ALSO INSIDE: Civil Rights • Virtual Courtroom • Annual Meeting

Volume 91 — No. 7 — September 2020

Mental Health

contents September 2020 • Vol. 91 • No. 7

THEME: Mental Health Editor: C. Scott Jones FEATURES PLUS 6 Requiring Mental Health Treatment 26 What’s Sex Got to Do to With It? and Involuntary Commitment The Landmark Cases Before the Supreme By John Wylie Court That Broadened the Meaning of ‘Sex’ 12 Service and Support Animals for People By Katherine Mazaheri and Hannah Lunsford with Mental Impairments 32 The Virtual Courtroom is Now in Session By Amy Gioletti By Dallas L. Jones 20 Finding the Keys to Unlock Behavioral 37 Annual Meeting Health Records By Robin Moore

DEPARTMENTS 4 From the President 42 From the Executive Director 44 Law Practice Tips 48 Ethics & Professional Responsibility 50 Board of Governors Actions

54 Oklahoma Bar Foundation News PAGE 26 – Civil Rights 56 Young Lawyers Division 60 For Your Information 62 Bench and Bar Briefs 65 In Memoriam 68 Editorial Calendar 72 The Back Page

PAGES 32 – Virtual Courtroom From The President The Windshield and the Bug By Susan B. Shields

HERE IS A SONG CALLED “The Bug,” written and entertainment that include everything Tby Mark Knopfler, performed by Dire Straits from symphonies, opera, country and on their final studio album and also sung by Mary rock to Broadway shows. Getting to Chapin Carpenter. Both versions are excellent, and if watch Hamilton or Elton John or Kenny you are not familiar with it, I encourage you to take a Chesney from the comfort of home, while listen on the music platform of your choice. The cho- not the same as watching it live on stage, rus of the song goes: is still a pretty good thing. Thanks to the creativity and hard work Sometimes you’re the windshield of John Morris Williams, the OBA staff, Sometimes you’re the bug our Board of Governors and other bar Sometimes it all comes together, baby leaders, the OBA has been doing its best to Sometimes you’re a fool in love take a windshield approach in looking out Sometimes you’re the Louisville slugger, baby to adapt to the changes of this year and to Sometimes you’re the ball consider challenges as learning opportu- Sometimes it all comes together, baby nities instead of as problems. Sometimes you’re gonna lose it all. Sometimes it just takes looking at things from a different view. For exam- I have found myself humming this song frequently in ple, we have learned that OBA mem- the last few months when yet another COVID-related chal- bers are willing to participate in online lenge has arisen. Sometimes I feel like the windshield – section and committee meetings in looking ahead, feeling on top of things and getting things record numbers and that busy attorneys accomplished. Other times the uncertainly of this time especially enjoy the flexibility and con- knocks me off my stride and, on venience of being able to participate from these occasions, I feel more like the their homes or offices. bug getting squished. (continued on page 43) The cancellations of concerts and shows have been one of my per- sonal letdowns as a result of COVID because I am a big music fan and especially enjoy going to see live music. The “bug” in me is disap- SEPTEMBER WELLNESS TIP pointed that there have been no in-person music events to enjoy this Medical studies report there summer and fall. In past years, you are few things that stimulate might have found me attending a the brain the way music does. two- or three-day music festival with Research has shown that listening my children and friends as a part of to music can reduce anxiety, a summer vacation. blood pressure and pain as well President Shields practices in However, the “windshield” as improve sleep quality, mood, Oklahoma City. reminds me to look out and enjoy mental alertness and memory. [email protected] 405-552-2311 the many options for online music

4 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2020 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Volume 91 — No. 7 — September 2020 Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. JOURNAL STAFF BOARD OF EDITORS Advertisers are solely responsible for the JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair content of their ads, and the OBA reserves Editor-in-Chief the right to edit or reject any advertising copy [email protected] LUKE ADAMS, Clinton for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor AARON BUNDY, Tulsa by the Board of Editors. Information about [email protected] submissions can be found at www.okbar.org. CASSANDRA L. COATS, Vinita LAUREN RIMMER Advertising Manager PATRICIA A. FLANAGAN, Yukon BAR CENTER STAFF [email protected] John Morris Williams, Executive Director; AMANDA GRANT, Spiro Gina L. Hendryx, General Counsel; Jim Calloway, Director of Management Assistance VIRGINIA D. HENSON, Norman Program; Craig D. Combs, Director of Administration; Janet K. Johnson, Director of C. SCOTT JONES, Oklahoma City Educational Programs; Beverly Petry Lewis, TONY MORALES, Shawnee Administrator MCLE Commission; Carol A. Manning, Director of Communications; Dawn ROY TUCKER, Muskogee Shelton, Director of Strategic Communications and Marketing; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine OFFICERS & Ogden, Steve Sullins, Assistant General Counsels BOARD OF GOVERNORS Les Arnold, Julie A. Bays, Gary Berger, Debbie Brink, Melody Claridge, Cheryl SUSAN B. SHIELDS, President, Oklahoma Corey, Nickie Day, Ben Douglas, Dieadra City; BRANDI N. NOWAKOWSKI, Vice President, Shawnee; Florence, Johnny Marie Floyd, Matt Gayle, MICHAEL C. MORDY, President-Elect, Ardmore; CHARLES W. Suzi Hendrix, Debra Jenkins, Rhonda CHESNUT, Immediate Past President, Miami; MATTHEW C. Langley, Jamie Lane, Durrel Lattimore, BEESE, Muskogee; MICHAEL J. DAVIS, Durant; TIM E. DECLERCK, Edward Maguire, Renee Montgomery, Enid; JOSHUA A. EDWARDS, Ada; AMBER PECKIO GARRETT, Whitney Mosby, Lauren Rimmer, Tracy Tulsa; BRIAN T. HERMANSON, Ponca City; ANDREW E. HUTTER, Sanders, Mark Schneidewent, Kurt Stoner, Krystal Willis, Laura Willis, Laura Wolf & Norman; DAVID T. MCKENZIE, Oklahoma City; BRIAN K. MORTON, Roberta Yarbrough Oklahoma City; MILES T. PRINGLE, Oklahoma City; ROBIN L. ROCHELLE, Lawton; D. KENYON WILLIAMS JR., Tulsa; JORDAN L. Oklahoma Bar Association 405-416-7000 HAYGOOD, Chairperson, OBA Young Lawyers Division, Shawnee Toll Free 800-522-8065 FAX 405-416-7001 The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, Continuing Legal Education 405-416-7029 except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Ethics Counsel 405-416-7055 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage General Counsel 405-416-7007 paid at Oklahoma City, Okla. and at additional mailing offices. Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Subscriptions $60 per year that includes the Oklahoma Bar Journal Mandatory CLE 405-416-7009 Court Issue supplement delivered electronically semimonthly. Law Board of Bar Examiners 405-416-7075 students registered with the OBA and senior members may subscribe Oklahoma Bar Foundation 405-416-7070 for $30; all active members included in dues. Single copies: $3

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THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 5

Mental Health Requiring Mental Health Treatment and Involuntary Commitment By John Wylie

VERY LIVING HUMAN BEING IS EQUIPPED with the equivalent of an electrochemical Esupercomputer capable of operating your basic bodily functions such as respiration and digestion, operating heavy machinery like your automobile in rush-hour traffic and pondering inchoate problems like what to have for dinner (taking into account the current contents of your refrigerator and determining if you need to stop at the grocery store on your way home) all at the same time. It is no wonder that such a complex organ can be subject to a variety of physical and behavioral conditions that can cause it to produce unexpected results.

Unfortunately, mental health is It is not uncommon for those they will somehow be determined an area of human life that is heavily who should seek treatment for to be “crazy,” and they will have loaded with stigma. The prevailing mental health issues to resist. This is their fundamental rights denied thought seems to be that any mental not peculiar to the realm of mental as a result. This fear is not entirely illness is the equivalent of absolute health issues. The constitutional unfounded. Until recently, the black disability, even though we know right to refuse medical care includes letter law held many provisions of a great number of accomplished the right to refuse even life-saving regarding “lunatics” and other people, present and past, who have measures, if intelligently and clearly pejorative terms for the mentally ill. dealt with and managed bipolar expressed.1 However, because Indeed, the now-defunct Title 35 of disorder, depression and even mental health issues may impair a the Oklahoma Statutes continues schizophrenia. This is probably person’s ability to clearly determine to be titled “Insane and Feeble- because there is so much that we do if they wish to undertake medical Minded Persons,” which held the not know about mental health, and care, it is possible in certain specific Lunacy Law of 1917 among others. the little that we do know is vastly circumstances to legally require The appropriate statutes regarding misunderstood. A person may be the person to submit to care.2 the care of the mentally ill have grappling with a mental health been relocated to Title 43A “Mental issue without even being aware VOLUNTARY MENTAL Illness.” Advancements have been they are doing so. There are few HEALTH TREATMENT made both in society and the law cures presently available, but there The first and best way to help over recent years to treat those suf- are many effective treatments that one who may be suffering from a fering from a mental illness with a can lessen or eliminate the negative mental health issue is to get them much broader degree of respect. effects of mental illness. Again, just to agree to seek help voluntarily. In seeking to persuade one to like any other medical condition, One of the most common concerns seek mental health treatment, it there is no way to get this relief if among those who may need to seek may be helpful to show them that one does not first seek treatment. mental health assistance is that the federal HIPPA law prevents

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 7 the sharing of mental health records people and law enforcement is a copy of the medical evaluation with the same level of protection summoned to the scene. Any made while in detention.7 of any other medical records, but person who appears to be or A request for pretrial detention with one key exception. If a mental states they are mentally ill to a may be included with the petition, health provider believes a patient degree that immediate emer- regardless of whether the indi- presents a serious and imminent gency action is necessary may vidual is presently in emergency threat to the health or safety of a be taken into protective custody detention. Pretrial detention will person (including the patient) or the and detained by law enforcement be ordered if the court finds that public, that provider may contact personnel, also referred to as there is probable cause to detain the appropriate individuals or law emergency detention.3 the individual prior to a hearing officials and inform them. The vast While in emergency detention, on the petition.8 Upon such a find- majority of people who have mental the individual must be evaluated ing, the court sets a hearing on health issues are not violent and are within 12 hours by a mental health the petition and the individual is in no danger of having such referral provider.4 The purpose of this ordered to be detained up to three made. A person who is interested in evaluation is to determine if the days or 72 hours, excluding week- maintaining their privacy would best individual should be held in emer- ends, prior to the hearing.9 Absent accomplish this by voluntarily seek- gency detention. While the individ- such a finding, the individual is ing mental health treatment, rather ual is held in emergency detention, immediately released if in emer- than allowing a condition to escalate. they retain the right to refuse medical gency detention.10 Pretrial deten- treatment. An individual may be tion may be extended by order of FORCED MENTAL HEALTH held in emergency detention for a the court, including any orders TREATMENT/INVOLUNTARY period of five days or 120 hours, for continuances of the hearing.11 COMMITTAL IN OKLAHOMA excluding weekends, unless a court The individual retains the right to The process to place a person order provides for a different time refuse medical treatment during involuntarily into mental health treat- period pending a hearing.5 pretrial detention. Notice of the ment is found at 43A O.S. §§5-410 et The legal process to require hearing must be provided at least seq. In these proceedings, the district an individual to submit to mental one day prior to the hearing to court will determine if the subject health treatment is initiated by the the individual, the person who individual is a “person requiring filing of a verified petition for an filed the petition, the individu- treatment” and, if that determination order requiring treatment in the al’s attorney or court-appointed is made, the least restrictive appro- district court by one of a specified attorney, a treatment advocate or priate treatment required. group of persons, which includes immediate family member of the Typically, the process is begun immediate members of the indi- individual and, if the individual as the result of some action on the vidual’s family.6 If the individual is in emergency detention, the part of the individual that causes is being held in emergency deten- institution where the individual those around them fear for the tion, the court must be so notified is being held.12 At the hearing, the safety of the individual or other along with the petition, along with court hears evidence and makes

If the individual is found to be a person requiring treatment by clear and convincing evidence, the court must next determine the least restrictive means of treatment consistent with the treatment needs of the individual and the safety of the individual and others.

8 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL findings of fact regarding the physical harm, to the individual or ORDERED TREATMENT AND individual’s competency to con- another person. The mere fact that CONTINUING JURISDICTION sent to or refuse medical treat- a person has mental processes that If the individual is found to be ment, including medication.13 are impaired by reason of advanced a person requiring treatment by years, dementia or Alzheimer’s clear and convincing evidence, THE HEARING disease, or is a person with an intel- the court must next determine the ON THE PETITION lectual or developmental disability, least restrictive means of treatment By default, the hearing on a person with a seizure disorder, a consistent with the treatment needs the petition is a bench trial. If person with a traumatic brain injury of the individual and the safety of deemed necessary by the court or or a homeless person is expressly the individual and others.22 After if demanded by the individual, insufficient of themselves to sustain reviewing the options available, a jury trial before a panel of six a finding that the individual is a the court may order the individ- jurors is held on the petition, but a person requiring treatment.17 Adult ual receive treatment other than jury trial may delay the proceed- individuals have the “right to be hospitalization for a period of time ings an additional five days.14 foolish” and make decisions that are set by the court.23 The court has At the hearing, the court is not in keeping with the mainstream continuing jurisdiction over the required to determine if the of society. Unless their actions form individual as a person requiring individual is a “person requiring some sort of threat of implied or treatment during this treatment. treatment” by clear and convincing actual harm to another individual If the court determines that evidence.15 A “person requiring or themselves, there is insufficient hospitalization is required, then treatment” is defined as a person basis for a finding that the individ- custody of the individual is given who because of their mental illness ual must submit to mental health to the Department of Mental or drug or alcohol dependency: treatment. In those situations where Health and Substance Abuse 1) poses a substantial risk of those near the individual fear that Issues for placement in a facility.24 immediate physical harm to self as the individual may be incompetent The individual will remain hospi- manifested by evidence or serious but not violent, they may wish talized until such time as the per- threats of or attempts at suicide to consider whether obtaining son no longer requires treatment or other significant self-inflicted guardianship over the person or as determined by the executive bodily harm, 2) poses a substantial the property of the individual is director of the facility where the risk of immediate physical harm available or appropriate. individual is placed.25 The invol- to another person or persons as If the hearing is held as a bench untary nature of the individual’s manifested by evidence of violent trial, the court may receive as evi- treatment is subject to review by behavior directed toward another dence and act upon the affidavits of the Department of Mental Health person or persons, 3) has placed the licensed mental health profes- and Substance Abuse Issues every another person or persons in a sionals who evaluated the person three months.26 The individual, reasonable fear of violent behavior and the mental health evaluation or the attorney for the individual, directed towards such person or itself.18 If the hearing is conducted may request a court review of the persons or serious physical harm as a jury trial, the petitioner and order for treatment at any time to them as manifested by serious any witness on behalf of the petitioner to be heard within 30 days of the and immediate threats, 4) is in a are subject to cross-examination request for review.27 condition of severe deterioration by the attorney for the person such that without immediate alleged to be a person requiring COURT AND NICS RECORDS intervention, there exists a substan- treatment.19 Likewise, in a jury trial, Court records regarding these tial risk that severe impairment or the person alleged to be a person proceedings are not open to public injury will result to the person or requiring treatment may also be inspection but are available to the 5) poses a substantial risk of imme- called as a witness and cross- individual and their authorized diate serious physical injury to self examined.20 If the individual is representatives, Department of or death as manifested by evidence not found to be a person requir- Mental Health and Substance that the person is unable to provide ing treatment, the petition is Abuse Issues personnel and peo- for and is not providing for their dismissed and the individual is ple having a “legitimate interest” basic physical needs.16 discharged from any detention.21 including bonded abstractors.28 It should be noted that the Court clerks are required to overarching requirement is the report when a court orders the threat of physical harm, or actual involuntary commitment of a

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 9 person due to mental illness to the ABOUT THE AUTHOR Federal Bureau of Investigation John Wylie is a 1997 graduate of or its successor agency for the the OU College of Law. He is an sole purpose of inclusion in of counsel attorney with Tombs the National Instant Criminal Maxwell LLP, a firm dealing with Background Check System (NICS) issues involving tort settlements, database and to the Oklahoma estate planning, probates and 29 State Bureau of Investigation. guardianship issues across Inclusion in the NICS database will the Southwest. cause the record of the involuntary commitment to prevent the indi- ENDNOTES vidual from passing a background 1. Cruzan v. Director, Missouri Department of check necessary for the legal Health, 497 U.S. 261 (1990). 2. Washington v. Harper, 494 U.S. 210 (1990). purchase of a firearm. It should 3. 43A O.S. §5-207(A). be noted that anything short of 4. 43A.O.S. §5-208(A). 5. 43A O.S. §5-208(A)(3). involuntary commitment will not 6. A treatment advocate as defined in Section be referred for inclusion in the state 1-109.1 of this title: 1) The father, mother, husband, wife, grandparent, brother, sister, guardian or of Oklahoma. Other states may use child, over the age of 18 years, of an individual a different standard. alleged to be a person requiring treatment; 2) A licensed mental health professional; 3) A person in charge of any correctional institution; CONCLUSION 4) Any peace officer within the county in which the individual alleged to be a person requiring The recent COVID-19 crisis has treatment resides or may be found; or 6) The created massive disruptions in our district attorney in whose district the person resides or may be found. 43A O.S. §5-410(A). society and will no doubt give rise 7. 43A O.S. §5-410(B)(3). to expanded mental health con- 8. 43A O.S. §5-413. 9. 43. O.S. §5-413(A). cerns in the general public. Anyone 10. Id. concerned about the mental health 11. 43A O.S. §5-413(A)(2). 12. 43A O.S. §5-412(B). of another should seek to open a 13. 43A O.S. §5-415(C). dialogue with that person, encour- 14. 43A O.S. §5-415(B). 15. 43A O.S. §5-415(C). aging them to seek mental health 16. 43A O.S. §1-103(13)(a). treatment. Of course, any threat 17. 43 O.S. §1-103(13)(c). of harm to others or the individ- 18. 43 O.S. §5-415(C)(2). 19. 43 O.S. §5-415(C)(3). ual themselves should be treated 20. Id. as credible and law enforcement 21. 45 O.S. §5-415(D). 22. 45 O.S. §5-415(E). should be immediately informed. 23. 45 O.S. §5-415(E)(2). A person who voluntarily 24. 45 O.S. §5-415(E)(3). 25. 45 O.S. §5-415(E)(6). receives mental health treatment 26. 45.O.S. §5-420(A). can avoid being “adjudicated 27. 45 O.S. §5-420(B). 28. 45 O.S. §5-415(F). mentally defective” or being “com- 29. 21 O.S. §1290.27(A). mitted to a mental institution,” either of which designations may have a detrimental effect in the future. Their treatment records are protected by HIPPA. Merely receiving mental health services is not enough under Oklahoma law to merit inclusion in the NICS database. While there is no “black letter” law to this effect, one can argue that an individual who seeks out necessary mental health services displays enhanced responsibility and stability, despite their mental illness.

