Solo and Small Firm Conference • Justice Commission Issues Final Report

Volume 84 u No. 8 u March 16, 2013

ALSO INSIDE • Solo and Small Firm Conference • Justice Commission Issues Final Report

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 505 Workers’ Compensation

Consider an OBA sponsored Workers’ Compensation Plan from Beale Professional Services. This plan offers:

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506 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Th e m e : pg. 551 Te c h n o l o g y Editor: Sandee Coogan Solo & Small Firm Conference and YLD Midyear contents Meeting March 16, 2013 • Vol. 84 • No. 8

Departments 508 From the President 557 Editorial Calendar 564 From the Executive Director 566 Ethics/Professional Responsibility 569 OBA Board of Governors Actions 573 Oklahoma Bar Foundation News 576 Young Lawyers Division 578 Calendar 580 For Your Information 585 Bench and Bar Briefs 586 In Memoriam 592 The Back Page

pg. 558 Features Justice Commission Report 511 Encryption, Privacy and the Dark Side of the Internet By Duane Croft 517 The Basics of the Lawyer’s iPad By Jim Calloway 523 E-Filing in Oklahoma By Brant M. Elmore Plus 529 Electronic Discovery 551 Solo & Small Firm Conference By Ronald Collett By Jim Calloway 535 Changing the Face of Law Office 558 Oklahoma Justice Commission Issues Marketing Final Report, Adjourns By Don G. Pope 560 Committee Continues Monitoring 543 E-Discovery under Rule 26 Legislation By Cody J. Cooper By Duchess Bartmess

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 507 FROM THE PRESIDENT

OBA Members Encouraged to Learn More About Human Trafficking By Jim Stuart

Most persons, if asked, would tell you they OBA DAY OF SERVICE believe slavery no longer exists in the United States. In a previous message I men- After all, slavery was made illegal 150 years ago when tioned that an OBA “day of ser- President Abraham Lincoln signed the Emancipation vice” was being planned, by Proclamation. Over the past 15 years, “human traffick- which OBA members in all 77 ing” has been a term used to describe activities that hold counties will be given the oppor- a person in compelled service, primarily through forced tunity to spend a day giving labor, sex trafficking and debt bondage. back to their communities. The Slavery of any kind is a horrible violation of human OBA day of service is scheduled rights and human dignity. Human trafficking is believed to take place on Sept. 20-21. Put to be one of the fastest growing and most profitable this important event on your cal- criminal enterprises. I first became aware of the serious- endar — and step forward to ness of this problem through help your county bar organize a ABA President Laurel Bellows project. and her initiative to highlight CLE ALASKAN and combat the effects of CRUISE human trafficking. Oklahoma is not Now is also the time Oklahoma is immune from such to sign up for our not immune illegal activities OBA/CLE Alaska from such ille- cruise, July 20-28. It gal activities due in part to its will be a “cool” event, due in part to location in the with breathtaking sce- its location in nery and an exciting the I-35 corri- I-35 corridor. and fun way to get dor. Through CLE for 2013. For the the efforts of best cabin selection an OBA task and the best price, put force and resources made available by down a deposit by March 22. For recently elected ABA Governor and more details you can call OBA Oklahoma City attorney Jimmy Good- Educational Programs Director man, I plan to highlight ways in which Susan Krug at 405-416-7028, OBA members can identify victims and 800-522-8065 or simply check out help combat the effects of human traf- the ad in this magazine. ficking. On May 9 the OBA will present Best regards from the Stuart President Stuart a CLE program on human trafficking. I practices in Shawnee. encourage you to attend. family. [email protected] 405-275-0700

508 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 OFFIC ERS & BOARD OF GOVERNORS James T. Stuart, President, Shawnee Renée DeMoss, President-Elect, Tulsa events Calendar Dietmar K. Caudle, Vice-President, Lawton Cathy M. Christensen, Immediate Past President, Oklahoma City MARCH 2013 Sandee Coogan, Norman 18 OBA Litigation Section meeting; 12 p.m.; Oklahoma Bar Center, Gerald C. Dennis, Antlers Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Robert S. Farris, Tulsa Robert D. Gifford II, Oklahoma City Renée DeMoss 918-595-4800 Kimberly Hays, Tulsa OBA Alternative Dispute Resolution Section meeting; 4 p.m.; Douglas L. Jackson, Enid Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; O. Chris Meyers II, Lawton D. Scott Pappas, Stillwater Contact Michael O’Neil 405-232-2020 Nancy S. Parrott, Oklahoma City 20 OBA Women In Law Committee meeting; 4 p.m.; Oklahoma Bar Bret A. Smith, Muskogee Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Richard D. Stevens, Norman Linda S. Thomas, Bartlesville Kim Hays 918-592-2800 Joseph M. Vorndran, Shawnee, Ruth Bader Ginsburg American Inn of Court; 5 p.m.; Oklahoma Bar Chairperson, OBA/Young Lawyers Division Center, Oklahoma City; Contact Donald Lynn Babb 405-235-1611 BAR Center Staff 25 OBA Law Day Contest Awards Ceremony; 2 p.m.; Oklahoma State John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Jim Calloway, Capitol, Oklahoma City; Contact Richard Vreeland 405-360-6631 Director of Management Assistance Program; 26 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Craig D. Combs, Director of Administration; Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Susan Damron Krug, Director of Educational Programs; Beverly Petry Lewis, Administrator David Swank 405-325-5254 MCLE Commission; Carol A. Manning, Director 27 Ruth Bader Ginsburg American Inn of Court masters meeting; of Communications; Travis Pickens, Ethics Counsel; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Robbin Watson, Director of Information Technology; Jane McConnell, Coordinator Law-related Education; Donald Lynn Babb 405-235-1611 Loraine Dillinder Farabow, Tommy Humphries, 28 OBA Work/Life Balance Committee meeting; 12 p.m.; Oklahoma Tina Izadi, Katherine Ogden, Assistant General Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Counsels; Tommy Butler, Tanner Condley, Sharon Orth, Dorothy Walos and Sara Schumacher 405-752-5565 Krystal Willis, Investigators 29 OBA Environmental Law Section meeting; 11 a.m.; Oklahoma Bar Manni Arzola, Amy Baker, Debbie Brink, Emily Center, Oklahoma City; Contact Jeri Fleming 405-334-6343 Buchanan, Susan Carey, Johnny Marie Floyd, Matt Gayle, Dieadra Goss, Brandon Haynie, APRIL2013 Suzi Hendrix, Misty Hill, Debra Jenkins, Durrel Lattimore, Heidi McComb, Renee Montgomery, 2 OBA Communications Committee meeting; 12 p.m.; Oklahoma Bar Wanda Reece-Murray, Larry Quinn, Lori Center, Oklahoma City and Tulsa County Bar Center; Contact Dick Pryor Rasmussen, Tracy Sanders, Mark Schneidewent, Jan Thompson, Laura Willis & Roberta Yarbrough 405-740-2944

EDITORIAL BOARD OBA Government and Administrative Law Practice Section Editor in Chief, John Morris Williams, News meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with & Layout Editor, Carol A. Manning, Editor, teleconference; Contact Tamar Scott 405-561-2635 Melissa DeLacerda, Stillwater, Associate Editors: 4 Dietmar K. Caudle, Lawton; Sandee Coogan, OBA Lawyers Helping Lawyers discussion group meeting; Norman; Emily Duensing, Tulsa; Pandee 7 p.m.; Office of Tom Cummings, 701 NW 13th St., Oklahoma City; Ramirez, Okmulgee; Mark Ramsey, RSVP to Kim Reber [email protected] Claremore; Judge Megan Simpson, Buffalo; Joseph M. Vorndran, Shawnee; Judge Allen J. For more events go to www.okbar.org/calendar Welch, Oklahoma City; January Windrix, Poteau NOTICE of change of address (which must be The Oklahoma Bar Association’s official website: www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082013 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association 405-416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free 800-522-8065 FAX 405-416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education 405-416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel 405-416-7055 July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, General Counsel 405-416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education 405-416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers 800-364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program 405-416-7008 tions are $55$60 per year except for law students registered with the Mandatory CLE 405-416-7009 Oklahoma Bar Association, who may subscribe for $25. Active mem- OBJ & Communications 405-416-7004 ber subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessar- Board of Bar Examiners 405-416-7075 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Oklahoma Bar Foundation 405-416-7070 Journal Board of Editors.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 509 510 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Technology

Encryption, Privacy and the Dark Side of the Internet By Duane Croft

he Internet is now a part of our daily lives. Almost everyone uses it, almost every day. Most people with smartphones Thave Internet access 24 hours a day. However, I am not certain if most people realize how less than secure anything they do on the Internet is. Unless a person takes specific actions to prevent it, almost anything you do on the Internet can be observed by other people.

For example, you decide you want to write an given an Internet address (IP address). Every email to your brother Bob. You write the email, place you go on the Web records your IP input his email address and click “send,” and it address. You’re on Facebook and see a link to goes straight to him. Except it doesn’t. It goes the latest song by Lady Gaga that someone from your computer to your mail server. Your illegally uploaded. You click on it and down- mail server reads Bob’s address and sends it to load the song to your MP3 player. Six months another server. This server reads the address and later, the music industry can do a search and sends it to another server. The email may bounce see what IP addresses downloaded the song between 10 or more servers before it reaches Bob. and then send you a little letter saying if you And each and every one of those servers may don’t pay them umpteen bucks, they will be keep a copy of that email. And anyone with access filing a lawsuit against you. On the Internet, to those servers can read your email. (If you want you have no privacy. to see some possible email routes, go to www. So the question becomes, is there any way to yougetsignal.com/tools/visual-tracert and run continue to use the net and have some level of some proxy traces to a given server. If you choose privacy? This is particularly important for law- mail.ou.edu, it will simulate some possible routes yers who are trying to communicate confiden- an email going to someone at the University of tially with their clients. And there is a solution, Oklahoma might take.) Recently there was a very or at least a partial solution: encryption. I am high-profile scandal involving ex-CIA Director going to talk about three different types of David Petraeus, where his extramarital affair was encryption ranging from the very easy to the uncovered when an investigation turned up somewhat more complicated. Encryption can emails between him and his mistress. He thought protect your email from being read by anyone his emails were private, that only he and his girl- but the intended recipient. Encryption can pre- friend could see them. He was wrong and it cost vent anyone from seeing where you browse on him his career and his marriage. the Web. And while this sounds like a good There are similar problems when you surf thing, I will also mention some surprisingly bad the Web. When you log on, your computer is things that have resulted from this.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 511 LEVEL ONE: AES — ‘ADVANCED LEVEL TWO: PGP – ‘PRETTY GOOD ENCRYPTION STANDARD’ PRIVACY’ AES is really simple encryption that is easy PGP is more complicated to use, but provides enough to use with most clients. It is a built-in much higher security. There’s also a variation capability for PDF files. It is very easy to of it called GPG, which is used primarily in encrypt a file this way and all you need is the Linux. Commercial and free versions are both password in order to decrypt the file. This available; the commercial versions give you makes it nearly perfect for sending secure some additional capabilities (such as encrypt- emails. It is not the most secure encryption ing all or part of your hard drive). It is a little available, but if you use the higher level settings harder to use because if you want to send a and pick a strong password, the security level PGP encrypted file to someone, they have to should be about the same as a typical banking have PGP (or GPG) also in order to open it. You transaction. However, if you use a lower level can download commercial versions of PGP setting and/or a simple password (e.g. “123456” from Symantec at www.pgp.com. or “password”), there are lots of programs PGP is a two-key system. After you install available that can crack this encryption. PGP, the first thing you have to do is generate How to use AES to encrypt a PDF file: Let’s your personal keys. You tell the program what say you’ve prepared a confidential document email address (or addresses) the keys are going and want to send it to your client via email. If to be linked to and what password or pass you’re using Windows, you’ll need programs phrase you will use. It will then generate two like MS Word and Acrobat. Open the docu- keys: a public key and a private key. You never ment in Word. Click on the Create PDF in the give out your private key or your pass phrase to Acrobat Ribbon — this creates a PDF version of anyone, but you can give out your public key to your document. Then open the PDF in Acrobat. the world. PGP will even (if you request) pub- Click on File, then Document Security. Select lish your public key to key servers on the Inter- Standard Security and choose a user password. net, so that people can search for you by name or Choose the highest encryption level available email address and download your public key. for your version of Acrobat — 128 bit or higher It’s also a good idea to keep a backup of your is preferred. 128-bit encryption is the minimum private key somewhere, because if you lose it level of encryption used by most banks for (via a computer crash for instance), you’ll never encrypting electronic transactions. This will be able to decrypt your PGP files again. produce an encrypted PDF file that you can After this, it is fairly simple to use. Say you safely email to a client. When the client, or any- want to send a private email to your brother one else, attempts to open the PDF file, a pop- Bob. Bob needs to have PGP and you need to up box will come up asking for the password. have a copy of Bob’s public key. Prepare a file If the correct password is entered, the PDF you want to send him. Then tell PGP to encrypt opens like normal. There are many other ways the file — if you’re using Symantec’s PGP, you to do this. I’m a big fan of Open Office. Using open their desktop and point and click on the Open Office, open your document, then select file name and choose the encrypt option. PGP File, Export as PDF, then select the Security tab will ask whom to encrypt it for and give you a on the PDF Options pop-up and enter your list of what public keys you have. Pick Bob’s password. This will also create an encrypted key and PGP will produce an encrypted file — PDF file, just like the above. it’s actually a text file and will look like garbage. Email the file to Bob. When he gets it, he The above process creates an encrypted file will ask PGP to decrypt it. PGP will ask for his that will stop most people from being able to password or pass phrase and then decrypt the read your confidential material. Can the encryp- file using Bob’s private key. tion be broken, say by people with super- computers? The National Security Agency, as There are some other options with PGP. recently as April 2012, denies being able to Some of the commercial programs, including break AES encryption.1 Symantec’s, can produce self-decrypting archives (SDAs). These are files that have the decryption program built into them, so all that is needed to open them is a password. If you mail an SDA to someone, they do not need to

512 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 have PGP on their machine to open the file. However, they do have to be running the same operating system as you — if you’re running For the truly paranoid, Windows and they’re running Mac, they won’t remailers can be nested: send an be able to open the file. encrypted email to ABC remailer Another very useful option available in both the commercial and non-commercial versions with instructions to send the of PGP is “signing” a file. You can sign an encrypted file or a non-encrypted file. What email on to XYZ remailer… signing a file does is add a bit of code to it, embedding information about the file and about your private key. Then anyone with your As an aside, if you want more email privacy public key (and remember, you can give your than simple encryption, you can combine PGP “public” key to the world) can have PGP verify encryption with remailers. A remailer is a site two things about the file: 1) that you (or somewhere you send an email and it re-mails it to one with access to your private key and your whomever you ask it to. For instance, you want password so it should only be you) actually to send an email to Bob again. You write your sent the file and 2) that the file has not been email and send it to ABC remailer. ABC opens changed since you sent it. So for instance, I can it, sees the instructions you included for them write up a confidential document, encrypt it to send it on to Bob and they do so. If ABC is a and sign it with PGP and email it to you. When Type I remailer (also called a “cypherpunk” you open it with PGP, you will get a message remailer), it can handle PGP. In this case, you from PGP about whether my signature is valid could encrypt your original email for ABC or not. If the signature is valid, you can have a before sending it to them. After they get it, they very high level of confidence that I actually would decrypt it, see the instructions for send- sent it and that no one has altered it since I sent ing on to Bob and then send the decrypted it. This is a much higher level of confidence email onward. As additional security, most than you would (or at least should) have that a Type I remailers include some random latency typed letter on paper with my written signa- period: after they get your original email, they ture on the bottom is genuine. hold onto it for some period, could be seconds, could be hours, before sending it on to Bob. There is one other big advantage of PGP This combats traffic analysis. Traffic analysis encryption: It can provide much higher secu- would be someone monitoring your ISP and rity. With AES encryption, we were talking 128- Bob’s ISP and seeing that every time you sent bit encryption. PGP will encrypt to more than an encrypted email to ABC, that Bob gets an 4000 bits of encryption. Every time you increase email from ABC seconds later. For the truly the encryption level by one bit, you increase the paranoid, remailers can be nested: send an effort needed to break the encryption by a factor encrypted email to ABC remailer with instruc- of 10. Going from 128-bit encryption to 4000-bit tions to send the email on to XYZ remailer with encryption is an astronomical increase in secu- instructions to send it next to PQR remailer rity. How good is this higher security? Well, in and so on, with each of the intermediate emails 2000, the FBI was investigating Nicodemo Scarfo, encrypted. The final email to Bob can also be who was charged with racketeering, illegal gam- encrypted. You can go to www.email.about. bling and loan sharking.2 Nicodemo regularly com/od/anonymousemail/qt/How-To-Find- encrypted his emails with PGP. The FBI could A-Remailer-To-Send-Your-Anonymous-Email. not break the encryption and had to resort to htm for more information about how to find trickery. They got a search warrant for his remailers and how to use them. house and during the search made a copy of his private key and installed a keystroke logger LEVEL THREE: TOR – THE ONION ROUTER on his computer in order to get his password. That was 12 years ago. Can the FBI break PGP PGP was the gold standard of privacy back encryption now? I don’t know. There have in the 1990s. Then the U.S. Navy made all this been numerous incidents reported in the press obsolete and invented onion routing (which since then that indicate the FBI still cannot they patented under U.S. patent 6266704). In break PGP encryption, but none are as well 2004, TOR was developed, which stands for documented as the Nicodemo Scarfo case. The (Second Generation) Onion Router, which

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 513 is an onion routing protocol which does not which connects you to the TOR network and use the Navy’s patent and is freely available to opens a special browser that TOR installed (it anyone with an Internet connection. is a specialized version of Firefox) which is configured to work with TOR. Your connection TOR is the highest level of encryption, it’s to the TOR network is encrypted — it appar- almost certain that neither the FBI nor anybody ently could be determined (see China above) else can break it. TOR allows you to surf the that you are on TOR, but no one can tell what Internet with (almost) total privacy. It does this you’re doing there. As long as you’re using the by using a network of thousands (or more — TOR browser, your privacy is protected. If you total number unknown) of routing sites. When want to send a truly private email, get yourself you connect to the TOR network, the data to a Web-based email account that is not identi- and from your computer is encrypted auto- fied as belonging to you, and use it via TOR to matically and goes to a TOR entry relay. From send emails to whomever you want. If the there it bounces to another TOR site, then to recipient is using TOR to read his or her emails, another, then another for some large random then nobody can monitor your communica- number of bounces, potentially all the way tion. If you are truly paranoid, you can PGP or around the globe, encrypted the entire time. AES encrypt the emails as well. Then the data leaves TOR and accesses the normal Internet. However, the normal data bits I call TOR “scary-level” encryption. It is true that allow you to be identified as the user have military-grade encryption — it was originally been scrambled. TOR gives you a false IP ad- developed by the U.S. Navy. It’s more than just dress and periodically changes it. encryption, it’s an Internet hidden inside the Internet, the so-called “Darknet.” TOR calls From 2004, when TOR was first developed, these the “hidden services.” TOR allows the use until 2005, TOR was supported by the Elec- of the .onion pseudo top-level domain. Websites tronic Freedom Foundation. Currently TOR is can get a pseudo domain name through TOR controlled by the TOR Project, a non-profit that (since it is not a real domain name) can only organization in the USA, which receives sup- be accessed through TOR. When you access one port from the U.S. State Department and the of these pseudo domain or hidden services via National Science Foundation. These people TOR, your data never leaves the TOR network support TOR because they recognize that there and is always encrypted — the whole way from are many good reasons why people need pri- your computer to the hidden service website vacy on the Internet. In 2011, the Free Software and back. As long as the encryption works, no Foundation gave TOR their Award for Projects one can tell that you visited a hidden website or of Social Benefit, stating “...Tor has enabled what you did there. roughly 36 million people around the world to experience freedom of access and expression Why am I almost certain the FBI cannot on the Internet while keeping them in control break TOR at this time? Well, besides the dis- of their privacy and anonymity. Its network sident movements in Iran and Egypt, guess has proved pivotal in dissident movements in who uses TOR? TOR is very popular with one both Iran and more recently Egypt.”3 particular class of people: criminals. If you get on TOR and look at the hidden services, many China, which doesn’t approve of Internet of them appear to be illegal. There are sites that privacy, attempts to block all TOR traffic. It is will sell you stolen credit card numbers or believed that China inspects all Internet pack- hacked PayPal accounts. There are sites that ets for TOR handshaking protocols and blocks will sell you illegal drugs. There are kiddie all packets containing these protocols. There porn sites. There are sites where you can hire a has been some success in recent months in hit man. If the FBI could identify who is run- sneaking TOR through the Great Firewall of ning these sites, I suspect they would be shut China (using a technique called Obfsproxy down. Back in 2011, the hacking network relays), but the current status of TOR in China Anonymous reportedly attempted to shut- is uncertain.4 down the kiddie porn sites on TOR. They man- TOR is actually very simple to use. Go to aged to get and publish the IP addresses of 190 www.torproject.org and download TOR for users, but the kiddie porn network is still very your computer. It’s available for Windows, much up and running.5 And Anonymous did Mac, Linux and Android. It’s free. Once you not break TOR’s encryption. Their hack install it, you start a program called Vidalia, involved tricking 190 kiddie porn users into

514 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 uploading a patch to their individual TOR pro- censoring) our emails. So we started using PGP grams that let Anonymous track them. to encrypt all our emails. This got an immediate reaction. The people running the censor There are probably lots of ways to access office complained to the local head of the engi- these hidden services. The only way I’m famil- neering company that one of their employees iar with is to get on TOR and access the “hid- was encrypting his email. The head of the engi- den wiki.” Just do a search for hidden wiki or neering company got angry — not at my you can go to http://kpvz7ki2v5agwt35.onion. friend, but at the censor. You see, he had been to/wiki/index.php/Main_Page. The content doing his banking and investing by email, as of this page changes from time to time, but if well as communicating with his wife and fam- you look on the right hand column, there are ily back in the states, and wasn’t really happy links that will take you to all kinds of scary about the idea that someone was reading his places. Just accessing some of these sites is pos- emails. He, and everyone else in the company, sibly illegal, so I do not recommend that you had been unaware that this had been going on. do so. But I think it is good to be aware of how My friend told me that in a couple of weeks, to access these sites, since some of your clients almost everyone in the company was using might be going there! PGP when they wrote home! As a little extra, let me tell you one very CONCLUSION simple technique you can use that might tell you if someone is reading your email. This Internet privacy is important. Lawyers happened to me several years ago. I had a should be aware of how little privacy there is friend working for an American engineering on the Internet if you are not using encryption. company that was building a power plant in At the very least, some type of encryption Egypt. He was on-site in Egypt and we regu- should be used when sending confidential larly corresponded by email. However, on information over the Internet. The downside of several occasions, emails that I sent him did really good encryption is that it allows people not appear to arrive and emails that he said he to do things on the Internet that are illegal. sent me never showed up in my inbox. I However, an argument can be made that this is became curious. I ran a number of trace routes necessary, as it also allows people to do things to his email server, similar to the ones I on the Internet that some governments con- described at the beginning of this article. The sider to be illegal but that other people con- path varied a lot, except it always went through sider to be free speech. an “extra” server right before it got to his mail server. I had no idea why that server was there. 1. www.schneier.com/blog/archives/2012/03/can_the_nsa_bre. html. I asked my friend about it and he said that all 2. www.wired.com/politics/law/news/2001/08/46329 – or just the company’s Internet was routed through a Google “Nicodemo Scarfo pgp.” 3. www.fsf.org/news/2010-free-software-awards-announced. government server that provided them with 4. www.technologyreview.com/view/427413/how-china-blocks- Internet access. We both were wondering if our the-tor-anonymitynetwork. 5. gawker.com/5855604/elaborate-anonymous-sting-snags-190- emails were being read and occasionally cen- kiddie-pornfans. sored. So I set a trap: I uploaded a garbage file to an Internet dropoff/pickup service — I don’t remember which one I used then but www.sendspace.com is available for this pur- About The Author pose now. Then I sent an email to my friend, Duane Croft practices family telling him I had uploaded the file for him to law in Norman. He earned a B.S. download and described it in terms that would degree in physics/math from the catch a would-be censor’s attention. A couple University of Pittsburgh in 1979. days later, I confirmed that my friend had He spent the next 20 years per- never received the email about my upload. forming safety analysis engineer- Then I went to whatever dropoff/pickup ser- ing and accident analysis/investi- vice I used and they told me the file had been gation at several nuclear power downloaded one time since I uploaded it. Since plants. He graduated from OU my email was the only way someone would College of Law, passing the U.S. know how to get to that file, we were pretty Patent Bar in 2004 and the Oklahoma Bar in 2005. certain that someone really was reading (and

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 515 516 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Technology

The Basics of the Lawyer’s iPad By Jim Calloway

he iPad has proven very popular with the legal profession. Some lawyers are quite proficient at using their iPads with Tnumerous apps installed and a proclivity to show off their latest app to anyone who will stand still and watch. Others mainly use the iPad for entertainment, browsing the Internet or responding to email. The editor of this legal technology-themed issue of the bar journal is Sandee Coogan. She asked me for a “beginner’s” article on how lawyers can use their iPad.

