Professional Responsibility Commission & Professional

Volume 84 u No. 5 u Feb. 16, 2013

ALSO INSIDE Professional Responsibility Commission & Professional Responsibility Tribunal Annual Reports

OBABootCamp: Oklahoma LawyersForAmerica’sHeroes Visit www.okbar.org/cle/2010/2013-03-07 Visit for program details and to register. to and details program for Visitwww.okbar.org/heroes/signup.php OBA PastPresidentDebReheard. marines andairmen-America’sheroes,”said was togive legalassistancetooursoldiers,sailors, year asPresidentoftheOklahomaBarAssociation help America’sheroes.Oneofthefocusesmy sues. “Asattorneys, we areinauniquepositionto Many returnwithphysical andmentalhealthis- those whoprotectourfreedoms. provide legalassistanceandaccesstojustice President JimStuartiscommittedtocontinue estimated value of$2millioninlegalservices.OBA have beenprovided freelegalassistancewithan its inception,nearly2,000ofAmerica’sheroes services toservicemembersandveterans. Since in November 2010 asaninitiative toprovide legal Oklahoma Lawyers ForAmerica’sHeroesstarted Committee Assistance Military OBA the with Cosponsored terials, there will be a $25 charge. Printed materials will You will receive a link to download materials in advance their supervisingattorney. Preregistrationisrequired. restricted tolicensedattorneys, judges,andparalegalswhoattendwith not participatingintheprobonoservice.Attendance tothisseminaris through OklahomaLawyers forAmerica’sHeroes;$150attendees if attendeesagreetoprovide twenty (20)hoursofprobonoservice CLE creditormaypaythetuitionfeeandreceive credit.Nocharge welcome toeitherauditthecourseasarefresherbutmaynotreceive who have notcompletedtheir20hoursofprobonoservicefor2012are service forthecalendaryear 2013andreceive freetuition.Members program mayattendandagreetoprovide another20hoursofprobono have completedtheir20hoursofprobonoservicesfor2012throughthe to membersnotyet CLEcompliantfor2012.Heroesvolunteers who Approved for7.5hoursMCLE/.5Ethics.ThisfreeCLEisnotavailable not be available the day of the seminar; however, you of the seminar. If you would like a hard copy of the ma- can order a copy to be mailed to you at a later date. seminarID2734.htm for program details program for seminarID2734.htm

and to register. to and hpgh{GP{ Oklahoma BarCenter Oklahoma City,OK March 7

11 MYOBACLE ,668(635,1* Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 305 306 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Th e m e : pg. 341 In d i a n La w Editor: Mark Ramsey & 349 Professional Responsibility contents Reports Feb. 16, 2013 • Vol. 84 • No. 5 Departments 308 From the President 338 Editorial Calendar 354 From the Executive Director 356 Law Practice Tips 359 Ethics/Professional Responsibility 361 OBA Board of Governors Actions 365 Oklahoma Bar Foundation News 368 Access to Justice 370 Young Lawyers Division 371 Calendar 372 For Your Information 374 Bench and Bar Briefs 378 In Memoriam 384 The Back Page

Cover Photo: Osage Warrior by Matthew Bearden is part of the Oklahoma Judicial Center Collection, made pg. 339 & 354 possible by the Oklahoma Art in Public Places Act. Legislative Photo by Neil Chapman. Session Begins Features 311 So m e r l o t t v. Ch e r o k e e Na t i o n Di s t r i b u t o r s Inc . By Rabindranath Ramana 317 Prize and Tort Claims Involving Tribal Casinos: The Basics Every Practitioner Should Know By James M. Burson, Raymond J. Campbell Plus and William R. Norman 339 Committee Reviews Legislation/ 323 Tribal Sovereign Immunity: In OBA Day at the Capitol What Forum and Under What By Duchess Bartmess Circumstances May a Tribe Be Sued? By Conor P. Cleary 341 Professional Responsibility Commission Annual Report 329 La k e o f t h e To r c h e s : An Ongoing Saga in Indian Gaming Lending 349 Professional Responsibility Tribunal By Bryan J. Nowlin Annual Report 335 When One Trust Isn’t Enough 353 Law Day: 2013 Celebrations By Rhonda McLean Gearing Up

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 307 FROM THE PRESIDENT

The Word ‘Senior’ Takes on New Meaning By Jim Stuart

In March I will turn 60 years of age, a milestone in required to complete mandatory any person’s life. The word “senior” already appears continuing legal education as a more often in relation to my requisite for my prac- name — mail solicitations, ticing law. discounts, my law firm desig- I struggle with any nation. I still reserve the right comparison of an to refuse to open the AARP “The MCLE earned age exemption mail. Both Social Security and Commission has or discount with my Medicare will be taken more recently proposed ethical obligation to seriously by me in whatever the age exemption continue to provide form they exist. This trend competent legal ser- will only continue in my years be removed from the vices to the public. to come. rules.” The MCLE Commis- After I graduated from law sion has recently pro- school, my senior law partner, posed the age exemp- Jim Miller, told me I knew tion be removed from more law and the rules. I support less about being a lawyer than anyone in such a move. the firm. I wasn’t sure whether to take Our clients will be better this as a compliment, but as a new law- served, and our association the yer any recognition of competency was better for it. I want to encourage gladly accepted. Today as I approach those members of our associa- this milestone in age I sometimes won- tion 65 years and older who reg- der if now I know more about being a ularly practice law, and even lawyer and less law than anyone in the more so those who may be con- firm. I still catch myself referring to the sidering scaling back, to continue 1985 amendments as the “new” pro- to complete continuing legal bate code. education offered through the With good health and a little luck, I OBA. hope to practice law at least 10 more From the Stuart family to years. Under current OBA rules, when I yours, I again wish you good reach 65 years of age I will no longer be health and happiness in 2013.

President Stuart practices in Shawnee. [email protected] 405-275-0700

308 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 OFFIC ERS & BOARD OF GOVERNORS James T. Stuart, President, Shawnee Renée DeMoss, President-Elect, Tulsa events Calendar Dietmar K. Caudle, Vice-President, Lawton Cathy M. Christensen, Immediate Past President, Oklahoma City FEBRUARY 2013 Sandee Coogan, Norman Gerald C. Dennis, Antlers 18 OBA Closed – Presidents Day observed Robert S. Farris, Tulsa 19 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Robert D. Gifford II, Oklahoma City Kimberly Hays, Tulsa Center, Oklahoma City; Contact Barbara Swinton 405-713-7109 Douglas L. Jackson, Enid OBA Civil Procedure and Evidence Code Committee meeting; O. Chris Meyers II, Lawton 3:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact James Milton D. Scott Pappas, Stillwater 918-594-0523 Nancy S. Parrott, Oklahoma City Bret A. Smith, Muskogee 20 Oklahoma Bar Foundation Grants and Awards Committee Richard D. Stevens, Norman meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Linda S. Thomas, Bartlesville Nancy Norsworthy 405-416-7070 Joseph M. Vorndran, Shawnee, Chairperson, OBA/Young Lawyers Division OBA Law Day Committee meeting; 12 p.m.; Oklahoma Bar Center, BAR Center Staff Oklahoma City with teleconference; Contact Richard Vreeland John Morris Williams, Executive Director; 405-360-6631 Gina L. Hendryx, General Counsel; Jim Calloway, OBA Women In Law Committee meeting; 4 p.m.; Oklahoma Bar Director of Management Assistance Program; Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Craig D. Combs, Director of Administration; Susan Damron Krug, Director of Educational Kim Hays 918-592-2800 Programs; Beverly Petry Lewis, Administrator 20-21 OBA Law-related Education Close-Up program; 8:30 a.m.; MCLE Commission; Carol A. Manning, Director Oklahoma Bar Center, Oklahoma City; Contact Jane McConnell of Communications; Travis Pickens, Ethics Counsel; Robbin Watson, Director of Information Technology; 405-416-7024 Jane McConnell, Coordinator Law-related Education; 21 Oklahoma Justice Commission meeting; 2 p.m.; Oklahoma Bar Loraine Dillinder Farabow, Tommy Humphries, Center, Oklahoma City; Contact Drew Edmondson 405-235-5563 Tina Izadi, Katherine Ogden, Assistant General Counsels; Tommy Butler, Tanner Condley, OBA Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Sharon Orth, Dorothy Walos and Center, Oklahoma City with tele-conference; Contact Judy Spencer Krystal Willis, Investigators 405-755-1066 Manni Arzola, Amy Baker, Debbie Brink, Emily Buchanan, Susan Carey, Johnny Marie Floyd, 22 OBA Board of Governors meeting with president’s summit; Matt Gayle, Dieadra Goss, Brandon Haynie, 9 a.m.; Postoak Lodge, 5323 W. 31st St. N., Tulsa; Contact Suzi Hendrix, Misty Hill, Debra Jenkins, Durrel John Morris Williams 405-416-7000 Lattimore, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Larry Quinn, Lori Oklahoma Association of Black Lawyers meeting; 12 p.m.; Rasmussen, Tracy Sanders, Mark Schneidewent, Oklahoma Bar Center, Oklahoma City; Contact Donna Watson Jan Thompson, Laura Willis & Roberta Yarbrough 405-721-7776 EDITORIAL BOARD OBA Rules of Professional Conduct Committee meeting; 3 p.m.; Editor in Chief, John Morris Williams, News Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; & Layout Editor, Carol A. Manning, Editor, Contact Paul Middleton 405-235-7600 Melissa DeLacerda, Stillwater, Associate Editors: Dietmar K. Caudle, Lawton; Sandee Coogan, 26 – March 1 Norman; Emily Duensing, Tulsa; Pandee OBA Bar Examinations; Oklahoma Bar Center, Oklahoma City; Ramirez, Okmulgee; Mark Ramsey, Contact Oklahoma Board of Bar Examiners 405-416-7075 Claremore; Judge Megan Simpson, Buffalo; Joseph M. Vorndran, Shawnee; Judge Allen J. For more events go to www.okbar.org/calendar Welch, Oklahoma City; January Windrix, Poteau NOTICE of change of address (which must be The Oklahoma Bar Association’s official website: 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. 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Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 309 310 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Indian LAW Somerlott v. Cherokee Nation Distributors Inc. The End of Sovereign Immunity for Subordinate Economic Entities By Rabindranath Ramana

ubordinate economic entities of Indian tribes are often regarded as “arms of the tribe” and are granted sovereign Simmunity. For example, in recent years, the 10th Circuit has concluded that a tribe’s operating division (created to engage in the manufacture, sale, and distribution of tobacco) and a tribal economic authority (which owned and operated a casino) were both entitled to sovereign immunity in light of their close relationships with the tribes they served.1 In the immunity analysis, the key issue is Nevertheless, the following factors are rele- whether the subordinate entity is “analogous to vant: 1) the method employed to create the sub- a governmental agency, which should benefit ordinate entity; 2) its purpose; 3) its structure, from the defense of sovereign immunity,” or, on ownership and management, including the the other hand, “more like . . . commercial busi- amount of control the tribe has over the entities; ness enterprise[s], instituted solely for the pur- 4) evidence regarding the tribe’s intent to confer pose of generating profits for [its] private immunity; 5) the financial relationship between owners.”2 For Indian tribes, the government the tribe and the entity; and 6) the policies agency classification is broader than one might underlying tribal immunity and whether those think. The 10th Circuit has recognized that tribal policies are served by granting immunity.5 governments may differ from other sovereigns. In its recent decision in Somerlott v. Cherokee They “directly control or participate in commer- Nation Distributors Inc.,6 the 10th Circuit changed cial activities more frequently than other [types the inquiry substantially for a class of subordi- of] governments[,] [and] the tribal organization nate entities — those formed under state law. may be part of the tribal government and pro- The court held that an Oklahoma limited liability tected by tribal immunity, even though it may corporation was not entitled to tribal sovereign have a separate corporate structure.”3 immunity — even though it was a wholly owned Under 10th Circuit precedent, the immunity subsidiary of a tribal corporation that was, itself, inquiry governing these subordinate entities is wholly owned and regulated by the Cherokee case-specific, and the court has seen no need to Nation. define the precise boundaries of the governing Somerlott establishes a bright-line standard for standard.4 entities formed under state laws that authorize

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 311 coworker, and that the CND had eventually replaced her with a younger employee. The Cherokee Nation CND filed a motion to dismiss Ms. Somerlott’s complaint, arguing that it was exempt from lia- exercised substantial control over bility under Title VII and the ADEA. It also the CND’s business affairs. asserted that it was a subordinate economic entity of the Cherokee Nation and was therefore entitled to sovereign immunity. suits against those entities. The decision also THE FEDERAL DISTRICT COURT’S applies a stringent standard for the preservation MULTIPLE-FACTOR APPROACH of issues on appeal. Attorneys who practice The federal district court granted CND’s Indian law and appellate litigation should note motion to dismiss, ruling that CND was a subor- its reasoning and its conclusions. dinate economic entity of the tribe. The court FACTUAL BACKGROUND relied primarily on the connection between CND and the economic interests of the nation as Tina Somerlott worked as a technician for a whole. It invoked the 2005 legislation pertain- company known as “CND,” which provided ing to CND’s parent corporation — Cherokee chiropractic care at the Reynolds Army Hospital Nation Businesses Inc. As set forth in that tribal in Fort Sill. CND was wholly owned by Chero- law, the purposes of the parent corporation were kee Nation Businesses, a tribal corporation that closely tied to the welfare of the nation as a whole itself was wholly owned and regulated by the — promoting the nation’s economic development Cherokee Nation. CND was first formed as an and preserving and enhancing profits to be dis- Oklahoma corporation at a time when the Cher- tributed throughout the tribe.8 In light of CND’s okee Nation did not permit the formation of close connection to the economic interests of the limited liability companies. After the tribe lifted nation, the court reasoned, “extending the Tribe’s that restriction, CND was converted to an Okla- sovereign immunity to CND would further fed- homa limited liability corporation. CND became eral policies aimed at protecting Indian assets a wholly-owned subsidiary of the Cherokee Nation Businesses pursuant to a statute passed and would also help preserve Cherokee cultural by the Cherokee Legislature in 2005. autonomy by protecting and encouraging the Cherokee Nation’s continuing efforts at economic The Cherokee Nation exercised substantial self- sufficiency.”9 control over the CND’s business affairs. Mem- bers of CND’s board of directors were selected The court also characterized the 2005 law as a by the Cherokee Nation’s principal chief and kind of de facto reincorporation of CND under confirmed by the nation’s tribal council. CND tribal law. Although the court acknowledged was required to obtain the council’s approval that CND had been initially formed as an Okla- before entering into certain real estate transac- homa corporation, it concluded that, by estab- tions. In addition, the principal chief was grant- lishing a tribally controlled entity (Cherokee ed the authority to remove CND’s managers Nation Businesses) as CND’s parent corpora- with or without cause. Finally, CND officials tion, the tribal legislature had sought to ensure were required to make monthly accounting that CND would be managed in a manner con- reports to the tribal council. sistent with the goals of the nation.10 In January 2007, CND terminated Ms. Somer- In addition, the court considered the tribe’s lott’s employment. She filed a grievance with the authority over the appointment of CND’s Board Equal Employment Opportunity Commission, of Directors, as well as its oversight of some of which recommended settlement but also issued CND’s real estate transactions, accounting prac- a right-to-sue letter. She then filed a wrongful tices, and personnel decisions. Finally, the court discharge action against CND in federal district observed that CND’s engaging in business out- court, asserting claims of gender and age dis- side of Indian country and employing non-Indi- crimination, and retaliation under Title VII of the ans were of no significance to the immunity 1964 Civil Rights Act and the Age Discrimina- inquiry. Thus, CND met “most, if not all, of the tion in Employment Act.7 She alleged that her criteria commonly used by courts in determin- termination was based on her reporting a sexual ing whether a tribal commercial enterprise is an liaison between her immediate supervisor and a arm of the tribe.”11

312 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 INCORPORATION UNDER STATE LAW: laws. Even corporations formed by states are 10TH CIRCUIT OPINION subject to suit, with the exception of certain Although it affirmed the district court’s judg- governmentally-owed, public-purpose corpora- ment dismissing Ms. Somerlott’s Title VII and tions. However, in this case, Judge Gorsuch ADEA action (because Ms. Somerlott had not stated there was no indication that such an arm- adequately preserved the key immunity issue of-the state public corporation could be created for appellate review), the 10th Circuit rejected under Oklahoma’s Limited Liability Act. the district court’s multiple-factor approach. Judge Gorsuch also observed that CND’s The court observed that there was a crucial assertion of immunity was inconsistent with a distinction between CND and entities in the “foundational feature of corporate law”—that a other cases that had afforded immunity to sub- corporation is a distinct legal entity brought into ordinate bodies. Here, the court said, despite the being by the force of law and “subject to the tribal legislation pertaining to CND’s parent privileges and responsibilities provided by the 15 corporation, CND itself was incorporated under sovereign’s laws.” With regard to CND, that state law. Moreover, the state law in question, meant that the various features of limited liabil- Oklahoma’s Limited Liability Act, provided that ity corporations were part of “its corporate a company formed under the statute was “a DNA,” including the duty to answer lawsuits in 16 separate legal entity that could su[e], be sued, any court. complain and defend in all courts.”12 In addition, Judge Gorsuch observed that form- The court further observed that tribal sover- ing CND as an Oklahoma limited liability com- eign immunity was coextensive with the immu- pany was a choice that the nation had made. nity afforded the United States government Giving effect to that choice, and the resulting sur- (though not with the immunity afforded the render of immunity, was entirely consistent with states). Under federal law, subordinate entities the policies of promoting Indian self-government, controlled by the federal government, but formed self sufficiency, and economic development. under state law, are not entitled to sovereign Finally, Judge Gorsuch concluded that the immunity. For example, in a 5th Circuit decision multiple-factor subordinate entity inquiry was from the early 20th century, the court considered not applicable. He wrote, “[T]his court has never the Panama Railroad Company, which the Unit- applied the subordinate economic entity test to ed States owned as its sole shareholder but entities incorporated under the laws of the sec- which had been formed under New York law. ond sovereign. And for good reason. There’s no The court ruled that the company was a separate need to. We can easily tell whether an entity entity that could not assert the immunity of the 13 like that is ‘legally separate and distinct from federal government. the tribe’ by looking to the laws of the second The 10th Circuit concluded that it could “iden- sovereign. That’s what we do when the federal tify no reason to depart from this principle here. government incorporates under state law. Accordingly, CND, a separate legal entity orga- That’s what we do when a foreign sovereign nized under the laws of another sovereign, incorporates under state law. And that’s what Oklahoma cannot share in the nation’s im- we do here.”17 14 munity.” The multiple-factor approach taken A CAUTIONARY NOTE ON THE by the district court did not apply. PRESERVATION OF ISSUES ON APPEAL JUDGE GORSUCH’S CONCURRENCE The 10th Circuit’s Somerlott opinion also pro- With his customary rhetorical flair, Judge Gor- vides a cautionary note about preserving issues such concurred. His opinion contains additional for appeal. Even though the court determined reasoning in support of the majority’s bright- that the district court had erred in applying the line standard. subordinate economic entity test, it further ruled that Ms. Somerlott had failed to adequately raise Like the majority, he observed that when the the argument that established that CND was not federal government chooses to act through a entitled to immunity. state-incorporated entity, that entity is subject to suit under the terms set forth in the state’s law. The court observed that the majority of Ms. Under the common law, he added, the same Somerlott’s arguments in the district court did principle applies to foreign sovereigns that incor- not concern immunity at all. Instead, she mainly porate a business under a state’s commercial addressed the question of whether the exemp-

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 313 tions for Indian tribes set forth in Title VII and that “which affects substantial rights” and which the ADEA applied to CND. “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”21 The bur- Ms. Somerlott did address sovereign immuni- den is on the appellant to establish such error. ty to a limited extent. However, she argued that the immunity question turned on whether CND Applying the standard to Ms. Somerlott’s was a subordinate economic entity of the tribe. appeal, the 10th Circuit concluded that, even In the 10th Circuit’s view, that argument was not though the district court had erred in applying sufficient to raise the dispositive issue — that the subordinate economic entity analysis and CND was a corporation formed under Oklaho- ruling that CND was entitled to immunity, she ma law. could not establish that the error affected her substantial rights or the fairness, integrity, or The court acknowledged that, in the district public reputation of judicial proceedings. court proceedings, Ms. Somerlott had empha- sized CND’s status as corporation and a busi- Ms. Somerlott did argue that the immunity ness entity. However, she never argued that this question was a purely legal one and that it corporate status was determinative. She did not involved “an important question of public cite Oklahoma’s Limited Liability Act. In addi- policy.”22 She further stated that the case involved tion, she did not argue that tribal immunity and an issue of great public importance and that a federal sovereign immunity were similar or that failure to reverse the district court’s decision cases rejecting immunity for corporations formed would result in a “manifest injustice.”23 In the under state law by the federal government 10th Circuit’s view, those arguments fell short of should be applied. Moreover, the argument for meeting the plain error standard, particularly immunity that she did make before the district the final prong (involving the threat to the integ- court — that CND’s functions were not suffi- rity, fairness, or public reputation of judicial ciently connected to traditional government proceedings). functions — had been rejected by the United The court distinguished Rademacher v. Colorado States Supreme Court.18 Ass’n of Soil Conservation Districts Medical Ben. In addressing the matter of adequate preserva- Plan, which concluded that there were some tion, the 10th Circuit applied a prior decision “most unusual circumstances” in which the that distinguished between a) “a party’s chal- court could consider issues raised for the first lenge to the district court’s analysis of the rule” time on appeal and cited “issues regarding juris- and b) “a challenge to the applicability of the diction and sovereign immunity” as examples of rule itself.”19 In the prior decision, the appellant such circumstances.24 However, the 10th Circuit had argued to the district court that a case should said, its precedent distinguished between a) new not have been dismissed under the standards arguments on appeal that would defeat the governing Fed. R. Civ. P. 41(b). On appeal, it court’s subject matter jurisdiction (e.g., a conten- argued that another provision, Fed. R. Civ. P. 37, tion that a defendant found by the district court governed the dismissal inquiry. The 10th Circuit to be subject to suit was entitled to immunity), ruled that the issue of dismissal under Rule 37 and b) new arguments on appeal that would was not adequately preserved. It was not suffi- support that jurisdiction. cient that the appellate theory was related to the Here, the court said Ms. Somerlott’s argument one presented to the district court. Nor would “a fell within the second category. She sought to vague and ambiguous” argument to the district argue that the district court had jurisdiction over court suffice. Under that preservation standard, CND when that court had erroneously conclud- Ms. Somerlott’s argument to the district court ed that it lacked jurisdiction because CND was that CND was not a subordinate economic entity immune. In the 10th Circuit’s view, the fact that did not preserve the argument that its incorpora- one defendant — CND — had benefitted from tion under Oklahoma’s Limited Liability Act immunity to which it was not entitled may have foreclosed its assertion of immunity. caused Ms. Somerlott to lose a potentially meri- The 10th Circuit also applied the plain error torious claim. However, that result did not estab- doctrine, most frequently invoked in criminal lish an injustice or threat to the judicial system cases, but under recent precedent, deemed fit- beyond the results of her own case. As a result, ting for civil cases as well20 The doctrine pro- she could not meet the plain error standard. vides that issues raised for the first time on appeal may only be reviewed for plain error —

314 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 CONCLUSION 11. Id. at *5. The district court rendered its decision before the 10th Circuit issued its opinion in Breakthrough Management Group 629 F.3d 1173 and therefore did not expressly consider all of the relevant factors Under Somerlott, the threshold inquiry in set forth there. Instead, the court cited the factors set forth in a federal assessing a tribally-related entity’s immunity district court case from Kansas. See id. at *3 (quoting Johnson v. Harrah’s concerns the law under which the entity was Casinio Corp., 2006 WL 463138, at *4 (N.D. Kan. Feb. 23, 2006)). 12. Somerlott, 686 F.3d at 1150 (quoting Okla. Stat. tit. 18, § formed. If formed under state law that autho- 2004(B)(1)). rizes suits against it, an entity’s role in fur- 13. Id .at 1150 (discussing Panama R. Co. v. Curran, 256 F. 768, 771–72 (5th Cir.1919)). thering a tribe’s economic development and 14. Id. self-sufficiency, no matter how significant, 15. Id. at 1156 (Gorsuch, J., concurring). 16. Id. will not be sufficient to establish immunity. In 17. Id. at 1158. forming entities that retain immunity, tribes 18. See id. at 1151 (discussing Kiowa Tribe of Oklahoma v. Mfg. Techs. must look to tribal law rather than state law. Inc., 523 U.S 751, 757-58 (1998)). 19. See id. (quoting Ecclesiastes 9:10-11-12 Inc. v. LMC Holding Co., 497 F.3d 1135, 1141 (10th 2007)). Attorneys who litigate immunity issues should 20. See Richison v. Ernest Group Inc., 634 F.3d 1123 (10th Cir. 2011). also note the 10th Circuit’s rigorous standard for 21. Somerlott, 686 F.3d at 1151 (citing Richison v. Ernest Group Inc., 634 F.3d 1123, 1128 (10th Cir. 2011)). Courts typically describe the stan- the preservation of issues for appeal. More than dard as involving four elements: whether there was (1) error, (2) that was general references to immunity and waiver are plain, (3) that affected substantial rights, and (4) that seriously affected required. Counsel who do not argue the particu- the fairness, integrity, or public reputation or judicial proceedings. 22. Id. lar reasons that immunity applies or has been 23. Id. waived will be limited by the plain error stan- 24. 311 F.3d 1567 (10th Cir. 1993). dard on appeal. About The Author 1. See Breakthrough Management Group Inc. v. Chukchansi Gold Casino and Resort, 629 F.3d 1173 (10th Cir. 2010); Native American Distributing Mr. Ramana practices civil and v. Seneca–Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008). 2. Breakthrough Management Group, 629 F.3d at 1184 (quoting Gavle appellate litigation at the Calvert v. Little Six Inc., 555 N.W.2d 284, 293 (Minn.1996)). Law Firm in Oklahoma City. From 3. Id. at 1183-84 (quoting William V. Vetter, Doing Business with Indians and the Three “S”es: Secretarial Approval, Sovereign Immu- 1994 to 2010, he served as a senior nity, and Subject Matter Jurisdiction, 36 Ariz. L.Rev. 169, 174 (1994)). law clerk to 10th Circuit Judge 4. Id. at 1187. 5. Id. at 1187-88. Robert H. Henry. Mr. Ramana is a 6. 686 F. 3d 1144 (10th Cir. 2012) graduate of Princeton University 7. 42 U.S.C. § 2000e et seq.; 29 U.S.C.A. § 621 et seq. 8. Somerlott, no. CIV–08–429–D, 2010 WL 1541574, at *4-5. and the Washington College of 9. Id. at *4. Law at American University. 10. Id.

