Century Old Letter Provides Judicial Flashback • OBA Awards • Small Towns — Big Opportunities • Sovereignty Symposium

Volume 85 u No. 14 u May 17, 2014

ALSO INSIDE • Century Old Letter Provides Judicial Flashback • OBA Awards • Small Towns — Big Opportunities • Sovereignty Symposium

1058 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Theme: Diversity in the Law pg. 1104 Editor: January Windrix Real Property Law contents Section Note May 17, 2014 • Vol. 85 • No. 14 Departments 1060 From the President 1071 Editorial Calendar 1128 From the Executive Director 1130 Law Practice Tips 1134 Ethics/Professional Responsibility 1136 Oklahoma Bar Foundation News 1139 OBA Board of Governors Actions 1142 Access to Justice 1144 Young Lawyers Division 1146 Calendar 1148 For Your Information 1151 Bench and Bar Briefs 1153 In Memoriam 1154 What’s Online 1160 The Back Page pg. 1110 Small Town/ Features Big Opportunities 1063 Bi s h o p v. Un i t e d St a t e s and the Future of Same-Sex Marriage in Oklahoma Plus By Conor Cleary 1104 Real Property Law Section: 1069 Diversity Requires More American Marketable Record Title: A Deed Indian Lawyers and Judges Which Conveys Only the Grantor’s By Klint A. Cowan ‘Right, Title and Interest’ Can be a 1073 The Melting Pot Outside Your Office ‘Root of Title’ By Ruth J. Addison and Daniel E. Gomez By Kraettli Q. Epperson 1081 Sexual Orientation: Acceptance 1110 Rural Lawyers Tout Big Possibilities 1982-2014 in Small Towns By Jane Eulberg By Kirby Lee Davis 1087 Lessons from the Field: My Life- 1112 OBA Awards: Call for Nominations Changing Law Practice as an Air 1114 Session Nears End, Many Bills Force JAG Still Active By Katie Illingworth By Duchess Bartmess 1091 Avoiding Disparate Impacts in Background Checks of Potential 1118 Century-Old Letter Provides Employees Judicial Flashback By Jarrod Beckstrom By Ruth Addison 1097 Raising the Bar: The Case for 1120 New Lawyers Take Oath Diversity and Inclusion in the 1122 Sovereignty Symposium Legal Profession 1126 Book Review: On e Mu r d e r Too Ma n y By Hannibal B. Johnson Reviewed by Judge Allen Welch

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1059 FROM THE PRESIDENT

A Proud Member of the Oklahoma Bar By Renée DeMoss

Hicks Epton of Wewoka, Okla. was a proud member of compensation for judges so that those the Oklahoma Bar Association. Oklahoma lawyers recognize Mr. most qualified would be able to devote Epton as the father of Law Day, a day in which bar associations their lives to the work. (See the separate across the country honor and celebrate our legal system. Mr. Epton article in this issue.) established this enduring legacy with the support of the Seminole County Bar Association by annually sponsoring a program ini- Proud Oklahoma lawyers Mr. Epton tially entitled “Know Your Courts — Know Your Liberties” begin- and Justice Hayes sought in their own ning on May 1, 1946. ways to ensure that we would always remember, and vigilantly protect, the With the support of the American Bar Association, President judicial branch that our nation’s found- Dwight D. Eisenhower issued a proclamation in 1958 designating ers thoughtfully and purposefully de- May 1 as Law Day, with these words, “It is fitting that the American signed to function as an equal branch people should remember with pride, and vigilantly guard, the great with the executive and legislative heritage of liberty, justice and equality under the law. It is our moral branches. and civil obligation as free men and as Americans to preserve and strengthen that great heritage.” They also recognized that lawyers are the guardians of a fair, impartial Since Congress enacted legislation in 1962 that permanently desig- and qualified judiciary that enables nated May 1 as Law Day, it has become a national judges to act without day of celebration of our founders’ greatest legacy concern for the day-to- — a republic composed of three separate and …lawyers are the day whims of politics equal branches, with the judicial branch entrusted guardians of a and election-focused pol- with ensuring that all Americans receive justice fair, impartial and iticians. Such a judiciary under the law. is essential to protect our qualified judiciary individual liberties, to How fitting, then, that on April 3, 2014, just one that enables judges uphold our constitution- month before our recent Law Day celebration, Okla- to act without al rights and to pre- homa Supreme Court Chief Justice Tom Colbert vent the tyranny of the received a letter regarding Oklahoma’s legal system concern for the majority. written over 100 years ago by another proud mem- day-to-day whims ber of the Oklahoma bar, pioneer lawyer Samuel W. Like Hicks Epton and Hayes. Sam Hayes was only 32 years old when he of politics and Justice Sam Hayes, I, too, took his seat as the first justice of the Oklahoma election-focused am a proud member of Supreme Court on Nov. 16, politicians. the Oklahoma bar. Over 1907, following President Theo- the past few weeks I have dore Roosevelt’s proclamation witnessed OBA members admitting Oklahoma to the Union. join together to guard against proposed state legislation that would Oklahoma had been a state only a scant six intentionally weaken our judiciary and years when Justice Hayes submitted a letter our bar. dated April 22, 1913, for inclusion in the “Okla- homa Century Chest,” a time capsule buried Since 1967, when the people of Okla- under the basement floor of the Oklahoma City homa turned to the OBA to help install First Lutheran Church until its recent opening. a new judicial selection system to replace one riddled with corruption, In the letter, Justice Hayes, who was at the our system has been praised as one of time grappling with the monumental task of the best in the nation, free of politics creating and implementing a new state court and scandal. OBA members’ defense President DeMoss system, voiced his dream that our brand new of that system, and of the entire Okla- practices in Tulsa. state would ultimately enjoy a legal system that homa judiciary, has been nothing short [email protected] included both a non-partisan system of selecting 918-595-4800 of amazing. The Oklahoma Bar Asso- judges for all of our state courts and adequate ciation is a force to be reckoned with when united in a noble cause.

1060 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 OFFICERS & BOARD OF GOVERNORS Renée DeMoss, President, Tulsa David A. Poarch Jr., President-Elect, Norman Susan S. Shields, Vice-President, Oklahoma City events Calendar James T. Stuart, Immediate Past President, Shawnee Deirdre O’Neil Dexter, Sand Springs Robert D. Gifford II, Oklahoma City MAY 2014 Kimberly Hays, Tulsa Douglas L. Jackson, Enid 19 OBA Litigation Section meeting; 12 p.m.; Oklahoma Bar Center, John W. Kinslow, Lawton Oklahoma City with teleconference; Contact David VanMeter 405-228-4949 Rickey J. Knighton, Norman James R. Marshall, Shawnee Licensed Legal Intern Swearing-In Ceremony; 12:45 p.m.; Judicial Nancy S. Parrott, Oklahoma City Center, Oklahoma City; Contact Wanda Reece 405-416-7000 Kevin T. Sain, Idabel Bret A. Smith, Muskogee 20 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Richard D. Stevens, Norman Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Judge David B. Lewis Linda S. Thomas, Bartlesville 405-556-9611 Kaleb Hennigh, Enid Chairperson, OBA/Young Lawyers Division OBA Communications Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Doerner Saunders Law Office, 3200 S. Boston Ave., BAR Center Staff John Morris Williams, Executive Director; Ste. 500, Tulsa; Contact Dick Pryor 405-740-2944 Gina L. Hendryx, General Counsel; Jim Calloway, 23 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Director of Management Assistance Program; Oklahoma City; Contact John Morris Williams 405-416-7000 Craig D. Combs, Director of Administration; Susan Damron Krug, Director of Educational 26 OBA Closed – Memorial Day observed Programs; Beverly Petry Lewis, Administrator MCLE Commission; Carol A. Manning, Director 27 OBA Women in Law Committee meeting; 12 p.m.; Oklahoma Bar of Communications; Travis Pickens, Ethics Counsel; Center, Oklahoma City and University of Tulsa, Tulsa; Contact Robbin Watson, Director of Information Technology; Allison Thompson 918-295-3604 Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, 28 OBA Work/Life Balance Committee meeting; Debbie Maddox, Katherine Ogden, Steve Sullins, 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Assistant General Counsels; Tommy Butler, Tanner Sarah Schumacher 405-752-5565 Condley, Sharon Orth, William Thames and Krystal Willis, Investigators JUNE 2014 Manni Arzola, Jarrod Houston Beckstrom, Debbie Brink, Emily Buchanan, Susan Carey, 3 OBA Government and Administrative Law Practice Section Nickie Day, Dieadra Florence, Johnny Marie meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Floyd, Matt Gayle, Brandon Haynie, Suzi Contact Scott Boughton 405-717-8957 Hendrix, Misty Hill, Debra Jenkins, Durrel Lattimore, Heidi McComb, Renee Montgomery, 5 OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.; Larry Quinn, Lori Rasmussen, Wanda F. Reece, Office of Tom Cummings, 701 NW 13th St., Oklahoma City; RSVP to Tracy Sanders, Mark Schneidewent, Jan Kim Reber [email protected] Thompson, Laura Willis & Roberta Yarbrough EDITORIAL BOARD OBA Lawyers Helping Lawyers discussion group meeting; Editor in Chief, John Morris Williams; News & 6 p.m.; University of Tulsa College of Law, John Rogers Hall, 3120 E. 4th Pl., Layout Editor, Carol A. Manning; Editor, Rm. 206, Tulsa; RSVP to Kim Reber [email protected] Melissa DeLacerda, Stillwater; Associate Editors: Dietmar K. Caudle, Lawton; Emily Duensing, 6 OBA Professional Responsibility Commission meeting; 9 a.m.; Tulsa; Erin Means, Moore; Shannon Lee Prescott, Oklahoma Bar Center, Oklahoma City; Contact Dieadra Goss 405-416-7063 Okmulgee; Mark Ramsey, Claremore; Judge Megan Simpson, Buffalo; Leslie Taylor, Ada; For more events go to www.okbar.org/calendar Judge Allen J. Welch, Oklahoma City; January Windrix, Poteau The Oklahoma Bar Association’s official website: NOTICE of change of address (which must be www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082014 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association 405-416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free 800-522-8065 FAX 405-416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education 405-416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel 405-416-7055 July. byby thethe OOklahoma BBar AAssociation,, 19011901 N. Lincoln Boulevard, General Counsel 405-416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education 405-416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers 800-364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program 405-416-7008 tions are $60$55 per year except for law students registered with the Mandatory CLE 405-416-7009 Oklahoma Bar Association, who may subscribe for $25. 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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1061 1062 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Diversity in the LAW

Bishop v. United States and the Future of Same-Sex Marriage in Oklahoma By Conor Cleary n Jan. 14, 2014, Judge Terence C. Kern, senior U.S. district judge for the Northern District of Oklahoma, issued his Omuch-anticipated opinion in Bishop v. United States ex rel. Holder, striking down Oklahoma’s constitutional amendment banning same-sex marriage as a violation of the Equal Protection Clause of the U.S. Constitution.1 Judge Kern’s opinion is part and parcel of a rapidly shifting legal landscape on the issue of same- sex marriage. Just over 10 years ago no state allowed same-sex marriage, now 17 states do.2 With a few notable exceptions, these advances have been confined to states on the west and east coasts.3 Judge Kern’s decision, along with those from federal judges in other conservative states,4 means that same-sex marriage could soon be a reality in states not thought of as on the cutting edge of gay rights. This article explores the evolution of same-sex marriage in the United States, explains the basis for Judge Kern’s opinion in Bishop, and discusses what the future holds for same-sex marriage in Oklahoma and beyond.

HISTORICAL BACKGROUND the union of one man and one woman.6 Mean- while, individual states proposed amendments In 2003, the Massachusetts Supreme Court, to their own constitutions. In the lead up to the in Goodridge v. Dep’t of Pub. Health, ruled that 2004 elections, Oklahoma politicians warned the state of Massachusetts could not prohibit that, without a constitutional amendment defin- same-sex couples from marrying.5 The reaction ing marriage as the union between one man and and response to this ruling was dramatic. one woman, a similar result could happen in President George W. Bush, facing a tough re- Oklahoma.7 In addition to Oklahoma, 10 other election contest in 2004 against John Kerry, a states introduced constitutional bans on same- U.S. senator from Massachusetts, the same sex marriage that year. Each of these states voted state that had just become the first to allow overwhelmingly to approve the amendments,8 same-sex marriage, endorsed an amendment with 76 percent of Oklahoma voters approving to the U.S. Constitution defining marriage as the amendment.9

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1063 Oklahoma’s constitutional amendment pro- Court granted cert to determine the constitu- vided the following: tionality of Section 3. On June 26, 2013, the Supreme Court ruled for Windsor, declaring A. Marriage in this state shall consist only Section 3 of DOMA unconstitutional. While the of the union of one man and one woman. result of the court’s ruling was clear (Ms. Neither this Constitution nor any other Windsor received her tax refund), its reasoning provision of law shall be construed to and rationale were less so. This lack of clarity require that marital status or the legal inci- leaves unanswered whether Windsor supports dents thereof be conferred upon unmarried or undercuts the constitutionality of same-sex couples or groups. marriage bans. B. A marriage between persons of the same The confusion concerning Windsor’s impact gender performed in another state shall not stems from the court’s use of two strands of be recognized as valid and binding in this constitutional jurisprudence — federalism and state as of the date of the marriage. equal protection. On the one hand, the court C. Any person knowingly issuing a mar- felt that Section 3 intruded on states’ rights. riage license in violation of this section Historically, marriage has been an institution shall be guilty of a misdemeanor.10 regulated by the states. The court explained that “[t]he recognition of civil marriages is cen- The day after the election, two same-sex tral to state domestic relations law, . . . [and] couples — Mary Bishop and Sharon Baldwin, “[t]he definition of marriage is the foundation and Susan Barton and Gay Phillips — filed suit of the State’s broader authority to regulate the in federal court in Tulsa alleging that the subject of domestic relations with respect to the amendment was unconstitutional. The early protection of offspring, property interests, and years of the case were spent wrangling over 16 11 the enforcement of marital responsibilities.” procedural and jurisdictional questions, but “Against this background” of state regulation, by 2009 the U.S. District Court for the Northern the court concluded, “DOMA rejects the long- District of Oklahoma began to consider the mer- established precept that the incidents, benefits, its of the case. Yet, before the district court issued and obligations of marriage are uniform for all a ruling, the U.S. Supreme Court agreed to hear married couples within each State[.]”17 two cases concerning same-sex marriage, United States v. Windsor and Hollingsworth v. Perry. On the other hand, the court did not confine Because these two cases would affect, if not dic- its holding to a federalism rationale.18 Instead, tate, the outcome in Bishop, the district court the court explained that “[t]he State’s power in delayed its ruling pending their outcome.12 defining the marital relation is of central relevance in this case quite apart from principles of UNITED STATES V. WINDSOR federalism.”19 Explaining how “the State’s deci- Windsor concerned the constitutionality of sion to give this class of persons the right to Section 3 of the Defense of Marriage Act marry conferred upon them a dignity and sta- (DOMA) and whether the federal government tus of immense import,”20 the majority con- may define marriage for purposes of federal cluded that the “injury and indignity” result- law as exclusively the union of two individuals ing from Section 3 of DOMA was “a depriva- of the opposite sex.13 tion of an essential part of the liberty protected by the Fifth Amendment.”21 In the majority’s Edith Windsor and Thea Spyer married in eyes, Section 3 violated the Equal Protection Canada in 2007. In 2009, Spyer died, leaving Clause because its “principal effect is to iden- her entire estate to Windsor. When Windsor tify a subset of state-sanctioned marriages and attempted to claim the estate tax exemption for make them unequal.”22 surviving spouses, the federal government denied her request due to Section 3 of DOMA Recognizing the dueling rationales of the which excludes a same-sex partner from the majority opinion, Chief Justice Roberts wrote a definition of “spouse” as that term is used in dissenting opinion emphasizing that federalism the Internal Revenue Code and other federal was the basis of the majority’s holding, explain- statutes and regulations.14 Windsor brought ing that the “logic of the [majority’s] opinion suit in federal district court, which ruled in her does not decide, the distinct question whether favor and declared Section 3 of DOMA uncon- the States, in the exercise of their historic and stitutional.15 After the 2nd Circuit Court of essential authority to define the marital relation Appeals affirmed the district court, the Supreme may continue to utilize the traditional defini-

1064 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 California voters approved the ballot initiative …Oklahoma’s marriage Proposition 8 which amended the California Constitution to define marriage as the union amendment unjustifiably between one man and one woman. Two same- sex couples who wished to marry in California discriminates against homosexuals filed suit, alleging Proposition 8 violated the because restricting marriage U.S. Constitution. Perry thus had the chance to be the gay rights movement’s Brown v. Board of to opposite-sex couples is not Education,34 squarely presenting the question of whether it is constitutionally permissible for a rationally related to any legitimate state to prohibit same-sex marriage. government purpose. But Perry ended with a whimper rather than with a bang. After a California federal court invalidated Proposition 8 as a violation of the Due Process and Equal Protection Clauses of 23 tion of marriage.” As the chief justice read the the U.S. Constitution, the governor and attor- majority opinion, it upheld the state’s authority ney general of California declined to appeal to define marriage without federal interfer- the decision. Although the 9th Circuit ruled ence, including the decision to define marriage that the official proponents of Proposition 8 24 as the union of one man and one woman. had standing to defend it, the Supreme Court Justice Scalia disagreed with the chief justice, disagreed, and dismissed the appeal.35 Because authoring a separate and blistering dissent, the court dismissed Perry for lack of standing, explaining why he believed the majority had it did not address the constitutionality of “fool[ed]” people into believing its opinion same-sex marriage bans nor explain whether was based on federalism principles.25 Charac- its ruling in Windsor called into question their terizing the majority opinion as “rootless and constitutionality. 26 shifting,” Justice Scalia explained that the real BISHOP V. UNITED STATES basis of the court’s opinion was a continuation of the court’s holdings in Romer v. Evans27 and Within months of the Supreme Court’s deci- Lawrence v. Texas28 — that a “bare desire to sions, several U.S. district courts issued rulings harm” an unpopular group cannot be a consti- concerning state same-sex marriage bans in tutional basis for upholding a law.29 If this is the light of Windsor and Perry.36 Each of these rul- true basis of the majority opinion, according to ings endorsed the broader equal protection Justice Scalia, then it foreshadows “the view analysis found in Windsor. On Jan. 14, 2014, that [the] Court will take of state prohibition of Judge Kern released his opinion, concluding same-sex marriage.”30 Justice Scalia mockingly that Oklahoma’s marriage amendment unjusti- predicted that the court, “which finds it so hor- fiably discriminates against homosexuals be- rific that Congress irrationally and hatefully cause restricting marriage to opposite-sex cou- robbed same-sex couples of the ‘personhood ples is not rationally related to any legitimate and dignity’ which state legislatures conferred government purpose.37 Examining each of the upon them, will of a certitude be similarly justifications for the marriage amendment appalled by state legislatures’ irrational and offered by its proponents,38 the court found that hateful failure to acknowledge that ‘person- the marriage amendment was not rationally hood and dignity’ in the first place.”31 related to any of them. The state argued that restricting marriage to heterosexual couples HOLLINGSWORTH V. PERRY encourages responsible procreation and pro- While Windsor considered whether the fed- motes the ideal environment for child-rearing, eral government may refuse to recognize same- but the court noted that “[c]ivil marriage in sex marriages in states allowing such marriages, Oklahoma does not have any procreative Perry concerned whether a state may refuse to prerequisites”39 and “[e]xcluding same-sex cou- allow same-sex marriage at all.32 In May 2008, ples from marriage has done little to keep Okla- the California Supreme Court struck down the homa families together thus far, as Oklahoma state’s legislative ban on same-sex marriage, consistently has one of the highest divorce rates allowing approximately 18,000 same-sex cou- in the country.”40 The state also abstractly ples to marry.33 Less than six months later, argued that allowing same-sex marriage would “negatively impact” the institution of marriage

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1065 as a whole. Yet, as the court pointed out, “the 6. ABC News, “Bush on Religion and God,” Oct. 26, 2004, available at http://goo.gl/cyhIQ4 (last accessed May 2, 2014). ‘negative impact’ argument is impermissibly 7. Bishop, supra, at *81. (“On February 6, 2004, three days after the tied to moral disapproval of same-sex couples second ruling by the Massachusetts Supreme Court, Tulsa and Okla- 41 homa City newspapers both reported that State Senator James Wil- as a class of Oklahoma citizens.” The court liamson, author of the Marriage Protection Amendment, made public forcefully explained that the “negative impact” statements regarding the need for a constitutional amendment in order to prevent a similar ruling in Oklahoma.”) (citing Marie Price, “Repub- argument “is also insulting to same-sex cou- lican Legislators Wary of Same-Sex Ruling,” Tulsa World, Feb. 6, 2004). ples, who are human beings capable of form- 8. CNN, “Same-Sex Marriage Bans Winning on State Ballots,” Nov. 42 3, 2004, available at http://goo.gl/Bb5fvu (“Voters in Arkansas, Geor- ing loving, committed, enduring relationships.” gia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Finding no rational connection between the mar- Oklahoma, Oregon and Utah all approved anti-same-sex marriage riage amendment and any of its purported justi- amendments by double-digit margins.”) (last accessed May 2, 2014). In 2006 and 2008, several more states approved their own constitutional fications, the court concluded the amendment is amendments. The amendments passed in every state in which they “an arbitrary, irrational exclusion of just one were proposed, except Arizona in 2006. That victory was short lived, as it passed there in 2008. See National Conference of State Legisla- class of Oklahoma citizens from a governmental tures, “Same-Sex Marriage and Domestic Partnerships on the Ballot,” benefit.”43 Judge Kern’s opinion did not result in available at http://goo.gl/9Z3gft (last accessed May 2, 2014). 9. See Oklahoma General Election Results for State Question 711, same-sex marriage being immediately legal in http://goo.gl/vNkyLe (last accessed May 2, 2014). Oklahoma, however, as he stayed his decision 10. Okla. Const. Art. 2, §35. 44 11. The plaintiffs originally sued the governor and attorney gen- pending an appeal to the 10th Circuit. eral, who claimed sovereign immunity. After the district court concluded the governor and attorney general did not have sovereign THE FUTURE OF SAME-SEX MARRIAGE immunity, the 10th Circuit reversed on different grounds, instructing IN OKLAHOMA AND BEYOND the district court to dismiss the case for lack of standing. Bishop v. Okla. ex rel. Edmondson, No. 06-5188, 2009 WL 1566802, *2 (10th Cir. June 5, Since the Supreme Court’s decisions in Wind- 2009). The 10th Circuit reasoned that that the governor and attorney general were not proper defendants because they are not in charge of sor and Perry last June, several federal district issuing marriage licenses in Oklahoma. Id. at *3. Instead, the proper courts have considered the constitutionality of defendants should have been district court clerks who issue marriage licenses. Id. After being granted leave to amend their complaint, the their states’ bans on same-sex marriage, and plaintiffs sued Sally Howe Smith, the district court clerk for Tulsa every single court to issue a ruling has found, County. 45 12. Bishop, supra, at *12 (“The Court delayed ruling in this case as in Bishop, the bans to be unconstitutional. pending the Supreme Court’s decisions [in Windsor and Perry].”). The state of Oklahoma immediately appealed 13. U.S. v. Windsor, 133 S.Ct. 2675, 2682 (2013) Judge Kern’s decision to the 10th Circuit Court 14. Section 3 of DOMA provides: In determining the meaning of any Act of Congress, or of any of Appeals, which will hear it along with an ruling, regulation, or interpretation of the various administrative appeal from a Utah federal court decision bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as invalidating that state’s same-sex marriage husband and wife, and the word ‘spouse’ refers only to a person ban.46 The 10th Circuit heard oral arguments in of the opposite sex who is a husband or a wife. 1 U.S.C. §7. In light of this statute, Windsor could not claim the estate April and a decision is expected sometime later exemption, which applies to “any interest in property which passes or this year. The 10th Circuit could affirm Judge has passed from the decedent to his surviving spouse.” 26 U.S.C. §2056(a) (emphasis added). Kern’s decision, which would require Oklaho- 15. Windsor did not challenge Section 2 of DOMA which provides ma to issue marriage licenses to same-sex cou- that no state shall be required to recognize and give effect to any mar- ples just as it issues licenses to heterosexual riage performed in another state. See Defense of Marriage Act §2, 28 U.S.C. §1738C; Windsor, supra, at 2682-83 (“DOMA contains two opera- couples. On the other hand, the 10th Circuit tive sections: Section 2, which has not been challenged here, allows States could reverse the district court’s opinion and to refuse to recognize same-sex marriages performed under the laws of other States.”) (emphasis added). uphold the constitutionality of Oklahoma’s 16. See Windsor, supra, at 2691 (internal backets, quotation marks marriage amendment. In either case, however, and citiations omitted). 17. Id. at 2692. the 10th Circuit’s decision almost certainly will 18. Id. (“Despite these [federalism] considerations, it is unneces- be appealed to the United States Supreme sary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”). Court which, with the rapidity with which 19. Id. lower courts are issuing decisions on the con- 20. Id. 21. Id. stitutionality of same-sex marriage bans, will 22. Id. at 2694. feel pressure to grant certiorari to it, or a similar 23. See id. at 2696 (Roberts, C.J., dissenting) (internal quotation appeal, and settle the issue once and for all. marks and citation omitted). 24. See id. at 2697 (After explaining that the majority opinion is based on the federal government’s departure from state regulation of 1. No. 04-CV-848-TCK-TLW, 2014 U.S. Dist. LEXIS 4374 at *119-121 marriage, suggesting that “there is no such departure when one State (N.D. Okla. Jan. 14, 2014). adopts or keeps a definition of marriage that differs from that of its 2. See www.freedomtomarry.org/states (last accessed May 2, 2014). neighbor[.]”). 3. See id. 25. Id. at 2705 (Scalia, J., dissenting). 4. See infra note 36. A Texas federal judge recently struck down 26. Id. Texas’s same-sex marriage ban. Federal judges in Kentucky and Ten- 27. 517 U.S. 620 (1996). Romer struck down Colorado’s Amendment nessee also issued rulings requiring those two states to recognize 2, which would have prevented the State of Colorado or any of its same-sex marriages performed in other states. See id. municipalities from recognizing gay and lesbian individuals as a pro- 5. 798 N.E.2d 941, 968 (Mass. 2003). tected class.

1066 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 28. 539 U.S. 558 (2003). Lawrence overruled the court’s holding in 38. The state offered four justifications for the marriage amend- Bowers v. Hardwick, 478 U.S. 186 (1986), which had allowed states to ment: 1) encouraging responsible procreation and child-rearing; 2) criminalize sodomy. The court found that sodomy laws “demean[ed] steering naturally procreative relationships into stable unions; 3) pro- the lives of homosexual persons . . . by making their private sexual moting the ideal that children be raised by both a mother and a father conduct a crime.” Id. at 575, 578. in a stable family unit; and 4) avoiding a redefinition of marriage that 29. Windsor, supra, at 2709 (Scalia, J., dissenting). would necessarily change the institution and could have serious unin- 30. Id. tended consequences. See id. at *101-02. 31. Id. at 2710. 39. Id. at *106. 32. See Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). 40. Id. at *114. 33. See In re Marriage Cases, 183 P. 3d 384 (Cal. 2008). 41. Id. at *117-18. Ironically, Judge Kern cited Justice Scalia in 34. 347 U.S. 483 (1954). explaining how the “negative impact” argument was really just a dis- 35. Specifically, the Supreme Court found that the proponents of guise for arbitrary prejudice against homosexuals: “‘Preserving the Proposition 8 had no stake in the outcome of the appeal of the district traditional institution of marriage is just a kinder way of describing the court’s decision. The proponents had not suffered any injury. They State’s moral disapproval of same-sex couples.’” Id. at *118-19 (quoting were only interested in vindicating the constitutional validity of a law Lawrence, 539 U.S. at 602 (Scalia, J., dissenting)). enacted by the citizenry. This “generalized grievance” could be shared 42. Id. at *118. by any concerned citizen and was insufficiently “concrete and particu- 43. Id. at *120. lar” to confer standing to appeal. See Perry, supra, at 2662. 44. Id. at *121-22. 36. Prior to the Oklahoma district court’s decision in Bishop, state 45. See supra note 36. courts in New Jersey and New Mexico, and a federal court in Utah 46. See Kitchen, supra note 36. The 10th Circuit did not consolidate struck down their states’ same-sex marriage bans. See Garden State the Utah and Oklahoma appeals, but the same three-judge panel will Equal. v. Dow, 82 A.3d 336, 339, (N.J. Super. 2013), aff’d by Garden State hear both appeals. Equal. v. Dow, 79 A.3d 1036, 1038–39, (N.J. 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL About The Author 6697874 (D. Utah Dec. 20, 2013). Since Bishop, federal courts in Virginia, Texas, and Michigan have reached the same result. See Bostic v. Rainey, No. 2:13CV395, 2014 WL 561978 (E.D. Va. Feb 13, 2014); De Leon v. Conor Cleary is an associate at Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D.Tex. Feb 26, 2014); DeBoer v. Snyder, No. 12–CV–10285, 2014 WL 1100794 (E.D. Hall Estill in Tulsa where he pri- Mich. Mar. 21, 2014). Other federal courts have issued more limited marily practices in commercial rulings finding that a state must recognize same-sex marriages per- litigation, employment and Indian formed in other states. See, e.g., Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013); Bourke v. Beshear, 2014 WL 556729 (W.D.Ky. law. He also volunteers as the legal Feb. 12, 2014); Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 clinic director at Oklahomans for (M.D. Tenn. Mar 14, 2014). 37. The court used a traditional equal protection analysis and Equality. He graduated from OU employed rational basis review. See Bishop, supra, at *85-86 n.32. The Law School in 2010, where he court declined to find that homosexuals are a suspect class warranting the application of heightened scrutiny to the marriage amendment. See served as articles editor of the Oklahoma Law Review. id. at *90-94. (“Classifications against homosexuals and/or classifica- As an undergrad at OU, he won the college debate tions based on a person’s sexual orientation are not subject to any form of heightened review in the Tenth Circuit.”) (citation omitted). national championship.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1067 1068 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Diversity in the LAW

Diversity Requires More American Indian Lawyers and Judges By Klint A. Cowan he practices of federal Indian law and tribal law form a unique structure on the landscape of American law. The Tpractices address legal issues arising from the existence and recognition of American Indian tribal governments, which pre- date the American revolution. These practice areas, unlike any other, deal specifically with the legal rights of persons classified as political minorities. Yet, despite the impact of federal law on the lives of American Indians, relatively few have become practicing attorneys. The bar should endeavor to address this defi- ciency by educating, mentoring and developing American Indian attorneys. Law schools first recognized the need for ple, every law school in Oklahoma has devel- American Indian law students in the 1960s. oped comprehensive programs in federal Indi- The modern effort to bring American Indians an law and tribal law. So have 23 other law into the profession began in 1967, when profes- schools throughout the United States.4 sors at the University of New Mexico School of Oddly, based on census data through 2000, it Law created an intensive summer program for was not at all clear that these efforts were American Indians planning to attend law working. In 1990, the U.S. Census identified school.1 The program, now known as the Amer- 1,502 American Indian attorneys, equal to ican Indian Law Center’s Pre-Law Summer approximately 0.2 percent of the total number Institute (PLSI), simulates the first semester of of attorneys. In 2000, there were 1,720, an law school and gives American Indian students increase of only 228.5 The situation may have a chance to acclimate to the Socratic method improved more recently. By 2010, data from the and other issues faced by first-year law stu- American Community Survey identified 2,640 dents.2 The institute has helped foster camara- American Indian attorneys.6 But that data also derie among American Indian law students showed that those attorneys composed no and has likely contributed to a rise in American more than 0.3 percent of the profession. When Indian law graduates.3 Recognizing the need to attorneys identifying as American Indian and bring more American Indians into the legal another race are considered, the data suggest profession, law schools followed the PLSI that American Indians have accounted for no example. The last two decades have seen the more than 0.6 percent of attorneys at any time creation of many programs and scholarships during the past two decades.7 The dearth of aimed at American Indian students. For exam-

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1069 American Indian attorneys is especially trou- bling when one considers that American Indians represent 1.7 percent of the U.S. population, …even when qualified nearly 3 times the percentage of American Indi- American Indian attorneys exist, an attorneys.8 Moreover, despite the apparent upward trend there is no guarantee they will between 2000 and 2010, the recent past has also attain important posts… demonstrated that even when qualified Ameri- can Indian attorneys exist, there is no guarantee they will attain important posts such as 13 judicial clerkships or judgeships. While there Qualified. In response the president nomi- are attempts to rectify the first issue, there is nated a non-Indian candidate for the position. unlikely to be significant progress on the num- The second American Indian nomination is 14 ber of American Indian judges (outside of pending. Further, when the president consid- tribal courts) in the near future. In an attempt ered nominating an American Indian to the to improve the numbers of American Indian U.S. Court of Appeals for the 10th Circuit, a judicial clerks, PLSI participates in the ABA hostile reaction from Oklahoma’s congressio- Judicial Clerkship Program. That program nal delegation appears to have derailed the 15 began in 2001 as an effort to increase minority nomination. The negative response is trou- participation in the judicial clerkship applica- bling because no American Indian has ever tion process.9 The goal of PLSI’s participation is served on a federal appellate court. to secure clerkships for its alumni.10 It is prob- The fields of federal Indian law and tribal ably reasonable to expect clerkship positions law continue to grow. Over the last decade, held by American Indians to rise as bar associa- many large firms have established Indian law tions and the judiciary implement these and practices.16 Much of this growth has been driv- other minority clerkship programs. Indeed, it en by the rise of tribal economies through gam- would be difficult for the numbers of American ing, energy and other resources. It has been Indian clerks to dip below the most recent data aided by Congress’ termination in 2000 of the available. The last comprehensive study of requirement that the Bureau of Indian Affairs judicial clerkship demographics showed an approve tribal attorney contracts.17 But unless abysmal rate of clerks who identify as Ameri- our profession makes more significant strides can Indian. That study, released in 2000 and in growing the number of American Indian covering a five-year period ending in 1998, attorneys, and especially American Indian found that American Indians composed judges, we risk leaving behind the very people between 0.1 percent and 0.6 percent of all fed- who are most affected by the development of eral, state, and local clerks.11 these areas of law. The number of American Indians serving as 1. See http://ailc-inc.org/. judges (outside of tribal courts), however, pres- 2. Id. ents an even more significant problem for 3. Id. 4. See Turtle Talk, Law Schools Offering Native Law Programs, those who believe diversity is important in all available at http://turtletalk.files.wordpress.com/2009/04/law- areas of the law, including the bench. Further, schools-offering-indian-law-programs.pdf. 5. Lawrence Baca, American Indians and the “Box Checker” Phenome- given the important role of federal case law in non, IILP Review 2011: The State of Diversity and Inclusion in the Legal the daily lives of American Indian people and Profession 70 (2011) (discussing the discrepancy between Census Bureau data on the number of American Indian attorneys and law their tribal governments, having American school data on the number of American Indian graduates). Indians on the federal bench seems especially 6. U.S. Census 2010, EEO 1r. Detailed Census Occupation by Sex vital. Nevertheless, according to the Federal and Race/Ethnicity for Residence Geography, EEO Tabulation 2006- 2010 (5-year ACS data) by EEO Occupation Code 2100 (this survey Judicial Center, only two American Indians estimated that individuals identifying as American Indians and have ever served as federal judges.12 And Presi- another racial group accounted for an additional 3460 attorneys, or an additional 0.3% of all attorneys). This data is available at http://fact dent Obama’s attempts to raise that number finder2.census.gov/. have been met with criticism. Between 2010 7. ABA, Lawyer Demographics 2008 (2009) available at http:// americanbar.org. and 2013, the president nominated two Ameri- 8. Tina Norris, Paula L. Vines, and Elizabeth M. Hoeffel, The can Indians to seats on federal district courts. American Indian and Alaska Native Population: 2010, 3, U.S. Census On Dec. 17, 2011, the Senate returned the first Bureau No. C2010BR-10 (Jan. 2012). 9. For more information on the ABA Judicial Clerkship Program, nomination without action despite the nomi- see http://www.americanbar.org/groups/diversity/diversity_pipe- nee receiving an ABA Rating of Unanimously line/projects_initiatives.html. 10. See http://ailc-inc.org/PLSI-Clerkship.html.

