ALSO INSIDE: Solo & Small Firm Conference • PRC Annual Report • Day at the Capitol

Volume 90 — No. 3 — March 2019

CRIMINAL Law

contents March 2019 • Vol. 90 • No. 3

THEME: Criminal Law Editor: Aaron Bundy FEATURES PLUS 6 45 Words: Criminal Regulation of Marijuana 44 Legislative News: Reading Day Recap, Possession in Oklahoma After SQ 788 Day at the Capitol March 12 By Brian Ted Jones By Angela Ailles Bahm 12 Facets of Expungement of Criminal Records 48 Solo & Small Firm Conference in Oklahoma By Jim Calloway By Orval Edwin Jones 56 Professional Responsibility Commission 18 Managing Expectations in Criminal Tax Annual Report Defense – Yours and Your Client’s By John D. Russell and Andrew J. Hofland 24 The iPhone, the Speaker and Us: Constitutional Expectations in the Smart Age By Mbilike Mwafulirwa

30 Holt v. Hobbs: Prisoner Religious Freedom Versus Prison Safety By John P. Cannon and Leann Farha 36 Not So Hypothetical After All: Addressing the Remaining Unanswered Questions About Self-Driving Cars By Spencer C. Pittman and Mbilike Mwafulirwa

DEPARTMENTS PAGE 44 – Legislative News 4 From the President 64 From the Executive Director 66 Law Practice Tips 69 Oklahoma Bar Foundation News 72 Young Lawyers Division 74 For Your Information 75 Bench and Bar Briefs 76 In Memoriam 78 Editorial Calendar

81 What’s Online PAGE 48 – Solo Conference 88 The Back Page From The President It’s a Matter of Attitude By Charles W. Chesnut

ECENTLY, I CALLED MY ELECTRICIAN’S SHOP. us. And so how do we cope? We feel we RI wanted to ask him to come and fix a lighting prob- have to voice the problem to get it out of lem I was having at the office. It was a bitterly cold day – us, to expose it to air, so we complain. one of those days where the low was about 14 degrees. We complain about having too much His mother, one of my clients, answered the telephone. work, not enough work, the demands She is 93 years old. “Marie,” I said, “you’re up and at ‘em placed upon us, the way we are treated early on this cold morning.” “It’s a matter of attitude,” by judges in the courtroom or by other she responded. “The way I look at it, I’m lucky at this age attorneys, too many telephone calls, not to be able to get up and go to work.” enough telephone calls, the overhead we Pretty amazing, really. Ninety-three years old. Fourteen are faced with, the deadlines imposed degrees outside, and she’s lucky to be able to get up and upon us, the volume of emails we go to work. receive. You name it, we complain about I’ve been reading some of the Stoic philosophers lately. it. It’s as if we take a certain amount of I’m not sure exactly how I got started on them. I think I’ve pride in complaining about our circum- enjoyed many of the writings of Marcus Aurelius. I went stances in life – even though much of on from there to read some of the works of other Stoics. it we have created ourselves through According to the Stoics, the path to happiness for decisions we have made, especially if we humans, as social beings, is found in accepting the didn’t have to take the case to begin with. moment as it presents itself, by not allowing oneself to And yet much of these complaints be controlled by the desire for pleasure or fear of pain, are just opinions about it. That’s it. Just by using one’s mind to understand the world and to do opinions – and probably not very consid- one’s part in nature’s plan and by working together and ered ones at that. To change your expe- treating others fairly and justly. rience, change your opinion. Change One of the many things that Marcus Aurelius writes the way you look at it. It may take some is, “To change your experience, change your opinion. work on your part to be creative enough Stop telling yourself that you’re a victim and the pain to find another way of looking at it – to goes away.” “Everything is opinion.” change your opinion of it. But when So how does this relate to us as you are able to do that, it is liberating. attorneys? Wayne Dyer, a famous writer and I think we are extremely fortunate motivational speaker, said, “When you to be able to practice law. We have change the way you look at things, the the right to choose the type of law things you look at change.” So try to we practice, the clients we repre- change the way you look at something, sent and the opportunity to help and see how it changes your life. people solve very difficult problems You could be 93, it’s 14 degrees out- in their lives that they are not able side and feel lucky to be able to get up to solve for themselves. Most of us and go to work. That’s her opinion. It have the right to choose whether to could be ours too. take a case or not. Two suggestions for books to read: And yet it’s a tough business. Meditations by Marcus Aurelius and 10% Long hours. Difficult problems. Happier by ABC newscaster Dan Harris. President Chesnut practices in Miami. Difficult people. Lots of stress from [email protected] 918-542-1845 deadlines and work crowding in on

4 | MARCH 2019 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2019 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Volume 90 — No. 3 — March 2019 Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. JOURNAL STAFF BOARD OF EDITORS Advertisers are solely responsible for the JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair content of their ads, and the OBA reserves Editor-in-Chief the right to edit or reject any advertising copy [email protected] LUKE ADAMS, Clinton for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor CLAYTON BAKER, Vinita by the Board of Editors. Information about [email protected] submissions can be found at www.okbar.org. AARON BUNDY, Tulsa MACKENZIE SCHEER Advertising Manager PATRICIA A. FLANAGAN, Yukon BAR CENTER STAFF [email protected] John Morris Williams, Executive Director; AMANDA GRANT, Spiro Gina L. Hendryx, General Counsel; Joe LACEY PLAUDIS Balkenbush, Ethics Counsel; Jim Calloway, Communications Specialist VIRGINIA D. HENSON, Norman Director of Management Assistance Program; [email protected] Craig D. Combs, Director of Administration; C. SCOTT JONES, Oklahoma City LAURA STONE Susan Damron, Director of Educational Communications Specialist SHANNON L. PRESCOTT, Okmulgee Programs; Beverly Petry Lewis, Administrator [email protected] MCLE Commission; Carol A. Manning, LESLIE TAYLOR, Ada Director of Communications; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels OFFICERS &

Les Arnold, Julie A. Bays, Gary Berger, BOARD OF GOVERNORS Debbie Brink, Melody Claridge, Cheryl CHARLES W. CHESNUT, President, Miami; Corey, Ben Douglas, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, Suzi LANE R. NEAL, Vice President, Oklahoma City; SUSAN B. SHIELDS, Hendrix, Debra Jenkins, Rhonda Langley, President-Elect, Oklahoma City; KIMBERLY HAYS, Immediate Past Jamie Lane, Durrel Lattimore, Renee President, Tulsa; MATTHEW C. BEESE, Muskogee; TIM E. DECLERCK, Montgomery, Whitney Mosby, Lacey Enid; MARK E. FIELDS, McAlester; BRIAN T. HERMANSON, Plaudis, Tracy Sanders, Mackenzie Scheer, Ponca City; JAMES R. HICKS, Tulsa; ANDREW E. HUTTER, Mark Schneidewent, Laura Stone, Margaret Norman; DAVID T. MCKENZIE, Oklahoma City; BRIAN K. MORTON, Travis, Krystal Willis, Laura Willis & Oklahoma City; JIMMY D. OLIVER, Stillwater; MILES T. PRINGLE, Roberta Yarbrough Oklahoma City; BRYON J. WILL, Yukon; D. KENYON WILLIAMS JR., Oklahoma Bar Association 405-416-7000 Tulsa; BRANDI NOWAKOWSKI, Shawnee, Chairperson, OBA Toll Free 800-522-8065 Young Lawyers Division FAX 405-416-7001 Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, Ethics Counsel 405-416-7055 except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln General Counsel 405-416-7007 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid Lawyers Helping Lawyers 800-364-7886 at Oklahoma City, Okla. and at additional mailing offices. Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Subscriptions $60 per year that includes the Oklahoma Bar Journal Board of Bar Examiners 405-416-7075 Court Issue supplement delivered electronically semimonthly. Law Oklahoma Bar Foundation 405-416-7070 students registered with the OBA and senior members may subscribe for $30; 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.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 5

Criminal Law 45 Words: Criminal Regulation of Marijuana Possession in Oklahoma After SQ 788 By Brian Ted Jones

EFORE THE PASSAGE OF INITIATIVE PETITION 412, State Question 788 (788), the Bregulation of marijuana in Oklahoma was confined almost exclusively to the criminal courts. Possession by a marijuana user was illegal and prosecuted as a misdemeanor.1 Possession with intent to distribute by a marijuana seller was illegal and prosecuted as a felony.2 Production and trafficking in marijuana by a large-scale marijuana provider distributing in bulk to retail marijuana sellers was likewise illegal and prosecuted as a major felony.3 In fact, the only non- criminal form of marijuana regulation under Oklahoma law prior to 788 was the state’s imple- mentation of federal authorities for possession of marijuana as a Schedule I narcotic.4

In the years immediately The passage of 788 turns this on 3 ounces of marijuana on their preceding the passage of 788, its head. Under 788, possession of person.16 In less than eight months of Oklahoma law enforcement marijuana by a user is no longer a granting patient licenses,17 OMMA agencies were regularly involved misdemeanor but a privilege held has approved the legal possession of in the investigation, apprehension by patient licensees.8 Under 788, over three times as much marijuana and prosecution of marijuana possession by a distributor is no as OBN seized in all of 2017. users, sellers and traffickers. In longer a felony but a licensed and 788 ended a system where regu- 2016, the Oklahoma State Bureau regulated commercial activity.9 lation of an agricultural commod- of Investigation (OSBI) received Under 788, manufacturing mari- ity was the exclusive domain of 22,995 lab submittals from prose- juana by a grower is no longer a the criminal code and transferred cuting agencies and 6,561 of those major felony but another licensed jurisdiction over that commodity submittals requested lab testing for and regulated commercial activ- to authorities in the state’s civil marijuana: 29 percent of the total.5 ity10 with no limits on production11 law. The simplicity of this transfer In that same year, 41.1 percent of and an immunity from taxation on belies the revolutionary nature of all adult and juvenile drug-related wholesale sales,12 while traffick- its effect, in spite of this massive arrests in Oklahoma were for pos- ing in marijuana is governed by a alteration to Oklahoma law, the session of marijuana, representing transportation license available to text of 788 is almost entirely silent 1,048 juveniles and 9,128 adults.6 In all commercial licensees.13 I n 2017, on the changes this measure will 2017, OSBI marijuana lab submittals OBN seized over 2,000 pounds of produce in Oklahoma criminal increased by 22.8 percent and inter- marijuana through drug interdic- law. There are 3,177 words in the diction agents with the Oklahoma tion operations.14 As of Feb. 4, 2019, text of 788, and only 45 of them Bureau of Narcotics and Dangerous the Oklahoma Medical Marijuana relate to criminal matters at all. Drugs (OBN) seized 2,132 pounds Authority (OMMA) had granted of marijuana from vehicles travel- 38,592 patient licenses,15 authoriz- ing through the state.7 ing each licensee to possess up to

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 7 63 O.S. §420A (A) AND (B) V. not operate retrospectively because This would be an especially 63 O.S. §2-402 (B)(2) Oklahoma criminal statutes never treacherous route for a prosecutor 788 included the following two operate retrospectively unless the to embark upon, however, given the provisions. First, 63 O.S. §420A (A), legislative authority specifically ease with which 63 O.S. §2-402 (A)(1) which says: says they do.20 Second, the passage and 63 O.S. §420A (A) may coexist of 788 does not implicitly repeal the with one another, so long as law A person in possession of a marijuana prohibitions of 63 O.S. enforcement authorities perform the state issued medical marijuana §2-402 (A)(1) because the Oklahoma plain legal duty of recognizing the license shall be able to … law contains a strong presumption validity of OMMA patient licenses.26 [c]onsume marijuana legally against implied repeals, and only Indeed, a strong argument can [and l]egally possess up to three where “an irreconcilable conflict” be made that no conflict whatso- (3) ounces on their person[.] exists between two statutes will ever exists between 63 O.S. §2-402 the Court of Criminal Appeals (A)(1) and 63 O.S. §420A (A), since Second, 63 O.S. §420 (B), which says: find implied repeal and apply the the former statute only prohibits latter statute.21 Third, there is no possession of marijuana “unless Possession of up to one and one- force of legislative authority under such substance was obtained half (1.5) ounces of marijuana by the Oklahoma Constitution that directly, or pursuant to a valid persons who can state a medical can limit prosecutorial discretion prescription or order from a prac- condition, but not in possession to charge whatever offenses are titioner, while acting in the course of a state issued medical mar- available under the criminal law of of his or her professional prac- ijuana license, shall constitute the state: as the Court of Criminal tice[.]” 788 specifically authorizes a misdemeanor offense with a Appeals noted in State v. Haworth, possession of marijuana pursuant fine not to exceed Four Hundred “in our criminal justice system, the to a state-issued license obtainable Dollars ($400.00).18 executive branch of the govern- only on the recommendation of a ment retains broad discretion as to board-certified physician “accord- These two provisions contain whether, when, and how to prose- ing to the accepted standards a significant overlap with a separate, cute crime.”22 Moreover, although reasonable and prudent physician earlier statute, 63 O.S. §2-402 (A)(1), “[q]uestions may arise when two would follow when recommend- which says: statutes, however plainly worded, ing or approving any medica- appear to cover the same or similar tion.”27 In other words, the same It shall be unlawful for any conduct,” the Court of Criminal general species of immunity from person knowingly or inten- Appeals has also said “there simply arrest or prosecution provided to tionally to possess a controlled is no rule of statutory construction patient licensees under 788 was dangerous substance19 unless requiring that a particular pattern already specifically recognized by such substance was obtained of criminal conduct shall only 63 O.S. §2-402 (A)(1). directly, or pursuant to a valid be addressed by one particular One can subtract, therefore, prescription or order from a criminal provision.”23 all the marijuana possession cov- practitioner, while acting in the Where a conflict could arise ered by 63 O.S. §420A (A) from course of his or her professional would be a scenario where a law Oklahoma criminal law because the practice, or except as otherwise enforcement agent arrested, or a passage of 788 added that activity authorized by this act. prosecutor prosecuted, a patient to Oklahoma civil law. One is left, licensee for possessing 3 ounces or then, with the full scope of crimi- The penalty for violation of this less on their person.24 A prosecutor nal liability for simple possession statute by possession of marijuana could theoretically cite Haworth of marijuana divided between two is contained at 63 O.S. §2-402(B) for the ground that both 63 O.S. statutes: the activity still covered in (2), and categorizes the offense as §2-402 (A)(1) and 63 O.S. §420A (A) 63 O.S. §2-402 (A)(1) and the activity a misdemeanor with a maximum exist independently of one another, now covered by 63 O.S. §420A (B). carceral punishment of one year and where the prior law, without and a maximum fine of $1,000. being repealed, authorized arrest 63 O.S. §2-402 (B)(2) V. A few questions that might be and prosecution for one form of 63 O.S. §420A (B). raised under these circumstances conduct, the subsequent law cannot Both 63 O.S. §2-402 (B)(2) can quickly be answered by exist- prevent arrest and prosecution for (pre-788 statute) and 63 O.S. ing points of Oklahoma criminal the same form of conduct simply §420A (B) (post-788 statute) attach law. First, the passage of 788 does by being later in time.25 criminal liability to the same act

8 | MARCH 2019 THE OKLAHOMA BAR JOURNAL The question of whether the pre-788 statute or the post-788 statute applies would be raised when a police officer encounters a nonlicensee in possession of 1.5 ounces or less, and the underlying question at that point would become, “Can the arrestee state a medical condition?”

(possessing marijuana without The question of whether the THE DECLARATION UNDER legal authority) with the same pre-788 statute or the post-788 63 O.S. §420A (B) mens rea (“knowledge and control” statute applies would be raised Note the post-788 statute does under Staples v. State).28 The major when a police officer encounters not require an arrestee to “prove difference between the pre-788 a nonlicensee in possession of 1.5 a medical condition,” merely to statute and the post-788 statute lies ounces or less, and the underly- “state” a medical condition.35 Note in the criminal penalty provided ing question at that point would as well that the post-788 statute for this conduct: the pre-788 statute become, “Can the arrestee state a does not require an arrestee to state authorizes a year in jail and a medical condition?”32 a “specific” medical condition.36 maximum fine of $1000,29 while the Under the pre-788 statute, every- Under the “plain and ordinary post-788 statute does not authorize one in possession of marijuana is meaning” of the post-788 statute, a any jail time and only authorizes a guilty of a misdemeanor and can person is immune from the higher maximum fine of $400.30 Where a potentially be jailed for a year as penalty range under the pre-788 police officer encounters a patient well as potentially fined $1,000.33 statute and must receive the lower licensee in possession of 3 ounces Under the post-788 statute, anyone penalty range under the post-788 or less on their person, the person who is not a patient licensee in statute if they “can state a medical is not exposed to criminal lia- possession of 1.5 ounces or less of condition.” They do not have to bility at all because this activity marijuana is likewise guilty of a prove they have a medical condi- is authorized by 63 O.S. §420A: misdemeanor but cannot receive a tion, nor do they have to say what neither the pre-788 statute or the jail sentence and can only be fined medical condition they have.37 post-788 statute come into play. $400 if they “can state a medical Suppose, though, an arresting Where a police officer encounters a condition.”34 The post-788 statute agency decided not to honor the nonlicensee in possession of more plainly provides for a more lenient plain meaning of the post-788 than 1.5 ounces, there is likewise penalty, therefore arrestees would, statute, and arrested persons under no question whether the activity is naturally, prefer the penalty of the the pre-788 statute who could “state authorized by 63 O.S. §420A (it is post-788 statute over the pre-788 a medical condition,” but did not not) and likewise no question about statute. Courts and litigators should possess proof of that condition nor whether the activity is governed by then have a ready sense for what were willing to state to the arrest- the pre-788 statute or the post-788 constitutes “stat[ing] a medical con- ing officer the underlying medical statute. Since the post-788 statute dition” under the post-788 statute. condition they possessed.38 Suppose only affects the rights of persons in further that a prosecuting agency possession of 1.5 ounces or less, the decided to prosecute a person under pre-788 statute continues to apply.31 the pre-788 statute instead of the

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 9 post-788 statute even though the ABOUT THE AUTHOR 33. 63 O.S. §2-402 (B)(2). person made it clear to the prosecu- 34. 63 O.S. §420A (B). Brian Ted Jones is a solo 35. Id. tor that they could “state a medical practitioner in the firm Brian Ted 36. Id. condition” but did not provide proof 37. State v. Stice, 2012 OK CR 14, ¶11 (citing Jones PC. He is a graduate of St. Wallace v. State, 1997 OK CR 18, ¶4). of the condition nor identify that John’s College and holds a law 38. 63 O.S. §420A (B). condition.39 A defendant facing this 39. Id. degree from the OU College of Law. 40. State v. Stice, 2012 OK CR 14, ¶11 (citing predicament could feel reasonable Wallace v. State, 1997 OK CR 18, ¶4). confidence in litigating the mat- 41. Codified at 42 U.S.C. §300gg, 29 U.S.C. ENDNOTES §1181 et seq, and 42 U.S.C. §1320d et seq. ter. First, the “plain and ordinary 1. 63 O.S. §2-402(B)(2) (carrying a maximum 42. Letter from E. Scott Pruitt, Oklahoma carceral sentence of one year a maximum fine of attorney general, to Chris Benge, Oklahoma meaning” of the statute supports $1,000). 40 secretary of state, RE: Ballot Title for State their position. Second, any attempt 2. 63 O.S. §2-401 (B)(2) (carrying a carceral Question No. 788, Initiative Petition No. 412 by a police officer or prosecutor range of two years to life, probation allowed and (Aug. 25, 2016) (on file with the Office of the a maximum fine of $20,000). Secretary of State)(emphasis added). to deploy compulsory process 3. 63 O.S. §2-415(D)(2) (carrying a carceral to secure medical documents to range of four years to life, with no possibility of probation and a fine range of $100,000 to $500,000). confirm or disprove the defendant’s 4. See 63 O.S. §2-101 et seq and OKLA. assertion would meet obstacles ADMIN. CODE §475:10-1-1 et seq. 5. Oklahoma State Bureau of Narcotics and contained in federal law under the Dangerous Drugs, 2017 Oklahoma Drug Threat Health Insurance Portability and Assessment, June 19, 2017 at p.3. 6. Id. at p.9. Accountability Act (HIPPA), which 7. Oklahoma State Bureau of Narcotics and generally requires a court order Dangerous Drugs, 2018 Oklahoma Drug Threat Assessment, Sept. 12, 2018, at p.8. prior to the production of patient 8. 63 O.S. §420A (A). records to a law enforcement agency 9. 63 O.S. §421A. 41 10. 63 O.S. §422A. or a court. Third, a key piece of evi- 11. Id. at 422A (D). dence for this reading of the post-788 12. Id. at 422A (C). 13. 63 O.S. §§424A (A) and (B). statute can be found in the substi- 14. Oklahoma State Bureau of Narcotics and tute ballot title for 788 provided by Dangerous Drugs, 2018 Oklahoma Drug Threat Assessment, Sept. 12, 2018, at p.8. then-Attorney General E. Scott Pruitt 15. Oklahoma Medical Marijuana Authority to the Oklahoma secretary of state (@OMMAOK), Sept. 24, 2018, 9:11 a.m., www.twitter. com/OMMAOK/status/1044227934167465984. on Aug. 25, 2016, which described 16. 63 O.S. §420A (A)(2). the effect of the post-788 statute this 17. Press Release, Oklahoma Medical Marijuana Authority, Oklahoma Medical Marijuana way: “Unlicensed possession by License Applications to Open Saturday (Aug. 24, an individual who claims to have a 2018) available at omma.ok.gov/oklahoma- medical condition is punishable by a medical-marijuana-license-applications- to-open-saturday. 42 fine not exceeding $400.” 18. 63 O.S. §420A (B). 19. See 63 O.S. §2-101 (8), defining a “controlled dangerous substance” as a “drug, substance, or CONCLUSION immediate precursor in Schedules I through V of the In Oklahoma, 788 fundamentally Uniform Controlled Dangerous Substances Act”. See also 63 O.S. §2-204 (C)(12), defining “marijuana” transformed the law of marijuana as a Schedule I “hallucinogenic substance[.]” possession. Oklahoma criminal 20. Witherow v. State, 2017 OK CR 17, ¶9. 21. State v. Stice, 2012 OK CR 14, ¶12 (citing courts no longer have sole authority City of Sand Springs v. Dep’t of Pub. Welfare, over the production, distribution 1980 OK 36, ¶28. 22. State v. Haworth, 2012 OK CR 12, ¶13. and possession of this commodity. See also Okla. const. art. 4, §1: “The powers of the Instead, civil law, civil courts and government of the State of Oklahoma shall be divided into three separate departments: The Legislative, agencies of the civil power will share Executive, and Judicial; and except as provided authority, with the criminal courts in this Constitution, the Legislative, Executive, and Judicial departments of government shall be retaining a small, uncertain portion. separate and distinct, and neither shall exercise the Indeed, the future of marijuana powers properly belonging to either of the others.” 23. Haworth at ¶12. policy in Oklahoma will almost cer- 24. 63 O.S. §420A (A)(2). tainly be driven far more by the 3,132 25. Haworth at ¶¶11-12. 26. Cf. Rule 10.6 (A), Rules of the Oklahoma Court in 788 that are concerned with the of Criminal Appeals, Title 22, Ch.18, App. (2003). licensing, governance and taxation 27. 63 O.S. §420A (M). 28. 1974 OK CR 208, ¶8-9. of marijuana than it will be by the 29. 63 O.S. §2-402 (B)(2). 45 words in 788 concerned with its 30. 63 O.S. §420A (B). 31. Id. continuing criminal prohibition. 32. Id.

