Volume 78 X No. 15 X May 12, 2007

ALSO INSIDE •Honor Your Peers with an Award Nomination •Membership Milestones •Ways to Have Fun Practicing Law Calendar of Events OBA CLE Seminars

May 15 – Tulsa May 23 – OKC Cutting Edge Issues and Ethics of Adoption Law Auto Accidents - Perspectives from Both Sides 7 hrs. of MCLE credit, including 1 hr. of ethics 6 hrs. of MCLE credit, including 1 hr. of ethics Crowne Plaza Hotel, 100 E. 2nd St. Oklahoma Bar Center, 1901 N. Lincoln Blvd.

May 16 – OKC May 23 – Tulsa Cutting Edge Issues and Ethics of Adoption Law Basic Probate Procedure 7 hrs. of MCLE credit, including 1 hr. of ethics Oklahoma Bar Center, 1901 N. Lincoln Blvd. 6 hrs. of MCLE credit, including 1 hr. of ethics Crowne Plaza Hotel, 100 E. 2nd St. May 17 – Webcast May 24 – OKC Representing the Client with Dementia: Legal and Medical Aspects Basic Probate Procedure 3.5 hrs. of MCLE credit, including .5 hrs. of ethics 6 hrs. of MCLE credit, including 1 hr. of ethics www.legalspan.com/okbar/webcasts.asp Oklahoma Bar Center, 1901 N. Lincoln Blvd.

May 18 – OKC May 24 – Tulsa our HorizonOklahoma Insurance Law Update 2007 Auto Accidents - Perspectives from Both Sides 6 hrs. of MCLE credit, including 1 hr. of ethics 6 hrs. of MCLE credit, including 1 hr. of ethics Oklahoma Bar Center, 1901 N. Lincoln Blvd. Crowne Plaza Hotel, 100 E. 2nd St.

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Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1265 Ask A Lawyer TV Program Chief Justice James R. Winchester Stephen D. Beam, OBA President Law Melissa DeLacerda, Host Moderator: Doug Dodd Panelists: Tina Izadi, Art LeFrancois, Julie Miller, Judge Kent Eldridge, John S. Oldfield, Daniel J. Talbot, Mark Barrett, David Prater and Christy Sheppard Day Voice-over Talent: Ray Vaughn Bill Thrash, Price Wooldridge, Earle Connors, Mickie Smith and all the # # # # # # production staff and crew at OETA OBA Criminal Law Section 2007 Metro Tech Bilingual Customer Service Class Ask A Lawyer Free Legal Information Statewide Project All Oklahoma attorneys who volunteered to answer phones OBA Law Day Committee Chairperson Giovanni Perry, Vice Chairperson Kim Spady TThhaannkk and Law Day Committee members County Law Day Chairpersons County Bar Association Presidents YYoouu Printing Services Printing Inc. Quintella Printing to these individuals Caterers and groups Oklahoma County Bar Auxiliary Tulsa County Bar Auxiliary who made Janie Morgan Catering Law Day 2007 Ken and Kim Spady a success!

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1266 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 DEPARTMENTS THEME: 1268 FROM THE PRESIDENT ESTATE PLANNING 1323 FROM THE EXECUTIVE DIRECTOR EDITOR: MARK CURNUTTE 1325 LAW PRACTICE TIPS

1328 ETHICS/PROFESSIONAL RESPONSIBILITY

1329 OBA BOARD OF GOVERNORS ACTIONS contents 1332 OKLAHOMA BAR FOUNDATION NEWS May 12, 2007 • Vol. 78 • No. 15 1335 ACCESS TO JUSTICE 1337 YOUNG LAWYERS DIVISION

1339 CALENDAR

1341 FOR YOUR INFORMATION

1343 BENCH AND BAR BRIEFS

1347 IN MEMORIAM

1324 EDITORIAL CALENDAR

1352 THE BACK PAGE

pg. 1271

pg. 1352

WAYS TO FEATURES HAVE FUN 1271 FIXING OKLAHOMA’S INSURABLE INTEREST LAWS

1279 ASSET PROTECTION PLANNING PLUS

1285 ADVANCE PLANNING FOR END-OF-LIFE 1306 HONOR YOUR PEERS WITH AN CARE IN OKLAHOMA AWARD NOMINATION

1291 THE CHARITABLE IRA ROLLOVER: A FEW 1308 OBA MEMBERS CELEBRATE THINGS YOU OUGHT TO KNOW SIGNIFICANT ANNIVERSARIES

1297 PROBATE AVOIDANCE WITH 1311 JUDICIAL NOMINATING POD AND TOD COMMISSION ELECTIONS 1318 OBA LEGAL ETHICS ADVISORY PANEL ISSUES OPINION

1321 BOARD OF GOVERNORS 2008 VACANCIES

pg. 1306 1322 SOVEREIGNTY SYMPOSIUM AWARDS REGISTRATION FORM NOMINATION

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1267 FROM THE PRESIDENT

Sometimes You Just Have to Do the Right Thing By Stephen Beam

Gov. Henry recently vetoed Senate Bill 507. constitutions. If it is a matter of That was the right thing to do. Senate Bill 507 was the so- public policy, who is better called “Tort Reform” bill. I am proud to say your Board equipped to comment on this mat- of Governors took a historic step at its last meeting and ter than the lawyers of this state. unanimously authorized me to send a letter to Gov. From what I was hearing from Henry asking him to veto Senate Bill 507. Oklahoma lawyers, the overwhelm- ing majority of them opposed the As a mandatory bar association, the OBA did not tread legislation. Many of them did not into this territory lightly. In the past, the association was even practice in areas affected by hesitant to take a position on such matters as it might the bill. They just did not find it place the association in a difficult political position. Your to be good public policy or Board of Governors felt certain provisions of Senate Bill constitutionally sound. 507 went beyond bad public policy and jeopardized the personal rights guaranteed The judicial system by our state and U.S. constitutions. must be fair and Additionally, we felt provisions of this bill The judicial impartial for every- were clearly unconstitutional, contrary to system must be fair one. We are not the proper administration of justice, opposed to reform to infringed upon the independence of the and impartial for ensure that everyone judiciary and gave distinct advantages in everyone. gets fair and impar- the judicial system to certain powerful and tial treatment in the well-financed parties. judicial system. However, to give one There are certain issues related to tort reform on which side in an adversarial system dis- I think we all can agree. One is frivolous lawsuits. The tinct advantages is not the way to language regarding frivolous lawsuits in Senate Bill 507 correct any deficiencies that might only served to make it more difficult to stop frivolous exist. Individual jury verdicts lawsuits. should not be replaced with one- The bill capped damages, changed long-standing rules size-fits-all damages for injured par- of civil procedure and even directed the Oklahoma ties. We need to make sure that Supreme Court to follow federal courts in regardless of political affiliation, interpreting the new statutes. If the bill had passed, social status or personal wealth, the citizens of this state would have lost constitu- everyone gets their day in court tional control over the jury system and the legal before a jury of his or her peers. system as a whole. That is what the founding fathers provided for us. We cannot settle On behalf of the Oklahoma Bar Association, I for less. To experiment with a lesser wrote to Gov. Henry urging him to exercise the system to appease any special inter- power vested in him by the Oklahoma Constitution est group is contrary to the fair and to veto Senate Bill 507. administration of justice. It is within the mission of the OBA to take posi- The easy thing to do would have tions on matters that affect the administration of been for the Board of Governors to justice. It is interesting that when the association do nothing. That was not the right takes a position on this issue its proponents claim thing to do. The right thing to do the OBA is taking a political position, while on the was to stand up for the rights of the President Beam other hand telling the public the bill is not political citizens of this state, the administra- practices in but good public policy. It cannot be both ways. If it tion of justice and the independence Weatherford. is political, it is troubling that partisan politics of the judiciary. You should be [email protected] should be allowed to trump the federal and state proud of your Board of Governors. (580) 772-2900

1268 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 OFFICERS & BOARD OF GOVERNORS Stephen D. Beam, President, Weatherford EVENTS CALENDAR J. William Conger, President-Elect, Oklahoma City Jack S. Dawson, Vice President, Oklahoma City MAY William R. Grimm, Immediate Past President, Tulsa MAY Julie E. Bates, Oklahoma City 16 OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Dietmar K. Caudle, Lawton Bar Center, Oklahoma City and OSU Tulsa; Contact: Matthew Free Cathy M. Christensen, Oklahoma City (918) 582-1234 Donna L. Dirickson, Weatherford OBA Solo & Small Firm Conference Planning Committee Robert S. Farris, Tulsa Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Brian T. Hermanson, Ponca City Roger Reneau (405) 732-6000 Michael W. Hogan, McAlester R. Victor Kennemer III, Wewoka OBA Law Day Committee Meeting; 4 p.m.; Oklahoma Bar Center, Deborah A. Reheard, Eufaula Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Robert B. Sartin, Tulsa Giovanni Perry (405) 601-2222 Alan Souter, Bristow Peggy Stockwell, Norman 17 OBA Work/Life Balance Committee Meeting; 12 p.m.; Christopher L. Camp, Tulsa, Chairperson, Oklahoma Bar Center, Oklahoma City; Contact: Melanie Jester OBA/Young Lawyers Division (405) 609-5280 BAR CENTER STAFF 18 OBA Board of Governors Meeting; 9:30 a.m.; Jenks; Contact: John Morris Williams, Executive Director; John Morris Williams (405) 416-7000 Dan Murdock, General Counsel; Donita Bourns Douglas, Director of Educational Programs; OBA Mentoring Task Force Meeting; 1:30 p.m.; Oklahoma Bar Carol A. Manning, Director of Public Information; Center, Oklahoma City; Contact: Jon Parsley (580) 338-8764 Craig D. Combs, Director of Administration; Gina L. Hendryx, Ethics Counsel; Jim Calloway, OBA Lawyers Helping Lawyers Committee Meeting; 1:30 p.m.; Director of Management Assistance Program; Rick Oklahoma Bar Center, Oklahoma City; Contact: Thomas Riesen Loomis, Director of Information Systems; Beverly S. (405) 843-8444 Petry, Administrator MCLE Commission; Jane 25 OBA Access to Justice Committee Meeting; 3 p.m.; Oklahoma McConnell, Coordinator Law-related Education; Janis Hubbard, First Assistant General Counsel; Loraine Bar Center, Oklahoma City and OSU Tulsa; Contact: Kade McClure Dillinder Farabow, Janna D. Hall, Mike Speegle, (580) 248-4675 Assistant General Counsel; Robert D. Hanks, Senior 28 Memorial Day (State Holiday) Investigator; Sharon Orth, Ray Page and Dorothy Walos, Investigators 30-31 Sovereignty Symposium XX; Skirvin Hilton Hotel, One Park Nina Anderson, Manni Arzola, Jenn Barrett, Avenue, Oklahoma City Melissa Brown, Brenda Card, Sharon Dotson, Johnny Marie Floyd, Matt Gayle, Susan Hall, Suzi JUNE Hendrix, Misty Hill, Durrel Lattimore, Heidi 1 Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma McComb, Jeanne Minson, Renee Montgomery, Bar Center, Oklahoma City; Contact: Judge Barbara Swinton Wanda Reece-Murray, Sandy Neal, Tim Priebe, Lori (405) 713-7109 Rasmussen, Tracy Sanders, Mark Schneidewent, Dana Shelburne, Laura Willis & Roberta Yarbrough 5 Oklahoma Hispanic Bar Network Meeting; 3 p.m.; Oklahoma Bar EDITORIAL BOARD Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Editor in Chief, John Morris Williams Contact: Saul Olivarez (405) 227-9700 News & Layout Editor, Carol A. Manning Editor, Melissa DeLacerda, Stillwater 6 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Associate Editors: Steve Barnes, Poteau; Martha Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Rupp Carter, Tulsa; Mark Curnutte, Vinita; Contact: Steven Dobbs (405) 235-7600 Luke Gaither, Henryetta; D. Renee Hildebrant, Oklahoma City; John Munkacsy, Lawton; Julia For more events go to www.okbar.org/news/calendar.htm Rieman, Enid; James Stuart, Shawnee and Judge Lori M. Walkley, Norman The Oklahoma Bar Association’s official Web site: www.okbar.org NOTICE of change of address (which must be in writing and signed by the OBA member), undeliv- THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar erable copies, orders for subscriptions or ads, news Association. All rights reserved. Copyright© 2007 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the stories, articles and all mail items should be sent to scales are trademarks of the Oklahoma Bar Association. Legal articles carried the Oklahoma Bar Association, P.O. Box 53036, in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A Oklahoma Bar Association (405) 416-7000 MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL, Toll Free (800) 522-8065 FAX (405) 416-7001 MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND Continuing Legal Education (405) 416-7006 BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR Ethics Counsel (405) 416-7083 ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA General Counsel (405) 416-7007 73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER: Law-related Education (405) 416-7005 SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX Lawyers Helping Lawyers (800) 364-7886 53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR Mgmt. Assistance Program (405) 416-7008 EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCI- Mandatory CLE (405) 416-7009 ATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN OBJ & Public Information (405) 416-7004 IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA Board of Bar Examiners (405) 416-7075 BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS. Oklahoma Bar Foundation (405) 416-7070

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1269 1270 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Estate PLANNING

Fixing Oklahoma’s Insurable Interest Laws By Gary F. Fuller and Steven P. Cole

he insurable interest provisions of the Oklahoma Insurance Code1 are flawed. The flaw was exposed by the Chawla cases consisting of the decision of the United States District Court for T 2 the Eastern District of Virginia, and, on appeal, the decision of the United States Court of Appeals for the Fourth Circuit.3 Despite the difficult task of pleasing the special interests of the insurance industry and trust companies and the trusts and estates bar, the flaw can and must be legislatively fixed.

THE CHAWLA CASES Subsequent to the issuance of the policy, the trust sought to have Transamerica increase the The Chawla cases involved outright deceit policy coverage to $2.45 million. Transamerica and large sums of money, making for good lit- approved a new application and an endorse- igation. Harald Giesinger applied for a $1 mil- ment upgraded the policy’s coverage on lion life insurance policy on his life with Harald’s life to the increased amount. Transamerica Occidental Life Insurance Com- pany, proposing to name his friend, Vera Harald died about a year following the Chawla, as owner and beneficiary. In the appli- increase in coverage. On Harald’s death, cation, Harald lied about his medical history, Chawla, acting as trustee of the trust, filed including numerous maladies stemming from a claim for the policy’s benefits with a fatal addiction to alcohol. Transamerica. After an extensive investigation, Transamerica rescinded the policy and refund- Transamerica refused to issue the policy due ed the premiums paid on the policy in the sum to Chawla lacking an insurable interest in Har- of about $47,000. ald’s life. The proposed owner and beneficiary Chawla, as trustee, filed suit in the district were thus changed to the “Harald Giesinger court. Construing Maryland law4, the district Special Trust,” naming Harald and Chawla as court granted summary judgment in co-trustees, and the policy was issued. Transamerica’s favor finding: 1) that material The trust was irrevocable and its res consist- misrepresentations of fact in the application ed of Harald’s residence. The trust agreement invalidated the policy; and 2) the trust main- provided that during Harald’s life, he retained tained no insurable interest in Harald’s life. the right to all income from the trust and the On appeal, the Fourth Circuit reviewed de right to occupy the residence. At his death, the novo the district court’s summary judgment. trust property was to be distributed solely to The Fourth Circuit affirmed summary judg- Chawla. ment to Transamerica on the misrepresentation

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1271 issue and vacated the dis- ble: 1) an entity view trict court’s ruling on the and/or 2) the attribution insurable interest issue, of beneficiaries view, but explaining that a ruling on Maryland did not afford the alternative issue of the latter.8 insurable interest was Unfortunately, Okla- unnecessary and that homa’s insurable inter- “judicial restraint has par- est law is like Mary- ticular application when a land’s, providing that no federal court is seemingly

person shall procure life faced with a state-law insurance upon the life issue of first impression.”5 of another individual A FLAW EXPOSED unless the benefits “are “ payable to the individ- Notwithstanding the ual insured or a person- Fourth Circuit’s decision The district court’s al representatives [sic], in Chawla, the district or to a person having, at court’s decision exposed conclusion in Chawla would the time when the con- a flaw in Maryland’s tract was made, an insurable interest statute. have been the same had insurable interest in the The Maryland statute individual insured.”9 prohibited a person “ Section 3604(C) of the acquiring life insurance Oklahoma law applied. Oklahoma Insurance on another individual’s Code10 defines “insur- life unless the life insur- able interest” as follows: ance were payable to: “Insurable interest” with reference to per- 1) the individual insured, sonal insurance includes only interests as 2) the individual insured’s personal repre- follows: sentative; or 1. In the case of individuals related closely 3) a person with an insurable interest in the by blood or by law, a substantial interest individual insured at the time the insur- engendered by love and affection; ance contract was made.6 2. In the case of other persons, a lawful and In order to qualify as a payee of the policy, substantial economic interest in having the trust had to be a “person” with an insur- the life, health, or bodily safety of the able interest in Harald. Under Maryland law, individual insured continue, as distin- the trust was a “person.” However, the trust guished from an interest which would was not related to Harald closely by blood or arise only by, or would be enhanced in law and, since it held only Harald’s residence, value by, the death, disability, or injury it did not have a substantial economic interest of the individual insured . . . .11 in the continuation of the life, health or bodily The district court’s conclusion in Chawla safety of Harald. By Maryland law, an interest would have been the same had Oklahoma law that arises only by the death of an individual applied. Maryland and Oklahoma share an (e.g. the policy) is not an insurable interest.7 identical flaw. They both view a trust as a sep- Accordingly, the trust did not have an insur- arate entity, requiring that the trust have an able interest in Harald’s life. insurable interest, if the trust acquires life Viewing the trust as a “person” is akin to insurance on the life of an individual. viewing the trust as a “separate entity.” An FIDUCIARY LIABLITY AND not alternative approach available under the TAX EXPOSURE Maryland statue would have been to examine the insurable interest of the trust’s beneficiar- Having exposed the flaw in the Oklahoma ies and attributing their interests to the trust. statue, the consequences must be considered. Thus, in determining whether an insurable There is substantial exposure to fiduciaries for interest exists, two approaches appear possi- liability. Also, the tax exposure to the insured’s

1272 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 estate could be monumental. liability exposure for purchasing a life insur- ance policy and paying premiums where there A very common estate planning tool is an is no insurable interest. irrevocable life insurance trust, called an “ILIT” by estate planners. The tool involves an The personal representative of the estate individual (“grantor”) establishing an ILIT for would also have personal liability exposure for the benefit of family members12 naming a third not pursuing a claim to recover death benefits party, often an independent, unrelated party, from an ILIT trustee where an insurable inter- as trustee, for the purpose of causing the ILIT est is lacking. The risk of the personal repre- to obtain life insurance on the grantor’s life.13 sentative would, of course, be greatest where The grantor will fund the trust with a substan- the beneficiaries of the ILIT and the estate are tial gift, the income and principal of which can not the same. be used to pay life insurance premiums, or the grantor may fund the trust with periodic cash Even if the insurance company were inclined gifts which can be used to pay insurance pre- to honor a life insurance policy owned by an miums as they become due. The death benefits ILIT, the insurance company might refuse to of the policy are payable to the trustee of the pay both the ILIT trustee and the insured’s ILIT. According to the plan, the death benefits estate. Instead, the insurance company might are not subject to income tax and are not prefer to interplead the death benefit and let included in the grantor’s estate for federal or the parties fight it out in court. Oklahoma estate tax purposes. One would From a tax perspective, the absence of an assume there are hundreds of life insurance insurable interest in the ILIT would be a train policies issued to ILITs created by Oklahoma wreck. If the insurance company were made to residents who are the named insured under pay a personal representative based on con- the policies. tract law and not the insurable interest statute, It appears that the trustee of an ILIT may not it is questionable whether the payment would have an insurable interest in the life of an Okla- be excludable from taxable income of the recip- 16 homa grantor of the ILIT under Oklahoma law ient under Code Section 101(a)(1). Also, with even if the trustee and the insured were relat- the proceeds being payable to the estate ed. Like the trust in Chawla, the ILIT would not instead of the ILIT trustee, the proceeds would be related closely by blood to the grantor. Also, be includable in the estate of the insured for trusts formed solely to hold insurance would estate tax purposes under Code Section not have a substantial economic interest in 2042(1).17 having the life, health or bodily safety of the This is a real and substantial problem. If individual insured continue. As in Maryland, fiduciaries, including legal counsel, have not an interest which arises only by the death of already cautioned beneficiaries, interested par- the individual insured is not an insurable 14 ties, and clients concerning this issue, they interest in Oklahoma. Following the entity should do so now. view of trusts, an ILIT would almost never be able to satisfy the insurable interest rule. LEGITIMATE USES OF LIFE INSURANCE Under Section 3604(B) of the Oklahoma There are numerous legitimate uses for life Insurance Code15, if a life insurance contract is insurance in an ILIT. As discussed above, life made where there is no insurable interest, “an insurance is often purchased in an ILIT for executor or administrator . . . may maintain an family members. Sometimes life insurance is action to recover [the death] benefits from the procured in the context of a divorce to insure person receiving them.” Accordingly, if an ILIT liquidity for the payment of alimony. With the is created under Oklahoma law having no spread of second or combined families, it is not insurable interest in the insured and the insur- uncommon to obtain life insurance on behalf ance company pays a death benefit to the ILIT, of step-children and step-grandchildren. Some then the estate of the insured would have an obtain life insurance to care for unique needs action against the trustee to recover the pro- or to provide for individuals sharing a special ceeds of the policy following the insured’s relationship to the insured, including maids, death. long time care-takers or friends. The risk of fiduciary liability is substantial. It Legitimate uses of life insurance by ILITs appears that the trustee of the ILIT would have should be protected. Fiduciary liability and tax

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1273 The life insurance industry “ has moved aggressively “ to ban IOLI.

policies and hold the policies until the insured’s death, the insurance business becomes much less profitable.21 The life insurance industry has moved aggressively to ban IOLI. According to a June 15, 2004, newsletter by the National Associa- tion of Insurance and Financial Advisors: The proponents of IOLI proposals have consequences of the ownership of the life invested significant resources to promote insurance should be certain. this legislation. In response, state associa- tions, their members, NAIFA, AALU and PERFECT STORM the ACLI have made extensive efforts to The Chawla decisions were rendered about defeat these proposals as they arise in the the same time that the life insurance industry various states. For the most part, our began to react to a relatively new development efforts have been successful, as legislative known as investor-owned life insurance sessions ended in Alabama, Florida, Mary- (“IOLI”). IOLI transactions vary but are typi- land, Oklahoma and South Carolina with- cally structured as an arrangement where a out the enactment of IOLI legislation. Leg- lender loans the insured money to buy insur- islation was enacted and signed into law in ance for two years. If the insured dies within Tennessee despite the efforts of Tennessee the two-year period, the bulk of the policy pro- AIFA and its members, and proposals are still pending in New York, Louisiana, and ceeds are paid to the named beneficiary after a 22 portion is used to repay the loan. On the other North Carolina. hand, if the insured survives the two year peri- The IOLI ban is at odds with a growing mar- od, the insured can: 1) keep the policy (subject ket for purchasing life insurance from seniors, to the loan) and start paying interest and an outgrowth of the viatical industry.23 Citing future premium payments, 2) transfer the pol- real life examples of seniors selling their life icy to the lender to satisfy the loan, or 3) sell insurance policies to buy medicine, pay bills, the policy to an investor group for a sizeable and pay for retirement, The New York Times profit over the loan amount. Unless the says: insured keeps the policy, a third party ends up owning the policy on the life of the insured [M]any advocates for the elderly and and could stand to profit on the insured’s industry insiders worry that seniors will 18 lose their legitimate ability to sell life insur- death. The life insurance industry has 24 opposed IOLI resulting from these arrange- ance policies they have held for years. ments on the grounds that it threatens the tax- In a surprising twist, it is in the interests of favored status of life insurance and that it rep- the life insurance industry to narrow, restrict resents an arbitrage between an annuity and and confine “insurable interest.” In their zeal life insurance.19 According to a recent article in to oppose IOLI, however, the life insurance The New York Times, however, “insurers are industry has thwarted efforts to remedy the worried because they count on many cus- flaw exposed by the Chawla cases.25 According- tomers canceling their policies before they die. ly, tension exists among the special interests of . . .”20 If investor groups purchase life insurance the life insurance industry opposing IOLI, the

1274 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 interests of the emerging life settlement mar- insurance on the life of the individual ket, the needs of the insureds, and the desires that are allocable in the aggregate to the of the trust companies and the trusts and the beneficiaries’ interest in the trust; and27 estates bar to protect the legitimate and his- toric uses of life insurance. House Bill 2905 was drafted to take a neutral stand on the IOLI fight but to resolve insurable The IOLI situation and fixing the flaw interest as it involves the historic use of ILITs exposed by Chawla, however, are separate and in Oklahoma. The proposed addition to Sec- distinct issues. It is wrong and unacceptable to tion 3604(C) would have incorporated both the hold a statutory fix to Chawla hostage to solv- “entity” view and the “attribution of benefici- ing the IOLI fight. It exposes fiduciaries and aries” view to analyzing the insurable interest insureds alike to unnecessary and significant of a trust. It was deliberately broad enough to risk. encompass the legitimate and historic uses of PROPOSED SOLUTION life insurance. The flaw in Oklahoma’s insurable interest House Bill 2905 was vigorously opposed by statute must be legislatively fixed. Due to the the life insurance industry and it was defeated. numerous assumed existing ILITs in Okla- Admittedly, the proposed clarifying language homa, any legislation should be “clarifying” based on Delaware law was strained and diffi- legislation and have a retroactive effect. cult to understand. In the corporate context, Oklahoma based A more suitable solution is to adopt the the Oklahoma General Corporation act upon approach used under Virginia law. Section Delaware law.26 Delaware law is often used as 3604(C) would be clarified as follows: a model for legislation due to the language 4. A trustee of a trust, whenever estab- having been adopted and interpreted there lished, shall be deemed to have an insur- first. able interest in (i) the individual insured During the 2006 Oklahoma legislative ses- who established the trust, (ii) each indi- sion, House Bill 2905 sought to fix the Okla- vidual in whose life the owner of the homa Insurance Code by borrowing from trust for federal income tax purposes has Delaware law. Section 3604(C), defining insur- an insurable interest, and (iii) each indi- able interest, would have been expanded with vidual in whose life a beneficiary of the the addition of the following clarifying lan- trust has an insurable interest; and 28 guage: This approach based on Virginia law is 4. The trustee of a trust whenever estab- straightforward. It is also consistent with the lished by an individual has an insurable historic use and current practice of the trust interest in the life of the individual and companies and the trusts and estates bar in the same insurable interest in the life of using ILITs. It does not attempt to solve or any other individual as does any person address the IOLI. As previously expressed, the who is treated as the owner of the trust IOLI fight should not be injected into the need for federal income tax purposes; to fix the Oklahoma insurable interest law 5. The trustee of a trust whenever estab- based on the flaw exposed by Chawla. lished has the same insurable interest in CONCLUSION the life of any individual as does any person entitled to receive any portion of The Chawla cases exposed a flaw in Okla- the proceeds of insurance on the life of homa’s insurable interest laws. The flaw cre- the individual that are allocable to the ates liability exposure to fiduciaries and a person’s interest in the trust; monumental tax exposure to estates of insureds. A reasonable legislative solution is to 6. If multiple beneficiaries of a trust when- promptly adopt clarifying language based on ever established have an insurable inter- the Virginia law. est in the life of the same individual, then the trustee of the trust has the same 1. Title 36 of the Oklahoma Statutes (West 2006). aggregate insurable interest in the life of 2. Chawla v. Transamerica Occidental Life Ins. Co., No. CIV.A. 03-CV- 1215, 2005 WL 405405 (E.D.Va. Feb.3, 2005). the individual as the beneficiaries with 3. Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639 (4th respect to any portion of the proceeds of Cir. 2006).