10 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

Mental Health Service and Support Animals for People with Mental Impairments By Amy Gioletti EGAL CONFUSION AND PUBLIC OPINION about service and support animals Labounds. News stories and internet searches reveal depictions of out of control animals, falsified documents and an unregulated market of companies selling unnecessary prod- ucts such as vests and certifications. In response, some states, including Oklahoma, have enacted laws to punish individuals who attempt to pass a pet as a service or support ani- mal1 in the context of rental housing.2 Additionally, advocacy groups are calling for federal regulations related to the licensing, training and certification requirements for service and support animals in order to establish a legitimate and regulated commercial industry, rather than an exploitative one.3

From a legal perspective, federal mental impairments to have and only federally funded property and law is the primary vehicle to grant use service and support animals. programs, but also to nearly every various categories of animals to This article will focus exclusively private and public setting, offering people with disabilities for use on federal law, including the ADA, the promise to radically improve in a variety of settings. Due to its Fair Housing Act and Air Carrier the accessibility of public life for comprehensiveness, the Americans Access Act. people with disabilities.5 with Disabilities Act (ADA) is Fundamentally, the ADA perhaps the most frequently cited HISTORY OF THE provides rights to people with federal disability law; however, the AMERICANS WITH disabilities and is administra- ADA is not the only law granting DISABILITIES ACT tively enforced, primarily by the rights to people with disabilities While the Americans with Department of Justice. Likewise, to possess and use service and Disabilities Act is the most well- because the Americans with support animals. Unfortunately, known disability law, it was not the Disabilities Act is colossal in its this web of varying legal and medi- first federal disability rights law. reach, many people turn to the cal criteria can create confusion Both the Architectural Barriers Act ADA for guidance when faced about what is allowed, by whom of 1968 and the Rehabilitation Act with questions about service and and where. This article will not of 1973 pre-date the ADA; however, support animals. Under the ADA, a attempt to persuade the court of those laws are applicable only to person with a disability is defined public opinion. Instead, this article federally funded property and pro- as an “individual [with a] physical will offer guidance on some of grams, such as the public housing or mental impairment that sub- the most frequently encountered program and public schools.4 Thus, stantially limits one or more major settings invoking the legal rights the ADA’s enactment in 1990 was life activities of such individual; and responsibilities of people with bold due to its applicability to not a record of such impairment; or

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 13 being regarded as having such part, the current definition of a with a mental impairment, just as impairment…”6 Title I of the ADA service animal under the ADA is a service animal can be trained to applies to private employers.7 Title “a dog that is individually trained perform work or tasks to benefit a II of the ADA applies to state and to do work or perform tasks for person with a physical impairment. local governments.8 Title III of the the benefit of an individual with Further, the right of people ADA applies to public entities and a disability, including a physical, with disabilities to have and use public transportation.9 Under Title sensory, psychiatric, intellectual service animals is dependent on III of the ADA, the definition of or other mental disability. Other the provision of a reasonable mod- public accommodation includes species of animals, whether wild ification. The ADA requires public a nearly exhaustive list of pub- or domestic, trained or untrained, entities to make reasonable modi- lic places, such as hotels, public are not service animals for the fications to policies, practices and transportation, restaurants and purposes of this definition.”13 procedures to enable equal access bars, movie theaters, auditoriums, There is one notable exception: for individuals with disabilities.17 retail establishments, office of The ADA permits individuals to In the case of service animals, the an accountant or lawyer, parks, possess and use miniature horses modification is typically to a “no schools, museums, fitness centers as service animals, though less animals allowed” or “no pets” and other recreational facilities.10 common.14 Thus, in dramatic con- policy. By allowing the service In terms of the ADA, this article trast to the original definition of animal in contravention to its no will only focus on the similar service animal, the revised defi- pets policy, the entity is modifying requirements of Titles II and III. nition excludes all other types of such policy so that the individual animals. Additionally, regarding with a disability has equal access SERVICE ANIMALS UNDER the exclusion of emotional support to the public accommodation and TITLE II AND TITLE III OF animals and comfort animals, the to ensure the covered entity is not THE ADA regulations maintain “the crime engaging in discrimination. Following implementation of deterrent effects of an animal’s Specifically, when an individual the ADA’s Title II and Title III reg- presence and the provision of brings a dog into a public entity, ulations on July 26, 1991,11 a service emotional support, well-being, the public entity is entitled to animal was defined as any guide comfort, or companionship do assess whether the dog is a service dog, signal dog or other animal not constitute work or tasks for animal. As such, the following two individually trained to do work or the purposes of this definition.”15 questions may be asked of a person perform tasks for the benefit of an There are two key points here: who brings a dog into a covered individual with a disability.12 The 1) The definition of service animal entity: “(1) Is the dog a service ani- original Title III regulations did includes the provision of assistance mal required because of a disabil- not contemplate restrictions on the to a person with a psychiatric, intel- ity? and (2) what work or task has types of animals that could be ser- lectual or other mental disability the dog been trained to perform?”18 vice animals under the ADA and and 2) the provision of emotional If the answer to the first question left open the possibility that any support, safety or comfort by a dog is affirmative and the answer to animal could be used as a service is not “work or tasks” for pur- the second question indicates the animal. Even still, the ADA in any poses of meeting the definition of animal has been trained to per- iteration, has only ever recognized a service animal. Under the ADA, form work or tasks, the animal “service animals,” as opposed to in order for a person with a mental must be permitted to remain in other types of supportive ani- impairment to legitimately pos- most instances, except for where mals, such as “emotional support sess and use a service animal, the the animal is not in the handler’s animals,” “companion animals” or animal must be individually trained control or is not housebroken.19 “assistance animals,” which are all to do work or perform tasks to the ADA regulations specifically state terms that have found their way individual’s benefit, including the that individuals are not required into common parlance. work or task of “preventing or inter- to produce documentation of the Importantly, the ADA rupting impulsive or destructive animal’s training, such as certifica- Amendments Act of 2008 changed behaviors.”16 The bottom line is that tions.20 Therefore individuals who the definition of service animal to while emotional support animals have paid a company to produce a remove reference to any animal are not service animals, a service certification have paid for a service being a service animal and limited animal may be trained to perform that is not actually required by the the definition to dogs. In pertinent work or tasks to benefit a person regulatory framework of the ADA.

14 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL The bottom line is that while emotional support animals are not service animals, a service animal may be trained to perform work or tasks to benefit a person with a mental impairment, just as a service animal can be trained to perform work or tasks to benefit a person with a physical impairment.

In summary, the ADA indicates ADA includes protections against four or more single family rental that a dog is the only type of retaliation and coercion for indi- dwellings,28 private multifamily animal that can be classified as a viduals attempting to exercise dwellings, residential real estate service animal, though in some their rights under the act.23 This transactions and advertising.29 The cases, a miniature horse may be a is an important consideration in act protects individuals engaged in service animal.21 Because no other any attempt to impose additional fair housing activities from intim- animals may be service animals requirements to the process idation, coercion and retaliation.30 under the current iteration of the beyond the specifications of The FHA also includes minimum ADA, only a dog (or miniature the law and regulations. physical accessibility standards horse) is legally allowed to remain for new construction of covered with its handler in the public SERVICE ANIMALS AND multifamily dwellings31 with a date spaces covered by the ADA. An SUPPORT ANIMALS UNDER of first occupancy after March 13, entity is within its legal rights to THE FAIR HOUSING ACT 1991.32 Thus, the act reaches nearly ask for any other type of animal Another major federal civil all rental housing and most res- to be removed from the prem- rights law that protects people idential real estate transactions. ises, because any other animal with disabilities from discrimi- Additionally, courts have found is not legally a service animal. nation is the federal Fair Housing that shelters and other types of However, although the 2008 ADA Act of 1968 (FHA),24 adminis- transitional housing may be con- Amendments tightened the defi- tratively enforced by the U.S. sidered dwellings subject to the nition of service animal under the Department of Housing and Urban Fair Housing Act.33 act, the general emphasis on lim- Development.25 The FHA protects Regarding people with dis- ited inquiries for service animals individuals from discrimination abilities, the FHA’s definition of remains. In 2016, the Department on the basis of race, color, sex, disability is identical to the ADA’s of Justice provided a reminder national origin, familial status, definition.34 Likewise, it requires that “Congress enacted the ADA religion and disability.26 Disability housing providers to provide Amendments Act to restore the was added as a protected class by reasonable accommodations to understanding that the definition the Fair Housing Amendments individuals with disabilities who of ‘disability’ shall be broadly Act of 1988.27 In pertinent part, the request such accommodations,35 construed and applied without Fair Housing Act applies to private including requests for service and extensive analysis.”22 As well, the owners engaged in the rental of support animals. This requirement

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 15 extends to applicants to real estate approach.38 Therefore, in order for Additionally, for the first time, transactions, including buying, an individual with a disability to HUD’s new guidance indicates selling and renting, as well as res- have and use an emotional sup- the housing provider may evalu- idents and any person associated port or support animal in housing, ate the type of animal requested with an applicant or resident, such the individual, or a person on and creates two categories of as a guest or caregiver.36 their behalf (such as a parent or animals: 1) Animals Commonly In most significant contrast to caregiver), must make a verbal or Kept in Households and 2) Unique the ADA, the Fair Housing Act’s written request for the animal, the Animals.44 Where the requested allowance of animals for people housing provider must consider the animal is an animal commonly with disabilities is not limited request, and the housing provider kept in households, such as a dog, to service animals. Instead, the must respond to the request within cat, bird, rodent, fish, turtle or FHA allows for emotional support a reasonable timeframe,39 “gener- “other small domesticated animal animals and other types of animals ally within 10 days.”40 In evaluating traditionally kept in the home for under the general umbrella term a request, housing providers are pleasure rather than for commer- of “support animal” or “assistance entitled to a minimum amount of cial purposes,”45 and the person animal.” Additionally, where the information to determine whether has shown a disability-related ADA limits service animals to the individual is a person with a need for the animal, the housing dogs in most cases, the FHA does disability and whether the individ- provider must approve the request not definitionally restrict support ual with a disability has a disability- for the animal.46 However, where animals to dogs, and it has never related need for the animal.41 In the animal is a unique animal, the been interpreted by the agency contrast to the ADA’s treatment of guidance indicates the individ- or the courts to restrict the types service animals, a housing provider ual requesting the animal should of animals that may be consid- ered emotional support animals or support animals. However, in a new guidance document pub- lished Jan. 28, 2020, FHEO Notice 2020-01, “Assessing a Person’s Request to Have an Animal under the Fair Housing Act,” the U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity (HUD) established certain tests for determining whether an individ- ual’s supportive animal must be allowed as a reasonable accommo- dation in housing. FHEO Notice 2020-01 indicates the analysis should begin with a determination of whether the ani- mal is a service animal under the ADA. 37 If the animal is a service may request supporting documen- provide additional documentation animal under the ADA, it must be tation from an individual request- showing the disability-related permitted in housing. However, if ing to keep an emotional support therapeutic need for the specific, the animal is not a service ani- or other supportive animal in hous- unique animal.47 Some examples mal, the analysis must evaluate ing under the FHA.42 This support- include specific situations where whether the animal “work[s], per- ing documentation may come from “the animal is individually trained form[s] tasks, provide[s] assistance, a medical or other provider who is to do work or perform tasks that and/or provide[s] therapeutic emo- familiar with the person, the dis- cannot be performed by a dog,” a tional support for individuals with ability and the person’s disability- health care professional indicates disabilities” under the traditional related need for the animal.43 the person has allergies to dogs or FHA reasonable accommodations that the person’s symptoms would

16 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL “significantly increase” without the the Department of Transportation Furthermore, the guidance animal, or the individual indicates (DOT).55 The definition of an indi- indicates airlines should not place the animal will be kept outside at a vidual with a disability under the categorical limitations on the house with a fenced enclosure.48 If Air Carrier Access Act is substan- number of service animals an an individual showing of the need tially similar to the ADA and FHA individual may possess; impose for the unique animal is made, the definition.56 However, currently the weight restrictions except to factor housing provider should permit ACAA maintains its own unique whether the animal could be trans- the unique animal.49 definition of service animal, ported in the aircraft cabin; impose Importantly, not only is the rea- which differs from the definition age restrictions on animals, noting sonable accommodation approval of service animal under the ADA. that enforcement actions will likely pertinent to allowing the animal Specifically, the Air Carrier Access not be pursued in the case of very in housing, it also removes the Act defines a service animal as young animals; and flight length animal from consideration as a “any animal that is individually restrictions, except for questions pet; thus, pet fees, pet deposits, pet trained or able to provide assis- about whether and how the ani- weight restrictions and pet breed tance to a person with a disability; mal will relieve itself in a way that restrictions do not apply, regardless or any animal that assists persons does not cause a sanitation issue on of whether the animal is a service with disabilities by providing emo- flights over eight hours.63 animal or other supportive ani- tional support.”57 Additionally, in However, the above require- mal.50 However, the individual is contrast to the ADA, but similar to ments and definitions under the required to maintain control of the the FHA, the ACAA allows airline ACAA may change substantially – animal, as well as feed, maintain carriers to request documentation and soon. On Feb. 5, 2020, the DOT and provide veterinary care for on letterhead from a licensed men- published a “Notice of Proposed the animal, with or without the tal health professional establishing Rulemaking on Travel by Air with assistance of family members or that the individual is a person with Service Animals.”64 The proposed caregivers.51 As with all other rea- a mental impairment and has a rule cites numerous complaints sonable accommodation requests disability-related need for an emo- about service animals, inconsistent made under the FHA, the housing tional support animal in evaluating federal definitions of service ani- provider may deny a request if the a request for an emotional support mals, issues with unique service specific request would result in a animal.58 Similar to the other laws, animals, misbehaving service fundamental alteration of the hous- the ACAA requires the handler to animals and pets on aircrafts ing provider’s program; approval maintain control of the animal.59 among other justifications for would result in an undue financial Notably, on Aug. 8, 2019, the the proposed rulemaking.65 In a and administrative burden; or the DOT released clarifying guidance sweeping change, DOT proposes animal would pose a direct threat to airlines regarding enforcement to align the definition of service to the health and safety of others.52 of the service animal provisions animal under the ACAA with the The HUD guidance reiterates of the ACAA.60 The Department of definition of service animal under longstanding policy that the direct Transportation notes that compli- the ADA. If DOT adopts these threat defense can only be used to ance with this guidance is volun- changes, the ACAA will define deny a request for an animal where tary on the part of airlines, which service animals to include only the housing provider has objective may lead to implementation of dogs.66 Additionally, the ACAA credible information about the individual airline standards, while will explicitly exclude emotional behavior of the specific animal in the underlying ACAA continues to support animals, comfort animals, question, and it cannot be based on require uniform compliance.61 The companionship animals, and ser- subjective feelings or stereotypes guidance indicates the DOT will vice animals in training from its about dangerous breeds.53 pursue enforcement action where definition of service animal.67 airlines categorically exclude dogs, While the regulations have not AIR CARRIER ACCESS ACT cats and miniature horses from yet changed, the Department of The Air Carrier Access Act airlines and may pursue enforce- Transportation has signaled that (ACAA) is a federal law that ment action for categorical exclu- more stringent requirements are specifically applies to accessibility sion of other types of animals, very likely forthcoming. and nondiscrimination for people except for “snakes, other reptiles, with disabilities in air travel54 and ferrets, rodents, and spiders.”62 is administratively enforced by

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 17 CONCLUSION technology to be accessible and usable by people of the Department of Housing and Urban This article attempts to unravel with disabilities in federal programs). Development and The Department of Justice: 5. See Arlene Mayerson, The History of The Reasonable Accommodations under the Fair the confusing web of laws concern- Americans with Disabilities Act: A Movement Housing Act (2004). ing service and assistance animals; Perspective, Disability Rights Education and 40. U.S. Dept. of Housing and Urban Defense Fund, 1992, https://dredf.org/about-us/ Development, Office of Fair Housing and Equal however, each situation remains publications/the-history-of-the-ada/. Opportunity, FHEO 2020-01, Assessing a Person’s unique. There is no one-size-fits-all 6. 28 C.F.R §36.105 (2011). Request to Have an Animal under the Fair Housing 7. 42 U.S.C. §12101 (2008). Act 13 (2020). approach, and the evaluation of any 8. 42 U.S.C. §12131 (2008). 41. Id. at 9-11. request requires at least a minimal 9. 42 U.S.C. §12182 (2008). 42. Id. 10. 28 C.F.R §36.104 (2016). 43. Id. amount of legal analysis. However, 11. Department of Justice, Civil Rights 44. Id. at 12. understanding and following Division, Title II Regulations Supplementary 45. Id. Information, March 15, 2011, www.ada.gov/ 46. Id. at 12-13. the specific tests and procedures regs2010/titleII_2010/titleII_2010_regulations.htm. 47. Id. outlined in federal law, regulations 12. 28 C.F.R §36.104 (1991) (emphasis added). 48. Id. at 13. 13. 28 C.F.R. §36.104 (2011). 49. Id. and agency guidance will help 14. 28 C.F.R. §36.136(i) (2011). 50. Id. at 14. resolve disputes before they arise. 15. Id. 51. Id. 16. Id. 52. Id. at 13. The bottom line is this: While the 17. 42 U.S.C. §12182(b)(ii)(A)(ii) (2008). 53. Id. at 13-14. ADA applies to most situations in 18. 28 C.F.R. §35.136(f) (2011) (state and local 54. 49 U.S.C. §41705 (2003). governments) and 28 C.F.R. §36.302(c)(6) (2011) 55. 49 U.S.C. §41705(c)(1) (2003). public life, it does not always apply, (public accommodations). 56. 14 C.F.R. §382 (2013). or it may apply in conjunction with 19. 28 C.F.R. §35.136(b) (2011) (state and local 57. See 14 C.F.R. 382.117(i) and Guidance governments) and 28 C.F.R. §36.302(c)(2) (2011) Concerning Service Animals, 73 FR 27614, 27659 another law. Therefore, an import- (public accommodations). (May 13, 2008). ant first consideration when eval- 20. 28 C.F.R. §35.136(f) (2011) (state and local 58. 14 C.F.R. §382.117(e) (2013). governments) and 28 C.F.R. §36.302(c)(6) (2011) 59. U.S. Department of Transportation, Office uating service and support animal (public accommodations). of the Secretary, Guidance on Nondiscrimination requests is to always determine 21. 28 C.F.R. §35.136(i) (2011) (state and local on the Basis of Disability in Air Travel, 84 Fed. which laws and agency guidance governments) and 28 C.F.R. §36.302(c)(9) (2011) Reg. 43480 (Aug. 21, 2019). (public accommodations). 60. Id. are applicable to the setting. While 22. Department of Justice, Civil Rights 61. Id. at 43486. recent agency guidance and Division, Amendment of Americans with 62. Id. Disabilities Act Title II and Title III Regulations 63. Id. proposed rulemaking indicates a to Implement ADA Amendments Act of 2008, 64. 85 Fed. Reg. 6448 (2020). more consistent approach is on the Summary, 28 CFR §§35-36 (Oct. 11, 2016). 65. Id. 23. 28 C.F.R. §36.206 (2011) and 28 CFR 66. Id. horizon, the current landscape of §35.134 (2011). 67. Id. service and support animal guid- 24. 42 U.S.C. §3601 (1968, as amended 1974, and 1988). ance is not so simple. 25. 42 U.S.C. §3608 (1988). 26. 42 U.S.C. §§3604-3606 (1988). 27. Fair Housing Amendments Act, PL 100- 430, Sept. 13, 1988, 102 STAT. 636. ABOUT THE AUTHOR 28. 42 U.S.C. §3603(b) (1988). 29. 42 U.S.C. §§3604-3606 (1988). Amy Gioletti works for a federal 30. 42 U.S.C. §3617 (1988). agency in Oklahoma City. She has 31. 24 C.F.R. 100.201 (2008) (defining “covered multifamily dwellings” as “buildings primarily worked in civil rights and consisting of 4 or more dwelling units if such disability law since graduating from buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of the TU College of Law in May 2011. 4 or more dwelling units”). 32. 42 U.S.C. §3604(f)(3)(C) (1988). 33. See, e.g., Hunter v. The District of ENDNOTES Columbia (D.D.C.) (2013); United States v. City 1. Michael Ollove, “Several States Crack Rescue Mission (W.D. Pa.) (2014). See also, Renee Down ‘Fake’ Service Animals,” USA TODAY, Williams, “Shelters and the Definition of ‘Dwelling’ Oct. 29, 2017, www.usatoday.com/story/ under the Fair Housing Act,” 43 Hous. L. Bull. news/2017/10/29/several-states-crack-down- 225 (Nov. 2013) (available at www.nhlp.org/ fake-service-animals/807676001/. wp-content/uploads/Shelters-and-the-Definition- 2. Residential Landlord and Tenant Act, Okla. of-Dwelling-43-Hous.-L.-Bull.-225-230-31-Nov- Stat. tit. 41, §§113.2C-D (2018). Dec-2013.pdf). 3. Robin Young and Serena McMahon, 34. 42 U.S.C. §3602(h) (1988). “Scam ‘Service Dog’ Industry Thrives on 35. 42 U.S.C. §3604(f)(3)(B) (1988). Lack of Federal Regulations,” WBUR, May 23, 36. 42 U.S.C. §3604(f)(2) (1988). 2019, www.wbur.org/hereandnow/2019/05/23/ 37. U.S. Dept. of Housing and Urban fake-service-dog-registration. Development, Office of Fair Housing and Equal 4. Architectural Barriers Act, 42 U.S.C. Opportunity, FHEO 2020-01, Assessing a Person’s §§4151 (1968) (required accessible design and Request to Have an Animal under the Fair Housing construction of federally funded buildings) and Act 6-7 (2020). Rehabilitation Act, 29 U.S.C. 701 (1973) (requires 38. Id. at 7-8 (2020). affirmative action and nondiscrimination in federal 39. Id. at 7-13 (2020). See also U.S. Dept. of employment related to the hiring of people with Justice, Civil Rights Division and U.S. Dept. of disabilities, nondiscrimination in federally funded Housing and Urban Development, Office of Fair programs and activities and requires electronic Housing and Equal Opportunity, Joint Statement

18 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

Mental Health Finding the Keys to Unlock Behavioral Health Records By Robin Moore

AVE YOU EVER SUBMITTED A SUBPOENA to an alcohol and drug counselor, a Hlicensed professional counselor or a psychiatric facility and received a form letter denying you the records you requested? Perhaps you’ve submitted what you thought was a properly executed consent for release of medical records only to receive a similar denial?