10 | MARCH 2019 THE OKLAHOMA BAR JOURNAL

Criminal Law Facets of Expungement of Criminal Records in Oklahoma By Orval Edwin Jones

12 | MARCH 2019 THE OKLAHOMA BAR JOURNAL ROCEDURES AND QUALIFICATIONS FOR EXPUNGEMENT of criminal records in POklahoma should be well understood by any criminal defense lawyer.1 There are two types of expungements: general expungement of criminal records arising from a special civil proceeding pre- scribed in 22 O.S. §19; and special expungement provisions pertaining to individual cases, in which the statutory authority to seal records is limited to the court records generated in the particular case.2

The Court of Criminal Appeals Title 22 for a short period of said that the power to expunge has held that a district court in a time required general expunge- arrest records should be reserved criminal case has no jurisdiction to ment appeals to be filed in the for cases “where the arrest itself seal arrest records and other law Court of Criminal Appeals, but the was an unlawful one, or where the enforcement records pursuant to Legislature revised the appeals pro- arrest represented harassing action 22 O.S. §991c.3 Although a general cess to place appellate jurisdiction by the police, or where the statute expungement is directed to the seal- in the Oklahoma Supreme Court, under which the arrestee was pros- ing of criminal investigation and where it remains.5 ecuted was itself unconstitutional.”9 prosecution records, it is understood A study on the effects of arrest to be a civil case. The Oklahoma HISTORY OF EXPUNGEMENT records on the residents of the Supreme Court recently stated: IN OKLAHOMA District of Columbia found that “the Before adoption of the gen- use of arrest records by prospective Generally speaking, the demar- eral expungement statute in employers was widespread, and the cation line between civil and 1987, 6 Oklahoma had no history consequences of a person having criminal subject matter is of judicial expungement of law been arrested, even if the charges well-defined and obvious, but enforcement records. It has been were subsequently dismissed, were that is not always the case. noted, “Traditionally, courts have severe.”10 It was noted in 1975 that Examples of legal proceedings been of the view that the matter of “only a few states have statutes which have both criminal and expunging an arrest record where providing for the expungement, civil components include … the arrestee has been acquitted sealing, or returning of the record expungement proceedings … was inappropriate for judicial when there is no conviction, and Contrary to the State’s asser- action, and that the entire matter often these involve a long and labo- tion, we do not believe that the was more appropriate for legisla- rious procedure.”11 It was also noted mere placement of [a statute] tive action.”7 In 1975, after a well- that state laws “vary considerably in within Title 22 renders the provi- known Oklahoma City attorney the relief given.”12 sion, ipso facto, a criminal enact- was acquitted of criminal charges The Oklahoma Legislature ment. Title 22 contains multiple in federal court, the United States enacted the general expungement provisions which are unques- Court of Appeals upheld the statute in 1987, making acquit- tionably matters of civil law.4 district court’s decision not to tal the first ground for statutory expunge arrest records pursuant expungement.13 The other original to its equitable power.8 The court grounds for expungement were:

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 13 no charges were filed or charges were dismissed within one year of the arrest; no charges were filed and the statute of limitations had expired; or the person was under 18 when the offense was committed and also had received a full pardon for the offense.14 In 1997, the Legislature added a new ground: conviction was reversed by appellate court with instruc- tions to dismiss; or the district attorney dismissed charges after a reversal of conviction.15

STATUTORY EXPUNGEMENT FRAMEWORK IN THE 21ST CENTURY The procedures for general expungement are found in the conviction or pending felony completion of sentence for Oklahoma Criminal Code16 or misdemeanor charge); felony conviction; and have remained essentially „„ Misdemeanor charge filed, „„ Conviction of not more than unchanged since enactment. The then dismissed following two nonviolent felonies, full grounds to qualify for expunge- successful completion of pardon for both offenses, no ment, however, have been expanded deferred judgment or charges pending, passage by amendment more than 10 delayed sentence, no felony of 20 years since the last times since the year 2000.17 As of convictions, no charges criminal conviction; November 2018, the following are pending, passage of one „„ Person charged, arrested the qualifications for an expunge- year since charge dismissed; or arrest warrant issued ment of criminal records:18 „„ Nonviolent felony charge for a crime committed by filed, then dismissed follow- another person who mis- „„ Acquitted; ing successful completion appropriated the person’s „„ Conviction reversed and of deferred judgment or name or identity. charge dismissed; delayed sentence, no felony „„ Factual innocence based on convictions, no charges The most far-reaching of these DNA evidence subsequent pending, passage of five newer grounds is found in para- to conviction; years since charge dismissed; graph 10, which as of November „„ Full pardon based on actual „„ Misdemeanor conviction, 2016 has permitted a defendant to innocence; sentenced to a paid fine of take a conviction and then imme- „„ No charges of any type $500 or less, no felony con- diately seek an expungement of were filed and limitations victions, no charges pending arrest and court records if the pen- period has run or prosecu- (there is no waiting period); alty was only a fine in an amount tor has declined all charges „„ Misdemeanor conviction, less than $501.19 including charges of a penalty exceeds $500 fine, A review of just over 500 different type; no felony convictions, no expungement cases filed pursuant „„ Juvenile offense with full charges pending, passage to Section 18 seeking expunge- pardon; of five years since end of ment of Oklahoma City Police „„ Charges filed, then dis- last misdemeanor sentence; Department arrest records from missed and will not be „„ Nonviolent felony con- Nov. 1, 2016, through June 30, refiled (does not include viction, no conviction for 2018,20 showed that expungement dismissals after deferred another felony or separate on grounds of actual or presumed judgment or delayed sen- misdemeanor in past seven innocence was sought in less than tence, and does not include years, no charges pending, 1 percent of these cases for all defendants with felony passage of five years since grounds in paragraphs 1, 2, 3, 4, 6

14 | MARCH 2019 THE OKLAHOMA BAR JOURNAL and 14 of Section 18(A) of Title 22. to the Oklahoma Supreme Court persons and for such purposes The other grounds based on actual and OSBI is a necessary party to named in such petition.”27 or presumed innocence, para- any appeal.23 Once an expungement order is graphs 5 and 7, were presented, Expungement of law enforce- entered, then “the subject official respectively, in 11 and 13 percent ment records comes in two main actions shall be deemed never to of the cases, less than one-fourth of varieties. Section 18(D) provides have occurred, and the person in the cases. On the other hand, more in general that grounds based on interest and all criminal justice agen- than three-fourths of the expunge- actual or presumed innocence24 cies may properly reply, upon any ment cases were based on grounds give rise to expungements that seal inquiry in the matter, that no such that did not exist until after an arrest record from the public as action ever occurred and that no such the year 2000: paragraph 8 was well as law enforcement agencies. record exists with respect to such invoked in 31 percent of the cases; Expungements based on grounds person.”28 An expungement order paragraph 9 in 15 percent; para- that allow for guilty pleas, deferred can be vacated or modified, after graph 10 in 16 percent; and para- sentencing, probation and even notice and hearing, only for change graph 11 in 10 percent. Paragraphs convictions, are to be “sealed to of conditions or for “a compelling 12 and 13 combined were invoked the public but not to law enforce- reason to unseal the records.”29 in fewer than 5 percent of the cases. ment agencies for law enforcement A case for expungement is a purposes.”25 Thus it is important case in essence against the records GENERAL EXPUNGEMENT in seeking relief to understand themselves. The court explained in PROCEDURE and to specify the underlying State v. McMahon:30 An expungement proceeding is statutory basis for the expunge- commenced by filing a petition in ment. Regardless of which type of The procedure prescribed for the district court sitting in the dis- expungement order is entered, to obtaining or opposing expunge- trict in which the arrest records in make an exception to the expunge- ment is almost summary in question are located.21 The arrest- ment order thereafter requires nature and the issues are very ing agency, prosecuting agency a new petition to be filed by the narrow in scope. The proce- and Oklahoma State Bureau of attorney general, the prosecuting dure includes (1) the filing of a Investigation (OSBI) are entitled to agency or “by the person in interest motion or petition; (2) notice to notice of 30 days before a hearing who is the subject of such records.”26 the district attorney, the arrest- is conducted.22 Any agency or The court may allow inspection of ing agency, the Oklahoma State aggrieved party can file an appeal the expunged record “only to those Bureau of Investigation, and any other interested person or agency; and, (3) hearing of the petition and objections from the agencies notified. No response to an objection is provided. The focus of the petition, objections, Once an expungement order is entered, then “the and hearing is on records kept subject official actions shall be deemed never to by authority of law. Moreover, the plaintiff in an have occurred, and the person in interest and all expungement case need not prove any harm to make a prima facie case – criminal justice agencies may properly reply, upon the existence of an arrest record, and qualification under any of the any inquiry in the matter, that no such action ever statutory grounds for expunge- ment, is sufficient to shift the occurred and that no such record exists with burden to the government to show that the public interest in keeping respect to such person.” the records open to the public is greater than the plaintiff’s interest in sealing the records.31 After the hearing has been con- ducted (or an order approved by all

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 15 affected agencies has been collected ABOUT THE AUTHOR aspects of expungement practice. See Edward D. by the plaintiff), the court may enter Hasbrook, “Expungement: The Second-Chance Orval Edwin Jones graduated from Statutes,” 66 O.B.J. 2503 (July 29, 1995). an order sealing all or any part of the OU College of Law in 1984 and 32. 22 O.S. §19(C). the records in question, or may 33. Id., §19(H). has been an assistant municipal 34. Id., §19(I). enter an order limiting access to counselor for the City of Oklahoma 35. Id., §19(K). such records.32 Expungement orders 36. Id., §19(F). City since 1999. He was previously in 37. Id., §19(N). do not authorize a destruction of private practice, an assistant attorney 33 records. “For the purposes of this general and general counsel for section, sealed materials which are the Insurance Department. He is a recorded in the same document as member of the Evidence and Civil unsealed material may be recorded Procedure Committee. in a separate document, and sealed, then obliterated in the original doc- ENDNOTES ument.”34 Any sealed document can 1. This article is the personal work product 35 of the author and does not necessarily reflect the be destroyed after 10 years. policies or positions of the Oklahoma City Office of When an expungement order Municipal Counselor or the City of Oklahoma City. 2. Examples of special expungement statutes is in place, the plaintiff cannot be include: 22 O.S. §991c (expungement of court required by employers, educational records after deferred sentence in district court); 11 O.S. §28-123 (expungement of court records institutions, state or local govern- after deferred sentence or successful probation in ment agencies or officials to “dis- municipal courts of record); 22 O.S. §60.18 (sealing close any information contained in of certain victim protective order court records from public inspection); 10A O.S. §2-6-109 (expungement sealed records” in an interview or of juvenile records not otherwise confidential). job application.36 However, sealed 3. State ex rel. Hicks v. Freeman, 1990 OK CR 45, 795 P.2d 110. See also City of Lawton material can be used at any hearing v. Moore, 1993 OK 168, 868 P.2d 690 (criminal or trial for impeachment purposes court expungement does not include law enforcement records). 37 or as evidence of character. 4. Parsons v. District Court, 2017 OK 97, ¶¶17, 20, 408 P.3d 586 (citation omitted). 5. In re Adoption of Supreme Court Rules for CONCLUSION Expungement of Records, 2005 OK 32, 120 P.3d 861. The past three decades have 6. Okla. Laws 1987, c. 87. 7. United States v. Linn, 513 F.2d 925, 927 seen a dramatic shift in the leg- (10th Cir. 1975), citing United States v. Dooley, islative policy related to public 364 F. Supp. 75 (E.D. Pa. 1973). 8. Id. at 928. access to arrest records. Prior to 9. Id. at 927. 1987, expungement of criminal 10. Morrow v. District of Columbia, 417 F.2d 728, 731 (D.C. Cir. 1969). records was nearly nonexistent 11. Note, “Criminal Procedure: Expunging the in Oklahoma. From 1987 until Arrest Record When There Is No Conviction,” 28 Okla. L. Rev. 377, 386 (footnotes omitted). 2000, statutory expungement 12. Id. at 386. has allowed the sealing of arrest 13. Okla. Laws 1987, c. 87, §1. 14. Id. records in cases in which the guilt 15. Okla. Laws 1997, c. 387, §1. of the defendant was never admit- 16. 22 O.S. §19. 17. See Historical Data annotating 22 O.S. ted or proved. Since 2000, quite a §18, most recently Okla. Laws 2017, c 127. variety of grounds for a limited 18. 22 O.S. §18(A) (2018 Supp.) 19. Okla. Laws 2016, c. 348, §1. expungement – sealing records to 20. The data set consisted of 518 cases in the public but leaving them open which the author entered a special or general to law enforcement agencies – have appearance. 21. 22 O.S. §19(A). been enacted to allow a defendant 22. Id., §19(B). to deny that he or she has ever been 23. Id., §19(C). 24. Paragraphs 1-7 and 14 of 22 O.S. §18(A). arrested, even after admitting guilt 25. 22 O.S. §18(D). or even taking a conviction. 26. Id., §19(E). 27. Id. 28. Id., §19(D). 29. Id., §19(L). 30. 1998 OK CIV APP 103, ¶4, 959 P.2d 607 (original emphasis, citation omitted). 31. Hoover v. State, 2001 OK CR 16, 29 P.3d 591. An article, written before these “presumed harm” cases shaped the substantive content of most general expungement orders, contains excellent comments regarding the practical

16 | MARCH 2019 THE OKLAHOMA BAR JOURNAL

Criminal Law Managing Expectations in Criminal Tax Defense – Yours and Your Client’s By John D. Russell and Andrew J. Hofland

S A CRIMINAL DEFENSE ATTORNEY, the prospect of squaring off with the Internal ARevenue Service and the Department of Justice may seem daunting. An accounting-heavy case is outside your bailiwick, or at least the cases you usually defend. The opposition is formi- dable. The imbalance of litigation resources is especially pronounced. After all, in this world nothing can be said to be certain, except death and taxes. Despite those concerns, a criminal tax case is, at its core, just another criminal case – albeit with a few distinctive facets. It has a familiar plaintiff with a familiar burden to provide evidence in accordance with familiar rules. Taking the time to learn the unfamiliar particularities of criminal tax enforcement cases can give you the confidence to competently and tactfully represent future taxpayer clients.

For the sake of background, evasion. Becoming familiar with coordinate their efforts and share the IRS Criminal Investigation these common forms of tax fraud information.3 It is unsurprising Division conducted over 3,000 will give you a base to operate with then that the IRS makes the civil investigations and brought indict- in advance of your next criminal nature of an investigation appar- ments in about 2,300 federal tax enforcement case. ent and the criminal aspect less criminal cases in fiscal year 2017.1 so. With the possibility of parallel Those numbers, which include tax UNDERSTAND THE CIVIL- proceedings, taxpayers can find evasion cases, represent a meteoric CRIMINAL DIVIDE themselves faced with a difficult fall from 2012’s 5,125 investigations Unlike other criminal cases, decision in an audit – 1) generously and 3,390 indictments,2 largely due many criminal tax enforcement cooperate, potentially incrimi- to continuing budgetary shortfalls cases spin off from parallel civil nating themselves, in the hopes and reduced manpower. Because proceedings. Parallel proceed- they satisfy the auditor’s con- of the decreases, the IRS prioritizes ings or parallel investigations can cerns; or 2) refuse to cooperate, certain types of cases. Amidst more involve either the same agency or receive unfavorable adjustments high-profile offenses, including cooperating agencies, and most stemming from “lack of sub- abusive return preparation and off- commonly occur with matters stantiation” and face an uphill shore tax evasion, the IRS remains involving the SEC, EPA and IRS. battle on appeal based on adverse focused on bread-and-butter In many tax cases, the IRS simul- inferences drawn from the refusal violations more likely to confront taneously conducts a civil audit to cooperate. Thus it is exceed- Oklahomans: 1) for individuals, and criminal investigation. While ingly important to evaluate the failure to report legitimately the investigations are techni- likelihood of whether a criminal earned income; and 2) for business cally separate, civil and criminal investigation will follow or has associations, employment tax agents, consistent with IRS policy, already begun.

18 | MARCH 2019 THE OKLAHOMA BAR JOURNAL Although the taxpayer may not know what signs to look for, there are telltale indications that a criminal investigation is under- way. First, it’s important to note a revenue agent cannot mislead a taxpayer about the exclusively civil nature of an investigation.4 If a revenue agent states no other agencies are involved in the case or the agent is unaware of a crimi- nal investigation, the taxpayer can take those statements at face value. Unfortunately, it’s usually not that easy. To avoid any suppression issues related to the misinforma- tion of a taxpayer, IRS policy now states, “[u]nder no circumstances should the revenue officer inform the taxpayer that the case has been referred to CI.”5 Regardless, interactions with auditors have been known to provide both overt and subtle indications that there’s a hidden criminal investigation under the surface. Second, the players involved in the process can provide a dead giveaway. During a strictly civil matter, a taxpayer will encounter revenue officers and revenue agents. Revenue officers are tasked with collection. They deal with tax already assessed and may work to file notices of tax liens and levy wages or bank

MARCH 2019 | 19 A retained accountant will help you interpret your client’s financial records and figure out the potential tax liability based upon nuances within the Internal Revenue Code.

accounts. Revenue agents conduct GET A KOVEL FORENSIC attorney and accountant extends audits. They investigate unre- ACCOUNTANT ON the attorney-client privilege to ported income and scrutinize the BOARD EARLY the accountant as “outside help” propriety of deductions, credits Once a criminal investigation to promote “effective communi- and exemptions claimed on tax is imminent, the first thing the cation between the client and the returns. Because of the coordina- taxpayer should do is engage a lawyer.”8 Further, the agreement tion of efforts discussed above, qualified criminal defense attorney. can establish the accountant is the fact that the taxpayer and the In turn, the first thing the attorney being retained to help the tax- taxpayer’s accountant are solely should do is engage an accountant. payer client in anticipation of, or interacting with these IRS repre- Criminal tax enforcement cases boil during, litigation, thereby pro- sentatives does not guarantee the down to numbers. For the reasons tecting the accountant’s assistance absence of a criminal investiga- stated in the section below, those under the work-product doctrine. tion. However, the involvement of numbers will drive your client’s Resist the temptation to use an IRS special agent guarantees sentencing exposure; and therefore, your client’s existing accountants. the existence of one. Special agents the case. To exert maximal influ- You want a bright line between are the criminal investigators of ence on the outcome of the case the individual’s or business’ reg- the IRS, typically assigned to a and shape it along the way, you ular financial advice and advice separate division known as the and your client need to understand necessary for the provision of legal Internal Revenue Service Criminal those numbers as early as possible. services. When an accountant has Investigation Division (IRS CI). You can’t do it alone. As the 2nd performed both, the court may Third, and in a similar vein, Circuit put it in United States v. Kovel, more closely scrutinize the dis- revenue agents and revenue “[a]ccounting concepts are a foreign tinction between roles and require officers do not read taxpayers language to some lawyers in almost you to put on additional evidence their rights. As a matter of policy, all cases, and to almost all lawyers to avoid an order compelling special agents do.6 If the taxpayer in some cases.”7 A retained accoun- disclosure of the accountant’s is read his or her rights or gets tant will help you interpret your communications and work prod- wind that an IRS special agent is client’s financial records and figure uct. While 12 O.S. §2502.1 provides involved with the audit – whether out the potential tax liability based a level of protection for accoun- in-person, on a telephone confer- upon nuances within the Internal tant-client communications, you’re ence or carbon-copied on corre- Revenue Code. better off hiring a previously spondence – begin planning and To get the full and confidential uninvolved independent consul- preparing for a criminal case. benefit of your accountant’s ser- tant without fear of unwanted vices, you, as the criminal defense disclosure. Further, a Kovel attorney, should be the party to accountant will provide you not retain the accountant and should only with an unvarnished opinion do so through a Kovel agreement. of the taxpayer’s conduct, but also A Kovel agreement between the of the existing accountant’s work.

20 | MARCH 2019 THE OKLAHOMA BAR JOURNAL You may find your client relied on for employment tax evasion, the accuracy.14 In an ideal world, the faulty accounting when the chal- amount of evaded employment client would have perfect records lenged return was prepared, and taxes the business entity failed covering the entire relevant period the existing accountant may not to pay to the IRS. and proving unclaimed credits, be willing to accept responsibility As a criminal defense attorney, deductions and exemptions would for errors on the return. For these the greatest impact you can have be as simple as filing a record- reasons, you need an independent on your client’s case is to closely supported amended return, but examination of the existing record examine the government’s tax rarely is it that simple. More likely, to advise your client.9 loss calculation. Unabashedly, the you and your Kovel accountant government calculates tax loss will have to don a green eyeshade MASTER THE RELEVANT in the light most favorable to the and investigate how your client’s SENTENCING ISSUES government with little consider- business operated on a granular It’s all about the money. ation of the credits, deductions level to create an effective defense Calculations of tax loss and restitu- and exemptions that went unas- strategy. The key takeaway is: there tion will determine the outcome of serted by the taxpayer. Often the are several ways to calculate tax your case, most prominently at sen- IRS’s numbers are based on gross loss – do not take the government’s tencing. The unfortunate reality for receipts and the total amount calculation as a given. your client is that there is often no deposited into bank accounts In federal court, you can’t lose defense to the merits of the govern- without regard for expenses and sight of potential sources of rel- ment’s charge. Either income was other figures that would reduce evant conduct. Relevant conduct reported and taxes were paid, or your client’s tax liability for the permits the court to consider the they weren’t. While there are excep- relevant periods. Working closely defendant’s actions outside the tions,10 it is uncommon for there to with your Kovel accountant, you counts of conviction, if proven be an absolute defense or for the IRS can contest the IRS’s calculations merely by a preponderance of the to flat out get it wrong. More likely, and even counter with credits, evidence, to increase the tax loss the open questions relate to how deductions and exemptions 1) that calculation. For example, the court much should have been paid and relate to the tax offense and could may add to the loss amount based how much is currently owed. This have been claimed at the time of on uncharged state and federal tax is where your independent Kovel the offense, 2) that are reasonably offenses, conduct outside the stat- accountant becomes an indispens- and practicable ascertainable and ute of limitations and even charged able part of the defense team. 3) that are sufficiently supported conduct of which the defendant As early as possible, once the cli- by information in advance of sen- was acquitted. When the alleged ent engages you and your accoun- tencing to support their probable conduct of the taxpayer reveals tant, you need to conduct a deep dive into tax loss and restitution, along with other ancillary factors that determine advisory sen- tencing ranges under the United States Sentencing Commission’s Sentencing Guidelines.11 In federal court, nearly half of all sentences fall squarely within the range established by the guidelines.12 The sentencing range for tax crimes is driven primarily by the dollar amount involved, or the “tax loss.” The guidelines manual defines “tax loss” as the “total amount of loss that was the object of the offense.”13 For instance, in terms of failure to report legitimate earned income, the tax loss corresponds to the amount of tax the individual failed to pay on the unreported income;

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 21 a common pattern or scheme, you terms, including, for example, Finally, as may be self-evident, can anticipate the sentencing calcu- the potential to charge bargain, once you agree on the appropriate lation, regardless of the counts of the form of restitution and amount of tax loss and restitution, conviction, will include the aggre- presentencing advocacy. you forfeit the ability during the gate amount of each instance of the You should not anticipate you’ll presentencing phase to challenge scheme. The additional loss from be able to meaningfully charge those amounts. In the absence the relevant conduct can cause bargain with government counsel of a plea agreement, you retain the overall tax loss to jump into a due to the DOJ Tax Division’s major the ability to present evidence greater loss category, increasing the count policy. The policy, promul- in support of a reduced tax loss, defendant’s base offense level and gated in DOJ’s Justice Manual (for- which, if successful, will reduce yielding a higher advisory sentenc- merly known as the United States the sentencing guideline and the ing guidelines range. Attorneys’ Manual or USAM), restitution amount. One danger In addition to tax loss, you authorizes the prosecuting attorney of agreeing on tax loss and resti- need to focus on restitution; your to accept a plea only if it includes tution amounts is that your client client certainly will. Restitution the charge designated by the Tax can be locked in at those amounts, is the harm to the victim of the Division as “the major count,” even if it is subsequently shown crime, which in tax cases is the IRS. unless the prosecutor obtains they are in excess of what the Restitution is not the same as the tax exceptional approval from the taxpayer was obligated to pay.19 loss amount. While ultimately the Tax Division.15 The major count is In the absence of an agreement, figures may be closely related, tax typically the tax evasion count that you retain plenary rights to prove loss reflects the intended loss when carries the most severe penalties the accuracy of contested figures, the offense was committed, whereas involving the greatest financial loss appeal tax loss determinations restitution reflects, and is limited to, to the United States.16 As a result, and restitution awards and receive the IRS’s actual losses suffered as your ability to drastically improve a de facto restitution cap of the a result of the defendant’s conduct. your client’s position through amount lost for the count of convic- For instance, previous payments charge bargaining is limited. tion as opposed to an amount that on the tax liability would decrease For offenses under Title 26 of the includes relevant conduct. the harm to the victim at the time United States code, the government It’s not over when the taxpayer of sentencing, but interest can serve can only achieve a restitution order receives his or her sentence. The to increase the restitution amount through a plea agreement. Title 26 IRS may have follow-on action as the tax loss calculation remains does not contain the same restitu- since criminal restitution and static. Also, unclaimed deductions tion provisions as Title 18, but if the civil tax liability are separate and credits affect the real amount defendant agrees to restitution as and distinct. In 2010, Congress the taxpayer owes to the IRS and a bargained-for provision of a plea amended the tax code to include a therefore restitution. agreement, the court is permitted to provision for assessing restitution. Your grasp of the concepts of order restitution as an independent Section 6201 of Title 26 autho- tax loss and restitution will deter- part of the sentence.17 Otherwise, in rizes the IRS to assess as a tax the mine your sentencing strategy and the absence of a plea agreement, a amount awarded as restitution in whether your client pleads with a court desiring to award restitution a criminal tax case.20 Prior to the written plea agreement or without. must make payment of restitution enactment of Section 6201, the IRS Typically, in a plea agreement, a condition of supervised release or couldn’t assess or take administra- the government will require your probation.18 What’s the difference tive action to collect an assessed or client to waive a panoply of rights between an agreed-up restitution assessable amount of restitution. in exchange for some certainty as order and a condition to make The IRS can also assess interest to sentence, tax loss calculations restitution on supervised release from the date the return was or and restitution amounts. Your or probation? A restitution order should have been filed, not the evaluation of the facts and how is a money judgment that will last date the IRS assessed the resti- good the deal is relative to those 20 years, whereas a requirement tution. In the case of a tax return facts will determine, as with other to pay taxes owed under Title 26 is preparer convicted of aiding and plea negotiations, whether to limited to a 10-year statute of lim- assisting the preparation of false plead pursuant to an agreement. itations and confined to collection or fraudulent returns under 26 Be forewarned, however, that tax by the IRS. Restitution orders are U.S.C. §7206(2), your client could crime idiosyncrasies affect the subject to the government’s broader be assessed the amounts owed by value of certain plea agreement collection tools. every client for which the preparer

22 | MARCH 2019 THE OKLAHOMA BAR JOURNAL prepared a false return. The Andrew J. (A.J.) Hofland is a trial return preparer would never have lawyer at GableGotwals, focusing been individually liable for the on white-collar criminal defense client’s taxes, but with a restitution and civil litigation. He previously assessment, it is possible, includ- served as an assistant U.S. ing interest that wouldn’t be recov- attorney for the Northern District erable under the restitution order. of Oklahoma and a Navy judge You should become familiar with advocate. He graduated from Notre each facet of the potential finan- Dame Law School in 2009. cial impact of a tax conviction and

sentence on your client. ENDNOTES 1. IRS-CI Fiscal Year 2017 Annual Report, CONCLUSION www.irs.gov/pub/foia/ig/ci/2017_criminal_ investigation_annual_report.pdf. Criminal tax cases are different 2. IRS-CI Fiscal Year 2012 Annual Report, from a criminal defense attorney’s www.irs.gov/pub/foia/ig/ci/REPORT-fy2012-ci- annual-report-05-09-2013.pdf average case, but getting involved 3. Internal Revenue Manual §5.1.5.5. early – hopefully long before the 4. United States v. Tweel, 550 F.2d 297 (5th Cir. 1977). case is ever charged – and spending 5. IRM §5.1.5.7. the requisite time to get familiar 6. IRM §9.4.5.11.3.1. 7. United States v. Kovel, 296 F.2d 918, 922 with the nuances of defending tax (2d Cir. 1961). cases is essential to effectively rep- 8. Id. 9. The relevant defenses to a criminal tax resenting your client. Practitioners case are beyond the scope of this article, but need to educate themselves with practitioners should note that good faith reliance upon a professional or return preparer is a the indispensable outside help of a defense to a charge under 26 U.S.C. §7206(1). Kovel accountant, regarding tax-spe- 10. The most common defense is lack of scienter. The government must prove beyond cific defenses, charging alternatives a reasonable doubt that the taxpayer willfully favorable to the client and the case committed the offense. Cheek v. United States, 498 U.S. 192, 201 (1991). in mitigation. There is often no via- 11. United States Sentencing Commission, ble defense to a criminal tax charge; Guidelines Manual (November 2016). 12. U.S. Sentencing Comm’n, Interactive IRS special agents are good at what Sourcebook, Fiscal Year 2017, Table N, isb.ussc.gov. they do.21 The key to effectively 13. USSG §2T1.1(c). 14. USSG §2T1.1(c), comment. (n.3). defending your client is to stay out- 15. U.S. Dep’t of Justice, Justice Manual come-focused and lay the ground- 6-4.310 (2018), www.justice.com/jm/jm-6-4000- criminal-tax-case-procedures#6-4.310. work to reduce the consequences of 16. Id. your client’s conduct. Armed with a 17. 18 U.S.C. §3663(a)(3); see United States v. Anderson, 545 F.3d 1072, 1077-78 (D.C. Cir. 2008); little understanding of the criminal United States v. Firth, 461 F.3d 914, 920 (7th Cir. tax landscape and a thoughtful 2006); see also United States v. Gottesman, 122 approach, you can begin to gener- F.3d 150, 151-52 (2d Cir. 1997) (for the district court to order restitution pursuant to a plea ate favorable outcomes for taxpay- agreement, the plea agreement must clearly ers in these cases. contemplate such an order). 18. See 18 U.S.C. §3583(d); 18 U.S.C. §3563(b); 18 U.S.C. §3556; see also USSG §5E1.1(a)(2); Gall v. United States, 21 F.3d 107, 109-10 (6th Cir. 1994) (recognizing the propriety ABOUT THE AUTHORS of plea agreement-based restitution orders in the John D. Russell is co-chair of the sentencing guidelines and case law). 19. See e.g. Choi v. United States, 2018 WL White-Collar Criminal Defense & 620454 (D. Md. 2018) (argument that restitution Corporate Investigations Group amount in plea agreement was more than what was owed was unavailing, in part, due at GableGotwals. He has over to defendant’s agreement). 30 years’ experience practicing 20. This does not affect the restitution order, upon which the government can seek collection. criminal and civil litigation, 21. We leave for another day a discussion including service as an assistant of the best way to defend a criminal tax trial, primarily because they’re nearly as extinct as the U.S. attorney for the Northern black-footed ferret. District of Oklahoma and a trial attorney for the U.S. Department of Justice Tax Division.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 23 Criminal Law The iPhone, the Speaker and Us Constitutional Expectations in the Smart Age By Mbilike Mwafulirwa

LEXA, WHAT TIME IS IT?” That’s normal to ask these days. We have come to “A expect answers to such questions, especially in this age of Alexa, Siri, smartphones and devices.1 What about, for example, this question: “Alexa, who killed Victor?” Too far- fetched? Actually not.

