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761 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016

Theme: Law Day pg. 798 Editor: Carol Manning Protecting Nonprofessional contents Mineral Owners April 16, 2016 • Vol. 87 • No. 11 De partments 764 From the President 822 From the Executive Director 823 Law Practice Tips 827 Ethics/Professional Responsibility 829 OBA Board of Governors Actions 832 Oklahoma Bar Foundation News 835 Young Lawyers Division 837 For Your Information 839 Bench and Bar Briefs 842 In Memoriam 844 Editorial Calendar 845 What’s Online 848 The Back Page Plus 798 When the Deal’s Too Good: Protecting Nonprofessional Mineral Owners in Oklahoma Cover Art: Poster created by By Brian J. Stanley Helena Singleton, ninth grade, 805 Business Courts: Specialized Courts for Booker T. Washington High School, Tulsa Complex Business Litigation By Spencer C. Pittman 810 Understanding Data Breach Liability: Features The Basics Every Attorney Should Know 767 Events Across the State Emphasize the By Peter J. Arant Importance of Law Day 816 Volunteers Make High School Mock Trial By Albert Hoch and Richard Vreeland Program a Success By Marsha Chojnacki 771 Lawyer Volunteers Needed to Give Free Legal Advice 819 Legislative Activity Increases By Duchess Bartmess 772 Law Day 2016 Contest Winners 787 County Law Day Chairpersons 790 County Bar Association Activities pg. 810 796 Chief Justice Issues Law Day Directive Understanding Data Breach 797 Oklahoma’s State Law Day Liability Proclamation

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 763 FROM THE PRESIDENT

On Law Day Let Us Celebrate Trial by Jury By Garvin A. Isaacs

On Aug. 14, 1670, in London, William Penn and a fel- returned to open court and found low Quaker, William Meade, spoke out against the king of Penn not guilty. Penn demanded England. Penn and his co-defendant, Meade, were tried for his liberty, but was taken to jail. sedition and inciting rebellion.1 After hearing the evidence The jurors were fined, which they and arguments, the jury retired to deliberate. When the jury refused to pay, and they were sent returned to open court and announced that it was unable to to prison. Later, Penn and his co- reach a verdict, one of the court officers threatened juror defendant obtained their freedom Edward Bushel.2 Two threats were reported, one in which when Penn’s father paid a fine. the court officer said to Edward Bushel, “You deserve to be Eight of the jurors paid their indicted more than any man that hath been brought to the fines and were freed, but Edward bar of this day” and another court officer threatened Bushel 3 Bushel did not. He and three with branding. other jurors hired a According to historians, the jury was lawyer to argue ha- sent back to reconsider its verdict and, beas corpus in what upon return to open court, found that And so it was in has become known William Penn was “guilty of speaking in as Bushel’s Case. An Grace Church street.” Not being the ver- colonial days of appellate court, later dict sought by the judges, the jurors America that in the year, ruled were threatened again. At this point in that the imprison- the proceeding, the 27-year-old William trial by jury ment of the Penn Penn courageously stood and replied, jury was illegal and “The agreement of twelve men is a ver- became a part declared in its opin- dict in law, and such a one being given of our country’s ion that no jury can by the jury, I require the Clerk of the be punished for its Peace to record it . . . and if the jury history as a verdict.6 bring in another verdict contrary to this, protection of The ruling in I affirm they are perjured men in law. Bushel’s Case be- You are Englishmen. the people. came known in Eng- Mind your privilege. land and America. Give not away your 4 The common man right.” of England and America embraced The next morning, upon returning into the proposition that a jury was open court, one of the judges threatened free to render verdicts without to cut juror Edward Bushel’s throat. fear from the wealthy, the power- Again, Penn responded with words that ful and the government. As one would empower common people to stand writer observed, “The Jury of up for the right to trial by jury. “If not one’s peers that the barons had guilty be not a verdict, then you make the provided had at last become jury and the Magna Charta a mere nose of what the barons never wanted it wax. . . What hope is there ever of having to be, a democratic parliament of President Isaacs justice done, when juries are threatened twelve.”7 practices in Oklahoma City. and their verdicts rejected.”5 After being [email protected] locked up for another night, the jury 405-232-2060 cont’d on page 803

764 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Associa- tion. All rights reserved. Copyright© 2016 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, u u Board of Governors, Board of Editors or Volume 87 No. 11 April 16, 2016 staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or JOURNAL STAFF BOARD OF EDITORS implied by publication. Advertisers are solely JOHN MORRIS WILLIAMS MELISSA DELACERDA responsible for the content of their ads, and Editor-in-Chief Stillwater, Chair the OBA reserves the right to edit or reject [email protected] any advertising copy for any reason. LUKE ADAMS, Clinton Legal articles carried in THE OKLAHOMA CAROL A. MANNING, Editor RENÉE DEMOSS, Tulsa BAR JOURNAL are selected by the Board of [email protected] Editors. Information about submissions can PATRICIA A. FLANAGAN be found at www.okbar.org. LEMITCHEL KING Yukon BAR Center Staff Communications Specialist AMANDA GRANT, Spiro John Morris Williams, Executive Director; [email protected] Gina L. Hendryx, General Counsel; Joe ERIN MEANS, Moore Balkenbush, Ethics Counsel; Jim Calloway, MACKENZIE MCDANIEL Director of Management Assistance Program; Advertising Manager SHANNON L. PRESCOTT Craig D. Combs, Director of Administration; [email protected] Okmulgee Susan Damron Krug, Director of Educational MARK RAMSEY, Claremore Programs; Beverly Petry Lewis, Administrator LAURA STONE MCLE Commission; Carol A. Manning, Director Communications Specialist LESLIE TAYLOR, Ada of Communications; Robbin Watson, Director [email protected] of Information Technology; Jane McConnell, JUDGE ALLEN J. WELCH Coordinator Law-related Education; Loraine Oklahoma City Dillinder Farabow, Tommy Humphries, Debbie Maddox, Katherine Ogden, Steve Sullins, Assistant General Counsels OFFICERS & Manni Arzola, Gary Berger, Debbie Brink, BOARD OF GOVERNORS Laura Brown, Tanner Condley, Cheryl Corey, Nickie Day, Ben Douglas, Dieadra Florence, GARVIN A. ISAACS, President, Oklahoma Johnny Marie Floyd, Matt Gayle, Marley City; PAUL D. BRUNTON, Vice President, Harris, Brandon Haynie, Suzi Hendrix, Tulsa; LINDA S. THOMAS, President-Elect, Bartlesville; Misty Hill, Darla Jackson, Debra Jenkins, DAVID A. POARCH JR., Immediate Past President, Norman; Lemitchel King, Jaime Lane, Durrel Lattimore, JOHN W. COYLE III, Oklahoma City; JAMES R. GOTWALS, Mackenzie McDaniel, Renee Montgomery, Tulsa; KALEB K. HENNIGH, Enid; JAMES R. HICKS, Tulsa; Sharon Orth, Wanda F. Reece, Tracy Sanders, Mark Schneidewent, Laura Stone, ALISSA HUTTER, Norman; JAMES L. KEE, Duncan; JOHN Jan Thompson, Krystal Willis & W. KINSLOW, Lawton; JAMES R. MARSHALL, Shawnee; Roberta Yarbrough SONJA R. PORTER, Oklahoma City; KEVIN T. SAIN, Idabel; Oklahoma Bar Association 405-416-7000 ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Miami; BRYON Toll Free 800-522-8065 J. WILL, Oklahoma City, Chairperson, OBA Young FAX 405-416-7001 Lawyers Division Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published three Ethics Counsel 405-416-7055 times a month in January, February, March, April, May, August, General Counsel 405-416-7007 September, October November and December and bimonthly in Law-related Education 405-416-7005 June and July by the Oklahoma Bar Association, 1901 N. Lincoln Lawyers Helping Lawyers 800-364-7886 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage Mgmt. Assistance Program 405-416-7008 paid at Oklahoma City, Okla. Mandatory CLE 405-416-7009 OBJ & Communications 405-416-7004 Subscriptions $60 per year except for law students registered with the Board of Bar Examiners 405-416-7075 OBA who may subscribe for $30 and senior members who may sub- Oklahoma Bar Foundation 405-416-7070 scribe for $25; all active members included in dues. Single copies: $3 Postmaster Send address changes to the Oklahoma Bar Association, www.okbar.org P.O. Box 53036, Oklahoma City, OK 73152-3036.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 765 766 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Events Across the State Emphasize the Importance of Law Day By Albert Hoch and Richard Vreeland aw Day celebrates the idea that everyone is entitled to justice, which is one of the fundamental notions of what Amer- Lica is all about. The Preamble to the Constitution of the United States of America states, “We the People of the United States, in Order to form a more Perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Con- stitution for the United States of America.”

The idea of justice and particularly the in that four of the first 10 amendments to the rights of those suspected or accused of a Constitution are dedicated to protecting the crime are prominent in our history and begin rights of the accused. These rights are fought in Article III of the Constitution with the right for by lawyers in our judicial system, which to trial by jury. The importance of protecting demands impartiality from members of the the rights of the accused is further illustrated judiciary and zealous representation from attorneys on both sides in order to allow a person to confront his accusers while at the same time providing victims and witnesses a forum to have their day in court as well. Law Day is a great opportunity to highlight and celebrate the work that lawyers do in our communities. Whether from zealous advocacy for our clients, to giving of our time to service organizations and pro bono representation, what lawyers do makes a difference. The tradition of Law Day has a long history of more Mary Bishop and Sharon Baldwin discuss the than 60 years and began here in Oklahoma. legal process of landmark marriage equality case Wewoka attorney and OBA Past President during production of the Ask A Lawyer TV show. Hicks Epton conceived the idea for Law Day

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 767 in the late 1950s, and it has evolved into a national celebration. Oklahomans will observe Law Day (officially May 1) with activities and events taking place over several weeks Ask A throughout the state. Again this year we held our annual art and writing contests for students in pre-kindergar- H ten through 12fth grade. The contest focused on the Law Day theme: “Judges, Juries and Lawyer Justice: The Constitution and the Rights of the Accused.” We also put together an informative television show, highlighting important topics and the impact lawyers make on the lives of individuals and the law. Additionally, Thursday, April 28 with the help of all our attorney volunteers, we will again offer 12 hours of nonstop free legal advice. This is the 38th year the OBA has 7-8 p.m. offered the Ask A Lawyer TV show and free legal advice community service event. ASK A LAWYER TV SHOW The Ask A Lawyer television show is set to air Thursday, April 28, at 7 p.m. across the Featuring state on OETA. This year’s show covers a wide range of topics of interest to Oklahomans. Segments on: The show will examine the high I Female incarceration and rate of female alternative programs incarceration. We will hear from a I Importance of jury trials young, single and jury service mother who was I Marriage equality and arrested and threatened with today’s new families long-term incarceration and the loss of her child. Hosted and Through a pro- Moderated by gram offering Dick Pryor Brittany, a single mom alternatives to facing incarceration after a prison, she was drug arrest, turned her life able to get her life Special Guest: around with the help of a back on track. Oklahoma Supreme Court program aimed at reducing You’ll meet the the number of women in Chief Justice John Reif Oklahoma liti- Oklahoma’s prisons. gants and some of the legal team members in a landmark U.S. Supreme Court case, who will talk about how their case helped pave the way to legalizing same-sex marriage across the U.S. and affected other dynamics of family law, including estate planning and probate, child custody and adoption.

768 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 awards a difficult task! The winners have been announced, and their winning entries can be viewed at www.okbar.org and in this issue. FREE LEGAL ADVICE Many county bar associations are part of the statewide Ask A Lawyer community service project to take place on Thursday, April 28, when the public can call in for free legal advice for 12 nonstop hours. After a successful initial test last year, we are expanding promotion of the option to email a legal question instead of calling. Two email addresses were created — [email protected] and [email protected] for Span- ish-speaking Oklahomans. Participating in Ask A Lawyer is a great way for all Oklahoma lawyers to celebrate Law Day. This annual event gives us the opportunity to provide a much valued community service while pro- Viewers of the Ask A Lawyer TV show will hear moting a positive public image of attorneys Oklahoma Supreme Court Chief Justice John Reif and the OBA. discuss the Law Day theme and introduce contest The OBA Law Day Committee works with winners. each county’s Law Day chairperson in setting Included on the show are some of Oklaho- up a network of local phone numbers people ma’s legal practitioners who talk about the can call during the broadcast. Volunteer attor- importance of jury service and why they neys in each partic- appreciate those who serve as jurors. OBA ipating county staff President Garvin A. Isaacs shares with view- the phones and ers why he has made juror appreciation a key answer questions component of his presidential year. for a predeter- mined time period. Supreme Court Chief Justice John Reif also Oklahoma and joins in the celebration of Law Day. Chief Jus- Tulsa County attor- tice Reif shares his thoughts on judges, juries neys work together and justice and recognizes the student contest to staff the toll-free, winners and their winning artwork. statewide tele- CONTESTS AND ACTIVITIES phone number from 9 a.m. – Nearly 700 students from across the state 9 p.m. submitted entries centered on this year’s theme, “Judges, Juries and Justice: The Consti- Your help is OBA President Garvin tution and the Rights of the Accused.” We needed to make Isaacs appears in the Ask asked first thru 12th-grade students to share this community A Lawyer TV show to share what they’ve learned about the various service project a his thoughts about jury aspects of the Law Day theme through grade success. It takes a appreciation. appropriate writing prompts and artwork. total of 30 attor- Pre-K and kindergarten students had a choice neys for each two-hour shift to fully staff the of coloring pages related to the theme to sub- statewide number. That effort, combined with mit as entries, allowing them to show off their the local county bars and the emailed ques- budding creative abilities. Oklahoma’s stu- tions creates a huge need for attorneys to step dents submitted hundreds of displays demon- forward. Activities planned in each county strating an excellent understanding of the are described in a separate story. To volun- subject matter. The high quality of work made teer, contact your local county Law Day the judges’ decisions for selecting the top chairperson.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 769 Oklahoma Supreme Court Chief Justice John Reif welcomes Law Day contest first-place winners to a recognition ceremony at the state Capitol. Also attending were OBA Executive Director John Morris Wil- liams and Law Day Committee Co-Chair Richard Vreeland. The Law Day Committee is continuing to Whether it is volunteering to provide free reach out to the Latino community by offering legal advice in your county or making a pre- free legal advice in Spanish. This year Span- sentation to a local school group or organiza- ish-speaking callers will be asked to call the tion, we hope that you will participate in Law statewide toll free number from 3 to 9 p.m. If Day. With OBA Law Day Committee mem- you speak Spanish or know nonattorneys who bers, county Law Day chairpersons, their would volunteer to translate, we need your committee members and volunteers across help! the state, this year’s Law Day celebration will be another success. DIRECTIVE AND PROCLAMATION Chief Justice John Reif is continuing the OBA Law Day tradition of issuing a Law Day About The AuthorS Directive, encouraging courts to host Law Day Albert (Al) Hoch is president events or to visit schools speaking on the of the Oklahoma Criminal De- role of the judiciary. The court’s website, fense Lawyers Association and a www.oscn.net, includes a list of those Law Day member of the National Associa- activities and event ideas. Gov. Mary Fallin has tion of Criminal Defense Law- again this year signed a proclamation designat- yers. He serves as OBA Law Day ing May 1, 2016, as Law Day in Oklahoma. Committee co-chair. He is a GET INVOLVED graduate of the OCU School of Law and has been practicing primarily in the area of As we prepare to celebrate Law Day, the criminal defense for 29 years. OBA Law Day Committee will soon begin planning for next year’s Law Day activities. Contest promotion begins at the end of the Richard Vreeland is the assis- summer. If you have ideas for next year’s Law tant deputy director of Legal Aid Day or just want to be involved, then join us Services of Oklahoma. He serves on this fun, yet hardworking committee. as co-chair of the OBA Law Day If you would like to be a part of this team, Committee. He is a 2006 gradu- you can contact Richard Vreeland, ate of the OU College of Law. 405-488-6821, [email protected]; or Al Hoch, 405-521-1155, [email protected].

770 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 771 Contest Winners The OBA Law Day Committee would like to thank Oklahoma educators, students and their families for participating in the 2016 Law Day Contest. This year’s theme was “Judges, Juries and Justice: The Constitution and the Rights of the Accused.” The theme recognized the importance of our judicial system and the role judges and juries play in the lives of every citizen. Contest participants were encouraged to think critically about these issues and reflect their importance in their entries. As with previous years, pre-kindergarteners and kindergarteners entered the coloring contest, while students in first through 12th grade entered either the writing or art category. Writing prompts were created for each grade and were tailored to incorporate the 2016 Law Day theme and align with the Oklahoma State Department of Education social studies standards. The art contest drew very diverse student entries, including mixed media artwork, poetry, photography and collages. H Grand Prize Contest Winner H Seneca Smith Seventh Grade Covenant Community School, Stillwater Teacher: Kelly Carman

Pop-up book depicting the history of judicial systems

772 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Coloring Contest Winners H

First Place Pre-Kindergarten Sophie Buchanan Virginia Smith Elementary, Harrah Teacher: Tara Lowber H

Second Place Pre-Kindergarten Olivia Black Ada Early Childhood Center, Ada H Teacher: Mrs. Winter

First Place Kindergarten Kaylee Nauss Seiling Elementary, Seiling Teacher: Vanessa Unwin

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 773 H Coloring Contest Winners H

Second Place Kindergarten Elizabeth Kwok Nichols Hills Elementary, Oklahoma City Teacher: Ms. Sinclair

H Art Contest Winners H

First Place First Grade Paetyn Gilliam Covenant Community School, Stillwater Teacher: Susan Schaefer H

First Place Second Grade Rae Hermann Covenant Community School, Stillwater Teacher: Tabatha Watkins

774 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Art Contest Winners H

Second Place Second Grade Eden Stromski Covenant Community School, Stillwater Teacher: Tabatha Watkins H

First Place Third Grade Noah Gosney Covenant Community School, Stillwater First Place Teacher: Tabatha Watkins First Grade Paetyn Gilliam Covenant Community School, Stillwater Teacher: Susan Schaefer H

Second Place Third Grade Trevor Grace Covenant Community School,

Stillwater

Teacher: Tabatha Watkins H

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 775 H Art Contest Winners H

First Place Fourth Grade Connor Watkins Covenant Community School, Stillwater Teacher: Ashlee McDaniel

H H

Second Place Fourth Grade Kennedie Sanders Covenant Community School, Stillwater Teacher: Ashlee McDaniel

First Place Fifth Grade Ella Beall Hope Christian Academy, Skiatook Teacher: Colton Engleman

776 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Art Contest Winners H

We are thankful for Liberty, for Freedom of Rights Second Place For Justice, equality and the chance to fight Fifth Grade For laws which give us peaceful Lives Cherish Tattershall And Rules to help our Country thrive. Hope Christian Academy, The Bill of Rights fives us Freedom of Speech, Skiatook Of Religion and gathering, to say our Beliefs. Teacher: Colton Engleman We’re Thankful for these, And the men who Wrote them. Thinking ahead from the start to the End. H

First Place Sixth Grade Bailee Walters Covenant Community School,

Stillwater

Teacher: Kelly Carman H

Second Place Sixth Grade Sarah Zelenske Hope Christian Academy, Skiatook Teacher: Michelle Starr

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 777 H Art Contest Winners H

Judge, Jury, Justice

First Place There is a dream that justice is given to all Seventh Grade With the constitution justice will not fall Madee Kuehl And now with the judge and jury Covenant Community School, Justice is given to all Stillwater Let freedom ring Teacher: Kelly Carman America stood strong

Second Place Seventh Grade Faith Beagley

Oklahoma Bible Academy, Enid

Teacher: Charlotte Williams H

First Place Eighth Grade Jordan Betz Oklahoma Bible Academy, Enid Teacher: Charlotte Williams

778 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Art Contest Winners H

A Judge’s Day In a courthouse in the month of May A judge was ready to begin his day. He donned his robe of black Second Place And prepared to give his gavel a whack. Eighth Grade As he entered the bailiff said “All rise” The giver of justice had just arrived. Austin Banfield As he listened to the lawyers Covenant Community School, And the evidence piled up, Stillwater It seemed everything was Teacher: Kelly Carman Going amuck. He was smart, he was clever, He knew the law And left everyone in awe. As the day ended the verdict Was handed down. He had done his duty to Serve his town.

First Place Ninth Grade Helena Singleton Booker T. Washington High School, Tulsa Teacher: Jeffrey Mosburg

Second Place Ninth Grade Jenny Hopkins Oklahoma Bible Academy, Enid

Teacher: Charlotte Williams H H

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 779 H Art Contest Winners H

First Place Tenth Grade Olivia Anderson Plainview High School, Ardmore Teacher: Alexa Healey

Second Place H Tenth Grade Inpeng Senguilar Oklahoma Bible Academy, Enid

Teacher: Charlotte Williams H

First Place Eleventh Grade Jessica Johnson Oklahoma Bible Academy, Enid Teacher: Charlotte Williams

780 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Art Contest Winners H

Second Place Eleventh Grade Lauren Anderson Oklahoma Bible Academy, Enid Teacher: Charlotte Williams H First Place Twelfth Grade Claudia Baxter Covenant Community School, Stillwater Teacher: Elizabeth Albright

Second Place Twelfth Grade Tara Kelley Oklahoma Bible Academy, Enid Teacher: Charlotte Williams

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 781 H Writing Contest Winners H

American Hero: Pocahontas First Place Pocahontas is nice. First Grade Pocahontas is brave.

Londyn Watkins

Pocahontas is a friend to everyone. Covenant Community School, Pocahontas likes animals. Stillwater H She teaches us that women are strong Teacher: Susan Schaefer like men. H She is kind and fair to everyone.

Justice First Place Justice means you treat someone how you want Second Grade them to treat you. Jaxson Boyer Justice means being fair with the other people, we also have respect for others and listen to Wilson Elementary, Seminole grownups. Teacher: Jeri Stafford Justice means to have friendship, if you do something on accident then you need to apologize. Justice means following the rules and laws, you need to have good behavior. Second Place • Second Grade If you call someone names or hit them, Justice Bruce Edgel means you have to pay the consequences. Wilson Elementary, Seminole Teacher: Jeri Stafford To read Bruce’s entry, go to www.okbar.org H

First Place What Our State’s Government Means To Me Third Grade We live in the State of Oklahoma. Oklahoma is one of the Lilly Cadenhead fifty states that make America. Each state has its own government. Oklahoma has a government. We have a governor and Wilson Elementary, Seminole we have a group of people who make our laws. We also have Teacher: Erica Dean judges that are part of our government. Our State’s government is important to me because it makes laws that protect me. Our State’s government makes schools happen so I can learn about the laws. It is also important to me because the government makes sure people are treated fairly and allows Second Place • Third Grade people to go wherever they want. Our State’s government Zane Prawl makes sure people are treated fairly even when they are accused of breaking the laws that the government makes. Covenant Community School, Stillwater Teacher: Tabatha Watkins Read the rest of Lilly’s entry at www.okbar.org To read Zane’s entry, go to www.okbar.org

782 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Writing Contest Winners H

Why the Accused Have Rights in Our Nation First Place Fourth Grade The accused have rights because they are all humans and so they need to be treated fairly. In some other countries they don’t Callen Villagrana have rights like we do in the United States. Whenever people in Horace Mann Elementary, those countries are accused of a crime they might be impris- Duncan oned for something they didn’t do or given a cruel and unusual Teacher: Angelia Smith punishment. In the United States we have many rights for the accused like the right to a lawyer or protection from unreason- able searches and seizures, which means that the police can’t go into your house without a warrant. But I’m going to tell you about the rights that I think are the most important. Second Place • Fourth Grade Read the rest of Callen’s entry at www.okbar.org Mina Loghry Nichols Elementary, Miami Teacher: Jenny Machado To read Mina’s entry, go to www.okbar.org

U.S. Constitution First Place The U.S. Constitution played a big role in creating our gov- Fifth Grade ernment. Before the Constitution, the Articles of Confederation governed our country. The Constitutional Convention was the Lexi Zimmer meeting in which the new Constitution was planned and written. The three branches of government play an important role Nichols Elementary, Miami in our government. Teacher: Jenny Machado The Articles of Confederation were approved by Congress in 1777. The Articles of Confederation were purposely made weak because people were afraid a strong or central government would threaten their freedom. Second Place • Fifth Grade Read the rest of Lexi’s entry at www.okbar.org Karson Jinks Nichols Elementary, Miami Teacher: Jenny Machado First Place H To read Karson’s entry, go to www.okbar.org Sixth Grade Wyatt Hood Where did laws and equal rights come from? Where did law Oklahoma Christian Academy, come from? Many scholars would point toward the 13th cen- Edmond tury. Kings and queens have been in power from the start of Teacher: Mrs. Finley history. However, the idea that people should have some say was the thought that developed in 1215 which became known as Magna Carta. The barons in England wanted to stop a king, King John, from abusing his power with the people of England Second Place • Sixth Grade suffering, hence the Magna Carta was written. The bigger question, how did the Magna Carta influence the creation of Ryan Palk the United States Constitution? Whittier Middle School, Norman Read the rest of Wyatt’s entry at www.okbar.org Teacher: Cindy Castell To read Ryan’s entry, go to www.okbar.org

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 783 H Writing Contest Winners H

A Comparison of the United States and First Place Israeli Judicial Systems Seventh Grade Did you know that Israel has had a long standing relation- Daniel Allen ship with the United States which has helped Israel develop- a judicial system similar to that of the United States? Cur St. John’s Episcopal School, Oklahoma City rently, with all the conflict going on in the Middle East, Israel remains one of the few countries in the region with a judicial Teacher: Mr. Marshall system similar to the United States. America’s founding fathers set up the judiciary system when they wrote the Constitution of the United States and Second Place • Seventh Grade the Bill of Rights. They set up three levels of courts which Robert Dobbins were; the United States District Courts, the United States Courts of Appeals and the Supreme Court of the United Hope Christian Academy, Skiatook States. Teacher: Michelle Starr Read the rest of Daniel’s entry at www.okbar.org To read Robert’s entry, go to www.okbar.org

First Place Eighth Grade Judicial Review Explained: A Great Katie McQuay Constitutional Concept… Or Is It? Hope Christian Academy, The three branches of government are essential to our Skiatook nation’s system of law and order. But what happens when Teacher: Michelle Starr Congress or even the president goes too far and disobeys the Constitution? Or what if one of those branches is following a law, but the law is unconstitutional? The Supreme Court has the power to stop it. It is able to review and, if necessary, nulli- Second Place • Eighth Grade fy the Executive and Legislative branches’ actions. This concept is called judicial review. Jenny Chapman Read the rest of Katie’s entry at www.okbar.org Hope Christian Academy, Skiatook Teacher: Michelle Starr To read Jenny’s entry, go to www.okbar.org

First Place Chief Justice John Marshall once said “The very essence of Ninth Grade civil liberty ... consists in the right of every individual to claim the Karina Feng protection of the laws, whenever he receives an injury.” His words illustrate the complex system the United States has today to pro- Norman North tect individual rights. The US Constitution, the supreme law of the High School, land, created a system to share power between federal and state Norman governments. The judiciary system in the US is divided into feder al and state court systems. However, it is not this simple. Each - and every state has their own judicial structure, and varies widely from the federal court system.