The iPad is the king of tablet devices, but not courtroom well. The iPad works very well in the only game in town. Droid tablets, like the these situations. And if a judge calls you up to Google Nexus, the Asus Transformer Pad and the bench to schedule a hearing, “instant on” is the Samsung Galaxy Note are greatly improved very important too. in features and gaining in popularity. Micro- WHICH IPAD? soft’s Surface tablet was launched late last year to decidedly mixed reviews, accompanied by a When purchasing an iPad, one looks at three flood of snappy TV commercials. I have had no variables. First is the type of iPad. The options time with the Surface and limited time with are iPad 2, iPad Mini and iPad with Retina dis- Droid tablets. The ability to use a full version of play. (The iPad 1 is no longer recommended.) Microsoft Word on the Surface is a plus. But, for Next is the size of storage on the iPad. The 16 GB most of us, the huge number of apps, particu- model will likely be fine if you only intend to larly lawyer-specific apps makes the iPad much use it for work and won’t be storing much in the more appealing for lawyers. For the Droid side way of music, photos and videos on the iPad. of the story, you can stop by the Droid Lawyer™ Others will opt for 32 GB or 64 GB. Finally you blog (www.thedroidlawyer.com). And, while have to decide whether to spend an additional the Surface could be the dominant force in $129 for a Wi-Fi plus cellular data model that mobile computing in a few years, it is certainly supports 3G and 4G LTE on AT&T, Sprint or not there with the first edition. Verizon. Some purchasers keep their options open by buying the cellular model, but not set- WHY AN IPAD? ting up the monthly paid data plan until they The iPad is elegantly designed and easy to are sure they will need it. use. The iPad has become popular because it is a Your budget will drive your final iPad pur- simple computer that turns on instantly and can chasing decision. One can purchase a 16 GB iPad be operated with your fingertips. While a laptop 2 Wi-Fi only for $399 and refurbished ones for computer can be effectively used at counsel’s even less. The top end model, the 64 GB iPad table during a trial, laptops do not work well for with Retina Display and Wi-Fi plus cellular data motion dockets or many other types of hearings costs $829 plus a monthly fee for the data plan. where a lot of lawyers are milling around in the

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 517 The iPad Mini is very popular, less expensive • Backup – make sure you routinely backup and convenient to carry. A full-size iPad might your devices, so you don’t lose sensitive infor- be a better choice for the first iPad, but that is a mation. You can backup the old-fashioned way personal decision. Veteran iPad users are begin- using iTunes, or backup wirelessly to an iCloud ning to report using the iPad Mini more fre- account, which will likely be the preferred quently than the originals. method. NOW WHAT DO I DO WITH MY IPAD? LEARNING ABOUT THE IPAD First you have to download and install iTunes Step-by-step instructions to do every little on a computer. Then you plug in your new thing with the iPad or apps would seriously iPad and follow the bloat this article and instructions to set it up. make it unreadable. You will want to set up Apple has lots of online your email and calendar help available at www. to synchronize with your apple.com/support, but primary email and calen- I rarely use that resource. dar. It always seems easier just to type whatever Then you want to pro- question I have into tect your iPad and your Google and locate an information. article on how to do IPAD SECURITY something written by a blogger or professional It is important to make reviewer. sure any i-Device is properly secured, especially if you intend to Several websites provide information for use it for client work. The smaller the device, lawyers who use iPads. These include Tom the easier it is to lose or have someone steal it, Mighell’s blog iPad 4 Lawyers (http://ipad4 so taking some basic precautions is important. lawyers.squarespace.com), Jeff Richardson’s iPhone JD (www.iphonejd.com), which includes • Adequate Passwords – go to Settings> many detailed reviews of apps and Brett Bur- General>Passcode Lock>Require Passcode ney’s Macs in Law (www.macsinlaw.com). and turn it on. We recommend turning off the option for Simple Passcode, and having a long- ABOUT ALL THOSE APPS er, more secure passcode. There are more than 1 million apps in Apple’s • Consider using a password storage pro- App Store and 200,000 alone for the iPad. I’ll gram to save your passwords. We recommend highlight some “must have” apps here. But both LastPass (www.lastpass.com) and 1Pass bear a few things in mind. Apps are relatively word (https://agilebits.com/onepassword) – inexpensive, but the time invested in learning both of them work on any browser as well as how to use them is not. There are often a dozen your iPad or iPhone. They securely store all of apps that accomplish the same things. Spend the passwords you use on websites, and will some time reviewing legal app blogs and con- also help generate long, secure, unbreakable sumer reviews. Ask trusted people about what passwords for you. they recommend. Your workplace may prefer one app over another. Consistency/uniformity • Auto-Lock – within Settings>General, at the office typically is a good thing. If your make sure you set your iPad to automatically co-workers or friends use an app, they can pro- lock after a certain period of time. Never set it vide you with a “support network” to better to Never. learn and use the app. • Make sure the Erase Data is set to ON, so If you want to see even more apps that are use- data from the device is erased after 10 failed ful for lawyers, check out Tom Mighell’s book passcode attempts iPad Apps in One Hour for Lawyers (www.okbar. • Download the Find My iPhone app (it org/s/5fce4 at the ABA Bookstore). works on the iPad, too) – it is an invaluable tool for both locating a lost or stolen iPad, as well as wiping it or locking it remotely once found.

518 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 DEALING WITH forms and allows you to fill-in DOCUMENTS ON PDF forms via text fields, check THE IPAD If you want to use boxes, radio buttons and other The most common initial an iPad for annotation, form elements. You can create a question is “how do I get docu- then you will probably PDF form on your computer ments on the iPad?” Although and transfer it over to your you can use iTunes to do this, want to purchase a iPad when you need to com- that is not normally your best plete the form away from the choice. Generally you will stylus. office. either email documents to If you want to draft and edit yourself or using a cloud-based documents, there are a handful file sharing or file synchroniza- of “office suites” for the iPad tion service like Dropbox or SpiderOak. (For that can perform the core features found in more on cloud computing, your attention is Microsoft Office on your computer. One of the directed to “Conquering Cloud Computing: top choices for legal professionals is Quick- Tips for Online File Storage” 83 Oklahoma Bar office Pro HD (iPhone/iPad) which allows Journal 2697, Dec. 8, 2012.) you to view and edit Microsoft Word (Quick- One of the nice things about iPhones and word), Excel (Quicksheet), and PowerPoint iPads is that you can open and read most email files (Quickpoint). ($19.99, www.okbar.org/s/ attachments with the built-in viewer. But the yhk6a). viewer tool, while handy, does not let you edit Another very popular app to work with the attachments or even save them to your Microsoft Office files is DocumentsToGo Pre- iPad. mium ($16.99, www.okbar.org/s/xt9z8). This There many great iPad apps to work with app has been around for a long time and is in documents. wide usage. Tom Mighell has worked extensively with both and gives the edge to Quick- Because PDF files are so ubiquitous for law- Office Pro, but either will serve you well. yers, an initial “must have” app for lawyers is Quickoffice does not handle footnotes while GoodReader, available for iPhone and iPad. DocumentsToGo does, if that is an important ($4.99, www.okbar.org/s/goodreader). It pro- consideration for you. vides excellent annotation tools for PDF files, including the ability to highlight text, insert If you are still using WordPerfect, you will text boxes, post “sticky notes” comments, com- not find a tool to edit those documents on the pose freehand drawings, lines, arrows, rectan- iPad. But the WordPerfect Viewer for the iPad gles, etc. These tools are extremely useful when ($5.99, Corel Corporation www.okbar.org/s/ you are reading a court opinion or law review ohzmj) will allow you to open, view and search article. GoodReader also has a robust file man- through WordPerfect documents. ager and has the ability to sync directly with NOTE TAKING your accounts from Dropbox, Box.net, Google Docs, and many other similar services. Goo- Note taking is another handy function that dReader also works with Microsoft Office files could let you use the iPad like you use a tradi- and other document formats. tional legal pad. If you want to use an iPad for annotation, Notability (99 cents, www.okbar.org/s/ then you will probably want to purchase a sty- d5u5h) is also a “must have” tool at a bargain lus. Annotation with a finger doesn’t really price. Very few note-taking apps perform all work all that well. Three popular styli are the three recording functions with handwriting, AdonitJotPro ($29.95), Kensington Virtuoso typing and audio recording. Just imagine how ($25 with included pen or $15 without pen) handy it is to be able to turn on the audio and Wacom Bamboo ($29.95). recording feature when you realize that you PDF Expert ($9.99, www.okbar.org/s/pdf are falling behind on your note taking during expert) is similar to GoodReader. But PDF an important meeting. Expert offers a few additional features that are Noteshelf ($4.99, www.okbar.org/s/j4n90) hard to find in other apps and that appeal to Noteshelf is a great way to take notes and keep legal professionals. PDF Expert supports PDF them organized. You can organize various

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 519 notebooks on subjects and projects as you tion is online at www.lexisnexis.com/en-us/ desire. The various notebooks are displayed on products/mobile.page. You can learn about the shelves when not in use like they are displayed WestlawNext iPad app at www.store.westlaw. in iBooks or other ebook apps. This gives you com/westlawnext/mobile-ipad/ipad-app/ the advantage of not only taking notes, but default.aspx. making certain you will know where they are when you need them. Fastcase, your Oklahoma Bar Association- supplied legal research tool also has an iPad BLUETOOTH KEYBOARDS app at www.fastcase.com/ipad. Here are the instructions for synchronizing your iPad Fast- While touch typing directly on the iPad is case account with the access you enjoy by com- fine for doing Internet searches or briefly puter, if you have not already done so: answering email, if you really want to edit and prepare documents on the iPad, you will want For users who login through their bar asso- a Bluetooth keyboard. Bluetooth is the wireless ciation, law school or law firm landing method that keyboards use to connect to the page, simply login to your account, scroll iPad since there is no place to plug them in. over to the Options menu and select Mobile You can use the standard Apple keyboard, but Sync. Once on the Mobile Sync page, you that combination doesn’t make a handy travel will be prompted to enter an email address. package. Most lawyers purchase a combina- This will be your username for logging in tion keyboard and iPad cover like the ZaggFo- using the mobile app (Tip: If you already lio, the Brookstone iPad Keyboard case or use Fastcase for the iPhone or Fastcase for Logitech Ultrathin Keyboard Cover. the iPad or Fastcase for Android and are If you want to learn what several experts have syncing your accounts, please use the email recommended for iPad Bluetooth keyboards, see address associated with your pre-existing “Revisiting the iPad Keyboard Problem,” www. app account.) When you’ve entered your attorneyatwork.com/revisiting-the-ipad-key email address, click Go. We will send an board-problem. I have embraced the Logitech email to this address to confirm that you Ultrathin Keyboard Cover. own it. The email will contain a link that you must click to complete the sync pro- DOCUMENT SCANNING cess. If you have already established a mobile app account, simply click the link in Like smartphones, the iPad also contains a the email, and your two accounts will auto- camera. While the iPad is a bit awkward to use matically link together. to take snapshots, we should not forget that with the right app, this can be a great tool to If you might like reading news from various scan documents. Several apps will convert pic- sources in a magazine-style format, you might tures to PDF files and resolution of the iPad is try the free Flipboard app, www.okbar.org/s/ such that you can take a picture of an 8.5” x 11” rga-d. It will also handle Twitter and Facebook. document for scanning. Lighting can be a prob- It is hard to describe how well this app works, lem when trying to take a picture of a full-sized so please just give it a try. document. There are many apps that a lawyer can use at On the inexpensive side you can get an app trial. But that is really an entirely new article. I like JotNot Scanner Pro (99 cents, www.okbar. hear rumors that trial apps might even be a org/s/d25g9) to do this, but if you are going to new book from Tom Mighell. But as I have do this often you may appreciate the expanded noted in the bar journal several times before, features of Scanner Pro by Readdle ($6.99, you really cannot go wrong by starting with www.okbar.org/s/kxk9w), especially for mul- apps like TrialPad and TranscriptPad from Lit tiple pages. Software, www.litsoftware.com. LEGAL RESEARCH If you want some training on iPad basics, Your legal research provider has an app for you can view Getting Started with iPad2 on legal research. our OBA MAP YouTube page, www.okbar. org/s/6w9uk, and Ten iPad Typing Tips at LexisNexis® has several apps including Lexis www.luigibenetton.com/2012/12/typing-on- Advance™ and CourtLink®. More informa- an-ipad/

520 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 If you want to learn about even more apps, here are the ones highlighted at ABA About The Author TECHSHOW 2012’s 60 Apps in 60 Minutes Jim Calloway is the director of presentation, www.okbar.org/s/b8tio. the OBA Management Assis- You can use an iPad in so many ways. In my tance Program and manages the article “Unexpected Uses of Tools and Unin- OBA Solo & Small Firm Con- tended Consequences,” 83 Oklahoma Bar Jour- ference. He served as the chair nal 2414, Nov. 3, 2012, I outlined how you can of the 2005 ABA TECHSHOW make great movies with the iPad. But I hope board. His Law Practice Tips this article gives you a great start on using blog and Digital Edge podcast your iPad. cover technology and management issues. He speaks frequently on law office Author’s note: This article is drawn in part from management, legal technology, ethics and business materials for CLE webinars that I have co-presented operations. with Tom Mighell. Mr. Mighell is senior consultant for Contoural Inc. and author of “iPad in One Hour for Lawyers” and “iPad Apps in One Hour for Lawyers,” both published by the American Bar Association. The word “we” is used in places to reflect our joint recommendation.

At the end of the day... If you answered no to any of these questions, Who’s Really Watching Your Firm’s 401(k)? contact the ABA Retirement Funds Program And, what is it costing you? by phone (866) 821-1510, on the web at www.abaretirement.com or by email [email protected] to learn how we keep a close watch over your 401(k).

Who’s Watching Your Firm’s 401(k)?

YES NO Does your firm’s 401(k) feature The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial no out-of-pocket fees? interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, Does your firm’s 401(k) include professional by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to investment fiduciary services? indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Oklahoma Bar Is your firm’s 401(k) subject to quarterly Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program.

reviews by an independent board of directors? C12-0201-010 (2/12)

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 521 522 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Technology

E-Filing in Oklahoma By Brant M. Elmore

oon a new tool will be available to Oklahoma legal practitioners. The Oklahoma Supreme Court is in the process of implement- Sing electronic filing (e-filing) and a unified case management system in the state courts. Collectively, this tool will be known as the Oklahoma Unified Case Management System (OUCMS).1

The task of implementing the OUCMS is On Demand Court Records system (ODCR) monumental. The process has been ongoing for operated by KellPro Inc., are both presently in several years. However, e-filing in the state operation within the state.4 These two systems courts is now imminent. The Administrative are not integrated and rely on aged technology. Office of the Courts has promulgated and the The OUCMS will replace both the OCIS and the Oklahoma Supreme Court has approved Rules ODCR networks. for E-filing in Selected Pilot Courts.2 The OUCMS will consolidate court data American Cadastre LLC (AMCAD) is devel- throughout the state. It is anticipated that all of oping the state’s e-filing system. AMCAD is the data from the OCIS and ODCR systems will customizing their electronic filing software to be integrated into the OUCMS. After the OUCMS Oklahoma’s legal system. Once the software is implemented in a county, the court clerk will passes formalized testing, it will be put into use maintain the court record in an electronic for- in selected pilot courts. The Administrative mat.5 Records and documents in each and every Office of the Courts will post on the Supreme court clerk’s office will be maintained in the Court’s website when each of the district and same electronic format and will be easily acces- appellate courts implement the system.3 The sible by the parties, attorneys, judges and the first pilot court will likely begin using the public. As the court record will be maintained in OUCMS in July. Over the next few years, e- an electronic format, the district courts will sub- filing will become commonplace in the state’s mit an electronic record (e-record) to the appel- courts. late courts.6 Once fully implemented, Oklahoma’s e-filing Oklahoma’s e-filing system will be unified. As system will provide registered users with the abil- opposed to the federal system, where a user is ity to e-file in any district court or appellate court required to register with each of the separate fed- within the state. At the same time, the OUCMS eral courts, maintain multiple user accounts and will permit viewing of cases and the documents attain knowledge of the multiple operating sys- therein through a public access portal. tems, Oklahoma’s e-filing system will operate throughout the state. An attorney licensed to The state will no longer be divided by two practice in Oklahoma will only need to register separate case management systems. The Okla- once with the Administrative Office of the Courts.7 homa Court Information System (OCIS) and the Through this one user account, the attorney will

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 523 be able to e-file in all of the district courts and having no paper in the office.17 For this reason, appellate courts in the state. The operating sys- attorneys, parties and judges will have the tem will be identical in each of the district courts. option of paper on demand. Paper will contin- The documents viewed on the public access por- ue to be a part of our lives but effective lawyers tal will be the same as the official court record. will find ways to make their law practice more efficient by using the OUCMS. Certain legal practitioners are accustomed to e-filing. The Oklahoma Attorney General’s Although in a digital format, the form of Office and other federal court practitioners documents will be relatively unchanged. were required years ago to become e-filers. E-documents, will to the extent practicable, be These practitioners will likely transition seam- formatted in accordance with the applicable lessly to the OUCMS. Those unaccustomed to court rules governing formatting of conven- e-filing should make every effort to adopt this tional paper documents.18 The sole exception is useful tool. The OUCMS will provide many that the first page of an e-filed document will advantages to state court practitioners. have a top margin of at least two inches to allow for the insertion of an electronic file A registered user will be able to e-file from stamp.19 All e-documents will be filed in a text- the convenience of their office to any of the based PDF format (i.e., the document will be district courts and appellate courts across the converted from a Word or WordPerfect docu- state. Although the rules as to when a document into a PDF file on the user’s computer).20 ment is deemed filed will remain unchanged, Because text-based PDF documents are text the system will generally be accessible 24 hours searchable, a user will be able to use optical per day, seven days per week.8 Registered character recognition (OCR) software to per- users will be able to circumnavigate long dis- form high-volume searches of documents and tances, weather conditions and traffic to easily records.21 This feature is particularly advanta- file documents. geous in cases involving numerous volumes of The OUCMS will permit electronic service transcripts, records or documents. (e-service) of documents that do not require personal service as a matter of law.9 The court clerk’s office may also e-serve notices, orders, opinions, decisions, correspondence and other documents.10 E-service will be accomplished by A registered user will be able emailing a copy of the electronic document (e-document) to the registered user’s designated to e-file from the convenience of case-specific email address as well as any desig- their office to any of the district nated secondary email address.11 In addition to the requirement of e-service, the OUCMS will courts and appellate courts across generate notices to registered users regarding docket activity in cases in which the user has the state. made an entry of appearance.12 State court legal practitioners will be able to effectively operate a “paperless office” or “dig- Generally, attachments and exhibits will also ital law practice” if they desire.13 Registered be filed in a text-searchable PDF format.22 users will be able to create an e-document on Where an attachment or document cannot be their computing device and file that document converted to a text-searchable PDF, then the with the court clerk without the need of creat- attachment or exhibit will be submitted in a ing a paper document. The court clerks within non-text searchable PDF format (e.g., scan the the state will maintain the court record in an attachment or exhibit with a scanner). Non-text electronic format.14 The shift to electronic filing images (i.e., photographs) may be submitted in and a unified case management system will a JPEG standard format.23 Special provisions permit parties to have immediate access to are made for attachments or exhibits which documents filed in a case.15 A “digital law prac- cannot be e-filed. In that circumstance, the filer tice” can improve efficiency and productivity will be required to append a notice of attach- both inside and outside the office.16 ment not electronically filed to the principal e-document and forward a copy of that notice Although a “paperless office” carries with it and the attachment under cover sheet to the the potential to use less paper, it does not mean

