahoma. later than 31 December each year to the Okla- These include, but are not limited to, (1) eyewit- homa Bar Association Board of Governors. ness misidentification, (2) unvalidated or improp- This Resolution shall be promulgated by er forensics, (3) false confessions or admissions, publication in the Oklahoma Bar Journal and the (4) forensic science misconduct, (5) government OBA’s website (www.okbar.org). misconduct, (6) incentivized witnesses, and (7) inadequate or improper lawyering. Adopted by the OBA Board of governors this the 24th day of September, 2010.
2254 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Volunteers Critical to OBA Success understand that life is hectic, and you’re busy making a living at practicing law. I’m a small town lawyer; I know the challenges of making time for volunteer work. But your association needs you. I It’s important that we have new people every year take an interest in the many areas in which we try to make a difference. Look at the list below, there’s got to be one that’s worth your time. Most meetings utilize videoconference, so if you are located near Tulsa, you are spared the travel time with a connection to the bar center in Oklahoma City. I’ve got some exciting plans for next year — so I hope I can count on you to get involved. The easiest way to sign up is online at www.okbar.org. Other sign-up options are to complete this form and either fax or mail it to the OBA. I need to hear from you by Dec. 1, 2010, so I can begin committee appointments for 2011.
Deborah Reheard, President-Elect –––––––––––––––––––––––––––––––– Standing Committees –––––––––––––––––––––––––––––––– • Access to Justice • Group Insurance • Paralegal • Awards • Law Day • Professionalism • Bar Association Technology • Law-related Education • Rules of Professional • Bar Center Facilities • Law Schools Conduct • Bench and Bar • Lawyers Helping Lawyers • Solo and Small Firm • Civil Procedure Assistance Program Conference Planning • Communications • Lawyers with Physical • Strategic Planning • Disaster Response Challenges • Uniform Laws and Relief • Legal Intern • Women in Law • Diversity • Legislative Monitoring • Work/Life Balance • Evidence Code • Member Services
Note: No need to sign up again if your current term has not expired. Check www.okbar.org/members/committees/ for terms
Please Type or Print Name ______Telephone ______Address ______OBA # ______City ______State/Zip______FAX ______E-mail ______
Committee Name Have you ever served If so, when? 1st Choice ______on this committee? How long? q q ______2nd Choice ______Yes No q Yes q No ______3rd Choice ______q Yes q No ______q Please assign me to only one committee. q I am willing to serve on (two or three - circle one) committees. Besides committee work, I am interested in the following area(s): ______Mail: Deborah Reheard, c/o OBA, P.O. Box 53036, Oklahoma City, OK 73152 Fax: (405) 416-7001
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2255 WOMEN IN LAW COMMITTEE Five Women Honored with Mona Lambird Spotlight Awards By Deborah Bruce
Since 1996 the Spotlight vice president of human resourc- Advocate of the Year and in Awards have been given annu- es with Transok. In 1997, Judge 2009 was honored by the South- ally to five women who have Barnes was the first woman to western Oklahoma State Uni- distinguished themselves in the be named in-house counsel versity chapter of the American legal profession and who have for ONEOK in Tulsa. She has Association of University lighted the way for other chaired the Oklahoma Board of Women. She currently serves on women. In 1998 the award was Bar Examiners, OBA Mineral the OBA Clients’ Security Fund named to honor the late Mona Committee, Women in Law Salyer Lambird, the first woman Committee, Solo and Small Firm president of the Oklahoma Bar Planning Committee and the Association, and one of the Technology Task Force. She award’s first recipients. served on the OBA Board of The awards are sponsored by the OBA Women in Law Com- mittee and were presented at the Women in Law Conference luncheon on Sept. 30 in Tulsa. Each year all previous winners nominate and select the current year’s recipients. A plaque bear- ing the names of all recipients hangs at the Oklahoma Bar Center in Oklahoma City. Law Section and Tulsa County The 2010 Mona Salyer Lambird Bar Association Court Opera- Spotlight Award recipients are: tions Committee. She was select- ed as a Fellow of the ABA Foun- DEBORAH BROWERS dation for Oklahoma. She was a BARNES finalist for the Journal Record Governors for three years and Deborah Browers Barnes is a Woman of the Year and a mem- was vice-chair for the Lawyers judge on the Oklahoma Court of ber of Leadership Oklahoma Helping Lawyers Assistance Civil Appeals. She was appoint- Class XII. She was reared in Program. She also served on the ed by Gov. Henry in 2008 and Sand Springs and was inducted Board of Bar Examiners, Legal sworn-in by her father-in-law, into the Sandite Hall of Fame Ethics Advisory Panel and retired Oklahoma Supreme Education Foundation. chaired the OBA Law Office Management & Technology Sec- Court Justice Don Barnes. Grad- DONNA L. DIRICKSON uating first in her class, she was tion. She has served as president later received the Outstanding Donna L. Dirickson is a spe- and Law Day chair for the OCU Law Review Alumni cial judge in Custer County. Custer County Bar Association, Award. Her legal career includes Prior to her appointment, she Multi County Youth Services private practice with Crowe & was a partner in the law firm of Board of Directors, Great Plains Dunlevy and Stack & Barnes in Duncan & Dirickson in Weath- Family YMCA Board of Direc- Oklahoma City. She also served erford and also worked in the tors and the Weatherford as staff attorney for Supreme Custer County District Attor- Kiwanis Club. Court Justice Ralph Hodges and ney’s office. In 2006 she was then as in-house attorney and named the OKDHS Adoptive
2256 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 LAURA MCCONNELL- CLANCY SMITH LINDA S. THOMAS CORBYN Clancy Smith was appointed Linda S. Thomas is a solo Laura McConnell-Corbyn is a as a judge on the Oklahoma practitioner in Bartlesville, partner with Hartzog Conger Court of Criminal Appeals on where she has represented hun- Cason & Neville. She has been Sept. 1, 2010. A native of Hugo, dreds of children and adults in listed as one of the Top 25 she began her career teaching deprived and mental health Female Oklahoma Super Law- high school English in Tulsa and cases. Being a voice for the vul- yers and Top 50 Oklahoma Jacksonville, Fla. After law nerable began with her first job Super Lawyers. In family law school, she worked in the pri- as a special education teacher she is listed as one of Oklahoma vate practice of law as a solo and speech pathologist. A tire- Super Lawyers and in Best Law- practitioner for 14 years. In 1996 less worker for the Oklahoma yers in America. She is listed in she was named a special judge Bar Association, she has served Chambers USA Guide to Ameri- in Tulsa County in the Family ca’s Leading Lawyers and in Benchmark Top Business Litiga-
on the Board of Governors and as OBA vice president. She Division, where she served with chaired the Leadership Task distinction. In 1996 she received Force and has been the liaison to tors. She is a Fellow of the the Outstanding Family Law both the Law Day Committee American Academy of Matrimo- Judge Award from the OBA and Women in Law Committee. nial Lawyers and a Fellow of Family Law Section. For the She has served on the Budget the American Bar Foundation. next nine years Judge Smith Committee, Access to Justice She was named a Leadership in served in the criminal division Committee and the Strategic Law Honoree and a COALA where she conducted prelimi- Planning Task Force. She chaired Attorney of the Year. She was in nary hearings, arraignments the OBA House of Delegates Cre- Leadership Oklahoma Class XVI and bond hearings. In 2005 she dentials Committee and served and this year achieved the Pro- was appointed as a district two terms on the OBA Founda- file in Excellence from her alma judge in Tulsa County where tion Board of Trustees. She has mater, Oklahoma Baptist Uni- she served in the criminal divi- twice received the OBA Presi- versity. She has chaired the sion and presided over more dent’s Award. She also served Oklahoma County Bar Associa- than 110 felony jury trials. In the Washington County Bar tion Bench and Bar Committee that capacity she worked closely Association by holding every and is currently president-elect with Women In Recovery for office as well as having chaired of the Oklahoma County Bar alternative sentencing options CLE, the annual blood drive and Association. She has served on for women. Judge Smith is an the annual toy drive. In Bartles- the board of directors of Legal active member of the Tulsa ville she has served on the Aid and is co-chair of their County Bar Association. She boards of directors of Run the Oklahoma City Fundraising also served as president of the Streets, Big Brothers and Sisters Committee. She received the Johnson-Sontag Chapter of the of Green Country and Family Cross and Flame Award from America Inns of Court for three Care Services. Chapel Hill United Methodist years, and this year received the Ms. Bruce is the Awards Com- Men for Service to Youth. James Sontag Award for ethics mittee chairperson for the Women and civility. in Law Committee.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2257 PHOTO HIGHLIGHTS OBA Women in Law Conference Sept. 30, 2010 Southern Hills Country Club, Tulsa The OBA Women in Law Conference has gained the reputation as a premier event within the Oklahoma Bar Association. This year’s event provided the information and tools that women in all sectors of the legal profession need to advance in their professional lives.
Dr. Arin Reeves of the Athens Group consulting firm provided tips for succeeding in the workplace.
Justice Yvonne Kauger gave the keynote address during the luncheon.