That very question was the The two cases raised common chief medical examiner ruled that subject of a murder prosecution questions, summed up this way: Collins’ death was a homicide.9 in Arkansas.2 A victim died in a Can the government compel dis- Bates’ home was no ordinary home that had the Amazon Echo closure of the user’s data in those home – it was an impressive tech- speaker (Alexa) installed and smart devices? If so, under what filled fortress. The home was filled operational.3 Alexa is a wireless circumstances? Before courts could with a wide-array of “smart home” computer speaker that works by answer those questions in both devices – a smart thermostat, a constantly listening for its “wake cases, the issues became moot. smart alarm system, Amazon word” – trigger words like “Alexa” However, given the importance of Echo digital assistant and so on.10 or “Amazon” – that cause the the constitutional questions raised Typical warrant-sanctioned home equipment to record voice com- and the high likelihood of recur- searches focus on the interior, mands and transmit them to a rence, this article attempts a more but when particularity require- processor that analyzes them in searching analysis of those issues. ments are met, computers and order to fulfill a request.4 So, it like devices are fair game.11 is possible, the police suggested, ALEXA, HOW DID VICTOR DIE? In the Arkansas case, the that in the process of recording a Nov. 22, 2015, was anything police took particular interest in user’s voice commands that Alexa but a typical day. James A. Bates, the defendant’s Alexa. The police can also capture other back- a homeowner in Bentonville, believed that Alexa is always ground sounds – even possibly Arkansas, called 911 to report that recording what happens around the critical moments of a crime. one of his overnight guests, Victor it.12 In truth, as noted, Alexa Amazon stores Alexa’s recordings Collins, was found dead, facedown, is always listening for its “wake remotely.5 The police demanded in the hot tub in his backyard. word” – trigger words like “Alexa” that Amazon produce the defen- When the police responded to or “Amazon” – and only starts dant’s Alexa’s remote recordings.6 Bates’ call that Sunday morning, to record when the system picks Not long ago, another prominent they indeed found Collins’ body up those trigger words.13 That, in criminal prosecution also rested as had been described on the call; turn, triggers the system to analyze on the contents of a smart device – but in addition, they found that the and attempt to process the user’s think the FBI and the locked iPhone victim’s left eye and lips were dark command that follows the trigger in California.7 The FBI wanted to and bruised. The police also found word. The police believed that in access the iPhone, and it asked a blood spots around the tub, as well the process of recording, Alexa federal court to force Apple to create as broken bottles and knobs. The could also have captured other software to unlock the smartphone.8 police suspected foul play. The background sounds or information

24 | MARCH 2019 THE OKLAHOMA BAR JOURNAL that might shed some light on what censorship; moreover, Amazon to unlock an iPhone of interest in happened to Collins.14 argued that level of government a criminal investigation.20 The All After Bates declined a vol- intrusion would have a chilling Writs Act is a federal statute that untary search of his Alexa data, effect on expressive activity.16 empowers federal courts to issue Amazon filed a motion to quash Amazon also made a secondary “all writs necessary or appropriate” the search warrant. Amazon privacy argument. Citing Supreme to parties and to nonparties alike argued that given the import- Court precedent, Amazon argued in civil and criminal cases in aid ant First Amendment and user that Alexa, like a cellphone, con- of their jurisdiction.21 The range of privacy interests at stake, a gen- tained sensitive personal data that orders under the act vary greatly.22 eral broad search warrant was was “[t]he sum of an individual’s As relevant here, in the iPhone case, insufficient – the state needed private life.”17 That argument, Apple, like Amazon in Arkansas, to meet a heightened burden for however, was not extensively raised First and Fourth Amendment disclosure.15 The gist of Amazon’s developed, probably with good objections among others.23 First Amendment argument was reason. At the time, Supreme that the user’s requests to Alexa Court precedent made clear that THE GREAT LEGAL BATTLES encompass traditionally protected Americans had no expectation of THAT NEVER WERE requests for information and privacy in information voluntarily Ultimately, the two cases faced a the right to seek and engage in shared with third parties.18 similar fate; before the courts could commercial transactions. Alexa’s rule on the weighty questions, the responses back to the user are also WHAT’S ON THAT IPHONE? issues became moot. Bates released protected speech because internet In the locked iPhone case, the the requested information and searches are generally considered FBI moved under the All Writs the charges were dropped, while protected speech. To allow the Act,19 and asked the federal court in in the iPhone case, the govern- government to read, review and California to order Apple to develop ment accessed the phone without listen to all of its user’s data was software to assist the government Apple’s assistance. 24

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 25 THE LEGAL BACKGROUND however, that Miller and Smith did The Internet, Software, Criminal Law ON THE ISSUES RAISED not rest only on the fact information and the First Amendment was shared; rather, those cases also Under longstanding First Carpenter v. United States – turned on the nature of the infor- Amendment principles, the people A Great Call for ‘We the People’ mation sought and any legitimate have the right to speak and receive In Carpenter,25 the Supreme expectation of privacy in their con- information and ideas.38 The First Court had to decide whether the tents.32 In a word, there is a world Amendment also encompasses government’s access of historical of difference between the limited a privacy element – the right to cellphone records that chroni- personal information at issue in engage in protected speech or cled in vivid detail a person’s Miller and Smith and the treasure associate anonymously without movements implicated the Fourth trove of personal information that government interference.39 The Amendment. Timothy Carpenter tracked Carpenter and his associ- Supreme Court has extended First and an accomplice were convicted ates’ movements in vivid detail for Amendment protections to internet of several counts of armed robber- a number of years.33 A mechanical speech.40 As the court has made ies based in large part on historical application of Miller and Smith was clear, the “vast democratic forums cellphone records that chronicled unwarranted; the expectation of of the internet” are now the new their movements. The 6th Circuit privacy was still intact, so a warrant public squares where core First affirmed the convictions because was needed to collect the data.34 Amendment activity takes place.41 although a defendant’s private Four justices entertained the That is why when law enforce- communications are protected, idea of a property-based solution ment wants to intrude upon core routing information like historical to the Fourth Amendment melee in expressive materials and data, they cell-site data is not.26 Carpenter.35 According to those justices, must initially show a meaningful The Supreme Court reversed. under certain circumstances, user data and particular nexus between the The court held that the govern- can be considered property. Based on requested information and the ment’s collection of the historical that assumption, under settled legal investigatory efforts.42 The nexus cell-site data was a search that principles, a user’s entrustment of his between First Amendment pro- required a warrant.27 The fact that property (for example emails) to a tected information and a criminal the data were business records third party does not always result investigation is bridged by a search did not change the analysis. As the court explained, the Fourth Amendment protects not only people’s rights in property but also their reasonable expectations of privacy.28 Thus, so long as a In Carpenter, the Supreme Court had to person intends to keep informa- tion private and the expectation of decide whether the government’s access of privacy asserted is one that society is willing to accept and protect, historical cellphone records that chronicled in then Fourth Amendment protec- tions attach.29 The case, the court reasoned, implicated Carpenter’s vivid detail a person’s movements implicated historically protected interests in his physical location and movements; the Fourth Amendment. prior cases had already recognized these as protectable interests.30 Carpenter’s phone data revealed detailed information about his exact in loss of ownership rights since warrant “particularly describe[d]” location and movements. The court the user still owns his property; the supported by probable cause.43 acknowledged, however, that its Fourth Amendment requires a war- The interplay between third- decisions in United States v. Miller rant before a search is performed on party subpoenas and the First and Smith v. Maryland held that that property.36 Three justices found Amendment is complex. A sub- there is no reasonable expectation of that Carpenter did not own his cell- poena, unlike a search warrant, privacy in information freely shared phone data, while Justice Gorsuch has no threshold probable cause with third parties.31 The court noted, found that argument forfeited.37 requirement – it is policed by

26 | MARCH 2019 THE OKLAHOMA BAR JOURNAL reasonableness and burdensomeness standards.44 In fact, the only mod- icum of judicial review comes into the picture after the subpoena has already been sent and received by the subject.45 Even then, courts have, at times, imposed some additional controls – like heighted need requirements – on subpoenas when important First Amendment interests are at stake.46

CONSTITUTIONAL ISSUES IN THE ALEXA AND IPHONE CASES The constitutional questions in the Alexa and iPhone cases were quite similar. In both cases, the Fourth Amendment was over- shadowed by the Miller/Smith third-party doctrine. Carpenter has changed that. As we explain, even assistants like Alexa are computers privacy because this information in the wake of Carpenter, the First that receive user voice commands is shared with third-party service Amendment might still play some and connect to the internet in providers.61 Carpenter repudiated role in third-party compelled dis- order to comply with the user’s that approach.62 First, as noted, the closure access cases. request.55 Users use smart assis- court noted that Miller and Smith tants, like other devices of similar do not categorically remove all Reasonable Expectation of Privacy import (cellphones, computers, expectation of privacy in the wake in User Data in Smart Devices etc.) for varied uses – commercial, of third-party disclosure.63 Second, Internal Cellphone User Data. familial, recreational, relational, the expectation of privacy calcu- The Supreme Court in Riley v. political, professional, sexual and lus greatly factors in the nature California47 already held that the so on.56 Understood in this light, and quality of the sensitive data government needs a warrant to smart assistants, like cellphones at issue; the more personal and access a user’s internal user data or other forms of personal com- revealing the information is, the on cellphones.48 The court stated puters, truly encompass the great likelihood that the expectation of that a warrant requirement was “privacies of life.”57 Thus, for those privacy remains. It is possible that reasonable because cellphones, smart assistants whose user data external data could also implicate due to their widespread use, con- can be accessed within the home, a the very privacies of life if the tain the privacies of life.49 warrant that specifies the specific requested information revealed a Internal Smart Assistant data to be searched in relation to person’s exact location, personal Data. Smart assistants are usually clearly articulated crimes would communications, services and located in the home.50 That fact likely be needed.58 goods procured and intimate, alone necessitates a somewhat External Data on Cellphones anonymous or political affiliations different analysis because in and Smart Assistants. Carpenter’s and views, among others.64 Third, Fourth Amendment parlance, “the effect is most robust in this area. for that class of sensitive data, the home is first among equals.”51 In Cellphones transmit histori- user is forced to “share” the infor- his home, a man may retreat into cal data and communications mation with the service providers peace and be free from govern- through air waves.59 Similarly, as a precondition to use; Carpenter ment intrusions on his papers, Alexa transmits commands and refused to read those arrange- property and effects.52 In the search data to Amazon, which ments as being voluntary, which is home, “privacy expectations are stores it remotely.60 In the past, a what Miller and Smith require for most heightened.”53 Such that, as a mechanical application of Miller the third-party doctrine to apply.65 threshold matter, a search warrant and Smith would have categori- Altogether, a warrant would be for the home is required.54 Smart cally negated any expectation of needed. Moreover, as Carpenter

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 27 made clear, when a warrant is different twist – the government new speech.81 In an appropriate required, the government cannot arguably wanted to compel an case, depending on the competing circumvent Fourth Amendment innocent third party to create interests at stake, the issue will protections with use of a subpoena software to break into a device. require greater clarity from the or generalized court order.66 Software, some courts have found, U.S. Supreme Court. is a form of speech.74 Thus, forcing External Data Could Also a company to engage in speech CONCLUSION Have Property-Oriented it objects to, is probably contrary Conventional First and Fourth Constitutional Protections to the First Amendment unless Amendment tests do not fully In the 2017 term, the court narrowly tailored to further a com- answer questions posed by the decided Byrd v. United States,67 pelling state interest.75 Because the internet, smartphones and devices a case that affirmed that under government does not act as an eco- of today. Data is increasingly established property law princi- nomic regulator in those situations, electronic and expressed on the ples, a person who owns or has the commercial speech doctrine, great fora of the internet. Thus, lawful possession of property has which has a greater tolerance for the scope of privacy expectations a right of privacy, by virtue of compelled speech, is inapplicable.76 will likely continue to shift and the inherent power to exclude.68 In fact, outside the commercial challenge traditional modes of Taking cue from Byrd and other speech context, the government criminal investigation and settled longstanding precedents, four generally crosses an impermissi- conceptions of liberty. justices, Justice Gorsuch chiefly, ble line when it forces a person to were open to the idea that a property- accommodate or incorporate other based solution could have resolved speech that affects the speaker’s ABOUT THE AUTHOR the external data problem encoun- original message.77 In the iPhone Mbilike Mwafulirwa is an attorney at tered in Carpenter.69 The premise of case and many others like it, the Brewster & DeAngelis. His practice the argument was straightforward: service provider gives assurances focuses on complex litigation, civil the defendant must have lawful to its users that the software on rights and appellate law. He is a possession or interest in the prop- the phone secures their data from 2012 graduate of the TU College erty.70 Taking this as a starting point, unauthorized third parties. Forcing of Law. Justice Gorsuch argued in Carpenter those service providers to create a that contemporary statutory and software that permits a backdoor ENDNOTES common law appeared to recognize entry to their equipment for the 1. “M. Jones, List of Alexa commands you’re not using but should be”, komando.com, that electronic data generated by a government and other unautho- www.komando.com/tips/386042/list-of-alexa- user is his property despite being rized third parties arguably sends commands-youre-not-using-but-should-be (last seen Feb. 3, 2019). entrusted to a third party, but he an entirely different message to the 2. Search Warrant, State v. Bates, CR-2016- found the argument forfeited in users. The new software, it could be 370-2 (Ark. Cir. Ct. Jan. 29, 2016). 71 3. Id. Carpenter. If Justice Gorsuch’s argued, takes up space the device 4. Amazon Br. 4, State v. Bates, CR-2016- property-based premise is accepted, company could have used for other 370-2 (Ark. Cir. Ct. Feb. 17, 2017). 78 5. See Search Warrant, State v. Bates, then Byrd and other settled prece- information or software it desires. CR-2016-370-2 (Ark. Cir. Ct. Jan. 29, 2016). dents could also provide additional The counter-argument is, 6. Id. 7. In re Search of an Apple iPhone, ED 15- Fourth Amendment protections in however, equally compelling: 0451M, 2016 WL 618401 (C.D. Cal. Feb. 16, 2016). external user data cases.72 the legal system routinely com- 8. See Gov’t App & Memo. of Law, In Search pels witnesses through deposition of an Apple iPhone, 2016 WL 680288 (C.D. Cal. Feb. 16, 2016). The First Amendment Could or trial subpoena to testify and 9. See Search Warrant, State v. Bates, Still Play a Role in an iPhone generate speech they otherwise CR-2016-370-2. 10. See id. 79 Break-in Sort of Case would not. That power, which is 11. See United States v. Otero, 563 F.3d 1127, Carpenter and possibly Byrd essential to a proper exercise of the 1132 (10th Cir. 2009). 12. Id. (to the extent Justice Gorsuch’s judicial function, predates the First 13. Amazon Br. 4, State v. Bates, CR-2016-370-2. view carries sway) will probably Amendment.80 However, unlike 14. See Search Warrant, State v. Bates, CR-2016-370-2. significantly reign in the reach of compelling a witness to testify in 15. See Amazon Br. 9-13, State v. Bates, the Miller/Smith third-party disclo- court, which is generally limited CR-2016-370-2. 16. Id. sure doctrine in most situations to pre-existing facts and documents 17. Id. at 9 (quoting Riley v. California, 134 involving sensitive data shared within the person’s knowledge S.Ct. 2473, 2489 (2014)). 73 18. United States v. Miller, 425 U.S. 435, with service vendors. The iPhone or control, creation of software 443 (1976); Smith v. Maryland, 442 U.S. 735, case, however, presented a slightly arguably requires generation of 741 (1979).

28 | MARCH 2019 THE OKLAHOMA BAR JOURNAL 19. 28 U.S.C. §1651. 42. See Quantity of Books v. Kansas, 378 69. See Carpenter, 138 S.Ct. at 2230 20. See In re Search of an Apple iPhone, 2016 U.S. 205, 209-213 (1964) (Plurality Opinion) (Kennedy, J., dissenting); id. at 2269 WL 618401. (citations omitted). (Gorsuch, J., dissenting). 21. See Clinton v. Goldsmith, 526 U.S. 529, 43. See, e.g., Zurcher v. Stanford Daily, 436 70. Byrd, 138 S.Ct. at 1529. 537 (1999); ITT Comm. Dev. Corp. v. Barton, 569 U.S. 547, 564 (1978); Stanford v. Texas, 379 U.S. 71. See Carpenter, 138 S.Ct. at 2270 F.2d 1351, 1359 (5th Cir. 1978). 476, 485 (1965). (Gorsuch, J., dissenting) (collecting cases). 22. Harris v. Nelson, 394 U.S. 286, 299-300 44. See Carpenter, 138 S.Ct. at 2222; see also 72. See, e.g., Byrd, 138 S.Ct. at 1527; Katz, (1969) (in aid of discovery); United States v. New United States v. R. Ent., Inc., 498 U.S. 292, 301 (1991). 389 U.S. at 352; see also generally Jardines, York Times Tel. Co., 434 U.S. 159, 174 (1977) (in 45. See United States v. Nixon, 418 U.S. 683, 569 U.S. at 6-8. aid of justice in criminal case). 691-692 (1974). 73. See Carpenter, 138 S.Ct. at 2217-2219; 23. See Apple Mot’n to Vacate & Memo. of 46. Gibson v. Fla. Leg. Invest. Comm., 372 Byrd, 138 S.Ct. at 1527. Law, In re Search of an Apple iPhone, at 322-344. U.S. 539, 546 (1963) (heightened requirements 74. Univ. City Stud., Inc. v. Corley, 273 F.3d 24. “Arkansas judge drops murder charge for subpoena that implicated First Amendment 429, 449 (2d Cir. 2001); Junger v. Daley, 209 in Amazon Echo case”, CNN, www.cnn.com/ interests); In re Grand Jury Subpoena to F.3d 481, 485 (6th Cir. 2000); cf. Brown v. Entm’t 2017/11/30/us/amazon-echo-arkansas-murder- Kramerbooks & Afterwords Inc., 26 Media L. Rep. Merch. Ass’n, 564 U.S. 786, 790 (2011) (video case-dismissed/index.html (last accessed Feb. 2, (BNA) 1599, 1600-1601 (D.D.C. 1998); Amazon.com games are a form of speech). 2019); “The FBI Drops Its Case Against Apple v. Lay, 758 F. Supp. 2d 1154, 1172 (W.D.W. 2010). 75. W. Va. Bd. of Edu. v. Barnette, 319 U. S. After Finding a Way Into That IPhone”, The Wire, 47. 134 S.Ct. 2473 (2014). 624, 642 (1943); Turner Broad. Syst. Inc. v. FCC, www.wired.com/2016/03/fbi-drops-case-apple- 48. Id. at 2489. 2493. 512 U.S. 622, 662 (1994). finding-way-iphone/ (last accessed Feb. 2, 2019). 49. Id. at 2494-2495. 76. See Glickman v. Wileman Bros. & Elliot, 25. 138 S.Ct. 2206 (2018). 50. Brian Chen, “How to Make Your House Inc., 521 U.S. 457, 459 (1997). 26. Id. at 2212-2213. a Smart Home”, N.Y. Times, www.nytimes.com/ 77. See Hurley v. Irish-Am. Gay, Lesbian & 27. Id. at 2220-2021. guides/technology/how-to-make-a-smart-home Bisexual Grp. of Boston, 515 U.S. 557, 573-574 (1995). 28. Id. at 2217. (last seen Feb. 3, 2019). 78. See, Apple Mot’n to Vacate Order, In re 29. Id. at 2213. 51. Florida v. Jardines, 569 U.S. 1, 6 (2013). Search of an Apple iPhone, 2016 WL 680288; see 30. Carpenter, 138 S.Ct. at 2217-2218. 52. See Silverman v. United States, 365 U. S. also e.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 31. Id. at 2216-2217. 505, 511 (1961). 241, 256 (1974) (compelled speech would “take up 32. Id. 53. California v. Ciraolo, 476 U. S. 207, 213 (1986). space that could be devoted to other material the 33. Id. at 2218-2219. 54. Payton v. New York, 445 U.S. 573, 586 (1980). [publisher] may have preferred to” publish). 34. Id. at 2219. 55. Amazon Br. 4, Bates, CR-2016-370-2. 79. See Gov’t Reply Brief in Supp. of Mot’n 35. Id. at 2230 (Kennedy, J., dissenting, 56. See Carpenter, 138 S.Ct. at 2217 to Compel, In re Search of an Apple iPhone, 2016 joined by Thomas, J., and Alito, J.); id. at 2269 (citations omitted). WL 680288 (citing Murphy v. Waterfront Comm’n (Gorsuch, J., dissenting). 57. See, e.g., Riley, 573 U. S. at 2494-2495. of N.Y. Harb., 378 U.S. 52, 93-94 (1964), abrogated 36. See, e.g., Carpenter, 138 S.Ct. at 2278 58. Cf. id. at 2489; cf. Otero, 563 F.3d at on other grounds, United States v. Balsys, 524 (Gorsuch, J., dissenting); id. at 2230 (Kennedy, J., 1132 (particularized warrant needed for U.S. 666 (1988)); see also generally Carpenter, 138 dissenting). computer searches). S.Ct. at 2247-2251 (Alito, J., dissenting). 37. Id. at 2272 (Gorsuch, J., dissenting); id. at 59. See Carpenter, 138 S.Ct. at 2211-2212. 80. See New York Tel., 434 U.S. at 175 n. 24. 2229-30 (Kennedy, J., dissenting). 60. Amazon Br. 4, Bates, CR-2016-370-2. 81. Id. (First Amendment, notwithstanding, 38. See Stanley v. Georgia, 394 U.S. 557, 61. Carpenter, 138 S.Ct. at 2216. when compelled by judicial process, witnesses 564 (1969). 62. Id. at 2218-2219. must testify as to what they know); accord 39. McIntyre v. Ohio Elections Comm’n, 514 63. Id. at 2219. Branzburg v. Hayes, 408 U.S. 665, 682 (1972); U.S. 334, 357 (1995); accord NAACP v. Alabama, 64. Id. at 2217-2219. contrast with generally Corley, 273 F.3d at 449 357 U.S. 449, 462 (1958). 65. Id. at 2219-2220. (software is electronic speech that is purposefully 40. Reno v. ACLU, 521 U.S. 844, 870 (1997). 66. Carpenter, 138 S.Ct. at 2221-2222. created anew); accord Junger, 209 F.3d at 485. 41. See Packingham v. North Carolina, 137 67. 138 S.Ct. 1518 (2018). S.Ct. 1730, 1735 (2017). 68. Id. at 1527.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 29 Criminal Law Holt v. Hobbs Prisoner Religious Freedom Versus Prison Safety By John P. Cannon and Leann Farha

ELIGIOUS LIBERTIES ARE ONE OF ONLY A FEW constitutional rights prisoners Rretain upon entering confinement. However, even these rights are limited. American prisons have systemic safety and tracking issues which must be considered in analyzing prisoner requests for accommodations for religion. Courts across the country have strug- gled with this issue for decades and, unfortunately for prisoners, nearly absolute deference has been afforded to prisons to deny religious accommodations – until recently.