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1275 4. Due to the delivery of the policy and payment of the first pre- 26. Woolf v. Universal Fid. Life Ins. Co., 1992 OK CIV APP 129, 849 mium in Maryland, Maryland law applied. P.2d 1093, certiorari denied (March 24, 1993). 5. Chawla, 440 F.3d at 648. 27. The proposed clarifying language followed subparagraph 5 of 6. Md. Code Ann., Ins. §12-201 (a)(2) (West 2006). Section 2704 of Title 18 of the Delaware Code Annotated. The clarify- 7. Md. Code Ann., Ins. §12-201(b)(3) (West 2006). ing language would have been inserted into Section 3604(C) of Title 36 8. See Steve Leimberg’s Estate Planning Newsletter No. 941 (March of the Oklahoma Insurance Code and the existing subparagraph C(4) 9, 2006) at http://www.leimbergservices.com. See also Mary Ann would have been renumbered C(7). Mancini, “The Chawla Case, Insurance Trusts and the Insurable Inter- 28. The proposed clarifying language follows Section 38.2-301 of est Rule: ‘Houston, We Have a Problem,’” 31 ACTEC Journal 125 Title 38.2 of the Virginia Code Annotated. The clarifying language (2005). would be inserted into Section 3604(C) of Title 36 of the Oklahoma 9. 36 O.S. §3604(A.1). Insurance Code and the existing subparagraph C(4) would be renum- 10. 36 O.S. §3604. bered C(5). 11. 36 O.S. §3604(C). 12. Such as a wife, children, grandchildren, etc. 13. By design, the life insurance is applied for and acquired by the ILIT from the outset. If an insured acquires a life insurance policy on his life and transfers the policy to an ILIT and dies within three years of the transfer, the proceeds are included in the gross estate of the ABOUT THE AUTHOR insured under Code Section 2035(a) (26 USC §2035(a)). See Donald O. Jansen, “Giving Birth to, Caring for, and Feeding the Irrevocable Life Insurance Trust,” 41 Real Property, Probate and Trust Journal 571, 614- Gary Fuller is a veteran trans- 618 (Fall 2006). 14. 36 O.S. § 3604(C)(2). actional attorney and shareholder 15. 36 O.S. § 3604(B). with McAfee & Taft in Okla- 16. 26 USC § 101(a)(1). 17. 26 USC § 2042(1). homa City. In addition to having 18. Charles Duhigg, “Late in Life, Finding a Bonanza in Life Insur- lectured extensively to lawyer ance,” The New York Times (Dec. 17, 2006), and Rachael Emma Silver- groups on tax planning subjects, man, “Life Insurance as an Investment Draws Scrutiny,” The Wall Street Journal Online at http://online.wsj.com/home/us (Feb. 15, Gary has also been an instructor 2006). at the OU College of Law. Prior 19. Steve Piontek, “It’s Time to Ban IOLI,” National Underwriter at http://cms.nationalunderwriter.com. to receiving his master of laws 20. Duhigg, supra. degree from Yale University, Mr. Fuller served as an 21. Id. 22. “Update: Investor-Owned Life Insurance (IOLI)” NAIFA Front- attorney in the Judge Advocate General’s Corps of line, Vol. 2, No. 11 (June 15, 2004). the U.S. Air Force. 23. The Oklahoma Viatical Settlement Act is codified at 36 O.S. § 4041 et. seq. Viatical settlements involve the purchase of life insurance Steve Cole is a shareholder policies on terminally ill persons while life settlements (sometimes referred to as senior settlements, lifetime settlements, or high net with McAfee & Taft in Okla- worth transactions) relate to the purchase of policies insuring people homa City and currently serves with a life expectancy of between 2 and 12 years. See Morton P. Green- berg and John E. Mayer, CFP, “Extracting Hidden Value from Unwant- as the chairman of the firm’s Tax ed Life Insurance Policies,” 28 Estate Planning No. 9 at 434 (Sept. 2001). and Family Wealth practice Reportedly, the viatical settlement business got its start in the 1980s area. Mr. Cole is a frequent when investors began purchasing life insurance from terminal indi- viduals afflicted with the HIV virus and in need of immediate cash. author and presenter on tax- After the medical treatments for HIV improved and the infected indi- related topics. His recent writing viduals lived longer, the profits from viatical settlements were deci- mated. Some of the viatical settlement businesses that didn’t fail tran- credits include: “A Picture of sitioned to life settlements. See Steve Leimberg’s Estate Planning Trusts and Estate Law” included in “Best Practices Newsletter No. 1045 (Oct. 30, 2006) at www.leimbergservices.com. 24. Duhigg, supra. for Structuring Trusts and Estates,” Aspatore Books 25. During Oklahoma’s 2006 legislative session, the life insurance (2006). Steve earned his master of laws degree from industry vigorously opposed legislation designed to address Chawla, HB 2905, for fear that a IOLI loophole might inadvertently appear. New York University. Thus, clarifying language was not adopted in Oklahoma in 2006.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA NOTICE OF LOCAL CIVIL RULES CHANGES Pursuant to 28 U.S.C. § 2071(b) and Rule 83, Fed. R. Civ. P., the Court hereby gives notice and opportunity for comment on proposed changes to its Local Civil Rules. Paper copies of the proposed new rules are available at the District Court Clerk’s Office; and electronic copies are avail- able at http://www.okwd.uscourts.gov/localrules.htm. The proposed Local Civil Rules are scheduled to take effect on June 15, 2007. The Court invites comments from any interested person and will accept comments and suggestions through June 4, 2007. Send written comments to the Court Clerk, Attention: Local Rule Change, 200 N.W. 4th Street, Room 1210, Oklahoma City, OK 73102 or send comments electronically to [email protected].

1276 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 OKLAHOMA BAR FOUNDATION GRANT APPLICATIONS AVAILABLE

OKLAHOMA BAR FOUNDATION 2007 GRANT APPLICATION PACKETS NOW AVAILABLE The Oklahoma Bar Foundation (OBF) Grants and Awards Committee is accepting applications from law-related charitable organizations for 2007 grants awards. The deadline for application submission is Tuesday, July 24, 2007. The Oklahoma Bar Foundation was founded in 1946 to accomplish the charitable purposes of lawyers from all across Oklahoma. OBF is a Section 501(c)(3) nonprofit organization and is the third oldest state bar foundation in the nation. It serves as the charitable arm of the Bar Association and all licensed lawyers in Oklahoma are members of the Foundation. OBF works silently behind the scenes for Oklahoma’s children, the poor and our most vulnerable citizens. OBF is financially able to fulfill its mission of advancing education, citizenship and justice for all through the generous support of attorneys by charitable donations and participation in OBF programs such as the Fellows and IOLTA. Applications are accepted for programs and projects which: 1) Provide delivery of legal services to the poor and elderly; 2) Promote quality legal education; 3) Improve the administration of justice and promote such other programs for the ben- efit of the public as are specifically approved by the Oklahoma Bar Foundation for exclusively public purposes. Grants totaling $464,790 were approved during 2006 by the Oklahoma Bar Foundation Board of Trustees to: ! Provide delivery of civil legal aid services to the poor and elderly throughout Oklahoma and to improve the administration of justice. Grants totaling $280,000 were awarded to Legal Aid Services of Oklahoma, Inc. and the Oklahoma Indian Legal Services Low Income Taxpayer Clinic, and $73,900 was awarded for legal aid and advocacy services for children, the elderly and victims of violence to Tulsa Lawyers For Children Inc., the Oklahoma Indian Legal Services Inc. Domestic Violence Division, Oklahoma CASA Association for Children, Oklahoma CAAVA Association for Vulnerable Adults, and SANE of Southwest Oklahoma. ! Fund educational programs in the total amount of $81,500. Awards were made to the OBA Law-Related Education Teacher’s Summer Workshop, benefiting school children in grades K through 12; the OBA Young Lawyers Division High School Mock Trial Program; the statewide YMCA Oklahoma Youth & Government Program; the Mayes County and surrounding areas Youth Court; the special touring exhibit of the Oklahoma City Memorial Museum on Lincoln and the Constitution; and the Senior Law Resource Center, Inc. In addition, the Foundation awarded $29,390 in scholarships. Grant Applications should be postmarked or delivered no later than Tuesday, July 24, 2007 to receive consideration. Applications will be accepted early and early application is encouraged. Packets may be downloaded from the web page at www.okbar.org/obf or applications may be requested by writing or calling: Oklahoma Bar Foundation, P O Box 53036, Oklahoma City OK 73152-3036, (405) 416-7070

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1277 1278 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Estate PLANNING

Asset Protection Planning By Hal Wm. Ellis and LeAnn P. Drummond

he purpose of this article is to provide a framework for introducing a client to basic asset protection concepts by Tproviding an overview of Oklahoma statutes exempting assets for execution. During the last several years, many lawyers have experienced new and existing clients requesting an appointment to discuss either the general subject of asset protec- tion or a specific technique associated with asset protection plan- ning. After conducting several meetings with clients, without having any knowledge of the client’s level of understanding of basic concepts of law, it has become apparent to the authors that acquainting the client with certain general concepts of Oklahoma law can facilitate the planning process.

When a client requests an appointment to and “....every other species of forced sale for discuss asset protection (or to employ some the payment of debts...” The home must be the technique the client has heard about), the principal residence. Oklahoma, by statute, lawyer can use this opportunity to educate the principally limits the homestead by area. A client to explore his or her current estate plan homestead outside of a city or town is limited or lack thereof. This will enable the lawyer to to 160 acres. The acreage need not be contigu- put asset protection planning in the context of ous.1 For homes used as the principal residence estate planning. within any city or town the exemption is limit- 2 This article is a basic overview of fundamen- ed to one acre. If the residence is used as a res- tal concepts of Oklahoma law to be conveyed idence and as a business, at least 75 percent of to the client during the initial portion of the the square footage must be used as the princi- conference. References will be made to pal residence to qualify for the exemption. advanced materials for lawyers needing more When more than 25 percent of the square sophisticated information covering advanced footage of the residence is used for business techniques. purposes, the homestead exemption amount is limited to $5,000. The client should be HOMESTEAD informed that homestead exemption will not Oklahoma, like most U.S. jurisdictions, has apply to purchase money mortgages, taxes, protective legislation for the homestead. 31 other legal assessments for labor and material O.S. §1 exempts the home of persons residing used for improvements on the principal resi- in Oklahoma from attachment or execution dence.3

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1279 RETIREMENT PLANS well. Often, a client owns an interest in an LLC but does not have knowledge of how it fits into By statute, Oklahoma exempts retirement plans.4 The exemption is broad. It includes: an estate plan, a benefit of which is asset pro- tection planning. Clients are generally aware ...defined contribution plans and defined that limited liability companies, like corpora- benefit plans...individual retirement plans, tions, offer limited liability protection under individual retirement annuities, simplified state law. A more sophisticated client may be employee plans, Keogh plans, IRC Section aware that an LLC is a passthrough entity for 403(a) annuity plans, IRC Section 403(b) income tax purposes. In many cases, however, annuities, Roth individual retirement the client may not remember the details accounts....education individual retirement and/or analysis of the discussion with the accounts...and eligible state deferred com- lawyer, accountant or other advisor who rec- pensations plans governed under IRC ommended the LLC, LP or sub-chapter S cor- Section 457. poration. The statute makes it clear that the listing of the From an asset protection perspective, the key exemption plans is by way of example not lim- itation. Although contained in a separate sec- element of an LLC is what a creditor receives tion of 31 O.S.§1 (2001), Oklahoma college sav- in the event the creditor acquires a judgment ings plans are also exempt.5 against the owner of the interest in the LLC. A judgment creditor against a limited partner INSURANCE AND ANNUITIES has, historically by statute, been entitled to a 8 Another group of assets often held by a large charging order. A charging order gives the number of clients is insurance products. Policy judgment creditor only the rights of an proceeds and cash values, including any “plan assignee of the interest. It is an exclusive reme- or program of annuities” are exempt by statute dy. The judgment creditor does not become a 36 O.S. §3631.1 (2001). In regard to the exemp- member, does not have a right to review the tion for annuities which are exempt under 31 books and records, and does not have the right O.S. §1.A.20 and 36 O.S. §3631.1, the purpose to obtain business and tax information avail- for creation of the annuity is important. Annu- able to members. ities created for retirement under the plans exempt by Title 31 are clearly exempt. Annu- An assignee does not have a right to partici- ities arising under tort claims are not generally pate in the management of the entity. The exempt.6 The first $50,000 of claim for personal charging order allows the assignee to receive bodily injury is exempt, not the entire annuity distributions to which the member would have arising from a personal injury claim, e.g. State been entitled. Where the member’s interest is of Oklahoma ex rel. The University Hospitals v. in a closely held LLC, the result is that even at Annesley.7 the end of successful litigation, the judgment creditor with a charging order may not have When discussing this area of exemption, the won much of the value because of its status as lawyer should be clear that he or she is not rec- an assignee only entitled to distributions, with ommending an investment in insurance prod- no ability to reach the underlying assets of the ucts. A client is often times well advised to con- LLC. sult an independent financial advisor to evalu- ate the need for insurance and to decide FAMILY WEALTH PRESERVATION whether the insurance products are a wise and TRUST ACT prudent investment given the client’s portfo- lio. At this point in the initial interview with a client, the lawyer can introduce the Oklahoma UTILIZATION OF LIMITED Family Wealth Preservation Trust Act found at LIABILITY COMPANIES OR 31 O.S. §10 (2004). Enacted in 2004 and amend- LIMITED PARTNERSHIPS ed in 2005, the act allows a grantor to create a Often the client or prospective client has a trust, the assets of which are exempt from cred- general knowledge of limited liability compa- itors up to $1,000,000. Growth from the assets nies (LLC). For ease of reference, limited liabil- of a family wealth preservation trust is also ity companies will be discussed, however, the protected. A family wealth preservation trust same concepts apply to limited partnerships as can be revocable or irrevocable.

1280 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 A majority in value of “ the assets of a family wealth “preservation trust must be invested in Oklahoma assets.

ate such a trust, however, can Oklahoma exemptions benefit a non-resident where the state of residence has no such protection? The Oklahoma resident with clearly based Oklahoma assets such as real property or LLC interest with situs in Oklahoma may be a good candidate to evaluate the use of a Family Wealth Preservation Trust Act. Is the grantor willing to benefit others instead of himself or herself? Is the grantor willing to use and pay a corporate fiduciary? Is the grantor willing to A majority in value of the assets of a family expend monies to establish a trust that has not wealth preservation trust must be invested in been “tested” in litigation, especially in bank- Oklahoma assets. Oklahoma assets are a ruptcy court? These are all issues that must be defined term in 31 O.S. §11.2 (2004). Generally, considered. the Oklahoma assets must consist of interests FRAUDULENT TRANSFER in Oklahoma-based companies or assets such as real property (including mineral interests In the introductory interview, the client or located in Oklahoma). prospective client should be informed of the Uniform Fraudulent Transfer Act. Oklahoma’s Permissible beneficiaries of the trust under Fraudulent Transfer Act is found at 24 O.S. the act include the spouse, children over 18 (or §112 (2001). The client does not need, at least at issue) or a non-profit corporation. The grantor the outset, a detailed analysis of fraudulent is not a qualified beneficiary as defined by this transfers. Rather, the client should be made act. aware of the general existence of the Fraudu- lent Transfer Act. The lawyer will need to According to the act, no court has authority determine that the client is solvent. A reserve to require a person holding a power of revoca- should be available after transfers that is suffi- tion to exercise the power. The act specifically cient to protect current creditors. references §541(c)(2) of the United States Bank- ruptcy Code or successor provisions. This sec- The Oklahoma Fraudulent Transfer Act tion of the Family Wealth Preservation Trust under §121 provides for a four-year period Act attempts to insulate the act from bankrupt- wherein a cause of action must be brought or it cy code provisions. The act requires a trustee is extinguished. The claimant has one year to or co-trustee be an “Oklahoma-based bank bring an action if the alleged fraudulent trans- that maintains a trust department” or an fer is discovered under the four-year limitation “Oklahoma-based trust company.” The Okla- period. It is helpful to remember that transfers for “reasonably equivalent value” are exempt homa Family Wealth Preservation Trust Act is 9 available by statutory authority. There are from the Oklahoma Fraudulent Transfer Act. issues arising under the act. Especially trouble- CONCLUSION some are questions arising from a non-Okla- homa resident creating such a trust. The act Once the lawyer has informed the client of the basics of exemptions allowed under Okla- clearly allows a non-Oklahoma resident to cre-

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1281 homa law, the lawyer can determine the direc- tus and the client’s risk tolerance and tolerance tion of further planning. The client can esti- for complication will be assisted if the client mate the value of the residence and the understands the basics. The approach recom- amount of any existing mortgages. Next, the mended in this brief article is more likely to lawyer can discuss the amount of assets held in result in a positive outcome for the client when retirement plans and whether the client is max- contrasted to the lawyer trying to react to the imizing deferral under qualified plans or client’s driven desire for the latest “hot” tech- retirement plans. Often clients are unaware of nique. For more thorough and advanced treat- the cash value of existing insurance plans and ment of the subject of asset protection, the that such amounts are exempt. At this point reader is referred to Rose and Rothschild, 810- the client and lawyer will have an appreciation 2nd Tax Management, Asset Protection Planning of directly protected assets. (810-2nd Tax Management has an extensive bibliography beginning at p. C-1) and Osborne Many clients will have exposure to limited and Terrill, Fundamentals of Asset Protection liability companies, limited partnerships and Planning, 31 ACTEC Journal 319 (2006). corporations. Such clients many not have con- sidered the asset protection benefits of LLCs. 1. 31 O.S.§2.A. (2001). The lawyer can briefly put in context the tradi- 2. 31 O.S.§2.C. (2001). 3. 31 O.S. §5 (2001). tional estate planning benefits and risks of 4. 31 O.S. §1.A.20 (2001). transferring minority interests of an entity to 5. 31 O.S. §24. the spouse or family members via the unlimit- 6. In re Cella, Bkrtcy, W.D. Okla. 1991, 128 B.R. 574. 7. 1999 OK CIV APP 30, 976 P.2d 1109 (1999). ed marital deduction for transfers to spouses 8. See Rosen and Rothschild, 810-2nd Tax Management, Asset Pro- and using annual gift tax exemptions (current- tection Planning, p. A-37 for discussion and citations covering the back- ground of charging orders. ly $12,000 per year per donee) or the lifetime 9. 24 O.S. §116 (2001). $1,000,000 gift tax exemption for transfers to children. ABOUT THE AUTHOR After viewing the exemptions for a client’s residence, retirement plans, insurance and Hal Wm. Ellis is in the firm of assets shielded in LLCs, the lawyer and client Ellis & Drummond in Stillwater. can decide if more advanced asset protection is He practices in the areas of tax- warranted. The usual concepts will come into deferred exchanges, business play for advanced techniques that are present organizations, tax-exempt organi- in more advanced estate planning. Giving up zations, trusts and probate, estate control, complexity of resulting ownership and tax planning. He received his arrangement, cost and difficulty of compliance J.D. from OU in 1974. He is a with transfer taxes (gift and estate) and mini- fellow of the American College mization of such taxes are all issues that may of Trust and Estate Counsel where he served as the need to be addressed. Now the client can bet- state chair of Oklahoma. He is an American ter balance the benefit of irrevocable trusts and Bar Foundation fellow, and OBF trustee and past jurisdiction or situs selection, i.e. states with president. laws designed to attract trust business, e.g. Alaska, Oklahoma, Nevada, Rhode Island, LeAnn P. Drummond prac- Delaware, Missouri, Colorado, Utah or off- tices in the areas of business shore jurisdictions, e.g. Cook Islands, Cayman organizations, tax-exempt Islands, Bermuda, etc. organizations, trusts and pro- bate, estate and tax planning, The client with a traditional estate plan and tax-deferred exchanges. She involving trusts, durable powers of attorney, received her B.S. from OSU advance directives for health care, pour-over (accounting) with honors and wills, LLCs for non residential property, busi- her J.D. from OU, Order of the ness assets or operating businesses may find Coif. She is a former staff attorney for the IRS Dis- they have engaged in asset protection plan- trict Office, Oklahoma City, and special assistant in ning without knowing it. An overall evalua- the U.S. Attorney’s Office Western District. She is tion of the client’s current asset and liability chair-elect of the OBA Estate Planning, Probate and composition, likelihood of future but Trust Section. unknown problems, income and estate tax sta-

1282 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Patrick A. Williams Criminal Defense Institute Date: June 28-29, 2007 Location: Oklahoma City Marriott MCLE: OK - 12 hours, includes 1 hour of ethics; TX - 10 hours, includes 1 hour of ethics (pending approval) Registration Fee: $155 (Deadline June 13) $185 (after June 13 or at the door) contingent upon seating availability Thursday, June 28 4:30 p.m. 7:30 a.m. Registration and Continental Breakfast Ethics: a View from the Court of Criminal Appeals 8:30 a.m. Opening Remarks The Honorable Arlene Johnson 8:45 a.m. Legislative Update 5:30 p.m. Oklahoma Criminal Defense Lawyers Craig Sutter, Norman Association Reception 9:15 a.m. Court of Criminal Appeals Update Friday, June 29 James Hankins, OKC 7:30 a.m. Continental Breakfast 9:45 a.m. Crime Scene Reconstruction and 8:30 a.m. Multi-County Grand Jury Analysis David Ogle, OKC Laura Schile, Norman 9:25 a.m. Eyewitness Identification 10:25 a.m. Break David Feige, NY 10:40 a.m. Jury Selection 10:25 a.m. Break Robert Hirschhorn, TX 10:40 a.m. Low-cost, High Impact Demonstrative Noon Lunch (on your own) Evidence 1:20 p.m. Forensic Notions on Motions: Daubert David Feige, NY and Kumho 11:40 a.m. Supreme Court Update Laura Schile and Jim Drummond, Norman Steve Gruebel, Tulsa 2:20 p.m. When it is Necessary to Hire a Forensic 12:25 p.m. Wrap Up & Questions Pathologist Jim Bednar, Norman Dr. Joye Carter, VA Bob Ravitz, OKC 3:10 p.m. Break Pete Silva, Tulsa 3:25 p.m. Presentation of the Patrick A. Williams 12:45 p.m. Adjourn Indigent Defender Award Sponsored by The University of Oklahoma College of Law 3:40 p.m. The Benefits of Having a in cooperation with the College of Continuing Education Second Autopsy Performed Co-sponsored by OIDS, Oklahoma County Public Defender, Dr. Joye Carter, VA Tulsa County Public Defender and OCDLA

563-3061-701 Name: ______OBA #: ______Register By Mail Law Firm: ______College of Continuing Education Address: ______The University of Oklahoma 1700 Asp Avenue, Room B-1 City:______State: ______ZIP: ______Norman, OK 73072-6400 Day Telephone:(____)______E-mail Address: ______Fax (405) 325-7164 Amount $______ Check (Make payable to OU) (Credit Card or P.O. only)  P.O. #: ______P.O. Organization: ______By Phone (405) 325-1316 or  Visa  MasterCard  Discover  American Express (800) 522-0772, ext. 1316 (Credit Card or P.O. only) Credit Card #: ______Exp. Date: ______www.cle.outreach.ou.edu Cardholder Signature: ______Online The College of Continuing Education is committed to making its Cancellation Policy: A full refund will be granted for cancellations activities as accessible as possible. The College and the University received before June 13, 2007. After that date, an administrative fee of provide a range of special services for persons with disabilities. If 35% will be charged. No refund will be issued for cancellations received you anticipate a need for some of these services, please call 405-325- on or after the seminar date. Substitute participants may attend. 2891 or 800-522-0772, ext. 2891.

For more information, please call (405) 325-2891 or e-mail us at [email protected]

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1283 1284 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Estate PLANNING

Advance Planning for End-of-Life Care in Oklahoma By W. Thomas Coffman

he landmark cases that have been the impetus for advance Tplanning for end-of-life care, and continue to be so, are: • The 1976 case of Karen Ann Quinlan, whose parents had to go to court to have their daughter removed from an artificial respirator; • The 1990 case of Nancy Cruzan, injured in an automobile accident, whose family fought for three years to have her feeding tube removed; and • The 2005 case of Terri Shiavo, who lived in a permanent vegetative state for 15 years before courts agreed to allow her to die.

WHY ADVANCE PLANNING These four approaches are used to address With the advancement in medical technology, individual health care decisions and should not life-sustaining treatments are available that be confused with documents used to direct could maintain many of us far longer than what management of financial interests such as: we individually consider meaningful life. Mean- 1) Last will and testament (effective upon ingful life is defined by one’s own values and death); beliefs. Autonomy, usually through informed consent or refusal, is an established principle of 2) Power of attorney or durable power of the law and ethics. It allows a competent adult attorney (effective during life); to accept or reject any offered health care treat- 3) Living trust (effective upon execution and ment. The problem is that when the time comes after death); and to make these decisions, many of us will be 4) Guardian of the estate (effective during unable to make decisions; hence, the need for advance planning. life). HOW TO IMPLEMENT ADVANCE OKLAHOMA’S ADVANCE DIRECTIVE FOR PLANNING HEALTH CARE PRIOR TO MAY 17, 2006 In Oklahoma, there are four approaches to In 1991, our legislature enacted the Oklahoma advance planning that are authorized under Rights of the Terminally Ill or Persistently specific statutes governing their use. They are: Unconscious Act.1 In this law, the legislature established a statutory form for Oklahoma’s 1) Advance directive for health care; Advance Directive for Health Care. It includes 2) Durable power of attorney for health care; two types of directives: a living will and a health 3) Do-not-resuscitate consent; and care proxy. The individual executing an advance 4) Guardianship of the person. directive for health care, also known as the

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1285 “declarant,” can designate that the directive applies when: • the declarant is incapacitated and no longer IMPORTANT DEFINITIONS able to make or communicate decisions; and WHEN CONSIDERING • the declarant is in a terminal condition: defined as an incurable and irreversible con- ADVANCE PLANNING dition that even with administration of life- sustaining treatment will result in the declar- Advance Directive: A general term describing a ant’s death within six months; or variety of legal instructions persons can sign • the declarant is persistently unconscious: ahead of time to express their wishes about defined as an irreversible condition in which future medical treatment. In Oklahoma, advance thought and awareness of self and environ- directives can include a living will and a health ment are absent. care proxy (combined in the Oklahoma Advance The advance directive may not be followed Directive for Health Care), a durable power of until the attending physician and another physi- attorney for health care and a do-not-resuscitate cian find that the declarant’s condition is such (DNR) consent. that the declarant qualifies for it to apply, which Airway Intubation: Insertion of a tube through means the declarant is either 1) incapable of the airway to get oxygen into the patient’s lungs. making decisions and in a terminal condition or 2) persistently unconscious. Even if the declar- Cardiac Arrest: Absence of an effective heart- ant otherwise qualifies for the advance directive beat. to apply, in order to protect an unborn fetus, an advance directive may not be followed if the Cardiopulmonary Resuscitation (CPR): Efforts declarant is pregnant. to restore breathing and heartbeat to a patient in cardiac or respiratory arrest. Attempted car- If executed, the living will section allows the diopulmonary resuscitation (CPR) is the use of declarant 1) to have general life-sustaining treat- ment withheld, 2) to have artificially adminis- life-saving measures when the patient stops tered nutrition and hydration withheld, and also breathing. CPR can involve applying forceful 3) to direct that other treatment either be with- pressure to the chest and mouth-to-mouth resus- held or administered. Artificially administered citation to someone who is experiencing a car- hydration and nutrition must be specifically diac or respiratory arrest. CPR may also include addressed because of the Oklahoma Hydration airway intubation, mechanical ventilation, elec- and Nutrition for Incompetent Patients Act.2 tric shock (defibrillation) and intravenous (IV) This law establishes a legal presumption that medications. every incapacitated person has directed that tube feedings be administered. This presump- Defibrillation: Stimulation of the heart with tion is most clearly overcome by use of an high voltage electrical shock. advance directive. Do-Not-Resuscitate (DNR) Consent: A person’s The health care proxy section provides for the consent not to have CPR performed on him or appointment of a proxy decision maker and an her. alternate who have designated powers to make similar decisions as are in the living will. The Do-Not-Resuscitate (DNR) Order: A physician’s advance directive also has a section where order not to perform CPR on a patient. anatomical gift giving can be designated. End-of-Life: In medical terms, a time when The declarant must also make some difficult, death as the natural result of illness or advanced thought-provoking decisions. As an example, age is expected within a limited period of time when choosing a health care proxy, the proxy (usually six months to a year). must be emotionally strong-willed enough to follow the declarant’s wishes. Questions to ask End-Stage Condition: A condition caused by the declarant are: Have you informed the proxy injury, disease or illness which results in severe of your wishes and are they willing to assume and permanent deterioration those responsibilities? What specific medical Cont. on pg 1288 directives do you want to include, i.e., pain med-

1286 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 ication regardless of Oklahoma Attorney whether it might cause General Opinion 06-07 your early demise or dated April 6, 2006,4 was restriction on use of antibi- the impetus for this otics when administration change in Oklahoma law, is not life-saving but only since the official opinion prolongs the natural dying of the attorney general process? was that: Oklahoma’s Advance The Oklahoma Rights of

