ALSO INSIDE: New Lawyers Admitted to the OBA • Legislative Report OBA & Diversity Awards •Sovereignty Symposium

Volume 90 — No. 5 — May 2019

Technology

contents May 2019 • Vol. 90 • No. 5

THEME: Technology Editor: C. Scott Jones

FEATURES PLUS 6 Text Messaging for Lawyers 34 OBA Awards Nominations By Jim Calloway By Kara I. Smith 10 Is Virtual Reality the Future 38 Diversity Awards: Nominations Due July 31 of Courtrooms? 40 Law Day Thank You By Ron Vaughn 41 Sovereignty Symposium XXXII 14 The Ethics of Using Cloud-Based Services and Products 46 New Attorneys Admitted to the OBA By Darla Jackson and Kenton Brice 48 Legislative Monitoring Update 22 When Elephants Collide: Maintaining By Angela Ailles Bahm Technological Competence vs. Complying With Discovery Rules By Allie Ah Loy and Mbilike Mwafulirwa 28 Do Attorneys Dream of Electronic Wills? By Martin Postic Jr. and David M. Postic

DEPARTMENTS 4 From the President 50 From the Executive Director PAGES 34 AND 38 - OBA & Diversity Awards 54 Law Practice Tips 58 Board of Governors Actions 60 Oklahoma Bar Foundation News 63 Young Lawyers Division 64 For Your Information 67 Bench and Bar Briefs 70 In Memoriam 73 Editorial Calendar 74 What’s Online 80 The Back Page PAGE 41 – Sovereignty Symposium XXXII From The President Living a ‘Four Square’ Life By Charles W. Chesnut

HEN I WAS GROWING UP in Miami, there was It’s easy to let the demand of the practice Wa businessman who enjoyed giving away books. of law crowd out a healthy balance of One day he invited me to his office. When I arrived, he living; and yet our lives are infinitely better gave me a book by a man named William Danforth, the when we allow ourselves time for fresh air founder of Ralston and sunlight, physi- Purina. The name cal exercise, intel- of the book I lectual stimulation, remember was It’s easy to let the demand of the social time with I Dare You. friends and atten- That company’s practice of law crowd out a healthy tion to the spiritual checkerboard logo side of our lives. we know today balance of living; and yet our lives are It’s a goal of actually relates many to be suc- to the principles infinitely better when we allow ourselves cessful in our lives. of this book that The definition of espoused his per- time for fresh air and sunlight, physical success is going to sonal philosophy, be different for each the “four square” person. For me, one life. He believed exercise, intellectual stimulation, social of my goals was to that each person have a successful, has not one but time with friends and attention to the busy law practice. four lives to live: Unfortunately, at physical, mental, spiritual side of our lives. times I was so busy social and spiri- and so “successful” tual. “The ingredients for life are a body, a brain, a heart that my life got off course. As a result, I and a soul,” Danforth would say. “All four must grow became extremely stressed and very unhappy. in balance with each other.” It required some major work within I think we can all look back at our me to get back to a “four square” life. I lives and see where certain events think my story is legion. have had a lasting impact. That book Attorney wellness is really just individual had a lasting impact on me. wellness. It is an active process of becoming We live in a time where there is aware and making choices toward a healthy much discussion about “wellness,” and fulfilling life. It is a dynamic process especially in the legal profession. It’s that embraces change and growth. a topic of conversation because we, The Oklahoma Bar Association is as attorneys, are a profession where working on programming that promotes chronic stress exists which often wellness in the practice of law. It would results in high rates of depression be nice to shift our culture toward one and substance abuse. that makes well-being in all its aspects a That certainly impacts our abil- priority among practitioners. President Chesnut practices in Miami. ity to practice law and affects our We’d love to have your input and your [email protected] 918-542-1845 competence. participation. Contact me if you’d like to be a part of this.

4 | MAY 2019 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2019 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Volume 90 — No. 5 — May 2019 Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. JOURNAL STAFF BOARD OF EDITORS Advertisers are solely responsible for the JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair content of their ads, and the OBA reserves Editor-in-Chief the right to edit or reject any advertising copy [email protected] LUKE ADAMS, Clinton for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor CLAYTON BAKER, Vinita by the Board of Editors. Information about [email protected] submissions can be found at www.okbar.org. AARON BUNDY, Tulsa MACKENZIE SCHEER Advertising Manager PATRICIA A. FLANAGAN, Yukon BAR CENTER STAFF [email protected] John Morris Williams, Executive Director; AMANDA GRANT, Spiro Gina L. Hendryx, General Counsel; Joe LACEY PLAUDIS Balkenbush, Ethics Counsel; Jim Calloway, Communications Specialist VIRGINIA D. HENSON, Norman Director of Management Assistance Program; [email protected] Craig D. Combs, Director of Administration; C. SCOTT JONES, Oklahoma City LAURA STONE Susan Damron, Director of Educational Communications Specialist SHANNON L. PRESCOTT, Okmulgee Programs; Beverly Petry Lewis, Administrator [email protected] MCLE Commission; Carol A. Manning, LESLIE TAYLOR, Ada Director of Communications; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels OFFICERS &

Les Arnold, Julie A. Bays, Gary Berger, BOARD OF GOVERNORS Debbie Brink, Melody Claridge, Cheryl CHARLES W. CHESNUT, President, Miami; Corey, Ben Douglas, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, Suzi LANE R. NEAL, Vice President, Oklahoma City; SUSAN B. SHIELDS, Hendrix, Debra Jenkins, Rhonda Langley, President-Elect, Oklahoma City; KIMBERLY HAYS, Immediate Past Jamie Lane, Durrel Lattimore, Renee President, Tulsa; MATTHEW C. BEESE, Muskogee; TIM E. DECLERCK, Montgomery, Whitney Mosby, Lacey Enid; MARK E. FIELDS, McAlester; BRIAN T. HERMANSON, Plaudis, Tracy Sanders, Mackenzie Scheer, Ponca City; JAMES R. HICKS, Tulsa; ANDREW E. HUTTER, Mark Schneidewent, Laura Stone, Margaret Norman; DAVID T. MCKENZIE, Oklahoma City; BRIAN K. MORTON, Travis, Krystal Willis, Laura Willis & Oklahoma City; JIMMY D. OLIVER, Stillwater; MILES T. PRINGLE, Roberta Yarbrough Oklahoma City; BRYON J. WILL, Yukon; D. KENYON WILLIAMS JR., Oklahoma Bar Association 405-416-7000 Tulsa; BRANDI NOWAKOWSKI, Shawnee, Chairperson, OBA Toll Free 800-522-8065 Young Lawyers Division FAX 405-416-7001 Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, Ethics Counsel 405-416-7055 except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln General Counsel 405-416-7007 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid Lawyers Helping Lawyers 800-364-7886 at Oklahoma City, Okla. and at additional mailing offices. Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Subscriptions $60 per year that includes the Oklahoma Bar Journal Board of Bar Examiners 405-416-7075 Court Issue supplement delivered electronically semimonthly. Law Oklahoma Bar Foundation 405-416-7070 students registered with the OBA and senior members may subscribe for $30; all active members included in dues. Single copies: $3

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THE OKLAHOMA BAR JOURNAL MAY 2019 | 5

Technology Text Messaging for Lawyers By Jim Calloway

EXT MESSAGING (OR TEXTING) is one of the technology advances that has impacted Thow most people interact with each other. Like many consumer technology tools, texting can be a time waster, but sometimes it is the absolute perfect tool. When you’re running late for a social meeting, a quick text of “OTW” or “B there in 5 min” relieves stress for both parties.

My personal opinion on text a really nice texting tool or two), nn That’s too complicated to messaging for lawyers has evolved we should appreciate that text discuss via text message. over the years from “Avoid it. Too messaging is a very limited com- Call my office to schedule hard to document. Who knows munications method. It works an appointment. about security?” to “Well, everyone great for letting someone know nn That’s an important strategic is doing it, so you have to manage you’re running five minutes late decision. We need to discuss it somehow” to “Emerging texting for your luncheon meeting or in person. tools make this a much better com- passing on a quick congratula- munication tool.” tions or kudos to someone. The above examples may sound Like so many technology-based Think of the most distracted like you are putting off your client, tools, today’s lawyer has to deal time you have ever received a text and while that is true to some with text messaging. So, let’s dis- message. By now most of us have extent, it provides the immedi- cuss how lawyers and law firms received a text message, quickly ate responsiveness many clients can deal with texting. glanced at it and only later figured crave today without the potential There are a lot of positives to out we misunderstood the mes- problem of discussing complicated text messaging as a business tool. sage, or it was from a different per- matters via a channel that tends to It’s easy. It’s personal. It’s imme- son with the same first name. With dangerously oversimplify complex diate. There’s an extremely strong text messages there is a risk you are communication. likelihood the recipient reads your advising your client in a bowling Certain areas of substantive communication. alley, a bar or on a first date. law, like possible mergers or The negatives are the other As convenient as texting is, it is acquisitions or other topics related side of the same features. Because very limited and is a poor tool for to securities law, likely mean your texting is so easy and immediate, it almost every complex legal discus- text messages should be friendly is often intrusive. Most lawyers are sion. One needs to learn to use the but very limited in scope. In fact, now well-versed in dealing with medium’s strengths and to avoid its you probably need to discuss this email on their smartphones, but the weaknesses. That means lawyers challenge with new clients during buzz or bing of an incoming text is will sometimes be forced to decline the engagement process. a greater interruption than deciding or defer some text message conver- With a criminal defense to check your email. Some clients sations, but our ethical guidelines engagement, I suggest you explain may use text messages to their indicate we must respond to client to the client that texting should be lawyer in an inappropriate way that inquiries. Here are some sugges- limited to scheduling and appoint- negatively impacts the lawyer’s life. tions for a polite but clear response: ments. A good way to phrase it So, before we get into some may be to say, “Never discuss more important technical aspects nn No. Don’t do that! Call me what happened that caused you to of text messaging for lawyers (and to discuss why. be arrested with anyone besides

THE OKLAHOMA BAR JOURNAL MAY 2019 | 7 Phone lock codes are not required by the Oklahoma Rules of Professional Conduct, but common sense dictates that a lawyer should set up the lock code so someone cannot pick up their phone and use it, especially if there is any client information on the phone.

your lawyer. Even discussing ARE TEXT MESSAGES SECURE? access code. So, handing your those events with me should be in The original and very common phone to someone after unlocking person or on the phone – never by format of text messages is SMS it means you are confident they text message or email. People go to (short message service). These are will only access what you intended. jail for writing out confessions on not encrypted and theoretically This may be a judgment on the electronic devices.” With a defense could be intercepted. Your mobile person’s integrity or just paying matter, I am most concerned about carrier retains SMS records includ- attention as they use your phone, the message residing on the cli- ing the metadata of who you but being a lawyer is now a good ent’s phone than an interception. texted. One of Edward Snowden’s reason to decline to let your phone People tend to handle their phones exposures of U.S. intelligence out of your possession. If you’re very casually, sometimes sharing operations was that the national going to frequently text clients, their lock codes, and some people security agency collected this data. then the message preview feature do snoop through other’s personal Is email more secure than SMS? of your phone should also be set so business on a phone if they have You can read contradictory opin- the content of the messages is not the opportunity. ions on this, but I believe that SMS displayed on the lock screen. Let’s be clear. Despite the con- text messages are more secure than Phone lock codes are not cerns noted above, almost all law- emails for a variety of reasons, required by the Oklahoma Rules of yers are texting now and almost all including that email is currently Professional Conduct, but common lawyers have more business-related a more common target for attack sense dictates that a lawyer should text messages in their future. The and many emails are often stored set up the lock code so someone tool is powerful and ubiquitous. locally on several different devices. cannot pick up their phone and use Lawyers, due to our cautious Email messages tend to contain it, especially if there is any client natures and training, might be less more information that is valuable information on the phone. likely to commit text messaging for wrongdoers as well. Just for iPhone texting is more secure errors than most of our clients. It the record, being more secure than than SMS. This is because of iMessage is incumbent with each new client unencrypted email is faint praise. encryption, which means it only engagement that the lawyer takes Lawyers seeking a truly applies to messaging between the time to discuss all possible secure option need to understand iPhones, iPads and Macs. As I challenges with all forms of digital encrypted text messaging. have noted before, encryption is communication including text Before we move on, it is import- demonstrated by the “blue bubble” messaging and email. ant to note that phone security in iMessage where the “green bub- is compromised when someone ble” means it was not encrypted, else has access to your phone and normally because it was not

8 | MAY 2019 THE OKLAHOMA BAR JOURNAL received by an “i device.” It is true ENTERPRISE TEXTING one of these services? The answer that a device being off-line or on The best solution may be is “Yes, by using a technique the edge of a cell tower may result enterprise texting, a business tool called Email-to-SMS Gateway.” in a message being stepped down that is not free but provides many Hong Dao of the Oregon State Bar to SMS and not being encrypted, useful features. I’m only going to Professional Liability Fund wrote so it is not 100 percent. Generally, cover ZipWhip. It is a leading tool, about this on their blog. The link is these will be encrypted. and the corporate offices let me bit.ly/emailtexts. test drive the service for a substan- WHATSAPP AND SIGNAL: tial time, so I could get a good idea CONCLUSION END-TO-END ENCRYPTION of how it operates. Like email, communicating by TOOLS ZipWhip enables texting fro text message, aka texting, is likely The great thing about end-to- your existing business phone going to be with us for a while. end encryption tools is that they number. It doesn’t use your busi- It is incredibly convenient and a are strong, safe and secure. ness phone line but displays that time-saving tool, which is why it is The challenge is they only work number to those who receive a so popular and widely used. if the person you wish to commu- text message from the lawyer via As is true of many things related nicate with agrees to install and ZipWhip. The reality of how peo- to the legal representation of clients use the app for that particular tool. ple use communication tools today concerning their confidential busi- WhatsApp is one such tool, means that many of us do not ness and private matters, we – as and the company’s website carries want to widely share our mobile members of the legal profession – a strong message about security, phone numbers. With ZipWhip have to look beyond the conve- “From day one, we built WhatsApp you can install an app on your nience factor to ensure we are not to help you stay in touch with phone, so you can use ZipWhip to compromising our clients’ interests friends, share vital information text from your phone as you nor- or our own personal and profes- during natural disasters, reconnect mally would – but without sharing sional interests by thoughtless use with separated families, or seek a mobile phone number. of text messaging communication a better life. Some of your most The service gives you a text by the lawyer or the clients. personal moments are shared with inbox that’s available online or WhatsApp, which is why we built in the various apps it supports. end-to-end encryption into our That addresses one of the other ABOUT THE AUTHOR app. When end-to-end encrypted, concerns with lawyers and text Jim Calloway is the director of the your messages, photos, videos, messaging – that the messages OBA Management Assistance voice messages, documents, and will not be appropriately saved in Program. He served as chair of the calls are secured from falling into the client file. Those who follow 2005 ABA TECHSHOW board. His the wrong hands.”1 the ZipWhip inbox can see all the Law Practice Tips blog and Digital As you can note, WhatsApp text conversations that have taken Edge podcast cover technology encrypts more than just text place using the tool, and they can and management issues. He messages. WhatsApp is owned by be easily saved to the client file. speaks frequently on law office Facebook, which will be a concern Searching, scheduled messages, management, legal technology, for some. SMS, MMS and automatic text ethics and business operations. Signal Private Messenger is replies are just a few of the features perhaps the best-known messaging available. Review all the features ENDNOTES encryption tool and can be used at www.zipwhip.com/features. 1. www.whatsapp.com/security. 2. https://signal.org. to send “group, text, voice, video, Since those at the office who use 3. “Ditch All Those Other Messaging Apps: document, and picture messages ZipWhip can see all text message Here’s Why You Should Use Signal,” Wired Magazine, Nov. 5, 2017, www.wired.com/story/ anywhere in the world without threads from all attorneys, some ditch-all-those-other-messaging-apps-heres- SMS.”2 It has been endorsed by special training may be required why-you-should-use-signal. some well-known security experts for staff members who will use it. and privacy lawyers. Wired maga- Other tools in this class include zine published an article in late 2017 Sendhub and TextMagic. saying everyone should be using Here’s another commonly asked it.3 Again, the challenge is getting question about text messaging. others to download and use the app. Can I send a text message from my It is free to use, as is WhatsApp. computer without subscribing to

THE OKLAHOMA BAR JOURNAL MAY 2019 | 9 Technology Is Virtual Reality the Future of Courtrooms? By Ron Vaughn

IRTUAL REALITY (VR) HAS MADE A SPLASH the last few years in the video and gam- Ving markets. People can strap on an Oculus Rift or HTC Vive and feel like they’re stepping into another reality. You can go on a roller coaster, swim with sharks or visit a haunted house. However, in the last few years VR has started to make its way into courtrooms as well.

Think about it… camp.2 Jurors get to literally walk College of Law, has been informing What better way to take a juror around and see the horrendous students and professionals alike back to the scene of a crime than environment, the terrible condi- about the various uses of VR in to put a VR mask on their face and tions and the thousands of inno- the courtroom. drop them right in the middle of a cent people that were put to death “VR opens up discovery or car accident or murder scene. in gas chambers! That has the evidence presentation to a limit- Folks who aren’t familiar with potential to literally change the less degree. Before we had poster VR might think it’s like playing outcome of a trial! boards, then we had PowerPoint; a video game or the graphics are Marc Lamber and James Goodnow, now we will have this 3D content equivalent to a game of Sonic the with Lamber Goodnow in Phoenix, that we actually import into a Hedgehog, but that’s not the case. sum up the new opportunity well. courtroom,” he said. “We have Jurors and other members of the “Virtual reality can do more than been using photographs in the courtroom are finding the visu- just transport jurors to the accident courtroom for years. It is the same als are crystal clear, the impact is scene, it can put them in the car at idea. It is just wrapping your mind almost like reality and people can ‘impact.’ The sense of ‘presence’ around this photo — instead of see and feel exactly what it would that VR provides has the potential being flat, it is now textured.” be like to be at a particular scene. to be a game changer in the prac- Tech-savvy attorneys are using tice of law,” they said. WHAT IS THE DOWNSIDE OF this to their advantage. It can also be used to poke holes VR IN THE COURTROOM? Clear back in 1992, a virtual in the opposing team’s arguments. One of the obvious problems reality presentation took jurors to Perhaps there is a key witness who surrounding the use of VR in a the scene of a motorcycle accident is testifying they saw the entire courtroom is the fact that depend- and persuaded the jury that a accident from where they were ing on how the video or scene is motorcyclist had chosen to ride on standing. If you can take the jury designed, it can easily present a dangerous terrain, and that Honda back to the corner where the wit- one-sided narrative, thereby giv- Motor Co. was not responsible for ness was standing and show them ing the jury a biased perspective. the accident.1 But, it’s come a long a tree was right in the way and “Imagine recreating a mur- way since then! there was no way the witness could der scene. I could show you that Currently, the Bavarian State have a clear view, that could really murder scene from the perspec- criminal office is using VR in the help your case … don’t you think? tive of the victim, or I could show Nuremburg trials by creating a Kenton Brice, a former trial you that murder scene from the virtual reality version of the infa- lawyer and now director of perspective of the killer. And mous Auschwitz concentration technology innovation at the OU whichever way you see it is going

10 | MAY 2019 THE OKLAHOMA BAR JOURNAL to give you a completely different experts to 3D scan the relevant Cost is a big factor as well! perspective of that crime,” Damian environment, transfer it to wire Even though the cost for creat- Schofield, a professor of human frame and then build it out – ing virtual reality scenes for the computer interaction at the State based on the physical evidence. courtroom is inching its way down, University of New York, said. 3 The 3D experts then turn it it’s still a game of whoever has the Essentially, that means if you over to accident reconstruction- deepest pockets wins. The cost for a can present your perspective bet- ists, biomechanical engineers and digitized recreation of a scene will ter, you win. This is all dependent other experts who can scientifi- generally run in the six figures. on whether the judge allows the cally explain what happened at “We can make it look as realistic VR re-creation into the courtroom the scene of the accident or crime. as you see in Hollywood, pretty of course. They are the ones who can put much,” said Gregory “Frenchy” together a final product that is Hedon, digital strategist and content WHAT DOES IT TAKE TO BRING ready for your jurors to experience director at Kitchen Sink Studios. “Is VR TO THE COURTROOM? in virtual reality. it always necessary? Absolutely not. Now we have you convinced However, it’s not as simple as Is it costly? Absolutely yes.”4 of the value VR can bring to any making a VR presentation and However, it’s noteworthy to court case, but that leads to more showing up in the courtroom. Your consider virtual reality as a cost questions such as: VR experts will need to be pre- saving tool compared to transport- pared to testify in court regarding ing the jury outside of the court- nn How do you create virtual the accuracy of their models, and room to the physical scene of an reality scenes? before that, the judge will decide incident or crime. nn How does it work in the if it can even enter the courtroom. courtroom? Your experts will receive intense SO, IS VIRTUAL REALITY nn How much is VR for your case? cross-examination from the oppos- WORTH YOUR TIME AS AN ing attorneys and will be subjected ATTORNEY? Most law firms that are cur- to quite the gauntlet before a head- It really comes down to the rently using VR are working with set is ever placed on a juror’s head. specific evidence you are trying to

THE OKLAHOMA BAR JOURNAL MAY 2019 | 11 The use of virtual reality for visualizations of mechanical or electrical systems in product liability or intellectual property cases could be particularly powerful tools for juror education and persuasion.

present to the jury. Sometimes no doubt continue to change how taking them to the scene is valu- the legal profession tells stories. able beyond measure, but other Will you be one of the early adap- times, a simple chart or graph tors or not? It’s definitely some- can do the trick and save lots of thing to consider! time and hassle – and present less opportunities for the oppos- ing lawyers to pick holes in your ABOUT THE AUTHOR evidence. Ron Vaughn is a solutions specialist The answer is, there really isn’t for EMSCO Solutions, a managed IT an answer. VR can be used in so services company in Oklahoma City many different ways, it’s hard to that provides technology services, broadly say when it’s good and including virtual reality, network when it’s bad. The use of vir- security and cloud computing. tual reality for visualizations of mechanical or electrical systems ENDNOTES in product liability or intellectual 1. See Dunn, J. (1995), “Virtual Reality Evidence,” The ‘Lectric Law Library, Retrieved property cases could be particu- Dec. 28, 2018, www.lectlaw.com/files/lit04.htm larly powerful tools for juror edu- (citing Stephenson v. Honda Motors Ltd. of America (Cal. Super. Case No. 81067, June 25, 1992)). cation and persuasion. What about 2. Cieslak, M. (2016), Virtual Reality to aid taking the jury inside the lungs of Auschwitz war trials of concentration camp guards, Retrieved Dec. 28, 2018, www.bbc.com/ a mesothelioma patient? news/technology-38026007. Although the opportunities 3. Varinsky, Dana. (2016), Virtual reality is being used to recreate crime scenes in the are there, if you factor in the costs courtroom, Retrieved Dec. 28, 2018, www. and other drawbacks, it remains to businessinsider.com/virtual-reality-in-the- courtroom-2016-11. be seen whether VR proves more 4. Alba, A. (2017), Virtual Reality Is Heading effective than other methods of To The Courtroom, Retrieved Dec. 28, 2018, www.vocativ.com/397353/virtual-reality- presentation. courtroom-trial/index.html. The widespread use and overall adoption of VR will ultimately depend on whether it can be shown that no other media is as effective or “truthful” in showing the substantive aspects of the case. Looking into the future, VR will