Access and Visitation Grant Money Oklahoma Child Support Services (OCSS), a division of the Oklahoma Department of Human Services, is soliciting applications from courts, local public agencies and nonprofit private entities to establish and administer local comprehensive programs to increase non-custodial parents’ access to and visitation with their children. OCSS may fund multiple awards to individual community programs from the $100,000 available this year with an option of contract renewal for a second year. Approved activities of mediation, development of parenting plans, counseling, parent education, visitation monitoring, supervised visitation and neutral drop-off/pickup are eligible for 90% funding. The Applicant must provide 10% of the cost in cash or in-kind match. For Application information contact Bettite Davenport, 405-522-5871, [email protected] or Jim Sielert [email protected], 405-522-5871, or write to Oklahoma Child Support Services, Box 248822, Oklahoma City, OK 73124. Applications must be postmarked no later than March 18, 2013.

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 315 316 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Indian LAW Prize and Tort Claims Involving Tribal Casinos The Basics Every Practitioner Should Know By James M. Burson, Raymond J. Campbell and William R. Norman

klahoma Indian tribes operate 114 gaming facilities in Oklahoma, ranging from converted trailer units on gravel Olots with a few dozen games to sprawling properties with thousands of games and plush amenities. These facilities cater to thousands of patrons each day. Inevitably, disputes will arise with patrons over mishaps and contested prize winnings. Before rush- ing to the local courthouse to file a prize or tort claim against a tribal gaming establishment, counsel must have a basic understanding of the law governing the filing of such claims.

TRIBAL GAMING: AN EXTENSION OF A tribe’s decision to conduct gaming derives TRIBAL SOVEREIGNTY from its inherent authority over its territory. The Although characterized as “domestic depen- U.S. Supreme Court upheld the tribes’ authority dent nations,” tribal governments exercise the to conduct and regulate gaming within their own inherent sovereign authority over their members jurisdiction in the landmark case of Cabazon Band of Indians v. California.6 With tribes’ rights to con- and territories.1 Both the federal government and duct gaming affirmed, Congress passed the Indi- the state of Oklahoma recognize tribal govern- 7 ments as sovereign entities whereby states lack an Gaming Regulatory Act of 1988 (IGRA). jurisdiction over civil actions arising in Indian Under IGRA, tribes retain exclusive authority to regulate all traditional games (Class I) that are country against Indians, tribes, or tribal entities.2 played in connection with tribal ceremonies or In fact, Congress conditioned Oklahoma’s state- 8 hood on a disclaimer of jurisdiction over Indian celebrations. Games such as bingo and other similar games (Class II), which are typically country,3 which is memorialized in Oklahoma’s offered for play using technological aids which Constitution.4 As sovereigns, tribal governments possess the power to define their governmental employ entertaining displays, are primarily reg- structure, determine membership, collect taxes, ulated by tribes with certain minimum standards required by federal law and are overseen by the regulate property use and the domestic affairs of 9 their citizenship, and form “their own laws and National Indian Gaming Commission. Finally, the play of so-called Las Vegas-style games (Class be ruled by them.”5 III) is governed by compacts between tribes and

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 317 states, setting forth the Class III games permissi- two decisions in the companion cases of Griffith ble for play and the regulatory framework which v. Choctaw Casino of Pocola and Dye v. Choctaw governs their play.10 Tribal-state compacts typi- Casino of Pocola18 and reached the same conclu- cally include standards for the operation of gam- sion as held in Cossey. ing activities, licensing regulations, fee sched- Tribes generally viewed these decisions as ules, patron disputes, and disputes between the highly injurious to tribal sovereignty and a viola- tribe and state. tion of the compact’s terms. They also feared a MODEL TRIBAL GAMING COMPACT dramatic increase in frivolous personal-injury, property-damage, and prize-claim lawsuits In 2004, Oklahoma’s executive branch and against tribal gaming enterprises in state court, tribal representatives negotiated the Model Tribal and rightly so. In the course of and subsequent to Gaming Compact.11 The compact authorizes the the decisions in Cossey, Griffith and Dye, there play of certain Class III games and provides that were a number of similar tort claims filed in state tribes agree to a limited waiver of sovereign courts.20 Some tribes were able to remove state immunity for prize and tort tort actions to federal court claims made against gaming and obtain favorable decisions facilities by patrons of such on the question of jurisdic- games. Claimants are required tion.21 Other tribes chose to to adhere to and exhaust the While the limited pursue arbitration as provided tribal administrative process as for in the compact.22 set forth in the compact.12 While waiver permits claimants the limited waiver permits to sue tribal gaming Part 12 of the compact pro- claimants to sue tribal gaming vides that compacted tribes or facilities in a “court of compe- facilities in a ‘court of the state may seek binding tent jurisdiction,” nothing in arbitration to resolve a com- the compact “shall alter exist- competent jurisdiction,’ pact dispute such as the proper ing tribal, federal or state civil nothing in the compact interpretation of the terms and adjudicatory or criminal jur- provisions of the compact.23 isdiction.”13 Because state courts ‘shall alter existing tribal, The Choctaw and Chickasaw lacked jurisdiction over claims Nations initiated arbitration against tribes arising in their federal or state civil with the state, and were able to jurisdictions prior to the com- adjudicatory or criminal obtain a favorable award find- pact,14 negotiators had not in- ing that the two tribes’ judicial tended the phrase “court of jurisdiction.’ forums have exclusive juris- competent jurisdiction” to in- diction over compact-based clude state courts.15 Nonethe- prize and tort claims.24 Pursu- less, some casino patrons began ant to the compact, the tribes to file their tort claims against various tribes and were able to obtain a federal order that perma- their casinos in state court over the objections of nently enjoined state courts from hearing prize the tribes. The matter of state court jurisdiction and tort claims arising at their tribal gaming over such claims eventually made its way to the enterprises.25 Oklahoma Supreme Court, arbitration, and then federal court. Similarly, a number of other tribes won arbitration awards against the state and successfully TRIBAL RESPONSE TO THE STATE’S obtained orders from the United States District ASSERTION OF JURISDICTION Court for the Western District of Oklahoma on 26 On January 20, 2009, the Oklahoma Supreme the same question of proper jurisdiction. The Court issued the first of three opinions on wheth- Cherokee, Comanche, Delaware and Osage er state courts have jurisdiction over tort actions Nations and the Wichita and Affiliated Tribes of arising under the Compact.16 In Cossey v. Cherokee Oklahoma were able to obtain federal court Nation Enterprises LLC, the Supreme Court held orders enjoining state courts from exercising jurisdiction over compact-based prize and tort that state courts are “courts of competent juris- 27 diction” and ultimately have the authority to claims. While it is somewhat unclear whether hear personal-injury actions brought by non- the federal declaratory and injunctive relief that Indian patrons against tribal gaming facilities.17 are provided to the tribes will be extended to Later, in June 2009, the Supreme Court issued protect all compacted tribes in Oklahoma, the legal issues are exactly the same.

318 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 PRACTICAL TIPS if the tribe fails to notify the claimant in writing of its approval within 30 days of Attorneys representing prize or tort claimants the filing date, however, the parties may in actions against tribes and tribal casinos should agree to an extension to resolve the be aware — at least with respect to claims made claim, against the aforementioned tribes — that the state courts have been enjoined from hearing b) For tort claims, any portion of the such actions. To avoid needless litigation, coun- claim that is unresolved will be consid- sel with a potential prize or tort claim under the ered denied if the tribe fails to notify the compact should contact the specific gaming facil- claimant in writing of its approval within ity or tribe’s gaming commission for information 90 days of the filing date, however, the on its specific procedure for resolving the claims. parties may agree to an extension to They should also check for any applicable rules resolve the claim.33 governing practicing in the tribe’s forums. Tribal Under the compact, a tribe’s limited waiver of forums on these matters can range from informal sovereign immunity for prize and tort claims will settings to formal courtroom hearings. Most only remain effective when a claimant first involve a combination of informal discussions exhausts the tribal administrative process. The with casino management to resolve the matter basics regarding the background and procedures amicably and escalate to administrative hearings for this process are outlined above. Still, practi- and eventual tribal court proceedings. tioners are advised to familiarize themselves At a minimum, however, the compact with the process’ details before filing a prize and provides: tort claim. Contacting the tribe’s gaming facility or gaming commission on such matters may 1) That tort claim remedies shall not also prove beneficial, and it is also recommend- exceed $250,000 for any one person, ed that practitioners unfamiliar with practice in $2,000,000 for any personal-injury occur- tribal settings seek out assistance from an Indian rence, and $1,000,000 for any property- law practitioner. damage occurrence;28 1. Oklahoma Tax Commission v. Citizen Band, Potawatomi Indian Tribe, 2) That prize claim remedies shall not 498 U.S. 505, 509 (1991), citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). exceed an amount that the claimant can 2. Const. art. I, §8 (the Indian Commerce Clause of the U.S. Consti- prove he or she is entitled;29 tution gives Congress the plenary authority over Indian tribes and Indian country and divests the state authority over Indian commerce 3) A prize claim notice must be filed within and Indian tribes). 3. Okla. Enabling Act §§1, 2, 34 Stat. 267 (1906). 10 days of the event that is the alleged basis 4. Okla. Const. art. I, § 3. for the claim. A tort claim notice must be 5. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980). 6. 480 U.S. 202 (1987). filed within one year of the event which 7. Pub. L. No. 100-497, 102 Stat 2467 (Oct. 17, 1998) (codified at 18 allegedly caused the loss, but if not filed U.S.C. §§1166-1168, 25 U.S.C. §§2701-2721). 8. 25 U.S.C. §2710(a). within the first 90 days, is automatically 9. 25 U.S.C. §§2706, 2710(b)(d) (The National Indian Gaming Com- reduced by 10 percent;30 mission is an independent federal agency within the Department of Interior with the authority to promulgate rules to enforce IGRA, 4) If filed with the tribe’s gaming commis- impose civil fines, approve tribal gaming ordinances, monitor compliance, and oversee management contracts of tribal gaming facilities). sion, the commission must forward a copy 10. 25 U.S.C. § 2710(d). of the prize or tort claim notice to the tribe 11. 3A O.S. §281. The Model Compact became subject to a statewide referendum as State Question No. 712, which was overwhelm- and the state compliance agency within 48 ingly passed by Oklahoma voters. Legis. Ref. No. 335. hours of filing;31 12. Compact pt. 6(A), (C). 13. Compact pts. 6(C), 9. 5) Both the prize and tort claim notice be 14. See Williams v. Lee, 358 U.S. 217, 223 (1959). 32 15. See Application of Scott Meacham for Leave to File Statement, signed by the claimant; and Dye v. Choctaw Casino of Pocola, No. 104,737 (Okla. filed May 15, 2008); Brief of Amici Curiae Brad Henry and Scott Meacham 1-6, Cossey v. 6) The tribe must promptly review, investi- Cherokee Nation Enterprises LLC, No. 105,300 (Okla. filed March 9, 2009); Griffith v. Choctaw Casino of Pocola, 2009 OK 51 ¶ 3, 230 P.3d 488, 500 ¶ gate, and decide the matter 3 (Kauger, J. concurring in part dissenting in part). 16. Cossey v. Cherokee Nation Enterprises LLC, 2009 OK 6, 212 P.3d a) For prize claims, if not resolved within 447 (Jan. 20, 2009); Griffith v. Choctaw Casino of Pocola, 2009 OK 51, 230 72 hours from time of filing, the tribal P.3d 488 (June 30, 2009); Dye v. Choctaw Casino of Pocola, 2009 OK 52, 230 P.3d 507 (June 30 2009). gaming commission must immediately 17. Cossey, 2009 OK 6, 212 P.3d 447 (Jan. 20, 2009). notify the State in writing that the claim 18. 230 P.3d 488 (June 30, 2009). 19. 230 P.3d 507 (June 30, 2009). is unresolved. Any portion of a prize 20. See, e.g., White v. Osage Million Dollar Elm Casino of Tulsa, et al., claim which is unresolved will be denied No. CJ-2009-248 (Osage Co. Dist. Ct. filed Dec. 31, 2010); Crocker v.

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 319 Border Town Casino & Bingo, No. CJ-09-485 (Ottawa Co. Dist. Ct. filed August 21, 2009) . About The AuthorS 21. See, e.g., Harris v. Muscogee (Creek) Nation, No. 11-CV-654-GKF- FHM (N.D. Okla. June 18, 2012); Santana v. Muscogee (Creek) Nation, No. Mr. Burson joined Hobbs Straus 11-CV-782 JHP PJC (N.D. Okla. Dec. 22, 2011); Muhammad v. Comanche Nation Casino, No. CIV-09-968-D (W.D. Okla. Sept. 28, 2010). in 2003. He practices natural- 22. Compact pt. 12. resource protection and economic 23. Id. 24. See Arbitration Award, Class III Gaming Compact Jurisdiction development, including transac- Related Disputes Jointly Referred to Binding Arbitration by the Choc- tional and litigation work in con- taw Nation of Oklahoma, the Chickasaw Nation and the state of Okla- homa (Aug. 25, 2009) available at http://turtletalk.files.wordpress. struction, forestry, water, real com/2010/01/choctaw-chickasaw-oklahoma-arbitration-decision.pdf. estate, and land-use issues. He has 25. Choctaw Nation of Oklahoma et al. v. State of Oklahoma, No. CIV- 10-50-W (W.D. Okla. June 29, 2010). worked for the New Mexico Public 26. See, e.g., Comanche Nation, et al. v. State of Oklahoma, No. CIV- Defender’s Office, with Quinlan, 10-1339-W, (W.D. Okla. Dec. 28, 2010); Cherokee Nation v. State of Bloom & Associates in Alamo- Oklahoma, No. CIV-10-979-W, (W.D. Okla. Nov. 22, 2010); Eastern Shawnee Tribe of Oklahoma v. State of Oklahoma, No. CIV-10-459-W, gordo, N.M. and is an experienced litigator in Federal (W.D. Okla. June 28, 2010). District Court, Federal Court of Claims, and state trial 27. The Eastern Shawnee obtained a declaration and a federal court order confirming the state had no jurisdiction over Compact based tort and appellate courts. He received his J.D. from New claims, however, no permanent injunction was sought, and, thus never Mexico University in 1999. issued by the court. 28. Compact pt. 6(A)(1). 29. Id. at 6(B)(2). 30. Id. at 6(A)(4), (B)(3). 31. Id. at 6(A)(5), (B)(4). Mr. Campbell belongs to the 32. Id. at 6(A)(7), (B)(6). Akimel O’odham tribe and is an 33. Id. at 6(A)(8), (B)(7)-(10). enrolled member of the Gila River Indian Community, Arizona. After graduation from the Sandra Day O’Connor College of Law at Ari- zona State University in 2009, he returned to Oklahoma to practice Indian law. Mr. Campbell joined the Oklahoma City office of Hobbs Straus in 2011. He is a member of the OBA Indian Law Section, Oklahoma Indian Bar Association and ABA Indian Law Section.

Mr. Norman joined Hobbs Straus in 1994 and became a partner in January 2000. His practice includes advocating for tribal interests in federal and state legislation and rulemaking, and with agency decision-makers, in gaming, taxation, and transportation. Mr. Norman, of Muscogee (Creek) descent, is a member of the Oklahoma Indian Bar Asso- ciation and served on the board of the Oklahoma Indian Legal Services. He received his J.D. from the University of Oklahoma in 1992.

320 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 321 322 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Indian LAW Tribal Sovereign Immunity In What Forum and Under What Circumstances May a Tribe Be Sued? By Conor Cleary ne of the most common and vexing issues facing Indian tribes, their business partners and the attorneys that rep- Oresent them is in what legal forum and under what circumstances a tribe and its commercial entities may be sued. On the one hand, the sovereign authority that Indian nations enjoy must be respected and protected by immunity from suit, but on the other, there is a concern among individuals, state and local governments, and corporate entities that this immunity will leave them unable to seek adequate legal redress against tribes. Adding to this concern, or perhaps because of it, is a patchwork of (not always consistent) court cases involving complex situations in which tribes may have waived or Congress abrogated their immunity. What follows is a brief explanation of the doctrine of tribal sovereign immunity and how it functions in two of the most common contexts in which it is likely to be encountered — breach of contract and tort lawsuits.

FUNDAMENTAL PRINCIPLES for centuries”5 and both the federal government and the states enjoy immunity from suit.6 Sovereign immunity is a “government’s immunity from being sued in its own courts without Similarly, as “domestic dependent nations,”7 its consent.”1 As a sovereign entity, a govern- tribal governments exercise inherent sovereign ment exercises control over its territory and has authority over their members and territories.8 the authority to enact laws regulating conduct Like the federal government and states, a tribe’s occurring within its borders. To maintain the inherent sovereignty “gives rise to the immunity “superiority of power”2 that this sovereignty from private suit in order to protect the dignity implies, a “close and necessary relationship”3 of the sovereign.”9 As a result, suits against exists between a government’s sovereignty and Indian tribes are barred by sovereign immunity its immunity from suit, an immunity which is absent a clear waiver by the tribe or congressio- “central to sovereign dignity.”4 “The immunity nal abrogation.10 This tribal immunity applies of a truly independent sovereign from suit . . . regardless of where the tribal activity at issue has been enjoyed as a matter of absolute right occurs and whether the tribal activities at issue are governmental or commercial in nature.11

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 323 CONTRACTS agree to a provision waiving its sovereign immunity to entice the other party to the con- Since the early 1960s, the federal government tract to accept it.21 However, although a tribe’s has adhered to a policy of self-determination waiver of its immunity must be clear,22 no with respect to Indian tribes to promote eco- magic words are required to effectuate a nomic development.12 Indian tribes control waiver,23 and courts may consider the tribe to nearly 56 million acres of land and natural have waived its immunity, even if the tribe did resources which have allowed tribes to “rebuild so inadvertently. For example, in C&L Enter- their economic base” through industries like prises, Inc. v. Citizen Band Potawatomi Indian tourism and agriculture.13 “Tribes have also Tribe of Oklahoma, the U.S. Supreme Court con- developed a wide variety of businesses, includ- sidered whether a tribe waives its immunity ing manufacturing, retail, technology, banking, from suit in state court when it agrees to arbi- and gaming.”14 As a result, tribes increasingly trate disputes relating to a commercial contract find themselves negotiating and executing con- governed by state law. tracts with non-Indian partners to further economic development in Indian Country. In C&L Enterprises, the Citizen Band Pota- watomi Indian Tribe contracted with C&L As a general rule, a tribe may not be sued for Enterprises for the installation of a new roof on breach of a contract between the tribe and a a building owned by the tribe off the reserva- non-Indian individual or corporate entity. In tion. The contract contained an arbitration Kiowa Tribe of Oklahoma v. Manufacturing Tech- clause specifying that “[a]ll claims or disputes nologies, Inc., the manufacturing company sued between [C & L] and [the tribe] arising out of the Kiowa Tribe in state court to recover on a or relating to the Contract, or the breach there- promissory note executed by the tribe. The of, shall be decided by arbitration.”24 The arbi- tribe executed the note in Indian Country, but tration clause provided that enforcement of an delivered it to the manufacturing company in arbitration award would be in any court hav- Oklahoma City, outside the tribe’s jurisdic- ing jurisdiction thereof.25 The contract also con- tion.15 The note also obligated the tribe to make tained a choice-of-law clause providing that it its payments to the manufacturing company in would be governed by Oklahoma law.26 Before Oklahoma City.16 The tribe filed a motion to C&L began installing the new roof, “the Tribe dismiss based on its sovereign immunity, which decided to change the roofing material[,] . . . the district court denied. After the Oklahoma solicited new bids and retained another compa- Court of Civil Appeals affirmed the district ny to install the roof.”27 C&L submitted a demand court’s judgment and the Oklahoma Supreme for arbitration. The tribe, asserting the defense of Court declined to review the judgment, the sovereign immunity, refused to participate in the U.S. Supreme Court granted certiorari and arbitration.28 The arbitrator rendered an award reversed. In its opinion, the court held that for C&L, which then attempted to enforce the sovereign immunity bars a lawsuit against a award in state court. After initially affirming the tribe for breach of contract.17 Moreover, the award,29 the Oklahoma Court of Civil Appeals fact that the tribe delivered the promissory ruled the tribe was immune from suit on com- note and made payments to the manufactur- mercial contracts and had not expressly waived ing company in Oklahoma City and not in its immunity by agreeing to the arbitration Indian Country was of no moment. The clause.30 After the Oklahoma Supreme Court Supreme Court declined to “confine immuni- declined review, the U.S. Supreme Court granted ty from suit to transactions on reservations” certiorari and reversed. and held that tribal sovereign immunity applies regardless of where the tribal activity The U.S. Supreme Court reasoned that the occurs and whether the activity is governmen- tribe agreed to arbitrate any disputes under the tal or commercial in nature.18 contract and to the enforcement of any arbitration award in a court having jurisdiction. Fur- ARBITRATION CLAUSES AND THE ther, because the contract contained an Okla- WAIVER OF SOVEREIGN IMMUNITY homa choice-of-law provision, Oklahoma’s Of course, a tribe may be sued on its con- Uniform Arbitration Act (OUAA) applied to tracts if the contract contains a waiver of the the contract and arbitration clause between the tribe’s sovereign immunity.19 Sovereign immu- tribe and C&L.31 Pursuant to the version of the nity “may discourage certain entities from OUAA then in effect, a court of competent wanting to do business with tribes,”20 and, jurisdiction in Oklahoma could enforce arbitra- often, in negotiating a contract, a tribe will tion awards.32 The Supreme Court ruled that

324 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 the Oklahoma district courts were courts of As will be seen below, however, this waiver competent jurisdiction for the enforcement of only allows suit against a tribe in tribal court, arbitration awards.33 As a result, by agreeing to not state or federal court. arbitration and to the application of Oklahoma law, the tribe waived its sovereign immunity In 1988, Congress passed the Indian Gaming and agreed to submit itself to arbitration and Regulatory Act (IGRA). It divides gaming into be bound by the enforcement of the arbitration three classes: Class I games are social games award in Oklahoma state court.34 with nominal or no monetary prizes, and are entirely regulated by tribes. Class II gaming TORTS consists of games of chance, like bingo, and are Another common issue presented by increased regulated by tribes pursuant to tribal ordinanc- interaction between tribes and non-Indians is if es approved by the National Indian Gaming and where a tribe may be sued for tortious inju- Commission. Class III gaming includes all ries caused by non-Indians. The general sover- games not included in Classes I or II. It includes eign immunity rule applicable to breach of casino-style games like slot machines, black- contract disputes also applies to tort suits as jack, craps and roulette. Before a tribe may well.35 That is, absent a waiver or abrogation of conduct Class III gaming in its casino, the state the tribe’s immunity, a tribe enjoys immunity must legalize Class III-style games, and the from claims against it based in tort. In Seneca state and tribe must negotiate a tribal-state Telephone Company v. Miami Tribe of Oklahoma, the compact that is then approved by the secretary Oklahoma Supreme Court held that a tribe may of the interior. not be sued for its tortious activity occurring on In 2004, Oklahoma voters approved States Indian land, unless the tribe has waived or Con- Question 712 which allowed Class III gaming gress has abrogated its immunity.36 There, the in the state. It also included a model gaming Shawnee Tribe hired the Miami Tribe to perform compact which tribes may accept on a take-it- excavation work on the Shawnee Tribe’s land. or-leave-it basis. The model compact provides During the excavation, the Miami Tribe dam- that the tribe “consents to suit on a limited aged the underground telephone lines of Seneca basis with respect to tort claims.”41 Such suits Telephone Company. Seneca brought a negli- will be heard “in a court of competent 37 gence action against the Miami Tribe. The Okla- jurisdiction”42 and only if the claimant has first homa Supreme Court sided with the Miami complied with a number of tribal administra- Tribe, reversing the opinions of the trial court tive remedies.43 Although it is indisputable that and court of appeals, and concluding the the compact allows an injured casino patron to Miami Tribe’s sovereign immunity barred Sen- bring a negligence action against the tribe, the eca’s negligence action. Relying on the Supreme compact does not specify where the tribe may Court’s ruling in Mfg. Technologies, the court be sued — it only states that a suit may be explained that “‘an Indian tribe is subject to brought “in a court of competent jurisdiction.” suit only where Congress has authorized the 38 Must the patron sue the tribe in tribal court? Or suit or the tribe has waived its immunity.’” may he also file suit in state court? Although admitting its ruling seemed unfair, the court explained that it was up to Congress In 2009, the Oklahoma Supreme Court con- to abrogate the tribe’s immunity in this situa- sidered three cases, each involving a non-Indi- tion, and that until then, “[b]usinesses act at an injured while visiting a tribe’s casino and their own peril when dealing with tribes.”39 subsequently suing the tribe in state court. In a series of fractured opinions,44 the Oklahoma TORT CLAIMS AT CASINOS Supreme Court ruled that the term “court of Many injuries suffered by non-Indians occur competent jurisdiction” includes the Oklahoma when non-Indians visit the many casinos Indi- district courts. In each of the opinions, the an tribes now operate in the United States. In court reasoned that the compact does not 2011, Indian tribes operated more than 420 define the term “court of competent jurisdic- gaming facilities across the United States, pro- tion” and “nothing in the compact provides ducing approximately $27.2 billion in revenue.40 that patron tort claims are to be adjudicated Tort claims based on injuries at casinos require only in tribal court.”45 In the court’s eyes, “the a more nuanced sovereign immunity analysis simple words ‘in tribal court only’ could have because the tribal-state compacts allowing been included in the compact” to guarantee casino gambling in Oklahoma waive a tribe’s that the term “court of competent jurisdiction” sovereign immunity with respect to tort claims. was understood to only allow tort suits against

