Opening a Law Office 1662 Editor: Dietmar Caudle New Disability Law Section

Volume 86 u No. 21 u Aug. 15, 2015

ALSO INSIDE

• Lawyers in Leadership CLE • my.OKBar.org Improvements • New Disability Law Section • Leadership Academy Participants Announced Program Planners/Moderators: David A. Poarch, OBA President, Norman John Morris Williams, Executive Director, OBA

SEPTEMBER 16, 23, & 30, 2015 Noon – 2 p.m. LOCATION: Your choice: Any place with a computer! LLC Tax for Non-Tax Lawyers: A Plain English Explanation

John M. Cunningham is of counsel to the northern New England law firm of McLane, Graf, Raulerson & Middleton, P.A. His practice is focused on LLC formations and on business entity restructuring. He is the author of Drafting Lim- ited Liability Company Operating Agreements, the leading U.S. LLC formbook and practice manual, published by Wolt- ers Kluwer Law & Business. He has taught numerous OBA LLC seminars, all of which have received high attendee evaluations.

This course will provide non-tax lawyers with clear, non-technical explanations of: Tax choice of entity - i.e., the process of choosing the best federal income tax regimen for single-member and multi-member LLCs; The tremendous economic advantages potentially available to LLCs under Internal Revenue Code Subchapters K (partnership taxation) and S (S corporation taxation) How to draft basic federal tax provisions in LLC operating agreements.

Seminar materials will include LLC model operating agreements implementing the above explanations.

Programs begin at noon and adjourn at 2:00 p.m. SEPT. 16 Introduction to the LLC law and Quick Review of Federal Income Taxation and Tax Tasks in Forming LLCs Check-the-Box Regulations - The Foundation of LLC Tax This course has been ap- SEPT. 23 proved by the Oklahoma Bar Association Mandatory How to Choose the Best Federal Income Tax Regimen for an LLC for Federal Income Continuing Legal Education Tax Purposes Commission for 2 hour of How to Choose the Best Federal Income Tax Regimen for an LLC for Social Security Tax mandatory CLE Credit, including .50 hours of ethics Purposes for the September 30th Important Tax Provisions in Operating Agreements webcast. Registration for all 3 events is recommended but not required. Ques- SEPT. 30 tions? Call (405) 416-7029. Tax Provisions in Operating Agreements (cont’d) TUITION: $250 for all three Statutory Conversions of Corporations to LLCs - Overview of Oklahoma Business dates or $100 each. No dis- Organization and Federal and State Tax Law counts. Register online at: Ethical Issues in Handling Tax Issues in LLC Formations www.okbar.org/members/- cle

1602 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Theme: pg. Opening a Law Office 1662 Editor: Dietmar Caudle New Disability Law Section

contents Departments Aug. 15, 2015 • Vol. 86 • No. 21 1604 From the President 1640 Editorial Calendar 1679 From the Executive Director 1681 Law Practice Tips 1683 Ethics & Professional Responsibility 1686 OBA Board of Governors Actions 1693 Oklahoma Bar Foundation News 1696 Young Lawyers Division 1699 Calendar 1701 For Your Information 1603 Bench and Bar Briefs 1607 In Memoriam 1608 What’s Online 1612 The Back Page pg. Features 1664 1607 The What, Why and How of Search Participants Engine Optimization (SEO) Selected By Jared K. Nelson Plus 1613 Ethical Considerations When Opening a Law Practice 1655 Letter to the Editor By Joseph P. Balkenbush 1656 Taxation Law Section: 2015 Oklahoma Tax Legislation 1619 Insurance for Lawyers and Law Practices By Sheppard F. Miers Jr. By Jennifer Beale 1660 Master Lawyers Section: Are You a Cobbler or a Lawyer? 1627 Opening a Modern Law Office: Coping By Renée DeMoss with Today’s Rapidly Changing Law Firm Business Model 1662 Join the New Disability Law Section to Fight to Give the Disabled Their By Jim Calloway Voice Back Because It Is Not Your Money! 1633 1664 Leadership Academy Participants By D. Scott Pappas Announced 1637 Professional Liability: A Lawyer and 1665 Promote Your Practice with the Law Firm’s Major Exposure New my.OKBar.org By Phillip D. Fraim 1670 Changes Proposed to RGDP Rule 3.3: 1643 The Importance of Your Fellow Lawyers Member Comments Requested By Tracey Garrison 1671 End of Session Legislative Report - 1647 The Non-Tech Side of Starting Your Own Part 2 Practice By Duchess Bartmess By Michelle C. Harrington 1675 Photo Highlights: Sovereignty 1653 11 Things to Know When Starting a Symposium Small Town Practice 1678 OBA Nominating Petitions and Board By Stephen Beam of Governors 2016 Vacancies

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1603 FROM THE PRESIDENT Tension Among Branches of Government Escalating By David Poarch

Fueled by politics, a remarkable level of hostility is continu- political attacks on the judiciary diminish ally directed at our judiciary today. Partisan fury fuels the rancor at both the independence of the judiciary, and at the state and federal level. Examples are widespread at all levels and on least equally, if not more importantly, the both sides of the aisle. Railing against the decision in Bush v. Gore, one public’s confidence in our system of jus- Democratic U.S. senator accused the nation’s highest court of “install- tice. The distinction between fair criticism ing” George W. Bush in the White House, labeling it “the most activist of judicial opinions and intimidation and Supreme Court in history.” threats directed at judges is an important one. In our own state, when the Oklahoma Supreme Court recently ruled that the ex- The increasing Fair criticism plays a critical press language of the Oklahoma Constitu- role in improving the quality of tion precluded the placement of a privately political attacks the courts, no doubt. Every donated Ten Commandments monument on on the judiciary appeal, every petition for re- the grounds of the state Capitol, several hearing, every dissent is a criti- members of the legislature called publicly for diminish the cism of a judicial decision. We the impeachment of the justices who joined in have every right and should the majority opinion. These are but two exam- independence of the ask if a decision is correct. ples in a sea of comparable unending rants in judiciary, and at But we should also ask what response to decisions handed down by our the Constitution requires and highest courts, particularly where provisions least equally, if not whether it should be amended. of the state or federal constitutions are applied more importantly, And if the case involves statu- to the actions of the other branches in a man- tory interpretation, whether ner perceived to place limits on their actions, the public’s the Legislature should respond routinely described for public consumption as with new legislation. “the will of the people.” confidence in our And while it is equally clear Undeniably, tension between the three system of justice. that every one of us has the independent branches of government has First Amendment right to be a existed since our country was formed. Enlight- demagogue and to make irre- ened by their own common experience, the founders deliberately antici- sponsible criticism, threats to remove judg- pated with more than a mere modicum of forethought, the need for es from office or otherwise attempt to restraint on authority, mindful of the dangers intimidate them in an effort to influence posed by allowing absolute power to reside in their decisions is incompatible with the the hands of any one person or group. rule of law and our sworn oath as lawyers, as well as that of public officials, to sup- When John Adams’ vice president, Thomas port and defend the Constitution of the Jefferson, a Republican, was elected president in United States and the Constitution of the 1800, not a single Republican held a federal state of Oklahoma. Judges have a duty to judgeship. President Adams and his party, the enforce those very constitutional provi- Federalists, had stacked the bench with mem- sions to protect the rights of minorities, bers of their own party. That tension ultimately whether political, racial, ethnic, religious led to the decision in Marbury v. Madison three or otherwise, and while legislators and years later — fixing the power of the courts to executive officers may base their decisions declare actions of the executive and legislative on focus groups and opinion polls, judges branches unconstitutional — and thereby hold- may not. ing them accountable. I encourage each of you to remain But to all appearances, this historical tension vigilant to ensure that we continue to President Poarch appears to be escalating at an unprecedented promote the rule of law in our courts in practices in Norman. pace to a disrespectful level of outright hostility Oklahoma — free of political threats [email protected] and malevolence, fueled by politics. Not with- and intimidation. 405-329-6600 out consequence for everyone. The increasing

1604 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Associa- tion. All rights reserved. Copyright© 2015 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or Volume 86 u No. 21 u Aug. 15, 2015 staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or JOURNAL STAFF BOARD OF EDITORS implied by publication. Advertisers are solely responsible for the content of their ads, and JOHN MORRIS WILLIAMS, MELISSA DELACERDA, the OBA reserves the right to edit or reject Editor-in-Chief Stillwater, Chair any advertising copy for any reason. [email protected] LUKE ADAMS, Clinton Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of CAROL A. MANNING, Editor DIETMAR K. CAUDLE, Lawton Editors. Information about submissions can [email protected] be found at www.okbar.org. RENÉE DEMOSS, Tulsa LORI RASMUSSEN, AMANDA GRANT, Spiro BAR Center Staff Assistant Editor John Morris Williams, Executive Director; [email protected] ERIN MEANS, Moore Gina L. Hendryx, General Counsel; Joe Balkenbush, Ethics Counsel; Jim Calloway, EMILY BUCHANAN, SHANNON L. PRESCOTT, Director of Management Assistance Program; Advertising Manager Okmulgee Craig D. Combs, Director of Administration; [email protected] MARK RAMSEY, Claremore Susan Damron Krug, Director of Educational Programs; Beverly Petry Lewis, Administrator MACKENZIE MCDANIEL, LESLIE TAYLOR, Ada MCLE Commission; Carol A. Manning, Director Communications Specialist of Communications; Robbin Watson, Director [email protected] JUDGE ALLEN J. WELCH, of Information Technology; Jane McConnell, Oklahoma City Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, OFFICERS & Debbie Maddox, Katherine Ogden, Steve Sullins, Assistant General Counsels BOARD OF GOVERNORS Manni Arzola, Gary Berger, Debbie Brink, DAVID A. POARCH JR., President, Norman; Laura Brown, Emily Buchanan, Tanner GLENN A. DEVOLL, Vice President, Okla- Condley, Nickie Day, Ben Douglas, homa City; GARVIN ISAACS JR., President-Elect, Oklahoma Dieadra Florence, Johnny Marie Floyd, City; RENÉE DEMOSS, Immediate Past President, Tulsa; Matt Gayle, Marley Harris, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, ROBERT D. GIFFORD II, Oklahoma City; JAMES R. GOTWALS, Durrel Lattimore, Mackenzie McDaniel, Tulsa; JAMES R. HICKS, Tulsa; DOUGLAS L. JACKSON, Enid; Renee Montgomery, Sharon Orth, Lori JOHN W. KINSLOW, Lawton; RICKEY J. KNIGHTON II, Rasmussen, Wanda F. Reece, Tracy Sanders, Norman; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Mark Schneidewent, Jan Thompson, Oklahoma City; KEVIN T. SAIN, Idabel; RICHARD STEVENS, Krystal Willis & Roberta Yarbrough Norman; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Oklahoma Bar Association 405-416-7000 Miami; LEANNE MCGILL, Edmond, Chairperson, OBA Young Toll Free 800-522-8065 Lawyers Division FAX 405-416-7001 Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published three Ethics Counsel 405-416-7055 times a month in January, February, March, April, May, August, General Counsel 405-416-7007 September, October November and December and bimonthly in Law-related Education 405-416-7005 June and July by the Oklahoma Bar Association, 1901 N. Lincoln Lawyers Helping Lawyers 800-364-7886 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage Mgmt. Assistance Program 405-416-7008 paid at Oklahoma City, Okla. Mandatory CLE 405-416-7009 OBJ & Communications 405-416-7004 Subscriptions $60 per year except for law students registered with Board of Bar Examiners 405-416-7075 the OBA and senior members who may subscribe for $25; all active members included in dues. Single copies: $3 Oklahoma Bar Foundation 405-416-7070 Postmaster Send address changes to the Oklahoma Bar Association, www.okbar.org P.O. Box 53036, Oklahoma City, OK 73152-3036.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1605 1606 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE

The What, Why and How of Search Engine Optimization (SEO) By Jared K. Nelson

ou decided to open a new law office. You may have left a firm and taken an established client Ybase with you. You may have left a firm in order to develop your own book of business. You may have left a public office or in-house position with an organizational client and now need to capture private clients in the marketplace. You may have been admitted to the bar and now wish to launch your career from ground zero on your own terms. Or you may be entering or returning to private practice from a previous occupation.

Whatever the facts and circumstances of WHAT IS SEARCH ENGINE your new law office, you need clients (i.e., pay- OPTIMIZATION (SEO)? ing customers) walking through your door, Searching Oklahoma law reviews and jour- calling your office, emailing your inbox or oth- nals, including the Oklahoma Bar Journal, for erwise soliciting your services and assistance. references to “search engine optimization” In order to do so, former, current and pro- revealed that only one article has mentioned spective clients alike need to be able to find the topic, so it would not be surprising if the you. Whether they have old contact informa- term were entirely unfamiliar, or only vaguely tion from previous dealings with you or cur- familiar, to you.2 Even the American Bar Associ- rent contact information from colleagues, ation, with its national reach, has only published business cards, social media or marketing one article providing guidance to legal practitio- activities, your clients in all likelihood want to ners on this modern marketing concept.3 “look you up” before reaching out to you. In simple terms, search engine optimization And the first place they are likely going to 1 (SEO) is “the process of maximizing the num- look is Google, Bing or Yahoo. ber of visitors to a particular website by ensur- The question that remains is: How do you ing that the site appears high on the list of make sure you show up in clients’ search results returned by a search engine.”4 More results? specifically, SEO seeks to enhance a website’s ranking in a “search engine’s unpaid results — often referred to as ‘natural,’ ‘organic’ or ‘earned’ results.”5

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1607 All of us regularly use search engines and This final bucket is where SEO provides its rely on the results they provide to us. Search value and return on investment. engines are the tools that connect us with — and help us navigate — the one billion web- A recent study using data collected in July sites that are now on the Internet.6 Your lunch 2014 demonstrated that the top spot in the plans may depend on the results of your search unpaid results portion of results lists generated for a new deli or for the menu and phone num- by Google received 31.24 percent of click- ber of your favorite takeout grill, and your through traffic. Results in the second spot expectation is that your search engine of choice received 14.04 percent of click-through traffic. will quickly retrieve the information that is By the fifth spot, the percentage of click-through most relevant to you. traffic dropped to 5.50 percent, and spots six thru 10 combined for only 3.73 percent. Websites The success and popularity of a particular that Google relegated to the second page of search engine depends on its ability to produce results lists generated click-through traffic for the most relevant results for its users, so each only 3.99 percent of user searches.10 search engine has developed a set of ranking algorithms that seek to cull the useful from the If you are going to have an online presence useless.7 and you want clients to find and use your website, then you need to ensure that you consis- Ultimately, a search engine’s goal is to pro- tently land within the first five spots of relevant vide users with a positive customer experience. search results. This will give you a 67.6 percent In this case, a good experience would refer to chance of being selected by the search user. high quality helpful content that links as close- Otherwise, you will not be noticed, much less ly as possible with what the user was looking sought out, by clients. for when she initiated the search.8 A Forbes.com contributor and SEO provider SEO is businesses’ response to search engine put it this way: algorithms. In order to rank at or near the top of the “organic” (i.e., nonpaid) search results, a Every small business should have a basic business must tailor its website to meet as knowledge of search engine optimization. many ranking criteria as possible.9 SEO is the In fact, you should almost be exhausted by process by which a business conforms its web- the term “SEO” at this point . . . . . In our site content to the standards and recommenda- web-facing world, the (already) dominant tions of search engines in order to generate search engines are becoming the corner- increased internet traffic and enhanced visibil- stone of the Internet. Standard procedure ity for the business. for individuals looking for information is 11 WHY IS SEO IMPORTANT? to search first. When you enter your name in the search bar SEO and the web traffic it captures is impor- of your internet browser, where do you show tant, regardless or your practice area, business up in the results list? What about when you model, marketing strategy or even the maturi- search for your law office? Or what about ty of your client base. No matter who you are, when you search for your practice area? clients will try — and expect — to find you using a search engine. SEO enables you to Depending on the search provider and the make sure they find you. level of paid advertising relating to your search, you may observe three general categories of HOW DO YOU IMPLEMENT SEO? results in your internet browser. First, there One of the conundrums presented by SEO is may be paid, sponsored or premium results, all too familiar to those opening a new law which generally appear at the top of the list office: Do you do it yourself, thereby saving and include some indicator or enhancement money, or do you outsource it to an expert, that makes them stand out from the other thereby saving time? The answer depends on results. Second, there may be graphic ads that the extent to which you want to harness SEO to resemble what you see in newspaper columns improve your rankings and drive traffic to and other print media. Third, the search engine your website. will list actual, unpaid, “organic” results, which the search engine generated solely based on You can likely implement some SEO basics rankings derived from proprietary algorithms. on your own, provided you are willing to

1608 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 invest some personal time and effort to the new visitors; avoid reusing or duplicating cause. content that adds little value for users. Quality Content 4) Create content that addresses the needs of visitors, rather than focusing on driving For example, the most impactful SEO strate- search engine traffic; a website that is use- gy is to publish quality content that clients find ful to visitors and accessible to search useful. The Search Engine Optimization Starter engines will naturally achieve higher Guide published by Google (SEO Starter rankings.17 Guide) instructs webmasters that “[c]reating compelling and useful content will likely influ- Link Building ence your website more than any of the other Another aspect of SEO available to do-it-your- factors” discussed in the SEO Starter Guide.12 selfers is the process of developing a network of Evolving search engine algorithms are plac- links to your website that lend credibility and ing increasingly greater emphasis on quality, authority to your content. authoritative content.13 Your content strategy Search engines analyze, in effect, how your may (and should) incorporate a variety of website is regarded on the Internet. If high online media formats, including web pages, ranking websites link to and direct traffic to blog posts, guest posts, social media updates, your website, search engines will recognize articles, e-books, whitepapers, reports, pre- this and increase your ranking in their algo- sentations, videos, pictures, infographics and rithms. These inbound links also serve to intro- animations.14 duce external readers, who otherwise might Regardless of format, you should always not find you, to your online content.18 develop your content to address identifiable You can cultivate these links in countless client preferences and business objectives.15 ways; however, the best links are those that Brett Relander, a contributor for Entrepeneur. arise organically. If you create newsworthy com, provides these guidelines for ensuring content, other sites will naturally link to and that your content is timely, relevant and useful promote your content.19 (i.e., authoritative): But you have to start somewhere, and a logi- 1) Be knowledgeable and passionate about cal place to jumpstart the link-building process your topic. Take the time to conduct thor- is by placing a link to your website on your ough research. LinkedIn, Facebook and other social media 2) Be original. Whether it is producing origi- profiles.20 These links seed your professional nal research or taking a different perspec- network by, first, making it easy for others to tive, make a point of bringing something click on and follow your link and, second, pro- new to the table. viding an opportunity for others to link to your website. Also, as you create new content (re- 3) Focus on well-written content. Take the member, your content should be timely, origi- time to produce carefully crafted content. nal and informative) you can post updates to 4) Share your content with targeted commu- your social media profiles to generate recur- nities. Remember, social signals are often ring traffic to your website and potentially earn a vital source for determining authority.16 additional inbound links to your website. Google provides the following tips in the SEO Legal directories are another prime opportu- Starter Guide: nity to start getting your name and website introduced to the World Wide Web. There are 1) Include well-written text that is easy to an abundance of directories, most of which read and understand. provide free listings for your basic information 2) Organize your content topically, breaking (with paid options for premium listings and up information into logical chunks or services). The top five online legal directories divisions that help users find the content in the U.S. are: 1) FindLaw.com; 2) Martindale. they want. com; 3) Nolo.com; 4) Justia.com; and 5) Avvo. com.21 Search engines consider these directories 3) Create fresh, unique content that keeps to have the most “authority,” so you can existing visitors coming back and attracts

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1609 always expect their links to dominate the top of be a fool’s errand, for example, for you to try to search engine results pages. compete for top billing in a search for “Supreme Court.” You would have to compete with the Finally, pursue opportunities to lend your likes of the Supreme Court of the United States, expertise to others by providing content for Wikipedia (the most authoritative website on their websites, blogs and other online media the internet), The New York Times, The Washing- outlets. By appearing in other online forums, ton Post and SCOTUSblog.24 you can promote your services and business in front of a new audience while earning a back- Identifying the right keywords for you and link to information residing on your website. your practice requires understanding how ADVANCED CONCEPTS search engines work, harnessing various tools that provide metrics on the popularity, com- If you are like most lawyers, including petitiveness and relatedness of keywords, and myself, the SEO strategies above are well applying strategies to leverage local and niche within, or at least in the vicinity of, your tech- search behaviors. This complexity alone neces- nological comfort zone. The concepts and tasks sitates employing the skills and experience of above largely relate to two things we deal with an SEO consultant. daily: words and people. But the complexity does not However, there are far more end there. After identifying possibilities in the realm of SEO and strategically selecting a than what resides within our slate of keywords for your SEO skills and capabilities as law- A central piece campaign, the keywords must yers. For the following SEO be strategically placed and strategies, odds are that you of the SEO puzzle used throughout your on- and will need to find and engage the involves identifying, off-site content. This requires services of an expert in the field. incorporating keywords into First, all content on your web- researching, selecting heading tags, title tags, alt tags, site and elsewhere on the Inter- and using the meta tags, URL structures, etc.25 net should revolve around a set If this list is Greek to you, then of “keywords” that are highly right “keywords” you have no business trying to relevant to your practice, and, rollout a full SEO package on perhaps more difficult, to your throughout your online your own. clients’ perception and under- portfolio. Even if you understand the standing of your practice. Cli- technical aspects of keyword ents are expecting the search placement, you must still con- engine to produce results that sider the evolving art of satis- are relevant to them based on the words used fying search engine crawlers. Concepts like by them, not the words that would have been keyword stuffing, density, proximity distribu- carefully selected and used by their lawyers. tion, siloing and contextual search all must be A central piece of the SEO puzzle involves considered. Be honest with yourself: Do you identifying, researching, selecting and using have the expertise, time or energy to fully the right “keywords” throughout your online develop and implement an effective keyword portfolio. This process is referred to as key- optimization strategy? word optimization, and it is an enduring tenet Returning to what users see when they inter- of SEO. “The basic premise of keyword optimi- act with your website, a comprehensive SEO zation is simple: Discover the search words initiative will consider the aesthetics of your that potential customers are using to find prod- website. How does your website look? Is it ucts or services like yours, and then build your user-friendly? Is the layout well organized and Web content around those words.”22 This pleasing or cluttered and distracting? With the sounds simple enough, but the devil is in the advent of Google’s so-called “Mobilegeddon” details. algorithm update, which went live April 21, You want to focus on keywords that are 2015, it is now imperative that your website be “popular” but not necessarily “competitive.” mobile device and mobile user friendly.26 A Otherwise, the bar for top placement in search website design professional, working with results may exceed your SEO budget.23 It would

1610 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 your SEO consultant, will be in the best posi- 13. Brett Relander, “Why Authoritative Content is More Important Than SEO,” Entrepreneur, www.entrepreneur.com/article/241258 (last tion to address these concerns. visited May 18, 2015). 14. John Rampton and Jayson DeMers, “Content and Inbound CONCLUSION Marketing,” Search Engine Journal, www.searchenginejournal.com/ seo-guide/content-inbound-marketing/ (last visited May 18, 2015). Whether you keep your SEO program in- 15. John Rampton and Jayson DeMers, “Content and Inbound Marketing,” Search Engine Journal, www.searchenginejournal.com/ house or outsource it to a consultant, your SEO seo-guide/content-inbound-marketing/ (last visited May 18, 2015). strategy needs to include content develop- 16. Brett Relander, “Why Authoritative Content is More Important ment, link building and social engagement. Than SEO,” Entrepreneur, www.entrepreneur.com/article/241258 (last visited May 18, 2015). “Content strategy, inbound links and social 17. “Search Engine Optimization Guide,” Google Inc., available at media strategy are the three key elements to http://goo.gl/OhGkxz (last visited May 19, 2015). 18. Jayson DeMers, “The Three Pillars of SEO in 2014,” Forbes, building a strong, successful SEO campaign, www.forbes.com/sites/jaysondemers/2014/01/28/the-three-pillars- regardless of the industry.”27 of-seo-in-2014/ (last visited May 18, 2015). 19. Rand Fishkin and Moz Staff, “Growing Popularity and Links,” The legal industry is known for being resis- Moz, https://moz.com/beginners-guide-to-seo/growing-popularity- and-links (last visited May 20, 2015). tant to change, and information technology is 20. LinkedIn is a registered trademark of LinkedIn Corporation. constantly changing. This is one scenario in “Facebook” is a registered trademark of Facebook Inc. 21. Data reported by SEOmoz Inc. on May 20, 2015, for keywords which change can literally wipe you off the “lawyer directory.” Full report contents on file with author. map if you do not keep pace. No matter how 22. Inc. Staff, “How to Optimize your Site for Search,” Inc., www. inc.com/magazine/20100701/how-to-optimize-your-site-for-search. skilled, talented, respected or established you html (last visited May 18, 2015). are, clients will have a difficult time finding 23. Inc. Staff, “How to Optimize your Site for Search,” Inc., www. you if search engines cannot find you. inc.com/magazine/20100701/how-to-optimize-your-site-for-search. html (last visited May 18, 2015). 24. Data reported by SEOmoz Inc. on May 20, 2015, for keywords 1. As reported by comScore, the share of search queries handled by “supreme court.” Full report contents on file with author. leading U.S. search engine providers as of January 2015 was: Google, 25. Rand Fishkin and Moz Staff, “The Basics of Search Engine 64.4 percent; Microsoft, 19.7 percent; Yahoo, 13 percent; and others, less Design & Development,” Moz, https://moz.com/beginners-guide-to- than 2 percent each. See www.statista.com/statistics/267161/market- seo/basics-of-search-engine-friendly-design-and-development (last share-of-search-engines-in-the-united-states/ (last visited May 20, visited May 20, 2015). 2015). Google is a registered trademark of Google Inc. Bing is a regis- 26. Google Webmaster Central Blog, “Finding more mobile-friend- tered trademark of Microsoft Corporation. Yahoo! is a registered trade- ly search results,” Blogger, http://googlewebmastercentral.blogspot. mark of Yahoo! Inc. com/2015/02/finding-more-mobile-friendly-search.html (last visited 2. Don G. Pope, “Changing the Face of Law Office Marketing,” May 20, 2015). Oklahoma Bar Journal, Vol. 84, No. 8 (Mar. 16, 2013). 27. Jayson DeMers, “The Three Pillars of SEO in 2014,” Forbes, 3. John M. Kruger, “Get Found! Search Engine Optimization www.forbes.com/sites/jaysondemers/2014/01/28/the-three-pillars- Demystified,” GP Solo, Vol. 29, No. 3 (May/June 2012). of-seo-in-2014/ (last visited May 18, 2015). 4. Search engine optimization, Oxford Dictionaries, www.oxford dictionaries.com/us/definition/american_english/search-engine- optimization (last visited May 18, 2015). About The Author 5. Search engine optimization, Wikipedia, The Free Encyclopedia, https://goo.gl/PVYqFX (last visited May 18, 2015). 6. Total number of websites, Internet Live Stats, www. Jared Nelson is the founder of internetlivestats.com/total-number-of-websites/ (last visited May 18, Tulsa-based Blackstone Legal 2015). 7. Search engine optimization, Wikipedia, The Free Encyclopedia, Advisors PLP. Mr. Nelson’s expe- https://goo.gl/PVYqFX (last visited May 18, 2015). rience is primarily in healthcare 8. John Rampton and Jayson DeMers, “The Changing SEO Land- scape,” Search Engine Journal, www.searchenginejournal.com/seo- law, and his specific practice guide/changing-seo-landscape/ (last visited May 18, 2015). areas include business forma- 9. Inc. Staff, “How to Optimize your Site for Search,” Inc., www.inc. tions, corporate governance, com/magazine/20100701/how-to-optimize-your-site-for-search.html (last visited May 18, 2015). LLCs and partnerships, regula- 10. Caphyon, “Google Organic CTR Study,” Advanced Web Ranking, tory compliance, various business and commercial www.advancedwebranking.com/google-ctr-study-2014.html (last visited May 20, 2015). transactions, healthcare transactions, select securities 11. Newtek, “SEO Basics for Small Business Owners,” Forbes, law issues and mergers and acquisitions. He is a 2009 www.forbes.com/sites/thesba/2014/10/30/seo-basics-for-small- business-owners/ (last visited May 18, 2015). graduate of the TU College of Law. He earned a Bach- 12. “Search Engine Optimization Guide,” Google Inc., available at elor of Science in geography from Texas A&M Uni- http://goo.gl/OhGkxz (last visited May 19, 2015). versity in 2005.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1611 1612 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE

Ethical Considerations When Opening A Law Practice By Joseph P. Balkenbush

here are a number of ethical issues which must be considered when opening your law practice. The most practical Tway to begin is to reread the Rules of Professional Conduct (RPC). There are a total of 57 rules. As is often the case when reading statutes, some language can be difficult to comprehend. Each rule has a comment section which provides explanatory notes with headings. Each rule is important and as a practicing attorney, you should be familiar with all of them. This article will deal with the more “high profile” rules. The rules are codified in Title 5, Oklahoma Statutes, Appendix 3-A. They can be found at http://goo.gl/EKG0GB.