1070 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 11. National Association for Law Placement, Courting Clerkships: The NALP Judicial Clerkship Study, Table 2 Racial/Ethnicity Distribution About The Author of Judicial Clerkships by Level of Clerkship: 1994-1998 (2000) available at http://www.nalp.org/clrktb1_8#02.. 12. Federal Judicial Center, Diversity on the Bench, American Klint Cowan is a director and Indian Judges on the Federal Courts, available at http://www.fjc.gov/ shareholder in the Oklahoma City servlet/nDsearch?race=American+Indian (identifying Frank Seay and Michael Burrage as the only federal judges to be identified as Ameri- office of Fellers, Snider, Blanken- can Indians). See also The Oklahoman, “Three Confirmed To Be Judges, ship, Bailey & Tippens PC. His U.S. Marshal,” Archive ID 577837 (June 10, 1994) available at http:// newsok.com/3-confirmed-to-be-judges-u.s.-marshalarticle/2468675/ practice focuses on litigation in- ?page=1. cluding matters related to gaming 13. See http://www.judiciary.senate.gov/nominations/Materials and federal Indian law. He has 112thCongress.cfm (Arvo Mikkanen, Kiowa). 14. See http://www.judiciary.senate.gov/nominations/Materials represented several Indian tribes 113thCongress.cfm (Diane Humetewa, Hopi). in litigation in federal, state and tribal court. He holds 15. Jim Meyers, Tulsa World, “Court Vacancy Causes Stir: The White House has not sought input from some key Oklahoma Decision a J.D. with highest honors from TU and a master of law Makers,” 2010 WLNR 10653891 (May 23, 2010) (recounting the nega- degree, with a distinction for his dissertation, from the tive response to the potential nomination of Keith Harper, Cherokee, to the 10th Circuit). University of Oxford. 16. For instance, at least two members of the top 10 law firms by size have developed Indian law practices. Those are: K&L Gates, http://www.klgates.com/indian-law-practices/?nomobile=perm; and Greenberg Traurig, http://www.gtlaw.com/Experience/Practic- es/American-Indian-Law. 17. Indian Tribal Economic Development and Contract Encourage- ment Act of 2000, P.L. 106-79, §§2, 3, 114 Stat. 46.

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n September 2014 Issues 2015 Issues Bar Convention Editor: Carol Manning n August n January Children and the Law Meet Your OBA n October Editor: Judge Megan Simpson Editor: Carol Manning Family Law [email protected] Editor: Leslie Taylor n Deadline: May 1, 2014 February [email protected] Legal Research Writing Deadline: May 1, 2015 n September Editor: Erin L. Means Bar Convention [email protected] n November Editor: Carol Manning Deadline: Oct. 1, 2014 President’s Topic Editor: Melissa DeLacerda n October n March [email protected] Health Care Municipal Law Deadline: Aug. 1, 2015 Editor: Emily Duensing Editor: Mark Ramsey [email protected] [email protected] n Deadline: May 1, 2014 December Deadline: Oct. 1, 2014 Ethics & Professional Responsibility n November n April Editor: Shannon L. Prescott Changes to the Legal Profession Law Day [email protected] Editor: Melissa DeLacerda Editor: Carol Manning [email protected] Deadline: Aug. 1, 2015 Deadline: Aug. 1, 2014 n May Education Law n December Editor: Judge Megan Simpson Ethics & Professional [email protected] Responsibility If you would like Deadline: Jan. 1, 2015 Editor: Judge Allen Welch to write an article [email protected] n August Deadline: Aug. 1, 2014 Opening a Law Office on these topics, Editor: Dietmar Caudle [email protected] contact the editor. Deadline: May 1, 2015

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1071 1072 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Diversity in the LAW

The Melting Pot Outside Your Office By Ruth J. Addison and Daniel Gomez braham Lincoln said, “[y]ou can have anything you want — if you want it badly enough. You can be anything you want to be, do anything you set out to accomplish if you A 1 hold to that desire with singleness of purpose.” It remains true that the American dream is open to all people, but barriers still exist and unfortunately, not everyone grows up hearing or believing this ideal. For some, doubt is rooted in a perceived lack of diversity and inclusion among professionals.

Diversity is a term that has been around for It is no secret that the legal profession — law generations and is generally defined as “[t]he firms in particular — has done poorly in both condition of having or being composed of dif- the areas of diversity and inclusion, and Okla- fering elements: variety; especially: the inclusion homa is no exception.6 It is undeniable that of different types of people (as people of differ- lawyers, as a group, do not resemble the gen- ent races or cultures) in a group or organization.”2 eral populace from a demographic standpoint.7 Traditionally, diversity is a statistic concerning Even within our own ranks, representation at certain identifiers including, but not limited to, the partnership level of large law firms does gender, race, nationality, religion or belief, sexual not comport with the demographics of persons orientation, physical or mental disabilities and/ holding law degrees.8 The legal profession has or genetic background.3 also fallen behind other industries and economic sectors, which have seen significant In recent years, the concept of diversity has progress in the areas of diversity and inclusion. evolved beyond statistics and now involves a Fortunately, the profession has not ignored the broader ideal of “inclusion.” Inclusion is “[t]he trends and, in recent years, efforts to improve act of including; a relation between two classes have gained traction. This article addresses that exists when all members of the first are also important aspects of this very issue, including members of the second.”4 As author and diver- the changing landscape of the people we repre- sity consultant Vern A. Myers aptly analogizes sent, the demand by businesses that their law in her book Moving Diversity Forward: How to firms do better in diversity and inclusion initia- Go From Well-Meaningā to Well-Doing, published tives, and steps that law firms in Oklahoma can by the American Bar Association Center for take to better recruit and retain diverse attor- Racial & Ethnic Diversity: “Diversity is being neys. Additionally, it explores issues faced by invited to the party; inclusion is being asked to diverse attorneys in what can be an unfamiliar dance.”5 and challenging law firm culture and difficul-

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1073 ties faced by firms attempting to retain diverse different cultures and the nuances in their lan- attorneys. guages is an asset to businesses and thereby to the law firms that seek to represent them. It THE ECONOMIC REALITIES OF CHANGING DEMOGRAPHICS will help law firms communicate with their diverse clients and thus increase their effective- American history is one of diversity, and it ness in serving them. Being on the same page should come as no surprise that we remain a with a client will result in a satisfied client. country of diverse persons. Our populace rep- Thus, if firms are to benefit from the services of resents almost every country on Earth.9 As diverse groups, it will be in their best interests former U.S. Secretary of State Colin Powell to cultivate attorneys from diverse groups. once said, “America is a nation of nations, made up of people from every land, of every This will require hiring and training attor- race and practicing every faith. Our diversity is neys from diverse groups to handle their busi- not a source of weakness; it is a source of nesses. In this way, firms will be able to keep strength, it is a source of our success.”10 The up with competition and not fall behind emerg- world is a diverse place, full of diverse people, ing business trends. After all, the primary thoughts and actions. It consists of approxi- objective of most businesses is to generate mately 7.1 billion people.11 Of those, approxi- income and increase profit. Law firms are busi- mately 315 million reside in the U.S.12 Of the nesses. This begs the question, “[w]hy are busi- approximately 3.8 million people residing in nesses in corporate America succeeding, but Oklahoma, more than 1 million are minorities law firms are not?” Corporate America is that contribute to the state’s diversity.13 ahead of the game because it is competing in a global market. The global market consists of The trend of diversity in this country has diverse consumers, and businesses are doing accelerated. In 2012, the U.S. government pub- whatever it takes to maintain security, includ- lished statistics documenting that Caucasians ing hiring and retaining diverse people.20 The are a new minority in babies.14 Projections state next logical step will be for those that serve that in five years minorities will make up more these increasingly diverse businesses — such than half of children under the age of 18.15 This as law firms — to keep up. rings true as minorities make up 49.9 percent of THE ONGOING CALL TO ACTION the population under the age of five.16 Within a generation, diverse groups will become the Not surprisingly, diversity initiatives in the majority.17 Increasingly, these minorities are legal profession appeal to the bottom line. In retaining their cultural identities while also 1999, the chief legal officers of roughly 500 partaking in the American dream. The majority major corporations signed a document titled can no longer assume that diverse persons will Diversity in the Workplace — A State of Principal eventually assimilate entirely into one homog- encouraging their outside counsel to do better enous “American” culture; but now more than in diversifying their workplaces.21 In 2004, see- ever, cultural understanding is a necessity, not ing little action, Rick Palmore, then general merely an aspiration.18 counsel for Sara Lee and now an executive for General Mills, drafted a more specific “Call to As the “minorities” become the majority, Action” addressed to corporate legal depart- they will run our businesses, economy governments calling for more direct action requesting ment and will have a strong presence in every that, as a group, corporate clients commit other aspect of commerce. From a lawyer’s themselves to “end or limit our relationships perspective, this means the demographics of with firms whose performance consistently our clients and other consumers are changing. evidences a lack of meaningful interest in being For these reasons alone, law firms should make diverse.”22 About 100 companies, including a cognizant and quantifiable effort to imple- American Airlines, Boeing and General Motors, ment strategies to cultivate diversity. In order signed on to the Call to Action and its effects to serve the workplace, we need to resemble it. are felt today.23 It is no longer enough to conduct training seminars, ask employees to watch PowerPoint The most prominent repercussion was felt by presentations about diversity or even hire outside counsel for Wal-Mart Stores Inc., brand- diverse people for statistical reasons.19 Law ed as Wal-Mart, which dropped law firms and firms need to do more to create an environ- refused to provide more business to certain ment of inclusion and growth. Understanding counsels that were not meeting diversity stan-

1074 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 dards.24 DuPont is also cited as having “parted opposed to a homogeneous one, provide a bet- ways” with one firm that did not adequately ter think tank. Simply put, diversity brings support its diversity efforts.25 It was in response different life experiences and thinking styles to to this call to action that many of the larger law the table — something that requires the work- firms and those representing large corporate place to adapt in order to remain efficient. It is clients began forming diversity committees the one-stop shop ideology. Retail companies within their firms to assure that that they like Wal-Mart and The Target Corporation, would not fall behind their peers in obtaining, branded as Target, have capitalized and or retaining, business from these large compa- advanced on this idea for years. Retail consum- nies. Those among us who have pursued this ers are able to purchase a majority of their type of work have undoubtedly encountered household goods, clothing, groceries, etc., in diversity surveys and detailed requests for the same location. The idea behind this ap- information about diversity as part of their proach is that there is something for everyone. proposals. This is clear evidence that busi- Law firms should employ the same tactic. If nesses are continuing to pursue diversity. law firms are not proactive in seeking diverse attorneys, they will soon find whole genera- Many corporate general counsel and execu- tions of potential clients taking their business tives who are in charge of retaining legal counsel and wallets elsewhere. In discussing the bene- have not been shy in discussing their adherence fits of diversity regarding outside counsel, to the call to action, which underscores what is general counsel for Shell Oil summarizes that often referred to as the “business case” for diver- “[w]hen you use people of diverse backgrounds sity.26 A study by the Minority Corporate Coun- and different ways of looking at things, you get sel Association (MCCA) states, “law firms that a better solution.”31 only pay lip service to diversity may pay a stiff economic price. Law firms that do not take diversity seriously are already losing money.”27 Competency is obviously the main criterion when a business seeks to retain outside counsel, but all else being equal, and in light of the …law firms that fail ongoing call to action, diversity within the law to improve in this area risk losing firm is increasingly becoming the determining factor when businesses retain counsel.28 As out on lucrative opportunities expressed by general counsel for Merck Sharp

& Dohme Corp. (Merck), a worldwide leader altogether. in medicine and research, “[w]e are in the for- tunate position of having many highly capable law firms lining up to work with us. And it was hard in some ways to differentiate among these Diversity is thus a material element to a suc- firms. But we found that diversity was some- cessful business nationally and international- thing that would allow us to make that ly.32 At the most basic level, many, if not all, law differentiation.”29 There further appears to be a firms understand the importance of diversity. growing network of diverse in-house counsel It is the reason they form practice and industry that routinely recommends law firms with groups. If a firm diversifies practice areas and good diversity records to one another and law expands the skill set offered by its attorneys, it firms that fail to improve in this area risk losing can service a larger population and in turn, out on lucrative opportunities altogether.30 increase revenue and enhance its reputation. Why not employ the same idea using racial, CLIENTS ARE CONSUMERS sexual preference, gender, religious and socio- Lawyers are innovators who thrive on favor- economic backgrounds? The answer comes able outcomes and creative arguments. This is back to an understated truth — employers hire how we obtain and maintain business, because individuals that they are comfortable with clients are our consumers. Consumers want and/or are like them. The same principle applies the best product for the best price. They also to clients. It is our experience that potential cli- want the benefit of hiring law firms without ents and diverse attorneys in and outside of going through the hassle of shopping around Oklahoma call seeking racially diverse counsel and playing the odds. It makes sense that law or referrals. The majority are looking for some- firms with diverse groups of attorneys, as one with law firm experience outside our prac-

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1075 tice areas. Unfortunately, the options locally are corporate America or the public sector where limited, and we are forced to rely on a small, they see other successful diverse attorneys. though developing, network of diverse attor- There are also reports of social stigmas, neys. Law firms that fail to improve in this area 42 risk falling behind the increasingly diverse bars struggles or presumptions of incompetence. of larger competitors in larger surrounding mar- For example, many diverse professionals recall kets such as Dallas, Houston, Kansas City and situations in which a Caucasian colleague 43 Saint Louis. described them as polite or articulate. Nor- mally, such statements are compliments, but in INCLUSION REQUIRES A PROACTIVE this context, they are not because these attri- EFFORT ON EVERYONE’S PART butes are presumed about their Caucasian coun- Many articles and reports are available that terparts.44 This encourages feelings of isolation. describe the various reasons some young These unintentional slights are referred to as diverse attorneys struggle, especially in the “micro-inequities” or “micro-insults,” and can law firm environment.33 Although there are be particularly harsh to their recipient while the exceptions, some report that they are wholly perpetrator remains oblivious to the implication unfamiliar with the unwritten rules for success of the seemingly benign statement.45 It is mate- in a law firm. They feel that they will not suc- rial that once a young diverse attorney is hired, ceed because law firm culture is foreign to all efforts be made to retain that attorney and to them.34 They have no knowledge of the dos and avoid the pitfalls that can result in diverse attor- don’ts, or what skills to polish in order to neys seeking other opportunities.46 thrive.35 Moreover, they do not have the benefit of a mentor or family member who has been So how do law firms deal with this? Myers’ there before.36 No one has ever explained that book, Moving Diversity Forward, provides a law firm culture requires the ability to carefully complete outline on how to accomplish diver- navigate and negotiate through organization sity in your legal office and an essential read- politics.37 This causes further isolation and a ing for those who take the matter seriously. feeling that the attorney is not meeting expec- Among the most important factors to consider tations or working hard enough.38 Reports also is to shed your colorblind glasses, recognize show that mentorship within a firm is a key to each person’s differences, and embrace the success and many young diverse attorneys same. If law firms are serious about this, they struggle to connect in an environment where can implement the following 10 steps:47 they share little or no cultural identity with any 1) Take steps to ensure that diverse candi- of the decision-makers in the firm.39 Uninten- dates see people that look or have similar tionally, individuals tend to favor people who backgrounds on all levels-from the share- are most like themselves; and young diverse holders to the support staff; attorneys report feeling that they fall behind their white male colleagues in the area of men- 2) Educate employees and members on torship and relationships with the partners at diversity; their firms.40 Despite this, several diverse attorneys are trying to bridge the gap within law 3) Set out hiring guidelines and employ firms by choosing to act as trailblazers for strategies to meet, and get to know future generations. Diversity begets diversity, diverse individuals; and as these trailblazers move further in their 4) Include diverse attorneys on marketing careers, there is hope that some of the reported and networking opportunities; barriers will erode over time. 5) Include diversity in the mission state- Among law firms that have made strides in ment; diversity hiring, retention is a problem that has drawn considerable attention. Some young 6) Create internal committees that incorpo- diverse attorneys report difficulty in believing rate diverse candidates on a variety of they can succeed or achieve shareholder or different situations; partner status when that group bears little 7) Assess employees’ learning and commu- resemblance to themselves.41 This sometimes nication styles and strengths; results in these young diverse attorneys looking elsewhere. They may seek opportunities in 8) Promote each employee’s strengths;

1076 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 9) Participate in pipeline programs with 5. Vern A. Myers, Moving Diversity Forward; How To Go From Well- Meaning to Well-Doing, at 8-13 (American Bar Association 2011). area high school children and allow them 6. See U.S.ā Equal Employment Opportunity Commission, Diversity to shadow attorneys; and In Law Firms (2003) http://www.eeoc.gov/eeoc/statistics/reports/ diversitylaw/lawfirms.pdf. 10) Take action against all negative and/or 7. American Bar Association (ABA) Section of Legal Education & Admissions to the Bar: Lawyer Demographics (2013) (The ABA reports prejudicial behavior against diverse indi- that in 2010, 88.1 percent of licensed lawyers were white while 4.8 viduals. percent were black, 3.7 percent were Hispanic, and 3.4 percent Asian Pacific and had no identifiable report for other races or ethnicities. The CONCLUSION same report shows that as of 2005, 70 percent of licensed attorneys were male and 30 percent female.), www.americanbar.org/content/ dam/aba/migrated/marketresearch/PublicDocuments/lawyer_ Law firms must recognize diversity and demographics_2013.authcheckdam.pdf. inclusion and learn to understand these critical 8. National Association for Legal Career Professionals (NALP) (2013) (NALP reports that as of the end of 2013, women and minorities concepts. Diverse attorneys have different in partnership positions are increasing, but still lag behind the num- backgrounds. Different backgrounds mean dif- bers of licensed attorneys overall. As of 2013, women represented ferent thought processes and levels of under- approximately 20.22 percent of partners while minorities represented 7.10 percent.), www.nalp.org/uploads/PressReleases/2013Women standing. Open and honest discussions sur- MinoritiesPressRelease.pdf. rounding diversity is necessary among law 9. Emma Britz, Jeanne Batalova, Migration Policy Institute, U.S. In Focus, Frequently Requested Statistics on Immigrants and Immigra- firm decision-makers. Decision-makers will tion in the U.S., www.migrationinformation.org/usfocus/display. now begin to understand what they do not cfm?ID=931 (last visited on Jan. 2, 2014); see also Press Release, U.S. Census Bureau Projections Show a Slower Growing, Older, More know. When diverse attorneys are hired, the job Diverse Nation a Half Century from Now (Dec. 12, 2012), www.census. has just begun. They need familiarization and gov/newsroom/releases/archives/population/cb12-243.html. 10. Beth Douglass Silcox, A Star Arrives in Texas, National Diversity direction within the job environment. A majority Council (2007), www.nationaldiversitycouncil.org/wp-content/ of diverse candidates have never had anyone uploads/2012/03/ColinPowell.pdf. explain how a law firm works and what it takes 11. U.S. Department of Commerce, U.S. Census Bureau, http:// www.census.gov/popclock/ (last visited on Jan. 2, 2014). to succeed. In this regard, mentorship is key. 12. Id. Decision-makers must also appreciate the unstat- 13. U.S. Department of Commerce, U.S. Census Bureau, http:// factfinder2.census.gov/faces/tableservices/jsf/pages/productview. ed pressures that diverse attorneys are under to xhtml?pid=DEC_10_DP_DPDP1 (last visited on Jan. 2, 2014). assimilate. A law firm should prefer inclusion to 14. Hope Yen, Minorities In America: Whites Losing Majority In Under-5 Age Group, Associated Press (June 13, 2013, 2:25 p.m.), www. assimilation. Inclusion is embracing the attorney huffingtonpost.com/2013/06/13/minorities-in-america-census_ rather than the firm leaving it to the attorney to n_3432369.html. 15. Id. find his or her own way. 16. Id. 17. Id. Managing partners want the firm to succeed 18. See John T. Hewitt, Diversity at its Best: From Melting Pot to Salad after their watch is completed. They want a Bowl, Racing Toward Diversity Magazine (March 21, 2011, 7:10 p.m.) (Some even challenge the idea of the country as a “melting pot” where legacy. This ensures staying power, branding all different elements merge together into one homogeneous group and growth. In our changing world, this will and instead prefer the analogy to a “salad bowl” where “each ingredi- ent retains its flavor, color and texture, each complementing one not work if no one takes diversity and inclu- another and enhancing its overall nutritional value.”), http://racing sion seriously. Management should stress this towarddiversity.com/blog/2011/3/21/from-melting-pot-to-salad- objective. Most firms have some form of a bowl.html). 19. Glenn Llopis, Diversity Management is Outdated and Demands a diversity committee, and commitment to the New Approach, Forbes (Jan. 7, 2013, 10:35 a.m.), www.forbes.com/sites/ same is essential. Firms without diversity com- glennllopis/2013/01/07/diversity-management-is-outdated-and-demands-a-new-approach/. mittees are behind and should promptly take 20. Sherry Fox, Workforce Diversity: Meeting the Challenges Head action to form a committee. An effort to nur- On, Witi Business, www.witi.com/wire/articles/225/Workforce- Diversity:-Meeting-the-Challenges-Head-On/. ture each person’s skills must commence, along 21. Karen Donovan, Pushed by Clients, Law Firms Step Up Diver- with a thorough assessment of what that per- sity Efforts, The New York Times (July 21, 2006). 22. Id. son brings to the table. In order to develop 23. Id. business and client relations, a law firm must 24. Id. work together. 25. Id. 26. Roy Ginsburg, Diversity Makes Cents: The Business Case for Diver- sity, Bench & Bar of Minn., Vol. 62, No. 2 (Feb. 2005), www2.mnbar. 1. Lee E. Miller and Jessica Miller, A Woman’s Guide to Successful org/benchandbar/2005/feb05/law_at_lrg.htm. Negotiating, Second Edition, at 1 (2010), http://196.29.172.66:8080/ 27. Id. jspui/bitstream/123456789/2666/1/355.pdf. 28. Id. 2. “Diversity” definition, Merriam-Webster Online Dictionary, 29. Id. www.merriam-webster.com/dictionary/diversity (last visited Jan. 2, 30. Id. 2014). In this article, the words “diverse” and “diversity” also refer to 31. Id. and include terms such as “minority” and “minorities.” 32. Id. 3. U.S. Equal Employment Opportunity Commission, Administra- 33. Mona Mehta Stone, Memo To Law Firms: How to Better Recruit tive Enforcement and Litigation Statement, www.eeoc.gov/eeoc/ and Retain South Asian American Lawyers, Institute for Inclusion in the enforcement_litigation.cfm (last visited Jan. 2, 2014). Legal Profession Review 2012: The State of Diversity and Inclusion in 4. “Inclusion” definition, Merriam-Webster Online Dictionary, the Legal Profession (2012), 124, www.theiilp.com/Resources/ www.merriam-webster.com/dictionary/inclusion (last visited Jan. 2, Documents/IILPReview2012.pdf. 2014). 34. Id. at 136.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1077 35. Id. at 139- 140. 36. Id. at 127. About The AuthorS 37. Id. at 138. 38. Id. at 139. 39. Neil Hamilton and Sarah Gillaspey, Diversity Changes: Corporate Ruth Addison is a trial lawyer Clients and Law Firms, Minnesota Lawyer (June 10, 2010), www. with McAfee & Taft. Her practice stthomas.edu/media/hollorancenter/pdf/Diversity-change1.pdf. 40. Id. focuses on labor and employment 41. Stone, at 135-136, 138. and litigation. She is chair of the 42. Id. 43. See E. Macey Russell, Resisting Challenges to the Diversity Value OBA Diversity Committee. In Proposition, Institute for Inclusion in the Legal Profession Review 2012: 2012, the Tulsa County Bar Asso- The State of Diversity and Inclusion in the Legal Profession (2012), 73, ciation honored her with a Presi- www.theiilp.com/Resources/Documents/IILPReview2012.pdf. 44. Id. dent’s Award for her leadership as 45. Myers, at 53-54. chair of its Diversity Development 46. As described by Ginsburg, retention is also important to the bottom line because losing associates early in their careers often leads Committee, which was recognized for its efforts in to a loss to the firm for their investment in training the new associate; developing a program to educate high school students see also Stone, at 138-139. 47. See also Stone, at 142. about legal careers that are often under-represented by minority groups.

Daniel Gomez works for Con- ner & Winters in Tulsa where he practices Native American law and commercial litigation. Since 2012, he has served as chair for the Tulsa County Bar Associa- tion’s Diversity Development Committee and is a member of the Hispanic National Bar Association and the National Native American Bar Association.

County Attorney Lea County Government Lea County seeks a Chief Legal Officer with 5-10 years of experience in the public/ corporate sector. Lea County is a progressive oil and gas producing county and the fastest growing county in New Mexico. Lea County has a population of approximately 65,000 with 321 budgeted employees and a total budget of $114 million. The Chief Legal Offi- cer must analyze and review complex legal issues and provide counsel and advice to County Manager, Board of Commission, Department Heads and elected officials. Counsel will assist with litigation pertaining but not limited to contracts, employment, To get your real estate, compliance and regulatory issues, free listing on zoning and subdivisions and industrial revenue bonds. the OBA’s lawyer Please forward resume and salary require- listing service! ments to: Just go to www.okbar.org and log into Lea County Human Resources your myokbar account. 100 N Main, Suite 4 Then click on the Lovington, NM 88260 “Find a Lawyer” Link.