When it comes to medical records, conditions do not receive the treat- 45 C.F.R. Parts 160, 162 and 164. our analysis often begins and ment they need, in large part due The Privacy Rule and Part 2 are ends with the Health Insurance to stigma.1 When a person receives two separate, distinct and some- Portability and Accountability Act treatment, documentation of the ill- times conflicting bodies of law. (HIPAA). However, we often fail to ness can not only deter initial diag- Part 2 protects the privacy of realize that other federal and state nosis but also continued treatment substance use disorder records laws have been adopted in addi- compliance. To see the stigma it and applies to any individual or tion to (and sometimes conflicting perpetuates, one only needs to look program that is federally assisted with) HIPAA or that different and/ at one of the most popular holidays and holds itself out as providing or additional procedural steps are in America: Halloween. Images alcohol or drug abuse diagnosis, required to obtain mental health of haunted asylums or terms like treatment or referral for treat- and substance abuse records. “psycho” are prevalent during this ment.2 Part 2 originated in the While HIPAA is a good place to holiday. These images aren’t just 1970s as an effort to encourage start for unlocking the disclosure limited to Halloween. This past sea- individuals to enter and stay in of behavioral health and substance son, I attended a highly competitive substance use disorder treatment.3 use disorder information, one band competition. One Oklahoma When HIPAA was enacted in must also become familiar with school’s performance was titled 1996, the Privacy Rule covered 42 C.F.R. Part 2, 43A O.S. §1-109 Insanity, where the students wore all medical records. The main and O.A.C. 450:15-3-20.1. straitjackets, mimicked being phys- objective of HIPAA was to pro- ically restrained and rolled their tect health insurance coverage for WHY ARE BEHAVIORAL heads around. Stigma is one of the individuals when they changed HEALTH AND SUBSTANCE largest barriers to treatment in the jobs. A related objective was to USE DISORDER RECORDS U.S., including in Oklahoma. streamline healthcare transactions TREATED DIFFERENTLY? between providers and insurance Hypertension may not affect A BRIEF HISTORY OF companies, and therefore, privacy one’s employment, their right FEDERAL REGULATION rules were also implemented to to own a firearm or visitation OF MENTAL HEALTH AND protect patient health records. with their children; however, SUBSTANCE USE RECORDS When the Privacy Rule was first diagnosis and treatment of bipo- Section 42 C.F.R. Part 2 (Part 2) issued, the Department of Health lar disorder may affect all these refers to 42 U.S.C. §290dd and its and Human Services (HHS) deter- areas. Approximately one in five implementing regulations. The mined that HIPAA and Part 2 do Americans with mental health HIPAA Privacy Rule is found in not conflict in most situations.4 As

20 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL electronic medical records (EMRs) became more prevalent, the Health Information Technology (HITECH) Act was enacted in 2009 to promote the growth of EMRs and set forth standards of how medical records are shared and provided penalties for unauthorized disclosures. The HITECH Act did not change the Privacy Rule as far as the circum- stances of when and under what circumstances disclosure is allowed, such as consent, disclosures during medical emergencies and disclo- sures for abuse reporting.5

SUBPOENAS ARE NOT SUFFICIENT TO OBTAIN MENTAL HEALTH AND SUBSTANCE USE RECORDS One common area where the bodies of law conflict is whether a subpoena is sufficient to disclose records that would otherwise be protected. Although it is frustrat- ing being denied access to records after sending a subpoena, the added protection is necessary to maintain the sensitive nature of behavioral health and substance use disorder records. The release of substance use disorder records pursuant to Part 2 is more stringent than HIPAA when considering if records can be disclosed pursu- ant to a subpoena. While HIPAA allows the disclosure of medical records, which includes behav- ioral health records pursuant to a

THE OKLAHOMA BAR JOURNAL subpoena,6 Part 2 provides that a Oklahoma has adopted the 1) Other ways of obtaining subpoena is not sufficient to compel Part 2 subpoena rule for all the information are not substance use disorder records.7 behavioral health records.10 available or would not be Thus, if someone requesting records Section 43A O.S. §1-109(D) states: effective; and only considered HIPAA in their 2) The public interest and need analysis of when disclosure is Except as otherwise permitted, for the disclosure outweigh permitted, their conclusion would mental health and alcohol or the potential injury to the not be correct if the records they substance abuse treatment infor- patient, the physician- are requesting contain information mation may not be disclosed patient relationship and relating to a substance use disorder. without valid patient autho- the treatment services.15 An additional twist that further rization or a valid court order complicates the pursuit of behav- issued by a court of competent Although notice is only required ioral health or substance use dis- jurisdiction. For purposes of to be given to the provider in crimi- order records are requirements for this section, a subpoena by itself nal cases, Part 2 has more extensive obtaining such records under state is not sufficient to authorize criteria for entry of an order to law. HIPAA is the federal “floor” disclosure of mental health and disclose records in a criminal case: for privacy protections; it allows alcohol or substance abuse treat- states to have laws that are contrary ment information.11 1) The crime involved is to the Privacy Rule in certain cir- extremely serious, such as cumstances. 8 HIPAA provides that WHAT ARE THE one that causes or directly state confidentiality laws will con- REQUIREMENTS FOR threatens loss of life or seri- trol if they are more restrictive or A VALID COURT ORDER? ous bodily injury, including protective than HIPAA. Section 45 If a subpoena is insufficient to homicide, rape, kidnapping, C.F.R. Part 160, Subpart B contains obtain mental health and sub- armed robbery, assault with the requirements for state law pre- stance use disorder records and a a deadly weapon and child emption and provides four ways request has not been authorized by abuse and neglect. state law can preempt the Privacy a patient, a court order is neces- 2) There is a reasonable like- Rule. Section 45 C.F.R. §106.203(b) sary to obtain these records. What lihood that the records will is the applicable authority for state are the required elements for the disclose information of sub- law preemption: order? Section 43A O.S. §1-109 does stantial value in the investi- not specify the requirements for gation or prosecution. §160.203 General rule and excep- the order. The statute requires a 3) Other ways of obtaining the tions. A standard, requirement “valid court order issued by a information are not available or implementation specification court of competent jurisdiction.”12 or would not be effective. adopted under this subchapter HIPAA does not have any stan- 4) The potential injury to the that is contrary to a provision dards or criteria for a court order, patient, to the physician- of State law preempts the pro- but Part 2 is more specific. For civil patient relationship and to vision of State law. This general cases, Part 2 requires a requesting the ability of the Part 2 pro- rule applies, except if one or party to provide the patient whose gram to provide services to more of the following conditions records are sought and the pro- other patients is outweighed is met: vider both notice and an oppor- by the public interest and tunity to respond.13 If the order is the need for the disclosure. *** sought for release of the records for 5) If the applicant is a law purposes of investigating or prose- enforcement agency or b) The provision of State law cuting a patient, only the program official that: relates to the privacy of individ- or provider needs to be notified.14 a) The person holding ually identifiable health infor- The application and hearing must the records has been mation and is more stringent also be done in a manner that does afforded the opportu- than a standard, requirement, not disclose patient identifying nity to be represented or implementation specification information. Part 2 sets forth the by independent counsel; adopted under subpart E of following criteria for entry of an and part 164 of this subchapter.9 order in a civil proceeding: b) Any person holding the records who is an entity within federal, state or

22 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL CHANGES ARE ON THE HORIZON Subpoenas and consent require- ments are not the only differences in the bodies of law that govern access to mental health and substance use disorder records, but they are the most commonly encountered. Federal regulations are not set in stone, and change is on the horizon. SAMHSA promulgated a series of rule changes in 2016 to Part 2. The first set of changes was effective Feb. 17, 2017, and the second set of changes was effective Feb. 2, 2018. SAMHSA proposed additional rule changes in 2019, but those have not been promulgated. In a response to public comments, SAMHSA stated local government has all the information they expected. these proposed revisions “better in fact been represented An authorization for release of reflect changes in the health care by counsel independent records (and depending on the system, such as the increasing use of the applicant.16 language in your order) is not suf- of electronic health records and ficient for the release of “psycho- drive toward greater integration of Furthermore, the content of the therapy notes” under the Privacy physical and behavioral health care. order must limit the disclosure of Rule.18 “Psychotherapy notes” are Despite efforts to enhance integra- records to only the purpose speci- not progress notes. Progress notes tion, SAMHSA remains committed fied, limit the release of records to are typically kept with medical to protecting the confidentiality of only those “whose need for infor- records and are used by the entire patient records.”21 mation is the basis for the order” treatment team in accessing an In 2019, lawmakers in both the and “include other measures as individual’s responsiveness to House and Senate reintroduced are necessary to limit disclosure treatment. “Psychotherapy notes” legislation to align Part 2 with for the protection of the patient, are required to be kept separate HIPAA. Identical bills have been the physician-patient relationship from the individual’s medical and introduced in previous sessions but and the treatment services.”17 billing records and are for the have subsequently failed to pass Often, this is accomplished by therapist’s use. Records may also due to opposition from privacy sealing the application and order be redacted to protect the patient advocacy groups and a handful and holding the hearing in cham- or another person if released.19 of congressmen. Proponents for bers or limiting courtroom access Prior to releasing the records, the changing Part 2 believe that mak- to only those parties necessary to treating physician may conduct a ing these records easier to share the issue of disclosure of records. review to determine if there is any would enhance the coordination of information that would “likely patient care across various settings. OBTAINING ‘PSYCHOTHERAPY cause substantial harm to the The name of the House version NOTES’ REQUIRES A individual or another person.”20 was “The Overdose Prevention SEPARATE AUTHORIZATION Therefore, obtaining these notes and Patient Safety Act.” In 2018, Taking into account HIPAA, requires the court order to spe- the effort to change Part 2 fizzled Part 2 and 43A O.S. §1-109, a party cifically provide for the release of out when the American Medical presents a properly executed court psychotherapy notes or a separate Association warned congressional order and/or authorization for consent form authorizing the leadership such a change would release of behavioral health or sub- release of psychotherapy notes. deter patients from seeking treat- stance use disorder records. Upon ment. However, the American receiving the records, the party Society of Addiction Medicine realizes portions of the records are applauded the introduction of the redacted, or they did not receive legislation and other proponents

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 23 believe keeping substance use take effect until March 2021, and available at www.hhs.gov/sites/default/files/ disorder records separate from the rulemaking will further define the ocr/privacy/hipaa/administrative/privacyrule/ prdecember2000all8parts.pdf. rest of a patient’s medical record scope of confidentiality in America. 5. The HITECH Act also increased penalties denies them a fully informed diag- for breaches. 6. 45 C.F.R. §164.512(f)(1). nosis and treatment, increases the 7. 42 C.F.R. §2.61(b). chance of unintended prescribing 8. Does HIPAA Privacy Rules Preempt ABOUT THE AUTHOR State Laws? www.hhs.gov/sites/default/files/ errors and places patients at risk Robin Moore serves as assistant adminsimpregtext.pdf. Accessed on April 16, 2020. for dangerous drug interaction and general counsel with Oklahoma 9. 45 C.F.R §160.203. 10. 43A O.S. §1-109. overutilization. Mental Health and Substance 11. Id. COVID-19 has significantly Abuse Services. She is a member 12. 43A O.S. §1-109(D). 13. 42 C.F.R. §2.64. changed the way behavioral health of the Juvenile Competency 14. 42 C.F.R. §2.65. and substance use disorder ser- Evaluation Professional Committee 15. 42 C.F.R. §2.64(d). 16. 42 C.F.R. §2.65(d). vices are rendered. To effectively through OCCY and is active with 17. 42 C.F.R. §2.64(e) and §2.65(e). treat Americans without disruption the Legal Division of the National 18. 45 C.F.R. §164.524 and 43A O.S. §1-109(B)(1). 19. 45 C.F.R. §164.524 and 43A O.S. §1-109(B) in services, Congress included Association of State Mental Health (4) and (7). previously proposed language Program Directors. Ms. Moore 20. 45 C.F.R. §164.524(a)(3)(ii). 21. 83 F.R. 249. to bring Part 2 more in line with received her J.D. from the OU 22. Adam J. Hepworth and Jennifer J. HIPAA in the CARES Act. This College of Law in 1998. Hennessy, “COVID-19: CARES Act Overhauls Federal Substance Use Disorder Privacy Law,” legislation also incorporates parts Coronavirus Resource Center, Health Care Law of HIPAA with Part 2, such as ENDNOTES Today, March 26, 2020, available at www.foley. breach notification, civil and crim- 1. Allison Abrams, “The Catastrophic Effects com/en/insights/publications/2020/03/covid19- of Mental Health Stigma.” Psychology Today, cares-act-federal-substance-privacy-law. inal penalties, notice of privacy May 25, 2017. practices and accounting of disclo- 2. 42 C.F.R. §2.11. 22 3. The Drug Abuse Office and Treatment Act sures. Although the “to whom” of 1972. requirement has changed effective 4. Standards for Privacy of Individually Identifiable Health Information (HIPAA Privacy Aug. 17, 2020, the subpoena rule Rule), 65 Fed. Reg. 82480-83 (Dec. 28, 2000) has not. Some new changes do not (to be codified at 45 CFR Parts 160 and 164),

24 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

Civil Rights What’s Sex Got to Do With It? The Landmark Cases Before the Supreme Court That Broadened the Meaning of ‘Sex’ By Katherine Mazaheri and Hannah Lunsford

N JUNE 15, 2020, the Supreme on sexual orientation or gender sued Price Waterhouse based on OCourt of the United States identity claims under Title VII, gender discrimination in violation (SCOTUS) made a landmark deci- and many employment law advo- of Title VII. The sex stereotype sion changing the lives of many in cates brought cases for LGBTQ+ characteristics Hopkins allegedly the lesbian, gay, bisexual, trans- discrimination in the form of “sex possessed included using pro- gender and queer or questioning stereotyping.” In fact, “Only 22 fanity, she was overly aggressive, (LGBTQ+) community, making it states had individual protections and she was somewhat mascu- illegal for employers to discrimi- for sexual orientation and 21 had line. The court found that Price nate against them because of sexual them for gender identity.” 2 In this Waterhouse impermissibly based orientation or gender identity. This article, we will explore the history Hopkins’ employment decision on decision broadened the meaning of of discrimination laws regarding gender stereotypes and her inabil- “sex” within Title VII of the Civil gender/sex, the facts of the three ity to conform to gender-specific Rights Act of 1964 (Title VII).1 The cases heard before SCOTUS and expectations considered the norm. historic decision, Altitude Express v. how the justices arrived at their The lawyers in Bostock before the Zarda, was split 6-3, with Justice historic decision. Supreme Court used the decision Neil Gorsuch writing the majority of Price Waterhouse, that “discrimi- opinion. He was joined by Chief I AM WHO I AM: HISTORY OF nation against an employee on the Justice John Roberts Jr. and the SEX IN THE SUPREME COURT basis of sex stereotyping ... consti- court’s liberal wing – Justice Ruth The 1989 Supreme Court case tutes impermissible sex discrimi- Bader Ginsburg, Justice Stephen Price Waterhouse v. Hopkins3 laid the nation, in violation of Title VII”5 to Breyer, Justice Sonia Sotomayor foundation for the arguments that argue their cases when an effem- and Justice Elena Kagan. Justices were heard before the Supreme inate male or less than “feminine Brett Kavanaugh and Samuel Alito Court in Bostock. Price Waterhouse female do not conform to gender Jr. wrote separate dissents with defined “sex stereotyping,” as specific roles.” Justice Clarence Thomas joining discrimination that “is a person’s Alito’s dissent. nonconformity to social or other DON’T GO TAKING The three cases brought before expectations of that person’s gen- MY EQUALITY: THE SCOTUS were Bostock v. Clayton der.”4 Ann Hopkins, the plaintiff in LANDMARK TRIO County, Altitude Express v. Zarda, Price Waterhouse, was a senior man- The first two cases of the trio, and R.G. & G.R. Harris Funeral ager at Price Waterhouse. Although Bostock v. Clayton County6 and Homes, Inc. v. EEOC. These cases her office prepared a statement Altitude Express v. Zarda,7 were con- involved the sexual stereotyping of highlighting her character and solidated into one case in front of LGBTQ+ employees who claimed success, she was not considered the Supreme Court. Both involved they were fired because of their for partnership. After Hopkins’ the firing of two gay men from sexual identities. Prior to this deci- employers told her she was more their places of employment due sion, the federal government did likely to become partner if she to their sexual orientation. not recognize discrimination based acted more feminine, Hopkins

26 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL The petitioner in Zarda was a orientation discrimination. After performance evaluations and skydiving instructor who worked the ruling, the Equal Employment accolades. However, he was termi- for Altitude Express.8 Part of Mr. Opportunity Commission (EEOC) nated by Clayton County for “con- Zarda’s job was to participate in issued an opinion in a separate duct unbecoming of its employees” tandem dives with clients who case that said Title VII covers sex- after participating in a gay recre- were strapped in close proximity ual orientation under the “basis of ational softball league.15 Bostock’s to him for safety. To make female sex” language.11 Zarda appealed to claim of discrimination was further clients more comfortable during the 2nd Circuit Court of Appeals supported because he was the target tandem skydives, he would dis- after the district court declined of offensive comments regarding his close that he was a gay man. Zarda to reinstate his claim. The 2nd sexual orientation during the time argued that he was terminated Circuit upon rehearing vacated he worked at child welfare services. when a female client accused him the district court’s judgment After his termination, Mr. Bostock of inappropriately touching her regarding the Title VII claims held filed a charge with the EEOC, and and that he used his sexual orien- that Title VII does protect sexual three years later filed a lawsuit alleg- tation as an excuse to commit such orientation.12 The Supreme Court ing discrimination based on his sex- behavior.9 Zarda’s boss promptly granted a writ of certiorari from the ual orientation under Title VII. The fired him, claiming it was based appeal of Altitude Express.13 district court dismissed his lawsuit on her reference to him being gay. In Bostock, the petitioner was for failure to state a claim because Mr. Zarda brought suit against a gay man working at child wel- his claim was not supported under Altitude Express for violating Title fare services in Clayton County, Title VII. The 11th Circuit Court of VII when they terminated him Georgia, when he was fired due to Appeals affirmed the district court’s because of his sexual orientation.10 his sexual orientation.14 Mr. Bostock holding.16 The Supreme Court The district court found that Title had worked for 10 years at Clayton granted a writ of certiorari from VII does not protect against sexual County and received many positive the appeal of Bostock.

