Oklahoma Bar Journal Theme Issue

Volume 82 u No. 2 u January 15, 2011

ALSO INSIDE • Pledges to a Charity • Puzzling Predicaments in Probate • Benefits of OBA Membership • Meet the New OBF President

OBA President Deborah A. Reheard

Fellers Snider Law Firm congratulates Eric Eissenstat

on his new position as Sr. Vice President and

Chief Legal Officer at Continental Resources

and thanks him for 27 years of excellence.

OKLAHOMA CITY TULSA (405) 232-0621 (918) 599-0621

www.FellersSnider.com

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 105 OBA Exclusive

color lithograph • available now • 11” x 15” color lithograph • to view in color see www.okbar.org • $25 for unsigned print or $45 for signed print, plus $6 certified mail costs (no mailing charges if picked up at Oklahoma Bar Center)

Name ______Make check payable to the OBA and mail entire page to: OBA, P.O. Box 53036 OBA #______Oklahoma City, OK 73152-3036 For p Visa or p Master Card Street Address* ______Fax: (405) 416-7001 City______State_____ Zip ______Credit Card # ______Exp. Date ______unsigned print(s) @ $25 each $ ______plus $6 certified mail costs if OBA is to mail Authorized Signature ____ signed print(s) @ $45 each $ ______plus $6 certified mail costs if OBA is to mail ______(no mailing charges if picked Total $ ______Questions: call Debbie Brink, (405) 416-7014 up at Oklahoma Bar Center) or E-mail [email protected]

106 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Theme: pg. 160 Meet Your Bar Association Homestead and Spousal Rights OBA Exclusive contents Departments January 15, 2011 • Vol. 82 • No. 2 108 From the President 169w La Practice Tips 174 Ethics/Professional Responsibility 176 OBA Board of Governors Actions 178 Oklahoma Bar Foundation News 181 Lawyers for Heroes color 183 Access to Justice 185 Young Lawyers Division lithograph 187 Calendar 189 For Your Information • available now 191 Bench and Bar Briefs • 11” x 15” color lithograph 194 In Memoriam • to view in color see 121 Editorial Calendar www.okbar.org 200 The Back Page • $25 for unsigned print or $45 for signed print, plus $6 certified mail costs Plus (no mailing charges if picked up at Oklahoma Bar Center) 147 Pledges to a Charity: Can They Be Enforced and When Should They Be? By Gary C. Clark and M. Brandon Meyer Cover Photo: Jeff Kelton 154 Determining Heirs-at-Law Name ______Make check payable to the OBA and mail entire page to: By Judge Linda Morrissey and Julie Bushyhead OBA, P.O. Box 53036 OBA #______Oklahoma City, OK 73152-3036 160 Homestead and Spousal Rights By Judge Linda Morrissey and Julie Bushyhead For p Visa or p Master Card Features Street Address* ______164 Probate and Oil and Gas Fax: (405) 416-7001 111 Meet 2011 OBA President Development Deborah Reheard City______State_____ Zip ______Credit Card # ______By Judge Linda Morrissey and Julie Bushyhead By Lori Rasmussen Exp. Date ______115 OBA Officers and Board ____ unsigned print(s) @ $25 each $ ______of Governors plus $6 certified mail costs if OBA is to mail Authorized Signature 122 OBA Departments and the ____ signed print(s) @ $45 each $ ______Member Services They Provide pg. 147 plus $6 certified mail costs if OBA is to mail ______131 OBA Membership Benefits Pledges to a Charity (no mailing charges if picked Total $ ______Questions: call Debbie Brink, (405) 416-7014 137 OBA Websites: What Information up at Oklahoma Bar Center) or E-mail [email protected] Do They Provide? 138 OBA Sections and Their Leadership

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 107 FROM THE PRESIDENT

Bar to Focus on Military Assistance By Deborah Reheard

I am proud to be a lawyer. We as attorneys have a unique opportunity to serve, whether Our profession remains a noble and honorable one, through service to our military though tarnished throughout history for a myriad of members and veterans, the home- reasons. But just like charity, pride begins at home. less or the hungry. We can serve If we are not proud of ourselves and our profession, our communities through civic why should we expect others to be proud of who we organizations, service groups, are, what we do and our accomplishments? state and local government offices, The best way to show our pride in our profession is and volunteer work. We can show to use the unique skills, training and traits we have as our own little corner of the world lawyers to help where needed. Courage, hope, honor, how proud we are to be lawyers. compassion and sacrifices have been the As I begin my glory of our profession. It is up to us as year as president of lawyers not only to seek justice but to this august organi- speak it, act it, exemplify it. “We as zation, I do so not In 2011, nearly 4,000 men and women only with pride but from the great state of Oklahoma alone attorneys with great humility. will be deployed to Afghanistan and have a Humility is about other places unknown to fight for those maintaining the freedoms embodied in that same Consti- unique pride we have in tution that we as lawyers have sworn to our profession — uphold. These soldiers need our help opportunity who we are, what now, while they are there we do and our and when they return. In to serve…” accomplishments. addition, there are thou- It is a lack of arro- sands of soldiers, sailors, gance, not a lack of airmen and Marines who aggressiveness nor have served this country selflessly who a lack of advocacy. Our profession deserve the benefit of our time and our has suffered damage one incident special skills and training as they reinte- at a time. It can be restored one grate into society. And we cannot forget good work at a time. those who have fought in previous conflicts and wars who gave no less than our We must maintain our pride in servicemen and women are giving today. who we are, what we do and our achievements. Pride in our work Thus was born Oklahoma Lawyers for and pride in our service. America’s Heroes. An insert is included in this bar journal explaining more about this I am proud to be a lawyer, President Reheard program and the OBA’s special relation- proud to serve as your president, practices in Eufaula. and proud to work with you and [email protected] ship with Pros 4 Vets, a veterans advocacy (918) 689-9281 group started right here in Oklahoma by for you. an Oklahoma lawyer. It is not only a privi- lege to come to the legal assistance of this nation’s military members, it is the right thing to do.

108 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 OFFIC ERS & BOARD OF GOVERNORS Deborah A. Reheard, President, Eufaula Cathy M. Christensen, President-Elect, Oklahoma City events Calendar Reta Strubhar, Vice President, Piedmont Allen M. Smallwood, Immediate Past President, JANUARY 2011 Tulsa Martha Rupp Carter, Tulsa 17 OBA Closed – Martin Luther King Jr. Day Observed Charles W. Chesnut, Miami 18 OBA Bar Center Facilities Committee Meeting; 2 p.m.; Oklahoma Renée DeMoss, Tulsa Gerald C. Dennis, Antlers Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Glenn A. Devoll, Enid Judy Hamilton Morse (405) 235-7759 Steven Dobbs, Oklahoma City OBA Civil Procedure and Evidence Code Committee Meeting; O. Chris Meyers II, Lawton Lou Ann Moudy, Henryetta 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: D. Scott Pappas, Stillwater James Milton (918) 591-5229 David A. Poarch Jr., Norman 19 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Roy D. Tucker, Muskogee, Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 Chairperson, OBA/Young Lawyers Division OBA Women in Law Committee Meeting; 3:30 p.m.; Oklahoma Bar BAR Center Staff Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: John Morris Williams, Executive Director; Deborah Bruce (405) 528-8625 Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational 20 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Programs; Carol A. Manning, Director of Center, Oklahoma City and OSU Tulsa; Contact: Barbara Swinton Communications; Craig D. Combs, Director of (405) 713-7109 Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance OBA Bar Association Technology Committee Meeting; 3 p.m.; Program; Beverly Petry Lewis, Administrator Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Gary Clark MCLE Commission; Jane McConnell, Coordinator (405) 744-1601 Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, 21 Oklahoma Bar Foundation New Trustee Orientation; 10:30 a.m.; Debbie Maddox, Ted Rossier, Assistant General Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy Counsels; Katherine Ogden, Staff Attorney, (405) 416-7070 Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Oklahoma Bar Foundation Trustee Meeting; 1 p.m.; Oklahoma Bar Manni Arzola, Debbie Brink, Stephanie Burke, Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 Brenda Card, Morgan Estes, Johnny Marie OBA Unauthorized Practice of Law Meeting; 1:30 p.m.; Oklahoma Floyd, Matt Gayle, Brandon Haynie, Bar Center, Oklahoma City with teleconference; Contact: Deborah Reheard Suzi Hendrix, Misty Hill, Debra Jenkins, Amy Kelly, Jeff Kelton, Durrel Lattimore, (918) 689-9281 Debora Lowry, Heidi McComb, Renee 22 OBA Law-related Education We the People State Finals; Montgomery, Wanda Reece-Murray, Lori 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell Rasmussen, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough (405) 416-7024 EDITORIAL BOARD 24 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Contact: D. Michael O’Neil Jr. (405) 239-2121 Melissa DeLacerda, Stillwater, Associate Editors: 26 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Dietmar K. Caudle, Lawton; Judge Sheila Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Condren, Claremore; Sandee Coogan, Norman; Emily Duensing, Tulsa; Craig M. Hoehns, Patricia Podolec (405) 760-3358 Elk City; Pandee Ramirez, Okmulgee; For more events go to www.okbar.org/calendar Joseph M. Vorndran, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau The Oklahoma Bar Association’s official website: NOTICE of change of address (which must be www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082011 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association (405) 416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free (800) 522-8065 FAX (405) 416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education (405) 416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel (405) 416-7055 July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, General Counsel (405) 416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education (405) 416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers (800) 364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program (405) 416-7008 tions are $55 per year except for law students registered with the Mandatory CLE (405) 416-7009 Oklahoma Bar Association, who may subscribe for $25. Active mem- OBJ & Communications (405) 416-7004 ber subscriptions are included as a portion of annual dues. Any Board of Bar Examiners (405) 416-7075 opinion expressed herein is that of the author and not necessar- Oklahoma Bar Foundation (405) 416-7070 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 109 President Reheard’s Family (from left): nephew Clinton Crane, sister Diane Crane, niece Kristin Crane (holding Sassy the Yorkshire terrier), “I’m your huckleberry!” brother-in-law Rick Crane, brother Don Reheard, nephew Brice Reheard, Deborah Reheard, age five, Dallas the Dalmatian, sister-in-law Tamara Reheard, President Deb sporting her favorite outfit Reheard, Shelby the Sheltie, niece Leslie Reheard, husband Dale Gill, Spud and Lone Ranger hat at the Jack Russell terrier the family farm.

President Reheard riding the train to Fort Worth for her mom’s 65th birthday, Deborah Reheard, age two, and her parents, with niece Kristin. Gladys and Tom Reheard While chairing the Judicial Nominating Commission, Deborah Reheard participated in the appointment process for four of the current Oklahoma Supreme Court justices. The four are pictured here with President Reheard, along with Justice Joseph Watt to her right. (From left) Justice James Edmondson, Justice Steven Taylor, Justice Tom Colbert and Justice James Winchester

110 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Meet Your Bar Association Meet 2011 OBA President Deborah Reheard Legal Assistance for Military to be Main Emphasis By Lori Rasmussen “ ardworking” has been a defining characteristic of new HOBA President Deborah Reheard since her childhood in Vinita, where she grew up on a dairy farm just outside the Northeastern Oklahoma community. She credits her small- town upbringing, along with her parents, for instilling her with good common sense and the strong work ethic she applies in her law practice and personal life today. “Dad milked cows everyday at 6 a.m., working a herd of 100 head and farming 2,000 acres,” the Eufaula attorney said. “My parents worked very hard so we would have it better than they did.” From childhood in a two-room schoolhouse she moved on to Vinita High School, where she was a member of the first ever Blue Pride Drill Team. “We thought we were the Dallas Cow- boys Cheerleaders,” she said. It was winning an essay contest and a trip to Washington, D.C., that convinced Ms. Reheard to put pompoms aside and instead pick up a pen to pursue a Deborah Reheard, age four, models for career in journalism. a “Miss Easter” calendar page. Her lifelong love for animals initially sent her to Oklahoma State University where she planned to focus her studies on veterinary medicine and agricultural journalism. Ultimate- Reheard said, “I thought to myself ‘I can do that,’ and realized I would like it. When I was ly she completed her studies at Northeastern 27 years old, the opportunity came along to go State University in Tahlequah, working all the to the TU College of Law full time, so I took it.” while for her small-town newspaper. She wrote and served as editor for a number of communi- While in school, she interned at the city ty newspapers after graduating, reporting on attorney’s office in Tulsa, eventually landing a crime and courts. That was where her interest full-time job there after graduating and passing in the law began to take shape. President the bar exam in 1987. Later she worked as an

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 111 Personal Trivia

Favorite rock song: “Fooled Around and Fell in Love” First job: Retirement party for former law partner Rockey Summer waitress at the Boydston, 1995; (from left) Beth Boydston, Justice Vinita Country Club Alma Wilson, Rockey Boydston, Deborah Reheard Favorite lawyer in fiction: assistant district attorney in Craig, Mayes, Rogers, Ottawa Atticus Finch and Delaware counties. “My mentor, Rockey Boydston, gave me the opportunity to take over his solo practice in Natural talent you would like Eufaula in 1991,” she said. “I’ve been there ever since.” to be gifted with: President Reheard says the majority of her practice is Musicality focused on family law and criminal defense, but she takes on a wide variety of cases. “In a small town you draw a Favorite late-night snack: bit of everything. What draws me to the law is the advo- Blue Bell Moo-llennium cacy work, and what I enjoy most is trial work. What I Crunch love about being a lawyer in a small community is that it’s about problem solving and helping people.” What is the greatest invention She believes her nearly two decades in private practice of all time: are strong qualifications for her leadership of the Okla- Electricity homa Bar Association this year. If a movie was made of your “The law is a tough business to be in, so we need to be able to provide our members with the services they need life, who would play you? to be effective in their practices,” she said. “I travel Jodie Foster, a cross between her around the state to work on cases, I don’t practice in character in “Silence of the one county, and I am out of Lambs” and her character in my office a lot in court. I “Maverick” think I’ve got a good handle on what the vast Most prized possession? majority of the attorneys My wedding ring, it was want, need and think my mom and dad’s. I’ve had about our association.” it for 22 years. It also has the President Reheard is a diamond solitaire my dad self-described “bar junk- gave my mom on their 35th ie,” having served on the wedding anniversary. OBA Board of Governors since 2006. She also Ideal vacation spot: served a six-year term on If not my ranch, then Hawaii the Judicial Nominating Rare family photo: (from left) Commission, including father Tommy, sister Diane, mother serving as its chair- Gladys, brother Donnie, Deb

112 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 person, and is a frequent CLE presenter on the topic of bar disciplinary proceedings. In fact, she estimates for the Favorite movie: last 10 years, almost all of her Tombstone — one of the last spare time has movies I went to see in the been spent on bar theatre. activities. “When I am doing trial Most frequently visited work, there are Deb and Dale with “My Lady Diamond” Website: clients, there is in November 1988. This horse was a Okbar.org - mostly to look up opposing counsel, world-famous American quarter horse members to find people to people are not that was the dam (mother) of several always on their volunteer! world champions. best behavior and there are interac- Best Halloween costume: tions that lead to problems,” she said. “There are just a lot I put on a hefty garbage bag, of people who are mad at each other. When I am doing then stuck things like empty bar work, I am around other attorneys who love the hamburger wrappers on the profession and the association. It’s a way to interact outside, and went as a with other attorneys advocating toward a common “trashy woman.” goal rather than butting heads in a courtroom.” President Reheard says taking a leadership role was Favorite food: important to her personally because she had specific proj- Anything with chocolate! ects she wanted to work on as bar president. Providing legal assistance for military service members and veterans Biggest pet peeve: is her top priority. People who have the ability to “I was thinking about things I need to do and my term work and don’t or won’t happened to coincide with a year our state will be sending 4,000 troops to Afghanistan,” she said. “So we created Favorite restaurant: Oklahoma Lawyers for Ameri- ca’s Heroes, working with the Trappers in Oklahoma City Pros for Vets organization to provide legal services. I had limited Most marked characteristic: exposure to the military growing My laugh! up, but I was seeing so many people come through my office Best thing about the town that we could trace a lot of their where you live: problems to their military service. Service members have We just got a Super Walmart made sacrifices for us. We need in Checotah… and they even to do a better job of helping do pedicures! them when they come back. We have also started a special What are the most important committee to deal with the unau- qualities a lawyer can have? thorized practice of law. Oklaho- Work ethic, honesty and mans are being taken in by integrity. Deb Reheard ready to cheer unscrupulous people pretending on Vinita High School as a to be attorneys, and we are going member of the Blue Pride to put a stop to it. It’s about pro- Drill Team tecting the public.”

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 113 With a busy legal practice of her own to your hand. The little girl tells me she’d like maintain in Eufaula, it’s natural to wonder me to have one, because I was the one mak- whether there are enough hours in day to ing her ‘daddy’ her real father for the rest of accomplish all the goals President Reheard her life. And that’s how I got Tater, who is has laid out for her term. the meanest damn dog you’ve ever seen in your life.” “I have great staff and family support,” she responds. “I have planned for this. I have a President Reheard believes her competence long-time assistant, Kim Wegner, and another as an attorney along with her desire to work very competent attorney in my office, Steve exceptionally hard is what best qualifies her Barnes, plus a part-time secretary, Cindy Bacon. to lead the OBA. She notes that 2011 is a his- We will adjust and it will all work out.” toric year for the association; for the first time in its 106 years a woman is serving in the President Reheard has been married 22 three top spots on the Board of Governors: years to Dale Gill, who is originally from herself as president along with Cathy Chris- Texas. Together they own a working ranch in tensen serving as president-elect and retired Checotah, where they breed, train, and show Judge Reta Strubhar serving as vice president. reining and working cow horses. Their work recently extended from the equine to the “I watched Melissa (DeLacerda, 2003 OBA canine, when they began breeding Fell terri- president) and Mona (Salyer Lambird, 1996 ers, hunting dogs originating in England and OBA president) and saw what they did to pro- Ireland. The couple occasionally travels across mote not just women but promote all attorneys, the Atlantic together to import the dogs to and I thought we had come a long away. I’ve Oklahoma. In addition, President Reheard has never wanted to be the first ‘woman’ anything. four pet dogs of her own. Bruiser is a Fell ter- I just go out and do what I need to do. Some- times because I didn’t know any better,” Pres- ident Reheard laughs. “I think we’ve come to the point where we are taking leadership roles not because we are women, but because we are great attorneys who just happen to be women.”

President Reheard attending the 2009 Board of Governors “Has Been” party with husband Dale.

rier who was abandoned by his mother. Maxie and Zeb are Jack Russell terriers the couple rescued from owners who were unprepared for the challenges of the rambunctious breed. Then there is the alpha dog, Tater, a rat terrier who came to the couple through a case of mis- taken identity. “I was doing an adoption for a family who raised rat terriers,” she explained. “I told the mother that my husband always wanted one of those, even though what he really wanted was a completely different kind of dog. But Deborah Reheard, age four, sits atop

then this little girl comes into my office with a stuffed horse at the Buffalo Ranch,

a box of puppies about eight weeks old, so a tourist trap in Afton. small you could hold them in the palm of

114 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Meet Your Bar Association Volunteers Who Guide Your Association

o Background: Born in o Background: Graduated Norristown, Penn. and from Bartlesville High moved to Tulsa in 1973; School; attended college; graduated from Tulsa taught English and busi- Memorial, Class of ness in Oklahoma City 1975; married to John J. and Mustang public (Jim) Ditmars Jr. since school systems; attended 1994; three sons Blake law school and then Christensen, Adam worked as an assistant Christensen and John attorney general, assistant district attorney and Ditmars III was then appointed to o Education: B.S., Oklaho- the district court bench in Cathy ma State University, 1982; Reta M. Canadian County in J.D, Oklahoma City Uni- 1984; appointed as first Christensen versity, 1986 Strubhar woman in Oklahoma to President-Elect Vice President sit on Oklahoma Court Oklahoma City o First job? During the Piedmont of Criminal Appeals in summer after eighth 1993; resigned as an grade, I worked as a camp counselor. After working active judge in 2010 and now conduct mediations at the camp, I would walk to a nearby shopping cen- and handle a few probates ter and work evenings at Baskin-Robbins Ice Cream. o Education: Bachelor’s of education with minor in accounting, Phillips University; master’s in Eng- o Nobody knows I... Wish I could sing lish, UCO; juris doctorate, OCU School of Law o Favorite lawyer in fiction? Atticus Finch o First job? While attending college I was a waitress in a hotel restaurant. My first “real” job was for o Natural talent you would most like to be gifted J. Edgar Hoover at the FBI in Washington, D.C. with? Musical talent o Nobody knows I... Would love to play the banjo o Favorite rock song? “Don’t Stop Believing” by o Favorite lawyer in fiction? Portia in Shake- Journey speare’s “Merchant of Venice” for her high self- o Favorite late-night snack? Pretzels and cold milk esteem, her intelligence and her manipulative abilities o Greatest invention of all time? The telephone o Natural talent you would most like to be gifted o Best gift ever received? My children with? Ability to sing on Broadway o Favorite rock song? “California Girls” by the o Best thing about the town where you live? The Beach Boys best thing about Oklahoma City has to be the o people! Favorite late-night snack? Peanuts o Greatest invention of all time? The alphabet o Historical event you wish you could have (I’m an ol’ English teacher!) witnessed? The end of World War II o Best gift ever received? Wonderful and perfect — o Most important qualities a lawyer can have? children and grandchildren! A reputation for honesty, compassion and a solid o Best thing about the town where you live? In work ethic. A sense of humor and great family Piedmont I was able to name several of the resi- and friends are also important. dential subdivisions and streets. (My husband does some residential development.) o Historical event you wish you could have witnessed? The swearing-in of Justice Sandra Day O’Connor to the U.S. Supreme Court in 1981 o Most important qualities a lawyer can have? Truthfulness and honesty above all else

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 115 o Background: Born and o Nobody knows I... Park in Sonic drive-ins to raised in Tulsa; hung chew ice and play Scrabble on my iPhone out a shingle as a solo o Favorite lawyer in fiction? Atticus Finch, practitioner in May of course. 1975 and that’s what o Natural talent you would most like to be gifted I’ve been doing ever with? A great singing voice or speed and since. strength o Education: Nathan Hale o Favorite rock song? “American Pie” or “I Want High School, bachelor’s to Hold Your Hand” in political science with a minor in history from o Favorite late-night snack? Pomegranate Allen OSU, law degree from fruit bars Smallwood TU College of Law o Greatest invention of all time? Printing press Past President o First job? Paper boy for o Best gift ever received? A 10-day hiking trip in Tulsa the Tulsa Tribune British Columbia! o Nobody knows I... o Best thing about the town where you live? “And nobody Running water and electricity ever will.” o Historical event you wish you could have wit- o Favorite lawyer in fiction? Atticus Finch nessed? Abraham Lincoln’s tenure as president o Natural talent you would most like to be gifted o Most important qualities a lawyer can have? with? Foot speed Integrity, service and intelligence o Favorite rock song? “Stand By Me” o Favorite late-night snack? Peanut butter o Background: I’m a o Greatest invention of all time? The bicycle third-generation Okla- homa country lawyer. o Best gift ever received? Four grandchildren! o Education: Miami High o Best thing about the town where you live? School; University of I’ve lived here all my life. Oklahoma (B.B.A.-1974; o Historical event you wish you could have J.D.-1977) witnessed? The bombing of Pearl Harbor, o First job? Working in Dec. 7, 1941 maximum security in a o Most important qualities a lawyer can have? mental hospital Ability to listen and patience o Nobody knows I . . . Watch “Swamp Log- o Background: After five Charles W. gers” on television years of practice with a Chesnut o Favorite lawyer in fic- Tulsa firm doing litiga- Governor - tion? Atticus Finch in tion and oil and gas District No. One “To Kill a Mockingbird” work, I entered public Miami o Natural talent you service with the Tulsa would like to be gifted City Attorney’s office. I with? The ability to served in that office for touch my toes when 19 years, and as the city standing upright attorney for the last four. I am now general o Favorite rock song? Almost anything by The counsel with the Tulsa Eagles – “Hotel California,” “Take It to the Martha City-County Health Limit” and “Desperado” Department but will o Favorite late-night snack? Eating Keebler’s Rupp Carter soon become a special Grasshoppers (thin mints) and a glass of milk Governor - judge in Tulsa County. o Greatest invention of all time? Water District No. Six o Education: Perry High purification Tulsa School; OSU – bache- o Best gift ever received? My mother teaching me lor’s of art with honors to read in English; OU College o of Law — juris doctor Best thing about the town where you live? Lack of traffic o First job? Painting neighbors’ garbage cans with o Historical event you wish you could have wit- flowers and peace signs for $10. (Why did I give nessed? Lincoln’s delivery of the Gettysburg it up?) Address

116 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 o Most important qualities a lawyer can have? o Background: Married to Honesty, being forthright and the ability to Rhonda Dennis, three problem solve children (Zack, Michael & Katie); Vietnam veteran, served in the o Background: Born and infantry, 1971; served in raised in Oklahoma; the Oklahoma State shareholder with Senate from 1980-1988; GableGotwals served on the Eastern o Education: B.A. summa Oklahoma State Univer- cum laude from OCU, sity Board of Regents J.D. with honors from for 11 years; practiced OU Gerald law at Dennis & o First job? Babysitting Dennis Branam since 1975 for 25 cents an hour Governor - o Education: Southeast o Nobody knows I… District No. Two High School, Oklahoma City; Southeastern State Renée Really love barbershop Antlers quartets College; OCU School of Law DeMoss o Favorite lawyer in fic- o Governor - tion? Vincent Gambini First job? Worked at a small grocery store when At large in the movie, “ My I was 13 Tulsa Cousin Vinny.” He o Nobody knows I… “They still don’t know.” made me laugh. o Favorite lawyer in fiction? Atticus Finch from o Natural talent you would like to be gifted with? “To Kill a Mockingbird” Photographic memory o Natural talent you would like to be gifted with? o Favorite rock song? Tie: “Freebird” by Lynyrd Good orator Skynyrd (love it or hate it) and “Let’s Stay o Favorite rock song? “Sound of Silence” by Together” by Al Green Simon and Garfunkel o Favorite late-night snack? Homemade choco- o Favorite late-night snack? None late cookies with milk o Greatest invention of all time? The computer o Greatest invention of all time? The wheel o Best gift ever received? My family o Best gift ever received? A birthday trip to o Best thing about the town where you live? Ireland The people o Best thing about the town where you live? o Historical event you wish you could have Tulsa’s wonderful natural setting complemented witnessed? Writing of the U.S. Constitution by our great architecture and museums o Most important qualities a lawyer can have? o Historical event you wish you could have wit- Honesty and integrity nessed? Signing of the Declaration of Independence o Most important qualities a lawyer can have? o Background: Born in Honesty and humility Altus o Education: OCU Law School o First job? Working in a lumber yard o Nobody knows I… Enjoy building stuff o Favorite lawyer in fiction? Perry Mason o Natural talent you would like to be gifted Glenn A. with? I wish I could Devoll “moonwalk” Governor - o Favorite rock song? District No. Four “Born to be Wild,” Enid theme song from the movie, “Easy Rider”

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 117 o Favorite late-night snack? I don’t snack o Background: Born and at night. raised in Shawnee; have o Greatest invention of all time? The automobile lived and practiced in Lawton since 1971 o Best gift ever received? A shotgun from a client o Education: Graduated o Best thing about the town where you live? The Shawnee High School people — the lawyers and judges in particular in 1962; OU undergrad- o Historical event you wish you could have uate, 1966; OU College witnessed? Signing of the Declaration of of Law, 1969; George- Independence town for LLM in tax, o Most important qualities a lawyer can have? 1971 Honesty and integrity o First job? Delivering O. Christopher newspapers for The Daily Oklahoman o Background: Raised in Meyers II orphanage in Missouri; Governor - o Nobody knows I: Once USMC/Vietnam veter- District No. Nine considered practicing an with two Purple Lawton in Texas Hearts; no good o Favorite lawyer in conduct medal! fiction? Atticus Finch o Education: Bachelor’s o Natural talent you would like to be gifted with? in sociology; master of Photographic memory public administration, o Favorite rock song? “Gimme That Old Time both from Mizzou; J.D. Rock ‘n’ Roll” from the OU College o Favorite late-night snack? Peanut butter and of Law crackers o Nobody knows I… Get Steven Dobbs o Greatest invention of all time? Beer Governor - beat by my wife in golf on a regular basis o Best gift ever received? My first bicycle At Large o Natural talent you o Best thing about the town where you live? Oklahoma City would like to be gifted Lawton is big enough to have all the conve- with? To be able to sing niences of a large city but small enough to and play an instrument avoid congestion. o Favorite rock song? “I Need A Hero” o Historical event you wish you could have o Favorite late-night snack? My wife’s chocolate witnessed? Landing on the moon chip cookies o Most important qualities a lawyer can have? o Greatest invention of all time? The wheel A desire to help your client, and the ability and skill to do it effectively. o Best gift ever received? A train set o Best thing about the town where you live? Friendly people o Background: Family o Historical event you wish you could have from northeastern Okla- witnessed? The birth of Jesus Christ homa — Miami, Com- merce, Vinita; raised in o Most important qualities a lawyer can have? Henryetta, returned Honor, courage, commitment, ethics and and opened my practice professionalism here in 1996 o Education: East Central University, OU College of Law o First job? No calls from child labor lawyers, Lou Ann please…I worked in my father’s pharmacy start- Moudy ing in at least the third Governor – grade. District No. Seven o Henryetta Nobody knows I… Would love to be a pilot

118 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 o Favorite lawyer in fiction? Definitely no charac- o Historical event you wish you could have wit- ter by John Grisham nessed? The deliberations leading to the U.S. o Natural talent you would like to be gifted with? Constitution Singing o Most important qualities a lawyer can have? A o Favorite rock song? I have so many — best caring nature, honesty, integrity, inquisitiveness, concert was John Cougar Mellencamp while I perseverance and respect for all people was in law school. o Favorite late-night snack? Pizza o Background: I was born o Greatest invention of all time? Microchip in Oklahoma but grew o Best gift ever received? An education (with no up in the California Bay student loans) Area in a small town of 2,500 people about 30 o Best thing about the town where you live? miles east of San Fran- Everybody knows me. cisco. Went in the Army o Historical event you wish you could have wit- out of high school; nessed? The debates at the Council of Nicaea — returned to Oklahoma you think our debates are important, these peo- for college and law ple decided what was to be in the Bible. school after I got out. o Most important qualities a lawyer can have? Been here since 1969. Integrity and common sense Married, two grown David A. sons and three grand- Poarch Jr. children. o Background: Born and o Education: B.A. Univer- raised in Stillwater, Governor - At Large sity of Central Oklaho- where my family has ma 1973; J.D. University had the Ford dealership Norman of Oklahoma 1977 since 1919; raised my o daughter in New York First job? When I was in high school, I worked before coming back to behind the counter at a laundry and cleaners. I marry my husband, closed up at 9 o’clock and made the bank depos- whom I have known it. Amazing what people leave in their clothing since sixth grade when they drop them off at the cleaners! Before that, I was a paper boy. Less intrigue; more o Education: Graduated dogs, though. from C.E. Donart High o D. Scott School in Stillwater; Nobody knows I…Wear high heels… I’m B.A. in history from kidding! Seriously, though, I do wear lifts. Pappas OSU; J.D. from Ford- Gotcha! (Obviously, I don’t have an answer for Governor – ham University School this question!) District No. Eight of Law, New York o Favorite lawyer in fiction? Atticus Finch, of Stillwater o First job? Serving at course. Horace Rumpole, equally, but for differ- banquets for the OSU ent reasons. And who could overlook Vincent Catering Department when I was 14 years old. LaGuardia “Vinny” Gambini defending his Had to wear a hairnet! cousin in a murder trial…wearing a used ’77 baby blue tuxedo? o Nobody knows I… Am a wonderful tour guide o – especially if you want to see all the sites in Natural talent you would like to be gifted with? NYC in a long weekend! To sing bass in a quartet, without being sharp. I’m a tenor. o Favorite lawyer in fiction? Atticus Finch from o “To Kill A Mockingbird” Favorite rock song? “Bridge Over Troubled Water,” among others o Natural talent you would like to be gifted with? o Peacemaking and diplomacy Favorite late-night snack? Popcorn or graham crackers; nothing particularly healthy o Favorite rock song? Most all from the band, o Chicago Greatest invention of all time? Microchip technology. But the wheel, fire and air conditioning o Favorite late-night snack? Microwaved M&Ms probably deserve honorable mention. o Greatest invention of all time? Electricity o Best gift ever received? Unconditional love o Best gift ever received? My daughter o Best thing about the town where you live? o Best thing about the town where you live? The students leave in the summer (and over The people Christmas break).

