Education Law

ALSO INSIDE: Cryptocurrency Update • New Member Benefits OBA Website to Be Upgraded • Board of Governors Vacancies

Volume 89 — No. 20 — August 2018

EDUCATION LAW

contents August 2018 • Vol. 89 • No. 20

THEME: Education Law Editor: Luke Adams FEATURES PLUS 6 Navigating FERPA to Access 40 Financial Institutions and Commercial Law Student Records Section Note: Update to Cryptocurrency Article By Jessica Sherrill By Fred H. Miller 10 A Primer on Disability Accommodation 45 Six New OBA Member Benefits Focus on in Higher Education Practice Management By Michael J. Davis By Jim Calloway 18 Student Protests in the Era of 46 New www.okbar.org: More Than Just a Facelift ‘Parkland’ and Black Lives Matter By Laura Stone By Brandon Carey 48 A Lawyer’s Personal Story: An Illness No 24 The Legal Issues Associated With a One Talks About Teacher Work Stoppage By Julie L. Miller, Rooney Virgin 50 OBA Nominating Petitions and Board and Kim Bishop of Governors Vacancies 28 Suspension and the Special 51 Photo Highlights: Sovereignty Symposium XXXI Education Student By David Blades 34 Legal Representation of a Public School District in Oklahoma By Julie L. Miller, Jessica Sherrill, rooney Virgin, Kim Bishop and Brandon Carey DEPARTMENTS 4 From the President 54 From the Executive Director PAGE 45 – New Member Benefits 56 Law Practice Tips 60 Ethics & Professional Responsibility 62 Board of Governors Actions 69 Oklahoma Bar Foundation News 72 Young Lawyers Division 74 For Your Information 77 Bench and Bar Briefs 79 In Memoriam 81 Editorial Calendar 82 What’s Online 88 The Back Page PAGE 48 – An Illness No One Talks About From The President

You Can Be A Superhero

HO IS YOUR FAVORITE SUPERHERO? I find it In Oklahoma a large percentage of the Wa challenge to select just one: Superman, Batman, population has unmet legal needs because Supergirl, Captain America, Wonder Woman, Power they are unable to find or afford legal assis- Rangers, Teenage Mutant Ninja Turtles, X-Men, Avengers tance. Legal Aid Services of Oklahoma must or the Incredibles. A superhero is defined as “a fic- turn away more than 50 percent of those who tional hero having extraordinary or superhuman pow- qualify for its services. As a result, many ers; also: an exceptionally skillful or successful person.”1 low-income Oklahomans face an impossible Based on this definition, all attorneys have earned the choice – try to represent themselves or sim- title of superhero. As attorneys, we are exceptionally skillful ply walk away from the relief and justice to based on our knowledge of the law. When is the last time which they would otherwise be entitled. As you put on your “superhero” cape or costume? The OBA is attorneys, we have the exceptional skills to here to help! You can proudly help our fellow Oklahomans. claim your superhero status Thank you to the 99 Oklahoma by registering as a volunteer superheroes who have attorney for Oklahoma Free I believe we are blessed already registered and Legal Answers. participated in Oklahoma The Oklahoma Access to have the opportunity to Free Legal Answers! to Justice Commission, During the month of American Bar Association practice law, and we should May, 1,263 questions were and the OBA have joined submitted with 35 percent forces to offer an interac- in the category of family/ tive website to provide free give back to our community divorce/custody, 13 percent legal information to needy in the category of landlord/ Oklahoma citizens. The best and state by helping those tenant and other categories news for your new super- included wills/inheritance, hero status is that you can who are less fortunate. debts, bankruptcy, personal help fellow Oklahomans injury, contracts, employment/ without leaving your office, and you remain anonymous labor law and many other areas of law. (always important for a superhero). Register online as a Oklahoma Free Legal Answers offers all volunteer attorney, aka superhero, by going to Oklahoma. attorneys the opportunity to flex those freelegalanswers.org and clicking on Volunteer Attorney legal superhero muscles! Registration. It’s really easy. I believe we are blessed to have the Here is how it works. Qualifying opportunity to practice law, and we should Oklahomans post civil legal questions give back to our community and state by on the website and receive basic legal helping those who are less fortunate. Let’s information and advice from approved double the number of the current volunteer volunteer attorneys. All attorney vol- attorneys in the next 30 days! I challenge unteers are covered by a professional you to register TODAY as a volunteer. Next, liability insurance policy purchased you can order your new superhero costume by the ABA. You select the areas of law – hopefully, it is eligible for Amazon Prime where you can exercise your super- – and then start answering legal questions. powers (answering a legal question). By giving just a little of your time, you will You choose to accept only the ques- be offering Oklahomans a positive super- tions for which you feel comfortable hero image of our legal profession. providing help and then you have 24 President Hays practices in Tulsa. hours to post an answer. Most attor- ENDNOTE [email protected] neys compose a response in less than 1. Merriam-Webster.com. Merriam-Webster, n.d. Web. 2 918-592-2800 half an hour. July 2018.

4 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2018 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Volume 89 — No. 20 — August 2018 Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or JOURNAL STAFF BOARD OF EDITORS implied by publication. Advertisers are solely JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair responsible for the content of their ads, and Editor-in-Chief the OBA reserves the right to edit or reject [email protected] LUKE ADAMS, Clinton any advertising copy for any reason. Legal articles carried in THE OKLAHOMA CAROL A. MANNING, Editor CLAYTON BAKER, Vinita BAR JOURNAL are selected by the Board of [email protected] Editors. Information about submissions can AARON BUNDY, Tulsa MACKENZIE SCHEER be found at www.okbar.org. Advertising Manager PATRICIA A. FLANAGAN, Yukon [email protected] BAR CENTER STAFF AMANDA GRANT, Spiro John Morris Williams, Executive Director; LACEY PLAUDIS Gina L. Hendryx, General Counsel; Joe Communications Specialist C. SCOTT JONES, Oklahoma City Balkenbush, Ethics Counsel; Jim Calloway, [email protected] Director of Management Assistance Program; ERIN MEANS, Moore LAURA STONE Craig D. Combs, Director of Administration; Communications Specialist SHANNON L. PRESCOTT, Okmulgee Susan Damron, Director of Educational [email protected] Programs; Beverly Petry Lewis, Administrator LESLIE TAYLOR, Ada MCLE Commission; Carol A. Manning, Director of Communications; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine Ogden, Steve OFFICERS & Sullins, Assistant General Counsels BOARD OF GOVERNORS Les Arnold, Gary Berger, Debbie Brink, Melody Claridge, Cheryl Corey, Ben Douglas, KIMBERLY HAYS, President, Tulsa; RICHARD Dieadra Florence, Johnny Marie Floyd, Matt STEVENS, Vice President, Norman; CHARLES W. CHESNUT, Gayle, Suzi Hendrix, Debra Jenkins, Rhonda President-Elect, Miami; LINDA S. THOMAS, Immediate Past Langley, Jamie Lane, Durrel Lattimore, President, Bartlesville; MATTHEW C. BEESE, Muskogee; JOHN W. Ramey McMurray, Renee Montgomery, COYLE III, Oklahoma City; MARK E. FIELDS, McAlester; KALEB K. Whitney Mosby, Lacey Plaudis, Tracy Sanders, HENNIGH, Enid; BRIAN T. HERMANSON, Ponca City; JAMES R. Mackenzie Scheer, Mark Schneidewent, Laura HICKS, Tulsa; ALISSA HUTTER, Norman; JAMES L. KEE, Duncan; Stone, Margaret Travis, Krystal Willis, Laura BRIAN K. MORTON, Oklahoma City; JIMMY D. OLIVER, Stillwater; Willis, Jennifer Wynne & Roberta Yarbrough BRYON J. WILL, Yukon; D. KENYON WILLIAMS JR., Tulsa; Oklahoma Bar Association 405-416-7000 NATHAN D. RICHTER, Mustang, Chairperson, OBA Young Lawyers Division Toll Free 800-522-8065 FAX 405-416-7001 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Continuing Legal Education 405-416-7029 a month in January, February, March, April, May, August, September, Ethics Counsel 405-416-7055 October November and December and bimonthly in June and July by General Counsel 405-416-7007 the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma Lawyers Helping Lawyers 800-364-7886 City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Mgmt. Assistance Program 405-416-7008 Okla. and at additional mailing offices. Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Subscriptions $60 per year except for law students registered with Oklahoma Bar Foundation 405-416-7070 the OBA and senior members who may subscribe for $30; all active members included in dues. Single copies: $3

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THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 5 6 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Education Law Navigating FERPA to Access Student Records By Jessica Sherrill

S ATTORNEYS, WE KNOW THE IMPORTANCE OF DOCUMENTATION. When it Acomes to matters involving children, it is common for educational records to be utilized. It is important to understand the application of Oklahoma law1 as well as federal law, specifically FERPA, when it comes to which records are deemed as educational records versus directory information. Some records are available to any patron while others require parental consent,2 and some are only accessible via court order.

This article will delve into each have access to review, request cannot itself waive any student’s area and provide you with guid- records be amended and control FERPA protection as it is not the ance on which records might be disclosure to other persons. school that is protected, rather it is more helpful than others in refer- FERPA can only be violated by the student’s privacy in mind. In ence to cases involving children. an agent or employee of the public some cases, the school could redact school district. For example, if a confidential information in order to WHAT IS FERPA? school district employee records a release certain documents, but this The Family Educational Rights student football game and a patron is a slippery slope. and Privacy Act (FERPA)3 was records the same game, the public FERPA does not protect all enacted in 1974 and governs access school could not release the video records created and/or maintained to confidential information of pub- through a directory information by the public school, just those lic educational agencies and institu- request, but the patron could share deemed educational in nature. tions that receive U.S. Department it with anyone and everyone. Noneducational student records are of Education funding. Certain considered “directory information.” private schools may not enjoy WHAT RECORDS ARE the protection of FERPA because PROTECTED UNDER FERPA? WHAT IS DIRECTORY no federal funding is received. FERPA protects and makes INFORMATION? However, policy may still preclude confidential all “educational” FERPA allows disclosure to any disclosure to anyone other than the records (or personally identifiable third party of student “directory parents and legal guardians. information contained therein). information,” which is information In layman’s terms, FERPA Educational records are not just generally not deemed to be harmful protects against widespread confined to paper documents as or an invasion of a student’s privacy disclosure of public school stu- they also encompass videos, audio if released. Each school district dents’ attendance records, videos, recordings, computer files, photos must adopt and maintain a policy5 report cards, test scores and more. and any other type of media. The determining what is included in Outside of public school employ- public school is prohibited from directory information; this policy ees who need to know student releasing these records unless per- varies district by district. information for educational mitted within FERPA or by consent Typically, directory information purposes, only the parents, legal of the parents, legal guardians or includes student name, address, guardians and eligible students4 eligible students. A public school parents’ or legal guardians’

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 7 To comply with a judicial order or lawfully issued subpoena, Appropriate officials in cases of health and safety emergencies, and State and local authorities, within a juvenile justice system, pursuant to specific state law.

OBTAINING RECORDS FROM A PUBLIC SCHOOL An attorney seeking student records would best start by reviewing the school district’s policy on directory information. Again, directory information would provide general student information that may or may not be helpful to the attorney’s case. It names, activities and sports, and FERPA EXCEPTIONS is best to follow the process pro- could include more, such as date FERPA permits disclosure vided by administration to obtain and place of birth, weight, honors of educational records without records, and it might be helpful to and more, dependent upon the parental consent through certain review the policy and procedures 7 school district’s policy. In a practi- exceptions, including but not on open records requests as well. cal sense, it is directory information limited to: If more information is sought, that allows for a student yearbook School officials with legiti- such as student attendance and with pictures of teams, groups and mate educational interest, tardy records, student grades, honors. Anyone can request and Other schools to which a individualized education plan obtain directory information as student is transferring, documents or teacher and admin- described in school district policy Specified officials for audit istration records about student for students without notification or or evaluation purposes, behavior, then the attorney will further authorization of the parents Appropriate parties in con- want to determine next steps in or legal guardians. nection with financial aid accordance with FERPA. However, the school district to a student, As only the parents, legal must annually notify the par- Organizations conducting guardians and eligible students can ents, legal guardians and eligible certain studies for or on consent to disclosure outside the students of their right to opt out behalf of the school, public school, an attorney for any of disclosure of directory infor- Accrediting organizations, of those parties should first seek mation, which would deny access written consent for such disclosure to anyone who requested it, other than the parents or legal guardians themselves. This would also preclude the use of names and photos on the school’s website, Facebook page and yearbook, etc. It is important to know that our It is best to follow the process provided by state law protects directory information of students in the custody of administration to obtain records, and it might be state child protective services6 or foster care. Student names, photos and helpful to review the policy and procedures on activities are to be kept confidential for the protection of the students. open records requests as well.

8 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL to provide to the school district. It is important to know that both parents and all legal guardians have access to student records and can determine who else could have access. More specifically, each parent and/or legal guardian or eligible student can authorize disclosure of FERPA-protected information to other parties not otherwise authorized. An eligible student could even prohibit disclosure to her parents should she so decide. It does not matter which parent has custody, so long as a parent maintains parental rights, access to records is absolute. Conversely, a custodial parent cannot prohibit disclosure to a noncustodial parent or authorized legal guardian. A written authorization of disclosure from a parent, legal guardian or eligible student would be more successful than a subpoena. Absent this, a court order would also provide access.

ABOUT THE AUTHOR Jessica Sherrill is director of unemployment for the Oklahoma State School Boards Association. She is a member and past president of the Oklahoma School Board Attorneys Association. She is a graduate of the OCU School of Law. She is currently Rotary District 5750 governor and member of OKC Midtown Rotary.

ENDNOTES 1. 70 O.S. §24-101.4; 51 O.S. §24A.16. 2. Parental consent is replaced with legal guardian consent, when applicable. 3. 20 U.S.C. §1232g. 4. Eligible students are those who have reached the age of 18 or are attending school beyond high school level. 5. 51 O.S. §24A.16. 6. Oklahoma Department of Human Services (aka OKDHS). 7. 34 CFR §99.31.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 9 Education Law Disability Accommodation in Higher Education By Michael J. Davis

TUDENTS WITH DISABILITIES WHO ATTEND INSTITUTIONS of higher education Shave been protected against discrimination on the basis of their disability since the passage of the Rehabilitation Act of 1973.1 Since then, other laws such as the Americans with Disabilities Act of 1990,2 and a set of amendments that strengthened its protections in 2008,3 have radically changed the landscape of inclusion and access at colleges and universities across the country. Because of the complexities and obligations of these laws, disability accommodation has become a full-fledged profession in higher education, with most institutions having designated coor- dinators for disability services or similar professional positions on their campus as a central resource for students who request accommodations or have difficulty with access barriers.4

Despite the ramping up of ser- institutions more welcoming is a to coast.7, 8 The later passage of the vices and resources by institutions, noble public service with plenty Americans with Disabilities Act of disability-related discrimination of room to go above and beyond 1990 (ADA) added extra clarity and complaints, including complaints in the interest of equal access and rigor to the legal floor for inclusion about unsatisfactory or inadequate basic fairness. of people with disabilities, and accommodation, remain the sec- both laws have since evolved in ond largest category of complaints INTRODUCTION important ways. Title II of the ADA lodged with the U.S. Department Section 504 of the Rehabilitation applies to all state and local gov- of Education Office of Civil Rights Act of 1973 states, “No other- ernment entities, including public (OCR) – totaling 5,936 disability- wise qualified individual with a institutions of higher education, related complaints in FY 2016 disability in the United States ... and Title III of the ADA applies to alone.5 Additionally, both major shall, solely by reason of his or places of public accommodation, disability discrimination laws cre- her disability, be excluded from which includes private institutions ate a private right of action.6 the participation in, be denied the of higher education. There is a Since the potential liability can benefits of, or be subjected to dis- specific exemption from the ADA be significant and the ordeal of an crimination under any program or for postsecondary institutions that OCR investigation or compliance activity receiving federal financial are controlled by religious organi- review can be intense, college and assistance.” Since federal financial zations, but no such exemption for university administrators are well- aid, obtained by students through the applicability of Section 504. advised to audit their institution’s completion of the Free Application In 1998, a new Section 508 was training, policies and procedures on for Federal Student Aid (FAFSA) is added to the Rehabilitation Act9 accessibility and accommodation. routed to students through nearly requiring recipients of federal funds More importantly, these statutes are every college and university in to make their electronic information merely the legal floor for inclusion the country, this law binds almost and technology accessible to people and access. Making our educational all accredited colleges from coast with disabilities, and the ADA was

10 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL amended in 2013 to protect persons as a template in the drafting of the reasonable modifications, of fulfill- with a broader array of disability latter in order to avoid conflict. The ing the essential requirements of impairments than the original inter- ADA, importantly, tackles far more the program. Institutions can still pretation of the statute. challenges than Section 504 by have academic entrance exams or These and similar laws are applying its protections beyond the admissions requirements, merely, crucial because of the sizable post- federal government and its fund- those admission requirements secondary education gap between ing recipients, to nearly all areas of must not have the effect of disqual- disabled and nondisabled persons. American public life including pub- ifying persons because of their According to the Bureau of Labor lic and private places that are open disability. A school should not ask Statistics, 16.4 percent of people with to the general public. Because of applicants if they have a disability, a disability have completed a bache- their largely concurrent nature, and as such an inquiry is irrelevant to lor’s degree, compared with 34.6 per- simultaneous applicability to many any legally permissible admission cent of people without disabilities.10 entities, courts usually interpret pro- criteria. On the other hand, it is Despite being wholly different visions in Section 504 consistently perfectly permissible for an insti- statutes, Section 504 and the ADA with provisions in the ADA. tution to elicit students to disclose, have largely overlapping language after their admission, if they have and applicability to postsecondary WHAT IS A DISABILITY? a disability so that proper accom- institutions. A cursory reading In order to be protected against modations and auxiliary aids can of the statutes and their imple- discrimination an applicant or be put in place. No student should menting regulations will result student must be a “qualified indi- be required to disclose anything in in finding identically phrased vidual with a disability.”11 The term regard to a disability. definitions and expectations in “qualified” means a person with a The term “disability” is defined many sections, and this is largely disability who has the capability, as “...[A]ny person who (i) has a because the earlier law was used with or without the provision of physical or mental impairment

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 11 which substantially limits one or REASONABLE the modifications to practice, policy more major life activities, (ii) has a ACCOMMODATION or curriculum will fit the particu- record of such an impairment, or Institutions must make their lar circumstances so as not to give (iii) is regarded as having such an services accessible to people with a student any undue academic impairment.”12 Major life activities disabilities at no extra cost to those advantage, privilege or benefit – include a broad range of activities persons. This is best accomplished but merely to make the services such as caring for oneself, walk- through inclusive design of build- provided equally accessible. ing, standing, breathing, studying ings, curriculum and customer- The institution’s duty is to and concentrating, among many service processes – but even the provide reasonable and effective other normal human activities. most progressive inclusive design accommodation, but not necessarily Major life activities also include strategies sometimes fall short of the best possible accommodation. producing normal cells and equitable inclusion. Reasonable If more than one accommodation having a typically functioning accommodations, required under is similarly effective, the institu- circulatory system, endocrine both Section 504 and the ADA, are tion can choose from among them system, etc. If the function of any implemented for the purpose of even if they opt for one the accom- of these life activities is “substan- making services accessible. These modated person prefers the least. tially limited” by a physical or accommodations must be reason- Additionally, certain accommoda- mental impairment, then they able and effective, and should be tions may be opted against if they are considered a person with a arrived at through an interactive create an “undue burden,” i.e., “a disability under the law. The process between the institution and significant difficulty or expense.” Department of Justice says that the the person with a disability, so that As a matter of course, OCR is phrase “substantially limits” shall the implemented accommodation always highly skeptical of any “be construed broadly, in favor of is custom tailored to the barriers undue burden rationale unless the expansive coverage.” The imple- created by the impairment (or by expense constitutes a sizable portion menting regulation itself states, a failure to inclusively design the of the school’s overall budget. To be “‘Substantially limits’ is not meant service in the first place). an undue burden, it is more helpful to be a demanding standard.”13 Reasonable accommodations to think in terms of impracticability This definition of disability can be significant and may include rather than mere difficulty. is so expansive as to surprise academic adjustments such as Importantly, schools have some who read the language. course substitution, or lengthen- the ability to designate certain Rest assured, this was the explicit ing the time period within which academic requirements that are intention of Congress. After the a degree must be completed. “essential to the instruction being Supreme Court ruling in Sutton v. Where reasonable, the college or pursued” and which cannot be United Air Lines, Inc.,14 which deter- university is expected to provide modified, including academic mined that impairments under the auxiliary aids to students who requirements relating to licensing definition should only be consid- request accommodation. These requirements that are embedded ered with mitigation, and the rul- aids may include alternative format in the program.16 Schools are not ing in Toyota Motor Manufacturing, textbooks or sign language inter- ever expected to be required to Kentucky, Inc. v. Williams,15 which preters. Accommodations are also lower their academic standards, determined that the definition of to be made available outside the nor is a reduction of academic disability needed a “demanding” academic context for any other rigor expected to form any part standard, Congress reacted to services the institution provides, or parcel of an accommodation. loosen the definition so more peo- such as enrollment advice, mental It is important that the rationale ple, and indeed more disabilities, health counseling and involvement behind which academic require- would be covered. In the pre-2008 in registered student organiza- ments are “essential” be rather interpretation of the definition, it tions and activities. A reasonable ironclad, as both OCR and the was not at all clear that students accommodation request can be courts can view such designations with epilepsy, HIV/AIDS, diabetes as simple as permission to use a as merely pretextual, or post-hoc or even cancer met the require- laptop computer to take notes, or as assertions.17 ments for coverage under the law. complex as moving whole classes For example, a student with In the post-2008 interpretation, into the same building to reduce dyscalculia, a learning disability institutions are fully expected to the distance a certain student must that inhibits cognitive function err on the side of inclusion. walk between classes. In each case, in relation to mathematics, might

12 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL The Association on Higher Education and Disability developed a set of guidelines in 201218 that are helpful for disability accommodation professionals The documentation a college or university in determining what types of documentation are appropriate requests from a person with a disability in under varying circumstances. Individuals who have a disability relation to an accommodation request must be that is apparent or obvious should not need any paper documentation at all, as the “documentation” reasonable and limited to the need to understand in their case is readily observable. For example, an amputee need the nature of the impairment that necessitates the not obtain a letter from a doctor proving she has had her limb accommodation request or auxiliary aid. removed, as understanding the nature of the impairment and the barriers created by the impairment require no such proof. An institu- ask for a course substitution for that requires documentation to be tional representative receiving that a mandatory general-education requested or obtained in order for a person’s accommodation request algebra class for a less math-reliant person with a disability to show that can reasonably conclude that all class with similar curricular out- they are eligible for the protections physical manipulations that could comes such as a logic class. Many of Section 504 or the ADA. While have been accomplished with that factors come into play here. The institutions may request or even limb are now mitigated, and that institution would be on stronger require reliable documentation, they the requesting individual may ground in asserting algebra was should avoid hard and fast designa- indeed be in need of note-taking “essential” to the curriculum if tions of what type of documentation assistance, extended time for the the student were an engineering meets the threshold for making an completion of exams or other major, as opposed to a creative accommodation request. potential modifications or aids. writing major. It is also helpful to look at what the institution has held out, prior to the request, as essential. Does the school of business advertise an emphasis on financial and accounting skills, and/or market its graduates to the workforce based on this curricular emphasis? If so, then those classes are far more defensible as “essential” parts of the curriculum.