1078 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1079 1080 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Diversity in the LAW

Sexual Orientation: Acceptance 1982 – 2014 By Jane Eulberg

orrowing from Barbara Mandrell and George Jones, “I was a gay lawyer in Oklahoma, when being a gay lawyer in BOklahoma wasn’t cool.” I moved from Wichita to Oklahoma City in I would try to do it in Oklahoma some day and 1982 to attend Oklahoma City University kept the materials. School of Law. I didn’t know any lesbian, gay, Fast forward to 1995. I was working in the bisexual and transgender (LGBT) people in Federal Courthouse in Oklahoma City on April Oklahoma City except my long-term partner. 19, 1995. THE BOMBING. It gave me a whole Because we had gone from having two good- new perspective on things. I decided that paying jobs to one, we felt quite poor. We lived “someday” was “now.” Even with the bomb- in a mobile home in Midwest City and to save ing pushing me forward, I was still quite afraid gas we rode together to her work and my to do it. By then I had been practicing for 10 school, meaning that I was on campus from years and had made many friends in the legal 7:45 a.m. to 5:15 p.m. nearly every day. As a community. Long story short, I talked one-on- result, I spent more time than most in the law one with probably 20 or more attorneys and library. Rummaging around in the stacks one judges about my desire to start an LGBT group. day, I happened upon a pile of law-related Some responses were positive, a few were nega- newspapers. The issue on top caught my eye. tive, but most ran along the line of “Are you The headline mentioned, “Gay Attorney Bill crazy? Do you realize what you are doing?” Rogers from OKC.” I was so glad to learn there was at least one gay attorney in Oklahoma Five other brave LGBT attorneys, myself, City. I wanted to meet him. However, at that and one LGBT-friendly attorney became the time it was not acceptable to be a gay attorney board of the Oklahoma Lesbian and Gay Law in Oklahoma, so I kept that thought to myself Association. They elected me president (sur- and didn’t meet him until years later. prise!). The purpose was to educate the legal community about LGBT issues. Our first big During my 1L year in law school, someone project was to sponsor a CLE that we hoped posted a notice on the bulletin board about the would become an annual event. We each talked National Women’s Law Conference in Los to our own friends and wound up with approx- Angeles in the spring. With advice from a kind imately 40 paying lawyers/judges as members professor, I requested and received a small sti- of the group. You all know who you are. We pend from the law school student board and held our Oklahoma City grand opening at the attended the conference. What an eye opener it Waterford Hotel, attended by some 60 law- was! One of the sessions was about starting an yers/judges. We also held a grand opening in LGBT group in our home states. I decided that Tulsa.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1081 Our keynote speaker in Oklahoma City was our grand opening and put a picture of the Jay Novick, former chief assistant to Janet Reno board on the front page. in Florida and co-chair of the National Lesbian We heard from local LGBT lawyers who were and Gay Law Association. He was very excited so closeted that none of us on the board were about a LGBT group being formed in a state aware of them. We published three quarterly like Oklahoma. Leigh Jones, legal beat reporter newsletters, and we received congratulatory for the Journal Record, wanted to interview me letters from folks in other states. We were on about the formation of the group. However, I top of the world. We were doing a good thing was too apprehensive to do it, so she inter- and had been much more widely accepted than viewed Mr. Novick instead. I sat next to him we ever dreamed. and listened so I could learn how to be interviewed. Ms. Jones wrote a nice article about us The fun didn’t last very long though, and we for the Journal Record. The Oklahoma Bar Journal never got to put on that first CLE. printed a four-paragraph announcement of our formation and upcoming grand opening. I was a federal employee at the time. My The Tulsa Family News published an article employer requested an ethics opinion from the announcing the formation of our group. The Judicial Conference of the United States Com- Gayly Oklahoman (not to be confused with the mittee on Codes of Conduct about my associa- Daily Oklahoman) published a nice article about tion with the group and an interview of me by

Author’s Note: In the summer of 1998, represented in the ABA House of and I picked up the packet of mate- Crowe & Dunlevy partner Jimmy Good- Delegates. rials on “how to start a chapter in man interviewed me about the forma- your state.” I probably still have it OLGLA is a statewide professional tion of the Oklahoma Lesbian and Gay somewhere. I read it when I got Lawyers Association for publication in organization created by and for back home and just wondered if the Oklahoma County Bar Association attorneys who are interested in anything like that would ever be pos- legal newspaper, The Briefcase. I refer obtaining a greater knowledge of sible in Oklahoma. to it as “The Interview That Wasn’t” the unique issues affecting gays because before it could be submitted and lesbians, and in supporting Then, through the years, from for publication, the Judicial Conference efforts to dispel negative stereo- time to time the idea would pop of the United States Committee on Codes of Conduct issued its private types, developing acceptance, back up in my head. When I saw opinion that publicizing the interview understanding and respect in their announcements and pictures in the would violate the federal judicial codes place. bar journal about the Oklahoma City Association of Black Lawyers, I of conduct. I am thrilled that now, 16 The following interview with Jane years later, long after I resigned from dreamed that someday there would my federal job, the Oklahoma Bar Jour- Eulberg, president of OLGLA, was be an announcement about a les- nal is publishing it. As my article states, conducted by Jimmy Goodman. bian and gay law association in the the Oklahoma association no longer Where did the idea come from to bar journal. The same thing hap- exists, but the interview provides addi- start OLGLA? pened when I saw announcements tional insight into this area of diversity. and pictures in the bar journal about It was a long, and slow, progres- the Oklahoma Indian Bar Associa- New Organization Formed sion. It started in 1984. I was in law to Address tion and about the women lawyers’ school and was the president of the groups. I kept thinking, if they can do Lesbian/Gay Issues women law students’ organization. it, so can we — maybe sometime. Someone had posted a brochure Several Oklahoma attorneys have on the bulletin board at school In 1994 a friend on the law fac- formed a professional organization about the National Women in Law ulty at the University of New Mexico, to address lesbian and gay legal Conference being held in Los Ange- Gloria Valencia Weber, sent me a and social issues. The Oklahoma les that year. One of the faculty brochure about a CLE being offered Lesbian and Gay Law Association members and I attended the con- in Albuquerque on issues affecting (OLGLA) joins the 31 other profes- ference. It was so exciting. There lesbians and gay men and their sional associations already char- were hundreds of women lawyers, families. It was cosponsored by the tered throughout the United States judges and law professors — a wide New Mexico Bar Association Family with similar goals. OLGLA is affiliat- variety of panel discussions and lec- Law and the National Lesbian and ed with the National Lesbian and tures. One of the sessions was about Gay Law Association. I attended it Gay Law Association, an entity lesbian and gay law associations, and came back tremendously

1082 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Jimmy Goodman that was to be published in the Oklahoma County Briefcase. My hope is that it keeps The opinion was negative and, in short, stated that I could not allow the interview to be getting easier and that soon being published and that I had to resign from the an LGBT judge or attorney or group or lose my job. staff member in Oklahoma is I tearfully resigned from the group, and it sort of faded away. None of the other board a non-issue. members had the exaggerated passion that I had about the group and its mission. One of my greatest regrets is that in 1998 I did not stand my ground and resign from my ron Alliance Foundation, and I served with federal job instead of resigning from the him on the board of that organization for sev- group. eral years. He probably did more to educate others about LGBT issues than our group Back to Bill Rogers. He became one of my would have ever been able to do. When I finest mentors. He died a few years ago, but finally got to meet him, he told me his story what a legend he was. He founded the Cimar- about being a gay lawyer in Oklahoma in the

impressed. Their speakers included 1997. Board member Kerry Lewis There is an article in the May 1998 nationally known litigators as well as was instrumental in organizing the issue of Ladies’ Home Journal by a local practitioners. When I came Tulsa event. We developed a quar- mother whose gay teenage son back home, I dreamed about the terly newsletter (now edited by Ken committed suicide. The article is possibility of doing something like Upton). We will be creating a web- titled “My Son Didn’t Have to Die.” that in Oklahoma. page. We chose Scott Braden as The mother says she will never know our liaison to the law schools. We why he did it, but she does know he I was in the federal courthouse on have started many projects that are felt depressed, ashamed, torment- April 19, 1995, when the Murrah successful because our members ed by his peers and unable to Building was bombed. That had a do great work. accept himself — “all because he profound effect on me, as it did on was gay.” At the end of her article, everyone in Oklahoma City and What are the goals of OLGLA? she says, “I wish more homosexual beyond. But one day, about a year adults would come out publicly, and a half later, I was thinking about Our mission statement is “to pro- because gay kids need positive role the bombing and about how uncer- mote equality in and through the models.” tain life is, and I was feeling down legal profession and society. because I felt I hadn’t really done Through change in our legal and I regret that Robbie never heard anything with my life, and my mind social structure we can eliminate Ellen DeGeneres’s speech after she was just wandering — and it just discrimination against members of won an Emmy award last fall for the popped up again — the idea of the lesbian and gay community.” coming-out episode of her sitcom, having a lesbian and gay law asso- The goals listed in our brochure/ Ellen. She specifically addressed ciation in Oklahoma. That is when I membership application are to pro- gay teens, saying “Don’t ever let decided that, if others would help vide “a resource base to address anybody make you feel ashamed me, it was time to do it. issues that affect the lesbian and of who you are.” gay community, a referral source I am delighted to report that for legal representation, continuing People have inquired if you will many others, practitioners in public legal education programs for the be trying to promote some as well as private law, most of legal community, legal expertise “homosexual agenda” within the whom need to remain unnamed, through briefs, memoranda and bar? were ready, willing and able to reference guides on issues that You’ll have to define what you help. We, the steering committee, affect the lesbian and gay com- mean by “homosexual agenda” worked long and hard to get the munity, and a resource base for before I can answer this one. If you group organized. We held our open- lesbian and gay law students.” My mean providing positive, profes- ing kickoff/membership drive at the overarching goal for OLGLA is sim- sional role models within and out- Waterford Hotel in Oklahoma City in ply to make us visible to the entire side the legal community, the June 1997 and at the Doubletree legal community, so as to dispel answer is yes. If you mean sensitiz- Downtown in Tulsa in November stereotypes about who we are.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1083 years before I went to law school. It was easier homa City. I watched that parade while hiding for me than it was for him. behind a large tree. Now the Oklahoma Bar Association and many law firms have their My hope is that it keeps getting easier and own diversity committees that include sexual that soon being an LGBT judge or attorney or orientation. staff member in Oklahoma is a non-issue. THE FUTURE IN OKLAHOMA? When I told retired Professor Nancy Kender- dine I was writing this article, her comment Recently I had the opportunity to meet sev- was, “The atmosphere here re gays reminds me eral LGBT and straight law students from OU of when I graduated from OU and a job notice and OCU. Their attitudes about LGBT issues on the bulletin board said, ‘Only people who are so refreshing – total acceptance without can grow beards need apply’ and you can giving it a second thought. A few months ago I quote me on that!” talked with the Diversity Committee chair at Phillips Murrah. That firm’s pride in having But things have improved a lot. You cannot out-LGBT attorneys is well deserved. Undoubt- imagine how pleased I am at the pace of accep- edly the same is true at other firms. I predict tance in the Oklahoma legal community. Back there will soon be an LGBT bar association in in the 1980s, Bill Rogers lost his job after he Oklahoma, affiliated with the Oklahoma Bar marched in the first Gay Pride Parade in Okla- Association. I think a judge or two will soon

ing the legal community to issues OLGLA permits its members to agree on all issues, but we all have affecting lesbian and gay clients, remain anonymous. Why do you similar goals for the organization. the answer is yes. If you mean help- still need that? ing to overcome ignorance, preju- Why is the business of OLGLA As one of our members said, dice, misunderstandings and atti- important to other members of “You’re darned if you do, and you’re tudes harmful to people in our pro- the bar? darned if you don’t.” If you speak fession, the answer is yes. If you out, you get blasted for promoting The legal profession improves mean working for justice, compas- the “homosexual agenda.” If you when all its members live life as fully sion, respect and understanding for stay in the closet, you get blasted as possible and contribute their full gay people who suffer as victims for “being ashamed of something.” potential to the pursuit of justice. As who deserve representation, the In fact, many lesbian and gay attor- OLGLA works to diminish prejudice answer is yes. neys feel they need to remain and promote understanding, other Why did gay and lesbian lawyers anonymous so they are not dis- attorneys are better sensitized to decide to form their own organiza- criminated against within their own serve the gay and lesbian entrepre- tion? Some lawyers have said to firms or by others in the legal com- neurs and their families and friends me, “Can’t they do what they munity. Hopefully, through the efforts who need legal help, such as CPAs, want to by just being good law- of organizations like OLGLA, the next business owners, physicians, nurses, yers who are gay?” generation of lawyers won’t have to teachers and real estate develop- have that fear. One of the biggest ers. Lesbians and gays and their It is important to honor diversity problems of being gay is not gay- families and friends need corporate and celebrate the gifts that people ness but the reaction of heterosexu- lawyers, tax lawyers, real estate law- who are different bring to the norm als to it. yers, estate planning lawyers and — by having different groups of litigators. lawyers such as black lawyers, Who are the members of OLGLA? Native Americans, women lawyers, How do you see OLGLA making We are Republicans, Democrats the Federalist Society, trial lawyers, things better for gay and lesbian and Independents; black and white; the criminal defense group, title people in Oklahoma? lesbians, gays and heterosexuals; lawyers group, the judges group, litigators, transactional lawyers, The answer to this is essentially etc. We recognize the unique con- judges, partners at large firms, found in the answers to the ques- tributions each lawyer makes to the medium size firms, small firms; asso- tions you have already asked — visi- wholeness of the legal world. Groups ciates, solo practitioners and gov- bility, promoting understanding like OLGLA address particular legal ernment lawyers. We live in the through education, addressing legal issues that affect its constituencies. Oklahoma City area, the Tulsa area issues that affect the lesbian and gay and in rural Oklahoma. We don’t community, trying to make the state a little kinder and more tolerant.

1084 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 come out. If they have not already, I think all 4) Help start an LGBT bar association in the LGBT law professors will come out. And, Oklahoma and get it affiliated with the finally, if the Judicial Conference of the United OBA and with the ABA. States Committee on Codes of Conduct was 5) If you are an LGBT judge, attorney or staff asked the same questions today that it was member and if you can, come out. I think asked in 1998, I think its answers would be dif- you will be pleasantly surprised at the ferent. The future is as bright as the Oklahoma acceptance of your peers. sun in August. IDEAS TO INCREASE ACCEPTANCE Here are a few ideas for those interested in About The Author furthering the acceptance of LGBT issues in the legal community: Jane Eulberg received her 1) Invite a local LGBT lawyer/judge to pres- undergraduate degree magna cum ent a session for all your attorneys and staff laude in mathematics and com- members – a training/awakening session puter science at UCO in Edmond of sorts. Make attendance mandatory. in 1971 and J.D. with highest honors from OCU School of Law 2) Support your alma mater’s LGBT student in 1985. From 1971-1982 she law association. worked in IT for Pizza Hut Inc. in 3) As a firm or an individual, join one of the Wichita, Kan. In additon to private practice for John national associations. One umbrella orga- W. Norman Inc.; Edwards, Sonders & Propester; and nization is the National LGBT Bar Asso- Phillips Murrah, she clerked for two federal district ciation, an affiliate of the ABA. Its website judges, and for Oklahoma Supreme Court Justice is www.lgbtbar.org. Daniel Boudreau. She retired in 2004.

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1085 1086 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Diversity in the LAW

Lessons from the Field: My Life-Changing Law Practice as an Air Force JAG By Katie Illingworth

hen I walked off the C-130, exhausted, loaded with flak vest and helmet, blinked into the bright mountain sun Wand looked out over the stark beauty of the Hindu Kush mountains, I marveled at the turns my life had taken that had landed me literally in the middle of the war in Afghanistan.

The “diversity” theme of this month’s Okla- and my love of debate. It turns out I was cor- homa Bar Journal intrigued me. There are count- rect, as I loved law school (as much as one can less different contexts around and meanings to love law school). In my second year, I began to the word “diversity.” There is diversity of cul- consider what path in the law I would choose ture, race, gender, viewpoints and experience, to practice in. During that same year, a ques- just to name a few. For attorneys, diversity can tion started popping up in all my conversa- mean diversity of practice, which perfectly tions at school—“What are you going to specialize sums up the beginning of my legal career as an in?” I felt as if I barely knew enough about the Air Force judge advocate (JAG). law at that point to really specialize in anything, and was often perplexed by the ques- Like many of us, the events of Sept. 11, 2001, tion. For me, because there were so many areas deeply affected me. I remember standing in my of the law I enjoyed, including contracts, labor college apartment that morning at OU, watch- law, criminal law and procedure, constitutional ing the live images on my television screen of law, trusts and estates and others, it felt like I planes slamming into the twin towers as deep shouldn’t have to just pick one or two areas of grey smoke billowed forth from the points of specialization. impact. I was shaken to my core, and the world as I knew it felt darker and more disordered I knew there was really one choice for me out than I had ever known before. The events of of law school, as I contemplated my desire to that day changed me, and began a long period serve and my love for so many areas of the law of reflection as I tried to decide how I was — I decided to be a JAG. When I told my fam- going to contribute to the world after having ily, to say they were shocked is putting it this experience as part of my history. mildly, as I don’t think anyone would peg me the “outdoorsy” type. When I told my father I Two years later, I moved to Washington, D.C. was joining the military, it was like a scene for law school. I was drawn to the national from a movie as I watched the humor, then political scene, and knew a legal career would concern, pass across his face as he realized I fit well with my interest in problem-solving was not joking. I think the entire family was

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1087 afraid I wouldn’t even survive officer training school, and if I look back now, I was a little afraid myself. I began to realize that in So I applied, interviewed with a full bird choosing to become a JAG, I had colonel at Andrews Air Force Base, and was chosen not just a particular legal accepted (contingent upon bar passage), following a military tradition in my family that includes career path, but a way of life. a Lady Marine grandmother, a Marine grandfather who served in World War II, and another grandfather who flew as a bomber pilot for the Another pull for me towards choosing JAG Army Air Corps in WWII. So I set to work that was the way the JAG Corps views trial prac- summer, following a highly regimented sched- tice. When I first interviewed, the colonel told ule of intense running and other physical train- me to expect to first chair at least one trial ing in preparation for officer training school within my first four years of practice. Well, alternating with my bar studies. within two weeks of my arrival to Hickam as a A few months later, during the week of first lieutenant, I was handed my first criminal Thanksgiving, I had passed the bar, had passed case file to review for potential charging and Officer Training School with flying colors and prosecution. It was a drug case, specifically received the phone call that I was on my way cocaine use and distribution, involving an air- to my first assignment — in Hawaii! When I man first class who was a repeat offender involved in Oahu’s drug scene. The facts of the drove through the front gates for the first time case were especially aggravating because he of the 15th Airlift Wing at Hickam Air Force was an aircraft maintainer on Hickam’s F-15 Base, Hawaii, a base whose old buildings still fighter jets. It was an obvious point that the bear gunpowder scars from the attack on Pearl safety and integrity of the aircraft at our airlift Harbor on Dec. 7, 1941, I knew I had become base directly depended on the skill and atten- part of living history. I loved it. I thrived. I ran tion of the maintainers. every morning along Pearl Harbor, watching the submarines float in, and thanked my lucky From the first day I was handed the case file, stars for such an opportunity. two senior captains at my legal office mentored me, taught me how to organize my case, I began to realize that in choosing to become assemble my trial brief, handle evidence and a JAG, I had chosen not just a particular legal talk to a jury. We held multiple “murder career path, but a way of life. The Air Force boards,” as I rewrote my opening statement Officer Training and JAG school cadre had and closing argument over a dozen times. The already drummed into my head that I was an group of seven attorneys in my office critiqued officer first, a lawyer second. Despite my luck me, my delivery, my words, my posture, even and good fortune at living in Hawaii, along the looks that flickered across my face in response with the commitment came hardships. My to panel members’ answers during a mock voir husband (a fellow JAG) and I were separated dire. I learned how to develop a proof analysis, a from each other for nearly two years of mar- thorough examination of the elements of proof riage. He deployed two weeks after we were required for a charge and the corresponding evi- married in support of Operation Iraqi Free- dence for each element. This key document dom, and I deployed within a month of his became the cornerstone of my future trials and return. I didn’t come home for two Christmases my own experiences in mentoring younger pros- in a row, one of which I spent in harm’s way. But ecutors, and is a lesson I consider one of the even though I endured hardship and sacrifice as most valuable I have learned as an attorney to part of this JAG life I had chosen, I also knew I date. The level of training and attention to detail, was part of something bigger than myself and I the strategic case brainstorming and the camara- had the opportunity to practice alongside incred- derie all honed my skills as an advocate and as ibly gifted and talented attorneys who were not a counselor. only top notch practitioners, but lived and As soon as I had gotten comfortable in my embodied values of integrity, honor and sacri- job at Hickam and had made a habit of spend- fice, values so often dismissed in today’s society ing every Saturday morning on Oahu’s beauti- as outdated and overly idealistic. ful beaches, my world changed. My colonel

1088 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 walked into my office on a quiet Friday after- affected by my ability to “think outside the noon, sat down, looked across the desk and box” and seek out legal and feasible alterna- smiled at me. I smiled nervously back and tives when various contract and fiscal law asked, “What’s going on?” She replied, “You’ve issues held up a contract. On top of these prac- been chosen by higher command to go to the tice challenges, I was also forced to face my mountains and review some contracts.” Moun- mortality as I experienced all manner of dan- tains? Contracts? The confusion must have gers, from earthquakes and sandstorms to Tali- been all over my face because she continued, ban rocket attacks, on a routine basis. “When I say mountains, I mean the Hindu These few experiences represent a small frac- Kush. In Afghanistan. And when I say contracts, tion of my life and experiences as a JAG. I fin- I mean Army contracts.” ished my Air Force tour out at Peterson Air If I had thought I was in for an adventure in Force Base in Colorado Springs, a “space base” Hawaii, it was nothing compared to the half that was part of Air Force Space Command. year I was about to spend at Bagram Airbase in There, as chief of military justice, I oversaw all Afghanistan. As I was soon to learn, I had been criminal trials at my office, including cases tasked as an Air Force asset embedded into the involving theft, sexual assault and even a cou- headquarters of Combined Joint Task Force ple of child pornography cases. Throughout my (CJTF)-82. Run by the renowned 82nd Airborne JAG tour, I also provided legal assistance to of the U.S. Army, CJTF-82’s mission in Afghan- military members, their families and veterans, istan was as command over RC-East, a large advising on and assisting with family law geographic area in the country to the north and issues, estate planning, bankruptcy, consumer east. I was one of a few Air Force officers cho- debt as well as several situations involving the sen to work inside of the command alongside application of such laws as Uniformed Service our Army comrades, as well as various mili- Employment and Reemployment Rights Act, tary personnel stationed there from all over the Servicemembers Civil Relief Act and the Fair world. Although my job description had noth- Debt Collection Practices Act, among others. ing to do with my duties as a JAG in Hawaii, I Then there were all the job “perks,” includ- began to understand that this type of flexibility ing riding in military aircraft, singing the as a practitioner was par for the course in my national anthem for an immigration ceremony JAG career. To prepare myself, I attended an in Afghanistan that welcomed soldiers into intense training course to hone my skills in U.S. citizenship, being intimately involved in government contracts. humanitarian efforts for local Afghan children, Once I arrived in theater, I was one of three a stint as a special assistant U.S. attorney in attorneys tasked with the legal review of every Hawaii, and so many more. This is just one Army contract that affected RC-East. There I picture of what diversity of practice can mean moved away from my former prosecutorial for a legal practitioner, and who knew diversity role and was knee deep in contract negotia- of practice could be so interesting and so fun? tions and fiscal law. Some of these contract negotiations involved negotiations with local About The Author Afghans, which meant various crash courses in cultural and gender sensitivities in preparation Katie Illingworth has practiced for discussions with locals. law since 2007 and was admitted to the Oklahoma bar in 2013. Another key part of my job there was to help She spent four years as an Air problem solve if a contract as originally written Force judge advocate, six months hit some legal snags. If my analysis was that a of which she was deployed in sup- contract was legally deficient in some way, it port of Operation Enduring Free- was expected that I would find an alternative dom in Afghanistan. Ms. Illing- that was legally sufficient and also fulfilled the worth currently practices as associate general counsel at mission requirement. I had been trained to be First Financial Network Inc., a 25-year financial services that type of attorney as an Air Force JAG, and firm headquartered in Oklahoma City. I understood the success of the mission was

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1089 1090 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Diversity in the LAW Avoiding Disparate Impacts in Background Checks of Potential Employees By Ruth J. Addison any hiring decisions require the use of background checks. Since most employees have access to sensitive Minformation held by their employers or work in regulated industries or interact with the public, background checks may be necessary to avoid negligent hiring. Every employer’s worst nightmare is a bad hire. Therefore, it is in the employer’s best interest to investigate an applicant’s background before making an offer of employment. A bad hire is an employee that the employer has invested time and effort into, but is incompatible with the employer. A bad hire can negatively influence other employees’ attitudes and office morale. Hence, employers should take precautions to protect themselves not only from a bad decision, but also from future litigation by providing and requesting certain information during the application process. These include, but are not limited to, equal employment opportunity statements, an at-will employment disclaimer, an I-9 employment eligibility verification that acts as proof the applicant can lawfully work in the United States and background checks. One of the primary concerns with back- Since racially diverse people are arrested and ground checks is that it may reveal criminal convicted at a higher rate than the majority, it history of an applicant that has no bearing on may prejudice racially diverse applicants from the position in which the applicant applied. obtaining gainful employment. If criminal his- For example, an applicant with a misdemeanor tory is revealed, the employer should be very driving-under-the-influence conviction should fair, cautious and meticulous in its approach. not automatically be disqualified from a posi- Failure to do so may create a “disparate impact” tion that does not involve driving, such as claim and an Equal Employment Opportunity housekeeping or janitorial service work. Commission (EEOC) charge of discrimination. In Oklahoma, employers are required to include

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1091 language in employment applications that says a four- step process for conducting an appro- a conviction does not necessarily disqualify him priate background check. or her from employment.1 Employers also must The Investigative Process: Four Basic Steps include language that advises the applicant that they do not need to disclose expungements.2 The first step deals with what the Credit Reporting Agency (CRA) can disclose to the This article will help guide employers, in employer. Specifically, the CRA may only sup- Oklahoma, through the steps to properly con- ply a consumer report if the employer certifies duct background checks and avoid discrimina- it will use the information only for a “permis- tion claims. sible purpose,” it will not use the information WHY EMPLOYERS SHOULD UTILIZE in violation of federal or state equal opportu- BACKGROUND CHECKS nity law, it will notify the applicant that the While it is not always practical to conduct report is being requested, it will obtain the background checks, they do help employers: 1) required consent, it will give required notices if verify applicants for employment in sensitive a decision not to hire is made based on the positions; 2) determine if the applicant is suit- report, and, in the event an “investigative consumer report” is requested, it will give the able and qualified for the desired position; 3) 9 determine if they have made the right hiring additional disclosures. decision; and 4) help avoid unwanted work- The second step is to advise the applicant place scenarios, conflict, violence and negligent that a consumer report is being requested, that hiring claims.3 Additionally for some regulated the information may be used for hiring deci- businesses and industries, the employers must sions and obtain the applicant’s written per- conduct background checks. For example, due mission. Under Oklahoma law, an employer to the sensitive nature of the job, the following must provide a box for the applicant to check if classes of employers are required, under Okla- he or she wants a copy of the report sent to homa and federal law, to perform pre-employ- them contemporaneously (at no charge to the ment background checks: applicant). 1. Healthcare If also requesting an “investigative consumer 2. Childcare report,” then the employer must advise the applicant. The applicant must receive this dis- 3. Detention facilities closure within three days after the request, unless it was part of the initial disclosure.10 The 4. Motor carriers employer must alert the applicant of the right 5. Facilities under government contracts4 to make a written request of details of the scope of the investigation as well as provide a RULES GOVERNING BACKGROUND CHECKS copy of the document titled “A Summary of Your Rights Under the Fair Credit Reporting Background checks may or may not include Act.”11 If the applicant makes a written request consumer reports subject to the Fair Credit for details of the scope of the investigation, the Reporting Act (FCRA).5 If the employer is employer must provide that information with- requesting information from a third-party, in five business days.12 more likely than not, the third-party will be The third step considered a Credit Reporting Agency (CRA).6 is triggered if the employer If the employer is conducting its own indepen- decides to reject the applicant based on the dent background check on websites like OSCN information contained in the report. In that or ODCR, then the FCRA will not apply, but case, the employer must provide the applicant the employer is still obligated to advise the with both a copy of the consumer report and a applicant and obtain written consent.7 copy of the summary of rights publication. In 1990, the EEOC issued a report titled The fourth step arises once the applicant is “Guidance on the Consideration of Arrest and rejected. Once formally rejected, the employer Conviction Records in Employment Decisions” must provide the applicant with a “Notice of which serves as an authority for enforcement Adverse Action.” That Notice must provide of the FCRA, governed by the Consumer the contact information for the CRA that sup- Financial Protection Bureau (CFPB).8 It outlines plied the consumer report, a statement that the CRA did not make the decision and cannot

1092 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 give any specific reasons for it, and disclosures about the right to dispute the accuracy or com- pleteness of the report and to get an additional In short, employers must treat report for free within 60 days upon request.13 everyone equally and fairly. Post Investigation: What Kind of Information Is Included in the Consumer Report Background checks generally include, but candidates will not be able to obtain gainful are not limited to, driving records, vehicle reg- employment. As a result, the EEOC has recog- istrations, credit records, criminal records, nized the potential discriminatory impact of Social Security numbers, education records, background checks for diverse applicants.22 court records, bankruptcy records, state licensing records, military records and the names of Disputes arise when an applicant or current past employers. Employers should not consid- employee challenges the employer’s employer the following eight items in their hiring ment practices alleging that he or she suffered age, race, ethnicity or sex discrimination due to considerations: 1) bankruptcies after 10 years; 23 2) civil suits; 3) civil judgments; 4) records of disparate impact. “A disparate impact viola- arrest, from date of entry, after seven years; 5) tion is established when an employer is shown paid tax liens after seven years; 7) accounts to have used a specific employment practice, placed for collection after seven years; and 8) neutral on its face but causing a substantial any other negative information (except crimi- adverse impact on a protected group, and 14 which cannot be justified as serving a legiti- nal convictions) after seven years. Addition- 24 ally, employers should not base their decision mate business goal of the employer.” In other not to hire an applicant solely on arrest records.15 words, a practice by an employer that is facial- Arrest records are unreliable because they do ly neutral, but has the effect of harming a pro- 16 tected class is deemed discrimination. Proof of not prove that the applicant was convicted. 25 Hence, the EEOC has determined that employ- intentional discrimination is not required. ers must make an additional inquiry.17 How to Establish a Prima Facie Case What Employers Should Not Do With the Report In order to maintain a disparate impact Once an employer has had an opportunity to claim, an applicant or existing employee must review the consumer report or criminal back- show three things. First, “a specific identifiable ground check, it must weigh the information, employment practice or policy caused a significant disparate impact on a protected while simultaneously recognizing that the Civil 26 Rights Act makes it unlawful to discriminate group.” If shown, then second, “the burden based on gender, race, nationality, religion or shifts to defendant [employer] to show that the challenged practice is job related and consis- belief, age, physical or mental disabilities and/ 27 or genetic background.18 In short, employers tent with business necessity. Third, if the must treat everyone equally and fairly. employer is successful, “the plaintiff is then required to suggest an alternative employment DISPARATE IMPACT practice that serves the employer’s legitimate employment goals yet lacks the undesirable Pre-employment criminal background checks 28 generally exclude more racially diverse appli- discriminatory effect.” cants than non-diverse applicants from employ- The EEOC’s position is that disparate impact ment. “African Americans now constitute may exist when less than 80 percent percent of nearly 1 million of the total 2.3 million incarcer- racially diverse applicants are unable to obtain ated population.”19 “From 1980 to 2008, the employment in a particular industry.29 For number of people incarcerated in America example, in “November 2010, a Chicago janito- quadrupled-from roughly 500,000 to 2.3 mil- rial services provider agreed to pay $3 million lion people.”20 In fact,”if African American[s] to approximately 550 rejected black job appli- and Hispanics were incarcerated at the same cants under a four-year consent decree, settling rates of whites, today’s prison and jail popula- the EEOC’s allegations of race and national tions would decline by approximately 50 origin discrimination in recruitment and hir- percent.”21 Since, racial minorities are overrep- ing. The EEOC had alleged that the provider resented in the criminal justice system; the had recruited through media directed at East- result is that a staggering number of diverse ern European immigrants and Hispanics and

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1093 hired people from those groups over African impossible to know who will apply for a par- Americans, and that the provider’s use of sub- ticular position, employers should not create jective decision making had a disparate impact rules that effectively excludes applicants with on African Americans. As part of the decree, criminal histories. Employers should consider the provider also agreed to extensive changes each application fairly and without prejudice. in its employment policies, to engage in “active recruitment” of African American employees, 1. See 22 O.S. §19(F); 63 O.S. §2-410. 2. Id. to hire previously rejected black applicants, to 3. See Hutchinson v. City of Okla. City, 919 F. Supp. 2d 1163, 1184 implement training on discrimination and (W.D. Okla. 2013) (“Oklahoma law recognizes the tort of negligent hiring and retention. An employer will be held liable if, at the time of the retaliation, and to hire an outside monitor to tortious incident, the employer had reason to believe that the [tortfea- review compliance with the decree.”30 sor-employee] would create an undue risk of harm to others.”). 4. See 10 O.S. §404.1; 56 O.S. §1025.2. In short, applicants must prove that the chal- 5. See 15 U.S.C. §1681 et. seq.; Background checks can be included in consumer reports. Consumer reports are defined as “any written, lenged employment standard selects employ- oral, or other communication of any information by a consumer ees in a substantially different manner from reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal char- that of protected classes using statistical evi- acteristics, or mode of living which is used or expected to be used or dence of adverse impact on racially diverse collected in whole or in part for the purpose of serving as a factor in 31 establishing the consumer’s eligibility for . . . employment purposes applicants. ….” Id. at 1681a(d)(1). 6. See Id. at (f). (A Consumer Reporting Agency “means any person How to Establish a Business Necessity which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or Employers must show that the denial was evaluating consumer credit information or other information on con- consistent with the standard for “business sumers for the purpose of furnishing consumer reports to third parties, 32 and which uses any means or facility of interstate commerce for the necessity.” This standard is satisfied if the purpose of preparing or furnishing consumer reports.”). employer is able to consider and prove that the 7. See www.oscn.net; www1.odcr.com. 8. Guidance on the Consideration of Arrest and Conviction following factors influence the job position: Records in Employment Decisions, www.eeoc.gov/policy/docs/ arrest_records.html (last visited May 5, 2014); see also Pre- Employment 1. The nature and gravity of the offense(s) Inquires and Arrest & Conviction, www.eeoc.gov/laws/practices/ inquiries_arrest_conviction.cfm (last visited May 5, 2014). 2. The bearing, if any, of the offense(s) on 9. See 15 U.S.C. §1681 et. seq.; Background checks can be included any specific responsibilities in consumer reports. Consumer reports are defined as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, 3. The time lapse since the date of the credit capacity, character, general reputation, personal characteristics, or offense mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the con- 4. The age of the applicant at the time of the sumer’s eligibility for … employment purposes….” 10. Id. at 1681a(d)(1). 10 Id. at §1681 et. seq. offense 11. Id. 12. Id. 5. Evidence of rehabilitation 13. Id. 14. These rules are Oklahoma specific. Each state will have its For example, an applicant that has a child own guidelines and considerations. See Employment Background endangerment conviction for failing to buckle Check Guidelines, Business Management Daily, www.hiresafe.com/ Employment_Background_Check_Guidelines.pdf (Last visited May a child in a car seat should not mechanically be 5, 2014); see also Pre-Employment Inquiries and Arrest & Conviction, barred from obtaining a position that does not www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm (last visited May 5, 2014); see also Consideration of Arrest and Conviction put them in a position to involve or engage Records in Employment Decisions Under Title VII of the Civil Rights minor children, like working in a file room fil- Act of 1964, EEOC Enforcement Guidelines, supra. 15. Id. ing or shredding documents or even stocking 16. Id. 33 supplies. 17. Id. 18. See 42 U.S.C. §2000(e)). HOW BEST TO AVOID A DISPARATE 19. See Criminal Justice Fact Sheet, National Association for the IMPACT CLAIM Advancement of Colored People, Incarceration Trends in America, www. naacp.org/pages/criminal-justice-fact-sheet (Last visited May 5, 2014). 20. Id. Despite the strict procedural requirements, 21. Id. background checks remain one of the best 22. Id. avenues to preparing a defense to negligent 23. These claims often arise due to a failure to hire claim based on allegations of discrimination related to age, race, disability, and sex. See hiring claims. Employers must take great care 42 U.S.C. §2000e-2(k); see also Meeting of Feb. 16, 2011- EEOC to Exam- to be proactive and develop non-discriminato- ine Treatment of Unemployed Job Seekers, Written Testimony of James S. Urban, Partner, Jones Day, www.eeoc.gov/eeoc/meetings/2-16-11/ ry and unbiased practices and methods to hire urban.cfm (last visited May 5, 2014); see also Women Are Getting Even, qualified applicants. However, employers need Disparate Impact Claims, www.wageproject.org/files/mo_impact. php (Last visited May 5, 2014). to be cognizant of their industry and the types 24. See Ricci v. DeStefano 557 U.S. 557, 576- 578 (2009). of applications they may receive. Since it is 25. See Griggs v. Duke Power, 401 U.S. 424 (1971).