524 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 clerk and other parties within 24 hours of the ed as the document or paper will be viewable e-filing of the principal document.24 by the public.34 Parties will continue to pay filing fees and Certain case types (e.g., juvenile, adoption, costs as before implementation of e-filing. mental health, etc.) will remain confidential.35 However, the OUCMS will permit the payment The procedure for sealing documents will not of fees and costs to occur by credit card or be applicable to filings in these case types as other online method approved for use with the any and all filings in the case will not be avail- OUCMS.25 Where appropriate, parties will be able for public viewing.36 able to e-file a pauper’s affidavit requesting a waiver of costs or filing fees in the same man- It is likely that both the Oklahoma Supreme ner as prescribed by statute.26 No longer will Court and the Oklahoma Court of Criminal Appeals will amend or implement additional valuable time be spent standing in line to pay 37 fees or costs. rules governing e-filing. State court practitioners will want to be attentive to such enact- A registered user will be able to submit pro- ments in addition to familiarizing themselves posed orders to the district court. The filer will with the Rules for E-filing in Selected Pilot submit the proposed order in an editable format Courts. via the OUCMS e-filing system. The proposed order will not become part of the court record. As with any other tool, determine how e- Once the judge finalizes the order, the order will filing will best benefit your practice and make be converted to a non-editable PDF document a plan for its implementation into your office. and filed in the official court record.27 The OUCMS will be here for many years to come and you will want to make effective use The OUCMS may permit certain individuals of this tool in both operating your practice and and agencies associated with the courts to serving your clients. The frontier is wide and e-file. Bondsmen, jurors, process serves and open in e-Oklahoma. CASA workers may be permitted to e-file.28 Quick and easy access to these documents Author’s note: The views expressed herein are could benefit the parties and the court in cer- those of the author, and do not necessarily reflect tain actions. those of the Oklahoma Supreme Court, the Oklahoma Court of Criminal Appeals, the Because information placed on the Internet is Administrative Office of the Courts, the E-Courts accessible by people across the globe, certain Committee or Judge Gary L. Lumpkin. practices must be changed. Attorneys or parties that e-file have the same duty to review 1. Rule 2(a), Ok l a h o m a Ru l e s f or E-Filing in Se l e c t e d Pi l o t their documents for personal identifier infor- Co u r t s , 2012 OK 61 (Okla. 6/21/2012). 2. See id. Rule 1; Okla. Stat. tit. 20, §3004 (2011). mation as set forth in Rule 31 of the Rules for 3. See id. Rule 1(b). the District Courts of Oklahoma.29 Pleadings, 4. See websites located at www.oscn.net/applications/oscn/start. asp?viewType=DOCKETS (last visited March 4, 2013); www1.odcr. papers, exhibits or other documents should not com (last visited March 4, 2013). contain Social Security numbers, taxpayer 5. Rule 11(b), supra note 1. 6. See id. Rule 11(c),(d). identification numbers, financial account num- 7. Rule 9, supra note 1. bers or driver’s license numbers.30 However, 8. Rule 5 supra note 1. . this rule does not apply in felony cases, misde- 9. Rule 8(a) supra note 1. 10. See id. Rule 8(c). meanor cases, traffic ticket cases or any other 11. See id. Rules 2(e), 8(d), (e). cases where statutory law or rules and forms 12. See id. Rule 8(b). 13. Jim Calloway, “Opening a Law Practice: Equipping the Law promulgated by the Court of Criminal Appeals Office” 2012, Oklahoma Bar Journal, Vol. 83, No. 26, P. 2072 (Oct. 6, 2012). require the inclusion of the complete personal 14. Rule 11(b), supra note 1. 31 15. Adrienne N. Cash, “Welcome to the Future: The Paperless Law identifier number. Office and E-filing,” Oklahoma Bar Journal, Vol. 82, No. 29, P. 2421-22 (Nov. 6, 2010). Extra care will have to be taken in the filing 16. See id.; see also Calloway, supra note 9, at 2072-73. of sealed documents. Before a document can be 17. See id. 18. Rule 12(a), supra note 1. filed under seal, a registered user will be 19. Id. required to first obtain a court order authoriz- 20. See id. Rule 12(b)(1). ing such filing.32 A filer will not e-file the docu- 21. See Calloway, supra note 9, at 2074-75. 22. Rule 12(b)(2), supra note 1. ment while a request for an order sealing is 23. See id. Rule 12(b)(2). pending.33 If the document or paper sought to 24. See Id. Rule 12(b)(3),(4). 25. Rule 6(a), supra note 1. be sealed is attached to the motion or applica- 26. See id. Rule 6(b). tion, then the purpose of sealing will be defeat- 27. Rule 12(d), supra note 1.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 525 28. See id. Rules 14. 29. Rule 31, supra note 1. About The Author 30. Id. at Rule 31(c). 31. Id. at Rule 31(b). 32. Rule 16(a), supra note 1. Brant M. Elmore is a judicial 33. Id. assistant to Judge Gary L. Lump- 34. Id. 35. Id. kin of the Oklahoma Court of 36. Id. Criminal Appeals. A native Okla- 37. Rule 1(a), (c), supra, note 1. homan, he earned his J.D. from the OU College of Law in 1998. He formerly served as assistant district attorney for Garvin Coun- ty, assistant Oklahoma attorney general and as an appellate defender for the Oklahoma Indigent Defense System. He has been honored to work alongside the many talented and knowledgeable judges, attorneys and clerks on the E-Courts Committee for nearly two years.

The Oklahoma Bar Association is an event promoter for ABA TECHSHOW 2013®, which means our members can save by using the OBA EP code EP1320. Register selecting the Event Promoter Registration form. On that form, there is a space to reference the EP code. More information and online registration is available at www.techshow.com. Check out the full line-up of educational sessions. The standard registration for ABA TECHSHOW is $1,050, but our discount automatically decreases the price to $895.

526 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 “ SUMMER WOULD DO BACKFLIPS TO HELP A NEW KID FEEL

WELCOME.”

Summer, a Holland Hall eighth grader, is on a competitive power tumbling team. In talking with her teammates who attend larger schools, she’s come to value the closeness of her smaller school family.

“It’s hard to explain, but you just get to know people so well,” Summer says. “Older kids, younger kids, parents … it’s really one big community. When new people come, kids always come up and talk to them. It’s not awkward. It’s just automatic. We all just welcome them together and before you know it, they have tons of friends.”

It’s the same with teachers, Summer says. “It’s easy to have a good bond with them, joke around with them. My science teacher is my advisor, and she really cares about me. When I walk in, my locker is right by her room, and she always asks about my latest competition, or how practice went last night.” – Summer, Holland Hall Eighth Grader

Learn more about what makes Holland Hall so unique. Contact Olivia Martin, Director of Admission, at (918) 481-1111.

www.hollandhall.org

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 527 528 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Technology

Electronic Discovery By Ronald Collett

on’t let the term “e-discovery” intimidate. It’s essentially discovery adapted for the way people communicate and Ddo business today. Instead of typewritten letters, we now have word processor documents. Accounting ledgers have been replaced by spreadsheets and database files; computer hard drives have replaced filing cabinets and cardboard boxes.

If you work for a large company, chances are stored within their system (i.e., where docu- that your Information Technology (IT) departments, spreadsheets, databases, emails, text ment and litigation team have the e-discovery messages, .pdf files, etc. are stored). They should process streamlined. They use data maps to also immediately place a litigation hold on the show the location of relevant data and have data ESI to ensure that no changes or deletion of per- retention policies and software deployed over tinent data occurs. the company network to perform data collection WHAT REALLY HAPPENS with little or no interruption to business activities. If you are a small practice attorney and your Your client calls to tell you that they have client is an individual or small business, often, received formal notification of being sued you will be the first person to advise the client months after they first knew there could be a that they have a responsibility to preserve elec- problem. tronically stored information (ESI) and will WHAT TO DO FIRST guide them through the process. Stop spoliation. Meet with the client and get THE RULES them to stop using or destroying the ESI; warn In 2006, the Federal Rules of Civil Procedure them against a modern day rendition of the Oli- (FRCP), rules 16, 26, 33, 34 and 37 were amended ver North, Fawn Hall evidence destruction inci- (in a one-sentence summary) to indicate that ESI dent. Make sure the client’s teenager is not using is a discoverable record type and should be the company laptop for gaming and web surf- treated as any other type of record. The rules ing. In short, convey to the client that ESI must don’t address specific technologies, but they be immediately preserved and that failing to do make clear the obligation to quickly secure, hold so could evoke the wrath of the judge and result and produce all relevant data for litigation when in severe financial penalties. Discuss with the directed. client what ESI could be pertinent to the case and where that data is stored. Some clients may WHAT SHOULD HAPPEN have already prepared a data map that shows When your client has a reasonable expectation where information is stored on the company that they will be sued, their IT shop (or the network or offsite (i.e. cloud, internet, cell owner if they have no IT shop) should, as soon phones, thumb drives, backups, etc.). Clients as possible, produce a map of where data is with smaller operations may have data stored

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 529 on one or a few office computers that aren’t computer “recycle bins” and deleted files are even networked together. also discoverable. WHAT TO DO NEXT The FRCP rules allow for the requesting party to specify the format of data produced. In Take steps to preserve the relevant ESI. In 2013, as this is written, data is typically pro- your previous meeting with the client (and duced in .pdf, .tif (a graphics file format), their staff as necessary), you will have deter- native format or paper. Yes, paper. If opposing mined what the relevant ESI is in the case and counsel wants paper, likely, there is not much where it is kept. The ESI should be preserved relevant data, or they have lots of time and a with all of the original file dates and metadata stable of attorneys who can be involved in (data that accompanies a file that often shows paper document review. author, revision information and is not readily visible to the user). As with big corporations, When it has been determined what ESI will the client’s IT team may be knowledgeable in be provided and the format that it will be preserving data for use in litigation. If not, a delivered in, production can begin. Large firms vendor versed in the use of forensic data col- and corporations often have in-house litigation lection methods and tools is recommended. support teams to handle production. Smaller The ESI should be collected as a forensic image firms will typically direct the hiring of a ven- in the case of an individual hard drive, USB dor to complete this task. In either case, soft- drive, etc., or as a forensic copy in the case of ware tools are used to sort and cull the agreed ESI stored on the network or in cloud storage. upon data. If the production format is paper, When the preservation is complete, the rele- the data goes by way of a disk or the internet to vant ESI could be stored at a secure network a print shop and into boxes. In the native file location in the case of a larger client with a net- format, the data is copied to a disk or secure work or in most cases the ESI will be stored on internet storage. In the case of a .pdf or .tif pro- one or more computer hard drives. These drives will typically contain the ESI in a file format that is not “native” (the way we see them on the screen everyday i.e., .doc, .xls, The ESI should be preserved .html) but in a format that serves as a container and preserves the original metadata that with all of the original file accompanies many files and prevents changes dates and metadata (data to the files. As insurance against loss, additional copies of the preserved ESI can be made. that accompanies a file that The drives should be stored with care and treated as evidence with complete chain of cus- often shows author, revision tody documents that show the creation and information and is not readily handling of the ESI drives/storage. After preserving the ESI, stop! This may be all that needs visible to the user). to be done. The steps that follow can be expensive. At this point, the ESI has been preserved duction, the data will usually be numbered or and stored. Your client can go back to normal Bates stamped and placed on a disk or some usage of their computer systems, and you can other type of media. The native, .tif and .pdf get back to attorney work to determine what formats are computer searchable, which is happens next. important for efficient document review. PRODUCING THE RELEVANT DATA Don’t be intimidated by “e-Discovery.” It’s If there is no settlement, and the case pro- only discovery streamlined by technology. If ceeds, opposing counsels will meet to deter- you are familiar with letters, ledgers, file fold- mine what preserved ESI is relevant to the case ers and filing cabinets, you have conceptual and will be provided in the e-discovery request knowledge of e-discovery and ESI. This high- or order. This means hashing out which emails, level “50,000 foot view” is where you should text messages, documents, spreadsheets, start and where case decisions should be made. drawings, images and other data will be given The technical aspects of e-discovery are always to the opposing counsel and what data will changing. There will always be a new piece of remain protected. Remember that contents of computer hardware, software or technique that

530 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 changes the way things are done. If you are Again, you likely have all the background you tech savvy and have the time, you can keep up need to deal with e-discovery. Don’t get bogged with these changes. If not, you can ask for the down in the technology aspects. Let others deal assistance of knowledgeable staff (at larger with that constantly changing front; and remem- firms) or e-discovery vendors. ber, it’s just discovery made modern. So when tasked with e-discovery remember these important steps: • When it looks like a lawsuit is possible About The Author place a litigation hold on pertinent ESI; Ronald Collett is a partner at • Stop spoliation (destruction, alteration or eBastille LLC, a company special- use) of the pertinent ESI; izing in data preservation, recov- ery and computer forensics. He • Preserve the pertinent ESI using in-house has over 20 years of experience in IT staff or vendors; law enforcement and computer • Determine what ESI is relevant to the case; forensics investigations. • Use in-house staff or vendors to produce the relevant ESI in the required format.

Featuring an afternoon with Natalie Choate

Thurs., April 25 – Fri., April 26, 2013

CLE credits available for KS, MO, AR, IA, NE and OK attorneys. Two day attendance may meet full annual CLE requirements. Register now at www.kceps.org

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 531 532 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 533 534 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Technology

Changing the Face of Law Office Marketing By Don G. Pope o one disputes the impact technology has on our lives. Nowhere is this more evident than in the area of law Noffice marketing. Twenty years ago, when first starting my private practice, a marketing strategy primarily consisted of a budget for Yellow Pages, possibly radio or TV advertising (if you could afford it), networking, participation in civic organizations and writing articles for publication. The computer was a tool for production of documents, organizing files and keeping track of your calendar. The Internet was in its infancy and was just beginning to show promise as a tool for finding information. The kids of the day were learning how to type by being on four chat rooms at the same time. At a CLE that I attended many years ago, the speaker discussed the necessity of adapting to changing technology. He expounded on the history of how attorneys over the years had been required to change — from handwritten documents to typewritten, from carbon paper to copy machine, from typewriter to memory writer and later to word processors. He said something that has always stuck with me: “Those who failed to adapt would succumb to the Grim Reaper of progress and be swept aside by those who did.”

So the question arises: How are you adapting the use of social media. Discussed below are tips the marketing of your practice to the new oppor- and ideas for how to begin, expand and improve tunities offered by today’s technology? your online presence in each of these areas. When establishing online marketing, the first WEBSITES thing to consider is setting up a website. Prop- As mentioned above, in past days, Yellow erly designed and optimized, a website is invalu- Pages was the vehicle of choice for attorney able in getting your name before the public. In advertising. When first setting up my private addition to establishing your website, the new practice in 1992, it was disheartening to see, in the trend is to broaden your online presence with Norman phone book alone, there were 34 pages of

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 535 advertising under the attorneys section of the probably the most important variables when it Yellow Pages. In 2011, that was down to seven. comes to ranking well on search engines. While that is not to say that Yellow Pages should Using words that prospective clients may use be disregarded, the marketing trend is clearly in searching for services, e.g. divorce, bank- moving to online advertising. A March 2012 sur- ruptcy, criminal law, etc., will improve your vey of 4,000 adult internet users conducted by ranking on a relevant search. Each page on The Research Intelligence Group (TRIG) showed your site is a searchable entity, so create unique that three out of four of those seeking attorneys names for each page. Use the most descriptive reported using online resources at some point in words first as search engines give more weight the process. to the first few words, e.g. criminal defense attorney, rather than attorney for criminal Websites are critical in establishing an online defense. How you change these title tags presence, however, there is much more to it depends on your website. If you have an than that. Studies have shown that it takes administrative console which allows you to about 200 milliseconds to make a good first make these changes, you can utilize that pro- impression on a website visitor. As such, your cess. Otherwise you will need to consult with website must be designed so that it will make your web designer. Keep in mind he is not an that favorable first impression in a very short attorney, so putting some thought and research time. When visitors look at your website, they into identifying useful title tags will aid him in are trying to determine 1) what can your firm improving your website. do for them, 2) whether you appear trustwor- thy and 3) whether they believe you can help Since search engines see quality incoming them. It is important that they can affirmatively links as lending credibility to your website, it is answer these questions. Website design is a important to cultivate those links. Although topic unto itself and beyond the realm of this there are many ways to get incoming links, paper; however, care and consideration should here are a few simple methods. Get listed in be taken when building your website. established directories. There are many “directories” you can sign up for. Lawyer directories Once your website is properly designed for such as bestlawyers.com, attorneypages.com, both appearance and functionality, you must lawyers.com or local-attorneys.com, as well as then take steps for it to be found. If you were generic directories such as manta.com, super concerned with your ad being buried in 34 pages.com, citysearch.com, etc. are available. pages of Yellow Pages advertising, imagine Some charge for these links, many are free. If your website being buried among thousands of you Google your company name you will other attorney websites. While specific search- likely see many that have already linked to es may be conducted for attorneys, such a your site. Update and verify those links to search may still generate hundreds or thou- improve the connectivity. sands of responses. If you are number 999 or even 99 on the list, it is not likely your website Provide quality link-worthy content. Create will be viewed. You should strive to have your quality content that is of interest to your pro- website on the first page of listings when spective clients. Since people are often more searched. To do this, you must raise the visibil- likely to link to a blog than a website, consider ity of your website in the eyes of the most creating and posting content to your blog popular search engines. This process is called which will then lead people to your website. Search Engine Optimization (SEO).1 Properly Updating your blog on a regular basis also done, this may improve your ranking when improves your visibility. Hubspot conducted searches are performed. While there are things an inbound marketing survey of 1,400 small- to you can do to help your website’s visibility, the medium-sized businesses and found that the factors utilized by search engines such as magic number for effective blog posts is 52.2 Google are constantly changing, and enlisting The report showed that companies that reached a professional can be very helpful. Whether 52 blog posts doubled the number of leads they you use a professional or do it yourself, below brought in every month. While this survey was are a few tips to aid your website’s visibility. not lawyer-specific, it is instructive. Start by improving your title tags. What is a Last, but not least, monitor your website. “title tag?” Titles are the words that appear in Once it is up and running, it is critical to see if the title bar of your browser window, not nec- it is working as you hope and expect it to. essarily on the webpage itself. These titles are While in-house monitoring of new clients to

536 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 see whether they have viewed LinkedIn process, first create a your website is worthwhile, you The most comprehensive profile. Be sure to should also set up an online load your profile with keywords monitor like Google Analytics.3 effective tool for which will enhance the link to This is a free service, and once your website. Next, check your set up, it will tell you how many your law practice contact list on Outlook or Gmail. visitors you have had, how is blogging. It has You can download an Outlook many of those visitors are first tool bar from LinkedIn which time visitors, how long they been reported that will review your emails and con- stayed on your site, how many tacts to select individuals and pages they viewed, where they 60 percent of small businesses to add to your con- are from and a bevy of other law firms generate tacts list. The more contacts the information. better. Look for power users new business from who have 500 or more contacts. SOCIAL MEDIA LinkedIn has a process which In addition to a website, social their blog. allows you to recommend per- media is increasingly being used sons in your contacts list for by law firms to market their practice. The four various skills. While you may request recom- primary social media outlets are Facebook, mendations, it is better to make recommenda- LinkedIn, Twitter and blogs. The use of social tions of others first. If they accept, then you media and blogs will improve the visibility of can send an email asking for a recommenda- your website. tion from them. The most effective tool for your law practice LinkedIn also has a number of interest groups is blogging. It has been reported that 60 percent to join, such as OU Alumni, OCU Law School of small law firms generate new business from Alumni, Consumer Bankruptcy Attorneys and their blog. To be effective you should blog Criminal Defense Attorneys. These groups can regularly, but it is not necessary to overdo it. be great sources for answering questions in Once a week is most effective. Use your blog to your area of practice as well as a valuable update, educate and stay in touch. Where pos- source for prospective new clients. You might sible, use images. Blogs with pictures are even consider forming your own group. Be clicked on more often than blogs with just text. active! Answer questions that may be posted You should commit to update regularly and (being careful to put a disclaimer that this does maintain conversations with those who com- not constitute legal advice). Update your status ment. Allowing comments is recommended, at least three times a week. Put a snip of your but you should regulate those to keep out blog on your status with a link to the full blog. negative material. Focus your content on the List all your events such as seminars, speaking areas of law you practice. Write about the chal- engagements, accomplishments, etc. lenges facing your clients and potential clients. An active presence in LinkedIn can be valu- Report on items of interest in the news and able in establishing your name and expertise to new court opinions. Searching Twitter and your contacts. Facebook can help you discover trends. Con- sider creating a top ten list of recurring legal Facebook issues. Allow people to subscribe by email to your blog. Position yourself as an expert in The King Kong of social media sites is your area. Doing so will potentially generate undoubtedly Facebook, which now has over calls from news media when that area becomes one billion users, with over 150 million in the an item of interest. While you may set up a United States alone. While Facebook is pri- blog within your website, there are also several marily geared to personal connections you can sites where you may create a free blog. Two of establish a separate company page. While you the more popular are www.wordpress.com may maintain both a personal and a business and www.blogger.com. page you should keep the two separate. You don’t want the distraction of having a link to LinkedIn interesting cases or wall posts to potential clients next to your party pics. Attention should LinkedIn is considered the business version be paid to the Rules of Professional Responsi- of Facebook and is a powerful tool to connect bility, Rule 7.1-7.4 regarding limitations as to with other professionals. To jumpstart the