DOCUMENTATION CRITERIA The documentation a college or university requests from a person with a disability in relation to an accommodation request must be reasonable and limited to the need to understand the nature of the impairment that necessitates the accommodation request or auxiliary aid. There is no law or regulation

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 13 ANIMALS It is important to distinguish between the two major types of protected animal classifications in accessibility law. “Service animal” is a term of art, and while the phrase is sometimes thrown around with abandon, it has a specific legal meaning in certain contexts. The U.S. Department of Justice, which is responsible for regulating Title II and Title III of the ADA (the sections that apply to government agencies and public accommodations), specifically states that a service animal is only a dog that is individually trained to do work or perform tasks for a person with a disability.19 This category of accessibility animal has the broadest protection, and must generally be permitted to accompany people with disabilities anywhere members of the public are allowed to go. Among many other possible functions, these animals include the traditional seeing-eye dog for the blind, dogs trained to alert individuals to an imminent seizure or dogs trained to intentionally lick, nuzzle or nudge individuals with post traumatic stress disorder to calm a panic attack. Because of their broad protection as service animals, persons with disabilities are not allowed to ask about refused for allergy reasons, and may bring these animals into hos- the person’s disability, about people with service animals can- pital rooms, cafeterias, classrooms, how recently the dog received not be isolated or excluded from dormitories or anywhere they training and are not permitted activities or services. generally need the accompaniment to require that students receive Beyond Title II and III of the of the individually trained dog. permission from the university ADA, animals used in the context They are expected to be leashed for the presence of the animal. In of disability assistance, accom- unless the tether would impair the fact, regulations only permit for modation or emotional support dog from performing its function, two questions to be asked when have far less specific definition. and the only limitation on their the service the animal provides For example, the Air Carrier Act presence is if the sterility of the is not apparent: 1) is the dog a and the Fair Housing Act use the environment necessitates the service animal required because phrase “assistance animal” with exclusion of the service animal of a disability, and 2) what work minimal added guidance. Even (such as surgical rooms or certain or task has the dog been trained a “service animal” in the Title I scientific laboratories). to perform. Institutions may not (employment) context of the ADA, Institutional policy about ask for documentation or request which is regulated by the EEOC service animals should instruct that the disabled person make the instead of the Department of employees about the broad pro- animal demonstrate its training. Justice, is a more open-ended or tections for service animals. Staff The animals’ presence cannot be fluid designation. This makes the

14 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL creation of college and university to determine the nature of the negative way. Usually the pres- policies fairly maddening, as each disability related impairment, to ence of an animal is not particu- year it seems a new legal case understand how the presence of larly disruptive or distracting. results in a determination that the animal could mitigate any The second pathway is a student adds more nuance and complex- access barriers and to come to a request for having an assistance ity to this rapidly shifting area of final accommodation plan. This animal as a traditional disability disability law. Nonetheless, having process may, if the nature of the accommodation. The Rehabilitation a well-developed and updated pol- disability is not apparent, include Act of 1973 does not have the same icy will assist institutions of higher a proper request for documen- narrow definition of “service ani- education greatly in this area. tation about the disability from mal” as Title II and III of the ADA, There are three pathways for the employer. If there are equally meaning that it is still possible assistance animals on college cam- effective alternative accommo- for a student to request the pres- puses. These animals, to be specific, dations, the employer is free to ence of an animal as an auxiliary are animals that may or may not be choose from among those options. aid to mitigate barriers created a dog, and might not be individually Common instances of reason- by their disability. In these cases, trained to perform a task or function able accommodation that involve documentation can be requested by for a person with a disability, but animals usually revolve around the institution, and if the disability whose presence may nonetheless anxiety reduction and emotional is confirmed, the institution may have an accommodating effect for a support. Animals (usually with grant the presence of the animal person with a disability. a soft coat of fur like a cat or as a reasonable accommodation. The first pathway is through dog) can operate as a cathartic Importantly, in this context the insti- Title I of the ADA, the employ- and calming distraction for an tution may ask about the animal’s ment-related section of the law, as employee who is prone to panic training, about how it interacts with many students on college campuses attacks, intense anxiety-related the disabled person and may also also have on-campus jobs, includ- episodes or depressive episodes. explore other effective alternatives ing students who receive work- Emotional support animals are as a reasonable accommodation. study money through their federal more common in office-style The third pathway has only financial aid. Because the EEOC has workplaces as opposed to manual recently become clear, as a result of no specific definition of a service labor and retail. Employers can litigation involving the University animal, the process for requesting deny an accommodation request of Nebraska at Kearney.20 In 2011, the presence of the animal as an if approving it would create an the Department of Justice sued employee disability accommoda- undue hardship such as mak- that institution, alleging their tion takes the same form as any ing the workplace unreasonably denial of accommodating a stu- other accommodation request. The dangerous, disrupting business dent who requested an emotional employer is required to engage the or if it fundamentally alters support animal in her campus employee in an interactive process the nature of the business in a dormitory was a violation of the

There are three pathways for assistance animals on college campuses. These animals, to be specific, are animals that may or may not be a dog, and might not be individually trained to perform a task or function for a person with a disability, but whose presence may nonetheless have an accommodating effect for a person with a disability.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 15 Fair Housing Act. Initially it was one online course as part of their the least equipped to receive their not clear that the FHA applied to higher education experience, which education or services in the web- dormitories, as the language of accounts for just over a quarter of based environment. Unfortunately, the act defined covered dwellings all students enrolled in colleges institutions of higher education as, “any building, structure, or and universities across the country have sometimes been slow to portion thereof which is occu- – a number that increases by about recognize this development. pied as, or designed or intended 4 percent each year.22 Additionally, Such well-resourced institutions for occupancy as, a residence by the experience outside the class- as the Massachusetts Institute one or more families.”21 However, room has become more web-based of Technology, the University of the FHA argues that a “family” as well, with students using digital California at Berkeley, Florida includes a single individual. Now search engines to find scholarly State University and Harvard that the FHA has been deter- research in peer-reviewed journals, University have found themselves mined to apply to college and online remote tutoring services on the receiving end of lawsuits university housing, this serves as becoming commonplace and pri- from students who, because of a yet another route for students with mary interaction with college and disability-related impairment, had disabilities to exercise. university services such as enroll- difficulty navigating their online ment, bill paying and graduation portals or academic curriculum. DIGITAL ACCESSIBILITY registration taking place through College and university attorneys The profusion of technology computer interfaces more often and administrators should require in course content delivery has than paper transactions. their information technology depart- been fundamentally changing the In this emerging digital educa- ments to become familiar with the accessibility priorities for higher tion environment, text magnifica- implementation of the Web Content education compliance profession- tion and video captioning functions Accessibility Guidelines (WCAG 2.0) als. As the number of online and can be just as important as wheel- developed by a nonprofit interna- hybrid classes increase, the primary chair ramps and handrails on the tional organization called the World Wide Web Consortium. While these guidelines did not originate from any federal regulatory agency, they have been adopted by OCR as the minimum standard for online information access for persons with disabilities. OCR is the primary regulatory body for disability access laws as applied to educational institutions. When OCR receives a complaint from a student alleging that an educational institution’s technology is inaccessible or otherwise does not meet the accessibility criteria, they are the agency that will investigate. Complainants also pre- serve a private right of action under the ADA and Rehabilitation Act that do not require the exhaustion of administrative remedies. The WCAG 2.0 guidelines are not by any means a low bar. The criteria, platform for the curriculum is analog campus. Where students among other things, require nontext shifting as well – from lectures with mobility impairments may content to be reduced to text, video to narrated videos, from class have found the traditional cam- captioning, contrast between text dialogue to web-based discussion pus difficult to navigate, now and background color, keyboard (as boards. Approximately 5.8 million students with visual and hearing opposed to only mouse) control of the students are now taking at least impairments often find themselves interface and a consistent navigation

16 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL outline across webpages. Part of the arrangements that are tailor fitted www.theatlantic. com/education/archive/2016/07/ goal of these guidelines is to permit to meet the barriers faced by the the-controversial-reason-some-religious- colleges-forgo-federal-funding/490253/ (last low- or no-vision individuals to nav- student as they navigate the school’s visited April 16, 2018). igate webpages or instructional con- services and curriculum. As institu- 9. 29 U.S.C. §794 (d). 10. “People with a disability less likely to have tent through the use of a verbal screen tions shift more of the curriculum completed a bachelor’s degree,” U.S. Department reader and without the need for into software-based delivery mecha- of Labor (2015), www.bls.gov/opub/ted/2015/ people-with-a-disability-less-likely-to-have- visual-only interactive controls such nisms they should resolve to update completed-a-bachelors-degree.htm (last visited as a mouse or even the screen itself. their web platforms to be accessible. April 11, 2018). 11. 29 U.S.C. §794. As an experiment to see whether In the persistently evolving world of 12. Id. your web interface is functional for disability law, it behooves adminis- 13. 29 CFR 1630.2. 14. Sutton v. United Airlines, 527 U.S. 471 (1999). the blind, try to control navigation by trators at all postsecondary institu- 15. Toyota Motor Manufacturing, Kentucky, Inc. using only the tab and return function tions to keep up-to-speed on these v. Williams, 534 U.S. 184 (2002). 16. 34 CFR 104.44. on your keyboard. You will imme- areas of civil rights equity and legal 17. Scott Jaschik, Blind Students and diately see how technology is built liability. Risk of a potential OCR Health Professions Iowa Supreme Court says chiropractic college discriminated against primarily for sighted individuals. investigation or civil litigation are blind student (2014), www.insidehighered.com/ OCR requires that any work- motivating factors, but nothing is news/2014/06/30/iowa-supreme-court-says- chiropractic-college-discriminated-against-blind- arounds built into the web interface as motivating as the potential that student (last visited April 16, 2018). be “equally effective” as traditional a student could withdraw because 18. Supporting Documentation Requests: Guidance on Documentation Practices, use or communication. In 2013, OCR they were unable to access an Association on Higher Education and Disability entered into a resolution agreement education to which they had a (2012), wp.stolaf.edu/asc/files/2012/11/AHEAD_ Supporting-Accommodation-Requests.pdf (last with the University of Montana after right of access. visited March 11, 2018). a complaint was filed about inacces- 19. Service Animals, ADA Requirements: sibility of digital and online informa- Service Animals (2011), www.ada.gov/service_ animals_2010.htm (last visited April 11, 2018). tion. One section of that resolution ABOUT THE AUTHOR 20. United States v. Univ. of Neb. at Kearney, agreement explains just how high of Michael J. Davis is the direc- 940 F.Supp. 2d (D. Neb. 2013). 21. 42 U.S.C. §3602(b). a bar is expected: “Equally effective tor of compliance and safety at 22. Online Report Card - Tracking means that the alternative format or Southeastern Oklahoma State Online Education in the United States, 2015, Online Learning Consortium (2018), medium communicates the same University in Durant. Since 2016, onlinelearningconsortium.org/read/online- information in as timely a fashion as he has served as Title IX coordina- report-card-tracking-online-education-united- states-2015/ (last visited April 16, 2018). does the original format or medium.” tor, equal employment opportunity This means that, generally, naviga- officer and as a member of the tion of web platforms by the disabled institution’s Executive Team. should be just as easy or nearly as easy as by individuals without ENDNOTES impairments. Because of the diffi- 1. 29 U.S.C. §701 et seq. 2. 42 U.S.C. ch. 126 §12101 et seq. culty of achieving this, colleges and 3. Fram, David K. (2008). “The ADA Amendments universities are best advised to start Act: Dramatic changes in coverage,” Hofstra Labor & Employment Law Journal, 26(1), 193-221. auditing their web-based platforms 4. Madaus, J. (2011). “The history of disability for WCAG 2.0 compliance immedi- services in higher education,” New Directions for Higher Education, 2011(154), 5-15. ately if they have not already started. 5. Catherine E. Lahmon, “Securing Equal Educational Opportunity,” U.S. Department of CONCLUSION Education (2016), www2.ed.gov/about/reports/ annual/ocr/report-to-president-and-secretary-of- Students with disabilities are education-2016.pdf (last visited Feb. 4, 2018). enrolling in postsecondary educa- 6. Barnes v. Gorman, 536 U.S. 181,184-85 (2002). 7. Among the few institutions that don’t tion institutions at a higher rate than participate in Title IV financial-aid programs ever before and, in most cases, are are Hillsdale College in Michigan; Grove City College in Pennsylvania; Christendom College protected against discrimination and in Virginia; Pensacola Christian College in entitled to accommodation and the Florida; Patrick Henry College in Virginia; and tiny Wyoming Catholic College and Gutenberg provision of auxiliary aids. These College in Oregon, which have 150 and 22 accommodations might include per- students, respectively. At least one Orthodox Jewish institution, Yeshiva Toras Chaim Talmudic mission to have an assistance animal Seminary of Denver, also opts out of Title IV. under certain circumstances, as well 8. Ibby Caputo and Jon Marcus, “The Controversial Reason Some Religious Colleges as a vast range of other customizable Forgo Federal Funding,” The Atlantic (2016),

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 17 Education Law Student Protests in the Era of ‘Parkland’ and Black Lives Matter By Brandon Carey

18 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL N WEDNESDAY, MARCH 14, 2018, THOUSANDS of high school students across the Onation walked out of their classes in remembrance of the 17 individuals murdered at Marjory Stoneman Douglass High School in Parkland, Florida, and to protest gun violence in the United States. The protests came in many forms. Some groups, with support from district staff, congregated on athletic fields and solemnly released balloons, while others used their voices to make the point, shouting “We want change!” or “Enough is enough!” For the most part, the protests were peaceful, although some included shouting matches between those with opposing viewpoints.1

Student protests have long the same just one week before.6 disagreement with the war. Mary been a part of the educational Oklahoma students have even pro- Beth Tinker and other students experience,2 and the last few years tested the Legislature’s inadequate who engaged in the protest were have been no exception. For exam- funding of education.7 In short, sent home and informed that they ple, in November 2017, students student protests are not a new were suspended until they agreed at Brookline High School in phenomenon and, arguably, have to remove the armbands. Rather Massachusetts walked out of class only grown in popularity. than simply comply, the students’ to protest what they believed to be parents sued the district, and a racially hostile environment;3 in THE STANDARD in 1968 the U.S. Supreme Court February 2018, high school students In order to effectively advise granted certiorari. in Houston walked out in protest of school district clients how to pre- The opinion, written by Justice the U.S. Immigration and Customs pare for and respond to student Fortas, became the standard used Enforcement’s decision to detain protests, it is important to educate to determine the constitutional- a fellow student.4 Plus it is hard to them on students’ basic rights ity of regulating student speech. forget the student athletes across to free speech and expression. In the majority opinion, Justice the country that modeled Colin The foundational case regarding Fortas stated that “[i]t can hardly Kaepernick’s silent protest of kneel- student speech and expression is be argued that either students or ing during the national anthem. Tinker v. Des Moines Independent teachers shed their constitutional Students in Oklahoma have Community School District (No. 21).8 rights to freedom of speech or also engaged in protests. Students In December 1965, as the U.S. was expression at the schoolhouse across the Oklahoma City metro engaged in the war in Vietnam, gate.”9 He went on to dismiss the area joined the March 14 protests a group of students in Iowa argument that districts should be against gun violence,5 and John decided to wear black armbands able to prohibit speech or expres- Marshall High School students did to school as an expression of their sion based on nothing more than

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 19 fear or concern that it could cause officials must examine the facts of that displayed the confederate disruption. Rather, he explained each specific case and articulate flag, as district officials were able that, to prohibit student speech or how and why the activity would to point to past race-based inci- expression, district officials must materially or substantially disrupt dents as evidence that the speech be able to reasonably forecast that their ability to properly and safely could cause major problems for the school environment.17 Also, as discussed above, speech or expression that is lewd or obscene or that promotes illegal drug use can always be prohibited, and school However, it is important to remember that officials can regulate speech that is school-sponsored.18 speech should not be prohibited simply However, it is important to remember that speech should because it is uncomfortable or unconventional. not be prohibited simply because it is uncomfortable or unconventional.19 As Justice Fortas so eloquently stated in Tinker, “Our history says that it is this sort of the speech or expression would operate the school.15 For exam- hazardous freedom – this kind of “materially and substantially ple, student codes of conduct are openness – that is the basis of our interfere with the requirements of adopted specifically to ensure the national strength and of the inde- appropriate discipline in the oper- orderly operation of the school and pendence and vigor of Americans ation of the school.”10 The district the safety and well-being of students who grow up and live in this must specifically articulate how and staff, so speech that violates relatively permissive, often dis- the activity could materially or the code of conduct may be pro- putatious, society.”20 For example, substantially disrupt their ability hibited (e.g., protests that take place the 3rd Circuit Court of Appeals to operate the school. during class time or disrupts classes found that a school district’s deci- Since the Tinker decision, the with excessive noise, behavior that sion to prohibit middle school girls court has established a few other includes failure to follow reasonable from wearing bracelets stating limitations on student speech that directives from staff, etc.). “I ‘heart’ boobies,” which were exist alongside the Tinker standard. Speech may also be prohibited worn to promote breast cancer Most notably, districts may prohibit when it creates risks to student awareness, was not based on a speech or expression that is lewd, safety or could damage school reasonable forecast of a material vulgar or obscene,11 that promotes property (e.g., the passing out and substantial disruption to the illegal drug use12 or that is school of materials that can be used school environment.21 sponsored, as long as the prohibition to damage school was “reasonably related to pedagog- property or endan- ical concerns” (e.g., school-sponsored ger students, protests student newspapers).13 that actually damage school property, etc.).16 APPLYING TINKER Also, school officials It is important to remember are well within their that student speech or expression rights to prohibit is permitted unless school officials speech that violates can reasonably forecast that it the rights of others, would materially or substantially such as acts of bully- interfere with the school day.14 The ing, harassment and/ implication being that the pro- or discrimination. In hibition of student speech is the fact, one court even exception, not the rule. To pro- upheld one district’s hibit or later discipline students decision to prohibit the for speech or expression, district wearing of clothing

20 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL PREPARING FOR staff, etc. A prepared and trained KNEELING DURING THE STUDENT PROTESTS workforce will reduce the chances NATIONAL ANTHEM It is important for school of disorder and safety issues. Kneeling during the national districts to proactively prepare Third, it is important to ensure anthem as a form of protest grew for student protests. First, district that students understand accept- in popularity after NFL quarter- boards of education should adopt able and unacceptable speech, and back Colin Kaepernick began a policy related to student protests the consequences for engaging in doing so during the 2016 season. or demonstrations. The policy prohibited speech. Even further, if His high-profile act caught the should clearly and simply explain district officials obtain prior notice attention of professional and ama- student rights of speech and that a student protest will occur, teur athletes across the country, expression, indicate that anything it may be prudent to meet with many of whom began doing the that materially and substantially students and offer an alternative same. Since kneeling to protest disrupts the school day will not method of expressing their opin- racial injustice is a form of expres- be permitted, and provide notice ions. When emotions are running sion, the Tinker standard applies, that students engaging in unpro- high, a facilitated, safe manner of and it would be hard to argue that tected speech may be subjected to expression is always preferable the simple act of taking a knee discipline in accordance with the and has the benefit of teaching causes a material and substantial student code of conduct. A simple, students to engage in a construc- disruption to the school day. It clear policy will provide a mode tive, civil manner. should also be noted that another of operation for the district and notice to students that some forms of expression are not acceptable. Second, district officials should be encouraged to review and understand district policies on student protests, and work with staff to When emotions are running high, a facilitated, ensure everyone understands their role if and when a protest occurs. safe manner of expression is always preferable Staff need to understand how to respond if the protest is accept- and has the benefit of teaching students to able, a violation of school rules but peaceful, a danger to students and engage in a constructive, civil manner.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 21 Supreme Court case is applicable of the First Amendment, even in www.koco.com/article/live-oklahoma-city-students- to this situation and arguably the educational environment; and walk-out-of-class-to-protest-gun-violence/ 19156140. adds another layer of protec- 2) there are clear (and sometimes 7. See Tim Willert, “Hundreds of students walk tion. Specifically, in West Virginia not so clear) instances where out to protest budget cuts,” newsok.com (May 16, 2016), newsok.com/article/5498469; and Kyle 22 State Bd. of Educ. v. Barnette, the school districts will be justified Hinchey, “Bartlesville students walk out of class in Supreme Court struck down a in prohibiting or limiting stu- protest of $22 million in state cuts to education,” tulsaworld.com (Feb. 24, 2018), www.tulsaworld. school board’s policy of requiring dent speech and expression. It is com/news/education/bartlesville-students- students to stand for the pledge of important that school districts walk-out-of-class-in-protest-of-million/article_ a62081e7-a771-570c-82eb-06cbf4c42f93.html. allegiance, stating that “[i]f there seek to understand this balance, 8. 393 U.S. 503 (1968). is any fixed star in our constitu- as public schools are one arena in 9. Id. at 506. 10. Id. at 509 & 514. tional constellation, it is that no which young people learn how to 11. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. official, high or petty, can prescribe be full participants in our democ- 675 (1986). 12. Morse v. Frederick, 551 U.S. 393 (2007). what shall be orthodox in politics, racy. As attorneys, we must guide 13. Hazelwood Sch. Dist. V. Kuhlmeier, 484 nationalism, religion, or other our school district clients through U.S. 260 (1988). 14. Tinker at 509 & 514. matters of opinion or force citizens these sensitive decisions, and 15. Id. at 509. to confess by word or act their faith enable them to cultivate and refine 16. See Taylor v. Roswell Independent School th 23 District, 713 F.3d 25 (10 Cir. 2013). The court therein.” The court’s words surely students’ abilities to contribute to found that the district did not violate students’ apply to the anthem just as much as our national discourse in a civil First Amendment rights by prohibiting a religious student group from continuing to pass out rubber the pledge of allegiance, as both are and effective manner. fetus dolls to students, which were meant to similar patriotic expressions. convey their anti-abortion beliefs. The evidence indicated that the dolls were used to damage A student demonstration/ school property (i.e., bounced against walls, stuck protest policy, as described above, ABOUT THE AUTHOR to ceilings, used to clog toilets) and risked student would cover any such national safety (i.e., throwing the dolls). Brandon Carey is a staff attorney for 17. Hardwick ex rel. Hardwick v. Heyward, 711 anthem protests. However, since the Oklahoma State School Boards F.3d 426 (4th Cir. 2013). the extracurricular setting is 18. 551 U.S. 393 (2007) & 484 U.S. 260 (1988). Association. He is a 2005 graduate 19. Tinker at 509. unique, it would be wise to ensure of the OCU School of Law, where he 20. Id. at 508-509. client districts have a plan of 21. B.H. ex rel. Hawk v. Easton Area Sch. Dist., served as editor-in-chief of the Law 725 F.3d 293 (3rd Cir. 2013). action. For example, if a district’s Review. Mr. Carey also obtained 22. 319 U.S. 624 (1943). athletic teams are on the field or an LL.M. from American University 23. Id. at 642. court during the anthem and one Washington College of Law. or more players engage in a peaceful protest that does not violate the ENDNOTES student code of conduct or materi- 1. John Bacon and Cristal Hayes, “‘We deserve better’: Students nationwide walkout in massive ally and substantially disrupt the protest over gun violence,” USA Today (March 14, school activity, the speech should 2018), www.usatoday.com/story/news/2018/03/14/ thousands-students-across-u-s-walk-out-class- not be prohibited. If school officials today-protest-gun-violence/ receive prior notice of a planned 420731002/. anthem protest, students should 2. Tinker v. Des Moines Independent Community School District (No. 21), 393 U.S. 503 be reminded that actions in vio- (1968). See also Melinda D. Anderson, “The Other lation of the code of conduct will Student Activists,” The Atlantic (Nov. 23, 2015), www.theatlantic.com/education/archive/2015/11/ subject them to the consequences student-activism-history-injustice/417129/. prescribed therein. If the district 3. Meghan E. Irons and Alyssa Meyers, “Brookline students walk out to protest racial athletic teams generally remain in climate in wake of videos,” Bostonglobe. the locker room during the anthem, com (Nov. 30, 2017), www.bostonglobe.com/ metro/2017/11/30/brookline-high-school-students- but one or more athletes express a walk-out-class-protest-racial-climate-wake- desire to exit the locker room and video/wSB5mcT74lHeiAleHlyszO/story.html. 4. Grace Guarnieri, “Students Walk Out of peacefully protest, it will be up to Texas High School After Classmate Detained the district whether to facilitate by ICE,” Time (Feb. 14, 2018), www.newsweek. com/students-high-school-protest-detained- such an action. ice-807400. In conclusion, the courts have 5. Tim Willert, “Students walk out of class to protest gun violence,” newsok.com (March 14, consistently expressed two prin- 2018), newsok.com/article/5587044/students- ciples: 1) student speech and walk-out-of-class-to-protest-gun-violence. 6. “Oklahoma City students walk out of class to expression enjoys the protection protest gun violence,” KOCO.com (March 7, 2018),

22 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL ABBREVIATED PUBLIC NOTICE FOR REAPPOINTMENT OF INCUMBENT MAGISTRATE JUDGE

The current term of office for United States Magistrate Judge Frank H. McCarthy at Tulsa, Oklahoma, is due to expire on April 9, 2019. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term.