2010 Spotlight Award winners Judge Clancy Smith, Laura McConnell-Corbyn, Linda Thomas, Judge Donna Dirickson and Judge Deborah Browers Barnes
Lynn Worley and Amy Wilson
Sarah Wynn, Erin Blohm and Kara Thom
2258 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 BAR NEWS
Statement of Ownership Management and Circulation (Required by 39 U.S.C. 3685)
1. Publication Title: The Oklahoma 12. Tax Status: The purpose, function and Bar Journal nonprofit status of this organization and the 2. Publication number: 277-340 exempt status for federal income tax purposes 3. Filing Date: Sept. 30, 2010 has not changed during preceding 12 months. 4. Issue Frequency: 3 issues monthly in Janu- 13. Publication Title: The Oklahoma Bar ary, February, March, April, May, August, Journal September, October, November & december; 14. Issue date for Circulation data Below: bimonthly in June & July September 25, 2010 5. Number of issues published annually: 34 15. Extent and nature of circulation 6. Annual subscription price: $55 7. Complete mailing address of known office A. Total No. Copies (net press run) of publication: P.O. Box 53036, Oklahoma City, (average no. copies each issue during Oklahoma County, OK 73152-3036; 1901 N. preceding 12 months): 14,182 (actual no. Lincoln Blvd., Oklahoma City, OK 73105 copies of single issue published nearest 8. Complete mailing address of headquarters to filing date): 13,500 or general business office of publisher: P.O. Box B. Paid and/or Requested Circulation 53036, Oklahoma City, Oklahoma County, OK 1. Paid/Requested Outside-County 73152-3036; 1901 N. Lincoln Blvd., Oklahoma Mail Subscriptions (average no. City, OK 73105 copies each issue during preceding 9. Full names and complete addresses of 12 months): 13,305 (actual no. copies publisher, editor, and managing editor: of single issue published nearest to Publisher: Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036 filing date): 12,517 Editor: Melissa DeLacerda, 301 S. Duck, Still- 2. Paid In-County Subscriptions (average water, OK 74076 no. copies each issue during preced- Managing Editor: John Morris Williams, ing 12 months): 0 (actual no. copies Oklahoma Bar Association, P.O. Box 53036, of single issue published nearest to Oklahoma City, OK 73152-3036 filing date): 0 10. Owner (If the publication is owned by a 3. Sales Through Dealers and Carriers, corporation, give the name and address of the Street Vendors, Counter Sales and corporation immediately followed by the Other Non-USPS Paid distribution names and addresses of all stockholders (average no. copies each issue during owning or holding 1 percent or more of the preceding 12 months): 0 (actual no. total amount of stock.) copies of single issue published Oklahoma Bar Association, P.O. Box 53036, nearest to filing date): 0 Oklahoma City, OK 73152-3036 4. Other Classes Mailed Through the 11. Known bondholders, mortgages, and USPS (average no. copies each issue other security holders owning or holding 1 during preceding 12 months): 0 percent or more of total amount of bonds, (actual no. copies of single issue mortgages or other securities: None published nearest to filing date): 0
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2259 C. Total Paid and/or Requested Circula- tion (average no. copies each issue during preceding 12 months): 13,305 (actual no. copies of single issue published nearest to filing date): 12,517 D. Free or Nominal Rate distribution by Mail 1. Outside-County (average no. copies each issue during preceding 12 months): 174 (actual no. copies of single issue published nearest to fil- ing date): 174 2. In-County (average no. copies each issue during preceding 12 months): 0 (actual no. copies of single issue published nearest to filing date): 0 3. Other Classes Mailed Through the USPS (average no. copies each issue during preceding 12 months): 0 (actual no. copies of single issue published nearest to filing date): 0 4. Free distribution Outside the Mail (average no. copies each issue during preceding 12 months): 0 (actual no. copies of single issue published nearest to filing date): 0 E. Total Free distribution (average no. copies each issue during preceding 12 months): 174 (actual no. copies of single issue published nearest to filing date): 174 F. Total distribution (average no. copies each issue during preceding 12 months): 13,479 (actual no. copies of single issue published nearest to filing date): 12,691 G. Copies Not distributed (average no. copies each issue during preceding 12 months): 703 (actual no. copies of single issue published nearest to filing date): 983 H. Total (average no. copies each issue during preceding 12 months): 14,182 (actual no. copies of single issue Want to save some published nearest to filing date): 13,500 paper? Go online to I. Percent Paid and/or Requested Circula- tion (average no. copies each issue my.okbar.org/Login during preceding 12 months): 98.70 (actual no. copies of single issue and sign in. Click on published nearest to filing date): 98.62 “Roster Info” and I certify that the statements made by me above are correct and complete. switch to electronic to John Morris Williams Editor-in-Chief receive court issues.
2260 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 FROM THE PRESIDENT the battle for France in the has lived in Washington, D.C. continued from page 2188 summer of 1944. Contrasting for several years. Barbara the cemeteries is an educa- asked if there was any Nor- imagine. The beach on July 4, tional experience on why we mandy Invasion history with 2010, was covered with kids fought that war. While the respect to the farmhouse. We playing in the surf, teenagers cemetery is reasonably well learned that on the early sunning on the beach, and maintained, very few people morning hours of June 6, dogs splashing through the appear to visit it. The few 1944, members of the 101st surf catching frisbies. We were individuals who were there at Airborne Division landed lit- wrenched from this beautiful the same time we were erally in the front yard and scene by a comment made by appeared to be middle aged adjoining pond. A German our tour guide as he held his or WWII-aged Germans. It is battalion or regimental head- hand out pointing in an easter- interesting to note that this quarters was located in one of ly direction along the vast cemetery is located in the the farm buildings, and there expanse of Omaha Beach and country that was invaded and had to have been a firefight in said, “By 10 a.m. on June 6, occupied by Germany. I am the front yard where my 1944, this beach was littered not aware of any cemeteries grandkids and I had been with the bodies of 1,800 dead in occupied Europe which kicking a soccer ball the Americans.” contained the honored graves day before. of Germany’s adversaries dur- Just above the Normandy I have heard comments ing that occupation. Beach lies the most beautiful from some people my age and military cemetery I have While all of this was more younger who feel that we seen. It contains the bodies of than enough culture and his- have made a little too much of 9,200 Americans killed in the tory to last a lifetime, what the “Greatest Generation,” invasion of France from June Barbara discovered the next particularly with respect to 6, 1944, through the libera- day gave me chills. the Second World War. Those tion of Paris in August of people need to go to Norman- We were staying in a 300- that year. Some of those dy, France, and take the tour year-old French farmhouse graves indicate deaths occur- I took. ring on June 6, 1944, by (one of the largest in the prov- members of the 29th Division ince), a few kilometers west of Never again perhaps will a and 1st Division. Those par- Carentan, which contains great nation be so united in ticular graves are located less approximately 5,000 – 6,000 such a cataclysmic struggle than 300 meters from the people. Barbara had located where good and evil were so beach where they died. the farmhouse on a website clearly demarked. We, west- listing for vacation rentals. ern civilization and the There is another cemetery After learning there had been human race owe a debt of outside the city of Carentan apparently some fighting gratitude to those men and approximately 8 to 10 kilome- around Carentan, Barbara e- women who delivered us ters south of Omaha and Utah mailed the owner of the farm- from perhaps the most tragic beaches. It contains the house. The lady who owns bondage that western civiliza- remains of over 20,000 Ger- the farmhouse is a French tion has ever endured. man soldiers who, like their National, who is married to adversaries the Allies, died in an American diplomat and
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2261 FROM THE EXECUTIVE DIRECTOR
Practicing Law in Hard Times By John Morris Williams
The reports I have received real kicker is that when times from several reliable sources are the hardest is when the indicate that the effects of the least resources are available If you find national economic downturn and the needs are the greatest have visited Oklahoma law- to assist low-income folks that the stresses yers. The stress and pressures with serious legal problems. of maintaining a law office in and challenges of While our pro bono rule is slow economic times are the aspirational, providing low same as with many business- your practice are cost or no cost legal services es. Overhead and salaries or giving money to an organi- continue even when the cash overwhelming you, zation that provides free legal flow is slow. I remember services is in my mind a very starting practice in 1983 let us know what professional thing to do. shortly after the Penn Square Bank failure and the fallout My sources also tell me that we can do from its demise. Being new to young lawyers with large stu- the practice of law, I was dent debt are likely to face to help. unaware of what practicing in some serious economic chal- good times looked like. Now lenges in meeting debt obliga- I know good times are better. tions coming right out of law It is like the old saying “I school. This is especially true have been rich and I have when they are attempting to been poor, rich is better.” start a practice immediately upon graduation. These chal- Those times in 1983 seem lenges for young and old far removed. However, as the alike are resulting in higher economy picked back up in incidences of stress-related the state of Oklahoma my illnesses and mental health practice changed. The first challenges. couple of years in practice I recall were basically concen- Last month I wrote about trated on debtor-creditor the program that the Lawyers relationships that had gone Helping Lawyers Assistance south. Oftentimes the debtor Program is putting on at the stress related to the current could not afford representa- OBA Annual Meeting. I fig- economy. I have seen some of tion. I know that because ured if I bugged you about it their work and it looks like often times when I represent- enough you might come. So good stuff. This program is ed the debtor I found myself here I am at it again. One fea- free. You do not have to be involved in another failed tured speaker is the current signed up for the Annual debtor-creditor relationship. president of the Texas Bar Meeting to attend. This says nothing about the Association who will be The OBA is very mindful of countless people who do speaking on a significant ini- the times in which we live not have the means to even tiative by the Texas Bar Asso- and strives consistently to attempt to hire counsel. The ciation to address attorney give you good value for your
2262 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 membership. If you find that more in developing your overwhelmed in these hard the stresses and challenges of practice and your practice times. I have never seen a your practice are overwhelm- skills than the advice of time good or bad, when get- ing you, let us know what we learned peers. Notice I did ting learned advice from the can do to help. In addition to not say “older.” However, OBA or a peer has been a LHLAP, our Management someone who has been at the bad thing. Assistance Program, Ethics practice of law might be a See you at the Annual Counsel and CLE departments good peer to consult. I believe Meeting! all stand ready to assist you that like pro bono work, shar- with programming and help- ing your knowledge with ful tips to help you in these your peers is the professional hard times. thing to do. These are not the first hard times many of us Lastly, I would be remiss in have seen in the practice of not reminding you that often law. I want to encourage you the best help you can get is to reach out to your profes- from your peers. I believe To contact Executive sional association and your that nothing can help you Director Williams, e-mail peers if you begin to feel him at [email protected].