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 119 o Historical event you wish you could have o Background: I grew up witnessed? The debate giving rise to, and the in Bartlesville; went to signing of, the Declaration of Independence college and law school o Most important qualities a lawyer can have? in California and Honesty and integrity, coupled with a desire to worked for a large law serve others firm in San Francisco for several years following graduation from o Background: Born Sept. law school. I am mar- 13, 1949, in Tipton, ried and have two sons, Okla.; married to Bren- ages 12 and 14. We da Kaye Rivas, 42 years; moved back to Oklaho- two children, Ryland II, ma in 1991, and I have OCU Law, and Mere- Susan S. enjoyed living and dith Kaye Brockman, Shields practicing law in OU Law; three grand- Oklahoma City since Governor - that time. children; member of the District No. Three Comanche Indian Tribe, o Oklahoma City Education: Stanford first tribal member law- University and UCLA yer; former Magistrate School of Law for the Court of Indian o First job? Worked in the children’s room of the Ryland L. Offenses, Chief Justice Bartlesville Public Library Cheyenne and Arapaho Rivas Supreme Court, 1998- o Nobody knows I… Hate black olives Governor - 2009; practice in civil, o Favorite lawyer in fiction? Vincent “Vinny” District No. Five Indian and criminal Gambini, from the movie, “My Cousin Vinny” Chickasha law, Chickasha City o Natural talent you would most like to be gifted Council 1995-1999; with? I wish I were a better tennis player. Board of Directors, o Favorite rock song? “Thunder Road” by Bruce Bank of Verden Springsteen o Education: Lawton High School – 1967; Oklaho- o Favorite late-night snack? Popcorn ma University, B.B.A., majors in economics and finance - 1971; OU College of Law - 1974 o Greatest invention of all time? The Internet (and now, my iPad) o First job: I started working with my dad in the cleaners, washed clothes and ran a press. o Best gift ever received? Artwork painted by my children o Nobody knows… I listen to classical music o Best thing about the town where you live? The o Favorite lawyer in fiction? Atticus Finch renaissance of downtown Oklahoma City and o Natural talent you would like to be gifted with? Bricktown Writing music o Historical event you wish you could have wit- o Favorite rock song? “Gotta Serve Somebody” nessed? I would like to have been part of the o Favorite late-night snack? Homemade banana Lewis and Clark Expedition. milk shake o What are the most important qualities a lawyer o Greatest invention of all time? Alphabet can have? Integrity and the willingness to work o Best gift ever received? Love and patience of hard to get the best results for your clients wife and family o Best thing about the town where you live? I live in the country; it’s quiet. o Historical event you wish you could have witnessed? A study session with Socrates o Most important qualities a lawyer can have? Integrity, empathy, mercy, patience and justice

120 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 o Background: I grew up o Favorite lawyer in fiction? Elle Woods, of in Lexington, Okla., course attending public school o Natural talent you would like to be gifted with? there from kindergarten Being a math genius through high school. I o played in band and was Favorite rock song? “Bad Romance” Yes, Lady the only person I knew Gaga who had no interest in o Favorite late-night snack? Whataburger fries joining the FFA, despite o Greatest invention of all time? Air conditioning desperate pleas from o Best gift ever received? My sister was born the my dad. day before my fifth birthday. o Education: Lexington o Best thing about the town where you live? The Roy D. Tucker High School (1994); people Governor - UCO, B.A. in English (1998); TU, J.D. (2003) o Historical event you most wish you could have YLD Chair witnessed? The first ever lecture on the rule o Muskogee What was your first against perpetuities job? C.R. Anthony’s in Norman o Most important qualities a lawyer can have? Being able to tell when someone is lying… o Nobody knows I… particularly your witness Haven’t put up a Christmas tree in 10 years

Oklahoma Bar Journal Editorial Calendar

n April: n September: 2011 Law Day Bar Convention n February: Editor: Carol Manning Editor: Carol Manning Tort/Civil Litigation n May: n October: Editor: Leslie Taylor Real Estate and Title Law Labor and [email protected] Editor: Thomas E. Kennedy Employment Law Deadline: Oct. 1, 2010 thomas.kennedy@ Editor: January J. Windrix n March: oktax.state.ok.us [email protected] Criminal Law Deadline: Jan. 1, 2011 Deadline: May 1, 2011 Editor: Dietmar K. Caudle n August: n [email protected] November: Children and the Law Deadline: Jan. 1, 2011 Military Law Editor: Sandee Coogan Editor: Dietmar Caudle [email protected] [email protected] Deadline: May 1, 2011 Deadline: Aug. 1, 2011 n December: Ethics & Professional Responsibility If you would like to write Editor: Melissa DeLacerda [email protected] an article on these topics, Deadline: Aug. 1, 2011 contact the editor.

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 121 Meet Your Bar Association OBA Departments and the Member Services They Provide olunteer leaders may be the chief engineers who keep any professional association on track, but it is the staff who Vprovides the power to move forward. Member services are an essential part of the Oklahoma Bar Association. Learn more about what each department offers members, and put a name together with a face in photos of the employees who work for you — bar association members. Executive Director OBA Bylaws, Article IV, Section 4: (a). The Executive Director shall keep the roster of the members of the Association and of the House of Delegates entitled to vote therein. He or she shall record and be the custodian of the minutes, journal and records of the Associa- tion and of the House of Delegates and of the Board of Governors. (b). The Executive Director shall act as Trea- surer, and be the custodian of the funds of the Association. No funds shall be withdrawn except in the manner approved by the Board of Governors. (1) The expenditures of the Association shall be in accordance with the provisions of the Executive Director John Morris Williams and Rules Creating and Controlling the Oklahoma Executive Assistant Debbie Brink Bar Association as promulgated by the Oklaho- ma Supreme Court. as the House of Delegates, the Board of (2) The Executive Director shall maintain at all Governors or the President of the Association times a fidelity bond executed by a surety com- may direct. pany as surety, the amount thereof and the sure- Rules Creating and Controlling the OBA, ty to be approved by the Board of Governors. Article VI, Section 4: (c). He shall supervise the office of the Asso- The Executive Director shall perform such ciation and its personnel and shall see that the duties and services as may be required by these work of the Association is properly performed. Rules or the Bylaws and as may be directed by He or she shall also perform such other duties the Board of Governors or the President of the

122 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Association. He shall also keep a complete u providing monthly committee and section and accurate list of the members of the Asso- accounting reports upon request ciation; notify delinquent members and certify the names of delinquent members to the u ensuring the bar center interior and exterior Supreme Court as required by these Rules; facilities are maintained so members can take certify to the Supreme Court records and pride in their building other matters as provided by these rules. u maintaining and updating member roster Phone: (405) 416-7014 information u invoicing senior members and non- members for Oklahoma Bar Journal subscriptions

u managing the Legal Intern Program

u producing certificates of good standing for our members

u processing expense claims for OBA officers, YLD officers, and section and committee members Phone: (405) 416-7000 Membership: (405) 416-7080

ADMINISTRATION – (Front Row) Roberta Yarbrough, Communications Suzi Hendrix, Tracy Sanders and Wanda Murray; The Communications Department (Back Row) Director Craig Combs and Durrel has responsibility for the OBA’s “Doc” Lattimore member communications and external public relations efforts. Areas of major emphasis are:

Administration u publishing 34 issues of the Oklahoma Bar The responsibilities of the Administration Journal every year Department are multi-faceted, but its primary emphasis is handling finances, human resources, Annual Meeting planning, bar center operations and maintaining official membership information. Spe- cific duties include: u scheduling bar center meeting rooms u coordinating and scheduling meetings utilizing video conference equipment in Oklahoma City and Tulsa u assisting committees and sections with mailings to their members u providing mailing labels of bar members to committees and sections u tracking expenditures for all COMMUNICATIONS — Director Carol Manning, committees and sections Lori Rasmussen and Jeff Kelton

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 123 u assisting the Law Day Committee in u working with the Law Day Committee to accomplishing extensive Law Day statewide conduct statewide contests for Oklahoma activities and community service projects students, provide county Law Day that generate significant positive public chairpersons with both event and promotion recognition for the legal profession ideas for county celebrations, coordinate the statewide Ask A Lawyer community service u publishing the OBA Annual Meeting project in which volunteer attorneys give program and House of Delegates book and free legal advice to people who call in, promoting award winners, the meeting itself implement marketing strategies to promote and election results the Ask A Lawyer free legal advice and More specific duties that benefit members produce a one-hour, interview-style TV are: program, in cooperation with OETA (the u editing information submitted by and about state’s PBS affiliate) that shows how lawyers bar members for the FYI and Bench & Bar work to improve the lives of all Oklahomans Briefs section of the bar journal The department also assists the Awards u publishing the monthly E-News for OBA Committee, Disaster Response and Relief members with e-mail addresses Committee, Lawyers Helping Lawyers Assis- u expediting information requests from the tance Program Committee and Young Law- news media yers Division. u issuing news releases about association Phone: (405) 416-7004 events u assisting OBA committees, sections and divisions in publicizing their projects Continuing Legal Education to both members and the media u working with sections to publish short law articles related to the section’s focus u assisting sections and committees with placing and designing free ads in the bar journal to promote their activities to other members The department serves as a liaison for one board and several committees and assists in accomplishing their goals. Responsibilities include:

u working with the 10-member Board of Editors that reviews articles CLE — (Front Row) Heidi McComb, Director Donita submitted and plans for future Douglas and Stephanie Burke; (Back Row) Mark Schnie- theme-related Oklahoma Bar Journal dewent and Brandon Haynie issues; once articles are approved for publication, the staff has charge of editing, proofreading and layout OBA/CLE wants to be your continuing legal education provider. Call CLE Director u assisting the Communications Committee in Donita Bourns Douglas at (405) 416-7028 with its projects including overseeing the your ideas. publication of 16 brochures on such topics as divorce, landlord/tenant rights and estate Department services include: planning; Brochures are distributed free as a community service to individuals, libraries, u developing and producing over 150 live nonprofit organizations, etc., and staff seminars, webinars and webcasts handles the continuous demand for those u offering video replays of the live seminars materials to be mailed across the state

124 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 u developing and producing online video and audio seminars, including webcast seminars u offering recent seminar publications, digital book chapters and CDs for sale to association members u developing and producing CLE at the OBA Annual Meeting u coordinating with the Management Assistance Program to plan and administer the annual Solo and Small Firm Conference u coordinating with the Women in Law Committee to plan the annual Women in Law Conference u coordinating with OBA officers to plan leadership training for OBA members u coordinating with various OBA sections in the planning of OBA/CLE section cosponsored CLE seminars ETHICS COUNSEL – u attracting and securing nationally recognized Ethics Counsel Travis Pickens experts to present continuing legal education programming to OBA members the rules of professional conduct. Responsibil- u publishing volumes (non-seminar) to ities of the Ethics Counsel include: members to assist in their practice, including u answering ethics questions from members of form books, practice manuals and treatises the Oklahoma Bar Association u providing online registration for OBA/CLE u researching and writing ethics materials for to members the Oklahoma Bar Association website and u applying attendance credit electronically the Oklahoma Bar Journal to enable members to have an up-to-date u preparing and presenting CLE programs on view of accumulated OBA/CLE credit on the topics of ethics and professionalism My.Okbar u working with the Legal Ethics Advisory Phone: (405) 416-7006 Panel to produce practical written advice and opinions E-mail: [email protected] u monitoring attendance and compliance of Ethics Counsel diversion program attendees The Office of Ethics Counsel is a member- u creating, supervising and administering ship service available only to OBA members. training in the areas of ethics, It was created to assist members with conflict professionalism and trust accounting dilemmas, confidentiality questions, communication concerns and other ethical inquiries Phone: (405) 416-7055 unique to the profession. The Office of Ethics E-mail: [email protected] Counsel is completely autonomous from and independent of the Office of the General Counsel. Members seeking assistance with ethical questions are afforded an “attorney/ client” relationship with the full expectation of confidentiality of disclosed information. Through the Office of Ethics Counsel, Oklaho- ma Bar Association members can obtain informal guidance and advisory interpretations of

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 125 General Counsel The Office of the General Counsel is charged with the responsibility of: u reviewing and investigating allegations of lawyer misconduct or incapacity u reviewing and investigating allegations of the unauthorized practice of law u prosecuting violations of the Oklahoma Rules of Professional Conduct u administering the Clients’ Security Fund In addition to these enumerated duties, the Office of the General Counsel: u serves as liaison to the OBA Board of Governors advising the governing group on SUPPORT STAFF — (Front Row) legal matters Debi Lowry and Misty Hill; (Back Row) Laura Willis and Manni Arzola

u processes and approves the registration for attorneys from other jurisdictions u administers the trust account overdraft notification program

Phone: (405) 416-7007 Information Systems The Information Systems Department is responsible GENERAL COUNSEL — Katie Ogden, Loraine Farabow, for desktop computer sup- Ted Rossier, General Counsel Gina Hendryx and Debbie Maddox port to staff, network management of internal servers and externally accessible servers, Web application development and maintenance, mailing list management, development of association management system and database, network security, audio/visual support to staff, monitoring of evolving tech- nologies and assistance to all departments to utilize technology in their departments. The Information Systems Department’s functions are mostly of an internal nature; however, services directly benefiting members are: u providing a mailing list for each committee and section through the list servers to communicate with members easily and in a cost effective manner INVESTIGATORS — (Front Row) Krystal Willis and Dorothy Walos; (Back Row) Tommy Butler and Sharon Orth

126 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 INFORMATION SYSTEMS – Manager John Burchell, Matt Gayle and LRE — Coordinator Jane McConnell and Robbin Watson Debra Jenkins u maintaining a committee chairperson list mindedness. An understanding of the role of and a section chairperson list serve to allow the law in society is essential to informed par- communication between the association and ticipation in democracy. Creating active citi- the chairs, as well as between the chairs zens requires active civic education. LRE is themselves under the direction of Jane McConnell, Law- u providing a members-only website where related Education coordinator and Debra Jen- members can update roster information, kins, administrative assistant. Information pay dues, register for CLE, review MCLE about specific LRE programs and resources is credits, etc. available on the OBA website at www.okbar. org/public/lre. u providing free sign-up for the www.oklahomafindalawyer.com Phone: (405) 416-7024 lawyer referral service E-mail: [email protected] Phone: (405) 416-7045 Management Assistance Program Law-related Education The OBA Management Assistance Program focuses on helping Oklahoma lawyers with The Law-related Education (LRE) Depart- the nuts and bolts of running their law offices. ment of the Oklahoma Bar Association was From “basic training” for the new lawyer to established in 1989 to further the OBA’s goals providing management and technology of increasing public service and enhancing advice for the seasoned professional, the public understanding of the law and the legal department has a wide array of information to system. To that end, LRE endeavors to edu- assist every lawyer in every practice setting. cate citizens in a constitutional democracy and to create an active, responsible citizenry. u Free Telephone Hotline — The OBA-MAP staff attempts to answer brief questions LRE conducts programs independently and about management and technology issues. in partnership with nonprofits, civic organiza- Our number is (405) 416-7008. The toll-free tions and educational groups. Programs number is (800) 522-8065. Advice provided include professional development for teachers is confidential. and others in the civic community via institutions and workshops. Classroom materials are u OBA Solo and Small Firm Conference — created and distributed for programs adminis- Attend great CLE programs with nationally tered by LRE at no cost to educators. recognized experts, network with other small firm lawyers from across the state and meet LRE aims to join the education and law with vendors in a fun family setting. Join us communities in its mission of fostering civic- for the 14th Annual Solo and Small Firm

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 127 u Office “Health Checks” — These consultations take place in the lawyer’s office on a fee for services basis. A wide range of management issues can be covered. Typically all staff and attorneys will be involved both in group and individual interviews. u Free Consultations at the bar center — Any lawyer who is setting up a new practice or has encountered a difficult issue that cannot be comfortably handled over the telephone is welcome to schedule a free 50-minute appointment with the OBA-MAP director. u Your Law Practice — This innovative program consists of a one-day seminar, MAP — Director Jim Calloway and Amy Kelly scheduled in Oklahoma City twice a year (Spring and Fall) and in Tulsa in the fall, to Conference June 9-11, 2011, at Downstream assist attorneys setting up new solo practices. Casino Resort in Quapaw. A companion project is the “Starting a Law Practice Web Directory” which is available to u OBA-MAP Lending Library — Attorneys can any attorney at www.okbar.org/members/ borrow books on law practice management map/practice.htm. and technology from the OBA-MAP Lending Library. Thanks to a recent grant from the u Oklahoma Bar Journal articles — Each theme OBA Law Office Management and issue of the Oklahoma Bar Journal contains the Technology Section, there will soon be regular column “Law Practice Tips” by OBA- multiple copies of several of the more MAP Director Jim Calloway. popular titles. u Local Bar Presentations — The OBA-MAP u Discounts on practice management books director is available to speak at your county (and other ABA titles) — If you prefer to bar meetings or other organized lawyer own a book rather than borrow it, we have groups at no charge. partnered with the American Bar Association for a 15 percent discount on ABA Phone: (405) 416-7008 publications. Whether or not you’re a member of the ABA, your OBA membership Mandatory Continuing entitles you to 15 percent off the list price of Legal Education any of the ABA’s more than 300 titles. The OBA Mandatory Continuing Legal Edu- Simply enter PAB9EOKB in the Discount cation Department is the regulatory office Code Number field when placing your order concerned with the accreditation of all con- on the ABA website. tinuing legal education programs and the u OBA-NET — This is an online resource that compliance by all Oklahoma bar members is free to all OBA members. It is our online with the MCLE requirement. Often confused community for the legal profession. with the CLE Department, the MCLE Depart- Oklahoma lawyers post questions and ment does not sponsor CLE seminars. brainstorm with other lawyers online. There Mandatory Continuing Legal Education, a are many files and forms available that have program adopted by the Oklahoma Supreme been uploaded by other OBA members. Court in 1986, establishes minimum require- u Jim Calloway’s Law Practice Tips Blog — ments for continuing legal education for Okla- Weekly postings of Internet tips, law practice homa attorneys. The program is administered tips and hot news in law office management by the OBA Mandatory Continuing Legal and technology are available by visiting the Education Commission, which consists of nine blog website, subscribing to the e-mail alerts members, that has general supervisory or subscribing to the RSS news feed. Visit authority over the rules and may adopt regu- the blog at http://jimcalloway.typepad.com lations consistent with the rules.

128 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 MANDATORY CONTINUING LEGAL EDUCATION - Brenda Card, Administrator Beverly Petry (seated) and Johnny Floyd

Member services provided include: WEB SERVICES — Coordinator u reviewing seminars for accreditation Morgan Estes u accreditation of teaching activities u u responding to requests for clarification of the coordinating with OBA sections and Rules of the Oklahoma Supreme Court for committees to promote their activities online Mandatory Continuing Legal Education u heading the Web Editorial Board and Web u processing the annual reports of compliance Services Team u helping each member receive all the credit Phone: (405) 416-7085 he or she is entitled to for qualified CLE activities u keeping a record of the Oklahoma approved seminars attended by members Phone: (405) 416-7009 E-mail: [email protected] Web Services Department Don’t Know The Web Services Department is headed by Whom to Contact? Morgan W. Estes, the OBA’s Web Services If you need more information about which Coordinator. The department promotes the employee in a department to contact, check online presence of the association through the out the staff list at www.okbar.org/public/ OBA website and various social media outlets. about/staff.htm. You will find a list of each Specific responsibilities include: OBA staff member, a summary of his or her u editing and publishing the OBA’s official responsibilities, and their e-mail address. website, www.okbar.org u building websites to promote special events of the OBA

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 129 You are not alone.

Men Helping Men Women Helping Women February 3, 2011 February 10, 2011 Time - 5:30-7 p.m. Time - 5:30-7 p.m. Location Location The Oil Center – West Building The Oil Center – West Building 1st Floor Conference Room 10th Floor 2601 NW Expressway 2601 NW Expressway, Suite 1000W Oklahoma City, OK 73112 Oklahoma City, OK 73112 * Food and drink will be provided! * Food and drink will be provided! * Meetings are free and open to male OBA members. * Meetings are free and open to female OBA members. * Reservations are preferred. (We want to have enough * Reservations are preferred. (We want to have enough space and food for all.) space and food for all.) For further information and to reserve your spot, For further information and to reserve your spot, please e-mail [email protected]. please e-mail [email protected].

LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM

130 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Meet Your Bar Association OBA Offers a Variety of Member Benefits

eing a member of the Oklahoma Bar Association has its perks – an assortment of services, legal information, Bopportunities and discounts, many of them free. Take a few minutes to scan the list to make sure you are not missing out. Your association encourages you to take full advantage of these benefits, which are also listed on www.okbar.org and provides links to more information.

ONLINE SERVICES www.okbar.org — Main site or front door for the OBA with links to all other OBA web presences OKNewsBar (okbar.org/oknewsbar.htm) — Designed with the needs of OBA members in and much information for members as well as a mind, OKNewsBar has been created to allow great deal of information for the public. you to quickly access new Oklahoma and U.S. myOKbar (my.okbar.org) — password-protect- Supreme Court opinions as well as up-to-date ed portion of the OBA’s website. Easy to do legal news and law practice management tips. everything from changing your official address, enrolling in a CLE course, checking your MCLE credits to listing your practice areas on the Inter- net so potential clients can find you. You can also receive electronic communications from the bar by adding your e-mail address to the roster. OBA-NET (www.oba-net.org) — Members-only interactive service. Free basic service with premium services available to enhance the member benefit. This is where lawyers are empowered to Fastcase — The OBA offers online legal research help each other through online discussions and software as a free benefit to all OBA members. an online document repository. You must agree The OBA has contracted with Fastcase to pro- to certain terms and be issued a password to vide this member benefit, which includes nation- participate in OBA-NET. al coverage, unlimited usage, unlimited customer service and unlimited free printing – at no E-News (okbar.org/newsletter) — Current OBA cost to bar members, as a part of their existing news and information to assist in your law prac- bar membership. To use Fastcase, go to www. tice that is sent once a month to members with okbar.org. Under the Fastcase logo, to log in an e-mail address as part of their official roster enter your username (OBA number) and pass- information. word/PIN for the myOKbar portion of the OBA website. Online CLE (legalspan.com/okbar) — Quality OBA/CLE online programming, plus online

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 131 seminar programs from other state bar associations to firms, etc.), master calendar of judicial tions. It’s a convenient way to get up to six hours and bar events, $55 annual subscription, free to MCLE credit. members. Specially printed binders to keep bar journals organized are provided to members at $15.95 each. Continuing Legal Education materials — Semi- nar materials and form books available for purchase, an affordable way to get quality, state-specific practice aids. Prices start at approximately $40. A complete list of topics is available online, or come by the CLE Dept. at the Oklahoma Bar Center Monday- Friday, 8:30 a.m. - 5 p.m., and review the books available. CLE materials are also available in an electronic format, by chapter, at www.legalspan.com/okbar/e-pubs.asp. Consumer information brochures (okbar.org/ public/brochures) — Pamphlets on 16 topics covering commonly asked questions to give to clients, sold to OBA members at a minimal cost of $16 for 100. Brochure topics are: wills, probate, joint tenancy, home buying, tenant rights and duties, landlord rights, divorce, small claims court, employee rights, bankruptcy, trial juror OklahomaFindALawyer (www.oklahomafind alawyer.com) — The OBA’s official lawyer listing service. Free to members and the public. It is also a useful tool for lawyers to identify attorney practice area expertise in specific geographic areas. Sign up through MyOkbar. Online research (okbar.org/research) — A quick way to find the Oklahoma Supreme Court website to look up Oklahoma cases and statutes online. Can be used to find the online site of the Court of Criminal Appeals or any of Oklahoma’s District Courts, hunt a state or federal agency, locate a federal court site, find a municipal ordi- nance or find the rules from local or federal courts. As a bonus there are many other links to assist in your legal and factual research. information, lawyers & legal fees, living wills Website design and hosting — Provided by the (brochure and form), criminal law and resolving OBA staff to committees, sections and county conflicts and disputes. As a community service, bar associations. the OBA distributes the brochures free to court- Prepared speeches for community/civic groups houses and libraries throughout the state. (http://bit.ly/publicspeeches) — Speeches, out- PRACTICE MANAGEMENT/ lines and handouts prepared by the OBA’s PROFESSIONALISM Bench and Bar Committee on selected topics for presentation to public groups. Young Lawyers Division — YLD is a professional service network offering the chance to PUBLICATIONS participate in community and bar-related pro- Oklahoma Bar Journal (okbar.org/obj) — 34 grams. Lawyers of any age who have been in issues annually, contains articles, court opinions, practice less than 10 years are automatically substantive law, state bar news, professional members. No dues are required. Information changes, member news (moves, kudos, addi-

132 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 about YLD programs is available at www.okbar. Book purchasing program — OBA members, org/yld. whether or not you are an American Bar Asso- ciation member, receive a 15 percent discount off the list price of any of the ABA’s more than 300 titles. Simply enter PAB9EOKB in the Discount Code Number field when placing your order on the ABA website at www.abanet. org. Lending library — Law practice management books, video and audio tapes available for lawyers to check out and review. There is no fee for checking out materials to take home. Continuing Legal Education seminars (okbar. org/cle) — The OBA creates and coordinates live seminars, webcasts, webinars and on-demand programs on a full spectrum of legal topics. OBA/CLE also sells seminar materials and practice aids in hard copy and electronic formats. For more information on all OBA/CLE benefits go to www.okbar.org/cle. Practice management/ technology hotline service — Free telephone calls to the Management Assistance Program (MAP) staff and the OBA Director of Information Systems for brief answers about practical management and technology issues, such as law office software, understanding computer jargon, staff and personnel problems, software training opportunities, time management and trust account management. Call Ethics Counsel (okbar.org/ethics) — Assists (405) 416-7008. members with ethical inquiries on subjects such as conflicts, confidentiality and client concerns. Office “health checks” — In-depth personal or The Ethics Counsel also presents continuing group consultations that take place in the law- education programs and writes articles on the yer’s office, consultations may focus on technol- topics of ethics and professionalism. Call (405) ogy, office procedures or other areas agreed 416-7055. upon by attorney and MAP Coordinator. Fee is $500 per day for small law firms (five attorneys Crisis Counseling Services — Need help with or less) or $750 per day for medium or larger stress, depression or addiction? Call the Law- firms (more than five attorneys), program offered yers Helping Lawyers Assistance Program toll- by OBA’s MAP Department. Call (405) 416-7008 free at (800) 364-7886. The OBA offers all bar to schedule. members up to six hours of free crisis counseling. It’s strictly confidential and available 24 MAP workshops — Customized day-long pre- hours a day. In addition, separate support groups sentations on technology and office procedures for men and women lawyers are offered month- conducted on-site to a group of attorneys and ly in Oklahoma City – at no charge. Meetings staff members from different firms using a mul- are designed to help cope with life’s pressures timedia approach, may include computer gener- and challenges. Dates and more details are avail- ated presentation, videotapes on such topics as able online at www.okbar.org/s/7lw96. professionalism and trust accounting procedures and workshop exercises, afternoon session OBA sections (okbar.org/members/sections) — devoted to answering specific questions anony- 23 substantive law sections that offer profes- mously submitted. This is for firms who wish to sional development and interaction, experience share costs and have more general information professional growth by learning from colleagues presented to them. in your practice area and develop new contacts,

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 133 benefits vary by section with a growing number of sections holding midyear or quarterly meetings that offer free or discount CLE to section members, some sections publish member newsletters. For a list of sections and their annual dues, see the story in this issue. County bar association and civic group speak- ers — OBA officers, Board of Governors members and staff members are available (for the price of a meal) to speak at luncheons and banquets on a wide variety of topics including legislative issues, ethics, law office management and law practice tips. NETWORKING OTHER SERVICES Leadership opportunities — Boards, commit- Direct dial and 24-hour messaging to OBA staff tees, sections and commissions are some of the members — Bypass waiting for the OBA recep- volunteer opportunities that offer career devel- tionist to answer your call by dialing a staff opment and ways to interact with other attor- person or department directly, a list of phone neys and judges. numbers is published in the Oklahoma Bar Jour- nal next to the events calendar, leave a voice Leadership Academy — The OBA offers train- message anytime (nights and weekends too). ing to potential OBA and community leaders After-hour calls to the general phone numbers through its OBA Leadership Academy. Partici- (405) 416-7000 or (800) 522-8065 are automated pants for the 2011-2012 OBA Leadership Acade- and will list department extension numbers to my will be selected in the summer of 2011 with punch in if you don’t know the direct phone programming to begin in the fall of 2011. number. Annual Meeting — Participate in CLE pro- Video conferencing — Available at the Tulsa grams, section and committee meetings, have a County Bar Center and OSU Tulsa so that com- voice in determining the OBA’s legislative pro- mittee and section members can join in on meet- gram and electing future state bar leaders, take ings without traveling to Oklahoma City. advantage of networking opportuni- Legislative services ties with attorneys (okbar.org/legisla and judges from tive) — The OBA’s throughout the state. executive director The 2011 Annual works for adoption Meeting will take of legislative issues place Nov. 2-4 at the approved by the Hyatt Regency (for- House of Delegates, mer Crowne Plaza and the Legislative Hotel) in Tulsa. Monitoring Commit- tee provides a peri- Solo & Small Firm odic legislative report Conference/Y L D highlighting the sta- Midyear Meeting tus of selected bills (okbar.org/solo) — during the session. Lawyers have the The report is pub- opportunity to get to know one another and to lished in the Oklahoma Bar Journal and on the take advantage of a CLE seminar in a relaxed website while the Legislature is in session. family setting. The 2011 Solo and Small Firm Conference is scheduled for June 9-11 at Down- Meeting rooms at Bar Center — Many size stream Casino Resort in Quapaw. rooms to choose from to accommodate small and large group meetings, client conferences and depositions, free to members during week- day business hours, nominal fee for evenings.