H Read the rest of Karina’s entry at www.okbar.org H

784 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Writing Contest Winners H

The Rights of the Accused First Place On a warm, sunny afternoon in 2015, my parents gath- Tenth Grade ered around the television in our family room to watch the Saudi news. As Saudi nationals, they liked to keep up Abeer Shahid with the news in their home town. What was routine for Lawton High School, Lawton them was rare for me. I joined them that day out of bore- Teacher: Terrance Freeman dom. I remember one news story in particular. A blogger by the name Raif Badawi was arrested for creating a website called Free Saudi Liberals in 2012. The news story was talking about the harsh punishment Badawi had been sentenced to; 1,000 lashes and ten years in prison plus a fine. Hearing about the harsh punishment was shocking to me. It made me realize how different the Second Place rights of the accused in Saudi Arabia were compared to Tenth Grade the United States. What Americans considered basic rights are unheard of in Saudi Arabia. Kheri Marable One of the basic rights in the United States is the free- Lawton High School, Lawton dom of speech. What Badawi did was exercise that right in Teacher: Terrance Freeman a country that does not recognize it. To read Kheri’s entry, go to www.okbar.org Read the rest of Abeer’s entry at www.okbar.org H Speaking Freedom First Place Being a teen in this day of age is hard. Especially Eleventh Grade when we as people, do not feel like we’ve been heard. This leads to many teens rebelling against the schools, Chrystal Fannin the justice system, and even our own parents. Some- Lawton High School, Lawton times it gets out of hand, and leads to nothing but pure chaos. It is the beginning of 2016, and already Teacher: Terrance Freeman many controversies have surfaced up from the previous years. Giving many teens, and their parents, very strong opinions on several different objectives. This is okay. Having opinions is okay. At least that’s what the Second Place First Amendment tells us. It gives everyone freedom Eleventh Grade of speech. However, just like everything else led by rebellious feelings, our opinions may also come out as Jazmyne Woodson unconstitutional. For example, Tinker V. Des Moines Lawton High School, Lawton Independent School District. This hearing took place Teacher: Terrance Freeman in 1969, when only four years prior, a couple of teens To read Jazmyne’s entry, go to were wearing expressive clothing that the school www.okbar.org deemed “inappropriate.” The teens were suspended, and in retaliation the parents sued under the First Amendment. This case is just one of many that example how people take different views of the First H Amendment. H Read the rest of Chrystal’s entry at www.okbar.org

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 785 H Writing Contest Winners H

First Place On the Evolution of the Twelfth Grade Rights of the Accused Aaron Carmichael The “rights of the accused” has become a buzz term on Edmond Memorial High School, modern police TV shows. In popular shows such as CSI, Edmond Law & Order, or NCIS, the rights of the accused are commonly used as plot devices to add complexity and twist Teacher: Greg Oppel However, if these shows took place fifty or more years ago, then they could not be used as a plot device simply because the rights of the accused were large gray areas in the law. Over the past century, several court cases have occurred that have shaped the rights of the accused that we know today. One of these monumental cases was Gideon V. Wainwright in 1963. Second Place Twelfth Grade In 1961, Clarence Earl Gideon was arrested for breaking and entering into a pool hall and stealing money from the Matthew O’Connor hall’s vending machines. Gideon was unable to afford a Edmond Memorial High School, lawyer, and the state of Florida informed him that it would Edmond only provide lawyers to indigent defendants that might be Teacher: Greg Oppel facing the death penalty. To read Matthew’s entry, go to www.okbar.org Read the rest of Aaron’s entry at www.okbar.org

Appellate Practice

Upcoming speakers: 11:30 AM

April 18th Referee Barbara Swimley Procedural pitfalls in appellate practice. (1/0)

May 16th D. Kent Meyers, Esq. Regarding the Initiative Petition in 2016 OK 1 (1/0)

Our monthly meetings are held in both OBA’s Room 131, and in the Room 2205 of the Main Classroom Building, OSU/Tulsa, by simulcast.

Lunch provided to Section Members. Non-members are charged $10 for lunch.

Mark T. Koss, chair RSVP [email protected]

786 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 County Law Day Chairpersons

Adair Creek LeFlore Pontotoc Kathryn Morton Kelly M. Badaracco Jolyn Belk Dale Rex 918-696-7956 Allen 918-647-8681 580-332-7200 Beaver 918-224-3921 and Pushmataha Todd Trippet Custer Amanda Grant Charlie M. Rowland 580-625-4597 Carissa King 918-962-2436 580-298-2525 Blaine 580-323-1516 Lincoln Seminole Judge Mark Moore Delaware Gregory Upton Judge Tim Olsen 580-623-5025 Lee Griffin 405-258-1334 405-257-3386 Bryan 918-253-5800 McClain and Richard Long Garfield Alyson Gildner Jack Cadenhead 580-924-1874 Piper Bowers 405-527-7575 405-382-6341 Canadian 580-234-8447 McCurtain Sequoyah Curtis Chandler Grant Emily Herron Kent Ghahremani 405-354-5276 Judge Jack 580-286-7611 918-775-5900 Carter Hammontree Muskogee Stephens Justin R. Landgraf 580-395-2258 Roy D. Tucker Carl J. Buckholts 580-226-6277 Harmon 918-684-6201 580-252-3240 Choctaw David L. Cummins Noble Texas John Frank Wolf III 580-688-9276 Shane Leach Nathan McCaffrey 580-326-6427 Jackson 580-336-2039 580-338-8764 Cimarron Brent S. Howard Okfuskee Tulsa George H. Leach 580-318-8829 Don McFarland Kara Pratt 580-544-3624 Johnston 918-623-2717 918-599-7755 Cleveland Dustin Rowe Oklahoma Wagoner Don G. Pope 580-371-9561 Amber Martin Richard Loy Gray Jr. 405-360-7555 Kay 405-236-8888 918-485-2889 Comanche Ben Lundquist Ottawa Washington Tyler Johnson 320-304-1764 Matt Whalen Jim Elias 580-248-4675 Kingfisher 918-540-2199 918-336-4132 Craig Judge Robert Davis Payne Washita Quinn Stine 405-375-3869 Steve Ruby Brooke Gatlin 918-256-7511 Latimer 918-606-6886 580-832-3144 Chris Henry Pittsburg Woodward 918-465-3451 Mark E. Fields Erin N. Kirksey 918-423-4611 580-256-9000

Is your county missing from this list? Please submit the name of your Law Day chairperson as soon as possible to OBA Law Day Coordinator Carol Manning, 405-416-7016, [email protected].

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 787 788 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016

Legal Aid Services of Oklahoma, Inc. presents A SPRING SEMINAR FOR OUR VOLUNTEER ATTORNEYS

Tuesday, May 3, 2016

Conference Center, OSU Tulsa, 700 North Greenwood, Room 150 MCLE Credit of 6 Hours FREE for Attorneys Actively Serving on a Pro Bono Panel To register, go to: www.probono.net/ok/cle

AGENDA

8:30 a.m. Registration

9:00 - 9:50 “What to Do When Your Client’s Wages and Bank Account Are Garnished for Civil Judgments” Laura Frossard, Legal Aid Services

9:50-10:05 BREAK

10:05-10:55 “What Practitioners Need to Know About Veterans Law” Nichole Harden and Lauren Truitt, Legal Aid Services

10:55 - 11:10 BREAK

11:10 – 12:00 “Beyond Basic Landlord-Tenant Law: Understanding Federally Subsidized, Public Housing and HUD” Kimberly Moore-Waite and Eric Hallett, Legal Aid Services

12.00 – 1:00 LUNCH (on your own)

1:00 – 1:50 “Bankruptcy Law for Family Law Attorneys” Victor Hunt, Legal Aid Services

1:50 – 2:00 BREAK

2:00 – 2:50 “Hot Topics in Child Support” Amy Page, Child Support Enforcement Division, Department of Human Services

2:50-3:00 BREAK

3:00 – 4:00 “What I Should Have Known Before I Appeared Before the Bench” Judges David Smith (Special Judge, Rogers County), Stephen R. Clark (Special Judge, Tulsa County), and Theresa Dreiling (Special Judge, Tulsa County) - Moderated by Julie Goree, Legal Aid Services

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 789 County Bar Association Activities

H Beaver County Bar Association conjunction with the statewide program to The Beaver County Bar Association will answer questions by phone from 7-8 p.m. participate in the Ask A Lawyer program in H Cleveland County Bar Association conjunction with the statewide program to The Cleveland County Bar Association will answer questions by phone from 7-8 p.m. make presentations regarding topics related to H Blaine County Bar Association the constitution and the importance of juries to Blaine County Bar Association will celebrate all local schools who request same. The associa- Law Day with Judge Moore and local attor- tion is selling T-shirts with the Law Day theme neys making presentations at county schools as a design and will host a mock trial. The about Law Day, the legal profession and the association will also participate in the Ask A importance of juries and serving on them. The Lawyer event in coordination with the Oklaho- Blaine County drug court will also join in cel- ma Bar Association. This will be on April 28 ebrating Law Day by having an essay and from 6:30-8 p.m. poster contest centered around the Law Day H Comanche County Bar Association theme “Judges, Juries and Justice: The Consti- The Comanche County Bar Association will tution and the Rights of the Accused.” hold its Annual Law Day Luncheon May 4 at H Canadian County Bar Association 11 a.m at the Hilton Garden Inn and Conven- The Canadian County Bar Association will tion Center. The keynote speaker will be participate in the Ask A Lawyer event in coor- Southern Methodist University School of Law dination with the Oklahoma Bar Association Professor Joshua Tate, who will be speaking from 6-8 p.m. They will also hold a coloring about the role of grand juries and the rights of competition for first-grade students on “What the accused. Cost will be $25 per person. does the USA mean to you?” They will also host an Ask A Lawyer event H Carter County Bar Association from 6-8 p.m. on May 4 where members of the Comanche County Bar Association will be The Carter County Bar Association will answering legal questions. Anybody who participate in the Ask A Lawyer program in wishes to ask an attorney about a legal issue conjunction with the statewide program to should call 580-248-4675. answer questions by phone from 7-8 p.m. On May 6, the Comanche County Bar Asso- H Choctaw County Bar Association ciation will host their annual Comanche On the evening of April 30, the Choctaw County Bar Association Golf Tournament at County Bar Association will host a Law Day the Lawton Country Club. For more informa- Banquet in conjunction with the McCurtain tion about the golf tournament, please contact and Pushmataha County Bar Associations. Monty Hightower at 580-355-8920, who is the The guest speaker for the banquet will be chairman of the golf tournament. Oklahoma Court of Criminal Appeals Presid- H Craig County Bar Association ing Judge Clancy Smith. The Craig County Bar Association will H Cimarron County Bar Association participate in the Ask A Lawyer program in The Cimarron County Bar Association will conjunction with the statewide program to partner with the Texas County Bar Association answer questions by phone from 6-8 p.m. to participate in the Ask A Lawyer program in

790 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 H Custer County Bar Association H Latimer County Bar Association The Custer County Bar Association hosted a The Latimer County Bar Association is part- Law Day dinner at Lucille’s Roadhouse on nering with the Pittsburg County Bar Associa- April 13. Tenth Circuit Judge Jerome Holmes tion to host Ask A Lawyer on Wednesday, was the featured speaker. April 27, between 6-9 p.m. at Pat Layden Law H Delaware County Bar Association Firm. They are also participating in the Law Day Banquet being held at Pete’s Place in The Delaware County Bar Association Krebs with Administrative Director of the will partner with the Ottawa County Bar Courts Jari Askins as the featured speaker. Association to participate in the Ask A Law- There will also be a golf tournament for mem- yer program in conjunction with the statewide bers of our local Southeastern Oklahoma Coun- program to answer questions by phone from ty Bar Associations beginning at 1 p.m. Satur- 7-8 p.m. day, April 29, at the McAlester Country Club. H Garfield County Bar Association Also, on Friday, April 22, between 3-4:30 p.m., The Garfield County Bar Association has the district attorney’s office located in the Lat- many activities planned for the 2016 celebra- imer County Courthouse will be open to the tion of Law Day and will keep its members public to answer any questions concerning our active throughout the day. The day will begin local county government or justice system as it with Lawyers in the Classroom, where law- pertains to Southeastern Oklahoma. yers from the GCBA will speak to middle H school students throughout Garfield County LeFlore County Bar Association about various legal topics. The members of the On April 28 at 7 p.m., the LeFlore County GCBA will also announce the winners for the Bar Association will participate in the Ask A Law Day coloring and art contests on this day. Lawyer program in conjunction with the state- The coloring and art contests feature many stu- wide campaign to answer legal questions by dents throughout Garfield County, and will be phone from 7-8 p.m. judged by the Garfield County district judges. The GCBA will also be participating in the Ask The next event will occur on May 5 and will A Lawyer program, in conjunction with the be a courthouse tour for fifth-grade students statewide campaign to answer legal questions attending schools in LeFlore County. In con- by phone from 6-8 p.m. junction with the courthouse tour, Judge Fry will preside over mock trials wherein the stu- H Grant County Bar Association dents will participate as jurors and also as the The Grant County Bar Association will attorneys. Members of the bar will be witnesses participate in the Ask A Lawyer program in and help the students with their parts in the conjunction with the statewide program to Mock Trials. At the conclusion, members of answer questions by phone from 7-8 p.m. the bar will answer questions about the legal H Jackson County Bar Association system. Highway patrol officers and sheriff’s deputies will also be present to allow the chil- The Jackson County Bar Association will dren to look through their patrol vehicles. participate in the Ask A Lawyer program in conjunction with the statewide program to H Lincoln County Bar Association answer questions by phone from 7-8 p.m. The Lincoln County Bar Association will H Johnston County Bar Association host its annual Law Day Picnic on May 6 at 6 p.m. at the Chandler Senior Citizens Center. The Johnston County Bar Association will host an essay contest for third-grade students H McClain County Bar Association on “What the Constitution means to me.” Four The McClain County Bar Association will winners will be selected and awarded $50. participate in the Ask A Lawyer program H Kay County Bar Association in conjunction with the statewide effort to answer questions by phone from 5-8 p.m. To celebrate Law Day, the Kay County Bar Also being planned is an essay contest for Association will host “Cookout at the Court- 11th and 12th graders. house” and will be grilling and serving food to the public, as well as court staff, on April 28.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 791 H McCurtain County Bar Association The Ask A Lawyer Program will take place On the evening of April 30, the McCurtain on Thursday, April 28, at the OETA Studios County Bar Association will host a Law Day from 9 a.m. to 9 p.m. This community service Banquet in conjunction with the Choctaw and event allows attorneys to assist the public Pushmataha County Bar Associations. The through free legal advice over the telephone guest speaker for the banquet will be Oklaho- or online. To sign up for this event, go to the ma Court of Criminal Appeals Presiding website at www.okcbar.org or call Connie Judge Clancy Smith. Additionally, that morn- Resar at 405-236-8421. ing, the bar will host an Ask A Lawyer radio H Ottawa County Bar Association show with a local radio station. The public The Ottawa County Bar Association will part- will have the opportunity to call and ask legal ner with the Delaware County Bar Association questions that will be broadcasted live. Mem- to participate in the Ask A Lawyer program in bers of the bar will also speak to schools conjunction with the statewide program to throughout the county about Law Day. answer questions by phone from 7-8 p.m. H Muskogee County Bar Association H Payne County Bar Association The Muskogee County Bar Association will • Lawyers in the Library have a banquet on April 28 in celebration of A pro bono legal advice clinic organized by Law Day and will honor its members of 50 the PCBA will be held at the Stillwater Public years or more by distributing their 50-year Library on April 29 from 8 a.m. until noon. pins. Additionally, a “Lawyers in the Class- This clinic will be staffed by members of the room” event will take place throughout the PCBA who will give consultations to commu- month with lawyers speaking about legal nity members on a walk-in basis. Additionally, careers to both local high schools and middle PCBA will participate in the Ask A Lawyer schools, Hilldale Public, Muskogee Public program in conjunction with the statewide and St. Joseph Catholic School. campaign to answer legal questions by phone H Noble County Bar Association from 7-8 p.m. on April 28. The Noble County Bar Association will • Law Day Banquet participate in the Ask A Lawyer program in A banquet for PCBA members and honored conjunction with the statewide program to guests will be held at The Ranchers Club answer questions by phone from 6-8 p.m. inside OSU’s Atherton Hotel on May 2. The on April 28. featured speaker will be Oklahoma Supreme H Okfuskee County Bar Association Court Vice Chief Justice Douglas Combs on the importance of an independent judiciary. The Okfuskee County Bar Association will participate in the Ask A Lawyer program in • Bowling Tournament conjunction with the statewide program to The PCBA will host a bowling tournament answer questions by phone from 7-8 p.m. at Frontier Lanes on May 3 to benefit Legal on April 28. Aid Services. H Oklahoma County Bar Association • Courthouse Appreciation-Lunch on the Lawn The Oklahoma County Bar Association will An appreciation lunch will be hosted by the host the 2016 Law Day luncheon which takes PCBA on May 4 for the many people who place on Friday, April 29, at 12 p.m. in the work in the courthouse. Local attorney James Skirvin Grand Ballroom. The featured speaker Murray will prepare a barbeque lunch on the this year will be Judge Timothy D. DeGiusti. courthouse lawn and bar members will be on The Journal Record Award, Leadership in Law hand to serve food to everyone who works in Awards, Liberty Bell Award and the Howard the courthouse, including judges, bailiffs, the K. Berry Sr. Award will be presented at the district attorney, court clerk, the sheriff’s luncheon. Tickets are $35 each, with tables of department and all related staff members. 10 available for $350. You may purchase tick- • Honor Docket ets by going to www.okcbar.org or calling the bar office at 405-236-8421. The PCBA will hold an Honor Docket on May 5. This docket will allow local attorneys to present awards and prizes to the winners of

792 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 the youth art and essay contests. The Hert ma Court of Criminal Appeals Presiding Scholarship will be presented to an outstand- Judge Clancy Smith. They will also participate ing high school senior to assist with college in the Ask A Lawyer program in conjunction and the Liberty Bell Award will be given to a with the statewide program to answer ques- member of the community for outstanding civic tions by phone from 6-8:30 p.m. One lawyer leadership. Additionally, three members will will speak to a civics class at Antlers Public receive pins honoring their 50 years of service Schools about the legal profession. in the legal profession, Charles Drake, J. Stew- H Seminole County Bar Association art Arthurs and Joe Wiley Fowler. They will be briefly recognized at the Honor Docket and As its birthplace, Law Day has always been then the PCBA will host a gala to allow their special in Seminole County, and this year will colleagues, family and friends to celebrate their be no different. Below is a summary of the half-century dedication to the legal profession. many activities that will take place this year. • Art and Essay Contests • School Presentations The PCBA will host a coloring contest for To open the Law Week celebrations, Semi- the county’s first and second graders, a free- nole County’s young lawyers will speak to form art contest for the county’s third through county junior high school students about the fifth graders and an essay contest for high legal profession and the rights of the accused in school students. Winners will receive cash conjunction with this year’s theme. Every prizes and will be presented their awards at junior high school in the county will host a pre- the Law Day Honor Docket on May 5. sentation by one of our young lawyers. • Courthouse and Jail Tours • Essay Contests A class of seventh graders at the Stillwater The association will host two essay contests Middle School will receive tours of the Payne open to all county junior high school students County Jail and Courthouse on May 6. These and all county high school seniors who plan tours will include presentations by a judge, on attending Seminole State College. The assistant district attorney and the court clerk. association will award a $500 scholarship to The students will also watch a drug dog dem- Seminole State College to the winning senior onstration by the Payne County Sheriff’s essay contestant and a gift certificate to the Department. winning junior high school essay contestant. H Pittsburg County Bar Association • Law Day CLE – April 27, Seminole County Courthouse The Pittsburg County Bar Association will speak to the eighth-grade class at Frink- The association will hold its annual Law Chambers Public School and two other Day activities on April 27. There will be CLE schools about the legal profession. They will beginning at 8:30 a.m. in the Seminole County partner with the Pittsburg County Bar Associ- Courthouse in Wewoka. Speakers include ation to host Ask A Lawyer on Wednesday, Oklahoma Supreme Court Chief Justice John April 27, between 6-9 p.m. at Pat Layden Law Reif and David Moran, co-founder of the Firm. They are also participating in the Law Michigan Innocence Clinic. Day Banquet being held at Pete’s Place in Krebs • Law Day Luncheon – April 27, with Administrative Director of the Courts Jari Rudolph Hargrave Community Center Askins as the featured speaker. There will also be a golf tournament for members of the local At noon, a Law Day luncheon will be held Southeastern Oklahoma County Bar Associa- at the Rudolph Hargrave Community Center. tions beginning at 1 p.m. Saturday, April 29, Supreme Court justices are expected to attend. at the McAlester Country Club. OBA President Garvin Isaacs will be the featured speaker. The association will also recog- H Pushmataha County Bar Association nize Seminole County attorney Bill Huser for On the evening of April 30, the Pushmataha his 50 years as a member of the bar and attor- County Bar Association will host a Law Day ney David Moran. Banquet in conjunction with the Choctaw and McCurtain County Bar Associations. The guest speaker for the banquet will be Oklaho-

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 793 • Ask A Lawyer – April 28 OETA Studio in Tulsa. A naturalization cere- The Seminole County Bar Association will mony was held on Wednesday, April 13, at the also participate in the Ask A Lawyer program Page Belcher Federal Courthouse. The TCBA in conjunction with the statewide campaign to student art and poetry contest is underway answer legal questions by phone. Local attor- and judging was held April 13 and the cere- neys will be handling phone calls from 7-8 p.m. mony for our winners will be held on May 3. During the months of April and May, mem- H Sequoyah County Bar Association bers of the bar will participate in Civics in the The Sequoyah County Bar Association will Classroom. Members also participated in the participate in the Ask A Lawyer program in Logos Oklahoma-Homeschool Speech and conjunction with the statewide effort to Debate Club-Green Country Challenge Speech answer questions by phone from 6-8 p.m. and Debate Tournament held March 2-5 at Friendship Baptist Church in Owasso. Mock tri- H Stephens County Bar Association als will be held at Thoreau and Owasso High The Stephens County Bar Association will School and a Goldilocks and the Three Bears mock host its annual Law Day luncheon on April 29 trial with elementary-aged students. at noon at the Duncan Golf and Tennis Club. H Wagoner County Bar Association The guest speaker will be OBA President Garvin Isaacs. The annual James Patterson The Wagoner County Bar Association will Memorial Golf Tournament will follow the participate in the Ask A Lawyer program in luncheon at 2 p.m. at the Territory Golf and conjunction with the statewide effort to Country Club. answer questions by phone from 6-8 p.m. H Texas County Bar Association H Washington County Bar Association The Texas County Bar Association will In celebration of Law Day 2016, the partner with the Cimarron County Bar As- Washington County Bar Association will be sociation to participate in the Ask A Lawyer sponsoring the Ask A Lawyer program to pro- program in conjunction with the statewide vide free legal advice to the community on program to answer questions by phone from Thursday, April 28, between 6:30-8:30 p.m. In 7-8 p.m. recognition of this year’s Law Day theme, “Judges, Juries and Justice, the Constitution H Tulsa County Bar Association and the Rights of the Accused,” WCBA mem- The Tulsa County Bar Association Law Day bers have offered to speak to area high school luncheon will be held on Friday, April 29, at government and history classes about the Law the Hyatt Regency in downtown Tulsa. The Day theme and the basic rights and responsi- speaker this year is Laura Nirider, who is fea- bilities of becoming a legal adult. The WCBA tured on the Netflix series Making a Murderer. also hopes to sponsor its annual Law Day golf Ms. Nirider is the post-conviction appellate tournament at the Hillcrest Country Club, attorney for Brendan Dassey. She is a profes- participation and weather permitting. sor at Northwestern in Chicago and works H Woodward County Bar Association with the Center for Wrongful Convictions of Youth. The event is already sold to at least 50 In Woodward County, experienced local percent capacity, and ticket sales will soon attorneys will be available to answer ques- open to the general public. Given her notori- tions regarding criminal law, divorce law and ety, a reception will also be held for her on other areas on Thursday, April 28, from 6:30- Thursday, April 28. She will participate in a 8 p.m. at 580-254-9181, corresponding with the meet-and-greet and a Q&A. Anyone who pur- OBA’s annual Ask A Lawyer TV show on OETA. chases a ticket to the luncheon will be invited The following day, Friday, April 29, local attor- to the reception. Those not attending the lun- neys will speak to the students of Woodward cheon will be allowed to purchase a ticket for High School about the criminal process and the reception. An immigration clinic will be what it means to be charged with a crime, how held on April 30 at Redemptive Word Church to file for divorce, the process of probate after in the Tulsa area. Bar members will also staff a the death of a loved one, the pros and cons of phone bank from 9 a.m. to 9 p.m. as part of filing for bankruptcy and more. the Ask A Lawyer event on April 28 at the

794 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 795 Oklahoma Supreme Court Chief Justice John Reif (seated) signs the Law Day Directive before presenting awards to contest winners during the annual ceremony at the state Capitol. Witnessing were (from left) OBA Law Day Committee Co-Chair Richard Vreeland and OBA Execu- tive Director John Morris Williams.