The United States Supreme accommodations for inmates and the Religious Freedom Restoration Court’s long-standing precedent on prison security concerns, in addi- Act (RFRA) of 1993 to extend prisoner religious accommodations tion to providing further explana- statutory rights that expanded was that prison officials, rather tion for the requirements for prison the religious liberties previously than courts, are best equipped officials to receive deference within provided under the Sherbert Test. to “deal with the increasingly the RLUIPA framework. In addition to nullifying Smith’s urgent problems of prison admin- “generally applicable law” caveat, istration,”1 and determine what RELIGIOUS FREEDOM the RFRA added to the Sherbert is a compelling state interest in AND PRISON SAFETY Test by requiring the government order to “maintain good order, BEFORE HOLT to demonstrate “application of the security and discipline.”2 Thus, Discussions regarding the burden to the person … is the least the Supreme Court has afforded relationship between prison restrictive means of furthering prison officials great deference safety and the religious free- that compelling governmental concerning issues of prison safety dom of prisoners became par- interest.”7 Congress depended on and security. However, courts have ticularly relevant in the wake of Section 5 of the 14th Amendment to allowed this deference to serve Employment Division, Department impose the RFRA’s requirements as a substitute for evidence.3 In of Human Resources of Oregon v. on the states. However, in City of many scenarios, prisoners have Smith, when the court abandoned Boerne v. Flores, the court held the not been afforded the “expansive the Sherbert Test, which consid- RFRA “exceed[s] Congress’s pow- protection for religious liberty” ered whether “some compelling ers under that provision.”8 provided by the Religious Land state interest…justifie[d] the In response, Congress enacted Use and Institutionalized Person substantial infringement of [an the RLUIPA in order to “preserve Act (RLUIPA). 4 individual’s] First Amendment the right of prisoners to raise However, the future may be right,”5 for a narrower test which religious liberty claims.”9 Passed brighter for inmates faced with held “neutral, generally applica- under Congress’ commerce and restrictions that conflict with their ble laws that incidentally burden spending powers, this statute religious practices. In 2015, the the exercise of religion usually “imposes the same general test Supreme Court decided Holt v. do not violate the Free Exercise as the RFRA but on a more lim- Hobbs, which has charted a new Clause of the First Amendment.”6 ited category of governmental course for balancing religious Congress responded by enacting actions.”10 The RLUIPA applies

30 | MARCH 2019 THE OKLAHOMA BAR JOURNAL “only to land use regulations and religious exercise of inmates.”11 Additionally, in an effort to branch off from First Amendment case law, RLUIPA broadened the RFRA’s definition of the “exer- cise of religion.” While the RFRA “defin[ed] ‘exercise of religion’ as ‘the exercise of religion under the First Amendment,’…Congress deleted [this] reference…and defined the ‘exercise of religion’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’”12 Despite several few dif- ferences, RLUIPA utilizes the same standard of review as the RFRA:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution…even if the burden results from a rule of general applicability, unless the gov- ernment demonstrates that imposition of the burden on that person – (1) is in furtherance of a compelling governmental inter- est; and (2) is the least restrictive means of furthering that com- pelling governmental interest.13

While the court does “not doubt that cost may be an import- ant factor in the least-restrictive means analysis,”14 it acknowl- edges RLUIPA “may require a

THE OKLAHOMA BAR JOURNAL government to incur expenses incarcerated at the Arkansas beliefs or prohibiting an individual in its own operations to avoid Department of Corrections from that which is mandated by imposing a substantial burden (department).21 The department’s his or her religious beliefs.”31 The on religious exercise.”15 grooming policy did not allow Supreme Court held the depart- Case law has provided further inmates to grow beards, but con- ment’s grooming policy substan- interpretation of RLUIPA’s appli- tained an exception for inmates tially burdened Holt’s religious cation to prisoners. In Burwell v. with a specific dermatological exercise by requiring him to choose Hobby Lobby Stores, Inc., the Supreme condition who were allowed to between shaving his beard and fac- Court held the RLUIPA “requires grow beards up to one-quarter ing punishment. After Holt met his the Government to demonstrate inch.22 As a devout Muslim, Holt burden of proof, the burden shifted that the compelling interest test is sought an exemption from this to the department to prove prohib- satisfied through application of the policy for religious reasons.23 Even iting Holt from growing a one-half challenged law ‘to the person’ – the though his faith prohibited him inch beard was the least restrictive particular claimant whose sincere from trimming his beard, Holt means of furthering the depart- exercise of religion is being substan- was willing to compromise and ment’s stated interests to prevent tially burdened.”16 The Burwell court grow his beard only to one-half the flow of contraband into their emphasized a prisoner’s request inch.24 Prison officials refused his facilities and prevent prisoners for an accommodation “must be proposal and warned Holt, “if [he] from disguising their identities.32 sincerely based on a religious belief chose to disobey, [he would] suffer Even though the court agreed and not some other motivation.” the consequences.”25 Holt filed suit prisons have a compelling inter- Under RLUIPA, the petitioner not in federal district court. est in preventing the flow of only bears the burden of showing The magistrate judge recom- contraband into prisons and in “the relevant exercise of religion is mended to the district court that quickly identifying prisoners by grounded in a sincerely held reli- Holt’s complaint should be dis- not allowing facial hair, they were gious belief,” but also, “the burden missed on the basis prison officials not convinced that the depart- of proving that [the government’s are accorded deference on secu- ment’s grooming policy was the policy] substantially burdened rity matters.26 The district judge least compelling means by which that exercise of religion.”17 Once adopted this recommendation and to further this interest.33 At an a plaintiff meets his burden, “the dismissed Holt’s complaint and evidentiary hearing, the depart- onus shifts to the government to the Court of Appeals for the 8th ment provided two witnesses show that the burden furthers a Circuit affirmed the decision.27 Holt who testified inmates could hide compelling governmental interest appealed to the U.S. Supreme Court contraband in a one-half inch and that the burden is the least and the court granted certiorari to beard.34 Neither witness, however, restrictive means of achieving that decide whether the lower courts could recall an incident where compelling interest.”18 The court placed too much emphasis on the this had occurred in any prison, stressed in Cutter v. Wilkinson that deference owed to prison officials including their own.35 Despite due deference should be afforded and erred in dismissing the case.28 overseeing the beard lengths to “the experience and expertise of of those inmates permitted to prison and jail administrators.”19 SUPREME COURT’S have one-fourth inch beards, the This deference, however, is limited, DECISION IN HOLT department worried it would “be and “policies grounded on mere The Supreme Court began its unable to monitor the length of speculation, exaggerated fears, or analysis by determining whether [Holt’s] beard to ensure that it did post-hoc rationalizations will not Holt satisfied his burden of proof not exceed one-half inch.”36 The suffice to meet the act’s require- by showing his desire to leave his court was unconvinced by this ments.”20 Since Cutter, courts have beard untrimmed “[was] grounded argument, stating the department struggled to determine the level of in a sincerely held religious belief “offered no sound reason why hair, deference that should be afforded to that was substantially burdened clothing, and ¼-inch beards can be prison officials. However, the court’s by Department’s grooming pol- searched but ½-inch beards can- opinion in Holt v. Hobbs has shed icy.”29 The department did not not.”37 The department also argued much needed light on the issue. deny the sincerity of Holt’s belief.30 prison guards could be harmed if The Supreme Court has defined a razor was concealed in a beard BACKGROUND OF HOLT a “substantial burden” as “either during a search.38 This scenario still Gregory Holt, also known as compelling an individual to do that did not explain how this risk was Abdul Malik Muhammad, was which violates his or her religious unique to the search of one-half

32 | MARCH 2019 THE OKLAHOMA BAR JOURNAL The Supreme Court emphasized proof was essential in granting prison officials deference, finding “mere say-so that they could not accommodate petitioner’s request” insufficient.

inch beards. Further, the department ANALYSIS OF THE inch beards pose a security risk; failed to prove a less restrictive HOLT DECISION rather, they had to prove the groom- means did not exist, such as requir- The Holt decision is significant ing policy applied to Holt was the ing Holt to comb through his beard as it provides three guidelines least restrictive means of furthering to find hidden contraband.39 in applying the least restrictive its interest in prison safety. The Witnesses also expressed fear means requirement of RLUIPA: Supreme Court may have ruled inmates could alter their appear- 1) deference to prison officials differently had the department ance by shaving their beards, thus should not be granted unless they offered evidence that Holt was a hindering officers’ ability to quickly can prove that denying the exemp- violent offender. The Supreme Court and reliably identify prisoners.40 tion is the least restrictive means emphasized proof was essential in Since its prisoners work in fields of furthering a compelling gov- granting prison officials deference, and live in barracks, the department ernmental interest; 2) when other finding “mere say-so that they stressed that, compared to other prisons offer an accommodation, a could not accommodate petitioner’s prisons, its “identification concern prison must adequately explain why request” insufficient.48 is particularly acute.”41 The depart- it cannot adopt the accommodation In addition to raising the ment feared a prisoner might shave as a less restrictive means; and 3) a standard for applying deference, his beard, switch identification prison may not bar a religious prac- the court stressed the relevance cards with a fellow inmate while tice if it permits that same practice of analogous prison policies in working in the field and then gain for nonreligious reasons.45 an RLUIPA analysis. The court access to a restricted area.42 Yet, as While the court offered guidance explained, “when so many prisons with the hidden contraband con- on when prison officials should offer an accommodation, a prison cern, neither witness could offer a be afforded deference within the must, at a minimum, offer persua- reasonable explanation as to why RLUIPA analysis, it still did not pro- sive reasons why it believes that it this problem could not be solved vide a straightforward rule appli- must take a different course.”49 The with a dual photo approach – cable to all scenarios. To be granted fact so many other prisons allow the photographing an inmate with and deference, prison officials cannot same accommodation while simul- without a beard – a method utilized “merely explain why [they] denied taneously ensuring prison safety in many other prisons.43 the exemption but [must] prove that and security suggests the depart- The court unanimously reversed denying the exemption is the least ment could handle its problems the 8th Circuit’s decision, holding restrictive means of furthering a through a less restrictive avenue that the department’s policy, as compelling governmental interest.”46 than burdening Holt’s religious applied to Holt, violated RLUIPA Since the compelling interest test freedom. The court stressed “if a because it 1) substantially bur- is applicable “to the person” whose less restrictive means is available dened his religious freedom by religious exercise is being substan- for the government to achieve its prohibiting him from wearing tially burdened, the specific facts of goals, the government must use it.”50 the one-half inch beard his faith the case determine whether the bur- Since the department was unable required and 2) was not the least den is the “least restrictive means.”47 to explain why its concerns could restrictive means to furthering the For instance, it would have been not be handled by requiring pris- department’s compelling interest insufficient for the department to oners to comb through their beards in prison safety and security.44 prove some inmates with one-half and through utilizing a dual-photo

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 33 method, the court appropriately policies that may burden prisoners’ ENDNOTES found the department’s grooming exercise of religion. 1. Procunier v. Martinez, 416 U.S. 398, 405 (1974), abrogated by Thornburgh v. Abbott, 490 policy failed RLUIPA’s least-restrictive Holt has already made an impact U.S. 401 (1989). means requirement. on other cases. The court granted 2. Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006). Lastly, the court found when a the plaintiff’s petition for certiorari in 3. Dawinder S. Sidhu, “Religious Freedom and Inmate Grooming Standards”, 66 U. Miami L. policy is inconsistent in its appli- Knight v. Thompson, vacating the U.S. Rev. 923, 948 (2012). cation to analogous nonreligious Court of Appeals for the 11th Circuit’s 4. Holt v. Hobbs, 135 S.Ct. 853, 860 (2015). 5. Sherbert v. Verner, 374 U.S. 398, 406 (1963). conduct, the proposed compelling opinion and remanded it for further 6. Holt, 135 S.Ct. at 859. interests can likely be achieved consideration in light of Holt. After 7. 42 U.S.C.A §2000bb-1(b) (West 2015), abrogated by City of Boerne v. Flores, 521 U.S. th in a way that is less burdensome reviewing its decision, the 11 Circuit 507 (1997), superseded by statute as recognized to religion. Here, the department rejected petitioner’s three arguments in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). allowed prisoners with dermato- for why Holt should change the 8. Holt, 135 S.Ct. at 860. logical conditions to grow one- outcome. The 11th Circuit’s decision 9. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2774 (2014). fourth inch beards but denied Holt suggests federal courts may have a 10. Id. at 2761. permission to grow a one-half tendency to avoid the full effect of 11. Randi Dawn Gardner Hardin, “Knight v. Thompson: The Eleventh Circuit’s Perpetuation inch beard. To make sense of this Holt and instead rely primarily on of Historical Practices of Colonization”, 38 Am. exemption that seemingly under- Cutter to continue to extend a high Indian L. Rev. 579, 582 (2014). 12. 42 U.S.C.A. §2000cc-1 (West 2015). mines the purpose of the groom- level of deference to prison officials 13. Holt, 135 S.Ct. at 860 (citation omitted). ing policy, the court requested making policy decisions. 14. Burwell, 134 S.Ct. at 2781. 15. Holt, 135 S.Ct. at 860 (citation omitted). the department explain why its 16. Burwell, 134 S.Ct. at 2779 (citation omitted). grooming policy was underinclu- CONCLUSION 17. Holt, 135 S.Ct. at 862. 51 18. Spratt v. Rhode Island Dept. of sive. The department responded The court’s decision in Holt Corrections, 482 F.3d 33, 38 (1st Cir. 2007). by noting not only are one-half advances inmates’ right by raising the 19. Cutter v. Wilkinson, 544 U.S. 709, 717 (2005). 20. Rich v. Secretary, Florida Dept. of inch beards longer than one-fourth threshold a prison official must sat- Correction, 716 F.3d 525, 533 (11th Cir. 2013) inch beards but also that more isfy before legally restricting a prison- (citation omitted). 21. Holt, 135 S.Ct. at 859. prisoners request beards for reli- er’s religious expression. Additionally, 22. Id. at 856. gious rather than medical reasons. by clearing confusion associated 23. Id. The court was not swayed by the with RULIPA’s burden of proof, the 24. Id. at 857. 25. Id. at 861. department’s reasoning, finding a Supreme Court has paved the way 26. Id. at 862. one-fourth inch difference in beard for more consistent decisions among 27. Id. 28. Id. at 862. length and more requests unsub- lower courts. Few basic civilities 29. Id. at 857. stantial in “pos[ing] a meaningful exist behind prison walls. However, 30. Id. at 862. 31. Hobby Lobby Stores, Inc. v. Sebelius, 723 52 increase in security risk.” the future looks brighter for prison- F.3d 1114, 1139 (10th Cir. 2013). The court concluded by praising ers desiring to participate in their 32. Holt, 135 S.Ct. at 863. 33. Id. at 864. the balance the RLUIPA provides religion’s practices and expressions. 34. Id. at 861. in weighing the “religious exercise 35. Id. 36. Id. of institutionalized persons,” with 37. Id. at 864. prison officials’ need to maintain ABOUT THE AUTHORS 38. Id. 53 39. Id. safety and security. First, courts John Cannon is owner and founder 40. Id. are urged not to overlook “the fact of Cannon Law Firm PLLC. His 41. Id. at 865. 42. Id. that the analysis is conducted in the practice focuses on criminal 43. Id. at 858. prison setting.”54 Second, prisons defense, military defense and family 44. Id. at 859. 45. Supplemental Br. for the United States as are allowed to question the sincer- law. He is a judge advocate in the Amicus Curiae Supp. Plaintiffs-Appellants and ity behind a prisoner’s requested Oklahoma National Guard, currently Urging Reversal 6 April 20, 2015. 46. Id. at 864. religious accommodation if they serving the 45th Infantry Brigade. 47. Id. at 860. suspect that an ulterior motive Leann Farha graduated from 48. Id. at 866. 55 49. Id. at 866. exists. Finally, even if a prisoner’s the OU College of Law in 2017. She 50. 42 U.S.C.A. §2000cc-1 (West 2015). belief is sincere, the prison can take was an editor of the Oklahoma Law 51. Holt, 135 S.Ct. at 865. away the accommodation if “the 52. Id. at 866. Review and competed in moot court. 53. Id. at 859. claimant abuses the exemption in a She previously worked for OU’s 54. Id. at 866. manner that undermines the pris- general counsel and Feller, Snider, 55. Id. 56. Id. at 867. on’s compelling interests.”56 Holt’s Blankenship, Bailey & Tippens PC. application of RLUIPA requires a Ms. Farha currently works as a lawyer reassessment of prison grooming in Oklahoma City and at Allied Arts.

34 | MARCH 2019 THE OKLAHOMA BAR JOURNAL

Criminal Law Not So Hypothetical After All: Addressing the Remaining Unanswered Questions About Self-Driving Cars By Spencer C. Pittman and Mbilike Mwafulirwa

The machines are here, but the law isn’t.1 Ed Walters, Fastcase CEO

HE LAST TIME WE WROTE ABOUT SELF-DRIVING CARS, we presented a hypothet- Tical in which one of those cars killed a person.2 At the time, industry experts imagined it would be at least 2020 before self-driving cars would flood the streets, and as a corollary, it would probably take that long, if not longer, until the worst possible scenarios came to pass.3

We were all wrong. Recently, a have one glaring shortfall when it loophole? They still require driv- self-driving car killed a pedestrian comes to self-driving cars – they ers of self-driving cars to remain in Arizona.4 Other than permit- are all enforced on the assump- attentive to the road despite a ting self-driving cars to be tested tion that a human driver operated self-driving vehicle’s autonomous on its public roads, Arizona, like the vehicle. That is a problem feature being fully engaged. Tesla, Oklahoma, has no comprehensive because while the newest models a forerunner of the self-driving legislation regulating these cars. of self-driving vehicles still rely vehicle community, announced a With more of these cars being on a human to initially engage recent update to its system requir- manufactured and permitted on the autonomous feature, they can ing drivers not to take their hands American roads, the need for com- subsequently operate without from the wheel for extended prehensive legislation regulating further human input. Once the periods.6 Nissan’s “ProPilot” self-driving cars and their opera- autonomous feature is engaged, do system, another self-driving tors could not be more pressing. the state and local traffic codes still concept, displays a warning on Before, we discussed the need apply to the driver? Can a driver the dashboard when the driver for civil legislation to address the be cited for reckless or inatten- removes his or her hands from the advent of self-driving cars.5 Now, tive driving, or driving under the steering wheel.7 General Motors’ this article discusses the other side influence, if the self-driving feature 2018 CT6 Cadillac sedan, a car of the coin – the criminal and traf- is engaged for the duration of a that self-drives on limited high- fic law implications of self-driving trip? We tackle these very difficult ways for at least 350 miles, utilizes cars in the state of Oklahoma. questions in this article. eye-tracking software to ensure Our state’s formidable arsenal of How have self-driving car man- the driver’s eyes remain on the existing criminal and traffic laws ufacturers addressed this legal roadway. 8 The 2018 CT6 Cadillac

36 | MARCH 2019 THE OKLAHOMA BAR JOURNAL marketing website notes in the and buggies, and as between cars, is self-propelled.”24 Oklahoma law boilerplate, “Some state and local the governing law was referred to does not define “self-propelled.”25 laws may require hands to be kept as the rule of the road, imported Nonetheless, like here, when a stat- on the steering wheel at all times. from England.15 The rule was ute fails to give a specific meaning Only remove your hands from the simple: if two cars met on the to its words, the Oklahoma Court steering wheel if ... permitted by road, each was required to keep to of Criminal Appeals (OCCA) state and local laws.”9 the right – the goal was simply to construes the language used in that prevent collisions.16 Beyond that, it provision in its ordinary every- AUTOMOBILE REGULATION was every man for himself. day sense.26 Applying that rule to THROUGH THE TAPESTRY By about 1908, it was clear more “self-propelled” would require the OF TIME needed to be done. There were more word “self” – which is employed The self-driving car presents cars on American roads and with in a combining form – to be taken a regulatory enigma – in large that development came increased to mean “by yourself or itself” 27 measure because the current laws vehicle collisions, personal injuries while propel means “to drive, or presume a human driver actually and traffic jams.17 Detroit and New cause to move.”28 Altogether, that operating the vehicle. The law York City led the way in adopting phrase suggests that motor vehicles should address this new driverless stop signs, traffic signals, lane mark- are conveyances that self-drive29 challenge, but in order to properly ings, one-way streets, dedicated without reliance on “human or do so, the law in this area should forces of traffic officers and traffic animal power.”30 be considered as it was, and as it courts.18 By the mid-1920s, uniform Oklahoma has very nebulous currently is, so as to better appreci- street and highway safety rules were definitions for “driver” and “oper- ate how it should be. developed, and driver education and ator.” Under extant Oklahoma law, licensing soon followed in almost a driver is “any person who drives, Automobile Regulation – As It Was every state.19 This was the birth of operates or is in actual physical Throughout American history, the comprehensive traffic code and control of a vehicle.”31 Title 47 the subject of new modes of road motor vehicle and driver regula- defines a “person” to include transportation has animated the tion.20 Oklahoma joined these ranks “every natural person” but also public. As early as 1906, legal com- in 1937, when it passed traffic laws, inanimate objects like corpora- mentators of the day were ecstatic and simultaneously, established a tions, associations and the like.32 about a new form of conveyance – Department of Public Safety.21 As relevant to this discussion, “the horseless carriage,” also known however, an “operator” is “[e]very as the “automobile” – that had Automobile Regulation – As It Is Now person,” without qualification, started roaming public streets and Through the years, the con- “who operates, drives or is in highways.10 Before the 20th century, cern for motor vehicle safety has actual physical control of a motor there was apparently no single spawned thousands of sections of vehicle ... ”33 The statute does not reported legal case in the United Oklahoma legislation and agency define “operate,” “drives” or “actual States dealing with motorcars.11 The regulations.22 Nonetheless, out of physical control.”34 Turning first to proliferation of the motorcar had a the universe of contemporary motor the everyday meaning of the word spellbinding effect on the 20th cen- vehicle laws and regulation, this “drive;” within the specific context tury and its people, such that it was article will only focus on four spe- of cars, it means “to operate a vehi- considered a matter beyond “proph- cific areas: 1) the regulatory basics cle.”35 To “operate,” on the other esy” to predict where its growing of contemporary motor vehicles; hand, means to “work, perform, or influence might end.12 2) inattentive driving; 3) reckless function, as a machine does” or “to Even in the motorcar’s euphoric driving; and 4) the relation of the work or use a machine, apparatus, era, minimal regulation was self-driving car to existing law. or the like,” or simply to “produce ultimately necessary. For example, Regulatory basics of motor an effect.”36 Taking cue from those early vehicles tended to frighten vehicle regulation in Oklahoma. meanings, some courts have found, horses, which often resulted in Under existing Oklahoma law, a for example, that to operate a motor injury to the animal or the occu- “vehicle” is defined as “any device vehicle usually does not require pants of its carriage,13 and of in, upon or by which any person or the vehicle be in motion. All that course, there were eventually col- property is or may be transported must be shown is that the driver lisions between vehicles.14 At the or drawn upon a” public road- engaged the machinery or made time, judicial decisions required way. 23 A motor vehicle is, in turn, use of any mechanical or electrical motorcars to accommodate horses defined as “[a]ny vehicle which device of the vehicle.37 Not so in

38 | MARCH 2019 THE OKLAHOMA BAR JOURNAL In short, inattentive/distracted results in reduced driver situational awareness, decision-making and performance that can result in acci- dents or harm to other road users.52 Reckless driving. Under Title 47, reckless driving encompasses a “careless or wanton” operation of a motor vehicle “without regard for the safety of persons or property.”53 Careless or wanton under this statute is understood to mean culpable negligence.54 Culpable negligence, has in turn, been defined to mean more than the “slight negligence” applicable in civil cases.55 Instead, it is the kind of neglectful conduct that evidences “disregard of the con- Oklahoma. Under Title 47, “drive” municipalities, requires motorists sequences which may ensue from and “operate” have been held to to devote their full attention to the the act, and indifference to the be synonymous – both require the road and to exercise care toward rights of others.”56 The last prong vehicle to be in motion.38 other road users.45 What exactly of the test requires the defendant Lastly, we look at the concept of is inattentive driving? Oklahoma be shown to have conducted him- actual physical control, which is crit- statutes do not precisely say.46 The self “without regard to the safety ical to many of the offenses in Title statutes only expressly require of persons or property,” which 47. So often, the OCCA has encoun- “full attention,”47 which like generally requires a determina- tered and construed the meaning of many provisions in Title 47, is not tion whether, as judged by the these terms under Title 47, in cases defined.48 Drawing on everyday standards of a reasonable prudent of driving under the influence.39 usage, as we should,49 the phrase person in the same circumstances, In Parker v. State, for example, the “full attention” ordinarily means the defendant created danger for OCCA held that being in actual complete “concentration on what the safety of people or property.57 physical control while under the someone is doing or saying.”50 The Relation of the self-driving influence requires no motion.40 Case National Highway Traffic Safety car to existing law. We begin by law has since clarified that actual Administration (NHTSA), on the addressing the seemingly (but control of a vehicle can exist when other hand, recognizes inattentive maybe not so) obvious – what do a driver is sleeping in the driver’s driving (seen more like distracted we mean by self-driving car? The seat,41 even when he is unconscious driving) to encompass: NHTSA recognizes five levels behind the wheel.42 As the OCCA of automation in motor vehicles: has explained, the mere fact that a „„ Visual distraction: Tasks that level 0 – no automation;58 level 1 – driver “placed himself behind the require the driver to look driver assistance (driver controls wheel of the vehicle and could have away from the roadway to vehicle but has assist feature like at any time started the automo- visually obtain information; blind spot detection);59 level 2 – bile and driven away” is enough „„ Manual distraction: Tasks partial automation (driver controls to render him in actual physical that require the driver to vehicle but car has automated control of a motor vehicle.43 Another take a hand or hands off the functions like automatic emer- formulation indicates that any act steering wheel and manip- gency braking);60 level 3 – car can of “directing influence, domination ulate an object or device; drive itself some, but driver must or regulation” of a motor vehicle is „„ Cognitive distraction: Tasks be ready to re-take control (like sufficient actual physical control.44 that are defined as the men- self-park);61 level 4 – car is able to Inattentive driving. Both state tal workload associated with fully drive itself under certain con- and municipal law occupy the field a task that involves thinking ditions (like highway autopilot);62 of inattentive driving. The state about something other than and level 5 – car is able to drive of Oklahoma, followed by several the driving task.51 itself under all conditions.63 We will

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 39 focus on level 3 through 5 cars – the statutory construction maxim to drive/operate a motor vehicle, i.e., advanced automation. “expression unius est exclusion cars with advanced automation alterius” – “the mention of one features could be legal. To begin Under Limited Circumstances, thing in a statute implies exclu- with, under Title 47, drive and Existing Oklahoma Law Could sion of another”67 – leads to the operate are synonymous – they Permit Self-Driving Cars inescapable conclusion that other both require the driver/operator Oklahoma law requires a classes of inanimate objects, like to cause a moving effect on the human operator in the driver’s self-driving car systems, are motor vehicle.73 As such, if a seat of a motor vehicle for it to excluded from the definition of driver/operator of a vehicle with be lawfully driven or operated. person.68 Crucially, Title 47’s ref- advanced autonomous functions Multiple provisions of Title 47 erence to inanimate objects, cor- were to activate those capabilities confirm that a human driver is porations and the like, in no way producing movement, he or she required to be in the driver’s negates the requirement that there could be considered, as a matter seat to lawfully drive a car in must be a natural person driv- of law, to be driving/operating Oklahoma. To begin with, no ing or operating the vehicle on the vehicle.74 Under those circum- motor vehicle can be operated in Oklahoma roads;69 after all, corpo- stances, to borrow Judge Cardozo’s this state unless the person oper- rations (and the like) “‘separate and wording, albeit from a different ating it has, among others, a valid apart from’ the human beings who context, the driver/operator would driver’s license, wears a seat belt, own, run, and are employed by be considered “still the director is positioned to be able to use a them, cannot do anything at all.”70 of the [driving] enterprise ... [and] horn, has an unobstructed view of In sum, the law requires a human still the master of the ship.”75 the highway through the wind- driver or operator to be present in Under existing laws, the threat shield and rearview glass, is posi- the vehicle in order to lawfully drive of DUI prosecutions could still tioned to ably see the reflection or operate a motor vehicle. linger over intoxicated drivers/ of the highway on the left side of A motor vehicle with operators of autonomous cars. the mirror on the driver’s side and autonomous functions and a With such a low-level of involve- able to perform hand traffic sig- ready-driver/operator in the ment required for a person to be nals, as needed.64 Recall, a driver driver’s seat could be operated considered driving/operating a or an operator of a car under Title 47 in Oklahoma. Oklahoma law’s vehicle under existing law, supra, is simply a “person,” without definition of motor vehicle encom- it is possible the threat of a DUI qualification, who “drives” or passes a self-drive/self-propelled prosecution might still hang over “operates” a motor vehicle.65 The car – a car that moves without reliance intoxicated drivers/operators of self-driving cars unless the law is amended significantly. Suppose a driver/operator is intoxicated above the legal limit and puts him or herself in a position in the vehicle Depending on the level of control required under where he or she could operate/ command its functionality, even if Oklahoma law to drive/operate a motor vehicle, there was no actual movement of the vehicle, that could arguably suf- cars with advanced automation features could fice to show actual physical control of a vehicle while intoxicated under be legal. Tit le 47. 76 After all, under existing law, actual control of a vehicle exists when, for example, a driver is sleeping in the driver’s seat,77 or when he or she is unconscious Highway Code expressly limits on animal or human power.71 As behind the wheel.78 Likewise, if the the definition of person to natural noted, a motor vehicle requires a driver/operator’s actions resulted people and a limited class of inan- human operator, while a vehicle, in movement of the vehicle, that imate objects – corporations, firms, like a trailer, does not.72 could possibly serve still as a basis associations and co-ops.66 In fact, Depending on the level of con- for a charge of driving/operating a in case of doubt, application of trol required under Oklahoma law vehicle while intoxicated.79