1094 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 26. Voltz v. Coca-Cola Enterprises Inc., 91 F.App’x 63, 73 (10th Cir. a motion to dismiss was filed. The court denied the motion and held 2004); See Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006) that the former employees stated a plausible cause of action because (“[A] plaintiff may establish a prima facie case of disparate impact the employer’s employment practice did not measure aptitude, the discrimination by showing that a specific identifiable employment time lapse since the date of the offense or evidence of rehabilitation. practice or policy caused a significant disparate impact on a protected Instead, the policy acted as a complete bar to employment if the appli- group.”) (internal citations omitted). cant had criminal history.) 27. Id. at Voltz, supra. 28. Id. (internal citations omitted); see also Ricci, supra at 578. (“Even if the employer meets that [business necessity] burden, however, a plaintiff may still succeed by showing that the employer refuses to About The Author adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.”). 29. EEOC “Uniform Guidelines on Employee Selection Proce- Ruth Addison is a trial lawyer dures” 29 C.F.R. §1607.4 (D) http://goo.gl/Ld8AsL (Last visited May 5, 2014). with McAfee & Taft. Her practice 30. See Scrub, Inc., to Pay $3 Million to Settle EEOC Racial Dis- focuses on labor and employment crimination Suit (EEOC v. Scrub Inc., No. 09 C 4228 (N.D. Ill. consent and litigation. She is chair of the decree entered Nov. 9, 2010) www.eeoc.gov/eeoc/newsroom/ release/11-9-10c.cfm (last visited May 5, 2014). OBA Diversity Committee. In 31. See Drake v. City of Fort Collins, 927 F.2d 1156 (10th Cir. 1991) 2012, the Tulsa County Bar Asso- (Plaintiff filed suit against the city and police department because of a two-year college requirement. The court found that plaintiff failed to ciation honored her with a Presi- establish a disparate impact claim because while 12.5 percent of Afri- dent’s Award for her leadership as can Americans were rejected, 18 percent of Caucasians were also rejected. Hence, the plaintiff was unable to show a statistical evidence chair of its Diversity Development of discrimination.) Committee, which was recognized for its efforts in 32. Voltz, supra. developing a program to educate high school students 33. See Waldon v. Cincinnati Pub. Sch., 941 F. Supp. 2d 884, 889 (S.D. Ohio 2013), motion to certify appeal denied (May 28, 2013)(A state law about legal careers that are often under-represented by required background checks on current school employees, even those minority groups. who did not interact with children. The employer terminated 10 employees—nine of whom were African American. A suit ensued and

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1095 1096 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Diversity in the LAW

Raising the Bar The Case for Diversity and Inclusion in the Legal Profession By Hannibal B. Johnson iversity and inclusion, taken together, are the wave of the future and the sine qua non of organizational excellence. DAndres T. Tapia, in his book, The Inclusion Paradox, cap- tures the essence of the case for diversity and inclusion.

[T]he possibilities for an exponential explo- improvements in diversity and inclusion must sion of creativity, innovation and life- be made if equality of opportunity and the improving products and services birthed elevation of excellence are to be touchstones. through the union of diversity & inclusion Moreover, the success of the legal profession [are evident]. Embracing the mix and will increasingly turn on its ability to tap into knowing how to make it work will give us and leverage the diverse human capital at its the power to create an alternative, uplift- disposal. This too requires careful attention to ing, and creative vision. diversity and inclusion. Why, more specifically, do diversity and inclusion matter? [C]orporations, not-for-profits, government, law enforcement and the military WHY DIVERSITY AND INCLUSION will have to attract and retain the best tal- MATTER ent from multiple labor pools if they are to As demographics and economic variables survive the talent war. The key to attraction change, so too must the legal profession. With lies in creating truly inclusive environ- respect to diversity and inclusion, adopting an ments. Don’t be fooled by how soft and assertive, proactive posture — leading change effortless that sounds. Inclusion is one of 1 — offers a competitive edge. Internalizing the hardest things to achieve. diversity and inclusion — understanding these To its credit, the legal profession has made concepts on an intellectual level and living and continues to make strides toward diver- them out on a practical one — can make an sity and inclusion. But this is a marathon organization more attractive, profitable and without a finish line. Pacing and perseverance nimble. Organizational fidelity to several key are required. propositions will determine the success of diversity and inclusion undertakings. In every sphere of the profession — pre-law education, paraprofessional training, law Diversity and inclusion are both moral schools, academia, government service, the imperatives and business necessities. The case criminal justice system, the judiciary, private for diversity and inclusion is two-dimensional: practice, law firms, corporate legal depart- one moral, the other economic. ments and more — commitments to and

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1097 The moral case for diversity and inclusion is straightforward and intuitive. Valuing people — treating others with dignity, respect and America’s leading advocacy fairness — is a near-universal moral impera- tive, prized by countless philosophical and group for the legal profession, the religious traditions. Diversity and inclusion American Bar Association (ABA), dovetail with time-honored, widely-shared values. ranks diversity and inclusion The business case for diversity and inclusion among its core focus areas. has become increasingly pervasive and persua- sive. Globalization and demographic shifts have altered the labor pool and reconfigured purchasing power. Diverse groups represent stimulate behaviors deemed consistent with tremendous human capital and consumption organizational core values and necessary for capacity. Organizations that fully appreciate optimal individual and group performance. this new reality will positively alter productiv- Diversity and inclusion work never ends. ity, creativity and culture, and are likely to There will always be new people to educate, enhance stature in the process. sectarian strife to resolve, and interpersonal Diversity is. Inclusion may or may not be. crises to address. Successfully navigating the Diversity refers to the differences and similari- diversity and inclusion voyage requires taking ties between and among individuals in the the long view, thinking critically and strategi- context of our shared humanity (e.g., race, gen- cally5 and planning for sustainability.6 How is der, age, religion, ability status, sexual orienta- the legal profession faring in terms of diversity tion and a host of other dimensions of one’s and inclusion? 2 identity). Inclusion suggests affirmative, pro- DIVERSITY AND INCLUSION IN THE active approaches to highlighting shared inter- LEGAL PROFESSION ests, respecting differences and affording everyone the opportunity to reach his/her full The legal profession has embraced diversity potential.3 Organizational success depends in and inclusion as central values. Translating substantial part on leveraging diversity and those values into operational imperatives inclusion into strategic imperatives that sup- remains a work in progress. 4 port organizational goals. The Association of American Law Schools Contact is necessary, but not sufficient. Inclu- (AALS) highlights diversity and inclusion as sion entails more than simply accumulating critical to robust learning environments and persons of varying backgrounds in check-the- essential to excellence in the legal profession. box fashion. Leveraging diversity in service of AALS stresses equal opportunity and supports inclusion requires skilled facilitation that affirmative action.7 empowers both organizations and the individ- Federal, state and local governments often uals within them. Inclusion involves not just cite diversity and inclusion among their core recruitment and hiring, but also development, values. Government-affiliated attorneys are advancement and retention. A sound diversity thus likely to work for employers who, at a and inclusion strategy should address systemic minimum, acknowledge the importance of barriers to equal opportunity, provide support diversity and inclusion and commit to work- systems for everyone and hold organizational places that embrace differences.8 The degree to leaders accountable for fashioning a culture in which government subdivisions actualize those which success is possible for all. diversity and inclusion values varies widely. With change comes resistance. Embracing America’s leading advocacy group for the diversity and inclusion means tackling the legal profession, the American Bar Association “but-this-is-the-way-we’ve-always-done-it” (ABA), ranks diversity and inclusion among its syndrome. Culture change rarely comes easily. core focus areas. The ABA has pledged to Resistance and roadblocks should be expected eliminate bias in the legal profession and the and, just as certainly, confronted. The aim of justice system and promote full and equal par- meeting diversity and inclusion challenges ticipation by all persons in all aspects of law- head-on is not to stifle dissent, but rather to related careers.9 The ABA Diversity Committee

1098 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 works to develop suggestions and strategies The call to action circulated among corporate for greater diversity in legal education in the counsel throughout the nation. Within a matter United States.10 This sweeping, explicit embrace of months, a bevy of corporate titans signaled of diversity and inclusion lays the foundation their support, including: Shell Oil, General for front-line changes at all levels of the profes- Motors, Marriott, Dow Chemical, Aon, Ameri- sion and practice. can Airlines, Merck, UPS, MCI, PepsiCo and Sears. The Leadership Council on Legal Diversity (LCLD), a collective of corporate chief legal Evidence suggests that the Great Recession officers and law firm managing partners, is eroded many of the gains spurred by the call to dedicated to creating a diverse legal profes- action. Some consider this proof of the com- sion. LCLD uses its considerable clout to ratch- monly-held perception that diversity and inclu- et up the performance of the legal profession in sion initiatives too often become expendable in the realm of diversity and inclusion, building economic hard times.15 upon a 2004 document, “Call to Action: Diver- National organizations like the AALS, ABA sity in the Legal Profession,”11 by the chief legal and LCDC have become champions of diver- officers of nearly 100 major corporations. The sity and inclusion. Has this national support Call to Action sought to expand opportunities trickled down to Oklahoma? for diverse attorneys within the signatory corporations and the law firms with which they DIVERSITY AND INCLUSION IN THE did business. LEGAL PROFESSION: OKLAHOMA LCLD cited business justifications for its push In terms of the legal profession in Oklahoma, for enhanced diversity and inclusion, impress- diversity16 is; but inclusion has not always ing upon the corporate community: 1) the been. African Americans, for example, have importance of hiring, engaging, developing, long practiced law in the state. For decades fol- retaining and promoting the best talent, an lowing Oklahoma’s acceptance into the Union impossibility so long as barriers to full partici- in 1907, however, African American attorneys pation and success for women, minorities12 and faced discrimination in ways great and small. others remain; and 2) the growing chorus of In the early 20th century, an impressive array complaints from clients and communities about of African American lawyers practiced in Indi- the failure of the legal profession to closely an and Oklahoma Territories, the precursors to mirror real world demographics.13 the modern state of Oklahoma. Many estab- The call to action that sparked the LCDC lished practices in Guthrie, the capital of Okla- push for diversity and inclusion read, in part: homa Territory and, until 1910, the capital of the state of Oklahoma.17 A Tulsa lawyer and civil As Chief Legal Officers, we hereby reaffirm rights advocate, Amos T. Hall, continued the our commitment to diversity in the legal barrier-breaking tradition of those great men.18 profession. Our action is based on the need to enhance opportunity in the legal profes- These lawyers faced overt and covert barri- sion and our recognition that the legal and ers in a state suffused in the ways of the Jim business interests of our clients require Crow South. Facing abject racism and discrimi- legal representation that reflects the diver- nation, they nonetheless pushed forward in the sity of our employees, customers and the practice of their craft.19 communities where we do business. In 1948, a significant de jure barrier to inclu- [I]n addition to our abiding commitment to sion within the Oklahoma legal profession fell. diversity in our own departments, we pledge In Sipuel v. Board of Regents of the University of that we will make decisions regarding which Oklahoma,20 the United States Supreme Court law firms represent our companies based in ruled that the State of Oklahoma must provide significant part on the diversity performance instruction for African Americans on par with of the firms. We intend to look for opportu- that afforded whites. The case centered on nities for firms we regularly use which posi- desegregation of the University of Oklahoma tively distinguish themselves in this area. Law School. Thurgood Marshall, representing We further intend to end or limit our rela- the National Association for the Advancement tionships with firms whose performance of Colored People (NAACP) in a forerunner to consistently evidences a lack of meaningful Brown v. Board of Education,21 acted as the lead interest in being diverse.14

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1099 counsel on the case. Amos T. Hall served as able progress should offer encouragement and co-counsel. hope to all. Sipuel heralded change to de jure exclusion in Yet another sign of the movement toward the law school context. Nonetheless, full inclu- inclusion among the Oklahoma legal profession of African Americans in all facets of the sion is an initiative of Tulsa-based corporations legal profession proved elusive. De facto exclu- Williams and WPX Energy called “The Pipe- sion continued long after Sipuel. line+ Program (Pipeline+).” Pipeline+, work- In recent years, professional organizations, ing closely with the Northeastern Oklahoma corporations, law firms, and others in Oklaho- Black Lawyers Association, goes beyond the dis- ma have made significant strides in terms of cussion of the lack of diversity and, by example diversity and inclusion. The Oklahoma Bar and inspiration, works to close the “diversity Association (OBA) maintains a Diversity Com- gap.” Pipeline+ identifies, educates, and moti- mittee whose aims are to: 1) bring more lawyers vates high school students of color considering of color, women, young lawyers and lawyers careers in the legal profession. The program practicing in the public and corporate sectors introduces these students to the law school into OBA leadership; and 2) promote full and experience, the practice of law and an assort- equal participation by minorities throughout the ment of legal practitioners. Pipeline+ also pro- profession and practice by increasing opportuni- vides financial assistance for law students of ties.22 The OBA honors law-related individuals color attending Oklahoma law schools. and organizations with annual Ada Lois Sipuel Fisher Diversity Awards for promoting diversity What practical steps might be undertaken to in Oklahoma. The OBA Diversity Committee elevate diversity and inclusion throughout the presents these awards, first bestowed in 2012 at legal profession? a luncheon during the annual OBA Diversity PRACTICAL STEPS TOWARD DIVERSITY Conference.23 AND INCLUSION How does an academic institution, a law firm, a corporate legal department or a team of government lawyers get started on the work of diversity and inclusion or enhance its ongoing With organization leadership activities? Ownership by leadership is essential. Buy-in at the top, among those with deci- aboard, venturing into the waters of sion-making and spending authority, sets the diversity and inclusion becomes stage for a diversity and inclusion push that is organic, integrated and sustainable. less daunting. With organization leadership aboard, venturing into the waters of diversity and inclusion becomes less daunting. A number of practical steps may enhance the likelihood of Diversity and inclusion rank as priorities smooth sailing.26 Speaking the language of among professional associations at the local diversity and inclusion, without more, is insuf- level too. For example, the Tulsa County Bar ficient. Words must be followed with deeds. Association maintains a standing Diversity Development Committee charged with devel- Organizations moving toward diversity and oping diversity within the practice of law and inclusion should: 1) conduct an objective the TCBA, guiding firms engaged in diversity assessment; 2) create a long-term, integrated recruitment and promoting community out- strategy; 3) engage professionals for advice reach.24 and guidance; 4) implement programs for hiring, developing, retaining, and promoting The legal profession in Oklahoma has made diverse talent; 5) create and sustain training,27 noteworthy advances in diversity and inclu- development, and mentoring programs; 6) sion in the judiciary and other high profile institutionalize diversity and inclusion; 7) areas of government service. Consider, for develop relationships and share best practices example, the number of African Americans in information with other entities; 8) measure key judicial and executive posts.25 This undeni- success through appropriate metrics; 9) incen-

1100 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 tivize and reward positive behaviors; and 10) ductivity, a less agile workforce and missed hold people accountable for results. market opportunities). What philosophy underlies the foregoing The legal profession is no exception to the measures? Stated differently, what individual rule. Cultural competency enhances the ability and organizational capacity fosters a culture in of lawyers to relate to clients, co-workers, fellow which diversity and inclusion thrive? practitioners and the community at large.29 CULTURAL COMPETENCY: DEVELOPING To what extent should resistance to and road- CAPACITY AROUND DIVERSITY AND blocks in the way of cultural competency be INCLUSION anticipated? If and when encountered, how If diversity and inclusion rank highly among might such pushback be addressed? organizational imperatives, then it follows that ANTICIPATING AND COUNTERING developing individual and collective capacity RESISTANCE AND ROADBLOCKS around these complementary principles should be a first-order priority. That capacity is gener- Organizations should anticipate resistance to ally known as cultural competency.28 diversity and inclusion, if not at the outset, then later, perhaps in the form of “diversity Cultural competency speaks to a person’s fatigue” (i.e., a feeling that diversity and inclu- awareness, attitudes, knowledge and skills sion are getting too much attention or are being around matters of diversity and inclusion. oversold; diversity and inclusion “burnout”). Again, diversity refers explicitly to the ways in Effective communication, positive programs which individuals differ from one another. and continuing education help mitigate such Implicitly, it suggests that beyond such differ- blowback. ences lie core commonalities — shared interests — upon which to build a common future. Inclu- Communications about diversity and inclusion signals embracing others; recognizing that sion should: 1) articulate a vision; 2) share the business case; 3) establish a broad definitional people are inextricably intertwined; extending 30 dignity and respect to all members of the human umbrella; 4) emphasize the integration of family. diversity and inclusion into regularized organizational policy, procedure and practice; 5) Cultural competency suggests an awareness stress the support of top management, citing of one’s own cultural identity and views about specific examples of such buy-in; 6) acknowl- differences, coupled with a willingness to learn edge and respond to employee concerns; and about and build upon the varying cultural and 7) elevate opportunity and fairness as key community norms of those with whom one organizational values. comes into contact. It implies an understanding of the within-group differences that make Organizations that provide forums for resis- each individual unique, but also an apprecia- tance and signal openness to adjustments and tion for the between-group variations that add course corrections may deftly diffuse resistance richness and texture to our legal apparatus, our to diversity and inclusion. On a sustained institutions and our nation as a whole. basis, employee networks, councils and task forces serve as resources for troubleshooting Cultural competency has both moral and diversity and inclusion issues and challenges. economic dimensions. It serves philosophical principles of fairness and justice and furthers Diversity and inclusion programs should be business ends. positive and affirming. They should also be aligned with the overall vision of the organiza- From a moral perspective, cultural compe- tional culture. This vision should weave in the tency promotes respect for and appreciation of justification for and benefits from diversity and the worth and dignity of all people. It therefore inclusion and paint a portrait of what that furthers the cause of justice. means at the individual and group levels. Beyond moral considerations, the economics The continuing education needed to address of cultural competency seem clear. Given rap- criticism of and backlash toward diversity and idly changing demographics and globalization, inclusion begins at the top. Diversity and inclu- those organizations with ill-developed cultural sion efforts fail in the absence of top-level com- competency will become increasingly likely to mitment and leadership by example.31 suffer economic consequences (e.g., lower pro-

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1101 Resistance should not be the basis for forgo- mutual interests. See Three Paradigms for Diversity Change Leaders, adapted by The Koi Group © 2001 from an original article written by ing diversity and inclusion work or ending it Judith D. Palmer, Three Paradigms for Diversity Change Leaders, available prematurely. If that resistance manifests itself at http://tinyurl.com/lmhtke7 (last visited Nov. 29, 2013). 4. See, e.g., Society for Human Resource Management, Diversity_ as diversity fatigue, consider co-optation (i.e., CLA_Definitions_of_Diversity_Inclusion.ppt (last visited Dec. 6, 2013); bringing in critics to help reshape and refocus “How We Define Diversity and Inclusion,” Cornell University, Division of Budget and Planning, http://tinyurl.com/qhzjk3r (last visited Dec. 6, diversity and inclusion initiatives in ways that 2013); “What is the Difference Between Diversity and Inclusion?,” Diver- instill new vitality and vigor). Roadblocks and sity University Newsletter, Sept. 27, 2011, available at http://tinyurl. resistance and/or diversity fatigue need not be com/d89eukw (last visited Dec. 6, 2013). 5. See generally, Thomas, David A., Diversity as Strategy, Harvard allowed to derail otherwise sound diversity Business Review, Sept. 2004, available online at http://tinyurl.com/ and inclusion programs. mh4ytoy (last visited Nov. 26, 2013). 6. See generally, Thomas, David A., and Robin Ely, Making Differ- CONCLUSION ences Matter: A New Paradigm for Managing Diversity, Harvard Business Review, Sept. 1, 1996; William Sonnenschein, The Diversity Toolkit: How You Can Build and Benefit from a Diverse Workforce (New York, NY: The case for diversity and inclusion has at McGraw Hill 1999). least two dimensions: one moral; the other, 7. The Association of American Law Schools, Statement on Diversity, Equal Opportunity and Affirmative Action, www.aals.org/about_hand economic. The moral case for is straightfor- book_sgp_div.php (last visited Dec. 1, 2013). ward. Valuing diversity and inclusion is the 8. Diversity and inclusion at the federal level is instructive. In right thing to do. It is about respect for the dig- Executive Order 13583: Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce, nity and worth of self and others. President Barack Obama noted: “Our Nation derives strength from the diversity of its population and from its commitment to equal opportu- Though the moral underpinnings of diversi- nity for all. We are at our best when we draw on the talents of all parts ty and inclusion feel intuitive and natural, we of our society, and our greatest accomplishments are achieved when diverse perspectives are brought to bear to overcome our greatest chal- often have difficulty living up to them. We find lenges.” See Executive Order 13583, available at http://tinyurl. ways to distinguish and divide instead of com/3vdzteh (last visited Dec. 1, 2013); U.S. Office of Personnel Man- agement, Office of Diversity and Inclusion, Government-wide Diver- coalesce and collaborate. For those who need sity and Inclusion Strategic Plan, 2011, http://tinyurl.com/l9dhmxg an extra nudge to move into the realm of diver- (last visited Dec. 1, 2013). 9. See http://www.americanbar.org/portals/diversity.html (last sity and inclusion, the business case may pro- visited Nov. 24, 2013). vide just the right impetus. 10. See generally, http://tinyurl.com/mtcbkfl (last visited Nov. 30, 2013). Research continues to cement the business 11. See http://tinyurl.com/neyu72l. 12. Caution should be exercised in the use of the term “minority” case for diversity and inclusion. When organi- as a referent to persons who are not members of the dominant social zations invest in diversity and inclusion, the group in the United States (i.e., European Americans). Some consider the word to be a pejorative reference to socioeconomic status rather dividends include: (1) an increased talent pool; than a mere shorthand for “non-white” status. Still others view 2) improved retention, employee engagement “minority” as connoting someone “less than,” and for that reason and teamwork that lead to diminished conflict reject the term as having the potential to cause psychic damage to its targets. “People of color” is a less objectionable general term for non- and litigation; 3) enhanced customer/client white people when addressing issues of race and ethnicity. Specific relations, which translates into increased mar- references to various dimensions of diversity are more appropriate than the catch-all “minority” (e.g., African Americans; Latinos; the ket opportunities; and 4) expanded creativity LGBT community; Muslims). and innovative solutions from a variety of per- 13. See http://www.lcldnet.org/how_to_join_commitment_state ment.html (last visited Nov. 24, 2013). spectives that yield competitive advantage in 14. Roderick A. Palmore, then CLO of Sara Lee Corporation and a the marketplace.32 member of the board of directors of the Association of Corporate Counsel (“ACC”), wrote the Call to Action. The ACC board endorsed Economists urge that we are each motivated the Call to Action at its Oct. 24, 2004, meeting. See http://tinyurl.com/ neyu72l (last visited Nov. 24, 2013). by our individual self-interest. Diversity and 15. Imad Abdullah, “Is the Call to Action Working?,” Diversity inclusion, properly led and managed, serve Matters, Baker Donelson (Spring 2011), available at http://tinyurl. com/nok9dmj (last visited Dec. 4, 2013). that interest. Understanding, appreciating and 16. “Diversity” encompasses a wide array of differences. Major valuing diversity and then working toward identity markers or core dimensions of diversity often include: race, inclusive organizational cultures, is the princi- ethnicity, national origin, gender, gender identity, sexual orientation, age, ability status, religion, and socioeconomic status. The author pled course. It is also the economically prudent speaks primarily to race in this section on account of personal experi- worldview. ence and intellectual/academic familiarity. 17. Early African American legal eagles included: B. C. Franklin (Ardmore, Rentiesville, and Tulsa); E. I. Saddler (Guthrie, Muskogee, 1. Andres T. Tapia, The Inclusion Paradox—The Obama Era and the and Tulsa); George W.F. Sawner (Guthrie); W. H. Twine (Guthrie and Transformation of Global Diversity (Lincolnshire, Illinois: Hewitt Associ- Muskogee); George N. Perkins (Guthrie); Robert Emmett Stewart ates 2009), at 15. (Guthrie); G. W. P. Brown (Guthrie), A. L. Ayers (Langston); William H. 2. Diversity includes characteristics and identities beyond the nar- Harrison (Tulsa and Oklahoma City); and James Coody Johnson row categories enumerated in equal opportunity and affirmative (Wewoka). Bruce Fisher and Jerome Holmes, African American Lawyers action non-discrimination statutes. in Oklahoma, 75 Oklahoma Bar Journal 66 (Sept. 11, 2007) (Special Cen- 3. Dr. Judith Palmer formulated three diversity and inclusion para- tennial Issue of the Oklahoma Bar Journal), at 1; John Hope Franklin and digms: 1) The Golden Rule; 2) Right the Wrongs; and 3) Value the John Whittington Franklin, eds., My Life and an Era — The Autobiogra- Differences. The author suggests a fourth paradigm, Takatoka, a Chero- phy of Buck Colbert Franklin (Baton Rouge, Louisiana: Louisiana State kee word meaning, roughly, “standing together.” The Takatoka para- University Press, 1997), at 51. digm subsumes the others, but rests upon notions of shared space and

1102 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 18. Amos T. Hall collaborated with Thurgood Marshall, who later http://tinyurl.com/qe2jkzv (last visited Dec. 5, 2013). Key parts of the became the first African American United States Solicitor General and work of the National Center for Cultural Competence are based on the United States Supreme Court Justice, on important civil rights cases. In work of Cross, Bazron, Dennis, and Isaacs. 1969, Hall was appointed special judge of the District Court of Tulsa 29. See generally, Katherine Frink-Hamlett, “The Case for Cultural County. He served until 1970, when voters elected him to the post of Competency,” New York Law Journal, April 25, 2011, available at http:// associate district judge for Tulsa County— the first African American tinyurl.com/kpsgakb (last visited Dec. 4, 2013). to be elected to a county-wide office and the first African American to 30. Adopting a comprehensive and clear definition of diversity will be elected a judge in Oklahoma. He won the post with more than fifty- help tamp down resistance to diversity and inclusion initiatives. The percent of the vote in a four-man primary. See, e.g., Hannah D. Atkins, definition should be broad enough to include race, ethnicity, national Hall, Amos T. (1896 – 1971), Oklahoma Historical Society’s Encyclope- origin, gender, parental status, religion education, physical abilities, dia of Oklahoma History & Culture, http://tinyurl.com/qhdvdwu age, sexual orientation, work status, functional expertise, political/ (last visited Nov. 25, 2013). ideological persuasion, and much more. “Diversity” should capture 19. See generally, My Life and an Era—The Autobiography of Buck the various and sundry differences people bring to the table. Colbert Franklin xiii-xxii (John Hope Franklin and John Whittington 31. What might organizations do to ensure leadership support of Franklin, eds., Baton Rouge, LA: Louisiana State University Press diversity and inclusion?: 1) help strengthen the facilitation and inter- 1997). Hannibal B. Johnson, Black Wall Street: From Riot to Renaissance in vention skills of leaders to equip them to counter verbal and non- Tulsa’s Historic Greenwood District (Austin, Texas: Eakin Press, 1998), at verbal resistance to diversity and inclusion; 2) hire coaches to help 105 - 106. leaders hone their skills in addressing employees who raise concerns 20. Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. about potential bias as a result of diversity inclusion efforts; 3) offer 631 (1948). opportunities to enhance leaders’ team-building and conflict resolu- 21. Brown v. Board of Education, 347 U.S. 483 (1954). tion skills; 4) create opportunities for leaders to demonstrate their 22. See generally, Oklahoma Bar Association Committee Annual support for and understanding of diversity and inclusion; 5) require Reports for 2012, available at http://tinyurl.com/jvsve7x (last visited leaders to participate in outside community organizations (i.e., associa- Nov. 30, 2013). tions, nonprofit boards) in which they are exposed to communities out- 23. See generally, http://tinyurl.com/pxusb5v (last visited Nov. 30, side their own demographic and socio-economic backgrounds; 6) make 2013). diversity and inclusion a core leadership competency against which to 24. See Tulsa County Bar Association, http://www.tulsabar.com/ develop, assess, and promote the next generation of organization lead- join-a-committee (last visited Dec. 1, 2013). ers; and 7) link leaders’ compensation to performance objectives related 25. Tom Colbert, chief justice of the Oklahoma Supreme Court; to recruiting, developing, and advancing a diverse group of employees. David B. Lewis, associate judge, Oklahoma Court of Criminal Appeals; Adapted in part from Workplace Diversity: How to Tackle Resistance, Vickie Miles-LaGrange, chief judge, United States District Court for the Catalyst, May 13, 2009, http://tinyurl.com/on48dpy (last visited Oct. 31, Western District of Oklahoma; Carlos Chappelle, presiding judge, 2011); Gary S. Topchik, Confronting Negativity in the Workplace, http:// Tulsa County District Court; and Danny C. Williams, Sr., United States www.ccfbest.org/worklife/confrontingnegative.htm (last visited Oct. attorney for the Northern District of Oklahoma. 31, 2011). 26. See, e.g., Diversity in the Legal Profession: Next Steps, American Bar 32. Marcus Robinson, Charles Pfeffer, and Joan Buccigrossi, “Busi- Association, 2011, available at http://tinyurl.com/kw9hk6q (last visit- ness Case for Inclusion and Engagement,” 2003, available at http:// ed Nov. 29, 2013). tinyurl.com/ybwun92 (last visited Dec. 5, 2013). 27. Diversity and inclusion education should focus on the following key learning objectives: 1) promoting mutual respect; 2) creating awareness; 3) stimulating strategic thinking; and 4) enhancing critical thinking. About The Author 28. See National Center for Cultural Competence, “Conceptual Frameworks/Models, Guiding Values and Principles,” http://nccc. georgetown.edu/foundations/frameworks.html (last visited Dec. 5, Hannibal B. Johnson, a Har- 2013). According to the National Center for Cultural Competence, vard Law School graduate, is an cultural competency requires that organizations: [H]ave a defined set of values and principles, and demonstrate author, attorney, consultant and behaviors, attitudes, policies and structures that enable them to college professor. Mr. Johnson’s work effectively cross-culturally[;] have the capacity to (1) value diversity, (2) conduct self-assessment, (3) manage the dynamics work focuses primarily on diversity of difference, (4) acquire and institutionalize cultural knowledge and inclusion, African American and (5) adapt to diversity and the cultural contexts of the communities they serve[;] incorporate the above in all aspects of history and culture and commu- policy making, administration, practice, service delivery and nity leadership. He teaches at involve systematically consumers, key stakeholders and com- Oklahoma State University and the University of munities. Cultural competence is a developmental process that evolves over an extended period. Both individuals and organiza- Oklahoma and previously taught at the University of tions are at various levels of awareness, knowledge and skills Tulsa College of Law. He has authored many books and along the cultural competence continuum. See also, Terry L. Cross, Barbara J. Bazron, Karl W. Dennis, and Mareasa a play on diversity and African American history. Mr. R. Isaacs, Towards a Culturally Competent System of Care: A Monograph on Johnson has received numerous awards and honors for Effective Services for Minority Children Who Are Severely Emotionally Dis- turbed: Volumes I, II, and III (Washington, D.C.: CASSP Technical Assis- his work and community service. tance Center, Georgetown University, March 1989), available online at

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1103 SECTION NOTE Real Estate Law Section Marketable Record Title: A Deed Which Conveys Only the Grantor’s ‘Right, Title and Interest’ Can Be a ‘Root of Title’ By Kraettli Q. Epperson

Some title examiners are suggesting that it is asserting an ownership interest, within the the law in Oklahoma that: if a deed expressly 30-year-old period subsequent to the root.4 states that it is conveying the “right, title and As stated by the Oklahoma Supreme Court interest” of the grantor, then such deed cannot in a 1982 case: “Legal effect is, in some instances, serve as a “root of title” (sometimes referred to accorded by the Act [MRTA] to the recording of herein as the “root”) under the Marketable void instruments. This is consistent with the stat- Record Title Act (MRTA or the act) (the “non- ute’s objectives of limiting the necessity of root position”).1 If this non-root position pre- title investigation to records which post-date vails, then the MRTA would be rendered essen- the root of title and of facilitating land title tially useless, because — by statute — all statu- transactions.”5 tory form quit claim deeds and statutory form warranty deeds (sometimes referred to herein Such act creates valid marketable record title as “statutory deeds”) only convey the “right, automatically, without the intervention of a title and interest” of the grantor regardless of court; this produces the beneficial effect of pro- whether such limiting language is added to the moting the certainty of title while eliminating statutory form deed language.2 Put another the expense of litigation and the delay of real way, since most “links” in any record “chain of estate closings due to requiring curative lawsuits title” consist of such statutory deeds, if this (e.g., probates and quiet title actions).6 As stated non-root position prevails, none of these “links” in the most recent 1990 version of the Prefactory will be treated as the root for anyone’s chain of Note in the Uniform Laws Commission discus- title. sion of the Model Marketable Title Act: PURPOSE OF THE MRTA The basic idea of the Marketable Title Act is to The MRTA has been an incredibly strong tool codify the venerable New England tradition of for over 50 years in Oklahoma, since its adop- conducting title searches back not to the origi- tion in 1963, because it extinguishes all real nal creation of title, but for a reasonable period property claims of interest — both valid and only. The Model Act is designed to assure a title invalid — arising before a conveyance (i.e., searcher who has found a chain of title starting deed or decree) known as the root, and this act with a document at least 30 years old that he confers marketable record title on the grantee need search no further back in the record. in such root (and its assignees). The MRTA The period of time established under the act makes titles safe and easily transferrable, by to review the land records under both the eliminating not only stray claims, but also Model Marketable Title Act and the Oklahoma originally valid, but old and unused, claims of version was initially 40 years and was then interest.3 Such ancient claims are extinguished shortened to 30 years.7 under the act when the local land records show no activity by the “pre-root” interest claimant