A full public notice for the magistrate judge position is posted in the office of the clerk of the district court at the Page Belcher Federal Courthouse, 333 West 4th Street, Room 411, Tulsa, Oklahoma 74103. The notice is also available on the court’s website at www.uscourts.oknd.gov.

Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be directed to:

Merit Selection Panel c/o US District Court Clerk Page Belcher Federal Courthouse 333 West 4th Street, Room 411 Tulsa, Oklahoma 74103

Comments must be received by September 30, 2018.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 23 Education Law The Legal Issues Associated With a Teacher Work Stoppage By Julie L. Miller, Rooney Virgin and Kim Bishop

N MARCH 2018, OKLAHOMA WAS MADE AWARE of the possibility of a teacher work Istoppage. Oklahoma’s public school teachers, fed up with politics and business as usual, commenced discussions via social media of the possibility of going on strike. One social media group garnered more than 75,000 members in a short period of time.

Very quickly those of us involved negotiate with such organiza- complete school years as a in providing legal information to tion or its representatives.1 teacher in one school district Oklahoma’s public school districts under a written teaching realized there would be several The referenced statute does not contract, or issues to address in each school mandate that teachers who strike district as the proposed teacher are automatically fired. The statute b. is employed for the first work stoppage date approached. At above addresses a strike against a time by a school district under issue initially was whether or not a school board related to negotiations. a written teaching contract teacher walkout violated state law. The next question becomes what during the 2017-2018 school do we do if our teachers walk out? year and thereafter and has not Oklahoma law contains one If a strike or walkout is not sup- met the requirements for career statute that addresses the issue of ported by a local board of educa- teacher as provided in para- a strike. Specifically: tion, the administration or board graph 4 of this section.3 of education may decide to take The procedure provided for adverse actions against employees “Career teacher” means a herein for resolving impasses who refuse or fail to report to work. teacher who: shall be the exclusive recourse of This is an issue of local control. In the organization. It shall be ille- order to terminate the employment a. is employed by a school gal for the organization to strike of a teacher, Oklahoma’s Teacher district prior to the 2017-2018 or threaten to strike as a means Due Process Act of 19902 must be school year and has completed of resolving differences with the followed. Due process procedures three (3) or more consecutive board of education. Any mem- vary for teachers depending upon complete school years as a ber of an organization engaging their status. By law, a teacher is teacher in one school district in a strike shall be denied the either probationary or career. under a written continuing or full amount of his wages during temporary teaching contract, or the period of such violation. If “Probationary teacher” means a the organization or its mem- teacher who: b. is employed for the first time bers engage in a strike, then the by a school district under a organization shall cease to be a. is employed by a school written continuing or tempo- recognized as representative of district prior to the 2017-2018 rary teaching contract during the unit and the school district school year and has completed the 2017-2018 school year and shall be relieved of the duty to fewer than three (3) consecutive thereafter:

24 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL (1) has completed three (3) consecutive complete school years as a teacher in one school district under a written continuing or temporary teaching contract and has achieved a district evaluation rating of “superior” as measured pursuant to the TLE as set forth in Section 6-101.16 of this title for at least two (2) of the three (3) school years,

(2) has completed four (4) consecutive complete school years as a teacher in one school district under a written continuing or temporary teaching contract, has averaged a district evaluation rating of at least “effective” as measured pursuant to the TLE for the four-year period, and has received district evaluation ratings of at least “effective” for the last two (2) years of the four-year period, or

(3) has completed four (4) or more consecutive complete school years in one school district under a written continuing or temporary teaching contract and has not met the requirements of subparagraph a or b of this paragraph, only if the principal of the school at which the teacher is employed submits a A bigger issue for Oklahoma’s public school districts was who would replace the fired teachers?

petition to the superintendent must be utilized.5 There is never an employment when the teacher of the school district request- “automatic” termination of employ- has accepted other employment or ing that the teacher be granted ment in Oklahoma. is performing work for another career status, the superinten- School superintendents could employer that prevents the teacher dent agrees with the petition, have presented recommendations to from fulfilling the obligations of and the school district board of school board members to terminate the contract of employment. education approves the peti- employment of probationary teach- tion. The principal shall specify ers for failing to report to work as the Due to the fact that career teach- in the petition the underlying cause for the recommended action. ers had engaged in a walkout, the facts supporting the granting However, this process would require above referenced statutory language of career status to the teacher.4 statutory notice be provided to the would not be applicable. teacher and a due process hearing A bigger issue for Oklahoma’s TERMINATION OR would need to be set as required public school districts was who NONRENEWAL OF by statute. The hearing could not would replace the fired teachers? A TEACHER be held sooner than 20 days, nor Oklahoma has over 1,900 emer- In order for a school superinten- later than 60 days from the date the gency certified teachers currently dent to present a legal recommenda- teacher was notified of the hearing. serving in public schools across tion for termination or nonrenewal For career teachers, a recommen- the state. If large numbers of of a teacher, the superintendent must dation to terminate employment teachers were fired, where would first present a recommendation to could not be brought until such replacements come from? This left the board of education. In order time as the teacher had been placed many schools with no choice but to dismiss a probationary teacher, on a plan of improvement and to close school during the teacher cause must exist. In order to dismiss given time to improve. Even though walkout as school districts could a career teacher, statutory grounds Oklahoma does include “abandon- not provide a safe environment ment of contract” for students without teachers to as a statutory supervise them. ground for dis- missal of career OUTCOME OF THE teachers, the term TEACHER WALKOUT is defined as: The teacher walkout ended after nine days of lost instruc- As used in this tion for many schools. The local section, “abandon- school boards and superintendents ment of contract” worked to modify school calendars means the failure to meet statutory requirements for of a teacher to student attendance and to adhere report at the begin- to time requirements set forth in ning of the contract teacher contracts. term or otherwise On March 28, 2018, the perform the duties Oklahoma Legislature voted to of a contract of pass House Bill 1010xx during

26 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL the second special session of the requirements which petitioners 22 could not be applied to the new 56th Legislature of the state of must comply with. Part of the referendum petition. Oklahoma. HB 1010xx included process includes a 10-day period The court also ruled that HB tax increases for gross production, during which any taxpayer can 1023xx was made contingent upon motor vehicle fuel, tobacco and file a protest as to the sufficiency enactments of HB 1010xx and that hotel/motel taxes. This legislation of the referendum petition. a bill is enacted when it is passed was historic in that it was the first Two protests were filed and by the Legislature and all the for- piece of legislation passed by the on June 11, 2018, the Oklahoma malities required to make it law Legislature by a supermajority Supreme Court heard oral argu- have been performed. Because HB as is required by the Oklahoma ments. The protests outlined 1010xx was enacted, the contin- Constitution for revenue raising several deficiencies in the petition gency requirements in HB 1023xx measures. The revenue generated filing. Generally, the description have been met, and it will become by HB 1010xx was intended to of the bill on the signature sheets effective Aug. 1, 2018. pay for a teacher pay raise that omits mention of two of the tax was contained in HB 1023xx, increases authorized in HB 1010xx, also passed by the Legislature the description was misleading ABOUT THE AUTHORS on March 28, 2018. Since the two and the petition did not include an Julie L. Miller is deputy executive measures were tied together, the exact copy of the bill. The protests director and general counsel for the Legislature included language in also raised questions about the Oklahoma State School Boards HB 1023xx that made operation of effect of a referendum petition Association. She is a member and the teacher pay raise contingent against HB 1010xx on the effective- past president of the Oklahoma upon the enactment of HB 1010xx. ness of HB 1023xx. School Board Attorneys Association. After the second special leg- On June 22, 2018, the Oklahoma She is a graduate of the OCU islative session was adjourned Supreme Court ruled in Oklahoma’s School of Law, Denver Paralegal 7 on April 19, 2018, a group called Children, Our Future, Inc. v. Coburn Institute and the University of Oklahoma Taxpayers Unite that the petition filed by Oklahoma Wisconsin-LaCrosse. began the process of filing for a Taxpayers Unite was invalid and Rooney Virgin is the director 6 veto referendum petition against ordered it stricken from the ballot. of Government Affairs for the HB 1010xx. The veto referendum The court concluded that the peti- Oklahoma State School Boards is essentially a voter veto – it tion was misleading and failure Association. She is a member allows voters to decide whether to include an exact copy of the bill of the Oklahoma School Board to veto legislation that has been violated the statutory mandate. Attorneys Association. She is a signed by the governor if enough However, the 90-day window graduate of the OU College of Law signatures are gathered on a ref- for filing referendum petitions and Auburn University. erendum petition within 90 days against HB 1010xx and obtaining Kim Bishop is a staff attorney after adjournment of the legis- the signatures had not yet expired. for the Oklahoma State School lative session. The veto referen- The group could file a new peti- Boards Association. She is a dum process is a constitutional tion and restart the process of member of the Oklahoma School right in Oklahoma. However, referendum, however, the group Board Attorneys Association. She the process includes specific would have to obtain new signa- is a graduate of the OCU School constitutional and statutory tures as any obtained prior to June of Law. Previously, she was senior staff attorney with the Oklahoma House of Representatives.

ENDNOTES 1. 70 O.S. Section 509.8. 2. 70 O.S. Section 6-101.20, et seq. Since the two measures were tied together, 3. 70 O.S Section 6-101.3. 4. 70 O.S. Section 6-101.3. 5. 70 O.S. Section 6-101.22. the Legislature included language in HB 1023xx 6. Referendum Petition No. 25, State Question 799. that made operation of the teacher pay raise 7. 2018 OK 55. contingent upon the enactment of HB 1010xx.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 27 Education Law Suspension and the Special Education Student By David Blades

WO IMPORTANT POLICY ISSUES COME INTO PLAY when students with special Tneeds engage in behavior that gives rise to suspension of the student. First, the school district is obligated to maintain order in the classroom to create a proper learning environment. However, when dealing with special needs students, the district must determine if the conduct giving rise to discipline is a manifestation of the student’s disability. If the offending behavior is a manifestation of the student’s disability, the district is limited in how long it may suspend the student and must make changes to the student’s education plan to improve his or her education experience. This article will examine the procedures and legal standards used to define the rights of special needs students juxtaposed with the districts authority and obligation to maintain discipline in the classroom.

There are misconceptions and school district’s responsibilities upon students without special regarding the provision of a free are found in the Individual with needs.4 School officials may suspend and appropriate public education Disabilities Education Act (IDEA).1 a special needs student to the same (FAPE) as it relates to discipline. Principally, the IDEA requires pub- extent they could suspend a student For example, many parents believe lic schools to provide all eligible without special needs but only up to because their child is disabled they students with a FAPE. A FAPE is 10 days.5 This statute also limits the cannot be suspended. Conversely, specially designed instruction that placement of special needs students some people hold the opinion that meets the unique needs of the spe- in an alternative setting, such as in disabled students can be sus- cial needs student. Also, as part of school suspension. Any effort to pended in the same manner and to the provision of a FAPE, the district remove a student from the class- the same degree as a student with- must provide support services to room for more than 10 school days out special needs. Both positions assist the student to benefit from constitutes a change of placement. are incorrect. Federal law balances instruction.2 The education plan is When a change of placement occurs the rights between districts and a document designed to allow each procedural safeguards for the spe- special needs students. Generally, student to benefit from individu- cial needs student take effect. districts have the right to establish alized instruction. This document rules where violation can lead to is referred to as the Individual CHANGE OF PLACEMENT suspension. Conversely, the law Education Program (IEP).3 Educators A change of placement can limits the district’s ability to disci- and parents formulate the IEP in a occur even if 10 days of suspen- pline a special needs student and collaborative effort contemplating the sion are not consecutive. If a even requires schools to develop a unique special needs of the student. student is subjected to a series of plan to correct the offended con- A student receiving special edu- removals that constitute a pattern, duct in the future. cation services can be suspended those removals may constitute a The framework outlining the but with significant limitations change in placement if they are rights of a special needs student compared to the suspensions visited more than 10 days in total.6 To

28 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL constitute a pattern, the remov- If the decision is made to remove The review is to be conducted by als must be based on incidents a special needs student from the the student’s IEP team.7 The review that are substantially similar to classroom for more than 10 school is to ascertain whether the conduct behaviors that resulted in previous days, a manifestation determination leading to the change of placement removals. Additionally, the length must take place. The procedure gov- was either caused by or had a direct of each removal and the proximity erning manifestation determinations and substantial relationship to the of each removal to the other are is found at 20 U.S.C. 1415(k)(1)(E) and child’s disability or if the conduct factors in determining whether a 34 CFR 300.530(e). It requires that was the result of a failure to imple- change of placement has occurred. within 10 school days of the decision ment the student’s IEP. The review What constitutes a pattern of to change the placement of a special should examine all relevant infor- removal is highly subjective and needs student, a review of all relevant mation. Relevant information can can only be ascertained on a case- information regarding the student’s include, but is not limited to, the by-case basis. conduct and disability is conducted. child’s IEP, teacher observations, testing information, information provided by the parents, supplemen- tary aids and if behavior strategies for the student were appropriate given the goals set out in the stu- de nt ’s I EP. 8 Team members may consider the unique circumstances on a case-by-case basis when determining whether to suspend a special needs student for a violation of the student code of conduct.9 The review must be specific to the student’s behavior as it relates to his or her disability. For example, a team conducting a review must examine the student’s actual behavior when making a manifestation determination. The team cannot make general findings and apply them to a student’s specific behavior. For example, a team cannot find that since there is usually no relationship between particular conduct and a disability that there would be no such relationship in this specific case. Therefore, it would be irrelevant what behaviors some students with autism engage in as a general rule. A review should only be undertaken of the behavior of the autistic student facing suspension.10 If the team determines that the student’s behavior was not a manifestation of his or her disability, then the district may suspend the special needs student to the same extent as it would for the same student code of conduct violations of all students. However, the school

30 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL district must continue to provide school services to a suspended special needs student so that student can continue to receive a FAPE. Indeed, should the district fail to provide a FAPE to the suspended student, a hearing officer The collected data is used to write a plan with has the authority to modify or rescind the change in placement.11 modifications to the level of instruction and behavior

NEW BEHAVIOR management to correct the student’s behavior. INTERVENTION PLAN A decision that the student’s behavior is a manifestation of his charting the frequency of is placed in an interim placement.16 or her disability requires the dis- the offending behavior; Services provided by the district trict to implement a new behavior where the behavior should include services to address intervention plan or review a occurred; the behavior that led to the suspen- behavior plan that was already recent changes in the sion in the first place. in place.12 There is no statutory student’s life in or out of If a parent disagrees with a framework that dictates the form school; and decision to remove their student of a behavior plan, however, the levels of academic instruc- from school, they may request an plan must properly identify the tion and expectations. expedited administrative hearing behavior that led to the code of before an independent hearing conduct violation and then be The collected data is used to officer.17 The hearing officer has the designed to eliminate that behav- write a plan with modifications to authority to determine whether the ior. It should go without saying the level of instruction and behav- removal of the student from school that classroom teachers, counsel- ior management to correct the constituted a change in placement ors, principals, etc. can address student’s behavior. If the behavior and if there was a change in place- behavior that is intermittent and plan fails to achieve its objective, ment, was the behavior that led to not very severe. For instance, a the evaluation and revision pro- that change a manifestation of the student with ADHD who habitu- cess starts all over again. student’s disability. In this type of ally fails to turn in homework may There are three exceptions, called hearing, the burden of proof falls have a behavior plan requiring the special circumstances, to the 10-day on the one challenging the mani- use of an assignment notebook to rule that permits the school to imme- festation determination.18 The hear- help organize his or her thoughts. diately place a student in an interim ing officer will take testimony from A teacher could monitor the stu- alternative education setting for up witnesses as necessary and review dent’s use of the notebook to help to 45 school days.13 These exceptions all relevant data when making his the student complete his or her apply if a special needs student or her determination.19 The hearing work in a timely manner. brings a dangerous weapon, inflicts officer’s decision can be appealed. More severe behavior issues, serious bodily injury upon another In Oklahoma, that appeal is to particularly if they are frequent, or knowingly possesses, uses, sells a second level of administrative require direct observation of the or attempts to sell illegal drugs review. Once the administrative student’s behavior in the environ- while at school or a school function.14 remedies have been exhausted, ment in which it occurs. A person Additionally, an administrative appeal can be taken to either state with expertise in behavior usually hearing officer can order an interim or federal district court. conducts these observations. The change in placement for up to 45 At the conclusion of the hear- purpose of these observations is school days if it is proven that by ing, the hearing officer has several to collect measurable and useable continuing the student in his or her options. If it is determined the data. There is a plethora of data current placement there is a substan- student’s behavior was a manifes- that can be collected concerning a tial likelihood of injury to the student tation of his or her disability, the child’s behavior. Some examples of or others.15 In either event, the school hearing officer could order the data that can be collected include: district must continue to provide the student be returned to the place- student with a FAPE while he or she ment from which the student was

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 31 While school districts have the authority to develop and enforce a code of conduct, they are limited in how they may suspend special needs students.

removed. Also, even if it is a mani- ENDNOTES festation of the disability, the hear- 1. 20 U.S.C §1400 (IDEA). While this article focuses on students under the rubric of the IDEA ing officer may order a change in (commonly referred to as special education), there placement if it is determined that are other statutes that provide for similar rights for the disabled student. Namely, Section 504 of maintaining the current placement Rehabilitation Act of 1973 as amended requires is substantially likely to result in the same protections against undue suspensions, as does the IDEA. 20 injury to the student or others. 2. 20 U.S.C. §§1401 (9),(26), and (29). 3. 20 U.S.C. §1401 (9)(D). 4. 70 O.S. §24-101.3. CONCLUSION 5. 20 U.S.C. §1415(k)(1)(B). School districts have an 6. 34 C.F.R. 300.536(a). 7. The IEP team can include teachers, admin- obligation to maintain order in istrative representative, counselors, school the classroom. At the same time, psychologists and parents. Specific requirements of the types of individuals who should be on the protections are in place for special team can be found at 34 C.F.R. 300.321. needs students. While school dis- 8. 34 C.F.R. 300.530(e). 9. 34 C.F.R. 300.530(a). tricts have the authority to develop 10. See Bristol Twp. Sch. Dist. v. Z.B., 67 IDELR and enforce a code of conduct, 9 (E.D. Pa. 2016). 11. See District of Columbia v. Doe, 611 F3d they are limited in how they may 888 (D.C. Cir. 2010). suspend special needs students. 12. 14 U.S.C. §1415(k)(1)(F)(i) and 34 CFR 300.530(f). These procedural and substantive 13. 20 U.S.C. §1415(k)(1)(G). limitations are not designed to 14. See 34 C.F.R. 300.530(g)(h)(i). Controlled sub- excuse behavior of students. They stance is defined in 121 U.S.C. 812(c) but does not include a controlled substance that is legally pos- are, however, intended to design sessed or used under the supervision of a licensed a program for special needs stu- healthcare professional or that is legally possessed or used under any other authority under that act or dents to eliminate the inappropri- under provision of federal law. Serious bodily injury ate behavior and learn to behave is defined 18 U.S.C. §1365 (h)(3). Dangerous weapon is defined in 18 U.S.C. §930(g)(2). appropriately in the school setting. 15. 20 U.S.C. §1415(k)(3)(A). 16. 20 U.S.C. §1415(k)(1)(D). 17. 34 C.F.R. 300.532(a). The hearing regarding a manifestation determination is not the forum to challenge whether the student’s conduct violated ABOUT THE AUTHOR a school’s conduct policy. That issue should be David Blades has been practicing addressed by whatever suspension policy the law in Oklahoma for 25 years. He is school district has adopted. 18. See Schaffer v. Weast, 546 U.S. 49 (2005). currently serving as an administra- 19. The hearing is to be conducted in an expe- tive hearing officer for the Oklahoma dited manner. The hearing must occur within 20 school days of the request and the hearing officer State Department of Education. must render a decision within 10 school days of the completion of the hearing. 34 C.F.R. §300.532. 20. 34 C.F.R. §300.532(b).

32 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 33 Education Law Legal Representation of a Public School District in Oklahoma By Julie L. Miller, Jessica Sherrill, Rooney Virgin, Kim Bishop and Brandon Carey

N OCCASION, THE ADMINISTRATION OF A SCHOOL DISTRICT or members of Oa school board will require legal assistance. There are typically three different types of attorneys working with school districts: 1) state association legal counsel, 2) retained legal counsel and 3) in-house legal counsel. When an issue arises, the various members of the board of education, school administrators or school employees may through a series of conversations and communications involve the state association’s legal staff, the school district’s in-house legal counsel and an outside law firm. Adding all of these lawyers to the discussion of an issue creates an opportunity for conflicting legal information and inconsistent legal advice for school districts, but may also provide the school district with more than one path to address the issue. When this happens, legal considerations come into play about the participation of the attorneys involved.

When all three of these types employees of school district mem- THE ROLE OF of school attorneys are involved in bers contact one of the attorneys IN-HOUSE COUNSEL conversations and solutions to a for legal information, the specifics Many school districts employ potential issue, different ideas may of those conversations are main- in-house counsel who is generally emerge regarding the conversation tained in a confidential manner. an employee of the district and and potential solutions. There are This creates a relationship of trust provides legal advice and services times when these differences are with a school board member, to the school board and admin- minor and times when the differ- administrator or employee that istration. This attorney’s role is ences may be significant. The chal- benefits the organization and the similar to that of a corporation’s lenge for the attorneys involved school district. If the lawyer were counsel, which brings up unique is making sure that the organiza- to make information “public” or obligations and scenarios, espe- tion, the membership and those did not maintain confidential- cially around the identity of the directly performing legal services ity between callers, trust in that client, the nature of attorney-client for school districts understand association would be lost, and the communications and relationships the role of each party involved in association would no longer be a with fellow employees. order to do what is in the best and viable resource for information. ethical interest of the client. State association counsel should Who Is In-House The Oklahoma State School let member districts know the priv- Counsel’s Client? Boards Association’s legal staff ilege does not apply at the outset The in-house counsel has one does not have attorney-client and with the district when mem- client – the school district. This privilege for our general phone bership is renewed. nebulous legal entity takes con- callers. However, when individual crete action through its constitu- board members, administrators or ents. In fact, Oklahoma Rules of

34 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Professional Conduct Rule 1.13, which specifically deals with clients as organizations, states that the attorney represents the organization or district “acting through its duly authorized constituents.”1 The “constituents” are the board of education, superintendent and, at times, other administrators and employees who are acting in their official capacity as district employees and within the power given them by district policy. It is important to understand the exact nature of these constituents. Generally, individual board members do not act on behalf of the district; rather, the board as an entity, acting in its official capacity during a legally called public meeting, is the constituent of the district. The superintendent, to whom the board delegates the authority to manage the administration, is also a constituent of the district when acting in her or his official capacity, as are employees in leadership positions within the administration. It is also important that employees understand the first client is the school district and training should be provided to new employees to understand that individual employees (e.g. superintendent, deputy superintendent, CFO, etc.) must be acting on behalf of the district, and not for personally competing interests, to qualify as a constituent of the district. For example, if the Rule 1.6.2 With regard to in-house the above-listed criteria. However, board has indicated a desire to counsel, the privilege may extend during any such conversation, discipline or even terminate the to communications with the board counsel should clearly explain that superintendent, the board is the and certain individual employees she or he is acting as counsel for the constituent acting on behalf of the if acting in their official capacity district, not the employee. district, and the superintendent has and on behalf of the district. The A common misconception a competing, personal interest – his comments and Rule 1.13 from the by board members is that their or her own employment. In this ABA Model Rule state in com- individual communications with instance, the in-house counsel must ment 2 that when a constituent of in-house counsel are protected represent the district by advis- an organization, acting in their by the privilege and cannot be ing the constituent board, as the official capacity, communicates disclosed to the full board. Unless superintendent is acting on behalf with the organization’s attorney, authorized by the full board to of her or his personal employment the communication is protected represent the district in a certain interests, which are in conflict with by Model Rule 1.6.3 This privilege capacity, individual board mem- the constituent board. clearly extends to legal communi- bers are not constituents of the As explained in Rule 1.13, this cations with the district’s board in district and generally will not have idea of the district as the in-house executive session, and legal commu- the benefit of the privilege in indi- counsel’s client bestows a certain nications with the superintendent vidual conversations with in-house responsibility to protect the dis- and other administrators, if acting counsel. Even if the privilege trict in a manner that may cause as constituents for the district. extends to an individual member, an awkward dynamic with other Communications with middle- she or he will not have the author- employees. For example, if the or lower-level employees may also ity to require counsel to keep the in-house counsel becomes aware be privileged, depending on the conversation from the full board. of acts by the superintendent that circumstances. The U.S. Supreme It is important for the in-house could cause substantial injury to Court, in Upjohn v. United States,4 449 counsel to clearly communicate the district (e.g. illegal treatment of U.S. 383 (1981), found that in-house these rules to the board and again employees, fraudulent practices, counsel communications with to an individual board member, if etc.), the duty to the client may employees are privileged if these the situation requires it. require that she or he notify the communications are 1) at the direc- Even when the in-house coun- board or even law enforcement. tion of district superiors, 2) made to sel is speaking with a constituent This duty places the in-house coun- obtain legal advice from counsel, 3) of the district, the substance and sel in a unique position in relation concerning matters within the scope context of the discussion is still to other employees, even superiors. of the employees’ duties, 4) made important in determining whether to obtain legal advice from counsel the privilege applies. It is not When Are Communications and 5) the employees were aware uncommon for an in-house coun- Protected? that the purpose of the conversa- sel to provide advice on business The in-house counsel, just as tion was to provide legal advice matters rather than legal topics. all other attorneys, must not to the district client.5 Therefore, an When the nature of the commu- disclose information relating administrative assistant’s conversa- nication is to provide thoughts on to the representation of a client tion with in-house counsel will be business matters (e.g. efficiency of except in the instances listed in protected by the privilege if it meets operations, effectiveness of certain

As explained in Rule 1.13, this idea of the district as the in-house counsel’s client bestows a certain responsibility to protect the district in a manner that may cause an awkward dynamic with other employees.