PREAMBLE Provision 5. A lawyer’s conduct should con- form to the requirements of the law, both in The first statutory section of Appendix 3-A is professional service to clients and in the law- titled “Preamble: A Lawyer’s Responsibilities.” yer’s business and personal affairs. A lawyer Since you’re going to be reading the RPC, you should use the law’s procedures only for legiti- might as well start with the preamble! You will mate purposes and not to harass or intimidate be reminded of the “lofty aspirations” for others. A lawyer should demonstrate respect which we all strive as members of this honor- for the legal system and for those who serve it, able profession. Following are some sections including judges, other lawyers and public which stood out when I recently reread the officials. preamble: Provision 9. These principles include the Provision 1. A lawyer, as a member of the lawyer’s obligation to protect and pursue a cli- legal profession, is a representative of clients, ent’s legitimate interests, within the bounds of an officer of the legal system and a public citi- the law, while maintaining a professional, zen having special responsibility for the quali- courteous and civil attitude toward all persons ty of justice. involved in the legal system. Provision 2. As a representative of clients, a I encourage you to take a few minutes to read lawyer performs various functions. We advise the preamble, perhaps for the first time since our clients and advocate and negotiate on their behalf.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1613 you prepared to take the bar exam, and remind • to prevent reasonably certain death or sub- yourself of why you became a lawyer. stantial bodily harm, CLIENT-LAWYER RELATIONSHIP • to prevent a client from committing a crime or a fraud that is reasonably certain There are 18 subsections to the RPC Rule 1. Your detailed knowledge of each is important, to result in substantial injury to financial but the subsections which follow are some of interests or property of another, which you should be most aware: • to prevent, mitigate or rectify substantial 1.1 Competence. You do not have to, and injury to the financial interest or property should not, take every case that comes into of another that is reasonably certain to your office. Be sure you have the requisite result or has resulted from the client’s knowledge of the law relevant to the case and commission of a crime or fraud …. Pro- the necessary level of skill to represent the cli- vided that the lawyer has made reasonable ent. If you do not yet possess the necessary efforts to have the client rectify such crimi- knowledge and skills to competently represent nal or fraudulent acts, the client, either refer the client to another • to secure legal advice about the lawyer’s attorney or decline to take the case. compliance with these rules, 1.3 Diligence. It is essential that you act with • to establish a claim or defense on behalf of reasonable diligence and promptness in repre- the lawyer in a controversy between the senting your client. That means you should lawyer and the client and pursue the matter on behalf of your client and take the necessary lawful and ethical measures • as permitted or required to comply with to resolve the case. Diligent prosecution/ these rules, other laws or court order. Per defense of a client’s case will ensure compli- this exception, you may disclose otherwise ance with these rules. confidential information when ordered to do so by the court. 1.4 Communication. Promptly return phone calls from clients. Maintain a double or triple 1.7, 1.8 and 1.9 These sections deal with the redundant docketing system regarding rele- subject of a potential conflicts of interest vant dates. There are few worse feelings than between current clients and your duty to for- getting a call from a judge’s office asking why mer clients. In general, the majority of conflicts you aren’t there. Promptly return calls from of interest between current clients or former opposing counsel and/or respond to all corre- clients can be waived if the current or former spondence (whether by letter, text or email). client gives informed consent, confirmed in Again, promptness in all communication with writing. If a current or former client will not a client, opposing counsel and third parties waive the conflict, then representation must be will ensure your compliance with this rule. declined or terminated. 1.5 Fees. While the RPC do not require a 1.15 Safekeeping Property. This is the sec- written fee agreement with your client, having tion that deals with the necessity of a lawyer one will set the tone for the representation. A maintaining a trust account. Detailed familiar- well drafted fee agreement will concisely set ity with this rule is essential to your practice. out the scope of representation and how you The following are important excerpts from a will be paid. The necessity of a written fee previously published article regarding trust agreement cannot be overemphasized. A writ- accounts.1 ten contract obviates the need for any explanation of the agreement between attorney and • What does IOLTA stand for? client should a dispute arise. Pro forma fee “Interest on Lawyers Trust Accounts.” agreements are available on the OBA website • Which banks offer IOLTA trust accounts? and are easily accessible on the Internet. Ask your own bank first. If they do not offer 1.6 Confidentiality of Information. This is these accounts, call the Oklahoma Bar Foun- one of the most, if not the most, important dation (OBF) at 405-416-7070 and ask them RPC. Client confidentiality must be protected to recommend one in your area. If your at all times. There are rare exceptions to disclo- office is in a town that does not have a par- sure of information obtained from your client. ticipating bank or the bank routinely charg- They are: es more in fees than any interest generated,

1614 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 You should give notice to every party that has an interest in the money and pay out Generally, a flat fee should be any undisputed amounts. Then, hold the disputed amount until one of two things treated as a retainer. It should be happens, 1) you reach an agreement among deposited into the trust account all interested parties, or 2) a court or arbi- trator directs you how to distribute the until the work is performed. It may money. You should act promptly to resolve the dispute and may use a mediator, arbi- be withdrawn in increments, but trator or file a motion or action with the work must be done to justify the court to make the determination. Be sure to provide a full accounting of the monies withdrawal of that portion. to the client and/or a third party for whom you held funds. • May a lawyer take “advances” on money or it is otherwise not feasible, you may be from the trust account? excused from the duty to have a trust No, because the money has not been account. You should consult with the OBF earned. A lawyer may not take money in making this determination. unless it has been earned. Otherwise, it is arguably simple conversion at best and • What money goes into the trust account? misappropriation (theft) at worst. Unearned legal fees, unincurred expenses and third-party monies in connection with • How should a “flat” fee be treated? the representation. This typically means, Generally, a flat fee should be treated as a for example, retainers (until the monies are retainer. It should be deposited into the earned), flat fees (until the monies are trust account until the work is performed. earned), filing fees, deposition and expert It may be withdrawn in increments, but witness expenses. Settlement proceeds on work must be done to justify the with- a check to you and your client(s) or others drawal of that portion. Cover the payment may also go into the trust account for dis- schedule in your fee agreement. It does not tribution. need to be tied to hours worked, but it must be reasonable. This procedure is • Must every lawyer have an IOLTA trust often misunderstood. It all goes back to the account? fact that fees must be earned to be taken. If No. Only lawyers who hold client or third- no work has been done, then the fees have party funds regarding a representation not been earned. Only money that has must have trust accounts. been earned should be deposited into your • May a lawyer assign certain tasks for operating account. trust accounting to nonlawyers? • When a lawyer mistakenly withdraws Yes, but the lawyer must educate the oth- money from the trust account prior to the ers, supervise the work and monitor the fees being earned, what should s/he do? account. Ultimate responsibility for the Replace the money immediately and make trust account is a nondelegable duty. accounting entries on both ends of the • What is the best short summary of a law- transaction that document what occurred yer’s principal duties regarding the trust in the event you are later asked to explain. account? • What should a lawyer do in the event a At any time, you should be able to show client disappears or there is an amount in what amounts are in the account for each the trust account of uncertain ownership? client. First, determine whether the Oklahoma • What should I do if I hold money in my Unclaimed Property Fund is entitled to the trust account and the client and/or third money. The Unclaimed Property Division party (with a legitimate interest in the may be contacted at 405-521-4273 or money) disagree as to how it should be [email protected]. If not, the paid out? money may be paid to the Oklahoma Bar Foundation. Include a cover letter that

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1615 explains which client the money is attrib- RPC Rule 5 contains seven subsections deal- utable to, a last known address and your ing with law firms, associations of lawyers, efforts to contact them. The OBF will hold responsibility for nonlawyer assistants and the the money. If that client ever reappears, the unauthorized practice of law. In short, senior OBF will refund the principal amount lawyers are responsible for the lawyers work- originally deposited and you may return it ing for/with them. A lawyer is also responsible to the client. for their legal assistant, secretary and receptionist. It is the attorney’s responsibility to • Is any particular accounting program ensure that each of their employees is aware of required? the restrictions and limitations upon what they No. Anything from a loose-leaf notebook can and should say or do. to a fancy computer program can be acceptable so long as the funds are prop- PUBLIC SERVICE erly accounted for. However, there are a Rule 6 and its five subsections encourage you number of software programs that will to give back to the legal profession. The legal ensure you are in compliance with these system is, and will become, what you make it. rules. The “lofty aspirations” set out in the preamble • How long must a lawyer hold records to the Rules of Professional Conduct are stat- related to account funds (and other prop- utes and it is our responsibility to comply with erty of the client)? them. You will not be disciplined for not com- At least five years after termination of rep- plying with Rule 6, but you will be a better resentation. Generally, all financial records dad, mom, brother, sister, etc. and subsequent- should be kept, including, but not neces- ly lawyer, if you do! sarily limited to: the fee agreement, bank INFORMATION ABOUT LEGAL SERVICES statements, billing records (e.g. time sheets), billing statements, payment Rule 7 and its subsections deal with commu- records, deposit and withdrawal records, nicating with the public regarding your ser- trust account “ledgers” and reconcilia- vices, advertising and prohibit direct contact tions, settlement statements and account- with prospective clients. Bottom line of these ings and related correspondence. You rules is to be honest and do not mislead anyone should be able to reconstruct, account and regarding your qualifications and experience. justify for all amounts that flow through MAINTAINING THE INTEGRITY OF THE your account(s). PROFESSION ADVOCATE Rule 8 and its subsections allow the legal RPC Rule 3 provides the boundaries regard- profession to continue to be self-governing. ing advocacy on behalf of a client. Our compliance with these rules will allow us to continue to operate independently without 3.1 Meritorious Claims and Contentions. “A government regulation. lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless 8.3 Reporting Professional Misconduct. Per there is a basis in law and fact for doing so this rule, we are obligated to report another that is not frivolous ….” This rule means lawyer who has committed a violation of the exactly what it says. An attorney may not RPC that raises a substantial question as to the prosecute a case just because a client wants lawyer’s honesty, trustworthiness or fitness as him/her to do so. a lawyer. The comments to this rule and case law regarding it require reporting if you are 3.3 Candor Toward the Tribunal. The char- sure (certain) a lawyer or a judge has violated acteristics of honor and integrity are very this rule. It does not mean they might have or important for a lawyer to possess. Misleading could have violated the rule. I am reminded of a judge or opposing counsel by making untrue the quote from the movie starring Robert De statements, or even “coloring” the evidence Niro. In the movie, his character stated “if there can ruin your reputation. Don’t do it. You will is doubt, then there is no doubt.” It is your be practicing law for a long time. Judges have obligation to report someone who should be a long memory. So does opposing counsel. reported. LAW FIRMS AND ASSOCIATIONS

1616 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 8.4 Misconduct. This subsection of Rule 8 1. Oklahoma Bar Journal, Oct. 6, 2012, Volume 83, No. 26. “Trust Accounting 101” by OBA Ethics Counsel Travis Pickens. provides the definition of this “misconduct.” When you are considering the need/obligation to report someone, refer to this subsection to About The Author ensure that there has indeed been misconduct. Joe Balkenbush is OBA ethics In conclusion, your familiarity and compli- counsel. Have an ethics ques- ance with the Rules of Professional Conduct tion? It’s a member benefit and will help ensure that you are not the subject of all inquiries are confidential. a complaint or grievance from a client, third- Contact him at [email protected] party or other attorney. Your focus should be or 405-416-7055; 800-522-8065. on being the best that you can be in all aspects of your life, including but not limited to your legal career!

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Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1617 1618 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE Insurance for Lawyers and Law Practices By Jennifer Beale here’s a lot of ground to cover when opening and running a law firm, and insurance and the costs related thereto are Toften an afterthought or even overlooked altogether. This article will cover a number of insurance policies available to businesses and individuals to transfer risk for a variety of exposures. Everyone has their own risk tolerance, so some of the insurance policies mentioned may be of little interest or concern to the very tolerant or to the very wealthy who can self-insure. In addition to the list, I’ve included tips to help you do a self-evaluation or discussion with your agent to help determine whether updates or additional policies might be appropriate.

PART 1: PERSONAL recovery and rehabilitation period, as well as irrecoverable cognitive impairments. Disability Insurance Tips Most people buy life insurance to replace their income when they die, before they buy • Make sure you’ve elected options available disability to replace their income while they’re to you, such as future purchase (allows alive. In fact, most people insure items they you to increase your monthly benefit at own (home, car, jewelry, business, etc) without future dates without providing evidence of insuring the paychecks that pay for those insurability) and residual or partial dis- items. An individual disability policy is an ability (pays a portion of the monthly ben- affordable way to ensure that, should you be efit if you are only able to work part-time unable to work due to an illness or accident, and suffering a loss of income) and cost of you could still pay your bills and keep your living adjustments (benefit amount increas- home, car, insurance, etc. People who have es according to inflation index). advanced degrees, skills or certifications espe- • Make sure you know and understand your cially need to protect against a disability that policy’s definition of disability (some plans could keep them out of work for months or recognize your specialty, and others sim- even years. Attorneys often think that only ply refer to any gainful employment). The death could keep them away from work, but best definition of disability for profession- that is simply not true. There are many ill- als is an unqualified inability to perform nesses or accidents that result in a lengthy

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1619 the substantial and material duties of your also add riders to policies, such as long-term occupation (at time of disability). care benefits, to cover other areas of concern. • Maintain an individual policy even if your Tips employer provides coverage — in case you • Make sure your policies are up-to-date go out on your own or your employer can- with an appropriate beneficiary, and that cels the group plan, and also because many your family, business partner and/or individual policies won’t reduce benefits if estate/financial planner knows what poli- you are also eligible for or receiving Social cies you have, where you keep them, etc. Security or Workers’ Compensation disability benefits and the benefits are taxable • Evaluate the amounts and types of life if the premium is employer paid. insurance you have in place now, and take appropriate action. • Pay your disability premiums with personal, after-tax dollars — that way your • Life insurance is medically underwritten, monthly benefit won’t be taxable. so the younger and healthier you are when you obtain it, the better rate you are likely • O btain a policy when you are young and to receive. If you’ve quit smoking, lost healthy, because it is one of the most strin- weight or have otherwise become healthier gently underwritten insurance plans due to since you last purchased coverage, you the likelihood of illness-related disability. may want to see if you can qualify for a Life Insurance better rate now. Life insurance is probably the most versatile Health Insurance type of insurance, as it is useful for many rea- Effective Jan. 1, 2014, the Affordable Care Act sons in one’s personal and business affairs, and (ACA) included an individual mandate requir- it is available in many forms. Not only can you ing everyone to maintain minimum essential provide burial expenses and security for your coverage (MEC). If you don’t have MEC, you loved ones, but you can also use life insurance must claim a coverage exemption or pay a fee. policies to secure part of a business loan, pay For 2015, exemptions include but aren’t limited estate taxes, supplement your retirement to these: if the lowest-priced plan available to income, contribute to a charity or finance the you costs more than 8.05 percent of your succession of your business. household income, you don’t file a tax return because your income is below the level requir- Term life, while extremely affordable, is ing you file, you were uninsured for no more designed to meet short-term or temporary than two consecutive months of the year, you needs, such as when you have young children would have qualified for Medicaid if your state at home or lots of debt. It is an affordable way had expanded its program, you’re a member of to secure a large death benefit to leave your a federally recognized tribe or you qualify for a family financially secure in the event of your hardship exemption. In 2015 the penalty is the untimely death. Term insurance typically is higher of the flat fee penalty ($325 per adult renewable for a set term, such as 10, 15 or 20 and $162.50 per child under age 18, subject to a years, or to a specified age, such as 65, 70 or 75. maximum of $975) or the percentage penalty (2 Some plans also include return of premium percent of household income, subject to a feature if you don’t die. maximum equal to the national average pre- Permanent insurance is available as whole mium for a bronze plan). The fee increases in life, variable life, universal life or combinations 2016 to $695 per person and $347.50 per child thereof and is renewable for your entire life. or 2.5 percent of household income. Permanent policies usually include savings or Individual coverage is now guaranteed-issue investment features in addition to a death ben- and can only be purchased or changed during efit, as well as flexibility with premium pay- the annual open enrollment period (Nov. 1, ment. The cash value of a permanent life policy 2015 to Jan. 31, 2016), unless you qualify for a accumulates on a tax-deferred basis and you special enrollment period (SEP). Events that can borrow it as needed at relatively low rates. may qualify you for a SEP include getting mar- Borrowing against the cash value could result ried, having a baby or adopting, losing other in a reduced death benefit should you die coverage, moving to a new coverage area, before paying it back. In many cases, you can gaining citizenship or having a change in

1620 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 income or household status that affects eligibil- Medicare ity for premium tax credits. When you reach age 65, you become eligible While premiums can be expensive and the for Medicare, a health benefits program for penalty fee not terribly painful, self-insuring is seniors with many pieces, labeled confusingly a dangerous option, since a long-term illness enough by letters of the alphabet. Part A is hos- such as heart disease or cancer, or a serious pital coverage and is provided at no cost to a accident can require years of expensive treat- beneficiary. Part B includes outpatient cover- ments, specialist visits, surgeries and medica- age and doctors visits and there is a premium tions. Even if you have significant savings built charged by Medicare. Part C is known as the up, do you want to spend it on medical bills? If Medicare Advantage Plan, where you contract you spend it on medical bills, will you still with a private insurer who is paid directly by have enough for its intended use? There’s sim- the government. Part D is the Medicare drug ply no way to predict, plan for or avoid some coverage and you are required to purchase pri- emergencies or complications, such as break- vate insurance or face premium penalties. You ing a bone ($10,402) or developing appendicitis also have the opportunity to stay on your ($15,850). group health plan where you work, until such time as you retire. Tips Keep in mind that Medicare pays 80 percent • Be sure to stay in-network (don’t assume of the Medicare determined charges. You will your physician is doing this for you and need to purchase a supplement to pay the don’t assume the facility is in-network additional 20 percent plus Medicare deduct- because the physician is or vice versa) — ibles on Parts A and B. Make sure you pick a going outside your plan’s network can good stable company, as you will not be able to result in much higher out of pocket costs to change plans without providing evidence of you, even if you have met your deductible. insurability. • Consider a qualified high deductible health Tips and Talking Points: Special caution needs plan so you’ll be eligible to open a health to be taken to if you are on a group plan that savings account (HSA). An HSA is a tax- provides a health savings account (HSA). HSA advantaged account into which individu- rules state that if you have any other health als can annually contribute up to $3,350, or plan, including Medicare Part A, you will not $6,650 for families. Persons age 55 and be eligible to make any further contributions to older can make an additional $1,000 catch- your HSA. In addition high-earning members up contribution. Contributions are 100 per- will face the government surcharges for Parts B cent tax deductible from gross income and and D in the form of an income-related Medi- can be used for qualified medical, dental care adjustment (IRMA). and vision expenses, as well as qualified long-term care insurance, COBRA and When looking at a Medicare Advantage Plan, medicare premiums. you need to be aware that these plans may have limited physician and hospital networks • Know your plan — many health plans and many have gatekeepers that require a offer discounts for services you already use referral to a network specialist. such as vision, dental, weight loss, nutri- tion, alternative care, etc. Long-Term Care • Consider purchasing a separate travel Long-term care is increasingly a sign of our medical policy if you plan to travel outside times. Thanks to modern medicine, we are liv- of the country — this will provide assis- ing longer lives, and many of us can expect to tance with locating a provider, translation break the century mark. With that also comes services, medical evacuation, etc. the fact that a high percentage of those living longer will do so with a chronic illness which • For groups: Employer group plans are guar- will be become debilitating in some form, as anteed issue and might be an option even the aging process continues. Long-term care if you only have one employee. Typically, a insurance (LTCI) is designed to provide home minimum of 75 percent participation is care to help you manage illness at home and required, and the employer is expected to provides nursing home coverage, as necessary. contribute 50 percent or more to the Statistics prove that women are the caretakers, employee portion of the premium.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1621 Tips • Highly regarded and compensated professionals, such as attorneys, are especially at You can have a healthy risk for large claims. That risk is multiplied if you have teenage drivers, a pool or body and live many years pond, a boat, trampoline or a pet. Purchase an umbrella policy if you haven’t already, with Alzheimer’s, yet require and make sure it’s one like the OBA-spon- around-the-clock services. sored umbrella that includes excess uninsured/underinsured motorists’ coverage (most carriers do not offer this in Oklaho- ma). With 24 percent of Oklahoma drivers and many hours are lost for working women uninsured, the risk is substantial. who must quit their jobs or alter their sched- • Coverage for earthquake and flood dam- ules to take care of a sick parent or spouse. If age is not automatically included in home- you have parents who are in their 50s, have owners policies, so it must be added by this conversation with them now! endorsement or purchased separately. Everyone’s biggest fear is suffering from PART 2: BUSINESS some form of dementia or cognitive impair- ment. You can have a healthy body and live Business Overhead Expense many years with Alzheimer’s, yet require Business overhead expense (BOE) is a dis- around-the-clock services. None of us wants to ability contract that pays office overhead be a burden to our children or grandchildren expense, such as rent, utilities, employee (non- and LTCI relieves that concern. professional) salaries, health insurance, sup- Tip plies, professional dues, malpractice insurance and others. It is designed to keep your doors • Most professionals put off the purchase of open while you are recovering from an illness LTCI until their 60s and 70s when they or injury which prevents you from performing discover they may not have enough the duties of your occupation. Generally, these resources to cover this type of risk. By then polices have shorter waiting periods (30 days) it may be too late due to high premiums before benefits begin to accrue and shorter ben- and/or health issues that increase the cost efit periods, up to two years. This coverage is or prevent the purchase of coverage. The extremely valuable to a solo practitioner, part- best way to buy LTCI is to purchase it dur- nership or office sharing arrangement. Keep in ing your working years (45-55) and accel- mind, that unlike a disability income policy erate the premiums to fully pay the policy that pays you directly to protect your income, prior to retirement. Peace of mind is a great the BOE policy is a reimbursement policy only thing when you are in your 70s and 80s for overhead expenses and does not cover the and makes it easier to manage your retire- policyholder’s earnings. ment resources. You also avoid probable premium increases later in life. Business Owners Policy Home/Auto and Personal Umbrella A business owners policy (BOP) is a policy that combines commercial property and com- Review your homeowners policy if you mercial general liability insurance, along with haven’t in a while and make sure you’ve many other property and liability coverages remembered to advise your agent/carrier of either bundled into the package or offered as significant home improvements, such as a options. If you own your office building, you room addition, new pool, new structure or new would insure your building at its replacement purchases of firearms, furs, jewelry, antiques, cost in addition to your contents, or business fine art, etc you’ve made. Make sure your toys personal property (BPP). are covered (boats, motorcycles, four-wheelers, etc). Especially in a state like Oklahoma, where one’s business could be shut down for a period of time due to various weather issues, loss of business income and extra expense are key

1622 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 coverage provisions in this type of policy. The and office floors are clear of obstacles such extras you may see bundled into the package or as files, boxes, rugs or cords that may cause offered as options include coverage for sewer tripping. Have snowy or icy walkways and back-up and water damage, signs, accounts parking lots cleared and/or salted for trac- receivables, computers/media, valuable papers, tion, place mats inside doors so people can property in-transit, fine arts, employee dishon- wipe moisture from the bottoms of their esty and ERISA, employment practices liability, shoes to lessen risk of slipping on floors employee benefits liability, identity theft, busi- that can become slick when wet. ness income and extra expense and hired and nonowned auto liability. Directors and Officers Tips Private companies, including (maybe even especially?) family-owned businesses, have • Be sure to review your policy with your directors and officers (D&O) exposure. Where agent if you haven’t in a while, especially if do D&O suits come from? Shareholders could you’ve had changes in staff, revenues, equip- sue you for making poor business decisions or ment, amount of space leased, remodeled offic- not being profitable enough; your competitors es, etc. Know how replacement cost and coin- could sue you for making disparaging com- surance works with your policy and make sure ments about their services or copyright you are always insured at adequate limits. infringement; your customers, employees, • Consider increasing the limits or purchas- lenders, suppliers and regulatory agencies ing separate policies for some of the could also sue your company’s officers & “extras” mentioned above. directors. • Coverage for earthquakes and flood are Employment Practices Liability typically not included but can be added or issued as a separate policy. Employment practices liability (EPLI) policies protect employers from suits alleging dis- • Know what items you are responsible for crimination, sexual harassment, failure to make maintaining, repairing and replacing partner, wrongful termination and other according to your lease and make sure you employment-related claims. Think these types have adequate coverage for those items. of claims don’t occur here? In 2013, the EEOC Workers’ Compensation received 1,360 charges from Oklahomans and 1,294 charges in 2014. If you’re still skeptical If only I had a nickel for every time an attor- about insuring against an EPLI claim, keep in ney or law firm administrator has said, “I can’t mind that EPLI policies tend to provide non- believe we’re required to carry workers’ com- insurance benefits that could be very useful to pensation insurance… how could someone companies of all sizes, such as employee hand- possibly get hurt…” The fact is that workplace book audits, sample handbooks and employ- injuries do occur, and to protect both the ment-related forms, hotlines providing free employer and employee, Title 85 requires that access to employment lawyers, other human all companies with employees carry WC insurance unless they have qualified for self-insured resource training tools and risk management status or opted out using an approved benefit courses. The tools alone could cost hundreds to plan. In Oklahoma, partners, sole proprietors thousands of dollars, making the cost of the and LLC members or stockholders owning 10 policy well worth it. percent or more of the company’s stock are Crime automatically excluded from coverage, but can elect to be included. Workers’ Comp insurance Employee theft is a fast-growing crime in provides coverage for medical expenses as well America and could result in corporate bank- as compensation expenses for employees who ruptcy. Whether a rogue employee or partner is are injured while working. stealing from you or from your clients, you need to be aware of what coverage you do or Tip do not have for this event. Unfortunately, there • Don’t take this exposure lightly. Make sure are many different what-if scenarios that one your employees have ergonomic worksta- should run through to explore whether ade- tions and are properly trained to move quate coverage is included in your business boxes, carry heavy files, and that hallway owners or ERISA liability policies.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1623 Network Liability aka Data Breach Liability aka Cyber Liability INSURANCE FOR Cyber liability policies are fairly new and INDIVIDUALS coverage can differ quite a bit. You may be able to add some form of cyber liability coverage to your business owners or malpractice policy, COMMERCIAL but a standalone policy may be the best way to PROPERTY & LIABILITY ensure you have adequate limits and broad coverage that could include privacy breach (loss or inadvertent disclosure of confidential MANAGEMENT information of your clients or employees), pri- LIABILITY vacy breach notification expenses (including credit monitoring), public relations expenses, computer viruses or other types of damage to EMPLOYEE your network such as from hacking (first party BENEFITS covers your clients and third party extends to your clients’ clients), or theft of private information. If you have clients in multiple states, coverage for privacy breach notification expenses could prove extremely valuable, because the requirements differ from state to state — do you know what you’re required to do in the event of a breach in each state? COLLECTIVE YEARS OF Believe it or not, this list is not all-inclusive! Needless to say, there’s a lot to think about and INSURANCE keep up with. Take the time to be proactive about personal and business insurance deci- EXPERIENCE sions you make or need to make and work with reputable agents and companies who at your disposal! have your best interests in mind.

About The Author

Jennifer Beale, CIC is president of Beale Professional Ser- vices and a managing member of 3000 Insurance Group LLC. She is a graduate of the Univer- sity of Central Oklahoma, is a licensed insurance agent and holds a Certified Insurance Counselor designation. She is a graduate of Leader- ship Oklahoma City Class XXVIII and serves on the boards of the American Institute of Professional Asso- ciation Group Insurance Administrators, Impact Okla- homa, Consumer Credit Counseling Service of Central Oklahoma and Oklahoma Society of Association Exec- utives. She is a member of the Business Women’s Golf Evaluting risks, assessing needs and Association, Professional Insurance Marketing Associ- optimizing coverage can be ation and Executive Women’s Forum. challenging. Our professionals can help. Contact us today. 3000iG.com | 405.521.1600

1624 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 S I X T H A N N U A L C H I P S F O R C H I L D R E N C A S I N O N I G H T G A L A

Venetian Ball

On behalf of Oklahoma Lawyers for Children, we are delighted to invite you to Chips for Children 2015: Venetian October 30, 2015 Ball. 7:00 — Midnight Our annual gala is a special tradition at OLFC, raising critical Oklahoma City Golf & Country Club funds toward our mission of providing pro bono legal representation to abused and neglected children in central Cocktails | Dinner | Dancing Oklahoma. Every day, the Oklahoma County Juvenile Court Casino | Auctions relies on OLFC attorney volunteers to ensure that these Tickets & sponsorships available at children move expediently through the legal system toward a olfc.org/events safe and healthy resolution. At Chips for Children, we celebrate our volunteers and look to the future as we Friend of OLFC continue to expand our legal services. Standard Ticket: (VIP Admission) This year’s Venetian masquerade-themed event will take $150 place at the beautiful Oklahoma City Golf and Country Club $350 in Nichols Hills. The gala will feature cocktails, dinner, dancing, a live and silent auction, and a costume contest— S P O N S O R S H I P S so be sure to arrive in Venetian masquerade attire! Presenting Sponsor: $10,000 If you have any questions, please do not hesitate to contact Defender: $7,500 our office or visit olfc.org/events. We look forward to your presence at this year’s Venetian Ball. Guardian: $5,000 Advocate: $2,500 Sincerely, Protector: $1,500 Steward: $500 Tsinena Thompson OLFC President & CEO For more information, visit olfc.org/events, call (405) 232-4453, or email [email protected].

Valerie Couch Gary Homsey Special thanks to our 2015 general sponsors, the Oklahoma Honorary Gala Co-Chair Honorary Gala Co-Chair Bar Foundation and Osage Exploration & Development.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1625 1626 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE

Opening a Modern Law Office: Coping with Today’s Rapidly Changing Law Firm Business Model By Jim Calloway omparing the opening of a law office several decades ago with today’s requirements can make one feel nostalgic Cabout “the good old days.” Then, you would rent or purchase some office space close to the courthouse or downtown business activity, hire a competent legal secretary, get a typewrit- er (Does anyone else remember the ubiquity of the IBM Selec- tric?), round up some office furniture, stop by the office supply store for a few supplies and you were ready to go. Now, you need to do much of that, but also figure out Internet access (and security), purchase computers, figure out what law office software is required, update your mobile phone plan, create the law firm’s website, buy a scanner, develop written procedures for workflow of digital client files and a host of other items. On the other hand, today the cash-strapped For the beginning lawyer, it is important to young lawyer can set up a law practice with a rely on local experienced lawyers and mentors laptop, a smart phone, Internet access and a for advice about: mailing address and be open for business. • how the courthouse and judges operate, I want to focus here on the numerous differ- • questions about substantive law, ences that lawyers are facing when setting up a law practice today as compared to a few years • developing sound legal strategies, or decades ago. • how to handle a matter where you have The law office should operate much differ- limited experience, ently in 2015 than it did years ago. Advice from experienced lawyers is perhaps the most valu- • your first jury trial and able thing a new lawyer can receive when • opposing counsel’s inexplicable behavior. starting a law practice. An experienced lawyer leaving a firm to start a solo or small firm prac- But, with all due respect to the experienced tice may have different needs. lawyers around the state, I also suggest to

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1627 beginning lawyers that they should pay more But today’s clients want it done right and attention to the modern experts on topics like: want done it quickly. Complex negotiations, fact finding research projects or formal discov- • the need for a digital practice manage- ery procedures in litigation understandably ment system, take time. But as American Bar Association • legal project management, President William C. Hubbard observed at the • paperless office procedures, ABA’s 2015 Bar Leadership Institute, consum- • automated document assembly, ers who now order prescription refills by touching buttons on their phone, who bank • online marketing of your practice and online and who schedule dentist and physician • future trends. appointments online do not want to call to WORKING IN THE LAW PRACTICE schedule an appointment to meet with a lawyer two weeks later just to find out if the In the good old days, the business of law lawyer can assist and what it will cost. meant working as a lawyer — doing legal work on client files. There were, of course, bills to be Lawyers have always looked for ways they paid and a bank account to be managed, but you can improve their legal work, including client could always pay someone to do that for you. service and efficiency. Lawyers have always been creative about innovative new legal argu- Today, the business of law operates much ments or creative statutory interpretation. But more like any other business; the CEO has to the management of law practice used to be spend time with strategic planning, budgeting, much the same as it was the year before. Today regularly reviewing financial statements and only a few lawyers have the luxury of being improving business operations. The challenge is concerned only about the delivery of legal ser- that you also have to do most of the legal work. vices without also paying close attention to The entrepreneur-lawyer, particularly the business operations. Business today is about small firm lawyer, has to deal with the stark change management. reality that you either do something yourself or YOUR BUSINESS PLAN AND you pay someone to do it for you. Most law- BUSINESS MODEL yers will benefit by having a full- or part-time assistant to free them up to do more legal work For many, the business model was “We are and fewer administrative tasks. But that’s not lawyers. That is our business model, just like true for all lawyers and often not an economic all of the other lawyers.” Certainly lawyers possibility for some. Today it often makes gravitated toward work and practice areas sense to outsource some of the tasks that were they found interesting or that seem to be the previously done by law firm employees. High most financially rewarding. But mainly the on my suggested list of things to be outsourced focus was on getting the legal work done in is payroll preparation and tax deposits. Virtual front of you right now. Many lawyers today reception services, like the OBA-endorsed have deep expertise in a particular area of the Ruby Receptionists, are also becoming more law that often started with one or two matters popular. These services can be used full-time in that area where the lawyer obtained good or for just a few hours each week to cover results. This brought repeat business and new lunch time closures or to give the assistant (or business in that substantive area. lawyer) some uninterrupted time to complete Today you need a focused business plan in projects. writing for your legal services business model. EFFICIENCY It is true that the plan may change many times or that your business may take a far different For years many lawyers would have said, direction than you anticipated. Modifying the “Well, of course we don’t want to be inefficient. plan as circumstances dictate is a good thing. We work hard and work long hours. But it is more important for legal work to be done right There are now storefront law practices, vir- than fast. And the clients will pay for the time tual law practices that deliver services online, it takes to do it right.” That good old days atti- home-based law practices, traditional law tude has been a long-standing tradition in the firms and virtual law firms where lawyers legal profession. There can be no compromise do traditional legal work but from different on doing legal work correctly. physical locations, just to name a few. A consumer-based practice will likely involve more