12 | MAY 2019 THE OKLAHOMA BAR JOURNAL

Technology The Ethics of Using Cloud- Based Services and Products By Darla Jackson and Kenton Brice

N 2012, THE ABA’S HOUSE OF DELEGATES voted to amend Comment 8 to Model Rule I1.1 regarding competence to provide that to “… maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …”1 Since the amendment, 36 states, including Oklahoma,2 have adopted some form of Comment 8 or an equivalent3 and a great deal has been written and blogged about what technology competence really means.4

In writing about the adoption that he had been suspended from failure to maintain technology of the comment, OBA General practicing before the United States competency, it does provide an Counsel Gina Hendryx has warned, Bankruptcy Court for the Western example of the potential for dis- “Maintaining competence may District of Oklahoma. The respon- ciplinary proceedings resulting very well require knowledge of dent’s suspension from practicing from failure to maintain technol- e-discovery, online filing, electronic in the bankruptcy court resulted ogy competence. 11 Mr. Oliver’s document retention policies, etc.”5 from his failure to gain competence initial disciplinary woes, however, Another article opines that because in preparing and e-filing bank- were not the result of a failure of “… the recentness in most states’ ruptcy documents. The majority to appreciate the risks of using a adoption of the duty of technological opinion characterized his conduct web-based technology e-filing sys- competence to Rule 1.1, few courts less harshly and encouraged him to tem but were based, in part, on his have had an opportunity to address “continue to improve his computer failure to appreciate the benefits this unique issue.”6 While this may skills” or to hire an “adept admin- of e-filing and to then acquire the be true, advice provided by Ms. istrative assistant” to perform tasks skill necessary to take advantage Hendryx suggests that businesses such as preparing pleadings.9 In of the web-based system. “today run on technology-based contrast, the dissent noted that the Since the ABA adopted the now tools and most now depend on the evidence did not suggest that “… infamous Comment 8 to Model communication provided by the Respondent will represent future Rule 1.1, most writers and com- internet … The best advice is to pay clients with any more competence mentators have been sounding the attention to cyber ethics issues and than he displayed in his bankruptcy warning: attorneys must under- try to behave reasonably. If you don’t practice, and find his lack of can- stand the risks associated with the know about best practices, attend dor and blatant disregard for the relevant use of technology to stay CLEs and read …”7 Bankruptcy Court’s orders disturb- competent. While understanding Oklahoma is one of the few ing.” As a result, the dissenting the risk of utilizing technology (or states that has had a technology- justices would have suspended the not using technology) is a key- related case. In State v. Oliver,8 the attorney for two years and one day.10 stone to an attorney’s competence, Oklahoma Supreme Court pub- While Oliver may be an extreme little has been written about an licly censured an attorney who case and the proceedings were attorney’s competence in under- failed to properly notify clients based on the attorney’s failure to standing the benefits of relevant and the Oklahoma Supreme Court report his suspension and not a technology. The hope is that this

14 | MAY 2019 THE OKLAHOMA BAR JOURNAL article will encourage attorneys to view their ethical duty of technol- ogy competency in a more positive way by helping lay a framework for how understanding various cloud-based services and products can benefit an attorney’s practice, and hopefully, their capabilities in representing their clients.

HOW TO UNDERSTAND THE RISK OF EMPLOYING CLOUD- BASED TECHNOLOGIES Before moving forward, how- ever, there are some resources for attorneys to aid the evaluation of cloud-based services and feel more confident in employing these ser- vices. The first is the Legal Cloud Computing Association, a group of “legal cloud computing compa- nies” that created a formal set of security standards “intended to help lawyers, bar associations, law societies, and cloud computing companies agree on what ‘reason- able care’ means in a cloud com- puting world.”12 The 21 standards are grouped into five sections: scope, physical and environmental measures, data integrity measures, users and access control and terms of service and privacy policy. While not completely exhaus- tive of all aspects of security and privacy possibilities or concerns with cloud-based services, these standards are a helpful roadmap for attorneys who are concerned

MAY 2019 | 15 about the security, confidentiality, method of sending documents to services due to human error ownership and access of the third parties. The reasons are clear: and not necessarily some nefar- information stored or processed in these services provide secure, ious coders sitting in a dimly lit the cloud. For example, Standard traceable, fast and authenticated basement.19 15 states in part that “In general, document transmission. Human behavior can cause secu- all user information entered into Much has been written about rity breaches with any technology – a SaaS13 application should be the security of online storage and have you ever sent a confidential treated as confidential, private requisite encryption and LCCA fax to the wrong fax number? In information that cannot be used by the SaaS provider for any purposes other than support of system integrity and usability objectives. Furthermore, the SaaS provider should only be permitted Client portals and online file sharing are to view any of your private infor- mation with users [sic] explicit continuing this trend and should begin replacing consent.”14 By ensuring that any SaaS provider utilized by an fax machines and email as the preferred attorney follows this standard, the attorney would arguably be method of sending documents to third parties. satisfying their ethical responsi- bility under Rule 1.6(c) to ensure that they take reasonable efforts The reasons are clear: these services provide to prevent unauthorized access to client information. secure, traceable, fast and authenticated

LEVERAGING THE CLOUD document transmission. FOR SENDING AND RECEIVING DOCUMENTS After understanding and assessing the risk of SaaS providers Standards 3 and 5 specifically fact, the structure and features of and their offerings, the benefits of address these security issues. For cloud-based services can actually taking advantage of these services the purposes of this article, just alleviate most security breaches can be incredible. Attorneys can do know that most commercially caused by human behavior, pro- more now than ever to communi- available file-sharing and client viding greater control over doc- cate with clients, draft and share portal services provide robust uments, audit capabilities and documents and even automate security and encryption proto- real-time collaborative abilities. their work, all in a more secure cols. For instance, Citrix ShareFile Cloud-based services transform and arguably ethical environment. provides from 128-bit to AES document sending to document Online file-sharing and client por- 256-bit encryption for documents sharing, with documents rarely tals are probably the most valuable in transit (depending on the web being actually “transmitted” to SaaS services available to attorneys. browser being used) and protects another party. Instead, the owner Sending and receiving documents stored documents for U.S. clients of the document provides access to have always been part of a lawyer’s using AES 256-bit encryption at the document for viewing, copy- routine. From carrier pigeons15 to SSAE 16 Type II (SOC 1) audited ing or printing and the document telegraphs and from fax machines datacenters hosted by Amazon never actually leaves the control of to email,16 innovative technologies Web Services.17 In other words, the originating party. have always persisted in provid- documents are stored in well- To accomplish this, documents ing faster, more efficient and more protected physical and digital must first be stored in a cloud- confidential means of sending docu- locations that no one can access based system. Then, the owner of ments. Client portals and online file unless they have the correct the document sends a hyperlink sharing are continuing this trend credentials, i.e., a password or to the stored document (or folder and should begin replacing fax encryption keys.18 Furthermore, containing the document) instead machines and email as the preferred most hacks of cloud-based of the actual document itself,

16 | MAY 2019 THE OKLAHOMA BAR JOURNAL providing enhanced access control a standalone system, provide integrated with the practice of and audit capabilities. When valuable features for constant law. Attorney competence related faxing, emailing or even mailing a contacts, such as clients or expert to litigation generally requires, document the sender loses control witnesses. First, they provide among other things, and at a over that document once it has outside users with a dedicated minimum, a basic understanding been sent. However, when using a portal they can access at any time. of, and facility with, issues relat- cloud-based service and sending Documents can be uploaded into ing to e-discovery, including the links to documents stored in the the portal, alleviating the need to discovery of electronically stored cloud, the sender retains complete create and email hyperlinks when- information (‘ESI’).”23 control over the document. The ever a document is shared. Most An attorney who is competent recipient must access the docu- systems allow for the outside user in investigating a case should ment through the provided hyper- to receive an automatic email noti- also be concerned with collecting link and the document owner has fication that a new document was data in such a way that it can be the ability to receive notifications uploaded, removing the need for used as evidence in subsequent each and every time the document the attorney to notify the client to litigation. One of the key bar- is accessed. Additionally, access to check the portal. For clients, these riers to admission of potential the document is recorded and the portals can also provide other use- social media evidence has been owner has an effective audit trail ful information, such as calendar authentication. However, with of who, when, where and how the events for their matter, billing the December 2017 implementa- document was accessed, including records and contact information tion of Federal Rule of Evidence IP addresses, geo-locations and for assigned attorneys and staff. 902(14), there is a distinct advan- time-stamps of when the docu- Additionally, portals can tage in using web-based technol- ment was accessed. provide outside users the abil- ogies to not only discover social The owner can also set a vari- ity to share documents with the media evidence but to capture it ety of access parameters and per- attorney or firm in a secure envi- through means that will facilitate missions for the document or the ronment. Instead of clients using authentication. documents contained in a folder. email or fax, they can easily upload FRE 902(14) provides: For instance, Egnyte20 provides their sensitive documents to the multiple options for sharing links portal. The attorney and any staff The following items of evi- with external individuals: expira- assigned to that matter would then dence are self-authenticating; tion of the link on a certain date receive an email notification and they require no extrinsic evi- or after a certain number of clicks, an alert in the system itself. Finally, dence of authenticity in order whether the individual can access client portals provide a quick and to be admitted. the most recent version of the seamless method for attorneys to … file or the original version of the eliminate access to any documents (14) Certified Data Copied from document at the time the link was that have been shared outside of an Electronic Device, Storage created, the various access levels the firm by removing a person’s Medium, or File. Data copied (open, password protected, only access to the portal. from an electronic device, stor- those in the organization or a spe- age medium, or file, if authen- cific user), whether the document E-DISCOVERY ticated by a process of digital can be downloaded or printed and As noted in a previous article identification… whether to receive notifications on technology competence, “[s] each time the link is clicked. 21 ome courts have authored scath- Printing a social media post These types of settings provide ing reprimands of attorneys who would not qualify as “a process attorneys with more assurance have defended discovery mis- of digital identification,” but tools their documents are not being conduct with claims of computer such as X1 Social Discovery,24 accessed, copied or further shared illiteracy.”22 California’s Standing SMI25 and Page Vault26 can not with unauthorized persons. Try Committee on Professional only assist with the discovery of that with email or a fax machine! Responsibility and Conduct potential social media evidence Finally, client portals move issued an often-cited opinion in but also provide a process for digi- cloud-based document sharing 2015 stating that an attorney’s tal identification (by the collection to another level. Client por- “… obligations under the ethical of metadata)27 which would permit tals, whether part of a case or duty of competence evolve as new self-authentication with an affida- practice management system or technologies develop and become vit from qualified individuals.

THE OKLAHOMA BAR JOURNAL MAY 2019 | 17 LEGAL RESEARCH/ the Oklahoma Bar Association since emphasize the benefits of legal ANALYTICS28 January 2007. The advantages of analytics for litigation (and nego- Another area where the benefits using the web-based Fastcase legal tiation) planning and strategy, as of web-based services may be research platform, as noted by Ed well as pricing and budgeting.33 implemented is legal research. Walters, CEO of Fastcase, include: For example, Picture It Settled Westlaw and Lexis have provided is a web-based tool that has web-based services for so long that citation analysis, data visualiza- “aggregated negotiation statistics they are often not even consid- tion, mobile apps, and big data and built a predictive platform.”34 ered “cloud computing” services. analysis to help lawyers iden- Lexis Advance Context is a fea- However, as the use of folders on tify the seminal cases in their ture that launched in November both systems has continued to area – to find them fast and with 2018 and is based on Ravel Law, expand along with the develop- confidence. Forecite uses patent- which was acquired by Lexis in ment of folder analysis on Westlaw pending citation analysis to find 2015. It provides an analysis of the Edge,29 more attorneys are storing cases that keyword searches language of opinions authored work product via these research miss. Fastcase 7 includes new by judges to identify cases and platforms and sharing research analytical tools, such as an arguments the judge finds per- with co-counsel and clients via enhanced Bad Law Bot, the suasive.35 Context does this for not system features. Further, use of world’s first big data tool to iden- only federal judges, but also some web-based research tools has the tify negative case history, and a state court judges, including select benefit of ensuring that research tag cloud that identifies legal con- Oklahoma judges. Westlaw Edge materials are updated and provide cepts hidden in search results.31 added Precedent Analytics in 201936 citator services allowing attor- that performs a similar function. neys to check the status of cases Another benefit of using web- Bloomberg Law also provides and statutory authority. Westlaw based legal research tools is the docket-based litigation analytics Edge integrates artificial intelli- availability of legal analytics. Some that are useful in litigation planning gence (AI) technology to provide go so far as to conclude that “legal and addressing client expectations, additional information regarding decisions in the future will be made Context provides the additional the status of laws and cases with with data. Not all at once, but opinion language analysis. Use of a new KeyCite warning which starting now, and increasing every cloud-based practice management suggests when “law that has been year from here forward. This is not software to collect data to make indirectly overturned.”30 controversial – it is malpractice to effective pricing determinations The Fastcase legal research sys- think otherwise.”32 Others take for alternative billing arrangements tem has been a member benefit of a more positive approach and can also provide a competitive advantage to small firms.

Certain types of legal services are becoming more commoditized. Does commodity pricing mean that the price of legal services has to trend to zero? No, but it does mean that lawyers will have to differentiate their services … In a competitive market, clients will insist on fixed-fee engagements, and lawyers who offer them (and who price them correctly) will be the most competitive in this environment ... The key to pricing fixed-fee engagements lies with data … More experienced lawyers and firms may be able to access some of the most important infor- mation from their practice man- agement or billing software …37

18 | MAY 2019 THE OKLAHOMA BAR JOURNAL ROSS Intelligence and Casetext are two AI-fueled legal research services that provide different options for AI to assist attorneys.

AI IS A CLOUD-BASED in the grammatical structure of the service, launched in 2018, that takes SERVICE: LEGAL RESEARCH passages it is reading and then AI in law practice to the next level. AND BEYOND 3) creates word-based relationships LegalMation43 is a first of its kind AI is a revolutionary, cloud- to create syntax and word patterns AI system that can actually draft based service that can reshape and that would help answer the ques- legal documents for you with its augment how attorneys do their tion. Finally, through the ranking Complaint or Discovery Analyzer work. In fact, the recent develop- process, ROSS then attempts to solutions. Leveraging IBM’s Watson, ment of networked computation match the facts and procedural LegalMation’s Complaint Analyzer (aka, the cloud), is part of what has posture of the attorney’s case with will actually draft an answer to led to the recent boom and realiza- the research results, creating con- a complaint, together with all tion of AI technology. Today’s AI is textual results depending on the potential affirmative defenses, nothing like its predecessors. It is needs of the attorney.39 based on the causes of action and also nothing like the AI of science Casetext announced the newest facts pleaded in the complaint.44 fiction. Instead of a machine over- iteration of their AI-assisted legal Likewise, the Discovery Analyzer, lord, AI instead plays an augment- research service, CARA.AI, in May which is currently in beta, will read ing role for attorneys to auto- 2018. Similar to a service from ROSS through discovery requests, such mate their services. AI is fueling c a l le d EVA, 40 CARA.AI creates as requests for production and advances in legal research, as well context-aware legal research based interrogatories, and then draft shell as other areas of legal work, includ- on legal briefs and work-product discovery responses, including objec- ing litigation document drafting uploaded by the attorney into the tions using its SmartObject feature.45 and due diligence reviews. system. After uploading the brief, LegalMation’s services are only ROSS Intelligence and Casetext CARA.AI then provides brief-specific, available in limited jurisdictions at are two AI-fueled legal research context-aware legal research that the moment, including California, services that provide different customizes your legal search and New Jersey and Texas, but options for AI to assist attorneys. results based on the facts and LegalMation has shown that AI can Leveraging AI, ROSS allows for legal issues actually discussed in actually start drafting documents, question and answer style legal the brief. With this kind of tool, which can be an incredible help research. An attorney simply asks attorneys can perform research for over-worked, deadline-driven ROSS a question and then ROSS faster, more efficiently and with attorneys. Casetext has also hinted goes through what is essentially a better results.41 that AI-assisted drafting is part of three-step process – understanding, AI can actually do more than just its “roadmap” for future services.46 retrieval and ranking38 – to pro- augment legal research. LaxGeex vide the attorney with a variety recently identified 11 areas of law SUMMARY of relevant passages from cases. practice, including legal research, While there are certainly risks The ranking element is actually where AI tools currently exist to associated with employing web- the most important part of the augment attorneys’ work.42 Of based technologies, it is equally process, where the AI system these categories, most AI tools important to understand the ben- 1) leverages its training (through are assisting attorneys in recog- efits that can be reaped from the machine-learning) to actually read nizing patterns in data and with use of these technologies as part passages of cases to 2) find meaning decision-making. There is one of maintaining competence and

THE OKLAHOMA BAR JOURNAL MAY 2019 | 19 delivering the best legal services to session4_information_governance/puiszis_lawyers_ legal-analytics-vs-legal-research/. However, for clients. In the current environment, duty_technological_competence.authcheckdam.pdf. purposes of this short piece, the topics will be 5. Gina Hendryx, “Recently Adopted Changes discussed with limited treatment of the distinction. clients are demanding that all to the ORPC,” 88 Okla. B. J. 1747 (2017). 29. “Westlaw Enhancements,” Thomson businesses, including their lawyers, 6. Alexandra G. Ah Loy, “The Attorney’s Reuters, store.legal.thomsonreuters.com/ Ethical Duty to Maintain Technological law-products/westlaw-legal-research/ take advantage of developing web- Competence,” Okla. B. J. December 2018, at 15,16. enhancements#folder-enhancements. based technologies. It is impossible 7. Gina Hendryx and Jim Calloway, “Cyber 30. Jean O’Grady, “Thomson Reuters Launches Ethics in the Digital Age” at the 2018 OBA Solo & Precedent Analytics to Challenge Lexis Context to be an expert on every new tech- Small Firm Conference (June 23, 2019) (Session (formerly Ravel Law),” Dewey B Strategic Blog (Jan. 28, nology, but to comply with their materials on file with authors). 2019), www.deweybstrategic.com/2019/01/thomson- 8. State ex rel. Oklahoma Bar Ass’n. v. Oliver, reuters-launches-precedent-analytics-challenge- ethical duty of technology compe- 2016 OK 37, 369 P.3d 1074 (Subsequent proceedings lexis-context-formerly-ravel-law.html. Also see, Jason tence lawyers should develop at at 2018 OK 95), www.oscn.net/applications/oscn/ Tashea, “Thomson Reuters Announces Westlaw Edge, DeliverDocument.asp?CiteID=483376. increasing role of AI and analytics,” ABA Journal least a familiarity with web-based 9. State ex rel. Oklahoma Bar Ass’n. v. Oliver, (July 12, 2018), www.abajournal.com/news/article/ technology tools and act reason- supra note 8, at ¶15. thomson_reuters_announces_westlaw_edge_ 10. In December 2018, Mr. Oliver resigned pending increasing_role_of_ai_and_analytics/. ably when gathering information disciplinary proceedings regarding complaints 31. Ed Walters, “The Tyranny of Hunches: about adopting tools that could unrelated to his technological competence. State ex Using Analytics to Give Your Firm a Strategic rel. Oklahoma Bar Ass’n. v. Oliver, 2018 OK 95. Advantage,” Florida Bar Journal, January 2016, at benefit their practice. 11. State ex rel. Oklahoma Bar Ass’n. v. Oliver, 46, 47, www.floridabar.org/the-florida-bar-journal/ 2018 OK 95. the-tyranny-of-hunches-using-analytics-to-give- 12. Legal Cloud Computing Ass’n, your-firm-a-strategic-advantage/. www.legalcloudcomputingassociation.org/about/ 32. Ed Walters, supra note 28, at 46. ABOUT THE AUTHORS (last visited Jan. 25, 2019). 33. David Curle, “Take Your Small Law 13. SaaS is shorthand for “Software as a Service.” Firm to The Next Level by Leveraging Legal Darla Jackson is a research librarian This is an alternative name for a cloud-based service. Data Analytics,” Above the Law (Aug. 9, 2018), at the OU College of Law. She 14. “LCCA Security Standards, Standard 15 abovethelaw.com/small-firm-center/2018/08/take- Privacy Policy,” Legal Cloud Computing Ass’n, your-small-law-firm-to-the-next-level-by- previously served as a practice www.legalcloudcomputingassociation.org/ leveraging-legal-data-analytics/. management advisor for the OBA standards/#section5 (last visited Jan. 25,2019). 34. R. Amani Smathers, “The 21st-Century and as a judge advocate in the 15. Among many uses of carrier pigeons, T-Shaped Lawyer,” Law Practice, July/August Paul Julius Reuter (of Thomson Reuters fame) at 2014, at 32,35. U.S. Air Force. She is an ABA one time used carrier pigeons to transmit stock 35. Bob Ambrogi, “‘Context,’ Launching TECHSHOW speaker and a graduate prices. “CHRONOLOGY: Reuters, from pigeons Today from LexisNexis, Applies Unique Analytics to multimedia merger,” Reuters (Feb. 19, 2008), to Judges and Expert Witnesses,” LawSites, of the OU College of Law and School www.reuters.com/article/us-reuters-thomson- (Nov. 29, 2018), www.lawsitesblog.com/2018/11/ of Library and Information Studies. chronology/chronology-reuters-from-pigeons-to- context-launching-today-lexisnexis-applies- multimedia-merger-idUSL1849100620080219. unique-analytics-judges-expert-witnesses.html. Kenton Brice is the director of 16. Most modern email is cloud-based too. If 36. Thomson Reuters announced the release Technology Innovation at the OU you are using Gmail, Yahoo.com or other “hosted” of Precedent Analytics that includes information service, you are using the cloud. about which cases judges cite to most often College of Law. A 2009 graduate of 17. ShareFile Security and Compliance Frequently by topic. Jason Tashea, “Westlaw Edge Adds the OU College of Law, he teaches Asked Questions, Citrix, www.sharefile.com/resources/ Judicial Citation Analytics,” ABA Journal (Jan. citrix-sharefile-security-and-compliance-frequently- 28, 2019), www.abajournal.com/news/article/ courses and workshops on legal asked-questions (last visited Jan. 25, 2019). westlaw-edge-adds-judge-analytics/. research, technology in practice and 18. For more information about using cloud- 37. Ed Walters and Morgan Morrisette Wright, based storage safely, check the LCCA standards. “The Decision Advantage - Making Small Data Work legal innovation at the college and 19. Carmen Reinicke, “The Biggest Cybersecurity for Your Firm,” Okla. B. J., May 2018, at 32, 34, www. multiple conferences, including the Risk to US Businesses Is Employee Negligence, okbar.org/barjournal/may2018/obj8913walterswright. Study Says,” CNBC (June 21, 2018), www.cnbc. 38. A Visual Guide to AI, Ross, rossintelligence. OBA Solo & Small Firm Conference. com/2018/06/21/the-biggest-cybersecurity-risk-to-us- com/what-is-ai.html (last visited Jan. 25, 2019). businesses-is-employee-negligence-study-says.html. 39. Id. 20. Egnyte, www.egnyte.com/ (last visited 40. Meet Eva, Ross, eva.rossintelligence.com ENDNOTES Jan. 25, 2019). (last visited Jan. 25, 2019). 1. Model Rules of Prof’l Conduct r. 1.1 21. “Sharing with File/Folder Links in Egnyte,” 41. Jean O’Grady, “CARA AI: Did Casetext Just (Am. Bar Ass’n 2012), www.americanbar.org/ Egnyte Community, helpdesk.egnyte.com/hc/ ‘Drop Kick’ Keywords Out of the Legal Research groups/professional_responsibility/publications/ en-us/articles/201637104-Sharing-Files-in- Process?” Dewey B. Strategic Blog (May 1, 2018), model_rules_of_professional_conduct/ Egnyte#settings (last visited Jan. 25, 2019). www.deweybstrategic.com/2018/05/cara-ai-casetext- rule_1_1_competence/comment_on_rule_1_1/. 22. Alexandra Ah Loy, supra note 6, at 16. just-drop-kick-keywords-legal-research-process.html. 2. In Re Oklahoma Rules of Professional 23. State Bar of Cal. Standing Comm. on Prof’l 42. “3 charts that show the unstoppable Conduct, 2016 OK 91, www.oscn.net/applications/ Responsibility & Conduct, Formal Op. 2015-193 growth of Legal Tech,” LawGeex Blog (May 22, oscn/DeliverDocument.asp?citeid=479331. (2015), available at www.calbar.ca.gov/Portals/0/ 2018), blog.lawgeex.com/3-charts-that-show-the- 3. Robert J. Ambrogi, “35 States Have Adopted documents/ethics/Opinions/CAL%202015-193%20 unstoppable-growth-of-legal-tech/. the Duty of Technology Competence,” LawSites %5B11-0004%5D%20(06-30-15)%20-%20FINAL.pdf. 43. Legalmation, www.legalmation.com/ (last (n.d.), www.lawsitesblog.com/tech-competence/. 24. X1SocialDiscovery, www.x1.com/products/ visited Jan. 25, 2019). 4. See, e.g. Tad Simons, “For a Lawyer, What x1-social-discovery/ (last visited Jan. 25, 2019). 44. Alison Arden Besunder, “Not Your Does ‘Technology Competence’ Really Mean?,” 25. SMI, smiaware.com/ (last visited Jan. 25, 2019). Parents’ Robot,” N.Y St.B.A.J., Mar/Apr 2018, Legal Executive Institute (April 20, 2018), www. 26. Page Vault, www.page-vault.com/ (last at 20, www.nysba.org/Journal/2018/Apr/ legalexecutiveinstitute.com/lawyers-technological- visited Jan. 25, 2019). Not_Your_Parents%E2%80%99_Robot/. competence/; Tyler Roberts, “What Is A Lawyer’s Duty Of 27. U.S. Library of Congress, Sustainability of 45. Gabrielle Orum Hernández, “New Beta Technology Competence?,” SmartLawyer (Fri, 02/02/2018 Digital Formats, www.loc.gov/preservation/digital/ LegalMation Module Can Draft Discovery Response - 11:29am), www.nationaljurist.com/smartlawyer/ formats/fdd/fdd000236.shtml (last visited Jan. 25, 2019). Documents,” LegalTechNews (July 16, 2018), www. what-lawyers-duty-technology-competence; Steven 28. A distinction between legal research and law.com/legaltechnews/2018/07/16/new-beta- M. Puiszis, “A Lawyer’s Duty of Technological legal analytics has been discussed. See, e.g. Owen legalmation-module-can-draft-discovery-response- Competence,” www.americanbar.org/content/dam/aba/ Byrd, “Legal Analytics vs. Legal Research: What documents/ (with subscription) events/professional_responsibility/2017%20 is Difference?,” Law Technology Today (June 12, 46. O’Grady, supra note 40. Meetings/Conference/conference_materials/ 2017), www.lawtechnologytoday.org/2017/06/