Directive for Health Care the Terminally Ill or Per- must be 1) signed when sistently Unconscious Act, the declarant is emotion- 63 O.S. 2001 and Supp. ally and mentally compe- 2005, §§ 3101.1 – 3201A, is tent and 2) witnessed by “ unconstitutional to the two individuals who will extent it limits an individ- verify that it was signed A durable power of ual’s right to refuse artifi- in their presence. The wit- cially administered nesses may not be family attorney for health care can hydration and artificially members or anyone who administered nutrition in might benefit from the be combined with the advance of incapacity to declarant’s death. A instances in which an notary is not required. “ advance directive. individual has a terminal Notwithstanding these condition or is persistent- execution requirements, ly unconscious. The con- the advance directive may clusion reached here does be revoked, by the declarant, by simply telling not affect the validity of an advance direc- an attending health care provider to revoke it, or tive executed before or after the issuance of it may be revoked by tearing it up or otherwise this Opinion. marking it void. Advance directives made before the new law After an advance directive is signed, it is and using old forms are still valid, but clients important to notify attending physicians and should consider executing new advance direc- have copies available so it can be followed. tives because of the expanded options. See Okla- However, a list should be kept of all who are homa Attorney General Opinion 06-32 dated given copies, such as to the declarant’s physi- Sept. 11, 2006.5 cian, health care proxy, other family members and other places where copies may be kept, such For an excellent discussion of the new law, see as the glove box of the car or a travel case. This the Health Law Advisory of August 2006 which list is necessary so that if the declarant’s family was prepared by Doerner, Saunders, Daniel situation changes and a change in the advance & Anderson L.L.P. and can be found at directive is made, the declarant can easily notify www.dsda.com. all those who have a copy of the previous DURABLE POWER OF ATTORNEY FOR advance directive. HEALTH CARE OKLAHOMA’S ADVANCE DIRECTIVE FOR Another document which is used for advance HEALTH CARE AFTER MAY 17, 2006 planning is a durable power of attorney for 6 On May 17, 2006, Gov. Brad Henry signed a health care. It is important to dissect this act to new Oklahoma Advance Directive Act3 with the understand the document. First, there are pow- emergency clause attached which provides ers of attorney that are not durable. To be Oklahomans with more options for their end-of- durable, a power of attorney must include spe- life wishes. The new statutory form can be cific language that allows its powers to extend found at 63 O.S. §3101.4.C. and copies are avail- beyond the incapacity of the individual granting able from the Oklahoma Bar Association at the power. Most durable powers of attorney are www.okbar.org. The title of the old act was the for decisions other than health care decisions. As Oklahoma Rights of the Terminally Ill or Persis- a result, the power must be specific to health tently Unconscious Act. care decisions. A durable power of attorney for health care can be combined with the advance directive. However, the instrument must be

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1287 notarized and the execution must be witnessed Cont. from pg 1286 by two individuals. Oklahoma law now allows a indicated by incompetency and complete physi- person appointed under a durable power of cal dependency for which, to a reasonable degree attorney to make decisions withholding or with- drawing life-sustaining treatment if the instru- of medical certainty, treatment of the irreversible ment complies with the requirements for a condition would be medically ineffective. health care proxy under the new Oklahoma End-Stage Dementia: Dementia such as Advance Directive Act. See Oklahoma Attorney 7 Alzheimer’s disease involves a gradual and irre- General Opinion 06-34 dated Oct. 17, 2006. versible loss of mental abilities. In end-stage DO-NOT-RESUSCITATE CONSENT dementia, people become unable to speak, walk A do-not-resuscitate consent (DNR consent) is or move; are unable to control bowel and bladder also available for use in advance planning. The functions; have decreased appetite and difficulty attractiveness of this document is its simplicity. swallowing and eating; and do not recognize This document directs that CPR not be adminis- loved ones. tered in the event of cardiac or respiratory arrest. Intravenous (IV): Going directly into the vein. Modern CPR techniques were designed to treat those who suffered a sudden, unexpected Mechanical Ventilation: Use of an artificial cardiac or respiratory arrest. When adminis- breathing machine (respirator). tered timely, CPR can restore healthy patients to Persistently Unconscious or Persistent Vegeta- normal life. CPR has gradually become the stan- tive State (PVS): PVS means an irreversible con- dard for all patients who arrest, often including those with terminal diseases with little chance of dition, as determined by the attending physician survival. To further complicate matters, individ- and another physician, in which thought and uals who knowingly requested and had a DNR awareness of self and environment are absent. consent in their medical record at one health PVS is a deep and permanent unconsciousness. care facility were resuscitated when transferred Patients may have open eyes, but they have very to a different health care facility. This situation little brain activity and are capable only of invol- stimulated the development of legislation to untary and reflex movements. Confirming a assure consumers of their right to have a DNR diagnosis of PVS requires many tests that may consent followed no matter where in the state it take several months. Unlike patients with other was initiated. The Oklahoma Do-Not-Resusci- 8 types of coma, patients in PVS will never “wake tate Act sets out a statutory DNR consent form. up” and regain health. Patients in PVS cannot However, this document should only be signed by the individual, or the individual’s legal rep- feel hunger, thirst or pain. resentative, when the individual considers him- Respiratory Arrest: Inability to breathe on one’s self or herself to be terminal and wants to be own. sure that no cardiopulmonary resuscitation is administered. Oklahoma law defines the follow- Terminal Condition: An incurable and irre- ing individuals as the only “legal representa- versible condition that even with the administra- tives” who may sign the DNR consent form tion of life-sustaining treatment will, in the opin- when the individual has not given directions ion of the attending physician and another and is unable to make his or her own decision: physician, result in death within six months. 1) a health care proxy, 2) a person appointed under a durable power of attorney for health Tube Feeding: A method of artificially delivering care, 3) the guardian of the person, or 4) a parent liquid and nutrients for patients that cannot eat of a minor child. Under this law, it is not per- or drink by mouth. Usually, for short-term tube missible for the next of kin to sign to a DNR con- feeding, a lengthy tube (called a nasogastric or sent unless designated as one of these legal rep- “NG” tube) is inserted through a patient’s nose resentatives. These legal representatives are to and esophagus into the stomach. For long-term use the “known wishes” of the incapacitated feeding, a tube may be inserted directly through person in making a DNR decision. the skin into the stomach (called a gastric or In addition, the DNR law allows a physician “PEG” tube) or into the intestines (called a jeju- to enter a DNR consent upon: nal or “J” tube). • certifying that the patient would not want to be resuscitated after finding clear and con-

1288 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 vincing evidence “ to that effect; or The guardianship process is • determining that CPR would not often slow and costly… prevent the imminent death of the patient. nicate decisions, to execute an advance directive While effective “for health care and a durable power of attorney upon signing, the for health care. shortcoming of a CONCLUSION DNR consent is that it is to be followed Completion of the documents outlined above even when it is is just the tip of the iceberg for end-of-life care medically appropri- planning. A crucial aspect of advance planning ate to resuscitate is discussion with family and significant others (example of 22- so that they know values and wishes in the care year-old who signs that should or should not be provided at the end a DNR consent and of life. Although never easy, end-of-life care is attempts suicide the hardest when the family has no idea what should not be resus- the patient wants or does not want. Do your citated because of clients and their families a favor — encourage his DNR consent). A them to consider their own values, discuss them DNR consent with their loved ones and document what they should be signed only by persons who consider want done. themselves near death. Author’s Note: Some of the above text was GUARDIANSHIP OF THE PERSON adapted for use herein from a paper prepared by Laura L. Cross J.D., R.N., Oklahoma City, and Traditionally, if a patient has made no other presented by Jan Slater Anderson, corporate provisions, (such as executing an advance direc- legal counsel for St. John Medical Center, to the tive for health care or durable power of attorney Tulsa Title and Probate Lawyers Association on for health care), the mechanism for making both Feb. 9, 2006. medical and non-medical decisions for incapac- itated patients has been to appoint a legal 1. 63 O.S. § 3101 et seq. 2. 63 O.S. § 3080.1 et seq. guardian. This approach, however, has a num- 3. 63 O.S. § 3101 et seq. ber of disadvantages. The guardianship process 4. http://tinyurl.com/2xxym3 5. http://tinyurl.com/2dye4q is often slow and costly for the patient or family. 6. Uniform Durable Power of Attorney Act; 58 O.S. § 1071 et seq. The guardian is generally required to give peri- 7. http://tinyurl.com/2httwf odic reports to the court regarding the condition 8. 63 0.S. § 3131.1 et seq. 9. 30 O.S. §3-119 and 63 O.S. § 3080.1 et seq. of the patient and the accounting of monies 10. 30 O.S. § 3-119 and 63 O.S. § 3131.1 et seq. spent on behalf of the patient. The powers of a guardian are only those prescribed by the court ABOUT THE AUTHOR and generally do not include withholding or withdrawal of life-sustaining procedures unless specifically authorized by court order. One W. Thomas Coffman, a share- exception is that a guardian of the person can holder with Johnson, Jones, consent to the withholding or withdrawing of Dornblaser, Coffman & Shorb, artificial administered hydration and nutrition if has been in the private practice authorized to do so as health care proxy in an of law in Tulsa since 1966. He is advance directive for health care.9 Also, the a past president of the Tulsa guardian of the person can sign a DNR con- County Bar Association and a sent.10 fellow of the American College of Trust and Estate Counsel. In For most adult individuals at the end of life, addition to lecturing at numerous OBA and TCBA legal guardianship is an option of last resort for continuing legal education seminars, he is co- making health care decisions. Far better options author of Oklahoma Estate Planning, Will Drafting and to ensure that wishes are honored are for each Estate Administration Forms. individual, when still able to make and commu-

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1289 1290 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Estate PLANNING

The Charitable IRA Rollover A Few Things You Ought to Know By Gary C. Clark

any Oklahomans have taken advantage of the federal income tax law that allows them to set aside a portion of Mtheir wages into an individual retirement account (IRA) before taxes and have the account grow tax free until withdrawn. Others have rolled over their 401(k) or other retirement plans to IRAs when they retire. As a consequence, IRA accounts are the principal asset of many retired persons.

For estate planners, the conventional wisdom advise some of our clients (and perhaps some of has been that distributions from IRAs generally our relatives) about this new incentive to phi- make poor lifetime giving vehicles but that des- lanthropy. In essence, this provision enables ignating a charity as the beneficiary of the IRA individual taxpayers who are at least age 70 and account at death may be an excellent choice. As one-half to make up to $100,000 in charitable noted below, lifetime gifts made from IRA with- donations from IRAs without recognizing the drawals can be expensive for the taxpayer. distribution as income, and without receiving a charitable deduction. Most of us have not yet had time to read the entire 393-page Pension Protection Act of 2006 The Pension Protection Act added new Sec- (PPA)(H.R.4, Pub. Law 109-280). No doubt it is a tion 408(d)(8) to the Internal Revenue Code low priority for all but a few brave souls. which provides that “so much of the aggregate Although its title is no indication, a number of amount of qualified charitable distributions charitable provisions and reforms are included with respect to a taxpayer made during any tax- in the act. able year which does not exceed $100,000 shall not be includible in gross income of such tax- For example, many of you may be upset to payer for such taxable year.” learn that you failed to take advantage of a char- itable contribution of a stuffed exotic animal HOW WERE CHARITABLE GIFTS FROM which more than covered the cost of your hunt- IRA ASSETS TREATED BEFORE THE PPA? ing trip to Africa before Congress decided that is not the sort of “philanthropy” it wants to Prior to the PPA, a taxpayer who wished to encourage. Apparently, trip promoters brazenly make a donation to the charity from assets held advertised outlandish charitable deductions and in an IRA would withdraw the funds and write caught Congress’ attention. One is reminded a check to the charity. The taxpayer would of the adage, “pigs get fat and hogs get report the withdrawal of funds as income and slaughtered.” the charitable contribution as a deduction. At first blush, one might assume that the transac- At least Congress gave those that qualify a tion is a wash. It is not quite so simple. In a num- consolation prize — the so-called charitable IRA ber of situations the taxpayer was disadvan- rollover. As lawyers, we may be called upon to taged. For instance, if a taxpayer had little other

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1291 income, he or she would be caught by the 50 2. The distribution must be made from a tra- percent of adjusted gross income limitation on ditional IRA or a Roth IRA. Distributions from the charitable deduction ($100,000 withdrawal 401(k) plans, 403(b) plans, pension plans and less $50,000 charitable deduction = $50,000 tax- other retirement plans do not qualify. However, able income). Even though the unused keep in mind that the taxpayer may roll over deductible portion could be carried forward for funds from the retirement plan to an IRA and up to five years, the taxpayer would be forced to then use the charitable IRA rollover. pay a tax in the year of the withdrawal and, if 3. The taxpayer’s the aggregate charitable the taxpayer died, might never be able to use the IRA rollover distributions may not exceed entire charitable deduction. For high income $100,000 in total in any tax year. There are no taxpayers, increasing the adjusted gross income limits on the number of IRAs which may be results in the phased reduction of some itemized rolled over or on the number of charitable bene- deductions a taxpayer might otherwise have ficiaries which may be benefited. All of the available. rollovers aggregated may not exceed $100,000 HOW ARE QUALIFIED CHARITABLE for the tax year per taxpayer. Thus, a couple DISTRIBUTIONS FROM IRA ASSETS could each donate up to $100,000 provided they TREATED UNDER THE PPA? have the funds in their respective IRAs to do so.

Provided that all the requirements of the 4. The distribution must be made directly statute are met, an individual taxpayer may from the IRA trustee to a public charity or a make a charitable gift or gifts of up to a $100,000 conduit private foundation. The check must be in the aggregate from traditional individual directly from the IRA trustee to a qualifying char- retirement accounts and Roth IRAs without ity. Contributions to supporting organizations including the distribution as taxable income. Of and donor advised funds do not qualify. A sam- course, there is no charitable deduction. Perhaps ple letter prepared by the Planned Giving mindful of the safaris-at-taxpayers’-expense Design Center for an account owner to request boondoggle, Congress decided to narrowly cir- the IRA trustee to make the distribution is cumscribe the opportunities to use the charita- available at www.pgdc.com/occf/item/ ble IRA rollover. ?itemID=368499. WHAT ARE THE REQUIREMENTS TO 5. The taxpayer may not receive any goods or QUALIFY FOR THE CHARITABLE IRA services in return for the distribution. ROLLOVER? Although the taxpayer may use the funds to ful- fill a pledge, he or she may not receive benefits. 1. The taxpayer must be at least age 70 and Thus, the rollover may not be used to purchase one-half when the distribution is made. For a such things as benefit tickets or donor seating number of years Conrad Teitel, with the aid of for athletic events. many charitable organizations, has lobbied Con- 6. The distribution must otherwise be fully gress for a charitable IRA rollover provision for deductible. If any portion of the distribution all persons age 59 and one-half and over. Given would not be deductible, the distribution is not the mounting federal deficits, perhaps we eligible for exclusion from income. Thus, distri- should not be surprised that Congress decided butions to split-interest funds, such as a charita- to dip its toe in the water rather than jump all ble remainder unitrust or charitable gift annuity, the way in. are not permitted. …an individual taxpayer may “ make a charitable gift or gifts “ of up to $100,000…

1292 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 …there are several groups of “ taxpayers who may find it “ advantageous to consider a charitable IRA rollover.

7. The taxpayer must obtain written substan- advise your clients that they should not count tiation of the distribution from the charitable on being able to use it in future years. donee. As in other instances of donations, the charitable organization receiving the distribu- WHO MIGHT BENEFIT FROM USING A CHARITABLE IRA ROLLOVER? tion must provide the taxpayer written substan- tiation of the donation. Administratively, some The simple fact is that, for a number of tax- difficulties may arise at the charity in connecting payers, the charitable IRA rollover will have no the distribution to the taxpayer since the check practical effect. For example, taxpayers who will be issued and mailed by the IRA trustee. have other income and wish to make only a The taxpayer should inform the charity directly small donation will probably see no difference that a distribution from the IRA trustee has been in making a qualified charitable distribution requested so that the charity will be expecting it. from the result under the prior law. On the other A sample letter from the donor to the charity hand, there are several groups of taxpayers who alerting it of the coming gift and a sample sub- may find it advantageous to consider a charita- stantiation letter from the charity to the donor ble IRA rollover. Obviously, charitable intent is prepared by the Planned Giving Design Center assumed in each case. are available at www.pgdc.com/occf/item/ ?itemID=368499. Taxpayers who wish to make large gifts. Some donors who are passionate about a cause 8. The distribution must be made during may wish to make a gift of $100,000 or more. 2006 or 2007. A cautionary note: the critical date Often their principal liquid assets are held in an is not when the taxpayer requests the transfer IRA. Now they may use this asset without but when the distribution is actually made by unwelcome side effects. the IRA trustee. Thus, the taxpayer should make Taxpayers who itemize deductions and have the request sufficiently early to assure the IRA little other income. As noted above, Section trustee can process the request before year end. 170(b) limits charitable deductions to a maxi- In one instance, a taxpayer requested the distri- mum of 50 percent of the taxpayer’s adjusted bution several weeks before year end and the gross income. If the taxpayer has little or no IRA trustee mailed the check before Dec. 31 but other income, under the prior law he or she to the wrong address (using a bad zip code). would likely pay an income tax on a portion of When the Postal Service returned the envelope the withdrawal from the IRA to make the chari- in January, the IRA trustee issued a replacement table contribution. If the requirements of the check dated in January 2007. Despite the fact the PPA are met that is no longer the case. The char- taxpayer did all that he or she could do, the IRA itable IRA rollover allows them to donate up to trustee’s failure to perform appropriately $100,000 without the potentially adverse impact deprived the taxpayer of the benefit of using the of the 50 percent of the adjusted gross income charitable IRA rollover for 2006. limitation. President Bush has asked Congress to make Taxpayers who itemize deductions and are the charitable IRA rollover a permanent part of already donating 50 percent of their adjusted the tax code. It is not clear how the new Democ- gross income to charity. This group is a varia- ratic majorities in the House and Senate will tion of the prior group. They may have signifi- respond. Charitable organizations are collecting cant other income but are already giving chari- data to provide Congress on the impact of the ties at least 50 percent of their adjusted gross rollover provision. For the present you should income Any further gifts would be limited by

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1293 Section 170(b) and tax would be payable unless taxation (for married couples the threshold is they use the charitable IRA rollover. $32,000). Up to 85 percent is taxable if the com- bined income is more than $34,000 for a single Taxpayers who are high income and will suf- taxpayer or $44,000 for a married couple. Obvi- fer a phaseout of deductions if their income is ously, avoiding an addition to income that caus- increased. Itemized deductions for a single tax- es the taxpayer to cross the threshold is advan- payer or a married couple filing jointly taxpayer tageous to the taxpayer. are reduced by 3 percent of the taxpayer’s adjusted gross income in excess of $150,500. This Taxpayers needing to take a “minimum may not affect many taxpayers and, even then, required distribution” from their IRA even may not have a large impact but should not be though the funds are not needed. You may overlooked. have a client who has enough income to live on and does not want to be forced to withdraw Taxpayers who claim the standard deduction funds from his or her IRA and pay the taxes on their return. Many retired taxpayers have incurred. The Joint Committee on Taxation’s paid off their mortgage and, with Medicare cov- Technical Explanation of the Pension Protection erage, have medical expenses that do not exceed Act makes clear that qualified charitable distri- the floor of 7.5 percent of adjusted gross income butions count toward the minimum required to be deductible. For them, taking the standard distribution even though excluded from income. deduction may be the most beneficial approach. Whether they wish to make charitable gifts that CONCLUSION exceed the standard deduction or lesser gifts, they will be better off taking advantage of the The Pension Protection Act has enabled older charitable IRA rollover. For example, if they taxpayers who have IRAs and wish to make wish to make a gift of $5,000 without the chari- charitable donations without some of the disin- table IRA rollover, they will be required to centives that were inherent under the prior law. include $5,000 of additional income which Hopefully, the information in this article may would be only partially offset by an increased assist you in advising them through the maze. If standard deduction. If they wish to make a we are fortunate, Congress will either extend or charitable gift which would be greater than the make permanent the provision and give us a standard deduction, the adverse effect might be longer time to use our knowledge of the charita- even greater since they lose the benefit of the ble IRA rollover. You may even have an oppor- standard deduction. For example, assume a sin- tunity to expand your client base, since many gle taxpayer has ordinary income of $30,000 charities are lobbying for a lowering of the min- (presumably used for living expenses) and imum age to 59 and one-half which would coin- wishes to make a gift of $25,000 from an IRA. cide with the leading edge of the baby boomer Under prior law without the gift, he or she generation. It appears likely that Congress will would pay almost $2,700 in federal income tax watch the revenue impact on the federal budget after the exemption and standard deduction. If of the new provision before taking any further the taxpayer withdraws the $25,000 from the action. IRA without relying on the charitable IRA rollover, the taxpayers’ income is increased by $25,000 and is offset by a charitable deduction, but the taxpayer loses the effect of the standard ABOUT THE AUTHOR deduction and pays over $3,600 in federal income taxes. Thus, the Pension Protection Act Gary C. Clark is vice president allows this standard deduction taxpayer to and general counsel of the Okla- make the $25,000 gift while saving over $900 in homa State University Founda- federal income taxes. tion. He previously was in private Taxpayers whose Social Security benefits law practice for more than 28 might be taxed as a result of receiving addi- years primarily in the area of tional income. The vast majority Oklahomans estate planning, trusts and over age 70 and one-half receive Social Security estates, most recently as a share- benefits. If the total adjusted gross income holder/director in Crowe and (including tax-exempt interest) plus one-half the Dunlevy’s Tulsa office. Mr. Clark has served as OBA Social Security benefits a single person receives and TCBA president as well as OBA governor and is more than $25,000, up to 50 percent of the Oklahoma Bar Foundation trustee. Social Security benefits are subject to income

1294 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 STATE OF OKLAHOMA, DEPARTMENT OF STATE OF OKLAHOMA, DEPARTMENT OF HUMAN SERVICES CHILD SUPPORT HUMAN SERVICES CHILD SUPPORT ENFORCEMENT ANNOUNCEMENT # 07-C055 ENFORCEMENT ANNOUNCEMENT # 07-C056 The Tulsa East Child Support Office has an opening for The Tulsa County Child Support Office has an opening a full-time attorney (CSE Attorney IV, $4078.70 monthly) for a full-time attorney (CSE Attorney IV, $4078.70 with experience in child support enforcement. This posi- monthly) with experience in child support enforcement. tion will be located with the Tulsa-CSE II (Tulsa East) office This position will be located in the Tulsa County West office located at 3840 S. 103rd E. Ave., Tulsa, Oklahoma. The posi- located at 440 S. Houston, Suite 401 Tulsa, Oklahoma. The tion involves preparation and trial of cases in child support position involves preparation and trial of cases in child related hearings in district and administrative courts, and support related hearings in district and administrative preparation and filing of pleadings incident thereto. Duties courts, and preparation and filing of pleadings incident will also include consultation and negotiation with other thereto. Duties will also include consultation and attorneys and customers of Child Support Enforcement negotiation with other attorneys and customers of Child Division. Position will assist office staff with preparation of Support Enforcement Division. Position will assist office legal documents and insure their compliance with ethical staff with preparation of legal documents and insure their considerations. Experience in the IV-D program and in compliance with ethical considerations. Active member- juvenile proceedings preferred. Active membership in the ship in the Oklahoma Bar Association is required. This Oklahoma Bar Association is required. This position will be position will be underfilled as a Child Support Enforce- underfilled as a Child Support Enforcement Attorney III ment Attorney III (beginning salary $3703.36 monthly), (beginning salary $3703.36 monthly), Child Support Child Support Enforcement Attorney II (beginning salary Enforcement Attorney II (beginning salary $3380.14 month- $3380.14 monthly) or as a Child Support Enforcement ly) or as a Child Support Enforcement Attorney I (begin- Attorney I (beginning salary $3158.67 monthly), dependent ning salary $3158.67 monthly), dependent on Child Sup- on Child Support or Family Law experience. Interested port or Family Law experience. Interested individuals must individuals must send a cover letter noting announcement send a cover letter noting announcement number 07-C055, number 07-C056, resume, and a copy of current OBA card resume, and a copy of current OBA card to: Department of to: Department of Human Services, Attn.; Human Resource Human Services, Attn.; Human Resource Management Management Division, P.O. Box 25352, Oklahoma City, OK Division, P.O. Box 25352, Oklahoma City, OK 73125. Appli- 73125. Application must be received no earlier than 8:00 cation must be received no earlier than 8:00 AM Monday AM Monday May 14, 2007 and no later than 5:00 PM Fri- May 14, 2007 and no later than 5:00 PM Friday May 25, day May 25, 2007. THE STATE OF OKLAHOMA IS AN 2007. THE STATE OF OKLAHOMA IS AN EQUAL EQUAL OPPORTUNITY EMPLOYER. OPPORTUNITY EMPLOYER.

COUNSEL

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1295 1296 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Estate PLANNING

Probate Avoidance with POD and TOD By Mark W. Curnutte

robate avoidance is often a desired goal of the client. This goal can be achieved by using various estate planning tools Por techniques, including joint tenancy and revocable trusts, and by using proper beneficiary designations on life insurance, annuities and retirement accounts. One commonly employed probate avoidance device is the “payable on death” or POD account. This article reviews the Oklahoma statutes dealing with POD accounts and similar arrangements such as Totten trusts and TOD registration of securities.