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2263 LAW PRACTICE TIPS Super Charge Your Conference Calls By Jim Calloway, Director, OBA Management Assistance Program
Do you find yourself partic- Maybe there’s some peer pres- time. Calling everyone to get ipating in more telephone sure involved, too. available dates and times can conference calls today than be very time-consuming. There But whether you are coordi- several years ago? Many of us are electronic services like nating volunteers, negotiating have noticed an increase in MeetingWizard.com that allow the language in a pretrial con- the number of conference you to automate the date/time ference order or scheduling selection process, provided calls, even for fairly major half a dozen depositions, there you start well in advance. projects, in part due to the are probably even more con- With these services, you iden- challenges and expense of ference calls in your future. travel. (These are so common tify your proposed available that a new term has been There are now some power- dates and times and enter the invented for them: the tele- ful tools and techniques to use e-mail addresses for everyone conference. But I’ll still else who will participate. mostly use the old school The service then sends them term.) It seems like any a link to a survey where they time there is a court case can check off the times that or a project involving work for them. several lawyers from differ- You will be notified when ent firms, particularly in everyone has responded and different states, at some can view a chart showing point there will be confer- what times work for every- ence calls. one. MeetingWizard can also When you work with lots prompt them if they do not of volunteer lawyers on respond and can be set to projects, you soon learn one remind them the day before of the best ways to move a the teleconference. The basic project along is to have a MeetingWizard service is conference call. The main free, but registration is reason that these are so required. Other popular effective is that everyone meeting scheduler services can be found sets aside time to think with your conference calls. at www.timebridge.com, about and work on the project. Here are some tips on power- www.setameeting.com and People will also agree to do ing up your conference calls. something in a conference call www.tungle.me/Home. First of all, scheduling a when they might decline the If you are scheduling conference call can sometimes request than if it was present- your own teleconferences seem to take as much time as ed in some other one-to-one with people in various time the actual conference call itself. method of communication. zones participating, take E-mailing everyone could There is some power in the a look at an old standby work well, but we all have silence after “So who’s going www.timeanddate.com and such a flood of e-mail to man- to agree to handle that?” its Meeting Planner to make age, that often someone fails to respond within a reasonable
2264 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 sure you keep the time con- write down that key combina- out announcing they were versions straight. tion. This varies from one doing so and whether they conference calling service to thought they would return. One of the biggest distrac- another, so it is important that If your law firm has pur- tions in conference calls is you always write it down chased a new phone system caused by the failure to mute. when it is given at the begin- within the last five or six We’ve all been distracted ning of the call. by hearing people rustling years, then it probably has papers, pages over the inter- Why, one might ask, do you many powerful functions that com system and participants care about that when there is a you do not know how to use. responding to whispered mute button on your phone? But every lawyer should at inquiries from staff. If you That mute function will do least know how to connect have the call on your speaker something your phone will two lines together for three- phone function, it is probably not. Suppose you are on the way conference call without best to keep it muted unless conference call and an assis- bothering the assistant or set- you are a very active partici- tant comes with a note that a ting up a formal conference pant or you at least close your federal district judge’s office is call with a service. Being able door and ask everyone not to on the phone and says it is to do this easily can make you disturb you. Yes, keeping the urgent or another lawyer has look good to the lawyer who call muted at all times will to talk to you immediately has no clue how to do it. about referring you a major take a bit of retraining on your I recall once Natalie Kelly, case. The natural impulse will part, and you may find your- the practice management advi- be to place the conference call self being ignored by the oth- sor for the Georgia bar, and I on hold to handle that call. ers a time or two until you needed to talk to our colleague Many of us have had a confer- train yourself to unmute as Reid Trautz, practice manage- ence call interrupted by “hold you begin speaking. But your ment advisor for the Associa- music” when one lawyer plac- new courtesy skill will serve tion of Immigration Lawyers es the call on hold to handle you well for years. of America. I had just hung up an emergency call. You can the phone with Reid. Knowing If you are participating in a avoid this inadvertent rude- that Natalie was on her mobile conference call by mobile ness, by using the conferenc- phone, I said “well, let me fig- phone, you absolutely have to ing system’s muting instruc- ure out how to conference us mute when you are not speak- tions before you place the call together.” “Oh, I’ll do it,” Nat- ing. Occasional static and on hold. This will keep the alie said and hung up. wind noises will not be other participants from hear- noticed by you, but they will ing the hold music while you Within what seemed like be noticed by everyone else on talk to His Honor. It is much seconds, my phone rang with the call. These are not just dis- better than just hanging up Reid and Natalie on the line. tracting, but downright infuri- because when you pick up the We expressed how impressed ating. Hopefully your smart line again, you will be restored we were with how quickly she phone has a mute button. But to the conference call without conferenced us all together on if not, you must commit the having to call back in and a mobile phone. “Listen,” mobile phone key combina- re-enter the codes for the Natalie said, “I have three tions for mute and unmute conference call. sisters. I don’t have time to to memory. repeat all of that family stuff It depends on the number of three times.” A TALE OF TWO MUTES participants and your role in Your office phone most the call whether you feel the If you want to impress your likely has a mute button. But need to announce that you colleagues that way, you’ll if not, commit that set of key have to drop out momentarily have to learn and practice that combinations to memory or just want to sneak out and skill on your brand of mobile as well. sneak back in. But it probably phone. But for your office makes sense to announce your phone system, you can set up But that’s not the only return if you have been gone an easy cheat sheet. There are important muting skill — more than a few minutes. Of probably booklets explaining when the conference call voice course, no lawyer representing all of the features of the phone introduction gives you the a client on a conference call floating around the office. You instructions on how to mute, would want to drop out with- probably even had training
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2265 that was long-since forgotten. provide free conference calling Web conferencing services Search the company’s website by using a toll number (i.e. are fairly easy to set up. The to see if there is a PDF version not an 800) number that the meeting organizer sends all of online. (You can always scan attendees dial or you can pay the participants a link and the booklet to PDF if it comes a small fee for a toll-free num- then they log in to look at the to that, but most should be ber. These include www. meeting organizer’s desktop. easily found online.) Down- freeconferencecall.com and It is probably a good idea for load the PDF, store it some- www.freeconference.com. the organizer to shut off the where on your computer or Skype can handle up to e-mail account and close any your network where it will be nine callers. confidential documents but easy to find (My Documents otherwise you can share any- WEB CONFERENCING – may be it.) You also may want FOR WHEN PICTURES thing from a document to a to rename the PDF file to ARE WORTH MORE THAN PowerPoint presentation. something easy to locate. If JUST WORDS Many of these services have you have Adobe Acrobat, you polling, online data store and can add bookmarks to the Web conferencing services other advanced functions. paragraphs that describe con- are surprisingly easy to use Lawyers should know how ferencing calls together or you and very effective if docu- to use web conferencing ser- can extract just the page with ments are to be discussed in a vices like GoToMeeting, Adobe those instructions and save it call. Instead of sending a pro- Connect (free for up to three as a separate PDF file. posed contract or other docu- ment around by e-mail and participants) and DimDim There are numerous services hoping for replies, set a confer- (free for up to 20 participants). for conference calls and your ence call and provide a link so Hopefully, this brief over- office probably has already everyone can look at the docu- view will make your confer- selected a service. But if one ment and watch as changes ence calls more powerful and ever has to set up a conference are made. Then you can more enjoyable for everyone. on the weekend or for a non- send everyone the final draft business matter, it should be (hopefully). noted that several services
2266 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 ETHICS & PROFESSIONAL RESPONSIBILITY A Breakdown of Out-of-State Attorney Registration By Gina Hendryx, OBA General Counsel