40 | MARCH 2019 THE OKLAHOMA BAR JOURNAL An inattentive or reckless the safety features and benefits of regulations and vehicle operations driving charge for a driver/ self-operated cars is greater than generally to accommodate self-driving operator of a self-driving car, that afforded by humans exer- cars. Most notably, in response to without more, would raise very cising their best driving skills.88 Google’s request to the NHTSA to complicated questions. As noted, Under those circumstances and revisit its established interpretation Oklahoma lacks precise defini- existing law, prosecutions for these of driver in its regulations to accom- tions for inattentive and reckless two offenses will prove problem- modate self-driving cars, the agency driving. Oklahoma law requires atic and difficult to sustain unless agreed.92 The NHTSA has “full attention,” which ordinarily there are other operative factors re-interpreted “driver” –under means complete “concentration on that clearly show the driver was its regulations implementing what someone is doing,”80 while incapacitated or indisposed long the Federal Motor Vehicle Safety driving means “to operate a vehi- enough that he or she could not Standards Act (FMVSSA) – to include cle” causing motion.81 Ordinarily, effectively supervise the driving a self-driving operating system.93 So, to operate means “to work or use a enterprise. Without these addi- under the FMVSSA, and regulations machine, apparatus, or the like.”82 tional operative risk factors in a promulgated under it, a driver of a Put together, to attentively operate given case, and should the NHTSA motor vehicle can be human or the a vehicle means to exercise care develop standards and regulations car’s operating system.94 and attention while engaging the unequivocally approving advanced If Oklahoma is inclined to prop- functionality of a vehicle, which self-driving car systems as being erly regulate self-driving cars, it can results in motion. Reckless driv- safe and usable on American roads, follow the NHTSA’s lead. Oklahoma ing, in contrast, is the negligent very complex federal/state law can, similarly, expand its definition operation of a car that evidences a pre-emption issues might arise.89 of “driver” or “operator” in Title 47 disregard for the safety of others.83 to include other forms of inanimate All this confirms that the over- The Need for Regulation for things beyond corporations (and the riding concern with both offenses a Driverless Future – like), so as to embrace a self-driving is the safe operation of a given The Law As It Should Be car’s computer system, as the vehicle.84 If, in fact, safe operation Recently, the NHTSA published NHTSA has done. If that were done, of a vehicle is indeed the primary a much-awaited guidance on lawmakers could choose to subject concern, then the NHTSA’s studies self-driving cars in which it admon- to safe-driving cars to the same on self-driving cars are telling: ished states to 1) pass legislation obligations in the Highway Code that having examined the available addressing the current scope of are imposed on humans.95 That would data, the NTHSA has previ- self-driving cars and 2) to remain eradicate most of the uncertainties ously concluded that self-driving vigilant as to developments, updates identified in this paper. car operating systems are safer or advances in the self-driving options than a human driver.85 car industry and amend state law CONCLUSION Indeed, self-driving cars are accordingly.90 To the states, the guid- Oklahoma should heed the expected to be safer and to reduce ance provides as follows: NHTSA’s call and pass legisla- many accidents (that are caused by tion governing self-driving cars. human error), leading to greater States should review their vehicle Comprehensive legislative action road user safety all round.86 codes, applicable traffic laws, can remove most of the uncer- Against this background, it is and similar items to determine tainty posed by self-driving cars difficult to envision that operat- if there are unnecessary regula- and provide much needed clarity ing/or driving a vehicle, while tory barriers that would prevent to all road users. The Legislature having engaged an NHTSA the testing and deployment of could start by formally authoriz- compliant self-driving feature, [autonomous vehicles] on public ing NHTSA compliant self-driving supervised in close proximity by roads. For example, some States cars and providing additional an able, licensed and capacitated require a human operator to have regulatory safeguards, including driver is anything but inattentive one hand on the steering wheel at but not limited to, license endorse- or reckless driving. As noted, both all times – a law that would pose ments, minimum insurance cov- those offenses require a driver/ a barrier to Level 3 through Level erage and mandatory compliance operator engage in conduct that 5 [autonomous vehicles].91 with traffic rules to ensure the safe endangers him or herself or oth- operation of self-driving vehicles ers.87 Yet, the NHTSA’s evidence The NHTSA has taken the lead in the state. and studies cut the other way – revising its own understanding of its

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 41 ABOUT THE AUTHORS 22. See, e.g., Okla. Stat. Tit. 47 §§1-101, et seq. 57. See OUJI-CR 6-32 Reckless Driving (citing 23. Okla. Stat. Tit. 47 §1-186. Lamb v. State, 1940 OK CR 113, 105 P.2d 799). Spencer C. Pittman is an attorney 24. Id. §1-134(A)(1) (emphasis added). 58. NHTSA, Automated Driving Systems 2.0: with Winters & King Inc. in Tulsa. 25. See generally Okla. Stat. Tit. 47, ch. 1. A Vision for Safety 4, available at www.nhtsa.gov/ 26. Parker v. State, 1967 OK CR 7, ¶12, 424 sites/nhtsa.dot.gov/files/documents/13069a- His primary focuses are business P.2d 997, 1000; see also Okla. Stat. Tit. 47 §1-101. ads2.0_090617_v9a_tag.pdf (last seen Feb. 5, 2019). litigation/transactions and 27. Oxford Advanced American 59. Id. Dictionary, “Self–combining form,” www. 60. Id. personal injury. He completed his oxfordlearnersdictionaries.com/definition/american_ 61. Id. undergraduate at OU in 2010 and english/self_2 (last seen Feb. 5, 2019). 62. Id. 28. Dictionary.com, “Propel,” www.dictionary. 63. Id. obtained his law degree from the com/browse/propelled (last seen Feb. 5, 2019). 64. See, e.g., Okla. Stat. Tit. 47 §§11-605-6 TU College of Law in 2013. 29. See Okla. Stat. Tit. 47 §1-134(A)(1). (hand signals); 11-905 (driver’s license), 12-401(A) 30. See id. §1-134(B)(4). (horn); 12-403 (mirrors); 12-404 (B-D) (windshield Mbilike Mwafulirwa is an 31. Id. §1-114(a). view, etc.); 12-417(A)(1-2) (seat belt). attorney at Brewster & DeAngelis 32. Okla. Stat. Tit. 47 §1-144. 65. See Okla. Stat. Tit. 47 §§1-114(a), §1-140. 33. Id. §1-140. A caveat is in order here: we 66. Id. §1-144. PLLC. His practice focuses on have excluded portions of the definition relating to 67. McCullick v. State, 1984 OK CR 68, 7, 682 complex litigation, civil rights those who exercise control or steer a vehicle that P.2d 235, 236. and appellate law. He is a 2012 is being towed because that portion of the statute 68. See generally id. is beyond the scope of this article. 69. See generally Okla. Stat. Tit. 47 §1-144. graduate of the TU College of Law. 34. Id. 70. Burwell v. Hobby Lobby Stores, Inc., 134 35. The Free Dictionary, “drive,” www. S.Ct. 2751, 2768 (2014). thefreedictionary.com/drive (last seen Feb. 5, 2019). 71. See Okla. Stat. Tit. 47 §§§1-134(A)(1), ENDNOTES 36. The Random House Dictionary of the English §1-134 (B)(4). 1. Victor Li, “The Dangers of Digital Things: Language 1357 (2d ed. Unabridged 1987). 72. See text accompanying note 64, compare Self-driving Cars Steer Proposed Laws on Robotics and 37. See 61 Am. Jur. Proof of Facts 3d 115 (citing Okla. Stat. Tit. 47 §1-186 (no human required). Automation,” abajournal.com (March 18, 2018), www. Kwasnoski, John B., Stephen, John, & Partridge, Gerald, 73. See Okla. Stat. Tit. 47 §1-140; see also abajournal.com/magazine/article/self_driving_cars_ Officer’s DUI Handbook 1, 2 (Lexis Pub. 1998)). Bearden, 1967 OK CR 133, ¶4, 430 P.2d at 847; legislation_robotics_automation (last seen Feb. 5, 2019). 38. See Bearden v. State, 1967 OK CR 133, Parker, 1967 OK CR 7, ¶16, 461 P.2d at 1000. 2. Spencer C. Pittman, Mbilike M. Mwafulirwa, ¶4, 430 P.2d 844, 847; accord Parker v. State, 74. Supra text accompanying notes 36-38, “Autonomous Vehicles and the Trolley Problem: An 1967 OK CR 7, ¶16, 461 P.2d 997, 1000. 40, and 77. Ethical and Liability Conundrum,” 88 O.B.J. 1719 39. See, e.g., Parker, 1967 OK CR 7, 424 P.2d 75. Grant v. Knepper, 156 N.E. 650, 652 (N.Y. 1927). (Sept. 9, 2017). 997; Bearden, 1967 OK CR 133, 430 P.2d 844; 76. See Okla. Stat. Tit. 47 §11-902. 3. See generally id. Crane v. State, 1969 OK CR 267, 461 P.2d 986; 77. Wofford, 1987 OK CR 148, ¶¶2,4, 739 P.2d 4. Nathaniel Meyersohn, Matt McFarland, Hughes v. State, 1975 OK CR 83, 535 P.2d 1023; at 543-544. “Uber’s Self-driving Car has Killed Someone. Mason v. State, 1979 OK CR 132, 603 P.2d 1146. 78. Hughes, 1975 OK CR 83, ¶8, 535 P.2d at What happened?,” cnn.com, money.cnn.com/ 40. Parker, 1967 OK CR 7, ¶16, 424 P.2d at 1000. 1024-1025. 2018/03/20/news/companies/self-driving-uber- 41. Wofford v. State, 1987 OK CR 148, ¶¶2,4, 79. See Okla. Stat. Tit. 47 §11-902; see generally death/index.html (last seen Feb. 5, 2019). 739 P.2d 543, 543-544. Parker, 1967 OK CR 7, ¶16, 461 P.2d at 1000. 5. See Pittman & Mwafulirwa, supra note 2. 42. Hughes, 1975 OK CR 83, ¶8, 535 P.2d at 80. Supra text accompanying note 50. 6. Michael Reilly, “Pay Attention! Tesla’s Autopilot 1024-1025. 81. Supra text accompanying note 35; see also Will Lock Out Lackadaisical Drivers,” MIT Tech. Rev. 43. Id. (emphasis added). Bearden, 1967 OK CR 133, ¶4, 430 P.2d at 847; (Aug. 29, 2016), www.technologyreview.com/s/602264/ 44. Bearden, 1967 OK CR 133, ¶4, 430 P.2d at 847. Parker, 1967 OK CR 7, ¶16, 461 P.2d at 1000. pay-attention-teslas-autopilot-will-lock-out- 45. See Okla. Stat. Tit. 47 §11-901b (“The operator of 82. Supra text accompanying note 36. lackadaisical-drivers/ (last seen Feb. 5, 2019). every vehicle, while driving, shall devote their full time and 83. Supra text accompanying notes 53-57. 7. Jamie Condliffe, “Nissan ProPilot Joins a attention to such driving”); Okla. Stat. Tit. 47 §11-504 (“[E] 84. Supra text accompanying notes 45 and 53; Bumpy Road for Autonomous Driving Aids,” MIT very driver of a vehicle shall exercise due care to avoid Okla. Stat. Tit. 47 §11-901 & 901b; see also Kane Tech. Rev. (July 13, 2016), www.technologyreview. colliding with any pedestrian upon any roadway and shall v. State, 1996 OK CR 14, ¶15, 915 P.2d 932, 937 com/s/601896/nissan-propilot-tesla-autopilot- give warning by sounding the horn when necessary and (Oklahoma regulates driving to promote public safety). fatality-investigation/ (last seen Feb. 5, 2019). shall exercise proper precaution upon observing any 85. See, e.g., NHTSA, Federal Automated Vehicles 8. Gautham Nagesh, “Eye-Tracking Technology child or any confused or incapacitated person upon a Policy: Accelerating the Next Revolution in Roadway for Cars Promises to Keep Drivers Alert,” Wall Street roadway.”); accord Tulsa City Ordinances, Tit. 37 §645; Safety at 5 (September 2016), available at, www. Journal (Sept. 9, 2016; 5:30 a.m. ET), www.wsj.com/ Oklahoma City Mun. Code Tit. 37 §32-10 (same). transportation.gov/sites/dot.gov/files/docs/AV% articles/gms-driver-assist-technology-promises-to- 46. See, e.g., Okla. Stat. Tit. 47 §11-901b. 20policy%20guidance%20PDF.pdf (last seen Feb. 5, 2019). nag-1473413432 (last seen Feb. 5, 2019). 47. Id. 86. Id. 9. Cadillac, “Introducing Cadillac Super 48. See id. 87. Supra text accompanying notes 45 and Cruise,” Cadillac.com, www.cadillac.com/world- 49. Parker, 1967 OK CR 7, ¶12, 424 P.2d at 53; see also, e.g., Okla. Stat. Tit. 47 §11-901b. of-cadillac/innovation/super-cruise (last seen 1000; see also Okla. Stat. Tit. 47 §1-101. 88. See, e.g., NHTSA, Federal Automated Feb. 5, 2019). 50. Merriam Webster, “Full attention,” www. Vehicles Policy at 5. 10. Xenophon P. Huddy, The Law of merriam-webster.com/dictionary/undivided/full/ 89. 49 U.S.C. §30102(b)(1); see Geir v. Am. Honda Automobiles, Preface v-vii (Mathew Bender 1906). complete%20attention (last seen Feb. 5, 2019). Motor Co., 529 U.S. 861, 869-872 (2000) (state law can be 11. Id. at 13. 51. NHTSA, Understanding the Effects of pre-empted if it obstructs NHTSA standards and rules). 12. Id. Distracted Driving and Developing Strategies to 90. NHTSA, Automated Driving Systems 2:0 at 15. 13. Id. at 48-49. Reduce Resulting Deaths and Injuries: Report to 91. Id. at 21. 14. Id. at 51-52. Congress (DOT HS 812053) 2 (December 2013), 92. See Paul A. Hemmersbaugh, Chief Counsel 15. Id. at 51. available at www.nhtsa.gov/sites/nhtsa.dot.gov/ NHTSA, Letter in Response to Google’s Request for 16. Id. at 51-52. files/812053-understandingeffectsdistracted Interpretation on Self-Driving Cars (Feb. 4, 2016), 17. Bill Loomis, “1900-1930: The years of driving drivingreporttocongress.pdf (last seen Feb. 5, 2019). available at, isearch.nhtsa.gov/files/Google% dangerously,” The Detroit News (April 26, 2015, 52. NHTSA, Driver Distraction: A Review of the 20--%20compiled%20response%20to% 12:00 a.m. ET), www.detroitnews.com/story/news/ Current State-of-Knowledge (DOT HS 810 787), 3 2012%20Nov%20%2015%20interp% local/michigan-history/2015/04/26/auto-traffic- (April 2008), available at www.nhtsa.gov/sites/nhtsa. 20request%20--%204%20Feb%2016%20final.htm history-detroit/26312107/ (last seen Feb. 5, 2019). dot.gov/files/810787_0.pdf (last seen Feb. 5, 2019). (last seen Feb 5, 2019). 18. Id. 53. Okla. Stat. Tit. 47 §11-901(A). 93. Id. Under established administrative law 19. Id. 54. Chappell v. State, 1969 OK CR 305, ¶2, principles, that interpretation, if reasonable, is 20. See generally id. 462 P.2d 325, 326. worthy of judicial deference. See Auer v. Robbins, 21. Don Gammill “Trip back in time reveals history of 55. Freeman v. State, 1940 OK CR 44, 101 P.2d 519 U.S. 452, 461 (1997). state’s driver’s licenses, laws,” NewsOK, (Nov. 6, 2006), 653, 663 (citations omitted). 94. Supra text accompanying notes 89 and 91. newsok.com/article/2967304 (last seen Feb. 5, 2019). 56. Id. 95. See Pittman & Mwafulirwa, supra note 2, at 1723.

42 | MARCH 2019 THE OKLAHOMA BAR JOURNAL

Legislative News Reading Day Recap, Day at the Capitol March 12 By Angela Ailles Bahm

IRST AND FOREMOST, a In addition to the bill presenters, conclusion. They were delighted at Freminder that Day at the Capitol Administrator of the Courts Jari the opportunity and very thankful is Tuesday, March 12. We invite Askins presented an all too brief for the information. Again, they everyone to attend. The activities will review of how the judiciary is urged lawyers’ assistance and par- follow the usual format. Registration funded. Unfortunately, we were ticipation in the process. will begin at approximately 9:30 a.m. running late and her very perti- I will look forward to seeing with presentations starting at 10 a.m. nent topic was cut all too short. you at Day at the Capitol on March Lunch will be served at noon; and Thank you again to Ms. Askins. 12! Don’t forget about the free thereafter, everyone will be invited to Finally, we had a legislative service on the legislative website visit their legislator, or any legislator panel to discuss what they antic- at oklegislature.gov that allows you for that matter. We will have several ipate the session will include. My to look up and track bills. And, you speakers including Chief Justice thanks to Sen. Michael Brooks can easily find your legislator for Noma Gurich, Attorney General Jimenez (Oklahoma City), Sen. the purpose of contacting them. Mike Hunter and Administrator Brent Howard (Altus), Rep. Collin Here is the list of bills that were of the Courts Jari Askins. Walke (Edmond) and Rep. Mike addressed during Reading Day. On Feb. 2, the Legislative Osborn (Edmond). The panel was I tried to be as brief as possible Monitoring Committee hosted the introduced and moderated by OBA with this extensive list but at the annual Reading Day. We had an Legislative Liaison Clay Taylor. The same time give an idea of what the excellent turnout; approximately 86 overwhelming message delivered bill addresses. As always if you lawyers attended. With this arti- by these members of the Legislature have any suggestions on how to cle you will find a list of the bills was that they want your input. Rep. improve the Legislative Monitoring that were identified by each of the Walke passionately talked about a Committee, please let me know. speakers. Again, I cannot thank the bill he introduced last year. Then speakers enough for their time and at the conclusion of the session, he BILLS PRESENTED ON devotion to this project. As you can received a number of phone calls READING DAY see by the list, there were a lot of advising him (all too late) of all the bills to review and discuss. Because problems with the bill. Family Law of the number of freshman legisla- They also issued an urgent plea Presented by Molly Sullivan tors and a new governor, there was to any member of the bar consid- HB 2235 Title 28 Recording in fact a huge number of bills. ering a run for the Legislature to marriage certificates; elimi- Thank you again to Molly contact them. MORE LAWYERS nates “opposite sex” language Sullivan, Ed Blau, Judge Janice ARE NEEDED! The Senate this HB 1276 Title 43 Child custody; Loyd, Richard Mildren, Matt Wade, year has only four lawyer mem- provides court shall provide Kaylee Davis Maddy, Haley Drusen, bers, and the House has 10. equal shared parenting time Rhonda McLean, Miles Pringle and We also invited all members of the HB 2013 Title 25 New law cre- Sen. Michael Brooks Jimenez. You Legislature. I was delighted that we ates Persons with Disabilities all did an outstanding job present- had about five nonlawyer members Right to Parent Act ing the material, especially given attend. I was able to personally HB 2616 Title 43 Creates child the 10-minute limitation! speak with some of them at the support guidelines review committee

44 | MARCH 2019 THE OKLAHOMA BAR JOURNAL Attendees of Legislative Reading Day enjoyed spirited and informational presentations. HB 2270 Title 10 Relates to uni- Criminal Law Estate Planning/Banking/ form parentage act and lim- Presented by Ed Blau General Business itations of paternity actions Title 22, unless otherwise noted: Presented by Judge Janice Loyd HB 1272 Title 10A Changes rea- HB 1001 Removes weapons HB 2383 Title 15 Discretion of sonable suspicion to “prob- prohibition for felons as AG and DA to use funds able cause” to take child in passenger in vehicle recovered under the CPA custody without court order HB 1019 Oklahoma criminal SB 123 Title 46 Extends time HB 1274 Title 10A Defines and discovery code – access to to 6 months mortgagor can addresses situational neglect discovery cure default HB 2329 Title 10A Pertains to HB 1030 Title 37A New law; SB 838 Title 18 New law pertaining reporting of child abuse or alcoholic beverages; allows to limited liability companies neglect certain felons to possess an SB 69 Title 18 Includes appraisal HB 2604 Title 10A Pertains to employee’s license rights relating to limited perpetrator registry HB 1037 Pertains to bail reform liability companies HB 2189 Title 12 New law allows HB 1145 Pertains to expungements SB 847 Title 18 New law for alternative methods HB 2019 New law broadens pertaining to corporations of providing testimony judicial discretion for preg- and shareholders in criminal cases nant women or caregivers SB 105 Title 18 Includes appraisers HB 2091 Title 22 Increases num- HB 2589 Amends sentencing pro- in the Professional Entity Act ber of members on Domestic cedures after guilty verdicts SB 737 Title 18 Similar to above Violence Fatality Review Board SB 276 Creates mechanism for SB 204 Title 18 Includes a “nat- retroactivity of SQ 780 ural person” as a “charitable Speaker also listed by reference SB 282 Title 26 New law; voting organization” HB 1061, SB 833, HB 1022, HB 1222, rights of individuals with SB 102 Title 40 Increases mini- SB 742 and SB 300. felony convictions mum wage to $10.50 SB 983 Amend; drug courts; SB 788 Title 40 Pertains to min- those eligible imum wage and provides gradual increase up to $10 per hour

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 45 Government Law SB 350 Title 75 New law; Red HB 2413 Title 47 Increases Presented by Richard Mildren Tape Repealer Act minimum coverage to $50,000 JR = Joint Resolution SB 501 Title 43A New law; Dept. HB 2416 Title 47 Provides proof JR 1019 Change to Constitution; of Mental Health create notice of insurance to be filed with creating Independent on substance abuse services insurance department Redistricting Commission SB 688 Title 74 New law SB 300 Limits production of JR 1020 Change to Constitution creating Entrepreneurs-in- documents to 30 regarding legislative term limits Residence Program as part SB 120 Title 47 Requires traffic HB 1131 Title 40 Shell bill; of Office of Management enforcement vehicles be marked relates to labor, minimum and Enterprise Services SB 533 New law pertaining to wage and benefits SB 736 Title 74 New law creating censorship of social media HB 1391 Title 74 Pertaining to fin- the OK Board of Commerce and private right of action gerprinting and background SB 256 Title 47 Limits towing checks Civil Procedure/Courts and storage fees under cer- HB 1430 Title 74 New law pro- Presented by Matthew Wade tain circumstances viding for preconditions for Title 12, unless otherwise noted: HB 1332 Title 47 Allows ATVs to writing and consideration of HB 1092 Provides for collection be driven on certain munici- joint resolutions or bill of attorney’s fees in small pal and county roadways HB 1536 New law; shell bill; claims cases Congressional and Legislative HB 2409 Pertains to 3009.1 (paid v. Environmental/Natural Resources Districts Act of 2019 incurred); amounts billed Presented by Kaylee Davis-Maddy HB 1921 Title 62 New law; and amounts paid is admis- SB 354 Title 52 New law creat- Oklahomans Virtually sible if an expert testifies the ing the Frack Sand Mining Everywhere Act billed amount was reasonable Advisory Group SB 179 Title 62 Provides for train- for necessary medical care SB 353 Title 15 New law ing employees as financial SB 779 Pertains to 3009.1 Eliminates addressing “design profes- managers need to obtain provider’s sworn sional services agreement” SB 198 Title 74 New law; guide- testimony in addition to SB 542 Title 29 New law relat- lines for social media evidence of payment ing to Wildlife Conservation

Lawyer and nonlawyer legislators who attended this year’s Legislative Reading Day pose after the event.

46 | MARCH 2019 THE OKLAHOMA BAR JOURNAL HB 2120 Relates to standards of Marijuana Law accreditation Presented by Miles Pringle and HB 2214 Prohibits strikes/ Sen. Michael Brooks-Jimenez shutdowns Title 63, unless otherwise noted: HB 2370 Teacher Due Process HB 1100 Modifies certain Act; adds teachers with prohibited acts; relates emergency certificates to Uniform Controlled SB 15 Pertains to Charter Dangerous Substances Act; School sponsorship also HB 2309 and SB 421 SB 60 New law pertaining SB 213 Modifies SQ 788; physi- to superintendents, salary, cians who may sign applica- fringe benefits tion must be licensed and in SB 239 Requires teachers to good standing with medical remain employed while cer- licensure board and board of Legislative Monitoring Committee Chair tain proceedings are pending osteopathic examiners Angela Ailles Bahm and President SB 441 Pertains to length of SB 305 Pertains to discrimina- Chuck Chesnut after the event. school year tion against medical mari- SB 698 Title 61 Public Facilities juana license holders Code, requiring education Act; eliminate certain criteria SB 307 Relates to tax on retail program medical marijuana sales SB 702 Title 27A New law requir- Indian/Real Estate Law SB 325 Relates to discrimination ing DEQ and Oklahoma Presented by Rhonda McLean against marijuana license holder Water Resources Board to HB 1916 Title 60 New law pro- and counties to hold certain elec- share information in certain hibiting transfers of certain tions pertaining to restrictions circumstances items of tangible personal SB 755 New law pertaining to HB 1204 Title 82 Directs certain property to public trust advertising instream water studies be HB 1220 Title 16 False affidavit SB 756 Relates to packaging conducted shall result in award of costs and providing restrictions HB 1403 Title 82 New law per- and attorneys fees and requirements taining to “treasured stream” HB 1222 Title 16 Provides for SB 759 Provides for limitations to HB 2474 Title 82 Disclosure effective conveyances by physicians and prohibitions and website of applica- married grantors for taking certain actions tions to Oklahoma Water HB 1223 Title 16 Pertains to SB 763 Pertains to allowing physi- Resources Board claims and purchases of cians to set certain limits SB 568 Title 82 Creates phase 2 mineral interests SB 765 Title 21 Relates to pro- Arbuckle-Simpson Hydrology HB 1231 Title 60 Pertains to for- hibitions on smoking and Study Revolving Fund profit entities transferring adding marijuana HB 1824 Shell bill; new law cre- tangible personal property SB 898 Pertains to dispensaries ating Oklahoma Waters and to a public trust checking certain information Water Rights Modernization HB 2121 Title 60 Provides for at point of sale Act of 2019 notice relating to Uniform SB 882 New law directs Bureau of HB 1610 Shell bill; new law creat- Unclaimed Property Act Narcotics to develop and imple- ing Environment and Natural HB 2209 Title 60 Requires ment program for disposal Resources Modernization Act certain owners association to of medical marijuana waste publish financial statements SB 532 Title 12 Relates to foreclosure Schools SB 915 Title 16 Relates to remote of medical marijuana businesses Presented by Haley A. Drusen online notarial acts Title 70, unless otherwise noted: Also provided an update to HB 1065 Modifies definition of the Stigler Act amendments Ms. Ailles Bahm is the managing threatening behavior in the lawsuit, Carpenter v. attorney of State Farm’s in-house HB 1946 Prohibits specific Murphy office and serves as the Legislative existing organization from Monitoring Committee chairperson. continuing to represent She can be contacted through employees Communities or angela.ailles-bahm. [email protected].