PAYABLE ON DEATH ACCOUNTS deceased beneficiary unless the rules for des- ignation of a contingent beneficiary have Several statutes deal specifically with POD been followed (see below). Each beneficiary accounts. The practitioner must first determine whether the account has been or will be estab- must be a trust, an individual or a nonprofit lished at a bank, savings and loan, or credit organization exempt from taxation pursuant union to identify the applicable statute. to the provisions of I.R.C. § 501(c)(3). This means a for-profit entity, such as a corpora- Bank Accounts tion or limited liability company, and certain Section 901 of the Oklahoma Banking Code1 organizations exempt from the federal applies to all forms of bank deposit accounts, income tax under other provisions of the including, but not limited to, transaction Internal Revenue Code, cannot be named as accounts, savings accounts, certificates of a POD beneficiaries of a bank account. deposits, negotiable order of withdrawal • A deposit account with a POD designation 2 (NOW) accounts and MMDA accounts. Sec- constitutes a contract between the account tion 901B indicates that: owner(s) and the bank that, upon the death • When a deposit has been made in any bank of the last surviving account owner, and using the terms “Payable on Death” or after payment of account proceeds to any “POD,” the deposit shall be paid on the secured party with a valid security interest account owner’s death to one or more desig- in the account, the bank will hold the funds nated beneficiaries. If an individual benefici- for or pay them to the named primary bene- ary is not living on the date of the account ficiary or beneficiaries if living. If the named owner’s death, the deceased beneficiary’s primary beneficiary is not then living, and share is to be paid to the estate of the only one primary beneficiary has been desig-

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1297 …the bank will hold the funds “ for or pay them to the named “ primary beneficiary or beneficiaries if living.

nated, the account shall instead be held for (Name of Beneficiary), and (Name of Ben- or paid to the estate of the deceased primary eficiary, in equal shares.)” beneficiary unless contingent beneficiaries • If only one primary POD beneficiary has have been designated by the account owner been designated, the account owner may as provided below. add the following, or words of similar mean- ing, in the style of the account or in the • Each POD beneficiary designated on a account agreement: deposit account shall be regarded as a pri- mary beneficiary unless specifically desig- “If the designated POD beneficiary is nated as a contingent beneficiary. deceased, then payable on the death of the account owner to (Name of Beneficiary), • If there is only one primary POD benefici- (Name of Beneficiary), and (Name of Ben- ary on the account and that beneficiary is an eficiary), as contingent beneficiaries, in individual, the account owner may desig- equal share.” nate one or more contingent beneficiaries for • Each beneficiary is entitled to a proportion- whom the funds shall be held or to whom ate share of the account proceeds only after the funds shall be paid if the primary benefi- the death of the last surviving account ciary is not living when the last surviving owner, and after payment of account pro- account owner dies. If there is more than one ceeds to any secured party with a valid secu- primary beneficiary on a deposit account, rity interest in the account. In the event of the contingent beneficiaries cannot be named. death of a beneficiary prior to the death of • If the only primary POD beneficiary is not the account owner, the deceased beneficia- ry’s share shall go to the estate of that bene- living and one or more contingent benefici- ficiary unless one or more contingent benefi- aries have been designated, the funds shall ciaries have been designated as above pro- be held for or paid to the contingent benefi- vided. All designated primary POD benefici- ciaries in equal shares, and shall not belong aries shall have equal shares. All designated to the estate of the deceased primary benefi- contingent POD beneficiaries shall have equal ciary. If the only primary beneficiary is not shares if the sole primary beneficiary is living, and one or more contingent benefici- deceased. aries have been designated, the share that otherwise would belong to any deceased Savings and Loan Accounts contingent beneficiary shall instead be held Section 381.39a of the Oklahoma Savings and for or paid to the estate of that deceased con- Loan Code3 applies to all forms of deposit tingent beneficiary. accounts established at a savings and loan association or savings bank, including, but not • In order to designate multiple primary POD limited to, transaction accounts, savings beneficiaries for a deposit account, the accounts, certificates of deposits, negotiable account should be styled as follows: order of withdrawal (NOW) accounts, and 4 “(Name of Account Owner), payable on money market deposit accounts (MMDA). The statutory provisions applicable to savings death (or POD) to (Name of Beneficiary),

1298 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 and loan POD accounts are similar to the pro- union POD accounts (but not savings and loan visions dealing with such accounts at a bank, accounts) will be subject to the same rules. with one major exception. Contingent beneficiar- TOTTEN TRUST ACCOUNTS ies may be designated only if the account is a bank account with one primary beneficiary. Con- Black’s Law Dictionary (8th ed. 2004) defines tingent beneficiaries cannot be designated if the a Totten trust as follows: account is a savings and loan account. The pro- ceeds of a savings and loan account must be A revocable trust created by one’s deposit paid to the beneficiary’s estate if the benefici- of money, typically in a savings account, in ary dies before the account owner. the depositor’s name as trustee for anoth- er. “Totten trust is an early form of “pay on Section 381.39a does not contain language death” account, since it creates no interest like that found in the banking statute, which in the beneficiary unless the account specifies that each beneficiary must be a trust, remained at the depositor’s death. Its an individual, or a nonprofit organization name derives from the earliest decision in exempt from taxation pursuant to I.R.C. which the court approved the concept, § 501(c)(3). However, the statutory language even though the formalities of will execu- used in section 381.39a suggests that the bene- tion were not satisfied: In re Totten, 71 N.E. ficiary of a savings and loan account must be a 748 (N.Y. 1904). A Totten trust is common- trust or natural person. In this sense the sav- ly used to indicate a successor to the ings and loan provision may be more restric- account without having to create a will, tive than its bank counterpart. and thus it is a will substitute. — Also termed tentative trust; bank-account trust; Credit Union Accounts savings-account trust; savings-bank trust; Credit union POD accounts are governed by trustee bank account. 6 O.S. § 2025. This section presently indicates Stokes Opinion that when shares are owned or a deposit made by a member using the terms “Payable on In Matter of Estate of Stokes, 1987 OK 119, 747 Death” or “Payable on the Death of” or P.2d 300, the Oklahoma Supreme Court stated: “POD,” such shares and deposit shall be ¶ 21 The case before us shares many simi- payable on the member or owner’s death to larities to the famous New York case of In the named beneficiary if living and if not liv- Re Totten and its progeny. There, the New ing, to the named beneficiary’s estate. Unfortu- York court found the act of depositing nately, section 2025 is silent with respect to the money in a savings account in the name of following issues: the depositor and another, beneficial • Can the credit union POD account have mul- owner, was sufficient to create a trust tiple or joint owners? The statutory language which the beneficiary could enforce upon suggests that the account must have a single the death of the depositor. Since this deci- owner. sion, the “Totten Trust” or tentative trust, has been recognized in many jurisdictions • Can the account owner designate more than as a valid, trust arrangement which, one primary beneficiary on the account? The though revocable during the depositor’s statutory language suggests that the POD lifetime, was sufficient to pass the res of account must have a single beneficiary. the deposit to the beneficiary upon the It also appears that contingent beneficiaries depositor’s death, independently of the cannot be designated on a credit union POD depositor’s estate. account because the account must be paid to The Supreme Court observed that it had not the named beneficiary’s estate if the benefici- previously ruled on whether a “Totten Trust” ary dies before the account owner. may be created in Oklahoma, and determined These statutory deficiencies will be eliminat- that the drafters of 6 O.S. 1981 §902 intended to ed when a recent amendment to section 2025 allow the sort of trust described in In Re Totten. becomes effective on January 1, 2008. Begin- The court then held that a valid trust may be ning on that date the provisions of section 2025 created by a depositor who places money on will be nearly identical to the provisions of 6 deposit in any regular savings scheme, includ- O.S. §901B, meaning that bank and credit ing the purchase of a certificate of deposit,

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1299 when such deposit is made in the name of the trust agreement or certificate of trust, a portion depositor as trustee for other, designated indi- of subsection B that may apply to Totten trust viduals. The court concluded that the trust arrangements — that is, deposits which are “in thus created, without more, is revocable and form in trust for another, and no other or fur- tentative during the life of the depositor, and ther notice of the existence and terms of a legal vests in and is enforceable by the beneficiary and valid trust shall have been given in writ- upon the depositor’s death. The res of such a ing to the bank” (or savings and loan). Section trust passes to the beneficiary by its own 902B(3) indicates in relevant part that: terms, independently of the depositor’s estate. . . . On the death of the trustee or the sur- A Totten trust account may be established at vivor of two or more trustees, the bank a bank or savings and loan institution. may pay all or part of the withdrawal Whether such an account may be opened at a value of the account with interest as pro- credit union is unclear. Although Matter of vided by the certificate of trust. If the Estate of Stokes, supra, suggests it may be possi- trustee did not deliver a certificate of trust, ble to establish a Totten trust at a credit union, the bank’s right to treat the account as the concept has no express statutory support in owned by a trustee ceases on the death of 5 Oklahoma. the trustee. On the death of the trustee or Statutory Provisions the survivor of two or more trustees, the bank shall, unless the certificate of trust The provisions for creation of a Totten trust provides otherwise, pay the withdrawal account at a bank6 and savings and loan7 are, as value of the account, with interest, in equal of this writing, nearly identical. The Banking shares to the persons who survived the Code version of the Totten trust statute, 6 O.S. trustee, are named as beneficiaries in the § 902, indicates that: certificate of trust, and can be located by A. Whenever any deposit shall be the bank from its own records. If there is made in a bank by any person which is in not a certificate of trust, payment of the form in trust for another, and no other or withdrawal value and interest shall be further notice of the existence and terms of made as provided by Title 58 of the Okla- a legal and valid trust shall have been homa Statutes. given in writing to the bank, in the event of The meaning of this statutory language, and its the death of the trustee, the same, or any applicability to Totten trust accounts, is part thereof, together with the interest unclear. The reference to Title 58 of the Okla- thereon, may be paid to the person or per- homa Statutes confuses the issue even more. sons for whom the deposit was made. A Does this language suggest that Totten trust deposit held in this form shall be deemed funds are subject to probate in the owner qua to constitute a Totten Trust. A revocation of trustee’s estate upon death if there is no writ- such trust may only be made in writing to ten trust agreement or certificate of trust? Or the bank and the bank shall not suffer any do the provisions of § 902A (or § 381.40a, sub- liability for payment of funds pursuant to section A) govern, such that the funds may be the trust unless and until it receives writ- paid to the beneficiary or beneficiaries for ten notice of revocation. whom the deposit was made upon the account B. 1. If a deposit account is opened owner’s death? Given the widespread avail- with a bank by one or more persons ability of POD accounts, perhaps Totten trust expressly as a trustee for one or more other arrangements should be avoided because of named persons and further notice of the these uncertainties. existence and terms of a legal and valid trust is not given in writing to the bank, the OKLAHOMA UNIFORM TOD SECURITY bank may accept and administer the REGISTRATION ACT account as set forth in subsection A of this section. The Oklahoma version of the Uniform TOD Security Registration Act, 71 O.S. §§901 et seq., Although the remaining provisions of subsec- was enacted in 1994. The Oklahoma modifica- tion B of §902 seem to deal primarily with tions to the Uniform Act8 are minor in scope deposit accounts opened pursuant to a written and clearly identified in the historical notes.

1300 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Following are some of “ the highlights of the Okla- homa Act: …or the last to die of all • Section 902 contains various definitions. The multiple owners… term “beneficiary form” is defined as a registra- proof of death of all owners and compliance tion of a security which “with any requirements of the registering indicates the present entity, a security registered in beneficiary owner of the security form may be reregistered in the name of the and the intention of the beneficiary or beneficiaries who survived the owner regarding the death of all owners. person who will become the owner of • Section 908B provides that if no benefici- the security upon the ary survives the death of all owners, the death of the owner. Sec- security belongs to the estate of the tion 905 states that a deceased sole owner or the estate of the security, whether evi- last to die of all multiple owners. denced by certificate or • Section 908C states that a registration in account, is registered in beneficiary form is not effective, as against beneficiary form when an estate of a deceased sole owner or the the registration includes last to die of multiple owners, to transfer to a designation of a bene- a beneficiary sums needed to pay debts, ficiary to take the own- taxes and expenses of administration, ership at the death of including statutory allowances to the sur- the owner or the deaths of all multiple viving spouse, minor children and owners dependent children, if other assets of the • Section 903 provides that registration in ben- estate are insufficient. A TOD beneficiary is eficiary form is available only with respect to liable to account to the deceased owner’s a security held in “sole ownership by one personal representative for securities so individual or multiple ownership by two or re-registered in the beneficiary’s name or more with right of survivorship, rather than their proceeds to the extent necessary to as tenants in common.” discharge such claims and charges remain- ing unpaid after the application of the • Section 906 indicates that registration in ben- assets of the decedent’s estate. However, a eficiary form may be shown by the words proceeding to assert this liability may not “transfer on death” or the abbreviation be commenced unless the personal repre- “TOD,” or by the words “pay on death” or sentative has received a written demand the abbreviation “POD” after the name of the by a surviving spouse, a creditor or one registered owner and before the name of a acting for a minor dependent child of the beneficiary. decedent, and a proceeding may not be • Section 907 provides that the designation of commenced later than two years following a TOD beneficiary on a registration in bene- the death of the decedent. ficiary form has no effect on ownership until • Section 909 contains provisions protecting the owner’s death. Registration in benefici- the registering entity (i.e. broker, bank or ary form may be canceled or changed at any transfer agent) from liability for re-registra- time by the sole owner or all then surviving tion or payment made before receiving writ- owners without the consent of the benefici- ten notice from any claimant to any interest ary. in the security objecting to implementation • Section 908A indicates that on death of a sole of a registration in beneficiary form. owner or the last to die of all multiple own- • Section 910 defines a “nonprobate transfer,” ers, ownership of securities registered in as the term is used in that section, as a beneficiary form passes to the beneficiary or transfer on death of an owner whose last beneficiaries who survive all owners. On domicile was in Oklahoma resulting from a

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1301 registration in beneficiary form. the demand and not of the estate. A personal representative who declines in good faith to • Section 910C indicates that a transferee of a commence a requested proceeding incurs no nonprobate transfer is subject to liability to personal liability for declining. any probate estate of the decedent for allowed claims against that estate and statu- • Section 910H states that a proceeding under tory allowances to the decedent’s spouse and this section must be commenced within one children to the extent the estate is insufficient year after the decedent’s death, but a pro- to satisfy those claims and allowances. The ceeding on behalf of a creditor whose claim liability of a nonprobate transferee may not was allowed after proceedings challenging exceed the value of nonprobate transfers disallowance of the claim may be com- received by that transferee. menced within 60 days after final allowance of the claim. • Section 910D provides that nonprobate transferees are liable for the insufficiency • Section 910I indicates that unless a written described in subsection C of that section in notice asserting that a decedent’s estate is the following order of priority: insufficient to pay allowed claims and statu- tory allowances has been received from the 1. A transferee designated in the dece- decedent’s personal representative, a trustee dent’s will or any other governing receiving a nonprobate transfer is released instrument, as provided in the instru- from liability under this section with respect ment; to any assets distributed to the trust’s benefi- ciaries. Each beneficiary to the extent of the 2. The trustee of a trust serving as the distribution received becomes liable for the principal nonprobate instrument in the amount of the trustee’s liability attributable decedent’s estate plan as shown by its to that assets received by the beneficiary. designation as devisee of the dece- dent’s residuary estate or by other facts Note that portions of section 910 appear to or circumstances, to the extent of the be inconsistent with section 908C. Under the value of the nonprobate transfer latter section, a transferee beneficiary may be received; liable to the personal representative for sums 3. Other nonprobate transferees, in pro- needed to pay debts, taxes and expenses of portion to the values received. administration, including statutory allowances to the surviving spouse, minor children and • Section 910E indicates that a provision made dependent children, if other assets of the estate in one instrument may direct the apportion- are insufficient. Under section 910, transferee ment of the liability among the nonprobate liability exists only for allowed claims against transferees taking under that or any other that estate and statutory allowances to the governing instrument. decedent’s spouse and children to the extent • Section 910F states that, upon due notice to a the estate is insufficient to satisfy those claims nonprobate transferee, the liability imposed and allowances. Section 910 fails to include by this section is enforceable in proceedings two important items covered in section 908, in this state, whether or not the transferee is namely taxes or other expenses of administra- located in this state. tion. Furthermore, section 910H provides that a proceeding under section 910 must be com- • Section 910G provides that a proceeding menced within one year after the decedent’s under this section may not be commenced death, but a proceeding on behalf of a creditor unless the personal representative of the whose claim was allowed after proceedings decedent’s estate has received a written challenging disallowance of the claim may be demand for the proceeding from the surviv- commenced within 60 days after final ing spouse or a child, to the extent that statu- allowance of the claim. On the other hand, sec- tory allowances are affected, or a creditor. If tion 908C indicates that a proceeding to assert the personal representative declines or fails transferee liability may not be commenced to commence a proceeding after demand, a later than two years following the death of the person making demand may commence the decedent. These statutory inconsistencies proceeding in the name of the decedent’s apparently arose when section 910 was estate, at the expense of the person making amended in 1999.

1302 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 …FDIC insurance coverage “ should be considered in “ the development…

• Section 911A provides that a registering enti- clients who utilize a revocable trust as the prin- ty offering to accept registrations in benefici- cipal estate transmission instrument. The client ary form may establish the terms and condi- may wish to designate the trust as the POD tions under which it will receive requests for beneficiary of a checking account or certificate registrations in beneficiary form and for of deposit, or as the TOD beneficiary of a bro- implementation of registrations in benefici- kerage account or certain securities. Use of the ary form. These terms and conditions may POD arrangement allows the client to retain include the following: 1) proving death; 2) ownership of a checking account in his indi- avoiding or resolving problems created by vidual name and designate others as “author- the divorce or death of a beneficiary in com- ized signers” on the account. This technique pliance with section 178 of Title 15 of the also gives the client’s attorney-in-fact or Oklahoma Statutes; 3) avoiding or resolving guardian (but not the successor trustee) access any problems concerning fractional shares; to funds or securities in the POD/TOD 4) designating primary and contingent bene- account if the client becomes incapacitated. ficiaries; and 5) substituting a named benefi- FDIC Coverage. In some instances, FDIC ciary’s descendants to take in the place of the insurance coverage should be considered in named beneficiary in the event of the benefi- the development and implementation of the ciary’s death. estate plan. The owner of a POD account is • Section 911B indicates that substitution may insured up to $100,000 for each beneficiary if all be indicated by appending to the name of of the following requirements are met: the primary beneficiary the letters “LDPS,” 1. The account title must include com- standing for “lineal descendants per stir- monly accepted terms such as pes.” This designation substitutes a deceased “payable-on-death,” “in trust for,” “as beneficiary’s descendants who survive the trustee for” or similar language to indi- owner for a beneficiary who fails to so sur- cate the existence of a trust relation- vive, the descendants to be identified and to ship. These terms may be abbreviated share in accordance with the law of the ben- (for example “POD,” “ITF” or “ATF”). eficiary’s domicile at the owner’s death gov- erning inheritance by descendants of an 2. The beneficiaries must be identified by intestate. name in the deposit account records of the insured bank. • Section 911D provides various illustrations of registrations in beneficiary form. For 3. The beneficiaries must be “qualifying,” example: a) sole owner-sole beneficiary: John meaning that the beneficiaries must be S Brown TOD (or POD) John S Brown Jr., and the owner’s spouse, child, grandchild, b) multiple owners-sole beneficiary: John S parent or sibling. Adopted and step Brown Mary B Brown JT TEN TOD John S children, grandchildren, parents and Brown Jr. siblings also qualify. Others including in-laws, cousins, nieces and nephews, ESTATE PLANNING WITH friends, organizations (including chari- POD AND TOD ties) and trusts do not qualify.9 The POD device is often employed to avoid If the POD account has multiple owners, then probate, and its use may be indicated for each co-owner’s share of the joint POD

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1303 account may qualify for coverage as shown in ciaries may get hurt. The practitioner must the following example:10 determine whether a POD account has been or will be established at a bank, savings and loan, Account Amount Amount or credit union to identify the governing Okla- Account Title Balance Insured Uninsured homa statute. Remember that contingent bene- Husband & Wife POD 3 Children $600,000 $600,000 $0 ficiaries can be designated only if the account is a bank account with one primary beneficiary.11 Husband POD Wife $100,000 $100,000 $0 Contingent beneficiaries cannot be designated Wife POD Husband $100,000 $100,000 $0 if the account is a savings and loan account. The proceeds of a savings and loan account must Husband POD Brother and Father $200,000 $200,000 $0 be paid to the beneficiary’s estate if the benefi- Husband & Wife POD Grandchild $300,000 $200,000 $100,000 ciary dies before the account owner.

Total $1,300,000 $1,200,000 $100,000 Practitioners may wish to avoid Totten trust accounts or arrangements altogether because of uncertainties inherent in the applicable Tot- ten trust statutes. POD accounts may be the Explanation: All but one POD account is fully better choice. insured. The POD account owned by the hus- band and wife jointly for one grandchild is Registration of securities in “beneficiary insured up to $200,000 because each owner is form,” as in “John Doe TOD Mary Doe” can be only entitled to $100,000 insurance coverage an effective probate avoidance device, espe- for each named qualifying beneficiary. cially given the increasing popularity of single member limited liability companies treated for Tax Apportionment income tax purposes as disregarded entities. Estate tax apportionment issues may come Remember TOD when you help the next client into play if significant assets are transferred by set up a new business entity. way of POD/TOD beneficiary designations. 1. 6 O.S. §§ 101 et seq. The Oklahoma Banking Code provision Although these issues are beyond the scope of dealing specifically with POD accounts is 6 O.S. §901B. this article, note that 58 O.S. § 268 provides 2. 6 O.S. § 901C. 3. 18 O.S. §§ 381.1 et seq. The Oklahoma Savings and Loan Code that: provision dealing specifically with POD accounts is 18 O.S. § 381.39a, subsection B. For property other than the probate estate 4. 18 O.S. § 381.39a, subsection C. 5. Whether the Totten trust arrangement is available at credit passing directly upon the death of a dece- unions may be of little practical importance given the availability of dent to another, by law, the executor or credit union POD accounts. administrator of the estate of the decedent 6. 6 O.S. § 902. 7. 18 O.S. § 381.40a. shall have the authority to bring an action 8. An informative “Summary”of the Uniform TOD Security Regis- in the district court having jurisdiction of tration Act can be found at http://www.nccusl.org. 9. See the publication Your Insured Deposits, FDIC’s Guide to Deposit the probate estate for the collection of any Insurance Coverage (updated April 2006) at http://www.fdic.gov. of the state or federal estate tax due and 10. Id. 11. Effective January 1, 2008, designation of contingent beneficiar- owing by the nonprobate beneficiaries ies will also be allowed with respect to credit union POD accounts after ten (10) days following service of under the terms of 6 O.S. §2025. notice by such executor or administrator upon such nonprobate beneficiary before suit is filed. Such notice shall state the ABOUT THE AUTHOR amount of federal or state tax due to the executor or administrator by the nonpro- Mark Curnutte is a partner with bate beneficiary. In such actions, the court Logan & Lowry LLP in Vinita. costs and reasonable attorney fees may be He is a fellow of the American assessed in favor of the prevailing party. College of Trust and Estate CONCLUSION Counsel and American Bar Used correctly, POD and TOD arrangements Foundation. He currently serves can be another effective weapon in the practi- as Oklahoma Bar Foundation tioner’s probate avoidance arsenal. Used president. incorrectly, the client and the intended benefi-

1304 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 ACCESS AND VISITATION Midwest Special Needs Trust GRANT MONEY The Oklahoma Department of Human Services, Child Support Enforcement Division is soliciting applications from courts, local public agencies and Formerly Missouri Family Trust nonprofit private entities, for contracts to establish and administer local programs to increase non- SPECIAL NEEDS TRUSTS custodial parents’ access to and visitation with …. for persons with disabilities their children. Activities may include mediation, counseling, education, development of parenting plans, visitation monitoring/supervision and neu- tral drop-off and pickup or developing guidelines A non-profit organization in business since for visitation and alternative custody arrange- ments. Federal funding of $100,000.00 is available 1991, MSNT administers: for this year to accomplish this goal. Entities awarded contracts under this program may use Third Party SNTs the funding awarded to pay for 90% of cost for approved activities. The Applicant must provide First Party SNTs 10% of the cost in the form of a cash or in-kind 42 U.S.C. Section 1396p(d)(4)(A) match. Applications must be postmarked no later than May 31, 2007. Pooled Medicaid Payback Trusts For Application information contact Bettite 42 U.S.C. Section 1396p(d)(4)(C) Davenport or Jim Sielert, Division of Child Support Enforcement, Capitol Station, Box Reasonable Fees Š Low Minimum Balance Requirement 53552, Oklahoma City, OK 73152, Telephone (405) 522-2875, Email: [email protected] or For consultation or to request trust documents call [email protected]. toll free 1-888-671-1069 [email protected] www.midwestspecialneedstrust.org

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1305 OBA AWARDS

Honor Your Peers with an OBA Award Nomination

It’s time to recognize your deserving fellow tions you think are worthy of these prestigious lawyers and organizations with a nomination awards.” for an OBA Award. This year’s awards will be No special forms are required to make a presented at the Annual Meeting to be held nomination, but a form is available at Nov. 7-9, 2007, in Oklahoma City. www.okbar.org if the nominator would prefer “There is no greater honor than to be recog- to use it. For people who want more direction nized by one’s peers in the profession,” said or need help getting started, nomination sug- OBA Awards Committee Chair Gary C. Clark. gestions are also available online. Here are “This year, we’ve created the new Trailblazer some things to keep in mind. award, which will honor visionary leaders whose F efforts have made a profound Nominations must Nominations must be received by Monday, Aug. 13, 2007. impact upon our profession be received by and community. The commit- Monday, tee recognizes the importance F The entire nomination — letter, of honoring those who serve Aug. 13, 2007. supporting materials, clippings, as role models.” seconding letters and attachments It doesn’t take much time included — may be no longer to nominate colleagues who than five single-sided, 8 1/2” x have performed outstanding 11” pages. No exceptions! work or who exemplify the very best attributes of the F The name of the person or legal profession. Nomina- organization making the nomi- tions are sought for individ- nation should be included in ual lawyers as well as out- the nomination. standing county bar associa- tions and committees. Bar members, nonmembers and F A one- or two-page letter is groups such as county bar sufficient to make a nomina- associations are all welcome tion. A form is available on to submit nominations. It www.okbar.org but is not doesn’t matter if the nominee required. is from one of the major metropolitan areas or from a small town – the Awards Committee F takes this factor into consideration. County bar associations are encouraged to nominate themselves and their bar “Remember, in order to win, a nomination members. must be submitted,” said Mr. Clark. “We’ve kept the nomination process simple. We ask Each nomination must be entered in only you to follow through and make sure the com- one category. mittee knows about the people and organiza-

1306 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 F Nominations may be e-mailed as a Word, F If using U.S Mail, send to : WordPerfect or PDF attachment. Confirma- tion of electronic receipt will be sent. Please Gary C. Clark, Chairperson do not send duplicate copy via fax or mail. OBA Awards Committee Send e-mail to [email protected]. P.O. Box 53036 Oklahoma City, OK 73152

2007 Awards

Trailblazer Award to an OBA member or members who by their significant, unique visionary efforts have had a profound impact upon our profession and /or community and in doing so have blazed a trail for others to follow

Outstanding County Bar Association Award for meritorious efforts and activities

Hicks Epton Law Day Award for individuals or organizations for noteworthy Law Day activities

Golden Gavel Award for OBA Committees and Sections performing with a high degree of excellence

Liberty Bell Award for non-lawyers or lay organizations for promoting or publicizing matters regarding the legal system

Outstanding Young Lawyer Award for a member of the OBA Young Lawyers Division for service to the profession

Earl Sneed Award for outstanding continuing legal education contributions

Award of Judicial Excellence for excellence of character, job performance or achievement while a judge and service to the bench, bar and community

Fern Holland Courageous Lawyer Award to an OBA member who has courageously performed in a manner befitting the highest ideals of our profession

Outstanding Service to the Public Award for significant community service by an OBA member

Award for Outstanding Pro Bono Service by an OBA member

Joe Stamper Distinguished Service Award to an OBA member for long-term service to the bar association or contributions to the legal profession Neil E. Bogan Professionalism Award to an OBA member practicing 10 years or more who for conduct, honesty, integrity and courtesy best represents the highest standards of the legal profession

John E. Shipp Award for Ethics to an OBA member who has truly exemplified the ethics of the legal profession either by 1) acting in accordance with the highest standards in the face of pressure to do otherwise or 2) by serving as a role model for ethics to the other members of the profession Alma Wilson Award for an OBA member who has made a significant contribution to improving the lives of Oklahoma children

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1307 OBA MEMBERSHIP ANNIVERSARIES

he Oklahoma Bar Association applauds these members who in 2007 reach significant milestone anniversaries.

T OUT OF STATE Russell Chapin Amelia, FL Robert Edward Fraley 60 Stafford, VA years Donald James Quigg 1947-2007 Falls Church, VA Shockley T. Shoemake CHOCTAW COUNTY Humble, TX 70 Vester V. Songer years Hugo 1937-2007 CLEVELAND COUNTY Frank Elkouri OKLAHOMA COUNTY Norman Jack Baird 50 Oklahoma City OKLAHOMA COUNTY years Elliott C. Fenton William Martin Allen 1957-2007 Oklahoma City Oklahoma City Edgar J. Harbison Thomas N. Keltner CANADIAN COUNTY Bethany Oklahoma City Henry C. Franke Abe A. Schreiber Charles Rudolph Nesbitt Piedmont Oklahoma City Oklahoma City CLEVELAND COUNTY Wayne B. Snow TULSA COUNTY Maurice Dean Brown Oklahoma City Harold C. Stuart Norman Tulsa STEPHENS COUNTY Robert Lee Pendarvis Joe K. Tripplehorn Paul D. Sullivan Norman Tulsa Duncan William Amis Pipkin Moore WASHINGTON COUNTY TULSA COUNTY Murlene Worth James G. Davidson Charles W. Selby Norman Bartlesville Tulsa David L. Dobie DELAWARE COUNTY OUT OF STATE Tulsa James R. Head Dorothy H. Hammond William P. Huckin Jr. Grove San Antonio, TX Tulsa GARFIELD COUNTY Emory Clark Smith Samuel E. Moore Washington, DC Curtis Lee Horrall Tulsa Enid J.D. Nance Jr. GRADY COUNTY Broken Arrow Clarence L. Maher Chickasha

1308 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 MAJOR COUNTY John Jerry Tanner Mary Ridgeway Bailey Tulsa Fairview Phillip E. Tibey Tulsa MURRAY COUNTY William Donald Toney W.J. Albright Tulsa Sulphur Bruce Miller Townsend MUSKOGEE COUNTY Tulsa Robert Bruce Green George Wesley Underwood Muskogee Tulsa NOBLE COUNTY Richard L. Wheatley Jr. Tulsa Robert Leroy Kasper Perry Judge Charles Scott Woodson Sand Springs OKLAHOMA COUNTY Willis Ray Yarbrough Judge James B. Blevins PITTSBURG COUNTY Tulsa Oklahoma City Clyde Stipe OUT OF STATE Gary Ward Davis McAlester Oklahoma City Clifton L. Adams Costa Mesa, CA James Franklin Davis ROGERS COUNTY Oklahoma City John R. Carle George Crocker Baldridge Joplin, MO Mathew M. Dowling Claremore Oklahoma City William Howard Boyles TULSA COUNTY Dallas, TX Henry Frederick Featherly Judge Thomas R. Brett Oklahoma City Robert K. Chiles Tulsa Sarasota, FL James Wylie George Darrel G. Camerer Oklahoma City James T. Comfort Tulsa Richardson, TX John Edwin Green Don L. Dees Oklahoma City Samuel H. Crossland Owasso Boise, ID Jack Hugh Herndon J. Jerry Dickman Midwest City Elmer M. Farinella Tulsa Albuquerque, NM Judge Paul B. Lindsey G. Douglas Fox Oklahoma City William S. Jack Fine Tulsa Pensacola, FL Jack T. Massey Joseph Frederick Glass Oklahoma City Thomas Dew Gresham Tulsa Colorado Springs, CO James N. Posey Thomas Lee Hulett Bethany William D. Harris Jr. Tulsa Richardson, TX Enrico J. Romano John Bryan Johnson Jr. Oklahoma City Don Ratcliffe Holland Tulsa Marble Falls, TX Bobby Jean Rudkin Paul Houston Johnson Edmond Jack Lee Orkin Tulsa University Park, FL Albert F. Schrempp Robert Wayne Langholz Oklahoma City Devier Pierson Tulsa Washington, DC Benjamin E. Smith Thomas G. Marsh Oklahoma City Carl F. Smith Tulsa Lakewood, CO Justice Hardy Summers John Joseph McQueen Oklahoma City Dewey W. Stark Jr. Tulsa Dallas, TX Raymond Edward Theimer Kent Clay Phipps Edmond Clifford Oscar Stone Jr. Tulsa Englewood, CO Jay Samuel Roberts Broken Arrow Steven E. Smith Tulsa

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1309 PUBLIC NOTICE FOR REAPPOINTMENT OF INCUMBENT BANKRUPTCY JUDGE The current 14-year term of office of Tom R. Cornish, United States Bankruptcy Judge for the District of Eastern District of Oklahoma at Okmulgee, Oklahoma, is due to expire on February 7, 2008. The Unit- ed States Court of Appeals for the Tenth Circuit is presently considering whether to reappoint Judge Cor- nish to a new 14-year term of office. Upon reappointment, Judge Cornish would continue to exercise the jurisdiction of a bankruptcy judge as specified in title 28, United States Code; title 11, United States Code; and the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § § 101-122, 98 Stat. 333-346. Members of the bar and the public are invited to submit comments for consideration by the court of appeals. All comments will be kept confidential and should be directed to: David Tighe, Circuit Executive, Byron White United States Courthouse, 1823 Stout Street, Denver, CO 80257. Comments must be received not later than Thursday, June 21, 2007.