1104 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 This cleansing action, which eliminates based, is not instructive or dispositive, and 2) it ancient “unused” interests, fosters the public would undermine the entire system of market- policy of maximizing the productivity of land able record title established by the Legislature by implementing the axiom of “use it or lose through its adoption of the MRTA in 1963 and it.” This policy is also reflected in the concept implemented by title examiners continuously of title by prescription (i.e., adverse since then. possession).8 The Reed Case ROOT OF TITLE This non-root position is based principally Under the MRTA, the instrument known as on the holding of a 1945 Oklahoma Supreme the “root of title” (the root) is described as: Court case which dealt with a dispute between a grantor and a grantee in a warranty deed. (e) “Root of title” means that conveyance The dispute concerned what portion of the or other title transaction in the chain of lands described in a warranty deed are covered title of a person, purporting to create the inter- by the warranty language in the deed, when est claimed by such person, upon which he the granting clause is preceded by language relies as a basis for the marketability of his title, limiting such conveyance to the “right, title and which was the most recent to be recorded as and interest” of the grantor.11 of a date thirty (30) years prior to the time when marketability is being determined. The As stated in the syllabus by the Reed court: effective date of the “root of title” is the date on ¶0 1. COVENANTS - Covenant of warranty which it is recorded. where granting clause of deed contained words (f) “Title transaction” means any transaction “all their right, title and interest in and to” affecting title to any interest in land, including preceding description of property. In the grant- title by will or descent, title by tax deed, mineral ing clause of a deed the words, “all their deed, lease or reservation, or by trustee’s, refer- right, title and interest in and to,” preced- ee’s, guardian’s, executor’s, administrator’s, ing the description of the real property, master in chancery’s, sheriff’s or marshal’s deed, limits the grant to the present interest of or decree of any court, as well as warranty the grantor, and the covenant of warranty deed, quitclaim deed, or mortgage.9 refers only to the right, title and interest of the grantor in the premises at the time of It should be noted that this list of “title trans- the conveyance. Kimbro v. Harper, 113 Okla. actions” which can constitute the root, includes 46, 238 P. 840, is overruled in so far as it a “warranty deed, [and] quitclaim deed.” Absent conflicts herewith. other guidance, this “warranty deed, [and] quitclaim deed” presumably means the statutory The Reed holding should not have any impact form warranty deed and statutory form quit on the interpretation of the MRTA because its claim deed. As noted above, the statutory form facts and argument do not affect the implemen- warranty deed “shall convey to the grantee, his tation of the MRTA, for the following reasons: heirs or assigns, the whole interest of the 1. The Reed case turned on a) the actual grantor in the premises described,” and the knowledge of the grantee of the defect in title, statutory form quit claim deed “shall convey b) the record title reflecting such defect, and c) all the right, title and interest of the maker the intent of the two parties. The decision was thereof in and to the premises therein not really based on the addition of the “right, described.”10 title and interest” language to the warranty THE NON-ROOT POSITION deed. The Reed court explains its rationale as follows: There is an ongoing discussion among title examiners in Oklahoma as to whether the ¶8 The plaintiff contends that grantors at the time addition of the words: “right, title and interest” held title to 23/24ths undivided interest in the land to the granting language of a quit claim deed or described; that the words, ‘all their right, title and warranty deed changes the fundamental nature interest in and to’, preceding the legal description of the land conveyed, were qualifying words, which of the deed so that it cannot operate as a root expressly limited the grant to the interest in the for the lands being described. land then held by the grantors. The defendant con- The reasons the non-root position should be tends that such words do not cut down the interest rejected are: 1) the Reed case, on which it is conveyed to any limited amount, but warrants the

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1105 title to the entire interest in the land covered by the est of the maker,” and a statutory form war- legal description. ranty deed only conveys “the whole interest of the grantor” — regardless of whether or not ¶9 The contention of the defendant is without someone adds to the statutory deed form the merit where the record shows that the grantor language limiting its grant to the right, title did not have title to the entire interest in the and interest of the grantor — if such non-root land, and the grantee knew it, and it was not the intention of the parties that the deed position prevails, then not only will the possi- should convey more than the grantor had in bility of a deed being a root be denied to those expressly limited deeds, but the potential to be the land. AND a root will also be denied to any statutory 2. There was no discussion of the MRTA in form deed.14 the 1945 Reed case, because the MRTA was not even adopted until 1963. Under the MRTA, the Such a negative result would be contrary to nature of marketable record ownership of land both 1) the presumption that all legislative is fundamentally changed to be based on a enactments are to be interpreted in a way so as limited 30-year review of record title, instead to carry out their stated purpose, and are not treated as a nullity,15 and 2) the act’s stated of a review all the way back to the issuance of 16 the patent from the sovereign. This new proce- intent to extinguish old claims. dure for determining the true owners of real If the non-root position prevails, this would property involves extinguishing all pre-root force a title examination to extend beyond the interests and vesting superior title to the holder legislatively-mandated 30-year period, to look of title under the root and his/her assigns, for a “conveyance or other title transaction” against all claimants. This is without regard to which is neither an expressly limited deed nor whether such pre-root claims would otherwise a statutory form deed. Presumably, the only be valid and senior. In other words, due to the instruments which then could be considered as new effect of the MRTA, contrary to the hold- a possible root would be court proceedings, ing in Reed, the grantor in the root can “convey such as probate and quiet title decrees. This more than the grantor had in the land.” fails to add any benefit to the title examination Even a void instrument (i.e., a void tax deed) process because such decrees are already deemed uncontestable after 10 years under the which — by its nature — makes no representa- 17 tion of ownership of the whole interest, can be Simplification of Land Titles Act. a valid root of title and create marketable CONCLUSION record title.12 In the face of 1) the problems identified above THE UNINTENTED NEGATIVE with relying on the Reed case, 2) the express lan- CONSEQUENCES OF THE NON-ROOT guage of the MRTA, 3) the inherent statutorily- POSITION imposed limitation on all statutory form deeds If the impact of the non-root position was to conveying the “right, title and interest” of the applied to only those deeds with such “right, grantor, and 4) the disastrous retrograding title and interest” language added to the grant- impact on the title examination process, the non- ing clause, the impact would be limited to root position must be rejected. excluding such deeds — which are probably 1. 16 O.S. §§71-78. few in number — from consideration as a root. 2. 16 O.S. §18: “A quitclaim deed, made in substantial compliance Examiners would have to find a root instru- with the provisions of this chapter, shall convey all the right, title and interest of the maker thereof in and to the premises therein described.”; ment — at least 30 years old — which did not 16 O.S. §19: “A warranty deed made in substantial compliance with the contain such a limitation. Subsequent post-root provisions of this chapter, shall convey to the grantee, his heirs or assigns, the whole interest of the grantor in the premises described...”. conveyances, which comprise the required 3. 16 O.S. §73: “...All such interests, claims or charges, however denomi- 30-year unbroken and unchallenged chain, nated, whether legal or equitable, present or future, whether such interests, could contain such a restriction, since the claims or charges are asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is holder of the title under the unrestricted root natural or corporate, or is private or governmental, are hereby declared to be null instrument would be treated as claiming and and void. 4. 16 O.S. §71: Any person having the legal capacity to own land in this conveying a full non-limited interest, and the state, who has an unbroken chain of title of record to any interest in land for subsequent grantors would be passing such thirty (30) years or more, shall be deemed to have a marketable record title to interest forward.13 such interest as defined in Section 78 of this title, subject only to the matters stated in Section 72 of this title. ...” 5. Mobbs v. City of Lehigh, 1982 OK 149, ¶17. However, because a statutory form quit claim 6. The Oklahoma Marketable Record Title Act, Tulsa Law Journal (Vol. 9, deed conveys only “all the right, title and inter- No. 1, 1973, pg. 74) See Bennett v. Whitehouse, 690 F. Supp. 955, 962 (U.S.

1106 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Dist. Ct. W. Dist. OK. 1988). Also see Anderson v. Pickering, 1975 OK CIV APP 42, ¶16. And see “Anderson v. Pickering and the Marketable Record Title About The Author Act,” by H. Henley Blair and Henry Rheinberger 51 OBJ 2517 (1980). 7. 16 O.S.§71 (Session Laws 1970, c. 92, §1, eff. July 1, 1972). 8. 60 O.S.§333, and 12 O.S.§93(4). Kraettli Q. Epperson is a part- 9. 16 O.S.§78. ner with Mee Mee Hoge & 10. 16 O.S. §19; 16 O.S. §18; real estate attorneys typically refer to the Epperson in Oklahoma City. He statutory “quit claim deed” as a “quit claim deed,” but they commonly refer to the statutory “warranty deed” as a “general warranty deed” to focuses on oil/gas and real prop- distinguish it from a “special warranty deed. A “special warranty deed” erty matters (expert, mediation, gives all of the usual present and future warranties found in a general warranty deed (i.e., 16 O.S.§19), except that, if such defects or encum- title exam and lawsuits). He brances arise before the grantor/warrantor came into title, they would chairs the OBA Real Property not be covered. Whayne v. McBirney 1945 OK 42, ¶¶0, 14. See the Okla- homa Real Estate Commission’s standard form UNIFORM CONTRACT Law Section’s Title Examination OF SALE OF REAL ESTATE: RESIDENTIAL SALE (11-2013) which pro- Standards Committee, teaches vides: “Seller agrees to sell and convey by General Warranty Deed, and Buyer agrees to accept such deed...”. “Oklahoma Land Titles” at OCU 11. Reed v. Whitney, 1945 OK 354 School of Law and edits West’s Oklahoma Real Estate 12. Mobbs v. City of Lehigh, 1982 OK 149, see ¶1, 15, 16, and ¶17. Forms. His website is www.EppersonLaw.com. 13. 16 O.S.§29; the “shelter rule” is explained in Knowles v. Freeman, 1982 OK 89, ¶18 and 22. 14. 16 O.S. §§18 & 19; and 16 O.S.§§40 and 41. 15. Curtis v. Board of Educ. of Sayre Public Schools, 1995 OK 119, ¶9. 16. 16 O.S.§73. 17. 16 O.S.§61-63, 66.

In remembrance of our former partner and colleague WILLIAM J. HOLLOWAY, JR. and his distinguished career serving the cause of justice as the longest sitting judge on the U.S. Tenth Circuit Court of Appeals 1923-2014

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1107 Thanks to you, LAW DAY was a success!

Special thanks to those who partnered with the OBA Law Day Committee to support Law Day in Oklahoma

Oklahoma Supreme Court Chief Justice Tom Colbert OBA President Renée DeMoss OETA Dr. Lori Basey Susan Krug Linda Herndon, Massage Therapist Astrud Ray-Kubier, Massage Therapist Mike Wilds Beale Professional Services Big Anthony’s Barbecue, Tulsa Canton Lake Association Carter County Courthouse Staff Derryberry & Naifeh LLP GableGotwals Hall Estill PC Lamar Outdoor Advertising LawPay Legal Aid Services of Oklahoma Inc. Legal Graphics Inc. Mordy & Mordy PC No Boundaries International OBA Human Trafficking Task Force Oklahoma Attorneys Mutual Insurance Company Oklahoma County Bar Auxiliary Overlook Café, Canton Phillips Murrah PC Pierce Couch Hendrickson Baysinger and Green, LLP Soup Soup Catering and Takeout Students and Faculty at Oklahoma City University School of Law Tulsa County Bar Association University of Tulsa College of Law Vital Outdoor Advertising

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1109 FEATURE STORY

Rural Lawyers Tout Big Possibilities in Small Towns By Kirby Lee Davis

Three recent deaths have left District Court Judge Michael D. DeBerry with only two attorneys serving one of the areas he covers — and both surviving practitioners are 65 years old or older. “We need lawyers in southeastern Oklahoma,” said DeBerry, who serves McCurtain, Choctaw and Pushmataha counties. “Antlers is dying, and Hugo is dying. We really need lawyers.” Like many states, Oklahoma faces a growing shortage of legal help in its rural communities, with more needs expected as aging lawyers retire or pass on. While estimating demand remains difficult, with many attorneys’ careers stretching past traditional retirement age, the Oklahoma Bar Association Law Schools Com- mittee touted the broad rural opportunities to 40 University of Tulsa students Friday. “There are attorneys out there who, like Bruce, are covered with work, because there’s only three or four attorneys in town, and they have been there forever,” said Dru Tate, a 2010 TU law school grad who works at Bruce Coker Small Oklahoma towns are experiencing a need and Associates of Okemah. “They don’t get a for more lawyers, providing opportunities for those lot of students fresh out of law school.” willing to relocate. Photographer: Emily Buchanan Many attorneys spoke warmly of the advan- Several attorneys said the rural workload tages rural markets provide. remains quite steady, with a wide variety of “For me, it’s the quality of life,” said 2012 TU cases readily available. law school graduate Ryan Olsen, who started “We can do almost anything you want to do, with Vinita’s Logan and Lowry as an intern other than securities, mergers and acquisi- and never left. tions,” said David Butler, a member of the Enid An avid hunter and fisher, he said he appre- firm Mitchell and DeClerck. ciates that firm’s low-key atmosphere and one- Marion Fry, a 1999 TU graduate, appreciated minute commute from his rural home. his opportunities, both as assistant district “You just never know what’s going to walk attorney in LeFlore County and a Choctaw in the door,” he said of his clients’ needs, which Nation Court of Appeals judge. range from family and criminal law to coal- “It’s just like being in a big town,” he said of mining legislation and health care. “I’ve really his Poteau posts. “People in small towns need enjoyed the variety of things I do every day.” attorneys just like people do in large cities. I

1110 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 think you’re missing an opportunity if you don’t think about small-town Oklahoma.” Newly married, with a baby on the way, Tate appreciated the flexibility provided by Coker’s law firm. “It turned into the perfect job for me,” she said. “I do drive to Okemah two days a week. The other days I work from home.” Tate said many potential positions may be identified by simply surveying existing practitioners and their ages. Several attorneys recommended opening friendly relations with rural OBA chapters, judges and their clerks to Rural law practices offer many benefits, especially learn local needs and cultures. a healthy balance of work and family life/recreation. “Some of the valuable insight you may get Photographer: Emily Buchanan would be the cases you want to stay away from, if you know what I mean,” Tate said. While salaries may trail some urban posi- Butler urged students to study demographic tions, several attorneys said earnings can still resources like the Oklahoma Directory of Law- be quite rewarding. A rural area’s lower cost of yers to discover places such as Fairview, which living balances out some salary differences, he said has one attorney 86 years old, one 70 Walker said. and one in his 40s. “Small towns are great,” Fry said. “You get to “Be persistent,” said Butler. “Do your know people, too. The people are great. They research. Learn about the community. Learn take time to listen to you. They care about you. about the lawyers who are there. You can find They want to know how you are. Not how you a spot.” are, but how you are, really.” Tate touted the non-competitive environment among rural lawyers, with many willing to farm out business to new practices, associ- About The Author ates or partners. Kirby Lee Davis is the Tulsa “They have more business than they can bureau chief for The Journal Record. handle,” said retired Ardmore District Judge This article, originally published Tom Walker, noting some rural attorneys may in The Journal Record March 31, be more willing to rent or share office space 2014 issue, is reprinted with per- than take on an associate or partner. mission from the publisher. “You’ve then got the best of both worlds,” he said. “You have the knowledge of an experienced attorney, but you’re also on your own.”

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1111 OBA AWARDS

OBA Awards: Call for Nominations

Once a year, attorneys are recognized and praised for the work they do the other 364 days of the year. That day comes during the annual meeting when the OBA Awards are given out to the state’s most outstanding attorneys and legal organizations. If you know an attorney who deserves recognition for their professionalism, selflessness or overall excellence, please nominate them. It only takes a moment to nominate someone, and it could mean the world to a bar colleague or organization that is making Oklahoma a better place. HERE’S HOW TO NOMINATE Annual Meeting 2013: David Prater of Oklahoma • Anyone can submit an award nomina- City receives the Fern Holland Courageous Lawyer tion, and anyone nominated can win. Award from 2013 OBA President Jim Stuart. • The deadline in August 15, but get your nomination in EARLY! • Nominations don’t have to be long; • You can mail, fax or email your they can be as short as a one-page nomination (pick one). Emails should letter to the OBA Awards Committee. be sent to [email protected]. • The entire nomination cannot exceed Fax: 405-416-7089. Mail: OBA Awards five single-sided, 8 1/2” x 11” pages. Committee, P.O. Box 53036, Oklahoma (This includes exhibits.) City, OK 73152 AWARDS UP FOR GRABS • Make sure the name of the person being nominated and the person (or Outstanding County Bar Association organization) making the nomination Award – for meritorious efforts and activities is on the nomination. 2013 Winners: Comanche County Bar Associa- • If you think someone qualifies for tion, Osage County Bar Association awards in several categories, pick one Hicks Epton Law Day Award – for award and only do one nomination. individuals or organizations for noteworthy The OBA Awards Committee may con- Law Day activities sider the nominee for an award in a category other than one in which you 2013 Winners: Custer County Bar Association, nominate that person. LeFlore County Bar Association

1112 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Golden Gavel Award – for OBA Commit- Neil E. Bogan Professionalism Award – tees and Sections performing with a high to an OBA member practicing 10 years or degree of excellence more who for conduct, honesty, integrity 2013 Winner: Lawyers Helping Lawyers and courtesy best represents the highest Committee standards of the legal profession 2013 Winner: Reid E. Robison, Oklahoma City Liberty Bell Award – for non-lawyers or lay organizations for promoting or publiciz- John E. Shipp Award for Ethics – to an ing matters regarding the legal system OBA member who has truly exemplified 2013 Winner: Women’s Service and Family the ethics of the legal profession either by Resource Center of El Reno 1) acting in accordance with the highest ethical standards in the face of pressure to Outstanding Young Lawyer Award – do otherwise or 2) by serving as a role for a member of the OBA Young Lawyers model for ethics to the other members Division for service to the profession of the profession 2013 Winner: Jennifer Castillo, Oklahoma 2013 Winner: Frederick K. Slicker, Tulsa City Alma Wilson Award – for an OBA mem- Earl Sneed Award – for outstanding ber who has made a significant contribution continuing legal education contributions to improving the lives of Oklahoma children 2013 Winners: Donna J. Jackson, Oklahoma 2013 Winner: Ben Loring, Miami City; D. Kenyon Williams Jr., Tulsa Trailblazer Award – to an OBA member or Award of Judicial Excellence – for members who by their significant, unique excellence of character, job performance or visionary efforts have had a profound achievement while a judge and service to impact upon our profession and/or com- the bench, bar and community munity and in doing so have blazed a trail 2013 Winner: Judge Clancy Smith, Tulsa/ for others to follow. Oklahoma City Not awarded in 2013. Fern Holland Courageous Lawyer Award – to an OBA member who has courageously performed in a manner befitting the highest ideals of our profession More Helpful Award Info Online 2013 Winners: Albert J. Hoch Jr., Oklahoma City; David Prater, Oklahoma City; Micheal Go to www.okbar.org/news/Recent/ Salem, Oklahoma City 2014/OBAAwards.aspx Outstanding Service to the Public Award to find: – for significant community service by an OBA member or bar-related entity • Nomination form (You don’t need one, but if 2013 Winners: Molly Aspan, Tulsa; Linda Scoggins, Oklahoma City you want one – you’ve got it!) Award for Outstanding Pro Bono Service • Award winner history (Helpful so you don’t – by an OBA member or bar-related entity nominate someone for an award they’ve 2013 Winners: William J. Doyle, Tulsa; already received) Gaylene McCallum, Bartlesville • Bios on the people honored to have awards Joe Stamper Distinguished Service named for them Award – to an OBA member for long-term service to the bar association or contribu- • Tips for writing stronger nominations tions to the legal profession (You want your nominee to win, right?) 2013 Winner: Steven Barghols, Oklahoma City

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1113 LEGISLATIVE NEWS

Session Nears End, Many Bills Still Active By Duchess Bartmess

Although there is less than HB 2536 Signed April 28, two weeks until the last day 2014. Adds two new sections the Oklahoma Legislature can of law regarding legal custo- constitutionally meet this ses- dy of a child with specified sion, there is a large number of limitations and exceptions. active measures still pending. HB 2790 Signed April 28, A number of those measures 2014. Modifies probate proce- continue to be monitored by dure, adds new requirement the Legislative Monitoring to the elements for petition Committee. The following is for summary administration; an update on the measures authorizes issuing letters of being watched that have been special administration with- discussed in earlier Oklahoma out a hearing; alters require- Bar Journal reports. ments for notice to creditors MEASURES NO LONGER and notice of hearing. CONSIDERED ACTIVE SB 1600 Signed April 29, No longer active are HB 2014. Adds to the locations 2686, HB 2731, HB 3368, SB where an officer with proba- 1678, SB 1775, SB 1893 and SB ble cause may, without a war- 1897. rant, arrest a person involved MEASURES SIGNED BY THE GOVERNOR in an accident who is under the influence of alcohol, intoxicating liquor, or a controlled HB 2325 Signed April 7, 2014. Extends civil dangerous substance. immunity during a time of emergency to those individuals and agencies providing shelter, SB 1904 Signed April 21, 2014. Modifies the adds the federal government to the list of definition of “Oklahoma assets” under the requesting agencies and adds tornadoes to the Family Wealth Preservation Trust Act. list of natural disasters covered by the statute. SB 1993 Signed April 28, 2014. Creates a new HB 2366 Signed April 22, 2014. Adds new law statutory responsibility for support and edu- to Title 12 creating the Oklahoma Citizens Par- cation by the mother of a child born out of ticipation Act with the stated purpose of wedlock; modifies procedures relating to addressing constitutional rights of persons to establishment of paternity of the child; includes participate in government. new language to make each parent responsible for support of child; modifies provisions HB 2405 Signed April 21, 2014. Amends section relating to responsibilities of parent whose 153 of the Governmental Tort Claims Act limit- rights have been terminated and as to child if ing liability to provisions of the act regardless adopted. of other state law or the constitution.

1114 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 MEASURES VETOED BY THE strophic event unless damage was caused by GOVERNOR the gross negligence or willful or wanton mis- HB 3001 Vetoed April 28, 2014. Specifies proce- conduct of the individual or entity rendering dures regulating visitation if a custodial parent the emergency care, aid, shelter, or assistance. prevents visitation with the noncustodial par- HB 3365 On general order in the Senate as of ent or hides the child for more than six months, March 25, 2014. New law regarding product the noncustodial parent will not have to pay liability action brought against a product man- any ordered child support or alimony for the ufacturer or seller; creates rebuttable presump- time visitation is prevented or child is hidden. tion applies for the same liability action brought MEASURES STILL CONSIDERED ACTIVE against a manufacture or seller if it is established that the product was subject to premar- SB 1475 On general order in the House as of ket licensing or approval by the federal gov- April 9, 2014. Changes the responsibilities of ernment; limits application. court-appointed fiduciary reporting requirements; alters termination provisions; and The following measures have survived the makes notice of revocation requirements. major legislative deadlines but have not been discussed and are still considered to be active: SB 1497 House amendments read April 7, 2014. Provides any person denied access to meetings HB 2667 Senate amendments read April 22, of a public body, other than executive sessions 2014 (stricken title). Modifies the list of crimes may bring a civil suit for declarative or injunc- requiring termination of parental rights; directs tive relief, or both; authorizes reasonable attor- the district attorney to file a petition or motion ney fees. for termination of parental rights no later than 90 days after the court has ordered the indi- SB 1612 House amendments read April 21, vidualized service plan, if the parent has made 2014. Pertains to interference with visitation no measureable progress in correcting the con- rights of noncustodial parent; modifies proce- ditions which caused the child to be adjudi- dures related to enforcement of visitation cated deprived. rights; requires assessment of attorney fees and court costs; provides forms. HB 2334 Senate amendments read April 23, 2014 (stricken title, stricken enacting clause). SB 1754 On general order in the House as of Amends Section 843.5 of Title 21, relates to child March 31, 2014. New language to require prop- abuse; clarifies statutory language related to the erty and casualty insurers licensed in Oklaho- definition of child abuse, child sexual abuse, and ma who write commercial insurance to pro- child sexual exploitation and adds that nothing vide, upon written request of a client of the in this bill prohibits any parent or guardian from insurer, the commercial loss history of the using reasonable and ordinary force as a means insured for the past 36 months; establishes time of discipline including, but not limited to, spank- frames and fines for failure to comply. ing, switching, or paddling. SB 2089 On general order in House as of April HB 2508 Senate amendments read April 23, 9, 2014, with title stricken. Adds requirement 2014. Provides conditions and procedures for that a landlord of a multifamily dwelling of reduction of top individual income tax rate more than four families shall maintain public and addresses adjustment of corporate income safety and protection from habitual gang or tax rate. drug activity; defines “habitual gang or drug activity;” adds authority of tenant to bring suit HB 3159 Sent to governor April 21, 2014. for failure to provide such safety and protection; Relates to sentencing powers of the court; grants district attorney authority to prosecute clarifying probation requirement by adding a landlord; district attorney given discretionary private supervision provider of other person authority to distribute monies recovered. designated by the court; mandates supervision will be initiated not exceed two years, unless a HB 2338 On general order in Senate as of petition is filed alleging a violation of any con- March 25, 2014. Exempts from liability any dition of deferred judgment or seeking revoca- individual, business, school, or church that tion of a suspended sentence, if filed during renders emergency care, aid, shelter, or other the supervision period. assistance during a natural disaster or cata-

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1115 HB 3188 Senate amendments read April 23, SB 1875 Sent to governor April 28, 2014. 2014. Provides procedures regarding limiting Addresses expungement of records. Specifies professional liability for voluntary architectur- application procedures relating to deferred al or engineering services; modifying scope of sentence; sealing of records with exceptions; immunity including immunity for persons authorizes admissibility of records for speci- producing risk-assessment reports for specific fied purposes; provides for retroactivity of structures; excluding liability for loss related to certain provisions. such services. SB 1908 House amendments read April 28, 2014. HB 3365 Sent to governor April 28, 2014. New Addresses offers of judgment, repeals section law providing certain rebuttable presumptions 1101 of Title 12 of the Oklahoma Statutes. civil in production liability actions; providing procedure statute related to procedures concern- grounds for rebutting presumptions; providing an offer, acceptance by plaintiff, notice and ing circumstances for which a product liability filing in actions to recover money only. action may be asserted; providing for liability CURRENT BILL STATUS under certain circumstances. To find the current status of a bill, scroll SB 1141 House amendments read April 22, 2014. down to the bottom of the Oklahoma State Reduces the fee for civil cases filed in district Legislature’s website at www.oklegislature. court that is credited to the Council on Judicial gov. More information about bills the OBA is Complaints Revolving Fund from $2 to $1.35. watching can be found at www.okbar.org/ SB 1538 House amendments read April 21, 2014. members/Legislative. Provides any person aggrieved by a violation of the crime of human trafficking may bring civil About The Author action against those who committed the crime, establishes statute of limitations for the cause of Duchess Bartmess practices in action; adds to definition of victim. Oklahoma City and chairs the Legislative Monitoring Commit- SB 1720 House amendments read April 28, tee. She can be reached at duch- 2014, (stricken title, stricken enacting clause). [email protected]. Provides an explanation to imposing a $40 per month fee for a suspended or deferred sentence for any offense that does not order supervision by the Department of Corrections.

1116 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 DEADLINE JUNE 20 SUBMIT NOMINations TO DIVERSITYAWARDS@ OKBAR.ORG

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1117 BAR NEWS Century-Old Letter Provides Judicial Flashback By Jarrod Beckstrom

Oklahoma Supreme Court Chief Justice Sam- the bench and 3) Quality trial courts and access uel W. Hayes sat at his desk on April 22, 1913, to justice for all Oklahomans. and penned a letter to a man he didn’t know Progress has been made in many regards, but and would never meet. In fact, that man would the challenge of protecting the system of justice not be born for another 36 years, but the con- is forever ongoing. tents of the letter and its relevance today is uncanny, almost eerie. Justice Hayes folded the letter into thirds, stuffed it in an enve- lope and placed it in a chest at the First Lutheran Church in Oklahoma City. It wouldn’t be read until 100 years later. The letter was addressed “To The Chief Justice of the Supreme Court of The State of Oklahoma, A.D., 2013.” Chief Justice Tom Colbert read the letter at a public ceremony last month, and the words reached across a century. After a well-wishing greeting, the letter’s tone turned occupa- tional and discussed Justice Hayes’ hopes for the Oklahoma judiciary in 2013. Two world wars, 25 state governors and a multitude of societal changes later – his words were poignant- ly relevant to the recent challenges to Oklahoma’s courts. “I anticipate that this greeting finds you laboring under a judiciary system, in some respects improved over our present system,” Hayes wrote and continued to list three areas in which he hoped progress had been made: 1) A non-political system of electing judges, 2) Sufficient remuneration for judges in order to attract the best legal talent to

1118 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 “I cannot tell you the uncanny foresight that The letter is a fascinating read and a remind- Justice Hayes had,” Chief Justice Colbert said er that even though we have come a long way after the reading. “It’s like he was sitting here in 100 years, we must remain vigilant in pro- with a crystal ball and seeing us sitting here tecting the third branch and citizens’ rights to today, and seeing the issues we are addressing fair and impartial courts free from political every day.” influence. Among those issues was ensuring all citizens Jarrod Beckstrom is a communications specialist have a “fair shake” in court and the ability to in the OBA Communications Department. have a fair trial. Vice Chief Justice John Reif pointed out that the three points Justice Hayes focused on in his letter were representative of the “three legs of the stool of judicial independence” and that “its strength is in all three of its legs…that was the meaning of judicial independence in 1913 and is the meaning of justice in 2014.”