134 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Toll-free phone number — In-state OBA mem- and you have a retirement solution that may bers who live outside the Oklahoma City metro enable firms to hire and retain quality employ- calling area can place free calls to the Oklahoma ees, control expenses and assist them with their Bar Center by dialing (800) 522-8065, which con- fiduciary responsibilities. Contact a program nects you to our receptionist (a real, live person representative at (800) 826-8901 for a program - not a machine) to direct your call to the proper prospectus or visit www.abaretirement.com for person or department. more information. OPTIONAL MEMBER PURCHASE MEMBER DISCOUNTS Oklahoma Legal Directory — Official directory FedEx Shipping Services – Members of OBA members with addresses and phone are eligible to receive valuable dis- numbers, roster alphabetical and by county, counts of up to 26 percent on select includes guide to county, state and federal offic- FedEx® shipping services. There are no costs es plus departments of the U.S. and Oklahoma and no minimum shipping requirements to take government, complete digest of courts, profes- advantage of this great new member benefit. sional associations including OBA officers, com- OBA members can save: mittees and sections. Published by Legal Direc- • Up to 26 percent on FedEx Priority Overnight® tories Publishing Co., the hard bound edition or and FedEx Standard Overnight® envelopes. CD-ROM is $60 plus shipping and sales tax. Call (800) 447-5375 to request order form or go to • Up to 20 percent on FedEx Priority Overnight, www.legaldirectories.com. FedEx Standard Overnight, FedEx 2Day® and FedEx Express Saver® paks and packages, and Title Examination Standards — Contains all the FedEx International Priority® and FedEx presently effective Oklahoma Title Examination International Economy® shipments. Standards and reflects all revisions, produced by the OBA Real Property Law Section, $5 per copy, • Up to 12 percent on FedEx Ground® and free to section members. The 2011 Title Examina- FedEx Home Delivery® shipments, depend- tion Standards will soon be available at the bar ing on the weight of the package. center or can be mailed for an additional fee. For exact shipping cost, e-mail Wanda Reece-Mur- • Up to 70 percent on FedEx Freight® and FedEx ray at [email protected]. National LTLSM services OBA Sponsored Insurance Programs — Keep For more information or to enroll, please go to rates low through group buying power. For www.1800members.com/new/oba or call 1-800- information about OBA programs for life, health MEMBERS/(800) 636-2377 7 a.m.-5 p.m. CST, M-F. (employer-group and individual), individual Colcord Hotel – A boutique hotel disability, personal umbrella liability, long-term near Bricktown in downtown Okla- care and other insurance plans, contact Beale homa City, the Colcord Hotel offers Professional Services (405) 521-1600, (800) 530- OBA members a discounted rate of $129 per 4863; www.bealepro.com. For information on night for a deluxe king or deluxe double double professional liability and court bonds, contact room. Call the hotel at (866) 781-3800 to make Oklahoma Attorneys Mutual at (405) 2471-5380, your reservation and mention that you are an (800) 318-7505; www.oamic.com. OBA member for the special discount or make ABA Retirement Funds — The ABA Retirement your reservation online at www.colcordhotel. Funds program is designed to provide unique, com utilizing the corporate rate – access code is full service 401(k) plans to the legal community. OKLBar. It was created over 45 years ago by the American Bar Association. By leveraging the size of the ABA Retirement Funds Program which brings together nearly 4,000 firms, the program offers a fund lineup and services traditionally only available to the largest corporate plans. These services are offered at no out-of-pocket expense to law firms of all sizes with institutionally priced funds for their participants. Couple these bene- LawPay Merchant Account — Credit card profits with the oversight that the ABA Retirement cessing designed for attorneys that safeguards Funds Board provides over the entire program

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 135 and separates client funds into trust and operat- centers are geographically separated and possess ing accounts. Credit cards attract clients, win redundant systems. Don’t worry about losing business, improve cash flow and reduce collec- your data and not being able to restore it due to tions. To learn more call (866) 376-0950 or visit virus, hard drive crash, accidental deleting of www.affiniscape.com/oklahomabar for more data, natural disaster, flood and the many other information. ways that could cause you to lose your data. To sign up or get more information, visit www. LawWare — Bar members may subscribe to the corevault.net/oba or call (888) 265-5818. document assembly, document management and client management software program at a International Travel — Go Next has been in discounted group rate. Created by Oklahoma business for 39 years. They provide high quality, attorneys in 1991, LawWare streamlines the pro- recreational travel to destinations around the cess of organizing and generating legal forms and related documents for law offices of any size. With the OBA endorsement, members may subscribe to LawWare at a discounted rate of $49 per month for the first copy and $10 per month for each additional office copy. To inquire about LawWare or to order a subscription, call (866) LAW-WARE or visit www.LawWare.com. Online Data Backup & Recovery — CoreVault offers bar members data backup and recovery services at a discounted rate. The service is automated and centrally managed to help law firms protect their data. It provides daily offsite protection, fast restores, encrypted data and customer service. In addition, CoreVault’s two private data globe. Group rates on trips are available to you, your family and your friends. All trips include airfare from either Oklahoma City or Tulsa, accommodations, transfers, breakfast buffet and other amenities. See highlights of the current trip offerings at www.GoNext.com. Call Go Next toll-free at (800) 842-9023 for more information and/or reservations. WordPerfect Licensing Program — The OBA has signed on to Corel Corporation’s new bar association licensing program, allowing OBA members to purchase licenses of the award-winning WordPerfect® Office 4 at substantially reduced prices. To place an order, go to www. corel.com/barassociation.

136 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 137 Meet Your Bar Association OBA Sections ant a way to network with other attorneys in your practice area from across the state? The OBA supports W23 substantive law sections that offer professional development and interaction. Experience professional growth by learning from colleagues in your practice area and develop new contacts, benefits vary by section with a growing number of sections holding midyear or quarterly meetings that offer free or discount CLE to section members, some sections publish member newsletters. The following is a list of those who are leading the sections in 2011.

Laurence Yadon, Newsletter Editor One West Third, Suite 1667 Tulsa, OK 74103-3519 (918) 595-6607 [email protected] Andrea Braeutigam, Treasurer OK Agriculture Mediation Program Inc. 2800 N. Lincoln Blvd. Oklahoma City OK 73105 Alternative Dispute (405) 640-2819 Resolution Section [email protected] D. Michael O’Neil Jr., Co-Chairperson, OKC Robert J. Carlson, Co-Secretary Day Edwards Propester & Christensen PC Gable Gotwals 210 Park Ave., Suite 2900 1100 ONEOK Plaza Oklahoma City, OK 73102 100 W. 5th St. (405) 239-2121 Tulsa, OK 74103-4217 Direct Fax: (405) 228-1133 (918) 595-4873 Firm Fax: (405) 236-1012 [email protected] [email protected] Justin Munn, Co-Secretary Michael A. Simpson, Co-Chairperson, Tulsa Smakal, Munn & Mathis PLLC Atkinson, Haskins, Nellis, Brittingham, Gladd 320 S. Boston Ave., Suite 718 & Carwile Tulsa, OK 74103 1500 ParkCentre (918) 582-3400 525 S. Main Fax: (918) 582-3402 Tulsa, OK 74103-4524 [email protected] (918) 582-8877 (x4224) [email protected]

138 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Appellate Practice Section Criminal Law Section Rick Goralewicz, Chairperson David Brockman, Chairperson-Elect Route 1, Box 509 300 County Building Cashion, OK 73016 201 S. Jones (405) 521-1302 Norman, OK 73069 [email protected] (405) 321-8268 [email protected] Greg Eddington, Chair-Elect 1004 N.W. 39th St. Cindy Danner, Secretary Oklahoma City, OK 73118 Oklahoma Indigent Defense System (405) 361-9726 P.O. Box 926 [email protected] Norman, OK 73070-0926 (405) 801-2727 Minal Gahlot, Secretary [email protected] Travis Law Office P.O. Box 1336 Virginia Sanders, Secretary Oklahoma City, OK 73101 Oklahoma Indigent Defense System (405) 236-5400 P.O. Box 926 [email protected] Norman, OK 73070-0926 (405) 801-2727 Collin Walke, Treasurer [email protected] 414 N.W. 4th St. Suite 150 Charles Rogers, Treasurer Oklahoma City, OK 73102 2816 W. 15th Ave. (405) 837-2982 Stillwater, OK 74074 [email protected] (405) 372-4883 [email protected] Bankruptcy and Reorganization Section Doug Drummond, Q & A Editor Tulsa County District Attorney’s Office Jeffrey E. Tate, Chairperson 500 S. Denver Ave. Mulinix Ogden Hall Andrews & Ludlam Tulsa, OK 74105 3030 Oklahoma Tower (918) 596-4865 210 W. Park Ave. [email protected] Oklahoma City, OK 73102 (405) 232-3800 Ben Brown, CLE Chairperson [email protected] 5905 Classen Court Oklahoma City, OK 73118 John B. Jarboe, Secretary/Treasurer (405) 713-6770 Jarboe & Stoermer [email protected] 401 S. Boston, Suite 1810 Tulsa, OK 74103-4018 Brian T. Hermanson, Past Chairperson (918) 582-6131 P.O. Box 2110 [email protected] Ponca City, OK 74602 (580) 762-0020 Business and Corporate Law Section [email protected] Mark Schell, Chairperson Unit Corporation P.O. Box 702500 Tulsa, OK 74170-2500 (918) 493-7700 [email protected]

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 139 Energy and Natural Resources Law Section Vance Brown, Chairperson Elias, Books, Brown & Nelson Two Leadership Square 211 N. Robinson, Suite 1300 Oklahoma City, OK 73102-7114 (405) 232-3722 [email protected] Pamela S. Anderson, Chairperson-Elect Hall Estill 320 S. Boston Ave., Suite 200 Tulsa, OK 74103-3704 Patrick Green, Secretary (918) 594-0400 Heroux & Helton [email protected] 6450 S. Lewis Ave., Suite 115 Tulsa, OK 74136 Lisa Silvestri, Secretary/Treasurer (918) 582-3853 GableGotwals [email protected] 1100 Oneok Plaza 100 W. 5th St. Mista Turner-Burgess, Treasurer Tulsa, OK 74103-4217 6113 N.E. 107th St. (918) 595-4800 Oklahoma City, OK 73151 [email protected] (405) 702-7189 [email protected] Brad Gungoll, Budget Director Gungoll Jackson Estate Planning, Probate and 3030 Chase Tower Trust Section 100 N. Broadway Oklahoma City, OK 73102 Kent Gardner, Chairperson (405) 272-4710 P.O. Box 720995 [email protected] Oklahoma City, OK 73172 (405) 840-5000 Chris A. Tytanic, Immediate Past Chairperson [email protected] General Counsel of M3 Technology Solutions LLC Gale Allison, Chairperson Elect OCU/OU Adjunct Professor of Law The Allison Firm 10401 Highview Drive P. O. Box 700116 Oklahoma City, OK 73151 Tulsa, OK 74170 (405) 406-1394 (918) 492-4500 [email protected] [email protected] Ben Kirk, Secretary Environmental Law Section 201 Robert S. Kerr, Suite 710 Gerald L. Hilsher, Chairperson Oklahoma City, OK 73102 McAfee & Taft (405) 239-4300 1717 S. Boulder Ave., Suite 900 [email protected] Tulsa, OK 74119 Kara Greuel, Treasurer (918) 574-3036 5215 E. 71st St., Suite 1000 [email protected] Tulsa, OK 74136 Michael C. Wofford, Chairperson Elect (918) 492-4500 Doerner, Saunders, Daniel & Anderson [email protected] 201 Robert S. Kerr Ave., Suite 700 Keith Peters, Mid-Year Meeting Coordinator Oklahoma City, OK 73102-4203 Two Leadership Square (405) 319-3504 211 N. Robinson, 10th Floor [email protected] Oklahoma City, OK 73102 [email protected]

140 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Family Law Section Kimberly K. Hays, Chairperson 248 W. 16th St. Tulsa, OK 74119 (918) 592-2800 Fax: (918) 592-4143 [email protected] Tamera Childers, Chairperson-Elect and CLE Chair 3800 First Place Tower 15 E. 5th St. Tulsa, OK 74103-4309 (918) 581-8200 Fax: (918) 583-1189 [email protected] Keith A. Jones, Budget Officer 1861 E. 15th St. Tulsa, OK 74104-4610 (918) 747-4600 Fax: (918) 744-6300 [email protected] Allison A. Hart, Secretary Virginia Henson, Practice Manual Co-Editor Hart Law Firm 1818 W. Lindsey, Suite 276C 1441 N.W. 150th P.O. Box 1243 Edmond, OK 73013 Norman, OK 73069 (405) 340-6340 (405) 310-3956 Fax: (405) 285-2786 Fax: (405) 329-5002 [email protected] [email protected] Kimberly K. Hays, Immediate Past Chairperson Jon R. Ford, Practice Manual Co-Editor 248 W. 16th St. 302 N. Independence, Suite 300 Tulsa, OK 74119 Enid, OK 73701 (918) 592-2800 (580) 234-0253 Fax: (918) 592-4143 Fax: (580) 234-0256 [email protected] [email protected] Noel K. Tucker, CLE Co-Chair Assistant (OKC) Phillip J. Tucker, Practice Manual Co-Editor P.O. Box 601 P.O. Box 601 Edmond, OK 73083-0601 Edmond, OK 73083-0601 (405) 348-1789 (405) 348-1789 Fax: (405) 348-9724 Fax: (405) 348-9724 [email protected] [email protected] Amy E. Wilson, CLE Co-Chair Assistant (Tulsa) Brad Cunningham, Membership Co-Chair 3840 S. 103rd East Ave., Suite 109 Cordell Law LLP Tulsa, OK 74146 320 S. Boston, Suite 1026 (918) 439-2424 Tulsa, Oklahoma 74103 Fax: (918) 439-2430 (918) 592-4443 [email protected] Fax: (918) 592-4962 [email protected] David A. Tracy, Nominations and Awards 1701 S. Boston Judge Gary J. Dean, Membership Co-Chair Tulsa, OK 74119 208 S. Vann St. (918) 582-8000 Pryor, OK 74361-5216 Fax: (918) 583-1210 (918) 825-1676 [email protected] [email protected]

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 141 Noel K. Tucker, Legislative Chair Financial Institutions and Commercial P.O. Box 601 Law Section Edmond, OK 73083-0601 (405) 348-1789 J. Mark Lovelace, Chairperson Fax: (405) 348-9724 Phillips Murrah PC [email protected] Corporate Tower, 13th Floor 101 N. Robinson Ave. Rees T. Evans, Historian Oklahoma City, OK 73102 501 N.W. 13th St. (405) 235-4100 Oklahoma City, OK 73103 [email protected] (405) 232-4311 Fax: (405) 232-4315 Professor Brian M. McCall, Vice Chairperson [email protected] OU College of Law 300 Timberdell Road William G. Lasorsa, Bylaws Norman, OK 73019-5081 15 E. 15th St., Suite 3800 (405) 325-1682 Tulsa, OK 74103 [email protected] (918) 581-8200 Fax: (918) 583-1189 Brian Pierson, Secretary/Treasurer [email protected] BancFirst P.O. Box 26788 Judge Mary Fitzgerald, Judicial Liaison Oklahoma City, OK 73126 Co-Chair (Tulsa County) (405) 270-4791 500 S. Denver Ave. [email protected] Tulsa, Oklahoma 74103-3861 (918) 596-5000 Robert T. Luttrell III, Program Coordinator Fax: (918) 596-5402 McAfee & Taft [email protected] Two Leadership Square, 10th Floor 211 N. Robinson Judge Barry Hafar, Judicial Liaison Co-Chair Oklahoma City, OK 73102-7103 (Oklahoma County) (405) 552-2291 Oklahoma County Courthouse [email protected] 321 Park Ave., Room 113 Oklahoma City, OK 73102 Mike Rubenstein, List Serve Liaison (405) 713-1167 Rubenstein, McCormick & Pitts PLLC Fax: (405) 713-1852 1503 E. 19th St. [email protected] Edmond, OK 73013 (405) 340-1900 Eileen Echols, Social Co-Chair [email protected] 9925 S. Penn Oklahoma City, OK 73159 Paul R. Foster, Immediate Past Chairperson (405) 691-2648 Paul Foster Law Offices PC Fax: (405) 691-5648 P.O. Box 720550 [email protected] Norman, OK 73070 (405) 329-9101 Keith A. Jones, Social Co-Chair [email protected] 1861 E.15th St. Tulsa, OK 74104-4610 (918) 747-4600 Fax: (918) 744-6300 [email protected] LeAnne McGill, Social Co-Chair 3839 S. Boulevard, Suite 150 Edmond, OK 73013 (405) 285-8048 Fax: (405) 285-8064 [email protected]

142 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 General Practice/Solo and Small Firm Beau Patterson, Vice Chairperson Section Two Leadership Square 211 N. Robinson, 10th Floor Chairperson-TBA Oklahoma City, OK 73102 Timothy S. McKinney, Immediate Past (405) 235-9621 Chairperson [email protected] 923 N. Wentz Cori Loomis, Secretary Guthrie, OK 73044 20 N. Broadway, Suite 1800 (405) 282-5353 Oklahoma City, OK 73102-8273 [email protected] (405) 234-3238 Government and Administrative Law [email protected] Practice Section James Bullard, Budget Officer 2 W. Second St., Suite 700 Bryan Neal, Chairperson Tulsa, OK 74103-3725 529 N.W. 174th St. (918) 591-5344 Edmond, OK 73012 [email protected] (405) 522-0118 [email protected] House Counsel Section Tamar Graham Scott, Chairperson Elect Brent Mills, Chairperson 200 N.E. 21st St. P.O. Box 53036 Oklahoma City, OK 73105 Oklahoma City, OK 73152-3036 (405) 521-2635 (405) 626-6886 [email protected] [email protected] Scott Boughton, Treasurer/Budget Officer Indian Law Section 313 N.E. 21st Street Jeff Keel, Chairperson Oklahoma City, OK 73105 1500 N. Country Club Road (405) 521-4274 Ada, OK 74820 [email protected] (580) 310-0570 [email protected] Chrissi Ross Nimmo, Chairperson Elect Cherokee Nation Office of Attorney General P.O. Box 948 Tahlequah, OK 74464 (918) 458-6998 [email protected] Brandy Inman, Secretary 1955 E. 34th St. Tulsa, OK 74105 (918) 382-7523 [email protected] Susan Arkeketa, Budget Officer 110 W. 32nd St. Sand Springs, OK 74063 (918) 408-6444 [email protected] Insurance Law Section Health Law Section Jon Starr, Chairperson Michael McDaniel, Chairperson McGivern & Gilliard 4725 E. 91st St., Suite 100 P.O. Box 2619 Tulsa, OK 74137 Tulsa, OK 74101 (918) 292-8787 (918) 584-3391 [email protected] [email protected]

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 143 Ryan Harper, Vice Chairperson Oklahoma City, OK 73102 Spirit Tower, Suite 500 (405) 235-7700 1800 S. Baltimore Ave. [email protected] Tulsa, OK 74119 (918) 382-7523 Labor and Employment Law Section [email protected] Stephanie Johnson Manning, Chairperson M. Scott Ryan, Treasurer Titus Hillis Reynolds Love Dickman & Taylor, Ryan, Schmidt & Van Dalsem PC McCalmon 850 Boulder Towers First Place Tower 1437 S. Boulder Ave. 15 E. Fifth St., Suite 3700 Tulsa, OK 74119 Tulsa, Oklahoma 74103 (918) 948-6958 (918) 587-6800 [email protected] Fax: (918) 587-6822 [email protected] Intellectual Property Law Section Christine Cave, Vice Chairperson Sean V. O’Connell, President Employers Legal Resource Center Tomlinson & O’Connell PC 301 N.W. 63rd St., Suite 390 Two Leadership Square Oklahoma City, OK 73116 211 N. Robinson Ave., Suite 450 [email protected] Oklahoma City, OK 73102 Adam W. Childers, Treasurer (405) 606-3360 Crowe & Dunlevy PC [email protected] 20 N. Broadway, Suite 1800 Julianna G. Deligans, Vice President Oklahoma City, OK 73102 Hall, Estill, Hardwick, Gable, Golden & (405) 235.7741 Nelson PC Fax: (405) 272.5956 100 N. Broadway [email protected] Chase Tower, Suite 2900 David Blades, Secretary Oklahoma City, OK 73102 Shook & Johnson Law (405) 553-2828 7420 S. Yale Ave. [email protected] Tulsa, OK 74136 (918) 293-1122 Scott R. Zingerman, Secretary/Treasurer [email protected] Fellers, Snider, Blankenship, Bailey & Tippens PC 321 S. Boston, Suite 800 Law Office Management and Tulsa, OK 74103-3318 Technology Section (918) 599-0621 [email protected] Kent Morlan, Chairperson 406 S. Boulder, Suite 450 Michael J. LaBrie, Director-at-Large/ Tulsa, OK 74103 Immediate Past Chairperson (918) 582-5544 McAfee & Taft [email protected] Two Leadership Square, 10th Floor Judge Charles R. Hogshead, Immediate Past 211 N. Robinson Chairperson Oklahoma City, OK 73102-7105 Tulsa County Courthouse (405) 552-2305 500 S. Denver Ave. [email protected] Tulsa, OK 74103-3832 Barabara Krebs-Yuill, Director (918) 596-5330 Dunlap Codding PC [email protected] 1601 N.W. Expressway, Suite 1000 Oklahoma City, OK 73118 Litigation Section (405) 607-8600 Renée DeMoss, Chairperson [email protected] 100 W. 5th St., Suite 1100 David M. Sullivan, Director Tulsa, OK 74103 Crowe & Dunlevy PC (918) 595-4800 20 North Broadway, Suite 1800 [email protected]

144 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Larry Lipe, Vice Chairperson Jason Soper, Legislative Liaison 4000 One Williams Center Committee Chair Tulsa, OK 74172 P.O. Box 1292 (918) 586-8512 Oklahoma City, OK 73101 [email protected] (405) 415-1503 [email protected] Real Property Law Section John B. Wimbish, Title Examination Scott W. Byrd, Chairperson Standards Handbook Editor-in-Chief 3726 E. 43rd St. 5314 S. Yale, Ste. 200 Tulsa, OK 74135 Tulsa, OK 74135 (918) 587-3161 (918) 494-3770 [email protected] [email protected] Jack Mackey, Immediate Past Chairperson Taxation Law Section 431 S.W. C Avenue, Suite 100 Lawton, OK 73501 Hal Wm. Ellis, Chairperson (580) 695-2811 711 S. Husband St. [email protected] Stillwater, OK 74074 (405) 743-3770 Briana J. Ross, Chairperson-Elect [email protected] 9327 E. 81st St., Suite 1103 Tulsa, OK 74133 W. Todd Holman, Vice-Chairperson (918) 770-2590 1257 W. 112th St. S. [email protected] Jenks, OK 74037 (918) 599-7755 Jeff Noble, Budget Officer [email protected] 4040 N. Tulsa Oklahoma City, OK 73112 Alan G. Holloway, Secretary (405) 942-4848 Two Leadership Square [email protected] 211 N. Robinson, 10th Floor Oklahoma City, OK 73102 Chris Smith, Secretary (405) 552-2344 1000 W. Wilshire, Suite 428 [email protected] Oklahoma City, OK 73116 Charlotte Abigail Dillsaver, Treasurer (405) 919-6876 Oklahoma Tax Commission [email protected] 120 N. Robinson, Suite 2000W Rebecca Sherwood, Member at Large Oklahoma City, OK 73102 American Eagle Title (405) 319-8550 7306 S. Lewis, Suite 105 [email protected] Tulsa, OK 74136 (918) 894-4150 [email protected] Lucas J. Munson, Member at Large 247 N. Broadway Edmond, OK 73034 (405) 513-7707 [email protected] Kraettli Q. Epperson, Title Examination Standards Committee Chairperson 50 Penn Place 1900 N.W. Expressway, Suite 1400 Oklahoma City, OK 73118 (405) 848-9100 [email protected]

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 145 Kurt Schneiter, Member at Large (West) Workers’ Compensation Section 2200 Classen Blvd., No. 3123 Norman, OK 73071 Frank Gruntkowski, Chairperson (405) 833-4595 4138 E. 47th St. [email protected] Tulsa, OK 74135 (918) 743-4391 Kenneth L. Hunt, Member at Large (East) [email protected] 320 S. Boston Ave., Suite 200 Tulsa, OK 74103 Jennifer Jackson, Chairperson-Elect (918) 594-0420 224 E. Main [email protected] Oklahoma City, OK 73104 (405) 418-2083 Pamela Cai Goins, IRS Liaison [email protected] 55 N. Robinson, Stop 4123 Oklahoma City, OK 73102 John Shears, Treasurer (405) 297-4791 Corporate Tower, 13th Floor [email protected] 101 N. Robinson Ave. Oklahoma City, OK 73102 Sheppard F. Miers Jr., OTC Liaison (405) 235-4100 100 W. 5th St., Suite 1100 [email protected] Tulsa, OK 741023 (918) 595-4800 [email protected]

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146 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 SCHOLARLY ARTICLE

Pledges to a Charity: Can They Be Enforced and When Should They Be? By Gary C. Clark and M. Brandon Meyer

INTRODUCTION n addition to cash and other gifts, charities frequently rely on pledges to make one or more payments in the future to raise Ithe funds necessary to fulfill their charitable purposes. In almost all cases, the pledgor makes the payments in general compliance with the promise. On occasion, however, the death or financial difficulties of the pledgor or a falling out with the charity may result in nonpayment.