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1310 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 BAR NEWS

The Judicial Nominating Commission Elections

The selection of quali- the selection of judges since for the Judicial Nominating fied persons for six of the members of the Commission and cast their Tappointment to the commission are lawyers vote. The framers of the con- judiciary is of the utmost elected by lawyers. The stitutional amendment importance to the adminis- lawyer members are elected entrusted to the lawyers the tration of justice in this state. from each of the six congres- responsibility of electing Since the adoption of Article sional districts as they exist- qualified people to serve on 7-B to the Oklahoma Consti- ed in 1967. (As you know, the commission. Hopefully, tution in 1967, there has the congressional districts the lawyers in the Third and been significant improve- were redrawn in 2002.) Elec- Fourth Congressional ment in the quality of the tions are held each odd Districts will fulfill their appointments to the bench. numbered year for members responsibility by voting in Originally, the Judicial Nom- from two districts. the election for members of inating Commission was 2007 ELECTIONS the Judicial Nominating involved in the nomination Commission. of justices of the Supreme This year there will be Court and judges of the elections for members in PROCEDURES OF THE Court of Criminal Appeals. Districts 3 and 4. District 3 is OKLAHOMA Since the adoption of the composed of counties in the BAR ASSOCIATION amendment, the Legislature southern and southeastern GOVERNING THE added the requirement that part of the state. District 4 is ELECTION OF LAWYER vacancies in all judgeships, composed of counties in the MEMBERS TO THE appellate and trial, be filled central and southwestern JUDICIAL NOMINATING by appointment of the gov- part of the state. The proce- COMMISSION ernor from nominees sub- dures for the election will be 1. Article 7-B, Section 3, of mitted by the Judicial Nomi- published in the bar journal. the Oklahoma Constitu- nating Commission. Lawyers desiring to be tion requires elections be The commission is com- candidates for the Judicial held in each odd num- posed of 13 members. There Nominating Commission bered year by active are six non-lawyers appoint- positions have until Friday, members of the Okla- ed by the governor, six May 18, 2007, at 5 p.m. to homa Bar Association to lawyers elected by members submit their Nominating elect two members of the of the bar, and one at large Petitions. Ballots will be Judicial Nominating member elected by the other mailed on June 1, 2007, and Commission for six-year 12 members. All serve six must be returned by June 15, terms from Congressional year terms, except the mem- 2007, at 5 p.m. Districts as such districts ber at large who serves a existed at the date of It is important to the two-year term. Members adoption of Article 7-B administration of justice that may not succeed themselves of the Oklahoma the OBA members in the on the commission. Constitution (1967). Third and Fourth Congres- The lawyers of this state sional Districts become 2. Ten (10) active members play a very important role in informed on the candidates of the association, within

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1311 the Congressional District and certified at 9 a.m. on COUNTIES IN EACH from which a member of the Monday following the DISTRICT ARE AS the commission is to be third Friday of June. FOLLOWS: elected, shall file with the 8. Unless one candidate Executive Director a receives at least 40 per- signed petition (which District No. 3 cent of the votes cast, may be in parts) nominat- Atoka there shall be a runoff ing a candidate for the election between the two Bryan commission; or, one or candidates receiving the Carter more county bar associa- highest number of votes. Choctaw tions within said Coal Congressional District 9. In case a runoff election is may file with the necessary in any Congres- Cotton Executive Director a sional District, runoff bal- Garvin nominating resolution lots shall be mailed, Haskell nominating such a under the supervision of Hughes candidate for the the Executive Director, or Jefferson his designee, to every commission. Johnston active member of the 3. Nominating petitions association therein on the Latimer must be received at the fourth Friday in June, and LeFlore Bar Center by 5 p.m. on all runoff ballots must be Love the third Friday in May. received at the Bar Center Marshall 4. All candidates shall be by 5 p.m. on the third Fri- McCurtain advised of their nomina- day in July. Murray tions, and unless they 10. Under the supervision of Pittsburg indicate they do not the Executive Director, Pontotoc desire to serve on the or his designee, the Pushmataha commission, their name runoff ballots shall be Seminole shall be placed on the opened, tabulated and ballot. certified at 9 a.m. on the Stephens 5. If no candidates are nomi- Monday following the nated for any Congres- third Friday in July. District No. 4 sional District, the Board 11. Those elected shall be Caddo of Governors shall select immediately notified, Cleveland at least two candidates to and their function certi- Comanche stand for election to such fied to the Secretary of Grady office. State by the President of the Oklahoma Bar Asso- Greer 6. Under the supervision of Harmon the Executive Director, or ciation, attested by the his designee, ballots shall Executive Director. Jackson be mailed to every active 12. The Executive Director, Kiowa member of the association or his designee, shall McClain in the respective Congres- take possession of and *Oklahoma sional District on the first destroy any ballots Pottawatomie Friday in June, and all printed and unused. Tillman ballots must be received Washita at the Bar Center by 13. The election procedures, 5 p.m. on the third Friday with the specific dates in June. included, shall be pub- *Oklahoma County only include lished in the Oklahoma selected cities: Choctaw, 7. Under the supervision of Bar Journal in the three Harrah, Luther, Midwest City, the Executive Director, or issues immediately pre- Newalla, Nicoma Park, Spencer his designee, the ballots ceding the date for filing shall be opened, tabulated nominating resolutions.

1312 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 CIMARRON HARPER WOODS ALFALFA GRANT KAY OSAGE NOWATA CRAIG OTTAWA TEXAS BEAVER WASHINGTON

ROGERS WOODWARD GARFIELD NOBLE MAYES MAJOR PAWNEE DELAWARE

6 TULSA ELLIS 2 PAYNE Note: The Congressional DEWEY WAGONER KINGFISHER 1 CHEROKEE CREEK 1 BLAINE LOGAN Districts are those ADAIR LINCOLN MUSKOGEE ROGER MILLS CUSTER OKLAHOMA OKMULGEE CANADIAN SEQUOYAH existing at the date of OKFUSKEE 5 McINTOSH WASHITA BECKHAM CLEVELAND the adoption of Article HASKELL CADDO GRADY HUGHES McCLAIN SEIMINOLE 7-B of the Oklahoma GREER KIOWA POTTAWATOMIE 4 PITTSBURG LATIMER LEFLORE

GARVIN PONTOTOC COMANCHE Constitution. HARMON JACKSON COAL MURRAY STEPHENS 3 PUSHMATAHA TILLMAN ATOKA COTTON JOHNSTON CARTER McCURTAIN JEFFERSON CHOCTAW MARSHALL LOVE BRYAN

NOTICE JUDICIAL NOMINATING COMMISSION ELECTIONS CONGRESSIONAL DISTRICTS 3 AND 4 Nominations for election as members of the Judicial Nominating Commission from Congressional Districts 3 and 4 (as they existed in 1967) will be accepted by the Executive Director until 5 p.m., Friday, May 18, 2007. Ballots will be mailed on June 1, 2007, and must be returned by 5 p.m. on June 15, 2007.

Assistant Federal Public Defender FEDERAL HABEAS CORPUS DEATH PENALTY ATTORNEY – ARDMORE DIVISION FEDERAL PUBLIC DEFENDER ORGANIZATION WESTERN DISTRICT OF Legal Aid Services of Oklahoma, Inc., is OKLAHOMA seeking an Attorney for its Ardmore L.O., serving Carter, Garvin, Jefferson, Johnston, The Federal Public Defender is accepting applications Love, Marshall, Murray, and Pontotoc for the position of Assistant Federal Public Defender in counties. The attorney will be responsible the Capital Habeas Unit. The Unit represents death sentenced prisoners in federal habeas corpus litigation for cases involving general law issues. proceedings throughout Oklahoma. This is a full time Applicants are required to have a J.D. from position located in Oklahoma City, Applicants must an accredited law school, and be admitted possess strong writing ability, a commitment to poverty to practice in Oklahoma. No legal experi- law or indigent criminal defense, and litigation experi- ence is required, however prior experience ence in at least one of the following areas: criminal law, with indigent individuals and/or seniors is death penalty litigation, habeas corpus litigation, or com- a plus. Salary is according to Legal Aid’s plex federal court civil litigation. Habeas experience salary administration plan. Generous bene- desirable but not required. High academic qualifications fits including: health, dental, life, pension, and exceptional writing ability will be considered in lieu etc. Applicants MUST complete Legal Aid's of experience. The position requires travel. Salary commensurate with experience and education, equiva- application, available for printing at this lent to salaries for Assistant U.S. Attorneys with similar www.legalaidok.org, forwarding the appli- experience. Qualified persons may apply by forwarding cation and a resume to: Bud Cowsert, a letter of interest, resume, and representative writing Director of Operations, 2901 Classen Blvd., sample to: James A. Drummond, Supervisor, CHU, Suite 110, Oklahoma City, OK 73106 or FAX Office of the Federal Public Defender, Western District of to (405) 484-6111. Applications will be Oklahoma, 215 Dean A. McGee, Suite 109, Oklahoma accepted until position is filled. Legal Aid City, Oklahoma 73102. Application packages must be is an Equal Opportunity/Affirmative received no later than May 18, 2007. The Federal Public Action Employer. Defender Organization for the Western District of Oklahoma is an Equal Opportunity Employer.

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1313 OBA SOLO AND SMALL FIRM CONFERENCE & YLD MIDYEAR MEETING JUNE 21-23, 2007 • TANGLEWOOD RESORT • LAKE TEXOMA

DAY 1 • Friday, June 22 8:25 a.m. Welcome THE OBA Stephen D. Beam OBA President

50 Tips in 50 Minutes SUMMER 8:30 a.m. Laura Calloway, Dan Pinnington and Jim Calloway GET-A-WAY 9:20 a.m. Break

9:30 a.m. - 11:00 a.m. The Nine Steps for Plenary Making Money and Staying Out of Session Trouble from Womb to Tomb Jay G. Foonberg

11:00 a.m. Break

11:10 a.m. Secrets to the Profitable Electronic Evidence & Nuts and Bolts to Noon Small Law Firm Electronic Discovery of Handling a DUI Laura Calloway Eric S. Eissenstat & Sonja Porter Brooks A. Richardson

Noon LUNCH BUFFET

Accounting for Lawyers: Oh How Do I Cloud Title? Trying the 1:00 p.m. - Understanding Financial Let Me Count the Ways Automobile Accident Case 1:50 p.m. Statements, Accounts and D. Faith Orlowski David Bernstein Other Mumbo Jumbo Craig Combs

1:50-2:00 p.m. Break

2:00 p.m. - Splitting Up, Then Moving Estate Planning Revisions Improving Client Service 3:00 p.m. On: Relocation Headaches in Light of Higher and Satisfaction Exemptions Donelle H. Ratheal Jim Calloway Charles E. King

1314 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 DAY 2 • Saturday, June 23 8:25 a.m. Welcome John Morris Williams OBA Executive Director

8:30 a.m. Risk Management — How to Avoid a Malpractice Claim (Ethics) Dan Pinnington & Phil Fraim

9:20 a.m. Break

9:30 a.m. OSCN, FastCase and Jury Selection: Pitfalls Accounting for Lawyers Other Legal and Pratfalls (part 2) Excel with Excel Research Tools Brian T. Hermanson & Dan Pinnington Jody Nathan Creekmore Wallace

10:20 a.m. Break

10:30 a.m. Why Law Firms Fail Vehicles of Parenting Tips for the 11:30 a.m. (And How to Avoid It) Charitable Giving Working Professional

Laura Calloway, Dan Pinnington Charles E. King Melanie Jester, Moderator and Jim Calloway Dr. Noel Jacobs

11:30 a.m. LUNCH BREAK — No Speaker — Hotel Check Out

12:30 p.m. - Who’s Your Daddy? Nuts Deposition Workshop Pet Project — The Only 1:20 p.m. and Bolts of the Uniform Property That Will Miss Jack Dawson Parentage Act You When You Are Gone Amy E. Wilson D. Faith Orlowski

1:30 p.m. - What’s Hot and 3:10 p.m. What’s Not in Running Your Law Practice Plan a get-a-way Laura Calloway Dan Pinnington Jody Nathan with the OBA! Jim Calloway

Spend some vacation time with your family at Tanglewood and still get all your CLE for the year!

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1315 The OBA Summer Get-A-Way OBA Solo & Small Firm Conference and YLD Midyear Meeting June 21-23, 2007 • Tanglewood Resort — Lake Texoma

REGISTRATION FORM: THIS FORM SHOULD BE TYPEWRITTEN OR PRINTED “LEGIBLY”

Registrant’s Name:______OBA#:______

Address:______City/State/Zip:______

Phone:______Fax:______E-Mail:______

List name and city as it should appear on badge if different from above: ______Registration Fees: Registration fee includes 12 hours CLE credit, including one hour ethics. Includes all meals: Thursday evening Poolside Buffet; Breakfast Buffet Friday & Saturday; Buffet lunch Friday & Saturday; Friday evening Ballroom Buffet.

Circle One Early-Bird Attorney Registration (on or before May 30, 2007) $175 Late Attorney Registration (May 31, 2007 or after) $225 Early-Bird Attorney & Spouse/Guest Registration (on or before May 30, 2007) $275 Late Attorney & Spouse/Guest Registration (May 31, 2007 or after) $325

Spouse/Guest Attendee Name: ______Early-Bird Family Registration (on or before May 30, 2007) $325 Late Family Registration (May 31, 2007 or after) $375 Spouse/Guest/Family Attendee Names: Please list ages of children. Spouse/Guest: ______Family: ______Age:______Family: ______Age:______Family: ______Age:______

Materials on CD-ROM only Total: $______

Thursday, June 21 • Golf With the BOG • 18 Hole Golf (______of entries @ $50 ea.) Total: $______

Friday, June 22 • Nine Hole Golf (______of entries @ $35 ea.) Total: $______

Total Enclosed: $______

Make check payable to the Oklahoma Bar Association. MAIL Meeting Registration Form to: CLE REGISTRAR, P.O. Box 960063, Oklahoma City, OK 73196-0063. FAX Meeting Registration Form to (405) 416-7092 For payment using ___VISA or ___ Master Card: CC: ______Expiration Date: ______Authorized Signature: ______

No discounts. Cancellations will be accepted at anytime on or before May 30, 2007 for a full refund; a $50 fee will be charged for cancellations made on or after May 31, 2007. Call 1 (800) 833-6569 for hotel reservations. Ask for the special OBA rate.

1316 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 OBA Solo & Small Firm Conference and YLD Midyear Meeting HOTEL DEADLINE: June 21-23, 2007 • Tanglewood Resort MAY 30, 2007 Lake Texoma • (800) 833-6569 HOTEL REGISTRATION FORM

Registrant’s Name:______Phone: ______

Address: ______City/State/Zip: ______

Spouse/Guest/Family Attendee Names: ______

______Name Age, if under 21 ______Name Age, if under 21 ______Name Age, if under 21 HOTEL INFORMATION

Arrival Day/Date ______Departure Day/Date: ______No. of People ______

Please check room preference: ______Single Condo $99 ______New Hotel Room $119 ______Tower Suite $129

______Smoking Room ______Non-Smoking Room Special Requests: ______CHILDREN ACTIVITIES (3 yrs. & up) SPOUSE/GUEST ACTIVITIES FRIDAY, JUNE 22, 2007 FRIDAY, JUNE 22, 2007 9:30 am - 11:30 am: Age Appropriate Crafts 9:30 am: Golf _____ No. $12 each child $______9/$35, 18/$50 (call for tee time) _____ No. Golfers 9/$35 $______11:30 am - 1 pm: Story Time (lunch included) _____ No. Golfers 18/$50 $______No. $12 each child $______RECREATIONAL ACTIVITIES 1 pm - 3 pm: Supervised Swimming _____ No. $12 each child $______4 Outdoor Swimming Pools & Jacuzzi 2 Lighted Tennis Courts 7:30 pm - 10:30 pm: Movies & Popcorn Playground & Volleyball Court _____ No. $12 each child $______Belgian Horseback Riding Croquet & Badminton SATURDAY, JUNE 23, 2007 Lake Texoma Striper Fishing 9:30 am - 11:30 am: Age appropriate games _____ No. $12 each child $______> > > > > > > > > > TRANQUILITY SPA 11:30 am - 1 pm: Story Time (lunch included) _____ No. $12 each child $______Featuring: Massage Therapy, European Facials, Body Wraps, Airbrush Tanning…plus much more! 1 pm - 3 pm: Supervised Swimming _____ No. $12 each child $______Call 1(800) 833-6569 Ext. 2664 TOTAL for Children $______before June 18 to make spa appointment. Private babysitting available for children 3 and under $10 per hour, arrange at front desk.

See www.tanglewoodresort.com for more hotel recreational activities and spa information. Cancellations of activities will be accepted 48 hours before arrival date.

Mail or fax entire page to: Tanglewood Resort Attn: Teresa, 290 Tanglewood Circle, Pottsboro, TX 75076-Fax (903) 786-2128. Make check payable to the Tanglewood Resort. If paying by credit card please complete: _____VISA _____ Master Card _____ Discover _____ AMX

Credit Card No ______Authorized Signature:______Expiration Date:______

CANCELLATION PENALTY IF ROOM NOT CANCELLED BY 6 P.M. JUNE 15, 2007

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1317 NOTICE

OBA Legal Ethics Advisory Panel Issues Opinion

Applications requesting its modification, correction, clarification or withdrawal must be made in accor- dance with Legal Ethics Advisory Panel rules governing appeals and received by the panel coordinator on or before Monday, June 11, 2007. Unless an application for the revision or withdrawal of an advisory opinion is timely received, the opinion shall become final. The rules governing appeals may be found on the OBA Web site at www.okbar.org/news/news_06/ EthicsPanel.htm. Send comments to Panel Coordinator Roger R. Scott, 525 South Main, Suite 1111, Tulsa, OK 74103. OBA Legal Ethics Advisory Opinion 2007-OK LEG ETH 01

INQUIRY: matter of litigation the lawyer is conducting for a client, except that the lawyer may: May an attorney representing a plaintiff in a lawsuit agree in advance to indemnify his client (1) acquire a lien granted by law or contract against attorney’s fees and costs that might be to secure the lawyer’s fee or expenses; and awarded to the defendant in the event that the defendant is the prevailing party? (2) contract with a client for a reasonable contingent fee in a civil case. OPINION (emphasis added). An attorney may not agree to indemnify his client against attorney’s fees and costs in the Rule 1.8(e) allows a lawyer to “advance court event that such fees and costs are awarded to the costs expenses of litigation” when the repayment opposing party and taxed as costs against the of such costs and expenses may be “contingent client. on the outcome of the matter” (emphasis added). “Advance” means “to supply or furnish in I. expectation of repayment”. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 17 (10th ed. 1999). To The controlling rule is Rule 1.8 of the Okla- agree to indemnify is not to “advance”. The homa Rules of Professional Conduct. Rule 1.8(e) lawyer who agrees to indemnify would have no provides: expectation of repayment under any circum- A lawyer shall not provide financial assis- stances. See Cynthia Bulan, A tance to a client in connection with Small Question in the Big Statute: Does Section 402 pending or contemplated litigation, except of Sarbanes-Oxley Prohibit Defense Advancements?, that a lawyer may advance court costs and 39 CREIGHTON L. REV. 357, 360 & n. 21 (2006) expenses of litigation, the repayment of (hereinafter, “Bulan”). According to Bulan, which may be contingent on the outcome of [t]he right to indemnifica- the matter. tion is not the same as the (emphasis added).1 right to advancement of This advisory opinion defense costs. The right to Rule 1.8(j) provides that: is subject to revision indemnification gives a A lawyer shall not acquire person the right to reim- a proprietary interest in the or withdrawal bursement of losses or cause of action or subject expenses; it is not a right

1318 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 for payment at the time the loss is incurred. Pennsylvania Bar Association Committee on Legal On the other hand, a right to advancement Ethics and Professional Responsibility, Informal requires payment of the defense costs as the Opinion Number 2000-14, 2000 WL 1616267 at costs are incurred. page *2 (2000). And see Bulan, 39 CREIGHTON L. REV. at 360-361 & n. 21 (quoted above).4 Bulan, 39 CREIGHTON L. REV. at 360-361 & n. 21, citing JOHN F. OLSON ET AL., DIRECTOR & OFFICER III. LIABILITY: INDEMNIFICATION AND INSURANCE § 5.03[2] (2001) (footnote omitted).2 The history of Rule 1.8(e) suggests that the class of costs and expenses that a lawyer may Rule 1.8(j) generally prohibits a lawyer’s permissibly advance is limited to traditional case acquisition of a proprietary interest in “the cause preparation expenses. Old Ethics Rule 42, 5 O.S. of action or subject matter of the litigation the 1961, Ch. 1, App. 3, provided: lawyer is conducting for a client.” The only exceptions to the general prohibition are attor- Expenses of litigation. A lawyer may not neys’ liens and contingent fees in civil cases. No properly agree with a client that the lawyer exception is made for an indemnification agree- shall pay or bear the expenses of litigation; ment. he may in good faith advance expenses as a matter of convenience, but subject to reim- The general rule against lawyer acquisition of bursement. a proprietary interest in the client’s cause of action, and/or the subject matter of the client’s Ethics Rule 42 was superceded by Disciplinary litigation, is based upon the old common law Rule 5-103(B) of the Oklahoma Code of Profes- rules against champerty and maintenance.3 See sional Responsibility, 5 O.S. 1981, Ch. 1, App. 3. Comments to Rule 1.8 of the Oklahoma Rules of DR 5-103(B) was in turn superceded by Rule Professional Conduct; CHARLES W. WOLFRAM, 1.8(e) of the Oklahoma Rules of Professional MODERN LEGAL ETHICS § 9.2.3 at 507 n. 76. The Conduct, effective from July 1, 1988. The lan- notion is that payment of expenses not expressly guage of Rule 1.8(e) is identical to the language authorized by the rule creates a conflict between of DR 5-103(B), except for a gender neutrality the client and the lawyer, in that the lawyer has a change from “his” to “a” client. The 1988 version financial interest in the case. The conflict could of Rule 1.8 stated: adversely affect the lawyer’s professional judg- ment in determining whether to accept a settle- While representing a client in connection ment or proceed to trial. Unconditionally guar- with contemplated or pending litigation, a anteeing the payment of attorney’s fees and costs lawyer shall not advance or guarantee finan- would create the same conflict. Cf. South Carolina cial assistance to a client, except that a Bar Ethics Committee, Ethics Advisory Opinion 89- lawyer may advance or guarantee the 12, 1989 WL 608452 at page *2 (1989). expenses of litigation, including court costs, expenses of investigation, expenses of med- II. ical examination, and costs of obtaining and The Alaska Bar Association has addressed a presenting evidence, provided the client related question—whether an attorney may con- remains ultimately liable for such expenses. tingently agree to pay attorney’s fees assessed Rule 1.8(e), Rules of Professional Conduct, 5 against a client if the client loses on appeal. O.S.Supp. 1988, Ch. 1, App. 3-A. Ethics Opinion No. 2004-02, 2004 WL 1853007 (April 27, 2004). That opinion dealt with a situa- Rule 1.8 (e) was amended in 1993. The 1993 tion where an attorney fee might be assessed language (set forth in Part I. above) tracks against a client in the event that an appeal in a amendments to ABA Model Rules of Profession- civil case were to be unsuccessful. The Alaska al Conduct, and is the current rule. As noted Bar Association, citing no authority other than above, the current rule allows repayment of Rule 1.8 of the Alaska Rules of Professional advances to be contingent on the outcome of a Responsibility, concluded that such an agree- case. The current Rule 1.8(e) also deletes the lim- ment was permissible. The Alaska ethics opin- iting language of prior ABA rules describing per- ion, however, failed to deal with the use of the missible “expenses” of litigation. This change term “advance” in Rule 1.8(e). In particular, there may seem to suggest that adverse party attor- was no discussion of how an agreement to ney’s fees might be considered to be “costs” of indemnify—to make a payment in the future— litigation. It seems more reasonable, however, to could be an “advance”. The distinction between read the new language in Rule 1.8(e) as a rever- “payments” and “advances” is discussed in sion to the simpler language of the original

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1319 Ethics Rule 42, without the contingent compo- IV. nent. An agreement to indemnify a client against Until recently, “court costs and expenses of lit- attorney’s fees and costs that might be awarded igation” were not considered to include attor- to a defendant as a prevailing party—an agree- ney’s fees. As a consequence, it is unlikely that ment to make a payment in the future, upon the the ABA Model Rule drafters, the Oklahoma Bar fulfillment of a condition—is not an “advance” Association committee, or the Oklahoma within the meaning of Rule 1.8(e). Such agree- Supreme Court believed that the phrase “court ments are prohibited by Rule 1.8(e) and Rule costs and expenses of litigation” included attor- 1.8(j).5 ney’s fees awarded at the end of litigation. Indeed, the Comment to the ABA Model Rule 1. On April 17, 2007, the Oklahoma Supreme Court adopted amend- ments to the Oklahoma Rules of Professional Conduct. In re: Application suggests that the ABA drafters eliminated the of the OBA to Amend the Rules of Professional Conduct, 2007 OK 22, ____ P.3d limiting language (relating to investigation, ____. Effective January 1, 2008, Rule 1.8(e) will read as follows: A lawyer shall not provide financial assistance to a client in medical exams, and costs of obtaining and pre- connection with pending or contemplated litigation, except that: senting evidence) in order to shorten the rule, (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the that they did not intend to change the accepted matter; and understanding of court costs. (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. The Comment in the ABA Model Code to the (emphasis added). most recent version Rule 1.8 (e)—the version that The change in the rule is shown in italics. This opinion does not depend on the current language of Rule 1.8(e) and will not be affected by will become effective in Oklahoma on January 1, the amendment. 2008—reads: 2. A similar distinction must be drawn between “advancement” and “payment” of costs and expenses. Under the version of Rule 1.8(e) that [10] Lawyers may not subsidize lawsuits or will become effective on January 1, 2008, it will be possible for a lawyer to pay court costs and expenses of indigent clients. Agreements to indem- administrative proceedings brought on nify indigent clients are not expressly authorized. behalf of their clients, including making or 3. See also 1 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 36 (2000) (“Forbidden Client-Lawyer Financial Arrangements”); State ex rel. guaranteeing loans to their clients for living Oklahoma Bar Ass’n v. Smolen, 2000 OK 95, 17 P.3d 456, 458, 459, 462; State expenses, because to do so would encourage ex rel. Oklahoma Bar Ass’n v. Carpenter, 1993 OK 86, 863 P.2d 1123, 1127, 1132, 1133; State ex. Rel. Oklahoma Bar Ass’n v. Smolen, 1992 OK 116, 837 clients to pursue lawsuits that might not oth- P.2d 894, 897, 900-901, 905-906 (citing the Restatement and tentative drafts erwise be brought and because such assis- thereof). 4. The Alaska Bar Association opinion seems to be incorrect for other, tance gives lawyers too great a financial fact-driven reasons. According to the opinion, the appeal had a substan- stake in the litigation. These dangers do not tial chance of success. Absent a successful appeal, the attorney would not warrant a prohibition on a lawyer lending a be paid. The plaintiff-client might be reluctant to proceed with the appeal for various reasons (e.g., a settlement offer contingent on foregoing the client court costs and litigation expenses, includ- appeal). ing the expenses of medical examination and the The attorney had an interest in proceeding with the appeal. The plaintiff-client, in theory, had an interest in foregoing the appeal. If the costs of obtaining and presenting evidence, attorney is allowed to indemnify the plaintiff-client, the plaintiff-client because these advances are virtually indistin- might be persuaded to reject a settlement offer that is in his or her inter- guishable from contingent fees and help ensure est. If an attorney is allowed to indemnify his or her client, the client may access to the courts. Similarly, an exception need to submit the question of the fairness of the indemnity proposal to allowing lawyers representing indigent an independent attorney for evaluation. A second order question imme- diately arises: Can the first lawyer pay for the independent lawyer’s eval- clients to pay court costs and litigation uation? expenses regardless of whether these funds 5. Two additional points should be noted. First, the current version of Rule 1.8(e) of the Oklahoma Rules of Professional Conduct (set forth in will be repaid is warranted. Part I., above) is not identical with the most recent revision of Rule 1.8(e) of the ABA Model Rules of Professional Conduct. The most recent revi- (emphasis added). sion of the Model Rule authorizes “a lawyer representing an indigent client” to “pay court costs and expenses of litigation on behalf of the The rationale for allowing a lawyer to advance client”. The Model Rule language emphasizes the distinction—made in costs of litigation is to ensure an indigent client the text—between “advances” and “payments”. Model Rule 1.8(e) has been adopted by some states (e.g., Alaska). The Supreme Court of Okla- access to justice: A case can neither start nor pro- homa recently adopted Model Rule 1.8(e); it will become effective on Jan- ceed without payment of costs, experts and dis- uary 1, 2008. See notes 1 and 2, supra. Second, the practice of advancing expenses is sometimes governed by covery. But the access-to-justice rationale does rules of substantive law and procedure. This is the case, for example, with not warrant or justify the provision of an indem- respect to class actions. See 5 ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 15:22 at 79-82 (4th ed. 2002) (if class representative has nity against an unconventional, non-traditional no financial responsibility for costs and expenses, class certification may litigation risk—a risk which will not even be be denied). See, e.g., Ferraro v. General Motors Corp., 105 F.R.D. 429, 433 & n. 3 (D. N.J. 1985) (“[A]greement whereby plaintiff’s attorneys agree to determined until after the case is over. A client advance or reimburse the costs of litigation is highly relevant to the issue can get to his or her day in court without being of adequate representation.”). In addition, advancements of costs and first insured against the possibility of adverse indemnity agreements may be prohibited by the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (2002). See Bulan, 39 CREIGHTON L. party attorney’s fees. REV. at 357-385.