796 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 797 SCHOLARLY ARTICLE

When the Deal’s Too Good: Protecting Nonprofessional Mineral Owners in Oklahoma By Brian J. Stanley

n Oklahoma, buying minerals and acquiring leasehold is big business. And many, if not most, of the buying and leasing Itransactions concern an oil and gas professional on the mineral buying or lease acquisition side and a nonprofessional on the selling or lease-granting side. It would seem this asymmetry of knowledge in numerous transactions over the last century or so would produce a large number of instances in which the nonprofessional alleges he or she has been taken advantage of by the professional. But the dearth of published cases in Oklahoma alleging misrepresentation, fraud or similar causes of action against professionals indicates otherwise,1 though we can only speculate as to whether that dearth of cases indicates the professionals’ probity, the nonprofessionals’ hesitance to litigate, the nonprofessionals’ familiarity with leasing and selling minerals, Oklahoma’s spacing and pooling statutes or other causes.

But the published cases, though relatively Croslin, who died in 1994, was listed as an few, are numerous enough and sufficiently unknown or unlocated mineral owner in the consistent in their reasoning and holdings to pooling. The pooling applicant completed a offer some guidance as to how Oklahoma producing well in the pooled unit. courts will address alleged overreaching by In 2008, the defendant contacted the plain- professionals.2 And the most recent case in this tiffs and made an unsolicited offer to buy the area, Croslin v. Enerlex, Inc.,3 provided a thorough plaintiffs’ mineral interests for a total of $1,350 review of the pertinent cases and therefore for each plaintiff. The defendant did not tell the serves as an excellent vehicle through which to plaintiffs, though the defendant knew, that the analyze Oklahoma law on the subject.4 state of Oklahoma held for the benefit of the In Croslin, three siblings, the plaintiffs, inher- heirs, successors and assigns of W.M. Croslin, ited a four-acre mineral interest in Seminole deceased, a sum of $9,961.71, this being the $75 County. They did not realize that, in July of per acre bonus and proceeds from the one- 2000, their mineral interest was subject to a eighth royalty due to W.M. Croslin under the forced pooling order, and their father, W.M. pooling order.

798 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 In the offer letter to the plaintiffs, the defen- deference to the trial court’s finding.15, 16 But the dant wrote, “we believe you own a mineral granting of the rescission claim was an equita- interest” in the subject tract, adding that the ble matter, and the Supreme Court said an defendant would pay the plaintiffs the sales appeals court will not reverse an equitable proceeds “upon completion of the title exami- finding by a lower court “unless it is clearly nation.”5 And, as the court noted, “In making against the weight of the evidence.”17, 18 the offer, the defendant did not disclose…the Turning to the substantive issues, the court existence of the pooling order or the accrued noted that “fraud is a generic term embracing mineral proceeds held by the State Treasurer.”6 the multifarious means which human ingenu- The court also pointed out the mineral deed, ity can devise so one can get advantage over prepared by the defendant, included language another by false suggestion or suppression of saying that grantors were conveying their min- the truth.”19 (citations omitted). And because eral interests and their respective interests “in fraud is a question of fact, “When fraud is and to all royalties, accruals and other bene- alleged, every fact or circumstance from which fits, if any, from Oil and Gas heretofore or a legal inference of fraud may be drawn is hereafter run….”7 (bold in original). The court admissible,” it added.20 (citations omitted). later examined the “if any” wording closely Further, the court said, “Constructive fraud has and did not care for it in the least. the same legal consequences as actual fraud.”21 Soon after executing the deeds to the defen- (citations omitted). When the court reviewed dant, the plaintiffs discovered the state held for the facts, it determined the defendant’s actions them the almost $10,000 in proceeds from the did, when taken in the context of the situation, mineral interest that they had just sold for amount to constructive fraud,22 and it granted about $4,100. They filed suit in 2009 contend- rescission and a cancellation of the mineral ing that the “defendant had a duty to inform deeds. them of the pooling order, the accrued mineral The court focused much attention, and much proceeds and the production; that defendant’s criticism, on the “if any” qualification in the failure to inform them constituted constructive mineral deeds noted above. Finding the plain- fraud;8 and that defendant’s deceitful and tiffs had “relied, to their detriment, on the false fraudulent actions amount to fraud and justi- impression created by the ‘if any’ language [,]” fies rescission, consequential damages, actual the court concluded that the “’if any’ lan- damages, and punitive damages.”9 guage…discouraged, rather than encouraged, The trial court granted the plaintiffs summa- the plaintiffs to make an independent investi- ry judgment on most of the issues, relying gation into the mineral interest.”23 And though largely on Deardorf v. Rosenbush10 and Uptegraft normally one not in a position of confidence v. Dome Petroleum Corp.11 It also found that “the and trust has no duty to speak, there are situa- unclaimed property statutes and regulations tions in which partial disclosure creates a duty. place additional notice requirements upon one As the court put it, the “if any” clause “gave who claims funds in the Mineral Owners rise to a duty on the part of the defendant to Escrow Fund based upon the transfer of a min- disclose the whole truth, including all material eral interest.”12 The Court of Civil Appeals facts about the accrual of the mineral pro- reversed the trial court’s summary judgment, ceeds.”24 (emphasis added). Citing Deardorf, the “finding that the defendant made no factual court explained that “where defendant is under inducement, representation or misrepresenta- a duty to say nothing or to tell the whole truth, tion that gave rise to a duty to disclose the defendant’s duty to tell the whole truth may pooled interest or production and that defen- arise from partial disclosure” because the con- dant had no duty to disclose the pooled min- cealment of some material facts is “in effect a eral and accrued proceeds to the plaintiffs false representation that what is disclosed is under the unclaimed property statutes or the the whole truth.”25 pooled mineral interest statutes.”13, 14 The court also determined that the statutes The Supreme Court began its opinion by relating to the state’s holding of unclaimed explaining the standard of review applicable, property and forced pooled mineral interests saying that because the trial court’s finding as (see footnote 4) reflected a public policy26 to to the defendant’s duty to disclose the pro- protect the owners of the proceeds and the ceeds was a legal finding, the Supreme Court owners of unclaimed property. And, the court reviewed the legal finding de novo, with no wrote, “The false impression created by the ‘if

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 799 any’ language in defendant’s mineral deed money on a full title check unless and until a cannot be ignored in light of this strong statu- mineral owner agrees to sell. But here again, in tory policy.”27 (footnote omitted). the given context, this standard wording could have served to mislead the plaintiffs, making The essence of the court’s opinion is that the them think the buyers had done little investi- defendant had a duty to disclose to the plaintiff gation of their ownership. At least, a finder of mineral owners the existence of the proceeds fact could reasonably have determined, consid- held for them, because the plaintiffs were not ering all the circumstances that the wording oil and gas professionals and therefore not contributed to misleading the plaintiffs. expected to know to check whether the subject property was producing (or perhaps had wells Even without the “if any” language, it’s nearby). The court never specifically said this likely the plaintiffs would have prevailed in was a case of a professional taking advantage this case given the holding in Deardorf, supra, of a nonprofessional, but that is what the case which the plaintiffs and the court relied on for was about. As the court said in restating the good reason in Croslin. plaintiffs’ first proposition in support of their In Deardorf, the plaintiff was a woman who summary judgment at trial court, “plaintiffs was a long-time employee of the Smithsonian argued that the letter and the ‘bonus assign- Institute in Washington, D.C., “and was with- ment’ language in the mineral deed expressed out knowledge of the oil busi- a scheme to capitalize on their ness.”29 (bold added). In 1934, she ignorance…”28 (bold added). The had purchased a one-acre mineral court also noted, in footnote four interest in Oklahoma County for of its opinion, that the plaintiffs, in It’s worth $350. About 10 years later, the 2008, were ages 69, 70 and 77. The defendant wrote the plaintiff and ages of the plaintiffs would prob- noting that the said he “was attempting to clear ably be of little significance if they up the title” to the plaintiff’s tract were all oil and gas professionals. ‘if any’ language for a client, and that this client It’s worth noting that the “if referring to “had authorized the writer [defen- any” language referring to pro- production dant] to pay to the addressee duction proceeds in mineral deeds [plaintiff] the sum of $10.00 for a is not uncommon. It can some- proceeds in quitclaim deed to the one acre times even be viewed as protec- mineral interest.”30 The plaintiff, tion for the seller, as without the mineral deeds 79 at the time, expressed regret at clause it’s possible the buyer could is not selling the interest for so little but contend that the unqualified did so. Unbeknownst to the plain- wording transferring proceeds uncommon. tiff, during her negotiations with demonstrates that proceeds exist, the defendant “there was upon the even if there are no proceeds. But premises one producing well, and here, the court properly determined this com- two others were being drilled.”31 mon language was in fact misleading to mineral The defendants32 “contend ‘that they said owners not familiar with oil and gas transac- nothing to mislead her and that she made the tions. Further, the statement in the offer letter sale of her own free will and accord in an arm’s that “we believe you own” and the statement length transaction[,]’” the court wrote, quoting that the defendant would pay the owner after the defendants’ brief. But the court, with rea- verifying title all served, when taken in con- soning that would return in Croslin 64 years text, to cause the plaintiffs to believe that the later, refused to accept the defendants’ argu- defendant knew little about the plaintiffs’ ment, writing, “In the opinion of this court, to interests. And yet, as with the “if any” lan- confirm as true another’s false impression con- guage in mineral deeds, such statements are cerning a material fact is no less a false repre- very common in offer letters. Often would-be sentation of such a fact than if made directly in buyers first do a cursory title check to come up order to create the false impression. The fact with names of possible owners, and they send that there was production was the moving out offer letters based on this incomplete infor- cause of defendant’s [the court referred to only mation, not knowing for certain whether or one defendant here] seeking the conveyance.”33 what interest the possible owners own. The would-be buyer doesn’t spend the time and

800 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Then the court continued, addressing the producing or drilling wells on or near her land, plaintiff’s lack of knowledge: “The absence of the defendants are experienced in oil and gas plaintiff’s knowledge of the production was or at least in business and do know of such relied on as an inducement to plaintiff’s exe- wells and the defendants fail to tell the mineral cuting the conveyance for a nominal consider- owner about the wells and then buy the miner- ation[,]” it wrote, continuing: “There is no need als for far below market value. to weigh the value of each of the several state- In this case, the defendants also hurriedly ments in the letter when it is manifest that the completed the transaction because they feared letter as a whole is expressive of a scheme to a certain niece of the plaintiff would warn her capitalize on the ignorance of another.”34 (bold not to sell at the offered price. And, in fact, the added). The court never addressed whether niece did warn the plaintiff, but the deal was the plaintiff was to any extent responsible for already completed. The niece, whose husband allowing herself to remain lacking in knowl- was a banker and experienced businessman, edge, so we can assume the court did not con- visited the plaintiff one day while the defen- sider that to be the case. dants were negotiating with the plaintiff. Fear- As the Croslin court did, the Deardorf court ing the niece would ask her husband about the looked to Berry v. Stevens35 quoting that opinion transaction, the defendants, unable to get their as follows: “Though one may be under no duty attorney to prepare a contract quickly enough, to speak, if he undertakes to do so, he must tell hastily drafted an agreement and asked the the truth, and not suppress facts within his plaintiff to sign it. The plaintiff did sign it but, knowledge or materially qualify those stated.”36 as the court noted, “Plaintiff’s testimony was to the effect that she thought she was signing The court then found that such a duty to as a witness and did not intend the instrument divulge all the material facts, not selected ones, to be a deed to the land.”42 arose “when defendant began the negotiations. And on disclosing in part the pertinent facts The trial court heard several experts as to the such duty would be breached by withholding market value of the property, and all put the other pertinent truths.”37 value well above the price the plaintiff received from the defendants, primarily because of the After Deardorf and before Croslin, the court existence of the nearby well and drilling activ- dealt with another case in which professional ity. And the court, affirming the decision of the buyers took advantage of a nonprofessional trial court, found: “Under all of the evidence, it mineral owner. And again the court held for is conclusive that the defendants intended to the mineral owner. and did overreach the plaintiff.” And, the court In Hubbard v. Bryson,38 the plaintiff was at the added, “if on account of peculiar circumstanc- time of the subject transaction a 76-year-old es there is a positive duty on the part of one of widow who, “a year previous to the execution the parties to a contract to speak and he of the agreement…had fallen and broken her remains silent to his benefit and to the detri- hip and four operations had been performed ment of the other party, the failure to speak on her…” Further, the subject land was the constitutes fraud.”43 In this case, the finding only land that the plaintiff owned, and she was fraud, not constructive fraud. But, “Con- “knew nothing about land and had never structive fraud has the same legal consequenc- bought or sold any land or oil and gas inter- es as actual fraud.”44 ests…”39 The defendants in the case, the court The mineral owners don’t always win, how- said, “were men of business experience…”40 ever, as we see in Silk v. Phillips Petroleum Com- The plaintiff, the court found, “had not been pany.45 But this case concerned a lease transac- to the land in about a year and did not know tion, not a sale. anything about any gas wells being near the In Silk, a landman for a broker working for farm nor did not know about the completed defendant Phillips contacted the plaintiff, Silk, gas wells in nearby sections…, and […] defen- by going to the grocery store where the plain- dants never informed her of any gas wells tiff worked. After a brief discussion of the although the defendants knew, at least, that bonus, royalty and general terms, the plaintiff there were some derricks near the land.”41 agreed to sign an oil and gas lease, and the So again, we have the pattern: a nonprofes- landman left. A few days later, the landman sional mineral owner does not know about returned to the grocery store with the lease.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 801 The plaintiff signed the lease and also signed ations involving nonprofessional mineral own- an attachment to the lease that contained an ers, even common, almost boilerplate language option allowing the lessee to lease the interest in an offer letter or deed can be misleading again at the end of the primary term for an enough, at least when combined with other additional two years on the same terms.46 peculiar circumstances, to contribute to the existence of constructive fraud. A few years later, the plaintiff discovered she was subject to the option and filed suit, asking Might we also infer from these cases — many for equitable rescission, damages for fraudu- more of which deal with nonprofessional sell- lent inducement and punitive damages. At ers than nonprofessional lessors — that the trial, the “jury returned a verdict awarding Silk court views overreaching in sales transactions $18,092 in actual damages and $3,761,798 in differently than in leasing transactions? Proba- punitive damages.”47 The trial court held that bly not. The sample size is just too small, and the damages compensated the plaintiff and more importantly the court has made no state- denied rescission.48 ments to that effect. Further, there is no legal or The Supreme Court reversed the verdict for logical reason to draw a bright line between the plaintiff and upheld the trial court’s denial sales and leases. The issue in both situations is of rescission. The court wrote, “Silk, a literate whether the buyer or lessee has taken advantage adult, had previously executed oil and gas of the mineral owner’s excusable ignorance by leases, and was generally familiar with their failing to disclose material information that terms. The parties were involved in an arms- should be disclosed under the circumstances or length business transaction; a confidential or by actively misleading the owner. Taking unfair fiduciary relationship is not alleged, though advantage of a nonprofessional lessor is no less deserving of judicial opprobrium than is taking we recognize that the duty to disclose does not 53 always depend upon the establishment of such unfair advantage of a nonprofessional seller. 49 relationship.” 1. There are numerous cases dealing with alleged breach of lease covenants or conditions or implied covenants; but the focus of this In short, it appears the court simply did not paper is on alleged misrepresentation or unfair tactics in the acquisi- believe the plaintiff had been duped. It contin- tion of minerals or leasehold by professionals, the kind of wrongdoing that goes to the validity of the transaction itself and often leads to ued, “We would also point out that the plainly claims for rescission. captioned option to renew clause was sepa- 2. For the noncontroversial proposition that that courts will hold rately signed, making it difficult for the signing professionals to a higher standard of knowledge, competence and duty to investigate, see, inter alia, Jewell v. Allen, 109 P.2d 235 (Okl., 1940). lessor to be unaware of the rider — whether or 3. 308 P.3d 1041 (Okl., 2013) not it was attached to the printed oil and gas 4. Croslin had a companion case, Widner v. Enerlex, Inc., 313 P.3d 930 50 (Okl., 2013); but the issues and holdings are the same as in Croslin, so lease.” So the case turned on the basic rule, this paper will focus only on Croslin for the sake of brevity. stated by the court that, “Although inconsis- 5. 308 P.3d, at 1043. 6. Id. tent with the alleged prior oral contract, the 7. 308 P.3d, at 1044 written contract must govern unless its execu- 8. 15 O.S.A. §59. tion was procured by fraud.”51 Finding no 9. 308 P.3d, at 1044. 10. 206 P.2d 996 (Okl., 1949). fraud, the court’s decision was simple: the 11. 764 P.2d 1350 (Okl., 1988). writing governs. 12. 308 P.3d, at 1044. 13. 308 P.3d, at 1044. CONCLUSION 14. The statutes referred to were created by three acts: the Unclaimed Pooled Monies Act, 52 O.S.A. §551 et seq.; the Uniform Disposition of Unclaimed Property Act, 60 O.S.A. §651 et seq.; and the What can we take away from this brief 1984 amendments to the Uniform Act, 60 O.S.A. §§658.2-658.8. See 52 review of cases and the cases cited therein? Croslin, 308 P.3d, at 1049. It’s certainly clear that a professional mineral 15. 308 P.3d, at 1045. 16. Citing D-Mil Production, Inc. v. DKMT, Co., 260 P.3d 1262 (Okl., buyer dealing with a nonprofessional mineral 2011). owner better disclose to the owner any produc- 17. Id. 18. Citing Smith v. Marshall Oil Corp., 85 P/3d 830 (Okl., 2004). tion proceeds held for the owner and any drill- 19. Id. ing or newly completed wells on or near the 20. Id. 21. 308 P.3d, at 1046. owner’s property (whatever “newly complet- 22. See court’s conclusion, 308 P.3d, at 1052. ed” and “near” mean under the applicable cir- 23. 308 P.3d, at 1051. cumstances). We also see that the court won’t 24. Id. 25. Id. rescue a literate, competent mineral owner 26. See TXO Production Corporation v. Okla. Corp. Comm’n, 829 P.2d who fails to read an oil and gas lease (and an 964 (Okl., 1992). 27. 308 P.3d, at 1052. incorporated attachment) before signing it. 28. 308 P.3d, at 1051. And the Croslin case shows that in certain situ- 29. 206 P.2d, at 997.

802 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 30. Id. 31. 206 P.2d, at 997. FROM THE PRESIDENT 32. The immediate grantee of the mineral deed from plaintiff was also a defendant. The mineral buyer was not himself the grantee. cont’d from page 764 33. 206 P.2d, at 998. 34. Id. 35. 31 P.2d 950 (Okl., 1934). In the American colonies, the ruling of Bush- 36. Id., quoting Stevens, 31 P.2d, at 951. 37. 206 P.2d, at 998. el’s Case was celebrated as a magnificent event 38. 474 P.2d 407 (Okl., 1970). in the history of mankind because it firmly estab- 39. 474 P.2d, at 408. lished trial by jury as an institution to protect 40. Id. 41. Id. people from abusive government officials, pow- 42. Id. erful political influence and renegade unfair 43. 474 P.2d, at 410, citing Morris v. McLendon, 27 P.2d 811 (Okla., judges controlled by the king, politics and ambi- 1933), and Barry v. Orahood, 132 P.2d 645 (Okl., 1942). 44. Croslin, P.308P.3d, at 1046, citing Faulkenberry v. Kansas City tion, rather than the rule of law. Southern Ry. Co., 602 P.2d 203 (Okla., 1979), at 206. 45. 760 P.2d 174 (Okl., 1988). And so it was in colonial days of America that 46. 760 P.2d, at 177-78. trial by jury became a part of our country’s his- 47. 760 P.2d, at 175. 48. Id. tory as a protection of the people. William Penn 49. 760 P.2d, at 179, citing Barry v. Orahood, 132 P.2d 645 (Okl., 1962). came to America, and he brought with him the 50. Id. history of his trial and Bushel’s Case. 51. 760 P.2d, at 178, citing Mitchell v. Kimbrough, 491 P.2d 289 (Okl., 1971). 52. See especially Uptegraft, supra, at note 11 (Involved oil and gas It was in this historical environment that all 13 professionals but shows that circumstances can create duties to dis- American colonies guaranteed the right to trial close even to professionals.); Barry, supra, at note 43 (Mineral buyer by jury in civil cases as well as criminal cases. improperly failed to disclose drilling activity to temporarily mentally incapacitated mineral owner, and buyer paid inadequate compensa- The American civil jury system is as close to a tion. Deed was rescinded.); Berry, supra, at note 35 (Mineral buyers improperly failed to disclose new well near tract sold by mineral perfect democracy as any government has ever owner and deed was rescinded; but here one of the buyers was a real come to be. We must join together and fight to estate agent for the seller and owed a heightened duty to seller.); and Varn v. Maloney, 516 P.2d 1328 (Okl., 1973) (Promoter of waterflood keep the American civil jury system. deal provided false and misleading information to investors, who relied reasonably and to their detriment on the information. This case Our Founding Fathers fought for the system of does not involve a professional mineral buyer or lessee and a non- trial by jury in both civil and criminal cases. professional mineral owner but does provide useful analysis of disclosure duties in oil and gas transactions.). Alexander Hamilton said, “The excellence of 53. For an excellent overview of issues related to wrongdoing in obtaining leases around the country, see Hall, “Fraud, Misrepresenta- the trial by jury in civil cases, appears to depend tion, and Related Ethical Issues in Obtaining Leases,” 58 RMMLF-Inst. on circumstances foreign to the preservation of 27-1 (2012)(Rocky Mountain Mineral Law Institute); and for a look at liberty. The strongest argument in its favour is, unconscionability as a possible issue in lease acquisition, see Notes and 8 Comments, Burt, “Playing the ‘Wild Card’ in the High-Stakes Game of that it is a security against corruption.” Urban Drilling: Unconscionability in the Early Barnett Leases,” 15 Tex. Wesleyan L. Rev. 1 (Fall, 2008). Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the princi- About The Author ples of its constitution.”9 Brian Stanley is vice president Let us vow to thank the public in May 2016 and general counsel of The Hef- and declare the month of September 2016 as ner Company Inc., located in Juror Appreciation Month. In September every Oklahoma City. He also main- courthouse in Oklahoma will have a jury docket. tains a limited private practice, To those who have responded to the call of primarily in the areas of oil and jury service, on behalf of the Oklahoma Bar gas, real estate, estate planning Association, who as lawyers are officers of the and business transactions. He is court, we thank you for coming to the court- AV rated by Martindale-Hubbell, is listed in Marquis houses and serving as the third branch of gov- Who’s Who in American Law and is a member of ernment and rendering justice. Mensa. 1. Guinther, John, The Jury in America. New York: The Roscoe Pound Foundation 1988, 26. 2. Id. at 26. 3. Id. at 26. 4. Id. at 26. 5. Id. at 26. 6. Id. at 27. 7. Id. at 27. 8. Hamilton, Alexander. (No.83, The Federalist Papers, NY: New American Library of World Literature Inc. 1961 at p. 500.) 9. The Writings of Thomas Jefferson 71(Wash.Ed. 1861).

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 803 OBA Real Property Section’s 2016 Cleverdon Real Property CLE Roundtable Seminar

804 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 SCHOLARLY ARTICLE

Business Courts: Specialized Courts for Complex Business Litigation By Spencer C. Pittman usiness courts are specialized courts reserved for complex business litigation often requiring a statutory minimum Bamount in dispute. The number of business courts has grown exponentially and advocates have declared them an emphatic success. However, scholars and practitioners criticize business courts citing both readily observable and theoretical issues. Proponents argue business courts provide efficiency, cost-savings and local economic growth while opponents argue business courts are inher- ently biased, elitist and without data to support implementation. This article discusses a history of business courts in Oklahoma, the purpose and conceptualization of various models and the principal arguments for and against implementation.