Since 2005, out-of-state attor- Supreme Court or highest to appear at hearings neys wishing to appear in an admitting court in which without the local counsel Oklahoma forum must first the applicant is licensed in attendance. register with the Oklahoma to practice law. An Oklahoma court may Bar Association. This registra- 3) A registration fee of temporarily admit an out-of- tion requirement for attorneys $350 payable to the OBA is state attorney on a showing of from other jurisdictions can be due at the time the appli- good cause for noncompliance found in the Rules Creating cation is submitted. with the provisions of the rule. and Controlling the Oklahoma However, this temporary Bar Association, 5 O.S. Ch.1, admission may be for no App. 1, Art. II. Those rules longer than 10 days and the state that the attorney may attorney must comply with appear in an action or the registration requirements. proceeding only upon: All out-of-state An annual renewal fee of 1) Registering with the attorneys appearing $350 is required if the matter Oklahoma Bar Associa- remains pending on the anni- tion; and, before an Oklahoma versary date of the verified 2) The approval of the tribunal must associate application. Failure to renew court, arbitrator, mediator may result in the imposition or administrative or gov- local counsel. of a $100 late fee. Forms for ernmental hearing officer renewal along with a full where the action or description of the require- proceeding is pending. ments and text of the rule may be found at www.okbar.org/ The procedure for register- Upon receipt of the applica- out_of_state/amended-rule- ing includes: tion, certificates of good stand- notice.htm. 1) The out-of-state attor- ing, and the fee payment, the These requirements apply to ney submits to the OBA OBA will review and issue a matters pending before Okla- the original and one copy “Certificate of Compliance.” homa state courts or tribunals. a completed and signed This certificate is then includ- They do not apply to matters application. The applica- ed as an exhibit to a Motion to pending in the federal courts. tion form may be found Admit or Pro Hac Vice Motion If you have questions about at www.okbar.org/ to the appropriate tribunal. this rule or need assistance in out_of_state/forms.htm. All out-of-state attorneys getting an out-of-state attorney appearing before an Oklahoma registered, contact Manni 2) Along with the complet- tribunal must associate local Arzola at [email protected] ed form, the attorney counsel. It is up to the presid- or (405) 416-7061. should submit current cer- ing judge or officer whether to tificates of good standing allow the out-of-state attorney from the clerk of the
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2267 BAR FOUNDATION NEWS The Thread By Phil Frazier
It was at the President’s country together is the pro- only a few weeks away and Prayer Breakfast, OBA Con- tection and perseverance of OBA President Allen Small- vention 1999. The Murrah justice, liberty and freedom. wood promises an outstand- Bombing was still fresh on our There is only one profession ing convention this year. Will minds. The mayor of Okla- that is dedicated to protection YOU be there? The board of homa City was one of the and furtherance of this thread, the OBF has worked diligently speakers along with the Meth- the lawyers, each of you peo- this year in troubled economic odist minister and the Rabbi ple seated here this morning.” times to help with the finan- from churches near the site cial needs of our many worthy One might expect from a that received damage from the organizations who depend group of lawyers that such a bombing. Each speaker noted upon the Oklahoma Bar Foun- flattering remark would bring the magnitude of the loss in dation annual grants. Have a round of hearty applause. lives and property. YOU done your part? Atten- Instead, for a few moments dance and participation is The thought that anyone there was absolute silence. what the THREAD is all about could have so little concern in Perhaps it was the sincerity for those who are charged taking lives and destroying of the remark or that we need- with so awesome a responsi- property is almost impossible ed time for it to sink in. “He is bility as the lawyer, in the to comprehend and certainly right,” said the lawyer seated protection of justice, liberty can never be justified. We next to me, “and I don’t think and freedom. were reminded that our coun- I am doing my part.” try was founded by those Phil Frazier is president seeking freedom from unrea- Said another way, are we all, of the Oklahoma Bar Founda- sonable governmental controls the nearly 16,000 lawyers of tion. He can be reached at on property rights, religious Oklahoma, doing our part? [email protected]. choices and basic freedom in Our state bar convention is the conduct of our daily activ- ities. Our Founding Fathers intended that we should no longer live in fear of such Oklahoma Bar Foundation announces things and enacted not only 2010 Roger R. Scott Memorial Award Recipients the Constitution but bestowed • Michael C. Mayhall, Lawton upon the states the right to • Richard R. Riggs, Oklahoma City enact laws to further such • Mart Tisdal, Clinton rights to assure protection from those who would chose The Roger R. Scott Memorial Award is given to individuals who to invade the life, liberty and best exemplify Roger Scott’s unqualified dedication to the Oklahoma peaceable coexistence of the Bar Foundation and the good work it does in the name of Oklahoma U.S. people, as well as infringe lawyers serving as an inspiration to all individuals connected to the upon our property rights. legal profession. The 2010 awards recognizes those who have recruit- ed more than 50 new Fellows each for the foundation, adding to the As the Rabbi addressed our OBF’s ability to fund charitable law-related programs and services early morning group, he stat- throughout Oklahoma. Their work in recruiting new Fellows has ed, following his having noted helped to further the mission of the Oklahoma Bar Foundation – previously some public dis- Lawyers Transforming Lives through the advancement of education, dain for our profession, “The citizenship, and justice for all. very thread that holds our
2268 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 Fellow Enrollment Form
m Attorney m Non-Attorney
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City/State/Zip: ______
Phone:______Fax:______E-Mail Address:______
__ I want to be an OBF Fellow now – Bill Me Later! __ Total amount enclosed, $1,000 __ $100 enclosed & bill annually Lawyers Transforming __ New Lawyer 1st Year, $25 enclosed & bill as stated Lives through educa- __ New Lawyer within 3 Years, $50 enclosed tion, citizenship and & bill as stated justice for all. Join the __ I want to be recognized as a Sustaining Fellow & will continue my annual gift of OBF Fellows today! at least $100 – (initial pledge should be complete) __ I want to be recognized at the leadership level of Benefactor Fellow & will annually contribute at least $300 – (initial pledge should be complete)
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2269 ACCESS TO JUSTICE
Reaching Our City… Not Just a Name, A Mission By Cindy Goble
Reaching Our City is a Sara M. Schneberger is the community outreach project Legal Aid Coordinator at located in the Greenvale We are the Reaching Our City. Recently, neighborhood of Oklahoma Sara received a voicemail from City. Located at 7710 N.W. only opportunity they a client saying, “Thank you so 10th St., Reaching Our City much for all you are continu- offers an array of programs have for justice, some ing to do for me in my life, to meet the identified needs you are making a huge change of the working poor of the peace of mind, some for me in the right direction N.W. 10th St. corridor in and I just give God thanks for Oklahoma City. understanding of our your love!” Reaching Our City pro- legal system. According to Ms. Schne- grams include a medical clin- berger, “sometimes the best ic, food pantry, daycare, after thing we can do is just listen school program and a resale Pat Brown, an attorney with and provide a place where shop. A few years ago, Reach- Michael L. Loyd & Associates, people can feel that they have ing Our City and Legal Aid assisted a client to end illegal been truly ‘heard.’ When we Services of Oklahoma Inc. practices by the landlord of an are able to assist in more tan- formed a partnership to offer apartment complex. gible ways and can see the a legal clinic staffed by volun- positive results from our teer attorneys, which is gener- “A couple of well-placed efforts, it is just the best ally held one time per week. telephone calls, one letter and ‘paycheck of the heart’!” a few weeks later, the landlord “We are only scratching the ceased his illegal and oppres- Legal Aid Services of Okla- surface. We see so many peo- sive practice. There were some homa Inc. is a statewide pro- ple, mostly mothers and older very thankful people at that gram with offices assisting women, who have no resourc- apartment complex. Some- every county. If you are inter- es. We are the only opportuni- times it’s very difficult to help ested in lending a hand with ty they have for justice, some our clients whose problems an outreach project or would peace of mind, some under- seem overwhelming and com- like more information about standing of our legal system. plicated. Other times, we can outreach projects, you may Everyone must have access to obtain very good results in a contact Cindy Goble, State- our legal system if it’s going short time. No matter what wide Pro Bono Coordinator, to work. I get greater satisfac- the result, though, I am Legal Aid Services of Okla- tion from this work than any I always impressed with our homa Inc., by calling (405) was ever paid for,” said attor- clients’ humility and grati- 488-6823 or e-mailing her ney Richard Hastings. tude,” she said. at [email protected].
2270 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 YOUNG LAWYERS DIVISION 2011 YLD Leadership Elections Go Electronic for the First Time
For the first time this year, demonstrate that you are a administrative matters. Molly the YLD will utilize electronic qualified voter. Ballots without has been active on the OBA/ voting for the YLD elections. this information, or otherwise YLD Board of Directors since Each qualified YLD member nonconforming, will be 2004, serving as treasurer, will receive an e-mail from the stricken. Only one ballot, secretary and an elected board OBA with your ballot electronic or otherwise, per member for District 6. Molly is attached. Simply fill in the YLD member. There will be also active in the American Bar proper information and vote no disclosure of voter ballots. Association YLD and has for your candidates. Ballots served as an Oklahoma Members of the Nominating will be e-mailed on or before Delegate to the ABA/YLD Committee are not eligible to Oct. 15, 2010, and all ballots Assembly since 2005. In vote except in the case of a tie, are due to the Nominations addition, Molly has been a which shall be broken by Committee no later than Tulsa delegate to the OBA secret ballot of the Nominating 5 p.m. Nov. 10, 2010. House of Delegates since 2007, Committee. Election results has served on the Tulsa The e-mail address used will be announced at the County Bar Association Board by the YLD will be the one Annual Meeting of the of Directors, is a past chair of currently on file with the Division held in conjunction the TCBA/YLD and was OBA; therefore, if your e-mail with the OBA Annual Meeting. named the TCBA Young is not current with the bar, Lawyer of the Year in 2006. this may hinder your ability Molly has also been active in to receive an electronic ballot. the Council Oak/Johnson- If your e-mail is not current, Sontag American Inns of Court or you do not have your e- and has served as an mail on file with the OBA, administrator since 2006. She you can receive a is on the Board of Directors for replacement ballot by Legal Aid Services of Okla- accessing www.okbar.org/ homa. Molly received her J.D. yld, where you can download from the University of Kansas a replacement ballot. Once School of Law in May 2003. downloaded, print it off and While at Kansas, Molly mail, fax or e-mail it to the received the Rice Scholarship, Elections Committee, c/o a full tuition scholarship and Rick Rose, 300 NE 1st, Molly A. Aspan was a member of the Kansas Oklahoma City, OK 73104, Immediate Past-Chairperson Law Review. Molly earned her fax (405) 236-1520, or bachelor of arts degree, with [email protected]. Molly has been an associate honors, in economics and at Hall, Estill, Hardwick, Members can update their political science from Fort Gable, Golden & Nelson in its e-mail address through My Hays State University in May Tulsa office for seven years. Okbar; however, if your e-mail 2000. While at Hays, Molly Her primary practice area is is not updated before Oct. 15, was a state finalist for both labor and employment defense 2010, you will likely need to the Rhodes and Truman litigation. Molly provides download a ballot. Scholarships. Molly is employment counseling and admitted to practice in all Please remember that your advice to numerous employers federal and state courts in OBA number is required to and represents employers in Oklahoma and Kansas. In identify you and to employment litigation and