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 537 direct contact with potential clients and restric- of sharing and receiving news, building relations on advertising as listed therein.4 tionships, and engaging people who you could never have dreamed of engaging. Twitter is While Facebook has vast potential to reach one of the fastest growing social networks on new clients, setting up your business page in the web. People use this network to communi- an attractive and professional manner may be cate and stay connected through the exchange tricky. Many businesses use LinkedIn instead. of 140 character messages, including links to In fact, a recent infographic by Siteimpulse5 other websites. The idea is to build relation- shows that 61 percent say that LinkedIn is their ships through conversation with the people go-to social media page. Even so, Facebook can you follow and those who follow you. The be used to good advantage. The prime term for term “follow” is used similarly to “friend” on connecting with others on Facebook is called Facebook. On Facebook, you try to enhance engagement. Many suggest that the engage- relationships with people you already know in ment of your fans, not the number thereof is the physical world. Twitter is more expansive key. There are many ways to boost your engage- in that it is used to communicate globally, irre- ment on Facebook. Join relevant Facebook spective of whether you already know those groups and contribute something of value to people. the community. Consider using the “Suggest to Friends” feature of your Facebook page. Law firms can use it to quickly share infor- Don’t be boring. Make your Facebook business mation with people interested in the firm’s page interesting so it stands out from the rest. business, gather real-time market intelligence Write about hot topics, such as Hollywood and also generate important feedback. It divorces, or criminal cases that have caught the enables law firms to build relationships with public’s attention. Ensure that all the informa- clients, business partners, and to develop their tion on your page is correct and up-to-date. brand recognition. This includes addresses, phone numbers, Web In addition, Twitter can be a very useful tool addresses, etc. Encourage discussion. Talk to in a lawyer’s business development practices. your readers to keep them coming back. Reply It is an excellent way to expand your network, to their questions in a timely manner, “like” build your reputation, comment on legal issues their comments, and start engaging discus- and trends, and establish relationships with sions. Ask your fans for feedback relating to members of the media, relevant market sectors your business. You might be surprised by all and other thought leaders. It is also an excel- the great advice you get. Come up with engag- lent tool for lawyers to research public opinion ing status updates that include prompts such on many different topics and understand devel- as “Click like or Share if…” This is a simple oping trends. While there are news broadcasts formula, and it’s all about whether people every day and updates on your computer agree with you. Choose something that you’re home page every few minutes, the immediate sure most of your fans will enjoy, and therefore buzz of new events with Twitter beats them all. “like” or share. Including images in these Using Twitter’s search function, you can imme- updates is a great way to increase engagement. diately discover what is being said and report- Ask open-ended questions that get your fans ed about breaking news as it is happening. In thinking. Consider creating status updates addition it is a great way for you to expose with links to your blog or perhaps just an item your practice and expertise online. of interest in the news. CONCLUSION A good example of a well-done Facebook fan page is that of Fenwick and West Law firm in In essence, there are a variety of tools for get- California.6 This page is engaging with regular ting your name before the public online, and a updates of activities involving the firm. It is successful approach involves a mixture of well worth studying. With forethought and avenues, not just one. The nice thing about it is, effort, you too can create a successful Facebook many of these are relatively simple and inex- presence. pensive, if not free, so you can experiment with little to lose to find the best combination for Twitter you. One fact is inescapable: the Grim Reaper Twitter is more of an information and engage- of Progress is still around for those who do not ment medium, as opposed to a marketing tool. adapt. Step out, take a chance, boldly go where Twitter may be looked at as a whole new way

538 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 no one has gone before. Most of all, experiment, have fun and learn what works for you. About The Author

1. If you would like to study the topic of SEO more extensively, Don Pope is managing attorney you can check out a free app available for your iPhone or iPad, called with Don G. Pope & Associates SEO Tips. This app has a series of videos that you can watch to learn in Norman. His practice focuses about SEO. 2. www.hubspot.com/lead-generation-tips. on family law, bankruptcy, wills, 3. www.googleanalytics.com. estates and probate. He is cur- 4. Oklahoma Statutes, Title 5, Appendix 3-A, Oklahoma Rules of Professional Conduct, Rules 7.1-7.4. rently the Cleveland County Bar 5. www.siteimpulse.com e-marketing consulting site. Association president and the 6. www.facebook.com/fenwick?ref=ts. chair of the OBA Law Office Management and Technology Section.

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E-Discovery Under Rule 26 By Cody J. Cooper

nder Rule 26(f) of the Federal Rules of Civil Procedure (FRCP), opposing parties must now discuss e-discovery at least 21 days before a scheduling conference is heard or a U 1 scheduling order is due under Rule 16. Rule 26(f) also applies to “all sorts of discoverable information, but can be particularly important with regard to electronically stored information.”2 This varies greatly from the current Oklahoma requirement under 3226(f), which states that “[a]t any time after commencement of an action, the court may direct the attorneys for the parties to appear for a conference on the subject of discovery.”3 While Okla- homa statutes state that a discovery conference is discretionary, it is mandatory under the federal rules. Additionally, both sides are required to discuss the form or forms in which discovery will take place, what information will be within the scope of the suit, issues about claims of privilege, and e-discovery.4

The advisory committee notes for the 2006 full understanding of their respective client’s amendment to FRCP 26 state, “[w]hen a case data when they go to the conference. involves discovery of electronically stored infor- As the advisory committee notes make clear, it mation, the issues to be addressed during the is each attorney’s job to become familiar with Rule 26(f) conference depend on the nature and their client’s information systems. Indeed, in the extent of the contemplated discovery and of the discovery conference, counsel is often required to parties’ information systems. It may be impor- exercise this working knowledge by discussing tant for the parties to discuss those systems, and what data is in each system and the respective accordingly important for counsel to become retention policy for that system. This means that familiar with those systems before the confer- counsel must become intimately familiar with a ence. With that information, the parties can client’s data creation and storage and be able to be develop a discovery plan that takes into account conversant in the same. This could require look- the capabilities of their computer systems. In ing at a map of each client’s database for his or her appropriate cases identification of, and early company or going through each application your discovery from, individuals with special knowl- client is using and discussing where the data is edge of a party’s computer systems may be stored for each application. helpful.”5 The practical implications of this note are clear. The committee expects both sides’ Furthermore, the volume and dynamic nature counsel to cooperate with each other and have a of electronically stored information may further

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 543 complicate preservation obligations. “The ordi- paper punch card, a floppy disk, a zip disk, a nary operation of computers involves both the hard drive, or in the ever-present cloud, people automatic creation and the automatic deletion have been storing computer-generated data. or overwriting of certain information. Failure Since its invention, the entrepreneurial race has to address preservation issues early in the liti- been creating larger and faster electronic stor- gation increases uncertainty and raises a risk of age in paradoxically smaller packages. Some disputes.”6 Again, this means that attorneys industry experts believe Moore’s law equally must be forthright in the information they pos- applies to the development of electronic stor- sess, and both sides need to cooperate in the age as it does to processors. Moore’s law, in an discovery conference or risk potential adverse over-simplified nutshell, is the idea that every actions (sanctions, etc.). The discussion between 18 months the number of transistors on an attorneys needs to be open and honest, and integrated circuit doubles. This is thought to be both sides need to focus on “the balance equally true of the amount of storage space between the competing needs to preserve rele- that can fit in an identical space, meaning more vant evidence and to continue routine opera- storage in a smaller area. With the exponential tions critical to ongoing activities.”7 increase in storage availability comes a number of hidden costs and dangers, particularly when Additionally, courts should be hesitant to pro- it comes to e-discovery.10 vide one side an overly burdensome or broad preservation order for fear that “[a] blanket pres- WHAT IS ESI? ervation order may be prohibitively expensive ESI is an acronym used to describe “Elec- and unduly burdensome for parties dependent tronically Stored Information.” ESI encom- on computer systems for their day-to-day passes all data that is stored electronically. I 8 operations.” In fact, the advisory committee for emphasize these words not for dramatic effect, the Federal Rules of Civil Procedure states that but to call your attention to the broad scope of “[a] preservation order entered over objections ESI. Say, for instance, you have a contract that should be narrowly tailored. Ex parte preserva- your client and another party have signed. tion orders should issue only in exceptional Clearly this physical paper copy isn’t ESI. But, if circumstances.”9 Ultimately, the parties need to you decide to scan that document and send it to take all of these considerations into account and yourself in an email, voilà, you’ve got ESI. Some try to reach a reasonable agreement. of the types of ESI most people are probably ESI AND E-DISCOVERY aware of are application data (Word documents, Excel sheets, PowerPoint projects), messaging Before delving into a brief overview of what systems (emails, instant messages, voice mail, I believe are some of the most important electronic calendaring) and databases. But ESI aspects of e-discovery, remember that parties also includes things that you might not be aware to litigation can always agree to produce dis- of. For example, your computer and most appli- covery in paper format, not electronic. How- cations generate data every time you perform ever, this doesn’t mean you can avoid elec- an action like clicking on specific data, making tronic discovery (e-discovery). As any attorney revisions to a document, searching for a spe- knows, discovery is a critical process of litiga- cific website, watching a YouTube video or lis- tion that is often tedious, time-consuming and tening to a song. These examples, however, are incredibly expensive. While traditional docu- far from an exhaustive list. Since attorneys are ment discovery requires combing through responsible for producing and requesting dis- thousands upon thousands of pages of paper covery, it is critical that any attorney dealing (many times much more), e-discovery could with e-discovery have a general knowledge of exponentially increase that amount to strato- the types of information that could potentially spheric numbers in the millions, tens of mil- be subject to discovery. lions, or even hundreds of millions. Breaking it down to its most rudimentary thought, e-dis- It is equally important that attorneys have a covery is simply the discovery of electronically working understanding of the types of elec- stored information. While seemingly simple, tronic information you might want to request the actual process of e-discovery, as well as the or you may need to produce because of the possible ramifications for failing to do so. Your potential adverse effects, is far from it. clients will rely on you to know what to For as long as computers have been around, request, and it is incumbent on each attorney to data has been stored. Whether in the form of a recognize the different types of data to ade-

544 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 quately draft and respond to important questions that are discovery. too technical to be discussed in The obligation their entirety within this arti- Now that we have a working cle, but this should provide a understanding of what ESI is, to preserve evidence brief overview. However, it is we need to look at one of the arises when a party important to recognize that most important things about ESI there are many more com- and that is how ESI is stored. has notice that the plex questions that will arise Other than knowing what ESI to throughout the ongoing pres- look for, the second most impor- evidence is relevant to ervation of data for purposes tant thing an attorney needs to litigation or when a of litigation. The first thing to know is where to look for ESI. think about when you are While ESI storage may seem party should have faced with the question of pre- common sense, it’s helpful, serving data for ongoing or nonetheless, to provide a re- known that the pending litigation is, when fresher (or introduction depend- evidence may be does your obligation to pre- ing on the reader) to the places serve begin? Typically your information can be stored. relevant to future obligation begins when you There are three primary ways litigation. reasonably anticipate the evi- ESI can be stored: online, near- dence will be relevant to future line, or offline.11 First, ESI can be litigation.12 If you are the re- stored online. This simply questing party, you can avoid means that information is stored at a readily a potential dispute as to when your opponent accessible location and requires no human should have anticipated the data being relevant intervention (think hard drive on your com- to litigation by drafting a litigation hold letter puter or a cloud accessible to anyone upon and sending it to your opponent. At its most immediate request). Near-line storage can be rudimentary level, this letter tells your oppo- summed up as direct access removable storage nent the locations and types of data you might (think flash drives, portable hard drives or request so that they are put on notice to not CDs/DVDs). Offline storage is most commonly destroy the information.13 Second, you should backup tapes. These are just magnetic tapes, determine what is your client’s data retention similar to cassette tapes, or for those of you policy? A retention policy is a set of official young enough to have no idea what a cassette guidelines or rules governing storage and tape is, just imagine a spool of plastic ribbon destruction of documents or ESI.14 In Arthur encased in a plastic casing that is capable of Anderson LLP v. United States, the United States storing information on it. Storage location can Supreme Court recognized there is nothing be incredibly important because, while pro- wrong with data retention policies that call for ducing data from readily accessible records destruction of documents so long as the destruc- like the hard drive from a computer or a USB tion does not occur at a time when a legal duty drive is relatively simple, the costs and diffi- to preserve that evidence has arisen.15 The bur- culty can potentially increase exponentially den to preserve is not unilateral to defendants, when backup tapes are involved. The difficulty “plaintiffs also have a duty to suspend regular can increase because of the amount of informa- destruction under records-retention policies tion that can be stored on backup tapes. Because once they plan to file suit.”16 Understanding the information is historical, those working your client’s data retention policy is important with it are likely unfamiliar with what is stored because it is the duty of each attorney to ensure on the tapes. This increase in costs can lead to that their client preserves all relevant data fights between the sides as to who should bear throughout litigation. the burden of producing the requested data. “The obligation to preserve evidence arises PRESERVATION OF DATA when a party has notice that the evidence is relevant to litigation or when a party should Aside from combing through the data you have known that the evidence may be relevant plan to produce or receive from the opposing to future litigation.”17 The duty to preserve evi- side, preserving the right data and eventually dence is one that is placed on counsel.18 In addi- producing it is likely the most onerous part of tion to implementing a “litigation hold” on the e-discovery. Preservation of data has many destruction of relevant information, counsel is

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 545 responsible for ensuring that a client actually to see those things. Producing documents with does implement such hold and continues to metadata also raises a number of issues. implement the hold throughout litigation.19 “To When a party receives a request for electron- do this, counsel must become fully familiar with ic data, the party and counsel “are under a the client’s document retention policies, as well duty to make a reasonable search for all rele- as the client’s data retention architecture.”20 This vant, non-privileged documents and ESI with- means that counsel is required to become inti- in the scope of the particular request (assuming mately familiar with her client’s data and proce- the request is well-framed).”22 Finding this data dures. After you have an understanding of what can present difficulty depending on the num- data your client has and their retention policy, it ber of records available. Keyword searches are is counsel’s responsibility to locate relevant data primarily how data is chosen, and they “work and ensure the client preserves that data. This best when the legal inquiry is focused on find- means you have to preserve data that could ing particular documents and when the use of potentially be subject to discovery, even if it is language is relatively predictable.”23 Fashion- not specifically requested.21 ing too broad of a keyword search will likely PRODUCING AND REVIEWING DATA result in a dispute between the parties as well as the potential to return significantly more Once data has been preserved, the big ques- documents than desired. Too narrow, and the tion then becomes how to review and eventu- potentially helpful documents could be left ally produce the data. Reviewing data for out. Too broad and a party could be buried in privilege presents a potentially massive under- information. The difference between a good taking for counsel, depending on the volume search and a bad search can be the difference of and sensitivity of the information being pro- finding (or disclosing) the smoking gun and duced. For particularly large cases, counsel will being lost in a forest of useless information. likely have to request large extensions in production deadlines and may even have to increase POTENTIAL ADVERSE EFFECTS the number of attorneys reviewing the data. Par- Under both FRCP 37 and 12 O.S. 3037, the ties have the ability to stipulate that any produc- court has broad discretion to punish parties for tion of privileged data to the other is deemed to failing to comply with discovery. Default judg- not be a waiver of any such privilege; but again, ment or dismissal, sanctions, and adverse infer- this topic is more detailed than this article ences are the primary concerns with failing to intends to cover. Under the FRCP (Rule 34), the cooperate with e-discovery. In one of the five requesting party can request a specific format, Zubulake cases, UBS failed to comply with pres- and the producing party can respond by com- ervation instructions and repeated orders by the plying or objecting. But if they object, they must court. The court then threatened them with an provide an alternative format. adverse inference at trial.24 The court followed The Oklahoma statutes, however, do not through with its threat and permitted the jury address production of data in specific formats, to make an adverse inference with respect to and the parties are left to decide and then ask emails deleted and irretrievably lost when the court to referee when they can’t agree. UBS’s backup tapes were recycled.25 In the end, Much of the data production argument will the Zubulake jury rendered a judgment against involve production in native or non-native for- UBS for more than $29 million.26 In Coleman mat. Native format means the format in which (Parent) Holdings, Inc. v. Morgan Stanley & Co. the information is naturally kept. Native for- Inc., a Florida court issued an adverse inference mat is important because it contains metadata, against Morgan Stanley for “overwriting which means that native format contains “hid- emails, failing to timely process hundreds of den” information such as, among other things, backup tapes, and failing to produce relevant who created the data, when the data was cre- emails and their attachments.”27 Morgan Stan- ated, and what application created the data. ley had judgment entered against it for $1.45 Metadata can best be understood as “data billion based largely on the instruction given, about data” that can’t be seen just by looking at but that judgment was subsequently success- an individual record. Think of it as looking in fully appealed.28 your iTunes music library at your favorite These two cases are a subset of cases imposing song: you can see the artist and album, but you harsh penalties on parties that purposefully fail can’t see what year it was created or the pro- to comply with courts and opposing counsel ducer of the music. Metadata would allow you

546 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 during e-discovery. Sometimes there is little an 10. Much of this paper is derived from secondary sources discussing e-discovery and its seminal cases. With that said, any attorney attorney can do to ensure a client complies with looking to educate themselves on e-discovery and digital evidence what is expected of them, but it is important that would be best served by obtaining a copy of West’s Nutshell Series for Electronic Discovery and Digital Evidence written by Shira A. Scheind- counsel communicate the potential weighty risks lin and Daniel J. Carpa. The commentary for the 2006 amendments to a client, and their counsel, could be faced with in the Federal Rules of Civil Procedure is also helpful when reviewing Rule 26(f). the event that they aren’t complicit. 11. Shira A. Scheindlin & Daniel J. Capra, Electronic Discov- ery and Digital Evidence 14-16 (West 2009). CONCLUSION 12. See Andrew R. Lee, Keep or Toss? Document Retention Policies in the Digital Era, 55 La. B.J. 240, 244 (2008). E-discovery is an ever-increasing and neces- 13. See generally Bradley C. Nahrstadt, What’s the Deal with Litigation sary part of litigation. Society’s increasing reli- Hold Letters? (With Forms): Hold on a minute: How do these things really work?, 18 No. 6 Prac. Litigator 23 (2007); Zubulake v. UBS Warburg LLC, ance upon computers for both personal and 220 F.R.D. 212 (S.D.N.Y. 2003); Zubulake v. UBS Warburg LLC, 229 F.R.D. business activities means that electronic data 422 (S.D.N.Y. 2004). 14. Id. at 33. will continue to increase every day. This pres- 15. See Arthur Anderson LLP v. United States, 544 U.S. 696, 704 (2005). ents a challenging problem for lawyers and 16. Scheindlin & Capra, supra note 11, at 35. 17. Id. at 36. their clients. While this mountain of data can 18. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431-32 (S.D.N.Y. be used both as a sword and as a shield, even 2004). the most experienced lawyer needs to tread the 19. See id. at 432. 20. Id. waters carefully. It is important to keep in 21. Lee, Supra Note 3, at 240. mind your ethical obligations to your clients, 22. Scheindlin & Capra, supra note 11, at 137. 23. Id. at 137-38. courts and opposing parties, and focus on a 24. See generally Zubulake, 229 F.R.D. 422. fair and reasonable resolution for all discovery 25. Id. at 437. 26. Nahrstadt, 18 No. 6 Prac. Litigator at 24. disputes. Depending on the nature of your 27. Id. at 25. case, often times it is cheaper to agree with 28. Id. opposing counsel to simply conduct discovery in paper form rather than incurring the excess expense of producing massive amounts of About The Author data; but regardless, you will likely be required to deal with esi and e-discovery in some form Cody J. Cooper is an attorney or fashion. Ultimately, this decision will have in the Litigation Department of to be something each attorney will decide Phillips Murrah P.C. His primary based on their belief of what is best for their practice areas are commercial liti- client. gation, class actions, complex torts and intellectual property. A Nor- 1. Fed. R. Civ. P. 26(f) (2012). man native, he graduated with 2. Fed. R. Civ. P. 26(f) (2006 committee notes). honors from OU College of Law 3. 12 O.S. 3236(f) (2012). 4. Fed. R. Civ. P. 26(f) (2006 committee notes). in 2012 and received his bache- 5. Id. lor’s degree in management information systems and 6. Id. 7. Id. finance. He served as the managing editor of the OU 8. Id. American Indian Law Review. 9. Id.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 547 2013 Oklahoma Forensic Academy Friday, March 29, 2013 Moore/Norman Technology Center, 13301 S. Pennsylvania Ave. Oklahoma City Sponsored by: The Criminal Law Section of the Oklahoma Bar Association Registration – Doughnuts & Coffee – Opening Remarks: 8:00 to 9:00a.m.

9:00 to 9:50 Checkpoints • Jeff Sifers, District Attorneys Council (DAC) & Oklahoma County Sheriffs Office

9:50 to 10:00 Break

10:00 to 10:50 Blood Draws & Search Warrants For Test Refusals • Richard Alpert, ADA, Fort Worth, TX 10:50 to 11:00 Break

11:00 to11:50 DUI Update • John Hunsucker, Esq., Oklahoma City, OK  Bruce Edge, Esq., Tulsa, OK 11:50 to 12:30 Lunch (Included with Seminar Registration Fee)

12:30 to 1:20 Emerging Trends in DNA Forensic Evidence • Janice Joslin, Technical Manager, Oklahoma Forensics Center, OSBI)

1:20 to 1:30 Break

1:30 to 2:20 Seizures of Cell Phone Text Messaging •Charles S. Rogers, Senior AAG, Oklahoma City, OK •Warren Gotcher, Esq., McAlester, OK

2:20 to 2:30 Break

2:30 to 3:20 DNA Evidentiary Foundations •Scott Rowland, First Assistant District Attorney, Office of Okla. County District Attorney

3:20 to 3:30 Break

3:30 to 4:20 Ineffective Assistance of Counsel & Prosecutorial Misconduct: What is the Bar to Do? (1 hour Ethics) •Gina Hendrix, Office of General Counsel, Oklahoma Bar Association The seminar has been pre-approved by the Oklahoma Bar Association for seven (7) hours of CLE Credit (including one (1) hour of ethics). ======Forensics Academy Registration – Make Checks payable to the Criminal Law Section of the OBA Mail/Email/Fax Registrations (if you fax your registration payment will be accepted at the seminar) to either: Mike Wilds, NSU, 3100 E. New Orleans, BALA, Broken Arrow, OK 74014, [email protected] fax: (918) 449-6571 or Trent Baggett, District Attorney’s Council, 421 NW 13th, Ste, 290, OKC, OK, 73102, [email protected], fax: (405) 264-5099.