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 27 LET’S TALK ABOUT YOU must be met, including the critical come with a sex-specific policy.30 He AND THEM inquiry into whether men and claimed that Harris Homes fired Pamela S. Karlan, attorney for women are being treated differently Ms. Stephens not because she was Bostock and Zarda, argued that dis- because of their sex.24 Attorney a transgender woman, but because crimination based on sexual ori- Harris argued that the lower court she violated dress code, and the entation is discrimination based on in both Bostock and Altitude Express sex-specific dress policy does not sex, because under Title VII, Section replaced sex with sexual orientation violate Title VII. Mr. Bursch also 703(a), the adverse employment and adopted a rule of per se inclusion argued that adding transgender sta- action is based on plaintiffs Bostock giving Bostock and Zarda a free pass tus to Title VII protection is adding and Zarda’s failure to conform around the inquiry into whether men in a classification that Congress had to a particular expectation about and women are being treated differ- not intended to be in the statute.31 how men should behave; that they ently because of their sex.25 David D. Cole, attorney for should be attracted to only women.17 The final case of the trio, R.G. & Aimee Stephens, stated in oral The discrimination falls under Title G.R. Harris Funeral Homes, Inc. v. arguments that the term “sex” VII because of the nonconformity EEOC, involved Aimee Stephens, included sexual orientation with an expectation about how men former funeral director at R.G. & encompassing biological sex and should behave, and any attempt to G.R. Harris Funeral Homes, Inc.26 sex assigned. The claim before carve this discrimination out of the Ms. Stephens lived and presented the court was that Harris Homes act cannot be done with consis- as a man for most of her life; treated Ms. Stephens differently tency or integrity.18 Additionally, however, when she made her boss because of her sex assigned at Ms. Karlan argued that policies aware that she intended to transi- birth, and she was not terminated of denying employment to the tion to female, she was fired. After because of its sex-specific dress gay community amount to double filing a complaint with the EEOC code policy. Mr. Cole urged the discrimination.19 Double discrim- for sex discrimination, the EEOC court not to ask whether some- ination is discrimination against sued Harris Funeral Homes for thing discriminates when it refers men who do not conform to a male violating Title VII. The basis for to sex but whether it differentiates stereotype, and conversely would the Title VII claim was that Ms. in a way that injures. Burlington discriminate against women who Stephens was terminated on the Northern32 supported this argument do not conform to an expectation basis of being transgender and her stating that a rule can impose a sig- about female stereotypes.20 Double refusal to conform to sex-based nificant burden as to some people discrimination does not follow stereotypes.27 The district court and a trivial burden as to others.33 Title VII’s original intention, which granted summary judgment for Thus, a rule that is sex-specific can is to make sure that men are not the defendant, and Ms. Stephens affect anyone, because it discrimi- disadvantaged relative to women appealed this determination. nates against them, and a reason- and vice versa.21 The 6th Circuit Court of Appeals able person in their shoes would Jeffrey M. Harris, attorney reversed the holding that the ter- experience a significant harm.34 Mr. for Clayton County and Altitude mination of Stephens based on her Cole reflected on Price Waterhouse Express, argued that “sex and sex- transgender status constituted sex giving the powerful argument that ual orientation are independent and discrimination under Title VII.28 Ann Hopkins would lose her case distinct characteristics, and sexual Attorney for Harris Homes, were she transgender.35 The objec- orientation discrimination by itself John J. Bursch, focused his argu- tion to a transgender person is the does not constitute discrimination ment on the treatment of men and ultimate sex stereotype, because it because of sex under Title VII.”22 In women. He argued that sex and says that if a person is assigned at his arguments, Mr. Harris referred transgender status are indepen- birth a certain sex, that is how they to Oncale v. Sundowner Offshore dent concepts, and equal treat- must live their life, and that was Servs., Inc.23 claiming the case at ment of men and women does not the but-for cause of Ms. Stephens’ hand is a mirror image of Oncale, warrant treating men as women.29 termination. Ultimately, Mr. where the Supreme Court reversed Title VII says that sex-based dif- Cole did not argue Title VII to be a 5th Circuit decision that held that ferentiation is not the same as sex updated or to redefine sex within same-sex harassment claims are cat- discrimination. Mr. Bursch then it, he simply stated that Harris egorically excluded from Title VII. used what he called a “parade of Homes fired Ms. Stephens because The Supreme Court held in Oncale horribles” style argument, discuss- she was transgender, and that is that all requirements of Title VII ing the negative results that would sex discrimination.36

28 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL LET’S TALK ABOUT SEX into, “What did ‘discriminate’ an employer to intentionally treat In the landmark ruling, Justice mean in 1964?”44 The court states individual employees differently Gorsuch began his opinion deter- that “discrimination” means because of their sex.”49 Illustrating mining the meaning of “sex” in “intentionally treat[ing] a per- with a hypothetical, the court Title VII. To determine the defini- son worse because of” his or her expanded on the point. In this tion of “sex” as used in Title VII, sex.45 The court disagrees with hypothetical, an employer has two the court interpreted it according the defendants that a policy of not employees who are identical in to the ordinary public meaning at hiring based on sexual orientation every sense including attraction the time of enactment.37 The defen- does not discriminate because it to men; however, one employee is dants argued that in 1964, the Title affects both genders equally. Title male and the other is female. If the VII drafters could not have antic- VII does not apply to both genders male employee is fired based on ipated that “sex” would include as a whole, and it explicitly states this, then the employer has dis- sexual orientation and sexual that employers are prohibited criminated against him due to his identit y, 38 and very few people in against certain actions against sex. It does not matter that the male 1964 would anticipate such appli- individuals, so the employers’ employee was fired for other rea- cation.39 However, the court con- argument does not stand.46 sons as well, because so long as sex cluded “The limits of the drafters’ After the Supreme Court was one factor of his termination, imagination supply no reason to established the court’s interpre- due to the but-for test, the employer ignore the law’s demands. When tation on sex, they turn to appli- has violated Title VII. Therefore, the express terms of a statute give cation of the meaning. The court the defendant employer’s argument us one answer and extratextual finds, “An employer violates Title that firing based on sexual orien- considerations suggest another, VII when it intentionally fires an tation involves two factors, sex and it is no contest. Only the written individual employee based in sexual orientation, does not stand word is law ... .”40 Although there part on sex.”47 The court discusses because sex is a factor and that is was a dissonance in the parties’ whether sexual orientation and enough to satisfy the but-for test.50 definition of “sex,” the court sexual identity fall under “sex,” Further, the employer’s argument that discrimination based on sexual orientation or identity is not intent to discriminate based on sex. The court rejects the employer’s position by analyzing the employer’s reli- The court discusses whether sexual orientation ance on sex in the creation of the workplace policy. Despite policy and sexual identity fall under “sex,” using being titled in a nondiscriminatory manner, an employer’s policy may the previously established definition of sex, still discriminate based on sex.51 Specifically “[a]n employer who indicating biological features. discriminates on these grounds inescapably intends to rely on sex in its decision making.”52 Despite an employer’s intention, discrimi- nation based on sexual orientation interpreted the meaning of “sex” using the previously established or identity is sex-based discrimina- as the biological distinction definition of sex, indicating biolog- tion prohibited by Title VII. between male and female.41 ical features. The court stated, “It is Although the court agrees The court explained the inquiry impossible to discriminate against with the employers that sexual into the definition of sex is only a person for being homosexual or orientation and sexual identity the beginning, and the real ques- transgender without discriminat- are separate concepts from “sex.” tion is what Title VII says about ing against that individual based Discrimination based on sexual sex.42 The court stated Title VII on sex.”48 “[H]omosexuality and orientation or sexual identity prohibits certain actions based on transgender status are inextricably cannot happen without first dis- sex created but-for causation.43 The bound up with sex... [T]o discrim- criminating by sex.53 It is the same but-for test then led to the inquiry inate on these grounds requires with sexual harassment; sexual

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 29 harassment is separate from “sex,” orientation without knowing the Despite this major victory for the but it cannot happen without dis- sex of the employee.61 LGBTQ+ community, the court’s criminating by sex and therefore Additionally, he argues that opinion prohibiting discrimina- falls under discrimination prohib- because neither sexual orientation tion based on sexual orientation ited by Title VII. The court stated, nor gender identity are covered or gender identity seems to be “When Congress chooses not to by Title VII, employers are free to limited by religious freedom stat- include any exceptions to a broad decide whether sexual orientation utes. The court stated, “This Court rule, courts apply the broad rule.”54 and gender identity are relevant has also recognized that the First Thus, discrimination based on to them.62 Amendment can bar the applica- “sex” includes the broad range Justice Kavanaugh’s dissent tion of employment discrimination of orientation, sexual identity or also reflects the belief that the laws ‘to claims concerning the gender. The court rejected the court acted impermissibly taking employment relationship between defendant employer’s argument the responsibility of Congress. He a religious institution and its that potential bills could have argues that the court updated Title ministers.’”69 The court also stated been passed to amend Title VII VII by taking the literal meaning of the Religious Freedom Restoration to include sexual orientation and “sex” as opposed to the ordinary Act of 1993 acts “as a kind of super sexual identity. 55 Justice Gorsuch meaning. statute ... [and] it might supersede continued, saying it would be Justice Kavanaugh stated that the Title VII’s commands in appropriate “particularly dangerous” to base an court must use the ordinary mean- cases.”70 However, the court stated interpretation on the speculation ing rather than the literal meaning that how they interacted would about why Congress had not yet for two main reasons: rule of law be a question for the future. As of adopted new legislation to address and democratic accountability.63 July 8, 2020, we can already see the discrimination based on sexual The citizens governed by the rule of court carving out exceptions to this orientation or gender identity. law must be able to understand it.64 ruling, particularly regarding reli- Also, following the ordinary mean- giously affiliated employers.71 Some STICK TO THE SCRIPT: ing facilitates the accountability of in the LGBTQ+ community may THE DISSENTS the representatives elected by the consider this a setback upon such Justice Alito, joined by Justice citizens for the laws they pass.65 a monumental equal rights victory, Thomas, begins his dissent stat- Justice Kavanaugh then turns to but it is clear the opinion has limita- ing that the court participated in what he believes is the main issue, tions that remain to be litigated. an impermissible role. He states, “Does the ordinary meaning of Plaintiffs, employment law- “There is only one word for what [‘discrimination because of sex’] yers and the LGBTQ+ commu- the Court has done today: legislation.”56 encompass discrimination because nity know and understand these Justice Alito agrees with the of sexual orientation?”66 He ana- decisions will change their legal employers that because no amend- lyzes sources indicating ordinary rights drastically under federal ment has been made to Title VII, meaning, including common par- law. The Supreme Court decision “Discrimination because of ‘sex’ lance, common usage by Congress, in Obergefell v. Hodges in June 26, means what it always meant.”57 the practice of the Executive 2015, legalized same-sex marriage “This meant discrimination Branch, the laws in the states and in all 50 states and changed the because of genetic and anatomical the decisions of the Supreme Court. landscape for family law in the characteristics.”58 He stated that the These sources all indicate discrim- U.S. This is a step forward toward duty of the court is to interpret stat- ination based on sexual orientation equality for all, but the opinion utes as intended when drafted, and is not included in discrimination raises some questions as to poten- the court updated the term “sex” to based on sex.67 Justice Kavanaugh tial issues with religious freedom. follow current values and include states the plaintiffs needed to prove Time will tell what restricts this sexual orientation and sexual iden- that the literal meaning of sex landmark case in the future as we tity. 59 Justice Alito contends there is overrides ordinary meaning or that see challenges come before the no evidence the term was meant to discrimination because of sexual court. Until then, equality for all be interpreted in such a way when orientation is included in the ordi- is one step closer. Title VII was enacted.60 Justice nary meaning of discrimination Alito asserts the majority opin- because of sex, which common ion is in error because employers usage indicates is not the case.68 can discriminate based on sexual

30 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL ABOUT THE AUTHORS 17. Oral Argument, Oct. 8, 2019, 00:43, Bostock v. Clayton County, Oyez, www.oyez.org/ Katherine Mazaheri is the founder cases/2019/18-107 (last visited March 23, 2020). and managing attorney of Mazaheri 18. Id. at 1:05. 19. Id. at 2:10. Law Firm, an all-female team of 20. Id. at 2:13. attorneys who have gained a 21. Id. at 3:50. 22. Id. at 26:18. reputation for taking on cases that 23. Oncale v. Sundowner Offshore Servs., Inc, attack various social injustices 523 U.S. 75 (1998). 24. Id. Oral Argument, Oct. 8, 2019, at 26:33. and help families in crisis. She’s 25. Id. at 27:14. passionate about employment 26. No. 18-107. 27. R.G. & G.R. Harris Funeral Homes Inc. v. litigation and educating on legal Equal Employment Opportunity Commission, issues in online seminars regarding Oyez, www.oyez.org/cases/2019/18-107 (last visited March 23, 2020). COVID-19 and employment law, 28. Id. sexual harassment and other Title 29. Oral Argument, Oct. 8, 2019, 24:29, VII best practices. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Oyez, Hannah Lunsford is a recent www.oyez.org/cases/2019/18-107 (last visited graduate of the OU College of Law. March 23, 2020). 30. Id. at 25:12. She found a love of employment law 31. Id. at 32:03. while working at Mazaheri Law. She 32. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). looks forward to a career that allows 33. Oral Argument, Oct. 8, 2019, 5:34, her to help her community and strive R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Oyez, for integrity in everything she does. www.oyez.org/cases/2019/18-107 (last visited March 23, 2020). 34. Id. at 9:22. ENDNOTES 35. Id. at 16:42. 1. Pub. L. No. 88-352, 701,78 Stat. 241 36. Id. at 23:54. (codified as amended 42 U.S.C. §2000e (2020)). 37. Bostock v. Clayton Cty., Georgia, 17-1618, “It shall be an unlawful employment practice for 2020 WL 3146686, at *1 (U.S. June 15, 2020). an employer to fail or refuse to hire or to discharge 38. Id. at *3. any individual, or otherwise to discriminate against 39. Id. at *15. any individual with respect to his compensation, 40. Id. at *3. terms, conditions, or privileges of employment, 41. Id. at *4. because of such individual’s ... sex ... ” 42 U.S.C.S. 42. Id. § 2000e-2 (a)(1) (2020). 43. Id. 2. Anna North, “How the LGBTQ rights 44. Id. at *5. The Oklahoma District Attorneys cases before the Supreme Court affect all 45. Id. Council (DAC) is pleased to announce Americans,” VOX, (Oct. 8, 2019, at 10:10 46. 42 U.S.C.A. § 2000e-2(a)(1). that DAC has been designated by a.m.), www.vox.com/2019/10/8/20903088/ 47. Bostock, 2020 WL 3146686, at *6. the U.S. Department of Justice to supreme-court-lgbt-lgbtq-case-scotus-stephens. 48. Id. at *7. award and disburse loan repayment 3. Price Waterhouse v. Hopkins, 490 U.S. 228 49. Id. assistance through the John R. (1989). 50. Id. at *13. Justice (JRJ) Loan Repayment 4. Price Waterhouse v. Hopkins, 490 51. Id. at *7. Program. The State of Oklahoma U.S. 228 (1989), Justia (last visited March 23, 52. Id. has received a total of $34,312.00 2020), supreme.justia.com/cases/federal/ 53. Id. at *11. to be divided equally among eligible us/490/228/#tab-opinion-1957938. 54. Id. full-time public defenders and 5. Price Waterhouse v. Hopkins, 490 U.S. 228 55. Id. at *12. prosecutors (including tribal (1989), Justia (last visited March 23, 2020) 56. Id. at *18. government) who have outstanding supreme.justia.com/cases/federal/us/490/ 57. Id. at *19. qualifying federal student loans. 228/#:~:text=Discrimination%20against%20an%20 58. Id. employee%20on,Civil%20Rights%20Act%20of% 59. Id. Applications for new and renewal 201964. 60. Id. applicants are currently available 6. No. 17-1618. 61. Id. at *21. online. For more information about 7. No. 17-1623. 62. Id. the JRJ Student Loan Repayment 8. Altitude Express v. Zarda, Oyez, www.oyez. 63. Id. at *58. Program and how to apply, please org/cases/2019/17-1623 (last visited March 24, 64. Id. go to http://www.ok.gov/dac. Under 2020). 65. Id. “About the DAC”, click on the “John R. 9. Id. 66. Id. at *60. Justice Student Loan Repayment 10. Id. 67. Id. at *64. Program” link. Application packets 11. Complainant v. Anthony Foxx, Sec’y, 68. Id. must be Dep’t of Transp. (Fed. Aviation Admin.), Agency, 69. Id. at *17. submitted EEOC DOC 0120133080 2015 WL 4397641 at *10 70. Id. to the DAC (July 16, 2015). 71. Our Lady Guadalupe School v. Morrissey- or postmarked 12. Id. Berru, 591 U.S. _ (2020). no later than 13. Altitude Express, Inc. v. Zarda, 139 S. Ct. October 30, 1599 (2019). 2020 for 14. Bostock v. Clayton County, Oyez, www. consideration. oyez.org/cases/2019/17-1618 (last visited March 24, 2020). 15. Id. 16. Id.