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2271 addition to legal activities, Association, serving as its Oklahoma state courts, as well Molly is also active in the president-elect and Law Day as the U.S. District Courts Junior League of Tulsa and co-chair. Roy is active with the for the Western, Eastern Kirk of the Hills Presbyterian TU Law Alumni Associa- and Northern Districts of Church, volunteers at the tion, and is a graduate of Oklahoma and the 10th Cir- Community Food Bank of Leadership Tulsa Class 31. cuit Court of Appeals. Her Eastern Oklahoma and is a He is a board member for the educational credentials in- member of the Fort Hays State Muskogee Area Arts Council clude a bachelor of arts from University Alumni Association and is an advisory board Cameron University, a master Board of Directors. member for Health Outreach of arts from the University Prevention Education Inc. in of Oklahoma, and a juris Tulsa. Roy is employed as the doctor from Oklahoma City assistant city attorney for the University School of Law. City of Muskogee, a position Jennifer is a member of the he has held since May 2008. Oklahoma Bar Association and Prior to entering the public has served on the OBA Young sector, Roy was in private Lawyers Division Board of practice in Tulsa. Directors since 2008, and is currently serving as secretary UNCONTESTED for 2010. Recently, she was ELECTIONS: selected for the OBA’s 2009- The following persons have 2010 Leadership Academy. been nominated. They are She is also a member of running uncontested and will be the Oklahoma County Bar declared elected at the Annual Association and the American Meeting of the Oklahoma Bar Bar Association. Jennifer is Roy D. Tucker Association Young Lawyers also actively involved with the 2011 Chairperson Division. Oklahoma Academy for State Roy has served in various Goals, a non-partisan policy capacities on the OBA/YLD making group, and has been Board of Directors since 2005, serving on the both the board including the officer position of directors and the executive of secretary and treasurer in committee since 2008. Jennifer 2009 and 2010, respectively. He lives and practices in Edmond. has previously been involved with the OBA Solo/Small Firm Conference Planning Committee, OBA Attorney Art Show and currently serves as the YLD liaison to the OBA Law Schools Committee. He is a previous award winner for Outstanding Director of Jennifer Kirkpatrick the YLD (2006; 2007) and Chairperson-Elect Outstanding Officer (2009). Roy hopes to continue to serve Jennifer is an attorney at the OBA/YLD as Chair of the Argenbright & Kirkpatrick and division for 2011. Roy is a 2003 focuses her practice on graduate of the University of representing public utility Kaleb Hennigh Tulsa College of Law, and was companies before the Secretary admitted into the OBA the Oklahoma Corporation same year. He has been Commission. Previously, she Kaleb is a partner in the admitted to practice before all has practiced in the areas of regional law firm of Mitchel, federal courts in Oklahoma, as civil litigation, bankruptcy, Gaston, Riffel & Riffel PLLC. well as the 10th Circuit Court creditors’ rights, commercial Kaleb was born and raised of Appeals. He is very active and administrative law. She is near Laverne. He maintains a in Muskogee County Bar admitted to practice before all B.S. degree in agricultural
2272 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 communications and where he was president Young Lawyer. Robert has agricultural economics from of several organizations been a member of the OBA Oklahoma State University; a including Lambda Chi Alpha Young Lawyers Division J.D. from the University of Fraternity, Political Science Board of Directors, repre- Oklahoma College of Law; Club and College Republicans. senting both the rural counties and an LL.M. in agricultural Upon his graduation from of the state including Enid, as law from the University of OSU in 2001 he was awarded well as the 4th District, since Arkansas School of Law. Kaleb the Kenny Gallagher Award 2006. His most recent duties was named outstanding for top Arts & Sciences on the YLD board have Agricultural Communications Male. Robert then attended included the planning and Graduate from Oklahoma Oklahoma City University execution of the YLD State University in 2000; and School of Law on a presti- hospitality suites at the Solo Named Top 10 Graduating gious Hatton W. Sumners and Small Firm Conference Senior from OSU. Kaleb is the Scholarship. While at OCU and Annual Meeting. recipient of Kelly Beardslee law he founded the Criminal award from OU for Indigent Law Association and was Criminal Work through Legal active in many other Clinic at the OU College of organizations including Merit Law. Kaleb is currently serving Scholars, American Trial his second term as a YLD Lawyers Association and the board member. He currently Federalist Society. In 2004 he focuses his legal practice on graduated magna cum laude real estate and commercial from OCU law and was transactions, bankruptcy and admitted to the OBA in debtor/creditor matters, October 2004. Robert now corporations, agricultural lives in Enid with his son transactions, wind energy Baylor and daughter Sophia. lease and easements, and He is the managing member estate planning, probate and of Faulk Law Firm PLLC trust administration. Kaleb, his and practices in the areas of Breea D. Bacon wife Jennifer, and their two criminal defense, general civil District Five sons Karsen and Jase, reside litigation, family law, personal in Enid. injury, workers’ compensation, Breea has served District 5 custody and divorce. He is a for almost a year. She was member of the OBA, the nominated to fill the vacant Garfield County Bar Asso- seat by her fellow YLD ciation treasurer and social directors and has thoroughly chair, member of the American enjoyed her experience with Bar Association, Enid Noon the board thus far. Breea Ambucs past president, is an graduated from the University Oklahoma Bar Foundation of Oklahoma College of Law Fellow, a member of the in 2008 and from Wichita State Federal Bar of the Western University with a B.A. in District of Oklahoma, chair of political science in 2005. Leadership Greater Enid and Currently employed in the is on the Board of Directors for Provost’s Office at the several civic and community University of Oklahoma, she organizations including Main loves serving as the assistant Street Enid and the Cherokee Robert R. Faulk director of Academic Integrity Strip Chapter of the Oklahoma Systems, which allows her to District Four State University Alumni Asso- create policy on academic Robert is originally from ciation. He has been appointed integrity, as well as work with Oklahoma City. He graduated to the OBA’s inaugural students. When not at work or from Northwest Classen Leadership Academy and volunteering her time with High School in 1996. After recently received an award YLD, the Library Board for the graduation he attended from the Garfield County Bar City of Norman or the LUNA Oklahoma State University Association for Outstanding Moms Club, she cherishes
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2273 spending time with her 3-year- doctorate, also from OU, in honors from the University of old son, Jordan. Over the past 2002. Justin is a member of Oklahoma in 2009. While in year, her main responsibilities the Muskogee County Bar law school, Erin was a note on the board have been Association and the OBA, and editor for the Oklahoma Law organizing the ever-popular is admitted to practice in the Review and a member of the YLD suites at both the Solo Eastern, Western and Northern Warren McGee Civil Rights and Small Firm Conference Districts of Oklahoma, as well Moot Court team and the in Quapaw and this year’s as in the Creek Nation and Luther Bohanan American Inn Annual Meeting in Tulsa. She Cherokee Nation tribal courts. of Court. Erin’s honors include has also volunteered her time He served as president of the Order of the Coif, the Ameri- handing out survival kits to Muskogee County Bar can Juris-prudence Award students taking the July bar Association in 2006-2007, was in Supreme Court Decision exam and greeting new chosen to attend the OBA’s Making, the GableGotwals admittees at the Oklahoma Leadership Conference in 2007 Supreme Court Award, the City new attorney reception. and was a member of the Captain Brian E. Wheeler This year’s Law Day event in OBA’s 2009 Leadership Summer Write-on Competition District 5 was quite successful Academy. He practices Award and the Salem Civil as well. Held at the Norman primarily in the areas of family Rights Award. Additionally, Public Library, Breea law, bankruptcy, criminal law Erin recently served as re- organized an educational and personal injury. Justin is search and editorial assistant program about law for married to his wife, Shelly for the Third Edition of the children in the Norman Stout, and they have two boys: Research Manual on Scientific community. From a panel of Reed, 6, and Cameron, 3. Evidence published by the speakers that included Mayor Justin has proudly been Reed’s Federal Judicial Center. Erin Cindy Rosenthal, Judge Lori soccer coach for three years is admitted to practice in the Walkley, Rep. Wallace Collins, and has also served as a team state of Oklahoma and the U.S. Rep. Scott Martin amongst coach in Upward Basketball. District Court for the Western others to a rousing game of District of Oklahoma. She is a Freedom Feud, everyone in member of the Oklahoma and attendance learned a lot and Garfield County Bar Associa- had a blast! Breea looks tions and is an Oklahoma Bar forward to continuing to Foundation Fellow. In her free serve District 5. time, she enjoys reading, run- ning and playing outdoors with her son, Andrew.