Last Name (print) ______First Name ______

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Bar Number ______Tele # (___) ______E-mail______CRIMINAL LAW SECTION MEMBERS $80 ____ Nonmember $95 ____ Government Attorneys $70 (DA’s PD’s, OIDS Attorneys, etc…) ____ Judges (FREE, MUST PRE-REGISTER) ____ Payment to be made by Agency (OIDS, DAC, PD’s Office, etc…) ____/Agency ______Law Student/Student $25 _____/Law School/University Attending______Non-Attorneys $35.00 _____/Affiliation ______Late Registration $100 ____

REGISTRATIONS MUST BE RECEIVED BY 5:00 P.M. ON MONDAY, MARCH 25, 2013

548 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 CONNECT.

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Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 549 550 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 OBA EVENT

On the Road to Durant Again OBA Solo & Small Firm Conference 2013 and YLD Midyear Meeting By Jim Calloway

It is time to get on the road by a panel discussion in a again and meet up with some plenary session. This will friends for the 2013 OBA Solo help you with the latest in- and will be fresh back from & Small Firm Conference, set formation to help clients his first presentations at ABA for June 20-22. The Choctaw who come in with a proposed TECHSHOW®. Ms. Foster Casino Resort in Durant will oil, gas or wind power lease will give an important presen- again be our location. It in their hands. tation for today’s lawyer – should be another great event. Legal technology issues will “The Paperless Office Rede- Those who attended last year be addressed by our special fined.” She will also teach know it is a truly superb guest Debbie Foster, manag- “Practice Management: Tradi- venue. ing partner of Affinity Con- tional or Cloud?” There will be lots of fun and sulting’s Tampa Bay office We have a great lineup of serious topics to cover. One and a former chair of ABA substantive law updates for focus this year will be giving TECHSHOW®. She will be the solo and small firm law- solo and small firm lawyers joined by me and Oklahoma yer including “A Cornucopia more tools to protect their cli- lawyer Jeffrey Taylor for our of Criminal Law” with Assis- ents in case of their death or traditional opening “50 Hot tant U.S. Attorney Robert disability. This is not the most Tips in 50 Minutes.” Mr. Tay- Don Gifford, “Family Law pleasant topic to think about, lor has gained a lot of notice Update” with Tulsa lawyer but it is a critical part of a for his Droid Lawyer™ blog Kim Hays and “Liens, Liens, lawyer’s responsibility to the client. OBA Ethics Counsel Travis Pickens and Oklahoma City attorney Jim Slayton will handle this session. “Some Ethical Consider- ations for Advocacy” will be our legal ethics presentation from Oklahoma Supreme Court Vice Chief Justice John F. Reif. “The Wind Comes Sweep- ing through the Oil Patch: Energy Law and the Small Firm” will be a topic covered JUNE 20-22 • CHOCTAW CASINO RESORT • DURANT, OK

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 551 Liens: From Attorney’s Liens, YLD MIDYEAR MEETING to Materialman’s Liens” with The Young Lawyers Collin R. Walke. Division Midyear meeting There will also likely be a takes place in conjunction big audience for “A Simple with the conference and our DUI or Malpractice Waiting to YLD feature presentation is Happen?” with Bruce Edge of “An Everyday Approach to Tulsa and John Hunsucker of Solo/Small Firm Practice” by Oklahoma City. LeAnne McGill, Edmond; Kaleb Hennigh, Enid; Jennifer You may not have thought Castillo, Oklahoma City; and much about the UCC since Bryon J. Will, Oklahoma City. law school, but there are Conference many recent changes in this Many lawyers are seeing area, so you may want to sit increased use of mediation. in on “Secured Transactions “Leveling the Playing Field Sponsors for the General Practitioner” for the Solo and Small Firm with J. Mark Lovelace. Lawyer Through Mediation” will be presented by Gil Other topics like drug test- Steidley of McAlester and ing and marketing your law Co p r o d u c e r retired District Judge Rick practice will also be covered Branam of Coalgate. • Oklahoma Attorneys at the conference. Mutual Insurance Co.

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552 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 “How Long Has It Been? and evening events. There is a Hotel reservations can be Preparing for Trial” will be goodie bag with interesting made by calling 800-788-2464 the topic covered by Oklaho- gifts for attendees. There are and referring to the Oklaho- ma County District Judge lots of door prizes. ma Bar Association and/or Barbara Swinton. Block Code 1306OBAOKL. We hope to see you atthe Of course, we will have fun OBA Solo & Small Firm Con- Mr. Calloway is director of the activities for your small chil- ference. The early bird dead- OBA Management Assistance dren to keep them safe and line to register is June 6. Use Program. occupied as you attend class. the printed form or register Solo & Small Firm Conference online at www.okbar.org/ registration includes meals s/solo. Solo Kids Camp 2013

Make the OBA Solo & Small Firm Conference a family vacation! Kids will enjoy activities designed just for them while you attend conference programming. Friday, June 21 Friday will find us exploring the Choctaw Nation’s history and traditions. It will include an outdoor nature hunt, literature and crafts. We will have a movie and outside games as well. Saturday, June 22 Put on your camp shirt and walking shoes for a full-day fieldtrip of discovery inside the Chickasaw territory in Sulphur. First, we will tour the Bedrè Chocolate Factory. After our tour, we will then travel to the Chickasaw Cultural Center to explore the Chickasaw history and traditions with hands-on activities: dancing, singing, crafting, planting and weaving. Note: Adults are welcome to accompany us on Saturday’s field trip for an additional charge of $20. More details about Kids Camp will be provided following conference registration.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 553 OBA SOLO & SMALL FIRM CONFERENCE JUNE 20-22 2013 • CHOCTAW CASINO RESORT • DURANT, OK DAY 1 • Thursday June 20

6 - Welcome Dinner • Center Stage 8:30 p.m.

DAY 2 • Friday June 21

8:25 a.m. Welcome Jim Stuart, OBA President

8:30 – 50 Hot Tips in 50 Minutes 9:20 a.m. Jim Calloway, Debbie Foster & Jeffery Taylor 9:20 a.m. Break 9:30 – Planning Ahead: Protecting Your Client’s Interests in the Event of Your Disability or Death 10:20 a.m. Travis Pickens & Jim Slayton

10:20 a.m. Break 10:30 - The Paperless Office Redefined 11:45 a.m. Debbie Foster

11:45 a.m. - 12:45 p.m. LUNCH BUFFET (Included in Seminar Registration Fee)

12:45 - An Everyday Approach to A Cornucopia of Criminal Law How Is Your Practice Affected 1:45 p.m. Solo/Small Firm Practice Robert Don Gifford by Domestic Violence? Best (YLD Feature Presentation) Practice to Protect Your Clients LeAnne McGill, Kaleb Hennigh, and Yourself Jennifer Castillo & Bryon J. Will Gail Strickland & Susan Krug

1:45 p.m. Break 2 - Practice Management: Secured Transactions for the Drug Testing: 3 p.m. Traditional or Cloud? General Practitioner The Inside Story Debbie Foster J. Mark Lovelace Justin Humphrey

Approved for 12 hours MCLE / 1 Ethics

554 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 DAY 3 • Saturday June 22 8:25 a.m. Welcome John Morris Williams, OBA Executive Director 8:30 – The Wind Comes Sweeping through the Oil Patch: Energy Law and the Small Firm Lawyer 9:20 a.m. Jim Stuart, Daniel Sprouse & Shannon Ferrell 9:20 a.m. Break 9:30 – Some Ethical Considerations for Advocacy 10:20 a.m. Hon. John F. Reif – Vice Chief Justice, Oklahoma Supreme Court 10:20 - 10:45 a.m. Break (Hotel check out)

10:45 - Marketing Your Practice A Simple DUI or Malpractice 11:35 a.m. Debbie Foster Waiting to Happen? Bruce Edge & John Hunsucker

11:35 a.m. LUNCH (Included in Seminar Registration Fee)

12:30 – Are you a Droid or iOS Are you a Droid or iOS How Long Has It Been? 1:20 p.m. Lawyer? iPhones & iPads Lawyer? Droid Phones & Tablets Preparing for Trial Jim Calloway Jeffery Taylor Judge Barbara Swinton 1:20 p.m. Break 1:30 - Family Law Update Liens, Liens, Liens: From Leveling the Playing Field for 2:20 p.m. Kim Hays Attorney’s Liens to the Solo and Small Firm Materialman’s Liens Lawyer Through Mediation Collin R. Walke Gil Steidley & Rick Branam

2:20 p.m. Break 2:30 - What’s Hot & What’s Not in Running Your Law Practice 3:30 p.m. Jim Calloway, Debbie Foster & Jeffery Taylor

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 555 556 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

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

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 557 BAR NEWS

Oklahoma Justice Commission Issues Final Report, Adjourns

Full report available at www.okbar.org/s/finalreport

After a two-year review of the justice system in Oklahoma that included everything from DNA and false confessions to eyewitness identification and the use of informants, the Okla- homa Justice Commission (OJC) has released its final report and recommendations. The commission was established by the OBA in September 2010 to “enhance the reliability and accuracy” of convictions in Oklahoma. Led by former Oklahoma Attorney General Drew Edmondson, the group included law enforcement officers, defense attorneys, prose- cutors, members of the judiciary and victim advocates. “For two years, this diverse group of indi- Oklahoma Justice Commission Chair Drew viduals dedicated themselves to the study and Edmondson speaks during a press conference in betterment of our justice system,” Mr. Edmond- March announcing the commission’s findings. son said. “I am proud of their service, and if enacted, I believe the recommendations issued where a common factor existed and practical will ensure that justice is more efficiently and ways to prevent future error.” accurately rendered.” The commission’s final report includes the According to the report, members of the recommendation that future confessions be commission first reviewed cases where wrong- videotaped as the technology and circumstanc- ful convictions occurred. Based on that initial es allow. study, the commission identified five broad areas of inquiry for further review including “This practice protects law enforcement by false confessions; eyewitness identifications; preventing allegations of coercion and preserv- forensic evidence, including DNA; general ing the subtle details of a suspect’s behavior for criminal procedure, including the use of infor- investigative and prosecutorial purposes,” mants; and victim and family rights. Edmondson said. “The commission recognizes this practice may not always be feasible, but “We were surprised to find that 27 percent of we believe it should be standard practice when the 301 wrongful convictions we studied possible.” involved false confessions that were made by suspects during investigation of the crimes,” The commission also recommended new Mr. Edmondson said. “Those were the kinds of procedures for police line-ups and photo iden- things we’ve attempted to redress — instances tification. The report expresses support for the Office of the Chief Medical Examiner in its

558 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 efforts to regain national accreditation, obtain as possible to ensure that we are not sending new facilities and secure additional patholo- an innocent person to prison,” Rep. Denney gists in order to reach that standard. said. “Currently, Oklahoma is the only state in the union that does not have a post-conviction “The commission reviewed instances where DNA testing process in place. This legislation DNA evidence proved faulty and found that of creates that process, and it enhances the credi- the cases studied, only one instance occurred bility of our justice system.” in an accredited laboratory,” Mr. Edmondson said. “This clear correlation underscores the “The members of the commission recognize importance of the work done by the medical that the incarceration of an innocent person is examiner’s office, and it is in the public’s inter- an injustice, not only to the wrongfully con- est that they be given the resources and facili- victed, but to society as a whole as the real ties they need to conduct their work.” perpetrator remains at large,” Mr. Edmondson said. “The recommendations made in this The commission also noted that Oklahoma is report were based on thoughtful research and currently the only state in the U.S. that does not discussion. I am grateful to my fellow commit- have a post-conviction DNA testing law and tee members and their undertaking of such a proposed legislation to allow access to DNA in serious task, and I appreciate the Oklahoma cases where additional testing could establish Bar Association’s work in facilitating the study innocence. of these issues.” Legislation to remedy that fact has been pro- The commission dedicated the report and its posed this year by State Rep. Lee Denney, recommendations to the late Professor J. Wil- R-Cushing, who is also a member of the justice liam Conger, a commission member who died commission. Jan. 1. The report is available at www.okbar. “When a person’s life and liberty are at stake, org/s/report. we have a duty to be as thorough and exacting Oklahoma Justice Commission Membership

Chair Drew Edmondson, Oklahoma City Dwight Adams, forensic specialist, Edmond Judge Thomas Alford, Muskogee Secretary Carrie Bullard, Oklahoma City 2012 OBA President Cathy Christensen, Oklahoma City Assistant Oklahoma Attorney Jennifer Miller, Police Chief Bill Citty, Oklahoma City Oklahoma City John Claro, legal scholar, Oklahoma County District Attorney David Prater Oklahoma City Bob Ravitz, public defender, Oklahoma City Lee Cohlmia, District Attorneys Council, Oklahoma City Judge Clancy Smith, Oklahoma Court of Criminal The late J. William Conger, OCU School of Law Appeals, Oklahoma City Rep. Lee Denney, Cushing Custer County District Attorney Dennis Smith, Arapaho Tim Dorsey, police, Edmond Joshua Snavely, member of the public, Edmond Andrea Hamor Edmondson, victims’ advocate, Jackie Steyn, victims’ advocate, Oklahoma City Oklahoma City Retired Judge Reta Strubhar, Oklahoma Court of Steve Emmons, CLEET representative, Ada Criminal Appeals, Yukon Chad Farmer, police, Muskogee Andrea Swiech, OSBI, Oklahoma City OSBI Director Stan Florence, Oklahoma City Rogers County Sheriff Scott Walton, Claremore Dean Emeritus Lawrence Hellman, OCU School of Law Oklahoma County Sheriff John Whetsel Sen. Constance N. Johnson, Oklahoma City Vonda Wilkins, defense attorney, Guymon Mack Martin, defense attorney, Oklahoma City Sue Wycoff, former defense attorney, Norman Stewart Meyers, member of the public, Oklahoma City John Yoeckel, member of the public, Oklahoma City

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 559 LEGISLATIVE NEWS Committee Continues Monitoring Legislation By Duchess Bartmess

The 2013 Oklahoma Legislative HB 1373 — creating the Alimony Session is in full swing. The dead- Guidelines Task Force line for measures to be reported HB 1384 — creating the Parents’ out of committee for action on the Bill of Rights floor of the house of origin — and the deadline for measures being HB 1789 — requiring payment of reported out of the house of origin full foster care rate and other — have both passed. benefits for kinship foster care As a result, a number of the bills HB 2099 — creating the Children and joint resolutions that were with Disabilities Comprehensive designated to be reviewed and Systems of Service tracked by the Legislative Moni- HB 2130 — clarifying juvenile toring Committee through the leg- detention requirements and case islative process are no longer con- transfer procedure sidered on active status. However, HJR 1023 — clarifying juvenile there still are plenty of active mea- detention requirements and case sures left that the committee’s sub- transfer procedure committees will continue to watch and review. SB 200 — creating the Comp- Source Mutual Insurance Com- The following is the list of the pany Act LMC subcommittees with most of the legislative measures on general SB 521 — directing DHS to devel- order in the house of origin at the op and implement workforce time this report was prepared. All measures that improvement program are passed by the full house of origin are still SB 671 — expanding definition of persons subject to amendment as they pass through the responsible for a child’s health and safety opposite house. SB 679 — modifying provisions of Children and CHILDREN AND FAMILY LAW Juvenile Code SUBCOMMITTEE SB 1040 — clarifying certain jurisdiction regard- HB 1033 — permitting inspection of certain ing child support orders court records by attorney representing parent CIVIL LAW AND PROCEDURE HB 1118 — creating the Oklahoma Truth in SUBCOMMITTEE Adoption Act HB 1374 — providing for notice by publication HB 1228 — requiring state commissioner of when certain person cannot be located health to publish certain data SB 484 — jury duty; increasing certain time HB 1259 — Demarion’s Law; requiring insur- period ance or self-insurance coverage of child care SB 951 — declaring certain rulings and contracts facilities void and unenforceable

560 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 COMMERCIAL LAW, BUSINESS HJR1032 — manufacturing facilities ad valorem ENTITIES, CONTRACTS AND exemption INSURANCE SUBCOMMITTEE HJR1033 — State Capitol bonds HB 1672 — creating the Continuity of Care Act HJR1034 — modifying provisions related to cer- of 2013 tain activity of legislators HB 1767 — title insurance or certificate of title; HJR1041 — authorizing the sale of certain beer, countersign modification wine and spirit accessories HB 1792 — creating the Oklahoma Temporary Motorist Liability Plan SJR10 — placing limit on total state indebted- ness HB 1995 — amending various provisions of the Oklahoma General Corporation Act SJR16 — modifying provision related to personal property tax exemption HB 2057 — debit cards; disclosure of fees and interest; information reporting; disclosure SJR17 — renaming ABLE Commission as Okla- homa Commission on Alcohol and Drug HB 2208 — allowing insurance proceeds bene- Enforcement fits to be assignable; release of proceeds SJR21 — modifying appointment procedure; SB 173 — firearms, making certain decisions requiring Senate confirmation about carrying certain weapons immune SJR22 — modifying certain appointment proce- SB 582 — service liens on personal property; dure for chief justice modifying certain notice and procedural requirements SJR24 — limiting term of service for certain justices and judges SB 594 — Oklahoma General Corporation Act; modifying requirements for division into cer- SJR33 — providing that certain provision not be tain classes construed to prohibit certain military personnel SB 991 — prohibiting stacking of certain insur- COURTS, JUDICIARY AND ATTORNEYS ance policies SUBCOMMITTEE SB 1043 — providing certain protections to HB 1242 — authorizing district court judges to members and managers of limited liability carry firearms comp HB 1644 — relating to legal representation of SB 1058 — authorizing debtor or creditor to ini- the executive branch tiate refund or credit SB 484 — increasing certain time period regard- Note: As of March 10, Gov. Fallin has signed ing jury duty one bill, HB 1646, which amends Section 1027 of Title 18 of the Oklahoma Statutes, by deleting SB1041 — prohibiting sealing of records with- paragraphs 2, 3 and 4 of subsection D regarding out specified authority classes of voting stock in domestic corporations. SJR 22 — modifying certain appointment proce- CONSTITUTIONAL LAW dure for chief justice SUBCOMMITTEE SJR 24 — limiting term of service for certain HJR1006 — guaranteeing the right to engage in justices and judges certain farming and ranching practices CRIMINAL LAW AND PROCEDURE HJR1007 — modifying provisions to certain SUBCOMMITTEE activity for legislators with exceptions HB 1088 — repealing Sections 901, 902 and 903 HJR1011 — expenditure limitations of Title 21 — blasphemy HJR1023 — re-establishing the Oklahoma Juve- HB 1243 — updating description of handgun nile Justice Reform Committee license HJR1024 — modifying date for organizational HB 1250 — authorizing courts to order use of day of the Legislature Global Positioning System (GPS) monitoring HJR1026 — clarifying manner in which citizens HB 1277 — modifying mandatory and tempo- may keep and bear arms rary preclusions for handgun licenses

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 561 HB 1293 — authorizing court to enter certain SB 230 — modifying employment actions and order regarding driving privileges procedures for school support personnel HB 1328 — sentencing powers of the court and SB 361 — modifying attorney involvement in supervision fees; payment of fee due process hearings of school employees HB 1336 — Elderly and Incapacitated Victim’s ENERGY, OIL, GAS, MINERALS, Protection Program; modifying penalties ENVIRONMENT & NATURAL HB 1413 — authorizing armed private investi- RESOURCES SUBCOMMITTEE gators to openly carry a firearm HB 1525 — Petroleum Storage Tank Release HB 1462 — providing for 10-year registration Indemnity Fund certificates HB 1937 — creating the Oklahoma Brine Recy- HB 1558 — Bus Passenger Safety Act; modify- cling Act ing exception to certain prohibited act HJR 1006 — guaranteeing the right to engage in HB 1722 — providing application requirements certain farming and ranching practices for reprieves, commutations and pardons SB 220 increase in Scenic Rivers Commission HB 1723 — allowing municipal judges to carry power [title stricken] firearms in courtrooms GENERAL GOVERNMENT — LOCAL & HB 1838 — modifying expungement category STATE SUBCOMMITTEE HB 1847 — authorization to declare convenience HB 1336 — Elderly and Incapacitated Victim’s stores selling drug paraphernalia as nuisance Protection Program; modifying penalties HB 1889 — limits on contributions to candi- HB 1415 — creating the Modernization of Agen- dates; political parties to be treated as separate cy Creation Process and Sunrise Act entities HB 1450 — creating the Modernization of Okla- HB 1912 — changing applicability of certain homa Open Records Act protective order requirements HB 1454 — information regarding tax credits; HB 2071 — carrying firearms in certain places; time period for information and disclosure deleting certain prohibitions HB 1455 — creating the Streamlining and Sav- HB 2182 — authorizing clerk to provide records ings Act of 2013 in electronic format HB 1489 — creating the Modernization of Self- HB 2221 — modifying definition of concealed Defense Act Application Process of 2013 handgun HB 1492 — requiring elections be held on cer- SB 618 — requiring certain persons to submit to tain date DNA testing; clarifying requirements for use HB 1499 — limiting exemptions for Govern- SB 708 — making it unlawful to cut or damage ment Business Licensing One-Stop Program fence HB 1887 — changing election dates for mem- SB 984 — deferred prosecution agreements; bers of the board of education modifying requirements for certain agreements HB 1913 — modifying various provisions of the SB1038 — modifying procedures related to Dis- Administrative Procedures Act trict Attorney supervision HB 1914 — creating the Public Agency Fee EDUCATION — COMMON AND HIGHER Moratorium Justification and Disclosure Act of SUBCOMMITTEE 2013 HB 1531 — directing the State Board of Educa- HB 1930 — modifying approval of emergency tion to adopt a certain school grading scale rules HB 2228 — creating the Protection Against HB 2161 — providing exception to certain con- Pedophiles Act fidentiality restriction HB 2279 — creating the Health Education for HB 2200 — permitting the state or its agencies to Middle Schools Act of 2013 contract with a collection agency