It has been argued that the civil trial is near- HISTORY OF BUSINESS COURTS ing extinction. While trial attorneys may abhor IN OKLAHOMA this idea, statistics compiled nationwide over In 2003, Gov. Brad Henry assigned Oklaho- the last decades largely support this conten- ma’s Economic Development Generating tion. State court civil trials decreased by 51.84 Excellence (EDGE) the task of brainstorming percent between 1992 and 2005 and, as a per- and recommending action plans projected to cent of total dispositions, the absolute number of strengthen Oklahoma’s economy and well- federal trials decreased by 61.1 percent between 1 being. One subgroup, the EDGE Regulatory 1991 and 2010. Scholars have debated the cause Environment Expert Team, conferred and ulti- of this trend, though most agree that increasing mately recommended in their final report for costs of litigation and access to alternative and Oklahoma to implement a business and technol- specialized courts are notable reasons.2 Special- ogy court.3 The EDGE Regulatory Environment ized courts and alternative programs serve a Expert Team found that the business/commer- narrowed purpose with proven positive results, cial court would serve the best interest of all such as decreased administrative expenditures parties by disposing of complex litigation expe- and expedited litigation. The variety of special- ditiously, impartially, in conformity with the law ized courts continues to expand as court and with reasonable expenditures. They also administrators and judges attempt to further found that the court would provide effective reduce costs and increase litigation efficiency. dispute resolution and may allow businesses to However, there is a new specialized court, the strategically pre-plan their affairs to avoid future business court, which has been gaining popu- disputes.4 In response to the EDGE findings, the larity (and notoriety) across the country in the Oklahoma Legislature provided the Supreme past decades. Court of Oklahoma with permissive enactment

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 805 authority regarding the creation of business party or recommendation from the presiding courts within the 2004 tort reform law.5 The judge.12 Many business court models allow for enacted legislation specifically stated Oklahoma either option. was in need of a court specializing in “litigation The primary consideration when enacting a involving highly technical commercial issues,” business court is whether to create a physically primarily in municipalities containing a popula- separate business court or to integrate the court tion of 300,000 or more.6 into an existing generalized docket. The most In 2007, Oklahoma House of Representatives notable physically separate business court in Speaker Lance Cargill and Sen. Glenn Coffee America is, of course, Delaware’s Court of Chan- re-opened the discussion on business courts in cery, which requires no introduction. North Oklahoma. Despite a positive House interim Carolina’s business court also utilizes the physi- study and passage of a House bill (87 ayes to 10 cally separate concept in Greensboro, Charlotte nays), the bill failed to make it out of the Senate and Raleigh. Despite reflecting the same model, Judiciary Committee after being tabled for the Delaware and North Carolina business nearly two years.7 Though Oklahoma has not courts are vastly different. While the Court of rejected the idea of implementation, there has Chancery was designed to hear only matters of been no further action regarding business equity, North Carolina’s business court was courts in the state since that time.8 “designed to have a single judge hear business and commercial disputes, at equity or law, from CONCEPTUALIZATION AND BUSINESS 13 COURT MODELS beginning to end.” Matters in North Carolina can be assigned to the business court if the case There are currently 27 states with a business falls statutorily within a certain specific category court or a specialized court for complex litiga- of dispute,14 based on the complexity of the mat- tion in America.9 Business courts have primar- ter,15 by party motion or by the judge ex mero ily been “a division of a larger court (typically motu in his or her discretion as gatekeeper.16 Fur- a trial court) with a jurisdiction limited to thermore, all North Carolina business court some, but not all, kinds of business disputes, judges must provide a written opinion for each presided over by only a few specialist judges, case on final disposition.17 with an emphasis on aggressive case manage- On the other hand, a majority of business ment…”10 Business courts were founded on the court models have chosen to incorporate a premise of innovation, efficiency and flexibili- complex business litigation docket within an ty, specifically tailored to suit that jurisdiction’s existing generalized docket. This model is needs. For this purpose, no uniform model favored because it allows existing judges to rules have been recommended or promulgat- hear the complex litigation without the need ed. Since their inception, the form and function for appointment of exclusive business court of business courts have been highly varied — judges thereby reducing expenses. For instance, similar to a snowflake, no two business courts Maine implemented a “Business and Consum- are exactly alike.11 While some business courts er Docket” that provides gatekeeping authority are physically separate entities containing their for the assigned judge. This judicial gatekeeper own exclusive presiding judge, other business can examine and scrutinize business and con- courts are integrated into an existing general sumer law disputes and may singlehandedly docket based on prerequisite criteria or at a accept the case into the specialized docket.18 A presiding judge’s discretion as gatekeeper. template of criteria is provided to assist the The most common variability amongst the gatekeeper in his/her decision but transfer to business courts includes whether the business the business court can also be made by party court will retain a minimum amount-in-contro- application.19 Proponents of the “add-on” busi- versy for jurisdictional criteria for inclusion in ness court further contend this concept comes business court, whether to accept statewide with funding allocation benefits. Since there transfers of jurisdiction or if inclusion should would be no need for the creation of a physical be only limited to a specific county. Addition- “new court,” the salary of a new judge and ally, jurisdictions adopting a business court staff members would be virtually nonexistent. must decide if cases should be automatically This model’s disadvantage is the potential for assigned to the business court solely based on a new judicial assignment to the business court prerequisite criteria or whether a transfer to the docket meaning uniformity of rulings would business court is contingent upon motion by a depend on the assignment of judges.

806 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 A similar “add-on” model, implemented in beginning to the end of a complex dispute. Fulton County (Atlanta), Georgia, retains four Coupled with mandatory written opinions, judges who set aside time from their general this exclusivity provides predictability and docket for the county’s business court.20 Inclu- uniformity in both the serving judge and his or sion into the Fulton County business court can her rulings within the business court through- be either through motion or by judicial request.21 out the course of any given business or com- After objections are heard and overruled, a mercial lawsuit.26 This rationalization also committee overseeing the business court com- addresses concerns for slow moving dockets mences a vote to ensure strict compliance with with more than one judge handling various the criteria for inclusion into the business aspects of a single dispute. Proponents of this court. Accepted cases brought by motion business court model further contend it increas- require payment of a transfer fee not to exceed es the judge’s actual knowledge and experi- $2,500 (in 2014, 70.37 percent of cases assigned ence in these forms of complex business and to the Fulton County business commercial disputes rendering court were brought by motion).22 higher expertise in the given Fulton County has self-pro- field.27 claimed that their business court model provides expeditious reso- Understandably, As the cited original purpose of lution to motions, an early case the business court the business court, proponents management conference manda- also allege the specialized court torily held within 30 days of trans- models are all will improve efficiency, which fer to the business court from the may in turn provide local and general docket and purported differentiable… statewide cost-savings as well as ready availability to adjudicate more expeditious case resolu- 28 issues pertaining to discovery.23 In tion. The in-creased resources further support of their program, and staffing availability for a the Fulton County business court provides pub- newly founded business court licly accessible objective data to support its should contemporaneously free the burdened retention.24 Understandably, the business court district courts from litigation congestion. Theo- models are all differentiable, and the benefits to retically, since the complex business disputes be derived from implementation, if any, will are removed from the generalized parent dock- vary according to the specific model of business et, the specialized court should improve the court adopted in that jurisdiction. administrative efficiency of the court and case management for the other forms of litigation.29 PROPONENTS’ ARGUMENTS FOR Statistics of cost-savings/expenditures from BUSINESS COURT business courts are nonexistent, and the only Proponents of business court primarily advo- publicly accessible data to this regard is the cate for implementation due to the potential expenditures from North Carolina’s business for judicial expertise and predictability, court court. North Carolina’s business court expen- administrative and litigation efficiency and the ditures for their three business courts in fiscal potential for the business court to serve as a year 2013-2014 totaled $1,611,005.03, which is vehicle for local business recruitment and eco- not a modest sum.30 nomic development. Proponents allege business courts may serve Exclusive business court judges in the physi- as a recruitment incentive for new businesses cally separate model can maintain expertise in to establish, expand or move to the location of the business/commercial disputes through the business court or may serve to entice cur- prior experience and continual learning in an rent in-state businesses from moving out-of- exclusive business court capacity. The judges’ state. Due to interstate competition, this would expertise will simultaneously raise the confi- provide effective commercial and economic dence levels of businesses in the court system development for the jurisdiction and the state through the business court rather than the because the business court would establish a businesses seeking alternative methods of dis- trustworthy forum for disputes.31 Most schol- pute-resolution, such as arbitration, which may ars refute this argument contending regional result in inconsistency and exponentially great- establishment, expansion or relocation by a er risks.25 These designated exclusive judges corporation requires methodical consideration will also remain in this capacity from the of pros and cons along with analyses of the

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 807 economic and business climate of that state.32 It ment decisions and certain interlocutory ap- was further deduced that it would be “highly peals from all other civil district court matters unlikely that any business, whether in-state or not in the business court must appeal to North out-of-state, would make a location decision Carolina Court of Appeals, which is where the based on the absence or presence of a special- implication of a “two-tiered” justice system ized business court.”33 Incidentally, a recent may arise.41 Furthermore, the distribution of study in North Carolina concluded the number additional funding and higher quality judicial, of publicly traded companies and companies technological or administrative resources to incorporated in North Carolina dramatically business courts may increase the perception of decreased following its implementation of elitism if other noneligible and underfunded business court in 1996.34 courts or general dockets are overlooked.42 OPPONENTS’ ARGUMENTS AGAINST One scholar has posited that group cohesion BUSINESS COURT could result in bias of the business court judges Opponents of business courts contend the due to the narrowly focused professional group different court models may be biased toward practicing before the business court. He argues large businesses or commercial parties at the consistent members of the corporate/business detriment to individual litigants or small busi- litigation bar will regularly appear in that par- nesses and may be elitist in nature. In addition, ticular judge’s business court and this smaller statistics on the long-term success, sustainabil- one-dimensional docket would be comprised ity and cost-efficiency of business courts is of a unique and highly experienced group of virtually nonexistent. attorneys. The judge, likely a member of such a bar, would share their narrow interests result- The most commonly cited argument in oppo- ing in favoritism since specialized group mem- sition to the enactment of business courts is the bers with common interests often associate. potential for bias in favor of commercial par- This group cohesion may result in professional ties and large corporations to the detriment of bias from the business court judge toward the individual, small business or nonbusiness liti- specialized group members thereby compro- gants. The fear that others may be treated dif- mising the neutrality of the business court. ferently under the law in business courts has, This scholar concludes, “the court might slow- in fact, led to the folding of some business ly but inexorably be captured by its own spe- courts35 and been addressed orally in business cialized bar, resulting in the loss of confidence court hearings.36 Scholars have referred to this by the general bar and the public in the court’s quandary as a theoretical “two-tiered” justice independence and objectivity.”43 system, wherein certain litigants, namely commercial parties and large corporations, are Finally, business courts are still a relatively favored over others.37 As such, opponents of new concept. While nearly all business courts business courts argue the very notion and con- across the nation advocate expansion and ceptualization of the business court favors vocalize their successful aspects of business corporations at the expense of small or non- courts, there is no current long-term data to business and individual litigants.38 support business court sustainability, cost- effectiveness or faster case disposition.44 The All business court models function on the only publicly accessible data on business courts premise of expedited litigation, cost-savings, are reports provided by Fulton County45 and the specialized attention to the litigation and par- North Carolina business court,46 as mentioned in ties and the ready availability for the resolution detail above. This short-term data is relevant of disputes. This, in turn, leads to the potential and worthy of consideration. However, it is pre- for perceived elitism over other litigation that mature to cite this data containing geographical did not meet the criteria for inclusion into the limitations to support implementation of busi- business court. An example of this implicit ness courts nationwide. Therefore, longitudi- form of “elitism” may be the 2014 North Caro- nal nationwide data collection and analyses of lina Business Court Modernization Act.39 This the impact of business courts are necessary to act authorizes final judgment decisions and measure the court’s true success. certain interlocutory appeals from the North Carolina business court directly to the North Carolina Supreme Court thereby bypassing the North Carolina Court of Appeals.40 Final judg-

808 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 CONCLUSION 18. See generally State of Maine Supreme Judicial Court: Admin. Order JB-07-1(A. 11-08). 19. Me.R.Civ.P., Rule 130(a)(3); Id. at Rule 131(a)(2); Id. at (a)(1). The implementation and expansion of busi- 20. “Business Court – Frequently Asked Questions, Superior Court ness courts across the nation are exponential of Fulton County,” available at www.fultoncourt.org/business/ with good reason. The publicly available data, business-faq.php (last visited Jan. 19, 2016). 21. Atlanta Judicial Circuit Rule 1004, at 3(a) (criteria for transfer to though limited, supports expedited litigation Fulton County Business Court). disposition, which may lead to cost-savings for 22. “Business Court – General Information, Superior Court of Ful- ton County,” available at www.fultoncourt.org/business/business- litigants and court administrations. This short- project.php (last visited Jan. 19, 2016); Business Court: 2014 Annual term data cannot be ignored and warrants further Report, Fulton County Superior Court 4 (2014). 23. See generally Business Court: 2014 Annual Report, Fulton exploration, collection and analysis. Overcoming County Superior Court (2014). the hurdle of perceived elitism or bias may be a 24. Id. at 4. (complex contract and complex tort cases in the busi- struggle for venues. Also, certain secondary ness court docket resolved 65 percent and 56 percent faster, respec- tively, than similar cases on the court’s general docket). foreseen benefits from business court, such as 25. Press Millen, Why do we have a business court? Womble Carlyle interstate competition and economic develop- Sandridge and Rice, PLLC 2-3 (2008), available at www.wcsr.com/ resources/pdfs/bl051208.pdf (last visited Jan. 18, 2016). ment, remain in question. 26. Benjamin F. Tennille et al., “Getting to Yes in Specialized Courts: The Unique Role of ADR in Business Court Cases,” 35 Pepp. Disp. Resol. For these reasons, most jurisdictions have L.J. 39, 41-3 and 65 (2010). enacted pilot programs to ascertain the realistic 27. Lee Applebaum, The Steady Growth of Business Courts, National Center for State Courts 72-3 (2011). benefits and shortcomings a business court 28. EDGE Final Report, supra note 3, at 3. may offer. Implementing a pilot program to 29. Applebaum, supra note 8. 30. 2015 Report on North Carolina Business Court, North Carolina include data collection and analysis would Administrative Office of the Courts (March 1, 2015), at table 2. provide the critical information needed to fully 31. ABA Section of Business Law, Establishing Business Courts in Your State 2008-2009, at 1. determine the cost, the effectiveness and the 32. Gregory Day, “Revisiting the North Carolina Business Court efficiency of a particular jurisdictions’ business After Twenty Years,” 37 Campbell L. Rev. 277, 295-301 (2015); John F. court model. More importantly, the collected Coyle, “Business Courts and Interstate Competition,” 53 Wm. & Mary L. Rev. 1915, 1939 (2012). data can and should be publicly released for 33. Id. at 1920. national consideration, which will ultimately 34. Day, supra note 32, at 310-13. 35. WFYI Indianapolis, “New Courts Must Balance State’s Busi- lead to the alleviation of geographically limit- ness Reputation With Law Enforcement,” Public Affairs (June 11, 2015) ed data on the business courts. available at www.wfyi.org/news/articles/new-courts-must-balance- states-business-reputation-with-law-enforcement (last visited Jan. 15, 2016). 1. Marc Galanter and Angela Frozena. The Continuing Decline of 36. Order on Motion for Preliminary Injunction, Digital Recorders Civil Trials in American Courts, Pound Civil Justice Institute 3-10 (2011). Inc. v. McFarland, 2007 NCBC 23, 07-CVS-2247 (June 29, 2007), at ¶¶ 2. See generally Xavier Rodriguez, “The Decline Of Civil Jury Trials: 73-4. A Positive Development, Myth, Or The End Of Justice As We Now 37. Ember Reichgott Junge, “Business Court: Efficient Justice or Know It?,” 45 St. Mary’S L.J. 3 (2014); See generally John H. Langbein, Two-Tiered Elitism?,” 24 Wm. Mitchell L. Rev. 315, 318 (1998). “The Disappearance of Civil Trial in the United States,” 122 Yale L.J. 522 38. Millen, supra note 25. (2012). 39. S. 853, 2013 Gen. Assem. (N.C. 2013) (codified at N.C. GEN. 3. EDGE Regulatory Environment Expert Team, Oklahoma’s Eco- STAT. §7A-27); effective Oct. 1, 2014. nomic Development Generating Excellence (EDGE) Regulatory Envi- 40. N.C. Gen. Stat. §7A-27(a)(2),(3). ronment Expert Team: Final Report 2 (Oct. 1, 2003). 41. Id. at 27(b)(2),(3). 4. Id. at 3. 42. Kroeze, Maartin, “Ensuring Judicial Infrastructure: The Theory 5. H.B. 2661, §§16-7, 49th Leg., 2d Sess. (Okla. 2004) (codified at and Practice of Specialised Courts,” Enforcement of Corporate Governance Okla. Stat. tit. 20 §91.7); effective Nov. 1, 2004. in Asia: The Unfinished Agenda 65 (2007). 6. Okla. Stat. tit. 20 §91.7, at (A)-(B); as of the 2010 United States 43. Marcus Zimmer, “Overview Of Specialized Courts,” Int’l J.Ct. Census, municipalities in Oklahoma with a population exceeding Admin. 4 (Aug. 2009). 300,000 include Oklahoma City and Tulsa. 44. Stateline, “States Set Up ‘Business Courts’ for Corporate Con- 7. H.B. 2106, 51st Leg., Reg. Sess. (Okla. 2007). flicts,” Governing the States and Localities (Oct. 28, 2015). 8. Lee Applebaum, “The ‘New’ Business Courts: Responding to 45. Business Court: 2014 Annual Report, supra, note 23 (only repre- Modern Business and Commercial Disputes,” 17:4 Bus. L. Today (Mar./ sentative of Fulton County, Georgia). Apr. 2008). 46. 2015 Report on North Carolina Business Court, supra, note 30. 9. Jenni Bergal, “‘Business Courts’ Take on Complex Corporate Conflicts,” The Pew Charitable Trusts (Oct. 28, 2015) (Indiana will be the 28th state with a business court in 2016). 10. Ralph Peeples and Hanne Nyheim, “Beyond the Border: An About The Author International Perspective on Business Courts,” 17:4 Bus. L. Today (Mar./Apr. 2008). Spencer C. Pittman is an asso-

11. Id. (“Any definition of a business court is, in the end, a bit of a compromise. It depends upon how wide or narrow we want the frame ciate attorney with The Robin- of the picture to be”). son Law Firm PC in Tulsa. His 12. Christopher R. Drahozal, “Business Courts and the Future of Arbitration,” 10 Cardozo J. of Conflict Resol. 491, 496 (2008). primary focus is insurance defense 13. Applebaum, supra note 8. and business litigation. He gradu- 14. N.C. Gen Stat. §7A-45.4. ated from OU in 2010 and 15. N.C. R. Super. and Dist. Cts., Rule 2 2.1(d) (criteria for “complexity”). obtained his J.D. from the TU 16. Id. at (a). College of Law in 2013. 17. “About the Court,” North Carolina Business Court, available at www.ncbusinesscourt.net/history.htm (last visited Jan. 16, 2016).

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 809 SCHOLARLY ARTICLE

Understanding Data-Breach Liability: The Basics Every Attorney Should Know By Peter J. Arant

magine two nightmare scenarios an organization might face. In the first scenario, a natural disaster completely destroys the Iorganization’s building and all of its physical assets. In the second scenario, the organization suffers a data breach. The breach compromises records containing thousands of individuals’ names, social security numbers and financial account numbers. Which one of these two scenarios might be the costlier event? Depending on the circumstances, it could be the data breach.

At first, this is a radical concept to grasp. zation might have to comply with breach-noti- How did we reach the point where a compro- fication requirements, settle a major lawsuit mise of sensitive personal data can exceed and pay out regulatory fines — all based on the what even a total physical disaster might cost? same event. Part of the story has to do with recent techno- Additionally, the organization will expend a logical advancements. Our ability to create, sizable sum on legal fees as well as investing in store and access sensitive data continuously ways to lessen the impact of possible litigation increases on an upward trajectory. What most (for example, by offering credit monitoring ser- forget, though, is that with this proliferation of vices as a way of cutting off plaintiffs’ damages). data, as well as our increased access to it, the If you understand key laws and legal issues risks of a breach not only grow in number but at the heart of a data breach, you can use this also in severity. knowledge to reduce your liability exposure or The other part of the story involves the rea- that of organizations you advise. sons why certain data can carry with it such The purpose of this article is to educate prac- risks. According to one study, the average cost titioners regarding some of these key laws and of a data breach in the U.S. is $217 per compro- issues applicable to data breaches. The first mised record.1 part of the article goes over the three main legal How can a data breach be so costly? In reali- consequences an organization can face after a ty, there are a wide range of variables factoring breach. into the overall cost. Examples include foren- The second part of the article is intended to sics and investigation services, the reputational provide actionable information on approaches damage suffered by the organization and the organizations can take both to reduce their loss of existing customers.2 chances of suffering a breach and to lessen the Costs tied to the legal consequences of a impact should one occur. breach are also a significant factor. An organi-

810 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 SCOPE OF THE ARTICLE If an organization has customers or clients in AND IMPORTANT TERMS multiple states, the legal obligations might There are various types of sensitive data that, vary drastically, depending on which states’ if compromised, could result in legal liability. laws are triggered. This article is focused on data commonly Given the heterogeneous nature of state referred to as personally identifiable informa- breach notification laws, simultaneous compli- tion (PII). PII usually consists of an individual’s ance with multiple laws can be a logistical name along with one or more other identifiers nightmare — and an expensive one at that. — items like financial account numbers, social security numbers, dates of birth and so on. Regulatory Enforcement Actions A subset of PII also discussed in this article Many organizations, especially those belong- includes health information about an individu- ing to a specific sector governed by federal law, al. This kind of PII is usually called “protected face the threat of fines and penalties assessed health information” (PHI). by regulatory bodies. There are simply too many laws and issues HIPAA provides some of the most well- relating to PII to address or even casually men- known examples of regulatory fines. For tion in a single article. This article highlights instance, New York and Presbyterian Hospital, some of the more important laws and issues along with Columbia University, settled with associated with breaches of PII. the Department of Health and Human Services Office for Civil Rights (OCR), for a combined THE LEGAL CONSEQUENCES OF $4.8 million due to the disclosure of PHI A BREACH belonging to 6,800 individuals.8 Following a breach, there are three main Other HIPAA fines include Alaska Depart- legal consequences an organization might face: ment of Health and Human Services ($1.7 mil- 1) breach notification obligations, 2) regulatory lion due to hard drive stolen from vehicle); enforcement actions and 3) lawsuits. Each of CVS Pharmacy ($2.25 million for improper these is discussed below. disposal of records in public dumpsters); Cig- Breach Notification Obligations net Health Center ($4.3 million for failure to cooperate with OCR investigation and failure Following a data breach, an organization to cooperate with records demands).9 might be required to provide notification to those affected. The Federal Trade Commission (FTC) is another regulatory authority capable of hitting The obligation to notify could arise by law or organizations hard in their wallets. Among its contract. At the federal level, notification many functions, the FTC is tasked with the requirements can be found in HIPAA regula- broad mission of preventing unfair or decep- tions, Internal Revenue Service regulations and tive business practices.10 The FTC considers other places.3 poor data security and privacy measures as Currently, 47 states, the District of Columbia, constituting such unfair or deceptive practices. Guam, Puerto Rico and the Virgin Islands all As a result, the FTC sometimes brings en- have breach notification laws.4 forcement actions following a well-publicized Generally speaking, these breach notification breach. In one enforcement action, ChoicePoint laws require a person, entity or government settled with the FTC, agreeing to pay $10 million in civil penalties and $5 million for con- agency to notify affected individuals of breach- 11 es involving their unencrypted PII.5 This obli- sumer redress. Wyndham Resorts and Hotels, gation to notify is analogous to the common which had suffered three separate data breach- law duty to warn.6 es, recently settled with the FTC and agreed to implement a comprehensive information secu- Deciding whether notification is required rity program.12 often means wading through breach notification statutes from multiple states. Most of these This is just a snapshot of how an organiza- statutes are outdated, poorly worded and, tion’s data security and privacy practices can worst of all, they lack uniformity.7 be the subject of regulatory scrutiny. If an organization belongs to a specific sector or industry governed by federal law, there is a good chance