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 47 Solo & Small Firm Conference New Laws, New Tools – 2019 Conference Coming June 20-22 By Jim Calloway

48 | MARCH 2019 THE OKLAHOMA BAR JOURNAL T WILL SOON BE SUMMERTIME 365 can do. The best bargain in Iwhen, according to composer legal technology is getting the George Gershwin, “the livin’ is most use of the tools you already SPONSORS easy,” but for Oklahoma lawyers, own. Microsoft Teams is a nice summertime means it is time project management tool that can Co-Producer for the OBA Solo & Small Firm be included in your Office 365 Oklahoma Attorneys Mutual Conference, which will be held subscription and Yammer is a Insurance Company June 20-22 at the River Spirit Casino collaboration tool that allows for Resort in Tulsa. “New Laws, New quick instant message-type com- Silver Tools” is the theme of this year’s munications within a firm of any 3000 Insurance Group conference, held in conjunction size. Kenton S. Brice, director of OBA Estate Planning, Probate with the Young Lawyers Division technology innovation for the OU and Trust Section Midyear Meeting. College of Law, will teach us about OBA Family Law Section the hidden tools of Office 365 and OBA General Practice/Solo CONFERENCE TOPICS will also provide a deep dive into and Small Firm Section AND SPEAKERS Microsoft Word. OBA Law Office Management Many have asked for hands-on and Technology Section New Laws training opportunities, so we Professional Reporters Among the most-discussed new will provide some training time. laws are Oklahoma’s cannabis law Kenton Brice will team with Donna changes, so we will have an update Brown of Beyond Square One, a Bronze on the latest developments on that long-time supporter of our confer- Beyond Square One front from Miles Pringle. We will ence, to provide hands-on training CosmoLex also welcome Robert Spector who on Office 365 and Microsoft Word. Law Pay will present his ever-popular “Recent We will have some laptops avail- OBA Disability Law Section Developments in Family Law” to able, but if you bring your laptop Oklahoma City University keep you up to date on changes in and your Office 365 login creden- School of Law the law in that area. He will also do tials, you will be able to keep any a presentation on property division, customizations you make. Polston Tax Resolution & Accounting joint tenancy and the increase in Purview Life value of separate property. Automated Document Assembly Smith.ai Virtual Receptionists Another new tool is Oklahoma Spotlight Branding Hands-On Office 365 Training Bar Intellidrafts, our new automated Tabs3 Software Office 365 is a tool many law- legal document assembly tool. TU College of Law yers are using today, but many We will have presentations from are unaware of everything Office Gabe Bass, creator of Intellidrafts,

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 49 Practice Management Advisor Julie Bays will cover consumer law practice in Oklahoma and also join me for an update on limited scope legal services, David T. McKenzie will cover “Voir Dire and Cross- Examination – The Art of Weaving a Coherent Defense,” “Drug Courts: A Smart Approach to Ensuring Justice for All” will be led by Cleveland County District Judge Michael D. Tupper as well as other educational offerings. Consult the conference schedule for all our programming.

DON’T MISS OUT! In addition to great educational programs, we have some fun social on how to use this powerful tool profession and this program will events planned this year including and the importance of automated share tips for coping with the chal- our opening Black and White Party document assembly for solo and lenges we all face. We have a great Thursday evening and the General small firm lawyers. Automated doc- panel of experts and a short, but Practice/Solo and Small Firm ument assembly for routine matters, impactful, video will be screened. Section Pool Party Friday afternoon. combined with fixed-fee pricing, Our ethics presentation this year Get the details and register now will be important for the success of will feature OBA General Counsel at www.okbar.org/solo. The OBA many small firms in the future. Gina Hendryx, Gary Rife and me Solo & Small Firm Conference is with an audience participation inter- always a fun event with nationally Text Message Client Communication active ethics discussion. Attendees known presenters, unique educa- and Virtual Resources will have an opportunity for anon- tional offerings and a chance to While text messaging is no ymous voting via mobile phone on win door prizes. It is a great value longer a new tool, lawyers often different ethics scenarios. for your CLE dollar. have challenges dealing with it for client communication. We wel- Trials and Tribulations come back Chelsey Lambert, the Judge Jane Wiseman of the Mr. Calloway is OBA Management technology guru behind Lex Tech Oklahoma Court of Civil Appeals Assistance Program director and staff Review, to join me for a program will enlighten us and entertain us liaison to the Solo and Small Firm on everything you need to know as our Saturday luncheon speaker Conference Planning Committee, about text messaging for client with her program “Trials and chaired by Charles R. Hogshead. communication and potential new Tribulations.” client communication. You will learn about some interesting tex- Taxes, Estate Planning, ting tools and techniques. Chelsey Consumer Law, Voir will also do a presentation cover- Dire and More ing “How to Scale Your Practice Other great with Virtual Resources.” This is a programs include subject of increasing importance Rachel Pappy’s to solo and small firm lawyers. “Taxes – Strategies for Improving the Lawyer Wellness and Ethics Bottom Line for You “The Personal Challenges of a and Your Clients,” Lawyer’s Life” is a featured plenary OBA President- presentation that will examine law- Elect Susan Shields yer wellness and stress. We all are will share estate aware of the impact of stress on our planning tips, OBA

50 | MARCH 2019 THE OKLAHOMA BAR JOURNAL RER RT ANO REORT TULA June 20 - 22 N L N T T O M B

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THE OKLAHOMA BAR JOURNAL MARCH 2019 | 51 STANDARD RATES FOR OBA MEMBERS J

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CANCELLAION POLIC REISRAION EC. OEL RESERVAIONS R LE J R T O B A J No refun after une 12. M

52 | MARCH 2019 THE OKLAHOMA BAR JOURNAL 2019 Solo & Small Firm Conference Schedule

THURSDAY | JUNE 20 3 – 6:30 p.m. Conference Registration 6:30 p.m. Black and White Party FRIDAY | JUNE 21 7–9 a.m. Breakfast 8:25–8:35 a.m. Welcome OBA President Charles W. Chesnut 8:35–9:35 a.m. 60 Tips in 60 Minutes Chelsey Lambert, Kenton Brice and Jim Calloway 9:35–9:45 a.m. Break 9:45–10:45 a.m. Office 365 – What Every Lawyer Taxes – Strategies for Improving the Estate Planning Tips Should Know Bottom Line for You and Your Clients Susan Shields Kenton Brice Rachel Pappy 10:45–10:55 a.m. Break 10:55–noon The Personal Challenges of a Lawyer’s Life – Includes partial screening of the documentary Killing Pain Reggie Whitten, O. Clifton Gooding, Jeanie Snider, Peggy Stockwell and Deanna Harris

Noon–1 p.m. Lunch 1–2 p.m. Automating Document Creation with Tenant Rights Law – Defending Recent Developments in Family Law Oklahoma Bar Intellidrafts Eviction Cases Robert Spector Gabe Bass Eric Hallett 2–2:10 p.m. Break 2:10–3 p.m. Drug Courts: A Smart Approach to Text Messaging for Lawyers Cannabis Laws in Oklahoma Ensuring Justice for All Chelsey Lambert and Jim Calloway Miles Pringle Michael D. Tupper 3:30–6:30 p.m. General Practice/Solo & Small Firm Section Pool Party 6:30 p.m. Dinner SATURDAY | JUNE 22 7–9 a.m. Breakfast 8:25–8:30 a.m. Welcome OBA Executive Director John Morris Williams 8:30–9:30 a.m. An Interactive Session on Legal Ethics Gina Hendryx, Gary Rife and Jim Calloway 9:30–9:40 a.m. Break 9:40–10:30 a.m. A Deep Dive Into Microsoft Word Defense of a Grievance Property Division, Joint Tenancy and the Kenton Brice Gary Rife Increase in Value of Separate Property Robert Spector

10:30–10:55 a.m. Break

10:55–11:55 a.m. Current Issues in Bankruptcy Law Limited Scope Legal Services Voir Dire and Cross-Examination – Brian Huckabee Jim Calloway and Julie Bays The Art of Weaving a Coherent Defense David T. McKenzie 11:55 a.m. – Lunch 12:45 p.m. Trials and Tribulations Judge Jane Wiseman 12:45 –1:35 p.m. Automating Document Creation with How to Scale Your Practice with Consumer Law Practice in Oklahoma Oklahoma Bar Intellidrafts (encore of Virtual Resources Julie Bays Friday session) Chelsey Lambert Gabe Bass 1:35–1:40 p.m. Break 1:40–2:30 p.m. What’s Hot and What’s Not in Law Office Management and Technology Kenton Brice, Chelsey Lambert, Jim Calloway, Julie Bays and Charles Hogshead

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 53

Bar News Professional Responsibility Commission Annual Report As Compiled by the Office of the General Counsel of the Oklahoma Bar Association Jan. 1, 2018 – Dec. 31, 2018 | SCBD 6744

INTRODUCTION called to its attention, or upon its own motion, and Pursuant to the provisions of Rule 14.1, Rules takes such action as deemed appropriate to effectuate Governing Disciplinary Proceedings (RGDP), 5 O.S. the purposes of the Rules Governing Disciplinary 2011, ch. 1, app. 1-A, the following is the Annual Proceedings. Under the supervision of the Professional Report of grievances and complaints received and Responsibility Commission, the Office of the General processed for 2018 by the Professional Responsibility Counsel investigates all matters involving alleged Commission and the Office of the General Counsel of misconduct or incapacity of any attorney called to the the Oklahoma Bar Association. attention of the General Counsel by grievance or other- wise, and reports to the Professional Responsibility THE PROFESSIONAL Commission the results of investigations conducted by RESPONSIBILITY COMMISSION the General Counsel. The Professional Responsibility The Commission is composed of seven persons – five Commission then determines the disposition of griev- attorney and two non-lawyer members. The attorney ances or directs the instituting of a formal complaint members are nominated for rotating three-year terms by for alleged misconduct or personal incapacity of an the President of the Association subject to the approval attorney. The attorneys in the Office of the General of the Board of Governors. The two non-lawyer members Counsel prosecute all proceedings under the Rules are appointed by the Speaker of the Oklahoma House Governing Disciplinary Proceedings, supervise the of Representatives and the President Pro Tempore of investigative process, and represent the Oklahoma Bar the Oklahoma Senate, respectively. Terms expire on Association at all reinstatement proceedings. December 31st at the conclusion of the three-year term. Attorney members serving on the Professional VOLUME OF GRIEVANCES Responsibility Commission during 2018 were R. Richard During 2018, the Office of the General Counsel Sitzman, Oklahoma City; David Swank, Norman; received 242 formal grievances involving 176 attorneys Heather Burrage, Durant; Phillip J. Tucker, Edmond; and 917 informal grievances involving 713 attorneys. In and Sidney K. Swinson, Tulsa. The Non-Lawyer mem- total, 1,159 grievances were received against 889 attor- ber was John Thompson, Oklahoma City. One Non- neys. The total number of attorneys differs because Lawyer position was vacant during 2018. R. Richard some attorneys received both formal and informal Sitzman served as Chairperson. Commission members grievances. In addition, the Office handled 213 items of serve without compensation but are reimbursed for general correspondence, which is mail not considered actual travel expenses. to be a grievance against an attorney.1 On January 1, 2018, 141 formal grievances were RESPONSIBILITIES carried over from the previous year. During 2018, 242 The Professional Responsibility Commission new formal grievances were opened for investigation. considers and investigates any alleged ground for The carryover accounted for a total caseload of 383 discipline, or alleged incapacity, of any attorney formal investigations pending throughout 2018. Of

56 | MARCH 2019 THE OKLAHOMA BAR JOURNAL those grievances, 236 investigations were completed DISCIPLINE IMPOSED BY THE PROFESSIONAL by the Office of the General Counsel and presented for RESPONSIBILITY COMMISSION review to the Professional Responsibility Commission. Formal Charges. During 2018, the Commission voted Therefore, 147 investigations were pending on the filing of formal disciplinary charges against 14 attorneys December 31, 2018. involving 23 grievances. In addition, the Commission also The time required for investigating and concluding oversaw the investigation of 11 Rule 7, RGDP matters filed each grievance varies depending on the seriousness with the Chief Justice of the Oklahoma Supreme Court. and complexity of the allegations and the availabil- Private Reprimands. Pursuant to Rule 5.3(c), RGDP, ity of witnesses and documents. The Professional the Professional Responsibility Commission has the Responsibility Commission requires the Office of authority to impose private reprimands, with the con- the General Counsel to report monthly on all infor- sent of the attorney, in matters of less serious miscon- mal and formal grievances received and all investi- duct or if mitigating factors reduce the sanction to be gations completed and ready for disposition by the imposed. During 2018, the Commission issued private Commission. In addition, the Commission receives reprimands to 20 attorneys involving 30 grievances. a monthly statistical report on the pending case- load. The Board of Governors is advised statistically each month of the actions taken by the Professional Responsibility Commission.

Letters of Admonition. During 2018, the Commission issued letters of admonition to 36 attor- neys involving 44 grievances cautioning that the conduct of the attorney was dangerously close to a violation of a disciplinary rule which the Commission believed warranted a warning rather than discipline.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 57 Number of 2018 Diversion Program Curriculum Lawyers

Law Office Management Training 13

Communication and Client Relationship Skills 18

Professionalism in the Practice of Law 6

Professional Responsibility / Ethics School 20

Client Trust Account School 15

Law Office Consultations 9

Lawyers Helping Lawyers Referral 4

Dismissals. The Commission dismissed five SURVEY OF GRIEVANCES grievances due to the loss of jurisdiction after the resigna- In order to better inform the Oklahoma Supreme tion pending disciplinary proceedings or disbarment of Court, the bar, and the public of the nature of the the respondent attorney. Furthermore, the Commission grievances received, the number of attorneys com- dismissed 19 grievances upon successful completion of a plained against, and the areas of attorney misconduct diversion program by the attorney. The remainder were involved, the following information is presented. dismissed where the investigation did not substantiate Total membership of the Oklahoma Bar Association as the allegations by clear and convincing evidence. of December 31, 2018, was 18,033 attorneys. The total num- Diversion Program. The Commission may also ber of members included 11,986 males and 6,047 females. refer respondent attorneys to the Discipline Diversion Formal and informal grievances were submitted Program where remedial measures are taken to against 889 attorneys. Therefore, approximately five ensure that any deficiency in the representation of a percent of the attorneys licensed to practice law in client is not repeated in the future. During 2018, the Oklahoma received a grievance in 2018. Commission referred 46 attorneys to the Diversion A breakdown of the type of attorney misconduct Program for conduct involving 67 grievances. alleged in the 242 formal grievances opened by the The Discipline Diversion Program is tailored to the Office of the General Counsel in 2018 is as follows: individual circumstances of the participating attorney and the misconduct alleged. Oversight of the program is by the OBA Ethics Counsel with the OBA Management Assistance Program Director involved in programming. Program options include: Trust Account School, Professional Responsibility/Ethics School, Law Office Management Training, Communication and Client Relationship Skills, Professionalism in the Practice of Law, and referral to the Lawyers Helping Lawyers program. In 2018, instruc- tional courses were taught by OBA Ethics Counsel Joe Balkenbush, OBA General Counsel Gina L. Hendryx, OBA First Assistant General Counsel Loraine Dillinder Farabow, OBA Assistant General Counsel Katherine M. Ogden, OBA Management Assistance Program Director Jim Calloway, and OBA Practice Management Advisor Darla Jackson. As a result of the Trust Account Overdraft Reporting Notifications, the Office of the General Counsel is now able to monitor when attorneys encounter difficulty with management of their IOLTA accounts. Upon recommendation of the Office of the General Counsel, the Professional Responsibility Commission may place those individuals in a tailored program designed to instruct on basic trust accounting procedures. In 2018, the OBA Management Assistance Program opened its trust account diversion classes to all OBA members.

58 | MARCH 2019 THE OKLAHOMA BAR JOURNAL Of the 242 formal grievances, the area of practice is Disci- Confi- Resignation Type of Dis- Public as follows: plinary dential Pending Disbar- Discipline miss- Cen- Sus- Suspen- Disciplinary ment Imposed als sure pension sion Proceedings

Number of Attorneys 6 2 5 1 6 5 Involved

Age of Attorney

21-29 0 0 1 0 0 0 years old

30-49 3 1 1 0 1 2 years old

50-74 3 1 3 0 4 2 years old

75 or more 0 0 0 1 1 1 years old

DISCIPLINE IMPOSED BY THE OKLAHOMA SUPREME COURT: In 2018, discipline was imposed by the Oklahoma The number of years in practice of the 176 attorneys Supreme Court in 24 disciplinary cases. The sanctions receiving formal grievances is as follows: are as follow:

Disbarment.

Respondent Order Date Kleinsmith, Philip M. 1/17/2018 Knight, David W. 6/19/2018 Kruger, Joel L. 6/19/2018 Gaines, Shanita D. 11/20/2018 Minks, Steven P. 12/3/2018

Resignations Pending Disciplinary Proceedings Approved by Court. The largest number of grievances received were (Tantamount to Disbarment) against attorneys who have been in practice for 26 years or more. The age of attorneys with formal charges filed Respondent Order Date and discipline imposed in 2018 is as follows: Menzer, James L. 6/4/2018 Bedford, Ernie 9/10/2018 Type of Complaint Rule 6, Rule 7, Rule 10, Rule 8, Filed-2018 RGDP RGDP RGDP RGDP Curthoys, Brian A. 9/10/2018 Number of Dalton, John E. 10/29/2018 6 13 1 4 Attorneys Involved Merrill, Stephen J. 12/10/2018 Oliver, J. Edward 12/11/2018 Age of Attorney

21-29 years old 0 1 0 0 30-49 years old 3 5 0 0 50-74 years old 3 6 0 3 75 or more years old 0 1 10 1

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 59 Disciplinary Suspensions. TRUST ACCOUNT OVERDRAFT REPORTING The Office of the General Counsel, under the super-

Respondent Length Order Date vision of the Professional Responsibility Commission, has implemented the Trust Account Overdraft Reporting Brooking, Meagan E. 60 days 1/30/2018 requirements of Rule 1.15(j), Oklahoma Rules of Bounds, John K. 2 years + 1 day 3/6/2018 Professional Conduct, 5 O.S. 2011, ch. 1, app. 3-A (ORPC). Barrett, Colin R. 6 months 9/11/2018 Trust Account Overdraft Reporting Agreements are Smalley, Richard E. 6 months 12/11/2018 submitted by depository institutions. In 2018, 71 notices of overdraft of a client trust account were received by Dunivan, John D. 1 year 12/18/2018 the Office of the General Counsel. Notification triggers Rule 10 Confidential Indefinite 9/10/2018 a general inquiry to the attorney requesting an explana- tion and supporting bank documents for the deficient Public Censure. account. Based upon the response, an investigation may be commenced. Repeated overdrafts due to negli- Respondent Order Date gent accounting practices may result in referral to the Black, Shawnnessy M. 10/30/2018 Discipline Diversion Program for instruction in proper Smalley, Richard E. 12/11/2018 trust accounting procedures.

Dismissals.

Respondent Order Date Tom, Paul R. 1/16/2018 (Dismissed due to death of Respondent) Straily, Kristen D. 3/26/2018 (Misdemeanor Conviction; Rule 7, RGDP) Ruding, Jill N. 5/7/2018 (Misdemeanor Conviction; Rule 7, RGDP) Hooper, Michael R. 5/14/2018 (Reciprocal Discipline; Rule 7, RGDP) Andrews, Joe S. 5/29/2018 (Misdemeanor Conviction; Rule 7, RGDP) UNAUTHORIZED PRACTICE OF LAW Bryant, G. David Rule 5.1(b), RGDP, authorizes the Office of the General 6/11/2018 Misdemeanor Conviction; Rule 7, RGDP) Counsel to investigate allegations of the unauthorized practice of law (UPL) by non-attorneys, suspended attor- There were 16 discipline cases filed with the Supreme neys and disbarred attorneys. Rule 5.5, ORPC, regulates Court as of January 1, 2018. During 2018, 24 new formal the unauthorized practice of law by attorneys and prohib- complaints were filed for a total of 40 cases pending its attorneys from assisting others in doing so. with the Supreme Court during 2018. On December Requests for Investigation. In 2018, the Office of 31, 2018, 16 cases remain filed and pending before the the General Counsel received 24 complaints for inves- Oklahoma Supreme Court. tigation of the unauthorized practice of law. The Office of the General Counsel fielded many additional inqui- REINSTATEMENTS ries regarding the unauthorized practice of law that There were six petitions fo2r reinstatement pend- are not reflected in this summary. ing before the Professional Responsibility Tribunal and three petitions for reinstatement pending with the Practice Areas. Allegations of the unauthorized Supreme Court as of January 1, 2018. There were eight practice of law encompass various areas of law. In pre- new petitions for reinstatement filed in 2018. In 2018, the vious years, most unauthorized practice of law com- Supreme Court granted seven reinstatements, denied plaints involved non-lawyers or paralegals handling two reinstatements, and three were withdrawn by the divorce matters but that trend had declined over the Petitioner. On December 31, 2018, there were three peti- last few years. However, in 2018, a significant number tions for reinstatement pending before the Professional of UPL complaints again involved family law matters. Responsibility Tribunal and two petitions for reinstate- ment pending before the Oklahoma Supreme Court.

60 | MARCH 2019 THE OKLAHOMA BAR JOURNAL For purposes of this summary, the category “paralegal” refers to an individual who advertises as a paralegal and performs various legal tasks for their customers, including legal document preparation. Enforcement. In 2018, of the 24 cases opened, the Office of the General Counsel took formal action in four matters. Formal action includes issuing cease and desist letters, initiating formal investigations through the attorney discipline process, referring a case to an appropriate state and/or federal enforce- ment agency, or filing the appropriate district court action. Thirteen cases were closed for no finding of the unauthorized practice of law. The remainder of the cases continue under investigation.

Referral Sources. Requests for investigations of CLIENTS’ SECURITY FUND the unauthorized practice of law stem from multiple The Clients’ Security Fund was established in 1965 sources. In 2018, the Office of the General Counsel by Court Rules of the Oklahoma Supreme Court. The received the most complaints from attorneys. Fund is administered by the Clients’ Security Fund Committee which is comprised of 17 members, 14 attor- ney members and 3 non-lawyers, who are appointed in staggered three-year terms by the OBA President with approval from the Board of Governors. In 2018, the Committee was chaired by attorney member Micheal Salem, Norman. Chairman Salem has served as Chair for the Clients’ Security Fund Committee since 2006. The Fund furnishes a means of reimbursement to cli- ents for financial losses occasioned by dishonest acts of attorneys. It is also intended to protect the reputation of attorneys in general from the consequences of dishon- est acts of a very few. The Board of Governors budgets and appropriates $175,000.00 each year to the Clients’ Security Fund for payment of approved claims. In years when the approved amount exceeds the amount available, the amount approved for each claim- Respondents. For 2018, most requests for investi- ant will be reduced in proportion on a prorata basis gation into allegations of the unauthorized practice of until the total amount paid for all claims in that year is law related to paralegals. $175,000.00. The Office of the General Counsel reviews, investigates, and presents the claims to the committee. In 2018, the Office of the General Counsel presented 41

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 61 new claims to the Committee. The Committee filed a Supplemental Application for Emergency Orders approved 7 claims, denied 32 claims, and continued and to Transfer and/or Reassign Case to Judge Davis. 5 claims into the following year for further investiga- The OBA filed a Motion to Dismiss. After argument, the tion. In 2018, the Clients’ Security Fund paid a total of court dismissed Bednar’s Motion for Discovery Master $120,350.41 on 7 approved claims. and for an injunction against employees of the OBA. Bednar filed or caused to be filed two Applications to CIVIL ACTIONS (NON-DISCIPLINE) Intervene in Support of a Motion for Special Master. INVOLVING THE OBA The OBA responded to said applications and filed a The Office of the General Counsel represented the supplemental motion to dismiss. After argument, the Oklahoma Bar Association in several civil (non-discipline) applications were denied and the motions to dismiss matters during 2018. One case carried forward into were granted. Thereafter, Bednar filed a First Amended 2018. The following is a summary of all 2018 civil actions Petition and other motions. The OBA again responded against or involving the Oklahoma Bar Association: to Bednar’s filings and filed another Motion to Dismiss. Alexander Bednar v. Farabow, Willis, Blasier and In the interim, Bednar unsuccessfully attempted to have Oklahoma Bar Association, Oklahoma County Case Judge Hesse recuse. Bednar then filed a Motion to Set No. CJ-2017-1192. Bednar filed suit against the OBA Aside the Order Denying Recusal to which the OBA Defendants on February 28, 2017, alleging, among other responded. This case was then transferred to Oklahoma things, that Defendants exhibited a pattern of harass- County and back to Canadian County. At this time, the ment and attacks against him and requested the district OBA Defendants’ Motion to Dismiss is pending and is court declare that his prior attorney discipline was not set to be heard on February 1, 2019, by Judge Hesse. based on ethical violations and enjoin the OBA from Vance-1 Properties, LLC. v. Energy Production Services, further investigating his actions. Bednar also filed a LLC., Oklahoma County Case No. CJ-2017-4737. On June 25, Motion for Special Master to Investigate, Motion to 2018, “Plaintiff, Compulsory Cross Claimant” Kris Quash Administrative Subpoenas and for Protective Agrawal filed a Petition for Damages in Fraud by Chris Order, Motion to Seal Confidential Information and Holland and Lawyers Upon Courts to Steal Money of a Supplemental Petition. The OBA moved to dismiss a Non-Judgment Debtor-Energy Production Services, the matter and, after argument, an Order of Dismissal LLC. Agrawal requested that “Nominal Defendant with Prejudice was entered by Judge Dixon and filed Oklahoma Bar Association” make rules to “punish August 4, 2017. Bednar filed a Motion to Set Aside Lawyers who abuse Court Procedures, who are thieves, for Good Cause on September 5, 2017. After the OBA and enforce the current Rules of Professional Conduct.” response and argument, the Court allowed Bednar to The OBA filed a Motion to Dismiss based on lack of sub- supplement his filing with a transcript from the motion ject matter jurisdiction. On September 6, 2018, the court to dismiss hearing. At the hearing on January 19, 2018, granted the OBA’s Motion to Dismiss with Prejudice. Judge Davis reconsidered Judge Dixon’s order and dis- Vance - Properties, LLC, v. Energy Production Services, missed Bednar’s suit without prejudice to refiling. At the LLC., v. Kris K. Agrawal v. Daniel Delluomo, Chris Holland, hearing, Bednar indicated he filed another lawsuit that et al., and Oklahoma County Court Clerk, Michael T. Bridwell, morning against Defendants (see below). Thereafter, Jerry Parent, Sunoco Partners Marketing and Terminals, Jerry Bednar filed a Supplemental Petition, Application Kite, and Oklahoma Bar Association, Supreme Court Case for Emergency Orders and other documents. After Nos. 117553, 117554, 117555, 117556, 117557, 117558. On response and argument, Bednar’s motions were over- November 26, 2018, Agrawal initiated six appeals. The ruled, and the case was transferred to another county. Oklahoma Bar Association responded to the Petitions in Alexander Bednar v. Hammond, et al., Oklahoma Error. The cases were consolidated to Case No. 117554. County Case No. CJ-2018-373 (before the Honorable This case is pending. Paul Hesse, Canadian County). Bednar filed suit against OBA Defendants Farabow, Hendryx, Blasier ATTORNEY SUPPORT SERVICES and Willis on January 19, 2018, alleging, among other Out-of-State Attorney Registration. In 2018, the things, that the court must stop Defendants from dis- Office of the General Counsel processed 633 new cussing private bar investigation matters with judges, applications and 488 renewal applications submitted attorney and attorneys and that one OBA defendant by out-of-state attorneys registering to participate in acted outside the scope of employment while inves- a proceeding before an Oklahoma Court or Tribunal. tigating him. Bednar also filed an Application for Out-of-state attorneys appearing pro bono to represent Emergency Orders, Application to Consolidate and/ criminal indigent defendants, or on behalf of per- or Reassign Case to Judge Davis, and an Application sons who otherwise would qualify for representation for Discovery Master. Less than a month later, Bednar under the guidelines of the Legal Services Corporation

62 | MARCH 2019 THE OKLAHOMA BAR JOURNAL due to their incomes, may request a waiver of the The attorneys, investigators, and support staff for application fee from the Oklahoma Bar Association. the General Counsel’s office also attended continu- Certificates of Compliance are issued after confirma- ing education programs in an effort to increase their tion of the application information, the applicant’s own skills and training in attorney discipline. These good standing in his/her licensing jurisdiction and included trainings by the Oklahoma Bar Association payment of applicable fees. All obtained and verified (OBA), National Organization of Bar Counsel (NOBC), information is submitted to the Oklahoma Court or and the Organization of Bar Investigators (OBI). Tribunal as an exhibit to a “Motion to Admit.” RESPECTFULLY SUBMITTED this 31st day of January, 2019, on behalf of the Professional Responsibility Commission and the Office of the General Counsel of the Oklahoma Bar Association.