In 2001, R.A. Young signed and delivered a enforceable. Finally, this article will discuss form Donor Letter of Intent to the YMCA of other issues related to charitable pledges. Greater Oklahoma City containing, inter alia, WHEN ARE CHARITABLE PLEDGES the following language: ENFORCEABLE? In support of the 2001 Capital Campaign Overview of Case Law Regarding for the YMCA of Greater Oklahoma City, I Enforceability of Pledges (we) intend to pledge $1,000,000 over 5 years. PAYMENT TO BEGIN WHEN CON- Despite considerable efforts, neither we nor STRUCTION BEGINS.1 other commentators have found any Oklaho- ma cases determining the enforceability of a Sadly, Mr. Young died prior to commence- charitable pledge.4 Even with the passage of ment of construction which began in 2004. almost 20 years and the guidance (?) of subse- When the first payment was not made in 2005, 2 quent case law, the authors cannot improve a creditor’s claim was filed in the estate. It upon the overall analysis of pledge enforce- appeared that Oklahoma might have its first ability cases provided by Budig authors.5 They reported case on the enforceability of a chari- reviewed a significant number of cases and table pledge. However, other issues not perti- ultimately concluded that the courts typically nent here also arose and, ultimately, the case 3 apply contract analysis in determining enforce- was settled for $262,000. ability of a charitable pledge, but often strain Had the case not settled, what result might to find a basis for upholding the pledge. They we have expected? This article will provide a divided the cases into the following catego- brief review of cases from other jurisdictions, ries: 1) mutual promises between charity and discuss Oklahoma contract law principles as pledgee (bilateral contract), 2) mutual promises they may relate to charitable pledges and offer between pledgees, 3) unilateral promise enforce- suggestions that may assist in making a pledge able when accepted, 4) promissory estoppel and

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 147 5) public policy enforcement.6 Frankly, the lines Maryland Court of Appeals has adhered to between and among them are not all that clear. what is essentially now the Restatement Sec- tion 90(1) and declined to enforce a promise The Allegheny College7 case is cited as the where it found no actual reliance, thus reject- prime example of where a bilateral contract ing what is now Section 90(2).12 was formed. The Budig authors, perhaps with a bit of sarcasm, point out that the court found Analysis under General Contract Law an implied request that the gift be named to Lest we give the impression that all courts honor the pledgee and determined that an will find substitutes for the general contract acceptance of payment was an inferred prom- principles, there are jurisdictions where “plain” ise “to make the scholarship effective” and, contract law applies. For example, the Virginia eureka, there was a bilateral contract.8 No Supreme Court has held that “a charitable sub- wonder this case has been a favorite of law scription is governed by the law of contracts professors over the years. and must be supported by an offer, an accep- Another theory for enforcing a pledge has tance and consideration.”13 been where there are mutual pledgees to the Although Oklahoma does not have a report- same fund. Despite the fact that these pledgees ed case on the enforceability of a charitable have not made promises to one another, some pledge, Oklahoma’s statutory law provides courts have found a type of contract while oth- some guidance. Oklahoma law requires “1) ers have not.9 The pledge at issue in the Young parties capable of contracting, 2) their consent, case might have fallen into this category. 3) a lawful object and 4) sufficient cause or In the case decided by the New York appel- consideration” to create a valid contract.14 The late division, the court stated that “[i]t is the consideration may include a benefit conferred well established law of this State that charitable upon the promissor or any prejudice suffered subscriptions (pledges) are enforceable on the by a promissee.15 For example, consideration ground that they constitute an offer of a unilat- could include actions on the part of the charity eral contract which, when accepted by the in reliance on a pledge.16 charity by incurring liability in reliance there- Numerous exceptions have developed to mit- on, becomes a binding obligation.”10 Although igate the hardships resulting from a strict appli- the reported facts are sketchy, it appears that cation of the doctrine of consideration.17 For the pledge was made as a part of a fund drive example, in Allegheny College,18 Judge Cardozo to build a new hospital and, after the hospital introduces the idea that consideration is not was apparently built, the pledgor failed to pay necessary to support a charitable pledge.19 Okla- his pledge.11 Note how this sounds much like homa has incorporated the con- the standard promissory estop- cept of promissory estoppel as pel theory which is discussed a part of Oklahoma common in the following paragraph. law.20 In order to prevail on a We are all familiar with the Lest we give the theory of promissory estoppel, now well-established doctrine a charity would need to show of promissory estoppel as most impression that 1) a clear and unambiguous clearly stated in Section 90(1) promise, 2) foreseeable reliance, of the Restatement (Second) of all courts will find 3) reasonable reliance to the Contracts which provides, in promisee’s detriment and 4) pertinent part: “[a] promise substitutes for the hardship or unfairness can be which the promisor should avoided only by the promise’s reasonably expect to induce general contract enforcement.21 action or forbearance on the A typical promissory estop- part of the promisee or a third principles, there are pel argument for a charity may person and which does induce involve a pledge that a charity such action or forbearance is jurisdictions where has reasonably relied upon in binding if injustice can be constructing a building similar avoided only by enforcement ‘plain’ contract to the facts in Young. Attorneys of the promise. The remedy for the YMCA in the Young case granted for breach may be lim- law applies. put forth various arguments in ited as justice requires.” The favor of the charitable pledge

148 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 being enforceable including a promissory the Oklahoma judicial branch will recognize estoppel argument.22 The trial court found, the same importance of charitable organiza- inter alia, that the determination of detrimental tions by enforcing charitable pledges and by reliance involved a mixed question of law and what manner of analysis. fact and denied the motion to dismiss filed by Enhancing Enforceability in Drafting Documents Mr. Young’s estate.23 Although the law surrounding enforceability Restatement (Second) of Contracts Section 90(2) of charitable pledges is not well settled, a practi- An effort to bring uniformity to the law tioner may add language to a pledge agreement regarding enforcing charitable pledges was to increase the likelihood it will be enforced. made by the American Law Institute when it This may assist a personal representative of an adopted Section 90 of the Restatement (Sec- estate or a successor trustee who is concerned ond) of Contracts (1979) which provides as that an estate will not receive an estate tax follows: deduction for payment on a pledge.29 §90. Promise Reasonably Inducing Action A statement of “I pledge” will be more likely Or Forbearance to be enforced than a general statement of ”intent” to make a pledge in the future. The (1) . . . . pledge signed by Mr. Young contained lan- 30 (2) A charitable subscription . . . is binding guage stating an intent to act in the future. under Subsection (1) without proof that the The state of Iowa appears to be the state most 31 promise induced action or forbearance. likely to enforce a gratuitous pledge; however, a pledge containing language of intent to make Comment f. to Section 90 explains the a pledge in the future was not enforced in rationale behind subsection (2): Iowa.32 American courts have traditionally favored Additionally, a recitation of the consideration charitable subscriptions…, and have found provided by each party may assist a charity in consideration in many cases where the ele- showing the presence of “legal” consider- ment of exchange was doubtful or nonexis- ation.33 For example, agreeing to name a build- tent. Where recovery is rested on reliance ing (or perhaps a room within the building in such cases, a probability of reliance is after the pledgor) may well be sufficient. enough, and no effort is made to sort out If the charity is engaged in raising funds for mixed motives or to consider whether par- a specific project where a number of donors are tial enforcement would be appropriate. needed, you might also include language that Subsection (2) relieves the pledgee from the charity in consideration of the pledge, will proving actual reliance (just that reliance would solicit other donors. have been reasonable) and makes the pledge While perhaps not determinative, it cannot fully payable rather than limited “as justice hurt to include language that the pledge is requires.” While the adoption of Restatement “legally binding” and is “irrevocable.” Cer- Section 90(2) would bring some clarity to the tainly such language avoids an argument that law of enforceability of charitable pledges, the pledge was merely a statement of intent. with the exceptions of Iowa24 and New Jersey,25 we have found no other jurisdictions which Other practical considerations may include have adopted the restatement view regarding asking a donor to provide a special power of charitable pledges. Several courts have consid- appointment to the charity to enforce a pledge ered the possibility and declined to adopt Sec- upon the donor’s death or to include a provi- tion 90(2).26 sion in a donor’s will or trust to satisfy any outstanding pledges with an offset for advanc- Other jurisdictions have enforced charitable es made during the life of the donor. pledges espousing public policy grounds in accordance with the restatement.27 The Okla- DO TRUSTEES/DIRECTORS HAVE AN homa Legislature has acknowledged the impor- OBLIGATION TO SEEK ENFORCEMENT ON A PLEDGE AGREEMENT? tant function served by nonprofit organizations and has encouraged service by individuals on Assuming a charitable pledge is enforceable a nonprofit board by limiting the liability of under one or more of the theories described board members.28 It is yet to be seen whether above, a question that is also unresolved by

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 149 Oklahoma courts is whether or not there is the attach to the trustee or the beneficiaries of such duty of the charitable trustee or director to seek trust for any such act, omission or liability.41 to enforce an unfulfilled pledge. The Oklahoma Court of Appeals recently In the Budig article, the authors make a case limited the scope of the forgoing provision that as of the date of their writing (1992) there somewhat by virtue of the later adoption of was a trend, though not strong, toward impos- what is now 60 O.S. 2001 §175.19 (personal ing such a duty on trustees or directors.34 We liability of trustee for torts).42 Nonetheless, are not so certain that such a trend is evident these statutes signal a general legislative intent today. that trustees not have personal liability except in particular circumstances. Duties of Trustees We do not think that a trustee who, in the With respect to trustees, their case starts with exercise of the trustee’s good faith judgment an unarguable statement that a trustee has a considering all relevant factors, such as the fiduciary duty to “exercise reasonable care and likelihood of recovery, the pledgor’s financial skill, take and keep control of trust property, situation, the pledgor’s continuing relation- preserve the trust property, enforce claims and ship, the possible impact on other future pledg- prudently invest trust property.”35 The writers es, the cost of litigation, the uncertainty of liti- then point out that most of the case law dealing gation, etc., determines it is not in the best with trustee duties have developed with respect interest of the charitable trust to pursue a to private trusts, but note that the cases indi- defaulting pledgor should be second-guessed cate that the fiduciary responsibility of a chari- by the courts. If so, how many well-qualified table trustee is substantially similar although persons would want to be a trustee of such a not owed to a specific beneficiary.36 They also trust, when they usually serve without pay and refer to the then recently adopted Restatement with only a genuine desire to help the charity? (Third) of Trusts §227 which is similar in effect Duties of Directors to the provisions of the Oklahoma Uniform Prudent Investor Act.37 Without doing their Even though the Budig authors conceded it entire argument justice, in essence they con- had only been adopted in two states (now clude that a trustee has a high standard of care many more), they analogize to various provi- with respect to enforcing charitable pledges. sions of the Revised Model Nonprofit Corpora- tion Act43 as their primary argument for a duty As noted above, there are no Oklahoma cases to enforce pledges for directors of nonprofit dealing with the precise issue nor is there any corporations.44 A few cases are cited in support Oklahoma statute directly on point. There are, of the “corporate standard” for breaches of the however, Oklahoma cases which hold that a director’s duties, which takes into account the charitable trustee’s fiduciary duties are at least good faith of the director and requires some- on par with a private trustee.38 Certainly, it is thing more than mere negligence.They also cite the law in Oklahoma that a private trustee may a few cases applying the “business judgment be surcharged for a breach of trust.39 But there rule” to hold directors liable for gross negli- are few cases and none really all that helpful in gence, but not ordinary negligence.45 They do our view to resolve the issue at hand. not cite a case that directly holds that there is a duty to enforce a charitable pledge.46 Looking to analogous situations, there are cases involving “public trusts” which invoke We think that a better standard is that estab- Title 60 O.S. 2001 §179 to absolve trustees of lished by the Oklahoma Legislature. Directors public trusts from personal liability.40 There is a of nonprofit corporations in Oklahoma are general statutory limitation of trustees which charged with two primary fiduciary duties to provides as follows: the corporation — the duty of care and the duty of loyalty.47 The Oklahoma Legislature Liability to third persons for any act, omis- enacted legislation to provide immunity for sion or obligation of a trustee or trustees of directors of nonprofit corporations for any neg- an express trust when acting in such capacity, ligent act or omission by an employee or by shall extend to the whole of the trust estate another director of the corporation.48 This held by such trustee or trustees, or so much immunity does not protect a director from the thereof as may be necessary to discharge director’s own intentional misconduct or gross such liability, but no personal liability shall negligence.49 Also, Oklahoma statutes provide

150 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 that directors of nonprofit corporations are not Imagine the pain of a personal representative personally liable to the corporation for money who feels legally (and morally) obligated to damages for breach of a fiduciary duty, but this pay a charitable pledge but faces the unenvi- protection does not apply to any breach of the able position of being unable to deduct the duty of loyalty, any acts not in good faith or pledge payment on the estate tax return. which involve a knowing violation of the law Depending on the size of the payment, the or acts of self-dealing.50 This immunity for di- impact on other beneficiaries of the estate may rectors of nonprofit corporations is based on be significant. public policy concerns and a desire to promote the general welfare of Oklahoma.51 Forgiveness of Pledge of a Disqualified Person Under the business judgment rule, directors Both a charity and donor must consider fed- of nonprofit corporations are protected from eral tax law when a pledge is not fulfilled in review and criticism of their decisions on a accordance with its terms. Congress has acted hindsight basis.52 Also, a director is protected over the years to remedy perceived abuses for decisions made in good faith reliance on associated with tax exempt organizations. information provided by the corporation’s offi- Many of the statutory enactments have overly cers or employees, committees of the board or broad implications. For example, penalty taxes competent advisors.53 can be imposed on both a public charity and certain donors when a pledge is not paid or Under the Oklahoma statute it is difficult to when a pledge is paid by an affiliate of the imagine liability being imposed on a director donor such as a donor advised fund. who makes a good faith decision that pursuing a defaulting pledgor is not in the best interest The intermediate sanction rules of the Inter- of the charity. With a different result, charities nal Revenue Code (IRC) impose a penalty on might well end up with directors who have excess benefit transactions between a disquali- very little assets or very little understanding of fied person and a public charity. The IRC their potential liability (indicating a lack of defines a disqualified person to include any business acumen generally). As we noted at the person who has the ability to exercise substan- end of our discussion regarding potential trust- tial influence over the charity.56 This includes ee liability, good faith decisions which take into directors and officers of the public charity and account many relevant factors should not be a may also include substantial contributors to 57 basis for liability.54 the charity. ARE THERE OTHER ISSUES REGARDING An excess benefit transaction is any transac- PLEDGES? tion between a disqualified person and a public charity in which the public charity provides Deductibility of a Pledge on the Estate Tax Return an economic benefit and receives a lesser value One concern that bears keeping in mind is from the disqualified person in return. A public that the Internal Revenue Service may question charity’s forgiveness of a pledge made by a the deduction of a charitable pledge paid out of disqualified person could arguably give rise to an estate.55 The IRS relies on 26 C.F.R. §20.2053- an excess benefit transaction. The determina- 5 which provides as follows: tion of whether an excess benefit transaction occurs is usually a factual determination. Fac- (a) A pledge or a subscription, evidenced tors that could be considered are whether the by a promissory note or otherwise, even donor has incurred financial hardship and can- though enforceable against the estate, is not afford to pay the pledge or has had a deductible (subject to any applicable limi- change of heart. tations in §20.2053–1) only to the extent that: Donors should also be aware that an enforceable pledge agreement between a donor and a 1) Liability therefor was contracted bona public charity may not be satisfied with funds fide and for an adequate and full consider- from a private foundation or donor advised ation in cash or its equivalent, or fund without the imposition of a penalty tax.58 2) It would have constituted an allowable An individual may, however, satisfy with their deduction under section 2055 (relating to own funds an enforceable pledge between charitable, etc., deductions) if it had been a their private foundation and a public charity bequest. without engaging in an act of self-dealing.

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 151 FASB Standard Relating to Accounting for Pledges 12. Maryland Nat’l Bank v. United Jewish Appeal Fed’n, 407 A.2d 1130, 286 Md. 274 (1979). 13. Virginia School of Arts Inc. v. Eichelbaum, 493 S.E.2d 510, 512 In 1993, the Financial Accounting Standards (Va. 1997). Board issued Statement No. 116. Among other 14. 15 O.S. 2001 §2. things, this statement dramatically changed the 15. 15 O.S. 2001 §106. See also 15 O.S. 2001 §107 (a moral obligation originating in some benefit conferred upon the promisor…is also a manner of accounting for pledges. The state- good consideration for a promise, to an extent corresponding with the ment required that most pledges be treated as extent of the obligation.) 16. See Matter of Estate of Hoobler, 925 P.2d 13, 1995 OK 56 (grand- assets in the financial statements of charitable children’s forbearance to file a will contest action was valid consider- organizations. Previously, most charities did not ation to support a contract). 17. See John D. Calamari and Joseph M. Perillo, The Law of Con- include pledges as assets on their financial tracts, 255-57 (4th ed. 1998), [hereinafter Calamari]. reports prior to the receipt of the funds. 18. Supra, at note 7. 19. Although the authors admit that Justice Cardozo’s opinions are The change is significant in that after listing open to interpretation and could be considered a case introducing the theory of promissory estoppel to enforcement of charitable contributions. a pledge as an asset of the charity, there may be 20. See Russell v. Board of County Commissioners, 952 P.2d 492, 503 some heartburn about not pursuing a default- (1997) (acknowledging that promissory estoppel has become a part of Oklahoma common law). ing pledgor. 21. Id. The authors question whether it may be more difficult to enforce a charitable pledge on the basis of promissory estoppel than CONCLUSION showing consideration as defined in 15 O.S. 2001 §106. Promissory estoppel requires a showing of reasonable reliance by the promissee to While the settlement of the Young case pre- its own detriment while consideration under Oklahoma statutory law vented Oklahoma practioners from obtaining a may be shown by a benefit conferred to the promissory or “any prejudice suffered” (emphasis added). clearer picture of the enforceability of a charita- 22. YMCA’s Response to Defendant’s Motion to Dismiss filed July ble pledge in Oklahoma, there appears to be 22, 2005, In re Estate of Young. (Arguing that the YMCA reasonably relied on the pledge of Mr. Young in carrying out and concluding its ample support for enforcing such pledges, at capital campaign). least under the right circumstances which vary 23. Memorandum filed Aug. 30, 2005, In re Estate of Young. 24. Salsbury v. Northwestern Bell, 221 N.W. 2d 609, 613 (1974) (hold- somewhat from jurisdiction to jurisdiction. ing that charitable pledges are enforceable under the doctrine of prom- Despite the analytical approaches taken by the issory estoppel as a matter of public policy), supra at 613. 25. Jewish Federation of Central New Jersey v. Barondess, 560 A 2d 1353, various courts, there appears to be a strong incli- 234 N.J.Super. 526 (1989). nation to uphold such pledges where possible. 26. See, e.g., King v. Trustees of Boston College, 647 N.E.2d 1196, 420 Mass. 52 (1995). Although charitable pledges generally may 27. See, e.g., Irwin v. Lombard Univ., 46 N.E. 63 (Ohio 1897) (“The policy of this state, as so indicated, is promotive of education, religion be enforceable, we believe that the Oklahoma and philanthropy. [P]romises made with a view to … establishing Legislature signaled its intent that trustees/ endowment funds to give them greater stability and efficiency, and directors should not be held liable for good whatever may be necessary or helpful to accomplish their purposes or secure their permanency, must be held valid.”) faith determinations not to seek enforcement. 28. See 18 O.S. 2001 §865 (providing protection to directors for the Personal liability should not attach unless there vicarious liability of corporate officers and other directors). 29. See discussion for deductibility of an enforceable pledge at note is gross negligence or self-dealing (a breach of 55, infra. the duty of loyalty). 30. See note 1, supra. 31. See Salsbury, supra. 32. See Pappas v. Bever, 219 N.W.2d 720 (Iowa 1974) (finding that 1. Claim of YMCA filed March 29, 2005, In the Matter of the Estate of a statement of an intention to do something in the future is not Raymond A. Young, deceased , Case No. PB-2002-626 in the District Court enforceable). of Oklahoma County, Oklahoma. The capitalized phrase was interlin- 33. Although a charitable pledge agreement may not appear to eated on the printed form in two places. reflect equal consideration since a donor, by definition, makes a chari- 2. Id. table pledge with a donative intent, courts will not usually attack the 3. Order filed April 18, 2007, In the Matter of the Estate of Raymond sufficiency of consideration. See Calamari at 172-75. A. Young, deceased: YMCA of Greater Oklahoma City v. W. Cheryl Moore, 34. Budig, supra, at pages 85 – 119. Case No. PB-2002-626 in the District Court of Oklahoma County, Okla- 35. Id. at 87 (footnotes omitted). homa (hereinafter, In re Estate of Young). 36. Id. at 88. In Oklahoma, the cases of Harrison v. Barton, 358 P.2d 4. Budig, Butler and Murphy, “Pledges to Nonprofit Organiza- 211, 1960 OK 256, and Smith v. Baptist Foundation of Oklahoma, 50 P.3d tions: Partly Enforceable and Must They Be Enforced?”, 27 U. S. F. L. 1132, 2002 OK 57, are supportive of these general statements. Rev. 47 (1992). 37. 60 O.S. 2001 §§175.60 et seq. 5. Id. 38. See note 36, supra. 6. Id. at 51-66. For another analysis and list of relevant pledge cases, 39. 60 O.S. 2001 §175.23. See, e.g., Crews v. Willis, 159 P.2d 251, 1945 see “Lack of Consideration as Barring Enforcement of Promise to Make OK 174. Charitable Contribution or Subscription — Modern Cases,” 86 A.L.R. 40. Bank of Oklahoma v. Briscoe, 911 P.2d 311, 1995 OK CIV APP 156, 4th 241 (1991). and McKosky v. Town of Talihina, 581 P.2d 482, 1977 OK CIV APP 27. 7. See Allegheny College v. National Chautauqua County Bank of James- 41. 60 O.S. 2001 §174 (emphasis added). town, 159 N.E. 173 (N.Y. 1927). 42. Mamoodjanloo v. Wolf, 190 P.2d 1170, 2008 OK CIV APP 59. A 8. Allegheny College as quoted in Budig, supra at 56. similar result should obtain for contract liability under 60 O.S. 2001 9. See cases cited in Jordan v. Mount Sinai Hospital, 276 So.2d 102 §175.18 (prima facie evidence that personal liability is intended to be (Fla. Dist. Ct. App. 1973), aff’d 290 So.2d 484 (Fla. 1974). excluded if contract signed as trustee). 10. Cohoes Memorial Hospital v. Mossey, 25 A.D.2d 476, 266 N.Y.S.2d 43. The American Bar Association adopted a further revision in 50, 52 (N.Y.A.D. 3 Dept., 1966) (citations omitted). 2008, the Model Nonprofit Corporation Act (Third Edition) (2008). 11. Compare In re Versailles Foundation Inc., 610 N.Y.S.2d 2, 202 44. But see, the Utah Revised Nonprofit Corporation Act, based in A.D.2d 334 (1994) where the court found the pledgee’s detrimental part on the RMNCA, which absolves directors from liability for reliance of “wining and dining” the pledgor to be insufficient to breaches of their statutory duties unless the breach constituted willful enforce the promise. misconduct or intentional infliction of harm on the nonprofit corpora-

152 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 tion or its members, Utah Code subsection 16-6a-822(6)(b), and Iowa Code 504.901 which precludes personal liability for directors except for financial benefits received, intentional infliction of harm on the corporation or the members, unlawful distributions or an intentional violation of criminal law. 45. Budig, supra, at 98-101. See also, Warren v. Century Bancorporation Inc., 741 P.2d 846, 848-49, 1987 OK 14 (dictum). 46. In a recent Wyoming case, summary judgment in the board’s favor was affirmed where a settlement by a board with the manager regarding a pay dispute rather than pursuing litigation was within their business judgment. Mueller v. Zimmer, 124 P.3d 340, at 351-52, 2005 WY 156. See also, In re Stetson, 345 A.2d 679, at 689, 463 Pa. 64 (1975) (private trustee may compromise claim if reasonably diligent). 47. Gantler v. Stephens, 965 A.2d 695 (Del. 2009). Oklahoma courts interpret the Oklahoma General Corporation Act in accordance with Dela- ware decisions. See Beard v. Love, 173 P.3d 796, 2007 OK CIV APP 118. 48. 18 O.S. 2001 §866. 49. Id. 50. 18 O.S. 2001 §867. 51. 18 O.S. 2001 §865 (“providing immunity to directors of [Okla- homa nonprofit] corporations for certain types of liability will promote the general health, safety and welfare of citizens in the state.”) 52. See Smith v. Van Gorkom, 488 A.2d 858, 872-73 (Del. 1985). 53. 18 O.S. 2001 §1027(E). 54. See discussion at III(a), supra. 55. See, e.g., Arrowsmith v. Mercantile-Safe Deposit and Trust Co., 545 A.2d 674, 313 Md. 334 at 355 (1988). 56. I.R.C. §4958. 57. I.R.C. §4958(f). 58. See Treas. Reg. §53.4941(d)-2(f) (providing that it is an act of self dealing for a private foundation to satisfy an enforceable pledge of a disqualified person which generally includes substantial contributors, officers and directors).

About The AuthorS

Gary C. Clark is a graduate of Oklahoma State University and the University of Texas School of Law (with honors). In 2004, after almost 30 years in private practice, he became vice president and general counsel of the OSU Foundation. In 2008, he became vice president of university relations at OSU.

M. Brandon Meyer currently serves as vice president and general counsel of the Oklahoma State University Foundation. Prior to joining the OSU Foundation, he practiced law in Oklahoma City at McAfee & Taft and more recently served as general counsel of an international oil and gas services company. He is a graduate of Oklahoma State University and the Oklahoma City University School of Law.

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 153 SCHOLARLY ARTICLE

Determining Heirs-at-Law Puzzling Predicaments in Probate Part I By Judge Linda Morrissey and Julie Bushyhead

INTRODUCTION “ uzzling Predicaments in Probate” is a series consisting of three articles discussing challenging issues in probate law. PThese articles include “Part 1: Determining Heirs at Law;” “Part II: Homestead and Spousal Rights;” and “Part III: Probate and Oil and Gas Development.” The first article in the series, “Determining Heirs at Law,” discusses the basics of intestate succession, the shift from per stirpes to per capita methods of intestate distribution, the table of consanguinity, identifying degrees of relatives, determining who is not an heir at law, adoption, the Uniform Simultaneous Death Act, and paternity determination for purposes of heirship.

LAWS OF INTESTATE SUCCESSION will not include the decedent’s parents or siblings.6 However, if the decedent did not leave a A person dies intestate when he or she dies surviving spouse, the rules of intestacy differ. without a valid will.1 When a person dies intes- Where the decedent leaves no surviving spouse, tate, his/her estate will be distributed to the the decedent’s heirs at law will be the dece- decedent’s heirs at law.2 An heir at law is a dent’s issue, parents, siblings, grandparents or “person, who, under the laws of intestacy, is grandparents’ issue, or next of kin.7 If the dece- entitled to receive a portion of the intestate dent is not survived by any relative, the estate decedent’s property.”3 As such, a detailed will escheat to the state.8 review of the laws of intestacy, codified in 84 O.S. §213, is necessary to determine a dece- SHIFT FROM PER STIRPES TO PER CAPITA dent’s heirs at law. The heirs at law and the “Per stirpes” and “per capita” are terms that distribution allotted to those heirs will differ refer to the methodology used in the distribu- depending on whether the decedent left a sur- tion of an intestate estate. “Per stirpes” is a Latin viving spouse.4 If the decedent left a surviving term meaning “by roots or stocks.”9 An estate spouse but no surviving issue, the heirs at law distributed “per stirpes” is “proportionally will usually include 1) the decedent’s spouse divided between beneficiaries according to and 2) the decedent’s parents or siblings.5 If the their deceased ancestors share.”10 In order to decedent left a surviving spouse and surviving determine the “roots” or initial shares, consider issue, the heirs at law will only include the the steps below: decedent’s surviving spouse and issue, and

154 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 1. Determine the first generation descending dent’s estate as “next of kin.”15 If there is more from the decedent in which there are “live than one relative within the same degree of roots.” Ask whether or not the root can relationship, each will take an equal share.16 continue to grow to determine whether it But the question remains: “how do you deter- is a live root. “Live roots” occur in two mine degrees of relationship?” The easiest way possible situations: a) decedent’s issue sur- is to use the Table of Consanguinity.17 This table vived decedent [as in “C” below] or b) illustrates the rules for determining degrees of decedent’s issue predeceased decedent but collateral heirs. The numbers above each box in left surviving issue of his/her own [as in the chart indicate the degree of relationship to “A” below]. You would not count a share the decedent. See below for directions on in the situation where decedent’s issue counting degrees of relationship without using predeceased decedent and left no issue of the Table of Consanguinity: his/her own [as in “B” below]. 1. Count the generations up from the surviv- 2. Then count the number of live roots. ing relative to the common ancestor. 18 3. You allocate an equal share to the live roots Include the relative in the count. and divide down where the root prede- 2. Count the generations down from the com- ceased the decedent. This result is described mon ancestor to the decedent’s parents. Do as an heir taking “by right of representa- not include the decedent in the count. tion.” And in the scenario below, “W”, “X”, Only count the common ancestor once (in and “Y” take by right of representation. step one).19 DISTINGUISHING BETWEEN FIRST AND SECOND COUSINS ( ) What in the World is a First Cousin, Twice Removed?20 %& %& Cousin (a.k.a “first cousin”) First cousins are the people in your family who have two of the same grandparents as you. In + other words, they are the children of your aunts and uncles. %)& Second Cousin " !# % &! Your second cousins are the people in your family who have the same great-grandparents as you, but not the same grandparents. %(& ($* Third, Fourth and Fifth Cousins %(& ($* Your third cousins have the same great-great- %(& ($* %)& ($) grandparents; fourth cousins have the same great-great-great-grandparents, and so on. Term “Removed” The “per stirpes” (“right of representation”) When the word “removed” is used to describe method for distributing an estate is used where a relationship, it indicates that the two people a decedent is survived by issue, parents, par- are from different generations. You and your ents’ issue, grandparents or grandparents’ first cousins are in the same generation (two issue.11 However, where the only relatives sur- generations younger than your grandparents), viving the decedent are great-grandparents, so the word “removed” is not used to describe great-grandparents’ issue, or a “more remote your relationship. common ancestor,” heirs will not take by “right of representation.”12 Instead, the method shifts The words “once removed” mean that from “per stirpes” to “per capita.” “Per capita” is there is a difference of one generation. For a Latin term meaning “by the head.”13 The “per example, your mother’s first cousin is your capita” method only considers surviving rela- first cousin, once removed. This is because tives as possible heirs.14 Only those surviving your mother’s first cousin is one genera- relatives who are “most closely related by tion younger than your grandparents and degree to the decedent” will share in the dece- you are two generations younger than

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 155 TABLE OF CONSANGUINITY This material is reproduced from the California Conservatorship Practice, copyright 2009 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar — California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit website, CEB.com).

your grandparents. This one-generation WHO IS NOT AN HEIR-AT-LAW? difference equals “once removed.” At first glance, intestate succession can be a Twice removed means that there is a two- confusing issue wrought with foreign termi- generation difference. You are two genera- nology. For instance, the terms descendant, tions younger than a first cousin of your issue, and heir at law seem as though they are grandmother, so you and your grandmoth- referring to the same individual(s). However, a er’s first cousin are first cousins, twice closer look reveals that a descendant is “one removed. who follows in the blood line of an ancestor,”