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 811 a regulatory body could get involved should times forced to issue new cards to their cus- the organization suffer a breach. tomers. They might also incur thousands or even millions of dollars in fraudulent purchas- Lawsuits es. To recoup their losses, financial institutions Class-action Lawsuits. Most high-profile sometimes sue the organization that experi- data-breach incidents are immediately met enced the breach.17 with a barrage of class-action lawsuits. Law- The case of Colorado Casualty Insurance Co. v. yers now race to the courthouse to file suit Perpetual Storage Inc.18 provides another illus- even before a breach has been confirmed. For tration of one organization passing the blame example, Home Depot was hit with a class to another. In that case, the University of Utah action just days after merely stating it was had given backup tapes containing PHI of 1.7 investigating “unusual activity.”13 million individuals to its data-storage compa- Plaintiffs in class-action lawsuits assert a ny, Perpetual Storage.19 wide variety of claims: negligence, breach of The backup tapes were later stolen while express or implied contract, violation of con- under Perpetual’s watch.20 As a result, the uni- sumer protection laws, unfair competition, versity expended $3.3 million in notification invasion of privacy, emotional distress and costs, credit monitoring services and other ser- bailment.14 vices.21 The university then demanded Perpet- The issue of standing usually takes center ual reimburse it for these amounts.22 Perpetual, stage in these cases. Even if a person’s records in turn, tendered the claim to its carrier, Colo- are compromised in a breach, does that mean rado Casualty.23 The latter filed a declaratory the person has suffered an injury-in-fact suffi- judgment action alleging there was no cover- cient to confer standing? Is the threat of possi- age for the incident.24 ble identity theft enough? If so, how certain Perpetual Storage never reached trial; howev- must the impending threat be? er, the case is important because it signals what These are the kinds of questions courts weigh the future holds for data-breach litigation. in determining whether plaintiffs have stand- Data-breach lawsuits will increasingly involve ing in consumer data-breach suits.15 Although defendants who are not multibillion-dollar cor- courts tend to employ roughly the same analy- porations like Target or Home Depot. We sis, they tend to differ in terms of the impor- should also expect more lawsuits concerning tance they place on certain facts. Consequently, the role of third-party service providers and two cases with largely the same facts might insurance coverage issues. end up with very different results. PREVENTIVE MAINTENANCE: Standing is a highly complex issue in these EXPLORING WAYS ORGANIZATIONS cases that will not be resolved any time soon, CAN PROTECT THEMSELVES FROM whether by virtue of a U.S. Supreme Court case A BREACH or otherwise. The takeaway for now is that As the examples above illustrate, the impact there is no way to predict, in any reliable man- of a breach can be very damaging, if not fatal, ner, how a court might rule on standing in a to an organization. What, then, can organiza- given data-breach case. tions do to protect themselves from a breach? Other Private Suits and Claims. Besides Because of the many legal issues at play, what consumer class-action suits, data breaches can roles can attorneys play in that process? also lead to numerous other lawsuits and Before looking at some of the ways organiza- claims brought by private parties. After all, tions can protect themselves, keep in mind that sometimes one organization’s breach can finan- formal protocols for safeguarding sensitive cially harm a second organization. Further, information might already be legally required while one organization might be the public of the organization. At the federal level, HIPAA face of the breach, behind the scenes there is an obvious example. Some states also man- could be another party partly responsible for date that an organization install certain safe- 16 the incident’s occurrence. guards if the organization will be using or Consider the consequences to financial insti- accessing their residents’ PII.25 tutions following a breach at a major retailer. Banks and credit card companies are some-

812 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Understanding The Big Picture: Breach erations include the impact of network moni- Prevention Versus Comprehensive Risk toring on employees’ privacy rights. Management Security Standards and Frameworks The first thing to understand is that it is There are a lot of moving parts when it impossible to be completely immune from a comes to managing an organization’s informa- data breach. tion security and privacy risks. Trying to keep This isn’t to suggest there’s no use even try- track of all of these moving parts — or even ing to prevent a breach. Rather, the situation knowing what step to take first — can be a requires a shift in mindset. While preventing a daunting challenge. A good first step is to breach from occurring is a major piece of the refer to information security standards and puzzle, it’s not the only piece. frameworks. We all hear about ways to protect ourselves Among the most widely used standards and from cybersecurity incidents. We’re told to use frameworks are those from the National Insti- encryption, utilize strong passwords, patch tute of Standards and Technology (NIST),26 the software and so on. Though these kinds of International Organization for Standardization measures are all critical, they only make up one (ISO)27 and ISACA.28 component of a larger strategy. These standards and frameworks are similar The starting point should be to in that the adoption process begins assume that a breach is not a mat- with some sort of risk assessment ter of if but when. By adopting this for identifying security vulnera- mindset, an organization can uti- bilities. The organization then lize a more comprehensive ap- The starting identifies and implements techni- proach to dealing with the risks. point should be to cal, physical and administrative Instead of just breach prevention, controls to address them. the focus should include how to assume that a Contractual agreements now lessen the impact should an inci- breach is not a commonly reference these stan- dent occur. For instance, can the dards and frameworks, especially organization limit the amount of matter of if but if the parties’ relationship involves data on its network by getting rid the exchange of sensitive personal of old or largely useless data? when. data. Could it reduce the number of devices or users capable of access- In summary, security standards ing the network or certain por- and frameworks provide a solid tions of it? Can the organization foundation for managing informa- 29 purchase insurance to cover the costs of a tion security and privacy risks. After under- breach? standing the areas they cover and how they work, an organization can then decide whether By acknowledging the impossibility of being it should formally adopt one of these standards completely immune from a breach, the goal and frameworks. becomes one of managing the risk in the most effective way possible. EXAMPLES OF SPECIFIC MEASURES ORGANIZATIONS CAN TAKE The focus should be to eliminate or avoid as many risks as possible. For each remaining Below is just a sample of the kinds of proac- risk, the organization will have to decide to tive measures organizations can take to protect what extent it can mitigate the risk, shift it to themselves from the harm resulting from a another party or accept the risk. breach. Again, these are just pieces of a much larger puzzle. Attorneys can provide valuable input in this process, given the various risks that are legal in Encryption nature. Attorneys can advise organizations as The legal consequences of a data security to the extent of certain risks, as well as strate- incident can be dramatically different if the gies for transferring or avoiding risks. There data is encrypted. In fact, the incident might are a host of other legal considerations as well. not be considered a “breach” at all or otherwise These include things like deciding how long to does not carry with it the same legal obliga- retain records based on records retention laws tions. It’s not enough to simply be told that the and e-discovery concerns. Other legal consid- organization is using encryption and leave it at

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 813 that. Data can be “in transit” or “at rest,” for These agreements can contain provisions detail- example, and the encryption method for each ing the consequences of a breach, including: is different. There are also different levels of • indemnification; encryption, meaning not all encryption is created equal. • which party must pay breach investigation and remediation costs; Breach Preparedness • which party must pay notification costs Organizations should not only develop plans and credit monitoring services. for dealing with a breach, but also test the effectiveness of their plans through simulated Service provider agreements can also outline exercises. how the provider is to conduct itself when handling sensitive data. These provisions could Some valuable provisions to include in a include: breach response plan include: • the standard of care required of the service • the individuals within the organization in provider; charge of overseeing the breach response; • the technical safeguards required when • the protocols for containing and remediat- handling sensitive data; ing the breach, including the use of a cybersecurity firm; • the right to audit the security practices of the service provider; • how evidence of the breach should be collected and preserved; • how data is to be returned or destroyed upon the agreement’s expiration. • how the breach response should be docu- mented; These are just a handful of contractual provi- 31 • when the breach should be reported to an sions worth considering. insurance carrier; Cyber Insurance Coverage • when to retain outside counsel; Organizations with standard insurance poli- • how and when the organization will deter- cies such as commercial general liability (CGL), mine its notification obligations.30 directors and officers (D & O) and errors and omissions (E & O) might find they have little or Incorporating the use of an attorney in a no coverage for a data-security incident. For breach response plan can be very beneficial. instance, a CGL policy might preclude cover- Should a breach occur, an attorney can hire and age on the basis that there is no physical injury work with a cybersecurity firm to contain and to person or property.32 An E & O policy might remediate the breach. be limited based on how it defines the “profes- While cybersecurity professionals work on sional services” covered.33 technical aspects relating to the breach, counsel To fill in the gaps, there are now policies that can assist the organization in understanding its address data-security incidents. These are legal obligations regarding evidence preserva- sometimes referred to as “cyber-risk” policies.34 tion, notification requirements and internal These cyber policies can provide first-party policy compliance, among other things. and third-party coverage for a variety of events. Additionally, the organization’s communica- For example, cyber policies can cover business tions with the attorney and the attorney’s interruption, breach-notification costs, credit cybersecurity firm could be considered privi- monitoring for affected individuals, regulatory leged in future litigation. expenses, assistance from a cybersecurity firm 35 Contractual Protections and more. Organizations often hire third-party service When shopping for a policy, organizations providers to use, store or transmit sensitive should carefully review exclusions, policy lim- personal information on their behalf. But what its and how they correspond with other policies. would happen if a service provider is respon- As for exclusions, a policy might deny coverage sible for a breach? for acts of dishonest insiders or failure to follow required system-security practices.36 To prepare for that possibility, organizations can protect themselves, at least to some extent, Finally, organizations should bear in mind by including certain provisions in their agree- that following a breach, a cyber policy will ments with service providers. often require notifying the carrier as soon as

814 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 possible.37 This is especially true if the policy 12. FTC, Wyndham Settles FTC Charges It Unfairly Placed Consumers’ Payment Card Information at Risk, goo.gl/1cvbst (Dec. 9, 2015). provides coverage for breach investigation and 13. Jonathan Randles, “Home Depot Breach Suit Shows Plaintiffs remediation costs. In that scenario, the carrier Firms’ Jockeying,” Law 360, goo.gl/sEU6XU (Sept. 5, 2014). 14. John Black, “Developments in Data Security Breach Liability,” will want to provide the insured with immedi- 69 Bus. Law 199, 200 (2013). ate services from a cybersecurity firm and 15. Examples of data-breach cases taking up the issue of standing include In re Sony Gaming Networks and Customer Data Security, 996 F. sometimes legal counsel. Delaying contain- Supp. 2d 942 (S.D. Cal. 2014); Remijas v. Neiman Marcus Group, LLC, 794 ment and remediation services might result in F.3d 688 (7th Cir. 2015); In re Sci. Applications Int’l Corp. (SAIC) Backup Tape further damages, which is why coverage could Data Theft Litig., No. 12-347, 2014 WL 1858458 (D.D.C. May 9, 2014). 16. E.g., in the Target breach it appears hackers gained network be affected. access through a third party HVAC company which had done work at several Target locations. Krebs on Security, Target Hackers Broke in Via Insurers do not have sufficient data to accu- HVAC Company, goo.gl/cqqqLt (Feb. 5, 2014). 17. See e.g. Lone Star Natl. Bank, N.A. v. Heartland Payment Systems, rately predict their claims activity related to Inc., 729 F.3d 421 (5th Cir. 2013). these policies. New types of data breaches are 18. Colorado Casualty Insurance Co v. Perpetual Storage Inc., 2011 WL uncovered almost daily, and the scope and 1231832 (D. Utah 2011). 19. Id. at slip op. 1. nature of damages also continue to change. 20. Id. Consequently, cyber insurance products will 21. Id.; Jaikumar Vijayan, “Insurer Says It’s Not liable for Univer- sity of Utah’s $3.3M Data Breach,” Computerworld.com, goo.gl/9FAhqO continue to evolve in terms of the kinds of (June 4, 2010). events they cover, the limits of liability avail- 22. Perpetual Storage, at slip op. 1. 23. Id. able and the exclusions they contain. 24. Id. 25. Massachusetts, for example, requires “comprehensive security As the odds of suffering a data breach contin- programs” be put in place if personal information regarding its resi- ue to rise, having proper insurance is critical. dents is owned, stored, maintained or licensed. 201 Mass. Code Regs. §17.03. CONCLUSION 26. Information regarding NIST standards can be found at www. nist.gov/cyberframework. 27. The ISO publishes various standards regarding information As the examples in this article demonstrate, security, including IS0 27001. More information can be found at www. organizations must change how they assign iso.org/iso/home.htm. value to sensitive personal data. Just as organi- 28. Information about ISACA’s COBIT 5 framework can be found at www.isaca.org/Cobit/pages/default.aspx. ISACA’s COBIT 5 is also zations safeguard tangible assets through secu- a paid product. rity measures and insurance policies, they 29. Smaller organizations with minimal information assets, however, might find them to be too overwhelming or even overkill for their must do the same with sensitive personal data. own needs. Understanding the legal context surrounding 30. For information on these and other provisions to include in a breach response policy, see Christopher Wolf, Hogan Lovells US LLP, this data can help the organization institute the Introduction to Data Security Breach Preparedness with Model Data Security appropriate safeguards. Breach Preparedness Guide, goo.gl/5qi6QX (April 2012). 31. For information on these and other provisions in service pro- Editor’s Note: This is a modified version of an vider agreements, see Dana B. Rosenfeld and Alysa Zeltzer Hutnik, Kelley Drye and Warren LLP, Practical Law Company, goo.gl/GQWx1n article originally published in the Montana Lawyer, (2011) (accessed Jan. 26, 2016). published by the State Bar of Montana. 32. For an example of litigation involving whether a CGL policy covered a data breach, see Sony Computer Entm’t Am. Inc. v. Am. Home Assur. Co., 532 F.3d 1007 (9th Cir. 2008). 1. Ponemon Institute, 2015 Cost of Data Breach: Global Analysis 2, 33. James L. Rhyner and H. Wesley Sunu, “Cyber Liability Insur- goo.gl/njpEB5 (May 2015). ance for Law Firms and Legal Organizations,” The ABA Cybersecurity 2. Id. at 25-26. Handbook 193 (Jill D. Rhodes and Vincent Polley eds., ABA 2013). 3. Thomas J. Smedinghoff and Ruth Hill Bro, “Lawyers’ Legal 34. Lorelie S. Masters, “Insurance Protection for Security Breach- Obligations to Provide Data Security Arising from Generally Applica- es,” Data Breach and Encryption Handbook 280 (Lucy Thompson ed., ABA ble Law,” ABA Cybersecurity Handbook, 59 (Jill D. Rhodes and Vincent I. 2011). Polley eds., ABA 2013) (citing 45 CFR §164.314(a)(2)(1)(C); 45 CFR 35. Mary Thompson, CNBC, Why Cyber-Insurance Will Be the Next §164.410; IRS Rev. Proc. 98–25, §8.01). Big Thing, www.cnbc.com/id/101804150 (July 1, 2014). 4. National Conference of State Legislatures, Security Breach Notifi- 36. Masters, supra n. 34, at 280. cation Laws, goo.gl/uC9pKJ (Oct. 22, 2015). 37. Masters, supra n. 34, at 280. 5. Andrew B. Serwin, Peter F. McLaughlin and John P. Tomasze- wski, Privacy, Security and Information Management: An Overview 285 (ABA 2011). About The Author 6. Smedinghoff and Bro, supra n. 3, at 59. 7. Links to state breach notification laws are located at goo.gl/ Xaqb89 (accessed Jan. 19, 2015). Peter Arant is an attorney

8. Department of Health and Human Services, Data Breach Results in $4.8 Million HIPAA Settlements, www.hhs.gov/news/press/2014pres/ based in Missoula, Montana. He 05/20140507b.html (May 7, 2014). advises organizations on a wide 9. Information on these and other incidents involving HIPAA vio- range of matters relating to infor- lations and corresponding penalties can be found at www.hhs.gov/ about/news/index.html (accessed Jan. 26, 2016). mation security, privacy and 10. See Federal Trade Commission Act, 15 U.S.C. §45. technology. He is licensed to 11. FTC, ChoicePoint Settles Data Security Breach Charges; to Pay $10 Million in Civil Penalties, $5 Million for Consumer Redress, goo.gl/ practice in Montana, Idaho and bNshM0 (Jan. 26, 2006). Wyoming.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 815 OBF-OBA PROJECT Volunteers Make High School Mock Trial Program a Success By Marsha Chojnacki

“Every breath you take, every and Judge David Lewis of the mittee drafts the case and then move you make, every bond Oklahoma Court of Criminal sends it to the schools by Octo- you break, every step you take, Appeals. ber of each year. The committee I’ll be watching you.” It is com- also sets up trial sites around After a very close split deci- mon for police to be quoted in the state by using local, state, sion, Moore High School trial, but perhaps no one antici- federal and tribal courthouses. emerged victorious for the pated a quote from the Police. Each site is filled by attorney second year in a row and will This was the opening line in volunteers who serve as presid- the plaintiff’s statement in the Oklahoma High School Mock Trial finals on March 1. Not to be outdone, the defense answered with a police quote of their own. This time it was Detective Joe Friday’s famous phrase, “Just the facts.” If you are a pop culture enthusiast such as myself, these two statements are enough to get your attention. However, there was so much more. Stellar Mock Trial Committee members are (from left) Marsha Chojnacki, performances were provided Andrea Medley, Nathan Richter, Judy Spencer, Kevin Cunningham, by Moore High School and Dan Couch, Melissa Peros, Todd Murray, Tai Du, Jennifer Bruner and Owasso High School as they Michael Nesser. met to determine who would be crowned the 2016 Oklahoma represent Oklahoma at the ing judges and scoring panel- High School Mock Trial state National Mock Trial Competi- ists. These volunteers provide champions. tion in Boise, Idaho, this May. crucial input to the schools that Out of the 36 teams across the The competition was held in helps the teams prepare for the state that began competing in the beautiful Bell Courtroom on next round of competition. January, the other top finishers the OU College of Law campus. were Calera High School in Attorneys not only volunteer Presiding over the trial was eighth, Ada High School Team on the committee and at the Retired Judge Edward Cun- White in seventh, Jenks High sites, but many bar members ningham. The panel was filled School in sixth, Clinton High also serve as attorney coaches with a virtual “all-star” roster School in fifth, Ada High to the participating schools. of judges that included Retired School Team Red in fourth Without these volunteers, the Judge Glenn Adams, Retired and Bishop Kelley High School Oklahoma Bar Association, the Judge Kenneth Dickerson, in third. Oklahoma Bar Foundation and Judge Shon Erwin and Judge all the parents, teachers, stu- Suzanne Mitchell of the United The OBA High School Mock dents and supporters, this won- States District Court for the Trial Committee puts on this derful program would not be Western District of Oklahoma annual competition. The com- possible. I want to offer a very

816 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Bob Speed Frank Stout Ken Underwood Judge Jill Weedon PRESIDING JUDGES AND SCORING PANELIST *denotes rounds judged Lydia Anderson BJ Baker Ana Basora Judging the final championship round were (from left) Judge Shon Gabe Bass Erwin, Judge David Lewis, Judge Suzanne Mitchell, Retired Judge Luke Bateaux Glenn Adams, Retired Judge Kenneth Dickerson and Retired Judge Jeremy Beaver Edward Cunningham. Howard Bertesen Branden Bickle sincere “thank you” to each of Todd Murray Jenna Brown these as well as my deep grati- Michael Nesser* George Burnett tude to committee members Nathan Richter* Julie Bushyhead Nathan Richter, Todd Mur- Susie Summers* Jeff Byers ray, Andrea Medley, Michael Chris Szlichta Whitney Byrd Nesser, Aaron Bundy, Tai Du, Leah Terrill-Nessmith* Brett Cable Melissa Peros, Christine Cave, Laina Vaughn Dan Card Jennifer Bruner, Joe Carson, Solola Webb Eric Carpenter Kevin Cunningham, Solola John Young Dietmar Caudle Webb and Dan Couch. I also ATTORNEY COACHES David Cheek offer a very special word of Jason Christopher* appreciation to Mock Trial Ranada Adams Guy Clark Coordinator Judy Spencer who Clifton Baker Mark Clark works nonstop to keep us all on Judge James Bland James Cosby track and the program going. Judge Daman Cantrell Eric Cavett Michael Coulson For more information Stephana Colbert John Cramer* regarding the OBA’s High Angie Dean Kymberly Cravatt* School Mock Trial Program, Chance Deaton Dan Crawford***** visit www.okbar.org/public/ Deidre Dexter Kari Crawford MockTrial and to sign up as Valery Giebel Judge Edward Cunningham**** a volunteer, please email Celo Harrel Michael Denton [email protected]. Clint Hastings Ken Dickerson Charles Dickson TRIAL SITE William Hickman Susan Dobbins* COORDINATORS Andrew Hofland Mike Horn Bill Doolittle *denotes hosting qualifying and Michon Hughes Susan Eads quarter final rounds Linda Jaha Josh Edwards** Aaron Bundy* Aaron Johnson Kathleen Egain* Joe Carson Chris Jones Kyle Endicott Christine Cave Judge Douglas Kirkley Judge Shon Erwin***** Marsha Chojnacki* Brian McLaughlin Joe Fears Deresa Clark* Judge Tim Mills Craig Fitzgerald Dan Couch Anthony Moore Amy Fogleman Kevin Cunningham* Rob Neal Marna Franklin Tai Du Ellen Quinton Mykel Fry Patrick Layden Rob Ridenour Ryan Fulda April McClure Judge Matt Sheets Kyan Fuscey Andrea Medley* Desmond Sides Jodie Gage Regina Meyer* David Smith Debra Gee Anne Mize Don Smitherman Charles Geister

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 817 Kindanne Jones Robin Rochelle David Jorgenson Charles Rogers David Keglovits Jake Sandlin Are you a former Jennifer Kern Adam Schorn John Kinslow Mark Schwebke****** high school Laci Klinger Micah Sexton Andrew Koester Jeff Shaw mock trial Kendra Kuehn Steven Shreder Brian Kuester Vani Singhal team member? Aaron Lancaster Kim Slinkard Judge Thomas Landrith Karen Smith* The Mock Trial Commit- Kent Larason Jared Smith Tyler Larsen Angela Smith tee would like to create a Paige Lee Charles Snyder list of bar members who Tara Lemmon Tim Sowecke took part in Oklahoma’s Michael Lewis* Sandy Steffen* Carole Liebendorfer* Taylor Stein program. Please email Niki Lindsey Luke Stephens [email protected] with Larry Lipe* Krista Steuart the name of your high Renee Little* Krista Steward Randy Long Kelsie Sullivan school, how many years Nicole Longwell Thomas Swafford II you were on the team Ben Lundquist Charles Swartz and what year(s) that Blake Lynch Brian Swensen Kieran Maye Leslie Taylor took place. Paige McLaughlin*** Scott Thomas Gayle McNamara Carolyn Thompson**** Regina Meyer Judge Norman Thygesen Charles Glidewell Mike Miller Mark Toffoli Amber Godfrey Madison Miller Michael Trewitt Scott Goode Jennifer Miller Mia Vahlberg Stephen Gray Bryan Morris Georgina VanTuyl Mark Graziano*** Phillip Morton** Kyle Wadenheim Lori Guevara Leslie Myers Brechan Wagner David Guten* Michael Nesser Richard Warzynski*** John Hadden Steve Newcombe John Weedn Deborah Haelder Brenda Nipp Robert Whittaker Jared Haines Paul Northcutt Roger Wiley Matthew Haire Jimmy Oliver Betty Williams Judge Sarah Hall Ivan Orndorff* *two rounds Alex Handley Jessica Ortiz* **three rounds Yvette Hart* Mark Osby ***four rounds Judge Barbara Hatfield Shannon Otteson ****five rounds Gaylon Hayes Susan Otto *****six rounds Brady Henderson Jenna Owens ******seven rounds Shane Henry*** Amy Page Craig Hester Kelly Parker About The Author Clay Hiller Julie Pittman Mark Hixon Sonja Porter Marsha Cho- Megan Holden Robert Redemann*** jnacki practices Lori Jackson Robert Redwine in Tulsa and JoLynn Jeter Greg Reilly serves as chair- Richard Johnson Dale Rex person for the Debbie Johnson Jacquelin Rhodes High School Melody Jones Nathan Richter* Mock Trial Logan Jones Lorena Rivas* Committee.