36 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL venders, etc.), the conversation will THE ROLE OF STATE Some state associations also not be protected. Only conversa- ASSOCIATION COUNSEL provide legal services that would tions that are meant to provide State associations typically include representation of school legal advice to the client, through employ attorneys to provide a vari- districts in legal matters. This a district constituent, will receive ety of services to member school type of service typically involves protection. Therefore, it is import- boards. Many states provide a type retainer agreements or a specific ant to clearly define the nature of of free “legal information” to mem- contract that outlines the scope the discussion and, when possible, bership. During business hours of work to be performed and to separate communications that (and on occasion during board identifies any fees that may be provide legal advice from those meetings in the evening), a mem- imposed as a result. With this type that do not. ber or members of the association’s of representation, attorneys must legal staff is available to provide be mindful of Oklahoma Rules THE ROLE OF legal information during meetings. of Professional Conduct Rule 5.4 RETAINED COUNSEL In addition, members of the legal and its accompanying comments Retained legal counsel is typi- staff may perform a variety of in effect in that jurisdiction8 cally engaged by a school board to other services for school districts that expresses the professional provide legal services to the school such as policy making, providing independence of the attorney. It district. In some states, a state asso- staff development training, whole is critical leadership of the state ciation’s legal staff may become board training and/or working on association and all employees retained counsel depending upon education legislation at the state understand that the attorney pro- duties provided. In addition, school and federal level. It is critical that viding legal services cannot have districts will commonly have a members of the association’s legal their professional judgment as an law firm on retainer and the law department make it very clear to attorney directed or controlled by firm will work directly with the school district board members, a nonlawyer. administration and/or board of administrators and employees that education. When questions arise as to whom the retained counsel represents, that issue is covered by the Oklahoma Rules of Professional Conduct and the American Bar Association’s Model Rule 1.13 and its accompanying comments, in effect in that jurisdiction.6 The school district itself is the client. When working as retained counsel for a school district, the attorney may often have to remind clients that the overall client for the attorney or the law firm is the school district itself. This can create additional legal issues when the interests of a school board member or members, the administration and/or school employees become diverse. There will be times when an individual board member or employee of a school may be told they will need to retain a personal the legal information provided is COLLABORATION attorney as the school district’s not considered to be legal advice OF ATTORNEYS legal counsel cannot defend them and therefore is not subject to Attorneys working directly in a particular situation. special protection from disclosure. with school districts in Oklahoma Oklahoma Rules of Professional have, for the most part, enjoyed a Conduct Rule 5.7 addresses the wonderful working relationship for provision of law-related services.7 several decades. Many years ago

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 37 a member of a law firm working This article was first published by the ENDNOTES with school districts began a con- National School Boards Association, 1. Rule 1.13 – Organization as Client (a) A lawyer employed or retained by an orga- versation with a managing partner Council of School Attorneys 2018 nization represents the organization acting about whether or not the attorneys School Law Seminar, Copyright through its duly authorized constituents. working with one of the firm’s cli- NSBA 2018, all rights reserved, (b) If a lawyer for an organization knows that an officer, employee or other person associated ent school districts were violating reprinted with permission. with the organization is engaged in action, the Rules of Professional Conduct intends to act or refuses to act in a matter related to the representation that is a violation by interfering with a legal relation- of a legal obligation to the organization, or a vio- ship. This brings into discussion lation of law that reasonably might be imputed ABOUT THE AUTHORS to the organization, and that is likely to result in the Oklahoma Rules of Professional Julie L. Miller is deputy executive substantial injury to the organization, then the Conduct Rule 4.2.9 Rule 4.2 places lawyer shall proceed as is reasonably necessary director and general counsel for the in the best interest of the organization. Unless all attorneys on notice that they Oklahoma State School Boards the lawyer reasonably believes that it is not should not be communicating necessary in the best interest of the organiza- Association. She is a member and tion to do so, the lawyer shall refer the matter to with someone who is known to be past president of the Oklahoma higher authority in the organization, including, if represented by and involved with warranted by the circumstances to the highest School Board Attorneys Association. authority that can act on behalf of the organiza- legal counsel in a matter. She is a graduate of the OCU tion as determined by applicable law. State association counsel is School of Law, Denver Paralegal (c) Except as provided in paragraph (d), if (1) despite the lawyer’s efforts in accordance typically not a party to a lawsuit or Institute and the University of with paragraph (b) the highest authority that involved in litigation. As a result, Wisconsin-LaCrosse. can act on behalf of the organization insists upon or fails to address in a timely and Rule 4.2 does not come into play. Jessica Sherrill is director of appropriate manner an action, or a refusal to In order to provide the attorneys at unemployment for the Oklahoma act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the the state association with peace of State School Boards Association. violation is reasonably certain to result in mind, the organization requested She is a member and past pres- substantial injury to the organization, then the lawyer may reveal information relating to the an opinion on the issue of whether ident of the Oklahoma School representation whether or not Rule 1.6 permits state association attorneys would Board Attorneys Association. She such disclosure, but only if and to the extent the lawyer reasonably believes necessary to be interfering with retained coun- is a graduate of the OCU School of prevent substantial injury to the organization. sel by taking phone calls from Law. She is currently Rotary District (d) Paragraph (c) shall not apply with respect to school board members and admin- information relating to a lawyer’s representation 5750 governor and member of of an organization to investigate an alleged vio- istrators in districts that are repre- OKC Midtown Rotary. lation of law, or to defend the organization or an sented by retained legal counsel. officer, employee or other constituent associated Rooney Virgin is the director of with the organization against a claim arising out The Oklahoma Bar Association government affairs for the Oklahoma of an alleged violation of law. issued an informal opinion which (e) A lawyer who reasonably believes that he or State School Boards Association. she has been discharged because of the lawyer’s provided that the attorneys work- She is a member of the Oklahoma actions taken pursuant to paragraphs (b) or (c), or ing with the state association who withdraws under circumstances that require School Board Attorneys Association. or permit the lawyer to take action under either would not be interfering with the She is a graduate of the OU College of those paragraphs, shall proceed as the lawyer role of retained counsel by answer- reasonably believes necessary to assure that the of Law and Auburn University. organization’s highest authority is informed of the ing questions posed by board Kim Bishop is a staff attorney lawyer’s discharge or withdrawal. members and employees of schools for the Oklahoma State School (f) In dealing with an organization’s directors, officers, employees, members, shareholders as it related to legal information. Boards Association. She is a or other constituents, a lawyer shall explain the The members of the state member of the Oklahoma School identity of the client when the lawyer knows or reasonably should know that the organization’s association legal staff have consis- Board Attorneys Association. She interests are adverse to those of the constitu- tently worked to refer school board is a graduate of the OCU School ents with whom the lawyer is dealing. (g) A lawyer representing an organization may members and school employees of Law. Previously, she was senior also represent any of its directors, officers, who have questions involving legal staff attorney with the Oklahoma employees, members, shareholders or other constituents, subject to the provisions of Rule advice and specific direction on a House of Representatives. 1.7. If the organization’s consent to the dual rep- legal matter to their retained legal don Carey is a staff attor- resentation is required by Rule 1.7, the consent Bran shall be given by an appropriate official of the counsel. This is most important ney for the Oklahoma State School organization other than the individual who is to when association counsel is aware Boards Association. He is a mem- be represented, or by the shareholders. of a pending lawsuit or the likeli- 2. Rule 1.6 Confidentiality of Information ber of the Oklahoma School Board (a) A lawyer shall not reveal information relating hood of one. So great care is taken Attorneys Association. He is a to the representation of a client unless the client to not knowingly interfere with the gives informed consent, the disclosure is impliedly graduate of the OCU School of Law, authorized in order to carry out the representation role of district legal counsel. where he was editor-in-chief of the or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to OCU Law Review (2004-2005). the representation of a client to the extent the lawyer reasonably believes necessary:

38 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL (1) to prevent reasonably certain death or does not mean, however, that constituents of an may, pursuant to the provisions of Rule 1.17, substantial bodily harm; organizational client are the clients of the lawyer. pay to the estate or other representative of (2) to prevent the client from committing a The lawyer may not disclose to such constituents that lawyer the agreed-upon purchase price; crime or fraud that is reasonably certain to information relating to the representation except for (3) a lawyer or law firm may include non- result in substantial injury to the financial disclosures explicitly or impliedly authorized by the lawyer employees in a compensation or interests or property of another and in organizational client in order to carry out the repre- retirement plan, even though the plan is furtherance of which the client has used or sentation or as otherwise permitted by Rule 1.6. based in whole or in part on a profit-sharing is using the lawyer’s services; 4. 449 U.S. 383 (1981). arrangement; and (3) to prevent, mitigate or rectify substantial 5. Upjohn v. United States at 394. (4) a lawyer may share court-awarded injury to the financial interests or property of 6. ORPC Rule 1.13 and ABA Model Rule 1.13 legal fees with a nonprofit organization another that is reasonably certain to result are the same. See endnote 1. that employed, retained or recommended or has resulted from the client’s commission 7. The full text of ORPC 5.7 is as follows: employment of the lawyer in the matter. of a crime or fraud in furtherance of which Rule 5.7: Responsibilities Regarding Law-related (b) A lawyer shall not form a partnership with a the client has used the lawyer’s services; Services nonlawyer if any of the activities of the partner- (4) to secure legal advice about the lawyer’s (a) A lawyer shall be subject to the Rules of ship consist of the practice of law. compliance with these Rules; Professional Conduct with respect to the provi- (c) A lawyer shall not permit a person who (5) to establish a claim or defense on behalf sion of law-related services, as defined in para- recommends, employs, or pays the lawyer to of the lawyer in a controversy between the graph (b), if the law-related services are provided: render legal services for another to direct or lawyer and the client, to establish a defense (1) by the lawyer in circumstances that are regulate the lawyer’s professional judgment in to a criminal charge or civil claim against not distinct from the lawyer’s provision of rendering such legal services. the lawyer based upon conduct in which legal services to clients; or (d) A lawyer shall not practice with or in the the client was involved, or to respond to (2) in other circumstances by an entity con- form of a professional corporation or associa- allegations in any proceeding concerning trolled by the lawyer individually or with others tion authorized to practice law for a profit, if: the lawyer’s representation of the client; if the lawyer fails to take reasonable measures (1) a nonlawyer owns any interest therein, (6) to comply with other law or a court order; or to assure that a person obtaining the law- except that a fiduciary representative of (7) to detect and resolve conflicts of interest related services knows that the services are the estate of a lawyer may hold the stock or arising from the lawyer’s change of employment not legal services and that the protections of interest of the lawyer for a reasonable time or from changes in the composition or owner- the client-lawyer relationship do not exist. during administration; ship of a firm, but only if the revealed informa- (b) The term “law-related services” denotes (2) a nonlawyer is a corporate director or tion would not compromise the attorney-client services that might reasonably be performed in officer thereof or occupies the position of privilege or otherwise prejudice the client. conjunction with and in substance are related similar responsibility in any form of associa- (c) A lawyer shall make reasonable efforts to to the provision of legal services, and that are tion other than a corporation; or prevent the inadvertent or unauthorized disclo- not prohibited as unauthorized practice of law (3) a nonlawyer has the right to direct or con- sure of, or unauthorized access to, information when provided by a nonlawyer. trol the professional judgment of a lawyer. relating to the representation of a client. 8. The full text of ORPC Rule 5.4 is as follows: 9. The full text of Rule 4.2 is as follows: 3. ABA Comment on Rule 1.13 Rule 5.4: Professional Independence of a Lawyer Rule 4.2 Communication With Person [2] When one of the constituents of an organiza- (a) A lawyer or law firm shall not share legal Represented By Counsel tional client communicates with the organization’s fees with a nonlawyer, except that: In representing a client, a lawyer shall not lawyer in that person’s organizational capacity, the (1) an agreement by a lawyer with the lawyer’s communicate about the subject of the represen- communication is protected by Rule 1.6. Thus, by firm, partner, or associate may provide for the tation with a person the lawyer knows to be rep- way of example, if an organizational client requests payment of money, over a reasonable period resented by another lawyer in the matter, unless its lawyer to investigate allegations of wrongdoing, of time after the lawyer’s death, to the lawyer’s the lawyer has the consent of the other lawyer or interviews made in the course of that investigation estate or to one or more specified persons; is authorized to do so by law or a court order. between the lawyer and the client’s employees or (2) a lawyer who purchases the practice of a other constituents are covered by Rule 1.6. This deceased, disabled, or disappeared lawyer

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 39 Financial Institutions & Commercial Law Section Note Update to Cryptocurrency Article By Fred H. Miller

40 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL N THE MAY 2018 ISSUE OF year at its annual meeting in July, The uniform act contains the Oklahoma Bar Journal the ULC was expected to approve provisions that foster Ian article by Kaimee K. a companion act that will provide innovation and the trial of Tankersley, Ashley Davis and tested commercial rules for virtual various business models Alexander Ah Loy titled “Legal currency transactions. before the full burden of and Regulatory Developments The benefit of the URVCBA licensing occurs. Arising From The Growth of as opposed to merely amending Cryptocurrency” discussed those so-called money transmission A brief summary of the two developments on the federal statutes (MTAs), which only deal proposed acts follows. level and among the states, but with transmission of legal tender, URVCBA regulates persons, concluded its discussion of state as a general rule are: wherever located, that conduct or regulation as of November 2017. offer to conduct virtual currency The purpose of this section note is MTAs are not uniform, the business activity for residents of to update that part of the article. uniform act when enacted the enacting state and who have The National Conference will make the law substan- control of virtual currency.1 of Commissioners on Uniform tially the same among Virtual currency business State Laws, or the Uniform Law exacting states, activity consists of: Commission (ULC) for short, is a The uniform act will lead state-funded organization of practic- to cooperation among state The exchange of virtual ing lawyers, judges, legislative staff regulatory agencies and currency for other virtual and law professors founded in 1892 contains reciprocity provi- currency or for fiat currency at the suggestion of the American sions to reduce the regula- or bank credit, or vice versa, Bar Association. It studies and tory burden for interstate The transfer of virtual cur- then drafts and seeks enactment businesses, rency by crediting it to the of uniform state laws. Oklahoma The uniform act is specif- account of another person, has been a member for many years ically focused on virtual moving it from one account whose delegates are selected by the currency transactions and of the person to another governor, the House and the Senate. thus affords certainly to account of the same person, Some of its well-known products businesses; indeed, it is or relinquishing control of Oklahoma has enacted include the supported by virtually all it to another person, or Uniform Commercial Code, vari- industry participants, Storing virtual currency.2 ous business organization acts and The uniform act contains numerous family law acts. far more consumer/user Virtual currency is a digital Last year, after careful study and protections than do MTAs, representation of value that is the involvement of members of the and further coordinates used as a medium of exchange, industry and participants in cryp- with federal laws; it also unit of account or store of value tocurrency (aka virtual currency) contains extensive enforce- and is not fiat currency whether transactions, the ULC approved ment powers for the state or not it is denominated in fiat an act entitled the Uniform regulatory agency, and currency. Virtual currency does Regulation of Virtual Currency not include: Businesses Act (URVCBA). This

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 41 A transaction in which a or services) are not money service minor activity perhaps to develop merchant grants as part of an businesses and are not subject to BSA a business model or for research, awards program value that regulation. An “administrator” (a per- and who pose little risk if unregu- cannot be taken from the son engaged as a business in putting lated, to engage in virtual currency program or exchanged for into circulation virtual currency with activity without regulatory burden. fiat currency, bank credit, or the authority to withdraw it), and Similar considerations may other virtual currency, or an “exchanger” (a person engaged apply to a business that wants to A digital representation of value issued and used solely within an online game or family of games offered on the same game platform.3 Most states have money transmitter laws. As The URVCBA does not regulate: enacted they govern transfers of fiat currency, Virtual currency itself, Person to person transfers but several states are in the process of without the use of an intermediary virtual currency amending these laws to also cover virtual business,4 and Whether virtual currency is currency, for example Hawaii. subject to: escheat laws, the treatment of virtual currency as a security or a com- modity, or virtual currency business that is de minimus, as a business in the exchange of test a business model in a particu- defined as not in excess of virtual currency for fiat currency, lar market or for some other valid $5,000 in volume per year.5 funds or other virtual currency), business reason does not want are money services businesses and to go “whole hog” in a particu- OTHER STATE/FEDERAL are subject to MSB registration, lar state. Because the business LAWS APPLICABLE TO reporting and record keeping nonetheless poses risk to users, VIRTUAL CURRENCY under the federal law, unless a the URVCBA does not exempt Most states have money trans- limitation or exemption applies. the business but if the expected mitter laws. As enacted they govern This is important because a) a annual volume does not exceed transfers of fiat currency, but several state should not both amend its $35,000 allows a “license light” states are in the process of amend- money services statute and also approach called “registration” ing these laws to also cover virtual enact the URVCBA – it should in §207. However, this approach currency, for example Hawaii. enact the URVCBA as the better comes with a two-year time limit. Aside from a lack of uniformity, this design and recognize it coordinates A variety of businesses engag- results in pushing a square peg in a with the money services statutes ing in virtual currency business round hole even if various but often (see §703), and b) a business doing activity are excluded, basically lesser user protections are added. virtual currency business activity to avoid overlapping regulation. On the federal level, the Bank in a state that has amended its These include: Secrecy Act (BSA) is like state money services statute but not money transmitter laws and the enacted the URVCBA, which some Activity to the extent sub- Financial Crimes Enforcement opponents of any regulation seem ject to the Electronic Fund Network (FinCEN) has issued an to be arguing for, unless the busi- Transfer Act, the SEC Act, “interpretive guidance” govern- ness recognizes the change, may be the Commodities Exchange ing persons creating, obtaining, liable under 18 U.S.C. §1960. Act or state blue sky laws, distributing, exchanging, accept- As noted, the URVCBA exempts Activity by the U.S., a state, ing or transmitting virtual curren- businesses whose annual volume or an agency or instru- cies. As under URVCBA, “users” of virtual currency business activ- mentality of either or of a (essentially persons who obtain ity is $5,000 or less per year. This foreign government, virtual currency to purchase goods allows persons who engage in only Banks,

42 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Persons who essentially only Any criminal convictions File interim reports.11 Also supply operational support, and proceedings; reports on any change in Attorneys and title insur- Any litigation, arbitration control12 and reports on any ance companies providing and the like proceedings; merger or consolidation.13 escrow services, and Any bankruptcy, receiver- Make required disclosures Secured or lien creditors ship and like proceedings; to residents, including enforcing their debts.6 Addresses to contact the among other matters fees business; and charges, any insurance Before engaging in or holding Insurance information; coverage, whether a transac- itself out to engage in virtual cur- Information about the tion is irrevocable, liability rency business activity with or on form and structure of for unauthorized mistaken behalf of a resident of an enacting the business; or accidental transfers, error state, a business must be licensed Any registration with FinCEN; resolution rights, informa- in the enacting state or in another Employment experience of tion about a transfer, any state with which the enacting officers and certain others; right to stop payment, and state has a reciprocity agreement.7 and that virtual currency is not To apply for a license from the The applicable fee.8 legal tender.14 enacting state, an applicant must Maintain virtual currency provide among the following: An applicant must: of customers in its control and not subject to it claims Legal name and address, Meet security, net worth of creditors.15 and the same for officers and reserve requirements.9 Maintain policies and and certain others; Meet recordkeeping procedures for or against Description of current and requirements.10 a) information security, former businesses; b) business continuity, c)

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 43 disaster recovery, d) fraud, relief, civil penalties, ability to Both proposed acts will be e) money laundering, or the recover on the security required introduced in a number of states funding of terrorist activity under Sec. 204 and imposition of in 2019. and f) to ensure compliance conditions on continued activity.19 with applicable laws.16 There is no private right of action under the act, the rational ABOUT THE AUTHOR To alleviate the burden of being that providing one might Fred H. Miller is professor emeritus multistate licensing, the URVCBA prompt inconsistent rulings since at the OU College of Law, where he allows a business operating in a the subject is new and adminis- joined the faculty in 1966. He grad- number of states two options. trative enforcement is likely to be uated in 1959 from the University of The first option if the enact- more consistent. But if a violation Michigan and received his J.D. from ing state adopts it, is to use the of the act would furnish a cause of the same university in 1962. He Nationwide Multistate Licensing action under other law, that is not has served as commissioner from 20 System developed by the Conference curtailed, nor is criminal prose- Oklahoma to National Conference of State Bank Supervisors and file cution under other law precluded. of Commissioners on Uniform an application with the registry. The Virtual currency is a type of State Laws since 1975, and is also applicant also must notify the enact- intangible personal property. former executive director, chair of ing state agency and submit to it: Existing commercial law may the Executive Committee and past characterize it as a payment president of the conference. The license history from intangible for classification as

each state in which the collateral under UCC Article 9, but ENDNOTES applicant is licensed to little else is clear as the applicabil- 1. Sec. 103(a). conduct virtual currency ity of the Article 9 rules do not fit 2. Sec. 102(25). Other more specialized activity includes a) engaging in virtual currency admin- business activit y, virtual currency well. Moreover, istration b) holding electronic precious metals The applicable fee, whether UCC Article 2 applies or electronic certificates representing interests in precious metals or issuing the latter or c) Documentation of compli- to the exchange or sale of virtual exchanging digital representations of value within ance with security and net currency or ancient bailment law one or more online games for virtual currency offered by the same person from whom the digital worth requirements, and applies well to a custodial transac- representations were received or fiat currency or A certification of compli- tion, is doubtful at best. To amend bank credit outside the game. Activity can involve virtual currency that has a centralized repository ance with the URVCBA those laws to accommodate virtual or that is decentralized and that uses the “block- enacted in the state. currency would be impracticable. chain,” such as in the case of Bitcoin. We will focus on the latter. Characterizing virtual currency as 3. Sec. 102(23). The second option, if the registry a financial asset to fit in the indi- 4. Sec. 103(b)(7). 5. Sec. 103(b)(8). option is not available or used, if rect holding system under UCC 6. Section 103. the state agency determines that the Article 8 Part 5, and the resulting 7. See §102(11) defining that term. 8. Sec. 202 state in which the business already application of the rules not only 9. Sec. 204. is licensed has a law substantially of Article 8 but also Article 1 and 10. Sec. 302. See also Sections 303-304. 11. Sec. 305. similar (or more protective of the a clear path under Article 9, is the 12. Sec. 306; rights of users), is to file a notice approach being used in a pro- 13. Sec. 307. 14. Sec. 501. stating the intent to rely on recipro- posed companion act scheduled to 15. Sec. 502. cal licensing, a copy of the license be completed by the Uniform Law 16. Secs. 601 and 602. 17. Sec. 203. from the other state, license history, Commission this summer. 18. Sec. 301 the fee, documentation of compli- One may question whether 19. Secs. 401-406. ance with security and net worth such a companion act is needed 20. Sec. 407. requirements, and a certificate of as submitting virtual currency intent to comply with the act.17 as a financial asset by agreement The URVCBA provides the of the user and the securities state agency with a wide range of intermediary is possible now. administrative enforcement tools However, to do so much draft- including authority to conduct ing of the agreement to obtain examinations,18 license suspen- a workable fit makes this a less sion or revocation of a license attractive approach. or registration, cease and desist Expect at most a few states in orders, receivership, injunctive 2018; more after studies in 2019.