1320 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 BAR NEWS

2008 OBA Board of Governors Vacancies Nominating Petition Deadline: 5 p.m. Friday, Sept. 7, 2007 OFFICERS Vacant positions will be filled at the OBA Annual Meeting Nov. 7 - 9. Terms of the present OBA officers President-Elect and governors listed will terminate Dec. 31, 2007. Current: J. William Conger, Oklahoma City Summary of Nominations Rules Mr. Conger automatically becomes OBA president Jan. 1, 2008 Not less than 60 days prior to the Annual Meeting, (One-year term: 2008) 25 or more voting members of the OBA within the Nominee: Jon K. Parsley, Guymon Supreme Court Judicial District from which the mem- Vice President ber of the Board of Governors is to be elected that year, Current: Jack S. Dawson, Oklahoma City shall file with the Executive Director, a signed petition (One-year term: 2008) (which may be in parts) nominating a candidate for Nominee: the office of member of the Board of Governors for and from such Judicial District, or one or more County Bar Associations within the Judicial District may file a BOARD OF GOVERNORS nominating resolution nominating such a candidate. Supreme Court Judicial District Two Not less than 60 days prior to the Annual Current: Michael W. Hogan, McAlester Meeting, 50 or more voting members of the OBA from Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, any or all Judicial Districts shall file with the Executive LeFlore, Marshall, McCurtain, McIntosh, Pittsburg, Director, a signed petition nominating a candidate to Pushmataha and Sequoyah counties the office of Member-At-Large on the Board of Gover- (Three-year term: 2008-2010) nors, or three or more County Bars may file Nominee: appropriate resolutions nominating a candidate for this Supreme Court Judicial District Eight office. Current: R. Victor Kennemer III, Wewoka Not less than 60 days before the opening of the Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Annual Meeting, 50 or more voting members of the Payne, Pontotoc, Pottawatomie and Association may file with the Executive Director a Seminole counties signed petition nominating a candidate for the office of (Three-year term: 2008-2010) President-Elect or Vice President or three or more Nominee: County Bar Associations may file appropriate resolu- Supreme Court Judicial District Nine tions nominating a candidate for the office. Current: Dietmar K. Caudle, Lawton In addition to the above methods, nominations to Caddo, Canadian, Comanche, Cotton, Greer, any of the above offices shall be received from the Harmon, Jackson, Kiowa and Tillman counties House of Delegates on a petition signed by not less (Three-year term: 2008-2010) Nominees: W. Mark Hixson, Yukon than 30 delegates certified to and in attendance at the O. Christopher Meyers II, Lawton session at which the election is held. Member-At-Large See Article II and Article III of OBA Bylaws for com- Current: Robert B. Sartin, Tulsa plete information regarding offices, positions, nomina- (Three-year term: 2008-2010) tions and election procedure. Bylaws are printed in the Nominee: OBA 2007 Reference Guide (OBJ Vol. 78, No. 4 January 27, 2007) and election information appears on pages 251-253.

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1321 making medicine HE OVEREIGNTY YMPOSIUM 2oth T S S Anniversary Skirvin Hotel • May 30 — May 31, 2007 Registration Form

Name ______Occupation ______Address ______City ______State ______Zip ______Billing Address ______(if different from above) City ______State ______Zip ______Nametag should read: ______E-mail Address and/or Website ______Telephone Numbers: Office (____) ______Other (____) ______Fax (____) ______Tribal Affiliation (if applicable): ______Bar Association # ______State ______

Registration Fees # of Amount Persons Enclosed $250.00 Registration fee - ($275.00 if postmarked after May 15) $150.00 Registration for Federal, State or Tribal judges (this fee is waived for Oklahoma judges) $150.00 Registration, May 31, 2007 only (no one day registration for May 30) $25.00 Dinner Reception, May 30, 2007 (if registered for the Symposium) $60.00 Dinner Reception, May 30, 2007 (if not registered for the Symposium) TOTAL AMOUNT Payment Method: Check / Money Order Credit Card (online only) Please mail this form to: Government Voucher Ms. Julie L. Rorie (Make checks payable to Sovereignty Symposium, Inc.) The Sovereignty Symposium, Inc. 1915 N. Stiles, Suite 305 ***No Refunds after Thursday, May 24, 2007*** Oklahoma City, OK 73105 To Register online please go to: www.oscn.net/sovereignty/ For Hotel Reservations please contact the Skirvin-Hilton Hotel at (405) 272-3040 by May 8th.

1322 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 FROM THE EXECUTIVE DIRECTOR

Leave Now If You Want a Place to Park By John Morris Williams

This will be my last article homa, a tornado could who office in the “old” part for a couple of months. The destroy an office in a matter of the building will be in OBA does not publish theme of seconds. Without an off- temporary quarters located issues during June and July. site backup, lawyers are in in the parking lot on the However, the OBA will be jeopardy of losing invaluable west side of the building. very busy during those computer data. The OBA Entry to the temporary months. The Solo and Small benefits from you entering offices will be restricted. All Firm Conference will be our into an agreement with persons needing to meet major member event. It is CoreVault and in the event with temporarily relocated always a great time. This of a disaster nothing will be staff will need to check in year there is an all-star cast of greater value to you. with the receptionist as of speakers and many usual. We will do everything family-friendly events. If BIG MOVE COMING possible to maintain our you have never been to the In July the OBA staff will high standards of member event before, this year’s move out of the east side of service. Meetings scheduled conference is one you will the building so that abate- in the Board of Governors want to attend. ment of asbestos can begin. room and Kerr Library will The response to our new Twenty-two of us will be be relocated to meeting free online legal research moving into temporary, space in the west side of the FastCase has been very posi- modular offices for at least building. Please check the tive. We have had several eight months to allow for the lobby monitor to confirm the training sessions that were abatement and remodeling location of your meeting. well attended. Kudos to Jim project to be completed. Videoconferencing will still Calloway and the Member Please pardon our mess as be available in room 131. We Services Committee for all we try to sort through and apologize for any inconven- their hard work in bringing move decades of documents, ience this may cause. this great service to us. Also, records and miscellaneous The remodel will result in OBA members should be items. Everything must be the building being in compli- aware that a vendor agree- moved out of the area where

ance with building fire codes ment with CoreVault has the work is being performed, and the Americans with Dis- been reached to provide and it will be sealed to avoid ability Act. Hopefully, our online backup service to contamination during the abatement process. All of us planning will bring you a OBA members at a dis- “ state-of-the-art Bar Center counted price. After that will accommodate our Hurricane Katrina, too space needs for the next 20 many of our colleagues in years. Reconfiguration of Louisiana and Mississippi During the remodeling, our space will allow for lost their data because they staff offices in the base- did not have offsite back- parking will be ment to be eliminated, and up. While we may not at a premium. the creation of extra office have hurricanes in Okla- “

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1323 space will allow for some growth. Oklahoma Bar Journal PARKING SPACES LIMITED Editorial Calendar During the remodeling, parking will be at a premi- um. Parking will be avail- 2007 2008 able in the parking lot north I August I January of the building. Entry to the Health Law Meet Your OBA building will be confined to Editor: Martha Rupp Carter Editor: Carol Manning [email protected] the south doors. The east I February doors will be sealed during Deadline: May 1, 2007 I Real Estate Law the asbestos abatement and September Editor: John Munkacsy Bar Convention [email protected] will continue to be blocked Editor: Carol Manning during the remodeling. Deadline: Oct. 1, 2007 I October I Members may want to plan March Education Law Pretrial Litigation on arriving for meetings or Editor: D. Renée Hildebrant Editor: Julia Rieman events a few minutes earlier [email protected] [email protected] than usual in anticipation of Deadline: May 1, 2007 Deadline: Jan. 1, 2008 I more distant parking. Please November I April be mindful that the area in Diversion Programs Law Day Editor: Judge Lori Walkley Editor: Carol Manning front of the south entrance is [email protected] I May a fire lane and is not appro- Deadline: Aug. 1, 2007 I Work/Life Balance priate for long-term parking. December Editor: Jim Stuart Ethics & Professional My next article will be [email protected] Responsibility Deadline: Jan. 1, 2008 after we have packed up and Editor: Melissa DeLacerda I August [email protected] moved to temporary offices Insurance Law Deadline: Aug. 1, 2007 in the middle of July. If I Editor: Judge Lori Walkley sound hot and tired in that [email protected] article, I will have earned it. Deadline: May 1, 2008 There are a million details to I September still attend to. The OBA Bar Convention wants you to have a facility Editor: Carol Manning I that is safe, inviting and use- October Guardianship ful for you. We ask for your Editor: Stephen Barnes patience during this time. [email protected] Deadline: May 1, 2008 In closing I want to I November encourage you to have the Technology/Practice best summer ever, starting Management with the Solo and Small If you would like Editor: Melissa DeLacerda Firm Conference. [email protected] to write an article Deadline: Aug. 1, 2008 on these topics, I December contact the editor. Ethics & Professional Responsibility Editor: Martha Rupp Carter [email protected] Deadline: Aug. 1, 2008 To contact Executive Director Williams, e-mail him at [email protected]

1324 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 LAW PRACTICE TIPS

Subscribe to CoreVault Online Backup at a Discount By Jim Calloway, Director, OBA Management Assistance Program

The Oklahoma Bar Associa- Our endorsement of Core- Under this arrangement, tion has endorsed Oklahoma- Vault represents a decision OBA members receive a signif- based CoreVault as the official that the risk of not frequently icant discount for the monthly online backup service of the backing up your precious cost of online backup. Some of OBA. This action may come as office data and regularly stor- you will believe that the serv- a surprise to some Oklahoma ing it off site far exceeds any ice is somewhat expensive. lawyers who could believe risk, or more accurately any Others, who have shopped that allowing your confidential perceived risk, of using an this market, may find that the client data to be transmitted online backup service. opposite is true. This is a form across the Internet and stored of insurance. Just like life CoreVault provides a com- insurance, you hope that you on another computer system plete, full service online back- outside of your control is a will not use it. But this is the up option. When you sign up way that you manage the busi- breach of client confidentiality. with CoreVault, their techni- We do not believe this to be ness risk of losing all of your cians contact you. There is a data. the case as long as the service setup fee. They install their has been properly vetted. software remotely over the You will probably only want There are always risks in phone and show you how it to back up your frequently life. Every time a law firm works. (This is only for high- changing data and new data, which include your forms, hires a new employee, they speed Internet connections. A your completed client, your accept the risk that that the dial-up connection is not ade- quate.) You identify all of the billing and accounting records, employee could turn out to be the data from your practice dishonest and embezzle files and folders that you wish to have backed up and they management software and money from the firm or breach will give you an estimate of other information that is fre- some aspect of the attorney- the monthly charges. You can quently changed. So you still client confidentiality. then lower or increase the may want to a monthly back- The OBA has invested time amount of data you wish to up to a portable hard drive or and resources reviewing the back up. make a “mirror image” of the online backup service provid- hard drive from time to time. ed by CoreVault. It has been Multiple layers of backup are vetted by the OBA Member still a good idea, and it is not Services Committee and the CoreVault cost effective to pay for daily office of the OBA General backup of the applications or Counsel. This is not the first www.corevault.net old archived data. time that we have looked at Once you purchase the serv- such a service. In fact, we have (405) 242-0101 ice from CoreVault, every reviewed options provided by night (or as frequently as you several online data backup (888) 265-5818 request) your data will be first service providers over the encrypted and then automati- years. cally transferred over the

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1325 Internet to the CoreVault Okla- almost full time the last three But the article also illustrates homa City location. Then a days. You had to request one that doing a complete backup duplicate copy of the data will extension of time, but you have it manually is not easy. Maybe be shipped to its secondary done now. Just one more quick you, too, need to decide data storage facility located review after lunch and you are whether an automated online more than 120 miles away going to drop it in the mail this service will free up you and from Oklahoma City. You will afternoon, a day before the dead- your staff for other important receive an e-mail confirmation line. tasks. when this is successfully com- pleted. CoreVault receives When you return from lunch Carrying a portable hard daily reports on which sched- and see the firemen and fire drive or backup tape home uled backups do not occur. If trucks outside of your office, you each night for off-site backup your data is not backed up for get a bad feeling. When you learn is not without its risks either. a few days, then they will that apparently it was your com- We see more and more news initiate contact with you to puter or monitor that caught on accounts of corporations who determine whether there is a fire. It burned for a while before have lost these critical data problem. the firemen hosed it down and backups and are then forced to then tossed it outside into a con- inform their clients that there Make no mistake. This is an venient barrel of rainwater. You is the possibility of identity exceptional backup service, are distracted about a number of theft. Certainly no law firm protecting your clients and things from smoke damage to your business continuity. insurance claims. But you soon would ever want to have to recall that brief and wonder when inform its clients that its confi- There are certainly other dential data had been lost. methods of backing up your the staff last backed up your com- data. As long as you are confi- puter data. Was it last night or In the typical law office, dent that you can restore need- last week? more and more mission-criti- ed data no matter what disas- It may be weekly backups cal data is now located on the ter befalls you, then you may are not enough to fully protect office computers and servers. not require an online backup your business. A decade or so ago, the files solution. But increasingly, it on a lawyer’s computer were appears that daily or every My experience tells me that largely word processing forms other day backup is the stan- unless you work in a firm and completed client work. dard. How long would it take large enough to have dedicat- There might have been some you to redo to all of yester- ed IT staff, it is very challeng- accounting records or other day’s work? And how much ing to do daily backups and material. But normally, most revenue would this cost the make sure that a copy of the all of the material could be firm when you make the judg- backup is stored off-site to reconstructed from the printed guard against complete ment that you could not bill a documents and reports, even if destruction of the office. In client twice for the same work that was expensive. just because you lost the data? fact, many firms with dedicat- Then extrapolate that cost for ed IT staff will find that this Now we move forward to a five days. solution makes sense and frees world of digital client files, their staff to do other impor- electronic evidence and elec- If you apply that standard, tant tasks. any online backup service is a tronic discovery. Reconstruct- bargain. A Backup Proposal for Those ing the data in a spreadsheet Who Know That They Aren’t from a printout would be When did you do your last Doing Backup Well was the title quite time consuming and data backup? Was it last night? of an article I wrote in this prone to errors. For many of Are you sure? Or does your space over a year ago. (Okla- you, the idea of receiving an e- firm back up its data every homa Bar Journal Nov. 19, 2005 mail each morning that your Friday? Let’s discuss the - Vol. 76; No.32.) I am still very backup was successfully com- ramification of your backup proud of this article. It is fair- pleted the night before may frequency. ly comprehensive and should become the most important You have a brief due tomorrow be reviewed before making the security blanket and risk man- on a very significant case involv- call to CoreVault so you can agement tool that you can ing a lot of money. It involved a consider all of the different imagine. lot of research and hard work – types of data that you have.

1326 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1327 ETHICS/ PROFESSIONAL RESPONSIBILITY

Law Day: An Epilogue By Dan Murdock, OBA General Counsel

Last week just before Law for her misunderstanding. I 36 USCA § 113 designates Day, I received an e-mail from was proud to be able to do so May 1 as Law Day, U.S.A. Its a friend of mine who asked and expound on the great declared purpose is to create a me about “Lawyer’s Day.” things that have resulted as a special day of celebration by She said she had received an result of the efforts of so many the people of the United States e-mail advising her of the in the legal profession. Yet I in appreciation of our liber- opportunity for free legal was also ashamed that I was ties. It’s a day we reaffirm our advice and was given a tele- amused. Why was it funny? loyalty to the United States phone number for those want- Why was I amused? and rededicate ourselves to ing that advice to call. Natu- the ideals of equality and jus- Maybe my amusement rally, I was amused. I knew tice under law in our relations comes from the perception of what she had received and with each other and with some members of the public was able to quickly explain other countries. And, just as that lawyers should not be about Law Day and the rea- importantly, it’s a day we cul- respected or valued for their sons for its creation. I tivate respect for the law that work. We need to change that explained that it was not is so vital for the democratic perception. For too long we “Lawyer’s Day” but a day set way of life. have not taken an assertive aside to celebrate the rule of position to correct that percep- I make special note of the law and how the legal process tion. In a recent OBA CLE pro- way in which the law is word- contributed to the many free- gram presented in Tulsa and ed. The terms “reaffirmation” doms that we all share today. Oklahoma City, Oklahoma and “rededication” are used. I have been told by those Supreme Court Justice Steven This tells us that nothing has whose opinions I value and W. Taylor said it well. He said been abandoned but reminds trust that Law Day was the that lawyers had done great us of what is needed from us. idea in 1954 of Hicks Epton, a things for our country. He What is needed from us, as lawyer in Wewoka. This is in specifically discussed the lawyers, is a greater pride in contrast to the ABA’s position areas of social justice, civil who we are, a stronger recog- that the 1957 ABA President rights and human rights and nition of the past efforts of so Charles S. Rhyne, a Washing- said that each time advance- many lawyers who have come

ton, D.C., attorney, conceived ments were made lawyers before us, and a more the idea for Law Day. In any were there. Justice Taylor was assertive position about who event, President Dwight D. very emphatic when he said we are and what we do.

Eisenhower formally estab- that lawyers deserve and I understand the thought of lished Law Day in 1958 to rec- should demand the respect of Justice Taylor that we demand ognize and strengthen our the public for their efforts to respect. Law Day gives us the time-honored beliefs of liberty, protect and preserve the rights perfect opportunity to think “ justice and equality. I have that are or should be guaran- more about how we can earn known all about Law Day and teed to all. I admit that I have it. the reasons for its creation for been too meek in promoting a long time and quickly, but our profession. So have most politely, corrected my friend of you. That should change. I admit that I have been too meek in promoting our profession. “1328 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 BOARD OF GOVERNORS ACTIONS

April Meeting Summary

The Oklahoma Bar Association Board of Governors met at the Oklahoma Bar Center on Friday, April 20, 2007.

REPORT OF THE attended the Canadian Coun- attended the Thursday PRESIDENT ty Bar Association meeting. evening board social event and several other meetings President Beam reported he REPORT OF THE with OBA leadership and met with Chief Justice Win- PRESIDENT-ELECT others on various subjects. chester on various matters, taped a TV segment for the President-Elect Conger BOARD MEMBER Ask A Lawyer show, reported he attended meet- REPORTS appeared at the Supreme ings of the Access to Justice Committee, Bar Center Facili- Governor Caudle reported Court conference at which he attended the March Board Rules of Professional Con- ties Committee and Work/ Life Balance Committee. of Governors meeting and duct amendments were con- dinner with the Supreme sidered, fielded calls and e- REPORT OF THE PAST Court, Comanche County Bar mails from various bar mem- PRESIDENT Association meeting, Mentor- bers, worked on the YLD Past President Grimm ing Task Force meeting and regional meeting program, General Counsel Murdock’s worked on tort reform issues reported he attended meet- ings of the Tulsa Title and CLE ethics presentation and and met with Executive NBA Hornets game. He also Director Williams numerous Probate Lawyers Association, OBA Bar Facilities Commit- participated in the coordina- times. He attended OBA Day tion of the Law Day lunch- tee and OBA Leadership at the Capitol events and the eon, golf tournament and Conference Task Force. Supreme Court dinner. He barbeque. attended meetings of the REPORT OF THE Governor Christensen Mentoring Task Force, Lead- EXECUTIVE DIRECTOR ership Conference Task Force, reported she attended the Awards Committee, State Executive Director March Board of Governors Legal Referral Service Task Williams reported he attend- social with the Supreme Force, Custer County Bar ed meetings of the Leader- Court, March Board of Gov- Association and the first ship Conference Task Force, ernors meeting, Mentoring organizational meeting of the MCLE Commission, State Task Force meeting, OBA Bar Oklahoma Hispanic Bar Legal Referral Service Task Facilities Committee meeting, Network. Force, Law School Commit- Women in Law Committee tee, Bench and Bar Commit- meeting, OBA Bench and Bar REPORT OF THE VICE tee, Bar Center Facilities Committee meeting, Model PRESIDENT Committee and Idea Raiser- Code of Judicial Conduct Vice President Dawson 100 Great Ideas. He conduct- Subcommittee meeting, Hor- reported he has been work- ed OBA director evaluations nets CLE seminar and Okla- ing with the Bar Center Facil- and had separate meetings homa County Board of Direc- ities Committee, Mentoring with Dick Beale on storage tors meeting. Task Force in addition to space, the architect on modu- Governor Dirickson gathering material and lar space and with the modu- reported she attended the preparing an agenda for the lar space company in Tulsa, March board dinner with the April 23 Lawyer Advertising where he viewed several Supreme Court, March board Task Force meeting. He also modular unit samples. He meeting, Custer County Bar

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1329 Association monthly meeting March Board of Governors REPORT OF THE and Beckham County Bar meeting, Mentoring Task SUPREME COURT Association monthly Force meeting and LIAISON meeting. Communications Task Force meeting. Justice Taylor reported the Governor Farris reported Supreme Court approved the he attended the March Board Governor Reheard report- amendments to the Rules of of Governors dinner with the ed she attended the Thurs- Professional Conduct that Supreme Court, March Board day night dinner with the will become effective Jan. 1, of Governors meeting, Tulsa Supreme Court justices, 2008. He said Ethics Counsel County Bar Foundation Board of Governors meeting Hendryx did a fine job in meeting and Tulsa County and McIntosh County Bar making the presentation. Bar Association meeting. He Association’s Law Day plan- Justice Taylor said the order spoke to two classes at the ning meeting. and the new rules have been TU law school about probate Governor Souter reported posted to www.oscn.net. administration and chaired he attended the Board of President Beam reported the the Tulsa Municipal Judicial Governors dinner with the OBA will produce the new Nominating Committee Supreme Court, March board rules as a separate printed meeting. meeting, OBA Awards Com- publication for all members Governor Hermanson mittee meeting and Creek in addition to having them reported during the past two County Bar Association available on its Web site. months he attended OBA meeting. LAW STUDENT DIVISION Day at the Capitol activities, Governor Stockwell LIAISON State Legal Referral Service reported she attended the LSD Chair Robben report- Task Force meeting, OBA March board meeting, board Criminal Law Section semi- ed she attended the March dinner with the Supreme Board of Governors social nar, Thursday night Board of Court, Cleveland County Bar with the Supreme Court and Governors function in Brick- Association luncheon, OBA the March Board of Gover- town, Board of Governors Awards Committee meeting nors meeting. She noted that meeting, OBA Member Ser- and Cleveland County CLE vices Committee meeting, featuring MAP Director this was her last meeting, OSU Hall of Fame dinner in Calloway. and she said she will forever Stillwater honoring Justice be grateful for the experience, Steven Taylor, swearing-in REPORT OF THE YOUNG which has meant so much to ceremony of Judge Lee Stout LAWYERS DIVISION her. in Newkirk and OETA Festi- Governor Camp reported REPORT OF THE val with other OBA members the YLD sent Roy Tucker to GENERAL COUNSEL in Oklahoma City. In Tulsa he ABA Law Day in Washing- attended the OBA Law Prac- ton, D.C. where he met with General Counsel Murdock tice Management Section many of Oklahoma’s repre- shared a status report of the reception and brainstorming sentatives. He also reported Professional Responsibility session. past YLD Chair Keri Commission and OBA disci- plinary matters. He reported Governor Hogan reported Williams has done a great deal of work on planning the he conducted an Office of the he attended the March board General Counsel staff meet- meeting and lunch at the Fac- program for the Affiliate Out- reach Program meeting that ing and spoke to President- ulty House, Pittsburg County Elect Conger’s Introduction Bar Association meeting and will take place this weekend. to the Practice of Law class at assisted with information for He attended the Board of OCU with Ethics Counsel the Pittsburg County “Ask A Governors dinner with the Hendryx. He attended a Pro- Lawyer” program. Supreme Court, March Board of Governors meeting, OBA fessional Responsibility Com- Governor Kennemer Leadership Conference Task mission meeting, OBA direc- reported he attended two Force meeting and planning tors meeting, monthly OBA State Legal Referral Service teleconference with the YLD staff celebration, OU recep- Task Force meetings, March New Attorney Committee. tion for the law student pro Board of Governors social He chaired the March YLD bono program and Clients’ with the Supreme Court, Board of Directors meeting. Security Fund meeting.