156 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 in direct (not collateral) descent from a person.21 Biological parents are not entitled to inherit Similarly, a decedent’s issue can be described as from adopted children. a person’s descendants, lineal descendants, or • Upon completion of the adoption process, offspring (includes grandchildren).22 Whereas, the law does not recognize a distinction an heir-at-law is a person “who, under the laws between a naturally born child and an of intestacy, is entitled to receive [a portion of] adopted child and all parental responsibili- an intestate decedent’s property.”23 This distinc- ties and rights over adopted children or tion is important when you have a scenario such property of adopted children are relieved.31 as the one listed below: UNIFORM SIMULTANEOUS DEATH ACT Decedent, D, dies intestate survived by (USDA) two children, X and Y. Y dies while D’s estate is still in probate. Y is survived by The USDA is relevant to determining heirs- three children. Who are D’s heirs-at-law for at-law when, for example, a husband and wife purposes of distributing D’s estate? die and there is “no sufficient evidence to establish that the persons have died other than D’s estate should only be distributed to D’s simultaneously.”32 In this circumstance, the heirs. Both X and Y survived the death of D. question arises as to how the two estates Only if Y predeceased D would Y’s children be should be distributed. The USDA, adopted by considered D’s heirs-at-law under the laws of Oklahoma in Title 58 Ch. 16,33 states that “the intestate succession.24 Instead, in this scenario, property of each person shall be disposed of as Y’s children are D’s descendants (grandchil- if he had survived.”34 However, reading the dren), but not D’s heirs-at-law. Even though Y words of the statute alone confuses the issue as died during the probate of D’s estate, determi- to how the court should distribute the estates nation of heirship is anchored to the date of of both husband and wife. The easiest way to death of D. Therefore, because Y survived D, illustrate the effect of the USDA is with a hypo- Y’s share goes to Y’s probate estate. thetical scenario: ADOPTION Husband and wife die intestate in a car A decedent’s adopted child is treated the accident and there is no evidence that they same as the decedent’s biological child for the died other than simultaneously. Husband purpose of determining heirs-at-law.25 and wife have two children together. Effects of Adoption26 If there was evidence to show that either the husband or wife survived the other,35 even by Adopted children are entitled to inherit from one second, then the surviving spouse’s estate and through their adoptive parents.27 would receive a portion of the pre-deceased • Adoption affects descent and distribution spouse’s intestate estate. However, where the by creating a “right of inheritance.” husband and wife die simultaneously as in the hypothetical above, each spouse’s estate should • However, a subsequent adoption (one adopt- pass as if he/she was the survivor and the ed a second time) will cut off any right spouse predeceased him/her. In other words, attributable to the previous adoption.28 the husband’s estate should pass as if he was Adopted parents are entitled to inherit from the survivor and the wife predeceased him.36 and through adopted children. As a result, the husband’s estate should be distributed to the surviving two children, not to • An adopted child and adoptive parents the wife’s estate.37 Similarly, the wife’s estate enjoy all the rights of descent and distribu- should pass as if she survived and her husband tion as if they were biological parents and predeceased her — with the estate passing to child. From the date of the decree, adoptive the two surviving children, not to the hus- parents are entitled to inherit real and per- band’s estate. Stated differently, the wife would sonal property from and through the child.29 not be considered the husband’s heir-at-law Adopted children may inherit from both natu- because she predeceased him, and the husband ral and adoptive parents. would not be considered the wife’s heir-at-law because he predeceased her. • After adoption, the child is eligible to inherit from their natural and adoptive The question remains: how do you deter- parents.30 mine the contents of the husband’s estate and

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 157 d) the father was judicially determined to be such in a paternity proceeding before a …the husband’s estate court of competent jurisdiction.43 should be distributed to the While title 84 does not specify genetic testing as a method for establishing paternity for pur- surviving two children, not to poses of determining heirship, it does not pro- hibit genetic testing. The court must find a the wife’s estate. showing of good cause to order genetic testing of a deceased individual.44 What evidence suf- fices good cause? The Maine Supreme Judicial Court described “good cause” as having “suf- the wife’s estate at the time of death? The ficient reason advanced to justify exercise of USDA discusses specific rules concerning dis- such broad power.”45 The Court stated, where tribution of a husband and wife’s estate when there is a showing of evidence that creates “at they die simultaneously.38 One-half of the mari- the very least a reasonable probability that tal “community” property will pass as if the genetic testing . . . will reveal [that the movant wife predeceased the husband, thereby treat- is the issue of decedent],” there is “good ing the one-half as the husband’s separate cause.”46 39 property. Likewise, the other one-half of the CONCLUSION marital “community” property will pass as if the husband predeceased the wife, thereby One must be mindful of the various legal treating the one-half as the wife’s separate issues that can affect the determination of a property. The result is that each person’s estate decedent’s heirs. The determination of heirship includes his/her separate property and one- is anchored to the date of death of a decedent. half of the community property as his or her Considerations such as adoption into or out of separate property.40 a family, after-deceased heirs, simultaneous deaths, and paternity determinations are all PATERNITY DETERMINATION unusual factors that significantly affect the Currently, Oklahoma law does not reflect the determination of one’s heirs at law. Correct scientific advancement of genetic (DNA) test- determination is important not only in intestate estates but also in testate estates because of ing for the purpose of determining heirs-at- 47 law. However, the Uniform Parentage Act per- the requirement to give notice to heirs at law.

mits a court, upon a showing of good cause, to 1. Black’s Law Dictionary 898 (Bryan A. Garner Ed., 9th Ed., West order genetic testing of a deceased individual.41 2009). 2. 84 O.S. §213(B) (2001). For purposes of this publication, the dis- The Oklahoma statute discussing inheritance cussion is limited to descent and distribution laws applicable to those by a child born out of wedlock does not include who died on or after 7-1-85. DNA testing as a method for establishing 3. Black’s Law Dictionary at 791. 4. 84 O.S. §213. 42 paternity. Instead, the statute states that a 5. 84 O.S. §213(B)(1). child born out of wedlock may inherit from the 6. 84 O.S. §213(B)(1)(c). 7. 84 O.S. §213(B)(2). putative father whenever: 8. 84 O.S. §213(B)(3). 9. Black’s Law Dictionary at 1260. a) the father, in writing, signed in the pres- 10. Id. ence of a competent witness acknowledges 11. Nancy I. Kenderline, Oklahoma Wills and Intestate Succession 17 (Butterworth Legal Publishers 1993) (1987). himself to be the father of the child, 12. Id. at 16. 13. Black’s Law Dictionary at 1250. b) the father and mother intermarried sub- 14. Kenderline, supra n. 11, at 16. 15. Id. sequent to the child’s birth, and the father, 16. Id. after such marriage, acknowledged the 17. Infra pg 5. 18. 84 O.S. §221 (2001). child as his own or adopted him into his 19. 84 O.S. §221. family, 20. Terms copied from the appendix, page xi, in the yellow handbook: Determining & Locating Heirs at Law©, (unpublished pamphlet c) the father publicly acknowledged such prepared by Judge Linda Morrissey and her judicial interns) (copy on file with Judge Linda Morrissey); Terms retrieved from www.genealogy. child as his own, receiving it as such, with com/16_cousin/html on 8/1/2010. the consent of his wife, if he is married, into 21. Black’s Law Dictionary at 510. 22. McCoy v. Lewis, 1933 OK 640, ¶ 9, 27 P.2d 350, 351. his family and otherwise treating it as if it 23. Black’s Law Dictionary at 791. were a child born in wedlock, or 24. 84 O.S. §213.

158 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 25. R. Robert Huff, 1 Okla. Prob. Law & Prac. §3.7, Posthumous and Adopted Children, (3d ed.). About The AuthorS 26. “Effects of Adoption” copied from the appendix, page viii, in the yellow handbook: Determining & Locating Heirs at Law©, (unpublished pamphlet prepared by Judge Linda Morrissey and her judicial Linda G. Morrissey is a Tulsa interns) (copy on file with Judge Linda Morrissey). County district judge currently 27. 10 O.S.Supp.2009 §7505-6.5(A). presiding over a civil docket. She 28. In re Estate of Moore, 2001 OK CIV APP 76, ¶ 9, 25 P.3d 305, 307. 29. Id. has presided over probate, felony 30. R. Robert Huff, 1 Okla. Prob. Law & Prac. §3.7, Posthumous and criminal, drug court, mental health Adopted Children, (3d ed.). 31. 10 O.S. §7505-6.5(B). and domestic violence dockets as 32. 58 O.S. §1001 (2001). well as family and child support 33. 58 O.S. §§1001-1008 (2001). 34. 58 O.S. §1001. enforcement dockets. During her 35. In Re Estates of Perry, 2001 OK CIV APP 136, ¶ 13, 40 P.3d 492, 497 judicial tenure, she has served as (“To avoid the implications of the Act, it is necessary to prove only that one party survived the other by at least one second”). It does not appear chief judge of the civil, probate that Oklahoma has adopted the 1993 USDA amendment redefining and domestic dockets. She received a law degree from “simultaneous” to mean “within 120-hours.” Stephen M. Arcuri, note, OU in 1980 and a master’s degree in counseling from Does Simultaneous Really Mean Simultaneous? Interpreting the Uniform Simultaneous Death Act, 17 Quinnipiac Prob. L.J. 338, 342 (2003-2004). OSU in 1977. 36. In re Di Bella’s Estate, 125 N.Y.S.2d 755 (N.Y.Sup. 1953); Rodney Johnson, The New Uniform Simultaneous Death Act, 8 PROB. & PROP. 22 (1994). 37. 84 O.S. §213. Julie Bushyhead graduated from 38. 58 O.S. §1004 (2001). 39. Id. TU Law in May 2009 and has 40. Id. been licensed to practice law since 41. 10 O.S.Supp.2006 §7700-509. 42. 84 O.S. §215. September 2009. She was recently 43. Id. hired as a state’s attorney for Okla- 44. 10 O.S.Supp.2006 §7700-509. homa Child Support Services in 45. In re Estate of Kingsbury, 946 A.2d 389, 394 (Me. 2008). 46. Id. Tulsa. During law school, she 47. 58 O.S. §25. interned with Judge Morrissey and assisted her with various research projects and presentations on the topic of probate law. She is a member of the Tulsa County Bar Association and Hudson-Hall-Wheaton Inns of Court. www.okbar.org Your source for OBA news.

At Home At Work And on the Go

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 159 SCHOLARLY ARTICLE

Homestead and Spousal Rights Puzzling Predicaments in Probate Part II By Judge Linda Morrissey and Julie Bushyhead

art II of the “Puzzling Predicaments in Probate” series discusses a surviving spouse’s right to elect against the Pdeceased spouse’s will where the deceased spouse devised and/or bequeathed to the surviving spouse less than the statuto- rily required amount. It also discusses a surviving spouse’s right to occupy the probate homestead and whether his/her right exists when he/she has no ownership interest in the probate homestead. Finally, it discusses whether a surviving spouse’s right to occupy the probate homestead includes the right to receive the oil and gas rents and profits accruing from the probate homestead.

SPOUSE’S ELECTION AGAINST earnings of either spouse earned during the THE WILL marriage including the property acquired with 3 This discussion requires an understanding of those earnings. Oklahoma case law holds that the term “property acquired by joint industry of “all property, not falling within the definition husband and wife during coverture.” R. Robert of separate property, acquired after the mar- Huff explains that “distinguishing between the riage by the labor either of the husband or the separate property of the spouses, and that which wife, is nevertheless deemed to be acquired by the labor of both the spouses,” and therefore was acquired during the marriage by joint 4 efforts” is required for determining what consti- constitutes jointly acquired property. tutes “jointly acquired property during cover- Where a decedent dies testate devising or ture.”1 Separate property includes property bequeathing his/her property to individuals owned by either spouse before marriage, prop- other than his/her spouse, effectively disinher- erty received by gift or inheritance, generally iting that spouse, the law protects the disinher- any income from separate property provided ited spouse with an elective forced share against said income is not a result of the joint efforts of the will.5 The spouse may elect to take an undi- the parties, and any “changes in the form of vided one-half interest in the property acquired separate property” provided the property through joint industry in lieu of any bequests, remains identifiable.2 Whereas, property ac- legacies or devises to the spouse.6 The spouse quired by joint industry during coverture may only elect against the will if the testator generally includes any property acquired dur- devised or bequeathed more than one-half of the ing marriage, separate property that has been property acquired by the joint industry of the “comingled and blended with jointly acquired husband and wife during coverture away from property as to have lost its identity,” and the the spouse. In other words, a surviving spouse

160 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 has the right to an undivided one-half interest in decedent’s property passed to a joint owner the property acquired by the joint industry of (other than the spouse) with right of survivor- the husband and wife during coverture.7 ship upon the decedent’s death, or whether the decedent’s property transferred to someone There has been some debate as to whether or other than the surviving spouse by devise.12 The not a spouse may also take a portion of the prop- Oklahoma Supreme Court, in erty not acquired by joint indus- Casey v. Casey, concluded that try during coverture. W. Thom- while a surviving spouse’s right as Coffman and R. Robert Huff to occupy the homestead is conclude that a surviving superior to the interests of devi- spouse is limited to the election Would a surviving sees, no homestead interest of an undivided one-half inter- exists where property transfers est in the property acquired by spouse have the right to to a joint tenant with right of joint industry during coverture survivorship upon the dece- under 84 O.S. §44.8 Both author- possess and occupy the dent’s death.13 The court rea- ities conclude that prior to the soned that when the decedent’s July 1, 1985 amendment to 84 homestead where the ownership terminates and vests O.S. §44, a surviving spouse by operation of law in a surviv- who elected to take a forced decedent’s property ing joint tenant, neither the share could do so under the spouse nor the decedent’s estate laws of intestate succession and passed to a beneficiary had an ownership interest in was therefore not limited to the property, and therefore the taking a portion of property (other than the homestead was “not reserved acquired only by the joint indus- to the family and the widow try of the husband and wife surviving spouse) using had no homestead right of pos- during coverture.9 Oklahoma’s new session and occupation.”14 In Additionally, there are public summary, where the decedent, policy concerns with the 1985 transfer-on-death prior to his/her death, owned amendment. Both Coffman and property in joint tenancy with Huff interpret the new language deed? right of survivorship with of 84 O.S. §44, which applies to someone other than the surviv- testators dying after July 1, ing spouse, and that property 1985, as severely limiting the was the couple’s principal resi- protection of an elective forced share and disal- dence during marriage,15 the surviving spouse lowing a surviving spouse from electing under does not have a right to continued possession of the laws of intestate succession enumerated in the property upon the decedent’s death. 84 O.S. §213.10 Others might view the amend- Would a surviving spouse have the right to ment as an equitable solution to the ongoing possess and occupy the homestead where the battle between the public policy of protecting decedent’s property passed to a beneficiary the surviving spouse and protecting the testa- (other than the surviving spouse) using Okla- tor’s right to bequeath or devise his property as homa’s new transfer-on-death deed? When he wishes. Under Robert Huff’s argument, which applying the reasoning used in Casey v. Casey, promotes the protection of the surviving spouse, it appears that the transfer of property to a the testator’s intent is thwarted. Oklahoma’s grantee beneficiary of a transfer-on-death deed amendment to 84 O.S. §44 may be an attempt to is similar to the transfer of property to a surviv- balance spousal protection and equitable distri- ing joint tenant of a joint tenancy with right of bution of a testator’s estate in a manner that survivorship. The court in Casey v. Casey rea- more accurately comports with his/her intent. soned that “a deceased joint tenant’s interest PROBATE HOMESTEAD passes by operation of law to surviving joint tenants at the instant of the joint tenant’s Oklahoma law provides, “[u]pon the death death.”16 Similarly, the grantee beneficiary’s of either husband or wife, the survivor may interest in property granted in a transfer-on- possess and occupy the whole homestead.”11 death deed vests upon the grantor’s death.17 Does this statute apply where the surviving Furthermore, the transfer of property using a spouse has no ownership interest in the prop- transfer-on-death deed is similar to property erty? It depends. It depends on whether the passing by joint tenancy with right of survivor-

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 161 ship in that the property passes outside the stead.29 Finally, a homestead occupant may not decedent’s estate and is not subject to probate execute a new lease where the lease existing at administration.18 In addition, a transfer-on- the decedent’s death terminates according to death deed is not similar to a devise in a will. its terms.30 The Nontestatmentary Transfer of Property Act Do these rights exist as against the owner of states that a transfer-on-death deed “shall not the homestead property (devisees), where the be considered a testamentary disposition.”19 surviving homestead occupant does not have Finally, assets placed in joint tenancy with right an ownership interest in the homestead prop- of survivorship are not affected by a later will.20 erty? Yes. The Supreme Court in Lawley v. Rich- The Nontestamentary Transfer of Property Act ardson held, “the homestead interest is jointly states that “a transfer-on-death deed executed, vested in the husband and wife for the benefit acknowledged and recorded in accordance of themselves and family, without regard to with the Nontestamentary Transfer of Property which spouse owns the title to the land.”31 The Act may not be revoked by the provisions of a court in the same case held that a homestead will.”21 If a transfer-on-death deed is deter- occupant is entitled, “as against the heirs of mined to transfer property in the same manner the decedent,” to receive the royalties accruing as a joint tenancy with right of survivorship, as a result of an oil and gas lease executed and the decedent’s ownership terminates and prior to the decedent’s death.32 In other words, vests by operation of law in the grantee benefi- “the property interest of the heirs is suspended ciary upon the grantor’s death, neither the during the occupancy of the homestead by the spouse nor the decedent’s estate will have an survivor.”33 In summary, Oklahoma law per- ownership interest in the property, and the sur- mits a homestead occupant to receive rents viving spouse will have no right to occupy or and profits arising from the homestead even possess the probate homestead.22 where such occupant has no ownership inter- PROBATE HOMESTEAD — RIGHTS AS est in the property. TO OIL AND GAS RENTS AND PROFITS CONCLUSION What homestead rights does a surviving spouse have in addition to his/her right to An understanding of these issues is useful in occupy the homestead upon the decedent developing estate plans. A careful practitioner spouse’s death? Specifically, does a homestead will explore all the vehicles to accomplish the occupant have the right to receive rents or prof- testator’s estate goals, and educate the client its or to grant a new oil and gas lease? The law about the repercussions of each option. treats homestead occupants analogous to life- 1. R. Robert Huff, 1 Okla. Prob. Law & Prac. §3.22, Property Acquired tenants.23 As such, the “open mine doctrine” by Joint Industry of Husband and Wife During Coverture (3d ed.). applies to this analysis.24 The “open mine doc- 2. Id. 3. Id. trine” concerns a life-tenant’s duty to refrain 4. Id. (citing In Re Keith’s Estate, 1956 OK 178, ¶ 4, 298 P.2d 423, 425 from committing waste on the property. When (quoting Turner v. First Nat. Bank & Trust Co., 1955 OK 369, ¬¶ 22, 292 P.2d 1012, 1016)) (emphasis added). a life-tenant opens a mine after he/she takes 5. 84 O.S. §44(B)(2) (2001). possession of the property, the law considers 6. Id. 7. Id. such action waste (unless a special exception 8. W. Thomas Coffman, Planning, Will Drafting, and Estate Adminis- applies).25 However, the law permits a life-ten- tration Forms vol. 2, §II-1.4 (Lexis Nexis 2007); Robert Huff, Being Mar- ried Ain’t What It Used To Be Under The New Law of Wills and Succession, ant to continue to work mines that existed 57 Oklahoma Bar Journal, pt. 3, at 2304. 26 when the life-tenant took possession. In accor- 9. W. Thomas Coffman at II-I-17; Huff, 57 Oklahoma Bar Journal, pt. 3 dance with this doctrine, the homestead occu- at 2302. 10. W. Thomas Coffman at II-I-22; Huff, 57 Oklahoma Bar Journal, pt. 3 pant is entitled to receive all the rents and at 2301-2305. profits “which may accrue from the lands by 11. 58 O.S. §311 (2001). 12. Casey v. Casey, 2005 OK 13, ¶ 12, 109 P.3d 345, 349-350. reason of minerals which may be produced 13. Id. at ¶ 11, 109 P.3d at 349-351. from mines or wells existing at the time of the 14. Id. at ¶ 13, 109 P.3d at 351. 27 15. 31 O.S.Supp.2005 §1. death of the testator.” In other words, the 16. Casey, at ¶ 13, 109 P.3d at 350. homestead occupant “takes the land in the con- 17. 58 O.S.Supp.2008 §1255. dition in which it was when the estate vested” 18. Casey, at ¶ 12, 109 P.3d at 350. 19. 58 O.S.Supp.2008 §1258. 28 (i.e. on the date of the decedent’s death). In 20. R. Robert Huff, 1 Okla. Prob. Law & Prac. §12.4, Joint Tenancy addition, a homestead occupant may “sell and (3d ed.) (citing Matter of Estate of Ingram, 1994 OK 51, ¶ 14, 874 P.2d 1282, 1286). convey [his/her] right to receive royalties” so 21. 58 O.S.Supp.2008 §1254. long as the land remains the survivor’s home- 22. Casey, at ¶ 13, 109 P.3d at 351.

162 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 23. Hembree v. Magnolia Petroleum Co., 1935 OK 893, ¶ 15, 56 P.2d 851, 853; Lawley v. Richardson, 1924 OK 144, ¶ 13, 223 P. 156, 158. 24. See id. at ¶ 15, 56 P.2d at 853. 25. Lawley, at ¶ 6, 223 P. at 158 (quoting Cherokee Const. Co. v. Harris, 122 S.W. 485 (Ark. 1909). 26. Id. 27. Hembree, at ¶ 15, 56 P.2d at 853 (quoting Lawley, at ¶ 13, 223 P. at 159) (emphasis added). 28. Hembree, at ¶ 15, 56 P.2d at 853 (quoting Lawley, at ¶ 13, 223 P. at 159) (emphasis added). 29. Lusk v. Carter Oil Co., 1935 OK 636, ¶ 0, 53 P.2d 656, 657. 30. Hayser v. Frankfort Oil Co., 316 F.2d 441, 443 (10th Cir. 1963). 31. Lawley, at ¶ 4, 223 P. at 157 (citing Hawkins v. Corbit, 1921 OK 345, 201 P. 649 (quoting Pettis v. Johnston 1920 OK 224, ¶ 38, 190 P. 681, 693)) (emphasis added). 32. Lawley v. Richardson, 1924 OK 144, ¶ 13, 223 P. 156, 158; Tarman v. Pierce, 1934 OK 335, ¶ 38, 33 P.2d 203, 207. 33. Lusk, at ¶ 24, 53 P.2d at 659 (quoting In Re Gardner’s Estate, 1926 OK 167, 250 P. 490).

About The AuthorS

Linda G. Morrissey is a Tulsa County district judge currently presiding over a civil docket. She has presided over probate, felony criminal, drug court, mental health and domestic violence dockets as well as family and child support enforcement dockets. During her judicial tenure, she has served as chief judge of the civil, probate and domestic dockets. She received a law degree from OU in 1980 and a master’s degree in counseling from OSU in 1977.

Julie Bushyhead graduated from TU Law in May 2009 and has been licensed to practice law since September 2009. She was recently hired as a state’s attorney for Okla- homa Child Support Services in Tulsa. During law school, she interned with Judge Morrissey and assisted her with various research projects and presentations on the topic of probate law. She is a member of the Tulsa County Bar Association and Hudson-Hall-Wheaton Inns of Court.

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 163 SCHOLARLY ARTICLE

Probate and Oil and Gas Development Puzzling Predicaments in Probate Part III By Judge Linda Morrissey and Julie Bushyhead

art III of the “Puzzling Predicaments in Probate” series concerns the sale of oil and gas assets during probate and dis- Pcusses two scenarios: 1) estate owns land and the personal representative wants to execute a lease, and 2) estate owns a leasehold interest and the personal representative wants to sell that interest. This article also discusses the inherent unreliability of affidavits of heirship as it relates to oil and gas interests.

ACQUISITION OF AN OIL AND GAS For those transactions in which the bonus LEASEFROM A DECEDENT’S ESTATE1 exceeds $500, the district court in which the probate proceedings are pending has jurisdic- In Oklahoma, personal representatives (not 6 “special administrators” with limited authority tion to order the sale after filing of a petition. pursuant to 58 O.S. §215) of the estates of The petition must allege that the estate of the deceased persons are “authorized to sell and deceased person is the owner of the land execute oil and gas or other mining leases upon described in the petition, that the land has a the lands belonging to the [respective] estates… probable value for oil and gas or other mining for a term not to exceed 10 years and as long purposes, that the estate is not financially thereafter as oil, gas, or other minerals may be capable or that it is impractical for the estate to explore the land for oil and gas, and that it is in produced in paying quantities.”2 If the lease bonus is over $500, a petition seeking court the best interest of the estate to lease the land at public auction to the highest bidder in exchange approval must be filed with the probate court.3 If for cash.7 In addition, the petition must include the bonus does not exceed $500 the personal 8 representative has the authority to execute all the names and addresses of the heirs of the deceased person and must be verified by the instruments of conveyance of an oil and gas 9 lease on property of the estate in his trust without personal representative. notice or court proceedings other than approval After the petition is filed and upon showing of the conveyance by the judge of the court hav- a benefit to the estate, the court has discretion ing jurisdiction of the proceeding endorsed on as to whether to issue an order authorizing and the instrument of conveyance with a finding by directing the sale of a lease upon the lands the court that the bonus value of the lease does described in the petition for oil and gas or other not exceed $500.”4 The bonus value is the present mining purposes.10 The sale is to be held at value of the difference between the economic public auction to the highest bidder, and is to rental, meaning the fair market value of the be held in the courtroom not less than five days leasehold interest, and the contract rental, which from the date this order is issued.11 Notice of is the actual rent paid in accordance with the sale is to be given by publication one time in a terms of the lease agreement.5 newspaper in the county where the court is situated and in the county where the land is

164 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 located, and by mailing to the heirs of a the approval of the district court where the deceased person, at least five days prior to probate proceedings are pending.23 sale.12 Again, notice to the heirs, devisees and If the decedent’s will empowers the personal legatees is the better practice. representative to sell real property, it is not nec- The personal representative shall file a return essary for the personal representative to seek court of sale showing the land upon which the lease approval, and the personal representative may was sold, the term of years of the lease, the sell or otherwise deal with any property of the name of the purchaser, and the amount received estate at his or her discretion; but, the personal for the lease.13 A copy of the form of the lease representative must make return of such sales.24 proposed to be executed shall be attached to If directions are given in the will as to how the the return of sale.14 The court shall then hold a property is to be sold, or what property is to be hearing, without further notice, and if it finds sold, such directions must be followed.25 Title that the sale was properly conducted, shall does not pass unless the sale is confirmed by confirm the sale, and direct the personal repre- the court, except that if the sale was made sentative to execute and deliver the lease.15 under order of the court, no confirmation of 26 The personal representative need not comply sale by the court is necessary. with the requirements of 58 O.S. §§924-928.1 if Alternatively, if the decedent’s will does not the decedent’s will empowers the personal rep- authorize the personal representative to sell resentative to sell oil and gas or other mineral real property or the decedent died intestate, leases.16 Instead, the personal representative the personal representative may file a petition may sell or otherwise deal with any property of or application accompanied by written con- the estate at his or her discretion; but, the per- sents from all heirs, devisees, and legatees, sonal representative must make return of such other than contingent devisees and legatees, 17 sales. Alternatively, if the personal representa- requesting the court to “enter an order…autho- tive obtains consents from all heirs, devisees rizing the personal representative to sell, grant, and legatees, and an order from the court, the lease, mortgage or encumber any real or per- personal representative may lease any real or sonal property, including mineral interests, and personal property including mineral interests to execute and issue deeds, leases, bills or sale, “without further judicial authorization or a notes, mortgages, easements and other docu- return of sale or confirmation of such sale or 18 ments of conveyance, without further judicial transaction.” authorization or a return of sale or confirma- ACQUISITION OF AN OIL AND GAS tion of such sale or transaction. Any sale or LEASEHOLD FROM A DECEDENT’S transaction so authorized shall pass title to the ESTATE19 purchaser without being confirmed by the court, notwithstanding any statutory provision Personal representatives of the estates of to the contrary.”27 Waivers and consents may be deceased persons are given authority by stat- withdrawn at any time, and all actions follow- ute to negotiate for and to sell oil and gas or ing such withdrawal must be in compliance other mineral leaseholds which are owned by with regular statutory procedures.28 The with- the estate.20 Such sale is not limited to cash drawal of the waiver or consent must be in the sales, but may also include sales made in con- form of a written statement, filed with the sideration of a drilling obligation, oil payment, court clerk, and served upon the personal rep- overriding royalty, exchange of oil and gas and resentative by certified mail.29 mineral leaseholds, or such other consideration as the court determines to be in the best inter- If the decedent’s will does not authorize the est of the estate of the decedent.21 Personal personal representative to sell real property representatives are also authorized to negotiate and the personal representative is unable to and enter into agreements that are “necessary obtain consents from all of the decedent’s heirs, or advantageous to the estate” in the operation devisees and legatees, then the personal repre- and development of any oil and gas leases sentative must file a verified application with owned by the estate, “including but not limited the court for approval after negotiating the sale to such agreements as joint operating agree- of any leasehold estate or interest therein.30 The ments, unitization agreements, re-pressurizing application must set forth the interest of the agreements, and water-flooding agreements.”22 estate in the leasehold as precisely as possible, All of these sales and agreements are subject to the lands covered by that interest, the part of or

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 165 interest in the leasehold being sold, the identity ACQUACQUISITIONISITION OF OI OFL AN OILD G ANDAS LEASES GAS LEASES AND LEASEHOLDS of the purchaser, and the consideration ten- AND LEASEHOLDS 31 dered for the sale. The application must also Procedural Chart allege that the sale is for the best interest of the Procedural Chart estate, and a copy of the proposed contract shall be attached to the application.32 An application for the approval of an agreement must state the interest of the estate in the leasehold, the lands covered by such interest, a Method 1: Petition 58 O.S. §§924-926 Method 1: Will Empowers PR 58 O.S. §462 statement of the purpose of the agreement and the interest in the leasehold covered by the 1. File Petition 1. Language in the Will agreement, and shall allege that the agreement is Must state the owner of the land - If the decedent’s will empowers the PR to sell 33 in the best interest of the estate. A copy of the That land has value for oil and gas purposes real property, it is not necessary to seek court agreement must be attached to the application.34 That estate cannot explore the land itself approval. That it is in the best interest of estate to lease If there is a sale and agreement pertaining to 2. Return of Sale Shall include the names and addresses of - However, the PR must still make a return of the same interest in the leasehold, only one decedent’s heirs 35 sale. application need be filed. Once an application 2. Petition must be verified by PR 3. Court Confirmation is filed, the court is required to fix the date for 3. Court may order sale upon showing of benefit to - Necessary unless the sale was made under 36 a hearing. Notice of the hearing for the the estate order of the court. approval of an application must set forth the 4. The Sale date and place of the hearing, the purpose of Held at public auction the hearing, and a description of the land To the highest bidder Method 2: Petition w/ Consent by all heirs, involved.37 Notice of hearing is to be given by Held in the courtroom not less than 5 days devisees, and legatees publication one time in a newspaper in the after order of sale is issued 58 O.S. §239 decedent’s county where the court is situated Notice by publication in county of presiding 1. Petition accompanied by written consents and in the county where the land is located, court and location of the land AND Notice by mailing to decedent’s heirs 2. Court Order and by mailing to the heirs, 10 days prior to the - If PR obtains such consent, court may enter an hearing.38 Notice by publication may be waived Notice must be given at least 5 days prior to the sale order authorizing the PR to sell, grant, lease, by the court upon a showing of good cause.39 5. The Return of Sale mortgage or encumber any real or personal On the date of the hearing specified in the PR shall file return of sale property notice, the court shall examine the application Show the land upon which the lease was sold - Without further judicial authorization - Without a return of sale and all evidence in support of or in opposition to The term of the lease - Without court confirmation the application.40 “Any interested person may The purchaser’s name appear and show cause why such application The amount received for the lease should not be approved.”41 If the court finds that Attach a copy of the form of the lease 6. Court Confirmation Method 3: Verified Application for Approval of Sale the sale or agreement, or both, is in the best 58 O.S. §929.2 interest of the estate, an order approving the Court shall hold a hearing without further notice application shall be entered.42 “Where an appli- Court must find that the sale was properly 1. PR makes an agreement/negotiates a sale cation covers both a sale and an agreement or conducted 2. File a verified application for the approval of a sale more than one agreement, the application may - Must state the interest of the estate in the leasehold 43 Court may confirm the sale be approved in part and denied in part.” The Court may direct the PR to execute the lease - The lands covered by such interest court must endorse its approval on any assign- - A statement of purpose of the agreement and the interest in ment, conveyance or agreement confirmed at the the leasehold hearing.44 However, before confirming a sale, the Method 2: Bonus value of the lease $500 - Allege that the agreement is in the best interest of the estate. court has discretion to require the personal rep- 58 O.S. §928.1 - Attach a copy of the agreement to the application resentative to file an additional bond in an 1. Only need approval by the judge of the court 3. Send Notice of hearing on application amount prescribed by the court.45 having jurisdiction - Shall set forth date, place, and purpose of hearing; and 2. The court must find that the bonus value of the description of land lease does not exceed $500 - Must send notice 10 days prior to the hearing date - Must be sent by mail AND by publication (one time in Method 3: Will Empowers PR – SEE CHART ON newspaper in said county); latter may be waived for good NEXT PAGE cause shown 4. Upon a finding that the sale of agreement is in the best interest Method 4: Written Consent – SEE CHART ON of the estate, the court shall approve said application NEXT PAGE