818 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 LEGISLATIVE NEWS Legislative Activity Increases By Duchess Bartmess

OBA President Garvin Isaacs HB 2349 In Senate on gener- and Executive Director John al order. Addresses home- Morris Williams have been stead exemption, veterans sharing updates with you on disability compensation. the recent actions taking place HB 2936 In Senate Judiciary with HB 3162, which would Committee. Condemnation change the selection process — award of costs and attor- for appellate judges, and SB ney fees. 583, which would abolish the Oklahoma Bar Association in HB 3098 In Senate Public its present form. Much is hap- Safety Committee. Self- pening on those two bills, and Defense Act deleting pen- the best way to stay updated is alty. to watch the OBA’s website at www.okbar.org. HB 3162 In Senate Rules Committee. Modifying ap- Even though the 2016-2017 pointing authority for Judi- state budget and budget-relat- cial Nominating Commission. ed issues have grabbed much of the attention of the members of the Legislature, action on other issues has ‘TOP TEN’ MEASURES STILL CONSIDERED been making its way through the process. The ACTIVE NOT ALREADY REPORTED ON March 10, 2016, deadline for third reading of HB 2275 In Senate Appropriation Committee. bills and joint resolutions in the house of origin DNA samples from those arrested for felony has passed. crimes. This report provides an update on measures HB 2472 In Senate, recommended to the full already noted, “Top Ten” measures that are of committee do pass as amended by Appropria- high interest and current information regarding tion Subcommittee for Public Safety and Judi- several other significant issues still considered ciary Subcommittee giving DAs discretion “active.” regarding filing misdemeanor charges. Those measures designated as being on gen- HB 2479 In Senate, recommended to the full eral order awaiting a vote by the full house may committee do pass as amended by Appro- have been acted upon by the printing date of this priation Subcommittee for Public Safety and article. Judiciary Subcommittee regarding Uniform BILLS ACTED ON BY THE GOVERNOR Dangerous Substances Act penalties. SB 1194 Sent to the governor 3-31-16. Repeals HB 2553 In Senate Transportation Committee. 10A, §1-4-202, requiring written notification of Relocation permits for outdoor advertising. emergency custody hearing. HB 2651 In Senate on general order. Creating UPDATED REPORT ON ‘TOP TEN’ Oil & Gas Waste Efficiency and Recycling Act. MEASURES NOTED IN FEBRUARY OR MARCH REPORTS HB 2864 In Senate Appropriation Committee. Creates Unified Law Enforcement Act of 2016. HB 2281 In Senate on general order. Open Records, Internet access.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 819 HB 2962 In Senate on general order. Requires HB 2484 In Senate on general order. Conditions insurance for autistic disorders. resulting in termination of DHS custody and supervision. HB 3098 In Senate Public Safety Committee. Addresses firearms and the Self-Defense Act. SB 902 In Senate, House amendments read. Limiting persons permitted to be guardian. HB 3158 In Senate on general order. Increasing Corporation Commission authority to act with- Civil Procedure Issues out notice and hearing. HB 2399 In Senate Judiciary Committee. Juris- SB 1122 In House on general order. Recom- dictional requirement for emergency ex parte mendations from Water for 2060 Produced orders. Water Working Group. HB 2670 In Senate Judiciary Committee. Asset SB 1219 In House Environment Committee. forfeitures attorney fees and costs award. Use of aquifers. HB 2936 In Senate Judiciary Committee. Con- SB 1362 In House Appropriations Committee demnation attorney fees and costs award. on Public Safety. Repeals noncompliance with SB 1095 In House Insurance Committee. REAL ID Act. Exemption from liability for volunteers. SB 1414 In House on general order. Creates Oil SB 1166 In Senate Judiciary Committee. Autho- & Gas Water Recycling & Reuse Act. rizing DHS to issue subpoenas. MEASURES DESIGNATED FOR SB 1250 In Senate Judiciary Committee. Nota- MONITORING THAT HAVE NOT BEEN PREVIOUSLY REPORTED ON ries electronic signature requirement. Criminal Law and Procedure Issues Constitutional Amendments HB 2397 In Senate Judiciary Committee. Ex- SJR 45 In House on general order. Increases pungement categories. terms for statewide elected executive officers. HB 2443 In Senate, do pass recommended to the SJR 64 In House Rules Committee. Identifica- full committee; as amended Appropriations tion of voters to be able to vote. Public Safety and Judiciary Subcommittee. In- SJR 65 In House Rules Committee. Allow creases limitation for sentence modification. appointment of Commission of Labor. HB 2595 In Senate on general order. Authoriz- SJR 68 In House Rules Committee. Repeal ing consideration of post-traumatic stress dis- Article XXVIII — repeal of article regarding order as mitigating factor for veterans. alcoholic beverages and enacting new Article HB 2934 In Senate in general order. Authoriz- XXVIIIA regarding alcoholic beverages. ing dismissals of prosecutions by district SJR 72 In House Rules Committee. Use of pub- attorneys. lic monies or property for sectarian or religious HB 3160 In Senate, do pass recommended to purposes. the full committee; as amended Appropria- Children — Custody and Guardianship Issues tions Public Safety and Judiciary Subcommit- tee. Reduction of court costs and fees in crimi- HB 2391 In Senate Health Committee. Modi- nal cases. fies home study requirements regarding grandparents. SB 941 In House on general order. Modifying restitution requirements. HB 2426 In Senate on general order. Grand- parent visitation rights. SB 976 In Senate, referred for enrollment. Mul- ticounty agent bondsmen. HB 2431 In Senate on general order. Limiting permanent guardianship. SB 1331 In House on general order. Multicoun- ty agent bondsmen. HB 2483 In Senate on general order. Termina- tion of parental rights, conditions resulting in SB 1530 In House Criminal Law Committee. waiver of jury trial. Consumer Protection Act unlawful practices.

820 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Other Measures Determined to be SB 1246 In House Judiciary Committee. Estab- of Significant Interest lishes method for filling vacancies in district judicial office. HB 2276 In Senate Energy Committee. Eminent domain request for judicial location exception. SB1283 In House Appropriation Committee. Gross production tax changes. HB 2303 In Senate Appropriation Committee. Termination date for well plugging fund. SB 1329 In House Business Committee. Ex- empting churches from building codes. HB 2357 In Senate Energy Committee. Storage tanks and hazardous substances. SB 1374 In House on general order. Long-Term Care Insurance Act. HB 2423 In Senate on general order. Oklahoma Savings and Loan Code. SB 1378 In House Judiciary Committee. Con- demnation proceedings return of excess sums. HB 2444 In Senate Energy Committee. Increas- es civil penalty for pipeline safety rules. SB 1408 In House State Government Opera- tions Committee. Changes procedures for de- HB 2547 In Senate on general order. Repeals 36 termining successors to offices. §6804 which requires informed consent for delivery of health care via telemedicine. SB 1454 In House Appropriation Committee. Organization sales tax exemptions. HB 3104 In Senate Judiciary Committee. Pay- ment of costs by judgment creditor. SB 1455 In House on general order. Methods for determining evaluation of property for ad SB 874 In House on general order. Limitation valorem purposes. on probate property valuation SB 1484 In House Appropriation Committee. SB 885 In House Appropriation committee. Changing sales and use tax rate and base. Organization sales tax exemption. At this point in the legislative process, mea- SB 944 In House. Recommended do pass of com- sures can be changed considerably from the mittee substitute Appropriations and Budget introduced version or even the version adopted General Government Subcommittee. Rental Pur- in the house of origin. Any measure of particular chase Act. interest to an OBA member should be read in its SB 990 In House Judiciary Committee. Exemp- entirety to determine the effect. tion to jury service. CURRENT BILL STATUS? SB 1016 In House on general order. Voter reg- To find the current status of a bill, scroll down istration requirements. to the bottom of the Oklahoma State Legisla- SB 1020 In House on general order. Exemp- ture’s website at www.oklegislature.gov and tions to burning prohibitions. look for “Track Bills.” For more information about bills the OBA is watching, click on the SB 1071 In House general order. Landlord and “Legislative Report” link at www.okbar.org. The tenant exception to eviction proceedings. lists on the OBA site are updated every Friday. SB 1126 In Senate on motion to reconsider. Eminent domain — modification of procedure and judgment award. About The Author

SB 1136 In House Government and Oversight Ms. Bartmess practices in Okla- Accountability Committee. New law placing homa City and chairs the Legisla- limitations on state agencies in regard to fed- tive Monitoring Committee. She eral rule requirements. can be reached at duchessb@ SB 1193 In House on general order. 85-page bill swbell.net. regarding insurance code. SB 1201 In House County and Municipal Gov- ernment Committee. Requires certified real estate appraisers in sheriffs’ sales.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 821 FROM THE EXECUTIVE DIRECTOR Three Barn Dances and Two Goat Ropings By John Morris Williams

Down in Stonewall in my the Bylaws of the Oklahoma Bar been the worst I have ever younger days, my brother often Association states: seen. It is disorganized chaos. used to comment that he had On the other hand, the percep- The Legislative Program of “been to three barn dances and tion of many in the Legislature the Association shall be con- two goat ropings — and ain’t of the OBA has improved fined to those measures relat- seen nothing like this.” This because lawyers are beginning ing to the administration of pretty much sums up how I have to become more engaged in the justice; to court organization, spent my spring. In more than 30 process. Lawyers calling and selection, tenure, salary and years of working in one fashion letting legislators know how other incidents of the judicial or another in and around the they feel is important. office; to rules and laws affect- state Capitol, I have never seen ing practice and procedure in Morrissette, who has recently anything like it. the courts and in administra- announced his candidacy for I have seen the shortage of tive bodies exercising adjudica- statewide office, encourages money before. This time it is a tory functions; and to the prac- members of the bar, regardless bigger hole than I can recall tice of law. However, measures of political party, to participate because the overall totals have relating to these matters may, at every level in the legislative increased over the years — more at the discretion of the Associa- process. people, more students, more tion, be endorsed in principle So there it is, three barn dances prisoners, more programs. It all rather than be included in the and two goat ropings, and I ain’t adds up. This is for someone else Legislative Program. (Empha- never seen nothing like it. A to resolve. But, it sure has con- sis added.) huge budget deficit, people tributed to an atmosphere unlike In 1967 the OBA House of Del- angry over schools and earth- anything I have seen. egates approved in principle the quakes and the answer is to The attacks on the courts and Judicial Nominating Commis- spend time on ways to cripple, the organized bar have been sion for its current proscribed punish and control the judicial greater and more persistent than functions, and since that time it system. If this matter makes it to in years past. For the last 10 has been the policy of the OBA. the ballot, the OBA (pursuant to years or so, there has been one In talking with lawmakers, no state law) cannot have a position bill or another to attack the Okla- one has articulated a real prob- on the election. Here the mantle homa Bar Association or the lem with the JNC or its record of of support or opposition of a courts. This year several were successfully picking judges and ballot initiative will pass to indi- filed, and HB 3162 has made its justices who have kept us scan- vidual lawyers as citizens. I way to the Senate. One might dal free since its creation. There encourage you to get involved ask why the Oklahoma Bar seems to be a determination to because this goat roping is pretty Association has taken a position “pass something” without a stat- darn important. on this issue. Besides wanting to ed goal or purpose other than to maintain a constitutional balance make the courts “accountable.” of power and not politicizing our OBA member and term-limited court system, the OBA bylaws State Rep. Richard Morrissette articulate this is within its very stated: limited range of legislative To contact Executive Director issues. Article VII Section 3 of In the 12 years I have been in Williams, email him at johnw@ the Legislature, this session has okbar.org.

822 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 LAW PRACTICE TIPS

You Are Not Paranoid If They Really Are Watching You Attorney-Client Privilege, Confidentiality and Cybersecurity in the 21st Century By Jim Calloway

“The government is watching But concerns about eaves- The panelists all believe me all the time. They have dropping and communication lawyers should step up their implanted devices to eavesdrop security are certainly not limit- cybersecurity awareness and on me.” It used to be when a ed to United States government practices. Maybe you believe client or friend made this type agencies. there is no possible scenario of statement to you, it was time where your business client “When it came to Snowden, to gently steer them toward a would be the target of govern- we had to assume that the mental-health evaluation. mental espionage, but there threat model is almost univer- have been reports of intrusion After sitting through mul- attempts where the pur- tiple sessions at ABA TECH- pose was to steal a valu- SHOW 2016 on privacy and able intellectual property surveillance, I now think or to otherwise compro- these thoughts could be a bit mise a business’ systems. more rational than I might Most of us recall the have considered. embarrassment suffered “Can They Hear Me Now? by Sony executives when Practicing Law in an Age of employees’ emails were Mass Surveillance” was the hacked and then pub- title of a fascinating presen- lished online. A law firm tation at ABA TECHSHOW would certainly not want 2016. The panel, moderated to be the weak link that by Above the Law’s David damages its client’s busi- Lat, included the principal ness in that way. technologist with the ACLU sal,” Wizner said. “You have to An observation that took Speech, Privacy and Technolo- think that every sophisticated most of the sophisticated gy Project Chris Soghoian, government in the world has TECHSHOW attendees by sur- digital rights attorney Marcia an interest into having visibility prise was Soghoian’s statement Hoffman and Ben Wizner, the into Edward Snowden’s com- that if you can reset your lost or lead attorney for NSA leaker munications. So you can’t forgotten password, then it’s Edward Snowden. If you are assume there’s anyone out not safe for attorney-client data. Edward Snowden’s attorney, it there who’s not trying.”1 I’m still digesting this observa- is fair to assume that everyone tion as I have always believed at NSA knows your name. it was more likely a lawyer

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 823 would lose a password then improve the security of your may cause adhesive to impair suffer an intrusion because of client’s digital data and your the camera lens when it is password recovery. If we have personal information. needed, but the Band-Aid can truly reached the point where be positioned so no adhesive BASIC SECURITY one cannot use a service that adheres to the lens. PRACTICES allows the user to reset a pass- Some of the security experts word, that is a significant shift. The mass surveillance panel- indicated that all lawyers I’m still not willing to discount ists agreed that use of pass- should be making encrypted the danger of law practices word managers, such as 1Pass- phone calls. I’m sure many of being devastated when a lost word or LastPass, is a very us have never thought about password locks up critical cli- important security measure. encrypting calls. One easy way ent information or all client The cost of these tools is rela- to make an encrypted phone files. tively nominal compared to the call is to use an iPhone’s Face- Whatever your personal benefit they deliver, and they Time app to call another opinion may be (and everyone allow us to create very long iPhone. The FaceTime call is seems to have an opinion) on passwords that could be almost encrypted. FaceTime has an the recent attempts by the U.S. impossible to crack. Left to our audio only function if for some Department of Justice to obtain own devices (and relying on reason you don’t want to do a a court order to require Apple our fallible memories) we cre- video call. The iMessages app to unlock an iPhone used by ate passwords that are short for the iPhone allows for one of the San Bernardino and easy to remember and also encrypted text messaging. shooters, it is clear that encryp- very insecure. Although if the receiving phone tion of confidential information There was an interesting dis- is not an iPhone, the message is a topic we will be dealing cussion during the panel over will not be encrypted. It is easy with for some time. Lawyers biometric password tools like a to tell the difference. If the text have compelling reasons for fingerprint scanner. Lawyers is a secure iMessage the bubble having the ability to encrypt are reminded that one may containing the words is blue in information and keep it hidden have a Fifth Amendment privi- color. If not, messages are being and secure. lege not to disclose statements communicated using the old Short Messaging Service, which Cindy Cohn, executive direc- like a password, but many displays a green color. tor of the Electronic Frontier opinions stand for the proposi- Foundation, gave the keynote tion that being forced to give If you want to start having address at ABA TECHSHOW, up fingerprints for identifica- encryption for all of your text which included many remarks tion purposes is not a violation messages no matter what type on the FBI versus Apple litiga- of the Fifth Amendment. Would of phone is used, the app Signal tion. She also discussed in the same logic apply to a fin- is one that can be installed to detail the Jewel v. NSA case2 gerprint being used to open an provide for secure messaging. where the EFF sued the NSA encrypted phone or laptop The Electronic Frontier Founda- over data collection efforts on computer? One Virginia circuit tion provides a secure messag- AT&T users. She said the prac- court has ruled that it does.3 ing scorecard online if you wish tices there amounted to the to do further research or look at The easiest security improve- 4 government collecting every- ment would likely surprise and other apps. Even if you are not thing and then sorting things scare some lawyers, particular- concerned about the issue, the out to see what it needed. She ly those who have children chart is quite interesting. further commented that such using computers at home. It My podcast teammate Sharon practice “…turns the entire was suggested that a Band-Aid Nelson, president of Sensei Fourth Amendment upside placed over the camera on a Enterprises Inc., indicated her down.” laptop was an easy security fix, favorite cybersecurity tip for Some of the information particularly if it was a laptop small law firms concerned noted above is controversial used by a child. There are many about their security was to visit and can be the subject of hacks that allow an intruder the National Institute of Stan- intense debate. But lawyers are to operate a laptop camera dards and Technology to down- duty bound to protect their cli- remotely without the camera’s load its publication, Small Busi- ent confidences. So let’s discuss “in use” light being activated. ness Information Security: The basic security practices to Using another kind of sticker Fundamentals.5 She says the

824 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 publication is short (only drive, it is important that this A cloud-based backup is usu- 24 pages in length) and easy- be a drive capable of being ally your best defense against to-read. password protected. Many law- ransomware, assuming there is yers just keep the portable hard more than one version of the CONFIDENTIAL DATA IN THE CLOUD drive connected to their com- data in the cloud. John W. puter at all times so backup Simek, vice president of Sensei Some lawyers have had con- happens concurrently. Enterprises Inc., gave presenta- cerns about storing data in the tions on data security at ABA However, with the advent of cloud. But many experts cau- TECHSHOW. He says law ransomware malware like tion that data is more likely firms doing their own in-house CryptoLocker, keeping a hard safer in secure cloud-based sites backup should avoid a backup drive attached to your comput- than on a computer or network process that includes drive er at all times provides no pro- that is not managed by an IT information because ransom- tection. Should your computer professional. I’ve always ware now attacks data associat- or network be infected by this believed there was more atten- ed with letter drives and net- type of ransomware, the porta- tion paid to security by provid- work shares. Agent-based back- ble hard drive will be encrypt- ers of cloud-based services ups are Simek’s preferred ed along with the rest of the designed for the legal profes- method of backup now. In his files on your computer and net- sion; however, it has been hard view, attorneys and IT depart- to find an objective standard ments should be having discus- supporting that belief. sions about these topics. Small- er firms with no in-house IT At ABA TECHSHOW, the staff are encouraged to use at Legal Cloud Computing Asso- …Legal Cloud least one cloud-based method ciation released the first set of of backup. cloud security standards craft- Computing ed specifically for the legal ENCRYPTING A LAPTOP industry today. These 21 stan- Association released COMPUTER dards were developed by the the first set of cloud I had a chance to learn more participating members of the security standards (and teach) about the Health association and then reviewed Insurance Portability and by a team of outside expert 6 crafted specifically Accountability Act (HIPAA) advisors. This should be an data protection at ABA TECH- enormously helpful tool for for the legal industry SHOW. I’ll be doing a short lawyers seeking a cloud-based today. update on this topic at the OBA service provider for services Solo and Small Firm Confer- ranging from practice manage- ence this summer. If you repre- ment to e-discovery. sent a health care provider you BACKUP IS A PART may be covered under HIPAA, OF SECURITY and if Protected Health Infor- work. A better plan is to attach mation (PHI) is inadvertently If you lose your computer the hard drive for periodic disclosed you may incur breach data, then your ability to serve backups and keep it discon- notification obligations that are and protect your clients is nected from any computer the both onerous and embarrass- impaired. Therefore, good rest of the time. Don’t forget ing. But if the PHI is encrypted, backup procedures are essen- that your best protection that qualifies for a safe harbor tial. Backup is so important against ransomware is careful to the HIPAA breach notifica- these days that many smart and repeated staff training tion rule. lawyers are employing dupli- stressing that personnel should cate methods of backing up be highly cautious about click- One of the more common their data, often with one off- ing on any email attachments HIPAA inadvertent disclosures site automated provider and or links contained in an email is the loss of a laptop computer. with another process of copy- from any source except very At a basic level all laptop coming important files to a portable trusted sources. If you have a puters should be password pro- hard drive. Since there will be concern, don’t hesitate to call tected. Encrypting a laptop so much client information con- someone and ask, “Did you computer is a very important tained on the portable hard really send this?” best practice if you are dealing

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 825 with HIPAA-covered PHI and a ommendation is that a single Whether your primary con- good idea for all types of con- encrypted folder may be suffi- cerns are government surveil- fidential information. cient for many users. lance or protection from online “bad guys,” it is important to BitLocker7 has been a part of Taking note of statistics be aware of security issues and the Windows operating system regarding the number of lost to protect your data so you can since it was included in select and stolen laptops, the 2016 recover it. If you ever encoun- editions of Windows Vista. It Solo and Small Firm Legal Tech- ter a problem, whether it is a can be used to encrypt an entire nology Guide: Critical Decisions crashed hard drive, a limited laptop hard drive or set up a Made Simple, further recom- online intrusion or a full-blown single encrypted folder. mends “whole-disk encryp- attack by a hacker, your obligation.”9 However the guide does Encrypting a laptop comput- tion to represent your client is not detail the means for accom- er is not without risk. unaffected by the technology plishing such encryption. issue, and you should always A January 2015 PCWorld post For Windows 10, a How-To take reasonable steps to avoid titled, “You Can Encrypt Your Geek post10 provides more such occurrences. Hard Drive, But the Protection detailed instructions on how to May Not Be Worth the Hassle,”8 Mr. Calloway is OBA Manage- accomplish encryption using provides a short summary of ment Assistance Program director. Bitlocker or third-party setups. the methods to encrypt your Need a quick answer to a tech computer. The author, while The best and most obvious problem or help solving a manage- acknowledging that full-disk advice is to not lose your lap- ment dilemma? Contact him at encryption is the most secure top. Personally, I never leave 405-416-7008, 1-800-522-8065 or measure and outlining the use my laptop in my vehicle unless [email protected]. It’s a free member of Bitlocker in Windows or it is locked in the trunk. benefit! third-party programs such as CONCLUSION Veracrypt, states, “Encrypting 1. As quoted in the ABA Journal coverage of the program, www.abajournal.com/news/ the entire drive can brick your Sadly, perfect digital security article/cybersecurity_experts_offer_stern_ PC. Make an image backup is not only a moving target but warnings_tips_for_security_in_mass-surve/. 2. www.eff.org/cases/jewel. first, and make sure you have also perhaps unattainable. You 3. Commonwealth v. Baust is 89 Va. Cir. 267 emergency repair drives for should follow best practices to (Va. Cir. Ct. 2014). 4. www.eff.org/secure-messaging-scorecard. both the encryption software have your computers and net- 5. csrc.nist.gov/publications/drafts/nistir and your image backup pro- works as secure as you possibly 7621- r1/nistir_7621_r1_draft.pdf. 6. The completed LCCA Security Stan- gram. . .That’s not all. Should can, but experts still say an dards are posted publicly for all to review at your computer or hard drive essential part of security is hav- www.legalcloudcomputingassociation.org/ crash, your chances of success- ing a plan to recover data and standards/. 7. en.wikipedia.org/wiki/BitLocker. fully recovering lost files drops files in case there is a breach. 8. The post is available at bit.ly/encrypt_ considerably.” Further, the post Hopefully this article did not your_drive. 9. 2016 Solo and Small Firm Legal Technology cautions that using Bitlocker cause too many readers to have Guide: Critical Decisions Made Simple, pg. 192. requires users to “know what their eyes glaze over or decide 10. bit.ly/Geek_Encryption. you’re doing.” As such, the rec- to give up in frustration.

LAWYERS CONQUER YOUR HELPING NO COST LAWYERS 24-HOUR M O U NTAI N ASSISTANCE CONFIDENTIAL PROGRAM ASSISTANCE

BURNOUT • DEPRESSION • ANXIETY SUBSTANCE ABUSE RELATIONSHIP CHALLENGES 800.364.7886 • WWW.OKBAR.ORG/LHL

826 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 ETHICS & PROFESSIONAL RESPONSIBILITY

Succession Planning and Your Personal Health Both Are Your Ethical and Moral Obligation By Joe Balkenbush

Here is another reminder questions and other helpful tions, so ask this one! Then use regarding your duty to imple- information. the forms provided and draft ment a succession plan. As at least the short form of the The planning guide can recently set out in an ethics succession plan. It, literally, be found in the password- counsel article and in the OBA will take less than an hour to protected my.OKBar part of E-News, it is both your ethical do a short form agreement. the OBA website. Just go to and moral obligation to pre- You must take the time to pre- www.okbar.org and scroll pare a succession plan. Your pare and implement your suc- down to log into your individ- failure to do so can be cata- cession plan. If you don’t, the ual account. Once you sign in, strophic, not only for your loved ones you leave behind look for the link in the lower clients and practice, but for will spend who knows how right of the page. your loved ones who are left long trying to close your prac- behind. tice. They will have already lost you; please don’t com- Case in point, within the last pound their grief. month two more OBA members passed away (one from You must HOW ARE YOU DOING? unknown medical reasons and take the time On at least an equally another from suicide). In each important subject, how are case, the decedent has left to prepare and you doing? Are you taking behind a wife and children. care of yourself? Are you tak- Neither attorney had prepared implement ing time to ensure that you are and implemented a succession your succession physically, mentally, emotion- plan. In each case, the widow ally and spiritually healthy? and/or children had to hire plan. counsel to represent them in Being aware is the first step. probating an estate. In each Pay attention to how you’re case, the widow is left to close feeling, what you are thinking a law practice. and how you react to stressful I desperately wish I could situations. Without question, Certainly, none of us want find the right words to moti- the attorney who recently took to leave that to our spouse, chil- vate every single attorney his own life was in an awful dren, parents or friends. reading this to prepare and place. Unless you’ve been implement a succession plan. If you didn’t already know, there, you wonder how some- The tragic consequences of not the OBA has prepared The one could get to that dark of a doing so are unacceptable. Attorney Transition Planning place without someone notic- Guide, a 79-page handbook The first step is to simply ing. So, take a moment and containing sample forms, ask an attorney friend to be assess your personal well- checklists, frequently asked your successor attorney. We’re being. Are you anxious, attorneys, we like to ask ques- depressed, irritable, lethargic,

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 827 don’t have any spunk? Be hon- flight state — is the “defini- • See your primary care phy- est with yourself. If you need tion of a legal career.” The sician for a full physical. help, it is available. Attorney human body wasn’t meant to And be sure to give your well-being is coming to the continuously face “five-alarm physician all the facts! As forefront all across the United fires.” This can lead to or lawyers, we urge our clients States. The ABA has created an exacerbate existing problems to tell us everything so that Attorney Well-Being Commit- with depression. we can properly assess their tee. It is working in conjunc- case. It’s the same with the Susan Daicoff, author of tion with the ABA Commis- physician. They cannot be Lawyer Know Thyself: A sion on Lawyer Assistance as effective in diagnosing Psychological Analysis of Programs (CoLAP) to raise your condition without all Personality Strengths and awareness regarding the men- of the facts. Physicians are Weaknesses, describes the tal, emotional, physical and trained to screen patients lawyer personality as being spiritual health of attorneys. for depression, and you ambitious, perfectionistic and might have medical issues Recently, numerous studies achievement-oriented, all of that are causing or contrib- have revealed that depression which can be contributors to uting to your depressed is a common ailment in our depression. mood. (When’s the last profession. The following are Martin Seligman wrote the time you had a full physi- some excerpts from an article book, Authentic Happiness: cal anyway?) titled “Depression: A Lawyer Using the New Positive Psy- Pandemic” written by Ruth • Talk with a friend. chology to Realize Your Poten- Carter for Attorney at Work, an tial for Lasting Fulfillment, that • If you are not comfortable online resource for attorneys includes a chapter titled, talking with a friend, call that provides “one really good “Why Are Lawyers So the Lawyers Helping idea every day.” You’ll find the Unhappy.” In it, he says that Lawyers hotline anytime at entire article at goo.gl/Q3omkp. having a “pessimistic explan- 800-364-7886 (remember, all In the article, Ms. Carter ref- atory style” is a benefit in contact with LHL is confi- erences a 2016 study by the an adversarial profession dential and privileged per ABA Commission on Lawyer because it helps you identify Oklahoma law). Assistance Programs and the problems, but it can also If you are diagnosed with Hazelden Betty Ford Founda- cause significant mental and depression, there are numer- tion that found that 28 per- physical problems. ous treatment options (thera- cent of lawyers have mild to DEALING WITH py, medication, support severe depression. Per her DEPRESSION groups, self-care, mindfulness, calculations, that’s 336,000 etc.). There is no one single lawyers! Additionally, 46 per- You don’t have to be a rocket way to deal with it, there’s just cent of lawyers reported scientist to know that untreat- what’s best for you! concerns about depression ed depression can cause grave sometime during their legal problems. Depression is a The bottom line is that you career. Of the lawyers who diagnosable and treatable ill- have got to take care of your- experience depression, ness. As lawyers, we are prob- self. No one else is going to do 60 percent of them also lem-solvers! So, take the neces- it for you. Take total responsi- have anxiety. sary steps to take care of this bility for your own well-being. illness. Here are some ideas: You are worth it! Dan Lukasik, founder of Lawyers with Depression, • Educate yourself about Mr. Balkenbush is OBA ethics says depression is at “cata- depression. There are won- counsel. Have an ethics question? strophic” and “pandemic” derfully informative books, It’s a member benefit and all levels in the legal industry. websites and other resourc- inquires are confidential. Contact He went on to say that being es focused on the topic. Do him at [email protected] or 405- in a state of “chronic perpet- some research! 416-7055; 800-522-8056. ual stress” — constantly experiencing the fight-or-