1628 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 automation and downward price pressures. A tions with a few clicks of your mouse that are business or corporate law practice will be sometimes challenging now like when a client challenged by more of the routine work being asks for the exact balance of their bill as of brought in-house to be done by in-house today. You will always be able to see notes counsel, leaving the more challenging and dif- from conversations between clients and the ficult work for outside counsel. other lawyers and staff in your office. Your plan should include the types of clients Established lawyers can continue their suc- you intend to serve, in what substantive areas, cessful practices using the tools they are most what you will do to attract those clients, how comfortable using. But there is no question that you will manage work flow, staffing require- a new law office needs to be set up with desktop ments and a host of other areas. This is why scanners handy, and the lawyers should rely on your plan must be in writing so you can orga- practice management software or services. nize so many different activities. MARKETING AND CLIENT PAPERLESS DEVELOPMENT In the good old days, being paperless meant In the good old days, the lawyers would that it was time to send some- open the office, introduce them- body out for supplies! selves to all of the local lawyers and court staff, perhaps send Today it is critically important out a few an-nouncements and to set up the new law firm to then sit back passively waiting handle client information and Your plan should for clients and money to start client files digitally, even if you rolling in. elect to keep duplicate paper cli- include the types of ent files in the office. clients you intend Now, there is a bit of oversim- plification in this observation. For years I’ve noted that the to serve, in what Obviously previous generations use of practice management of lawyers worked hard to de- software or online cloud-based substantive areas, velop new clients. They partici- practice management services what you will do to pated in civic organizations, was an absolute necessity for joined the right clubs, became the solo or small firm lawyer attract those clients, closely acquainted with fre- and likely a necessity for almost quent referrers of legal business every lawyer. Many lawyers how you will manage and engaged in a host of other still resist this practice and if the work flow, staffing activities designed to ultimately established paper-based sys- generate good clients. tems are not creating any prob- requirements lems for the firm or the firm’s Today, legal professionals clients, it is difficult to convince and a host of other operate in a highly competitive those lawyers to institute major market, with more competitors change. areas. (including nonlawyers) emerg- ing every day. One needs to The arguments in favor of this clearly understand the ethical approach seem almost routine prohibition against direct solicitation of clients. now. There is no hunting for lost files because But technology opens many more opportuni- the files primarily live in the file cabinet and ties for a new law practice (or any new busi- people actually work with the computer files. ness) to publicize the services offered to the Data backup procedures only allow you to pro- public. It is simply foolish for a lawyer starting tect all of your client’s information (and your a new private practice not to have a website business survival) if all of the pertinent infor- and, frankly, that is also not wise for most law- mation is located within a digital file. If your yers in established private practices. Today’s office is destroyed and your data backup con- new lawyers are certainly not going to just sit tains only those documents you created in around passively in their offices hoping some- your office and not those from opposing coun- one decides to enter. LinkedIn and other social sel, you will have a challenging several months media sites will be set up by most new lawyers ahead of you trying to recreate the lost files. with links back to the firm’s primary website. You will be able to quickly answer many ques-

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1629 Online videos promoting the law practice will a lot of time to building a great law practice be commonplace. that will last for your career. That means, particularly if you have a storefront location, being We have seen around $1 billion in venture in the office and available during business capital money go into legal service startups hours, including first thing in the morning. over the last several years. I wouldn’t want to And if you represent individuals, many of bet my future on believing most all of those them will need to schedule evening or week- new startups will fail. But, whatever these new end appointments. businesses do or attempt to do, they will be promoted online and you might as well secure A new lawyer in solo and small firm practice a healthy online presence for your law firm absolutely has to be able to work from home or ahead of them. on the road when needed, which normally means having a laptop computer and either TECHNOLOGY BUYING GUIDE remote VPN access to the client files on the The 2015 Solo and Small Firm Legal Technology office network or a practice management solu- Guide is a great resource, and I would say that tion in the cloud. But working at home every even if the authors were not good friends who night is not the best plan. asked me to write the introduction. Sharon One thing that has never changed from the Nelson, John Simek and Michael Maschke do a good old days is that you are the most impor- great job each year dissecting the various tech- tant part of your law practice and taking care nology purchasing decisions that a solo or of the most important business asset is good small firm lawyer must make. It may be pur- business. chased from the American Bar Association online bookstore or is available in the OBA There will be challenges, and in many ways MAP lending library. opening a law practice today is much more WORK/LIFE BALANCE challenging than in the good old days. But, one can certainly have a successful career as a law- There’s a lot of discussion about increased yer today and being successful with your own flexibility allowed by today’s technology and law firm doing it your way will be rewarding quality of life. But, the professional life of a in more ways than just earning a living. lawyer and, for that matter, any entrepreneur with a startup business, is almost always more Author’s Note: For those seeking more infor- than a “full-time” job. Being your own boss mation on equipment purchases for the law does mean you can arrange your schedule to office, in the October 2012 Opening Your Law be a youth sports coach or take off a bit early Practice Oklahoma Bar Journal, I wrote an article on Friday afternoon when you have no dead- titled “Equipping Your Law Office 2012.” This lines and have just had your fill of work that article is online for your reference at www. week. But, it also means you had better have a okbar.org/members/MAP/MAPArticles/ reliable assistant coach for when that tempo- HardwareSoftware/Equipping2012, as are all rary emergency injunction hearing is set dur- of the other articles in that issue. ing practice time and you may pay for your coaching time by working some late nights About The Author after the kids are in bed. Mr. Calloway is OBA manage- Don’t get me wrong, we have a huge prob- ment Assistance Program direc- lem in our profession with lawyers working tor. Need a quick answer to a too many hours and suffering from so much tech problem or help resolving a stress. Work/life balance will likely be an issue management dilemma? Contact you struggle with for most of your career. But, him at 405-416-7008, 800-522- when you are trying to launch a successful new 8065 or [email protected]. It’s a business in what has now become a much free member benefit! more competitive field, you will want to devote

1630 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1631 1632 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE Because It Is Not Your Money! By D. Scott Pappas ou’ve passed the bar, you’ve hung out your shingle, you’ve accepted your first client and you’ve received your first Yretainer. Now what? If you haven’t already, you need to open your trust account where you will deposit any unearned retainer monies from any client going forward throughout your career as an attorney.

Rule 1.15 of the Oklahoma Rules of Profes- Cash is available immediately, if it is not sional Conduct governs an attorney’s conduct counterfeit. regarding his or her trust account. Simply put, For checks deposited into your trust account, you have a fiduciary duty when it comes to the the bank makes a separate decision on each monies received from your clients that you check deposited as to when the monies will be have not yet earned. deemed fully collected and, therefore, avail- Funds received from clients must be kept able for your use. The decision whether or not separate from your own operating funds. They to put a hold on a particular check is usually must be safeguarded and complete records based on a three-factor test: 1) the risk involved must be preserved for a period of five years with the particular check; 2) your account his- after termination of the representation of that tory with the bank, including the age of your client.1 trust account and the previous activity in it; 3) the total amount of money currently in your Your trust account must be established as an trust account. The bank considers its duty to interest-bearing demand account in a financial protect itself and you and, by protecting itself, institution approved by the OBA’s Office of the it then protects you. General Counsel, which we call an IOLTA trust account.2 Often, these accounts will be a “NOW” When checks are drawn on the same bank as account with an “exempt” status so that you will the bank that has your trust account or on a not be restricted by the number of checks you local, neighboring bank, then you can usually can write and you will not pay a service charge, expect the funds will be available the next day. which was waived as a courtesy.3 If the check is drawn on another bank in Okla- homa, you can expect there could be a two- to- However, your trust account will be subject three-day hold before the monies can be used. to the rest of the financial institution’s rules There is a complex chart that applies in other associated with making deposits and writing cases that can result in a seven-or-more-day checks. For example, if your client gives you a hold. “bad check,” then you will be responsible for the fees associated with that bounced check. Money orders are treated like checks by a financial institution. In addition, there is a limit It is important to remember that the form in on how much money can be put on a money which a client pays you monies controls how order. A bank would find it unusual for a per- soon that money is actually available for use.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1633 son to use a lot of money orders to pay one of your legal bills and, therefore, would likely PRACTICAL TIPS: issue some kind of hold on those money orders. • Keep a ledger for each client indicating in detail the monies deposited into the trust Be sure to ask your trust account bank what, account and withdrawn from the trust account if any, hold will be placed on a particular check for that client. if you have a time-sensitive situation as to when the funds will be needed. If you use the • Keep your trust account at a separate bank funds before they are available, then you risk, from your office account. among other things, using funds in your trust • Balance your trust account for each client on account that belong to another client or over- a regular basis. drawing your trust account; both of which are violations of your fiduciary duty. • Order your trust account checks in a different color from your office account checks. In addition, be sure to balance your trust account monthly bank statement promptly. • Have different color checkbook covers for You will notice on the back of that bank state- your trust account and your office account. ment the bank gives you a certain amount of • Whoever opens the mail should not also time from the date of the statement to protest balance the trust account (or office account, any inaccuracies on it. Fictitious checks are for that matter). more of a concern as people become more clever and sophisticated in their fraudulent • Keep a separate merchant account for accept- schemes. The banks are seeing more tampering ing credit card payments. with checks that can take the following forms: • When a client overpays you in one check, • Creating a check that may have your cor- deposit all the money into your trust account rect attorney logo, but has the wrong and transfer only that portion of the money bank for your account or the wrong rout- that you have actually earned into your office ing number; or, account. • Washing a check that you gave them and then altering the amount of the check. The trust account bank’s rules govern when For example, changing $100 to $1000 or the deposited monies are available for your more. use; you decide when to spend it. You may withdraw monies from your trust account once You can help catch these issues when you you have earned it or need to pay an expense balance your statement. on behalf of a particular client.4 For example, so If you decide to accept credit cards as pay- long as you have sufficient funds in that cli- ment, you need to establish a merchant account. ent’s trust account, 1) after you have billed a To avoid problems, it should be a separate client for your legal services, then you have account from your trust account, as the credit “earned” the right to pay yourself that billed card transaction fees will automatically be amount from that client’s trust account or 2) deducted from the merchant account either at when you are ready to file a pleading at the the time you take your client’s credit card or on court clerk’s office, then you can write a trust a once-a-month basis for all the fees collected account check for that filing fee. Both of these in that time period. Since you do not have transactions should be recorded on the trust operating funds in your trust account —only account ledger that you keep for that individu- monies owned by your clients — these credit al client and noted on the client’s bill from you. card transaction fees are not available to be Both you and the client should be able to ascer- withdrawn from your trust account. With a tain the balance of his or her trust account at all separate account, you simply transfer the cred- times as transparency is essential to maintain- it card payment to your IOLTA trust account ing trust with your client and staying in com- once the funds are available to avoid violating pliance with the OBA. your fiduciary duty to the funds in your trust The approved financial institutions have account. filed a Trust Account Overdraft Reporting Agreement with the Office of the General Counsel and have a duty to report to said office

1634 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 any time your trust account has disregard of it. The OBA may insufficient funds.5 …if a client overlook what can be deemed to be a legitimate mistake. How- Furthermore, any interest gives you monies to ever, you could find yourself in earned on the monies in your an OBA-sponsored diversion trust account does not belong to be used for a certain course or with charges formally you. Rather, the financial insti- against you seeking your dis- tution that has your trust purpose, such as to barment for certain infractions. account must remit the earned pay for an upcoming interest to the Oklahoma Bar When in doubt, contact our Foundation on at least a quar- deposition or for the OBA ethics counsel and, in the terly basis.6 meantime, act as you would if it cost of transcribing a were someone else’s money . . . Commingling your earned because it is! monies from which you operate judge’s ruling, those your office with the un-earned funds cannot be 1. See Rule 1.15(a). monies in your trust account is 2. See Rule 1.15 (h), (j)-(o). 3. May 16, 2015, telephone interview with forbidden except for two, limit- used for any other Katrina Jarvis, vice president and branch man- ed purposes: when necessary ager, at bankSNB in Stillwater, Oklahoma. “to comply with the depository purpose… 4. See Rule 1.15 (c). 5. See Rule 1.15 (j)-(o). institution’s minimum balance 6. See Rule 1.15(h)(3). requirements for the mainte- 7. See Rule 1.15 (b), (h)(4). See nance of [your trust account] or 8. Rule 1.15 (f). funds needed to pay applicable fees and service charges.”7 About The Author

Remember that if a client gives you monies D. Scott Pappas practices in to be used for a certain purpose, such as to pay Stillwater and focuses primarily for an upcoming deposition or for the cost of in the areas of family law, juve- transcribing a judge’s ruling, those funds can- nile law and building a collabor- not be used for any other purpose until “other- ative law practice and awareness wise authorized by the client . . . or prohibited in Oklahoma. She served on the by law.”8 OBA Board of Governors and on Take your fiduciary duty seriously to avoid numerous OBA committees and any unsavory consequences for your uninten- task forces. She graduated from Fordham University tional negligence or, worse yet, intentional Law School in 1991 and practiced in New York before returning to her hometown.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1635 1636 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE Professional Liability A Lawyer & Law Firm’s Major Exposure By Phillip D. Fraim

t first glance that title may seem harsh, but every occupation, every industry, every profession has something that Acan be identified as the major exposure from a risk management perspective. For the lawyer, as well as the law firm, it is undoubtedly professional liability. Major exposures faced by law firms include professional liability, data breach/cyber issues, employment practices liability, property and workers’ comp. This article focuses primarily on professional liability, but the growing exposure of cyber liability and also employment practices liability are so closely intertwined that we will touch on those as well.

Someone once asked me if it was kind of sad Those who don’t, usually do not give us a to handle a product no one was excited about chance to discuss the reasons, some of which after they made the purchase. That was an are more obvious than others. interesting realization and one that was quick- Like all third-party liability insurance, pro- ly followed by thoughts of all insurance pur- fessional liability protects assets — both per- chases I’ve made, both personal and commer- sonal and firm assets. Litigation expenses con- cial. My conclusion was that I can’t think of a tinue to increase, and insurance provides product I’ve been any more thankful to have defense cost coverage, above the deductible. when I’ve needed it, whether it was health Cost of defense and access to several leading insurance, auto insurance, homeowners insur- defense counsel makes coverage more than ance, etc. Of course, only my family will be worthwhile. Most any professional liability excited about my life insurance. issue will be the most time-consuming and It is true purchasing professional liability expensive file in your office, so the assistance insurance doesn’t necessarily cause anyone to provided in defending the matter helps miti- tingle with excitement; but like all insurance, it gate this tremendously. In addition, we are see- is a risk transfer, and that transfer makes abso- ing most institutional clients and all lawyer lute sense for lawyers, especially in today’s referral services requiring proof of coverage. litigious world. My experience is that most Many of these specify minimum limits, many practicing lawyers understand this fact, and of which are much more than “minimum.” A we don’t have to spend much time with rea- lawyer’s most valuable asset is his/her reputa- sons why you should have professional liabil- tion, and coverage through a company that ity insurance when you open a law office. cares and takes these concerns seriously is

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1637 critically important. Finally, a reason some- prior acts date, requires consideration to exer- what less obvious, but every bit as important, cise the option under the policy for an ERE. is the fact that coverage makes your client The ERE (sometimes called tail coverage) whole in the event of an act or omission on requires an additional premium and extends your part. the opportunity to make or report a claim after coverage terminates. Typically, the ERE option CLAIMS-MADE POLICY AND PROFESSIONAL LIABILITY INSURANCE exists for only 30 days after coverage expires. An understanding of the claims-made form An important feature of a lawyer’s profes- is vital to understanding a professional liability sional liability policy within the claims-made policy. One of the easiest ways to gain an form, is the “Step Rating Methodology” used understanding is to compare and contrast in the rating process. The first time coverage is claims-made with the occurrence form found put in place, or the first time after a lengthy in auto insurance, homeowners gap, the lawyer enters in at step-rate one, no insurance and general liability prior acts coverage. Because insurance. An occurrence form coverage only applies to acts or omissions from the effective applies to accidents/events that date forward, the premium is occur during the policy period, reduced considerably from the regardless of when they are actuarial determined rate. Each reported. Under the claims- An important year, the lawyer moves up to made form, coverage is trig- feature of a lawyer’s the next step, where the premi- gered when the claim is first um increases slightly until they reported, and it attaches to the professional liability reach the maximum, known as policy in force at that time. policy within the the maturely underwritten rate, The date of the alleged act or at which point the premium lev- omission is important as cover- claims-made form, els off. age is restricted by a second is the ‘Step Rating THE POLICY trigger, the prior acts or retroac- tive date. The prior acts date Methodology’ used The guiding phrase of cover- bars coverage for acts or omis- age is “legal services provided sions alleged to have occurred in the rating to others as a lawyer.” This before the specified date. Typi- process. extends to include many fidu- cally, the prior acts date is ciary duties, such as serving in known as retro-date incepted court appointed fiduciary posi- (date when coverage first tions. Coverage can also be becomes effective). Several extended to include title agent things can impact and alter the prior acts date, errors and omissions (E&O) for a very small so the insured must be aware. First, continuity flat charge premium. It is important to note of coverage is critical. A lapse or gap in cover- there are many ancillary services that can be age for several months can cause the prior acts provided from the law office. Not all of these date to change to the next effective date, losing meet the definition of legal services and there- all prior acts coverage. Also, leaving one firm fore, do not fall within the coverage of the for another can create a situation where the policy. new firm only provides coverage from the date Any insurance policy contains exclusions. the attorney joined the firm, thereby changing The lawyer’s professional liability (LPL) policy the prior acts date. The lawyer must then con- does as well. You should familiarize yourself sider an Extended Reporting Endorsement with these. Some of these include: (ERE), which is discussed below. In summary, a policy must be in effect at the time a claim is • coverage for punitive damages, sanctions reported and the act or omission must have and penalties occurred within the retro/prior acts date. • claims for the return, restitution or dis- Assuring coverage after a policy terminates gorgement of fees and no new policy is purchased due to retire- • discrimination or sexual harassment ment, leaving private practice or even a situation where a new policy will not match the last • acts as a public official

1638 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 • dishonest, criminal, intentional acts exhausted, each dollar spent above this amount reduces the available limit. • claims made by a business enterprise owned, managed or controlled, directly or Most LPL policies contain what is known as indirectly, in which a conflict is alleged or a split limit. The first limit referenced is the per in fact present claim limit, and the second is the policy aggregate. As an example, a $200,000/$600,000 limit The application is critical and attention indicates the total of all claims in a policy year should be given to the way it is completed for cannot exceed $600,000 and no one claim can a few reasons: exceed $200,000. • It attaches to and becomes a part of the Cyber Insurance/Data Breach Liability policy. Exposures change as the world changes. • Suppressing or falsifying information may When the only tech device in the law office was cause cancellation or even voiding the a fax machine, not much changed except the policy ab initio. risk of losing information because the ink on • The form should be used as a self-audit/ the thermal roll paper faded away. assessment of firm procedures. Today, we have all heard the horror stories of • You should be as complete as possible put- lost personal private information and confi- ting your best foot forward so the under- dential data. Hacking of Home Depot, Target writer better understands your operations. and Anthem Insurance certainly make the news and get our attention, but how does that Probably the most often-asked question by relate to law firms? A couple of years ago, PWC insureds is “what limit should they carry.” This Forensic Services Group said, “Law firms are is an important consideration and one that more at risk than financial institutions to be should be reviewed periodically. Unfortunate- breached.” How and why? Because hackers do ly, no magical formula exists to accurately not typically discriminate, they simply attempt determine appropriate or optimal limits. I have to breach the easiest target. often facetiously remarked that it is easy if you can predict the amount for which you may be The OAMIC policy currently endorses data sued. Absent this clairvoyance, we should look breach/cyber liability onto the LPL at a base at areas of practice, which helps determine limit. Higher limits can be purchased. The need likelihood based upon frequency and case for this coverage is here to stay and has become values. It is never wrong to buy what you can critical for businesses, especially law firms comfortably cash flow. The tragic circum- because they are held to a higher fiduciary stance is paying for coverage and not having standard. The endorsement provides not only adequate limits to satisfy the claim. Premiums a sub-limit ($100,000) for third-party liability do not increase at the same rate that the limits (the OAMIC LPL coverage does not exclude increase. In other words, doubling limits does this third-party negligence coverage), but also not double the premium. Remember, the some important first-party coverages such as appropriate limit for the firm in 1995 is not forensics, PR services and crisis management necessarily the appropriate or adequate limit like credit monitoring. We have engaged a in 2015. reinsurance partner who is an expert in working through these matters and will be able to Defense costs can sometimes average 50 per- assist us and our insureds. Cyber-related issues cent of indemnity costs on an annual aggregate are important to be aware of and we need to basis. Therefore, it is not unusual on a specific develop risk management efforts and tailor claim for defense costs to exceed any indem- coverage as exposures evolve. nity amount. Be aware of how defense costs impact the per claim policy limit. Many LPL Employment Practices Liability (EPL) policies have limits that are reduced by every EPL can be added to the OAMIC policy by dollar spent in defense. The Oklahoma Attor- endorsement for a fairly minimal premium per neys Mutual Insurance Company (OAMIC) lawyer, at a $100,000 base limit. Higher limits policy contains a “claim expense allowance.” are available. Coverage applies to wrongful This is an amount in addition to the limit employment practices such as discrimination, which can be spent for defense, without impact- harassment and wrongful termination. Recent ing the limit. If the claim expense allowance is reports project that over 30 percent of busi-

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1639 nesses will face an employment practices related claim over the next two years. This coverage About The Author should be considered in order to round out the Phillip Fraim has served as firm’s insurance program. OAMIC president since 1993. He Professional liability coverages are often joined the company in 1989 as taken for granted by law firms. We prefer you vice president and treasurer. He is have a working understanding of the coverag- the National Association of Bar es available and how they protect both you and Related Insurance Companies your clients. It is always better to think and talk past president and current secre- through issues before a real matter confronts tary. He serves as Bar Plan Surety you. Please do not hesitate to contact us if we & Fidelity Company secretary, has served on the can assist in any way. National Association of Mutual Insurance Compa- nies board, is a Professional Liability Underwriting Society member, UCO Foundation board of trustee and an Edmond Economic Development Authority trustee.

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

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

1640 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 TAKE ACTION. Increase public understanding of law-related issues

Volunteer to speak in your community

• schools • civic organizations • outreach programs

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1641 1642 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE The Importance of Your Fellow Lawyers By Tracey Garrison

efore I opened my law practice, I had the benefit of 17 years experience as a paralegal and two years experience work- Bing for solo attorneys. Therefore, I was able to observe how to run a law practice from other lawyers.

As a sole practitioner, you will want to find friend, who is having an affair, that he “can’t a few dependable, trustworthy lawyers you ride two horses with one behind.” When I ask can count on for a variety of reasons. One rea- myself if I would be riding two horses, the son is to help keep you out of trouble with the answer usually becomes obvious. OBA Office of General Counsel and/or the When faced with a novel legal situation, it is Oklahoma Supreme Court. As a solo attorney, beneficial to have a fellow attorney to discuss no one is looking over your shoulder to make whether he/she has faced the same situation, sure your action, or inaction, is appropriate. It is and even if not, if he/she has a different point helpful to have a fellow lawyer with whom to of view from you as to how to handle it (again, discuss situations. In fact, it may be helpful being careful not to disclose facts which would without even discussing it with another lawyer. violate attorney-client privilege). Discussing a You can ask yourself, if I told attorney X about legal scenario out loud with another attorney this, would he/she approve or disapprove? That can often clarify the situation. likely will give you your answer and maybe steer you down another path. Another reason it would be helpful for a solo attorney to connect with others is to have an One way an attorney can run into ethical attorney you trust who can back you up in an problems is conflict of interest. While conflict emergency. I know sole practitioners who would of interest is something all lawyers need to be be willing to cover a hearing or other proceeding aware of, as a solo you do not have anyone for me, if needed, and I would do the same for with whom to hash out scenarios. A possible them. It is also important to have backup so you conflict of interest is not always easy to detect can have peace of mind going on vacation and before you take on a client. Discussing a situa- knowing if an emergency arose, you could call tion with a fellow attorney beforehand can be on a fellow attorney for help. very helpful (being careful not to disclose names or other information which would vio- Office space is an area where fellow attor- late attorney-client privilege). Another attorneys are helpful. Many attorneys either own ney may have a different view point or think of their own buildings or are renting and have something you did not. When I face a potential extra office space. This can be economical for conflict of interest situation, I think of a line starting your practice. Sometimes lawyers with from an old Woody Allen movie, wherein extra office space also have furnishings which Woody Allen’s character tells his married you can use, so you do not have to buy furni-

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1643 ture. They may also have copy themselves and do not want to and fax machines you can use. seek help from fellow lawyers, Although you may but it would benefit them if they Referrals are another reason would seek such help. fellow attorneys are important not want to think to a solo. Most of my clients about the end of your I also met a graduate from come from referrals, both from 1965 and his lawyer wife. He lawyers and clients. Not only do law practice while asked me who I worked for, and I refer potential clients to other when I told him I was a sole lawyers in areas in which I do you are dealing with practitioner, he was very pleased not practice, but also in areas the beginning, it is and said that is the best way to wherein I do practice on occa- practice law. He and his wife sion. When I get cases that I can very important. opened a practice together right handle, but they are not in my out of law school and he said preferred areas, I often refer after marrying his wife, it was them and in turn the attorneys will think of me the best decision he ever made. I told him I was if they get cases in my preferred areas. writing this article and asked if he had any advice. He said do not be a jerk, do not take a Although you may not want to think about bribe (he knew someone who had), and just the end of your law practice while you are keep working away at your legal career. He dealing with the beginning, it is very impor- also said there are three rules of law: 1) get the tant. I have had to step in several times for an money; 2) get the money; 3) get the money. attorney who was sick and/or died. After these incidents, I created a list divided by practice Before starting my own law practice, I at- area of law. Under each area I listed at least one tended the OBA seminar, “Hitting the Ground trustworthy attorney who can be called upon if Running.” It was very helpful, as it discussed something happens to me, and made sure sev- various aspects of operating a law practice, eral people knew about this list, as well as and I would recommend it to anyone thinking where to locate other office records. of opening his/her own practice. To find lawyers who can be a source of help I am glad that I decided to form my own law and support, consider starting with the alumni office. The control I have over how I spend my from your law school. I have kept in close con- time and which clients I will represent more tact with lawyers I met in law school, but oth- than compensates for the financial uncertain- ers I met either through these lawyers or ties and responsibilities of being the sole deci- through lawyer organizations. Joining lawyer sion-maker. If anyone reading this article associations is an enjoyable way to meet other decides to be a sole practitioner, I wish you attorneys and remain current in your practice much success. areas. I belong to the OBA Bankruptcy Section and various sections of the Tulsa County Bar About The Author Association, including, at one time or another, bankruptcy, probate and guardianship, family, Tulsa lawyer Tracey Garrison solo and small firm. I also belong to the Tulsa is a sole practitioner at Garrison Title and Probate Lawyers. Law Office PLLC. She graduated with honors from the University I also attend alumni events hosted by the law of Tulsa College of Law. Her school where I obtained my degree. In fact, a practice areas include bankrupt- couple of days before the deadline for this cy, probate, guardianships, wills article, I attended an alumni event and met an and trusts, name changes and alumna who said she thinks lawyers get into family-member adoptions. trouble because they keep their problems to

1644 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 OBA Exclusive

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

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

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Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1645 1646 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE

The Non-Tech Side of Starting Your Own Practice By Michelle C. Harrington

uilding relationships remains one of the most important aspects of starting and maintaining your own law practice. BFor a new practitioner or someone going out on their own from the umbrella of a firm, it will be necessary to gain experience, develop credibility, obtain clients and keep clients and referrals coming. If you are an established attorney starting a new practice in an area that you are already experienced in, skip to “Gaining Credibility.” If you are a new practitioner or an established practitioner starting off in a new area of law, read on.