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 325 a tribe in tribal court.46 The failure to include CONCLUSION such limiting language meant that both tribal Although the doctrine of tribal sovereign and state courts were appropriate forums for immunity is sometimes difficult to navigate by adjudicating tort suits against tribes by non- Indian tribes, potential tribal business partners, Indian casino patrons. and Indian law practitioners alike, the general In light of these rulings, the Choctaw and rule of tribal sovereign immunity is straightfor- Chickasaw Tribes demanded arbitration47 with ward: a tribe is immune from suit unless Con- the state of Oklahoma and sought a declaratory gress abrogates the immunity or the tribe ruling that the compact does not waive a tribe’s clearly waives it. To avoid the harsh and poten- sovereign immunity with respect to a tort tially unfair effects that sovereign immunity claim brought in state court. An arbitrator may cause, those dealing with tribes should ruled in favor of the tribes and the U.S. District negotiate clear waivers with tribes at the outset Court for the Western District of Oklahoma to preserve their ability to seek recourse against enforced the arbitration award, issuing a per- the tribe. manent injunction preventing Oklahoma state courts from hearing tort suits brought by non- 1. Black’s Law Dictionary 766 (8th ed. 2004). 48 2. 1 W. Blackstone, Commentaries on the Laws of England 235 (1765). Indian patrons injured at tribal casinos. 3. Alden v. Maine, 527 U.S. 706, 715 (1999). 4. Id. Subsequent rulings by other Oklahoma fed- 5. Nevada v. Hall, 440 U. S. 410, 414 (1979). eral district courts have reached the same con- 6. See United States v. Sherwood, 312 U.S. 584, 586 (1941) (“The United States, as sovereign, is immune from suit save as it consents to 49 clusion. Each of these federal cases criticized be sued.”); Alden v. Maine, 527 U.S. 706 (1999) (“[T]he States’ immunity the Oklahoma Supreme Court’s rulings in from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they Cossey, Griffith and Dye. The opinions noted retain today.”). that although the compact waived the tribe’s 7. Cherokee Nation v. Georgia, 5 Pet. 1, 30 U. S. 17. Although Indian tribes are no longer “possessed of the full attributes of sovereignty,” immunity for tort suits arising out of gaming United States v. Kagama, 118 U.S. 375, 381 (1886), they nevertheless operations, the compact also provided that it maintain “inherent powers of a limited sovereignty which has never been “shall not alter tribal, federal or state civil adju- extinguished.” United States v. Wheeler, 435 U.S. 313, 322 (1978) (quoting 50 F. Cohen, Handbook of Federal Indian Law 122 (1945)). dicatory or criminal jurisdiction.” Without an 8. Okla. Tax Comm’n v. Potawatomi Tribe of Oklahoma, 498 U.S. 505, affirmative waiver of tribal immunity in state 509 (1991). 9. Bittle v. Bahe, 192 P.3d 810, 819 (Okla. 2008). court, the compact’s use of the term “court of 10. Okla. Tax Comm’n v. Potawatomi Tribe of Oklahoma, 498 U.S. 505 competent jurisdiction” could not overcome (1991) (citing Santa Clara Pueblo v. Martinez, 436 U. S. 49, 436 U. S. 58 (1978)); see also Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. IGRA’s “strong policy of promoting tribal self- 751 (1998) (“As a matter of federal law, an Indian tribe is subject to suit government . . . [which] rests on the premise that only where Congress has authorized the suit or the tribe has waived its ‘Indian tribes have the exclusive right to regu- immunity.”) (citations omitted). 11. Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, late gaming activity on Indian lands if the gam- 755 (1998) (citations omitted). ing activity is not specifically prohibited by 12. Cohen’s Handbook of Federal Indian Law 1279 (2005 ed.). 13. Id. Federal law and is conducted within a State 14. Id. which does not, as a matter of criminal law and 15. Mfg. Technologies, 523 U.S. at 753-54. 51 16. Id. at 754. public policy, prohibit such gaming activity.’” 17. Id. at 760 (“Tribes enjoy immunity from suits on contracts[.]”). 18. Id. at 755. On Jan. 29, 2013, the 10th Circuit affirmed the 19. See fn. 10, supra. district court’s decision in Santana,52 concluding 20. Carl E. Gungoll Exploration Joint Venture v. Kiowa Tribe of Okla- homa, 1998 OK 128, ¶10, 975 P.2d 442, 445. “[n]othing in . . . the compact unequivocally 21. Cohen’s Handbook of Federal Indian Law 1285 (2005 ed.) (footnote waives [a tribe’s] immunity to individual civil omitted) (“Tribes, like governments generally, have used limited waiv- tort suits in Oklahoma state court.”53 Embracing ers of tribal immunity as means of stimulating economic development.”). Moreover, even if a tribe does not contractually waive its the reasoning of the district court cases dis- immunity at the outset, it may conclude that it is not worth the poten- cussed above, the court noted that the compacts tial harm to its reputation in its local community (and the resulting business opportunities) by asserting its immunity as a defense to a state that they do not alter tribal, federal or state lawsuit. See S. Chloe Thompson, “Exercising and Protecting Tribal jurisdiction, and as a result “the phrase ‘court of Sovereignty in Day-to-Day Business Operations: What the Key Players Need to Know,” 49 Washburn Law Journal 661, 705 (2010) (“If the competent jurisdiction’ refers to tribal courts— [tribe] develops a reputation for living up to its obligations, vendors not state courts—because state courts ‘have no will undoubtedly feel more comfortable contracting with it. Moreover, authority over conduct by a tribal entity occur- vendors who have had favorable experiences with the business in the past will much more easily agree to enter into future contracts under ring on tribal land unless such authority is the tribal business’s terms.”). expressly granted to them.”54 The result of these 22. C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 418 (2001). federal opinions is that non-Indian casino 23. Id. at 420. patrons must sue the tribes in tribal court if they 24. Id. at 415. 55 25. Id. The arbitration clause also specified that it was governed by want to recover tort damages. the American Arbitration Association Rules for the construction indus-

326 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 try and under those Rules, an arbitration award may be entered in any UFDPA did not apply and sovereign immunity barred Seneca’s negli- federal or state court having jurisdiction thereof. See id. (quoting gence action. See id. at 57. American Arbitration Association, “Construction Industry Dispute 40. National Indian Gaming Commission Gaming Revenue Report Resolution Procedures,” R–48(c) (Sept. 1, 2000)). (2011), accessible at www.okbar.org/s/gamingrevenues (last accessed 26. Id. Jan. 25, 2013). 27. Id. at 416. 41. Model Tribal Gaming Compact, Part 6(A)(2), accessible at 28. Id. www.okbar.org/s/modelcompact (last accessed Jan. 25, 2013). Tribes 29. The Court of Civil Appeals initially affirmed the arbitration also waive their sovereign immunity with respect to “prize claims.” award on the grounds that the contract was between an Indian and See Part 6(B)(2). non-Indian and was executed outside Indian Country. The tribe 42. Id. at Part 6(C). appealed to the U.S. Supreme Court. While its petition for certiorari 43. For example, the claimant must “deliver[] . . . a valid and was pending, the Supreme Court decided Kiowa Tribe v. Mfg. Technolo- timely written tort claim notice to the [Tribe].” See id. at Part 6(A)(9)(a). gies, Inc., 523 U.S. 751, 760 (1998), which held that “Tribes enjoy immu- The claim must be delivered to the tribe within one year of the alleged nity from suits on contracts, whether those contracts involve govern- tortious conduct or it is forever barred. See id. at Part 6(A)(4). The claim mental or commercial activities and whether they were made on or off must also include “the date, time, place and circumstances of the inci- a reservation.” In light of this ruling, the Supreme Court remanded the dent upon which the tort claim is based, the identity of any persons case back to the Court of Civil Appeals. known to have information regarding the incident, including employ- 30. Id. at 417. ees or others involved in or who witnessed the incident, the amount of 31. Id. at 419 (“By selecting Oklahoma law to govern the contract, compensation and the basis for said relief; the name, address and tele- the parties have effectively consented to confirmation of the award ‘in phone number of the claimant, and the name, address and telephone accordance with’ the Oklahoma Uniform Arbitration Act.”) (citing number of any representative authorized to act or settle the claim on Okla. Stat. tit. 15, §802.A (1993) (repealed) (“This act shall apply to . . . a behalf of the claimant.” Id. at Part 6(A)(6). provision in a written contract to submit to arbitration any controversy 44. See Griffith v. Choctaw Casino of Pocola, 2009 OK 51, 230 P.3d 488; thereafter arising between the parties.”)) (internal citation omitted). In Dye v. Choctaw Casino of Pocola, 2009 OK 52, 230 P.3d 507; Cossey v. 2005, Oklahoma repealed the version of the Uniform Arbitration Act in Cherokee Nation Enterprises, LLC, 2009 OK 6, 212 P.3d 447. effect at the time C&L Enterprises was decided. However, the new version 45. Griffith, 230 P.3d at 496 of the OUAA contains similar language. See Okla. Stat. tit. 12, §1857(A) 46. Id. (2006) (“An agreement contained in a [contract] to submit to arbitration 47. The compact contains a “Dispute Resolution” section allowing a any existing or subsequent controversy arising between the parties to the party to the compact to refer any dispute arising under the compact — agreement is valid, enforceable, and irrevocable . . . .”). including those involving “the proper interpretation of the terms and 32. Id. (citing Okla. Stat. tit. 15, §802.B (repealed)). Oklahoma’s lat- conditions of this Compact”— to arbitration. See Compact, Part 12(2). est version of the OUAA contains similar language. See Okla. Stat. tit. 48.Choctaw Nation v. Oklahoma, 2010 WL 5798663 (W.D. Okla. Jun. 12, §1877(A)-(B) (“A court of this state having jurisdiction over the 29, 2010). controversy and the parties may enforce an agreement to arbitrate. An 49. See Harris v. Muscogee (Creek) Nation, 2012 WL 2279340 (N.D. agreement to arbitrate providing for arbitration in this state confers Okla. Jun. 18, 2012); Santana v. Muscogee (Creek) Nation, 2012 WL 896243 exclusive jurisdiction on the court to enter judgment on an award (N.D. Okla. Mar. 15, 2012); Muhammad v. Comanche Nation Casino, 2010 under the Uniform Arbitration Act.”). WL 4365568 at *10 (W.D. Okla. Oct. 27, 2010) (“Nothing in the Compact 33. Id. permits an inference that the tribe intended ‘a court of competent 34. Some have criticized the court’s holding in C&L Enterprises that jurisdiction’ to include state courts. Parts 5 and 6 of the Compact spe- the tribe waived sovereign immunity. The contract did not contain an cifically provide for the application of tribal rules and regulations to express waiver of sovereign immunity. Instead, the court arrived at the tort claims by casino patrons against the tribal gaming enterprise, and conclusion by implication, harmonizing the tribe’s agreement to arbi- those regulations limit actions to tribal court.”). trate the dispute with the Oklahoma choice-of-law clause which 50. Compact, Part 9. resulted in the application of the Oklahoma Uniform Arbitration Act, 51. Muhammad, 2010 WL 4365568 at *9-*10 (quoting 25 U.S.C. which, in turn, provided for enforcement of arbitration awards in §2701). Oklahoma state court. The court addressed this argument in its opin- 52. See supra note __. ion, however, reasoning that “[t]he waiver . . . is implicit rather than 53. Santana v. Muscogee (Creek) Nation, ex rel. River Spirit Casino, explicit only if a waiver of sovereign immunity, to be deemed explicit, 2013 WL 323223 at *2 (10th Cir. Jan. 29, 2013) must use the words ‘sovereign immunity.’ No case has ever held that.” 54. Id. (quoting Muhammad, supra note __, at *9, and citing Harris, Id. (citing Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Associ- supra note __, at *4; Choctaw Nation, supra note __, at *4). ates, Inc., 86 F. 3d 656, 660 (7th Cir. 1996) (Posner, J.)). In his opinion in 55. See id. at n.1(“We recognize the Oklahoma Supreme Court has Sokaogon, Judge Posner characterized the argument that the contract ruled in plurality decisions that Oklahoma state courts are courts of would have to expressly say the tribe waived sovereign immunity as competent jurisdiction to exercise civil adjudicatory authority over “paternalistic” and “condescending.” Sokaogon, 86 F.3d at 659-60. non-Indian tort claims brought against tribal casinos. We are not 35. See Tribal Smokeshop v. Alabama-Coushatta Tribes, 72 F.Supp.2d bound by the plurality opinions in these cases, however, because fed- 717, 719 (E. D. Tex. 1999) (“Nothing in [Mfg. Technologies] could be eral law, federal policy, and federal authority are paramount in the construed to limit sovereign immunity to contractual claims . . . . The conduct of Indian affairs in Indian Country.”) (internal citations and court made no distinction between tort and contract claims in applying quotation omitted). sovereign immunity.”); Redding Rancheria v. Superior Court, 105 Cal. Rptr.2d 773, 777 (Cal. App. 2001) (“Tort suits are not excepted from the general immunity rule.”) (citing Mfg. Technologies, 523 U.S. at 758)). About The Author 36. 253 P.3d 53, 56 (Okla. 2011). 37. Id. at 54. 38. Id. at 55 (quoting Mfg. Technologies, 523 U.S. at 754). Conor Cleary is an associate 39. Id. at 55-56. The Oklahoma Supreme Court’s ruling in Bittle v. with the Hall, Estill law firm in its Bahe, supra note __, is not to the contrary. There, the Court ruled a tribe Tulsa office. He focuses his prac- was not immune from a suit based on dram shop liability because Congress had authorized the states to regulate the sale of liquor and tice in the areas of Indian law and expressed an intent that state regulations would apply to tribal liquor litigation. He recently conducted transactions. See Bittle, supra note __, at 817-19 (citing Rice v. Rehner, 463 U.S.713 (1983)). The telephone company in Seneca argued that, and was victorious in his first com- because Congress had allowed state regulation of telecommunications mercial arbitration and second- activities, Oklahoma’s Underground Facilities Damage Prevention Act (UFDPA) applied to the Miami Tribe’s damaging of Seneca’s telephone chaired his first federal trial. He is lines. See Seneca, 253 P.3d at 54-55 (citing Okla. Stat. tit. 63, § 142.9a(B) a 2010 graduate of the OU Col- (providing that any excavator who damages underground telephone lege of Law, where he was articles editor of the Okla- lines is liable for negligence)). Seneca distinguished Bittle, explaining that “the Tribe was not engaged in any telecommunication activity. . . homa Law Review. [but] was engaged in excavation work.” See id. at 56-57. As a result, the

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 327 328 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Indian LAW Lake of the Torches An Ongoing Saga in Indian Gaming Lending By Bryan J. Nowlin n Jan. 11, 2010, the world of Indian gaming finance was upended by the U.S. District Court for the Western District of Wisconsin’s decision in Wells Fargo Bank, N.A. v. Lake of The Torches Economic O 1 Development Corp. That decision, which voided a $50 million dollar bond indenture, if upheld in its entirety would leave no recourse at law for the bond holders to realize upon their collateral. Indian gaming finance in Oklahoma is vital to the state due to the number of tribes, number of gaming facilities and opportunities for gaming facilities within this state. Therefore, any decision and the rationale that that could throw out a large-scale financing transaction is of special interest to tribal leaders and the gaming industry in Oklahoma. While the initial shock of the decision has certainly worn off with time, the decision did not provide certainty as to which loan agreements may or may not constitute void, and hence unenforceable, contracts. Interestingly in the above cases, Wells Fargo Bank, the named plaintiff, serves as trustee under the bond indenture and had no role in structuring the financing for the casino development. The bank immediately appealed upon receiving the quick ruling that the bond indenture was unenforceable, and the Seventh Circuit then affirmed the district court’s primary holding, namely that the bond indenture was void ab initio. But, the appellate court held that the bond holders might be able to seek some unspec- ified equitable relief. Voiding a $50 million transaction does not trations remain private, which means there is occur every day. In fact, most of the time there little case law on the regulatory hurdles of lend- would be no publicity pertaining to such a ruling to the Indian gaming industry. Lake of the ing due to the arbitration clauses found within Torches is rare in that it has played out in the most loan agreements with tribal gaming opera- courts and been subject to multiple published tions. These arbitration clauses also serve as an legal opinions. The litigation is ongoing and independent waiver of sovereign immunity by enlightening. the tribe, assuming that the agreement is validly When the Indian Gaming Regulatory Act executed by a tribal authority with the ability to (IGRA) became law in 1988, it sought to promote waive sovereign immunity.2 Many of these arbi- the economic development of Indian tribes by

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 329 regulating Indian gaming. Federal law and examples range from the appointment of third- regulations are intended to ensure that tribes, party receiver, the approval of operating and not outsiders, are the primary beneficiaries expenses, to a pledge of net gaming revenues.10 of Indian gaming.3 To that end, IGRA required Even the mutual selection of an auditor, which that Indian tribes, and not outsiders, are to con- by definition is limited on the tribe’s ability to trol and manage casinos in Indian Country.4 In choose the auditor of its choice, constitutes Lake of the Torches, the federal courts had thus management of part of the casino.11 far voided the bond indenture (and the ability Naturally, gaming investors and their coun- of the bond holders to realize upon their sel can be creative in hiding management con- investment) because the document was an tracts. For that reason, a management contract unapproved management contract. Because may be found within a series of agreements.12 Indian tribes and gaming facilities are to be Any agreement or series of agreements, such as protected from nefarious influence and to lending facility agreements, may be deter- ensure a level playing field as a trustee, the mined to be a management contract when the federal government requires that all contracts agreements give third parties the authority to which provide for total or partial management set policy for an Indian casino.13 Congressional of an Indian casino to be approved by the and regulatory guidance remains sparse, as chairperson of the National Indian Gaming noted by the Seventh Circuit itself.14 The regu- Commission.5 An unapproved management lations, however, are deemed sufficient by the contract is void.6 While the policy itself is rela- courts.15 In addition, the NIGC offers a free and tively straightforward, the devil of compliance confidential review process whereby the gen- is in the details. Intent is not relevant, as nearly eral counsel’s office will issue an opinion as to every agreement for which NIGC approval is whether or not a submitted document consti- not sought will boldly declare on its face that it tutes a management contract requiring the is not a management contract. A loan that nei- chairperson’s approval.16 ther party intended to provide for management of a casino is capable of being held void Perhaps more troublesome for potential casi- as an unapproved management contract. no lenders is the reality that a potential for management of a casino is sufficient to convert Neither the text of IGRA nor federal regula- an otherwise inoffensive loan into an unap- tions provide a comprehensive definition of proved management contract. The 10th Circuit what is and what is not a management con- explicitly in First Am. Kickapoo rejected the tract. The regulations define a management argument “that a contract is only a manage- contract as, “any contract, subcontract, or col- ment contract if it confers rights lateral agreement between an rather than opportunities to Indian tribe and a contractor… manage.”17 The reality remains if such contract or agreement that lenders require security for provides for the management Naturally, gaming a loan to ensure that it is repaid. of all or part of a gaming opera- Uncertainties as to repayment tion.” Management is itself investors and typically lead to higher interest undefined. However, the regu- rates. Common sense dictates lations define a management their counsel can that the greater security, the official as any person, “who has be creative in lower the interest rate avail- authority . . . [t]o set up work- able. The 7th Circuit in Lake of ing policy for the gaming hiding management the Torches held that a number operation.”7 In 1994 the NIGC of provisions which become issued advice stating that man- contracts. operative in the event of default agement comprises many activ- rendered that bond indenture ities such as “planning or-ganiz- to be a management contract.18 ing, directing, coordinating, and controlling.”8 Contingent management still constitutes man- The NIGC further explained that, “the perfor- agement of an Indian casino. mance of any one of such activities with respect to all or part of a gaming operation constitutes The NIGC Office of General Counsel main- management for the purpose of determining tains that the pledge of gross gaming revenues whether any contract or agreement for the per- without limitation allows for potential man- formance of such activities is a management agement of a casino. As explained by then- contract that requires approval.”9 Specific Acting General Counsel Penny Coleman, “We

330 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 take this position because in the event of ments, taken alone or together, evince an default, a party with a security interest in a intent on the part of the Corporation to gaming facility’s gross revenues has the author- waive sovereign immunity with respect to ity to decide how and when operating expens- claims by Wells Fargo on its own behalf es at the gaming facility are paid, which is itself and, if it has standing to do so, on behalf of a management function. Furthermore, a party the bondholder.”25 that controls gross revenue potentially can con- What happened next in the federal litigation trol everything about the gaming facility by provides little help to anyone. Wells Fargo did allocating or putting conditions on the pay- file its amended complaint, but that amended ment of operating expenses. Therefore, agree- complaint attempted to add parties to destroy ments with such a security interest constitute the diversity jurisdiction of the federal court. In management contracts that are void unless and the words of Judge Randa, “It isn’t very often until they are approved by the chairman of the that a case comes before the court in which National Indian Gaming Commission.”19 The both parties want the case to be dismissed, NIGC has approved limiting language to be albeit for different reasons.”26 The district court used in loan agreements to eliminate this con- then entered an order to show cause why Wells cern and ensure that the pledge of revenues Fargo should not be sanctioned. While it did does not lead to management of the gaming persuade the court of a good faith basis to join facility.20 new parties to the suit, Wells Fargo ultimately An unapproved management contract is void changed tack and filed a notice of voluntary ab initio. While severability clauses are com- dismissal pursuant to Fed. R. Civ. P. 41. The mon in all contracts, such clauses cannot be voluntary dismissal, filed on June 28, 2012, given effect in a void management contract. A may have achieved the lender’s goal of pre- void management contract is not a contract at venting a ruling on the merits of the bond all, and none of its provisions, including a sev- indenture, or at least delaying a final ruling for erability clause, were ever lawfully agreed by when the tribe brings suit. (If not preclusive, the parties.21 There simply are no clauses to any future court reviewing the bond indenture enforce, including the severability clause.22 The will likely find the 7th Circuit’s opinion highly waiver of sovereign immunity likewise fails. persuasive.). And without the waiver of immunity, a tribe’s Under Oklahoma law it is apparent that a gaming entity or the tribe itself, cannot even be party should not be able to recover on an hauled into court. The tribe is also at risk. unjust enrichment theory under a contract that When the NIGC finds that a tribe allowed a is void for public policy.27 Any person claiming casino to operate under an unapproved man- an equitable right to recover for evading NIGC agement contract, it may close the facility and scrutiny surely would qualify for unclean enforce penalties.23 hands.28 “Courts have long recognized that What remains unclear from the 7th Circuit’s Indian tribes possess common law immunity opinion is whether a lender may recover funds from lawsuits.”29 Furthermore, “[t]ribes enjoy on a void lending contract under any equitable immunity from suits on contracts, whether cause of action. Sovereign immunity bars both those contracts involve governmental or com- actions at law and equity.24 However, the panel mercial activities and whether they were made held that Wells Fargo should be allowed to on or off a reservation,”30 because “sovereign amend its complaint before the case could be immunity is an immunity from trial and the dismissed with prejudice for lack of subject attendant burdens of litigation, and not just a matter jurisdiction. The court held: defense to liability on the merits.”31 Put more directly, the disappearance of a sovereign “In sum, on remand, the district court immunity waiver along with all clauses in a should grant Wells Fargo’s motion for contract render recovery, even under equitable leave to file an amended complaint insofar causes of action, highly unlikely. as it states claims for legal and equitable relief in connection with the bond transac- The result of the Lake of the Torches saga will tion. The court should then address wheth- still not be known for some time. Despite the er Wells Fargo’s standing to seek such relief dismissal, litigation continues in new lawsuits on behalf of the bondholder survives the filed by the bond holders in state court as voiding of the Indenture. It should proceed noted by Judge Randa’s March 30, 2012, order, to address whether the transactional docu- and in the Western District of Wisconsin itself

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 331 where a new lawsuit was filed against the Lake 10. Wells Fargo Bank, N.A., v. Lake of the Torches Economic Develop- ment Corp., 658 F.3d 684 (7th Cir. 2011). of the Torches Economic Development Corpo- 11. In re the March 26,2008 disapproval of a management contract ration regarding the debt evidenced by the between New Gaming Systems Inc. and the Sac & Fox Nation of Oklahoma, Final Order, National Indian Gaming Commission (May 22, 2008). bonds but without Wells Fargo as a named 12. See, e.g., United States ex rel Bernard v. Casino Magic Corp., 293 plaintiff.32 The lessons to be learned remain F.3d 419, 424-25 (8th Cir. 2002) (series of agreements that gave the contractor “a percentage ownership interest in the tribe’s indebted- unclear, but it is certainly a cautionary tale. ness” and “mandated the tribe’s compliance” with the contractor’s recommendations is a management contract). Counsel representing both tribes and lenders 13. Id. 14. Lake of the Torches, 658 F.3d at fn 17. must be mindful of the NIGC’s position regard- 15. New Gaming Systems v. NIGC, Order at p. 10, 08-CV-698-HE ing gross revenues and other management (W.D. Okla. Sept. 13, 2012) (affirming NIGC decision regarding man- features which become operative upon default. agement contract and rejecting challenge to enforceability of regulations for vagueness). Counsel should also be prepared to recom- 16. Judge Randa noted, “Given the size of the transaction and the mend and to use the NIGC’s review process complicated nature of the regulatory scheme, it is a bit surprising that Wells Fargo did not insist upon NIGC review and approval.” Lake of the which at no expense will review a proposed Torches, 677 F.Supp.2d at 1062. To be fair, Wells Fargo was not involved contract and issue a yea or nay opinion on its in the drafting and negotiation of the bond indenture and therefore was unlikely to have been in a position to insist upon an NIGC declina- management features. Finally, on the litigation tion letter. Review letters may be viewed at www.nigc.gov/Reading_ front, counsel should advise both lenders and Room/Management_Review_Letters.aspx. 17. 412 F.3d at 1175; Lake of the Torches, 677 F.Supp. 2d at 1060-1. tribes that nothing is absolutely certain regard- 18. Wells Fargo Bank, N.A., v. Lake of the Torches Economic Develop- ing the insertion of a management contract ment Corp., 658 F.3d 684 (7th Cir. 2011). 19. Acting General Counsel Penny Coleman to Kent Richey, Jan. 23, issue into a dispute. However, counsel for a 2009 available at: www.okbar.org/s/nigc (last accessed Jan. 25, 2013) tribe should not cower from raising the issue. It 20. “Notwithstanding any provision in any Loan Document, none of the Lending Parties shall engage in any of the following: planning, may seem counterintuitive to many, but a tribe organizing, directing, coordinating, or controlling all or any portion of who has signed an unapproved management the Borrower’s gaming operations (collectively, “Management Activi- ties”). including, but not limited to...” Id. contract even though it receives loan proceeds, 21. First Am. Kickapoo, 412 F.3d at 1176 (an unapproved manage- has still been wronged. Tribes are entitled to ment contract “does not become a contract”). 22. See Lake of the Torches, 677 F.Supp. 2d at 1061 n. 3. the protections attendant with NIGC review. 23. 25 U.S.C. §2713. The NIGC’s role as a regulator of gaming in 24. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-9 (1978) (holding sovereign immunity bars suit against tribe for declaratory and pro- Indian Country is part of the United States spective injunctive relief). government’s trust responsibility. That some 25. Lake of the Torches, 658 F.3d at 701-2 (7th Cir. 2011). lenders believe it is unconscionable that a tribe 26. Wells Fargo v. Lake of the Torches, Decision and Order, 09-CV-768 (W.D. Wis. March 30, 2012). may be able to free itself from a loan, miss the 27. To hold otherwise would run the precarious position of allow- point of the regulations which aim to ensure ing a drug dealer’s investors to seek redress through the courts despite the illegal aims of their business. that tribal members, and not outsiders, are the 28. Tulsa Torpedo Co. v. Kennedy, 1928 OK 383, 268 P. 205. primary beneficiaries of Indian gaming reve- 29. Santa Clara Pueblo, 436 U.S. at 58. 30. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 760 (1998); nues. Indian gaming should remain an Indian Berrey v. Asarco Inc., 439 F.3d 636, 643 (10th Cir. 2006) (holding that resource. Tribes are entitled to this protection. federally recognized Indian tribes possess immunity from suit in federal court). Those lenders and investors who wish to com- 31. Enahoro v. Abubakar, 408 F.3d 877, 880 (7th Cir. 2005) (quotation ply face a complicated but not an impossible omitted). 32. See Complaint, Saybrook Tax Exempt Investors, et al. v. Lake of the task of compliance. Torches, 12-CV-255 (W.D. Wis. filed April 9, 2012). 1. Wells Fargo Bank, N.A. v. Lake of The Torches Economic Development Corp., 677 F.Supp.2d 1056, 1061 (W.D. Wis. 2010), affirmed in part and rev’d in part, 658 F.3d 684, 702 (7th Cir. 2011). About The Author 2. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (1998) (holding arbitration clause also itself serves as a waiver of sovereign immu- Bryan J. Nowlin is an associate nity); See also, Dilliner v. Seneca-Cayuga Tribe, 2011 OK 61, 258 P.3d 516 (holding a purported sovereign immunity waiver’s validity must be with the law firm of Hall Estill in determined in accord with tribal law). its Tulsa office. He focuses his 3. 25 U.S.C. §2702(2). 4. Wells Fargo Bank, N.A. v. Lake of the Torches Economic Development practice in the areas of complex Corp., 658 F.3d 684, 695 - 700 (7th Cir. 2011) (IGRA’s management con- litigation, Indian law, and trusts tract provisions exist “to ensure that the tribes retain control of gaming facilities set up under the protection of IGRA and of the revenue from and estate planning litigation. these facilities..”); Casino Res. Corp. v. Harrah’s Entertainment, Inc., 243 He litigates on behalf of clients F.3d 435, 438 fn.3 (8th Cir. 2001) (“IGRA recognizes a tribe’s authority in numerous federal, state and to enter into contracts for the management and operation of an Indian gaming facility by an entity other than the tribe or its employees, so tribal courts throughout Okla- long as certain requirements are satisfied and subject to approval by homa including multiple appearances in the Ameri- the Chairman of the National Indian Gaming Commission.”). 5. 25 U.S.C §2710(d)(9) and 2711(a)(1). can Arbitration Association. He served as editor-in- 6. 25 C.F.R. §533.7. chief of the American Indian Law Review and also 7. 25 C.F.R. §502.19. 8. NIGC Bulletin 1994-5, available at www.nigc.gov/Reading_ writes on Indian law topics on his blog which can be Room/Bulletins/Bulletin_ No._1994-5.aspx. found at www.oklahomaindianlaw.com. 9. Id.