828 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 BOARD OF GOVERNORS ACTIONS Meeting Summary

The Oklahoma Bar Association Reading Day, ABA Annual of Court Pupilage Group meet- Board of Governors met at the Meeting and House of Dele- ing and discussion regarding Oklahoma Bar Center in Okla- gates in San Diego, National “Representing the Unpopular homa City on Feb. 19, 2016. Conference of Bar Presidents Client,” Quality Assurance REPORT OF THE meeting, Southern Conference Panel meeting, ABA NCBF PRESIDENT of Bar Presidents meeting, Fast- Midyear Meeting in San Diego, case partner appreciation din- OBA Master Lawyers Section President Isaacs reported he ner and Oklahoma delegate meeting, OBA Family Law Sec- attended a planning session for dinner. tion meeting via teleconference at OSU-Tulsa, TCBA Family 2017, OBA Legislative Reading REPORT OF THE Day, ABA Midyear Meeting EXECUTIVE DIRECTOR Law Section meeting and TCBA and House of Delegates in San Board of Directors meeting. Diego, National Conference of Executive Director Williams Governor Hicks reported he Bar Presidents meeting, South- reported he attended the attended the Tulsa County Bar ern Conference of Bar Presi- National Association of Bar Foundation Board of Trustees dents meeting, Fastcase partner Executives meeting, monthly meeting and Access to Justice appreciation dinner, Oklahoma staff celebration, committee Commission teleconference delegate dinner, Custer County meetings at the state Capitol, meeting. Governor Hennigh Bar Association meeting, OCU Access to Justice Commission reported he attended OBA Leg- School of Law dinner at the phone conferences, Legislative islative Reading Day and the Oklahoma Judicial Center and Reading Day, YLD dinner in YLD dinner in Stillwater. He Oklahoma Close Up Program. Stillwater, swearing in of new also sent emails and had lunch with state representatives. REPORT OF THE officers and board members, Governor Hutter reported she PRESIDENT-ELECT staff directors and department heads presentation for new attended the Cleveland County President-Elect Thomas board member orientation, Bar Association executive meet- reported she attended a plan- ABA meeting with its legal ing, monthly meeting, bench ning session for 2017 with OBA insurance committee holding and bar meeting in addition to past presidents, two Washing- a meeting in Oklahoma City, the county bar’s Justice is ton County Bar Association conferences with the OBA soft- Sweet Charity Baking Event, meetings, OBA Legislative ware provider, meeting with which she organized and Reading Day, ABA Annual Lawyers Helping Lawyers chaired. She also attended Meeting and House of Dele- Assistance Program provider, OBA Legislative Reading Day gates in San Diego, National OETA 60th Anniversary and the funerals of Judge Conference of Bar Presidents Planning Committee meeting Tom Lucas and OBA member meeting, Southern Conference and Stonewall McLish School Joe Barr. Governor Kee report- of Bar Presidents meeting, Foundation. ed as the liaison to the Law Schools Committee, he attend- Fastcase partner appreciation BOARD MEMBER REPORTS dinner, Oklahoma delegation ed committee visits to the OU dinner and telephone confer- Governor Coyle reported he College of Law and the TU Col- ence with Access to Justice attended two Oklahoma Crimi- lege of Law. Governor Kinslow Commission Chair David nal Defense Lawyers Associa- reported he attended Coman- Riggs. tion meetings and taught twice che County Bar Association at OCU School of Law as a meetings. Governor Marshall REPORT OF THE reported he attended the Pot- PAST PRESIDENT guest speaker. Governor Got- wals reported he attended the tawatomie County Bar Associa- Past President Poarch report- Tulsa County Bar Foundation tion meeting. Governor Porter ed he attended OBA Legislative Board of Trustees meeting, Inns reported she attended the OBA

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 829 Communications Committee mote the conference to young ing to promote juror apprecia- meeting, OBA Legislative Read- lawyers in their counties. The tion. Governor Tucker reported ing Day, Oklahoma Board of conference will offer a program the Law Day Committee Tests for Alcohol and Drug track on basics and will be received 691 entries in its con- meeting, William J. Holloway promoted as a family vacation test. Judging will take place at Jr. Inn of Court meeting and opportunity. His goal is to have the end of the month. He and Canadian County Bar Associa- 20 more YLD members, in addi- Oklahoma City attorney Jenni- tion meeting. She met with one tion to YLD board members, fer Castillo will chair the Law of the Women in Law Commit- attend the event. Day Committee’s Juror Appre- tee co-chairs and served as ciation Subcommittee, which scoring panelist for a qualifying NEW STAFF MEMBER wants to reach out to court INTRODUCED round of the OBA High School clerks for their ideas. He said Mock Trial Program. Governor Executive Director Williams TV show taping continues, and Sain reported he attended the called on Management Assis- segment topics are female McCurtain Memorial Founda- tance Program Director Jim incarceration, same-sex mar- tion board meeting. Governor Calloway, who introduced his riage and juror appreciation. Tucker reported he attended new employee, Darla Jackson, the Law Day Committee meet- Governor Hicks reported OBA practice management the Access to Justice Committee ing, Muskogee County Bar advisor. She will work with Association monthly meeting is working on getting pro se him to provide assistance to forms out to courthouses. and met with the Law Day attorneys in using technology Juror Appreciation Subcommit- Administrative Office of the and other tools to efficiently Courts Director Jari Askins is tee co-chair about the program. manage their offices. Her focus Governor Weedn reported he involved in the project that will will be increasing training make the form available online. attended the Ottawa County opportunities for OBA mem- Bar Association monthly meet- Governor Hutter reported the bers and their support staff as ing. He served as a mock trial OBA Legislative Reading Day well as supporting access to judge for Missouri Southern sponsored by the Legislative justice initiatives. State University and as a scor- Monitoring Committee was ing panelist for the OBA High BOARD LIAISON REPORTS very well attended. Governor School Mock Trial Program at Gotwals reported the Profes- the trial site in Mays County. Governor Kee reported the sionalism Committee is plan- Law Schools Committee con- ning a symposium this year REPORT OF THE YOUNG ducted visits to the OU College and is searching for a speaker. LAWYERS DIVISION of Law and TU College of Law. The committee received posi- Governor Will reported he A visit to OCU School of Law tive feedback from giving new chaired the January YLD board will take place in March. lawyers a book about ethics meeting in Stillwater at which Governor Coyle reported the written by Tulsa attorney Fred they had a speaker. It is his monthly Lawyers Helping Miller at the last swearing-in goal to have a speaker at every Lawyers Assistance Program ceremony. The committee board meeting. He traveled to discussion groups are being would like to continue that San Diego for the ABA Midyear well attended. Governor Porter practice with this book or one Meeting where he also attended reported the Women in Law written by Oklahoma City the ABA YLD Midyear Meeting Committee is starting to work attorney Mike Turpen. Past and Assembly, hosted the Okla- on conference ideas and creat- President Poarch reported the homa ABA delegates dinner ing subcommittees. The Law- Communications Committee and attended the ABA House of related Education Committee is authorized expenditures to Delegates meeting. The division researching bringing back the support juror appreciation, will assemble bar exam surviv- Teacher of the Year Award. The online consumer brochure pro- al kits for a larger than usual OBA’s LRE Program will soon motion and Law Day efforts. host the four-day Oklahoma spring group. He also reported REPORT OF THE the division is trying to encour- Close Up Program for high GENERAL COUNSEL age more of its members to school students. The program is attend the upcoming Solo & designed to strengthen knowl- General Counsel Hendryx Small Firm Conference. Letters edge of the political process. reported annual reports of the will be sent to county bar presi- President Isaacs reported the Professional Responsibility dents asking them to help pro- Law Day Committee is work- Commission and Professional

830 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 Responsibility Tribunal were AMENDMENT TO OETA FESTIVAL filed with the Supreme Court. RULES CREATING AND The reports are available online CONTROLLING THE OBA Communications Director and will be published in the Manning briefed the board on The board approved the March 12, 2016, Oklahoma Bar this annual event that benefits drafting of an amendment to Journal. A written report of PRC the state’s PBS television sta- Article II, Section 2(b), that actions and OBA disciplinary tion, which works with the directs the price of an annual matters for January was sub- OBA to produce the Ask A subscription to the Oklahoma mitted to the board for its Lawyer TV show. The OBA tra- Bar Journal be $25 for a senior review. ditionally ranks in the highest member. Production costs now donor level for raising private PROFESSIONAL exceed $25. Motion passed. donations. She said additional RESPONSIBILITY AMENDMENT TO volunteers were needed to COMMISSION take pledges on the evening APPOINTMENT LITIGATION SECTION BYLAWS of March 9. The board approved Presi- NEXT MEETING dent Isaacs’ appointment of The board approved an Richard Stevens, Norman, to amendment to the Litigation The Board of Governors met fill the unexpired term of Linda Section Bylaws that corrects a March 7, 2016, and a summary Thomas, whose term expires typo in the section dues, which of those actions will be pub- Dec. 31, 2017. should be $25 per year. lished after the minutes are LEGISLATIVE UPDATE approved. The next board meeting will be 10 a.m. Friday, Executive Director Williams April 22, 2016, at the Oklahoma reviewed the recent attorney Bar Center in Oklahoma City. general opinion and briefed board members on current legislative activity.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Judge for Oklahoma Court of Civil Appeals District Four, Office One This vacancy is created by the resignation of the Honorable William C. “Bill” Hetherington effective September 2, 2016. To be appointed to the office of Judge of the Court of Civil Appeals, one must be a legal resident of the respective district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointees shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net under the link to Programs, then Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applica- tions must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, April 29, 2016. If applications are mailed, they must be postmarked by mid- night, April 29, 2016. John H. Tucker, Chairman Oklahoma Judicial Nominating Commission

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 831 OKLAHOMA BAR FOUNDATION

Grantee Spotlight: Marie Detty Youth & Family Services From Victim to Survivor By Candice Jones

Imagine you are a victim of You have minutes (maybe sec- violence in your own home. onds) to flee. You must act fast! Your perpetrator is someone There is no time to pack, no you thought loved and cared time to plan, barely time to for you. Someone who at one think. You tell yourself, “Do with just the shirt on her back, time made you feel safe and this for your child… you must holding the hand of her child, secure. Someone you call fami- get your child out of this situa- scared and unsure of the next ly. This is a person you love, tion!” Grabbing your child’s step. It is the mission of Marie but someone who frightens small trembling hand, you Detty Youth & Family Service you. Every day you live in con- reach for the door… pause for a Center Inc. to provide a contin- stant fear… you never know moment… step your foot across uum of care for the children, when your abuser will snap. the threshold… and run! You youth and families of south- You worry the anger they have run away from the victim you west Oklahoma from its Law- toward you will eventually be once were and toward the sur- ton facility. Prevention, diver- directed toward your child. vivor you must now become. sion, protective and treatment One day your abuser leaves the services establish the corner- house, and you’ve had enough. When escaping abuse, a stone of intervention, and the woman is often forced to flee staff of Marie Detty serve as advocates on behalf of children, youth and families on issues impacting our communities. Last year, Marie Detty provided assistance to a staggering 5,067 clients. Marie Detty provides numerous services to victims of violence. First, they serve as a safe place and provide basic needs such as emergency shelter, food, clothing and toiletries. They also provide counseling services, case management, support groups, special services for children, court advocacy and a sexual assault response Volunteers staff a display creating awareness of Sexual Assault Aware- team available 24 hours a day, ness Month. Individuals impacted by sexual assault come by and place a 7 days a week. The organiza- ribbon on the tree for themselves or someone they know.

832 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 tion also runs a 24-hour hotline for victims. The Oklahoma Bar Founda- tion provides funding to fulfill a critical legal component at Marie Detty, the salary for a court advocate. The court advocate works five days a week at the Comanche County Court- house from morning until noon. This dedicated individual is responsible for assisting victims by helping obtain victim protection orders, supporting victims during court proceedings by helping them navigate Silhouettes displayed at a mall illustrate sexual assault survivors. the court system and serving as a liaison to ensure judges tions. Ms. Detty had a lifelong HOW YOU CAN HELP receive valuable information involvement in helping others Your support of the Oklaho- related to the victims’ case. overcome difficulties. In her ma Bar Foundation allows us to The court advocate also works 30-year career in Oklahoma help organizations like the closely with the sexual assault Public Welfare, Marie Detty Marie Detty Center. Consider victim advocate to make sure pushed for serious change in becoming a Fellow if you are clients are aware of their legal how women are seen in leader- not already. More information options. ship roles, how children are can be found on our website at cared for in our society and Over the past eight years, the www.okbarfoundation.org. Oklahoma Bar Foundation has how a community responds to provided $108,000 in funding to its most vulnerable citizens. Marie Detty’s Court Advocate We are thankful for Marie About The Author Program assisting on average Detty’s commitment to victims more than 700 victims with of domestic violence, women, Candice Jones their cases each year. children and families. We are is director of Ms. Marie Detty, for whom proud of the staff’s passion to development and the center is named, was a fulfill the purpose and mission communications supervisor in Child Welfare set forth by Marie Detty on a for the Oklahoma Services in the 1960s and 1970s. daily basis. We are very hon- Bar Foundation. She saw the problems many ored to call them one of our young people were dealing grantees. with and sought to find solu- clients helped in 2015 by Marie Detty 5,067 Youth & Family Services provided by Oklahoma Bar Foundation $108,000 for Court Advocate Program Court advocate assists with more than victims’ cases per year 700

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 833 834 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 YOUNG LAWYERS DIVISION

What is Law Day All About? By Bryon J. Will

Law Day is the one day of the PAST LAW DAY PROJECTS year in which we as citizens Community service is usually reflect on the role of law and the primary focus of Law Day how its effects are important in activities, and for the OBA YLD our society. OBA Past President these efforts have often contin- Hicks Epton conceived the idea ued beyond Law Day into May. of Law Day, and in 1958 Presi- dent Eisenhower proclaimed In 2010, YLD board members Law Day nationally. Setting and execs teamed up with local aside May 1 for the annual cele- libraries throughout the state bration took place in 1961 with and provided services needed a Joint Resolution of Congress. at the time — from painting and cleaning facilities to read- Since then, the American Bar ing to children. That year the Association has lead the nation- YLD also donated books on al campaign with the Oklaho- legal topics to the libraries. ma Bar Association leading the campaign for our great state. In 2012, YLD board members Throughout the years the coun- Volunteers from the Garfield and execs teamed up with local ty bar associations have taken County Bar Association rear- schools throughout the state to on active roles by organizing range several areas of the Enid educate high school seniors on county bar activities and per- Public Library in 2010. the transitions into adulthood forming community service in and the legal matters which observance of Law Day. In fact, dent Isaacs is going further in they need to be aware of. The as a part of our OBA Annual bringing aware-ness of the YLD also provided the OBA Meeting awards, the Hicks importance of juries by holding publication, You’re 18 Now – Epton Law Day award is pre- a Juror Appreciation Month It’s Your Responsibility!, to the sented to the county bar associ- later in the year. students they visited. ation that holds the best Law Day activities and participation that year. This year the OBA’s 2016 Law Day theme is “Judges, Juries and Justice: The Constitution and the Rights of the Accused.” This theme’s focus is on educat- ing the public on these aspects and their importance in our society of liberty, justice and equality under law. Feel free to take some time to read the poster and materials produced Students at Shawnee High School listen as OBA YLD members by the OBA on this year’s present information geared toward graduating seniors approaching theme at goo.gl/UFTV3H. their 18th birthday as part of the division’s 2012 Community Day Along with this theme, Presi- of Service.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 835 In 2013, the OBA held a statewide community service project in which OBA members participated in a community service project in almost each county in Oklahoma. The YLD joined in this project by reaching out to YLD members across the state to participate in the counties in which they lived. UPCOMING PROJECTS 2013 OBA President Jim Stuart (left) thanks OBA YLD members Should you wish to get infor their Day of Service volunteer efforts at Love Link Ministries in volved in a Law Day activity, Oklahoma City. YLD members (from left of President Stuart) are whether it be with the OBA or Jeff Trevillion, Gabe Bass, YLD Chair Joe Vorndran and Immediate with your local county bar Past Chair Jennifer Castillo. association, I urge you to contact the OBA Law Day Commit- do a community service project tee or your county bar associa- immediately thereafter with About The Author tion’s Law Day chair. You’ll Loaves & Fishes, a Regional find the list of chairpersons Bryon Will prac- Food Bank resource center. tices in Oklahoma in this issue and online at Please contact me for further City and serves as www.okbar.org. details. the YLD chairper- For the YLD board meeting son. He may be con- Till next month. tacted at bryon@ on May 21, we will be gather- bjwilllaw.com. ing in Enid for the meeting and

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Fifth Judicial District, Office 3 Comanche County This vacancy is due to the retirement of the Honorable Keith B. Aycock effective July 1, 2016. To be appointed to the office of District Judge, Fifth Judicial District, Office 3, one must be a legal resident of Comanche at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net under the link to Programs, then Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applica- tions must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, April 29, 2016. If applications are mailed, they must be postmarked by mid- night, April 29, 2016. John H. Tucker, Chairman Oklahoma Judicial Nominating Commission

836 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 FOR YOUR INFORMATION

OBA Members Raise Funds for OETA The OBA raised nearly $7,000 in private donations as part of its volunteer effort to support the state’s PBS-TV station during the annual OETA Festival. President Garvin Isaacs presented a check to the station, which partners with the bar association to produce the annual Ask A Lawyer TV show. The amount donated keeps the OBA at one of the top sponsorship levels that is recognized in the station’s monthly programming guide. Many thanks to those who made financial contributions and to the 22 OBA members and staff who volunteered. This year’s volunteers were OBA President Garvin Isaacs, OBA Executive Director John Morris Williams, Judge Richard Kirby, Jerrod Geiger, Michael Shan- bour, Margaret Travis, Brittany Jewett, Mark Koss, Edward Oliver, Max Rhodes, Charles Rouse, Ricki Sonders, Kim Stevens, Rex Travis, Mary Travis, Richard Vreeland, OBA President-Elect OBA member and on-air personality Kim Brasher inter- Linda Thomas, Craig Hoehns, Ernest views President Isaacs about Law Day and the upcoming Nalagan, Barbara Stone, Cliff Elliot Ask A Lawyer event and TV show. and Noel Tucker.

LHL Discussion Group to Host April Meeting Students Participate in Oklahoma Close Up “Dealing with Technology Overload” will be the topic of the Program May 5 meeting of the Lawyers Helping Lawyers monthly discussion group. Each meeting, always the first Thursday of the Ninety high school stu- month, is facilitated by committee members and a licensed men- dents from across Oklaho- tal health professional. The group meets from 6 to 7:30 p.m. at the ma attended the OBA LRE office of Tom Cummings, 701 NW 13th St. Oklahoma City. There Oklahoma Close Up Pro- is no cost to attend and snacks will be provided. RSVPs to Kim gram the week of Feb. 16. Reber, [email protected], are encouraged to ensure there Oklahoma Close Up is a is food for all. week-long educational program designed to provide students an experien- tial learning opportunity about Oklahoma state government. Students spent the week learning about the executive and legislative branches of government, shadowing state representatives, senators and other state elected officials, attending a Court of Crim- LAWYERS HELPING LAWYERS inal Appeals case and ASSISTANCE PROGRAM touring the Capitol. Call 24/7 — 800-364-7886

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 837 Another Successful OBA Day at the Capitol Bob Burke, OBA member and author of How Bad It Was — How Good It Is: The Value of an Independent Judiciary, spoke on the importance of keeping our courts fair and impartial during this year’s OBA Day at the Capitol on March 8. More than 40 members attended the event. In addition to hearing Bob Burke speak, attendees also heard from several speakers on a variety of topics before meeting with legislators at the Capitol during the afternoon. Speakers were OBA Executive Director John Morris Williams, Administrative Director of the Courts Jari Askins, OBA Legislative Liaison Clay Taylor, Oklahoma Ethics Commission Executive Direc- tor Lee Slater, OBA Past President Cathy Chris- tensen and OBA MAP Director Jim Calloway. Bob Burke, author and attorney, speaks on the importance of keeping our courts fair and impartial at OBA Day at the Capitol.

OBA Member Resignations The following members have resigned as members of the association and notice is hereby given of such resignation:

Griffin McKay Hazard Claire McNearney Trinidad OBA No. 31080 OBA No. 11428 571 S. 1030 E. 18700 Slick Road Smithfield, UT 84335 Kellyville, OK 74036 Wesley Mack Hightower Tanya Briana Spavins OBA No. 22833 OBA No. 17450 Blaies & Hightower LLP 104 Green Meadow Court 421 W. 3rd St., Ste. 900 Hot Springs, AR 71901 Aspiring Writers Take Note Fort Worth, TX 76102 We want to feature your work on “The Back Page.” Submit Connect With the OBA Through Social Media articles related to the practice of law, or send us something Have you checked out the OBA Facebook page? It’s a humorous, transforming or great way to get updates and information about upcoming intriguing. Poetry is an option events and the Oklahoma legal community. Like our page at too. Send submissions no more www.facebook.com/OklahomaBarAssociation and be sure than two double-spaced pages to follow @OklahomaBar on Twitter. (or 1 1/4 single-spaced pages) to OBA Communications Director Carol Manning, [email protected].

838 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 BENCH & BAR BRIEFS

from the OU College of Law he OU College of Law in 1983. Thonored four distin- guished alumni at its annual he International Masters Order of the Owl Hall of of Gaming Law (IMGL) T Fame ceremony: Lawton busi- board of directors recently ableGotwals announced nessman and entrepreneur elected Crowe & Dunlevy the 2016 slate of officers Bill W. Burgess Jr., whose G Tulsa lawyer D. Michael and directors as follows: public service to higher edu- McBride III as second execu- David Keglovits, chair; Sid cation spans two decades; tive vice president for the Swinson, president; Terry Supreme Court Justice Tom organization. He previously Ragsdale, vice president firm Colbert, the first African- served as IMGL treasurer growth; John Dale, vice presi- American to serve on the and graduated from the OU dent talent development; Oklahoma Supreme Court College of Law in 1993. Amy Stipe, vice president and to be sworn in as vice finance; Dale Cottingham, he National Academy of chief justice and chief justice secretary; Rob Robertson and TElder Law Attorneys and the first African-Ameri- Scott Rowland, members. (NAELA), an association of can to be appointed to the harlie Daniels was elect- attorneys dedicated to Oklahoma Court of Civil Ced president of the Op- improving the quality of legal Appeals; Jim Gallogly, an portunity Scholarship Fund, a services provided to older industry leader who trans- scholarship granting organi- Americans and individuals formed companies experienc- zation under the Oklahoma with special needs, an- ing challenges into successful Equal Opportunity Education nounced that Donna J. Jack- international businesses; Scholarship Act. He is also son has joined the 2016-2017 Supreme Court Justice Noma chairman of OK Mozart, NAELA Board of Directors. D. Gurich, a leader in the whose mission is to bring the She received her J.D. from the legal profession and only the highest quality professional OCU School of Law in 1988. third woman in history musical and cultural experi- to serve on the Oklahoma aul George was inducted Supreme Court. The Order ence to the citizens of the into the Honorary Ser- Bartlesville area, state of P of the Owl recognizes OU jeant’s Inn of Court at the law graduates who demon- Oklahoma and the mid- annual joint meeting of DFW America region of the United strate leadership and service American Inns of Court at the through outstanding accom- States. He graduated from the Belo Mansion in Dallas on OU College of Law in 1965. plishments in their legal Jan. 12. The Serjeant’s Inn was careers. he Boy Scouts of America established in 2002 by three Thonored Associate Dis- DFW inns. Each local inn he Litigation Counsel of trict Judge Tom Newby at the annually nominates one new TAmerica (LCA) recently annual Cimarron Council Serjeant’s Inn member, who named Crowe & Dunlevy Good Scout Luncheon on Feb. must be a master in the spon- attorneys Kevin D. Gordon, 23. He received the North soring inn and have a career Mack J. Morgan III, Judy Star award for his support of of significant contributions to Hamilton Morse, Terry scouting, as well as other the profession and the com- M. Thomas and John M. organizations in Enid and the munity. Mr. George has been Thompson as senior fellows, surrounding area. The North a master in Fort Worth’s and attorney Brooke S. Mur- Star award is the highest Eldon Mahon Inn since 1999 phy as a fellow. The LCA, an award a local Boy Scout and is the 15th Fort Worth invitation-only trial lawyer council can bestow for signif- lawyer or judge to be hon- honorary society, is composed icant contributions to scout- ored. He received his J.D. of 3,500 fellows nationwide. ing. Judge Newby graduated from the TU College of Law in 1978.