44 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Member Benefits Six New OBA Member Benefits Focus on Practice Management By Jim Calloway

HANGES IN THE LEGAL discounts to OBA members who friendly way to share information Cprofession continue to impact sign up for new subscriptions. using client portals. This is a great us all. We have gone from the Practice management solutions way for a lawyer who doesn’t days where there was a debate on organize digital copies of all client consider themselves a technology whether a lawyer should even have documents, lawyer’s notes, calen- expert to upgrade their client com- a computer on his or her desk to dar information, pending tasks munication security. today where the computer network and all other client information Although lawyers were initially going offline means that the law under easy-to-access dashboards. concerned by the concept of cloud firm is largely unable to function. Lawyers can review documents, computing, these cloud-based ser- One of the significant changes record time, assign tasks to others vices, which were designed to pro- is that many smart lawyers use in the firm and do many other tect confidential client information, practice management solutions to tasks, all within these applications. provide better security for client organize all of their client infor- “Supporting Oklahoma lawyers data and better remote access than mation into digital client files. Six as they incorporate modern tech- email. Complete digital client files new member benefits can help nology tools into their law prac- are important for today’s lawyers. Oklahoma lawyers better manage tices is an important goal of the Using one of these solutions, which their practices, and OBA members OBA. Better efficiency and secu- have been vetted by the Oklahoma who are new subscribers to these rity tools benefit both lawyers and Bar Association, is a great way to cloud-based practice management their clients.” said OBA President organize your digital client files. services will receive discounts. Kimberly Hays. These providers also provide free Clio, CosmoLex, MyCase, Businesses (and law firms) training for their customers, and PracticePanther, Rocket Matter today use email more than tradi- there are client-training modules and Zola Suite are all cloud-based tional U.S. mail for correspondence, available as well. practice management solutions for but each story of inappropriate law firms that now offer various email disclosure or email hacking HOW TO FIND raises concerns THESE BENEFITS about whether Brief descriptions of the prac- email is an tice management solutions and appropriate the discounts they provide are way to transmit available online. To access them, confidential log in to your MyOKBar account information. through www.okbar.org and click The client por- the “Practice Management Software tals provided by Benefits” link in the links box under these practice your information. management solutions provide a secure Mr. Calloway is OBA Management and client Assistance Program director.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 45 Bar News New www.okbar.org: More Than Just a Facelift By Laura Stone

REAT NEWS! BIG CHANGES facelift. Based on the usability tests and and fix any problems with the code, Gare coming to the bar association feedback, improved infrastructure fea- then integrate the corrected content website. Everyone loves change, right? tures like clearer navigation, increased into the new design. This exhaustive Actually, this is one change we think readability, better mobile responsive- process ensures every page not only everyone can embrace. Though the web ness and a more relevant search feature has the most up-to-date information, address will stay the same, the new site will make it easier for members to find but has also helped reveal pages or will be a much-upgraded experience for what they need – beyond just front- whole sections of the existing website our visitors. Don’t worry though, all page items – and give the public better that are rarely accessed due to either the things our members need most – access to resources generously pro- poor navigability or duplicated, irrele- like quick access to MyOKBar, Fastcase, vided by our committees and sections. vant information. By better organizing MCLE information and CLE registration “Everything is new,” said IT the information, every other aspect – – are still right on the front page. Director Robbin Watson. “New plat- like the search or navigation menus – Several months ago, a group of form, new hosting, new look – and will work more efficiently. It will also volunteer members ran usability we’ve tested every one of our new and make it easier for search engines like tests, analyzing how easy the current enhanced features to be sure they inte- Google to analyze the pages, giving site could be navigated and how long grate smoothly. We’ve worked hard to better visibility to the resources the it took users to find specific services. create a beautiful website that’s easy to general public may be seeking. After reviewing the results, as well as use for all our audiences.” “It’s been a lot of work,” said Executive Director John Morris Williams, “but the staff have done a great job, and the members involved have been a real asset. We know members’ time is valuable and increasing We know members’ time is valuable and increasing efficiency when they go online to access their services is one way we efficiency when they go online to access their services can help them better utilize that time. As with all our technology, we will is one way we can help them better utilize that time. continue to evolve and make improve- ments, but this is a big step forward.” Testing and final review for the new website is currently underway. member feedback, a plan was estab- In addition to upgraded infrastruc- Website visitors can expect to see lished and a team of four staff from the ture and functionality, the content on the new design in mid-August. Communications and IT departments the website has also been improved. was assembled to transition from the The process of transferring informa- current website into an all-new design. tion requires the team to review each Laura Stone is a communications Although the new website has an one of the thousands of pages on the specialist in the Communications updated look, it got more than just a existing site to update the information Department.

46 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL

A Lawyer’s Personal Story An Illness No One Talks About

JUST RETURNED TO WORK There is still a major stigma person to the entire readership of I after being off for a little more attached to mental illness, espe- the Oklahoma Bar Journal. than six weeks. No, I had not been cially in the legal profession. I know I am taking baby steps. When on an extended vacation backpack- that Lawyers Helping Lawyers has I returned to work, I opened up ing across Europe. I had spent time worked diligently to combat that to several people and let them in a mental hospital followed by six stigma, and I appreciate the effort. I know about my diagnosis and weeks of outpatient day treatment. hope it works because a 2015 study how overwhelming the depres- I have bipolar disorder and was conducted by the American Bar sion had become. When I did that, suffering through a severe bout Association in partnership with the I found that each of them also of depression. Hazelden Betty Ford Foundation had stories of how mental illness My direct supervisor knew found that attorneys do not usually had impacted them or someone where I was and what was going seek help because they do not want they loved. They admitted they on in my life. No one else did. I others to find out they need help refrained from sharing their sto- did not hear from anyone while I and they worry about confidential- ries because of the stigma. None was gone. I know my supervisor ity. Both reasons speak to the stigma of us have “come out” to the rest did not share my situation, and associated with mental health of the firm. However, each of us the people in my office did not illness and care. is taking baby steps. want to intrude. They are kind This is the place where I should Two of us have begun attend- and caring folk, but because no stand up, identify myself and ing the monthly Lawyers Helping news was shared with them, they make the argument that the only Lawyers discussion group in did not call my family to check on way to reduce the stigma is for Oklahoma City and have found a me or to see if they needed help. us all to be honest about mental safe and supportive place to share No one baked us a casserole. No illness and mental health. But what is going on in our lives. It is one brought flowers. That was my I am an attorney, and I am not not easy for me to open up about choice, I suppose. Or, was it? that person. At least I am not that myself and share personal details about my life with other attorneys. However, I have started doing just that, and it has been okay, even positive. In fact, no one has treated me any differently – which provided my worried mind with relief. I am still not ready to reveal my identity, but I hope this helps someone out there to seek help from the resources available through the OBA. I hope I never reach the depths of depression I recently experienced, but, if I do, I hope I will be able to let my co-workers know about it so that my family and I will receive the support so desperately needed during those times. And, yes, I hope someone brings a casserole.

48 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL

Bar News 2019 OBA Board of Governors Vacancies

Nominating Petition Supreme Court Judicial file appropriate resolutions nomi- Deadline: 5 p.m. District Five nating a candidate for this office. Current: James L. Kee, Duncan Not less than 60 days before the Friday, Sept. 7, 2018 Carter, Cleveland, Garvin, Grady, opening of the annual meeting, Jefferson, Love, McClain, Murray 50 or more voting members of OFFICERS and Stephens counties the association may file with the President-Elect (Three-year term: 2019-2021) executive director a signed peti- Current: Charles W. Chesnut, Miami Nominee: Vacant tion nominating a candidate for Mr. Chesnut automatically the office of presidentelect or vice becomes OBA president Jan. 1, 2019 Member At Large president, or three or more county (One-year term: 2019) Current: Alissa Hutter, Norman bar associations may file appro- Nominee: Vacant Statewide priate resolutions nominating a (Three-year term: 2019-2021) candidate for the office. Vice President Nominee: Vacant If no one has filed for one of the Current: Richard Stevens, Norman vacancies, nominations to any of (One-year term: 2019) SUMMARY OF the above offices shall be received Nominee: Vacant NOMINATIONS RULES from the House of Delegates on Not less than 60 days prior to the a petition signed by not less than BOARD OF GOVERNORS annual meeting, 25 or more voting 30 delegates certified to and in Supreme Court Judicial members of the OBA within the attendance at the session at which District Three Supreme Court Judicial District from the election is held. Current: John W. Coyle III, which the member of the Board of See Article II and Article III Oklahoma City Governors is to be elected that year, of OBA Bylaws for complete infor- Oklahoma County shall file with the executive director, mation regarding offices, posi- (Three-year term: 2019-2021) a signed petition (which may be in tions, nominations and election Nominee: Vacant parts) nominating a candidate for procedure. the office of member of the Board of Elections for contested posi- Supreme Court Judicial Governors for and from such judi- tions will be held at the House of District Four cial district, or one or more county Delegates meeting Nov. 9, during Current: Kaleb K. Hennigh, Enid bar associations within the judicial the Nov. 7-9 OBA Annual Meeting. Alfalfa, Beaver, Beckham, Blaine, district may file a nominating reso- Terms of the present OBA offi- Cimarron, Custer, Dewey, Ellis, lution nominating such a candidate. cers and governors will terminate Garfield, Harper, Kingfisher, Not less than 60 days prior to Dec. 31, 2018. Major, Roger Mills, Texas, Washita, the annual meeting, 50 or more Nomination and resolution forms Woods and Woodward counties voting members of the OBA from can be found at www.okbar.org/ (Three-year term: 2019-2021) any or all judicial districts shall members/BOG/BOGvacancies. Nominee: Vacant file with the executive director a signed petition nominating a candidate to the office of member atlarge on the Board of Governors, or three or more county bars may

50 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Photo Highlights Sovereignty Symposium XXXI Oklahoma City | June 6-7, 2018

1. Oklahoma Supreme Court Chief Justice Douglas Combs (left) and newly appointed Oklahoma Supreme Court Referee John Holden

2. From left: Blas Preciado, Kiowa Black Leggings Warrior Society vice commander, members of the Tinker Air Force Base Color Guard and Lyndreth Palmer of the Kiowa Black Leggings

3. Citizen Potawatomi Tribal Court Chief District Judge Philip Lujan (left) and Citizen Potawatomi Tribal Chairman 1. 2. John “Rocky” Barrett

4. Essie Garde (left) and Suzanne Edmondson

5. From left: jeweler Kenneth Johnson; Oklahoma Supreme Court Justice Yvonne Kauger; Lt. General Lee Levy III, keynote speaker and commander, Air Force Sustainment Center, Air Force Materiel Command, Tinker Air Force Base, Oklahoma; and Oklahoma Supreme Court Chief Justice Douglas Combs during the presentation of the silver gorget to General Levy 5. 4. 3.

6. From left: Economic Development Panel members Dr. Jim Collard, planning and economic development director, Citizen Potawatomi Nation; Jonna Kirschner, senior vice president, Chickasaw Nation Industries; Tammye Gwin, executive director of business and economic development, Choctaw Nation of Oklahoma Division of Commerce; Natalie Shirley, president/CEO, National Cowboy and Western Heritage Museum; Bill G. Lance Jr., secretary of commerce, Chickasaw Nation; Chris Benge, chief of staff to Gov. Mary Fallin and Oklahoma secretary of Native American Affairs; David Nimmo, CEO/president, Chickasaw Nation Industries; Wayne Garnons-Williams, senior lawyer and principal director, GarWill Law; and Kyle Dean, associate professor of economics, director of Center for Native American & Urban Studies, OCU

7. Harvey Pratt, winner of the National Native American Veterans Memorial design contest, (left) and Kelly Haney, former Oklahoma state senator and finalist in the National Native American Veterans Memorial design contest

8. General Levy and Rhonda Levy speak with Oklahoma Supreme Court Justice James Edmondson at the Dignitaries’ Luncheon 7. 8.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 51 9. From left: Criminal Law Panel members (seated) Edward Snow, assistant U.S. attorney for the Eastern District of Oklahoma; Christopher B. Chaney, unit chief, Criminal Justice Information Law Unit, FBI Office of the General Counsel; Jessica Jarvis, assistant U.S. attorney for the Western District of Oklahoma; (standing) Robert Troester, acting U.S. attorney for the Western District of Oklahoma; Arvo Mikkanen, panel co-moderator and assistant U.S. attorney for the Western District of Oklahoma; Oklahoma Court of Criminal Appeals Judge Dana Kuehn; Oklahoma City attorney John Cannon; Mithun Mansinghani, Oklahoma solicitor general; and Shon T. Irwin, U.S. magistrate judge for the Western District of Oklahoma

10. From left: Gaming Panel members (standing) Matthew Morgan, director of Gaming Affairs, Division of Commerce, Chickasaw Nation; D. Michael McBride III, Crowe & Dunlevy; Jonodev Osceola Chaudhuri, chairman of the National Indian Gaming Commission; Wiley Harwell, executive director, Oklahoma Association for Problem and Compulsive Gambling; Brian Wyman, principal consultant, The Innovation Group; William Norman, Hobbs, Straus, Dean and Walker; Dean Luthey, GableGotwals; (seated) Nancy Green, Green Law Firm; Elizabeth Homer, Homer Law; and Kathryn Isom-Clause, vice chair of the National Indian Gaming Commission

11. Court of Criminal Appeals Judge Dana Kuehn (left), OBA President Kimberly Hays and Oklahoma Supreme Court Justice Richard Darby.

13.

12. 14.

16. From left: Economic Development-Supporting Infrastructure Panel members Dr. Jim Collard, director, planning and economic development, Citizen Potawatomi Nation; Janie Simms Hipp, director of the Indigenous Food and Agriculture Initiative, visiting professor of law, University of Arkansas School of Law; Mike Patterson, director, Oklahoma Department of Transportation; Joy Hofmeister, Oklahoma state superintendent of public instruction; Tim Gatz, executive director, Oklahoma Turnpike Authority; Kelli Mosteller, director, Citizen Potawatomi Nation Cultural Heritage Center; and Nathan Hart, economic development director, Cheyenne and Arapaho Tribes

17. Eric Tippeconnic, historian and creator of the 2018 symposium artwork, The Briefcase Warrior, after receiving his Friend of the Court medal (left) with Oklahoma Supreme Court Chief Justice Douglas Combs

18. From left: Implications of Assimilation Panel members R. Jay Hannah, executive vice president of financial services, Bancfirst; Professor Joan Howland, professor of law, University of Minnesota; Kirke Kickingbird, Hobbs, Straus; and Oklahoma Supreme Court Vice Chief Justice Noma Gurich

All photos by Stu Ostler

52 | AUGUST 2018 9. 10. 11.

12. From left: U.S. Magistrate for the Western District of Oklahoma Suzanne Mitchell; Oklahoma Supreme Court Justice James Winchester; and Jerry McPeak, interim tribal administrator, Muscogee (Creek) Nation

13. Oklahoma Supreme Court Justice Tom Colbert (left) and Bishop Robert Hayes

14. Vanessa Jennings, noted Oklahoma regalia, cradleboard and bead artist

15. James Pepper Henry, director/CEO, American Indian Cultural Center Foundation (AICCF)

15.

18.

AUGUST 2018 | 53 16. From the Executive Director Breaking the Jar By John Morris Williams

N MY PREADOLESCENT DAYS, By doing pro bono work we not II liked to plant things. I still do only meet an ethical obligation to – but not with the same ambition. provide access to justice, we touch Any seeds I could order, purchase lives and help people to find their or otherwise get my hands on best destiny. As I often say, it’s made me feel rich. Oftentimes I good business. Our communities would start them in a jar in my are better when domestic violence bedroom. Back in those days all victims are made safe. Future the jars were glass. I was recycling generations are more secure before it was trendy. when children are protected and I was about 10, and I planted a assured a safe place to grow up. pecan in a glass mayonnaise jar. We even spend less money on Proudly it was displayed on my jails and prisons when the right dresser. Glass jars were the best. You resources are in place for early could see the roots if the seeds ever intervention. It’s good business to germinated. The pecan liked the help vulnerable people. Our world jar and soon roots and a tiny sprout is better when lawyers give of came up. Quickly it grew and out of their time and beyond the blessing pride I exclaimed to my father that of giving; in dollars and cents, it we needed to plant it in the yard. makes a difference in the long run. My father was particular about his As lawyers we have many A couple of years ago I went by lawn, so I figured he would outright opportunities to break the jar for my childhood home in Stonewall. reject the idea. But he didn’t. people. We see the solution so I had not been by in a while. To I was very concerned about clearly and often clients see no way my amazement in the backyard getting this now almost foot-tall out that does not do lasting or even where I had dug 45 years ago was a tree out of the jar. It seemed like legally fatal harm. This is espe- 40-foot pecan tree. It is mature and it would be impossible or the tree cially true of people with mental bears fruit. I wish my father was would suffer from being pulled out. challenges and children. Without around to see it. Sometimes that’s I knew it needed to be free soon. the help of legal counsel, often the how it goes. You break a jar, free a The jar revealed a cluster of roots, trees of their dreams die in the jar. tree and some 10-year-old gets to and I knew that with it growing so Compassionate, competent see his dream come true. So, get quickly I needed to act fast. I knew counsel can change lives and keep out there and break some jars. nothing of bonsai at that time. dreams alive. Sometimes it does My father simply took the jar out- not take much. Sometimes it’s a side and broke off the bottom with a large undertaking. Sometimes hammer. Alas, the tree was free by they can assist with the shovel. coming out the bottom. Something I Sometimes they cannot. Sometimes never thought of. Well, I did lose the they are grateful and sometimes jar. Mission accomplished. After the not. Sometimes they are overly freeing of the tree from the remain- concerned with losing the jar and To contact Executive Director ing part of the jar, my father handed incapable of making good deci- Williams, email him at me a shovel, and the rest is history. sions for themselves. [email protected].

54 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 55 Law Practice Tips Technology Competence for the Family Lawyer By Jim Calloway

OME LAWYERS WERE emergence of the internet of things As experienced family lawyers Sconcerned when the Model (IoT) has multiplied the ways a know, there are so many things Rules of Professional Conduct bad actor in a divorce case can use happening with a marital split that were changed to include a com- technology to intimidate or torture online technology and its impact ment that competence as a lawyer their soon-to-be ex-spouse. on security and privacy may not included an appreciation of “the The article noted people say- be foremost in the client’s mind benefits and risks associated with ing they felt like they were going unless their lawyer assists them relevant technology.” Many states crazy because inexplicable things with solid advice. began adopting this language into were happening: I haven’t practiced family law their own version of the rules with in many years, so none of this some variance in language. One woman had turned on her applied when I was practicing, but Now 31 states have adopted air-conditioner, but said it then I thought I’d take this opportunity some version of this language in switched off without her touch- to outline a few things to tell a comment 8 to Rule 1.1, according ing it. Another said the code new family law client about how a to legal technology journalist numbers of the digital lock at separation or divorce impacts the Robert Ambrogi who maintains her front door changed every technology they use every day. regularly updated information day and she could not figure about this topic on his blog.1 out why. Still another told an SOCIAL MEDIA Oklahoma’s version of the abuse help line that she kept All family lawyers likely warn comment was adopted by the hearing the doorbell ring, but their clients today about posts on Oklahoma Supreme Court in no one was there. social media which could harm September 2016.2 their case. It is likely best to give Lawyers practicing in the family Others reported accounts of the several examples to assist the client law arena have had to learn about thermostat suddenly turning up in understanding how even inno- preserving social media evidence to 100 degrees or smart speakers cent factual posts can be used in and getting it admitted in hearings suddenly blasting music. Today a divorce proceeding. In the early as many people post things on many homes also have security days of social media, some lawyers social media that are very relevant cameras, webcams connected to advised their clients to deactivate to their custody battle or other computers or a PlayStation with their social media accounts or claims they may be making in a camera. Any digital camera never use them while the divorce court. Today, merely signing up a connected to the internet can case was pending. This is not a new family law client and giving be a tool for privacy invasion if practical alternative for many them basic initial advice requires controlled by someone outside of today’s clients, but at a mini- technology competence on the part of the home. mum, they should be warned they of the family lawyer. Often the home technology has should not post anything about An article that appeared in been set up by one partner in a their estranged spouse. Certainly, The New York Times this summer3 relationship with the other partner there are a few exceptions, such reminds us increasing reliance having limited understanding of its as pictures from a child’s birthday on technology tools and the functions beyond the basic details. celebration where both parties

56 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL attended, but they should be rare. DIGITAL PRIVACY should interrupt the con- A few words about how “party AND SECURITY nection to every device in pics” may come across in the court- However, updating email pass- the home using Wi-Fi. room might also be in order. words is just the beginning of the Only reconnect the devices journey where password security to your Wi-Fi using the new FIRST THE EMAIL PASSWORD sharing and remote access are password that you actually The most urgent advice to give concerned. want to use. You may decide a family law client is to change For example, it is convenient to not to reset something like their email password immedi- be able to check remotely to see if the internet-connected lock ately to something long and not someone forgot to close the garage on your front door for a obvious – for every email account. door or to open it remotely when while, but with smart locks It really doesn’t matter that they your neighbor needs in to borrow a and internet-connected don’t think their spouse knows tool, but it is dangerous for someone thermostats, you also may their password, it still needs to be to be able to open your garage door have no other option. Some changed. Not only does having remotely and leave it open all night. devices may have a reset someone’s email password allow Here is a nonexhaustive list of button to assist you, but them to login to the web-based things you might want to discuss don’t forget that even if version of the email account to with your client and perhaps pro- you have lost the installa- read their email or send emails vide them with a handout/checklist. tion instructions, you can posing as them, but password likely locate them online recovery and reset options for Change your email password by searching the name and almost every online service can on every email account. model number of the device. be done via email. Change the home Wi-Fi Talk to your children about network password. This internet security and safety

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 57 and about sharing the help “unsyncing” devices or spouse likely knows the Wi-Fi password with their separating accounts. answer to many of those friends. You might have a Don’t forget that if some- security questions. (On a rule that every time they one has your Apple ID side note, no one should be share the password with and password, they can using “What is your moth- a new friend they have to use Find My iPhone to er’s maiden name?” as a send you a text message determine your physical security question as most with the friend’s name. location within a few feet at internet users can “crack” Another good rule to tell any time if you have your that using Google without children is no one is allowed phone with you. even bothering to sign up to share the password with If your cable TV service, for a genealogy history adults, who should contact streaming service or inter- website that will definitely you directly if they need net service provider is set up provide the answer.) it. Avoid saying bad things in both parties’ names, then You might consider using about the other parent. You each has full access to much a password manager can say nonjudgmental information, which may since you will ultimately things like “Daddy doesn’t include remote login capa- be changing all the pass- live here so he doesn’t need bility, data use and websites words you use and these the Wi-Fi” or “Mom’s an visited, pay-per-view movies tools can generate very adult so the rule is adults watched, web-based email long random passwords have to ask me.” and other data. Get that for you. (This may not be You must have a lock code changed as soon as possi- a tool that every client can on every phone and porta- ble. (Attorneys will want to confidently use.) ble digital device you and advise about the impact of Never use your work email your children use. If you the automatic temporary account to correspond with already have lock codes, injunction on this.) There your lawyer or to discuss reset them all. is also likely a password, a private matters with any- iPhones bring some particu- PIN and security questions one. Your employer has lar concerns. Many couples with these accounts that access to all that informa- sync their iPhones to share should all be changed. tion via the network. information and married Passwords for online The passwords for every couples often share an Apple shopping accounts, online additional online service ID or iCloud account, which banking, retirement funds you use should be changed gives access to emails, mes- and credit cards should be and the security questions sages and other data without immediately changed. This examined. This may take the other spouse knowing. should also be done for all some time, so do the import- This could lead to unantici- social media accounts, even ant ones first. pated consequences like that if you don’t use them often. Webcams connected to com- old iPad no one uses anymore You don’t want someone puters or the internet should still displaying text messages posting in your name. be physically covered when sent to you. Depending Security questions and the not in use. This has less to on your level of expertise, answers should also be do with your divorce and you may need professional examined as the estranged more to do with protection

You might consider using a password manager since you will ultimately be changing all the passwords you use and these tools can generate very long random passwords for you.