20 | MAY 2019 THE OKLAHOMA BAR JOURNAL OBA REAL PROPERTY SECTION 2019 Cleverdon Real Property Roundtable Seminar

The Materials for this course have been submitted to the Oklahoma Bar ROUNDTABLE TOPIC SPEAKERS Association Mandatory Continuing Legal Education Commission for “Update of Oklahoma Real Property Kraettli Q. Epperson approval of 4 hours of CLE credit, Title Authority: Revisions for 2017-2018” Mee Mee Hoge & Epperson including one hour of ethics. “Water Rights – Real Property, or Not?” Dean Couch The seminar is limited to sixty (60) GableGotwals participants per location in order to encourage open discussion. At “The Stigler Act Amendments: Stephanie Moser-Goins the event, participants will choose Don’t Panic!” Ball Morse Lowe three (3) of the roundtable sessions to attend but will receive the “Surveying 101: What Real Property Bruce Pitts, PLS materials for all of the presentations. Attorneys Really Need to Know” Oklahoma Board of Licensure Following the roundtable sessions, for Professional Engineers and lunch will be provided during the Land Surveyors final CLE topic: “Ethics and Attorney Well-Being.” Registration and “Oklahoma’s Renewable Energies and Jim Roth Check-in begins at 8:30 A.M. The Real Property Issues” Phillips Murrah Law, first session begins at 9:00 A.M. A New Energy and OCU Law School

This seminar is free for members Eric Davis of the Real Property Section and Phillips Murrah Law and A New Energy $25.00 for non-members Lindsey Pever To register, complete the form A New Energy below and e-mail to deborah@ reedlegalok.com, Subject line: “Ethics and Attorney Well-Being” Joe Balkenbush Cleverdon Registration not later OBA Ethics Counsel than May 24, 2019.

NOTE: MATERIALS ARE ONLY AVAILABLE VIA E-MAIL

Oklahoma City – May 30, 2019 – 8:30 AM – 1:00 PM Oklahoma City University School of Law 800 N. Harvey, Oklahoma City, OK Tulsa – May 31, 2019 8:30 AM – 1:00 PM University of Tulsa School of Law 3120 E. 4th Pl., Tulsa, OK

NAME: TELEPHONE: FIRM NAME: BAR NUMBER: ADDRESS: E-MAIL: Technology When Elephants Collide Maintaining Technological Competence vs. Complying With Discovery Rules By Alexandra G. Ah Loy and Mbilike M. Mwafulirwa

22 | MAY 2019 THE OKLAHOMA BAR JOURNAL When two elephants fight, it is the grass that suffers. – African Proverb

HE TRUMPET FOR TECHNOLOGICAL COMPETENCE in legal practice has sounded. TGone are the days when electronic research, filing, pleading, discovery software and tech-filled trials were phenomena – all those are now an indispensable part of modern practice. Gone too are the days when lawyers could turn a blind eye to those technological developments.1 The rules of legal ethics now make it an ethical requirement for lawyers to become familiar with relevant technological advances affecting their practices.2 For added measure, courts in Oklahoma have shown themselves willing to discipline lawyers who fall short.3 The rules do not, however, give specific guidance on the scope of what is “relevant” for the purposes of satisfying technological competence. In the specific context of discovery, for example, does this mean that a lawyer’s duty of electronic competence is gauged by prevailing norms in a given practice area or by the locale in which the attor- ney maintains her practice? Relatedly, early guidance in 2007 and 2008 from the Alabama, Arizona and New York bar advisory ethical opinions suggested that lawyers should “scrub documents” of metadata before disclosing to opposing counsel.4 Oklahoma has not taken a position on the issue, and as we outline below, with good reason.

Both the Federal Rules of Civil Therein lies the conflict for the THE DUTY OF Procedure and the Oklahoma Oklahoma attorney and the subject TECHNOLOGICAL Discovery Code require that doc- of this article. As in the African COMPETENCE uments and electronically stored proverb of the two elephants col- Over the past two decades, information be produced in the liding outlined above, here the first many courts and advisory opinions “form or forms in which it is ordi- elephant represents the lawyer’s have addressed lawyers’ ethical narily maintained” by the disclos- ethical obligations for technological obligations and duties related to ing party “or in a reasonably usable competence, the second elephant is the advancements in technology.7 form or forms.”5 This rule, several the lawyer’s duty as an officer of the As such, it was no surprise when courts have held, requires that if court to comply with her discovery Comment 8 to ABA Model Rule 1.1 electronic documents and things are obligations and the grass represents was amended in 2012 to read: requested, metadata should also be the lawyer in the middle of these disclosed; a failure to do so can be a seemingly conflicting legal obliga- breach of discovery obligations.6 tions. To the extent possible, we provide guidance on these issues.

THE OKLAHOMA BAR JOURNAL MAY 2019 | 23 Maintaining Competence PROVIDING NECESSARY could encompass, for example, the CONTEXT: METADATA time that the system users logged [8] To maintain the requisite EXPLAINED on, the data that they generated, knowledge and skill, a lawyer Metadata is “information altered or removed during their should keep abreast of changes describing the history, tracking, period of use, software used in the law and its practice, or management of an electronic (e.g., computer software used to including the benefits and risks file.”13 This can encompass generate financial projections on associated with relevant technol- “embedded data, including com- spreadsheets).17 Again, applying ogy, engage in continuing study puter programs” “retain[ed] draft our broad-working definitions of and education and comply with language, editorial comments, and metadata, that information would all continuing legal education other deleted matter…in an elec- easily qualify.18 requirements to which the tronic file.”14 Courts have defined Finally, consider a scenario lawyer is subjected. metadata to include “information where a client forwards an elec- about a particular data set which tronic document to her attorney for This amendment does not describes how, when and by review. The attorney redlines the impose any new obligations on whom it was collected, created, document with edits and several attorneys but instead acknowledges accessed or modified and how it is comments that provide the client the evolving duty of competence formatted (including data demo- legal guidance. Although the data by recognizing the impact of tech- graphics such as size, location, generated by the attorney might nological advancements on legal storage requirements and media also qualify as metadata,19 this practice. In its report to the House information)” and “all of the con- fact-pattern raises thorny privilege of Delegates, the ABA Commission textual, processing, and use infor- issues and the lawyer’s duty to pre- on Ethics 20/20 explained that “the mation needed to identify and serve confidentiality in client docu- amendment is intended to serve certify the scope, authenticity, and ments.20 As a result, if this metadata as a reminder to lawyers that they integrity of active or archival elec- was not properly protected and should remain aware of technol- tronic information or records.”15 inadvertently disclosed there could ogy, including the benefits and risk Not all metadata is treated the be significant legal ramifications for associated with it, as part of a law- same; the content of the data deter- both lawyer and client. yer’s general ethical duty to remain mines how it should be handled. competent.”8 Thus, competent Three scenarios underscore the PRODUCTION OF METADATA representation includes the duty point. First consider, for example, a IN DISCOVERY to adapt to new technologies that joint project by opposing lawyers The Oklahoma Discovery Code affect legal practice.9 to prepare court documents like envisions that “[c]ivil trials no Likewise, Rule 1.1 of the joint status reports, agreed protec- longer be conducted in the dark. Oklahoma Rules of Professional tive orders or draft pretrial orders. Discovery, consistent with recog- Conduct largely mirrors its ABA This necessitates a back and forth nized privileges, provides for the counterpart. Rule 1.1 provides between the respective lawyers parties to obtain the fullest knowl- that “[c]ompetent representation of several electronic drafts, most edge of the issues and facts before requires the legal knowledge, skill likely with track changes, deletions trial.”21 Specific to production of thoroughness and preparation and editorial comments. Based documents and things, Oklahoma reasonably necessary for that rep- on our working definition from law allows a requesting party to resentation.”10 In 2016, Comment the Federal Civil Procedure Rules request and obtain discoverable 6 to Rule 1.1 was amended to Advisory Committee, all that back “electronically stored informa- make clear that the duty of com- and forth data with the edits and tion.”22 The requesting party is petence includes the “benefits comments would qualify as meta- allowed to “specify the form or and risks associated with relevant data.16 With regard to that kind of forms in which electronically technology.”11 Unfortunately, given metadata, the ordinary expectation stored information is to be pro- the ever-changing nature of tech- is that the parties would freely duced.”23 If, on the other hand, the nology, the duty of technological share this information to facilitate requesting party fails to specify competence is constantly evolving a just and speedy review of edits the preferred form of electronic and unclear at times.12 To exem- and the drafting exercise. production, the responding party plify the point, we will consider The second scenario involves “shall produce the information in a the thorny issues raised by meta- internal systems data for a partic- form or forms in which it is ordi- data in discovery. ular business or enterprise. This narily maintained or in a reasonably

24 | MAY 2019 THE OKLAHOMA BAR JOURNAL usable form or forms . . .”24 If an acted “to preclude the possibility in a case.38 The party opposing objection is lodged to the requested that Plaintiffs could ‘undelete’ or discovery “has the burden of form of production but not to recover privileged and protected addressing proportionality.”39 Cost is releasing the information generally, information properly deleted from not the lone dispositive consideration the disclosing party should indi- the spreadsheets.”33 The court in the proportionality analysis.40 In cate “the form or forms it intends to rejected those arguments. The short, in addition to relevance, pro- use.”25 After a meet-and-confer, the court held that the new amend- portionality considerations play an requesting party is then empow- ments to the Federal Rules of Civil important part in metadata discov- ered to move for a court order Procedure contemplate that if ery requests, just as they do in varied with respect to any objection to metadata is specifically requested other discovery contexts.41 or other failure to respond to and is relevant, it should be pro- the request.26 duced.34 Several other federal IS THERE REALLY A Thus far, there are no pub- courts have also followed suit.35 CONFLICT BETWEEN THE lished Oklahoma cases that have Other courts have squarely DISCOVERY RULES AND specifically addressed parties’ rejected that a producing party LEGAL ETHICS? electronic discovery obligations must produce electronic docu- The prevailing view is that under the Oklahoma Discovery ments with metadata intact.36 there is no conflict. The American Code. Several federal courts, how- Interestingly, courts on both sides Bar Association (ABA) issued ever, have addressed such issues of the spectrum relied on the Formal Ethical Opinion 06-442 while construing Fed. R. Civ. P. emerging standards of electronic that addressed the use of meta- 34, the federal analogue to 12 O.S. discovery in reaching opposite data. To begin with, the ABA took §3234.27 Those courts have recog- conclusions. Those courts refusing the position that a lawyer can nized there is a split of authority disclosure emphasized, however, review metadata in electronic doc- on whether, and to what extent, that it is incumbent upon the par- uments from opposing counsel or metadata must be produced.28 ties to discuss e-discovery issues, third parties.42 The formal opinion The cases appear to show this is a including whether and in what also draws a distinction between case-by-case determination, taking format metadata should be pro- different kinds of metadata; on the into account (among other things) duced and the bases for objecting one hand, the opinion recognizes whether there was a specific to any such production, prior to metadata that relates to when the request for metadata,29 the rele- seeking relief from the court.37 data was saved or altered, who vance, the applicability of privi- leges, whether the costs of seeking such discovery is proportionate to the needs of the case and whether objections and claims of privilege are timely asserted by the party Thus far, there are no published Oklahoma objecting to production.30 The Federal District Court in cases that have specifically addressed parties’ Kansas was among the first to spearhead discovery of meta- electronic discovery obligations under the data. In Williams v. Sprint/United Management, the producing defen- dant had “scrubbed” the metadata Oklahoma Discovery Code. and had “locked” certain data on the electronic spreadsheets prior to production.31 The specific scrubbed metadata at issue included “infor- A word about the new pro- created the data, when and so on – mation such as file names, dates of portionality requirement in the as to this there is no specific the file, authors of the file, recip- discovery rules. The proportionality prohibition in the ethics rules ients of the file, print-out dates, requirement, drawn from the from reviewing that data.43 On changes and modification dates Federal Rules of Civil Procedure, the other hand, the opinion also and other information.”32 To justify is a “case specific determination” notes different types of metadata – the scrubbing of such metadata, that ensures that no more than for example, confidential attorney- the defendant claimed that it necessary discovery is utilized client confidences – for which

THE OKLAHOMA BAR JOURNAL MAY 2019 | 25 recognizes that metadata can be – and is sometimes – inadvertently disclosed, and there may be a duty upon the receiving party in certain circumstances – especially if the receiving lawyer “knows or reasonably should know that the metadata was inadvertently sent” – to notify the sender so she can take protective measures.53 Even then, as Comment 2 makes clear, inadvertent disclosure of metadata can also constitute waiver of applicable privileges,54 but whether there has actually been a waiver is a case-specific deter- mination for courts to determine appropriate safeguards are been produced in the way of with regard to all the pertinent 44 warranted. When privileged discovery,” while both the circumstances. This is the same information is at issue, the lawyer Alabama and Arizona opinions approach Oklahoma law takes for should remove the privileged data, were in accord with New York disclosure of information covered retain it, disclose the nonprivileged on inadvertent disclosures, they by the attorney-client privilege or information and, if necessary, seek parted ways with New York by the work-product doctrine.55 This a protective order for the withheld expressly permitting discovery of approach would most likely be 45 information. The D.C. Bar Ethics metadata in discovery, as long as expected to carry over into various 48 Opinion 341 and Maryland State privileged data is safeguarded. other privilege claims. Bar Opinion 2007-09 mirror this Inadvertently disclosed meta- 46 approach. Understood in this data poses very difficult questions. CONCLUSION sense, the removal of privileged More so, if that data contains During discovery, when metadata is no different to other privileged data or information metadata is at issue, the lawyer’s situations that involve discovery that implicates a lawyer’s duty obligation remains to disclose 49 of information that is subject to to maintain client confidences. unprivileged, relevant data that is recognized privileges; after all, Rule 4.4(b) of the Oklahoma Rules proportional to the needs of the recognized privileges stand as a of Professional Conduct provides case. Legal ethics do not excuse permissible barrier to otherwise that “[a] lawyer who receives a this duty. Even then, the lawyer 47 discoverable information. document or electronically stored has a competing duty to prevent Against this background, information relating to the repre- inadvertent disclosure of privi- the ethical guidance from the sentation of the lawyer’s client and leged data. To properly discharge Alabama, Arizona and New York knows or reasonably should know that these competing obligations, bars – that suggested that law- the document or electronically the lawyer should first carefully yers should “scrub documents” stored information was inadver- assess the electronic information of metadata before disclosing tently sent shall promptly notify to determine whether it contains 50 to opposing counsel – can now the sender.” In 2008, Comment 2 sensitive metadata, so that privi- be understood within its proper was added to Rule 4.4, which dis- leges and objections may be timely context. Those opinions do not go cussed ethical obligations arising asserted. Finally, if the lawyer 51 against the grain of the preceding out of inadvertent disclosures. In determines it is necessary or pru- analysis; rather, they address an 2016, Comment 2 to Rule 4.4 was dent to scrub such metadata, the entirely different situation premised amended to specifically address lawyer should take appropriate on the assumption that privileged inadvertent disclosures of elec- measures to ensure the metadata metadata had been inadvertently tronic information, including is preserved in its original form as 52 disclosed to opposing counsel. metadata. Although there is no well and seek protection from the The New York opinions expressly legal authority interpreting the court, if need be. disclaimed taking a position on impact of the amended Comment “electronic documents that have 2 to Rule 4.4, the amendment