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 839 experience in the areas of their respective practices pro- family law, probate and estate viding legal services to their planning, guardianships, gen- long-standing clients. eral litigation and appellate ray Walker PC announced work. She earned her law the promotion of Robert degree from Georgetown Uni- P Mitchener III to shareholder. versity Law Center. Ms. Ghani Mr. Mitchener joined Pray joined Jones, Gotcher & Bogan umphreys Wallace Hum- Walker in 2009. He obtained as a law clerk in July 2014, phreys PC welcomes his J.D. from the TU College H and became an associate of Heather Munzuris as an of Law in 2010 with honors. the firm in September 2015. associate attorney. Her prac- His practice is focused on She graduated from the TU tice will focus on consumer general civil litigation primar- College of Law in 2015. She protection law, specifically ily in the areas of business, will be focusing her practice automobile dealer fraud. She real estate, employment and in the areas of civil litigation earned her J.D. from the OU energy law. College of Law and was and domestic law. oyers Martin announced admitted to practice before ichael F. Lauderdale, a the return of R. Scott the state courts of Oklahoma shareholder with M M Savage to the firm and wel- in 1996. McAfee & Taft has been elect- comes Quinn A. Cooper as a ed to lead the law firm as its ulsa law firm Atkinson, new addition to the firm. Mr. managing director. The Haskins, Nellis, Brit- Savage returns to Moyers T Muskogee native joined tingham, Gladd & Fiasco Martin with 37 years of legal McAfee & Taft in 1990 after announced that Meredith D. experience. His areas of prac- graduating with distinction Lindaman, Keith B. Bartsch tice are civil litigation with from the OU College of Law. and J. Andrew Brown have an emphasis on contracts, Throughout the course of his become partners in the firm. employment issues, environ- 26-year career with the firm, Ms. Lindaman graduated mental cases, oil and gas and he has served as co-leader of from the TU College of Law real estate. He also represents the firm’s labor and employ- in 2008 and her practice is individual clients in matters ment practices and, more focused on professional neg- concerning severe personal recently, as a member of its ligence, premises liability, injury and economic loss. Board of Directors. The firm complex tort matters and He graduated from the OU also announced that trial insurance litigation. Mr. College of Law in 1978. Ms. attorney Paige Hoster Good Bartsch graduated with hon- Cooper represents clients has joined its labor and ors from the TU College of in a variety of legal matters employment group. Her prac- Law in 2008 and his practice including business litigation, tice encompasses all phases of emphasizes general civil liti- business transactions and labor and employment law, gation, insurance defense, general civil litigation, and including litigation in both personal injury and Indian her practice is focused broad- state and federal courts, regu- law. Mr. Brown received his ly in the area of civil litigation latory and administrative law degree from the TU Col- with an emphasis on insur- agencies, arbitration panels lege of Law in 2009 and ance defense. She graduated and a broad range of other focuses his practice in insur- from the TU College of Law workplace issues. Ms. Hoster ance defense, civil litigation, in 2015. medical malpractice defense graduated with honors from and bad faith defense. the OU College of Law in rowe & Dunlevy recently 2013. Cannounced former U.S. ones, Gotcher & Bogan PC attorney for the Western Dis- randen, Farris, Quillin, Jannounces Maren Minnaert trict of Oklahoma Sanford C. Goodnight + Roberts Lively was named a partner F Coats has joined the firm as a announced that Stephen and director of the firm and director in the Oklahoma City Wilkerson and Mark the addition of Khadija K. office. He serves as co-chair Warman have joined the firm. Ghani as an associate of the of the firm’s white collar, Mr. Wilkerson and Mr. firm. Ms. Lively joined Jones, compliance and investiga- Warman will serve of counsel Gotcher & Bogan in Decem- tions practice group and is a to the firm and continue in ber 2014, and has extensive member of the litigation and

840 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 trial practice group. Mr. Coats is focusing his practice pri- ynne Driver recently received his J.D. from the OU marily on the research and L spoke at an exclusive College of Law in 1998. The writing needs of the firm. He Bond Attorneys Winter firm also announced the addi- graduated from the TU Col- Conference in Palm Beach, tion of J. Blake Johnson, lege of Law in 2011. Florida. She delivered a chal- Harry “Skeeter” Jordan and lenging presentation on the ndrews Davis announced Melissa McDuffey as attor- Security Exchange Commis- that Ryan J. Duffy has neys in the firm’s Oklahoma A sion’s Municipalities Continu- been elected as a shareholder City office and Alexandra ing Disclosure Cooperation of the firm. Mr. Duffy joined Shipley as an attorney in the Initiatives and Issuers. She is the firm in 2010 bringing with Tulsa office. A member of the a 1993 graduate of the OU him experience in the areas firm’s litigation and trial, College of Law and holds an of estate planning and admin- Indian law and gaming and LL.M (taxation) with distinc- istration, federal and state product liability practice tion from Southern Methodist tax, corporate organization, groups, Mr. Johnson received University, 1995. transactional law, real estate, his J.D. from the OU College securities, nonprofit organiza- hris Paul made a presen- of Law in 2015. Mr. Jordan tions, commercial litigation tation on legal exposures has joined the firm’s intellec- C and probate. His practice con- at the NACE Pipeline Safety tual property and litigation tinues to focus on these areas Culture Forum in Vancouver, and trial practice groups. He with a specific concentration British Columbia, which received his J.D. from the OU on tax controversies and included panel members College of Law in 2015. Ms. business development. He Peter Watson, chair of the McDuffey is a member of the received his J.D. from the Canadian National Energy labor and employment and OU College of Law in 2006. Board and Alan Mayberry, litigation and trial practice deputy associate administra- groups. She graduated from tor for policy and programs the OU College of Law in of Pipeline and Hazardous 2015. Ms. Shipley is a mem- Materials Safety Administra- ber of the energy, environ- tion. He graduated from the ment and natural resources College of William & Mary and litigation and trial prac- School of Law in 1983. tice groups. She received a J.D. from the OU College of aul R. Foster presented Law in 2015. athryn Burnett spoke at P“Dynamic Interactive the Tulsa County Bar Question and Answer” panel teidley & Neal PLLC has K Association Law Section of bankers and regulators announced Douglas R. S Meeting on Feb. 17. She dis- from the Federal Reserve, Scott has been named as a cussed recent revisions to the FDIC, OCC, Oklahoma State partner in the firm and Seth Stark law exceptions. She Banking Department and A. Caywood and Charlie L. graduated from the College of New Mexico Financial Insti- Reese V as associates in the William & Mary Law School tution Division at the Com- firm. Mr. Scott focuses his in 2007. munity Bankers Association practice on insurance defense of Oklahoma’s Winter Lead- litigation. He has successfully arty Ludlum recently ership Conference in Santa defended various types of Mmade several presenta- Fe, New Mexico, Feb. 10-12, civil cases including automo- tions to Arcada University of which included attendees bile accidents, slip and falls, Applied Sciences in Helsinki, from Oklahoma, New Mexico dog bites, insurance coverage Finland. His presentations and Texas. He graduated and civil rights. He graduated were titled “The Transatlantic from the OU College of Law from the OU College of Law Partnership and Investment in 1984. in 2004. Mr. Caywood’s prac- Program,” “Intercultural tice is concentrated primarily Trade” and “Intellectual Prop- arrie L. Foster presented in the areas of personal injury, erty and International Trade.” C“Avoiding Common and workers’ compensation and He received his J.D. from the Potentially Costly Mistakes general liability defense. He OU College of Law in 1989. by Banks on Garnishments, graduated from the TU Col- Levies, & Legal Process” at lege of Law in 2011. Mr. Reese the Community Bankers

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 841 Association of Oklahoma’s you’ve moved, become a part- (Oklahoma-based publications Winter Leadership Confer- ner, hired an associate, taken are the exception.) Information ence focusing on consider- on a partner, received a promo- selected for publication is ation for banks that receive tion or an award, or given a printed at no cost, subject to out of jurisdiction legal pro- talk or speech with statewide editing, and printed as space cess. She received her J.D. or national stature, we’d like permits. from the OU College of Law to hear from you. Sections, Submit news items via email to: committees, and county bar in 1985. Laura Stone associations are encouraged Communications Dept. How to place an announce- to submit short stories about Oklahoma Bar Association ment: The Oklahoma Bar Journal upcoming or recent activities. 405-416-7018 welcomes short articles or Honors bestowed by other [email protected] news items about OBA mem- publications (e.g., Super Law- bers and upcoming meetings. yers, Best Lawyers, etc.) will not rticles for the Aug. 20 issue If you are an OBA member and be accepted as announcements. Amust be received by July 18. IN MEMORIAM

enny Rebecca Ebersole- mission. Besides practicing attended OU. After an inter- JFoster died March 29. She law, he enjoyed spending time ruption of several years for was born Dec. 26, 1973, in El with his family, playing golf service in the USAAF during Paso, Texas, and grew up in and finding a joke in every World War II as a pilot of a Houston, Newburgh, Indiana, conversation. B-24 Liberator, he graduated and Pittsburgh. She received a with a B.A. in 1947 and an udge Mike McDanel of Bachelor of Arts (cum laude) in LL.B. in 1948. Mr. Moler was Norman died Feb. 21. He English from Clarion Univer- J engaged in private practice was born Dec. 13, 1943, in sity in Pennsylvania and from 1948 until 2008 and was Norman and attended Nor- received a J.D. from the TU an assistant municipal coun- man High School. Judge College of Law in 1999. She selor for the City of Oklahoma McDanel then attended the practiced law in Oklahoma City from 1952 until 1959. He OU College of Law, starting and Tennessee. In lieu of flow- served as president of the in 1964 but leaving in 1966 ers, please make memorial Oklahoma County Bar Asso- to join the Navy where he contributions to St. Andrew’s ciation in 1968 and was hon- served as a hospital foreman Episcopal Church, 314 W. ored in 2008 as the longest before becoming a Bombar- Broadway Ave., Maryville, TN running member. dier navigator. While in Viet- 37801 or Smoky Mountain nam, he flew more than 70 avid G. Probst Animal Care Foundation, P.O. of Okla- combat missions Box 1099, Alcoa, TN 37701. . He left the Dhoma City died Feb. 28. Navy in 1971 and returned to He was born June 3, 1931, in lan Burke Foster of law school, finishing class in Tulsa, was a graduate of the ASimpsonville, South Car- 1973. He became special judge TU College of Law, a member olina, died March 24. He was from 1974 to 1982. He then of Alpha Tau Omega fraterni- born Nov. 28, 1948, in Guy- served as a district judge in ty and Phi Alpha Delta law mon and graduated from McClain, Garvin and Cleve- fraternity. He was also a Guymon High School. After land counties until 1993, after member of the Mineral Law- receiving his bachelor’s which he joined the Cleveland yers Association in Oklahoma degree in 1972 from OSU, he County District Attorney’s City. He was retired from his attended the OCU School of Office in 1995, retiring from private practice law firm at Law where he received his the district attorney’s office the time of his death. J.D. in 1976. He was a prose- in 2005. ordon David Ross cutor for the state of Oklaho- of dward Harold Moler ma and an assistant district of GTulsa died Jan. 29. He attorney in several counties EOklahoma City died was born Jan. 16, 1954, in including Noble, Pawnee and March 21. He was born May Tulsa. He attended Tulsa Beaver. He also served as an 26, 1923, in Oklahoma City Memorial High School and oil and gas attorney with the and, after graduating from later OSU where he earned a Oklahoma Corporation Com- Classen High School in 1941, degree in finance in 1976. He

842 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 went on to graduate from the 1970, he started with the Vet- udge Donald C. “Don” OU College of Law in 1979. A erans Administration. He held JWelch of Ponca City died veteran, Captain Ross served the positions of assistant dis- Nov. 16, 2015. He was born honorably in the Judge trict counsel in Waco, Texas, May 2, 1928, in Ponca City Advocate General’s Corps of and district counsel in both St. and attended Ponca City High the United States Army at Louis and Muskogee. He later School, graduating in 1947 as Fort Riley, Kansas, from 1979 served as an associate district co-valedictorian. He earned through 1983. He practiced judge in the Oklahoma pan- his bachelor’s degree from law for close to 30 years with handle. He was involved in OU in 1951 and later his J.D., his most recent firm being several civic organizations and serving as editor of the Law Lytle, Soule and Curlee in was an active member of the Review for two years. Judge downtown Oklahoma City. Gideons International. Welch served his country in Memorial donations may be the United States Air Force ames Hamilton Therrell IV made to the Oklahoma Medi- active duty and reserves in of Fort Lupton, Colorado, cal Research Foundation at J the Intelligence Division, died July 17, 2015, in Boulder www.omrf.org/gifts. eventually retiring with the County. He was born July 24, rank of major. After two udge Billy Marvin Shaw of 1974, in Atlanta. Mr. Therrell years of active duty service at JClaremore died Aug. 16, was a 1997 graduate of Geor- Lowry Air Force Base in Den- 2015. He was born July 22, gia Southern University ver, he returned to Ponca City 1948, grew up in Inola and where he also spent a semes- to practice law. In addition to attended Claremore High ter studying abroad in Esto- his private law practice of 60 School. After graduating from nia. He obtained a law degree years, he served as assistant Northeastern State College, he from the University of Denver district attorney in Kay Coun- served in the United States - Sturm College of Law in ty for 31 years, representing Army . When he returned 2003 and became a licensed Kay County Government as from duty he completed his attorney in seven states and head of the Civil Division of master’s degree at OSU before vice president of legal affairs the District Attorney’s Office. attending the TU College of for Wakefield and Associates. In August 1989, he was sworn Law. Judge Shaw served as an He loved the language of law in as special district judge assistant district attorney for and it showed in his success when the Supreme Court cre- Tulsa, Rogers, Mayes and in the courtroom. ated a new position to serve Craig counties and was atrick “Pat” Turowski of the 8th Judicial District, com- appointed as a district judge Tulsa died Nov. 6, 2015. prised of Kay and Noble in the 12th Judicial District of P He was born July 28, 1970, in counties. He was honored by Oklahoma. He is survived by Muskogee. He attended But- Gov. Frank Keating for his OBA member and daughter ler County Community Col- volunteer service to the Okla- Erinn Shaw-Bisceglia. lege on a full scholarship in homa Court of Criminal erbert N. Standeven of livestock judging. He trans- Appeals in 1996. Memorial HKimberling City, Mis- ferred his junior year to the contributions may be made in souri, died Oct. 22, 2015. He University of Kansas where his name to the First Christian was born Oct. 22, 1933, in he graduated in 1992 with a Church, 210 N. 5th Street, Tulsa. He moved to Oklaho- degree in business adminis- Ponca City, OK 74601 and ma City where he graduated tration. He was later accepted earmarked for the Friendship from Classen High School. He to the OCU School of Law, Feast Program. attended Oklahoma Military receiving his J.D. in 1995. He alter Wayne Withers of Academy Jr. College and OU, passed the Oklahoma Bar WSt. Louis, died June 16, where he obtained his LL.B. exam at age 24. At the time of 2015. He was born Nov. 4, and was admitted to the his death he was working for 1940. He received his J.D. Oklahoma Bar in 1959. He Humphrey, Wallace, Hum- from Northwestern Universi- began his career as assistant phrey Law Firm in Tulsa. He ty. He moved to Washington, city attorney in Oklahoma previously managed Walden D.C. to work as a staff attor- City and later served as assis- Books in Bartlesville and ney for the Federal Trade tant district attorney in the Books a Million Commission. In 1968, he Oklahoma panhandle. In in Tulsa. moved to St. Louis to join

Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 843 Monsanto as a corporate banes-Oxley Act of 2002 and Donations may be made to counsel. Over the next 21 became a mentor to many on the Missouri Historical Soci- years, he rose to become chief the legal staff. At the time of ety, P.O. Box 11940, St. Louis, legal counsel to the compa- his death, he was of counsel Missouri, 63112, MD Ander- ny’s agricultural products in the St. Louis office of Bryan son Hospital, c/o Dr. Guiller- division. Joining Emerson in Cave. In addition to his con- mo Garcia-Manero, 1400 Hol- 1989 as secretary and general siderable corporate duties, he combe Boulevard, Houston, counsel, he spent the next 20 served on the boards of Texas, 77030 or to a charity of years there as the company numerous local and national your choice. flourished. He led the compa- nonprofit organizations aimed ny’s compliance with the Sar- at improving legal services.

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OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n December n May 2016 Issues Ethics & Professional Constitutional Law n May Responsibility Editor: Erin L. Means Indian Law Editor: Renée DeMoss [email protected] Editor: Leslie Taylor [email protected] Deadline: Jan. 1, 2017 [email protected] Deadline: Aug. 1, 2016 n August Deadline: Jan. 1, 2016 Technology & Office n August Management Bankruptcy 2017 Issues Editor: Amanda Grant Editor: Amanda Grant [email protected] [email protected] n January Deadline: May 1, 2017 Deadline: May 1, 2016 Meet Your Bar Association n September Editor: Carol Manning n September Bar Convention Bar Convention n February Editor: Carol Manning Editor: Carol Manning Energy Law n October Editor: Luke Adams n October Insurance Law Real Property [email protected] Editor: Renée DeMoss Deadline: Oct. 1, 2016 Editor: Shannon Prescott [email protected] [email protected] n March Deadline: May 1, 2017 Deadline: May 1, 2016 Work/Life Balance n November Editor: Melissa DeLacerda n November Administrative Law Trial by Jury [email protected] Editor: Mark Ramsey Deadline: Oct. 1, 2016 Editor: Melissa DeLacerda [email protected] [email protected] n April Deadline: Aug. 1, 2017 Deadline: Aug. 1, 2016 Law Day n December Editor: Carol Manning Ethics & Professional Responsibility If you would like to write an article on Editor: Leslie Taylor [email protected] these topics, contact the editor. Deadline: Aug. 1, 2017

844 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 WHAT’S ONLINE

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Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 845 CLASSIFIED ADS

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846 The Oklahoma Bar Journal Vol. 87 — No. 11 — 4/16/2016 POSITIONS AVAILABLE POSITIONS AVAILABLE

FAST-PACED OKC INJURY FIRM SEEKS EXPERI- FULL SERVICE, AV-RATED, DOWNTOWN TULSA

ENCED LEGAL ASSISTANT to join its personal injury LAW FIRM seeks associate attorney with 3 - 6 years’ team. Candidate will be expected to assist in all phases commercial litigation experience. Solid deposition and of the case, from intake through final resolution. Pay trial experience is a must. Our firm offers a competitive commensurate with experience. Please forward re- salary and benefits, with bonus opportunity. Submit sume and references to “Box AA,” Oklahoma Bar As- résumé and references to “Box P,” Oklahoma Bar As- sociation, P.O. Box 53036, Oklahoma City, OK 73152. sociation; PO Box 53036; Oklahoma City, OK 73152. PIERCE COUCH HENDRICKSON BAYSINGER & THE OKLAHOMA BAR ASSOCIATION HEROES pro-

GREEN IS SEEKING A RECEPTIONIST for its Tulsa gram is looking for several volunteer attorneys. The office. The position will assist with secretarial duties as need for FAMILY LAW ATTORNEYS is critical, but at- well. We are looking for an individual who is highly torneys from all practice areas are needed. All ages, all dependable, has excellent communication skills, and counties. Gain invaluable experience, or mentor a has good computer and organizations skills. Please young attorney, while helping someone in need. For submit resumes by email to [email protected]. more information or to sign up, contact Gisele Perry- man, 405-416-7086 or [email protected]. TULSA PLAINTIFF’S PERSONAL INJURY FIRM OKLAHOMA BUREAU OF NARCOTICS IS SEEKING SEEKS A LAWYER with 0-5 years of experience. We are looking for a candidate who is hard working, a self- A STAFF ATTORNEY at its Oklahoma City Headquar- starter and who wants to litigate. Candidates must ters to perform legal services related to a state law en- have excellent organizational skills, analytical skills forcement agency. This position will be tasked to advise and research/writing skills. Compensation is competi- law enforcement in both civil and administrative inves- tive and includes benefits for a full-time attorney (i.e. tigations, prosecute drug cases and manage wiretap health ins., 401(k) with matching, paid time off, life ins., and civil forfeiture cases. Applicants must be licensed dental ins., vision ins., performance and/or production to practice law in Oklahoma and have 5 years of experi- bonuses, etc.). Please send cover letter, resume, reference managing all aspects of criminal litigation. Com- ences and writing sample to Box “F,” P.O. Box 53036, pensation will range from $50,000 to $60,000 annually Oklahoma City, OK 73152. Respond by 4/29/16. with a state benefit package. This position closes on April 22, 2016, at 5 p.m. Please forward a resume and AV-RATED NW OKC FIRM SEEKING TO EXPAND cover letter to 419 NE 38th Terrace, OKC, OK 73105, fax

ITS LITIGATION PRACTICE. We are looking for com- to 405-530-3192 or email [email protected]. For a mercial litigator(s) with existing client base and 5 to 10 more detailed job description, requirements and salary years substantive commercial or oil and gas litigation range, please see the entire post on http://www.ok. experience. Applicants should be motivated, self-start- gov/obndd/Jobs/index.html. ers, with strong work ethic, excellent communication and organizational skills. We are looking for persons ASSOCIATE POSITION AVAILABLE: 2-5 YEARS OF with sound judgment and who work well with others. EXPERIENCE; research and writing skills; top 30 per- Send resume to “Box H,” Oklahoma Bar Association, cent graduate; law review or federal judicial clerk ex- P.O. Box 53036, Oklahoma City, OK 73152. perience desired; complex litigation experience and detail oriented preferred. Submit resume to Federman NORMAN LAW FIRM IS SEEKING sharp, motivated & Sherwood, 10205 N. Pennsylvania Avenue, OKC

attorneys for fast-paced transactional work. Members 73120, or [email protected]. of our growing firm enjoy a team atmosphere and an energetic environment. Attorneys will be part of a cre- NW OKLAHOMA CITY LAW FIRM SEEKS AN ASSO-

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Vol. 87 — No. 11 — 4/16/2016 The Oklahoma Bar Journal 847 THE BACK PAGE

We Don’t Want To Be Texas By Michael J. Blaschke

Sometimes I get the impression ness of another is fully compen- business climate. This is obvious. that our politicians and “civic sated for that suffering to the tune The question is: At what price? leaders” admire the things going of $350,000 and no more. That one Are we truly going to allow on in the Texas judicial system who is rendered a quadriplegic judges to be intimidated and and are encouraged to do the due to that same carelessness, be frightened to follow our ideals same here. Well, I am not a politi- it the act of prominent physician because somebody thinks “busi- cian or civic leader. I’m a lawyer. and hospital or humble truck ness” might be harmed? Are we All I can do is try to outline what driver, is made “whole” under the really going to allow money to be ideals we may be sacrificing to law by that same figure. the conduit and the only conduit “become” Texas. for attainment of a judgeship? Are I think common agreement we really desirous of partisan could be found that our ideals are: elections for judges? Because that 1) absolute reverence for the rule is what is happening in Texas — of law, 2) absolute reverence for the purchase through moneyed an independent judiciary, behold- elections of “friendly” judges. en to no one, 3) absolute rever- Judges are not supposed to be ence for the equality of all, be he friendly! Good ones never are! lowly or powerful and 4) absolute Polite and courteous certainly, but reverence for the system of juries, never friendly in the sense meant because we do not leave right by those proposing to take over and wrong in the hands of elected the judiciary. We don’t want to representatives. “We the People” be Texas. decide. Our Oklahoma judges are Some voices, however, think chosen and retained by laws, that it is not enough to control regulations, commissions and two branches of government, but appointment by the governor, all that to have all three in thrall is in keeping with the ideals. They the only way to achieve certain are not chosen on the basis of how ends. “friendly” they are. Not yet. This is not new. This is not In the final analysis, however, news. The war between law and there is little I can do to change power was fought out by the things. I can’t change things. Until Greeks in their city-states, was “citizens united” find a way to fought out by the Roman Repub- fight these two bad ideas I must lic. It is a war as old as civilization In the vernacular of Oklahoma, in the words of that great prayer itself and continues here as these I got no dog in this personal inju- find the courage to accept the ideals are under assault by two ry hunt. But I am vitally invested things I cannot change. The only really bad ideas. in the ideals. I do have a dog in other thing I can do is raise my small little voice in protest. The first of the two has its roots that hunt. And to suggest that the in the belief that there is some- plaintiff suffering I describe above Herein, my protest — and my thing wrong with juries deciding is fully paid for under “reform” prayer. right and wrong under the law legislation is shameful. Such Editor’s Note: This article is modi- and under the guidance of an “reform” is a direct and flagrant fied from the original version printed independent judiciary. So they desecration of The Four Ideals. in The Briefcase, published by the have sought to “reform” our sys- The second bad idea seeks to Oklahoma County Bar Association. tem by saying, for example, that determine which of our judges are one who is being tortured to “business friendly.” Everyone Mr. Blaschke practices in Oklaho- death by pain due to the careless- wants a vibrant economy and ma City.

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