Chief Justice Samuel W. Hayes

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1119 BOARD OF BAR EXAMINERS

New Lawyers Take Oath oard of Bar Examiners Chairperson Stephanie C. Jones of Clinton announces that 76 applicants who took the Oklahoma Bar Examination on February 25-26, 2014 were admitted to the Okla- Bhoma Bar Association on Tuesday, April 22, 2014 or by proxy at a later date. Oklahoma Supreme Court Chief Justice Tom Colbert administered the oath of attorney to the candidates at a swearing-in ceremony at the State Capitol. A total of 121 applicants took the examination. Other members of the Oklahoma Board of Bar Examiners are Vice-Chairperson Scott E. Williams, Oklahoma City; Monte Brown, McAlester; Robert D. Long, Ardmore; Bryan Morris, Ada; Loretta F. Radford, Tulsa; Roger Rinehart, El Reno; Donna L. Smith, Miami; and Thomas M. Wright, Muskogee. The new admittees are:

Allen, Jesse Lee Bell, Katheryn Cole Box, Tyler Corbett Bruce, Leah Katherine Caldwell, Jade Carter, Courtney Elizabeth Chaudry, Natasha Clark, Marle Nichelle Law school students from TU College of Law and other out-of-state law Clydesdale, Jonathan Mark schools take the oath to become lawyers. Compton, Cody Lee Davis, Christopher Neil Dow, Ashlyn Elizabeth Cooper, Shaquana L. Dean, Angela Dawn Doyle, Sherry Lynn Deen, Blake Thomas Duren, Dylan Tyler Cosner, William Thomas DeFehr, Matthew Richard Eick, Melissa Jeanne Curlik, Rodger Vaughn Dikeman, Jordan Wade Faith, Ross Bain Dabiri, Hossein Ferguson, Ryan Scott Flesch, Dane J Floyd, David Clay Garretson, Douglas Martin Gore, Ronald Marvin Gray, Daniel Ryan Harden, Nichole Alexandra Hill, Rebecca Ann Hopkins, Robyn Students from OU College of Law and OCU School of Law take their oath. Inhofe, Anna Lee

1120 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Jabara, Rami M. Morris, Jordan Ashley Sharp, Alex Michael Jacoby, Stephanie Noel Muzaffar, Zane Shelton, Christopher Dale Johnson, Jessica L. Norris, Brandon James Singer, Ruth Espey Jones, Hilary Ann Nuhfer-Whiteman, Jennifer Ann St John, Alexis Nicole Jordan, Bayley Carter Oglesby, Micheal Steven Stacy, Matthew Alan Jordan, Courtney Rae Payton, Rayshon Jamil Sullivan, Paula Kim Kovash, Joseph Wade Perdue, Deborah Patrice Toppah, JoEtta Marie Leizear, Alan Raymond Polchinski, Ryan William Torgerson, Julie Anne Lewis, Brad Stockton Prado, James R. Trevino, Jaime J. Loman, Caitlynn Marie Radovcic, Michael Tunder, Jennifer Lynn Luebke, Joseph Karl Raines, John D. Virgin, Emily Marie Mackert, Dean Emerson Saint, Mathew Scott Wentz, David Benjamin Martin, Amber Brianne Sams, Laura Wood, John R. Martin, Kenneth Albert Scott, Tralynna Lane Sherrill Young, John Chapman

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1121 Tr i b a l Na t i o n s – Gl o b a l Im p a c t Th e So v e r e i gnt y Sy m p o s i u m XXVII Ju n e 4 - 5, 2014 Sk i rv i n Ho t e l Ok l a h o m a Ci t y , Okl a h o m a

The Twenty-Seventh Sovereignty Symposium is dedicated to the life and work of Justice Rudolph Hargrave. ‘Cheyenne Warrior Woman’

The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court. THE SOVEREIGNTY SYMPOSIUM AGENDA Wednesday Morning AARON DUCK, Associate District Judge, former Chief Judge of 4 CLE credits / 1 ethics included Chickasaw District Court 7:30 – 4:30 Registration Honors Lounge DISCIPLINE 8:00 – 8:30 Complimentary Continental Breakfast 10:30 – 10:45 Morning Coffee / Tea Break TERRY WEST, The West Law Firm 8:30 – 5:30 PANEL A: TRIBAL NATIONS’ GLOBAL BUSINESS 8:30 – 12:00 PANEL C: TRUST LAND-SITES FOR ECONOMIC (This Panel Continues From 1:30 - 5:30) DEVELOPMENT AND GLOBAL IMPACT Crystal Room Grand Ballroom A MODERATOR: JAMES C. COLLARD, Director of Planning and MODERATORS: DOUGLAS COMBS, (Mvscogee Creek), Justice, Economic Development, Citizen Potawatomi Nation Oklahoma Supreme Court JAMES LANKFORD, Oklahoma District 5 Representative, LEAH HARJO-WARE, (Mvscogee/Yuchi), Attorney United States House of Representatives DAVID MULLON, (Cherokee), Chief Counsel, National Congress VINAI THUMMALAPALLY, Executive Director, SelectUSA of American Indians [Invited] EUGENIA CHARLES-NEWTON, (Navajo), Faculty Services LARRY V. PARMAN, Oklahoma Secretary of Commerce Librarian, Texas Tech School of Law Library, Texas Tech University ENRIQUE VILLAR-GAMBETTA, Honorary Oklahoma Consul JIM JAMES, (Ohkay Owingeh), Deputy Director of Field Opera- to Peru tions, Office of Special Trustee for American Indians, Bureau of DON CHAPMAN, (Côqayohômuwôk), President, Uncas Consulting Indian Affairs Services LLC CHRISTIE JACOBS, Representative, Indian Tribal Governments MARCUS VERNER, Director, Export Assistance Center, United Division, Internal Revenue Service States Department of Commerce DAVID M. ENGLISH, Professor, School of Law, University CHARLES ‘CHUCK’ D. MILLS, President and CEO, of Missouri Mills Machine Company KATHLEEN GUZMAN, Professor, School of Law, University of Oklahoma 8:30 – 5:30 PANEL B: A FAIR AND IMPARTIAL JUDICIARY DAVID SMITH, Kilpatrick, Townsend, and Stockton (This Panel Continues From 3:45 - 5:30) SHARLENE M. ROUND FACE, Southern Plains Regional Realty Centennial 1-2 Officer, Bureau of Indian Affairs MODERATORS: PHILLIP LUJAN, (Kiowa/Taos-Pueblo), Presiding Judge, Citizen Potawatomi Nation Tribal Court Wednesday Afternoon THOMAS S. WALKER, (Wyandotte/Cherokee), Appellate Magis- 5 CLE credits / 1.5 ethics included trate of the Court of Indian Offenses for the Southern Plains 3:30 – 3:45 Tea / Cookie Break for all Panels Region of Tribes, District Judge, (Retired), Brigadier General (Retired), Oklahoma National Guard 1:15 – 2:30 OPENING CEREMONY AND KEYNOTE ADDRESS Grand Ballroom D-F 8:30 - 9:30 THE JUDICIAL SELECTION PROCESS MASTER OF CEREMONIES: STEVEN W. TAYLOR WILLIAM P. BOWDEN, Major General (Retired), United States Justice, Oklahoma Supreme Court Air Force, Baker Commission Member PRESENTATION OF FLAGS CATHY CHRISTENSEN, Past President (2012), Oklahoma HONOR GUARD: KIOWA BLACK LEGGINGS SOCIETY Bar Association DRUM: SOUTHERN NATION 9:30 - 12:00 THE TRIBAL COURT PERSPECTIVE CAMP CALL: GORDON YELLOWMAN CARLA PRATT, Associate Dean for Academic Affairs, Nancy J. (Cheyenne), Chief, Council of the 44, Director, Cheyenne and LaMont Faculty Scholar, Professor, Dickinson Law School, Arapaho Tribes Language Program Pennsylvania State University INVOCATION: ROBERT E. HAYES, JR. LISA OTIPOBY-HERBERT, (Comanche), Justice, Kaw Nation Bishop of the United Methodist Conference of Oklahoma Supreme Court, Magistrate, Court of Indian Offenses, Bureau of MARY FALLIN Indian Affairs Governor, State of Oklahoma

1122 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 RENÉE DEMOSS DAVID WILSON, (Choctaw), Reverend, United Methodist President, Oklahoma Bar Association Conference Superintendent, Oklahoma Indian Missionary TOM COLBERT Conference Chief Justice, Oklahoma Supreme Court GORDON YELLOWMAN, (Cheyenne), Chief, Council of the 44, ROBERT HENRY Director, Cheyenne and Arapaho Tribes Language Program President, Oklahoma City University C. BLUE CLARK, (Mvscogee Creek), Native American Legal INTRODUCTION OF CHIEF JUSTICE BEVERLEY MCLACH- Research Center, College of Law, Oklahoma City University LIN AND PRESENTATION OF HONORARY DEGREE FROM HARVEY PRATT, (Cheyenne), Chief, Council of the 44, OKLAHOMA CITY UNIVERSITY Oklahoma State Bureau of Investigation KEYNOTE: BEVERLEY MCLACHLIN, P.C. BARBARA SMITH, (Chickasaw), Justice, Chickasaw Nation Chief Justice, Supreme Court of Canada Supreme Court PRESENTATION OF AWARDS: YVONNE KAUGER 6:30 – 8:30 ART OF THE JUDICIAL CENTER Justice, Oklahoma Supreme Court Book Signing Reception HONOR AND MEMORIAL SONG FOR JUSTICE RUDOLPH Oklahoma Judicial Center, 2100 North Lincoln Boulevard HARGRAVE: SOUTHERN NATION CLOSING PRAYER: GORDON YELLOWMAN Thursday Morning (Cheyenne), Chief, Council of the 44, Director, Cheyenne and 4.5 CLE credits / 1 ethics included Arapaho Tribes Language Program 7:30 – 4:30 Registration Honors Lounge 8:00 – 8:30 Complimentary Continental Breakfast 2:30 - 3:30 ROUNDTABLE DISCUSSION 10:30 – 10:45 Morning Coffee / Tea Break Grand Ballroom D-F 8:30 – 10:30 PANEL A: THE ICWA AND OTHER MODERATOR: ROBERT HENRY CHILDREN’S ISSUES President, Oklahoma City University Grand Ballroom D-E BEVERLEY MCLACHLIN, P.C. Chief Justice, Supreme Court of Canada MODERATOR: JOHN FISCHER, Judge, Oklahoma Court of TOM COLE Civil Appeals Congressman, 4th District of Oklahoma, United States House STEVEN HAGER, Director of Litigation, Oklahoma Indian of Representatives Legal Services GREGORY E. PYLE SUE TATE, Court Improvement Project Coordinator, Oklahoma (Choctaw), Chief (Retired), Choctaw Nation of Oklahoma Administrative Office of The Courts W. RICHARD ‘RICK’ WEST, JR. RITA HART, (Choctaw/Jicarilla Apache), Tribal Program Manager, (Cheyenne), President and CEO, Autry National Center Oklahoma Department of Human Services TERRY NEESE DIANE HAMMONS, (Cherokee), Assistant Professor, Northeast- Founder and CEO, Institute for the Economic Empowerment ern State University of Women TSINENA BRUNO-THOMPSON, (Cherokee), President & CEO, ENOCH KELLY HANEY Oklahoma Lawyers for Children (Seminole), Master Artist, Former Principal Chief, Seminole 10:45 - 12:30 PANEL A: GAMING (This Panel Continues Nation of Oklahoma, Former State Senator, Oklahoma Senate from 1:30 - 5:30 3:45 – 5:30 PANEL A: TRIBAL ECONOMIC DEVELOPMENT- Grand Ballroom D-E TRIBAL AND LOCAL GOVERNMENT COOPERATION MODERATORS: MATTHEW MORGAN, (Chickasaw), Director Crystal Room of Gaming Affairs, Division of Commerce, Chickasaw Nation MODERATOR: JAMES C. COLLARD, Director of Planning and NANCY GREEN, (Choctaw), Green Law Firm Economic Development, Citizen Potawatomi Nation OPENING REMARKS GAVIN CLARKSON, (Choctaw), Associate Professor, College of JONODEV OSCEOLA CHAUDHURI, (Mvscogee Creek), Business, New Mexico State University Acting Chairman, National Indian Gaming Commission DIANE LUPKE, International Economic Development Council DANIEL LITTLE, Associate Commissioner, National Indian JANIE HIPP, (Chickasaw), Director, Indigenous Food and Gaming Commission Agriculture Initiative, School of Law, University of Arkansas ERNEST L. STEVENS, JR., (Oneida), Executive Director, TIM GATZ, Deputy Director, Oklahoma Department of National Indian Gaming Association Transportation JASON GILES, (Mvscogee Creek), Executive Director, TERRY NEESE, Founder and CEO, Institute for Economic National Indian Gaming Association Empowerment of Women JONNA KAUGER KIRSCHNER, Commercial Counsel, 8:30 – 10:30 PANEL B: CRIMINAL LAW Chickasaw Nation Industries, Inc. Centennial 1-2 ALISHA MURPHY (Navajo), Buder Scholar, Kathryn M. Buder MODERATORS: CLANCY SMITH, Vice-Presiding Judge, Center for American Indian Studies, Washington University Court of Criminal Appeals 3:45 – 5:30 PANEL B: A FAIR AND IMPARTIAL JUDICIARY SANFORD C. COATS, United States Attorney, Western District (A Continuation of the Morning Panel) of Oklahoma Centennial 1-2 BARBARA ANNE SMITH, (Chickasaw), Justice, Chickasaw Nation Supreme Court 3:45 – 5:00 ETHICS ADDRESS ARVO MIKKANEN, (Kiowa/Comanche), Assistant U.S. Attorney, JOHN REIF, Vice-Chief Justice, Oklahoma Supreme Court Western District of Oklahoma ALISON CAVE, Vice-President, Oklahoma Attorneys DARREN A. CRUZAN, (Miami), Deputy Director, Office of Mutual Insurance Company, President, The Sovereignty Justice Services, Bureau of Indian Affairs Symposium Inc. ROBERT DON GIFFORD, (Cherokee), Assistant U.S. Attorney, 3:45 – 5:30 PANEL C: TRUTH AND RECONCILIATION Western District of Oklahoma Grand Ballroom A TRENT SHORES, (Choctaw), Assistant U.S. Attorney, Northern District of Oklahoma, Chief Judge, Kaw Nation District Court MODERATOR: NOMA GURICH, Justice, Oklahoma Supreme SHANNON COZZONI, Assistant U.S. Attorney, Northern Court District of Oklahoma ROBERT E. HAYES, JR., Bishop, United Methodist Conference of Oklahoma

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1123 10:45 - 12:30 RESTORATIVE JUSTICE AND HEALING THE DEAN LUTHEY, Gable Gotwals, General Counsel, Oklahoma COMMUNITY THROUGH PEACE MAKING Indian Gaming Association MICHAEL COLBERT SMITH, (Chickasaw), Smith & Smith JASON GILES, (Mvscogee Creek), Executive Director, National Attorneys at Law Indian Gaming Association BRETT TAYLOR, Deputy Director, Technical Assistance, Center JAMES MAIDA, CEO, GLI Gaming Laboratories International for Court Innovation SHEILA MORAGO, (Gila River), Executive Director, Oklahoma ERIKA SASSON, Peacemaking Program Director, Tribal Justice Indian Gaming Association Exchange, Center for Court Innovation IMPACT OF RECENT COURT CASES ON TRIBAL BRETT LEE SHELTON, Staff Attorney, Native American IMMUNITY AND LAND INTO TRUST Rights Fund WILLIAM NORMAN, (Mvscogee Creek), Hobbs, Straus, 8:30 – 12:30 PANEL C: THE ASIAN CONNECTION (This Panel Dean and Walker Continues From 1:30 - 5:30) DEAN LUTHEY, Gable Gotwals, General Counsel, Oklahoma Grand Ballroom A Indian Gaming Association MODERATOR: ENOCH KELLY HANEY, (Seminole), Master ALAN P. MEISTER, Principal Economist, Nathan Associates Artist, Former Principal Chief, Seminole Nation of Oklahoma, D. MICHAEL MCBRIDE, III, Crowe Dunlevy Former State Senator, Oklahoma Senate ELIZABETH HOMER, (Osage), Homer Law KAI (KENNETH) ZHENNAN, CEO, Creativity Group 1:30 – 5:00 PANEL B: MULTIFACETED EDUCATIONAL CHEN JIGUO, President, Shanghai Coal Chemical Group PROGRAMS TANG PEIYUN, Vice-President, Shanghai Nanpu Food Group Grand Ballroom B WANG CHUNFENG, President, Shanghai Xin Trade Co. Ltd. MODERATOR: JOHN ROBERT HARGRAVE, President, TANG ZHUANGQUN, CEO, Shanghai Zhe Jia Real Estate East Central University Co. Ltd. ROBERT HENRY, President, Oklahoma City University 8:30 – 12:30 PANEL D: INDIGENOUS PEOPLES’ RIGHT GLEN D. JOHNSON, Chancellor, Oklahoma State Regents TO SELF-DETERMINATION for Higher Education Grand Ballroom B SUSAN PADDACK, State Senator, Oklahoma State Senate MODERATORS: JERRY GOODMAN, Judge, Oklahoma Court HENRIETTA MANN, (Cheyenne), President, Cheyenne and of Civil Appeals Arapaho Tribal College ALEX SKIBINE, (Osage), S.J. Quinney Professor of Law, ROBERT SOMMERS, Oklahoma Secrectary of Education and College of Law, University of Utah Workforce Development, Director, Oklahoma Department of KRISTEN CARPENTER, Associate Professor and Co-Director, Career and Technology Education American Indian Law Program, School of Law, MATT LITTERELL, Interim Business and Industry Services University of Colorado Director, Tulsa Technology Center ANGELA R. RILEY, (Potawatomi), Professor, School of Law, DIANE HAMMONS, (Cherokee), Assistant Professor, Criminal UCLA, Director, American Indian Studies Center/American Justice, Northeastern State University Indian Studies Joint JD/MA Degree Program ANASTASIA PITTMAN, (Seminole), Representative, District 99, ROBERT J. MILLER, (Eastern Shawnee), Professor, Sandra Day Oklahoma House of Representatives O’Connor College of Law, Arizona State University JERRY MCPEAK, (Mvscogee Creek), Representative, District 13, Oklahoma House of Representatives 8:30 – 12:30 PANEL E: SOVEREIGNTY, OKLAHOMA TRIBES, AND COMPACTING 1:30 – 5:30 PANEL C: THE ASIAN CONNECTION Grand Ballroom C (A Continuation of the Morning Panel) Grand Ballroom A MODERATORS: W. KEITH RAPP, Judge, Court of Civil Appeals MODERATOR: ENOCH KELLY HANEY, (Seminole), JACQUE SECONDINE-HENSLEY, (Kaw), Native American Master Artist, Former Principal Chief, Seminole Nation Liaison, Office of the Governor, State of Oklahoma of Oklahoma, Former State Senator, Oklahoma Senate C. BLUE CLARK, (Mvscogee Creek), Native American Legal KAI (KENNETH) ZHENNAN, CEO, Creativity Group Research Center, College of Law, Oklahoma City University CHEN JIGUO, President, Shanghai Coal Chemical Group TAIWAGI HELTON, Professor, College of Law, University of TANG PEIYUN, Vice-President, Shanghai Nanpu Food Group Oklahoma, Special Justice, Cheyenne and Arapaho Tribes WANG CHUNFENG, President, Shanghai Xin Trade Co. Ltd. Supreme Court TANG ZHUANGQUN, CEO, Shanghai Zhe Jia Real Estate CASEY ROSS-PETHERICK, (Cherokee), Associate Professor, Co. Ltd. College of Law, Oklahoma City University 1:30 – 5:30 PANEL D: TRIBAL LANGUAGE PRESERVATION SUSAN WORK, (Choctaw), Hobbs, Straus, Dean & Walker, LLP IN THE TWENTY-FIRST CENTURY COLLINE WAHKINNEY-KEELY, (Comanche), Director, Centennial 1-2 Oklahoma Indian Legal Services MODERATOR: DEBORAH B. BARNES, Chief Judge, STEPHEN GREETHAM, General Counsel, Chickasaw Nation Division II, Court of Civil Appeals Commerce Department, Chickasaw Nation Executive GUS PALMER, JR., (Kiowa), Associate Professor, Anthropology, Department Interim Director, Native American Studies, University of Thursday Afternoon Oklahoma 4.5 CLE credits / 0 ethics included BLAKE WADE, Chief Executive Officer, American Indian 3:30 – 3:45 Tea / Cookie Break for all Panels Cultural Center and Museum, President, Oklahoma Business 1:30 – 5:30 PANEL A: GAMING (A Continuation Roundtable of the Morning Panel) JEROD IMPICHCHAACHAAHA’ TATE, (Chickasaw), Grand Ballroom D-E Composer, Composer-in-Residence for the Chickasaw Summer Arts Academy MODERATORS: MATTHEW MORGAN, (Chickasaw), Director GORDON YELLOWMAN, (Cheyenne), Chief, Council of the 44, of Gaming Affairs, Division of Commerce, Chickasaw Nation Director, Cheyenne and Arapaho Tribes Language Program NANCY GREEN, (Choctaw), Green Law Firm ROY BONEY, JR., (Cherokee), Cherokee Nation Language DISCUSSION ON THE CURRENT AND FUTURE STATE Program OF INTERNET GAMING BUNKY ECHO-HAWK, (Pawnee/Yakama), Artist KIM ARNOLD, COO, The Innovation Group ANASTASIA PITTMAN, (Seminole), Representative, District 99, Oklahoma House of Representatives

1124 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 TRIBAL NATIONS — GLOBAL IMPACT THE SOVEREIGNTY SYMPOSIUM XXVII June 4 - 5, 2014 Oklahoma City, Oklahoma

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1125 BOOK REVIEW

One Murder Too Many By Laurence J. Yadon and Robert Barr Smith Reviewed by Judge Allen Welch

Roger Wheeler and Whitey One story within this story Bulger were both born in Bos- regards Telex’ civil action ton, three years and 14 miles against IBM, which em- apart. Their two lives inter- ployed a team of 300 and 50 sected tragically in the park- lawyers, in that case. In a ing lot of Southern Hills 222-page opinion, a federal Country Club in Tulsa, Okla., judge awarded Telex $353 on May 27, 1981. This story is million, and awarded a judg- about Wheeler’s murder, one ment to IBM for their coun- murder too many. terclaim in the amount of $22.9 million. The 10th Cir- The authors painstakingly cuit Court of Appeals re- detail a fascinating history of versed the trial court’s judg- “the Irish Mafia” in south ment on behalf of Telex — Boston, a history replete with but not the judgment for random and horrific acts of IBM. The two sides eventu- violence. Whitey Bulger, a ally settled in a “walk away,” petty thief, became the undis- without any money exchang- puted boss of the south Bos- ing hands. ton mafia, largely by attrition after his colleagues and com- 248 Pa g e s * Ha r d c o v e r Wheeler turned to the petitors were killed. He “liked $24.95 World Jai Alai league, as an to hurt people and watch them ISBN: 978-1455618194 investment. He soon learned cringe in fear.” When a presi- Pe l i c a n Pu b l i s hin g that organized crime was dential commission on orga- skimming profits — and that nized crime described him as a organized crime knew that “bank robber, drug trafficker and murderer,” he knew. Wheeler’s pilot inspected his plane for Bulger complained to associates “I’m no drug bombs. Wheeler bought a gun. His fears were trafficker.” warranted. “This guy won’t take our money,” one henchman told Bulger, “we need to get rid Roger Wheeler moved to Tulsa in 1948, to take of him.” a job with Standard Oil Co. By 1965, he was the chairman, CEO and sole shareholder of Telex. The two shooters had murdered at least 18 He owned a 4,500 square foot house in Nan- people before they shot Wheeler. They tracked tucket and an 11,000 acre ranch in Wyoming. His him down at his regular Wednesday afternoon personal wealth was estimated at $60 million. golf game at Southern Hills. Referring to his golf buddies at the conclusion of his outing, Wheeler

1126 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 turned to another friend and said “These guys him and admitted to 20 murders was sentenced are killing me.” Those were evidently his last to 12 years. words. Wheeler was shot in the head shortly Several OBA members are mentioned in the after starting his car. book, including Tim Harris and Joel Wohlege- Bulger and his girlfriend avoided capture for muth. The authors are also members of the Okla- 20 years, and went undercover at a modest homa Bar Association. Robert Barr Smith was a apartment in Santa Monica, Calif. A former professor for many years at the OU College of neighbor in Iceland saw a story about Bulger Law. and his girlfriend on CNN, and recognized her Readers will relish tales about the civil trial neighbors who had fondly taken care of her cat. and the criminal trial, the breathtaking audacity “A cat got me captured,” Bulger later said. The of Whitey Bulger and “the Boston Irish mafia,” police cornered Bulger in his garage. In his and the tragic event in the parking lot of South- apartment, police found 30 shotguns, rifles and ern Hills Country Club. pistols, and $822,198 in cash. Judge Welch is a special judge in Oklahoma Coun- Bulger was convicted on 31 counts, including ty and serves on the OBA Board of Editors. 11 murders. The associate who testified against

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1127 FROM THE EXECUTIVE DIRECTOR

Why Every Vote Matters By John Morris Williams

“Why Every Vote Matters” branches that garner such It is our job to ensure our sys- was the ABA theme for Law admiration. Although they are tem of government maintains Day this year. It is fitting that important and should be much credibility. Governors, courts voting was the subject for this respected, it is our courts and and legislatures sometimes get year. In our democracy, votes legal system that differentiate it wrong on an issue. History matter. There are many differ- us from the rest of the world. has shown people will keep ent kinds of votes. There are Dictatorships have an executive faith with an imperfect system votes for political office; there leader. Even harsh totalitarian as long as it strives for perfec- are votes in the Legislature. systems have some sort of leg- tion. On the other hand, a There are votes even at the islative body. It is that wonder- system where the result is nation’s highest court. At times ful and magnificent document obtained by bribery or corrup- even the highest courts vote to called the Constitution and its tion alienates and encourages determine if a popular election application by the court that people to mistrust a system of was properly conducted, and has served us well to preserve government. In short, it is not the votes properly counted. our democracy. credible. Even the anchor of our justice No one wants to vote in an system, juries cast votes. election in which the result is As most of you are aware, preordained. No one wants to Oklahoma Bar Association It is our job to participate in a judicial system members vote for six members in which the result is preor- of the Judicial Nominating ensure our system of dained. Most everyone on a Commission. The ability to government maintains ballot or who is a party to a maintain your right to vote on legal action wants to win. But, those elections was put into credibility. at what price? It is the role of question this spring. Thankful- lawyers to make sure that the ly, the effort to take away this zeal for victory does not over- important balance in judicial power the rule of law. selection failed. The lawyer Sometimes courts (and even I can think of no higher call- members of the JNC are much voters) get it wrong, but over ing than to ensure the votes of like jurors. They see the evi- the long haul as long as law- citizens in our democracy are dence firsthand of what makes yers stand in the ready to make cast without fear of dishonesty a great judge. Lawyers who every vote count, we have a and are not counted based on regularly appear before judges, strong chance of hanging on to the color of the hand that cast regardless of who they are our democracy. It is our job to them. The men and women in representing, best know the make the votes of the unpopu- uniform for our country every- demeanor, lack of bias and lar, the minority and the down- day stand to pay the ultimate respect for the rule of law of trodden just as important and prices to ensure that our sitting judges. count just the same as the votes democracy is safe from foreign of the popular, the majority and The world envies our country invaders. It is our job as mem- the affluent. for our legal system. It is not bers of the bar to ensure that our executive or legislative politics and political games-

1128 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 manship do not erode or undo cast in a presidential election or that for which many have given a jury room is freely given and their lives. fairly counted. It is our job as public citizens to ensure that all Every vote matters. The fate votes cast be done so by an of our nation rests upon this educated electorate who by To contact Executive Director premise. It is the job of lawyers their own experience know and Williams, email him at johnw@ to make sure a vote whether believe every vote matters. okbar.org.

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1129 LAW PRACTICE TIPS What We Saw at ABA TECHSHOW 2014 By Jim Calloway

ABA TECHSHOW 20141 was reported to have had an all-time record number of registered attendees, including at least seven from Oklahoma. with a co-presenter, nology,” Ms. Clayton said. There are other legal technolo- which means a lot of “But they understood that we gy conferences, but ABA experts are needed to were lawyers, first and fore- TECHSHOW is special. No fill the 50–plus sessions, most, and kept it simple.” other conference brings together so many of the peo- 2) Avoid CLE presentations “The show was fast paced ple who write and blog about by vendors in most and each hour there were at technology, do technology cases, but allow some least two or three sessions I consulting for law firms and clearly identified vendor wanted to attend, so instead are experts in their field. The showcases which are not I had to make hard choices,” attendees include some of the for CLE credit, she said. “There were more software, hardware and ser- sharpest people I have had the 3) Actively recruit new first vice vendors than I expected. pleasure to meet. Of course, time speakers, and I haven’t missed an ABA They gave me a sense of TECHSHOW since my first 4) Truly engage the attend- where legal technology was one in 1999 and I am a former ees. What other confer- heading. If there was a buzz- ABA TECHSHOW chair, so ence has small group word, it was ‘the cloud.’ There I am biased. dinners with the speak- were cloud applications for ers that attendees can computing, storage and whole In this column, some of us sign up to attend? office solutions. At this point, will share our ABA TECH- I am not completely sold on SHOW experiences and read- Cheryl Clayton of Noble cloud computing in large part ers will also be provided with is vice chair of the OBA Law because I practice in an area links to lists of great apps for Office Management and where Internet services can lawyers and online resources Technology Section and was be spotty. But it looks like the that you can put to use right a first-time attendee at ABA wave of the future.” now. You will not want to skip TECHSHOW this year. We the endnotes section on this stopped to talk in the exhibit “The next buzz word was column and you are reminded hall for a moment, and I iPad,” Ms. Clayton said. that we will post this to the knew she was really enjoying “Lawyers have taken the iPad Management Assistance Pro- TECHSHOW when she said, and made it their own. I know gram page at www.okbar.org “I’m sorry. I’ve got to go. I love mine. Whether for iPad with live links within the next There’s just not enough time.” or Android tablets, more and few weeks. and hurried off to see more more apps are being devel- vendors. So I asked her to oped that are particularly use- The formula for ABA share her impressions when ful to lawyers. And something TECHSHOW is really simple: we returned to Oklahoma. really special happened at the show. My beloved WordPer- 1) Only allow each person “Initially, I felt intimidated to do a couple of presen- fect is not down and out, by program presenters clearly despite Jim Calloway’s predic- tations, usually paired in the forefront of legal tech-

1130 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 tions to the contrary. Corel announced a new app for the iPad, and you can try it out by going to iTunes and downloading the free trial “Word- Perfect X7” iOS app. Granted, it will require a few fixes but as an iPad word processing app, it is a game changer in my opinion.” “I am excited about incorporating what I learned at ABA TECHSHOW into helping to plan a CLE for litigators. But it will just be a small bite of the big apple. Since the Oklahoma Bar Association is an event Don’t Forget – Register for the promoter of the annual ABA TECHSHOW, we need a larger OBA Solo & Small Firm Conference! presence there. On top of making a serious dent in MCLE Several additional sponsors have been added for the 2014 OBA requirements, the show is just Solo & Small Firm Conference. We hope for record conference plain fun. The speakers are attendance June 19-21 at the Hard Rock Hotel and Casino in entertaining, the food good Tulsa. Check out the conference schedule and speakers at and the hotel first class. I want www.okbar.net/solo. to go back,” she concluded. Conference Sponsors Steven J. Goetzinger of Okla- homa City also attended the conference. “The ABA Co-Producer TECHSHOW exceeded my expectations,” Mr. Goetzinger Oklahoma Attorneys Mutual said. “Until I attended the Insurance Company show, I considered myself fairly tech-savvy and proficient at Gold Sponsors utilizing web-based legal resources. But after attending Currington Mortgage Company seminars on free legal research Gable Gotwals websites, Word on iPad for lawyers and iPad demonstra- Silver Sponsors tive evidence, among many others, I walked away realiz- Beale Professional Services ing that I had been living in Family Law Section the tech dark ages. Anyone General Practice, Solo and Small Firm Section who practices law, whether Legal Directories Publishing Company, Inc. in a small or large firm, or Law Office Management and Technology Section for a company, will benefit by attending this show and Bronze Sponsors seminars such as these.” ABA Retirement Funds Jeffrey Taylor (aka The Beyond Square One Droid Lawyer) spoke at ABA BreezeLit TECHSHOW again this year. FindLaw, a Thomson Reuters business He posted “ABA TECHSHOW LawPay 2014 Round-up and Review” RocketMatter on his blog the day after the Tabs 3 Software show concluded.2 He also live

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1131 called “iPad in Action” even though it really has no with Tom Mighell, who business purpose for lawyers. I spoke on ‘How to Add has written several books You stand your iPhone on end about lawyers using iPad and it uses the ringer vibrator Document Assembly into devices. I’ll be speaking to slowly spin the phone Your Workflow’ and a about document assem- around to take to take 360 degrees pictures.8 Jeff also session called ‘iPad in posted some pictures he took Action’ with Tom Mighell, at ABA TECHSHOW.9 I would not mention that here except who has written several for the fact that vendor MyCase hired an artist to pro- books about lawyers using duce live murals during sever- iPad devices. al of the presentations and the results were interesting. You can see a couple of examples at http://goo.gl/xxP5Mr. Reid Trautz, another former TECHSHOW chair, posted his “Top Ten Takeaways from ABA TECHSHOW 2014” on his blog.10 Some of you will remember Mr. Trautz from his presentations at past OBA Solo & Small Firm Conferences and the Technology Fair. At the blogged3 several of the presen- 2011 OBA Annual Meeting, he tations. (Interestingly I could bly at the OBA Solo & Small noted that several of the pro- not get the live blog page to Firm Conference this summer. grams centered on workflow. open in Internet Explorer, but ABA TECHSHOW con- Mr. Trautz said that a better it worked fine in Chrome.) cludes each year with a panel term than workflow is “busi- Needless to say, he appears to program called 60 Sites in 60 ness process improvement” have attended or presented at Minutes. After more than two and predicts we will all be all of the Android sessions. days of a flood of technology hearing more about BPI in He did one shootout session information, this program the future. He highlighted I wish I could have attended, gives the audience a chance The Form Tool’s Doxsera,11 “Office 365 v. Google Apps.” for a few laughs as really Wordrake12 and a newcomer, You can download the materi- goofy websites are mixed in ITimeKeep Mobile app,13 as als for his Android customiza- with new important websites examples of BPI focus. tion presentation.4 Many of and web services. The com- you will also be interested in plete list is online on the ABA Of course, writing is not the downloading the apps he TECHSHOW website at only way that people share showed off with Dan Siegel in http://goo.gl/vXhLM4. what they learned at ABA the Saturday morning shoot- TECHSHOW. Tom Mighell out between mobile devices. I mentioned that one Satur- and Dennis Kennedy did an Their session was “60 Android day morning slot was broken “ABA TECHSHOW 2014 Apps and Widgets.”5 Mr. Tay- down by which mobile device Wrapup” podcast on their lor will be speaking at the one uses. The largest crowd Kennedy-Mighell Report,14 OBA Solo & Small Firm Con- attended “60 iOS apps in 60 while Sharon Nelson and I Minutes.”6 ference this summer on “The It showcased a interviewed ABA TECH- great collection of apps. Jeff Google-Powered Law Office.” SHOW 2014 Chair Natalie Richardson posted the list of Kelly for “Headlines from I spoke on “How to Add all of the apps profiled at his ABA TECHSHOW 2014” on Document Assembly into Your iPhoneJD blog.7 The app Workflow” and a session Cycloramic impressed us all, our Digital Edge: Lawyers and Technology podcast.15