332 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013    

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    334 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Indian LAW When One Trust Isn’t Enough Why AIPRA Should Be Revised to Allow Testators to Create Testamentary Trusts for Trust Lands By Rhonda McLean

hose who prepare wills for owners of Indian trust lands know that each client feels strongly about the preservation Tof their historic lands. Each believes it to be his or her responsibility to ensure that every succeeding generation has the same opportunity to benefit financially, emotionally and spiritu- ally from the lands passed on through the ancestry. Part of that responsibility is the careful selection of who should receive the trust lands, and the consequences of leaving such lands to a minor or incompetent child or grandchild.

Our client Mary is divorced and owns an inter- ruled that when undisputed evidence before the est in a tract of trust land located in Oklahoma. trial court establishes that a parent is competent Mary has one daughter, Sheila, who is a minor. to transact his own business and is not other- Mary wants to make a will to ensure that her wise unsuitable or disqualified under existing interest in the trust lands stays within her family, law, that parent has a prior right to be appointed and does not revert back to her tribe.1 Also, Mary guardian of his children’s estates. desperately wants Sheila to be taken care of. What What if in our case Mary left Sheila’s father if Mary wanted to leave all of her trust lands to because he was abusive? In the case of domestic Sheila, but does not want Sheila’s father to have violence, Oklahoma has a presumption against access to or benefit from the lands? custody where the parent has been convicted of MINOR CHILDREN AND DOMESTIC domestic violence. 43 Okla. Stat. §109 provides, ABUSE in part: At this point, we have to explain to Mary that In every proceeding in which there is a dis- she can name a guardian over Sheila in her will; pute as to the custody of a minor child, a however, there is no guarantee that the court determination by the court that domestic will honor that wish, and Sheila’s father could violence, stalking, or harassment has become her guardian. In Oklahoma, it is settled occurred raises a rebuttable presumption law that upon the death of one parent, there is a that sole custody, joint legal or physical cus- presumption of custody or guardianship grant- tody, or any shared parenting plan with the ed to surviving biological parent. In 1982, the perpetrator of domestic violence, harassing Supreme Court of Oklahoma in Buxton v. Wilson2 or stalking behavior is detrimental and not

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 335 in the best interest of the child, and it is in the best interest of the child to reside with … for some clients this the parent who is not a perpetrator of domestic violence, harassing or stalking creates a real dilemma because behavior. for one reason or another, the No Oklahoma cases have been reported wherein the court addresses how the presump- client does not trust the guardian tion against custody for domestic violence is and does not want the guardian balanced with the presumption that at the death of one parent, the surviving parent is presumed to exercise any kind of control to be the guardian. So the question remains: If or decision making over the one parent is convicted of domestic abuse against the other parent, and the abused parent dies, trust property. does the abusive parent have a presumption of custody and/or guardianship? If appointed as Sheila’s guardian, Sheila’s stealing more than $300,000 from her minor 5 father will have the same access to the trust son’s medical malpractice settlement. property that Mary herself had before she died. A NOT-SO-SIMPLE SOLUTION Mary’s next question is: How do I leave my trust property to Sheila without risking Sheila’s If Mary did not own trust lands, the answer father having control of the property? would be simple. Mary would be advised to leave her interest in her lands to a trust, giving INCOMPETENCY her the flexibility to name a person other than It is not uncommon for a client to wish their the guardian to exercise control over the lands property to be devised to an incapacitated fam- and allowing her to place as many or as few ily member. Just like the minor children dis- restrictions on the trustee as she wishes. How- cussed above, the drafter must explain to the ever, for the reasons discussed below, since testator that upon the client’s death, the incom- Mary owns an interest in Indian trust lands, petent devisee’s guardian will have access to this is not an option. the trust property just as the client does. For In creating her testamentary trust, Mary has some clients this is not an issue, and the client the ability to designate at what point she wants is comfortable with that arrangement. Howev- the trust to terminate, and the trust property to er, for some clients this creates a real dilemma be distributed to Sheila.6 If she were to so because for one reason or another, the client choose, Mary could delay distribution of the does not trust the guardian and does not want property to Sheila until she reached a more the guardian to exercise any kind of control or mature age, for example 30 or 35. If the prop- decision making over the trust property. Once erty is distributed to Sheila at Mary’s death again the drafter is asked: How do I make sure (under the supervision of Sheila’s guardian), the incompetent devisee benefits from our ances- Sheila will obtain full control of the property at tral lands but prevent the guardian from being the termination of the guardianship, which able to diminish the incompetent’s interest? will happen automatically when Sheila reaches 7 FINANCIAL EXPLOITATION the age of majority. The American Indian Probate Reform Act8 Not limited to physical violence, testators are (AIPRA) applies to probates of wills for dece- also concerned about financial exploitation of dents who died after June 20, 2006.9 AIPRA minor children. There has been a recent trend allows for a testator to devise his interest in in identity theft by parents, including using the Indian trust lands to “eligible heirs:” Social Security numbers of minor children to set up fraudulent accounts that the victims might 1) any lineal descendant of the testator; not discover for years.3 In Minnesota, a mother 2) any person who owns a preexisting undi- was convicted of theft by temporary control for vided trust or restricted interest in the gambling with funds intended to be deposited same parcel of land; in her daughter’s trust fund account.4 In Ohio, a mother pleaded guilty to theft and forgery after 3) the Indian tribe with jurisdiction over the

336 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 interest in land; or ed an approved tribal probate code18 the decedent’s interest will pass under that code. If 4) any Indian;10 there is not an applicable tribal probate code, in trust or restricted status.11 the decedent’s interest will pass under AIPRA, based on the decedent’s percentage ownership Any land that is not devised as listed above of the tract. In either event, a practitioner may only be devised as a life estate to any per- should be aware that the intestacy law is likely son (with restrictions on who the remainder different from the Oklahoma intestacy law.19 can be devised to) or as a fee interest without federal restrictions against alienation to any person Back to our client Mary, regardless of wheth- who is not eligible to be a devisee under clause 4 er her lands pass under AIPRA or a tribal code, (above).12 neither option will protect her assets from potentially being reachable by Sheila’s father if AIPRA allows tribes to pass, with the approv- Sheila were to inherit the lands while she was al of the secretary of the interior,13 certain codes still a minor. Neither would she have any con- that alter how trust property is passed through trol over who can manage the interests if Sheila probate. For example, a tribe can enact a pro- were to inherit the lands while incompetent. bate code that differs from how a person’s land will be inherited if that person dies without a CONCLUSION will.14 Additionally, certain tribes can enact a Native American testators should be allowed code that allows for a testator to leave his land to devise their interests in their properties in to certain parties in fee,15 thus removing the the way that they and their attorneys deem trust protection from the land. best for their situation. Limitations on who can inherit trust property, and particularly limita- However, the amount of autonomy the tribe tions on the management of that trust property, has in enacting its code is limited. For example, only serve to further frustrate the problems fac- a tribe cannot enact a code that prohibits the ing the Native American population. Without devise of interest in trust or restricted land to congressional intervention and an amendment an Indian lineal descendant of the original allot- to AIPRA that allows for testamentary trusts to tee or an Indian who is not a member of the protect minors and incompetents, the hands of Indian tribe with jurisdiction over such an inter- people like Mary continue to be tied. est unless certain requirements are met.16 Fur- ther, there is no authorization in AIPRA that 1. See discussion infra regarding the American Indian Probate allows a tribe to enact a code allowing a testator Reform Act. 2. Buxton v. Wilson, 654 P.2d 1048 (Okla. 1982). See also Okla. Stat. to leave his interest in trust lands to a testamen- tit. 58 §769 (1971), renumbered as OKLA. STAT. tit. 30 §2-106. tary trust for the benefit of an Indian heir. 3. Mellody Hobson and Laura Zaccaro, “America’s Money: Parents Stealing Kids’ Identities in Alarming Trend,” www.okbar.org/s/ Because AIPRA does not specifically allow moneykids, (accessed Jan. 22, 2013) and Huffington Post, “Some Par- ents Are Now Stealing Their Children’s Credit”, www.okbar.org/s/ testators to devise their interest in their Indian creditkids, (accessed Jan. 22, 2013). trust lands to a testamentary trust, some prac- 4. State of Minnesota v. Franklin, 692 N.W.2d 82 (Minn. Ct. App. 2005) review denied (April 19, 2005). titioners fear that any such attempt in a will 5. State of Ohio v. Rhinebolt, 2008 Ohio 6218. would cause the testator’s interest to fall out of 6. “Such express trusts shall be limited in the duration thereof either to a definite period of not to exceed twenty-one (21) years, or to Indian trust status, thereby subjecting the inter- the period of the life or lives of the beneficiary or beneficiaries thereof ests to state and federal taxation. Additionally, in being at the time of the creation of the trust. The instrument creating the trust shall specify the period of duration thereof within the limita- once the lands fall out of Indian trust status, tions herein provided.” Okla. Stat. tit. 60 §172. the individual beneficiaries of the Indian trust 7. Okla. Stat. tit. 30 §2-114. 8. 118 Stat. §1773 (2004). lands are no longer afforded the protections 9. Douglas Nash and Cecelia Burke, Passing Title to Tribal Land and consequential to the trust status. For Mary, Federal Probate of Native American Estates (Dec. 8, 2006). 10. 25 U.S.C.A. §2201 (2008) defines Indian as follows: having the lands fall out of trust status is not a (A) any person who is a member of any Indian tribe, is eligible to risk she is willing to take. become a member of any Indian tribe, or is an owner (as of the date of enactment of the American Indian Probate Reform Act of If an attorney were to write an Indian will 2004) of a trust or restricted interest in land; (B) any person meeting the definition of Indian under the Indian devising the property to a testamentary trust, it Reorganization Act (25 U.S.C.A. 479) and the regulations pro- is possible that the court would interpret that mulgated thereunder; and (C) with respect to the inheritance and ownership of trust or provision as invalid and declare it void. In that restricted land in the State of California pursuant to section 207, event, AIPRA dictates that because the clause is any person described in subparagraph (A) or (B) or any person who owns a trust or restricted interest in a parcel of such land in void, the land will pass under the appropriate that State. intestacy law.17 If the applicable tribe has enact- 11. 25 U.S.C.A. § 2206(b)(1)(A) (2008).

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 337 12. 25 U.S.C.A §2206(b)(2)(A)(ii) (2008) (emphasis added). 13. 25 U.S.C.A. §2205(b)(1) (2005). About The Author 14. 25 U.S.C.A. §2205(a)(1) (2005). 15. 25 U.S.C.A. §2206(b)(2)(B)(ii)(I) (2008). Rhonda McLean is an associ- 16. 25 U.S.C.A. §2205(a)(3) (2005). 17. 25 U.S.C.A. §2206(b)(4) (2008) and 25 U.S.C.A. § 2206(h)(6) ate with Andrews Davis PC in (2008). Oklahoma City. Her practice 18. 25 U.S.C.A. §2205. 19. Okla. Stat. tit. 84 §213. focuses on oil and gas matters and she has experience in matters involving Indian lands. She is a member of the Ruth Bader Ginsburg Inn of Court, Mineral Lawyers Society, Central Okla- homa Mensa, Phi Delta Phi and Order of the Barristers. She received her J.D. degree and American Indian Law certificate in 2011 from the OCU School of Law.

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n November n April 2013 Raising the Bar: Lawyers Law Day n March Who Make a Difference Editor: Carol Manning Technology Editor: Melissa DeLacerda n May Editor: Sandee Coogan [email protected] Diversity in the Law [email protected] Deadline: Aug. 1, 2013 Editor: January Windrix Deadline: Oct. 1, 2012 n December [email protected] n April Ethics & Professional Deadline: Jan. 1, 2014 responsibility Law Day n August Editor: Joe Vorndran Editor: Carol Manning Children and the Law [email protected] Editor: Sandee Coogan n May Deadline: Aug. 1, 2013 Estate Planning & Probate [email protected] Editor: Pandee Ramirez Deadline: May 1, 2014

[email protected] 2014 n September Deadline: Jan. 1, 2013 n January Bar Convention n August Meet Your OBA Editor: Carol Manning Editor: Carol Manning Criminal Law n October Editor: January Windrix n February Health Care [email protected] Alternate Dispute Resolution Editor: Emily Duensing Deadline: May 1, 2013 Editor: Judge Megan Simpson [email protected] n September [email protected] Deadline: May 1, 2014 Deadline: Oct. 1, 2013 Bar Convention n November Editor: Carol Manning n March President’s Topic n October Business Litigation Editor: Melissa DeLacerda Appellate Law Editor: Mark Ramsey [email protected] Editor: Emily Duensing [email protected] Deadline: Aug. 1, 2014 [email protected] Deadline: Oct. 1, 2013 n December Deadline: May 1, 2013 Ethics & Professional Responsibility If you would like to write an article on these Editor: Judge Allen Welch [email protected] topics, contact the editor. Deadline: Aug. 1, 2014

338 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 LEGISLATIVE NEWS

Committee Reviews Proposed Legislation Bar Members Urged to Attend Day at the Capitol By Duchess Bartmess

Again this year, a group of • Energy, Oil, Gas, Minerals, interested bar members met to Environment & Natural review bills and joint resolutions Resources introduced in both the House • General Government — and Senate for the purpose of Local & State recommending measures that should be monitored throughout • Probate, Guardianship & the session by the OBA Legisla- Trusts tive Monitoring Committee. Appropriation bills, sunset bills, • Public Health, Safety bills addressing issues regarding & Welfare state retirement systems, and • Real Property, Landlord measures that do not have sig- & Tenant nificant legal impact such as naming bridges and roads were • Revenue & Tax not reviewed. • Transportation & Motor At the beginning of each new Vehicles Legislature, the number of sub- • Workers’ Compensation committees created and the subject areas to be addressed Of the nearly 2,500 measures by the various subcommittees introduced, more than 400 have are established. been designated of significance for review and analysis. The For both sessions of the 54th committee’s primary mission Oklahoma Legislature, the 15 continues to be to inform bar subcommittees of the Legislative members of pending legisla- Monitoring Committee are: tion of significance to the prac- • Children & Family Law tice of law in Oklahoma and to provide assistance to members • Civil Law & Procedure of the Legislature to produce clear, constitutional, • Commercial Law, Business Entities, technically accurate laws for the state of Okla- Insurance & Contracts homa that are void of unintended consequences. Summaries of the bills being monitored (and • Constitutional Law the status of each) can be found on the OBA website at www.okbar.org/s/billsummaries. • Courts, Judiciary & Attorneys This information is updated weekly. For the • Criminal Law & Procedure most current status of a bill, go to the Legisla- ture’s website at www.oklegislature.gov. • Education — Common and Higher

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 339 Therefore, in furtherance of the committee’s mission, efforts will be increased to work with other bar committees and sections, as appro- OBA DAY at the CAPITOL priate, for an even more comprehensive anal- Tuesday, March 12, 2013 ysis of the significant measures assigned to subcommittees. Oklahoma Bar Center 11 a.m. Welcome The OBA has five bills on its legislative Jim Stuart agenda, passed by the House of Delegates in OBA President November. Read Executive Director John Mor- 11:05 a.m. Issues from the Speaker’s Office ris Williams’ article in this issue for informa- Rick Rose tion on those bills. 11:15 a.m. Bills of Interest to the Judicial Conference Members are invited to communicate with the Judge James B. Croy committee for information regarding pending 11:30 a.m. Bills of General Interest measures or to provide comments or assistance Thad Balkman to the committee in its efforts on behalf of OBA 11:45 p.m. Break for Lunch* members. 12:00 p.m. Defense Issues Grady Parker DAY AT THE CAPITOL 12:15 p.m. Plaintiff Issues Speaker TBA All members are encouraged to come to Okla- 12:30 p.m. Criminal Law Issues homa City to participate in OBA Day at the D. Michael Haggerty II Capitol, March 12. This is a great opportunity to 12:45 p.m. OBA Bills speak to your legislators in person about impor- John Morris Williams tant issues. The OBA is providing a free lunch OBA Executive Director that day, but you need to RSVP. 1 – 3 p.m. Adjourn and Meet with Legislators Ms. Bartmess practices in Oklahoma City and at the State Capitol chairs the Legislative Monitoring Committee. She *Please RSVP if attending lunch to: can be reached at [email protected]. [email protected] or call 405-416-7014; 800-522-8065

340 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 BAR NEWS

ANNUAL REPORT OF THE PROFESSIONAL RESPONSIBILITY COMMISSION AS COMPILED BY THE OFFICE OF THE GENERAL COUNSEL OF THE OKLAHOMA BAR ASSOCIATION January 1, 2012 through December 31, 2012 SCBD No. 5695 (Filed with Oklahoma Supreme Court, February 1, 2013)

Pursuant to the provisions of Rule 14.1, Rules and Debra Thompson, Carney. Melissa Griner Governing Disciplinary Proceedings (RPDP), 5 DeLacerda served as Chairperson and Tony R. O.S. 2011 Ch. 1, App. 1-A, this is the Annual Blasier served as Vice-Chairperson. Commis- Report of grievances and complaints received sion members serve without compensation but and processed for 2012 by the Professional are reimbursed for actual travel expenses. Responsibility Commission and the Office of RESPONSIBILITIES the General Counsel of the Oklahoma Bar Association. The Professional Responsibility Commission THE PROFESSIONAL RESPONSIBILITY considers and investigates any alleged ground COMMISSION for discipline, or alleged incapacity, of any lawyer called to its attention, or upon its own The Commission is composed of seven per- motion, and takes such action as deemed sons — five lawyer and two non-lawyer mem- appropriate, including holding hearings, bers. The attorney members are nominated for receiving testimony, and issuing and serving rotating three-year terms by the President of the subpoenas. Association subject to the approval of the Board of Governors. The two non-lawyer members are Under the supervision of the Professional appointed by the Speaker of the Oklahoma Responsibility Commission, the Office of the House of Representatives and the President Pro General Counsel investigates all matters involv- Tempore of the Oklahoma Senate, respectively. ing alleged misconduct or incapacity of any No member can serve more than two consecu- lawyer called to the attention of the General tive terms. Terms expire on December 31st at the Counsel by grievance or otherwise, and reports conclusion of the three-year term. to the Professional Responsibility Commission the results of investigations made by or at the Lawyer members serving on the Professional direction of the General Counsel. The Profes- Responsibility Commission during 2012 were sional Responsibility Commission then deter- Melissa Griner DeLacerda, Stillwater; Angela mines the disposition of grievances or directs Ailles Bahm, Oklahoma City; William R. the instituting of a formal complaint for alleged Grimm, Tulsa; Jon K. Parsley, Guymon; and misconduct or personal incapacity of an attor- Stephen D. Beam, Weatherford. Non-Lawyer ney with the Oklahoma Supreme Court. The members were Tony R. Blasier, Oklahoma City; attorneys in the Office of the General Counsel

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 341 prosecute all proceedings under the Rules DISCIPLINE BY THE PROFESSIONAL Governing Disciplinary Proceedings, supervise RESPONSIBILITY COMMISSION the investigative process, and represent the 1. Formal Charges. During 2012, the Com- Oklahoma Bar Association at all reinstatement mission voted the filing of formal disciplinary proceedings. charges against 12 lawyers involving 29 griev- VOLUME OF GRIEVANCES ances. In addition, the Commission also over- During 2012, the Office of the General saw the filing of nine Rule 7 matters filed with Counsel received 279 formal grievances the Chief Justice of the Oklahoma Supreme involving 181 attorneys and 1149 informal Court. grievances involving 891 attorneys. In total, 2. Private Reprimands. Pursuant to Rule 5.3(c) 1,428 grievances were received against 979 of the Rules Governing Disciplinary Proceed- attorneys. The total number of attorneys dif- ings, the Professional Responsibility Commission fers because some attorneys received both has the authority to impose private reprimands, formal and informal grievances. In addition, with the consent of the attorney, in matters of less the Office handled 493 items of general cor- serious misconduct or if mitigating factors reduce respondence, which is mail not considered to the sanction to be imposed. During 2012, the be a grievance against an attorney. Commission issued private reprimands to 20 On January 1, 2012, 251 formal grievances attorneys involving 30 grievances. were carried over from the previous year. During 2012, 279 new formal grievances were opened for investigation. The carryover accounted for a total caseload of 530 formal investigations pending throughout 2012. Of those grievances, 273 investigations were completed by the Office of the General Coun- sel and presented for review to the Profes- sional Responsibility Commission. Therefore, 257 investigations were pending on Decem- ber 31, 2012. The time required for investigating and concluding each grievance varies depending on the seriousness and complexity of the alle- 3. Letters of Admonition. During 2012, the gations and the availability of witnesses and Commission issued letters of admonition to 28 documents. The Professional Responsibility attorneys involving 46 grievances cautioning Commission requires the Office of the Gen- that the conduct of the attorney was danger- eral Counsel to report monthly on all infor- ously close to a violation of a disciplinary rule mal and formal grievances received and all wherein the Commission believed warranted a investigations completed and ready for dis- warning rather than discipline. position by the Commission. In addition, the Commission receives a monthly statistical report on the pending caseload. The Board of Governors is advised statistically each month of the actions taken by the Professional Responsibility Commission.

4. Dismissals. The Commission dismissed 166 grievances where the investigation revealed lack of merit or loss of jurisdiction over the respondent attorney. Loss of jurisdiction included the death of the attorney, the resignation of the attorney pending disciplinary proceed-

342 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 ings, a continuing lengthy suspension or disbar- SURVEY OF GRIEVANCES ment of the respondent attorney, or due to the In order to better inform the Supreme Court, attorney being stricken from membership for the bar and the public of the nature of the non-compliance with MCLE requirements or grievances received, the numbers of attorneys non-payment of dues. complained against, and the areas of attorney 5. Diversion Program. The Commission may misconduct involved, the following informa- also refer respondent attorneys to the Disci- tion is presented. pline Diversion Program where remedial mea- Total membership of the Oklahoma Bar Asso- sures are taken to ensure that any deficiency in ciation as of December 31, 2012 was 17,232 the representation of a client does not occur in attorneys. The total number of members include the future. During 2012, the Commission 11,843 males and 5,389 females. Formal and referred 30 attorneys to be admitted into the informal grievances were submitted against Diversion Program for conduct involving 53 979 attorneys. Therefore, less than six percent grievances. of the attorneys licensed to practice law by the The Discipline Diversion Program is tailored Oklahoma Supreme Court received a griev- to the individual circumstances of the partici- ance in 2012. pating attorney and the misconduct alleged. A breakdown of the type of alleged attorney Oversight of the program is by the OBA Ethics misconduct alleged in the 279 formal griev- Counsel with the OBA Management Assistance ances received by the Office of the General Program Director involved in programming. Counsel in 2012 is as follows: Program options include: Trust Account School, Professional Responsibility/Ethics School, Law Office Management Training, Communication and Client Relationship Skills, and Profession- alism in the Practice of Law class. In addition to one or more of these instructional classes, the following resources can be made a part of the individual’s Diversion Program Agree- ment: Management Assistance Program Office Review, Lawyers Helping Lawyers Assistance Program, Medical/Psychological Monitoring and Mentor/Peer Referral. Instructional cours- es are taught by OBA Ethics Counsel Travis Pickens and OBA Management Assistance Pro- gram Director Jim Calloway. Of the 279 formal grievances, the area of practice is as follows: As a result of the Trust Account Overdraft Reporting Notifications, the Office of the Gen- eral Counsel is now able to monitor when attorneys encounter difficulty with basic accounting procedures and management of their IOLTA accounts. Upon recommendation of the Office of the General Counsel, the Professional Responsi- bility Commission may place those individuals in a tailored program designed to address basic trust accounting procedures.