GAINING EXPERTISE you are a new practitioner or new to that area of law and you want to observe. Ask them if We generally don’t learn how to practice law they have any suggestions on upcoming pro- in law school. We learn about the law, research- ceedings for you to view. With a few flips of ing the law and analyzing the law — all good their docket book pages they can recommend stuff to know. But that’s not the same as how to cases that will be instructive, interesting or practice law. We only gain that knowledge downright entertaining because of the issues, from seeing it done and doing it. As you start an attorney or the combination of attorneys. up your practice — before the phone starts They know where the drama lies! These staff- ringing off the hook — take advantage of the ers can often field questions about how their open spots on your calendar and take yourself judges like things done procedurally and how to the courthouse. Watch motions and trials in they run their dockets. the areas you will be practicing. Make notes about what is effective for the litigators and Another way to get valuable insight into what irks the judges. Follow up with the attor- your area is to contact an experienced attorney neys afterward if you have a question about who has a good reputation in the community. the proceedings or a sincere compliment about Let him know that you are not looking for a something you benefited from seeing. job, but that you want to practice in that area and you would like to buy him lunch in As important as meeting good practitioners exchange for an hour of his time chatting with and judges — if not more so — is meeting the you about his practice. A well-established judges’ clerks and bailiffs. These are the gate- attorney will not feel threatened by such an keepers and the people in-the-know. Stop by offer — you are not his competition. When I and introduce yourself to them. Let them know

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1647 got ready to start my own practice, I contacted another instructor at the same place is five such practitioners. Each one was willing to helpful. There are several added benefits spend that time with me and give me helpful to teaching. One is that you will probably input. I developed rapport that allowed me to be surprised at how much more you learn call and ask the occasional question later on. about your own area as you prepare to Four out of five actually sent referrals — I was teach it to others. Other benefits are dis- charging less than they were and was able to be cussed later. more flexible with clients by accepting pay- • Affiliate yourself with groups and orga- ment plans and other options that the more nizations that enhance your knowledge established (read: less hungry) attorneys would and allow you to network with other not do. practitioners in your field. The OBA has Of course, watching and listening will only sections in most areas of law. Many county get you so far — you have to actually do it to bar associations have sections in some figure out how it’s done. A great way to get areas. Attending section meetings helps some hands-on experience while you are wait- you stay current in your area, meet others ing for the paying clients to come through the already practicing in that area, and often door is volunteering for one of the many great exposes you to topical speakers and mate- organizations out there who need help. Legal rials that might not otherwise be available Aid can always use some extra lawyer hands to to you. enable them to assist economically challenged • Offer to speak. (If you just winced, you litigants regarding a plethora of areas of law. need to get past that discomfort. Take a There is an abundance of other programs need- course or join a local chapter of Toastmas- ing similar assistance that may be found ters1 to practice.) Let teachers, civic groups, through your county bar or the Oklahoma Bar church groups, law committee chairper- Association. One of the nice things about the sons and Continuing Legal Education volunteer service is that there are resources — (CLE) programmers know you are avail- human and otherwise — that are available to able. Be creative with topics and gear them assist that you won’t have on your own. The to your audience. For instance, a criminal results of helping someone who needs it while lawyer may speak at a criminal law bar gaining valuable experience is its own reward. section meeting about a new statute; at a The relationships built with others in the orga- civic organization about illegal internet nization, getting your name out there and scams people need to be aware of; and at a developing the heart to continue serving even community college about uses of social after you are more tenured are bonuses. media which may get users in trouble. GAINING CREDIBILITY • Write about your area of law. Explain the Credibility and reputations are the result of a application of a new statute, debate a con- process and time. There are numerous things troversy, talk about what’s trending in you can do to enhance both. Following are other states — potential topics are limited some options: only by your imagination. For traditional publishing, check the Oklahoma Bar Journal • Teach a class in the area you are interest- publication calendar2 to see if there is an ed in. While a law school may be the opti- issue coming up that is relevant, submit mal venue for your skills and goals, there your article to a local newspaper or Google are only three in Oklahoma so the oppor- “where to submit law articles” for numer- tunities are limited. However, there are ous options ranging from law journals to many other options available such as com- niche publications. Another outlet for your munity colleges, universities with under- writings is on a Facebook page you set up graduate law classes, business schools and for your business and/or a blog. Don’t be online courses. Don’t limit yourself to intimidated by the thought of blogging — positions that are advertised. Find out who a blog is simply a website (which you, of the decision maker is with regard to hiring course, will have already set up for your at the institutions you are interested in and business anyway) that has new content make contact. If you know someone who added on a regular basis. Unless you’re is an adjunct, ask them what path they writing for a law journal, skip the legalese took — sometimes having a referral from — just talk to your reader in your own

1648 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 voice about things that will educate, enter- other bar functions. Check out the committee tain or both in your chosen area. options for the OBA4 or your local bar. Find one that is interesting to you, volunteer and par- PROFESSIONAL NETWORKING ticipate in a meaningful way. It is important to network with practitioners FINDING CLIENTS both in and out of your area of law. As previously mentioned, joining professional organiza- Traditional advertising in phone books, print tions and bar sections gives you the opportunity ads and online directories is always an option. to meet and interact with attorneys and judges But potential clients using those methods are working in your own area. These connections generally looking for an attorney as opposed to are great when you need somebody to bounce looking for you. Let’s focus on some interper- ideas off, field questions and share strategies sonal ways to get your name out there. and materials. This group enables you to avoid Teaching a class in your area was mentioned recreating the wheel. above as a great way to develop credibility. Some may say that “shy attorney” is an oxy- Teaching in general is also a way to reach moron. Yet in public groups we often hang out potential clients. I am not advocating taking on with the people we already know. When you a teaching position so that you can solicit cli- attend meetings and CLEs, get outside your ents. I am telling you that when you teach a comfort zone and sit next to someone you class on a topic that you have interest in — don’t know. Introduce yourself to new mem- whether it is law-related or hobby-based — bers. Challenge yourself to meet at least one you are interacting with people who know you new person at events. are a lawyer — often the only lawyer they know. If you are doing your job well, you are a Mixing with attorneys and judges who work lawyer that they have a positive impression of. in different areas of law is also helpful. First, When they, their friends or family members many types of law are interrelated and it can be have a legal need, your name will come to educational learning more about the overlap. mind. (Caveat: don’t represent a current stu- Second, the expertise of others can be a rich dent if you are teaching a class that gets grad- resource. For instance, family law attorneys ed. After grades are in and they are no longer deal with issues regarding their client’s prop- your student, there would not be a conflict.) erty, taxes, potential bankruptcy, criminal activities, social security, employment benefits, In addition to the teaching institutions men- workers’ compensation issues — you get the tioned previously, vo-tech schools often offer idea. Interview your new acquaintance for a myriad opportunities for instructors teaching blog post or invite them to guest post on your everything from computer classes to jewelry blog. You get the multiple benefits of getting to making. Some schools welcome new class pro- know them better, learning something, new posals. I know one attorney who pitched the blog content and — if you did it well — idea of a class to teach students how to play increased readership when they share their poker — he was hired to do it! own interview/post on their social media! You get the same two-for-one benefit from One of the best entities to join to enjoy the some of your speaking engagements. No mat- diversity of our profession is an Oklahoma ter what group you are addressing or what chapter of the American Inns of Court. The your topic is, let the audience know at some mission of that organization is to promote civil- point that you are an attorney in your specific ity and ethics amongst attorneys. The inns are field and always pass out your business cards structured to encourage interaction with attor- with your contact information in case anybody neys from different legal backgrounds and dif- has follow up questions. Better yet — prepare ferent levels of experience from pupils (law a handout with points of interest that your students) to masters (being an attorney for audience will want to keep for a reference and more than 20 years) and everything in between. make sure your relevant information is on that. There are six inns in Oklahoma.3 Join nonlegal groups that you have a sincere Another way to meet and mix with diverse interest in. Civic organizations like Lions Club, groups is to attend CLEs outside your area. It’s Rotary and National Exchange Club5 allow you also a good idea to attend the OBA Annual to participate in projects that enhance your Meeting, Solo and Small Firm Conference and community as well as enjoying a social compo-

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1649 nent with individuals who may need, or know tion. Don’t make lame excuses for a screw up somebody who needs, your services in the or time delays — own it, apologize and do future. Join groups that focus on a cause you better. At the close of their case, send a person- believe in or a hobby you enjoy. I have gotten alized letter thanking them for using your ser- many referrals from my book club buddies vices and wishing them the best. A client who over the years — in addition to reading some feels he has been heard, that his attorney did fascinating books I never would have chosen the best she could in his case and that he mat- myself. tered as a person, is a client who is likely to refer other clients. If you’re maintaining your social media presence right, you’re creating a valuable opportu- CONCLUSION nity for potential clients to get to know and This article includes ideas to interact with trust you. Nobody wants to be blasted by ads others in a way that will result in gained expe- and sales pitches. Post regularly on your Face- rience, enhanced credibility, networking oppor- book page with helpful articles (from your blog tunities and new clients. It is not intended to be and other sources), tasteful cartoons or jokes, comprehensive — there are entire books dedi- updates on the law, human interest videos or cated to this topic. The intent is to remind you pictures, holiday greetings, etc. Interact with that while technology is necessary, helpful and a your readers — “like” and respond to their great resource, it’s just not enough. Without comments. Don’t be afraid to share from other people, you have no practice. You need them to professional pages — it will build up goodwill learn from, to network with and to be the clients with other professionals and benefit your who will seek your services. Being intentional (potential clients!) readers. The same goes for and authentic as you develop relationships will your blog — read and respond to comments in result in you building and maintaining the kind a personable (not giving personal legal advice) of practice that makes a parent proud! way. The point is to be an accessible expert — the one they already trust and aren’t intimi- 1. Toastmasters is an international nonprofit organization. Its pur- dated to call when they have a legal need. pose is to teach its members to learn or enhance their public speaking skills. There are 84 chapters in Oklahoma. To find one close to you go And the best way to get new clients? Treat to www.oktoastmasters.org and select the “club directories” option. 2. www.okbar.org/members/BarJournal/Submissions your existing clients like gold. In this day of 3. There are two inns in Tulsa (Council Oak/Johnson-Sontag instant gratification where a two-minute wait American Inn of Court and The Hudson-Hall-Wheaton American Inn of Court) and four inns in Oklahoma City (The Luther L. Bohanon results in much wailing and gnashing of teeth, American Inn of Court, The Robert J. Turner American Inn of Court, businesses that treat their clients special and the Ruth Bader Ginsburg American Inn of Court and The William J. Holloway Jr. American Inn of Court. Each Inn sets its own criteria for offer personalized services stand out. membership. 4. To find a list of committees, membership list and mission state- Give clients your total attention during ments, go to www.okbar.org/members/commitees. appointments — no assistants bustling in for 5. The National Exchange Club is a nonprofit organization which focuses on community, patriotism and service with a formal mission to you to sign documents or give you messages prevent child abuse. There are seven chapters in Oklahoma: Exchange about other cases, no sneak peek at the cell Club of Edmond, Noon Exchange Club of Edmond, Exchange Club of phone that just dinged with the arrival of a Muskogee, Exchange Club of Norman, Exchange Club of Oklahoma City, Downtown Exchange Club of Oklahoma City and Exchange Club new text. Consider giving them a folder or of Stillwater. flashdrive to store forms you want them to fill out as well as information that will be helpful About The Author to them. Communicate with them. Explain up front how long on average it takes to return Michelle C. Harrington is a calls so that they have realistic expectations solo practitioner whose practice and don’t feel ignored if you can’t get back to is restricted to family law. She them the same day they left a message. Keep received her J.D. from OU in them in the loop — copy them on all ingoing 1992. Ms. Harrington has been and outgoing documents regarding their case. an adjunct professor at OCU If there is a long lag-time between activity on School of Law since 1999 teach- their case, shoot them an email to touch base ing family law and related cours- and reiterate what the next step is. Make note es. She is the author of Oklahoma Family Law Direct of their birthday on your intake and acknowl- and Cross Examination and blogs with humor about edge it if it comes up during your representa- how to stay married at www.shelharrington.com.

1650 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Datasmart Computer Investigations Computer Hard Drive Forensic Investigations Cell Phones – iPhones - iPads – Thumb Drives – Cameras Consultation on Cases and Litigation Holds 25 Years Law Enforcement Experience Tim C. Stadler Electronic Investigations Expert 918-527-0088 [email protected]

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1651 1652 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Opening A LAW OFFICE 11 Things to Know When Starting a Small Town Practice By Stephen Beam

MENTORING Make plans to attend the OBA Annual Meet- ing in November. You will see lawyers from I realize this is a new generation of across the state, and it is a great source for lawyers who do not necessarily referrals. 1 want to take the time for one-on- one mentoring. While there is still a Fastcase is a free research service provided great deal of merit in traditional mentoring, by the Oklahoma Bar Association. Many peo- especially in a small town, there are other ple are not aware this is available and is free. resources readily available. Listservs can be a great source of information. One of the very The Oklahoma Bar Association has an ethics best is the Oklahoma Criminal Defense Law- counsel. If you have an ethics question, use this yers Listserv. You can ask questions and service. It is free, and most of your questions obtain forms readily from other members. I will be answered over the telephone. The new personally use that listserv. The American Bar ethics counsel is Joe Balkenbush. Association offers a listserv called Solosez, ADVERTISING which is also very good. I have never spent any money on THE OKLAHOMA BAR advertising. I ask potential clients ASSOCIATION 3 who come in my office who referred Get to know Jim Calloway, the them to us. Almost every response is 2 director of the Oklahoma Bar Asso- word of mouth or through the Internet. I ciation Management Assistance Pro- would not spend one cent on yellow page gram. This is a free service. Mr. Calloway has a advertising. That is not how people find lawyers wealth of knowledge and is very willing to today. Get a website as soon as you can. Almost share it with anyone who asks. Books and all of my referrals other than word of mouth other resources are readily available. If you come through Martindale Hubbell, Super Law- have a technology question, or any other ques- yers, our website or some other way potential tion about starting a solo or small firm practice, clients can search for you on the Internet. ask Mr. Calloway. OUTWORK YOUR OPPONENT You should make plans to attend the Okla- You will find many older lawyers homa Bar Association Solo & Small Firm Con- who think they know the law but ference held each June. It is a family-oriented 4 they really don’t. The law they know event and a lot of fun. You will get all the CLE may not be anywhere near current. You you need for an entire year. The CLE is practi- may not be as experienced as your opponent, cal and you will learn things you can put to but you can always outwork your opponent. immediate use. In addition, you will meet Always start with the statutes and go from other Solo & Small Firm practitioners who there. might refer you a case. You can share ideas and exchange information.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1653 BILLING IS IMPORTANT BUY ADEQUATE MALPRACTICE INSURANCE Get your bills out on time. Make sure your bills have sufficient Most of the time when you make 5 detail. No one wants to pay a bill 9 a mistake, and you will make a mis- that says simply “legal work” or just take, it can be fixed relatively easily. gives the number of hours you spend on a par- For those things that cannot be fixed, adequate ticular project. Make sure your client knows malpractice insurance is a must. It is not as exactly what you did and in detail. Send a copy expensive as you think it will be. of everything you produce and receive in a IF YOU HAVE A CLIENT WHO case to your client. Make sure you send your DOES NOT PAY OR DOES NOT bills by the first of the month and bill regularly. FOLLOW YOUR ADVICE – GET ASSOCIATE WITH OTHER 10 OUT FAST LAWYERS No one likes to withdraw from a Do not be afraid to call another case or have a conflict with a client. Sometimes 6 lawyer to ask for help on a case. it cannot be avoided. If you have a client who Some of the most fun and success I does not pay, or does not pay timely, attempt to have had practicing law is trying a case with withdraw immediately. If you have a client another lawyer. Most of the time two heads are who will not follow your advice, attempt to really better than one. withdraw immediately. Do not wait. If you wait, you may not be allowed to withdraw by SPEND YOUR MONEY ON the court. COMPUTER EQUIPMENT YOUR WORD REALLY IS If you have to cut corners, do it YOUR BOND 7 on furniture and office furnishings. Do not cut corners on computers This is the most important one. 11 Every person can name an attorney and software. It is vitally important you are able to produce good quality work quickly. or two you cannot trust. It becomes universally known among the bar. You can get EMPLOYEES a horrible reputation and the practice of law Hire at least a part-time employ- can be miserable, if you cannot be trusted. If it ee as soon as you can. Hiring is not true, do not say it. 8 employees is a big deal. You may think it is a headache and not worth About The Author the trouble at least initially. I cannot stress how important it is to have a real live person answer Steven D. Beam is a sole prac- your telephone to talk to clients, other lawyers titioner in Weatherford. He or judges. Hire employees with a good person- served as OBA president in 2006 ality and who are loyal. You can teach them and as chair of the Professional what you want them to do. Responsibility Commission, Solo and Small Firm Committee and General Practice Solo and Small Firm Section. He currently chairs the Judicial Nominating Commission and is an OBF Trustee. He holds leadership positions in the ABA GP Solo Section focusing primarily in the solo and small firm practice area.

1654 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 LETTER TO THE EDITOR Dear Editor:

Re: Oklahoma Bar Journal, Education Law Vol. 86, No. 14 (May 16, 2015)

I am writing with regard to the article in the above referenced volume, specifically “Bible Distribution in Oklahoma’s Public Schools.” I take issue with the statement on page 1060 “[r]egardless of the materials, they should not be provided to elementary school students under any circum- stance.” The issue is not that bright lined. However, the article is correct that school districts should contact a well-qualified attorney regarding this issue. I thank you, your staff and all contributors to the journal for your time and efforts to keep us informed on many issues. Warm Regards, Jan Preece Gaddis Attorney at Law Duncan, Oklahoma

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Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1655 SECTION NOTE

Taxation Law Section 2015 Oklahoma Tax Legislation By Sheppard F. Miers Jr.

The following is a summary of some of the craft maintenance or manufacturing facility or changes in Oklahoma tax law enacted by the a qualified web search portal.3 Oklahoma Legislature in 2015. Equal Opportunity Education Scholarship Act INCOME TAX The Equal Opportunity Education Scholar- Aggregate Business Filing for Income Tax and ship Act was amended with respect to allow- Franchise Tax ing an increased credit for commitments to make contributions for two years, and to The tax return and payment provisions for amend the definitions of “eligible special needs the Oklahoma Income Tax Code, Franchise Tax student,” “educational scholarships,” “quali- Code and for secretary of state registered agent fied school,” “qualified school for eligible spe- fees were amended to provide for an “aggre- cial needs students” and “early childhood gate business filing and remittance” for taxable educational program,” with changes for contri- years beginning on or after Jan. 1, 2016. The butions to cover educational costs of a quali- aggregate business filing may be used as a fied school which does not charge tuition and single filing in lieu of filing separate returns, enrolls special populations of students, and applications or other annual filings. The com- schools which provide educational programs putation of income tax and franchise tax liabil- for three-year-olds or pre-kindergarten educa- ity will not change. The aggregate filing will be tional programs for four-year-olds.4 allowed for a person or entity doing business in Oklahoma based on specified criteria as to Income Tax Refund Intercept domicile, property, payroll and sales in the state or to other nexus with the state.1 The intercept of individual income tax refunds by a state agency, municipal court, dis- Investment/Jobs Credit Not Allowed for New trict court and public housing authority for Wind Farms in 2017 collection of debt, unpaid fines and cost or final judgment of at least $50, was amended. The The Oklahoma income tax investment and procedure was amended to apply to any debt jobs credit was amended to no longer be of an individual owed to a state agency for allowed for new investment or job creation in health care or medical services.5 electric power generation by means of wind beginning Jan. 1, 2017. The change will not Refund Contribution to College Savings Plan apply to tax credits allowed for qualifying wind farm investment and job creation occur- A change in law was made to provide that a state income tax return shall contain a provi- ring prior to Jan. 1, 2017.2 sion to allow a tax refund to be contributed to Investment/Jobs Credit Modified a specified Oklahoma college savings plan account.6 The Oklahoma income tax investment and jobs credit was modified with respect to invest- Income Tax Return Checkoff Donations to Charity ments in qualified depreciable property and net increase in full-time-equivalent employees The requirement that individual and corpo- in a manufacturing operation, a qualified air- rate state income tax returns contain a provision to allow checkoff donations of refunds by

1656 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 taxpayers to the YMCA Youth and Govern- means of wind on or after Jan. 1, 2018. Pursu- ment program was renewed, subject to expira- ant to Article 10, Section 6B(D) of the Oklaho- tion after four years.7 ma Constitution an entity engaged in electric power generation by means of wind that has Income Tax Credits applied and qualified for the five-year manu- An amendment with respect to income tax facturing facility exemption under 68 O.S. credits, recapture or restoration of credits §2902 prior to Jan. 1, 2017, will be “grandfa- under the Internal Revenue Code and related thered” to be allowed the exemption for the matters was enacted to delete a conflict created five-year exemption period under terms and by prior repeal of other provisions.8 provisions of the statute applicable at the time of initial qualification, without regard to the SALES AND USE TAX subsequent changes in the definition of the Charity Fundraising Event Exemption term “manufacturing facility” under SB 498, that take effect on Jan. 1, 2017.11 An Oklahoma sales tax exemption was enacted allowing exemption for sales Personal Property Definition and by an organization or entity Freeport Exemption exempt from taxation under sec- The definition of “personal tion 501(c)(3) of the Internal Rev- property” was amended to in- enue Code which are related to a clude wares and merchandise, fundraising event sponsored by including oil, gas and petro- the organization or entity that New definitions leum products severed from does not exceed five consecutive for ‘base payroll’ realty, and gas in storage. This days and the sales are not in the is applicable for purposes of organization’s or entity’s regular and ‘initial payroll’ the “freeport” exemption from course of business. The exemp- ad valorem tax allowed under tion applies to tickets sold for were added Article 10, §6A of the Oklaho- admittance and items donated 9 pertaining to initial ma Constitution for property for sale at the event. located in the state temporarily County Sales Tax Approval applications for while in interstate commerce.12 The statutes authorizing a exemption filed Five-Year Manufacturing Facility county sales tax were amended Exemption; Increased Payroll to provide that every county on or after Requirement sales tax submitted to voters for Jan. 1, 2016. The five-year ad valorem tax approval will be required to exemption for new manufac- embrace one subject. A ballot turing facilities was also must apply to only one sales tax amended with respect to the levy for a specified purpose but requirement that a qualifying facility provide a may include multiple projects for that purpose.10 net increase in payroll. New definitions for AD VALOREM TAX “base payroll” and “initial payroll” were added pertaining to initial applications for exemption Five-Year Manufacturing Facility Exemption Not filed on or after Jan. 1, 2016. A manufacturing Allowed for New Wind Farms in 2017 facility will have the option of excluding from The five-year ad valorem tax exemption for its payroll any nonrecurring bonuses, exercise new manufacturing facilities was amended to of stock option or stock rights or other nonre- provide that effective Jan. 1, 2017, an entity curring, extraordinary items included in total engaged in electric power generation by means payroll numbers reported to the Oklahoma of wind shall not be defined as a qualifying Employment Security Commission. An amend- manufacturing concern for purposes of the ment was made providing special rules for exemption as authorized pursuant to Article payroll of a facility that applied for exemption 10, Section 6B of the Oklahoma Constitution or after 2012 and before 2016 for facilities engaged qualify as a “manufacturing facility,” as defined in the manufacturing NACIS industry number in 68 O. S. §2902; and no initial application for 324110 for petroleum refineries.13 exemption shall be filed by or accepted from an entity engaged in electric power generation by

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1657 County Assessor Notice Requirement for Decrease sion of right-of-way and lines, pumping sta- of Assessment Ratio tions, depots, shops and buildings locations, capital stock and personal property were The provisions of law for determining the amended. The Oklahoma Tax Commission will assessment ratio to compute taxable value of be required to provide to county assessors real or personal property were amended to schedules with detailed descriptions and val- provide that the county assessor may not ues by taxing jurisdiction as to all pipeline decrease the assessment ratio without first pro- company property to ensure property is report- viding notice to county officials, publishing ed for, and resulting tax revenues are attribut- notice and holding and attending three public ed to, the correct city, school district and county meetings to answer questions about the pro- where taxable property is located.18 posed decrease.14 Oklahoma Tax Commission Ad Valorem Tax Confidentiality of Information Division The treatment of lists of property and other The statutory provisions creating the Ad documents produced by a taxpayer to the Valorem Division of the Oklahoma Tax Com- assessor or county board of equalization as mission and stating its authority were amend- confidential was amended to apply to docu- ed to delete certain citizenship, age and experi- ments produced during discovery in any ad ence requirements for appointment of a direc- valorem tax appeal in the Court of Tax Review tor of the division, and to amend provisions or district court.15 governing administrative rules of the Oklaho- Cap on Tax Rolls Value and Tax in Appeals ma Tax Commission with respect to ad valorem tax.19 The requirement for preparation of tax rolls by the county assessor was amended to pro- FRANCHISE TAX vide that once total amount of taxes due is Aggregate Business Filing placed on the tax rolls the amount of taxes due or value of property cannot be increased by a The tax return and payment provisions for final judgment in any tax appeal. Also, if an the Oklahoma Income Tax Code, Franchise Tax appeal to district court is filed by a taxpayer Code and for secretary of state registered agent the amount of taxes payable by a taxpayer shall fees were amended to provide for an aggregate not exceed the amount based upon value origi- business filing and remittance, as described nally submitted by the assessor to the county above with respect to income tax.20 board of equalization, and if an appeal is filed BUSINESS ACTIVITY TAX by the county assessor the amount of taxes payable shall not exceed the amount based on Repeal of Business Activity Tax value assessed by the county assessor and submitted to the board of equalization.16 The Business Activity Tax (BAT) Code was repealed.21 Taxpayer and Assessor (not Board of Equalization) CIGARETTE STAMP TAX are Parties in District Court Appeal Cigarette Stamp Tax Credit The authority for an appeal in district court by a taxpayer or county assessor from an order The cigarette stamp tax requirements were of the county board of equalization was amend- amended to delete provisions for exchange of ed to provide that the county assessor is the new stamps for damaged or otherwise returned proper party defendant in any appeal brought or transferred cigarettes in certain instances. A by the taxpayer, the taxpayer is the proper credit will be given to a wholesaler for cigarettes party defendant in any appeal brought by the returned to a manufacturer, or not sold and county assessor, and the county board of equal- destroyed before an employee of the tax com- ization shall not be considered a party in any mission, upon application with an affidavit or litigation from an appeal.17 other proof required by the tax commission.22 Centrally Assessed Pipeline Company Information BINGO TAX to be Provided to County Assessors Charitable Organization Exemption The statutory provisions applicable to pipe- The state charity games tax relating to bingo line company property tax reporting and filing was amended to exempt a charitable healthcare of schedules with the Oklahoma Tax Commis-

1658 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 organization that is exempt from taxation under Tax Incentives Oversight and Evaluation Internal Revenue Code section 501(c)(3).23 An Incentive Evaluation Commission is to be TAX ADMINISTRATION, POLICY AND established to evaluate tax incentives intended PROCEDURE to encourage businesses to locate, expand, invest or remain in Oklahoma, or to hire Voluntary Compliance Initiative (Tax Amnesty) employees in Oklahoma. Each tax incentive A voluntary compliance initiative (tax am- must be evaluated at least once every four (4) nesty) program will be administered beginning years, unless determined exempt for having Sept. 14, 2015, and ending Nov. 13, 2015. The minimal fiscal impact.27 program applies to taxes due and payable for any tax period or periods ending before Jan. 1, 1. SB 463, adding 68 O. S. §283, effective Nov. 1, 2015. 2. SB 502, amending 68 O. S. 2011, §2357.4, effective Jan. 1, 2017. 2015. It does not apply to franchise tax. A tax- 3. SB 502, amending 68 O. S. 2011, §2357.4, effective Jan. 1, 2017. payer making payment of delinquent unpaid 4. HB 1693, amending 68 O. S. Supp. 2014, §2357.206; effective Jan. 1, 2016. tax will be entitled to a waiver of penalty and 5. HB 1825, amending 68 O. S. Supp. 2014; §205.2; effective May 8, interest and collection fees and costs if the tax- 2015. 6. SB 474, adding 68 O. S. §2368.27; effective Nov. 1, 2015. payer files delinquent returns and pays taxes 7. SB 575, amending 68 O. S. Supp. 2014, §2368.17; effective Nov. 1, due during the compliance initiative period. 2015. The statute provides that the tax commission 8. SB 247, amending 68 O. S. Supp. 2014, §2357; effective Nov. 1, 2015. may enter into a payment program by written 9. SB 336, amending 68 O. S. Supp. 2014, §1356; effective Nov. 1, agreement with a taxpayer. The tax commis- 2015 10. HB 1400, adding 68 O. S. §1354.36; effective Nov. 1, 2015. sion is authorized and directed to promulgate 11. SB 498 and SB 85, amending 68 O. S. §2902; effective Jan. 1, 2017. administrative rules detailing the terms and 12. HB 1962, amending 68 O S. 2011, §2807; effective May 6, 2015. 24 13. SB 387, amending 68 O. S. Supp. 2014, §2902; effective Jan. 1, other conditions of the program. 2016 14. HB 1407, adding 68 O S., §2819.1; effective Nov. 1, 2015. Technology Systems/Taxpayer Information 15. HB 1963, amending 68 O. S. 2011, §2835; effective May 6, 2015. Disclosure 16. HB 1963, amending 68 O. S. 2011, §§2868, 2884; effective May 6, 2015. The tax commission will be authorized to 17. HB 1743, amending 68 O. S. 2011, §2880.1; effective Nov. 1, 2015. 18. SB 335, amending 68 O. S. 2011, §2851, effective Nov. 1, 2015. release taxpayer information to technology 19. SB 214, amending 68 O. S. 2011, §2875; effective Nov. 1, 2015. system contractors used to authenticate income 20. SB 463, adding 68 O. S. §283, effective Nov. 1, 2015. 21. HB 2131; Repealing 68 O. S. §§1215 -1228; effective Nov. 1, 2015. tax returns and identify fraudulent refund 22. SB 248, amending 68 O. S. 2011, §305, 308; effective Nov. 1, 2015. claims.25 23. SB 574, amending 3A O. S. 2011, §421, 68 O. S. 2011, §1355; effective Nov. 1, 2015. Tax Commission Disclosure of Information 24. HB 2236, Amending 68 O. S. 2011, §216.3; effective May 20, 2015. The tax commission will be authorized to 25. HB 2235; Amending 68 O. S. 2011, §264; effective on or about Aug. 9, 2015. disclose otherwise confidential taxpayer infor- 26. SB 338 and SB 474, amending 68 O.S. Supp. 2014, §205, effective mation to the Oklahoma Health Care Authori- Nov. 1, 2015. ty for purposes of determining eligibility for 27. HB 2182, adding 62 O. S. §§7001-7005, effective Nov. 1, 2015. current or potential recipients of assistance from the Oklahoma Medicaid program, and About The Author disclose confidential taxpayer information to Sheppard F. Miers Jr. is a shareholder in the Tulsa

the state treasurer as necessary to implement the donations of income tax refunds to an office of Gable & Gotwals and practices in the areas Oklahoma college savings plan account.26 of federal and state taxation. The author acknowl- edges information and assistance he received on the subject of this article from Joanie Raff, legislative analyst of the Oklahoma Senate Staff.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1659 SECTION NOTE

Master Lawyers Section: Are You a Cobbler or a Lawyer? By Renée DeMoss

Remember the old saying that the cobbler’s children have no shoes? Law- yers seem to suffer from the “cobbler’s syndrome” when it comes to planning for their retirement or succession. While lawyers are well aware of the need to plan for unexpected events and for retirement and, in fact, even help their clients with such plans, they often fail to plan for themselves. What happens if a crisis strikes you? Who would protect your clients, cases, files, funds, your practice or your family if you suddenly become disabled or die? Would you be ready? No one is immune from life events, and thought- Transition and succession issues also arise ful succession planning benefits all lawyers, when lawyers have health or age problems that including confident young lawyers who really negatively affect their capacity to practice law. don’t believe they need a plan, busy solo law- The lawyer who is impaired may not recognize yers who may have no other lawyers in mind the need for help. All OBA lawyers and judges who could review their cases and close their should be committed to identifying impaired practices, musing older lawyers who see retire- lawyers and helping them get the resources ment in the near future and lawyers in larger they need, to protect both the public we serve firms who may have other lawyers available to and our fellow attorneys. take over cases, but who don’t know their practice and financial details. The general responsibility to deal with any kind of transition — whether it arises from an The Master Lawyers Section wants every emergency such as a lawyer’s sudden death or Oklahoma lawyer to know about the OBA disappearance or from a health, age or sub- Attorney Transitions Planning Handbook. This stance abuse issue — falls on the OBA Office of comprehensive guide provides everything the General Counsel and the Lawyers Helping Oklahoma lawyers need to plan for any future Lawyers Committee. These groups, however, possibility. It is prepared specifically in compli- have other ongoing responsibilities and can ance with Oklahoma law and puts in one place, use qualified assistance. right at your fingertips, everything you need to plan — closing checklists, sample forms, arti- In 2014 an OBA Transitions Task Force was cles, rules and resources. You can download set up to address issues surrounding transi- this 73-page handbook right now for free from tioning lawyers. The Master Lawyers Section the OBA website at my.OKBar.org, or the OBA intends to explore ways to serve as “volunteer will send you a copy for $10, which includes successors,” lawyers who are thoroughly postage. trained to step in when a fellow lawyer dies,

1660 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 disappears or needs to step away from the practice, either on an emergency basis or as part of a transition plan. Lawyers who have the OBA Attorney experience, expertise, time and understanding necessary to aid their fellow lawyers are well Transitions Planning equipped to fill this role. If you have ideas about this, consider joining the Master Law- Handbook yers Section to help in this project. And remember, when it comes to your own planning, be a lawyer — not a cobbler. How to Get a Copy

About The AuthorS o Download for free from my.OKBar.org o OBA Immediate Past President Send a $10 check (payable to the OBA) to Renée DeMoss practices in Tulsa OBA, P.O. Box 53036, Oklahoma City, and is chairperson-elect of the OK 73152. Include a note requesting the Master Lawyers Section. With the planning handbook. firm of GableGotwals, she focuses in the areas of insurance law as well as state and federal litigation. How to Join the Section She is a past president of the Okla- o Mail a $20 check (payable to the OBA) for homa Bar Foundation and has 2015 section dues to the OBA, P.O. Box chaired the OBA Litigation Section. She has served in 53036, Oklahoma City, OK 73152. leadership positions in numerous OBA committees and Include the section name on the check’s Tulsa civic organizations. She is a 1984 graduate of the memo line. OU College of Law.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Seventh Judicial District, Office 9 Oklahoma County, Oklahoma This vacancy is due to the resignation of the Honorable Bernard M. Jones effective July 30, 2015.

To be appointed to the office of District Judge, Office 9, Seventh Judicial District, one must be a registered voter of Oklahoma County Electoral Division One at the time (s) he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma.

Application forms can be obtained on line at www.oscn.net under Programs and the link to Judicial Nominating Commission, or by contacting Tammy Reaves at (405) 556-9862, and must be submitted to the Chairman of the Commission at the same address no later than 5 p.m., Friday, Sept. 11, 2015. If applications are mailed, they must be postmarked by midnight, Sept. 11, 2015. Stephen Beam, Chairman Oklahoma Judicial Nominating Commission

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1661

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1 BAR NEWS

Join the New Disability Law Section to Fight to Give the Disabled Their Voice Back By Mackenzie McDaniel

As Edmond lawyer Miles Mitzner pulled into the parking lot, he could not believe what he saw. The lot was full including the four handicap spots near the front of the building. However, none of handicap spots were being used for their intended purpose. Instead, they were being occupied by utility and service trucks causing those who were handicapped to have to park farther away and make a long and difficult trek into the building. “It was at this moment I realized people who are disabled have a very low voice in our community,” said Mr. Mitzner, creator and chair of the new OBA Disability Law Section. “I knew something had to be done and that is why I decided to create the Disability Law bar center and through conference call, but it is Section.” not too late to get involved. The new Disability Law Section is open to If you would like to become a member, their OBA members and to any person who has an next meeting will be Oct. 16 following a two- interest in serving the disabled and protecting day CLE on the topic of “Social Security and their rights. The section was designed to en- Disability Boot Camp” at the Oklahoma Bar courage and maximize participation of disabil- Center. Section members will receive a $25 ity lawyers in the operation and betterment of discount for the CLE. To sign-up, visit www. the OBA, promote the interests of the disabled okbar.org/members/CLE. The meeting focus and mentor and provide resources to those will be to introduce the officers elected during representing the disabled. the first meeting, to establish a meeting sched- HOW TO GET INVOLVED ule and to discuss the future of the section. The first meeting of the Disability Law Sec- Once you have joined the section, members tion was held Aug. 14 in Oklahoma City at the also have the opportunity to join one of its

How to Join the Disability Law Section Mail a $25 check (payable to the OBA) for 2015 and 2016 section dues to the OBA, P.O. Box 53036, Oklahoma City, OK 73152. Include the section name on the check’s memo line. Please note, the $25 covers your 2015 and 2016 dues.