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 31 Technology The Virtual Courtroom is Now in Session By Dallas L. Jones

32 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL HERE IS NOTHING videoconferencing for several platform for four straight hours of “Twrong with change, if it types of proceedings. In the draft coverage. Granted, this sub- is in the right direction.”1 The Northern District of Oklahoma, stantial result may be somewhat COVID-19 pandemic has instigated proceedings may be conducted attributable to fans going six prior change in our lives and touched by videoconferencing for deten- weeks with no sports. However, every industry across the coun- tion hearings, initial appearances, it also serves as a clear indication try. For schools, students were preliminary hearings, waivers of that these virtual capabilities can moved to online platforms in place indictment, arraignments, proba- be used on a significant stage. On of classrooms. Gyms and yoga tion and supervised release revo- April 23, that point was on display studios were limited to offering cation proceedings, pretrial release for a large portion of the country. various workouts and classes revocation proceedings, misde- online. For many businesses with meanor pleas and sentencings, THE PROS office settings, employees traded in among other proceedings.4 The Although the virtual courtroom cubicles and conference rooms for Western District of Oklahoma has may have started as a short-term a laptop and Zoom subscription. issued a nearly identical order.5 fix to an unprecedented crisis, The practice of law is no exception. Not surprisingly, this innova- going forward, it is likely that its This article is intended to highlight tive answer to the COVID-19 pan- positive aspects will be too attrac- the current trend of the virtual demic is not limited to Oklahoma. tive to turn away. According to a courtroom and law practice, to There are other stark examples of 2019 Business Travel Report, an discuss the positives and negatives courts across the country imple- average business trip costs $1,293.9 behind this trend and to feature menting similar procedures. Many Those numbers are only expected why the future practice of law may states began holding virtual hear- to rise in the future.10 Imagine be dependent on a law firm’s accep- ings by early April. Meanwhile, the money clients will save when tance of the trend. Texas has already performed an a large percentage of traveling entire trial on Zoom.6 expenses are eliminated. Say you THE GROWING USE In addition, examples of face- have a deposition in Philadelphia In Oklahoma, state courts are to-face business taking place in a that would normally take two authorized to use videoconferenc- virtual world have already reached days away from the office. You pay ing in place of court appearances.2 incredible heights. On the night of for roundtrip air travel and cross The rule “is intended to provide April 23, 2020, 15.6 million viewers your fingers that the delayed, con- a judge presiding over any mat- tuned in to watch the first round necting flight at O’Hare still gets ter in district court with broad of the NFL Draft.7 This broke the you in on time. You reserve two discretion regarding the use of previous record by more than hotel nights just in case someone videoconferencing.”3 Meanwhile, 3 million viewers.8 How was this shows up late or comes down ill in response to the COVID-19 possible during a global pandemic? the following day. Then, factor pandemic, federal courts in Every NFL team’s draft rooms in meals, as well as some form of Oklahoma have provided instruc- went virtual, connecting by video transportation in an unfamiliar tion for implementing similar conference through an online city. Compare that scenario with

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 33 a potential alternative. You log apply to virtual court appearances. arise in cases where one party has on from your office or conference You can count on client meetings, less advanced technology, impact- room, videoconference with the witness preparations, mediations ing how lawyers and witnesses deponent from 9:00 to 3:00, and and the like to also use this new could be perceived.19 still have time to finish up some wave of efficiency. research before you are home THE FUTURE before 6 p.m. that same day. THE CONS Part of the practice of law On top of the financial savings, A virtual courtroom is not with- will always have standing in a the virtual courtroom could open out its potential issues. The online historical model and tradition. the doors to unparalleled efficiency. platform Zoom is currently blocked However, at the same time, the Think of the time saved for attor- by the Oklahoma Administrative practice is ever evolving. Look no neys who no longer must spend Office of the Courts due to security further than the reactions to our hours (or days) going to-and-from concerns.14 However, applications global crisis of the past weeks. The a hearing that otherwise would like Skype, BlueJeans, Microsoft response by courts and lawyers take an hour. Those six hours spent Teams and GoToMeeting remain throughout the country seems to driving back-and-forth across the readily available. Plus, Zoom now point towards this virtual system state could instead be used to fine- has features that protect security becoming much more widespread tune that brief that needs a little and authenticates its users, much in the future. Following the 2020 more discussion or to get started like many of the other online NFL Draft, coaches and general on those discovery responses with platforms.15 There are certainly managers across the league used which an inevitable deadline looms possible issues with reliance on the words “awesome,” “fantastic” at the end of the week. audio, video and internet connec- and “outstanding” in describ- Not only could this time-savings tion. One does not have to stretch ing the virtual experience.20 Les apply to attorneys, but judges as the imagination too far to envision Snead, general manager of the Los well. In Queens, New York, one a computer screen going to black in Angeles Rams, stated, “The draft justice described his virtual court- the middle of an oral argument or may have just evolved.”21 While room experience, stating “[e]very- a party losing all audio in the mid- no one has a crystal ball, all signs body’s home, it’s amazing.”11 The dle of a judge’s instruction. The seem to indicate that if law firms judge “drank a cup of coffee, put long-standing tradition and allure do not embrace these changes and on a shirt and tie and got ready to of a courtroom may be difficult to advancements in technological face his courtroom.”12 Even more replicate when all parties join in efficiency, they may be left behind. striking, Judge Cohen of the 11th from their remote locations. Judicial Circuit Court in Miami Further, the learning curve for This article was originally pub- recently described the evolution in new users will be unavoidable. lished in the June 2020 Tulsa Lawyer the following way: “I don’t think This issue brings up additional and is reprinted with permission from this is going away … I think this is questions centered around fair- the Tulsa County Bar Association. going to be a game changer. Both ness. One legal author recently civil, family and probate divisions framed the issues of privacy and as well. Lawyers will not have to fairness quite succinctly. She ABOUT THE AUTHOR come in to wait to see the judge.”13 stated how “moving from a physi- Dallas L. Jones is an associate There are additional factors that cal to virtual space can impact the attorney at Titus Hillis Reynolds point towards virtual courtrooms experiences and treatment of par- Love in Tulsa. He practices mainly becoming more prevalent. No one ticipants.”16 It is a valid concern. in the areas of commercial and wants to see another global crisis More specifically, the article points business litigation. He received his like the one we have been maneu- out how videoconferencing could J.D. with highest honors from the vering through over the past sev- have a negative impact on a judge TU College of Law. eral weeks. However, if something or adverse party’s ability to assess like COVID-19 did strike again, the other parties’ credibility, emotions lawyers and courts who embrace and body language.17 Moreover, these changes will be far more there could be wide-ranging dif- prepared to operate in as much of ferences of “technological compe- a “business as usual” mode as pos- tence” between adverse parties.18 sible. These changes will not only Issues of objectivity could even

34 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL ENDNOTES 1. This quote is credited to Winston Churchill. It is thought to have come from an exchange in the House of Commons with Philip Snowden when Churchill defended his first budget in 1924. See Karl-Georg Schon, Wit & Wisdom, Finest Hour 100, 50 (Autumn 1998), winstonchurchill. org/publications/finest-hour/finest-hour-100/ wit-wisdom-10/. 2. Okla. Stat. tit. 12, Ch. 2, App., R. 34. 3. Id. at R. 34(C). 4. See In re Video Teleconferencing or Tel. Conferencing of Certain Criminal Proceedings Under the Coronavirus Aid, Relief, and Economic Security Act, GO-20-07 (N.D. Okla. Mar. 30, 2020). 5. See In re Use of Video and Tel. Conferencing for Criminal Proceedings During the COVID-19 Pandemic, G.O. 20-9.1 (W.D. Okla. Mar. 31, 2020). 6. See Angela Morris, Now Trending in Texas: Full-Blown Bench Trials via Zoom, Texas Lawyer (Apr. 21, 2020), www.law.com/ texaslawyer/2020/04/21/now-trending-in-texas- full-blown-bench-trials-via-zoom/#. 7. According to CNBC. Justin Birnbaum, 2020 NFL Draft Proves it can Work from Home – and Score Record Ratings, CNBC (Apr. 27, 2020), www. cnbc.com/2020/04/27/nfl-draft-proves-it-can- work-from-home-too-score-record-ratings.html. 8. Id. 9. The Average Business Trip Costs $1,293 and Prices Will Increase in 2020, Businesswire (Oct. 3, 2019), www.businesswire.com/news/ home/20191003005109/en/Average-Business- Trip-Costs-1293-Prices-Increase. 10. Id. See also Scott Hyden, Business Travel Costs are Expected to Rise – Here’s how to Negate the Price Bump, Entrepreneur (Aug. 24, 2018), www.entrepreneur.com/article/318919. 11. David Brand, Courtroom Goes Virtual for Emergency Judge Joseph Esposito, Queens Daily Eagle (Apr. 13, 2020), queenseagle.com/all/ courtroom-goes-virtual-for-emergency-judge- joseph-esposito. 12. Id. 13. Hank Tester, Coronavirus Impact: Pandemic Could Bring About Virtual Courtrooms, CBS Miami (Apr. 3, 2020), miami.cbslocal.com/2020/04/03/ coronavirus-virtual-courtrooms-miami-dade/. 14. See SCAD No. 2020-36 (Apr. 29, 2020). 15. Charlie Osborne, Zoom Security: Your Meetings Will be Safe and Secure if you do These 10 Things, Zero Day (Apr. 22, 2020), www.zdnet. com/article/make-sure-your-zoom-meetings-are- safe-by-doing-these-10-things/. 16. Amy Salyzyn, “Trial by Zoom”: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings, Slaw (Apr. 17, 2020), www.slaw.ca/2020/04/17/ trial-by-zoom-what-virtual-hearings-might-mean- for-open-courts-participant-privacy-and-the- integrity-of-court-proceedings/. 17. Id. 18. Id. 19. Id. 20. Jeremy Fowler, Stories Inside the Virtual 2020 NFL Draft: 10 GMs on What They Learned, ESPN (Apr. 29, 2020), www. espn.com/nfl/draft2020/story/_/id/29110271/ stories-virtual-2020-nfl-draft-10-gms-learned. 21. Id.

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 35

HIGHLIGHTS

KEYNOTE SPEAKER: PRESIDENT SUSAN SHIELDS LAURA MAHR SHARES INSIGHT INTO THEME If you were among the 500+ people who AND MEETING FORMAT took part in the May 5 webinar on tools to I certainly did not anticipate a global pandemic keep you cool during the COVID crisis, you’ll when I decided to focus on attorney wellness remember Laura Mahr. She’s back for the during my year as OBA president. However, bar convention – whether it’s in Oklahoma wellness issues have become increasingly City or virtually! She’ll speak on: important as we do our best to navigate the evolving changes due to COVID. The theme for „ A Resilient Mindset: Coming Back our 2020 OBA Annual Meeting is “Bouncing Stronger After a Global Crisis Back,” and we are planning programs on „ Five Things Every Lawyer Needs topics such as legal issues related to COVID, a panel discus- to Know About Burning Out and sion with the attorneys involved in the first major opioid trial Bouncing Back that took place in Oklahoma, as well as wellness programs that „ Tapping into include strategies for “bouncing back.” We will make a deci- the Wisdom sion in early September about the format of the Annual Meeting of the Body scheduled for November. Whether our 2020 annual meeting is to Optimize in-person or virtual, I hope you will plan to attend and celebrate Your Life being a part of the OBA and our Oklahoma legal community.

DIVERSITY AWARDS EVENT The Diversity Committee will honor its award recipients in an event that is part of this year’s Annual Meeting. Speaking will be Keith and Dana Cutler, a husband and wife team who are trial lawyers in Kansas City, Missouri, and presiding judges of the two-time Emmy- nominated, nationally syndicated daytime TV show Couples Court with the Cutlers. Whether they are speaking in person at a dinner or virtually, you won’t want to miss their presentation.

IN-PERSON OR VIRTUAL MEETING? That decision will be made after this magazine goes to press. More details and registration information will be available soon. Check the website and watch your email for the most current updates. www.okbar.org THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 37 2021 OBA BOARD OF GOVERNOR VACANCIES

Nominating Petition Deadline: 5 p.m. Friday, Sept. 4, 2020

OFFICERS Supreme Court Judicial the member of the Board of President-Elect District Seven Governors is to be elected that Current: Michael C. Mordy, Ardmore Current: Matthew C. Beese, year, shall file with the executive (One-year term: 2021) Muskogee director, a signed petition (which Mr. Mordy automatically becomes Adair, Cherokee, Creek, Delaware, may be in parts) nominating a OBA president Jan. 1, 2021 Mayes, Muskogee, Okmulgee, candidate for the office of mem- Nominee: James R. Hicks, Tulsa Wagoner counties ber of the Board of Governors for (Three-year term: 2021-2023) and from such judicial district, or Vice President Nominee: Benjamin R. Hilfiger, one or more county bar associ- Current: Brandi N. Nowakowski, Muskogee ations within the judicial district Shawnee may file a nominating resolution (One-year term: 2021) Member At Large nominating such a candidate. Nominee: Charles E. Geister III, Current: Brian K. Morton, Not less than 60 days prior to Oklahoma City Oklahoma City the annual meeting, 50 or more Statewide voting members of the OBA from BOARD OF GOVERNORS (Three-year term: 2021-2023) any or all judicial districts shall Supreme Court Judicial Nominees: file with the executive director a District One Cody J. Cooper, Oklahoma City signed petition nominating a can- Current: Brian T. Hermanson, Elliott C. Crawford, didate to the office of member at Newkirk Oklahoma City large on the Board of Governors, Craig, Grant, Kay, Nowata, or three or more county bars may Osage, Ottawa, Pawnee, Rogers, NOTICE file appropriate resolutions nomi- Washington counties This issue went to press before nating a candidate for this office. (Three-year term: 2021-2023) the deadline, and the list of nom- Not less than 60 days before Nominee: Vacant inees is not complete. See www. the opening of the annual meet- okbar.org/governance/bog/ ing, 50 or more voting members Supreme Court Judicial vacanices for updates. of the association may file with District Six the executive director a signed Current: D. Kenyon Williams Jr., Tulsa Summary of Nominations Rules petition nominating a candidate Tulsa county Not less than 60 days prior for the office of president-elect or (Three-year term: 2021-2023) to the annual meeting, 25 or vice president, or three or more Nominee: Vacant more voting members of the county bar associations may file OBA within the Supreme Court appropriate resolutions nominat- Judicial District from which ing a candidate for the office.

38 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL OKLAHOMA BAR ASSOCIATION NOMINATING PETITIONS (See Article II and Article III of the OBA Bylaws)

OFFICERS BOARD OF GOVERNORS President-Elect Supreme Court Judicial District No. 7 James R. Hicks, Tulsa Benjamin R. Hilfiger, Nominating Petitions have Muskogee been filed nominating James R. Hicks, Tulsa for Nominating Petitions have President-Elect of the OBA been filed nominating Board of Governors for a Benjamin R. Hilfiger for one-year term beginning election of Supreme Court Jan. 1, 2021. Judicial District No. 7 of the OBA Board of Governors If no one has filed for one of the A total of 175 signatures for a three-year term vacancies, nominations to any of appear on the petitions. beginning Jan. 1, 2021. the above offices shall be received from the House of Delegates on Vice President A total of 25 signatures a petition signed by not less than appear on the petitions. 30 delegates certified to and in Charles E. Geister III, attendance at the session at which Oklahoma City Member at Large the election is held. Nominating Petitions have See Article II and Article III of Cody J. Cooper, been filed nominating OBA Bylaws for complete infor- Oklahoma City Charles E. Geister III, mation regarding offices, posi- Oklahoma City for Vice Nominating Petitions have tions, nominations and election President of the OBA been filed nominating Cody J. procedure. Board of Governors for a Cooper, Oklahoma City Elections for contested posi- one-year term beginning for election of Member at tions will be held at the House of Jan. 1, 2021. Large of the OBA Board of Delegates meeting Nov. 6, during Governors for a three-year the OBA Annual Meeting. Terms of A total of 196 signatures term beginning Jan. 1, 2021. the present OBA officers and gov- appear on the petitions. ernors will terminate Dec. 31, 2020. A total of 52 signatures Nomination and resolution appear on the petitions. forms can be found at www. okbar.org/governance/bog/ Elliott C. Crawford, vacancies. Oklahoma City Nominating Petitions have been filed nominating Elliott C. Crawford, Oklahoma City for election of Member at Large of the OBA Board of Governors for a three-year term beginning Jan. 1, 2021. A total of 53 signatures appear on the petitions.

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 39 HOUSE OF DELEGATES

Dear County Bar Presidents: Thank you to the county bar presidents of: Beaver, Blaine, Choctaw, Cimarron, **Cleveland, Comanche, Creek, Delaware, **Ellis, Grant, Jackson, Love, Mayes, Okfuskee, Oklahoma, Ottawa, Pushmataha, **Tulsa, **Washington, Washita, Woods and **Woodward counties for submitting your Delegate and Alternate selections for the upcoming OBA Annual Meeting. (**Reported, awaiting election) Listed below are the counties that have not sent their Delegate and Alternate selections to the offices of the OBA as of August 17, 2020. Please help us by sending the names of your Delegates and Alternates now. In order to have your Delegates/Alternates certified, send Delegate certifications to: OBA Executive Director John Morris Williams, c/o Debbie Brink, P. O. Box 53036, Oklahoma City, OK 73152-3036, fax: 405-416-7001 or email [email protected].

Adair Craig Jefferson McIntosh Rogers Alfalfa Custer Johnston Murray Seminole Atoka Dewey Kay Muskogee Sequoyah Beckham **Ellis awaiting Kingfisher Noble Stephens Bryan election Kiowa Nowata Texas Caddo Garfield Latimer Okmulgee Tillman Canadian Garvin LeFlore Osage **Tulsa awaiting Carter Grady Lincoln Pawnee election Cherokee Greer Logan Payne Wagoner **Cleveland awaiting Harmon Major Pittsburg **Washington awaiting election Harper Marshall Pontotoc election Coal Haskell McClain Pottawatomie **Woodward awaiting Cotton Hughes McCurtain Roger Mills election

In accordance with the Bylaws of the Oklahoma Bar Association (5 OS, Ch. 1, App. 2), “The House of Delegates shall be composed of one delegate or alternate from each County of the State, who shall be an active or senior member of the Bar of such County, as certified by the Executive Director at the opening of the annual meeting; providing that each County where the active or senior resident members of the Bar exceed fifty shall be entitled to one additional delegate or alternate for each additional fifty active or senior members or major fraction thereof. In the absence of the elected delegate(s), the alternate(s) shall be certified to vote in the stead of the delegate. In no event shall any County elect more than thirty (30) members to the House of Delegates.”

“A member shall be deemed to be a resident, … of the County in which is located his or her mailing address for the Journal of the Association.”

40 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

From the Executive Director Trying to Meet My First Global Pandemic in the Lawyer Way By John Morris Williams

N THE LAST FIVE MONTHS I of free CLE courses this year, and I I am doing or asking of the OBA Ihave faced issues and questions I suspect that our Kick It Forward dues staff. I ask your indulgence, never dreamed I would have encoun- assistance fund may be depleted this patience and for your wisdom to tered. I usually give my best guess year. Since the YLD cannot host its make sure we are doing the right and follow it with, “I hope this works; fundraiser due to the social distanc- thing, at the right time and in the this is my first global pandemic.” For ing guidelines, if you have an extra right way. Please let me, any of the all of us that is the rock-bottom truth. dollar or two please include this con- staff or our elected leaders know I applaud those who have been inno- tribution in your dues statement this how we can help. There are some vative, those who have been generous year. This fund is totally made up of challenges that are beyond us, and with their kindness and resources, volunteer contributions to aid mem- I apologize for that beforehand. and those who persevere in light of bers who may be struggling with When I came to the OBA, I did not at times staggering difficulties. their finances to an extent they may want us at headquarters to be thought These are hard times. I say let’s call not be able to pay dues. Food for your of as “those people in Oklahoma them what they are and meet them family versus paying your dues is not City.” Being from Stonewall, I with what tools we have to make the a choice any OBA member should knew what that meant, and given best of it. This quarter and the last have have to face. I have given before, and the distance we all must keep from been some of the worst in the legal I will give this year for sure. each other, I don’t want us to be sector in our lifetime. The legal sector Every social resource and charity thought of as “those people over at is not alone. The difference is that as is experiencing strain, and resources the OBA.” We are here with you and lawyers we are called upon not only to are being exhausted. For any future for you. Never have I known a time handle our own personal challenges, generation that might read this, I when we may need to be together but to be there for our clients and our now totally understand my grand- more and yet are forced into separa- communities. That is the lawyer way! parents who survived the Great tion. If you need us, we are here. I like to think of myself as an Depression and saved bread sack This is my first global pan- optimist and am thankful that I have ties saying, “Don’t throw that out we demic of this magnitude. But we a glass whether it has something in it might need it someday.” While we have a job and a mission to do, or not. There are days as your execu- don’t have a bread sack tie shortage and all of it is about serving you tive director that I am amazed at how (that I know of), for the first time and keeping us together the best well everyone seems to be doing and in my life I have witnessed food we can. Please call on me, and I days where personal stories are con- and household product shortages of promise I will do my best to try veyed to me that leave me a bit bewil- this magnitude. People who worked and help in any way I can. After dered. I know how incredibly blessed hard, played by the rules and did all, that is the lawyer way. I am to work for you, and it saddens the right thing always are find- me to see the effects of this pandemic ing themselves without work and in the toll in human life and suffer- resources. Never have I seen a time ing and the economic impact it has when we all seem to need each other had upon people I dearly love. so much – yet seem so divided. Repeatedly I have asked OBA As I said before, this is my first To contact Executive Director members to let us know what we global pandemic of this magnitude, Williams, email him at johnw@ can do to help. We have given lots and I am not certain in everything okbar.org.