58 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL against hackers generally. You don’t want to be the law- You can buy inexpensive yer who sees your client being webcam covers for laptops interviewed on the evening news with installed cameras that broadcast or in the local media on slide to expose the camera how the client’s connected home lens when you want to use it somehow became a modern-day and can be closed when not haunted house. in use. Does your telephone answering machine have a Mr. Calloway is OBA Management feature where someone can Assistance Program director. Need listen to the recorded mes- a quick answer to a tech problem sages remotely by calling or help solving a management your number and entering dilemma? Contact him at 405-416- a code? If so, that code 7008, 800-522-8065, jimc@okbar. needs to be changed. org. It’s a free member benefit! If you have a home security system, you may need ENDNOTES to contact the monitoring 1. See www.lawsitesblog.com/ service to understand tech-competence. 2. 2016 OK 91. where the data is stored 3. Nellie Bowles, “Thermostats, Locks and how it operates. You and Lights: Digital Tools of Domestic Abuse,” The New York Times, June 23, 2018, www. want to know if videos of nytimes.com/2018/06/23/technology/ visitors to your home are smart-home-devices-domestic-abuse. stored and for how long, along with how they are accessed. There may be a PIN or password associated with that service. If you have a do-it-yourself setup, you may have to do some research on how to reset it. If you have particular privacy or security concerns, you may ask friends not to “tag” you on social media or post photos of you at an event until after you have left.

That’s a longer list than I intended, but it covers the basics. The executive summary is change your email password, change your home Wi-Fi password and then change passwords for any website that allows access to money or allows charges on your credit card. Whether you call it technology competency or just good client service, today’s world requires lawyers appreciate the risks that we all face when using technology tools.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 59 Ethics & Professional Responsibility Attorney Discipline Decisions By Gina Hendryx

HE FOLLOWING IS A determining the appropriate disci- the representation of five clients Tsummary of several attorney pline, the court noted the respon- during 2015 and 2016. In June discipline matters recently issued dent’s complete lack of respect 2016, Knight’s Texas license was by the Oklahoma Supreme Court. for the disciplinary system, his suspended. He failed to notify The court has exclusive, original clients and his lack of remorse or his clients of the suspension or jurisdiction over the licensure and acknowledgement of the gravity of return any unearned fees. When discipline of Oklahoma attorneys. his wrongdoing. Kruger was dis- represented with these complaints, barred by the Oklahoma Supreme Knight failed to respond to the STATE EX REL. OKLA. BAR Court. He cannot seek reinstate- State Bar of Texas. The Supreme ASS’N V. KRUGER, 2018 OK 53 ment for a period of five years. Court of Texas held that Knight A four-count disciplinary would have to pay restitution action was brought against attor- STATE EX REL. OKLA. BAR to each of these clients as an ney Joel L. Krueger alleging that ASS’N V. KNIGHT, 2018 OK 52 “absolute condition precedent for he neglected clients and misap- This is a reciprocal discipline reinstatement.” The order of the propriated client funds. The court matter filed based upon attorney Texas court canceling Knight’s found that Kruger withheld funds David W. Knight’s disbarment Texas law license is prima facie due to his client for child support in Texas. Knight was licensed to evidence that Knight committed payments and settled claims for practice law in Oklahoma and the acts described therein and are past-due child support without his Texas. His disbarment in Texas the basis for reciprocal discipline client’s knowledge or consent. In was based upon misconduct in in Oklahoma. The Oklahoma Supreme Court found it was conclusively established that Knight neglected his clients, failed to return unearned fees, did not notify his clients of his suspension and engaged in the practice of law while suspended. Furthermore, Knight failed to notify the Oklahoma Bar Association of his discipline in Texas as required by the Rules Governing Disciplinary Proceedings. The Oklahoma Supreme Court held Knight’s conduct warranted the reciprocal discipline of disbarment in Oklahoma stating that his professional misconduct and disregard for the disciplinary process presents a danger to the interests of the public, the courts and the legal profession.

60 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL STATE EX REL. OKLA. BAR the petition and a hearing was ASS’N V. MENZER, 2018 OK 46 held before the Professional The Oklahoma Supreme Court Responsibility Tribunal after which accepted James L. Menzer’s the panel unanimously recom- resignation from membership in mended her reinstatement. The the Oklahoma Bar Association. court found that Hasting had met Menzer submitted his resignation the requirements for reinstatement during the pendency of disci- including that she possessed the plinary proceedings wherein he competency and learning in the acknowledged that the Office of law, as well as the good moral General Counsel was investigat- character, required for readmis- ing eight separate complaints that sion. Hasting was reinstated to alleged he had accepted fees but the practice of law in Oklahoma failed to perform the legal ser- conditioned upon the payment of vices. The court accepted his res- 2018 membership dues. ignation which is tantamount to disbarment. Menzer cannot apply for reinstatement for a period of Ms. Hendryx is OBA general counsel. five years, must reimburse the cost of the investigation and will be required to reimburse any funds paid by the Clients’ Security Fund on claims received from his former clients as a condition precedent to reinstatement.

IN THE MATTER OF THE REINSTATEMENT OF HASTING, 2018 OK 43 Laurie L. Hasting was stricken from the rolls of Oklahoma licensed attorneys on June 25, 2013, following her suspension for nonpayment of membership dues and failure to comply with mandatory continuing legal education requirements. In 2017, Hasting filed a Petition for Reinstatement with the Oklahoma Supreme Court. The Office of the General Counsel conducted an investigation of

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 61 Board of Governors Actions Meeting Summaries

The Oklahoma Bar Association NonDoc, a journalism and media reported he attended OBA Day Board of Governors met Friday, April website based in Oklahoma City, at the Capitol, OETA Festival, 20, at the Oklahoma Bar Center in regarding the low number of law- District Attorneys Council meet- Oklahoma City. yers in the Senate, which presents ing, Oklahoma District Attorneys challenges. He attended the Bar Association board meeting, Kay REPORT OF THE PRESIDENT Center Facilities Committee meet- County Bar Association meeting, President Hays reported she ing, Bench and Bar Committee past OBA Governor John Raley’s was involved in various communi- meeting, Day at the Capitol, OETA funeral at which he delivered the cations regarding legislative mat- Festival, Bar Leadership Institute, eulogy and by phone the OBA ters, taped a segment of the Ask swearing in of new members and Communications Committee A Lawyer TV program and deliv- Annual Meeting planning meeting. meeting. Governor Hicks ered remarks at the new admittee reported he attended a Tulsa admission ceremony. She attended REPORT OF THE County Bar Foundation meeting, the OBA Family Law Section PAST PRESIDENT Tulsa County Bar Association meeting, OETA pledge drive, Creek Past President Thomas reported March board meeting, TCBF Law County Bar Association lunch, she attended OBA Day at the Day planning meeting, TCBA TCBF presentation of the film 100 Capitol and Washington County April Board meeting, Tulsa Years and OBA Annual Meeting Bar Association meeting. She lawyers supporting the Indian planning meeting. also participated as a judge at the Nations Council BSA luncheon OU College of Law Moot Court and special screening of the film, REPORT OF THE Competition. 100 Years, dealing with the Indian VICE PRESIDENT Trust Fund litigation against the Vice President Stevens reported BOARD MEMBER REPORTS Department of the Interior, which he attended Day at the Capitol, the Governor Beese reported he was a TCBF Law Day event. He March and April Cleveland County attended the Muskogee County also participated in YLD Trivia Bar Association meeting/CLE, Bar Association meeting and OBA Night at the TU College of Law as Law Day directive signing, Law Day at the Capitol. He also met a member of the winning team. Day awards ceremony and OBA with the OBA Law Day Committee Governor Hutter reported she Awards Committee meeting. chair to discuss planned activi- attended OBA Day at the Capitol, ties in District 7. Governor Coyle Canadian County Bar Association REPORT OF THE reported he attended OBA Day meeting and executive meeting PRESIDENT-ELECT at the Capitol and an Oklahoma and Bench and Bar Committee President-Elect Chesnut reported County Bar Association meet- meeting. Governor Morton he attended the Bar Leadership ing. Governor Fields report he reported he attended OBA Day Institute in Chicago and Oklahoma attended OBA Day at the Capitol, at the Capitol, Cleveland County Attorneys Mutual Insurance Co. Pittsburg County Bar Association Bar Association monthly meeting, Board of Directors meeting. meeting and OBA Professionalism William J. Holloway Inn of Court Committee meeting. Governor meeting, joint meeting of the REPORT OF THE Hennigh reported he attended the William J. Holloway and Ginsburg EXECUTIVE DIRECTOR Garfield County Bar Association inns of court and William J. Executive Director Williams meeting and OBA Day at the Holloway Inn of Court closing cer- reported he was interviewed by Capitol. Governor Hermanson emony. Governor Oliver reported

62 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL he attended Payne County Bar Spanish. Governor Williams said REPORT OF THE GENERAL Association March and April the Diversity Committee is inter- COUNSEL meetings and OBA Law-Related ested in doing a survey. Governor A written report of Professional Education Committee meeting by Fields said the Professionalism Responsibility Commission phone. Governor Will, unable to Committee is planning a CLE actions and OBA disciplinary attend the meeting, reported via seminar and has formed a matters for March was submitted email he chaired the Bar Center subcommittee to work on it. to the board for its review. Facilities Committee meeting. Governor Hutter said Bench and Governor Williams reported he Bar Committee started its meet- OBA AWARDS COMMITTEE attended OBA Day at the Capitol ing with a legislative update from RECOMMENDATIONS and Diversity Committee meet- Executive Director Williams and Vice President Stevens said the ing. He also served as presiding is recommending a rule amend- committee met, reviewed current officer for a reinstatement hearing ment regarding confidentiality, awards and customary practices. of the Professional Responsibility which will soon be submitted to The committee has no recom- Tribunal and assisted Judge Daman the Board of Governors for its mendations for new awards and Cantrell’s Pupilage Group 7 in the review. The committee is also proposes the same awards be research, preparation and serv- working on distribution of its VPO presented as last year. The board ing in a principal acting role in video, a script for a video on forcible approved the recommendation to a historical trial presentation to entry and detainer and a project present the same awards as 2017. the Council Oak/Johnson-Sontag involving unbundling of services. American Inn of Court. Governor Hutter said the Women in HIRING OF Law Committee will have a social OUTSIDE COUNSEL REPORT OF THE YOUNG mixer following its next meeting Executive Director Williams LAWYERS DIVISION in Oklahoma City, determined the reported Oklahoma City attorney Governor Richter, unable to speaker for its Oct. 19 conference Travis Pickens has been hired to attend the meeting, reported via and has created subcommittees to handle an ethics matter due to a sec- email he attended OBA Day at the work on the conference. Executive ond conflict of interest of the Office Capitol and the Canadian County Director Williams said the Bar of General Council. As reported in Bar Association monthly meeting. Center Facilities Committee met February, Mark Stonecipher was with a landscape architect to dis- hired to handle a matter related BOARD LIAISON REPORTS cuss plans for improvement and to the Professional Responsibility Governor Hermanson said the landscape proposals. The com- Tribunal, which also created a Law Day Committee has finished mittee will also look at problems conflict for the office. No invoice has filming the three main TV show with leaks involving the roof. He been received for legal services. segments, radio ads have been said no money was budgeted for purchased in Oklahoma City and repairs. Governor Hermanson said RESOLUTION TO NOMINATE Tulsa, print ads purchased in the the Communications Committee is ABA AWARD NOMINEE Tulsa World and The Oklahoman, working on finishing up a judicial The board voted to issue a reso- plus 160 newspapers across the selection education project for lution approving the nomination of state through the Oklahoma presentation to civic organizations, Oklahoma City attorney William G. Press Association, and the news including video, talking points Paul to receive the 2018 American release was translated into and a handout. Bar Association Medal.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 63 DISTRICT ATTORNEYS at the Hughes/Seminole County swearing in of Justice Darby, COUNCIL APPOINTMENT Law Day event and helped staff monthly staff celebration, staff The board approved President the TCBA’s Ask A Lawyer state- directors meeting, Section Leaders Hays’ reappointment of Greg wide hotline. Council meeting, Leadership Mashburn, Norman, to the council. Academy graduation and joint His term will expire June 20, 2021. REPORT OF THE OBA/OBF event. VICE PRESIDENT 2019 CALENDAR Vice President Stevens reported REPORT OF THE President-Elect Chesnut brought he attended the OBA Leadership PAST PRESIDENT up for discussion the scheduling of Academy graduation and recep- Past President Thomas reported the 2019 Annual Meeting, cur- tion, Seminole County Law Day she attended the OBA Leadership rently set for Nov. 6-8 in Oklahoma luncheon and Section Leaders Academy graduation and recep- City. He asked for opinions on Council meeting. He also helped tion, Washington County Bar whether there would be any ben- staff the Ask A Lawyer statewide Association monthly meeting, Ask efit to moving the date to the fol- hotline in Oklahoma City. A Lawyer program on Law Day lowing week. Discussion followed, hosted by the county bar and joint and it was decided to keep the date REPORT OF THE OBA/OBF event. as scheduled. PRESIDENT-ELECT President-Elect Chesnut BOARD MEMBER REPORTS UPDATE ON reported he attended the OBA Governor Beese reported he LEGISLATIVE SESSION Leadership Academy graduation, attended the Muskogee County Bar Executive Director Williams Pittsburg County Law Day event Association meeting, county bar briefed board members on current in McAlester, Seminole County annual banquet and assisted in Law legislative issues. Law Day event in Wewoka, Ottawa Day preparations for Muskogee County Bar Association monthly County. Governor Coyle, unable JOINT BOARD OF meeting, Oklahoma Bar Foundation to attend the meeting, reported GOVERNORS AND meeting and joint OBA/OBF event. via email he attended the OBA OKLAHOMA BAR He also participated in the mock Leadership Academy graduation. FOUNDATION EVENT trial hosted by the county bar for Governor Fields reported he President Hays shared details fourth graders on Law Day, partici- attended the Pittsburg County Law about the Thursday evening event pated in the Ask A Lawyer program Day dinner, tri-county Law Day at the Bricktown Ballpark. OBF on Law Day hosted by the county dinner in Idabel, Professionalism President Souter will throw out bar and worked on appointments to Committee meeting and OBA/OBF the first pitch. the OBA Budget Committee. joint event. Governor Hennigh reported he attended the Garfield REPORT OF THE County Bar Association meeting The Oklahoma Bar Association EXECUTIVE DIRECTOR and Leadership Academy grad- Board of Governors met Friday, May Executive Director Williams uation. Governor Hermanson 18, at the Oklahoma Bar Center in reported he attended Law Day reported he served on the faculty Oklahoma City. events in Pittsburg, Seminole, of the Prosecutor’s Boot Camp Oklahoma, Comanche and Training. He attended the District REPORT OF THE PRESIDENT Payne counties in addition to Attorneys Council meeting, President Hays reported she the tri-county (Idabel) cele- Oklahoma District Attorney’s attended the Tulsa County Bar bration. He presented CLE in Association Board of Directors Association Law Day luncheon, Seminole County, participated meeting, Courage Award pre- Payne County Bar Association in an Annual Meeting planning sentation awarded to the victims Law Day banquet, Pittsburg meeting and took part in a con- of the Perry school molestation, County Law Day banquet, Section ference with an electronic elec- Legislative Monitoring Committee Leaders Council meeting and tion vendor regarding Judicial and Law Day Committee meetings OBA/OBF joint event. She also Nominating Commission elec- by phone, medical marijuana debate presented certificates to gradu- tions. He attended the Legislative at the History Center in Oklahoma ating OBA Leadership Academy Monitoring Committee meeting, City, drug court graduation and class members, attended the recep- planning meeting with OBF picnic in Kay County and the tion for academy graduates, spoke staff regarding Annual Meeting, OBA/OBF joint function at the

64 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL He said a large number of first responders are expected to take advantage of the Wills for Heroes program when it is offered, and volunteer lawyers will be needed.

Dodgers game. Governor Hicks and other Law Day activities and for the YLD to conduct Wills for reported he attended the OBA’s OBA/OBF joint event. He also had Heroes events in Tulsa and Broken Leadership Academy graduation an email discussion with Chris Arrow, met with Legal Aid Services ceremony and Tulsa County Bar Brumit, an accountant with audit to discuss access to justice issues Association/Foundation Law firm Smith Carney, regarding and how the YLD might fit into Week luncheon. He also helped the OBA’s 2017 audit. Governor solutions to promote access to justice staff the TCBA’s Ask A Lawyer Will reported he attended the in Oklahoma and helped coordinate statewide hotline, participated in swearing-in ceremony for Justice the Canadian County Law Day the TCBA/TCBF executive direc- Richard Darby and the OBA/ events held at his office. He said tor search and selection process OBF joint function. Governor another Kick It Forward application and played in the TCBF’s Charity Williams, who was unable to to pay for OBA dues was submitted Golf Tournament. Governor attend the meeting, reported and approved – bringing the number Hutter reported she attended via email he attended the OBA of bar members helped this year to the Cleveland County executive Leadership Academy gradua- six. He said a large number of first meeting, Cleveland County Bar tion ceremony, Tulsa County responders are expected to take Association Law Day events Bar Association/Foundation advantage of the Wills for Heroes and joint OBA/OBF event at Law Week luncheon, swearing-in program when it is offered, and the Dodgers game. Governor ceremony for Supreme Court volunteer lawyers will be needed. Kee reported he attended Law Justice Richard B. Darby and OBA President Hays suggested contacting Day events in Stephens County, Diversity Committee meeting. He the Tulsa County Bar Association Pittsburg County, McClain County also helped staff the TCBA’s Ask with the request for volunteer help. and the tri-county event in Idabel. A Lawyer statewide hotline and He said the Garvin County Bar participated in the TCBA/TCBF REPORT OF THE SUPREME Association combined its activities executive director search and COURT LIAISON with McClain County. Judge Leah selection process. Justice Edmondson reported Edwards held a mock trial in front Justice Kauger issued an invitation of students from each county. REPORT OF THE YOUNG to all board members to attend the Governor Morton reported he LAWYERS DIVISION upcoming Sovereignty Symposium. attended the Oklahoma County Governor Richter reported he The full program is available in the Bar Association Law Day awards attended the ABA YLD Spring current Oklahoma Bar Journal. luncheon, Legislative Monitoring Conference in Louisville, Kentucky, Committee meeting and joint and Robert J. Turner Inn of Court BOARD LIAISON REPORTS OBA/OBF event. He also helped meeting and closing banquet. Governor Hutter said the staff the Ask A Lawyer statewide He also participated in a YLD Women in Law Committee hotline giving free legal advice. volunteer service project at the continues to plan for its Oct. 19 Governor Oliver reported he Festival of the Arts in Oklahoma conference and to recruit spon- attended the Payne County Bar City to support the Arts Council, sors. Governor Hermanson said Association Law Day banquet transacted two separate requests the Law Day Committee held its

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 65 last meeting just before the event on Judicial Elections. Judge APPOINTMENTS and will meet again in early June. Morrissey explained the amend- TO PROFESSIONAL Governor Hicks said the Access ments are being proposed for RESPONSIBILITY TRIBUNAL to Justice Committee is working the Committee on Judicial The board approved President with Administrative Director of Elections, formerly known as the Hays’ appointments of Jeff the Courts Jari Askins on cre- Baker Commission. She said the Trevillion, Oklahoma City, and ating uniform forms for court proposed changes involve the Melissa DeLacerda, Stillwater, clerks. Governor Morton said the disclosure of the hearing panel’s to the PRT with terms to expire Legislative Monitoring Committee report and public statement of 06/30/2021. will have a debriefing meeting the appellate panel’s final deci- after the legislative session ends sion that would prevent misuse UPDATE ON with the date tentatively set for of the current rules and allow for LEGISLATIVE SESSION Aug. 14. The committee also plans discretion in publishing reports. Executive Director Williams to offer training for attorneys on She described two examples of briefed board members on recent how to propose legislation and to abuses. The board approved the legislative actions and said there is repeat training for new legislators rule amendments that will be the possibility of a special session. called Law School for Legislators. submitted to the Supreme Court Rep. Chris Kannady, who is an for its consideration. NEW MEMBER BENEFITS OBA member, said he thinks it is Executive Director Williams a good idea. President Hays said APPLICATIONS TO SUSPEND said the OBA Member Services about half the sections participated AND STRIKE BAR MEMBERS Committee reviewed six products in a Section Leaders Council con- FOR FAILURE TO PAY DUES that are online practice manage- ference call. The focus of discussion AND COMPLY WITH MCLE ment solutions and recommended was the Annual Meeting. Governor REQUIREMENTS them. He said an exclusive arrange- Fields said the Professionalism Executive Director Williams ment with one vendor is no longer Committee has planned a three- reviewed the process for suspen- a good strategy. A better strategy hour afternoon CLE seminar for sion and striking of bar members for the association is to offer mem- Sept. 21. They are working with the and the extensive efforts made to ber discounts on a variety of prod- OBA CLE Department. notify members before applications ucts that allow bar members to take are filed. The board authorized advantage of the products that are REPORT OF THE Executive Director Williams to the best fit for their practices. The GENERAL COUNSEL file the applications to suspend for OBA has executed agreements with General Counsel Hendryx failure to pay 2018 dues, to suspend Clio, CosmoLex, MyCase, Practice updated the board on pending for failure to comply with 2017 Panther, Rocket Matter and Zola civil litigation wherein the OBA MCLE requirements, to strike for Suite, which provide the OBA with is a defendant in a civil matter failure to reinstate after suspension a royalty based on member utili- pending in Oklahoma County. for nonpayment of 2017 dues and zation. Management Assistance A written report of Professional to strike for failure to reinstate after Program staff members will help Responsibility Commission suspension for noncompliance with members train on these products. actions and OBA disciplinary 2016 MCLE requirements. matters for April was submitted to the board for its review.

PROPOSED AMENDMENTS TO RULES FOR THE COMMITTEE ON JUDICIAL ELECTIONS Judge David B. Lewis said A better strategy for the association is to offer Judge Linda Morrissey presented recommendations to the member discounts on a variety of products that OBA Bench and Bar Committee, chaired by Prof. David Swank allow bar members to take advantage of the and himself, for amendments to the Rules for the Committee products that are the best fit for their practices.