1662 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 standing and special committees. These com- “We have become desensitized to the needs mittees are nominating, service to disability of the disabled, and they have become largely lawyers, mentoring, transitions, community forgotten,” Mr. Mitzner said. “Please help us contribution and membership. by joining the section and hopefully with our hard work and commitment to serving the Those wishing to join may mail a $25 check disabled we will be able to help them gain (payable to the OBA) for 2015 and 2016 sections their voice back.” dues to the OBA, P.O. Box 53036, Oklahoma City, OK 73152. Please include the section name Ms. McDaniel is an OBA communications spe- on the check’s memo line and note that the $25 cialist. will cover your 2015 and 2016 dues.

OKLAHOMA CORPORATION COMMISSION 2015 OIL AND GAS INSTITUTE Informative panel discussions and presentations covering topics vital to the energy sector of Oklahoma’s economy Friday, October 2, 2015 • 8:30 AM - 4:30 PM Oklahoma City University--Meinders School of Business 2700 McKinley Ave. Oklahoma City, Oklahoma 73106 LIMITED SEATING! Early registration $75 by Wednesday, September 2, 2015 or $85 at the door Registration form at www.occeweb.com – “Hot Topics” menu Send completed registration form and check: c/o Ms. Stacy Marsee, Office of Administrative Proceedings, Oklahoma Corporation Commission, P.O. Box 52000, Oklahoma City, Oklahoma 73152-2000. Checks payable to: “Oklahoma Corporation Commission, 2015 Oil and Gas Institute.” No credit cards please. Email s.marsee@occemail or call 405-521-2756 for answers to questions regarding registration. Phone • Fax 405-522-6397 • Email [email protected]. Send additional inquiries to Judge Andrew Dunn at [email protected]. Applications for continuing education accreditation will be filed with the Oklahoma Bar Association’s Mandatory Continuing Legal Education Commission and the American Association of Petroleum Landmanagers (AAPL). Event Sponsored by Oklahoma Corporation Commission • Oklahoma Bar Association • Oil and Gas Conservation Division Energy & Natural Resources Law Section • Office of Administrative Proceedings • Office of General Counsel

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1663 LEADERSHIP ACADEMY

Oklahoma Attorneys Selected for Leadership Academy

The Oklahoma Bar Associa- The academy class tion announces the 22 partici- will participate in pants of its fifth annual OBA sessions led by Leadership Academy class experienced leaders selected from applicants from various back- throughout the state. grounds including military officers, for- “Being a lawyer is a calling mer OBA presidents, that carries with it obligations leadership experts that transcend the mere deliv- and high profile ery of services,” said OBA of Phillips Murrah P.C.; public officials. President David Poarch of Clayton Cotton of Fenton, Norman. “The Oklahoma Bar OBA LEADERSHIP Fenton, Smith, Reneau & Association’s Leadership ACADEMY PARTICIPANTS Moon; Stephen Geries of Col- lins, Zorn & Wagner PC; John Academy prepares those who Del City want to serve our profession, Graves of the Law Office of Susan Rogers of the Oklaho- John H. Graves PLLC; Tessa our bar and our state by pro- ma State Board of Dentistry viding them with tools to help Hager of the Office of the them better communicate, Edmond Oklahoma Attorney General; motivate and succeed.” Rachel Morris of Evans & Jacob Jean of Christensen Law Davis PLLC Group PLLC; Patrick Lane of The OBA Leadership Acade- Miller Dollarhide PC; Karolina my will offer four sessions set El Reno Roberts of Elias, Books, Brown to begin in September 2015. Ashton Handley of The & Nelson; Ryan Schaller of The academy will conclude in Handley Law Center First American Title & Trust April 2016. Fairfax Co.; Russell Woody of Hartz- ABOUT THE LEADERSHIP Terry Mason Moore of og Conger Cason & Neville ACADEMY Moore Law Office Tulsa Originating from the OBA’s Norman Luke Barteaux of Fry & Elder; Leadership Conference in Claire Bailey of Bailey & Emily Crain of The Allison 2007, the academy is aimed at Poarch; Rachel Pappy of the Firm PLLC; Elizabeth developing the future leaders Law Offices of Rod Polston; Kathleen Pence of Pence, of the OBA by giving Oklaho- Jeanne Snider of the City Reddy & Feldhake PC; ma attorneys training in the Attorney’s Office, Norman; More information about core principles of effective Rebekah Taylor of Nichols the Leadership Academy is leadership and how to com- Law Firm available on the OBA website municate, motivate and suc- Oklahoma City at www.okbar.org/members/ ceed in their legal careers and leadership.aspx. also as community leaders. Amber Brock of Hornbeek Vitali & Braun; Cody Cooper

1664 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015

multinational companies; “An additional bonus for they expect efficiency, our members is that using speed and reliability. We this new system will help need to offer our members them practice and master a similar experience,” newer web-based technolo- Mr. Williams said. gies,” Mr. Williams said. “That will also help law- Because there is always a yers satisfy proposed learning curve when new Supreme Court rules that technology is implemented, lawyers demonstrate com- OBA staff is mobilizing to petency in tech. It’s time for ensure that members easily everyone to embrace the make the transition to the modern age of computing new improved MyOKBar. systems.” Staff in all departments are receiving training so they The new site will be up may better assist members and running for members who call with an issue. by the end of August. When fully implemented, Videos to Aid Transition The videos will feature step-by- it will be integrated with all OBA Management Assistance step tutorials on the new sys- OBA information applications, Program Director Jim Calloway tem, from how to log in to such as email and other mem- is planning a series of informa- uploading photos to searching ber communication tools. tional, how-to videos that will the database. Ms. Rasmussen is OBA assis- be easily accessible via the Web. tant communications director.

A Few Things You Can Do at MyOKBar

MyOKBar is the password-protected portion of the OBA website. When you’ve logged in with your bar number and PIN, it’s easy to:

• Change your official address • Enroll in OBA/CLE • Check your MCLE credits • Pay your annual dues • Tell us about yourself and your practice area so others can find you • Add your email address to receive electronic communications from the bar • Print a temporary bar card • Print receipts from previous dues and CLE payments • Find contact information for other bar members

1666 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1667

BOILING SPRINGS ‘15

LEGAL INSTITUTE {CLE } SPONSORED BY THE WOODWARD COUNTY BAR ASSOCIATION BOILING SPRINGS STATE PARK – WOODWARD, OK

Tuesday, September 15, 2015 CLE: 6.0/Including 1 Ethics. Registration fee: $175.00 (received by Sept. 10); $200.00 (walk-in). Lunch, dinner, & materials included in Registration Fee. Pre-registration is required for lunch and dinner. 8:00 a.m. Registration, Coffee & Doughnuts 1:00 p.m. Debtor/Creditor Law: Regan Strickland 9:00 a.m. Ethics Update: Joe Balkenbush, Beatty OBA Ethics Counsel 2:00 p.m. Insurance Law Update: Rex Travis 10:00 a.m. Trial By Jury: Garvin Isaacs 3:00 p.m. Update on OK Real Property Title Authority: Kraettli Epperson 11:00 a.m. Review of Drilling & Spacing Units & Secondary 4:00 p.m. Social Hour Recovery Units: John Mackechnie 5:00 p.m. Steak Dinner & Recognition of 12:00 p.m. Barbeque Lunch Honored Guests ------

2015 BOILING SPRINGS LEGAL INSTITUTE REGISTRATION FORM: Detach & Mail

Full Name: Firm Name: Address: Telephone: Facsimile: OBA Member? OBA Number (for CLE credit): I will be unable to attend the seminar. Please Send Materials Only ($50.00): Will you be joining us for the evening Social Hour and Steak Dinner? Yes No For further inquiry, please contact Kyle Domnick at: 580.256.5517 or [email protected]. Please make check payable to the Woodward County Bar Association and mail with this registration form to: Careylyn Talley, Post Office Box 1331, Woodward, OK 73802.

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF KIM KAKISH, SCBD #6276 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION

Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Dis- ciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Kim Kakish should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Okla- homa City, Oklahoma, at 9:30 a.m. on Tuesday, Aug. 25, 2015. Any person wishing to appear should contact Gina Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007. PROFESSIONAL RESPONSIBILITY TRIBUNAL

1668 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM You Are Not Alone.

Free 24-hour confidential assistance

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

800.364.7886 www.okbar.org/members/LawyersHelpingLawyers

Counseling and peer support are available. Some services free as a member benefit.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1669 BAR NEWS

Changes Proposed to the Rules Governing Disciplinary Proceedings Member Comments Requested

The following are proposed changes to the Rules review and consideration, the PRC may Governing Disciplinary Proceedings as proposed by take any of the following actions or any the Professional Responsibility Commission. These combination thereof: (1) Require the Gen- changes are currently under consideration by the eral Counsel to make a response; (2) OBA Board of Governors. The proposed changes Appoint an Investigator; (3) Appoint a spe- would give the Commission more discretion in the cial counsel to investigate and present the action it might take. case; or (4) Take such other steps as are necessary to facilitate the prompt resolu- Members of the OBA are encouraged to review the tion of the grievance. the Professional proposed changes and submit any comments by Responsibility Commission shall appoint a Oct. 23, 2015, 1) via email to RGDPRule3.3comments@ special counsel to investigate and present okbar.org or 2) mail hard copy comments to RGDP the case; Rule 3.3 Comments, OBA, P.O. Box 53036, Oklaho- ma City, OK 73152. (2) A member of the Professional Responsi- bility Commission, the President of the Rules Governing Disciplinary Proceedings. Oklahoma Bar Association with concur- Chapter 1, App. 1-A rence of the Board of Governors, shall Rule 3. General Counsel. appoint a special three (3) member Com- §3.3. Grievances Against the General Coun- mission to act on the grievance in confor- sel of the Association. mance with these Rules; (a) Whenever a grievance is filed, or informa- (3) A member of the Professional Responsi- tion is received by the Commission which bility Tribunal, all procedures mandated by could lead to the filing of a formal complaint these Rules shall be followed, except the against the General Counsel of the Associa- Supreme Court shall appoint a special Tri- tion, the members of the Commission, and the bunal Panel to hear the case in the event President and the Executive Director of the formal charges are filed. Association shall immediately be notified. (4) A member of the Supreme Court, the (b) If a disciplinary grievance is made against: matter shall be referred to the Oklahoma (1) The General Counsel or member of Council on Judicial Complaints. General Counsel’s staff alleging grounds (c) The President and the Executive Director for the imposition of discipline pursuant to of the Association shall be kept fully informed these Rules, the Professional Responsibility of all action taken by the Commission in the Commission (PRC) shall consider the mat- matter. ter on the basis of the grievance. After

1670 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 LEGISLATIVE NEWS

End of Session Legislative Report - Part 2 By Duchess Bartmess

This report is part two of the HB 1438 Requires continuing Legislative Monitoring Com- education courses for hospice mittee end of session report. administrators. You can find part one at OBJ 86 HB 1463 Procedures regarding 1475 (July 11, 2015). Listed here statewide stroke prevention are the balance of the measures system. being monitored by the committee that have been approved, HB 1834 Requires inquiry as other bills approved or vetoed to potential Indian lineage in which may be of interest to regard to taking child into cus- OBA members in their indi- tody. vidual practices and proposed constitutional amendments to HB 1874 Licensing require- be submitted to the vote of the ments for bail bondsmen. people. HB 1918 Addresses court Sunset bills, appropriation awarding custody to pre- bills and bills naming roads, sumed father. bridges or highways are not addressed in this HB 2157 Enacts Family Support Accountability report. Act. APPROVED BILLS MONITORED BY LMC SB 292 Modifies definition of abuse regarding Children and Family Law Issues: children. HB 1007 New law regarding obligation of reli- SB 486 Addresses Uniform Interstate Family gious official to solemnize a marriage. Support Act. HB 1042 Shared parenting time child support SB 60 Domestic violence issues including autho- provisions. rizing waivers and requiring training. HB 1078 Definitions and independent living SB 511 Creates Advisory Council on child home- plan provisions in Children’s Code. lessness. HB 1079 Allows foster parent to submit report to HB 1721 Creates “Oklahoma Unborn Child Pro- court for review hearing. tection from Dismemberment Abortion Act.” HB 1273 Definition of sexual exploitation in HB 2166 Confidentiality of records of Commis- Children’s Code. sion on Children and Youth. HB 1320 Amends provisions regarding termina- SB 180 Guardians ad litem and court-appoint- tion of parental rights. ment special advocates to meet with and observe child in appropriate settings, including current HB 1409 Time period regarding voluntary and placement. informed consent prior to abortion.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1671 General Government Issues: SB 676 Procedures necessary to obtain state authority in Clean Air Act. HB 1032 Exception to participation in executive sessions regarding property sales. CONSTITUTIONAL AMENDMENTS HB 1044 Creates Oklahoma Auto Salvage Act of Two proposed constitutional amendments 2015. were adopted and sent to the secretary of state for submission to the people for a vote: HB 1122 Addresses stray markings on documents submitted for filing with county clerk. HJR 1012 Regarding the right to engage in farm- ing and ranching practices. HB 1376 Relates to Public Employees Retire- ment System. SJR 31 Addresses the death penalty and methods of execution. HB 1484 Filing procedures for initiative and ref- erendum petitions. OTHER APPROVED BILLS BY CATEGORY HB 1567 Application of deductibles and co- Children payment or co-insurance provisions for state HB 1118 Creates the Child Care Center Bill of employees. Rights. HB 1681 Addresses procedures regarding the HB 1903 Provides exemption regarding children Government Tort Claims Act. under age of 18. HB 1749 Prohibits payroll deductions for mem- SB 115 Addresses criminal background checks bership in organization which collectively bar- for employees of medical foster homes. gains on behalf of its membership. SB 534 Creates Child Abuse Multi-disciplinary HB 1902 Establishes civil immunity for remov- Team Account Fund and funding. ing child from motor vehicle using forcible entry. SB 721 Addresses trafficking in children. HB 2182 Creates Incentive Evaluation Act. Teachers SB 23 Open records exception for business information kept by higher education institution. SB 20 Provides for certification of out-of-state teachers. SB 28 Modifies requirements for state purchasing director. SB 706 Amends evaluation policies relating to teacher effectiveness. SB 114 State agencies to provide change of address information to State Election Board. SB 711 Expands reasons and procedures regarding teacher dismissal or non-re-employment. Natural Resources Issues: Schools HB 1514 Addresses interested property owner in Concentrated Animal Feeding Operations Act. HB 1268 Requirements for personal financial literacy passport for high school graduation. OTHER VETOED BILLS HB 1521 Exclusions regarding teacher compen- The following measures were vetoed: sation. HB 1748 Public finance-imposed requirements HB 1684 Requires schools to establish sexual for disclosure of federal funds and analysis. abuse prevention programs. HB 1890 Addressed the Uniform Building Code HB 1691 Authorizes boards of education to con- Commission. tract with public or private nonsectarian entity SB 141 Motor vehicles fees for reports. to provide educational and administrative services for the school district. SB 352 Public bidding authorized local bid pref- erence. HB 2014 Creates Special Reserve School Resource Officer Act. SB 549 Modifies salaries of certain officers. HB 2069 Change of residency of children in fos- SB 591 Exceptions for professions and occupa- ter care. tions apprentices for registration.

1672 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 SB 5 Immunity from liability for education Insurance employees for use of reasonable force. HB 1515 New law regarding cancer therapy SB 505 Creates Statewide Virtual Charter School insurance claims. Board Revolving Funds. SB 439 Regulation of insurance adjusters. SB 630 Procedures regarding reading proficien- Labor cy in grades 1-3. HB 1001 Employment Security Act of 1980 cov- SB 782 Twenty-seven page bill regarding charter erage, tax and exemptions. schools requirements. HB 1375 Repeals Minimum Wage on Public Revenue and Taxation Works. HB 1400 Requires county sales tax levy submit- HB 1969 New law creating Oklahoma Employ- ted to county voters to embrace but one subject. ment First Act. HB 1407 Ad valorem taxation assessment per- Open Records centages and procedures. HB 1037 Adds to information to be available HB 1743 Clarifies Ad Valorem Tax Code proper pursuant to Oklahoma Open Records Act. parties on appeal. HB 1103 New law regarding report of conta- HB 2131 Repeals provisions in Business Activity gious or infectious animal diseases under Open Code. Records Act. HB 2235 Authorizes tax commission to contract Cities and Towns for technology systems, information and services to authenticate income tax returns and iden- HB 1322 New law regarding limits on cities and tify fraudulent refund claims. towns adoption of ordinances. HB 2236 Voluntary compliance initiative. HB 1456 Owner consent procedures for annexa- tion. SB 335 Requires detailed schedules of descriptions and corresponding values by taxing juris- SB 399 Modifies requirements for filing for diction of all pipeline company property listed municipal office. to be given to county assessor. SB 438 Municipal Campaign Finance and Finan- SB 336 Sales tax exemptions. cial Disclosure Act procedures. SB 575 Income tax refund checkoffs. SB 809 New law authorizing regulation by municipalities and other political subdivisions Motor Vehicles on issues incidental to oil and gas operations HB 2179 Modifies provisional driver license within its boundaries. requirements. Criminal Law SB 34 Allows online renewal for licenses and HB 1350 Stalking and victim protection orders. identification cards. HB 1396 Carrying a handgun applications. SB 390 Modifies restrictions for graduate Class D licenses. HB 1548 Courts to review and modify sentences. SB 451 Used motor vehicles. SB 101 Adds new provisions relating to eligibility for licensure of bail bondsmen. SB 465 Lien release provisions on motor vehicle certificates of title. SB 167 Zone of safety restrictions applicable to convicted sex offenders. Consumer Credit SB 578 Changes control of long-term care deci- SB 375 Addresses credit service organizations sions to Department of Corrections. and pawnshop licensing. SB 586 Authorizing bail bondsman of same SB 376 Addresses administrative provisions insurer to assist with apprehension. pursuant to Uniform Consumer Credit Code. SB 764 Authority of community sentencing SB 382 Procedures regarding supervised lenders. planning council.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1673 Intoxicating Liquor SB 417 New law adding procedures for Depart- ment of Agriculture regarding abandoned or SB 178 Intoxicating beverages regarding persons stolen property. 21 years old. SB 763 Creates Independent Living Act. SB 420 Creates licenses for small farm wineries with authority to bottle and sell wine. SB 767 Addresses Administrative Workers’ Com- pensation Act. SB 425 Forty-four page bill adding types of intoxicating liquors licenses authorized. As always, this is not a complete list of all new or amended laws coming out of this legisla- SB 690 New law regarding brewer sales agree- tive session. That list of governor-approved leg- ments. islation is available through www.oklegislature. Other Approved Bills of Note gov for anyone to check for laws of special interest not listed in this final report. HB 1577 Increases time allow landlord to return security deposit. Also, because 2015 was the first general session of the 55th Oklahoma Legislature, many HB 2168 Twenty-eight page bill modifying measures introduced were not acted upon. license or certificate qualifications for several They, pursuant to legislative rules, can be acted professions and occupations. upon during the next general session in 2016. HB 2233 Supreme Court revolving funds. Any bills designated for the committee to monitor which are still considered active will SB 249 Adds to authority to State Board of continue to be watched in the next session. Behavioral Health Licensure. SB 312 Additional special election procedures About The Author and limitations. Ms. Bartmess practices in Okla- SB 370 Adds regulation of accounting business homa City and chairs the Legisla- office during sale or transfer. tive Monitoring Committee. She SB 377 Creates Oklahoma Mortgage Secure and can be reached at duchessb@ Fair Enforcement Licensing Act. swbell.net.

1674 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 PHOTO HIGHLIGHTS

Sovereignty Symposium XXVIII Oklahoma City • June 3-4, 2015

Oklahoma State Treasurer Ken Miller (left) and Oklahoma Supreme Court Vice-Chief Justice Doug Combs.

Keynote Speaker Baroness Emma Nicholson of Winterbourne and Oklahoma Supreme Court Justice Noma Gurich.

Lt. Col. Christopher C. Straub, U.S. Army, (ret.), Vice President, AMAR U.S. (left); OBA President-Elect Garvin Isaacs Jr.; Dr. Terry Neese.

Dr. Jim Collard and Sovereignty Award Winner Gayleen Rabakukk Chairman John “Rocky” and Oklahoma Supreme Court Justice Barrett of the Citizen James Winchester. Potawatomi Nation.

All photos by Stu Ostler

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1675 Kevin Washburn, Assistant Secretary of the Interior for Indian Affairs (left) and Oklahoma Supreme Court Chief Justice John Reif.

East Central University President and OBA member John R. Hargrave (left) and Judge Jerome Holmes, U.S. Court of Appeals for the 10th Circuit.

OCU President Robert Henry, playwright Mary Kathryn Nagle, playwright and Sovereignty Symposium Honored One Suzan Shown Harjo and John Echohawk, Executive Director, Native American Rights Fund. Lady Chairman Amber Toppah of the Kiowa Tribe of Oklahoma presents a blanket to Baroness Emma Nicholson.

Baroness Emma Nicholson with Chief Justice John Reif.

Oklahoma Supreme Court Justice Steven Taylor and Gov. Mary Fallin.

1676 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Suzan Shown Harjo receiving a painting from Brent Greenwood.

Associate District Judge Elizabeth Brown, Adair County, and attorney C. Steven Hager, Oklahoma Indian Legal Services and winner of the 2015 Hargrave Prize for faculty writing.

Brad Morse, Dean of the Faculty of Law, Maj. Gen. William P. Bowden, U.S. Air Force (ret.). Thompson Rivers University, British Columbia, Canada; Judge Jerry Goodman, Oklahoma Court of Civil Appeals, Tulsa; and Professor Lindsay Robertson, OU College of Law.

Dr. Jim Collard, Citizen Potawatomi Nation Director of Planning and Economic Development; Derek Osborn, Legislative Assistant for Sen. James Lankford; Pat Neeley, Undersecretary of Commerce for Business Affairs, Chickasaw Nation; Jon Chiappe, Director, Research and Economic Analysis, Oklahoma Department of Commerce; Oklahoma Secretary of State Chris Benge; Oklahoma State Treasurer Ken Miller; David Nimmo, CEO/President, Chickasaw Nation Industries; Judge Brian Goree, Oklahoma Court of Civil Appeals, Oklahoma City.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1677 BAR NEWS

2016 OBA Board of Governors Vacancies

Nominating Petition deadline: 5 p.m. Friday, Sept. 4, 2015 OFFICERS Summary of Nominations Rules Not less than 60 days prior to the annual meeting, President Elect 25 or more voting members of the OBA within the Current: Garvin Isaacs Jr., Oklahoma City Supreme Court Judicial District from which the Mr. Isaacs automatically becomes member of the Board of Governors is to be elected OBA president Jan. 1, 2016 that year, shall file with the executive director, a (One-year term: 2016) signed petition (which may be in parts) nominating Nominees: Vacant a candidate for the office of member of the Board of Vice President Governors for and from such judicial district, or one Current: Glenn A. Devoll, Enid or more county bar associations within the judicial (One-year term: 2016) district may file a nominating resolution nominating Nominee: Vacant such a candidate. Not less than 60 days prior to the annual meeting, BOARD OF GOVERNORS 50 or more voting members of the OBA from any Supreme Court Judicial District Three or all judicial districts shall file with the executive Current: Robert D. Gifford II, Oklahoma City director, a signed petition nominating a candidate Oklahoma County to the office of member at-large on the Board of (Three-year term: 2016-2018) Governors, or three or more county bars may file Nominee: Vacant appropriate resolutions nominating a candidate for this office. Supreme Court Judicial District Four Current: Douglas L. Jackson, Enid Not less than 60 days before the opening of the Alfalfa, Beaver, Beckham, Blaine, Cimarron, Custer, annual meeting, 50 or more voting members of the Dewey, Ellis, Garfield, Harper, Kingfisher, Major, association may file with the executive director a Roger Mills, Texas, Washita, Woods and Woodward signed petition nominating a candidate for the office (Three-year term: 2016-2018) of president-elect or vice president or three or more county bar associations may file appropriate resolu- Nomi Vacant nee: tions nominating a candidate for the office. Supreme Court Judicial District Five If no one has filed for one of the vacancies, nomina- Current: Rickey Joe Knighton II, Norman tions to any of the above offices shall be received Carter, Cleveland, Garvin, Grady, Jefferson, Love, from the House of Delegates on a petition signed by McClain, Murray and Stephens counties not less than 30 delegates certified to and in atten- (Three-year term: 2016-2018) dance at the session at which the election is held. Nominee: Vacant See Article II and Article III of OBA Bylaws for Member At Large complete information regarding offices, positions, Current: Richard Stevens, Norman nominations and election procedure. (Three-year term: 2016-2018) Nominee: Vacant Elections for contested positions will be held at the House of Delegates meeting Nov. 4, during the Nov. 4-6 OBA Annual Meeting. Terms of the present OBA officers and governors will terminate Dec. 31, 2015. Nomination and resolution forms can be found at www.okbar.org/members/BOG/BOGvacancies.

1678 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 FROM THE EXECUTIVE DIRECTOR

Open a Law Office and Discover Value in Your OBA Membership By John Morris Williams

It has been a long practicing law in the time since I opened a 21st century. Things law office. I remember are a changin’ and my wise aunt asking me before you hang out a how it was going when shingle (either literally I opened my own office. or digitally), you best My response was that I call the OBA MAP was fearful. She quickly staff at 405-416-7008 replied, “You would be or 800-522-8065. a fool not to be.” If you make any Opening an office can money, you are going to be a daunting task for need a banking relation- someone who has never ship. If you handle managed a business, someone else’s money made a payroll or (including unearned client retainers), the acquired office space. great practice tips from Jim Cal- Oklahoma Rules of Professional There can be many moving loway’s blog and much, much Conduct 1.15 require that you parts to starting your own more. You would be a fool to have a trust account in an practice. But it was through open a law office in Oklahoma approved bank and that your this experience that I learned and not utilize these great trust account be set up as an the value of my professional resources. Sure you can find IOLTA account (Interest on Law- associations. While I do not most of the information on your yers Trust Account). The Okla- agree with the American Bar own, but when you are in the homa Bar Foundation can assist Association on every issue, I business of selling time, this you in locating an approved can honestly say it has the best becomes a “no brainer.” publications on opening a law bank. Also, your bank will need office. Having access to its pub- The OBA MAP also can give to be in compliance with section lications is one of the best you invaluable assistance in K of Rule 1.15 for the purpose of values of membership. picking billing and timekeeping overdraft reporting compliance. software, software to create The OBA general counsel main- The Oklahoma Bar Association forms and documents and tains a list of banks approved for has unparalleled resources to information on marketing in the section K compliance. open a law office. The OBA digital age. Two full-time staff Your banking relationship will Management Assistance Pro- members devote their time be helpful in compliance with gram (MAP) offers an extensive everyday to exploring, testing withholding taxes for employees array of products and services. and communicating the latest in and making quarterly tax depos- You can borrow books from its law office technology, trends in its. Failure to withhold and lending library, attend “Opening the practice of law and under- timely remit withholding taxes Your Practice” programming standing the complexities in that includes free lunch and get has been the basis for serious

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1679 disciplinary action by the Okla- viders for all these services. You open, expand or improve your homa Supreme Court. Setting can review the list of providers practice. From software selection up your banking relationships, and much more on the OBA to marketing in the digital age tax accountings and your office website at www.okbar.org/ the OBA has the resources and procedures to ensure compliance members/Members/Benefits. tools to assist you. Don’t open with all state and federal tax your office without us! Opening your own law office laws and regulations is not only can be both an exciting and good business, it is essential to overwhelming task. When it avoid potential loss of licensure. comes to helping you get orga- Lastly, you may need to nized and running an efficient, acquire health, disability or loss professional office, the OBA To contact Executive Director of income insurance, malpractice offers unmatched knowledge Williams, email him at johnw@ insurance and set up your own and resources. If there is ever a okbar.org. retirement plan. The OBA has time to realize the value of your endorsed relationships with pro- membership, it is when you

INVESTIGATOR OFFICE OF THE GENERAL COUNSEL OKLAHOMA BAR ASSOCIATION

Applications are now being accepted for an experienced Investigator for the Office of the General Counsel, Oklahoma Bar Association. Investigators review allegations against members of the bar which may involve violations of the rules of professional conduct. Duties include interviewing witnesses, reviewing legal documents and financial statements, preparing reports, and testifying at disciplinary and reinstatement hearings before the Professional Responsibility Tribunal. Applicants should have a degree from an accred- ited university or comparable work experience, possess excellent writing skills, and be able to work independently. Some travel may be required. Law enforcement, accounting, legal, or financial crimes investigation experience strongly preferred. Salary negotiable, depending upon credentials and experience. Excellent benefits including retirement, health, and life insurance. Résumés and cover letters should be submitted by Septem- ber 1, 2015 to Gina L. Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152 or electronically to [email protected].

THE OKLAHOMA BAR ASSOCIATION IS AN EQUAL OPPORTUNITY EMPLOYER

1680 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 LAW PRACTICE TIPS

The Smoke Clears… …After the Practice Management Shootout at the OK Bar By Jim Calloway

A great, enthusiastic crowd ferent ways. Billing practices need it. That is true for attended our Practice Manage- can be challenging for many almost every lawyer ment Shootout at the OK Bar at reasons, but most completed reading this. the 2015 OBA Solo & Small law firm bills look alike. How- (I will now pause for a Firm Conference. Read on to ever, the visual interface to do moment while you mentally learn how we are sharing this those tasks can be set up in catalog reasons why your law information with the other many different ways. But there firm is the exception to that OBA members. are also differences between the rule.) product — being hosted in the First of all, thanks to the rep- cloud versus installed on your But for most readers, you resentatives for our six partici- office server is one difference. are not the exception. The term pants: MyCase, Firm Manager, “paperless office” may still Firm Central, Clio, RocketMat- We also saw at the conference bother some lawyers. Many ter and PracticeMaster/Tabs3. some products may have syn- believe computers have caused It is more difficult to cover chronization with other soft- more printed pages than they several topics in 10 minutes ware packages the firm may have reduced. But digital work- than you may think and there already use. The focus of the flow makes sense for you on is more pressure in a competi- product can be different as many levels. tive environment. well. One can have detailed built-in financial reports that Your future demands instant We had seven presentations one law firm really wants while access to documents when you in the shootout. I took the first another may focus on client need them, a complete backup 10 minutes to make my case as communication and collabora- of all important information in to why I believe practice man- tion tools. That is why there are your client files, less time spent agement software is critical and often free trials or money-back looking for lost files or lost the materials supplied to the guarantees. One important con- documents, the ability to attendees included an essay sideration is the interface. You make a billing entry or re- from me on that topic. should select a product with a minder quickly whether at I think the one thing all the visual interface you find com- the office or through a mobile attendees learned is that even fortable because you will be device and the ability to easily though there are several differ- looking at that interface every share documents with clients, ent practice management solu- day for many hours each week. co-counsel or opposing coun- tions, they share much in com- sel electronically. If you already have a great mon. Organizing scanned doc- practice management software Practice management soft- uments into client folders and solution that is working well ware, including the cloud- subfolders, managing a calen- for you, I congratulate you. If based services, lets you dar and providing for note- you don’t have practice man- improve in all of those areas. taking within each client file agement software now, you Those who attended the can only be done in a few dif-

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1681 Practice Management Shootout Invest the time and research. with the change and will regret now have much more informa- Make a choice. And then invest waiting so long to make the tion about what tool to select. the time learning how to use transition. We want to share that informa- your new practice manage- Downloading the file we are tion with you. ment tool whether it is providing for you is the first Just log into MyOKBar and step. Do that today. Then you you will find a PDF file named can set your deadline to arrive “Shootout at the OK Bar Mate- at a final decision. I have spent rials” right there on the initial a lot of time advising Oklaho- page. It is a free, 86-page file Just log into ma lawyers about improving containing my essay about MyOKBar and you their practices and my advice to practice management software you is that this is a most impor- and the presentation materials will find a PDF file tant step because otherwise from our shootout participants. named “Shootout at the inertia and familiar practices It won’t be posted there forever will keep you from making as we make other changes, so OK Bar Materials” right this big change. A free trial is go ahead and download it there on the initial page. important as is watching online now. videos and reading the online It is a free, 86-page file reviews. From my point of view, I don’t care as much which containing my essay Whether opening your own product or service you select as about practice law practice or maintaining a much as I care that you do well established one, these tools select one. This can be a chal- management software are important for your future lenging decision, involving and the presentation and for your future clients. an investment of otherwise In the next issue of the Okla- billable hours. It is easy to materials from homa Bar Journal, I will cover research and research and then our shootout the processes and procedures get back to the legal work that involved in implementing digi- you have to do for clients. participants. tal work flow using practice Once you put in the initial few management software. hours of research, putting in another day of research is not through online video tutorials, Mr. Calloway is OBA Manage- likely to benefit you. The right telephone calls with the help- ment Assistance Program director. answer for your firm consists of desk, reading written materi- Need a quick answer to a tech setting the date on which you als or having a consultant to problem or help resolving a man- make this decision. Our six help you with the initial setup agement dilemma? Contact him shootout vendors are not the and training. at 405-416-7008, 800-522-8065 only tools that do this, but they I hope that after several or [email protected]. It’s a free are all fine choices. months you will be comfortable member benefit!