2012 Attorney Participation in Diversion Program Curriculum Law Office Management Training: 17 Attorneys Communication and Client Relationship Skills: 19 Attorneys Professionalism in the Practice of Law: 3 Attorneys Professional Responsibility/Ethics School: 17 Attorneys Client Trust Account School: 12 Attorneys

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 343 The number of years in practice of the 181 Disciplinary Suspensions: attorneys receiving formal grievances is as Respondent length effective Date follows: Amy Lynn McTeer Interim 02/14/12 Thomas Prade 2 years + Bellamy 1 day 03/06/12 G. Wayne Rule 7 Olmstead Interim 03/12/12 G. Wayne Olmstead 1 year 03/12/12 Tammy Rule 7 Bass-LeSure Interim 03/12/12 James Albert 2 years + Conrady 1 day 04/03/12 The largest number of grievances received Joshua Todd Rule 7 were against attorneys who have been in prac- Welch Interim 04/19/12 tice for 26 years or more. Considering the total number of practicing attorneys, the largest num- Robert Samuel Rule 7 ber have been in practice 26 years or more. Kerr IV Interim 04/19/12 Of the 279 formal grievances filed against 181 Robert Samuel 2 years + attorneys in 2012, 87 are attorneys in urban Kerr IV 1 day 04/19/12 areas and 90 attorneys live and practice in rural J. David Ogle Rule 7 areas. Four of the grievances were filed against Interim 08/22/12 attorneys licensed in Oklahoma but practicing out of state. Christian Rollow DISCIPLINE IMPOSED BY THE Haave 2 years 11/06/12 OKLAHOMA SUPREME COURT Lewis B. Moon Rule 7 In 2012, 25 disciplinary cases were acted Interim 11/08/12 upon by the Oklahoma Supreme Court. The N. Franklyn 2 years + Court consolidated three of those cases and the Casey 1 day 11/13/12 public sanctions are as follows: Lawrence A.G. Disbarment: Johnson 6 months 11/13/12 Respondent Effective Date Jonna Lynn 2 years + William Louis Clark, Jr. 04/09/12 Reynolds 1 day 11/20/12 Michelle Renee Rowe 10/23/12 Jon Edward Rule 7 Brown Interim 12/03/12 Resignations Pending (Tantamount Disciplinary Proceedings to disbarment) Nathaniel Rule 7 Approved by Court: Soderstrom Interim 12/03/12 Respondent Effective Date Public Censure: Dane Thomas Wilson 02/09/12 Respondent Effective Date Joshua Todd Welch 04/19/12 Miles C. Zimmerman 04/17/12 Rohit Chandra Sharma 06/11/12 Andrew Raymond Townsend 05/08/12 Tammy LaVerne Bass-LeSure 09/10/12 John Brandon Hill 06/26/12 Christopher H. Cox 09/10/12 Michael Joseph Corrales 06/26/12 Lewis B. Moon 09/18/12

344 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Dismissals: Diversion Program for instruction in proper Respondent Effective Date trust accounting procedures. Howard, Joseph T. 09/17/12 Roberts, David Michael 11/26/12 In addition to the public discipline imposed in 2012, the Court also issued the following non-public sanctions: Interim Suspension: Respondent length effective Date

Rule 10 UNAUTHORIZED PRACTICE OF LAW Confidential Interim 06/11/12 Rule 5.1(b), Rules Governing Disciplinary There were 19 attorney discipline cases pend- Proceedings, 5. O.S. 2001 Ch. 1 App. 1-A, ing with the Supreme Court of Oklahoma as of authorizes the Office of the General Counsel to January 1, 2012. During 2012, 14 new formal investigate allegations of the unauthorized complaints, nine Rule 7 Notices and three Res- practice of law (UPL) by non-lawyers. ignations Pending Disciplinary Proceedings were filed and two complaints were remanded REQUESTS FOR INVESTIGATION back to the Professional Responsibility Tribu- In 2012, this office received 41 complaints for nal for a total of 47 cases filed and/or pending investigation of the unauthorized practice of during the year. On December 31, 2012, 22 law. The Office of the General Counsel fielded cases remained pending before the Oklahoma many additional inquiries regarding the unau- Supreme Court. thorized practice of law that are not reflected in REINSTATEMENTS this summary. PRACTICE AREAS There were nine active reinstatement cases filed with the Oklahoma Supreme Court as of Allegations of the unauthorized practice of January 1, 2012. There were eight new petitions law encompass various areas of law. Most com- for reinstatement filed in 2012. In 2012, the plaints concern individuals assisting pro se liti- Supreme Court approved nine reinstatements, gants in divorce actions. In the chart below, the dismissed one and three were withdrawn. On “General Practice” category denotes non-law- December 31, 2012, there were four petitions yer individuals that advertise or allegedly perfor reinstatement filed and pending before the form legal services relating to family law, Oklahoma Supreme Court. criminal law (including appellate relief), civil rights, guardianships, small claims, wills, TRUST ACCOUNT OVERDRAFT trusts, estate matters, business entities, prop- REPORTING erty issues and name change petitions. The The Office of the General Counsel under the remaining categories are reserved for non- supervision of the Commission has imple- lawyer individuals that advertise or allegedly mented the Trust Account Overdraft Reporting perform legal services in a specific area of law. requirements of Rule 1.15(j), Oklahoma Rules of Professional Conduct, 5 O.S. Supp. 2008, ch. 1, app. 3-A. Trust Account Overdraft Reporting Agreements have been submitted by and approved for depository institutions. In 2012, 184 notices of overdraft of a client trust account were received by the Office of the General Counsel. Notification triggers a general inquiry to the attorney requesting an explanation for the deficient account. Based upon the response, an investigation may be commenced. Repeated overdrafts due to negligent accounting practices have resulted in referral to the Discipline

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 345 REFERRAL SOURCES voluntarily surrendered their license to practice law in the State of Oklahoma. Requests for investigations of allegations of the unauthorized practice of law stem from ENFORCEMENT multiple sources. Oklahoma attorneys and In 2012, this office sent 10 cease and desist attorneys from other jurisdictions are the most letters after investigation determined that that frequent source for requests for investigation. unauthorized practice of law was occurring. Of Judicial referrals, requests from State and Fed- the 10 cases, seven resulted in resolution where eral agencies, harmed members of the public, the conduct ceased. the Professional Responsibility Commission and the Office of the General Counsel also CLIENTS’ SECURITY FUND report alleged instances of individuals engaging in the unauthorized practice of law. The Clients’ Security Fund was established in 1965 by Court Rules of the Oklahoma Supreme Court. The Fund is administered by the Clients’ Security Fund Committee which is comprised of 17 members, 14 lawyer members and 3 non-lawyers, who are appointed in stag- gered three-year terms by the OBA President with approval from the Board of Governors. The Fund furnishes a means of reimbursement to clients for financial losses occasioned by dishonest acts of lawyers. It is also intended to protect the reputation of lawyers in general from the consequences of dishonest acts of a very few. The Board of Governors budgets and appropriates $100,000.00 each year to the Cli- ents’ Security Fund for payment of approved claims. In years when the approved amount exceeds the amount available, the amount RESPONDENTS approved for each claimant will be reduced in Most requests for investigation into allegations proportion on a prorata basis until the total of the unauthorized practice of law concern para- amount paid for all claims in that year is legals (or paralegal firms) and non-lawyers. For $100,000.00. In 2012, the amount approved for purposes of this summary, the category “non- each claimant was reduced by 14 percent. The lawyer” refers to an individual who does not Office of the General Counsel provides staff advertise as a paralegal, but performs various services for the Committee. In 2012, the Office legal tasks for their customers. Recently, most of the General Counsel investigated and pre- “non-lawyers” claim to have expertise in the sented to the Committee 30 new claims. The foreclosure process. The “Former Lawyers” Committee approved 9 claims, denied 15 claims category includes lawyers who have been dis- and continued 6 claims into the following year barred, stricken, resigned their law license for further investigation. pending disciplinary proceedings or otherwise

346 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 CIVIL ACTIONS (NON-DISCIPLINE) • Gather v. OKARNG, et al., United States INVOLVING THE OBA District Court for the Western District of The Office of the General Counsel has rep- Oklahoma, Case No. CIV-12-166, filed resented the Oklahoma Bar Association in the February 14, 2012. Dismissed February 16, following civil (non-discipline) matters dur- 2012. Transmitted notice of appeal. ing 2012: • Gather v. OKARNG, et al., United States 1. State of Oklahoma ex rel. Oklahoma Bar Asso- District Court for the Western District of ciation v. Mothershed, Oklahoma Supreme Oklahoma, Case No. CIV-12-208, filed Court, SCBD 4687. February 23, 2012. Dismissed February 27, 2012. • Mothershed v. State of Oklahoma ex rel. Okla- homa Bar Association, Tenth Circuit Court • Gather v. OKARNG, et al., Tenth Circuit of Appeals, Case Number 11-6329 (appeal Court of Appeals, Case No. 12-6048, filed from United States District Court for the February 24, 2012 (appealing dismissal of Western District of Oklahoma Case No. CIV-12-166). Dismissal affirmed May 7, 2012. CIV-10-199-F). On December 12, 2011, • Gather v. OKARNG, et al., United States Mothershed filed a Docketing Statement, Supreme Court. Case No. 12-6118, filed Entry of Appearance, Motion for Sum- May 22, 2012. OBA filed Waiver of Reply mary Reversal and Application for Elec- to initial petition. Certiorari denied tronic Filing. The motions were denied on November 13, 2012. Gather has filed two February 29, 2012. The mandate was additional petitions for rehearing. Rehear- issued on March 22, 2012. ing denied January 14, 2013. • Mothershed v. Justices of the Supreme Court 3. Kerchee et al., v. Smith et al., Western District of Oklahoma, et al., United States District of Oklahoma Case No. CV-11-459-C, filed Court for the District of Arizona, Case No. April 26, 2011. The Kerchees filed suit CIV-12-0549-PHX-FJM, filed March 15, against approximately 40 defendants, 2012. Dismissed for lack of personal juris- including the OBA, Loraine Farabow, John diction, Rooker-Feldman, Fed. R. Civ. P. 8, M. Williams and others [OBA Defendants]. etc. on June 27, 2012. Dismissed against OBA defendants on • Mothershed v. Justices of the Supreme Court November 21, 2011. Final Judgment entered of Oklahoma, et al., Ninth Circuit Court of February 1, 2012. Appeals, Case Number 12-16671, filed July 31, 2012. Order granting summary • Kerchee et al. v. Smith et al., Tenth Circuit affirmance entered October 19, 2012. Peti- Court of Appeals, Case No. 12-6080, filed tion for Rehearing denied on December 18, March 28, 2012. OBA Defendants filed 2012. Motion to Dismiss for lack of appellate jurisdiction and Answer Brief. Pending. • Mothershed v. Justices of the Supreme Court of Oklahoma, et al., United States Supreme 4. State of Oklahoma ex rel. Oklahoma Bar Asso- Court, Case Number 12-8347. Petition for ciation v. Metcalfe, Pontotoc County Case Writ of Certiorari transmitted to the OBA No. CV-2010-163. (Unauthorized Practice of on January 15, 2013. Law). Temporary Injunction in effect. 2. Gather v. OKARNG, et al., United States 5. Antone Lamandingo Knox v. Hendryx, Okla- Supreme Court, Case No. 11-7176: homa Supreme Court Case No. MA-110,182, filed December 9, 2011. Petitioner’s Appli- • Gather v. OKARNG, et al., United States cation for Writ of Mandamus and Applica- Supreme Court, Case No. 11-7176, dock- tion to Assume Original Jurisdiction was eted November 3, 2011. (Appeal from denied on January 17, 2012. United States District Court for the West- ern District of Oklahoma, Case No. CIV- 6. Charles Fields v. Oklahoma Bar Association, 11-260-F, filed March 10, 2011. Dismissed Oklahoma Supreme Court Case No. May 18, 2011. Gather filed Notice of MA-110264, filed January 5, 2012. Petition Appeal, Tenth Circuit Court of Appeals, for Writ of Mandamus filed. The OBA filed Case No. 11-6212, denied August 19, its response on January 23, 2012. Applica- 2011) Petition for Certiorari denied Janu- tion to Assume Original Jurisdiction was ary 9, 2012. denied on February 13, 2012.

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 347 7. Pemberton v. Melissa DeLacerda, Oklahoma Certificates of Good Standing County Case No. CV-2012-158, filed January In 2012, the Office of the General Counsel 1, 2012. Dismissed February 6, 2012. prepared 1940 Certificates of Good Standing/ • Pemberton v. DeLacerda, Oklahoma Su- Discipline History at the request of Oklahoma preme Court Case No. MA-110441, filed Bar Association members. There is no fee to the March 2, 2012. Application to Assume attorney for preparation of same. Original Jurisdiction denied. OBA filed response to Petition in Error. Consolidated with Case Nos. 110,169 and 110,968 and assigned to the Court of Appeals when at issue on August 22, 2012. Pending. 8. Deutsche Bank National Trust v. Steven Angel et al., Logan County Case No. CJ-2012-193. Served on OBA on July 9, 2012. Answer filed disclaiming interest in suit. Dismissed as party July 12, 2012. ATTORNEY SUPPORT SERVICES ETHICS AND EDUCATION In 2012, the Office of the General Counsel During 2012, the General Counsel, Assistant processed 563 new applications, 474 renewal General Counsels, and the Professional Respon- applications and $15,950.00 in renewal late fees sibility Commission members presented more submitted by out-of-state attorneys registering than 40 hours of continuing legal education to participate in a proceeding before an Okla- programs to county bar association meetings, homa Court or Tribunal. Out-of-State attorneys attorney practice groups, OBA programs, law appearing pro bono to represent criminal indi- school classes and various legal organizations. gent defendants, or on behalf of persons who In these sessions, disciplinary and investiga- otherwise would qualify for representation tive procedures, case law, and ethical standards under the guidelines of the Legal Services Cor- within the profession were discussed. This poration due to their incomes, may request a effort directs lawyers to a better understanding waiver of the application fee from the Oklaho- of their ethical requirements and the disciplin- ma Bar Association. In 2012, the Office of the ary process, and informs the public of the General Counsel also processed 3 waiver efforts of the Oklahoma Bar Association to requests of the application fee. Certificates of regulate the conduct of its members. In addi- Compliance are issued after confirmation of tion, the General Counsel was a regular con- the application information, the applicant’s tributor to The Oklahoma Bar Journal. good standing in his/her licensing jurisdiction and payment of applicable fees. All obtained RESPECTFULLY SUBMITTED this 1st day of and verified information is submitted to the February, 2013, on behalf of the Professional Oklahoma Court or Tribunal as an exhibit to a Responsibility Commission and the Office of “Motion to Admit Pro Hac Vice.” the General Counsel of the Oklahoma Bar Association. /s/ Gina Hendryx General Counsel Oklahoma Bar Association

348 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 BAR NEWS

PROFESSIONAL RESPONSIBILITY TRIBUNAL ANNUAL REPORT 2012 SCBD No. 5966

The Professional Responsibility Tribunal whom serve for a one-year term. PRT members (PRT) was established by order of the Supreme receive no compensation for their services, but Court of Oklahoma in 1981, under the Rules they are entitled to be reimbursed for travel Governing Disciplinary Proceedings, 5O.S. and other reasonable expenses incidental to the 2001, Ch. 1, App. 1-A (RGDP). The primary performance of their duties. function of the PRT is to conduct hearings on The lawyer members of the PRT who served complaints filed against lawyers in formal during all or part of 2012 were: Jeremy J. Bea- disciplinary and personal incapacity proceed- ver, McAlester; Dietmar K. Caudle, Lawton; ings, and on petitioners for reinstatement to Lorenzo Thurmond Collins, Ardmore; Patrick the practice of law. A formal disciplinary pro- T. Cornell, Clinton; Joe Crosthwait, Midwest ceeding is initiated by written complaint City; Deirdre Dexter, Sand Springs; Luke Gaith- which a specific is pleading filed with the er, Henryetta; Tom Gruber, Oklahoma City; Chief Justice of the Supreme Court. Petition- Cody B. Hodgden, Woodward; William G. ers for reinstatement are filed with the Clerk LaSorsa, Tulsa; Susan B. Loving, Edmond; Kelli of the Supreme Court. M. Masters, Oklahoma City; Stephen R. McNa- COMPOSITION AND APPOINTMENT mara, Tulsa; Mary Quinn-Cooper, Tulsa; F. Douglas Shirley, Watonga; Louis Don Smither- The PRT is a 21-member panel of Masters, 14 man, Oklahoma City; Neal E. Stauffer, Tulsa; of whom are lawyers and 7 whom are non- and James M. Sturdivant, Tulsa. lawyers. The lawyers on the PRT are active members in good standing of the OBA. Lawyer The non-lawyer members who served dur- members are appointed by the OBA President, ing all or part of 2012 were: Steven W. Beebe, with the approval of the Board of Governors. Duncan; Norman Cooper, Norman; Christian Non-lawyer members are appointed by the C. Crawford, Stillwater; James Richard Daniel, Governor of the State of Oklahoma. Each mem- Oklahoma City; Kirk V. Pittman, Seiling; Bill ber is appointed to serve a three-year term, and Pyeatt, Norman; Susan Savage, Tulsa; John limited to two terms. Terms end on June 30th of Thompson, Nichols Hills; and Mary Lee the last year of a member’s service. Townsend, Tulsa. As of December 31, one non- lawyer member vacancy existed. Pursuant to Rule 4.2 of the Rules Governing Disciplinary Proceedings (RGDP), members The annual meeting was held on June 30, are required to meet annually to address orga- 2012, at the Oklahoma Bar Association offices. nizational and other matters touching upon the Agenda items included a visit by the General PRT’s purpose and objective. They also elect a Counsel,1 recognition of new members and Chief Master and Vice-Chief Master, both of members whose terms had ended, and discus-

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 349 sions concerning the work of the PRT. Patrick After a proceeding is placed in the hands of a Cornell was elected Chief Master and Lorenzo Trial Panel, it exercises general supervisory Collins was elected Vice-Chief Master, each to control over all pre-hearing and hearing issues. serve a one-year term. Members of a Trial Panel function in the same manner as a court by maintaining their inde- GOVERNANCE pendence and impartiality in all proceedings. All proceedings that come before the PRT are Except in purely ministerial, scheduling, or governed by the RGDP. However, proceedings procedural matters, Trial Panel members do and the reception of evidence are, by reference, not engage in ex parte communications with the governed generally by the rules in civil pro- parties. Depending on the complexity of the ceedings, except as otherwise provided by the proceeding, the Presiding Master may hold RGDP. status conferences and issue scheduling orders as a means of narrowing the issues and stream- The PRT is authorized to adopt appropriate lining the case for trial. Parties may conduct procedural rules which govern the conduct of discovery in the same manner as in civil cases. the proceedings before it. Such rules include, Hearings are open to the public and all but are not limited to, provisions for requests proceedings before a Trial Panel are steno- for disqualification of members of the PRT graphically recorded and transcribed. Oaths assigned to hear a particular proceeding. or affirmations may be administered, and ACTION TAKEN AFTER NOTICE subpoenas may be issued, by the Presiding RECEIVED Master, or by any officer authorized by law to administer an oath or issue subpoenas. Hear- After notice of the filing of a disciplinary ings, which resemble bench trials, are directed complaint or reinstatement petition is received, by the Presiding Master. the Chief Master (or Vice-Chief Masters if the Chief Master is unavailable) selects three (3) Respondents in disciplinary hearings or inca- PRT members (two lawyers and one non-law- pacity proceedings and petitioners in reinstate- yer) to serve as a Trial Panel of Masters. The ment proceedings are entitled to be represented by counsel. Chief Master designates one of the two lawyer- members to serve as Presiding Master. Two of TRIAL PANEL REPORTS the three Masters constitute a quorum for pur- After the conclusion of a hearing, the Trial poses of conducting hearings, ruling on and Panel prepares a written report to the Supreme receiving evidence, and rendering findings of Court. The report includes findings of facts on fact and conclusions of law. all pertinent issues, conclusions of law, and a In disciplinary proceedings, after the respon- recommendation as to the appropriate mea- dent’s time to answer expires, the complaint sure of discipline to be imposed or, in the case and the answer, if any, are then lodged with the of a reinstatement petitioner, whether it should Clerk of the Supreme Court. The complaint be granted. In all proceedings, any recommen- and all further filings and proceedings with dation is based on a finding that the complain- respect to the case then become a matter of ant or petitioner, as the case may be, has or has not satisfied the “clear and convincing” stan- public record. dard of proof. The Trial Panel report further The Chief Master notifies the respondent or includes a recommendation as to whether costs petitioner, as the case may be, and General of investigation, the record, and proceedings Counsel of the appointment and membership should be imposed on the respondent or peti- of a Trial Panel and the time and place for tioner. Also filed in the case are all pleadings, hearing. In disciplinary proceedings, a hear- transcript of proceeding, and exhibits offered ing is to be held not less than 30 days nor at the hearing. more than 60 days from date of appointment Trial Panel reports and recommendations are of the Trial Panel. Hearings on reinstatement advisory only. The Supreme Court has exclu- petitioners are to be held not less than 60 days sive jurisdiction over all disciplinary and rein- nor more than 90 days after the petition has statement matters. It has the constitutional and been filed. Extensions of these periods, how- non-delegable power to regulate both the prac- ever, may be granted by the Chief Master for tice of law and legal practitioners. Accordingly, good cause shown. the Supreme Court is bound by neither the

350 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 findings nor the recommendation of action, as In regard to new matters, the PRT received its review of each proceeding is de novo. notice of the filing of 26 disciplinary complaints and 9 reinstatement petitions. Trial ANNUAL REPORTS Panels conducted a total of 38 hearings; 29 in Rule 14.1, RGDP, requires the PRT to report disciplinary proceedings and 9 in reinstate- annually on its activities for the preceding year. ment proceedings. As a function of its organization, the PRT oper- On December 31, 2012, a total of 11 matters, ates from July 1 through June 30. However, 10 disciplinary and 1 reinstatement proceed- annual reports are based on the calendar year. ings, were pending before the PRT. Therefore, this Annual Report covers the activities of the PRT for the preceding year, 2012. CONCLUSION ACTIVITY IN 2012 Members of the PRT demonstrated continued service to the Bar and the public of this State, as At the beginning of the calendar year, 2 dis- shown by the substantial time dedicated to each ciplinary and 2 reinstatement proceedings were assigned proceeding, The members’ commit- pending before the PRT as carry-over matters ment to the purpose and responsibilities of the from a previous year. Generally, a matter is PRT is deserving of the appreciation of the Bar considered “pending” from the time the PRT and all its members, and certainly is appreciated receives notice of its filing until the Trial Panel by this writer. report is filed. Certain events reduce or extend the pending status of a proceeding, such as the Dated this 9th day of January, 2013. resignation of a respondent or the remand of a matter for additional hearing. In matters in- PROFESSIONAL REPONSIBILITY volving alleged personal incapacity, orders by TRIBUNAL the Supreme Court of interim suspension, or /s/ Patrick T. Cornell suspension until reinstated, operate to either Patrick T. Cornell, Chief Master postpone a hearing on discipline or remove the 1. The General Counsel of the Oklahoma Bar Association custom- matter from the PRT docket. arily makes an appearance at the annual meeting for the purpose of thanking members for their service and to answer any questions of PRT members. Given the independent nature of the PRT, all other business is conducted in the absence of the General Counsel.

Proceeding Pending New Matters Hearings Other Pending Type Jan. 1, 2012 In 2012 Held 2012 Dispositions Dec. 31, 2012 Disciplinary 9 26 29 22 10 Reinstatement 2 9 9 12 1

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 351 352 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 LAW DAY

2013 Celebrations Gearing Up Thursday, May 2, is set for ‘Ask A Lawyer’ Day

Law Day 2013 is underway! The annual Ask A Lawyer TV show is in production, the art contests have been judged, and county bar associations should begin planning events now. Why is Law Day such a big event? This national celebration began right here in Oklahoma in the 1950s. This day is set aside every year to celebrate the freedoms, rights and responsibilities we enjoy because of our unique legal system. In addition to the opportunity for educational outreach, Law Day gives Oklahoma lawyers the chance to participate in a large-scale community service event designed to enhance the image of the legal profession while providing assistance to those who need help with legal questions. Participation in Law Day activities is a win/win! So, mark your calendars now! Thursday, May 2 is the day Law Day will be observed in Oklahoma this year. The TV show will air on OETA stations across the state from 7–8 p.m. Counties hosting Ask A Lawyer call-in events are asked to be available to take calls during this hour for maximum publicity of this community service event. Thanks to those counties that have already submitted the name of their Law Day chairperson: Bryan: Jimmy Speed Mayes: Emily Crain Carter: Brad Wilson McCurtain: Kevin Sain Cherokee: Marena Doolittle McIntosh: Brendon Bridges Cimarron: Judge Ronald Kincannon Muskogee: Robert Duncan III Cleveland: Sandee Coogan, Alissa Hutter, Oklahoma: Lauren Barghols Hanna, chair; Bethany Stanley, Peggy Stockwell and Curtis Thomas, vice chair Rebekah Taylor, co-chairs Ottawa: John Weedn and Jennifer Ellis, Comanche: Rob Rochelle co-chairs Custer: Judge Jill Weedon and Payne: Brandon Meyer Judge Donna Dirickson, co-chairs Pontotoc: Christine Pappas Dewey: Judge Rick Bozarth Roger Mills: Pat Versteeg Garfield: Kaleb Hennigh Seminole: Judge Timothy Olsen and Grant: Judge Jack Hammontree Jack Cadenhead, co-chairs Greer: Tabitha Mills Texas: Vonda Wilkins Hughes: Judge Timothy Olsen Tulsa: Kimberly Moore-Waite Kay: William Oldfield Wagoner: Richard Loy Gray Jr. LeFlore: Jolyn Belk Washita: Skye Shepard-Wood Is your county missing from this list? Please submit the name of your Law Day chairperson as soon as possible to Lori Rasmussen, OBA Law Day coordinator, [email protected], 405-416-7017.