166 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 ACQUISITION OF OIL AND GAS LEASES AND LEASEHOLDS ACQUISITION OF OIL AND GAS LEASES AND LEASEHOLDS Procedural Chart Procedural Chart THE INHERENT UNRELIABILITY OF AFFIDAVITS OF HEIRSHIP Oil and gas companies often rely on affidavits of heirship for purposes of procuring oil and gas leases and pooling. Because of the Method 1: Petition 58 O.S. §§924-926 Method 1: Will Empowers PR 58 O.S. §462 Method 1: Petition 58 O.S. §§924-926 Method 1: Will Empowers PR 58 O.S. §462 inherent unreliability of these affidavits, the 1. File Petition companies rely on them at their peril. The con- 1. File Petition 1. Language1. Language in thein the Will Will cern with affidavits of heirship stems from the Must state Must the stateowner the of owner the land of the land - If the decedent’s will empowers the PR to sell That land has value for oil and gas purposes - If the decedent’s will empowers the PR to sell scenario in which the affiant is asked “who are That land has value for oil and gas purposes realreal property, property, it isit isnot not necessary necessary to to seekseek courtcourt That estate cannot explore the land itself D’s heirs-at-law” and no judicial determination That estate cannot explore the land itself approval.approval. That it is in the best interest of estate to lease of heirship is ever performed. In most cases, the That it is in the best interest of estate to lease 2. Return2. Return of Saleof Sale Shall include the names and addresses of affiant lacks the legal knowledge to correctly Shall include the names and addresses of - However,- However, the the PR PR must must still still make make a a returnreturn of decedent’sdecedent’s heirs heirs sale. identify D’s heirs at law. They may not under- sale. stand the difference between an “heir-at-law” 2. Petition2. must Petition be verifiedmust be verifiedby PR by PR 3. Court3. Court Confirmation Confirmation and a decedent’s “descendants,” “issue” or 3. Court 3.may Court order may sale order upon sale showing upon showing of benefit of benefit to to - Necessary- Necessary unless unless the the sale sale was was made made underunder the estatethe estate orderorder of theof the court. court. “devisees and legatees.” Further he/she may 4. The Sale4. The Sale not understand that the existence of a prede- Held at publicHeld at auction public auction ceased child will affect heirship, or that an To the highestTo the bidder highest bidder MethodMethod 2: Petition2: Petition w/ w/ Consent Consent by by all all heirs, heirs, adopted child (whether adopted into the family Held in theHeld courtroom in the courtroom not less not than less 5 thandays 5 days devisees,devisees, and and legatees legatees or out of the family) is treated the same as a bio- after orderafter of saleorder is of issued sale is issued 58 O.S.58 O.S. §239 §239 logical child for purposes of heirship determina- Notice byNotice publication by publication in county in countyof presiding of presiding tion. In other words, “family members tend to court andcourt location and locationof the land of theAND land AND 1. Petition1. Petition accompanied accompanied by by written written consents consents see ‘heirship’ in a less than legal fashion.”46 Notice byNotice mailing by mailingto decedent’s to decedent’s heirs heirs 2. Court2. Court Order Order - If PR obtains such consent, court may enter an The second problem occurs where the affiant Notice mustNotice be mustgiven be at given least at5 leastdays 5prior days toprior to - If PR obtains such consent, court may enter an order authorizing the PR to sell, grant, lease, 47 the sale the sale order authorizing the PR to sell, grant, lease, is an interested party. For instance, if the affi- mortgage or encumber any real or personal 5. The Return5. The of Return Sale of Sale mortgage or encumber any real or personal ant is an heir at law whose share will be diluted property PR shall file return of sale property by disclosing the existence of other heirs at law, PR shall file return of sale - Without further judicial authorization Show the Show land theupon land which upon the which lease the was lease sold was sold - Without further judicial authorization the affiant’s declaration is inherently untrust- The term of the lease - Without- Without a return a return of of sale sale worthy.48 The Texas Law of Evidence provides The term of the lease - Without court confirmation The purchaser’s The purchaser’s name name - Without court confirmation some guidance where an affiant is an interested 49 The amountThe received amount received for the leasefor the lease party. The rules state that “the declarant must Attach a copy of the form of the lease have been disinterested, i.e. had no interest or Attach a copy of the form of the lease 6. Court Confirmation Method 3: Verified Application for Approval of Sale 6. Court Confirmation Method 3: Verified Application for Approval of Sale motive to deceive, at the time when the decla- Court shall hold a hearing without further 58 O.S. §929.2 50 Court shall hold a hearing without further 58 O.S. §929.2 ration was made.” In addition, the rules state notice that “declarations as to the declarant’s heirship notice 1. PR makes an agreement/negotiates a sale Court must find that the sale was properly 1. PR makes an agreement/negotiates a sale or relationship to a certain person, made after Court mustconducted find that the sale was properly 2. File a verified application for the approval of a sale conducted 2. File a- verified Must state application the interest for of the estateapproval in the of leaseholda sale descent cast upon him as to property belong- Court may confirm the sale - Must state the interest of the estate in the leasehold ing to such person[,] are not admissible on Court may Court confirm may directthe sale the PR to execute the lease - The lands covered by such interest Court may direct the PR to execute the lease - The- Alands statement covered of purpose by such of interest the agreement and the interest in behalf of the declarant or persons claiming that 51 - A statementthe leasehold of purpose of the agreement and the interest in property under him.” the leasehold Method 2: Bonus value of the lease $500 - Allege that the agreement is in the best interest of the estate. The combination of an affiant’s lack of legal Method 2:58 Bonus O.S. §928.1 value of the lease $500 - Allege- Attach that a the copy agreement of the agreement is in the to best the applicationinterest of the estate. 58 O.S. §928.1 - Attach a copy of the agreement to the application knowledge and potential lack of trustworthi- 1. Only need approval by the judge of the court 3. Send Notice of hearing on application ness gives cause for heightened scrutiny when 1. Only need approval by the judge of the court 3. Send- Notice Shall set of forth hearing date, on place, application and purpose of hearing; and having jurisdiction an affidavit of heirship is offered in an eviden- having2. jurisdictionThe court must find that the bonus value of the - Shalldescription set forth date,of land place, and purpose of hearing; and 2. The courtlease must does find not that exceed the bonus $500 value of the description- Must send of noticeland 10 days prior to the hearing date tiary proceeding such as a quiet title action. lease does not exceed $500 - Must- Must send be notice sent by 10 mail days AND prior by topublication the hearing (one date time in However, the trend seems to be that oil and gas Method 3: Will Empowers PR – SEE CHART ON - Mustnewspaper be sent by in mailsaid county);AND by latter publication may be waived (one time for goodin companies are willing to assume the risk asso- Method 3: Will Empowers PR – SEE CHARTNEXT PAGE ON newspapercause shown in said county); latter may be waived for good ciated with these affidavits in order to com- NEXT PAGE 4.cause Upon shown a finding that the sale of agreement is in the best interest mence drilling a well.52 Method 4: Written Consent – SEE CHART ON 4. Uponof thea finding estate, thatthe court the sale shall of approve agreement said applicationis in the best interest NEXT PAGE CONCLUSION Method 4: Written Consent – SEE CHART ON of the estate, the court shall approve said application NEXT PAGE Probate law offers many challenging nuances with regard to the reliability of information offered for notice and estate beneficiary determinations. One should give consideration to the

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 167 potential for inaccurate (although unintended) 44. Id. 45. 58 O.S. §929.5 (2001). information due to a lack of understanding of 46. Terry E. Hogwood, Title Examination: Curing Title With Affidavits, probate law. Careful inquiry by the court is 2009 Landman 55 (March/April 2009). 47. Id. at 56. essential to ensure that the law is followed. 48. Id. 49. Id. 1. Various portions of this article contributed by attorney Anne 50. Id. Zimmermann in collaboration with Judge Linda Morrissey during her 51. Id. judicial internship as a law student. 52. Id. at 57. 2. 58 O.S. §924 (2001). 3. 58 O.S. §928.1 (2001). 4. Id. 5. City of Riverside v. Progressive Investment Club of Kansas City, Inc., 45 About The AuthorS S.W. 3d 905, 911 (Mo. Ct. App. 2001). 6. 58 O.S. §924. 7. Id. Linda G. Morrissey is a Tulsa 8. A better practice would be to name the “heirs, legatees and devi- County district judge currently sees” because they are entitled to notice of probate proceedings under 58 O.S. §25 (2001). presiding over a civil docket. She 9. 58 O.S. §924. has presided over probate, felony 10. 58 O.S. §925 (2001). criminal, drug court, mental health 11. Id. 12. Id. and domestic violence dockets as 13. 58 O.S. §926 (2001). well as family and child support 14. Id. 15. Id. enforcement dockets. During her 16. 58 O.S. §924. judicial tenure, she has served as 17. 58 O.S. §462 (2001). 18. 58 O.S. Supp. 2010 §239. chief judge of the civil, probate 19. Various portions of this article contributed by attorney Anne and domestic dockets. She received a law degree from Zimmermann in collaboration with Judge Linda Morrissey during her judicial internship as a law student. OU in 1980 and a master’s degree in counseling from 20. 58 O.S. §929.1 (2001). OSU in 1977. 21. Id. 22. Id. 23. Id. 24. Id. See also 58 O.S. §462. Julie Bushyhead graduated from 25. 58 O.S. §462. 26. Id. TU Law in May 2009 and has 27. 58 O.S. Supp. 2010 §239 (emphasis added). been licensed to practice law since 28. Id. 29. Id. September 2009. She was recently 30. 58 O.S. §929.2 (2001). hired as a state’s attorney for Okla- 31. Id. 32. Id. homa Child Support Services in 33. Id. Tulsa. During law school, she 34. Id. interned with Judge Morrissey and 35. Id. 36. Id. assisted her with various research 37. 58 O.S. §929.3 (2001). projects and presentations on the 38. Id. 39. Id. topic of probate law. She is a member of the Tulsa 40. 58 O.S. §929.4 (2001). County Bar Association and Hudson-Hall-Wheaton 41. Id. 42. Id. Inns of Court. 43. Id.

168 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 LAW PRACTICE TIPS

Reviewing 2010 Technology Trends Should Make Lawyers Think About What They Need in 2011 By Jim Calloway, Director, OBA Management Assistance Program

(Author’s Note: This is a fol- a couple of lawyers just the Droid phones are one alter- low up to last month’s column other day. Then while I was native to the iPhone and the titled “Reviewing 2010 Should visiting with them, I used my HTC Droid Incredible from Make Lawyers Think About the iPhone several times to do Verizon gets great reviews. Future.” There I discussed many what they were asking of me. Many of you have already general business trends. This (I checked my calendar, used heard that Verizon is moving month I will focus on technology Dragon Dictation app to dic- into the iPhone market as trends.) tate an e-mail to my assistant well. I know that many law- that was too long for me to yers are quite pleased with GOING MOBILE phone-type and used Google their Blackberries as well. The most significant current voice search to locate the URL Despite the WSJ headline technology trend is easily of a website we were discuss- above, lawyers still “go mobile computing. ing.) To me, the significance of mobile” with their laptops. the smartphone is the number The Wall Street Journal ran a I think most lawyers now of times a day I can just do story this month titled “Bye- either have access to a laptop something instead of making Bye, PCs and Laptops: Smart- or use it as their primary a note (or forgetting) to do phones and tablets will soon workstation. Certainly desk- it later. handle the majority of our tops will continue to have personal computing needs.” Apps give smartphones an their places in law offices (e.g. (www.tinyurl.com/2anhvgs enormous range of flexibility. the reception desk), but there (short URL) Please note that Take a few minutes to look to are many reasons now why a refers to “personal” comput- the great, award-winning blog lawyer’s primary workstation ing needs. I don’t see lawyers iPhoneJD and the list of apps should be a laptop. (Note to preparing lengthy legal briefs presented at ABA TECH- lawyers who work in larger on their smartphones this SHOW’s 60 iPhone Apps in 60 firms: Your IT staff does have year frequently. (Although Minutes at www.tinyurl.com/ good reasons to disagree with somewhere a lawyer reading- yfcb88g. For more details, see that observation.) will read this who has already the ABA Journal’s coverage of THE IPAD edited a brief or pleading on a the presentation at www. smartphone when the day tinyurl.com/276e6xw. Law- By now, most readers have didn’t go as planned.) yers who have iPhones seen an iPad (or at least heard should consider subscribing of them.) It seems hard to It does seem to me that we to (or at least regularly believe that the iPad was just have reached the point where visiting) iPhoneJD at released in April 2010. Apple every lawyer should invest in www.iphonejd.com. sold three million of them in a smartphone and learn how the first 80 days. This is truly to use it. I made that point to

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 169 large a hard drive on their workstation. (A terabyte magazine to your iPad equals 1024 gigabytes.) Then and carrying it (and sev- an offsite backup should be eral prior editions) done either manually or by everywhere with you using an online backup ser- may be worth paying vice like Corevault, which is for a subscription in endorsed by the OBA. a way that password-protected Automated backup process- Web access to es are very important. Staff news has not time and lawyer’s time is seemed to be for many. valuable and a system that requires a few hours a week I’ll devote this entire space to manually do this will be to iPads a bit later this year. quite costly over the long Meanwhile, those who are term. But more importantly, interested can visit Websites in a busy law firm, it is possi- a game-changer in personal ble that the backup will not technology use. It will not like Tablet Legal by Josh Bar- rett (www.tabletlegal.com), get done in the face of filing surprise me to see this growth deadlines or other tasks. continue and many people Legal iPad by Niki Black carrying iPads or the newly (www.legal-ipad.com) and There are also interesting released competitors, instead iPad Notebook by Justin products like rugged hard of laptops or netbooks very Kahn (www.ipadnotebook. drives from ioSafe (www. soon. I am a bit biased against wordpress.com.) iosafe.com) that are crush- some of the early competitors DATA PROTECTION proof, waterproof and fire- for lawyer use because they proof (up to 1550°F for half an have seven-inch displays rath- Protection of our data hour.) The company recently er than 10-inch displays. A 10- should be a continuing area of announced a portable rugged inch display does a much bet- focus for all lawyers, both in hard drive at the Consumer ter job of displaying 8 1/2” by our personal and professional Electronics Show. If you 11” documents if you want to lives. Because hard drives are decline to backup data offsite, hand it to a client or judge. so cheap, it simply does not then this may be a product make sense to skimp on back- for you. It is becoming clear to me up. At a minimum, the law that trial lawyers are going to firm should have two sets of WINDOWS 7 appreciate the iPad in the data within the office and one In 2010, I moved to Win- courtroom because it can easi- safely stored miles away. A dows 7, which was a great ly be held in one hand or RAID or other redundant sys- relief. I hated the early ver- placed on the podium while tem works within the office sions of Vista with a passion questioning a witness as for those with the ability and still do not like it. I really opposed to even the smallest (or staff) to set it up and did not care much about oper- netbook. They provide a digi- maintain it. ating systems. I just wanted tal substitute to the traditional an OS to run my applications. legal pad when apps are No expertise is required for But Windows 7 delivers on installed that lets one do a solo practitioner with one the broken promises of Vista. annotations on the fly. computer to buy a portable hard drive pre-configured If you have a relatively new The first time reading an with automatic backup soft- computer with Win XP, you iPad-optimized newspaper or ware that plugs into a USB can upgrade, but it is not easy magazine is quite an experi- port and works quietly in the because a removal of the old ence, with videos and links to background after it is set up. OS and a clean install is websites seamlessly woven in. For example, our department required. If you have an old The iPad may be the advance recently purchased a one tera- computer with XP, it probably that saves the newspaper byte portable hard drive at makes more sense just to buy industry because download- Walmart for $119 and I doubt a new PC with Windows 7 ing the entire newspaper or anyone reading this has that preinstalled.

170 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 I won’t go into all of the ering a move to Windows 7 their phones hit or the great features here, but the will also want to read Scott geo-tags in photos that they federated search is really Basset’s post on why one have taken. impressive, particularly for should probably buy Win- With iOS 4 for the iPhone, those who never used a third dows 7 Professional instead of one no longer has to pay an party desktop search tool like home premium at www. annual fee for MobileMe to be X1 or Copernic. Pinning the tinyurl.com/3xgjozu. able to track their lost iPhone most commonly used applica- ADOBE ACROBAT X from their computer. This will tions to the Taskbar is a nice be a great assistance in timesaver. Even the old Win- The newly-released Adobe retrieving lost phones, and dows Calculator has received Acrobat X was just named there has already been one a face lift. Now it does many Best Business App of the year online account of someone kinds of unit conversions by PC Magazine. See link to who used this feature to (temperature, weight, area the story under “More Prod- harass a thief into returning and eight others), date cal- ucts” below. The article said, the iPhone by sending “I culations and amortization “Adobe Acrobat is the leading know where you are” messag- of loans. software for creating, reading es and using Google Maps to and managing PDF docu- I might not be using Win- send the phone photos of the ments and is now truly the dows 7 yet if OBA Executive apartment complex where the best due to the latest improve- Director John Morris Williams thief apparently lived. ments to speed and the inter- had not asked me to do a pre- face, not to mention powerful It will not be long before sentation on it at the annual automation features and the family lawyers start hearing meeting of the National Asso- ability to gather data from from potential clients who ciation of Bar Executives in PDF forms.” used this feature installed on August 2010 with Catherine the home computer to track Sanders Reach of the ABA It won’t be too long before errant spouses as well. Legal Technology Resource many law firms are routinely Center and Nerino J. Petro Jr., sending out PDFs to clients COMPUTING IN the Practice Management for them to complete in THE CLOUD Advisor for the Law Office Adobe Reader and return. Cloud computing is a very Management Assistance pro- Then the law firms can hot topic. OBA Ethics Counsel gram of the State Bar of Wis- extracting the answer out for Travis Pickens had a nice arti- consin. As a result of that pre- uses within the law firm with- cle on the ethics of lawyers sentation Nerino prepared a out having to re-enter the using cloud computing in the blog post, Windows 7 information. I have not tried November 2010 Oklahoma Bar Resource Links that are Use- Adobe X, but reviewers say Journal and we heard from ful, which is online at www. that lawyers will appreciate Jack Newton, the CEO of the tinyurl.com/2935cjy. I strong- the improved PDF to Micro- company that produces the ly suggest you visit that soft Word conversion tools. resource. cloud computing law practice LOCATION-BASED management solution Clio at There is also a nice collec- SERVICES the 2010 OBA Solo & Small tion of articles in the PC World Firm Conference. Windows 7 Center (www. An interesting issue that pcmag.com/Windows_7) will impact our professions is Dropbox.com is one cool, with numerous free articles the rise of location-based free tool for online document like “10 Tips That Make Win- social networking services storage and synchronization dows 7 Simpler” and “Win- like Yelp and FourSquare and that I started using last year, dows 7: The Top 10 Hidden the addition of location based and now I keep asking myself Features.” services to Facebook and why I took so long to try it Twitter. We will see lots of out. This article was written Pennsylvania-based practice interesting situations over the partially on my laptop at management advisor Ellen next few years where an indi- work and partially on a differ- Freedman points us to a free vidual’s location is sought to ent laptop at home. It was 50-page guide to Windows 7 be proven or disproven by the nice to know that, thanks to from Gizmo at www.tinyurl. location of their check-ins, Dropbox, I was always work- com/2amvdgl. Those consid- their phones, the cell towers ing on the current version of

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 171 the document, no matter now the number one Internet CONCLUSION where I was located. activity. More lawyers now By most any measure, 2010 hear from their clients about It is easy to predict that we was a year of many develop- perceived wrongs and evi- will be hearing a lot more ments in how we all use tech- dence that has been posted about cloud computing this nology and a year that saw online. For the first time last year. many exciting new products year, I heard a lawyer say in released. With the anticipated SOCIAL NETWORKING an OBA committee meeting, release of the second genera- SERVICES “I’ll take care of that. I’ll face- tion iPad and a number of book it.” A popular movie drama- new smartphones along with tized the birth of Facebook MORE PRODUCTS other developments that are this past year. More and more anticipated to be announced For more techtechnology people are using social net- soon, I would bet on 2011 products that you might find working services for business having even more big news of interest, see PC World’s and pleasure. Many people on the technology front. “Best Tech Products 2010.” now post to their social net- The full list of 100 is online at working accounts from their www.tinyurl.com/27n9mbf. phones. According to several accounts, based on Website visits, social networking is

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172 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 173 ETHICS & PROFESSIONAL RESPONSIBILITY

File Retention Guidelines Rules for Document Retention By Gina Hendryx, OBA General Counsel

A commonly asked question depend on the type of case Considerations for the reten- is how long should I maintain and/or the contents of the file. tion policy would include: a closed file? Unfortunately, For example: 1) Files will be maintained there is no hard and fast • Files pertaining to claims only for a specified period of answer to this question. Most of minors should be main- time. state ethics committees agree tained until the child is that lawyers are not obligated 2) Original documents will be beyond the age of majority to keep client files indefinitely. returned to the client upon con- and any statutes of limita- However, most jurisdictions clusion of the representation. tions have expired. concur that “clients and for- 3) The client may have the mer clients reasonably expect • Some probate, estate and/ file upon expiration of the from their lawyers that valu- or guardianship matters time period. able and useful information in may require an indetermi- the lawyer’s files, and not oth- nate retention period. 4) If not retrieved by the cli- erwise readily available to the ent, the file will be destroyed • Real estate title opinions clients, will not be premature- once the time period passes. ly and carelessly destroyed.” and title insurance work ABA Standing Committee on may require a far more 5) Clients should be sent a Ethics and Professional lengthy retention of closing letter notifying them of Responsibility, Informal Op. work product. their right to take any documents not previously fur- 1384 (1977). Ultimately, the decision nished to them and advising should be based on factors The Oklahoma Rules of Pro- them of the date that the file such as statutes of limitations, fessional Conduct (ORPC) documents will be destroyed. does not provide specific substantive law, the nature of direction or guidelines on the the particular case and the cli- 6) The law firm’s file reten- subject of file retention. How- ent’s needs. A lawyer should tion policy should be set out in ever, ORPC 1.15(a) does also consult his or her mal- the retainer agreement. practice carrier for any specific require that complete records HOW SHOULD I DISPOSE requirements it has on docu- of client account funds and OF A CLIENT’S FILE other client property be kept ment retention. MATERIAL? for five years after termination WHAT SHOULD I RETAIN A lawyer must protect a cli- of the representation. A good FROM A CLIENT’S FILE? ent’s confidences when dis- general office policy for file All lawyers and law firms posing of file contents. This retention would be the five should implement a written generally means that the file year rule imposed on trust file storage, management and must be shredded or incinerat- account records. However, retention policy and should ed. Care should be taken if the length of time that a file follow the policy uniformly. these tasks are contracted to should be retained may

174 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 outside companies. The law- ever increasing, a good docu- paperless office or are just try- yer should ensure that document retention and destruction ing to cut down on the moun- ments are disposed of without policy is a must for today’s tain of paper, it is proper to review by the contractor’s practitioner. Uniformity and store file material electronical- employees or others. You good common sense should ly. The key is to be sure and should consider retaining an provide answers to most “back up” your files. It is best index of destroyed files, copies dilemmas that arise. to do so offsite. In the case of a of your retainer agreement as computer failure, you will be MAY I STORE well as a closing letter or other FILE MATERIAL able to access all electronically correspondence which notifies ELECTRONICALLY? stored information. the client of your file retention policy. There is no requirement that you must maintain a “paper” With office space at a premi- file. If you have gone to a um and offsite storage costs

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Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 175 BOARD OF GOVERNORS ACTIONS

November Meeting Summary The Oklahoma Bar Association Board of Governors met at the Crowne Plaza Hotel in Tulsa in conjunction with the OBA Annual Meeting on Wednesday, Nov. 17, 2010.

REPORT OF THE Worthington’s retirement dates Forum. She also PRESIDENT dinner in Stillwater and participated in a conference monthly staff celebration. call with the Tulsa County Bar President Smallwood Association Community reported that he has worked REPORT OF THE PAST Outreach Committee, was a on the final details of the PRESIDENT panel participant in Johnson/ Annual Meeting to be held Sontag American Inns of in Tulsa. Past President Parsley reported he attended the Court — forms of municipal REPORT OF THE October board meeting, government, gave a pre- PRESIDENT-ELECT Professional Responsibility sentation to TAPA — topic Commission meeting and two of “Transparency in Local President-Elect Reheard meetings of the Texas County Government” and worked reported she attended the Bar Association. on the Tellers Committee for Lawyers Helping Lawyers the OBA Annual Meeting. Assistance Program training BOARD MEMBER REPORTS Governor Chesnut reported session at the bar center, Governor Brown reported he attended the October Board Military Assistance Task Force of Governors meeting and meeting, Unauthorized he attended the OBA Bench and Bar Committee meeting, evening event, OBA Diversity Practice of Law Task Force Committee meeting and special committee meeting via Legal Aid Services of Oklahoma Core Services the Ottawa County Bar teleconference, Tulsa Veterans Association meeting. Day parade and the funeral meeting, Access to Justice Committee meeting, ABA Governor Devoll reported he of Justice Opala. She also attended the October board met with Executive Director Standing Committee on Federal Judicial Improve- meeting and Garfield County Williams and staff on 2011 Bar Association November presidential initiatives and ments meeting in Philadelphia and the OBF Nominations meeting. He worked on the with representatives of reception for retiring Judge Pros 4 Vets regarding OBA Committee meeting and External Relations Committee Ron Franklin. Governor involvement. She launched Dobbs reported he attended the “Oklahoma Lawyers for meeting. He attended the OBA Pro Bono Summit and served the October board meeting America’s Heroes” program and was a guest speaker for on Veterans Day. as facilitator for all joint sessions. Governor Carter District Judge Barbara REPORT OF THE reported she attended the Swinton’s OCU law school EXECUTIVE DIRECTOR OBA Military Assistance class on alternative dispute Task Force meeting via resolution, professionalism Executive Director Williams video conferencing, October and service to the bar reported that he attended the meeting of Tulsa County association. Governor Military Assistance Task Force Bar Association Board of McCombs, unable to attend meeting, Unauthorized Directors, meeting of coaches the meeting, reported via Practice of Law Task Force of Lakeside Mock Trial Team, e-mail that he attended the meeting, Annual Meeting Tulsa County Bar Association October social event and planning meeting, National Community Outreach Com- board meeting and the Association of Bar Executives mittee and Tulsa County Bar McCurtain County Bar board meeting, Board of Bar Association Judicial Candi- Association luncheon and Examiners dinner, Judge

176 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 CLE. Governor Poarch has been busy, and she briefed approved the committee reported he attended the board on the activity. recommendations. the Kuntz Oil and Gas Past President Parsley PROPOSED ALLIANCE Conference, municipal judges complimented her on WITH PROS 4 VETS meeting and the Bohanon doing an excellent job in American Inn of Court. reorganizing the department. President-Elect Reheard Governor Shields reported A written status report of the reported Oklahoma City she attended the October PRC and OBA disciplinary attorney Reggie Whitten is board meeting, October matters for October 2010 was starting an organization to Oklahoma County Bar submitted for the board’s benefit veterans, and she Association meeting that review. recommended working with included a presentation of them to support each organi- RENEWAL OF ABA resolutions to OCBA delegates RETIREMENT AGREEMENT zation’s efforts. The board and Justice Opala’s funeral approved entering into an service. Governor Stuart ABA Retirement Fund association with the Pros 4 Vets reported he attended the Representative Jessica Young program, which will be an October board meeting, OBA reviewed information about informal association and not a Pro Bono Summit and the the membership benefit. formal, legal partnership. OBA Communications Executive Director Williams EXECUTIVE SESSION Committee meeting. recommended the three-year agreement be renewed, and REPORT OF THE YOUNG The board met in executive LAWYERS DIVISION the board concurred. It was session and voted to come out noted the executive director is of executive session. Governor Aspan reported authorized to sign contracts. NEXT MEETING the division is holding a past OBA STRATEGIC PLAN chair reception at the Annual The Board of Governors met Meeting for the first time President-Elect Reheard in Oklahoma City on Dec. 17, in many years and will be reviewed the recommen- 2010, and Jan. 14, 2011, and a honoring YLD friends and dations of the Strategic summary of those actions will fellows. She invited board Planning Committee. She be published after the minutes members to attend. reported the plan will are approved. The next REPORT OF THE GENERAL undergo a rewrite in a meeting of the Board of COUNSEL different format next year Governors will be Feb. 17-19, with a checklist component at the Post Oak Lodge near General Counsel Hendryx and assignments for each Tulsa. reported the Professional governor. The board Responsibility Commission

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 177 BAR FOUNDATION NEWS

Q&A with Oklahoma Bar Foundation President John D. Munkacsy Jr.