42 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL From the President

(continued from page 4) to fall, you will continue to see The Lawyers Helping Lawyers the OBA offer CLE and meeting Assistance Program sponsored opportunities online, and we will free CLE in May with Laura be making a decision about having Mahr called “Calm in the Storm: a virtual Annual Meeting instead Tools to Keep Your Cool in the of an in-person meeting in early to Corona Crisis” had more than 500 mid-September, so stay tuned for Sometimes it just attendees and was so successful that information. that Laura Mahr will be com- Wishing all of you more days takes looking at ing back as one of our speakers as the windshield instead of the at the OBA Annual Meeting. In bug – and hoping that you and things from a fact, from January to July of this your loved ones are continuing to year, OBA members have logged do well and stay well. As always, different view. almost 38,000 hours of CLE online, please do not hesitate to contact much of it free. This is an increase me with your questions, com- of about 40% from last year for ments and suggestions at susan. the same period. Looking ahead [email protected].

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 43 Law Practice Tips Top Tips for Practicing Law During a Crisis By Jim Calloway

RACTICING LAW during a with electronic payments. So, we a Password Manager with Tips Ppandemic is both challenging recorded a short video for this from Tom Mighell.” (May 26) and exhausting. tip with a rep from OBA member The OBA Management Assistance benefit LawPay. If you don’t know www.okbar.org/lpt_articles/ program began posting daily tips when you can use ACH processing take-the-pain-out-of-selecting-a- on practicing in a crisis in March. to save on processing fees or how password-manager-with-tips- Like so many things in 2020, this to easily incorporate client payment from-tom-mighell has gone on much longer than we links into your billing and website, anticipated. Some readers may this is the video for you. There are LEARN FROM YOUNGER have missed some of our most more processing tools today than a LAWYERS popular tips, so we decided to few years ago so this video is worth I’m a baby boomer. Maybe that feature some of our top tips so far the time investment. (May 12) is why I found the millennial take for 2020. We hope readers will take on lessons learned so far in the the opportunity to review the col- www.okbar.org/lpt_articles/ crisis so interesting – “Navigating lection for any tips you may have todays-times-demonstrate-that- the Pandemic by Embracing the missed. The index to the crisis tips lawyers-must-accept-electronic- Wisdom of Millennials.” (June 22) is at www.okbar.org/lpt_category/ payments jcdt-crisis-tips. You can also go to www.okbar.org/lpt_articles/ Jim Calloway’s Law Practice Tips navigating-the-pandemic-by- blog at www.lawpracticetipsblog. embracing-the-wisdom-of-millennials com and enter your email address to receive the tips via email. A SCREEN CAPTURE UTILITY TRILOGY TODAY’S TIMES Capturing an image or video DEMONSTRATE THAT from your computer screen has LAWYERS MUST ACCEPT many uses for lawyers. We pro- ELECTRONIC PAYMENTS vided three tips on this subject As shelter-in-place took hold, featuring 1) A free utility included the most common questions we A PASSWORD MANAGER IS in Windows – the Snipping Tool, 2) received from lawyers had to do A GREAT SECURITY TOOL An inexpensive and more powerful AND A TIME-SAVING tool – SnagIt and 3) A shopper’s CONVENIENCE guide to video recording utilities. After former ABA TECHSHOW Chair Tom Mighell did a compre- hensive set of blog posts on how to select the best password manager, I invited him for a video interview to discuss his findings, and the result was “Take the Pain Out of Selecting

44 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL „ “The Snipping Tool – A www.okbar.org/lpt_articles/ Useful Screen Capture improve-your-legal-research- Utility Built Into Windows” with-fastcase-tips-from-ed-walters (Aug. 3) www.okbar.org/lpt_articles/ AUTOMATE KEYBOARDING the-snipping-tool-a-useful- OPERATIONS WITH screen-capture-utility-built- ACTIVEWORDS into-windows „ “The Snipping Tool is Good, but a More Powerful WORKING FROM HOME Tool is Snagit” (Aug. 4) Many lawyers and other law www.okbar.org/lpt_articles/ firm employees found themselves the-snipping-tool-is-good- working from home this spring. but-a-more-powerful-tool- Between uncertainty over whether is-snagit school classes will be virtual and „ “What is the Best Way to the fact that everyone waking up Make a Video Recording ActiveWords is a piece of soft- with cold or fever symptoms this of What You See on Your ware that automates keystrokes. It is fall means that people should be Screen?” (July 27) inexpensive and has a generous free working remotely, it seems work- www.okbar.org/lpt_articles/ trial period. Many automation tools ing from home is not over for this what-is-the-best-way-to- work within Microsoft Word, but year. One of our early tips was “The make-a-video-recording- ActiveWords works across all plat- Burneys: Bears & Boundaries & of-what-you-see-on-your- forms, allowing one to create auto- Conference Calls.” screen mation tools for any situation that Legal technology consultant allows the entry of text. This short Brett Burney and his wife, GET MORE OUT OF FASTCASE video demonstrates the different Stephanie, already had years of AND ‘UPGRADE’ TO VERSION 7 ways you can use ActiveWords for a experience with a lawyer working Fastcase is a member benefit variety of functions, including creat- from home and the potential con- for OBA members. In this video ing signature blocks, opening your flicts with online schooling and Fastcase CEO Ed Walters gives us a favorite websites or inserting pages other activities happening there. It brief tour of Fastcase features, some of formatted text into the document is a cute video. We hope you enjoy research tips and covers free training you are creating. (June 15) it. (March 30) options. OBA members are currently defaulted to Fastcase 6. Ed also www.okbar.org/lpt_articles/ www.okbar.org/lpt_articles/ shows us how to toggle to Fastcase 7 automating-keyboarding-operations- the-burneys-bears-boundaries- for a more modern interface and is-easy-with-activewords conference-calls improved tools. “Improve Your Legal Research with Fastcase Tips from Ed Walters” (April 22)

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 45 NEW VIDEO SHARES TIPS TO BOOST YOUR PRODUCTIVITY

With many Oklahoma lawyers finding it necessary to work from home due to the COVID-19 pandemic, it is an excellent time to invest in practice management tools. For lawyers who already had all of their client file information organized in a cloud- based practice, it has been a smooth transition from working in an office to working from home. They have been able to work remotely and access all necessary client information, eliminating the need to carry around heavy, paper files. Lawyers and law firm staff would be able to easily work from home if they had the right practice management solution tools. OBA Practice Management Advisor Julie Bays has recorded a new video explaining the basic features of several of these tools. Find Julie’s video with tips and assistance for which practice management solution would work best for your law office at www.okbar.org/lpt_articles/a-practice- management-software-solution-is-a-critical-office-management-tool.

WORKING FROM HOME 2 of many popular systems. My ABOUT THE AUTHOR Here’s another post that’s personal purchasing decision was Mr. Calloway is OBA Management exactly what the title says – “Some based on ease-of-installation and Assistance Program director. Need More Great Tips on Working from knowing several who had used a quick answer to a tech problem Home.” (July 21) a previous model of the product. or help solving a management “Consider Upgrading Your WiFi dilemma? Contact him at 405-416- www.okbar.org/lpt_articles/ to a Mesh System.” (July 20) 7008, 800-522-8060, jimc@okbar. some-more-great-tips-on- org. It’s a free member benefit. working-from-home www.okbar.org/lpt_articles/ consider-upgrading-your-wifi- IF YOU ARE DEALING WITH to-a-mesh-system WI-FI DEAD ZONES, YOU NEED MESH WI-FI WRAP-UP This goes double for larger So that’s it for our self-selected, homes where work from home top pandemic crisis practice tips, and online schooling is happening but there will be new tips posted simultaneously. In this post, we each weekday. link to articles explaining how OBA MAP is available to mesh Wi-Fi works and reviews provide advice and answers to your law practice management questions. We are now scheduling virtual presentations for county bar associations through the end of 2020. CLE topics include Tips on Practicing in a Pandemic, Delivering Limited Scope Legal Services Effectively and Safely and Law Office Technology Update. Contact MAP Assistant Nickie Day to schedule a virtual presentation for your county bar. Her email address is [email protected], and her phone number is 405-416-7050.

46 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

Ethics & Professional Responsibility ‘Significantly Harmful’: Prospective Clients and Disqualification By Richard Stevens

ROSPECTIVE CLIENTS are PROSPECTIVE CLIENT specifically requests or invites Pa hazard for violating ethics The first question to be answered the submission of information rules and a reason to keep logs of under Rule 1.18 is, “Who is a about a potential representation all who seek representation from prospective client?” Comment [2] without clear and reasonably a lawyer. ORPC 1.18 defines a pro- provides that: understandable warnings and spective client as “A person who cautionary statements that limit consults with a lawyer about the A person becomes a prospec- the lawyer’s obligations, and a possibility of forming a client-lawyer tive client by consulting with a person provides information relationship … .” Under certain lawyer about the possibility of in response. circumstances, when a lawyer forming a client-lawyer rela- consults with a prospective client, tionship with respect to a mat- Comment [2] further provides: a conflict arises in subsequent ter. Whether communications, representations. Rule 1.18 defines including written, oral, or elec- A consultation does not occur if when a potential conflict arises, tronic communications, consti- a person provides information how to tell whether it is an actual tute a consultation depends on to a lawyer in response to adver- conflict and how to resolve that the circumstances. For example, tising that merely describes the conflict. Recently released ABA a consultation is likely to have lawyer’s education, experience, Formal Opinion 492 provides a occurred if a lawyer, either in areas of practice, and contact detailed discussion of the rule person or through the lawyer’s information, or provides legal and its application. advertising in any medium, information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possi- Rule 1.9 requires that information shall not bility of forming a client-lawyer relationship, and is thus not a be revealed or used to the disadvantage of a ‘prospective client.’ Moreover, a person who communicates with a lawyer for the purpose of former client except as provided by the Rules disqualifying the lawyer is not a of Professional Conduct. “prospective client.”

48 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL CONFIDENTIAL in the same or a substantially I encourage you to read ABA INFORMATION related matter if the lawyer Formal Opinion 492 for guidance Once a determination has been received information from the about avoiding and resolving made that a person is a “prospec- prospective client that could be disqualification issues with tive client,” the issue becomes one significantly harmful to that prospective clients. of confidential information. Rule person in the matter … . 1.18 (b) requires that information learned during a consultation be Comment [1] clarifies that Mr. Stevens is OBA ethics counsel. kept confidential: “prospective clients should receive Have an ethics question? It’s a some but not all of the protection member benefit, and all inquiries Even when no client-lawyer afforded clients.” are confidential. Contact him at relationship ensues, a lawyer That distinction can be seen [email protected] or 405-416- who has learned information more clearly when contrasting 7055. Ethics information is also from a prospective client shall Rule 1.9 with Rule 1.18 regarding online at www.okbar.org/ec. not use or reveal that informa- possible conflicts of interest. Under tion, except as Rule 1.9 would Rule 1.9 Comment [3], “A former permit with respect to informa- client is not required to reveal the tion of a former client. confidential information learned by the lawyer in order to establish Rule 1.9 requires that informa- a substantial risk that the lawyer tion shall not be revealed or used has confidential information to use to the disadvantage of a former in the subsequent matter.” Such client except as provided by the substantial relationship creates Rules of Professional Conduct. a conflict of interest, but under ORPC 1.18 (c) a lawyer is disqual- DISQUALIFICATION AND ified from representation only if ‘SIGNIFICANTLY HARMFUL’ the lawyer received “information INFORMATION from the prospective client that Rule 1.18 (c) provides for could be significantly harmful to disqualification arising from the that person in the matter … .” A consultation. That section states: determination of whether given information is “significantly harm- A lawyer subject to paragraph ful” is painstakingly fact-sensitive (b) shall not represent a client and fact-specific and varies from with interests materially adverse jurisdiction to jurisdiction. to those of a prospective client

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 49 Board of Governors Actions Meeting Summary

The Oklahoma Bar Association Board and the meeting with county bar BOARD MEMBER REPORTS of Governors met at the Oklahoma association presidents. He also Governor Beese reported he Bar Center in Oklahoma City and attended the Oklahoma Attorneys attended the Audit Committee remotely on Friday, June 19. Mutual Insurance Co. Board of meeting and May Legislative Directors meeting. Monitoring Committee meeting. INTRODUCTION OF Governor Edwards reported he NEW DIRECTOR REPORT OF THE attended the county bar asso- Executive Director Williams EXECUTIVE DIRECTOR ciation presidents meeting and introduced Janet Johnson, director Executive Director Williams Professionalism Committee meet- of educational programs. reported he attended Annual ing. He also drafted one of the bar Meeting planning meetings, exam questions for the Board of REPORT OF THE PRESIDENT Legislative Monitoring Committee Bar Examiners. Governor Garrett President Shields reported meetings, YLD board meeting, reported she attended the Women she attended Annual Meeting meetings regarding foreclosure in Law Committee meeting planning meetings and the and eviction issues and Audit and Audit Committee meeting. Legislative Monitoring Committee Committee meeting. He par- Governor Hermanson reported debrief meeting. She participated ticipated in interviews for the he presided over the Justice in Women in Law Conference director of educational programs Assistance Grant Board meet- planning calls, interviews for the and director of strategic commu- ing and attended the Legislative director of educational programs, nications and marketing posi- Monitoring Committee May initial telephone interviews for tions, disaster relief call, county meeting, two District Attorneys the director of strategic commu- bar association presidents video Council meetings, two Oklahoma nications and marketing position, meeting and several conferences District Attorneys Association county bar association presidents with President Shields. He shared meetings, OBA Professionalism video meeting and presentation that face masks with the OBA Committee meeting, Association of Uniform Bar Examination advi- logo have been ordered and will of Prosecuting Attorneys Capital sory task force recommendations be given to people taking the bar Litigation Committee meet- to the Supreme Court. exam. Additional masks may be ing, Violence Against Woman ordered for Annual Meeting. Act Grant Committee meeting REPORT OF THE and numerous DAC Executive VICE PRESIDENT REPORT OF THE Committee meetings. Governor Vice President Nowakowski PAST PRESIDENT McKenzie reported he attended reported she attended the Annual Past President Chesnut the Lawyers Helping Lawyers Meeting planning meeting, Audit reported he participated in Assistance Program meeting. Committee meeting and county interviews for the director of Governor Morton reported he bar association presidents meeting. educational programs position attended the Lawyers Helping and attended the county bar Lawyers Assistance Program REPORT OF THE association presidents meeting meeting. Governor Pringle PRESIDENT-ELECT and Lawyers Helping Lawyers reported he planned the President-Elect Mordy reported Assistance Program meeting. Legislative Debrief and partici- he participated in the meeting pated in the county bar associ- and interviews for the position of ation presidents meeting, Audit director of educational programs Committee meeting and May

50 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL Legislative Monitoring Committee focus on advance directives and Law Schools Committee liaison meeting. Governor Williams end-of-life care documents. They all three law school deans were reported he presided over a two- are in the planning stages but are very happy about the Supreme day hearing of a complaint before looking for volunteers and help Court’s decision to move to the the PRT and attended the May promoting the event once a date uniform bar examination that will Tulsa County Bar Association and location are set. go into effect July 2021. Discussion Board of Directors meeting, followed. Governor Edwards said June OBA Diversity Committee REPORT OF THE the Professionalism Committee meeting, county bar association SUPREME COURT LIAISON was planning on doing a CLE at presidents meeting and Audit Justice Rowe reported the court the Solo & Small Firm Conference Committee meeting. is staying busy. and is now looking at moving it to Annual Meeting. On behalf of REPORT OF THE YOUNG REPORT OF THE the Disaster Response and Relief LAWYERS DIVISION GENERAL COUNSEL Committee, Executive Director Governor Haygood reported General Counsel Hendryx Williams shared with the board a he chaired the division board reported a written report of PRC discussion he had with Oklahoma meeting and exec meetings. He actions and OBA disciplinary mat- City leaders regarding an upcom- attended the YLD Kick It Forward ters for May was submitted to the ing need for mediation related Committee meeting and county board for its review. to pandemic issues and the need bar association presidents meeting. for many volunteer lawyers to help mediate. Governor Williams said the Diversity Committee is working on its annual awards dinner to take place in conjunction with the Annual Meeting. Award The YLD has decided to host its Wills for Heroes nominations are due July 31. He said they are considering speakers event specifically for COVID first responders. who are entertaining, including attorneys Dana and Keith Cutler They are going to add advance directives who host a TV show called Couples Court With the Cutlers. Governor in addition to wills or just focus on advance Beese said at the request of the Legal Internship Committee, the Oklahoma Supreme Court directives and end-of-life care documents. granted a temporary suspension of the rule requiring licensed legal interns to complete a minimum of four hours in court each month. The YLD has decided to host its BOARD LIAISON REPORTS The waiver is approved through Wills for Heroes event specifically Vice President Nowakowski July 31. Governor Morton said for COVID first responders. They said the Awards Committee is the Lawyers Helping Lawyers are going to add advance direc- accepting nominations that are Assistance Program Committee tives in addition to wills or just due July 1. Governor Davis said as held a webinar on May 5 that drew

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 51 500 participants. He said discussion PROFESSIONAL The board voted to authorize groups have been converted from RESPONSIBILITY Executive Director Williams to in person to virtual, which allows TRIBUNAL APPOINTMENTS submit the application to the both Tulsa and Oklahoma City to The board approved President Supreme Court. be combined. Governor Pringle Shields’ reappointment of Angela said the Legislative Monitoring Ailles Bahm, Oklahoma City, EXECUTIVE SESSION Committee will hold its Legislative and Jody R. Nathan, Tulsa, and The board voted to go into exec- Debrief July 21 at 2 p.m. as a webi- appointment of Charles W. utive session to discuss a new OBA nar. He said the speakers are lined Chesnut, Miami; Jennifer Irish, strategic communications and mar- up, and the legislative panel will be Oklahoma City, and Patricia G. keting director position and status prerecorded. Governor Garrett said Parrish, Oklahoma City, to the PRT of litigation. They met and voted to the Women in Law Committee has with terms expiring 6/30/2023. come out of executive session. finalized the agenda for its con- ference on Oct. 16. Oklahoma City SUPREME COURT NEXT MEETING attorney Kelli Masters will be the APPLICATION The Board of Governors met in keynote speaker. The conference Executive Director Williams July and August. A summary of will include a judicial panel speak- summarized the draft of an those actions will be published in ing on the response to COVID-19 application to the Supreme Court the Oklahoma Bar Journal once the and programs with civility and requesting approval for a one-time minutes are approved. The next ethics components. allowance to conduct the House board meeting will be Sept. 25. of Delegates vote by an alternative LAW DAY COMMITTEE REPORT method if circumstances require Committee Chairperson Ed the in-person Annual Meeting to Wunch reviewed the committee’s be moved to a virtual meeting. results and modifications made to offering the statewide free legal advice and TV show during the pandemic. The contest and its ceremony took place before shel- tering was recommended. He also reviewed the committee’s goals for continued improvements next year. President Shields shared her rewarding experience at the contest winner ceremony at the state capi- tol with family members. The com- mittee was thanked for its work.