CONTESTED ELECTIONS: Robert R. Faulk Treasurer Erin L. Means (Biography appears on page At Large Rural 2273) Erin practices in the area of civil litigation in the Enid office of the firm Gungoll, Justin Stout Jackson, Collins, Box & Devoll PC. She was raised on a third- District 7 generation wheat and cattle Justin Stout is a partner in farm near Cherokee and grad- the Muskogee law firm of uated summa cum laude with Wright, Stout & Wilburn. He a B.S. in political science as received a bachelor of arts valedictorian from St. Grego- degree from the University of ry’s University in 2005. She Oklahoma in 1999 and a juris earned her juris doctor with
2274 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 director, representing District 6 Oklahoma in May 2003, where for Tulsa (2007, 2009). She also he was a member of the OU serves as a member on the Scholars program, Order of MCLE Commission (2009- Omega Honor Fraternity, and 2012), the Professionalism numerous other campus Committee (2007, 2009), committees. He received his member and as immediate J.D. from the University of past chairperson for the Oklahoma College of Law in Women in Law Committee May 2006, where he was a (2007, 2009). She has served as class representative, on the a member of the OBA Lawyer Dean’s Council, and a member Advertising Task Force (2007). of the SBA Board of She is a graduate of the Governors. Joe was admitted inaugural 2008-2009 OBA to the practice of law before Amber Peckio-Garrett Leadership Academy. Amber all Oklahoma state courts in Treasurer, District Six was named ABA Law Practice September 2006. Joe has and At Large Management Section Young served as the District Eight Amber is a partner with the Lawyer Fellows for 2010-2011 Representative for the YLD Oklahoma law firm of Garrett and Super Lawyers 2010 Board of Directors since 2006, Law Center PLLC. She Oklahoma Rising Stars. Amber is on the Community Service received dual bachelor’s is a frequent moderator and Committee, is a volunteer for degrees in economics and presenter of continuing legal the Oklahoma Bar Foundation political science from South- education for the OBA and Mock Trial Program, attended eastern Oklahoma State other professional the 2007 OBA Leadership University. She received her organizations. In addition Conference, and was a juris doctor degree from the to her work with the OBA, delegate to the 2009-2010 OBA University of Tulsa College of Amber also serves on the pro Leadership Academy. He is a Law, where she served as bono attorney panel for Legal member of the Pottawatomie articles editor for the Tulsa Aid of Oklahoma for Tulsa County Bar Association and Journal of Comparative and and surrounding counties served as president from International Law and as the working with at-risk women 2007-2009, a member of the Student Bar Association and families. American Bar Association, and Speaker of the House. She a Fellow of the Oklahoma Bar was admitted to practice in Foundation. In 2008 he Oklahoma in 2003, and she received the District 5 Child practices in the areas of Abuse Prevention Task Force consumer protection, “Child Advocate of the Year” insurance disputes, product Award. Joe also serves on the liability, family law and Board of Directors for the OU criminal defense. Amber is Chapter of Sigma Alpha admitted to practice in all Epsilon. courts in the state of Okla- Jennifer Kirkpatrick homa and before the U.S. At Large District Court for the Eastern District of Oklahoma and the (Biography appears on page U.S. District Court for the 2272) Northern District of Okla- Joe Vorndran homa. She is an active member Treasurer of the OBA, American Bar Association, American Joe is a partner with the continued on next page Association of Justice, the Shawnee law firm of Stuart, Oklahoma Association for Clover, Duran, Thomas & Justice and the Tulsa County Vorndran LLP. His practice is Bar Association. She currently focused on general civil serves the Oklahoma Bar litigation, family law, and Association as OBA Young municipal law. Joe received his Lawyers Division board B.A. from the University of
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2275 Pro Bono Committee Co-Chair Scholarship and the Oklahoma for the Law Student Division. Bar Foundation Scholarship. She has also served on the Additionally, she earned an YLD Programming Team and Academic Achievement Award as chair of the YLD Access to in Interviewing and Coun- Justice Committee. In addition seling. Karolina was a member to bar activities, LeAnne is a of the American Indian Law member of the OCU Law ReviewDuring. the 2007-2008 Alumni Association Board of school year, she was elected Directors, the Ginsburg Inn of Articles Development Editor Court, EWF International, where she helped create and Edmond Women’s Club, Class implement a new peer-review XXVI of Leadership Edmond, program. For her contribution LeAnne Z. McGill and volunteers with the to the law review, she received District Three and At Large American Cancer Society and the AILR Outstanding Third the Salvation Army. LeAnne is Year Law Student Award. LeAnne is a partner with the a lifelong resident of the Karolina graduated with a Edmond law firm of McGill & Oklahoma City area and bachelor of arts in political Rodgers, where her practice resides in Edmond with science in 2005. focuses on all areas of family her husband. law. She has served on the OBA/YLD Board of Directors for the last two years and the OCBA/YLD Board of Directors for the last four years. She received her B.A. in English and political science from Oklahoma State Uni- versity in 2003 and her juris doctorate from Oklahoma City University School of Law in 2006. Aside from her participation in the YLD, LeAnne is active in the OBA Family Law Section, currently serving on the section’s Sarah C. Stewart executive board as co-chair of Karolina Roberts District Three and At Large District Three and At Large the social committee. She has Sarah is an attorney at also served on several OBA Karolina is currently serving McLendon, Duden & Sasser committees including the on the YLD Board of Directors PC. She represents clients in Mentoring Task Force, the as the District 3 representative. family law, estate planning, Law Day Committee and the She is also a YLD liaison to the probates, foreclosure defense Women in Law Committee. In Professionalism Committee and business organization. She addition, LeAnne is a graduate and the Bar Center Facilities received her B.A. in Spanish of the 2008-2009 OBA Lead- Committee. She is an associate and in journalism and broad- ership Academy, the 2007 OBA at Elias, Books, Brown and casting with an emphasis Leadership Conference, and Nelson. Her practice is de- on public relations from she served as the first chair of voted primarily to the areas Oklahoma State University. the OBA Law Student Divi- of civil litigation, ad valorem She received her J.D. from sion. LeAnne is also active in and bankruptcy law. Karolina Oklahoma City University. the American Bar Association, graduated with honors from having held several positions the University of Oklahoma within the organization College of Law, where she including two terms as the was on the Dean’s Honor Roll National Secretary Treasurer of every semester. She received, the ABA Law Student Division amongst other awards, the and one term as the National Nathalie Pierrepont Comfort
2276 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 also served as president of the Economics Society and Phi Eta Student Senate. Born in Tulsa Sigma Honor Fraternity. Tim on Oct. 25, 1983, Michael and received his J.D. with honors his wife Stephanie currently from the University of Tulsa live in Broken Arrow and College of Law in 2008. While attend St. Pius X Catholic in law school, he served as a Church. Research Assistant to Professor Lyn Entzeroth and was an editor for the Tulsa Law Review. Tim was also involved with the Phi Delta Phi Honor Legal Honor Fraternity, Phi Kappa Phi Honor Fraternity and received the CALI “Excellence Michael Cooper for the Future” Award for District Six and At Large outstanding achievement in Michael is an associate with the study of Constitutional the Tulsa firm of Sneed Lang Law II. Tim is the current chair Herrold PC, where he focuses of the Young Lawyers Division his practice on all areas of of the Tulsa County Bar civil litigation. He has been Association and also serves on the OBA Communications admitted to practice in the Tim Rogers Committee. He is a member of U.S. Districts Courts for the District Six and At Large Northern and Eastern Districts the American Bar Association of Oklahoma, as well as the Tim is an associate at Barrow and an associate in the Council U.S. Court of Appeals for & Grimm PC. His law practice Oak/Johnson-Sontag Chapter the 10th Circuit. Michael is a focuses primarily on business of the American Inns of Court. May 2009 graduate of the and commercial litigation In addition to his legal Oklahoma City University (state and federal), con- activities, Tim serves on the School of Law where he was a struction law and fidelity and Board of Directors of the Tulsa Hatton W. Sumners Scholar, surety law. He graduated from Chapter of the Oklahoma State served as president of the Oklahoma State University Alumni Association and Student Bar Association, and where he received his bachelor The Collaboratorium. He is participated in various other of science in business admin- admitted to practice before the academic and extracurricular istration in economics and a Supreme Court of Oklahoma, activities. He received his minor in finance in 2005. the U.S. District Courts for B.A. from Oklahoma City While at Oklahoma State, Tim Northern, Eastern and Western University, majoring in was a member of the Beta Districts of Oklahoma and the political science, history and Theta Pi Fraternity, Phi Alpha Cherokee Nation. Spanish. While playing on the Delta Legal Fraternity, Delta varsity soccer team at OCU, he Sigma Pi Business Fraternity,
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2277 Calendar October 12 Death Oral Argument; Kevin Ray Underwood – D-2008-319; 10 a.m.; Court of Criminal Appeals Courtroom 14 OBA 2011 Budget Public Hearing; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Craig Combs (405) 416-7040 15 OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000 Association of Black Lawyers Meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donna Watson (405) 721-7776 Lawyers Helping Lawyers Assistance Program Training; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donita Douglas (405) 416-7028 OBA Military Assistance Task Force Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Dietmar Caudle (580) 248-0202 29 OBA Unauthorized Practice of Law Meeting; 18 OBA Alternative Dispute Resolution Section 1:30 p.m.; Oklahoma Bar Center, Oklahoma City Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma with teleconference; Contact: Deborah Reheard City and Tulsa County Bar Center, Tulsa; Contact: (918) 689-9281 Andrea Braeutigam (405) 640-2819 20 Oklahoma Council of Administrative Hearing November Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma 10 Oklahoma Council of Administrative Hearing City and Tulsa County Bar Center, Tulsa; Contact: Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma Carolyn Guthrie (405) 271-1269 Ext. 56212 City and Tulsa County Bar Center, Tulsa; Contact: 21 OBA Access to Justice Committee Meeting; Carolyn Guthrie (405) 271-1269 Ext. 56212 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa Ruth Bader Ginsburg American Inn of Court; County Bar Center, Tulsa; Contact: Kade A. McClure 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: (580) 248-4675 Donald Lynn Babb (405) 235-1611 OBA Bench & Bar Committee Meeting; 12 p.m.; 11 OBA Closed – Veteran’s Day Observed Oklahoma Bar Center, Oklahoma City and OSU Tulsa; 12 OBA Family Law Section Meeting; 3:30 p.m.; Contact: Jack Brown (918) 581-8211 Oklahoma Bar Center, Oklahoma City and OSU Tulsa; 22 OBA Communications Committee Meeting; Contact: Kimberly K. Hays (918) 592-2800 12:30 p.m.; Oklahoma Bar Center, Oklahoma City and 17–19 OBA 106th Annual Meeting; Crowne Plaza Hotel, Tulsa County Bar Center, Tulsa; Contact: Douglas Dodd Tulsa (918) 591-5316 25–26 OBA Closed – Thanksgiving Day Observed 23 OBA Young Lawyers Division Board of Directors Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Molly Aspan (918) 594-0595 December 27 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa 2 OBA Law-related Education Committee Meeting; County Bar Center, Tulsa; Contact: Sharisse O’Carroll 4 p.m.; Oklahoma Bar Center, Oklahoma City and (918) 584-4192 Tulsa County Bar Center, Tulsa; Contact: Jack G. Clark 28 Oklahoma Bar Foundation Meeting; 8:30 a.m.; (405) 232-4271 Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070
2278 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 6 OBA Law-related Education Law School for 20 OBA Alternative Dispute Resolution Section Legislators; 11 a.m.; Oklahoma Bar Center, Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma Oklahoma City; Contact: Jane McConnell City and Tulsa County Bar Center, Tulsa; Contact: (405) 416-7024 Andrea Braeutigam (405) 640-2819 10 OBA Family Law Section Meeting; 3:30 p.m.; 23–24 OBA Closed – Christmas Day Observed Oklahoma Bar Center, Oklahoma City and OSU Tulsa; 31 OBA Closed – New Year Holiday Observed Contact: Kimberly K. Hays (918) 592-2800 15 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 16 OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A. McClure (580) 248-4675 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Jack Brown (918) 581-8211 17 OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000 18 OBA Young Lawyers Division Board of Directors Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Molly Aspan (918) 594-0595
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2279 FOR YOUR INFORMATION
OBA President to Chair Judicial Nominating Commission OBA President Allen Smallwood of Tulsa began a term as chair of the Oklahoma Judicial Nominating Com- mission, starting this month. President Smallwood has Want to save money? served on the commission for five years. The commission is made up of 13 mem- Register for the OBA Annual Meeting bers: six lawyers and seven non-lawyers. before the early bird registration deadline The commission annually elects one of of Nov. 3! Fill out the registration form its members to serve as chair. in this issue, or register online at www.okbar.org
Learning Lessons in Conflict Resolution More than 50 teachers, students and school administrators attended the PROS (Peaceful Resolution for Okla- homa Students) program for two days at the end of September at the Okla- homa Bar Center. PROS is a collabora- tive project of the Early Settlement Pro- grams administered by the Oklahoma Supreme Court, Administrative Office of the Courts and the OBA Law-related Education Department. This school- based peer mediation program encour- ages young people to resolve conflicts in a positive and constructive manner. Strategies center on building strong student self-esteem and teacher efficacy in dealing with on-site conflicts such as fighting and harassment. Students complete an exercise in peer mediation at the PROS program at the bar center.