WHEN DID YOU FIRST GET WHAT ARE YOUR GOALS INVOLVED WITH OBF? AS OBF PRESIDENT? I became a Fellow of the This year promises to bring foundation when invited to OBF the fruition of projects join by colleagues during the that have been the subject of 1998 Annual Meeting. I was hard work by the board over then appointed to the board as the last few years. The OBF a Trustee in 2002. In 2004, I will soon be unveiling our own became a Benefactor Fellow, website as well as other social John D. Munkacsy Jr. which was the charter year for media outlets such as Face- 2011 OBF President the new leadership category. book and Twitter. These attri- In 2008, I became an officer butes will be of great assistance A. Gabriel Bass, El Reno; after having chaired the OBA in our communication with Stephen D. Beam, Weather- Grants and Awards Commit- members, grant recipients and ford; Jack L. Brown, Tulsa; tee for three years. I have had the public. We proceed to con- Brett D. Cable, McAlester; the amazing opportunity to tinually implement the OBF’s Cathy M. Christensen, Okla- personally be involved with strategic plan. And as always, homa City; Judge Valerie grantees and all of the great we will promote greater partic- Couch, Oklahoma City; Jack S. work they are able to accom- ipation and incentives in our Dawson, Oklahoma City; plish with minimal resources. Fellows program with a vari- Kevin R. Donelson, Oklahoma ety of strategies. WHY IS OBF SUCH A City, Robert S. Farris, Tulsa; VALUABLE ASSET TO We are fortunate to have a William E. Farrior, Tulsa; LEGAL SERVICES AND tremendous 2011 Board of Leonard M. Logan IV, Vinita; OTHER LAW-RELATED PRO- Trustees that continue to Michael C. Mordy, Ardmore; GRAMS IN OKLAHOMA? tirelessly give their time to Brooke Smith Murphy, Okla- A review of the historical the OBF. homa City; Judge Millie E. roster of the OBF grant recipi- Otey, Tulsa; Deborah A. Members of the 2011 Execu- Reheard, Eufaula; Briana J. ents is the beginning point to tive Committee are: John D. develop an understanding of Ross, Tulsa; Alan Souter, Munkacsy Jr., president, Tulsa; Dennis A. Smith, Clin- the foundation’s importance Lawton; Shon T. Erwin, in ensuring legal service when ton and John Morris Williams, president-elect, Lawton; Oklahoma City. there is great need and where Susan B. Shields, vice presi- law-related education pro- dent, Oklahoma City; Dietmar WHAT DO YOU THINK grams help create useful citi- K. Caudle, secretary/treasurer, PEOPLE SHOULD KNOW zens. Oklahoma attorneys are Lawton and Phil Frazier, past ABOUT THE OBF THAT doing great things in Oklaho- president, Tulsa. THEY PROBABLY DO NOT? ma through the Oklahoma Bar It is a qualified charity that Foundation and all attorneys Other members of the 2011 funds services and programs should support the good Board of Trustees are: not just for lawyers, but for works of the foundation. many diverse organizations

178 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 (legal services and law- a 10-year period and is dis- related programs) bene- counted for newly admitted fitting communities attorneys. $100 per year is statewide in Oklahoma. an insignificant expense for Each year the OBF is almost any lawyer and yet able to maximize our only about 10 percent of funding through non- our attorneys are Fellows. profit organizations that Just think utilize pro bono legal how much more we could services of lawyers and accomplish in our grants if other professionals. Law- every Oklahoma attorney yers were able to help 23 was a Fellow, or even bet- different law-related ter, a Benefactor Fellow! charitable programs this Nancy Norsworthy is the past year through their director of the foundation annual Fellows contribu- Trustees at the feet of “Lady of Justice” and IOLTA programs and tion. OBF should be a is responsible for the daily favorite charity for any ment of education, citizenship operation of the OBF. Nancy individual or group. and justice for all.” The OBF’s and staff members Tommie DISCUSS THE IMPOR- stated purpose is to “promote Lemaster and Ronda Hellman TANCE OF THE FELLOWS justice, fund essential legal are available to answer any PROGRAM AND WHY services and advance public questions regarding the EVERY OKLAHOMA awareness of the law.” Easily, OBF at (405) 416-7070 or ATTORNEY SHOULD every Oklahoma lawyer can [email protected]. BECOME A FELLOW. stand behind OBF’s mission and purpose. Indeed, I believe John D. Muncaksy Jr. is the The Mission Statement of Oklahoma attorneys should president of the Oklahoma Bar the Oklahoma Bar Foundation personally support these con- Foundation. He can be reached is, “Lawyers Transforming cepts. The cost of becoming a at [email protected]. Lives through the advance- Fellow is $1,000 payable over

From left: Tommie Lemaster, Ronda Hellman and OBF Director Nancy Norsworthy

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 179 FELLOW ENROLLMENT FORM Attorney Non-Attorney

Name: (name, as it should appear on your OBF Fellow Plaque) County Firm or other affiliation:

Mailing & delivery address:

City/State/Zip:

Phone: E-Mail Address: The Oklahoma Bar Foundation was able to assist 23 different programs or projects during 2010 and 25 in 2009 through the generosity of Oklahoma lawyers – providing free legal assistance for the poor and elderly; safe haven for the abused; protection and legal assistance to children; law-related education programs; other activities that improve the quality of justice for all Oklahomans. The Oklahoma Bar legend of help continues with YOU.

I want to be an OBF Fellow now – Bill Me Later! $100 enclosed & bill annually LAWYERS Total amount enclosed, $1,000 TRANSFORMING LIVES New Lawyer 1st Year, $25 enclosed & bill annually as stated Through education, citizenship and New Lawyer within 3 Years, $50 enclosed & bill annually as stated justice for all. I want to be recognized at the higher level of The Oklahoma Bar Sustaining Fellow & will continue my annual gift legend of help continues of at least $100 – (initial pledge should be complete) with YOU! I want to be recognized at the highest leadership level of Benefactor Fellow & annually contribute at least $300 – (initial pledge should be complete)

∞ To become a Fellow, the pledge is $1,000 payable within a 10-year period at $100 each year; however, some may choose to pay the full amount or in greater increments over a shorter period of time.

∞ The OBF offers lesser payments for newer Oklahoma Bar Association members: — First Year Lawyers: lawyers who pledge to become OBF Fellows on or before Jan. 2, of the year immediately following their admission may pay only $25 per year for two years, then only $50 for three years, and then at least $100 each year thereafter until the $1,000 pledge is fulfilled. — Within Three Years: lawyers admitted three years or less at the time of their OBF Fellow pledge may pay only $50 per year for four years and then at least $100 each year thereafter until the $1,000 pledge is fulfilled.

∞ Sustaining Fellows are those who have completed the initial $1,000 pledge and continue their $100 annual contribution to help sustain grant programs.

∞ Benefactor Fellows is the highest leadership giving level and are those who have completed the initial $1,000 pledge and pledge to pay at least $300 annually to help fund important grant programs. Benefactors lead by example.

Your Signature & Date: OBA Bar#

PLEASE KINDLY MAKE CHECKS PAYABLE TO: Oklahoma Bar Foundation • P.O. Box 53036 • Oklahoma City, OK 73152-3036 • (405) 416-7070 Many thanks for your support & generosity!

180 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 LAWYERS FOR HEROES

Working Together for Good: Oklahoma Lawyers for Heroes and Pros 4 Vets

Military men and women on the line to protect our free- visit our men and women in make sacrifices for their coun- doms and as lawyers, we uniform. The man has even try every day, yet they often should use our talents to taken fire and risked his life face numerous challenges serve the needs of those men to boost morale among our related to their service before, and women who keep this troops. Toby, Roy and Tom- during and after their deploy- country safe. ” mie could be doing anything, ment. “Pros 4 Vets” is an anywhere, but they are choos- Mr. Keith, Mr. Williams and Oklahoma-based organization ing to support this cause. I Mr. Harris are among the co- created to help meet the think it is really incredible.” founders of Pros 4 Vets. Mr. growing need for resources Retired Major General and Keith is best known for his to help service members with newly appointed Secretary of career as a country singer, those challenges. The non- Veterans Affairs Rita Aragon profit group, co-founded and State Senator Steve by Oklahoma City attor- Russell are also working ney Reggie Whitten, har- with the group. nesses the power of star OKLAHOMA LAWYERS professional athletes, FOR AMERICA’S musicians and other HEROES celebrities to spotlight the difficult issues service OBA 2011 President members face. The Okla- Deborah Reheard of homa Bar Association will Eufaula has made assist- begin working with Pros 4 ing military members and Vets this year to spread veterans with their legal the word about its new obstacles her top priority legal assistance initiative, for her term as president. “Oklahoma Lawyers for She explains it is impor- America’s Heroes.” tant to work with organizations like Pros 4 Vets in Reggie Whitten told the order to reach as many OBA, “In talking with our service men and women friends Toby Keith, Roy as possible. Williams and Tommie Harris, and Mr. Williams and Mr. among others, it became Harris are both former Uni- Ms. Reheard said, “People apparent to us that our veter- versity of Oklahoma football don’t always want to hear ans have significant needs standouts currently playing attorneys and doctors and that are not being met. One of in the NFL. Mr. Whitten said, dentists talk about what we the biggest needs we saw was “Everyone knows that Toby need to do for our veterans. for legal assistance. We as Keith is a big supporter of They want to hear somebody Americans owe it to our vet- our veterans, but I don’t think with celebrity status. The erans to take care of them everyone knows how many football stars and entertainers because they put their lives times he has gone overseas to will be the megaphone, but

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 181 we will be the professionals to work with us on this down over the jungle and standing behind them ready important project.” survived only to later die in a to assist our veterans with Mr. Whitten believes Pros 4 training exercise in 1987. Lau- their issues.” Vets and the Bar Association ren had a very successful law Ms. Reheard believes the are already working very well practice, but because this bar has done a decent job together, and says that is due cause is so close to her heart, assisting veterans so far, but to the leadership of both she chose to leave that all says a better effort can be organizations, including the behind to make this a priority. made this year through the OBA’s Military Assistance In my opinion, Lauren was alliance with Pros 4 Vets. Task Force, the group work- born and bred to help veter- ing to launch Oklahoma Law- ans. She and President “I saw so many people yers for America’s Heroes. Reheard are already working coming in to my office, and very closely together to make you could trace their legal this program a success. Pros 4 problems back to their mili- Vets is putting a great deal tary service,” she said. “They sacrifice on so many different From the of resources behind this pro- levels, dealing with family gram and will play a major challenges, their children, beginning, she had role in the administration and even criminal issues. My term support for the effort.” as president just happened to the vision of how In the upcoming year, coincide with a year Oklaho- plans to expand the program ma will send 4,000 troops to Pros 4 Vets and the include several events as Afghanistan. We need to take well as a memorial project care of them while they are bar would work to honor Oklahoma’s heroes there and when they come who did not make it home to back. We also need to take together on this enjoy their freedoms. With care of all those who have more and more celebrity gone before them, going all project, and it has the way back to World War II. spokespersons signing on It’s just the right thing to do.” every day, Pros 4 Vets is gain- worked beautifully. ing momentum and will only PROS 4 VETS grow from here. Mr. Whitten STEPPING UP said, “I am so excited that we Mr. Whitten said, “Pros 4 are starting this legal assis- Vets and the Oklahoma Bar “Deborah Reheard has tance program here in Oklaho- Association share a common taken the initiative to get this ma, but I think once we get it interest in helping provide program up and running,” up and going, we are going to free legal services to our vet- Mr. Whitten said. “From the make Oklahoma the model for erans. Pros 4 Vets will bring beginning, she had the vision the nation. I firmly believe the media attention needed of how Pros 4 Vets and the that Pros 4 Vets will become a to the cause through its high bar would work together major player in helping veter- profile professional entertain- on this project, and it has ans all over the country, and ers and will also provide a worked beautifully. Pros 4 we are proud to work with the Vets could not do this with- great deal of support and OBA to make that happen.” manpower to the program. out the bar and her leader- The bar has the ability to plug ship and passion. In addition, More information about directly into the legal commu- attorney Lauren Guhl is serv- Pros 4 Vets can be found nity and get attorneys signed ing full time as the executive online at www.pros4vets.org. up to help. It really is a win- director of Pros 4 Vets. Lau- To volunteer legal services to win situation, and I am so ren’s father was a two-time a military member in need, pleased that the bar is willing Vietnam vet, who was shot visit www.okbar.org/heroes.

182 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 ACCESS TO JUSTICE

Pro Bono Summit Produces Ideas By Judith Maute

On Oct. 29, 2010, the inaugu- break-out moderators and the ral “Key Stakeholders Pro student scriveners. The Sum- LEGAL AID LAUNCHES Bono Summit” gathered mit, held at the OU College of STATEWIDE PHONE LINE TO together over 50 Oklahoma Law, was planned in conjunc- APPLY FOR LEGAL SERVICES judges, bar leaders and practi- tion with the National Cele- Legal Aid Services of Oklahoma Inc. tioners to brainstorm about bration of Pro Bono Week. has launched its first statewide phone specific ways to improve Colorado Supreme Court line to better serve the increasing access to justice in civil matters Justice Gregory Hobbs deliv- number of low-income and elderly statewide. By all accounts, it Oklahomans facing civil legal problems. ered the keynote address, was a grand success, bringing “Access to Justice: The Single The number to call to apply for together the wisdom, energy Most Compelling Reason for services is (888) 534-5243. Callers and enthusiasm of many who a Legal Profession.” Justice need to leave a brief message about care deeply about the quality their legal issue as well as their name Hobbs is a leader in pro bono of affordable justice to Oklaho- and phone number. Most callers will development and access to mans of low and moderate receive a call back within one day to justice issues; the Colorado incomes. After working sever- determine eligibility for services, and Supreme Court has estab- all callers will be called back within al years on various issues, the lished programs to encourage three days. OBA Access to Justice Com- pro bono and limited scope mittee determined that the Legal Aid’s statewide application representation by lawyers only way to make real prog- line (888) 534-5243 is the point of and provides statewide forms entry for all clients including senior ress was through statewide available for use by pro se law project applicants. After clients collaboration with others. litigants. Retired Oklahoma are deemed eligible for Legal Aid’s services, based on their income, Participating in the summit County Judge James Paddle- assets and type of legal problem, their were representatives of the ford was honored for his trail- cases will be referred to one of Legal bench and bar, the executive blazing pro bono activities, Aid’s 21 local offices for service. branch, law schools and low- which include preparing easi- Legal Aid Services of Oklahoma is income legal service provid- ly accessible forms for simple a not-for-profit law firm which pro- ers. The committee gratefully guardianships and appearing vides free civil legal assistance to eli- acknowledges the support and weekly at the Oklahoma gible low-income individuals and their assistance of 2010 OBA Presi- County Courthouse to provide families and to elderly persons in the dent Allen Smallwood, Execu- information about the legal areas of family, consumer, housing, tive Director John Williams, process to obtain guardian- health and employment. Legal Aid and sponsorship by the Board ships for minor children. attorneys and staff work through a network of fully-staffed law offices and of Governors, Legal Aid Ser- OBA Bench and Bar Com- satellite offices, serving eligible clients vices of Oklahoma Inc., the mittee Co-chair Jack Brown in all 77 counties of Oklahoma. University of Oklahoma Col- moderated the afternoon’s ple- lege of Law and Oklahoma Funding for Legal Aid is from the nary sessions. The opening Legal Services Corporation, the state of City University School of Law. plenary provided guidance on Oklahoma, the Oklahoma Bar Founda- Further thanks are due each of the summit’s objectives, asking tion, 15 United Way or United Fund the committee members who the five break-out groups to organizations and generous attorneys, worked tirelessly to make the law firms, foundations, businesses and discuss and formulate summit happen and prepare individuals throughout the state con- concrete action plans on their supporting materials, to the tributing to the Campaign for Justice. areas of focus. Following hour-

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 183 long break-out sessions, the Group 3: Partnering activities tion). Action: review and plenary reconvened to hear by courts, the bar, law schools revise draft proposed changes and process reports from the and civil service providers. to relevant rules and com- small groups. A second round Actions: share databases; ments (Rules of Professional of break-out sessions refined improve outreach to generate Conduct and Rules of Civil those action plans, which are excitement and information Procedure) and user-friendly now being finalized by the about pro bono work/oppor- forms on notice and consent to moderators and their student tunities/recognition among limited scope representation; assistants. Watch for news students, practicing and non- develop in conjunction with e- of electronic posting of these practicing lawyers; reduce filing proposals, emphasizing group summaries and the sup- cost for out-of-state students benefits of cost-savings to porting conference materials. to become licensed legal courts, service-providers and The five break-out groups and interns and encourage pri- consumers; judicial education. their tentative action items are vate attorneys to make pro The summit energized many summarized below. bono work available for interns; improve communica- in attendance, who, we hope, Group 1: Educating the public tion among stakeholders. will carry forward and work about the law and how to access on implementing the goals, courts. Actions: demystify the Group 4: Ethical and practical short term and long term legal profession and legal sys- consideration of pro se forms and action items. To make the tem; create and make readily clinics that help with forms. dreams a reality, more foot available public information Goals: produce or update soldiers are needed to do the about the legal system. forms for use by unrepresent- hard work of implementation. ed persons; expedite resolu- If any of the break-out topics Group 2: Permissible judicial tion of uncontroversial issues; and action items trigger your encouragement of pro bono work. streamline for economy of interest, please contact the ATJ Actions: encourage adoption judicial involvement. Short- Committee, indicating your of proposed Code of Judicial term actions: identify substan- specific area of interest. Stan Conduct and Rule 3.7(b) and tive legal issues appropriate Evans and Jim Stuart are the amendment to Rule of Profes- for use of forms; identify and 2011 chairpersons. You can sional Conduct 6.1; identify involve cooperation of rele- contact them at stanevans@ permissible innovations by vant stakeholders in produc- ou.edu and [email protected] trial and appellate courts; tion and guidance for use of develop mainstream judicial forms. Long-term actions: Judith Maute served as vice- and lawyers’ continuing edu- monitor and update for quali- chair of the Access to Justice cation on access to justice and ty forms, measure utility. Committee in 2010. She is a pro- pro bono activities; pursue fessor at the University of Okla- malpractice insurance cover- Group 5: Ethical and practical homa College of Law. age without charge for all law- issues on unbundled legal servic- yers doing pro bono work. es (discrete task representa-

184 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 YOUNG LAWYERS DIVISION

YLD to Continue Dedication to Public Service By Roy D. Tucker, YLD Chairperson

Two of the more important resource handbooks to be dis- goals of any incoming chair- tributed to veterans and person of the YLD should be active members of the armed to be an active and able services. These handbooks resource for the president in will be first circulated at the any of her chosen endeavors, Feb. 25 military assistance and to not embarrass yourself training CLE, and will be by failing to match the efforts available for further distribu- of your predecessors in the tion at county law libraries, as YLD legacy. It is from this well as, the bar center. second goal that I write this article.

2011 promises to be an Roy D. Tucker exciting year, both for our If you want to 2011 YLD Chair usual fun and frivolity, and for the intense and reward- become involved in smallest comfort to our ser- ing work I have planned for vicemen, our purpose will the year. I am truly fortunate the YLD or have any have been met. to have the opportunity questions or ideas, On three “work days” fol- to lead so many incredible lowing our March, April and lawyers — lawyers who please do not hesitate September YLD monthly serve not only as officers meetings, members will vol- and directors of the YLD, to contact me... unteer their time and skills but also as committee chairs for the Serving Our Seniors and liaisons to OBA commit- (S.O.S.) project. The S.O.S. is tees. They have most cer- a national public service proj- tainly risen to the challenges In the face of the Oklahoma ect created by the ABA YLD of implementing (and carry- National Guard deployment which, through affiliates such ing out) our major public this spring, the YLD will also as the OBA YLD, provides service projects this year. prepare care packages to send low-income senior citizens to our servicemen. These At the onset, we were hon- with legal advice regarding “Desert Survival Kits” will be ored to answer President basic estate plans, such as similar to the “Bar Exam Sur- Reheard’s call in assisting the powers of attorney for health- vival Kits” that the YLD has Oklahoma Lawyers for Amer- care and property, living wills distributed to bar takers over ica’s Heroes initiative. We are and simple wills. the years, and will contain working diligently to prepare some of the necessary conve- In May, the YLD will host legal handbooks to assist vol- niences of home, such as its second statewide commu- unteer lawyers of the initia- socks, hand wipes, fingernail nity service project. Each tive in helping them to pro- clippers and the like. If our director in his or her respec- vide the highest quality legal efforts can provide even the tive district will be responsi- advice, and also direct

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 185 ble for sending out the call to Throughout the year, the Of course, our suites still other local young lawyers to YLD will also be entering the promise to be unforgettable. gather together at homeless classroom through our Chil- If you want to become shelters across the state to dren and the Law Committee involved in the YLD or have help with a “done in a day” by providing information to any questions or ideas, please project. These projects can teens on the legal responsibil- do not hesitate to contact me range from cleaning and ities that come with adult- at RTucker@muskogeeonline. painting to mowing and land- hood. Financial responsibility, org or (918) 684-6276. I am scaping. This type of state- landlord-tenant rights and looking forward to working wide project was first imple- obligations of signing a con- with many of you this year mented by Immediate Past- tract are some of the topics and am excited about what Chairperson Molly Aspan last that will be addressed. lies ahead. year and drew accolades from A new edition of the Seniors local libraries who were the Handbook will also be out this first beneficiaries. year.

Family & Divorce Mediation Training Tulsa • January 26 - 29 OKC • February 2 - 5

Approved for 40 hours of MCLE credit This course is lively and highly participatory and will include lecture, group discussion, and simulated mediation exercises Cost: $625 includes all materials The Course for Professional To get your Mediators in Oklahoma This course fulfills the training requirements set forth free listing on in the District Court Mediation Act of 1998 the OBA’s lawyer Contact: listing service! The Mediation Institute Just go to www.okbar.org and log into (405) 607-8914 your myokbar account. James L. Stovall, Jr. 13308 N. McArthur Then click on the Oklahoma City, OK 73142 “Find a Lawyer” Link.

186 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Calendar January 17 OBA Closed – Martin Luther King Jr. Day Observed 27 OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City 18 OBA Bar Center Facilities Committee Meeting; with teleconference; Contact: H. Terrell Monks 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa (405) 733-8686 County Bar Center, Tulsa; Contact: Judy Hamilton Morse (405) 235-7759 28 Association of Black Lawyers Meeting; 12 p.m.; OBA Civil Procedure and Evidence Code Oklahoma Bar Center, Oklahoma City; Contact: Committee Meeting; 3:30 p.m.; Oklahoma Bar Donna Watson (405) 721-7776 Center, Oklahoma City and OSU Tulsa; Contact: OBA Lawyers Helping Lawyers Assistance James Milton (918) 591-5229 Program Training; 12 p.m.; Tulsa County Bar Center, Tulsa; Contact: Tom Riesen (405) 843-8444 19 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 OBA Women in Law Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Deborah Bruce (405) 528-8625 20 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Barbara Swinton (405) 713-7109 OBA Bar Association Technology Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Gary Clark (405) 744-1601 21 Oklahoma Bar Foundation New Trustee Orientation; 10:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy February (405) 416-7070 Oklahoma Bar Foundation Trustee Meeting; 1 Death Oral Argument; James Allen Coddington; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: 10 a.m.; Court of Criminal Appeals Courtroom Nancy Norsworthy (405) 416-7070 OBA Law-related Education Committee Meeting; OBA Unauthorized Practice of Law Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: 1:30 p.m.; Oklahoma Bar Center, Oklahoma City with Reta Strubhar (405) 354-8890 teleconference; Contact: Deborah Reheard (918) 689-9281 3 OBA Mock Trial Committee Meeting; 5:45 p.m.; Oklahoma Bar Center, Oklahoma City with 22 OBA Law-related Education We the People State teleconference; Contact: Contact: Judy Spencer Finals; 8:30 a.m.; Oklahoma Bar Center, Oklahoma (405) 755-1066 City; Contact: Jane McConnell (405) 416-7024 4 Oklahoma Bar Foundation Grants and Awards 24 OBA Alternative Dispute Resolution Section Committee Meeting; 8:30 a.m.; Oklahoma Bar Center, Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City Oklahoma City with teleconference; Contact: and Tulsa County Bar Center, Tulsa; Contact: D. Michael Nancy Norsworthy (405) 416-7070 O’Neil Jr. (405) 239-2121 OBA Board of Editors Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, OBA Professionalism Committee Meeting; 26 Tulsa; Contact: Carol Manning (405) 416-7016 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Patricia Podolec (405) 760-3358

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 187 9 Ruth Bader Ginsburg American Inn of Court; 19 OBA President’s Summit; Post Oak Lodge, Tulsa; 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Contact: John Morris Williams (405) 416-7000 Donald Lynn Babb (405) 235-1611 OBA Young Lawyers Division Committee Meeting; 10 a.m.; Tulsa County Bar Center, Tulsa; OBA Family Law Section Meeting; 3:30 p.m.; 11 Contact: Roy Tucker (918) 684-6276 Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly Hays (918) 592-2800 21 OBA Closed – President’s Day Observed 15 OBA Civil Procedure and Evidence Code 22–25 OBA Bar Examinations; Oklahoma Bar Center, Committee Meeting; 3:30 p.m.; Oklahoma Bar Oklahoma City; Contact: Oklahoma Board of Bar Center, Oklahoma City and OSU Tulsa; Contact: Examiners (405) 416-7075 James Milton (918) 591-5229 25 OBA Lawyers Helping Lawyers Assistance 16 OBA Law-related Education Close-Up; 8:30 a.m.; Program Training; 12 p.m.; Tulsa County Bar Oklahoma Bar Center, Oklahoma City; Contact: Center, Tulsa; Contact: Tom Riesen (405) 843-8444 Jane McConnell (405) 416-7024 OBA Bench & Bar Committee Meeting; 28 OBA Alternative Dispute Resolution Section 12 p.m.; Oklahoma Bar Center, Oklahoma City and Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma Tulsa County Bar Center, Tulsa; Contact: City and Tulsa County Bar Center, Tulsa; Contact: Barbara Swinton (405) 713-7109 D. Michael O’Neil Jr. (405) 239-2121 OBA Women in Law Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and March Tulsa County Bar Center, Tulsa; Contact: Deborah Bruce (405) 528-8625 4 OBA Lawyers Helping Lawyers Assistance OBA Professionalism Committee Meeting; Program Meeting; 12 p.m.; Oklahoma Bar Center, 4 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Oklahoma City; Contact: Donita Douglas Tulsa; Contact: Patricia Podolec (405) 760-3358 (405) 416-7028 17 OBA Law-related Education Close-Up; 8:30 a.m.; 7 Supreme Court Teacher and School of the Year Oklahoma Bar Center, Oklahoma City; Contact: Jane Award Ceremony; 2 p.m.; Supreme Court McConnell (405) 416-7024 Courtroom, State Capitol; Contact: Jane McConnell OBA Law-related Education Close-Up Teachers (405) 416-7024 Meeting; 1:30 p.m.; Oklahoma Bar Center, Oklahoma 8 OBA Day at the Capitol; 8:30 a.m.; Oklahoma Bar City; Contact: Jane McConnell (405) 416-7024 Center, Oklahoma City and State Capitol; Contact: OBA Bar Association Technology Committee John Morris Williams (405) 416-7000 Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Gary Clark 11 OBA Family Law Section Meeting; 3:30 p.m.; (405) 744-1601 Oklahoma Bar Center, Oklahoma City and OSU Tulsa; OBA Mock Trial Committee Meeting; Contact: Kimberly Hays (918) 592-2800 5:45 p.m.; Oklahoma Bar Center, Oklahoma City 15 OBA Civil Procedure and Evidence Code with teleconference; Contact: Contact: Judy Spencer Committee Meeting; 3:30 p.m.; Oklahoma Bar (405) 755-1066 Center, Oklahoma City and OSU Tulsa; Contact: OBA President’s Summit; Post Oak Lodge, Tulsa; James Milton (918) 591-5229 Contact: John Morris Williams (405) 416-7000 16 Oklahoma Council of Administrative Hearing 18 OBA Board of Governors Meeting and Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma President’s Summit; 9 a.m.; Post Oak Lodge, Tulsa; City and Tulsa County Bar Center, Tulsa; Contact: Contact: John Morris Williams (405) 416-7000 Carolyn Guthrie (405) 271-1269 Ext. 56212 Association of Black Lawyers Meeting; 12 p.m.; OBA Women in Law Committee Meeting; Oklahoma Bar Center, Oklahoma City; Contact: Donna 3:30 p.m.; Oklahoma Bar Center, Oklahoma City Watson (405) 721-7776 and Tulsa County Bar Center, Tulsa; Contact: Deborah Bruce (405) 528-8625 OETA Festival Volunteer Night; 5:45 p.m.; OETA Studio, Oklahoma City; Contact: Jeff Kelton (405) 416-7018

188 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 FOR YOUR INFORMATION

Gurich Appointed to Supreme Court Judge Noma Gurich was recently appointed to serve as justice for the Oklahoma Supreme Court. Judge Gurich, who currently serves as a district judge in Oklahoma County, will replace Justice Marian Opala, who passed away late last year. She is only the third woman in state history to be appointed to the Supreme Court. She was appointed by former Gov. Brad Henry in one of his last official acts before leaving office this month, and she was his record-setting sixth appointment to the high court. “This was an extremely difficult decision because all of the candidates are well respected and highly qualified,” Henry said. “I could not go wrong selecting any one of the nominees, but I could only choose one, and in the final analysis, I felt Noma Gurich had the best qualifications and experience to serve on the state’s highest court. Judge Noma Gurich “During her distinguished legal career, Judge Gurich has compiled an exemplary record of service on the bench and has consistently demonstrated the judicial temperament and intellect necessary to be an outstanding Supreme Court justice. I know she will perform her new duties with great professionalism and integrity, and I greatly appreciate her willingness to serve.” Judge Gurich has been a district judge in Oklahoma County since 1998 and acted as presiding judge from 2003-2004. She has also overseen the multi-county grand jury. Additionally, she served on the Oklahoma Workers Compensation Court for 10 years and worked in private practice. Judge Gurich holds a bachelor’s degree from Indiana State University and a law degree from the University of Oklahoma College of Law. She resides in Oklahoma City with her husband.