OKLAHOMA BAR FOUNDATION BOARD OF TRUSTEES The board approved President Shields’ appointment of Barbara F. Klepper, Oklahoma City, for a one-year term to the OBF board expiring 12/31/2021.

52 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

Bar Foundation News Technology as a Solution for 2020 OBF Court Grant Recipients By Candice Pace

VER THE PAST several While technology has provided OBF received many requests for Oyears, most of us have come great solutions for many problems audiovisual equipment updates. to rely on technology to make our courts deal with, it also comes In recent years, requests for informed decisions about our with challenges. One challenge is smartboards and tablets have lives. Whether tech-savvy or not, its rapid progression, which has increased tremendously. This we are all using more technology left many of our courthouses in year, more applicants requested day to day than ever before. We dire need of modern equipment Skype CART. Here are a few ask Siri to find a recipe, or we type and updates. Since budget funds examples of how Skype CART an address into the maps applica- for these types of updates are provide solutions for issues our tion on our phone to find an unfa- limited, the OBF has established, courts are currently facing: miliar location. The COVID-19 with the aid of generous cy pres pandemic and new ways of relat- awards, a special fund specifically „ Smaller counties sharing ing, like social distancing, have to improve the administration of court reporters will often pushed us to embrace technology justice through important court- have multiple hearings on to connect with each other and room technology. the same date and time perhaps utilize other solutions Each one of our 77 county that require court report- we have long been avoiding. The courthouses has its own unique ers. Skype CART provides experience has been no different needs for technology. During the options for court reporters for our courts. early years of court grants, the to cover all counties more effectively. „ Skype CART provides parents in deprived cases a way to appear remotely if they are unable to travel to court, they allow mental health defendants to appear for hearings from mental health facilities if necessary and they enable juveniles in detention to appear via Skype if they are housed in places across the state that are different from where their cases are adjudicated.

54 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL „ Through Skype CART, District Court Grant Amount Technology Grant initial appearances and arraignments of defendants Alfalfa County $8,748.75 Skype CART and accessories can occur while the defen- Coal County $5,283 Wi-Fi router, iPad and accessories dants are safely housed in Cotton County $13,784.66 Skype CART and accessories county jails, thereby elimi- Craig County $6,005 Smartboard and accessories nating the need to publicly transport them to and from Delaware County $12,732.62 Smartboard and accessories courtrooms. Dewey County $8,748.75 Skype CART and accessories „ Skype CART provides Two digital recorders and large Johnston County $21,450 ways for young children to courtroom sound system testify in accordance with Major County $8,748.75 Skype CART and accessories the Uniform Child Witness Three digital recorders and one Testimony by Alternative Marshall County $2,912 lectern Methods Act without having to face their rapists, McIntosh County $7,649.75 Skype CART and accessories Lectern with wireless mic and molesters and abusers. Muskogee County $1,607 Skype CART permits the speaker child to testify without Osage County $11,070 Smartboard and accessories being in the courtroom, and Ottawa County $7,862 Smartboard and accessories at the same time, allows Pontotoc County $7,228.36 Smartboard and accessories counsel and the defen- dant to see and hear the Tulsa County $6,700.50 Smartboard and accessories testimony and provide for Woodward County $8,748.75 Skype CART and accessories cross-examination. $139,279.89

The OBF recently approved court The OBF is committed to improving Ms. Pace is the OBF director of grant requests for Skype CART, the administration of justice in every development and communications. smartboards and other technology county court in Oklahoma. To date, in the amount of $139,279.89. Court the OBF has made grants to 67 of the grant recipients for 2020 are: 77 Oklahoma counties for important courtroom technology updates.

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 55 Young Lawyers Division 2021 YLD Leadership Voting Opens Oct. 1, Ends Oct. 23 By Brandi Nowakowski

T’S THAT TIME OF YEAR „ At-Large: Two seats; all 2021 LEADERSHIP Iagain – election season! Once counties again, we have the opportunity to „ At-Large Rural: One seat; all 2021 Chair select our young lawyer representa- counties except Oklahoma April Moaning tives. These individuals will sit on and Tulsa counties April J. the Young Lawyers Division Board Moaning of Directors and lead our division of If you haven’t already, you may received a the Oklahoma Bar Association. soon be seeing social media posts Bachelor of Oklahoma City attorney April asking for your vote. Please take Arts in eco- Moaning will become the division a moment to read the candidate nomics from chair for 2021, and many YLD information and vote. It’s quick OSU and members have stepped forward to and easy to vote; it just takes a earned her run for office and serve our great minute. Voting for YLD elections J.D. at the TU College of Law. organization. If you have been in is conducted by electronic ballot, While pursuing her law degree, practice for 10 years or less, you which will be emailed to you on she served as vice president of are a YLD member. As such, you Oct. 1. You may cast your vote any the TU Law Black Law Students can and should vote! The offices time between Oct. 1 – 23. It couldn’t Association and maintained active up for election are: be any more convenient to get involvement in community service involved with your bar association! organizations. She also received „ Executive Offices: chair-elect, In order to ensure you receive numerous honors and awards, treasurer and secretary a ballot, verify the OBA roster including the CALI Excellence „ District 1: One seat; Craig, contains your current email for the Future Award in torts and Grant, Kay, Nowata, Osage, address. You may do so by logging the Rocky Mountain Black Law Ottawa, Pawnee, Rogers into MyOKBar or by calling the Students Association Best Oral and Washington counties OBA Membership Department at Advocate Award. „ District 3: One seat; 405-416-7080. Ms. Moaning began her legal Oklahoma County Once again, ballots must be cast career practicing family and crim- „ District 5: One seat; Carter, no later than midnight, Friday, inal defense law. She later served Cleveland, Garvin, Grady, Oct. 23. If you do not receive a as staff counsel at Liberty Mutual Jefferson, Love, McClain, ballot, email brandi@stuartclover. Insurance Co. where she gained Murray and Stephens com so one can be sent to you. experience in the areas of insur- counties Uncontested offices will be deemed ance defense and civil litigation „ District 6: Two seats; Tulsa elected by acclamation. Election matters involving personal injury County results will be announced at the and property damage. Currently, „ District 7: One Seat; Adair, YLD November meeting to be she represents clients in family, Cherokee, Creek, Delaware, held in conjunction with the OBA personal injury and civil matters. Mayes, Muskogee, Annual Meeting. She also continues to focus on Okmulgee and Wagoner her commitment to community counties outreach by serving on the OBA

56 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL Diversity Committee and OBA 2020 Class, which recognizes with honors and was inducted YLD Board of Directors. She has young leaders across Oklahoma. into The Order of Barristers. She served on the Board of Directors Mr. Haygood also serves as the was a recipient of the William T. since January 2015 and has received Governance Committee Chair for and James T. Comfort Scholarship multiple awards for her involvement Rebuilding Together OKC, where and was a member of the Dean’s and dedication to the division. he has been on the board since 2019. Leadership Fellows. Ms. Laughlin He graduated from the OCU School served as an editor on the Oklahoma 2021 Immediate Past Chair of Law in 2013, where he received Law Review and participated in Jordan Haygood the 2013 Dean’s Service Award from moot court, receiving top awards Jordan Dean Valerie K. Couch. He is also in regional and national compe- Haygood is a 2005 graduate of Texas Christian titions. She received a Bachelor the current University, where he received his of Arts in international studies, chair of the B.S. in news-editorial journalism summa cum laud, and a Bachelor Young Lawyers from the Bob Schieffer College of of Arts in letters with distinction Division and Communication. Mr. Haygood resides from OU. She is a member of Phi has been a in Oklahoma City with his fiancé, Beta Kappa. member of the Marty Coltrane, and their pug, Carlos. Ms. Laughlin is a native of board for six years, previously hold- Woodward and enjoys contribut- ing each Executive Board position. ing to her home-state community. He also serves on the OBA Board of CONTESTED ELECTIONS She serves as co-chair for the OBA Governors and serves as a member Women in Law Committee Social of its Budget Committee and Audit The following persons have been Committee and is a member of the Committee. Additionally, he serves nominated and are running contested OU Law International Business & on the Awards Committee and for the following positions. Results Human Rights Young Alumni the Solo & Small Firm Conference will be announced at the YLD Advisory & Pro Bono Council. She Planning Committee. November meeting. also volunteers as a member of Mr. Haygood is the regional ZOOTroop, a young professionals’ director of managed care for SSM District 3 organization supporting the OKC Health – Oklahoma, where he leads Kellie Laughlin Zoo, and sings as a member of the all contract negotiations, drafting, Kellie Canterbury Voices choir. During management and strategy with Laughlin her spare time, she enjoys traveling, insurance payors for SSM Health serves as a staff camping and spending time with St. Anthony Hospital – Oklahoma attorney to her husband and their “family zoo” City, Shawnee and its operating Judge Kenneth L. of two cats and two dogs. entities. He previously held the role Buettner of of senior legal counsel before mov- the Oklahoma ing into his director position. Court of Civil He was recently named to the Appeals. She attended the OU Journal Record Achievers Under 40 College of Law, where she graduated

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 57 Eleanor Burg entering law school, she worked as of the Pryor office. He is currently Eleanor Burg a legal assistant for a law firm in serving as a YLD board member is a transac- San Antonio, Texas. and president of the Mayes County tional associate Bar Association. at McAfee & District 7 He attended TU where he Taft whose Margaret Cook received his degree in finance practice encom- Margaret and a minor in economics. He passes a broad Cook attended attended graduate school at range of corpo- the TU College OU, where he received both rate and business matters, including of Law after his J.D. and Master of Business business entity formation and orga- working for Administration. He also received nization, mergers and acquisitions, several years a certificate in law and entrepre- asset and stock acquisitions and with Help-In- neurship from the OU College divestitures, transaction financing, Crisis, a domes- of Law. His areas of practice are contract negotiations and the devel- tic and sexual violence service diverse but largely include busi- opment and sale of real estate. agency. After graduating with her ness/corporate and contract litiga- She graduated with honors J.D. in 2012, she returned to Help- tion, family law, criminal defense from the OU College of Law in In-Crisis to serve as its executive and the protection of civil and 2018, where she served as man- director. During her years as property rights. aging editor of the Oklahoma Law executive director, Ms. Cook estab- Mr. McBride has litigated Review, director on the Board of lished a legal program to assist federal business actions, orga- Advocates, member of the ABA survivors of domestic violence and nized multi-million-dollar busi- National Appellate Advocacy sexual assault. She received recog- ness transactions and transfers, Team and was named to The nition for her service in 2016 with represented high asset divorce Order of Barristers. She was the Dianne Barker Harold Award. estates and successfully defended also the recipient of the OBA’s In 2017, she went on to open her a first-degree murder charge Outstanding Senior Student own practice in Tahlequah and con- from district court all the way to Award and the Joel Jankowsky siders herself, not just an attorney, the Oklahoma Court of Criminal Award, which recognizes the but a legal advocate. She has a pas- Appeals. He has also represented graduating student who exempli- sion for assisting victims of violence three separate Oklahoma police fies the highest standard of excel- and strives to help them get back chiefs in wrongful termination lence in leadership, scholarship on their feet. She has an exceptional issues and employment disputes. and selfless service to others. skill for listening to client’s needs Outside the courtroom, he In her free time, Ms. Burg serves and developing a legal plan that tries to promote comradery among as the captain of her ultimate frisbee is specifically developed for each lawyers and further legal education team and recently established and individual. She strives to make each in conjunction with the bar asso- currently leads the first Diversity and every client feel valued. ciation. He has been published in Committee for the Oklahoma City She is a member of the American the Oklahoma Bar Journal regarding Ultimate Association. From 2018 to Bar Association, OBA Family Law court-ordered, grandparental rights 2019, she served as a team leader Section and OBA Estate Planning, and interlocutory appeals and with The Mine, advising a team Probate and Trust Section. She has presented CLEs on the two issues. of local young professionals in also served as YLD representative Outside of the legal world, he is forming a national expansion plan for District 7 from 2018 – 2020. married to his wife, Rachel, and has for an Oklahoma City nonprofit two young daughters. He enjoys fly organization. Chase McBride fishing when he can find time. While an undergraduate, she Chase completed a summer internship McBride is a in the congressional office of U.S. partner at the Rep. Dan Boren as part of the Ritchie, Rock, Ewing Fellowship Program at OU. McBride & After graduating cum laude with Atwood Law a bachelor’s degree in political Firm working science from OU and prior to primarily out

58 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL UNCONTESTED ELECTIONS his service to the student body, the to provide information about the Public Service Award for his pro Oklahoma bar and advice to The following persons have been nom- bono work in both civil and crimi- law students. inated. They are running uncontested nal legal clinics, a Top Ten Speaker She has also contributed to the and will be declared elected at the Award in moot court and was Tulsa Lawyer magazine advocating OBA YLD meeting in November. included on the dean’s list for his for firms to expend time and effort academic achievements. In his free into helping their young lawyers Chair-Elect time, he enjoys reading all the books grow in their careers. She wants to Dylan Erwin he didn’t have time to read while continue to serve on this board to Dylan in law school, writing short fiction, bring more networking opportuni- Erwin joined traveling and attempting to live out ties to the young lawyers in Tulsa Holladay & his high school dream of being the and to ease the daunting transition Chilton in frontman of a garage band. from law school into the legal field 2018. Prior to for newly admitted lawyers. entering pri- Treasurer vate practice, Caroline Secretary Mr. Erwin was Shaffer Siex Laura Talbert an assistant district attorney for Caroline Laura Comanche and Cotton counties. Shaffer Siex is a Talbert is a During his time in the DAs office, December 2016 shareholder he was able to hone his skills as graduate from at Stockton a trial attorney while serving the TU College Talbert PLLC the people in his hometown of of Law. She in Oklahoma Lawton. After leaving the DAs currently works City. Her prac- office, he brought his trial experi- at the Tulsa firm Gibbs Armstrong tice primarily ence with him into the private sec- Borochoff PC handling civil liti- focuses on complex civil litigation tor with Andrews Davis, where he gation, nursing home defense and and employment law. She gradu- worked primarily in their crimi- family law. She is a co-chair for the ated from the OU College of Law nal law and civil litigation practice OBA Women in Law Committee’s in 2012. After graduating, she areas. As a criminal defense attor- networking subcommittee and a worked as a prosecutor. Prior to ney, he has represented clients in member of the Tulsa County Bar starting her own firm, Ms. Talbert matters ranging from speeding Association and Hudson Hall also worked for the Oklahoma tickets and misdemeanor DUIs Wheaton Chapter of the American Department of Corrections General to felony drug charges and multi- Inns of Court. Counsel’s Office. In her free time, defendant racketeering prosecutions. Ms. Siex has been serving the she enjoys playing volleyball, As a civil litigator, he has OBA as a YLD Board of Directors watching the Thunder and cheer- handled cases ranging from small member since 2017. She served ing on the Sooners. She has been claims disputes to large scale as the Hospitality Chair for on the YLD board for three years construction litigation, complex the division from 2018 to 2019. and looks forward to continuing business litigation and employment In 2020, she has been serving her service in a leadership role. and labor claims on behalf of both as the board’s secretary while the employer and the employee. A also serving as the YLD District District Six fifth generation Oklahoman, Mr. Representative for District 24 Caroline Shaffer Siex Erwin graduated magna cum laude (Oklahoma and Arkansas) of the See bio above. from OU in 2011 with a Bachelor of ABA. During her time on the Arts degree in English and a minor board, she has shown her will- in classical cultures. He received ingness and effort to help other ABOUT THE AUTHOR his J.D. from the OU College of Law young lawyers, especially those Ms. Nowakowski is YLD immediate in 2014. While in law school, he just emerging into practice, from past chairperson and chairs the served as president of the Student passing out bar exam survival division’s Nominating Committee. Bar Association and vice justice of kits, hosting a swearing-in happy She practices in Shawnee and the Harlan Chapter of Phi Alpha hour for newly admitted Tulsa also serves as OBA vice president. Delta law fraternity. He received the area lawyers and attending Keep up with the YLD at www. Student Bar Association Prize for the TU bar preparation class facebook.com/obayld.

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 59 For Your Information

VOLUNTEERS NEEDED OBA MEMBER REINSTATEMENT FOR EARLY SETTLEMENT The following member sus- MEDIATION PROGRAM pended for nonpayment of dues Thank you to OBA members who or noncompliance with the Rules have already signed up for our Let’s for Mandatory Continuing Legal Talk Housing program, announced in Education has complied with the August, to address the eviction surge requirements for reinstatement, following the end of the CARES Act and notice is hereby given of such moratorium in July. reinstatement: In partnership with the Oklahoma Supreme Court Early Settlement Michelle J. Millben, OBA 30403 Program and the Access to Justice 801 N. Pitt Street #309 Commission, the OBA is offering Alexandria, VA 22314 free mediation training, including 6.5 hours of MCLE credit, to equip more attorneys to be involved in the state’s Early Settlement OBA MEMBER RESIGNATIONS Mediation program. The following members have The OBA’s Let’s Talk Housing program is a collaboration that has resigned as members of the associ- allowed nonprofit organizations focusing on the housing crisis, the OBA ation and notice is hereby given of and Oklahoma Supreme Court Access to Justice Commission and Early such resignation: Settlement Program to respond to the ongoing economic consequences of the pandemic that are now reaching the courts. Alvin Daryl Webster, OBA No. 16071 “I appreciate the leadership by the president, the Board of Directors and Pt. Lena Loop Rd. the executive director of the Oklahoma Bar Association in coordinating with Juneau, AK 99801 lawyers all over the state to assist the public in dealing with the very seri- ous issue of evictions,” said Oklahoma Supreme Court Chief Justice Noma Jonathon Cory Sanchez Gurich. “Our district judges are adaptable, resilient and resourceful. In times OBA No. 33606 of strife, people often turn to the courts to find answers. Together, with the 17503 25th Ave NE, K207 assistance from Oklahoma lawyers, the judicial system will remain strong Marysville, WA 98271 and accessible so that the best interests of the public are served.” As the federal moratorium that stalled evictions expired, President Susan Shields asks Oklahoma attorneys to volunteer to assist in the Early Settlement Program in an effort to find solutions short of evictions and civil trials by getting the necessary training to serve as mediators. President Shields explains, “Our goal is for Oklahoma attorneys across our state to get training in the Early Settlement Mediation program so we can apply our expertise to help in this emergency. Mediation has proven to be an effective and lower cost tool to help settle disputes between landlords KICK IT FORWARD who rely on rental income and tenants who might face homelessness in this TOURNAMENT TO BE unprecedented time that finds many unemployed and unable to take care MOVED TO SPRING 2021 of basic expenses.” The Young Lawyers Division “Lawyers are looking for opportunities to help in this time of crisis, and has decided to postpone the the Let’s Talk Housing program is an important way to give back to people annual Kick It Forward Kickball in our communities that are hurting and to help relieve the stress on the Tournament. The tournament will court system,” said President Shields who plans to be among the first OBA now take place in April. More members to take the course. details can be found on the Kick For additional information on becoming a volunteer mediator for the It Forward Kickball Tournament Early Settlement Program, email [email protected]. webpage at www.okbar.org/kif.