1682 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 ETHICS & PROFESSIONAL RESPONSIBILITY

Things Have Changed! What You Need to Know About Flat Fees, Nonrefundable Retainers and Trust Accounts By Joe Balkenbush

Oklahoma attorneys have ment with a number of his cli- requisite to perform the often used fee agreements ents. He then deposited the legal service properly; which provided for a flat fee, retainers in his operating 2) the likelihood, if apparent nonrefundable retainer stating account. Subsequently, he dis- to the client, that the that the fee was earned upon bursed all or some of the funds acceptance of the particu- receipt. Upon execution of the from the operating account for lar employment will pre- fee agreement and payment of personal and business expenses clude other employment the retainer, the attorney would prior to “earning” the amounts by the lawyer; deposit the funds in his/her he disbursed. operating account. If a portion 3) the fee customarily Let’s take a look at the appli- of the retainer needed to be charged in the locality for cable Oklahoma Rules of Pro- refunded, the attorney would similar legal services; fessional Conduct (ORPC) pay the refund out of their when considering flat fees, operating account. 4) the amount involved and nonrefundable retainers and the results obtained; Per the Supreme Court of trust accounts. They are: Oklahoma in State ex rel. Okla- 5) the time limitations • Rule 1.5 titled “Fees” imposed by the client or homa Bar Association v. Weigel,1 by the circumstances; that practice is clearly no longer • Rule 1.15 titled “Safekeep- appropriate. In Weigel, the court ing Property” and 6) the nature and length of stated in its ruling that “The the professional relation- • Rule 1.16 titled “Declining use of the term ‘nonrefundable ship with the client; retainer’ to represent an or Terminating Representa- advance payment of fees for tion.” 7) the experience, reputation, and ability of the legal services the attorney will Rule 1.5 provides in pertinent lawyer or lawyers per- perform in the future is imper- part: missible. Such fees may be des- forming the services; and a) A lawyer shall not make ignated as fixed fees but cannot 8) whether the fee is fixed or an agreement for, charge impair a client’s rights under contingent. Rule 1.16(d). The fees are not or collect an unreasonable ‘nonrefundable’ because if the fee or an unreasonable b) The scope of the represen- attorney withdraws or is termi- amount for expenses. The tation and the basis or nated before completing the factors to be considered in rate of the fee and work, the attorney must refund determining the reason- expenses for which the the unearned portion of the ableness of a fee include client will be responsible advance.” the following: shall be communicated to the client, preferably in 1) the time and labor The facts of the case relevant writing, before or within required, the novelty and to this article are that Mr. Wei- a reasonable time after difficulty of the questions gel had entered into a flat fee commencing the repre- nonrefundable retainer agree- involved, and the skill

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1683 sentation, except when retain papers relating the lawyer will charge a to the client to the regularly represented cli- extent permitted by Be sure to: ent on the same basis or other law. Delete the word “nonrefundable” rate. Any changes in the • When Rules 1.5, 1.15 and basis or rate of the fee or from your fee agreements. 1.16 are read in conjunction expenses shall also be • Include language in your fee agree- with the court’s ruling in communicated to the cli- Weigel, it is clear that attor- ment regarding the procedure/plan ent. neys who use fee agree- concerning how the retainer will be Rule 1.15 provides in perti- ments that provide for pay- withdrawn. nent part: ment of a flat fee must • Deposit all retainers in your trust deposit the retainer into a) A lawyer shall hold prop- account. their trust account. The erty of clients or third word “nonrefundable” • Only take funds from your trust persons that is in a law- should not be used. Last, account after the work has been yer’s possession in con- the funds may only be performed. nection with a representa- withdrawn when the fees tion separate from the • If representation is terminated for are earned. lawyer’s own property. whatever reason, refund any unearned Funds shall be kept in a I used the “thesaurus” tab portion of the retainer to the client separate account main- on my computer to try to promptly. tained in the state where find another word for non- the lawyer’s office is situ- refundable. Even the com- ated, or elsewhere with puter does not have another The next question is when are the written consent of the word. If the Supreme Court rul- the fees earned? Fees are client or third person. ing in Weigel isn’t enough for earned when work is per- Other property shall be you, surely the fact that the the- formed. The retainer may be identified as such and saurus couldn’t find a replace- withdrawn in stages, but there appropriately safeguard- ment is a good reason not to must be work that is done to ed. Complete records of use the word! justify the withdrawal. such account funds and FLAT FEES/FIXED FEES other property shall be Here are a couple of exam- kept by the lawyer and Flat fees (fixed fees) have ples: shall be preserved for a been used by attorneys and cli- • In a criminal case, the period of five years after ents for centuries. Essentially, attorney agrees to repre- termination of the repre- they are fees paid by a client at sent a client up to the presentation. the outset of a matter intended liminary hearing for a flat to be the entire fee attributable Rule 1.16 provides in perti- fee. Assume there are four to a specific task. Fees paid in nent part: separate “stages” — the advance for this purpose are client meeting, initial d) Upon termination of rep- intended to cover a specified court appearance, investi- resentation, a lawyer shall amount of work by the attorney gation and entry of a plea. take steps to the extent for a particular matter. The It would be reasonable to reasonably practicable to attorney usually does not withdraw 25 percent of protect a client’s interests, receive any additional fee even the retainer at the end of such as giving reasonable if more work is required, unless each stage. notice to the client, allow- specifically agreed to by the cli- ing time for employment ent. Clients often prefer fees to • In a bankruptcy case, of other counsel, surren- be a specified sum because it there might be five stages. dering papers and prop- allows them to know the total The initial client meeting, erty to which the client is cost for legal services in preparation of the appro- entitled and refunding advance, permitting them to priate pleadings, review any advance payment of budget based on a fixed sum, and execution of the fee or expenses that has rather than face potentially pleadings by the client, not been earned or unlimited hourly fees that may appearance at a Section incurred. The lawyer may exceed their ability to pay. 341 meeting of creditors

1684 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 and the discharge in TERMINATION OF opinion went on to provide that bankruptcy. Therefore, 20 REPRESENTATION BEFORE “the likelihood of enforcement percent of the retainer THE CASE IS CONCLUDED of these types of nonrefundable could be withdrawn at Seems pretty uncomplicated retainers is enhanced by imple- each stage. so far, right? The problem arises menting certain safeguards.” Essentially, per Ethics Opinion The point is to develop a rea- if representation is terminated 317, flat fee nonrefundable sonable procedure/plan to before the case is concluded. retainer agreements would be withdraw the retainer as work That situation invokes applica- acceptable (not an ORPC viola- is performed and fees are tion of Rule 1.16 (d). In the tion) so long as “certain safe- earned. Both the Office of the criminal case scenario above, guards” were used. General Counsel and I strongly per the flat fee agreement, the advise you to include the pro- attorney agreed to represent the The Supreme Court’s ruling cedure/plan to withdraw the client up to preliminary hear- in Weigel at least clarifies Ethics retainer in your fee agreement. ing. If representation is termi- Opinion No. 317. As set out That way the client has been nated after the initial court above, the Supreme Court informed and has agreed to the appearance (two stages com- ruled that “the use of the term procedure/plan in writing. pleted), the attorney has only ‘nonrefundable retainer’ to rep- They won’t be able to later suc- performed 50 percent of the resent an advance payment of cessfully object to how the work he/she agreed to per- fees for hours of legal services retainer was withdrawn. form. Therefore, 50 percent of that the attorney will perform the retainer should be refund- in the future is impermissible. Again, the attorney and client ed. If the attorney has followed Such fees may be designated as can agree to use any reasonable the above procedure, there fixed fees, but cannot impair a method to withdraw the retain- would still be 50 percent of the client’s rights under Rule er. It does not need to be tied to retainer in a trust account. 1.16(d). The fees are not ‘nonre- hours worked, but it must be fundable’ because if the attor- reasonable. So long as there is a Regarding the bankruptcy ney withdraws or is terminated written agreement between the case example above, assume before completing the work, the attorney and client and the that the client won the lottery attorney must refund the method of withdrawal is rea- after the Section 341 hearing. unearned portion of the sonable, you will not run afoul Obviously, the case would have advance.” of the ORPC. to be dismissed. Therefore, the attorney has earned 80 percent The defendant attorney in It all goes back to the fact that (four stages completed) of the Weigel attempted to rely upon fees must be earned to be taken. retainer fee, and 20 percent of Ethics Opinion 317 as support If no work has been done, then the retainer should be refund- for his actions, arguing that the fees have not been earned.2 ed. opinion addressed “availability Regarding Rule 1.15 titled Safe- fees, fixed fees and hourly fees” keeping Property (generically Rules 1.16 and 1.15(b) require that were designated as a non- known as the rule regarding a lawyer to refund the refundable retainer in the fee trust accounts), the safe and unearned retainer and to do so agreement. As is evident from simple interpretation is that all in a timely manner. the above, even if it was previ- unearned legal fees must be On Dec. 13, 2002, OBA Ethics ously acceptable, it is no longer. deposited in your trust account, Opinion No. 317 was issued. including but not limited to all The opinion dealt with (among Mr. Balkenbush is OBA Ethics retainers, whether they are flat other things) the issue of flat Counsel. Have an ethics question? fees or hourly fees. Only money fee nonrefundable retainers. It’s a member benefit and all inqui- that has been earned may be Ethics Opinion 317 stated in ries are confidential and privi- removed from your trust relevant part that “the LEC ledged. Contact Mr. Balkenbush at account and deposited into (Legal Ethics Commission) does [email protected] or 405-416-7055; your operating account. not offer an opinion regarding 800-522-8065.

the enforceable nature of fee 1. 2014 OK 4, 321 P.3d 168 (Okla. 2014). contracts containing nonre- 2. See ORPC 1.5 and the comments to the fundable ‘engagement fee’ or rule. ‘fixed fee’ provisions.” The

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1685 BOARD OF GOVERNORS ACTIONS Meeting Summaries

The Oklahoma Bar Association ment for the Ask A Lawyer TV YLD chair-elect to discuss 2016 Board of Governors met at the show, spoke at the Oklahoma programs. Enid Event Center and Conven- Paralegal Association spring BOARD MEMBER REPORTS tion Hall in Enid on April 24, seminar and attended the 2015. funeral of former board Governor Gifford reported member Jerry McCombs. REPORT OF THE he encouraged Oklahoma PRESIDENT REPORT OF THE House of Representative PAST PRESIDENT committee members to vote President Poarch reported against SB 583, presented at he attended OBA Day at the Past President DeMoss the OBA CLE “Movie Night Capitol, Cleveland County Bar reported she participated in at the Supreme Court” that Association luncheon, Annual the Oklahoma’s Promise pro- showed Breaker Morant, Meeting planning meeting gram presentation to eighth attended the Oklahoma Coun- and President’s Leadership Ini- graders at Central Junior High ty Bar Association board of tiative meeting. He filmed a in Tulsa, contacted legislators directors meeting and OCU segment for the OBA Ask A regarding proposed bills and Law’s grand opening. Gover- Lawyer TV show on OETA and worked on planning for the nor Gotwals reported he participated in the ribbon-cut- Master Lawyers Section and attended OBA Day at the ting ceremony for the grand Litigation Section. Capitol, Tulsa County Bar opening of OCU Law’s new Foundation/Legal Aid Servic- REPORT OF THE building and in the presenta- es of Oklahoma meeting, EXECUTIVE DIRECTOR tion of awards at the Supreme Quality Assurance Panel for Court Courtroom to school Executive Director Williams the Tulsa County Family Court children (K-12) who won OBA reported he attended OBA meeting, special meeting for Law Day contests. He spoke Day at the Capitol, Oklahoma Tulsa Central High School at both the OU Law Pro Bono Bar Foundation retreat, Law Foundation to discuss a bas- Awards ceremony and at the Day contest awards presenta- ketball championship ring swearing in of new admittees. tion at the Supreme Court fundraiser, OBA ADR Section REPORT OF THE Courtroom, funeral of former CLE via teleconference at VICE PRESIDENT board member Jerry Mc- OSU-Tulsa, Tulsa County Bar Combs, monthly OBA staff Association Family Law Sec- Vice President Devoll report- celebration, Oklahoma’s Prom- tion meeting and TCBA board ed he worked on preparations ise presentation in Tulsa and of directors meeting. Gover- for hosting the April Board of new admittee ceremonies. He nor Hicks reported he attend- Governors meeting in Enid spoke at the Pittsburg County ed OBA Day at the Capitol, and contacted state legislators Bar Association meeting and April Tulsa County Bar Asso- on several occasions regarding met with the visiting Pennsyl- ciation Executive Committee pending legislation. He attend- vania MCLE team. He partici- meeting, TCBA board meeting ed the Garfield County Bar pated in meetings with the Bar and teleconference of the ABA Association meeting and OBA Association Technology Com- Metropolitan Bar Conference Bench and Bar Committee mittee, President-Elect Isaacs Executive Committee. He met meeting via telephone. to present the president’s with Tulsa County Presiding book, President Poarch and Judge Carlos Chappelle REPORT OF THE staff about the OBA Annual regarding pending legislative PRESIDENT-ELECT Meeting, staff directors, Legis- issues affecting the judiciary, President-Elect Isaacs report- lative Monitoring Committee, reviewed minutes of the ed he participated in OBA Day Bench and Bar Committee and March 31 OBA Access to Jus- at the Capitol, filmed a seg- tice Committee meeting

1686 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 chaired by Michael Speck, dation. Governor Stevens Governor Hicks reported the chaired the April Tulsa County reported he attended OBA Access to Justice Committee Bar Foundation Charity Golf Day at the Capitol and the met to brainstorm ideas and Committee meeting to finalize April Cleveland County Bar will hold its next meeting June details for the May 18 event Association meeting. Gover- 2. Executive Director Williams and assisted in obtaining a nor Tucker reported he attend- reported the Solo & Small commendation from Gov. ed the Muskogee County Bar Firm Conference has been very Fallin in honor of the 50-year Association meeting and coun- successful this year in recruit- anniversary of practice by ty bar spring banquet plan- ing sponsors. One of the confer- Tulsa lawyer Sam Daniel Sr. ning meeting. Governor ence sessions will be a “shoot Governor Jackson reported he Weedn reported he attended out” of six vendors offering attended OBA Day at the Cap- OBA Day at the Capitol, products for solo and small itol and the Garfield County reported Law Day contest firm lawyers. Governor Knight- Bar Association meeting. Gov- results to the Ottawa County on reported the OBA Law- ernor Kinslow reported he Bar Association and met related Education program participated in OBA Day at the with the Ottawa County Law recently hosted Oklahoma Capitol, encouraged Oklaho- Day chair regarding the local Close Up, a four-day govern- ma House of Representatives contest. ment studies program for high committee members to vote school students designed to against SB 583 and attended YOUNG LAWYERS strengthen knowledge of the the Clients’ Security Fund DIVISION REPORT political process. Registration Committee meeting. Governor Governor McGill, unable to is now open for the Hatton W. Knighton reported he attend- attend the meeting, reported Sumners Teacher Institute that ed OBA Day at the Capitol, via email she participated in will be offered by the OBA in April Cleveland County Bar the New Attorney Orientation the summer. The institute, Association meeting, Lawyers Committee teleconference, made possible with a grant Helping Lawyers Assistance from the Sumners Fou Kick it Forward sponsorship ndation, Program meeting, Law-related provides teachers with materi- meetings, ABA YLD Four Cor- Education Committee meeting als to enrich social studies pro- ners Leadership Conference in and Law Day program at the grams. He also said the LRE Aspen and YLD membership OU College of Law for gifted Committee discussed bringing event at Pete’s Place in McAl- and talented students at Long- back the Supreme Court ester. She attended OBA Day fellow Middle School. Gover- Teacher of the Year award. at the Capitol, dedication of nor Marshall reported he It was reported the Diversity attended OBA Day at the Cap- the Conger Courtroom at Committee is seeking nomi- itol and the Pottawatomie OCU Law School and spoke nations for OBA Diversity County Bar Association April at the new admittee swearing- Awards. Governor Stevens meeting. Governor Porter in ceremonies. reported the Rules of Profes- reported she attended Day at BOARD LIAISON REPORTS sional Conduct Committee is the Capitol, OCU Law’s grand still working on its proposal opening, Canadian County Bar Governor Gotwals reported for changes to one last issue. Association March meeting, the Professionalism Commit- Vice President Devoll and Women in Law Committee tee discussed its last sympo- Executive Director Williams meeting and swearing-in of sium and will be voting at its reported the Bench and Bar new attorneys. She moderated next meeting on whether to Committee met and discussed and presented at an OBA-CLE hold another symposium this pending legislation. Governor program and presented CLE year. The committee is also Kinslow reported the Clients’ for the Oklahoma County considering submitting regular Security Fund Committee met Criminal Defense Lawyers articles to the Oklahoma Bar to review submitted claims. Association. Governor Sain Journal and working with Governor Porter reported the reported he attended the Oklahoma’s law schools. Gov- Women in Law Committee is McCurtain County Bar Asso- ernor Knighton reported the working to finalize its keynote ciation luncheon, McCurtain Lawyers Helping Lawyers speaker for its conference this Memorial Hospital Founda- Committee is discussing fund- year. She said the committee tion board meeting. He also raising and is struggling with joined with Lawyers Fighting conducted an auction for the how to motivate committee Hunger to provide Easter din- Edmond Public Schools Foun- members to attend meetings. ners to 500 families in need in

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1687 the Tulsa area. Committee LEGISLATIVE REPORT ing. He helped finalize plans members collected and distrib- for the board meeting in Enid. uted more than 5,000 Easter Executive Director Williams REPORT OF THE eggs filled with candy to fami- briefed the board on pending PRESIDENT-ELECT lies attending the event. legislation. REPORT OF THE RESOLUTIONS President-Elect Isaacs report- GENERAL COUNSEL ed he spoke on the history The board voted to issue res- of trial by jury at both the Executive Director Williams olutions of appreciation to the Tri-County Bar Association reported General Counsel Gungoll Jackson law firm, (Choctaw, McCurtain and Hendryx was out on medical Garfield County Bar Associa- Pushmataha counties) meeting leave. A written report of tion, County Bar President in Idabel and the Pittsburg Professional Responsibility Karig Culver, Vice President County Bar Association Law Commission actions and OBA Glenn Devoll and Gungoll Day event in McAlester. He disciplinary matters will be Jackson Administrative Assis- also attended the Oklahoma submitted at the next meeting. tant Jackie McFarland for their County Bar Association Law hospitality and efforts in host- Day luncheon. NOMINEES FOR THE ing a Thursday evening recep- OKLAHOMA DOMESTIC REPORT OF THE tion and dinner at Groendyke VIOLENCE FATALITY EXECUTIVE DIRECTOR Lodge in conjunction with the REVIEW BOARD board’s meeting in Enid Fri- Executive Director Williams The board voted to ratify the day morning. reported he attended a meet- email vote to approve the o ing with the software supplier nominations of Karen Mueller, regarding progress on the new Oklahoma City; Cindee Pichot, The Oklahoma Bar Association management software, Semi- Noble; and Heather Cline, Board of Governors met at The nole County Law Day event, Oklahoma City; to the attor- Price Tower in Bartlesville on Tulsa County Law Day event, ney general for consideration May 29, 2015. Payne County Law Day din- and appointment of one to the ner, Muskogee County Law Oklahoma Domestic Violence REPORT OF THE Day dinner, meetings on legis- Fatality Review Board. The PRESIDENT lative issues, meeting with the term expires June 30, 2017. Mexican consul, Access to Jus- President Poarch reported he tice Commission meeting, DISTRICT ATTORNEYS spoke at the Seminole County Bench and Bar Committee COUNCIL APPOINTMENT Law Day luncheon and moni- meeting, meeting on a new tored legislative initiatives and The board approved Presi- HVAC system, monthly staff budgeting issues as the session dent Poarch’s recommenda- celebration, staff directors closed. He attended the dinner tion to reappoint John M. meeting and Washington Wampler, Duke, to the District for the Board of Governors County Bar Association din- Attorneys Council. The term hosted by the Garfield County ner. He also met with East expires June 30, 2018. Bar Association in Enid, Okla- Central University’s president, homa County Bar Association instructor and students in the PROFESSIONAL Law Day luncheon, Oklahoma paralegal program and gave RESPONSIBILITY Conference on Aging VIP re- them a tour of the bar center. TRIBUNAL ception and Master Lawyers APPOINTMENTS Section meeting. BOARD MEMBER REPORTS The board approved Presi- REPORT OF THE Governor Gifford, unable to dent Poarch’s recommenda- VICE PRESIDENT attend the meeting, reported tion to reappoint Tom Gruber, via email he attended the din- Oklahoma City; Mary Quinn- Vice President Devoll report- ner hosted by the Garfield Cooper, Tulsa; Gerald L. ed he attended the Bench and County Bar Association and Hilsher, Tulsa; and M. Joe Bar Committee meeting, din- Oklahoma County Bar Associ- Crosthwait, Midwest City; to ner for the Board of Governors ation board of directors meet- the Professional Responsibility hosted by the Garfield County ing. He participated in the Tribunal. Their terms expire Bar Association and Garfield CLE Movie Night with the June 30, 2018. County Bar Association meet- Supreme Court. Governor

1688 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Gotwals reported he attended ed the Cleveland County Bar School to Lillian Swingle for two Quality Assurance Panel Association meeting and Law- her artwork entered in the meetings, Tulsa County Bar yers Helping Lawyers Com- OBA Law Day contest. He Association/Tulsa County Bar mittee Assistance Program attended the Ottawa County Foundation Law Day lun- meeting. He also presented Bar Association meeting. cheon at the Tulsa Country two hours of continuing Club, Alternative Dispute Res- education to the Oklahoma YOUNG LAWYERS olution Section meeting and Municipal Court Clerks Asso- DIVISION REPORT CLE via video conference at ciation. Governor Marshall Governor McGill reported OSU-Tulsa, Inns of Court reported he attended the Gar- she chaired the YLD April spring banquet honoring the field County Bar Association board meeting and participat- life of Judge Jim Ellison, OBA reception, Seminole County ed in a YLD conference call. Master Lawyers Section lunch Bar Association luncheon and She attended several meetings and learn on technology tips Muskogee County Bar Associ- about the Kick it Forward Pro- presented by OBA Manage- ation Law Day banquet. Gov- gram and ABA YLD spring ment Assistance Program ernor Porter reported she conference in Tampa, Florida. Director Jim Calloway, Skia- attended the Tri-County Bar took Schools official building Association Law Day banquet BOARD LIAISON REPORTS dedication for the Brooks Wal- in Idabel and ReMerge lun- Past President DeMoss ton Activity Center, TCBA cheon on behalf of the Women reported the Law Schools Family Law Section meeting, in Law Committee. Governor Committee has completed its TCBA board of directors meet- Sain reported he attended the annual visits to the three law ing, TCBA Capital Campaign McCurtain Memorial Hospital schools. Governor Gotwals Steering Committee meeting Foundation Board meeting, reported the Professionalism and TCBA Brown Bag CLE Tri-County Bar Association that featured Chief Justice Law Day banquet and McCur- Committee voted to hold a John F. Reif speaking on “The tain County Bar Association symposium this year. The Separation of Powers.” He also luncheon. Governor Stevens committee is working on a new conducted exit interviews for reported he attended the definition of professionalism seniors graduating from Tulsa Cleveland County Bar Associ- and is reevaluating committee Central High School. Gover- ation meeting, CCBA Law Day goals. Governor Knighton nor Hicks reported he attend- lecture, CCBA Ask A Lawyer, reported the Law-related Edu- ed the Law Day luncheon for CCBA Law Day reception and cation Committee is working Tulsa County, TU law school Garfield County Bar Associa- on criteria for a Teacher of the alumni gala at Gilcrease Muse- tion reception for the Board of Year Award. He also reported um, TCBA Executive Commit- Governors. Governor Tucker the Lawyers Helping Lawyers tee meeting and TCBA board reported he attended the Committee will hold a discus- of directors meeting. He also Muskogee County Bar spring sion group and have a booth chaired the TCBF golf tourna- banquet held in conjunction at the Solo & Small Firm Con- ment at Bailey Ranch Golf with Law Day, TU Law alumni ference. The committee also Club raising about $30,000 for gala, Muskogee County Bar plans to offer a breakfast meet- charities and participated in a Association monthly meeting ing with a speaker during the teleconference board meeting and board event hosted by the OBA Annual Meeting. Gover- of the National Conference of Garfield County Bar Associa- nor McGill reported the Diver- Bar Presidents Metro Bar Cau- tion. He also presented one sity Committee is currently cus. Governor Jackson report- hour of continuing education accepting nominations for ed he attended the Garfield at the Oklahoma Clerks and OBA Diversity Awards and County Bar Association May Treasurers Conference held in plans to hold two social events meeting, county bar’s recep- McAlester. Governor Weedn this year. Governor Porter tion and dinner for the Board reported he hosted Law Day reported the Women in Law of Governors and Civil Proce- activities at his firm in Ottawa Committee will hold its con- dure and Evidence Code Com- County, helped organize the ference Sept. 17 at the Embas- mittee meeting. Governor trial of Wolf v. Pig presented by sy Suites in Oklahoma City Kinslow reported he attended lawyers to local elementary and has selected Carey the Comanche County Law students who served as the Lohrenz, first female naval Day luncheon. Governor jury and presented a bar asso- aviator to fly the F-14 Tomcat Knighton reported he attend- ciation award at Miami High in the U.S. military, as the key-

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1689 note speaker. She said the during out-of-state travel to lease with the Council on Judi- committee has formed a part- speak at the Workers’ Com- cial Complaints was expected, nership with ReMerge, a pensation Section conference. but it was not available for the female diversion program in board meeting. The board APPLICATION TO Oklahoma County designed to decided to table any action SUSPEND MEMBERS FOR transform pregnant women until a document is received. FAILURE TO PAY 2015 DUES and mothers facing incarcera- PROFESSIONAL tion into productive communi- The board authorized Execu- RESPONSIBILITY ty citizens. Executive Director tive Director Williams to sub- TRIBUNAL APPOINTMENT Williams reported the Bench mit a recommendation to the and Bar Committee discussed Supreme Court to suspend The board approved Presi- the judicial budget approved OBA members for nonpay- dent Poarch’s recommenda- by the Legislature at its recent ment of 2015 dues. tion to appoint to the PRT meeting. Governor Kinslow D. Kenyon “Ken” Williams, APPLICATION TO reported a task force has been Tulsa, to complete the unex- SUSPEND MEMBERS organized for the Client’s pired term of William FOR FAILURE TO COMPLY Security Fund, and the task LaSorsa, who has moved force will submit a proposal to WITH 2014 MCLE REQUIREMENTS out of state. The term will the Board of Governors for expire June 30, 2016. consideration by the House The board authorized Execu- RESOLUTIONS of Delegates. tive Director Williams to sub- REPORT OF THE mit a recommendation to the The board voted to issue res- GENERAL COUNSEL Supreme Court to suspend olutions of appreciation to the OBA members for failure to Washington County Bar Asso- General Counsel Hendryx comply with 2014 MCLE ciation and Linda Thomas, reported a written report of requirements. Bartlesville, for their hospitali- Professional Responsibility APPLICATION TO STRIKE ty and efforts in hosting a Commission actions and OBA MEMBERS FOR FAILURE Thursday evening reception disciplinary matters for April TO PAY 2014 DUES and dinner at the Bartlesville was submitted to the board for Community Center in conjunc- its review. She said the PRC The board authorized Execu- tion with the board’s meeting will hold its annual meeting tive Director Williams to sub- in Bartlesville Friday morning. in late June and will elect new mit a recommendation to the JUDICIAL NOMINATING leaders. She briefed board Supreme Court to strike OBA COMMISSION ELECTION members on the PRC’s com- members for failure to rein- position, purpose and how it state after suspension for non- President Poarch reported operates. The Professional payment of 2014 dues. candidates for the District 5 Responsibility Tribunal will position are Jim Priest, Chad also meet in June. APPLICATION TO STRIKE MEMBERS FOR FAILURE Taylor, Jim Webb, Nancy Par- GOVERNMENT AND TO COMPLY WITH 2013 rott, Michael Githens, Lance ADMINISTRATIVE LAW MCLE REQUIREMENTS Leffel and Douglas Parr. Dis- PRACTICE SECTION DUES trict 6 candidates are Melissa INCREASE The board authorized Execu- DeLacerda, David Ezzell and tive Director Williams to sub- Fenton Ramey. Ballots will be The board approved the mit a recommendation to the mailed to OBA members in increase of Government and Supreme Court to strike OBA those districts on June 5, 2015, Administrative Law Practice members for failure to rein- and must be returned by Section dues from $10 to $15 state after suspension for fail- 5 p.m. on June 19, 2015. annually beginning in 2016 as ure to comply with 2013 LAW DAY 2015 REPORT requested by the section. MCLE requirements. ETHICS COUNSEL TRAVEL COUNCIL ON JUDICIAL Board members viewed a EXPENSES COMPLAINTS LEASE video showing a brief over- RENEWAL view of the statewide Law The board approved the Day projects accomplished by reimbursement for meals of Executive Director Williams the Law Day Committee, with Ethics Counsel Joe Balkenbush reported a modification on the assistance from the OBA Com-