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 353 FROM THE EXECUTIVE DIRECTOR

2013 Legislative Session Begins By John Morris Williams

It is that time of year, again. The 2013 legislative session began on Monday, Feb. 4. This year there are nearly 3,000 measures filed. On Saturday, Jan. 26, an impressive number of OBA members attended an all-day legislative reading day. Thanks to Legislative Monitor- ing Committee Chair Duchess Bartmess for leading us through the day. It is a long process to get through all the bills; however, it is much worth the effort. Although I read through all the bill summaries and many of the bills, there were still several bills of interest that we identified ence committee, and some will O.S. 2011, Section 2502, which beyond my initial list. If you be vetoed by the governor. relates to attorney-client privi- have not attended the reading With this many variations it is lege; modifying term; and day, I highly recommend it. important to keep an eye out providing an effective date. The list of “bills of interest” in all directions. SB0392 An act relating to is on our website at www. At this time the OBA has administrative tax hearings; okbar.org/s/billsummaries five bills on its legislative creating the State Office of and updated weekly. As of agenda. These are bills passed Administrative Tax Hearings. now, we have more than 400 by the House of Delegates. SB0414 An act relating to bills on the list. As usual, the The OBA does identify numer- list will get shorter as the ses- discovery; amending 12 O.S. ous bills that might be of inter- 2011, Section 3237, which sion progresses. My guess est to our members. A bill right now would be that we relates to failure to make or identified as being “of inter- cooperate in discovery; clarify- will end the session with 30-40 est” does not mean that the of the identified bills actually ing persons to be designated OBA has a position on the bill. by certain entities. being passed. It is called the It simply means that bar mem- legislative process for a reason. bers might want to watch the SB0415 An act relating to Many bills will not be heard in legislation to see how it is depositions; amending 12 O.S. committee, multiple bills on progressing in the session. 2011, Section 3232, which the same subject will be con- relates to use of depositions solidated into a singular bill, The OBA bills on the legisla- in court proceedings. some bills will be rejected by tive agenda are: SB0416 An act relating to the opposite house from which HB1086 An act relating to privileged disclosure; amend- it was filed and die in confer- civil procedure; amending 12 ing 12 O.S. 2011, Section 2502,

354 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 which relates to attorney-client their own accord. Often we members. As of now, we also privilege; stating effect of cer- have members with opposing have several legislators who tain agreement on specified views on a bill, and it can be have notified us that they will parties. helpful to legislators to hear be joining us for lunch. As The OBA bylaws restrict the those diverse views to be bet- always, there are important legislative agenda to include ter educated on the issue. issues affecting the practice of law and the administration of bills that have a narrow focus OBA DAY AT on the practice of law and the THE CAPITOL justice. I encourage you as a public citizen to attend the courts. During the time that Lastly, on March 12, 2013, the House of Delegates is not Day at the Capitol and let the OBA will have its annual your opinions be heard. in session, the OBA Board of Day at the Capitol. This year Governors can take a position we have an impressive list of on pending legislation that speakers lined up, and lunch meets within the confines of will be provided. You’ll find the bylaws. Only bills that are specific details for the day in on the legislative agenda or this Oklahoma Bar Journal and acted upon by the Board of at www.okbar.org. I hope you Governors can be represented can attend. We have scheduled as the OBA having a position. the program to start late morn- To contact Executive Director Of course, this does not pro- ing and end mid afternoon to Williams, email him at johnw@ hibit OBA members from accommodate out-of-town okbar.org. speaking with legislators on

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 355 LAW PRACTICE TIPS

The Stress-Free Law Practice By Jim Calloway

Many of you saw the title of This is good for dispassionate this column and began to read examination of a challenging it, thinking either, “That is Death by suicide problem. It is probably not the absolutely impossible,” or “Yes, best method for dealing with I want that.” This column will among lawyers is personal stress. address both of those opposing The results of such chronic expectations. six times the suicide stress are as tragic as they are I am fairly certain that a com- rate of the general predictable. pletely stress-free law practice population… Death by suicide among law- is not possible, any more than yers is six times the suicide rate stress-free life is possible. Cer- of the general population, mak- tainly there are practice areas ing it the third leading cause of for lawyers that lead to more simple ones either. We take on death among lawyers after can- stress than others. Surely a their worst problems that often cer and cardiac conditions.1 A murder trial or a contested deal with their most important quality-of-life survey conduct- family law custody case would and emotional issues, be it a ed by the North Carolina Bar be more stressful than a prac- potential loss of freedom, Association in 1991 reported tice limited to doing only resi- health, financial security or that almost 26 percent of the dential title opinions (of course, family relationships. A typical bar’s members exhibited symp- that may just be something we client is often unhappy about assume because we’ve never had to tell a couple their new dream home has so many encroachments and title defects that making the title market- able could take months if it’s even possible). Not all stress is bad for you. Good trial lawyers get excited and amped up for a big trial just like athletes do for a big game. The “fight or flight” adrenaline rush was critical for our ancestors to survive and still comes in handy today, even though we do not live in caves or the jungle. But chronic stress is a chronic problem for having the problem and unhap- toms of clinical depression.2 A many lawyers. It seems to be py about having to pay a law- Johns Hopkins University inherent in the practice of law. yer to take care of the problem. study found that among over We set up shops that invite 100 occupations studied, law- people to bring in their prob- Lawyers are trained to focus yers were three times more lems — and not the easy or on logic and set aside emotion. likely to suffer from clinical

356 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 depression than any other profession.3 Alcohol and drug dependency rates among law- Attend Monthly Discussion Groups yers are around double the rate of the general population.4 The OBA Lawyers Helping Lawyers Assistance Program Commit- tee hosts a series of monthly meetings led by an LHL Committee Just reading the data is a bit member. The small group discussions, held in both Oklahoma City depressing. But it also rings and Tulsa on the same day, are intended to give group leaders and true with our anecdotal experi- participants the opportunity to ask questions, provide support and ences. Most lawyers who have share information with fellow bar members to improve our lives – been in practice for a length of professionally and personally. time have known a lawyer lost to suicide. Most lawyers some- 2013 Meeting Dates and Topics times have bad days and professional situations that are Mar. 7 – The Emotional Challenges of the Solo Practitioner miserable and sometimes seem Apr. 4 – Depression, Anxiety and the Practice of Law unbearable. Almost every law- May 2 – Care-giving: Challenges and Resources yer has had a conversation or June 6 – The Challenges of Work, Relationships and Parenting phone call that included more Aug. 1 – The Challenges of Coping with the Loss of a Loved One anger than seems reasonable Sept. 5 – Coping with the Challenges of an Addicted Loved One for the situation. or Colleague Oct. 3 – Practicing While Sick or Injured Recognizing the potential Nov. 7 – Stress Management and the Practice of Law problem is, as the cliché goes, Dec. 5 – Tips that Work - Maintaining Healthy Relationships half the battle. To learn about coping with stress, I talked Time: 7 – 8:30 p.m. with licensed professional counselor Rebecca R. Williams, Locations: who coordinates Lawyers Office of Tom Cummings The Street Law Firm Helping Lawyers (LHL) 701 N.W. 13th Street 400 S. Boston Ave., Suite 1100W services for the OBA. Oklahoma City Tulsa Although I was focused on Snacks will be provided. Meetings are free and open to all the long-term effect of stress on OBA members. RSVPs are encouraged to ensure there is food for a veteran lawyer, she reminded all. Please e-mail Kim Reber, [email protected], to reserve me that new attorneys are also your spot. particularly vulnerable as they step onto the playing field, often without mentoring or support, and with the unrealis- Here are some of her ideas • Letting your work schedule tic belief they should have all related to stress management. derail your plans for physical the answers. activity Be aware of the symptoms Can stress become a lifestyle listed below: • Difficulty organizing and or work culture? It absolutely concentrating can, according to Ms. Williams. • Isolation from colleagues, In many pockets of the legal friends or family • Resistance to asking for help or support profession, excessive work • Feelings of being over- hours and intense caseloads are whelmed • Avoiding certain clients or the norm. The risk of appear- files ing weak or incapable lessens • Feelings of inadequacy • Increased alcohol substance the likelihood of someone • Not adhering to set work use reaching out for help or sup- hours port and increases the chances • Increase in time spent on • Losing sight of a realistic of a particular stress phase non-productive, non-billable caseload turning into an anxiety disor- tasks such as Internet surfing der, depression or substance • Difficulty turning down work or an unhealthy relationship abuse problem.

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 357 To cope with stress, consider • Talk about your feelings and firmly. It is better to do a these recommendations from regularly with someone you few volunteer and community Ms. Williams: trust. activities well than to give half • Keep something to look • Schedule a quitting time. attention to many. forward to every week that Sometimes long work days are Don’t forget that OBA mem- involves being around other required, but we all have to bers can get free professional people. acknowledge we are not as counseling. The Lawyers • Attend the monthly LHL effective and sharp in our 10th Helping Lawyers Hotline is discussion group, if only to working hour of the day as in available 24 hours a day at have a sandwich and listen. See our first. 800-364-7886. the schedule of meetings • Personal consultation is as Being a lawyer is an honor. accompanying this article. important as professional con- This is a great profession. Not • Hire someone temporarily sultation, so identify mentors everyone gets to help people to help organize your space and others for your personal with their most important and files. support. problems. But to take care of • Incorporate 15 minute • Remember there are some your clients, you have to take activity breaks during the work potential clients too challeng- the time to take care of yourself day to walk around the parking for you to represent. Some- first. Lawyers are often very ing lot or run up a flight of times there is just a personality self-sacrificing. Maybe this is stairs. conflict. Everyone is entitled to the time for you to dial back on the self-sacrifice and focus on • Promote and encourage a lawyer, but not everyone is entitled to you. having a long and healthy law laughter. practice. • Meditate daily or simply Don’t take on too much at Mr. Calloway is director of the slow down your breathing and one time. Every lawyer has had OBA Management Assistance focus on one thing or concept to deal with the temptation of Program. Need a quick answer to only, for several minutes, sev- taking on a new client when a tech problem or help resolving eral times a day. they are already overloaded. Deep inside we can sometimes a management dilemma? • When you feel stress and hear a voice of insecurity that if Contact him at 405-416-7008, anxiety, take a few deep we turn away this new client, 800-522-8065 or [email protected]. breaths and think about all of we may soon not have enough It’s a free member benefit! the good things about your work to do. But you do a dis- practice and life. This challenge 1. Lawyer Suicide and Resources for Man- service to yourself, your family aging Stress, the North Carolina Lawyer Assis- will pass, as have other previ- and your potential new client if tance Program, www.okbar.org/s/lawyer- ous ones. stress. you take on more than you can 2. Ted David, “Can Lawyers Learn to Be • Schedule fun and recre- comfortably handle. Happy?” 57 No. 4 Prac. Law 29 (2011). ation on your calendar weekly. 3. Id. The above observation is one 4. Alcoholism and Drug Dependency in • Participate in frequent new part of a life skill that many the Legal Profession www.illinoislap.org/ alcohol-and-drug-abuse. experiences with your partner, lawyers must exercise more friends or colleagues. often — saying “no” gracefully New Form Book is Here! eed forms? The OBA/CLE Department is now selling their 2013 Form Book to OBA members who are interested. N Topics covered by the forms include, but are not limited to, the following areas of the law: u]\R<?P\[u4PMZ]X\]Z?u OXNReO?P\u [\4\?%N4PPGPEu'?4N%ZRX?Z\e u(RO4PeORZ?y Family law forms are available from the Family Law Section. Purchase at http://bit.ly/VxlLVo or visit www.okbar.org/cle for a link.

358 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 ETHICS & PROFESSIONAL RESPONSIBILITY

Oklahoma’s Lawyer Discipline Process By Gina Hendryx

In this issue of the Oklahoma membership, less than 6 per- Bar Journal, you will find the cent of the licensed attorneys 2012 annual reports of the Considering the in the state of Oklahoma Professional Responsibility total membership, less received a complaint last year. Tribunal (PRT) and the Pro- Of the grievances reviewed in fessional Responsibility Com- than 6 percent of the 2012, 273 were referred for mission (PRC). The PRT is the formal investigation. panel of masters who conduct licensed attorneys in TWO PRACTICE AREAS hearings on formal com- the state of Oklahoma RISK MORE GRIEVANCES plaints filed against lawyers and on applications for rein- received a complaint It is always instructive to statement to the practice of review which practice areas of law. The panel consists of 21 last year. law receive the most grievanc- members, 14 of whom are es and what types of com- active OBA members in good plaints are routinely lodged against attorneys. It was not standing and seven members of seven members, five of surprising to learn that 41 per- who are nonlawyers. whom are active members in cent of the complaints in 2012 good standing of the OBA and When a formal complaint or were in matters relating to two nonlawyers. Under the application for reinstatement criminal law and family law supervision of the PRC, the is filed, the presiding master representations. And, this was Office of the General Counsel of the PRT selects three mem- not an aberration. Year after investigates all matters involv- bers from the panel to preside year, these two areas of prac- ing alleged misconduct or over the discipline hearing. At tice consistently receive the incapacity of any lawyer the conclusion of the hearing, most complaints. While still called to the attention of the the trial panel files a written disconcerting especially if general counsel. The PRC report with the Oklahoma these are your two primary determines the disposition Supreme Court that includes areas of practice, it is under- of all formal grievances. findings of fact on all perti- standable given the nature nent issues and conclusions of The Office of the General of the legal needs facing a law and a recommendation as Counsel received 1,149 com- criminal defendant or family to discipline. In 2012, the PRT plaints involving 891 attor- law litigant. conducted a total of 38 hear- neys in 2012. This compares There are arguably no other ings that included 29 disci- to 1,214 complaints involving areas of law wherein the par- pline matters and nine rein- 999 attorneys in 2011. Com- ties find themselves with more statement proceedings. plaints must be in writing and at risk albeit either loss of lib- signed by the complainant. The PRC considers and erty or family. What No anonymous complaints are investigates any alleged was up from past years was processed. At the end of 2012, ground for discipline or the number of complaints the OBA membership was alleged incapacity of any law- received based upon conduct 17,232. Considering the total yer. The commission consists occurring in a “litigation”

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 359 matter. In 2012, 20 percent of grievances received were cate- The majority of referrals came the grievances complained of gorized as “neglect” complaints from lawyers and judges con- some rule violation during followed by 11 percent based cerned about the increase in the litigation process. This upon the personal behavior of nonlawyers engaging in the is an increase of 3 percent the attorney and 7 percent practice of law. over 2011. alleging some form of misrep- The reports set forth in resentation by the lawyer. MOST COMMON detail the day to day work- COMPLAINT In addition to attorney loads of the PRT, PRC and The primary complaint grievances and reinstatement Office of the General Counsel. lodged against Oklahoma proceedings, the Office of the Whether investigating disci- attorneys continues to be cli- General Counsel increased its pline matters, prosecuting the ent/file neglect. Nearly one investigations in 2012 of alle- unauthorized practice of law out of every two grievances gations of the unauthorized or representing the OBA in filed with the Office of the practice of law. More than 40 nondiscipline matters, these General Counsel alleges dis- requests to review these prac- entities work together to satisfaction due to the attor- tices were acted upon in 2012. promote the practice of law ney’s failure to respond to This represents a 100 percent while protecting the public. increase in the number of UPL client inquiries or the delay Ms. Hendryx is OBA general referrals to the Office of the in moving the matter to con- counsel. clusion. In 2012, 44 percent of General Counsel over 2011.

OKLAHOMA CHILD SUPPORT SERVICES, a division of the Oklahoma Department of Human Services Announcement 13- C019BU ATTORNEY IV, Oklahoma OCSS III OKLAHOMA CHILD SUPPORT SERVICES is seeking a full-time attorney for our Midwest City District Office located at 9901 S.E. 29th Street Midwest City Oklahoma 73130. The position involves negotiation with other attorneys and customers as well as preparation and trial of cases in child support related hearings in district and administrative courts. In addition, the successful candidate will help establish partnership networks and participate in community outreach activities within the service area in an effort to educate others regarding our services and their beneficial impact on families. In depth knowledge of family law related to paternity establishment, child support, and medical support matters is preferred. Preference may also be given to candidates who live in or are willing to relocate to the service area. Active membership in the Oklahoma Bar Association is required. This position has alternate hiring levels. The beginning salary is at least $40,255.08 annually with an outstanding benefits package including health & dental insurance, paid leave & retirement. Inter- ested individuals must send a cover letter noting announcement number # 13 – C019BU, an OKDHS Application (Form 11PE012E), a resume, three reference letters, and a copy of current OBA card to: Department of Human Services, Human Resource Management Divi- sion, Box 25352, Oklahoma City, OK 73125 or email the same to [email protected]. OKDHS Application (Form 11PE012E) may found at www.okdhs.org/library/forms/hrmd. Applications must be received no earlier than 8:00 am on February 15, 2013 and no later than 5:00 pm on March 1, 2013. For additional information about this job opportunity, please email [email protected]. THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY EMPLOYER

360 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 BOARD OF GOVERNORS ACTIONS Meeting Summary

The Oklahoma Bar Association Delegates, moderated the nology governance meeting, Board of Governors met at Mortgage Modification CLE staff holiday lunch, staff direc- the Oklahoma Bar Center in seminar in Oklahoma City, tors meeting, Law School for Oklahoma City on Friday, worked on OBA committee Legislators, Bar Association Dec. 14, 2012. appointments, presented the Technology Committee meet- PRESENTATION OBA budget to the Supreme ing, Tulsa County holiday Court and participated in con- party and professionalism Vice President Stockwell versations and emails regard- symposium. He had a meeting presented a gift from the ing bar technology. with CoreVault representatives regarding computer backup board members to President REPORT OF THE Christensen. PAST PRESIDENT and services provided and with the Supreme Court on a REPORT OF THE new online filing system. With PRESIDENT Past President Reheard reported she attended the President-Elect Stuart, he pre- President Christensen Judicial Conference reception sented the OBA budget to the reported she attended the and dinner with Supreme Supreme Court. Judicial Conference reception Court and Court of Criminal BOARD MEMBER REPORTS and dinner with Supreme Appeals members, and Yellow Court and Court of Criminal Ribbon pre-deployment event Governor DeMoss reported Appeals members, Annual for the Oklahoma National she attended OBA Annual Meeting including House of Guard 1220 Engineering Unit Meeting events including the Delegates and General Assem- with Muskogee County Bar House of Delegates and Litiga- bly, Law School for Legisla- Association members. At the tion Section meeting, Law tors, technology committee Annual Meeting she hosted Schools Committee meeting, meeting, OCU pro bono the past presidents dinner, November board meeting and awards luncheon and a moderated the panel on judi- Tulsa County Bar Association 60-year membership pin pre- cial selection, moderated the Christmas party. She moderat- sentation in Nowata. She par- joint meeting of the Military ed the CLE plenary session ticipated in conversations and Assistance Committee and and presented the OBA award emails regarding OBA technol- Military and Veterans Law to the outstanding senior stu- ogy, moderated the Profession- Section and attended the Gen- dent at the OU alumni lun- alism Symposium and moder- eral Assembly and House of cheon. Governor Devoll ated the CLE seminar on fore- Delegates. She noted this was reported he attended the OBA closures sponsored by the her last board meeting after Annual Meeting and related Oklahoma Office of the Attor- seven consecutive years of events, judicial reception for ney General in Tulsa. service. Justice Taylor, dinner with the appellate court judges and jus- REPORT OF THE REPORT OF THE PRESIDENT-ELECT EXECUTIVE DIRECTOR tices, November board meeting and November Garfield President-Elect Stuart report- Executive Director Williams County Bar Association meet- ed he attended Annual Meet- reported he attended Annual ing. He said he has enjoyed his ing, Law School for Legislators, Meeting events including the three years on the board. Gov- Communications Committee House of Delegates and House ernor Hays reported she meeting, Clients’ Security Fund of Delegates committees, attended the judicial reception, meeting, technology committee numerous meetings and con- dinner with Supreme Court meeting and Oklahoma County versations with software ven- members, Tulsa County Bar Bar Association holiday party. dors regarding association Association Christmas party He presided over the House of management software, tech- and TCBA Law Week meeting.

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 361 At the OBA Annual Meeting Board of Governors meeting. REPORT OF THE she participated in meeting At the OBA Annual Meeting GENERAL COUNSEL events including the November she attended the YLD friends board meeting, OBA Family and fellows reception, presi- General Counsel Hendryx Law Section Annual Meeting dent’s tailgate party, OBA reported the Professional and House of Delegates. She annual luncheon, president’s Responsibility Commission hosted the New Mexico Bar leadership breakfast, At the will hold its final meeting of Association president-elect dur- Hop and YLD rockin’ recogni- the year this afternoon. Com- ing Annual Meeting activities. tion event, General Assembly, mission members at their per- She also communicated with House of Delegates, reception sonal expense hosted general OBA FLS leadership regarding in honor of OBA Joe Stamper counsel staff members and the end of year and plans for Distinguished Service Award their spouses/guests for din- 2013. Governor Pappas report- winner Melissa DeLacerda ner at a Bricktown restaurant ed she attended the judicial and various meetings. She also last night. A written status reception and dinner with served on the OBA Annual report of the Professional Supreme Court members, Meeting Credentials Responsibility Commission Annual Meeting events and Committee. and OBA disciplinary matters November board meeting. REPORT OF THE YOUNG for November 2012 was sub- Governor Parrott reported she LAWYERS DIVISION mitted for the board’s review. attended the judicial reception TECHNOLOGY REPORT and dinner with Supreme Governor Kirkpatrick report- Court members, Annual Meet- ed she attended the judicial Executive Director Williams ing events including the Gen- reception and dinner with reported initially there were eral Assembly and House of Supreme Court members, concerns about Avectra and Delegates, and November November Board of Governors contract issues; however, the board meeting. Governor meeting and OBA ethics musi- company made concessions, cal meetings/rehearsal. She Poarch said he has enjoyed and the Bar Association Tech- conducted the November YLD the camaraderie and hard nology Committee reaffirmed work during his three years meeting, participated in OBA Annual Meeting events and its approval at a recent meet- as a board member. Governor ing. He also said the commit- Rivas reported he attended participated in has beens party planning discussions. She said tee approved the purchase of a OBA Annual Meeting events, case management software for November board meeting and that she has enjoyed her year on the board and has benefited the Office of the General Grady County Bar Association Counsel, and the next step meeting. Governor Shields greatly from the experience. is to negotiate a contract. reported she attended the SUPREME COURT LIAISON judicial reception and dinner REPORT NEW JUVENILE LAW with Supreme Court members, SECTION PROPOSED OBA Annual Meeting events, Justice Kauger thanked Pres- November board meeting and ident Christensen for her sup- Executive Director Williams Oklahoma County Bar Associ- port of the judiciary during reported spokesperson Tsinena ation meeting and Christmas the recent elections and said Thompson was ill and could party. She said she has enjoyed 2012 has been a great year for not make the meeting. He her three years of service on the OBA under President reviewed the purpose of the the board. Governor Smith Christensen’s leadership. proposed section and con- reported he attended dinner COMMITTEE LIAISON firmed a petition with the with Supreme Court members, REPORTS required number of signatures Annual Meeting events and had been submitted. A ques- the November board meeting. Governor Hays reported the tion was asked about potential Governor Thomas reported Communications Committee overlap with the Family Law she attended the judicial hosted a successful OBA CLE Section, and it was determined reception and dinner with webinar and the Law Day there was not a conflict. The Supreme Court, Oklahoma Committee is working hard on board voted to approve the the upcoming Ask A Lawyer Fellows for American Bar creation of the Juvenile Law TV show. Foundation annual meeting Section. It was suggested that and breakfast and November new section leaders be

362 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 coached on the OBA budget OKLAHOMA BAR JOURNAL minor housekeeping issues. procedures. 2013-2014 CONTRACT The board approved the amendments. President Chris- PROPOSED LABOR Communications Director tensen pointed out the policy AND EMPLOYMENT Manning reviewed the proce- encourages the utilization of LAW SECTION BYLAW dure she used to solicit bids Oklahoma banks if rates are AMENDMENTS for the design, printing and comparable. mailing of the Oklahoma Bar Section Chair-Elect Adam Journal. Although she received COMMISSION ON Childers reviewed the pro- several inquiries about the job, CHILDREN & YOUTH posed changes to the section she reported only one bid was bylaws. President Christensen received and that was from the The board voted to submit noted that language in Article current vendor, Printing Inc. of the additional name of Todd 3.2 would need to be changed Oklahoma City. She reviewed Pauley, Oklahoma City, to the regarding the preparation of changes in pricing from the governor for consideration as the annual proposed section current contract. The board an appointment to the com- budget, which is due to the approved the two-year con- mission. Additional names OBA by Aug. 1. Mr. Childers tract with Printing Inc. approved previously by the board and submitted are Judge said the section would be open CLIENTS’ SECURITY FUND to the needed change. Presi- Lisa Hammond, Oklahoma REPORT City; Tsinena Bruno-Thomp- dent Christensen compliment- son, Oklahoma City; and ed the section on its activity Clients’ Security Fund Chair Micheal Salem reported the Susan D. Williams, Watonga – this year. The board approved term expires 12/31/14. the section bylaw amendments committee met four times dur- with the addition of the ing the year and approved COMMUNICATIONS amendment requested by nine claims for $198,330, COMMITTEE FUNDING the board. which would have to be pro- rated by 86 percent to reduce Communications Director LEGAL ETHICS ADVISORY the claims to $100,981.17, Manning reported the Com- OPINION which is the amount available munications Committee is for distribution. He asked the working on recommendations Legal Ethics Advisory Panel board to approve the commit- for spending funds carried member David Butler reported tee’s recommendation. He over from previous years, but the panel was not able to get a also thanked General Counsel producing a CLE seminar for two-thirds vote on the ques- Gina Hendryx and staff liaison the OBA prevented them from tion under consideration, so Manni Arzola for their assis- completing the task. They the issue was being presented tance. The board approved the request the excess funds be to the Board of Governors for committee’s recommendation carried over for another year. its review. Mr. Butler present- and voted to disburse the The board approved the carry- ed the majority opinion and funds. President Christensen over of the committee funds. gave board members a hand- said she heard rave reviews ATTORNEY GENERAL out that shows a punctuation about the efficient work of the FUNDING FOR OFFICE OF error in the statute. Panel group from a layperson who THE GENERAL COUNSEL Coordinator Jim Drummond serves on the committee. The AND HEROES PROGRAM presented the minority opin- board authorized the release of ion. Panel member Micheal a news release that would be Executive Director Williams Salem made a comment approved by the president and reported the funding from the regarding Rule 7.3. The board the committee chairperson. Office of the Attorney General approved the majority opinion came late in the year and will INVESTMENT POLICY be used in 2013. The board with the change of language AMENDMENTS that needed to be amended approved the carryover of funds from the Office of the and the addition of a case cita- Administration Director Attorney General. tion. President Christensen Combs said the Investment thanked the panel members Committee met and recom- APPOINTMENTS mends updates to the current for their work. policy. He reviewed the pro- The board approved Presi- posed changes, which are dent-Elect Stuart’s recommen-

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 363 dations for the following Weldon Stout who has said the goal is active partici- appointments: resigned, term expires pation of YLD members on all 10/01/17. committees. Board of Editors - Appoint Judge Megan Simpson, Buffa- OBA 2013 COMMITTEE EXECUTIVE SESSION lo, as an associate editor from LEADERSHIP AND BOARD The board voted to go into District 4 to replace Erin LIAISONS executive session, met in ses- Means, term expires 12/31/15. President-Elect Stuart pre- sion and voted to come out of MCLE Commission – sented a list of committee executive session. chairpersons, vice chairperson Appoint Jack Brown, Tulsa, to NEXT MEETING replace Richard J. Phillips and and assignment of board Margaret Hamlett, Tulsa, to members as liaisons to the The Board of Governors met replace Richard Ogden, terms committees. at the Oklahoma Bar Center in expire 12/31/15. YLD LIAISONS TO OBA Oklahoma City on Jan. 11, 2013. A summary of those JUDICIAL NOMINATING STANDING COMMITTEES actions will be published after COMMISSION YLD Chair-Elect Vorndran the minutes are approved. The The board approved Presi- presented a list of Young Law- next board meeting will be dent Christensen’s recommen- yers Division members who held Friday, Feb. 22, 2013, at dation to appoint Deborah A. will serve as OBA committee Post Oak Lodge in Tulsa. Reheard, Eufaula, to replace liaisons. President-Elect Stuart

364 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 BAR FOUNDATION NEWS

Our Grantees Are What We Are All About By Susan B. Shields

We are well into 2013 and intervention services and for Each new year, the Oklaho- have all (hopefully) fully victim advocates who help ma Bar Foundation looks for- recovered from the end of 2012, Oklahomans live safely and ward with optimism and with our holiday and year-end free from abuse. OBF grantees, enthusiasm to the work that festivities, the dangers of the the Family Shelter of Southern will be accomplished. A new fiscal cliff and the debt crisis Oklahoma and Domestic Vio- year is also, however, a time still to be addressed. lence Intervention Services of to reflect upon past successes Tulsa and Creek Counties and to remind ourselves about Another “crisis” said to (DVIS) are several successful the purposes of our bar foun- be facing our country is the programs. dation. The financial support enormous need for pro bono of Oklahoma lawyers and service from lawyers. It is esti- OBF grants also support others is so very important in mated that the legal needs of programs, such as the Youth helping to meet the funding more than 80 percent of Amer- Legislative Day at the Capitol, needs of OBF grantees. These icans with limited income are that encourage Oklahoma stu- people work every day to currently unmet. That is a cri- dents to learn more about the achieve access to justice and to sis that the OBF, and every American democratic process. advance legal education and OBF supporter, directly helps Through funding from the the science of jurisprudence. to improve. OBF, these projects designed Thank you for your support! to aid students in learning OBF Fellows dues and other more about the laws and Ms. Shields is OBF president sources of financial support our legal system have proven and can be reached at provide funding each year for beneficial to students across [email protected]. pro bono domestic violence the state.