1132 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 There are a good number ing: Legal Technology on its model rules so that stu- of Canadians at ABA TECH- the Rise.”17 dents would be required to SHOW every year and some- take legal ethics in law school, The two keynote sessions times visitors from other would have to pass a special were very different in subject countries. Philippe Doyle ethics examination before they matter. Rick Klau is a partner Gray, a barrister from Sydney, could practice law, and would at Google Ventures where he Australia, attended his third have to take mandatory ethics helps lead Startup Lab. Rick consecutive ABA TECHSHOW CLEs in order to keep their Klau has attended and spoken and was a speaker this time. licenses.”18 at TECHSHOW many times in He was the first-ever ABA the past so it was good to see We hope to see you at ABA TECHSHOW speaker from him back. His three lessons TECHSHOW sometime in the Australia. I sat in on his ses- for lawyers from his talk were future. That is just a peek at sion on Evernote and really data always beats opinion, this year’s event. But if you need to find the time to put sometimes you just need to haven’t had enough, a link his tips into practice. He has say no and always think big. to 50 more posts about ABA developed a free web resource While those may sound like TECHSHOW 2014 may be titled “How to Optimize Your something from a fortune viewed on the Business of Use of Evernote,” with links to cookie, his explanation was Law Blog at http://goo.gl/ his videos, writings and other actually quite impressive. No kDyVk9. I’m sure you are not observations about Evernote. matter how smart you are, surprised that a lot of ABA It is online at www.philippe your opinion is just an educat- TECHSHOW attendees write doylegray.com/content/ ed guess. A survey of the mar- for blogs. view/55/45/. Here is how he ketplace will give the correct describes Evernote on the site: Mr. Calloway is OBA Manage- answer. If you are trying to ment Assistance Program direc- “Evernote is software that is decide which phrase of two tor. Need a quick answer to a tech a digital extension to your bio- contenders works best for problem or help resolving a man- logical memory. Remembering marketing on your website, agement dilemma? Contact him ideas becomes trivial…The buy a Google AdWord for one at 405-416-7008, 800-522-8065 intellectual demands on pro- on one week and then the or [email protected]. It’s a free fessional life can be over- other on the next to see which member benefit! whelming. Great minds are one “sells out” more quickly. best deployed to the intracta- Admittedly, that is a very 1. www.techshow.com ble problems to hand. But life simple example, but a lawyer 2. http://goo.gl/9i2Apb 3. http://goo.gl/VmXHEK is made up of lots of little trying to catch a consumer’s 4. http://goo.gl/5n3RtO things that have to be remem- attention cannot stop being a 5. http://goo.gl/FLmHEz bered. Evernote stops you lawyer and adopt the consum- 6. In a real sign of the times, there were only three people present at the Blackberry ses- wasting effort on remembering er’s state of mind. sion that morning. all those little things, and lib- 7. http://goo.gl/7F9aZF Former White House Coun- 8. http://goo.gl/7Vo2y8 erates your imagination.” sel John Dean spoke of his 9. http://goo.gl/xxP5Mr 10. http://goo.gl/ajc9U5 ABA TECHSHOW is also a insider view of the Watergate 11. www.theformtool.com time when many legal soft- scandal. “How in God’s name 12 www.wordrake.com — Wordrake provides a discount to OBA members. See www. ware vendors announce new could so many lawyers get okbar.org/members/Members/Benefits.aspx. or updated products. For involved in something like 13. See a recent review of iTimeKeep at http://goo.gl/pIV36P information on new products this?” was the quote we will 14. http://legaltalknetwork.com/podcasts/ and the features of existing all remember from his speech. kennedy-mighell-report 15. http://legaltalknetwork.com/podcasts/ products that were showcased Twenty-one lawyers, including digital-edge there, see Bob Ambrogi’s Dean himself, were caught up 16. http://goo.gl/kwzGi2 “Top 10 Product Announce- in Watergate. It was after 17. www.attorneyatwork.com/legal-tech 16 nology-on-the-rise ments at ABA TECHSHOW” Watergate, he said that “the 18. http://goo.gl/cwzAzN and Kandy Hopkins’ “Trend- American Bar Association made the decision to modify

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1133 ETHICS & PROFESSIONAL RESPONSIBILITY

Trust Account Overdraft Reports: Your Duty to Update Trust Account Information By Gina Hendryx

The Office of the General response, an investigation may has been negligible after Counsel, under the supervi- be commenced. Repeated completion of the program. sion of the Professional overdrafts due to negligent Oklahoma licensed attorneys Responsibility Commission, accounting practices have should remember that they oversees the Trust Account resulted in referral to the Dis- have a continuing duty to Overdraft Reporting require- cipline Diversion Program for update trust account informa- ments of Rule 1.15(j) - (m) of instruction in proper trust tion. ORPC 1.15 (g) states: the Oklahoma Rules of Pro- accounting procedures. fessional Conduct (ORPC), “Effective January 1, 2009, In 2013, 144 notices of over- 5 O.S. 2011, ch. 1, app. 3-A. all members of the Bar who draft of a client trust account are required under the Okla- This rule requires lawyer were received by the Office of homa Rules of Professional trust accounts to be main- the General Counsel. A review Conduct, to maintain a trust tained in financial institutions of the bar graph reflects that account for the deposit of cli- approved by the Office of the the reported trust account ents’ funds entrusted to said General Counsel. A financial overdrafts have significantly lawyer, shall do so and furnish institution attains this approv- and steadily decreased over information regarding said al by agreeing to provide a the past four years. This account(s) as hereinafter pro- report to the office in the event decrease is due, in part, to the vided. Each member of the Bar any properly payable instru- successful completion of the shall provide the Oklahoma ment is presented against a Discipline Diversion Program Bar Association with the name lawyer trust account contain- by previously identified attor- of the bank or banks in which ing insufficient funds, irre- neys with multiple overdrafts. the lawyer carries any trust spective of whether or not The recidivism rate for same account, the name under the instrument is honored. Trust account overdraft reporting agreements are submitted by depository institutions and the institutions forward reports of insufficient fund overdrafts simultaneously with and within the time provided by law for notice of the dishonor. Notification trig- gers a general inquiry to the attorney requesting an explanation for the deficient account. Based upon the

1134 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 which the account is carried information requested by the Once you have entered the and the account number. The Oklahoma Bar Association, my.OKBar section of the OBA lawyer or law firm shall pro- Oklahoma Bar Foundation website, you may review your vide such information within or the Office of the General roster information, dues and thirty (30) days from the date Counsel of the Oklahoma Bar MCLE status, as well as report that said account is opened, Association will be grounds your trust account informa- closed, changed, or modified. for appropriate discipline.” tion. All client trust accounts The Oklahoma Bar Association should be reported on the You may check your account will provide online access form. This includes IOLTA reporting status on the OBA and/or paper forms for mem- accounts and non-IOLTA website. Go to www.okbar.org bers to comply with these accounts. and scroll down to login to reporting requirements. Pro- “my.OKBar.org.” This is a If you do not have Internet vision will be made for a password-protected site and access or wish to report chang- response by lawyers who do will require your OBA number es directly, you may contact not maintain a trust account and PIN (number or pass- Tracy Sanders with the OBA at and the reason for not main- word) to enter. New lawyers 405-416-7080 or 800-522-8065 taining said account. Informa- receive their PINs in new and request a paper form to tion received by the Associa- attorney materials or all OBA report your trust account tion as a result of this inquiry members may obtain a PIN by information. shall remain confidential requesting same from the site, except as provided by the Ms. Hendryx is the OBA by emailing membership@ Rules Governing Disciplinary general counsel. okbar.org or by calling Proceedings. Failure of any 405-416-7000 or 800-522-8065. lawyer to respond giving the

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1135 BAR FOUNDATION NEWS Supporting the Advancement of our Legal Profession By Dietmar K. Caudle

As the charitable arm of the many diverse law-related ser- lawyers who are OBF Fellows Oklahoma Bar Association, the vices organizations and the at various giving levels. Law- Oklahoma Bar Foundation courts for technology projects yers who are not Fellows can reaches out to students through in the total amount of $490,575. still help by including OBF in law-related education programs their annual gift planning and The OBF and the OBA have designed to teach about the give what they feel is appropri- joined forces to ensure the pub- law, the legal system and the ate for their personal financial lic is able to gain better under- fundamental principles upon situation. Our generous sup- standing of the law and which our democracy is based. porters clearly understand the improved access to our legal OBF accomplishes a great deal Our law student scholarships are designed to capture only the most energetic and devoted lawyers to our grand legal profession. Law Day, largely cele- brated on May 1, provides a forum for all Oklahoma counties and their bar associations to celebrate the annual Law Day theme, which was “Democracy and You” this year. OBF sponsors two YMCA Youth in Government programs — the Youth Model Legislative Day and participation in the Attending the OBF Court Grants at Work dedication ceremony of the new ABA National Judicial Oklahoma County Courthouse Public Media Center in the Law Library Competition. The OBF also are from left County Commissioner Brian Maughan, Law Library Board sponsors the statewide Oklaho- Secretary Sarah Schumacher, Law Library President Sheila Stinson, ma High School Mock Trial OBF President Dietmar K. Caudle, Oklahoma Supreme Court Justice Program each year, which Noma Gurich, OBF Executive Director Nancy Norsworthy, Judge Bar- allows students to gain an bara Swinton and OBF Trustee Jeffery D. Trevillion Jr. insider’s perspective of the legal process and act out their system. Civil legal aid has tra- with the donations received dreams of becoming potential ditionally been the flagship each year. future barristers. of OBF grant awards. The OBF is diligent in broadcasting the The second category of The OBF’s mission of “Law- grant award process and the donors includes the newly yers Transforming Lives” is many successful stories result- structured Community Fellow accomplished by providing ing from the awards. program. These donors consist annual support for the proof law firms, OBA sections and motion of justice, funding of It is important to note that committees, IOLTA banks and critical legal services and the the OBF’s mission cannot businesses in the community advancement and better under- occur without the generosity that recognize the good deeds standing of the law. During of its donors. These donors accomplished by OBF and 2013, the OBF funded grants to consist of approximately 1,600

1136 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 choose to partner in this in- sion of “Lawyers Transforming valuable law-related work. Lives” without these annual About The Author donations. The third category of OBF Dietmar K. funding is derived from state- The OBF salutes your con- Caudle prac- wide cy pres awards. The most tinued financial support in a tices in Law- recent has come from a court- mission which benefits every ton and serves sponsored cy pres award from county and every citizen of as OBF Presi- Dewey, Custer and Roger Mills our great state, and we look dent. He can counties. These types of awards forward to accomplishing more be reached at are typically issued by the sit- with everyone’s help. d.caudle@ ting district court judge. Cy pres sbcglobal.net. awards are not part of the annual budget and are invalu- able donations that have made a critical difference in the OBF’s ability to maintain grant funding and make a lasting impact. Give to OBF Today! The fourth category of OBF The 2014 OBF grant application funding is derived from the is currently available on the OBF receipt of IOLTA income. The website. Grant applications are final category of OBF donations comes from estate planning being accepted now through proceeds and gifts from other WWW.OKBARFOUNDATION.ORG Tuesday, July 1, 2014. foundations. It is clear that the OBF cannot succeed in its mis-

Tributes and Memorials A simple and meaningful way to honor those who have played an important role in your life or whose accomplishments you would like to recognize. The OBF will notify your tribute or memorial recipient that you made a special remembrance gift in their honor or in memory of a loved one. Help the OBF meet its ongoing mission - lawyers transforming lives through the advancement of education, citizenship and justice for all. Make your tribute or memorial gift today at: www.okbarfoundation.org/make-a-contribution Or if you prefer, please make checks payable to: Oklahoma Bar Foundation P. O. Box 53036 Oklahoma City OK 73152-3036 Email: [email protected] • Phone: 405-416-7070

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Name, !Group"#$%&$'&()'*#+%&,%-( name, Firm or other&.')&$,'/%&#"&"%%+&0/&0"& affiliation______'1.&2'33!"#$4&.%--'5!

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

City/State/Zip"#$%&!'()*+!!! ______! ! ! ! ! ! ! ! ! ! ! ,$-.(/.+!!! ! ! ! ! ! ! ! ! ! ! ! ! Phone 0(______121-3!4!5*216*#7!899#*::+!! ! ! ! Email ! ______! ! ! ! ! ! ! ,1.7;<.(.*;=1&+!!!!!!!!!!!!!! FELLOW>?$- ENROLLMENT*+!! ! ! ONLY ! ! ! !!!!!!!!@A0(12+!! ! ! ! ! ! ! o Attorney! o Non-attorney !"#$%&'$()**+,-./$'#00)12$-2$3$,#1$4#,#5)0#,.$67)873*$)9$."#$%:03")*3$&37$ ___ I want to')+ be ,;3.an OBF-),$30 Fellow0)1-,8 $now)783,- – $$!$$$$"#$%&'(')*'+$',$-./)*0#1$%&'2*/*'+$',$ ___ Total amount3456 enclosed4)#7$/#&2 $1,000*0#/1$4+7$4724+0#(#+)$',$%.83*___0$454 New&#+ lawyer#//$4+7$ 1st8#))#&$ year,.+7 $25#&/)4 enclosed+7*+9$',$ & bill annually as stated ___ New lawyer)"#$345:$ within 3 years, $50 enclosed and bill annually as stated ___ I want to be recognized at the higher level of $67&'1.&(89:;<7=&.>?<;?@&.98A& Sustaining ;<=$Fellow>??@A$B;CD$E?FG$!; and will continue my$ annual ___ I want to be recognized at the highest ! • B#**!2*3(2!(::1:.(-/*!C$#!.?*!&$$#!(-9!*29*#27! gift of $100 A?DH?$;IFJE;KJ>A$ Leadership level of Benefactor Fellow and • <(C*!?(6*-!C$#!.?*!(D%:*9! (initial pledge should be complete) annually contrbute at least $300 L>$>??@M$ (initial pledge• >#$.*/.1$-!(-9!2*3(2!(::1:.(-/*!C$#!/?129#*-should be complete) ! ___ My charitable contribution$ to help offset the • >%D21/!2(EA#*2(.*9!*9%/(.1$-!&#$3#():F!1-/2%91-3!&#$3#():!Grant Program Crisis@ABC$!%DEF$E!$ C$#!:/?$$2!/?129#*- ! GGGH%I&EJ'%KLDE!A%LH%J@$ • G.?*#!(/.161.1*:!.?(.!1)&#$6*!.?*!H%(21.7!$C!I%:.1/*!C$#! ! COMMUNITY FELLOW(22!GJ2(?$)(-: ENROLLMENT ONLY o OBA Section or Committee o Law firm/office o County! Bar Association o IOLTA Bank o Corporation/Business o Other! Group 2699=7&B89C&D6877&D;78=&9B&'1.&29CC>?;DE&.7FF9G&=>HH98D&D9&HF7<@7&E9>8&@89>HI=&67FHA& K! ! ! ! !!!(JD89?!!!!!"#$%%&'(&)'(*&+*(&,*-(! Choose from three tiers of OBF Community Fellow support to pledge your group’s help: K!!!! !!!(J8D?78!!!!!!.#%%%&/&!"#011&+*(&,*-(! $______Patron $2,500 or more per year K!!!! &&&/>HH98D78!!!!"$%&/&!111&+*(&,*-(! $______Partner $1,000 - $2,499 per year ! $______Supporter $250 - $999 per year <13-(.%#*!4!5(.*+!!!!!!!! !!GL8!L(#M!! ! ! ! >#1-.!'()*!4!N1.2*+!!!!!!!!!!!!! Signature and Date ______OBA Bar # ______GLB!<&$-:$#+!!!!!!!!!!!! Print Name >2*(:*!J1-927!)(J*!/?*/J:!&(7(D2*!.$+!!GJ2(?$)(!L(#!B$%-9(.1$-!and Title ______!>!G!L$O!PQRQS! !GJ2(?$)(!,1.7!GT!UQVPWAQRQS!

OBF Sponsor (If applicable) ______>?$-*+!XYRPZ!YVSAURUR!! "!!!@A0(12+!C$%-9(.1$-[$JD(#\$#3" ! Kindly make checks!"3,:$/)+$9)7$ payable to: Oklahomayour Bar Foundation8#,#7)2-./$3,;$2+66)7.?" PO Box 53036 Oklahoma City, OK 73152-3036

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

THANK YOU FOR YOUR GENEROSITY AND SUPPORT!

1138 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 BOARD OF GOVERNORS ACTIONS Meeting Summary

The Oklahoma Bar Association attended the Cleveland Coun- luncheon following the board Board of Governors met at ty Bar Association meeting meeting, Tulsa County Bar the Oklahoma Bar Center in and ABA Bar Leadership Insti- Association past presidents Oklahoma City on Friday, tute in Chicago. He participat- luncheon, TCBA Nominations March 21, 2014. ed in the OBA Technology and Awards Committee, and REPORT OF THE Committee meeting and met OBA Awards Committee meet- PRESIDENT once in person and once by ing. Governor Gifford report- conference call regarding the ed he attended the February President DeMoss reported contract for a new bar journal board meeting and Oklahoma she attended the Tulsa County printer. County Bar Association Board of Directors meeting. He made Bar Association past presi- REPORT OF THE dents’ luncheon, Shawnee PAST PRESIDENT a presentation to the Central Education Foundation dinner Oklahoma Association of honoring Justice Combs, Liti- Past President Stuart report- Legal Assistants. Governor gation Section meeting/CLE ed he attended the February Hays reported she attended and OETA Festival fundraiser. board meeting and Shawnee the February Board of Gover- She made presentations at the Educational Foundation ban- nors meeting and lunch fol- Cleveland County Bar Associ- quet at which Justice Doug lowing the meeting, OBA Fam- ation CLE and Muskogee Combs was presented with the ily Law Section monthly meet- Rotary Club. She prepared an Alumni Award. He also volun- ing for which she prepared Oklahoma Bar Journal article teered for the OBA’s night to and presented the budget and participated in planning take pledges at the OETA report, Tulsa County Bar Asso- meetings for the Oklahoma Festival. ciation judicial dinner, OBA Bar Journal publication, 2014 FLS practice manual advertis- REPORT OF THE ing planning session, OBA FLS Annual Meeting, town hall in EXECUTIVE DIRECTOR Custer County, April Board of Trial Advocacy Institute plan- Governors meeting, Day at the Executive Director Williams ning session and OBA FLS Capitol, Appellate Advocacy reported he attended the town executive planning session for Seminar and proposed senior hall event in El Reno, High Annual Meeting. She also pro- section. School Mock Trial Program vided an OBA board report at the TCBA Board of Directors REPORT OF THE championship finals, Technol- VICE PRESIDENT ogy Committee meeting, Bar meeting, communicated with Leadership Institute, YLD the TCBA Long Range Plan- Vice President Shields, monthly meeting, OETA Festi- ning Committee and commu- unable to attend the meeting, val fundraising event and nicated with the Solo and reported via email that she MCLE Commission meeting. Small Firm Planning Commit- attended the Oklahoma Coun- He spoke to the OBA Leader- tee. Governor Jackson report- ty Bar Association meeting ship Academy. He also reported he attended the February and planning meetings with ed his assistant, Debbie Brink, Board of Governors meeting, various informal groups con- will be on medical leave Canadian County Courthouse cerning judicial independence beginning the first week of event and Garfield County Bar issues. April and may be out of the Association meeting. He spoke regarding the judiciary to the REPORT OF THE office up to one month. Kiwanis and to the noon PRESIDENT-ELECT BOARD MEMBER REPORTS AMBUCS. Governor Marshall President-Elect Poarch, Governor Dexter reported reported he attended the unable to attend the meeting, she attended the February February board meeting and reported via email that he Board of Governors meeting, Shawnee Educational Founda-

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1139 tion dinner honoring Justice He said that many new lawyers MEMBER BENEFIT FOR Combs. Governor Parrott, are faced with the challenge of BUSINESS & CORPORATE unable to attend the meeting, finding employment, and the LAW SECTION reported via email that she division will be drafting a pro- Section Chair Jeanette Tim- attended the February board posal to establish a fund that mons described a member meeting, luncheon following would assist bar members in benefit called Lexology, which the meeting, OBA Awards paying their membership dues. is a web-based daily newswire Committee meeting and Bench A proposal will be submitted to service for business/corporate and Bar Committee meeting. the Board of Governors for its lawyers that is free to sub- Governor Sain reported he consideration. scribers. To take advantage of attended the February board REPORT OF THE the free service, email address- meeting, Idabel Warrior Club SUPREME COURT es would need to be provided, meeting, McCurtain Memorial which is against OBA policy. Hospital Foundation meeting Justice Kauger reported the Ms. Timmons said restrictions and McCurtain County Bar Supreme Court has been busy. could be required to prevent Association meeting. He also Planning is underway for Sov- Lexology from sharing email read “Green Eggs and Ham” ereignty Symposium, which addresses and that if the by Dr. Seuss to a class of sec- will have a chief justice from OBA terminates the service, ond graders at Primary South Canada as the keynote speak- addresses will be deleted. She in Idabel. Governor Smith er. She said extra copies of the said the section will share the reported he attended the Feb- court’s new book are available. opportunity with section ruary board meeting. He made The next Movie Night with the members and any member presentations to the Wagoner Justices CLE will feature the who wants to opt-out can do County Rotarians and Musko- movie, Chicago. so before email addresses are gee County Bar Association. COMMITTEE LIAISON shared. The board authorized He hosted President DeMoss, REPORTS Executive Director Williams to who gave a presentation to the execute the contract. Muskogee Rotary. Governor Executive Director Williams Stevens reported he attended reported the Bar Association OBA AWARDS the February board meeting Technology Committee is Governor Dexter reported and March Cleveland County looking forward to the launch the Awards Committee recom- Bar Association meeting that of the new OBA member soft- mends that the same awards included a presentation by ware in July. The committee is presented last year be present- President DeMoss. He served looking at a new product to ed in 2014. The board as a volunteer for an OBA allow more interaction among approved the Awards Com- Lawyers for Heroes Yellow members, and videoconferenc- mittee recommendation. Ribbon pre-deployment event. ing options are also being Governor Thomas, unable to reviewed. Governor Jackson REPORT OF THE attend the meeting, reported reported the Civil Procedure/ GENERAL COUNSEL via email that she attended the Evidence Code Committee has Written status reports of the February board meeting, town reviewed proposed legislation. Professional Responsibility hall event in El Reno and President DeMoss reported the Commission and OBA disci- Washington County Bar Law-related Education Com- plinary matters for February Association meeting. mittee is conducting a training 2014 were submitted for the session for lawyers in the class- YOUNG LAWYERS board’s review. DIVISION REPORT room on April 16, and board members are invited. She also DISTRICT 5 BOARD OF Governor Hennigh reported said Legislative Monitoring GOVERNORS VACANCY he attended the February board Committee Chair Duchess Bart- meeting, Pay it Forward YLD mess gave a presentation on President DeMoss reported Task Force meeting and Gar- legislation to the Litigation Sec- that she and President-Elect field County Bar Association tion that was excellent. She rec- Poarch talked to Cleveland meeting. He helped prepare ommended Ms. Bartmess as a County Bar Association mem- and distribute the bar exam speaker for other groups. bers, and a candidate for the survival kits and chaired the District 5 board vacancy was February YLD board meeting. recommended. The board

1140 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 voted to appoint Rickey J. TOWN HALL MEETING OETA REPORT Knighton, Norman, to the REPORT position formerly held by President DeMoss reported President DeMoss reported Jim Drummond, who moved the OBA raised more than the first meeting held at the to Texas. $7,000 in private donations Canadian County Courthouse from OBA members to benefit OKLAHOMA BAR in El Reno was successful. She OETA, Oklahoma’s statewide JOURNAL STATUS thanked board members for PBS TV station. The donation their participation. Governor keeps the OBA in the highest President DeMoss shared the Jackson said he spoke to two possible donor level. The sta- process being used to find a or three organizations in Enid tion co-produces the Ask A printer to replace long-time and took with him former Lawyer TV show with the OBA bar journal printer, Printing Judicial Nominating Commis- every year. Bar members vol- Inc., which is going out of sion member Glenn Devoll to unteered one evening during business. She reported four also speak. One speaking the fundraising event to take printers submitted bids and engagement resulted in a front pledges. selected was Stigler Printing. page newspaper article. A task force will be formed to NEXT MEETING Governor Smith reported the consider whether changes presentation to the Muskogee should be made to the 10 The Board of Governors met Rotary was well attended. It theme issues or 24 court is- on Friday, April 25, 2014, at was a good program that was sues currently printed. It was the Idabel Chamber of Com- well received. announced that Fastcase at merce in Idabel. A summary the request of the OBA is fast LEGISLATIVE UPDATE of those actions will be pub- tracking the availability of free lished after the minutes are monthly advance sheets for President DeMoss expressed approved. The next board the court material in electronic her concern about proposed meeting will be at 10 a.m. format. legislation. She emphasized Friday, May 23, in Oklahoma the importance of OBA Day City. at the Capitol, which will be March 25.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1141 ACCESS TO JUSTICE

Providing Pro Bono Services Earns Multiple Rewards By Kelly M. Hunt

It takes time, money and each year.1 Though there may Association offers classes, but effort to become an attorney. be varying opinions as to why they come at a cost and aren’t Basically, one must get an we have to comply, the gener- always available throughout undergraduate degree, take al idea is to ensure that attor- the state.3 Local bar associa- the LSAT, graduate from law neys stay on top of the current tions may also offer CLE pro- school, pass a bar exam, pass laws and to enhance our stan- grams, but those may not be character and fitness inquiries dards of practice. Inherently, free and may not be in the and join state and local bars. in a constantly changing attorney’s field of practice. Somewhere in there, the brave world, keeping current on the Another CLE option is ones may also choose to do an the membership route. This internship or just try and have would entail finding a club a life, with the former being or association that offers CLE the easier option. Volunteering also credits as part of the member- After all of this, one is final- allows attorneys to ship and paying the annual ly an attorney and licensed to fee. One example is the Amer- practice law. However, the expand their network- ican Inns of Court, which license doesn’t mean that the offers monthly meetings that work is over. New attorneys ing system and get count toward CLE credits.4 still have to find a job, which, their names out to Another is the American Bar with today’s economy, may Association, which offers dis- not be an easy task. Also, just others in the legal counted CLE programs and because one has a law license free webinars.5 But, again, doesn’t mean it’s permanent. field. costs are involved with these options and the programs After getting a license, attor- may not fit the attorney’s neys have many requirements field of practice. for keeping it. On a basic law and adhering to high level, we must continually standards of practice are good The pull for an attorney’s conduct ourselves in ethical things. But there can be down- time and resources doesn’t and professional ways. Along sides to classic CLE programs end at CLE credits either. with that, there are annual and to ensuring that they are Oklahoma Model Rule 6.1 fees that must be paid and worthwhile ways to spend our states that, “A lawyer should annual continuing legal edu- time and money. render public interest legal cation requirements (CLEs) service.”6 Attorneys should One of the biggest downfalls that must be met — and the provide legal services to those is that most CLE programs latter is what this article is unable to pay. Though the aren’t free. Programs through really about. Oklahoma rules don’t specify the National Business Insti- the number of hours each In Oklahoma, an attorney tute2 can run hundreds of dol- year, the ABA Model Rules must complete 12 hours of lars and conferences can cost promote at least 50 hours.7 continuing legal education thousands. The Oklahoma Bar

1142 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Attorneys have special skills by 11 different states, which and attorneys can integrate the and knowledge that can help give CLE credit in exchange work into their normal routine many people in important for pro bono work.9 — performing it as their time ways, and although this can be allows. It is a win-win situa- Though the specifics vary a contested topic, full of con- tion for everyone and definite- from state to state, CLE for stitutional and moral argu- ly something to be considered pro bono credit programs typi- ments, attorneys should use when looking at the model cally require that the attorney their skills and knowledge and rules and ways that attorneys receive the pro bono client via provide pro bono legal servic- can gain CLE credit. a referral from a court or des- es — if they are able to and if ignated program or institu- they want to. However, attor- 1. Okla. ST CLE Rule 7, reg. 3.6; see also tion.10 These providers include Oklahoma Bar Association, Rules of the Supreme neys should not be forced to legal aid associations or access Court of Oklahoma, available at www.okbar. volunteer and, unfortunately, org/members/MCLE/MCLErules.aspx. to justice-type programs, 2. See www.nbi-sems.com/. many don’t. which help ensure that the 3. See www.okbar.org/members/CLE.aspx; although online CLE offerings are available at MANY BENEFITS TO services are provided to low- any time to all members. VOLUNTEERING income or indigent clients. 4. See http://home.innsofcourt.org. 5. See www.americanbar.org/membership/ It’s too bad, because there dues_eligibility/dues_aba_membership.html. The CLE for pro bono credit 6. Okla. Rules of Professional Conduct, rule really are many benefits to vol- programs usually provide for 6.1, available at www.oscn.net/applications/ unteering. To begin with, pro- a ratio of one CLE credit for a oscn/DeliverDocument.asp?CiteID=73718. 7. ABA Model Rules of Professional Con- viding free or inexpensive specific number of hours duct, Rule 6.1, available at http://goo.gl/ legal services is a great way to worked, with an annual maxi- Di3jtE. 8. See Probono.net/ok, About Our Pro Bono give back to society. Many are mum to be earned. For exam- Program, www.probono.net/ok/pb_projects/ in desperate need of legal ple, in Arizona an attorney item.3049-About_Our_Pro_Bono_Program. assistance but can’t afford it. 9. See American Bar Association, Continu- gets one CLE credit for every ing Legal Education (CLE)/Pro Bono State Rules, To address this need, organiza- five hours of pro bono work, http://apps.americanbar.org/legalservices/ tions offer perks to volunteer with a maximum of five cred- probono/clerules.html. 10. See supra. 11 attorneys, such as free CLE its per year. If Oklahoma had 11. See Ariz. R. Sup. Ct. Rule 45(a)(5). credits, forms databases and a program like Arizona’s, an 12. See Legal Aid Services of Oklahoma Inc., www.legalaidok.org/RTF1.cfm?pagename= experienced staff attorneys to attorney could get five CLE Volunteer%20Opportunities. help figure out the nuances of credits by providing 25 hours 13. Probono.net/ok, Watch for upcoming 8 CLE events from Legal Aid Services of Oklahoma, the legal system. Volunteering of pro bono work. If the clients www.probono.net/ok/cle. also allows attorneys to came through Legal Aid Ser- 12 expand their networking sys- vices of Oklahoma, the attor- About The Author tem and get their names out to ney could obtain more CLE others in the legal field. credits via Legal Aid’s free Kelly M. 13 Despite these incentives, CLE courses. Thus, by per- Hunt is the many attorneys still don’t vol- forming our ethical duty by owner of Hunt unteer. As easy as it is to say representing a pro bono client Law PLLC, a that attorneys need to make or two and then participating small, general time for it, the reality is that in free CLE courses, attorneys practice firm in there are just so many things can take care of most, if not Broken Arrow. already tugging at our pockets all, of the year’s CLE require- She practices and time. So what, then, is the ments, as well as help out primarily in business, family, oil happy medium between meet- those most in need of legal and gas, and property law. She is ing CLE requirements in a services. also an adjunct professor with meaningful way and provid- Ultimately, providing CLE the University of Tulsa’s new, ing pro bono services, while credits for pro bono work online Masters in Energy Law still making efficient use of offers many benefits to both program. Originally from Michi- our time and resources? Well, society and attorneys. Low- gan, she graduated magna cum the answer may lie in pro- income and indigent clients laude from Thomas M. Cooley grams already being offered get the legal help they need, Law School in 2012.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1143 YOUNG LAWYERS DIVISION

Diversity Within Your Own Law Practice Has Its Benefits By Kaleb Hennigh

The practice of law is an ators who were looking to evolving profession that ensure that the family farm requires the ability to respond As a young and heritage was maintained and adapt to new laws, chang- from generation to generation. es to existing laws and varia- lawyer, don’t be afraid So began my asset protection tions of interpretations of and estate planning practice. those laws based on the to take on a new As I assisted these families in actions of legislators, adminis- client needing this capacity, soon arose the trators, judges and justices. need for additional large scale One thing I’ve learned in my representation in an asset purchases; real estate and 10 years of practice is that you mineral transactions; wind must always be flexible, will- area that is new to and oil and gas lease negotia- ing to continue to learn, adapt you — accept and tions; and then litigation and grow, and most impor- involving trust disputes and tantly to remain humble and embrace the probate litigation. While serv- courteous at all times when ing clients in each of these working within this industry. challenge. areas and utilizing the knowl- “Diversity in the Law” is the edge obtained from assisting theme for this month’s bar those clients, I believe I have journal, and I wanted to touch MY OWN EXAMPLE become a much better attorney on something that will make I began my practice in a and able to provide sound all of us better attorneys. small boutique firm focusing advice due to the diversity When the term “diversity” on agricultural intellectual within my practice. comes up, I’m certain many property rights serving a clien- Certainly as laws continue to people think a lot of different tele in need of protecting their change, complexities begin to things. For example, when own research and develop- compound and the need to addressing our profession one ment within the wheat seed stay abreast of all the evolving might think of the make-up industry. While practicing in issues within each area of our of attorneys such as what this area I was introduced to profession grows, it makes percentage is female or male, another group of clients in dire sense that attorneys seek to what ethnicity is more promi- need of financial help navigat- become more and more nent, or whether the political ing through the reorganization focused on narrow aspects views of the profession seem of their large scale agricultural within a practice area. Manda- to be more conservative or lib- production practices through tory Continuing Legal Educa- eral, etc. However, I want you bankruptcy reorganization. tion (MCLE) requirements are to think about your specific In serving these needs and here to make certain that as a practice and how maintaining returning to northwest Okla- practitioner seeking to main- a diverse practice will help homa, I took my knowledge tain a diverse practice, one you become a better advocate from assisting those financially would get the training and for your clients. stressed clients and began development he or she needs. working with large and small I do believe there is an oppor- agricultural families and oper- tunity to maintain a diverse