26 | MAY 2019 THE OKLAHOMA BAR JOURNAL ABOUT THE AUTHORS 15. Williams, 230 F.R.D. at 646 (quoting The 38. Reibert v. CSAA Fire & Cas. Ins. Co., No. Sedona Guidelines: Best Practice Guidelines & 17-CV-350-CVE-JFJ, 2018 WL 279348, at *4 (N.D. Alexandra G. Ah Loy is a partner Commentary for Managing Information & Records Okla. Jan. 3, 2018) (applying Fed. R. Civ. P. 34); at the law firm of Johnson, Hanan, in the Electronic Age, App. F (2005)). Okla. Stat. Tit. 12, §3226(B)(1)(a). 16. See Advisory Committee Comment to 39. Id. Vosler, Hawthorne & Snider in Fed. R. Civ. P. 26(f) (2006 Amendment). 40. Id. at **4-5. Oklahoma City where she focuses 17. See Ronald J. Hedges, et al., Managing 41. See Ronald J. Hedges, et al., Managing Discovery of Electronic Information: A Pocket Guide Discovery of Electronic Information at 19-22, her practice in civil litigation, including for Judges 4 (Fed. Jud. Cntr. 3rd ed. Sept. 20, 2017). supra note 17. medical malpractice, civil rights 18. Id. 42. See ABA Formal Ethics Opinion 06-442 at 19. Id. *1 (Aug. 5, 2006). defense and subrogation. Mrs. Ah 20. See, e.g., Okla. Stat. Tit. 12, § 2502 (attor- 43. Id. at *3. Loy graduated with honors from ney-client privilege). 44. Id. at **2-3. 21. State ex rel. Protect. Health Servs. v. 45. Id. at **4-5. the OCU School of Law in 2012 Billings Fairchild Cntr., Inc., 2007 OK CIV APP 24, 46. See D.C. Bar Ethics Op. 341 (2007); see and currently serves as secretary ¶17, 158 P.3d 484, 489 (emphasis added); Okla. also Maryland State Bar Op. 2007-09 (2007). Stat. Tit.12, §3226(A)(1). 47. See Billings Fair Child, 2007 OK CIV APP of the OCU School of Law Alumni 22. Okla. Stat. Tit. 12, §3234(A)(1)(a). 24, ¶17, 158 P.3d at 489. Association Board of Directors. 23. Id. §3234(B)(1)(c). 48. See, e.g., NYCLA Ethics Op. 738; accord Mbilike M. Mwafulirwa is an 24. Id. §3234(B)(2)(e)(2). N.Y. State Bar Op. 749; AL State Bar Op. 2007- 25. Id. §3234(B)(2)(d). 02 (2007) (prohibiting mining of an adversary’s attorney at Brewster & DeAngelis. 26. Id. §3234(4)(d). inadvertently produced electronic metadata but His practice focuses on complex 27. Hall v. Goodwin, 1989 OK 88, ¶7, 775 P.2d acknowledging that permissive rules apply to 291, 293 (looking to federal decisions as a guide metadata properly requested and exchanged litigation, civil rights and appellate to construing Oklahoma Discovery Code). as part of discovery); A.Z. Bar Ethics Op. 07-03 law. He is a 2012 graduate of the 28. See, e.g., Williams, 230 F.R.D. at 656. (2007) (same). 29. The Advisory Committee Notes to Fed. 49. See D.C. Bar Ethics Op. 341; see also gen- TU College of Law. R. Civ. P. 34(b) (2006 Amendment) provide erally ABA Formal Op. 06-442 at **4-5. that the “amendment to Rule 34(b) permits the 50. See Rules of Prof’l Conduct, Rule 4.4, OK requesting party to designate the form or forms ST RPC Rule 4.4 (2016) (emphasis added). ENDNOTES in which it wants electronically stored information 51. See Rules of Prof’l Conduct, Rule 4.4, OK 1. See Alexandra G. Ah Loy, “The Attorney’s produced… Specification of the desired form ST RPC Rule 4.4, Comment [2] (2008). Ethical Duty to Maintain Technological or forms may facilitate the orderly, efficient, and 52. See Rules of Prof’l Conduct, Rule 4.4, OK Competence”, 89 O.B.J. 14, 15-17 (2018). cost-effective discovery of electronically stored ST RPC Rule 4.4, Comment [2] (2016). 2. Rules of Prof’l Conduct, Rule 1.1, OK ST information.” (emphasis added). 53. Id. RPC Rule 1.1 (2016). 30. See, e.g., State v. Louisiana Land & Expl. 54. Id. 3. See State ex rel. Okla. Bar Ass’n v. Oliver, Co., 2017-755 (La. Ct. App. Dec. 20, 2017). 55. See Okla. Stat. Tit. 12, §2502(E). 2016 OK 37, ¶¶3-8, 369 P.3d 1074 (issuing public 31. Williams v. Sprint/United Management censure to lawyer for failing to report his discipline Co., 230 F.R.D. at 652. by the Western District of Oklahoma Bankruptcy 32. Id. at 644. Court for repeated electronic filing violations). 33. Id. at 642-645. 4. See A. Ah Loy, “The Attorney’s Ethical 34. Id. Duty” 17, supra note 1 (citing NYCLA Ethics Op. 35. See Morgan Hill Concerned Parents Ass’n 738 (2008); see also AL State Bar Op. 2007-02 v. Cal. Dep’t of Edu., No. 2:11-cv-3471 KJM AC, (2007) (prohibiting mining of an adversary’s inad- 2017 WL 445722, at **4-5 (E.D. Cal. Feb. 2, 2017) vertently produced electronic metadata; AZ Bar (under F.R.C.P. 34(b) (1) (C) “the requester ‘may Ethics Op. 07-03 (2007)). specify the form or forms in which electronically 5. Fed. R. Civ. P. 34(b)(2)(E)(ii); 12 O.S. stored information is to be produced,’” respond- §3234(B)(2)(e)(2). ing party cannot choose the form of production); 6. See, e.g., Williams v. Sprint/United Mgmt. accord Dixon v. Experian Info. Sol., Inc., No. Co., 230 F.R.D. 640, 656 (D. Kan. 2005). 2:13-cv-227-PPS-PRC, 2014 WL 2881589, at 7. See, e.g., Housing Rights Ctr. v. Sterling, **3-5 (N.D. Ind. June 25, 2014); Anderson Living No. 03 Civ. 859, 2005 WL 3320739, at *3, 7 (C.D. Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514, Cal. March 2, 2005); Prof’l Ethics of the Fla. B., 526 (D.N.M.2014) (noting that “[i]t is only if the Op. 06-2 (2006); Garcia v. Berkshire Life Ins. Co. requesting party declines to specify a form that of Am., No. 04-cv-01619-LTB-BNB, 2007 WL the producing party is offered a choice between 3407376, at *5 (D. Colo. Nov. 13, 2007); Phoenix producing in the form in which it is ordinary Four, Inc. v. Strategic Resources Corp., No. 05 maintained — native format — or in a reasonably Civ. 4837 (HB), 2006 WL 1409413, at *5 (S.D.N.Y. useful form or forms”) (emphasis added); In re May 23, 2006); In re A&M Flo. Props. II, LLC, No. Porsche Cars N. Am., Inc., Plastic Coolant Prods. 09-15173 (AJG), 2010 WL 1418861, at *5 (Bankr. Litig., 279 F.R.D. 447, 449 n. 5 (S.D. Ohio 2012) S.D.N.Y. April 7, 2010); Delegates, 105A (May 7, (“If the requesting party does not specify a form, 2012); James v. Nat’l Fin. LLC, No. CV 8931-VCL, therefore, the producing party is within its right 2014 WL 6845560, at *12 (Del. Ch. Dec. 5, 2014). to produce the ESI in static image form (TIFF or 8. ABA Comm. on Ethics 20/20, Report to the PDF) with no metadata.”); Aguilar v. Imm. & Cust. House of Delegates, 105A (May 7, 2012). Enforce. Div. of U.S. Dep’t of Homeland Sec., 255 9. Id. Fed. R. Civ. P. F.R.D. 350, 355 (S.D.N.Y. 2008) (“If the requesting 10. Rules of Prof’l Conduct, Rule 1.1, OK ST party does not specify a form for producing ESI, RPC Rule 1.1 (2016). the responding “party must produce it in a form 11. Id. (emphasis added). or forms in which it is ordinarily maintained or in 12. See generally A. Ah Loy, “The Attorney’s a reasonably usable form or forms.”); F.D.I.CV. v. Ethical Duty” 15-17, supra note 1. Bowden, No. CIV 413-245, 2014 WL 2548137, at 13. Advisory Committee Comment to Fed. *11 (S.D. Ga. June 6, 2014) (same). R. Civ. P. 26(f) (2006 Amendment); Black’s Law 36. See, e.g., Kentucky Speedway, LLC v. Dictionary 1080 (9th ed. 2014); accord Sedona Nat’l Ass’n. of Stock Car Auto Racing, CIV.A. Glossary, 15 Sedona Conf. J. 305, 339 (2014). 05-138-WOB, 2006 WL 5097354, at *8 (E.D. Ky. 14. Advisory Committee Comment to Fed. R. Dec. 18, 2006). Civ. P. 26(f) (2006 Amendment). 37. Id.

THE OKLAHOMA BAR JOURNAL MAY 2019 | 27 Technology Do Attorneys Dream of Electronic Wills? By Martin Postic Jr. and David M. Postic

URS IS AN INCREASINGLY DIGITAL SOCIETY. In fact, you can live almost your Oentire life online. You can have a career, travel to faraway places, build and maintain relationships and generally transact most of your day-to-day business – all without leaving the comfort of your computer chair. These technological advancements have even trickled down to the often slow-to-adapt legal profession. Contracts are negotiated and executed online. Deeds and other conveyancing instruments are recorded online. Entire practice areas have emerged to manage digital assets, digital privacy, digital advertising and other innovations spawned by the internet of things.

So why do we still require time, however, states developed or in actual contemplation, fear wills to be typed on paper? Why statutory exceptions to these formal or peril of death at the time the can we not – with all the tech- procedures. For instance, many will was made.14 nological tools at our disposal – states allow handwritten (or holo- These exceptions are not minor create electronic wills? graphic) wills. In Oklahoma, a holo- deviations from testamentary for- graphic will must be signed, dated malities but rather are drastic aber- TESTAMENTARY and entirely written in the hand- rations that appear to work against FORMALITIES: RULES writing of the testator or testatrix.9 the fundamental purpose of those AND EXCEPTIONS It does not need to be witnessed or statutory requirements. Take a When proving a will, a probate notarized.10 The will merely needs nuncupative will for example: not court must ask two broad ques- to make “apparent that it was the only is it unwritten and unsigned tions of testamentary intent: Did intention of the deceased that the by the testator, it is essentially a the decedent intend to make a will, paper should stand for her last hearsay recollection of the testator’s and if so, what are its terms?1 Strict will and testament.”11 wishes. While this type of evidence statutory requirements – that the Oklahoma and several other may be admissible under eviden- will be in writing,2 signed3 and states also allow oral (or nuncu- tiary rules regarding unavailable attested4 – help a court determine pative) wills, albeit in extremely declarants,15 it lacks any assurance and effectuate the testator’s intent, limited circumstances.12 A nuncu- of testamentary capacity – the con- free from incapacity,5 duress, fraud6 pative will cannot make bequests dition precedent to executing any and undue influence.7 In short, with a cumulative value over testamentary document.16 Indeed, these formalities confront the issue $1,000 (the equivalent of about a person on the verge of death is of authenticity and thus primarily $25,000 today),13 must be proved by arguably less likely than a person serve an evidentiary purpose. two witnesses who heard the testa- in ordinary circumstances to have Traditionally, will formalities tor make his will, must be reduced testamentary capacity. Holographic were strictly observed and wills to writing within 30 days after it wills similarly offer no proof of tes- were regularly rejected by probate was spoken and the decedent must tamentary capacity and provide no courts for trivial mistakes.8 Over have been in military field service defense against undue influence

28 | MAY 2019 THE OKLAHOMA BAR JOURNAL or fraud, there being no witnesses by the testator or by an attorney, nuncupative wills). In an age when to watch the testator write and subscribed with an electronic sig- hard copies can be imperceptibly sign the will. nature and stored on a computer doctored and replaced and signa- If holographic and nuncupative hard drive. “Online” electronic tures copied and printed in perfect wills offer none of the assurances wills, on the other hand, involve a color, the same risks exist whether and protections supplied by third party such as a website, e.g., a document is on paper or in testamentary formalities, why are where a testator posts testamen- the cloud. Indeed, the Uniform they allowed? The reason is quite tary wishes on Facebook, intend- Electronic Transactions Act simple: the law recognizes certain ing for that to serve as his will. (UETA)19 recognizes the expedi- situations in which formalities are These third-party actors generally ency and reliability of technology impractical. Where an individual retain user information and can by allowing electronic records and does not have the time or financial provide evidence such as a time signatures in other circumstances. resources to visit an attorney and stamp documenting precisely “If a law requires a record to be in execute a formal, attested will, the when (and/or from where) a doc- writing, an electronic record sat- law allows him to write his own. ument was created. Lastly, “custo- isfies the law ... If a law requires a Where a member of the armed dial electronic wills” are where a signature, an electronic signature services is gravely injured in the “qualified custodian” stores and/ satisfies the law.”20 line of duty with no pen or paper or supervises the execution of a Importantly, however, the in sight, the law allows him to testator’s electronic will, subject UETA does not apply to “the cre- express his wishes verbally. to certain regulations.18 While ation and execution of wills, codi- Exceptions to will formalities this article makes no distinction cils, or testamentary trusts.”21 Even represent a practical adaptation of among them, characteristics of though the UETA was written in the law to the needs of society, and each type of electronic will should 1990 and enacted in Oklahoma in in an age when people generally be analyzed when considering a 2000, the exclusion of testamentary carry smartphones rather than pen legislative change. documents is puzzling. Oklahoma and paper, the needs of society If testamentary formalities are courts already accept and rely on dictate that we should revisit and concerned primarily with authen- electronic recordings, emails, text revise testamentary formalities to ticity of documents, then there is messages, video depositions and account for the rapid development no practical difference between video testimony of trial witnesses. and omnipotence of technology. traditional and electronic wills. Allowing electronic wills would Enter the “electronic will.” There are no inherent risks that, as not represent a radical change but The term “electronic will” can a rule, make electronically gener- rather a harmonizing of probate be used to refer to any one of ated, subscribed, attested and/or statutes with other areas of law. several kinds of documents.17 It stored documents any less authen- So, how can this be accomplished? could describe an “offline” elec- tic or reliable than documents pre- tronic will, which is a will typed pared and executed by traditional (or “handwritten” using a stylus) means (particularly holographic or

There are no inherent risks that, as a rule, make electronically generated, subscribed, attested and/or stored documents any less authentic or reliable than documents prepared and executed by traditional means (particularly holographic or nuncupative wills).

30 | MAY 2019 THE OKLAHOMA BAR JOURNAL A PRACTICAL SOLUTION How should a document be harmless error in holding that a FOR OKLAHOMA subscribed by the testator or document which existed only in There are two main ways attested by witnesses? There are electronic form was a valid last will Oklahoma statutes could be electronic, digital, biometric and and testament.26 In that case, prior amended to allow electronic wills. other means available, but which to committing suicide, the decedent First, the Legislature could amend are sufficient to ensure the authen- left a handwritten, undated and existing statutory provisions in ticity of the document? How unsigned note that stated: Title 84 to include (or enact separate should an electronic will be stored? statutes which apply only to) wills It can be stored on a hard drive, I am truly sorry about this … created, subscribed, attested and/ in the cloud or with a qualified My final note, my farewell is on or stored using electronic means. administrator. Which is more reli- my phone. The app should be Second, it could adopt some ver- able? The law should also account open. If not look on Evernote, sion of the Uniform Probate Code’s for holographic wills. If a testator “Last Note[.]”27 (UPC) “harmless error” doctrine. writes an electronic will on a pass- Under the first approach, the word-protected phone or computer, The note also provided infor- Legislature would be able to nar- should that have the same effect as mation to access the decedent’s rowly tailor formalities to ensure a handwritten will? What if a tes- Evernote account,28 in which was that electronic wills contain tator writes the will on Facebook? stored a typed document dictating sufficient indicia of reliability for a What if he writes it on an iPad how the decedent wished for his probate court to adequately effec- using a stylus? Considering the rate estate to be distributed after his tuate the testator’s intent. Nevada at which technology advances, a death.29 The court held that the is currently the only state to follow tailored statutory fix would likely decedent “clearly and unambigu- this approach;22 however, several need to be amended every few ously expressed his testamentary other states – including Arizona, years to address new technological intent,” and thus the electronic Florida, Indiana, New Hampshire threats or capabilities. note should constitute a valid last and Virginia – have all recently A better solution, therefore, will and testament.30 considered legislation to allow would be to adopt the UPC’s There is a dearth of case law electronic wills.23 Such proposals “harmless error” doctrine. The revealing how other states will have been met with varying levels harmless error doctrine, adopted apply the “harmless error” doc- of enthusiasm but none have yet by 11 states,24 allows a will not trine to electronic wills. However, been enacted. executed in compliance with adopting this standard and allow- Any statute allowing electronic statutory formalities to neverthe- ing courts to validate documents as wills should take into consider- less be admitted to probate if the wills, where appropriate, is a more ation, and effectively secure, the proponent can show, by clear and efficient solution than constantly purpose behind testamentary convincing evidence, that the testator amending statutory provisions to formalities. Yet the complexity and intended the noncompliant docu- address new technologies as they fluidity of technology makes this ment to be his will.25 Last July, the develop.31 Importantly, this effi- a difficult, if not impossible, task. Michigan Court of Appeals applied ciency does not come at the price

THE OKLAHOMA BAR JOURNAL MAY 2019 | 31 of authenticity. “By placing the David M. Postic is an estate 21. 12A O.S. §15-103(b)(1). burden of proof upon the propo- 22. Nev. Rev. Stat. §133.085; see also Nev. planning and probate attorney at Rev. Stat. §§133.086 and 133.320 (requiring nent of a defective instrument, Postic & Bates PC in Oklahoma that, to be self-proving, an electronic will must and by requiring the proponent to be stored by a custodian using “a system that City. He is a member of the Ruth protects electronic records from destruction, discharge that burden by clear and Bader Ginsburg American Inn alteration or unauthorized access and detects any convincing evidence (which courts change to an electronic record”). of Court and serves on the OBA 23. See Dan DeNicuolo, “The Future of at the trial and appellate levels Civil Procedure/Evidence Code Electronic Wills,” Bifocal, Vol. 38, No. 5, at 76-78. are urged to police with rigor), 24. See Robert H. Sitkoff & Jesse Dukeminier, Committee. He can be reached Wills, Trusts, and Estates 176 (10th ed. 2017). [harmless error] imposes proce- at [email protected]. 25. Unif. Probate Code §2-503 (amended dural standards appropriate to 2010) reads: “Although a document or writing added upon a document was not executed in the seriousness of the issue.”32 ENDNOTES compliance with Section 2-502, the document 1. John H. Langbein, “Substantial Compliance or writing is treated as if it had been executed in CONCLUSION with the Wills Act,” 88 Harv. L. Rev. 489, 491 (1975). compliance with that section if the proponent of 2. 84 O.S. §55. Oklahoma probate procedure the document or writing establishes by clear and Technological change is a also generally requires that the original be convincing evidence that the decedent intended constant. As society progresses admitted to probate. See 58 O.S. §24.1; but see the document or writing to constitute: O.S. §§81-84. (1) the decedent’s will, further into the 21st century, legal 3. 84 O.S. §55. (2) a partial or complete revocation of the will, practitioners are best situated (and 4. Id. (3) an addition to or an alteration of the will, or 5. See 84 O.S. §41 (testator must be of legal (4) a partial or complete revival of his [or her] some would even say obligated) to age and sound mind); R. Robert Huff, Oklahoma formerly revoked will or of a formerly revoked identify the problems and opportu- Probate Law and Practice, §5.1 3rd Ed. 1995 portion of the will.” (testator must have testamentary capacity). 26. In re Estate of Duane Francis Horton, Case nities caused by those changes and 6. See Johnson v. Johnson, 1954 OK 283, No. 339737, at 1 (Mich. App. Ct. July 17,2018). to craft innovative solutions that ¶¶1-4, 279 P.2d 928, 932 (Corn, J., concurring). 27. Id. 7. See In the Matter of the Estate of Carlson, 28. Evernote is a mobile application designed adapt laws to the changing needs of 2016 OK 6 ¶13, 367 P.3d 486 (citing 84 O.S. §151) for note taking, organizing tasks and archiving. society. Yet, somehow, estate plan- (“Of paramount importance in a probate proceeding 29. Id. at 1-2. is discerning and implementing a decedent’s 30. Id. at 5-8 (citing MCL 700.2503, ning remains essentially unchanged intent.”). Cf. Lon L. Fuller, “Consideration and Form,” Michigan’s “harmless error” rule). from a century ago. The time has 41 Colum. L. Rev. 799, 800 (1941). 31. See,e.g., Scott S. Boddery, “Electronic Wills: 8. Langbein, supra note 1, at 489. Drawing a Line in the Sand Against Their Validity,” come, then, to re-examine the rigid 9. 84 O.S. §54. 47 Real Prop. Tr. & Est. L.J. 197, 199 (2012). rules for testamentary documents 10. Id. 32. Unif. Prob. Code §2-503 cmt. (amended 11. Hooker v. Barton, 1955 OK 81, ¶10, 284 2010). See also id. (“Indeed … the dispensing and to acknowledge that the world P.2d 708. power actually prevents a great deal of has moved on. 12. See generally 58 O.S. §§91-93. unnecessary litigation” because it eliminates 13. 84 O.S. §46. disputes about technical lapses and limits the zone 14. See Huff, supra note 5, at §7.1. of dispute to the functional question of whether 15. 12 O.S. §2804(B)(2). the instrument correctly expresses the testator’s 16. See, e.g., In Re Estate of Gerard, 1995 intent.”) (internal quotation marks omitted). ABOUT THE AUTHORS OK 144 ¶12, 911 P.2d 266 (“To have testamentary Martin Postic Jr. is the president of capacity, a person must know in a general way Postic & Bates PC in Oklahoma City. the character and extent of his property and understand his relationship to the beneficiary of He is a member of the OBA Real his gift as well as his relationship to those who Property Law and Estate Planning ought to be in his mind, and he must understand the nature and effect of his act.” (internal Probate and Trust sections. His quotation marks omitted)). practice concentrates in the areas 17. See Note, “What is an Electronic Will?,” 131 Harv. L. Rev. 1715, 1790 (2018). of estate planning, probate and 18. Id at 1806-09. real property. He can be reached 19. Codified in Oklahoma Statutes at 12A O.S. §§15-101 et seq. at [email protected]. 20. 12A O.S. §15-107(c)-(d).

32 | MAY 2019 THE OKLAHOMA BAR JOURNAL

OBA Awards Make Time to Submit a Nomination By Kara I. Smith

HE TIME OF THE YEAR is leadership impacts our community, So, for this very reason, we have Tupon us to again take the time the people in your lives, you per- made the nomination process as to recognize deserving individ- sonally and reflect on the void that painless and the least time consum- uals and groups who serve our would exist without such commit- ing as possible. We encourage you community through their leader- ments to service and leadership. to reflect on this year’s list of awards ship, their service to the public I ask you to help the OBA and to take the time to nominate and their service to the legal Awards Committee find those someone, so we may have the profession. This is the real begin- deserving to be honored and those opportunity to say thank you. ning of the OBA Awards year, and who make us all want to do better. In addition, I solicit you to the real work of the OBA Awards It is understandable that despite encourage your colleagues and Committee starts now with publi- our appreciation and desire to friends to submit a nomination cizing the nomination process. acknowledge deserving individu- and share with them that their As you reflect on those deserv- als and groups, finding that time time and effort means so much ing to be recognized, I also ask you can just be a challenge. to this organization, and their to reflect on how such service and nomination could very well turn

NOMINATION RULES AND TIPS nn The deadline is 5 p.m. Monday, July 1, but get your nomination in EARLY! Nominations, complete with all supporting material, MUST be received by the deadline. Submissions or supporting material received after the deadline will not be considered.

nn Make sure the name of the person being nominated and the person (or organization) making the nomination is on the nomination.

nn If you think someone qualifies for awards in several categories, pick one award and only do one nomination. The OBA Awards Committee may consider the nominee for an award in a category other than one in which you nominate that person.

nn Submission options (pick one): 1) email [email protected] (you will receive a confirmation reply); 2) fax: 405-416-7089; 3) mail: OBA Awards Committee, P.O. Box 53036, Oklahoma City, OK 73152.

nn Visit www.okbar.org/awards for the nomination form if you want to use one (not required), history of previous winners and tips for writing nominations.

34 | MAY 2019 THE OKLAHOMA BAR JOURNAL out to be what an honoree needed Access to Justice Committee ABOUT THE AUTHOR to reinvigorate their passion for Chair Rod Ring said, “I don’t know Kara Smith is the chief assistant service and leadership. who nominated the committee attorney general in the Civil Rights Past president and OBA for the Golden Gavel Award last Enforcement Unit of the Office of Awards Committee member Joe year and can’t thank them enough. the Oklahoma Attorney General. Crosthwait said, “While most law- Committee members worked on She serves as Awards Committee yers contribute to the good of soci- several projects – giving their chairperson. ety and the profession, many are time to help Oklahoma meet the particularly conspicuous by their promise of justice for all regardless contributions. It is only appropri- of economic ability or location. ate that those persons be recog- Receiving the award reinforced for nized who have given selflessly of all committee members that our their time, talent and treasure for efforts are worthwhile, and I hope us all. Those who witness or ben- encouraged OBA members to learn efit from those contributions need more about access to justice.” to nominate them. Honoring those special people makes us all that much prouder to be lawyers.”