1690 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 munications Department. Law REPORT OF THE PAST meeting. Governor Hicks Day Committee Chairs Jenni- PRESIDENT reported he attended the Tulsa fer Prilliman and Richard County Bar Association YLD Vreeland reviewed the results Past President DeMoss Trivia Night fundraising event achieved in conducting con- reported she attended the and Tulsa County Bar Founda- tests for school children, pro- Washington County Bar Asso- tion board meeting. Governor ducing a one-hour TV show ciation reception and gave the Jackson reported he attended and offering free legal advice. welcome at the Sovereignty the Garfield County Bar Asso- Report highlights were a total Symposium. She prepared a ciation meeting and Washing- of 1,199 contest entries (17 per- report for the Board of Editors ton County Bar Association cent increase), nearly 1,300 meeting. meeting. He also monitored people given legal advice by REPORT OF THE civil procedure litigation. Gov- 200+ volunteer lawyers and 29 EXECUTIVE DIRECTOR ernor Kinslow reported he county bar associations partici- attended the dinner hosted by pating. Law Day activities, Executive Director Williams the Washington County Bar which boost public under- reported he attended the Association and continued to standing of the role of law and Young Lawyers Division board work on the Clients’ Security the legal profession, resulted meeting, monthly staff celebra- Fund Task Force. Governor in more than 3.8 million peo- tion, Sovereignty Symposium, Knighton reported he attend- ple reached using a wide vari- Legal Intern Committee meet- ed the Washington County Bar ety of promotion and educa- ing, Oklahoma County Bar Association dinner and OBA tional efforts. Estimated cost Association annual luncheon, Law-related Education Com- was $14 per 1,000 impressions. meeting with Vice Chief Jus- mittee meeting. Governor The board thanked the com- tice Combs and Jim Calloway Marshall reported he attended mittee leaders for their hard to discuss joint OBA and Judi- the Washington County Bar work and impressive results. cial Conference programming, Association reception and din- conference with Mike Moniz ner in addition to the OBA o regarding renewal of the ABA Legal Intern Committee meet- Retirement Program market- The Oklahoma Bar Association ing. Governor Porter reported ing agreement, new associa- Board of Governors met at The she attended the Washington tion management software Hard Rock Hotel and Casino in County Bar Association dinner meeting, planning meeting Tulsa on June 18, 2015, in con- and OBA Women in Law with President Poarch and junction with the Solo & Small Committee meeting. Governor President-Elect Isaacs, meeting Firm Conference. Sain reported he attended with the Legislative Monitor- the McCurtain County Bar REPORT OF THE ing Committee chair regarding Association monthly meeting. PRESIDENT committee organization for Governor Stevens reported 2016, Bench and Bar Commit- President Poarch reported he he attended the Washington tee meeting and meeting with County reception for the attended the National Judicial representatives from J2 and College in Reno, Nevada, Board of Governors, Cleveland Dobson Communications County Bar Association meet- Washington County bar recep- regarding the sale of Dobson tion in Bartlesville and Okla- ing and Rules of Professional back up services. He also con- Conduct Committee meeting. homa County Bar Association ducted staff evaluations and awards luncheon. Governor Tucker reported carried out Judicial Nominat- he attended the Washington REPORT OF THE ing Commission elections. County Bar Association Board VICE PRESIDENT BOARD MEMBER REPORTS of Governors reception. Gov- ernor Weedn reported he Vice President Devoll report- Governor Gotwals reported attended the Ottawa County ed he attended the Garfield he attended the reception and Bar Association monthly meet- County Bar Association meet- dinner hosted by the Washing- ing, Board of Governors recep- ing and the Washington County ton County Bar Association tion and dinner hosted by the Bar Association board dinner. and Tulsa County Bar Associa- Washington County Bar Asso- tion Family Law Section meet- ciation and Sovereignty Sym- ing. He chaired the Tulsa posium in Oklahoma City. County Board Foundation

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1691 YOUNG LAWYERS REPORT OF THE PROPOSED RULES GOV- DIVISION REPORT GENERAL COUNSEL ERNING DISCIPLINARY PROCEEDINGS RULE 3.3 Governor McGill reported General Counsel Hendryx CHANGES she chaired the YLD May reported a written report of board meeting and attended Professional Responsibility Professional Responsibility the Washington County Bar Commission actions and OBA Commission Chair Angela Association Board of Gover- disciplinary matters for May Ailes-Bahm reviewed the pro- nors reception, YLD volunteer was submitted to the board for posed changes to Rule 3.3 event at HOBY and YLD Kick its review. regarding grievances against it Forward meeting. the OBA general counsel. She CREATION OF DISABILITY explained the changes would BOARD LIAISON REPORTS LAW SECTION allow the PRC more options Governor Marshall reported Edmond attorney Miles in what action to take should the Legal Intern Committee Mitzner submitted petitions information be received that held an intern swearing-in cer- with the required number of could lead to a grievance emony at OCU School of Law. signatures to create a section being filed. Ms. Ailes-Bahm The law school offered an and proposed bylaws. He said requested minor capitalization hour-long tour. Governor Por- the group plans to offer a CLE changes to the document sub- ter reported the Women in seminar in September. The mitted to ensure consistent Law Committee is putting board approved the creation of style. The board voted to pub- together panelists for its con- the section and approved the lish the proposed rule changes ference on Sept. 17. Governor proposed bylaws with the in the Oklahoma Bar Journal Knighton reported the Law- amendment to change the and to ask for member com- related Education Committee annual section dues from $20 ments within 90 days. Bar will review the young adult to $25. The board also voted to members will have the option guide for updates needed as amend the section name on of emailing their comments or a result of legislation passed the proposed bylaws to the mailing them. during the recent legislative OBA Disability Law Section to BUDGET COMMITTEE session. Committee members eliminate inconsistency in the APPOINTMENTS are working on a plan to documents submitted. increase participation for a The board approved Presi- CLE ANNUAL REPORT School/Teacher of the Year dent-Elect Isaacs’s appoint- award. The LRE program is OBA Educational Programs ments to the Budget Com- conducting the Hatton Sumner Director Krug reviewed the mittee. Appointments from Institute this week for teach- 2014 results of OBA continu- the Board of Governors are ers. Governor Stevens reporting legal education efforts. She President Poarch, Past Presi- ed the Rules of Professional reported last year the OBA dent DeMoss, Governor Kin- Conduct Committee is work- switched its online vendor to slow and Governor Weedn. ing on amendments to the Peachtree, and the payment Appointments from the House comments. He also said the method changed to a flat fee, of Delegates are Judge Rick Bench and Bar Committee is which increased revenue. She Bozarth, Taloga; Gerald Den- discussing conducting an also reported there was a sig- nis, Antlers; Richard Sitzman, appellate judicial survey. nificant increase in attendance Oklahoma City; Judge Barbara Governor Gotwals reported of live programs and of the 790 Swinton, Oklahoma City; the Professionalism Commit- Oklahoma CLE providers, the and Judge Patricia Parrish, tee continues to work on a OBA still ranks first. She said in Oklahoma City. committee mission statement, the future instead of offering NEXT MEETING definition of professionalism the same live program in both and professionalism pledge Oklahoma City and Tulsa, the The Board of Governors met that it envisions could be department will try simulcast- July 15, 2015, by conference taken in conjunction with the ing to reduce expenses. call. A summary of those oath of attorney at swearing- actions will be published after in ceremonies. the minutes are approved. The next board meeting will be at 10 a.m. Friday, Aug. 21, 2015, in Oklahoma City.

1692 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 BAR FOUNDATION NEWS

OBF Announces Court Grants in 10 Counties By Jack L. Brown

Requests totaling $141,876 its Grants and Awards Pro- • District Court of Stephens came to the Oklahoma Bar gram, to meet the fundamental County: Video courtroom Foundation’s grant committee needs of attorneys and liti- arraignment system. last month from judges at gants to present their legal $12,640 county courts across the state. issues to the courts,” said OBF • District Court of Roger The OBF’s Court Grant Pro- Grants & Awards Chair Judge Mills County: Digital gram is unique not only to Millie Otey of Tulsa. “The OBF courtroom recording/ Oklahoma but is the only is proud to help provide state- video system. $14,110 program like it in the nation. wide support for the administration of justice.” Trustees • District Court of Seminole With court budgets being cut voted approval of $90,775 in County: Digital courtroom to the bare minimum, these court grants at its July 10 sound system. $6,470 court grants provide much board meeting. needed assistance for our • District Court of Harper state’s courts and judges to 2015 OBF COURT GRANTS County: Courtroom tools/ acquire the technology or • District Court of Pittsburg furnishings equipment. other needs in their court- County: Digital courtroom $21,145 rooms to assist them in recording system. $5,820 hearings and trials. Most of the funds for court projects are made possible through cy pres awards to the OBF. This provides specific funding for courtroom technology, capital improvements and extraordinary expenses that cannot be met by existing funding. Cy pres is a court-approved method of distributing damage funds remaining from class action lawsuits to appropriate charitable causes. “The foundation has been gratified to have been the recipient of cy The District Court of Pittsburg County in McAlester was one of 10 pres funds and has uti- district courts that received grants totaling $90,775 from the OBF Trustees. lized those funds, through

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1693 • District Court of Cotton • District Court Ellis Coun- County: Digital courtroom ty: Courtroom digital About The Author recording system. $5,245 recording system. $4,525 Jack L. Brown • District Court of Musk- • District Court of Tulsa practices in Tulsa ogee County: Courtroom County: Netbook comput- and serves as OBF video system. $5,525 ers to be used to automate president. He can be case management. $11,045 reached at jbrown@ • District Court of Noble jonesgotcher.com. County: Courtroom digital Since 2009 the OBF has audio system. $4,250 awarded $543,927 in court grants to 46 counties.

New Direction of the OBF

The Oklahoma Bar Foundation is in the works of ties. Our grantees simply cannot operate without implementing an exciting fund development and donations, and we need to increase their funding. communications program. The OBF hired bar fund- I am excited about the potential we have to raise raising expert Dennis Dorgan earlier in the year to money for law-related charities across the state,” begin a strategy for a fundraising initiative. Part of Ms. Jones said. that strategy was to hire a director of development She will be working with a development committee and communications to raise money for the founda- comprised of OBF Trustees from all over the state: tion’s grantees, court awards and scholarships. Candice Jones was Co-Chair - Gabe Bass, OKC hired in March of this Co-Chair - Alan Souter, Tulsa year. She comes to the Steve Barghols, OKC OBF from The Oklaho- Jennifer Castillo, OKC man Media Co. where Gary Farabough, Ardmore she worked as a mar- Amber Peckio Garrett, Tulsa keting consultant and Patrick O’Hara, Edmond previously worked as Bret Smith, Muskogee the vice president of Kara Smith, OKC resource development John Morris Williams, OKC at United Way of Nor- Joe Vorndran, Shawnee man. She has a Bache- “The board is very excited and supportive of the Candice Jones, OBF lor of Arts in journalism new direction of the OBF, and we look forward to Director of Development and a minor in sociolo- sharing our mission and increasing fundraising and Communications gy from the University efforts to help so many low-income Oklahomans of Oklahoma. gain access to representation in our legal system,” said OBF President Jack Brown. “My heart is in nonprofit and joining the bar foundation has been a perfect fit for me. I have been vis- The foundation will be focusing on outreach this iting our grantees over the past few months, and I fall and will look to partner with law firms, attorneys am touched and truly honored to be a part of this and legal organizations to raise money for enhanced mission. We are beyond blessed to have these grant programs. organizations doing good works in our communi-

1694 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 OBF2013 Fellow OBF and Community Community Fellow Fellow Enrollment Enrollment Form Form

Name, UGroupNITE TOname, PROVIDE Firm or HELP other FOR affiliation THOSE ______IN NEED AS AN OBF COMMUNITY FELLOW

Mailing and OBA Delivery Section or Caddressommittee ______Law Firm/Office County Bar Assoc. IOLTA Bank Corporation/Business Other Group

Group Name: City/State/Zip ______Contact: Phone Ma ______iling & Delivery Address: Email ______City/State/Zip: FELLOWPhone: ENROLLMENT ONLY E-‐Mail:

The OBF Community Fellows is a new benevolent program of the Oklahoma Bar ___ I want toFou be ndanat OBFion al Fellowlowing ornowgani –z Billations meand latergroups___ to $100 unite enclosed with individu andal billlaw annuallyyers who are OBF llows Fe to support a commo n c ause: The promotion of justice, provision of ___ Total amountlaw-rel enclosedated serv i$1,000ces, and advancement of publi___c awa Newreness lawyerand 1stbetter year,und $25ersta enclosednding of & bill annually as stated ___ New lawyerthe law.within 3 years, $50 enclosed and bill annually as stated ___ I want to be recognized at the highest level of The OB F Provides Funding For: Sustaining OBF Fellow NEEDS and will YOUR continue HELP my TO annual ___ I want to be recognized at the highest • Free legal assistance for the poor and elderly gift of $100 SERVE OKLAHOMANS Leadership level of Benefactor Fellow and Safe haven for the abused (initial pledge shouldIN be NEED complete)! annually contrbute• at least $300 Protection and legal assistance for children (initial pledge• should be complete) ___ My charitable contribution to help offset the • Public law-‐related education programs, including programs Grant Program CrisisGIVE TODAY AT for school children WWW.OKBARFOUNDATION.ORG • Other activities that improve the quality of justice for COMMUNITY FELLOWall Oklahomans ENROLLMENT ONLY o OBA Section or Committee o Law firm/office o County Bar Association o IOLTA Bank o Corporation/Business o Other Group Choose from three tiersofOBF Community Fellow support to pledge your group’s help: $ Patron $2,500 or more per year Choose from three tiers of OBF Community Fellow support to pledge your group’s help: $ Partner $1,000 -‐ $2,499 per year $______Patron $2,500 $ Supporter $250 -‐ $999 per year $______Partner $1,000 $______Supporter $250 Signature &D ate: OBA Bar# Print Name & Title: Signature and Date ______OBA Bar # ______OBF Sponsor: Print Name Please and Title kindly ______make checks payable to: Oklahoma Bar Foundation P O Box 53036 Oklahoma City OK 73152-‐3036

OBF Sponsor (If applicable) ______Phone: (405) 416-‐7070 • E-‐Mail: [email protected]• Kindly make checks payable to: Oklahoma Bar Foundation• PO Box 53036 Oklahoma City, OK 73152-3036

405-416-7070 • [email protected] • www.okbarfoundation.org

THANK YOU FOR YOUR GENEROSITY AND SUPPORT!

Vol.Vol. 86 86 — — No. No. 21 5 —— 8/15/20152/14/2015 TheThe Oklahoma Oklahoma Bar Bar Journal Journal 1695399 YOUNG LAWYERS DIVISION

Kickball Tournament to Help Struggling Lawyers Pay Bar Dues By LeAnne McGill

On Saturday, Aug. 29, the members for helping us Young Lawyers Division with the tournament. Carol will hold its first Kick It Manning, Brandon Haynie Forward Kickball Tourna- and Joanna Hensley have ment at Wiley Post Park, been instrumental in help- 2021 S. Robinson, in Okla- ing us plan this event. homa City. Teams will join I hope you will take this together and vie for the honor opportunity to come support of “Most Spirited Team,” come attend the tournament. It the Kick It Forward program “Most Points in a Game,” will be a fun event and a great and spend a Saturday having a “Lowest Points in a Game” opportunity to network with great time with the YLD board as well as first, second and lawyers, family and friends of directors and all of our third place. And all of this from across the state. Admis- kickball players. You can buy fun will be to support the sion for spectators is only $10, spectator tickets in advance Kick It Forward program. and you do not have to be an by emailing me at LeAnne@ The Kick It Forward program attorney to attend. Pinky’s McGillRodgers.com for an was started in 2014 after the Rolling Fresh Food Truck and order form, or you can buy YLD realized there was a need Parking Lot Party Food Truck them the day of the event. for a financial assistance pro- will both be there to serve us gram for attorneys who are their delicious food, and Choc struggling to pay their annual Beer will be on site to serve bar dues. The program pro- beverages. We will have a win- vides financial assistance to ners and a losers bracket, so attorneys who cannot afford to there will be plenty of kickball pay their bar dues. Attorneys action to watch. must apply to receive this Thus far, the generous spon- Like OBA/YLD on Facebook assistance, and the committee sors of this tournament have facebook.com/OBAYLD reviews the applications on an helped the Kick It Forward annual basis. The number of Committee raise more than About The Author attorneys who receive assis- $7,000. Thanks to our Grand tance depends on the funding Slam sponsors Stuart & Clover LeAnne McGill available. To increase support and Hall Estill, we are well on practices in for this program and to allow our way to our goal of $10,000, Edmond and us to assist more attorneys, we but we still need your help! If serves as the YLD chairperson. created the Kick It Forward you are interested in being a Kickball Tournament. She may be con- sponsor, please let me know. I tacted at leanne@ Even if you did not register a also want to give a special mcgillrodgers.com. team, we encourage you to thank you to several OBA staff

1696 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 OKLAHOMA BAR ASSOCIATION YOUNG LAWYERS DIVISION PRESENTS

1st Annual Young Lawyers Division Kick It Forward KICKBALL TOURNAMENT Benefitting the OBA YLD Kick It Forward Program AUGUST 29 • WILEY POST PARK • 9 A.M. WWW.OKBAR.ORG/MEMBERS/YLD/KICKBALLTOURNAMENT

THANKS TO OUR SPONSORS Grand Slam Triple Double OAMIC Sonja R. Porter, Choc Beer Sherwood McCormick Attorney at Law PLLC Stuart & Clover and Robert The Law Office of Beyond Square One Bryon J. Will PLLC Hall Estill Phillips Murrah PC Kaleb K. Hennigh Single Home Run Graves McLain PLLC Kevin T. Sain, Attorney at Law McGill & Rodgers Travis Smith Allyson Dow DON’T SEE YOUR NAME ON THIS LIST? EMAIL [email protected]

WANT TO WATCH? ONLY $10 TO ENTER • FOOD TRUCKS AND BEVERAGES AVAILABLE

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1697 MEMBER BENEFIT Check out the perks of being an OBA member

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

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

1698 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 CALENDAR OF EVENTS

August September 15 OBA Real Property Law Section meeting; 1 OBA Government and Administrative Law 9:30 a.m.; Stroud Conference Center; Contact Section meeting; 4 p.m.; Oklahoma Bar Center, Lucas J. Munson 405-513-7707 Oklahoma City; Contact John E. Miley 405-557-7146

18 OBA Bench and Bar Committee meeting; 12 p.m.; 3 Lawyers Helping Lawyers discussion group; Oklahoma Bar Center, Oklahoma City with telecon- 6 p.m.; 701 NW 13th St., Office of Tom Cummings, ference; Contact David B. Lewis 405-556-9611 Oklahoma City; Contact Jeanne Snider 405-366-5423

OBA Diversity Committee meeting; 12 p.m.; 4 OBA Alternative Dispute Resolution Section Oklahoma Bar Center, Oklahoma City; Contact meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma Tiece I. Dempsey 405-524-6395 City with teleconference; Contact Ken Morgan Stoner 405-705-2910 19 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Trisha 7 OBA Closed - Labor Day observed Archer 918-619-9191 8 OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Tiece I. Dempsey 405-524-6395

9 OBA Women in Law Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Kimberly Hays 918-592-2800

10 OBA Awards Committee meeting; 12 p.m.; Oklahoma Car Center, Oklahoma City; Contact Jennifer Castillo 405-553-2854

11 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy 405-556-9615

21 OBA Board of Governors meeting; 10 a.m.; OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Oklahoma Bar Center, Oklahoma City with telecon- John Morris Williams 405-416-7000 ference; Contact Michelle K. Smith 405-759-2333

OBA Rules of Professional Conduct Committee 15 OBA Bench and Bar Committee meeting; 12 p.m.; meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Oklahoma Bar Center, Oklahoma City with teleconfer- Contact Paul B. Middleton 405-235-7600 ence; Contact Judge David B. Lewis 405-556-9611

27 OBA Professionalism Committee meeting; OBA Diversity Committee meeting; 12 p.m.; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Oklahoma Bar Center, Oklahoma City; Contact Patricia Podolec 405-760-3358 Tiece I. Dempsey 405-524-6395

28 OBA Professional Responsibility Commission 16 OBA Indian Law Section meeting; 12 p.m.; meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma Oklahoma Bar Center, Oklahoma City with telecon- City; Contact Gina Hendryx 405-416-7007 ference; Contact Trisha Archer 918-619-9191

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1699 18 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Gina Hendryx 405-416-7007

OBA Board of Editors meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Melissa DeLacerda 405-624-8383

19 OBA Real Property Law Section meeting; 9:30 a.m.; Tulsa County Bar Center, Tulsa; Contact Lucas J. Munson 405-513-7707

23 OBA Financial Institutions and Commercial Law Section meeting; 12 p.m.; Oklahoma Bar 2 OBA Alternative Dispute Resolution Section Center, Oklahoma City; Contact Eric L. Johnson meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma 405-602-3812 City with teleconference; Contact Ken Morgan Stoner 405-705-2910 24 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact 6 OBA Government and Administrative Law Patricia Podolec 405-760-3358 Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146 25 OBA Board of Governors meeting; 10 a.m.; Norman; Contact John Morris Williams 405-416-7000 9 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma OBA Lawyers Helping Lawyers Committee City with teleconference; Contact Suzanne Heggy meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma 405-556-9615 City; Contact Jeanne Snider 405-366-5423

30 OBA Clients’ Security Fund Committee meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Micheal C. Salem 405-366-1234 Oklahoma City October Real Property Lawyers Association Join us for September CLE 1 Lawyers Helping Lawyers discussion group; 6 p.m.; 701 NW 13th St., Office of Tom Cummings, 7:15 a.m., Friday, September 11, 2015 Oklahoma City; Contact Jeanne Snider 405-366-5423 Water for 2060: Drought-Proofing Oklahoma An overview of the Oklahoma Comprehensive Water Plan Sara D. Gibson Deputy General Counsel Oklahoma Water Resources Board Community Room on the 3rd floor of 50 Penn Place 1900 N.W. Expressway, Oklahoma City, OK OKCRPLA provides ten CLE breakfast programs a year on real property related topics and annually recognizes OU and OCU law students for academic achievement in real property law. OKCRPLA invites OBA members to attend the September 2015 meeting free of charge. Seating is limited, so please make your reservation by Tuesday, September 8, 2015, by contacting the OKCRPLA at [email protected].

1700 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 FOR YOUR INFORMATION

DeLacerda and Webb Elected to JNC Attorneys Melissa DeLacerda of Stillwater and Jim R. Webb of Okla- homa City were recently elected by their fellow lawyers to serve on the state’s Judicial Nominating Commission. They will serve as two of the six lawyers on the 15-member commission, which plays a key role in the selection of Oklahoma judges. Ms. DeLacerda will represent District 6, which is composed of 23 counties in the northwestern part of the state. Mr. Webb will represent District 5, comprised of all of Oklahoma County except for those portions described as State Senate District No. 42 and House District No. 96 as they existed in 1967. Ms. DeLacerda has been in private practice in Payne and surrounding counties for more than 30 years. Her practice primarily focuses on litigation. She has served on numerous OBA committees through Melissa DeLacerda the years. She was a YLD board member, Board of Governors member and OBA president in 2003. She has served on the Professional Responsibility Commission and numerous task forces and she currently chairs the Oklahoma Bar Journal Board of Editors. She is the author of West Practice Series Volume on Family Law. Mr. Webb has served as the executive vice president general counsel and corporate secretary for Chesapeake Energy Corp. since January 2014. Prior to joining Chesapeake in 2012, he practiced with McAfee & Taft in Oklahoma City from 1995-2012 and Gorsuch Kirgis in Den- ver, Colorado, from 1993-1995, representing both plaintiffs and defen- dants, and both individuals and com-panies. He currently serves as Oklahoma County Bar Association president. He has been outspoken on the constitutional mandate for a strong, independent, nonpolitical judiciary in Oklahoma, allowing the judges to make decisions based on the facts, the law and nothing else. He has received the OBA Out- Jim Webb standing Pro Bono Service Award, OCBA Professional Service Award, OCBA Community Service Award and Journal Record Leadership in Law award. He serves on the board of multiple charities and graduated from Washington University in St. Louis School of Law in 1993. The OBA is charged with conducting elections of the lawyer members of the commission, and elections are held each odd-numbered year for members from two districts. In addition to the six lawyer members of the Judicial Nominating Commission, there are six nonlawyers appointed by the governor and three at-large members. Of those three, one is selected by the speaker of the House of Representatives, one is selected by president pro tem- pore of the Senate and one is selected by at least eight commission members. All serve six-year terms, except the members at large who serve two-year terms. More information about the Judicial Nominating Commission is available at www.oscn.net/jnc/about.

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, trans- forming 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].

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1701 Fastcase Unveils New Platform Important Upcoming Dates The brand new Don’t forget! The Oklahoma Bar Fastcase 7 prom- Center will be closed Monday, ises a greatly Sept. 7 in observance of Labor Day. improved experi- The upcoming leadership CLE, ence for online “From the School House to the legal researchers. White House,” is set for Sept. 24, The faster, more and be sure to docket the OBA powerful new Annual version is under- Meeting going beta testing and will be available by invitation to be held only. Invitations will be distributed through bar in Oklaho- associations that have affinity relationships with ma City Fastcase. OBA members may request an invitation Nov. 4-6. by emailing [email protected]. Remember: The OBA offers this online legal research software as a free benefit to all OBA members.

LHL Discussion Group Hosts Upcoming Meeting “Dealing with the Adversarial Nature of the Practice of Law” will be the topic of the Sept. 3 meeting of the Lawyers Helping Lawyers monthly discussion group. Each meeting, always the first Thursday of each month, is facilitat- ed by committee members and a licensed mental health professional. The group meets from 6 – 7:30 p.m. at the office of Tom Cum- mings, 701 N.W. 13th St. Oklahoma City. There is no cost to attend and snacks will be provided. RSVPs to Kim Reber; kimreber@ cabainc.com, are encouraged to ensure there is food for all.

• Interested in forming a discussion group in Tulsa? Contact Hugh Hood: 918-747-4357

Connect With the OBA Through Social Media Have you checked out the OBA Facebook page? It’s a great way to get updates and information about upcoming events and the Oklahoma legal community. Like our page at www.facebook.com/ OklahomaBarAssociation. And be sure to follow @OklahomaBar on Twitter!

OBA Member Resignation The following member has resigned as a member of the association and notice is hereby given of such resignation: Sharon Kay Jackson Wendell • OBA No. 30803 1708 Sunset Blvd., 2nd Floor West • Houston, TX 77005

1702 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 BENCH & BAR BRIEFS

all into volunteering. She Chaney law firm and gradu- graduated from the OCU ated from the OU School of Law in 1989. College of Law in 1982. usan Jordan of Jordan Law elody V. Suess received SPLLC, with offices in Okla- Mher Executive LL.M. in homa and Austin, has been taxation through Georgetown all Estill associate Tami selected to the 2015 list as a Law School with a certificate Hines was honored by H member of the Nation’s Top in state and local taxation. the American College of One Percent by the National She is currently a deputy gen- Consumer Financial Services Association of Distinguished eral counsel for the Oklahoma Lawyers during its 2015 Counsel. NADC is an organi- Tax Commission and has annual meeting as a winner zation dedicated to promot- worked in the Tulsa office of of its annual writing competi- ing the highest standards of the OTC for 12 years. tion. Each year the ACCFSL legal excellence. Its mission is seeks to recognize written evin Donelson was to objectively recognize the contributions to the field of appointed to the Board of attorneys who elevate the K consumer financial services Adjustment by Oklahoma standards of the bar and pro- law. She is the winner of the City Mayor Mick Cornett. He vide a benchmark for other student category for her arti- was appointed to fill Mark lawyers to emulate. She grad- cle, MERS: Sometimes Agent, Stonecipher’s term which uated from Southern Method- Sometimes Principal, Often runs until October 2016. Mr. ist University Dedman School Misconstrued. She graduated Stonecipher vacated his seat of Law in 1995. from the OCU School of Law after being elected to the city in 2014. ary Holloway Richard council. of Phillips Murrah’s ov. Mary Fallin appoint- M he American College of healthcare practice group was ed Crowe & Dunlevy Trust and Estate Counsel, G appointed vice chair of the T attorney Bruce W. Day to the an organization of peer-elect- American Health Lawyers Commission for Education ed trust and estate lawyers, Association’s Behavioral Quality and Accountability. has named Crowe & Dunlevy Health Task Force. The He will serve a four-year attorney Cynda C. Ottaway Behavioral Health Task term. The newly created com- president-elect. ACTEC inau- Force was established by the mission will focus on setting gurated the 2015-2016 officers nationwide professional orga- teacher preparation stan- during a recent annual meet- nization to provide education dards, student performance ing in Marco Island, Florida. for attorneys about the legal and directing a more efficient She graduated from the OU issues that arise in the provi- and productive state educa- College of Law in 1978. sion of services to behavioral tional effort to match current health patients and to alcohol and anticipated workforce he Oklahoma Human and drug treatment providers needs. He graduated from the TResource State Council and patients. She graduated OU College of Law in 1972. presented Crowe & Dunlevy from George Washington attorney Leonard Court pecial Olympics Oklahoma University School of Law with the 2015 Excellence in Snamed Hall Estill attorney in 1980. Human Resource Manage- Elaine R. Turner the 2015 ment Award. The award sig- ake Jones was reappointed Volunteer of the Year. She has nifies a professional who to serve as the Oklahoma organized Capitol Area Spe- J demonstrates the organiza- Indigent Defense System cial Olympic events since tion’s mission of serving the Board chairman. He was first 1996. Each year Special Olym- human resource professional appointed to the board by pics Oklahoma presents this and advancing the profession. Gov. Keating and reappointed award to outstanding volun- He received his J.D. from by Govs. Henry and Fallin. teers who are committed to Harvard University 1972. He is a partner with Kirk and the athletes and who put their

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1703 cAfee & Taft attorneys Indian Women. The OFIW will serve as the TCBA library MReid Robison and Cur- statewide Award Committee trustee. Directors at large are tis Thomas were presented selected him as an outstand- Valery O. Giebel, with the with a total of three awards ing individual who has gone Pray Walker Law Firm and by the Oklahoma County Bar above and beyond the call of Kimberly K. Moore-Waite, Association at the organiza- duty to serve and benefit with Legal Aid Services of tion’s 2015 awards luncheon. American Indians. He Oklahoma. Kara Gruel, Gruel Mr. Robison was honored graduated from the OU Law Firm PLLC, was with the Bobby G. Knapp College of Law in 1993. appointed by Mr. Smith to Leadership Award for his serve as the budget chair. arry Tawwater was sworn sustaining and effective lead- This was the first year for an in as the American Associ- ership, stewardship and pro- L electronic voting process. ation for Justice president at fessionalism. He was noted Only two paper ballots the organization’s annual for his efforts for reaching out were cast. convention in Montreal. AAJ to young lawyers and getting is a powerful voice in protect- unlap Codding received them involved in the bar ing consumer rights and pre- a Beacon Award for association. He graduated D serving the civil justice sys- Charitable Influence from The from the OU College of Law tem. It provides education Journal Record. The award rec- in 1968. Mr. Thomas was hon- tools for its attorney members ognized organizations for ored with the President’s Pro- and serves as one of the most demonstrating a company fessionalism Award for his forceful advocates for con- culture that encourages and work chairing the Law Day sumers on Capitol Hill. He supports volunteerism, chari- Committee for the past three graduated from the OU table giving and community years and the Outstanding College of Law in 1972. involvement by its members. Young Lawyer Division In 2014, the firm volunteered Director Award, which was he American Bar Associa- more than 1,000 hours and voted on by the YLD board tion Law Practice Division T contributed $150,000 to host- of directors. He graduated honored Mark Robertson ing, supporting and funding from the OU College of Law with its Samuel S. Smith nearly 150 events. in 2009. Award, given annually to an individual who has demon- atthew D. Stump was strated excellence in law prac- appointed by the Ameri- M tice management throughout can Immigration Lawyers their lifetime. He graduated Association to serve as the from the OU College of Law organization’s U.S. Depart- in 1975. ment of Homeland Security Vermont Service Center Liai- he Tulsa County Bar Asso- son Committee chairman. He Tciation announced their will lead a team of immigra- 2015-2016 officers. E. Zack lint A. Cowan of Fellers tion attorneys and subject Smith, a member of the Snider was appointed to matter experts in identifying Gorospe & Smith PLLC Law K serve a three-year term as the and addressing concerning Firm, will serve as president. attorney general for Kaw legal trends, represent AILA Matt Farris with Rogers and Nation. He will represent the at USCIS stakeholder meet- Bell Law Firm will serve as Kaw Nation in all criminal ings and will assist AILA president-elect and Christina cases in the courts of the Kaw attorneys requiring liaison Vaughn was elected vice Nation, and in all civil actions assistance with complex president. She is with McAfee wherein the Kaw Nation is a immigration issues. He & Taft. Ken Williams, an party and shall provide an graduated from the OCU attorney with Hall Estill, will opinion as to the constitution- School of Law in 2006. serve as past president. Rich- ality of laws at the request ard D. White, with the Barber rowe & Dunlevy attorney of the chair, tribal council or & Bartz Law Firm, was elect- D. Michael McBride III general council. He graduated C ed treasurer and Ann Keele, received the Mary Townsend from the TU College of Law with Monroe & Kelle PC, was Crowe Service Award from in 2004. elected secretary. Trish L. the Oklahoma Federation of Archer, Archer Law PLLC,