SUCCESS STORIES… Rena1 is a 30-year-old mother had previously abused other home and find a job; and of three, a cancer survivor and women. The victim advocate Stanley’s parole has now been a victim of numerous incidents from the Family Shelter of revoked. He is facing incarcer- of domestic abuse. In 2010, Southern Oklahoma worked ation for up to 30 years. Rena Rena became involved with an with Rena and continued to is receiving counseling for her- abusive and vicious man, Stan- work with law enforcement and self and her children and has ley. One day, Rena woke from all of Stanley’s victims. Thanks been able to return to school. a nap to find Stanley standing to the services provided by the Rena now speaks at candlelight over her with a knife laughing Family Shelter and the funding vigil ceremonies to encourage uncontrollably. He had locked provided by the Oklahoma Bar other victims to seek legal the children outside before Foundation, Rena was able to action that will bring changes waking her. This same man develop a safety plan, find a to their lives. continued on next page

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 365 YOUTH LEGISLATIVE DAY SUCCESS STORIES cont. AT THE CAPITOL TESTIMONIALS FROM Sally came to the DVIS office after CHEYENNE MIDDLE SCHOOL her husband beat her. Ken “just snapped” one evening and attacked her in their home while she held their young child. After the attack, Ken went into another room and sat This program is key in teaching children on the couch until the police arrived about government. It teaches you how to write and took him into custody. Ken pled guilty on the criminal charges and and review bills. You also learn how it feels to be agreed, as part of his sentencing, to patient, work in legislature, and keep composure. consistently take his prescribed med- I was honored to attend and compete to pass a ication and to be monitored by the courts. This monitoring provided bill my partner and I wrote. All the debating and great comfort to Sally, and after open discourse in such little amount of time was settlement negotiations between the DVIS office and the husband’s attor- exciting! Thank you again, and please keep the ney, the parties were able to reach program running! – Jayzen an agreed settlement. An emergency protective order was in place while this case was pending and the client has reached a point where she now feels safe and is willing to dismiss My Youth and Government experience is one her protective order with the resolution of the divorce. I will remember forever. I really enjoyed going to the Capitol and working in the small committees. o We learned about our Legislature, voted in small Mark suffers from cerebral palsy. groups to eliminate bad bills and learned about He came to DVIS Legal Services for a divorce in 2009 after being bat- motions. After voting away the poor bills, we tered by his wife, Patty. He and his recessed, ate lunch and then proceeded to the wife have a young child. For months Senate Chamber. Here, we debated all of the Mark had been staying with Patty in hopes of protecting his only child bills that advanced through the committees. from the convicted child molester It was amazing. – Cameron that Patty was associating with. After learning of this, the DVIS attorney contacted a probation officer and informed her that a convicted April 1, I had a chance to be a senator. molester was around a child. That Youth from all over Oklahoma came to announce problem was solved. DVIS was able to get temporary orders that gave the bills they had written, which all covered Mark child custody and to estab- different topics: from healthy food in schools to lished supervised visits for the moth- protecting endangered animals in Oklahoma. er. The case is still ongoing, but this was a giant victory for Mark. Youth and Government gives you a chance to be a senator and teaches respect, maturity and how to 1. All names have been changed for make new friends. My experience at Youth and confidentiality. Government was amazing. I would recommend it to everybody. – Jason

366 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 • To become a Fellow, the pledge is $1,000 payable within a 10-year period at $100 each FELLOW ENROLLMENT FORM year; however, some may choose o Attorney o Non-Attorney to pay the full amount or in Name: ______greater increments over a shorter (name, as it should appear on your OBF Fellow Plaque) County period of time. Firm or other affiliation: ______

• The OBF offers lesser payments Mailing & delivery address: ______for newer Oklahoma Bar Associ- ation members: City/State/Zip: ______n First-Year Lawyers: lawyers Phone: ______who pledge to become OBF Fel- E-Mail Address: ______lows on or before Jan. 2, of the year immediately following their The Oklahoma Bar Foundation was able to assist 25 different programs or proj- admission may pay only $25 ects during 2012 and 26 in 2011 through the generosity of Oklahoma lawyers – providing free legal assistance for the poor and elderly; safe haven for the per year for two years, then abused; protection and legal assistance to children; law-related education pro- only $50 for three years, and grams; other activities that improve the quality of justice for all Oklahomans. then at least $100 each year The Oklahoma Bar legend of help continues with YOU. thereafter until the $1,000 ______I want to be an OBF Fellow now pledge is fulfilled. – Bill Me Later!

n Within Three Years: lawyers ______$100 enclosed & bill annually admitted three years or less at ______Total amount enclosed, $1,000 GRANT PROGRAMS the time of their OBF Fellow ARE IN CRISIS pledge may pay only $50 per ______New Lawyer 1st Year, $25 enclosed year for four years and then at & bill Annually as stated Join to d a y an d least $100 each year thereafter ______New Lawyer within 3 Years, h e l p more t h an until the $1,000 pledge is $50 enclosed & bill annually as stated 90,000 Ok l a h omans fulfilled. ______I want to be recognized at the higher in nee d . level of Sustaining Fellow & will • Sustaining Fellows are those continue my annual gift of at least $100 – Gi v e to d a y at (initial pledge should be complete) who have completed the initial w w w .o k b ar f o u n d ation .org $1,000 pledge and continue ______I want to be recognized at the highest leadership level of Benefactor their $100 annual contribution to Fellow & annually contribute help sustain grant programs. at least $300 – (initial pledge should be complete)

______My charitable contribution to help offset the • Benefactor Fellow is the highest Grant Program Crisis is enclosed leadership giving level and are those who have completed the Your Signature & Date: ______initial $1,000 pledge and pledge to pay at least $300 annually to OBA Bar# ______help fund important grant programs. Benefactors lead by PLEASE KINDLY MAKE CHECKS PAYABLE TO: Oklahoma Bar Foundation • P O Box 53036 • Oklahoma City OK 73152-3036 • (405) 416-7070 example. Many thanks for your support & generosity!

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 367 ACCESS TO JUSTICE

American Indian Wills Clinic Provides Development of Practical Skills through Service By Casey Ross-Petherick

Oklahoma City University School of Law is home to the Jodi Marquette American Indi- an Wills Clinic. The clinic provides will drafting services to American Indians in Oklaho- ma who own an interest in trust or restricted American Indian land. Through the clinic, law students earn academic credit working with clients to draft estate planning documents, while under the direct supervision of the licensed attorney clinical professor.1 There are 38 federally recognized tribal governments within the state of Oklahoma. Oklahoma City University law students Zach Reams (left) and Over 330,000 of Oklahoma’s Darren Ferguson review a case file during their American Indian Wills citizens are American Indian Clinic class. or Alaska Native.2 Nearly 1.1 million acres of land within ests and to create incentives Oklahoma are held in Indian for individual landholders to status.3 engage in estate planning. The act also expands the testamen- FEDERAL LAW FOR Over 330,000 of AMERICAN INDIAN tary powers of individual ESTATES Oklahoma’s citizens landholders to dispose of property without compromis- In 2004, Congress passed the are American Indian ing the land’s Indian status. American Indian Probate HISTORY OF SERVICES Reform Act.4 This act amend- or Alaska Native. ed the Indian Land Consolida- Oklahoma City University tion Act to create new proce- School of Law began provid- dures for the administration of dures that are to be followed. ing wills services to American American Indian land estates,5 The act was passed to elimi- Indians in Oklahoma during specifically setting forth the nate confusion among various the 2009 calendar year. The intestate succession law, wills state laws, to reduce fraction- Wills Services Project received requisites and probate proce- alization of Indian land inter- funding through a generous

368 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 grant from the Oklahoma Bar seeking to enhance their pro- Fundraising efforts are now Foundation in the amount of fessional skills; more than 50 underway to sustain the clinic $20,000 for the 2009 calendar students have completed the beyond the term of the initial year, and in that initial year, American Indian Wills Clinic. gift. For more information, the project completed 66 wills. Since the clinic’s inception in please contact me at January 2010, legal services 405-208-5312 or by email at In 2010, OCU opened the have been provided to hun- [email protected]. Jodi Marquette American Indi- dreds of clients, completing an Wills Clinic. The clinic was Ms. Ross-Petherick is a profes- over 300 wills. made possible through an sor at Oklahoma City University anonymous donation of While the clinic provides a School of Law. $250,000, which was directed wonderful service to clients to continue and expand the who might not otherwise be 1. Professor Casey Ross-Petherick, J.D., M.B.A (Cherokee) serves as the clinical profes- services offered under the ini- able to afford this specialized sor for the American Indian Wills Clinic. tial OBF grant. This generous legal representation, the big- 2. http://quickfacts.census.gov/qfd/ states/40000.html. donation will sustain the clinic ger benefit is realized by the 3. www.fs.fed.us/people/tribal/tribexd. through the 2013 calendar students who develop their pdf. 4. Public Law 108-374. year. practical skills and substantive 5. AIPRA does not apply to Restricted knowledge through the clini- Property Allotments of the Five Civilized The course has become a cal experience. Tribes, or the Osage Allotments. popular choice for students

Executive Director We offer training in Search Title Examination The Tulsa County Bar Association & and Tulsa County Bar Foundation Energy Law are seeking candidates for the position of Some classes approved for Executive Director. 13 CLE credit hours Details on the position in Oklahoma and the application are available at Check out our offerings at www.tulsabar.com www.TheMarvelEnergy.com 405-269-1998

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 369 YOUNG LAWYERS DIVISION

You May Be a Member and Not Realize It By Joe Vorndran

I am often asked, “Who can time and passion to a wide training, networking, business participate in the Young Law- range of projects and initia- development, and the oppor- yers Division, and what does tives. To communities tunity to have an important YLD do?” The simple answer throughout the state, the YLD voice in our association. is that all members of the is a resource for public service The YLD has played an Oklahoma Bar Association and community improvement important role in my develop- who are in good standing and projects. To young lawyers, ment as a lawyer and has pro- who were admitted to practice the YLD provides leadership vided me with opportunities law (for the first time) and relationships that within the past 10 years will serve me long are automatically YLD after I enter the ranks members. The YLD proof the “old” lawyers vides an avenue for If you… division. Oklahoma’s young lawyers to work on bar-re- I want to take this lated and public service- • are a member of the OBA opportunity to encour- related projects. age those young law- • are in good standing yers who may be think- While this succinct ing about becoming answer is very accurate, • were admitted to practice law involved to log into it does not tell the whole within the last 10 years MyOKBar and sign up story. for a committee, and The YLD is many • are interested in public-service watch the bar journal things to many people. projects for upcoming YLD To the bar association as events. As always, a whole, the YLD is the • want to become more involved please feel free to con- farm system — training tact me directly with and developing bar with the OBA any questions and leadership for the future. thank you for this To the Board of Gover- opportunity to serve. nors and various OBA We need your help! Mr. Vorndran is YLD committees and sections, chair and practices in the YLD is an important Sign up for a committee at Shawnee. He can be reached partner that provides my.okbar.org. Visit www.okbar.org/ at [email protected]. members/yld for more information.

370 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 CALENDAR OF EVENTS February

18 OBA Closed – Presidents Day observed 19 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Barbara Swinton 405-713-7109 OBA Civil Procedure and Evidence Code Committee meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact James Milton 918-594-0523 20 Oklahoma Bar Foundation Grants and Awards Committee meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy 405-416-7070 OBA Law Day Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Richard Vreeland 405-360-6631 OBA Women In Law Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Kim Hays 918-592-2800 20-21 OBA Law-related Education Close-Up program; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Jane McConnell 405-416-7024 March 21 Oklahoma Justice Commission meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City; 1 OBA Section Leaders Council meeting; 12 p.m.; Contact Drew Edmondson 405-235-5563 Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Roy Tucker 918-684-6276 OBA Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City with tele- 5 OBA Government and Administrative Law conference; Contact Judy Spencer 405-755-1066 Practice Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact 22 OBA Board of Governors meeting with Tamar Scott 405-521-2635 president’s summit; 9 a.m.; Postoak Lodge, 5323 W. 31st St. N., Tulsa; Contact John Morris Williams 6 OBA Diversity Committee meeting; 12 p.m.; 405-416-7000 Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Kara Smith 405-923-8611 Oklahoma Association of Black Lawyers meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma 7 OBA Heroes Bootcamp; 8:30 a.m.; Oklahoma Bar City; Contact Donna Watson 405-721-7776 Center, Oklahoma City; Contact Susan Damron Krug 405-416-7028 OBA Rules of Professional Conduct Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City OBA Lawyers Helping Lawyers discussion and Tulsa County Bar Center, Tulsa; Contact group meeting; 7 p.m.; Office of Tom Cummings, Paul Middleton 405-235-7600 701 NW 13th St., Oklahoma City; RSVP to Kim Reber [email protected] 26 – March 1 OBA Lawyers Helping Lawyers discussion OBA Bar Examinations; Oklahoma Bar Center, group meeting; 7 p.m.; The Street Law Firm, 400 S. Oklahoma City; Contact Oklahoma Board of Bar Boston Ave, Ste. 1100 W., Tulsa; RSVP to Kim Reber Examiners 405-416-7075 [email protected]

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 371 FOR YOUR INFORMATION

OBA Family Law Section Gives Back The OBA Family Law Section and its members recently donated more than $1,800 to Emergency Infant Services of Tulsa. The nonprofit organization meets the basic needs (such as formula, milk, food, diapers, medicine, clothing and furniture) of infants and children under five whose families are in crises or emergency situations. EIS also partners with local hospitals and other nonprofit groups to assist with other items to keep infants safe.

Looking for an Opportunity to Serve the Community? Oklahoma Lawyers for Children will be the beneficiary of the 2013 Redbud Classic to be held in Nichols Hills on April 6-7. As the beneficiary, OLFC must provide all of the volunteers to staff and promote the various racing events, including the USATF- sanctioned 5K and 10K. Those interested in volunteering may contact OLFC at 405-232-4453. To register or learn more about the event, visit www.redbud.org.

Diversity Scholarships Offered Fellers Snider, with offices in Oklahoma City and Tulsa, has established diversity scholarships for students studying at the three Oklahoma law schools. Firm representative Brent Johnson said, “The benefits to both clients and employees of a diverse and inclusive firm, including varied perspectives, alternative methodologies and creative solutions, are tremendous. As a firm, Fellers Snider recognizes this, and we want to encourage students to do the same.” Scholarships in the amount of $3,000 each are available to first- and second-year law school students at OCU, OU and TU. They will be awarded in the spring.

372 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Lawyers Encouraged to Devote Time, Talent to Serving Communities in 2013 OBA President Jim Stuart is encouraging all Oklahoma lawyers and law firms to make giving back a top priority. During 2013, the Oklahoma Bar Journal is supporting this effort by spotlight- ing those lawyers and law firms who give of their time, talent and financial resources to make their communities a better place. Have a great story or photos to share? Email Lori Rasmussen at [email protected].

Connect With the OBA Through Social Media Have you checked out the OBA Facebook page? It’s a great way to get updates and information about upcoming events and the Oklahoma legal community. Like our page at www.facebook.com/ oklahomabarassociation. Young lawyers and new admittees can also check out all the happenings at www.facebook.com/OBAYLD.

OBA Board of Editors Seeks Criminal Law Authors January Windrix is the editor for an upcoming issue devoted to criminal law, and she is looking for articles. Articles are due before May 1. Contact her at [email protected] if you are interested. Also, the Oklahoma Bar Journal is always looking for short humorous or inspiration stories for its Back Page, and submission details are available at www.okbar.org.

Holiday Hours The Oklahoma Bar Center will be closed Monday, Feb. 18, in observance of Presidents Day.

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

Francine Jackson Barton Jennifer Leigh Flexner Linda F. Martin OBA No. 20587 OBA No. 20055 OBA No. 17180 923 Harvard St. 3335 S. Yorktown Ave. 3046 Creekview Drive Houston, TX 77008 Tulsa, OK 74105 Grapevine, TX 76051 Velma Boodt Benjamin Samuel Labow Philip Dailey Morgan OBA No. 11766 OBA No. 20081 OBA No. 16557 53708 W. 231st St. South 855 N. Detroit St. Two Alliance Center Depew, OK 74028 Los Angeles, CA 90046-7607 3560 Lenox Road N.E., Suite 1400 John Wesley Caldwell Jr. Daniel Patrick Lennington Atlanta, GA 30326 OBA No. 1424 OBA No. 21577 P.O. Box 1405 680 N. Heatherstone Drive Susan Lynne Mullins Fairacres, NM 88033-1405 Sun Prairie, WI 53590 OBA No. 11684 4808 Kathy Lynn Drive Michelle May Carter Gary Dale Madison Norman, OK 73072 OBA No. 18543 OBA No. 5619 14221 S. Urbana Avenue P.O. Box 172 Lori Ann Sharpe Bixby, OK 74008 Sullivans Island, SC 29482 OBA No. 15837 338 Shadow Creek Drive Brentwood, TN 37027

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 373 BENCH & BAR BRIEFS

Culp, McMillin, Chaffin, Bah- tem. She is a 1989 graduate of ner & Long law firm, and he the OU College of Law. is a 1978 graduate of the OU ogan & Lowry LLP, with College of Law. Loffices in Vinita and ulsa lawyer Dean Luthey Grove, announces Michael T. dmond attorneys Johnny Thas been elected a general Torrone is now a partner in EBeech and Tim Reese member of the International the firm. He practices in vari- were recently recognized for Masters of Gaming Law. The ous areas including health, outstanding alumni volunteer organization is an interna- rural electric cooperative and service provided to Tau tional, invitation-only society Indian law, as well as civil Kappa Epsilon fraternity of general member private litigation, trial practice and chapters in Oklahoma. Mr. practice lawyers and associate appellate practice. He re- Beech serves as advisor for member gaming regulators, ceived his bachelor’s degree the fraternity’s chapter at accountants, consultants and from Pennsylvania State Uni- Southwestern Oklahoma State in-house counsel. General versity in 2004 and his J.D. University, and Mr. Reese members, who have achieved from the TU College of Law, works with undergraduates recognition in gaming matters graduating with honors, at the University of Central over a lengthy period of in 2007. Oklahoma. years, are elected through a klahoma City attorney highly selective and rigorous he Oklahoma Association Tim Rhodes was recently process. O Tof Defense Counsel sworn in as Oklahoma Coun- approved their 2013 officers ty’s seventh district court and directors at their recent clerk. A longtime deputy annual winter meeting. Asso- court clerk, he was elected to ciation members approved office in August 2012 after the following slate: President winning the primary runoff Malinda Matlock, President election with nearly 60 per- Elect Jennifer Annis, Imme- cent of the vote. He attended diate Past President Nathan OCU School of Law and is E. Clark, Vice President ee Slater has been named a 1990 graduate of the OU Angela Ailles-Bahm, Treasur- Lexecutive director of the College of Law. er Jim Secrest III, Secretary Oklahoma Ethics Commis- he board of directors of Carrie Palmer and DRI State sion, and Debbie Maddox McAfee & Taft have elect- Representative Jeromy accepted the position of the T ed Richard D. Nix to lead the Brown. Members of the asso- commission’s general coun- firm for a third consecutive ciation’s board of directors sel. Mr. Slater has practiced in three-year term, a first in the are Jason Glass, Leslie the areas of campaign finance firm’s history. Since Mr. Nix Lynch, Pete Serrata III, W. and lobbyist regulations, and began serving as managing Joseph Pickard, Lindsay he is a former secretary of the director in 2007, the firm’s McDowell, Eric Begin, Steve Oklahoma Election Board. He milestones include the open- Johnson, Randy Long and is a former newspaper jour- ing of a Tulsa office, the Christopher Wills. nalist and a 1988 graduate of acquisition of nationally the OCU School of Law. Ms. rdmore attorney Robert regarded boutique litigation Maddox most recently served D. Long has been firm, the expansion of the A as OBA assistant general appointed to the Board of Bar firm’s niche areas of exper- counsel. Prior to that, she Examiners representing the tise, and the addition of more practiced criminal and family Fifth Judicial District of Okla- than 50 lawyers. He joined law. She also served for 11 homa. From 2004 to 2012, he the firm in 1985 after graduat- years as a lawyer in the Okla- served as served as an associ- ing from the OU College of homa Indigent Defense Sys- ate examiner on the board. Law and later led the firm’s He is partner in the Fischl,

374 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 Employee Benefits Group. from OCU School of Law Crook Martin to the firm’s He was elected to the firm’s in 2012 and graduated with executive committee. Mr. board of directors in 2005 and honors from Minot State Herrold is an experienced served two years before tak- University, part of the Univer- trial attorney who practices ing the reins as managing sity of North Dakota system primarily in the areas of com- director. The firm’s share- in 2008. mercial litigation, fiduciary holders have also elected liability and bankruptcy-relat- ania A. Nasreddine has Robert L. Garbrecht as the ed matters. His practice also been named a shareholder newest member of its board R involves state and federal with GableGotwals in the of directors. He is a commer- appeals, commercial disputes, Tulsa office. She has been an cial transactions attorney who banking law/lender liability, associate with the firm since principally practices in the creditor’s rights, admiralty/ 2005. Her commercial litiga- areas of business acquisitions, maritime issues and commer- tion experience includes finance, real estate, and state cial law and contracts. Mr. representing several major and local taxation law. Prior Bryan is an experienced liti- energy clients in Texas, New to his election to the firm’s gator whose practice covers Mexico and Oklahoma, as board, he served as leader of a variety of business-related well as assisting with com- its Real Estate Group. disputes in state and federal plex contractual issues. Her courts, including defense of cAfee & Taft announces transactional practice includes business tort and breach of that corporate attorney constructing and negotiating M contract actions, construction Richard D. Johnson has leases including real estate, claims, and defense of electric joined the firm. His practice is oil and gas, and frac sand, as utilities in significant proper- focused on business and com- well as assisting small busi- ty damage and personal inju- mercial transactions, includ- nesses with general legal ry claims. Mr. Ferguson’s ing oil and gas law, mergers issues. She received her J.D. practice emphasizes civil and and acquisitions, real estate from the OU College of Law commercial litigation and law and ad valorem matters, and her B.A. in economics includes gas contracts, gener- contract drafting and negotia- and political science from al oil and gas, intellectual tions, corporate and securi- Emory University. property and trade secrets, ties, and business entity selec- hillips Murrah PC antitrust, fiduciary duty, and tion and formation. As part of announces Jasmine A. other commercial tort, con- his oil and gas practice, he P Majid has joined the firm in tract and statutory claims. represents exploration, pro- its Oklahoma City office and Ms. Martin practices in the duction and midstream ener- will launch its immigration area of environmental law gy companies in a broad practice. She previously and water law, with more range of matters, including worked in Washington, D.C., than 25 years of experience in asset sales and acquisitions, as director of agency liaison both litigation and regulatory lease negotiations, title opin- and policy analyst with feder- matters, including hazardous ion review and drafting, and al agencies responsible for waste, natural resources, the preparation of joint oper- implementing immigration Superfund and water quality. ating agreements, marketing laws in the United States. She agreements, equipment leases he GableGotwals law firm has also worked to develop and other contracts. He is also has announced its 2013 pro bono public service proj- T a CPA. He earned his J.D., slate of officers and directors. ects aimed at assisting immi- MBA and bachelor of accoun- Tapped to serve as officers are grants facing legal and tancy degrees from OU. David Keglovits, Tulsa, chair healthcare challenges. She is a and CEO; Sid Swinson, ester Loving & Davies 1995 graduate of the Temple Tulsa, president; Richard Law Firm of Edmond University School of Law. L Carson, Tulsa; secretary; and announces Sarah Clutts has oerner, Saunders, Daniel Dale Cottingham, Oklahoma joined the firm as an associ- & Anderson LLP has City, treasurer. Serving as ate. Her areas of practice D named David H. Herrold as directors are Terry Ragsdale, include family, employment, its new managing partner in Tulsa; Rob Robertson, Okla- estate planning, and general its Tulsa office. The firm has homa City; Scott Rowland, and complex litigation. She also named N. Lance Bryan, Tulsa; and Amy Stipe, Okla- graduated summa cum laude Tom Q. Ferguson and Linda homa City.