THE OKLAHOMA BAR JOURNAL MAY 2019 | 35 AWARDS OUTSTANDING COUNTY BAR ASSOCIATION AWARD – for meritorious efforts and activities 2018 Winners: Kay County Bar Association and Tulsa County Bar Association HICKS EPTON LAW DAY AWARD – for individuals or organizations for noteworthy Law Day activities 2018 Winners: Comanche County Bar Association and Creek County Bar Association GOLDEN GAVEL AWARD – for OBA committees and sections performing with a high degree of excellence 2018 Winner: OBA Access to Justice Committee LIBERTY BELL AWARD – for nonlawyers or lay organizations for promoting or publicizing matters regarding the legal system 2018 Winners: The Parent Child Center of Tulsa and Nathan Hedge, Oklahoma City OUTSTANDING YOUNG LAWYER AWARD – for a member of the OBA Young Lawyers Division for service to the profession 2018 Winner: Lane Neal, Oklahoma City EARL SNEED AWARD – for outstanding continuing legal education contributions 2018 Winner: Paul Brunton, Tulsa AWARD OF JUDICIAL EXCELLENCE – for excellence of character, job performance or achievement while a judge and service to the bench, bar and community 2018 Winner: Judge Ronald L. Kincannon, Boise City FERN HOLLAND COURAGEOUS LAWYER AWARD – to an OBA member who has courageously performed in a manner befitting the highest ideals of our profession 2018 Winner: Josh Lee, Vinita OUTSTANDING SERVICE TO THE PUBLIC AWARD – for significant community service by an OBA member or bar-related entity 2018 Winners: Allen Pease and Miss Chance, Broken Arrow and William C. “Bill” Kellough, Tulsa AWARD FOR OUTSTANDING PRO BONO SERVICE – by an OBA member or bar-related entity 2018 Winner: Sara Murphy Bondurant, Oklahoma City JOE STAMPER DISTINGUISHED SERVICE AWARD – to an OBA member for long-term service to the bar association or contributions to the legal profession 2018 Winner: M. Joe Crosthwait, Midwest City NEIL E. BOGAN PROFESSIONALISM AWARD – to an OBA member practicing 10 years or more who for conduct, honesty, integrity and courtesy best represents the highest standards of the legal profession 2018 Winner: R. Victor Kennemer, Wewoka (posthumous) JOHN E. SHIPP AWARD FOR ETHICS – to an OBA member who has truly exemplified the ethics of the legal profession either by 1) acting in accordance with the highest ethical standards in the face of pressure to do otherwise or 2) by serving as a role model for ethics to the other members of the profession 2018 Winner: Gerald L. Hilsher, Tulsa ALMA WILSON AWARD – for an OBA member who has made a significant contribution to improving the lives of Oklahoma children 2018 Winner: Sharon Wigdor Byers, Edmond TRAILBLAZER AWARD – to an OBA member or members who by their significant, unique visionary efforts have had a profound impact upon our profession and/or community and in doing so have blazed a trail for others to follow. Not awarded in 2018

36 | MAY 2019 THE OKLAHOMA BAR JOURNAL INDIVIDUALS FOR WHOM AWARDS ARE NAMED NEIL E. BOGAN – Neil Bogan, an attorney from Tulsa, died unexpectedly on May 5, 1990, while serving his term as president of the Oklahoma Bar Association. Mr. Bogan was known for his professional, courteous treatment of everyone he came into contact with and was also considered to uphold high standards of honesty and integrity in the legal profession. The OBA’s Professionalism Award is named for him as a permanent reminder of the example he set. HICKS EPTON – While working as a country lawyer in Wewoka, attorney Hicks Epton decided that lawyers should go out and educate the public about the law in general, and the rights and liberties provided under the law to American citizens. Through the efforts of Mr. Epton, who served as OBA president in 1953, and other bar members, the roots of Law Day were established. In 1961, the first of May became an annual special day of celebration nationwide designated by a joint resolution of Congress. The OBA’s Law Day Award recognizing outstanding Law Day activities is named in his honor. FERN HOLLAND – Fern Holland’s life was cut tragically short after just 33 years, but this young Tulsa attorney made an impact that will be remembered for years to come. Ms. Holland left private law practice to work as a human rights activist and to help bring democracy to Iraq. In 2004 she was working closely with Iraqi women on women’s issues when her vehicle was ambushed by Iraqi gunmen, and she was killed. The Courageous Lawyer Award is named as a tribute to her. MAURICE MERRILL – Dr. Maurice Merrill served as a professor at the University of Oklahoma College of Law from 1936 until his retirement in 1968. He was held in high regard by his colleagues, his former students and the bar for his nationally distinguished work as a writer, scholar and teacher. Many words have been used to describe Dr. Merrill over the years, including brilliant, wise, talented and dedicated. Named in his honor is the Golden Quill Award that is given to the author of the best written article published in the Oklahoma Bar Journal. The recipient is selected by the OBA Board of Editors. JOHN E. SHIPP – John E. Shipp, an attorney from Idabel, served as 1985 OBA president and became the executive director of the association in 1998. Unfortunately, his tenure was cut short when his life was tragically taken that year in a plane crash. Mr. Shipp was known for his integrity, professionalism and high ethical standards. He had served two terms on the OBA Professional Responsibility Commission, serving as chairman for one year, and served two years on the Professional Responsibility Tribunal, serving as chief-master. The OBA’s Award for Ethics bears his name. EARL SNEED – Earl Sneed served the University of Oklahoma College of Law as a distinguished teacher and dean. Mr. Sneed came to OU as a faculty member in 1945 and was praised for his enthusiastic teaching ability. When Mr. Sneed was appointed in 1950 to lead the law school as dean, he was just 37 years old and one of the youngest deans in the nation. After his retirement from academia in 1965, he played a major role in fundraising efforts for the law center. The OBA’s Continuing Legal Education Award is named in his honor. JOE STAMPER – Joe Stamper of Antlers retired in 2003 after 68 years of practicing law. He is credited with being a personal motivating force behind the creation of OUJI and the Oklahoma Civil Uniform Jury Instructions Committee. Mr. Stamper was also instrumental in creating the position of OBA general counsel to handle attor- ney discipline. He served on both the ABA and OBA Board of Governors and represented Oklahoma at the ABA House of Delegates for 17 years. His eloquent remarks were legendary, and he is credited with giving Oklahoma a voice and a face at the national level. The OBA’s Distinguished Service Award is named to honor him. ALMA WILSON – Alma Wilson was the first woman to be appointed as a justice to the Supreme Court of Oklahoma in 1982 and became its first female chief justice in 1995. She first practiced law in Pauls Valley, where she grew up. Her first judicial appointment was as special judge sitting in Garvin and McClain Counties, later district judge for Cleveland County and served for six years on the Court of Tax Review. She was known for her contributions to the educational needs of juveniles and children at risk, and she was a leader in proposing an alternative school project in Oklahoma City, which is now named the Alma Wilson SeeWorth Academy. The OBA’s Alma Wilson Award honors a bar member who has made a significant contribution to improving the lives of Oklahoma children.

THE OKLAHOMA BAR JOURNAL MAY 2019 | 37 Bar News Diversity Awards: Nominations Due July 31

Ada Lois Sipuel Fisher signs the Register of Attorneys in July 1952. The OBA Diversity Awards are named to honor Fisher, a noted leader in Oklahoma’s civil rights movement, who applied for admission to the OU College of Law to challenge the state’s segregation laws and to become a lawyer. Photo Credit: Courtesy of the Oklahoma Historical Society.

38 | MAY 2019 THE OKLAHOMA BAR JOURNAL HE DIVERSITY COMMITTEE and foster a more strategic decision-making, Tis now accepting nominations inclusive and equitable allocation of resources and for the Ada Lois Sipuel Fisher work environment; establishment of priorities. Diversity Awards to be presented nn Demonstrated continued in October. The three award corporate responsibility by Two more diversity awards will categories are members of the devoting resources for the be given to licensed attorneys and judiciary, licensed attorneys and improvement of the com- an additional award will be given organizations that have champi- munity at large; and to a member of the Oklahoma oned the cause of diversity. All nn Exhibited insightful judiciary who has met one or nominations must be received by leadership to confront and more of the following criteria: Wednesday, July 31. resolve inequities through For additional information, nn Demonstrated dedication please contact OBA Diversity to raising issues of diver- Committee Chair Telana sity and protecting civil McCullough at 405-267-0672 or visit NOMINATIONS AND and human rights; www.okbar.org/diversityawards. SUBMISSIONS nn Led the development of innovative or contemporary n SELECTION CRITERIA n Include name, address measures to fight discrimi- One or more diversity awards and contact number of nation and its effects; will be given to an organization the nominee. nn Fostered positive communi- n that has an office in the state of n Describe the nominee’s cation and actively pro- Oklahoma and has met one or contributions and moted inter-group relations more of the following criteria: accomplishments in among populations of the area of diversity. different backgrounds; n nn Developed and imple- n Identify the diversity nn Participated in a variety of mented an effective equal award category corporate and community opportunity program as (organization, licensed events that promoted mutual demonstrated by the orga- attorney or member of respect, acceptance, coop- nization’s commitment to the judiciary) in which eration, or tolerance and the recruitment, retention the nominee is being contributed to diversity and promotion of individ- nominated. awareness in the community n uals of underrepresented n The submission and workplace; and populations regardless of deadline is July 31. nn Reached out to a diverse n race, ethnic origin, gender, n Submissions should array of attorneys to under- religion, age, sexual ori- not exceed five pages stand firsthand the expe- entation, disability or any in length. riences of someone from a n other prohibited basis of n Submit nominations different background. discrimination; to diversityawards@ nn Promoted diversity okbar.org. initiatives that establish

THE OKLAHOMA BAR JOURNAL MAY 2019 | 39 MANY THANKS THE OBA LAW DAY COMMITTEE APPRECIATES THE CONTRIBUTIONS THAT HELPED MAKE THIS YEAR’S STATEWIDE LAW DAY ACTIVITIES AND COMMUNITY SERVICE SO SUCCESSFUL.

Ask A Lawyer TV show filming

Ask A Lawyer hotline Law Day contest winner ceremony

Chief Justice Noma Gurich The Oklahoman OBA President Chuck Chesnut Soup Soup Carry Out & Catering Law-Related Education Committee Scott’s Printing OETA Television Tulsa County Bar Association Oklahoma County Bar Association Volunteer lawyers statewide who Auxiliary staffed the hotline Oklahoma County Bar Association Young Lawyers Division

40 | MAY 2019 THE OKLAHOMA BAR JOURNAL THE SOVEREIGNTY SYMPOSIUM XXXII Treaties, Etc. Presented by the Oklahoma Supreme Court and the Sovereignty Symposium, Inc.

June 5 - 6, 2019 | Skirvin Hilton Hotel | Oklahoma City, Oklahoma

Wednesday Morning 4.0 CLE credits / 0 ethics included 7:30 - 4:30 Registration 8:00 - 8:30 Complimentary Continental Breakfast 10:30 - 10:45 Morning Coffee / Tea Break 12:00 - 1:15 Lunch on your own

8:30 - 11:45 PANEL A: ECONOMIC FUTURES | CRYSTAL ROOM CO-MODERATOR: JAMES COLLARD, Director of Planning and LESLIE OSBORN, Oklahoma State Labor Commissioner Economic Development, Citizen Potawatomi Nation JOHN BUDD, Chief Operating Officer for Oklahoma CO-MODERATOR: LISA BILLY, (Chickasaw), Oklahoma REGGIE WASSANA, (Cheyenne and Arapaho), Governor, Secretary of Native American Affairs Cheyenne and Arapaho Tribes of Oklahoma JOY HOFMEISTER, Oklahoma Superintendent of MATT PINNELL, Lieutenant Governor of Oklahoma Public Instruction KAREN BELL, British Consul General, Houston DANA MURPHY, Chair, Oklahoma Corporation Commission KAY RHOADS, (Sac and Fox), Chief of the Sac and Fox Nation TERRY NEESE, Institute for the Economic Empowerment MELOYDE BLANCETT, Oklahoma House of Representatives, of Women District 78

The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court. Artwork: Poteet Victory, The Night Guardian; Joseph French Photography

MAY 2019 | 41 8:30 - 11:45 PANEL B: SIGNS, SYMBOLS AND SOUNDS | GRAND BALLROOMS A-C Wednesday Afternoon (THIS PANEL CONTINUES FROM 3:00 - 6:00) 4 CLE credits / 0 ethics included

CO-MODERATOR: JAY SCAMBLER, Collector of Native 7:30 - 4:30 Registration American Art 2:45 - 3:00 Tea / Cookie Break for All Panels CO-MODERATOR: ERIC TIPPECONNIC, (Comanche), Artist 6:00 Mini Reception in Honor of the Flute Circle and Professor, California State University, Fullerton

WILLIAM DAVIS, (Muscogee (Creek)), Singer KELLY HANEY, (Seminole), Artist, Former Oklahoma State 1:10 CAMP CALL: GORDON YELLOWMAN, Senator, former Principal Chief of the Seminole Nation (Cheyenne), Peace Chief, Assistant Executive Director of JERI REDCORN, (Caddo/Potawatomi), Potter Education, Cheyenne and Arapaho Tribes VANESSA JENNINGS, (Kiowa/Gila River Pima), Artist LES BERRYHILL, (Yuchi/Muscogee), Artist 1:15 - 2:45 OPENING CEREMONY AND KEYNOTE HARVEY PRATT, (Cheyenne/Arapaho), Peace Chief, Artist, ADDRESS | GRAND BALLROOMS D-F Designer of the Smithsonian’s National Native American MASTER OF CEREMONIES: STEVEN TAYLOR, Justice, Veterans Memorial Oklahoma Supreme Court, Retired GORDON YELLOWMAN, (Cheyenne), Peace Chief, Assistant PRESENTATION OF FLAGS Executive Director of Education, Cheyenne and Arapaho Tribes HONOR GUARD: KIOWA BLACK LEGGINGS SOCIETY POTEET VICTORY, (Cherokee/Choctaw), Artist, 2019 SINGERS: SOUTHERN NATION Symposium Poster INVOCATION: KRIS LADUSAU, Reverend, Dharma Center of Oklahoma CHRIS MORRISS, Oklahoma State Protocol Officer INTRODUCTION OF KEYNOTE SPEAKER: KAREN BELL, GREGORY H. BIGLER, (Euchee), District Judge, Muskogee British Consul General, Houston (Creek) Nation SPEAKER: EMMA NICHOLSON, BARONESS NICHOLSON OF 8:30 - 11:45 PANEL C: SPIRITUAL TRADITIONS | WINTERBOURNE, House of Lords CENTENNIAL 1-2 WELCOME: NOMA GURICH, Chief Justice, Oklahoma Supreme Court MODERATOR: NOMA GURICH, Chief Justice, Oklahoma WELCOME: KEVIN STITT, (Cherokee), Governor of Oklahoma Supreme Court WELCOME: DAVID HOLT, (Osage), Mayor, Oklahoma City, Oklahoma KRIS LADUSAU, Reverend, Dharma Center of Oklahoma WELCOME: CHARLES CHESNUT, President, Oklahoma Bar Association ROBERT HAYES JR., Bishop, United Methodist Church, Retired PRESENTATION OF AWARDS: YVONNE KAUGER, Justice, ELIZABETH KERR, Special Judge, Oklahoma County Oklahoma Supreme Court LINDSAY ROBERTSON, Faculty Director, Center for the Study HONOR AND MEMORIAL SONGS: SOUTHERN NATION of American Indian Law and Policy, Professor, University CLOSING PRAYER: ROBERT HAYES JR., Bishop, United of Oklahoma Methodist Church, Retired GORDON YELLOWMAN, (Cheyenne), Peace Chief, Assistant Executive Director of Education, Cheyenne and Arapaho Tribes 3:00 - 6:00 PANEL A: INTERTWINED BRADFORD MORSE, Dean of Law, Thompson Rivers University INTERNATIONAL INDIGENOUS ECONOMIC ROBERT JOSEPH, (Maori), Senior Lecturer, Research Centre INTERESTS | CRYSTAL ROOM Director MIG (Law), The University of Waikato CO-MODERATOR: WAYNE GARNONS-WILLIAMS, Senior Lawyer and Principal Director, Garwill Law Professional 11:45 LUNCHEON HONORING TRIBAL LEADERS Corporation, Chair, International Intertribal Trade and AND FACULTY | VENETIAN ROOM Investment Organization CO-MODERATOR: RODGER RANDLE, Director, Center for Studies MASTER OF CEREMONIES: NOMA GURICH, Chief Justice, in Democracy and Culture and Professor, University of Oklahoma Oklahoma Supreme Court PRAYER: WILLIAM WANTLAND, (Seminole, Chickasaw and RICHARD HYDE, British Consul General Designate, Houston Choctaw), Episcopal Bishop of Eau Claire, Retired ROBERT JOSEPH, (Maori), Senior Lecturer, Research Centre GREETING: EMMA NICHOLSON, BARONESS NICHOLSON OF Director MIG (Law), The University of Waikato WINTERBOURNE, HOUSE OF LORDS BRADFORD MORSE, Dean of Law, Thompson Rivers University BINA SENGAR, Assistant Professor, Department of History and Ancient Indian Culture, School of Social Sciences, Dr. Babasaheb Ambedkar Marathwada University

42 | MAY 2019 THE OKLAHOMA BAR JOURNAL RICO BUCHLI, Honorary Consul, Switzerland ENRIQUE VILLAR-GAMBETTA, Honorary Consul, Peru Thursday Morning JAMES COLLARD, Director of Planning and Economic 4.0 CLE credits / 2 ethics included Development, Citizen Potawatomi Nation 7:30 - 4:30 Registration 3:00 - 6:00 PANEL B: SIGNS, SYMBOLS AND 8:00 - 8:30 Complimentary Continental Breakfast SOUNDS | GRAND BALLROOMS A-C 10:30 - 10:45 Morning Coffee / Tea Break CO-MODERATOR: JAY SCAMBLER, Collector of Native 12:00 - 1:15 Lunch on your own American Art CO-MODERATOR: ERIC TIPPECONNIC, (Comanche), Artist and Professor, California State University, Fullerton 8:30 - 12:00 PANEL A: JUVENILE LAW AND CHAD SMITH, (Cherokee), Attorney CHILDREN’S ISSUES | GRAND BALLROOMS A-B KENNETH JOHNSON, (Muscogee/Seminole), Contemporary CO-MODERATOR: DEBORAH BARNES, Vice Presiding Judge, Jewelry Designer and Metalsmith Oklahoma Court of Civil Appeals, Division Two JAMES PEPPER HENRY, (Kaw/Muscogee (Creek)), Director and Chief CO-MODERATOR: MIKE WARREN, Associate District Judge, Operating Officer, American Indian Cultural Center Foundation Harmon County, Oklahoma JIM VAN DEMAN, (Delaware), Artist and former Vice-Chief of the STEVE HAGER, Director of Litigation, Oklahoma Indian Delaware Nation Legal Services KELLY LEWIS, Talk Jive Radio RICHARD KIRBY, Associate District Judge, Oklahoma County THOMAS WARE, Talk Jive Radio ALAN WELCH, Special Judge, Oklahoma County JEROD IMPICHCHAACHAAHA’ TATE, (Chickasaw), Composer GREGORY RYAN, Special Judge, Oklahoma County TIMOTHY TATE NEVAQUAYA, (Comanche), Artist and Musician PHIL LUJAN, (Kiowa/Taos Pueblo), Judge of the Seminole and BRENT GREENWOOD, (Chickasaw/Ponca), Artist and Southern Citizen Potawatomi Nations Nation Singer JACK TROPE, Senior Director, Casey Family Programs 3:00 - 6:00 PANEL C: CRIMINAL LAW | DORIS FRANSEIN, District Judge, Tulsa County, Retired CENTENNIAL 1-2 8:30 - 12:00 BEYOND CONSERVATION: CO-MODERATOR: DANA KUEHN, (Choctaw), Vice-Presiding Judge, Oklahoma Court of Criminal Appeals PREPARING FOR THE FUTURE AND THE FOODS CO-MODERATOR: ARVO MIKKANEN, (Kiowa/Comanche) OF THE LAND | GRAND BALLROOMS D-F Assistant United States Attorney and Tribal Liaison, Western CO-MODERATOR: PATRICK WYRICK, District Judge, United District of Oklahoma States District Court for the Western District of Oklahoma TRENT SHORES, United States Attorney for the Northern CO-MODERATOR: JANIE HIPP, (Chickasaw), CEO, Native District of Oklahoma American Agriculture Fund COLLEEN SUCHE, Judge of the Manitoba Court of Queen’s Bench BLAKE JACKSON, (Choctaw), Policy Officer/Staff Attorney MIKE HUNTER, Attorney General of Oklahoma at Indigenous Food and Agriculture Initiative, University ROBERT RAVITZ, Chief Public Defender, Oklahoma County of Arkansas JOHN CANNON, Attorney The Cannon Law Firm BLAYNE ARTHUR, Secretary and Commissioner of Agriculture, STEVE MULLINS, Attorney, Lyle, Soule and Curlee Oklahoma CALLANDRA MCCOOL, (Citizen Potawatomi), Research Editor, American JOHN BERREY, Chairman, Quapaw Nation Indian Law Review, University of Oklahoma College of Law JERRY MCPEAK, (Muscogee (Creek)), Former Oklahoma State Legislator WEDNESDAY PROGRAMS WILL CONCLUDE JOHN HARGRAVE, Attorney WITH A FLUTE CIRCLE IN GRAND BALLROOM NATHAN HART, (Cheyenne), Executive Director, Department of A-C. PLEASE BRING YOUR FLUTE TO Business, Cheyenne and Arapaho Tribes PARTICIPATE IN THIS EVENT. VINCE LOGAN, (Osage), CFO/CIO, Native American Agriculture Fund 6:00 MINI RECEPTION IN HONOR OF THE FLUTE ANOLI BILLY, (Chickasaw), Representing the Voices of Next CIRCLE | HALLWAY OUTSIDE OF GRAND Generation Food Producers BALLROOMS A-C JULIE CUNNINGHAM, Executive Director, Oklahoma Water Resources Board