562 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 SB 594 — General Corporation Act; modifying HB 1919 — income tax deduction; foster chil- requirements for division into certain classes dren PUBLIC HEALTH, SAFETY & WELFARE SJR 16 — modifying provision related to per- SUBCOMMITTEE sonal property tax exemption HB 1021 — preventing enforcement of certain TRANSPORTATION & MOTOR VEHICLES federal health care acts; SUBCOMMITTEE HB 1260 — which relates to the Uniform Con- HB 1516 — authorizing the Department of Pub- trolled Dangerous Substances Act; modifying lic Safety to issue provisional driver licenses scope of certain definition HB 1839 — requiring criminal history back- HB 1418 — creating the Josephine Meade Anti- ground checks for certain persons Hunger Act SB 582 — service liens on personal property; HB 1491 — State Department of Health shall modifying notice and procedural requirements allow individuals to request birth and death SB 583 — motor vehicle liens; modifying notice certificates through the web and procedural requirements SB 217 — State Department of Health shall WORKERS’ COMPENSATION allow individuals to request birth and death SUBCOMMITTEE certificates through the web [title stricken] HB 1258 — providing insurance carriers with SB 618 — requiring certain persons to submit to options for payment of indemnity benefits DNA testing; clarifying requirements for use HB 1299 — workers’ compensation; modifying SB1030 — victim impact panel programs; estab- exemption lishing requirements for certain programs HB 2054 — workers’ compensation; modifying REAL PROPERTY, LANDLORD & TENANT noncompensable injury SUBCOMMITTEE HB 2201 — creating the CompSource Mutual HB1767 — title insurance or certificate of title; Insurance Company Act countersign modification For more detailed information go to the OBA SB 708 — making it unlawful to cut or damage website at www.okbar.org/s/billsummaries. fence OBA BILLS REVENUE & TAX SUBCOMMITTEE The OBA legislative agenda contained five HB 1252 — creating the Task Force on Manage- bills, which were passed by the House of Dele- ment of Federal Funds; subject to Open Meeting gates. Association bylaws restrict the legislative Act agenda to include bills that have a narrow focus HB 1316 — providing for donation option on on the practice of law and the courts. income tax return Of those five bills only one is still alive, and HB 1363 — sales tax; definitions; use tax it is: HB 1393 — remittance of sales tax HB1086 — an act relating to civil procedure; HB 1625 — sales tax exemptions; gross receipts amending 12 O.S. 2011, Section 2502, which relating to core charges relates to attorney-client privilege; modifying term; and providing an effective date. HB1716 — repealer of Oklahoma Franchise Tax Code Ms. Bartmess practices in Oklahoma City and chairs the Legislative Monitoring Committee. She HB 1918 — taxable income; deduction; penal- may be reached at [email protected]. ties; Patient Protection and Affordable Care Act

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 563 FROM THE EXECUTIVE DIRECTOR

Antipasto By John Morris Williams

Antipasto is the course before a meal. It can be inter- preted to mean “before the meal.” This month’s edition is dedicated to technology. While antipasto and technology seem a strange pairing, there is a message here somewhere. I consider the active use of our systems as the meal and antipasto all the wisdom, testing, stay with something that is installation, consulting, read- working and realize the ing and inquiries necessary to risks and benefits of not create, maintain and operate changing or upgrading. technology. Most attorneys are dealing Technology is wonderful, primarily with data. As frustrating, often expensive — long as you have good and sometimes a complete fail- updates. This has been a three- backup, regardless of the age ure. Before one leaps off into year planning process. We had of the data and the software, the world of thinking that a task force and our Bar Asso- you should be at technology can solve or ciation Technology Committee low risk of losing anything. resolve all matters, a second has worked long and hard to Recently I upgraded look might be recommended. help in the selection process. my personal accounting and A bit of antipasto or taking in It is the antipasto phase that income-tracking software. I the course before the purchase is critical to good results. will not mention the product is highly recommended. One of the other things name here. However, I will say One of the great resources about the antipasto phase is the new version requires con- we have here at the OBA is the decision to go on to pasta version of existing data from Management Assistance Pro- or stop. Technology is expen- the old version. The upgrade gram Director Jim Calloway. sive and emerging in many scrambled years of data. For- Jim has chaired the ABA areas. The iPad was thought tunately, I had a backup. How- TECHSHOW and is a nation- a year ago to be the end all. ever, the new version erased ally recognized speaker. Before Now there are competitors my old version and left me you make a big technology bringing out new products with a mess. I know a number decision, especially in areas and prevailing wisdom sug- of attorneys that use this soft- like billing, trust accounting gests that we might see the ware and am fearful of the and timekeeping, you might iPad go the way of the Black- update negatively impacting want to talk to Jim. berry. I am not making a com- trust accounting. In short, before you buy or update — As I have earlier reported, ment or recommendation, just noting that fads have become do your research. Do the anti- the OBA is in the middle of pasto phase. When it comes to some major technology a big part of technology selection. Sometimes it is good to technology that touches your

564 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 confidential files and your however, skipping the antipas- Before you dine on new trust accounting, the anti- to phase and not using due products and systems, do pasto phase can save you diligence in product selection some antipasto, and it from ethical violations and can have expensive and haz- could save you some major countless hours of wasted time ardous results. I can remember heartburn! reconstructing your files and too many times thinking if I software. A backup is not fool- had a typewriter the thing that proof in how it reloads onto just took me an hour would your system. Corrupt data that have taken 10 minutes. Mainly, is backed up will be corrupt it was because I did not know data when it is reloaded. Thus, how to properly utilize the from time to time you should system or had picked the test your backups. Backup wrong product to use. Poor testing is a very important part training, poor product selec- To contact Executive Director of the antipasto process. tion and using technology to Williams, email him at johnw@ okbar.org. I cannot overstress that tech- perform tasks that it was not nology as a tool is helpful; intended for are major causes of lost time and productivity.

Oklahoma Coalition to Oklahoma Bar Journal Abolish the Death Penalty standard 3” wide, 4 3/8’ tall

22nd Annual Membership Meeting & Awards Dinner Saturday, April 20 Cathedral of Our Lady of Perpetual Help Conner Center, 3214 N. Lake Avenue, OKC (1 block west of Western Ave. and 31st St.) Reception, 5:30 p.m. ▪ Dinner, 6 p.m. More info: www.okcadp.org

Keynote Speaker: Gil Garcetti Former L.A. County District Atty.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 565 ETHICS & PROFESSIONAL RESPONSIBILITY

Morals from the Professional Responsibility Commission’s Annual Report By Travis Pickens The Office of General Coun- tice groups, groups of legal Several sel recently compiled and filed assistants, continuing educa- the Professional Responsibility tion seminars, law school factors are hopefully Commission Annual Report. classes, inns of court and The best news in the report is other law-related gatherings. working to that, overall, the number of That does not include the pre- improve ethics grievances filed is down from sentations made each year by the last year. From 2011 to the OBA’s Management Assis- performance 2012, complaints went from tance Program Director Jim 1,214 against 999 lawyers to Calloway, who averages over among Oklahoma 1,149 complaints against 891 30 presentations a year. These lawyers. lawyers. This is especially presentations relating to law heartening since the number office management and client of lawyers increases signifi- service directly address many cantly twice a year when the issues that enhance ethics • Professionalism in the law school graduates are compliance by lawyers. Jim Practice of Law sworn in — from a total of Calloway also conducts on- 16,955 attorneys in 2011 to site law office evaluations and One unsung factor in the 17,232 in 2012. makes specific recommenda- report that I believe contrib- tions to law firms. utes mightily to fewer ethics Several factors are hopefully issues is the increased utiliza- working to improve ethics The Diversion Classes pre- tion of resources offered performance among Oklaho- sented by my office and the through Lawyers Helping ma lawyers. Beyond timely Management Assistance Pro- Lawyers. It is well established and consistent enforcement of gram as originated by our that alcohol and substance the rules, there are other posi- Professional Responsibility abuse, mental and emotional tive morals that can be Commission are also part of issues are often contributing gleaned from the report. the efforts to increase ethics factors to ethical violations education. There are currently The first moral is that efforts committed by lawyers. The five classes offered as part of to present more and better Lawyers Helping Lawyers the OBA’s Diversion program: education and heighten ethics Foundation garnered its initial awareness may be working. • Professional Responsibili- funding last year due to the General Counsel Gina Hen- ty/Ethics generosity of several lawyers dryx, members of the Profes- and firms. Impacted lawyers • Trust Accounting sional Responsibility Commis- are beginning to ask for and sion and I make over 90 pre- • Communication and get help for intensive therapy sentations each year — specif- Client Relationship Skills or evaluations, beyond the six ically on ethics and the Rules counseling sessions every of Professional Conduct — to • Law Office Management OBA member is entitled to. county bar associations, prac- Increasing the money avail-

566 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 able through the LHL Founda- template from which 49 states Since August, the commis- tion to help lawyers must be a work in fashioning their own sion has focused on several permanent priority. Often, the rules. Therefore, when there specific ethics-related issues lawyers in trouble have put is a change or addition to the arising out of globalization. At themselves in financial posi- model rules, it is likely that the February 2013 ABA meet- tions that delay indefinitely or change, or something similar, ing in Dallas, the commission preclude the appropriate help will bubble up for consider- submitted, and the house and support they need. ation by each state and ulti- adopted, resolutions that per- mately adoption. tained to limited practice Finally, Oklahoma law authority for foreign in-house schools are increasingly Ethics 20/20 was a three- counsel, and choice of rule responding to the reality that year study of how globaliza- provisions relating to the dis- many graduates will be prac- tion and technology are trans- ciplinary rules of a particular ticing as solos or within a forming the practice of law jurisdiction to be applied. loose association upon grad- and how the regulation of There were also recommenda- uation and may not have lawyers should be updated in tions pertaining to rules out- institutional supervisors and light of these developments. side the Rules of Professional mentors. Practical skills class- The Commission on Ethics Conduct, but that relate in es and workshops are in place 20/20 made several resolu- some way to these areas. or are being developed that tions and reports to the ABA will educate students and House of Delegates meetings These changes are not in help equip them to meet these in August 2012 and February place in Oklahoma, but be demands. Jim Calloway’s 2013. watching. They will undoubt- annual “Opening Your Law edly be considered sometime At the ABA meeting in Chi- Practice” seminar offered free soon. For details of the model cago in August 2012, the com- to new lawyers is also helping rule changes passed in Chi- mission proposed — and the to start lawyers off right. cago and Dallas, go to house adopted — several www.americanbar.org. ETHICS 20/20 UPDATE resolutions. The resolutions addressed a wide range of Mr. Pickens is ethics counsel Every state but California topics, including confidentiali- for the OBA. Have an ethics bases its Rules of Professional ty in a digital age, ethics question? It’s a member benefit Conduct upon the ABA Model issues arising from new forms and all inquiries are confidential. Rules of Professional Conduct. of advertising, outsourcing, Contact Mr. Pickens at travisp@ There are state-specific differ- and issues relating to lawyer okbar.org or 405-416-7055; ences of course, but essential- mobility. 800-522-8065. ly, the model rules provide the

To get your free listing on the OBA’s lawyer listing service! Just go to www.okbar.org and log into your myokbar account. Then click on the “Find a Lawyer” Link.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 567 You are not alone.

7 - 8:30p.m. • Thursday, April 4 Topic: Depression, Anxiety and the Practice of Law

Oklahoma City Location Office of Tom Cummings 701 N.W. 13th St. Oklahoma City, OK Tulsa Location University of Tulsa College of Law John Rogers Hall 3120 E. 4th Pl. Rm. 206, Tulsa

Contact Kim Reber @ 405-840-0231 • [email protected] LAWYERS HELPING LAWYERS DISCUSSION GROUP

568 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 BOARD OF GOVERNORS ACTIONS Meeting Summaries

The Oklahoma Bar Association December board meeting, new and swearing in of OBA Presi- Board of Governors met at the board member orientation, dent Stuart and other officers Oklahoma Bar Center in Oklaho- luncheon at Justice Kauger’s and governors. He submitted ma City on Friday, Jan. 11, 2013. house, memorial service for all planning information for REPORT OF THE Bill Conger and Comanche the SCBP meeting and recep- PRESIDENT County Bar Association CLE tion at the ABA midyear meet- with Professor Spector. He ing, preliminary information President Stuart reported he reviewed the Board of Editors for the board retreat in Febru- attended the December Board packet of proposed articles for ary and bill request for the of Governors meeting fol- future OBA bar journals, 2013 legislative session. He lowed by the luncheon at Jus- worked on President Stuart’s prepared for Legislative Read- tice Kauger’s home, Pottawat- 2013 theme of “Lawyers Giv- ing Day and prepared the omie County Bar Association ing Back” and contacted the speakers list for OBA Day at meeting, Southern Conference Communications Committee the Capitol. of Bar Presidents planning ses- chair regarding the next 2013 BOARD MEMBER REPORTS sion, services for Past Presi- meeting and agenda. dent Bill Conger and swearing REPORT OF THE Governor Coogan reported in of Chief Justice Tom Col- PAST PRESIDENT she attended the December bert. He also worked on Board Board of Governors meeting. of Governors swearing-in Past President Christensen Governor Gifford reported he arrangements, gave a lun- reported she attended the chaired the Military and Veter- cheon presentation at the Gar- December Board of Governors ans Law Section meeting and field County Bar Association meeting, December luncheon attended the Military Assis- meeting and worked on the at Justice Kauger’s home, tance Committee meeting, budget and various 2013 Law-related Education memorial service for Past OBA president transition issues. Committee meeting and sub- President Bill Conger, swear- REPORT OF THE committee meeting, memorial ing in of Chief Justice Colbert, PRESIDENT-ELECT service for Past President J. and the Cleveland County Bar William “Bill” Conger, swear- Association Christmas party. President-Elect DeMoss ing in of Supreme Court Chief In addition, he spoke to the reported she attended the Justice Colbert and planning Iowa Nation’s tribal child sup- December Board of Governors session for upcoming Southern port services and court staff, meeting, board holiday event, Conference of Bar Presidents as well as gave a presentation luncheon at Justice Kauger’s meeting. to the soldiers of the 95th Divi- home, swearing in of Chief REPORT OF THE sion on the law of armed con- Justice Colbert and swearing EXECUTIVE DIRECTOR flict. Governor Hays reported in of President Stuart and oth- she attended the December ers. She had done site visits for Executive Director Williams Board of Governors meeting the 2014 Annual Meeting loca- reported he attended the and Christmas party, Decem- tion and has been involved in Board of Governors holiday ber luncheon at Justice planning for the Litigation event, December board meet- Kauger’s home, OBA Family Section and Diversity Commit- ing, December YLD meeting, Law Section CLE planning tee. OBA directors meeting, memo- meeting and Tulsa County Bar REPORT OF THE rial service for Past President J. Association Family Law Sec- VICE PRESIDENT William “Bill” Conger, swear- tion meeting. She communi- ing in of Chief Justice Colbert, cated with the OBA Commu- Vice President Caudle Southern Conference of Bar nications Committee and Law reported he attended the Presidents planning meeting, Day Committee. Governor

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 569 Meyers reported he attended COMMITTEE LIAISON issue of the bar journal, which the board Christmas party, REPORTS will focus on President Stu- December board meeting and art’s emphasis for the year — Governor Hays reported the luncheon at Justice Kauger’s lawyers who give back to their Law Day Committee continues home. Governor Pappas communities. The task is to to work on the Ask A Lawyer reported she attended the identify a lawyer in their dis- TV show, and they are ex- December board meeting and trict who is an unsung hero. ploring the idea of working Christmas party in addition to Board members were asked to together with the Law-related the December luncheon at Jus- interview the lawyer and oth- Education Committee to offer tice Kauger’s house. Governor ers who work with the lawyer teachers lesson plans on track Parrott reported she attended in their volunteer role. It was with the annual Law Day the Board of Governors Christ- noted this is the first time for theme. She said the Solo mas party, December board this type of story in the bar & Small Firm Conference meeting, luncheon at Justice journal. Guidelines and tips Planning Committee will be Kauger’s home, Oklahoma for writing the piece were pro- holding its first meeting of County Bar Association board vided. The submission dead- the year soon. meeting and the memorial ser- line is May 1, 2013. President vice for Bill Conger. Governor REPORT OF THE GENERAL Stuart asked board members Smith reported he attended COUNSEL to notify Ms. DeLacerda the board’s Christmas party, whom they are writing about. December board meeting and General Counsel Hendryx retirement party for Judge Carl briefed board members on *** non-disciplinary matters Robinson. Governor Stevens The Oklahoma Bar Association reported he attended the involving the OBA. She reported there are three actives cases Board of Governors met for a spe- December board meeting, cial meeting at the Oklahoma Bar memorial service for Past Pres- against the OBA, which she believes have no merit. A Center in Oklahoma City on ident J. William “Bill” Conger, Tuesday, Jan. 29, 2013. swearing in of Chief Justice written status report of the Colbert and January Cleveland Professional Responsibility It was determined a quorum County Bar Association meet- Commission and OBA disci- was present, and President ing. Governor Thomas report- plinary matters for December Stuart thanked board members ed she attended the board’s 2012 was submitted for the for their extra effort to attend holiday event, December board’s review. this special meeting. board meeting, luncheon at DOMESTIC VIOLENCE EXECUTIVE SESSION Justice Kauger’s home and FATALITY REVIEW BOARD swearing in ceremony of OBA ANNUAL REPORT The board voted to go into President Stuart and other executive session, met in ses- new officers and governors. Executive Director Williams sion and voted to come out said OBA member Gail Strick- of executive session. REPORT OF THE YOUNG lin, who is the OBA’s represen- LAWYERS DIVISION tative on the review board, 2013 OBA BUDGET submitted the board’s report Governor Vorndran reported Board members voted to that shows in 2011, 114 people he attended the December approve the OBA’s budget died in Oklahoma as a result Board of Governors meeting, as amended. of domestic violence. The luncheon at Justice Kauger’s report provides more details NEXT MEETING home, December YLD meeting and was submitted to the and Pottawatomie County Bar The Board of Governors Board of Governors as back- Association meeting. met at Post Oak Lodge in ground material for their Tulsa on Feb. 22, 2013. A sum- SUPREME COURT LIAISON information. REPORT mary of those actions will be OKLAHOMA BAR published after the minutes Justice Kauger reported the JOURNAL PROJECT are approved. The next board Supreme Court is looking at meeting will be held at Board of Editors Chair the OBA’s 2013 budget and 1:30 p.m. on Friday, April 19, Melissa DeLacerda asked each has appointed a committee. 2013, at the Oklahoma Bar board member to write a short Center in Oklahoma City. article for the November 2013

570 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 571 Save the Date Day ofService Sept. 20 and 21 County Bars are urged to plan community service projects in their areas for these dates. More details coming soon!

572 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 BAR FOUNDATION NEWS

OBF Launches New Website By Susan Shields

The Oklahoma Bar Founda- butions and payment of tion recently updated its Fellow dues online, signing Use your Smartphone and scan website, taking the OBF up for the OBF affinity credit the code to visit the new and improved website and its mission, “Lawyers card and helpful articles and Transforming Lives through resources about OBF pro- the Advancement of Educa- grams and trustees. tion, Citizenship and Justice This site is the culmination for All,” into the digital of efforts of the OBF Technolo- age. Take a look at gy Task Force — led by OBF www.okbarfoundation.org. Chair-Elect and current OBA For OBF Fellows, OBA Vice President Dietmar Cau- members, grantees and dle, other OBF trustees, OBF members of the public, the site Executive Director Nancy is a resource for information Norsworthy, OBF staff and you will see “Make a Contri- about the OBF grant programs web developer Steve Webb of bution,” “Become a Fellow” — including the court grant Left Handed Spider. and “Make Your Fellows Pay- program — and OBF grantees. ment” buttons. You can now When you visit the new site, The site also includes helpful make a donation to the OBF you will notice some new fea- information about setting up a and pay your Fellows dues tures. On the upper, right- lawyer’s trust account (under online! hand side of the home page, the IOLTA tab), making contri-

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 573 Be sure to take a look under the “About OBF” tab at the top of your screen, and go to the “Membership Benefits” section. This includes information about the OBF-sponsored credit card and the Oklahoma Courthouse Legends book authored by OBF Fellow and OBA member Kent Frates and photographer David Fitzger- ald. A portion of each book sold goes to support the OBF. I invite you to take a further look at the new and improved OBF website and to bookmark its address in your web browser. While you’re at it, bookmark the OBF Facebook page, www.facebook.com/ okbarfoundation. Check back often to keep informed about our foundation’s grant awards, membership benefits for our Fellows and other important information. Ms. Shields is OBF president and can be reached at [email protected].