Gina L. Hendryx, General Counsel Oklahoma Bar Association

ENDNOTES 1. The initial submission of a trust account overdraft notification is classified as general correspondence. The classification may change to an Certificates of Good Standing. In 2018, the Office informal or formal grievance after investigation. of the General Counsel prepared 849 Certificates of 2. Four cases were stayed by the Court and are still considered pending by the Office of the General Counsel: SCBD 6318, Rule 7, RGDP; SCBD 6354, Rule Good Standing/Disciplinary History at the request of 7, RGDP; SCBD 6512, Rule 7, RGDP; and SCBD 6553, Rule 7, RGDP. Oklahoma Bar Association members.

ETHICS AND EDUCATION During 2018, the General Counsel, Assistant General Counsels, and the Professional Responsibility Commission members presented more than 80 hours of continuing legal education programs to county bar associ- ation meetings, attorney practice groups, OBA programs, law school classes, and various legal and civic organi- zations. In these sessions, disciplinary and investigative procedures, case law, and ethical standards within the profession were discussed. These efforts direct attorneys to a better understanding of their ethical requirements, the disciplinary process, and informs the public of the efforts of the Oklahoma Bar Association to regulate the conduct of its members. In addition, the General Counsel was a regular contributor to The Oklahoma Bar Journal.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 63 From the Executive Director Ides of March By John Morris Williams

N THE ROMAN CALENDAR, the beginning of the year as a good Bar Association is tied to the Ithe Ides of a month is the mid- place to begin or end a contract geographical boundaries of the dle of the month. March is one of term. Imagine if someone arbi- nine Supreme Court districts. the four months it is on the 15th. trarily changed New Year’s back Currently, there is a bill in the The other eight months it is on the to March how that would throw Legislature to change from nine 13th. The Ides of March is prob- things off a bit. Terms of public distinct geographical districts ably most famous for its use in office might have to be changed. to five geographical districts Shakespeare’s famous play, Julius Football season? Accounting year? mirroring the U.S. congressional Caesar. Only two years before In any event, we think of March districts and four at-large districts. Caesar’s death he changed the as the beginning of spring, college Should the current districts be beginning of the new year from basketball plays off (Final Four) changed, then the Rules Creating March 15 to January. Thus, we are and, of course, the cursed Ides. and Controlling the Oklahoma Bar warned of the Ides of March and Not as a time to start a new year Association would become a bit celebrate the new year in January or to settle debts. That’s all for nonsensical if there were only five without apprehension. January when it is too cold to do geographical districts and four This is one bit of trivia about anything else except watch foot- at-large Supreme Court districts. how some change long ago still ball and basketball. In Caesar’s Currently, the OBA has no position affects our lives to this day. time, before he changed the date, on this matter, and the Oklahoma Imagine the Rose Bowl Parade March 15th was a day of celebra- Constitution provides that the in March. Never! We build our tion. History tells us the Romans Legislature can change the dis- culture and our rituals around could do some celebrating, even tricts. I suspect we would adjust events that many of us have no idea at the cost of a few Christians and accordingly; however, it would of how they came about. I suspect lions. But, I digress. take a lot more time and energy than many might suspect. This is but one of the many things in this legislative session that can affect the OBA, your practice or your clients. OBA OBA Day at the Capitol is a good way to stay Day at the Capitol is a good way to stay current on pending current on pending legislation. legislation. Since lawyers are in the business of law, it is good to know what changes are on the horizon. This is not a day of advocacy, but members are free that most have no idea that the The real point here is that to express their opinions to law- Ides of March was also a day to change of one thing can have makers on their own. The real settle debts. Since it had been the significant effect on others. We goal of the day is to establish beginning of the year, that seemed live in a world where so many relationships with legislators so logical. As lawyers we can cer- things are connected. For example, they know we are available to tainly understand the concept of the governance of the Oklahoma help if we can be of service. The

64 | MARCH 2019 THE OKLAHOMA BAR JOURNAL OBA does not advocate on social have a great line up of speakers, issues, public spending issues or lunch and time to connect with anything that is not within the legislators. It’s a very safe day – it’s very narrow confines of those three days before the Ides! things that have an impact on the administration of justice. Through the years we have been the subject of criticism other- wise. I was there. I have been there for the last 16 sessions, and we have always been very nar- row in our legislative activities. To contact Executive Director Come join us this year for Day Williams, email him at johnw@ at the Capitol on March 12. We will okbar.org. OBA Day at the Capitol Agenda

Time Topic/Event Speaker/Location Oklahoma Bar Center, Emerson Hall, 9:30 a.m. Registration 1901 N. Lincoln Blvd. John Morris Williams, OBA Executive Director 10:00 a.m. Introduction and Welcome Charles Chesnut, OBA President This Session from the Perspective Mike Hunter, 10:05 a.m. of the Attorney General Attorney General Chief Justice Noma Gurich, 10:30 a.m. Bills of Interest to the Judiciary Oklahoma Supreme Court 10:50 a.m. Break Jari Askins, 11:00 a.m. Funding of the Judiciary Administrator of the Courts Mark Burget, Discussion of the Governor’s 11:30 a.m. General Counsel, Agenda and Supporting Bills Office of Gov. J. Kevin Stitt 11:55 a.m. Information and Questions John Morris Williams Glenn Coffee, Lunch and Former President Pro Tempore 12:00 p.m. How to Talk to Legislators Randy Grau, Former Representative District 81 1 – 3 p.m Visit with Legislators Oklahoma State Capitol

THE OKLAHOMA BAR JOURNAL Law Practice Tips Two-Factor Authentication is Critical Today By Jim Calloway

ECHNOLOGY TOOLS for by Russell Gilmore on the access the victim’s Outlook Tlawyers is a regular topic in International Legal Technology account. Now they sit and wait, this Law Practice Tips column. Association (ILTA) blog titled “Two- monitoring all activity in the Any advice columnist knows Factor Authentication: A Resolution account. That’s right; they mon- the readers will often treat their That Works.”1 (If you have never itor ALL email being received column like a buffet, taking what heard of ILTA, it is probably because and sent. They also search all they like and ignoring some items its members tend to work for very emails for words like deposit, that may be good for them, but large law firms and other organiza- wire transfer, or account infor- don’t strike their fancy today. tions, but I can assure the group has mation. Then they wait. Password managers are like serious credibility.) They wait for the victim that. Most people who read about Gilmore notes he has investi- to send an email with wiring password managers appreciate that gated several wire fraud transac- instructions. Once this occurs, the using them would be a good thing, tions over the past year relating to criminal manipulates the Outlook but it takes quite an investment of unauthorized access to Office365 account so the criminal intercepts time to select and set up the pass- Outlook Webmail accounts. the email. Finally, the criminal word manager and then reset the He outlines the typical scenario: sends a new email with new, passwords for all the services and fraudulent, wiring instructions. sites you frequent. Like the kale It starts when the victim flakes or quinoa on the buffet, one receives a simple email with Having some criminal monitor- may recognize the benefit, but it an attachment. The attachment ing and searching all your emails may not strike your fancy that day. will be an invoice, a legal docu- should be a chilling thought for Two-factor authentication is rel- ment, or a letter from a distant anyone, but especially for a lawyer. atively quick and easy to set up – but relative. Because it appears to This shouldn’t be thought of it adds a few seconds to the time it come from a trusted source, the as a particular Office 365 weak- takes to log into the services and victim opens the email. To open ness. We are going to be doing sites you use. the attachment, usually a Word lots of education on Office 365 Using two-factor authentication document, the victim will be this year at the OBA Solo & Small is such a critical tool to protect instructed to click on a link and Firm Conference. Lawyers will be yourself and others, so understand- enter their Microsoft OneDrive using this for its many benefits. ing how it works is an important user ID and password. This is just a different version of part of lawyer technological com- This phishing email tricks the a phishing scam, empowered by petency. Not only should you be victim into providing their login the fact that new Office 365 users using it, but you should be advising credentials to a criminal enter- are getting used to seeing Office your clients and others you care prise. This criminal enterprise may 365 login screens, while most of us about to be using it as well. sell the credential or use them to have learned about other types of The widespread adoption of Office access the victim’s account. common phishing schemes. 365 makes this even more important. Once the criminal has the Compromising your email Our inspiration today comes login credentials, they log into account also allows the criminal to from a blog post earlier this year the Office 365 account and use your email address to attack

66 | MARCH 2019 THE OKLAHOMA BAR JOURNAL your family, friends and clients. receive the code to complete the Mr. Calloway is OBA Management Gilmore adds, “What is often login to your account. You win. Assistance Program director. Need overlooked is that the phishing Certainly, this is one more thing to a quick answer to a tech problem email you receive most likely will do and adds a few seconds to every or help solving a management come from the legitimate account login, so maybe you are not willing to dilemma? Contact him at 405-416- of a coworker, contractor, business do this for every account you use. 7008, 800-522-8060, jimc@okbar. associate, friend, or family member I have a retirement account that org. It’s a free member benefit! whose email account was compro- has online access. I do not access it mised. Therefore, you received the frequently enough for two-factor ENDNOTE phishing email from someone you authentication to be a bother. Yet 1. www.iltanet.org/blogs/russell-gilmore/ currently work with or know, not a every time I log in, it helpfully sug- 2019/02/01/two-factor-authentication-a-resolution- that-works. stranger. So these phishing attempts gests that I can tell the account to are often not blocked by email pro- trust this computer, which would tection systems and software.” bypass two-factor authentication. All of this can be prevented by Every time I tell it “No.” If you have activating two-factor authentica- not set up two-factor authentica- tion on the account. tion on your retirement account, The most common way people your stock brokerage account or use two-factor authentication is your checking accounts, I would receiving a code on their phone via strongly suggest you do it today. text message after logging into an For your Office 365 account account. You must enter the code or any other account that holds to log into the account. So as long confidential client information, the as the criminal doesn’t have access same rule would apply. Right? to your mobile phone, they cannot Right?

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 67

Bar Foundation News OBF Celebrates at First 2019 Meeting

HE OKLAHOMA BAR Each year at the first board TFoundation celebrated three meeting, the passing of the gavel highpoints at its first 2019 Board from the former board president of Trustees meeting. to the incoming board president Since inception in 1946, the OBF’s takes place, signifying a change goal has been to provide and perform in leadership. The OBF sincerely law-related charitable services and thanks Past President Alan Souter good works throughout the state. In for his outstanding service as 2018 2018, the OBF surpassed $15 million president and warmly welcomes in grants awarded to fund law-related Jennifer Castillo, who is serving as nonprofits, court improvements and the new 2019 president. scholarships to Oklahoma law stu- The year 2019 started on a high dents. In 2019, the Board of Trustees note for the OBF, with the news of celebrates this great milestone and a cy pres award of $250,000 from the foresight of its founders. residual funds in a class action Past President Alan Souter passes the gavel to President Jennifer Castillo. settlement in Cimarron County. As with pre- into the OBF Court Grant Fund and vious cy pres awards is earmarked for future awards received by the OBF, this to improve the administration of money was deposited justice in Oklahoma courts.

OBF board members celebrate with attorneys who worked on the Cimarron County case and ensured these funds were awarded to the OBF Court Grant Fund. Front row from left Terry Stowers, Robert Barnes and Doug Burns. Special thanks to these attorneys and to Judge Ronald L. Kincannon and James Kee, who are not pictured.

Right: The OBF Board of Trustees celebrates $15 million in grant funding to law-related nonprofits, court improvements and law school scholarships.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 69 Fellows Scholarship Recipient

What are your short-term and long-term goals? I will clerk for Judge Claire V. Eagan in the Northern District of Oklahoma for one year and then will clerk for Judge Jacques L. Wiener in the 5th Circuit for one year. Eventually, I would like to practice criminal law and Native American law. Personally, I look forward to starting a family with my fiancé and trying out a new city in New Orleans. I also hope to run a marathon soon.

What made you decide to attend law school? My dad is an attorney. He has always been an inspiration to me and so becoming an attorney has always been a thought I’ve had. I worked in oil and gas after undergrad, and when the industry took a downturn, I thought it was a good time to go back to school. I have also been interested in criminal justice since before law school.

Clint Summers Are there any laws or social rules that completely baffle you? The federal criminal jurisdiction Indian status test Hometown: Dallas, Texas What historical figure inspires you and why? Law School: University of Tulsa The Apostle Paul, because although he was the most talented intel- lectual of his time, he lived in poverty and gave up all that he had Graduation 2019 for what he believed in. Date: What is the most important thing you have learned in law school What field of Federal courts, or undergrad? law are you constitutional law, In law school, I learned that the learning never stops. studying: federal Indian law, criminal law, administrative law Undergraduate: University of Oklahoma Undergrad Finance and interna- Major: tional business with an Arabic minor

Graduation 2010 Date:

70 | MARCH 2019 THE OKLAHOMA BAR JOURNAL Fellows Scholarship Recipient Young Lawyers Division YLD Busy With Activities By Brandi Nowakowski

T’S HARD TO BELIEVE it’s March BAR EXAM SURIVIAL KITS plugs, snacks, gum, aspirin, antacids Ialready! Time flies when you’re Additionally, the YLD Board and stress balls. Then, YLD members having fun and hard at work. This is of Directors met Feb. 23 to conduct meet at the bar exam test sites in especially true in the legal profession its regular monthly meeting. More Oklahoma City and Tulsa on the first and for our volunteers in the Young importantly, however, at this meet- day of the exam to hand them out, Lawyers Division. With 2019 in full ing the YLD assembled Bar Exam just as they did on Feb. 26. This is just swing, the YLD has been busy with Survival Kits for the February 2019 one small act of service and kindness many activities and planning for bar exam takers. Over the years, Bar to encourage and support everyone the coming year. In particular, Feb. 2 Exam Survival Kits have become taking the exam. To all of those who was Legislative Reading Day at the a trademark of the YLD. I’m sure sat for the bar – good luck! We look Oklahoma Bar Center. On this day, many of you recall receiving these forward to celebrating with and the OBA reviewed and discussed handy little goody bags before your welcoming all of the new members proposed legislation for the upcoming own bar exam; I know I do. of our association this spring! legislative session. The purpose is to In keeping with tradition, YLD make OBA members aware of poten- members gather together the UPCOMING EVENTS YOU tial changes in the law, especially those Saturday before every Oklahoma bar WON’T WANT TO MISS that could affect the administration of exam to assemble these kits contain- As we quickly move through justice, court practice and procedure. ing items such as pencils, pens, ear the year, I wanted to take a moment to highlight two upcoming events and encourage all young lawyers to participate. The first is OBA Day at the Capitol, which will be March 12. On this day, OBA members meet at the Oklahoma Bar Center to discuss pertinent pending legislation and legislative issues before heading to the Capitol en masse to meet with our representatives, senators and other government leaders. It’s an excellent opportunity to get involved and actively participate on behalf of your bar association and the legal profes- sion. I highly recommend all young lawyers make an effort to attend! The second is the YLD Midyear Meeting held in conjunction with the OBA Solo & Small Firm Conference (SSF) June 20-22. Once again, the event will be hosted at the River Spirit Casino Resort in Tulsa. There are From left Caroline Marie Shaffer, Dylan Erwin, YLD Immediate Past Chair Nathan Richter and 2019 Chair Brandi Nowakowski at the state Capitol to speak to their representatives, several reasons why all lawyers, but senators and other government leaders during 2018 OBA Day at the Capitol. especially young lawyers, should head

72 | MARCH 2019 THE OKLAHOMA BAR JOURNAL out to Tulsa for this event. First, it’s a chance to meet lawyers from across the state and catch up with those you already know but rarely get to see! Lawyers come to SSF from all over, so it’s a great opportunity to expand your network and make friends in the legal field. Second, you can get all of your CLE for the entire year. Yes, you read that right … the entire year! The bar association works hard to not only pro- vide quite a bit of CLE, but to provide education you can and will actually use! The CLE comes in different tracks so you can pick and choose what will be helpful and applicable to you in your particular practice. The best part is, it’s a great deal! See details in this issue of the Oklahoma Bar Journal or to the website at www.okbar.org/solo. Third, SSF is fun! From planned events and hospitality suites, to live music, to just lounging by the pool, a good time is practically guaranteed! You can use it as a great excuse to relax away from the office or bring your spouse and/or children for a quick family getaway. Either way, all young lawyers should mark their calendars now! We would love to see you there!

Ms. Nowakowski practice in Shawnee and serves as the YLD chairperson. She may be contacted at brandi@ stuartclover.com. Keep up with the YLD at www.facebook.com/yld.

The pool and cabana area at River Spirit Casino Resort in Tulsa are one of the many fun activities coming up at the YLD Midyear Meeting.

THE OKLAHOMA BAR JOURNAL For Your Information

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

Sookyung Ahn Kevin Jim Murphy OBA No. 19631 OBA No. 6528 602-55 E. Cordova St. 2405 Meadowbrook Street LHL DISCUSSION GROUP Vancouver, BC Ponca City, OK 74604 HOSTS APRIL MEETING CANADA V6A0A5 “Keeping Things in Perspective: Lisa Anne Nelson Wins vs. Losses” will be the topic of Terry Alvin Baulch OBA No. 17326 the April 4 meeting of the Lawyers OBA No. 16350 2500 W. Ithica St. Helping Lawyers monthly discus- 127 E. 6th Broken Arrow, OK 74012 sion group. Each meeting, always the Ada, OK 74820 first Thursday of the month, is facil- Joan Ann Renegar itated by committee members and a Elaina S. Carpenter OBA No. 7501 licensed mental health professional. OBA No. 20039 The Renegar Bldg. The group meets from 6 to 7:30 p.m. 1403 Cindy 2964 Via Esperanza at the office of Tom Cummings, 701 Frederick, OK 73542 Edmond, OK 73013 N.W. 13th St., Oklahoma City. There is no cost to attend and snacks will Larry Brent Click John Joseph Saye be provided. RSVPs to onelife@ OBA No. 15205 OBA No. 7930 plexisgroupe.com are encouraged 2005 Oaklawn Drive 2827 Galway Ct. to ensure there is food for all. Midland, TX 79705 Idaho Falls, ID 83404

Margaret Luchi Hannan Oran Randall Spindle CONNECT WITH THE OBA OBA No. 32952 OBA No. 14818 THROUGH SOCIAL MEDIA 215 W. McArthur Ave Dr., Apt. 18 6805 N. Libby Ave. Have you checked out the OBA Midwest City, OK 73110-5562 Oklahoma City, OK 73132 Facebook page? It’s a great way to get updates and information Stephanie Anne Hansen Larriet Elaine Thomas about upcoming events and the OBA No. 32415 OBA No. 17534 Oklahoma legal community. Like P.O. Box 190974 6910 Creek Hollow Drive our page at www.facebook.com/ Boise, ID 83719 Dallas, TX 75252 OKBarAssociation and be sure to fol- low @OklahomaBar on Twitter and Gregory Thomas Harris Daniel Marty Webb @OKBarAssociation on Instagram. OBA No. 32200 OBA No. 11003 1008 Eddington Ct. 701 S. Desert Palm Ave. Chesapeake, VA 23322 Broken Arrow, OK 74012 ASPIRING WRITERS TAKE NOTE We want to feature your work Richard A. Kear Constance Lucille Young on “The Back Page.” Submit arti- OBA No. 21920 OBA No. 14537 cles related to the practice of law, 211 Dogwood Ct. Womble Bond Dickinson LLP or send us something humorous, Andover, KS 67002 One Wells Fargo Center transforming or intriguing. Poetry 301 S. College St., Suite 3500 is an option too. Send submis- Tiffany Muree Lacore Charlotte, NC 28202-6037 sions of about 500 words to OBA OBA No. 31616 Communications Director Carol 2608 King George Street Robin Rubrecht Zegen Manning, [email protected]. Beavercreek, OH 45431 OBA No. 15375 4304 Lee Hutson Drive Sachse, TX 75048

74 | MARCH 2019 THE OKLAHOMA BAR JOURNAL Bench and Bar Briefs

ON THE MOVE

Elizabeth Bowersox, Philip R. of Phillips Murrah. Mr. Bradt focuses VP of finance; Rob F. Robertson of Bruce, Danae V. Grace, Sean S. his practice on oil and gas law. Tulsa, VP of growth; and Dale E. Hunt, Richard D. Johnson, Zachary Cottingham of Tulsa, director. A.P. Oubre and Patrick L. Stein Sara Dupree joined the Norman- were elected shareholders at the based firm of Mary Westman Law Clifford Hudson joined Crowe & Oklahoma City office of McAfee & as of counsel. Ms. Dupree will Dunlevy as of counsel in the firm’s Taft. Julia A. Palmer was elected practice equine and general ani- Oklahoma City office where he shareholder in the firm’s Tulsa office. mal law, business and contract law serves as a member of the Corporate & Joe Lewallen Jr. was elected to the and general practice. Securities Practice Group. firm’s Board of Directors in the firm’s Oklahoma City office. Ms. Bowersox John M. Krattiger, Lewis T. LeNaire, Peter L. Scimeca and Ryan J. practices employment law. Mr. Bruce Craig M. Regens, Tina N. Soin and Duffy were elected as sharehold- is a trial lawyer practicing labor Paula M. Williams were promoted ers of Oklahoma City-based firm and employment law. Ms. Grace is a to shareholders of GableGotwals. Mr. Fellers Snider. Mr. Scimeca prac- transactional lawyer handling com- Krattiger and Mr. LeNaire practice tices criminal defense and com- mercial and business matters. Mr. complex commercial litigation in mercial litigation along with state Hunt practices business and com- the firm’s Oklahoma City office. and federal forfeiture. Mr. Duffy mercial law. Mr. Johnson practices Mr. Regens practices bankruptcy practices taxation and business law. transactional and tax law. Mr. Oubre and business litigation in the firm’s practices intellectual property and Oklahoma City office. Ms. Soin prac- Conner & Winters LLP began the year commercial litigation. Ms. Palmer tices transactional law in the firm’s with a new leadership team. Jared D. and Mr. Stein both practice state and Tulsa office. Ms. Williams practices Giddens, from Oklahoma City, serves federal litigation. Mr. Lewallen prac- labor and employment law in the as chairman, J. Ryan Sacra, of Tulsa, tices real estate and business law. firm’s Oklahoma City office. The firm serves as secretary and COO, and has also selected officers and direc- Robert J. Melgaard, also of Tulsa, as Travis Smith joined the Oklahoma tors for 2019. The team consists of CFO. Mark D. Berman and Melodie City-based firm of Holmes, Holmes & John D. Dale of Tulsa, chairman and Freeman-Burney, both of Tulsa, serve Neisent PLLC. Mr. Smith’s prac- CEO; Amy M. Stipe of Oklahoma on the Executive Committee. tice will focus on issues involving City, president; Amy A. Fogleman of Medicaid eligibility, estate plan- Tulsa, VP of talent and development; Drew Edmondson of Oklahoma City ning and special needs trusts. John D. Russell of Tulsa, secre- joined Riggs Abney as of counsel in tary; Jeff D. Hassell of Tulsa, VP of the firm’s Litigation Practice Group. He Zachary K. Bradt of Edmond was marketing and business develop- will provide counsel on administra- promoted to director and shareholder ment; Terry D. Ragsdale of Tulsa, tive law and government relations.