OBA Member Resignations The following OBA members have resigned as members of the association and notice is hereby given of such resignations: Patrick James Brandt Jason Craig Pitcock OBA No. 19415 OBA No. 19911 1905 E. Abram St., Suite B 100 I Street S.E., Apt. 504 Arlington, TX 76010 Washington, D.C. 20003
2280 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 OBA Member Reinstatements The following members of the OBA suspend- The following member of the OBA ed for noncompliance with the Rules for suspended for nonpayment of dues has Mandatory Continuing Legal Education complied with the requirements for rein- have complied with the requirements for statement, and notice is hereby given of reinstatement, and notice is hereby given such reinstatement: of such reinstatement: Geoffrey Allan Evans Alyssa Montene Lee OBA No. 20200 OBA No. 22207 11424 Kingswick Dr. 2013 Oak Dr. Oklahoma City, OK 73162 Moore, OK 73170 Ted Lee Ryals OBA No. 20107 1932 Parkside Court Moore, OK 73160
Columbus Day Notice The Supreme Court Clerk’s office will be open on Columbus Day, Oct. 11. If your appeal-time trigger occurred 30 days before this date, your time to bring an appeal will not be extended by failing to file on Columbus Day.
Oklahoma Bar Journal Editorial Calendar n August: 2010 2011 Children and the Law n November: n January: Editor: Sandee Coogan Technology & Law Practice Meet Your OBA [email protected] Management Editor: Carol Manning Deadline: May 1, 2011 Editor: January Windrix n February: n September: [email protected] Tort/Civil Litigation Bar Convention Deadline: Aug. 1, 2010 Editor: Leslie Taylor Editor: Carol Manning n December: [email protected] n October: Ethics & Professional Deadline: Oct. 1, 2010 Labor and Responsibility n March: Employment Law Editor: Pandee Ramirez Criminal Law Editor: January J. Windrix [email protected] Editor: Dietmar K. Caudle [email protected] Deadline: Aug. 1, 2010 [email protected] Deadline: May 1, 2011 Deadline: Jan. 1, 2011 n November: n April: Environmental Law Law Day Editor: Emily Y. Duensing If you would Editor: Carol Manning [email protected] like to write n May: Deadline: Aug. 1, 2011 an article on Real Estate and Title Law n December: these topics, Editor: Thomas E. Kennedy Ethics & Professional [email protected] Responsibility contact the editor. Deadline: Jan. 1, 2011 Editor: P. Scott Buhlinger [email protected] Deadline: Aug. 1, 2011
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2281 BENCH & BAR BRIEFS
acquisitions, financing, development and leasing. aylor W. Baird has joined TVaughn, Winton & Clark PLLC in Edmond. His prac- tice involves real estate law, adoptions and collections. harles P. Rainbolt ay Fields has been promot- Mr. Baird is a graduate of Cof Cordell has been Jed to senior vice president Pepperdine University appointed as a trustee of the of the Fiesta Bowl. The Fies- School of Law. Oklahoma Housing Finance ta Bowl annually stages over nne M. Ditmore of Agency by Gov. Brad Henry. 40 events including the AMD Law PLLC has Insight Bowl, Tostitos Fiesta A Joseph Williams was joined Community Care Bowl, and in 2011 will host O. recently sworn-in to College as the Paralegal the Tostitos BCS National be a justice on the Supreme Department head. Ms. Dit- Championship. He oversees Court of the Sac and Fox more is a graduate of the TU several areas including sales Nation. The jurisdiction of College of Law, and she may and marketing, media oper- the Sac and Fox Nation court be reached at aditmore@ ations, public relations, BCS extends to the activities that communitycarecollege.edu. occur on Indian Country Liaison, Big 12 Liaison and within the boundaries of committee membership. He oris L. Gruntmeir has the Sac and Fox Reservation. may be reached at jfields@ Dmoved to the Depart- fiestabowl.org. ment of Veterans Affairs, he Association of Busi- Office of Regional Counsel, ernard Jones was recent- Tness and Communication 575 N. Pennsylvania St., ly promoted as OCU Professionals has awarded B Room 309, Indianapolis, School of Law’s associate Crowe & Dunlevy as a 2010 46204; (317) 916-3375. She is dean for admission and Communitas Award winner now the assistant regional external affairs. In his new in the leadership in commu- counsel for Region 22 position, he will continue to nity service category. In 2009, (Indiana and Kentucky) lead student recruitment every member of the firm’s and supervises the attorneys effort, alumni relations, leadership team served in and support in her region. at least one board position special events and various and 90 percent of the firm’s fundraising responsibilities. arrie A. House has joined Irwin Law Firm in attorneys currently serve on ean A. Nelson has joined C Tulsa. Her practice involves boards or are active in some the Law Office of Richard S business planning, estate type of leadership or volun- A. Nelson PC in Edmond. administration, probate, teer activity. His practice involves collec- estate planning, guardian- tions, criminal defense, he Federation of Defense ship, elder law and tax. estate planning, family law, T& Corporate Counsel has She is a graduate of the personal injury, Social Secu- elected F. Thomas Cordell Jr. OU College of Law. of Chickasha as its president. rity disability and workers’ compensation. Mr. Nelson racy Cotts Reed has he Grand of Tau Kappa is a graduate of OCU School Tjoined Love, Beal & TEpsilon has appointed of Law. Nixon PC in Oklahoma Walter W. Jenny Jr. of Okla- City. Her practice involves cAlister, McAlister & homa City as a judiciary family law, civil litigation McKinnis PC of chairman. He has served as M and appellate law. She is a Edmond has named Jon district vice president and graduate of the OU College Austin as a shareholder of chapter advisor at Omicron- of Law. Phi and Epsilon-Sigma. the firm. Mr. Austin’s prac- tice involves business law, commercial real estate,
2282 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 unson & Co. PC of Roye and Mr. Staine gradu- the Abu Dhabi Judicial MEdmond announces ated from the OU College of Department. M. Chase Ritter as an associ- Law. Mr. Hutson is a gradu- on Powers ate attorney. His practice ate of OCU School of Law, of Edmond involves oil and gas law, real and Ms. Sellars graduated Drecently presented a property taxation and com- from Rutgers School of Law. seven-week class titled mercial law. He is a graduate Mr. Albert, Mr. Hutson, Ms. “Liberty & Freedom,” at the of OCU School of Law. Roye, Ms. Rughani and H&H Gun Range. The class Mr. Staine are based in the covered the Declaration of rett A. Rutherford joined firm’s Oklahoma City office, Independence, the 28 princi- BBest & Sharp in Tulsa. His while Ms. Sellars is in the ples of freedom used by practice involves medical Tulsa Office. the Founders to structure malpractice defense, general the Constitution and the insurance defense litigation American Revolution. and municipality. Mr. Ruther- Compiled by Jenefar de Leon ford is a graduate of the TU College of Law. How to place an announce- ndrew R. Schroeder has ment: If you are an OBA Ajoined Palmer Wantland member and you’ve moved, in Oklahoma City. His prac- become a partner, hired an tice involves corporate and associate, taken on a part- business planning for closely ner, received a promotion held entities, estate planning, awnee attorney, activist or an award or given a talk taxation, finance and real Pand author Walter R. or speech with statewide or estate. Mr. Schroeder is a Echo-Hawk presented his national stature, we’d like to graduate of OCU School book titled, In the Courts hear from you. Information of Law. of the Conqueror: The 10 selected for publication is printed at no cost, subject to he Law Office of Cindy Worst Indian Law Cases Ever Decided, at a book talk Sept. editing and printed as space TAllen PLLC of Norman permits. Submit news items announces Arlette Srouji as 21 at the Oklahoma Heritage Association Museum. (e-mail strongly preferred) in an associate counsel. She is a writing to: graduate of the OU College erbert Joe of Dallas, of Law. Her practice involves HTexas, was retained as Melissa Brown international adoption and a forensic audio and voice Communications Dept. immigration law. expert for the Abu Dhabi Oklahoma Bar Association Judicial Department of the P.O. Box 53036 rowe & Dunlevy of Oklahoma City, OK 73152 United Arab Emirates. He Oklahoma City announc- (405) 416-7017 C testified as a forensic expert es Jay Albert, Allen Hutson, Fax: (405) 416-7089 or witness about his results on N. Georgeann Roye, Amy E-mail: [email protected] Sellars and Christopher an on-site analysis for the Public Prosecution Office of Articles for the Nov. 6 issue Michael Staine as it newest must be received by Oct. 18. associates. Mr. Albert, Ms.