574 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 • To become a Fellow, the pledge is $1,000 payable within a 10-year period at $100 each FELLOW ENROLLMENT FORM year; however, some may choose o Attorney o Non-Attorney to pay the full amount or in Name: ______greater increments over a shorter (name, as it should appear on your OBF Fellow Plaque) County period of time. Firm or other affiliation: ______

• The OBF offers lesser payments Mailing & delivery address: ______for newer Oklahoma Bar Associ- ation members: City/State/Zip: ______n First-Year Lawyers: lawyers Phone: ______who pledge to become OBF Fel- E-Mail Address: ______lows on or before Jan. 2, of the year immediately following their The Oklahoma Bar Foundation was able to assist 25 different programs or proj- admission may pay only $25 ects during 2012 and 26 in 2011 through the generosity of Oklahoma lawyers – providing free legal assistance for the poor and elderly; safe haven for the per year for two years, then abused; protection and legal assistance to children; law-related education pro- only $50 for three years, and grams; other activities that improve the quality of justice for all Oklahomans. then at least $100 each year The Oklahoma Bar legend of help continues with YOU. thereafter until the $1,000 ______I want to be an OBF Fellow now pledge is fulfilled. – Bill Me Later!

n Within Three Years: lawyers ______$100 enclosed & bill annually admitted three years or less at ______Total amount enclosed, $1,000 GRANT PROGRAMS the time of their OBF Fellow ARE IN CRISIS pledge may pay only $50 per ______New Lawyer 1st Year, $25 enclosed year for four years and then at & bill Annually as stated Join to d a y an d least $100 each year thereafter ______New Lawyer within 3 Years, h e l p more t h an until the $1,000 pledge is $50 enclosed & bill annually as stated 90,000 Ok l a h omans fulfilled. ______I want to be recognized at the higher in nee d . level of Sustaining Fellow & will • Sustaining Fellows are those continue my annual gift of at least $100 – Gi v e to d a y at (initial pledge should be complete) who have completed the initial w w w .o k b ar f o u n d ation .org $1,000 pledge and continue ______I want to be recognized at the highest leadership level of Benefactor their $100 annual contribution to Fellow & annually contribute help sustain grant programs. at least $300 – (initial pledge should be complete)

______My charitable contribution to help offset the • Benefactor Fellow is the highest Grant Program Crisis is enclosed leadership giving level and are those who have completed the Your Signature & Date: ______initial $1,000 pledge and pledge to pay at least $300 annually to OBA Bar# ______help fund important grant programs. Benefactors lead by PLEASE KINDLY MAKE CHECKS PAYABLE TO: Oklahoma Bar Foundation • P O Box 53036 • Oklahoma City OK 73152-3036 • (405) 416-7070 example. Many thanks for your support & generosity!

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 575 YOUNG LAWYERS DIVISION

YLD Addresses Trends to Aid Young Lawyers By Joe Vorndran

The landscape of the so. What is most striking to allow those in the twilight of legal profession is undergoing me is the newfound willing- their practice to share their a significant change and the ness, and even excitement on wisdom. Please spread the impact of this change affects the part of young lawyers to word about this event and us all. According to the venture into smaller and more continue to look to the bar National Association of Law rural practice settings. journal for more detailed information as the conference Placement (NALP) there has CONNECTING YOUTH been a steady decline in the AND EXPERIENCE nears. employment rate for recent Mr. Vorndran is YLD chair law school graduates since In response to these trends, and practices in Shawnee. He can 2008. Within this trend there the YLD with the support of be reached at [email protected]. is also a declining number the Solo & Small Firm Confer- of lawyers entering private ence Planning Com- practice and a sharp increase mittee and the in lawyers working in non Board of Governors Bar Exam Survival Kit law-related jobs, and those will be hosting a choosing to be sole practitio- networking event at While the YLD aims to pair young ners right out of school. this year’s Solo & lawyers with experienced ones in Small Firm Confer- 2013, the division also lent its support TRENDS IN OKLAHOMA ence. The event to February’s crop of bar exam test- As the youngest among us should serve a takers. In an effort to help relieve the struggle to find their place in broad base; young anxiety, stress, fatigue and occasional the profession, the overall lawyers seeking health abnormalities that plague many membership is aging rapidly advice, mentorship test-takers, the YLD Board of Directors and many are looking for a and opportunity, as created and handed out a “Bar Exam smooth transition out of prac- well as their more Survival Kit” before the test began on tice or into a reduced role. experienced coun- Feb. 26, 2013. Items in the kit included: Within the Oklahoma Bar terparts who may test taking gear (pencil sharpeners, ear Association 56.4 percent of be looking for an plugs, pencils, pens and erasers); stress our membership is over the associate, an office and mental health management items age of 50 and very few of share arrangement (antacid and aspirin); and brain cata- those solo and small firm or someone to take lysts (peppermint, cinnamon candy and practitioners have adequately over their practice. gum). Leanne McGill led the committee planned for their retirement. behind the kits which were very well The hope is that received by the February examinees. As I attend Young Lawyers relationships can Division events throughout be formed to assist the state, I am struck by the the newest mem- number of young attorneys bers of our profes- thirsty for mentorship and sion in their quest with a motivation to work, but to become outstand- without any opportunity to do ing lawyers and

576 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 G. Blaine Schwabe, III Robert J. Getchell

SOLVING PROBLEMS, MANAGING OPPORTUNITIES GableGotwals welcomes G. Blaine Schwabe, III and Robert J. Getchell as new Of Counsel attorneys to the Firm.

Blaine is widely-known for his expertise in business litigation, bankruptcy and insolvency law, having guided numerous clients though difficult and complex Chapter 11 cases across a wide range of industries. He understands the intricacies of bankruptcy litigation from both the debtor and creditor perspective, giving him unique insight into these difficult cases. Blaine will be located in the Oklahoma City office.

Having spent almost 20 years as staff attorney and general counsel for abstract and title companies, Bob’s experience includes residential, commercial and investment- related real estate transactions. Bob is also an experienced litigator having represented various individual, investment and corporate clients, including some of the country’s largest banks, in adversarial matters covering a wide range of real estate matters. Bob will be based in the Tulsa ofﬁce.

Welcome Blaine and Bob!

TULSA · OKLAHOMA CITY · www.gablelaw.com

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 577 CALENDAR OF EVENTS March

18 OBA Litigation Section meeting; 12 p.m.; 29 OBA Environmental Law Section meeting; Oklahoma Bar Center, Oklahoma City and Tulsa County 11 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Bar Center, Tulsa; Contact Renée DeMoss 918-595-4800 Jeri Fleming 405-334-6343 OBA Alternative Dispute Resolution Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City April and Tulsa County Bar Center, Tulsa; Contact Michael O’Neil 405-232-2020 2 OBA Communications Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa OBA Women In Law Committee meeting; 4 p.m.; 20 County Bar Center, Tulsa; Contact Dick Pryor Oklahoma Bar Center, Oklahoma City and Tulsa County 405-740-2944 Bar Center, Tulsa; Contact Kim Hays 918-592-2800 OBA Government and Administrative Law Ruth Bader Ginsburg American Inn of Court; Practice Section meeting; 4 p.m.; Oklahoma Bar 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Center, Oklahoma City with teleconference; Contact Donald Lynn Babb 405-235-1611 Tamar Scott 405-561-2635 OBA Law Day Contest Awards Ceremony; 2 p.m.; 25 OBA Lawyers Helping Lawyers discussion group Oklahoma State Capitol, Oklahoma City; Contact 4 meeting; 7 p.m.; Office of Tom Cummings, 701 NW Richard Vreeland 405-360-6631 13th St., Oklahoma City; RSVP to Kim Reber 26 OBA Bench and Bar Committee meeting; 12 p.m.; [email protected] Oklahoma Bar Center, Oklahoma City and Tulsa County OBA Lawyers Helping Lawyers discussion group Bar Center, Tulsa; Contact David Swank 405-325-5254 meeting; 7 p.m.; University of Tulsa College of Law, 27 Ruth Bader Ginsburg American Inn of Court John Rogers Hall, 3120 E. 4th Pl., Rm. 206, Tulsa; RSVP masters meeting; 5:30 p.m.; Oklahoma Bar Center, to Kim Reber [email protected] Oklahoma City; Contact Donald Lynn Babb Board of Bar Examiners meeting; 9 a.m.; Oklahoma 405-235-1611 5 Bar Center, Oklahoma City; Contact Oklahoma Board of 28 OBA Work/Life Balance Committee meeting; Bar Examiners 405-416-7075 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa OBA Diversity Committee meeting; 12 p.m.; County Bar Center, Tulsa; Contact Sara Schumacher 10 Oklahoma Bar Center, Oklahoma City with 405-752-5565 teleconference; Contact Kara Smith 405-923-8611 12 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy 405-556-9612 OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU-Tulsa, Tulsa; Contact Donelle Ratheal 405-842-6342 15 OBA Alternative Dispute Resolution Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Michael O’Neil 405-232-2020 16 OBA Civil Procedure and Evidence Code Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa ; Contact James Milton 918-594-0523

578 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Bench and Bar Committee meeting; 12 p.m. OBA Clients’ Security Fund meeting; 2 p.m.; 17 Oklahoma Bar Center, Oklahoma City and Tulsa Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Barbara Swinton County Bar Center, Tulsa; Contact Micheal Salem 405-713-7109 405-366-1234 Work/Life Balance Committee meeting; 12 p.m.; OBA Women in Law Committee meeting; 25 Oklahoma Bar Center, Oklahoma City; Contact 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa Sara Schumacher 405-752-5565 County Bar Center, Tulsa; Contact Dierdre Dexter 918-584-1600 26 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma OBA Board of Governors meeting; 1:30 p.m.; 19 City; Contact Dieadra Goss 405-416-7063 Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-235-7600 Lawyers Helping Lawyers Assistance Program meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma Oklahoma Association of Black Lawyers City with teleconference; Contact O. Clifton Gooding meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma 405-948-1978 City; Contact Donna Watson 405-721-7776 OBA Rules of Professional Conduct Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Paul Middleton 405-231-2622 20 OBA Title Exam Standards Committee meeting; 9 a.m.; Stroud Conference Center, 218 W. Main St., Stroud; Contact Jeff Noble 405-942-4848 OBA Young Lawyers Division meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Joe Vorndran 405-275-0843 23 Board of Bar Examiners Admissions Ceremony; Oklahoma State Capitol Supreme Courtroom, Oklahoma City; Contact Oklahoma Board of Bar Examiners 405-416-7075 www.okbar.org Your source for OBA news.

At Home At Work And on the Go

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 579 FOR YOUR INFORMATION

OBA Member Appointed Secretary of State Lawyer Larry V. Parman of Oklahoma City has been appointed Oklahoma secretary of state by Gov. Mary Fallin. In the post he will serve as a senior advisor to the governor on policy, economic and legislative issues. He began serving March 1. “Larry Parman is a successful and experienced businessman who knows what it takes to create jobs in this challenging economy,” said Gov. Fallin. “He will be a great asset to the state and to my office as we work to develop and implement reforms that improve our business environment and spur private sector growth.” Mr. Parman has served since 1984 as the CEO of Parman & Easter- day, an Oklahoma City estate planning, elder law and business planning firm. He has also been a partner in Notch It Up Strategies LLC, a firm that offers marketing and executive development programs to business owners and C-level executives. He also served as president of The Hawthorn Group, a public affairs firm in Alexandria, Va., and president and CEO of Trencor Inc., an Oklahoma-based financial holding firm. He has served on the board of directors for a variety of civic and business related institu- tions, including the Oklahoma Council on Economic Development, the Research Institute for Economic Development and Junior Achievement of Oklahoma City, where he also served as chairman of the board for two terms. He is also a current member of the Missouri Bar and the American Academy of Estate Planning Attorneys. He also served as a captain in the U.S. Army, receiving an honorable discharge in 1978. He received a bachelor’s degree from the University of Missouri-Columbia and his law degree from the University of Missouri-Kansas City School of Law.

Robert Bacharach Confirmed as Federal Appellate Judge In a 93-0 vote, the U.S. Senate recently confirmed Robert Bacharach of Oklahoma City to the U.S. 10th Circuit Court of Appeals. He was nominated to the court by President Obama in January 2012, but his nomination stalled over election-year politics. The seat had been open since 2010 when Robert Henry stepped down to become president of OCU. Judge Bacharach has served as a magistrate judge for the Western District of Oklahoma since 1999, receiving the ABA’s highest rating for judicial nominations. He earned his law degree in 1985 from the Washington University School of Law and his bachelor’s degree in 1981 from OU.

Aspiring Writers Take Note We want to feature your work on “The Back Page.” Submit articles related to the practice of law, or send us something humorous, transforming or intriguing. Poetry is an option too. Send submissions no more than two double-spaced pages (or 1 1/4 single-spaced pages) to OBA Communications Director Carol Manning, [email protected].

580 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 Lawyers Giving Back

Legal Aid staff attorney Craig Reffner (left) and Oklahoma County Bar Association Presi- Oklahoma County Bar Association YLD members dent John Heatly assist a veteran during the Curtis Thomas, Michael Avery, Merideth Herald, Sooner Stand Down, an annual Oklahoma Kevin Cunningham, Justin Meek, Brian Cramer City event geared toward matching homeless and Dan Couch assist with the Salvation Army veterans with medical, legal and social services. Christmas program.

Lawyers Encouraged to Devote Time, OBA Member Reinstatement Talent to Serving Communities in 2013 The following member of the OBA OBA President Jim Stuart is encouraging all suspended for nonpayment of dues or Oklahoma lawyers and law firms to make giv- noncompliance with the Rules for Man- ing back a top priority. During 2013, the Okla- datory Continuing Legal Education have homa Bar Journal is supporting this effort by complied with the requirements for rein- spotlighting those lawyers and law firms who statement, and notice is hereby given of give of their time, talent and financial resourc- such reinstatement: es to make their communities a better place. Kirk A. Wheeler, OBA No. 9520 Have a great story or photos to share? Email P. O. Box 1801 Lori Rasmussen at [email protected]. Largo, FL 33779

OBA Member Resignations The following members have resigned as members of the association and notice is hereby given of such resignation: Sidney Marie Conway Lance Eugene Houghtling Robert Alan Pritchard OBA No. 10764 OBA No. 13899 OBA No. 21439 1035 N. 27th W. Avenue 4001 S. 4100 Road 1019 Audubon Drive Tulsa, OK 74127 Talala, OK 74080 Memphis, TN 38117 Nicholas Brian Hadzellis Julia Holman Messitte Ruth Ann Rosauer OBA No. 19471 OBA No. 21897 OBA No. 18300 4609 Keith Drive 660 Parrington Oval 172 Highlands Square Dr. Fort Worth, TX 76244 Norman, OK 73019 PMB 307 Ryan Curtis Mushrush Hendersonville, Timothy A. Hart OBA No. 22886 NC 28792-5852 OBA No. 19475 9445 Carlyle Park Place 9901 S. Maybelle Avenue Highlands Ranch, CO 80129 Michael Joseph Spychalski Jenks, OK 74037-3456 OBA No. 19710 Patricia Ann Patten (Nave) 712 Marble Canyon Circle John Richard Henry OBA No. 6946 Irving, TX 75063 OBA No. 4104 2109 Hawkesbury Way 915 S. Columbus Street Lexington, KY 40515-1145 Heather Bickle Westerman Alexandria, VA 22314 OBA No. 18651 Jesse Earl Pond III 906 Stratford Road OBA No. 20807 Ligonier, PA 15658-9005 7812 N.W. 82nd St. Oklahoma City, OK 73132

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 581 Clinton High School Mock Trial Team Heads to Nationals Again Clinton High School’s Gold Team defeated Jenks High School’s Purple Cobra Team in the final round of competition to claim the Oklahoma High School Mock Trial Championship for the second year in a row. The final round of competition was held March 5 in the Bell Courtroom at the OU Law Center in Nor- man. The two teams argued a case that focused on a student suing her former university after her expul- sion. Teams are paired with volunteer attorney coaches. Clinton’s attorney coaches are Julie Strong and Judge Jill Weedon. Oklahoma Bar Associ- ation President Jim Clinton High School Gold Team celebrates their first-place win in the state Stuart of Shawnee Mock Trial championship. said, “The Mock Trial program is an excellent way to present information to students about the workings of our legal system. Both teams did a great job arguing their side of the case, and I am confident the Clinton team will repre- sent Oklahoma well at the national competition in Indianapolis in May.”

Boot Camp CLE Draws Volunteers Dozens of Oklahoma lawyers turned out March 7 for the OBA Boot Camp, a CLE designed to train attorneys to handle the unique legal needs of America’s veterans and military servicemembers. 7.5 hours of MCLE was free to those who agreed to provide 20 hours of pro bono service through the Oklahoma Lawyers for America’s Heroes program. More information about volunteering for the program is available at www.okbar.org/heroes.

Bar Members Take to the Capitol Legislative issues were the focus during OBA Day at the Capitol March 12. Attendees heard from several speakers on topics of interest to the legal profession and pending legislation affecting the administration of justice in Oklahoma. Participants later adjourned to the Capitol to express their own opinions to lawmakers.

Attorney Rick Rose, chief of staff for Oklahoma Speaker of the House T.W. Shannon, discusses “Issues from the Speaker’s Office” at the bar center during OBA Day at the Capitol.

582 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 OBA Members Raise Funds for OETA Kicking off our “Year of Stuartship,” OBA members manned the phone banks at the OETA Festival on March 12 to take donations for public television. Members called in and donated nearly $5,000, which was presented to OETA as a check by President Jim Stuart at the end of the evening. More donations are still pouring in. That amount keeps the OBA at the “Underwriting Producers” donor level. Many thanks to all members who called in and donated on behalf of the OBA, and to the 21 OBA members — some brand new and some long-time veterans — who volunteered their time to answer all those calls! Melinda Alizadeh-Fard John Claro Jerrod Geiger Samuel Glover Greg James Mark Koss Wilson McGarry Mike Mims Dwayne Morris Ernest Nalagan Ed Oliver Robert Powell Jennifer Prilliman Charles Rouse Linda Ruschenberg Michael Shanbour Ricki Sonders James T. Stuart Ian Tennery OBA President Jim Stuart presents an on-air donation to OBA Margaret Travis member and OETA spokesperson Kimberly Brasher during OETA Mary Travis Festival 2013.

You Are Not Alone: All Interested Attorneys Invited to Attend LHL Discussion Groups The OBA’s Lawyers Helping Lawyers Assistance Program Committee (LHL) hosts a series of monthly meetings led by LHL Committee members. The small-group discus- sions, held in both Oklahoma City and Tulsa on the same day, are intended to give group leaders and participants the opportunity to ask questions, provide support and share information with fellow bar members to improve their lives — professionally and personally.

Next meeting: Thursday, April 4, 7 – 8:30 p.m. Topic: Depression, Anxiety and the Practice of Law

Oklahoma City Tulsa The Office of Tom Cummings University of Tulsa College of Law 701 NW 13th Street John Rogers Hall 3120 E. 4th Pl., Room 206

Your confidential RSVP for food/drink ordering to [email protected] is helpful, but not required.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 583 Electronic member survey Coming Soon! Your input is important!

You will receive the survey via email. Complete it by April 5 and you could win ĂΨϱϬϬƉƉůĞŐŝŌĐĂƌĚ͊

584 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 BENCH & BAR BRIEFS

ableGotwals announces pencer B. Housley an- GG.Blaine Schwabe III Snounces the opening of has joined the firm’s Oklaho- Housley Law Group PLLC ma City office. His practice located at 4808 N. Classen focuses on business litigation, Blvd. in Oklahoma City. The rowe & Dunlevy attorney bankruptcy, insolvency law, firm will practice primarily in CJimmy Goodman of debtor-creditor relations and the fields of personal injury, Oklahoma City has been commercial law. Mr. Schwabe medical malpractice and fam- elected to the American Bar also has experience in tele- ily law. Association Board of Gover- communications litigation itch D. McCuistian of nors for a three-year term. and insurance company insol- Oklahoma City has vency. He earned his B.B.A M ichael F. Smith has been joined the law firm of Evans & from OU in 1970 and earned Davis as an associate attorney Melected as chairperson his J.D. from the OU College elect of the OBA Appellate where his practice will focus of Law in 1974. Practice Section and will on estate planning, business begin his term in the 2014 obert. J Getchell has organization and succession calendar year. He is a trial Rjoined GableGotwals as a planning, as well as general and appellate lawyer in new of counsel attorney at the civil litigation. He studied McAfee & Taft’s Tulsa office, firm’s Tulsa office. His prac- finance and marketing at the focusing on complex civil tice will focus on real estate University of Arkansas before litigation. The section offers law, particularly in the area attending the OU College of opportunities for Oklahoma of litigation, bankruptcy and Law in 2012 where he served lawyers to experience pro- transactional matters. He has as class president. fessional growth through more than 20 years experi- teidley & Neal PLLC is monthly meetings with pre- ence as a staff attorney and Spleased to announce that sentations by appellate court general counsel for abstract Jackie Jo Perrin of McAlester judges, Oklahoma Supreme and title companies. An expe- has joined the firm as an asso- Court justices and other rienced litigator, he has repre- ciate. She earned her bache- experts in appellate practice. sented various individual, lor’s degree from Southeastern usan K. (Noland) Johnson investment and corporate Oklahoma State University in Shas been elected Oklaho- clients. He received his J.D. elementary education, and ma County special judge- from Oral Roberts University went on to earn a master’s elect. She will take the oath in 1985 and his B.A. in history degree in special education of office on Monday April 1 from ORU in 1982. specializing in learning disabilities. She obtained her J.D. at 9 a.m. in courtroom 809 at ndrews Davis announces the Oklahoma County Court- from the OCU School of Law. Athat David H. Dobson Her practice is primarily in house. The public is invited has accepted a position of to attend. the areas of family law, per- counsel with the firm and sonal injury, wrongful death, will join the litigation depart- estate planning, probate, oil ment. His experience includes and gas, construction law and general insurance defense, real estate issues. She is a product liability, professional member of the Pittsburg liability, employment and County Bar Association and labor, health law, lending law, has been active in the Tri- and alternative dispute reso- County Bar Association of lution and mediation. An McCurtain, Choctaw and embers of the Dunlap Oklahoma City native, he Pushmataha counties. MCodding law firm holds a J.D. from OCU and a announce they have moved B.A. in history from OU. he law firm of Helms & their offices to 609 W. Sheri- TUnderwood is pleased to dan Ave. in Oklahoma City. announce that Glenn Kath-