66 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Noble County Bar Association prepared wills, powers of attorney The Oklahoma Bar Association Board meeting and District Attorney and advanced directives for 16 of Governors met Thursday, June 21, Council’s Technology Committee first responders at no cost. at the River Spirit Casino Resort in meeting. He attended the Ponca Tulsa in conjunction with the Solo & City Chamber of Commerce BOARD LIAISON REPORTS Small Firm Conference. board meeting, OBA Legislative Governor Oliver said the Lawyers Monitoring Committee meeting by Helping Lawyers Assistance REPORT OF THE PRESIDENT phone, District Attorneys Council Program Committee is working President Hays reported she board meeting and Oklahoma on training for member counsel- delivered the welcoming remarks District Attorneys Association ing and preparing for the ABA at the Sovereignty Symposium and board meeting. Governor Hicks to come evaluate the program. presented 50-, 60- and 70-year ser- reported he attended the Tulsa The hotline is receiving increased vice pins at the Oklahoma County County Bar Foundation golf calls about aging lawyers. The Bar Association awards luncheon. tournament wrap-up meet- committee is meeting tomorrow ing, TCBA special meeting to at the conference and is consid- REPORT OF THE appoint a new executive director, ering another vendor to handle VICE PRESIDENT TCBF Board of Trustees meeting, the hotline calls. Governor Hutter Vice President Stevens reported he Tulsa race riot memorial event, reported the Women in Law attended the joint OBA-OBF event at Tulsa County Judicial Election Committee has met twice since the the ballpark and the June Cleveland Forum and TCBA interior reno- last board meeting. The keynote County Bar Association meeting. vation meeting. Governor Hutter speaker for its upcoming confer- reported she attended the OBA ence is Lis Wiehl, former Fox News REPORT OF THE Women in Law Committee meet- legal analyst who will speak on PRESIDENT-ELECT ing and the Cleveland County Bar “Breaking the Glass Ceiling.” They President-Elect Chesnut reported Association executive meeting and have added a new event, which is a he attended the joint OBA-OBF regular meeting. Governor Morton clothing drive for Suited for Success event at the ballpark, Sovereignty reported he attended the Legislative in August. Governor Williams Symposium and OAMIC Board of Monitoring Committee meeting said the Diversity Committee has Directors meeting. and Oklahoma County Criminal confirmed a speaker for its awards Defense Lawyers Association dinner in the fall. Planning contin- REPORT OF THE monthly meeting. Governor Oliver ues for its boot camp, which is a free EXECUTIVE DIRECTOR reported he attended the Payne review class for college students tak- Executive Director Williams County Bar Association meeting ing the LSAT exam. The committee reported he attended the YLD and OBA Lawyers Helping Lawyers is seeking award nominations for its board meeting, Legislative Assistance Program Committee Diversity Awards, and he will email Monitoring Committee meeting, meeting. Governor Williams information to the board. Governor monthly staff celebration, meeting reported he attended all-day inter- Oliver said the Law-Related with a LHLAP service provider views of candidates for the Tulsa Education Committee is reviewing regarding proposed changes in County Bar Association/Tulsa its webpages and advising OBA program services, meeting with County Bar Foundation executive staff of updates, so updated content the OBA’s legislative liaison and director position, TCBA Board of can be created for the OBA’s new Oklahoma County Bar Association Directors and Energy Law Section website. Governor Morton said the awards luncheon. He conducted May meetings and OBA Diversity Legislative Monitoring Committee staff evaluations and spoke at the Committee meeting. will hold a debrief session on Aug. HOBY Leadership Conference. 14 at the bar center. REPORT OF THE YOUNG BOARD MEMBER REPORTS LAWYERS DIVISION REPORT OF THE Governor Beese reported he Governor Richter reported GENERAL COUNSEL attended the Muskogee County he chaired the YLD board meet- General Counsel Hendryx Bar Association meeting. ing and attended the YLD Wills reported the OBA is still involved Governor Hermanson, unable for Heroes Committee meeting. in litigation as an association, to attend the meeting, reported He just came from the Wills for and she shared details with via email he spoke to the Perry Heroes event in Broken Arrow board members. A written report Lions Club and chaired both the at which nine YLD members of Professional Responsibility

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 67 Commission actions and OBA dis- revised rule allows those apply- for online CLE programs. The ciplinary matters for May was sub- ing for academic licensure the transition will take place by July 1, mitted to the board for its review. option of submitting state-issued which will be a significant savings criminal background reports in each month. She said the magazine APPOINTMENTS TO lieu of an approved law student showcasing fall CLE programs will THE PROFESSIONAL registration through the Board of be coming out in August. RESPONSIBILITY TRIBUNAL Bar Examiners. In July 2017 the The board approved the recom- committee approved a new reg- LAW DAY REPORT mendations of President Hays to ulation that outlines procedures Law Day Committee Co-Chairs reappoint Gerald L. Hilsher, Tulsa, for submission and review of the Roy Tucker and Kara Pratt and to appoint Roy D. Tucker, background reports. The board reviewed the results of this year’s Muskogee, with terms expiring accepted the committee’s report. Law Day events. Highlights from 6/30/2021, and Linda Pizzini, the report were 909 contest entries Yukon, to replace Murray Abowitz, CONTINUING LEGAL from 55 schools in 19 counties. The whose term expires 6/30/2019. EDUCATION 2017 volunteer efforts of 239 lawyers ANNUAL REPORT giving free legal advice in the Ask BUDGET COMMITTEE Educational Programs Director A Lawyer statewide project helped APPOINTMENTS Damron said although it is getting 1,418 people who called and 361 The board approved President- more difficult to compete with the people who emailed legal ques- Elect Chesnut’s recommendations increasing number of approved tions. Lawyers volunteered 515 to appoint to the Budget Committee: providers and free CLE available, hours and donated $77,325 in bill- OBA CLE remains the largest able hours. The Ask A Lawyer TV House of Delegates members – provider of CLE for Oklahoma show on OETA included segments Brandi Nowakowski, Shawnee; attorneys. Programs are offered in on mental health court, estate plan- Dietmar Caudle, Lawton; Brian T. a variety of formats – in person, ning and expungement. Promotion Hermanson, Newkirk; James R. live webcasts, audio, on-demand efforts resulted in an estimated Hicks, Tulsa; and Angela Ailles archived programs available 24/7 4.51 million impressions. The Law Bahm, Oklahoma City and in-house replays. The total Day Committee was thanked for its number of people attending in-per- work on the successful project. Board of Governors – Nathan son seminars declined in 2017 in Richter, Mustang; Alissa Hutter, part because the Supreme Court did RULES ON JUDICIAL Norman; and Matthew C. Beese, not cosponsor free movie nights, ELECTIONS Muskogee which were very popular. She said Executive Director Williams seminars in Tulsa are a hard sell suggested the board might want Attorney Members – Sonja Porter, because the county bar provides 12 to reconsider the proposed Oklahoma City; Jeremy Beaver, hours of free CLE with bar member- amendments for the Committee McAlester; Cody Hodgden, ship. OBA sections continue to offer on Judicial Elections suggested by Woodward; and Susan Shields, free CLE to section members, and the Bench and Bar Committee that Oklahoma City. typically only five sections partner were sent to the Supreme Court with the CLE Department. following last month’s meeting. LEGAL INTERNSHIP Overall, there was a slight Discussion followed. The board COMMITTEE ANNUAL decrease in net revenue, but online voted to recall the information REPORT participation continues to grow. sent to the Supreme Court. Governor Hennigh reported President-Elect Chesnut said next the Legal Internship Committee year a task force will be created to NEXT MEETING has prepared its annual report review CLE and to make rec- The Board of Governors met in for July 1, 2017 – June 30, 2018 to ommendations. He asked board July via BlueJeans conferencing. the Supreme Court. In 2016-2017 members to let him know if they A summary of those actions will the committee worked toward have an interest in this subject. be published in the Oklahoma proposed rule changes to enable Director Damron announced as the Bar Journal once the minutes are more out-of-state law students result of poor customer service and approved. The next board meeting the opportunity to participate quality of service that has deterio- will be at 10 a.m. Friday, Aug. 24, as licensed legal interns, which rated, the OBA is changing back to in Duncan. the Supreme Court approved. A InReach, the OBA’s original vendor

68 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Bar Foundation News

Why We Invest in Oklahoma Courts By Candice Jones-Pace

MAGINE THE ANXIETY OF to make technological updates caus- The five 2018 court grant recip- Ihaving one cassette tape left ing court staff to worry about future ients, each with unique needs, col- to record hearings on obsolete hearings and heavy caseloads. lectively handle over 242,000 cases equipment or presenting your In 2008, the Oklahoma Bar per year. These heavy caseloads side of an important case with Foundation created a Court Grant and the tech-related problems the a malfunctioning audio/video Fund to help remedy issues like courts experience remind us why system. These stories, along with these. Ten years later, we have pro- we invest in Oklahoma courts. many similar ones, are far too vided 54 of the 77 counties with These are the real stories of our common in Oklahoma court- grants totaling close to $800,000. 2018 grantees. rooms. The phrase “we are expe- Helping improve the administra- riencing technical difficulties” is tion of justice in the Oklahoma LINCOLN COUNTY popular among court staff who court system has become a big DISTRICT COURT are doing their best to operate as part of the OBF mission, and efficiently as possible using anti- it is our goal to provide all 77 Grant Amount: $18,042 quated equipment. Due to budget Oklahoma counties access to the Grant Type: Audio/Video restraints, funds are not available technology they need. Renovation Cases Per Year: 3,500 People Impacted: 2,500

In the Lincoln County District Court, it is a common occurrence to have major delays during jury terms because of technical difficulties. The audio system consists of a battery-operated microphone with limited reach making it difficult to hear. The visual system is 20 years old, and each party must provide their own access to the screen by running a set of cables across the courtroom floor. This is not only time consuming, but poses a haz- ard to those walking through the courtroom. This grant will fund a complete audio/video renovation with wireless capabilities. Lincoln County bar members in front of the courthouse’s newly installed audio/video equipment are (from left) Court Clerk Cindy Kirby, Larry Lenora, Sarah Bridge, Patrick Thompson, Judge Cindy Ashwood, Judge Sheila Kirk, Assistant District Attorney Patricia High and Charles Thompson.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 69 OKFUSKEE COUNTY DISTRICT COURT

Grant Amount: $17,889.63 Grant Type: Video- Conferencing System Cases Per Year: 1,500 People Impacted: 5,000 Oklahoma County Law Library staff Three of the 10 public access In Okfuskee County, construc- member Jovanna Johnson on one of 10 computers at the Oklahoma County tion is underway for a new jail public access computers. Law Library. located several miles away from The Tulsa County District the county courthouse. Court staff accessed 58,000 times in the last Court wants to level the playing worries when the new jail is com- six months. This grant will update field between the average litigant plete, funds will not be available the current operating system on and litigants in high-dollar civil to hire enough adequately trained each computer which will increase trials. As it stands now, the aver- deputies and jailers to safely and security, program usability and age litigant is provided a laptop effectively hold court on a consis- website compatibility. for use in trial with a presentation tent basis. This issue will not only PAWNEE COUNTY projector. The grant for an inter- impair their ability to hold hear- DISTRICT COURT active display board will give ings in a timely and organized both sides equal advantage to manner, but could create public present evidence in both jury safety concerns by transporting Grant Amount: $9,217 and nonjury trials. inmates to and from the court- Grant Type: Courtroom house daily. This grant will fund a Audio/Visual INTERESTED IN APPLYING video-conferencing system allow- Equipment FOR AN OBF COURT GRANT? ing criminal hearings to be held Cases Per Year: 2,890 District and appellate courts via video conference. People Impacted: 3,000 in Oklahoma can apply annually OKLAHOMA COUNTY At the Pawnee County District for grant funding for courtroom LAW LIBRARY Court, each attorney and the DA technology and needs related to must bring their own equipment the administration of justice. The OBF will be accepting applications Grant Amount: $1,347 to display exhibits, play video in the spring of 2019. Follow us on Grant Type: Operating depositions or present audio/video Facebook, Twitter and LinkedIn to System Update evidence to the court. This process get grant updates and announce- and Repairs for makes each trial very time consum- ments. You can also email us at Public Access ing especially with jurors viewing [email protected] to be placed Computers exhibits one at a time. This grant on a notification list. We will email Cases Per Year: 135,000 will fund audio/visual equipment you the link for the court grant People Impacted: 60,000 for the main courtroom which will improve sound during testimony application once it is live. For more information about The Oklahoma County for the judge and court reporter. court grants visit www.okbarfoun- Courthouse is a very busy place The large screen will allow jurors dation.org/grants/court-grants. with 990,000 people reported to simultaneously view exhibits. coming through the doors in 2017. TULSA COUNTY The Law Library Public Access DISTRICT COURT Computer Room, previously Ms. Jones-Pace is director of funded by an OBF court grant, development and communications provides a place for attorneys Grant Amount: $5,445 for the Oklahoma Bar Foundation. and pro se litigants to access the Grant Type: Interactive Westlaw and LexisNexis data- Display Board bases. The law library reports Cases Per Year: 100,000 the Westlaw database has been People Impacted: 1,500

70 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL

Young Lawyers Division Summertime Edition By Nathan D. Richter

YLD members attending the Midyear Meeting enjoyed the camaraderie of a social event at the Flying Tee in Tulsa.

72 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL T IS HOT! HOT OFF THE PRESS WILLS FOR HEROES Ithat is. Despite vacations, pool par- Many moons ago, the division ties and the general summer shenan- assumed responsibility for the igans we all enjoy while the kids are Wills for Heroes project. For those out of school, the YLD has continued of you who may not be famil- to meet and work throughout the iar with the program, Wills for summer. Most recently, the YLD Heroes is designed to provide free held its Midyear Meeting in June wills to emergency personnel in at the River Spirit Casino in Tulsa. Oklahoma. For more information, The meeting was held in conjunc- go to the YLD’s committees and tion with the Solo & Small Firm projects webpage. Recently, the Conference. For those of you able to YLD conducted a Wills for Heroes attend, I know you had a wonderful event in Broken Arrow serving time, and it was fantastic getting to Broken Arrow’s finest by providing see you. For those of you who did not free wills to the city’s first respond- have the chance to attend, mark your ers. The event was a success, and calendars for June 20-22, 2019. You there are plans being developed for will not regret it. The Solo & Small a second Wills for Heroes event in Firm Conference is the perfect oppor- Tulsa. If you are interested in help- tunity to collaborate and get to know YLD board members gathered on ing with these events, contact me or lawyers from across Oklahoma. a Saturday to stuff survival kits for Dylan Erwin at derwin@holladay- students taking the bar exam. chilton.com for more information. BAR EXAM SURVIVAL KITS It has been a busy but fulfilling July means bar exam preparations YOUNG ADULT GUIDE summer, and the YLD continues have begun! The YLD prepared and Our 2017 YLD Chair Lane to set the standard for service. The distributed the bar exam survival Neal gave us the gift that keeps young lawyers are dedicated to kits to all of the people taking the on giving! Mr. Neal lead the advancing the legal profession in Oklahoma bar exam. With hundreds charge to update the “Young Oklahoma while adhering to the of eager applicants sitting for the bar Adult Guide,” a YLD publication profession’s creed, values and ideals. exam at testing sites in Oklahoma with the purpose of assisting While my tenure as YLD chair is City and Tulsa, the bar exam survival young people with their tran- more than halfway complete, work- kits program is no small undertaking. sition to adulthood. The YLD ing with the young lawyers has been YLD board members assembled the expanded this project by work- and will continue to be my greatest kits prior to our July meeting using ing with our application vendor honor. We can hardly contain our a highly sophisticated assembly line to develop the Young Adult excitement for what’s to come. operation that would put Ford Motor Guide application first for Co. to shame! In all seriousness, only iPhone users and now for the diligent, hard work of our board Android devices. Now, the Mr. Richter practices in Mustang members makes the operation a guide may be downloaded on and serves as the YLD chairperson. success, and their selfless sacrifice all mobile devices thereby allow- He may be contacted at nathan@ of summer weekend time with their ing greater and more convenient dentonlawfirm.com. Keep up with families makes this project possible. access to its users. the YLD at www.facebook.com/yld.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 73 For Your Information

JAMES WILLIAMSON NAMED SECRETARY OF STATE Gov. Mary Fallin named James Williamson, who has served as her general counsel, as secretary of state. As secretary of state, he will serve as a senior adviser to the governor on policy, economic and legal issues. From 2010 to 2012, Mr. Williamson served as senior policy analyst and chief legal counsel to then-Senate President Pro Tempores Glenn Coffee OBA URGES CAUTION and Brian Bingman. REGARDING SQ788 “James, as my general counsel, is a trusted adviser to my administra- Following the passage of SQ tion,” Gov. Fallin said. “I appreciate his legal and legislative knowledge. 788, a working group was estab- As secretary of state, he will be in a better position to help in my efforts to lished, and President Hays called implement fiscally conservative, pro-growth and conservative policies.” a meeting to request the Rules of Before his gubernatorial appointment, he had been in private practice Professional Conduct Committee since 1975. He served 18 years in Oklahoma’s Legislature, representing prepare language regarding the Tulsa in both the Oklahoma House of Representatives and the state Senate. issue to be presented to the House “I’ve enjoyed serving the governor, and am honored that she entrusted of Delegates during the Annual me with this added responsibility,” Mr. Williamson said. “I look forward Meeting. Until then, the OBA urges to having a more active role in helping her bring new jobs and additional caution due to ramifications of state opportunities to our state.” and federal law being in conflict. Mr. Williamson earned his bachelor’s and law degrees from TU. OBA members may also want to contact their malpractice insurance carrier if they intend to give JIM ROTH APPOINTED OCU advice or provide representation on SCHOOL OF LAW DEAN issues relating to the passage of the Jim Roth has been appointed as state question. Members may also OCU’s next law dean. Mr. Roth, a for- contact the OBA ethics counsel at mer Oklahoma County commissioner [email protected]. and Oklahoma Corporation commissioner, began his term as dean July 1. “Jim’s appointment follows a ASPIRING WRITERS thorough national search process and TAKE NOTE his selection from the robust pool of We want to feature your work applicants is a testament to his strong on “The Back Page.” Submit arti- leadership skills and his vision to cles related to the practice of law, grow OCU law,” OCU Past President or send us something humorous, Robert Henry said. transforming or intriguing. Poetry Mr. Roth is an alumnus of the OCU School of Law, earning his J.D. is an option too. Send submis- in 1994. He also holds graduate certificates from Harvard University’s sions of about 500 words to OBA Kennedy School of Government, the United States Air War College’s Communications Director Carol National Security Forum at Maxwell Air Force Base and the Institute Manning, [email protected]. of Public Utilities at Michigan State University. In 2017, he served as the OCU School of Law inaugural distinguished practitioner in residence, teaching a class on energy regulation. He serves on the boards of United Way of Central Oklahoma, Central Oklahoma Humane Society and the Arts Council of Oklahoma City, among others.

74 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL OBA MEMBER REINSTATEMENTS The following members suspended for nonpayment of dues or noncompliance with the Rules for Mandatory Continuing Legal Education have complied with the requirements for reinstatement, and notice is hereby given of such reinstatement:

Jade Caldwell John Thomas Green Randolph Lee Marsh OBA No. 31820 OBA No. 32944 OBA No. 17313 12316A N. May Ave., Ste. 216 121 E. Grand Avenue 5 Timber Creek Circle Oklahoma City, OK 73120 Ponca City, OK 74601 Shawnee, OK 74804

Sarai Cook James Michael Grier Nathan Andrew McCaffrey OBA No. 31374 OBA No. 20916 OBA No. 20090 413 W. Britton Rd., Apt. 316 3515 W. 75th Street, Suite 102 112 N.E. 4th St. Oklahoma City, OK 73114 Prairie Village, KS 66208 P.O. Box 1739 Guymon, OK 73942 Charles N. Cottrell Jacob Russell Lee Howell OBA No. 32588 OBA 30874 Jessica C. Ridenour 4511 Briarwood Terrace P.O. Box 767 OBA No. 20758 Marshall, TX 75672 Van Buren, AR 72957-0767 1617 S. Cheyenne Ave. Tulsa, OK 74119 Grant Chase Garrard Katherine Eileen Koljack OBA No. 30085 OBA No. 31123 Demetria Nicole Williams 11248 Broomfield Ln., Unit 216 1543 S.W. Blvd., Apt. 9J OBA No. 20942 Broomfield, CO 80021 Tulsa, OK 74103 P.O. Box 5894 Albany, GA 31706 Joyce Ann Good Michelle Lee Lester OBA No. 14722 OBA 18582 Kajeer Yar 1705 Smoking Tree Road 2317 S. Jackson, Suite 322 OBA No. 18162 Moore, OK 73160-5725 Tulsa, OK 74107 2651 E. 66th Street Tulsa, OK 74136

IMPORTANT UPCOMING HELP YOUNG ADULTS DATES UNDERSTAND THEIR RIGHTS Don’t forget the Oklahoma Bar AND RESPONSIBILITIES Center will be closed Monday, Do you know a young adult or Sept. 3, in observance of Labor someone who soon will be? The Day. Be sure to docket the OBA Young Lawyers Division has updated Annual Meeting to be held in the Young Adult Guide, and it is now Tulsa Nov. 7-9. available as a mobile app. The app is full of helpful legal information young adults need and will be updated to keep pace with changes in the CONNECT WITH THE OBA law. It is available for all devices. If you know students, parents, teachers THROUGH SOCIAL MEDIA or administrators who could use the app, it can be found by searching for Have you checked out the OBA “OBA Young Adult Guide” in the App Store and Google Play. Facebook page? It’s a great way to get updates and information about upcoming events and the LHL DISCUSSION GROUP HOSTS SEPTEMBER MEETING Oklahoma legal community. Like “Technology: Friend or Foe?” will be the topic of the Sept. 6 meeting of our page at www.facebook.com/ the Lawyers Helping Lawyers monthly discussion group. Each meeting, OKBarAssociation and be sure to always the first Thursday of the month, is facilitated by committee mem- follow @OklahomaBar on Twitter bers and a licensed mental health professional. The group meets from 6 to and @OKBarAssociation on 7:30 p.m. at the office of Tom Cummings, 701 N.W. 13th St., Oklahoma City. Instagram. There is no cost to attend and snacks will be provided. RSVPs to onelife@ plexisgroupe.com are encouraged to ensure there is food for all.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 75 OBA MEMBER RESIGNATIONS The following members have resigned as members of the association and notice is hereby given of such resignation:

Seth Brandon Baer Louis Klieger Michael C. Smith OBA No. 30333 OBA No. 5074 OBA No. 8383 2358 S. Delaware Ct. 11 Park Place, Ste. 1208 308 Green Hill Dr. Tulsa, OK 74114 New York, NY 10007 Anderson, SC 29621

Blake Marcus Bostick Robert Arthur Leinau Robert Timothy Stephenson OBA No. 13638 OBA No. 18413 OBA No. 14325 1302 Nadine 66 Village Road 6104 Golf Estates Ct. Ada, OK 74820 Surry, NH O3431 Laytonsville, MD 20882

Steven Edward Bracklein Francis Joseph Martin Lucia Alexandrea Walinchus Thayer OBA No. 15116 OBA No. 22360 OBA No. 32162 P.O. Box 172 P.O. Box 5722 5851 Copper Ct. Victor, CO 80860 Glendale, CA 91221 Grove City, OH 43123

Christina Michelle Bray Ashley Elizabeth Norman OBA No. 16184 OBA No. 33319 P.O. Box 341 13 Mills Drive Temple, PA 19560 Bella Vista, AR 72714

Mary Ellen Christopher Brandon James Norris OBA No. 33329 OBA No. 31864 Shawnee County Courthouse 585 S.W. 1st Street 200 S.E. 7th Room B6 Madras, OR 97741 Topeka, KS 66603-3922 Whitney Daley Petty (nka Mason) Chris A. Clements OBA No. 21029 OBA No. 17775 17801 Flagler Drive 2029 Vanesta Pl. Austin, TX 78738 Manhattan, KS 66503-0447 Robert Bruce Phillips Rodney Lin Cook OBA No. 13333 OBA No. 1872 The Phillips Law Firm PC 1212 N. Eastern Ave. P.O. Box 592403 Oklahoma City, OK 73131 San Antonio, TX 78259 Rachel Therese Csar Amy Glass Piedmont OBA No. 22538 OBA No. 21322 1820 E. Bell DeMar Drive, Apt. 221 44563 Aspen Lane Tempe, AZ 85382 California, MD 20619

Kelsey Dian Foligno Angela Lynne Porter OBA No. 22385 OBA No. 32854 1909 Uplands Dr. 567 E. 36th St. North Plano, TX 75025 Tulsa, OK 74106-1812

C. Lou Klaver Scott Alan Seelhoff OBA No. 11661 OBA No. 32955 6509 N.W. 115th Street 4830 County Rd. 237 Tulsa, OK 73162 Wharton, TX 77488