THE OKLAHOMA BAR JOURNAL MAY 2019 | 43 8:30 - 9:30 PANEL C: ETHICS | CENTENNIAL 1-3 ELIZABETH BROWN, (Cherokee), Associate District Judge, Adair County, Oklahoma MODERATOR: JOHN REIF, Justice, Oklahoma Supreme Court, Retired STEVEN BUCK, Executive Director, Oklahoma Office of Juvenile Affairs FOLLOWED BY A DISCUSSION OF THE CONCERNS OF STATE, JARI ASKINS, Administrative Director of the Courts FEDERAL AND TRIBAL JUDGES MODERATED BY JUSTICE REIF JOE DORMAN, Oklahoma Institute for Child Advocacy NIKKI BAKER LIMORE, (Cherokee), Executive Director, JOHN TAHSUDA, Principal Deputy Assistant Secretary of Indian Affairs Child Welfare, Cherokee Nation SUZANNE MITCHELL, Magistrate, United States District Court NORMAN RUSSELL, Associate District Judge, Kiowa County, Retired for the Western District of Oklahoma WILLIAM HETHERINGTON, Judge, Oklahoma Court of Civil Appeals, Retired 1:30 - 5:30 PANEL B: GAMING | GRAND RICHARD OGDEN, District Judge, Oklahoma County BALLROOMS D-F ALETIA HAYNES TIMMONS, (Cherokee), District Judge, CO-MODERATOR: NANCY GREEN, ESQ., (Choctaw), Green Oklahoma County Law Firm, P.C., Ada, Oklahoma CARLA PRATT, Dean, Washburn University School of Law CO-MODERATOR: MATTHEW MORGAN, (Chickasaw), Director GREGORY D. SMITH, Justice, Pawnee Nation Supreme Court of Gaming Affairs, Division of Commerce, Chickasaw Nation ELIZABETH BROWN, (Cherokee), Associate District Judge, ERNIE STEVENS, (Oneida), Chairman, National Indian Gaming Association Adair County JONODEV CHAUDHURI, (Muscogee (Creek)), Chairman, BRENDA PIPESTEM (Eastern Band of Cherokee Indians), National Indian Gaming Commission Associate Justice, Eastern Band of Cherokee Indian KATHRYN ISOM-CLAUSE, (Taos Pueblo) Vice Chair, National Supreme Court Indian Gaming Commission MIKE KISS, MIS Interim Director, Administrative Office of the Courts MIKE MCBRIDE, III, Crowe and Dunlevy 8:30 - 12:00 PANEL D: TREATIES | CRYSTAL ROOM GRAYDON LUTHEY, JR., Gable Gotwals WILLIAM NORMAN, JR., (Muscogee (Creek)), Hobbs, Straus, MODERATOR: BOB BLACKBURN, Executive Director, Dean and Walker Oklahoma Historical Society ELIZABETH HOMER, (Osage), Homer Law JAY HANNAH, Executive Vice-President of Financial Services, BancFirst SHEILA MORAGO, (Gila River Indian Community), Executive LINDSAY ROBERTSON, Faculty Director, Center for the Study of Director, Oklahoma Indian Gaming Association American Indian Law and Policy, Professor, University of Oklahoma KYLE DEAN, Associate Professor of Economics, Director of Center LEE LEVY, Former AFSC Commander for Native American & Urban Studies, Oklahoma City University ROBERT MILLER, Professor of Law, Arizona State University, TRACY BURRIS, (Chickasaw), Executive Director, Muscogee Sandra Day O›Connor College of Law (Creek), Nation Office of Public Gaming KELLY CHAVES, Professor of History and Director of Fine Arts, Oklahoma School of Science and Mathematics 1:30 - 5:30 PANEL C: ECONOMIC FUTURES | CRYSTAL ROOM CO-MODERATOR: JAMES COLLARD, Director of Planning and Thursday Afternoon Economic Development, Citizen Potawatomi Nation 4.5 CLE credits / 0 ethics included CO-MODERATOR: LISA BILLY, (Chickasaw), Oklahoma 3:30 - 3:45 Tea / Cookie Break for All Panels Secretary of Native American Affairs

BILL LANCE, Secretary of Commerce, Chickasaw Nation TIM GATZ, Executive Director, Oklahoma Department of 12:00 - 1:30 WORKING LUNCH FOR FEDERAL, Transportation and the Oklahoma Turnpike Authority STATE AND TRIBAL JUDICIARY | CENTENNIAL 1-3 SEAN KOUPLEN, Oklahoma Secretary of Commerce and Workforce Development FACILITATOR: DOUGLAS COMBS, (Muscogee (Creek)), CHRIS BENGE, Executive Director, Center for Rural and Tribal Justice, Oklahoma Supreme Court Health, Oklahoma State University TAMMYE GWIN, Senior Director of Business Development, 1:30 - 5:30 PANEL A: JUVENILE LAW | GRAND Choctaw Nation of Oklahoma BALLROOMS A-B DEREK OSBORN, Tulsa Field Office Director for Senator CO-MODERATOR: DEBORAH BARNES, Vice Presiding Judge, James Lankford Oklahoma Court of Civil Appeals, Division Two CO-MODERATOR: MIKE WARREN, Associate District Judge, This agenda is subject to revision. Harmon County, Oklahoma

NOTICE There will be a working lunch for State, Tribal and Federal Judges to be held at 12 noon on June 6, 2019.

A panel on the mutual concerns of State, Tribal and Federal Judges will be held beginning at 9:30 on June 6, 2019. The Sovereignty Symposium XXXII June 5 - 6, 2019 Skirvin Hilton Hotel Oklahoma City, Oklahoma

Name: Occupation:

Address:

City: State Zip Code

Billing Address (if different from above)

City: State Zip Code

Nametag should read:

Other:

Email address:

Telephone: Office Cell Fax

Tribal affiliation if applicable:

Bar Association Member: Bar # State

16.5 hours of CLE credit for lawyers will be awarded, including 2.0 hours of ethics. NOTE: Please be aware that each state has its own rules and regulations, including the definition of “CLE;” therefore, certain portions of the program may not receive credit in some states.

# of Persons Registration Fee Amount Enclosed

Both Days $275.00 ($300.00 if postmarked after May 21, 2019) June 6, 2019 only $175.00 ($200.00 if postmarked after May 21, 2019) Total Amount

We ask that you register online at www.thesovereigntysymposium.com. This site also provides hotel registration information and a detailed agenda. For hotel registration please contact the Skirvin-Hilton Hotel at 1-405-272-3040. If you wish to register by paper, please mail this form to:

THE SOVEREIGNTY SYMPOSIUM, INC. The Oklahoma Judicial Center, Suite 1 2100 North Lincoln Boulevard Oklahoma City, Oklahoma 73105-4914

Presented By THE OKLAHOMA SUPREME COURT and THE SOVEREIGNTY SYMPOSIUM

MAY 2019 | 45 Board of Bar Examiners New Attorneys Admitted to the OBA

OARD OF BAR EXAMINERS CHAIRPERSON Thomas M. Wright announces that 81 applicants who took the BOklahoma Bar Examination on Feb. 26-27, were admitted to the Oklahoma Bar Association on Tuesday, April 16, or by proxy at a later date. Oklahoma Supreme Court Chief Justice Noma Gurich administered the Oath of Attorney to the candidates at a swearing-in ceremony at the Oklahoma Judicial Center in Oklahoma City. A total of 123 appli- cants took the examination. Other members of the Oklahoma Board of Bar Examiners are Vice Chairperson Juan Garcia, Clinton; Robert Black, Oklahoma City; Monte Brown, McAlester; Tommy R. Dyer Jr., Jay; Brant Elmore, Norman; Bryan Morris, Ada; Loretta F. Radford, Tulsa; and Roger Rinehart, El Reno.

THE NEW ADMITTEES ARE: Misbauddin Ahmed Allison Nicole Biscoe Jason Lee Cotton Jessica Christine Allen Logan Ashton Blackburn Emilee Noelle Crowther Joshua Wayne Anderson Jason Craig Bollinger David Anthony Davis Wriley Kenneth Anderson Jessica Lyn Brown Robert Evan Davis Aisosa Arhunmwunde Zackary Austin Brown Joseph Lee DeGiusti Erika Louiez Artinger Darrell Leon Buck Anthony Bruce Dickenson Jeffrey Douglas Bacon Jr. Farrah Yong Burgess Anja du Toit Scott Thomas Beyea Candace Lee Carter Lauren Ashley Fournier Rodney Gavin Fouts Jose Valentin Gonzalez Paige Nicole Green Joseph Albert Griffin Logan Andrew Harrison Rilee Dean Harrison Lindsay Nicole Hearn Javier Giovanny Hernandez Christopher James Hollingsworth John Marshall Homra James Derick Hopper Brian Edward Jackson Francisco Jasso Jr. Brayden Micah Jennings Leslie Lanay Jones Ronald Cecil Jones II Thomas Richard Jones III Zachariah Ahmad Kanaa Carrie L Kincade Tamara Webster Kinyanjui Mary Estelle Leavell Nathan Alan Lobaugh

46 | MAY 2019 THE OKLAHOMA BAR JOURNAL Brent Allen Smith Morgan Taylor Lee Smith Brandt Steven Sterling Keaton Anthony Michael Taylor Spencer Byron Torbett James Arthur Trummell Natalie Anne Tupta Carson Quay Turner Miroslava Ivanova Vezirska-Gabrovski Jose Alberto Villarreal Gentry Carlin Wahlmeier Bailey Malone Warren Nicholas Weeks Nicholas Charles Williams Emily Kathleen Wilson Andrew Lawrence Junk Tiffany Amber Lueck Colton Loy Richardson Winningham Kelby Winson Luna Valerie Marie Salem Charles Martin Woner Daniel Patrick McClure Jr. Jacob Marland Sargent Dakota James Wrinkle Margaret Spence Moon Christine Suzanne Schem John Paul Yeager Taylor Anthony Moult Colton Grant Scott Jazmin Guadalupe Zaragoza Ashley Swindell Nix Hope Elizabeth Andrew Edward Polchinski Sheppard-Mahaffey Matthew Carson Porter Paul Alan Sims

THE OKLAHOMA BAR JOURNAL MAY 2019 | 47 Legislative Report Update on Reading Day Bills as End of Session Nears By Angela Ailles Bahm

APPY SPRINGTIME from Other bills that have become Hthe Legislative Monitoring law and were discussed by the Committee! The end of the session governor’s General Counsel Mark is slated to be May 31, aka Sine Die Burget, deal with agency reform (which means in Latin “without and accountability. SB 456, SB 457, day,” referring to the fact there HB 2480, HB 2479 and HB 2483 will be no further meetings or have all been signed into law and hearings). By the time you see this impact the ODOT, ODOC, OHCA, article, the last deadline will have Department of Mental Health passed for the third reading in the and Substance Abuse Services opposite house, and legislation and the Office of Juvenile Affairs. will be working its way through Generally, the governor will the house of origin in hopes to choose the agency administrator make it to the governor’s desk. and some members of the board. (Every time I write one of these The committee will be plan- articles, I have the tune from the ning a Legislative Debrief Day, TV show Schoolhouse Rock in my like we had in August last year. head “I’m Just a Bill.”) I anticipate it will be held again At the bottom of the article is in August before the new laws the “original” list from Reading in a database called the National become law, which is usually Day with only those bills that are Missing and Unidentified Persons Nov. 1. As always if you have any still “live rounds” for this session. System (NamUs). This bill contin- suggestions on how to improve Others have not made it out of ues to advance. the Legislative Monitoring their house or out of committee. Chief Justice Noma Gurich Committee, please let me know. Remember that because the legis- addressed HB 2366 which would lative session is bicameral, all bills realign the Supreme Court and the UPDATED READING filed this year will be available to be Court of Criminal Appeals from DAY BILLS revived during next year’s session. the current nine districts to five Family Law Bills Our guest speakers during Day districts to match the current con- HB 1276 Title 43 Child custody; at the Capitol discussed several gressional districts. The bill effec- provides court shall provide equal bills, some of which have been tively creates five districts from shared parenting time signed into law already by the which Supreme Court justices HB 2270 Title 10 Relates to uni- governor. Attorney General Mike would be selected and the other form parentage act and limitations Hunter discussed “Francine’s four would be at-large positions. of paternity actions Law” HB 2640. It is named after Judge Thad Balkman discussed HB 1274 Title 10A Defines and Francine Frost, a woman who went HB 2612, the “Unity Bill” which addresses situational neglect missing in Tulsa over 30 years ago. addresses many issues associated HB 2604 Title 10 A Pertains to It would require all state agencies with medical marijuana. It was perpetrator registry to include unidentified remains signed by the governor in March.

48 | MAY 2019 THE OKLAHOMA BAR JOURNAL HB 2189 Title 12 New law allows SB 737 Title 18 Adds real estate SB 441 Pertains to length of for alternative methods of provid- appraisers to Professional Entity Act school year ing testimony in criminal cases SB 204 Title 18 Includes a HB 2091 Title 22 Increases “natural person” as a “charitable Indian/Real Estate Law number of members on Domestic organization” HB 1916 Title 60 New law pro- Violence Fatality Review Board hibiting transfers of certain items HB 1061 Title 63 New law relating Government Law of tangible personal property to to Child Abuse Prevention Act and HB 1391 Title 74 Pertaining to fin- public trust providing of information related to gerprinting and background checks HB 1220 Title 16 False affidavit termination of parental rights HB 1921 Title 62 New shall result in award of costs and SB 833 Title 63 Modifies infor- law; Oklahomans Virtually attorneys fees mation to be gathered and incorpo- Everywhere Act HB 1223 Title 16 Pertains to rated into the annual report of the SB 179 Title 62 Provides for claims and purchases of mineral Office of Child Abuse Prevention training employees as financial interests HB 1022 Title 10 New law managers HB 2121 Title 60 Provides creating the Task Force on Trauma- SB 198 Title 74 New law; for notice relating to Uniform Informed Care guidelines for social media Unclaimed Property Act HB 1222 Title 16 Provides for effec- SB 915 Title 16 Relates to remote tive conveyances by married grantors Civil Procedure/Courts online notarial acts SB 742 Title 63 Pertains to child HB 1092 Provides for collection of Also provided an update to abuse prevention and school districts attorney’s fees in small claims cases the Stigler Act amendments in the HB 1332 Title 47 Allows ATVs lawsuit, Carpenter v. Murphy Criminal Law to be driven on certain municipal HB 1019 Oklahoma criminal dis- and county roadways Marijuana Law covery code – access to discovery HB 1100 Modifies certain HB 1030 Title 37A New law; alco- Environmental/Natural Resources prohibited acts; relates to holic beverages; allows certain felons SB 702 Title 27A New law Uniform Controlled Dangerous to possess an employee’s license requiring DEQ and Water Substances Act HB 1145 Pertains to Resources Board to share informa- expungements tion in certain circumstances HB 2019 New law broadens HB 1403 Title 82 New law per- ABOUT THE AUTHOR judicial discretion for pregnant taining to “treasured stream” Ms. Ailles Bahm is the managing women or caregivers HB 2474 Title 82 Disclosure attorney of State Farm’s in-house and website of applications to office and also serves as the Estate Planning/Banking/ Oklahoma Water Resources Board Legislative Monitoring Committee General Business chairperson. She can be contacted SB 732 Title 14A UCC. Changes Schools through Communities or angela. to dollar amounts from Reference HB 1065 Modifies definition of [email protected]. Base Index threatening behavior

THE OKLAHOMA BAR JOURNAL MAY 2019 | 49 From the Executive Director I Dare You to Not Go to the Solo & Small Firm Conference By John Morris Williams

DARE YOU TO NOT GO to the Firm Conference has relevancy to This year’s conference offers ISolo & Small Firm Conference – every lawyer, regardless of firm size. high quality and diverse pro- unless you are prepared and Much of the new management soft- gramming that will serve every willing to become a better lawyer. ware is scalable and e-discovery and Oklahoma lawyer regardless of Once upon a time, the concept of a artificial intelligence software are firm size. You should not let your conference for solo and small firm not firm-size dependent in the least. firm size discourage your atten- practitioners on issues unique to At times, the Solo & Small Firm dance. The only thing that should them was born. The Oklahoma Bar Conference has provided training stop you from attending is an abso- Association was not the first state and introduction to practice point- lute desire to NOT grow or learn. to seize upon this programming ers that may exceed anything being Otherwise, I dare you to attend opportunity; however, it was very readily available to larger firm and not have a good time and learn early in the game. Today, several practitioners. The multiplication a few things. I double dare you to states use this platform to reach out of “boutique” firms doing highly show up if you are from a larger to its solo and small firm members. challenging and intellectual work firm and not learn something that As it was at the time of its origin, has also transformed solo and helps your practice and your firm. and still true today, most Oklahoma small firm practice. One would be Details and online registration are lawyers are solo or small firm highly mistaken to think that solo at www.okbar.org/solo. practitioners. The concept of enter- and small firm practitioners are not ing solo practice immediately upon handling major litigation or doing passing the bar has continued to be very complex legal work. an upward trend. So, today there My observations are a transition are more lawyers who never had is occurring with the use of technol- the benefit of practicing with a more ogy that even surpasses the advent experienced lawyer upon entering of word processing. Regardless To contact Executive Director practice. This phenomena at times of firm size, one lawyer and a lot Williams, email him at johnw@ makes even relatively basic practice of technology can produce and okbar.org. tips extremely valuable. assimilate lots of data. Additionally, The Solo & Small Firm compartmentalization in very large Conference, June 20-22 at River firms can have the effect of being in Spirit Casino Resort in Tulsa, is so a small firm as far as the size of the much more than getting some good group you work with every day. forms or tips on family or criminal Since the first Solo & Small Firm law. The conference has always been Conference in 1998, the world and broad and featured programming the practice of law have greatly for even the most seasoned lawyers. changed. What has not changed Given the ever-increasing is very high-quality program- utilization of technology and new ming and a warm, family friendly practice aids, today’s Solo & Small atmosphere at this conference.

50 | MAY 2019 THE OKLAHOMA BAR JOURNAL River Spirit Casino Resort | Tulsa www.okbar.org/solo Early registration discounts end June 6!

MORE CLE OPTIONS ADDED OBA legal research member benefit Fastcase is coming to the conference to teach educational sessions and answer questions from OBA members. Learn about the new features of Fastcase 7, which will be launched to all OBA members this summer.

ADDITIONAL SPONSORS HAVE SIGNED UP CO-PRODUCER BRONZE Oklahoma Attorneys Mutual Beyond Square One Insurance Company CosmoLex Docket Hound SILVER Lawclerk Legal Corporation 3000 Insurance Group Law Pay OBA Estate Planning, Probate and Trust Section OBA Disability Law Section OBA Family Law Section Oklahoma City University School of Law OBA General Practice/Solo and Small Firm Section Polston Tax Resolution & Accounting OBA Law Office Management and Technology Section Purview Life Professional Reporters Smart Start, Inc. Spotlight Branding Smith.ai Virtual Receptionists Tabs3 Software

THE OKLAHOMA BAR JOURNAL 2019 2019 CRIMINAL DEFENSE INSTITUTE (FULL AGENDA AVAILABLE at www.ocdlaoklahoma.com) Patrick A. Williams Thursday, June 27, 2019

- Lessons From Stan Lee – World Building for Our Clients La Mer Kyle Griffiths Still She Rises Criminal Defense Institute - Dealing With Stress, Secondary PTSD & Depression Tom Cummings Oklahoma City & TRACK 1: TRACK 2: TRACK 3: OCDLA Annual Meeting BASIC LITIGATION REPRESENTING ADVANCED PRACTICE - Voir Dire WOMEN DEFENDANTS - Appellate Concerns - Search & Seiure - Pregnancy in Custody - Obections Revival June 27 & 28, 2019 - Cross Eamination - Juvenile & Neglect Cases - Art of the Oral Argument River Spirit Casino Resort Tulsa, OK Friday, June 28, 2019 - Cross Eam of the DRE Witness John Hunsucker, Oklahoma City - Cellbrite Technology & Social Media Robert Aguerro, Murrieta, CA - Case Law & Statute Update James Hankins, Oklahoma City

Small Firm / Solo Practice Afternoon Section: - Branding / Building Digital Value / Mareting 2019 / Insurance & Investments for Small Firms - Basics of Divorce & Child Custody

Registration Fees (Awards Dinner Included) -OCDLA Member $ 250.00 -Non Member $ 300.00 -R e 20th $ 275.00 (OCDLA Member) $ 325.00 (Non Member) e Oklahoma Criminal Defense Lawyers Association, Oklahoma Indigent Defense System, -Printed Materials $ 40.00 Oklahoma County and Tulsa County Public Defender Oces proudly present the Patrick A. -Dinner Guest $ 30.00 Williams Criminal Defense Institute & OCDLA Annual Meeting is year the CDI will be TOTAL: held at the River Spirit Casino Resort in Tulsa, OK. Name: Bar #: Address: City/State/Zip: Phone: Email: the Institute, along with dinner and a happy hour. Awards to be given are: Credit Card Info: # Exp. Date MCLE Credit e Clarence Darrow A Award & Lord omas Erskine Award, Jack D. Pointer Criminal Defense Advocacy Award • OK - 15 Hours Possible, includes 1 hour ethics

Cuto date for nominations is May 31, 2019 @ 5:00pm. LOCATION th For OCDLA information, awards criteria & past award winners, has a room rate of $99.00 June 12 . For room reservations please call 1-888-748-3731 or online @ www.riverspirittulsa.com. If calling, reference the Oklahoma Criminal Defense Lawyers please visit www.ocdlaoklahoma.com Association or visit OCDLA website for direct link.

Please send nominations to: Visit OCLAOLAHOMA to register or mail this ad with payment to: Mail: OCDLA OCDLA, PO BOX 222, OKC, OK 3101 PO Bo 222 Email: bdpfor-the-defense.com Fax: 405-212-5024 OKC, OK 3101-222 FOR MORE INFO: Email: -- or call the OCDLA: 405-212-5024 2019 2019 CRIMINAL DEFENSE INSTITUTE (FULL AGENDA AVAILABLE at www.ocdlaoklahoma.com) Patrick A. Williams Thursday, June 27, 2019

- Lessons From Stan Lee – World Building for Our Clients La Mer Kyle Griffiths Still She Rises Criminal Defense Institute - Dealing With Stress, Secondary PTSD & Depression Tom Cummings Oklahoma City & TRACK 1: TRACK 2: TRACK 3: OCDLA Annual Meeting BASIC LITIGATION REPRESENTING ADVANCED PRACTICE - Voir Dire WOMEN DEFENDANTS - Appellate Concerns - Search & Seiure - Pregnancy in Custody - Obections Revival June 27 & 28, 2019 - Cross Eamination - Juvenile & Neglect Cases - Art of the Oral Argument River Spirit Casino Resort Tulsa, OK Friday, June 28, 2019 - Cross Eam of the DRE Witness John Hunsucker, Oklahoma City - Cellbrite Technology & Social Media Robert Aguerro, Murrieta, CA - Case Law & Statute Update James Hankins, Oklahoma City

Small Firm / Solo Practice Afternoon Section: - Branding / Building Digital Value / Mareting 2019 / Insurance & Investments for Small Firms - Basics of Divorce & Child Custody

Registration Fees (Awards Dinner Included) -OCDLA Member $ 250.00 -Non Member $ 300.00 -R e 20th $ 275.00 (OCDLA Member) $ 325.00 (Non Member) e Oklahoma Criminal Defense Lawyers Association, Oklahoma Indigent Defense System, -Printed Materials $ 40.00 Oklahoma County and Tulsa County Public Defender Oces proudly present the Patrick A. -Dinner Guest $ 30.00 Williams Criminal Defense Institute & OCDLA Annual Meeting is year the CDI will be TOTAL: held at the River Spirit Casino Resort in Tulsa, OK. Name: Bar #: Address: City/State/Zip: Phone: Email: the Institute, along with dinner and a happy hour. Awards to be given are: Credit Card Info: # Exp. Date MCLE Credit e Clarence Darrow A Award & Lord omas Erskine Award, Jack D. Pointer Criminal Defense Advocacy Award • OK - 15 Hours Possible, includes 1 hour ethics

Cuto date for nominations is May 31, 2019 @ 5:00pm. LOCATION th For OCDLA information, awards criteria & past award winners, has a room rate of $99.00 June 12 . For room reservations please call 1-888-748-3731 or online @ www.riverspirittulsa.com. If calling, reference the Oklahoma Criminal Defense Lawyers please visit www.ocdlaoklahoma.com Association or visit OCDLA website for direct link.