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 585 leen Brown of Oklahoma to human resources profes- How to place an announce- City has become a new asso- sionals at Farzaneh Law Firm ment: The Oklahoma Bar Journal ciate at the firm. Ms. Brown in Norman. welcomes short articles or graduated magna cum laude news items about OBA mem- ohn Rothman of Tulsa pre- from OCU School of Law in bers and upcoming meetings. If sented “Ethical Consider- May 2012. During law school, J you are an OBA member and ations of Full Settlement she received Faculty Honor you’ve moved, become a part- Authority in Mediation” to ner, hired an associate, taken Roll and Dean’s List honors, the Oklahoma City Commer- on a partner, received a promo- won a CALI award in admin- cial Attorneys Association on tion or an award, or given a istrative law and was selected March 12. talk or speech with statewide for the Order of the Barristers. or national stature, we’d like aul R. Foster of Norman to hear from you. Sections, Ppresented to the Commu- committees, and county bar nity Bankers Association at associations are encouraged to its Winter Leadership Con- submit short stories about ference held in South Lake upcoming or recent activities. Tahoe, Nev. His presentation Honors bestowed by other was titled, “Current and publications (e.g., Super Law- Emerging (Actual Real Life) yers, Best Lawyers, etc.) will not be accepted as announcements Regulatory and Legal Issues.” BA 2011 President Debo- (Oklahoma-based publications Carrie L. Foster, also of Nor- rah Reheard, who chairs are the exception.) Information O man, presented on the topic the Oklahoma Lawyers for selected for publication is “The Oklahoma Financial Pri- America’s Heroes Program, printed at no cost, subject to vacy Act – Civil Subpoenas” and OBA Governor Robert editing, and printed as space at the conference. Don Gifford III, chair of the permits. Military and Veterans Law onor Cleary of Tulsa Submit news items via email to: Section, recently gave presen- Cwill deliver a lecture on Jarrod Beckstrom tations on the Heroes Program the legal challenges to the Communications Dept. and an overview of military Defense of Marriage Act and Oklahoma Bar Aassociation law to the Arkansas Bar Asso- Proposition Eight. The lecture (405) 416-7084 ciation in Little Rock, Ark. is part of a bimonthly lecture [email protected] series on legal topics relevant mir Farzaneh and Tyler Articles for the April 13 issue to LGBT Oklahomans and Christians recently pre- must be received by March 18. A will take place March 28 at sented “Deferred Action for the Dennis R. Neill Equality Childhood Arrivals, What Center in Tulsa at 7 p.m. Does It Mean for Employers”

IN MEMORIAM

ohn Belt of Oklahoma City the Lyric Theatre, Oklahoma E. Davis Affiliated Fund and Jdied on March 10. He was Theater Center, Allied Arts was a member of the Board of born on March 14, 1936 in Foundation, Arts Council of Directors of The Paseo Arts Dallas. Prior to entering col- Oklahoma City, Oklahoma Association. He was an lege, he served in the Army. Mental Health Foundation accomplished lawyer and He received his B.F.A. and J.D. and the Oklahoma Humani- served as president of the from OU and started practic- ties Council. At the time of his Oklahoma County Bar Associ- ing law in 1963. An accom- death, he was serving as sec- ation and assumed various plished actor and singer, his retary and general counsel of other leadership roles with passion for creative expres- the Oklahoma City Commu- the OBA. His contributions to sion led him to become a nity Foundation, advisory the Oklahoma City communi- renowned advocate for the director of City Arts Center, ty are astounding, particularly arts in Oklahoma City. He trustee of the Kirkpatrick the effort he led to restore the helped create and grow over Family Fund, the Kirkpatrick historic Paseo arts district. 40 local nonprofits including Foundation and the William

586 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 immy Birdsong of Oklaho- and established a practice in cial judge in 1995. He was a Jma City passed away on Oklahoma City. A sports lover charter member of the Oklaho- Feb. 9. Mr. Birdsong was born and outdoorsman, he cher- ma City Fraternal Order of on April 27, 1925, in Little ished time spent outdoors and Police, Lodge 123. His career Rock, Ark., and moved to time spent with his family. accomplishments attest to the Oklahoma City as a young commitment he made to serv- lan C. Durbin passed boy. He served in the Army ing, protecting, and above all, away on March 1. He was during World War II and was A to justice. Memorials may be a partner at Andrews Davis in the Third Infantry Divi- made to the St. Paul A.M.E. and practiced at that firm for sion. During the war, he was Church (Wichita, Kan.) schol- over 40 years. After graduat- shot by a German sniper arship fund. while tending to two injured ing from high school in Michi- soldiers in his unit. Miracu- gan, he moved to Oklahoma ichael Raymond McKee lously, the bullet hit a steel- and received his B.A., M.A. Mdied Feb. 20, in Norman. plated Bible given to him and J.D. from the University He was born May 1, 1942, in by his mother in his breast of Oklahoma. In his time at Little Rock, Ark. He graduat- pocket, preventing the bullet Andrews Davis, Alan prac- ed from Harding High School from hitting his heart, but ticed in the area of real prop- in Oklahoma City. He attend- the slug ricocheted into erty and title law. He also ed OU and studied contempo- his arm instead. His unit served on the Oklahoma title rary European history and received the Presidential Examination Standards Com- German for his undergradu- Citation and he was awarded mittee. An adoring husband ate degree. Following his pas- the Purple Heart, Bronze and dedicated father, Mr. sion for service, he joined the Star, European Theater Oper- Durbin inspired those around Peace Corps after college ations Ribbon, and three him and used his knowledge which took him to Truk Island battle stars. After his military and experience to mentor in Micronesia. Upon his return service, he earned his bache- many lawyers throughout his he earned his J.D. from the OU lor’s from OU and graduated career. He was always devot- College of Law and established from the OCU School of Law. ed to his church, serving as his practice four years later. He passed the Oklahoma bar deacon and an elder at the His true pleasure in life was exam in 1954 and practiced First Christian Church in helping others. Whether he law for 35 years at the firm he Norman. was serving as the assistant city attorney in Norman, help- founded. He also represented udge Charles Hill died on ing new attorneys in his firm the 45th District in the state Feb. 26, in Wichita, Kan. J launch their careers, or assist- Senate from 1965 to 1981. He Born on Sept. 16, 1932, in ing non-native speakers navi- served as assistant majority Pittsburgh, Pa., he began a gate English, a common theme floor leader from 1969 to 1972 career in law enforcement in throughout his life was service and was majority floor leader 1958, working undercover for to others. Memorial donations from 1973-1974. During his the Federal Bureau of Narcot- may be made to the Chinese political career, he authored ics (a predecessor of the Drug Fellowship Fund at Trinity and passed more than 100 Enforcement Agency). His Baptist Church in Norman. bills. A devoted family man work brought him to Oklaho- and enthusiastic outdoors- ma City in 1961 and he eventu- ames Robert (Jimmie) Mer- man, Mr. Birdsong loved fish- ally joined the Oklahoma State Jedith passed away Feb. 17 ing, golfing and race horses. Bureau of Investigation. In in Tulsa. He was born Aug. ohn Kenneth Bush of Fay- 1966, he joined the Oklahoma 16, 1920, in Blytheville, Ark., Jetteville, N.C., died Feb. 7 in City Police Department and and moved to Tulsa with his Oklahoma City. He was born worked there for 20 years, family in 1932. He graduated in Fayetteville, N.C. on Jan. retiring with the rank of cap- from Tulsa Central High 30, 1955. He graduated from tain. While working as a police School in 1938 and joined the New London, N.C. in 1974 officer he earned a B.A. and Oklahoma National Guard and graduated from East Car- J.D. from OCU. He started a shortly thereafter. After his olina University with honors. private practice in 1986 and military service, he attended He earned his J.D. from Okla- practiced criminal defense law the University of Tulsa where homa City University in 1998 until his appointment as spe- he earned his undergraduate

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 587 and law degrees. He passed from Oklahoma Northeastern voracious reader, and a great the Oklahoma bar exam in State College in 1968, and friend to many. Memorial con- 1960 and was a member of the graduated from the OU tributions can be made to the OBA for more than 60 years. College of Law in 1975. He Westminster Presbyterian He worked for the First served in the Navy from 1968 Church Choir. National Bank of Tulsa and to 1972, working in Navy avid Young of Sapulpa retired at age 55 as vice presi- Intelligence. An avid out- passed away on Feb. 15. dent and senior trust officer. doorsman and adventurer, he D He earned his bachelor’s Mr. Meredith established a pri- lived his life with enthusiasm degree from OU and went on vate practice following his and championed causes like to study law at the University retirement. Outside of his pro- that of the Avian Research of Michigan. He graduated fessional life, he was an avid Center, the organization large- with a J.D. in 1949. He served family historian, researching ly responsible for the rehabili- in the Marine Corps from his family’s history and com- tation of the American Bald 1942-1952 and was in the piling it for future generations. Eagle. In his 40 years of prac- Marine Corps Reserve from tice, Mr. Neal helped build enneth “Ken” Nance of 1952-1972. He retired with the firm Riggs Abney Neal Oklahoma City died on the rank of colonel on June K Turpen Orbison & Lewis. Feb. 14. Born on Oct. 1, 1941, 12, 1981. During his military Contributions in Mr. Neal’s he moved to Oklahoma City career, he served with the honor can be made to The as an infant and remained 2nd Marine Division and Nazih Zuhdi Transplant there for the rest of his life. He was a lieutenant in the 2nd Institute. graduated from Capitol Hill Amphibious Tractor platoon High School in 1959 and went .B. “Barry” Rooker III in the Pacific during World on to OCU where he earned Dpassed away June 28, War II. Later, he was the his bachelor’s and J.D. He 2012 in Oklahoma City. Mr. major company commander started working in politics Rooker was born May 5, 1943, in the 1st Armored Amphibi- and served as an assistant in Oklahoma City, graduated ous Tractor Battalion during attorney general after law from McCloud High School the Korean Conflict. He was school. In 1968 he was elected and earned both his B.A. and elected district attorney for to the Oklahoma House of J.D. from the University of Creek and Okfuskee counties Representatives and served in Oklahoma. His innate curiosi- in 1966 and served in that role the Legislature until 1978. Fol- ty, unique wit, and engaging for 20 years. He practiced law lowing his public service, he personality enabled him to at Young, Young and Young established a law practice and find success in business as with his brothers and father. started his consulting firm in well as in his personal travels He was very active in the 1979. This upcoming legisla- around the country and community where he was a tive session would have been world. Mr. Rooker owned and member of the First Baptist his 50th consecutive at the operated Qualitron Aero Ser- Church, Chamber of Com- Capitol. vices in Houston, Texas, a merce, Sapulpa Historical company that provided air- Society, Lion’s Club, Ameri- ary Lucas Neal of Tulsa craft services to the private can Legion and Veterans of died Feb. 18. He was born G aviation industry. He was an Foreign Wars. Sept. 27, 1946, earned his B.A. avid classic car restorer, a

588 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 CLASSIFIED ADS

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Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 589 OFFICE SPACE POSITIONS AVAILABLE JENKS OFFICE SPACE. Case share - mentor opportu- AV RATED TULSA LAW FIRM IS SEEKING AN AT- nity. Fully furnished. Access to conference room. Free TORNEY with a minimum of 5 years of business and parking, modern one-story building with established civil litigation experience to provide research and writ- attorneys. Easy access to Tulsa, Creek, Rogers, Wagoner ing support for trial team. Candidate should have ex- Courthouses. Two spaces available, $550 per month. cellent and provable experience in both areas. The Contact [email protected]. compensation package is commensurate with level of experience and qualifications. An exceptional benefit MIDTOWN PLAZA LAW CENTER OFFERING package includes bonus opportunity, health insurance, SUITES. OKC Law offices available 2 blocks from State life insurance, and 401K with match. Applications will & Federal Courthouses. Referrals from six established be kept in strict confidence. Please send résumé to “Box lawyers available. Rent includes receptionist, one or F,” Oklahoma Bar Association, P.O. Box 53036, Okla- two offices, phones, internet, cable TV, parking, coffee homa City, OK 73152. & water service, alarm security and kitchen. Call for viewing. 405-272-0303. AT&T ATTORNEY – OKLAHOMA CITY, OK. Fortune 100 telecommunications company seeks experienced, OFFICE SHARE self-reliant civil litigation attorney seeking opportunity for continued trial experience and to manage a diverse, OFFICE SHARE FOR RENT: NW Classen, OKC. Tele- challenging litigation docket to fill an immediate open- phone, library, waiting area, receptionist, telephone an- ing in its Oklahoma City, OK office. Excellent academics swering service, desk, chair, file cabinet, included in and a minimum of 5 years of litigation experience, in- rent one for $290 and $390 per month. Free parking. No cluding demonstrable trial experience, required. Quali- lease required. Gene or Charles 405-525-6671. fied candidates must possess excellent oral and written DOWNTOWN TULSA OFFICE SHARE available across communication skills, computer and organizational the street from U.S. and Tulsa County District Courts. skills, as well as the ability to interact with all levels of Suitable for civil rights, civil defense, employment or management and to work independently. Applicants other practice areas that complement our busy practice. must be a member in good standing of the Oklahoma Bar Please send reply to “Box Q,” Oklahoma Bar Association, and must be licensed, or eligible to be licensed, in all fed- P.O. Box 53036, Oklahoma City, OK 73152. eral courts located in Oklahoma. Applicants must be willing to relocate should the needs of the business require. A résumé, writing sample, references, and copy of POSITIONS AVAILABLE law school transcripts verifying J.D., grade point and ASSOCIATE ATTORNEY: We are a small law firm look- class standing will be required of all applicants. Apply at ing for an attorney with at least 2-5 years of experience. http://att.jobs, Job Number 1314599. The ideal candidate will have experience in insurance LOCAL COUNSEL COLLECTIVE is a nationwide net- defense/personal injury litigation, including trial work of attorneys that covers thousands of short pro- work, depositions, preparing motions, and attending cedural hearings, focused on creditor’s rights, across court hearings. A background in civil rights law and/ the country. We are currently looking to expand our or education law representing public entities and/or network with attorneys willing to accept local hearing corporate defense is beneficial. The position entails assignments. We are especially interested in attorneys some trial work, representing public entities in admin- located in rural areas. If you’re interested in supple- istrative hearings, counseling clients on legal issues menting your small or solo firm income, feel free to reg- and presentations at in-service seminars. Client repre- ister at http://localcounselcollective.com/attorneys. sentatives are professional and/or managerial. The If you have any questions, please give us a call at firm is more than 20 years old and has awell- 800-910-1492, ext. 2 for Attorney Services. You can also established clientele. We work hard and take great email us at [email protected]. pride in our work, but we avoid the “corporate” law- OIL AND GAS TITLE ATTORNEY: Law firm in Tulsa firm culture. Our work environment is pleasant, and seeking an attorney to prepare oil and gas title opin- we function on a collaborative basis between attorneys ions. Strong preference will be given to attorneys who and staff. All replies confidential; send résumé, writing have experience checking land records or writing title sample, and salary requirements to Center for Educa- opinions. All applications will remain confidential. tion Law, 900 N. Broadway, Suite 300, Oklahoma City, Please send résumé to “Box DS,” Oklahoma Bar Asso- OK 73102 or [email protected]. ciation; P.O. Box 53036; Oklahoma City, OK 73152. THE PAWNEE NATION OF OKLAHOMA is accepting LEGAL ASSISTANT FOR SMALL OKC DOWNTOWN applications for the position of Public Defender. For a OFFICE. Must be experienced with civil litigation. complete job description, please visit the Pawnee Na- Would like someone with at least 5 years experience. tion website at www.pawneenation.org. To apply, sub- Must also be proficient in typing and WordPerfect. mit a cover letter and curriculum vitae to the Pawnee Must have strong work ethic and must be self moti- Nation of Oklahoma, Attn: Linda Jestes, Secretary, vated. Competitive salary based on experience. Please Pawnee Nation Business Council, PO Box 470, Pawnee, email résumés to [email protected]. OK 74058. Applications may also be emailed to vwills@ pawneenation.org. The deadline to apply is 5 p.m. on Tuesday, March 19, 2013.

590 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013 POSITIONS AVAILABLE POSITIONS AVAILABLE EXPERIENCED LITIGATION ASSOCIATE (3-7 DEFENSE LITIGATION FIRM SEEKS EXPERIENCED years) needed by AV-rated Tulsa insurance and trans- LITIGATION ATTORNEYS for Tulsa office, preferably portation defense firm. Very busy, fast-paced office with 7+ years of experience. Strong management skills offering competitive salary, health/life insurance, are also required. Jury trial experience, complex case 401k, etc. Candidates with strong academic back- file management and mentoring abilities are key needs ground and practical litigation experience, please for this position. This is the perfect environment for send a cover letter describing what you consider are those that wish to mentor and be mentored. Please sub- the three greatest victories of your legal career, a ré- mit your résumé and writing sample to “Box U,” Okla- sumé and writing sample (10 pg. max) in confidence homa Bar Association, P.O. Box 53036, Oklahoma City, via email to [email protected]. OK 73152. OKLAHOMA CITY LAW FIRM concentrating in the statewide representation of mortgage lenders seeks at- FOR SALE torney. Title examination helpful, but will train the LAKEFRONT LAKE HOUSE FOR SALE on Oklahoma right candidate. Statewide travel required. Send résu- side of Lake Texoma. Great time to buy - mortgage rates mé to “Box D,” Oklahoma Bar Association, P.O. Box are low! Steps from sandy beach, blocks from boat 53036, Oklahoma City, OK 73152. launch. 3/2, large windows open to million dollar view, new multi-level deck overlooking lake, wet-bar, tile ADMINISTRATIVE ASSISTANT POSITION open for a floors, fireplace, outdoor shower, and sprinkler system. two-attorney, in-house legal department located in Secluded area next to Corp of Engineers forested prop- north Oklahoma City. Applicant must be proficient in erty. Asking price: $324,000. For more information, Di- general office skills including word processing, filing, ane Carruth cell: 580-564-5839; Office: 580-564-2346. working with people and assisting with periodic large projects. College degree and/or experience preferred. Send replies to “Box EE,” Oklahoma Bar Association, CLASSIFIED INFORMATION P.O. Box 53036, Oklahoma City, OK 73152. CLASSIFIED RATES: $1 per word with $35 minimum per in- LARGE, VERY ESTABLISHED TULSA BASED MAN- sertion. Additional $15 for blind box. Blind box word count UFACTURING COMPANY seeks attorney with 5+ must include “Box ___, Oklahoma Bar Association, P.O. Box years contract/business transactional experience for an 53036, Oklahoma City, OK 73152.” Display classified ads with in-house opening in its Tulsa office. The position will bold headline and border are $50 per inch. See www.okbar.org require the successful candidate to review, analyze and for issue dates and display rates. draft various contract-related items including purchase DEADLINE: Theme issues 5 p.m. Monday before publication; orders and terms and conditions. Experience utilizing Court issues 11 a.m. Tuesday before publication. All ads must liens and bonds to secure payment, as well as experi- be prepaid. ence conducting credit investigations and collection ef- SEND AD (email preferred) stating number of times to be pub- forts are strongly preferred. All applicants must be li- lished to: censed to practice law in Oklahoma. Equal Opportunity [email protected], or Employer. To apply, please send resume with cover let- Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036, ter to “Box FF,” Oklahoma Bar Association, P.O. Box Oklahoma City, OK 73152. 53036, Oklahoma City, OK 73152. Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly non-discriminatory.

Vol. 84 — No. 8 — 3/16/2013 The Oklahoma Bar Journal 591 THE BACK PAGE

Ballad of the Hearsay Rule By Bryan Lester Dupler

Relevance reigns our evidence rules When the speaker’s not on hand for trial And second is, hearsay’s enjoined From death or lesser travail The measure of just and true inquest Here are some rules, unheeded by fools, From long experience coined: That lead us to treasure or Gaol: Extra curiam dictis,* as proof of facts A prior sworn statement from some other hearing, Asserted, on most issues tried, Where a chance of inquiry extended Shall not be admitted (nor writings, nor acts) To the party against whom the transcript is offered, Where a cross-enquiry’s denied. Is proper. The matter is ended. Here is that storied injunction of old In trials of homicide and civil cases, That devils the judge all day In courts across the nation Force and weight upon myriad questions Great Wigmore has freed, from hearsay’s braces, And many could go either way. Dying declarations. For statements are often offered to show A statement against pecuniary interest They were made, or simply scienter Is useful trial propaganda In jests ere the blow, or slurs ere the blade And if you make a statement against penal interest The truth of a word’s but a splinter. We probably should read you Miranda. Exceptions evolved, in two general classes The statement of a child of less than thirteen The distinction is sometimes ethereal Describing vile acts, or abuses Some apply only when the speaker’s gone missing Is admissible under a quite modern rule In others, that fact’s immaterial. Though Crawford may limit its uses A trinity first, when rendered in prose The longer a lawyer practices law Too much of what’s said is extraneous The more hearsay one sees The common law saw them just how they arose: With luck, I’ll find that “catch-all” kind These statements are all quite spontaneous. With its “equivalent circumstantial guarantees.” Excited utterances fairly leap forth A gentle reminder while the coffee’s warm From startling events and conditions Before our thought’s diverted And statements perceiving the fact, or just after All these exceptions take hearsay as proof Are present sense impressions. On the factual matters asserted. The things we say about how we feel, And just one word of warning more Whom fear, or love, or hate That bears our careful reflection Can prove a declarant’s then state of mind Most any hearsay is good evidence In damn near every state. Unless there’s a timely objection. Victims talk to doctors and nurses O, worthy rule, your noble light When hurt by wreck or crime Upon our trials does cast And statements made for diagnosis or treatment The glory of our common law Are admitted in court all the time. From cruel misfortune’s past And if the declarant were in a great hurry Good sentinel and faithful patron But jotted a detailed record Of the right to cross-examine: This past recollection can be read to the jury A suitor’s chance for boon or bust If the witness’s memory’s gone checkered. A lawyer’s feast or famine. Business records are a potent source Of acts in due course recorded And are by the hearsay rule excepted *Out of court statements When kept, and boxed, and hoarded. These are the common hearsay exceptions Mr. Dupler is a judicial assistant at the Oklahoma Court Where declarants might be available of Criminal Appeals. A song made strong with greater detail For brevity, would be assailable.

592 The Oklahoma Bar Journal Vol. 84 — No. 8 — 3/16/2013