Justice Combs Sworn In Oklahoma Supreme Court Chief Justice Steven Taylor (left) administers the oath of office to Justice Douglas Combs of Shawnee on Jan. 7. Justice Combs succeeds Justice Rudolph Hargrave in representing Supreme Court Judicial District Eight. (Photo credit: Legislative Service Bureau Photo Dept.)

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 189 OBA Member Resignations The following OBA members have resigned as members of the association and notice is hereby given of such resignations: Jerrold Abramowitz Albert M. Hassler III Bobbie Thomas Shell OBA No. 13963 OBA No. 20011 OBA No. 8157 1 Indiana Square, Suite 1400 1445 N. Loop West, Suite 700 1254 Augusta Court Indianapolis, IN 46204 Houston, TX 77008 Shawnee, OK 74801 Amy Clarise Ashworth Linda Cole McGowan Donald C. Templin OBA No. 22390 OBA No. 5996 OBA No. 8899 6 Prospect Ave. 2404 S. Utica Ave. 2323 Victory Ave., Suite 700 Randolph, VT 05060 Tulsa, OK 74114 Dallas, TX 75219 Kevin C. Danielson Cindy Torrance Offutt Stanley Alan Thiebaud OBA No. 12258 OBA No. 11953 OBA No. 22388 U.S. Attorney’s Office 8714 Timberland Trail 1445 Ross Ave., Suite 4800 1000 S.W. Third Avenue Boerne, TX 78015 Dallas, TX 75202-2701 Portland, OR 97204-2902 Patrick Michael Phillips William W. Wheeler Karen Sue Evans OBA No. 17959 OBA No. 9526 OBA No. 13875 Greenfield Bost & Kliros PC P. O. Box 687 P.O. Box 2274 990 Hammond Dr N.E., Guthrie, OK 73044 Oklahoma City, Suite 650 OK 73101-2274 Atlanta, GA 30328

New OBA Board Members Take Oath Nine new members of the OBA Board of Governors were officially sworn in to their positions Jan. 14. The officers taking the oath in the Supreme Court Courtroom were President Deborah Reheard, Eufaula; President-Elect Cathy Christensen, Oklahoma City; and Vice President Reta Strubhar, Piedmont. Sworn in to the OBA Board of Governors to represent their judicial districts for three-year terms were Gerald Dennis, Antlers; Renée DeMoss, Tulsa; Christopher Meyers, Lawton; and Scott Pappas, Stillwater. Also sworn in for one-year terms on the board were Immediate Past President Allen Small- wood, Tulsa; and Young Lawyers Division Chairperson Roy Tucker, Muskogee.

OBA Member MCLE Reporting Deadline Reminder Reinstatements If you need to report an exemption for 2010 or you need to The following members report additional credit, the deadline for filing the 2010 Final of the OBA suspended Annual Report of Compliance is Tuesday, Feb. 15, 2011. There is for noncompliance with a $100 fee when reporting credit earned in the year 2011 to com- the Rules for Mandatory plete your 2010 requirement. Please review your MCLE credit Continuing Legal Edu- online at http://my.okbar.org, keeping in mind that sponsors cation have complied have 30 days to submit attendance reports. If it has been longer with the requirements than 30 days since you attended an Oklahoma MCLE-approved for reinstatement, and seminar that is not reflected on your MCLE record or you have notice is hereby given other questions, please contact the MCLE Department at of such reinstatement: (405) 416-7009, (800) 522-8065 or at [email protected]. David P. Rowland OBA No. 7795 Holiday Hours P. O. Box 1436 The Oklahoma Bar Center will be closed Monday, Jan. 17 in Bartlesville, OK 74005 honor of Martin Luther King Jr. Day. The bar center will also close Monday, Feb. 21 in observance of Presidents Day.

190 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 BENCH & BAR BRIEFS

ichael Emmett Smith of mie County. He has served as MFairfax, Va., was recent- city attorney for Shawnee ly presented with the Secre- since 1991, and he served as tary’s Appreciation Award by an assistant district attorney U.S. Dept. of Energy Secre- in Pottawatomie County from tary of Energy Steven Chu. 1979 to 1991. He has also udge John Maley is being Mr. Smith was recognized for served as county attorney for Jhonored by the Okmulgee his contributions as director Pottawatomie and Lincoln County Bar Association for of the Global Initiatives, counties since 1996. He is a 44 years of service as district Infrastructure Security and graduate of the OU College judge and four years as Energy Restoration Division, of Law. county judge for Okmulgee having served in that capacity County. A reception in his since February 2008. The sec- cAfee & Taft has recent- honor will be held Friday, retary honored Mr. Smith for Mly named attorneys Jan. 21 from 5-7 p.m. at the programs that support U.S. Rachel Blue, Vickie J. Okmulgee Golf Club, 1400 national security missions Buchanan, Spencer W. S. Mission, Okmulgee. and foreign policy objectives. Haines, Gerald L. Hilsher, Richard P. Hix, Rodney K. tate Rep. Fred Jordan was he American College of Hunsinger II and Rusty N. Snamed chairman of the TBond Counsel recently LaForge as shareholders to House Judiciary Committee announced that Oklahoma the firm. for the 2011 and 2012 legisla- City lawyer Earl A. Skarky tive sessions. In addition to has been elected as a fellow of Ms. Blue is an intellectual his legislative duties, Mr. the college. The college recog- property attorney whose Jordan maintains an active nizes public finance lawyers practice is primarily focused law practice with Fellers for their “skill, experience on trademark clearance and Snider law firm in the firm’s and high standards of profes- prosecution, opposition and Tulsa office. sional and ethical conduct in cancellation proceedings and enforcement, as well as the ulsa attorney Stanley D. the practice of public finance law and who have contribut- licensing of all types of intel- TMonroe recently became lectual property. A portion of a fellow of the American Col- ed substantially to the objectives of the college.” her practice is also dedicated lege of Trial Lawyers. The to franchise law, unfair com- organization says fellowship klahoma City attorney petition matters and enter- in the college is extended to OBill Smith was recently tainment law. Prior to joining trial lawyers who have “mas- licensed to practice law in McAfee & Taft, Ms. Blue was tered the art of advocacy and the state of Texas. He contin- a partner with a Tulsa-based whose professional careers ues to focus his practice on law firm. have been marked by the criminal defense at both the highest standards of ethical trial and appellate level. His Ms. Buchanan is a trial conduct, professionalism, office remains located in lawyer whose practice civility and collegiality.” Mr. Oklahoma City. encompasses a wide range Monroe has been in practice of business-related litigation for 32 years. He is a graduate in state and federal courts, of the TU College of Law. as well as in commercial arbitration. Her experience im Banowsky of Redmond, includes representing clients JWash., has been named in class action and multiple director of Worldwide Patent party lawsuits and disputes Procurement for Microsoft involving insurance, banking, Corp. Mr. Banowsky will bankruptcy, family law, mass oversee in-house personnel ohn Canavan of Shawnee torts, products liability, real and processes while working Jhas been appointed to serve estate and employment mat- with more than 30 U.S. and as district judge for the 23rd ters. Prior to joining McAfee foreign law firms every year. Judicial District in Pottawato- & Taft, Ms. Buchanan was a

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 191 director with another large igation practice is focused on ory King has joined the civil practice law firm in general civil defense litigation Claw firm of Foshee & Oklahoma. and business and commercial Yaffe in Oklahoma City. Ms. litigation. His experience King formerly served as Mr. Haines is a tax and includes the representation of human resources director and family wealth lawyer whose clients in class action lawsuits, labor attorney for the Oklaho- practice includes tax planning disputes involving mass torts, ma Department of Public for corporations, partner- product liability, aviation, Safety and Oklahoma High- ships, and individuals; wealth banking and finance, construc- way Patrol. Her practice transfer tax planning; local, tion, oil and gas, insurance state and federal taxation; involves employment law, defense litigation, automobile Section 1031 tax-deferred workers’ compensation, dealership law and regulation, transactions; and tax struc- administrative law, and gen- and other general litigation turing of complex business eral civil litigation, and she matters. He has developed transactions. He has been a is also a certified mediator. CPA since 1999 and holds a specific expertise in the areas She is a graduate of the OU master’s degree in taxation of aviation defense, automo- College of Law. bile dealership defense, and from New York University. makal, Munn & Mathis the defense of wrongful death PLLC of Tulsa announces Mr. Hilsher is a litigator and serious injury claims. S whose trial and appellate prac- Elizabeth W. Burden has tice is focused on complex Mr. LaForge is a corporate joined the firm as its newest commercial and intellectual lawyer whose practice is pri- associate. Her practice focuses property litigation, business marily concentrated on regula- primarily on civil litigation torts, environmental litigation tory and transactional matters with an emphasis in domestic and select white-collar crimi- affecting banks, bank holding and probate matters, construc- nal defense, including environ- companies and other financial tion law, estate planning, and mental crimes, Medicare fraud, institutions. His career experi- corporate transaction and liti- bank fraud and violations of ence includes serving as direc- gation matters. She may be the False Claims Act. His tor of investor relations for a reached at the firm’s offices career experience includes large publicly-traded financial at 320 S. Boston, Suite 718, serving as a criminal prosecu- services holding company and Tulsa, 74103; (918) 582-3400; tor, deputy assistant secretary as director of finance under www.smakalmunnmathis.com. for law enforcement at the Oklahoma Gov. Frank Keating. arnum & Clinton PLLC U.S. Treasury Department, he law firm of Doerner announces Laurie J. Mill- federal adjunct settlement B Saunders Daniel & Ander- er and Barbara Coke Reid judge and as a lawyer in pri- T son LLP has moved. Its new have joined the firm as associ- vate practice with another ate attorneys. Ms. Miller will Oklahoma law firm. address is: Two W. Second Street, Suite 700, Tulsa, 74103. focus her practice in the areas Mr. Hix is a trial attorney of business and individual who has successfully repre- U College of Law Profes- representation before all state sented clients in major litiga- Osor Emeritus Frederick and federal courts, and before tion in state and federal courts, H. Miller is relocating to the Oklahoma Workers’ Com- as well as arbitration, through- Edina, Minn. Professor Miller pensation Court. Prior to join- out the United States. In addi- began teaching at the law ing the firm, Ms. Miller was tion to handling all phases of school in 1966 and has been a the owner and founder of large-scale civil litigation as contributor to the Oklahoma Miller Law Firm in Oklahoma well as appeals in both the Bar Journal. City. Ms. Reid will focus her state and federal court sys- ormer State Treasurer practice in the areas of work- tems, he has extensive experi- FScott Meacham will be ers’ compensation defense and ence serving as a mediator. joining Crowe & Dunlevy in general civil litigation. Ms. Prior to joining McAfee & Taft, its Oklahoma City office. Mr. Miller and Ms. Reid may be contacted at the firm’s offices Richard was a partner with Meacham will head the firm’s another Oklahoma-based civil at 1011 24th Ave. NW, Nor- banking and financial institu- practice law firm. man, 73069; (405) 579-7300. tions practice group. He is a Mr. Hunsinger is a trial law- graduate of the OU College asley & Farabough of Ard- yer whose state and federal lit- of Law. Pmore announces Kimberly

192 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Farabough Mouledoux has graduate of the OCU School Robinson, Suite 820, Oklaho- joined the firm as its newest of Law. ma City, 73102; (405) 236-8282; associate. Ms. Mouledoux www.chubbucksmithlaw.com. ierce Couch Hendrickson will focus primarily in the Baysinger & Green LLP rowe & Dunlevy areas of insurance defense, P announces Jason A. Robert- announces Sarah Brune workers’ compensation and C son has joined the Tulsa office Edwards as its newest associ- general civil litigation. She is as of counsel and Darin S. ate in the firm’s Oklahoma a graduate of Loyola Univer- Rohrer has joined the Okla- City office. Ms. Edwards sity School of Law. homa City office as an associ- focuses her practice in cor- he Tulsa law firm of Gra- ate attorney. Mr. Robertson’s porate and securities law. Tham, Allen & Brown practice will focus primarily Prior to joining the firm, Ms. announces the addition of in the areas of insurance Edwards served as deputy Greg Williams to the firm. defense law, medical malprac- general counsel in the office Mr. Williams will focus pri- tice and premises liability. He of Gov. Brad Henry. She also marily in the areas of medical was formerly a partner in the worked as an attorney for the malpractice, catastrophic per- Glendening McKenna Oklahoma House of Repre- sonal injury, products liability Prescott & Robertson law firm sentatives, assistant general and sexual abuse cases. He in Tulsa. Mr. Rohrer’s practice counsel for Harry Mortgage graduated cum laude from will include insurance and Company and as an attorney the University of Missouri bad faith defense and medical for an Oklahoma City School of Journalism and malpractice. law firm. went on to receive his J.D. he Tulsa law firm of enneth L. Davidson has from the TU College of Law. TAtkinson, Haskins, Nellis, Kretired from practice as ulsa attorney Deirdre Brittingham, Gladd & Car- vice president and general TDexter has joined the law wile announces Michael A. counsel of Northern Illinois firm of Barrow & Grimm PC Simpson as its newest part- University after more than 40 as a preferred shareholder. ner. His practice areas include years as a licensed attorney. Ms. Dexter’s practice will commercial and contract liti- Mr. Davidson served 14 years focus primarily in the areas gation, construction law, as legal counsel at Oklahoma of employment law and com- insurance defense, insurance State University before relo- mercial litigation. Prior to coverage, negligence and cating to Illinois where he joining Barrow & Grimm PC, Native American law, with practiced since 1990. He pre- Ms. Dexter recently served as particular experience in com- viously served six years city attorney for the city of plex motions and appellate active duty in the U.S. Air Tulsa. She also served as an advocacy. He is also a certi- Force JAG Department. arbitrator for the American fied mediator for civil/com- ock, Schwabe, Waldo, Arbitration Association, serv- mercial cases in the Oklahoma Edler, Reeves & Bryant ing both the employment law state courts. M PLLC announces Layla J. panel and the commercial ary M. Chubbuck, Curtis Dougherty and Robyn R. panel and as an adjunct set- L. Smith, Michael D. Baker as associates. Ms. tlement judge (mediator) for G Duncan and Bart Jay Robey Dougherty’s practice is con- the U.S. Federal District Court announce the formation and centrated in appellate practice, for the Northern District of opening of their new practice, business litigation, commercial Oklahoma. Chubbuck Smith & Duncan law, debtor-creditor relations, he Duncan law firm of PC. Stacey S. Chubbuck joins and insolvency and bankrupt- TLeach, Sullivan, Sullivan, the firm as an associate. The cy law. She graduated in 2000 & Watkins LLP announces firm’s practice will focus on from the OU College of Law. Joshua Allen Creekmore as products liability, bad faith Ms. Baker’s area of practice its newest associate. Prior to defense, employment law and includes business litigation, joining the law firm, Mr. insurance defense while also debtor-creditor relations, Creekmore worked as an offering comprehensive coun- banking, bankruptcy, and assistant district attorney for seling, litigation and appellate commercial and consumer Grady, Stephens, Caddo and services. The firm’s office is law. Ms. Baker is a 2005 Jefferson Counties. He is a located at the Robinson graduate of the OU College Renaissance building, 119 N. of Law.

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 193 department, spoke recently at How to place an announce- the annual Commercial Law ment: If you are an OBA mem- Update, a CLE seminar held ber and you’ve moved, become annually in Oklahoma City. a partner, hired an associate, Mr. Johnson and Mr. McCaf- taken on a partner, received a frey briefed attendees on the promotion or an award or giv- latest developments in con- en a talk or speech with statewide or national stature, we’d ames Francis Gillet, U.S. sumer law and auto finance. The annual Commercial Law like to hear from you. Informa- Jadministrative law judge in tion selected for publication is Springfield, Mo., recently Update is jointly sponsored by the Oklahoma Bar Review printed at no cost, subject to addressed the Springfield editing and printed as space Metropolitan Bar Association. CLE and the Conference on Consumer Finance Law. permits. Submit news items His presentation titled, (e-mail strongly preferred) “Master Your Case — An klahoma City attorney in writing to: Advanced Discussion: OSharon Voorhees spoke Beyond Checklists at the at a National Business semi- Lori Rasmussen Horizon of the Jury Instruc- nar in December on the topic Communications Dept. tion,” offered a tactical and of “Administering the Estate Oklahoma Bar Association thematic approach to admin- on the Cusp of Exemption,” P.O. Box 53036 istrative hearing and an in- and presented her paper on Oklahoma City, OK 73152 depth exploration of selected “Marshalling, Valuing and (405) 416-7017 federal regulations and Disposing of Assets and Fax: (405) 416-7089 or agency rulings. Debts.” Ms. Voorhees also par- E-mail: [email protected] klahoma City attorneys ticipated in the panel discussion on ethics, including topics Articles for the Feb. 12 issue OEric L. Johnson and must be received by Jan. 31. James A. McCaffrey, of Phil- of setting and collecting attor- lips Murrah’s commercial and ney’s fees in probate cases. consumer financial services Compiled by Jenefar de Leon

IN MEMORIAM

ames Burton of East Lyme, U.S. Navy and served in admitted to the bar the same JConn. died Dec. 2, 2010. He World War II from 1942 -1945 year. was born March 26, 1932, and and in the Korean conflict graduated from Michigan from 1951-1952. He graduat- enry F. Featherly of State University Law School ed from Washburn University HOklahoma City died on in 1959. He was admitted to in 1950 and Washburn Uni- Dec. 26, 2010. He was born on the OBA the same year. versity Law School in 1951. Aug. 10, 1930, in Stillwater. He practiced law in Topeka, He graduated from Stillwater ongtime Mountain View Kan., after graduating. In High School and Oklahoma Mike A. Caruso Lresident 1962 he joined the U.S. Army State University, and then Jr. died Aug. 18, 2010. He was Corps of Engineers, moving went on to receive his J.D. born Sept. 20, 1916, in Fort to Sand Springs in 1969 and from the OU College of Law. Cobb and was admitted to Kellyville in 1978. He retired Henry served in the U.S. Air the bar in 1938. Memorial in 1981. Memorial donations Force, spending 18 months contributions may be made may be made to the Kellyville in Europe from 1952 to 1954, to the Addie Davis Library Methodist Church. where he achieved the rank or Mountain View First Meth- of captain. He practiced law odist Church. ecil Blair Easley of Okla- for 50 years in Oklahoma homa City died June 1, City, retiring from the law illiam Wilber “Bill” C 2010. He was born July 13, firm of Lamun, Mock, Dimmitt died Dec. 24, W 1943. He attended law school Featherly, Keihling and Cun- 2010, in Tulsa. He was born at Oklahoma City University, nyngham. He was appointed Jan. 20, 1917, in Chicago, Ill. graduating in 1976, and was as special judge for the Okla- Mr. Dimmitt enlisted in the homa Workers’ Compensa-

194 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 tion Court. He was one of the Annapolis, Md., graduating State University and his J.D. original board members of with a B.S. in 1961. He took from OCU School of Law. He Heritage Hall School, having his commission in the U.S. was also a CPA. He began his served for six years; a long- Army as an artillery officer career working for Boeing in time member of the Express- serving tours of duty in Ger- Wichita, Kan., was later a way Lions Club, having been many and Vietnam. He was partner at Williams, Hurst & a two-time president of the an avid scholar throughout Groth CPA in Oklahoma club; and a member of Crown his career, earning an M.S., a City and finished his career Heights United Methodist J.D. from OCU Law School, employed for many years Church. He was also a com- and he completed the Army with Kerr-McGee. Memorial missioner for the Boy Scouts Command and General Staff contributions may be made and served as a committee College. His last posting was to the Humane Society or a member for the State Republi- at Ft. Leavenworth, Kan., in charity of your choice. can Party. Memorial donations 1985, retiring in 1998. ames William Roberts may be made to Community died asper David “J.D.” Nance Learning Council of Oklaho- JJune 3, 2010. He was born ma City, P.O. Box 20414, Okla- Jof Broken Arrow died Dec. in Holdenville on April 29, 7, 2010. He was born July 7, homa City, 73156 or Physi- 1920, and graduated from 1919, in Henryetta. Mr. Nance cian’s Choice Hospice LLC. Holdenville High School in served in the U.S. Army. He 1938. His studies at the Uni- urray Marcus Holcomb was admitted to the bar in versity of Oklahoma were Mof Buffalo died Dec. 13, 1947. As an attorney, he interrupted by four years of 2010. He was born on Nov. worked in the petroleum military service, two years of 23, 1932, in Buffalo. He industry. which were spent in India attended Oklahoma A&M, during WWII. He graduated ames Albert Peabody and went on to receive his died from OU in 1949 with a B.A. J.D. in 1956 from the OU JNov. 30, 2010. He was born and an LL.B degree; the latter College of Law. He practiced on May 14, 1929, and was a was later superseded by a law in Harper County for 54 lifelong Oklahoma City resi- J.D. degree. After working years. He was a member of dent, graduating from Capitol three years for the Oklahoma the Shriners, a 32nd degree Hill High School in 1947. He Supreme Court, he became Mason and became a member earned his law degree from the associated with the Oklahoma of the Oklahoma Bar Associa- University of Oklahoma, City law firm of Kerr, Davis, tion in 1956. He also farmed where he was editor of the law Roberts, Irving and Burbage. and ranched for most of his review and a Rhodes scholar. In 1966 he joined the legal He served as a military officer life. He was a leader in the department of Kerr-McGee during the Korean conflict community, and his life was . Corporation, retiring in 1985 marked by work ethic, educa- He worked more than 50 years as division counsel of the oil, tion and family. Memorial at Crowe & Dunlevy, retiring gas and minerals division. in 1991, yet continuing on as donations may be sent to He was a member of the Phi of counsel and firm historian. Zion Lutheran Church in Buf- Delta Phi legal fraternity and Memorial contributions may falo or the Oklahoma Medical a Mason. He was a member be made to Full Life Hospice, Research Foundation in Okla- of Olivet Baptist Church in 4001 N. Classen, Oklahoma homa City. Oklahoma City for 60 years, City, 73118. where he served as a deacon, owell L. Martin died Dec. aul A. Puttroff a Sunday school teacher and 9, 2009, in Waynesville, N. of Oklaho- L Pma City died Dec. 17, on various committees. He C. He was born Sept. 30, 1938, joined Spring Creek Baptist in Ft. Jay, N.Y. Mr. Lowell 2010. He was born on Sept.13, He Church in 2007. He loved his- spent his entire career in mili- 1917 in Newton, Kan. served in the U.S. Army dur- tory, gardening, painting, tary service, beginning in ing World War II family and church. 1957 as a midshipman at the . He U.S. Naval Academy in received his B.S from Kansas

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 195 CLASSIFIED ADS

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196 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 POSITIONS AVAILABLE POSITIONS AVAILABLE OIL AND GAS ATTORNEY - OKLAHOMA CITY. Oil OKC LAW FIRM with unique operating platform and gas operating company, headquartered in Okla- seeking an experienced workers’ compensation/civil homa City, is seeking a self-starting individual to join litigation attorney, and a labor and employment/hu- our team-oriented environment as a staff attorney. Po- man resources consultant or attorney for either project sition will be actively involved in diverse legal matters work or employment. Bringing existing business is a related to company operations, including negotiation plus. Creative and fair compensation, great work and review of various transaction contracts, interpreta- environment, business origination rewarded. Send tion of compliance requirements, litigation case man- resume and cover letter explaining interest and expe- agement with outside counsel, regulatory issues, etc. rience to [email protected]. Targeted candidates have 4-7 years experience in han- OKLAHOMA CITY AV RATED INSURANCE DEFENSE dling oil and gas related litigation, including surface FIRM seeks associate attorney with 0-5 years experience. damage cases and remediation claims. Candidates Excellent research and writing skills required. All replies must be licensed in Oklahoma or Texas and possess ex- kept confidential. Resume and writing sample should be cellent verbal and written communications skills. Sub- sent to “Box E,” Oklahoma Bar Association, P.O. Box mit resume and credentials to [email protected]. 53036, Oklahoma City, OK 73152. THE CITY OF SHAWNEE is seeking applications for the position of City Attorney. This position shall pro- PARALEGAL: Allstate Insurance Company is vide full time, in-house legal representation to the city seeking a Paralegal for office in Oklahoma City. 4 of Shawnee, its officers and employees and to the year college degree/1 year Paralegal experience or Shawnee Municipal Authority and Shawnee Airport Paralegal certificate/2-5 years Paralegal experience Authority. The city attorney’s responsibilities shall in- required. Personal injury experience a plus. Mem- clude drafting ordinances, resolutions, contracts, main- bers of the Allstate Team enjoy a customizable taining the Municipal Code, serving as prosecuting of- benefits plan, generous paid time away, an excellent ficer of the Municipal Court, serving as legal advisor of 401K plan, a defined benefit pension plan and much the city’s boards and committees and shall appear on more! Apply online at www.allstate.jobs, reference behalf of such entities at their meetings. In addition, job number search 000CAT. the city attorney shall prosecute or defend suits of every nature involving all aspects of city business, includ- IMMEDIATE NEED FOR OF COUNSEL ATTORNEY ing the areas of zoning, labor/personnel, civil rights, in law firm in NW Oklahoma City/ Edmond area. Ex- personal injury/property damage and contracts. Inter- perience in estate planning, probate, employment and/ ested candidates should submit their cover letter and or personal Injury preferred. No phone calls please. resume to: City of Shawnee, Attention Tammy Johnson, Fax resumes to (405) 748-6293. Interim HR Director, 16 W 9th St., Shawnee, OK 74801. Position will be open until Jan. 31. EOE. CLASSIFIED INFORMATION OUR CLIENT IS WIDELY REGARDED as a pre-eminent law firm in the capital markets industry. The ideal candi- CLASSIFIED RATES: One dollar per word per inser- date will have experience in drafting, negotiating and tion. Minimum charge $35. Add $15 surcharge per is- reviewing commercial loan documentation in connec- sue for blind box advertisements to cover forward- tion with a wide range of complex loan transactions and ing of replies. Blind box word count must include “Box have experience in representing issuers, sellers, purchas- ____ , Oklahoma Bar Association, P.O. Box 53036, Okla- ers and/or underwriters in structured finance transac- homa City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for tions. Join a sophisticated Oklahoma City practice with issue dates and Display Ad sizes and rates. one of the most impeccable reputations in the country. The candidate will have a minimum of 5 years applicable DEADLINE: Tuesday noon before publication. Ads must be experience, J.D. from an accredited law school with a prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: minimum GPA of 3.5 preferred. The firm has a collegial and flexible work environment and offers competitive Jeff Kelton, Oklahoma Bar Association salary and benefits. Please contact; Heather Ammons at P.O. Box 53036, Oklahoma City, OK 73152 [email protected] or (512) 745-4778. E-mail: [email protected] Publication and contents of any advertisement is not CIVIL LITIGATOR 2-5 years experience wanted. Send to be deemed an endorsement of the views expressed resume via fax to (405) 235-6622. therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or ser- LEGAL ASSISTANT/SECRETARY FOR SMALL OKC vice involved. All placement notices must be clearly non- DOWNTOWN OFFICE. Must be experienced with civ- discriminatory. il litigation. Must also be proficient in typing and Word Perfect. Must have strong work ethic and must be self motivated. Competitive salary based on experience. Please e-mail resumes to [email protected].

Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 197 You are not alone.

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198 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011 Vol. 82 — No. 2 — 1/15/2011 The Oklahoma Bar Journal 199 THE BACK PAGE

Only One Question By Retired Judge David A. Barnett

In my years as a trial lengthy barrage of judge, I observed a examples, she proceed- great many lawyers ed to tell of his many plying their trade, faults, including acting some with great skill, very improperly and some not so skill- toward her children ful. Consequently, I It seemed as though the have memories of some child’s attorney had of the best and some of opened a floodgate the worst. with his simple and The best question I straightforward inquiry. have heard from the From my higher bench happened in a vantage point, I could hotly contested custody clearly view the battle. The plaintiff’s response of defense dad was present with counsel. From sitting his attorney and defen- high in the seat, coun- dant’s mom with hers. sel actually began to Also present was the sink lower in the chair attorney I had appoint- as the testimony ed to represent the spewed forth. Before interest of the child. the witness finished The main issue her answer, the case which had given rise was all but decided in to the post-divorce pro- the plaintiff’s favor, ceeding was the new and defense counsel husband of the defen- as the ex-wife testified recognized the child’s was almost out the dant. He had been as to stepfather’s ster- attorney to inquire. He bottom of the chair, accused of improper ling character and as began by stating that apparently trying to behavior toward the to what a great daddy he only had one ques- hide under the table. female child whose he was. The plaintiff’s tion, then directed this No one else had any custody was the subject lawyer didn’t ask many question to the witness. more questions. of the lawsuit. The questions of the wit- “Ma’am, if Mr. Stepfa- A Proverb says pride defendant’s lawyer ness and the defense ther was such a won- goes before a fall and a made a bold strategic attorney was sitting derful husband, why in haughty spirit before decision to call the ex- proud. I noticed coun- the world did you stumbling. I continue wife of the stepfather sel even seemed to sit divorce him?” to be amazed at the to testify as to his char- taller in the seat, obvi- As soon as the ques- effectiveness of only acter and his great ously proud that the tion registered with the one question! bold strategy was parenting skills. witness, her demeanor Retired Judge Barnett working. Defense counsel’s changed from all smiles lives in Frederick. strategy seemed good After both sides had to that of great conster- examined the witness, I nation. Then, with a

200 The Oklahoma Bar Journal Vol. 82 — No. 2 — 1/15/2011

Sacrifice 2x For those who serve, will you serve? In the spring of 2011, Oklahoma will deploy nearly 4,000 servicemen and women overseas to the battlefield. They will take up arms and leave behind family, friends, and co- workers. Before they go, after they’re gone, and when they get back, they often need legal assistance - from consumer and creditor issues to estate planning and family law matters. Many return with physical and mental health issues. OBA Bootcamp: Oklahoma Lawyers Representing America’s Heroes February 25, 2011 Oklahoma Bar Center, OKC 7 hours MCLE/1 ethics. Free CLE www.okbar.org/heroes