1330 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 DISCUSSION OF SENATE PRESENTATION board voted to grant the BILL 507 appeal and to withdraw the President Beam presented opinion. The board voted to Board members heard brief LSD Chair Robben with an express appreciation to the comments from attorneys OBA certificate of apprecia- panel for its time and effort. Brad West and Larry Tawwa- tion and thanked her for her It was noted Justice Taylor ter, who addressed issues service on the Board of Gov- did not participate in the dis- contained within Senate Bill ernors. She thanked board cussion and Governor Dirick- 507 that has passed both the members for the wonderful son was not present during House and Senate in the experience and their support. consideration of this agenda Oklahoma Legislature. Gov- LAW DAY COMMITTEE item. ernors were given the oppor- REPORT tunity to speak. The board PROPOSED FAMILY LAW voted to send a letter encour- Committee Chair Giovanni SECTION LOGOS aging Gov. Brad Henry to Perry reported that new The board voted to require veto the proposed legislation. members had joined the com- all OBA sections wanting to The board authorized the mittee this year to provide use logos to utilize the exist- Public Information Depart- much needed assistance. She ing OBA logo with the addi- ment to send out a news reviewed the content of the tion of the section name. The release about the letter to four Ask A Lawyer TV show board tabled action on the Gov. Henry that the Board of segments that will air on development of a policy Governors voted to send. The OETA May 1 and other Law regarding logo utilization board authorized an editorial Day activities. She said vol- and approval. from President Beam to be unteers had been recruited to distributed to daily newspa- translate the TV show into AWARDS COMMITTEE pers across the state. It was Spanish for the second year RECOMMENDATIONS noted Justice Taylor was not and asked the board to con- The board approved present during the discussion sider increasing the commit- Awards Committee recom- of this agenda item. tee budget next year to allow mendations for 2007 awards professional translators to be BAR CENTER that include the criteria for used. RENOVATIONS the new Trailblazer Award. COMMITTEE LIAISON Executive Director LEGISLATIVE UPDATE REPORT Williams reported the week Executive Director of July 16 is projected for east Governor Hermanson Williams reviewed the status wing employees to move to reported on behalf of the of bills on the OBA legislative the temporary units. A floor Member Services Committee agenda. He noted the civil plan draft of the temporary that the contract with Core- procedure bill has passed. space will be available soon. Vault has been signed, and Work has started on the new an official announcement to OKLAHOMA GET-A-WAY location for the telephone the membership is coming as system. President-Elect Con- soon as a co-branded Web MAP Director Calloway ger reported the Bar Center site is developed. The board reviewed events planned for Facilities Committee will ask approved the vendor the Solo and Small Firm Con- the architects of the new endorsement at its March ference, YLD Midyear Meet- front entrance to do a plan to meeting. ing and Estate Planning, Pro- soften the rough finish, bate and Trust Section which was intended to be a APPEAL TO LEGAL Midyear Meeting June 21-23, contrast to the while marble ETHICS OPINION 2007, at Tanglewood Resort exterior. The committee still 2006 OK LEG ETH 01 on Lake Texoma. wants to add quotes to the Legal Ethics Advisory NEXT MEETING entrance. Panel member Jim Drum- mond reviewed the process The board will meet Friday, used by the panel in issuing May 18, 2007, at 9:30 a.m. at an advisory opinion. Attor- the Holiday Inn Express in neys Allan Brook III, Michael Jenks. Joseph and David Petty addressed the board. The

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1331 BAR FOUNDATION NEWS

OBF Funds Senior Law Programs

The oldest of the baby Senior Law Project and two of elders, caregivers and boomers turned 60 last year. new programs the Senior people of all ages preparing Perhaps the nation’s most Law Resource Center and for the next phases of their celebrated generation, born the Oklahoma CAAVA pilot lives. The organization’s between 1946 and 1964; program. purpose is to empower boomers vowed to never Oklahomans to age with Legal Aid Services of Okla- grow old but to age well. independence, dignity and homa’s (LASO) Senior Law security by providing high- Life expectancy at the turn Projects are an important quality, affordable legal of the century was approxi- source of free legal advice, information, resources and mately 46 years; today it is counseling and community services. The SLRC began approximately 77 years. The education throughout the operations this year by offer- number of citizens over age state for citizens age 60 or ing free community work- 85 will double by 2030, and older. Assistance is available shops and launching an by 2050, 40 percent of the in many different types of online resource center. The population will be older cases, such as wills, garnish- organization is working than 50.1 For the first time in ments, debt collection or toward becoming a central history, seniors will outnum- credit problems, consumer source for comprehensive ber children and youth. It is issues, Medicaid, Medicare anticipated these increases and other medical will create a huge burden on access issues, public society when a majority of and subsidized hous- have had such a great experience the population consists of ing issues, food working as a law-student intern at those that traditionally stamps, Social Securi- the Senior Law Resource Center ty and Supplemental I require care and are heavily (SLRC). A majority of my research has dependent on others. Security Income, vet- been focused on sections of the SLRC eran’s benefits, During the last decade in Web site. In particular, I have been guardianship and Oklahoma, the over age 65 focusing on health issues within elder power of attorney population has been increas- law such as hospice care and DNRs. services. Each of Legal ing at a rate faster than the Through this research I have gained Aid’s 11 service offices population as a whole. Fac- practical experience in statutory inter- throughout the state tors contributing to this pretation and have learned to reword has such a project. For growth include the immigra- it in such a way that the everyday non- more information tion of retirees to the state, professional would be able to under- about LASO’s Senior aging of our population and stand the law and answer their partic- Law Projects, call your increased movement for ular legal questions. Overall, the expe- nearest Legal Aid closer proximity to families rience has been incredibly helpful to office, or visit Legal and services.2 my own education, and I look forward Aid’s Web site, to the continued practical experience The OBF provided www.legalaidok.org. that will be gained through the intern- $298,000 during 2006 to The new Senior ship while helping aging Oklahoma three organizations that Law Resource Center citizens. provide services to was established in Oklahoma seniors — Legal Stephanie Powers 2006 to meet the Aid Services of Oklahoma’s University of Oklahoma Law Student growing legal needs

1332 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 guidance and assistance of the court in the protection Seniors have the potential to with various issues that arise of vulnerable citizens. be as great an influence on as citizens age and is utiliz- OCAAVA volunteers are to the future of America as this ing pro bono volunteers and provide reliable, unbiased country’s past was on them. law-student interns to devel- information to the judges in By 2020, the senior popula- op and present educational court cases. Work and plans tion will number approxi- programs. Student interns are underway to establish mately 115 million nation- currently conduct elder law the pilot program in Okla- wide. These statistics indi- research, write educational homa County with eventual cate that senior law pro- content for the online expansion into one of the grams are becoming more resource center and develop more rural outlying counties. important to all Oklahoma written materials for com- Please contact Georgette citizens. munity presentations. Please Clark direct at OCAAVA HOW CAN YOU HELP? contact Catheryn Koss direct (405) 521-2281 for more at SLRC (405) 528-0858 or information on the program. Attorneys and others inter- [email protected] ested parties can help to pro- The 2000 U.S. Census for more information. vide services across Okla- reports 429,566 Oklahomans homa through membership The second new program were 65 years of age and in the OBF Fellows program is the Oklahoma Court older. By 2015, the over age and other general contribu- Appointed Advocates for 65 population is predicted to tions. Join with Oklahoma Vulnerable Adults increase by 37 percent and attorneys and help us to (OCAAVA) pilot program will likely double by 2030.3 make a real improvement in that will train advocates to The senior population shows the lives of others. Please work for the best interests of no signs of slowing down or contact OBF at (405) 416- vulnerable adults within decreasing in size. It is near- 7070 for more information Oklahoma’s court system. ly impossible to clearly on the Fellows program. Citizens will serve as trained define or label such a OCAAVA volunteers, at the diverse group of people, but 1. National Center for Health Statistics’ discretion of the court, to diversity is one of their Web site, www.cdc.gov/nchs. 2. The Aging Boom, Report of the function as the eyes and ears greatest assets and strengths. Shades of Gray Task Force (May 2001). 3. 2000 U.S. Census, The Census Bureau.

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1333 1334 The OklahomaBar Journal

2007 Oklahoma Bar Foundation Board of Trustees V ol. 78—No.15 5/12/2007 Seated left to right Director of Administration and IOLTA Programs Nancy Norsworthy; Secretary/Treasurer Phil Frazier, Tulsa; President Mark W. Curnutte, Vinita; Vice President Richard A. Riggs, Oklahoma City; Immediate Past President Hal Wm. Ellis, Stillwater; Fellows Chairperson Roger R. Scott, Tulsa; Grants and Awards Chairperson John D. Munkacsy Jr., Lawton; Trustees Jack L. Brown, Tulsa; Linda S. Thomas, Bartlesville; Personnel Chairperson David Pomeroy, Oklahoma City; Hon. Millie E. Otey, Tulsa; A. Edwin McComas, Elk City; Hon. Valerie Couch, Oklahoma City; Stephen D. Beam, Weatherford; Bylaws and Governance Chairperson Kenneth A. Hicks, Wagoner; J. William Conger, Oklahoma City and Susan B. Shields, Oklahoma City. Others Trustees not pictured here are President-Elect Renée DeMoss, Tulsa; Young Lawyers Division Representative Brett D. Cable, McAlester; Cathy M. Christensen, Oklahoma City; Shon T. Erwin, Lawton; William E. Farrior, Tulsa; Steven R. Mackey, Tulsa; Brooke Smith Murphy, Oklahoma City; Laurie K. Pollard, Idabel and John Morris Williams, Oklahoma City. ACCESS TO JUSTICE

Long-term Care Insurance Whether, When and What Kind By Catheryn Koss

The elderly is one of the worth Financial, the average policy holder pays the pre- fastest growing and most annual cost of a private mium. Unless they opt for a vulnerable segments of our room in an Oklahoma nurs- non-forfeiture benefit (dis- society. Providing much- ing home is $48,136.1 The cussed below), clients should needed legal information rising costs of long-term care be confident in their ability and assistance to seniors and combined with recent to pay the premiums (taking their caregivers is an excel- changes in institutional into consideration future lent way for practicing and Medicaid eligibility require- rate increases) for the rest of retired attorneys to make a ments2 are heightening the their lives or at least until difference. public’s interest in long-term they need long-term care.5 care insurance. Older people When Should Your Client Legal Assistance for are frequent targets of long- Buy Long-Term Insurance? Oklahoma Seniors term care insurance adver- Those interested in helping tisements and sales pitches. If your client has decided seniors with Medicare and This article briefly explores to purchase long-term care other insurance issues can how to help your clients insurance, the next question volunteer with the Okla- determine if and what kind is at what age should the homa Insurance Depart- of long-term care insurance client buy the policy. Argu- ment’s Senior Health Insur- is right for them. ments for early purchase include lower premiums, the ance Counseling Program. Is Long-Term Care Insur- risk of becoming ineligible Call (800) 763-2828 to find ance Right for Your Client? out when the next three-day due to future deteriorating training is scheduled. Attor- Before clients purchase health and the possibility of neys can also do pro bono long-term care insurance, needing long-term care work for older clients they should assess their sooner than expected. On through the Senior Law Pro- financial situation and pre- the other hand, younger con- ject at Legal Aid Services of paredness for other more sumers will likely pay pre- Oklahoma (Oklahoma City – immediate financial risks. miums for several decades Sharon Ammon (405) 557- Do they have adequate before ever needing long- retirement savings and term care. Unanticipated 0020; Tulsa – Jeanie Wheeler, 3 (918) 584-3338). If you are health insurance? If appro- financial difficulties may interested in giving free priate, do they have suffi- force some to allow policies community presentations on cient life and disability to lapse. insurance? Insurance compa- elder law issues, contact Because most policies are nies are required to provide Catheryn Koss at the Senior designed with the current a potential buyer with a Law Resource Center (405) healthcare system in mind, “personal worksheet” 528-0858. medical advances, changes designed to assess the suit- in how care is delivered and Long-Term Care Insurance ability of long-term care policy reforms may diminish Overview insurance.4 the value of the coverage.6 According to a recent Most basic policies offer Clients should balance these report published by Gen- coverage only as long as the risks, taking into considera-

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1335 tion their age, health and versus home care) will carry pany before purchasing a financial situations, to decide different maximum benefit policy. The Financial Divi- when to purchase. Younger amounts. sion of the Oklahoma Insur- purchasers should strongly ance Department can deter- • Benefit Triggers — Eligi- consider purchasing infla- mine if a company is bility for covered services is tion protection (discussed licensed in Oklahoma and in based on the policyholder’s below). good standing. The depart- inability to carry out a speci- ment’s Senior Health Insur- What Kind of Policy Should fied number of “activities of ance Counseling Program at Your Client Purchase? daily living” (ADLs). ADLs (800) 763-2828 is an excellent may include bathing, dress- Begin by helping your source of information. ing, toileting, continence, clients identify their reasons SHICP-trained volunteers transferring (moving in and for buying long-term care provide free insurance coun- out of a chair or bed) and insurance. If the client wants seling for seniors. eating. Because bathing is to preserve assets for the one of the first ADLs to be About the Senior Law next generation, the benefit lost, finding a policy that Resource Center amount should be high includes it as a benefit trig- enough to cover most or all The Senior Law Resource ger is preferable. Alterna- of the anticipated costs of Center is a nonprofit organi- tively, eligibility may be care. If the client simply zation providing legal infor- based on a loss of cognitive wants to remain independ- mation and services to elders ability. ent and at home as long as and caregivers in Oklahoma. possible, more limited cover- • Elimination Period — Attorneys give free commu- age may allow the client to Most policies have a waiting nity presentations on a prevent impoverishment period after the policy hold- variety of elder law issues during shorter, temporary er begins to receive long- and one-on-one legal servic- periods of care.7 term care. es are offered on a sliding- scale basis. For more infor- Once the client’s goals are • Inflation Protection — mation, call (405) 528-0858 identified, assess how well Inflation protection helps to or go to www.Oklahoma particular policies would ensure that the coverage will SeniorLaw.org. meet those objectives and still be adequate many years weigh the costs of increased in the future. Some policies 1. Jim Killackey & Jeff Raymond, Health: coverage. Variables in poli- allow holders to increase the Long-term Care Planning Urged, Nursing 8 Home Costs Average $48,136 a Year, The cies include: benefit amount periodically Oklahoman, April 4, 2007, at 11. for an additional cost. 2. Deficit Reduction Act of 2005, Pub. L. • Covered Services and No. 109-171, 120 Stat. 4 (Feb. 8, 2006). Exclusions — Some policies • Waiver of Premium — 3. Mark Merlis, Private Long-term Care Insurance: Who Should Buy It and What specify particular services This allows the policy holder Should They Buy 7( The Henry J. Kaiser covered or limit the kinds of to stop paying premiums at Family Foundation) (March 2003). 4. 36 O.S. §4429(C)(2). facilities where care can be a point after long-term care 5. Oklahoma Insurance Dep’t., 2003-05 received. begins or after the company Shopper’s Guide Long-Term Care Insurance begins paying benefits. Senior Health Insurance Counseling Program • How Benefits are Paid — “SHICP” 7. 6. Merlis at 9-12. Benefits are paid either • Nonforfeiture Guarantee 7. Id at 21-9. based on actual expenses — This option protects poli- 8. 2003-05 Shopper’s Guide Long-term (expense incurred) or at a set cyholders unable to continue Care Insurance at 9-15. dollar amount (indemnity paying premiums. If the pol- Ms. Koss is executive director method). icy is cancelled, the company of the Senior Law Resource will return a portion of the • Amount of Coverage — Center. money paid. Policies have lifetime benefit maximums as well as daily, Conclusion weekly, or monthly limits. Consumers should Often different types of serv- research the insurance com- ices (e.g., nursing home care

1336 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 YOUNG LAWYERS DIVISION

YLD HOSTS SUCCESSFUL iate Assistance Director Ryan The YLD extends special REGIONAL CONFERENCE Reed from Bowling Green, thanks to OBA/YLD Imme- Ky.; ABA/YLD South-Cen- diate Past Chair Keri Young lawyers from neigh- tral District Representative Williams for planning an boring states gathered in Amy Freedman from informative conference, and Oklahoma City for the Texarkana, Ark.; New Mexi- for providing Oklahoma’s American Bar Association/ co YLD Chair Erika Ander- young lawyers with a chance Young Lawyers Division son; Tulsa County Bar Asso- to learn from those with South Central Regional Con- ciation YLD Chair Adam unsurpassed bar leadership ference April 20-21. The con- Marshall; and former OBA experience. ference was part of the Law Student Division Chair ABA’s Affiliate Outreach LeAnne McGill. Program (AOP), which affords young lawyers from surrounding states the opportunity to converge in small settings where they can exchange ideas and resources regarding the development of public and member service programs. Things kicked off on Fri- day afternoon with guest speaker Hindi Greenberg, president of Lawyers in Transition and author of The Lawyer’s Career Change Hand- book: More Than 300 Things You Can Do With a Law Degree. Ms. Greenberg — christened “the Ann Landers for lawyers” by the Los Angeles Times — has been widely acknowledged by YLD Chair Chris Camp, YLD Immediate Past Chair Keri Williams major legal publications, and ABA/YLD Chair Jay Ray enjoy the evening at Remington Park. news periodicals and televi- sion news networks for her expertise on attorney career The conference picked up YLD DIRECTOR VISITS satisfaction. again on Saturday morning NATION’S CAPITAL with informative presenta- That evening, YLD mem- YLD Director Roy Tucker tions by ABA leaders on top- bers and conference atten- represented Oklahoma at ics ranging from the devel- dees joined the OBA Board ABA Day in Washington, opment of division member- of Governors at Remington D.C. April 18-19. The event ship to budget planning and Park for a private suite din- focused on meeting our implementation. Meetings ner and reception. Also nation’s elected officials on concluded with presenta- among those the YLD was the legislative initiatives and tions by YLD affiliates of pleased to welcome were agendas supported by the their various public and ABA/YLD Chair Jay Ray ABA. During the two-day member service projects. from McKinney, Texas; Affil-

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1337 meeting, Mr. Tucker, along 4) reauthorization of the ters that directly impact with Oklahoma delegates Indian Health Care Act; 5) them, their clients, the legal Judge Jodi Levine, Jack and reauthorization of the profession and the adminis- Brown, William Hoch and Juvenile Justice Act. tration of justice.” Dwight Smith, met with “We appreciate Roy’s will- After the first full day of Oklahoma’s senators and ingness to tackle a tough lobbying, participants were representatives to ask for two days in D.C.,” said YLD invited to a reception at the support on key legislation. Chair Christopher Camp. “It Library of Congress with Among the legislative is important that Okla- ABA President Karen items discussed were: 1) an homa’s young lawyers let Mathis. increase of $80 million for their voices be heard on mat- Legal Services Corporation, the national corporation THANK YOU which provides substantial funding for state legal aid The YLD Wills for Heroes Project would like to thank the services, including Okla- Tulsa offices of Gable & Gotwals and Lynco Inc. for their gen- homa; 2) an immediate and erous donation of laptop computers and portable printers. substantial increase in feder- Beginning next month, the YLD will be using this equipment al judicial pay; 3) a loan for- for the off-site preparation of wills and estate planning docu- giveness program for attor- ments for police, firemen and other first responders. neys in public service;

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1338 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 C alendar

May

18 OBA Board of Governors 25 OBA Access to Justice Meeting; 9:30 a.m.; Jenks; Committee Meeting; 3 p.m.; Contact: John Morris Oklahoma Bar Center, Okla- Williams (405) 416-7000 homa City and OSU Tulsa; Contact: Kade McClure OBA Mentoring Task Force (580) 248-4675 Meeting; 1:30 p.m.; Okla- homa Bar Center, Oklahoma 28 Memorial Day City; Contact: Jon Parsley (State Holiday) (580) 338-8764 30-31 Sovereignty Symposium XX; OBA Lawyers Helping Skirvin Hilton Hotel, One Park Lawyers Committee Avenue, Oklahoma City Meeting; 1:30 p.m.; Okla- homa Bar Center, Oklahoma City; Contact: Thomas Riesen (405) 843-8444 June

16 OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Center, Okla- homa City and OSU Tulsa; Contact: Matthew Free (918) 582-1234 OBA Solo & Small Firm Conference Planning Committee Meeting; 3 p.m.; Oklahoma Bar Center, Okla- homa City; Contact: Roger Reneau (405) 732-6000 OBA Law Day Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Giovanni Perry (405) 601-2222 17 OBA Work/Life Balance 1 Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma Committee Meeting; Bar Center, Oklahoma City; Contact: Judge Barbara Swinton 12 p.m.; Oklahoma Bar (405) 713-7109 Center, Oklahoma City; Contact: Melanie Jester 5 Oklahoma Hispanic Bar Network Meeting; 3 p.m.; Oklahoma Bar (405) 609-5280 Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Saul Olivarez (405) 227-9700 6 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Steven Dobbs (405) 235-7600

cont’d next page

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1339 jun. cont’d

8 OBA Family Law Section July Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Donelle Ratheal (405) 842-6342 12 OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Bill Conger (405) 208-5845 13 OBA Diversity Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; 4 Independence Day 18 OBA Professionalism Contact: Linda Samuel-Jaha (State Holiday) Committee Meeting; (405) 290-7030 4 p.m.; Oklahoma Bar 10 OBA Bar Center Facilities Center, Oklahoma City and 14 OBA Bench and Bar Committee Committee Meeting; Tulsa County Bar Center, Meeting; 12 p.m.; Oklahoma Bar 9 a.m.; Oklahoma Bar Tulsa; Contact: Steven Center, Oklahoma City and Tulsa Center, Oklahoma City and Dobbs (405) 235-7600 County Bar Center, Tulsa; Tulsa County Bar Center, Contact: Jack Brown Tulsa; Contact: Bill Conger 19 OBA Work/Life Balance (918) 581-8211 (405) 208-5845 Committee Meeting; 12 p.m.; Oklahoma Bar 18 OBA Alternative Dispute 11 State Legal Referral Center, Oklahoma City; Resolution Section Meeting; Service Task Force Contact: Melanie Jester 4 p.m.; Oklahoma Bar Center, Meeting; 1 p.m.; (405) 609-5280 Oklahoma City and Tulsa County Oklahoma Bar Center, Bar Center, Tulsa; Contact: Larry Oklahoma City and Tulsa 20 OBA Board of Governors Yadon (918) 595-6607 or Barry County Bar Center, Tulsa; Meeting; Oklahoma Bar Davis (405) 607-8757 Contact: Dietmar Caudle Center, Oklahoma City; (580) 248-0202 Contact: John Morris 20 OBA Clients’ Security Fund Williams (405) 416-7000 Committee Meeting; 2 p.m.; 12 OBA Bench and Bar Oklahoma Bar Center, Oklahoma Committee Meeting; OBA Mentoring Task City and Tulsa County Bar 12 p.m.; Oklahoma Bar Force Meeting; 1:30 p.m.; Center, Tulsa; Contact: Micheal Center, Oklahoma City and Oklahoma Bar Center, Salem (405) 366-1234 Tulsa County Bar Center, Oklahoma City; Contact: Tulsa; Contact: Jack Jon Parsley (580) 338- 21-23 OBA Solo & Small Firm Brown (918) 581-8211 8764 Conference and YLD Midyear Meeting; Tanglewood Resort 13 OBA Family Law Section 21 OBA Title Examination on Lake Texoma; Contact: Meeting; 3 p.m.; Okla- Standards Committee (405) 416-7050 homa Bar Center, Okla- Meeting; Oklahoma Bar homa City and OSU Tulsa; Center, Oklahoma City; 22 OBA Board of Governors Contact: Donelle Ratheal Contact: Kraettli Epperson Meeting; Tanglewood Resort on (405) 842-6342 (405) 840-2470 Lake Texoma; Contact: John Morris Williams (405) 416-7000 16 OBA Alternative Dispute 24-27 OBA Bar Examinations; Resolution Section 8 a.m.; Oklahoma Bar 29 OBF Trustees Meeting; 1 p.m.; Meeting; 4 p.m.; Okla- Center, Oklahoma City; Oklahoma Bar Center, Oklahoma homa Bar Center, Okla- Contact: Board of Bar City; Contact: Nancy Norsworthy homa City and Tulsa Examiners (405) 416-7075 (405) 416-7070 County Bar Center, Tulsa; Contact: Larry Yadon (918) 595-6607 or Barry Davis (405) 607-8757

This master calendar of events has been prepared by the Office of the Chief Justice in cooperation with the Oklahoma Bar Association to advise the judiciary and the bar of events of special importance. The calendar is readily accessible at www.oscn.net or www.okbar.org.

1340 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 FOR YOUR INFORMATION

Volunteers Create Successful Law Day Hundreds of lawyers across Oklahoma joined together May 1 to answer phone calls for free legal advice to celebrate Law Day. This year, lawyers in 48 counties answered more than 2,500 calls for advice. This was the 29th year the OBA has coordinated this community service. Okla- homa City attorney Gio- vanni Perry serves as OBA Oklahoma County Ask A Lawyer co-chairs Mike Krasnow and Mike Blaschke Law Day Committee chair. (standing back, left) greet and assist volunteers while taking calls for advice.

Bar Auxiliary Supports Mock Trial Winners Oklahoma County Bar Auxiliary Presi- dent Jane Kenney (right) presents a $500 check to the Oklahoma’s High School Mock Trial champion team from Ada High School. The funds were pre- sented to the team to assist with travel expenses to the National High School Mock Trial Finals in Dallas. The auxiliary has been instrumental in making financial donations to the program since its inception 27 years ago. In addition to their work on behalf of the Mock Trial program, both the Oklahoma County and Tulsa County bar auxiliaries were busy this year providing delicious meals served to Ask A Lawyer volunteers during Law Day.

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1341 Pace XVIII Deadline Extended in Midwest City. This year’s institute, “Okla- homa Centennial: A State of Many Nations,” The OBA Law-related Education Department will expose educators to various aspects of has extended until June 1 the deadline for the Oklahoma judicial system, Native Ameri- applications to participate in the 2007 PACE can courts, citizenship education and public Summer Institute. policy. PACE (Programs Advancing Citizenship Edu- For more information, contact LRE assistant cation) is aimed at teachers and will take Jeanne Minson at (405) 416-7023, or visit place July 8-12 at the Reed Conference Center www.okbar.org to download an application.

OBA Member OBA Member Holiday Hours Resignation Reinstatement The Oklahoma Bar Center will The following OBA The following OBA be closed Monday, May 28 for member has resigned member suspended for Memorial Day and Wednes- as a member of the nonpayment of dues and day, July 4 for Independence association and notice MCLE noncompliance has Day. is hereby given of such complied with the resignation: requirements for rein- statement, and notice is Gretchen Pauline hereby given of such Hoover reinstatement: OBA No. 14596 3810 Indian Lake Rd. James Scott Dilbeck Rhinelander, WI 54501 OBA No. 20192 2713 Wyandotte Way Norman, OK 73071

Calling All Writers So You Want to be the We need you on the “Back Page.” Share your Next John Grisham? story or poetry that conveys humor, intrigue or inspiration to others. Submissions should be Now’s your chance! Enter the Sixth short, a maximum of two double-spaced pages or Annual Legal Fiction Writing Contest one and 1/4 single-spaced pages, and preferably for Lawyers sponsored by SEAK Inc. related to the practice of law. E-mail Carol Man- The purpose of the competition is to ning with submissions or questions at encourage lawyers to become more [email protected]. interested in and adept at writing legal fiction. A short story or novel excerpt in the legal fiction genre, typed and not exceeding 2,500 words, Bar Journals Take Summer Vacation should be submitted by Sept. 7, 2007. Judging will be based on originality, Look for the next bar news edition of the Okla- quality of writing and the potential of homa Bar Journal (with color cover) to be pub- the author. Prizes include $1,000 cash lished Aug. 4. You’ll still be receiving court mate- for first place! Entries should be sent rial in June and July. Deadline for submissions for to: SEAK Inc.- Legal Fiction Competi- the next news issue is July 16. tion; Attention: Steven Babitsky, President; P.O. Box 729; Falmouth, MA 02541.