1704 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 oe Saye was elected vice from the OCU School of Law the Oklahoma Bar Associa- Jpresident, general counsel in 2001. tion Civil Procedure & Evi- and corporate secretary for dence Code Committee chair. he law firm of Evans & CH2M-WG Idaho LLC, a con- He graduated from the Uni- Davis announced that tractor for a multibillion dol- T versity of Texas at Austin Bryan Evans has been admit- lar environment cleanup at School of Law in 1995. Mr. ted to the State Bar of Arizona the Department of Energy’s Ball joined the firm in 2003 and that John D. Weaver has Idaho National Laboratory and graduated from the OU joined the firm as senior site. He received a J.D. from College of Law in 1987. Mr. attorney. With the admission the OU College of Law in Reed joined the firm in 1988 to the State Bar of Arizona, 1980, a Masters of Law in and is a former adjunct pro- the firm enhanced its pres- Military from the Judge fessional at Tulsa Community ence throughout Arizona to Advocate General’s School in College. He graduated from better serve existing clients, 1988 and a Masters of Law in the University of Arkansas their families and referrals environmental law from the School of Law in 1982. George Washington Universi- throughout the state. Mr. ty School of Law in 1991. Evans graduated from the rowe & Dunlevy OU College of Law in 2001. Cannounced Donald K. eah Jo Edwards was Mr. Weaver will focus on Shandy joined the firm as a Lappointed as the district real estate and banking law. director in the Oklahoma City judge for Garvin and McClain He graduated from the OU office. He will join the firm’s counties. She has served as College of Law in 2004. environment and energy and the first assistant district natural resources practice all Estill announced the attorney in Grady County groups. He graduated from addition of Megan Beck and currently serves as the H the OU College of Law in as special counsel in the Grady and Canadian County 1985. Women’s Service and Family firm’s Tulsa office, the elec- Sarah E. Hansel, John Resource Center president. tion of nited States Administra- F. Heil III James C. Mil- Judge James She graduated from the OU and Utive Law ton Linehan College of Law. to the firm’s board of has been moved to directors and Larry G. Ball Region 6 in McAlester by the cAfee & Taft announced and James M. Reed to the Social Security Administra- Mthe addition of Rachael firm’s executive committee. tion. His duties will encom- F. Hughes to its litigation Ms. Beck will practice in the pass social security hearings group. She is a trial lawyer family service arena, with an in Oklahoma as well as sur- whose practice encompasses emphasis on custody, divorce rounding states within the areas of business litiga- and guardianship matters. Region 6. He graduated tion, appellate advocacy, She graduated from the Uni- from the OCU School of insurance litigation and versity of Missouri-Kansas Law in 1986. administrative proceedings City School of Law in 2005. hristensen Law Group with an emphasis on research Ms. Hansel joined the firm in announced that Cori H. and writing. She graduated 1989 and rejoined in 2006. She C Loomis joined the firm’s from the TU College of Law is an active volunteer in the Oklahoma City office. She in 2013. Tulsa community and serves will practice corporate and as the Parent Child Center of he Brawner Law Firm healthcare law. She graduated Tulsa board of directors presi- announced the renaming from the University of Texas T dent. She graduated from the of the firm to Brawner, Lott & at Austin School of Law OU College of Law in 1989. Associates. R. Dean Lott, in 1994. Mr. Heil joined the firm in Larry C. Brawner and Teresa 2000 after working as an Davis will continue to prac- amily law attorneys assistant district attorney in Tamera A. Childers tice in the area of worker’s F and Tulsa County. He graduated Rebecca L. Post compensation defense. John announced from the TU College of Law Valentine has joined the firm the opening of their law firm, in 1994. Mr. Milton joined the and will also practice in the ChildersPost PLLC. Their firm in 2012. He is an Ameri- area of worker’s compensa- practice will concentrate on can College of Trust & Estate tion defense. He graduated divorce, paternity, guardian- Counsel fellow and serves as ships, child custody, child

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1705 support, visitation, enforce- the areas of environmental with government agencies, ment and modification and and natural resources law, both state and federal. He protective orders. Childers- including advocacy of water graduated from the OU Post is located at 21 Centre supply, water pollution and College of Law in 1981. Park, 2642 East 21st Street, water rights issues on behalf herwood, McCormick & Suite 240, Tulsa 74114; of industry, landowners and Robert announced Kristin 918-574-8990; tamera@ municipalities. He graduated S Straily joined the firm as an childerspost.com and from the OU College of Law associate. Her practice will [email protected]. in 1977. focus on social security dis- effrey I. Crain announced arrow & Grimm an- ability, both initial filing and Jthe opening of Crain & Bnounced Joseph Allen appeals, elder law and medi- Associates PLLC in northwest joined the firm as an associ- cal malpractice. She graduat- Oklahoma City near Meridian ate attorney. His primary ed from the TU Avenue and Kilpatrick Turn- focus will be business law College of Law in 2011. pike. He has experience in and civil litigation. He grad- udge Robert H. Jones is estate planning and adminis- uated from the OU College stepping down from the tration, wills, trusts, guard- of Law in 2013. J bench. He will continue to ianship, probate and real eBee Gilchrist Attorneys devote himself to the needs of estate. His office will be locat- & Counselors announced his clients and is not retiring ed at 4500 Memorial Circle, D the relocation of its office to from the practice of law. He Suite B, Oklahoma City 1200 NW 63rd Street, Suite has contributed to the civic 73142; 406-356-6118; 5000, Oklahoma City 73116. life of the City of Shawnee in www.JeffCrainLaw.com. The firm will continue to offer his 57 years of law practice. oerner, Saunders, Daniel legal, business and financial D& Anderson announced counsel to a variety of local, that L. Dru McQueen joined regional and international its Tulsa office and Cynthia J. companies as well as individ- Becker, Patrick Mensching uals and nonprofit entities. and Michael C. Wofford The firm can be reached at have been named partners. 405-232-7777 or you can visit Ms. McQueen has 10 years of www.debeegilchrist.com. experience in private practice elissa F. Cornell an- ichard B. Noulles pre- and will focus her practice nounced the opening of sented to the Tulsa Coun- on commercial litigation, M R her firm Cornell Law Firm. ty Bar Association Energy & employment law, environ- She will continue to focus her Mineral Section on “From the ment law and commercial practice on family law and Wellhead to Market: State and transactions. She graduated will provide lower cost medi- Federal Viewpoints on Post from the TU College of Law ation services for attorneys Production Costs.” in 1982. Ms. Becker devotes and their clients in need of a her practice to general and eAnn Ellis, Susan Jordan, less stressful, more satisfying commercial litigation, includ- David McKinney, Mea- resolution of their conflict. L ing federal and state cases gan Burrows and Philip Cornell Law Firm is located involving contracts, real Hixon presented a series of at 2504 E 21st Street, Suite A, estate, construction and debt- healthcare topics to OSU Tulsa 74114; 918-574-8901; or and creditor rights. She Medical School residents and www.clftulsa.com or email graduated from Florida State medical staff. Topics included [email protected]. University School of Law in “End of Life Concepts,” “Phy- 1996. Mr. Mensching focuses he Senior Law Resource sician Risk Management,” in the areas of commercial TCenter announced that “Contracts,” “Patient/Family and fraud litigation, mortgage William J. Bergner Sr. has Legal Rights,” “Stark, foreclosure, commercial col- been hired as the executive EMTALA and Compliance” lections and general civil liti- director. He is an attorney and “Medicolegal and gations. He graduated from with more than 33 years of Ethical Issues.” the TU College of Law in experience in litigation, medi- raydon D. Luthey Jr. 1982. Mr. Wofford practices in ation, arbitration and dealing Gspoke at the Tribal Online

1706 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 Gaming Conference in Phoe- Here, Pay Here Dealers in Las implementation of changes to nix, Arizona. His topic was Vegas. The topic of the panel the customer account state- “Tribal-State Compacts: discussion was “Is Your Deal- ments rule and other FINRA Determining the Extent to ership Ready for the Coming initiatives. Which Tribes Need to Negoti- Regulatory Challenges?” He How to place an announce- ate Updated Terms to Accom- also spoke at the Counselor ment: The Oklahoma Bar Journal modate Internet Gaming.” Library’s 2015 Consumer welcomes short articles or Financial Services Conference oseph H. Paulk presented news items about OBA mem- on the topic of “Practical a keynote speech titled bers and upcoming meetings. J Compliance for Auto Finance “Value” to the Association of If you are an OBA member and and Leasing Professionals” you’ve moved, become a part- Attorney Mediators in New and at the 2015 National ner, hired an associate, taken Orleans, Louisiana. The Independent Auto Dealer on a partner, received a promo- national meeting presentation Association Convention & tion or an award, or given a highlighted results from a Expo on the topic of “Writing talk or speech with statewide survey conducted over sev- the Right Report: Complying or national stature, we’d like eral months by him and his with the Fair Credit Report- to hear from you. Sections, staff into what mediation ing Act.” committees, and county bar participants truly value in associations are encouraged a mediation. hris Smith presented a to submit short stories about core conversation at the upcoming or recent activities. ark Christiansen pre- C South-by-Southwest Interac- Honors bestowed by other sented a program M tive Festival in Austin, Texas. publications (e.g., Super Law- regarding frac litigation at He spoke on the topic of yers, Best Lawyers, etc.) will not the 61st Annual Rocky Moun- mobility and work life bal- be accepted as announcements. tain Mineral Law Institute (Oklahoma-based publications ance, incorporating his expe- in Anchorage, Alaska. They are the exception.) Information rience establishing a law discussed the unsettled state selected for publication is practice in both Oklahoma of the law, and industry printed at no cost, subject to City and Dallas. responses to date concerning editing, and printed as space the legal standards to be allace Kunzman Jr. par- permits. applied to disputes in which Wticipated in a fireside Submit news items via email to: an operator’s fracture treat- chat at the Investment Pro- Mackenzie McDaniel ment of a new horizontal well gram Association 2015 Execu- Communications Dept. is alleged to have caused tive Summit in Washington Oklahoma Bar Association damage to the nearby vertical D.C. The topics discussed 405-416-7084 well of another operator. included MASAA initiatives [email protected] related to investor suitability ric L. Johnson was a fea- and the review and exam Articles for the Sept. 12 issue tured panelist at the 17th E process of broker-dealers. must be received by Aug. 10. Annual Conference of the He also participated in an National Alliance of Buy IPA webinar discussing the IN MEMORIAM

enneth Edison Holmes of Alamogordo, New Mexico. pal Church, 109 N. 13th Street, KPonca City died May 24. When he completed his tour, Ponca City, OK 74601 or to the He was born Aug. 4, 1934, he remained in the Army M.D. Anderson Cancer Center and graduated from the OU Reserves. He has served as (note “Ohanian toxic metal College of Law in 1963. He assistant city attorney, munici- research” with payment), was an officer in the U.S. pal judge and mayor of Ponca c/o Mary E Silverstein, Army from 1955 to 1959 and City. At the time of his death Department Administrator, was an officer and nuclear he was a partner at Holmes Department of Leukemia, weapons commander in the and Yates Law PLLC in Ponca 1515 Holcombe Blvd., U.S. Army with the rank of City. Memorial contributions Houston, TX 77030. captain at White Sands of may be made to Grace Episco-

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1707 WHAT’S ONLINE

Opening a Law Office Edition

Get a Website Order Business Cards Build a website using a professional- Design and print your own business looking template. cards. Templates are also available!

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www.LawPay.com www.paypal.com www.squareup.com Case Management Software Keep all your tasks and appointments in one handy place. The OBA MAP and ABA break down each practice management software so you can choose the one that’s right for your office. http://goo.gl/wdmNrk http://MyOKBar.org 2 “Shootout at the OK Bar Materials”

1708 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 CLASSIFIED ADS

SERVICES SERVICES BUSINESS VALUATIONS: Marital Dissolution * Es- INTERESTED IN PURCHASING PRODUCING & tate, Gift and Income Tax * Family Limited Partner- NON-PRODUCING Minerals; ORRI; O & G Interests. ships * Buy-Sell Agreements * Mergers, Acquisitions, Please contact: Patrick Cowan, CPL, CSW Corporation, Reorganization and Bankruptcy * SBA/Bank required. P.O. Box 21655, Oklahoma City, OK 73156-1655; 405- Dual Certified by NACVA and IBA, experienced, reli- 755-7200; Fax 405-755-5555; email: [email protected]. able, established in 1982. Travel engagements accepted. Connally & Associates PC 918-743-8181 or bconnally@ OIL AND GAS RESEARCH connallypc.com. Redbud Land Company is a centrally located, Oklahoma based, landman service company. We Appeals and litigation support serve attorneys statewide and assist with determining Expert research and writing by a veteran generalist their clients’ Oil & Gas assets and positions. who thrives on variety. Virtually any subject or any www.redbubland.com, [email protected], type of project, large or small. NANCY K. ANDER- 405-563-2359. SON, 405-682-9554, [email protected]. EXPERT LEGAL CONSULTANT AND WITNESS on Creative. Clear. Concise. Oil and Gas titles, and Real Property titles – KRAETTLI Q. EPPERSON, OKC attorney and adjunct law profes- Want To Purchase Minerals AND OTHER sor. Contact him at [email protected] or 405-858-5601. OIL/GAS INTERESTS. Send details to: P.O. Box See www. eppersonlaw.com. 13557, Denver, CO 80201. PROFESSIONAL CONSULTANT AND EXPERT WIT- OIL AND GAS LITIGATION and TRANSACTION NESS regarding Trust, Fiduciary, Real Estate, and Con- SUPPORT SERVICES. DUE DILIGENCE title for reserve tract Issues; 24 years private law practice and 16 years as valuations and borrowing base redeterminations. Over trust officer in major banks; DON WIECHMANN, Okla- 20 years of experience in land, land administration and homa attorney at [email protected] or 405-834-8265. information technology. Custom research, analysis, reporting and due diligence databases to handle complex OF COUNSEL LEGAL RESOURCES — SINCE 1992 — projects for litigation, acquisition, divestitures, hedges Exclusive research & writing. Highest quality: trial and and mortgages. Contact DEAN HIGGANBOTHAM 405- appellate, state and federal, admitted and practiced 627-1266, [email protected], www.gld7.com. U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf HANDWRITING IDENTIFICATION 405-728-9925, [email protected]. POLYGRAPH EXAMINATION Board Certified Court Qualified OFFICE SPACE Diplomate — ABFE Former OSBI Agent Life Fellow — ACFEI FBI National Academy OFFICE SPACE FOR LEASE: Large office space located Arthur D. Linville 405-736-1925 at 5929 N. May Ave., Ste. 300, OKC. Internet, wi-fi, phone, copier, kitchen and conference room included. BRIEF WRITING, APPEALS, RESEARCH AND DIS- $530 per month. To inquire, call Suzanne 405-463-6819. COVERY SUPPORT. Eighteen years experience in civil OFFICE SPACE FOR LEASE IN ESTABLISHED FIRM. litigation. Backed by established firm. Neil D. Van Dal-

Space located in Boulder Towers at 1437 S. Boulder sem, Taylor, Ryan, Minton, Van Dalsem & Williams PC, Ave, Suite 1080, Tulsa, OK. Space includes two confer- 918-749-5566, [email protected]. ence rooms, kitchen, reception area, security and free parking. $1,000 per month. Contact Robert Williams at 918-749-5566 or [email protected]. LUXURY OFFICE SPACE - Three offices for lease, $670, ADOPTION HOME STUDY $690 furnished and $870 in the Esperanza Office Park 3 WEEKS near NW 150th and May in OKC. Lease includes: Fully www.HomeStudyServices.com furnished reception area; receptionist; conference Full study and report done in 3 weeks room; complete kitchen; fax; high-speed internet; Background checks only in 3-5 days building security; and, free parking. Please contact David Worthington, Ph.D. Gregg Renegar at 405-285-8118. 405-210-4094 PERIMETER CENTER OFFICE COMPLEX, located at 39th and Tulsa currently has available offices ranging in size from 802 – 3,500 square feet. Executive Suites: Single unfurnished offices offered on a month-to- month lease term. Offices vary in size, ranging in price from $200 to $650 per month. Please call 405-943-3001 M-F from 8 a.m. to 5 p.m. for appointment.

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1709 OFFICE SPACE POSITIONS AVAILABLE SOUTH OKC OFFICE SPACE available in a building ENID / DOWNTOWN OKC FIRM SEEKS civil litiga-

complex surrounding a tranquil park-like setting in the tion attorney with 2-5 years’ experience. Salary based Willowbrook Gardens Professional Building complex on the firm’s experience-based employment track. located on South Walker Avenue just south of I-240. Send résumé, writing sample and cover letter to Call Jason Leonard at 405-570-4550 or Jana Leonard at [email protected]. 405-239-3800. THE OKLAHOMA TAX COMMISSION, LEGAL DIVI-

POSITIONS AVAILABLE SION seeks an attorney for an opening in its OKC office. Applicants must be licensed to practice law in Oklaho- ma. 0-5 years’ experience preferred. Submit cover letter, Oklahoma City plaintiff’s firm résumé, and writing sample to [email protected]. seeks attorney with at least 5 years experience ok.us. The OTC is an equal opportunity employer. in personal injury. Must be able to bring case load OKC AV RATED LAW FIRM SEEKING ASSOCIATE and client base. Great atmosphere with experienced

with excellent litigation, research, and writing skills, support staff, great location in South OKC with 1-5 years experience for general civil/commercial de- fantastic offices and facilities. Submit résumé to fense practice, health care law. Must have solid litiga- “Box CC,” Oklahoma Bar Association, PO Box tion experience for all phases of pretrial discovery and 53036, Oklahoma City, OK 73152 trial experience with excellent research and writing skills. Submit a confidential résumé with references, EDMOND LAW FIRM seeks associate attorney for civil writing sample and salary requirements to Box “U,” litigation. Self-starter with strong work ethic, research Oklahoma Bar Association, PO Box 53036, Oklahoma and writing skills, interpersonal skills, ability to work in City, OK 73152. a team environment and manage a diverse caseload. Pre- fer 5-10 years of relevant experience. Benefits offered. AV RATED DOWNTOWN OKC LAW FIRM SEEKS

Compensation based on experience and existing busi- ATTORNEY with two or more years of experience with ness. Please submit salary requirements, résumé and estate planning. Compensation based on experience writing sample to [email protected]. and origination. Parking/Health/Dental paid. Send résumé to Box “T,” Oklahoma Bar Association, PO Box ENID / DOWNTOWN OKC FIRM SEEKS EXPERI- 53036, Oklahoma City, OK 73152.

ENCED PARALEGAL with minimum of 3 years’ experience. College degree and paralegal certification TULSA FIRM SEEKING ATTORNEY WITH 0-5 strongly preferred. Salary commensurate with experi- YEARS’ EXPERIENCE. Recent graduates who are ence. Send résumé to [email protected]. awaiting bar exam results are also encouraged to apply. Position will commence in late August to early Septem- NORMAN LAW FIRM IS SEEKING sharp, motivated ber. Compensation based on experience. Firm practices

attorneys for fast-paced transactional work. Members in the area of estate planning, probate, guardianship, of our growing firm enjoy a team atmosphere and an adoption, family law, civil and business litigation, and energetic environment. Attorneys will be part of a cre- criminal defense. New associate would be expected to ative process in solving tax cases, handle an assigned work with attorneys in all areas of practice but would caseload, and will be assisted by an experienced support primarily be responsible over time for family law cases. staff. Our firm offers health insurance benefits, paid va- Firm members are willing to train and mentor but ex- cation, paid personal days, and a 401K matching pro- pect a self-starter with solid writing skills and problem gram. Applicants need to be admitted to practice law in solving abilities that include knowing when to ask Oklahoma. No tax experience necessary. Submit cover questions and/or for help. Firm members are also ide- letter and résumé to [email protected]. ally searching for someone who has a strong work ethic and interpersonal skills. We are a smaller firm with a RESPECTED NORTHEAST OKLAHOMA LAW FIRM wonderful staff of paralegals. Please submit cover let- has an immediate opening for a Legal Assistant with ter, résumé, and one to three writing samples to “Box 3+ years of litigation experience. This position requires JJ,” Oklahoma Bar Association, PO Box 53036, Oklaho- attention to detail, ability to work independently as ma City, OK 73152. well as on the team, and excellent communication/interpersonal skills. Knowledge of computer programs ASSISTANT GENERAL COUNSEL for the Regional

and systems a plus. Competitive salary depending on University System of Oklahoma. Position involves re- experience. Please submit résumé along with referenc- search, writing and application of higher education es to [email protected]. All inquiries will re- law which includes compliance with federal and state main confidential. laws and regulations and employment and contract law. Submit résumé and writing sample electronically ESTABLISHED LAW OFFICE AND CPA FIRM in to [email protected].

South Central Oklahoma, looking for an experienced legal assistant or newly admitted attorney with tax background. Compensation and benefits negotiable based upon experience. Please email résumé to: cindy@ cajohnsonenterprises.com.

1710 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 POSITIONS AVAILABLE POSITIONS AVAILABLE

ATTORNEY (WITH 3 TO 5 YEARS EXPERIENCE) PLAINTIFF’S CIVIL LITIGATION FIRM seeks associ-

needed for general civil practice to include Workers ate with 0-5 years’ experience. Located one hour west Comp experience, by AV-rated Tulsa insurance and of OKC in the small and friendly town of Hinton. Fast transportation defense firm. Very busy, fast-paced of- growing firm that respects your opinion, input, creativ- fice offering competitive salary commensurate with ity and work-life balance. Competitive compensation experience, health/life insurance, 401k, etc. Candidates package and exceptional work environment that will with strong academic background and practical litiga- make you love your career. If you want the opportunity tion experience, please send a résumé and writing sam- to enjoy your practice and have a significant and posi- ple (10 pg. max) in confidence via email to office@ tive impact on the lives of others, email résumé to gabmh.com. [email protected]. Martindale Hubble Rat- PARALEGAL (2015-033). TINKER FEDERAL CREDIT ed AV; Million Dollar Advocates Forum; Super Lawyer Rated; AVVO Client’s Choice Award.

UNION has an immediate opening for an experienced full-time Paralegal in our OKC Legal department. This HARTZOG CONGER CASON & NEVILLE is seeking

position will interact with various departments within a 2-6 year attorney to work in the firm’s estate planning the credit union as well as opposing counsel, co-counsel group. Applicants should have a strong academic and judicial/regulatory entities. This position requires background. Applicants should submit a résumé and the ability to communicate effectively both orally and in cover letter to: “Box W,” Oklahoma Bar Association, writing, attention to detail, filing/organizational skills, P.O. Box 53506, Oklahoma City, OK 73152. Applica- proficiency in Microsoft Office, conduct legal research, tions will be kept in strict confidence. draft standard documents and pleadings, compose correspondence and legal memoranda, assist in compiling AV RATED, INSURANCE DEFENSE LAW FIRM, lo- data and drafting reports, ability to adapt easily to new cated in Norman, Oklahoma, with emphasis on Com- concepts and responsibilities while prioritizing assign- mercial Trucking Litigation, seeks associate attorney ments, a positive attitude and commitment to excellence. with 3-5 years of litigation experience and excellent Salary range $37,350 - $44,817. Ideal candidates will have writing skills. Compensation package is commensu- basic knowledge of the following: powers of attorney, rate with level of experience. Please send résumé in wills & trust documents, OSCN, guardianship docu- confidence via email to [email protected]. ments, and document production. Qualified candidates will have: Associate’s Degree, 5+ year’s related experi- CLASSIFIED INFORMATION ence, completion of an ABA approved paralegal program, and certification by NALA. Apply online: www. REGULAR CLASSIFIED ADS: $1 per word with $35 minimum tinkerfcu.org. Credit verification will be evaluated prior per insertion. Additional $15 for blind box. Blind box word to interview. Educational, employment, and professional count must include “Box ___,” Oklahoma Bar Association, PO certifications will be verified for final candidates. Select- Box 53036, Oklahoma City, OK 73152.” ed candidate is subject to substance/alcohol testing. We DISPLAY CLASSIFIED ADS: Bold headline, centered, border promote a substance-free workplace: “Equal Opportuni- are $50 per inch of depth. ty Employer, M/F/Disability/Veteran.” DEADLINE: See www.okbar.org/members/BarJournal/ HARTZOG CONGER CASON & NEVILLE is seeking advertising.aspx or call 405-416-7018 for deadlines.

a 2-6 year attorney to work in the firm’s business and SEND AD (email preferred) stating number of times to be corporate group. Applicants should have a strong aca- published to: demic background with experience in complex busi- [email protected], or ness transactions. Applicants should submit a résumé Emily Buchanan, Oklahoma Bar Association, PO Box 53036, and cover letter to: “Box KK,” Oklahoma Bar Associa- Oklahoma City, OK 73152. tion, P.O. Box 53506, Oklahoma City, OK 73152. Applica- tions will be kept in strict confidence. Publication and contents of any advertisement are not to be deemed an endorsement of the views expressed therein, nor DURBIN, LARIMORE & BIALICK, P.C., A MIDTOWN shall the publication of any advertisement be considered an en-

OK C AV-RATED FIRM, SEEKS 5-15 years of experi- dorsement of the procedure or service involved. All placement ence in oil and gas law, including drilling, pipeline notices must be clearly non-discriminatory. and pollution litigation. Salary commensurate with DO NOT STAPLE BLIND BOX APPLICATIONS. experience. Please submit cover letter and résumé to [email protected]. THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all counties. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information or to sign up, contact Gisele Perry- man, 405-416-7086 or [email protected].

Vol. 86 — No. 21 — 8/15/2015 The Oklahoma Bar Journal 1711 THE BACK PAGE Siberian Nightmare By L. Robert LaRaia

It was March of 1993. I was in sometimes it didn’t. The building the middle of Red Square on a bit- was only a few years old but terly cold day. At one side of this seemed much older, with mis- huge open space stood the forbid- matched linoleum tile on the ding walls of the Kremlin with the floors, doors that wouldn’t shut glassed-in crypt containing Len- and walls that were far from in’s preserved body. On the oppo- plumb. Work was difficult, and site side of the square, the glass dealing with the Russian partner show windows of a large depart- was almost impossible. The bosses ment store displayed an abun- weren’t interested in concepts like dance of luxury goods. It struck “sanctity of contract.” They want- me then that capitalism had con- ed money now! No matter that it quered communism, and I won- would take years to revive the oil dered if Lenin was turning over in field’s production to a profitable his shrine. I was in the heart of the level. I still have chilling memories place that had been for all my life, of some of the meetings we had the home of the enemy. As a child when the Russians demanded of the Cold War and a former under the communist system, all money and threatened to have Army officer trained to fight that that was owned in common and, us arrested. very enemy, I thought I was in in consequence, owned by none, Let me end by telling a story the middle of a dream. was neglected for lack of pride of ownership. On the other hand, that demonstrates a truth about If it was a dream, it only lasted what was kept closest to one’s the Russian people — they’re basi- until I boarded a small propeller being, what one owned in spite of cally good folks. Every day on our plane for a four-hour flight to the communistic system, was still way to and from work, we would Western Siberia where my client/ cared for and appreciated for its pass a giant bronze statue, por- employer was conducting a ven- beauty. traying a striding man holding up ture with a Russian company in a small pick that geologists use to equal partnership to revive a huge We stayed in a sanitarium, a chip away at rocks. The statue oil field’s once prolific production place where under the old system honored “Alyosha,” the geologist levels. Years of forced output quo- the ordinary folk had been afford- who had discovered the giant oil tas and lack of conservation prac- ed a week or so of vacation every field in which we were involved. tices had rendered the field almost year. In that supposedly classless One day, as we neared it, we saw moribund. The deal was simple: society, the prominent party mem- a wedding party. the Western company provides bers were given more elaborate They were plain people. We the capital, the technology and vacations at Black Sea resorts. stopped and timidly asked if we the expertise; the Russians get We had small rooms, each with a could take some pictures. The half of the profits. The Siberian bathroom that had a toilet (and, if bride’s father came up to us with town was the ugliest place I had you were lucky, a toilet seat to go open arms and, in a bit of slurred ever seen. Large cinder block with it), a sink and a shower. If Russian and broken English, apartment houses lined the you stood in the shower too long, insisted that we join the party. He muddy streets where steel rebar your feet would turn a burnt poured us glasses of Russia cham- sprang from the broken concrete orange. When it came time to pagne (not great stuff!). We drank like weeds in a field. leave and go back to civilization, the song “Hotel California” used to toasts to the couple. Joy reigned I often wondered how the Rus- run through my head. I was never that day, and the memory of that sians, with a legacy of such beauty sure whether a plane would show experience is what I cherish above in the arts, literature and dance, up to take us out of there. “You all else that I remember about my could tolerate living in such squa- can check out but you can never Siberian nightmare. lor. But after visiting some people leave.” Mr. La Raia is an OBA member living in those apartments and who lives in Houston, Texas. seeing the articles of art and beau- Our offices were primitive too. ty they had, I concluded that, Sometimes the electricity worked,

1712 The Oklahoma Bar Journal Vol. 86 — No. 21 — 8/15/2015 8:30 a.m. Registration and Continental Breakfast

9:00 a.m. Psychologists at Trial; Working with and cross examining psychological experts: M. Shane Henry, Aaron Bundy and Dr. Eric Nelson, Ph.D.

1. Qualifications 2. Consulting vs. Testifying 3. Credibility of the Hired Gun 4. Retaining & Working with your Expert 5. Understanding the Psychological Tests 6. Collateral Sources 7. Daubert Analysis Doing Your 8. Recommendations Noon Job as a Networking lunch with Big Truck Tacos (included in registration)

1:00 p.m. Trial Lawyer: Opening Statements, Trial Tactics and Cross Examination Experts and Trial Tactics M. Shane Henry and Aaron Bundy 1. Credibility 2. Storytelling 3. Trilogies SEPTEMBER 25, 2015 4. Primacy and Recency Oklahoma Bar Center 5. Body Movement 1901 N. Lincoln Blvd. 6. Sequencing Oklahoma City, OK 7. Control Techniques 8. Goals at Trial

Program Planners/Moderator: 3:00 p.m. M. Shane Henry, Fry & Elder Adjourn

This seminar will focus on working with and cross examin- This course has been approved by the Oklahoma Bar Association ing psychological experts as well as opening statements, Mandatory Continuing Legal Education Commission for 6 hours of mandatory CLE credit, including 0 hours of ethics. trial tactics and cross examination. TUITION: $150 for early-bird registrations with payment received at least four full business days prior to the seminar date; CANCELLATIONS: $175 for registrations with payment received within four full Cancellations will be accepted at any time prior to the business days of the seminar date. $200 walk-ins. To receive a $10 live program discount register online at www.ok- seminar date; however, a $25 fee will be charged for can- bar.org/members/cle. The program will also be webcast at a cellations made within four full business days of the semi- non-discounted price. nar date. Cancellations, refunds, or transfers will not be ac- **Printed materials will not be available the day of the seminar; cepted on or after the seminar date. however, you can order a copy to be mailed to you at a later date for $25.

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