Please send nominations to: Visit OCLAOLAHOMA to register or mail this ad with payment to: Mail: OCDLA OCDLA, PO BOX 222, OKC, OK 3101 PO Bo 222 Email: bdpfor-the-defense.com Fax: 405-212-5024 OKC, OK 3101-222 FOR MORE INFO: Email: -- or call the OCDLA: 405-212-5024 Law Practice Tips Technology and the Legal Profession By Jim Calloway

UCH WAS BEEN WRITTEN material. “I refuse to use email” On the other hand, I know a Mabout the antipathy of the was the blunt response. No prob- lot of lawyers, in Oklahoma and legal profession toward adop- lem. We still know how to use across the country, who are very tion of modern technology. “The envelopes and stamps. sophisticated users of technol- relationship between lawyers and I wonder if in the early days of ogy. Some of the smartest legal technology is complicated” begins telephone services some lawyers technologists I know are lawyers. a column in Forbes magazine refused to use that “instrument Sometimes an Oklahoma lawyer titled “Lawyers and Technology: of the devil.” I can recall that fax will contact me with a technology Frenemies or Collaborators?” by machines were quickly adopted by question and also share a new Mark A. Cohen, noting many law firms because of the savings technology tip with me. lawyers “curious ambivalence” in time and money. Local courier toward adopting technology.1 That services were not cheap and over- TECHNOLOGY COMPETENCY observation is no surprise to those night delivery to other states paled Since almost all of us are in the field of legal technology. in comparison to faxing, but let’s going to be using tech-based Recently, a lawyer contacted face it, faxing was easy. tools for the rest of our careers, I me because a client had restored Speaking of faxing, as I was thought this technology-themed a smartphone to the factory set- preparing to write this column, I issue of the Oklahoma Bar Journal tings that contained some very noted a tweet from an Oklahoma would be a good opportunity to important text messages. There City lawyer, which is reproduced share some skill-building tools were other complications. I gave below with permission. for lawyers. him the name of an expert. He later sent us both an email that included a good-natured tirade about his hatred of smartphones. “I call them ‘instruments of the devil.’ …Being a Luddite could mean that I will remain the only sane person living in a world of cellphone zombies.” Every month or so, some lawyer introduces themself to me with the phrase, “I’m a dinosaur.” Other lawyers often enjoy pulling out an ancient flip phone, sometimes patched with tape, to show me their phone of choice. OBA Practice Management Advisor Julie Bays had been on the job just a few months when she offered to email a lawyer some

54 | MAY 2019 THE OKLAHOMA BAR JOURNAL Oklahoma is one of the majority opinion that you can share with nn If you have a challenge or of states where a comment about others, including those who don’t need assistance with Fastcase, technology competency has been have access to Fastcase. Printing an reach out to Fastcase sup- added to the Rules of Professional opinion to PDF or Word in Fastcase port. Call 866-773-2782 (select Conduct noting that a lawyer yields a very readable result. Fastcase option 2) Monday-Friday should keep abreast of changes also has other cutting-edge features 9 a.m.-9 p.m. CST or email in the law and “the benefits and that you may not appreciate without [email protected]. risks associated with relevant having some Fastcase training. Right nn We have expanded the CLE technology.”2 now, the default view is Fastcase 6, offerings at our Solo & Small So, what are some basic technol- but you can toggle to use Fastcase 7 Firm Conference to include ogy concepts that most Oklahoma right now by clicking on the little Fastcase training. A Fastcase lawyers should understand and FC button in the upper right-hand team member will also be skills most lawyers should have? corner, next to the “Welcome” and available for individual I will note that some of these your name. Fastcase 7 will become consultations during the are dependent on your practice the default this summer. conference. areas. A lawyer who only does estate planning may not have to Improving Your Fastcase Competency DIGITAL INFORMATION understand much about Facebook, nn If you have never tried SECURITY but a lawyer handling contested Fastcase before, give it a try. There are many things written family law matters certainly does. You can log into your OBA- on digital information security. Here are a few suggested topics provided account on your We have copies of the book Locked for some summertime reading and MyOKBar profile page. Down: Practical Information Security skill building. nn Visit www.fastcase.com/ for Lawyers, Second Edition by support/ to view on-demand David G. Ries, John W. Simek and FASTCASE video tutorials, but also Sharon D. Nelson in our OBA-MAP Oklahoma lawyers receive to register for Fastcase’s Lending Library. Many lawyers Fastcase as a free OBA member online CLE webinars that have practices focused in this grow- benefit. I am surprised some will help you appreciate ing area as risk management ques- Oklahoma lawyers still haven’t the differences of this tions include much more than just used this powerful tool yet. Even if service. At a minimum, the technology. More lawyers will you choose to use another commer- you will want to register be focusing on this in the future. cial research service, you should for “Introduction to Legal However, every lawyer should know how to use Fastcase if you Research” on Fastcase. understand the basics of protecting ever need a backup or if an opinion nn After your training, create personal and client information. you need is not included in your a public link to an opinion There are many threats today, subscription database. There are and also print an opinion but for lawyers the biggest potential a couple of things Fastcase does to PDF or Word. There is a disasters are losing the information better than most other services, greater chance to retain the we need to operate, a compromise like creating a public link to an skill if you try it yourself. of confidential or privileged client

THE OKLAHOMA BAR JOURNAL MAY 2019 | 55 Technology has changed the way we process words, and more changes are ahead. From my observations, this is an area where we will see significant changes sooner rather than later as more technology-assisted document drafting tools enter the marketplace.

information or having a financial have done it differently in nn Password managers and loss to an online criminal. Sadly, the past, the best plan today two-factor authentication today a critical part of data secu- is to have Windows Update remain top security steps, rity is planning for a data breach install updates automati- even though they will or corruption of data. Lawyers in cally.4 Many of these updates impact your daily work- Oklahoma have been attacked by are security updates. flow. See my recent column ransomware that encrypted their nn Protect your data. Backup “Two-Factor Authentication information. Next time it could be your data properly and is Critical Today.”8 your firm. Paying the ramson is know how to restore from a often no longer an option as law backup. Draft a written office DOCUMENT PREPARATION enforcement will move quickly to procedure on how both Lawyers create documents. block the criminal’s payment ave- tasks are accomplished. A Sometimes these are short, routine nue. Restoring from a recent backup properly vetted, secure cloud documents and sometimes they are is often your best response. storage is generally consid- complex, heavily formatted docu- ered safer than anything ments. Technology has changed the Improving Your Digital you can do on your own. way we process words, and more Security Competency Read (or re-read) my recent changes are ahead. From my obser- nn Mention to your staff every columns “Eliminating the vations, this is an area where we few months about how Terror of Lost Client Files”5 will see significant changes sooner scammers are improving and “Cloud Computing for rather than later as more technol- their schemes. Make sure Lawyers – 2019.”6 ogy-assisted document drafting they understand the danger nn Install a data security suite. tools enter the marketplace. of clicking on email links or PC Magazine’s “The Best Recently, a lawyer asked me attachments from an unfa- Security Suites for 2019” “Am I really going to have to give miliar source. Share reading outlines several options.7 If up WordPerfect?” The majority of materials you come across the security suite that was our profession (and all of the busi- like “Twelve Most Common included with your com- ness world) has long ago moved Phishing Email Subject puter purchase has not been from WordPerfect, Multimate and Lines”3 from John Simek’s renewed, you should con- many other word processing tools Your IT Consultant blog. sider paying for a security to Microsoft Word. Office 365 nn Keep your software and suite as a high-priority item. adoption will make it more diffi- operating system patched cult to resist the change. and updated. Although I

56 | MAY 2019 THE OKLAHOMA BAR JOURNAL However, I still know of one lots of memory installed in CONCLUSION very tech-savvy law firm of signifi- the computer as Dragon is a Many lawyers have a challenging cant size that still uses WordPerfect memory hog. relationship with their business because they have developed nn Setting aside the time to technology, but everyone is coping many macros and templates that improve your Word skills with technology-generated change automate their document pro- is a challenge for a busy in many aspects of their lives. duction. That’s different from lawyer, but finding training You don’t want to be a dinosaur. someone hanging onto a copy of tools is not. Basic online We know what happened to WordPerfect that is years out of searches will provide lots them,13 but you are not a dinosaur. date just because they hate change. of free training videos, Lawyers are resourceful, intelli- Changing from WordPerfect like “Word Tutorial: Learn gent and know how to research. to Word is not a simple transition. Word in 30 Minutes” by Sali You just need to invest the time it Document formatting is done dif- Kaceli.10 Deborah Savadra’s takes to improve some aspect of ferently. The difference between the Legal Office Guru11 is a great your technology skills. There will formatting scheme of WordPerfect resource with both free short be a payback in time saving and a with its formatting code hidden tutorials and affordable lowered level of frustration. throughout the document that can online courses. Our 2019 be made visible with “reveal codes” Solo & Small Firm Conference is much different from Word’s for- features Kenton Brice, direc- Mr. Calloway is OBA Management matting applied through styles. tor of technology innova- Assistance Program director. Need My personal opinion is most tion at the OU College of a quick answer to a tech problem lawyers using WordPerfect should Law, giving a deep dive or help solving a management consider learning to use Microsoft into Microsoft Word. dilemma? Contact him at 405-416- Word, with a few standing out nn Know what you don’t know. 7008, 800-522-8060, jimc@okbar. as exceptions like the firm noted If you are working on a org. It’s a free member benefit! above. But, to each his or her legal project with a dead- own and some of the improve- line, that is not the time ENDNOTES ments noted below apply to all to build word processing 1. Mark A. Cohen, “Lawyers and Technology: Frenemies or Collaborators?,” word processing tools. skills but try to make a note Forbes, Jan. 16, 2018, www.forbes.com/sites/ when you know there’s a markcohen1/2018/01/15/lawyers-and-technology- frenemies-or-collaborators/#2b0d9c5222f1. Improving Your Word better way to do something, 2. Oklahoma Rules of Professional Conduct, Processing Competency so you can go back later Rule 1.1, Comment 6. 3. youritconsultant.senseient.com/2019/03/ nn It is a poor practice to use and take a look at it. twelve-most-common-phishing-email-subject- the documents you used the nn Everyone in the law office lines.html. 4. Windows Update: FAQ, support.microsoft. last time you handled a mat- doesn’t have to be a Word com/en-us/help/12373/windows-update-faq; ter like this as a form for a expert, but someone in the Install Office Updates, support.office.com/en-us/ article/install-office-updates-2ab296f3-7f03- new matter. Invest the time office should be. See my col- 43a2-8e50-46de917611c5?ui=en-US&rs=en- in organizing your forms umn in Law Practice Magazine US&ad=US. 12 5. 90 Oklahoma Bar Journal 44 (February so you always begin with “Your Document Czar.” 2019). an appropriate “gold stan- nn Start with a simple proj- 6. 90 Oklahoma Bar Journal 56 (January 2019), www.okbar.org/map/articles/ dard form” with all possible ect that benefits everyone. obj9001calloway/. provisions. It is much easier Saving a form document as 7. www.pcmag.com/roundup/254982/the- best-security-suites. to delete unneeded material a Word template means you 8. 90 Oklahoma Bar Journal 66 (March 2019). from a form than to add will not accidentally over- 9. Law Practice Magazine, May/June additional clauses. See my write a form when using 2017, page 72. dashboard.mazsystems.com/ webreader/49127?page=74. column in ABA Law Practice it. Build a simple template 10. www.youtube.com/watch?v=h30gwD0misA. Magazine “Implementing the for your “soft letterhead” 11. legalofficeguru.com. 12. Law Practice Magazine, July/August 9 Gold Standard.” so everyone can open the 2015 page 74. dashboard.mazsystems.com/ nn If your typing skills are not template and have a blank webreader/30731?page=76. 13. “The Day the Dinosaurs Died,” The New developed, it is time to give document with all of the Yorker, April 9, 2019, www.newyorker.com/ speech recognition prod- letterhead information magazine/2019/04/08/the-day-the-dinosaurs-died. ucts like Nuance Dragon already included. Professional Individual a try. Make sure you have

THE OKLAHOMA BAR JOURNAL MAY 2019 | 57 Board of Governors Actions Meeting Summaries

The Oklahoma Bar Association Board REPORT OF THE Association monthly meeting. of Governors met Monday, March 11, PAST PRESIDENT Governor Pringle reported at the Oklahoma Bar Center in Past President Hays reported he attended the Oklahoma Oklahoma City. she attended the OBA CLE Task County Bar Association Briefcase Force meeting and OBA Family Committee meeting, Oklahoma REPORT OF THE PRESIDENT Law Section monthly meeting. City Rotary Club meetings and President Chesnut reported he board meeting for Rainbow Fleet attended the Ottawa County Bar BOARD MEMBER REPORTS Inc. Governor Williams reported Association monthly meeting and Governor Beese reported he attended the OBA CLE Task Annual Meeting planning meet- he attended the OBA CLE Task Force meeting and started work on ing. He also wrote the president’s Force meeting and the Muskogee drafting a resolution to increase message for the April bar journal. County Bar Association meeting. the mandatory CLE requirement Governor DeClerck reported he of 12 hours (including one hour REPORT OF THE communicated with the Disaster of ethics) to 15 hours (including VICE PRESIDENT Assistance Committee chair to 1 hours of ethics and three hours Vice President Neal reported confirm his appointment as liaison of professionalism). He also he attended the OBA Law Schools and with the Communications researched graffiti removal from Committee visit to the OU College Committee chair regarding the the Tulsa County Bar Association/ of Law. board’s discussion concerning Tulsa County Bar Foundation updating the OBA brochures. offices and made recommen- REPORT OF THE He also discussed with Woods dations. He prepared and pre- PRESIDENT-ELECT County Bar Association members sented an environmental update President-Elect Shields reported a joint fundraising event with the for the Oklahoma Municipal she attended the CLE Task Force Garfield County Bar Association. League’s/Oklahoma Municipal meeting and signing of the Law Day Governor Fields reported he Utility Providers’ 2019 Water/ directive by Chief Justice Gurich. attended the Pittsburg County Bar Environmental Summit. Association meeting. Governor REPORT OF THE Hermanson reported he attended REPORT OF THE YOUNG EXECUTIVE DIRECTOR the OBA Law Day Committee LAWYERS DIVISION Executive Director Williams meeting and legislative breakfast Governor Nowakowski reported he met with a possible with his local senator and rep- reported the YLD board assem- vendor regarding the bar center’s resentative. He had discussions bled bar exam survival kits irrigation system and attended the with Kay County Bar Association instead of holding its regular investiture of new OCU School of members about the upcoming meeting. The kits were handed out Law dean, staff directors meet- board meeting in Ponca City to those taking the exam in late ing, monthly staff celebration, and spent many hours review- February. She also attended the Annual Meeting planning meet- ing and discussing legislative CLE Task Force meeting. ing and National Association issues. Governor Hicks reported of Bar Executives Nominating he attended the Tulsa County Bar BOARD LIAISON REPORTS Commission meetings. Foundation planning meeting. Governor Hutter said the Governor Oliver, unable to attend Bench and Bar Committee has the meeting, reported via email filmed the Spanish version of he attended the CLE Task Force its VPO video. He reported on meeting and Payne County Bar behalf of the Solo & Small Firm

58 | MAY 2019 THE OKLAHOMA BAR JOURNAL Conference Planning Committee said the Legislative Monitoring gun legislation, abortion, criminal that an article with all the confer- Committee will hold Day at the justice reform and Supreme Court ence details was published in the Capitol March 12, and he encour- redistricting. Mr. Taylor also pro- March Oklahoma Bar Journal mag- aged board members to participate. vided updates on other subject azine. Governor Beese said the areas. Legal Internship Committee has REPORT OF THE two issues regarding background GENERAL COUNSEL check that are moving forward. General Counsel Hendryx The Oklahoma Bar Association Board Vice President Neal said the Law reported a written report of PRC of Governors met for a special meeting Schools Committee visited the actions and OBA disciplinary mat- Monday, April 1, at the Oklahoma OU College of Law, and he shared ters from Jan. 11 – Feb. 15, was sub- Bar Center in Oklahoma City. details about the events that took mitted to the board for its review. place at the law school. Committee EXECUTIVE SESSION members will visit the TU College OBA AWARD The board voted to go into of Law next. Executive Director RECOMMENDATIONS executive session, met in session Williams was asked the purpose Awards Committee Chair and voted to come out of session. of the committee, which he said is Kara Smith said the committee to do a goodwill tour and provide recommends no changes in the HIRING OF an opportunity for students to awards. She said two suggestions OUTSIDE COUNSEL meet bar members. for new awards were received The board voted when Governor Hermanson said the and discussed by the committee, Executive Director Williams is Law Day Committee’s work on the but action is not recommended served in the lawsuit naming him TV show segments is progressing. this year. She said information in his official capacity, Executive The committee would like to add about the proposed awards will Director Williams and President a female host to the TV show and be added to committee minutes Chesnut are authorized to inter- is researching possibilities. They and given more consideration view and select outside counsel, are seeking a volunteer to coordi- next year. The board approved the including giving consideration to nate the legal questions emailed committee’s recommendation. the Oklahoma attorney general, in for Ask A Lawyer Day, and last subject to ratification by the Board year’s project leader will be asked LEGISLATIVE of Governors. if she would do it again. Contest SESSION REPORT entries have been judged, and first Legislative Liaison Clay Taylor NEXT MEETING place winners and their teachers said over a third of members The Board of Governors met for have been notified; awards for elected to the Legislature are new a regular meeting in April. A sum- all winners are being prepared. this year, so Day at the Capitol will mary of those actions will be pub- He said first-place winners will be an opportunity to meet them. lished in the Oklahoma Bar Journal be invited to a ceremony April 2 He briefed board members on the once the minutes are approved. hosted by Chief Justice Gurich. The legislative leaders and said he has The next board meeting will be committee chair and vice chair identified another legislator who Friday, May 17, at the Oklahoma briefed the committee on their is an OBA member, Sen. Mary Bar Center in Oklahoma City. meeting with the chief justice, at Boren of Norman, who has not which she signed the Law Day practiced. He predicted major top- Directive (encouraging courthouses ics during this legislative session to host events). Governor Pringle will be the budget, court system,

THE OKLAHOMA BAR JOURNAL MAY 2019 | 59 Bar Foundation News Scholarship Recipient Highlight

OKLAHOMA BAR FOUNDATION FELLOWS SCHOLARSHIP

What are your short-term and long-term goals? My goal is to serve vulnerable populations to ensure that every person has access to justice no matter what their means and cir- cumstances. I enjoy working with clients on individual problems that improve the circumstances of their life. I hope to work for a nonprofit providing legal services to low-income clients.

What made you decide to attend law school? I decided to attend law school after an internship with the Oklahoma County Public Defender’s Office in the Juvenile Division. I worked on deprived cases, and I was inspired by the attorneys there who had so many flexible skills to help their young clients. They could speak and play with the children in a loving, trauma-informed way and then turn around and be a strong, intelligent advocate in the courtroom.

What historical figure inspires you and why? Gandhi because he changed the world with nonviolence.

What is the most important thing you have learned in law school S. Grace Williams or undergrad? To get anywhere worth going, you just need to be kind and disciplined. Hometown: Bethany Law School: OCU School of Law Graduation May 2019 Date: It’s more about What field of connecting with law are you clients than a studying: specific area of law Southern Nazarene Undergraduate: University Undergrad Sociology with a Major: minor in Spanish Graduation 2015 Date:

60 | MAY 2019 THE OKLAHOMA BAR JOURNAL

Young Lawyers Division Activities Welcome New Lawyers By Brandi Nowakowski

ERE WE ARE, nearly half The YLD helped to celebrate Together OKC was canceled – but Hway through the year. It is the admission of this newest we’re working to reschedule it. hard to believe just how quickly batch of Oklahoma attorneys by Rebuilding Together OKC is a it goes. Throughout this year, the hosting a welcome reception for nonprofit organization dedicated Young Lawyers Division has been the new admittees, their families to rebuilding lives and neighbor- actively participating in bar and and friends after each swearing-in hoods, making homes safe, warm community events and activities. ceremony. The YLD takes pride in and dry. They bring volunteers Recently, I had the incredible participating in this long-standing together to improve the homes honor of helping welcome our new tradition. Later that day, the YLD and lives of low-income, elderly colleagues as they were sworn in hosted happy hours at Fassler Hall homeowners in the Oklahoma before the Oklahoma Supreme in both Oklahoma City and Tulsa City metro area. Rebuilding Court. I think we can each remem- where practicing attorneys could Together OKC will provide a ber our own swearing-in. It is such meet, greet and toast to our great opportunity for members a momentous occasion, a pivotal newest colleagues. to get their hands dirty to serve time in our lives, the culmination the community in a very real and of so many years of hard work. I SERVICE PROJECT tangible way. Look for infor- am so proud for these new mem- POSTPONED mation about the event on our bers of the bar, and I look forward Due to weather, our service Facebook page, www.facebook. to their contribution to the profes- project after the April board com/OBAYLD. sion and their communities. meeting with Rebuilding YLD MIDYEAR MEETING Finally, the YLD is looking forward to the YLD Midyear Meeting that takes place during the Solo & Small Firm Conference in June. As I’ve stated before, this is a great opportunity to meet and socialize with lawyers from across the state, get some great CLE and have a good time. I will once again encourage all lawyers, but espe- cially young lawyers, to attend. Don’t miss out! Register now at www.okbar.org/solo.

Ms. Nowakowski practices in Shawnee and serves as the YLD chairperson. She may be contacted From left YLD member Melanie Dittrich, YLD Chair Brandi Nowakowski and YLD at [email protected]. Keep District 5 Director Brittany Byers welcome new lawyers at receptions following the up with the YLD at www.facebook. admission ceremonies. com/yld.