1342 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 BENCH & BAR BRIEFS

attorney Robert Faulk and he 2007-2008 Officers for Durant attorney Matt Tthe Oklahoma County Mickle. Immigration attor- Bar Auxiliary were ney Lawrence Davis will announced. They will be in serve as interim chairman of place May 10, and they are: the program President Jo Jones; First Vice he Carter County Bar Presidents Sheila Manners andall Grimmett has TAssociation recently and Cathy Kirk; Second Vice been promoted to senior raised scholarship money for R Presidents Marilyn Summers vice president/membership three local graduating high and Anne Holbrook; Secre- group of the American Soci- school students. Among the tary Lynn Pickens; Corre- ety of Composers, Authors recipients was the daughter sponding Secretary Judy and Publishers (ASCAP). In of an Ardmore attorney, Riggs; and Treasurer Ellen this new position, Mr. Grim- Mitch Sperry, who died last Morgan. year. mett will play a major role in the membership group’s he OCU School of Law ulsa attorney W. Thomas business affairs and mem- Tpresented Phillips, TCoffman completed 21 bership operations in the McFall, McCaffrey, McVay & years of continuous service U.S. and abroad. He began Murrah with the Law Firm in various capacities as a fel- his music career in manage- Mark of Distinction at the low of the American College ment and business affairs Legal Affair banquet held of Trusts and Estate Counsel. and he joined the ASCAP 13 April 21 at the Skirvin Hotel. He was elected a fellow in years ago. OCU law professor Alvin 1979 and began his service to Harrell received the Justice arry D. Ottaway of the college as Oklahoma Marian P. Opala Award for Foliart, Huff, Ottaway & State chair from 1986-1992, L Lifetime Achievement. Bottom participated in the and continued on as national Proceeds from the event Masters in Trial for SEABO- regent from 1992-1998. Mr. benefited scholarships at TA, a regional affiliate of the Coffman was a National Oklahoma City University American Board of Trial Foundation Board member School of Law. from 1995-2001 and National Advocates, in Atlanta in Membership Selection Com- April. Mr. Ottaway also on Templin of Dallas mittee member from 2001- served on the faculty of the Dhas been named a fel- 2007. ABA Tort Trial and Insur- low of the American College ance Practice National Trial of Trial Lawyers. He accept- icoma Park attorney Academy in Reno, Nev., also ed the honor at the recent NRandy L. Goodman in April. 2007 spring meeting of the will serve as Rotary District college in La Quinta, Calif. he Pontotoc County Bar 5750 team leader for a group Founded in 1950, the college Association, in conjunc- study exchange program to T is composed of U.S. and tion with East Central Uni- Rio de Janeiro, Brazil. The Canadian trial bars. Lawyers versity’s Legal Professions district includes Oklahoma must have a minimum of 15 Association and the Student City and the northwest years trial experience before Activities Center, recently quadrant of Oklahoma. The being considered for fellow- hosted a Law Day Blood program is a vocational and ship. cultural program designed Drive on the ECU campus to to promote peace through a benefit the Oklahoma Blood ov. Brad Henry has better understanding of Institute. Fifty blood dona- Gappointed Lt. Gov. Jari world cultures. Members of tions were collected during Askins as Oklahoma’s small the team also include Enid the drive. business advocate, a role

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1343 tasked with providing assis- he law firm of Hall, he Edmond law firm tance to small business own- TEstill, Hardwick, Gable, TLester, Loving & Davies ers throughout the state. The Golden & Nelson PC PC announced that George governor issued the execu- announces the addition of S. Freedman is now a part- tive order May 7 in conjunc- Julianna P. Deligans as an ner with the in the firm. Mr. tion with “Small Business associate in the Oklahoma Freedman, who was former- Day” at the state Capitol. City office. She received her ly of counsel to the firm, Gov. Henry said, “Jari Ask- undergraduate degree with received his J.D. from the ins is a proven leader with a honors from OSU and her University of Missouri in strong and unwavering com- J.D. from the OU College of 1993. His practice focuses on mitment to Oklahoma’s Law. Ms. Deligans will add family law, employment law, small businesses. This is a the practice of intellectual business consultation and perfect fit, and one that I am property law to the Okla- corporate litigation. confident will help our econ- homa City office. Her other omy continue to grow.” specialty areas include trade- he Edmond firm of marks, copyrights, unfair TRubenstein, Bryan, competition and licensing. McCormick & Pitts PLLC announces the addition of andy Evers has joined Daniel G. Howard and RLegal Aid Services of Jonathan D. Reiff as counsel Oklahoma Inc. as a staff to the firm, and that Carol attorney in the Court Wood Mitchell has recently Defender Office in Okla- been associated with the ames Sears Bryant was homa City. Before joining firm. Jrecently named a partner Legal Aid, Mr. Evers was a in the St. Louis-based law sole practitioner in Norman, Mr. Howard received his firm of Stolar Partnership. specializing in general crimi- B.A. and M.B.A. from OSU. He will lead the firm’s edu- nal practice, trial, appellate He earned his J. D. from cational practice. Mr. Bryant and post conviction. He OCU in 2003 where he grad- will receive his doctorate in spent several years as appel- uated magna cum laude. His higher education manage- late defense counsel, Capital practice concentrates in ment from the University of Post-Conviction Division, of intellectual property, corpo- Pennsylvania in May. For the the Oklahoma Indigent rate formation and general last 10 years, Mr. Bryant was Defense System. Mr. Evers business planning. of counsel to Dow, Lohnes in received his undergraduate Mr. Reiff received his J.D. Washington D.C., and the degree from OU and his from Wake Forest University last two years he also served J.D. from OCU. Mr. Evers in 1967 and his L.L.M. in tax- as assistant to the dean of may be contacted at ation from SMU in 1981. He external affairs at the Amos (405) 297-3190. has practiced law in Okla- Tucker School of Business at homa City since. He is a Dartmouth College. unton & Williams LLP announces that Chet A. 1960 graduate of Harvard H College and is the author of ableGotwals announces Fenimore has joined the firm a number of tax and other that Leah Phelps Car- as managing partner of its G legal articles. His practice penter has joined the firm as Austin, Texas office. Mr. Fen- concentrates in estate plan- an associate in their Tulsa imore was formerly a share- ning for complex estates, office. She received her holder with the law firm of and personal and business undergraduate degree from Jenkens & Gilchrist. His tax and organizational OU in 1994 and her J.D. from practice focuses on corporate planning. the TU College of Law in and regulatory representa- 2004. Prior to joining the tion of companies operating Ms. Mitchell received her firm, she most recently prac- throughout the United J.D. from SMU. She prac- ticed law in Dallas. Her legal States, with an emphasis on ticed commercial, transac- practice area is commercial banks and financial institu- tional and bankruptcy law in litigation. tions. He received his J.D. Tulsa for 21 years before from OU in 1993. moving to Edmond in 2004.

1344 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 She has served for three ndrews Davis dren (including Cerebral years as a Chapter 7 panel Aannounces that June E. Palsy and Erbs Palsy), trustee for the Northern M. Phillips has joined the healthcare negligence, arbi- and Eastern Districts of firm as an associate. Ms. tration and mediation, con- Oklahoma. Phillips received her under- sumer litigation, employ- graduate degree from Indi- ment law, labor law and ewton, O’Connor, Turn- ana University, her master’s administrative law. The firm Ner & Ketchum PC degree in health administra- can be reached by telephone Thomas M. announces tion from OU and her law at (405) 562-7771, by fax at Klenda has become of coun- degree from the TU College (405) 285-9350, or by e-mail sel with the firm. Mr. Klenda of Law. Andrews Davis is at www.woskaswim.com. received his undergraduate located at 100 N. Broadway, ignato and Cooper PC degree from OSU in 1977 Suite 3300, Oklahoma City, announces the name of and his J.D. from TU in 1980. 73102. Ms. Phillips can be P the firm has changed to Pig- His practice focuses on fran- reached at (405) 272-9241. chise law, real estate, com- nato, Cooper, Kolker & mercial transactions, busi- odd Taylor announced Roberson PC. ness organizations, and Tthe relocation of his estate and asset protection office to 5761 N.W. 132nd planning. He may be Street, Oklahoma City, reached at the firm’s offices 73142. He has 21 years expe- located at 15 W. 6th St., Suite rience in business and com- 2700, Tulsa, 74119; by phone mercial litigation, trust and at (918) 587-0101; or by e- estate litigation, banking and mail at tklenda healthcare. Mr. Taylor may @newtonoconnor.com. be reached by phone at (405) 470-6649 or by e-mail at egal Aid Services of todd.taylor hris A. Paul of Joyce & LOklahoma opened its @taylorlawOKC.com. CPaul PLLC of Tulsa co- McAlester Satellite Office the presented “A Broader View first week in May to serve onner & Winters LLP of SCADA” at the Energy the civil legal needs of low- Cannounces Brad Telecommunications and income and elderly persons Williams has joined the Electrical Association’s 2007 in Pittsburg County. The firm’s Oklahoma City office Conference in Houston. new office is open part time as an associate. He will The presentation reviewed and is located at 1335 East work in both the firm’s the emerging regulatory and Carl Albert Parkway in commercial transactions and legal issues that surround McAlester. For additional litigation practice areas. Mr. SCADA, and how these information on the Williams graduated from issues interface with the McAlester Office call Mary the OU College of Law in technical demands and Mosshammer at (580) 326- 2003 after earning his capabilities of systems. 9655. undergraduate degree in energy management from red H. Miller of Okla- lassWilkin PC of Tulsa OU. He is also admitted to Fhoma City planned and Clint Gannounced that practice in Texas. moderated a seminar titled M. Patterson joined the firm “Primer on Modern Payment as an associate attorney. Mr. aniel Woska, Douglas Systems,” hosted April 19 by Patterson graduated from DA. Swim and Dan M. the OBA in Oklahoma City. the University of Chicago Peters announced the open- Other presenters included with a B.A. in political sci- ing of their new offices at James A. McCaffrey and ence. He received his J.D. 3037 N.W. 63rd, Suite 251, Eric L. Johnson. The event from the TU College School Oklahoma City, 73116. The provided practicing attor- of Law in 2004. He formerly firm will handle a variety of neys from across the state of served with the Tulsa Coun- matters including business Oklahoma with a discussion ty District Attorney’s Office. litigation, securities matters, of payment catastrophic injuries to chil- system issues that affect

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1345 Oklahoma business ulsa attorneys Brad A. transactions. How to place an announce- TJackson and Theresa ment: If you are an OBA Noble Hill instructed in the ohn D. Rothman, legal member and you’ve moved, recent program “The Funda- director of the Oklahoma become a partner, hired an J mentals of Construction associate, taken on a partner, Mediation/Arbitration Contracts: Understanding received a promotion or an Service, recently spoke at the the Issues in Oklahoma.” award or given a talk or annual meeting of the Asso- The program provided infor- speech with statewide or ciation of Attorney Media- national stature, we’d like to mation on the basic contract tors in Santa Fe, N.M., on the hear from you. Information principles, key contract pro- topic of “Recommended Set- selected for publication is visions, change orders and tlement Figures, Mediator’s printed at no cost, subject to contract modifications. It editing and printed as space Number and Other Post- was designed to provide a permits. Submit news items Mediation Mechanisms to clear understanding of the (e-mail strongly preferred) Finalize Settlements.” in writing to: implied terms and obliga- . Douglas Stump spoke tions in construction con- Lori Rasmussen Tat the recent AILA Texas tracts. It also focused on con- Public Information Dept. Chapter Conference in Las tract administration and dis- Oklahoma Bar Association Vegas. His presentation pute resolution. P.O. Box 53036 focused on mandamus litiga- Oklahoma City, OK 73152 tion against the Citizenship (405) 416-7018 Fax: (405) 416-7001 or and Immigration Services. E-mail: [email protected] Articles for the Aug. 4 issue must be received by July 16. www.okbar.org Your source for OBA news.

At Home At Work And on the Go

1346 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 IN MEMORIAM

arold G. Clark Jr. of military police during the sion. He went on to work HEdmond died March 19. Korean War. After his dis- with Ernest and Young LLP He was born Feb. 23, 1928, in charge, he graduated from and was a principal with Dallas. Clark attended High- the OU College of Law in Grant Thornton LLP. He was land Park High School. He 1956. Mr. Ladner worked for a member of the board of received his undergraduate his father’s law firm, Ladner trustees for Youth Services for degree and his J.D. from and Livingston, before he Oklahoma County. He was SMU. He practiced law in the took a job with Sun Oil Co. also an Eagle Scout and avid Dallas District Attorney’s He was later named general Cub Scout leader. Office as well as with Delta counsel of Sun Oil Pipeline. ohn Ernest Wagner Airlines and later with LTV He was a Gilcrease Museum of Aerospace. He was as mem- docent and a counselor for JOklahoma City died May 3. ber of the U.S. Coast Guard First Methodist Church’s He was born on Dec. 19, and attained the rank of Healing Ministries. 1926, in Hockerville. After lieutenant commander. high school, Mr. Wagner irginia Dorothy joined the Army and trained etired Judge Jesse Robin- VLobaugh of Tulsa died as a Japanese linguist at Rson Field of Shawnee April 9. She was born Oct. 28, Louisiana State University, died March 31. He was born 1914, in Littleton, West Va. Yale University and the Uni- Jan. 25, 1911, in Hobart. Mr. She graduated from Tulsa versity of Minnesota. He Field graduated from Hobart Central High School. In 1942, served in Tokyo in 1946 as an High School in 1928. He Ms. Lobaugh was one of the interpreter-stenographer. He attended the Oklahoma Mili- first female graduates from was also commissioned as an tary Academy for two years the TU College of Law. She officer in the Counter Intelli- and received his L.L.B. degree was an attorney for Service gence Corps. He received his in law. He practiced privately Pipeline and Amoco. Ms. law degree from OU with as an attorney for eight years Lobaugh was past president honors in 1954. He estab- and served as the Oklahoma of the Pilot Club of Tulsa and lished his own law practice in state representative for Kiowa past chairman of Eastern Star. 1961. He served in the Okla- County. Mr. Field was an FBI She was a member of the homa Legislature and as a agent from 1942-1973, and Tulsa County Bar Association, GOP county chairman. He then as special court judge in Oklahoma Association of served as president of the Pottawatomie County for 23 Woman Lawyers and the Oklahoma Interscholastic years. He was a member of Quota Club. Press Association and the Kiwanis-Hobart, Shawnee Greater Oklahoma City obert Ben Struble (Diamond X) and the Society of Nor- Council of Churches. Mr. of Former FBI Agents. Rman died April 19. He Wagner was a member of was born March 19, 1954, in Regional Aids Interfaith ohn A. Ladner of Tulsa Stillwater. He received his Movement and established Jdied April 10. He was born undergraduate degree from the Agency for Christian Min- July 22, 1928. He earned an OSU and his law degree from istry. Memorial contributions undergraduate degree in the OCU School of Law. Mr. may be made to St. Paul’s 1950. He served in the Air Struble served as the senior Episcopal Cathedral of Force as a judge advocate deputy general counsel for Oklahoma City. general officer in charge of the Oklahoma Tax Commis-

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1347 CLASSIFIED ADS

SERVICES SERVICES

MEDICARE – MEDICAID – HEALTH LAW Mark S. EXPERT WITNESSES • ECONOMICS • VOCATIONAL • Kennedy, P.C. Attorneys and Counselors at Law – A MEDICAL Economic Damages, Lost Profits Analysis, Busi- Health Law Boutique concentrating practice in ness/Pension Valuations, Employment Discrimination, Healthcare regulatory and payment matters and other Divorce, Wrongful Discharge, Vocational Assessment, Life Business Services to the healthcare provider and prac- Care Plans, Medical Records Review, Business/Legal Ethics. titioner. Formerly Counsel to U.S. Department of National Experience. Call Patrick Fitzgerald. (405) 447-6093. Health and Human Services’ Centers for Medicare & Medicaid Services and Office of the Inspector AFARM Consulting, L.C. General. Voice (972) 479-8755; Fax (972) 479-8756; Raleigh A. Jobes, Ph.D. [email protected] 2715 West Yost Rd Stillwater, OK 74075-0869 Phone (405) 372-4485 Fax (405) 377-4485 HANDWRITING IDENTIFICATION E-Mail [email protected] POLYGRAPH EXAMINATION Agricultural Economic and Business Consultant Will provide independent and objective analysis of agricultural Board Certified Court Qualified related problems. Resume and Fee schedule sent upon request. Diplomate — ABFE Former OSBI Agent Life Fellow — ACFE FBI National Academy INTERESTED IN PURCHASING Producing & Arthur D. Linville (405) 636-1522 Non-Producing Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, OF COUNSEL LEGAL RESOURCES — SINCE 1992 — P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) Exclusive research & writing. Highest quality: trial 755-7200; Fax (405) 755-5555; E-mail: [email protected]. and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with LEGAL RESEARCH AND WRITING. Brief writing, numerous reversals on certiorari. MaryGaye LeBoeuf motions, civil appeals, and trial support since 1995. Lou (405) 728-9925, [email protected] Ann R. Barnes (918) 810-3755; [email protected]

MEDICAL MALPRACTICE ABRAHAM’S SINCE 1959 NATIONWIDE Board-certified doctor expert witnesses, all specialties: $500 flat rate referral. In house case review by veteran BAIL BONDS MD specialists, $750 flat rate, opinion letter, no Attorney’s EXPRESS Service extra charge. Fast, easy, safe since 1998. DISCOUNTED Bond Fees on Referrals www.MedMalExperts.com (888) 521-3601 OFFICE OPEN & STAFFED 24/7 Toll Free 1-877-652-2245 OKC 528-8000 MIKE RATCLIFFE APPRAISALS AND ESTATE SALES; ISA Member, Appraisals of personal property APPEALS and LITIGATION SUPPORT — Research for Probate, Homeowners, Insurance, Charitable and writing by a veteran generalist who thrives Donation, and Divorce. Estate Sales conducted at 25% on wide variety of projects, big or small. Cogent. commission; 30 Years experience, Expert Court Wit- Concise. Nancy K. Anderson, (405) 682-9554, ness in Tulsa County (918) 230-8310. [email protected].

TRAFFIC ACCIDENT RECONSTRUCTION SOIL & GROUND WATER POLLUTION AND INVESTIGATION • ANALYSIS • EVALUATION • TESTIMONY DAMAGE INVESTIGATION: Expert Witness. Dr. G.A. 25 Years in business with over 20,000 cases. Experienced in (JIM) SHIRAZI, Ph.D., RPG, CPSSC. 30yrs Experience automobile, truck, railroad, motorcycle, and construction zone in Oil, Gas, Mining & Environmental cases in Federal, accidents for plaintiffs or defendants. OKC Police Dept. 22 years. District and Corporation Commission Courts. Tel: (405) Investigator or supervisor of more than 16,000 accidents. 478-1228. Email: [email protected]. Jim G. Jackson & Associates Edmond, OK (405) 348-7930 CIVIL APPEALS, RESEARCH PROJECTS, BRIEF GHOSTWRITER. What are you longing to write? The WRITING, DISCOVERY ISSUES & LITIGATION memoir of a counselor. A treatise, textbook, or other SUPPORT. Experienced former federal law clerk will legal instruction. Legal fiction. Be an author. Let me handle state and federal appeals, draft motions and facilitate the completion of your project. Confidential. briefs and assist in trial preparation. Amy H. Welling- Professional. [email protected]. ton (405) 641-5787, E-mail: [email protected]

1348 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007 OFFICE SPACE POSITIONS AVAILABLE

NEW JENKS OFFICE SPACE: Three offices in newly MCAFEE & TAFT IS SEEKING SEVERAL ATTORNEYS constructed building adjacent to golf course. Space to fulfill the growing needs of the firm. The following includes receptionist, conference room, free parking and positions are immediately available for licensed, prac- case referrals. Seeking complimentary practitioners for ticing lawyers with top academic credentials: civil/domestic litigation and criminal defense attor- IP/PATENT ASSOCIATE with at least three years neys. Inquiries to [email protected] or (918) 299-4454. experience in patent application prosecution. Strong technical background required. Electrical engineering LARGE OFFICE IN MIDTOWN TULSA located in the background preferred. CORPORATE/SECURITIES Utica Square area. Space includes secretary, digital ASSOCIATE with three to five years experience in copier, telephone, voicemail, internet service, fax, mergers and acquisitions, public finance and reporting office supplies, kitchen, conference room, free unlimit- and/or private equity and venture capital transactions. ed parking and immediate access to the Broken Arrow LITIGATION ASSOCIATE with one to three years Expressway. Contact (918) 747-3772 for details. experience. Labor and employment litigation back- ground and interest preferred. All inquiries will be GREAT DOWNTOWN OKC LOCATION — ONE treated confidentially. Please submit resume and law OFFICE AVAILABLE FOR SUBLEASE Receptionist, school transcript to Jim Webb, McAfee & Taft A Profes- phone, copier, fax, law library, kitchen, conference sional Corporation, Tenth Floor, Two Leadership room and DSL internet. Call Denise at (405) 236-3600 or Square, 211 N. Robinson, Oklahoma City, OK 73102. No come by 204 N. Robinson, Suite 2200. e-mails or phone calls, please.

SOUTH OKLAHOMA CITY OFFICE SPACE, 4 offices, ANGELA D. AILLES AND ASSOCIATES, in-house reception area, furnished conference room, kitchenette, counsel for State Farm Mutual Automobile Insurance storage room, phone system available for lease or pur- Company, seeks associate attorney with 2-5 years of chase. Parking in front. Will consider lease of part of insurance defense experience. The attorney must be a the available space and sharing common areas. motivated self-starter with a strong desire for $1250/mo. Patrick (405) 314-0686. continuous personal and professional development. Candidates should be able to handle his or her FREE PARKING AND WALK TO BOTH COURT own case load with supervision. Fax resume to HOUSES FROM 4TH & WALKER, OKC. Storefront (405) 478-0906. Equal Opportunity Employer. space. One office available, share expenses of receptionist, phone, copier, fax, and DSL Internet. MID-SIZE OKLAHOMA CITY FIRM; CORPORATE/ (405) 239-7000. M&A ASSOCIATE with 1-4 years experience. Presti- gious AV rated law firm seeks self-motivated associates committed to producing high quality work. Evidence POSITIONS AVAILABLE of academic excellence is required. Corporate law experience and a working knowledge of private securi- UNIVERSITY OF TULSA COLLEGE OF LAW STAFF ties law as well as mergers and acquisitions are ATTORNEY, College of Law – Boesche Legal Clinic: required. Salary above $100,000, with performance The Staff Attorney assists the Clinical Faculty member bonus. Send resume, cover letter outlining previous in the supervision of students in the handling of client experience, transcript and references to Box “E,” Okla- matters for the Muscogee (Creek) Nation Legal homa Bar Association, P.O. Box 53036, Oklahoma City, Program. Responsibilities include assisting students in OK 73152. the drafting and review, filing and researching of documents in Tribal and County offices; attending OKC AV FIRM SEEKS associate with 2-5 yrs. Experi- client meetings for purposes of overseeing the ence. The attorney must be a motivated self starter. student’s interview or execution of documents; partici- This position allows an attorney to handle his or her pating in case team meetings and rounds; assisting in own case load with supervision. An associate is teaching classes when appropriate; handling and needed with experience in insurance defense, workers managing specific cases assigned by the Clinical compensation defense and insurance subrogation. Faculty member and devising and updating pleadings Send resume and salary requirements to Box “N,” and information in the program’s form bank. For more Oklahoma Bar Association, P.O. Box 53036, Oklahoma information on this position, visit our website at City, OK 73152. www.utulsa.edu/personnel/jobs. The University of Tulsa is an Equal Opportunity/Affirmative Action Ramsey and Gray, P.C., DOWNTOWN OKC AV FIRM, Employer. TU offers a competitive benefits package, seeks associate with at least 3 years experience in Fam- including 100% tuition benefit after one year of ily Law and/or Civil Litigation. Strong academic back- employment. Please send cover letter, resume and ground, research and writing skills required. Prior dep- three professional references to: The University of osition, hearing and trial experience preferred. Must be Tulsa, Office of Personnel Services, 600 S. College Ave., prepared to immediately assume substantial responsi- Tulsa, OK 74104; fax to (918) 631-2110 or e-mail to: bility. Compensation and benefits commensurate with [email protected]. Review of applications will abilities. Send resume to Michael D. Gray, at Ramsey commence immediately and continue until this and Gray, P.C., 101 North Robinson Avenue, Suite 700, position is filled. Oklahoma City, Oklahoma 73102.

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1349 POSITIONS AVAILABLE WILLS

SMALL OKLAHOMA CITY FIRM WITH HEAVY CASE ATTN: ALL WILL DRAFTING ATTORNEYS: If any LOAD seeks associate with experience in personal injury, attorney has any information regarding the existence criminal defense and civil litigation. Our firm practice of a formal or handwritten Last Will of a decedent focuses mainly in personal injury, family practice, crimi- named Mary A. Keys, a/k/a Mary Agnes Keys, who nal practice and immigration. All contacts will be kept died on October 11, 2006, a resident of Muskogee confidential. Compensation package commensurate with County, please contact the undersigned who is repre- experience and performance. Send resume to Box “R,” senting Mr. Steve Kauble, Personal Representative of Oklahoma Bar Association, P.O. Box 53036, Oklahoma the Estate of Mary A. Keys, Muskogee County District City, OK 73152. Court, Case No. PB-2006-139. Curtis J. Shacklett, Barber & Bartz, 525 S. Main Street, Suite 800, Tulsa, LEGAL SECRETARY — State Farm Insurance Compa- Oklahoma 74103-4511, (918) 599-7755, E-mail: nies In-House Counsel, Angela Ailles & Associates [email protected]. seeks Legal Secretary. Job duties include word process- ing, docketing/calendaring/scheduling, preparation of standard pleadings, and assisting with preparation FOR SALE of draft discovery responses. Secretarial Experience in ATTRACTIVE 86” X 42” Kimbell desk with blue inlay insurance defense litigation is preferred. State Farm leather and glass top. Leather desk chair and two offers an excellent salary and benefits package. If inter- matching blue leather side chairs. Matching 78” cre- ested, please fax your resume to (405) 478-0906. Equal denza with front folding doors and six drawers. All in Opportunity Employer. excellent condition. (918) 747-4600. OKC DOWNTOWN AV RATED FIRM seeks self-moti- vating, hard working attorney desirous of practicing BOOKS family law and general civil litigation. Submit resume THE LAWBOOK EXCHANGE, LTD. Buys, sells and and writing sample to Box “P,” Oklahoma Bar Associa- appraises all major law book sets. Also antiquarian, tion, P.O. Box 53036, Oklahoma City, OK 73152. scholarly. Reprints of legal classics. Catalogues IMMEDIATE OPENING - EXCELLENT OPPORTUNITY: issued in print and online MasterCard, Visa Small Oklahoma City AV rated law firm with substan- and AmEx. (800) 422-6686; fax: (732) 382-1887; tial caseload seeks experienced paralegal. Experience www.lawbookexchange.com. with plaintiff’s personal injury highly recommended. Benefits include your own office in a beautiful histori- CLASSIFIED INFORMATION cal building, health care/dental package, and great support staff/co-workers. Salary commensurate with CLASSIFIED RATES: One dollar per word per insertion. experience and performance. Must have excellent Minimum charge $35. Add $15 surcharge per issue for organizational, computer, typing and communication blind box advertisements to cover forwarding of replies. skills and be ready to “jump right in”. All contacts will Blind box word count must include “Box ____ , be kept confidential. Send resume to Box “H,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold City, OK 73152. headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and SMALL DOWNTOWN TULSAA-V rated firm with busi- rates. ness and commercial litigation practice seeks lawyer with DEADLINE: Tuesday noon before publication. Ads 2 to 5 years experience. Flexible hours possible. Pay com- must be prepaid. Send ad (e-mail preferred) in writing mensurate with experience and effort. Contact will be stating number of times to be published to: kept confidential. Please submit resume to: Box “C,” Melissa Brown Oklahoma Bar Association, P.O, Box 53036, Oklahoma Oklahoma Bar Association City, OK 73152. P.O. Box 53036 Oklahoma City, OK 73152 E-mail: [email protected] Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be consid- ered an endorsement of the procedure or service involved. All placement notices must be clearly non-discriminatory.

1350 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007

Vol. 78 — No. 15 — 5/12/2007 The Oklahoma Bar Journal 1351 THE BACK PAGE Fun Is Not a Four-Letter Word 10 Ways to Have Fun Practicing Law By Melanie Jester

ave you stopped lately to consider whether you are injecting some fun into your every- day work week? Curiosity and creativity are a lawyer’s most essential tools. Here are a Hfew suggestions (ranging from the serious to the absurd) to jump-start your work week: Send a monk-e-mail. Dress your chimp Think outside the box. Pick one area of G1 for laughter success, add a text message !7 your practice you would like to improve and select a voice. Your chimp will speak upon (negotiation techniques, marketing your e-mail to a friend (or opposing counsel)! Go practices, billing methods) and brainstorm about to CareerBuilder.com/monk-e-mail. novel approaches. Consult colleagues for sugges- tions, search for an Internet-based discussion or Foster a client-relationship. The practice 2 check out The Art of Possibility: Transforming Pro- N of law is largely the practice of building fessional and Personal Life by Rosamund Stone relationships. Learn a hobby or personal Zander and Benjamin Zander. interest of a client. Send a small gift, relevant book, article or even a cartoon recognizing your Conduct a self-evaluation. Where are client’s interest. M8 you professionally? Set goals on how to improve neglected or underdeveloped Pick a pick-me-up theme song. Upbeat skills. Keep the goals simple. Take some action #3 music is a sure-fire way to infuse some each day toward reaching your goals. Don’t energy. Need ideas? Poll your co-workers stress out about these goals! This is supposed to for a list of their favorites or check out the Real RELAX you! Simple iMix on iTunes, a playlist of “power songs.” Spread enthusiasm. Write a note of con- 9 gratulations, praise or encouragement to Give yourself gold stars. 3 Tackle a project a co-worker. I4 you’ve been procrastinating over and earn a gold star. Chart your progress and Liven up your language. The lawyer’s give yourself one month to earn 10 stars. At the medium is words. If you’ve become end of the month reward yourself with a H10 mired in the monotony of legalese, give a personal splurge. boost to your vocabulary. Subscribe to Merriam-Webster’s Word of the Day e-mail at Unwind with a “deep thought.” Remem- www.m-w.com. L5 ber the soothing voice and picturesque nature scenes that accompanied DON’T STOP WITH THESE Saturday Night Live’s Deep Thoughts SUGGESTIONS. Come up with by Jack Handy? When work is too your own top 10 list. Deliver it to serious, unwind with one of your your office colleagues Letterman favorite Handy thoughts at style. www.deepthoughtsbyjackhandy.com. NEED HELP? Look for suggestions Stretch your brain. Schedule in these books: 301 Ways to Have J6 one hour at least once a month Fun at Work by Dave Hemsath and to study recent developments Leslie Yerkes; Work Like Your Dog by in your practice area. Luke Barber and Matt Weinstein. Write a brief summary of what you learned and e-mail it to your Ms. Jester is an attorney in Oklahoma practice group. Ask for comment and City and chairs the OBA Work/Life feedback. Balance Committee.

1352 The Oklahoma Bar Journal Vol. 78 — No. 15 — 5/12/2007