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 375 klahoma Assistant Attor- law, medical malpractice and eirdre O. Dexter is Oney General Megan Tilly premises liability. The firm Dpleased to announce the has been named the new chief also announces Jake G. formation of Deirdre Dexter of the multicounty grand jury, Pipinich has joined the Tulsa PLLC. Her practice will which investigates criminal office as an associate practic- include alternative dispute matters in all 77 Oklahoma ing in the areas of insurance resolution, including arbitra- counties and handles matters defense, personal injury, med- tion and mediation, where of state interest as well as ical malpractice, employment she has extensive experience assists local law enforcement. law and general civil litiga- arbitrating and mediating She is a 2009 graduate of the tion. He graduated cum laude employment, commercial and OU College of Law. As chief, from OCU Law School in civil rights matters. She also Ms. Tilly replaces Charles S. 2009. In addition, Hailey will continue to represent cli- Rogers, who recently was Hopper, Jessica Speegle and ents in connection with promoted to senior assistant Raegan Sifferman have employment law matters attorney general. joined the firm as associates. before administrative agen- Ms. Hopper practices in the cies and courts, as well as ellers Snider announces areas of general civil litigation advise employers regarding that associates McKenzie F and insurance defense law. day-to-day human resources Anderson and David She received her B.A. in issues such as terminations, Woodral have become share- advertising from Pepperdine investigations, training, hand- holders in the firm. Ms. University in 2008 and her books, policies and proce- Anderson handles complex J.D. from the OU College of dures. She is a 1984 graduate commercial litigation includ- Law in 2012. Ms. Speegle’s of the OU College of Law. She ing bankruptcy and related practice areas also include can be reached at P.O. Box recovery actions based on general civil litigation and 220, Sand Springs, 74063; financial fraud and malfea- insurance defense law. She 918-607-2766. sance, consumer class actions, received her B.A. in political and various types of business Wayne Lee announces science and history from disputes. She earned her J.D. . the opening of Wayne Southwestern Oklahoma State K from the University of Chica- Lee Law located at 204 E. University, graduating magna go Law School and graduated Grand, Ponca City, 74601. He cum laude in 2008. She summa cum laude from Emory will practice primarily in the received her J.D. from the OU University with a B.A. in eco- areas of workers’ compensa- College of Law in 2012. Ms. nomics and Russian. Mr. tion, injury law and Social Sifferman’s practice area is Woodral, a registered patent Security disability. He may workers’ compensation attorney, has a practice be reached at kwaynelee@ defense. She received her B.A. focused on intellectual prop- sbcglobal.net; 580-762-5553. in psychology in 2009 from erty law. He has a B.S. in Drury University in Missouri, ubenstein & Pitts PLLC is computer engineering and graduating magna cum laude. pleased to announce deals with procurement and R She received her J.D. from Aaron C. Parks has joined the enforcement of intellectual OCU of Law in 2012. firm as an associate. He prac- property rights across a wide tices in the areas of civil and variety of technologies rang- rowe & Dunlevy recently business litigation, real estate, ing from electrical and com- announced the addition C corporate law and nonprofit puter innovations to complex of Mark A. Craige as a direc- organizations. He received his mechanical devices, chemis- tor in the firm’s Tulsa office, J.D. with distinction from the try, and biotechnology. He focusing his practice on bank- OU College of Law in 2010. graduated from Washington ruptcy, insolvency and credi- University School of Law in tor’s rights. He has engaged oshua Franks and Ashley St. Louis. in private practice since 1982 JHodges have joined the and has focused on bankrupt- public accounting firm of ierce Couch Hendrickson cy, insolvency and commer- HoganTaylor in its state and Baysinger & Green LLP P cial litigation since 1986. He local sales and use tax prac- announces Jason A. Robert- most recently served as direc- tice. Both will be responsible son has become a partner. He tor of MorrelSaffaCraige PC. for researching legal prece- practices in the Tulsa office in He received his J.D. from the dence and statutory language the areas of insurance defense TU College of Law. and regulations in assisting

376 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 corporate clients in SALT harisse O’Carroll present- Assisting Oklahomans Facing defense work and consulting Sed a three-hour seminar on Mortgage-Related Issues” co- with clients in oil and gas, “Ethical Considerations in the sponsored by the Oklahoma manufacturing and health Practice of Law” at the recent Attorney General’s Office. care industries. Both are International MCLE London How to place an announce- Fair held in England. Dele- honors graduates of the TU ment: The Oklahoma Bar Journal College of Law. gates attending the two-day welcomes short articles or fair were from various coun- news items about OBA mem- tries including Australia, Eng- bers and upcoming meetings. If land, France and Russia. Her you are an OBA member and topic was titled “The Ethics of you’ve moved, become a part- Reciprocity, Autonomy Versus ner, hired an associate, taken Benevolence,” a review and on a partner, received a promo- consideration of legal ethics tion or an award, or given a challenges which cross talk or speech with statewide boundaries — jurisdictional, or national stature, we’d like avid A. Trissell recently moral and ethical. to hear from you. Sections, Ddelivered remarks at a committees and county bar workshop, “Legal Perspec- herri K. Anderson of associations are encouraged to tives on Resilience in Disaster STulsa participated in a submit short stories about Regulation,” at the University panel discussion on “Repre- upcoming or recent activities. of Antwerp, Belgium. He dis- sentation in Connection with Honors bestowed by other cussed the strategic develop- an IRS Audit” during the publications (e.g., Super Law- ment of resilience policy in American Association of yers, Best Lawyers, etc.) will not the U.S., and provided exam- Attorney-Certified Public be accepted as announcements ples of U.S. laws and regula- Accountants’ recent South- (Oklahoma-based publications tions aimed at developing west Regional Education are the exception.) Information resilience practices within Conference in Austin, Texas. selected for publication is both the government and She is a 2004 graduate of the printed at no cost, subject to private sectors. He is a 1992 TU College of Law. editing, and printed as space graduate of the OU College permits. uke Wallace and David of Law. LHumphreys recently pre- Submit news items via email to: evin Kuhn of Denver sented in Oklahoma City and Lori Rasmussen Kpresented “The Trial Tulsa on the topic of “Taking Communications Dept. Lawyer’s Perspective on the Offense When Defending Oklahoma Bar Aassociation (405) 416-7017 Judicial Conduct and Mis- Homeowners in Foreclosure.” [email protected] conduct” at a recent judicial The presentations were part ethics trainings session for of the CLE seminar “Mort- Articles for the March 16 issue administrative law adjudica- gage Modification and Fore- must be received by Feb. 19. tors. He is a 1977 graduate of closure: A Free Primer for the OU College of Law. Oklahoma Attorneys on

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 377 IN MEMORIAM

homas A. Bamberger of ing business and law. His director of Oklahoma DHS; TEldon died Oct. 2, 2011. studies were interrupted by and later as superintendent of He was born May 28, 1926, in his service in the U.S. Army, schools in Kansas City, Mo. In Massillon, Ohio. He served in where he served 16 months retirement he enjoyed sailing, the U.S. Navy in the South at the Korean Demilitarized dancing, traveling and listen- Pacific during World War II Zone after the Korean Con- ing to music of all varieties. and in the U.S. Air Force flict, retiring a captain. He udge Willard L. Driesel Jr. stateside during the Korean returned to the OU College of of Broken Bow died Dec. 29, Conflict. He was a trial law- Law, graduating in 1958. He J 2011. He was born Dec. 7, yer who served 12 years in returned to Ponca City and 1953, in Ponca City and had the state Legislature, advocat- became an associate of Sen. lived in McCurtain County ing for civil rights, the dis- Roy Grantham. They became since 1986. His background abled, and the disadvantaged. partners and practiced law includes several years in law He spent the last 30 years of together until Sen. Gran- enforcement, including serv- his life ranching in Cherokee tham’s death. Mr. Casey con- ing as an Oklahoma City County. He taught govern- tinued practicing law until police officer. He graduated ment in Mexico and at the 2011. His true passion was to from the OU College of Law Flaming Rainbow University help build a better Ponca City, in 1985. He was a prosecutor in Tahlequah, and he was raising money and devoting for McCurtain, Pushmataha devoted to his family. time to numerous civic and and Choctaw counties, then charitable causes. A longtime lan Ray Carlson of Bar- went on to become a district member of First Presbyterian tlesville died Feb. 2. He judge for that area. He was A Church, he served as elder, was born June 29, 1947, in selected presiding judge in trustee and deacon and loved Alva, where he graduated the nine counties that made to sing in the choir. In 1980, he from high school. He earned a up southeastern Oklahoma. was selected Outstanding Citi- B.S. in industrial engineering He was also appointed to zen by the Chamber of Com- with honors from OSU and a serve on the Trial Court of the merce. Memorial contributions J.D. from the TU College of Judiciary. He established the may be made to Hospice of Law in 1973. He practiced law first drug court in his area, North Central Oklahoma, the with the Garrison, Brown and and the McCurtain County Poncan Theatre or Marland Carlson law firm from 1974 to Drug Court has been used as Children’s Home. the present. He was a member a model by other counties and of many professional organi- enjamin “Sonny” Demps judges who have established zations and was a highly BJr., of Port Charlotte, Fla., similar programs. He was an regarded speaker lecturing in died Jan. 12, 2013. He was active member of Faith Chris- Oklahoma and other venues born in Harlem, N.Y., on Jan. tian Center. Memorial dona- throughout the U.S. He was a 5, 1934. He served in the U.S. tions may be made to the Wil- recipient of the Oklahoma Air Force. He was an air traf- lard Driesel Scholarship Fund Trial Lawyers Certificate of fic controller who served as at the Idabel National Bank. Meritorious Service. He was director of the FAA Academy ames Richard Faling Jr. of an avid outdoorsman who in Oklahoma City while he Frisco, Texas, died Jan. 24. loved to fish and hunt quail. earned a law degree from J He was born July 27, 1963. He Memorial contributions may OCU School of Law. He later was a 1992 graduate of the be made to the American served as director of the Mike OCU School of Law. Memori- Cancer Society or the Ameri- Monroney Aeronautical Cen- al donations may be made to can Heart Association. ter in Oklahoma City as well PSC Partners for the Cure. as in Brussels, Belgium, as the harles W. Casey of Ponca FAA director of Europe, Afri- City died Dec. 15, 2012. etired Oklahoma Supreme C ca and the Middle East. He Justice Ralph He was born March 19, 1932, RCourt served in the Oklahoma gover- Hodges in Ponca City, graduating died Jan. 16. He was nor’s cabinet as secretary of from high school there in born Aug. 4, 1930, in Ana- health and human services and 1950. He attended OU, study- darko, where he graduated

378 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 from high school in 1948. He ing as an advocate for abused 1956. She earned her bache- graduated from Oklahoma women and children. lor’s degree from TU in 1961 Baptist University in 1952 and and her J.D. from the TU Col- ichard S. Karam of received his law degree from lege of Law in 1970. Memorial Edmond died April 15, OU College of Law in 1954. R contributions may be sent to 2012. He was born in Oklaho- He was in private practice in St. Bede’s Episcopal Church ma City on June 9, 1932, and Durant from April of 1954 of Cleveland, Okla. graduated from Classen High until January of 1957 when School. He served in the U.S. arner Lovell Jr. of Nor- he became the Bryan County Marine Corps from July 1950 man died Jan. 17. He Attorney. After serving in that W through March 1952 during was born April 12, 1944, in capacity for two years, he was the Korean Conflict. He grad- Fort Worth, Texas, and he elected district judge in 1958 uated from OSU in 1956. He grew up in Long Beach, Calif. and was re-elected in 1962. He worked for the IRS, serving He earned a B.A. in journal- served until his appointment as an internal revenue agent ism from OU in 1966 and a to the Oklahoma Supreme while attending OCU School J.D. from the OU College of Court by Gov. Henry Bellmon of Law, graduating in 1964. Law in 1970. He practiced law on April 19, 1965. At the age He practiced law in Enid until for the next 41 years, concen- of 34, he was the youngest his retirement in 1990. During trating in family law. He was justice to serve on the court retirement, he continued his a sole practitioner from 1988 since statehood. He was lifelong interest in sailing his until his retirement in 2011, retained by voters until his sailboat at Lake Hefner. He and he was also of counsel to retirement in 2004. He served also played the tuba with the Able Law Firm. Twice he two terms as chief justice: the local bands and his church argued orally before the Okla- first in 1977-78 and the second orchestra. homa Supreme Court on cases in 1993-94. He was named which successfully established Outstanding State Appellate etired Special District new precedent, one of which Jurist by the Association of Judge Allen Klein of R had national implications. Trial Lawyers of America in Tulsa died Jan. 7. He was born He was an avid traveler who 1977. He also served on the Sept. 5, 1931, in Germantown visited four continents and Board of Trustees for Oklaho- Pa., attended Penn State Uni- numerous islands. Memorial ma Baptist University from versity and graduated with a donations may be made to 1968 until 1971. Memorial degree in electrical engineer- McFarlin Foundation, McFar- contributions may be made ing. He attended Lehigh Uni- lin Memorial United Method- to the OU College of Law versity, earning an MBA ist Church of Norman. Endowed Scholarship and Degree. His business career Memorial Fund or to Free to led him to Tulsa, where he rank Medearis of Musko- Live Animal Sanctuary of earned a J.D from the TU Col- Fgee died Jan. 13. He was Edmond. lege of Law. He began his born March 11, 1967 in Tah- career with a private law firm, lequah, where he graduated ay Elizabeth Huff of and was appointed special from high school. He was a Santa Clara, Calif., died K district judge in 1981. He 1989 graduate of Northeastern Jan. 1. She was born in Okla- ranked first in longevity and State University and earned a homa City on Aug. 12, 1942. retired after 30 years on the J.D. in 1992 from the TU Col- In 1961, she was the first bench in December 2011. He lege of Law. His career of woman from Oklahoma to be was also an accomplished public service began as an arrested during the Freedom runner and competed in assistant district attorney for Rides in Jackson, Miss. Her numerous races throughout Cherokee, Wagoner and Adair commitment to social justice the United States. He com- counties and subsequently as and civil rights led to a law pleted the 15K Tulsa Run in a staff attorney for the Chap- degree from the OU College of October 2012, finishing sec- ter 13 bankruptcy trustee in Law. She was elected the first ond in the over 80 age group. Muskogee. He also served as female prosecutor in Cleveland a staff attorney for Legal Aid County. Ultimately, she moved atti J. Laird of Tulsa died Services of Oklahoma and as to California, where she Jan. 1. She was born Feb. P the city attorney for Musko- became an assistant district 1, 1938, and graduated from gee. He volunteered for sever- attorney in Santa Rosa, work- Will Rogers High School in

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 379 al community and civic orga- 2011. He was born Aug. 24, and Edmond police depart- nizations including those 1918, in Muskogee and estab- ments. He earned his bache- serving abused women and lished residence in Falls lor’s degree in accounting children and other vulnerable Church, Va., in 1954. He from Central State University citizens. He was also involved served in the U.S. Marines and his J.D. from OCU School in community theater and and the U.S. Navy, receiving of Law in 1993. He had a 35- was a frequent actor in local the Combat Medal for his year career in the petroleum productions. Among his sur- service in the South Pacific land business, working as a vivors is his brother, OBA during World War II. As an landman and most recently member Park Medearis of attorney, he served as associ- as an oil and gas attorney in Tahlequah. Memorial dona- ate general counsel for the Oklahoma City. Memorial tions may be made to Kid’s American Council of Life contributions may be made to Space of Muskogee or Grow- Insurers. He was also a mem- the Oklahoma Humane Soci- ing Grace Fund at Grace Epis- ber of the District of Colum- ety in the name of his beloved copal Church of Muskogee. bia Bar Association. He was chocolate Labrador retrievers, a member of the Patrol Craft Gertrude and Gustav Yeager. eorge Eugene Peabody Sailors Association and a Jr. of Oklahoma City died iles Christopher Zim- G long-serving volunteer coun- Sept. 29, 2011. He was born merman of Chandler selor for Haven of Northern M Oct. 3, 1922, in Kennekuk, died Dec. 26, 2012. He was Virginia, to which memorial Kan. He served in the U.S. born March 3, 1949, in donations may be sent. Army during World War II at Topeka, Kan. He grew up in the Battle of the Bulge. He odney D. Watson, who Lawrence, Kan., obtained his graduated from Washburn Rpracticed law in Norman bachelor’s degree from the University in 1956. He served most of his adult life, died University of Missouri at Kan- as the assistant district attor- Jan. 6. He was born Aug. 20, sas City and graduated from ney for the state of Kansas. 1953, in Altus, graduating the University of Arkansas He was a member of the from Lawton Eisenhower Law School in 1976. He was Masonic Lodge, Abdallah High School in 1971. He an agent and the first legal Shrine, and the Metropolitan attended the U.S. Air Force officer of the OSBI, served as Baptist Church in Oklahoma Academy from 1971 to 1973, the district attorney for the City. transferring to OU where he 23rd Judicial District (Potta- graduated with a B.S. in polit- watomie and Lincoln coun- andall Scott Pickard of ical science in 1975. He gradu- ties) 1991-1996, and was in Tulsa died Jan. 26. He was R ated from the OU College of private practice as an attorney born Sept. 28, 1958, in Orange, Law in 1983. He was an active in Meeker and Chandler. He Calif. and graduated from the member of the Cleveland was an Oklahoma Bar Foun- O.W. Coburn School of Law at County Bar Association. He dation Fellow and was very Oral Roberts University in enjoyed traveling, films, fish- proud of his work with the 1983. He practiced law in ing, hunting, music, biking Oklahoma Lawyers for Amer- Tulsa for 30 years and was of and spending time with fami- ica’s Heroes program. He was counsel with the Drummond ly and friends. also a member of the AF&AM Law Firm. He was a member Masonic Lodge #269, loved of Providence Orthodox Pres- teven Lyle Yeager of coaching little league football byterian Church in Tulsa, to Edmond died Jan. 17. He S in Meeker and was passionate which memorial contributions was born in Oklahoma City about ranching. Survivors may be made. June 9, 1949 and was a gradu- include his wife, OBA mem- ate of Harding High School. ichard E. Vernor of Lady ber Stephanie Mather. He worked for the Chickasha RLake, Fla., died July 7,

380 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 CLASSIFIED ADS

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Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 381 OFFICE SPACE POSITIONS AVAILABLE

JENKS OFFICE SPACE. Case share - mentor opportu- GROWING BRICKTOWN LAW FIRM seeks experi- nity. Fully furnished. Access to conference room. Free enced, motivated, and entrepreneurial-minded attor- parking, modern one-story building with established neys with 2+ years of business tax, general business attorneys. Easy access to Tulsa, Creek, Rogers, Wagoner transactions and mergers/acquisition experience. Courthouses. Two spaces available, $550 per month. Compensation package allows ultimate flexibility with Contact [email protected]. your income and work load. We are looking for a select few attorneys who want to be part of a creative unique MIDTOWN TULSA LAW OFFICE SUITES located near group of lawyers and work on a wide variety of busi- TU, four miles from downtown, includes 5 newly reno- ness, banking, real estate, and international transac- vated offices, reception area, kitchen, large conference tions. Send résumé and cover letter/video correspon- room, outdoor patios, parking lot. For more informa- dence clip outlining practice area experience and why tion call 918-582-6900. you are ready to work in a different kind of firm, to [email protected]. Office Spaces – MidTown Law Center

LEGAL WRITING POSITIONS: The University of Tul- Historic atmosphere in restored 1926 building sa College of Law invites applicants for two full-time for solo or small firm lawyers. Rent includes: entry-level contract faculty positions to teach legal re- phone, fax, long distance, Internet, parking, search and writing beginning in the 2013-2014 academ- library, kitchen privileges, on site storage, two ic year. This position will be at the assistant professor conference rooms and receptionist. Enjoy level. The Legal Writing course is a graded, year-long collegiality with civil/trial/commercial attorneys course, focusing on legal analysis, legal research, and 405-229-1476 or 405-204-0404. writing. The primary responsibilities of the position include teaching small sections of first-year students, providing students with significant individualized OFFICE SHARE feedback on their work, mentoring students, and as- SOUTH OKLAHOMA CITY LAW FIRM seeks attorney sisting with the legal writing program as needed. All applicants must hold a J.D. from an accredited law for office sharing arrangement. Rent is negotiable. The firm may refer clients, and or have available additional school and have a strong academic record with exper- legal work. Inquiries should contact Reese Allen at 405- tise in legal research and writing. Post-law school ex- 691-2555 or by fax at 405-691-5172. perience is preferred. To apply, please submit a résumé, a writing sample, and the name, address, and telephone POSITIONS AVAILABLE number of three references by March 1, 2013 to: Prof. Robert Spoo, Chair, Appointments Committee; The AN OKLAHOMA CITY AV RATED FIRM, SEEKS AN University of Tulsa College of Law; 3120 E. 4th Place; ASSOCIATE ATTORNEY WITH 3-5 YEARS’ EXPERI- Tulsa, Oklahoma 74104. The University of Tulsa is an ENCE. Excellent research and writing skills essential. equal opportunity employer. Deposition experience a plus. The attorney will work SENIOR LEVEL EMPLOYMENT ATTORNEY WANT- with partners on insurance defense, medical malpractice ED for Oklahoma City or Tulsa office of an expanding and products liability cases. Health insurance and other national insurance and employment defense firm. Can- benefits included. Résumé, transcript and writing sam- didate should have a minimum of 15 years experience ple are required. Send to “Box X,” Oklahoma Bar Asso- in litigation and must demonstrate strong client rela- ciation; P.O. Box 53036; Oklahoma City, OK 73152. tions skills. Compensation package will reward skills, THE OKLAHOMA TAX COMMISSION, LEGAL DIVI- experience and existing relationships. Additional infor- SION seeks an attorney for an opening in its OKC of- mation may be found at www.helmsgreene.com. We fice. The position will require appearing in District would also consider a small employment litigation Court. 0-2 years’ experience preferred. Applicants must team. Please direct inquiries to Steve Greene at sgreene@ be licensed to practice law in Oklahoma and have a helmsgreene.com or 770-206-3371. current OK driver’s license as the position requires TULSA LAW FIRM - GLASS WILKIN PC – is currently some travel. Submit résumé and writing sample to Ju-

looking for associate attorneys with 3 – 6 years experi- lie Ezell, Assistant Deputy General Counsel, 120 N. ence, excellent academic credentials are mandatory, Robinson, Suite 2000W, Oklahoma City, OK 73102- exceptional writing abilities, and committed work eth- 7801. The OTC is an equal opportunity employer. ic. Considering applications for opportunities in the SOUTH TULSA LAW FIRM is seeking an Associate At- Firm’s transactional practice (general business, health torney with 3-5 years’ experience in general litigation. care, banking, real estate, employment practices) and Experience with real property/title law is preferred. business litigation practice (state and federal courts). Our firm offers a competitive salary and benefits. Please Competitive salary and excellent benefits. Submit CV submit résumé and references to P.O. Box 18486, Okla- in confidence to Kurston McMurray, Hiring Partner homa City, OK 73154 – Attn: Human Resources. Fax 918-582-7166 or [email protected].

382 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 POSITIONS AVAILABLE POSITIONS AVAILABLE

STAFF ATTORNEY. Samson Resources, a large Tulsa ASSOCIATE ATTORNEY: Brown & Gould, pllc, a based independent exploration and production com- downtown Oklahoma City litigation firm has an im- pany, is seeking to hire a Staff Attorney - Oil & Gas Op- mediate position available for an attorney with 3-5 erations. Qualifications include: J.D./L.L.B. Degree years of litigation experience. A qualified candidate from an accredited law school required; current mem- must have solid litigation experience, including a prov- ber of the Oklahoma, Texas, Arkansas, Louisiana or en aptitude for performing legal research, drafting mo- Colorado Bar Associations required; 2 – 5 years of oil tions and briefs and conducting all phases of pretrial and gas experience, with exposure to and familiarity discovery. Salary is commensurate with experience. with operational contracts used in the exploration and Please send resume, references, writing sample and production of oil and gas, including joint operating law school transcript to [email protected]. agreements, lease agreements, drilling contracts and EDMOND LAW FIRM SEEKS OIL AND GAS TITLE AT- other service agreements, title opinions, royalties and TORNEY. Minimum 4 years experience. Send résumé to A&D work preferred; environmental and regulatory “Box P” P.O. Box 53036; Oklahoma City, OK 73152. compliance experience, either in house or with a recognized law firm preferred; excellent oral and written communication skills required; high professional and FOR SALE ethical standards; excellent negotiating, project management, dispute resolution and interpersonal skills. LAKEFRONT LAKE HOUSE FOR SALE on Oklahoma Samson offers an attractive compensation and benefits side of Lake Texoma. Great time to buy - mortgage rates package. Qualified candidates are invited to apply on- are low! Steps from sandy beach, blocks from boat line at www.samson.com or send their résumé to: Sam- launch. 3/2, large windows open to million dollar view, son Resources Attn: Human Resources, JG 2/13, Two new multi-level deck overlooking lake, wet-bar, tile West Second Street, Tulsa, OK 74103-3103. Website: floors, fireplace, outdoor shower, and sprinkler system. www.samson.com. Samson is an equal opportunity Secluded area next to Corp of Engineers forested prop- employer and promotes a drug free environment. erty. Asking price: $324,000. For more information, Di- EOE/M/F/D/V. ane Carruth cell: 580-564-5839; Office: 580-564-2346. THE OKLAHOMA DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES is re- LOST WILL cruiting for a Chief Procurement Officer. This position LOOKING FOR A WILL AND LIVING TRUST: Family provides guidance and direction in the area of contract- is looking for the attorney who assisted in the legal af- ing and procurement of services and products. This fairs of Rayborn Jeane Smith, born Jan. 14, 1926, and may include: development of policies, rules and regu- passed away Jan. 3, 2011. Possibly in the Tulsa area. If lations; formulation of guidelines and procedures; re- you have information, please contact Greg Smith, 918- view of agency grant applications; oversight of agency 521-6121 or 918-363-8155. Certified Procurement Officers (CPOs); performance of highly technical and managerial duties for executive level positions; and other special projects as assigned. CLASSIFIED INFORMATION Preference may be given to candidates who are currently state CPO’s and/or Attorney’s. Must hold and CLASSIFIED RATES: $1 per word with $35 minimum per in- remain current with Certified Procurement Officer cer- sertion. Additional $15 for blind box. Blind box word count tification. Salary range: $60,000 – $75,900. Oklahoma must include “Box ___, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with Department of Mental Health & Substance Abuse Ser- bold headline and border are $50 per inch. See www.okbar.org vices (ODMHSAS) offers excellent benefit & retirement for issue dates and display rates. packages; reference 2013-03 CO with job title and apply to [email protected] with a copy of your DEADLINE: Theme issues 5 p.m. Monday before publication; most recent performance evaluation. Reasonable ac- Court issues 11 a.m. Tuesday before publication. All ads must commodation to individuals with disabilities may be be prepaid. provided upon request. Application period: 2/16/13 – SEND AD (email preferred) stating number of times to be pub- 03/08/13. EOE. lished to: EXPERIENCED LITIGATION ASSOCIATE (3-7 [email protected], or Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036, years) needed by AV-rated Tulsa insurance and trans- Oklahoma City, OK 73152. portation defense firm. Very busy, fast-paced office offering competitive salary, health/life insurance, Publication and contents of any advertisement is not to be 401k, etc. Candidates with strong academic back- deemed an endorsement of the views expressed therein, nor ground and practical litigation experience, please shall the publication of any advertisement be considered an en- send a cover letter describing what you consider are dorsement of the procedure or service involved. All placement the three greatest victories of your legal career, a ré- notices must be clearly non-discriminatory. sumé and writing sample (10 pg. max) in confidence via email to [email protected].

Vol. 84 — No. 5 — 2/16/2013 The Oklahoma Bar Journal 383 THE BACK PAGE

The Last Laugh By Retired Judge David Barnett

In fall, 1966, I was a third- A few days after our coffee then said, “David Barnett, year student at Oklahoma date, we were both in the when you get married, I’m State University and was wedding of two of our high going to be there, and I’ll be getting nowhere fast in my school classmates. During the laughing at you.” pursuit of a degree. I had reception, several of the As soon as school started developed some slovenly hab- groom’s other friends and I for the second semester, I its and was not working hard decorated the newlyweds’ car. called Kay and asked her to enough to be in danger of go with me to an OSU wres- ever graduating. However, tling match. Although she something happened to me had never seen collegiate during finals week that wrestling, she very graciously changed my outlook on life. accepted, and we had our first I had just taken a manage- date. Shortly after Valentine’s ment class final and was sure Day, I took Kay to meet my that I flunked not only the family. I think that was when test, but also the course. As I she realized how serious I was left the classroom building, I about her. Before long, she bumped into Kay Hubbard, a developed similar feelings for friend I had graduated from me. Our relationship blos- high school with. She was on somed very quickly, and we her way to take a final, but formally announced our had a few minutes to get cof- engagement in the spring. fee. We traipsed over to the August 11, 1967, Kay kept student union. her promise to attend my I remember that, during the wedding, but not in the way course of our enjoyable con- I think that was she had anticipated earlier versation, I decided I would that year. You see, I had the marry Kay. Some say that I when she realized last laugh, as I claimed her as had instantly fallen in love, my lovely bride. I’ve made a but I had known her for sev- how serious I was great many snap decisions in eral years, and was probably about her. my life, but none have turned already in love with her. I just out as well as the one made did not realize it until that during finals week, 1966. moment. In any event, she After 45 years of marriage, was not instantly smitten in I love her infinitely more the same way, and it took me This impressed Kay as being than I did then. several weeks to convince her less than genteel, and she Retired Judge Barnett lives in that she loved me too. gave me a mild rebuke for being so mischievous. She Frederick.

384 The Oklahoma Bar Journal Vol. 84 — No. 5 — 2/16/2013 CONNECT.

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