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2283 IN MEMORIAM
rudence Mae Little of served on the board for director and two-term PMadill died May 22. She the Oklahoma Council on president of the Oklahoma was born Nov. 16, 1942, in Research and Graduate Criminal Defense Lawyers Clinton, Iowa. She graduated Education, the Women’s Association and founder of from Wellesley College with Foundation of Oklahoma, the Tulsa Criminal Defense honors and a B.A. in econom- the Oklahoma Arts Institute, Lawyers Association. He ics in 1965. She went on to the Wellesley College Club of served as a state coordinator receive her J.D. from the Uni- Dallas and the University of for the National Organization versity of Oklahoma College Oklahoma Alumni Associa- for the Reform of Marijuana of Law in 1968. She began her tion. Memorial contributions Laws. Mr. Martin was a con- career working for Attorney may be made to the Okla- tributor writer for Uptown General G.T. Blankenship in homa School of Science and News in Tulsa under the Oklahoma City. Ms. Little Mathematics Foundation, pseudonym Debonus Demen- then returned to Madill to 1141 N. Lincoln Blvd., Okla- tis. As Debonus Dementis, he practice law. She was homa City, 73104; or the Fran was selected Tulsa’s favorite involved in the building of Drummond Fund, P.O. Box newspaper humorist in The the Fran Drummond Day 247, Madill, 73446. Best of Tulsa’s readers’ poll Care Center and the expan- for Uptown News. He enjoyed harles Rabon Martin sion of the Madill City of baseball, tennis, photography, Library. In 1985, she received CTulsa died Aug. 27. He competitive diving and his the Marshall County Citizen was born July 27, 1944, in ‘57 Chevy. Memorial contri- of the Year. She was then Tulsa. He grew up in Brook- butions may be made to the appointed by former Gov. side and attended Cascia Hall American Cancer Society or Henry Bellmon as a founding Preparatory School. He grad- the Rabon Anthony Martin member of the Oklahoma Eth- uated from the University of Educational Trust Fund ics Commission. Ms. Little Tulsa College of Law in 1968. in Tulsa. He was a charter member,
2284 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 CLASSIFIED ADS
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Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2285 POSITIONS AVAILABLE POSITIONS AVAILABLE LESTER, LOVING & dAVIES PC, an AV-rated law ASSISTANT ATTORNEY GENERAL, LITIGATION SEC- firm, seeks an associate with minimum 5-7 years liti- TION. Licensed attorney with 5 - 8 years experience. gation experience. Send resume to Lester, Loving & Must be licensed in all of Oklahoma’s Federal district Davies PC, 1701 South Kelly Ave., Edmond, OK 73013. Courts, have a good working knowledge of the Federal and State Rules of Civil Procedure. Excellent research SECREST HILL BUTLER & SECREST, an AV-Rated in- and writing skills. Requires use of WordPerfect. See web- surance defense firm, is seeking an associate with 5+ site www.oag.ok.gov for more details. Send resume and years of experience. Emphasis on legal research, writ- writing sample to W.A. drew Edmondson, Attorney ing and litigation. Experience in employment law an General, 313 N.E. 21st St., Oklahoma City, OK 73105, or asset. Salary to be commensurate with experience. All e-mail [email protected]. Salary range commen- applications will remain confidential. Contact Joe Pick- surate with experience in accordance with the office pay ard at [email protected] or (918) 494-5905. scale. EOE. SMALL LAW FIRM HAS A POSITION AVAILABLE for an attorney with 4-8 years of litigation experience. This TRIAL ATTORNEY — COMMERCIAL/BUSINESS — position will involve specialized litigation in the field of OKLAHOMA CITY: Private firm seeks 10+ years or more eminent domain. Qualified candidate must have exten- trial attorney; Employment or Securities Litigation pre- sive litigation experience. To be considered, candidate ferred, other business/commercial experience accepted, must also possess experience in drafting motions, briefs must have 1st chair jury trial and federal court experi- and conducting all phases of pretrial discovery. Please ence. 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DOBBS & MIDDLETON, Staff Counsel for Farmers Candidate will represent the interests of the state of since 1993, seeks an associate with 2-5 years of litiga- Oklahoma in civil enforcement cases in federal and tion experience, including 1st chair trial experience. state court, also some criminal prosecutions. The posi- Candidates must have good written, verbal, people tion requires some complex research and writing. Prior and computer skills. Experience in insurance defense prosecutorial experience and/or experience with an asset. The position requires some same day in-state healthcare fraud or medical issues preferred. See web- travel. The ideal candidate will assume an immediate site at www.oag.ok.gov for details. Send resume and case load with increasing responsibilities. Farmers of- writing sample to W.A. drew Edmondson, Attorney fers an excellent starting salary and benefits package General, 313 N.E. 21st St., Oklahoma City, OK 73105. and is an equal opportunity employer. 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2286 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010 • AV® Martindale-Hubbell Rating, the highest rating for ethics and competency • 38 years experience in handling only personal injury cases • Practice limited to Catastrophic Injuries • Many successful multi-million dollar verdicts and settlements • Recognized on national television in the U.S. and Great Britain • Recognized in Time, Star, TWA in Flight, and other magazines • Recognized in newspapers in the U.S., Japan, and other countries • Licensed to practice in Oklahoma, Texas, Michigan and Pennsylvania • Member Oklahoma Trial Lawyers Association and American Association for Justice (formerly Association of Trial Lawyers of America)
Vol. 81 — No. 27 — 10/9/2010 The Oklahoma Bar Journal 2287 THE BACK PAGE
Farewell to a Mentor By R. Steven Haught
Recently while attend- was an excellent attor- ing a Thunder basketball ney, he was a difficult game, the announcer partner. asked: “Did a teacher I did not hear from make a big impact on him after that, but after your life?” At first I he retired, several of his could not think of any- clients called me and one in particular. Think- said he had recommend- ing back on my teachers, ed me to take over their I could say that my first legal needs. I always grade teacher changed meant to call him to my life. My mother was thank him for being my my first grade teacher teacher, but somehow I but changed my life Full of the kind of played a game in which never got around to it. more as a mother than indignation that only a he would always permit as a teacher. 25-year-old law student me to examine some wit- Recently I received a can muster, I traveled to nesses or give an open- call telling me that he I certainly benefitted had died. I called several from having good teach- the law firm and asked ing or closing but he to speak with the hiring wouldn’t tell me what I other lawyers he had ers in undergraduate and mentored to tell them law schools, but “big attorney. I was told that was going to do. Then in he was not in, and I the midst of trial, he about the funeral. None impact”? That was a wanted to attend, and I high standard. All of a responded that I would would turn to me with a wait until he arrived. I mischievous smile and did not blame them. He sudden the answer came was a difficult man, and to me: the teacher who waited in the lobby for say: “Do you want to do a couple of hours and this?” I always said yes. had even sued me along changed my life didn’t with all of the other work at a school. It was eventually was told that He taught me the my future employer partners when he was the man who gave me value of preparation. He expelled from the firm. my first job as a lawyer would see me now in taught me to start with and taught me how to his office. He gave me a the trial brief and jury Nonetheless I wanted practice law. stern look and said: “I instructions, to work to pay my last respects. hear that you demanded Arriving at the funeral Our first meeting was backwards in order that to see me and would not everything we did at the service early, I took a unusual. I had heard leave until you did so. Is seat on the second row, from a friend that the beginning would lay the that right?” “Yes,” I hesi- groundwork for the trial just behind the family law firm in question was tantly replied. Then he seating. I searched the looking for a lawyer in to come. He taught me to grinned and said: “Good. be honest and profes- crowd for other lawyers the litigation depart- I want someone who is who had worked with ment. I immediately sent sional with opposing aggressive. When can counsel, judges and him and found only one. a letter and resume to you start?” my future mentor. I court personnel. As the service con- received no reply. I My mentor followed a We had a good run cluded, I leaned forward, called on several “sink or swim” training together but then he was as close to the casket as occasions to set up methodology. I tried my voted out of the firm by space would allow, and an appointment but first solo jury trial two a narrow vote of the finally, belatedly, said my calls were never weeks after I was sworn firm’s partners after a farewell to the teacher returned. Then I decided in and second-chaired very spirited altercation who changed my life. on a strategy that would my mentor in many fed- at a partners’ meeting, Mr. Haught practices in either be successful or eral trials before taking with me being in the Oklahoma City. disastrous. over the lead chair. He minority. Although he
2288 The Oklahoma Bar Journal Vol. 81 — No. 27 — 10/9/2010