60 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL OBA COVID-19 RESOURCES The OBA has com- piled a list of resources from the state of Oklahoma, the federal Centers for Disease Control and Prevention, Federal Emergency Management Agency and the Oklahoma district courts in order to help Oklahoma lawyers during the COVID-19 pandemic. The list is updated frequently as more resources and information becomes available. A few notable resources include:

„ CARES Act Resources for Property Owners and Renters: The OBA Access to Justice Committee wants all Oklahoma lawyers to be aware of the basic provisions important to both property own- ers and renters under the CARES Act. They have created a guide designed to inform about CARES Act provisions that impact both plaintiffs and defendants. „ Oklahoma Court Resources: Information about the impact COVID-19 is having on court proceedings, including guidelines for Oklahoma trial judges who may have attorneys wishing to conduct depositions by videoconference. „ Law Practice Tips: OBA Management Assistance Program Director Jim Calloway posts daily tips to help lawyers as the COVID-19 crisis continues to create unique challenges. Find some of Mr. Calloway’s top tips featured on page 44.

For the full list of the latest OBA pandemic resources updates, visit www. okbar.org/covid19.

WOMEN IN LAW CONFERENCE POSTPONED, SPOTLIGHT WINNERS TO BE HONORED In consideration of keeping people safe during this pandemic, the Women in Law Committee has decided to cancel its annual conference for this year. The event, originally scheduled for Oct. 16 in Oklahoma City, will be moved to 2021. An important conference tradition is to present five women with Mona Salyer Lambird Spotlight Awards, honoring recipients who have dis- tinguished themselves in the legal profession and who have lighted the way for other women. The awards will be bestowed this year, and a plan to honor them virtually is being developed now. Watch for more details to come!

ASPIRING WRITERS TAKE NOTE We want to feature your work on “The Back Page.” Submit articles of 500 words or less related to the practice of law, or send us something humorous, transforming or intriguing. Poetry and photography are options too. Send submissions to OBA Communications Director Carol Manning, [email protected].

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 61 Bench and Bar Briefs

ON THE MOVE KUDOS

Madison Cataudella has joined the Maria T. Kolar will join the OCU Retired Judge Timothy Colbert Tulsa office of Charney Brown LLC. School of Law as a faculty mem- will be inducted into the Chickasaw She will focus on corporate represen- ber this fall. She received her J.D. Hall of Fame. He received his J.D. tation at the Oklahoma Corporation from Yale Law School in 1995. After from the OCU School of Law in Commission, with additional empha- graduating, Ms. Kolar served as a law 1976. In 1979, he was elected to the ses in the firm’s estate planning and clerk on the U.S. Court of Appeals Chickasaw Tribal Council District 5 probate branches. Ms. Cataudella for the 7th Circuit in Chicago. She and the new Chickasaw Tribal received her J.D. and LLM from then served as a law clerk on the Legislature in 1983, where he was the TU College of Law in 2019. Oklahoma Court of Criminal Appeals a member of the tribal health care for nearly 13 years and as a law clerk and commerce committees. Judge Kelli Hilgenfeld has joined the on the U.S. District Court for the Colbert served as associate dis- Oklahoma City office of Evans & Western District of Oklahoma for two trict judge for Murray, Johnston, Davis as an associate attorney. She years, focused solely on capital habeas Marshall and Love counties. He received her J.D. from the OU College corpus cases. She previously served as retired in 2019 after 40 years as a of Law in 2010. Ms. Hilgenfeld will a visiting assistant professor at the OU Chickasaw legislator. practice primarily in the areas of estate College of Law, where she taught legal planning, business planning, trust research and writing. Most recently, Judge Jerry Moore, a former administration and probate law. she worked in the Homicide Direct district attorney and resident Appeals Division of the Oklahoma of Tahlequah, was sworn in Caroline G. Lindemuth has joined the Indigent Defense System. as a Cherokee County special Tulsa office of Crowe & Dunlevy as an judge on June 30. The office of associate attorney. She received her J.D. John Alberts and Kirk Olson have special judge covers Cherokee, from the TU College of Law in 2019. established Bison Law Firm, located Adair, Muskogee, Wagoner and Ms. Lindemuth will be a member of at 1609 Professional Circle in Yukon. Sequoyah counties. He received the firm’s Labor and Employment and The firm will focus on cases involv- his J.D. from the OU College of Litigation and Trial Practice Groups. ing catastrophic injury, wrongful Law in 1991. After practicing death, semi-truck collisions, car and with Baker and Baker, he was Daniel J. Talbot has established Talbot motorcycle crashes, oil field acci- appointed to assistant district Law Group PLLC, located at 2000 N. dents, fall events and other incidents attorney in 1995. In 2006, Judge Classen Blvd., Ste. A200, in Oklahoma involving serious personal injury. Moore was elected district attor- City. He received his J.D. from the Mr. Alberts, a former assistant ney for District 27 and then OCU School of Law in 1998. C. Magan district attorney for Kay County opened his own practice. Graham has joined the firm as an and a Yukon mayor, will serve as associate attorney. She received her J.D. managing partner. The firm can be from the OU College of Law in 2005. reached at 405-407-0111.

HOW TO PLACE AN you. Sections, committees, and county Submit news items to: ANNOUNCEMENT: bar associations are encouraged to The Oklahoma Bar Journal welcomes submit short stories about upcoming or Lauren Rimmer short articles or news items about OBA recent activities. Honors bestowed by Communications Dept. members and upcoming meetings. If other publications (e.g., Super Lawyers, Oklahoma Bar Association you are an OBA member and you’ve Best Lawyers, etc.) will not be accepted 405-416-7018 moved, become a partner, hired an as announcements. (Oklahoma-based [email protected] associate, taken on a partner, received publications are the exception.) a promotion or an award, or given Information selected for publication Articles for the November issue must be a talk or speech with statewide or is printed at no cost, subject to editing received by Oct. 1. national stature, we’d like to hear from and printed as space permits.

62 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

In Memoriam

udge Thomas H. Alford of the OCBA, Legal Aid Services of ouglas R. Haughey of Tulsa JMuskogee died Aug. 4. He was Oklahoma or the Regional Food Ddied May 2. He was born born Dec. 16, 1949, in Muskogee. Bank of Oklahoma. Aug. 23, 1956, in Champaign, Judge Alford, a graduate of Illinois. He graduated from Illinois Muskogee Central High School, ohn Michael Baum of Edmond State University and received his received his J.D. from the OU Jdied July 15. He was born May 30, J.D. from the TU College of Law College of Law in 1976. After work- 1944, in Ponca City. Mr. Baum in 1981. Following graduation, ing as an associate with Wilcoxen, received his bachelor’s degree Mr. Haughey joined the firm of Cate and Scherer, he became an from OU in 1966 and his J.D. from Doyle, Harris, Davis & Haughey, assistant district attorney, and the OU College of Law in 1970. where he practiced until his death. ultimately chief prosecutor for the Memorial contributions may be Muskogee County district attor- atheryn K. Buhle of Boca made to the First Presbyterian ney’s office. He was appointed a KRaton, Florida, died June 19. Church of Champaign, Illinois. special judge in Muskogee County She was born Sept. 21, 1950. Ms. in 1985 and was selected to serve Buhle received her J.D. from the arilyn K. Hughes of as an associate district judge later OCU School of Law in 1982. MOklahoma City died June 24. that year. In 1998, Judge Alford She was born April 14, 1949, in was elected a district judge for obbie Emery Burke of Tulsa Duncan. After graduating with Oklahoma’s 15th Judicial District Rdied May 22. She was born her bachelor’s degree from OSU, and was re-elected four times Mar. 23, 1952, in Duncan. Ms. Ms. Hughes taught English and before retiring in January 2019. Burke graduated from OU with her French at Tulsa’s Union High Memorial contributions may be bachelor’s degree and received her School. She received her J.D. from made to Grace Episcopal Church J.D. from the TU College of Law in the TU College of Law in 1975. Ms. or CASA for Children Inc. 1982. She worked at Sneed Lang Hughes was general counsel for before going into private practice. Sonic Corp. before becoming exec- teven L. Barghols of Oklahoma She practiced mainly in the areas of utive director of the Oklahoma SCity died July 29. He was born elder law, estate planning, guard- Ethics Commission, a position she May 13, 1951, in Cherokee, Iowa. ianships and title law. Memorial held for 25 years. Memorial contri- Mr. Barghols graduated from OU contributions may be made to butions may be made to Bethlehem with his bachelor’s degree in 1972 the First Presbyterian Church of Primitive Baptist Church or and received his J.D. from the Tulsa Children’s Ministry or Tulsa Harmony Plains Singing School. University of Texas School of Law Lawyers for Children. in 1976. He began his career as an C. Joyce of Tulsa died July 11. oil and gas lawyer but later found onald Deane Fulkerson of J.He was born Jan. 23, 1940, in his calling in mediation and arbi- ROklahoma City died July 10. Huntington, Arkansas. Mr. Joyce tration, practicing at the Oklahoma He was born Dec. 11, 1932, in graduated from Tulsa Central High City firm of Hampton Barghols Oklahoma City. After graduating School in 1958. While attending law Pierce PLLC. Mr. Barghols served from high school, he enlisted school, he was editor in chief of the as president of the Oklahoma in the U.S. Army and served in Tulsa Law Journal and was chosen as County Bar Association, Oklahoma the Korean War. Mr. Fulkerson the top law student by the OBA and County Bar Foundation, William J. received his J.D. from the OCU Tulsa County Bar Association. He Holloway Jr. American Inn of School of Law in 1967. The founding received his J.D. from the TU College Court and the Edmond Public attorney of Fulkerson & Fulkerson of Law in 1966 and joined the firm Schools Foundation. He was a PC, he tried more than 100 cases of LeRoy Blackstock, where he later recipient of the OBA’s Neil E. over his 53-year career. Memorial became partner. He spent most of Bogan Professionalism Award contributions may be made to his 54-year legal career defending and the OCBA’s Bobby G. Knapp The Toby Keith Foundation’s the constitutional religious rights Bar Leadership Award. Memorial OK Kids Korral. and freedoms of churches and contributions may be made to clergy throughout the U.S.

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 65 udge Neal E. Merriott of Palm harles D. Williams III of JHarbor, Florida, died July 8. CAnthony, Kansas, died July 1. He received his bachelor’s degree He was born April 11, 1960, in from OSU and his J.D. from the Anthony. Mr. Williams received his OU College of Law in 1964. Judge J.D. from the TU College of Law in Merriott served as a McCurtain 1994. He served as past master and County district judge from 1972 to past district deputy grand master 1979 and practiced law in Atoka of the Anthony Masonic Lodge County for 25 years. He was #200. He was a member of the appointed an associate district Anthony Kiwanis Club, serving as judge in the 25th Judicial District past president, past lieutenant gov- in Atoka County in 2003. ernor and president of the Kansas Kiwanis Foundation. Memorial velyn B.L. Phyffer of Las Vegas contributions may be made to the Edied July 11. She received her Anthony Masonic Lodge #200, J.D. from the OU College of Law Anthony Kiwanis or First Baptist in 1981. Church of Anthony.

obert Unruh II of Tulsa died Douglas Williams of RMay 29, 2017. He was born J. Woodward died Aug. 7. He Nov. 16, 1929, in Tulsa. Mr. Unruh received his J.D. from the OU attended Will Rogers High School, College of Law in the late 1960s where he played on the golf team. and was in the first class of legal He captained the TU golf team interns to be licensed by the for three years while earning his Oklahoma Supreme Court. Mr. bachelor’s degree. He received his Williams was a special agent with J.D. from the TU College of Law. the FBI for four years, working After graduating, he was in the at offices in Washington D.C., U.S. Army with the 10th Mountain Birmingham, Alabama and Los Division for two years and was sta- Angeles. He was the voice of tioned in Germany. Following his Woodward’s K-101 Morning Show service, he returned to Oklahoma and received a Marconi Award to coach TU’s golf team. Mr. Unruh for Radio Personality of the Year. was later inducted into TU’s Athletic He served as president and CEO Hall of Fame for his achievements of Omni Communications Inc. in golf, which included winning for 40 years and the president 152 golf championships. He also and general manager of Omni worked for the Tulsa Metropolitan Media Group. Mr. Williams was Utility Authority for over 45 years a member and former president as legal counsel. of the Oklahoma Association of Broadcasters. Memorial contribu- tions may be made to the Classic Bowl Foundation.

avid L. Wilson of Stigler died DJune 14. He was born Sept. 3, 1949, in Roff. Mr. Wilson received his J.D. from the OU College of Law in 1985.

66 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

2020 ISSUES OCTOBER DECEMBER Bar Convention Wellness Editor: Carol Manning Editor: Melissa DeLacerda [email protected] NOVEMBER Deadline: Aug. 1, 2020 Alternative Dispute Resolution Editor: Aaron Bundy [email protected] Deadline: Aug. 1, 2020

2021 ISSUES

JANUARY AUGUST Meet Your Bar Tax Law Association Editor: Tony Morales Editor: Carol Manning [email protected] Deadline: May 1, 2021 FEBRUARY Marijuana and the Law SEPTEMBER Editor: Virginia Henson Bar Convention [email protected] Editor: Carol Manning Deadline: Oct. 1, 2020 OCTOBER MARCH DUI Probate Editor: Aaron Bundy Editor: Patricia Flanagan [email protected] patriciaaflanaganlaw Deadline: May 1, 2021 [email protected] Deadline: Oct. 1, 2020 NOVEMBER Elder Law APRIL Editor: Luke Adams Law Day [email protected] Editor: Carol Manning Deadline: Aug. 1, 2021

MAY DECEMBER Personal Injury Labor & Employment

EDITORIAL CALENDAR EDITORIAL Editor: Cassandra Coats Editor: Roy Tucker cassandracoats@leecoats. RTucker@muskogeeonline. com org Deadline: Jan. 1, 2021 Deadline: Aug. 1, 2021

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

68 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL

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70 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL POSITIONS AVAILABLE POSITIONS AVAILABLE

ASSOCIATE ATTORNEY Graves McLain is an AV rated personal injury firm in Tulsa. We seek a 0-3 year Associate Attorney with strong writing skills and an interest in the medical Assistant General Counsel science aspect of cases. MidFirst Bank, one of the largest privately held finan- All candidates should have: cial institutions in the United States, is currently seeking • Strong writing skills a results-oriented professional to join our Legal team. • License to practice law in Oklahoma This position, which will report to the Deputy General • 0-3 years legal experience Counsel-Litigation, will be responsible for direct man- • Solid work ethic and integrity agement of legal functions surrounding commercial • Self Starter loan workouts and collections (special assets), as well Benefits as providing a supporting role with respect to enter- • Medical/Dental/Vision prise-wide management of litigation matters. • HSA contribution The qualified candidate will possess a law degree • 401k with match from an ABA-accredited law school and must have 3-5 To Apply: years of experience in litigation. Commercial loan work- No phone calls, please. Please send resume and out and collection experience is preferred. The quali- writing sample in PDF format with cover letter to fied candidate will possess excellent issue spotting, [email protected]. risk assessment and problem-solving skills, as well as Thank you for your interest in this position, I look strong written and verbal communication, and inter- forward to hearing from you! personal (including negotiation) skills. Excellent orga- nizational skills and attention to detail are required. If you are interested and would like to learn more NORMAN BASED FIRM IS SEEKING A SHARP AND about this position, please visit our website to com- MOTIVATED ATTORNEY to handle HR-related mat- plete an on-line application: ters. Attorney will be tasked with handling all aspects www.midfirst.jobs JOB ID 12250 of HR-related items. Experience in HR is required. Firm Equal Opportunity Employer- M/F/Disability/Vets offers health/dental insurance, paid personal/vacation days, 401(k) matching program and a flexible work schedule. Members of our firm enjoy an energetic and WATKINS TAX RESOLUTION AND ACCOUNTING team-oriented environment. Position location can be FIRM is hiring attorneys for its Oklahoma City and for any of our Norman, OKC or Tulsa offices. Submit Tulsa offices. The firm is a growing, fast-paced setting resumes to [email protected]. with a focus on client service in federal and state tax help (e.g. offers in compromise, penalty abatement, NORMAN BASED LAW FIRM IS SEEKING SHARP, innocent spouse relief). Previous tax experience is not MOTIVATED ATTORNEYS for fast-paced transactional required, but previous work in customer service is pre- work. Members of our growing firm enjoy a team atmo- ferred. Competitive salary, health insurance and 401K sphere and an energetic environment. Attorneys will be available. Please send a one-page resume with one-page part of a creative process in solving tax cases, handle an cover letter to [email protected]. assigned caseload and will be assisted by an experienced support staff. Our firm offers health insurance benefits, THE OKLAHOMA BAR ASSOCIATION HEROES pro- paid vacation, paid personal days and a 401K matching gram is looking for several volunteer attorneys. The need program. No tax experience necessary. Position location for FAMILY LAW ATTORNEYS is critical, but attorneys can be for any of our Norman, OKC, or Tulsa offices. from all practice areas are needed. All ages, all counties. Submit resumes to [email protected]. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information or to sign up, contact 405-416-7086 or [email protected].

THE OKLAHOMA BAR JOURNAL SEPTEMBER 2020 | 71 The Back Page Dancing Alone By Travis Pickens

HE CANADIAN COMEDY instantly to our friends, to some in companies, agencies, firms and Tseries Schitt’s Creek tells the extent our families and to our courts that have operated more story of the Roses, a monied larger menagerie of colleagues and like a family, complete with occa- family that loses its fortune. They characters. Finding those magical sional dysfunction, but overall, are forced to relocate to a small “barn dance” moments and find- with real care and mutual concern. town the father had bought his ing gratitude within the pandemic Even alone, we can be grateful son as a joke. Isolated from most bubble is difficult. For most, a for the significance of our profes- people, even themselves, by their blind proclamation that “There sion. As lawyers, we have always former wealth and extravagant is a reason for everything,” does been in the middle of making lifestyle, the family slowly learns not work. After all, so many have civilizations and managing them, the importance of authentic con- lost their lives or perhaps a close and that, despite the virus, hasn’t nections with each other, friends friend or family member. No obvi- changed. The world is now evolving and even the off-beat, otherwise ous “reason” in that. We are left in in some dramatic ways, and law- ordinary folks that play big roles a strange and sometimes terrify- yers will again be at the center of in their lives. One season ends in ing time, waiting for a vaccine. things, representing the oppressed a barn dance, where the Roses, at Like Glinda the Good Witch and privileged, the ordinary and last, drop their designer luggage of told Dorothy that she herself had extraordinary, the old ideas and judgments, bitterness and regrets the power to go back to Kansas, the new. Almost nothing important and join in. They are grateful for we have the power within our- happens without our involvement their acceptance by the town and selves to find gratitude. In these somewhere or somehow. now see everyone and everything often-solitary days, we can be And again, alone we can be through new, wiser eyes. glad to still practice and make a thankful that like the characters We are all emotionally isolated living, able to work for ourselves, of Schitt’s Creek, we will one day now by a pandemic. It has caused sometimes with just a smartphone come together again with fresh us to lose connections almost and computer. Many of us work perspectives and, at least momen- tarily, drop our insecurities and pains because they will not seem so significant then. There will be barn dances aplenty, careless and easy, intimate and fun – the kind with human touch and close con- versations, with drinks and smiles, great music and every form of love. Gratitude will come easy. That day has not yet come but will. For now, we must learn to dance alone, with gratitude, and if there is indeed a reason for the pandemic, maybe that is it.

Mr. Pickens practices in Oklahoma City.

72 | SEPTEMBER 2020 THE OKLAHOMA BAR JOURNAL