1144 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 practice to ensure that clients’ As a young lawyer, don’t be goals and objectives are afraid to take on a new client accomplished, and I encourage needing representation in an all young lawyers to keep an area that is new to you — open mind and to seek ways accept and embrace the chal- to maintain diversity within lenge. Look to the OBA for a their own practices. CLE and identify a more versed attorney willing to SEEK OUT A MENTOR assist you through the repre- MCLE requirements should sentation. I believe you will not not be what a practicing attor- only enjoy the new challenge, ney relies on to establish or but most importantly you will consider themselves well become a better professional! versed in a particular area of Incorporating diversity within law. Young attorneys should your own practice will benefit set these established require- you and your client. ments as a floor and seek a mentor to assist them as they work to meet the needs of their clients. About The Author Currently, the OBA requires The comprehension of the an attorney to complete a min- bankruptcy rules and regula- Kaleb imum of 12 Oklahoma MCLE- tions have aided me greatly Hennigh approved credits during each throughout my asset protec- practices in calendar year with a minimum tion and succession planning Enid and of one credit devoted to pro- practice, and in my opinion by serves as fessional responsibility, legal working in both of these areas the YLD ethics or legal malpractice pre- I’m able to give my clients a chairperson. vention. Fellow young lawyers much more thorough repre- He can be use these classes and courses sentation. This is just one contacted at to gain a better understanding example of how maintaining a [email protected]. of other areas of practice diverse practice will assist you which can be implemented in in becoming a better attorney. your current practice area.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1145 CALENDAR OF EVENTS May

19 OBA Litigation Section meeting; 12 p.m.; 6 OBA Professional Responsibility Commission Oklahoma Bar Center, Oklahoma City with meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; teleconference; Contact David VanMeter 405-228-4949 Contact Dieadra Goss 405-416-7063

Licensed Legal Intern Swearing-In Ceremony; OBA Alternative Dispute Resolution Section 12:45 p.m.; Judicial Center, Oklahoma City; Contact meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma Wanda Reece 405-416-7000 City and OSU Tulsa, Tulsa; Contact Jeffrey Love 405-285-9191 20 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Judge David B. Lewis 405-556-9611

OBA Communications Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Doerner Saunders Law Office, 3200 S. Boston Ave., Ste. 500, Tulsa; Contact Dick Pryor 405-740-2944

23 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000

26 OBA Closed – Memorial Day observed 27 OBA Women in Law Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and University of Tulsa, Tulsa; Contact Allison Thompson 918-295-3604

28 OBA Work/Life Balance Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with 10 OBA Diversity Committee meeting; 12 p.m.; teleconference; Contact Sarah Schumacher Oklahoma Bar Center, Oklahoma City with 405-752-5565 teleconference; Contact Ruth Addison 918-574-3051

June OBA Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with tele- 3 OBA Government and Administrative Law conference; Contact Candace Blalock 405-238-0143 Practice Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact 13 OBA Board of Bar Examiners meeting; 9 a.m.; Scott Boughton 405-717-8957 Oklahoma Bar Center, Oklahoma City; Contact Oklahoma Board of Bar Examiners 405-416-7075 5 OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.; Office of Tom Cummings, 701 NW OBA Family Law Section meeting; 3 p.m.; 13th St., Oklahoma City; RSVP to Kim Reber Oklahoma Bar Center, Oklahoma City and OSU Tulsa, [email protected] Tulsa; Contact M. Shane Henry 918-585-1107

OBA Lawyers Helping Lawyers discussion group OBA Law-related Education Committee meeting; meeting; 6 p.m.; University of Tulsa College of Law, 12 p.m.; Oklahoma Bar Center, Oklahoma City with John Rogers Hall, 3120 E. 4th Pl., Rm. 206, Tulsa; teleconference; Contact Suzanne Heggy 405-556-9612 RSVP to Kim Reber [email protected]

1146 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 17 OBA Bench and Bar Committee meeting; July 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa, Tulsa; Contact Judge David Lewis 405-556-9611 1 OBA Government and Administrative Law Practice Section meeting; 4 p.m.; Oklahoma Bar 19-21 OBA Solo & Small Firm Conference; Hard Rock Center, Oklahoma City with teleconference; Contact Hotel and Casino, 777 W. Cherokee St., Catoosa; Scott Boughton 405-717-8957 Contact Nickie Day or Jim Calloway 405-416-7000 4 OBA Closed – Independence Day observed 20 OBA Board of Governors meeting; Hard Rock Hotel and Casino, 777 W. Cherokee St., Catoosa; 8 OBA Diversity Committee meeting; 12 p.m.; Contact John Williams 405-416-7000. Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ruth Addison 918-574-3051 OBA Access to Justice Committee meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and 11 OBA Law-related Education Committee OSU Tulsa, Tulsa; Contact Laurie Jones 405-208-5354 meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy OBA Rules of Professional Conduct Committee 405-556-9612 meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Paul Middleton 15 OBA Bench and Bar Committee meeting; 405-235-7600 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa, Tulsa; Contact Judge David Lewis 24 OBA Women in Law Committee meeting; 405-556-9611 12 p.m.; Oklahoma Bar Center, Oklahoma City and University of Tulsa School of Law, Tulsa; Contact 16 OBA Alternative Dispute Resolution Section Allison Thompson 918-295-3604 meeting 12 p.m.; Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Jeffrey Love 25 OBA Work/Life Balance Committee meeting; 405-286-9191 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Sarah Schumacher OBA Clients’ Security Fund Committee 405-752-5565 meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Micheal Salem 26 Oklahoma Bar Foundation meeting; 8:30 a.m.; 405-366-1234 Oklahoma Bar Center, Oklahoma City; Contact Nancy Norsworthy 405-416-7070 17 OBA Women in Law Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OBA Financial Institutions and Commercial University of Tulsa School of Law, Tulsa; Contact Law Section meeting; 12 p.m.; Oklahoma Bar Allison Thompson 918-295-3604 Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Eric Johnson 405-602-3812 18 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma 27 OBA Juvenile Law Section meeting; 4 p.m.; City; Contact Dieadra Goss 405-416-7063 Oklahoma Bar Center, Oklahoma City with teleconference; Contact Tsinena Thompson 405-232-4453 Oklahoma Bar Foundation meeting and lunch; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa, Tulsa; Contact Nancy Norsworthy 405-416-7070

19 OBA Young Lawyers Division meeting; 10 a.m.; Tulsa County Bar Center, Tulsa; Contact Kaleb Hennigh 580-234-4334

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1147 FOR YOUR INFORMATION

Legislation Impacting OBA Fails Vote in Oklahoma House With broad bipartisan opposition, the Oklahoma House of Representatives defeated SJR21 with a 31-65 vote on Thursday, April 24. The failure to pass the proposed legislation means that Oklahoma lawyers from across the state will continue to elect six of their colleagues to represent the legal profession as a nonpartisan, minority voice on the state’s 15-member Judicial Nominating Commission. “We’d like to thank all members of the Oklahoma House for their careful consideration of the effects of the proposed measure,” said OBA President Renée DeMoss of Tulsa. “We would also like to thank the Oklahoma citizens, lawyers and non-lawyers alike, who contacted their elected officials and asked them to defeat this bill. Fair and impartial courts are important to all Oklahomans, and that is what we will continue to have in our state.” President DeMoss also expressed thanks to those who gathered at the Capitol as the bill was being heard as well as the more than 2,500 Oklahomans who signed a petition urging lawmakers to defeat the bill. The OBA will now focus efforts on its Courtfacts initiative, seeking to increase public education and understanding of the judicial branch of government. More information is available at www.courtfacts.org.

OBA Women in OBA Women in Law Committee/Lawyers Law Committee Fighting Hunger Team Up for Food members stuff Donation Event eggs at the Wilkin McMur- More than 500 Easter hams and other grocery ray law firm. items were distributed to families in need during From left: the recent Live Local Give Local/Celebrate Cheryl Jackson, Spring Event in Tulsa. The event was a combined Sharon Halowell, effort between the Community Food Bank of Jana Robinson Eastern Oklahoma, Emergency Infant Services, and Elissa Iron Gate and Lawyers Fighting Hunger, and Hernandez. numerous Tulsa lawyers volunteered their time and resources. OBA Women in Law Committee members stuffed 5,400 Easter eggs with candy and toys to give to families as a festive touch to celebrate the holiday.

The Court of Civil Appeals, Tulsa Division, also hosted members of the OBA Women in From left: Rhonda Wallace, Allison Thompson, Law Committee as they assembled eggs for Lora Montross and Tammie Goodell work on the event. From left: Sandra Jarvis, Emily plastic egg assembly at the Court of Civil Duensing and Judy Parks. Appeals, Tulsa Division.

1148 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Tulsa Lawyer Brings Home ‘Three-Peep’ in National Contest Paula J. Quillin’s series of dioramas titled “Constitutional Crisis” earned grand prize honors in the ABA Journal Sixth Annual “Peeps in Law Contest.” Instead of engaging in microwave “Peep wars,” legal professionals across the country used the animal-shaped marshmallows to create law-inspired models. Ms. Quillin’s entry won with 1,224 votes (37.95 percent of total votes). It marks the third year in a row that Franden Woodard Farris Quillin + Goodnight has won the grand prize. Ms. Quillin, a partner with the firm, said this year’s submis- sion was a total joint effort between her and Barbara Rush, the firm’s writing and research specialist. Their diorama was inspired by the 50th anniversa- ry of President John F. Kenne- dy’s assassination. They even incorporated actual photos from Dealey Plaza, the location of the assassination. View all of this year’s entries at www.abajournal.com/gallery/peeps_2014.

New Judges Appointed Gov. Mary Fallin recently announced appointments to fill judicial vacancies in Texas, Coman- che and Choctaw counties. 2009 OBA President Jon K. Parsley of Guymon was named Texas County district judge, succeeding Judge Greg Zigler who retired. Before his swearing in, Judge Parsley practiced privately since 2003, focusing on oil and gas, real estate and contracts. He also handled civil and criminal cases. He most recently served on the OBA Professional Responsibility Commission and as chairman of its Mentorship Task Force. In 2003, he received the OBA Outstanding Young Lawyer Award and the OBA President’s Award in 2007. He earned a bachelor’s degree from UCO and a law degree from the OU College of Law. Emmit Tayloe of Lawton was named district judge for Comanche County. He succeeds Judge Allen McCall who retired. Judge Tayloe began his private practice in 1986, with a heavy case- load of federal, state and municipal criminal cases as well as a variety of civil cases. He served previously for Bar Journal Taking a Summer Vacation four years as an assistant district attor- The Oklahoma Bar Journal theme issues are taking a ney in the Comanche County district short break. The next issue, devoted to “Children attorney’s office, from 1982-86. He and the Law” will be published Aug. 9. Deadline earned a bachelor’s degree from for submissions will be July 5. You’ll still receive Cameron University and a law degree issues containing court material twice a month in from the OU College of Law. June and July. Have a safe and happy summer! Bill Baze of Hugo has been named an associate district judge in Choctaw County. He succeeds Judge James Wolfe, who died recently. Judge Baze previously served as the assistant district attorney in Choctaw County and as an appellate attorney for the Okla- homa Indigent Defense System. He received a bachelor’s degree and a law degree from the University of Oklahoma.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1149 Invite Teachers to Attend This Free Discussion Groups Available to Year’s Hatton W. Sumners OBA Members Teacher Institute “The Emotional Challenges of the Solo Practitio- The Hatton W. Sumners Teacher Insti- ner” will be the topic of the June 5 meetings of the tute will be held June 9-13 at Oklaho- Lawyers Helping Lawyers discussion groups in ma City University. The institute, Oklahoma City and Tulsa. Each meeting, always aimed at Oklahoma educators, offers the first Thursday of each month, is facilitated by programs to help teach citizenship committee members and a licensed mental health skills necessary for young adults to professional. In Tulsa, the meeting time is 6 – 7:30 fulfill their role in society. This year’s p.m. at the TU College of Law, John Rogers Hall, institute theme is “Using Civics 3120 E. 4th Place, Room 206. In Oklahoma City, the Technology in Our Classrooms.” The group meets from 6 – 7:30 p.m. at the office of Tom conference is offered at no charge with Cummings, 701 N.W. 13th Street. There is no cost to all expenses paid for attendees. The attend and snacks will be provided. RSVPs to Kim application deadline is May 23. Please Reber, [email protected], are encouraged to share this information with your local ensure there is food for all. teachers. More information is available at www.okbar.org/public/LRE/ LAWYERS HELPING LAWYERS HWSInstitute.aspx. ASSISTANCE PROGRAM

Important Dates to Keep in Mind Don’t forget! The Oklahoma Bar Center will be closed Monday, May 26 and Friday, July 4 in observance of the Memorial Day and Independence Day holidays. Remem- ber to register and join us for the 2014 Solo & Small Firm Conference in Tulsa June 19-21, and be sure to docket the OBA Annual Meeting to be held in Tulsa Nov. 13-14.

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

OBA Member Reinstatement Connect With the OBA Through Social Media The following OBA member sus- Have you checked out the OBA Facebook page? It’s pended for nonpayment of dues a great way to get updates and information about or noncompliance with the Rules upcoming events and the Oklahoma legal community. for Mandatory Continuing Legal Like our page at www.facebook.com/OklahomaBar Education has complied with the Association. And be sure to follow @OklahomaBar requirements for reinstatement, on Twitter! and notice is hereby given of such reinstatement: Bradley Joseph Noland OBA No. 21767 5152 State Highway 199 Ardmore, OK 73401

1150 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 BENCH & BAR BRIEFS

under 40” class of 2014. The the OU College of Law in list is comprised of Oklahoma 2007. Both will practice in professionals recognized for the area of general insurance professional achievements defense. and contributions to their augherty Fowler Peregrin communities. ohn R. Woodard III, of DHaught & Jenson has JFranden Woodard Farris dam Childers, of Crowe named Mark J. Peregrin as Quillin & Goodnight, was A& Dunlevy, has been partner at the firm. Mr. Pere- recently selected to be a fel- named chairman of the Okla- grin has been a special Feder- low of the Litigation Counsel homa City Metro Employer al Aviation Administration of America. The Litigation Council. The council is a coop- counsel with the firm since Counsel of America is an erative educational effort of 2007. His practice is focused honorary society of American the Oklahoma Employment on structuring and closing lawyers who are selected by Security Commission, Work- aircraft transactions and filing invitation, based upon accom- force Oklahoma partners and transaction documents with plishments in litigation and Oklahoma City area human the FAA. resource professionals. ethical reputation. laney & Tweedy PLLC imberly McCullough, of Bannounces that Trey Tip- KJ. Michael Entz Inc., was ton and Ward Hobson have recently elected to the board joined the firm as attorneys. of directors for the Oklahoma Mr. Tipton graduated from Chapter of the National Asso- the OU College of Law in ciation of Royalty Owners. 2005. He joined the firm as an The mission of OK - NARO associate in 2013. His practice is to encourage and promote focuses on business, commer- exploration and production ruman B. Rucker Law cial and real estate law. Mr. of minerals in Oklahoma TOffices announces that Hobson graduated from the while preserving, protecting, Peter D. (Dan) Rucker has OU College of Law in 2007. advancing and representing joined the firm’s practice. The His practice includes intel- the interests and rights of firm specializes in civil trial lectual property, business Oklahoma mineral and practice with an emphasis in and commercial law and royalty owners. insurance defense. Mr. Rucker civil litigation. is admitted to practice law in all Estill announces that mily Maxwell Herron, Oklahoma and Arkansas. Eassistant district attorney HTyler D. Leonard, Vaden for District 17, received the onald R. Bradford and F. Bales and Gregory W. 2014 Mary Ellen Wilson DMarc S. Albert announce Alberty have joined the Award from the Oklahoma a new law partnership, Brad- firm’s Tulsa office. Mr. Leon- State Department of Health’s ford & Albert. Located in ard graduated from the TU Family Support and Preven- Tulsa, the firm will practice in College of Law in 2003. Mr. tion Service. The award product liability, personal inju- Bales graduated from the is given to a person who ry and medical malpractice. Washburn University School of Law in 1975. Mr. Alberty demonstrates outstanding ignato Cooper Kolker & graduated from the TU Col- commitment to child abuse Roberson PC announces P lege of Law in 1997. prevention services. that Joy Tate and C. Dayne rae Gray of Coalgate was Mayes have joined the firm. egal Aid Services of Okla- Trecognized as a member Ms. Tate graduated from the Lhoma announces Douglas of Oklahoma Magazine’s “40 OU College of Law in 2013. Bragg has joined its Oklaho- Mr. Mayes graduated from ma City office. Mr. Bragg

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1151 graduated from the OU Col- also spoke at two “Ask the rin Donovan, of Erin lege of Law in 2009. He will Counselor” sessions and on EDonovan & Associates, be working as an embedded an “Experts Panel” at the Lee- recently spoke at the Ameri- attorney with the Education dom Group’s Buy Here Pay can College of Trust and & Employment Ministry in Here World Convention in Estate counsel’s annual Oklahoma City. Las Vegas. meeting. ndrew Adams III has Vance Winningham, of an Dumont, of Riggs Afounded Hogen Adams E. Winningham Stein & JAbney, presented “Health PLLC, an Indian law firm in Basey, spoke to OU College of Care Reform – Pay or Play” St. Paul, Minn. The firm prac- Public Health students and to the Oklahoma Association tices in all aspects of Indian faculty concerning the U.S. of Health Underwriters at its law. Mr. Adams serves as a immigration system, with spring continuing education judge of several tribal courts, emphasis on employment event in Oklahoma City. including as chief justice of related visas for health pro- How to place an announce- the Muscogee (Creek) Nation fessionals and pathways to ment: The Oklahoma Bar Journal Supreme Court. obtaining lawful permanent welcomes short articles or residence status. ichards & Connor news items about OBA mem- Rannounces that Lawrence Robyn Assaf of Oklaho- bers and upcoming meetings. R. Murphy Jr. has become of . ma City recently pre- If you are an OBA member and R you’ve moved, become a part- counsel with the firm. The sented “Medical Liability ner, hired an associate, taken firm announces that Mariann Law – USA Experience” to on a partner, received a promo- Atkins, Christopher Brecht, the Private Hospitals Associa- tion or an award, or given a Anthony Mann, Adam Wil- tion in Jordan, where she was talk or speech with statewide son, Colby Pearce and Nicole invited to speak about pend- or national stature, we’d like Herron have joined the firm ing changes to Jordanian to hear from you. Sections, as associates. Their practice medical liability law. committees, and county bar will include insurance cover- associations are encouraged U College of Law profes- age, bad faith litigation, gen- to submit short stories about sor Vicki J. Limas pre- eral civil litigation, criminal T upcoming or recent activities. sented “Employment Law in defense and family law. Honors bestowed by other Indian Country: A Case of publications (e.g., Super Law- Competing Sovereigns” at the yers, Best Lawyers, etc.) will not Tribal Employment Rights & be accepted as announcements. Law Conference in Prior (Oklahoma-based publications Lake, Minn. are the exception.) Information selected for publication is atthew C. Kane, of printed at no cost, subject to MRyan Whaley Coldiron editing, and printed as space Shandy PLLC, recently pre- permits. sented “Twenty Years of Liti- ric L. Johnson, of the Submit news items via email to: gating the ‘Rwandan Geno- Oklahoma City office of E cide’ in U.S. Courts” at the Lori Rasmussen Hudson Cook LLP, moderat- Rwanda 20 Years After: Mem- Communications Dept. ed a panel discussion on Bit- ory, Justice and Recovery in Oklahoma Bar Association coins at the ABA Business 405-416-7017 the Shadow of Genocide Con- Law Section’s Consumer [email protected] ference at Weber State Uni- Financial Services Committee versity in Ogden, Utah. meeting in Los Angeles. Eric Articles for the Aug. 9 issue must be received by July 5.

1152 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 IN MEMORIAM

harles Perry Ames of Okla- for Judge Theodore McMillian arlene Reeves Mitchell Choma City died April 28, in St. Louis and worked at the Eof Oklahoma City died 2014. He was born March 22, office of the Missouri attorney March 31, 2014. She was born 1924, in Oklahoma City. He general before going into pri- August 19, 1949, in Chickasha. earned his undergraduate vate practice. In 2012 she She earned her J.D. from OCU degree from Princeton Univer- received the President’s Award in 1997. Prior to becoming an sity and his J.D. from the OU for excellence in her field from attorney, she worked as a legal College of Law in 1952. He the Missouri Bar. Memorial assistant for probate and gener- practiced law at the Ames Law contributions may be made to al practice attorneys. As an Firm, started by his grandfa- the Cole and Kaelyn Halcomb attorney her practice included ther. He served as a lieutenant Fund at Jefferson Bank, 700 estate, family and bankruptcy in the U.S. Army, receiving a Southwest Blvd., Jefferson City, law. She loved bowling, often Bronze Star for his service in MO, 65109. traveling around the country World War II and a Purple for tournaments. Heart after being wounded by udge William J. Holloway, JJr. of Oklahoma City died ilbur P. Patton of Oklaho- machine gun fire. He enjoyed ma City died March 29, traveling with his wife, spend- April 25, 2014. He was born W He 2014. He was born Jan. 3, 1920, ing time with his family and June 23, 1923, in Hugo. served in the U.S. Army dur- in Morehead, Ky. He served in pets and attending OU football ing World War II the U.S. Navy, working on a games. . He received his undergraduate degree from minesweeper during World orrest Lee Frueh of Norman OU in 1947 and his J.D. from War II. He earned his J.D. from Fdied March 4, 2014. He was Harvard Law School in 1950. the OU College of Law in 1948. born Jan. 26, 1939, in Perry. He After receiving his law degree, He retired as an attorney from earned his bachelor’s degree in he briefly worked as an attor- Fireman’s Fund Insurance accounting from OU in 1962 ney for the U.S. Department of Company. He loved fishing and his J.D. from the OU Justice. He practiced privately and riding his motorcycles. College of Law in 1970. His in Oklahoma City from 1952- illiam Amis “Bill” Pip- 40-year career at OU included 1968. He was nominated by Wkin of Purcell died April work as a professor, director of President Lyndon B. Johnson in 7, 2014. He was born June 25, undergraduate programs, asso- 1968 to serve on the 10th U.S. 1934, and received his J.D. from ciate dean and professor emeri- Circuit Court of Appeals, serv- Samford University in 1957. He tus. He was a member, faculty ing as its chief judge from 1984- practiced as a lawyer in Moore. advisor and former president 1991. He was the court’s lon- ertha Faye Teague of Hul- of Sigma Phi Epsilon fraternity. gest-serving judge, serving bert died March 17, 2014. In addition to his work at OU until his death, although he B She was born April 27, 1939, in he was a practicing certified took senior status in 1992. He Chelsea. She received her bach- public accountant for more received the OBA’s President’s elor’s and master’s degree in than 40 years. Award for 20 years of judicial education from Northeastern service in 1988. In 2006, the ina Marie Crow Halcomb State University. After retiring Oklahoma City Federal Bar of Jefferson City, Mo., died from teaching at Hulbert High T Association introduced the March 31, 2014. She was born School, she returned to law William J. Holloway Jr. Lecture May 28, 1967, in Mooreland. school, earning her J.D. from Series in his honor. Judge Hol- She earned her bachelor’s the TU College of Law in 1994. loway was a member of St. degree from OU in 1989 and She then served as an assistant Luke’s United Methodist her J.D. from the OU College of district attorney. She loved Church in Oklahoma City, Phi Law in 1992. In 1988 she was a spending time with her family Gamma Delta fraternity and delegate for OU at the Demo- and traveling with her hus- the American Law Institute. cratic National Convention in band. Her other favorite pas- Memorial donations may be Atlanta. She began her career times included listening to made to Doctors without with Legal Aid of Western Elvis, collecting Elvis memora- Borders. Oklahoma. She also clerked bilia and taking her annual trip to Graceland.

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1153 WHAT’S ONLINE

Good Great Morning Tips for those of us who just aren’t morning people Tweet? http://tinyurl.com/q4vmpSq A great resource for lawyers who need some inspiration and motivation https://twitter.com/Good4Lawyers

Presentation Pick-Me-Up Are your meeting presentations lacking? Here are 10 rules for improving them. Going Green http://tinyurl.com/mdjb7tt

Saying goodbye to bulky paper files? Here are some fun ideas for repurposing those old file cabinets http://tinyurl.com/pwgss9z

Meet TED Short, inspirational videos for those seeking a deeper understanding of the world — or who just want to hear some refreshing news for a change www.ted.com

1154 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1155 CLASSIFIED ADS

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1156 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 SERVICES OFFICE SHARE TECHNICAL WRITING/ Fact investigation. Medical OFFICE SPACE TO SHARE. Located near 71st and Yale.

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Office Space – MidTown Law Center THE OKLAHOMA TAX COMMISSION, LEGAL DIVI-

SION seeks an attorney for an opening in its OKC of- Historic atmosphere in restored 1926 building for fice, Collections Section. 0-2 years’ experience pre- solo or small firm lawyers. Rent includes: phone, fax, ferred. Applicants must be licensed to practice law in long distance, internet, parking, library, kitchen Oklahoma and have a current OK driver’s license as privileges, on site storage, two conference rooms and the position requires travel. Submit résumé and writ- receptionist. Enjoy collegiality with civil/trial/ ing sample to John Hawkins, Assistant General Coun- commercial attorneys sel, 120 N. Robinson, Suite 2000W, OKC, OK 73102. The 229-1476 or 204-0404 OTC is an equal opportunity employer. ASSOCIATE ATTORNEY, 0-3 years experience. Enid

law firm seeking associate with an interest in business and civil litigation and willing to relocate to the Enid area. Send résumé, cover letter, transcript and writing sample to [email protected].

Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1157 POSITIONS AVAILABLE POSITIONS AVAILABLE IN-HOUSE TRANSACTIONAL PARALEGAL. Ameri- RIGGS ABNEY NEAL TURPEN ORBISON & LEWIS can Fidelity Corporation seeks a full time Sr. Paralegal an AV-rated, regional full-service firm, seeks associate for its Legal Department (Contracts, Transactions and with 2+ years experience for a full-time position in- IP team). Ideal candidate will have 5 – 7+ years legal volving family law and general civil litigation for its experience as a paralegal in a transactional practice, Tulsa office. Applicants should submit résumé and with significant expertise in legal document prepara- cover letter via email to [email protected], regu- tion and management. Strong attention to detail and lar mail to 502 West 6th Street, Tulsa, OK 74119, or via organization skills are essential as well as ability to pri- www.riggsabney.com. Salary is commensurate with oritize and respond to deadlines. Law firm experience, experience. All applications are confidential. EOE. college degree and paralegal certification are desirable. Highly competitive compensation and benefits. Please THE LEFLORE COUNTY DISTRICT ATTORNEY’S

apply via the careers page of the corporate website at OFFICE is seeking an Assistant District Attorney for www.afadvantage.com. All applications will be kept the Poteau Office. Primary responsibilities include the confidential. criminal prosecution of all domestic violence and sexual assault offenses, felony and misdemeanor, provide NORMAN LAW FIRM is seeking sharp, motivated at- training and advice to local law enforcement on cases

torneys for fast-paced transactional work. Members of involving domestic violence and sexual assault, and our growing firm enjoy ateam atmosphere and an ener- perform other duties as assigned. Salary DOE. Appli- getic environment. Attorneys will be part of a creative cant must have a J.D. from an accredited law school; process in solving tax cases, handle an assigned case- legal experience in criminal law and prior courtroom load, and will be assisted by an experienced support experience preferred. Must be a member of good stand- staff. Our firm offers health insurance benefits, paid va- ing with the Oklahoma State Bar. Applicants may sub- cation, paid personal days, and a 401K matching pro- mit a résumé, postmarked no later than June 9, 2014 to gram. Applicants need to be admitted to practice law in the following address: District Attorney’s Office, 100 S. Oklahoma. No tax experience necessary. Submit cover Broadway, Room 300, Poteau, OK 74953, 918-647-2245, letter and résumé to [email protected]. Fax: 918-647-3209. LARGE DOWNTOWN OKLAHOMA CITY LAW NORTHWEST OKLAHOMA LAW FIRM has an imme-

FIRM seeks Legal Assistant to fill a position with our established Intellectual Property practice group. Prior diate opportunity for an associate attorney with 0-5 years experience as a legal assistant and excellent word proof experience. Candidates must be motivated, willing to cessing and organizational skills are required. Previous work in a variety of capacities, detail and task oriented experience as an intellectual property legal assistant is and play nice with others. If your goal is to live and work a plus. The starting salary is negotiable based on expe- in God’s Country, legally defined as the territory North rience. Generous benefits package includes paid park- of Hwy 51 and West of Hwy 81 we are interested in visit- ing, medical and life insurance. Other benefits include ing with you. Our firm is looking for a candidate seeking 401(k), profit sharing, dental insurance, long term dis- gainful employment with an interest in living and work- ability, and a cafeteria plan for uninsured medical and ing in Northwest Oklahoma with practice desires and/ day care expenses. Please send résumé, references and or experience in oil and gas title work, family law, legal salary requirements to Judy Cross at judy.cross@ research and writing and litigation. In addition to a great mcafeetaft.com. work atmosphere the firm provides benefits. Contact us at: [email protected]. CONTRACT ADMINISTRATOR POSITION at the Uni- SMALL NORTH OKC AV RATED FIRM seeks attorney versity of Oklahoma. Responsibilities include drafting, reviewing, negotiating and approving contracts in accor- with a minimum of 5 years of experience in civil litiga- dance with applicable law and University policy. Acts as tion. Submit résumé and writing sample to “Box A,” a resource to University Outreach departments review- Oklahoma Bar Association. P.O. Box 53036, Oklahoma ing grant and contract proposals, certifications and rep- City, OK 73152. resentations. Must produce deliverables in accordance with professional-level business standards. Advises Uni- versity officers in relation to contracts, compliance, and FOR SALE risk assessment. Assists Director of Contract Administra- SUCCESSFUL SOLE PRACTITIONER LAW PRAC- tion with administrative matters. Apply through https://

TICE in OKC metro. Focus on estate planning, asset jobs.ou.edu Job requisition # 19395 jobs.ou.edu/ protection, collections, bankruptcy, general business applicants/Central?quickFind=84036 The University is law. Seller will work with buyer for smooth transition an equal opportunity institution. www.ou.edu/eoo. of repeat clients. Revenues over $230k in 2013 with BUSY SOCIAL SECURITY DISABILITY LAW FIRM strong net margin. Seller financing with appropriate down payment. For more information, contact repre- seeks experienced legal assistant. The right candidate will be able to maintain deadlines, supervise support sentative at 405-826-8166. staff in conjunction with attorneys and interact with clients. We offer competitive pay, health, dental and vision insurance, as well as a matching 401k plan. Please send résumé to “Box H,” Oklahoma Bar Association, P.O. Box 53036; Oklahoma City OK 73152.

1158 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014 LOST WILL CLASSIFIED INFORMATION LOOKING FOR A WILL AND/OR LIVING TRUST: CLASSIFIED RATES: $1 per word with $35 minimum per in-

Family is looking for the attorney who assisted in the sertion. Additional $15 for blind box. Blind box word count legal affairs of Kiowana C. Lamkin who passed away must include “Box ___, Oklahoma Bar Association, P.O. Box on the 21st day of March, 2014. Possibly in the Tulsa 53036, Oklahoma City, OK 73152.” Display classified ads with area. If you have information, please contact Bruce G. bold headline and border are $50 per inch. See www.okbar.org Straub, 918-286-8001. for issue dates and display rates. DEADLINE: Theme issues 5 p.m. Monday before publication; Court issues 11 a.m. Tuesday before publication. All ads must be prepaid. SEND AD (email preferred) stating number of times to be published to: [email protected], or Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly non-discriminatory. DO NOT STAPLE BLIND BOX APPLICATIONS

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Vol. 85 — No. 14 — 5/17/2014 The Oklahoma Bar Journal 1159 THE BACK PAGE

Buffalo Shield By Linda Burkett-O’Hern

In Oklahoma, a Choctaw word for “land of the red men,” an Oklahoma legislator, offended at all the English/Spanish signs wanted to make English the official language. Ghosts of the dead Algonquin, Apache, Assiniboine, Arapaho, Aztec, Blackfoot, Cayuga, Cherokee, Chickasaw, Choctaw, Cheyenne, Comanche, Crow, Delaware, Hopi, Huron, Iowa, Kansas, Kickapoo, Kiowa, Klamath, Maya, Miami, Mohawk, Muskogee Creek, Natchez, Navajo, Nez Perce, Ojibwa, Omaha, Oneida, Onondaga, Osage, Ottawa, Paiute, Potawatomi, Sac and Fox, Seminole, Seneca, Shawnee, Shoshoni, Sioux, Tarahumara, Tonkawa, Tuscarora, Wichita, Wyandot and Yaqui got up and danced to the drum beat, laughing, and their pure and mixed blood descendants smiled, some cloaked in European and other genes and wearing English and native names. They know we’re all related and some understand the healing plan of the one-half dark and one-half white buffalo painted by the medicine shield man. An old fire alarm sign set in metal on the north entryway wall of the federal courthouse in Oklahoma City reads Fire in English and Feuer in German. Germans and Americans both taught their enemies how to speak that word of their languages and together at Nuremberg, after the firestorm at Dresden, and Camp Gruber here in Oklahoma, they taught each other how to speak peace.

Linda Burkett-O’Hern is a lawyer who lives in Tulsa.

1160 The Oklahoma Bar Journal Vol. 85 — No. 14 — 5/17/2014

Century Old Letter Provides Judicial Flashback • OBA Awards • Small Towns — Big Opportunities • Sovereignty Symposium

Century Old Letter Provides Judicial Flashback • OBA Awards • Small Towns — Big Opportunities • Sovereignty Symposium