76 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Bench and Bar Briefs

ON THE MOVE

Alexandra G. Ah Loy and Erin Pamela Goldberg has been elected Ryan Anderson joined McAfee Blohm were named partners with a new member of Hall Estill’s & Taft’s Tax and Family Wealth Johnson Hanan Vosler Hawthorne Executive Committee, and Samantha Group. His practice encompasses & Snider. Ms. Loy and Ms. Blohm’s Davis, Kyle Freeman and Kent areas of individual and business experience extends across all of Gilliland have been elected as new taxation, tax structuring of busi- the firm’s practice areas with a members of the firm’s Board of ness transactions, business entity focus on medical malpractice Directors. Ms. Goldberg, a resident selection and formation and the defense, civil rights defense, civil of Tulsa, practices primarily in the litigation of tax matters in state litigation and various in-house commercial transaction and com- and federal courts. matters for corporate clients. mercial litigation areas. Ms. Davis concentrates her practice on estate Leslie L. Vincent joined the Robert E. Reavis II joined Morrow, planning, estate and trust adminis- Department of Interior’s Rocky Watson & James in Miami. He tration, guardianship and taxation Mountain Regional Solicitor’s recently retired as associate district and works in the Tulsa office. Mr. Office as an assistant regional solic- judge for Ottawa County and will Freeman, also Tulsa resident, con- itor. She will supervise the Federal be of counsel to the firm. centrates his practice in the corporate and Indian Royalties Section. and commercial area. Mr. Gilliland Rusty Smith opened Rusty Smith practices primarily in the banking Jesse Chapel joined Hartzog Law Group PLLC. The firm is and commercial areas and is located Conger Cason & Neville. He is a located in Muskogee and the phone at the Oklahoma City office. former shareholder of Andrews number is 918-912-2000. Mr. Smith Davis and will join the firm’s tax, focuses his practice on personal L. Mark Walker has been appointed estate planning and corporate law injury, catastrophic loss, wrongful chair of Crowe & Dunlevy’s Energy, practice areas. death, insurance claims and gen- Environment & Natural Resources eral civil litigation statewide. Practice Group. He will lead a team Mark B. Toffoli, formerly of coun- of more than 30 attorneys regarding sel with Andrews Davis, joined Robert Don Gifford opened the energy and environmental matters. the Gooding Law Firm PC. He law firm of Gifford Law PLLC will continue to represent debtors in Oklahoma City. The firm’s Jeff Haughey and A.J. Hofland and creditors in bankruptcy pro- practice will focus on federal joined GableGotwals as of counsel ceedings and practice loan restruc- criminal practice, tribal courts, in the Tulsa office, and Jace White turings, business transactions and family law, military law and civil joined the firm as an associate attor- receivership and insolvency law. rights. The firm can be reached at ney in the Oklahoma City office. 405-810-5406. Mr. Haughey focuses his practice on Peter L. Scimeca, Ryan J. Duffy mergers and acquisitions, securities and C. Morgan Dodd joined Hetherington Legal Services and corporate matters. Mr. Hofland Fellers Snider. Mr. Scimeca focuses PLLC has moved. Their new practices primarily general litiga- his practice on criminal defense address is 301 E. Eufaula St., tion, commercial law, white-collar and business litigation. Mr. Duffy Norman, 73069, and their phone criminal defense and government practices oil and gas law, estate number is 405-329-6600. relations litigation. Mr. White planning and administration, practices general litigation. federal and state tax, corporate Andrews Davis Law Firm has organization, transactional law, closed its doors after 77 years. The real estate, securities, nonprofit firm is thankful and proud of the organizations, commercial litiga- role it has played in the business tion and probate. Mr. Dodd has life of Oklahoma City and the state experience in oil and gas law and of Oklahoma. title examination.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 77 KUDOS

Mike Turpen of Oklahoma City Brandon Long of Oklahoma City Sen. Kay Floyd has been elected has been inducted into the TU was elected president of SouthWest Senate democratic leader for the College of Law Hall of Fame. This Benefits Association. SWBA is an 57th Oklahoma Legislature. She honor is bestowed annually to industry organization for benefits will be the first woman to lead a a small number of alumni and professionals. Mr. Long advises caucus in the Oklahoma Senate. friends for their distinguished and represents clients in matters contributions to the legal profes- involving qualified retirement Angela Barker-Jones of Tahlequah sion and tireless support of the plans, health and welfare plans received the Oklahoma Indigent college of law. and executive compensation. Defense System 2018 John Adams Award for Outstanding Advocacy. Carl Buckholts, E.J. Buckholts Edna Mae Holden of Enid has This award honors an outstanding II, Scott Stone, Carrie Hixon and been elected to the Oklahoma county contract attorney. Joe White received the Legal Aid Hall of Fame Board of Directors at Services Pro Bono Recognition the Gaylord-Pickens Museum in Holly Cinocca wrote Greetings from Award. This award recognizes Oklahoma City. The OHF is tasked LeFlore County. The book details attorneys in the community who with “telling Oklahoma’s story her family’s real-life adventures have offered outstanding pro bono through its people.” when her husband and law part- services in the past year. ner decides to become a United Douglas J. Sorocco of Oklahoma Methodist pastor in a small, rural Cynthia Corley, who died earlier City received the 14th annual Urban Oklahoma town. this year, was the recipient of the Pioneer Award. The award is given Stephens County Bar Association to individuals in the community Brian K. Morton and Sonja Liberty Bell Award. The Liberty who exemplify Oklahoma’s pioneer- Porter of Oklahoma City were Bell Award is given annually to ing spirit with their leadership and awarded the Thurgood Marshall recognize an outstanding mem- commitment to urban revitalization. Appellate Advocacy Award from ber of the community for all the the Oklahoma Criminal Defense things they have done to give Maren Minnaert Lively of Tulsa Lawyers Association. The award back. Ron Corley, Hank Corley was selected to the 2018 professional was for their constitutional chal- and Cate Buckley accepted the class of “40 Under 40” by Oklahoma lenge to Senate Bill 643 before award on behalf of Ms. Corley. Magazine. The class represents the the Oklahoma Supreme Court best the state has to offer in virtually in Hunsucker v. Fallin. Robert Don Gifford of Oklahoma all fields of business with a common City was appointed civil district interest to put Oklahoma on the court judge for the Miami Tribe of map as a state of the future. Oklahoma. Mr. Gifford also serves as the chief judge for the Kaw Nation and as an associate justice for the Iowa Tribe Supreme Court.

AT THE PODIUM

Adria Berry of Oklahoma City Alan Holloway of Oklahoma City in-depth coverage of issues in presented concerns about the spoke at the 42nd annual Advanced estate planning and probate, language in State Question 788 at Estate Planning & Probate Seminar. including tax planning, charitable public forums held in Edmond The seminar is a four-day event gifts, fiduciary issues and trust and Guthrie. attended by attorneys throughout administration. the state of Texas and provides

78 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL In Memoriam

erry Charles Blackburn of for her work as a child advocate in vis Lynn Swander Miller JEdmond died Aug. 2, 2017. the Oklahoma family court system. Aof Tulsa died June 28. She He was born Sept. 6, 1948, and She loved horseback riding instruc- was born April 9, 1958, in Rolla, attended John Marshall High tion and worked with a number of Missouri. She graduated from School. He received his J.D. from students who found the instruction Bixby High School, OSU and the OCU School of Law. Friends therapeutic and healing. the O.W. Coburn Law School and family will remember him for at Oral Roberts University. Ms. his compassion, lively and kind ictor Roy Kennemer of Miller practiced law for several personality and his loyalty. VWewoka died June 23. years before deciding to stay at He was born April 15, 1944, in home with her children. Later, ustin Michael Blumer of Charlottesville, Virginia. He she returned to work at the TU JMannford died May 17. He was attended Shaddick, a military College of Law Boesche Legal born Aug. 19, 1987, in Waynesburg, high school in Minnesota, OU and Clinical. She loved traveling, Pennsylvania. He graduated from graduated from the OCU School of reading, watching movies, attend- West Green High School in 2005. Law in 1973. He served as a coming TU basketball games and her He received his Bachelor of Arts missioned officer in the U.S. Army. church. She will be remembered in 2009 and his J.D. in 2013, both Mr. Kennemer served for 10 years as for her hyperbolic descriptions, from OCU. Mr. Blumer worked for the municipal judge of Wewoka and kindness, generosity and fun-loving Sheehan Pipeline Construction Co. as president of the Seminole County personality. Memorial contribu- and then Manhattan Construction Bar Association. He was actively tions may be made to TU, 800 Co. in Tulsa where he worked involved in the OBA serving on South Tucker Drive, Tulsa, 74104. until his death. He enjoyed taking many committees and sections his Anatolian shepherd fishing, including the Real Property Section, ichael W. Mitchel of going home to visit Pennsylvania, Title Examination Standards MWoodward died July 1. spoiling his nephew, discussing Committee, Legislative Monitoring He was born Oct. 12, 1948, in politics and all sports. Committee and many more. Perryton, Texas, and graduated from Perryton High School in onald Lee Cooper of Tulsa aul M. Kimball of Oklahoma 1966. He received his Bachelor of Ddied June 14. He was born PCity died June 15. He was born Science in 1970 from Northwestern Dec. 24, 1938, in Oklahoma City. Nov. 7, 1942, in Tulsa. He gradu- Oklahoma State University. In He graduated with his J.D. from ated from Central High School 1973, Mr. Mitchel received his the OCU School of Law in 1970. in 1961 and went on to attend J.D. from the OU College of Law Mr. Cooper was a veteran of the OU. He received his J.D. from and moved to Woodward where U.S. Army and served in Korea. the OCU School of Law in 1969. he began his law practice. He He will be remembered as a dedi- Mr. Kimball furthered his law was actively involved with the cated worker and man who loved career as a partner with Kimball, OBA having served as OBA vice his family and friends. Wilson and Walker and was a president and on the OBA Board member of the Mineral Lawyers of Governors. He had a love for aley Amy James of Oklahoma Society of Oklahoma. He was an public service, which allowed him HCity died Oct. 10, 2014. She avid outdoorsman and a loving to impact public education as he was born Jan. 9, 1965. She gradu- husband, father and grandfather. served on the Oklahoma State ated from Cassady High School Memorial contributions may be Board of Vocational and Technical and attended Stephens College made to the American Cancer Education, Oklahoma State Board in Columbia, Missouri. She later Society, Alzheimer’s Association of Education and the Board of attended the OCU School of Law or Wounded Warrior Project. Regents for the Regional University and graduated with her J.D. in System of Oklahoma. Memorial 1999. She had a passion for taking Contributions may be made to the care of the disenfranchised and Michael W. Mitchel Classic Bowl unfortunate and was recognized Foundation Scholarship.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 79 llen Annette Marie Phillips hristopher William Venters loria S. White of Edmond Eof Yukon died May 28, 2014. Cof Luther died June 7. He was Gdied May 24. She was born She was born Nov. 17, 1967, in born Dec. 26, 1949, in Puerto Rico. Aug. 1, 1952, in Oklahoma City. Kingman, Kansas. She was a He graduated from OU and then She graduated from NW Classen graduate of El Reno High School. Southern Methodist University High School in 1970, OCU in 1974 She received her J.D. from the Dedman School of Law in 1978. with a degree in biology and the OU College of Law in 1993. Ms. Upon graduating, he practiced OU College of Law in 1986. Ms. Phillips was the assistant attorney law first with Legal Aid Services White served as assistant general general for the Environmental and then with his father, Harley counsel for the OBA and later as a Protection Agency and was a E. Venters, for 20 years. He was staff attorney and ombudsmen for member of the St. George Greek working as a public defense attor- OU. She used her strong will and Orthodox Church. ney for Oklahoma County at the legal training to defend and assist time of his death. He was pas- anyone in need. She loved to gar- sionate about his family, his law den, play bridge and her family. practice and politics and dedicated Memorial contributions may be the majority of his life to helping made to Sister Rosemary’s Sewing animals and people. Hope Foundation.

HOW TO PLACE AN from you. Sections, committees, Submit news items to: ANNOUNCEMENT: and county bar associations The Oklahoma Bar Journal are encouraged to submit short Lacey Plaudis welcomes short articles or news stories about upcoming or recent Communications Dept. items about OBA members and activities. Honors bestowed by Oklahoma Bar Association upcoming meetings. If you are other publications (e.g., Super 405-416-7017 an OBA member and you’ve Lawyers, Best Lawyers, etc.) will not [email protected] moved, become a partner, be accepted as announcements. hired an associate, taken on a (Oklahoma based publications Articles for the October issue must be partner, received a promotion are the exception.) Information received by Sept. 4. or an award, or given a talk selected for publication is printed or speech with statewide or at no cost, subject to editing and national stature, we’d like to hear printed as space permits.

80 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Oklahoma Bar Journal Editorial Calendar

2018 ISSUES

SEPTEMBER NOVEMBER Bar Convention Torts Editor: Carol Manning Editor: Erin L. Means [email protected] OCTOBER Sports Law DECEMBER Editor: Shannon Prescott Ethics & Professional [email protected] Responsibility Editor: Leslie Taylor [email protected]

2019 ISSUES

JANUARY AUGUST Meet Your Bar Association Appellate Law Editor: Carol Manning Editor: Luke Adams [email protected] FEBRUARY Deadline: May 1, 2019 Estate Planning Editor: Amanda Grant SEPTEMBER [email protected] Bar Convention Deadline: Oct. 1, 2018 Editor: Carol Manning MARCH OCTOBER Criminal Law Indian Law Editor: Aaron Bundy Editor: Leslie Taylor [email protected] [email protected] Deadline: Oct. 1, 2018 Deadline: May 1, 2019 APRIL NOVEMBER Law Day Starting a Law Practice Editor: Carol Manning Editor: Patricia Flanagan Patriciaaflanaganlawoffice@ MAY cox.net Technology Deadline: Aug. 1, 2019 Editor: C. Scott Jones DECEMBER [email protected] Deadline: Jan. 1, 2019 Ethics & Professional Responsibility Editor: Melissa DeLacerda [email protected] Deadline: Aug. 1, 2019

If you would like to write an article on these topics, contact the editor.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 81 What’s Online

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82 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL Classified Ads

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THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 83 POSITIONS AVAILABLE POSITIONS AVAILABLE

PROGRESSIVE, OUTSIDE-THE-BOX THINKING SMALL EASTERN OKLAHOMA LAW FIRM, with BOUTIQUE DEFENSE LITIGATION FIRM seeks a multiple offices, is seeking associate to assist in nurse/paralegal with experience in medical malpractice general practice. Excellent opportunity for young and nursing home litigation support. Nursing degree lawyer to receive courtroom experience. Salary and practical nursing care experience a must. Please commensurate with experience. Please email resume send resume and salary requirements to edmison@ to [email protected]. berryfirm.com. THE FIRM OF DEWITT PARUOLO & MEEK IS THE LAW FIRM OF CHUBBUCK DUNCAN & ROBEY SEEKING AN ATTORNEY with a minimum of 1 years’ PC is seeking an experienced associate attorney with 1-3 experience in civil trial practice, insurance defense years of experience. We are seeking a motivated attorney litigation and insurance coverage. Please submit your to augment its fast-growing trial practice. Excellent resume, cover letter and a writing sample to Derrick benefits. Salary commensurate with experience. Please Morton, P.O. Box 138800, Oklahoma City, OK 73113 or send resume and writing sample to Chubbuck Duncan by email to [email protected]. & Robey, P.C., located at 100 North Broadway Avenue, Suite 2300, Oklahoma City, OK 73102. MCATEE & WOODS PC, AN AV RATED MIDTOWN OKC LITIGATION FIRM, seeks a lawyer with 3-5 years EXPERIENCED LITIGATION LEGAL ASSISTANT of experience, preferably in insurance defense work. (minimum 3 years’ experience) – downtown Oklahoma Transmit a resume and writing sample to 410 NW 13th City law firm seeks litigation legal assistant with Street, Oklahoma City, OK 73103. experience in civil litigation. Great working environment and excellent benefits. Salary commensurate with NORMAN BASED FIRM IS SEEKING SHARP, experience. Please send resume to Attn: Danita Jones, MOTIVATED ATTORNEYS for fast-paced transactional Chubbuck Duncan & Robey, P.C., located at 100 North work. Members of our growing firm enjoy a team Broadway Avenue, Suite 2300, Oklahoma City, OK 73102. atmosphere and an energetic environment. Attorneys will be part of a creative process in solving tax cases, LANDOWNERFIRM.COM IS LOOKING TO FILL TWO handle an assigned caseload and will be assisted by POSITIONS in the Tulsa office: 1) a paralegal or legal an experienced support staff. Our firm offers health assistant with strong computer skills, communication insurance benefits, paid vacation, paid personal days and skills and attention to detail and 2) an attorney position a 401K matching program. No tax experience necessary. – the ideal candidate will have excellent attention to Position location can be for any of our Norman, OKC or detail with an interest in writing, drafting pleadings, Tulsa offices. Submit resumes to [email protected]. written discovery and legal research. Compensation DOE. Please send resumes and any other applicable THE LAW FIRM OF COLLINS, ZORN & WAGNER PC info to [email protected]. Applications kept in IS CURRENTLY SEEKING AN ASSOCIATE attorney strict confidence. with a minimum of 5 years’ experience in litigation. The associate in this position will be responsible for HARTZOG CONGER CASON & NEVILLE, AN court appearances, depositions, performing discovery, OKLAHOMA CITY FIRM, SEEKS AN ATTORNEY interviews and trials in active cases filed in the with 5-10 years relevant experience to work in its Oklahoma Eastern, Northern, and Western federal corporate law practice area. Candidates must have district courts and Oklahoma courts statewide. Collins, a strong academic background, good research and Zorn and Wagner PC, is primarily a defense litigation writing skills and the ability to work in a fast-paced firm focusing on civil rights, employment, constitutional practice with frequent deadlines. The ideal candidate law and general insurance defense. Please send your would have significant experience in M&A, private resume, references and a cover letter including salary equity transactions and general corporate transactional requirements to Collins, Zorn and Wagner, P.C., work. Applications will be kept confidential. Send c/o Hiring Coordinator, 429 NE 50th, Second Floor, resume to Attn: Debbie Blackwell, HR Administrator, Oklahoma City, OK 73105. 201 Robert S. Kerr Ave., Suite 1600, Oklahoma City, OK 73102 or email to [email protected].

84 | AUGUST 2018 THE OKLAHOMA BAR JOURNAL POSITIONS AVAILABLE POSITIONS AVAILABLE

ATTORNEY POSITIONS. The Office of Legal Counsel OKLAHOMA STATE BUREAU OF INVESTIGATION to the OSU/A&M Board of Regents has openings for two VACANCY ANNOUNCEMENT POSTING # 2018-12-U entry level attorney positions, one of which will office in POSITION TITLE: ASSISTANT GENERAL COUNSEL. Stillwater and the other in Tulsa. The Stillwater position Salary: $50,000- 72,000 with state employment benefits. will serve as a higher education generalist, dealing with Final salary commensurate with experience and a variety of legal issues, including, but not limited to, qualifications Location: OSBI headquarters, Oklahoma student conduct, open records, regulatory compliance, City. The position primarily involves representation contracts, research agreements and intellectual property of the Oklahoma State Bureau of Investigation in licensing. This position will work closely with and expungement of criminal history arrest records monitor outside counsel handling intellectual property litigation and in Self Defense Act representation at the and immigration issues as well. The Tulsa position will district court and administrative level. Participate as a be dedicated to the OSU-Center for Health Sciences member of the legal unit staff to assist in addressing and will focus on regulatory compliance, contracts and agency wide issues such as goals, budgets, legislation, healthcare law issues impacting a research center and etc. In addition, provide legal assistance to the OSBI Osteopathic Medical School. The precise duties assigned chief legal counsel concerning OSBI litigation, draft and to both positions may vary from the above, based upon file court, legislative and administrative documents the experience and aptitude of the successful applicant. and research memoranda. Applicants should have Each position requires a bachelor’s degree and J.D./LL.B. between zero to five years’ experience in the practice degree from an accredited law school and membership of law and exhibit an interest and aptitude for criminal in good standing in the Oklahoma Bar Association. justice law. Applicants must be admitted to the Both positions also require superior oral and written Oklahoma Bar Association. This position is established communication skills, an ability to identify and resolve in the unclassified service. The selection process may complicated, sensitive problems creatively and with consist of one or more of the following: oral interviews, professional discretion and an ability to interact and performance examinations, written examinations and function effectively in an academic community. To evaluations of training and/or education. Applicants receive full consideration, resumes should be submitted meeting this criteria may apply by submitting a cover by Friday, Aug. 31, 2018. to: Attorney Search, Office letter, resume, salary requirements and writing sample of Legal Counsel, OSU/A&M Board of Regents, 5th to Oklahoma State Bureau of Investigation, DeAnna Floor - Student Union Building, Stillwater, OK 74078. Stillwell, HR Section, 6600 N. Harvey, Oklahoma City, Additionally, applicants should submit a cover letter OK 73116. Any qualified applicant with a disability advising whether the candidate is applying for the may request reasonable accommodation to complete Stillwater position, Tulsa position or both. The OSU/ the application/interview process. The specific nature A&M Board of Regents is an Affirmative Action/Equal of the accommodation requested and the reason for Opportunity/E-verify employer committed to diversity the request should be provided at the time of initial and all qualified applicants will receive consideration application. Successful applicants must be willing for employment and will not be discriminated against to submit to a drug screen, polygraph examination, based on age, race, color, religion, sex, sexual orientation, psychological evaluation (commissioned positions genetic information, gender identity, national origin, only) and a thorough background investigation. Certain disability, protected veteran status or other protected events automatically disqualify an applicant, such as, category. All OSU campuses are tobacco-free. felony conviction, admission of an undetected crime that, if known, would have been a felony charge, failure DOWNTOWN OKC FIRM SEEKS EXPERIENCED to pay federal or state income tax, positive confirmed FAMILY LAW PARALEGAL with minimum of 3 drug urine test and illegal use of a controlled substance years’ experience. College degree and paralegal within certain time frames. Equal opportunity employer. certification strongly preferred. Pay is commensurate with experience. Send resume to “Box FF,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

THE OKLAHOMA BAR JOURNAL AUGUST 2018 | 85 POSITIONS AVAILABLE

BARNUM & CLINTON, in Norman, is looking for an entry level associate attorney (0-3 years); and a paralegal or legal assistant. We are looking for individuals eager to learn and ready to hit the ground running in our busy litigation practice. Both positions require the ability to take direction, work well with others and have a professional demeanor, strong work ethic, self- motivated and excellent computer skills with MS Office programs/Adobe Acrobat. Send resume and references (law school transcript and writing sample for attorney position) to [email protected].

OBA PRACTICE MANAGEMENT ADVISOR – The Oklahoma Bar Association is hiring a full-time practice management advisor (PMA) to work with attorneys and law office staff on improving law office systems and to take an active role in developing resources that assist lawyers in private practice. Outstanding verbal and written communication skills, including strong public speaking and presentation skills, are required. Job duties include speaking at CLEs around the state either alone or as part of a panel and working directly with lawyers and their staff to create or improve their docketing, conflicts of interest, accounting, billing and other law office systems. This includes answering questions by phone or email. Experience with and aptitude for law office technology (software, the cloud, hardware, social media) and law office systems is preferred, as is previous experience working as a lawyer in private practice. The position reports to the OBA Management Assistance Program director. Submit resume and cover letter outlining qualifications electronically to [email protected] before Sept. 6, 2018, with PMA Search in the subject line.

THE OKLAHOMA OFFICE OF THE ATTORNEY GENERAL is currently seeking a deputy chief assistant attorney general for the Utility Regulation Unit in our Oklahoma City office. The successful candidate will advocate for utility customers in proceedings before the Oklahoma Corporation Commission, with some practice before state courts and federal administrative agencies. This position is also tasked with researching, analyzing and presenting complex financial and legal information. The Office of the Attorney General is an Equal Opportunity Employer and all employees are “at will.” A writing sample must accompany resume to be considered. Please send resume and writing sample to [email protected] and indicate which particular position you are applying for in the subject line of the email.

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A Win’s a Win By Chance L. Deaton

Y FIRST CONTESTED through the docket, and I rose and a disheveled tie that looked Mhearing as a lawyer was when he called my case, nervously like a clip-on. We discussed the representing a plaintiff on a forcible responding, “Present for the plain- case but couldn’t come to a solu- entry and detainer. I didn’t expect it tiff.” After I sat down, another man tion, so I walked back to the court- to be contested. It was on the small stood and announced his presence room to anxiously await my first claims docket, but fresh out of law on behalf of the defendant. My “trial” experience. school and wet behind the ears, I mind exploded. I was expecting While I waited for the judge was anxious about the hearing even an uncontested hearing. I wasn’t to enter the courtroom, my mind before I knew it would be contested. prepared to argue the case against raced. This other lawyer had to I had no idea what to expect. You another attorney. know more than me. He was know that saying “Fake it until you The judge instructed those older. He had to be more expe- make it”? I was hoping against hope involved in contested cases to go out rienced, more knowledgeable, that it would hold true and the fak- in the hall and discuss settlement more articulate, more competent. ing would turn into making quickly, options. I walked out to the hall About that time the judge walked in, and I no longer had time to worry about anything. The judge called us to the bench. I tensely presented my client’s case. I have no idea what I said. I was so nervous it was like an out-of-body experience. At any rate, I said something, and then it was the opposing attorney’s turn. As he began to speak, the judge cut him off, apparently noticing the man’s informal attire I had missed earlier. The judge said, “Wait a min- ute, are you a licensed attorney?” The man stammered and ultimately said, “No, but I’ve researched the Landlord Tenant Act, and I’m familiar with the laws.” The judge promptly dismissed the opposing “counsel” for the unauthorized practice of law, heard because the one thing I knew for and nervously approached the man the defendant’s futile arguments sure was I hadn’t yet “made it.” I understood to be the opposing and then awarded judgment to my In the courtroom, as I was on counsel. I was so keyed up at the client. Hey, a win’s a win, right? the verge of hyperventilating from time that I failed to note the odd simulating all the possible disas- fact that the guy was not wearing ters, the judge entered. He called a suit, just a rumpled white shirt Mr. Deaton practices in El Reno.

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