THE OKLAHOMA BAR JOURNAL MAY 2019 | 63 For Your Information

JUSTICE RICHARD DARBY TO SERVE BAR JOURNAL TAKES AS VICE CHIEF JUSTICE SUMMER BREAK Justice Richard Darby was elected The to serve as the vice chief justice of the Oklahoma Bar Oklahoma Supreme Court effective April 15. Journal theme Since January, the position of vice chief issues are justice was held by Justice Patrick Wyrick. He taking a short resigned from the Supreme Court to accept break. The the position of U.S. District Judge for the next issue, devoted to access to jus- Western District of Oklahoma. tice, will be published in August. Justice Darby of Altus served as district judge for District 3 for 23 years. You’ll still receive electronic issues Prior to serving as district judge, he served as special judge and associate containing court material twice district judge for Jackson County, both for four years. a month in June and July. Have a Gov. Fallin appointed Justice Darby to the Oklahoma Supreme Court on safe and happy summer! April 4, 2018, to fill the unexpired term of now retired Justice Joseph M. Watt. Justice Darby received his J.D. from the OU College of Law and is mar- ried to Dr. Dana Darby, head of school at Altus Christian Academy. OBA MEMBER RESIGNATIONS The following members have resigned as members of the associ- STEVE BARGHOLS RECEIVES ation and notice is hereby given of THE PETER BRADFORD such resignation: DISTINGUISHED ACHIEVEMENT AWARD Kymala Beth Carrier Steve Barghols received the Peter OBA No. 17745 Bradford Distinguished Achievement 12100 Maple Ridge R Award in Alternative Dispute Resolution. Oklahoma City, OK 73120 The award honors the late Peter B. Bradford and is presented to a mem- Neilson David Lea ber of the OBA practicing in the field OBA No. 31621 of alternative dispute resolution who 305A Prospect St. OBA ADR Section Chair Cliff Magee achieves the standards personified and past chair Larry Lipe present Cuba, MO 65453-1974 Steve Barghols with the Peter Bradford by Peter Bradford. Award, which is displayed permanently Mr. Barghols has conducted over Robert B. Mills in the Oklahoma Bar Center. 3,500 mediations as well as arbitra- OBA No. 6239 tions in his more than 40 years of 6400 Oak Heritage service. He has served as advisor and mentor with countless attorneys Edmond, OK 73025-2782 wishing to be involved in the ADR processes. He is active in both the Oklahoma and Oklahoma County bar associa- tions having received the Joe Stamper Distinguished Service Award and the ASPIRING WRITERS Neil Bogan Professionalism Award. He is past Trustee of the Oklahoma Bar TAKE NOTE Foundation and past president of the Oklahoma County Bar Association. We want to feature your work on “The Back Page.” Submit arti- cles related to the practice of law, IMPORTANT UPCOMING DATES or send us something humorous, Don’t forget the Oklahoma Bar Center will be closed Monday, May 27, transforming or intriguing. Poetry and Thursday, July 4, in observance of Memorial Day and Independence is an option too. Send submis- Day. Remember to register and join us for the 2019 Solo & Small Firm sions of about 500 words to OBA Conference in Tulsa June 20-22, and be sure to docket the OBA Annual Communications Director Carol Meeting Nov. 6-8 in Oklahoma City. Manning, [email protected].

64 | MAY 2019 THE OKLAHOMA BAR JOURNAL

Bench and Bar Briefs

ON THE MOVE

Roger Dodd, Shane Henry and practice with an emphasis on Tracy L. McCreight and Benton T. Allyson Dow have formed Dodd & insurance defense, complex civil Wheatley have joined Duane Henry, a law firm focused on litigation and employment dis- Morris LLP’s Austin office as trial work. Their trial work will be crimination. Ms. Newman’s prac- partners in the firm’s Trial Practice in all areas of practice and in all tice will focus on civil defense Group. Meredith Mills Gregston Oklahoma counties, as well as all with a broad scope of experience has also joined the firm’s Trial federal courts and other states. from commercial litigation and Practice Group as an associate in insurance defense to product the Austin office. Ms. McCreight Michael J. McMillin, Vijay defect and trusts. focuses her practice on represent- Madduri and Bryson J. Williams ing owners in construction defect have been named partners to Lee Pugh co-founded JPR & matters and contract disputes. Mr. the firm Munson & McMillin. Associates LLC, a professional Wheatley focuses his practice on Additionally, Ryan W. Schaller investigations firm staffed by construction law matters and han- has joined the firm as an associate. recently retired FBI agents. JPR & dles administrative matters related Mr. Schaller will be the practice Associates LLC provides pro- to the construction and design leader for the firm’s Real Estate fessional investigative, litigation industry, as well as environment Practice Section with a focus on support and fraud examination and commercial litigation. Ms. all matters related to real estate, services to Oklahoma City attor- Gregston practices in the area of including surface title opinions. neys and companies. litigation and has experience with employment litigation and general Lindsey Albers and Rebecca Sarah B. Edwards and Chris R. commercial litigation. Newman have joined the firm Kelly joined Hartzog Conger Rhodes, Hieronymus, Jones, Cason. Ms. Edwards practices Tucker & Gable PLLC. Ms. corporate and commercial law. Mr. Albers’ practice centers on civil Kelly’s practice focuses on health defense litigation and appellate law and health care clients.

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

THE OKLAHOMA BAR JOURNAL MAY 2019 | 67 KUDOS

Rachel Blue was honored with national and international security Thomas M. Askew obtained a the 2019 Fern Holland Award by topics. The OCU School of Law General Player Agent Certification the TU College of Law. The award held its annual Awards Dinner and will represent major league is given annually to a Tulsa-area Saturday, April 6. Elaine Turner baseball athletes nationwide. He attorney who embodies the spirit received the Community and is one of 1,200 members registered of Fern Holland and advocates for Public Service Award, Monica with the Major League Baseball human rights or the empower- Ybarra received the Outstanding Players Association. ment of women. Young Alumna Award, Sandra Mitchell received the Melvin C. Hall was presented the Rex Hodges was honored with Distinguished Alumni Award and Opio Toure Champion of Justice the ABA Military Pro Bono Project Justice James Winchester received Award at the Oklahoma Association Outstanding Services Award for the Marian P. Opala Lifetime of Black Lawyers Annual his extraordinary pro bono ser- Achievement in Law Award. Scholarship and Awards Dinner. vices in 2019 through the ABA Retired Oklahoma Supreme The award is presented annually Military Pro Bono Project. Court Justice Steven W. Taylor has to a person or entity who exhibits been appointed to the Oklahoma integrity and an adherence to the Meagen Burrows has been cer- State Regents for Higher Education. highest principals and traditions of tified as an HR professional The Oklahoma State Regents for the legal profession, in addition to (SHRM-CP). SHRM-CP certi- Higher Education is a constitu- superior professional competence fication is an HR certification tional body that oversees the state’s and extraordinary professional offered by the Society for Human higher education system. accomplishments which benefit the Resources Management. nation, state and local community.

M. Joe Crosthwait Jr. was invited to attend the 66th National Security Forum at Maxwell Air Force Base in Montgomery, Alabama. The forum provides distinguished, hand-selected civilians with an opportunity to engage in open and candid discussions with senior military and civilian leaders on

AT THE PODIUM

Paul R. Foster presented “Dynamic Interactive Question and Answer,” a panel of banking regulators from the Federal Reserve, FDIC, OCC and Oklahoma State Banking Department at the Community Bankers Association of Oklahoma’s Winter Leadership Conference in Coronado, California.

Marty Ludlum spoke to students at Chien Hsin University in Zhongli, Taiwan, on international trade.

68 | MAY 2019 THE OKLAHOMA BAR JOURNAL

In Memoriam

lan W. Agee of Pauls Valley full-time, he attended the OCU ohn Patrick “Pat” Cremin of Adied Oct. 21, 2018. He was School of Law and received his JTulsa died Feb. 6. He was born born Jan. 9, 1934, in Oklahoma J.D. in 2014. He loved all animals, Nov. 18, 1944. He graduated from City. He was a Pauls Valley fly fishing, working on classic TU with a B.A. in journalism in graduate and continued his British sports cars and music of all 1966 and received his J.D. from education at OU. After gradua- kinds. Memorial donations may be the TU College of Law in 1973. tion, he served his country in the made to Together We Rise or the He began his legal career at Hall, United States Air Force where Bella Foundation. Estill, Hardwick, Gable, Golden he was commissioned at the and Nelson PC where he remained rank of captain. He graduated ill W. Burgess Jr. of Lawton in practice until his death. He from the OU College of Law and Bdied Feb. 8. He was born loved Tulsa and was proud to quickly became a partner with June 1, 1956. He graduated from serve the community. He served R. B. Garvin Law Firm in Pauls Cameron University and earned his on the City of Tulsa Human Rights Valley, where he practiced until J.D. from the OU College of Law. Commission, as the representative his final days. He was a mem- He and his brother were partners of District 11 for the Greater Tulsa ber of the Pauls Valley Elks, the in the law firm of Burgess and Council and was on the City- First Christian Church, Rotary Hightower. He was active in many County Jail Advisory Commission. and Pauls Valley Quarter Back business organizations including Memorial donations may be made Club. Memorial donations may be serving as chairman of Leadership to Holy Family School or TU. made to the Oklahoma Medical Oklahoma, Oklahoma Business Research foundation at omrf.org. Roundtable and Lawton Chamber orris Anthony Galloway of of Commerce. He was inducted MOklahoma City died March 7. ex Dwain Brooks of Oklahoma into the Oklahoma Hall of Fame He was born Dec. 15, 1945, in RCity died March 29. He was in 2008 and was named Corporate Kansas City, Missouri. He gradu- born Feb. 2, 1937, in Blanchard, Entrepreneur of the Year by the U.S. ated from the OU College of Law and he graduated from Blanchard Association for Small Business and in 1973. Upon graduating, he was High School in 1955. He was a Entrepreneurship. Memorial dona- a manager of a C.R. Anthony store veteran of the U.S. Army and tions may be made to the Cameron in Stroud. He worked at various served in Okinawa from 1960- Foundation or OU Foundation. banks in Oklahoma, and the last 1962. He received his BBA in 10 years of his life he practiced finance from OU in 1965, an LL.B. ichard E. Comfort of Broken criminal law in El Reno. He was from OU in 1967 and his J.D. from RArrow died March 11. He was a member of Crown Heights the OU College of Law in 1970. born Aug. 17, 1937, in El Paso, Texas. Christian Church and served as His legal career began in 1967 as He received his J.D. from the TU an elder there for several years. an associate attorney with Elliott, College of law in 1970 and served Memorial donations may be made Woodard and Ralston. In 1968, on the bench in Tulsa and Pawnee to Free to Live or Crown Heights he served as a staff attorney for counties from 1973-1981. After leav- Christian Church. Maryland Casualty Co. and in ing the bench in 1981, he practiced 1974, he entered private practice law in Tulsa with several firms hristopher Ryan Hobza of and continued until his death. including Hall Estill and Comfort, COwasso died Feb. 11. He was Lipe & Green, and finally as a solo born March 20, 1973, in Texarkana, avid Colin Buckles of Norman practitioner until he retired in 2009. Texas. He graduated from Idabel Ddied March 12. He was born Memorial donations may be made High School in 1991 and contin- Nov. 16, 1980, in Dayton, Ohio. He to the Alzheimer’s Association at ued his education at OSU where graduated from Centerville High www.alz.org. he earned his bachelor’s degree in School in 1998 and from OU with a philosophy. In 1999, he received bachelor’s degree in aviation man- his J.D. from the TU College of agement. He loved flying and was Law. He spent most of his work- a gifted pilot. Later, while working ing life as an attorney and was

70 | MAY 2019 THE OKLAHOMA BAR JOURNAL associate general counsel with of many organizations including the Army Air Corps. He was in Hire Right in Tulsa. He was a Sigma Kappa and McDermott the 15th Air Force stationed in faithful member of First Church Road Church of Christ. She will southern Italy. After the war, he in Owasso and enjoyed all types be remembered by her family attended OU where he received of music and attending concerts. and friends for her happy and his LL.B. in 1950. He began his Memorial donations may be made vibrant personality. law career in private practice in to Next Generation Ministries, c/o Edmond in 1951. He then went on First Church, 10100 North Garnett had Doyle Upton of to serve as Grady County attorney Road, Owasso 74055. COklahoma City died March 18. and assistant attorney from 1953- He was born Feb. 2, 1976, in 1961, attorney and chief counsel reg Maddux of Tulsa died Ardmore. He graduated from to the Oklahoma Department of GMarch 25. He was born Tishomingo High School in Highways from 1962-1971 and trial Nov. 14, 1956. He attended 1994 and from Southeastern attorney for OG&E from 1972-1982 Central High School and OSU Oklahoma State University in before returning to private prac- and received his J.D. from the TU 1999. He received his J.D. from tice. Memorial donations may be College of Law in 1983. Memorial the University of Dayton School made to Breakfast on Boulevard, donations may be made to the of Law in 2005. He spent his First Christian Church, P.O. Box American Heart Association. years working in the oil field and 3547, Edmond 73083. practicing law in Tishomingo. illiam L. Peterson Jr. of He loved his family dearly and obert Wheeler of Oklahoma WKansas City died March 5. enjoyed every minute he got to RCity died March 29. He was He was born Nov. 16, 1930, in spend with them. born Aug. 26, 1935, in Clinton. Okmulgee and graduate from He graduated from Tipton Okmulgee High School. He herry Lynn Walkabout of Tulsa High School in 1953, from OU attended OU where he earned both Sdied March 10. She was born with a Bachelor of Business his B.A. and LL.B. and was admit- July 29, 1954, in Siloam Springs, Administration in 1959 and from ted to the Oklahoma bar in 1954. He Arkansas. She attended TU where the OU College of Law in 1963. He then served two years in the U.S. she earned a Bachelor of Arts in practiced law in Oklahoma City Air Force as a JAG officer. After 2000 and graduated from the TU for more than 50 years. completing his military services, he College of Law in 2006. She was began practicing law in Oklahoma an active volunteer for Tulsa Legal City, where he developed a commer- Aid, serving impoverished women. cial litigation practice. He finished She also did pro bono legal work his legal career as an administra- for numerous friends that needed tive law judge for the Oklahoma her assistance and would always Corporation Commission, a position make herself available when a from which he retired at the age request for help came her way. She of 82. Memorial donations may had a love for bowling, attending be made to Armour Oaks Senior pro football and baseball games Living Community. and auto racing. Memorial dona- tions may be made to Sip for Sight ori Lorraine Lessard Stroud at www.sipforsight.com. Lof Frisco, Texas, died March 10, 2018. She was born June 10, 1966, ohn Paul Walters of Edmond in Omaha, Nebraska. She received Jdied March 5. He was born her J.D. from the OU College of Oct. 17, 1921, and graduated from Law in 1989. She was a senior Edmond High School in 1939. attorney adjudicator for more In 1942, he was called to active than 20 years and was a member duty and served three years in

THE OKLAHOMA BAR JOURNAL MAY 2019 | 71

2019 ISSUES AUGUST NOVEMBER Access to Justice Indian Law Editor: Melissa DeLacerda Editor: Leslie Taylor [email protected] [email protected] Deadline: May 1, 2019 Deadline: Aug. 1, 2019

SEPTEMBER DECEMBER Bar Convention Starting a Law Practice Editor: Carol Manning Editor: Patricia Flanagan patriciaaflanaganlawoffice@ OCTOBER cox.net Appellate Law Deadline: Aug. 1, 2019 Editor: Luke Adams [email protected] Deadline: May 1, 2019

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

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THE OKLAHOMA BAR JOURNAL MAY 2019 | 73 What’s Online

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74 | MAY 2019 THE OKLAHOMA BAR JOURNAL

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THE OKLAHOMA BAR JOURNAL MAY 2019 | 77 POSITIONS AVAILABLE POSITIONS AVAILABLE

OKLAHOMA BAR ASSOCIATION HEROES program TULSA MID-SIZE LITIGATION FIRM SEEKS is looking for several volunteer attorneys. The need for ATTORNEY with a minimum of three years’ experience FAMILY LAW ATTORNEYS is critical, but attorneys in all aspects of litigation as well as research and from all practice areas are needed. All ages, all counties. writing experience. Benefits package available. Send Gain invaluable experience, or mentor a young attorney, resume, cover letter, references and writing sample while helping someone in need. For more information to [email protected]. or to sign up, contact Margaret Travis, 405-416-7086 or [email protected]. ASSISTANT DISTRICT ATTORNEY. District 27 (Adair, Cherokee, Sequoyah and Wagoner counties). Salary GUNGOLL, JACKSON, BOX & DEVOLL, P.C. SEEKS range: commensurate with experience. Submit resume EXPERIENCED ESTATE PLANNING ATTORNEY. to [email protected]. Competitive pay and excellent benefits. Please send cover letter, résumé and writing sample to blanton@ EXPERIENCED LEGAL ASSISTANT OR LEGAL gungolljackson.com. SECRETARY needed for busy litigation firm. Competitive salary, health insurance, retirement, paid holidays and NORMAN BASED FIRM IS SEEKING A SHARP & leave. Must be “boots on the ground” in Lake Eufaula MOTIVATED ATTORNEY to handle HR-related matters. area – no remote work. 3-lawyer firm handling litigation Attorney will be tasked with handling all aspects of HR- in a 12 county area. Experience in family law a plus but related items. Experience in HR is required. Firm offers not required. Contact Deborah Reheard by mailing or health/dental insurance, paid personal/vacation days, emailing resume and references to P.O. Box 636, Eufaula, 401k matching program and a flexible work schedule. OK 74432; [email protected]. Members of our firm enjoy an energetic and team- oriented environment. Position location can be for any OKLAHOMA STATE UNIVERSITY FOUNDATION of our Norman, OKC or Tulsa offices. Submit resumes is accepting applications for a highly motivated and to [email protected]. experienced individual to serve as an ASSISTANT GENERAL COUNSEL. The assistant general counsel WATKINS TAX RESOLUTION AND ACCOUNTING primarily manages the foundation’s mineral interests; FIRM is hiring attorneys for its Oklahoma City and assists in drafting, revising and reviewing corporate and Tulsa offices. The firm is a growing, fast-paced setting contract documents; and researches legal issues affecting with a focus on client service in federal and state tax the foundation. Candidates must be an active member help (e.g. offers in compromise, penalty abatement, of the Oklahoma Bar Association. This position requires innocent spouse relief). Previous tax experience is excellent communication and interpersonal skills, the not required, but previous work in customer service ability to maintain strict confidentiality, exceptional is preferred. Competitive salary, health insurance and judgement, tact and integrity. Successful candidates will 401K available. Please send a one-page resume with have applicable legal experience. For more information, one-page cover letter to [email protected]. or to apply, visit https://osugiving.com/workforus.

78 | MAY 2019 THE OKLAHOMA BAR JOURNAL POSITIONS AVAILABLE

APPLICATIONS MUST BE RECEIVED AT DHS BY 11:59 PM OF THE CLOSING DATE OF THIS JOB ANNOUNCEMENT. Apply online at https://jobapscloud.com/OK/sup/bulpreview. asp?R1=190320&R2=UNCE&R3=123. Basic purpose of position: The DHS Child Support Services – South OKC CSS Office has an opening for a full-time attorney (CSS Attorney IV, $5,044.91 monthly) with experience in child support enforcement. This position will be located at 2701 S. Harvey, Oklahoma City, OK, 73125-0637. Typical functions: The position involves preparation and filing of pleadings and trial of cases in child support related hearings in district and administrative courts. Duties will also include consultation and negotiation with other attorneys and customers of Oklahoma Child Support Services, and interpretation of laws, regulations, opinions of the court and policy. Position will train and assist staff with preparation of legal documents and ensure their compliance with ethical considerations. Knowledge, skills, and abilities (KSA's): Knowledge of legal principles and their applications; of legal research methods; of the scope of Oklahoma statutory law and the provisions of the Oklahoma Constitution; of the principles of administrative and constitutional law; of trial and administrative hearing procedures; and of the rules of evidence; and skill in performing research, analyzing, appraising and applying legal principles, facts and precedents to legal problems; presenting explanation of legal matters, statements of facts, law and argument clearly and logically in written and oral form; and in drafting legal instruments and documents. Minimum qualifications: Preference may be given to candidates with experience in child support and/or family law. This position may be filled at an alternate hiring level as a Child Support Services attorney III (beginning salary $4,405.00 monthly), Child Support Services attorney II (beginning salary $4,067.91 monthly), or as a Child Support Services attorney I (beginning salary $3,689.25 monthly), dependent on child support or family law experience and minimum qualifications as per state policy. Notes: A conditional offer of employment to final candidate will be contingent upon a favorable background check and a substance abuse screening. Veteran's preference points do not apply to this position. If you need assistance in applying for this position contact Oklahoma Department of Human Services, Talent Acquisitions at 405-521-3613 or email STO.HRM. [email protected]. Benefits: This is a full-time unclassified state position with full state retirement and insurance benefits, including paid health, dental, life and disability insurance. Annual leave of 10 hours per month and sick leave of 10 hours per month begin accruing immediately.

THE OKLAHOMA BAR JOURNAL MAY 2019 | 79 The Back Page True Stories from Rural Oklahoma By Holly Cinocca

Y HUSBAND AND I the goat case on Monday.” Now to chase all the goats back to the Mpracticed law in Tulsa if that’s not funny enough in and owner’s yard.” I would love to have for 17 years, when my husband of itself, I actually had to ask him, body cam video of that. Well, after I decided to become a Methodist “Which one?” I’m pretty sure this began preparing for goat trial num- minister. His first assignment was is the only county with more than ber one, the defense attorney called to a couple of small churches in one pending goat case. At any rate, and decided to settle the case (his southeastern Oklahoma. Having this guy’s goats kept getting out client’s been baaaaaad). It’s a good practiced civil litigation in Tulsa and going in his neighbor’s yard, so thing, since I’m not sure I could’ve my entire career, I knew it was not the neighbor eventually called the argued it with a straight face. going to be easy to find a job in sheriff – and called and called. The following week, I read a rural Oklahoma. Luckily, the local The sheriff went out there a complaint from a woman who courthouse needed an assistant half dozen times to tell the guy to wanted her own husband arrested DA, and so my stent as a prosecu- keep the goats penned up. We’re for making obscene and threat- tor for LeFlore County, America, talking about 27 goats here, which ening phone calls. She had a tape. I listened, and sure enough, the husband sounded plenty mad and fairly obscene. He kept cussing someone named “Brother Dewayne.” So I asked her, “Who is Brother Dewayne?” “Well, he’s our preacher,” she said. “Why is your husband threatening the preacher?” I asked. “Um … probably because he caught us in bed together.” “Oh, that explains a lot,” I responded. I decided not to file any charges. One of our judges would always query male defendants who wore sleeveless t-shirts to court. One of my favorites went like this, “Sir, do you began. It was a bit of a culture I’m pretty sure could eat an entire know where you are?” “Uh… court?” shock, and I ended up writing a double-wide trailer if given enough “Yes. You’re in court. Now WHERE are book about our three-year adven- time. The particular sheriff’s deputy your sleeves?” (Long pause while the ture there. Here are a couple of who went out there is a guy who’s judge taps his finger.) “I think they’re snippets from my book, Greetings about as wide as he is tall. In one in my other shirt.” Giggles were From LeFlore County! report, he wrote, “There was heard from the prosecution’s table. One Friday, my boss (the DA) goat poop all over the neighbor’s came in my office and said, “It carport” (yeah, 27 goats worth of looks like you’re gonna have to try poop), and in another it said, “I had Ms. Cinocca practices in Tulsa.

80 | MAY 2019 THE OKLAHOMA BAR JOURNAL