KUDOS

Stanley L. Evans of Norman, The OBA Indian Law Section Miles L. Halcomb of Enid made the Robert H. Henry of Wylie, Texas, honored two law school students Oklahoma Best Sellers List for his and Susan L. Lees of Deerfield, with the G. William Rice Memorial science fiction novel, A Perfect World. Illinois, were honored with the Scholarship. Rhylee Sanford, a The novel was the only piece on the Order of the Owl by the OU College second year at the TU College of list by an independent author. of Law. The honor celebrates alumni Law and Brian Candelaria, a third who demonstrate leadership and year at the OCU School of Law each service through outstanding accom- received $1,500 to defray the costs of plishments in their legal careers. bar examination preparation courses.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 75 In Memoriam

ary Dolores Bedingfield of aniel S. Buford of Tulsa died Insurance Co. He participated in MTulsa died Dec. 19, 2018. She DDec. 22, 2018. He was born Optimist Club activities, coached boys’ was born Sept. 27, 1937, in Renews, May 22, 1937, in Bowlegs. He attended and girls’ elementary school base- Newfoundland. She graduated Oklahoma A&M College. He then ball and softball, as well as American from Memorial University with enrolled at the TU College of Law, Legion senior high school baseball. her bachelor’s and master’s degrees. graduating with a J.D. in 1961. During After being awarded her degrees law school, Mr. Buford worked for Sun obert Hayden Downie of Tulsa in Newfoundland, Ms. Bedingfield Oil Co. as a land man. He served in Rdied Jan. 4. He was born June 28, enrolled in the University of the United States Air Force, receiv- 1941, in Topeka, Kansas. He received California, Los Angeles and earned ing an honorable discharge in 1963. his J.D. from Washburn University. her second master’s degree and While practicing law through the He worked at Texaco and served as ultimately her Ph.D. in 1973. In early ‘80s, he bought the Beacon and assistant district attorney. In 1970, 1983, she graduated from the TU Pythian buildings on South Boulder Mr. Downie served as a municipal college of Law with a J.D. After Ave. in downtown Tulsa. In the late judge in Tulsa’s criminal court. He led retiring from law, Ms. Bedingfield ‘70s and early ‘80s, he owned nursing the creation of Night Court and partic- wrote and published a book based homes and assisted living centers. He ipated in development of the Driving in her beloved Newfoundland. She steadily grew his health care business While Intoxicated School. Following was an avid traveler, gardener, oil interests over the next two decades his service to the public, he practiced painter and stained-glass artist. and began yet another new phase in with Sneed, Lang, Adams, Hamilton, Memorial donations can be made his life in the local banking industry in Downie, & Barnett and Main & to Planned Parenthood. the mid-‘90s. At the time of his death, Downie. Mr. Downie concluded his he was owner and director of Security career by returning to public service egel Branch Jr. of Duncan Bank in Tulsa. In addition to banking, as assistant city attorney for Broken Hdied Jan. 4. He was born he built a luxury hotel and resort in Arrow. He was a member of the Tulsa Dec. 24, 1940, in Duncan. He Sarasota, Florida. He also worked to County Bar Association, serving as earned a Bachelor of Science degree help grow Buford Ranches LLC. president from 1986 to 1987. He served from Tulane University, after which as chairman of the board for Legal Aid he worked as administrator of Plato avid Edward Burja of Oklahoma Services of Eastern Oklahoma in 1982. Manor, then he received his J.D. DCity died Dec. 14, 2018. He was He was passionate about the Memorial from the OU College of Law. Mr. born Oct. 25, 1952, in Bryan, Texas. High School basketball team for which Branch opened a private practice He graduated from OU. He was he served as statistician for 20 years. in Duncan. He was appointed as involved with the Oklahoma City the first special district judge in Police Athletic League as well as the ohn J. Gardner II of Ponca City died Oklahoma’s 5th District in 1969. In Oklahoma City Festival of the Arts. JJan. 13. He was born Oct. 9, 1946, in 1970, he was elected district judge. Ponca city. He graduated from OSU He was appointed as trial authority ack Dabner of Pasadena, California, in 1968 with a Bachelor of Science and served on the Oklahoma Court Jdied Jan. 10. He was born Aug. 9, degree. He received his J.D. from the on the Judiciary. Mr. Branch served 1926, in Falls City, Nebraska. He OU College of Law in 1971. He then as president of Stephens County served as a radar man in the U.S. served in the U.S. Army Signal Corps Bar Association and Duncan Navy, including active wartime duty attaining the rank of 1st lieutenant. Optimist Club. He was a chairman in the Pacific. Following his tour of Mr. Gardener began his career as an of the Bluestem Chapter of Quail duty, he enrolled in Northwestern attorney, practicing with the Northcutt Unlimited and past Southwest dis- University in Evanston, Illinois, and Law Firm in Ponca City. He served trict director of Quails Unlimited of received his B.S. degree in history. Mr. on the Professional Responsibility Oklahoma. He was involved with Dabner then received his J.D. from the Tribunal from 2003 to 2009 and the Boy Scouts of America, serving TU College of Law. His professional on the board of The Opportunity on the board and on the Camp career included work in Tulsa as an Center for many years. He was also George Thomas staff. He enjoyed insurance underwriter at Alexander the longest standing board member camping and being in nature. and Alexander Insurance Co. and as of Bridgeway, serving since 1972. Mr. claims manager at Marsh McLennan Gardener belonged to the Kay County

76 | MARCH 2019 THE OKLAHOMA BAR JOURNAL Bar Association and was a member of rank of lieutenant commander. From prosecutor and defense attorney. He the Elks, Masons and Guthrie Scottish 1970 to 1975, he worked as an assis- had a love of travel and good design. Rite. Memorial contributions may tant district attorney in Comanche be made to Bridgeway Inc., 612 W. County. In 1975, Mr. Jacobs opened a ames William Stevenson of Grand Ave., Ponca City, 74601. private practice, worked as a public JNorman died Jan. 5. He was born defender and in October of that same Dec. 30, 1941, in Ponca City. He was illiam Christopher Jackson of year he began working for the Kay an all-state football player for the WTulsa died Jan. 6. He was born County District Attorney’s Office. Muskogee Roughers and then went July 19, 1939, in Tulsa. He received an He worked there until his retirement on to play for OU under the direction undergraduate degree in engineering in 1995. He enjoyed hunting, golf of Bud Wilkinson. He received his J.D. from OSU, MBA from UCLA and and traveling. Memorial donations from the OU College of Law in 1976. J.D. from the TU College of Law. He may be made to the National Kidney served in the Air National Guard Foundation at 6405 Metcalf Ave. Suite oward L. Wisdom of Sarasota, including two years of active duty. 204, Overland, Kansas, 66202. HFlorida, died Dec. 14, 2018. He Mr. Jackson practiced law in Tulsa and was born Nov. 11, 1940. He served managed the family businesses. He aul John Johanning of Oklahoma in the U.S. Army in the 82nd was committed to public service. For 22 P City died Oct. 23, 2018. He was Airborne. Mr. Wisdom earned a J.D. years, he was a voluntary tax preparer born Aug. 26, 1934, in Manchester. He from the OU College of Law in 1970. through the Volunteer Income Tax graduated from OSU with a degree He loved to travel. He also enjoyed Assistance program. He provided pro in political science. He received a J.D. planes, boats and cars. bono legal assistance to many indi- from the OU College of Law in 1958. viduals. For many years, Mr. Jackson Mr. Johanning was a member of The arl L. Yeary of Oklahoma City was a dedicated volunteer at Mayfest, International Legal Honor Society Cdied Dec. 10, 2018. He was born the Bluegrass and Chili Festival Phi Delta Phi. He practiced law in April 19, 1956, in Oklahoma City. He and the Greenwood Jazz Festival. Oklahoma City for over 60 years. graduated from OU in 1979 with a Memorial donations can be made to the He loved to travel, solve crossword B.A. in psychology. He obtained a J.D. Oklahoma Mothers’ Milk Bank, 901 N. puzzles and to read. He knew how from the OU College of Law in 1987. Lincoln Ave., Suite 330, Oklahoma City, to fix just about anything and loved Mr. Yeary practiced at the Oklahoma 73104, or to the charity of your choice. to discuss politics. To honor Mr. Department of Securities for more Johanning, read a book, donate a than 28 years following his time in ave A. Jacobs of Ponca City book or give someone a book. private practice at Holliman, Langholz, Ddied Jan. 4. He was born Aug. 15, Runnels & Dorwart PC in Tulsa. He 1941, in Pauls Valley. He received two ichard Laquer of Oklahoma City was a survivor of the Oklahoma City undergraduate degrees from OU. He Rdied Jan. 2. He was born Feb. 2, bombing and was instrumental in graduated from the OU College of 1947, in Richmond, Virginia. He grew helping his fellow co-workers out of Law in 1966. Mr. Jacobs joined the U.S. up near the shore in Cape May County, the building and getting aid for them. Navy in 1966. He was assigned to the New Jersey, and attended Swarthmore Memorial donations may be made to USS Forrestal and served in the Bay and Temple Universities. He received Southeast High School, 5401 S. Shields of Tonkin during the Vietnam War. a joint J.D. and MBA from OU in 1977. Blvd., Oklahoma City, 73129, to be He remained in the Navy Reserves Mr. Laquer practiced law in Oklahoma used for food baskets for children until retirement in 1995 obtaining a City for almost 40 years, as both a during holiday breaks.

HOW TO PLACE AN from you. Sections, committees, Submit news items to: ANNOUNCEMENT: and county bar associations The Oklahoma Bar Journal are encouraged to submit short Mackenzie Scheer welcomes short articles or news stories about upcoming or recent Communications Dept. items about OBA members and activities. Honors bestowed by other Oklahoma Bar Association upcoming meetings. If you are an publications (e.g., Super Lawyers, Best 405-416-7084 OBA member and you’ve moved, Lawyers, etc.) will not be accepted as [email protected] become a partner, hired an associate, announcements. (Oklahoma based taken on a partner, received a publications are the exception.) Articles for the May issue must be promotion or an award, or given Information selected for publication received by April 1. a talk or speech with statewide or is printed at no cost, subject to national stature, we’d like to hear editing and printed as space permits.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 77 Oklahoma Bar Journal Editorial Calendar

2019 ISSUES

APRIL SEPTEMBER NOVEMBER Law Day Bar Convention Indian Law Editor: Carol Manning Editor: Carol Manning Editor: Leslie Taylor [email protected] MAY OCTOBER Deadline: Aug. 1, 2019 Technology Appellate Law Editor: C. Scott Jones Editor: Luke Adams DECEMBER [email protected] Starting a Law Practice AUGUST Deadline: May 1, 2019 Editor: Patricia Flanagan Access to Justice [email protected] Editor: Melissa DeLacerda Deadline: Aug. 1, 2019 [email protected] Deadline: May 1, 2019

2020 ISSUES

JAUNARY MAY OCTOBER Meet Your Bar Association Diversity and the Law Mental Health Editor: Carol Manning Editor: Melissa DeLacerda Editor: C. Scott Jones [email protected] [email protected] FEBRUARY Deadline: Jan. 1, 2020 Deadline: May 1, 2020 Family Law Editor: Virginia Henson AUGUST NOVEMBER [email protected] Children and the Law Alternative Dispute Resolution Deadline: Oct. 1, 2019 Editor: Luke Adams Editor: Aaron Bundy [email protected] [email protected] MARCH Deadline: May 1, 2020 Deadline: Aug. 1, 2020 Constitutional Law Editor: Clayton Baker SEPTEMBER DECEMBER [email protected] Bar Convention Ethics & Professional Responsibility Deadline: Oct. 1, 2019 Editor: Carol Manning Editor: Amanda Grant [email protected] APRIL Deadline: Aug. 1, 2020 Law Day Editor: Carol Manning

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

78 | MARCH 2019 THE OKLAHOMA BAR JOURNAL

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THE OKLAHOMA BAR JOURNAL MARCH 2019 | 81 Classified Ads

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OF COUNSEL LEGAL RESOURCES – SINCE 1992 – DO YOU NEED YOUR LITIGATION RESCUED? Exclusive research and writing. Highest quality: trial Seasoned trial attorney, with many successful jury and appellate, state and federal, admitted and practiced trials, court arguments and 1000s of depositions, U.S. Supreme Court. Over 25 published opinions with can handle these matters for you – even at the last numerous reversals on certiorari. MaryGaye LeBoeuf minute. Contact me to get your litigation back on 405-728-9925, [email protected]. track. Licensed in Oklahoma and Texas. 405-850- 5843 or LitigationRescued.gmail.com. INTERESTED IN PURCHASING PRODUCING AND NONPRODUCING MINERALS; ORRi. Please contact Greg OKC ATTORNEY HAS CLIENT INTERESTED IN Winneke, CSW Corporation, P.O. Box 23087, Oklahoma PURCHASING producing or nonproducing, large or City, OK 73123; 210-860-5325; email [email protected]. small, mineral interests. For information, contact Tim Dowd, 211 N. Robinson, Suite 1300, OKC, OK 73102, WANT TO PURCHASE MINERALS AND OTHER 405-232-3722, 405-232-3746 (fax), [email protected]. OIL/GAS INTERESTS. Send details to P.O. Box 13557, Denver, CO 80201. OFFICE SPACE

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TULSA LAW FIRM SEEKING PATENT ATTORNEY. RESEARCH AND WRITING. Legal issues of all kinds. Will train. Experience a plus. Send replies to Oklahoma Trial and appellate briefs. Contact Kyle Persaud 918- Bar Association, “Box O,” P.O. Box 53036, Oklahoma 336-1124. Email: [email protected]. City, OK 73152.

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OKLAHOMA BAR ASSOCIATION HEROES program FAMILY LAW LITIGATION ASSOCIATE. Growing is looking for several volunteer attorneys. The need for Oklahoma City AV rated family law firm is seeking FAMILY LAW ATTORNEYS is critical, but attorneys an associate attorney in family law. Candidate should from all practice areas are needed. All ages, all counties. have experience or acumen in family law or litigation, Gain invaluable experience, or mentor a young attorney, be capable of immediately assisting in the day-to-day while helping someone in need. For more information management of high-conflict divorce and custody or to sign up, contact Margaret Travis, 405-416-7086 or cases and be willing to work directly with assigned [email protected]. practice group. Compensation commensurate with experience. The right candidate will present well and FRANDEN, FARRIS, QUILLIN, GOODNIGHT & carry themselves with confidence. Submissions should ROBERTS, a mid-size, Tulsa AV, primarily defense be made to [email protected]. litigation firm seeks lawyer with 5-10 years of experience with emphasis on litigation. If interested, please send MAKE A DIFFERENCE AS THE ATTORNEY FOR confidential resume, references and writing sample to A MEDICAL/LEGAL PARTNERSHIP OR STAFF [email protected]. ATTORNEY. Are you fervent about equal justice? Legal Aid Services of Oklahoma (LASO) is a nonprofit law ATTORNEY: JENNINGS |TEAGUE, an AV rated firm dedicated to the civil legal needs of low-income downtown OKC litigation firm, whose primary areas persons. If you are passionate about advocating for of practice are insurance defense, products liability and the rights of underserved, LASO is the place for you, transportation defense, has a position available for an offering opportunities to make a difference in the lives attorney with 2+ years’ experience. The job duties will of Oklahomans and to be part of a dedicated team. encompass all phases of litigation including, pleading LASO has 20 law offices across Oklahoma, and LASO and motion practice, research, analysis and discovery. has openings for passionate attorneys in our Muskogee Salary is commensurate with experience. Please send law offices. The medical/legal partnership attorney is an resume to [email protected]. embedded position with Kids Space. It is an opportunity for an attorney to assist opioid-effected kids in their legal challenges. Additionally, there is a staff attorney ESTABLISHED, AV-RATED TULSA INSURANCE position that will assist the Muskogee service area. DEFENSE FIRM WHICH REGULARLY TAKES The successful candidate will provide legal services CASES TO TRIAL seeks motivated associate attorney depending on client needs – a “generalist” position. to perform all aspects of litigation including motion LASO offers a competitive salary and a very generous practice, discovery and trial. Two to 5 years of experience benefits package, including health, dental, life, pension, preferred. Candidate will immediately begin taking liberal paid time off and loan repayment assistance. depositions and serving as second chair at jury trials Additionally, LASO offers a great work environment and and can expect to handle cases as first chair after educational/career opportunities. The online application establishing ability to do so. Great opportunity to gain can be found at legalaidokemployment.wufoo.com/ litigation experience in a firm that delivers consistent, forms/z7x4z5/. Website: www.legalaidok.org. Legal Aid positive results for clients. Submit CV and cover letter is an Equal Opportunity/Affirmative Action Employer. to Oklahoma Bar Association, “Box CC,” P.O. Box 53036, Oklahoma City, OK 73152. EXPERIENCED TULSA TITLE ATTORNEY WANTED. Job description: reading abstracts, issuing title opinions ASSOCIATE ATTORNEY – PARMELE LAW FIRM. and title commitments, reviewing surveys, reviewing Parmele Law Firm is seeking a licensed attorney for closing documents, issuing title insurance policies and administrative law in our Oklahoma City and Tulsa preparing curative documents in the Tulsa market. offices. No experience required. Excellent compensation Salary commensurate with experience. Send resumes to and benefits package. Some day travel required. If you “Box GG,” Oklahoma Bar Association, P.O. Box 53036, are interested in this exciting opportunity, please apply Oklahoma City, OK 73152. at parmelelawfirm.apscareerportal.com/j/0bi3zh. EOE.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 83 POSITIONS AVAILABLE POSITIONS AVAILABLE

APPLICATIONS MUST BE RECEIVED AT DHS BY ASSISTANT CITY ATTORNEY. Salary: $57,601.44- 11:59 PM OF THE CLOSING DATE OF THIS JOB $94,177.82 annually dependent upon qualifications and ANNOUNCEMENT. Apply online at www.jobs.ok.gov. experience. This full-time position will defend and Basic purpose of position: The DHS Child Support prosecute high-profile and complex civil law suits; draft Services – Midwest City CSS Office has an opening legal documents; advise city officials as to legal rights, for a full-time attorney (CSS Attorney IV, $5,044.91 obligations, practices and other phases of applicable monthly) with experience in child support enforcement. local, state and federal law; draft resolutions, ordinances This position will be located at 9901 SE 29th Street, and contracts and prepare legal opinions. See job Midwest City, OK 73130. Typical functions: The position announcement for additional requirements. Applicants involves preparation and filing of pleadings and trial for the position must have graduated from an accredited of cases in child support related hearings in district law school, be a member in good standing in the and administrative courts. Duties will also include Oklahoma Bar Association and admitted to or eligible consultation and negotiation with other attorneys and for immediate admission to practice in the U.S. District customers of Oklahoma Child Support Services, and Court for the Western District of Oklahoma and the interpretation of laws, regulations, opinions of the 10th Circuit Court of Appeals. Applicants must possess court and policy. Position will train and assist staff a valid Oklahoma driver's license. Interested applicants with preparation of legal documents and ensure their should submit an application, resume, law school compliance with ethical considerations. Knowledge, transcript and two samples of legal writing filed in legal skills and abilities (KSA's): Knowledge of legal principles proceedings to the City of Lawton Human Resources and their applications; of legal research methods; of the Department, 212 SW 9th Street, Lawton, OK 73501, 580- scope of Oklahoma statutory law and the provisions 581-3392, Fax 580-581-3530. See job announcement at of the Oklahoma Constitution; of the principles of www.lawtonok.gov/departments/human. administrative and constitutional law; of trial and administrative hearing procedures; and of the rules of SEEKING GENERAL COUNSEL FOR OKLAHOMA evidence; and skill in performing research, analyzing, CITY HOME OFFICE OF BANKERS BANCORP, appraising and applying legal principles, facts and a distinctive financial holding company, and its precedents to legal problems; presenting explanation subsidiaries. Position requires a minimum of 8–10 years’ of legal matters, statements of facts, law and argument experience in banking or general corporate law with a clearly and logically in written and oral form; and in law firm or financial institution. Bank or other regulatory drafting legal instruments and documents. Minimum experience is strongly preferred. Excellent written and qualifications: Preference may be given to candidates oral communication skills (law review editor a plus), with experience in child support and/or family law. solid interpersonal skills and adherence to highest This position may be filled at an alternate hiring level financial and legal ethical standards. Duties include as a Child Support Services attorney III (beginning but are not limited to: vendor and customer contract salary $4,405 monthly), Child Support Services attorney negotiation/preparation/review; loan documentation; II (beginning salary $4,067.91 monthly), or as a Child IP SaaS licensing; consultation on internal employment Support Services attorney I (beginning salary $3,689.25 matters; transactional and regulatory risk analysis and monthly), dependent on child support or family law advice to executive management; and supervision of experience and minimum qualifications as per state outside counsel. Competitive compensation, rich benefits policy. Notes: A conditional offer of employment to package presently including: employer-paid health, final candidate will be contingent upon a favorable dental, vision, life and disability; employer-paid licensure background check and a substance abuse screening. maintenance and MCLE; and 401k profit sharing and Veteran's preference points do not apply to this position. retirement savings plan with employer match. Please If you need assistance in applying for this position submit resume, writing sample and cover letter with contact Oklahoma Department of Human Services, salary expectations in confidence to [email protected]. Talent Acquisitions at 405-521-3613 or email STO.HRM. [email protected]. Benefits: This is a full-time unclassified state position with full state retirement and insurance OKLAHOMA OSTEOPATHIC BOARD, A STATE benefits, including paid health, dental, life and disability AGENCY, SEEKS EXECUTIVE DIRECTOR. Application insurance. Annual leave of 10 hours per month and sick and information available at www.osboe.ok.gov. leave of 10 hours per month begin accruing immediately. Application deadline is March 14, 2019, at 4 p.m.

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CORPORATE PARALEGAL. EXCELLENT PAY AND THE OKLAHOMA TAX COMMISSION, LEGAL DIVISION BENEFITS! W.C. Bradley Co., a 130+ year old international is seeking several attorneys for openings in its OKC office, consumer products company seeks a qualified paralegal Protests/Litigation Section. Applicants must be licensed for its Tulsa, Oklahoma, office to replace a retiring to practice law in Oklahoma. Preference will be given to paralegal who has been with the company for a decade. candidates with administrative hearing and/or litigation Reporting directly to the general counsel, this position experience, but all applicants will be considered. Submit will perform critical legal functions on behalf of its family cover letter, resume and writing sample to applicants@tax. of world class companies who compete in the global ok.gov. The OTC is an equal opportunity employer. marketplace. Requirements include a self-motivated team player with 5+ years’ experience; completion of an ABA- BUSY BUSINESS DEFENSE LAW FIRM LOCATED IN accredited paralegal program is preferred. Candidates EDMOND/NW OKC is accepting resumes for multiple must have strong legal research and writing skills. attorney positions. Offering a competitive salary with Excellent computer, organizational, attention-to-detail, excellent benefits and location. Please send resume, writing project management, written/verbal communication sample and salary requirements to “Box A,” Oklahoma and prioritization skills are musts. The ability to meet Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. deadlines is critical. Candidate should be flexible to work overtime, as needed, and have flexibility to travel. The General Counsel’s Office is a fast-paced environment THE UNITED STATES ATTORNEY’S OFFICE FOR that addresses many areas of the law. Please apply if you THE EASTERN DISTRICT OF OKLAHOMA is seeking have experience in any of the following areas: consumer an experienced, self-motivated attorney to serve as an transactional contracts, corporate governance, merger and assistant United States attorney (AUSA) in our Civil acquisitions, regulatory, intellectual property including Division. The selected applicant will primarily focus on trademarks and patents, risk management, litigation prosecuting affirmative civil enforcement (ACE) cases and international. Experience in any of these areas is in which the United States and its taxpayers are the a plus. Proficiency with Microsoft Word, Outlook, Excel, victims of fraud, waste and abuse. ACE cases often stem PowerPoint, Windows-based software and Westlaw is a from violations of the False Claims Act involving health plus. Your expertise will be rewarded with an attractive care, government contracts and federal benefits. Claims salary/benefits package along with a casual dress code are pursued through the courts and money judgments environment. To apply: https://goo.gl/3TFRMz. No sought against individuals and corporations defrauding phone calls please. The W.C. Bradley Co. is an Affirmative the government. Effective handling of these cases Action and Equal Opportunity Employer. The W.C. requires the AUSA to possess excellent communication Bradley Co. uses E-Verify to confirm the employment and organizational skills and the ability to work closely eligibility of all new team members. To learn more about with federal investigative agencies. The AUSA will lead E-Verify, including your rights and responsibilities, please the investigations and participate in all stages of the visit the U.S. Citizen and Immigration Service at www. resulting litigation, including discovery, depositions and uscis.gov/e-verify. E-Verify® is a registered trademark of court appearances. Candidate must have a J.D. degree, be the U.S. Department of Homeland Security. duly licensed and authorized to practice as an attorney under the laws of any state, territory of the United States, or the District of Columbia, and have at least 3 years trial THE OKLAHOMA TAX COMMISSION is accepting attorney experience. Applicants must be active members applications for the position of general counsel. This in good standing of the bar. Applicants should have position oversees legal services provided by attorneys superior research, writing and oral advocacy abilities, employed by the agency. Applicants must be licensed to strong academic credentials and good judgment. United practice law in Oklahoma. The ideal candidate should States citizenship is required, as is a successful pre- have at least 5 years of relevant experience and strong employment background investigation. Announcement communication skills. Submit cover letter, resume and will open on or about March 8, 2019, and closes on March 22, writing sample to [email protected]. The OTC is an 2019. To view and apply for this vacancy announcement equal opportunity employer. visit http://www.usajobs.gov. The U.S. Department of Justice is an Equal Employment Opportunity Reasonable Accommodation Employer.

THE OKLAHOMA BAR JOURNAL MARCH 2019 | 85 POSITIONS AVAILABLE POSITIONS AVAILABLE

APPLICATIONS MUST BE RECEIVED AT DHS BY ANGELA D. AILLES & ASSOCIATES, in-house counsel 11:59 PM OF THE CLOSING DATE OF THIS JOB for State Farm Insurance Companies, has an opening ANNOUNCEMENT. Apply online at www.jobs.ok.gov. for a paralegal. Candidates must have prior experience Basic purpose of position: The DHS Child Support in personal injury or insurance defense litigation; must Services – North OKC CSS Office has an opening for a be able to work effectively and efficiently in an electronic full-time attorney (CSS Attorney IV, $5,044.91 monthly) environment; and must be highly proficient in Outlook, with experience in child support enforcement. This Word, Adobe and use of the internet as a resource. position will be located at 2409 N. Kelley Ave, Room Candidates should have experience handling cases for 103, OKC, OK 73111. Typical functions: The position multiple attorneys at one time; be knowledgeable with involves preparation and filing of pleadings and trial state rules regarding discovery and pleading practice; of cases in child support related hearings in district have experience collecting and analyzing medical records; and administrative courts. Duties will also include and be capable of legal research, drafting motions and consultation and negotiation with other attorneys and assisting at trial with trial presentation software. State customers of Oklahoma Child Support Services, and Farm offers an excellent salary and benefits package. If interpretation of laws, regulations, opinions of the interested, please go to www.statefarm.com/careers - court and policy. Position will train and assist staff Become a State Farm Employee, search under “req6545”, with preparation of legal documents and ensure their and submit your online application. EOE. compliance with ethical considerations. Knowledge, skills and abilities (KSA's): Knowledge of legal principles and their applications; of legal research methods; of the scope of Oklahoma statutory law and the provisions of the Oklahoma Constitution; of the principles of administrative and constitutional law; of trial and administrative hearing procedures; and of the rules of evidence; and skill in performing research, analyzing, appraising and applying legal principles, facts and precedents to legal problems; presenting explanation of legal matters, statements of facts, law and argument clearly and logically in written and oral form; and in drafting legal instruments and documents. Minimum qualifications: Preference may be given to candidates with experience in child support and/or family law. This position may be filled at an alternate hiring level as a Child Support Services attorney III (beginning salary $4,405 monthly), Child Support Services attorney II (beginning salary $4,067.91 monthly), or as a Child Support Services attorney I (beginning salary $3,689.25 monthly), dependent on child support or family law experience and minimum qualifications as per state policy. Notes: A conditional offer of employment to final candidate will be contingent upon a favorable background check and a substance abuse screening. Veteran's preference points do not apply to this position. If you need assistance in applying for this position contact Oklahoma Department of Human Services, Talent Acquisitions at 405-521-3613 or email STO.HRM. [email protected]. Benefits: This is a full-time unclassified state position with full state retirement and insurance benefits, including paid health, dental, life and disability insurance. Annual leave of 10 hours per month and sick leave of 10 hours per month begin accruing immediately.

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The Back Page The Tao of the Courthouse Shoeshine By R. Steven Haught

S A TRIAL LAWYER for need of a shine. Mr. Vitali persisted, As the shoes became shinier, so A40 years, I have prepared directing his client to climb on the did the client’s disposition. He sat countless witnesses to testify at chair while engaging in friendly up in the chair. He began to smile trials or depositions. Each witness banter with the shoeshine man, a and joke around. is unique, requiring preparation seasoned courthouse veteran who I departed to go to my court- specific to the personality and served as a counselor and court- room, but as I saw Mr. Vitali and skill set of the witness as well as house guide and could tell you what his client walk down the hall with the type of case involved. With verdicts were rendered that week confidence and a sense of purpose, some witnesses, the naturals, I and what kind of mood your judge I realized that I had witnessed a merely engage in a general discus- was in that day. new form of witness preparation – sion of the subject matter of the Reluctantly the client obeyed. the transcendental power of the testimony, while others require As Mr. Vitali and I visited, I courthouse shoeshine. intensive preparation with a mock saw the client’s demeanor begin trial with direct examination and to change. The transformation cross-examination. was gradual at first but then the Mr. Haught practices in Some witnesses need to be vid- improvement was quite dramatic. Oklahoma City. eotaped and coached with regard to gestures and facial expressions. Some witnesses are so nervous that I have taken them to the courthouse to watch other trials or to sit in the witness chair in an empty court- room. I thought I had seen it all, but then I witnessed a new technique employed by veteran Oklahoma City trial lawyer John Vitali. I saw Mr. Vitali with a client at the courthouse. They were in the lobby, and his client looked ner- vous and somewhat despondent. He was well-dressed in a suit and tie with nice shoes. He looked ill at ease. Mr. Vitali was upbeat and chatty, but he noticed his client’s demeanor as well. Suddenly he made a suggestion to his client, “What about a shoesh- ine?” The client declined, pointing to his shoes that were not in particular

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